ASSET PURCHASE AGREEMENT
BETWEEN
XXXXX-XXXXXXXX INCORPORATED
AND
ACUMENICS RESEARCH & TECHNOLOGY, INC.
Dated as of December 1, 1995
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS . . . . . . . . . . . 1
1.1 Definitions . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II
PURCHASE AND SALE OF ASSETS . . . . . . . 3
2.1 Purchased Assets . . . . . . . . . . . . . . . . . 3
2.2 Assumed Liabilities . . . . . . . . . . . . . . . . 4
2.3 Purchase Price . . . . . . . . . . . . . . . . . . 5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER . . . . 5
3.1 Organization; Qualification . . . . . . . . . . . . 5
3.2 Authority . . . . . . . . . . . . . . . . . . . . . 5
3.3 Consents and Approvals . . . . . . . . . . . . . . 5
3.4 Non-Contravention . . . . . . . . . . . . . . . . . 6
3.5 Licenses and Permits . . . . . . . . . . . . . . . 6
3.6 Compliance with Laws . . . . . . . . . . . . . . . 6
3.7 Tax Matters . . . . . . . . . . . . . . . . . . . . 6
3.8 Litigation . . . . . . . . . . . . . . . . . . . . 7
3.9 Title to and Condition of Properties;
Sufficiency. . . . . . . . . . . . . . . . . . . . 7
3.10 Leases . . . . . . . . . . . . . . . . . . . . . . 7
3.11 Intellectual Property . . . . . . . . . . . . . . . 8
3.12 Seller Agreements . . . . . . . . . . . . . . . . . 8
3.13 Employee Benefit Plans; Unions. . . . . . . . . . . 8
3.14 Certain Transactions . . . . . . . . . . . . . . . 9
3.15 Finders . . . . . . . . . . . . . . . . . . . . . . 9
3.16 Disclosure . . . . . . . . . . . . . . . . . . . . 9
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER . . . 10
4.1 Organization; Qualification . . . . . . . . . . . . 10
4.2 Authority . . . . . . . . . . . . . . . . . . . . . 10
4.3 Consents and Approvals . . . . . . . . . . . . . . 10
4.4 Non-Contravention . . . . . . . . . . . . . . . . . 10
4.5 Litigation . . . . . . . . . . . . . . . . . . . . 11
4.6 Finders . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V
ADDITIONAL AGREEMENTS . . . . . . . . . 11
5.1 Proration of Lease Payments and Other Payments . . 11
5.2 Allocation of Purchase Price . . . . . . . . . . . 11
5.3 Materials Received After the Date Hereof;
Cooperation . . . . . . . . . . . . . . . . . . . . 12
5.4 Expenses . . . . . . . . . . . . . . . . . . . . . 12
5.5 Public Announcements . . . . . . . . . . . . . . . 12
5.6 Further Assurances . . . . . . . . . . . . . . . . 12
5.7 Consent to Assignment of Leases and Seller
Agreements . . . . . . . . . . . . . . . . . . . . 12
5.8 Change of Seller's Name . . . . . . . . . . . . . . 12
5.9 Covenant not to Compete . . . . . . . . . . . . . . 13
5.10 Confidentiality . . . . . . . . . . . . . . . . . . 13
ARTICLE VI
EMPLOYEES AND EMPLOYEE MATTERS . . . . . . 14
6.1 Employees . . . . . . . . . . . . . . . . . . . . . 14
6.2 Employee Benefit Plans. . . . . . . . . . . . . . . 14
6.3 Worker's Compensation . . . . . . . . . . . . . . . 15
6.4 Administration . . . . . . . . . . . . . . . . . . 15
ARTICLE VII
INDEMNIFICATION . . . . . . . . . . 15
7.1 Indemnification by Seller . . . . . . . . . . . . . 15
7.2 Indemnification by Purchaser . . . . . . . . . . . 16
7.3 Third Party Claims . . . . . . . . . . . . . . . . 16
7.4 Recoveries . . . . . . . . . . . . . . . . . . . . 18
7.5 Limitations on Indemnification . . . . . . . . . . 19
7.6 Indemnification as Exclusive Remedy . . . . . . . . 19
7.7 Purchaser Indemnification Limitations . . . . . . . 19
7.8 Survival; Investigation . . . . . . . . . . . . . . 19
7.9 Applicability of Article VII to Certain
Provisions . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII
GENERAL PROVISIONS . . . . . . . . . 20
8.1 Notices . . . . . . . . . . . . . . . . . . . . . . 20
8.2 Interpretation . . . . . . . . . . . . . . . . . . 21
8.3 Counterparts . . . . . . . . . . . . . . . . . . . 21
8.4 Assignment . . . . . . . . . . . . . . . . . . . . 21
8.5 Entire Agreement; Amendment . . . . . . . . . . . . 21
8.6 Governing Law . . . . . . . . . . . . . . . . . . . 21
8.7 Benefits . . . . . . . . . . . . . . . . . . . . . 22
8.8 Severability . . . . . . . . . . . . . . . . . . . 22
Exhibit A - Escrow Agreement
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of
December 1, 1995 (the "Effective Date"), is made between Xxxxx-
Xxxxxxxx Incorporated, a Virginia corporation ("Purchaser"), and
Acumenics Research & Technology, Inc., a Maryland corporation
("Seller").
RECITAL
Seller desires to sell substantially all of its assets
(other than accounts receivable) and Purchaser desires to
purchase such assets, on the terms and conditions and for the
consideration hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and agreements herein contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. The following terms, as used herein,
have the following meanings:
"Assumed Liabilities" has the meaning set forth in Section
2.2.
"Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in Richmond, Virginia are
authorized or required by law to close. Whenever this Agreement
refers to a number of days, such number shall refer to calendar
days unless Business Days are specified.
"DOJ" has the meaning set forth in Section 2.1(b).
"DOJ Contract" has the meaning set forth in Section 2.1(b).
"Equipment" has the meaning set forth in Section 3.9(b).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Government" means any Federal, state, local or foreign
government, authority, agency, department, bureau, commission,
court or other body, officer, instrumentality or entity, and any
arbitrator with authority to bind a party at law.
"Intellectual Property" has the meaning set forth in Section
3.11.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
"Leases" has the meaning set forth in Section 3.10.
"Legal Action" has the meaning set forth in Section 7.3(b).
