Exhibit 10.3
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is being made this 30th day of September,
1996, by and between SYSTEMS AUTOMATION, INC. ("Seller"), XXXXXX XXXXXXX
("Shareholder") and THE JUDGE GROUP, INC., ("Buyer").
BACKGROUND
A. Seller is a corporation organized and existing under the
laws of the Commonwealth of Massachusetts with its principal place of business
at 00 Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx.
B. Buyer is a corporation organized and existing under the
laws of the Commonwealth of Pennsylvania with its principal place of business at
Two Bala Plaza, Bala Cynwyd, Pennsylvania.
C. Seller is engaged in the business of document imaging and
in conjunction therewith owns certain assets utilized in the operation of its
business.
D. Seller desires to sell, transfer and assign, and Buyer
desires to purchase certain of these assets of Seller in accordance with the
terms and conditions set forth herein.
E. It is currently anticipated that Buyer will complete
closing on an initial public offering prior to December 31, 1996.
NOW, THEREFORE, for and in consideration of the respective
representations, warranties, covenants and agreements set forth herein, and
intending to be legally bound hereby, the parties agree as follows:
1. PURCHASE AND SALE OF ASSETS.
1.1 Seller hereby agrees to sell, convey, transfer and assign
to Buyer, and Buyer hereby agrees to purchase certain tangible personal property
including cash accounts, accounts receivable, inventory, office equipment,
furniture and other assets including customers' purchase orders unfilled prior
to the Closing and certain customer contracts, all of which are utilized by
Seller in the conduct and operation of its business (hereinafter "Tangible
Assets"), a complete listing which is attached hereto as Schedule 1.1 and made a
part hereof.
1.2 Seller hereby agrees to sell, convey, transfer and assign
to Buyer, and Buyer hereby agrees to purchase upon the terms and conditions of
this Agreement, Seller's intangible assets including its name, customer list,
trademarks, and other proprietary property (hereinafter Intangible Assets"), a
complete listing which is attached hereto as Schedule 1.2 and made a part
hereof. Intangible Assets and Tangible Assets are hereinafter collectively
referred to as "Assets".
1.3 Except as otherwise specifically and expressly provided in
Schedule 1.3, Buyer shall not assume nor be responsible for any of Seller's
obligations arising from Seller's operation of the business or ownership of the
Assets including, but not limited to, accounts payable, debts, dues, accounts,
contracts, taxes, claims, or demands of any nature whatsoever.
1.4 The parties agree that the values for the Assets being
conveyed are the result of arms-length bargaining, are fair and reasonable and
shall be binding upon the parties for all purposes including, without
limitation, federal income tax purposes.
2. PURCHASE PRICE.
2.1 In consideration of the sale, conveyance, transfer and
assignment to Buyer of the Assets set forth in Section 1, Buyer shall pay to
Seller the sum of $547,252.00 as set forth below.
2.2 At the time of the Closing (as hereinafter defined), Buyer
shall pay Seller $75,000.00.
2.3 At Closing, Buyer shall deliver to Seller an executed
Promissory Note in the form attached hereto as Exhibit "A". The Promissory Note
shall be in the principal amount of $472,252.00 and shall accrue interest at the
rate of 8% per annum. The Note shall provide for a principal payment in the
amount of $100,000.00 plus accrued interest on January 2, 1997. The balance of
the note shall be paid in 36 equal monthly installments of principal and
interest in the amount of $11,664.76 commencing February 1, 1997. Prepayment
shall be permitted.
2.4 Provided Buyer closes on an initial public offering (the
"IPO Closing") on or prior to December 31, 1996, in lieu of the payment
provisions set forth above, Buyer shall pay to Seller the full principal amount
of the Note, $472,252.00 plus any accrued interest by wire transfer no later
than fifteen (15) days after the IPO Closing. If the IPO Closing occurs
subsequent to December 31, 1996, but prior to the payoff of the Promissory Note,
the Promissory Note's principal balance and any accrued interest shall be paid
in full within thirty (30) days thereafter.
3. CLOSING.
3.1 The Closing on the transactions provided for in this
Agreement shall take place on or before September 26, 1996, at 10:00 a.m. or
such other date as the parties otherwise shall mutually agree in writing
("Closing") at the office of Buyer or at such other place agreed to by the
parties.
3.2 (a) At Closing, Seller shall deliver to Buyer: (a) a Xxxx
of Sale in the form attached hereto as Exhibit "B" for all the Assets listed in
Schedules 1.1 and 1.2;
(b) The Employment Agreement described below executed by
Xxxxxx Xxxxxxx;
(c) The Employment Agreement described below executed by
Xxxxxx Xxxxxxx; and
(d) All other documents required by this Agreement.
3.3 (a) At Closing, Buyer shall deliver to Seller the payment
described in Section 2.2; and
(b) All other documents required by this Agreement
including such name assignment documents as are required.
3.4 At the time of Closing, Buyer shall have the right to
immediate physical possession of the Assets.
4. REPRESENTATIONS AND WARRANTIES OF SELLER AND SHAREHOLDER.
Seller and Shareholder make the following representations and warranties to
Buyer:
4.1 Organization, Good Standing and Valid Authorization.
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the Commonwealth of Massachusetts, has the corporate power and
authority to own all of its properties and assets and to carry on its business,
and is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the nature of its business or the
ownership of its properties or both, makes such qualification necessary. Seller
has the corporate power to enter into this Agreement and to carry out its
obligations hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Seller and its stockholders and no other
corporate proceedings on the part of Seller are necessary to authorize this
Agreement and the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by Seller and constitutes the valid and
binding obligation of Seller, enforceable against Seller in accordance with its
terms. Copies of the Articles and Certificate of Incorporation and By-Laws of
Seller certified to be correct by its Secretary are attached hereto as Exhibit
"C" and are complete and correct as at the date hereof. The minute book of
Seller, true copies of the contents of which, authenticated by its Secretary,
will be delivered to Buyer within ten (10) days after execution of the
Agreement, contains a complete and accurate record of all meetings and other
corporate actions of its shareholders and Board of Directors.
4.2 Compliance. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Seller will not:
(a) violate any provision of the Articles of Incorporation or By-Laws of Seller;
(b) except as provided in Section 7.2(j) herein, violate any material provision,
result in the breach or acceleration, or entitle any party to accelerate
(whether after the giving of notice or lapse of time or both) any material
obligation under any mortgage, lien, lease, agreement,
contract, license, instrument, order, award, judgment or decree to which Seller
are a party or by which any of them are bound; (c) result in the creation or
imposition of any material lien, charge, pledge, security interest or other
encumbrance upon any property of Seller; or (d) violate or conflict with any
other material restriction or any law, ordinance or regulation to which Seller
or the property of Seller is subject.
