NeoMedia Technologies, Inc.
Stock Purchase Agreement Dated August 30, 1997
By and Between NeoMedia Technologies, Inc. and
Xxxxxx Xxxxx and Xxxxxx X. Xxxxxx
Exhibit 99.1
STOCK PURCHASE AGREEMENT
NEOMEDIA TECHNOLOGIES, INC.
and
XXXXXX XXXXX and XXXXXX X. XXXXXX
AUGUST 30, 1997
TABLE OF CONTENTS
PAGE
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1. Definitions...........................................................1
1.1 "Assets".......................................................1
1.2 "Commitments"..................................................2
2. Sale and Delivery of ALS Shares.......................................2
2.1 ALS Shares.....................................................2
2.2 No Encumbrances................................................3
2.3 Delivery of Possession.........................................3
2.4 Instruments of Transfer........................................3
3. Issuance and Delivery of NeoMedia Stock...............................3
3.1 NeoMedia Shares................................................3
4. Closing...............................................................3
4.1 Date and Location..............................................3
5. Representations and Warranties of Sellers.............................4
5.1 Title to Shares, Authority.....................................4
5.2 Capital Stock..................................................4
5.3 Incorporation Documents........................................4
5.4 Organization and Good Standing.................................4
5.5 Subsidiaries, Divisions and Affiliates.........................5
5.6 No Outstanding Obligations.....................................5
5.7 Equity Investments.............................................5
5.8 Validity of Agreement..........................................5
5.9 Effect of Agreement............................................5
5.10 Restrictions, Burdensome Agreements............................5
5.11 Governmental and Other Consents................................6
5.12 Financial Statements...........................................6
5.13 Absence of Certain Changes or Events...........................6
5.14 Undisclosed Liabilities........................................8
5.15 Insurance......................................................8
5.16 Compliance with Laws...........................................9
5.17 Employees......................................................9
5.18 Employee Benefit Plans.........................................9
5.19 No Guarantees..................................................9
5.20 Accounts Receivable............................................9
5.21 Books and Records..............................................9
5.22 Absence of Litigation..........................................9
5.23 No Interest in Competitors....................................10
5.24 Taxes.........................................................10
5.25 Contracts and Agreements......................................10
5.26 No Defaults...................................................11
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5.27 No Consents Required..........................................11
5.28 Patents, Trademarks, Copyrights, etc..........................11
5.29 Permits, Licenses, etc........................................12
5.30 Marketable Title; No Liens....................................12
5.31 Powers of Attorney............................................12
5.32 Sufficiency of Assets and Commitments.........................12
5.33 Labor Disputes, Unfair Labor Practices........................12
5.34 Past Due Obligations..........................................13
5.35 Recent Dividends and Other Distributions......................13
5.36 No Untrue Statements..........................................13
5.37 Shares Held for Investments...................................13
5.38 Restrictive Legend............................................13
5.39 Knowledge of ALS and Sellers..................................14
6. Representations and Warranties of NeoMedia...........................14
6.1 Organization and Good Standing................................14
6.2 Capitalization................................................14
6.3 Corporate Authorization.......................................14
6.4 No Breach or Violation........................................14
6.5 Tax-Free Treatment............................................15
7. Pre-Closing Covenants of the Sellers.................................15
7.1 Conduct of Business Until Closing Date........................15
7.2 Access to Properties, Records, Suppliers, Agents, etc.........16
7.3 Advice of Changes.............................................16
7.4 Conduct.......................................................16
7.5 Employee Benefit Plans........................................17
7.6 Satisfaction of Conditions by Sellers.........................17
7.7 Non-Disclosure of Negotiations and Non-Usage of Documents
of NeoMedia...............................................17
8. Pre-Closing Covenants of NeoMedia....................................17
8.1 Satisfaction of Conditions by NeoMedia........................17
8.2 Confidentiality...............................................17
9. Post-Closing Covenants...............................................18
9.1 Further Assurances............................................18
9.2 Acquisitions by NeoMedia of Similar Businesses................18
9.3 Board of Directors' Meetings..................................18
9.4 Continued Business of ALS.....................................18
10. Conditions Precedent to the Obligations of NeoMedia..................18
10.1 Accuracy of Representations and Warranties....................19
10.2 Performance of Agreements.....................................19
10.3 Litigation, etc...............................................19
10.4 Approvals and Consents........................................19
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10.5 Seller's Certificate..........................................20
10.6 Officer's Certificate.........................................20
10.7 Good Standing Certificates....................................20
10.8 Material Adverse Change.......................................20
10.9 Actions, Proceedings, etc.....................................20
10.10 Opinion of Counsel to ALS.....................................20
10.11 Licenses, Permits, Consents, etc..............................20
10.12 Documentation of Rights.......................................21
10.13 Officers' Financial Certificate...............................21
10.14 Update of Exhibits............................................21
10.15 Completion of Due Diligence...................................21
10.16 Employment and Consulting Agreements..........................21
10.17 Stock Price...................................................21
10.18 Approval by Xxxxxx Xxxxxxx & Associates, Inc..................21
11. Conditions Precedent to the Obligations of the Sellers...............21
11.1 Accuracy of Representations and Warranties....................22
11.2 Performance of Agreements.....................................22
11.3 Employment and Consulting Agreements..........................22
11.4 Stock Price...................................................22
11.5 Commission Arrangements.......................................22
11.6 Taxes.........................................................22
11.7 Registration..................................................22
12. Miscellaneous........................................................22
12.1 Nature and Survival of Representations, Warranties, Covenants
and Indemnification.........................................22
12.2 Entire Agreement; Amendment...................................23
12.3 Notices.......................................................23
12.4 Severability..................................................24
12.5 Waivers.......................................................24
12.6 Headings; Certain Terms.......................................24
12.7 Counterparts..................................................25
12.8 Expenses......................................................25
12.9 Termination of Agreement......................................25
12.10 Transaction Taxes.............................................25
12.11 Binding Effect; Benefits......................................25
12.12 Disclosures...................................................26
12.13 Section References............................................26
12.14 Brokers and Finders...........................................26
12.15 Public Announcements..........................................26
12.16 No Strict Construction........................................26
12.19 Number and Gender.............................................26
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT is made as of this 30th day of August, 1997, by and
between NeoMedia Technologies, Inc. a Delaware corporation ("NeoMedia"), and
Xxxxxx Xxxxx and Xxxxxx X. Xxxxxx (collectively, "Sellers").
WHEREAS, Sellers are the owners of 200 shares of common capital stock
of Allegiant Legacy Solutions, Inc., an Ohio corporation ("ALS"), which
constitutes all of the issued and outstanding shares of common capital stock of
ALS; and
WHEREAS, ALS has only one class of authorized shares, such class being
common stock;
WHEREAS, Sellers are willing to sell and exchange all of their shares
in ALS for 1,070,000 shares of common stock of NeoMedia, and NeoMedia is willing
to issue and deliver to Sellers shares of its common capital stock, $.01 par
value, in exchange for all of the issued and outstanding shares of ALS, after
which the business of ALS shall be merged into NeoMedia pursuant to the terms
and conditions set forth in this Agreement;
WHEREAS, the parties intend that the transaction be treated as a
tax-free reorganization under Section 368(a)(1)(B) of The Internal Revenue Code;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by the parties, and of the terms, covenants and conditions
hereinafter contained, the parties hereto agree as follows:
1. DEFINITIONS
1.1 "ASSETS". As used in this Agreement, the term "Assets" shall mean
the assets of ALS (as of the Closing) as follows:
1.1.1 the business of ALS as a going concern, the goodwill
pertaining thereto and all of ALS's right, title and interest and to the names
Allegiant Legacy Solutions, Inc. and all other names used by ALS, as well as all
logos relating thereto;
1.1.2 all items of inventory owned by ALS including, without
limitation, all raw materials, work-in-progress and finished goods of ALS (all
of which are collectively referred to hereinafter as "Inventory");
1.1.3 all machinery, equipment (including equipment which has
previously been fully depreciated by ALS and equipment loaned to customers),
furniture, fixtures and
non-inventory supplies of ALS (including containers, packaging and shipping
material, tools and spare parts and other similar tangible personal property
owned by ALS, which are listed on Exhibit 1.1.3, all of which are collectively
referred to hereinafter as the "Equipment");
1.1.4 all of ALS's right, title and interest in and to the United
States and foreign rights of ALS currently owned or used by ALS (and the rights
proposed to be used) in the conduct of the business of ALS, with respect to
patents, patents pending, copyrights, formulae, licenses, trademarks, trademark
rights, trade names, service marks, service xxxx rights, trade secrets, shop
rights, know-how, technical information, techniques, discoveries, designs,
proprietary rights and non-public information of ALS and registrations, reissues
and extensions thereof and applications and licenses therefor (all of such
rights being collectively referred to hereinafter as the "Rights");
1.1.5 all books and records of ALS including all in-house mailing
lists, rented mailing lists, and other customer and supplier lists, trade
correspondence, production and purchase records, promotional literature, data
storage tapes and computer disks, computer software, order forms, accounts
payable records (including invoices, correspondence and all related documents),
accounts receivable ledger from November 30, 1996, through the Closing Date, all
documents relating to uncollected invoices, and all shipping records from
November 30, 1996, through the Closing Date;
1.1.6 all contracts, agreements and orders for goods and services
of ALS;
1.1.7 all trade receivables of ALS ("Accounts Receivable") and
all advance payments, prepaid items, rights to offset and credits of all kinds
of ALS;
1.1.8 all real property owned or leased by ALS together with all
fixtures attached thereto; and
1.1.9 all other assets of ALS.
