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EXHIBIT 2
ASSET PURCHASE AGREEMENT
Asset Purchase Agreement dated as of January 10, 1998 (the "AGREEMENT")
by and between BancTec USA, Inc., a Delaware corporation ("SELLER"), and
National Transaction Network, Inc., a Delaware corporation ("BUYER").
W I T N E S S E T H :
WHEREAS, Seller designs, manufactures, markets and services certain
software known as Mainsail and Semaphore software (the "PRODUCT LINES");
WHEREAS, Buyer desires to acquire from Seller, and Seller desires to
sell to Buyer, substantially all of the assets related to the Product Lines of
Seller, upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties, covenants and agreements contained herein, the
Seller and the Buyer hereby agree as follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. The following terms, as used herein, have the
following meanings:
"AFFILIATE" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with such other
Person.
"ANCILLARY AGREEMENTS" means the Xxxx of Sale and Instrument of
Assignment and Assumption substantially in the form set forth on Exhibit A, the
Assignments of Trademarks in substantially the form set forth in Exhibit B, and
the Service Agreement to be negotiated by the parties in good faith.
"LIEN" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
"MAINTENANCE CONTRACTS" means the Mainsail and Semaphore software
maintenance contracts listed in SCHEDULE 2.01(A) attached hereto.
"MATERIAL ADVERSE CHANGE" means a material adverse change in the
business, assets, operations, financial condition or results of operations or
prospects related to the Product Lines.
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"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, assets, operations, financial condition or results of operations or
prospects of a Person taken as a whole.
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"PROPRIETARY RIGHTS" means all (A) United States and foreign patents,
patent applications, patent disclosures and all related continuation,
continuation-in-part, divisional, reissue, re-examination, utility, model,
certificate of invention and design patents, patent applications, registrations
and applications for registrations, (B) trademarks, service marks, trade dress,
logos, tradenames, service names and corporate names and registrations and
applications for registration thereof, (C) copyrights and registrations and
applications for registration thereof, (D) mask works and registrations and
applications for registration thereof, (E) computer software, programs, data and
documentation, (F) trade secrets and confidential business information, whether
patentable or nonpatentable and whether or not reduced to practice, know-how,
manufacturing and product processes and techniques, designs, prototypes,
enhancements, improvements, works-in-progress, research and development
information and (G) other proprietary rights relating to any of the foregoing
(including without limitation associated goodwill and remedies against
infringements thereof and rights of protection of an interest therein under the
laws of all jurisdictions) and (H) copies and tangible embodiments thereof.
"SELLER'S SOFTWARE" means Seller's "Mainsail" and "Semaphore" software
programs in source code and object code form and including any and all
programmer's notes or other documentation, BancTec owned tools and/or utilities
and all related user documentation.
ARTICLE II
PURCHASE AND SALE
2.01. PURCHASE AND SALE. Upon the terms and subject to the conditions
of this Agreement, Buyer agrees to purchase from Seller and Seller agrees to
sell, transfer, assign and deliver, or cause to be sold, transferred, assigned
and delivered, to Buyer at the Closing (as hereinafter defined), free and clear
of all Liens, all right, title and interests of Seller in and to the Product
Lines and the assets used in or relating to the Product Lines, tangible and
intangible, as set forth below (the "PURCHASED ASSETS"):
(a) All Maintenance Contracts, and Seller's other
written contracts, agreements and licenses set forth in SCHEDULE
2.01(A) attached hereto (the "CONTRACTS");
(b) Seller's Software, all of Seller's Proprietary
Rights in Seller's Software (except as set forth in Section 6.03
hereof), including the items as set forth in SCHEDULE 2.01(B) attached
hereto (the "INTELLECTUAL PROPERTY");
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(c) All of Seller's right, title and interest in and
to the personal property set forth on SCHEDULE 2.01(C) attached hereto
(the "PERSONAL PROPERTY"); and
(d) All of Seller's rights (including common law
trademark rights) to use the names "Mainsail" and "Semaphore" and logos
thereof, provided, however, that Seller shall have the right to use
such trademarks as set forth in Section 6.03 hereof.
2.02. ASSUMPTION OF LIABILITIES. Upon the sale of the Purchased Assets
by Seller to Buyer, Buyer shall assume and, subject to Article IX hereof, agree
to pay, perform and discharge, in a timely manner and in accordance with the
terms hereof, the following liabilities and obligations of Seller relating to
the Product Lines (the "ASSUMED LIABILITIES"):
(a) all liabilities and obligations of Seller which
arise after the Closing Date under the terms and provisions of the
Maintenance Contracts, but excluding any liability of Seller for breach
or nonperformance of any of the foregoing occurring on or prior to the
Closing Date;
(b) all liabilities and obligations resulting from
product liability claims for damage or injury to persons or property
arising from the ownership, possession or use of any Seller's Software
shipped by Buyer after the Closing Date;
(c) all liabilities and obligations resulting from
product warranty claims with respect to any product shipped by Buyer
after the Closing Date; and
(d) except to the extent the same constitutes an
Excluded Liability or arises from a breach of any representation,
warranty, covenant or agreement of Seller contained herein or the
Service Agreement, all liabilities and obligations arising from the
conduct of the business relating to the Product Lines by Buyer
subsequent to the Closing.
2.03. EXCLUDED LIABILITIES. Notwithstanding any provision in this
Agreement or any other writing to the contrary, Buyer is assuming only the
Assumed Liabilities and is not assuming any other liability or obligation of
Seller or any predecessor owner of all or part of its business and assets of
whatever nature whether presently in existence or arising or asserted hereafter.
All such other liabilities and obligations shall be retained by and remain
obligations and liabilities of Seller (all such liabilities and obligations not
being assumed being herein referred to as the "EXCLUDED LIABILITIES"). Without
limiting the foregoing, all of the following shall be Excluded Liabilities for
the purposes of this Agreement:
(a) all liabilities and any obligations under any
Contracts arising (i) on or before the Closing Date (ii) which are not
disclosed in Schedule 2.01 (a), or (iii) which are not properly
assigned to Buyer and the benefits of which have not been made
available to Buyer pursuant to Section 2.04;
(b) any obligation or liability for any tax,
assessment or public charges of any type or nature whatsoever, due or
payable to any Federal, state or local government or agency arising
from or with respect to the Purchased Assets that is incurred in or
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attributable to any tax period (or portion thereof) ending on or before
the Closing Date, including any taxes payable as a result of the
transactions contemplated by this Agreement;
(c) any and all liabilities and obligations arising
pursuant to agreements or understandings with consultants,
distributors, suppliers or customers and relating to products shipped
on or before the Closing Date;
(d) all liabilities and obligations resulting from
product liability claims for damage or injury to persons or property
arising from the ownership, possession or use of any product shipped by
Seller on or prior to the Closing Date;
(e) all liabilities and obligations resulting from
product warranty claims with respect to any Seller's Software shipped
by Seller on or prior to the Closing Date;
(f) all liabilities and obligations of Seller which
may arise by reason of or with respect to this Agreement or any of the
transactions contemplated hereby (including, without limitation, all
legal, accounting, brokerage, investment banking or finder's fees of
Seller);
(g) all liabilities and obligations arising out of
the employment, severance and termination liabilities with respect to
any director, officer, employee or consultant under any contract or
agreement which has been terminated on or prior to the Closing Date or
which arise under any contract or agreement as a result of the
transactions contemplated by this Agreement;
(h) all liabilities and obligations for infringement
or misappropriation arising from the use of the Intellectual Property
by Seller or any customers of Seller on or prior to the Closing Date;
and
(i) any and all other liabilities,
obligations, claims or causes of action relating to the Product Lines
or the Purchased Assets and resulting from or relating to any action,
failure to act, or facts and circumstances occurring or existing on or
prior to the Closing other than the Assumed Liabilities.