4.3 Approvals. No consent, approval, order or authorization
of, or registration, declaration or filing with, any governmental authority is
required in connection with the execution and delivery of this Agreement by
Seller or the consummation by Seller of the transactions contemplated hereby.
4.4 Capital Stock. At the Closing, the authorized capital
stock of Seller shall consist of _____ shares of common voting stock, no par
value, of which 1,532 shares shall be issued and outstanding.
4.5 Financial Statements of Seller. The reviewed balance
sheets for the fiscal year ending December 31, 1995 of Seller and the related
statements of operations, stockholders' equity and changes in financial position
(statement of cash flow) of Seller reviewed by Xxxxxxxx & Xxxxx, certified
public accountants and previously delivered to Buyer the reviewed balance sheet
as of June 30, 1996, and the related statements of operations, stockholders'
equity and changes in financial position for the six (6) months ended June 30,
1996, complete copies of which are attached hereto as Exhibit "D" (collectively
the "Seller Financials") have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis and fairly present
the financial position of Seller at such dates and the results of its operations
and changes in its financial positions for such periods. Except with respect to
matters referred to in Exhibit "D", Seller did not have as of July 1, 1996,
through the date of the execution of this
Agreement, any liabilities or obligations, secured or unsecured (whether
accrued, absolute, contingent, or otherwise), of a nature that would be
reflected or reserved against in a corporate balance sheet or disclosed in the
notes thereto, prepared in accordance with the generally accepted accounting
principles applied in the preparation of such financial statements, that are not
reflected or reserved against in the June 30, 1996 balance sheet or disclosed in
the notes thereto.
4.6 Absence of Certain Changes. Since December 31, 1995,
except as set forth on Schedule 4.6 hereto, there has been (a) no material
adverse change in the financial condition, business or results of operations of
Seller taken as a whole; (b) no declaration, setting aside or payment of any
dividend or other distribution with respect to Seller's Stock; (c) no material
loss, destruction or damage to the properties of Seller taken as a whole, which
loss, destruction, or damage is not adequately covered by insurance; (d) no
agreement, contract or commitment entered into or agreed to be entered into
except for those in the ordinary course of business (none of which individually
or in the aggregate, materially adversely affects the Assets of Seller taken as
a whole or its businesses, financial condition, prospects or results of
operations taken as a whole); (e) no amendment or termination of any contract,
lease, license, or other agreement to which Seller is a party except in the
ordinary course of business (none of which, individually or in the aggregate,
materially adversely affects the Assets, businesses, financial condition,
prospects or results of operations of Seller taken as a whole); and (f) no
change in any of the accounting methods or practices or revaluation of any of
the Assets of Seller, except as provided for herein or as required by changes in
generally accepted accounting principles; since such date, Seller has conducted
its business only in the ordinary course and is in compliance in all material
respects with all laws which govern the ownership of its property and the
conduct of its business.
4.7 Tax Matters. Seller has duly filed all federal, state,
county, local and foreign income, excise, sales, customs, property, withholding,
social security and other tax and information returns and reports required to
have been filed by it to the date hereof and paid (or, in the case of
withholding taxes and obligations, withheld and paid over as required) all
taxes, assessments, duties and other governmental charges (collectively, the
"Taxes") (including interest and penalties) shown on such returns or reports to
be due or claimed to be due prior to the date hereof to any federal, state,
county, local or foreign or other governmental authority. Seller has paid or
made adequate provisions in the most recent balance sheet included in the Seller
Financials (the "Seller Balance Sheet") for all Taxes (including interest and
penalties) payable by Seller with respect to all periods to and including June
30, 1996. Seller has no liability for any Taxes (including interest or
penalties) of any nature whatsoever other than as shown on the Seller Balance
Sheet and, to the best knowledge of Seller, there is no basis for any additional
material claims or assessments for the Taxes other than with respect to
liabilities for taxes that may have accrued since June 30, 1996, in the ordinary
course of business for which Seller shall remain responsible subsequent to
Closing. Seller has never been audited by the Internal Revenue Service or
Massachusetts Department of Revenue for any period. True copies of the federal,
state and local income tax returns of Seller for the year ended December 31,
1995, and for each of the two immediately preceding years have been, or will
promptly after execution hereof be delivered to Buyer. There are no agreements,
waivers or other arrangements (oral or written) providing for extensions of time
with respect to the assessment or collection of unpaid taxes nor are there any
actions, suits, proceedings, investigations or claims of any nature or kind
whatsoever now pending or overtly threatened against Seller with respect to any
such returns or reports, or any such income taxes or any matters under
discussion with any federal, state, county or local authority relating to taxes.
4.8. Material Contracts. Attached hereto as Schedule 4.8, and
certified by Seller, is a complete and correct description as of the date hereof
of all agreements, contracts and commitments, written or oral, to which Seller
is a party or by which it or any of its properties is bound as of the date
hereof including: (a) mortgages, indentures, notes, letters of credit, surety
agreements, security agreements and other agreements and instruments relating to
the borrowing of money or extension of credit to, or any guarantee by, Seller or
a subsidiary; (b) employment and consulting agreements; (c) stock option,
incentive, employee benefit, profit sharing, pension and retirement or other
compensation plans or agreements; (d) collective bargaining agreements; (e) the
names and annual compensation, as of the date hereof, of directors, officers,
and other employees, consultants or agents of the Seller; (f) sales, technical
rep, dealer, distributor, VAR, VAD agreements; (g) agreements, orders or
commitments for the purchase by Seller of materials, supplies or finished
products; (h) agreements, orders or commitments for the sale by Seller of
products or involving the furnishing of services to customers, agencies and the
like; (i) licenses of software and any patent, trademark, copyright and other
industrial property rights; (j) agreements or commitments for capital
expenditures; (k) brokerage or finders' agreements; (l) agreements, contracts,
leases, payables and commitments of a type other than those described in the
foregoing clauses which, in any case, involve aggregate payments or receipts of
more than $2,000 and/or which extend for a period of ninety (90) days from the
date hereof. Seller has, or will promptly hereafter deliver to Buyer complete
and correct copies of all written agreements, contracts and commitments,
together with all amendments thereto, and accurate descriptions of all oral
agreements set forth in Schedule 4.8. All such agreements, contracts and
commitments are in full force and effect. All parties to such agreements,
contracts and commitments have performed all material obligations required to be
performed by them to date. None of such agreements, contracts or commitments are
in default, and there has been no material
violation of any representation or warranty, explicit or implied, contained
therein. No claim of default by any party has been made or is now pending under
any such agreement, contract or commitment, and no event has occurred or
continues to occur that with notice or the passing of time or both would
constitute a default thereunder or would excuse performance by any party
thereto. No such agreement, contract or commitment materially affects or in the
future may (so far as Seller can now reasonably foresee) materially adversely
affect the business, financial condition, properties, assets, liabilities or
operations of Seller taken as a whole.
