Exhibit 10.15
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ASSET PURCHASE AGREEMENT
between
FILENET CORPORATION
as Purchaser
and
ON SITE SOLUTIONS, INC.
as Seller
Dated as of July 31, 1999
ASSET PURCHASE AGREEMENT, dated as of July 31, 1999 (as
hereafter amended, modified or supplemented, this "Agreement"), between FileNET
Corporation, a Delaware corporation ("Purchaser") and On Site Solutions, Inc., a
California corporation ("Seller").
WITNESSETH
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WHEREAS, Seller owns and operates a business which conducts
the activities described on Annex A hereto (the "Business"); and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller, certain assets relating to the Business and in
connection therewith Purchaser is willing to assume certain liabilities of
Seller relating thereto, all upon the terms and subject to the conditions set
forth herein;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements and covenants hereinafter set forth, and intending to be
legally bound hereby, Purchaser and Seller hereby agree as follows:
Article 1. DEFINITIONS
.1 Certain Defined Terms. Unless the context otherwise requires, the
following terms, when used in this Agreement, shall have the respective meanings
specified below:
"Acquisition Documents" shall mean this Agreement, and any
certificate, Financial Statement, Interim Financial Statement, report or other
document delivered pursuant to this Agreement.
"Action" shall mean any claim, action, suit, arbitration,
inquiry, proceeding or investigation by or before any Governmental Authority.
"Affiliate" shall mean, with respect to any specified Person,
any other Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified Person.
"Assets" shall have the meaning specified in Section 2.01.
"Assumed Liabilities" shall have the meaning specified in
Section 2.02(a).
"▇▇▇▇ of Sale" shall mean the ▇▇▇▇ of Sale, Assignment and
Assumption Agreement to be executed by Seller on the Closing Date substantially
in the form of Exhibit B.
"Business" shall have the meaning specified in the recitals to
this Agreement.
"Business Day" shall mean any day that is not a Saturday, a
Sunday or other day on which banks are required or authorized by Law to be
closed in The City of New York.
"Closing" shall have the meaning specified in Section 2.04.
"Closing Date" shall have the meaning specified in Section
2.04.
"Code" shall mean the Internal Revenue Code of 1986, as
amended through the date hereof.
"Control" (including the terms "controlled by" and "under
common control with"), with respect to the relationship between or among two or
more Persons, shall mean the possession, directly or indirectly or as trustee,
personal representative or executor, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the
ownership of voting securities, as trustee, personal representative or
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executor, by contract or otherwise, including, without limitation, the
ownership, directly or indirectly, of securities having the power to elect a
majority of the board of directors or similar body governing the affairs of such
Person.
"Disclosure Schedule" shall mean the Disclosure Schedules
attached hereto, dated as of the date hereof, and forming a part of this
Agreement.
"Equipment" shall have the meaning specified in Annex A.
"ERISA" shall have the meaning specified in Section 3.13(a).
"Excluded Liabilities" shall have the meaning specified in
Section 2.02(b).
"Financial Statements" shall have the meaning specified in
Section 3.04(a)(i).
"Governmental Authority" shall mean any national, federal,
state, municipal or local or other government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
"Governmental Order" shall mean any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by or with any
Governmental Authority.
"Indemnified Party" shall have the meaning specified in
Section 8.04.
"Indemnifying Party" shall have the meaning specified in
Section 8.04.
"Independent Accounting Firm" shall mean Deloitte & Touche LLP.
"Intellectual Property" shall mean, with respect to the
Business (i) inventions, whether or not patentable, whether or not reduced to
practice, and whether or not yet made the subject of a pending patent
application or applications, (ii) national (including the United States) and
multinational statutory invention registrations, patents, patent registrations
and patent applications (including all reissues, divisions, continuations,
continuations-in-part, extensions and reexaminations) and all rights therein
provided by international treaties or conventions and all improvements to the
inventions disclosed in each such registration, patent or application, (iii)
trademarks, service marks, trade dress, logos, trade names and corporate names,
whether or not registered, including all common law rights, and registrations
and applications for registration thereof, (iv) copyrights (registered or
otherwise) and registrations, applications for registration and licenses
thereof, and all rights therein provided by international treaties or
conventions, (v) trade secrets and confidential, technical and business
information (including ideas, formulas, compositions, inventions, and
conceptions of inventions whether patentable or unpatentable and whether or not
reduced to practice), (vi) copies and tangible embodiments of all the foregoing,
in whatever form or medium, (vii) all rights to obtain and rights to apply for
patents, and to register trademarks and copyrights, and (viii) all rights to ▇▇▇
or recover and retain damages and costs and attorneys' fees for present and past
infringement of any of the foregoing.
"IRS" shall mean the Internal Revenue Service of the United
States.
"Law" shall mean any national, federal, state, municipal or
local or other statute, law, ordinance, regulation, rule, code, order, other
requirement or rule of law.
"Liabilities" shall mean any and all debts, liabilities and
obligations, whether accrued or fixed, absolute or contingent, matured or
unmatured or determined or determinable, including, without limitation, those
arising under any Law, Action or Governmental Order and those arising under any
contract, agreement, arrangement, commitment or undertaking.
"Licensed Intellectual Property" shall mean all Intellectual
Property licensed or sublicensed by Seller from a third party which can be used
by Purchaser after the Closing and which is listed on Disclosure Schedule 3.10.
"Loss" shall have the meaning specified in Section 8.02(a).
"Material Adverse Effect" shall mean any circumstance, change
in, or effect on, the Business that, individually or in the aggregate with any
other circumstances, changes in, or effects on, the Business (i) is, or would
reasonably be expected to be, materially adverse to the business, operations,
assets or liabilities (including, without limitation, contingent liabilities) or
the financial condition of the Business or (ii) would reasonably be expected to
materially adversely affect the ability of Purchaser to operate or conduct the
Business in the manner in which it is currently operated or conducted by Seller.
"Material Contracts" shall mean all contracts and agreements
identified on Disclosure Schedule 3.10.
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"Owned Intellectual Property" shall mean all Intellectual
Property in and to which Seller has a right to hold, right, title and interest
listed on Disclosure Schedule 2.01(A).
"Person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization or other entity, as
well as any syndicate or group that would be deemed to be a person under Section
13(d)(3) of the Securities Exchange Act of 1934, as amended.
"Plans" shall have the meaning specified in Section 3.13.
"Purchase Price" shall have the meaning specified in Section
2.03.
"Purchaser" shall have the meaning specified in the recitals
to this Agreement.
"Receivables" shall mean any and all accounts receivable,
notes and other amounts receivable from third parties, including, without
limitation, customers and employees, arising from the conduct of the Business
before the Closing Date, whether or not in the ordinary course, together with
any unpaid financing charges accrued thereon.