2.04. ASSIGNMENT OF CONTRACTS AND RIGHTS. Anything in this Agreement to
the contrary notwithstanding, this Agreement shall not constitute an agreement
to assign any Purchased Asset or any claim or right or any benefit arising
thereunder or resulting therefrom if an attempted assignment thereof, without
consent of a third party thereto, would constitute a breach or other
contravention thereof or in any way adversely affect the rights of Buyer or
Seller thereunder. Seller and Buyer will use commercially reasonable efforts
(but without any payment of money by Seller or Buyer) to obtain the consent of
the other parties to any such Purchased Asset or claim or right or any benefit
arising thereunder for the assignment thereof to Buyer as Buyer may reasonably
request. If such consent is not obtained, or if an attempted assignment thereof
would be ineffective or would adversely affect the rights of Seller thereunder
so that Buyer would not in fact receive all such rights, Seller and Buyer will
cooperate in a mutually agreeable arrangement under which Buyer would obtain the
benefits and assume the obligations thereunder in accordance
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with this Agreement, including subcontracting, sub-licensing, or subleasing to
Buyer, or under which Seller would enforce for the benefit of Buyer, with Buyer
assuming Seller's obligations, any and all rights of Seller against a third
party thereto.
2.05. PURCHASE PRICE AND METHOD OF PAYMENT. In full payment for the
Purchased Assets, (i) Buyer shall pay to Seller seventy-five percent (75%) of
the revenues Buyer receives pursuant to the Maintenance Contacts during the
period commencing on January 16, 1998 and ending on January 15, 1999 (the
"PAYMENT PERIOD") and (ii) if any Maintenance Contract terminates or expires
during the Payment Period through no fault of Buyer and Buyer enters into and
executes a new maintenance contract (the "NEW MAINTENANCE CONTRACT") with a
Person who was a party to a Maintenance Contract, then Buyer shall pay to Seller
seventy-five percent (75%) of the revenues Buyer receives pursuant to the New
Maintenance Contact during the Payment Period (collectively, the "PURCHASE
PRICE"). Buyer shall pay all such amounts to Seller within thirty (30) days from
the date of receipt of such amounts by Buyer from the parties to such
Maintenance Contracts and New Maintenance Contract, if any.
2.06. CLOSING. The closing (the "CLOSING") of the purchase and sale of
the Purchased Assets and the assumption of the Assumed Liabilities hereunder
shall take place at the offices of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, High Street
Tower, 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 as of 12:01 a.m. on January
16, 1998, or at such other time or place as Buyer and Seller may agree. Such
time and date of Closing are herein referred to as the "CLOSING DATE". At the
Closing:
(a) The sale, conveyance, transfer, assignment and delivery of
the Purchased Assets shall be effected by delivery on the Closing Date
by Seller to Buyer of such deeds, bills of sale, endorsements,
consents, assignments and other good and sufficient instruments of
conveyance and assignment as the Buyer may request as necessary or
appropriate to vest in Buyer all right, title and interest in, to and
under the Purchased Assets, including, without limitation, (i) Xxxx of
Sale and Instrument of Assignment and Assumption in substantially the
form of EXHIBIT A attached hereto; and (ii) the Assignment of
Trademarks in substantially the form of EXHIBIT B attached hereto. The
assumption by Buyer of the Assumed Liabilities shall be effected by
delivery on the Closing Date by Buyer to Seller of the Xxxx of Sale and
Instrument of Assignment and Assumption.
(b) Seller and Buyer shall enter into a Service Agreement to
be negotiated by the parties in good faith.
(c) Seller and Buyer shall also execute and deliver all such
instruments, documents and certificates as may be reasonably requested
by the other party that are necessary, appropriate or desirable for the
consummation at the Closing of the transactions contemplated by this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller represents and warrants to Buyer that:
3.01. CORPORATE EXISTENCE AND POWER. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted. Seller is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its activities
make such qualification necessary, except for those jurisdictions where failure
to be so qualified would not, individually or in the aggregate, have a Material
Adverse Effect on Seller.
3.02. AUTHORIZATION; EXECUTION AND DELIVERY; NO VIOLATION. The
execution, delivery and performance of this Agreement, the Ancillary Agreements
and the Service Agreement entered into in connection with the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Seller. This Agreement and the Ancillary
Agreements entered into in connection with the transactions contemplated hereby
have been duly executed and delivered by Seller, constitute the valid and
binding obligations of Seller, and are enforceable in accordance with their
respective terms. The execution, delivery and performance of this Agreement and
the Ancillary Agreements entered into in connection with the transactions
contemplated hereby by Seller do not and will not violate, conflict with, result
in a breach of or constitute a default under or result in the creation of any
lien, security interest or other encumbrance under (a) the Certificate of
Incorporation or By-Laws of the Seller, as amended to date, (b) any material
agreement, contract, license, instrument, lease or other obligation to which the
Seller is a party or by which it is bound, and which affects the Purchased
Assets, (c) any judgment, order, decree, ruling or injunction or (d) any
statute, law, regulation or rule of any governmental agency or authority
applicable to Seller or by which any of its properties or assets or business may
be bound.
3.03. INTERESTS IN THE PURCHASED ASSETS. Seller is the true and lawful
owner of all of the Purchased Assets and has valid and marketable title to all
of the Purchased Assets, free and clear of all Liens and liabilities, except the
Assumed Liabilities, and has the absolute and unconditional right, power,
authority and capacity to sell, transfer, assign, convey and deliver the
Purchased Assets to the Buyer free and clear of all Liens, third-party claims,
third-party interests and liabilities.
3.04. INTELLECTUAL PROPERTY.
(a) SCHEDULE 3.04(A) sets forth a list of all Intellectual
Property used or held for use by Seller in connection with the Product
Lines, specifying as to each, as applicable: (i) the nature of such
Intellectual Property; (ii) the owner or owners of such Intellectual
Property; (iii) all persons other than Seller who have an ownership or
economic interest in such Intellectual Property; (iv) the jurisdictions
by or in which such Intellectual Property is recognized without regard
to registration or in which the Intellectual Property has been issued
or registered or in which an application for such issuance of
registration has been
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filed, including the respective registration or application numbers;
and (v) licenses, sublicenses and other agreements as to which Seller,
consultants, distributors or resellers is a party and pursuant to which
any person is authorized to use such Intellectual Property, including
the identity of all parties thereto, a description of the nature and
subject matter thereof, the applicable royalty and the term thereof.
