ASSET PURCHASE AGREEMENT BETWEEN ENTEGREAT SOLUTIONS, LLC AND TECHNOLOGY SOLUTIONS COMPANY Effective as of April 30, 2008
Exhibit 10.1
BETWEEN
ENTEGREAT SOLUTIONS, LLC
AND
Effective as of April 30, 2008
TABLE OF CONTENTS
ARTICLE I. PURCHASE AND SALE OF ASSETS |
1 | |||
Section 1.1 Conveyance and Transfer of Assets |
1 | |||
Section 1.2 Assumption of Liabilities and Obligations |
2 | |||
Section 1.3 Prorations |
3 | |||
Section 1.4 Purchase Price |
3 | |||
Section 1.5 Payment of Cash Purchase Price |
3 | |||
Section 1.6 Purchase Price Adjustments |
4 | |||
Section 1.7 Allocation of Purchase Price |
6 | |||
ARTICLE II. THE CLOSING |
6 | |||
Section 2.1 Date and Place |
6 | |||
Section 2.2 Delivery of Documents |
6 | |||
ARTICLE III. RELATED TRANSACTIONS |
6 | |||
Section 3.1 Employment Agreements |
6 | |||
Section 3.2 Transition Services Agreement |
7 | |||
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER |
7 | |||
Section 4.1 Corporate Organization |
7 | |||
Section 4.2 Corporate Authority; Authorization of Agreement |
7 | |||
Section 4.3 No Violation |
7 | |||
Section 4.4 Financial Statements |
7 | |||
Section 4.5 No Undisclosed Liabilities |
8 | |||
Section 4.6 Absence of Changes |
8 | |||
Section 4.7 Title to Properties; Encumbrances |
9 | |||
Section 4.8 Sufficiency of Assets |
9 | |||
Section 4.9 Real Property |
9 | |||
Section 4.10 Leases |
10 | |||
Section 4.11 Condition of Tangible Assets |
10 | |||
Section 4.12 Accounts Receivable |
10 | |||
Section 4.13 Intellectual Property Matters |
10 | |||
Section 4.14 Contracts and Commitments |
11 | |||
Section 4.15 Insurance |
11 | |||
Section 4.16 Compliance with Laws |
11 | |||
Section 4.17 Employment Matters |
12 | |||
Section 4.18 Employee Benefit Plans and Arrangements |
12 | |||
Section 4.19 Litigation |
13 | |||
Section 4.20 Governmental Consents |
13 | |||
Section 4.21 Other Consents |
13 | |||
Section 4.22 Environmental Matters |
13 | |||
Section 4.23 Product and Service Warranty |
14 | |||
Section 4.24 Product and Service Liability |
14 | |||
Section 4.25 Customers, Suppliers and Sales Representatives |
14 | |||
Section 4.26 Guarantees |
14 | |||
Section 4.27 Brokers or Finders |
14 |
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Section 4.28 Taxes |
14 | |||
Section 4.29 Full Disclosure |
15 | |||
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF PURCHASER |
15 | |||
Section 5.1 Organization |
15 | |||
Section 5.2 Authorization |
15 | |||
Section 5.3 No Violation |
15 | |||
Section 5.4 Governmental Consents |
16 | |||
Section 5.5 Other Consents |
16 | |||
Section 5.6 No Brokers |
16 | |||
Section 5.7 Financial Statements |
16 | |||
Section 5.8 Insurance. |
16 | |||
Section 5.9 Compliance With the Law |
17 | |||
Section 5.10 Litigation |
17 | |||
Section 5.11 Full Disclosure |
17 | |||
ARTICLE VI. CERTAIN COVENANTS OF SELLER |
17 | |||
Section 6.1 Satisfaction of Conditions |
17 | |||
ARTICLE VII. CERTAIN COVENANTS OF PURCHASER |
17 | |||
Section 7.1 Satisfaction of Conditions |
17 | |||
ARTICLE VIII. ADDITIONAL COVENANTS AND AGREEMENTS |
18 | |||
Section 8.1 Payment of Taxes and Certain Expenses |
18 | |||
Section 8.2 Noncompetition; Nonsolicitation; Nondisclosure |
19 | |||
Section 8.3 Mail Received After Closing |
19 | |||
Section 8.4 Cooperation and Records Retention |
20 | |||
Section 8.5 Offers of Employment |
20 | |||
Section 8.6 Further Assurances |
20 | |||
ARTICLE IX. CONDITIONS TO THE OBLIGATIONS OF PURCHASER |
20 | |||
Section 9.1 Representations and Warranties True |
20 | |||
Section 9.2 Compliance with this Agreement |
20 | |||
Section 9.3 Documents to be Delivered |
20 | |||
Section 9.4 Consents, Releases and Approvals |
21 | |||
Section 9.5 No Injunctions |
21 | |||
Section 9.6 Material Adverse Changes |
21 | |||
ARTICLE X. CONDITIONS TO THE OBLIGATIONS OF SELLER |
22 | |||
Section 10.1 Representations and Warranties True |
22 | |||
Section 10.2 Compliance with this Agreement |
22 | |||
Section 10.3 Payment of Purchase Price |
22 | |||
Section 10.4 Documents to be Delivered |
22 | |||
Section 10.5 No Injunction |
22 | |||
ARTICLE XI. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION |
22 | |||
Section 11.1 Survival of Representations and Warranties |
23 | |||
Section 11.2 Indemnification by Seller |
23 | |||
Section 11.3 Indemnification by Purchaser |
23 |
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Section 11.4 Limitation on Amount |
23 | |||
Section 11.5 Notice of Claims |
24 | |||
ARTICLE XII. MISCELLANEOUS PROVISIONS |
24 | |||
Section 12.1 Amendment |
26 | |||
Section 12.2 Waiver of Compliance |
26 | |||
Section 12.3 Notices |
26 | |||
Section 12.4 Specific Performance |
27 | |||
Section 12.5 Expenses |
27 | |||
Section 12.6 Severability |
27 | |||
Section 12.7 Assignment |
27 | |||
Section 12.8 Dispute Resolution |
27 | |||
Section 12.9 Governing Law |
28 | |||
Section 12.10 Counterparts |
28 | |||
Section 12.11 Headings |
28 | |||
Section 12.12 Entire Agreement |
28 | |||
Section 12.13 Third Parties |
28 | |||
Section 12.14 Performance Following Closing |
28 | |||
Section 12.15 Certain Definitions |
28 |
iv
THIS ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into effective as of this
30th day of April, 2008 by and between TECHNOLOGY SOLUTIONS COMPANY, a Delaware
corporation (the “Seller”), and ENTEGREAT SOLUTIONS, LLC, a Delaware limited liability company
(“Purchaser”).
WITNESSETH:
WHEREAS, Seller desires to sell to Purchaser substantially all of the assets, certain
liabilities, properties, operations and business relating to its SAP Consulting Practice (the “SAP
Practice”), which is engaged in the business of providing supply chain and business process
management, consulting, and related products and services; and Purchaser desires to purchase from
Seller such assets, liabilities, properties and business, as set forth below and in the attached
schedules, upon the terms and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the respective representations,
warranties, covenants, agreements and conditions contained herein, the parties hereto, intending to
be legally bound, hereby agree as follows:
ARTICLE I.
PURCHASE AND SALE OF ASSETS
Section 1.1 Conveyance and Transfer of Assets Upon the terms and subject to all of the conditions contained herein and the performance by
each of the parties hereto of their respective obligations hereunder, Purchaser hereby agrees to
purchase from Seller, and Seller hereby agrees to sell and deliver to Purchaser at the Closing
(hereinafter defined) the assets of the Seller’s SAP Practice set forth in Schedule 1.1(a) hereto
(the “Assets”); assign the services agreements set forth in Schedule 1.1(b) hereto (the “Services
Agreements’) and transfer other properties of the business which are set forth in this section,
Section 1.1 (i) through (viii); all of which shall constitute “Transferred Assets” as defined in
this Agreement free and clear of all liens, claims, encumbrances, charges, security interests or
restrictions of any type whatsoever (“Encumbrances”), other than the Assumed Liabilities (as
defined in Section 1.2 hereof) to be assumed by Purchaser as set forth in Section 1.2 hereof:
(i) all of the intangible rights and property of the SAP Practice utilized exclusively
in the SAP Practice, including all such trademarks, trade names, service marks, inventions,
patents, patent rights, applications for patents, similar rights, trade secrets, know-how,
processes, product mixes, software, licenses, including software licenses, designs, going
concern value and goodwill, and website content directly related to the SAP Practice;
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(ii) all marketing studies, customer lists, files, supplier files, sales agent and
manufacturers’ representatives’ files, credit files, credit data, appraisals, valuations,
and consulting studies used by the SAP Practice and all other records and reports used
exclusively by the SAP Practice and all computers, computer programs, computer software,
computer manuals, flowcharts, printouts, data files, program documentation and related
materials and copies used exclusively by the SAP Practice, excluding any like items
previously mentioned, which are used to run the daily operations of Seller’s other
businesses;
(iii) all deposits (other than income tax deposits) and the appropriate amount of all
expenses and deferred charges that have been prepaid or paid in advance by Seller prior to
the Closing that directly relate to the SAP Practice (“Pre-Paid Obligations”);
(iv) all accounts receivable of the SAP Practice, other than those excluded pursuant to
Section 1.6 hereof (the “Accounts Receivable”);
(v) all of Seller’s right, title and interest in and to all contracts, licenses and
agreements of Seller relating to the SAP Practice that are transferable, including personal
property leases, all contracts and agreements with customers and suppliers of Seller
relating to the SAP Practice entered into in the ordinary course of business, including open
orders) (the “Contracts”), including those described on Schedules 4.10 and 4.14 hereto;
(vi) all stationery and other printed material, office supplies, catalogs and
circulars, telephone, telecopy and email addresses and listings directly related to the SAP
Practice, and the right to receive mail and other communications and shipments of
merchandise addressed to the SAP Practice;
(vii) all files, records and documentation relating to the SAP Practice; and
(viii) all of Seller’s right, title and interest in and to all of the SAP Practice’s
service agreements, maintenance agreements and express and implied warranties of third
parties that continue in effect after the Closing.