"Licenses and Permits" has the meaning set forth in Section
3.5.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plans" has the meaning set forth in Section
3.13(a).
"Person" means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any
other entity or organization, including a Government.
"Profits" means the summation of revenues less all expenses
excluding federal income taxes, in accordance with generally
accepted accounting principles.
"Purchase Price" has the meaning set forth in Section 2.3.
"Purchased Assets" has the meaning set forth in Section
2.1(a).
"Purchaser" has the meaning set forth at the head of this
Agreement.
"Purchaser Disclosure Schedule" has the meaning set forth in
the preamble to Article IV.
"Returns" has the meaning set forth in Section 3.7.
"Seller" has the meaning set forth at the head of this
Agreement.
"Seller Agreements" has the meaning set forth in Section
3.12.
"Seller Disclosure Schedule" has the meaning set forth in
the preamble to Article III.
"Survival Date" has the meaning set forth in Section 7.8(a).
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"Tax" means any fee (including license, filing and
registration fees), tax (including any income, value-added, gross
receipts, franchise, sales, use or real, personal, tangible or
intangible property tax), interest equalization or stamp tax,
assessment, levy, impost, duty, charge or withholding of any kind
or nature whatsoever, imposed or assessed by any Government,
together with any penalty, fine or interest thereon.
"Transferred Employees" has the meaning set forth in Section
6.1.
"Welfare Plans" has the meaning set forth in Section
3.13(a).
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 Purchased Assets.
(a) Subject to and upon the terms and conditions set
forth in this Agreement, Seller hereby sells, transfers, conveys,
assigns and delivers to Purchaser, and Purchaser purchases or
acquires from Seller, all right, title and interest of Seller in
and to the assets listed on Schedule 2.1 hereto (collectively,
the "Purchased Assets"). Seller will retain and not transfer,
and Purchaser will not purchase or acquire, assets not listed on
Schedule 2.1.
(b) Seller wishes the United States Government to
recognize Purchaser as a successor in interest to Government
Contract No. 3C-G-ENR-0052 for litigation support services (the
"DOJ Contract") for the Environment and Natural Resources
Division of the United States Department of Justice (the "DOJ").
It is the intent of the parties that this Agreement fully comply
with the requirements of FAR 42.1200 et seq. to permit a novation
of the DOJ Contract, and the parties shall use their respective
best efforts to obtain such novation. The parties agree that any
provision of this Agreement found to be in conflict of such FAR
provisions will be immediately amended to provide such
compliance. Further the parties agree that they will use their
respective best efforts to provide any and all information and
documents required by the Government as soon as practicable, by
actual delivery to the Government official requesting such
information or document.
(c) On the date of execution hereof, Seller is
delivering to Purchaser, simultaneously with the delivery hereof,
all documents, certificates and agreements necessary to transfer
to Purchaser good and marketable title to the Purchased Assets,
free and clear of any and all Liens including, without
limitation: (i) a xxxx of sale, assignment and general
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conveyance, in form and substance reasonably satisfactory to
Purchaser, dated as of the Effective Date, with respect to the
Purchased Assets, (ii) assignments of all Seller Agreements,
Leases and Intellectual Property and any other agreements and
instruments constituting the Purchased Assets, dated as of the
Effective Date, assigning to Purchaser all of Seller's right,
title and interest therein and thereto, with any required consent
endorsed thereon, except as provided in the Seller Disclosure
Schedule, and (iii) such other documents related to the
transaction as Purchaser has reasonably requested.
2.2 Assumed Liabilities. Subject to the terms and
conditions set forth herein, Purchaser shall assume and pay,
honor and discharge when due all of the following liabilities
(collectively, the "Assumed Liabilities"):
(a) any and all liabilities, obligations and
commitments relating exclusively to the Purchased Assets and
existing at or arising after the Effective Date, but not
including any liabilities which exist as of the Effective Date,
or which are asserted after the Effective Date, but which are
based solely upon or arise solely from any act, omission, state
of facts or other condition which occurred or existed on or prior
to the Effective Date, whether known or unknown, except as
expressly assumed under this Agreement, or the Agreement
Regarding Certain Contracts, Receivables and Payables;
(b) any and all liabilities, obligations and
commitments arising out of Seller Agreements, Leases and other
agreements, contracts and commitments set forth on Schedule 2.2
(other than the DOJ Contract) but not including any obligation or
liability for any breach, claim, assessment or other charge which
exists at or on the Effective Date, or which are asserted after
the Effective Date, but which are based solely upon or arise
solely from any act, omission, state of facts or other condition
which occurred or existed at or prior to the Effective Date,
whether known or unknown;
(c) any and all liabilities, obligations and
commitments listed in Paragraph 1 on Schedule 2.2 hereto; and
(d) all of Seller's liabilities and obligations under
the DOJ Contract in accordance with the requirements of FAR
42.1204(d)(1).
Notwithstanding the provisions of this Article II or
any other provision hereof or any schedule or exhibit hereto and
regardless of any disclosure to Purchaser, Purchaser shall not
assume any liabilities, obligations or commitments of Seller
other than those which Purchaser expressly assumes in this
Article II and Schedule 2.2.
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2.3 Purchase Price. The consideration to be paid by
Purchaser to Seller for the Purchased Assets (the "Purchase
Price") shall be:
(a) $200,000.00, payable by wire transfer to an
account designated by Seller upon execution hereof by the parties
hereto; and
(b) $165,750.00, payable by wire transfer to the
escrow account established pursuant to the Escrow Agreement
attached hereto as Exhibit A.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the disclosure schedule delivered by
Seller to Purchaser (the "Seller Disclosure Schedule"), Seller
represents and warrants to Purchaser the following as of the
Effective Date:
3.1 Organization; Qualification. Seller is a corporation
duly organized, validly existing and in good standing under the
laws of Maryland and has corporate power and authority to own all
of its properties and assets and carry on its business as it is
presently being conducted. Seller is duly qualified and in good
standing to do business in each jurisdiction in which the
property owned, leased or operated by Seller or the nature of the
business conducted by Seller makes such qualification necessary.
Purchaser acknowledges that Seller makes no representations or
warranties as to the qualifications, or Licenses and Permits,
required for Purchaser to conduct the business of Seller after
the Effective Date.
