ASSET PURCHASE AGREEMENT dated as of March 25, 2010 by and between BioClinica, Inc. and TranSenda International, LLC
Exhibit 2.1
dated as of March 25, 2010
by and between
BioClinica, Inc.
and
TranSenda International, LLC
TABLE OF CONTENTS
[TO BE UPDATED]
[TO BE UPDATED]
Page | ||||
ARTICLE I DEFINITIONS |
1 | |||
1.1 Definitions |
1 | |||
ARTICLE II PURCHASE AND SALE |
5 | |||
2.1 Purchase and Sale of the Purchased Assets |
5 | |||
2.2 Excluded Assets |
6 | |||
2.3 Assumed Liabilities |
7 | |||
2.4 Excluded Liabilities |
7 | |||
2.5 Purchase Price; Escrow |
8 | |||
2.6 Purchase Price Adjustment |
8 | |||
2.7 Allocation |
11 | |||
2.8 Consents |
12 | |||
ARTICLE III CLOSING |
13 | |||
3.1 Closing Date |
13 | |||
3.2 Deliveries by Seller at the Closing |
13 | |||
3.3 Deliveries by Buyer at the Closing |
14 | |||
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER |
14 | |||
4.1 Organization and Good Standing |
15 | |||
4.2 Authority and Enforceability |
15 | |||
4.3 No Conflicts; Consents |
15 | |||
4.4 Financial Statements |
16 | |||
4.5 No Undisclosed Liabilities |
16 | |||
4.6 Accounts Receivable |
17 | |||
4.7 Taxes |
17 | |||
4.8 Compliance with Law |
20 | |||
4.9 Business Authorizations |
20 | |||
4.10 Title to Personal Properties |
21 | |||
4.11 Condition of Tangible Assets |
21 | |||
4.12 Real Property |
21 | |||
4.13 Intellectual Property |
22 | |||
4.14 Absence of Certain Changes or Events |
27 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
4.15 Contracts |
28 | |||
4.16 Sufficiency of Purchased Assets |
31 | |||
4.17 Litigation |
31 | |||
4.18 Employee Benefits |
32 | |||
4.19 Labor and Employment Matters |
34 | |||
4.20 Environmental |
35 | |||
4.21 Insurance |
38 | |||
4.22 Product Warranty |
39 | |||
4.23 Suppliers and Customers |
40 | |||
4.24 Solvency |
40 | |||
4.25 Brokers or Finders |
41 | |||
4.26 Completeness of Disclosure |
41 | |||
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER |
41 | |||
5.1 Organization and Good Standing |
41 | |||
5.2 Authority and Enforceability |
41 | |||
5.3 No Conflicts; Consents |
42 | |||
5.4 Availability of Funds |
42 | |||
5.5 Brokers or Finders |
42 | |||
5.6 Solvency |
42 | |||
ARTICLE VI COVENANTS OF BUYER AND SELLER |
43 | |||
6.1 Regulatory Approvals |
43 | |||
6.2 Public Announcements |
43 | |||
6.3 Names |
43 | |||
6.4 Employees |
44 | |||
6.5 Taxes |
45 | |||
6.6 Audited Financial Statements |
46 | |||
6.7 Bulk Sales Laws |
46 | |||
6.8 Discharge of Business Obligations After Closing |
46 | |||
6.9 Access to Books and Records |
46 | |||
6.10 Confidentiality |
47 | |||
6.11 Release of Liens |
47 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||||
6.12 Restrictive Covenants |
48 | |||
6.13 Lock-up |
49 | |||
6.14 Further Assurances |
49 | |||
ARTICLE VII CONDITIONS TO CLOSING |
49 | |||
7.1 Conditions to Obligations of Buyer and Seller |
49 | |||
7.2 Conditions to Obligation of Buyer |
50 | |||
7.3 Conditions to Obligation of Seller |
52 | |||
ARTICLE VIII INDEMNIFICATION |
52 | |||
8.1 Survival |
52 | |||
8.2 Indemnification by Seller |
53 | |||
8.3 Indemnification by Buyer |
55 | |||
8.4 Indemnification Procedures for Third Party Claims |
55 | |||
8.5 Indemnification Procedures for Non-Third Party Claims |
58 | |||
8.6 Escrow Amount |
59 | |||
8.7 Effect of Investigation; Waiver |
59 | |||
8.8 Sole and Exclusive Remedy |
59 | |||
8.9 No Double Recovery |
59 | |||
ARTICLE IX MISCELLANEOUS |
60 | |||
9.1 Notices |
60 | |||
9.2 Amendments and Waivers |
61 | |||
9.3 Expenses |
61 | |||
9.4 Successors and Assigns |
61 | |||
9.5 Governing Law |
62 | |||
9.6 Consent to Jurisdiction |
62 | |||
9.7 Counterparts |
62 | |||
9.8 Third Party Beneficiaries |
62 | |||
9.9 Entire Agreement |
63 | |||
9.10 Captions |
63 | |||
9.11 Severability |
63 | |||
9.12 Specific Performance |
63 | |||