"Reference Balance Sheet" shall have the meaning specified in
Section 3.04(a)(ii).
"Reference Balance Sheet Date" shall mean July 31, 1999.
"Regulations" shall mean the Treasury Regulations (including
Temporary Regulations) promulgated by the United States Department of Treasury
with respect to the Code or other federal tax statutes.
"Seller" shall have the meaning specified in the recitals to
this Agreement.
"Tax" or "Taxes" shall mean any and all taxes, fees, levies,
duties, tariffs, imposts and other charges of any kind (together with any and
all interest, penalties, loss, damage, liability, expense, additions to tax and
additional amounts or costs incurred or imposed with respect thereto) imposed by
any government or taxing authority, to the extent Purchaser may be held liable
for any such amount or to the extent any such amount constitutes a lien on the
Assets or the Business.
"Third Party Claims" shall have the meaning specified in
Section 8.04(b).
"Threshold Amount" shall have the meaning specified in Section
8.02(b).
"Transferred Employee" shall have the meaning specified in
Section 6.01.
"U.S. GAAP" shall mean United States generally accepted
accounting principles and practices in effect from time to time applied
consistently throughout the periods involved.
Article 2. PURCHASE AND SALE
.1 Assets to Be Sold. On the terms and subject to the conditions of
this Agreement, Seller shall, on the Closing Date, sell, convey and assign to
Purchaser, free and clear of all claims, liens and interests except as is
provided for herein, all of Seller's right, title and interest in and to the
Assets set forth on Disclosure Schedule 2.01 and no other assets, other than
those listed on Disclosure Schedule 2.01 ("Assets").
.2 Assumption and Exclusion of Liabilities.
(a) On the terms and subject to the conditions of this
Agreement, Purchaser shall, on the Closing Date, assume the following
liabilities and obligations arising out of ownership, use and operation of the
Business after the Closing Date (the "Assumed Liabilities") set forth on
Disclosure Schedule 2.02(a).
(b) Seller shall retain, and shall be responsible for paying,
performing and discharging when due, and Purchaser shall not assume or have any
responsibility for any liabilities and obligations other than the Assumed
Liabilities (the "Excluded Liabilities") whether or not the Excluded Liabilities
relate to the Business.
.3 Purchase Price. (a) The aggregate purchase price for the Assets
and Assumed Liabilities shall be $420,000 (the "Purchase Price") to be paid in
cash paid by wire transfer from Purchaser to Seller on the Closing Date.
.4 Closing. Subject to the terms and conditions of this Agreement,
the sale and purchase of the Assets and the assumption of the Assumed
Liabilities contemplated by this Agreement shall take place at a closing (the
"Closing") to be held at the offices of FileNET Corporation, ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ at 10:00 A.M. California time on August ___,
1999, or at such other place or at such other time or on such other date as
Seller and Purchaser may mutually agree upon in writing (the day on which the
Closing takes place being the "Closing Date").
.5 Closing Deliveries by Seller. At the Closing, Seller shall deliver
or cause to be delivered to Purchaser:
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(a) the ▇▇▇▇ of Sale substantially in the form of Exhibit A,
and such other instruments, in form and substance satisfactory to Purchaser, as
may be reasonably requested by Purchaser to transfer the Assets to Purchaser or
evidence such transfer on the public records;
(b) Assignment Letters substantially in the form of Exhibit E;
(c) a receipt for the Purchase Price; and
(d) the opinions, certificates and other documents required to
be delivered pursuant to Section 7.01.
.6 Closing Deliveries by Purchaser. At the Closing, Purchaser shall
deliver to Seller:
(a) the net amount equal to $420,000 less cash receipts plus
cash disbursements from July 31, 1999 by wire transfer in immediately available
funds;
(b) Assignment and Assumption Agreement substantially in the
form of Exhibit B;
(c) the opinions, certificates and other documents required to
be delivered pursuant to Section 7.02;
(d) copy of Form 3 filing receipt; and
(e) post-Closing payment.
.7 Effective Date. Notwithstanding anything contained in this
Agreement to the contrary, for accounting purposes, the purchase and sale of the
Assets and the assignment and assumption of the Assumed Liabilities pursuant to
this Agreement shall be deemed to be effective as of the close of business on
July 31, 1999. Any cash received by Seller after July 31, 1999 in payment of
receivables or otherwise related to the Assets shall be paid to Purchaser at the
Closing. Purchaser shall be responsible for all liabilities incurred in the
ordinary course of business of Seller after July 31, 1999, including payroll and
employee benefit expenses.
Article 3. REPRESENTATIONS AND WARRANTIESOF SELLER
As an inducement to Purchaser to enter into this Agreement,
Seller hereby represents and warrants to Purchaser as of the Closing Date, as
follows:
.1 Organization, Authority and Qualification of Seller. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all necessary corporate power and authority
to enter into the Acquisition Documents, to carry out its obligations hereunder
and thereunder and to consummate the transactions contemplated hereby and
thereby. Seller is duly licensed or qualified to do business and is in good
standing in each jurisdiction in which the properties owned or leased by it or
the operation of its business makes such licensing or qualification necessary.
The execution and delivery of this Agreement and the Ancillary Agreements by
Seller, the performance by Seller of its obligations hereunder and thereunder
and the consummation by Seller of the transactions contemplated hereby and
thereby have been duly authorized by all requisite action on the part of Seller
and its shareholders. This Agreement has been, and upon their execution the
Ancillary Agreements will be, duly executed and delivered by Seller, and
(assuming due authorization, execution and delivery by Purchaser) this Agreement
constitutes, and upon their execution the Ancillary Agreements will constitute,
legal, valid and binding obligations of Seller enforceable against Seller in
accordance with their respective terms.
.2 No Conflict. The execution, delivery and performance of this
Agreement by Seller does not and will not (a) violate, conflict with or result
in the breach of any provision of the charter or by-laws (or similar
organizational documents) of Seller, (b) conflict with or violate (or cause an
event which could have a Material Adverse Effect as a result of) any Law or
Governmental Order applicable to Seller or any of its assets, properties or
businesses, including, without limitation, the Assets and the Business, or (c)
except as set forth in Disclosure Schedule 3.02, conflict with, result in any
breach of, constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the creation of any
encumbrance on any of the Assets pursuant to, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument or arrangement to which Seller is a party or by which any of
such Assets is bound or affected and which is included in the Assets.
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.3 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement by Seller do not and will not require any consent,
approval, authorization or other order of, action by, filing with or
notification to, any Governmental Authority, except as described in Disclosure
Schedule 3.03.
