AGREEMENT REGARDING CERTAIN
CONTRACTS, RECEIVABLES AND PAYABLES
THIS AGREEMENT REGARDING CERTAIN CONTRACTS, RECEIVABLES
AND PAYABLES (the "Agreement") dated as of December 1, 1995, is
made and entered into by and between Acumenics Research &
Technology, Inc. ("Seller") and Xxxxx-Xxxxxxxx Incorporated
("Purchaser").
RECITALS
A. The parties hereto have entered into an Asset
Purchase Agreement dated as of December 1, 1995 (the "Purchase
Agreement") providing for the purchase by Purchaser of
substantially all of Seller's assets (other than accounts
receivable).
B. Purchaser wishes to acquire from Seller and Seller
wishes to transfer to Purchaser, pursuant to the terms of the
Purchase Agreement, the Seller's obligations and benefits under
Contract No. 3C-G-ENR-0052, including Option Periods thereunder,
(the "Contract") through the novation process set forth in FAR
42.1201 et. seq. and assign certain subcontracts with third
parties which are listed on the attached Schedule A as provided
therein (the "Subcontracts").
C. The parties hereto will not have obtained all
necessary approvals of the novation of the Contract by the
Government or the necessary consents to the purchase and
assignment of the Subcontracts prior to the effective date hereof
(the "Closing Date").
D. The parties hereto wish to provide for the
transition administration of such contracts after the Closing
Date.
E. The parties hereto also wish to provide for
orderly settlement and allocation of accounts receivable and
accounts payable with respect to periods before and after the
Closing Date;
NOW, THEREFORE, in consideration of the mutual
agreements set forth herein, the parties hereto agree as follows:
1. General Provisions Regarding Contracts.
1.1 From and after the Closing Date, Purchaser shall
perform any and all services and make any payments required to be
performed or paid as required under the Contract and
Subcontracts. Seller hereby authorizes Purchaser to act on its
behalf and, as necessary, in its name, for purposes of carrying
out these services and making these payments.
1.2 Purchaser shall assume all obligations or
liabilities under the Subcontracts arising on or after the
Closing Date, and Seller shall retain all such obligations and
liabilities arising before the Closing Date.
1.3 Retention of Books and Records. For a period of
seven years after the date hereof, the parties shall retain their
books or records relating to the Contract and Subcontracts, and
shall provide each other access, during regular business hours
and upon reasonable prior notice, to all such records.
2. Novation of Contract.
2.1 The parties hereto shall take all other
appropriate actions and execute and furnish all documents,
instruments or conveyances of any kind that may be necessary or
reasonably advisable to carry out the novation of the Contract,
as soon as possible after they become necessary or reasonably
advisable (it being the intent of the parties, among other
things, that the novation of the Contract occur as soon as
possible after the Closing Date), including insuring that all
steps are taken and all financial and other information is
delivered and filed with the United States Government
("Government") in order to effect novation to Purchaser of the
Contract. Such actions shall include, without limitation, all
actions required to be taken under 42 C.F.R. Subpart 42.12 or any
successor provision and the execution of a novation agreement in
the form specified therein, or as modified with the consent of
all of the parties thereto.
3. Subcontracts
The parties hereto shall take all appropriate action to
assign the Subcontracts prior to the novation of the Contract.
4. Invoicing and Payments under the Contract.
4.1 Purchaser shall prepare and submit to the Seller
for review and approval, within two business days of the end of
each contract invoicing period, appropriate invoices in the name
of Seller under the Contract until such Contract has been novated
or assigned. Seller shall advise Purchaser of any information
necessary for invoice preparation and shall supply such
information in a timely fashion.
4.2 After the novation or assignment of the Contract,
Purchaser shall invoice the customer in its own name.
4.3 Contemporaneously with the Closing Date, Seller
shall execute and deliver to Purchaser a contract modification,
in substantially the same form as Attachment 1 hereto, addressed
to the relevant contracting officer and disbursing officer for
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the Contract, directing that all payments under invoices
beginning November 25, 1995 under the Contract should be made to
the following account and address:
Signet Bank/VA/GCLU
Assignee of Xxxxx-Xxxxxxxx, Inc.
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Fed ID # 54-00740037
ABA # 000000000
Seller agrees that it will take no further action to change the
payment address or wire instructions under the Contract unless
instructed to do so by Purchaser.