Section 1.2 Assumption of Liabilities and Obligations
(a) As of the Closing Date and subject to the limitations set forth in this Section and
Section 1.3 below, Purchaser shall assume and pay, discharge and perform all of the liabilities set
forth in Schedule 1.2(a) hereto (the “Assumed Liabilities”) which shall include the following:
(i) all obligations and liabilities of Seller under any service agreements and other
Contracts, relating to the time period after the Closing (the “Assumed Contract
Liabilities”);
(ii) the SAP Current Liabilities (as defined in Section 1.6); and
(iii) those obligations and liabilities specifically set forth in Schedule 1.2(a)
hereto.
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(b) Except for the Assumed Liabilities, Purchaser shall not assume or otherwise agree to pay,
discharge or perform any other liabilities or obligations of Seller in respect of the SAP Practice
of Seller (whether accrued, absolute, contingent or otherwise, whether or not disputed, or whether
or not disclosed to Purchaser), and the Transferred Assets shall be transferred, assigned and
conveyed to Purchaser free and clear of all Encumbrances (other than the Assumed Liabilities).
(c) Seller shall remain responsible for the payment of those liabilities and obligations of
Seller which relate to the SAP Practice other than Assumed Liabilities.
(d) Except as set forth in Schedule 1.2(d), Purchaser shall assume all warranty claims other
than warranty claims for work performed and completed prior to Closing. Purchaser shall provide
services on behalf of Seller with respect to any such warranty claims made for work performed and
completed prior to Closing and in such event Seller shall pay Purchaser at Purchaser’s standard
warranty rates for any such services;
Section 1.3 Prorations Except as otherwise specifically provided in this Agreement, real and personal property taxes
and assessments levied against the Transferred Assets, property and equipment rentals, and similar
prepaid and deferred items shall be prorated between Purchaser and Seller in accordance with the
principle that Seller shall be responsible for such liabilities allocable to the conduct of the SAP
Practice for the period prior to the Closing, and Purchaser shall be responsible only for such
liabilities allocable to the conduct of the Business by Purchaser following the Closing. Seller
and Purchaser shall deliver a statement setting forth such prorations at the time of making any
such proration payment. Any prorations will, insofar as feasible, be determined and paid on the
Closing Date, with final settlement and payment by the appropriate party occurring no later than 30
days after the actual amount becomes known.
Section 1.4 Purchase Price. Subject to the terms and conditions hereof, in consideration of the sale, transfer, conveyance,
assignment and delivery of the Transferred Assets and for the rights to receive and rely upon the
representations, warranties, covenants and agreements of Seller, the Purchaser (x) shall pay Five
Million One Hundred Twenty One Thousand Three Hundred and Twenty Six and No/100 Dollars
($5,121,326) to be adjusted in accordance with the terms of Section 1.6 hereof (the “Cash Purchase
Price”) and (y) shall assume the Assumed Liabilities (the “Purchase Price”).
Section 1.5 Payment of Cash Purchase Price. The Cash Purchase Price payable at Closing shall be paid in the following manner:
(a) At the Closing, Purchaser shall pay to Seller an amount equal to the Estimated Cash
Purchase Price (as defined in Section 1.6 below) minus Seven Hundred Fifty Thousand Dollars
($750,000) by wire transfer of immediately available funds to an account designated by Seller in
writing prior to Closing; and
(b) At the Closing, Purchaser shall execute a promissory note in form attached hereto as
EXHIBIT A (the “Promissory Note”) evidencing Purchaser’s subordinated obligation to pay Seven
Hundred Fifty Thousand Dollars ($750,000) to Seller under the terms thereof.
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Section 1.6 Purchase Price Adjustments
(a) For purposes of this Agreement, “Price Adjustment Amount” means the amount (which may be
positive or negative) by which the Net Working Capital exceeds Two Million One Hundred Twenty One
Thousand and Three Hundred and Twenty Six Dollars ($2,121,326), the calculation of which is
reflected on Schedule 1.6 hereto (the “Target Working Capital”). “Net Working Capital” means the
amount by which (i) the aggregate book value of all Current Assets of the SAP Practice included in
the Transferred Assets, net of applicable returns and allowances, determined in accordance with
generally accepted accounting principles consistently applied (“GAAP”) (the “SAP Practice Current
Assets”), exceeds (ii) the aggregate book value of all Current Liabilities included in the Assumed
Liabilities, determined in accordance with GAAP (the “SAP Current Liabilities”). “Current Assets”
shall mean the Accounts Receivable, Inventory and Pre-Paid Obligations of the SAP Practice and
included in the Transferred Assets. Current Liabilities shall mean the accounts payable, accrued
expenses including billable and non-billable expenses, and commissions of the SAP Practice and
related equipment leases expenses that are pursuant to Contracts of the SAP Practice.
(b) Seller shall deliver to Purchaser not less than three (3) days prior to the Closing an
unaudited statement of Working Capital (the “Estimated Closing Date Working Capital Statement”)
setting forth the estimated Working Capital of the SAP Practice as of the close of business on a
date which is not more than three (3) business days prior to the Closing Date (the “Estimated
Closing Date Working Capital”). If the Estimated Closing Date Working Capital, as shown on the
Estimated Closing Date Working Capital Statement, is greater than Two Million One Hundred Twenty
One Thousand and Three Hundred and Twenty Six Dollars ($2,121,326), which is the amount of the
Target Working Capital, then the Cash Purchase Price shall be increased on a dollar-by-dollar basis
by an amount equal to the amount which such Estimated Closing Date Working Capital is greater than
the Target Working Capital. If the Estimated Closing Date Working Capital, as shown on the
Estimated Closing Date Working Capital Statement, is less than the Target Working Capital, then the
Cash Purchase Price shall be reduced on a dollar-by-dollar basis by an amount equal to the amount
by which such Estimated Closing Date Working Capital is less than the Target Working Capital. The
adjustment amount shall be the Price Adjustment Amount and the Cash Purchase Price as so adjusted
by such amount shall be the Estimated Cash Purchase Price.
(c) As promptly as practicable after the Closing Date (but in no event later than thirty (30)
days after the Closing Date), Seller, in consultation with Purchaser, will prepare and deliver to
Purchaser a statement of Working Capital (the “Preliminary Closing Date Working Capital Statement”)
setting forth the Working Capital of the SAP Practice as of the close of business on the day
immediately preceding the Closing Date prepared in accordance with GAAP.
(d) If Purchaser agrees with the Preliminary Closing Date Working Capital Statement, then the
Preliminary Closing Date Working Capital Statement shall be deemed to be the Final Closing Date
Working Capital Statement (as defined in this Section 1.6(d)). If Purchaser does not agree with
the Preliminary Closing Date Working Capital Statement, Purchaser will deliver to Seller a
statement describing the basis for any such claim within 30 days after receiving the Preliminary
Closing Date Working Capital Statement. If Purchaser does not deliver such a statement, Purchaser
shall be deemed to have agreed to the Preliminary
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Closing Date Working Capital Statement. Purchaser and Seller will in good faith attempt to
resolve any disputes themselves within ten business (10) days of Seller receiving Purchaser’s
notice. If, however, Purchaser and Seller are unable to resolve all such disputes within such
period, Purchaser and Seller agree that a mutually acceptable, national accounting firm will be
selected to render an acconting interpretation, and such interpretation will be conclusive and
binding relative to the Working Capital Statement. The interpretation of the accounting firm shall
be set forth in writing and delivered to Purchaser and Seller no later than ninety (90) days after
the Closing Date and will be conclusive and binding upon Purchaser and Seller.. The term “Final
Closing Date Working Capital Statement” means the Preliminary Closing Date Working Capital
Statement, together with any revisions thereto pursuant to this Section 1.6(d) and the term
“Closing Date Working Capital” means the Working Capital of Seller as of the close of business on
the day immediately preceding the Closing Date as set forth on the Final Closing Date Working
Capital Statement.
(e) In the event the parties submit any unresolved objections to arbitration for resolution as
provided in Section 1.6(d), each of Purchaser and Seller will bear one-half of the fees and expense
of the arbitrator.
(f) Purchaser and Seller will make the work papers and backup materials used in preparing the
Preliminary Closing Date Working Capital Statement available to the other and its accountants and
other representatives at reasonable times and upon reasonable notice at any time during (i) the
preparation of the Preliminary Closing Date Working Capital Statement, (ii) the review of the
Preliminary Closing Date Working Capital Statement, and (iii) the resolution by Purchaser and
Seller of any objections thereto.
