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Exhibit 10.1
CONTRIBUTION AGREEMENT
THIS CONTRIBUTION AGREEMENT (this "Agreement") is made as of the 20th
day of March, 2000 by and among Cooperative Holdings, Inc., a Delaware
corporation ("Holdings"), and the Xxxxx X. Xxxxxxxx 1996 Family Limited
Partnership, the Xxxxxxx X. Xxxxxxxx 1996 Family Limited Partnership and Xxxxx
X. Xxxxxxxx, Xx. (collectively, the "Members").
BACKGROUND
WHEREAS, the Members own all of the issued and outstanding shares of
Common Stock of Holdings and all of the issued and outstanding membership
interests ("Membership Interests") of Eastern Computer Services, LLC
("Eastern"); and
WHEREAS, the Members desire to transfer, contribute and convey to
Holdings, and Holdings desires to accept and receive from the Members, all of
their membership interests in Eastern so that Eastern shall be a wholly-owned
subsidiary of Holdings;
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises and covenants contained in this Agreement, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Contribution of Membership Interests. Subject to the terms and
conditions contained herein, each Member hereby contributes, transfers and
conveys to Holdings, free and clear of all security interests, pledges, liens,
encumbrances, charges or claims of any kind, (collectively, "Liens"), all
rights, title and interest in its respective Membership Interests as set forth
on Schedule A attached hereto and made a part hereof (collectively, the
"Contributed Interests"). The Members each hereby acknowledge and agree that
they have transferred to Holdings all rights to their respective Contributed
Interests and hereby relinquish any claim to such interests. The Members each
acknowledge and agree that they have transferred to Holdings any and all rights
each has in that certain Operating Agreement, dated as of May 2, 1995, and
hereby relinquish any claim to any such rights or interests contained therein.
2. No Assumption of Liabilities. Holdings shall not assume any of the
liabilities of the Members and shall acquire the Contributed Interests free and
clear of all liens, mortgages, security interests, encumbrances and claims and
each of the Members, jointly and severally, represents, warrants and agrees that
Holdings shall not be or become liable for any claims, demands, liabilities or
obligations not expressly assumed in this Agreement of any kind whatsoever
arising out of or relating to the conduct of the Members or the Contributed
Interests prior to the date hereof and each Member shall hold Holdings harmless
for any such claims. Holdings shall not assume or agree to perform, pay or
discharge, and each of the Members shall remain unconditionally liable for, all
of their respective obligations, liabilities and commitments, fixed or
contingent.
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3. Representations and Warranties.
The Members, severally and not jointly, represent and warrant
to Holdings as follows:
(a) Requisite Power and Authority. Each of the Members has the
requisite power and authority to execute, deliver, and perform their respective
obligations under this Agreement and to contribute, transfer and convey to
Holdings their respective Contributed Interests. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary action (corporate
or otherwise) on the part of each of the Members. This Agreement constitutes the
legal, valid and binding obligation of each of the Members, enforceable in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium or similar laws affecting the
enforcement of creditors' rights generally.
(b) Title to Contributed Interests. Each Member is in
possession of and has good, valid and marketable title to, all of the
Contributed Interests in which it has interest. Schedule A sets forth complete
and correct list of each of the members of Eastern and each of the Membership
Interests held by each such member. There are no other equity holders of Eastern
other than as set forth on Schedule A. All of the Contributed Interests are held
by the Members free and clear of all Liens.
(c) Further Covenants and Assurances. Each Member further
agrees that, at any time or from time to time after the effectuation of this
Contribution Agreement, they will, upon the request of Holdings, do, execute,
acknowledge and deliver, or will cause to be done, executed, acknowledged or
delivered, all such further reasonable acts, assignments, transfers, powers of
attorney or assurances as may be required in order to further transfer, assign,
grant, assure and confirm to Holdings, of any of the Contributed Interests or to
vest in Holdings good and marketable title to the Contributed Interests.
(d) No Consents Required. No consent, approval, or
authorization of, or exemption by, or filing with, any governmental body or
other third party is required in connection with the execution, delivery and
performance of this Agreement, or the consummation of the transactions
contemplated hereby, as contemplated by the parties hereto.