1.2 "COMMITMENTS" shall mean all agreements, indentures, mortgages,
plans, policies, arrangements, and other instruments, including all amendments
thereto (or where they are verbal, written summaries of the material terms
thereof), fixed or contingent.
2. SALE AND DELIVERY OF ALS SHARES.
2.1 ALS SHARES. Subject to and on the terms and conditions hereof, in
reliance on the representations and warranties of NeoMedia and in consideration
of the issuance to Sellers of 1,070,000 shares of common stock of NeoMedia,
Sellers agree to sell, assign, transfer and deliver to NeoMedia at the Closing
200 shares of ALS (the "Shares"), together
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with all books and records of ALS, after which the business of ALS shall be
merged into NeoMedia and shall be accounted for as a pooling of interests.
2.2 NO ENCUMBRANCES. The Shares sold to NeoMedia hereunder shall be
fully paid and non-assessable, and shall be free and clear of any and all
contracts, commitments, agreements, liens, claims, charges, restrictions or
encumbrances of any kind or nature whatsoever, whether or not of record other
than restrictions imposed by federal and applicable state securities laws.
2.3 DELIVERY OF POSSESSION. At the Closing, Sellers shall deliver to
NeoMedia possession of the certificates representing the Shares. The
certificates representing the Shares shall be duly endorsed in blank or
accompanied by duly executed stock powers.
2.4 INSTRUMENTS OF TRANSFER. At the Closing, Sellers shall deliver, or
cause to be delivered, to NeoMedia such duly executed instruments as may be
reasonably requested by NeoMedia, including, without limitation, powers of
attorney, in form and substance reasonably satisfactory to NeoMedia and its
counsel, for the consummation of the transactions contemplated under this
Agreement, for the vesting in NeoMedia of all of Sellers' right, title and
interest in and to the Shares, or for the vesting in NeoMedia (after and by
reason of the change in ownership) of all right, title and interest in and to
the Assets.
3. ISSUANCE AND DELIVERY OF NEOMEDIA SHARES.
3.1 NEOMEDIA SHARES. Subject to and on the terms and conditions hereof,
in reliance on the representations and warranties of Sellers herein and in
consideration of the sale and transfer to them of the Shares, NeoMedia agrees to
issue and deliver to Sellers at the Closing 1,070,000 shares of common stock of
NeoMedia ("NeoMedia Shares"). The NeoMedia Shares, when issued and delivered
hereunder, shall be duly authorized, validly issued, fully paid and
non-assessable and shall be unregistered under the Securities Act of 1933, as
amended and shall contain the legend set forth in Section 5.38 hereof.
4. CLOSING.
4.1 DATE AND LOCATION. The closing of the transaction provided for
herein ("Closing") shall be held no later than September 30, 1997, at the
offices of NeoMedia in Fort Xxxxx, Florida, or at such other time and place as
the parties shall agree ("Closing Date"). All Closing transactions shall be
deemed to take place simultaneously, and no Closing transaction shall be deemed
consummated until all transactions to take place at the Closing have been
consummated.
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5. REPRESENTATIONS AND WARRANTIES OF SELLERS. Sellers each represent
and warrant to NeoMedia as follows, each of which representation and warranty is
material and is being relied upon by NeoMedia and each of which is true and
correct as at the date hereof and shall be true and correct as of the Closing,
with the same effect as if each such representation and warranty had been made
at and as of the Closing:
5.1 TITLE TO SHARES, AUTHORITY. Sellers are the owners of, and have
good and marketable title to, the Shares, free and clear of any and all
contracts, commitments, agreements, liens, claims or encumbrances, whether or
not of record. Each Seller has all requisite capacity, power and authority to
execute and deliver this Agreement and to perform his obligations hereunder.
5.2 CAPITAL STOCK.
(a) ALS has authorized capital stock consisting of 850 shares
of common stock, no par value, of which 200 shares are issued and
outstanding, and all of which are duly authorized, validly issued,
fully paid, nonassessable, free of preemptive rights, and were issued
in compliance with all federal and applicable state securities laws.
(b) Except as set forth in Exhibit 5.2 hereof, there are no
outstanding offers, options, warrants, rights, calls, commitments,
obligations (verbal or written), conversion rights, plans or other
agreements (conditional or unconditional) of any character providing
for, requiring or permitting the offer, sale, purchase or issuance of
any shares of capital stock of ALS or any other securities (as such
term is defined in the Securities Act of 1933, as amended). Except as
set forth in Exhibit 5.2, there are no equity securities of ALS that
are reserved for issuance or are outstanding.
(c) The Common Stock is owned by Sellers free and clear of
all liens, charges, encumbrances or claims of any kind whatsoever.
5.3 INCORPORATION DOCUMENTS. True and correct copies of the
incorporation documents and by-laws of ALS, together with all amendments
thereto, have been delivered to NeoMedia.
5.4 ORGANIZATION AND GOOD STANDING. ALS is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Ohio and is qualified to conduct business in Ohio and in all other jurisdictions
where the nature of its assets and business requires such qualifications and ALS
has the full corporate power and authority to own or lease its properties and
operate its properties and Assets, and to carry on its business as presently
being conducted.
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5.5 SUBSIDIARIES, DIVISIONS AND AFFILIATES. Except as set forth on
Exhibit 5.5, there are no subsidiaries, divisions or affiliates of ALS. Except
as set forth on Exhibit 5.5, the business of ALS has been conducted solely by
ALS and not through any affiliates, joint venture or other entity, person or
under any other name.
5.6 NO OUTSTANDING OBLIGATIONS. There are no contracts, options or
other agreements or understandings pursuant to which ALS is or may be obligated
to issue shares of its capital, and there are no obligations of ALS outstanding
which may be converted into any shares of capital of such corporation and,
except as disclosed herein, there are no other shares of ALS issued or
outstanding.
5.7 EQUITY INVESTMENTS. Except as set forth in Exhibit 5.7, ALS does
not own or have any rights to any equity interest, directly or indirectly, in
any corporation, partnership, joint venture, firm or other entity.
5.8 VALIDITY OF AGREEMENT. The execution, delivery and performance of
this Agreement has been duly and validly executed and delivered by Sellers. This
Agreement constitutes a valid and binding obligation of Sellers enforceable in
accordance with its terms, except that such enforcement may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally.
5.9 EFFECT OF AGREEMENT. The execution, delivery and performance of
this Agreement by Sellers and consummation by Sellers of the transactions
contemplated hereby, will not, with or without the giving of notice and the
lapse of time, or both, (a) violate any provision of law, statute, rule,
regulation or executive order to which ALS, or the Sellers, respectively, is
subject; (b) violate any judgment, order, writ or decree of any court applicable
to ALS, or Sellers, respectively, or (c) result in the breach of or conflict
with any term, covenant, condition or provision of, result in the modification
or termination of, constitute a default under, or result in the creation or
imposition of any lien, security interest, charge or encumbrance upon any of the
Assets pursuant to, any corporate charter, by-law, commitment, contract or other
agreement or instrument, including any of the Commitments, to which ALS or the
Sellers is a party or by which any of the Assets is or may be bound or affected
or from which ALS or Sellers derive benefit, which breach, conflict,
modification, termination, default or encumbrance described in this clause (c)
would be material to the business of ALS or any of its Assets.
5.10 RESTRICTIONS; BURDENSOME AGREEMENTS. Neither ALS nor Sellers is a
party to any contract, commitment or agreement, nor is any of them, the ALS
Shares or any of the Assets subject to, or bound or affected by, any provision
of the articles of incorporation, by-laws, or other corporate restriction, or
any order, judgment, decree, law, statute, ordinance, rule, regulation or other
restriction of any kind or character, which would, individually or in
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the aggregate, materially adversely affect ALS's business, the ALS Shares or any
of the Assets.
5.11 GOVERNMENTAL AND OTHER CONSENTS. No consent, authorization or
approval of, or exemption by, any governmental, public or self-regulatory body
or authority is required in connection with the execution, delivery and
performance by Sellers of this Agreement or by Sellers of any of the instruments
or agreements herein referred to, or the taking of any action hereby
contemplated.
5.12 FINANCIAL STATEMENTS. Except as disclosed in Exhibit 5.12 or as
otherwise disclosed herein, the interim financial statements for ALS for the
period ended July 31, 1997 (the "ALS Financial Statements"), present fairly the
financial position of such company as of the date to which they relate and have
been prepared as internally generated, unaudited financial statements, and to
the best of Sellers' knowledge, all items that could have a material adverse
effect on the willingness of a prospective purchaser to acquire ALS have been
disclosed in the ALS Financial Statements or in the Exhibits to this Agreement.
