STOCK AND DEBT PURCHASE AGREEMENT
STOCK AND DEBT PURCHASE AGREEMENT, dated as of August 9, 2002
(this "Agreement"), by and among MidMark Capital II, L.P. and
MidMark Capital, L.P (collectively,the "Buyer"), DynaSys, S.A.
(the "Company") and Vertex Interactive, Inc. (hereinafter
referred to as the "Stockholder");
WHEREAS, the Stockholder is the sole beneficial and record owner
of the Company (less certain shares owned by three directors of
the Company (the "Director's Shares")(Stockholder's interests
being referred to as the "Shares") and is owed certain amounts by
the Company in the form of intercompany loans (the "Debt";
collectively with the Shares, the "Purchased Interests");
WHEREAS, Buyer desires to purchase and the Stockholder desires to
sell, all of the Purchased Interests, upon the terms and subject
to the conditions set forth herein.
NOW, THEREFORE, in consideration of the respective covenants,
representations and warranties herein contained, and intending to
be legally bound whereby, the parties hereto agree as follows:
ARTICLE I.
SALE OF STOCK
1.1. The Sale.
Upon the terms and subject to the conditions of this Agreement
the Stockholder hereby sells, conveys, assigns, transfers and
delivers to Buyer and Buyer purchases, acquires and accepts from
the Stockholder all of the Purchased Interests. The Stockholder
will, at the direction of the Buyer, cause the Director's Shares
to be transferred to the Buyer or their designee.
1.2. Purchase Price.
The aggregate consideration to be paid for the Purchased
Interests and for the Stockholder causing a transfer of the
Director's Shares as directed by the Buyer, shall be an
amount in U.S. dollars equal to $6,000,000 credited against
principal and then interest outstanding under the following notes
in the following order: (1) the $319,680.83 Amended and Restated
Convertible Promissory Note dated as of March 7, 2002 payable to
MidMark Capital, L.P., (2) $4,399,039.67 Amended and Restated
Convertible Promissory Note dated as of March 7, 2002 payable to
MidMark Capital II, L.P., and (3) 3,000,000 Convertible
Promissory Note dated November 1, 2001 payable to MidMark Capital
II, L.P.
In addition, as further consideration MidMark Capital II, L.P.
shall advance under a demand loan $140,000 on the date of this
Agreement. MidMark Capital II, L.P. shall advance an additional
$285,000 under its demand loan upon the satisfaction of the
conditions listed below, the proper registration of the transfer
of the Purchased Interests and obtaining any approvals as may be
required from the SBA. In the event the Buyer determines that the
transfer of the Purchased Interests have not been properly
registered, the conditions have not been met or SBA approval
cannot be obtained by August 19, 2002 then the Buyer shall have
the right to rescind this transaction. If the Buyer should
determine that any of representations and warranties are untrue
in any material respects then the Buyer shall have the right to
rescind this transaction.
1.3. Seller's right to Repurchase.
Subject to the satisfaction the following conditions, on February
9, 2003 (the "Repurchase Date") the Stockholder shall have the
right to repurchase a portion of the Shares from the Buyer (pro
rata between MidMark Capital, L.P. and MidMark Capital II, L.P.
in accordance with their initial holdings). The Stockholder shall
only have such right on the Repurchase Date if (1) before that
date there has been a public offering of the Shares on a
generally recognized exchange of equity securities (the "Public
Offering"), and (2) on the Repurchase Date the aggregate market
capitalization of the Company (the "Company Market Cap"), which
capitalization is based on the average trading price during the
immediately proceeding thirty trading days (the "Trading Price"),
exceeds $9,000,000. If the foregoing conditions have been met,
the Stockholder shall have the right on the Repurchase Date to
purchase Shares from the Buyer a number of Shares equal to 20% of
the Shares held by the Buyer immediately after the Public
Offering by tendering to the Buyer cash or a note in the form
of Exhibit A (the "Repurchase Note") for an amount equal to the
purchase price paid by the Buyer for such shares hereunder. The
Repurchase Note shall be secured by the assets of the Stockholder
including the repurchased Shares, bear interest at 10% which
interest shall be payable monthly with the principal amount of
the Repurchase Note payable in one year.
1.4. Allocation of Ownership.
Ownership of the Purchased Interests shall be allocated between
MidMark Capital, L.P.and MidMark Capital II, L.P. pro rata in
accordance with the amount of consideration provided by each of
them.