(b) Seller owns all of the Intellectual Property. Seller is
the sole and exclusive owner with all right, title and interest in and
to (free and clear of any Liens or other interests) the Intellectual
Property. Seller has sole and exclusive rights (and is not
contractually obligated to pay any compensation to any third party in
respect thereof) to the use of the Intellectual Property. No claims
with respect to the Intellectual Property have been asserted or, to the
knowledge of Seller, are threatened by any person, including without
limitation (i) to the effect that the design, development, manufacture,
sale, licensing or use of the Intellectual Property or any product as
now used, sold or licensed or proposed for use, sale or license by the
Seller which includes any Intellectual Property infringes any
copyright, patent, trademark, service xxxx or trade secret of any third
party, (ii) against the use by Seller of any Intellectual Property as
currently used or as proposed to be used by Seller, (iii) challenging
the ownership, validity or effectiveness of any of the Intellectual
Property, or (iv) that any person other than the Seller has any
ownership or economic interest in any of the Intellectual Property. All
copyrights held by Seller are valid and subsisting in the jurisdictions
in which they are used or registered. To the best knowledge of Seller,
there is no unauthorized use, infringement or misappropriation of any
of the Intellectual Property by any third party, including any
employee, former employee, consultant, distributor or customer of
Seller. In connection with Seller's design, development, manufacture,
sale, licensing or use of any of the Intellectual Property, there is no
infringement liability (xxxxxx or inchoate) with respect to, or
infringement or violation by, Seller of any patent, trademark, service
xxxx, copyright, trade secret or other Intellectual Property right of
another person. No Intellectual Property is subject to any outstanding
order, judgment, decree, stipulation or agreement restricting in any
manner the sale or licensing thereof by Seller. There is no outstanding
order, judgment, decree or stipulation binding on Seller, and Seller is
not a party to or bound by any agreement restricting the transfer, sale
or license of any of the Intellectual Property. Seller has not entered
into any agreement to indemnify any other person against any charge of
infringement of any of the Intellectual Property.
(c) There is not, nor has there been at any time during the
past three years, pending or, to the knowledge of Seller, threatened
any action, suit, investigation or proceeding (or any basis therefor)
contesting the validity, ownership or right to use, sell, license,
transfer or otherwise dispose of any Intellectual Property or alleging
infringement arising therefrom, nor has Seller learned that any person
is or has been in the past asserting that any ownership, use, license,
production, development, manufacture, marketing, distribution, lease,
sale or other disposition of any of the Purchased Assets conflicts or
will conflict with the rights of any other person.
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(d) None of the former or present employees, consultants,
officers or directors of Seller or any distributor, reseller or
customer of Seller, owns, directly or indirectly, or has any other
right or interest in, or claim to, in whole or in part, any of the
Intellectual Property. Each current and former employee of or
consultant to Seller has signed a proprietary information and
inventions assignment agreement substantially in Seller's standard form
as certified by Seller and delivered to Buyer. Seller has obtained from
all consultants or independent contractors which have performed design,
development or other technical services relating to the Intellectual
Property a full, irrevocable and unconditional written assignment of
all rights of such third parties in any of the Intellectual Property in
respect of which they have performed services which assignment(s) are
assignable, and hereby assigned to the Buyer.
(e) Each customer to whom Seller has delivered a copy of the
Intellectual Property has executed and delivered to Seller a license
agreement for the use thereof. A copy of each such agreement is set
forth in SCHEDULE 3.04(E)(I), and a copy of Seller's current form of
license agreement is set forth in SCHEDULE 3.04(E)(II). Each such
license agreement is in full force and effect according to its terms
and, to the knowledge of Seller the licensee thereunder is not in
default under the terms of such license agreement nor has any event or
circumstance occurred that, with notice or a lapse of time or both,
would constitute an event of default thereunder with respect to such
licensee.
3.05. LITIGATION. There are no actions, suits, proceedings, unfair
labor practice charges, government citations, claims or investigations
instituted and pending, or to the best knowledge of the Seller, threatened
against or directly affecting the Seller and involving the Purchased Assets.
Seller knows of no unsatisfied judgment against Seller which is or could become
a Lien upon or affect the Purchased Assets. Seller has no knowledge of any
litigation presently pending in a court or other proceeding or governmental
action (including those of any taxing authorities) nor has Seller received any
service of process for any complaint, temporary restraining order or preliminary
or permanent injunction or other notice whatsoever with respect thereto, that
could prohibit or interfere with the conveyance by Seller to Buyer of the
Purchased Assets.
3.06. MATERIAL CONTRACTS. To the best of Seller's knowledge, each
Contract disclosed in SCHEDULE 2.01(A) or required to be disclosed pursuant to
this Section 3.08 is a valid and binding agreement of Seller and is in full
force and effect, and neither Seller nor, to the knowledge of Seller, any other
party thereto, is in default under the terms of any such Contract, nor has any
event or circumstance occurred that, with notice or lapse of time or both, would
constitute an event of default thereunder with respect to Seller or, to the
knowledge of Seller, any other party thereto. Except as set forth in SCHEDULE
2.01(A), Seller is not a party to or subject to:
(a) any partnership, joint venture or other similar contract
arrangement or agreement involving or relating to the Purchased Assets;
(b) any license, sublicense, royalty, development or
consulting agreement involving or relating to the Intellectual
Property;
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(c) any agency, dealer, distributor, sales or marketing
representative or other similar agreement relating to the Intellectual
Property;
(d) any agreement, contract or commitment that limits the
freedom of Seller to compete with the Product Lines with any person or
in any area or to own, operate, sell, transfer, pledge or otherwise
dispose of or create a Lien on any Purchased Assets or that would so
limit or purport to limit the freedom of Buyer after the Closing; or
(e) any other agreement, contract or commitment involving or
relating to the Purchased Assets.
3.07 ASSUMPTIONS OR GUARANTIES OF INDEBTEDNESS OF OTHER PERSONS. To the
best of Seller's knowledge, Seller has not assumed, guaranteed, endorsed or
otherwise become directly or contingently liable on (including, without
limitation, liability by way of agreement, contingent or otherwise, to purchase,
to provide funds for payment, to supply funds to or otherwise to invest in the
debtor or otherwise to assure the creditor against loss), any indebtedness of
any other person or entity which could adversely affect the transfer of the
Purchased Assets to Buyer.
3.08. COMPLIANCE WITH LAWS. The Seller has all requisite material
licenses, permits and certificates, including environmental, health and safety
permits, from federal, state and local authorities necessary to conduct its
business relating to the Product Lines and own and operate the Purchased Assets.
The Seller is not in violation of, and, to the knowledge of Seller, is not under
investigation with respect to, and has not been threatened to be charged with or
given notice of any violation of, any law, regulation or ordinance (including,
without limitation, laws, regulations or ordinances relating to environmental
laws, building, zoning, land use or similar matters) relating to the Purchased
Assets, the violation of which could have a Material Adverse Effect on Seller,
the Purchased Assets or which would substantially impair the continuation of
Seller's business related to the Product Lines as presently conducted.
3.09. CONSENTS. SCHEDULE 3.09 sets forth each agreement, contract or
other instrument binding upon Seller requiring a consent as a result of the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby.
3.10. FINDER. The Seller has not retained the services of any person,
firm or entity as a finder or broker, or incurred any liability for any
brokerage or finder's fee or commissions, in connection with the transactions
contemplated hereby.
3.11. DISCLOSURE. Neither this Agreement nor any other agreement,
document, certificate or written or oral statement furnished to the Buyer or its
counsel by or on behalf of the Seller in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading. There is no fact within the knowledge of the Seller
or any of its executive officers which has not been disclosed herein or in
writing by them to the Buyer and which has a Materially Adversely Effect, or in
the future in their opinion may, insofar as they can now foresee, have a
Materially Adverse Effect on the Buyer and/or Purchased Assets.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warranties to Seller that:
4.01. ORGANIZATION AND EXISTENCE. Buyer is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Delaware and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
4.02. CORPORATE AUTHORIZATION. The execution, delivery and performance
of this Agreement; Xxxx of Sale and Instrument of Assignment and Assumption and
the Service Agreement entered into in connection with the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of Buyer. This Agreement Xxxx of Sale and
Instrument of Assignment and Assumption and the Service Agreement entered into
in connection with the transactions contemplated hereby have been duly executed
and delivered by Buyer, constitute the valid and binding obligations of Buyer,
and are enforceable in accordance with their respective terms. The execution,
delivery and performance of this Agreement Xxxx of Sale and Instrument of
Assignment and Assumption and the Service Agreement entered into in connection
with the transactions contemplated hereby by Buyer do not and will not violate,
conflict with, result in a breach of or constitute a default under or result in
the creation of any lien, security interest or other encumbrance under (a) the
Certificate of Incorporation or By-Laws of Buyer, as amended to date, (b) any
judgment, order, decree, ruling or injunction or (c) any statute, law,
regulation or rule of any governmental agency or authority applicable to Buyer
or by which any of its properties or assets or business may be bound.
