ASSET PURCHASE AGREEMENT
BY AND BETWEEN
FACTUAL DATA CORP.
AND
FD NORTHWEST, INC.
DATED AS OF JULY 31, 1998
ASSET PURCHASE AGREEMENT
TABLE OF CONTENTS
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Page
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RECITALS 1
ARTICLE I 1
DEFINITIONS 1
ARTICLE II 4
ACQUISITION OF THE ASSETS 4
2.1 Delivery Of Assets 4
2.2 Purchase Price for Assets 5
2.3 Assumed Liabilities 6
ARTICLE III 7
REPRESENTATIONS AND WARRANTIES OF SELLER AND SHAREHOLDERS 7
3.1 Organization and Qualification Of Seller 7
3.2 Authorized Capitalization 7
3.3 Authorization 8
3.4 Product Rights 8
3.5 Bulk Sale Law 8
3.6 No Conflicting Agreements 9
3.7 Compliance with Applicable Law 9
3.8 Material Misstatements or Omissions 9
3.9 No Known Adverse Effects 9
3.10 Consents and Approvals 10
3.11 Subsidiaries 10
3.12 Litigation 10
3.13 Brokers 10
3.14 Taxes 10
3.15 Ownership 11
3.16 Accounts 11
3.17 License Agreements 12
3.18 Intellectual Property 12
3.19 Customers 12
3.20 Contracts 12
3.21 Financial Statements 13
3.22 Absence of Undisclosed or Contingent
Liabilities 13
3.23 No Material Adverse Changes 13
3.24 Absence of Developments 14
3.25 Title to Properties 14
3.26 Tax Matters 15
3.27 Tax Notices 16
3.28 Employees 17
3.29 Employee Benefit Plans 17
3.30 Gifts 19
3.31 Employee Health and Safety 19
3.32 Representations as to Knowledge 19
3.33 Representations Concerning Solvency 19
ARTICLE IV 20
PRE-CLOSING COVENANTS OF SELLER 20
4.1 Inspection of Properties and Books 20
4.2 Other Contracts 21
4.3 Ongoing Operation 21
4.4 Indebtedness 21
4.5 Records 22
4.6 Articles of Incorporation; Bylaws 22
4.7 Distributions or Dividends 22
4.8 Notice of Breach 22
4.9 Nondisclosure 22
4.10 Employment Matters 22
4.11 Insurance 23
4.12 Preservation of Business 23
4.13 Regulatory Filings 24
4.14 No Negotiations 24
4.15 Assignment of Contracts, Leases and
Other Agreements 25
4.16 Best Efforts 25
4.17 Additional Disclosure 25
ARTICLE V 25
POST-CLOSING COVENANTS 25
5.1 Further Assurances 26
5.2 Litigation Support 26
ARTICLE VI 26
REPRESENTATIONS AND WARRANTIES OF PURCHASER 26
6.1 Organization and Qualification of Purchaser 27
6.2 Authorization 27
6.3 No Conflicting Agreements 27
6.4 Compliance with Applicable Law 27
6.5 Litigation 27
6.6 Material Misstatements or Omissions 28
6.7 Consents and Approvals 28
6.8 Brokers 28
6.9 Representations as to Knowledge 28
ARTICLE VII 29
COVENANTS OF PURCHASER 29
7.1 Other Contracts 29
7.2 Additional Disclosure 29
7.3 Notice of Breach 29
7.4 Nondisclosure 29
7.5 Best Efforts 29
7.6 Regulatory Filings 30
7.7 Employment Agreements 30
7.8 Non-Compete and Confidentiality Agreements 30
ARTICLE VIII 31
CONDITIONS PRECEDENT TO CLOSING 31
8.1 Conditions Precedent to Obligations of
Seller 31
8.2 Conditions Precedent to Obligations of
Purchaser 34
ARTICLE IX 39
SURVIVAL OF REPRESENTATIONS AND WARRANTIES 39
ARTICLE X 40
INDEMNIFICATION 40
10.1 Indemnification 40
10.2 Limitation of Liability 41
10.3 Method of Asserting Claims 41
10.4 Payment of Claim 43
10.5 Other Rights and Remedies Not Affected 43
10.6 Post-Closing Adjustments and Right of
Offset 43
ARTICLE XI 44
AMENDMENT, TERMINATION AND BREACH 44
11.1 Amendment and Modification 44
11.2 Termination and Abandonment 44
ARTICLE XII 45
CLOSING 45
12.1 Closing 45
12.2 Allocations 45
12.3 Seller's Deliveries at Closing 45
12.4 Purchaser's Deliveries at Closing 48
12.5 Forwarding of Receivables and Payment of
Expenses 49
12.6 Removal of Personal Effects Following
Closing 49
13.1 Notice 49
13.2 Entire and Sole Agreement 50
13.3 Successors and Assigns 50
13.4 Expenses 51
13.5 Severability 51
13.6 Governing Law 51
13.7 Counterparts 51
13.8 Amendments 51
13.9 No Third Party Beneficiary 51
13.10 Headings 51
13.11 Disputes 52
13.12 Delivery of Exhibits 52
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into effective this 31st day of July,
1998, by and between FACTUAL DATA CORP., a Colorado corporation ("Purchaser"),
and FD NORTHWEST, INC., a Washington corporation ("Seller").
RECITALS
WHEREAS, on or about June 29, 1998, Purchaser issued a term sheet to
Seller ("Term Sheet") pursuant to which Purchaser indicated its desire to
proceed with the acquisition of certain assets of Seller; and
WHEREAS, the Term Sheet contemplated the parties would enter into a definitive
Asset Purchase Agreement which definitive agreement is as set forth below (the
"Agreement") and which shall supersede the Term Sheet in its entirety; and
WHEREAS, Purchaser desires to purchase, and Seller desires to sell, the assets
of Seller as described on Exhibit 2.1 hereto (the "Assets") and Purchaser
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desires to assume the liabilities of Seller described on Exhibit 2.3 hereto
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("Assumed Liabilities");
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and in reliance upon the representations and warranties
contained herein, the parties hereto agree as follows:
ARTICLE IIIIII
DEFINITIONS
The following terms used in this Agreement shall, unless the context
requires otherwise, have the meanings designated below:
Assets means the assets set forth on Exhibit 2.1 hereto.
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Assumed Liabilities means the liabilities set forth on Exhibit 2.3 hereto
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which may include but are not necessarily limited to, equipment or facility
leases.
Claim Notice has the meaning given to it in Article 10.3(a).
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Closing has the meaning given to it in Article 12.1.
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Closing Date has the meaning given to it in Article 12.1.
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Code means the Internal Revenue Code of 1986, as amended.
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Communication means collectively any publicity release, security filing,
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private placement memorandum or any other communication.
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Damages means any and all damages, claims, deficiencies, losses and expenses,
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as further defined in Article 10.1.
ERISA means the Employee Retirement Income Security Act of 1974, as amended,
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and any regulations, rules or orders promulgated thereunder.
Evaluation Material means Seller's documents, financial statements,
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information and materials which shall be used in connection with a due
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diligence review.
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Financial Statements has the meaning given to it in Article 3.22.
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Indemnified Party means the party claiming indemnification under Article X.
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Indemnifying Party means the party against whom indemnification claims are
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asserted under Article X.
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Intellectual Property means (a) all inventions (whether patentable or
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unpatentable and whether or not reduced to practice), all improvements thereto
and all patents, patent applications and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions and
reexaminations thereof, (b) all trademarks, services marks, trade dress,
logos, trade names and corporate names, together with all translations,
adaptations, derivations and combinations thereof and including all goodwill
associated therewith, and all applications, registrations and renewals in
connections therewith, (c) all copyrightable works, all copyrights and all
applications, registrations and renewals in connection therewith, (d) all mask
works and all applications, registration and renewals in connection therewith,
(e) all trade secrets and confidential business information (including ideas,
research and development, know-how, formulas, compositions, manufacturing and
production processes and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals), (f) all computer software
(including data and related documentation), (g) all other proprietary rights
and (h) all copies and tangible embodiments thereof (in whatever form or
medium).
Loss means Damages for which any claim may be asserted under Article X.
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Other Company Agreements means the Employment Agreement and Non-Compete and
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Confidentiality Agreement.
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Note shall have the meaning given it in Article 2.2
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Notice means the thirty day period which the indemnifying party shall have
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from the personal delivery or mailing of the Claim Notice.
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OSHA means the Occupational Safety and Health Act of 1970, as amended, and any
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regulations, rules or orders promulgated thereunder.
Purchase Price has the meaning given it in Article 2.2.
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Purchaser means Factual Data Corp., a Colorado corporation, or its assigns.
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Retained Accounts Receivable means accounts receivable retained by Seller and
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shall include receivables due for all work, labor and services performed by
Seller and billed by Seller in the normal course of business through and
including the day before Closing.
Seller means FD Northwest, Inc., a Washington corporation.
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Shareholders means all owners of capital stock of Seller at the date hereof
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and as of Closing.
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Tax or Taxes means any federal, state, local or foreign income, gross
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receipt, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code Section
59A), custom duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or
add-on minimum, estimating or other tax of any kind whatsoever, including any
interest, penalty or addition thereto, whether disputed or not.
Tax Return means any return, declaration, report, claim for refund or
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information return or statement relating to Taxes, including any schedule or
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attachment thereto, and including any amendment thereof.
Uniform Commercial Code means the Uniform Commercial Code applicable in the
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State of Washington.
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ARTICLE IVIV
ACQUISITION OF THE ASSETSOF THE ASSETS
Subject to the terms and conditions set forth in this Agreement:
2.1 DELIVERY OF ASSETS2.1 DELIVERY OF ASSETS. At the Closing, as
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defined below, Seller shall endorse and deliver such instruments, documents,
certificates or instructions as may be necessary to vest title to the Assets
set forth on Exhibit 2.1 hereto in Purchaser. Upon receipt of such documents,
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instruments, certificates or instructions, and upon the Closing,
Purchaser shall become the beneficial and record holder of the Assets and
entitled to all of the rights, benefits and privileges with respect thereto.
The Assets shall be delivered by Seller to Purchaser at the Closing and will
be free of all encumbrances, liens, security interests or other claims. At
the Closing, the Assets which will be transferred to Purchaser, and their
value, shall be as follows:
Asset Category Valuation(1)
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Fixed Assets $ 25,000.00
Contract Rights ____________
Intellectual Property(2) 402,132.00
Personnel Files ____________
Books and Records ____________
Non-Compete and Confidentiality
Agreement 5,000.00
Deposits 1,158.00
Prepaid Assets ___________
Goodwill ___________
_________________________
(1) The parties acknowledge and agree that the valuation of the Assets if
not determined at the date of execution of this Agreement, shall be made by
the parties not later than twenty (20) days prior to Closing.
(2) The Intellectual Property to be transferred shall include all rights
to trade names of Seller and all computer software programs, designed, written
or used by Seller, including but not limited to the source codes for all
programs.
Each of Seller and the Purchaser covenant that it will not take a
position on any income tax return or before any governmental agency or in any
judicial proceeding that is inconsistent in any way with this allocation.
2.2 PURCHASE PRICE FOR ASSETS2.2 PURCHASE PRICE FOR ASSETS. The
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aggregate purchase price for the Assets shall consist of $216,645 cash and a
promissory note for an aggregate amount of $216,645 which shall be delivered
to Seller at the Closing subject to and upon the terms and conditions hereof
and the representations and warranties contained herein, in the following
manner:
(a) At the Closing, Purchaser shall pay an aggregate cash
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consideration of $216,645 to the Seller, which shall be paid in the form of a
cashier's check or a wire transfer to a financial institution designated by
the Seller. Such payment shall represent $216,645 in currency of the United
States of America.
(b) Purchaser shall deliver to Seller a non-negotiable promissory note in
the aggregate principal amount of $216,645 (the "Note"). The Note shall be
issued by Purchaser on the following terms and conditions:
(i) The Note shall bear no interest and shall be due and payable in
24 equal monthly installments of principal, commencing September 1, 1998.