.4 Financial Information; Books and Records.
(a) (i) Disclosure Schedule 3.04(a)(i) sets forth true and
complete copies of the unaudited balance sheet of Seller for the fiscal year
ended as of December 31, 1998 of the Business, and the related statements of
income (collectively, the "Financial Statements") and (ii) Disclosure Schedule
3.04(a)(ii) sets forth true and complete copies of the unaudited balance sheet
of the Business as of July 31, 1999 (the "Reference Balance Sheet") has been
delivered by Seller to Purchaser. The Financial Statements and the Reference
Balance Sheet (i) were prepared in accordance with the books of account and
other financial records of Seller, (ii) present fairly the financial condition
and results of operations of Seller related to the Business as of the dates
thereof or for the periods covered thereby, (iii) have been prepared in
accordance with U.S. GAAP applied on a basis consistent with the past practices
of Seller and throughout the periods involved, and (iv) will include all
adjustments (consisting only of normal recurring accruals) that are necessary
for a fair presentation of the financial condition of Seller related to the
Business and the results of the operations of Seller related to the Business as
of the dates thereof for the periods covered thereby other than customary
year-end adjustments.
(b) The books of account and other financial records of Seller
as they relate to the Business: (i) reflect all items of income and expense and
all assets and Liabilities required to be reflected therein in accordance with
U.S. GAAP applied on a basis consistent with the past practices of Seller and
throughout the periods involved, (ii) are in all material respects complete and
correct, and do not contain or reflect any material inaccuracies or
discrepancies, and (iii) have been maintained in accordance with good business
and accounting practices.
.5 No Undisclosed Liabilities. There are no Liabilities of Seller
related to the Business other than Liabilities (i) reflected or reserved against
on the Reference Balance Sheet, (ii) disclosed in Disclosure Schedule 3.05,
(iii) incurred since the Reference Balance Sheet Date in the ordinary course of
business, consistent with past practice, of Seller related to the Business (iv)
of a type that U.S. GAAP does not require to be reported on a balance sheet; or
(v) which do not and could not have a Material Adverse Effect. Reserves are
reflected on the Reference Balance Sheet against all Liabilities of Seller
related to the Business, other than Liabilities relating to the Excluded
Liabilities, in amounts that have been established on a basis consistent with
the past practices of Seller related to the Business and in accordance with U.S.
GAAP.
.6 Receivables. Except to the extent, if any, reserved for on the
Reference Balance Sheet, all Receivables reflected on the Reference Balance
Sheet related to the Assets arose from, and the Receivables existing on the
Closing Date related to the Assets will have arisen from, the sale of Inventory
or services to Persons not affiliated with Seller and in the ordinary course of
the Business consistent with past practice and, except as reserved against on
the Reference Balance Sheet, constitute or will constitute, as the case may be,
only valid, undisputed claims of Seller which are not subject to set-off or
other defenses or counterclaims other than in the ordinary course of the
Business consistent with past practice.
.7 Conduct in the Ordinary Course; Absence of Certain Changes, Events
and Conditions. Since the Reference Balance Sheet Date, except as disclosed in
Disclosure Schedule 3.07, the Business has been conducted in the ordinary course
and consistent with past practice. Since the Reference Balance Sheet date,
Seller has not permitted or suffered any liens or encumbrances on the Assets,
made any unusual payments, purchases, transactions, capital expenditures or
agreements. As amplification and not limitation of the foregoing, since the
Reference Balance Sheet Date, Seller has not:
(i) written down or written up (or failed to write down in
accordance with U.S. GAAP consistent with past practice) the value of any
Receivables or revalued any assets of Seller related to the Business other than
in the ordinary course of business consistent with past practice and in
accordance with U.S. GAAP;
(ii) (A) granted any increase, or announced any increase, in
the wages, salaries, compensation, bonuses, incentives, pension or other
benefits payable by Seller related to the Business to any of its employees,
including, without limitation, any increase or change pursuant to any Plan, or
(B) established or increased or promised to increase any benefits under any
Plan, in either case except as required by Law or any
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collective bargaining agreement and involving ordinary increases consistent with
the past practice of Seller related to the Business; or
(iii) suffered any Material Adverse Effect related to the
Business.
.8 Litigation. Except as set forth in Disclosure Schedule 3.08,
there are no Actions by or against Seller affecting any of the Assets pending
before any Governmental Authority (or, to the best knowledge of Seller after due
inquiry, threatened to be brought by or before any Governmental Authority).
Except as set forth in Disclosure Schedule 3.08, neither Seller nor the Assets,
is subject to any Governmental Order (nor, to the best knowledge of Seller after
due inquiry, are there any such Governmental Orders threatened to be imposed by
any Governmental Authority).
.9 Compliance with Laws. To the best of Seller's knowledge, it has
conducted and continues to conduct the Business in accordance with all Laws and
Governmental Orders applicable to Seller or the Assets and the Business, and
Seller is not in violation of any such Law or Governmental Order, except where
such noncompliance or violation would not reasonably be expected to have a
Material Adverse Effect.
.10 Material Contracts.
(a) Except as disclosed in Disclosure Schedule 3.10(a), each
Material Contract: (i) is legal, valid and binding on the respective parties
thereto and is in full force and effect, (ii) is freely and fully assignable to
Purchaser without penalty or other adverse consequences, (iii) upon consummation
of the transactions contemplated by this Agreement, shall continue in full force
and effect without penalty or other adverse consequence. Seller is not, in any
material respect, in breach of, or default under, any Material Contract; and
(iv) has products and services of Seller which are Year 2000 compliant.
(b) Except as disclosed in Disclosure Schedule 3.10(b), no
other party to any Material Contract is, in any material respect, in breach
thereof or default thereunder.
.11 Intellectual Property. The rights of Seller in or to the Owned
Intellectual Property and Licensed Intellectual Property do not conflict with or
infringe on the rights of any other Person, and Seller has not received any
claim or written notice from any Person to such effect.
(a) Except as disclosed in Disclosure Schedule 3.11(a):
(i) all the Owned Intellectual Property is owned by Seller, free and clear of
any encumbrance and (ii) no Actions have been made or asserted or are pending
(nor, to the best knowledge of Seller has any such Action been threatened)
against Seller either (A) based upon or challenging or seeking to deny or
restrict the use by Seller of any of the Owned Intellectual Property or (B)
alleging that any services provided, or software licensed or sold by Seller are
being provided, licensed or sold in violation of any patents or trademarks, or
any other rights of any Person. To the best knowledge of Seller, no Person is
using any patents, copyrights, trademarks, service marks, trade names, trade
secrets or similar property that are confusingly similar to the Owned
Intellectual Property or that infringe upon the Owned Intellectual Property or
upon the rights of Seller therein.