4.9 Properties. Seller has listed and described in Schedule
4.9 all properties and assets of Seller not fully described in the Seller
Financials or Schedules 1.1 or 1.2, including accounts receivable, inventory,
tangible fixed assets, leasehold improvements, machinery, equipment, furniture,
fixtures, bank accounts and vehicles. Seller owns and has good and marketable
title in fee to all of its assets and properties, tangible or intangible,
reflected on the Seller Financials, or listed in Schedule 4.9 in each case free
and clear of any mortgage, lien, pledge, charge, claim, conditional sales or
other agreement, right, easement or encumbrance except: (i) to the extent stated
or reserved against in the Seller Balance Sheet; (ii) for liens for taxes not
yet delinquent; and (iii) such other matters as have been described in another
exhibit attached hereto. Also described in Schedule 4.9 are all leases for real
or personal property and material currently in force involving Seller. A true
copy of all such leases have been, or will promptly after execution hereof be,
delivered to Buyer. All such leases are valid, subsisting and effective in
accordance with their terms and in good standing, and there does not exist
thereunder any default or event or condition which, after notice or lapse of
time or both, would constitute a default thereunder. All physical properties
owned or used by Seller and all equipment necessary for the operation of its
business are being sold in "as is" good operating condition and in a reasonable
state of maintenance
and repair. Seller has received no notice of violation of any applicable zoning
regulation, ordinance or other law, order, regulation, or requirement relating
to its operations or its properties, and there is no such violation, and all
buildings and structures used by Seller substantially conform with applicable
ordinances, codes and regulations.
4.10 Litigation. Except as set forth in Schedule 4.10, there
are no actions, suits or proceedings or investigations pending or, to the
knowledge of Seller, threatened against or affecting the business, operations or
financial condition of Seller at law or in equity in any court or before or by
any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality. Seller is not in default with respect
to any judgment, order, writ, injunction or decree of any court or any federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality.
4.11 Permits. Seller has all permits, licenses, orders and
approvals of all federal, state or local governmental or regulatory bodies
required for it to conduct its businesses as presently conducted. All such
permits, licenses, orders and approvals are in full force and effect and, to the
knowledge of Seller, no suspension or cancellation of any of them is threatened.
None of such permits, licenses, orders or approvals will be adversely affected
by the consummation of the transactions contemplated by this Agreement. Seller
has complied in all material respects with the rules and regulations of all
governmental agencies having authority over it, including, without limitation,
agencies concerned with occupational safety, environmental protection and
employment practices, and Seller has received no notice of violation of any such
rules or regulations, whether corrected or not, within the last three (3) years.
4.12 Patents, Trademarks, Copyrights, etc. Seller owns or
possesses full legal rights to use all material patents, trade names,
trademarks, copyrights, inventions, processes, designs, formulae,
trade secrets and other property rights necessary for the conduct of its
business as it is now being conducted and is not aware of any conflict with or
infringement of the rights of others. Seller does not know of any infringement
by any third party upon any patent, trade name, trademark or copyright owned by
Seller and Seller has not taken or omitted to take any action which would have
the effect of waiving any of its rights under any such patent, trade name,
trademark or copyright. No director, officer or stockholder of Seller owns or
has any interest in any of the Seller products or in any software or hardware or
other proprietary information or trade secret used in Seller's business.
4.13 Insurance. Seller shall promptly, after execution hereof,
furnish to Buyer a complete and correct list as of the date hereof of all
insurance policies maintained by Seller with respect to Seller liability for
operations, casualty, damage or destruction of properties, buildings, machinery,
equipment, furniture, fixtures, injury to persons or the lives of its key
employees. All such policies are in full force and effect and all premiums due
thereon have been paid or fully accrued as finally audited or determined on the
Seller Financials. Seller has complied in all material respects with the
provisions of all such policies.
4.14 Accounting Controls. Neither Seller nor any director,
officer, agent, employee, consultant or other person associated with or acting
on behalf of Seller has: (a) used any corporate funds for any unlawful
contributions, gifts, entertainment or any other unlawful expenses relating to
political activity; or (b) made any direct or indirect unlawful payments to
government officials or others from corporate funds or established or maintained
any unlawful or unrecorded funds. Seller makes and keeps accurate books and
records reflecting its assets and maintains internal accounting controls which
provide reasonable assurance that transactions are executed in accordance with
management's authorization and
transactions are recorded as necessary to permit preparation of Seller
Financials and to maintain accountability for the earnings and consolidated
assets of Seller.
4.15 Transactions with Affiliates. Except as disclosed in
Seller Financials or in some other exhibit or schedule hereto, no officer or
director, or a shareholder owning 5% or more of Seller's Stock, nor any spouse,
decedent or ancestor of such a person nor any corporation, partnership,
proprietorship, firm, association or trust in which such person has a direct or
indirect interest, has any existing contractual relationship with Seller, or has
engaged in any material transaction with Seller, nor has engaged in competition,
direct or indirect, with Seller.
4.16 No Brokers. All negotiations relating to this Agreement
and the transactions contemplated hereby have been carried on without the
intervention of any person acting on behalf of Seller in such manner as to give
rise to any valid claim against Seller or Buyer for any broker's or finder's fee
or similar compensation.
4.17 Directors, Officers and Stockholders. Attached herewith
as Schedule 4.17 is a complete and correct listing as of the date hereof of the
directors and officers of Seller and the beneficial owners of the issued and
outstanding shares of Seller Stock and the number of shares of each class owned
by them.
4.18 Non-Disclosure of Confidential Information. All persons
and entities (including, without limitation, employees and customers of Seller)
who have or had access to Seller's trade secrets, confidential information,
software documentation, source codes, know-how and all other non-public
information used or useful in Seller's business have entered into agreements
with Seller, which contain provisions to the general effect that the recipients
of such information agree to hold such information in confidence and not
disclose the same, directly or indirectly, to any person not having
Seller-authorized access to such information, without the express authorization
of Seller and Seller is not aware of any violation of any of such agreements.
Seller has, or will promptly after execution hereof deliver to Buyer complete
and correct copies of all such agreements, together with all amendments thereto.
4.19 Foreign Assets. Seller has no material interest in any
assets, real or personal, tangible or intangible, located outside of the
continental limits of the United States, including, but not limited to, stock,
securities or investments in, claims against or receivables from, any entities
or persons so located.
