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EXHIBIT 10.29
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is dated as of March 26, 1999 (this
"AGREEMENT") and is by and among Steadi-Systems, Ltd., a California corporation
("STEADI"), Daisytek, Inc., a Delaware corporation ("DAISYTEK"), Videotape
Products, Inc., a California corporation ("VTP"), Xxxx Xxxxxxxxx and Xxxxxxx
Xxxxxx (collectively, the "STOCKHOLDERS").
VTP is engaged in the business of, among other things, the sale and
distribution of professional video and audio recording tape, data storage media
products and related products. Steadi is engaged in the business of, among other
things, the sale, distribution and rental of professional video and audio
hardware products. VTP and Steadi have each agreed to purchase and acquire
certain assets, and assume certain liabilities, of the other. Accordingly, in
consideration of the mutual representations, warranties and covenants contained
herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1. CERTAIN DEFINED TERMS. As used in this Agreement, (i) terms defined
in the Preamble or elsewhere in this Agreement shall have the meaning set forth
therein and (ii) the following terms shall have the following meanings:
"ACTION" means any claim, action, suit, arbitration, inquiry,
proceeding or investigation, in each case, by or before any Governmental
Authority.
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"CONSIGNMENT AGREEMENTS" means the Inventory Consignment Agreement
dated October 30, 1998 between VTP and CIN Services, Inc. and the Inventory
Consignment Agreement dated March 15, 1997 between VTP and CineFilm Laboratory,
Inc.
"CONTROL" (including the terms "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH"), with respect to the relationship between or among two or more
Persons, means the possession, directly or indirectly or as trustee or executor,
of the power to direct or cause the direction of the affairs or management of a
Person, whether through the ownership of voting securities, as trustee or
executor or by contract, including, without limitation, the ownership, directly
or indirectly, of securities having the power to elect a majority of the board
of directors or similar body governing the affairs of such Person.
"ENCUMBRANCE" means any security interest, pledge, mortgage, lien
(including, without limitation, environmental and tax liens), charge,
encumbrance, adverse claim, preferential
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arrangement, or restriction of any kind, including, without limitation, any
restriction on the use, voting, transfer, receipt of income or other exercise of
any attributes of ownership.
"ENVIRONMENT" means surface waters, groundwaters, soil, subsurface
strata and ambient air.
"ENVIRONMENTAL CLAIMS" means any and all administrative, regulatory or
judicial actions, suits, demand letters, claims, liens, notices of noncompliance
or violation, investigations, proceedings, consent orders or consent agreements
relating in any way to any Environmental Law or any Environmental Permit
(hereinafter "Claims"), including without limitation (a) any and all Claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law and (b)
any and all Claims by any Person seeking damages, contribution, indemnification,
cost recovery, compensation or injunctive relief resulting from Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment.
"ENVIRONMENTAL LAWS" means any federal, state or local law or any
foreign law, including any statute, rule, regulation, ordinance, code or rule of
common law, now or hereafter in effect and in each case as amended, including
any judicial or administrative order, consent decree or judgment, relating to
the environment, health, safety or Hazardous Materials, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, and the rules and regulations promulgated thereunder;
the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. Sections 6901 et seq.; the
Clean Water Act, 33 U.S.C. Sections 1251 et seq.; the Toxic Substances Control
Act, 15 U.S.C. Sections 2601 et seq.; the Clean Air Act, 42 U.S.C. Sections 7401
et seq.; the Safe Drinking Water Act, 42 U.S.C. Sections 300f et seq.; the
Atomic Energy Act, 42 U.S.C. Sections 2011 et seq.; and the Federal Insecticide,
Fungicide and Rodenticide Act, 7 U.S.C. Sections 136 et seq.
"ENVIRONMENTAL PERMITS" means all permits, written approvals, U.S.
Environmental Protection Agency or state generator numbers, licenses and other
authorizations from applicable Governmental Authorities required under any
applicable Environmental Law.
"GOVERNMENTAL AUTHORITY" means any United States federal, state, local,
possession or foreign governmental, regulatory or administrative authority,
agency or commission, or any political subdivision thereof, or any court,
tribunal or arbitral body.
"GOVERNMENTAL ORDER" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"HARDWARE BUSINESS" means the sale, distribution, rental and service of
professional video and audio hardware products (excluding video and audio tape
products, data storage media products and film) conducted by Steadi and its
subsidiaries, taken as a whole (excluding the logistics, fulfillment,
distribution and transaction management services outsourcing business conducted
by Priority Fulfillment Services, Inc., a Daisytek subsidiary, and its
Affiliates).
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"HAZARDOUS MATERIALS" means (a) petroleum and petroleum fuels,
lubricants and cleaning agents, radioactive materials, friable asbestos material
as defined under 40 C.F.R. 61.141, urea formaldehyde foam insulation,
transformers or other equipment that contain polychlorinated biphenyls in
concentrations of 50 ppm, and radon gas; (b) any other chemicals, materials or
substances defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials" or "extremely hazardous wastes"; and
(c) any other chemical, material or substance exposure to which is regulated
pursuant to any applicable Environmental Law.
"INDEMNIFIED PARTY" means any Person having a right to indemnification
from an Indemnifying Party under the terms and provisions of Article VIII
hereof.
"INDEMNIFYING PARTY" means any Person responsible or obligated to
provide indemnification to an Indemnified Party under the terms and provisions
of Article VIII hereof.
"LIABILITIES" means any and all debts, liabilities and obligations,
whether accrued or fixed, absolute or contingent, matured or unmatured or
determined or determinable, including, without limitation, those arising under
any law (including, without limitation, any Environmental Law), rule,
regulation, Action or Governmental Order and those arising under any contract,
agreement, arrangement, commitment or undertaking, including all indemnification
obligations under any charter document, any indemnity agreement or as permitted
under applicable law.
"MATERIAL ADVERSE EFFECT" means any circumstance, change in, or effect
on, (i) for purposes of the representations of VTP and the Stockholders
hereunder, the Tape Business or (ii) for purposes of the representations of
Steadi hereunder, the Hardware Business, in each case, that, individually or in
the aggregate with any other circumstances, changes in, or effects on, the Tape
Business or the Hardware Business, as the case may be, is, or would be,
materially adverse to the operations, assets or liabilities (including, without
limitation, contingent liabilities), customer or supplier relationships,
prospects, results of operations or the condition (financial or otherwise) of
the Tape Business or the Hardware Business, as the case may be.
"PERSON" means any individual, partnership, firm, corporation,
association, trust, unincorporated organization or other entity, as well as any
syndicate or group that would be deemed to be a person under Section 13(d)(3) of
the Securities Exchange Act of 1934, as amended.
"STRATEGIC ALLIANCE AGREEMENT" means the Strategic Alliance Agreement
of even date herewith to be executed and delivered by VTP, Steadi, Daisytek and
the Stockholders concurrently with the Closing hereunder.
