EXHIBIT 10.1
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ASSET PURCHASE AGREEMENT
BETWEEN
VIISAGE TECHNOLOGY, INC.
AND
XXX ACQUISITION CORP.
D/B/A XXX TECHNOLOGIES
January 10, 2002
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ARTICLE I, DEFINITIONS .................................................... 1
ARTICLE II, PURCHASE AND SALE ............................................. 4
2.1 Purchase and Sale of Assets ..................................... 4
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2.2 Acquired Assets ................................................. 4
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2.3 Assumption of Liabilities ....................................... 5
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2.4 Earnout Payment. ................................................ 5
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2.5 The Closing. .................................................... 6
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ARTICLE III, ORGANIZATION ................................................. 6
3.1 Organizational Restrictions During the Transition Period ........ 6
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3.2 Modifications
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3.3 Chairman of the Board ........................................... 7
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3.4 Termination of Organizational Restrictions ...................... 7
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3.5 Employment Contracts for Key Personnel .......................... 7
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3.6 Employment of Other Seller Personnel ............................ 8
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3.7 Services ........................................................ 8
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3.8 Confidentiality ................................................. 8
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3.9 Non-Competition ................................................. 9
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ARTICLE IV, REPRESENTATIONS AND WARRANTIES OF SELLER ...................... 8
4.1 Organization of Seller .......................................... 9
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4.2 Authorization of Transaction .................................... 9
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4.3 Noncontravention ................................................ 9
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4.4 Brokers' Fees ................................................... 9
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4.5 Title to Assets ................................................. 9
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4.6 Financial Statements ............................................ 9
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4.7 Undisclosed Liabilities ......................................... 10
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4.8 Legal Compliance ................................................ 10
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4.9 Tax Matters ..................................................... 10
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4.10 Real Property ................................................... 10
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4.11 Intellectual property ........................................... 10
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4.12 Tangible Assets ................................................. 11
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4.13 Inventory ....................................................... 11
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4.14 Contracts ....................................................... 11
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4.15 Notes and Accounts Receivable ................................... 11
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4.16 Insurance ....................................................... 11
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4.17 Litigation ...................................................... 12
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4.18 Product Warranty and Liability .................................. 12
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4.19 Employee Benefits ............................................... 12
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4.20 Disclosure ...................................................... 12
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ARTICLE V, REPRESENTATIONS AND WARRANTIES OF BUYER ....................... 12
5.1 Organization of Buyer .......................................... 13
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5.2 Authorization of Transaction ................................... 13
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5.3 Noncontravention ............................................... 13
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5.4 Brokers' Fees .................................................. 13
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ARTICLE VI, PRE-CLOSING COVENANTS ........................................ 13
6.1 General ........................................................ 13
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6.2 Notices and Consents ........................................... 13
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6.3 Operation of Business .......................................... 14
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6.4 Full Access .................................................... 14
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6.5 Notice of Developments ......................................... 14
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ARTICLE VII, CONDITIONS TO OBLIGATION TO CLOSE ........................... 14
7.1 Conditions to Obligation of Buyer .............................. 14
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7.2 Conditions to Obligation of Seller ............................. 15
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ARTICLE VIII, POST-CLOSING COVENANTS ..................................... 16
8.1 Further Assurances ............................................. 16
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8.2 Use of Name "Xxx" .............................................. 16
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8.3 Audit Rights ................................................... 16
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8.4 Vision Interactive License ..................................... 17
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ARTICLE IX, TERMINATION .................................................. 17
9.1 Termination of Agreement ....................................... 17
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9.2 Effect of Termination .......................................... 17
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ARTICLE X, MISCELLANEOUS ................................................. 17
10.1 No Third-Party Beneficiaries ................................... 17
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10.2 Entire Agreement ............................................... 17
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10.3 Succession and Assignment ...................................... 18
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10.4 Notices ........................................................ 18
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10.5 Governing Law .................................................. 18
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10.6 Amendments and Waivers ......................................... 18
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10.7 Severability ................................................... 18
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10.8 Expenses ....................................................... 18
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10.9 Incorporation of Exhibits and Schedules ........................ 18
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10.10 Specific Performance ........................................... 19
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10.11 Survival of Representations and Warranties ..................... 19
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Exhibit A - Balance Sheet
Exhibit B - Form of Intellectual Property Assignment Agreement
Exhibit C - Organizational Structure
Exhibit D - Financial Statements
Exhibit E - Form of Assumption Agreement
Exhibit F - Form of Xxxx of Sale
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is entered into as of
January 10, 2002 by and between Viisage Technology, Inc. a Delaware corporation
(the "Buyer") and Xxx Acquisition Corp. d/b/a Xxx Technologies, a Massachusetts
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corporation (the "Seller") (Buyer and Seller referred to collectively herein as
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the "Parties").
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WITNESSETH:
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WHEREAS, Seller is engaged in the business of developing,
manufacturing and selling facial recognition software and hardware products to
the federal government market through Xxx Security Systems, the operating
division of Xxx Technologies; and
WHEREAS, Seller desires to sell, transfer and assign to Buyer, and
Buyer desires to purchase and acquire from Seller, all the assets of Xxx
Security Systems, in return for certain earnout payments as described herein and
the assumption of certain specified liabilities.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties, intending to become legally bound,
agree as follows.
ARTICLE I
DEFINITIONS
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For the purposes of this Agreement, the following words and phrases,
when used herein, shall have the meanings specified or referred to below:
"Acquired Assets" has the meaning provided in Article II, Section 2.2.
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"Assumed Liabilities" has the meaning provided in Article II, Section
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2.3.
"Balance Sheet" shall mean the unaudited pro forma balance sheet of
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the Business as of October 31, 2001 in the form provided to Buyer by Seller and
as such may be adjusted pursuant to the terms of this Agreement, annexed hereto
as Exhibit A.
