Exhibit 2.4
ASSET ACQUISITION AGREEMENT
This Asset Acquisition Agreement ("Agreement") is made and entered into
as of the 10th day of February, 2000, by and between TENERA, Inc., a Delaware
corporation ("Buyer") and SoBran, Inc., an Ohio corporation ("Seller").
RECITALS
Buyer desires to purchase substantially all assets of the
Internet-based development and support services business of the Seller
("Internet Business"), and Seller desires to sell said assets to Buyer on the
terms and conditions hereinafter set forth.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein, the parties to this Agreement hereby agree as
follows:
1. PURCHASE AND SALE OF ASSETS
1.1. Sale and Transfer of Assets. Subject to the terms and conditions set
forth herein and as of the date of "Closing" (as hereinafter defined),
Seller hereby agrees to sell, transfer, convey and assign to Buyer the
entire right, title, and interest of Seller in and to substantially
all of the assets of the Internet Business including the assets and
properties described below (the "Assets"), as the same shall exist on
the Closing Date (as hereinafter defined), free and clear of all
liens, claims, liabilities, obligations, pledges, encumbrances,
adverse claims and security interests of every kind, nature and
description, except to the extent of those liabilities and obligations
expressly assumed by Buyer hereunder.
i. All of Seller's right, title and interest in and to all
executory customer licenses, contracts and proposals,
which shall be described on Schedule 1.1.i. attached
hereto (provided, however, that such customer consents in
writing to the assignment and transfer thereof to Buyer),
all work in process with respect thereto, and all rights
and preferences for any reasonable extensions on contracts
relating to current work being performed at the same sites
(collectively, the "Contracts");
ii. Those fixed operating assets specifically selected by the
Buyer, including the furniture and computer hardware and
software (the "Tangible Fixed Assets") located at the
Seller's offices in Knoxville, Tennessee, which the
parties agree are in good operating condition, all of
which are identified on Schedule 1.1.ii attached hereto;
iii. All of the goodwill, trade secrets, proprietary and
technical data, intellectual property rights, know-how,
inventions, discoveries and trade names pertaining to or
used in connection with the Internet Business and the
Contracts including, without limitation, those identified
on Schedule 1.1.iii attached hereto;
iv. All of Seller's right, title, interest, goodwill, trade
secrets, proprietary and technical data, intellectual
property rights, know-how, inventions, discoveries and
trade names pertaining to or used in connection with the
ITRAC software program including the source code, object,
and all copies thereof, and all licenses or sublicenses
relating thereto;
v. All business records related to or pertaining to the
Assets including, without limitation, all originally
executed copies of the Contracts and copies of all related
records, all sales data, work sheets, accounts, bids,
supplier records, drawings, designs, specifications,
process information, performance data, software, programs
and all other data, documents, discs, tapes, information
and other records relating to or applicable to the
Contracts and the leases described in this Section 1.1,
provided, however, that Seller may retain copies thereof;
vi. All lease deposits and similar assets which are assignable
and can be utilized by Buyer in connection with the
Assets;
vii. All of Seller's right, title and interest in or to the
names of all Internet URL addresses owned by Seller other
than "XxXxxx-xxx.xxx" and "XxXxxx.xxx.xxx", which shall be
described on Schedule 1.1.vii attached hereto;
viii. All of Seller's right, title and interest in or to TENERA
XxXxxxx.Xxx, LLC, a limited liability company, including,
without limitation, its equity ownership interest and its
obligations and rights as a provider of maintenance,
enhancement, and operational management of the XxXxxxx.Xxx
Corporate Distance Learning Center; and
ix. A sublease to Buyer approved by the lessor of the Seller's
premises ( the "Premises") as described in Schedule 1.1.ix
attached hereto.
1.2. Assets Not Transferred. Seller shall retain all cash, accounts
receivables and other assets not otherwise described in Section 1.1
hereof and the same are expressly excluded from the property sold to
Buyer.
1.3. Purchase Price. As payment for the sale and transfer of the Assets by
Seller to Buyer, upon the Closing Date, Buyer agrees to assume the
Assumed Liabilities (as hereinafter defined in Section 2.2) and agrees
to pay Seller the sum of Three Hundred Six Thousand Dollars ($306,795)
(the "Purchase Price"), which with respect to that portion of the
Purchase Price allocated pursuant to Section 1.5 hereunder to the
Tangible Fixed Assets is the net book value of the Tangible Fixed
Assets on the books and records of Seller as of January 31, 2000,
determined in accordance with generally accepted accounting
principles.
1.4. Method of Payment. Buyer shall deliver to Seller at the Closing the
Purchase Price in immediately available funds.
1.5. Allocation of Purchase Price. The parties hereto agree that the
Purchase Price shall be allocated among the Assets as set forth in
Schedule 1.5 attached hereto. The parties declare and acknowledge that
these values were determined in good faith in arm's length bargaining.
Each party agrees to report the transaction for income tax purposes in
accordance with the allocation recited herein and that it will not
take any position inconsistent with this allocation except with the
written consent of the other party hereto. However, if the Internal
Revenue Service or the Franchise Tax Board takes a position with
respect to one party to this Agreement that is inconsistent with the
allocation herein, the other party may take a protective position
adopting the taxing authority's contention until the controversy is
finally resolved.
1.6. Sales Tax. Seller, on the one hand, and Buyer on other hand, hereby
agree to each pay one-half of any and all state and local sales taxes
which may be imposed upon the sale of Assets, however, nothing herein
shall be construed to be an agreement to pay income taxes of the other
Seller shall pay its prorated portion of state and local personal
property taxes payable with respect to the Assets up to and including
the Closing Date. Buyer shall have no responsibility concerning any
sales, property, business, occupation or similar tax or with respect
to taxes of any kind related to the Assets for any period prior to and
including the Closing. Seller shall have no responsibility concerning
any sales, property, business, occupation or similar tax or with
respect to taxes of any kind related to the Assets for any period
after the Closing.