"TAPE BUSINESS" means the sale and distribution of professional video
and audio recording tape, data storage media products, film and related products
(excluding hardware and equipment) as conducted by VTP.
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"TRANSITION SERVICES AGREEMENT" means the Transition Services Agreement
of even date herewith to be executed and delivered by VTP and Steadi
concurrently with the Closing hereunder.
ARTICLE II
SALE AND PURCHASE OF TAPE ASSETS
2.1. SALE AND PURCHASE OF TAPE ASSETS. Subject to the terms and
conditions of this Agreement and on the basis of and in reliance upon the
representations, warranties, obligations and agreements set forth herein, VTP
does hereby validly sell, assign, transfer, convey and deliver to Steadi, and
Steadi does hereby purchase and acquire from VTP, all of the right, title and
interest of VTP in, to and under all of the following assets to the extent they
relate to, or are used by VTP in connection with or are necessary for the
operation of, the Tape Business (collectively, the "TAPE ASSETS"):
(a) all customer lists, telephone lists, prospect lists,
customer information (including all information relating to customer credit
history, purchasing information, contact names, addresses and phone numbers and
all other customer information), all advertising materials, catalogs, price
lists, mailing lists, distribution lists, sales and promotional materials,
customer and sales order, files and records, all rights (but not obligations)
under all unfilled customer purchase orders and the Consignment Agreements,
customer commitments and obligations relating to future purchases, all trade
secrets and confidential information, all rights to enforce all confidentiality
and non-disclosure agreements with respect to the Tape Business, all
transferable licenses, franchises, rights and authorizations, those certain
telephone and fax numbers set forth on Schedule 2.1(a) hereto and all goodwill
of every kind and nature relating to or associated with the Tape Business
(collectively, the "TAPE GOODWILL ASSETS"); and
(b) all Tape Business finished goods inventory, consisting of
the products set forth on Schedule 2.1(b) hereto, including all transferable
rights of return to the supplier thereof, if any, and all other rights, benefits
and privileges associated therewith or related thereto; (collectively, the "TAPE
INVENTORY"), excluding, however, all inventory which is (i) visibly damaged or
defective, (ii) as to certain products so identified on Schedule 2.1(b) hereto,
in excess of the maximum amount therefor set forth therein or (iii) physically
segregated from the Tape Inventory and to be shipped in fulfillment of customer
orders received prior to the Closing or returned to the manufacturer
(collectively, the "EXCLUDED TAPE INVENTORY").
Except for the Tape Assets, and except as otherwise described in the Transition
Services Agreement, VTP is not selling or transferring to Steadi, and Steadi is
not purchasing or acquiring from VTP, any assets or other property relating to
the Tape Business, including all accounts receivable and the name "Videotape
Products".
2.2. NO ASSUMED TAPE LIABILITIES. Notwithstanding the purchase of the
Tape Assets, Steadi does not assume or agree to discharge or perform any debts,
liabilities or obligations of VTP or any predecessor or affiliate thereto, it
being expressly agreed and understood that Steadi does not agree to assume, nor
shall have any responsibility, liability or obligation for any
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Liabilities of VTP or the Stockholders, including the following (collectively,
the "RETAINED TAPE LIABILITIES"):
(i) any liability or obligation of VTP based upon, arising out
of or otherwise in respect of the negotiation and preparation of this Agreement
or any of the Schedules or Exhibits hereto, or the consummation of the
transactions contemplated hereby, including without limitation, any tax
liability so arising;
(ii) any liability or obligation based upon, arising out of or
otherwise in respect of, any accounts payable, trade payables, employee wages,
employee benefits, product liability, product warranty, or any agreement or
contract to which VTP is a party;
(iii) any liability or obligation of VTP, or any consolidated
group of which VTP is or has been a member, for any federal, state, county or
local taxes, or any interest, additions to and/or penalties thereon, accrued
for, applicable to or arising during any period whether prior to or following
the date hereof;
(iv) any liability or obligation of VTP for any cause of
action, claim, demand, breach or violation of any kind or description, whether
arising under any contract, agreement, law, rule or regulation, or otherwise,
including without limitation, any claim for personal injury, malpractice,
negligence, fraud, discrimination, sexual harassment, wrongful termination,
property damage or any environmental claim or remedial claim; and
(v) any liability or obligation arising under any collective
bargaining agreement, union contract, employment agreement or other agreement or
understanding of any kind relating to employment of any employee or group of
employees.
2.3. TAPE PURCHASE PRICE. In consideration of the sale, assignment,
transfer, conveyance and delivery of the Tape Assets by VTP to Steadi and the
execution and delivery of the Strategic Alliance Agreement and the Transition
Services Agreement, Steadi shall pay to VTP the amounts set forth below
(collectively, the "TAPE PURCHASE PRICE") subject to, and in accordance with,
the following:
(a) The sum of $ 11,100,000 which shall be allocated as the
purchase price for the Tape Goodwill Assets; and
(b) The purchase price for the Tape Inventory shall be
determined as follows. As promptly as practicable following the Closing, VTP and
Steadi shall jointly conduct a physical inventory count of all Tape Inventory
located at the locations set forth on Schedule 2.3(b). Upon completion of such
physical inventory count, VTP and Steadi shall jointly determine the purchase
price for the Tape Inventory which shall be based upon the product prices (net
of vendor rebates) set forth on Schedule 2.1(b). Steadi shall be responsible
for, and shall promptly thereafter arrange for, the shipping and delivery of the
Tape Inventory to the Steadi warehouse(s) (except for the Tape Inventory located
in the Tape Premises (as defined in the Transition Services Agreement) or
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held by the consignees under the Consignment Agreements which shall remain in
such locations). All shipping and delivery costs (and all risk of loss in
transit) shall be borne by Steadi.