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"Business" shall mean the products and services offered by and the
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business operations and relationships of Seller relating to facial recognition
products and technology, including the business operations of Xxx Security
Systems, an operating division of Seller, as of the Effective Date, including,
without limitation, all of the intellectual property, technology, know how,
products and services, customer contracts and agreements, customer
relationships, third party intellectual property licenses and reseller
arrangements, and tangible and intangible property involved in or related to the
development, manufacture, licensing and sale of facial recognition products and
technology.
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"Change of Control" means the sale of all or substantially all of the
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assets of Buyer, a sale of greater than 50% of the outstanding capital stock of
the Buyer, or a merger in which the Buyer is not the surviving entity.
"Closing" and "Closing Date" have the meanings set forth in Article
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II, Section 2.5 below.
"Code" means the Internal Revenue Code of 1986, as amended, and the
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regulations promulgated thereunder.
"Contracts" means the agreements, contracts, leases, licenses,
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purchase orders, and other arrangements relating to the Business, oral and
written, including all of the licenses and sublicenses granted and obtained with
respect thereto, relating to the Business.
"Disclosure Schedule" has the meaning set forth in Article IV below.
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"Earnout", "Earnout Payments" and "Earnout Period" have the meanings
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set forth in Article II, Section 2.4.
"Effective Date" means January 1, 2002, the effective date for this
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Agreement.
"Encumbrances" means any mortgage, pledge, lien, lis pendens, charge,
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attachment, easement, covenant, restriction or other encumbrance of any nature.
"Financial Statements" has the meaning set forth in Article IV,
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Section 4.6 below.
"FR Business Unit" means the operating and reporting division of the
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Buyer, post-Closing, that includes the commercial facial recognition division of
Buyer as existing pre-Closing, including casino applications, the Business, and
any new facial recognition opportunities that are not included in the Secure ID
Business Unit.
"FR Revenue" means the Buyer's cash receipts directly attributable to
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facial recognition technology, including: (i) licensing revenue from facial
recognition technology; (ii) revenue from sales of stand-alone facial
recognition products; (iii) revenue identified as payment for facial recognition
technology by line item in contracts for bundled products and services; and (iv)
in the case of contracts for bundled products or services that do not separately
identify payments for facial recognition technology, the percentage of the
revenue from such contract that is directly attributable to facial recognition
technology, such percentage to be reasonably determined by the Buyer using
appropriate industry information and valuation procedures; but excluding any
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revenue, including revenue attributable to facial recognition technology: (i)
relating to or arising out of the gaming market, including casinos; (ii) from
licenses, contracts and other sales in the Buyer's back-log prior to the Closing
Date; and (iii) arising from or relating to contracts with any state Departments
of Motor Vehicles where facial recognition is an ancillary part of or an
extension to a driver's license contract.
"GAAP" means generally accepted accounting principles as applied by
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Seller in preparing the most recent audited balance sheet of Seller.
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"Intellectual Property" means (i) all inventions (whether patentable
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or unpatentable and whether or not reduced to practice), and all improvements
thereto, including all patents, patent applications, and patent disclosures,
together with reissues, continuations, continuation-in-parts, divisions,
provisional applications, reexaminations, foreign related applications and
foreign patents thereof, and all rights to use third party patents and patent
applications, (ii) all trademarks, service marks, trade dress, logos, domain
names and trade names, including combinations thereof and including all goodwill
associated therewith, and all applications, registrations, and renewals in
connection therewith, (iii) all copyrightable works, all copyrights, and all
applications, registrations, and renewals in connection therewith, (iv) all mask
works and all applications, registrations, and renewals in connection therewith,
(v) all trade secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions, manufacturing and
production processes and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals), (vi) all computer software
(including data and related documentation), (vii) all other proprietary rights,
and (viii) all copies and tangible embodiments thereof (in whatever form or
medium), relating to and used in the course of the Business.
"Liability" means any liability (whether known or unknown, whether
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asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Related Agreement" means any agreement, certificate or instrument
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executed and delivered by a Party at the Closing or otherwise in connection with
the consummation of the transaction contemplated by this Agreement.
"Secure ID Business Unit" means the operating and reporting division
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of Buyer, post-Closing, that includes all ID contracts, programs and other ID
opportunities, including, without limitation, Buyer's state drivers license
opportunities.
"Tax" means any federal, state, local, or foreign income, gross
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receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code (S) 59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Transition Period" has the meaning set forth in Article III, Section
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3.1.
ARTICLE II
PURCHASE AND SALE
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2.1 Purchase and Sale of Assets. On and subject to the terms and
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conditions of this Agreement, at the Closing, Buyer agrees to purchase from
Seller, and Seller agrees to sell,
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transfer, convey, and deliver to Buyer, all of the Acquired Assets, free and
clear of all Encumbrances, for the consideration specified below in this Article
II.