1.7. Agreement to Subcontract. Until Seller shall have obtained the written
consent of the customer with respect to any Contract included on
Schedule 1.1.i hereto, Seller hereby agrees as of the Closing Date to
subcontract all services otherwise to be performed by Seller under all
such Contracts to Buyer at the billing/performance rates specified in
such Contract.
1.8. Agreement as to Certain Contracts. Notwithstanding anything contained
herein to the contrary, but subject to the provisions of Section 1.7
hereof, the parties agree that this Agreement shall not constitute an
agreement to assign any Contract or any claim, right or any benefit
arising thereunder or resulting therefrom if (i) an attempted
assignment thereof without the consent of a third party would
constitute a breach or cause a termination thereof or in any way limit
or otherwise adversely affect the rights of the Buyer or the Seller
thereunder, (ii) such consent has not been obtained by the Closing
Date, and (iii) such Contracts are not, either individually or in the
aggregate, material to the this transaction as determined by Buyer in
its sole discretion. If such consent is not obtained within forty-five
(45) days after the Closing Date, or an attempted assignment thereof
would not be effective or would adversely affect the rights
thereunder, the Seller will cooperate with Buyer in any reasonable
arrangement designed to provide for the enjoyment by Buyer of benefits
under such Contracts.
1.9. Adjustment to Purchase Price. In the event that any Tangible Fixed
Assets cannot be delivered to Buyer, then the Purchase Price shall be
adjusted in accordance with the Seller's net book value of such assets
on the books and records of Seller as of January 31, 2000, and Buyer
reimbursed with respect thereto.
2. NON-ASSUMPTION OF LIABILITIES
2.1. Non-Assumption of Liabilities. It is expressly understood and agreed
that Buyer shall not be liable for and shall not assume any debt,
obligation and/or liability of Seller, whether known or unknown, fixed
or contingent, or whether or not incurred in connection with the
Assets, of any kind or nature other than those specifically assumed by
Buyer in Section 2.2 hereof. Except as set forth in Section 2.2
hereof, those liabilities not assumed by Buyer include, without
limitation, the following:
i. All vendor-related payables of Seller related to any of
the Assets for any and all periods (or portions thereof)
ending on or prior to the Closing Date, a complete list of
which Seller has specified on Schedule 2.1.i attached
hereto;
ii. Any liabilities or obligations of Seller relating to
salaries, wages, incentive compensation, wage withholding
taxes, workers' compensation, FICA, unemployment insurance
or any other compensation whatsoever for employees of
Seller for any and all periods whenever ending, except
with respect to the employees set forth on Schedule 4.1.c,
for any and all periods (or portions thereof) ending on or
prior to the Closing Date:
iii. Any profit-sharing, bonus, deferred compensation, stock
option, stock purchase, group insurance, liability
insurance, vacation pay, sick leave, travel or expense
accounts, allowances or reimbursements, salary
continuation, severance pay, pension, retirement, medical
or other plan, arrangement or agreement of Seller
providing employee benefits for any and all periods
whenever ending, except with respect to the employees set
forth on Schedule 4.1.c, for any and all periods (or
portions thereof) ending on or prior to the Closing Date;
iv. Except as set forth in Section 1.6 any liabilities or
obligations of Seller for federal, state, local or foreign
taxes, assessments, impositions, penalties or interest,
whether or not imposed or measured by income, for any and
all periods (or portions thereof) whenever ending;
v. Any liabilities or obligations of Seller with respect to
any claims, actions, suits or demands, or any legal,
administrative, arbitration or other proceedings or
judgments, with respect to any causes of action arising or
accruing on or before the date of closing; and
vi. For any other liabilities or obligations of Seller
whenever incurred or accrued, except with respect to any
such liabilities which are properly billable to a customer
Contract assumed by Buyer.
2.2. Limited Assumption. Subject to the consummation of the Closing
hereunder, Buyer shall have the benefit of and shall assume on and as
of the Closing Date, and agrees to pay, perform and discharge the
following liabilities of Seller which are accrued immediately prior to
the Closing (the "Assumed Liabilities"):
i. All executory customer Contracts, with respect to which
the customer agrees in writing to such assumption by Buyer
within the time period specified in Section 1.8 hereof, as
identified on Schedule 1.1.i attached hereto;
ii. The performance of all lease obligations of Seller with respect to
sublease listed on Schedule 1.1.ix attached hereto.
3. REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of Seller. Seller hereby warrants and
represents, as of the Closing, the following, the truth and accuracy of
which shall constitute a condition precedent to Buyer's obligations
hereunder:
3.1.a. Organization and Good Standing. SoBran, Inc. is a corporation
duly organized and validly existing under the laws of the State
of Ohio, and has all necessary corporate powers and authority to
carry on its business as now owned and operated. Seller is
qualified as a foreign corporation and in good standing in each
jurisdiction in which the properties owned by it makes such
qualifications necessary, except where the failure to be so
qualified would not have a material adverse effect of the Assets.
3.1.b. Authority of Seller. Seller has the corporate power and is duly
authorized to enter into and consummate this Agreement and to
sell, transfer, assign and convey the Assets to Buyer. The
execution, deliver and consummation of this Agreement and the
consummation of this transaction has been duly authorized, and no
further corporate action will be necessary on the part of Seller
to make this Agreement valid and binding upon Seller in
accordance with its terms.
3.1.c. Title to Assets. Seller is the owner of and, at the Closing, will
have good and marketable title to, each and all of the Assets
free and clear of any mortgages, pledges, liens, charges,
encumbrances, options, claims or security interests of any kind
nature or description. On the Closing Date, all of the Assets
shall be in good operating condition and repair, ordinary wear
and tear excepted.
3.1.d. Trademarks and Patents. There are no trademark, patent or
copyright registrations or applications relating to the operation
of the Internet Business or the Assets or any trade names now
being used by Seller in connection with the Assets. Seller has
not been charged with infringement of any adversely held patent,
trademark, trade name or copyright, or with any other kind of
unfair competition related to any patent, trademark, trade name
or copyright. To the best of sellers current knowledge and
belief, use of Assets by Buyer will not infringe on intellectual
property rights of any third parties.