3.2 Authority. Seller has corporate power and authority to
execute and deliver this Agreement and to consummate the
transactions contemplated hereby. Prior to the date of execution
of this Agreement, the execution and delivery by Seller of this
Agreement, and the consummation by it of the transactions
contemplated hereby, shall have been duly authorized by the Board
of Directors of Seller and no other corporate proceedings on the
part of Seller shall be necessary with respect hereto. Assuming
that Purchaser has duly authorized the execution and delivery of
this Agreement, this Agreement, upon authorization as set forth
in the preceding sentence, shall constitute the valid and binding
obligation of Seller. Purchaser acknowledges that, to consummate
the transactions contemplated hereby, Articles of Transfer must
be filed by Purchaser and Seller with, and declared effective by,
the Maryland Department of Assessments and Taxation.
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3.3 Consents and Approvals. There is no requirement
applicable to Seller to make any filing with, or to obtain any
permit, authorization, consent, waiver or approval of any
Government as a condition to the execution and delivery by Seller
of this Agreement or the lawful consummation of the transactions
contemplated hereby. There is no requirement that any party to
any Seller Agreement or Lease consent to the execution and
delivery of, or the consummation of the transactions contemplated
by, this Agreement.
3.4 Non-Contravention. The execution and delivery by
Seller of this Agreement does not, and the consummation of the
transactions contemplated hereby will not violate, conflict with,
result in a material breach of, or result in the creation of any
Lien upon any of the Purchased Assets under any of the terms,
conditions or provisions of (a) the Certificate of Incorporation
or Bylaws of Seller, (b) any note, bond, mortgage, indenture,
deed of trust, license, agreement, lease or other instrument,
obligation or arrangement (including, without limitation, any
Seller Agreement or Lease) to which Seller is a party or to which
Seller or any of the Purchased Assets may be subject, except for
such violations, conflicts or breaches as to which requisite
waivers or consents have been obtained by Seller, or (c) any
order, writ, judgment, injunction, decree, statute, rule or
regulation in effect as of the Effective Date and applicable to
Seller or any of the Purchased Assets.
3.5 Licenses and Permits. Seller has obtained all
Government licenses, permits, certificates, franchises, orders
and other approvals and authorizations necessary for the conduct
by Seller of its business as it is presently being conducted (the
"Licenses and Permits"). All of the Licenses and Permits are in
full force and effect. No violation of a License or Permit has
occurred and is continuing, no notice of any such violation has
been received by Seller, and no proceeding is pending or, to the
best of Seller's knowledge threatened, to revoke or limit any
License or Permit.
3.6 Compliance with Laws. In addition to the
representations and warranties contained in Section 3.5 relating
to Licenses and Permits, Seller has been since at least April
1993, and currently is operating its business in compliance with
all laws, regulations, policies, guidelines, orders, citations,
judgments or decrees of any Government applicable to the
Purchased Assets or its business.
3.7 Tax Matters. (a) Seller has timely filed, or will file
when due, all Federal, state, foreign, county and local returns,
declarations and reports and information returns and statements
required to be filed or sent by or with respect to, any Tax for
any period ending on or before the Effective Date arising out of
or relating to the Purchased Assets or its business
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(collectively, the "Returns"), (b) as of the time of filing, the
Returns correctly reflected (and, as to Returns not filed as of
the Effective Date, will correctly reflect) in all material
respects the facts regarding the income, business, assets,
operations, activities and status of Seller or any other
information required to be shown thereon and (c) as of the
Effective Date, Seller has timely paid, to the extent due and
payable, or made adequate reserve or provision for the payment of
(and will pay when due) all Taxes that were due pursuant to such
Returns or pursuant to assessments received by them) upon or
relating to the Purchased Assets or its business as shown on such
Returns.
3.8 Litigation. There are no actions, suits, claims,
investigations or proceedings (legal, administrative or
arbitrative) pending or, to the knowledge of Seller, threatened
against or affecting Seller, whether at law or in equity and
whether civil or criminal in nature, before any Government.
There are no judgments, decrees or orders of any Government
outstanding against or affecting Seller which relate to the
Purchased Assets or the earnings, assets, financial condition or
operations of Seller, or which seek specifically to prevent,
restrict or delay consummation of the transactions contemplated
by, or fulfillment of any of the conditions of, this Agreement.
3.9 Title to and Condition of Properties; Sufficiency.
(a) The premises subject to the Leases are suitable
for the continued conduct of the business of Seller at such
properties as presently conducted.
(b) Seller has, and hereby transfers to Purchaser,
good and marketable title to, or a valid leasehold interest
pursuant to a Lease in, all of the personal property which is a
part of the Purchased Assets free and clear of any Liens. The
Seller Disclosure Schedule contains a list of certain material
machinery, equipment, furniture, tools, supplies and other
tangible personal property which are used in the conduct of
Seller's business (the "Equipment"). After the consummation of
the transactions contemplated hereby, Seller will not have any
tangible asset having a value for any such asset in excess of
$1,000.00.
(c) The tangible personal property which is a part of
the Purchased Assets (including, without limitation, the
Equipment) is in good condition and repair, except with respect
to ordinary wear and tear.
(d) The Purchased Assets, taken as a whole, are
adequate for the conduct, in all material respects, of the
business of Seller as conducted as of the Effective Date, other
than cash, accounts receivable, Governmental licenses and
permits, employees, if any, not hired by Purchaser.
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3.10 Leases. The Seller Disclosure Schedule sets forth a
list of certain material leases, agreements or commitments to
lease into which Seller has entered which relate to real or
personal property (the "Leases"). All of the Leases are in full
force and effect and there is not, with respect to any of the
Leases, any existing default, or event of default, or event which
with or without the giving of notice or lapse of time or both,
would constitute a default or an event of default on the part of
Seller or, to the best of Seller's knowledge, any other party
thereto. Upon assumption and assignment to Purchaser pursuant to
this Agreement, the Leases will be valid, binding and in full
force and effect.
3.11 Intellectual Property. The Seller Disclosure Schedule
sets forth a list or description of certain trade names
(including, without limitation, the name "Acumenics Research &
Technology"), trademarks and service marks, patents, patent
rights, copyrights, whether domestic or foreign (as well as
applications, registrations or certificates for any of the
foregoing) and other intellectual property rights used in the
conduct of the business of Seller including, without limitation,
the most recent technical and cost proposal submission for the
DOJ Contract plus responses to the Government's technical
questions and best and final offer and any and all supporting
work papers (the "Intellectual Property"). Seller owns all of
the Intellectual Property free and clear of any Liens, and free
of any obligation to make any future license, royalty or similar
payments. There is no claim, suit, action or proceeding, pending
or to the best of Seller's knowledge threatened, against Seller
asserting that its use of any Intellectual Property infringes
upon the rights of any third party or otherwise contesting its
rights with respect to any of the Intellectual Property.
