Exhibit 2.1
Asset Purchase Agreement made as of May 15, 2002.
Between: CGI Information Systems & Management Consultants, Inc., a
corporation incorporated under the laws of the State of
Delaware, having its head office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, U.S.A., herein acting and
represented by its duly authorized representative as he so
declares;
(hereinafter referred to as the "Purchaser")
And: Netplex Systems, Inc., a corporation incorporated under the
laws of the State of Delaware, having its head office at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, U.S.A.,
herein acting and represented by its duly authorized
representative as he so declares;
(hereinafter referred to as the "Seller")
Whereas the Seller, through its Retail Practice Division, presently carries on a
business of retail systems consulting based in Edmund, Oklahoma (such business
as presently carried on, the "Purchased Business");
Whereas the Seller desires to sell and the Purchaser desires to purchase the
assets of the Seller pertaining to the Purchased Business upon and subject to
the terms and conditions hereinafter set forth;
Therefore, in consideration of the premises and the covenants and agreements
herein contained, the parties hereto agree as follows:
1. Interpretation
1.1 Definitions
In this Agreement, unless something in the subject matter or
context is inconsistent therewith:
1.1.1 "Accounts Receivable" has the meaning set forth in
Section 2.1.3;
1.1.2 "Agreement" means this agreement and all amendments
made hereto by written agreement between the Purchaser
and the Seller;
1.1.3 "April 26 Statements" means the financial statements
of the Seller in respect of the Purchased Business for
the period ended on April 26, 2002, consisting of the
balance sheet as at April 26, 2002 and the statement
of income for the period ended on April 26, 2002, a
copy of which is attached hereto as Schedule 1.1.3;
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1.1.4 "Assets" has the meaning set forth in Section 2.1;
1.1.5 "Assumed Liabilities" has the meaning set forth in
Section 2.3;
1.1.6 "Business Day" means a day other than a Saturday,
Sunday or statutory holiday in either Montreal
(Quebec), Reston (Virginia) or Oklahoma City
(Oklahoma);
1.1.7 "Claims" has the meaning set forth in Section 8.1;
1.1.8 "Closing Balance Sheet" means the balance sheet
contained in the April 26 Statements;
1.1.9 "Encumbrance" in respect of any property or asset,
means any encumbrance or title defect of whatever kind
or nature, regardless of form, whether or not
registered or registrable and whether or not
consensual or arising by law (statutory or otherwise),
including any mortgage, lien, charge, pledge, title
retention agreement or security interest, whether
fixed or floating, or any assignment, lease, option,
right of pre-emption, privilege, encumbrance,
restrictive covenant, right of use or other right or
claim of any kind or nature whatsoever which affects
ownership of, title to, or the right to possess, use
or occupy, such property or assets or any part thereof
or interest therein; provided, however, Encumbrances
specifically exclude (i) liens for Taxes not yet due
and payable, (ii) liens of landlords, carriers,
warehousemen, mechanics and materialmen incurred in
the Ordinary Course of Business for sums not yet due
and payable, (iii) liens incurred or deposits made in
the Ordinary Course of Business in connection with
workers' compensation, unemployment insurance and
other types of social security, (iv) retention of
title clauses in favor of suppliers in the Ordinary
Course of Business, (v) liens that secure liabilities
or obligations that constitute Assumed Liabilities or
(vi) such defects of title, rights of way, rights of
joint or common use of property, easements,
encumbrances, and other charges on title (such as
those in favor of utilities, landlords and co-tenants)
as do not materially interfere with the Assets to
which they relate;
1.1.10 "End User Licenses" has the meaning set forth in
Section 3.13.1;
1.1.11 "Fixed Assets" has the meaning set forth in Section
2.1.1;
1.1.12 "GAAP" has the meaning set forth in Section 1.5;
1.1.13 "Indemnified Party" has the meaning set forth in
Section 8.3;
1.1.14 "Indemnifying Party" has the meaning set forth in
Section 8.3;
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1.1.15 "Intangible Assets" has the meaning set forth in
Section 2.1.5;
1.1.16 "Intellectual Property Rights" means all foreign and
domestic intellectual property rights used essentially
solely in the Purchased Business, including all
patents, patent applications, patent rights,
trademarks, trademark applications, trade names,
service marks, service ▇▇▇▇ applications, copyrights,
copyright applications, computer programs and other
computer software (including, without limitation, all
source and object code, architecture, structure,
display screens, layouts and development tools),
domain names, inventions, designs, trade secrets,
proprietary processes and formulae, and development
tools, promotional materials, databases, customer
lists, supplier and dealer lists and marketing
research, and all documentation and media
constituting, describing or relating to the foregoing,
including without limitation, manuals, memoranda and
records and the rights to register the foregoing;
1.1.17 "Inventories" has the meaning set forth in Section
2.1.2;
1.1.18 "Knowledge" means the actual knowledge that a prudent
and diligent administrator under such circumstances
has or should have in relation with facts or
circumstances contemplated by the applicable
provisions, it being stipulated that if a director or
executive officer of the relevant party has or should
have such knowledge on a similar basis, said party
shall then be irrevocably deemed to also have such
knowledge;
1.1.19 "Leased Premises" has the meaning set forth in Section
3.8;
1.1.20 "Material Adverse Effect" means any quantifiable
event, occurrence, fact, condition, change or effect
that is significantly and materially adverse to the
operations, results of operations, financial
condition, properties (including intangible
properties), assets (including intangible assets) or
liabilities of the Purchased Business;
1.1.21 "Ordinary Course of Business" means substantially the
same manner in which the Seller has previously carried
on the Purchased Business;
1.1.22 "Prepaid Expenses" has the meaning set forth in
Section 2.1.4;
1.1.23 "Purchase Price" has the meaning set forth in Section
2.2.1;
1.1.24 "Purchased Business" has the meaning set forth in the
recitals to this Agreement;
1.1.25 "Purchaser" means CGI Information Systems & Management
Consultants, Inc., a corporation incorporated under
the laws of the State of Delaware;
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1.1.26 "Seller" means Netplex Systems, Inc., a corporation
incorporated under the laws of the State of Delaware;
1.1.27 "Sublease" has the meaning set forth in Section 3.8;
1.1.28 "Taxes" shall mean any federal, state, local, foreign
and other income, profits, franchise, capital,
withholding, unemployment insurance, social security,
occupational, production, severance, gross receipts,
value added, sales, use, excise, real and personal
property, ad valorem, occupancy, transfer, employment,
disability, workers' compensation or other similar
tax, duty or other governmental charge (including all
interest and penalties thereon and additions thereto);
and
1.1.29 "Third Party Claim" has the meaning set forth in
Section 8.5.1.