2.2 Acquired Assets. At the time of Closing, Seller agrees to
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transfer all right, title, and interest in and to all of intangible, with the
exception of Seller's equity interest in Vision Interactive Co. Ltd., and Buyer
agrees to acquire such assets (collectively the "Acquired Assets"), including,
without limitation, the following:
(a) the Intellectual Property and all goodwill associated therewith,
and rights to protection of interests therein under the laws of all
jurisdictions, including, without limitation, the assignment of patents and
copyright and trademark registrations pursuant to and as listed in the
Intellectual Property Assignment Agreement, included in Exhibit B and
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incorporated herein by reference;
(b) the Contracts listed on Schedule 2.2(b) and all of the rights
thereunder;
(c) all of the rights of Seller provided for in the agreements
between Seller and Buyer listed on Schedule 2.2(c), such agreements to be
superseded and terminated by this Agreement as of the Closing;
(d) the lease and/or sub-lease rights set forth on Schedule 2.2(d);
(e) all accounts receivable, notes, and other receivables associated
with the Business, including, without limitation, the accounts receivable set
forth on Schedule 2.2(e);
(f) claims, deposits, prepayments, refunds, causes of action, chooses
in action, rights of recovery, rights of set off, and rights of recoupment
(including any such item relating to the payment of Taxes) relating to the
Business;
(g) franchises, approvals, permits, licenses, orders, registrations,
certificates, variances, and similar rights obtained from governments and
governmental agencies relating to the Business;
(h) books, records, ledgers, files, documents, correspondence, lists
(including customer lists), product specifications, creative materials,
advertising and promotional materials, studies, reports, and other printed or
written materials relating to the Business;
(i) leaseholds and subleaseholds therein, improvements, fixtures, and
fittings thereon, and easements, rights-of-way, and other appurtenants thereto
(such as appurtenant rights in and to public streets) needed to operate the
Business; and
(j) tangible personal property related to the Business (such as
machinery, equipment, inventories of raw materials and supplies, manufactured
and purchased parts, goods in process and finished goods, furniture, and
automobiles), including, without limitation, the inventory and
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equipment listed on Schedule 2.2(j), which list shall include, as a separate
category, any equipment or materials that have been provided to Seller pursuant
to Contracts and that Buyer may have an obligation to return or make available
to third parties or may otherwise need to complete performance of such
Contracts.
2.3 Assumption of Liabilities. On and subject to the terms and
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conditions of this Agreement, at the Closing Buyer agrees to assume and become
responsible for the following Liabilities ("Assumed Liabilities"), but will not
otherwise assume or have any responsibilities with respect to obligations or
liabilities of Seller.
(a) all Liabilities of Seller set forth on Schedule 2.3, as such may
be adjusted to reflect changes in the scheduled liabilities arising in the
normal course of business from October 31, 2001 to December 31, 2001, such
adjustments to include a downward adjustment for those employee liabilities
relating to Seller's employees who are not hired by Buyer and reasonable
adjustments arising from Buyer's due diligence review of such liabilities; and
(b) all obligations of Seller under the Contracts listed on Schedule
2.2 (g) arising following the Closing Date;
Provided, however, that the Assumed Liabilities shall not include: (i)
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any Liability of Seller for Taxes; (ii) any obligations of Seller arising prior
to or as of the Closing Date with the exception of those liabilities listed in
Schedule 2.3; (iii) any obligation of Seller to indemnify any person or entity
by reason of the fact that such person or entity was a director, officer,
employee, or agent of Seller or was serving at the request of Seller as a
partner, trustee, director, officer, employee, or agent of another entity
(whether such indemnification is for judgments, damages, penalties, fines,
costs, amounts paid in settlement, losses, expenses, or otherwise and whether
such indemnification is pursuant to any statute, charter document, bylaw,
agreement, or otherwise); and (iv) any Liability of Seller for costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby.
2.4 Earnout Payment. Buyer agrees to pay to Seller certain Earnout
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Payments in consideration for the transfer of Acquired Assets. Seller may earn
consideration ("Earnout") in the form of annual earnout payments (each an
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"Earnout Payment") depending on the ability of the Buyer to earn revenues from
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facial recognition technology and products during the twelve-and-a-half (12.5)
years dating from the Closing Date (the "Earnout Period").
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(a) Seller shall be entitled to receive a payment of the lesser of:
(a) 3.1 % of FR Revenue each year (or half year for the final portion of the
Earnout Period) during the Earnout Period; and (b) $27,500,000 in total over the
Earnout Period. The Earnout Payments shall be payable to Seller within 120 days
of the end of each year of the Earnout Period.
(b) In the event of a sale of all or substantially all of the assets
that generate FR Revenue, the purchaser(s) of such assets shall assume the
Earnout obligations and shall be required to provide adequate assurances to
Seller that these obligations will be performed by such purchaser(s).
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(c) In the event of a sale of a material amount but not all or
substantially all of the assets that generate FR Revenue, or a material purchase
of assets that generate FR Revenue, Buyer and Seller shall agree on a reasonable
adjustment to the Earnout, including, where appropriate, reasonable guidelines
for determining the calculations of FR Revenue relating to the change in assets,
to reflect the change in projected Earnout Payments and to reflect the third
party costs and royalty payments, if any, associated with any such purchase of
assets.
(d) If Seller disputes Buyer's determination of any Earnout calculation, it
shall notify Buyer in writing within thirty (30) days of its receipt of the
Buyer's determination. In the event of such a dispute, including any disputes
concerning the reasonableness of proposed adjustments to the Earnout, Seller and
Buyer shall first use their best efforts to resolve the dispute. If the dispute
cannot be resolved within ten (10) days, it shall be submitted to an independent
public accounting firm on which the Parties mutually agree (the "Accountant")
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for resolution. Within 30 days after submission of the dispute, the Accountant
shall determine the Earnout calculation in accordance with this Agreement. The
Accountant's determination shall be final and binding upon the Parties, and the
Buyer shall immediately pay to the Seller any additional amount of Earnout due
as a result of the Accountant's determination. The fees and expenses of
Accountant shall be shared equally by Buyer and Seller.
2.5 The Closing. The closing of the transactions contemplated by this
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Agreement (the "Closing") shall take place at the offices of Hill & Xxxxxx, A
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Professional Corporation, in Boston, Massachusetts, on January 10, 2002 or such
other date as the Parties may mutually determine (the "Closing Date").