3.12 Seller Agreements. The Seller Disclosure Schedule sets
forth a list of certain material contracts, agreements and other
commitments into which Seller has entered into (the "Seller
Agreements"). All of the Seller Agreements are in full force and
effect and there has not occurred, with respect to any Seller
Agreement, any default or event of default, or event which, with
or without the giving of notice or lapse of time or both, would
constitute a default or event of default on the part of Seller
or, to the best of Seller's knowledge, any other party thereto.
Upon assumption by and assignment to Purchaser pursuant to this
Agreement, Seller Agreements will be valid, binding and in full
force and effect. Seller has delivered to Purchaser complete and
correct copies of all Seller Agreements, together with all
amendments thereto.
3.13 Employee Benefit Plans; Unions.
(a) The Seller Disclosure Schedule lists all of the
employee benefit plans and programs including, without
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limitation, all retirement, savings and other pension plans
("Pension Plans"), all health, severance, insurance, disability
and other employee welfare plans ("Welfare Plans") and all
incentive, vacation and other similar plans that are maintained
by Seller with respect to its Employees or to which Seller has
contributed or is now contributing on behalf of its employees.
Seller is not a party to any multi-employer plan as defined in
Section 3(37) of ERISA.
(b) As to each of the Pension Plans, Seller is in
compliance with all applicable laws and regulations in
administering such plans, including specifically the provisions
of ERISA and the qualification provisions of Section 401 of the
Internal Revenue Code. No prohibited transaction, as defined in
Section 4975 of the Internal Revenue Code, has occurred and is
continuing with respect to any of the Pension Plans and none of
the Pension Plans has incurred any accumulated funding
deficiency, as defined in Section 412 of the Internal Revenue
Code, whether or not waived. None of the Pension Plans has been
completely or partially terminated and there has not been, with
regard to any such plan, any reportable event, as defined in
Section 4043(b) of ERISA, that is required to be reported to the
PBGC by law or regulation.
(c) As to each of the Welfare Plans and other employee
benefit plans and programs, Seller has complied with all
applicable laws and regulations in the administration thereof
including, without limitation, the provisions of ERISA when
applicable.
(d) Seller is not a party to or bound by any
collective bargaining agreement and there are no labor unions or
other organizations representing, purporting to represent or
attempting to represent any employees employed in the operation
of the business operated by Seller.
3.14 Certain Transactions. None of Seller, any officer,
employee or agent of Seller, nor any other Person acting on
Seller's behalf, has, directly or indirectly, since May, 1993
given or agreed to give any gift or similar benefit to any
customer, supplier, Governmental employee or other Person who is
or may be in a position to help or hinder Seller (or assist
Seller in connection with any actual or proposed transaction
relating to its operations) (a) which subjected or might have
subjected Seller to any damage or penalty in any civil, criminal
or governmental litigation or proceeding, (b) which if not given
in the past, might have had an adverse effect, (c) which if not
continued in the future, might have an adverse effect or subject
Seller to suit or penalty in any private or governmental
litigation or proceeding, (d) for any of the purposes described
in Section 162(c) of the Internal Revenue Code or (e) for the
purpose of establishing or maintaining any concealed fund or
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concealed bank account.
3.15 Finders. No broker, finder or investment banker is on
behalf of Seller in connection with the transactions contemplated
by this Agreement.
3.16 Disclosure. Seller has disclosed to Purchaser all
facts of which Seller has actual knowledge which would have a
material adverse fact on Purchaser's performance of the DOJ
Contract, other than facts generally affecting government
contractors. Other than those representations or warranties
contained in this Article III, Seller makes no representation or
warranty, express or implied, including, without limitation, any
implied warranty or representation as to condition,
merchantability or fitness for a particular purpose of any of the
Purchased Assets.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Except as set forth in the disclosure schedule delivered by
Purchaser to Seller (the "Purchaser Disclosure Schedule"),
Purchaser represents and warrants to Seller the following as of
the Effective Date:
4.1 Organization; Qualification. Purchaser is a
corporation duly organized, validly existing and in good standing
under the laws of Virginia and has corporate power and authority
to own all of its properties and assets and carry on its business
as it is presently being conducted. Purchaser is duly qualified
and in good standing to do business in each jurisdiction in which
the property owned, leased or operated by Purchaser or the nature
of the business conducted by Purchaser makes such qualification
necessary.
4.2 Authority. Purchaser has corporate power and authority
to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by
Purchaser of this Agreement, and the consummation by it of the
transactions contemplated hereby, has been duly authorized by the
Board of Directors of Purchaser and no other corporate
proceedings on the part of Purchaser are necessary with respect
hereto. Assuming that Seller has duly authorized the execution
and delivery of this Agreement, this Agreement constitutes the
valid and binding obligation of Purchaser.
4.3 Consents and Approvals. There is no requirement
applicable to Purchaser to make any filing with, or to obtain any
permit, authorization, consent, waiver or approval of any
Government as a condition to the execution and delivery by
Purchaser of this Agreement or the lawful consummation of the
transactions contemplated hereby. There is no requirement that
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any party to any material contract, instrument or other agreement
or commitment to which Purchaser is a party or by which it is
bound consent to the execution and delivery of, or the
consummation of the transactions contemplated by, this Agreement.
4.4 Non-Contravention. The execution and delivery by
Purchaser of this Agreement does not, and the consummation of the
transactions contemplated hereby will not violate, conflict with,
result in a breach of, or result in the creation of any Lien upon
any of the properties or assets of Purchaser under any of the
terms, conditions or provisions of (a) the Certificate of
Incorporation or Bylaws of Purchaser, (b) any note, bond,
mortgage, indenture, deed of trust, license, agreement, lease or
other instrument, obligation or arrangement to which Purchaser is
a party or to which Purchaser or any of its assets may be
subject, except for such violations, conflicts or breaches as to
which requisite waivers or consents have been obtained by
Purchaser, or (c) any order, writ, judgment, injunction, decree,
citation, award, ruling, statute, rule or regulation in effect as
of the Effective Date and applicable to Purchaser or any of its
assets or the business conducted by Purchaser.