4.4 Any payment received by Seller for services
performed under the Contract after the Closing Date shall be
forwarded to Purchaser within 2 days of receipt. Seller shall
give Purchaser an accounting on a weekly basis of any payments
Seller receives for services after the Closing Date under the
Contract. Seller hereby authorizes Purchaser to endorse and
deposit any checks received with respect to any services
performed after the Closing Date into Purchaser's account.
4.5 Purchaser shall, on a weekly basis, give Seller an
accounting of all payments received with regard to the Contract
until it has been novated and shall forward to Seller within 2
days of receipt, at 0000 Xxx Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000 an
amount equal to all payments under the Contract with respect to
services performed by Seller prior to the Closing Date.
4.6 For the period of November 25, 1995 through
November 30, 1995, Seller shall prepare the appropriate invoice
for inclusion by Purchaser in the December invoice of the
government under the contract. Purchaser acknowledges that
payment for services received on such invoice will include
services rendered by Seller, and shall forward to Seller payment
for such services within 2 days of receipt of payment from the
customer. Seller and Purchaser shall cooperate in preparing and
agreeing on a reconciliation of amounts due Seller and Purchaser
for such invoice.
4.7 The Contract provides for labor and pricing
adjustments, which may be done retroactively by the Government.
Upon such adjustment, Purchaser shall notify Seller, and the
parties shall cooperate in determination of the appropriate
amount to be billed under the Contract taking into account the
adjustment. Purchaser shall invoice the Government promptly for
any excess wages found to be due under a wage determination by
the Government for the wages and fees. Seller will provide
Purchaser with an invoice, for consulting fees, and Purchaser
shall forward to Seller, payment for such services within 2 days
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of receipt of payment from the Government, including the fees due
thereunder, if accepted and paid by Government. Seller shall pay
its former employees. Purchaser will cooperate with Seller in
providing current addresses for these employees.
5. Amendments Prior to Novation; Disputes; Claims.
5.1 Prior to the execution of a consent by the
Government for the novation agreement among Purchaser, Seller,
and the Government, Seller agrees that it shall not request,
propose, agree to and/or consent to any amendment, modification,
(except as to place of payment) supplement, termination,
extension, abandonment, suspension of and/or any other change in
or to the Contract (together, an "Amendment") without the prior
written consent of Purchaser. Seller hereby authorizes
Purchaser, in Seller's name, to request, propose, agree to and/or
consent to all such Amendments.
5.2 If, prior to the date of novation of the Contract
a dispute or objection arises with the customer relating to such
Contract (a "Dispute") relating to payments for services
performed on or after the Closing Date, or if Purchaser believes
that there is a basis for asserting a claim against the customer
under the Contract, Seller shall cooperate with Purchaser to the
extent necessary to permit Purchaser, at Purchaser's expense and
in Seller's name, to submit, prosecute, respond to, settle,
compromise or otherwise resolve such claim or Dispute, at
Purchaser's discretion.
5.3 If, at any time, a Dispute arises with the
customer relating to payments for work performed on or prior to
the Closing Date, or if Seller believes that there is a basis for
asserting a claim against the customer under the Contract for
such payment, Purchaser shall cooperate with Seller to the extent
necessary to permit Seller, at Seller's expense, to submit,
prosecute, respond to, settle, compromise or otherwise resolve
such claim or Dispute in its own name. To the Seller's
knowledge, no such claims or disputes are known to the Seller as
of the date hereof.
5.4 Nothing herein shall limit Purchaser's right,
following novation of the Contract, to submit, prosecute, respond
to, settle, compromise or otherwise resolve claims or Disputes
relating to such Contract.
6. Performance by Seller following the Closing Date.
6.1 Seller shall have performed services and delivered
goods under the Contract following the Closing Date. Seller
agrees to prepare an invoice reflecting such performance and
deliveries, and Purchaser agrees to pay Seller for such goods and
services at Closing, or as soon thereafter as practicable.
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7. Invoicing and Payment under the Subcontracts.
7.1 All amounts payable under the Subcontracts for
services and goods incurred prior to the Closing Date and
invoiced to the Government prior to the Closing Date shall be
paid by Seller. All amounts payable under the Subcontracts for
services and goods incurred prior to the Closing Date but not yet
invoiced to the Government, and those from the Closing Date of
the Agreement shall be payable by Seller following receipt of
payment from Purchaser out of funds paid on invoices to the
Government under the Contract as provided in Section 4.3.
