EXHIBIT 2.1
AMENDED AND RESTATED
ASSET TRANSFER AGREEMENT
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This AMENDED AND RESTATED AGREEMENT dated as of this 20th day of August,
1996, by and between Viisage Technology, Inc., a Delaware corporation
("Viisage"), and Xxx Acquisition Corp., a Massachusetts corporation doing
business as Xxx Technologies ("Xxx").
W I T N E S E T H:
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WHEREAS, Xxx currently operates a division which develops, markets and
supports the Imaging Division defined below;
WHEREAS, Viisage is preparing a Registration Statement on Form S-1 to be
filed with the Securities and Exchange Commission with respect to an initial
public offering (the "IPO") of the common stock, $.001 par value per share, of
Viisage (the "Common Stock") and Xxx is entering into this transaction in
contemplation of the IPO which will result in Xxx owning less than 80% of the
outstanding capital stock of Viisage;
WHEREAS, Xxx wishes to contribute certain assets and liabilities of the
Imaging Division to Viisage, a Delaware corporation, pursuant to Section 351 of
the Internal Revenue Code, effective as of immediately before the effectiveness
of the registration statement being filed in connection with the IPO, in
consideration of (i) 5,680,000 shares (the "Common Shares") of the Common Stock
and (ii) the assumption by Viisage of the Assumed Liabilities pursuant to the
terms contained herein; and
WHEREAS, the parties desire to amend and restate the asset transfer
agreement between them dated June 24, 1996.
NOW, THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree, subject to the terms and
conditions set forth herein, as follows:
Section 1. Certain Definitions.
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Certain terms which are not otherwise defined elsewhere in this Agreement
are defined below:
"Access Control Field" has the meaning given to it in the License Agreement
between the parties hereto of even date herewith.
"Adverse Consequences" means all actions, suits, proceedings, hearings,
investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, amounts paid
in settlement, Liabilities, obligations, Taxes, liens, losses, expenses, and
fees, including
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court costs and reasonable attorneys' fees and expenses.
"Assumed Liabilities" means (a) all Liabilities of the Imaging Division set
forth on the face of its Most Recent Balance Sheet; (b) all Liabilities of the
Imaging Division which have arisen since the date of the Most Recent Balance
Sheet in the Ordinary Course of Business; (c) all obligations of the Imaging
Division under the licenses, sublicenses, agreements, contracts, instruments,
other arrangements, permits and other rights included in the Subject Assets
(including without limitation any product liability or warranty claims which
exist or may arise under customer contracts); and (d) all other Liabilities and
obligations of the Imaging Division set forth in the Disclosure Schedule
attached hereto; provided, however, that the Assumed Liabilities shall not
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include (i) any Liability of Xxx which does not relate to the Imaging Division,
(ii) any Liability of Xxx for unpaid Taxes (with respect to the Imaging Division
or otherwise) for periods prior to the Closing, (iii) any Liability of Xxx for
Taxes arising in connection with the consummation of the transactions
contemplated hereby, (iv) any obligation of Xxx to indemnify any person by
reason of the fact that such person was a director, officer, employee, agent, or
member of an advisory board (including without limitation the Imaging Division's
advisory board) of Xxx (whether such indemnification is for judgments, damages,
penalties, fines, costs, amounts paid in settlement, losses, expenses, or
otherwise and whether such indemnification is pursuant to any statute, charter
document, by-law, agreement, or otherwise), (v) any Liability of Xxx for costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby, (vi) any Liability with respect to the lease or use of the
premises known as 000 Xxxx Xxxxxx, Xxxxx, Xxxxxxxxxxxxx (this is the subject of
the Use and Occupancy Agreement and referenced to in Section 7(b) below), or
(vii) any Liability or obligation of Xxx under this Agreement.
"Confidential Information" means any information concerning the business
and affairs of the Imaging Division that is not already generally known to the
public.
"Employee Benefit Plan" means any (a) nonqualified deferred compensation or
retirement plan or arrangement which is an Employee Pension Benefit Plan (as
defined in ERISA Section 3(2)), (b) qualified defined contribution retirement
plan or arrangement which is an Employee Pension Benefit Plan, (c) qualified
defined benefit retirement plan or arrangement which is an Employee Pension
Benefit Plan (including any multiemployer plan), or (d) Employee Welfare Benefit
Plan (as defined in ERISA Section 3(1)) or material fringe benefit plan or
program.
"Environmental, Health, and Safety Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act of
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1986, the Toxic Substances Control Act, the Clean Air Act, and the Clean Water
Act, each as amended, together with all other laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings, and
charges thereunder) of federal, state, local, and foreign governments (and all
agencies thereof) concerning pollution or protection of the environment, public
health and safety, or employee health and safety, including laws relating to
emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or wastes
into ambient air, surface water, ground water, or lands or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants, or chemical, industrial,
hazardous, or toxic materials or wastes.
"Imaging Division" shall mean the business of the Viisage Technology
Division of Xxx as conducted on or before the closing, including, without
limitation, as it is described in the Registration Statement on Form S-1 filed
with the Securities and Exchange Commission in connection with the IPO.
"Intellectual Property" means (a) all inventions (whether patentable or
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, service marks, logos, trade names,
and corporate names, including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith (other than
those described in subsection (b) in the definition of the Subject Assets), (c)
all copyrightable works, all copyrights, and all applications, registrations,
and renewals in connection therewith, (d) 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),
(e) all computer software (including data and related documentation), (f) all
other proprietary rights, and (g) all copies and tangible embodiments thereof
(in whatever form or medium), relating to the Imaging Division.
"Liability" means any liability, cost, expense or obligation (whether known
or unknown, whether asserted or unasserted, whether absolute or contingent,
whether accrued or unaccrued, whether liquidated or unliquidated, and whether
due or to become due).
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
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"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (a) mechanic's, materialmen's, and
similar liens, (b) liens for Taxes not yet due and payable, (c) purchase money
liens and liens securing rental payments under capital lease arrangements, and
(d) other liens arising in the Ordinary Course of Business and not incurred in
connection with the borrowing of money.