4.20 Accounts Receivable. The accounts and notes receivable
reflected in the Seller Financials are collectable in the amounts there shown,
and the accounts and notes receivable acquired by Seller subsequent to the date
of such Seller Financials through the Closing are and shall be collectable in
the aggregate amounts shown upon Seller's books after application of the
reserves for returns and bad
debts set in Seller Financials and maintained upon the books in accordance with
generally accepted accounting principles consistently applied by Seller.
4.21 Inventories. The inventories set forth in the Seller
Financials and reflected since then upon the books of Seller are items of a
quality and quantity useable or saleable in the normal course of its business
and that market value is not less than the book value thereof; the value of any
obsolete materials and of materials below standard quality has been written down
to realizable market value or adequate reserves provided therefor; the value at
which such inventories are carried reflect an inventory evaluation policy of
stating inventory at the lower of first in, first out cost or market and of
valuing finished goods and work in process at standard cost developed for
individual items using current materials, labor, and overhead cost at normal
production levels; and an obsolescence formula based on historical sales and
backlog orders is applied to inventories of finished goods in order to determine
the maximum quantities to be valued through each inventory date.
4.22 Disclosure. This Agreement and the certificates,
statements and other information furnished to Buyer in writing by or on behalf
of Seller in connection with the transactions contemplated herein, taken as a
whole, do not contain any untrue statements of a material fact or omit to state
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Seller does not know
of any fact or condition which is peculiar to Seller and does not affect
similarly situated businesses and which materially adversely affects, or in the
future may (so far as Seller can now reasonably foresee) materially adversely
affect the financial condition, properties, assets, liabilities, business,
operations or prospects of Seller taken as a whole which has not been set forth
herein or in an exhibit or schedule hereto.
4.23 Hazardous Substances.
(a) Except as disclosed on Schedule 4.23 hereto, to the
knowledge of Seller there has been no Release (as defined below), actual or
threatened, of any Hazardous Substance (as defined below) by Seller (or its
predecessor in interest) at or from any Facility (as defined below) currently or
previously owned or operated by Seller (or its predecessor in interest). To the
knowledge of Seller, there has been no Release of any Hazardous Substance for
which Seller (or its predecessor in interest) is or may be liable. For purposes
of this Agreement, each of the terms "Release", "Hazardous Substance" and
"Facility" shall be defined as it is now, or shall in the future be, defined
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended 42 U.S.C. (section)9601 et seq. or any other applicable
federal, state or local law, statute, rule, regulation or ordinance.
(b) Seller has notified or reported to all federal, state
or local officials and agencies all Releases of Hazardous Substances subject to
any such notification or reporting requirements.
(c) Schedule 4.23 hereto sets forth a complete list of
all aboveground and underground storage tanks, vessels and related equipment and
containers located on any currently or previously (to the extent known) owned or
operated facility that are subject to federal, state or local laws, statutes,
rules, regulations or ordinances, and sets forth their present contents and, to
the knowledge of Seller, what the contents have been at any time in the past.
(d) There have been no discharges to surface waters or
groundwaters occurring prior to the date hereof other than permitted discharges.
(e) There have been no air emissions occurring prior to
the date hereof other than permitted discharges.
4.24 ERISA.
(a) Except as set forth on Schedule 4.24, Seller does not
maintain, administer or contribute to, nor at any time during the past six years
has maintained, administered or contributed to, any (1) employee pension benefit
plan (as defined in Section 3(2) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), whether or not excluded from coverage under
specific Title or Subtitles of ERISA) (the employee pension benefit plans
disclosed on Schedule 4.24 are hereinafter referred to as the "Pension Plans");
(2) employee welfare benefit plan (as defined in Section 3(1) of ERISA, whether
or not excluded from coverage under specific Titles or Subtitles of ERISA) (the
employee welfare benefit plans disclosed on Schedule 4.24 are hereinafter
referred to as the "Welfare Plans"); or (3) bonus, deferred compensation, stock
purchase, stock option, severance plan, insurance or similar arrangement (the
plans, insurance or similar arrangements so disclosed on Schedule 4.24 are
hereinafter referred to as the "Employee Benefit Plans").
(b) All Pension Plans, Welfare Plans and Employee Benefit
Plans and any related trust agreements or annuity contracts (or any related
trust instruments) comply with and are and have been operated in accordance with
ERISA, the Internal Revenue Code of 1986, as amended (the "Code"), other federal
statutes, state law and the regulations and rules promulgated pursuant thereto.
All necessary governmental approvals for the Pension Plans, the Welfare Plans
and the Employee Benefit Plans have been obtained, a favorable determination as
to the qualification under the Code of each of the Pension Plans and each
amendment thereto has been made by the Internal Revenue Service, and all of the
Pension Plans remain qualified under the Code.
(c) Neither any Pension Plan nor any Welfare Plan has
engaged in any transaction in violation of Section 406 of ERISA or any
"prohibited transaction" (as defined in section
4974(c)(1) of the Code) other than any such transaction which is exempt under
Section 408 of ERISA or Section 4974(d) of the Code.
(d) Seller has not incurred any liability to the Pension
Benefit Guaranty Seller ("PBGC") as a result of the voluntary or involuntary
termination of any Pension Plan subject to Title IV of ERISA; there is currently
no active filing by Seller with the PBGC (and no proceeding has been commenced
by the PBGC) to terminate any Pension Plan subject to Title IV of ERISA
maintained or funded, in whole or in part, by Company or any of the
Subsidiaries; and Seller has not made a complete or partial withdrawal from a
multi-employer plan, as such term is defined in Section 3(37) of ERISA,
resulting in "withdrawal liability", as such term is defined in Section 4201 of
ERISA (without regard to subsequent reduction or waiver of such liability under
either Section 4207 or 4208 of ERISA).
4.25 Employees.
(a) Schedule 4.25 contains a complete and accurate list
of each employee, officer or director of the Seller, including each employee on
leave of absence or lay-off status: name; job title; current compensation paid
or payable and any change in compensation since January 1, 1994; vacation
accrued; and service credited for purposes of vesting eligibility to participate
under any pension, retirement, profit-sharing, thrift type and savings, deferred
compensation, stock bonus, stock option, cash bonus, employee stock ownership
(including investment credit or payroll stock ownership), severance pay,
insurance, medical, welfare, or vacation plan, other employee pension benefit
plan or employee welfare benefit plan, or any other employee benefit plan or any
director plan of Seller.
(b) No employee, officer or director of Seller is a party
to, or is otherwise bound by, any agreement or arrangement, including any
confidentiality, non-competition, or proprietary rights agreement, between such
employee, officer or director and any other person or entity that in any
way adversely affects or will affect (i) the performance of his or her duties as
an employee, officer or director of the Seller, or (ii) the ability of Seller to
conduct its business.