ARTICLE III
SALE AND PURCHASE OF HARDWARE ASSETS
3.1. SALE AND PURCHASE OF HARDWARE ASSETS. Subject to the terms and
conditions of this Agreement and on the basis of and in reliance upon the
representations, warranties, obligations and agreements set forth herein, Steadi
does hereby validly sell, assign, transfer, convey and deliver to VTP, and VTP
does hereby purchase and acquire from Steadi, all of the right, title and
interest of Steadi in, to and under all of the following assets to the extent
they relate to, or are used by Steadi in connection with or are necessary for
the operation of, the Hardware Business (collectively, the "HARDWARE ASSETS"):
(a) all customer lists, telephone lists, prospect lists,
customer information (including all information relating to customer credit
history, purchasing information, contact names, addresses and phone numbers and
all other customer information), all advertising materials, catalogs, price
lists, mailing lists, distribution lists, sales and promotional materials,
customer and sales order files and records, all rights (including the deposits)
under the unfilled customer purchase orders set forth on Schedule 3.1(a),
customer commitments and obligations relating to future purchases, all trade
secrets and confidential information, all rights to enforce all confidentiality
and non-disclosure agreements with respect to the Hardware Business, all
transferable licenses, franchises, rights and authorizations, those certain
telephone and fax numbers set forth on Schedule 2.1(a) hereto and all goodwill
of every kind and nature relating to or associated with the Hardware Business
(collectively, the "HARDWARE GOODWILL ASSETS");
(b) all rental agreements which are in effect as of the
Closing (collectively, the "HARDWARE EQUIPMENT LEASES") and all hardware and
equipment which is subject thereto (collectively, the "LEASED HARDWARE
EQUIPMENT") and all credit card authorization slips and insurance certificates
received by Steadi in connection therewith; and
(c) all Hardware Business finished goods inventory (including
all inventory designated on Steadi's records as new, used, rental, demo,
defective and service parts) consisting of the products set forth on Schedule
3.1(c) hereto, including all transferable rights of return to the supplier
thereof, if any, and all other rights, benefits and privileges associated
therewith or related thereto (the "HARDWARE INVENTORY"), excluding, however, all
inventory which is physically segregated from the Hardware Inventory and to be
shipped in fulfillment of customer orders received prior to the Closing or
returned to the manufacturer (the "EXCLUDED HARDWARE INVENTORY");
Except for the Hardware Assets, and except as otherwise described in the
Transition Services Agreement, Steadi is not selling or transferring to VTP, and
VTP is not purchasing or acquiring from Steadi, any assets or other property
relating to the Hardware Business, including all accounts receivable and the
name "Steadi Systems".
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3.2. ASSUMED HARDWARE LIABILITIES. Subject to the terms and conditions
contained herein, VTP does hereby assume and agree to discharge and perform all
liabilities and obligations arising under (i) the Hardware Equipment Leases with
respect to the remaining terms thereof from and after the date hereof (ii) the
unfilled customer orders set forth on Schedule 3.1(a) (collectively, the
"ASSUMED HARDWARE LIABILITIES").
Except for the Assumed Hardware Liabilities, VTP does not assume or
agree to discharge or perform any debts, liabilities or obligations of Steadi or
any predecessor or affiliate thereto, it being expressly agreed and understood
that VTP does not agree to assume, nor shall have any responsibility, liability
or obligation for any Liabilities of Steadi, including the following
(collectively, the "RETAINED HARDWARE LIABILITIES"):
(i) any liability or obligation of Steadi based upon, arising
out of or otherwise in respect of the negotiation and preparation of this
Agreement or any of the Schedules or Exhibits hereto, or the consummation of the
transactions contemplated hereby, including without limitation, any tax
liability so arising;
(ii) any liability or obligation based upon, arising out of or
otherwise in respect of, any accounts payable, trade payables, employee wages,
employee benefits, product liability, product warranty, or any agreement or
contract to which Steadi is a party;
(iii) any liability or obligation of Steadi, or any
consolidated group of which Steadi is or has been a member, for any federal,
state, county or local taxes, or any interest, additions to and/or penalties
thereon, accrued for, applicable to or arising during any period whether prior
to or following the date hereof;
(iv) any liability or obligation of Steadi for any cause of
action, claim, demand, breach or violation of any kind or description, whether
arising under any contract, agreement, law, rule or regulation, or otherwise,
including without limitation, any claim for personal injury, malpractice,
negligence, fraud, discrimination, sexual harassment, wrongful termination,
property damage or any environmental claim or remedial claim; and
(v) any liability or obligation arising under any collective
bargaining agreement, union contract, employment agreement or other agreement or
understanding of any kind relating to employment of any employee or group of
employees.
3.3. HARDWARE PURCHASE PRICE. In consideration of the sale, assignment,
transfer, conveyance and delivery of the Hardware Assets by Steadi to VTP and
the execution and delivery of the Strategic Alliance Agreement and the
Transition Services Agreement, VTP shall assume the Assumed Hardware Liabilities
and shall pay to Steadi the amounts set forth below (collectively, the "HARDWARE
PURCHASE PRICE") subject to, and in accordance with, the following:
(a) The sum of One Dollar ($1.00) which shall be allocated as
the purchase price for the Hardware Goodwill Assets and the Hardware Equipment
Leases;
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(b) The purchase price for the Hardware Inventory and the
Leased Hardware Equipment shall be determined as follows. As promptly as
practicable following the Closing, VTP and Steadi shall jointly conduct a
physical inventory count of all Hardware Inventory located at the locations set
forth on Schedule 3.3(b) and a listing of the Hardware Equipment Leases and the
Leased Hardware Equipment. Upon completion of such physical inventory count and
listing, Steadi and VTP shall jointly determine the purchase price for the
Hardware Inventory and the Leased Hardware Equipment which shall be based upon
the product prices set forth on Schedule 3.1(c). Steadi shall deliver to VTP the
Hardware Equipment Leases, and VTP shall be responsible for, and shall promptly
thereafter arrange for, the shipping and delivery of the Hardware Inventory to
the VTP warehouse(s) (except for the Hardware Inventory located in the Hardware
Premises (as defined in the Transition Services Agreement) which shall remain in
such locations). All shipping and delivery costs (and all risk of loss in
transit) shall be borne by VTP.
ARTICLE IV
CLOSING OF TAPE TRANSACTION AND HARDWARE TRANSACTION
4.1. CLOSING. The closing ("CLOSING") of the sale and purchase of the
Tape Assets as described herein (the "TAPE TRANSACTION") and the sale and
purchase of the Hardware Assets as described herein (the "HARDWARE TRANSACTION")
shall occur concurrently with each other and immediately following the execution
and delivery of this Agreement on the date hereof (the "CLOSING DATE"). The
Closing shall be held at the offices of Xxxx & Xxxx, Pasadena, California or at
such other time and place as the parties shall mutually agree. Subject to the
terms set forth herein, the Closing of the Tape Transaction and the Hardware
Transaction shall be deemed effective for all purposes immediately following the
close of business (Pacific time) on the Closing Date.