(b) Except as disclosed in Disclosure Schedule 3.11(b):
(i) no Actions have been made or asserted or are pending (nor, to the knowledge
of Seller has any such Action been threatened) against Seller either (A) based
upon or challenging or seeking to deny or restrict the use by Seller of any of
the Licensed Intellectual Property or (B) alleging that any Licensed
Intellectual Property is being licensed, sublicensed or used in violation of any
patents or trademarks, or any other rights of any Person; and (ii) to the best
knowledge of Seller, no Person is using any patents, copyrights, trademarks,
service marks, trade names, trade secrets or similar property that are
confusingly similar to the Licensed Intellectual Property or that infringe upon
the Licensed Intellectual Property or upon the rights of Seller therein.
.12 Assets. Except as disclosed in Disclosure Schedule 3.12, Seller
owns, leases or has the legal right to use all the Assets and has good and
marketable title to, all the Assets, free and clear of all encumbrances.
(a) Except as set forth in Sections 3.10(b), 3.11(b), 3.12 of
the Disclosure Schedule, Seller has the complete and unrestricted power and
unqualified right to sell, assign, transfer, convey and deliver the Assets to
Purchaser without penalty or other adverse consequences.
.13 Employee Benefit Matters. Plans and Material Documents.
Disclosure Schedule 3.13 lists all employee benefit plans (as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) and all bonus, stock option, stock purchase, restricted stock,
incentive, deferred
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compensation, retiree medical or life insurance, supplemental retirement,
severance or other benefit plans, programs or arrangements, and all employment,
termination, severance or other contracts or agreements, whether legally
enforceable or not, to which Seller is a party with respect to the Business,
with respect to which Seller has any obligation or which are maintained,
contributed to or sponsored by Seller for the benefit of any current employee,
officer or director of Seller with respect to the Business (collectively,
"Plans").
(a) Absence of Certain Liabilities and Events. There has been
no prohibited transaction (within the meaning of Section 406 of ERISA or Section
4975 of the Code) with respect to any Plan. Seller has not incurred any
liability for any excise tax arising under Section 4971, 4972, 4980 or 4980B of
the Code and to the best of Seller's knowledge no fact or event exists which
could give rise to any such liability. Seller has not incurred any liability
under, arising out of or by operation of Title IV of ERISA (other than liability
for premiums to the Pension Benefit Guaranty Corporation arising in the ordinary
course), including, without limitation, any liability in connection with (i) the
termination or reorganization of any employee benefit plan subject to Title IV
of ERISA, or (ii) the withdrawal from any Multiemployer Plan or Multiple
Employer Plan, and no fact or event exists which could give rise to any such
liability. No complete or partial termination has occurred within the five years
preceding the date hereof with respect to any Plan. No reportable event (within
the meaning of Section 4043 of ERISA) has occurred or is expected to occur with
respect to any Plan subject to Title IV of ERISA. No Plan had an accumulated
funding deficiency (within the meaning of Section 302 of ERISA or Section 412 of
the Code), whether or not waived, as of the most recently ended plan year of
such Plan.
.14 Labor Matters. Except as set forth in Disclosure Schedule 3.14,
(a) Seller is not a party to any collective bargaining agreement or other labor
union contract applicable to persons employed by Seller with respect to the
Business, and currently there are no organizational campaigns, petitions or
other unionization activities known to Seller seeking recognition of a
collective bargaining unit at the Business; (b) there are no controversies,
strikes, slowdowns or work stoppages pending or, to the best knowledge of
Seller, threatened between Seller and any group of employees of the Business,
and Seller has not experienced any such controversy, strike, slowdown or work
stoppage within the past three years; (c) Seller has not breached or otherwise
failed to comply with the provisions of any collective bargaining or union
contract with respect to the Business and there are no grievances outstanding
against Seller under any such agreement or contract; (d) there are no unfair
labor practice complaints pending against Seller with respect to the Business
before the National Labor Relations Board or any other Governmental Authority or
any current union representation questions involving employees of the Business;
(e) Seller is currently in compliance in all material respects with all
applicable Laws relating to the employment of labor, including those related to
wages, hours, collective bargaining, employee benefits and the payment and
withholding of taxes and other sums as required by the appropriate Governmental
Authority with respect to the Business and has withheld and paid to the
appropriate Governmental Authority or is holding for payment not yet due to such
Governmental Authority all amounts required to be withheld from employees of the
Business and is not liable for any arrears of wages, taxes, penalties or other
sums for failure to comply with any of the foregoing; (f) Seller has paid in
full to all employees of the Business or adequately accrued for in accordance
with U.S. GAAP consistently applied all wages, salaries, commissions, bonuses,
benefits and other compensation due to or on behalf of such employees; (g) there
is no claim with respect to payment of wages, salary or overtime pay that has
been asserted or is now pending or threatened before any Governmental Authority
with respect to any Persons currently or formerly employed by Seller in the
Business; (h) Seller is not a party to, or otherwise bound by, any consent
decree with, or citation by, any Governmental Authority relating to employees or
employment practices with respect to the Business; (i) there is no charge or
proceeding with respect to a violation of any occupational safety or health
standards that has been asserted or is now pending or threatened with respect to
the Business; and (j) there is no charge of discrimination in employment or
employment practices, for any reason, including, without limitation, age,
gender, race, religion or other legally protected category, which has been
asserted or is now pending or threatened before the United States Equal
Employment Opportunity Commission, or any other Governmental Authority in any
jurisdiction in which Seller has employed or currently employs any Person with
respect to the Business.
.15 Insurance. All material assets, properties and risks of the
Business are covered by valid and, except for policies that have expired under
their terms in the ordinary course, currently effective insurance policies or
binders of insurance (including, without limitation, general liability
insurance, property insurance and workers'
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compensation insurance) issued in favor of Seller, in each case with responsible
insurance companies, in such types and amounts and covering such risks as are
consistent with customary practices and standards of companies engaged in
businesses and operations similar to those of Seller with respect to the
Business.
(a) At no time subsequent to December 31, 1998 has Seller
(i) been denied any insurance which it has requested with respect to either the
Assets or the Business, (ii) made any material reduction in the scope or amount
of its insurance coverage with respect to either the Assets or the Business, or
received notice from any of its insurance carriers that any insurance premiums
will be subject to increase in an amount materially disproportionate to the
amount of the increases with respect thereto (or with respect to similar
insurance) in prior years or that any insurance coverage listed in Disclosure
Schedule 3.15(a) will not be available in the future substantially on the same
terms as are now in effect or (iii) suffered any extraordinary increase in
premium for renewed coverage with respect to either the Assets or the Business.