(c) Schedule 4.25 also contains a complete and accurate
list of the following information for each retired employee, officer or director
of the Seller, or their dependents receiving benefits or scheduled to receive
benefits in the future: name; pension benefit; pension option election; retiree
medical insurance coverage; retiree life insurance coverage; and other benefits.
(d) No union or collective bargaining unit represents any
of Seller's employees.
5. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants the following to Seller, the truth and accuracy of which
shall constitute a condition precedent to the obligations of Seller hereunder:
5.1 Organization. Buyer is a corporation organized and in good
standing under the laws of the Commonwealth of Pennsylvania and has all
requisite authority purchase the Assets, to execute and deliver this Agreement,
and to perform the provisions hereof. The Buyer has taken all necessary
corporate action in connection with the authorization, execution and delivery of
this Agreement, documents executed in connection therewith and the transactions
provided for herein. Buyer's documents have been duly executed and delivered by
and are the legal and binding obligations of Buyer and are enforceable in
accordance with their respective terms. By resolutions duly, validly and
unanimously adopted, the board of directors of the Buyer shall have approved the
form, substance, execution and delivery of this Agreement, the documents
executed in connection therewith, and the transactions provided for herein. The
resolutions so adopted shall remain in full force and effect and shall not be
amended, altered, or rescinded in whole or in part. The execution and delivery
of this Agreement by Buyer does
not, and the consummation of the transactions contemplated hereby and the
performance by Buyer of this Agreement will not, result in the acceleration of
any obligation under any mortgage, lien, contract, judgment or decree,
instrument, order of arbitration award, to which Buyer is a party or by which it
is bound or which affects the Assets or Customer List.
5.2 Other Agreements. The execution and delivery of this
Agreement and the consummation of the transactions provided for herein will not
result in a breach of any terms or provisions of, or constitute a default or
permit acceleration of maturity under, any indenture, mortgage, deed of trust,
loan agreement or other agreement to which Buyer is a party or is bound.
6. COVENANTS OF SELLER AND SHAREHOLDER.
6.1 Affirmative Covenants of Seller and Shareholder. Seller
and Shareholder covenant that, throughout the period commencing on the date
hereof and ending at the Closing, except for specific proposed actions or
inaction as shall otherwise be consented to by Buyer in writing, Seller will and
Shareholder agrees to cause Seller to:
(a) Conduct of Business. Conduct its business in a manner
that will not adversely affect Seller's ability to obtain all necessary
regulatory approvals for the transactions contemplated hereby or Seller's
ability to perform its obligations under this Agreement and conduct its business
in the ordinary course;
(b) Preservation of Business. Use its best efforts to
maintain and preserve its businesses, its good will and its relationships with
its customers;
(c) Assets. Maintain and keep its assets in as good repair
and condition in all material respects as they presently exist, except for
depreciation due to ordinary wear and tear and damage due to casualty;
(d) Insurance. Maintain in full force and effect the
policies of insurance set forth in Section 4.13;
(e) Contracts, Etc. Perform all its material obligations
under material contracts, leases and documents relating to or affecting its
material assets, properties and businesses;
(f) Financial Statements. Furnish to Buyer:
i. Promptly upon receipt thereof, copies of all
financial reports submitted to Seller by independent auditors in connection with
each annual, interim or special audit or review of the books of Seller made by
such accountants;
ii. Promptly upon any executive officer of Seller
obtaining knowledge of any condition or event which would constitute a material
violation of the terms and conditions of this Agreement or which would
constitute a material default under any material indenture, mortgage, agreement
or other instrument securing or relating to any indebtedness of Seller for
borrowed money, a certificate of the President of Seller specifying the nature
of such material violation or default and what action Seller has taken or is
taking or proposes to take with respect thereto;
iii. Promptly upon becoming aware that any person has
given notice to Seller or taken any other action with respect to a claimed
violation or default of the type referred to in subsection (ii) of this
Subsection, a written notice describing the notice given or action taken by such
person, the nature of such violation or default and what action Seller has taken
or is taking or proposes to take with respect thereto; and
iv. With reasonable promptness, such additional
financial data as Buyer may reasonably request;
(g) Laws, Rules, Etc. Comply with and perform all material
obligations and duties imposed upon it by all federal and state laws and all
rules, regulations and orders imposed by federal or state governmental
authorities, except in respects not materially adverse to the financial
condition, business, prospects or results of operations of Seller taken as a
whole, or which would not materially impair the ability of Seller to consummate
the transactions contemplated hereby;
(h) Corporate Existence. Maintain its existence, in the
case of Seller, as a corporation validly existing in good standing under the
laws of the Commonwealth of Massachusetts.
(i) Notices. Notify Buyer of (i) any fact or circumstance
of which the executive officers of Seller have knowledge which would, absent
disclosure by Seller to Buyer and Buyer's subsequent consent to such fact or
circumstance, not permit Seller to satisfy the condition set forth in Section
6.1(a) of this Agreement, (ii) any material breach of any of its covenants
contained herein, and (iii) any material adverse change in its financial
condition, business, prospects or operating results;
(j) Best Efforts. Use their best efforts to assure, to the
extent reasonably within their control, as soon as it is reasonably practicable,
the satisfaction of the conditions to the effectiveness of the transactions
contemplated by this Agreement.
6.2 Negative Covenants of Seller and Shareholder. Seller and
Shareholder covenant that, throughout the period commencing on the date hereof
and ending on the date of Closing, except for proposed specific actions as shall
otherwise be consented to by Buyer, Seller will not:
(a) Liabilities. Create, incur, assume, guarantee or
otherwise become directly or indirectly obligated with respect to any
liabilities or obligations outside the ordinary course of business nor become
obligated under any agreement to lend or borrow funds or purchase or supply
goods or services other than agreements that are not material and which are in
the ordinary course of business;
(b) Corporate Status. Merge into, consolidate with,
affiliate with, or be purchased or acquired by, any other corporation, entity or
person (or agree to any such merger, consolidation, affiliation, purchase or
acquisition;
(c) Governing Documents. Amend its charter or by-laws,
except that Seller shall amend the foregoing to the extent necessary to effect
the transactions contemplated hereby;
(d) Stock. Purchase, redeem, retire or otherwise acquire,
or hypothecate, pledge or otherwise encumber, any shares of capital stock;
(e) Dividends and Distributions. Make, declare or pay any
dividend, or declare or make any distribution on any shares of its capital
stock;
(f) Liability. Except for indebtedness and contingent
liabilities incurred in the ordinary course of business of Seller, incur any
indebtedness or liability for borrowed money evidenced by notes, bonds,
debentures or other similar obligations;
(g) Assets. Solicit or encourage inquiries or proposals
with respect to, or, furnish any information relating to or participate in any
negotiations or discussions concerning, any acquisition or purchase or all or a
material portion of its assets whether owned by it directly or of a substantial
equity interest in, it or any business combination with it and Seller shall
notify Buyer immediately if any such inquiries or proposals are received by, any
such information is requested from, or any such negotiations or discussions are
sought to be initiated with, Seller shall instruct its officers, directors,
agents, advisors and affiliates to comply with the above;
(h) Cash, Accounts Payable and Accounts Receivable. Except
in the ordinary course of business, incur accounts payable, forgive or write off
accounts receivable or deplete or expend cash-on-hand;
(i) Seller Stock. Issue any additional shares of capital
stock or any options, warrants or other securities or instrument convertible
into shares of capital stock without the prior consent of Buyer;
(j) Dividends and Other Distributions. Declare or pay any
dividends or otherwise make distributions on any shares of its capital stock or
sell, transfer or otherwise dispose of, or enter into any agreement to sell,
transfer or otherwise dispose of, any of its assets other than in the ordinary
course of business; or
(k) Other Actions. Directly or indirectly agree to take
any of the foregoing actions specified in Section 6.2.