4.2. PAYMENT OF THE NET PURCHASE PRICE. At the Closing, Steadi shall
pay to VTP the sum of $5,500,000 (the "INITIAL PAYMENT") in cash by wire
transfer to an account designated in writing by VTP (the "VTP ACCOUNT"). Within
three business days following the determination of the Tape Inventory Purchase
Price and the Hardware Inventory Purchase Price, (a) Steadi and VTP shall
execute and deliver a Closing Statement setting forth the Tape Purchase Price
and the Hardware Purchase Price, as finally determined, and each of the
respective components thereof as provided above, and (b) VTP shall deliver to
Steadi reasonably satisfactory evidence that the holders of all Encumbrances
upon the Tape Assets have released such Encumbrances, whereupon Steadi shall
thereafter pay to VTP, by wire transfer to the VTP Account, the amount (the "NET
PAYMENT") by which (i) the Tape Purchase Price minus the Initial Payment exceeds
(ii) the Hardware Purchase Price. The Net Payment shall be adjusted, at such
time or times as may be necessary, whether as of the Closing or following the
Closing, to reflect and equitably account for (i) any liabilities of a party
hereto accrued prior to the Closing Date which the other party hereto agrees to
pay (or does pay) for the mutual convenience of the parties and in order to
effect an orderly transition of the business being purchased hereunder, (ii) the
transfer of the deposits under the unfilled customer orders set forth on
Schedule 3.1(a) and (iii) the transfer of the Hardware Equipment Leases and any
amounts received by VTP in payment of amounts owing under the Hardware Equipment
Leases which relate to the period prior to the Closing. Any adjustment to
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the Net Payment shall be paid within three business days following the
determination thereof, in cash by wire transfer to the account designated by the
receiving party.
4.3. ACTIONS TAKEN AT CLOSING. The following actions shall be taken at
the Closing, and all such actions shall be deemed to have occurred concurrently
with each other.
(a) ANCILLARY AGREEMENTS. The parties shall execute and
deliver the Strategic Alliance Agreement and the Transition Services Agreement.
(b) XXXX OF SALE AND ASSIGNMENT AND ASSUMPTION AGREEMENT. The
parties shall execute and deliver a Xxxx of Sale and Assignment and Assumption
Agreement to evidence the purchase and sale of the Tape Assets and the Hardware
Assets hereunder and the assignment and assumption of the Hardware Equipment
Leases and the Assumed Hardware Liabilities.
(c) RESOLUTIONS. Each party shall deliver a true and complete
copy, certified by its Secretary or Assistant Secretary, of the resolutions duly
adopted by its Board of Directors evidencing its authorization of the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby.
(d) INITIAL PAYMENT. Steadi shall pay the Initial Payment to
VTP in accordance with the terms set forth herein.
(e) ELECTRONIC TRANSMISSION. The Tape Goodwill Assets and the
Hardware Goodwill Assets shall be transferred by electronic transmission in such
manner as the parties shall mutually agree.
4.4. OFFER OF EMPLOYMENT. VTP agrees not to interfere with the ability
of Steadi to offer employment to the employees listed on Schedule 4.4(i) hereto
(the "TAPE EMPLOYEES") and Steadi agrees not to interfere with the ability of
VTP to offer employment to the employees listed on Schedule 4.4(ii) hereto (the
"HARDWARE EMPLOYEES"). This Section shall not be construed as a promise of
employment, nor shall any Tape Employee or Hardware Employee be deemed a
third-party beneficiary hereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF VTP
VTP and the Stockholders hereby, jointly and severally, make the
following representations and warranties to Steadi:
5.1. ORGANIZATION AND QUALIFICATION. VTP is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
California with full corporate power and authority to own its properties and to
carry on the Tape Business as now conducted.
5.2. CAPITALIZATION. The Stockholders are the lawful record and
beneficial owners of all of the issued and outstanding shares of capital stock
of VTP. VTP has no other shares or other
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securities which are authorized, issued and/or outstanding other than the shares
of capital stock owned by the Stockholders.
5.3. AUTHORITY; BINDING OBLIGATION. The Stockholders and VTP have all
requisite power and authority to execute, deliver and perform their respective
obligations under this Agreement and the Strategic Alliance Agreement and the
Transition Services Agreement and consummate the transactions contemplated
herein and therein. The execution and delivery of this Agreement and the
Strategic Alliance Agreement and the Transition Services Agreement and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors and stockholders of VTP, and no other
action on the part of VTP or Stockholders is necessary to consummate the
transactions contemplated hereby or thereby. This Agreement and the Strategic
Alliance Agreement and the Transition Services Agreement have been duly executed
and delivered by the Stockholders and VTP and constitute the legal, valid and
binding obligation of the Stockholders and VTP enforceable in accordance with
its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditor's rights' generally and to
general equitable principles.
5.4. NO VIOLATIONS. The execution, delivery and performance of this
Agreement and the Strategic Alliance Agreement and the Transition Services
Agreement and the consummation of the transactions contemplated herein and
therein by the Stockholders and VTP do not and will not, with or without the
giving of notice or passage of time or both (a) violate, conflict with or result
in the breach of any term or provision of, or require any notice, filing or
consent under (i) the certificate or articles of incorporation, by-laws or other
charter documents of VTP, (ii) any statutes, laws, rules, regulations,
ordinances or permits of any Governmental Authority applicable to the
Stockholders or VTP or (iii) any Governmental Order binding upon VTP or the
Stockholders or any of their respective properties or assets; (b) conflict with
or result in the breach of any term or provision of, require any notice or
consent under, give rise to a right of termination of, constitute a default
under, result in the acceleration of, or give rise to a right to accelerate any
obligation under, any loan agreement, mortgage, indenture, financing agreement,
lease or any other contract, agreement or instrument to which VTP or any
Stockholder is a party or by which any of their respective properties or assets
are bound; or (c) result in any Encumbrance on any of the properties or assets
of any Stockholder or VTP.
5.5. FINANCIAL STATEMENTS. VTP has furnished to Steadi certain
financial information regarding the Tape Business which is described on Schedule
5.5 hereto (the "TAPE FINANCIAL STATEMENTS"). The Tape Financial Statements (i)
were prepared in all material respects in accordance with the books of account
and other financial records of VTP and (ii) fairly present the financial
condition and results of operations for the Tape Business as of the dates and
for the periods covered thereby.
5.6. BOOKS OF ACCOUNTS. The books of account and other financial
records of the Tape Business maintained by VTP and made available to Steadi (i)
reflect all items of income and expense and all assets and liabilities required
to be reflected therein in accordance with good accounting practice, (ii) are in
all material respects complete and correct and do not contain or reflect any
material inaccuracies or discrepancies and (iii) have been maintained in
accordance with good business and accounting practices.
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5.7. INVENTORY. The Tape Inventory is in the physical possession of VTP
and stored at the locations set forth on Schedule 2.3(c) (except for the Tape
Inventory held by the consignees under the Consignment Agreements). Subject to
amounts reserved therefor, the value at which the Tape Inventory is carried in
the Tape Financial Statements reflect the historical inventory valuation policy
of VTP of stating such inventory at the lower of their cost or market value. VTP
has, and is conveying to Steadi hereby, good and marketable title to all of the
Tape Inventory, free and clear of all Encumbrances. The Tape Inventory does not
include any items held by VTP on consignment for others.
5.8. ASSETS. VTP has, and is conveying to Steadi hereby, good and
marketable title to all of the other Tape Assets, free and clear of all
Encumbrances.