9.13 Interpretation |
63 |
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TABLE OF CONTENTS
(continued)
(continued)
Page | ||
EXHIBITS |
||
Exhibit A
|
Xxxx of Sale | |
Exhibit B
|
Assignment and Assumption Agreement | |
Exhibit C
|
Confidentiality, Assignment of Invention, Non-Competition
and Non-Solicitation Agreement (Transferred Employees) |
|
Exhibit D
|
Opinion of Seller’s counsel | |
Exhibit E
|
Form of Escrow Agreement | |
Exhibit F
|
Form of Registration Rights Agreement | |
SCHEDULES |
||
Schedule 2.1(d)
|
Assigned Contracts | |
Schedule 2.1(e)
|
Accounts Receivable | |
Schedule 2.2(d)
|
Excluded Assets | |
Schedule 2.3 (a)
|
Assumed Liabilities |
iv
ASSET PURCHASE AGREEMENT, dated as of March 25, 2010 (the “Agreement”), by and between
BioClinica, Inc., a Delaware corporation (the “Buyer”), and TranSenda International, LLC, a
Washington limited liability company (“Seller”).
WHEREAS, Seller is engaged in the business of developing, marketing, selling and distributing
software to and providing services for the pharmaceutical, biotechnology and medical device
industries (as currently conducted or currently in development by Seller, the “Business”); and
WHEREAS, the parties desire that Seller sell, assign, transfer, convey and deliver to Buyer,
and that Buyer purchase and acquire from Seller, all of the right, title and interest of Seller in
and to the Purchased Assets (as hereinafter defined), and that Buyer assume the Assumed Liabilities
(as hereinafter defined), upon the terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the respective representations
and warranties, covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. When used in this Agreement, the following terms shall have the
meanings assigned to them in this ARTICLE I or in the applicable Section of this
Agreement to which reference is made in this ARTICLE I.
“Accounts Receivable” means (a) any trade accounts receivable and other rights to payment from
customers of the Business (whether billed or unbilled, or accrued and not yet invoiced) and (b) any
other account or note receivable Related to the Business, together with, in each case, the full
benefit of any security interest of Seller therein.
“Affiliate” means, with respect to any specified Person, any other Person directly or indirectly
controlling, controlled by or under common control with such specified Person.
“Ancillary Agreements” means the Xxxx of Sale, the Assignment and Assumption Agreement, the Escrow
Agreement and the other agreements, instruments and documents delivered at the Closing.
“Audit” means the audit of Seller’s financial statements performed pursuant to
Section 6.6.
“Authorization” means any authorization, approval, consent, certificate, license, permit or
franchise of or from any Governmental Entity or pursuant to any Law.
“Benefit Plan” means (a) any “employee benefit plan” as defined in ERISA Section 3(3), including
any (i) nonqualified deferred compensation or retirement plan or arrangement which is an Employee
Pension Benefit Plan (as defined in ERISA Section 3(2)), (ii) qualified defined contribution
retirement plan or arrangement which is an Employee Pension Benefit Plan, (iii) qualified defined
benefit retirement plan or arrangement which is an Employee Pension Benefit Plan (including any
Multiemployer Plan (as defined in ERISA Section 3(37)) and (iv) Employee Welfare Benefit Plan (as
defined in ERISA Section 3(1)) or material fringe benefit plan or program, or (b) stock purchase,
stock option, severance pay, employment, change-in-control, vacation pay, company awards, salary
continuation, sick leave, excess benefit, bonus or other incentive compensation, employer-provided
life insurance, or other employee benefit plan, contract, program, policy or other arrangement,
whether or not subject to ERISA.