(ii) The Note, a copy of which is attached hereto as Exhibit 2.2(c)(i),
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shall be secured by a perfected subordinated second lien on all of the Assets
sold pursuant to this Agreement. The lien securing payment of the Note shall
be subordinated to one senior institutional bank or credit arrangement secured
by Purchaser at any time prior to or after the execution of this Agreement and
Seller agrees to execute a subordination agreement and intercreditor agreement
in form satisfactory to one senior debt lender at such time as a senior credit
facility is obtained by Purchaser. A security agreement and UCC-1 setting
forth the subordinated security interest in the form attached as Exhibit
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2.2(c)(ii) shall be executed at the Closing by Purchaser and filed by Seller
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with the Washington Secretary of State or other required regulatory agencies
or governmental entities in each state and entity in which a UCC filing may be
required.
(c) The parties contemplate that, subsequent to the Closing, an audit
of the financial records of Seller may be performed in accordance with
generally accepted accounting principles by independent certified public
accountants designated by the Purchaser, and at Purchaser's sole cost and
expense.
2.3 ASSUMED LIABILITIES2.3 ASSUMED LIABILITIES. As part of the
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consideration for the Assets, the Purchaser shall assume and pay, perform and
discharge the Assumed Liabilities described on Exhibit 2.3 hereto. The
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Purchaser will pay, perform and discharge the Assumed Liabilities as they
become due provided the Purchaser shall not be obligated to pay, perform or
discharge any obligation except to the extent that such obligation or
liability constitutes a valid and legally enforceable claim against Seller.
ARTICLE VV
REPRESENTATIONS AND WARRANTIES OF SELLER AND SHAREHOLDERSTIONS AND
WARRANTIES OF SELLER AND SHAREHOLDERS
Seller and Shareholders represent and warrant to Purchaser that the
statements contained in this Article III are true, correct and complete as of
the date of this Agreement and will, except as otherwise expressly provided in
this Agreement be true, correct and complete on the Closing Date (as though
made then and as though the Closing Date were substituted for the date of this
Agreement) as follows:
3.1 ORGANIZATION AND QUALIFICATION OF SELLER3.1 ORGANIZATION AND
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QUALIFICATION OF SELLER. The Seller is a corporation duly organized, validly
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existing and in good standing under the laws of the state of incorporation,
and is duly qualified and authorized to do business as a foreign corporation
and is in good standing in each jurisdiction, if any, in which the nature of
the business conducted by it or the properties owned, leased or operated by it
makes such qualification necessary or, if not, then such lack of
authorization will not have materially adversely affected the Purchaser's use
of the Assets. The Seller has all requisite corporate power and authority to
own, lease and operate its properties and to carry on its business as now
being conducted. The copies of the Articles of Incorporation (certified by
the Secretary of the State of the state of incorporation) and the Bylaws of
the Seller, both as amended to date, which have been delivered to Purchaser
and attached hereto as Exhibits 3.1(a) and 3.1(b), respectively, are complete
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and correct, and the Seller is not in default under or in violation of any
provision of its Articles of Incorporation or Bylaws. The minute books
(containing the records of meeting of the shareholders, the board of directors
and any committees of the board of directors), the stock certificate books and
the stock record books of the Seller, as delivered to Purchaser, are correct
and complete.
3.2 AUTHORIZED CAPITALIZATION3.2 AUTHORIZED CAPITALIZATION. The
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authorized capital stock of the Seller consists of 25,000 shares of Common
Stock, of which 25,000 shares are issued and outstanding as of the date of
this Agreement. All shares issued and outstanding as of the date of this
Agreement have been duly authorized and validly issued and are fully paid and
nonassessable. No shares of the Seller's capital stock are held in treasury.
The Seller has no authorized or outstanding stock or securities convertible
into or exchangeable for, or any authorized or outstanding option, warrant or
other right to subscribe for or to purchase, or convert any obligation into,
any unissued shares. There are no authorized or outstanding stock
appreciation, phantom stock, profit participation or similar rights with
respect to the Seller. There are no voting trusts, voting agreements, proxies
or other agreements or understandings with respect to the voting of the
capital stock of the Seller.
3.3 AUTHORIZATION3.3 AUTHORIZATION. This Agreement has been duly and
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validly executed and delivered by Seller and the Shareholders and the
agreements, representations and warranties contained herein constitute valid
and binding obligations, representations and warranties of Seller and the
Shareholders enforceable in accordance with their terms. Attached hereto as
Exhibit 3.2(a) is a Certificate which shall evidence the approval and
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authorization of the shareholder(s) of Seller and which shall be attested to
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by the President of Seller. This Agreement and the consummation of the
transactions contemplated hereby and thereby have been duly and unanimously
approved by the board of directors of Seller. Attached hereto as Exhibit
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3.2(b) is a certified copy of the Directors' Consent or a resolution passed
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pursuant to a duly and validly called meeting of the Board of Directors. This
Agreement constitutes, and all other agreements contemplated hereby to be
executed and delivered by the Seller will when executed and delivered
constitute, the legal, valid and binding obligations of, and be enforceable in
accordance with their respective terms against, the Seller.
3.4 PRODUCT RIGHTS3.4 PRODUCT RIGHTS. As of the Closing, subject to
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those limitations set forth in this Agreement, Seller has no rights with
respect to any trademarks and trade names.
3.5 BULK SALE LAW3.5 BULK SALE LAW. Seller has advised Purchaser that
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Seller is required to comply with the bulk sale provisions of the
Washington Uniform Commercial Code and will so comply.
3.6 NO CONFLICTING AGREEMENTS3.6 NO CONFLICTING AGREEMENTS. The
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execution and delivery of this Agreement by Seller does not, and consummation
by Seller of the transactions contemplated hereby will not, (a) violate any
existing term or provision of any law, regulation, order, writ, judgment,
injunction or decree applicable to Seller or the Assets, (b) conflict with or
result in a breach of any of the terms, conditions or provisions of the
Articles of Incorporation or Bylaws of Seller or of any agreement or
instrument to which Seller is a party, or (c) result in the creation or
imposition of any lien, charge, security interest, encumbrance, restriction or
claim upon the Assets.
3.7 COMPLIANCE WITH APPLICABLE LAW3.7 COMPLIANCE WITH APPLICABLE LAW.
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Except as set forth in Exhibit 3.7(a), Seller has not received any notice
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or information of any violation, probable violation or default by Seller under
any applicable law, regulation or order of any governmental department,
commission, board or agency or instrumentality, domestic or foreign, having
jurisdiction over Seller's operations which could materially adversely affect
the business, operations, financial condition, properties or assets of Seller,
or the ability to consummate the transaction contemplated hereby. To the best
of Seller's knowledge after diligent inquiry, Seller has operated its
business, and will continue to operate its business, in compliance with the
Fair Credit Reporting Act, the Real Estate Settlement Procedures Act, the Fair
Debt Collection Act and applicable state law. Additionally, Seller has given
notice of the sale of Assets to all government entities that require such
notice.
3.8 MATERIAL MISSTATEMENTS OR OMISSIONS3.8 MATERIAL MISSTATEMENTS OR
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OMISSIONS. Neither this Agreement nor any other document, certificate or
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statement furnished to Purchaser by or on behalf of Seller in connection with
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this Agreement contains any untrue statement of a material fact, or omits any
material fact necessary to make the statements contained herein or therein not
misleading in light of the context in which they were made.
3.9 NO KNOWN ADVERSE EFFECTS3.9 NO KNOWN ADVERSE EFFECTS. There is no
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fact known to Seller, its officers, directors or employees which
materially adversely affects or will materially adversely affect the Assets
which has not been set forth in writing in this Agreement or disclosed in the
other documents, certificates or written statements furnished to Purchaser by
or on behalf of Seller in connection herewith.
3.10 CONSENTS AND APPROVALS3.10 CONSENTS AND APPROVALS. The
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execution and delivery by Seller of this Agreement, and the performance by
Seller of its obligations hereunder, does not require Seller to obtain any
consent, approval, agreement, or action of, or make any filing with or give
any notice to, any corporation, person, entity, or firm or any public,
governmental or judicial authority except (i) such as have been duly obtained
or made, as the case may be, and or will be duly obtained and made and in full
force and effect as of the Closing, (ii) those as to which the failure to
obtain would have no material adverse effect on the Assets or the transactions
contemplated hereby, and (iii) approval of the Seller's Shareholders, which
shall be obtained prior to the execution hereof.
3.11 SUBSIDIARIES3.11 SUBSIDIARIES. Seller does not own, have an
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ownership interest in, or control any corporation, partnership, proprietorship
or other entity.
3.12 LITIGATION3.12 LITIGATION. Except as described in Exhibit 3.12,
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there are no actions, proceedings or investigations pending or threatened
against Seller or the Assets (and known to Seller) before any court or
administrative agency which could result in any material adverse change in the
operations or financial condition of Seller other than as identified
therein.
3.13 BROKERS3.13 BROKERS. All negotiations relative to this Agreement
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and the transactions contemplated hereby have been carried out by Seller
directly with representatives of Purchaser, without the intervention of any
person in such manner as to give rise to any valid claim by any person against
Purchaser for a finder's fee, brokerage commission, or similar payment. All
rights of indemnity under Article X hereof shall apply to any claim relating
to a Loss (hereinafter defined) arising out of this Agreement for any fee,
commission or similar payment.
3.14 TAXES3.14 TAXES. Seller shall pay all Taxes arising out of the
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transfer of the Assets and shall be responsible for all personal property
taxes for the business of Seller through the date of the Closing. Purchaser
shall not be responsible for any business, occupation, withholding or similar
Tax, or any Taxes of any kind related to the Assets or the business of Seller
for any period prior to the Closing.
3.15 OWNERSHIP3.15 OWNERSHIP. Seller is the owner, beneficially
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and of record, of all of the Assets as identified on Exhibit 2.1 hereto, free
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and clear of all liens, encumbrances, security agreements, equities, options,
claims, charges and restrictions, except as otherwise described on Exhibit
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3.15 hereto.
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3.16 XXXXXXXX0.16 ACCOUNTS. The list of customers attached hereto as
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Exhibit 3.16(a) represents the customers with which Seller now does business,
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principally in the area of mortgage credit reporting. The customers with
which Seller maintains a contract or agreement are identified on Exhibit
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3.16(b) hereto. Except as described on Exhibit 3.16(c), all such contracts or
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agreements are valid and enforceable contracts or agreements and are not
currently, and will not be at Closing, in default, invalid or unenforceable in
any manner, nor will termination have been threatened or imminent to the
actual knowledge of Seller. Up to the date of the Closing, Seller has
performed all of its material obligations and material responsibilities as
described under each such contract or agreement, none of such contracts or
agreements are subject to any asserted counterclaim or set-off actually
received by Seller and such contracts are in full force and effect and will
continue in full force and effect through the Closing (assuming continuing
performance by Purchaser following the Closing, which is not warranted or
represented by Seller). Except as described on Exhibit 3.16(d), Seller has no
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reason to believe that amounts payable under such contracts or agreements,
assuming due performance by Purchaser in the future (which is not warranted or
represented by Seller), will not be paid in accordance with the terms of such
contracts or agreements. Seller has not received any notices of default,
claims, or any other type of notice with respect to each such contract or
agreement or, if such notice has been received, a copy of any such notice has
been provided in writing to Purchaser.
3.17 LICENSE AGREEMENTS3.17 LICENSE AGREEMENTS. Attached as
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Exhibit 3.17 is a complete and accurate list of any material license
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agreements to which Seller is a party as of the date hereof. Also stated on
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Exhibit 3.17 is the expiration date of each such license agreement. Except as
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described on Exhibit 3.17, all such license agreements are valid and
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enforceable contracts or agreements and are not currently, and will not be at
Closing, in material default, invalid or unenforceable in any manner. To the
extent the transfer of any license agreement hereunder requires the consent of
any third party, Seller and Shareholders shall use their best efforts to
obtain such consents. Seller has not received any written notices of default,
claims or any other type of written notice with respect to any license
agreement or, if such written notice has been received, a copy of such notice
has been provided in writing to Purchaser.