"Subject Assets" means all right, title, and interest in and to all of the
assets of Xxx constituting the Imaging Division, including all of its (a)
tangible personal property (including without limitation any equipment,
inventories of raw materials and supplies, manufactured and purchased parts,
goods in process and finished goods), (b) all rights to the names, trademarks
and service marks "Viisage," "Viisage Technology," "SensorMast," "Visual
Inspection Systems," "Electronic Facial Identification Systems," and all other
names, trademarks, and service marks of the Imaging Division, (c) agreements,
contracts, instruments, other similar arrangements, and rights thereunder, (d)
accounts, notes, and other receivables, (e) claims, deposits, prepayments,
refunds, causes of action, chooses in action, rights of recovery, rights of set
off, and rights of recoupment, (f) permits, licenses, registrations,
certificates, variances, and similar rights obtained from governments and
governmental agencies, and (g) books, records, ledgers, files, documents,
correspondence, lists, plans, drawings, and specifications, promotional
materials, studies, reports, and other printed or written materials; provided
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however, that the Subject Assets shall not include (i) any Intellectual Property
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or goodwill associated therewith, licenses and sublicenses granted to or
obtained by Xxx with respect thereto, and rights thereunder, remedies against
infringements thereof, and rights to protection of interests therein under the
laws of all jurisdictions (other than the names, trademarks, and service marks
of the Imaging Division described above which are the subject of the license
agreement between the parties of even date herewith), (ii) any assets of Xxx
which do not relate to the Imaging Division, (iii) any rights under Xxx'x lease
dated as of February 23, 1990 for premises known as 000 Xxxx Xxxxxx, Xxxxx,
Xxxxxxxxxxxxx, (iv) the furniture, fixtures and equipment described in Exhibit B
of the Use and Occupancy Agreement between the parties of even date herewith, or
(v) any cash.
"Tax" means any federal, state, local, or foreign income, gross receipts,
license, payroll, employment, excise, severance, stamp, occupation, premium,
windfall profits, environmental (including taxes under Code Sec. 59A), customs
duties, capital stock, franchise, profits, withholding, social security (or
similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
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"Tax Returns" means any return, declaration, report, claim for refund, or
information return or statement relating to Taxes including any schedule or
attachment thereto, and including any amendment thereof.
Section 2. Contribution and Transfer of Subject Assets; Assumption of
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Assumed Liabilities; Closing; Deliveries.
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(a) Closing. The closing of the transactions contemplated by this
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Agreement (the "Closing") shall take place at the principal office of the
parties at 000 Xxxx Xxxxxx, Xxxxx, Xxxxxxxxxxxxx, 00000, effective as of 10:00
A.M. (eastern time) on the day to which Viisage requests, pursuant to Rule 461
promulgated under the Securities Act of 1933, as amended, acceleration of the
effectiveness of the Registration Statement filed by Viisage in connection with
the IPO, or at such other time and place as the parties hereto may mutually
determine (the "Closing Date"); provided that, this Agreement shall terminate
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and be of no further force and effect if such the Closing Date does not occur by
September 30, 1997.
(b) Contribution and Transfer of Assets. On and subject to the terms
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of this Agreement, at the Closing, Xxx will contribute to Viisage, under Section
351 of the Internal Revenue Code, all of the Subject Assets in consideration of
(i) the Common Shares and (ii) Viisage's assumption of the Assumed Liabilities.
(c) Assumption of Assumed Liabilities. On and subject to the terms
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and conditions of this Agreement, at the Closing, Viisage agrees to assume, and
be responsible for, when due and payable, all of the Assumed Liabilities.
(d) Deliveries at the Closing. At the Closing, (i) Xxx shall
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contribute the Subject Assets to Viisage by execution and delivery of a
Confirmation of Asset Contribution in the form of Exhibit A-1 attached hereto,
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and an assignment of trademarks in the form of Exhibit A-2 attached hereto, and
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an assignment or assignments of contracts in the form of Exhibit A-3 attached
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hereto; (ii) Viisage shall issue the Common Shares to Xxx and deliver to Xxx one
or more certificates evidencing the Common Shares; (iii) Xxx and Viisage shall
execute and deliver the agreements referred to in Section 7 below; and (iv) each
party shall deliver to the other the various instruments and documents
reasonably required to effect the transactions contemplated hereby, in form and
substance satisfactory to the parties hereto.
Section 3. Representations and Warranties.
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(A) Representations and Warranties of Viisage. Viisage represents and
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warrants that the statements contained in this Section 3(A) are correct and
complete as of the Closing Date:
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(a) Organization of Viisage. Viisage is a corporation duly organized,
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validly existing, and in good standing under the laws of the State of Delaware.
(b) Authorization of Transaction. Viisage has full power and
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authority (including full corporate power and authority) to execute and deliver
this Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of Viisage has duly
authorized the execution, delivery and performance of this Agreement by Viisage.
This Agreement constitutes the valid and legally binding obligation of Viisage,
enforceable in accordance with its terms.
(c) Noncontravention. Neither the execution and delivery of this
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Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any government,
governmental agency, or court to which Viisage is subject or any provision of
its Certificate of Incorporation or By-Laws or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify or cancel, or require any
notice under any agreement, contract, lease, license, instrument or other
arrangement to which Viisage is a party or by which it is bound or to which any
of its assets is subject.
(d) Capitalization. Viisage's authorized capital stock consists of
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20,000,000 shares of Common Stock, $.001 par value per share, and 2,000,000
shares of Preferred Stock, $.001 par value per share. Upon the consummation of
the transactions contemplated hereby, the Common Shares will be the only shares
of capital stock of Viisage issued and outstanding. The Common Shares shall be
validly issued, fully paid and nonassessable. There are no outstanding options,
warrants or other rights to acquire any shares of capital stock of Viisage other
than shares of Common Stock reserved for issuance under Viisage's stock option
programs (which equals 20.10% of the fully diluted pre-IPO capitalization of
Viisage).
(B) Representations and Warranties of Xxx. Xxx represents and warrants to
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Viisage that the statements contained in this Section 3(B) are correct and
complete as of the Closing Date, except as set forth in the disclosure schedule
accompanying this Agreement (the "Disclosure Schedule"). The Disclosure Schedule
will be arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this Section 3(B).
(a) Organization of Xxx. Xxx is a corporation duly organized, validly
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existing, and in good standing under the laws of The Commonwealth of
Massachusetts.
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(b) Authorization of Transaction. Xxx has full power and authority
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(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of Xxx have duly authorized
the execution, delivery, and performance of this Agreement by Xxx. This
Agreement constitutes the valid and legally binding obligation of Xxx,
enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
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Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any government,
governmental agency, or court to which Xxx is subject or any provision of the
Articles of Organization or By-Laws of Xxx or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any agreement, contract, lease, license, instrument, or other
arrangement to which Xxx is a party or by which it is bound or to which any of
its assets is subject. Xxx is not required to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any government
or governmental agency in order for the parties to consummate the transactions
contemplated by this Agreement.
(d) Title to Assets. Xxx has good and marketable title to the Subject
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Assets, free and clear of all Security Interests, except encumbrances relating
to the Assumed Liabilities or as set forth on Schedule 3(B)(d) of the Disclosure
Statement.
(e) Subsidiaries. Xxx does not have any subsidiaries.