(g) If the Closing Date Working Capital, as shown on the Final Closing Date Working Capital
Statement, differs in amount from the Estimated Closing Date Working Capital, as shown on the
Estimated Closing Date Working Capital Statement, then any reduction or increase to the Cash
Purchase Price pursuant to Section 1.6(b) hereof shall be recalculated as if the Closing Date
Working Capital shown on the Final Closing Date Working Capital Statement had been used in
determining such reduction or increase. If the Cash Purchase Price determined pursuant to such
recalculation exceeds the Cash Purchase Price determined at the Closing, then Purchaser shall,
within three (3) business days after final determination of the Closing Date Working Capital, pay
to Seller, in cash or immediately available funds, the amount by which the Cash Purchase Price
determined pursuant to such recalculation exceeds the Cash Purchase Price determined at the
Closing. If the Cash Purchase Price determined pursuant to such recalculation is less than the
Cash Purchase Price determined at the Closing, then the amount by which the Purchase Price
determined at the Closing exceeds the Cash Purchase Price determined pursuant to such recalculation
shall be deducted from the amount owed the Seller pursuant to the Promissory Note.
(h) In addition to the above Price Adjustment Amount, in the event any Accounts Receivable in
excess of the amounts reflected as reserved in the Net Working Capital Statement for uncollectible
accounts remaining outstanding 120 days following the Closing, such Accounts Receivable shall be
deducted from the Purchase Price and assigned by the Purchaser back to Seller, with Seller promptly
paying Purchaser the amount of such accounts receivables so returned. Prior to assigning such
Account Receivables back to Seller, Purchaser shall use
5
commercially reasonable efforts in accordance with recognized commercial and accounting
procedures and practices to collect such Account Receivables; provided however that Purchaser shall
have no obligation to file suit or take other legal action to collect such Account Receivables. If
in its attempt to collect such Account Receivables Purchaser is offered an amount less than the
full amount due as payment in full, Purchaser must first obtain the written approval of Seller
before accepting less than full value.
Section 1.7 Allocation of Purchase Price The parties agree that the Purchase Price shall be allocated among the Transferred Assets as
determined by Purchaser in accordance with Section 1060 of the Internal Revenue Code of 1986, as
amended (the “Code”) and the regulations thereunder. Purchaser and Seller shall prepare and submit
Internal Revenue Form 8594 prepared in accordance with such allocation and this Section 1.7, and
Seller and Purchaser shall file all tax returns consistent with this Section 1.7. A tentative
allocation is attached hereto as Schedule 1.7, subject to adjustment pursuant to Section 1.6.
ARTICLE II.
THE CLOSING
Section 2.1 Date and Place The closing of the transaction contemplated hereby (the “Closing”) shall take place effective
as of April 30, 2008, at the offices of Xxxxx & Xxxxxxx LLP in Birmingham, Alabama, or at such
other time and place as the parties mutually agree. The transactions contemplated by this
Agreement shall be deemed to be effective for all purposes as of 12:01 a.m. on the Effective Date.
Section 2.2 Delivery of Documents
(a) At Closing, Seller shall execute and deliver to Purchaser such assignments, bills of sale
and any other instruments of transfer necessary to convey to or perfect in Purchaser all of
Seller’s right, title and interest in and to the Transferred Assets.
(b) At Closing, Seller shall deliver to Purchaser those other items specified in Section 9.3
and Purchaser shall deliver to Seller those items specified in Section 10.4.
ARTICLE III.
RELATED TRANSACTIONS
Section 3.1 Employment Agreements At Closing, Purchaser and each of Xxxx Xxxxxx, Xxxx Xxxxxx and Xxxxx Xxxxxxx shall execute and
deliver an Employment Agreement substantially in the form attached hereto as Exhibit B (the
“Employment Agreement”) and a Resignation and Release Agreement in the form attached here as
Exhibit C (the “Releases”).
6
Section 3.2 Transition Services Agreement. At Closing Purchaser shall execute and deliver a Transition Services Agreement substantially
in the form attached hereto as Exhibit D (the “Transition Services Agreement”)
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents, warrants and covenants to Purchaser that:
Section 4.1 Corporate Organization Seller is a corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware; Seller has full power and authority to carry on its business as it is now
being conducted and to own the properties and assets it now owns; and Seller is duly licensed and
qualified to do business in any state or other jurisdiction or any foreign country or subdivision
thereof where the nature of the SAP Practice or the character and location of any properties and
assets owned or leased by the Seller for the SAP Practice make such qualification necessary (each
of which are set forth in Schedule 4.1), except where the failure to so qualify could not
reasonably be expected to have a material adverse effect on the SAP Practice or the Transferred
Assets.
Section 4.2 Corporate Authority; Authorization of Agreement Seller has all requisite power and authority to execute and deliver this Agreement, to
consummate the transactions contemplated hereby, and to perform all the terms and conditions hereof
to be performed by it. The execution and delivery of this Agreement, the performance of all the
terms and conditions hereof to be performed by Seller, and the consummation of the transactions
contemplated hereby have been duly authorized and approved by the Seller. This Agreement has been
duly executed and delivered by Seller and constitutes the valid and binding obligation of Seller
enforceable against it in accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency or other laws relating to or affecting the enforcement of creditors’
rights generally and general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 4.3 No Violation Except as set forth in Schedule 4.3, neither the execution and delivery of this Agreement nor
the consummation of the transactions contemplated hereby will: (a) conflict with or violate any
provision of the Certificate of Incorporation or Bylaws of Seller; (b) violate, conflict with,
constitute a default (or an event which, with or without notice, lapse of time or both, or the
occurrence of any other event, would constitute a default) under, result in the termination of,
accelerate the performance required by, cause the acceleration of the maturity of any debt or
obligation pursuant to, or result in the creation or imposition of any security interest, lien or
other encumbrance upon any of the Transferred Assets under any agreement or commitment to which
Seller is a party or by which Seller is bound, or to which the Transferred Assets are subject; or
(c) violate any federal, state or local law or any judgment, decree, order, regulation or rule of
any court or governmental authority.
Section 4.4 Financial Statements Seller has delivered to Purchaser true and complete copies of unaudited, relevant financial
information including cash flows, profit and loss statements and
7
other pro-forma financial information (together the “Financial Statements”) for the respective
accounting periods of the SAP Practice as of March 31, 2008, December 31, 2007, and December 31,
2006 all of which have been prepared in accordance with GAAP in each case subject to year end
adjustment. Such Financial Statements present fairly the financial position (assets, liabilities
(whether accrued, absolute, contingent or otherwise)) of the SAP Practice at the dates indicated
and present fairly the results of the operations and cash flows of the SAP Practice for the periods
indicated in accordance with GAAP in each case subject to year end adjustment.
Section 4.5 No Undisclosed Liabilities Seller has no material liabilities or obligations of any nature (whether absolute, accrued,
contingent or otherwise, and whether due or to become due) relating to the SAP Practice, the
Transferred Assets or otherwise that are not fully reflected or reserved against in the Interim
Financial Statements of Seller, except for (a) liabilities and obligations identified in Schedule
4.5 and (b) liabilities and obligations incurred in the ordinary course of business and consistent
with past business practice since the date of the Interim Financial Statements.
Section 4.6 Absence of Changes Except as set forth in Schedule 4.6 hereto, since December 31, 2007, the Seller has conducted
the SAP Practice in all material respects only in the ordinary course, including employee
terminations for cost reduction and performance reasons, and during such period there has been no:
(i) transactions by the SAP Practice or affecting the SAP Practice except in the
ordinary course of business that individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect on the SAP Practice;
(ii) destruction of, damage to, or loss of any of the assets to be included in the
Transferred Assets (whether or not covered by insurance) that could reasonably be expected
to have a Material Adverse Effect;
(iii) sale or transfer of any material asset which would otherwise be included in the
Transferred Assets except in the ordinary course of business;
(iv) amendment or termination of any material contract, agreement or license to which
Seller is a party in connection with the operation of the SAP Practice except for such
normal closure of service engagements with customers and suppliers;
(v) waiver of any right of material value with respect to the Transferred Assets;
(vi) mortgage, pledge or other encumbrance of any of the Transferred Assets;
(vii) waiver or release of any Transferred Asset, except in the ordinary course of
business;
(viii) any capital expenditure by the SAP Practice (or series of related capital
expenditures) involving more than $10,000 in the aggregate;
8
(ix) creation, incurrence, assumption, or guarantee by Seller of any indebtedness of
the SAP Practice, other than those included in the Assumed Liabilities impacting, affecting
or that could form an Encumbrance on the Transferred Assets;
(x) delay or postponement by Seller, beyond its normal practice, of the payment of
accounts payable and other liabilities of the SAP Practice which are being assumed by the
Purchaser and Seller has not instituted any unusual or accelerated collection efforts with
respect to its accounts receivable;
(xi) loan made by Seller to, or any other transaction with, any of the SAP Practice’s
officers, and employees which could give rise to any claim or right on Seller’s part against
any such person, or on the part of any such person against Seller, which exceeds $1,000,
other than reflected on the financial statements of Seller;
(xii) new employment contract or collective bargaining agreement involving the SAP
Practice or any of its employees, whether written or oral, or the substantial modification
of the terms of any existing such contract or agreement (other than wage or salary increases
in the ordinary course of business);
(xiii) change in employment terms for any of the SAP Practice’s officers, or employees
(other than wage or salary increases in the ordinary course of business); or
(xiv) other event or condition of any character that has or might reasonably have a
material, adverse effect on the financial condition, business, assets or prospects of the
SAP Practice as it is being purchased by the Purchaser.
Section 4.7 Title to Properties; Encumbrances Except as set forth on Schedule 4.7, Seller has complete and unrestricted power and authority
and the unqualified right to sell, transfer, convey, assign, and deliver to Purchaser, and upon
consummation of the transactions contemplated by this Agreement, Purchaser will acquire good, valid
and marketable title to, all the Transferred Assets, free and clear of all title defects or other
Encumbrances, including, without limitation, leases, chattel mortgages, pledges, conditional sales
contracts, collateral security arrangements and other title or interest retention arrangements.