7. Conditions.
7.1 Conditions to the Obligations of Buyer and Seller. The
Closing shall be expressly conditioned upon the following:
(a) Approval of Regulatory Agencies. All required consents
and approvals of all regulatory agencies and other authorities having
jurisdiction over the transactions contemplated by this Agreement, including
without limitation the SEC if required, shall have been obtained, and all
applicable waiting periods shall have expired.
(b) Suits, Actions. No party hereto shall be subject to
any order, decree or injunction of a court or agency of competent jurisdiction
which enjoins or prohibits the consummation of the purchase.
(c) Statutes, Orders. No statute, rule, regulation, order,
injunction or decree shall have been enacted, entered, promulgated or enforced
by any governmental authority which prohibits, restricts or makes illegal the
consummation of the purchase.
7.2 Conditions to the Obligations of Buyer. Consummation by
Buyer of the transactions contemplated hereby is subject to the following
conditions precedent, any of which, however, may be waived, to the extent
permitted by applicable law or regulation, by the consent in writing of Buyer:
(a) Representations, Warranties and Covenants.
i. The representations and warranties of Seller
contained herein (A) shall have been true and correct in all material respects
on the date hereof, and (B) other than as disclosed by Seller to, and approved
by, Buyer in writing prior to or at the Closing, shall be true and correct in
all material respects as of the Closing.
ii. Seller shall have duly performed in all material
respects all covenants, not otherwise waived by Buyer in writing, required by
this Agreement to be performed by Seller prior to or at the Closing.
iii. Buyer shall have received a certificate of Seller
dated as of the Closing, signed by both the Chairman and the President of Seller
and certifying in such detail as Buyer may reasonably request the fulfillment of
the conditions set forth in Section 7.2(a)
(b) Material Adverse Changes.
i. Since the date of this Agreement there shall have
been no material adverse change in the overall financial condition, asset value,
earnings, businesses, prospects or results of operations of Seller.
ii. Buyer shall have received a certificate of Seller
dated as of the date of the Closing, signed by the Chairman and the President of
Seller and certifying in such detail as Buyer may reasonably request the
fulfillment of the conditions set forth in Section 7.2(b).
(c) Opinion of Counsel. All proceedings and legal details
incident to this Agreement shall be satisfactory to Wisler, Pearlstine, Xxxxxx,
Xxxxx, Xxxxxxx & Potash, LLP as counsel for Buyer, and Buyer shall have received
an opinion reasonably satisfactory to them from Peabody & Xxxxxx, as counsel for
Seller, dated as of the date of the Closing and addressed to Buyer, to the
effect that:
i. Seller is a Massachusetts corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and has the power and authority to execute,
deliver and perform all transactions contemplated by this Agreement.
ii. The authorized capital stock of Seller consists of
__________ shares of common stock, no par value, of which the number of shares
specified in the opinion are issued and outstanding on the Closing. Each of such
outstanding shares of Seller's stock has been validly issued and is fully paid
and non-assessable. None of such outstanding shares of Seller's stock have been
issued in violation of any preemptive rights. To such counsel's knowledge, no
unissued shares of Seller's stock or any other securities of Seller are subject
to any warrants, options, commitments, preemptive or other rights of any kind or
nature, and Seller is not obligated to issue any additional shares of capital
stock or any other securities of any kind or nature.
iii. The execution, delivery and performance as of the
date of such opinion of all transactions contemplated by this Agreement have
been duly authorized by the board of directors and shareholders of Seller and do
not and will not violate any of the provisions of, or constitute a default under
or give any person or party the right to accelerate payment or performance under
the certificate of incorporation or by-laws of Seller or to such counsel's
knowledge any other material agreement or instrument to which Seller is a party
or by which it or any of its properties or assets is
bound other than (i) violations, defaults or accelerations which in the
aggregate would not have a material adverse effect on the financial condition,
business, prospects or operating results of Seller taken as a whole or (ii)
violations, defaults or accelerations that in the aggregate would not materially
impair the ability of Seller to consummate the transactions contemplated hereby.
iv. This Agreement has been duly authorized, executed and
delivered by Seller and constitutes valid and binding obligations of Seller,
enforceable against Seller in accordance with its terms except as may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors' rights and except as may be limited by the exercise of judicial
discretion in applying general principles of equity (regardless of whether such
agreements or documents are considered in a proceeding in equity or at law).
v. To the actual knowledge of such counsel, the execution,
delivery and performance of the Agreement by Seller will not violate any
provision of law or regulation applicable to Seller other than (1) violations
which in the aggregate would not have a material adverse effect on the financial
condition, business, prospects or operating results of Seller taken as a whole,
or (2) violations which in the aggregate would not materially impair the ability
of Seller to consummate the transactions contemplated by the Agreement.
vi. All consents and approvals of (and filings with) all
federal or state regulatory agencies or other authorities having jurisdiction
over the transactions contemplated by this Agreement required by law for Seller
to have been obtained or accomplished have been obtained or accomplished; such
opinion to express those agencies or authorities whose approvals have been
obtained or accomplished and to be given on a knowledge basis as to all others.
(d) Suit, Action, Etc. No suit, action or other proceeding
shall be pending or directly threatened by any federal, state or other
governmental agency, commission or authority having jurisdiction or authority
over Seller or Buyer or by any other person, in which it is sought to restrain
or prohibit consummation of the transactions contemplated by this Agreement and
which in the reasonable judgment of the management of Buyer is meritorious and
materially adversely affects the prospects of such consummation.