3.1.e. Employment and Other Contracts. Seller is not a party to any
employment contracts which are not terminable at will, collective
bargaining agreements, or pension, bonus, profit-sharing, stock
option or other agreements or arrangements providing for vested
employee remuneration or benefits with respect to the employees
identified on Schedule 4.1.c hereto.
3.1.f. Compliance with Federal, State and Local Laws. . To the best of
Sellers current knowledge and belief, Seller has complied with
and is not in violation of any applicable federal, state or local
statute, law, regulation or ordinance relative to the Assets and
the execution and consummation of this Agreement is not in
violation of any federal, state or local statute, law regulation
or ordinance, or any charter document of Seller. The leasehold
premises that are a part of the Assets are in compliance with all
necessary licenses and regulations applicable thereto, and all
necessary licenses and permits or orders with respect thereto
have been obtained and are in effect.
3.1.g. Litigation. Seller has not been served with any summons,
compliant or notice to arbitrate and Seller's officers and
directors have no knowledge of any claim, suit, action,
governmental investigation, arbitration, legal, administrative or
other proceeding pending or threatened against or otherwise
relating to the employees set forth on Schedule 4.1.c, the Assets
or the transfer of, nor is Seller aware of any basis for such
claim. Not withstanding Sellers representation herein, Buyer
expressly acknowledges that Seller is currently involved in
litigation with Lockheed-Xxxxxx on a matter that may or may not
involve matters related to the assets subject to this Agreement.
3.1.h. Consents of Third Parties. Except as set forth on Schedule 3.1.h
attached hereto, no approval or consents of any person, entity or
governmental agency (including, without limitation, consents of
customers, lessors, financial institutions, and suppliers) other
than Seller is necessary to any of the transfers, assignments or
conveyances of the Assets to Buyer.
3.1.i. Material Agreements. There is no material default or event that,
with notice or lapse of time or both, would constitute a default
by any party to any of the Contracts or lease being transferred
and assigned to Buyer. Seller has received no notice that any
party to any of such Contract or lease intends to cancel or
terminate any of the Contracts or leases or to exercise any
option or options thereunder.
3.1.j. Material Misstatement or Omissions. No representations or
warranties by Seller in this Agreement nor any document,
statement, certificate or schedule furnished or to be furnished
to Buyer pursuant hereto, contain or will contain any untrue
statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements or facts contained
therein not misleading.
3.1.k. Undisclosed Liabilities. . To the best of Sellers current
knowledge and belief, Seller has no liabilities whatsoever, known
or unknown, asserted or unasserted, liquidated or unliquidated,
accrued, absolute, contingent, or otherwise, and there is no
basis for any claim against Seller in connection with the Assets
for any such liability.
3.1.l. Environmental. To best of Sellers current knowledge and belief,
all of the Assets currently or previously owned, leased,
operated, or used by the Seller, all current or previous
conditions on and uses of the Assets and all current or previous
ownership or operation of the Seller comply and have at all times
complied with, and do not cause, have not caused, and will not
cause liability to be incurred by the Seller under any
Environmental Law. Subject to the foregoing, Seller warrants and
represents the following:
i. Seller has properly obtained and is in compliance with all
Environmental Permits. No deficiencies have been asserted
by any such Government or authority with respect to such
items.
ii. There has been no spill, discharge, leak, leaching,
emission, migration, injection, disposal, escape, dumping,
or release of any kind on, beneath, above, or into the
Premises hereunder or into the environment surrounding the
Premises of any Hazardous Materials.
iii. There are and have been no Hazardous Materials stored,
disposed of, generated, manufactured, refined,
transported, produced, or treated at, upon, or from the
Premises.
iv. No expenditure will be required in order for the Seller to
comply with any Environmental Laws in effect at the time
of the Closing in connection with the operation or
continued operation of the Assets or the Premises in a
manner consistent with the current operation thereof by
the Seller.
3.1.m. Taxes. The Assets are and will not be encumbered by any Liens arising
out of any unpaid Taxes and there are no grounds for the assertion or
assessment of any Liens against the Assets in respect of any taxes.
i. To the best of sellers current knowledge and belief, there
is no action or proceeding or unresolved claim for
assessment or collection, pending or threatened, by, or
present or expected dispute with, any Government authority
for assessment or collection from Seller of any taxes of
any nature affecting the Assets.
3.2. Representations and Warranties of Buyer. Buyer hereby warrants and
represents, as of the Closing, the following, the truth and accuracy
of which shall constitute a condition precedent to Seller's obligations
hereunder:
3.2.a. Organization and Good Standing. Buyer is a corporation duly
organized and validly existing under the laws of the State of
Delaware, and has all necessary power and authority to enter into
and carry out the transactions contemplated hereunder.
3.2.b. Authority of Buyer. The execution of this Agreement by Buyer and
its delivery to Seller are duly authorized, and no further action
will be necessary on the part of Buyer to make this Agreement
valid and binding upon Buyer in accordance with its terms. To the
best of Buyer's knowledge, there is not now pending or threatened
any litigation, claim or demand of any nature whatsoever against
Buyer which would prevent the performance of Buyer's obligations
hereunder. To the best of Buyer's knowledge, neither the
execution nor consummation of this Agreement is in violation of
any federal, state or local statute, law, regulation or
ordinance.
3.2.c. Material Misstatements or Omissions. No representations or
warranties by Buyer in this Agreement nor any document,
statement, certificate or schedule furnished or to be furnished
to Seller pursuant hereto, contains or will contain any untrue
statement of a material fact, or omits or will omit to state a
material fact necessary to make the statements or facts contained
therein not misleading.
4. COVENANTS AND OBLIGATIONS
4.1. Obligations and Covenants of Seller. Seller hereby covenants and agrees
as follows:
4.1.a. Conduct of Business. Subject to the provisions of this Agreement,
from and after the execution hereof until the Closing, Seller
agrees (i) to use its best efforts to preserve and maintain its
relationships with suppliers, customers and others having
business relations with Seller pertaining to the Assets so that
they will be preserved for Buyer on and after the Closing; (ii)
to use its best efforts to take all actions necessary or
appropriate to meet existing commitments which are being
transferred to Buyer as part of the Assets; (iii) it shall not
enter into or modify any Contracts being assigned to Buyer
hereunder without prior written consent of Buyer; and (iv) it
shall make no management decision which may either directly or
indirectly materially affect the Assets without the prior written
consent of Buyer.