1.5. Deliveries by Stockholder and the Company.
Unless Buyer agrees to the contrary by August 19, 2002, the
Stockholder and the Company will deliver the following to Buyer:
(a) Certificates representing the Shares, accompanied by stock
powers duly endorsed in blank or accompanied by duly executed
instruments of transfer, and any other documents that are
necessary to transfer to Buyer good title to all the Shares free
and clear of all Liens (as hereinafter defined) or any other
documents necessary to properly transfer ownership of the
Purchased Interests;
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(b) The resignations of all members of the Boards of Directors
(all such persons collectively, the "Resigning Directors") of the
Company;
(c) The stock books, stock ledgers, minute books, other corporate
records and corporate seals of the Company;
(d) Certified copies of the resolutions, duly adopted by the
Board of Directors or its equivalent of the Company, that will be
in full force and effect at the time of delivery, authorizing the
execution, delivery and performance of this Agreement;
(e) Certified copies of the resolutions, duly adopted by the
Board of Directors of the Stockholder, that will be in full force
and effect at the time of delivery, authorizing the execution,
delivery and performance of this Agreement and approving in
accordance with French Law the transfers of the Shares to the
Buyer;
(f) The opinion of Stockholder's Counsel, substantially in
satisfactory form;
(g) Any third party consents required in connection with the
transactions contemplated by this Agreement;
(h) A Non-Competition Agreement from the Stockholder providing
that the Stockholder will not for some reasonable period compete
with the Company in the Supply Chain Planning Market; and
(i) All other documents, instruments and writings required to be
delivered by the Stockholder and/or the Company pursuant to this
Agreement.
1.6. Deliveries by Buyer.
The Buyer will deliver the following:
(a) The Purchase Price;
(b) A Non-Competition Agreement from the Buyer and the Company
providing that the Buyer and the Company will not for some
reasonable period compete with the Stockholder in the Supply
Chain Execution Market;
(c) Certified copies of the resolutions, duly adopted by the
Board of Directors of Buyer, that will be in full force and
effect at the time of delivery, authorizing the execution,
delivery and performance of this Agreement; and
(d) All other documents, instruments and writings required to be
delivered by Buyer pursuant to this Agreement.
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ARTICLE II.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER AS TO ITSELF
Stockholder hereby represents and warrants to Buyer (which
representations and warranties shall be true and complete on and
as of the Closing Date) as follows:
2.1. Ownership of Shares; Title.
Stockholder is the owner of record and beneficially of the
Purchased Interests. All of the Purchased Interests are owned by
the Stockholder free and clear of any claim, levy, charge,
pledge, hypothecation, trust, security interest, proxy, voting
arrangement, conditional sale or title retention contract, or
other encumbrance or restriction of any kind, including
restrictions affecting voting rights, transferability or
incidents of record or beneficial ownership (any of which being
referred to as a "Lien") except liens in favor of the Buyer. The
consummation of the sale of the Shares will convey to Buyer good
and marketable title to the Shares free and clear of all Liens.
There are no voting trusts, shareholder agreements, proxies or
other agreements or understandings in effect with respect to the
voting or transfer of the Shares to which Stockholder is a party
or is bound thereto. Except for this Agreement, there are no
outstanding warrants, options, rights or agreements of any kind
to acquire from Stockholder any Shares owned by Stockholder. All
of such Shares are fully paid and non-assessable. The Debt is all
of and the only obligation owed by the Company to the Stockholder
or any of its Affiliates.
2.2. Authority.
Stockholder has full power, legal right and authority to execute
and deliver this Agreement, to sell the Purchased Interests in
accordance with the terms and subject to the conditions of this
Agreement, and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been
duly and validly authorized by all requisite action and no other
proceedings on the part of Stockholder are necessary to authorize
this Agreement or to consummate the transactions so contemplated.
This Agreement has been duly and validly executed and delivered
by Stockholder and, assuming this Agreement has been duly
authorized, executed and delivered by Buyer, constitutes a valid
and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms. The execution, delivery
and performance by Stockholder of this Agreement and the
transactions (and the consummation of the transactions)
contemplated hereby and thereby will not: (i) violate or conflict
with any provision of the organizational document, if any, of
Stockholder; (ii) result in the breach of, or constitute a
default (with or without notice or lapse of time, or both) under,
any provision of (a)any debt instrument, indenture, mortgage
agreement or other instrument or arrangement to which
Stockholder is a party or by which any of the Shares owned by
Stockholder is bound or (b) any judgment, order or decree by
which Stockholder is bound or by which any of the Shares owned
by Stockholder is bound or affected, or (iii) result in the
imposition of any Lien on any of the Shares owned by Stockholder
or (iv) impair Stockholder's ability to perform his obligations
under this Agreement.