3.18 INTELLECTUAL PROPERTY3.18 INTELLECTUAL PROPERTY. Attached as
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Exhibit 3.18 to this Agreement is a schedule of all trade names, trademarks,
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service marks, copyrights, computer software, source code and their
registrations, owned by Seller or in which Seller has any right, license, or
for which Seller has made application, together with a brief description of
each (hereinafter collectively the "Intellectual Property"). To the best of
Seller's knowledge, Seller has not infringed, and by its use of its
Intellectual Property, is not now infringing on any United States or
Washington trade name, trademark, service xxxx or copyright belonging to any
other person, firm or corporation and, to the best of Seller's knowledge, the
use of the Intellectual Property by Purchaser will not conflict with, infringe
on or otherwise violate the rights of others.
3.19 CUSTOMERS3.19 CUSTOMERS. Exhibit 3.19 to this Agreement sets
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forth a correct and current list of all material customers of Seller together
with summaries of the revenues from each material customer during the most
recent 12 months ending 30 days prior to the date hereof.
3.20 CONTRACTS3.20 CONTRACTS. Except as set forth in Exhibit 3.20,
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Seller is not a party to, nor is the property of Seller bound by, any
contract, distributorship agreement, license agreement, agency agreement or
output or requirements agreement, or any other agreement, indenture, mortgage,
deed of trust, lease, security agreement, loan agreement or instrument
which Purchaser would succeed to by its purchase of the Assets, nor will the
purchase of the Assets by Purchaser create any default by Seller as to any of
such agreements which will materially adversely affect the Purchaser's use of
the Assets.
3.21 FINANCIAL STATEMENTS3.21 FINANCIAL STATEMENTS. Seller has
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delivered to Purchaser copies of Seller's balance sheet as of the end of the
most recent fiscal year and the statements of income and retained earnings for
the years ended for the two most recent fiscal years and, to the extent
available, the interim period ending within 60 days prior to the date hereof
(collectively, the "Financial Statements"). The Financial Statements are
based upon the information contained in the books and records of Seller and
fairly and accurately present the financial condition of Seller as of the
dates thereof and results of operations for the periods referred to therein.
The monthly financial statements generated by Seller from and after the
interim period delivered to Purchaser will be prepared on a basis consistent
with the methods and procedures used to prepare the Financial Statements. If
requested by Purchaser, Seller will deliver such monthly financial statements
from and after the interim period to Purchaser within 60 days of the end of
each month from the date hereof to Closing.
3.22 ABSENCE OF UNDISCLOSED OR CONTINGENT LIABILITIES3.22 ABSENCE OF
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UNDISCLOSED OR CONTINGENT LIABILITIES. Seller has no liabilities (whether
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accrued, absolute, contingent, unliquidated or otherwise, whether due or to
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become due, whether known or unknown, and regardless of when asserted) except
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as otherwise set forth in the Financial Statements, the monthly financial
statements and Exhibit 3.22 hereto.
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3.23 NO MATERIAL ADVERSE CHANGES3.23 NO MATERIAL ADVERSE CHANGES.
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Since the date of the most recent Financial Statements, there has been no
change materially adverse to Seller in its Assets, financial condition, gross
profit, operating results, customer, employee or supplier relations, business
condition or prospects, except as otherwise disclosed on Exhibit 3.23 hereto.
------------
3.24 ABSENCE OF DEVELOPMENTS3.24 ABSENCE OF DEVELOPMENTS. Since the
--------------------------- -----------------------
date of the Term Sheet by and between Seller and Purchaser, Seller has and
will until Closing:
(a) Conducted its business and operations only in the regular and
ordinary course; maintained reasonable business insurance; committed no waste
of the Assets; disposed or otherwise changed the nature of any Asset such that
cash or accounts receivable are increased (other than in the ordinary course
of business), nor created or suffered to exist any material lien, charge or
encumbrance on any Asset or incurred any indebtedness for borrowed money
(other than in the ordinary course) which is secured by one or more of the
Assets; and has used its best efforts to maintain and preserve its business
organization intact and maintain its relationships with suppliers, employees,
customers and others;
(b) Refrained from making capital expenditures or commitments for
additions to the property, plant or equipment or entered into transactions
which could materially alter or affect operations, except as otherwise have
been approved in writing by Purchaser;
(c) Except from the assets to be retained by Seller, refrained from paying
the officers or directors or their affiliates, whether in the capacities of
shareholders, directors, officers or employees, any dividends or any bonuses
or any other forms of compensation except for non-bonus compensation in
accordance with current practice; and
(d) Maintained title to, and refrained from making or permitting, any
transfer, sale, pledge, encumbrance on, lien or other disposition of the
Assets of Seller except in the ordinary course of business.
3.25 TITLE TO PROPERTIES3.25 TITLE TO PROPERTIES. Seller does
----------------------- -------------------
not own any real property. The lease to which Seller is a party, a true and
complete copy of which is attached hereto as Exhibit 3.25, is in full force
------------
and effect, and Seller holds a valid and existing leasehold interest in such
lease for the term set forth in such lease. Prior to Closing, Seller shall
utilize its best efforts to obtain an assignment of the property lease if
requested to do so by Purchaser. Prior to Closing, Seller shall have
delivered complete and accurate copies of such lease to Purchaser, and such
lease shall not have been modified in any material respect except to the
extent that such modifications are disclosed in writing delivered to
Purchaser. Seller is not in default, and no circumstances exist which, if
unremedied would, either with or without notice or the passage of time or
both, result in a default under such lease, nor is Seller in default under the
lease. The fixed assets necessary for the conduct of Seller's businesses are
in good condition and repair, ordinary wear and tear excepted, and are usable
in the ordinary course of business. There are no defects in such fixed assets
or other conditions relating thereto which, in the aggregate, materially
adversely affect the operation or value of such fixed assets. Seller owns, or
leases under valid leases, all equipment and other tangible assets necessary
for the conduct of its business.
3.26 TAX MATTERS3.26 TAX MATTERS.
---------------- ------------
(a) The Seller has filed all Tax Returns that it was required to file
that relate to the Assets or the business of Seller prior to Closing. All
such Tax Returns were correct and complete in all respects. All Taxes owed by
the Seller (whether or not shown on any Tax Return) have been paid. The
Seller is not currently the beneficiary of any extension of time within which
to file any Tax Return. No claim has ever been made by an authority in a
jurisdiction where the Seller does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There are no encumbrances on any of
the Assets of the Seller that arose in connection with any failure (or alleged
failure) to pay any Taxes.
(b) The Seller has withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any employee,
independent contractor, creditor, shareholder or other third party up to the
date of Closing.
(c) There is no basis for any authority to assess any additional
Taxes for any period for which Tax Returns have been filed. There is no
dispute or claim concerning any liability for Taxes of the Seller (i) claimed
or raised by any authority in writing or orally with any directors, officers
or employees of the Seller, or (ii) as to which any such person has knowledge
based upon personal contact with any agent of such authority. Exhibit 3.26
------------
lists all federal, state, local and foreign Tax Returns filed with respect to
the Seller for taxable periods ended on or after December 31, 1995, indicates
those Tax Returns that have been audited and indicates those Tax Returns that
currently are the subject of audit. Prior to the Closing, the Seller has
delivered to the Purchaser correct and complete copies of all federal Tax
Returns, examination reports, and statements of deficiencies filed, assessed
against or agreed to by the Seller since December 31, 1995.
3.27 TAX NOTICES3.27 TAX NOTICES. Except as set forth on Exhibit
--------------- ----------- -------
3.27 hereto, no deficiency for any Taxes has been proposed, asserted or
----
assessed against Seller that has not been resolved and paid in full. No
----
waiver, extension or comparable consent given by Seller regarding the
----
application of the statute of limitations with respect to any Taxes
----
outstanding, nor is any request for any such waiver or consent pending.
----
Except as described in Exhibit 3.27 hereto, there has been no tax audit or
----
other administrative proceeding or court proceeding with respect to any Taxes,
---
nor is any such Tax audit or other proceeding pending, nor has there been any
notice to Seller by any taxing authority regarding any such Tax, audit or
other proceeding or, to the best knowledge of Seller, is any such Tax audit or
other proceeding threatened with regard to any Taxes. Seller does not expect
the assessment of any additional Taxes and is not aware of any unresolved
questions, claims or disputes concerning the liability for Taxes which would
exceed the estimated reserves established on its books and records. For the
purposes hereof, the term "Taxes" means all taxes, charges, fees, levies or
other assessments, including without limitation, all net income, gross income,
gross receipts, sales, use, ad valorem, transfer, franchise, profits, license,
withholding, payroll, employment, workmen's compensation, social security,
unemployment, excise, estimated, severance, stamp, occupation, property or
other taxes, customs, duties, fees, assessments or charges of any kind
whatsoever including, without limitation, all interest and penalties thereon,
and additions to tax or additional amounts imposed by any taxing authority,
domestic or foreign, upon Seller. Notwithstanding any other language to the
contrary set forth herein, the Seller shall not be required by the provisions
hereof to file tax returns after the date of Closing which relate to the
Assets, nor shall any language herein obligate the Seller to file any income
tax returns not otherwise required by law.
3.28 EMPLOYEES3.28 EMPLOYEES. Except as described on Exhibit 3.28,
------------- --------- ------------
(a) Seller has no actual or constructive notice that any executive employee of
Seller or any group of Seller's employees has any plan or intention to
terminate his, her or its employment following the Closing; (b) Seller has
complied with all laws relating to the employment of labor, including
provisions thereof relating to wages, hours, equal opportunity, collective
bargaining and the payment of social security and other taxes; (c) to the best
of Seller's knowledge, Seller has no material labor relations problem pending
and its labor relations are satisfactory; (d) there are no workmen's
compensation, sexual harassment, discrimination or claims pending against
Seller nor is Seller aware of any facts that would give rise to such claims;
(e) to the best of Seller's knowledge, no employee of Seller is subject to any
secrecy or non-competition agreement or any other agreement or restriction of
any kind that would impede in any way the ability of such employee to carry
out fully all activities of such employee in furtherance of the business of
Seller; and (f) to the best of Seller's knowledge, no employee or former
employee of Seller has any claim with respect to any intellectual property
rights of Seller.
3.29 EMPLOYEE BENEFIT PLANS3.29 EMPLOYEE BENEFIT PLANS.
---------------------------- ------------------------
(a) Except as provided in writing to Purchaser and as listed on
Exhibit 3.29, with respect to all employees and former employees of Seller and
-------
all dependents and beneficiaries of such employees and former employees, (i)
Seller does not maintain or contribute to any non-qualified deferred
compensation or retirement plans, contracts or arrangements, (ii) Seller does
not maintain or contribute to any qualified defined contribution plans as
defined in Section 3(34) of ERISA or Section 414(i) of the Code, (iii) Seller
does not maintain or contribute to any qualified defined benefit plans as
defined in Section 3(35) of ERISA or Section 414(j) of the Code, and (iv)
Seller does not maintain or contribute to any employee welfare benefit plans
as defined in Section 3(1) of ERISA.
(b) To the best of Seller's knowledge, to the extent required (either as a
matter of law or to obtain the intended tax treatment and tax benefits), all
employee benefit plans as defined in Section 3(3) of ERISA which Seller does
maintain or to which it does contribute (collectively, the "Plans") comply in
all material respects with the requirements of ERISA and the Code. With
respect to the Plans, (i) all required contributions which are due have been
made and a proper accrual has been made for all contributions due in the
current fiscal year, (ii) there are no actions, suits or claims pending, other
than routine uncontested claims for benefits, and (iii) there have been no
prohibited transactions as defined in Section 406 of ERISA or Section 4975 of
the Code.
(c) Seller does not contribute (and has not ever contributed) to any
multi-employer plan, as defined in Section 3(37) of ERISA. Seller has no
actual or potential liabilities under Section 4201 of ERISA for any complete
or partial withdrawal from a multi-employer plan. Seller has no actual or
potential liability for death or medical benefits after separation from
employment, other than (i) death benefits under the employee benefit plans or
programs (whether or not subject to ERISA) that will be set forth in writing
to Purchaser, and (ii) health care continuation benefits described in Section
4980B of the Code.
3.30 GIFTS3.30 GIFTS. Neither Seller nor any of its officers,
--------- -----
directors or shareholders has made or agreed to make gifts of money, other
property or similar benefits (other than incidental gifts of articles of
nominal value) to any actual or potential customer, supplier, governmental
employee, political party, candidate for office, governmental agency or
instrumentality or any other person in a position to assist or hinder Seller
in connection with any actual or proposed business transaction.