Since December 31, 1998, no insurance carrier has cancelled, failed to renew or
materially reduced any insurance coverage for Seller with respect to either the
Assets or the Business or given any notice or other indication of its intention
to cancel, not renew or reduce any such coverage with respect to either the
Assets or the Business.
.16 Full Disclosure. No representation or warranty of Seller in this
Agreement, nor any statement or certificate furnished or to be furnished prior
to or at the Closing to Purchaser pursuant to this Agreement contains or will
contain any untrue statement of a material fact, or omits or will omit to state
a material fact necessary to make the statements contained herein or therein not
misleading.
.17 Brokers. No broker, finder or investment banker is entitled to
any brokerage, finder's or other fee or commission in connection with the
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Seller.
.18 Vote Required. The affirmative vote of Seller is the only vote
necessary to approve this Agreement and the transactions contemplated hereby.
Seller has approved this Agreement and the transactions contemplated hereby.
Article 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER
As an inducement to Seller to enter into this Agreement,
Purchaser hereby represents and warrants to Seller as follows:
.1 Organization and Authority of Purchaser. Purchaser is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California and has all necessary corporate power and authority
to enter into this Agreement, to carry out its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution and delivery of this Agreement by Purchaser, the performance by
Purchaser of its obligations hereunder and thereunder and the consummation by
Purchaser of the transactions contemplated hereby and thereby have been duly
authorized by all requisite action on the part of Purchaser. This Agreement has
been duly executed and delivered by Purchaser, and (assuming due authorization,
execution and delivery by Seller) this Agreement constitutes legal, valid and
binding obligations of Purchaser, enforceable against Purchaser in accordance
with their respective terms.
.2 No Conflict. Assuming the making and obtaining of all filings,
notifications, consents, approvals, authorizations and other actions referred to
in Section 4.03, except as may result from any facts or circumstances relating
solely to Seller, the execution, delivery and performance of this Agreement by
Purchaser, do not and will not (a) violate, conflict with or result in the
breach of any provision of the Articles of Incorporation or by-laws (or other
organizational documents) of Purchaser; or (b) conflict with or violate any Law
or Governmental Order applicable to Purchaser.
.3 Governmental Consents and Approvals. The execution, delivery and
performance of this Agreement to which it is a party by Purchaser do not and
will not require any consent, approval, authorization or other order of, action
by, filing with, or notification to, any Governmental Authority.
.4 Other Actions. There are no actions, proceedings or
investigations pending or, to the knowledge of Purchaser, threatened, that
question any of the transactions contemplated by, or the validity of, this
Agreement or which, if adversely determined, could reasonably be expected to
have a material adverse effect upon the ability of Purchaser or Seller to enter
into or perform its respective obligations under this Agreement. Purchaser has
not, on
8
behalf of itself or Seller, received any request from any governmental agency or
instrumentality for information with respect to the transactions contemplated
hereby.
.5 Brokers. No broker, finder or investment banker except Alliant
Partners is entitled to any brokerage, finder's or other fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Purchaser.
Article 5. ADDITIONAL AGREEMENTS
.1 Retention of Records by Purchaser. In order (a) to facilitate the
resolution of any claims made against or incurred by Seller prior to the
Closing, for a period ending on the close of business on the 120th day following
the expiration of the applicable statute of limitations with respect to Tax
liabilities, Purchaser shall (i) retain the books and records of Seller which
are transferred to Purchaser pursuant to this Agreement relating to periods
prior to the Closing in a manner reasonably consistent with the prior practices
of Seller, and (ii) upon reasonable notice, afford the officers, employees and
authorized agents and representatives of Seller reasonable access (including the
right to make photocopies at Purchaser's expense), during normal business hours,
to such books and records.
.2 Retention of Records by Seller. In order (a) to facilitate the
resolution of any claims made by or against or incurred by Purchaser after the
Closing or for any other reasonable purpose, for a period ending on the close of
business on the 120th day following the expiration of the applicable statute of
limitations with respect to Tax liabilities, Seller shall (i) retain all books
and records of Seller which are not transferred to Purchaser pursuant to this
Agreement and which relate to Seller, its operations or the Business for periods
prior to the Closing and which shall not otherwise have been delivered to
Purchaser, and (ii) upon reasonable notice, afford the officers, employees and
authorized agents and representatives of Purchaser reasonable access (including
the right to make photocopies at Purchaser's expense), during normal business
hours, to such books and records.
.3 Confidentiality. The parties acknowledge that Purchaser and Seller
have previously executed the Confidentiality Agreement, which Confidentiality
Agreement shall continue in full force and effect in accordance with its terms.
.4 Regulatory and Other Authorizations; Notices and Consents.
(a) Seller shall use commercially reasonable efforts to obtain all
authorizations, consents, orders and approvals of all Governmental Authorities
and officials, customers, vendors and other parties who may have or be able to
assert legal rights with respect to this transaction that may be or become
necessary for execution and delivery of this Agreement, and the performance of
Seller's obligations pursuant to this Agreement and will cooperate fully with
Purchaser in promptly seeking to obtain all such authorizations, consents,
orders and approvals.
.5 Notice of Developments. Prior to the Closing, Seller shall
promptly notify Purchaser in writing of (a) all events, circumstances, facts and
occurrences arising subsequent to July 31, 1999 which could have a Material
Adverse Effect on the Business, and (b) all other material developments
affecting the Assets, Liabilities, business, financial condition, operations,
results of operations, customer relations, employee relations or projections of
the Business.
.7 Section 5.06 Use of Intellectual Property. Except as set forth in
Section 5.09, from and after the Closing, Seller shall not use any of the Owned
Intellectual Property or the Licensed Intellectual Property.
.12 Section 5.07 Bulk Transfer Laws. Seller shall not be required to
comply with any applicable bulk sale or bulk transfer laws of any jurisdiction
in connection with the sale of the Assets to Purchaser, which are waived by
Purchaser.
Section 5.08 Further Action. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things necessary, proper or advisable under applicable
Laws, including obtaining any necessary consents or approvals from, or making
any necessary filings with any domestic or foreign regulatory agencies, and
execute and deliver such documents and other papers, as may be required to carry
out the provisions of this Agreement and consummate and make effective the
transactions contemplated by this Agreement.
Section 5.09 Use of Software. Notwithstanding anything contained in
this Agreement to the contrary, Seller shall retain, following the Closing, the
right to use the software described on Annex B hereto, including source codes,
in connection with the performance of its obligations under maintenance
agreements with existing
9
customers. Seller shall also have the right to allow its former affiliates to
use and exploit the software described on Annex B hereto, including source
codes, in connection with the performance of their obligations under maintenance
agreements with existing customers. All title and ownership rights in and to the
software described on Annex B shall remain vested in Purchaser.