5.13 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since July 31, 1997, except
as disclosed on Exhibit 5.13, ALS has not suffered any adverse changes in, or
the occurrence of any events which, individually or in the aggregate, has or
have had, or might reasonably be expected to have, a material adverse affect on,
ALS's financial condition, results of operations, business, the value of the
Assets or the Shares. Without limiting the generality of the foregoing, except
as set forth on Exhibit 5.13:
5.13.1 ALS has not sold, leased, transferred, or assigned any of
its Assets, tangible or intangible, other than for fair consideration
in the ordinary course of business;
5.13.2 ALS has not entered into any agreement, contract, lease, or
license (or series of related agreements, contracts, leases, and
licenses) either involving more than $50,000 or outside the ordinary
course of business or entered into any transactions not in the ordinary
course of business which would, individually or in the aggregate,
materially adversely affect the Assets or the business of ALS;
5.13.3 no party (including ALS) has accelerated,
terminated, modified, or canceled any agreement, contract, lease, or
license (or series of related agreements, contracts, leases, and
licenses) to which ALS is a party or by which it is bound which
involves more than $50,000;
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5.13.4 ALS has not made any capital expenditure (or series of
related capital expenditures) either involving more than $50,000 or
outside the ordinary course of business;
5.13.5 ALS has not made any capital investment in, any loan to, or
any acquisition of the securities or assets of, any other person (or
series of related capital investments, loans, and acquisitions) either
involving more than $50,000 or outside the ordinary course of business;
5.13.6 ALS has not issued any note, bond, or other debt security
or created, incurred, assumed, or guaranteed any indebtedness for
borrowed money or capitalized lease obligation either involving more
than $50,000 singly or any group of related transactions totaling more
than $50,000 in the aggregate;
5.13.7 ALS has not delayed or postponed the payment of accounts
payable or other liabilities outside the ordinary course of business;
5.13.8 ALS has not canceled, compromised, waived, or released any
right or claim (or series of related rights and claims) or other
indebtedness owing to ALS;
5.13.9 Other than distributions necessary to pay Sellers'
respective portion of income taxes as approved, or to be approved, by
NeoMedia, ALS has not declared, set aside, or paid any dividend or made
any distribution with respect to its capital stock (whether in cash or
in kind);
5.13.10 ALS has not experienced any damage, destruction, or loss
(whether or not covered by insurance) to any of its Assets;
5.13.11 ALS has not made any loan to, or entered into any other
transaction with, any of its directors, officers, and employees;
5.13.12 ALS has not granted any increase in the compensation of
any of its directors, officers, and employees or made any other change
in employment terms for any of its directors, officers, and employees;
5.13.13 ALS has not adopted, amended, modified, or terminated any
bonus, profit-sharing, incentive, severance, or other plan, contract,
or commitment for the benefit of any of its directors, officers, and
employees;
5.13.14 ALS has not made or pledged to make any charitable or
other capital contribution outside the ordinary course of business;
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5.13.15 sold, assigned, transferred or granted any rights under or
with respect to any Rights;
5.13.16 there has not been any other material adverse occurrence,
event, incident, action, failure to act, or transaction outside the
ordinary course of business involving ALS; and
5.13.17 ALS has not committed to any of the foregoing.
5.14 UNDISCLOSED LIABILITIES. ALS has no liability, and, to the best of
Sellers' knowledge, there is no basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand against
ALS giving rise to any liability, except for (a) liabilities set forth on the
face of the balance sheet of ALS dated July 31, 1997, and (b) liabilities which
have arisen after the most recent fiscal month end in the ordinary course of
business, none of which results from, arises out of, relates to, is in the
nature of, or was caused by any breach of contract, breach of warranty, tort,
infringement, or violation of law.
5.15 INSURANCE. There are no outstanding or unsatisfied written
requirements or repeated verbal recommendations imposed or made by any of ALS's
current insurance companies with respect to current policies covering any of the
Assets, or by any governmental authority requiring or recommending, with respect
to any of the Assets, that any repairs or other work be done on or with respect
to, or requiring or recommending any equipment or facilities be installed on or
in connection with, any of the Assets. ALS carries, and (with respect to any
period for which a claim against ALS may still arise) has always carried
worker's compensation insurance in reasonable amounts, and other insurance which
is reasonably necessary to the conduct of ALS's business. On Exhibit 5.15 is set
forth a correct and complete list of (a) all currently effective insurance
policies and fidelity and surety bonds covering the Assets or the business of
ALS, and their respective annual premiums (as of the last renewal or purchase of
new insurance), and (b) for the fiscal-year period ending on the date hereof,
(i) all accidents, casualties or damage occurring on or to the Assets or
relating to the business or products of ALS which in the aggregate are in excess
of $10,000, and (ii) claims for damages, contribution or indemnification and
settlements (including pending settlement negotiations) relating thereto which
in the aggregate are in excess of $10,000. Except as set forth on Exhibit 5.15,
as of the date hereof there are no disputes with underwriters of any such
policies and bonds, and to the best knowledge of Sellers, there is no condition
or circumstance applicable to the business of ALS, other than the sale of the
ALS Shares pursuant to this Agreement, which may result in such termination or
increase. ALS and the Assets are in compliance with all conditions contained in
such policies or bonds, except for non-compliance which, individually or in the
aggregate, would not have a material adverse affect on the business of ALS or
the Assets.
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5.16 COMPLIANCE WITH LAWS. To the best of Sellers' knowledge, ALS
materially has complied, and is currently in material compliance, with all
applicable laws, statutes and ordinances, rules, regulations, codes, plans,
injunctions, judgments, orders, decrees, rulings, and charges of federal, state,
local, and foreign governments, and all agencies thereof, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or notice
has been filed or commenced against any of them alleging any failure so to
comply.
5.17 EMPLOYEES. The Sellers have delivered to NeoMedia a list, attached
as Exhibit 5.17, setting forth the names of all directors, officers and
employees (by classification or type) of ALS and their respective rates of
compensation, including the portions thereof attributable to bonuses, and any
other salary, bonus or other payment arrangement made with or promised to any of
them.
5.18 EMPLOYEE BENEFIT PLANS. ALS has not at any time maintained,
sponsored, adopted, made contributions to or obligated itself to make
contributions to or to pay any benefits or grant rights under or with respect to
(1) any pension, profit sharing or other plan of deferred compensation; (2) any
medical plan, life insurance plan, short-term or long-term disability plan,
severance plan, dental plan or other employee benefit plan or employee welfare
benefit plan within the meaning of the Employee Retirement Income Security Act
of 1974 ("ERISA"); or (3) any personnel policy, excess benefit, bonus or
incentive plan (including stock options, restricted stock, stock bonus, and
deferred bonus plans), salary reduction agreements, change-of-control
agreements, employment agreements or consulting agreements.
5.19 NO GUARANTEES. ALS is not a guarantor or otherwise liable for any
liability or obligation (including indebtedness) of any other person.
5.20 ACCOUNTS RECEIVABLE. Exhibit 5.20 contains a list of the accounts
receivable and customer list of ALS as of July 31, 1997.
5.21 BOOKS AND RECORDS. The books of account and other financial and
corporate records of ALS are in all material respects complete, correct and up
to date, with all necessary signatures, and are in all material respect
accurately reflected in the ALS Financial Statements.
5.22 ABSENCE OF LITIGATION. Except as set forth on Exhibit 5.22 hereto:
(a) there are no claims, actions, suits, proceedings,
arbitrations, investigations or hearings pending, or to the best of the
knowledge of Sellers, threatened against or affecting the licenses,
business, operations, properties or Assets or the condition, financial
or otherwise, of ALS, or in any way involving this
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Agreement or the transaction contemplated hereby. To the best knowledge
of Sellers, ALS has not waived any statute of limitations or other
affirmative defense with respect to any of its obligations. There is no
continuing order, injunction or decree of any court, arbitrator or
governmental or administrative authority to which ALS is a party, or,
to the best knowledge of Sellers, to which ALS is subject. Neither ALS
nor Sellers, or any other current officer, director, partner or
employee of ALS or any affiliate of ALS has been permanently or
temporarily enjoined or barred by order, judgment or decree of any
court or other tribunal or any agency or self-regulatory body from
engaging in or continuing any conduct or practice in connection with
the business engaged in by the ALS.
(b) there is no order or decree of any court or agency directed to
ALS arising out of any judicial, or quasi-judicial, proceeding before
any such court or agency with respect to ALS being in default of an
order of such court or agency.
5.23 NO INTEREST IN COMPETITORS. Set forth on Exhibit 5.23 is a list
describing the extent to which ALS and Sellers or any other officer or director
of ALS or any affiliate of any of the foregoing, directly or indirectly, owns
more than a five percent (5%) interest in or controls or is an employee,
officer, director, or partner of or participant in (but only to the extent such
a participation exceeds one percent), or consultant to any corporation,
partnership, limited partnership, joint venture, association or other entity
which is a competitor, supplier or customer of ALS or has any type of business
or professional relationship with ALS.
5.24 TAXES. Except as reflected in the ALS Financial Statements or in
Exhibit 5.24 or in respect of taxes accruing with respect to the current fiscal
year: (a) ALS has duly filed on a timely basis all tax returns required to be
filed by it, and has paid all assessments and reassessments, and all other
taxes, governmental charges, penalties, interests and fines due and payable by
it on or before the date hereof and which are claimed by any governmental
authority to be due and owing; and (b) there are no actions, suits, proceedings,
investigations or claims threatened or, to the best of Sellers' knowledge,
pending against ALS with respect to taxes, governmental charges or assessments
or any other matters under discussion with any governmental authority relating
to taxes, governmental charges or assessments asserted by any such authority.