1.2 Headings
The division of this Agreement into Sections and the insertion
of headings are for convenience of reference only and shall
not affect the construction or interpretation of this
Agreement. The terms "this Agreement", "hereof", "hereunder"
and similar expressions refer to this Agreement and not to any
particular Section or other portion hereof and include any
amendment hereto. Unless something in the subject matter or
context is inconsistent therewith, references herein to
Sections are to Sections of this Agreement.
1.3 Extended Meanings
In this Agreement, words importing the singular number only
shall include the plural and vice versa, words importing the
masculine gender shall include the feminine and neuter genders
and vice versa and words importing persons shall include
individuals, partnerships, limited liability companies,
associations, trusts, unincorporated organizations and
corporations.
1.4 Statutory References
In this Agreement, unless something in the subject matter or
context is inconsistent therewith or unless otherwise herein
provided, a reference to any statute is to that statute as now
enacted or as the same may from time to time be amended,
re-enacted or replaced and includes any regulations made
thereunder.
1.5 Accounting Principles
Wherever in this Agreement reference is made to a calculation
to be made in accordance with generally accepted accounting
principles ("GAAP"), such reference shall be deemed to be to
the generally accepted accounting principles in the United
States from time to time approved by the Accounting Principles
Board of the American Institute of Certified Public
Accountants, or any successor
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institute, applicable as at the date on which such calculation is
made or required to be made in accordance with generally accepted
accounting principles and applied in a manner consistent with prior
periods of the Seller.
1.6 Currency
All references to currency herein are to lawful money of the United
States of America.
1.7 Schedules
The Schedules annexed hereto and incorporated by reference are
deemed to be part hereof.
2. Purchase And Sale
2.1 Assets to be Sold and Purchased
Upon and subject to the terms and conditions hereof, the Seller
hereby sells to the Purchaser and the Purchaser hereby purchases
from the Seller all of the rights, title and interest of the Seller
in and to the Purchased Business, including, without limitation, in
and to all assets of every kind and description and wheresoever
situated (the "Assets") and essentially solely used in or related to
the conduct of the Purchased Business. Without limiting the
generality of the foregoing, the Purchased Business and the Assets
sold and purchased hereunder include:
2.1.1 all fixed assets used by the Seller essentially
solely in connection with the Purchased Business at
the date hereof including machinery and equipment,
furniture, furnishings, computer hardware and
peripheral equipment, supplies and other
miscellaneous items used by the Seller essentially
solely in connection with the Purchased Business,
including, without limiting the generality of the
foregoing, the assets described in Schedule 2.1.1
(the "Fixed Assets");
2.1.2 all inventories of every kind and nature wherever
situated used by the Seller at the date hereof
essentially solely in connection with the Purchased
Business including, without limiting the generality
of the foregoing, the inventories described in
Schedule 2.1.2 (the "Inventories");
2.1.3 all of the accounts receivable of the Seller relating
essentially solely to the Purchased Business at the
date hereof including, without limiting the
generality of the foregoing, the accounts receivable
described in Schedule 2.1.3 and reimbursements of any
of those accounts receivable (the "Accounts
Receivable");
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2.1.4 all pre-paid expenses and deposits of the Seller at
the date hereof relating essentially solely to the
Purchased Business including all pre-paid taxes and
water rates, all pre-paid purchases of gas, oil and
hydro, all pre-paid lease payments and, without
limiting the generality of the foregoing, the prepaid
expenses described in Schedule 2.1.4 (the "Prepaid
Expenses");
2.1.5 all intangible assets of the Seller at the date
hereof relating essentially solely to the Purchased
Business other than bank account of the Seller (the
"Intangible Assets"), including, without limitation;
2.1.5.1 all records of sales, customers lists and
suppliers lists relating essentially solely
to the Purchased Business;
2.1.5.2 all the rights, title and interest of the
Seller in the agreements entered into by
the Seller relating essentially solely to
the Purchased Business, either with
customers or suppliers or any other party
(other than this Agreement), including
without limiting the generality of the
foregoing, the material agreements
described in Schedule 2.1.5.2;
2.1.5.3 all the rights, title and interest of the
Seller in the equipment leases described in
Schedule 2.1.5.3;
2.1.5.4 all the rights, title and interest of the
Seller, if any, in the Sublease;
2.1.5.5 all rights, title and interest of the
Seller in the unfilled orders received by
the Seller essentially solely in connection
with the Purchased Business and in the
commitments in favour of the Seller for
supplies of goods and services entered into
in the Ordinary Course of Business for use
in the Purchased Business whether or not
there are any written contracts in respect
thereto, including without limiting the
generality of the foregoing, the contract
and commitments described in Schedule
2.1.5.5;
2.1.5.6 all Intellectual Property Rights of the
Seller essentially solely relating to the
Purchased Business;
2.1.5.7 the goodwill of the Seller relating solely
to the Purchased Business;
2.1.5.8 all the rights, title and interest of the
Seller in the licenses, registrations,
permits and quotas required to carry on the
Purchased Business in its Ordinary Course
of Business; and
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2.1.5.9 all the rights title and interest of the
Seller in personnel records, inspection
records and other records, books, documents
and data bases recorded or stored by means
of any device, including in electronic
form, relating to the Purchased Business,
the Assets and those employees who are,
pursuant to the provisions of this
Agreement, to be employed by the Purchaser
as are in the possession or under the
control of the Seller; provided that the
Seller shall be entitled to retain the
originals and will provide to Purchaser
copies in lieu thereof of any such
personnel records, inspection records and
other records, books, documents and data
bases that are necessary for the Seller to
perform Seller's obligations (a) under this
Agreement, (b) under law, or (c) to third
parties (e.g., continuing obligations, if
any, of Seller to employees); and provided
further that, for the avoidance of doubt,
the foregoing, and the Assets generally, do
not include the corporate charter,
qualifications to conduct business as a
foreign corporation, arrangements with
registered agents relating to foreign
qualifications, taxpayer and other
identification numbers, seals, minute
books, stock transfer books, blank stock
certificates, and any other documents,
records or files relating to the
organization, maintenance or existence of
the Seller.