Article 6. EMPLOYEE MATTERS
.1 Offer of Employment. Disclosure Schedule 6.01 contains a true and
complete list of all employees of the Business as of the date hereof and sets
forth their position, current salary and status. As of the Closing Date,
Purchaser shall offer employment to certain current employees of the Business.
Each employee who accepts such offers of employment effective as of the Closing
Date shall be referred to herein as a "Transferred Employees."
.2 Accrued Wages, Salaries and Vacation; Benefits. Seller shall pay
to each Transferred Employee all wages, salaries and compensation for accrued
vacation, insurance benefits and COBRA premiums, if applicable, earned by him or
her prior to the Closing Date. Seller shall retain all liability under, and
responsibility for, the Plan listed (or required to be listed) in Disclosure
Schedule 3.13 and Buyer shall have no obligation under or with respect to any
such plan or arrangement.
Article 7. CONDITIONS TO CLOSING
.1 Conditions to Obligations of Seller. The obligations of Seller to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment, at or prior to the Closing, of each of the following
conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of Purchaser contained in this Agreement shall be
true and correct in all material respects as of the Closing, other than such
representations and warranties as are made as of another date, the covenants and
agreements contained in this Agreement to be complied with by Purchaser on or
before the Closing shall have been complied with in all material respects, and
Seller shall have received a certificate from Purchaser to such effect signed by
a duly authorized officer thereof; and
(b) No Proceeding or Litigation. No Action shall have been
commenced or threatened by or before any Governmental Authority against either
Seller or Purchaser, seeking to restrain or materially and adversely alter the
transactions contemplated hereby which in the reasonable, good faith
determination of Seller is likely to render it impossible or unlawful to
consummate the transactions contemplated by this Agreement; provided, however,
that the provisions of this Section 7.02(b) shall not apply if Seller has
solicited or encouraged any such Action.
.2 Conditions to Obligations of Purchaser. The obligations of
Purchaser to consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing, of each of the following
conditions:
(a) Representations, Warranties and Covenants. The
representations and warranties of Seller contained in this Agreement shall be
true and correct in all material respects as of the Closing, other than such
representations and warranties as are made as of another date, the covenants and
agreements contained in this Agreement to be complied with by Seller on or
before the Closing shall have been complied with in all material respects, and
Purchaser shall have received a certificate of Seller to such effect signed by a
duly authorized officer thereof;
(b) No Proceeding or Litigation. No Action shall have been
commenced or threatened by or before any Governmental Authority against either
Seller or Purchaser, seeking to restrain or materially and adversely alter the
transactions contemplated hereby which in the reasonable, good faith
determination of Purchaser is likely to render it impossible or unlawful to
consummate the transactions contemplated by this Agreement; provided, however,
that the provisions of this Section 7.02(b) shall not apply if Purchaser has
solicited or encouraged any such Action;
(c) Resolutions of Seller. Purchaser shall have received a
true and complete copy, certified by the Secretary or an Assistant Secretary of
Seller, of the resolutions duly and validly adopted by the Board of
10
Directors of Seller evidencing its authorization of the execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
and thereby;
(d) Legal Opinion. Purchaser shall have received from ________
___________, an opinion, addressed to Purchaser and dated the Closing Date,
substantially in the form of Exhibit B;
(e) Consents and Approvals. Purchaser and Seller shall have
received, each in form and substance reasonably satisfactory to Purchaser in its
sole and absolute discretion, all authorizations, consents, orders and approvals
of all Governmental Authorities and officials and all third party consents and
estoppel certificates which Purchaser reasonably deems necessary or desirable
for the consummation of the transactions contemplated by this Agreement;
(f) Material Contracts. Purchaser shall have received, each in
form and substance reasonably satisfactory to Purchaser, assignments of each
Material Contract identified in Disclosure Schedule 3.10 which Purchaser
reasonably deems necessary or desirable for the consummation of the transactions
contemplated by this Agreement including, without limitation, all third party
consents required under any Material Contracts; and
(g) Transferred Employees. Transferred Employees shall have
accepted employment with Purchaser.
Article 8. INDEMNIFICATION
.1 Survival of Representations and Warranties. The representations
and warranties of Seller contained in this Agreement, and all statements
contained in the Acquisition Documents, shall survive the Closing until April
30, 2000 insofar as any claim is made by Purchaser for (i) the breach of any
representation or warranty of Seller contained herein; (ii) any claim which
arises out of allegations of personal injury or property damage suffered by any
third party on or prior to the Closing Date; (iii) or activities or omissions
that occur, on or prior to the Closing Date, such representations and warranties
shall, for purposes of such claim by Purchaser, survive until April 30, 2000.
Neither the period of survival nor the liability of Seller with respect to
Seller's representations and warranties shall be reduced by any investigation
made at any time by or on behalf of Purchaser. If written notice of a claim has
been given prior to the expiration of the applicable representations and
warranties by Purchaser to Seller, then the relevant representations and
warranties shall survive as to such claim until the claim has been finally
resolved. No claim may be brought after April 30, 2000.
.2 Indemnification by Seller.
(a) Indemnifiable Losses. Subject to Section 8.02(b),
Purchaser and its Affiliates, officers, directors, employees, agents, successors
and assigns shall be indemnified and held harmless by Seller for any and all
Liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties actually suffered or incurred by them (including,
without limitation, any Action brought or otherwise initiated by any of them),
but not including any indirect, consequential or punitive damages (such
Liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties, including without limitation any such Action, but not
including any indirect, consequential or punitive damages, each a "Loss" and
collectively, "Losses") arising out of or resulting from the following:
(i) the breach of any representation or warranty made by
Seller contained in the Acquisition Documents;
(ii) the breach of any covenant or agreement by Seller
contained in the Acquisition Documents;
(iii) any and all Losses suffered or incurred by Purchaser
by reason of or in connection with any claim or cause of action of any third
party to the extent arising out of any action, inaction, event, condition,
liability or obligation of Seller occurring or existing prior to the Closing;
provided however, that Seller shall be liable for any such Losses arising out of
or related to Year 2000 compliance of products sold by Seller or services
rendered by Seller prior to the Closing including such Losses that arise
following the Closing; and
(iv) liabilities, whether arising before or after the
Closing Date, that are not expressly assumed by Purchaser pursuant to this
Agreement, including, without limitation the Excluded Liabilities, the
Employment Agreement of ▇▇▇▇▇ ▇▇▇▇▇▇ and the Purchase Agreement between The
Judge Group and On Site Solutions, Inc. dated May 31, 1998.