5.25 CONTRACTS AND AGREEMENTS. Exhibit 5.25 sets forth all material
contracts, agreements, licenses and leases of all kind to which ALS is a party
and, except for the items listed on such schedule, ALS is not a party to any
contract, agreement or lease of any kind, and all such contracts, agreements and
leases are valid, effective and in good standing, and no party thereto is in
default or breach thereof. ALS is not a party to any material contract,
agreement, license or lease of any kind, except as set forth on Exhibit 5.25
hereto.
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5.26 NO DEFAULTS. Except as set forth on Exhibit 5.26, ALS has
fulfilled, or has taken all action reasonably necessary to enable it to fulfill
when due, all of its obligations under the Commitments, except where the failure
to do so would not, individually or in the aggregate, have a material adverse
effect on the business of ALS or the Assets. Furthermore, there has not occurred
any default by ALS or any event which, with the lapse of time or the election of
any person other than ALS, will become a default, nor to the knowledge of
Sellers has there occurred any default by others or any event which, with the
lapse of time or the election of ALS, will become a default under any of the
Commitments, except for such defaults, if any, which (a) have not resulted and
will not result in any material loss to or liability of ALS or any of its
successors or assigns or (b) have been indicated on Exhibit 5.26. ALS is not in
arrears in any material respect with respect to the performance or satisfaction
of the terms and conditions to be performed or satisfied by it under any of the
Commitments and, to the best of Seller's knowledge and belief, no waiver or
variance has been granted by any of the parties hereto.
5.27 NO CONSENTS REQUIRED. After the change in ownership of ALS, except
as set forth on Exhibit 5.27, each of the Commitments included in the Assets
does not require the consent of the other parties thereto and, with respect to
any of the Commitments which do require the consent of the other parties
thereto, ALS has obtained or prior to the Closing will obtain such consent and
has provided or will provide NeoMedia with copies thereof.
5.28 PATENTS, TRADEMARKS, COPYRIGHTS, ETC. Exhibit 5.28 sets forth (a)
the registered and beneficial owner and the expiration date, to the extent
applicable, for each of the Rights set forth on such Exhibit and (b) the product
or products of ALS which make use of, or are sold, licensed or made under, each
such Right. All of the Rights are included in the Assets and constitute all
Rights necessary for the conduct of the business of ALS, as such business is
currently being conducted. Except as set forth on Exhibit 5.28, ALS has not
sold, assigned, transferred, licensed, sub-licensed or conveyed the Rights, or
any of them, or any interest in the Rights, or any of them, to any person, and
has the entire right, title and interest (free and clear of all security
interests, liens and encumbrances of every nature) in and to the Rights
necessary to the conduct of the business of ALS as currently being conducted;
neither has the validity of such items been, nor is the validity of such items,
nor the use thereof by ALS, the subject of any pending or, to the best knowledge
of Sellers, threatened opposition, interference, cancellation, nullification,
conflict, concurrent use, litigation or other proceeding. To the best knowledge
of Sellers, the conduct of the business of ALS as currently operated (including
the use by ALS's customers of ALS's products for the uses for which ALS markets
its products to its customers in the ordinary course of business) does not and
will not conflict with, or infringe, legally enforceable rights of third
parties. Except as set forth on Exhibit 5.28, to the best
11
knowledge of Sellers, the Rights owned by or licensed to ALS have not been used,
and no use is now being made, by any entity except ALS and other entities duly
licensed to use the same. Except as set forth on Exhibit 5.28, to the best
knowledge of Sellers, there is no infringement of any proprietary right owned or
licensed by ALS. All Rights, if any, previously held or now held by Sellers and
relating to the business of ALS in any manner, have been duly and effectively
transferred to ALS and all such Rights are included in the Assets.
5.29 PERMITS, LICENSES, ETC. There are no permits, licenses, orders or
approvals of governmental or administrative authorities required to permit ALS
to carry on its business as currently conducted (other than (a) permit,
licenses, orders and approvals which are set forth on Exhibit 5.29, all of which
are in full force and effect, and (b) other permits, licenses, orders and
approvals, the failure to obtain which would not, individually or in the
aggregate, have a material adverse effect on the Assets or on ALS's business).
5.30 MARKETABLE TITLE; NO LIENS. Except as set forth in Exhibit
5.30, or as otherwise disclosed herein, ALS owns and has good and marketable
title to all of the personal property and assets, tangible or intangible, as
reflected on the ALS Financial Statements (except for assets disposed of in the
ordinary course of business since the respective dates of the ALS Financial
Statements), free and clear of all contracts of sale, liens, mortgages, pledges,
security interests, charges, restrictions, prior assignments, encumbrances and
claims of every kind.
5.31 POWERS OF ATTORNEY. Except as set forth on Exhibit 5.31, no person
has any power of attorney to act on behalf of ALS in connection with any of
ALS's properties or business affairs other than such powers to so act as
normally pertain to the officers of ALS.
5.32 SUFFICIENCY OF ASSETS AND COMMITMENTS. Except as set forth in
Exhibit 5.32, the Assets and the Commitments, taken in the aggregate, are
sufficient to the best knowledge of Sellers, and constitute all of the property
and Rights necessary, for the continuation of the business and operations of ALS
on a basis consistent with past operations.
5.33 LABOR DISPUTES, UNFAIR LABOR PRACTICES. Except as set forth on
Exhibit 5.33, ALS is not engaged in any labor practice which, to the best
knowledge of Sellers, would have a material adverse affect on the Assets or
ALS's business. There is no pending or affirmatively threatened (a) unfair labor
practice complaint, charge, labor dispute, strike, slowdown, walkout or work
stoppage before the National Labor Relations Board or any other authority or (b)
grievance or arbitration proceeding arising out of or under a collective
bargaining agreement involving employees of ALS. There have been no strikes,
labor disputes, slowdowns, walkouts, or work stoppages involving employees of
ALS during the last three years. To the best knowledge of Sellers, no union
representation question exists with respect to the employees of ALS and, to the
best knowledge of Sellers, no union organizing activities are taking place. ALS
has not received notice from any of its employees of such employee's
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intent to terminate his or here employment or bring any action against ALS for
any reason related to the transactions contemplated by this Agreement or for any
other reason.
5.34 PAST DUE OBLIGATIONS. Except as set forth on Exhibit 5.34, no past
due obligations of ALS over $5000 have given rise or shall give rise within 5
days after the Closing Date (except as such will be performed by ALS prior to
the Closing so as to relieve NeoMedia of all liability therefor) to any
additional liability to NeoMedia on account of their being past due.
5.35 RECENT DIVIDENDS AND OTHER DISTRIBUTIONS. There has been no
dividend or other distribution of assets or securities whether consisting of
money, property or any other thing of value, declared, issued or paid to or for
the benefit of Sellers subsequent to the date of the most recent ALS Financial
Statements by ALS.
5.36 NO UNTRUE STATEMENTS. Neither this Agreement nor any documents,
certificates or statements furnished to NeoMedia by or on behalf of Sellers in
connection herewith contains any untrue statement of a material fact or omits to
state a material fact (materiality being determined in relation to ALS taken as
a whole) necessary in order to make the statements contained herein and therein
not misleading. There is no fact known to Sellers, which materially adversely
affects, or in the future may materially adversely affect, the business,
properties, assets, prospects or financial condition of ALS which has not been
set forth in this Agreement or the exhibits hereto or otherwise disclosed in
writing to NeoMedia including by means of the financial statements for ALS.
5.37 SHARES HELD FOR INVESTMENT. Sellers are acquiring the NeoMedia
Shares hereunder solely for their own account, for investment, and not with a
view to the distribution or resale thereof. Sellers represent and warrant that
they have no present intention of selling or distributing any of the NeoMedia
Shares to be acquired hereunder and that they are not under any present
necessity or constraint to dispose of any such NeoMedia Shares to satisfy any
existing or contemplated debt or undertaking.
5.38 RESTRICTIVE LEGEND. Sellers confirm their understanding, and
agree, that:
(a) Certificates for the NeoMedia shares to be issued and
delivered to them hereunder will bear substantially the following
legend:
"The securities represented by this Certificate were issued
_____________, without registration under the Securities Act
of 1933, as amended. No transfer, sale or distribution of
these securities or any interest therein may be made except
under an effective registration statement under said Act
covering such
13
securities unless the Corporation has received an opinion of
counsel satisfactory to it that such transfer or sale does
not require registration under said Act."
(b) Sellers shall be bound by the terms of the foregoing legend
and agree that appropriate restrictions on transfer will be noted on
NeoMedia's corporate records and the records of NeoMedia's transfer
agent.
5.39 KNOWLEDGE OF ALS AND SELLERS. As to each representation and
warranty made by Sellers under this Section 5, any fact or information known to
ALS or notice received by ALS, shall be imputed to Sellers as if such fact or
information were known to Sellers or such notice was received by Sellers.
6. REPRESENTATIONS AND WARRANTIES OF NEOMEDIA. NeoMedia represents and
warrants to Sellers that the following are true and correct as of the date
hereof:
6.1 ORGANIZATION AND GOOD STANDING. NeoMedia is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is validly existing and in good standing under its jurisdiction of
incorporation and is qualified to do business in the jurisdiction in which such
qualification is required and has the full corporate power and authority to own,
lease and operate its property and businesses.