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ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF
THE STOCKHOLDER AS TO THE COMPANY
The Stockholder represents and warrants to Buyer (which
representations and warranties shall be true and complete on and
as of the Closing Date) as follows:
3.1. Organization; Etc.
(a) The Company is duly organized, validly existing and in good
standing under the laws of the Republic of France, and has all
requisite power and authority to own, lease and operate its
properties and to carry on the business conducted by it as now
conducted.
(b) The Company is duly qualified or licensed and in good
standing to do business as a foreign corporation in each such
jurisdiction in which such qualification is required and there
are no other jurisdictions in which the Company's ownership of
property, or the manner in which the Company conducts its
business, requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect (as
hereinafter defined). "Material Adverse Effect" shall mean any
event having (or reasonably likely to have) a material adverse
effect on the business, condition (financial or otherwise),
results of operations or prospects of the Company taken as a
whole or materially impair the ability of the Stockholder or the
Company to consummate the transactions contemplated by this
Agreement.
3.2. Capitalization.
(a) All of the Shares are duly authorized and validly issued,
fully paid, non-assessable and free of preemptive rights.
(b) The Shares represent all of the issued and outstanding
capital stock and equity interests in the Company. Except for the
Shares, there are no (i) subscriptions, options, warrants,
calls, rights, convertible securities or other agreements or
commitments of any character,whether oral or written, relating to
the issuance, transfer or sale, delivery, transfer, voting or
redemption (including any right of conversion or exchange under
any outstanding security or other instrument) of any of the
capital stock or other equity interests of the Company, or (ii)
agreements, arrangements, or understandings granting any person
any rights in the Company similar to capital stock or other
equity interests. All of the Shares were issued by the Company
in compliance with all applicable securities laws. There are no
voting trusts, shareholder agreements, proxies or other
agreements or understandings in effect with respect to the voting
or transfer of the Shares to which the Company is a party or is
bound thereto.
3.3. Affiliate Transactions.
All arrangements, contracts, understandings, agreements or
transactions (whether written or oral) in existence between the
Company, on the one hand, and the Stockholder (or any family
member of Stockholder) or any affiliate or associate of the
Stockholder or any business or entity in which the Stockholder or
any affiliate or associate of the Stockholder, have any direct or
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indirect interest (other than the Company) (the "Stockholder's
Affiliates"), on the other hand(each, an "Affiliate Transaction",
and together the "Affiliate Transactions") are on terms that
would exist in an arms length transaction. There are no loans to
the Company from any Affiliate of the Company other than the
Debt.
3.4. Consents and Approvals; No Violations.
No filing with, and no permit, authorization, consent or approval
of, any public body or governmental authority, domestic or
foreign is necessary for the consummation by the Stockholder of
the transactions contemplated by this Agreement. Neither the
execution and delivery of this Agreement by the Stockholder nor
the consummation by the Stockholder of the transactions
contemplated hereby nor compliance by the Stockholder with any of
the provisions hereof will (i) conflict with or result in any
breach of any provision of the organizational documents of the
Company, (ii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or
acceleration) under, or require any consent under, any of the
terms, conditions or provisions of any indenture, license,
contract, agreement or other instrument or obligation to
which the Company is a party or by which any of them or any of
their properties or assets may be bound, except for violations,
breaches and defaults which in the aggregate would not have a
Material Adverse Effect, or (iii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the
Company.
3.5. Title to Assets.
The Company has good title to all of the assets needed to conduct
its business.
3.6. Tax Matters.
(a) All material returns, declarations, reports, estimates,
statements, schedules or other information or documents with
respect to Taxes (as defined below) (collectively, "Tax
Returns") required to be filed by the Company have been timely
filed (giving effect to extensions granted with respect thereto),
and all such Tax Returns are true, correct, and complete. The
Company has timely paid all Taxes due or claimed to be due from
them by any federal, state, local, foreign or other taxing
authority and no material deficiency for any Taxes has been
proposed, asserted or assessed against the Company that has not
been resolved and paid in full. There are no Liens for Taxes upon
any of the assets of the Company except liens for Taxes not
yet due and payable.
(b) The Company has established adequate reserves in accordance
with generally accepted accounting principles for all Taxes not
yet due and payable.