2.2 Purchase Price and Allocation Thereof
2.2.1 The purchase price for the Purchased Business and the Assets
(the "Purchase Price") shall be $4,300,000 payable to the
Seller by wire transfer on the date hereof to the accounts
specified in Schedule 2.2.1 and shall be allocated
substantially in conformance with the value thereof on the
Closing Balance Sheet, it being however understood that the
amount of the excess of the Purchase Price over such values
shall be allocated to goodwill.
2.2.2 The Seller and the Purchaser, in filing their respective
income tax returns, will use the allocations of the Purchase
Price as set forth in Section 2.2.1.
2.3 Obligations and Liabilities Assumed
The Purchaser will assume, fulfill and perform:
2.3.1 all of the obligations and liabilities of the Seller under
the Sublease and the agreements of the Seller relating to
the Purchased Business described in Sections 2.1.5.2 and
2.1.5.3; and
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2.3.2 all other obligations and liabilities of the Seller relating
to the Purchased Business that are set forth on the Closing
Balance Sheet and that are still outstanding on the date
hereof, or which have arisen in the Ordinary Course of
Business in relation to the Purchased Business since April
26, 2002, including the following (the obligations described
in Sections 2.3.1 and 2.3.2 being the "Assumed
Liabilities"):
(i) all accounts payable which have arisen in the
Ordinary Course of Business since April 26, 2002;
(ii) the accrued expenses which have arisen in the
Ordinary Course of Business in relation to the
Purchased Business since April 26, 2002;
(iii) deferred revenues which have arisen in the Ordinary
Course of Business in relation to the Purchased
Business since April 26, 2002; and
(iv) accrued wages which have arisen in the Ordinary
Course of Business in relation to the Purchased
Business since April 26, 2002;
it being understood that no obligations of the Seller with
respect to its line of credit or Taxes related to the
Purchased Business and Assets are assumed by the Purchaser;
Schedule 2.3.2 hereto provides a breakdown of and relevant
details on the accounts payable, accrued expenses, deferred
revenues and accrued wages referred to in this Section 2.3.2
but as at April 26, 2002.
2.4 Obligations and Liabilities Not Assumed
2.4.1 Except as explicitly and specifically provided in Section
2.3, the Purchaser shall not assume and shall not be liable
or responsible for any obligations, commitments or
liabilities, contingent or otherwise, and whether disclosed
or undisclosed (i) related to the Assets or the Purchased
Business whatsoever arising or accruing prior to the date
hereof, or (ii) of the Seller and without limiting the
generality of the foregoing, except as explicitly and
specifically provided in this Agreement, the Purchaser shall
not assume and the Seller shall remain responsible for, and
shall indemnify the Purchaser for, any of the following
liability:
2.4.1.1 any Taxes that may be or become payable by the
Seller resulting from or arising as a consequence
of the sale by the Seller to the Purchaser of the
Purchased Business and the Assets hereunder;
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2.4.1.2 any indebtedness of the Seller to its bankers,
shareholders or any other person; and
2.4.1.3 any Claims arising out of conduct of the Seller
other than in the Ordinary Course of Business,
prior to the date hereof.
2.5 Tax Reporting
Each of the Purchaser and the Seller shall treat and report the
transactions contemplated by this Agreement in all respects
consistently for purposes of any federal, state or local taxation,
including without limitation with respect to calculation of gain,
loss and basis with reference to the allocations of the Purchase
Price made pursuant to Section 2.2.1 hereof. The parties hereto
shall not take any actions or positions inconsistent with the
obligations set forth herein. Each of the Purchaser and the Seller
agrees to file with the Internal Revenue Service an IRS Form 8594
(Asset Acquisition Statement under Section 1060) with respect to the
acquisition by the Purchaser of the Assets, with their respective
federal income tax returns for this year, consistent with the
allocations made pursuant to Section 2.2.1.
3. Seller's Representations And Warranties
Except as otherwise indicated, the Seller represents and warrants to the
Purchaser as follows, it being acknowledged by the Seller that the
Purchaser is relying upon such representations and warranties in purchasing
the Assets.
3.1 Organization
The Seller is duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, with
the full corporate power to own all of the Assets and to carry on
the Purchased Business, and is duly qualified as a corporation to do
business in each jurisdiction in which the Purchased Business is
carried on and the Seller has made all necessary material filings
under all applicable corporate, securities and taxation laws or any
other laws to which the Seller is subject.
3.2 Authority
3.2.1 The Seller has good and sufficient power, authority and
right to enter into and deliver this Agreement and to
perform its obligations hereunder and the Seller has good
and sufficient power, authority and right to transfer the
legal and beneficial title and ownership of the Assets to
the Purchaser as set forth herein free and clear of all
Encumbrances and any other rights of others and all
requisite director, shareholder or other corporate approval
on the part of the Seller have been obtained to permit the
execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
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3.2.2 This Agreement constitutes a valid and legally binding
obligation of the Seller enforceable against the Seller in
accordance with its terms, except that (a) rights to
indemnification may be limited by law (including rules and
regulations promulgated thereunder) or public policy, (b)
such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium (whether general or specific) or
other similar laws now or hereafter in effect relating to
creditors' rights generally and (c) the remedy of specific
performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor
may be brought.
3.2.3 The Seller represents and warrants that there is no
contract, option or any other right of another binding upon,
or which at any time in the future may become binding upon
the Seller to sell, transfer, assign, pledge, charge,
mortgage or in any other way dispose of or encumber any of
the Assets other than pursuant to the provisions of this
Agreement or that would restrain or prevent the consummation
of the transactions contemplated by this Agreement;
provided, however that this representation and warranty is
conditioned upon payment of the Purchase Price on the date
hereof in accordance with Section 2.2.1.
3.2.4.1 Neither the entering into nor the delivery of this
Agreement nor the completion of the transactions
contemplated hereby by the Seller will result in:
3.2.4.1 the violation of any of the provisions of the
charter documents or by-laws of the Seller;
3.2.4.2 the violation of any agreement or other instrument
to which the Seller is a party or by which it is
bound;
3.2.4.3 the violation of any applicable law, rule,
regulation, judgment, order or decree;
3.2.4.4 the creation of any Encumbrance upon the Assets; or
3.2.4.5 a conflict with, breach of or creation of an event
of default (or event that, with the giving of
notice or lapse of time or both, would constitute
an event of default) under, or an event which would
give any party the right to accelerate any
obligation under, any agreement, mortgage, license,
lease, indenture, instrument, order, arbitration
award, judgment or decree to which the Seller is a
party or by which the Seller or the Assets are
bound or affected;
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provided, however, that representations and
warranties set forth in Sections 3.2.4.2, 3.2.4.4
and 3.2.4.5 are conditioned upon payment of the
Purchase Price on the date hereof in accordance
with Section 2.2.1.