ARTICLE V
COVENANTS OF SELLER
Seller covenants and agrees as follows:
5.01. CONDUCT OF SELLER. From the date hereof until the Closing Date,
Seller shall conduct its businesses related to the Product Lines in the ordinary
course consistent with past practices and use its best efforts to preserve
intact the business related to the Product Lines and relationships with third
parties. Without limiting the generality of the foregoing, from the date hereof
until the Closing Date, Seller will not:
(a) sell, lease, license or otherwise dispose of any of the
Purchased Assets or other property relating to the Product Lines except
(i) pursuant to existing contracts or commitments and (ii) in the
ordinary course consistent with past practices;
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(b) declare, set aside or pay any dividend or make any other
distribution of assets of any kind whatsoever with respect to any
Purchased Assets or other ownership interests in the Product Lines
other than in the ordinary course of business; or
(c) agree or commit to do any of the foregoing.
Seller will not (i) take or agree or commit to take any action that would make
any representation and warranty of Seller under this Agreement on the date of
its execution and delivery inaccurate in any respect at, or as of any time prior
to, the Closing Date or (ii) omit or agree or commit to omit to take any action
necessary to prevent any such representation or warranty from being inaccurate
in any respect at any such time.
5.02. ACCESS TO INFORMATION. From the date hereof until the Closing
Date, Seller (a) will give, Buyer, its counsel, financial advisors, financing
sources, auditors and other authorized representatives full access to the
offices, properties, books and records of Seller relating to the Product Lines,
(b) will furnish to Buyer, its counsel, financial advisors, auditors and other
authorized representatives such financial and operating data and other
information relating to the Product Lines of Seller as such Persons may
reasonably request, and (c) will instruct the employees, counsel and financial
advisors of Seller to cooperate with Buyer in its investigation of the Product
Lines of Seller; PROVIDED that no investigation pursuant to this Section shall
affect any representation or warranty given by Seller hereunder.
5.03. NOTICES OF CERTAIN EVENTS. Seller will promptly notify Buyer of:
(a) any notice or other communication from any Person alleging
that the consent of such Person is or may be required in connection
with the transactions contemplated by this Agreement;
(b) any notice or other communication from any governmental or
regulatory agency or authority in connection with the transactions
contemplated by this Agreement; and
(c) any actions, suits, claims, investigations or proceedings
commenced or, to its knowledge threatened against, relating to or
involving or otherwise affecting the Purchased Assets or that otherwise
relate to the consummation of the transactions contemplated by this
Agreement.
5.04. CONFIDENTIALITY. Seller will hold, and will use its best efforts
to cause its respective officers, directors, employees, accountants, counsel,
consultants, advisors and agents to hold, in confidence, unless compelled to
disclose by judicial or administrative process or by other requirements of law,
all confidential documents and information concerning Buyer furnished to Seller
in connection with the transactions contemplated by this Agreement, and (after
the Closing Date) all confidential documents and information concerning Seller,
except to the extent that such information can be shown by Seller to have been
(i) previously known on a nonconfidential basis
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by Seller, (ii) in the public domain through no fault of Seller, or (iii) later
lawfully acquired by Seller from sources other than Seller or Buyer; PROVIDED
that Seller may disclose such information to its respective officers, directors,
employees, accountants, counsel, consultants, advisors and agents in connection
with the transactions contemplated by this Agreement so long as such persons are
informed by Seller of the confidential nature of such information and are
directed by Seller to treat such information confidentially. The obligation of
Seller to hold any such information in confidence shall be satisfied if they
exercise the same care with respect to such information as they would take to
preserve the confidentiality of their own similar information but in no event
less than a reasonable degree of care. If this Agreement is terminated, Seller
will, and will use its best efforts to cause their respective officers,
directors, employees, accountants, counsel, consultants, advisors and agents to,
destroy or deliver to Buyer, upon request, all documents and other materials,
and all copies thereof, obtained by Seller, or on its behalf from Buyer in
connection with this Agreement that are subject to such confidence.
ARTICLE VI
COVENANTS OF BUYER
Buyer agrees that:
6.01. CONFIDENTIALITY. Prior to the Closing Date and after any
termination of this Agreement in the event the Closing does not occur, Buyer and
its Affiliates will hold, and will use their best efforts to cause their
respective officers, directors, employees, accountants, counsel, consultants,
advisors and agents to hold, in confidence, unless compelled to disclose by
judicial or administrative process or by other requirements of law, all
confidential documents and information concerning the Product Lines or Seller
furnished to Buyer or its Affiliates in connection with the transactions
contemplated by this Agreement, except to the extent that such information can
be shown by Buyer to have been (i) previously known on a nonconfidential basis
by Buyer, (ii) in the public domain through no fault of Buyer or (iii) later
lawfully acquired by Buyer from sources other than Seller; PROVIDED that Buyer
may disclose such information to its officers, directors, employees,
accountants, counsel, consultants, advisors and agents in connection with the
transactions contemplated by this Agreement so long as such persons are informed
by Buyer of the confidential nature of such information and are directed by
Buyer to treat such information confidentially. The obligation of Buyer and its
Affiliates to hold any such information in confidence shall be satisfied if they
exercise the same care with respect to such information as they would take to
preserve the confidentiality of their own similar information but in no event
less than a reasonable degree of care. If this Agreement is terminated, Buyer
and its Affiliates will, and will use their best efforts to cause their
respective officers, directors, employees, accountants, counsel, consultants,
advisors and agents to, destroy or deliver to Seller, upon request, all
documents and other materials, and all copies thereof, obtained by Buyer or its
Affiliates or on their behalf from Seller in connection with this Agreement that
are subject to such confidence.
6.02. ACCESS. On and after the Closing Date, Buyer will afford promptly
to Seller and its agents reasonable access to its properties, books, records,
employees and auditors to the extent
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necessary to permit Seller to determine any matter relating to its rights and
obligations hereunder or to any period ending on or before the Closing Date;
PROVIDED, HOWEVER, that any such access by Seller shall not unreasonably
interfere with the conduct of the business of Buyer.
6.03 TRADEMARK LICENSE AND ACCESS TO SOURCE CODE.
(a) Buyer hereby grants to Seller beginning as of the Closing
Date and ending on June 30, 1998 a non-exclusive, revocable,
non-transferable, fully paid-up and personal license to reproduce and
use the trademarks and logos set forth on Schedule 3.04 (the
"Trademarks") solely in connection with certain maintenance service
obligations of Seller arising under the Maintenance Contracts. Seller
shall maintain the quality of the maintenance services using the
Trademarks at a level at least equal to the quality of the maintenance
services provided by Seller prior to the Closing Date. Notwithstanding
the foregoing, Seller shall not derogate Buyer's rights in the
Trademarks, and shall take no action that would interfere with or
diminish those rights. Seller acknowledges the great value of the good
will associated with the Trademarks and further acknowledges that Buyer
is as of the Closing Date the sole and exclusive owner of the
Trademarks and the goodwill associated therewith and that any use of
the Trademarks by Seller pursuant to this license shall inure to the
benefit of Buyer. Upon Buyer's reasonable request, Seller shall deliver
to Buyer examples of any such use of the Trademarks by Seller.