“Books and Records” means books of account, general, financial, warranty and shipping records,
invoices, supplier lists, product specifications, product formulations, drawings, correspondence,
engineering, maintenance, operating and production records, advertising and promotional materials,
credit records of customers and other documents, records and files, in each case Related to the
Business, including books and records relating to Seller Intellectual Property and the employee and
personnel records of the Transferred Employees.
“Business Day” means a day other than a Saturday, Sunday or other day on which banks located in
Seattle, Washington are authorized or required by Law to close.
“Business Employee” means any individual employed by Seller in or in connection with the Business.
“Capital Stock” means (a) in the case of a corporation, its shares of capital stock, (b) in the
case of a partnership or limited liability company, its partnership or membership interests or
units (whether general or limited), and (c) any other interest that confers on a Person the right
to receive a share of the profits and losses of, or distribution of assets, of the issuing entity.
“Cash” is defined in Section 2.2(e).
“Change of Control” means, with respect to any entity (i) acquisition of beneficial ownership of
either (a) 50% or more of the outstanding shares of common stock of the company, or (b) 50% or
more of the total voting power of the then-outstanding voting securities entitled to vote generally
on the election of directors, (ii) a reorganization, merger, consolidation, sale of all or
substantially all of the assets of the company, or the acquisition of the assets or stock of
another entity, unless following such business combination the beneficial owners of the outstanding
shares of common stock of the company and the outstanding company voting securities own, directly
or indirectly, 50% of the outstanding common stock and combined voting power of the surviving
entity (including a surviving entity that owns the company or all or substantially all of the
company’s assets directly or through a subsidiary) in substantially the same proportions
2
as their ownership prior to the business combination, or (iii) approval by the stockholders of a
complete liquidation or dissolution of the company.
“Charter Documents” means, with respect to any entity, the certificate of incorporation, the
articles of incorporation, by-laws, articles of organization, limited liability company agreement,
partnership agreement, formation agreement, joint venture agreement or other similar organizational
documents of such entity (in each case, as amended).
“Code” means the Internal Revenue Code of 1986.
“Common Stock” means the unregistered common stock of Buyer, $0.00025 par value per share, or such
other consideration or securities as may be exchanged for Common Stock upon a Change of Control of
the Buyer.
“Contract” means any agreement, contract, license, lease, commitment, arrangement or understanding,
written or oral, including any sales order or purchase order.
“Debt Securities” means (a) securities evidencing Indebtedness, and (b) options, warrants, purchase
rights, subscription rights, conversion rights, exchange rights or other Contracts that, directly
or indirectly, could require the issuer thereof to issue, sell or otherwise cause to become
outstanding the securities described in clause (a).
“Equipment” means machinery, fixtures, furniture, supplies, accessories, materials, equipment,
parts, automobiles, trucks, vehicles, tooling, tools, molds, office equipment, computers,
telephones and all other items of tangible personal property, in each case Related to the Business.
“Equity Securities” means (a) shares of Capital Stock and (b) options, warrants, purchase rights,
subscription rights, conversion rights, exchange rights or other Contracts that, directly or
indirectly, could require the issuer thereof to issue, sell or otherwise cause to become
outstanding shares of such issuer’s Capital Stock.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any entity which is a member of a “controlled group of corporations” with,
under “common control” with or a member of an “affiliated services group” with, Seller, as defined
in Section 414(b), (c), (m) or (o) of the Code.
“GAAP” means generally accepted accounting principles in the United States.
“Governmental Entity” means any entity or body exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to United States federal, state, local, or
municipal government, foreign, international, multinational or other government, including any
department, commission, board, agency, bureau, subdivision, instrumentality, official or other
regulatory, administrative or judicial authority thereof, and any non-governmental regulatory body
to the extent that the rules and regulations or orders of such body have the force of Law.