The bills of sale, deeds, assignments and other instruments to be executed and delivered to
Purchaser by Seller at the Closing will be valid and binding obligations of Seller enforceable in
accordance with their terms, and will vest in Purchaser good, valid and marketable title to all the
Transferred Assets, free and clear of all Encumbrances, including, without limitation, leases,
chattel mortgages, pledges, conditional sales contracts, collateral security arrangements and other
title or interest retention arrangements.
Section 4.8 Sufficiency of Assets The Transferred Assets include all assets, properties and rights currently being used by
Seller in the operation of the SAP Practice, and all assets, properties and rights necessary to
permit Purchaser to conduct the SAP Practice in all material respects in the same manner as Seller
has conducted it to date.
Section 4.9 Real Property The Transferred Assets do not include any interest in real property, neither fee nor
leasehold.
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Section 4.10 Leases Schedule 4.10 contains an accurate and complete list of all leases and subleases pursuant to
which Seller leases personal property used in or relating to the SAP Practice and which are being
assumed by the Purchaser as part of the transaction contemplated hereby. Except as set forth in
Schedule 4.10, all such leases are valid, binding and enforceable in accordance with their terms,
except to the extent that such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to creditors’ rights and remedies
generally, and are in full force and effect; there are no existing defaults by Seller or lessor
thereunder; and no event of default has occurred which (whether with or without notice, lapse of
time or the happening or occurrence of any other event) would constitute a material default
thereunder by any party thereto.
Section 4.11 Condition of Tangible Assets Except as set forth in Schedule 4.11 hereto, all material items of tangible property and
assets which comprise the Transferred Assets contain no material defects and are in good operating
condition and repair, subject to normal routine wear and maintenance, are usable in the regular and
ordinary course of business, and conform in their current condition to all applicable laws,
ordinances, codes, rules and regulations, and authorizations relating to their construction, use
and operation, without any need for capital improvements or other modification or alteration.
Except for leased property identified in Schedule 4.10, no person other than Seller owns any
equipment or other tangible assets or properties necessary to the operation of the Business.
Section 4.12 Accounts Receivable Each of the Accounts Receivables of the SAP Practice included in the Transferred Assets
represents a valid obligation arising from services rendered or products sold in the ordinary
course of business of Seller and was created in compliance with applicable law. Unless paid prior
to Closing, the Accounts Receivables are or will be as of Closing current and collectible net of
the reserves shown on the Interim Balance Sheet. Seller and all of its collection agents have
complied with all laws, rules and regulations with respect to the Accounts Receivables. None of
the Accounts Receivables is subject to any right of offset or reduction and Seller is the sole
beneficial and legal owner of all Accounts Receivables and none have been assigned to collection
agents or otherwise. The Transferred Assets include sufficient records with respect to the
receivables to determine the status of collection efforts and to enforce collection thereof. Any
liabilities arising in connection with the creation of the receivables or the collection by Seller
or its agents of the receivables which arose because of an act of the Seller or its agents prior to
Closing shall remain the liability of Seller.
Section 4.13 Intellectual Property Matters Seller owns trademarks, service marks, trade names, copyrights, inventions, patents, patent
rights, applications for patent rights, similar rights, trade secrets, know-how, processes,
formulas, and designs (“Intellectual Property”) used or relied upon by the SAP Practice in the
conduct of its business and which are included in the Transferred Assets, each of which are
described and set forth with particularity in Schedule 4.13, other than licensed rights to software
identified in such schedule, to which Seller has a valid licensed interest. Seller has the right
to use and holds good and marketable title, free and clear of all Encumbrances, to each of such
items of Intellectual Property described above in this Section 4.13. Seller has no knowledge of the
infringement by any person, firm, associate, partnership or corporation of any such right of
Seller. There is no claim pending or, to Seller’s knowledge, threatened against Seller with
respect to alleged infringement of any trademark, service xxxx, trade name or copyright owned by
any person related to the SAP Practice. No such
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Intellectual Property consisting of trademarks, service marks, trade names and copyrights have been registered
with the United States Patent and Trademark Office or the United States Copyrights Office except as
described on Schedule 4.13, and Seller is currently in compliance with all formal legal
requirements (including the timely post-registration filing of affidavits of use and
incontestability and renewal applications) with respect to such registered Intellectual Property.
Section 4.14 Contracts and Commitments Schedules 1.1(b) and 4.14 list all of the written or oral Contracts which are included in the
Transferred Assets, other than the leases which are identified on Schedule 4.10. The Contracts
include all service agreements, contracts, licenses or commitments which are material to the
business and operations of the SAP Practice, other than the leases identified on Schedule 4.10.
Except as set forth in Schedule 4.14:
(i) All Contracts are valid and in full force and effect, and are transferable and
assignable to Purchaser, which assignment or transfer will not result in any additional cost
or expense on the part of Purchaser;
(ii) Seller is not in material breach or default under or in violation of any Contract;
(iii) Seller is not a party to any written or oral agreement, contract or commitment
with any present or former employee or consultant or for the employment of any person,
including any consultant, who is engaged in the conduct of the SAP Practice;
(iv) Seller is not a party to any written or oral commitment or agreement for any
capital expenditure or leasehold improvement in excess of $10,000 relating to the SAP
Practice, except for such normal operating expenditures of the SAP Practice; and
Seller is not a party to any written or oral agreement, contract or commitment limiting or
restraining the SAP Practice, or any successor thereto from engaging or competing in any manner or
in any business, nor, to Seller’s knowledge, is any employee of the SAP Practice engaged in the
conduct of the SAP Practice subject to any such agreement, contract or commitment.
Section 4.15 Insurance
(a) Seller maintains insurance policies insuring the SAP Practice with financially sound
insurance companies of such types (including, but not limited to, public liability, product and
service liability, worker’s compensation and property damage) and such amounts as are adequate for
the SAP Practice as currently conducted (and as conducted heretofore).
(b) Schedule 4.15 contains (i) an accurate and complete list of all policies of insurance
providing coverage for the SAP Practice, and (ii) a schedule setting forth the aggregate claims and
all individual claims made under each such policy (or any predecessor policy) during the last two
years.
(c) No notice of cancellation (except for those received during renewal periods), termination
or reduction in coverage has been received with respect to any policy listed in Schedule 4.15.
Seller has not been refused any insurance with respect to its assets or operations,
nor has its coverage been limited, by any insurance carrier to which it has applied for any
such insurance or with which it has carried insurance during the last two years that has had or
would reasonable be expected to have a Material Adverse Effect on the SAP Practice.
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Section 4.16 Compliance with Laws Except as set forth in Schedule 4.16:
(i) Seller has conducted the SAP Practice and any other activities in accordance in
all material respects with all applicable laws, rules, regulations, judgments, orders and
other requirements of all courts, administrative agencies, or governmental authorities
having jurisdiction over Seller, including, without limitation, applicable laws, rules,
regulations and requirements relating to antitrust, consumer protection, equal opportunity,
occupational safety and health (OSHA), ERISA, Americans with Disabilities Act, employment,
Environmental Law, clean air, labor, wage and hour, pension, welfare and securities matters;
(ii) Seller has not received within the last two years any notification of any asserted
present or past failure by Seller to comply with such laws, rules or regulations that
relates in any way to the SAP Practice;
(iii) Seller has all licenses, certificates of occupancy, permits and other
governmental authorizations or approvals (collectively, “Licenses”) required for the
operation of the SAP Practice and the current use of the properties of the SAP Practice ,
each of which are described on Schedule 4.16 hereto, and all such Licenses are valid and in
effect; and
(iv) Seller is not materially in violation of any License, and the consummation of the
transactions contemplated by this Agreement will not result in a violation or termination of
any License.
Section 4.17 Employment Matters
(a) Seller is in compliance with all federal, state and local laws, ordinances and regulations
respecting employment practices, terms and conditions of employment and wages and hours and is not
and has not engaged in any unfair labor practice in respect of the operations of the SAP Practice.
Other than as set forth in Schedule 4.17(a), there is no unfair practice complaint against Seller
pending or, to Seller’s knowledge, threatened, in respect of the operations of the SAP Practice.
Seller does not have any contracts, agreements, pension plans, profit sharing plans, bonus plans,
undertakings or arrangements, whether oral, written or implied with lessees, licensees, employees,
managers, accountants, suppliers, agents, officers, distributors, directors, lawyers, or others
relating to the SAP Practice which cannot be terminated on ninety day’s notice other than those
listed in Schedule 4.17(a).
(b) Schedule 4.17(b) hereto contains a list of all employees of the SAP Practice, their wages,
accrued vacation, and other remuneration of every kind.
(c) Seller is not a party to any collective bargaining agreement with any labor union or other
association of employees and, to the best of Seller’s knowledge, no attempt has been
made to organize or certify the employees of Seller as a bargaining unit affecting the SAP
Practice.
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(d) Since January 1, 2005, Seller has not been the subject of any inspection or investigation
relating to its compliance with or violation of the Immigration Reform and Control Act of 1986, and
the rules and regulations promulgated thereunder (the “Immigration Laws”), nor has it been fined or
otherwise penalized by reason of any failure to comply with the Immigration Laws, nor, to the
knowledge of Seller, is any such proceeding pending or threatened all in respect of the SAP
Practice.