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ARTICLE III
ORGANIZATION
3.1 Organizational Restrictions During the Transition Period. During the
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two year period following the Closing Date (the "Transition Period"), Buyer
agrees to take the following actions, which actions are intended to preserve,
develop and fully exploit Seller's expertise and customer relationships relating
to the Business and to facilitate the full integration of the Business into
Buyer's current operations, provided only that Buyer shall have the ability to
respond to changing business necessities with appropriate organizational
adjustments:
(a) Create and maintain the FR Business Unit and the Secure ID Business
Unit as two separate reporting units for reporting and strategic planning
purposes; and
(b) Maintain the operations of the Business in a way which facilitates the
integration of Seller's expertise and relationships, including the customer
relationships between Seller and government customers, into Buyer's general
corporate organization, including adoption of the organizational structure in
substantially the form provided for in Exhibit C; and
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(c) Use reasonable business efforts to recruit a seasoned executive who
will have the capability of managing the FR Business Unit, including
capabilities in both the federal
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government and commercial markets, provided that Xxxxxx Xxxxxxxxx shall act as
the manager of the FR Business Unit until an appropriate replacement for such
position can be found.
3.2 Modification. Seller may provide recommendations on changes to the
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organizational structure and operations of the Business during the first year of
the Transition Period and Buyer agrees to use reasonable commercial efforts to
implement such changes, subject to approval from Buyer's board of directors.
Buyer may make material changes to the organizational structure and operations
of the Business during the second year of the Transition Period, and to the
entire organizational structure with the exception of the Business during the
full Transition Period, provided that Buyer provides Seller with prior notice of
the proposed changes and a reasonable opportunity to comment on the changes.
Notwithstanding the provisions relating to organizational structure and
employment provided for in this Agreement, Buyer may make organizational and
employment changes required out of business necessity at any time in response to
changing market conditions during the full Transition Period, provided that
Buyer can reasonably demonstrate to Seller that such changes are required to
sustain competitiveness in Buyer's market place.
3.3 Chairman of the Board. Xxxxx Xxxxxx will occupy the position of
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Chairman of the Board of Directors of the Buyer during the Transition Period.
3.4 Termination of Organizational Restrictions. Upon the earlier of the end
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of the Transition Period or a Change in Control of the Buyer the restrictions
provided for in this Article III will terminate and Buyer will have no further
restrictions on its organizational structure pursuant to this Article III.
3.5 Employment Contracts for Key Personnel. Buyer agrees to enter into
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employment agreements with a minimum one-year term in forms mutually agreed to
by Buyer and Seller with the following individuals for the positions specified
as follows: Xxx Xxxx (senior engineering management position within FR Business
Unit) and Xxxx Xxxxxx (senior business development position within FR Business
Unit). Buyer agrees to enter into consulting agreements in forms mutually agreed
to by Buyer and Seller with Xxxxxx Xxx and Xxxxx Xxxxxx. The consulting
agreements will provide for a payment of $125,000 per consultant per year for a
term of ten (10) years, in consideration for performance of services for the
Buyer, such agreements to terminate upon the earlier of ten years or the
full-time employment outside of the Buyer, death or disability of the
consultant, provided that consulting agreements may also be terminated for gross
negligence or willful misconduct of the consultants. The forms of employment
agreements and consulting agreements shall be agreed to by Buyer and Seller
prior to the Closing Date.
3.6 Employment of Other Seller Personnel. Buyer agrees to interview and
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consider offering employment to each of Seller's current employees listed on
Schedule 3.6. Buyer shall determine which of these employees Buyer will employ
within a reasonable period of time subsequent to the Closing Date based on
Buyer's evaluation of the past performance of these employees, their current
skills, affordability, and business need, and shall use reasonable commercial
efforts to hire those employees with expertise in the Business. Buyer will not
assume any obligations or liabilities relating to employees of Seller, such as
accrued bonuses or severance payment obligations, arising on or before the
Closing Date, except that Buyer will
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provide those of Seller's employees that Buyer hires with service credit for
years of employment by Seller for purposes of determining benefits and will
assume those accrued employee benefits listed on Schedule 2.3 for those of
Seller's employees on Schedule 3.6 that are hired by Buyer after the Closing
Date, up to the maximum amount reflected on Schedule 2.3. Buyer agrees to use
reasonable commercial efforts to provide those of Seller's employees that are
hired by Buyer with benefits and employment terms that are not materially less
favorable than the benefits and employment terms currently provided to such
employees by Seller.
3.7 Services. Buyer and Seller shall cooperate in the transition of the
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Business to Seller. Buyer and Seller shall agree on a plan for coordinating the
development and transfer to Buyer of an MIS, telephone and related systems (the
"System"), and all expenditures on the System or commitments to purchase
equipment related to the System shall be subject to prior approval by Buyer.
Seller shall have the option of purchasing MIS, network and human resource
services and subleasing space from Buyer pursuant to an annual services
agreement that shall be mutually agreed to by the Parties, such agreement to be
renewable for up to five years and the terms of which shall be renegotiated on
an annual basis to reflect the costs of such Services.
3.8 Confidentiality. Seller agrees not to disclose, use or copy any
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confidential information of Buyer, including confidential information being
transferred to Buyer pursuant to this Agreement, except as Buyer may authorize
or direct, and except as to information which Seller can establish: (a) was, on
the date of this Agreement, generally known to the public; or (b) became
generally known to the public after the date of this Agreement other than as a
result of the act or omission of Seller or its employees, consultants or agents;
or (c) Seller lawfully received from a third party after the Closing Date
without that third party's breach of agreement or obligation of trust; or (d)
Seller is required to disclose as a matter of law.
3.9 Non-Competition. Seller agrees not to engage in a business that is
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competitive to the Business, for a period of five (5) years dating from the
Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller represents and warrants to Buyer that the statements contained in
this Article IV are correct and complete as of the date of this Agreement,
except as set forth in the disclosure schedule accompanying this Agreement and
initialed by the Parties (the "Disclosure Schedule"), and that such statements
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will be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Article IV), except as set forth on the Disclosure Schedule as
the same may be amended on the Closing Date. The Disclosure Schedule will be
arranged in sections corresponding to the numbered and lettered sections
contained in this Article IV.