3.31 EMPLOYEE HEALTH AND SAFETY3.31 EMPLOYEE HEALTH AND SAFETY.
------------------------------ --------------------------
Seller has not violated and has no liability, and has not received a notice or
charge asserting any violation of or liability under, OSHA or any other
federal or state acts (including rules and regulations thereunder) and, to the
best of Seller's knowledge, regulating or otherwise affecting employee health
and safety.
3.32 REPRESENTATIONS AS TO KNOWLEDGE3.32 REPRESENTATIONS AS TO
-------------------------------------- ---------------------
KNOWLEDGE. The representations and warranties contained in Article III hereof
--
shall in each and every event whereby an exercise of discretion or a
statement to the "best knowledge", "best of knowledge" or "knowledge" is
required on behalf of any party to this Agreement be deemed to require that
such exercise of discretion or statement be in good faith, with due diligence,
to the best efforts of each such party and be exercised always in a reasonable
manner and within reasonable times.
3.33 REPRESENTATIONS CONCERNING SOLVENCY3.33 REPRESENTATIONS
--------------------------------------- ---------------
CONCERNING SOLVENCY. The Seller has not incurred, and does not intend to
----------------
incur, and has no reasonable basis to believe that it will incur, any debts
beyond its ability to pay such debts as they become due. Seller has, and will
continue to have, assets greater than Seller's debts, based upon a fair
valuation and has paid, and will pay, its debts as they become due. Purchaser
may rely on such representations in asserting that Purchaser has no reasonable
cause to believe that Seller is or will become insolvent as a result of the
transactions contemplated hereby. Seller has undertaken the transactions
described herein in good faith, considering its obligations to any person or
entity to whom Seller owes a right to payment, whether or not the right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured and
has undertaken the transaction described herein without any intent to hinder,
delay or defraud its creditors. Seller will not, and has not, concealed this
transaction or the proceeds of such transaction from any of its creditors.
Seller has not removed or concealed any assets from its creditors and will not
incur debt in connection with the assets or business that is significantly
greater than the normal and customary debts of Seller in the ordinary course.
Seller does not contemplate and has no reason to contemplate it will seek
protection under the bankruptcy laws and believes in good faith that it will
receive consideration reasonably equivalent to the value of the Assets being
purchased by the Purchaser.
ARTICLE VIVI
PRE-CLOSING COVENANTS OF SELLERCOVENANTS OF SELLER
Seller hereby covenants and agrees that, between the date hereof and the
Closing, it will comply with the provisions of this Article IV, except to the
extent Purchaser may otherwise consent in writing.
4.1 INSPECTION OF PROPERTIES AND BOOKS4.1 INSPECTION OF
----------------------------------------- -------------
PROPERTIES AND BOOKS. Seller shall assist any individual or individuals
-------------
designated by Purchaser with reasonable prior notice to visit or inspect any
property of Seller, at reasonable times acceptable to both parties, including
books of accounts and records of Seller, to make extracts or copies of such
books and records and to discuss the affairs, finances and accounts of Seller
with its officers, and shall use its best efforts to obtain access for
Purchaser to Seller's accountants' work papers. As a condition to the
Closing, the parties acknowledge and agree that Seller shall furnish to
Purchaser Evaluation Material which shall be used in connection with a due
diligence review. The parties agree that Purchaser shall treat the Evaluation
Material confidentially, and shall not disclose to any party, except as
otherwise set forth herein, the Evaluation Material or any information set
forth therein; provided, however, that Purchaser is authorized to disclose the
Evaluation Material to its investment banker, counsel and accountants for
their review. Purchaser shall instruct its officers, directors, employees,
agents or representa-tives of the confidential nature of the Evaluation
Material and shall be responsible for ensuring that the Evaluation Material is
kept confidential by such persons. In the event the Closing is not
consummated, all Evaluation Material shall be returned to Seller, within ten
days of a request therefor, with the understanding that Purchaser shall retain
no copies of the Evaluation Material and shall not disclose to any other party
the Evaluation Material or information contained therein, with the exception
of (i) information which becomes generally available to the public other than
as a result of disclosure by Purchaser, or (ii) information included in the
Evaluation Material which is first disclosed by a third party not bound by a
confidentiality agreement with Seller and (iii) information required to be
disclosed in any registration statement or periodic report under the
disclosure requirements of applicable federal and state securities laws.
4.2 OTHER CONTRACTS4.2 OTHER CONTRACTS. Except in the ordinary course
------------------ ---------------
of business, Seller shall not enter into or become subject, and shall not
cause Seller to enter into or become subject, to any agreement, transaction,
or commitment which would restrict or in any way impair the obligation or
ability of Seller to comply with all of the terms of this Agreement.
4.3 ONGOING OPERATION4.3 ONGOING OPERATION. Seller shall carry on its
-------------------- -----------------
business diligently and substantially in the same manner as heretofore
conducted. The business of Seller shall be conducted only in the ordinary
course and neither the shareholders of Seller nor Seller shall take any action
except in the ordinary course of Seller's business, on an arm-length basis and
in accordance in all material respects with all applicable laws, rules and
regulations and Seller's past custom and industry practice.
4.4 INDEBTEDNESS4.4 INDEBTEDNESS. Seller will not create, incur,
--------------- ------------
assume, guarantee or otherwise become liable with respect to any indebtedness
related or connected with, or secured by, the Assets, except in the ordinary
course of its business and subject to prior written notice to Purchaser.
Except in the ordinary course of its business, and subject to prior written
notice to Purchaser, Seller will not sell, pledge, encumber or otherwise
subject the Assets to any claim or indebtedness.
4.5 RECORDS4.5 RECORDS. Seller shall maintain its books, accounts and
---------- -------
records in the usual, regular and ordinary manner.
4.6 ARTICLES OF INCORPORATION; BYLAWS4.6 ARTICLES OF INCORPORATION;
------------------------------------ --------------------------
BYLAWS. Seller will not amend its Articles of Incorporation or Bylaws or
----
otherwise alter its corporate existence or powers.
--
4.7 DISTRIBUTIONS OR DIVIDENDS4.7 DISTRIBUTIONS OR DIVIDENDS.
----------------------------- --------------------------
Seller will not declare or pay any dividend, make any distribution on shares
of its capital stock or repurchase any shares of its capital stock.
4.8 NOTICE OF BREACH4.8 NOTICE OF BREACH. In the event of and
--------------------- ----------------
promptly after becoming aware of the occurrence or threatened occurrence of
any event which would cause or constitute a breach of any warranty,
representation, covenant or agreement of Seller contained herein, Seller shall
give notice in writing of such event or threatened event to Purchaser and
use all reasonable efforts to prevent or promptly remedy such breach or
threatened breach.
4.9 NONDISCLOSURE4.9 NONDISCLOSURE. The parties agree that any
---------------- -------------
publicity release, security filing, memorandum or any other communication
(collectively "Communication"), whether written or oral, identifying this
proposed transaction shall not identify Seller at any time prior to Closing
unless required by applicable securities laws or regulations. Seller shall
timely review and approve any public communication prepared by Purchaser
before its dissemination and release.
4.10 EMPLOYMENT MATTERS4.10 EMPLOYMENT MATTERS. Seller shall not,
---------------------- ------------------
directly or indirectly, except in the ordinary course of business and with
prior notice to Purchaser, (i) enter into or modify any employment, severance
or similar agreements or arrangements with, or grant any bonuses, salary
increases, severance or termination paid to, any officers or directors or
consultants, or (ii) take any action with respect to the grant of any bonuses,
salary increases, severance or termination pay or with respect to any
increase of benefits payable in effect on the date hereof. Seller shall not
adopt or amend any bonus, profit sharing, compensation, stock option, pension,
retirement, deferred compensation, employment or other employee benefit plan,
trust, fund or group arrangement for the benefit or welfare of any employees
or any bonus, profit sharing, compensation, stock option, pension, retirement,
deferred compensation, employment or other employee benefit plan, agreement,
trust, fund or arrangement for the benefit or welfare of any director.
4.11 INSURANCE4.11 INSURANCE. Without providing Purchaser 30
------------- ---------
days' prior written notice, Seller shall not cancel or terminate its current
insurance policies or cause any of the coverage thereunder to lapse, unless
simultaneously with such termination, cancellation or lapse, replacement
policies providing coverage equal to or greater than the coverage under the
cancelled, terminated or lapsed policies for substantially similar premiums
are in full force and effect. To the extent Seller has paid premiums for
insurance coverage that will continue in effect on a post-Closing basis, the
Purchaser will reimburse Seller within 15 days of Closing the prorated portion
of post-Closing insurance coverage based upon the time period covered by such
insurance both prior to, and subsequent to, Closing. Seller shall purchase
tail coverage covering Seller and its officers and directors for any error and
omission policy maintained by Seller prior to Closing.
4.12 PRESERVATION OF BUSINESS4.12 PRESERVATION OF BUSINESS.
----------------------------- ------------------------
Seller and the Shareholders shall (i) use their best efforts to preserve
intact Seller's business organization and goodwill, keep available the
services of Seller's officers and employees as a group and maintain
satisfactory relationships with suppliers, distributors, customers and others
having business relationships with Seller, (ii) confer on a regular and weekly
basis with representatives of Purchaser to report operational matters and the
general status of ongoing operations, (iii) not intentionally take any action
which would render, or which reasonably may be expected to render, any
representation or warranty made by Seller in the Agreement materially untrue
at the Closing, (iv) notify Purchaser of any emergency or other change in the
normal course of Seller's business or in the operation of Seller's properties
and of any governmental or third party complaints, investigations or hearings
(or communications indicating that the same may be contemplated) if such
emergency, change, complaint, investigation or hearing would be material,
individually or in the aggregate, to the business, operations or financial
condition of Seller or the ability of Seller to consummate the transactions
contemplated by this Agreement, and (v) promptly notify Purchaser in writing
if Seller or its representatives shall discover that any representation or
warranty made by Seller in this Agreement was when made, or has subsequently
become, untrue in any material respect.
4.13 REGULATORY FILINGS4.13 REGULATORY FILINGS. Seller is not
----------------------- ------------------
required, and shall not be required prior to or following Closing, to make any
filings or submissions under any laws or regulations applicable to Seller
for the consummation of the transactions contemplated herein. Purchaser has
advised Seller that the execution of this Agreement and closing of the
transaction contemplated hereby may require the Purchaser to provide certain
disclosure concerning the business and the financial statements of Seller to
the United States Securities and Exchange Commission. Seller hereby consents
to the inclusion of disclosure concerning Seller, the financial statements of
Seller and the representations and warranties made by Seller in the course of
this transaction, in a periodic report or any amendment thereto, in order to
allow Purchaser to discharge its disclosure obligations under the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder.
4.14 NO NEGOTIATIONS4.14 NO NEGOTIATIONS. None of Seller, its
-------------------- ---------------
officers, directors or the Shareholders shall cause Seller to, directly or
indirectly, through any officer, director, agent or otherwise, solicit,
initiate or encourage submission of any proposal or offer from any person or
entity (including any of its or their officers or employees) relating to any
liquidation, dissolution, recapitalization, merger, consolidation or
acquisition or the purchase of all or a material portion of the assets of, or
any equity interest in, Seller, or any similar transaction or business
combination involving Seller, or participate in any negotiations regarding, or
furnish to any other person, any information with respect to, or
otherwise cooperate in any way with, or assist or participate in, facilitate
or encourage, any effort or attempt by any other person or entity to do or
seek any of the foregoing. Seller shall within five business days notify
Purchaser of any such proposal or offer, or any inquiry from or contact with
any person with respect thereto, and shall promptly provide Purchaser with
such information regarding such proposal, offer, inquiry or contact as
Purchaser may request.