5.9. CONDUCT IN THE ORDINARY COURSE; ABSENCE OF CERTAIN CHANGES.
(a) Since the date of the most recent balance sheet included
in the Tape Financial Statements (the "BALANCE SHEET DATE"), there has not been
any change in the assets, customer or supplier relations, operations, results of
operations, prospects or condition (financial or otherwise) of the Tape
Business, including, without limitation, any damage or destruction of property
by fire or other casualty, which change would have a Material Adverse Effect.
(b) Since the Balance Sheet Date, the Tape Business has
been conducted in all material respects in the ordinary course and consistent
with past practice.
5.10. LITIGATION. There are no Actions pending or, to VTP's or the
Stockholders' knowledge, threatened, against any VTP and which relate to the
Tape Business. Neither VTP, nor any of its assets or properties, is subject to
any Governmental Order (nor, to the knowledge of VTP or the Stockholders, are
there any such Governmental Orders threatened to be imposed by any Governmental
Authority) which has had or would have a Material Adverse Effect.
5.11. COMPLIANCE WITH LAWS. To the best of VTP's and the Stockholders'
knowledge, VTP has conducted the Tape Business in all material respects in
accordance with all applicable laws, ordinances, statutes, rules, regulations
and Governmental Orders applicable to it or any of its properties or assets, and
VTP is not in violation of any such law, ordinance, statute, rule, regulation or
Governmental Order. In conducting the Tape Business, neither VTP nor any
officer, director, employee, agent or representative of VTP has violated or is
currently in violation of the Foreign Corrupt Practices Act of 1977, as amended.
5.12. ENVIRONMENTAL AND OTHER PERMITS AND LICENSES; RELATED MATTERS.
(a) To the best of VTP's and the Stockholder's knowledge, VTP
currently holds all health and safety and other permits, licenses,
authorizations, certificates, exemptions and approvals of Governmental
Authorities (collectively, "PERMITS"), including, without limitation,
Environmental Permits, necessary or proper for the current operation or conduct
of the Tape Business, and all such Permits and Environmental Permits are in full
force and effect. VTP has not received any notice from any Governmental
Authority revoking, canceling, rescinding, materially modifying or refusing to
renew any such Permit or providing written notice of violations under
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any Environmental Law. To the best of VTP's and the Stockholders' knowledge, VTP
is in all material respects in compliance with all applicable Permits, all
applicable Environmental Laws and the requirements of all applicable
Environmental Permits.
(b) To the best of VTP's and the Stockholders' knowledge, in
conducting the Tape Business (i) Hazardous Materials have not been generated,
used, treated, handled or stored on, or transported to or from, or released (as
"release" is defined under any applicable Environmental Law) on any real
property owned, leased or occupied by VTP; (ii) VTP has disposed of all wastes,
including those containing Hazardous Materials, in compliance with all
applicable Environmental Laws and Environmental Permits; and (iii) there are no
past, pending or threatened Environmental Claims, nor any basis for asserting
the same, against any VTP.
5.13. MATERIAL TAPE CONTRACTS.
Schedule 5.13 lists each of the following contracts and
agreements to which VTP is a party and which relate to the Tape Business (such
contracts and agreements being collectively referred to herein as the "MATERIAL
TAPE CONTRACTS"):
(i) all contracts, agreements and other arrangements,
whether oral or written, with any customer or supplier for the purchase or sale
of inventory, other than open purchase or sale orders arising in the ordinary
course of the Tape Business consistent with past practice;
(ii) except for ordinary vendor contracts for the
purchase of inventory, all broker, distributor, dealer, manufacturer's
representative, franchise, agency, sales promotion, market research, marketing
and advertising contracts, management contracts and consulting contracts to
which VTP is a party and which involve payments, or the provision of goods or
services having a value in excess of $50,000;
(iii) all contracts and agreements with any
Governmental Authority to which VTP is a party;
(iv) all contracts and agreements with manufacturers
under which VTP is designated as an exclusive distributor;
(v) all contracts and agreements that limit the
ability of VTP to compete in any line of business or with any Person or entity
or in any geographic area or during any period of time;
(vi) except for ordinary vendor contracts for the
purchase of inventory, all other contracts, agreements and other arrangements,
whether or not made in the ordinary course of the Tape Business, which if
terminated by the other party thereto (with or without notice and with or
without cause) would cause a Material Adverse Effect upon the Tape Business as
presently conducted; and
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(vii) the Consignment Agreements and all other
agreements pursuant to which any other party holds any Tape Inventory on
consignment or on a sale or return basis or similar arrangement.
5.14. CUSTOMERS. VTP has delivered to Steadi a true, correct and
complete list of the names of the top 20 customers of the Tape Business (by
revenue) during the twelve (12) month period ended October 31, 1998 and the four
months ended February 28, 1999. Except as set forth on Schedule 5.14, to the
best of VTP's and the Stockholders' knowledge, VTP has not received any oral or
written notice that any of such customers has ceased, or will cease, to use the
products, equipment, goods or services of VTP, or has substantially reduced, or
will substantially reduce, the use of such products, equipment, goods or
services following the Closing Date.
5.15. SUPPLIERS. VTP has delivered to Steadi a true, correct and
complete list of the names and addresses of the top ten suppliers of the Tape
Business (by purchase order dollar amount) during the twelve (12) month period
ended October 31, 1998.
5.16. BROKERS. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of VTP or the Stockholders.
5.17. FULL DISCLOSURE. Neither VTP nor the Stockholders have knowledge
of any facts pertaining to VTP or the Tape Business which would have a Material
Adverse Effect and which have not been disclosed in this Agreement or any of the
Schedules hereto (except for general economic conditions or factors affecting
the industry as a whole in which the Tape Business operates). No representation
or warranty of VTP or the Stockholders in this Agreement, or any Schedules
hereto, or any certificate furnished to Steadi pursuant to this Agreement,
contains any untrue statement of a material fact, or omits to state a material
fact necessary to make the statements contained herein or therein not
misleading.
5.18. PURCHASE FOR RESALE. VTP is purchasing the Hardware Inventory for
resale and will provide to Steadi a resale certificate upon request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF STEADI
Steadi and Daisytek hereby, jointly and severally, represent and
warrant to VTP and the Stockholders as follows:
6.1. ORGANIZATION AND QUALIFICATION. Steadi is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
California with full corporate power and authority to own its properties and to
carry on the Hardware Business as now conducted.
6.2. CAPITALIZATION. Steadi is a wholly owned subsidiary of Daisytek.
Except for Steadi and its subsidiaries and Affiliates, neither Daisytek nor any
other subsidiary or affiliate of Daisytek is engaged in the Hardware Business.