4.1 Organization of Seller. Seller is a corporation duly organized, validly
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existing, and in good standing under the laws of the jurisdiction of its
incorporation. Seller is in good standing in each jurisdiction in which it is
qualified to do business and Seller is not required to be
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licensed or qualified to conduct its business or own its property in any other
jurisdiction where the failure to be so licensed or qualified would have a
material adverse effect.
4.2 Authorization of Transaction. Seller has full right, power, authority
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and capacity to execute and deliver this Agreement and the Related Agreements to
which it is or may become a party, and to perform its obligations hereunder and
thereunder. The execution, delivery and performance of this Agreement and the
Related Agreements have been duly authorized by Seller's Board of Directors.
This Agreement and the Related Agreements to which Seller is or may become a
party constitute (or will constitute when executed or delivered) the valid and
legally binding obligations of Seller, enforceable in accordance with their
respective terms.
4.3 Noncontravention. To the best of Seller's Knowledge, neither the
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execution and the delivery of this Agreement and the Related Agreements, nor the
consummation of the transactions contemplated hereby and thereby (including the
assignments and assumptions referred to in Article II above), will (i) violate
any constitution, statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge, or other restriction of any government, governmental
agency, or court to which Seller is subject or any provision of the charter or
bylaws of Seller, or (ii) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other arrangement to which
Seller is a party or by which it is bound or to which any of its assets is
subject except as described in the Disclosure Schedule. Seller does not need to
give any notice to, make any filing with, or obtain any authorization, consent,
or approval of any government or governmental agency, with the exception of
government actors in their role as customers under Contracts, in order for the
Parties to consummate the transactions contemplated by this Agreement.
4.4 Brokers' Fees. Seller has no Liability or obligation to pay any fees or
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commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
4.5 Title to Assets. Seller has good and marketable title to, or a valid
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leasehold interest in, the properties and assets used by it, located on its
premises, or shown on the Balance Sheet, relating to the Business, free and
clear of all Encumbrance, except as otherwise indicated in the Disclosure
Schedule.
4.6 Financial Statements. Attached hereto as Exhibit D are the following
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financial statements of Seller (collectively the "Financial Statements"): (i)
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the unaudited balance sheet and statement of income as of and for the ten (10)
months ended October 31, 2001; and (ii) audited balance sheets and statement of
income as of and for the fiscal year end December 31, 2000. The Financial
Statements (including the notes thereto) have been prepared in accordance with
GAAP applied on a consistent basis throughout the periods covered thereby,
present fairly the financial condition of Seller as of such dates and the
results of operations of Seller for such periods, and are correct and complete;
provided, however, that the Financial Statements identified in clause (i) above
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are subject to normal year-end adjustments (which will not be material
individually or in the aggregate) and lack footnotes and other presentation
items.
9
4.7 Undisclosed Liabilities. To the best of Seller's knowledge, Seller
-----------------------
does not have any Liability relating to the Business (and there is no basis for
any present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand against any of them giving rise to any Liability),
except for Liabilities set forth on the face of the Balance Sheet.
4.8 Legal Compliance. To the best of Seller's knowledge, Seller has
----------------
complied in all material respects with all applicable laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof). Seller has received no notice from any such governmental
authority of any such violation or alleged violation, and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, demand, or notice
has been filed or commenced against it alleging any failure so to comply.
4.9 Tax Matters. Seller has filed in accordance with applicable law all
-----------
Tax Returns that it was required to file, all such Tax Returns were correct and
complete in all respects, and all Taxes owed by Seller (whether or not shown on
any Tax Return) have been paid.
4.10 Real Property. Seller owns no real property. Schedule 2.2(d) lists and
-------------
describes all real property leased or subleased to Seller relating to the
Borrower. Seller has not received notice of any pending or likely reassessment,
the lease or sublease is legal, valid, binding, enforceable, and in full force
and effect; no party to the lease or sublease is in breach or default, and no
event has occurred which, with notice or lapse of time, would constitute a
breach or default or permit termination, modification, or acceleration
thereunder; and all facilities and improvements leased or subleased thereunder,
including the structural elements and mechanical systems of such facilities and
related parking and loading areas, are in good operating condition and repair.
4.11 Intellectual property. Seller owns or has the right to use pursuant to
---------------------
license, sublicense, agreement, or permission all Intellectual Property
necessary for the operation of the Business. Each item of Intellectual Property
owned or used by Seller immediately prior to the Closing hereunder will be owned
or available for use by Buyer on identical terms and conditions immediately
subsequent to the Closing hereunder. Seller has not interfered with, infringed
upon, misappropriated, or otherwise come into conflict with any Intellectual
Property rights of third parties. Seller represents that with respect to the
Intellectual Property relating to the Business, Seller possesses all right,
title, and interest in and to the item, free and clear of any Encumbrance,
license, or other restriction; the item is not subject to any outstanding
injunction, judgment, order, decree, ruling, or charge; and no action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand is
pending, except as specified on Section 4.11 of the Disclosure Schedule. Section
4.11 of the Disclosure Schedule identifies each item of Intellectual Property
that Seller uses pursuant to license, sublicense, agreement, or permission, and
Seller represents that its rights with respect to this Intellectual Property are
legal, valid, binding, enforceable and in full force and effect and will
continue to be legal, valid, binding, enforceable, and in full force and effect
on identical terms following the consummation of the transactions contemplated
hereby (including the assignments and assumptions referred to in Article II
above).