4.15 ASSIGNMENT OF CONTRACTS, LEASES AND OTHER AGREEMENTS4.15
-----------------------------------------------------------
ASSIGNMENT OF CONTRACTS, LEASES AND OTHER AGREEMENTS. Seller agrees that,
-----------------------------------------------------
prior to the Closing, it will secure the approval of all parties with which
Seller has customer, supplier or other agreements as to which consent is
expressly required and assignment is contemplated to Purchaser and, should
Purchaser desire to assume any other contract, lease, agreement or right,
Seller shall use its best efforts to secure the approval of the remaining
party to the contract, lease, agreement or right such that Purchaser may
succeed to rights and obligations of Seller under such contracts, leases,
agreements or rights.
4.16 BEST EFFORTS4.16 BEST EFFORTS. Seller agrees to use its best
---------------- ------------
efforts in good faith to satisfy the various conditions to Closing and to
consummate the transactions provided for herein as expeditiously as possible.
Seller will not take or knowingly permit to be taken any action that
would be in breach of the terms or provisions of this Agreement or that would
cause any of its representations and warranties contained herein to be or
become untrue.
4.17 ADDITIONAL DISCLOSURE4.17 ADDITIONAL DISCLOSURE. From the date
------------------------- ---------------------
of this Agreement to and including the Closing Date, Seller promptly upon the
occurrence thereof, will advise Purchaser of each event subsequent to the date
hereof which would have had to be disclosed on any exhibit to this
Agreement had it occurred prior to the date hereof.
ARTICLE VIIVII
POST-CLOSING COVENANTSCOVENANTS
The parties agree as follows with respect to the period following the
Closing.
5.1 FURTHER ASSURANCES5.1 FURTHER ASSURANCES. In case at any time
--------------------- ------------------
after the Closing any further action is necessary or desirable to carry out
the purposes of this Agreement, each of the parties will take such further
action (including the execution and delivery of such further instruments and
documents) as any other party reasonably may request, all at the sole cost and
expense of the requesting party (unless the requesting party is entitled
to indemnification therefor under Article X).
5.2 LITIGATION SUPPORT5.2 LITIGATION SUPPORT. In the event and
--------------------- ------------------
for so long as any party actively is contesting or defending against any
action, suit, proceedings, hearing, investigation, charge, complaint, claim or
demand in connection with (a) any transaction contemplated by this Agreement,
or (b) any fact, situation, circumstance, status, condition, activity,
practice, plan, occurrence, event, incident, action, failure to act or
transaction on or prior to the Closing Date involving the Seller, each of the
other parties will cooperate with each other and counsel in the contest or
defense, make available their personnel, and provide such testimony and access
to their books and records as shall be necessary in connection with the
contest or defense, all at the sole cost and expense of the contesting or
defending party (unless the contesting or defending party is entitled to
indemnification therefor under Article X).
ARTICLE VIIIVIII
REPRESENTATIONS AND WARRANTIES OF PURCHASERAND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that the statements contained
in this Article VI are true, correct and complete as of the date of this
Agreement and will, except as otherwise expressly provided in this Agreement
be true, correct and complete on the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement) as
follows:
6.1 ORGANIZATION AND QUALIFICATION OF PURCHASER6.1 ORGANIZATION AND
---------------------------------------------- ----------------
QUALIFICATION OF PURCHASER. Purchaser is a corporation duly organized,
--------------------------
validly existing and in good standing under the laws of the State of Colorado
----
and has the full corporate power and authority to own and operate its
properties and to carry on its business.
6.2 AUTHORIZATION6.2 AUTHORIZATION. This Agreement has been duly and
---------------- -------------
validly executed by Purchaser and the agreements, representations, and
warranties contained herein constitute valid and binding obligations,
representations, and warranties of Purchaser enforceable in accordance with
their terms.
6.3 NO CONFLICTING AGREEMENTS6.3 NO CONFLICTING AGREEMENTS. The
---------------------------- -------------------------
execution and delivery of this Agreement by Purchaser does not, and
consummation by Purchaser of the transactions contemplated hereby will not,
(a) violate any existing term or provision of any law, regulation, order,
writ, judgment, injunction or decree applicable to Purchaser, (b) conflict
with or result in a breach of any of the terms, conditions or provisions of
the Articles of Incorporation or Bylaws of Purchaser or of any agreement or
instrument to which Purchaser is a party, or (c) result in the creation or
imposition of any lien, charge, security interest, encumbrance, restriction or
claim upon Purchaser or any of its assets.
6.4 COMPLIANCE WITH APPLICABLE LAW6.4 COMPLIANCE WITH APPLICABLE LAW.
--------------------------------- ------------------------------
Purchaser has not received any notice or information of any violation,
probable violation or default by Purchaser under any applicable law,
regulation or order of any governmental department, commission, board or
agency or instrumentality, domestic or foreign, having jurisdiction over
Purchaser's operations which could materially adversely affect the business,
operations, financial condition, properties or assets of Purchaser or the
ability to consummate the transaction contemplated hereby.
6.5 LITIGATION6.5 LITIGATION. There are no actions, proceedings or
------------- ----------
investigations pending, or to the knowledge of Purchaser, threatened against
Purchaser or its officers or directors, before any court or administrative
agency or administrative officer.
6.6 MATERIAL MISSTATEMENTS OR OMISSIONS6.6 MATERIAL MISSTATEMENTS OR
-------------------------------------- -------------------------
OMISSIONS. Neither this Agreement nor any other document, certificate or
--------
statement furnished to Seller by or on behalf of Purchaser in connection with
---
this Agreement contains any untrue statement of a material fact, or omits any
material fact necessary to make the statements contained herein and therein
not misleading in light of the context in which they were made.
6.7 CONSENTS AND APPROVALS6.7 CONSENTS AND APPROVALS. The
--------------------------- ----------------------
execution and delivery by Purchaser of this Agreement, and the performance by
Purchaser of Purchaser's obligations hereunder, do not require Purchaser to
obtain any consent, approval or action of, or make any filing with or give any
notice to, any corporation, person or firm or any public, governmental or
judicial authority except (i) such as have been duly obtained or made, as the
case may be, and are in full force and effect on the date hereof and will
continue to be in full force and effect on the Closing Date, and (ii) those
which the failure to obtain would have no material adverse effect on the
transactions contemplated hereby.
6.8 BROKERS6.8 BROKERS. All negotiations relative to this Agreement
---------- -------
and the transactions contemplated hereby have been carried out by
representatives of Purchaser directly with Seller, without the intervention of
any person on behalf of Purchaser in such manner as to give rise to any
valid claim by any person against Seller for a finder's fee, brokerage
commission or similar payment. All rights of indemnity under Article X hereof
shall apply to any claim relating to a Loss (hereinafter defined) arising out
of this Agreement for any fee, commission or similar payment.
6.9 REPRESENTATIONS AS TO KNOWLEDGE6.9 REPRESENTATIONS AS TO
------------------------------------- ---------------------
KNOWLEDGE. The representations and warranties contained in Article VI hereof
-
shall in each and every event whereby and exercise of discretion or a
statement to the "best knowledge", "best of knowledge" or "knowledge" is
required on behalf of any party to this Agreement be deemed to require that
such exercise of discretion or statement be in good faith, with due diligence,
to the best efforts of each such party and be exercised always in a
reasonable manner and within reasonable times.
ARTICLE IXIX
COVENANTS OF PURCHASEROF PURCHASER
Purchaser covenants and agrees as follows:
7.1 OTHER CONTRACTS OTHER CONTRACTS. From and after the date of this
--------------- ---------------
Agreement, Purchaser will not enter into or become subject to any agreement or
commitment which would restrict or in any way impair the obligation of
Purchaser to comply with all of the terms of this Agreement.
7.2 ADDITIONAL DISCLOSURE7.2 ADDITIONAL DISCLOSURE. From the date of
------------------------ ---------------------
this Agreement to and including the Closing, Purchaser will, promptly upon the
occurrence thereof, advise Seller of each event subsequent to the date
hereof which would have had to be disclosed by Purchaser on any exhibit to
this Agreement had it occurred prior to the date hereof.
7.3 NOTICE OF BREACH7.3 NOTICE OF BREACH. In the event of and
------------------- ----------------
promptly after becoming aware of the occurrence or threatened occurrence of
any event which would cause or constitute a breach of any warranty,
representation, covenant or agreement of Purchaser contained herein, Purchaser
shall give notice in writing of such event or threatened event to Seller and
use all reasonable efforts to prevent or promptly remedy such breach or
threatened breach.
7.4 NONDISCLOSURE7.4 NONDISCLOSURE. The Purchaser agrees that any
---------------- -------------
publicity release, security filing, or any other communication (collectively
"Communications"), whether written or oral, identifying this proposed
transaction shall not identify Seller any time prior to Closing unless
required by applicable securities laws or regulations. Seller retains the
right to review any Communication prior to its distribution or publication.
7.5 BEST EFFORTS7.5 BEST EFFORTS. Purchaser agrees to use its best
--------------- ------------
efforts in good faith to satisfy the various conditions to Closing and to
consummate the transactions provided for herein as expeditiously as possible.
Purchaser will not take or knowingly permit to be taken any action that
would be contrary to or in breach of the terms or provisions of this Agreement
or that would cause any of the representations and warranties of Purchaser
contained herein to be or become untrue.
7.6 REGULATORY FILINGS7.6 REGULATORY FILINGS. Purchaser has
--------------------- ------------------
advised Seller that the transaction contemplated hereby will require Purchaser
to file disclosure, in the form of a periodic report or amendments thereto,
with the United States Securities and Exchange Commission, which report may
include disclosure concerning, and the financial statements of, Seller.
Seller hereby consents to the inclusion of disclosure concerning Seller, the
financial statements of Seller and the representations and warranties made by
Seller in the course of this transaction, in such periodic report or
amendment, in order to allow Purchaser to discharge its disclosure obligations
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder. Purchaser agrees to provide Seller upon request a copy
of such periodic report or any amendment thereto at least three business days
prior to filing. Purchaser will make all required filings with the Securities
and Exchange Commission that relate to this transaction.
7.7 EMPLOYMENT AGREEMENTS7.7 EMPLOYMENT AGREEMENTS. Prior to Closing,
------------------------ ---------------------
the termination of the Seller's existing employment agreements, if any,
shall have been negotiated on terms satisfactory to Purchaser and Seller. In
addition, an employment agreement shall have been entered into between
Purchaser and Xxxxx X. xx Xxx for a term of not less than three years,
substantially in the form of Exhibit 7.7 hereto.
------------
7.8 NON-COMPETE AND CONFIDENTIALITY AGREEMENTS7.8 NON-COMPETE AND
--------------------------------------------- ---------------
CONFIDENTIALITY AGREEMENTS. At or prior to Closing, all key employees of
-----------------------
Seller listed on Exhibit 7.8 shall enter into non-compete and confidentiality
-----------
agreements with Purchaser substantially in the form of Exhibit 7.8 hereto.
-----------
ARTICLE XX
CONDITIONS PRECEDENT TO CLOSINGPRECEDENT TO CLOSING
8.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER8.1 CONDITIONS
------------------------------------------------ ----------
PRECEDENT TO OBLIGATIONS OF SELLER. The obligations of Seller to consummate
-----------------------------------
and effect this Agreement are subject to the satisfaction in all material
respects, on or before the Closing Date, of the following conditions (unless
waived by Seller in writing in the manner provided in Paragraph 8.1(d)
hereof):
(a) Representations and Warranties of Purchaser; Performance by
------------------------------------------------------------
Purchaser. (i) The representations and warranties of Purchaser set forth in
----
Article VI hereof shall (except where stated to be as of an earlier date) be
accurate in all material respects on and as of the Closing as though made on
and as of the Closing, except for any changes resulting from activities or
transactions which may have taken place after the date hereof which are
expressly permitted by this Agreement or which have been entered into in the
ordinary course of business and are not expressly prohibited by this
Agreement; (ii) Purchaser shall have performed all obligations and complied
with all covenants required to be performed or to be complied with by
Purchaser under this Agreement prior to or at the Closing Date including the
delivery of all documents required at the Closing; and (iii) Seller shall have
received a certificate dated the Closing and signed by the President of
Purchaser to the effect that the representations and warranties made by
Purchaser in this Agreement are true and accurate in all material respects as
of the Closing (or, where applicable, as of the earlier specified date), which
certificate shall be in the form of Exhibit 8.1(a).