(e) Accountants' Letters. Buyer shall have received a
reviewed report from Seller's independent certified public accountants dated
June 30, 1996 and as of Closing substantially to the effect that:
i. it is a firm of independent public accountants with
respect to Seller; and
ii. on the basis of generally accepted accounting
standards, nothing has come to its attention which causes it to believe that the
Seller Financials are not fairly presented in conformity with generally accepted
accounting principles applied on a basis consistent with that of the financial
statements and as of Closing, except as specified in such letter, there has been
any change in the Seller Financials.
(f) Seller Customer Base. As of the Closing, there shall
have been no material adverse change in the current customer base of Seller.
(g) Approval by Lenders. Seller shall have obtained, prior
to Closing, the approval of the transactions required by this Agreement by the
lenders of Seller or all obligations to such lenders shall be satisfied and
released at Closing.
(h) Retirement Plans. Seller shall have fully funded all
retirement plans for its officers and other employees prior to Closing and there
shall be no existing or potential violation of applicable laws or regulations
with regard to said retirement plans.
(i) Free and Clear. All Assets shall be conveyed to Buyer
at Closing free and clear of all liens, encumbrances, pledges, mortgages,
security interests, restrictions or charges of any nature whatsoever.
(j) Assignment of Leases, Contracts, Etc. Seller shall
have used its best efforts to obtain and deliver to Buyer prior to Closing, and
to the extent not so assigned, subsequent to Closing, assignments to Buyer of
all of the leases and contracts set forth in Schedule 1.1 and Schedule 4.8,
together with any required consents for such assignments, in such form as is
reasonably acceptable to counsel for Buyer.
(k) Delivery of Documents. All documents required to be
delivered to Buyer from Sellers or Seller have been delivered.
7.3 Conditions to the Obligations of Seller. Consummation by
Seller of the transactions contemplated hereby is subject to the following
conditions precedent, any of which, however, may be waived, to the extent
permitted by applicable law or regulation, by the consent in writing of Seller:
(a) Representations and Warranties.
i. The representations and warranties of Buyer
contained herein (A) shall have been true and correct in all material respects
on the date made, and (B) other than as disclosed by Buyer to, and approved by,
Seller in writing prior to or at the Closing, shall be true and correct in all
material respects as of the Closing, except as otherwise permitted by this
Agreement.
ii. Buyer shall have duly performed in all material
respects all covenants, not otherwise waived by Seller in writing, required by
this Agreement to be performed by Buyer prior to or at the Closing.
(b) Suit, Action, Etc. No suit, action or other proceeding
shall be pending or directly threatened by any federal, state or other
governmental agency, commission or authority having jurisdiction or authority
over Seller or Buyer or by any other person, in which it is sought to restrain
or prohibit consummation of the transactions contemplated by this Agreement and
which in the reasonable judgment of Sellers and of the management of Seller is
meritorious and materially adversely affects the prospects of such consummation.
8. EXPENSES.
8.1 Each party hereto will bear all expenses incurred by it in
connection with this Agreement and the transactions contemplated hereby.
9. CONFIDENTIALITY.
9.1 Confidentiality. Any non-public or confidential
information disclosed by either party to the other pursuant to this Agreement or
as a result of the discussions and negotiations leading to this Agreement, or
otherwise disclosed, or to which any other party has acquired or may acquire
access, and indicated (either expressly, in writing or orally, or by the context
of the disclosure or access) by the disclosing party to be non-public or
confidential, or which by the content thereof reasonably appears to be
non-public or confidential, shall be kept strictly confidential and shall not be
used in any manner by the recipient except in connection with the transactions
contemplated by this Agreement. To that end, the parties hereto will each, to
the maximum extent practicable, restrict knowledge of and access to non-public
or confidential information of the other party to its officers, directors,
employees and professional advisors
who are directly involved in the transactions contemplated hereby and reasonably
need to know such information. Further to that end, all non-public or
confidential documents (including all copies thereof) obtained hereunder by any
party shall be returned as soon as practicable after any termination of this
Agreement and all electronic data that constitutes non-public confidential
information which is not physically returned shall be destroyed. The obligation
of the parties to maintain the confidentiality of such information shall survive
the termination of this Agreement.
10. INDEMNIFICATION; REMEDIES.
10.1 Survival. All representations, warranties, covenants and
obligations in this Agreement and any certificate of document delivered pursuant
to this Agreement will survive the Closing. The waiver of any condition based on
the accuracy of any representation or warranty, or on the performance of or
compliance with any covenant or obligation, will not affect the right to
indemnification, recovery of damages, or other remedy based on such
representations, warranties, covenants and obligations.
10.2 Indemnification by Seller and Shareholders. Seller and
Shareholders agree to indemnify and hold harmless Buyer against any and all
losses, costs, expenses, claims, damages or liabilities (including the amount of
any settlement approved by such Seller and expenses of enforcing this
Agreement), which Buyer may suffer, incur or become subject to, and to reimburse
Buyer for any legal or other expenses incurred by it in connection with
investigating any claims and defending any actions, insofar as such losses,
costs, expenses, claims, damages, liabilities or actions arise out of or are
based upon (i) any false, misleading or untrue representation, or the breach of
any warranty made by either or both of the Seller or Shareholders, (ii) any
breach or default in performance by the Seller of any of its covenants or
agreements with Buyer contained herein, (iii) the assessment of any claim for
additional
premium for any insurance policy not fully accrued on the Seller Financials; or
(iv) any tax liability of Seller imposed upon Buyer or Seller based on a failure
of Seller to file all tax returns and pay all taxes due, or assessed after IRS
audit, based upon the operations of Seller prior to the Closing or thereafter
including any tax liability based upon this transaction (transferee liability).
10.3 Set Off. Buyer may set off any amount to which it
believes in good faith it may be entitled under this Section or any of the
Related Agreements against amounts otherwise payable under Section 2 of this
Agreement or under the Related Agreements. The exercise of such right of set off
by Buyer in good faith, whether or not ultimately determined to be justified,
will not constitute an Event of Default under the promissory note executed
pursuant to this Agreement or under the Related Agreements. Neither the exercise
of nor the failure to exercise such right of set off will constitute an election
of remedies or limit Buyer in any manner in the enforcement of any other
remedies that may be available. Seller may dispute Buyer's right to set off and
submit the right to set off to arbitration as follows. Seller shall give written
notice to Buyer that Buyer is revoking this paragraph. The notice shall state
the name, address and telephone number of Seller's arbitrator. Within fifteen
(15) days, Buyer shall send written notice to Seller naming Buyer's arbitrator.
The two arbitrators shall jointly select a third arbitrator and the panel of
three shall determine the issue. Each party may make a written and oral
presentation of its position to the arbitrator together with documentation and
witnesses. The arbitrator's decision shall be limited to a determination that
the set off by Buyer is being made in good faith and with reasonably sufficient
justification. It shall not be necessary for Buyer to establish the ultimate
liability of Seller or Shareholder with respect to any claim being made by the
Buyer nor the extent of damages attributable thereto.