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6.3. AUTHORITY; BINDING OBLIGATION. Steadi and Daisytek have all
requisite power and authority to execute, deliver and perform its respective
obligations under this Agreement and the Strategic Alliance Agreement and the
Transition Services Agreement and consummate the transactions contemplated
herein and therein. The execution and delivery of this Agreement and the
Strategic Alliance Agreement and the Transition Services Agreement and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by the Board of Directors and stockholder of Steadi and Daisytek, and
no other action on the part of Steadi or Daisytek is necessary to consummate the
transactions contemplated hereby or thereby. This Agreement and the Strategic
Alliance Agreement and the Transition Services Agreement have been duly executed
and delivered by Steadi and Daisytek and constitute the legal, valid and binding
obligation of Steadi and Daisytek enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting creditor's rights' generally and to general equitable
principles.
6.4. NO VIOLATIONS. The execution, delivery and performance of this
Agreement and the Strategic Alliance Agreement and the Transition Services
Agreement and the consummation of the transactions contemplated herein and
therein by Steadi and Daisytek do not and will not, with or without the giving
of notice or passage of time or both (a) violate, conflict with or result in the
breach of any term or provision of, or require any notice, filing or consent
under (i) the certificate or articles of incorporation, by-laws or other charter
documents of Steadi and Daisytek, (ii) any statutes, laws, rules, regulations,
ordinances or permits of any Governmental Authority applicable to Steadi and
Daisytek or (iii) any Governmental Order binding upon Steadi and Daisytek or any
of its properties or assets; (b) conflict with or result in the breach of any
term or provision of, require any notice or consent under, give rise to a right
of termination of, constitute a default under, result in the acceleration of, or
give rise to a right to accelerate any obligation under, any loan agreement,
mortgage, indenture, financing agreement, lease or any other contract, agreement
or instrument to which Steadi and Daisytek is a party or by which any of its
properties or assets are bound; or (c) result in any Encumbrance on any of the
properties or assets of Steadi and Daisytek.
6.5. INVENTORY. The Hardware Inventory is in the physical possession of
Steadi and stored at the locations set forth on Schedule 3.2(b). Steadi has, and
is conveying to VTP hereby, good and marketable title to all of the Hardware
Inventory, free and clear of all Encumbrances. The Hardware Inventory does not
include any items held by Steadi on consignment for others.
6.6. ASSETS. Steadi has, and is conveying to VTP hereby, good and
marketable title to all of the other Hardware Assets, free and clear of all
Encumbrances.
6.7. HARDWARE EQUIPMENT LEASES. Together with the physical inventory
count, Steadi will deliver to VTP true, correct and complete copies of all
Hardware Equipment Leases and all amendments, modifications, supplements and
addendums thereto. Each Hardware Equipment Lease: (i) is valid and binding on
Steadi and, to the best of Steadi's knowledge, on the other parties thereto and
is in full force and effect, and (ii) upon consummation of the transactions
contemplated by this Agreement shall continue in full force and effect without
penalty or other adverse consequence and unaffected by such transactions. Except
for the credit card authorization slips, Steadi has neither accepted nor
received any deposits, prepayments or advance payments under the Hardware
Equipment Leases from any lessee thereunder. Steadi is not in material
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breach or default under the terms of any Hardware Equipment Lease, and to the
best of Steadi's knowledge, no other party to any Hardware Equipment Lease is in
material breach or default thereunder.
6.8. BROKERS. No broker, finder or investment banker is entitled to any
brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Steadi.
6.9. FULL DISCLOSURE. No representation or warranty of Steadi in this
Agreement, or any Schedules hereto, or any certificate furnished to VTP pursuant
to this Agreement, contains any untrue statement of a material fact, or omits to
state a material fact necessary to make the statements contained herein or
therein not misleading.
6.10. PURCHASE FOR RESALE. Steadi is purchasing the Tape Inventory for
resale and will provide to VTP a resale certificate upon request.
6.11. LITIGATION. There are no Actions pending or, to Steadi's
knowledge, threatened, against Steadi and which relate to the Hardware Business.
Neither Steadi, nor any of its assets or properties, is subject to any
Governmental Order (nor, to the knowledge of Steadi, are there any such
Governmental Orders threatened to be imposed by any Governmental Authority)
which has had or would have a Material Adverse Effect. For purposes of this
Article VI, the phrase "to the best of Steadi's knowledge" and similar terms
shall mean the actual knowledge of Xxx Xxxxxx and Xxxxxxx Xxxxxxxx.
6.12. COMPLIANCE WITH LAWS. To the best of Steadi's knowledge, Steadi
has conducted the Hardware Business in all material respects in accordance with
all applicable laws, ordinances, statutes, rules, regulations and Governmental
Orders applicable to it or any of its properties or assets, and Steadi is not in
violation of any such law, ordinance, statute, rule, regulation or Governmental
Order. In conducting the Hardware Business, neither Steadi nor any officer,
director, employee, agent or representative of Steadi has violated or is
currently in violation of the Foreign Corrupt Practices Act of 1977, as amended.
6.13. CUSTOMERS. Steadi has delivered to VTP a true, correct and
complete list of the names of the top 20 customers of the Hardware Business (by
revenue) during the period from March 1, 1998 to March 18, 1999. Except as set
forth on Schedule 6.13, to the best of Steadi's knowledge, Steadi has not
received any oral or written notice that any of such customers has ceased, or
will cease, to use the products, equipment, goods or services of Steadi, or has
substantially reduced, or will substantially reduce, the use of such products,
equipment, goods or services following the Closing Date.
ARTICLE VII
ACTIONS TO BE TAKEN POST-CLOSING
7.1. COLLECTION OF ACCOUNTS RECEIVABLE. Each party shall (i) be
permitted to retain copies of current customer files and records for the sole
purpose of collecting all accounts
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receivable owing from such customers and (ii) during the 90 day period following
the Closing, provide reasonable cooperation and assistance to the other party in
collecting such accounts receivable.
7.2. INVENTORY RETURNS. During the 90 day period following the Closing:
(a) Steadi shall purchase from VTP all Tape Inventory which is
(i) approved by Steadi for return and purchase hereunder, (ii) returned by VTP
customers to VTP during such period, (iii) not visibly damaged or defective,
(iv) not in excess of the amounts set forth for certain products as set forth on
Schedule 2.1(b) and (v) included in the list of products set forth on Schedule
2.1(b). The purchase price for such inventory shall be based upon the product
prices (net of vendor rebates) set forth on Schedule 2.1(b) and shall be paid
within ten (10) days following the delivery thereof to the Steadi location to be
designated by Steadi. All shipping and delivery costs (and all risk of loss in
transit) shall be borne by Steadi.