11
(b) Claims; Threshold Amount. Notwithstanding the foregoing,
Seller shall have no liability with respect to the matters described in
paragraph(i) above unless and until the aggregate amount of Losses thereunder of
which Seller receives written notice exceeds $210,000 (the "Threshold Amount").
At such time as the aggregate Losses with respect to matters described in
paragraph(i) exceed the Threshold Amount, Purchaser shall be indemnified to the
full extent such Losses that exceed the Threshold Amount; provided, however,
that Seller shall be liable for any such Losses arising out of any intentional
or fraudulent breach of any representation or warranty to the fullest extent.
(c) Claims; Aggregate Amount. Notwithstanding any other
provision in this Section 8.02 or elsewhere in this Agreement to the contrary,
the aggregate indemnification obligations of Seller hereunder shall not exceed
the Purchase Price; except with respect to any claims arising out of or related
to Year 2000 compliance of Seller's products or services, the aggregate
indemnification obligations of Seller hereunder shall not exceed twice the
Purchase Price and shall include any indirect, consequential or punitive damages
required to be paid by Purchaser to third parties.
.3 Indemnification by Purchaser. Seller and each of its Affiliates,
officers, directors, employees, agents, successors and assigns shall be
indemnified and held harmless by Purchaser for any and all Losses out of or
resulting from:
(a) a breach of any representation, warranty, covenant or
agreement of Purchaser contained in any of the Acquisition Documents which has
not been expressly waived by Seller in writing;
(b) any claim, suit, action or proceeding to the extent the
same pertains to the ownership, organization, operation or conduct of the
Business on or after the Closing; and
(c) all liabilities, obligations, responsibilities and Losses,
attributable to Assumed Liabilities which were not in existence on the Closing
Date, except claims arising out of or related to Year 2000 compliance of
products sold by Seller or services rendered by Seller prior to the Closing
including such Losses that arise following the Closing.
.4 Indemnification Procedures; Rights of Parties. For purposes of
this Section 8.04, "Indemnified Party" shall mean (i) each of Purchaser and its
Affiliates, officers, directors, employees, agents, successors and assigns, when
being indemnified by Seller pursuant to Section 8.02, and (ii) each of the
Seller and its Affiliates, officers, directors, employees, agents, successors
and assigns, when being indemnified by Purchaser pursuant to Section 8.03, and
"Indemnifying Party" shall mean (x) Seller when indemnifying Purchaser and its
Affiliates, officers, directors, employees, agents, successors and assigns
pursuant to Section 8.02, and (y) Purchaser when indemnifying Seller and its
Affiliates, officers, directors, employers, agents, successors and assigns
pursuant to Section 8.03.
(a) An Indemnified Party shall give the Indemnifying Party
notice of any matter which an Indemnified Party has determined has given or
could give rise to a right of indemnification under this Agreement, within
thirty (30) days of such determination, stating the amount of the Loss, if
known, and method of computation thereof, a brief description of the facts upon
which such claim is based and containing a reference to the provisions of this
Agreement in respect of which such right of indemnification is claimed or
arises. If, after the amount of the claim is specified by the Indemnified
Person, the Indemnifying Party objects to any such claim, it may give written
notice to the Indemnified Person within thirty (30) days of the later of receipt
of the Indemnified Person's notice of claim or the specification by the
Indemnified Person of the amount of the claim, advising the Indemnified Person
of its objection. If no such notice is timely received from the Indemnifying
Party by the Indemnified Person, the Indemnified Person will be entitled to
payment from the Indemnifying Party in the amount of the Loss arising out of the
claim specified in its notice of claim. If the Indemnifying Party advises the
Indemnified Person within such thirty (30) day period that it objects to such
claim, the Indemnified Person and the Indemnifying Party shall promptly meet and
use their best efforts to settle the dispute in writing. If the Indemnified
Person and the Indemnifying Party are unable to reach agreement within thirty
(30) days after the Indemnifying Party objects to the claim, then the disputed
portion of the claim shall be submitted to arbitration in accordance with
Section 10.11. If the arbitrator shall determine that the Indemnified Person is
entitled to indemnification with respect to the dispute submitted, the
Indemnified Person will be entitled to obtain payment from the Indemnifying
Party within thirty (30) days in the amount determined by the arbitrator.
12
(b) The obligations and Liabilities of the Indemnifying Party
under this Article 8 with respect to Losses arising from claims of any third
party which are subject to the indemnification provided for in this Article 8
("Third Party Claims") shall be governed by and contingent upon the following
additional terms and conditions: if an Indemnified Party shall receive notice of
any Third Party Claim, the Indemnified Party shall give the Indemnifying Party
notice of such Third Party Claim as soon as possible and in any event within
thirty (30) days of the receipt by the Indemnified Party of such notice;
provided, however, that the failure to provide such notice shall not release the
Indemnifying Party from any of its obligations under this Article 8 except to
the extent the Indemnifying Party is prejudiced by such failure and shall not
relieve the Indemnifying Party from any other obligation or Liability that it
may have to any Indemnified Party otherwise than under this Article 8. If the
Indemnifying Party acknowledges in writing its obligation to indemnify the
Indemnified Party hereunder against any Losses that may result from such Third
Party Claim, then the Indemnifying Party shall be entitled to assume and control
the defense of such Third Party Claim at its expense and through counsel of its
choice if it gives notice of its intention to do so to the Indemnified Party
within five days of the receipt of such notice from the Indemnified Party;
provided, however, that if there exists or is reasonably likely to exist a
conflict of interest that would make it inappropriate in the judgment of the
Indemnified Party, in its reasonable discretion, for the same counsel to
represent both the Indemnified Party and the Indemnifying Party, then the
Indemnified Party shall be entitled to retain its own counsel, in each
jurisdiction for which the Indemnified Party determines counsel is required, at
the expense of the Indemnifying Party. In the event the Indemnifying Party
exercises the right to undertake any such defense against any such Third Party
Claim as provided above, the Indemnified Party shall cooperate with the
Indemnifying Party in such defense and make available to the Indemnifying Party
at the Indemnifying Party's expense, all witnesses, pertinent records, materials
and information in the Indemnified Party's possession or under the Indemnified
Party's control relating thereto as is reasonably required by the Indemnifying
Party. Similarly, in the event the Indemnified Party is, directly or indirectly,
conducting the defense against any such Third Party Claim, the Indemnifying
Party shall cooperate with the Indemnified Party in such defense and make
available to the Indemnified Party, at the Indemnifying Party's expense, all
such witnesses, records, materials and information in the Indemnifying Party's
possession or under the Indemnifying Party's control relating thereto as is
reasonably required by the Indemnified Party. No such Third Party Claim may be
settled by the Indemnifying Party without the prior written consent of the
Indemnified Party.