Section 4.18 Employee Benefit Plans and Arrangements Schedule 4.18 hereto contains a complete list of all employee benefit plans, whether formal or
informal, whether or not set forth in writing, and whether covering one person or more than one
person, sponsored or maintained by Seller for the benefit of, or covering the SAP Practice and its
employees (“Benefit Plans”). For the purposes hereof, the term “Benefit Plans” includes all plans,
funds, programs, policies, arrangements, practices, customs and understandings in existence as of
the date of the Closing, for providing ongoing or future benefits of economic value to any
employee, former employee, or present or former beneficiary, dependent or assignee of any such
employee or former employee other than regular salary, wages or commissions paid substantially
concurrently with the performance of the services for which paid. Seller hereby represents to
Purchaser that Purchaser shall not assume any obligations under any Benefit Plan of Seller and
shall not incur any liabilities under such Benefit Plan pursuant to applicable law.
Section 4.19 Litigation Except as set forth in Schedule 4.19, there is no action, suit, claim, inquiry, proceeding or
investigation pending or involving or, to the knowledge of Seller, threatened against Seller which
affects the SAP Practice, or the Transferred Assets, or which questions or challenges the validity
of this Agreement or any action taken or to be taken pursuant to this Agreement or in connection
with the transactions contemplated hereby, and Seller has no knowledge or reasonable grounds for
believing that there is any basis for any such action, suit, claim, inquiry, proceeding or
investigation. Seller is not subject to any judgment, order or decree entered in any proceeding or
investigation which may materially affect the SAP Practice. .
Section 4.20 Governmental Consents Except as set forth in Schedule 4.20, no consent, approval or authorization of, notice to, or
declaration, filing or registration with, any governmental or regulatory authority, domestic or
foreign, is required in connection with the execution, delivery and performance of this Agreement
or the consummation of the transactions contemplated hereby.
Section 4.21 Other Consents Except as set forth in Schedule 4.21, no consent, approval or authorization of, or notice to,
any other person or entity, including, without limitation, parties to loans, contracts, leases or
other agreements, is required in connection with the execution, delivery and performance of this
Agreement by Seller or the consummation by it of the transactions contemplated hereby.
Section 4.22 Environmental Matters Seller uses no Hazardous Materials (hereinafter defined) in connection with the conduct of the
SAP Practice.
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Section 4.23 Product and Service Warranty Except as set forth on Schedule 4.23 hereto, each product or service manufactured, sold,
leased, provided or delivered, as the case may be, by the SAP Practice has been in conformity in
all material respects with all applicable commitments and all express and implied warranties. No
product or service manufactured, sold, leased, provided or delivered by the SAP Practice is subject
to any express written guaranty, warranty, or other indemnity which exposes the SAP Practice or
Seller to material liability beyond the standard terms and conditions of sale or lease generally
used by the SAP Practice.
Section 4.24 Product and Service Liability Seller has no knowledge of any facts which they believe could reasonably give rise to any
liability arising out of any death or injury to persons or damage to property as a result of the
ownership, possession, maintenance, or use of any product designed, manufactured, sold, leased, or
delivered by the SAP Practice or as a result of any service provided by the SAP Practice. Seller
has errors and omissions insurance coverage, subject to customary deductions and exclusions as
provided in the policies made available to Purchaser, for error and omission exposure which occur
prior to or on the date of Closing.
Section 4.25 Customers, Suppliers and Sales Representatives Schedule 4.25 hereto sets forth a list of (a) the 10 largest customers of the SAP Practice in
terms of gross sales (and percentages) during the years ended December 31, 2006 and 2007, and
through the date of the Interim Financial Statements, and (b) the 5 largest suppliers to the SAP
Practice during the years ended December 31, 2006 and 2007, and through the date of the Interim
Financial Statements, measured by dollar volume of purchases. Except as set forth in Schedule 4.25
and except for such normal closure of service engagements with customers and suppliers in the SAP
Practice business with such customer or supplier, Seller has received no notice of termination or
an intention to terminate the relationship with the SAP Practice, from any customer with sales
exceeding $15,000 in calendar years 2006 and 2007 or any supplier during such period.
Section 4.26 Guarantees Except as set forth on Schedule 4.26, Seller is not a guarantor or indemnitor for any
liability (including indebtedness) of an affiliate or any other person.
Section 4.27 Brokers or Finders Except as set forth in Schedule 4.27, no agent, broker, investment banker or other financial
firm is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee
in connection with the Closing based on arrangements made by or on behalf of Seller.
Section 4.28 Taxes Except as set forth on Schedule 4.28, all federal, state, county and local taxes, including,
without limitation, income, gross receipts, corporate franchise, stamp, transfer, sales and use,
license, severance, excise, employment (including unemployment compensation contributions),
withholding, ad valorem, or any other similar taxes, special charges or levies, together with any
interest, additions or penalties with respect thereto and any interest in respect of such additions
or penalties (“Taxes”) due and payable by Seller with respect to the SAP Practice on or before the
date hereof have been paid (or Seller has provided for), and Seller has filed all tax returns and
reports required to be filed by Seller with all applicable taxing authorities (“Tax Returns”) that
could affect the SAP Practice or the Business or the Transferred Assets. The provisions for Taxes
included in the Interim Financial Statements represent adequate provision for the payment of all
accrued and unpaid Taxes of Seller that could affect the SAP Practice or the Business or the
Transferred Assets, whether or not disputed. Seller has paid (or
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has made provision for the payment of) all Taxes that could form a charge or encumbrance on the
Transferred Assets or the SAP Practice that could become payable by Purchaser as a result of or in
connection with any event relating to Seller occurring before the Closing Date. Seller has no
outstanding or unsatisfied deficiency assessments with respect to any material Taxes, and there are
no current audits or investigations by or disputes with any authority with respect to any Taxes
that may affect Seller or form an Encumbrance on any of the Transferred Assets. Seller has not
received notice that an examination of or proceeding concerning any Tax Return of Seller is pending
or threatened that may affect Seller or form an Encumbrance on any of the Transferred Assets.
Section 4.29 Full Disclosure The representations and warranties of Seller in this Agreement and in the Schedules hereto are
true, complete and correct, and no such representation or warranty contains any untrue statement of
material fact or omits to state any material fact necessary to make the statements made not
misleading.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents, warrants and covenants to Seller as follows:
Section 5.1 Organization Purchaser is a limited liability company duly organized, validly existing and in good standing
under the laws of the State of Delaware.
Section 5.2 Authorization Purchaser has all requisite corporate power and authority to execute and deliver this
Agreement, to consummate the transactions contemplated hereby, and to perform all the terms and
conditions hereof to be performed by it. The execution and delivery of this Agreement, the
performance of all the terms and conditions hereof to be performed by Purchaser, and the
consummation of the transactions contemplated hereby have been duly authorized and approved by the
shareholders of Purchaser. This Agreement has been duly executed and delivered by Purchaser and
constitutes the valid and binding obligation of Purchaser enforceable against it in accordance with
its terms, except as such enforceability may be limited by bankruptcy, insolvency or other laws
relating to or affecting the enforcement of creditors’ rights generally and general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law).
Section 5.3 No Violation Neither the execution and delivery of this Agreement nor the consummation of the transactions
contemplated hereby will (a) violate any provision of the Certificate of Formation or Limited
Liability Company Agreement of Purchaser; (b) violate, conflict with, constitute a default (or an
event which, with or without notice, lapse of time or both, or the occurrence of any other event,
would constitute a default) under, result in the termination of, accelerate the performance
required by, cause the acceleration of the maturity of any debt or obligation pursuant to any
agreement or commitment to which Purchaser is a party or by which Purchaser is bound, or to which
the property of Purchaser is subject, or (c) violate any statute or law or any judgment, decree,
order, regulation or rule of any court or governmental authority.
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Section 5.4 Governmental Consents Except as set forth in Schedule 5.4, no consent, approval or authorization of, notice to, or
declaration, filing or registration with, any governmental or regulatory authority, domestic or
foreign, is required in connection with the execution, delivery and performance of this Agreement
by Purchaser or the consummation of the transactions contemplated hereby by Purchaser.
Section 5.5 Other Consents Except as set forth in Schedule 5.5, no consent, approval or authorization of, or notice to,
any other person or entity, including, without limitation, parties to loans, contracts, leases or
other agreements, is required in connection with the execution, delivery and performance of this
Agreement by Purchaser or the consummation by Purchaser of the transactions contemplated hereby.
Section 5.6 No Brokers No agent, broker, investment banker or other firm or person is or will be entitled to any
broker’s or finder’s fee or any other commission or similar fee in connection with the Closing
based on arrangements made by or on behalf of Purchaser.
Section 5.7 Financial Statements Purchaser has delivered to Seller true and complete copies of its balance sheets and the
related statements of income, and cash flows for the latest year end accounting period, all of
which have been prepared in accordance with GAAP. Such financial statements, including the related
notes, and interim financial statements fairly present the financial position (assets, liabilities
(whether accrued, absolute, contingent or otherwise)) of the Purchaser at the date indicated. Since
that date there have been no material financial changes in the business other than as stated in
Schedule 5.7. Further, Purchaser shall not enter into any agreements of indebtedness, beyond that
necessary to execute this Agreement, materially affecting Purchaser’s ability to fulfill the
obligations of the Promissory Note.
Section 5.8 Insurance.
(a) Purchaser maintains insurance policies insuring Purchaser with financially sound insurance
companies of such types (including, but not limited to, errors and omission, director and officers,
public liability, product and service liability, worker’s compensation and property damage) and for
such amounts in Purchaser’s management’s opinion are sufficient and adequate for the operations of
its business as currently conducted and as will be conducted following the Closing of the
transaction contemplated by this Agreement.