7.2 Seller shall forward to Purchaser all invoices
received under the Subcontracts for services and goods incurred
prior to the Closing Date but not yet invoiced to the Government
and those delivered after the Closing Date following receipt of
payment from Purchaser. Seller agrees to pay all such invoices,
in Seller's name, in accordance with the terms of the respective
Subcontract, Purchaser shall pay to Seller a fee of 10% of each
such invoice for its services in consulting.
8. Power of Attorney.
Seller hereby appoints Purchaser and its successors and
assigns, as the attorney-in-fact, with full power of
substitution, of Seller, for the purpose of carrying out the
provisions set forth in this Agreement and taking any action and
executing any instruments that such attorney-in-fact may deem
necessary or advisable to accomplish the purposes thereof, which
appointments are coupled with an interest and are irrevocable.
9. Assumption of Liabilities; Indemnity.
9.1 By the terms of the Asset Purchase Agreement the
Purchaser has assumed all of the liabilities of the Seller
relating to the Contract and the performance thereunder. Seller
shall indemnify, defend and hold harmless the Purchaser and
Purchaser's shareholders, directors, officers, employees and
agents, and their respective heirs, administrators, successors
and assigns (collectively, "Indemnified Parties") of each of the
foregoing, from, against and in respect of any and all losses,
liabilities, judgments, fines, penalties, assessments,
settlements, damages, costs or expenses including, without
limitation, reasonable costs of investigation, reasonable
attorney's fees and other reasonable legal costs and expenses
incident to any of the foregoing or to the enforcement of this
provision ("Losses") relating or in any way connected to the
Contract, its performance, those employed thereunder or any
matter related thereto for the time period prior to the Closing,
or resulting from or incident to Seller's acts or omissions in
connection with the performance of the Subcontracts prior to the
Closing, or of this Agreement after the Closing.
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9.2 The indemnifications provided herein shall apply
to all matters relating to the Contract without limitation as to
time.
9.3 Purchaser shall indemnify Seller, and its
Indemnified Parties, for any Losses relating or in any way
connected to the Contract, its performance, those employed
thereunder or any matter related thereto for the time period from
and after the Closing, or resulting from or incident to
Purchaser's acts or omissions in connection with the performance
of this Agreement and the Subcontracts from and after the Closing
Date.
9.4 The indemnification obligations shall survive the
Closing Date, shall survive the novation agreement with respect
to the Contract, and shall survive the assignment of the
Subcontracts.
10. Miscellaneous
10.1 All notices and other communications required or
permitted to be given by this Agreement shall be in writing and
shall be deemed duly given (a) one Business Day after delivery,
if delivered personally, (b) seven Business Days after posting,
if mailed by registered or certified first class mail (return
receipt requested) or (c) one Business Day after dispatch, if
sent by telefax (with a confirmatory mailing as provided in (b)
by the sender) to the parties at the following addresses (or at
such other address for the party as shall be specified by like
notice):
(i) If to Seller to:
Acumenics Research & Technology, Inc.
c/o Hadron, Inc.
0000 Xxx Xxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: S. Xxxxx Xxxxxx
Secretary
Telefax No: (000) 000-0000
with a copy to:
McGuire, Woods, Battle & Xxxxxx, L.L.P.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx
Telefax No: (000) 000-0000
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(ii) If to Purchaser to:
Xxxxx-Xxxxxxxx Incorporated
0000 Xxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxxx
President
Telefax No: (000) 000-0000
with a copy to:
Leonard, Ralston, Xxxxxxx & Remington
0000 Xxxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx X. Xxxxxxx, Xx.
Telefax No: (000) 000-0000
Rejection or other refusal to accept, or the inability
to deliver because of a changed address of which no notice was
given, shall not affect the date of such notice sent in
accordance with the foregoing provisions.
10.2 The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or
interpretation of this Agreement. Unless the context otherwise
requires as used herein, words in the singular shall include
words in the plural and vice versa, and words in one gender shall
include words in the other gender.