4.5 Litigation. There are no actions, suits, claims,
investigations or proceedings (legal, administrative or
arbitrative) pending or, to the knowledge of Purchaser,
threatened against or affecting Purchaser, whether at law or in
equity and whether civil or criminal in nature, before any
Government. There are no judgments, decrees or orders of any
Government outstanding against or affecting Purchaser which
relate to the Purchased Assets or the earnings, assets, financial
condition or operations of Purchaser, or which seek specifically
to prevent, restrict or delay consummation of the transactions
contemplated by, or fulfillment of any of the conditions of, this
Agreement.
4.6 Finders. No broker, finder or investment banker is
entitled to any fee or commission from Purchaser for services
rendered on behalf of Purchaser in connection with the
transactions contemplated by this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Proration of Lease Payments and Other Payments. Any
installment due on any of the Leases and any charge payable where
appropriate, under Seller Agreements with respect to the period
in which the Effective Date occurs, as well as any personal
property Taxes, shall be prorated between the parties hereto on
the basis of the actual number of days applicable to use or
occupancy.
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5.2 Allocation of Purchase Price. The Purchase Price has
been agreed upon by the parties and the values assigned to the
various assets which constitute the Purchased Assets shall be
agreed upon by the parties not later than 30 days after the date
hereof. Seller and Purchaser agree that such values will be
separately established as a result of good faith bargaining and
that in reporting the transactions contemplated by this Agreement
to the Internal Revenue Service, as is required by Section 1060
of the Internal Revenue Code, they will use such values and
cooperate with each other in meeting the requirements of the
Internal Revenue Code and the regulations promulgated thereunder.
5.3 Materials Received After the Date Hereof; Cooperation.
Following the date of execution of this Agreement Seller promptly
shall forward to Purchaser all mail, telegrams and other
communications it receives relating to the Purchased Assets or
its business. Seller will cooperate with Purchaser and disclose
and make available to Purchaser all information in Seller's
possession relating to Seller Agreements and any obligations
related thereto.
5.4 Expenses. All costs and expenses, sales and transfer
Taxes and fees (including filing fees, if any) incurred in
connection with this Agreement and the transactions contemplated
hereby will be paid by the party incurring such costs, expenses,
Taxes and fees, except that Purchaser shall reimburse Seller,
promptly following presentation of an invoice therefor, for costs
of preparing the initial drafts of all agreements relating to the
transactions contemplated hereby.
5.5 Public Announcements. The parties will consult with
one another before issuing any press releases or otherwise making
any public statements with respect to this Agreement and the
transactions contemplated hereby and will not issue any such
press release or make any such public statement without the
written consent of the other, which consent shall not be
unreasonably withheld; provided, however, that Purchaser or
Seller may make such disclosure as it determines, in its sole
discretion, is required by law or by the National Association of
Securities Dealers, Inc., and that this Section 5.5 shall not
apply to statements made in connection with Purchaser's marketing
and sales efforts.
5.6 Further Assurances. Seller will use its best efforts
to implement the provisions of this Agreement. Seller will, for
such purpose, at the request of Purchaser, without further
consideration, promptly execute and deliver such additional
documents as Purchaser may reasonably deem necessary or desirable
in order to consummate more effectively the transactions
contemplated hereby and to vest in Purchaser title to the
Purchased Assets free and clear of any Liens.
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5.7 Consent to Assignment of Leases and Seller Agreements.
In the event the Seller Disclosure Schedule discloses that the
consent of any Person is required in connection with the
assignment by Seller to Purchaser of any Lease or Seller
Agreement, and such consent has not been obtained on or prior to
the date of execution hereof, Seller and Purchaser shall use
their respective best efforts to obtain such consent (and in
connection therewith, the release of Seller from any and all
liabilities and obligations thereunder to any other party
thereto) as soon as practicable after the date of execution
hereof.
5.8 Change of Seller's Name. Not later than 5 days after
the date of execution hereof, Seller shall file with the Maryland
Department of Assessments and Taxation such documents as are
necessary to change Seller's name so that it does not contain the
word "Acumenics."
5.9 Covenant not to Compete. As part of the consideration
for the sale of the Purchased Assets, Seller covenants and agrees
that for a period of 10 years after the Effective Date, neither
Seller nor any entity controlled by Seller shall own, manage,
operate or control, or participate in the ownership, management,
operation or control of, any Person providing litigation support
services including, without limitation, legal document coding.
The parties acknowledge that the business conducted by Seller has
been conducted on a nationwide scope, and the parties intend and
understand that this non-compete limitation is intended to be,
and shall be, a limit within the geographical boundaries of the
United States. The parties further intend that this non-compete
provision include two contract cycles. In the event that a court
of competent jurisdiction holds that either or both of the
geographical or time period restriction is too expansive, the
parties shall agree upon a geographical and/or time period
restriction that complies with then applicable law, and this
provision shall be enforced to the extent modified thereby.
5.10 Confidentiality. Pursuant to the terms hereof,
whenever either party requires access to the books and records of
the other party (the "Information"), the disclosing party shall
disclose such of the Information to the requesting party as the
disclosing party reasonably determines is required for the
purpose of the request. Each party acknowledges that the
Information of the other may contain confidential and proprietary
information acquired through the expenditures of considerable
time, effort and money including marketing, financial and
technical data and prospect and customer list. All right, title
and interest in and to the Information shall remain the exclusive
property of disclosing party, and the Information shall be held
in trust and confidence by the requesting party. No interest,
license of any right respecting the Information, other than as
expressly set out herein, is granted to the requesting party
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under this Agreement by implication or otherwise. The requesting
party shall not use the Information in any manner except as is
reasonably required for a purpose permitted by this Agreement.