(b) Schedule 5.8 contains (i) an accurate and complete list of all policies of insurance
providing coverage for the Purchaser and the amount of coverage of each policy, and (ii) a schedule
setting forth the aggregate claims and all individual claims made under each such policy (or any
predecessor policy) during the last two years.
(c) No notice of cancellation, termination or reduction in coverage has been received with
respect to any policy listed in Schedule 5.8. Purchaser has not been refused any insurance with
respect to its assets or operations, nor has its coverage been limited, by any insurance carrier to
which it has applied for any such insurance or with which it has carried insurance during the last
two years.
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Section 5.9 Compliance With the Law
(a) Purchaser has conducted its business in accordance in all material respects with all
applicable laws, rules, regulations, judgments, orders and other requirements of all courts,
administrative agencies, or governmental authorities having jurisdiction over Purchaser, including,
without limitation, applicable laws, rules, regulations and requirements relating to antitrust,
consumer protection, equal opportunity, occupational safety and health (OSHA), ERISA, Americans
with Disabilities Act, employment, labor, wage and hour, pension, welfare and securities matters;
(b) Purchaser has not received within the last two years any notification of any asserted
present or past failure by Purchaser to comply with such laws, rules or regulations that relates in
any way to its business.
Section 5.10 Litigation Except as set forth in Schedule 5.10, there is no action, suit, claim, inquiry, proceeding or
investigation pending or involving or, to the knowledge of Purchaser, threatened against Purchaser
which affects Purchaser’s business, or which questions or challenges or could question or challenge
the validity of this Agreement or any action taken or to be taken pursuant to this Agreement or in
connection with the transactions contemplated hereby, and Purchaser has no knowledge or reasonable
grounds for believing that there is any basis for any such action, suit, claim, inquiry, proceeding
or, to Purchaser’s knowledge, investigation. Purchaser is not subject to any judgment, order or
decree entered in any proceeding or investigation which may materially adversely affect its
business as being conducted or as will be conducted following the Closing of the transactions
contemplated by this Agreement.
Section 5.11 Full Disclosure The representations and warranties of Purchaser in this Agreement and in the Schedules hereto
are true, complete and correct, and no such representation or warranty contains any untrue
statement of material fact or omits to state any material fact necessary to make the statements
made not misleading.
ARTICLE VI.
CERTAIN COVENANTS OF SELLER
CERTAIN COVENANTS OF SELLER
Seller hereby covenants to and agrees with Purchaser as follows:
Section 6.1 Satisfaction of Conditions Seller shall use reasonable good faith efforts to satisfy or cause the satisfaction of the
conditions specified in Article IX hereof.
ARTICLE VII.
CERTAIN COVENANTS OF PURCHASER
Purchaser hereby covenants to and agrees with Seller as follows:
Section 7.1 Satisfaction of Conditions Purchaser shall use reasonable good faith efforts to satisfy or cause the satisfaction of the
conditions specified in Article X hereof.
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ARTICLE VIII.
ADDITIONAL COVENANTS AND AGREEMENTS
Section 8.1 Payment of Taxes and Certain Expenses
(a) Purchaser shall pay any sales, use, recording costs or similar fees payable in connection
with the conveyance of the Transferred Assets contemplated by this Agreement.
(b) Except as otherwise explicitly provided herein, whether or not the transactions
contemplated by this Agreement are consummated, each of the parties hereto shall pay its own
expenses and costs, including legal and accounting fees, incurred by it in connection with the
negotiation, execution and performance of this Agreement.
Section 8.2 Noncompetition; Nonsolicitation; Nondisclosure
(a) Seller agrees that for a period of three (3) years after the date of Closing, neither it
nor any of its affiliated entities will, directly or indirectly, (i) own, manage, operate, join,
control or participate in the ownership, management, operation or control of, or render service to,
any business, whether in corporate, proprietorship or partnership form or otherwise, which is
competitive with the SAP Practice within the “Restricted Territory” (defined below); (ii) either
for its own benefit or for the benefit or purposes of any other person or entity, solicit, call on,
interfere with, attempt to divert, entice away or accept any business from any person or entity who
is a customer of the SAP Practice or who was a customer of the SAP Practice within the two (2)
years preceding the date of Closing; or (iii) take any action that may cause Purchaser to lose any
of its officers, employees, agents, customers or suppliers or any of its business relationships;
provided that nothing herein shall be construed to prevent Seller from purchasing or otherwise
acquiring up to five percent (5%) of the securities of any enterprise if such securities are listed
on any national or regional securities exchange. For purposes of this Section 5.3(a), “Restricted
Territory” means the geographic area encompassing the United States and any other country in which
Seller has distributed or sold SAP Practice products or services within two (2) years preceding the
date of the Closing.
(b) Each Party agrees that for a period of two (2) years after the date of Closing neither it
nor any of their affiliated entities will, with the intent of securing any business from the
customers described in this Section 8.2(b) that materially competes with the other Party’s primary
business, directly or indirectly, either for its own benefit or for the benefit or purposes of any
other person or entity, solicit, call on, interfere with, attempt to divert, entice away or accept
any competitive business from any person or entity who is a customer of the other Party or who was
a customer of the other Party within the two (2) years preceding the date of Closing; or take any
action that may cause the other Party to lose any of its officers, employees, agents, customers or
suppliers or any of its business relationships.
(c) From and after the date of Closing, Seller will not, directly or indirectly, disclose to
any other party or in any way utilize for itself or any other party any information, data,
proprietary information, intellectual property, trade secrets, customer lists, subscriber lists,
pricing information or any other proprietary information purchased pursuant to this Agreement,
used in the operation of the SAP Practice, or otherwise relating to it.
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(d) The parties hereto specifically acknowledge and agree that the remedy at law for any
breach of the foregoing will be inadequate and that Purchaser, in addition to any other relief
available to it, shall be entitled to temporary and permanent injunctive relief without the
necessity of proving actual damage.
(e) In the event that the provisions of this Section 8.2 should ever be deemed to exceed the
limitation provided by applicable law, then the parties hereto agree that such provisions shall be
reformed to set forth the maximum limitations permitted.
Section 8.3 Mail Received After Closing Following the Closing, Purchaser may receive and open all mail or other communications
addressed to Seller relating to the SAP Practice and deal with the contents thereof in its
discretion to the extent that such mail relates to the SAP Practice; provided that (a) Purchaser
shall have no right to deal with the contents of any other such material which relates to the
business of Seller not being purchased and/or assumed by Purchaser under this Agreement, and (b)
Purchaser shall promptly notify Seller as to the receipt thereof and make appropriate arrangements
to deliver such materials promptly to Seller.
Section 8.4 Cooperation and Records Retention
(a) Purchaser and Seller shall in a timely manner (i) each provide the other with such
assistance as may reasonably be requested by any of them in connection with the preparation of any
return, audit or other examination by any taxing authority or judicial or administrative proceeding
relating to liability for taxes, (ii) each retain and provide the other any records or other
information that may be relevant to such return, audit or examination, proceeding, or
determination, and (iii) each provide the other with any final determination of any such audit or
examination proceeding, or determination that affects any amount required to be shown on any return
of the other for any period. Without limiting the generality of the foregoing, Seller and
Purchaser shall retain, until the applicable statutes of limitations (including any extensions)
have expired, but in no event later than the seventh anniversary of the date of Closing, copies of
all returns, supporting work schedules, and other records or information that may be relevant to
such returns for all tax periods or portions thereof ending before or including the date of Closing
and shall not destroy or otherwise dispose of any such records, prior to such periods, without
first providing the other party with a reasonable opportunity to review and copy the same.
(b) Purchaser agrees that for a period of two (2) year from the date of Closing, it will
maintain Seller’s books, records, manuals, ledgers and other documentation used or maintained in
the operation of the SAP Practice which are being transferred to Purchaser pursuant to this
Agreement and, during such period, will afford to Seller and its authorized representatives, at
Seller’s sole expense, risk and cost and upon reasonable notice to Purchaser, reasonable access
during normal business hours and under Purchaser’s supervision, to such books, records, etc. on
Purchaser’s premises, to the extent that such access and disclosure would not unreasonably
interfere with the normal operation of the business of Purchaser or violate the terms of any
agreement to which Purchaser is bound or any applicable laws or regulations. Thereafter, in the
event Purchaser chooses not to keep such books and records, it will give Seller reasonable
opportunity to take delivery of such books and records.
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Section 8.5 Offers of Employment After the Closing, Purchaser may, in its sole discretion, make an offer of employment to any
or all of the employees of the SAP Practice. Nothing in this section shall be deemed to guarantee
a right of employment to any particular individual or upon any specific terms or conditions of
employment. Seller agrees to terminate all employment contracts with employees of the SAP Practice
that are to be hired by Purchaser after the SAP Practice has been notified that the employee has
accepted Purchaser’s offer of employment pursuant to the terms thereof.
Section 8.6 Further Assurances After the Closing, each of Seller and Purchaser will from time to time, at the request of the
other and without further cost or expense to requesting party, execute, acknowledge, deliver and
perform such other instruments of conveyance and transfer, and take such other actions as the other
party may reasonably request, to implement the transactions contemplated hereby and to vest in
Purchaser good and marketable title to the Transferred Assets (including, without limitation,
assistance in the collection or reduction to possession of any of such Transferred Assets).
ARTICLE IX.