10
4.12 Tangible Assets. Seller owns or leases all buildings, machinery,
---------------
equipment, and other tangible assets necessary for the conduct of its Business
as presently conducted and as presently proposed to be conducted, including any
tangible assets associated with performance of obligations under the contracts
that are part of the Assumed Liabilities. Each such tangible asset is free from
any material defects, has been maintained in accordance with normal industry
practice, and is in reasonably good operating condition and repair (subject to
normal wear and tear).
4.13 Inventory and Equipment. The inventory of Seller relating to the
-----------------------
Business as listed on Schedule 2.2(j) consists of raw materials and supplies,
manufactured and purchased parts, goods in process, and finished goods, all of
which is merchantable. Schedule 4.13 sets forth the equipment and materials
purchased pursuant to Contracts or otherwise provided by customers or other
third parties relating to the Business, including equipment and materials
purchased pursuant to the TSWG contract, and except as indicated in the
Schedule, all of this equipment and material has been provided to Buyer in good
working condition.
4.14 Contracts. Seller has delivered to Buyer a correct and complete
---------
copy of each material written agreement relating to the Business and has
provided a complete list of such agreements in Schedule 2.2(b). With respect to
each such agreement: (i) the agreement is legal, valid, binding, enforceable,
and in full force and effect; (ii) the agreement will continue to be legal,
valid, binding, enforceable, and in full force and effect on identical terms
following the consummation of the transactions contemplated hereby (including
the assignments and assumptions referred to in Article II above); (iii) no party
is in breach or default, and no event has occurred which with notice or lapse of
time would constitute a breach or default, or permit termination, modification,
or acceleration, under the agreement; (iv) there are no balances outstanding on
the agreement and Seller has not accelerated the collection of receivables or
unreasonably deferred accounts payable under such agreements; and (v) no party
has repudiated any provision of the agreement. All material costs and
obligations associated with the Contracts have been disclosed to Buyer.
4.15 Notes and Accounts Receivable. All notes and accounts receivable
-----------------------------
of Seller are reflected properly on their books and records, and are valid
receivables subject to no setoffs or counterclaims.
4.16 Insurance. Section 4.16 of the Disclosure Schedule sets forth the
---------
insurance policies that Seller has in place relating to the Business (including
policies providing property, casualty, liability, and workers' compensation
coverage and bond and surety arrangements), which insurance policies are legal,
valid, binding, enforceable, and in full force and effect and will continue to
be legal, valid, binding, enforceable, and in full force and effect on identical
terms following the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in Article II above).
Seller represents that Seller is not in breach or default (including with
respect to the payment of premiums or the giving of notices), and no event has
occurred which, with notice or the lapse of time, would constitute such a breach
or default, or permit termination, modification, or acceleration, under the
policy and that no party to the policy has repudiated any provision thereof.
11
4.17 Litigation. To the best of Seller's knowledge, Seller is not
----------
subject to any outstanding injunction, judgment, order, decree, ruling, or
charge, and is not a party or threatened to be made a party to any action, suit,
proceeding, hearing, or investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator relating to the Business.
4.18 Product Warranty and Liability. Each product manufactured, sold,
------------------------------
or delivered by Seller in connection with the Business has been in conformity
with all applicable contractual commitments and all express and implied
warranties, and Seller has no Liability (and there is no basis for any present
or future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against it giving rise to any Liability) for replacement or
repair thereof or other damages in connection therewith. No product
manufactured, sold, or delivered by Seller is subject to any guaranty, warranty,
or other indemnity beyond the applicable standard terms and conditions of sale
or lease. Seller has no Liability (and there is no basis for any present or
future action, suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand against any of them giving rise to any Liability) arising out
of any injury to individuals or property as a result of the ownership,
possession, or use of any product manufactured, sold, or delivered by Seller.
4.19 Employee Benefits. Except as set forth on Schedule 4.19 hereto,
-----------------
Sellers do not have any pension or other employee benefit plans which are
subject to the provisions of Title IV of the Employee Retirement Income Security
Act of 1974, as amended, the application of which could give rise to direct or
contingent liabilities by Buyer.
4.20 Disclosure. The representations and warranties contained in this
----------
Article IV do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Article IV not misleading.
ARTICLE V
REPRESENTATIVES AND WARRANTIES OF BUYER
---------------------------------------
Buyer represents and warrants to Seller that the statements contained
in this Article V are correct and complete as of the date of this Agreement, and
that such statements will be correct and complete as of the Closing Date (as
though made then and as though the Closing Date were substituted for the date of
this Agreement throughout this Article V) except as may be set forth in any
supplemental disclosure delivered by Buyer to Seller on or prior to Closing
Date.
5.1 Organization of Buyer. Buyer is a corporation duly organized,
---------------------
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation. Buyer is duly licensed or qualified to do business as a foreign
corporation in every jurisdiction where the failure to be so licensed or
qualified would have a material adverse effect.
5.2 Authorization of Transaction. Buyer has full right, power and
----------------------------
authority (including full corporate power and authority) to execute and deliver
this Agreement and the Related Agreements to which it is or may become a party
and to perform its obligations hereunder and thereunder. This Agreement and the
Related Agreements to which Buyer is or may become a
12
party constitute (or will constitute when executed and delivered) the valid and
legally binding obligations of Buyer, enforceable in accordance with their
respective terms.
5.3 Noncontravention. Neither the execution and the delivery of this
----------------
Agreement and the Related Agreements, nor the consummation of the transactions
contemplated hereby or thereby (including the assignments and assumptions
referred to in Article II above), will (a) violate any constitution, statute,
regulation, rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which Buyer is
subject or any provision of its charter or bylaws or (b) conflict with, result
in a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel, or
require any notice under any agreement, contract, lease, license, instrument, or
other arrangement to which Buyer is a party or by which it is bound or to which
any of its assets is subject. Buyer does not need to give any notice to, make
any filing with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties to consummate the
transactions contemplated by this Agreement (including the assignments and
assumptions referred to in Article II above).