---------------
(b) Action. All action necessary to authorize the execution,
------
delivery and performance of this Agreement by Purchaser and the consummation
of the transactions contemplated hereby shall have been duly and validly taken
by Purchaser. Purchaser shall have furnished Seller with copies of all
consents or resolutions adopted or executed by Purchaser in connection with
such actions, certified by the Secretary of Purchaser.
(c) No Action or Proceeding. As of the Closing, no action or proceeding
-----------------------
by any public authority or person shall be pending before any court or
administrative body or overtly threatened to restrain, enjoin or otherwise
prevent the consummation of this Agreement or the transactions contemplated
herein. There shall not be threatened, instituted or pending any action or
proceeding, before any court or governmental authority or agency, domestic or
foreign, (i) challenging or seeking to make illegal, or to delay or otherwise
directly or indirectly restrain or prohibit, the consummation of the
transactions contemplated hereby or seeking to obtain material damages in
connection with such transactions, (ii) seeking to prohibit direct or indirect
ownership or operation by Purchaser of all or a material portion of the
business or Assets of Seller, or to compel Seller or Purchaser to dispose of
or to hold separately all or a material portion of the business or assets of
Seller, as a result of the transactions contemplated hereby, (iii) seeking to
require direct or indirect transfer or sale by Purchaser of any of the Assets,
(iv) seeking to invalidate or render unenforceable any material provision of
this Agreement or any of the other agreements attached hereto as Exhibits, or
otherwise contemplated hereby, (v) seeking relief against Purchaser under any
federal or state law or regulation relating to bankruptcy, insolvency,
reorganization or moratorium or creditors' rights generally, (vi) otherwise
relating to and materially adversely affecting the transactions contemplated
hereby, or (vii) which could result in any material adverse change in the
business, operations, financial condition or properties of Purchaser.
(d) Waiver of Conditions Precedent. Seller may waive any or all of
------------------------------
the conditions precedent set forth in this Article VIII, either prospectively
or retroactively, by giving written notice of such waiver to Purchaser. No
waiver of any condition precedent pursuant to this paragraph 8.1(d) shall,
unless otherwise expressly stated in such written notice of waiver, extend to
any covenant or agreement contained herein or to any other condition
precedent.
(e) Discovery of Facts or Circumstances. Seller shall not have discovered
-----------------------------------
any fact or circumstance existing as of the date of this Agreement which has
not been disclosed to Seller as of the date of this Agreement regarding the
business, assets, liabilities, properties, condition (financial or otherwise),
results of operations or prospects of Purchaser which is, individually or in
the aggregate with other such facts and circumstances, materially adverse to
Purchaser.
(f) Opinion of Counsel. Seller shall have received from counsel to
--------------------
Purchaser, an opinion dated the Closing, to the following effect:
(i) Purchaser is a corporation duly organized, validly existing in a
good standing under the laws of the State of Colorado and authorized to do
business as a foreign corporation in the State of Washington.
(ii) Execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action, corporate and otherwise, by Purchaser, this Agreement is a
valid and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms except as enforcement can be limited by general
equitable principles or bankruptcy, insolvency or similar laws affecting
creditor's rights generally.
(iii) The execution and delivery of the Agreement will not violate or
conflict with the Articles of Incorporation or ByLaws of Purchaser or any
agreement known to such counsel to which Purchaser is a party or by which
Purchaser or its assets are bound.
(iv) No consent, approval, authorization or order of, and no notice
to or filing with, any governmental agency or body or any court is required to
be obtained or made by Purchaser pursuant to this Agreement except such as has
been obtained or made.
(v) Except as disclosed in this Agreement or the Exhibits hereto, such
counsel is not aware, after reasonable investigation, of any pending or
threatened action, suit, proceeding or investigation before any court or any
public, regulatory or governmental agency, authority or body, involving
Purchaser or any of its officers or directors, and such counsel does not know
of any legal matter or government proceedings regarding Purchaser.
(vi) Nothing has come to such counsel's attention in connection with such
counsel's representation of Purchaser that has caused such counsel to believe
that this Agreement or the Exhibits thereto contain an untrue statement of a
material fact or omits to state a material fact required to be stated therein,
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(g) Miscellaneous. No party shall have initiated action seeking
-------------
monetary damages or claims in connection with, or seeking to prohibit or
enjoin the transactions described in this Agreement.
8.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER8.2
--------------------------------------------------------
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER. The obligation of Purchaser
---------------------------------------
to consummate and effect this Agreement are subject to the satisfaction in all
material respects, on or before the Closing Date, of the following conditions
(unless waived by Purchaser in writing in the manner provided in paragraph
8.2(f) hereof):
(a) Representations and Warranties of Seller and Shareholders;
------------------------------------------------------------
Performance by Seller. (i) The representations and warranties of Seller and
-----------------
its Shareholders set forth in Article III hereof shall (except where stated to
be as of an earlier date) be accurate in all material respects on and as of
the Closing as though made on and as of the Closing, except for any changes
resulting from activities or transactions which may have taken place after the
date hereof which are expressly permitted by this Agreement or which have been
entered into in the ordinary course of business and are not expressly
prohibited by this Agreement; (ii) Seller shall have performed all obligations
and complied with all covenants required to be performed or to be complied
with by it under this Agreement prior to the Closing; (iii) Purchaser shall
have received a certificate dated as of the Closing and signed by the
President of Seller to the effect that the representations and warranties made
by Seller in this Agreement are true and accurate in all material respects as
of the Closing (or, where applicable, as of the earlier specified date) in the
form attached as Exhibit 8.1(a); and (iv) Purchaser shall have entered into an
--------------
employment agreement with Xxxxx X. xx Xxx and non-compete and confidentiality
agreements with all key employees in the form attached as Exhibits 7.7 and 7.8
------------ ---
respectively, which shall commence by its terms on Closing of the purchase of
the Assets.
(b) Action. All action necessary to authorize the execution, delivery and
------
performance of this Agreement by Seller and the consummation of the
transactions contemplated hereby shall have been duly and validly taken by
Seller. Seller shall have furnished Purchaser with copies of all consents or
resolutions adopted or executed by Seller in connection with such actions,
certified by the Secretary of Seller.
(c) No Action or Proceeding. As of the Closing, no action or
--------------------------
proceeding by any public authority or person shall be pending before any court
or administrative body or overtly threatened to restrain, enjoin or otherwise
prevent the consummation of this Agreement or the transactions contemplated
herein. Further, except as described on Exhibit 3.7(a), there shall not be
--------------
threatened, instituted or pending any action or proceeding, before any court
or governmental authority or agency, domestic or foreign, (i) challenging or
seeking to make illegal, or to delay or otherwise directly or indirectly
restrain or prohibit, the consummation of the transactions contemplated hereby
or seeking to obtain material damages in connection with such transactions,
(ii) seeking to prohibit direct or indirect ownership or operation by
Purchaser of all or a material portion of the business or assets of Seller, or
to compel Purchaser or Seller to dispose of or to hold separately all or a
material portion of the business or assets of Seller, as a result of the
transactions contemplated hereby, (iii) seeking to require direct or indirect
transfer or sale by Purchaser of any of the Assets, (iv) seeking to invalidate
or render unenforceable any material provision of this Agreement or any of the
other agreements attached hereto as Exhibits, or otherwise contemplated
hereby, (v) seeking relief against Seller under any federal or state law or
regulation relating to bankruptcy, insolvency, reorganization or moratorium or
creditors' rights generally, (vi) otherwise relating to and materially
adversely affecting the transactions contemplated hereby, or (vii) which could
result in any material adverse change in the business, operations, financial
condition or properties of Seller or the Assets.
(d) No Adverse Changes. There shall have been no event or change
--------------------
occurring between the execution of this Agreement and the Closing which in the
aggregate may be deemed to have a material adverse effect on the business,
operations, financial condition or properties of Seller or the Assets.
(e) Litigation. Except as described on Exhibit 3.12, there shall be no
---------- ------------
actions, proceedings or investigations pending, threatened against Seller or
its officers or directors before any court, any administrative agency or
administrative officer or executive, which could result in any material
adverse change in the business, operations, financial condition or properties
of Seller or the Assets.
(f) Waiver of Conditions Precedent. Purchaser may waive any or all
------------------------------
of the conditions precedent set forth in this Article 8.2, either
prospectively or retroactively, by giving written notice of such waiver to
Seller. No waiver of any condition precedent pursuant to this paragraph
8.2(f) shall, unless otherwise expressly stated in such written notice of
waiver, extend to any other covenant or agreement contained herein or to any
other condition precedent.
(g) Breach or Violation. Seller shall have obtained, or caused to be
-------------------
obtained, each consent and approval necessary in order that the transactions
contemplated herein not constitute a breach or violation of, or result in a
right of termination or acceleration of, or creation of any encumbrance on any
of the Assets, pursuant to the provisions of any agreement, arrangement or
undertaking of or affecting Seller or any license, franchise or permit of or
affecting Seller.
(h Governmental Filings. All material governmental filings,
---------------------
authorizations and approvals that are required for the consummation of the
------
transactions contemplated hereby shall have been duly made and obtained by
Seller (except filings required by Purchaser pursuant to applicable securities
laws).
(i Discovery of Facts or Circumstances. Purchaser shall not have
---------------------------------------
discovered any fact or circumstance existing as of the date of this Agreement
-
which has not been disclosed to Purchaser as of the date of this Agreement
regarding the business, assets, liabilities, properties, condition (financial
or otherwise), results of operations or prospects of Seller which is,
individually or in the aggregate with other such facts and circumstances,
materially adverse to Seller or the value of the Assets.
(j Damage. There shall have been no damage, destruction or loss of
------
or to any property or properties owned or used by Seller, or to the Assets,
whether or not covered by insurance which, in the aggregate, has or would be
reasonably likely to have, a material adverse effect on Seller.
(k Opinion of Counsel. Purchaser shall have received from counsel to
------------------
Seller, an opinion dated the Closing, to the following effect:
(i0 Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of Washington.
(ii0 Upon the consummation of the transactions described herein, Purchaser
will own the Assets free and clear of all known adverse claims and charges,
encumbrances, claims, liens or other encumbrances whatsoever, except as
otherwise disclosed herein.
(iii0 Execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action, corporate or otherwise, by Seller, this Agreement is a valid
and binding obligation of Seller, enforceable against Seller in accordance
with its terms except as enforcement can be limited by general equitable
principles or bankruptcy, insolvency or similar laws affecting creditor's
rights generally.
(iv0 The execution and delivery of this Agreement and the sale of the
Assets by Seller will not violate or conflict with the Articles of
Incorporation or ByLaws of Seller or any agreement or instrument known to such
counsel to which Seller is a party or by which Seller or its Assets are bound.
(v0 No consent, approval, authorization or order of, and no notice to or
filing with, any governmental agency or body or any court is required to be
obtained or made by Seller for the sale of the Assets pursuant to this
Agreement, except such as have been obtained or made.
(vi0 Except as disclosed in this Agreement or the Exhibits hereto,
such counsel is not aware, after reasonable investigation, of any pending or
threatened action, suit, proceeding or investigation before any court or any
public, regulatory or governmental agency, authority or body, involving Seller
or any of its officers or directors, and such counsel does not know of any
legal matter or government proceedings regarding Seller.
(vii0 Nothing has come to such counsel's attention in connection with such
counsel's representation of Seller that has caused such counsel to believe
that this Agreement or the Exhibits thereto contain an untrue statement of a
material fact or omits to state a material fact required to be stated therein,
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
ARTICLE XIXI
SURVIVAL OF REPRESENTATIONS AND WARRANTIESSURVIVAL OF REPRESENTATIONS AND
WARRANTIES
Except as otherwise stated below, the representations, warranties,
covenants and agreements made by the respective parties in this Agreement or
in a certificate executed and delivered in connection with the transactions
contemplated hereby shall survive the Closing for a period of three (3) years.