10.4 Related Agreements. Concurrent with the Closing, Judge
Imaging Systems, Inc. is executing an Employment Agreement with Xxxxxx Xxxxxxx
and an Employment Agreement with Xxxxxx Xxxxxxx (this Agreement and the
Employment Agreements are collectively referred to as the "Related Agreements").
Any breach or default by either of the Haskells under any of the Related
Agreements shall be construed to be a breach of all of the Related Agreements
and any obligation under one agreement shall be considered to be an obligation
under every other Related Agreement.
10.5 Indemnification by Buyer. Buyer agrees to indemnify and
hold harmless Seller and Shareholders against any and all losses, costs,
expenses, claims, damages or liabilities which Seller or Shareholder may suffer,
incur or become subject to, and to reimburse Seller or Shareholder for any legal
or other expenses incurred by it in connection with defending any actions
brought by third parties which are based upon the unjustifiable failure of Buyer
to perform its obligations under any contract assigned by Seller to Buyer
pursuant to this Agreement.
10.6 Remedies. In the event any party shall default in its
obligations hereunder, any non-defaulting party may pursue any remedy available
at law or in equity to enforce its rights and shall be paid by the defaulting
party for all damages, costs and expenses, including legal and accounting
expenses, incurred or suffered by the non-defaulting party in connection
herewith or in the enforcement of its rights hereunder. Any negligent
misrepresentation or negligent omission of information which is not material to
this Agreement is not grounds for default or rescission of this Agreement.
11. Miscellaneous Provisions.
11.1 Entire Agreement. This Agreement, and all Exhibits and
Schedules attached hereto, as well as any other document if signed or initialed
by the parties hereto and specifically providing that it is an exception to the
limitations contained in this Section, embody the entire agreement between
the parties hereto with respect to the matters agreed to herein, and, except as
expressly provided herein, this Agreement shall not be affected by reference to
any other document except for any such document signed or initialed by the duly
authorized representatives of the parties hereto and specifically providing that
it is an exception to the limitations contained in this Section. All prior
negotiations, discussions agreements by and between the parties hereto with
respect of such matters agreed to herein which are not reflected or set forth in
this Agreement, or in the Exhibits or Schedules, or in such other document,
shall have no further force or effect. Each representation, warranty, covenant
or agreement contained in this Agreement made by any of the parties hereto shall
have independent force and effect and shall not be affected by any other
representation except by specific reference.
11.2 Publicity. The content and timing of all publicity and
announcements concerning this Agreement, and all transactions contemplated by
this Agreement, shall be subject to Buyer's approval.
11.3 Amendment and Waiver. Neither this Agreement nor any
term, covenant, condition or other provision hereof may be amended, modified,
supplemented, waived, discharged or terminated except by an instrument in
writing signed by responsible officers duly authorized by the respective boards
of directors of the parties hereto.
11.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania except
to the extent that federal law may be applicable.
11.5 Communications. All notices, requests, demands, consents
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if hand delivered, sent by recognized overnight delivery
service, or certified or registered mail, postage prepaid, return receipt
requested.
(a) If to Buyer, to:
Xxx Xxxx Xxxxx
Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Judge, Jr.
With a copy to:
Wisler, Pearlstine, Xxxxxx, Xxxxx, Xxxxxxx & Potash, LLP
000 Xxxxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. X'Xxxxxxxx
(b) If to Seller, to:
Systems Automation, Inc.
00 Xxxxxxxx Xxxxxx Xxxx, Xx. 000
Xxxxxxxxx, XX
Attention: Xxxxxx Xxxxxxx
With a copy to:
Peabody & Xxxxxx
00 Xxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
11.6 Successors and Assigns. The rights and obligations of the
parties hereto shall inure to the benefit of and shall be binding upon the
successors and assigns of each of them; provided, however, that neither this
Agreement nor any of the rights, interest or obligations hereunder shall be
assigned by any party hereto without the prior written consent of the other
party.
11.7 Headings, Etc. The headings of the Sections and
Subsections of this Agreement have been inserted for convenience only and shall
not be deemed to be a part of this Agreement.
11.8 Severability. In the event that any one or more
provisions of this Agreement shall for any reason be held invalid, illegal or
unenforceable in any respect, by any court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provisions
of this Agreement and the parties shall use their best efforts to substitute a
valid, legal and enforceable provision which, insofar as practicable, implements
the purposes and intents of this Agreement.
11.9 No Third Party Beneficiary. Except as expressly provided
for herein, nothing in this Agreement is intended to confer upon any person who
is not a party hereto any rights or remedies of any nature whatsoever under or
by reason of this Agreement.
11.10 Counterparts. To facilitate execution, this Agreement
may be executed in as many counterparts as may be required; and it shall not be
necessary that the signatures of, or on behalf of, each party, or that the
signatures of all persons required to bind any party, appear on each
counterpart; but it shall be sufficient that the signature of, or on behalf of,
each party, or that the signatures of the persons required to bind any party,
appear on one or more of the counterparts. All counterparts shall collectively
constitute a single agreement. It shall not be necessary in making proof of this
Agreement to produce or account for more than a number of counterparts
containing the respective signatures of, or on behalf of, all of the parties
hereto.
11.11 ISN
(a) Xxxxxx Xxxxxxx owns all issued and outstanding
shares of Integrated Systems Networks, Inc. ("ISN"), a corporation organized
under the laws of the Commonwealth of Massachusetts with its principal place of
business at Xxxxxxxx Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx.
(b) On or before December 1, 1996 Buyer shall select and
immediately implement one of the following options with regard to ISN:
(i) All issued and outstanding stock of ISN and its
tangible and intangible assets as they exist now shall be transferred to Buyer
by Xxxxxx Xxxxxxx for no additional consideration; or
(ii) ISN shall be dissolved.
(c) Pending the implementation of one of the above
options all net profits of ISN will be credited to Buyer and no assets tangible
or intangible shall be assigned or transferred.
(d) In the event that Buyer is in default under the
promissory note provided for in section 1.2 as of December 1, 1996, Xxxxxx
Xxxxxxx shall have no obligation to implement Buyer's exercise of any option
set forth above until and unless such default has been cured.
[SIGNATURE PAGE FOLLOWS ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, as of the date set forth above.
SELLER:
SYSTEMS AUTOMATION, INC.
Attest: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------- -------------------------------
Xxxxxx X. Xxxxxxx, Secretary Xxxxxx Xxxxxxx, President
/s/ Xxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxxxxx
BUYER:
THE JUDGE GROUP, INC.
By: /s/ Xxxxxx X. Judge, Jr.
-------------------------------
Xxxxxx X. Judge, Jr., CEO