3.3 Financial
3.3.1 Except as set forth in Schedules 1.1.3 or 3.3.1, the April
26 Statements (including, without limitation, the Closing
Balance Sheet):
3.3.1.1 are in accordance with the books and accounts of
the Seller as at April 26, 2002;
3.3.1.2 are true, complete (except for the absence of a
statement of cash flows, footnotes and intercompany
charges, credits and allocation) and correct and
present fairly the financial position of the
Purchased Business as at April 26, 2002;
3.3.1.3 have been prepared in accordance with GAAP (except
for the absence of a statement of cash flows,
footnotes and intercompany charges, credits and
allocation);
3.3.1.4 present fairly all of the assets and liabilities of
the Purchased Business as at April 26, 2002
including, without limiting the generality of the
foregoing, all contingent liabilities of the
Purchased Business as at April 26, 2002 to the
extent required by GAAP.
3.3.2 The Accounts Receivable are valid and genuine, have arisen
solely out of bona fide sales and deliveries of goods,
performance of services, and other business transactions
including contract ▇▇▇▇▇▇▇▇ in the Ordinary Course of
Business, and are believed by the Seller to be fully
collectible in the Ordinary Course of Business within 90
days after the applicable date due, except, in the case of
accounts receivable appearing on the Closing Balance Sheet,
to the extent of the reserves for doubtful accounts
reflected thereon. The reserve for doubtful accounts on the
Closing Balance Sheet has been determined in accordance with
GAAP consistent with past practice.
3.4 Tax Matters
The Seller has duly filed with the appropriate government agencies
all tax returns and reports required to be filed by it with respect
to the Purchased Business and the Assets. No waiver of any statute
of limitations relating to Taxes has been executed or given by the
Seller. All Taxes, assessments, fees and other governmental charges
upon the Seller or upon any of its properties, assets, revenues,
income and franchises, that may affect the Purchased Business or the
Assets, and which are owed with respect to any period ending on or
before the
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date of this Agreement have been paid, other than those currently
payable or payable in the future, without penalty or interest. The
Seller has withheld and paid all Taxes required to be withheld or
paid in connection with amounts paid or owing to any employee,
creditor, independent contractor or third party. No federal tax
return of the Seller is currently under audit by the Internal
Revenue Service, and no other tax return of the Seller is currently
under audit by any other taxing authority. Neither the Internal
Revenue Service nor any other taxing authority is now asserting or
to the Seller's Knowledge threatening to assert against the Seller
any deficiency or claim for additional Taxes or interest thereon or
penalties in connection therewith or any adjustment that would have
an adverse effect on the Purchased Business or the Assets.
3.5 Absence of Changes
3.5.1 Since April 26, 2002:
3.5.1.1 there has been no change in the business,
operations or condition of the Purchased Business,
financial or otherwise, whether arising as a result
of any legislative or regulatory change, revocation
of any license or right to do business, fire,
explosion, accident, casualty, labor dispute,
flood, drought, riot, storm, condemnation, act of
God, public force or otherwise, whether or not
covered by insurance, except changes occurring in
the Ordinary Course of Business which have not
materially adversely affected the business,
operations or condition of the Purchased Business,
financial or otherwise;
3.5.1.2 the Purchased Business has been carried on in the
Ordinary Course of Business and the Seller has not
entered into any transaction out of the Ordinary
Course of Business;
3.5.1.3 the Seller has not disposed of any machinery,
inventory or equipment of the Purchased Business
other than in the Ordinary Course of Business;
3.5.1.4 the Seller has not made any purchase, sale or
disposition of any asset or property of the
Purchased Business other than in the Ordinary
Course of Business;
3.5.1.5 no party (including the Seller) has accelerated,
terminated, modified, or cancelled any agreement,
contract, lease or license (or series of related
agreements, contracts, leases, and licenses)
relating essentially solely to the Purchased
Business involving more than $25,000 to which the
Seller is a party or by which it is bound;
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3.5.1.6 the Seller has not granted any license or
sublicense of any rights under or with respect to
any Intellectual Property Rights other than in the
Ordinary Course of Business;
3.5.1.7 the Seller has not with respect to the Purchased
Business entered into any employment contract or
collective bargaining agreement, written or oral,
or modified the terms of any existing employment
contract or agreement other than for hourly
workers hired or given wage increases by oral
agreement;
3.5.1.8 the Seller has not granted any bonuses or other
increase in the compensation of any of the
employees who provide services essentially solely
to the Purchased Business, and has not increased
the compensation to any other employees or
independent contractors who provide services
essentially solely to the Purchased Business,
outside the Ordinary Course of Business;
3.5.1.9 the Seller has not adopted, amended, modified, or
terminated any bonus, profit-sharing, incentive,
severance, or other plan, contract, or commitment
covering the employees who provide services
essentially solely to the Purchased Business;
3.5.1.10 the Seller has not made any other change in
employment terms for any of its employees who
provide services essentially solely to the
Purchased Business, outside the Ordinary Course of
Business;
3.5.1.11 the Seller has not entered into any contract or
agreement relating to capital expenditures with
respect to the Purchased Business or with respect
to the construction of tenant improvements with
respect to any Leased Premises; and
3.5.1.12 no customer or supplier of the Seller has
indicated that it intends to decrease its business
with the Seller with respect to the Purchased
Business to the extent that such decrease would
reasonably be expected to have a Material Adverse
Effect and to the Knowledge of the Seller no
customer or supplier intends to change its
relationship with the Seller with respect to the
Purchased Business in a manner that would
reasonably be expected to have a Material Adverse
Effect, including following completion of the
transactions contemplated hereby.
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3.6 Conduct of Purchased Business
3.6.1 The Seller is duly licensed or qualified to do business and
is in good standing in the jurisdictions set forth in
Schedule 3.6.1 which jurisdictions are the only
jurisdictions wherein the character or location of the
properties owned or leased or the nature of the conduct of
the Purchased Business by the Seller makes such
qualification necessary. Set forth in Schedule 3.6.1 is each
location where the Seller (a) has a place of business with
respect to the Purchased Business, and (b) owns or leases
property, with respect to the Purchased Business.