The foregoing shall be subject to the exception that any claims relating to
tax matters covered in paragraphs 3.27 and 3.28 hereof shall survive for the
period of the applicable statute of limitations pertaining to tax claims. All
covenants, agreements, representations and warranties made herein or pursuant
hereto shall be deemed to be material and to have been relied upon by the
parties hereto, notwithstanding any investigation heretofore or hereinafter
made by or on behalf of the parties prior to the Closing, provided, however,
that no legal remedy, at law or in equity, shall be available with respect to
any loss, liability, or breach of agreement or warranty or misrepresentation
if the party alleging such loss, liability, breach, or misrepresentation had
actual knowledge of the existence, nature and extent thereof on the Closing
and, despite such knowledge, proceeded with the Closing without objection.
ARTICLE XIIXII
INDEMNIFICATION
10.1 INDEMNIFICATION10.1 INDEMNIFICATION. Subject to the
------------------- ---------------
provisions of Article IX and this Article X, Seller and Shareholders agree to
indemnify in respect of, and hold Purchaser harmless against, any and all
damages, claims, deficiencies, losses, and expenses (collectively "Damages")
resulting from (i) any misrepresentation, breach of warranty, or
nonfulfillment or failure to perform any covenant or agreement on the part of
Seller or the Shareholders made as a part of or contained in this Agreement or
in any certificate executed and delivered pursuant to this Agreement or in
connection with the transactions contemplated hereby, except for Damages
resulting from any such misrepresentations, breach of warranty or
nonfulfillment or failure to perform any such covenant or agreement known to
Purchaser and waived in writing by Purchaser as of the Closing and (ii)
Seller's operation of its business through the date of Closing. Subject to
the provisions of Article IX and this Article X, Purchaser agrees to indemnify
in respect of, and hold Seller harmless against, any and all Damages resulting
from (i) any misrepresentation, breach of warranty, or nonfulfillment or
failure to perform any covenant or agreement on the part of Purchaser made as
a part of or contained in this Agreement or in any certificate executed and
delivered pursuant to this Agreement or in connection with the transactions
contemplated hereby except for Damages resulting from any such
misrepresentations, breach of warranty or nonfulfillment or failure to perform
any such covenant or agreement known to Seller and waived in writing by Seller
as of the Closing and (ii) Purchaser's operation of the purchased Assets after
the date of Closing. The party claiming indemnification hereunder is
hereinafter referred to as the "Indemnified Party" and the party against whom
such claims are asserted hereunder is hereinafter referred to as the
"Indemnifying Party". Damages for which a claim or action may be asserted
hereunder are hereinafter referred to as a "Loss".
10.2 LIMITATION OF LIABILITY10.2 LIMITATION OF LIABILITY. Neither
--------------------------- -----------------------
party shall be liable to the other party to this Agreement except to the
extent that the aggregate amount of Losses for which they would otherwise (but
for this provision) be liable under this Article X exceeds in the
aggregate the sum of $25,000 and then only to the extent of such excess.
Claims for indemnification by either party shall be limited to the lesser of
(i) the amount of the Purchase Price, or (ii) the amount of any damages,
claims, deficiencies, losses and expenses paid by the Indemnified Party to a
third party.
10.3 METHOD OF ASSERTING CLAIMS10.3 METHOD OF ASSERTING CLAIMS. All
------------------------------ --------------------------
claims for indemnification by any Indemnified Party under this Article X shall
be asserted and resolved in writing as follows:
(a In the event that any claim or demand for which an Indemnifying
Party would be liable to an Indemnified Party hereunder is asserted against or
sought to be collected from such Indemnified Party by a third party, said
Indemnified Party shall, within twenty (20) days of such claim or demand being
made, notify the Indemnifying Party of such claim or demand, specifying the
nature of and specific basis for such claim or demand and the amount or the
estimated amount thereof to the extent then feasible (the "Claim Notice"). The
estimate of Loss contained in the Claim Notice shall not limit the amount of
the Indemnifying Party's ultimate liability under the claim. The Indemnifying
Party shall not be obligated to indemnify the Indemnified Party with respect
to any such claim or demand if the Indemnified Party fails to notify the
Indemnifying Party thereof in accordance with the provisions of this Agreement
within said twenty (20) day period. The Indemnifying Party shall have 30 days
from the personal delivery or mailing of the Claim Notice (the "Notice
Period") to notify the Indemnified Party (i) whether or not the liability of
the Indemnifying Party to the Indemnified Party hereunder with respect to such
claim or demand is disputed, and (ii) whether or not the Indemnifying Party
desires, at the sole cost and expense of the Indemnifying Party, to defend the
Indemnified Party against such claim or demand; provided, however, that any
Indemnified Party is hereby authorized prior to and during the Notice Period
to file any motion, answer or other pleading which it shall deem necessary or
appropriate to protect its interest or those of the Indemnifying Party and not
unreasonably prejudicial to the Indemnifying Party. In the event that the
Indemnifying Party notifies the Indemnified Party within the Notice Period
that it desires to defend the Indemnified Party against such claim or demand,
then, except as hereinafter provided, the Indemnifying Party shall have the
right to defend by all appropriate proceedings, which proceedings shall be
promptly settled or prosecuted by it to a final conclusion. If the
Indemnified Party desires to participate in, but not control, any such defense
or settlement it may do so at its sole cost and expense. If requested by the
Indemnifying Party, the Indemnified Party agrees to cooperate with the
Indemnifying Party and its counsel in contesting any claim or demand which the
Indemnifying Party elects to contest, or, if appropriate and related to the
claim in question, in making any counterclaim against the person asserting the
third party claim or demand, or any cross complaint against any person but in
any such case at the sole cost and expense of the Indemnifying Party. No
claim may be settled without the consent of the Indemnifying Party, unless
such settlement includes the complete release of the Indemnifying Party.
(b In the event any Indemnified Party should have a claim against any
Indemnifying Party hereunder which does not involve a claim or demand being
asserted against or sought to be collected from it by a third party, the
Indemnified Party shall send a Claim Notice with respect to such claim to the
Indemnifying Party. If the Indemnifying Party does not notify the Indemnified
Party within the Notice Period that it disputes such claim, the amount of such
claim shall be conclusively deemed a liability of the Indemnifying Party
hereunder. If the Indemnifying Party has disputed such claim, as provided
above, such dispute shall be resolved by arbitration as provided in Article
13.11.
10.4 PAYMENT OF CLAIM10.4 PAYMENT OF CLAIM. Upon the
---------------------- ----------------
determination of the liability of Seller or Purchaser under Article 10.1, 10.2
and 10.3, as the case may be, after payment by the Indemnified Party of, or
upon entry of final judgment or reaching of a settlement in respect of, an
Indemnifiable Claim, or determination of a Loss to the Indemnified Party
occasioned by the breach of a representation and warranty by the Indemnifying
Party, and notice thereof to the Indemnifying Party, the Indemnifying Party
shall within thirty (30) days after receipt of such notice pay to the
Indemnified Party the amount of the payment, judgment, settlement or Loss, as
the case may be.
10.5 OTHER RIGHTS AND REMEDIES NOT AFFECTED10.5 OTHER RIGHTS AND
------------------------------------------- ----------------
REMEDIES NOT AFFECTED. The indemnification rights of the parties under this
------------------
Article X are independent of and in addition to such rights and remedies as
the parties may have at law or in equity or otherwise for any
misrepresentation, breach of warranty or failure to fulfill any agreement or
covenant hereunder on the part of any party hereto including without
limitation the right to seek specific performance, rescission or restitution,
none of which rights or remedies shall be affected or diminished hereby.
10.6 POST-CLOSING ADJUSTMENTS AND RIGHT OF OFFSET POST-CLOSING
-------------------------------------------- ------------
ADJUSTMENTS AND RIGHT OF OFFSET. As promptly as practicable, but in no event
------------------------------
later than 120 days following the Closing, the Purchaser may audit and
calculate the actual results of operations from January 1, 1998 through the
Closing (as well as the prior fiscal year), taking into account the
transaction expenses paid by the Seller through the date of Closing. In the
event of a material variation in revenues between the results of such audit
and the financial statements provided by Seller to Purchaser prior to the
Closing (such material variation in revenues to be defined as a variation of
more than the lesser of (i) 2% of revenues, or (ii) $10,000), then the
Purchaser shall have the right to offset 55% of such material variation of
revenues in excess of either of the above-described amounts against the
promissory note payment due in the quarter immediately following the
determination of such material variation. The Note shall also contain
provisions which shall permit the Purchaser to offset indemnification claims
under Article X against payments due under the Note. The right of offset
shall expire upon the date the Note is due and payable, provided that the
right of offset regarding tax matters will survive the Closing until
expiration of the applicable statute of limitations.
ARTICLE XIIIXIII
AMENDMENT, TERMINATION AND BREACHTERMINATION AND BREACH
11.1 AMENDMENT AND MODIFICATION11.1 AMENDMENT AND MODIFICATION.
------------------------------ --------------------------
This Agreement may be amended, modified or supplemented only by an instrument
in writing, executed after the date hereof, making specific reference to this
Article and to each Article and paragraph hereof to which such amendment,
modification or supplement applies, which document shall be signed by an
authorized officer of Purchaser and by Seller.
11.2 TERMINATION AND ABANDONMENT11.2 TERMINATION AND ABANDONMENT.
------------------------------- ---------------------------
This Agreement may be terminated and the transaction provided for by this
Agreement may be abandoned without liability on the part of any party to any
other party:
(a At any time before the Closing Date, by mutual consent of
Purchaser and Seller;
(b Commencing five days prior to Closing and until the Closing, by
Purchaser, if any of the conditions provided for in paragraph 8.2 of this
Agreement have not been met and have not been waived by Purchaser in writing;
(c Commencing five days prior to Closing and until the Closing, by Seller,
if any of the conditions of Paragraph 8.1 of this Agreement have not been met
and have not been waived by Seller in writing; and
(d By either party if the mutual conditions to Closing provided for in
paragraph 8.3 of this Agreement have not been met at time of Closing.
In the event of the termination and abandonment of this Agreement by any
party as above provided in this Article XI, written notice shall forthwith be
given to the other party, and each party shall be solely responsible to pay
its own expenses incident to preparation for the consummation of this
Agreement and the transactions contemplated hereunder (except as otherwise
provided herein).
ARTICLE XIVXIV
CLOSING
12.1 CLOSING12.1 CLOSING. The closing of this Agreement (the
----------- -------
"Closing") shall become effective July 31, 1998 unless a later time and date
is mutually agreed upon by the parties hereto.
12.2 ALLOCATIONS12.2 ALLOCATIONS. At the closing, the parties shall
--------------- -----------
allocate or prorate all the portion attributable to Seller of the water,
sewer, electric, other utilities and rent through the date of Closing and
shall make closing adjustments, if necessary, to take into account such
allocations and prorations. For purposes of income and expense all income and
expenses incurred on or before the day of Closing shall be billed and
collected by, and paid for, respectively, by Seller. The effective time of
the Closing shall be 12:01 a.m. on the day following the Closing date.
12.3 SELLER'S DELIVERIES AT CLOSING12.3 SELLER'S DELIVERIES AT
------------------------------------- ----------------------
CLOSING. At the Closing Seller will deliver the following documents to the
Purchaser all of which shall be reasonably satisfactory in form and substance
to the Purchaser and its counsel:
(a Xxxx of Sale. Xxxx of Sale for the Assets in the form annexed as
------------
Exhibit 12.3 hereto, together with such deeds, instruments, conveyances,
-------------
certificates of title, assignments, assurances and other documents as may be
-----
required to sell, convey and transfer title to the Assets from Seller to the
Purchaser free and clear of any and all liens, claims, charges, taxes,
encumbrances, pledges, security interests, options or other restrictions of
any kind.
(b Assignment of Intellectual Property. Assignment of Intellectual
-----------------------------------
Property annexed as Exhibit 3.18 together with assurances and other documents
------------
as may be required to transfer all of Seller's right, title and interest in
the Intellectual Property.
(c Assignment of Contracts, Leases and Other Agreements. Assignment of
----------------------------------------------------
contracts, leases and other agreements, annexed as Exhibit 3.20 together with
------------
assurances and other documents as may be required to transfer all of Seller's
right, title and interest in the contracts, leases and other agreements.
(d Opinion of Counsel. An opinion from Krutch Xxxxxxx, counsel to Seller,
------------------
dated the Closing Date, in the form described in Article 8.2 of this
Agreement.