(c) No audit or other proceeding by any federal, state, local or
foreign court, governmental, regulatory, administrative or
similar authority is presently pending with respect to any Taxes
or Tax Return of the Company, and the Company has not received
written notice of any pending audits or proceedings.
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(d) For purposes of this Agreement, the term "Taxes" (including,
with correlative meaning, the term "Tax") shall mean (i) all
taxes, charges, fees, levies or other assessments, including,
without limitation, all net income, gross income, gross receipts,
sales, use, service,service use, ad valorem, transfer, franchise,
profits, license, lease, withholding, social security, payroll,
employment, excise, estimated, severance, stamp, recording,
occupation, real and personal property, gift, windfall profits or
other taxes, customs, duties, fees, assessments or charges of any
kind whatsoever, whether computed on a separate consolidated,
unitary, combined or other basis, together with any interest,
fines, penalties, additions to tax or other additional amounts
imposed thereon or with respect thereto imposed by any taxing
authority (domestic or foreign) and (ii) any liability of the
Company for the payment of any amount of the type described in
clause (i) as a result of being a member of an affiliated,
unitary, or combined group except for such liabilities as would
not in the aggregate have a Material Adverse Effect.
3.7. Financial Statements; Absence of Undisclosed Liabilities.
All information provided to the Buyer by the Stockholder
reflecting the financial condition of the Company is true,
correct and complete in all materials respects and there has
been no material adverse change since the date that information
was provided.
3.8. Material Contracts.
(a) The Company will provide and the Stockholder will cause the
Company to provide by August 14, 2002 copies of the following
material contracts, agreements, arrangements or understandings to
which the Company is a party (together, the "Material
Contracts"):
(i) each employment, severance, management, consulting and other
agreement involving compensation for services rendered or to be
rendered;
(ii) each credit agreement, loan agreement, indenture, note,
mortgage, security agreement, loan commitment, evidence of
indebtedness, or other contract relating to indebtedness for
borrowed money;
(iii) the leases relating to the Leased Properties (as defined in
Section 3.5) (the "Real Property Leases") and the Capital Leases;
(iv) each contract, agreement or other arrangement granting any
Person any preferential right to purchase any of the material
properties or assets of the Company;
(v) each collective bargaining or similar agreements (the
"Collective Bargaining Agreements") with any labor unions or
associations representing employees of the Company;
(vi) each employee benefit plan (as hereinafter defined);
(vii) each contract, agreement, arrangement or understanding with
Stockholder (or family member thereof), director or officer of
the Company;
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(viii) each contract, agreement, arrangement or understanding
involving an amount in excess of $10,000 for the future purchase
of, or payment for, supplies, products or services;
(ix) each contract, agreement, arrangement or understanding
involving an amount in excess of $10,000 to sell or supply
products or to perform services;
(x) each partnership or joint venture agreements;
(xi) each contract, agreement, arrangement or understanding
limiting or restraining the Company from engaging or competing in
any lines or business with any person, firm,corporation or other
entity;
(xii) each contract, agreement, arrangement or understanding
providing for rights of indemnification of exculpation by the
Company in favor of any officer, director, employee or
agent or financial advisor of the Company or any other person or
entity; and
(xiii) each other contract, agreement, arrangement or
understanding (whether written or oral) entered into (A) in the
ordinary course of business which involves the payment or
receipt of an amount in excess of $10,000 per annum or (B)
outside of the ordinary course of business.
(b) All of the Material Contracts are valid, binding and
enforceable obligations of the Company, as the case may be, and
neither the Company nor, to the knowledge of the Stockholder, the
other party thereto, is in breach of or default under any such
Material Contract except for immaterial breaches or defaults
which will not give rise to any right to terminate any of the
Material Contracts or result in any material liability to the
Company.
3.9. Litigation.
There are no legal actions, suits, administrative, arbitration or
other proceedings or governmental investigations (collectively,
the "Actions") pending or, threatened against the Company (or
against any officer or director of the Company, in their capacity
as an officer or director of any such entity) or the Real
Properties at law or in equity, before any federal, state,
municipal or other governmental court, department, commission,
board, arbitrator, bureau,agency or instrumentality (a
"Governmental Entity") which, if adversely decided, would in the
aggregate be reasonably likely to have a Material Adverse Effect.
The Stockholder has no knowledge of any fact or circumstance
which could reasonably be expected to result in any other
claim, action cause of action, suit, proceeding, inquiry,
investigation or order against the Company, or which could
adversely affect the business, operations, assets or prospects of
the Company.