The requesting party shall use all reasonable efforts to protect
the disclosing party's interest in the Information and to keep it
confidential, using a standard of care no less than the degree of
care that the requesting party would be reasonably expected to
employ for its own similar confidential information. In
particular, recipient shall not, directly or indirectly,
disclose, allow access to, transmit or transfer the Information
to a third party (other than counsel for the recipient) without
the disclosing party's prior written consent or except as
required by law. The requesting party shall disclose the
Information only to those of its employees who have a need to
know the Information. The requesting party shall, prior to
disclosing the Information to such employees, issue appropriate
instructions to them to satisfy its obligations herein and obtain
their agreement to receive and use the Information on a
confidential basis on the same conditions as contained in this
Agreement. The Information shall not be copied, reproduced in
any form or stored in a retrieval system or data base by the
requesting party without the prior written consent of the
disclosing party, except for such copies and storage as may
reasonably be required internally by the requesting party for a
purpose permitted by this Agreement. The obligations of the
requesting party hereunder shall not apply to Information:
(a) which at the time of disclosure is, or thereafter
becomes, available to the trade or the public without restriction
other than through the fault or negligence of the requesting
party;
(b) which is lawfully and in good faith obtained by
the requesting party from an independent third party without
breach of this Agreement, as shown by documentation sufficient to
establish the third party as a source of the Information and not
obtained by the third party from disclosure; or
(c) which the requesting party can establish, by
documented and competent evidence, was in its possession prior to
the date of disclosure of such Information by disclosure or was
independently developed by the requesting party.
ARTICLE VI
EMPLOYEES AND EMPLOYEE MATTERS
6.1 Employees. Seller has delivered to Purchaser a list of
all employees of Seller including the current annual salaries and
other compensation of each such employee. Purchaser has offered
employment to all of such Persons listed in the Seller Disclosure
Schedule. Nothing in this Agreement shall be deemed to
constitute a contract of employment between Purchaser and any
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such employee, or to limit Purchaser's rights to establish,
maintain or change its employment practices. Seller's employees
who become employees of Purchaser are hereinafter referred to as
"Transferred Employees" and shall be deemed to have terminated
employment with Seller and to have become employees of Purchaser
as of the Effective Date.
6.2 Employee Benefit Plans.
(a) Purchaser will permit each salaried employee and
each hourly employee of Seller who becomes a Transferred Employee
to participate, on the same basis that Purchaser's employees
participate, in the employee benefit plans and programs regularly
made available to the employees of Purchaser who hold similar
positions. The Transferred Employees' vesting and participating
in, and accrual of benefits under, plans and programs covering
employees of Purchaser shall be based solely on their service
with Purchaser after the Effective Date.
(b) No assets or liabilities with respect to
Transferred Employees shall be transferred, as a result of this
Agreement, from any of Seller's employee benefit plans applicable
to the employees of Seller to any plan maintained or established
by Purchaser, and Seller shall retain all obligations to fund or
otherwise provide benefits accrued by Transferred Employees under
its benefit plans prior to the Effective Date. Benefits, if any,
under the plans retained by Seller shall be payable to the
Transferred Employees pursuant to the terms of such plans and
shall constitute the only benefits to which the Transferred
Employees are entitled with respect to their service with Seller
prior to the Effective Date.
6.3 Worker's Compensation. Purchaser will assume the
responsibility for all worker's compensation claims made by
Transferred Employees arising from events occurring after the
Effective Date. Seller will retain the responsibility for all
worker's compensation claims made by its employees or former
employees (whether or not Transferred Employees) that arise from
events that occur before the Effective Date or events otherwise
occurring while the employees are employed by Seller.
6.4 Administration. Purchaser and Seller will each make a
representative available to the other at such reasonable times as
may be necessary for the proper administration by the other of
any and all matters relating to employee benefits and worker's
compensation claims affecting Transferred Employees. If, as a
result of the transactions contemplated by this Agreement,
reports are required to be filed with respect to any of Seller's
benefit plans, Seller will file such reports.
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ARTICLE VII
INDEMNIFICATION
7.1 Indemnification by Seller. Subject to the limitations
contained in this Article VII, Seller shall indemnify, defend and
hold Purchaser and Purchaser's shareholders, directors, officers,
employees and agents, and the respective heirs, administrators,
successors and assigns of each of the foregoing, harmless from
any damage, loss, liability, judgment, fine, penalty, assessment,
settlement, cost or expense including, without limitation,
reasonable expenses of investigation, reasonable attorneys' fees
and other reasonable legal costs and expenses incident to any of
the foregoing or to the enforcement of this Section (a "Loss")
arising out of or relating to:
(a) any misrepresentation, inaccuracy or breach of a
representation or warranty made by Seller in this Agreement or in
any schedule to this Agreement;
(b) the breach of any agreement of Seller contained in
this Agreement;
(c) any liability or obligation of Seller not
specifically assumed by Purchaser pursuant to this Agreement;
(d) any liability or obligation under the DOJ
Contract, its performance, those employed thereunder (other than
accrued vacation liabilities expressly assumed by Purchaser
hereunder) or any matter related thereto for the time period
prior to the Effective Date; and
(e) claims made by creditors of Seller relating to
provisions of the "bulk sales laws" of any state or other
jurisdiction which may be applicable to the transactions
contemplated hereby.
7.2 Indemnification by Purchaser. Subject to the
limitations contained in this Article VII, Purchaser will
indemnify, defend and hold Seller and Seller's shareholders,
directors, officers, employees and agents, and the respective
heirs, administrators, successors and assigns of each of the
foregoing, harmless from any Loss arising out of or relating to:
(a) any misrepresentation, inaccuracy or breach of a
representation or warranty made by Purchaser in this Agreement or
in any schedule to this Agreement;
(b) the breach of any agreement of Purchaser contained
in this Agreement; and
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(c) the failure of Purchaser to pay or perform any
liability or obligation specifically assumed by it pursuant to
the terms of this Agreement including, without limitation,
liabilities or obligations under the DOJ Contract, its
performance, those employed thereunder or any matter related
thereto for the time period from and after the Effective Date.
7.3 Third Party Claims. The obligations and liabilities of
a party from which indemnification is sought (an "Indemnifying
Party") by a party seeking indemnification (an "Indemnified
Party") under this Article VII with respect to claims resulting
from the assertion of liability by third parties shall be subject
to the following conditions:
(a) The Indemnified Party shall give prompt written
notice to the Indemnifying Party of the nature of the assertion
of liability by a third party and the amount thereof to the
extent known.