4.1.b. Access to Premises and Information. Seller agrees that any
investigation or inquiry made by Buyer pursuant to the Agreement
shall not affect or lessen in any way the representation and
warranties made by Seller in the Agreement or their survival
after the Closing as provided herein. Seller agrees, without
further consideration, to deliver to Buyer at the Closing as part
of the Assets, copies of all records relating to the Assets,
including without limitation, corporate records, credit files and
payroll records, relating to the Contracts and the leases
described in Section 1.1 hereof and other information important
to the operation thereof.
4.1.c Employees and Compensation. Seller acknowledges that Buyer
intends to offer employment to those employees identified on
Schedule 4.1.c attached hereto after the Closing and Seller
agrees to cooperate in good faith with Buyer in effecting the
transfer of such employees who accept employment with Buyer.
Seller shall not terminate any employees identified on Schedule
4.1.c, nor decrease or grant any increase in salaries payable, or
to become payable by it, to any such employee, nor will Seller
increase or decrease benefits payable to any such employee under
any bonus or pension plan or other contract or commitment,
commitment, without Buyer's prior written consent. Seller shall
have the right, but not the obligation, to retain any employee
identified on Schedule 4.1.c who does not accept employment with
Buyer. Seller acknowledges and agrees that all former employees
of Seller who are or will become employees of Buyer are subject
to no continuing confidentiality agreements or obligations
with respect to Seller or its current or former customers.
4.1.d. Consents to Others. As soon as reasonably practical after the
execution and delivery of this Agreement and in any event at or
prior to March 15, 2000, Seller shall use it best efforts to
obtain the consent of all necessary persons to the assignment and
transfer and subcontract to Buyer of any and all of the Assets,
including, without limitation, all Contracts, agreements and
leases of Seller herein provided to be assigned and transferred
to Buyer.
4.1.e. Leased Equipment Buyout. Equipment included in the Asset
Acquisition and currently under lease to SoBran will be handled
as follows: An amount equal to the lease buy-out value for the
equipment, listed on Schedule 4.1.e, will be deducted from the
agreed to price and placed into escrow. At such time as SoBran
performs a buyout of the leases for the equipment and provides
TENERA with appropriate documentation, the escrow funds will be
released.
4.2. Obligations and Covenants of Buyer. Buyer hereby covenants and agrees
as follows:
4.2.a. Cooperation in Securing Consents. Buyer shall use its best efforts to
assist Seller in obtaining the consent of all necessary persons to the
assignment and transfer to Buyer of any and all of the Assets.
5. CONDITIONS PRECEDENT TO BUYER'S OBLIGATIONS
5.1. Conditions Precedent. The obligations of Buyer hereunder are subject
to the satisfaction, at or prior to the Closing, of all of the
conditions set forth in this Article 5. The compliance with, or
occurrence of, any or all of such conditions may be waived in whole or
in part by Buyer in writing; provided, no such waiver of any condition
shall constitute a waiver by Buyer of any of its other rights or
remedies, at law or in equity, if Seller should be in default of any
its representations, warranties or covenants under this Agreement.
5.2. Seller's Performance. Seller shall have performed and complied with all
agreements and conditions required by this Agreement to be performed,
or complied with, by it prior to or at the Closing.
5.3. Officers' Certificates. Seller shall deliver to Buyer its certificate,
dated on the date of Closing, executed in its corporate name by its
president, vice president or treasurer, certifying in such detail as
Buyer may reasonably request, to the fulfillment of the conditions
specified in Section 5.2 hereof.
5.4. Corporate Approvals. Seller shall have obtained due authorization and
approval of the execution and delivery of this Agreement and shall have
taken all corporate action necessary or proper to effectuate the
fullfillment of the obligations of Seller to be performed hereunder
prior to the Closing.
5.5. Absence of Litigation. No action, suit or arbitration, administrative
or other legal proceeding which would in any manner affect Seller's
ability to consummate this Agreement shall have instituted or
threatened at or prior to the Closing, except as expressly
acknowledged by the Seller within.
5.6. Form of Documents. The form and substance of all instruments and other
documents delivered to Buyer under this Agreement shall be satisfactory
in all respects to Buyer and its counsel.
5.7. Releases. Prior to the Closing Date, Seller shall have delivered to
Buyer the written release of all liens, security interests or
encumbrances relating to the Assets, executed by the holder of such
lien, security interest or other encumbrance. The releases shall be
satisfactory in substance and form to Buyer and its counsel.
5.8. Consents. All consents and approvals so specified on Schedule 3.1.h as
required on or before Closing shall have been obtained.
5.9. General Releases. Seller shall have duly executed the General Release
in the form attached hereto as Exhibit C, to be delivered to Buyer at
the Closing.
6. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS
6.1. Conditions Precedent. The obligations of Seller hereunder are subject
to the satisfaction, at or prior to the Closing, of all of the
conditions set forth in this Article 6. The compliance with, or
occurrence of, any or all of such conditions may be waived in whole or
in part by Seller in writing; provided, no such waiver of any
condition shall constitute a waiver by Seller of any of its other
rights or remedies, at law or in equity, if Buyer should be in default
of any its representations, warranties or covenants under this
Agreement.
6.2. Buyer's Performance. Buyer shall have performed and complied with all
agreements and conditions required by this Agreement to be performed,
or complied with, by it prior to or at the Closing.
6.3. Officers' Certificates. Buyer shall deliver to Seller its certificate,
dated on the date of Closing, executed in its corporate name by its
corporate name by its president, vice president or treasurer,
certifying, in such detail as Seller may reasonably request, to the
to the fulfillment of the conditions specified in Section 6.2 hereof.