(b) VTP shall purchase from Steadi all Hardware Inventory
which is (i) approved by VTP for return and purchase hereunder, (ii) returned by
Steadi customers to Steadi during such period, (iii) not visibly damaged or
defective and (iv) included in the list of products set forth on Schedule
3.1(c). The purchase price for such inventory shall be based upon the product
prices set forth in Schedule 3.1(c) and shall be paid within ten (10) days
following the delivery thereof to the VTP location to the designated by VTP. All
shipping and delivery costs (and all risk of loss in transit) shall be borne by
VTP.
(c) All credits and refunds to customers (i) in respect of the
returned Tape Inventory shall be the responsibility of VTP and (ii) in respect
of the returned Hardware Inventory shall be the responsibility of Steadi.
(d) Steadi and VTP will cooperate with each other and use good
faith efforts to reach a mutually satisfactory agreement regarding the Excluded
Tape Inventory which is to be returned to the manufacturer.
ARTICLE VIII
INDEMNIFICATION
8.1. INDEMNIFICATION BY VTP AND THE STOCKHOLDERS. From and after the
Closing, VTP and the Stockholders shall, jointly and severally, but subject to
the limitations hereof, reimburse, indemnify and hold harmless Steadi and its
officers, directors, employees, agents, representatives and successors and
assigns from and against and in respect of each of the following:
(a) any and all damages, losses, deficiencies, liabilities,
claims, demands, charges, costs and expenses of every nature and character
whatsoever, including, without limitation, reasonable attorneys' fees and costs
(collectively, the "LOSSES") that result from, relate to or arise out of (i) the
Retained Tape Liabilities, (ii) any failure by VTP to pay or discharge when due
the Assumed Hardware Liabilities or (iii) any misrepresentation or breach of
warranty or covenant of VTP or the Stockholders in this Agreement, or any of the
Schedules provided by VTP hereunder or any agreement, document, statement, list,
certificate or instrument furnished by or on behalf of VTP or the Stockholder or
any of
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them in connection with the negotiation, execution or performance of this
Agreement and the transactions contemplated herein; and
(b) any and all actions, suits, claims, proceedings,
investigations, demands, assessments, audits, fines, judgments, costs and other
expenses incident to any of the foregoing or to the successful enforcement of
this Section.
8.2. INDEMNIFICATION OF VTP AND THE STOCKHOLDERS. From and after the
Closing, Steadi and Daisytek, jointly and severally, shall, subject to the
limitations hereof, reimburse, indemnify and hold harmless VTP and the
Stockholders and each of their respective officers, directors, employees,
agents, representatives and heirs, estate, successors and assigns from and
against and in respect of each of the following:
(a) any and all Losses that result from, relate to or arise
out of (i) the Retained Hardware Liabilities or (ii) any misrepresentation or
breach of warranty or covenant of Steadi in this Agreement or any of the
Schedules provided by Steadi hereunder or any agreement, document, statement,
list, certificate or instrument furnished by or on behalf of Steadi in
connection with the negotiation, execution or performance of this Agreement and
the transactions contemplated herein; and
(b) any and all actions, suits, claims, proceedings,
investigations, demands, assessments, audits, fines, judgments, costs and other
expenses incident to any of the foregoing or to the successful enforcement of
this Section.
8.3. LIMITATIONS ON LOSSES.
(a) In case any event shall occur that would otherwise entitle
any party to assert a claim for indemnification hereunder, no Losses shall be
deemed to have been sustained by such party to the extent of (i) any actual tax
savings realized by such party with respect thereto or (ii) any proceeds (net of
deductibles, taxes and collection costs) received by such party from any
insurance policies maintained by or on behalf of such party with respect to such
Losses. The parties agree to submit a claim under such insurance policies prior
to or promptly following making a request for indemnification hereunder.
(b) The aggregate liability of VTP and the Stockholders shall
not exceed the Tape Purchase Price and the aggregate liability of Steadi and
Daisytek shall not exceed the Hardware Purchase Price.
(c) The sum of all Losses incurred by an Indemnified Party
must exceed $25,000 before such party shall be entitled to indemnification
hereunder; provided, however, once such Losses exceed $25,000, such party shall
be entitled to indemnification for all Losses, including the first $25,000.
(d) No party shall have any liability hereunder in respect of
claims (excluding Third Party Claims, as defined below) asserted against any
Indemnified Party on or after one year from the Closing Date; provided, however,
the representations and warranties of each party relating to title to the assets
being sold by it hereunder shall survive indefinitely. The limitation set forth
in this paragraph shall not apply to any claim asserted in writing on or before
such one year anniversary.
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(e) The limitations set forth herein shall not apply in the
case of a fraudulent or intentional misrepresentation or breach by any party.
8.4. NOTICE.
(a) Promptly after receipt by an Indemnified Party of notice
of the assertion of any claim by a Person not a party to this Agreement (a
"THIRD PARTY CLAIM") with respect to which such Indemnified Party expects to
make a request for indemnification hereunder, such Indemnified Party shall give
the Indemnifying Party written notice describing such claim in reasonable
detail. The Indemnifying Party shall, upon receipt of such notice, be entitled
to participate in or, at the Indemnifying Party's option, assume the defense,
appeal or settlement of, such claim with respect to which such indemnity has
been invoked with counsel selected by it and approved by the Indemnified Party
(such approval not to be unreasonably withheld), and the Indemnified Party will
fully cooperate with the Indemnifying Party in connection therewith; provided,
that the Indemnified Party shall be entitled to employ separate counsel (at the
expense of the Indemnifying Party) to represent such Indemnified Party if
counsel selected by the Indemnifying Party cannot, by reason of any actual or
deemed conflict of interest, adequately represent the interests of the
Indemnified Party. In the event that the Indemnifying Party fails to assume the
defense, appeal or settlement of such claim within 20 days after receipt of
notice thereof from the Indemnified Party, the Indemnified Party shall have the
right to undertake the defense or appeal of, or settle or compromise, such claim
on behalf of and for the account and risk of the Indemnifying Party. The
Indemnifying Party shall not settle or compromise any such claim without the
Indemnified Party's prior written consent, unless the terms of such settlement
or compromise release the Indemnified Party from any and all liabilities with
respect to such Third Party Claim.
(b) Any indemnifiable claim that is not a Third Party Claim
shall be asserted by written notice to the Indemnifying Party. If the
Indemnifying Party does not respond to such notice within 30 days, it shall have
no further right to contest the validity of such claim.
8.5. SURVIVAL; EXCLUSIVE REMEDY. Notwithstanding any right of any party
to fully investigate the affairs of the other party and notwithstanding any
knowledge of facts determined or determinable by such party pursuant to such
investigation or right of investigation, each party has the right to rely fully
upon the representations, warranties, covenants and agreements of each other
party in this Agreement or in any certificate, financial statement or other
document delivered by any party pursuant hereto. All such representations,
warranties, covenants and agreements shall survive the execution and delivery
hereof and the Closing hereunder, subject to the limitations set forth herein.