6.2 CAPITALIZATION. NeoMedia has an authorized capitalization of
15,000,000 shares of capital stock, all of which is designated as common stock.
There are presently issued and outstanding 5,381,701 shares of common stock of
NeoMedia. No other stock of such corporation is outstanding.
6.3 CORPORATE AUTHORIZATION. The execution and performance of this
Agreement and the issuance and delivery of the NeoMedia shares in accordance
with the provisions hereof have been duly authorized by all necessary corporate
action on the part of NeoMedia and this Agreement constitutes a valid, binding
and enforceable obligation upon NeoMedia except that such performance may be
limited by bankruptcy, insolvency, or other similar laws affecting the
enforcement of creditors' rights generally.
6.4 NO BREACH OR VIOLATION. The execution and performance of this
Agreement and compliance with the provisions hereof by NeoMedia will not
violate, with or without the giving of notice or the passage of time, any
applicable law or regulation and will not conflict with, or result in the breach
of, any of the terms, conditions or provisions of, or constitute a default
under, any corporate charter, by-law, indenture, mortgage, agreement or other
instrument to which NeoMedia is bound.
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6.5 TAX-FREE TREATMENT. NeoMedia shall not take any action or fail to
take any action which deprives or could deprive the Sellers of their rights to
treat the transactions contemplated by this Agreement under Section 368(a)(1)(B)
of the Code.
7. PRE-CLOSING COVENANTS OF THE SELLERS.
Sellers hereby covenant and agree with NeoMedia that Sellers shall do,
or cause ALS to do, the following, between the date of this Agreement and the
Closing Date or date of termination of this Agreement, as the case may be:
7.1. CONDUCT OF BUSINESS UNTIL CLOSING DATE. Acknowledging that Sellers
cannot control certain factors that are beyond Seller's control and that are
external to the business of ALS (e.g., natural disasters, political turmoil and
financial market fluctuations) and except as permitted or required hereby or as
NeoMedia may otherwise consent in writing, Sellers shall cause ALS to:
7.1.1 operate the business of ALS only in the usual, regular and
ordinary manner, and use their best efforts to (a) preserve the present
business organization of ALS intact, (b) keep available the services of
the present employees of ALS who are listed on Exhibit 5.17, and (c)
preserve the current business relationships of ALS with customers,
suppliers, distributors and others having business dealings with it;
7.1.2 bear the risk of loss or damage to the Assets on and prior
to the Closing Date where such risk of loss is not the legal obligation
of another, and maintain all properties necessary for the conduct of
the business of ALS, whether owned or leased;
7.1.3 maintain the books, records and accounts of ALS in the
usual, regular and ordinary manner, on a basis consistent with prior
periods;
7.1.4 duly comply with all laws which, to the best of Sellers'
knowledge, apply to ALS and to the conduct of its business;
7.1.5 perform all of the obligations of ALS without default,
unless such default is of no significance to ALS and could have no
adverse impact on ALS, its Assets or business;
7.1.6 neither (a) amend ALS's Articles of Incorporation or
by-laws; (b) merge with or into, consolidate, amalgamate or otherwise
combine with, any other entity, or agree to do any of the foregoing;
nor (c) change the character of the business of ALS;
15
7.1.7 neither (a) encumber, mortgage, or voluntarily subject to
lien any of the existing Assets; (b) transfer, sell, lease, license or
otherwise dispose of any of, or any part of, the Assets (other than
sales, licensing and usage of Inventory and usage of Equipment in the
ordinary course of business); (c) convey, transfer or acquire any
Assets or property to, for or on behalf of ALS, other than in the
ordinary course of business; (d) enter into any arrangement, agreement
or undertaking, with respect to any of ALS's employees relating to the
payment of any bonus, severance, profit-sharing or special compensation
or any increase in the compensation payable or to become payable to any
such employee; nor (e) incur any material fixed or contingent
obligation or enter into any agreement, commitment, contract or other
transaction or arrangement relating to the business of ALS or the
Assets;
7.1.8 not make any distributions or dividends of Assets or
securities, nor any changes to the capital structure of ALS; and
7.1.9 neither modify, change or terminate any of its material
obligations other than in the ordinary course of business, nor grant
any power of attorney with respect to the business of ALS or the Assets
to any party except NeoMedia.
7.2 ACCESS TO PROPERTIES, RECORDS, SUPPLIERS, AGENTS, ETC. Sellers
shall cause ALS to give NeoMedia and to NeoMedia's counsel, financiers,
accountants and other representatives access to and copies of such of ALS's
properties, personnel, books, tax returns, contracts, commitments and records as
relate to the Assets, suppliers, agents, identities of rented lists, or other
aspects of the business of ALS, and shall furnish to NeoMedia and such
representatives all such additional instruments, contracts, documents or other
written obligations (certified by officers of ALS, if so requested) and
financial and other information concerning such business, Assets, suppliers,
agents, and other aspects of the business of ALS as NeoMedia or its
representatives may from time to time request.
7.3 ADVICE OF CHANGES. If the Sellers become aware of any fact or facts
which, if known at the date hereof, would have been required to be set forth or
disclosed in or pursuant to this Agreement or which, individually or in the
aggregate, could materially adversely affect the business, Assets or common
stock of ALS, Sellers shall promptly advise NeoMedia in writing thereof.
7.4 CONDUCT. Except as permitted or required hereby or as NeoMedia may
otherwise consent in writing, neither ALS nor Sellers shall enter into any
transaction or take any action which would result in any of the representations
and warranties of ALS or Sellers contained in this Agreement or in any other
document not being true and correct as of the time immediately after such
transaction has been entered into or such event has occurred and on the Closing
Date.
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7.5 EMPLOYEE BENEFIT PLANS. Except for payment of ALS's current
obligations, Sellers shall cause ALS not to incur any additional obligations and
liabilities, including (a) all liabilities for all claims incurred, whether or
not reported, on or before the Closing Date under all "employee welfare benefit
plans," within the meaning of ERISA, (b) all liabilities or obligations for
vacations or sick leave or retiree, medical or life benefits to employees or
former employees of ALS, and (c) all liabilities of ALS for all benefits accrued
under any "employee pension benefit plan," within the meaning of ERISA under
each Employee Benefit Plan.
7.6 SATISFACTION OF CONDITIONS BY SELLERS. Sellers hereby covenant and
agree with NeoMedia, that, between the date of this Agreement and the Closing
Date or date of termination of this Agreement, as the case may be, Sellers shall
use their best efforts to assure that the conditions set forth in Section 10
hereof are satisfied by the Closing Date.
7.7 NON-DISCLOSURE OF NEGOTIATIONS AND NON-USAGE OF DOCUMENTS OF
NEOMEDIA. The Sellers hereby covenant and agree with NeoMedia that, except as
may be required by law, the Sellers shall not use, show, display, describe or
otherwise disclose, directly or indirectly and shall cause ALS not to use, show,
display, describe or otherwise disclose, directly or indirectly, in any manner,
this Agreement, any Exhibits hereto or any other document created by NeoMedia's
counsel, in whole or in part, which was the subject of negotiations between
NeoMedia and Sellers, or any of the terms or other aspects of the negotiations
between NeoMedia and Sellers, in the event that the Closing shall not occur for
any reason. Sellers further agree that they will return and instruct all of
their advisors, representatives and other parties to return to NeoMedia all
documents or other written materials regarding this transaction that were
obtained from NeoMedia or its counsel during the course of the negotiations
(including all drafts of all documents).
Prior to the Closing, Sellers will use their best efforts to keep
confidential any and all information furnished to them by NeoMedia in the course
of the negotiations. If for any reason the Closing shall not occur, Sellers will
continue to use their best efforts to keep such information confidential, to the
extent that it is protectable by law.
8. PRE-CLOSING COVENANTS OF NEOMEDIA.
8.1 SATISFACTION OF CONDITIONS BY NEOMEDIA. NeoMedia hereby covenants
and agrees with ALS, that, between the date of this Agreement and the Closing
Date or date of termination of this Agreement, as the case may be, NeoMedia
shall use its best efforts to assure that the conditions set forth in Section 11
hereof are satisfied by the Closing Date.
8.2 CONFIDENTIALITY. Prior to the Closing, NeoMedia will use its best
efforts to keep confidential any and all information furnished to it by ALS or
the Sellers in the course of
17
negotiations. If for any reason the Closing shall not occur, NeoMedia will
continue to use its best efforts to keep such information confidential, to the
extent that it is protectable by law, and will not use it and will return to
Sellers all documents or other written material regarding this transaction that
were obtained during the course of negotiations (including all drafts of all
documents).
Prior to Closing, NeoMedia will use its best efforts to keep
confidential any and all information furnished to it by Sellers in the course of
the negotiations. If for any reason the Closing shall not occur, NeoMedia will
continue to use its best efforts to keep such information confidential, to the
extent that it is protectable by law.
9. POST-CLOSING COVENANTS.
9.1 FURTHER ASSURANCES. After the Closing hereunder, each party shall,
at the request of the other parties, execute, acknowledge and deliver, without
further consideration, all such further assignments, conveyances, endorsements,
deeds, powers of attorney, consents and other documents and take such other
action as may reasonably be requested (a) to transfer to and fully vest in
NeoMedia, and protect NeoMedia's right, title and interest in and to, all of the
ALS Shares, and ALS's right, title and interest in and to the Assets and (b)
otherwise to consummate the transactions contemplated by this Agreement.