5.4 Brokers' Fees. Buyer has no Liability or obligation to pay any
-------------
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement.
ARTICLE VI
PRE-CLOSING COVENANTS
---------------------
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
6.1 General. Each of the Parties will use all reasonable efforts to
-------
take all action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
Article VII below).
6.2 Notices and Consents. Seller will give any notices to third
--------------------
parties, and Seller will use all reasonable efforts to obtain any third party
consents that Buyer reasonably may request in connection with the matters
referred to in Section 4.3 above and as otherwise required to transfer the
Acquired Assets to the Buyer. Each of the Parties will give any notices to, make
any and further filings with, and use all reasonable efforts to obtain any
authorizations, consents, and approvals of governments and governmental agencies
in connection with the matters referred to in Section 4.3 and Section 5.3 above.
Seller will hold all Contracts on behalf of and for the benefit of Buyer until
required consents to assign such Contracts have been obtained.
6.3 Operation of Business. Seller will not engage in any practice,
---------------------
take any action, or enter into any transaction outside the ordinary course of
business of the Business. Seller will keep its business and properties
substantially intact, including its present operations, physical facilities,
working conditions, and relationships with lessors, licensers, suppliers,
customers, and
13
employees. Seller will pay any balances outstanding on Contracts prior to the
Closing, with the exception of the liabilities included in Schedule 2.3, and
will not enter into any material contracts or incur any material expenses
relating to the Business without Buyer's consent prior to the Closing.
6.4 Full Access. Seller will permit representatives of Buyer to have
-----------
full access at all reasonable times, and in a manner so as not to interfere with
the normal business operations of Seller, to all premises, properties,
personnel, books, records (including Tax records), contracts, and documents of
or pertaining to Seller's Business.
6.5 Notice of Developments. Each Party will give prompt written notice
----------------------
to the other Party of any material adverse development causing a breach of any
of its own representations and warranties in Article IV and Article V above. No
disclosure by any Party pursuant to this Section 6.5, however, shall be deemed
to amend or supplement the Disclosure Schedule or to prevent or cure any
misrepresentation, breach of warranty, or breach of covenant.
ARTICLE VII
CONDITIONS TO OBLIGATION TO CLOSE
---------------------------------
7.1 Conditions to Obligation of Buyer. The obligation of Buyer to
---------------------------------
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article IV
above (taken collectively and individually) shall be true and correct
in all material respects at and as of the date of the Agreement, and
such representation and warranties (taken collectively and
individually) shall be true and correct in all material respects at and
as of the Closing Date, without giving any effect to any amendment to
Disclosure Schedule delivered by Seller to Buyer after the date of this
Agreement;
(b) Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(c) No action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (i) prevent consummation of any of the
transactions contemplated by this Agreement, (ii) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation, or (iii) affect adversely the right of Buyer to own the
Acquired Assets, or to operate the former businesses of Seller (and no
such injunction, judgment, order, decree, ruling, or charge shall be in
effect);
(d) Seller and Buyer shall have executed and delivered the
Xxxx of Sale and Assumption of Liabilities attached hereto as Exhibit E
---------
and Exhibit F, and all additional
---------
14
transfer documents required to validly assign to Buyer, in recordable
form, all Intellectual Property of Seller;
(e) Seller shall have satisfied or made arrangements to
satisfy all obligations for services rendered to and goods received by
Seller prior to the Closing Date, with the exception of the liabilities
included on Schedule 2.3, and shall retain any obligations related to
such services and goods that have not been satisfied; and
(f) All actions to be taken by Seller in connection with
consummation of the transactions contemplated hereby and all
certificates, opinions, instruments, and other documents required to
effect the transactions contemplated hereby will be satisfactory in
form and substance to Buyer.
Buyer may waive any condition specified in this Section 7.1 if it executes a
writing so stating at or prior to the Closing.
7.2 Conditions to Obligation of Seller. The obligation of Seller to
----------------------------------
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(a) the representations and warranties set forth in Article V
above (taken collectively and individually) shall be true and correct
in all material respects at and as of the date of this Agreement, and
such representations and warranties (taken collectively and
individually) shall be true and correct in all material respects at and
as of the Closing Date, without giving any effect to any supplemental
disclosure delivered by Buyer to Seller after the date of this
Agreement;
(b) Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(c) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency
of any federal, state, local, or foreign jurisdiction or before any
arbitrator wherein an unfavorable injunction, judgment, order, decree,
ruling, or charge would (i) prevent consummation of any of the
transactions contemplated by this Agreement or (ii) cause any of the
transactions contemplated by this Agreement to be rescinded following
consummation (and no such injunction, judgment, order, decree, ruling,
or charge shall be in effect);
(d) the relevant parties shall have entered into mutually
agreed to employment and consulting agreements as provided in Article
III;
(e) all actions to be taken by Buyer in connection with
consummation of the transactions contemplated hereby will be
satisfactory in form and substance to Seller.
Seller may waive any condition specified in this Section 7.2 if it executes a
writing so stating at or prior to the Closing.
15
ARTICLE VIII
POST-CLOSING COVENANTS
----------------------
The Parties agree as follows with respect to the period following the
Closing.
8.1 Further Assurances. In case at any time after the Closing any
------------------
further action is necessary or desirable to effectively transfer and assign to,
and vest in, Buyer each of the Acquired Assets, Seller will take such further
action without further consideration (including the execution and delivery of
such further instruments and documents) as Buyer reasonably may request. Seller
shall be responsible for supplying or replacing any of the equipment and
materials that were provided to Seller by customers or other third parties or
purchased or provided pursuant to Contracts included in the Acquired Assets that
Buyer did not receive in good working order at the Closing.