3.6.2 The Seller is, to its Knowledge, conducting the Purchased
Business in compliance in all material respects with all
applicable laws, rules, regulations, notices, approvals and
orders of the State of Oklahoma and of the United States of
America and all municipalities thereof in which the
Purchased Business is carried on, including, but not limited
to the Occupational Safety and Health Act of 1970, as
amended, and the Fair Labor Standards Act, is not in breach
of any such laws, rules, regulations, notices, approvals or
orders and duly possesses all permits and quotas, in those
states and all municipalities thereof in which the Seller
carries on the Purchased Business to enable the Purchased
Business to be carried on as now conducted and its assets to
be owned, leased and operated, and all such licenses,
registrations, qualifications, permits and quotas are valid
and subsisting and in good standing and none of the same
contains or is subject to any term, provision, condition or
limitation which has or may have a Material Adverse Effect
by virtue of the completion of the transactions contemplated
hereby.
3.6.3 To the Knowledge of the Seller, the operation of the Seller
on any lands from which it conducts the operations of the
Purchased Business is not subject to any restriction or
limitation and is not in contravention of any law or
regulation or of any decree or order of any court or other
body having jurisdiction.
3.6.4 Attached as Schedule 3.6.4 is a true and complete list of
all material licenses, registrations, permits and quotas
necessary or required to enable the Purchased Business to be
carried on as now conducted and its assets to be owned,
leased and operated, and a description of the extent to
which such licenses, registrations and permits are
transferable by the Seller to the Purchaser on the date
hereof.
3.7 Assets
3.7.1 Except as set forth in Schedule 3.7, the Seller is the owner
of all the Assets, free and clear of all Encumbrances.
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3.7.2 All machinery and equipment owned or used by the Seller
essentially solely in the Purchased Business have been
properly maintained and are in good working order for the
purposes of ongoing operation, subject to ordinary wear and
tear for machinery and equipment of comparable age or use in
the Ordinary Course of Business.
3.7.3 All the Inventories are of marketable quality and reasonably
fit for their usual purpose.
3.7.4 There are no outstanding orders, notices or similar
requirements relating to the Purchased Business issued by
any building, environmental, fire, health, labor or police
authorities or from any other federal, state, provincial or
municipal authority and there are no matters under
discussion between the Seller and any such authorities
relating to orders, notices or similar requirements with
respect to the Purchased Business.
3.8 Leased Premises
With respect to the Purchased Business, the Seller does not own,
directly or indirectly, any interest in real property other than the
premises that was leased by The Netplex Group, Inc. and located at
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. (the "Leased
Premises"), pursuant to the sublease entered into between The
Netplex Group, Inc. and Applied Intelligence Group, Inc., a copy of
which has been provided to Purchaser (the "Sublease"). The Purchaser
acknowledges that under an oral arrangement between the Purchaser,
the sublessor under the Sublease, and the owner of the Leased
Premises, the Purchaser will make payment as subtenant under the
lease directly to the owner of the Leased Premises. The Parties
acknowledge and agree that the Purchaser through its representative
has contacted the owner of the Leased Premises and is responsible
for any arrangements with respect to occupancy of the Leased
Premises or assignment of the Sublease, to the extent it so
requires. None of the Seller or The Netplex Group, Inc. has
assigned, transferred, conveyed or encumbered any interest in the
Leased Premises. The Leased Premises are supplied with utilities and
other services reasonably necessary for the operation of the Leased
Premises for the Purchased Business as presently conducted.
3.9 Contracts, Agreements and Commitments
All contracts, agreements or commitments (written or oral) to which
the Seller is a party or by which it is bound essentially solely
with respect to the Purchased Business (including without limiting
the generality of the foregoing, the agreements referred to in
Section 2.1.5.2) are legal, binding, valid, enforceable, and in full
force and effect. The Seller is not in default (or will be in
default with the passage of time or notice or otherwise) under any
such contracts, agreements or commitments and there is no reasonably
foreseeable cost overrun on any such
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contracts, agreements or commitments. No such contracts, agreements
or commitments will terminate or give rights to third parties as a
result of the sale of the Purchased Business and the Assets to the
Purchaser.
3.10 Interest in Customers, Suppliers and Competitors
None of the Seller or, to the Knowledge of the Seller, none of the
officers or directors of the Seller has any direct or indirect
controlling interest in any competitor or supplier of the Purchased
Business, or in any person with whom the Seller is doing business.
3.11 Employees
3.11.1 The Seller is not a party to or bound by any contract or
commitment to pay any management fee pertaining to the
Purchased Business.
3.11.2 The Seller does not have any written employment contract or
consulting contract relating to the Purchased Business with
any person whomsoever other than those set out in Schedule
3.11.2.
3.11.3 Schedule 3.11.3 sets out (i) the names of all employees or
consultants of the Purchased Business, (ii) their annual
salary or remuneration, (iii) their job title, (iv) their
total length of employment including any prior employment as
disclosed in the Seller's records that would affect
calculation of years of service for purposes of benefit
entitlement (including statutory notice or statutory
severance pay) or pension entitlement, (v) the length of any
consulting contract, (vi) whether the employees are union or
non-union, (vii) whether any such employees are on any
approved or statutory leave of absence and, if so, the
reason for the absence, and (viii) other terms and
conditions of their employment.
3.12 Competitive Business
No supervisory, managerial or executive employee providing services
to the Purchased Business has notified the Seller that he/she
intends to resign, to establish a competitive business or to take
employment with a competitor of the Purchased Business.
3.13 Intellectual Property Rights; Employee Restrictions
3.13.1 Schedule 3.13.1 sets forth a complete list of all
Intellectual Property Rights owned by, or registered in the
name of, the Seller or of which the Seller is the licensor
or licensee (other than with respect to "off-the-shelf"
software which is generally commercially available to the
public at retail and object code end-users licenses entered
into in the ordinary course of business that permit use of
software products in object code
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form without a right to modify, distribute or sublicense the
same ("End User Licenses") in which the Seller is the
licensee of such software) and which are material to use in
or necessary for the conduct of the Purchased Business as
presently conducted or proposed to be conducted.
3.13.2 The Seller has either exclusive ownership of, free and clear
of claims or rights of any other person, with full right to
use, sell, license, sublicense, dispose of and bring actions
for infringement of, or possesses licenses or other rights
to use all Intellectual Property Rights (including the
Intellectual Property Rights listed on Schedule 3.13.1),
which rights are sufficient for the conduct of the Purchased
Business as presently conducted (other than with respect to
End User Licenses).
3.13.3 No director, officer or shareholder of the Seller has any
right to or in the Seller's Intellectual Property Rights.