9.2 ACQUISITIONS BY NEOMEDIA OF SIMILAR BUSINESSES. Prior to NeoMedia's
acquiring any Year 2000 or migration business, NeoMedia shall consult with and
seek the advice of Sellers, although Sellers shall not have veto authority over
such proposed acquisition.
9.3 BOARD OF DIRECTORS' MEETINGS. As long as Sellers' shares are
neither registered for sale nor available for sale under an exemption under The
Securities Act of 1933, Sellers shall be invited to attend all Board of
Directors' meetings of NeoMedia, except as to matters deemed confidential by the
Board.
9.4 CONTINUED BUSINESS OF ALS. Subject to reasonable business judgment,
NeoMedia shall use reasonable efforts to keep the operations of ALS, as existing
as of the Closing, intact and shall use reasonable efforts to transfer to ALS
portions of NeoMedia's existing business of similar nature to that of ALS.
10. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF NEOMEDIA.
The obligations of NeoMedia pursuant to this Agreement are subject to
the satisfaction at the Closing of each of the following conditions, any or all
of which conditions may be waived by NeoMedia in its sole discretion:
18
10.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by the Sellers (contained in this Agreement, any Exhibit
hereto, or any certificate or instrument delivered to NeoMedia or its
representatives by the Sellers or their representatives) shall be true on and as
of the Closing Date with the same force and effect as though made on and as of
the Closing Date (I.E., with respect to a representation that a state of facts
exists on or as of the date hereof, it is a condition that such state of acts
exists on or as of the Closing Date; and with respect to a representation that a
state of facts has or has not changed between a date prior to the date hereof
and the date hereof, it is a condition that such state of facts has or has not
changed between such prior date and the Closing Date), except as affected by the
transactions contemplated hereby.
10.2 PERFORMANCE OF AGREEMENTS. Sellers shall have performed and
complied with and shall have caused ALS to perform and comply with all
covenants, obligations and agreements to be performed or complied with by them
on or before the Closing Date pursuant to this Agreement.
10.3 LITIGATION, ETC.
10.3.1 Except as set forth on Exhibit 5.22, no claim, action,
suit, proceeding, arbitration, investigation or hearing or notice of
hearing shall be pending or, insofar as is known to Sellers, threatened
against or affecting ALS or Sellers or any of the Assets, which (a)
might result either in an action to enjoin or prevent the consummation
of the transactions contemplated by this Agreement; or (b) would
materially adversely affect the business of ALS or the ability of
NeoMedia to consummate the transactions contemplated by this Agreement
or to own the Assets or to operate the business of ALS.
10.3.2 ALS shall not be in violation of any law, statute,
ordinance, regulation or executive order, the enforcement of which
would, individually or in the aggregate, materially adversely affect
the Assets or the business of ALS; or which would, individually or in
the aggregate, materially adversely affect the ability of NeoMedia to
consummate the transactions contemplated by this Agreement or to own
the Assets or to operate the business of ALS.
10.3.3 No law, regulation or decree shall have been proposed,
adopted or promulgated, or have become effective, the enforcement of
which would materially adversely affect the ability of NeoMedia to
consummate the transactions contemplated by this Agreement or to own
the Assets or to operate any such business.
10.4 APPROVALS AND CONSENTS. ALS shall have obtained, and NeoMedia
shall have received copies of all of the approvals and consents referred to in
Section 5.27, each of which
19
approvals and consents shall be in full force and effect and reasonably
satisfactory in form and substance to NeoMedia and its counsel.
10.5 SELLER'S CERTIFICATE. NeoMedia shall have received an accurate
certificate of Sellers dated the Closing Date, satisfactory in form and
substance to NeoMedia and its counsel, certifying (a) as to the fulfillment of
the matters specified in Sections 10.1 through 10.3, and (b) any changes that
NeoMedia is required to be notified of pursuant to Section 7.3, or that
previously had not been disclosed to NeoMedia.
10.6 OFFICER'S CERTIFICATE. NeoMedia shall have received an accurate
certificate, dated the Closing Date, of the President of ALS, dated as of the
Closing date, stating, among other things, that he is not aware of any material
omissions or facts that would materially alter any of the ALS Financial
Statements, nor is he aware of any facts or factors that are reasonably likely
to occur, or if known to other parties, that could have a material adverse
affect on the financial condition, business, operations, Assets, liabilities,
management or prospects of ALS.
10.7 GOOD STANDING CERTIFICATES. NeoMedia shall have received (a) a
certificate of the Office of the Secretary of State of Ohio, dated within 30
days before the Closing Date, certifying that the records of such state
regarding ALS in such state reflect neither a certificate of dissolution, a
court order declaring dissolution, a merger or consolidation which terminated
its existence, nor suspension of its corporate powers, rights and privileges,
and that in accordance with the records of such state, such corporation is
authorized to exercise all of its corporate powers, rights and privileges in
such state.
10.8 MATERIAL ADVERSE CHANGE. There have been no material adverse
changes in the financial condition, business, operations, assets, liabilities,
management or prospects of ALS.
10.9 ACTIONS, PROCEEDINGS, ETC. All actions, proceedings, instruments
and documents required to carry out the transactions contemplated by this
Agreement shall have been reasonably satisfactory to NeoMedia, such approval not
to be unreasonably withheld.
10.10 OPINION OF COUNSEL TO ALS. NeoMedia shall have received an
opinion of Xxxxxxxx, Xxxx & Xxxxx LLP, counsel to Sellers, addressed to
NeoMedia, dated the Closing Date, in form and substance satisfactory to NeoMedia
and its counsel.
10.11 LICENSES, PERMITS, CONSENTS, ETC. NeoMedia shall have received
evidence, in form and substance reasonably satisfactory to counsel for NeoMedia,
that such licenses, permits, consents, authorizations or orders of governmental
authorities as are necessary to the consummation of the transactions
contemplated by this Agreement and the continued operation of the business of
ALS have been obtained.
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10.12 DOCUMENTATION OF RIGHTS. ALS shall have delivered to NeoMedia
true and complete copies of all of the documentation held by ALS relating to
each of the Rights.
10.13 OFFICERS' FINANCIAL CERTIFICATE. NeoMedia shall have received a
certificate as set forth in Exhibit 10.13 from Sellers dated as of the Closing
Date, satisfactory in form and substance to NeoMedia and its counsel, certifying
that the ALS Financial Statements are true and correct, and accurately present
the financial position of ALS during that interim period.
10.14 UPDATE OF EXHIBITS. Sellers shall have furnished to NeoMedia as
Exhibit 10.14, immediately prior to the Closing Date, an amendment to the
Exhibits to this Agreement which shall update as of the Closing Date all
information specifically required to be contained in the Exhibits as of the date
hereof which have come into existence between the date hereof and the Closing
Date, and the information supplied in the amendment to the Exhibits shall not
show the incorrectness or untruthfulness or lack of completeness in any respect
of any representation or warranty made by Sellers as of the date hereof or as of
the Closing Date, or the breach of any agreement, covenant or condition required
by this Agreement to be performed or complied with by the Sellers prior to the
Closing Date.
10.15 COMPLETION OF DUE DILIGENCE AND APPROVAL OF EXHIBITS. NeoMedia
shall have received sufficient information and access to such information on a
timely basis regarding ALS from Sellers and shall have approved all Exhibits to
this Agreement.
10.16 EMPLOYMENT AND CONSULTING AGREEMENTS. An employment agreement and
a consulting agreement with Xxxxxx Xxxxx and Xxxxxx Xxxxxx, respectively, shall
have been entered into on terms acceptable to NeoMedia.
10.17 STOCK PRICE. The quoted bid price of NeoMedia shares on NASDAQ
shall not be, as of the Closing, less than $8.50 per share.
10.18 APPROVAL BY XXXXXX XXXXXXX & ASSOCIATES, INC. Approval for
issuance of the shares being sold by NeoMedia hereunder shall have been received
from Xxxxxx Xxxxxxx & Associates, Inc.
11. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE SELLERS.
The obligations of Sellers under this Agreement are subject to the
satisfaction at the Closing of each of the following conditions, any or all of
which conditions may be waived by Sellers in their sole discretion:
21
11.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made by NeoMedia in this Agreement shall be true as of the
Closing Date with the same force and effect as though made on and as of the
Closing Date.
11.2 PERFORMANCE OF AGREEMENTS. NeoMedia shall have performed and
complied in all material respects with all covenants, obligations and agreements
to be performed or complied with by it on or before the Closing Date pursuant to
this Agreement.
11.3 EMPLOYMENT AND CONSULTING AGREEMENTS. An employment agreement and
a consulting agreement with Xxxxxx Xxxxx and Xxxxxx Xxxxxx, respectively, shall
have been entered into on terms acceptable to each such party.
11.4 STOCK PRICE. The quoted bid price of NeoMedia shares on NASDAQ
shall not be, as of the Closing, less than $8.50 per share.