3.10. Intellectual Property.
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The Company owns, or is licensed to use, all patents, trademarks,
trade names, service marks, processes, know-how, customer lists
and trade secrets (collectively, the "Intellectual Property")
used in, or necessary for, the conduct of its business as
currently conducted. No person has a right to receive a royalty
with respect to any of the Intellectual Property. No claim
has been asserted in writing or threatened by a third party with
respect to the use of such Intellectual Property by the Company.
The use of such Intellectual Property by the Company does not
infringe on the rights of any person or entity. Consummation of
the transactions Contemplated by this Agreement will not impair
or alter any of the Company's Intellectual Property rights. To
the Company's knowledge there are no infringements of the
intellectual Property by any third party.
3.11. Compliance with Laws.
The Company is not and has not within the past three years been
in violation of (i) any judgment, decree, injunction, order or
ruling of any federal, state or local court or governmental
or regulatory body or authority that is binding on any such
person or its property under applicable law or (ii) any statute,
law, ordinance, regulation, order or rule of any federal, state,
local or other governmental agency or body.
3.12. Brokers and Finders.
The Company has not employed any broker or finder nor incurred
any liability for any investment banking fees, brokerage fees,
commissions or finders' fees in connection with the transactions
contemplated by this Agreement.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Stockholder as follows:
4.1. Organization; Etc.
Buyer is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation.
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4.2. Authority Relative to this Agreement.
Buyer has all requisite authority and power to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated
hereby by Buyer have been duly and validly authorized by all
required action on the part of Buyer and no other proceedings
on the part of Buyer are necessary to authorize this Agreement or
to consummate the transactions contemplated hereby; provided,
that, the foregoing shall not apply with respect to the
incurrence of the financing for the funds required to consummate
the transactions contemplated hereby or the execution, delivery
and performance of agreements relating thereto. This Agreement
has been duly and validly executed and delivered by Buyer and,
assuming this Agreement has been duly authorized, executed and
delivered by Stockholder, constitutes a valid and binding
agreement of Buyer, enforceable against Buyer in accordance with
its terms.
4.3. Consents and Approvals; No Violations.
No filing with, and no permit, authorization, consent or approval
of any public body or governmental authority is necessary for the
consummation of the transactions contemplated by this Agreement.
Neither the execution and delivery of this Agreement by Buyer nor
the consummation by Buyer of the transactions contemplated hereby
nor compliance by Buyer with any of the provisions hereof will
(i) conflict with or result in any breach of any provision of the
organizational documents of Buyer, (ii) result in a violation or
breach of, or constitute (with or without due notice or lapse of
time or both) a material default (or give rise to any right of
termination, cancellation or acceleration) under, any of the
terms, conditions or provisions of any indenture, license,
contract, agreement or other instrument or obligation to which
Buyer is a party or by which any of them or any of their
properties or assets may be bound, except for such defaults,
violations or breaches which would not in the aggregate have a
material adverse effect on the Buyer or (iii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable
to Buyer, or any of its properties or assets, except for
violations of statutes, rules or regulations which in the
aggregate would not have a material adverse effect on the Buyer.
4.4. Brokers and Finders.
Buyer has not employed any investment banker, broker or finder or
incurred any liability for any investment banking fees, brokerage
fees, commissions or finders' fees in connection with the
transactions contemplated by this Agreement.
ARTICLE V.
MISCELLANEOUS PROVISIONS
5.1. Amendment and Modification.
This Agreement may be amended or modified at any time by the
parties hereto, pursuant to an instrument in writing signed by
the Buyer and the Stockholder.
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5.2. Entire Agreement; Assignment.
This Agreement (a) constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both
written and oral, between the parties hereto with respect to the
subject matter hereof and (b) may not be assigned, by operation
of law or otherwise by a party hereto, without the prior written
consent of the Buyer (in the case of any assignment by a
Stockholder).Notwithstanding the foregoing, the Buyer may assign
this Agreement to any legal entity which it controls, is
controlled by, or is under common control with, and/or to any
Person providing financing to Buyer to enable it to consummate
the transactions contemplated hereunder.
5.3. Validity.
The invalidity or unenforceability of any term or provision of
this Agreement in any situation or jurisdiction shall not affect
the validity or enforceability of the other terms or provisions
hereof or the validity or enforceability of the offending term or
provision in any other situation or in any other jurisdiction.