All Intellectual Property Rights that are used or
incorporated into the Seller's products or products actively
under development and which are proprietary to the Seller
were developed by or for the Seller by the current or former
employees, consultants or independent contractors of the
Seller, or its predecessors in interest who assigned all of
their right, title and interest in such Intellectual
Property Rights to the Seller or its predecessors, or
purchased by the Seller or its predecessors in interest, and
are owned exclusively by the Seller, free and clear of
claims and rights of any other person.
3.13.4 The Purchased Business as presently conducted and the
developments, production, performance, marketing, licensing,
use and servicing of any products or services of the
Purchased Business do not infringe upon patent, trademark,
copyright, trade secret rights of any third parties or any
other intellectual property rights of any third parties and
the Seller has not received notice from any third party
asserting that any Intellectual Property Rights owned or
licensed by the Seller, or which the Seller otherwise has
the right to use, is invalid or unenforceable by the Seller
or that the use thereof constitutes an infringement of such
third party's rights and there is not to the Seller's
Knowledge basis for any such claim (whether or not pending
or threatened).
3.13.5 No claim is pending, or, to the Knowledge of the Seller,
threatened against the Seller nor has the Seller received
any written notice or other written claim from any person
asserting that any of the Purchased Business' present or
contemplated activities infringe or may infringe upon
patent, trademark, copyright, trade secret rights of any
third parties or any other intellectual property rights of
any third parties, nor is there to the Seller's Knowledge a
basis for any such claim (whether or not pending or
threatened), and the Seller is not aware of any
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infringement by any other person of any rights of the Seller
under any Intellectual Property Rights.
3.13.6 The licenses or other agreements under which the Seller is
granted Intellectual Property Rights are not material to the
conduct and operation of the Purchased Business. All
licenses or other agreements under which the Seller is
granted Intellectual Property Rights (excluding End User
Licenses) are in full force and effect in accordance with
their terms and are not terminable by the licensor as a
result of the transactions contemplated herein. There is no
material default by the Seller thereunder, or to the
Seller's Knowledge any other party thereto and, all of the
rights of the Seller thereunder are freely assignable
without the consent of any party and without payment of any
amount. True and complete copies of all such licenses or
other agreements, and any amendments thereto, have been
provided to the Purchaser, and the Seller has, to the
Seller's Knowledge, no reason to believe that the licensors
under such licenses and other agreements do not have and did
not have all requisite power and authority to grant the
Intellectual Property Rights purported to be conferred
thereby.
3.13.7 All licenses or other agreements under which the Seller has
granted to others rights to Seller's Intellectual Property
Rights are not material to the Purchased Business. All of
said licenses or other agreements are in full force and
effect and there is no material default by the Seller
thereunder, or to the Seller's Knowledge, any other party
thereto. True and complete copies of all such licenses or
other agreements, and any amendments thereto, have been made
available to the Purchaser.
3.13.8 The Seller is not making unlawful use of any patent,
trademark, copyright, trade secret rights of any third
parties or any other intellectual property rights of any
third parties in connection with the Purchased Business,
including, without limitation, any former employer of any
past or present employees of the Seller. Neither the Seller
nor any of its employees or consultants has any agreements
or arrangements with former employers of such employees
relating to any intellectual property rights of such
employers, which interfere or conflict with the performance
of such employee's duties for the Seller or results in any
former employers of such employees having any rights in, or
claims on, the Seller's Intellectual Property Rights. The
activities of the Purchased Business' employees in
connection with the conduct of the Purchased Business do
not, to the Seller's Knowledge, violate any agreements or
arrangements which any such employees have with former
employers.
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3.14 Insurance
Attached hereto as Schedule 3.14 is a true and complete list of all
current insurance policies maintained by the Seller with respect to
the Purchased Business that also specifies the insurer, the amount
of the coverage, the type of insurance, the policy number and a
description of any claims made by the Seller thereunder. The Seller
is not in default with respect of payment of premiums on any
insurance policy held by the Seller with respect to the Purchased
Business and no event has occurred which, with notice or the lapse
of time, would constitute a breach or default, or permit
termination, modification, or acceleration, under such policy.
3.15 Product Warranty
No product or service sold or delivered by the Seller with respect
to the Purchased Business is subject to any guaranty, warranty or
other indemnity beyond the applicable standard terms and conditions
of sale given by the Seller in the Ordinary Course of Business and
all applicable statutory or common law rules, regulations and laws
in connection with the Purchased Business.
3.16 Product Liability
To the Knowledge of the Seller, the Seller has no liability (and, to
the Knowledge of the Seller, there is no basis for any present or
future action, suit, proceeding, hearing, investigation, charge,
complaint, claim or demand against the Seller giving rise to any
liability) arising out of any injury to individuals or property as a
result of the ownership, possession or use of any product or service
sold or delivered by the Seller in connection with the conduct of
the Purchased Business.
3.17 Full Disclosure
None of the representations and warranties made by the Seller or
made in any certificate furnished or to be furnished by the Seller
contain any untrue material statement of fact, or omit to state any
fact necessary to take the statements made, in the light of the
circumstances under which they were made, not misleading.
3.18 Actions and Proceedings, etc.
There are no (i) outstanding judgments, orders, injunctions or
decrees of any governmental authority or arbitration tribunal
against the Seller, (ii) lawsuits, actions or proceedings pending
or, to the Knowledge of the Seller, threatened against the Seller,
or (iii) investigations by any governmental authority which are
pending or, to the Knowledge of the Seller, threatened against the
Seller and which, in the case of each of clauses (i), (ii) and
(iii), have a Material Adverse Effect on the Purchased Business, the
Assets or on the ability of the Seller to consummate the
transactions contemplated hereby or to perform the obligations of
the Seller under this Agreement.
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3.19 Fees
Except for fees payable to Decision Point International, the Seller
has no liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions
contemplated by this Agreement or for which the Purchaser could
become liable or obligated.
4. Survival Of Seller's Representations And Warranties
All representations and warranties of the Seller set forth in Article 3
shall survive for two years from the date hereof, except that
representations and warranties fraudulently made shall survive without
limitation.
5. Purchaser's Representations And Warranties
The Purchaser represents and warrants to the Seller that:
5.1 Organization
The Purchaser is duly incorporated, organized and validly
existing and in good standing under the laws of the State of
Delaware.
5.2 Authority
5.2.1 The Purchaser has good and sufficient power, authority and
right to enter into and deliver this Agreement and to
complete the transactions contemplated hereby.
5.2.2 This Agreement has been duly executed and delivered by
Purchaser, and is a valid and binding obligation of
Purchaser enforceable in accordance with its terms.