3
“Indebtedness” means any of the following: (a) any indebtedness for borrowed money, (b) any
obligations evidenced by bonds, debentures, notes or other similar instruments, (c) any obligations
to pay the deferred purchase price of property or services, except trade accounts payable and other
current Liabilities arising in the ordinary course of the Business, (d) any obligations as lessee
under capitalized leases, (e) any indebtedness created or arising under any conditional sale or
other title retention agreement with respect to acquired property, (f) any obligations, contingent
or otherwise, under acceptance credit, letters of credit or similar facilities, and (g) any
guaranty of any of the foregoing.
“Indemnitee” means any Person that is seeking indemnification from an Indemnitor pursuant to the
provisions of this Agreement.
“Indemnitor” means any party hereto from which any Indemnitee is seeking indemnification pursuant
to the provisions of this Agreement.
“Inventory” means all raw materials, work-in-process, finished goods, supplies, spare parts and
other inventories Related to the Business, including all such items (a) located on the Real
Property, (b) in transit from suppliers of the Business, (c) held for delivery by suppliers of the
Business, or (d) held on consignment by third parties.
“Knowledge” of Seller means, with respect to any fact or matter, the actual knowledge of the
members of the Board of Managers, and of Buyer, with respect to any fact or matter, the actual
knowledge of its director and executive officers.
“Law” means any statute, law (including common law), constitution, treaty, ordinance, code, order,
decree, judgment, rule, regulation and any other binding requirement or determination of any
Governmental Entity.
“Lien” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security
interest, adverse claim or other encumbrance in respect of such property or asset.
“Order” means any award, injunction, judgment, decree, order, ruling, subpoena or verdict or other
decision issued, promulgated or entered by or with any Governmental Entity of competent
jurisdiction.
“Permitted Liens” means (a) Liens for current real or personal property Taxes not yet due and
payable, or which are being disputed in good faith, in each case with respect to which Seller
maintains adequate reserves, (b) workers’, carriers’ and mechanics’ or other like Liens incurred in
the ordinary course of the Business with respect to which payment is not due and that do not impair
the conduct of the Business or the present or proposed use of the affected property and (c) Liens
that are immaterial in character, amount, and extent and which do not detract from the value or
interfere with the present or proposed use of the properties they affect.
“Person” means an individual, a corporation, a partnership, a limited liability company, a trust,
an unincorporated association, a Governmental Entity or any other entity or body.
4
“Pre-Closing Environmental Liabilities” means Liabilities arising out of (a) the ownership or
operation of the Business at any time on or prior to the Closing or (b) the ownership, operation or
condition of the Real Property or any other real property currently or formerly owned, operated or
leased by Seller Related to the Business at any time on or prior to the Closing, in each case to
the extent based upon or arising out of (i) Environmental Law, (ii) a failure to obtain, maintain
or comply with any Environmental Permit, (iii) a Release of any Hazardous Substance, or (iv) the
use, generation, storage, transportation, treatment, sale or other off-site disposal of Hazardous
Substances.
“Related to the Business” means used, held for use or acquired or developed for use in the Business
or otherwise arising out of the operation or conduct of the Business.
“Subsidiary” or “Subsidiaries” means, with respect to any party, any Person, of which (i) such
party or any other Subsidiary of such party is a general partner (excluding partnerships, the
general partnership interests of which held by such party or any Subsidiary of such party do not
have a majority of the voting interest in such partnership) or (ii) at least a majority of the
securities or other interests having by their terms ordinary voting power to elect a majority of
the Board of Directors or others performing similar functions with respect to such Person is
directly or indirectly owned or controlled by such party and/or by any one or more of its
Subsidiaries.
“Transaction Expenses” means all expenses incurred by the Seller in connection with this Agreement,
for itself or on behalf of Seller’s members, and the consummation of the transactions contemplated
hereby, including, but not limited to, any and all legal, accounting, financial, advisory and
consulting fees and expenses incurred as of Closing Date, whether or not paid as of Closing Date,
and whether or not reflected in the Financial Statements, but excluding expenses that would have to
be incurred by the Seller even in the absence of the transactions contemplated by this Agreement
that are otherwise already included in the Assumed Liabilities. Notwithstanding anything to the
contrary in this definition, “Transaction Expenses” does not include any expenses related to the
Audit up to $35,000.
“WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988.
“$” means United States dollars.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale of the Purchased Assets. Upon the terms and subject to the
conditions of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey and
deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, free and clear of Liens
except for Permitted Liens, the entire right, title and interest of Seller in, to and under all of
the assets, properties and rights of every kind and description, real, personal and mixed, tangible
and intangible, wherever situated, that are Related to the Business other than the Excluded Assets
(the “Purchased Assets”). The
5
Purchased Assets shall include, but are not limited to, the following assets, properties and
rights:
(a) all Inventory;
(b) all Equipment;
(c) all Seller Intellectual Property;
(d) all Contracts Related to the Business other than Excluded Contracts, including In-Bound
Licenses, Out-Bound Licenses and Work Product Agreements (as such terms are defined in
Section 4.14), including, but not limited to, those that are set forth on
Schedule 2.1 (d) (the “Assigned Contracts”);
(e) all Accounts Receivable, including, but not limited to, those that are set forth on
Schedule 2.1 (e);
(f) all Business Authorizations (to the extent transferable);
(g) all Books and Records relating to the Purchased Assets;
(h) all claims, causes of action, choses in action, rights of recovery and rights under all
warranties, representations and guarantees made by suppliers of products, materials or equipment,
or components thereof, arising from or relating to the other Purchased Assets or the Assumed
Liabilities;
(i) subject to Section 8.9, all insurance benefits, including rights and proceeds,
arising from or relating to the other Purchased Assets or the Assumed Liabilities (to the extent
recoverable after the Closing, but with no obligation on the part of Seller to maintain or renew
any Policies);
(j) all prepaid expenses Related to the Business;
(k) all security deposits, xxxxxxx deposits and all other forms of deposit or security placed
with or by Seller for the performance of an Assigned Contract; and
(l) all goodwill of the Business as going concern.
2.2 Excluded Assets. The Purchased Assets do not include, and Seller is not selling,
assigning, transferring, conveying or delivering, and neither Buyer nor any Subsidiary of Buyer is
purchasing, acquiring or accepting from Seller, any of the assets, properties or rights set forth
in this Section 2.2 (collectively, the “Excluded Assets”):
(a) all Contracts that are not Assigned Contracts (the “Excluded Contracts”);
6
(b) the corporate seals, Charter Documents, minute books, stock books, Tax Returns, books of
account or other records having to do with the corporate organization of Seller;
(c) all Policies and, subject to Section 2.1(i) hereof, all rights and benefits
thereunder;
(d) the assets, properties and rights specifically set forth on
Schedule 2.2 (d);
(e) all cash, cash equivalents and bank accounts of Seller (“Cash”);
(f) the shares of Capital Stock of Seller; and
(g) the rights which accrue or will accrue to Seller under this Agreement and the Ancillary
Agreements.
2.3 Assumed Liabilities. Upon the terms and subject to the conditions of this
Agreement, Buyer shall assume effective as of the Closing, and from and after the Closing Buyer
shall pay, discharge or perform when due, as appropriate, only the following Liabilities of Seller
(the “Assumed Liabilities”), and no other Liabilities:
(a) all accounts payable to trade creditors of the Business that are unpaid and not delinquent
at the Closing Date and that either (i) are reflected on the Balance Sheet or (ii) arose in the
ordinary course of the Business between the Balance Sheet Date and the Closing Date and are set
forth on Schedule 2.3 (a);
(b) all Liabilities in respect of the Assigned Contracts but only to the extent that such
Liabilities thereunder arise after the Closing Date and do not arise from any failure to perform,
improper performance, warranty or other breach, default or violation by Seller on or prior to the
Closing;
(c) all Liability for vacation and sick leave accrued as of the Closing Date payable to
Transferred Employees as set forth on Schedule 2.3(c); and
(d) all Liabilities and obligations arising as a result of the operation of the Business, or
as a result of the as a result of the ownership, operation or use of the Purchased Assets, after
the Closing.