(b) If any action, suit or proceeding (a "Legal
Action") is brought by a third party against an Indemnified
Party, the Legal Action shall be defended by the Indemnifying
Party at its expense by counsel reasonably acceptable to the
Indemnified Party. Until the Indemnifying Party shall have
assumed the defense of any such Legal Action, or if the
Indemnified Party shall have reasonably concluded that there are
likely to be defenses available to the Indemnified Party that are
different from or in addition to those available to the
Indemnifying Party (in which case the Indemnifying Party shall
not be entitled to assume the defense of such Legal Action), all
legal or other expenses reasonably incurred by the Indemnified
Party shall be borne by the Indemnifying Party.
(c) In any Legal Action initiated by a third party and
defended by the Indemnifying Party (i) the Indemnified Party
shall have the right to be represented by advisory counsel and
accountants, at its own expense, (ii) the Indemnifying Party
shall keep the Indemnified Party fully informed as to the status
of such Legal Action at all stages thereof, whether or not the
Indemnified Party is represented by its own counsel, and, to the
extent reasonable and practical and not violative of attorney-
client privilege, shall consult with the Indemnified Party
regarding the conduct of the defense of any such Legal Action,
(iii) the Indemnified Party shall make available to the
Indemnifying Party, and its attorneys and accountants, all books
and records of the Indemnified Party relating to such Legal
Action and (iv) the parties shall render to each other such
assistance as may be reasonably required in order to ensure the
proper and adequate defense of such Legal Action.
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(d) In any Legal Action initiated by a third party and
defended by the Indemnifying Party, the Indemnifying Party shall
not make any settlement of any claim without the written consent
of the Indemnified Party, which consent shall not be unreasonably
withheld, and the Indemnified Party shall not make any settlement
of any claim without the written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld. Without
limiting the generality of the foregoing, it shall not be deemed
unreasonable to withhold consent to a settlement involving
injunctive or other equitable relief against the Indemnified
Party or its assets, employees or business.
(e) In any Legal Action initiated by a third party and
defended by the Indemnified Party (i) the Indemnifying Party
shall have the right to be represented by advisory counsel and
accountants, at its own expense, (ii) the Indemnified Party shall
keep the Indemnifying Party fully informed as to the status of
such Legal Action at all stages thereof, whether or not the
Indemnified Party is represented by its own counsel, and, to the
extent reasonable and practical and not violative of attorney-
client privilege, shall consult with the Indemnifying Party
regarding the conduct of the defense of any such Legal Action,
(iii) the Indemnifying Party shall make available to the
Indemnified Party, and its attorneys and accountants, all books
and records of the Indemnifying Party relating to such Legal
Action and (iv) the parties shall render to each other such
assistance as may be reasonably required in order to ensure the
proper and adequate defense of such Legal Action.
(f) In any Legal Action initiated by a third party and
defended by the Indemnified Party, the Indemnified Party shall
not make any settlement of any claim without the written consent
of the Indemnifying Party, which consent shall not be
unreasonably withheld, and the Indemnifying Party shall not make
any settlement of any claim without the written consent of the
Indemnified Party, which consent shall not be unreasonably
withheld. Without limiting the generality of the foregoing, it
shall not be deemed unreasonable to withhold consent to a
settlement involving injunctive or other equitable relief against
the Indemnifying Party or its assets, employees or business.
(g) In the event an Indemnifying Party or Indemnified
Party proposes to settle any Legal Action, it shall give at least
30 days prior notice of such settlement to the Indemnified or
Indemnifying Parties, as the case may be. In the event the party
given notice fails to respond thereto within 30 days after such
notice is given, then such nonresponding party shall be deemed to
have consented to the terms of such settlement.
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7.4 Recoveries. There shall be netted from the amount of
any payment required under Section 7.1: (a) the amount of any
indemnification received by Purchaser or any affiliate thereof
from an unrelated party with respect to such Loss, (b) the amount
of any insurance proceeds or other cash receipts paid to
Purchaser or any affiliate thereof as an offset against such Loss
(and no right of subordination shall accrue to any insurer
hereunder) and (c) the excess of (i) the aggregate sum of any
payments constituting the Loss which are not required to be made
to a third party for more than twelve (12) months following the
date upon which the amount and Seller's responsibility therefor
is determined, over (ii) such aggregate sum discounted to its
present value, with such present value being computed as of the
date of such determination by using a discount rate compounded
annually, equal to the eight percent (8%), provided, however,
that Purchaser may elect instead to have such payments
constituting the Loss paid by Seller as they become due. In
addition, the amount of the Loss shall be further reduced by an
amount equal to the Tax benefit, if any, attributable to such
Loss and actually realized by Purchaser or any Person in the
consolidated tax group of Purchaser during any taxable period
after the Effective Date. If the amount of any limitation
pursuant to this Section 7.4 is determined after payment by
Seller of any amount otherwise required to be paid pursuant to
this Article VII, Purchaser shall repay to Seller, promptly after
such determination, any amount that Seller would not have had to
pay pursuant to this Article VII had such determination been made
at the time of such payment. This Section 7.4 shall not impose
upon Purchaser any obligation to make any claim under any
insurance policy, pursue any indemnification from a third party
or seek any Tax benefit if Purchaser reasonably, and in good
faith, determines that to do so would have an adverse economic
effect on Purchaser.
7.5 Limitations on Indemnification.
(a) Seller shall be required to indemnify and hold
harmless an Indemnified Party under Article VII with respect to
any Loss incurred by any such Indemnified Party only if and to
the extent the aggregate amount of recovery to which all
Indemnified Parties are entitled under this Article VII shall
exceed $2,500.00 for any Loss, or $20,000.00 in the aggregate,
and to the extent the cumulative and aggregate amount Seller is
obligated to pay under Article VII shall not exceed
$2,000,000.00.
(b) Seller shall not have any liability under any
provision of this Agreement for any Loss or portion thereof that
arises from actions taken by Purchaser or any affiliate thereof.
Purchaser shall take all reasonable steps to mitigate Losses upon
becoming aware of any event which could reasonably be expected to
give rise thereto, and reasonable, good faith efforts to mitigate
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shall not be considered to relieve Seller from any liability as
provided in the preceding sentence.
7.6 Indemnification as Exclusive Remedy. Except as
provided in Section 7.9, the indemnification provided in this
Article VII, subject to the limitations set forth herein, shall
be the exclusive remedy for monetary damages (but shall not limit
equitable relief) available to Purchaser or any other Indemnified
Party for any breach of any representation or warranty made in
this Agreement or in any schedule to this Agreement or of any
covenant or agreement of Seller contained in this Agreement or
any other causes of action arising out of the transactions
contemplated hereby.