5.2.3 Neither entering into nor the delivery of this Agreement nor
the completion of the transactions contemplated hereby by
the Purchaser will result in:
5.2.3.1 the violation of any of the provisions of the
charter documents or by-laws of the Purchaser;
5.2.3.2 the violation of any agreement or other instrument
to which the Purchaser is a party or by which it is
bound;
5.2.3.3 the violation of any applicable law, rule,
regulation, judgment, order or decree.
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6. Survival Of Purchaser's Representations And Warranties
All representations and warranties of the Purchaser set forth in Article 5
shall survive for a period of three years from the date hereof, except that
representations and warranties fraudulently made shall survive without
limitation.
7. Covenants
7.1 Employees
The Purchaser will offer and undertakes to offer, to employ on and
after the date hereof all of the employees who are employed by the
Seller in the Purchased Business and whose names are listed in
Schedule 7.1 on similar terms and conditions of employment as are in
effect on the date hereof.
7.2 Warranty Claims
The Seller shall be responsible for and covenants that it shall
satisfy all valid warranty claims asserted by customers of the
Purchased Business after the date hereof in connection with products
and services provided to such customers by the Seller through and
including the date hereof. Purchaser shall administer and service
any and all such warranty claims on behalf of the Seller. The Seller
agrees to pay to the Purchaser on demand the Purchaser's costs
incurred in connection with any and all such administration and
service (consisting of the Purchaser's labor costs and out-of-pocket
expenses). In addition, the Purchaser shall have no liability in
connection with such warranty claims or the administration and
service of the same and the Seller shall indemnify and hold the
Purchaser harmless from and against any losses, liabilities, costs
or expenses (including reasonable attorneys' fees) incurred by the
Purchaser in connection therewith.
7.3 No Implied Representations, Indemnifications or Warranties
Purchaser stipulates and agrees that it is purchasing the Purchased
Business and the Assets without any representation, indemnification
or warranty by Seller except as set forth in this Agreement.
8. Indemnification; Remedies
8.1 Indemnification by the Seller
The Seller shall indemnify and hold the Purchaser harmless from and
against any claims, demands, actions, causes of action, judgements,
damages, losses, liabilities, costs or expenses (including, without
limitation, interest, penalties and reasonable attorneys' and
experts' fees and disbursements), including Tax liabilities
(collectively, the "Claims") which may be made against the Purchaser
or which it may suffer or incur as a result of, arising out of or
relating to:
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8.1.1 any violation, contravention or breach of any covenant,
agreement or obligation of the Seller under or pursuant to
this Agreement; or
8.1.2 any incorrectness in, or breach of, any representation or
warranty made by the Seller pursuant to Article 3, the
disclosure Schedules attached hereto or in any certificate
or other document delivered or given pursuant to this
Agreement; or
8.1.3 any liabilities or obligations of the Seller of any nature
whatsoever arising after the date hereof in respect of any
fact, condition or circumstance existing or occurring on or
prior to the date hereof, except for the Assumed
Liabilities;
provided, however that (a) the Seller shall not have any obligation
hereunder, including the obligation to indemnify or hold harmless
the Purchaser from and against any Claims, or with respect to the
existence or occurrence of any matter described in Sections 8.1.1,
8.1.2 or 8.1.3, until the Purchaser has suffered Claims in excess of
$250,000 (the "Threshold Amount"); (b) once such Threshold Amount is
attained, the Purchaser shall be entitled to indemnification for the
full amount of all such Claims from the first dollar, and (c) the
Seller's obligation to indemnify or hold harmless the Purchaser from
and against any Claims shall be subject to a $4,000,000 aggregate
ceiling (after which point the Seller will have no obligation or
with respect to the existence or occurrence of any matter described
in Sections 8.1.1, 8.1.2 or 8.1.3, or to indemnify or hold the
Purchaser harmless).
8.2 Indemnification by the Purchaser
The Purchaser shall indemnify and hold the Seller harmless from and
against any Claims which may be made against the Seller or which the
Seller may suffer or incur as a result of, arising out of or
relating to:
8.2.1 any violation, contravention or breach of any covenant,
agreement, or obligation of the Purchaser under or pursuant
to this Agreement;
8.2.2 any incorrectness in, or breach of, any representation or
warranty made by the Purchaser in Article 5, whether or not
the Seller relied thereon or had Knowledge thereof; or
8.2.3 all obligations, including without limitations all Taxes,
arising from the operation of the Purchased Business from
and after the sale of the Purchased Business hereunder.
8.3 Indemnifying Party
The party providing indemnification hereunder (the "Indemnifying
Party") shall reimburse, on demand, to the party being indemnified
hereunder (the
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"Indemnified Party") the amount of any Claims suffered or incurred
by the Indemnified Party, as of the date that the Indemnified Party
incurs any such Claims, together with interest thereon from the
aforesaid date until payment in full at a rate per annum equal to
the annual rate of interest charged by Bank of America, as
published, advertised and commonly known from time to time as the
reference rate on which are based interest rates for commercial
loans granted in the United States of America by such institution,
plus two full percentage points, as adjusted, computed and payable
monthly, on the first Business Day of each month
8.4 Indemnified Party
Within 60 days, upon obtaining knowledge thereof, the Indemnified
Party shall notify, in writing, ("Notice of Claim") the Indemnifying
Party of any cause which the Indemnified Party has determined has
given or could give rise to indemnification under this Article 8
specifying the nature of the Claims, the estimated amount thereof
and the Sections of this Agreement which gave rise to the claim of
indemnity. The omission so to notify the Indemnifying Party shall
not relieve the Indemnifying Party from any duty to indemnify and
hold harmless which otherwise might exist with respect to such cause
unless (and only to that extent) the omission to notify materially
prejudices the ability of the Indemnifying Party to exercise its
right to defend provided in this Article 8. Notwithstanding the
previous sentence, a party shall have no liability under this
Section for a breach of representation or warranty, unless a Notice
of Claim is delivered by the Indemnified Party prior to the Third
Anniversary of the date hereof.