CONDITIONS TO THE OBLIGATIONS OF PURCHASER
All obligations of Purchaser under this Agreement are subject to the fulfillment or
satisfaction, prior to or at the Closing, of each of the following conditions precedent:
Section 9.1 Representations and Warranties True The representations and warranties of Seller contained in this Agreement and the Schedules
hereto shall be true and accurate in all material respects as of the date hereof and as of Closing.
Section 9.2 Compliance with this Agreement Seller shall have performed and complied with all agreements and conditions required by this
Agreement to be performed or complied with by it prior to or at the Closing.
Section 9.3 Documents to be Delivered
(a) At or prior to Closing, Purchaser shall have received from Seller:
(i) a certificate of Seller, dated as of the date of Closing, certifying in such detail
as Purchaser may reasonably request that the conditions specified in Sections 9.1 and 9.2
hereof have been fulfilled and certifying that Seller has obtained all consents and
approvals required with respect to it, the Business or the transactions contemplated hereby,
including those which are listed on Schedules 4.20 and 4.21 hereof;
(ii) all deeds, bills of sale, assignments and assumptions and other documents of
conveyance, in form and substance satisfactory to Purchaser and its counsel, necessary to
convey the Transferred Assets and assume the Assumed Liabilities;
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(iii) except with respect to the Assumed Liabilities, to the extent any of the
Transferred Assets are encumbered, Seller shall have obtained releases of such encumbrances,
which releases shall be in form and substance acceptable to Purchaser and its counsel; and
(iv) a certificate of Seller, dated as of the date of Closing, certifying as to
resolutions adopted by Seller’s Board of Directors approving of the Agreement and this
transaction, the incumbency of those persons signing on behalf of Seller and the
organization of Seller;
(v) all other previously undelivered items required to be delivered by Seller to
Purchaser at or prior to Closing pursuant to this Agreement or otherwise.
(b) Purchaser shall have received the executed and delivered Employment Agreements of Xxxxx
Xxxxxx, Xxxx Xxxxxx, and Xxxxx Xxxxxxx.
(c) Purchaser shall have received the executed and delivered Transition Services Agreement.
(d) Purchaser shall have received debt or equity financing in the amount of the Cash Purchase
Price minus Seven Hundred Fifty Thousand Dollars ($750,000) on terms satisfactory to Purchaser in
its sole discretion.
(e) Purchaser shall have received acceptable written evidence of termination of all employment
contracts with employees that Purchaser has offered employment to and who have notified Purchaser
that they will be accepting their offer of employment.
(f) Purchaser shall have received evidence confirming that Seller’s SAP A-1 certification has
been or will be transferred and assigned to Purchaser, or alternatively, written evidence
confirming SAP’s intent to enter into such similar agreement with Purchaser.
Section 9.4 Consents, Releases and Approvals The holders of any indebtedness of Seller, the lessors or lessees of any real or personal
property or assets leased by Seller, the parties (other than Seller) to any contract, commitment or
agreement to which Seller is a party or subject, and any governmental, judicial or regulatory
official, body or authority having jurisdiction over Seller or Purchaser to the extent that their
consent or approval is required or necessary under the pertinent debt, lease, contract, commitment
or agreement or other document or instrument or under applicable orders, laws, rules or
regulations, for the consummation of the transactions contemplated hereby in the manner herein
provided, shall have granted such consent or approval, including those which are listed on
Schedules 4.20 and 4.21 hereof.
Section 9.5 No Injunctions There shall be no effective injunction, writ, preliminary restraining order or any order of
any nature issued by a court of competent jurisdiction prohibiting or imposing any condition on the
consummation of any of the transactions contemplated hereby.
Section 9.6 Material Adverse Changes The business, operations, assets, properties or prospects of the Business shall not have been
and shall not be threatened to be materially
adversely affected in any way as a result of any event or occurrence after the date of this
Agreement.
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ARTICLE X.
CONDITIONS TO THE OBLIGATIONS OF SELLER
All obligations of Seller under this Agreement are subject to the fulfillment or satisfaction,
prior to or at the Closing, of each of the following conditions precedent:
Section 10.1 Representations and Warranties True The representations and warranties of Purchaser contained in this Agreement shall be true and
accurate in all material respects as of the date hereof and as of Closing.
Section 10.2 Compliance with this Agreement Purchaser shall have performed and complied with all agreements and conditions required by
this Agreement to be performed or complied with by it prior to or at the Closing.
Section 10.3 Payment of Purchase Price Purchaser shall pay the Purchase Price in accordance to the terms of Section 1.5 including a
Promissory Note identical to the one set forth as Exhibit A or, if different, which has been
approved by Seller at least three days before the Closing.
Section 10.4 Documents to be Delivered At or prior to Closing, Seller shall have received from Purchaser:
(i) a certificate of Purchaser, dated as of the date of Closing, certifying in such
detail as Seller may reasonably request that the conditions specified in Sections 10.1, 10.2
and 10.3 hereof have been fulfilled and certifying that Purchaser has obtained all consents
and approvals required with respect to the transactions contemplated hereby which are listed
on Schedules 5.4 and 5.5 hereof;
(ii) a certificate of Purchaser, dated as of the date of Closing, certifying: that the
Agreement has been adopted pursuant to the Company’s Operating Agreement; the resolutions
adopted by Purchaser’s members approving of the Agreement and this transaction; the
incumbency of those persons signing on behalf of Purchaser and the organization of
Purchaser; and
(iii) all other previously undelivered items required to be delivered by Purchaser at
or prior to Closing pursuant to this Agreement or otherwise.
(iv) a Promissory Note which satisfies Section 1.5 and Section 10.3 hereof.
Section 10.5 No Injunction There shall be no effective injunction, writ, preliminary restraining order or any order of
any nature issued by a court of competent jurisdiction prohibiting or imposing any condition on the
consummation of any of the transactions contemplated hereby.
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ARTICLE XI.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
Section 11.1 Survival of Representations and Warranties All representations and warranties made by the parties in this Agreement or in any
certificate, schedule, statement, document or instrument furnished hereunder or in connection with
the negotiation, execution and performance of this Agreement shall survive the Closing for a period
of three (3) years, except that any representation or warranty relating to fraud, title to the
Transferred Assets, environmental matters and Environmental Laws or taxes shall extend until the
expiration of the applicable statute of limitations. Notwithstanding any investigation or audit
conducted before or after the date of Closing or the decision of any party to complete the Closing,
each party shall be entitled to rely upon the representations and warranties set forth herein and
therein.
Section 11.2 Indemnification by Seller From and after the Closing, Seller jointly and severally, will reimburse, indemnify and hold
harmless Purchaser and its successors, assigns, shareholders, officers, directors, employees or
agents (the “Indemnified Purchaser Parties”) against and in respect of:
(i) any and all damages, losses, deficiencies, liabilities, costs and expenses incurred
or suffered by the Indemnified Purchaser Parties that result from, relate to or arise out
of:
(A) any and all liabilities and obligations of Seller of any nature whatsoever,
except for the Assumed Liabilities;
(B) any and all actions, suits, claims, or legal, administrative, arbitration,
governmental or other proceedings or investigations against any Indemnified
Purchaser Parties or any affiliate of Purchaser that relate to Seller or the
Business in which the principal event giving rise thereto occurred prior to the date
of Closing or which result from or arise out of any action or inaction occurring
prior to the date of Closing of Seller by any director, officer, employee, agent,
representative or subcontractor of Seller, including without limitation those
matters set forth on Schedule 4.19, but not including the Assumed Liabilities; or
(C) any misrepresentations, breach of warranty or nonfulfillment of any
agreement or covenant on the part of Seller under this Agreement, or from any
misrepresentation in or omission from any certificate, schedule, statement, document
or instrument furnished to Purchaser pursuant hereto or in connection with the
negotiation, execution or performance of this Agreement; and
(ii) any and all actions, suits, claims, proceedings, investigations, demands,
assessments, audits, fines, judgments, costs and other expenses (including, without
limitation, reasonable legal fees and expenses) incident to any of the foregoing or to the
enforcement of this Section 11.2.
Section 11.3 Indemnification by Purchaser From and after the Closing, Purchaser will reimburse, indemnify and hold harmless Seller and
its successors, assigns, officers, directors,
employees and agents and their heirs and representatives (the “Indemnified Seller Parties”) against
and in respect of:
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(i) any and all damages, losses, deficiencies, liabilities, costs and expenses incurred
or suffered by the Indemnified Seller Parties that result from, relate to or arise out of:
(A) any and all obligations of the Purchaser of any nature whatsoever,
including the Assumed Liabilities;
(B) any and all actions, suits, claims, or legal, administrative,
arbitration, governmental or other proceedings or investigations against any
of the indemnified Seller Parties that relate to Purchaser in which the
principal event giving rise thereto occurred on or after the date of Closing
or which result from or arise out of any action or inaction on or after the
date of Closing of Purchaser by any director, officer, employee, agent,
representative or subcontractor of Purchaser; or
(C) any misrepresentation, breach of warranty or nonfulfillment of any
agreement or covenant on the part of Purchaser under this Agreement, or from
any misrepresentation in or omission from any certificate, schedule,
statement, document or instrument furnished to Seller pursuant hereto or in
connection with the negotiation, execution or performance of this Agreement;
and
(ii) any and all actions, suits, claims, proceedings, investigations, demands,
assessments, audits, fines, judgments, costs and other expenses (including, without
limitation, reasonable legal fees and expenses) incident to any of the foregoing or to the
enforcement of this Section 11.3.
Section 11.4 Limitation on Amount
(a) In no event shall Seller be liable for aggregate amounts for which indemnification is
claimed by Purchaser in accordance with Section 11.2 (including attorneys fees) of more than the
Purchase Price.