6.4. Corporate Approvals. Buyer shall have obtained due authorization and
approval of the execution and delivery of this Agreement and shall have
take all corporate action necessary or proper to effectuate the
fulfillment of the obligations of Buyer to be performed hereunder prior
to the Closing.
6.5. General Releases. Buyer shall have duly executed the General Release in
the form attached hereto as Exhibit D, to be delivered to Seller at the
Closing.
6.6. Absence of Litigation. No action, suit or arbitration, administrative
or other legal proceeding which would in any manner affect Buyer's
ability to consummate this Agreement shall have instituted or
threatened at or prior to the Closing.
7. CLOSING
7.1. Time and Place. Unless otherwise agreed to by the parties hereto, the
Closing of the Agreement (herein referred to as the "Closing" shall be
coordinated through office of Xxxxx Xxxx LLP, Suite 300, 000 Xxxxxxxx,
Xxxxx Xxxxxx, Xxxxxxxxxx 00000, at 5:00 p.m. on February 9, 2000
(hereafter referred to as the "Closing Date").
7.2. Seller's Obligations at Closing. At the Closing and as a condition
thereto, Seller shall deliver, or cause to be delivered, to Buyer the
following (all documents shall be a form and substance satisfactory to
Buyer and its counsel):
i. A duly executed Xxxx of Sale in the form attached hereto as
Exhibit A, conveying title to, and possession of, the tangible Assets
to Buyer;
ii. The Certificate of Officers described in section 5.3 hereof;
iii. Certified resolutions duly executed evidencing authorization
and approval by the Seller's Board of Directors of the execution and
delivery of this Agreement and the consummation by Seller of the
transactions contemplated hereunder;
iv. All necessary instruments of assignment and transfer of the
Assets of any kind and description wherever situated;
v. The opinion of Seller's legal counsel, attesting to the effect
and attached hereto as Exhibit B;
vi. General Release in the form attached as Exhibit C duly
executed by Seller with respect to Buyer;
vii. A duly executed Assignment and Assumption conveying all of
Seller's rights, title, and interest to and in the intangible Assets to
Buyer; and
viii. Duly executed Sublease of Leasehold Interest conveying use of
Seller's leased premises described in Schedule 1.1.ix, along with the
written consent of the landlord.
Simultaneously with the consummation of the Closing, Seller shall put
Buyer (through it officers, agents and employees) into full possession
and enjoyment of all of the Assets. Buyer shall not acquire any title
to or property in the Assets until possession has been given to Buyer
in accordance with this paragraph, and, accordingly, all risks of loss
with respect to the Assets shall be borne by Seller until possession
has been given to Buyer.
7.3. Seller's Continuing Obligations. Upon request of Buyer, Seller shall,
from time to time after the Closing, duly execute, acknowledge and
deliver all such further assignments, conveyances and other instruments
of transfer and other assurances and documents, and shall take such
other action consistent with any terms of this Agreement, as reasonably
may be requested by Buyer for the purpose of better assigning,
transferring, granting, conveying or confirming to Buyer, or reducing
to possession any and all of the property to be conveyed and
transferred pursuant to this Agreement. Seller further agrees at the
request of Buyer to use its best efforts to prosecute or otherwise
enforce in its own name for the benefit of Buyer, but solely at Buyer's
expense unless such prosecution or enforcement is necessitated by
default of Seller hereunder, any claims or rights which, or the
benefits of which, are transferred to Buyer pursuant to this Agreement
and which are required to be prosecuted or o therwise enforced in
Seller's name.
7.4. Buyer's Obligations at Closing. At the Closing and as a condition
thereto, Buyer shall deliver, or cause to be delivered, to Sellers, the
following (all documents shall in a form and substance satisfactory to
Seller and their counsel):
i. The Purchase Price in immediately available funds;
ii. The Certificate of Officers described in Section 6.3 hereof;
iii. Certified resolutions duly executed, evidencing authorization
and approval by the Board of Directors of Buyer of the execution and
delivery of this Agreement and the consummation of Buyer of the
transactions and contemplated hereunder; and
iv. General Release in the form attached hereto as Exhibit D duly
executed by Buyer.
8. INDEMNIFICATION AND OTHER CONTINUING COVENANTS
8.3. Indemnification of Buyer. For a period of one (1) year after the
Closing Date, Seller agrees to indemnify, defend with counsel of
Seller's choice and reasonably acceptable to Buyer, and hold Buyer
harmless against any and all claims, losses, liabilities, obligations,
costs and expenses (including reasonable attorneys' fees) which Buyer
may incur or suffer and which arise or result from or relate to (i) any
breach of or failure by Seller to perform any of its warranties,
representations, commitments, agreements, covenants or conditions
contained herein; (ii) any breach of or failure by Seller prior to the
Closing to perform any of the terms and conditions of the Contracts and
leases being transferred to Buyer, including without limitation, any
adjustments which may result upon audit or review by the customer upon
completion of the Contract which relate to any period prior to the
Closing; and (iii) any obligation, liability, cost or expense incurred
by Buyer which relate to, arise from or result from any liabilities of
Seller or related to the Assets other than those specifically assumed
by Buyer hereunder including, without limitation, any agreements or
promises made by Seller with respect to any employee of Seller;
provided, however, that Seller is promptly given notice of, and an
opportunity to defend, any action or claim asserted, brought or
threatened against Buyer, provided further that Buyer's failure to give
such notice shall not relieve Seller of its duty under this Agreement
to Buyer except to the extent Seller is actually materially prejudiced
or damaged thereby.
8.4. Indemnification of Seller. Buyer agrees to indemnify, defend with
counsel of Buyer's choice, and hold Seller harmless against any and all
claims, losses, liabilities, obligations, costs and expenses (including
reasonable attorneys' fees), which Seller may incur or suffer and which
arise or result from or relate to (i) any breach or failure by Buyer to
perform any of its warranties, representations commitments,
agreements, covenants or conditions contained herein; (ii) Buyer's
ownership of the Assets after the Closing; and (iii) any breach or
failure by Buyer after the Closing to perform any of the terms and
conditions of the Contracts and leases being transferred to Buyer;
provided, however, that Buyer is promptly given notice of, and an
opportunity to defend, any action or claim asserted, brought or
threatened against Seller, provided further that Seller's failure to
give such notice shall not relieve Buyer of its duty under this
Agreement to Seller except to the extent Buyer is actually materially
prejudiced or damaged thereby.