8.2 Use of Name "Xxx". Seller acknowledges and agrees that Buyer shall
----------------
have the exclusive right to use the trade name and trademark XXX SECURITY
SYSTEMS for a period of three (3) years dating from the Effective Date but Buyer
shall not otherwise have any rights to or interest in the XXX SECURITY SYSTEMS
xxxx.
8.3 Audit Rights. During the Earnout Period, on an annual basis at
------------
Seller's expense, at mutually agreeable times, Seller or its agent or
representative will be provided reasonable access during normal business hours
to Buyer's books and records relating to FR Revenue for purposes of inspecting
and auditing books and records relating to the Earnout provided for in this
Agreement.
8.4 Vision Interactive License. Buyer is assuming all of Seller's
--------------------------
rights under a license agreement between Vision Interactive Co., Buyer and
Seller dated April 1, 2001 ("License") pursuant to this Agreement. Buyer agrees
to provide Seller with prior written notice of any proposed changes to the
License and agrees not to take any action that has a material adverse effect on
Seller's equity interest in Vision Interactive Co., provided, however, that
Buyer retains the right, in its sole discretion, to exercise any of its rights
or remedies under the License.
8.5 Consents. Seller shall use reasonable speed and effort to
--------
procure all of the third party consents or otherwise satisfy Seller's
requirements as specified in Section 4.3 above, including, without limitation,
the consent required under the license agreement between Facia Reco Associates
and Seller and under the TSWG contract between the Department of Defense and
Seller, within a reasonable period after the Closing Date. Until required third
party approvals are obtained, Seller agrees to hold any assets, including
Contracts, included in the Acquired Assets that require such approval on behalf
of, at the direction of, and for the benefit of Buyer. Any asset, including the
Contracts, that would otherwise be included in the Acquired Assets but the
assignment or attempted assignment of which would be invalid or would constitute
a breach of contract, shall be held and/or received by Seller for the use and at
the direction and for the benefit of Buyer, provided that Seller shall be
responsible for ensuring that the benefits of and burdens under such Contracts
shall flow to the Buyer.
16
ARTICLE IX
TERMINATION
-----------
9.1 Termination of Agreement. Either Party may terminate this
------------------------
Agreement only upon a material breach of the terms of this Agreement by the
other Party prior to the Closing Date, provided that the breaching Party shall
be provided with written notice and ten (10) days to cure.
9.2 Effect of Termination. Each Party's right of termination under
---------------------
Section 9.1 above is in addition to any other rights such Party may have under
this Agreement or otherwise, and any exercise of such right of termination will
not be an election of remedies. If any Party terminates this Agreement pursuant
to Section 9.1 above, all rights and obligations of the Parties hereunder shall
terminate without any Liability of any Party to any other Party, except for any
Liability of any Party then in breach.
ARTICLE X
MISCELLANEOUS
-------------
10.1 No Third-Party Beneficiaries. This Agreement shall not confer any
----------------------------
rights or remedies upon any third party other than the Parties and their
respective successors and permitted assigns.
10.2 Entire Agreement. This Agreement and the Related Agreements
----------------
constitute the entire agreement between the Parties and supersede any prior
understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof. This Agreement supersedes and replaces in their entirety all prior
agreements between Buyer and Seller relating to the subject matter hereof.
10.3 Succession and Assignment. This Agreement shall be binding upon
-------------------------
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. Buyer shall not sell all or substantially all
of Buyer's assets or outstanding capital stock or all or substantially all of
Buyer's FR Business during the Earnout Period unless either: (a) Buyer obtains
the consent of the Seller to the proposed acquisition; or (b) the purchaser(s)
have a net worth at least as large as the net worth of Seller at the time of the
proposed acquisition.
10.4 Notices. All notices, consents, requests, waivers, demands,
-------
claims, and other communications hereunder must be in writing. Any notice,
consent, request, waiver, demand, claim, or other communication hereunder shall
be deemed duly given if it is delivered by hand or if (and then two business
days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below, provided that in either case a copy is mailed by registered mail, return
receipt requested, to the appropriate addresses set forth at the top of this
Agreement. Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set
17
forth above using any other means (including personal delivery, expedited
courier, messenger service, telecopy, telex, ordinary mail, or electronic mail),
with a copy to the appropriate addresses set forth below delivered by the same
means, but no such notice, request, demand, claim, or other communication shall
be deemed to have been duly given unless and until it actually is received by
the intended recipient. Any Party may change the address to which notices,
requests, demands, claims, and other communications hereunder are to be
delivered by giving the other Parties notice in the manner herein set forth.
10.5 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the domestic laws of the Commonwealth of Massachusetts
without regard to conflicts of laws principles.
10.6 Amendments and Waivers. No amendment of any provision of this
----------------------
Agreement shall be valid unless the same shall be in writing and signed by Buyer
and Seller. No waiver by any Party of any default, misrepresentation, or breach
of warranty or covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
10.7 Severability. Any term or provision of this Agreement that is
------------
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
10.8 Expenses. Buyer and Seller will each bear their own costs and
--------
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
10.9 Incorporation of Exhibits and Schedules. The Exhibits and
---------------------------------------
Schedules identified in this Agreement and the Disclosure Schedule are
incorporated herein by reference and made a part hereof.
10.10 Specific Performance. Each of the Parties acknowledges and agrees
--------------------
that the other Party would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, each of the Parties agrees that
the other Party shall be entitled to an injunction or injunctions to prevent
breaches of the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action instituted in any
court of the United States or any state thereof.
10.11 Survival of Representations and Warranties. All of the
------------------------------------------
representations and warranties contained in Article IV and Article V of this
Agreement shall survive the Closing and continue in full force and effect
forever thereafter (subject to any applicable statutes of limitations).
18
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19
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
VIISAGE TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
XXX ACQUISITION CORP. d/b/a
XXX TECHNOLOGIES
BY: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President
20