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(f) Financial Statements. Attached hereto as Exhibit B are the
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following financial statements (collectively the "Financial Statements"): (i)
audited balance sheets and statements of operations, and cash flow as of and for
the fiscal years ended December 31, 1994 and December 31, 1995 (the "Most Recent
Fiscal Year End") for the Imaging Division; and (ii) audited balance sheet and
statements of operations, and cash flow (the "Most Recent Balance Sheet") as of
and for the six months ended June 30, 1996, (the "Most Recent Fiscal Month End")
for the Imaging Division. The Financial Statements have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods covered thereby, present fairly the financial
condition of the Imaging Division as of such dates and the results of operations
of the Imaging Division for such periods, are correct and complete, and are
consistent with the books and records of Xxx and the Imaging Division.
(g) Events Subsequent to Most Recent Fiscal Year End.
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Since January 1, 1996, there has not been any material adverse change in the
business, financial condition, operations, results of operations, or future
prospects of the Imaging Division. Without limiting the generality of the
foregoing, since that date:
(i) no tangible or intangible assets of the Imaging Division have
been sold, leased, transferred, or assigned outside the Ordinary Course of
Business;
(ii) the Imaging Division has not entered into any material
agreement, contract, lease, or license outside the Ordinary Course of
Business;
(iii) no party has accelerated, terminated, made material
modification to, or cancelled any material agreement, contract, lease, or
license relating to the Imaging Division to which Xxx is a party or by
which it is bound;
(iv) no Security Interest has been imposed upon any assets,
tangible or intangible, which relate to the Imaging Division;
(v) Xxx has not made any material capital expenditures which
relate to the Imaging Division outside the Ordinary Course of Business;
(vi) Xxx has not made any material capital investment in, or any
material loan to, any other person or entity outside the Ordinary Course of
Business;
(vii) Xxx has not issued any note, or other debt security, or
created, incurred, assumed, or guaranteed any indebtedness for borrowed
money, capitalized lease obligation, or performance bond which relates to
the Imaging Division outside of the Ordinary Course of Business except as
set forth in the Financial Statements;
(viii) Xxx has not delayed or postponed the payment of accounts
payable and other Liabilities which relate to the Imaging Division outside
the Ordinary Course of Business;
(ix) Xxx has not cancelled, compromised, waived, or released any
right or claim (or series of related rights and claims) which relates to
the Imaging Division outside the Ordinary Course of Business;
(x) Xxx has not granted any license or sublicense of any rights
under or with respect to any Intellectual Property outside of the Ordinary
Course of Business;
(xi) Xxx has not experienced any material damage, destruction, or
loss (whether or not covered by insurance) to
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its property which relates to the Imaging Division;
(xii) Xxx has not made any loan to or entered into any
transaction with any employees of the Imaging Division outside of the
Ordinary Course of Business except with respect to the 1996 Management
Stock Option Plan to be adopted by Viisage;
(xiii) Xxx has not entered into any employment contract or
collective bargaining agreement, written or oral, or modified the terms of
any existing such contract or agreement which relates to the Imaging
Division except for employment agreements set forth in the Disclosure
Schedule;
(xiv) Xxx has not granted any increase in the base compensation
of any of its employees in the Imaging Division outside the Ordinary Course
of Business;
(xv) Xxx has not adopted, amended, modified, or terminated any
bonus, profit-sharing, incentive, severance, or other plan, contract, or
commitment for the benefit of any of its officers or employees of the
Imaging Division, or taken any such action with respect to any other
Employee Benefit Plan;
(xvi) there has not been any other material occurrence, event,
incident, action, failure to act, or transaction outside the Ordinary
Course of Business involving the Imaging Division; and
(xvii) neither Xxx nor the Imaging Division have committed to any
of the foregoing.
(h) Costs Incurred in Excess of Contract Revenues Billed. The costs
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incurred in excess of contract revenues billed of the Imaging Division consists
of raw materials and supplies, manufactured and purchased parts, goods in
process, and finished goods, which, to the knowledge of the chief financial
officer of Xxx, is merchantable and fit for the purpose for which it was
procured or manufactured.
(i) Undisclosed Liabilities. To the knowledge of the chief executive
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officer and chief financial officer of Xxx, Xxx does not have any Liability
relating to the Imaging Division which will not be discharged on the Closing
Date except for the Assumed Liabilities.
(j) Legal Compliance. Xxx has complied with all applicable laws
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(including rules, regulations, codes, plans, injunctions, judgments, orders,
decrees, rulings, and charges thereunder) of federal, state, local, and foreign
governments (and all agencies thereof) which relate to the Imaging Division,
except
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where noncompliance would not have a material adverse effect on the business of
the Imaging Division, and no action, suit, proceeding, hearing, investigation,
charge, complaint, claim, demand, or notice has been filed or commenced against
Xxx or the Imaging Division alleging any failure to so comply.
(k) Tax Matters. Except as set forth on the Disclosure Schedule, Xxx
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has filed all Tax Returns that were required to be filed by it, including but
not limited to Annual Reports required to be filed with respect to any Employee
Benefit Plan or fringe benefit plan, all of which returns were accurate and
complete in all material respects, except for such returns which Xxx'x failure
to file would not have a material adverse effect on the financial condition of
Xxx or Viisage. Xxx has timely paid all Taxes which have become due and
withheld and remitted any Taxes required to be withheld by it. No Taxes have
been incurred with respect to Code Section 4980B. No unsatisfied deficiencies
have been asserted or assessed against Xxx as a result of any audit by any
federal, state, local or foreign taxing authority, and no examination or audit
by any such authority is currently in progress or, to the knowledge of the chief
financial officer of Xxx, threatened, except as set forth on the Disclosure
Schedule. Xxx'x unpaid Taxes for pre-Closing periods do not exceed its accruals
and reserves for Taxes (or obligations established under its shareholders
agreement) and Taxes accrued in the Ordinary Course of Business from the date of
such balance sheet and prior to the Closing. For purposes of this section,
unpaid Taxes shall not include any Taxes attributable or related to the
transactions contemplated by this Agreement.
(l) Real Property. No real property is included in the Subject
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Assets.
(m) Contracts. Section 3(B)(m) Disclosure Schedule lists the
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following contracts and other agreements relating to the Imaging Division to
which Xxx is a party:
(i) any material customer contract relating to the Imaging Division;
(ii) any performance bond relating to the Imaging Division;
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which the
Imaging Division has or will incur any indebtedness for borrowed money, or
any capitalized lease obligation;
(v) any agreement concerning confidentiality or noncompetition;
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(vi) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance, or other material plan or
arrangement for the benefit of employees of the Imaging Division;
(vii) any collective bargaining agreement;
(viii) any agreement for the employment of any individual on a full-
time, part-time, consulting, or other basis providing annual compensation
in excess of $100,000 or providing severance benefits;
(ix) any agreement under which it has advanced or loaned any amount to
any of the employees of the Imaging Division outside the Ordinary Course of
Business; or
(x) any agreement under which the consequences of a default or
termination could have a material adverse effect on the business, financial
condition, operations, results of operations, or future prospects of the
Imaging Division.