(e Consents and Approvals. All consents, approvals and authorizations,
----------------------
all notices and all registrations and filings required to be obtained, given
or made under any law, statute, rule, regulation, judgment, order, injunction,
contract, agreement or other instrument to which Seller is subject, bound or a
party, or by which Seller or any of its properties is bound or subject, in
each case which is required to permit the consummation of the transactions
contemplated by the Agreement without contravention, violation or breach by
the Seller of any of the terms thereof.
(f Certificates. Certificate of good standing for Seller from the
------------
Secretary of State of the state of incorporation of Seller dated as of a date
reasonably prior to the Closing Date.
(g Resolutions. Certified copy of resolutions of the Board of Directors
-----------
and the Shareholders of Seller authorizing, inter alia, the execution and
delivery of this Agreement, the sale of the Assets and the other transactions
contemplated under this Agreement.
(h Employment Agreements. The employment agreement of Xxxxx X. xx Xxx
---------------------
set forth in the form annexed as Exhibit 7.7 hereto.
------------
(i Non-Compete and Confidentiality Agreements. The non-compete
-------------------------------------------
agreements of all key employees of Seller in the form annexed as Exhibit 7.8
-----------
hereto.
(j Delivery of Corporate and Business Records. Such other corporate and
------------------------------------------
business records related to the Assets as may be reasonably requested by the
Purchaser including without limitation employee and personnel folders and
applications, payroll, tax related records and financial data.
(k Officer's Certificate in the form described in Article 8.2 of this
---------------------
Agreement.
(l Other documents. Such other documents, instruments, certificates and
---------------
agreements including assignment of space lease to Purchaser, as Purchaser and
its counsel may reasonably request.
(m Franchise Agreement. The franchise agreement and any license agreement
-------------------
by and between the Seller and the Purchaser shall be delivered to Purchaser
and, upon such delivery, Seller shall be released from any and all further
obligation and liability under such franchise agreement and any license
agreement.
Subject to final royalty calculations and confirmation of receipt of such
royalties by Purchaser, Purchaser acknowledges that the obligations of Seller
have been satisfied under the franchise agreement through Closing.
12.4 PURCHASER'S DELIVERIES AT CLOSING12.4 PURCHASER'S DELIVERIES
------------------------------------- ----------------------
AT CLOSING. At the Closing, Purchaser shall deliver the following documents
-----------
to Seller all of which shall be in a form reasonably acceptable to Seller and
their counsel:
(a Purchase Price. The purchase price for the Assets referred to in
--------------
Article 2.2 including the cash portion and the Note.
(b Consents and Approval. All consents, approvals and
-----------------------
authorizations, all notices and all registrations and filings required to be
--
obtained, given or made under any law, statute, rule, regulation, judgment,
order, injunction, contract, agreement or other instrument to which the
Purchaser is a party, or by which it or any of its properties is bound or
subject, in each case which is required to permit the consummation of the
transactions contemplated by this Agreement without contravention, violation
or breach by the Purchaser of any of the terms thereof.
(c Opinion of Counsel. An opinion from counsel to the Purchaser, dated
------------------
the Closing Date, in the form described in Article 8.1 of this Agreement.
(d Certificates. Certificate of good standing, dated as of a date
------------
reasonably prior to the date of Closing, from the Secretary of State of the
State of Colorado as to the good standing of the Purchaser.
(e Resolutions. Certified copy of resolutions of the Board of Directors
-----------
of the Purchaser authorizing, inter alia, the execution and delivery of this
Agreement and the Note, the purchase of the Assets, and the other transactions
contemplated hereby.
(f Officer's Certificate in the form described in Article 8.1 of this
---------------------
Agreement.
(g Other Documents. Such other documents, instruments, certificates and
---------------
agreements including without limitation, if assumed, the assumption of the
lease, the Security Agreement and UCC-1 Financing Statement, and such other
documents as Seller and its counsel may reasonably request.
12.5 FORWARDING OF RECEIVABLES AND PAYMENT OF EXPENSES12.5
-------------------------------------------------------
FORWARDING OF RECEIVABLES AND PAYMENT OF EXPENSES. Following the Closing, in
--------------------------------------------
the event the Purchaser receives payment of receivables which were billed by
Seller, and are the property of Seller, the Purchaser shall take prompt action
(defined to mean not less than every seven calendar days), to forward to
Seller such checks or other remittances as Purchaser shall have received and
which are the property of Seller. Likewise, in the event payments are
received by Seller which are the property of Purchaser and which relate to
receivables created after the purchase of the Assets, the Seller shall
promptly forward (not later than seven calendar days after receipt thereof)
such checks or other remittances to the Purchaser representing payments on
receivables which are the property of Purchaser. In addition, any expenses
incurred by the Seller in the operation of its business from and after August
1, 1998 which are paid by Seller shall be reimbursed by Purchaser within ten
days of Seller submitting invoices and receipts with respect to any such
expenses incurred and paid for by Seller for expenses incurred and paid for
from and after August 1, 1998.
12.6 REMOVAL OF PERSONAL EFFECTS FOLLOWING CLOSING12.6 REMOVAL OF
------------------------------------------------- ----------
PERSONAL EFFECTS FOLLOWING CLOSING. In the event the Seller maintains assets
-------------------------------
which are the personal property of Seller on the premises and Seller desires
to remove such personal property, the Seller shall have a period of sixty days
following the Closing to remove such personal property. As to any such
personal property removed, the Seller shall provide the Purchaser with a
schedule of such property prior to the removal of the same from the premises.
ARTICLE XV
MISCELLANEOUS
13.1 NOTICE13.1 NOTICE. All notices and communications required
---------- ------
or permitted to be given hereunder shall be in writing, signed by the sender,
and delivered by personal delivery overnight courier service or by registered
or certified mail to:
If to Purchaser: Xxxxxx X. Xxxxxx, President
Factual Data Corp.
0000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Berliner Xxxxxx Xxxxxx & Xxxxxxxx, P.C.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000-0000
If to Seller: Xxxxx X. xx Xxx , President
FD Northwest Inc.
0000 Xxxxx 000xx Xxxxxx, Xxxxx 00
Xxxxxxx, Xxxxxxxxxx 00000
With a copy to: Xxxxxx X. Xxxxxx, Esq.
Krutch Xxxxxxx
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
or such other address as shall have been furnished in writing. Receipt by, or
filing with, the respective parties of any communications shall be deemed to
have occurred for the purpose of this Agreement, when personally delivered, or
next business day if sent by overnight courier, or two days after deposit
thereof, postage prepaid, properly addressed, in the United States mail.
13.2 ENTIRE AND SOLE AGREEMENT13.2 ENTIRE AND SOLE AGREEMENT.
----------------------------- -------------------------
This Agreement, including all Exhibits hereto (which by this reference shall
incorporate herein all such Exhibits as if more fully set forth herein),
constitutes the entire agreement between the parties and as of Closing
supersedes all agreements, representations, warranties, statements, promises
and understandings, whether oral or written, with respect to the subject
matter hereof. After Closing neither party shall be bound by or charged with
any oral or written agreements, representations, warranties, statements,
promises or understandings not specifically set forth in this Agreement or in
the certificates or documents delivered in connection herewith.
13.3 SUCCESSORS AND ASSIGNS13.3 SUCCESSORS AND ASSIGNS. Except as
-------------------------- ----------------------
otherwise provided in this Agreement, all covenants and agreements of the
parties contained in this Agreement shall be binding upon and inure to the
benefit of the respective successors and permitted assigns of the parties
hereto and the heirs, personal representatives, executors and assigns of the
Shareholders. This Agreement may not be assigned by any party hereto without
the prior express written consent of the other parties hereto.
13.4 EXPENSES13.4 EXPENSES. Whether or not the transactions
------------ --------
contemplated hereby shall be consummated, each party shall be solely
responsible for payment of all expenses incurred by it in connection with the
consummation of this Agreement and the transactions contemplated hereunder
except as otherwise provided herein.
13.5 SEVERABILITY13.5 SEVERABILITY. Should any one or more of
---------------- ------------
the provisions of this Agreement be determined to be illegal or unenforceable,
all other provisions of this Agreement shall be given effect separately from
the provision or provisions determined to be illegal or unenforceable and
shall not be affected thereby.
13.6 GOVERNING LAW13.6 GOVERNING LAW. This Agreement shall be
------------------ -------------
construed and enforced in accordance with and governed by the laws of the
State of Colorado without regard to conflicts of laws principles.
13.7 COUNTERPARTS13.7 COUNTERPARTS. This Agreement may be executed
---------------- ------------
simultaneously in two or more counterparts, each of which shall be an
original, but all of which together shall constitute one and the same
Agreement.
13.8 AMENDMENTS13.8 AMENDMENTS. Neither this Agreement nor any term
-------------- ----------
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing in accordance with paragraph 11.1 hereof.
13.9 NO THIRD PARTY BENEFICIARY13.9 NO THIRD PARTY BENEFICIARY. The
------------------------------ --------------------------
terms and provisions of this Agreement are intended solely for the benefit of
the parties hereto, and it is not the intention of the parties to confer
third-party beneficiary rights upon any other person or entity.
13.10 XXXXXXXX00.00 XXXXXXXX. The headings in this Agreement are for
------------- --------
purposes of convenience and easy reference only and shall not limit or
otherwise affect the meaning hereof.
13.11 DISPUTES13.11 DISPUTES. In the event of any dispute which
------------- --------
arises between the parties and which relates to the subject matter of this
Agreement, the parties acknowledge and agree that any such dispute shall be
submitted for binding arbitration in Denver, Colorado in accordance with the
Arbitration Commercial Rules procedures established by the American
Arbitration Association or, if such association is not then in existence, an
independent association of arbitrators which may be designated by agreement of
the parties. In the event the parties are unable to agree on an independent
association of arbitrators from which arbitrators may be drawn, either party
may apply to a court of competent jurisdiction for appointment of arbitrators,
however, such application will only be made in the event the American
Arbitration Association is not then in existence. The arbitrator(s) shall
make detailed written findings to support their award. The prevailing party
in any such arbitration proceeding shall be awarded such costs and expenses
(including reasonable attorney's and expert witness' fees) as were incurred by
the prevailing party as a result of the institution and prosecution of the
arbitration proceeding including all costs and expenses (including reasonable
attorney's and expert witness fees) to enter judgment upon or enforce any such
award including all appellate proceedings.
13.12 DELIVERY OF EXHIBITS13.12 DELIVERY OF EXHIBITS. All Exhibits to
------------------------- --------------------
be delivered by either of the parties hereto upon execution of this
Agreement which are not so delivered shall be delivered to the other party not
later than 20 days from the date of the execution of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
PURCHASER:
FACTUAL DATA CORP.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, Chairman of the Board
SELLER:
FD NORTHWEST, INC.
By: /s/ Xxxxx X. xx Xxx
-------------------------
Xxxxx X. xx Xxx , President
RWW\FACTUAL\APA-FDN.CLN
TABLE OF ATTACHMENTS
EXHIBIT DESCRIPTION
------- -------------------------
2.1 List of Acquired Assets
2.2(c)(i) Form of Promissory Note
2.2(c)(ii) Form of Security Agreement
2.3 List of Assumed Liabilities
3.1(a) Articles of Incorporation, as amended
3.1(b) ByLaws, as amended
3.2(a) Certificate of Seller Shareholder Approval
3.2(b) Directors' Consent
3.7(a) Governmental Notices
3.12 Litigation
3.15 Exceptions to Title of Assets
3.16(a) Customer Accounts
3.16(b) Customer Contracts or Agreements
3.16(c) Impaired Customer Contracts
3.16(d) Slow Pay Contracts or Agreements
3.17 License Agreements
3.18 Intellectual Property
3.19 Seller's Customers
3.20 Contracts
3.23 Liabilities not on Financial Statements
3.24 Material Adverse Changes
3.26 Leases
3.27 Tax Returns
3.28 Tax Notices
3.29 Employment Matters
3.30 Benefit Plans
7.7 Form of Employment Agreement with Xxxxx X. xx Xxx
7.8 Non-Compete and Confidentiality Agreements with Key
Employees
8.1(a) Form of Certificate of Purchaser
8.2(a) Form of Certificate of Seller
12.3 Xxxx of Sale