10.3 This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
10.4 This Agreement shall be binding upon and inure to
the benefit of the parties hereto, and their respective
successors and permitted assigns, and the provisions of Article
IX shall inure to the benefit of the indemnified parties referred
to therein; provided, however, that neither this Agreement nor
any of the rights, interests or obligations hereunder may be
assigned by any of the parties hereto without the prior written
consent of the other parties.
10.5 This Agreement, Asset Purchase Agreement, and
Articles of Transfer constitute the entire agreement and
supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the
transactions contemplated hereby. There are no restrictions,
agreements, promises, warranties, covenants or undertakings with
respect to the transactions contemplated hereby other than those
expressly set forth therein. This Agreement, the exhibits
hereto, the Seller Disclosure Schedule and the Purchaser
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Disclosure Schedule may be amended only by a writing signed by
Seller and Purchaser. To the extent there is any inconsistency
in the documents, the Asset Purchase Agreement shall control.
10.6 This Agreement shall be governed in all respects
by the laws of the Commonwealth of Virginia without regard to its
laws or regulations relating to conflicts of laws.
10.7 This Agreement is not intended to and shall not
violate FAR 42.1201 et. seq., and confer upon any other entity,
other than the parties hereto, any rights or remedies with
respect to the subject matter hereof.
10.8 If any one or more of the provisions of this
Agreement shall be held to be invalid, illegal or unenforceable,
the validity, legality or enforceability of the remaining
provisions of this Agreement shall not be affected thereby. To
the extent permitted by applicable law, each party waives any
provision of law which renders any provision of this Agreement
invalid, illegal or unenforceable.
10.9 Each of the Purchaser and Seller agrees to take
any and all further actions reasonably requested of it by the
other party after the Closing Date to effectuate the novation and
this Agreement.
10.10 This Agreement shall terminate upon the
termination of the Contract except that the following provisions
shall survive termination: Sections 4.4, 4.7, 5.2, 9.1, 9.2,
9.3, and 9.4.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and their corporate seals to be hereto
affixed and attested by their duly authorized officers.
XXXXX-XXXXXXXX INCORPORATED
Corporate Seal: By: /S/ Xxxxxx X. Xxxxxxxxxx
____________________________
Attest: Xxxxxx X. Xxxxxxxxxx, President
/S/ Xxxxx Xxxxxxxxxx
________________________
Secretary
ACUMENICS RESEARCH & TECHNOLOGY,
INC.
Corporate Seal: By: /S/ Xxxxxx X. Xxxxxx
_____________________________________
Attest: Xxxxxx X. Xxxxxx, Acting President
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/S/ S. Xxxxx Xxxxxx
________________________
Secretary
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Agreement Regarding Certain Contracts/Subcontracts
Schedule A
The following is a list of "sub-contracts" for
Acumenics:
1. Consultant Agreement between Xxxxxx X. Xxxxxxxx
and Acumenics dated October 22, 1995.
2. Consultant Agreement between Xxxxxxxx X. Xxxxx and
Acumenics dated November 3, 1995.
3. Consultant Agreement between Xxxx X. Xxxx, Xx. and
Acumenics dated March 23, 1995.
4. Consultant Agreement between Xxxxxxxx X. Xxxx and
Acumenics dated July 10, 1995.
5. Consultant Agreement between Xxxxxxx X. Xxxxxx and
Acumenics dated October 1, 1995.
6. Consultant Agreement between Xxxxxxx X. Xxxxxxx,
Ph.D. and Acumenics dated October 1, 1995.
7. Memorandum agreement between Acumenics and J.
Xxxxxx Xxxxx dated July 27, 1995 regarding market lead generation
activity and compensation.
8. Subcontract Agreement between Acumenics and
Infobahn, Inc. dated August 24, 1995.
9. Consultant Agreement between Xxxxxxx X. Xxxxx and
Acumenics dated October 1, 1995.
10. Consultant Agreement between Xxxxxx X. Xxxx and
Acumenics dated March 23, 1995.
11. Consultant Agreement between Xxxxx X. Xxxxxxx, dba
REAL Solutions and Acumenics dated October 1, 1995.
12. Consultant Agreement between Xxxxxxxx X. Xxxxx and
Acumenics dated March 10, 1994.
13. Equipment and Software Purchase Agreement between
Acumenics and Softmatic Corporation dated June 1, 1995.
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