(e) No Conflicts. The execution, delivery and performance of
this Contribution Agreement and the consummation of the transactions
contemplated hereby do not and will not, with or without the giving of notice or
the lapse of time or both, (i) violate any partnership agreement or other
organization document to which such holder is a party, (ii) violate any
provision of law of any judgment, order, writ or decree to which any Member is
subject, or (iii) result in the breach of or conflict with any term, covenant,
condition or provision of, result in the termination or modification of,
constitute a default under, or result in the creation of any Lien on any of the
Contributed Interests pursuant to, any contracts, rights, licenses, leases,
purchase or sale orders and any other agreements, arrangements, undertakings and
commitments to which any Member is a party or to which any of the Contributed
Interests is subject.
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(f) No Violation of Law. The Members' acquisition of the
Contributed Interests has not violated any federal, state, local or foreign law.
The Members have not received any notice of any violation of law concerning the
Contributed Interests nor to any of the Members' knowledge does any basis for
the allegation of any such violation exist.
(g) No Litigation. There is no claim, action, suit,
proceeding, arbitration, investigation or inquiry pending or adjudicated before
any federal, state, local or foreign court, or other governmental,
administrative or regulatory body, or any private arbitration tribunal or other
forum for private dispute resolution, or to the Members' knowledge threatened,
against, relating to or affecting the Contributed Interests, any right to use
the Contributed Interests, or the transactions contemplated by this Agreement,
nor to the Members' knowledge is there any basis therefor.
4. Miscellaneous.
(a) Successors and Assigns. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their respective
successors and permitted assigns. This Contribution Agreement may not be
assigned by either party hereto to any other person without the consent of the
other party hereto.
(b) No Third-Party Beneficiaries. Nothing expressed or implied
in this Agreement shall be construed to give any person or entity other than the
parties hereto any legal or equitable rights hereunder.
(c) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior or contemporaneous, negotiations, commitments, agreements
and understandings, oral or written.
(d) Amendment. This Agreement may not be amended except by an
instrument signed by the parties hereto.
(e) Severability. If any provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, such provision shall be deemed severable and all other provisions of
this Agreement shall nevertheless remain in full force and effect.
(f) Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
(g) Notices. All notices given in connection with this
Agreement shall be in writing. Service of such notices shall be deemed complete
(i) if hand delivered, on the date of delivery, (ii) if by mail, on the fourth
business day following the day of deposit in the United States mail, by
certified or registered mail, first-class postage prepaid, (iii) if sent for
overnight delivery by Federal Express or equivalent courier service, on the next
business day, or (iv) if by telecopier, upon receipt by the sender of written
confirmation of successful transmission. Such
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notices shall be addressed to the parties at the following addresses or at such
other address for a party as shall be specified by like notice (except that
notices of change of address shall be effective upon receipt):
If to the Members:
To each Member at the address set forth on the
signature page attached hereto.
If to Holdings:
Xxxxx X. Xxxxxxxx, Xx.
Cooperative Holdings, Inc.
000-000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx Ingersoll Professional Corporation
000 Xxxxxxx Xxxx Xxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
(h) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New Jersey, without
giving effect to the principles of conflict of laws thereof.
(i) Consent to Jurisdiction. The parties hereto consent to the
exclusive jurisdiction, venue and forum of any state or federal court in the
State of New Jersey with respect to any action which, in whole or in part,
arises under or relates to this Agreement.
(j) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties to this Contribution Agreement have
caused this Agreement to be duly executed as of the date first written above.
HOLDINGS:
COOPERATIVE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxxx, Xx.
Title: President
MEMBERS:
XXXXX X. XXXXXXXX 1996 FAMILY
LIMITED PARTNERSHIP
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
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Name: Xxxxx X. Xxxxxxxx, Xx.
Title: General Partner
Address:
THE XXXXXXX X. XXXXXXXX 1996
FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Co-General Partner
Address: 000 Xxxxx Xx.
Xxxxxx, XX 00000
/s/ Xxxxx X. Xxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxx, Xx.
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SCHEDULE A
MEMBERSHIP INTEREST OF EASTERN
COMPUTER SERVICES, LLC
Member Percentage of Ownership
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The Xxxxx X. Xxxxxxxx 1996 47.5
Family Limited Partnership
The Xxxxxxx X. Xxxxxxxx 1996 47.5
Family Limited Partnership
Xxxxx X. Xxxxxxxx, Xx. 5