No person shall have a right to recovery against any party (or any officer,
director, employee or agent of a party) other than through the exercise of the
indemnification rights set forth herein, which shall constitute the sole and
exclusive remedy after the Closing for any breach by a party of any
representation, warranty or covenant contained herein or in any certificate or
other instrument delivered pursuant hereto, other than a fraudulent or
intentional breach, as to which each party shall have all rights and remedies
available at law or in equity.
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ARTICLE IX
MISCELLANEOUS
9.1. COVENANT OF FURTHER ASSURANCES. The parties hereto covenant and
agree to execute and deliver any and all additional writings, instruments and
other documents and take such further actions as shall be reasonably required or
requested to effectuate the terms and conditions of this Agreement.
9.2. ENTIRE AGREEMENT. This Agreement and the Strategic Alliance
Agreement and the other agreements and instruments described herein represent
the entire agreements between the parties hereto and thereto with respect to the
subject matter hereof and thereof, and supersede all prior agreements and
communications with respect thereto.
9.3. ASSIGNMENT AND BINDING EFFECT. Neither this Agreement nor any
rights or obligations hereunder may be assigned by any party hereto without the
express written consent of the others and any attempted assignment in violation
thereof shall be null and void; provided, however, that the rights of Steadi
hereunder may be assigned to any Affiliate of Daisytek. In addition, title to
any or all of the Tape Assets may be taken in the name of any Affiliate of
Daisytek. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. Nothing in
this Agreement, express or implied, is intended to confer on any Person other
than the parties hereto or their respective successors or permitted assigns or
the Indemnified Parties (who shall be deemed third party beneficiaries hereof)
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
9.4. AMENDMENT OR MODIFICATION. This Agreement may not be waived,
amended, modified or supplemented by the parties hereto in any manner, except by
an instrument in writing signed by VTP and Steadi.
9.5. SEVERABILITY. If any provision of this Agreement shall be
determined by a court of competent jurisdiction to be invalid or unenforceable,
such determination shall not affect the remaining provisions of this Agreement,
all of which shall remain in full force and effect, nor shall it affect their
validity or enforceability in any other jurisdiction. To the extent permitted by
law, each party hereto waives any provision of law which renders any provision
hereof unenforceable in any respect.
9.6. NOTICES. All notices, requests, demands or other communications
under or with respect to this Agreement shall be in writing and shall be given
by hand, by telecopy with request for acknowledgment or confirmation of receipt,
by Federal Express or other nationally recognized overnight delivery service
providing for receipt against delivery (delivery charges prepaid) or by
certified or registered U.S. Mail, postage prepaid, return receipt requested,
and shall be deemed to have been duly given and effective upon the earlier of
(i) its actual receipt (or acknowledgment or confirmation of receipt), (ii) the
next business day after having been sent by Federal Express or similar
nationally recognized overnight delivery service providing for receipt against
delivery, delivery charges prepaid, or (iii) three days after having been sent
by certified or registered U.S. mail, return receipt requested, postage prepaid,
addressed as follows:
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If to VTP:
Videotape Products, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
Telecopier: 000-000-0000
- with a copy to -
Xxxx & Xxxx
000 X. Xxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxx, Esq.
Telecopier: 000-000-0000
If to Steadi:
Steadi Systems, Ltd.
c/o Daisytek Incorporated
000 Xxxxx Xxxxxxx Xxxxxxxxxx
Xxxxx, XX 00000
Attention: Xxx Xxxxxx
Telecopier: 000-000-0000
- with a copy to -
Xxxxx & Samson, P.A.
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxxxxx, Esq.
Telecopier: 000-000-0000
Any such Person by written notice to each of the others listed in this Section
in accordance herewith may change the address to which notices may be directed,
but such notice shall be deemed duly given and effective only upon actual
receipt thereof.
9.7. WAIVERS AND EXTENSIONS. Any waiver by any party hereto of any
provision or condition of this Agreement or breach thereof or any extension of
time granted by any party under this Agreement shall not be construed or deemed
to be a waiver of any other provision or condition of this Agreement or breach
thereof or extension of time with respect thereto or a waiver of a subsequent
breach of or subsequent extension of time with respect to same provision or
condition.
9.8. GOVERNING LAW. This Agreement shall be governed by, and be
construed in accordance with, the laws of the State of California without regard
to the conflicts of laws principles thereof.
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9.9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement but
all of which taken together shall constitute one and the same instrument.
9.10. CAPTIONS AND HEADINGS. The captions, section and other headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
9.11. EXHIBITS AND SCHEDULES. All Exhibits annexed hereto, and all
Schedules referred to herein, are hereby incorporated in and made a part of this
Agreement as if set forth herein.
9.12. CONSTRUCTION. The parties hereto hereby acknowledge and agree
that they and their respective counsel have independently reviewed and made
amendments to this Agreement and that the normal rule of construction, whereby
ambiguities are to be resolved against the drafting party, shall be inapplicable
to this Agreement.
9.13. PUBLICITY. Except as otherwise required by applicable laws or
regulations, no party hereto nor any Affiliate thereof, shall issue any press
release or make any other public statement regarding the transactions described
in this Agreement without obtaining the prior approval of the
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other parties hereto to the contents and the manner of presentation and
publication thereof, such consent not to be unreasonably delayed or withheld.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
STEADI-SYSTEMS, LTD.
By: /s/ Xxx Xxxxxx
-----------------------------------
Name: Xxx Xxxxxx
Title: Vice President-Finance
DAISYTEK, INC.
By: /s/ Xxx Xxxxxx
-----------------------------------
Name: Xxx Xxxxxx
Title: Vice President-Finance
VIDEOTAPE PRODUCTS, INC.
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxxxx
Title: President
STOCKHOLDERS:
/s/ Xxxx Xxxxxxxxx
--------------------------------------
XXXX XXXXXXXXX
/s/ Xxxxxxx Xxxxxx
--------------------------------------
XXXXXXX XXXXXX
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SCHEDULES TO ASSET PURCHASE AGREEMENT
Schedule 2.1(a) - list of telephone and fax numbers to be transferred
Schedule 2.1(b) - list of VTP inventory by product (with maximum amounts)
Schedule 2.3(b) - list of Tape inventory locations
Schedule 3.1(a) - list of Steadi unfilled customer orders and deposits
Schedule 3.1(c) - list of Hardware inventory by product
Schedule 3.3(b) - list of Hardware inventory locations
Schedule 4.4(i) - list of Tape Employees
Schedule 4.4(ii) - list of Hardware Employees
Schedule 5.5 - list of Tape financial statements
Schedule 5.13 - list of Material Tape Contracts
Schedule 5.14 - list of non-continuing Tape customers
Schedule 6.13 - list of non-continuing Hardware customers
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