Xxx has delivered to Viisage a correct and complete copy of each written
agreement listed in Section 3(B)(m) of the Disclosure Schedule. With respect to
each such agreement: (A) the agreement is legal, valid, binding, enforceable,
and in full force and effect; (B) no party is in material breach or default, and
no event has occurred which with notice or lapse of time would constitute a
material breach or default, or permit termination, modification, or
acceleration, under the agreement; and (C) no party has repudiated any material
provision of the agreement.
(n) Accounts Receivable. All accounts receivable of the Imaging
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Division are reflected properly on its books and records, are valid receivables
subject to no setoffs or counterclaims, are current and collectible, and, to the
knowledge of Xxx'x chief financial officer, will be collected in accordance with
their terms at their recorded amounts, subject only to the reserve for bad debts
set forth on the Most Recent Balance Sheet as adjusted for operations and
transactions through the Closing Date in accordance with the past custom and
practice of the Imaging Division.
(o) Powers of Attorney. There are no outstanding powers of attorney
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executed on behalf of the Imaging Division.
(p) Insurance. Section 3(B)(p) of the Disclosure Schedule lists each
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insurance policy (including policies providing property, casualty, liability,
and workers' compensation coverage and bond and surety arrangements) to which
the Imaging Division has been a party, a named insured, or otherwise the
beneficiary of coverage at any time within the past two years.
(q) Litigation. The Imaging Division is not (i) subject
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to any outstanding injunction, judgment, order, decree, ruling, or charge or
(ii) a party or, to the knowledge of the chief executive officer of Xxx, is
threatened to be made a party to any action, suit, proceeding, hearing, or
investigation of, in, or before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction or before any
arbitrator.
(r) Employees. To the knowledge of the chief executive officer of
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Xxx, no executive, key employee, or group of employees has any plans to
terminate employment with the Imaging Division within the next twelve months.
(s) Employee Benefits. Except as specifically disclosed on Schedule
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3(B)(s), the Imaging Division is not a party to any Employee Benefit Plan. With
respect to each such Employee Benefit Plan, the Imaging Division has furnished
to Viisage complete and accurate copies of the plan, the Internal Revenue
Service determination letter, if any, all plan applications and amendments, the
most recent plan actuarial reports and all reports of or regarding such plan
required by the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), and any regulations issued thereunder. Each such plan has been
maintained in compliance with its terms and applicable statutes and regulations.
Neither the Imaging Division nor Xxx has ever maintained or contributed to a
defined benefit retirement plan or arrangement subject to Title IV of ERISA or
any multiemployer plan as defined in Section 3(37) of ERISA. No "prohibited
transaction" as defined in Section 406 of ERISA or Section 4975 of the Code has
occurred with respect to any Employee Benefit Plan.
(t) Guaranties. The Imaging Division is not a guarantor or otherwise
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is liable for any Liability or obligation (including indebtedness) of any other
person or entity.
(u) Environment, Health, and Safety.
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(i) The Imaging Division and Xxx have complied with all
Environmental, Health, and Safety Laws, and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has
been filed or commenced against either the Imaging Division or Xxx alleging
any failure so to comply. Without limiting the generality of the preceding
sentence, each of the Imaging Division and Xxx has obtained and been in
compliance with all of the terms and conditions of all permits, licenses,
and other authorizations which are required under, and has complied with
all other limitations, restrictions, conditions, standards, prohibitions,
requirements, obligations, schedules, and timetables which are contained
in, all Environmental, Health, and Safety Laws.
(ii) The Imaging Division has no Liability (and has not handled or
disposed of any substance, arranged for the
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disposal of any substance, exposed any employee or other individual to any
substance or condition, or owned or operated any property or facility in
any manner that could form the basis for any present or future action,
suit, proceeding, hearing, investigation, charge, complaint, claim, or
demand against any of the Imaging Division or Xxx giving rise to any
Liability) for damage to any site, location, or body of water (surface or
subsurface), for any illness of or personal injury to any employee or other
individual, or for any reason under any Environmental, Health, and Safety
Law.
(v) Disclosure. The representations and warranties contained in this
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Section 3(B) do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 3 not misleading.
Section 4. Remedies for Breaches of This Agreement.
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(a) Survival of Representations and Warranties. All of the
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representations and warranties of the Xxx contained in Sections 3(B)(f) through
(j) and (m) through (v) of this Agreement shall survive the Closing and continue
in full force and effect for a period of one year thereafter. All of the other
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representations and warranties of Viisage and Xxx contained in this Agreement
shall survive the Closing and continue in full force and effect forever
thereafter (subject to any applicable statutes of limitations).
(b) Indemnification Provisions for Benefit of Viisage.
-------------------------------------------------
(i) In the event Xxx breaches any of its representations, warranties,
and covenants contained in this Agreement, and, if there is an applicable
survival period pursuant to Section 4(a) above, provided that Viisage makes
a written claim for indemnification against Xxx within such survival
period, then Xxx agrees to indemnify Viisage from and against the entirety
of any Adverse Consequences Viisage may suffer through and after the date
of the claim for indemnification (including any Adverse Consequences
Viisage may suffer after the end of any applicable survival period)
resulting from, arising out of, relating to, in the nature of, or caused by
the breach (or the alleged breach); provided, however, that Xxx shall not
-----------------
have any obligation to indemnify Viisage from and against any Adverse
Consequences resulting from, arising out of, relating to, in the nature of,
or caused by the breach (or alleged breach) of any representation or
warranty of Xxx contained in Sections 3(B)(f)-(j) and (m)-(v) above until
Viisage has suffered Adverse Consequences by reason of all such breaches
(or alleged breaches) in excess of a $50,000, aggregate threshold (at which
point Xxx will be obligated to indemnify Viisage from and against all such
Adverse Consequences relating back to the first dollar).
13
(ii) Xxx agrees to indemnify Viisage from and against the entirety of
any Adverse Consequences Viisage may suffer resulting from, arising out of,
relating to, in the nature of, or caused by any Liability of Xxx which is
not an Assumed Liability (including any Liability of Xxx that becomes a
Liability of Viisage under any bulk transfer law of any jurisdiction, under
any common law doctrine of de facto merger or successor liability, or
otherwise by operation of law).
(c) Indemnification Provisions for Benefit of Xxx.
---------------------------------------------
(i) In the event Viisage breaches any of its representations,
warranties, and covenants contained in this Agreement, then Viisage agrees
to indemnify Xxx from and against the entirety of any Adverse Consequences
Xxx may suffer through and after the date of the claim for indemnification
resulting from, arising out of, relating to, in the nature of, or caused by
the breach (or the alleged breach).
(ii) Viisage agrees to indemnify Xxx from and against the entirety of
any Adverse Consequences Xxx may suffer resulting from, arising out of,
relating to, in the nature of, or caused by any Assumed Liability.
(d) Matters Involving Third Parties.