(c) Notwithstanding anything herein to the contrary, in the
absence of fraud, the rights and remedies provided in Article 8 are the
exclusive rights and remedies of the parties.
.5 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THE
REPRESENTATIONS AND WARRANTIES CONTAINED IN ARTICLE THREE OF THIS AGREEMENT,
SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN
EQUITY, IN RESPECT OF THE BUSINESS. SELLER MAKES NO IMPLIED REPRESENTATION OR
WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND NO
OTHER IMPLIED WARRANTIES WHATSOEVER.
Article 9. MISCELLANEOUS
.1 Expenses. Except as otherwise specified in this Agreement, all
costs and expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall have
occurred.
.2 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
person, or by courier service, cable, telecopy, telegram, or registered or
certified mail (postage prepaid, return receipt requested) to the respective
parties hereto at their addresses set forth on the signature pages to this
Agreement (or at such other address for a party hereto as shall be specified in
a notice given in accordance with this Section 9.02).
.3 Public Announcements. No party to this Agreement shall make, or
cause to be made, any press release or public announcement in respect of this
Agreement or the transactions contemplated hereby or otherwise
13
communicate with any news media without the prior written consent of the other
party and the parties shall cooperate as to the timing and contents of any such
press release or public announcement. No such announcement shall be made at any
time prior to the Closing.
.4 Headings. The descriptive headings contained in this Agreement are
for convenience of reference only and shall not affect in any way the meaning,
construction or interpretation of this Agreement.
.5 Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any Law or public policy, all
other terms and provisions of this Agreement shall nevertheless remain in full
force and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to any
party. Entire Agreement. This Agreement (including the Annexes, Exhibits and
Disclosure Schedules) constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
(including the Letter of Intent, but excluding the Confidentiality Agreement),
representations, undertakings and understandings, both written and oral, between
Seller and Purchaser with respect to the subject matter hereof.
.7 Section 9.06 Assignment. This Agreement may not be assigned by
operation of Law or otherwise without the express written consent of Seller and
Purchaser (which consent may be granted or withheld in the sole discretion of
Seller and Purchaser); provided, however, that Purchaser may assign its rights
under this Agreement to an Affiliate of Purchaser without the consent of Seller
and without diminishing Purchaser's obligations hereunder.
.8 No Third Party Beneficiaries. This Agreement shall be binding upon
and inure solely to the benefit of the parties hereto and their permitted
assigns and nothing herein, express or implied, is intended to or shall confer
upon any other Person, including, without limitation, any union or any employee
or former employee of Seller, any legal or equitable right, benefit or remedy of
any nature whatsoever, including, without limitation, any rights of employment
for any specified period, under or by reason of this Agreement.
.9 Amendment. This Agreement may not be amended, modified or
supplemented except by an instrument in writing signed by, or on behalf of,
Seller and Purchaser.
.10 Governing Law. IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS OF
EACH PARTY ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS
EXECUTED IN AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE, WITHOUT REGARD TO
THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.
.11 Arbitration. The parties shall submit any dispute concerning the
interpretation of or the enforcement of rights and duties under this Agreement
to final and binding arbitration pursuant to the American Arbitration
Association. At the request of any party, the arbitrators, attorneys, parties to
the arbitration, witnesses, experts, court reports, or other persons present at
the arbitration shall agree in writing to maintain the strict confidentiality of
the arbitration proceedings. Any dispute concerning the interpretation of or the
enforcement of rights and duties under this Agreement brought by Seller shall be
conducted by a single, neutral arbitrator, appointed in accordance with the
Commercial Arbitration Rules of the American Arbitration Association in the
County of Orange, California. The award of the arbitrator(s) in connection with
such dispute shall be enforceable according to the applicable provisions of the
California Code of Civil Procedure. Any dispute concerning the interpretation or
the enforcement of rights and duties under this Agreement brought by Purchaser
shall be conducted by a single, neutral arbitrator, appointed in accordance with
the Commercial Arbitration Rules of the American Arbitration Association in
▇▇▇▇▇▇▇▇▇▇ County, Pennsylvania. The award of the arbitrator(s) in connection
with such dispute shall be enforceable according to the application provisions
of the Pennsylvania Code of Civil Procedure. The arbitrator(s) may award damages
and/or permanent injunctive relief, but in no event shall the arbitrator(s) have
the authority to award punitive or exemplary damages. Notwithstanding the
foregoing, a party may apply to a court of competent jurisdiction for relief in
the form of a temporary restraining order or preliminary injunction, or other
provisional remedy pending final determination of a claim through arbitration in
accordance with the paragraph. If proper notice of any hearing has been given,
the arbitrator(s) will have full power to proceed to take evidence or to perform
any other acts necessary to arbitrate the matter in the absence of any party who
fails to appear.
14
.12 Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, Seller and Purchaser have caused this
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
FILENET CORPORATION ON SITE SOLUTIONS, INC.
By: /s/▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/▇▇▇▇▇▇ ▇. Judge, Jr.
--------------- -----------------------
Title: Sr. Vice-President Title: Chief Executive Officer
The Judge Group, Inc. (the "undersigned") hereby
unconditionally, absolutely and irrevocably guarantees to Purchaser the
performance by Seller of all of Seller's obligations contained in this Agreement
including without limitation Sections 2.02 and 2.03, subject only to the terms,
conditions and limitations contained herein. The undersigned hereby waives
presentation, demand of payment and protest of any such obligation of Seller,
and further waives any right to require that resort be had by Purchaser to
Seller with respect to any such obligation before demanding performance thereof
by the undersigned.
The undersigned further agrees that this guaranty shall inure
to the benefit of and may be enforced by Purchaser, its successors and permitted
assigns, and shall be binding upon and enforceable against the undersigned and
its permitted successors or assigns and that this guaranty shall remain in full
force and effect as to any and all modifications of the Agreement that may be
effected in accordance with the terms thereof after the date hereof.
THE JUDGE GROUP, INC.
By: /s/▇▇▇▇▇▇ ▇. Judge, Jr.
-----------------------
Title: Chief Executive Officer
ANNEX A
DESCRIPTION OF BUSINESS
On-Site Solutions, Inc. is engaged in the systems integration, document
management, and professional services business.
ANNEX B
INTELLECTUAL PROPERTY
The Intellectual Property is defined to include but not be limited to the
following:
DocShop
ViewShop
Symphony
The following customers of Judge IMS have a right to use the intellectual
property owned by On-Site:
Stone and ▇▇▇▇▇▇▇
Provident
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇
15