8.5. Continuing Cooperation. The parties hereto agree to use their good
faith best commercially reasonable efforts to cooperate with one
another following the Closing to complete the transactions
contemplated herein. The parties agree to provide such services to one
another at such party's usual billing rates as may be requested from
time to time with respect to completion of the Contracts and the
transfer of the Assets as contemplated herein.
8.6. Competition and Solicitation. Seller agrees that it will not at any
time within the eighteen (18) month period immediately following the
Closing, directly or indirectly, through any subsidiary, affiliate or
otherwise, perform or engage in the specific business or services
being performed under the Contracts or otherwise competitive with the
Internet Business. Except as set forth herein, the parties agree that
there shall be no restriction on their ability to compete with each
other in all other respects.
Seller and Buyer each agree that for a period of three (3) years from
the Closing Date, it shall not, without the prior written consent of
the other, employ or attempt to employ, or solicit on behalf of
another for the purpose of employment, any employees of the other
(exclusive in the case of Buyer, of any employees identified on
Schedule 4.1.c hereto). In the event an employee of Buyer or Seller
voluntarily terminates his employment, the above-referenced three (3)
year period shall be reduced to one (1) year after such resignation
but in no event more that three (3) years after the Closing, with
respect to such employee.
8.7. Nondisclosure by Seller. Seller agrees not to disclose, divulge,
communicate or convey (unless Seller becomes legally compelled to
disclose the same) to the detriment of Buyer or for the benefit of,
any other person or persons, directly or indirectly, any of the terms
of the Contracts to persons who have nor previously received such
information which is confidential and constitutes trade secrets of the
Buyer.
9. MISCELLANEOUS
9.1. Brokerage and Finder's Fees. Each party represents and warrants that
all negotiations relating to this Agreement and the transactions
contemplated hereby have been carried on by each directly with the
other without intervention of any person other than their respective
employees and counsel.
9.2. Survival of Representations and Warranties. All statements contained
in any exhibit, schedule, document, certificate or other instrument
delivered by or on behalf of any party hereto in connection with the
transactions contemplated hereby shall be deemed to be representations
and warranties made pursuant to this Agreement by such party. The
representations and warranties contained in Article 3 hereinunder
shall survive the Closing hereof for a period of one (1) year, and any
investigation made by any party or such party's representatives shall
not constitute a waiver thereof and no such representation or warranty
shall be merged into the Closing.
9.3. Notices. All notices or other communications provided for by this
Agreement shall be made in writing and shall be deemed properly
delivered when (i) delivered personally, or (ii) mailed, registered or
certified mail, postage prepaid, to the parties at the following
addresses (or to such address designated in writing by one party to
the other):
i. Addresses: Buyer:
TENERA, Inc.
One Market, Suite 0000 Xxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Seller:
SoBran, Inc.
0000 Xxx Xxxxxxx Xxxxx X
Xxxxxxx, XX 00000
Attention: Xxxx Xxxx, Owner
9.4. Attorneys' Fees and Expenses. All attorneys' fees and other costs and
expenses incurred in connection with the transactions hereinabove
described, including preparation of this Agreement, shall be paid by
the respective parties hereto. In the event of default hereunder, the
defaulting party shall be liable to the non-defaulting party for all
expenses and costs incurred by the non-defaulting party in protecting
or enforcing its rights hereunder including but no limited to
reasonable fees and expenses of attorneys, accountants and experts,
and court costs.
9.5. Subject Headings. The subject heading of the articles, paragraphs and
subparagraphs of this Agreement are included solely for purposes of
convenience and reference only, and shall not be deemed to explain,
modify, limit, amplify or aid in the meaning, construction or
interpretation of any of the provisions of this Agreement.
9.6. Exhibits. All exhibits and schedules, attached hereto and referred to
herein, are an integral part of this Agreement and incorporated herein
by reference hereby.
9.7. Amendments. No supplement, modification or amendment of any term,
provision or condition of this Agreement shall be binding or
enforceable unless executed in writing by the parties hereto.
9.8. Entire Agreement and Waiver. This Agreement contains the entire
agreement between the parties hereto and supersedes all prior and
contemporaneous agreement, arrangements, negotiations, and
understanding between the parties hereto, relating to the subject
matter hereof. There are no other understandings, statements, promises
or inducements, oral or otherwise, contrary to the terms of this
Agreement. No representations, warranties, covenants or conditions,
express or implied, whether by statute or otherwise, other than as set
forth herein have been made by any party hereto. No waiver of any
term, provision, or condition of this Agreement, whether by conduct or
otherwise, in any one or more instances, shall be deemed to be, or
shall constitute, a wavier of any other provision hereof, whether or
not similar, nor shall such waiver constitute a continuing waiver, and
no waiver shall be binding unless in writing and executed by the
parties.
9.9. Parties in Interest. Nothing in this Agreement, whether express or
implied, is intended to confer upon any person other than the parties
hereto and the parties to the related documents executed in connection
herewith and their respective heirs, representatives, successors and
permitted assigns, any rights or remedies under or by reason of this
Agreement, nor is anything in this Agreement intended to relieve or
discharge the liability of any other party hereto, nor shall any
provision hereof give any entity any right of subrogation against or
action over against any party.
9.10. Successors and Assigns. Neither this Agreement nor any of the rights
or obligations hereunder shall be assignable by any party hereto
without the written consent of all of the parties first obtained
(except as provided to the contrary with respect to licenses granted
by Seller), and any attempted assignment without such written consent
shall be void and confer no rights upon any third party. Subject to
the foregoing, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective heirs,
representatives, successors and permitted assigns.