-------------------------------
(i) If any third party shall notify any party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against the other party (the
"Indemnifying Party") under this Section 4, then the Indemnified Party
shall promptly notify the Indemnifying Party thereof in writing; provided,
however, that no delay on the part of the Indemnified Party in notifying
the Indemnifying Party shall relieve the Indemnifying Party from any
obligation hereunder unless (and then solely to the extent) the
Indemnifying Party thereby is prejudiced, unless the Third Party Claim
relates to the representations and warranties made by Xxx in Sections
3(B)(f)-(j) and (m)-(v) which must be made within the applicable survival
period.
(ii) The Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notifies the Indemnified Party in writing within 15 days
after the Indemnified Party has given notice of the Third Party Claim that
the Indemnifying Party will indemnify the Indemnified Party from and
against the entirety of any Adverse Consequences the Indemnified Party may
suffer resulting from, arising out of, relating to, in the nature of, or
caused by
14
the Third Party Claim, (B) the Indemnifying Party provides the Indemnified
Party with evidence reasonably acceptable to the Indemnified Party that the
Indemnifying Party will have the financial resources to defend against the
Third Party Claim and fulfill its indemnification obligations hereunder,
(C) the Third Party Claim involves only money damages and does not seek an
injunction or other equitable relief, (D) settlement of, or an adverse
judgment with respect to, the Third Party Claim is not, in the good faith
judgment of the Indemnified Party, likely to establish a precedential
custom or practice materially adverse to the continuing business interests
of the Indemnified Party, and (E) the Indemnifying Party conducts the
defense of the Third Party Claim actively and diligently.
(iii) So long as the Indemnifying Party is conducting the defense of
the Third Party Claim in accordance with Section 4 above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim, (B) the
Indemnified Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the prior
written consent of the Indemnifying Party (not to be withheld
unreasonably), and (C) the Indemnifying Party will not consent to the entry
of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnified Party (not
to be withheld unreasonably).
(iv) In the event any of the conditions in Section 4(d)(ii) above is
or becomes unsatisfied, however, (A) the Indemnified Party may defend
against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party need not consult
with, or obtain any consent from, the Indemnifying Party in connection
therewith), (B) the Indemnifying Party will reimburse the Indemnified Party
promptly and periodically for the costs of defending against the Third
Party Claim (including reasonable attorneys' fees and expenses), and (C)
the Indemnifying Party will remain responsible for any Adverse Consequences
the Indemnified Party may suffer resulting from, arising out of, relating
to, in the nature of, or caused by the Third Party Claim to the fullest
extent provided in this Section 4.
(e) Other Indemnification Provisions. The foregoing indemnification
--------------------------------
provisions are in addition to, and not in derogation of, any statutory,
equitable, or common law remedy either party may have for breach of
representation, warranty, or covenant.
5. Pre-Closing Covenants. The Parties agree as follows with
---------------------
15
respect to the period between the execution of this Agreement and the Closing.
(a) General. Each of the Parties will use its best efforts to take all
-------
action and to do all things necessary, proper, or advisable in order to
consummate and make effective the transactions contemplated by this Agreement
(including satisfaction, but not waiver, of the closing conditions set forth in
(S)7 below).
(b) Consents. Xxx will use its best efforts to obtain any third party
--------
consents that are necessary in order for Viisage to take control of the Subject
Assets.
(c) Preservation of Business. Xxx will cause the Imaging Division to keep
------------------------
its business and properties substantially intact, including its present
operations, physical facilities, working conditions, and relationships with
lessors, licensors, suppliers, customers, and employees.
Section 6 Post-Closing Covenants.
----------------------
The parties agree to the following post-closing covenants:
(a) Consents to Assignment. Notwithstanding Section 2(a) above, at
----------------------
Closing, Xxx shall not be deemed to have transferred or assigned to Viisage any
contract, license, lease or agreement if such transfer or assignment requires
the consent of any party other than Xxx and such consent has not been obtained
as of the Closing Date. Xxx hereby agrees to take all actions reasonably
necessary to obtain any such required consent, and upon the receipt of such
consent, such contract, lease or agreement shall automatically be deemed to have
been assigned and transferred to Viisage as of the Closing Date. Prior to the
receipt of such consent, Xxx shall take all actions necessary to give to Viisage
the benefits of such contract, lease or agreement, and Viisage shall take all
actions necessary to assume and perform all obligations and liabilities of Xxx
in respect thereof.
(b) Certain Employee Benefit Matters. Effective as of the Closing
--------------------------------
Date, Xxx shall cause each of its Employee Benefit Plans to be amended to permit
its adoption by Viisage for the eligible employees of Viisage, with no
interruption or reduction of service, benefits or coverage with respect to any
Viisage employee who was on the payroll of Xxx immediately prior to the Closing
Date. In this connection, with respect to any Employee Benefit Plan to which
the health plan continuation or extension provisions of ERISA Sections 601
through 609 and Internal Revenue Code Section 4980B apply, and until the last
day of the first plan year commencing after the Closing Date, Xxx shall
indemnify and hold harmless Viisage from any Adverse Consequences arising out of
or in connection with Xxx'x non-compliance with such ERISA or Code
16
provisions, and regulations thereunder, for any period prior to the Closing
Date. Immediately as of the Closing Date, the Board of Directors of Viisage
shall cause each such Employee Benefit Plan of Xxx to be adopted for the benefit
of all eligible employees of Viisage, with no interruption or reduction of
service, benefits or coverage with respect to any Viisage employee who was on
the payroll of Xxx immediately prior to the Closing Date. Viisage, its agents
and employees, shall cooperate with Xxx, its agents and employees in Xxx'x
performance of its duties as Administrator (as defined in Section 3(16) of
ERISA) of the respective Employee Benefit Plan. After the Closing Date, any
such Employee Benefit Plan adopted by Viisage may be amended or terminated by
Viisage with respect to the employees covered under the respective plan,
provided that the consent of Xxx pursuant to the written resolution, or
certificate thereof, of Xxx'x Board of Directors or the duly authorized
committee thereof shall be required if such amendment or termination is to occur
prior to the end of the first full plan year following the Closing Date.
(c) Generally. In case at any time after the Closing Date 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 and the
transfer of any additional assets and/or liabilities) as the other party
reasonably may request. Xxx acknowledges and agrees that from and after the
Closing Date Viisage will be entitled to possession of all documents, books,
records (including Tax records), agreements, and financial data of any sort
relating to the Imaging Division. Viisage acknowledges and agrees that from and
after the Closing Date Xxx will have access to all documents, books, records,
agreements and financial data of Viisage which is necessary to enable Xxx to
file its Tax Returns for the period prior to the Closing Date.
(d) Litigation Support. In the event and for so long as either party
------------------
actively is contesting or defending against any action, suit, proceeding,
hearing, investigation, charge, complaint, claim, or demand in connection with
(i) any transaction contemplated under this Agreement or (ii) 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 Imaging Division the other party will
cooperate with the contesting or defending party and its counsel in the contest
or defense, make available its personnel, and provide such testimony and access
to its 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 Section 4 above).