(b) Subject to Section 5.04 hereof, Buyer hereby grants to
Seller as of the Closing Date and ending on June 30, 1998 a
non-exclusive, revocable, non-transferable, fully paid-up and personal
license to (i) have access to the source code and related materials
with respect to the Product Lines and (ii) use such source code and
related materials, in both cases solely in connection with the
performance by Seller of certain maintenance service obligations
arising under the Maintenance Contracts.
ARTICLE VII
COVENANTS OF PARTIES
The parties hereto agree that:
7.01. BEST EFFORTS; FURTHER ASSURANCES.
(a) Subject to the terms and conditions of this Agreement,
each party will use its best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary or
desirable under applicable laws and regulations to consummate the
transactions contemplated by this Agreement. Seller and Buyer each
agree to execute and deliver such other documents, certificates,
agreements and other writings and to take such other actions as may be
necessary or desirable in order to consummate or implement
expeditiously the transactions contemplated by this Agreement and to
vest in Buyer good and marketable title to the Purchased Assets.
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(b) Seller hereby constitutes and appoints, effective as of
the Closing Date, Buyer and its successors and assigns as the true and
lawful attorney of Seller with respect to the Product Lines with full
power of substitution in the name of Buyer or in the name of Seller,
but for the benefit of Buyer (i) to collect for the account of Buyer
any items of Purchased Assets and (ii) to institute and prosecute all
proceedings which Buyer may in its sole discretion deem proper in order
to assert or enforce any right, title or interest in, to or under the
Purchased Assets, and to defend or compromise any and all actions,
suits or proceedings in respect of the Purchased Assets. Buyer shall be
entitled to retain for its account any amounts collected pursuant to
the foregoing powers, including any amounts payable as interest in
respect thereof, other than the amounts due Seller as per this
Agreement.
7.02. CERTAIN FILINGS. Seller and Buyer shall cooperate with one
another (a) in determining whether any action by or in respect of, or filing
with, any governmental body, agency, official or authority is required, or any
actions, consents, approvals or waivers are required to be obtained from parties
to any material contracts, in connection with the consummation of the
transactions contemplated by this Agreement and (b) in taking such actions or
making any such filings, furnishing information required in connection therewith
and seeking timely to obtain any such actions, consents, approvals or waivers.
ARTICLE VIII
CONDITIONS TO CLOSING
8.01. CONDITIONS TO THE OBLIGATIONS OF EACH PARTY. The obligations of
Buyer and Seller to consummate the Closing are subject to the satisfaction, or
waiver by each of Buyer and Seller respectively, of the following conditions:
(a) No proceeding challenging this Agreement or the
transactions contemplated hereby or seeking to prohibit, alter, prevent
or materially delay the Closing shall have been instituted by any
Person before any court, arbitrator or governmental body, agency or
official and be pending.
(b) Each other party shall have executed and delivered each of
the Ancillary Agreements to be entered into by it at Closing, in each
case substantially in the form attached as an exhibit to this
Agreement.
(c) No provision of any applicable law or regulation and no
judgment, injunction, order or decree shall prohibit the consummation
of the Closing.
(d) All actions by or in respect of or filings with any
governmental body, agency, official or authority required to permit the
consummation of the Closing shall have been obtained.
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-15-
8.02. CONDITIONS TO OBLIGATIONS OF BUYER. The obligation of Buyer to
consummate the Closing is subject to the satisfaction or waiver by Buyer of the
following further conditions:
(a)(i) Seller shall have performed in all material respects
all of its obligations hereunder required to be performed on or prior
to the Closing Date, (ii) the representations and warranties of Seller
contained in this Agreement at the time of its execution and delivery
and in any certificate or other writing delivered by Seller pursuant
hereto, disregarding all qualifications and exceptions contained
therein relating to materiality or Material Adverse Effect, shall be
true at and as of the Closing Date, as if made at and as of such date
with only such exceptions as would not in the aggregate reasonably be
expected to have a Material Adverse Effect and (iii) Buyer shall have
received a certificate signed by an officer of Seller to the foregoing
effect.
(b) No court, arbitrator or governmental body, agency or
official shall have issued any order, and there shall not be any
statute, rule or regulation, restraining the effective operation by
Buyer of the business of Seller after the Closing Date, and no
proceeding challenging this Agreement or the transactions contemplated
hereby or seeking to prohibit, alter, prevent or materially delay the
Closing shall have been instituted by any Person before any court,
arbitrator or governmental body, agency or official and be pending.
(c) Seller shall have received all consents, authorizations or
approvals from the governmental agencies referred to in Section 3.11,
in each case in form and substance reasonably satisfactory to Buyer,
and no such consent, authorization or approval shall have been revoked.
(d) Buyer shall have completed a due diligence investigation
of Seller, the Product Lines, the Purchased Assets and, the Assumed
Liabilities, with results satisfactory to Buyer in its sole discretion.
(e) Seller shall execute and deliver to Buyer the Ancillary
Agreements.
(f) Seller shall have received all consents necessary to the
assignment of the Maintenance Contracts to Buyer, in each case in form
and substance reasonably satisfactory to Buyer, and no such consent
shall have been revoked.
(g) Buyer shall have received all other closing documents
specified in Section 2.06 of this Agreement and all other closing
documents that it may reasonably request, all in form and substance
reasonably satisfactory to Buyer.
8.03. CONDITIONS TO OBLIGATION OF SELLER. The obligation of Seller to
consummate the Closing is subject to the satisfaction or waiver by Seller of the
following further conditions:
(a)(i) Buyer shall have performed in all material respects all
of its obligations hereunder required to be performed by it at or prior
to the Closing Date, (ii) the
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representations and warranties of Buyer contained in this Agreement at
the time of its execution and delivery and in any certificate or other
writing delivered by Buyer pursuant hereto shall be true in all
material respects at and as of the Closing Date, as if made at and as
of such date and (iii) Seller shall have received a certificate signed
by an officer of Buyer to the foregoing effect.
(b) No proceeding challenging this Agreement or the
transactions contemplated hereby or seeking to prohibit, alter, prevent
or materially delay the Closing shall have been instituted by any
Person before any court, arbitrator or governmental body, agency or
official and be pending.
(c) Seller shall have received all items specified in Section
2.06 of this Agreement and all other closing documents that they may
reasonably request, all in form and substance reasonably satisfactory
to Seller.