(b) In no event shall Purchaser be liable for aggregate amounts for which indemnification is
claimed by Seller in accordance with Section 11.3 (including attorneys fees) of more than the
Purchase Price.
Section 11.5 Notice of Claims
(a) Claims by Third Parties Promptly after receipt by an indemnified party of written
notice of the commencement of any investigation, claim, proceeding or other action in respect of
which indemnity may be sought from the indemnitor under either Section 11.2 or 11.3 (each, an
“Action”), such indemnified party shall immediately notify the indemnitor in writing of the
commencement of such Action; but the omission to so notify the indemnitor shall not relieve it from
any liability that it may otherwise have to such indemnified party, except to the extent that
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the indemnitor is materially prejudiced or forfeits substantive rights or defenses as a result
of such failure. In connection with any Action in which the indemnitor and any indemnified party
are parties, the indemnitor shall be entitled to participate therein, and may assume the defense
thereof. Notwithstanding the assumption of the defense of any such Action by the indemnitor, each
indemnified party shall have the right to employ separate counsel and to participate in the defense
of such Action, and the indemnitor shall bear the reasonable fees, costs and expenses of such
separate counsel to such indemnified party if: (i) the indemnitor shall have agreed to the
retention of such separate counsel, (ii) the defendants in, or target of, any such Action include
more than one indemnified party or both an indemnified party and the indemnitor shall have
concluded that representation of such indemnified party by the same counsel would be inappropriate
due to actual or, as reasonably determined by such indemnified party’s counsel, potential differing
interests between them in the conduct of the defense of such Action, or if there may be legal
defenses available to such indemnified party that are different from or additional to those
available to the other indemnified party or to the indemnitor, or (iii) the indemnitor shall have
failed to employ counsel reasonably satisfactory to such indemnified party within a reasonable
period of time after notice of the institution of such Action. If such indemnified party retains
separate counsel in cases other than as described in clauses (i), (ii), or (iii) above, such
counsel shall be retained at the expenses of such indemnified party. Except as provided above, it
is hereby agreed and understood that the indemnitor shall not, in connection with any Action in the
same jurisdiction, be liable for the fees and expenses of more than one counsel for all such
indemnified parties (together with appropriate local counsel). The party from whom indemnification
is sought shall not, without the written consent of the party seeking indemnification (which
consent shall not be unreasonably withheld), settle or compromise any claim or consent to entry of
any judgment that does not include an unconditional release of the party seeking indemnification
from all liabilities with respect to such claim.
(b) Other Claims. In the event one party hereunder should have a claim for
indemnification that does not involve a claim or demand being asserted by a third party, the party
seeking indemnification shall promptly send notice of such claim to the party from whom
indemnification is sought.
(c) Right of Offset Purchaser shall have the right to offset any written claim it may
have received or written claim for which Purchaser has provided notice to Seller for
indemnification hereunder against any amounts due from Purchaser to Seller under this Agreement,
including pursuant to the Promissory Note, provided Purchaser has delivered to Seller evidence of
such written claim and further, has complied with the Dispute Resolution process identified in
Section 12.8. If after complying with such Dispute Resolution process, a determination is made
that such offset was unjustified, Purchaser shall promptly remit any amount so offset, together
with interest as determined pursuant to said Note, to Seller. Notwithstanding the foregoing,
Purchaser may, in good faith, withhold such Promissory Note payment due, if the Dispute Resolution
process is not yet complete.
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ARTICLE XII.
MISCELLANEOUS PROVISIONS
Section 12.1 Amendment This Agreement may be amended only by a written agreement signed by the parties.
Section 12.2 Waiver of Compliance Any waiver of any failure to comply with any obligation, covenant, agreement or condition
under this Agreement must be in writing and signed by the parties. Any waiver or failure to insist
upon strict compliance with any obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other failure.
Section 12.3 Notices All notices, requests, demands and other communications required or permitted hereunder shall
be provided in writing and shall be deemed to have been duly given if delivered by hand or sent by
telefacsimile (with confirmation by telefacsimile answerback) or certified or registered mail, with
postage prepaid:
(i) | If to Seller, to: |
Technology Solutions Company
Attn: Chief Financial Officer
00 X. Xxxxxx Xxxxxx, #0000
Xxxxxxx, XX 00000
Attn: Chief Financial Officer
00 X. Xxxxxx Xxxxxx, #0000
Xxxxxxx, XX 00000
with a copy to:
Technology Solutions Company
Attn: Chief Executive Officer
00 X. Xxxxxx Xxxxxx, #0000
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
00 X. Xxxxxx Xxxxxx, #0000
Xxxxxxx, XX 00000
or to such other person or address as Seller shall furnish to Purchaser in writing.
(ii) | If to Purchaser, to: |
EnteGreat Solutions, LLC
c/o EnteGreat, Inc.
0000 Xxxxxxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxxx
Fax: (000) 000-0000
c/o EnteGreat, Inc.
0000 Xxxxxxxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxx Xxxxxxxx
Fax: (000) 000-0000
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with a copy to:
Xxxxx & Xxxxxxx LLP
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
or to such other person or address as Purchaser shall notify all other parties in writing.
Section 12.4 Specific Performance Each of the parties acknowledges that money damages would not be a sufficient remedy for any
breach of this Agreement and that irreparable harm would result if this Agreement were not
specifically enforced. Therefore, the rights and obligations of the parties under this Agreement
shall be enforceable by a decree of specific performance issued by any court of competent
jurisdiction, and appropriate injunctive relief may be applied for and granted in connection
therewith. A party’s right to specific performance shall be in addition to all other legal or
equitable remedies available to such party.
Section 12.5 Expenses Except as otherwise expressly provided herein, whether or not the transactions contemplated by
this Agreement shall be consummated, all fees and expenses (including all fees of counsel and
accountants) incurred by any party in connection with the negotiation and execution of this
Agreement shall be borne by such party.
Section 12.6 Severability If any one or more provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall be construed as if
such invalid, illegal, or unenforceable provision had never been contained herein.
Section 12.7 Assignment Neither this Agreement nor any of the rights, interests or obligations hereunder may be
assigned by any of the parties hereto without the prior written consent of the other parties. This
Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 12.8 Dispute Resolution
(a) Intent. The parties shall resolve their disputes informally to the maximum extent
possible. The parties shall negotiate all matters of joint concern in good faith, with the
intention of resolving issues between them in a mutually satisfactory manner. Only disputes within
the scope of this Agreement are subject to this Section. The cost of any such dispute resolution,
whether formal or informal, incurred by either party shall be borne by such party.
(b) Informal Resolution. If a dispute arises under this Agreement, then within five (5)
business days after request by either party, the Parties’ executive officer shall promptly confer
to resolve the dispute. If these representatives are unable to resolve the dispute within fourteen
(14) calendar days after the parties have commenced such discussion or thirty (30)
calendar days have passed since the initial request, then the parties may mutually agree to
resolve the issues by Formal Resolution.
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(c) Formal Resolution. Purchaser and Seller agree that the unresolved disputes will be
resolved by an arbitrator selected from the American Arbitration Association (“AAA”) utilizing AAA
rules (including AAA rules for the selection of the arbitrator should the parties fail to agree on
the arbitrator within fifteen (15) days after the ten (10) day period set forth above). The
arbitration session shall occur in Louisville, Kentucky. Statements, discussions, representations
and offers made at the arbitration session shall not be admissible in any later proceeding. The
decision of the arbitrator shall be final and binding upon the parties both as to law and fact.
Section 12.9 Governing Law This Agreement and the legal relations among the parties hereto shall be governed by and
construed in accordance with the laws of the State of Delaware.
Section 12.10 Counterparts This Agreement may be executed simultaneously in two or more counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the same instrument.
Section 12.11 Headings The headings of the Articles and Sections of this Agreement are inserted for convenience only
and shall not constitute a part hereof or affect in any way the meaning or interpretation of this
Agreement.
Section 12.12 Entire Agreement This Agreement, including the Schedules hereto, as well as the other documents and
certificates delivered pursuant hereto set forth the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof, and supersede all prior agreements,
promises, covenants, arrangements, communications, representations or warranties, whether oral or
written, by any officer, employee or representative of any party hereto.
Section 12.13 Third Parties Except as specifically set forth or referred to herein, nothing expressed or implied herein is
intended or shall be construed to confer upon or give to any person or entity other than the
parties hereto, and their successors or permitted assigns, any rights or remedies under or by
reason of this Agreement.
Section 12.14 Performance Following Closing Nothing in this Agreement shall be construed to limit any covenant or agreement of the parties
hereto which by its terms contemplates performance after the Closing.
Section 12.15 Certain Definitions
(a) “Seller’s Knowledge” and similar phrases mean all information actually known by Seller’s
executive officers directly or provided by Seller’s Senior Vice President of Human Resources,
Senior Vice President of the SAP Practice or Senior Vice President of the SAP Practice Operations
after reasonable inquiry by executive officers of such persons.
(b) “Material Adverse Effect” means any change in or effect on the business that, individually
or in the aggregate (taking into account all other such changes or effects), is
materially adverse to the business, assets, liabilities, condition (financial or otherwise) or
results of operations of the business.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered, all as of the day and year first above written.
SELLER: | ||||
TECHNOLOGY SOLUTIONS COMPANY | ||||
By: | ||||
Name: | ||||
Title: | ||||
PURCHASER: | ||||
ENTEGREAT SOLUTIONS, LLC | ||||
By: | ||||
Name: | ||||
Title: | ||||
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