9.11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.12. Applicable Law. The Parties agree and consent to personal jurisdiction
and service and venue in any federal or state court within the State
of California having subject matter jurisdiction, for the purposes of
any action, suit or proceeding arising out of or relating to this
Agreement. This Agreement shall be interpreted, governed and construed
under the laws of the State of California as if it were executed and
to be performed wholly within the State of California.
9.13. Further Documents. Each party agrees to execute and deliver, at any
time and from time to time, upon the request of another party, such
further instruments or documents as may be reasonably necessary or
appropriate to carry out the provisions contained herein, and to take
such other action as another party may reasonably request to
effectuate the purposes of this Agreement.
9.14. Reformation/severability. If any provision of this Agreement is
declared invalid by any tribunal, then such provision shall be deemed
automatically adjusted to the minimum extent necessary to conform to
the requirements for validity as declared at such time and, as so
adjusted, shall be deemed a provision of this Agreement as though
originally included herein. In the event that the provision
invalidated is of such a nature that it cannot be so adjusted, the
provision shall be deemed deleted from this Agreement as though such
provision had never been included herein. In either case, the
remaining provisions of this Agreement shall remain in effect.
9.15. Interpretations and Definitions. The parties agree that each party and
its counsel have reviewed and revised this Agreement and that any rule
of construction to the effect that ambiguities are to resolve against
the drafting party shall not apply in the interpretation of this
Agreement. In this Agreement the neuter gender includes the feminine
and masculine and the singular number includes the plural and the
words "person, and "party" include corporation, partnership, firm,
trust or association whenever the context so requires.
9.16. Remedies Not Exclusive and Waiver. No remedy conferred by any of the
specific provisions of this Agreement is intended to be exclusive of
any other remedy and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or otherwise. The
election of any one or more remedies shall not constitute a waiver of
the right to pursue other available remedies.
9.17. Materiality of Representations and Warranties. Each of the
representations and warranties contained in this Agreement, in any
attachment hereto, or any certificate delivered in connection
herewith, shall be considered a material warranty and representation
which was made as a substantial inducement to the execution of this
Agreement and any breach of any such representation and warranty shall
be considered a material breach of this Agreement.
Publicity. No statement concerning the transactions contemplated by this
Agreement shall be made or release to any medium of public communication
except with the prior written approval of Buyer and Seller (such approval
shall be not unreasonably withheld) and except to the extent that counsel
advises such party that disclosure is legally required.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
SoBran, Inc.
By: ___/s/ Xxxx Otis_____________________
Its: ___President & CEO__________________
TENERA, Inc.
By: ____/s/ R.C. McKay___________________
Its: ___President & CEO__________________
ASSET ACQUISITION AGREEMENT
Schedule 1.1.i.
"Schedule 1.1.i. All of Seller's right, title and interest in and to all
executory customer licenses, contracts and proposals, which shall be described
on Schedule 1.1.i. attached hereto (provided, however, that such customer
consents in writing to the assignment and transfer thereof to Buyer), all work
in process with respect thereto, and all rights and preferences for any
reasonable extensions on contracts relating to current work being performed at
the same sites (collectively, the "Contracts");"
No contracts are included in the scope of this asset acquisition. An extension
to a recently expired SoBran contract that provided support associated with the
ITrack software application and data maintenance program is anticipate to be
awarded to TENERA after closing of this acquisition.
ASSET ACQUISITION AGREEMENT
Schedule 1.1.ii.
"Schedule 1.1.ii. - Those fixed operating assets specifically selected by
the Buyer, including the furniture and computer hardware and software (the
"Tangible Fixed Assets") located at the Seller's offices in Knoxville,
Tennessee, which the parties agree are in good operating condition, all of which
are identified on Schedule 1.1.ii attached hereto:"
ASSET ACQUISITION AGREEMENT
Schedule 1.1.iii.
"Schedule 1.1.iii. - All of the goodwill, trade secrets, proprietary and
technical data, intellectual property rights, know-how, inventions, discoveries
and trade names pertaining to or used in connection with the Internet Business
and the Contracts including, without limitation, those identified on Schedule
1.1.iii attached hereto:"
Acquisition scope includes all architecture, programming, and coding associated
with the Internet Business including: software application programs, module
designs, electronic templates, and learning models; all process methods and
practices associated with development and application of software application
programs, course xxxx (i.e. ASP templates, interactive exercises) module
designs, electronic templates, and electronic models; course technical content
including digital photography, video materials, sound tracks, and other
supporting electronic and data files; all architecture, functionality,
programming, stored routines, and code that constitutes the XxXxxxx.xxx
Corporate Distance Learning Center (CDLC).
Acquisition scope also includes all architecture, programming, and coding
associated with the SoBran software and application program called ITrack
including all licenses, trademarks, registrations, architecture, functionality,
programming, stored routines, data and data files, and code.
ASSET ACQUISITION AGREEMENT
Schedule 1.1.vii.
Schedule 1.1.vii - All of Seller's right, title and interest in or to the
names of all Internet URL addresses owned by Seller other than "XxXxxx-xxx.xxx"
and "XxXxxx.xxx.xxx", which shall be described on Schedule 1.1.vii attached
hereto:
A. The Acquisition includes the following trade names: ITrack; GoTrain;
Corporate Distance Learning Center (CDLC)
B. The Acquisition includes the following Domain names: XxXxxxx.xxx;
x-xxx.xxx; xxxx.xxx
ASSET ACQUISITION AGREEMENT
Schedule 1.1.ix.
Schedule 1.1.ix - A sublease to Buyer approved by the lessor of the
Seller's premises (the "Premises") as described in Schedule 1.1.ix attached
hereto:
ASSET ACQUISITION AGREEMENT
Schedule1.5
Schedule 1.5 - Allocation of Purchase Price. The parties hereto agree that
the Purchase Price shall be allocated among the Assets as set forth in this
Schedule. The parties declare and acknowledge that these values were
determined in good faith in arm's length bargaining. Each party agrees to
report the transaction for income tax purposes in accordance with the
allocation recited herein and that it will not take any position
inconsistent with this allocation except with the written consent of the
other party hereto. However, if the Internal Revenue Service or the
Franchise Tax Board takes a position with respect to one party to this
Agreement that is inconsistent with the allocation herein, the other party
may take a protective position adopting the taxing authority's contention
until the controversy is finally resolved.