11.5 COMMISSION ARRANGEMENTS. Subject to NeoMedia's review and as long
as such employees and representatives perform their duties, NeoMedia shall
retain all commission arrangements with all current sales employees and
representatives and consultants of ALS for one year, except for Xxxxx Xxxxxxxx,
whose arrangement shall remain in place for two years.
11.6 TAXES. Sellers shall have accrued, with NeoMedia's approval, a
reasonably estimated distribution for income tax liability of Sellers as
shareholders of ALS, with the actual distribution to be made following
preparation of the fiscal year income tax returns for ALS.
11.7 REGISTRATION. NeoMedia and Sellers shall enter into an agreement
that, after NeoMedia has reported one quarter of combined earnings following
this transaction, (a) Sellers may request NeoMedia to register the NeoMedia
Shares, and thereafter NeoMedia will file no later than February 28, 1998, a
request for registration of the NeoMedia Shares under the Securities Act of
1933, as amended, and (b) NeoMedia in any event shall offer Sellers the option
to include the NeoMedia Shares if any other request for registration which
NeoMedia thereafter may file, if NeoMedia has not filed the NeoMedia Share
registrations prior thereto, in accordance with SEC rules. NeoMedia will use its
best efforts to make such registration effective.
12. MISCELLANEOUS.
12.1 NATURE AND SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
INDEMNIFICATION. All statements contained in this Agreement or in any exhibit or
document delivered in connection with this Agreement shall be deemed
representations and warranties by such party hereunder. All representations,
warranties, covenants and indemnities made
22
in this Agreement or pursuant hereto shall survive the Closing hereunder until
one year from the date of Closing except (a) with respect to any claim, written
notice of which shall have been delivered to NeoMedia or Sellers, as the case
may be, prior to a date one year from the date of Closing, such claim shall
survive the termination of such period and shall survive for as long as such
claims is unsettled, and (b) with respect to any litigation which shall have
been commenced to resolve such claim on or prior to such date.
12.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the documents
referred to herein constitute the entire Agreement among the parties hereto with
respect to the subject matter hereof and supersedes all prior written or oral
warranties, representations, inducements, understandings, commitments,
agreements or contracts. No amendment to or modification of the terms or
conditions hereof shall be binding unless it is in writing and signed by the
party against whom the amendment or modification is charged. No party hereto
shall be bound by or charged with any written or oral arguments,
representations, warranties, statements, promises or understandings not
specifically set forth in this Agreement or in any Exhibit hereto or in
certificates and instruments to be delivered pursuant hereto on or before the
Closing.
12.3 NOTICES. All notices or other communications required or permitted
hereunder shall be in writing and shall be deemed given, delivered and received
(a) when delivered, if delivered personally, (b) four days after mailing, when
sent by registered or certified mail, return receipt requested and postage
prepaid, (c) the next business day after delivery to a private courier service,
when delivered to a private courier service providing documented overnight
service, and (d) on the date of delivery if delivered by telecopy, receipt
confirmed, provided that a confirmation copy is sent on the next business day by
registered or certified mail, return receipt requested and postage prepaid, in
each case addressed as follows:
If to NeoMedia:
NeoMedia Technologies, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
000-000-0000 - Fax
23
with a copy to:
Xxxxxx X. Xxxxxxxx, Esq.
Fishman, Merrick, Miller, Genelly,
Springer, Xxxxxx & Xxxxxxxx, P.C.
00 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
000-000-0000 - Fax
If to Sellers:
Xxxxxx Xxxxx
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
or to such other address as the recipient party may indicate by a notice
delivered to the sending party (such change of address notice to be deemed
given, delivered and received only upon actual receipt thereof by the recipient
of such notice).
12.4 SEVERABILITY. Whenever possible, each paragraph of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law. If any paragraph of this Agreement shall be unenforceable or
invalid under applicable law, such paragraph shall be ineffective only to the
extent and duration of such unenforceability or invalidity and the remaining
substance of such paragraph and the remaining paragraphs of this Agreement shall
in such event continue to be binding and in full force and effect.
12.5 WAIVERS. No failure by any party to exercise any of such party's
rights hereunder or to insist upon strict compliance with respect to any
obligation hereunder, and no custom or practice of the parties at variance with
the terms hereof, shall constitute a waiver by any party to demand exact
compliance with the terms hereof. Waiver by any party of any particular default
by any other party shall not affect or impair such party's rights in respect of
any subsequent default of the same or of a different nature, nor shall any delay
or omission of any party to exercise any rights arising from any default by any
other party affect or impair such party's rights as to such default or any
subsequent default. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representation,
warranty, covenant or agreement contained herein or in any other documents.
24
Any party hereto may, at or before the Closing, waive any conditions to its
obligations hereunder which are not fulfilled.
12.6 HEADINGS; CERTAIN TERMS. The section and other headings contained
in this Agreement are for reference purposes only and shall not be deemed to be
a part of this Agreement or to affect the meaning or interpretation of this
Agreement. As used in this Agreement, the term "including" means "including, but
not limited to" unless otherwise specified; the word "or" means "and/or," and
the word "person" means and refers to any individual, corporation, trust,
partnership, joint venture, government or governmental authority, or any other
entity.
12.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
12.8 EXPENSES. Except as and to the extent otherwise provided in this
Agreement, whether or not the transactions contemplated by this Agreement are
consummated, ALS and Seller shall pay their own respective expenses and the fees
and expenses of their respective counsel and other experts.
12.9 TERMINATION OF AGREEMENT. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time, but not later
than the Closing Date:
(a) by mutual consent of the parties;
(b) by either party, if a condition precedent to such party's
obligations, as recited in Section 10 or 11, has not been satisfied or
waived; or
(c) by ALS or Seller if, through no material fault of such party
so electing to terminate, the Closing shall not have occurred on or
prior to September 30, 1997.
In the event of the termination of this Agreement by any party as above
provided, without material fault of any party, no party shall have any liability
hereunder, including any liability for damages. In the event that a condition
precedent to a party's obligation is not met, nothing contained herein shall be
deemed to require any party to terminate this Agreement rather than to waive
such condition precedent and proceed with the Closing.
12.10 TRANSACTION TAXES. While the parties intend that the sale of ALS
shares shall be tax free, Sellers shall pay any and all taxes, if any, imposed
upon the sale of the ALS Shares and transfer of ownership of ALS pursuant to
this Agreement.
25
12.11 BINDING EFFECT; BENEFITS. This Agreement shall inure to the
benefit of the parties hereto and shall be binding upon the parties hereto and
their respective successors and permitted assigns. This Agreement may not be
assigned by Seller or NeoMedia without the prior express written consent of the
other party. Except as otherwise set forth herein, nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto or their respective successors and permitted assigns any rights,
remedies, obligations, or liabilities under or by reason of this Agreement.
12.12 DISCLOSURES. Any disclosure by either party hereto pursuant to
any specific provision of this Agreement shall be deemed a disclosure for all
other purposes of this Agreement.
12.13 SECTION REFERENCES. All references contained in this Agreement to
any section number are references to sections of this Agreement unless otherwise
specifically stated.
12.14 BROKERS AND FINDERS. Neither NeoMedia nor Sellers has employed
any broker, agent or finder or incurred any liability for any brokerage fees,
agents' commissions, finders' fees or advisory fees in connection with the
transactions contemplated by this Agreement; and Sellers on the one hand, and
NeoMedia on the other hand, shall indemnify and hold each other harmless in
respect of any such obligation or liability based in any way on agreements or
arrangements or understandings claimed to have been made by any thereof with any
third party.
12.15 PUBLIC ANNOUNCEMENTS. No press release or other public statement
with respect to this Agreement or the transactions contemplated hereby shall be
issued by any party without that party having consulted with and obtained the
written consent of the other parties hereto; provided, however, notwithstanding
the foregoing, NeoMedia, as a company subject to the U.S. securities laws and
regulations relating to publicly-held companies, may make such public statements
at such time and in such form as may be required under such laws or regulations
as advised by its counsel.
12.16 NO STRICT CONSTRUCTION. The language used in this Agreement will
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction will be applied against any person.
12.19 NUMBER AND GENDER. Each defined term used in this Agreement has a
comparable meaning when used in its plural or singular form. Each
gender-specific term used herein will have a comparable meaning whether used in
a masculine, feminine or gender-neutral form.
26
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
NEOMEDIA TECHNOLOGIES, INC.