ARTICLE IX
TERMINATION
9.01. GROUNDS FOR TERMINATION. This Agreement may be terminated at any
time prior to the Closing:
(a) by mutual written consent duly authorized by Buyer and
Seller;
(b) by either Seller or Buyer, if the Agreement shall not have
been consummated by January 16, 1998; PROVIDED, HOWEVER, that the right
to terminate this Agreement under this Section 9.01(b) shall not be
available to any party whose action or failure to act has been a
principal cause of or resulted in the failure of the Closing to occur
on or before such date and such action or failure to act constitutes a
breach of this Agreement;
(c) by either Seller or Buyer, if a court of competent
jurisdiction or governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any
other action (an "ORDER"), in any case having the effect of permanently
restraining, enjoining or otherwise prohibiting the transaction
contemplated hereunder, which order, decree or ruling is final and
nonappealable;
(d) by Buyer, if there shall have occurred any Material
Adverse Change in the financial condition, results of operations,
business, properties, assets or operations of the Product Lines since
the date of this Agreement;
(e) by Buyer, upon breach of any representation, warranty,
covenant or agreement on the part of Seller set forth in this
Agreement, or if any representation or warranty of Seller shall have
become untrue, in either case such that the conditions set forth in
Section 8.02(a) would not be satisfied as of the time of such breach or
as of the
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time such representation or warranty shall have become untrue,
provided, that if such inaccuracy in representations and warranties of
Seller, or breach by Seller is curable by Seller through the exercise
of its commercially reasonable efforts within five (5) days of the time
such representation or warranty shall have become untrue or such
breach, then Buyer may not terminate this Agreement under Section
9.01(e) during such five-day period provided Seller continues to
exercise such commercially reasonable efforts;
(f) by Seller, upon a breach of any representation, warranty,
covenant or agreement on the part of Buyer set forth in this Agreement,
or if any representation or warranty of Buyer shall have become untrue,
in either case such that the conditions set forth in Section 8.03(a)
would not be satisfied as of the time of such breach or as of the time
such representation or warranty shall have become untrue, provided,
that if such inaccuracy in Buyer's representations and warranties or
breach by Buyer is curable by Buyer through the exercise of its
commercially reasonable efforts within five (5) days of the time such
representation or warranty shall have become untrue or such breach,
then Seller may not terminate this Agreement under this Section 9.01(f)
during such five-day period provided Buyer continues to exercise such
commercially reasonable efforts.
9.02. NOTICE OF TERMINATION; EFFECT OF TERMINATION. Any termination of
this Agreement under Section 9.01 above will be effective immediately upon the
delivery of written notice of the terminating party to the other parties hereto.
In the event of the termination of this Agreement as provided in Section 9.01,
this Agreement shall be of no further force or effect, except (i) as set forth
in this Section 9.02, Section 9.03 and Article X (Miscellaneous), each of which
shall survive the termination of this Agreement, and (ii) nothing herein shall
relieve any party from liability for any willful breach of this Agreement.
9.03. PROCEDURE UPON TERMINATION. In the event of the termination of
this Agreement, Buyer or Seller so terminating may direct its or their officers
or representatives, respectively, not to consummate the transaction contemplated
by this Agreement. In the event this Agreement is terminated, the agreements of
Seller and Buyer contained in Sections 5.05 and 6.01 shall survive such
termination.
ARTICLE X
MISCELLANEOUS
10.01. NOTICES. All notices, requests and other communications to a
party hereunder shall be in writing and shall be sufficiently given if delivered
in person, sent by telecopy, facsimile, reputable express overnight courier
service or sent by registered or certified mail, postage prepaid, and shall be
given,
if to Buyer, to:
National Transaction Network, Inc.
000 Xxxxxxxx Xxxx
00
-00-
Xxxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Chief Financial Officer
with a copy to:
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
if to Seller, to:
BancTec USA, Inc.
000 Xxxxxxxxx Xxxxxx Xxxxx Xxxx
Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxx Xxxxxxxx
with a copy to:
BancTec, Inc.
0000 XXX Xxxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: General Counsel
or at such other address for a party as shall be specified by like notice.
10.03. AMENDMENTS; NO WAIVERS.
(a) Any provisions of this Agreement may be amended
or waived prior to the Closing Date if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by Buyer
and Seller, or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by either party in exercising
any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right,
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power or privilege. The rights and remedies herein provided shall be
cumulative and not exclusive of any rights or remedies provided by law.
10.04. EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with this Agreement shall be paid by the party
incurring such cost or expense.
10.05. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that this Agreement,
including the representations and warranties herein, may not be assigned by any
party without the prior written consent of the other parties, except that either
party may assign this Agreement to a parent, subsidiary, or corporate purchaser
of substantially all of its assets.
10.06. GOVERNING LAW. This Agreement shall be construed in accordance
with and governed by the laws of the Commonwealth of Massachusetts, without
regard to the conflicts of law rules of such state.
10.07. COUNTERPARTS; EFFECTIVENESS. This Agreement may be signed in two
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received a counterpart
hereof signed by the other party hereto.
10.08. ENTIRE AGREEMENT. This Agreement and the Service Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings and
negotiations, both written and oral, between the parties with respect to the
subject matter hereof and thereof. None of this Agreement and the Service
Agreement, nor any provision hereof or thereof, is intended to confer upon any
person other than the parties hereto any rights or remedies hereunder or
thereunder.
10.09. CAPTIONS. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
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IN WITNESS WHEREOF, the parties hereto have set their hands, and duly
authorized this Agreement by their authorized officers as of the day and year
first above written.
NATIONAL TRANSACTION NETWORK, INC.
By: /S/ XXXXXX X. XXXXXX
----------------------------
Title: VICE PRESIDENT OF FINANCE
BANCTEC USA, INC.
By: /S/ XXX X. XXXXXX
---------------------------
Title: SENIOR VICE PRESIDENT
21
EXHIBIT A
XXXX OF SALE AND INSTRUMENT OF ASSIGNMENT AND ASSUMPTION
This Xxxx of Sale and Instrument of Assignment and Assumption (the
"INSTRUMENT") dated as of January 10, 1998 by and between National Transaction
Network, Inc., a Delaware corporation ("Buyer") and BancTec USA, Inc., a
Delaware corporation.
W I T N E S S E T H
WHEREAS, Buyer and the Seller have entered into an Asset Purchase
Agreement dated as of January 10, 1998 (the "PURCHASE AGREEMENT"), providing
for, among other things, the purchase and sale of the Purchased Assets;
WHEREAS, the Purchase Agreement provides, among other things, for
the Seller to sell, transfer, assign and deliver, and cause to be sold,
transferred, assigned and delivered, to Buyer the Purchased Assets for the
consideration described in the Purchase Agreement;
WHEREAS, the Purchase Agreement provides, among other things, for
the Buyer to assume and agree to pay, perform and discharge the Assumed
Liabilities; and
WHEREAS, Seller and Buyer now desire to carry out the intents and
purposes of the Purchase Agreement by the execution and delivery by Seller to
Buyer of this Instrument evidencing the sale, conveyance, transfer and
assignment to Buyer by Seller of the Purchased Assets and the assumption by
Buyer of the Assumed Liabilities.
NOW, THEREFORE, in consideration of the mutual covenants and other
good and valuable consideration set forth in the Purchase Agreement, the receipt
and sufficiency of which are hereby acknowledged, and upon the terms and subject
to the conditions set forth in the Purchase Agreement;
1. (a) Seller does hereby sell, convey, transfer, assign and deliver to
Buyer, its successors and assigns all of its right, title and interest in, to
and under the Purchased Assets; PROVIDED, that no sale, transfer, assignment or
delivery shall be made if an attempted sale, assignment, transfer or delivery,
without the consent of a third party, would constitute a breach or other
contravention thereof or in any way adversely affect the rights of Buyer or
Seller thereunder;
(b) To have and to hold the same unto the Buyer and its successors and
assigns forever.
2. Buyer does hereby accept all right title and interest of Seller in, to
and under all of the Purchased Assets (except as aforesaid) and Buyer assumes
and agrees to pay, perform and discharge promptly and fully when due all of the
Assumed Liabilities and to perform all of the obligations of Seller to be
performed under the Contracts.