(e) Transition. Xxx will not take any action that is
----------
17
designed or intended to have the effect of discouraging any licensor, customer,
supplier, or other business associate of the Imaging Division from maintaining
the same business relationships with Viisage after the Closing Date as it
maintained with the Imaging Division prior to the Closing Date. Xxx will refer
all customer inquiries relating to the business of the Imaging Division to
Viisage from and after the Closing Date.
(f) Confidentiality. Xxx will treat and hold as such all of the
---------------
Confidential Information, refrain from using any of the Confidential Information
except in connection with this Agreement, and deliver promptly to Viisage or
destroy, at the request and option of Viisage, all tangible embodiments (and all
copies) of the Confidential Information which are in its possession. In the
event that Xxx is requested or required (by oral question or request for
information or documents in any legal proceeding, interrogatory, subpoena, civil
investigative demand, or similar process) to disclose any Confidential
Information, Xxx will notify Viisage promptly of the request or requirement so
that Viisage may seek an appropriate protective order or waive compliance with
the provisions of this Section 6(f). If, in the absence of a protective order or
the receipt of a waiver hereunder, Xxx is, on the advice of counsel, compelled
to disclose any Confidential Information to any tribunal or else stand liable
for contempt, Xxx may disclose the Confidential Information to the tribunal;
provided, however, that Xxx shall use its reasonable efforts to obtain, at the
reasonable request of Viisage, an order or other assurance that confidential
treatment will be accorded to such portion of the Confidential Information
required to be disclosed as Viisage shall designate. This Section 6(f) shall
not restrict Xxx from engaging in any business or activity relating to the
Access Control Field.
(g) Covenants Not to Compete. For a period of ten years from and
------------------------ ---------
after the Closing Date, (i) Xxx will not directly or indirectly enter into
competition with Viisage in the historic business of the Imaging Division;
provided that this restriction shall not extend to the Access Control Field; and
-------------
(ii) Viisage will not directly or indirectly enter into competition with Xxx in
the Access Control Field. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this Section 6(g) is invalid
or unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed.
(h) Tax Matters, Tax Returns, Payment of Taxes and Refunds
------------------------------------------------------
18
(i) Filings. Xxx will prepare and file, or cause to be prepared and
-------
filed, at Xxx'x expense, on a timely basis, all Tax Returns of, or which
include, the activities of the Imaging Division, with respect to any taxable
period ending on or prior to the Closing, including any taxable period ending as
of the close of business on the Closing Date (any such period being referred to
herein as a "Pre-Closing Period"). Viisage will prepare and file, or will cause
to be prepared and filed, all Tax Returns for all taxable periods which do not
constitute Pre-Closing Periods ("Post-Closing Periods") relating to Viisage and
will pay, or will cause to pay, all unpaid Taxes of Viisage. If any adjustment
is made to any Tax Return relating to tax matters of the Imaging Division for
any Pre-Closing Period or portion thereof (whether such adjustment is the result
of, or in settlement of, any audit, or other administrative proceeding or
judicial proceeding or the filing of an amended return to reflect the
consequences of any determination made in connection with any such audit or
proceeding or otherwise) and there is a correlative offsetting adjustment
applicable to Viisage for any Post-Closing Period or portion thereof, and the
adjustment is favorable to Viisage for any Post-Closing Period (i.e., there
inures directly or indirectly to Viisage a net tax benefit (i.e., a current or
future reduction of Taxes payable or a refund of prior Taxes paid)) as a result
of any adjustment, the amount of such net Tax benefit shall be treated as an
obligation to Xxx at the time the benefit is received.
(ii) Control of Contest. Each party will have the right, at its own
------------------
expense, to control any audit or determination by any taxing authority, to
initiate any claim for refund or file any amended Tax Return, and to contest,
resolve and defend against any assessment, notice of deficiency, or other
adjustment or proposed adjustment of Taxes for any taxable period for which such
party (or any of its affiliates) is charged with responsibility for filing a Tax
Return under this Agreement; provided, however, that no party will have the
right to agree to any assessment, deficiency, settlement, or other adjustment or
proposed adjustment, or to initiate any claim for refund or file any amended Tax
Return, that would adversely affect the interests of the other party without
such other party's written consent, which consent will not be unreasonably
withheld. Viisage will promptly forward to Xxx all written notifications and
other written communications from any Taxing authority received by Viisage, or
by Xxx relating to any liability for Taxes for any taxable period. The failure
by Viisage to provide any such notice to Xxx within twenty (20) business days of
receipt by Viisage of such notice will relieve Xxx from any obligations with
respect to the subject matter of any notification not so forwarded.
(iii) Cooperation on Return Filings, Examinations and Controversies;
--------------------------------------------------------------
Access to Information. Each party will fully cooperate with the other, in a
---------------------
prompt and timely manner, in connection with the preparation of filing of, and
any inquiry,
19
audit, examination, investigation, dispute or litigation involving, any Tax
Return required to be filed by it. Such cooperation shall include, but not be
limited to, (1) the execution and delivery of any power of attorney or other
necessary document to allow the other party and its advisors to participate on
behalf of the other party and to assume the defense or prosecution, as the case
may be, of any contest described above. Each of Viisage and Xxx will provide
the other, with the right, at reasonable times and upon reasonable notice, to
have access to and to copy and use any records or information and personnel
which may be relevant for the taxable period for which the requesting party is
charged with payment responsibility for Taxes under this Agreement in connection
with the preparation of any Tax Returns, any audit or other examination by any
taxing authority, the filing of any claim for a refund of Tax or for the
allowance of any Tax credit, or any judicial or administrative proceeding
relating to liability for Taxes. The party requesting assistance hereunder will
reimburse the other party for reasonable expenses incurred in providing such
assistance. Any information obtained pursuant to this Section will be held in
strict confidence and will be used solely in connection with the reason for
which it was requested. For a period of seven years from the Closing Date,
neither party will dispose of or destroy any of the business records and files
of the other relating to Taxes in existence on the Closing Date without first
offering to turn over possession thereof to the other party by written notice to
the other party at least 30 days prior to the proposed date of such disposition
or destruction.
Section 7 Covenant to Enter into Other Agreements.
---------------------------------------
Viisage and Xxx covenant and agree to enter into the following agreements
concurrently with the Closing:
(a) The Administration and Services Agreement substantially in the
form of Exhibit C attached hereto pursuant to which Xxx and Viisage agree upon
---------
the various services and facilities which Xxx will continue to provide to
Viisage following the Closing Date and the fee structure for those services; and
(b) The Use and Occupancy Agreement substantially in the form of
Exhibit D attached hereto pursuant to which Viisage will continue to (i) occupy
---------
certain office and manufacturing space located in Xxx'x facilities at 000 Xxxx
Xxxxxx, Xxxxx, Xxxxxxxxxxxxx, (ii) use certain furniture, fixtures and equipment
of Xxx and (iii) receive certain office services from Xxx.