8.5 Third Party Claim
8.5.1 If any legal proceeding shall be instituted or any claim or
demand shall be asserted by a third party against the
Indemnified Party (each a "Third Party Claim"), then the
Indemnifying Party shall have the right, after receipt of
the Indemnified Party's notice under Section 8.4 hereof and
upon giving notice to the Indemnified Party within 30
calendar days of such receipt, to defend the Third Party
Claim at its own cost and expense with counsel of its own
selection, provided that:
8.5.1.1 the Indemnified Party shall at all times have the
right to fully participate in the defense at its
own expense;
8.5.1.2 the Third Party Claim seeks only monetary damages
and does not seek any injunctive or other relief
against the Indemnified Party;
8.5.1.3 the Indemnifying Party unconditionally
acknowledges in writing its obligation to
indemnify and hold the
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Indemnified Party harmless with respect to the
Third Party Claim; and
8.5.1.4 legal counsel chosen by the Indemnifying Party is
satisfactory to the Indemnified Party, acting
reasonably.
8.5.2 Amounts payable by the Indemnifying Party pursuant to a
Third Party Claim shall be paid in accordance with the terms
of the settlement or, the judgment, as applicable, but in
any event prior to the expiry of any delay for a judgment to
become executory.
8.5.3 Neither party shall be permitted to compromise and settle or
to cause a compromise and settlement of any Third Party
Claim, without the prior written consent of the other party,
unless:
8.5.3.1 the terms of the compromise and settlement do not
require the other party to admit any wrongdoing or
take or refrain from taking any action; and
8.5.3.2 both parties receive, as part of the compromise
and settlement, a legally binding and enforceable
unconditional satisfaction or release, which is in
form and substance satisfactory to both parties,
acting reasonably, from any and all obligations or
liabilities it may have with respect to the Third
Party Claim.
8.5.4 If the Indemnifying Party fails within 30 calendar days from
receipt of the notice of a Third Party Claim to give notice
of its intention to defend the Third Party Claim in
accordance with Section 8.5, then the Indemnifying Party
shall be deemed to have waived its right to defend the Third
Party Claim and the Indemnified Party shall have the right
(but not the obligation) to undertake or to cause the
Indemnifying Party to undertake the defense of the Third
Party Claim and compromise and settle the Third Party Claim
on behalf, for the account and at the risk and expense of
the Indemnifying Party.
8.5.5 For the avoidance of doubt, a Third Party Claim is a Claim,
and thus subject to the limitations set forth in Section
8.1.
9. General
9.1 Further Assurances
The Seller and the Purchaser shall from time to time execute and
deliver all such further documents and instruments and do all acts
and things as the other party may, either before or after the date
hereof, reasonably require to effectively carry out or better
evidence or perfect the full intent and meaning of this Agreement.
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9.2 Time of the Essence
Time shall be of the essence of this Agreement.
9.3 Commissions
The Seller and the Purchaser agree to indemnify and save harmless
one another from and against any claims whatsoever for any
commission or other remuneration payable or alleged to be payable to
any person in respect of the transactions contemplated herein,
whether such person purports to act or have acted for the Seller or
the Purchaser in connection with the transactions contemplated
herein.
9.4 Legal Fees
Each of the parties hereto shall pay their respective legal and
accounting and other professional costs and expenses incurred in
connection with the preparation, execution and delivery of this
Agreement and all documents and instruments executed pursuant hereto
and any other costs and expense whatsoever and howsoever incurred.
9.5 Public Announcements
No public announcement or press release concerning the existence of
this Agreement, the contents thereof or the transactions
contemplated thereby shall be made by the Seller or the Purchaser
without the prior written consent and joint approval of the Seller
and the Purchaser (except as required pursuant to applicable law
including the Purchaser's disclosure obligations under securities
legislation).
9.6 Benefit of the Agreement
This Agreement shall inure to the benefit of and be binding upon the
respective heirs, executors, administrators, personal
representatives, successors and permitted assigns of the parties
hereto.
9.7 Entire Agreement
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and cancels and
supersedes any prior understandings and agreements between the
parties hereto with respect thereto, including the Letter of Intent
dated March 26, 2002. There are no representations, warranties,
terms, conditions, undertakings or collateral agreements, express,
implied or statutory, between the parties other than as expressly
set forth in this Agreement.
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9.8 Amendments and Waiver
No modification of or amendment to this Agreement shall be valid or
binding unless set forth in writing and duly executed by the Seller,
and the Purchaser and no waiver of any breach of any term or
provision of this Agreement shall be effective or binding unless
made in writing and signed by the Seller, in the case of a waiver by
Seller or by the Purchaser, in the case of a waiver by Purchaser,
and, unless otherwise provided, shall be limited to the specific
breach waived.
9.9 Assignment
This Agreement may not be assigned by a party hereto without the
prior written consent of the other parties hereto.
9.10 Notices
Any demand, notice or other communication to be given in connection
with this Agreement shall be given in writing and shall be given by
personal delivery, by registered mail or by electronic means of
communication addressed to the recipient as follows:
To the Purchaser:
CGI Group Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice-President and Chief Legal
---------
Counsel
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
"Le Windsor"
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇
---------
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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To the Seller:
Netplex Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
U.S.A.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
with a required copy to:
Arent Fox ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇, PLLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇▇▇▇ ▇. Brand, Esq.
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Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address, individual or electronic communication
number as may be designated by notice given by a party to the
others. Any demand, notice or other communication given by personal
delivery shall be conclusively deemed to have been given on the day
of actual delivery thereof and, if given by registered or certified
mail, on the third Business Day following the deposit thereof in the
mail and, if given by electronic communication, on the day of
transmittal thereof if given during the normal business hours of the
recipient and on the Business Day during which such normal business
hours next occur if not given during such hours on any day. If the
party giving any demand, notice or other communication knows or
ought reasonably to know of any difficulties with the postal system
which might affect the delivery of mail, any such demand, notice or
other communication shall not be mailed but shall be given by
personal delivery or by electronic communication.
9.11 Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of Oklahoma without giving effect to any
choice or conflict of law provision or rule that would cause
application of any jurisdiction other than the State of Oklahoma.
9.12 Counterparts
This Agreement may be executed in one or more counterparts, each of
which shall be deemed and original but all of which together shall
constitute one and the same instrument.
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9.13 Delivery and Acceptance
The parties shall be entitled to rely on delivery by facsimile
machine of an executed copy of this Agreement and acceptance by a
party of such facsimile copy shall be equally effective to create a
valid and binding agreement between each of the parties in
accordance with the terms hereof.
[The remainder of this page has been left intentionnally blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement.
CGI Information Systems & Management
Consultants, Inc.
Per:
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▇▇▇▇▇ ▇▇▇▇▇, Chairman of the Board, President
and Chief Executive Officer
Netplex Systems, Inc.
Per:
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▇▇▇▇ ▇▇▇▇▇, Chairman of the Board