5.4. Notices.
Unless otherwise provided herein, all notices and other
communications hereunder shall be in writing and shall be deemed
given upon receipt by the other parties at the following
addresses or telecopy numbers:
(a) if to the Buyer, to
Xxxxxx X. Xxxxxxxx
Vice President
MidMark Investments, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone (000) 000-0000 (Morristown)
Fax (000) 000-0000 (Morristown fax)
E-Mail mailto:xxxxxxxxx@xxxxxxxxxxxxxx.xxx
with a copy to
Xxxxx X. Xxxxxxxxx, Esq.
Partner
XxXxxxxx & English, LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Business:
Phone (000) 000-0000 (Newark, NJ)
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Fax (000) 000-0000 (Newark, NJ)
E-Mail mailto:xxxxxxxxxx@xxxxxxxx.xxx
(b) if to the Stockholder or the Company, to
Xxxxxxxx Xxxx (Xxxx)
Chief Executive Officer
Vertex Interactive, Inc.
000 Xxxxx 00X
Xxxxx 000
Xxxxxxx, XX 00000
Business:
Phone (000) 000-0000
Fax (000) 000 0000
and to
Xxxxxxx X. Xxxxx, Esq.
Law Offices of Xxxxxxx X. Xxxxx
P.O. Box 2665
000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Business:Phone (000) 000-0000 (Clifton, NJ)
Fax (000) 000-0000 (Clifton, NJ)
E-Mail mailto:xxxxx@xxxxxxxx.xxx
5.5. Governing Law.
This Agreement shall be governed by the laws of the State of New
Jersey (regardless of the laws that might otherwise govern under
applicable New Jersey principles of conflicts of law)as to all
matters, including but not limited to matters of validity,
construction, effect, performance and remedies. Since the Company
is an organization formed under the law of the Republic of France
the contemplated transactions herein may in part be governed by
such laws.
It is the intention of the parties to comply with any applicable
provisions of French Law and the parties agreement to amend this
agreement and/or take such additional acts as the Buyer may
deem to be may be necessary or desirable to comply with French
Law and otherwise implement the intentions of the parties
hereunder.
5.6. Descriptive Headings.
The descriptive headings herein are inserted for convenience of
reference only and shall in no way be construed to define, limit,
describe, explain, modify, amplify, or add to the interpretation,
construction or meaning of any provision of, or scope or intent
of, this Agreement nor in any way affect this Agreement.
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5.7. Counterparts.
This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which
together shall Constitute one and the same instrument.
5.8. Expenses.
Whether or not this Agreement and the transactions contemplated
hereby are consummated, and except as otherwise expressly set
forth herein, all costs and expenses (including legal fees and
expenses) incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party
incurring such expenses.
5.9. Parties in Interest.
This Agreement shall be binding upon and inure solely to the
benefit of each party hereto and its affiliates and nothing in
this Agreement, express or implied, is intended by or shall
confer upon any other person any rights, benefits or remedies of
any nature whatsoever under or by reason of this Agreement.
5.10. No Waivers.
Except as otherwise expressly provided herein, no failure to
exercise, delay in exercising,
or single or partial exercise of any right, power or remedy by
any party, and no course of dealing
between the parties, shall constitute a waiver of any such right,
power or remedy
5.11. Transfer Taxes.
The Stockholder shall be responsible for, and pay, all sales,
use, transfer, filing, conveyance, recording, and other similar
Taxes and fees, including without limitation all applicable real
estate transfer and real property gains Taxes and recording fees
and stock transfer Taxes (collectively, "Transfer Taxes"),
arising out of or in connection with the transactions effected
pursuant to this Agreement. If the Buyer has primary
responsibility under applicable law for the payment of any
particular Transfer Tax, Buyer shall prepare and file the
relevant Tax Return, pay the Transfer Tax shown on such Tax
Return, and notify the Sellers of such Transfer Tax. In such
event, the Stockholder shall reimburse the Buyer for the Transfer
Tax in immediately available funds within five days of such
notice.
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be duly signed as of the date first above written
MidMark Capital II, L.P.
By MidMark Associates II, LLC
By /s/Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
MidMark Capital, L.P.
By MidMark Associates, Inc.
By /s/Xxxxx X. Xxxxxxxxx
STOCKHOLDER
Xxxxx X. Xxxxxxxxx
Vertex Interactive, Inc.
By /s/Xxxxxxxx X. Xxxx
Name: X. Xxxx
Title: CEO
DynaSys S.A.
By /s/Xxxxxxxx X. Xxxx
Name: X. Xxxx
Title: Director