Section 8 Miscellaneous.
-------------
(a) Amendments; No Waiver; Cumulative Remedies; Injunctive Relief.
-------------------------------------------------------------
No amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by Xxx and Viisage. No failure or delay on the
part of either Viisage
20
or Xxx in exercising any right, power or remedy hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy hereunder. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law. Any breach of
this Agreement could cause irreparable damage to the non-breaching party. In
the event of such breach, the non-breaching party shall have, in addition to any
and all remedies of law, the right to seek an injunction, specific performance
or other equitable relief to prevent a violation of this Agreement.
(b) Notices. Notices and other communications provided for herein
-------
shall be in writing and shall be delivered or mailed, certified, return receipt
requested, or sent by facsimile, addressed as follows (or such other address
which is designated by a party):
If to Viisage:
-------------
Viisage Technology, Inc.
000 Xxxx Xxxxxx
Xxxxx, XX 00000
Attention: President
Telecopier: (000) 000-0000
If to Xxx:
---------
Xxx Technologies
000 Xxxx Xxxxxx
Xxxxx, XX 00000
Attention: President
Telecopier: (000) 000-0000
(c) Severability. The invalidity or unenforceability of any
------------
provision hereof shall in no way affect the validity or enforceability of any
other provision.
(d) Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of The Commonwealth of Massachusetts,
without regard to the choice of law principles thereunder.
(e) Bulk Sales. Viisage hereby waives compliance by Xxx with the
----------
provisions of any so-called bulk transfer law in connection with the assignment
and transfer of the Subject Assets to Viisage.
(f) Assignment. Neither this Agreement nor any of the rights or
----------
obligations hereunder may be assigned by either party without the prior written
consent of the other party. Subject to the foregoing, this Agreement shall be
binding upon and inure to
21
the benefit of the parties hereto and their respective successors and assigns,
and no other person shall have any right, benefit or obligation hereunder.
(g) Incorporation of Exhibits. The Exhibits identified in this
-------------------------
Agreement are incorporated herein by reference and made a part hereof.
(h) Counterparts. This Agreement may be executed in several
------------
counterparts, and all counterparts so executed shall constitute one agreement,
binding on the parties hereto, notwithstanding that the parties are not
signatory to the same counterpart.
IN WITNESS WHEREOF, Viisage Technology, Inc. and Xxx Acquisition Corp.
d/b/a Xxx Technologies have caused this Agreement to be duly executed under seal
by their duly authorized officers as of the date first above written.
VIISAGE TECHNOLOGY, INC.
("VIISAGE")
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Title: President
XXX ACQUISITION CORP.
d/b/a XXX TECHNOLOGIES
("XXX")
By: /s/ Xxxxxx X. Xxx
-----------------
Title: President
22
SCHEDULES TO ASSET TRANSFER AGREEMENT
Exhibit A-1: Confirmation of Asset Contribution
Exhibit A-2: Assignment of Trademarks
Exhibit A-3: Assignments of Contracts
Exhibit B: Financial Statements
(i) Comparative financial statements of the Imaging Division as
of December 31, 1994 and December 31, 1995
(ii) Financial statements of the Imaging Division as of June 30,
1996.
Exhibit C: Administration and Services Agreement
Exhibit D: Use and Occupancy Agreement
23
EXHIBIT A-1
CONFIRMATION OF ASSET CONTRIBUTION
WHEREAS, XXX ACQUISITION CORP., a corporation organized pursuant to the
laws of Massachusetts doing business as XXX TECHNOLOGIES ("Xxx"), and VIISAGE
TECHNOLOGY, INC., a corporation organized pursuant to the laws of Delaware
("Viisage"), are the parties to an Asset Transfer Agreement to become effective
on the date hereof (the "Asset Transfer Agreement");
NOW, THEREFORE, Xxx, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, pursuant to Section 351 of the
Internal Revenue Code of 1986, as amended, by this instrument does contribute,
assign, transfer, set over and convey to Viisage, its successors and assigns,
all of that personal property, tangible or intangible, included within the
Subject Assets as defined in the Asset Transfer Agreement;
TO HAVE AND TO HOLD said property unto Viisage, its successors and assigns,
to and for its own use forever. Xxx hereby irrevocably constitutes and appoints
Viisage, its successors and assigns, the true and lawful attorneys for Xxx to do
all such acts and things in relation thereto that Xxx might have done; and Xxx
further agrees from time to time, at the written request of Viisage, its
successors and assigns, to execute such further separate instruments as Viisage
shall deem desirable for the better assuring, assigning and confirming to
Viisage, its successors and assigns, of the property hereby contributed.
Neither the making nor the acceptance of the within assignment and transfer
shall constitute a waiver or release by Xxx or Viisage of any liabilities,
duties or obligations imposed upon either of them by the terms of the Asset
Transfer Agreement, including, without limitation, the representations and
warranties or other provisions which the Asset Transfer Agreement provides shall
survive the date hereof.
IN WITNESS WHEREOF, Xxx has executed this instrument under seal on the
______ day of __________, 199__.
XXX ACQUISITION CORP.
d/b/a XXX TECHNOLOGIES
By:_______________________
24
EXHIBIT A-2
ASSIGNMENT OF TRADEMARKS
ASSIGNMENT OF TRADEMARKS dated this ___ day of _________, 199__, by XXX
ACQUISITION CORP., a corporation organized pursuant to the laws of Massachusetts
doing business as XXX TECHNOLOGIES ("Assignor"), to VIISAGE TECHNOLOGY, INC., a
corporation organized pursuant to the laws of Delaware ("Assignee").
WHEREAS, Assignor and Assignee are parties to an Asset Transfer Agreement
to become effective on the date hereof (the "Asset Transfer Agreement")
providing, among other things, that Assignor transfer to Assignee certain
assets, properties and rights owned by Assignor, on the terms and conditions set
forth in the Asset Transfer Agreement; and
WHEREAS, Assignor has adopted and used, and is using the trademark which is
the subject hereof, and is the owner of such trademark;
NOW, THEREFORE, for the sum of Ten Dollars and other good and valuable
consideration, the receipt of which is hereby acknowledged, Assignor hereby
sells, assigns, transfers and sets over to Assignee, its successors and assigns,
all of Assignor's right, title and interest in and to the names, service marks
and trademarks "Viisage," "Viisage Technology," "SensorMast," "Visual Inspection
Systems," "Electronic Facial Identification Systems," and all other names,
trademarks, and service marks of the Imaging Division, including all variations
thereof and all drawings, logos and/or artistic renderings incorporating such
xxxx or any variation thereof, and including as well any registration and/or
application for registration thereof with the United States Patent and Trademark
Office or any other jurisdiction, together with the goodwill of the business
symbolized by such names and marks and each such variation thereof and the right
to xxx and recover damages, profits, and other compensation for any and all
causes of action that may have accrued to Assignor up to and including the date
hereof in connection with any infringement, including past infringement, of the
said names and marks or any variation thereof.