22
3. After the delivery of this Instrument, the Seller shall upon the
request of Buyer execute and deliver such additional documents and instruments,
and perform such additional acts, as may be reasonably required to perfect
Buyer's right, title and interest in and to the Purchased Assets.
4. If there is any conflict as to the terms of this Instrument and the
Purchase Agreement, then the terms of the Purchase Agreement shall prevail.
5. Capitalized terms used and not otherwise defined in this Instrument
shall have the respective meanings ascribed to such terms in the Purchase
Agreement.
6. This Xxxx of Sale shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without regard to the principles
of conflicts of laws thereof.
[Remainder of page intentionally left blank]
23
IN WITNESS WHEREOF, the parties hereto have caused this Instrument
to be duly executed as of the day and year first above written.
NATIONAL TRANSACTION NETWORK, INC.
/S/ XXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President of Finance
BANCTEC USA, INC.
By: /S/ XXX XXX X. XXXXXX
----------------------------
Name:
Title:
24
EXHIBIT B
ASSIGNMENT OF TRADEMARKS
WHEREAS, BancTec USA, Inc., a Delaware corporation having a principal
place of business at 0000 XXX Xxxxxxx, Xxxxxx, Xxxxx ("Seller"), is the owner of
the entire right, title, and interest in and to certain U.S. and foreign
trademarks, servicemarks, logos and trademark registrations and applications
therefor as specified in SCHEDULE A attached hereto and made a part hereof (the
"Trademarks");
WHEREAS, National Transaction Network, Inc., a Delaware corporation
having a principal place of business at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000 ("Buyer"), has agreed to acquire the entire right, title,
and interest in and to the Product Lines, as defined in a certain Asset Purchase
Agreement by and between the Buyer and Seller dated as of January 10, 1998 (the
"Purchase Agreement"), including the Trademarks; and
WHEREAS, pursuant to the Purchase Agreement, Seller has agreed to
execute such additional instruments as may be necessary or desirable to confirm
said acquisition of the Assets by Buyer.
NOW, THEREFORE, in consideration of the foregoing, as well as for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Seller hereby sells, assigns, transfers, and sets over to Buyer,
its successors and assigns, the entire right, title and interest of Seller in
and to the Trademarks, together with the goodwill of the business in which the
Trademarks are used and which goodwill is symbolized by the Trademarks, and
including the rights to recover damages, profits and other compensation for
infringement, including past infringement, of the Trademarks and to file and
obtain renewals thereof, said sale, assignment, transfer, and setting over being
effective as of the date hereof.
After the delivery of this Assignment, Seller shall, upon request of
Buyer, execute and deliver such additional documents and instruments, and
perform such additional acts, as may be necessary or desirable to perfect
Buyer's right, title, and interest in and to the Trademarks acquired by Buyer
hereunder.
IN WITNESS WHEREOF, Seller has caused this Assignment of Trademarks to
be executed by its duly authorized officer as of the 10th day of January, 1998.
BANCTEC USA, INC.
ATTEST: By: /S/ XXX X. XXXXXX
----------------------------
Name:
/S/ XXXXXX XXXXXXX Title:
----------------------------
Name:
00
XXXXXXXXXXXXXX
Xxxxx xx Xxxxx
)
County of Dallas ) ss.
On 1/10, 1998 before me personally appeared Xxx X. Xxxxxx being duly
sworn and known by me to be the Senior Vice President of BancTec USA, Inc., and
the one who executed the foregoing instrument and subscribed the same in my
presence and acknowledged the same to be his free act and deed on behalf of and
as authorized by BancTec USA, Inc.
/S/ XXXXX XXXX XXXX
---------------------------------
Notary Public
26
SCHEDULE A
----------
MAINSAIL
-----------------------
SEMAPHORE
-----------------------
27
SCHEDULE 2.01(a)
MAINTENANCE CONTRACTS AND SELLER'S OTHER WRITTEN
CONTRACTS, AGREEMENTS AND LICENSES
ASSOCIATED GROCERS:
1. Software License Document, 12/12/89, with XxXxxx Xxxxx.
2. Supplement to License Document, 11/27/90, with XxXxxx Xxxxx.
3. Product Supplement #1 to Master Agreement, 5/3/93, with XxXxxx Xxxxx.
4. Change Memorandum #1 to Supplement #1 (513/93) to Master License Agreement,
2/24/94, with BancTec
5. Maintenance Agreement, 12/7/89, with XxXxxx Xxxxx.
6. Master License Agreement, 3/4/96, with BancTec.
7. Supplement #1 to Master License Agreement, 3/15/96, with BancTec.
8. Supplement #3 to Master License Agreement, 3/4/96, with BancTec.
9. Change Memorandum #1 to Supplement #3 to Master License Agreement, 3/4/96,
with BancTec.
10. Appendix A Professional Service Fees To Product Supplements 1, 2 & 3,
3/15/96, with BancTec.
11. Master Maintenance Agreement, 3/4/96, with BancTec.
12. Supplement #1 to Master Maintenance Agreement, 3/4/96, with BancTec.
13. Supplement #2 to Master Maintenance Agreement, 7/22/96, with BancTec.
14. Supplement #6 to Master Maintenance Agreement, 10/9/97, with BancTec.
15. Supplement #7 to Master Maintenance Agreement, 10/9/97, with BancTec.
BROOKSHIRE'S
1. Master License Agreement, 9/23/94, with BancTec.
2. Supplement #1 to Master License Agreement, 9/23/94, with BancTec.
3. Appendix A Project Plan to Supplement #1 to Master License Agreement,
9/28/94, with BancTec.
4. Supplement #2 to Master License Agreement, 11/16/95, with BancTec.
5. Supplement #3 to Master License Agreement, 12/14/95, with BancTec.
6. Supplement #5 to Master License Agreement, 1/6/97, with BancTec.
7. Supplement #6 to Master License Agreement, 12/12/96, with BancTec.
8. Master Maintenance Agreement, 9/23/94, with BancTec.
9. Supplement #1 to Master Maintenance Agreement, 9/28/94, with BancTec.
10. Supplement #2 to Master Maintenance Agreement, 11/16/95, with BancTec.
11. Supplement #3 to Master Maintenance Agreement, 12/14/95, with BancTec.
12. Supplement #5 to Master Maintenance Agreement, 7/8/96, with BancTec.
13. Supplement #5 to Master Maintenance Agreement, 1/6/97, with BancTec.
14. Supplement #6 to Master Maintenance Agreement, 12/12/96, with BancTec.
28
H. E. BUTT
1. Master License Agreement, 11/29/93, with BancTec.
2. Supplement #1 to Master License Agreement, 11/29/93, with BancTec.
3. Change Memorandum #2 to Supplement #1 to Master License Agreement, 4/5/94,
with BancTec.
4. Supplement #2 to Master License Agreement, 9/1/94, with BancTec.
5. Supplement #3 to Master License Agreement, 4/11/95, with BancTec.
6. Supplement #4 to Master License Agreement, 2/2/96, with BancTec.
7. Supplement #6 to Master License Agreement, 7/24/97, with BancTec.
8. Master Maintenance Agreement, 11/29/93, with BancTec.
9. Supplement #1 to Master Maintenance Agreement, 11/29/93, with BancTec.
10. Supplement #2 to Master Maintenance Agreement, 3/7/95, with BancTec.
11. Supplement #3 to Master Maintenance Agreement, 3/7/95, with BancTec.
12. Supplement #4 to Master Maintenance Agreement, 4/11/95, with BancTec.
13. Supplement #6 to Master Maintenance Agreement, 2/2/96, with BancTec.
MENARD'S
1. Master License Agreement, 5/15/95, with BancTec.
2. Supplement #1 to Master License Agreement, 5/15/95, with BancTec.
3. Supplement #2 to Master License Agreement, 2/20/96, with BancTec.
4. Master Maintenance Agreement, 5/15/96, with BancTec.
5. Supplement #1 to Master Maintenance Agreement, 5/15/95, with BancTec.
6. Supplement #2 to Master Maintenance Agreement, 2/20/96, with BancTec.
SEAWAY
1. Master License Agreement, 12/22/93, with BancTec.
2. Modification Supplement #1 to Master License Agreement, 12/22/93, with
BancTec.