By: /s/ XXXXXXX X. XXXXX
-----------------------------
Xxxxxxx X. Xxxxx, President
Attest:
/s/ XXXXXXX X. XXXXX
------------------------
Xxxxxxx X. Xxxxx
Secretary
/s/ XXXXXX XXXXX
-------------------------------
XXXXXX XXXXX
/s/ XXXXXX X. XXXXXX
-------------------------------
XXXXXX X. XXXXXX
27
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 1.1.3
SCHEDULE OF EQUIPMENT
HISTORICAL
DESCRIPTION COST
----------- ----------
FURNITURE AND FIXTURES - ACCOUNT #1510
1 Filing cabinet $ 127
2 Computer table and file cabinet 138
3 Xxxxxxx office furniture 672
4 Partitions 173
5 Receptionist counter 3,275
6 Lobby furniture 3,215
7 Security system 896
------
Total $8,496
======
COMPUTER SOFTWARE - ACCOUNT #1520
1 Acucobol 85 operating system $3,450
2 Object COBOL Dev Suite UNIX v4.1 3,021
3 Project v4.1 Windows 95 CD-ROM 417
4 Windows NT server v 4.0 (20 users) 423
5 SCO-UA105-UX74, 5.0.2 70
6 Micrografx Flowcharter 7 139
7 WinFax Pro for Windows 95 and Act III 264
8 Windows NT server v4.0 (5 users) 703
------
Total $8,487
======
COMPUTER EQUIPMENT - ACCOUNT #1530
1 Laptop $3,887
2 Pentium Hard Drive 1,132
3 Personal Computer 2,119
4 Personal Computer 1,495
5 Stepnote computer and modem 2,273
6 HP DeskJet 680C 287
7 30% deposit on new phone system 2,625
8 PC and modem 3,216
9 Personal Computer and monitor 954
10 X0-000 Xxxxxxx Pro PC and monitor 4,144 (a)
11 Pro/10 & PCI combo adapter, SCSI-2 891 (a)
12 Jet Direct EX Plus Laserjet 6P Printer 1,128
13 Ditto Backup Parallel 2GB Drive 359
14 20 Pack PRO/10 & ISA TPO Adpt 416
15 Superstack II Hub 24 Port Link Cable 544
16 HP Surestore DAT 24 1,509
17 Pentium Pro 200 8,158
18 Pentium 133 1,008
19 Telephone headset 482
20 Network printer card 329
21 DKT2010SD Telephone 353
22 Surestore 81 8BG Int. Driver 935
23 (3) AGI P166 Computers 2,730
------
Total $40,974
=======
(a) one third owned by ALS.
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.2
SCHEDULE OF CAPITAL STOCK
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.5
SCHEDULE OF SUBSIDIARIES, DIVISIONS OR AFFILIATES
SUBSIDIARIES
NONE
DIVISIONS
NONE
AFFILIATES
ALLEGIANT DATA SYSTEMS, INC.
ALLEGIANT MANAGEMENT ASSISTANCE, INC.
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.7
SCHEDULE OF EQUITY INVESTMENTS
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.12
SCHEDULE OF FINANCIAL STATEMENTS
The financial statements are prepared on a modified accrual basis. Adjustments
to the financial statements would include, but not be limited to the following
items. Certain transactions for Allegiant Legacy Solutions, Inc. ("ALS") have
been recorded in the general ledger of Allegiant Data Systems, Inc. ("ADS").
Revenue has been recognized as billed, rather than on an accrual basis. An
allowance for bad debts has not been established for uncollectible trade
accounts receivable. Commissions are recorded when paid and not when the sale is
recorded.
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.13
SCHEDULE OF ABSENCE OF CERTAIN CHANGES OR EVENTS
5.13.3 ALS's exclusive Australian distributor has indicated their desire to
terminate the agreement. Their total contribution to sales over the
period of the agreement (15 months) was $34,000.
5.13.11 Expenses incurred by employees and officers were submitted and
reimbursed during August, 1997.
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.15
SCHEDULE OF INSURANCE
(a) NONE
(b)(i) NONE
(b)(ii) NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.17
SCHEDULE OF EMPLOYEES
OTHER
NAME SALARY COMPENSATION
-------------------- -------- ------------
FULL-TIME EMPLOYEES
Xxxxxx X. Xxxxx $132,000 $ 50,000
(Other compensation represents bonus paid in July, 1997)
Xxxxx X. Xxxxxxx 61,000 Commissions
Xxxxxx X. Xxxxxxx 61,000 Commissions
Xxxxx Xxxxxx 40,000 Commissions
Xxxx X. Xxxxxxxxxx 38,000 Commissions
Xxxx Xxxx 36,000 Commissions
Xxxxx Xxxxxxx 30,000 Commissions
Xxxx Xxxxx 25,000 Commissions
PART-TIME EMPLOYEES
Xxxxxxxx Xxxxx $20/Hour None
Xxxxxx X. Xxxxxxx $27/Hour Commissions
BILLED FROM ALLEGIANT DATA SYSTEMS, INC.
Xxxxxx X. Xxxxxx $4,844 / month 50,000
(Other compensation represents bonus paid in July, 1997)
(After the merger, Xx. Xxxxxx to be on salary with ALS)
Xxxxx Xxxx Xxxxxx 45,000 Commissions
(Currently, ADS is charging 50% of his salary to ALS. After
the merger all of his salary will be paid by ALS.)
Xxxxx Xxxxxx (Bookkeeper) $833 / month None
(Represents 40% of her salary)
Xxxxxxx Xxxxxxx (Receptionist) $417 / month None
(Represents 40% of her salary)
Xxxxx Xxxxx (Order Fullfillment) None None
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.20
SCHEDULE OF ACCOUNTS RECEIVABLE AND CUSTOMER LIST
ACCOUNTS
RECEIVABLE
CUSTOMER AS OF 07/31/97
--------- --------------
Allegiant Data Systems, Inc. $ 7,024.25
Allegiant Management 1,600.00
Blue Beacon International, Inc. 0.00
BP Oil Company 0.00
Cardinal Scale Mfg. Co. 0.00
Cipher Systems Ltd. 1,000.00
City of Fairfield 0.00
Cobol, Inc. 0.00
Commonwealth Aluminum 1,000.00
Compsoft International, Inc. 0.00
Countrywide Fund Services, Inc. 27,601.65
CSC Pty. Ltd. 20,000.00
Data General Corporation 3,912.50
Xxxxx Xxxxx & Associates 0.00
Easirun Europa, Gmbh 9,995.37
Easirun International 286.00
Easirun USA 19,921.57
EDS 40,000.00
EDS - Miser 0.00
Exacta Corporation 18,866.67
Invacare Corporation 10,631.25
Invesco Funds Group, Inc. 34,586.43
Xxxxx, Inc. 6,000.00
Xxxxx Shoe Company 56,942.99
NeoMedia Technologies, Inc. 5,266.10
PAX / I 0.00
Revo Software 0.00
Sterling Software, Inc. (93.91)
Tracor Information Systems Company 0.00
Transoft Ltd. 3,789.72
Transoft, Inc. 0.00
Vauform Industries, Inc. 0.00
-----------
Total $268,330.59
===========
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.22
SCHEDULE OF ABSENCE OF LITIGATION
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.23
SCHEDULE OF NO INTEREST IN COMPETITORS
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.24
SCHEDULE OF TAXES
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.25
SCHEDULE OF CONTRACTS AND AGREEMENTS
1 Software Distribution Agreement between Sinc, Inc. and Allegiant Data
Systems, Inc. dated December 31, 1995, and amended with correspondence
between Sinc, Inc. and Allegiant Legacy Solutions, Inc. dated February 28,
1996, November 19, 1996 and August 28, 1997
2 Agreement between Allegiant Legacy Solutions, Inc. and CSC Pty Limited
dated August 23, 1996
3 Agreement between Allegiant Legacy Solutions, Inc. and Easirun Europa, Gmbh
dated November 7, 1996
4 Agreement between Allegiant Legacy Solutions, Inc. and NeoMedia
Technologies, Inc. dated March 21, 1997
5 Agreement between Allegiant Legacy Solutions, Inc. and Exacta Corporation
dated May 6, 1997
6 Agreement between Allegiant Legacy Solutions, Inc. and Tracor Information
Systems Company dated February 19, 1997
7 Agreement between Allegiant Legacy Solutions, Inc. and Transoft, Inc. dated
January 16, 1997
8 Master Products and Services Agreement between Allegiant Legacy Solutions,
Inc. and Data General Corporation dated November 14, 1996
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.26
SCHEDULE OF NO DEFAULTS
Allegiant Legacy Solutions, Inc. is currently engaged in Year 2000 projects for
customers, some of which are scheduled to be delivered later than originally
planned, and as is common in this type of project-based work.
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.27
SCHEDULE OF NO CONSENTS REQUIRED
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.28
SCHEDULE OF PATENTS, TRADEMARKS, COPYRIGHTS, ETC.
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.29
SCHEDULE OF PERMITS, LICENSES, ETC.
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.30
SCHEDULE OF MARKETABLE TITLE AND NO LIENS
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.31
SCHEDULE OF POWERS OF ATTORNEY
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.32
SCHEDULE OF SUFFICIENCY OF ASSETS AND COMMITMENTS
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.33
SCHEDULE OF LABOR DISPUTES, UNFAIR LABOR PRACTICES
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 5.34
SCHEDULE OF PAST DUE OBLIGATIONS
NONE
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 10.13
OFFICERS' FINANCIAL CERTIFICATE
This internally prepared financial statement of Allegiant Legacy Solutions, Inc.
consisting of a balance sheet dated July 31, 1997 and an income statement from
December 1, 1996 to July 31, 1997, prepared on the modified accrual basis of
accounting, are, to the best of our knowledge, true and correct and accurately
present the financial position of Allegiant Legacy Solutions, Inc.
9/1/97 /s/ XXXXXX X. XXXXX
--------- -------------------------
Date Xxxxxx X. Xxxxx
9/1/97 /s/ XXXXXX X. XXXXXX
--------- -------------------------
Date Xxxxxx X. Xxxxxx
ALLEGIANT LEGACY SOLUTIONS, INC.
EXHIBIT 10.14
SCHEDULE OF UPDATE OF EXHIBITS
NONE