Assignor hereby irrevocably appoints Assignee, its successors and assigns,
as true and lawful attorney of Assignor to execute such further documents and
instruments, and do such other acts and things as may be necessary or
appropriate to effectuate the intentions hereof.
Assignor agrees to execute all such instruments and take all such actions
as Assignee, being advised by counsel, shall reasonably request to secure to
Assignee, its successors and assigns the rights herein assigned.
25
Assignor hereby requests the Commissioner of Patents and Trademarks of the
United States of America, or any official of any jurisdiction whose duty it is
to issue trademark registrations, to issue the Certificate of Registration for
any registration resulting from the trademark and/or variations thereof
contemplated in this instrument to the Assignee, its successors or assigns, in
accordance with the terms of this instrument.
Assignor hereby covenants that it has full right to convey the entire
interest herein assigned, and that it has not executed, and will not execute,
any agreements inconsistent herewith.
IN WITNESS WHEREOF, Assignor has caused this instrument to be executed
under seal as of the date first above written.
XXX ACQUISITION CORP.
d/b/a XXX TECHNOLOGIES
By:______________________
COMMONWEALTH OF MASSACHUSETTS )
) .ss
COUNTY OF SUFFOLK )
On the _________ day of ____________, 199__, before me personally came
________________, known to me to be the ___________ of Xxx Acquisition Corp.
d/b/a Xxx Technologies, who executed the above instrument on behalf of the said
corporation and acknowledged to me that the said corporation executed the same.
_______________________________
Notary Public
26
EXHIBIT A-3
ASSIGNMENT OF CONTRACTS
ASSIGNMENT OF CONTRACTS dated as of this ___ day of __________, 199__, by
XXX ACQUISITION CORP., a corporation organized pursuant to the laws of
Massachusetts doing business as XXX TECHNOLOGIES ("Xxx"), to VIISAGE TECHNOLOGY,
INC., a corporation organized pursuant to the laws of Delaware ("Viisage").
WHEREAS, Xxx and Viisage are parties to an Asset Transfer Agreement to
become effective on the date hereof (the "Asset Transfer Agreement") providing,
among other things, that Xxx transfer to Viisage certain assets, properties and
rights owned by Xxx, on the terms and conditions set forth in the Asset Transfer
Agreement.
NOW, THEREFORE, Xxx hereby assigns and transfers to Viisage, its successors
and assigns, the entire right, title and interest in and to the agreements
listed on Schedule 1 hereto (the "Assigned Contracts"), and Viisage hereby
accepts such assignment and assumes performance of obligations arising
thereunder after the effective date hereof, subject to and in accordance with
the terms of the Asset Transfer Agreement.
IN WITNESS WHEREOF, this instrument has been executed under seal as of the
date first above written.
XXX ACQUISITION CORP.
d/b/a XXX TECHNOLOGIES
By:___________________________
VIISAGE TECHNOLOGY, INC.
By:___________________________
27
Schedule to Exhibit A-3
XXX/VIISAGE
-----------
Material Contracts Being Assigned to & Assumed by Viisage
---------------------------------------------------------
A. Existing Customer Contracts
---------------------------
1. Massachusetts RMV
2. Ohio BMV
3. Arizona DOT
4. New York DSS
5. Connecticut DSS
6. Warner Bros.
7. Ohio Prisons
8. Auburn Police
9. ISI (INS)
10. Massachusetts DTA
11. North Carolina DMV
12. Connecticut DPS/Pistol Permits
13. Jamaica/TRW
14. First National of Southern Africa Limited
B. Supplier Contracts
------------------
VAR or special pricing arrangements or service
agreements with the following vendors:
1. Hewlett Packard (VAR through Hallmark Computer)
2. Compaq (VAR through Merisel)
3. DEC (VAR through Hallark)
4. Merisel (Pricing Arrangement based on Sales Volume)
5. Memorex Telex (Service Agreement for Ohio & Az)
6. Praxis (Service Agreement for MA DTA)
7. IBM (VAR through Merisel)
8. Memotec (Service Agreement)
9. SMS (Service Agreement)
10. Toppan (Volume Pricing Agreement)
11. DataCard (Volume Pricing for Eqpt & Consumables)
C. Additional Contracts
--------------------
1. Letter Agreement dated February 23, 1996 between Xxx'x Viisage
Technology Division and Sanwa Business Credit Corporation
2. Agreement of Indemnity (for the Provision of Performance Bonds) dated
December 1993
28
DISCLOSURE SCHEDULE TO ASSET TRANSFER AGREEMENT
Assumed Liabilities
-------------------
(a) Obligations under equipment lease financing agreement with Sanwa Bank.
3(B)(c) -- Noncontravention
----------------
(a) Any consent which may be required under Amended and Restated Loan and
Security Agreement between Xxx and The First National Bank of Boston dated as of
August 3, 1995.
3(B)(g) -- Subsequent Events
-----------------
(ii) Letter of intent with Sanwa Bank for equipment lease financing dated
as of February 23, 1996.
(xiii) Employment agreements dated as of February 1, 1996 with Xxxxxx X.
Xxxxxx, Xxxx Xxxxxx, and Xxxxxxx X. Xxxxxxxx. Xxx also entered into stock
option arrangements, subject to the consummation of the transactions
contemplated in this Asset Transfer Agreement, relating to Viisage with Xxxxx
Xxxxxxx, Xxxxxxx X'Xxx, Xxxxxx Xxxxxxx, Xxxx Xxxxx and Xxxx Xxxxx as of February
1, 1996 and with Xxxxxx Xxxxxxx as of May 15, 1996.
3(B)(j) -- Legal Compliance
----------------
Xxx received a letter dated as of April 10, 1996 from an attorney
representing Xxxx Data Software Corp. alleging that Xxx may be infringing U.S.
Patent No. 5,505,494 and two additional pending patents which relate to a system
for producing a personal identification card. A copy of this letter has been
furnished to Viisage.
3(B)(k) -- Tax Matters
-----------
Xxx has filed an extension for the filing of its 1995 federal and state
income tax returns. Xxx'x 1991 and 1992 federal tax returns are under IRS
audit. Xxx'x Arizona payroll tax for 1995 is under audit.
3(B)(m) -- Material Contracts
------------------
See attached schedule.
3(B)(p) -- Insurance Policies
------------------
Copies provided to Viisage by Xxxx Xxxxxxxxxx.
3(B)(s) -- Employee Benefit Plans
----------------------
Xxx 401(k) plan.
Cafeteria plan.