3. Product Supplement #1 to Master License Agreement, 12/23/93, with BancTec.
4. Addendum to Product Supplement #1 to Master License Agreement, 12/18/95,
with BancTec.
5. Product Supplement #2 to Master License Agreement, 12/22/93, with BancTec.
6. Addendum to Product Supplement #2 to Master License Agreement, 12/18/95,
with BancTec.
7. Product Supplement #3 to Master License Agreement, 12/22/93, with BancTec.
8. Addendum to Product Supplement #3 to Master License Agreement, 12/18/95,
with BancTec.
9. Sublicense Supplement #1 to Master License Agreement, 12/15/94, with
BancTec.
10. Master Maintenance Agreement, 12/22/93, with BancTec.
11. Supplement #1 to Master Maintenance Agreement, 12/22/93, with BancTec.
12. Addendum to Supplement #1 to Master Maintenance Agreement, 12/18/95, with
BancTec.
13. Supplement #2 to Master Maintenance Agreement, 12/22/93, with BancTec.
29
14. Addendum to Supplement #2 to Master Maintenance Agreement, 12/18/95, with
BancTec.
15. Supplement #3 to Master Maintenance Agreement, 12/22/93, with BancTec.
16. Addendum to Supplement #3 to Master Maintenance Agreement, 12/18/95, with
BancTec.
17. Supplement #4 to Master Maintenance Agreement, 5/1/95, with BancTec.
18. Supplement #5 to Master Maintenance Agreement, 6/1/95, with BancTec.
SUPER DISCOUNT MARKETS
1. Master License Agreement, 6/13/95, with BancTec.
2. Product Supplement #1 to Master License Agreement, 6/13/95, with BancTec.
3. Amendment #1 Client Services, 6/13/95, with BancTec.
4. Master Maintenance Agreement, 6/13/95, with BancTec.
5. Supplement #1 to Master Maintenance Agreement, 6/13/95, with BancTec.
6. Supplement #2 to Master Maintenance Agreement, 6/4/97, with BancTec.
UKROP'S SUPER MARKETS
1. Master License Agreement, 12/21/92, with XxXxxx Xxxxx.
2. Product Supplement #1 to Master License Agreement, 12/21/92, with XxXxxx
Xxxxx.
3. Appendix A Project plan to Product Supplement #1, 12/20/93, with BancTec.
4. Appendix B Licensed Program Specifications to Product Supplement #1,
12/21/92, with XxXxxx Xxxxx.
5. Change Memorandum #1 to Product Supplement #1 to Master License Agreement,
12/20/93, with BancTec.
6. Change Memorandum #2 to Product Supplement #1 to Master License Agreement,
12/20/93, with BancTec.
7. Change Memorandum #7 to Product Supplement #1 to Master License Agreement,
5124194, with BancTec.
8. Change Memorandum #1 to Appendix C Project Implementation Services to
Product Supplement #1 to Master License Agreement, 3/24/94, with BancTec.
9. Change Memorandum #1 to Appendix C Project Implementation Services to
Product Supplement #1 to Master License Agreement, 3/24/94, with BancTec.
10. Change Memorandum #2 to Appendix C Project Implementation Services to
Product Supplement #1 to Master License Agreement, 3/31/95, with BancTec.
11. Appendix D Special Terms to Product Supplement #1 to Master License
Agreement, 1/4/93, with XxXxxx Xxxxx.
12. Product Supplement #2 to Master License Agreement, 3/24/94, with BancTec.
13. Appendix A Project Plan to Product Supplement #2 to Master License
Agreement, 3/24/94, with BancTec.
14. Appendix B Licensed Program Specifications to Product Supplement #2 to
Master License Agreement, 3/24/94, with BancTec.
15. Product Supplement #3 to Master License Agreement, 8/20/95, with BancTec.
16. Product Supplement #4 to Master License Agreement, 9/18/96, with BancTec.
17. Product Supplement #5 to Master License Agreement, 3/3/97, with BancTec.
30
18. Customization Supplement #1 to Master License Agreement, 12/21/92, with
XxXxxx Xxxxx.
19. Sublicense Supplement #1 to Master License Agreement, 12/21/92, with XxXxxx
Xxxxx.
20. Master Maintenance Agreement, 12/21/92, with XxXxxx Xxxxx.
21. Supplement #1 to Master Maintenance Agreement, 12/21/92, with XxXxxx Xxxxx.
22. Supplement #2 to Master Maintenance Agreement, 12/21/92, with XxXxxx Xxxxx.
23. Supplement #3 to Master Maintenance Agreement, 3/29/95, with BancTec.
24. Supplement #4 to Master Maintenance Agreement, 6/1/96, with BancTec.
25. Supplement #5 to Master Maintenance Agreement, 9/18/96, with BancTec.
UNITED GROCERS
1. Master License Agreement, 2/21/91, with XxXxxx Xxxxx.
2. Supplement #1 to Master License Agreement, 2/21/91, with XxXxxx Xxxxx.
3. Supplement #2 to Master License Agreement, 2/15/92, with XxXxxx Xxxxx.
4. Supplement #3 to Master License Agreement, 6/19/95, with BancTec.
5. Supplement #4 to Master License Agreement, 9/20/97, with BancTec.
6. Master Maintenance Agreement, 2/21/91, with XxXxxx Xxxxx.
7. Supplement #1 to Master Maintenance Agreement, 2/21/91, with XxXxxx Xxxxx.
8. Supplement #3 to Master Maintenance Agreement, 6/19/95, with BancTec.
9. Supplement #4 to Master Maintenance Agreement, 6/1/96, with BancTec.
10. Supplement #5 to Master Maintenance Agreement, 9120197, with BancTec.
31
SCHEDULE 3.04(A)
REPRESENTATION AND WARRANTIES OF SELLER - INTELLECTUAL PROPERTY
(i) the nature of such Intellectual Property: Software as identified in
SCHEDULE 2.01 (b)
(ii) the owner or owners of such Intellectual Property: BancTec USA, Inc.
(iii) all persons other than Seller who have an ownership or economic interest
in such Intellectual Property: None
(iv) the jurisdictions by or in which such Intellectual Property is recognized
without regard to registration or in which the Intellectual Property has
been issued or registered or in which an application for such issuance of
registration has been filed, including the respective registration or
application numbers: Product Lines are not registered
(v) licenses, sublicenses and other agreements as to which Seller,
consultants, distributors or resellers is a party and pursuant to which
any person is authorized to use such Intellectual Property, including the
identity of all parties thereto, a description of the nature and subject
matter thereof, the applicable royalty and the term thereof: Only the
parties identified in SCHEDULE 2.01(a) are authorized to use such
Intellectual Property and there is no applicable royalty rights assigned.
32
SCHEDULE 3.9
REPRESENTATIONS AND WARRANTIES OF SELLER
CONSENTS
There are no consents binding upon Seller for the Intellectual Property.