7.7 Purchaser Indemnification Limitations. Seller's rights
to indemnification by Purchaser under this Article VII shall be
governed and limited by the provisions of Sections 7.4 through
7.6, inclusive, as if they had been restated in this Section 7.7
with references to "Purchaser" changed to "Seller," and vice
versa. Section 7.3 applies to both parties.
7.8 Survival; Investigation.
(a) No Person may make any claim for indemnification
under this Article VII later than April 30, 1998 (the "Survival
Date"). The expiration of the period within which claims for
indemnification may be made shall not affect the rights of any
Indemnified Party with respect to claims made prior to such
expiration.
(b) No investigation by any of the parties, heretofore
or hereafter made, shall affect the survival of any
representation and warranty contained herein.
7.9 Applicability of Article VII to Certain Provisions.
This Article VII shall not apply to Sections 2.3, 5.1 through
5.10, inclusive, or Article VI of this Agreement.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Notices. 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):
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(i) If to Seller to:
Acumenics Research & Technology, 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
(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.
8.2 Interpretation. 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.
8.3 Counterparts. 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.
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8.4 Assignment. 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
VII 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.
8.5 Entire Agreement; Amendment. This Agreement (including
all exhibits and the Seller Disclosure Schedule and Purchaser
Disclosure Schedule) and other related agreements executed on the
date hereof constitute the entire agreement with respect to the
subject matter hereof 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 Disclosure Schedule may be amended only by a writing
signed by Seller and Purchaser.
8.6 Governing Law. 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.
8.7 Benefits. Except as provided in Article VII, this
Agreement is not intended to and shall not confer upon any other
Person, other than the parties hereto, any rights or remedies
with respect to the subject matter hereof.
8.8 Severability. 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.
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
By:/S/ Xxxxxx X. Xxxxxxxxxx
_______________________________
Xxxxxx X. Xxxxxxxxxx, President
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ACUMENICS RESEARCH & TECHNOLOGY, INC.
By: /S/ Xxxxxx X. Xxxxxx
_______________________________
Xxxxxx X. Xxxxxx, Acting
President
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EXHIBIT A ESCROW AGREEMENT
THIS ESCROW AGREEMENT, made this 15th day of December, 1995
(the "Effective Date") by and among Acumenics Research &
Technology, Inc. ("Seller"), Xxxxx-Xxxxxxxx Incorporated
("Purchaser"), and Leonard, Ralston, Xxxxxxx & Remington ("Escrow
Agent").
WHEREAS, the Seller and Purchaser have entered into that
certain Asset Purchase Agreement dated December 1, 1995 (the
"Agreement"), which is incorporated herein by reference; and
WHEREAS, the Seller and Purchaser have entered into that
certain Agreement Regarding Contracts, Receivables and Payables
dated December 1, 1995 (the "Operating Agreement"), which is
incorporated herein by reference; and
WHEREAS, the parties have agreed that a portion of the
Purchase Price, as defined in the Agreement, shall be held in
escrow on such terms and conditions as are contained herein and
in the Agreement.
NOW, THEREFORE, the parties do hereby agree as follows:
1. On the date of execution of this Escrow Agreement,
Purchaser shall deposit the sum of One Hundred Sixty-Five
Thousand Seven Hundred Fifty Dollars ($165,750.00) (the "Escrow
Fund") in Century National Bank with interest at the normal rate
given by such financial institution for similar accounts, to be
held by the Escrow Agent in accordance with the terms herein.
The Escrow Fund shall be held in an interest bearing account
under the Seller's federal taxpayer identification number, and
any and all interest accrued thereon shall become part of the
Escrow Fund. The Seller's federal taxpayer identification number
is 00-0000000.
2. The Escrow Agent shall distribute and deliver the
Escrow Fund, as then constituted, to Seller by wire immediately
upon receipt of:
a. all of the items required to be provided by the
transferor under FAR 42.1204(c): (2), (3), (4), (6), (8), and
(10), with respect to the Contract (collectively, the "Items"),
which Items shall be in accordance with the provisions of FAR
42.1201 et seq.;
b. evidence that the Bank of Highland has released
its lien on the assets purchased under the Agreement; and
c. a letter of modification directing the Government
to pay all invoices for services performed on or after December 1
to Purchaser.
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3. Upon distribution and delivery of the entire Escrow
Fund by the Escrow Agent in accordance with the terms hereof,
Purchaser and Seller shall release the Escrow Agent from any and
all liability arising out of or related to this Escrow Agreement,
and this Escrow Agreement shall terminate.
4. Purchaser shall pay all costs of the Escrow Agent
hereunder. Seller acknowledges and agrees that the Escrow Agent
is counsel for Purchaser, and is not representing Seller
hereunder. Escrow Agent is serving solely hereunder in its
capacity as escrow agent and such service shall not prevent the
Escrow Agent from serving as counsel for Purchaser in the event
of any dispute between Purchaser and Seller in relation hereto or
to the Agreement; provided, however, Escrow Agent must designate
a successor escrow agent and transfer all such funds to the
successor escrow agent prior to serving in such capacity with
respect to the escrowed amounts.
5. This Escrow Agreement shall be governed by the laws of
the Commonwealth of Virginia. Any controversy related to or
arising out of the Escrow Agreement shall be brought exclusively
in the appropriate state court of Fairfax County, Virginia, and
the parties expressly agree to be subject to such jurisdiction in
accordance with the terms hereof.
6. This Agreement shall be binding and inure to the
benefit of the parties hereto and their respective successors,
assigns, heirs and personal representatives.
7. The capitalized terms used herein shall have the same
meaning as in the Agreement, unless otherwise noted herein.
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WITNESS THE FOLLOWING SIGNATURES AND SEALS.
ACUMENICS RESEARCH & TECHNOLOGY, INC.
By: /S/ Xxxxxx X. Xxxxxx
________________________________(SEAL)
Title: Acting President
XXXXX-XXXXXXXX INCORPORATED
By: /S/ Xxxxxx X. Xxxxxxxxxx
________________________________(SEAL)
Title: President
LEONARD, RALSTON, XXXXXXX & REMINGTON,
ESCROW AGENT
By: /S/ Xxxx Xxxxx Xxxxxx
________________________________(SEAL)
Title:
-26- 26