ASSET ACQUISITION AGREEMENT
Schedule 2.1.i
2.1.i - All vendor-related payables of Seller related to any of the Assets for
any and all periods (or portions thereof) ending on or prior to the Closing
Date, a complete list of which Seller has specified on Schedule 2.1.i attached
hereto;
ASSET ACQUISITION AGREEMENT
Schedule 3.1.h
Schedule 3.1.h - Consents of Third Parties. Except as set forth on this Schedule
3.1.h, no approval or consents of any person, entity or governmental agency
(including, without limitation, consents of customers, lessors, financial
institutions, and suppliers) other than Seller is necessary to any of the
transfers, assignments or conveyances of the Assets to Buyer.
No Third Party Consents are required by the Seller to complete this Acquisition.
ASSET ACQUISITION AGREEMENT
Schedule 4.1.c.
Schedule 4.1.c - Acquired Personnel List: Employees and Compensation. Seller
acknowledges that Buyer intends to offer employment to those employees
identified on Schedule 4.1.c attached hereto after the Closing and Seller agrees
to cooperate in good faith with Buyer in effecting the transfer of such
employees who accept employment with Buyer. Seller shall not terminate any
employees identified on Schedule 4.1.c, nor decrease or grant any increase in
salaries payable, or to become payable by it, to any such employee, nor will
Seller increase or decrease benefits payable to any such employee under any
bonus or pension plan or other contract or commitment, without Buyer's prior
written consent. Seller shall have the right, but not the obligation, to retain
any employee identified on Schedule 4.1.c who does not accept employment with
Buyer. Seller acknowledges and agrees that all former employees of Seller who
are or will become employees of Buyer are subject to no continuing
confidentiality agreements or obligations with respect to Seller or its current
or former customers.
SoBran Employees Acquired by TENERA
------------------------ ------------------------ ------------------------------
Name Social Security Number Job Title
------------------------ ------------------------ ------------------------------
Xxxxxx, Xxxxxxx ###-##-#### Web Designer I
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Xxxxx, Xxxxxx ###-##-#### Senior Web Developer
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Xxxxxx, Xxxxxx ###-##-#### Web Designer II
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Xxxxxx, Xxxxxx ###-##-#### Web Developer I
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Holder, Nate (Xxxxx) ###-##-#### Systems Administrator II
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Xxxx, Xxxxxxx ###-##-#### Web Designer II
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Job, Xxxxx ###-##-#### Vice President, Operations
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Xxx, Xxxxx ###-##-#### Web Designer I
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Xxxxxxxxx, Xxxxx ###-##-#### Application Support
Administrator
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
XxXxxxxxxx, Xxx ###-##-#### Senior Web Designer
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
XxXxxx, Xxxxxx ###-##-#### Web Designer II
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Xxxxxxxx, Xxxxx ###-##-#### Web Designer II
------------------------ ------------------------ ------------------------------
------------------------ ------------------------ ------------------------------
Xxxxxx, Xxxxx ###-##-#### Web Developer II
------------------------ ------------------------ ------------------------------
ASSET ACQUISITION AGREEMENT
Schedule 4.1.e.
Equipment Requiring SoBran Lease Buyout
Schedule 4.1.e: Leased Equipment Buyout. Equipment included in the Asset
Acquisition and currently under lease to SoBran will be handled as follows: An
amount equal to the lease buy-out value for the equipment, listed on Schedule
4.1.e, will be deducted from the agreed to price and placed into escrow. At such
time as SoBran performs a buyout of the leases for the equipment and provides
TENERA with appropriate documentation, the escrow funds will be released.
(2)Micron Four Micron Computer 36-month lease started 8/99
0241522059000 Work Stations with options to purchase.
Monthly charges $570.69 with
buyout of $13,590.45.
(half to be paid by TENERA)
(3)Kennesaw Miscellaneous furniture 36-month lease started 6/97
09-970620 with option to purchase.
Monthly charges $$ with
buyout of $664.70.
(5)Information Leasing Miscellaneous computer 36-month lease started in
Corporation and s/w gear some 1997. Buyout $3,500.
being applied to the
45199711 CDLC
(6)Information Leasing Miscellaneous 36-month lease started in
Corporation computer, HUB, and 1997. Buyout $1,125.
s/w gear some being
46719711 applied to the CDLC
(7)Information Leasing Miscellaneous computer 36-month lease started in
Corporation and s/w gear some 1997. Buyout $1,425.
being applied to the
48959711 CDLC
(8)Information Leasing Miscellaneous computer 36-month lease started in
Corporation and s/w gear some 1997. Buyout $1,200.
being applied to the
51899711 CDLC
ASSET ACQUISITION AGREEMENT
EXHIBIT A
XXXX OF SALE
SoBran Incorporated, an Ohio corporation, for valuable consideration,
receipt of which is hereby acknowledged, hereby sell and assign, and by this
Xxxx of Sale do grant, assign, convey, transfer, and deliver to TENERA Inc., a
Delaware corporation, its representatives, successors, and assigns the goods and
chattels described in this Asset Acquisition Agreement and presented as
Schedules 1.1.i, 1.1.ii, 1.1.iii, 1.1.iv, and 4.1.c and included herein and
incorporated by reference as though fully set forth herein, free and clear of
all defects of title, security interests, liens, mortgages, encumbrances, and
adverse claims.
IN WITNESS WHEREOF, duly authorized representatives of SoBran, Inc.
have executed this Xxxx of Sale this 11th day of February, 2000.
SoBran Inc.
-----------
By ___/s/Xxxx Otis____________
Title __President & CEO________
Notarized Witness
-----------------
By ____/s/Xxxxx X. Malzahn_______
Name ________________________
ASSET ACQUISITION AGREEMENT
EXHIBIT B
SELLER'S LEGAL COUNCIL OPINION
ASSET ACQUISITION AGREEMENT
EXHIBIT C
MUTUAL GENERAL RELEASE