2.4 Excluded Liabilities. Neither Buyer nor any of its Affiliates shall assume any
Liabilities of Seller (such unassumed Liabilities, the “Excluded Liabilities”) other than those
specifically set forth in Section 2.3. Without limiting the generality of the
foregoing, in no event shall Buyer or any of its Affiliates assume or incur any Liability in
respect of, and Seller shall remain bound by and liable for, and shall pay, discharge or perform
when due, the following Liabilities of Seller:
7
(a) all Liabilities for (i) Taxes relating to the Business or the ownership, operation or use
of the Purchased Assets for any Pre-Closing Tax Period and (ii) Taxes of Seller or any Affiliate of
Seller;
(b) all Liabilities in respect of the Excluded Contracts and other Excluded Assets;
(c) all product Liability, warranty and similar claims for damages or injury to person or
property, claims of infringement of Intellectual Property Rights and all other Liabilities,
regardless of when made or asserted, which arise out of any events occurring or actions taken or
omitted to be taken by Seller, or otherwise arising out of or incurred in connection with the
conduct of the Business, on or before the Closing Date;
(d) all Pre-Closing Environmental Liabilities;
(e) all Indebtedness of the Business incurred prior to the Closing;
(f) all Liabilities under Seller Benefit Plans, including accrued payroll, except vacation and
sick leave for Transferred Employees as set forth on Schedule 2.3(c);
(g) all Transaction Expenses of Seller; and
(h) all Liabilities arising out of or incurred in connection with the negotiation, preparation
and execution of this Agreement and the Ancillary Agreements and the consummation of the
transactions contemplated hereby and thereby, including Taxes and fees and expenses of Seller’s
counsel, accountants and other experts but excluding the costs of the Audit up to $35,000.
2.5 Purchase Price; Escrow.
(a) The consideration to be paid by Buyer to Seller for the Purchased Assets and the Assumed
Liabilities shall be (i) Five Hundred Seventy-Seven Thousand Nine Hundred Sixty (577,960) shares of
Common Stock (the “Purchase Price”), subject to further adjustment after the Closing as set forth
in Section 2.6, and subject to the Indemnity Escrow Amount set forth in
Section 2.5 (b) below, and (ii) the assumption of the Assumed Liabilities.
(b) At the Closing, Buyer shall deposit with an escrow agent approved by the Buyer (the
“Escrow Agent”) the following:
(i) A number of shares of Common Stock equal to 15% of the Purchase Price receivable by the
Seller (the “Indemnity Escrow Amount,” to be held by such Escrow Agent for the period of twelve
months following the Closing Date and pursuant to the terms of the Escrow Agreement in the form
attached hereto as Exhibit E.
(ii) If the Indemnity Escrow Amount is not used for the intended purpose, such amounts shall
be released by the Escrow Agent pursuant to the terms of the Escrow Agreement.
8
(c) Buyer shall be responsible for the costs of preparation of the Escrow Agreement and all
fees due to the Escrow Agent.
(d) The Common Stock shall be subject to the Registration Rights Agreement attached hereto as
Exhibit F.
2.6 Purchase Price Adjustment.
(a) For purposes of this Section 2.6, the following terms shall have the meanings
assigned to them in this Section 2.6 (a):
(i) “Accounting Principles” means GAAP applied on a basis consistent with its application in
the preparation of the Balance Sheet.
(ii) “Base Amount” means zero dollars ($0).
(iii) “Closing Assets” means all assets, excluding cash, net of applicable reserves, of the
Business, excluding intangible assets (such intangible assets to include, without limitation,
goodwill, licenses, patents, trademarks, trade names, copyrights, capitalized software and
organizational costs, licenses and franchises) as of the Closing Date that are Purchased Assets,
calculated in accordance with the Accounting Principles.
(iv) “Closing Liabilities” means all Liabilities of the Business, including deferred revenue,
as of the Closing Date, that are also Assumed Liabilities, calculated by Seller in accordance with
the Accounting Principles.
(v) “Closing Net Working Capital” means Closing Assets minus Closing Liabilities.
(vi) “Estimated Closing Net Working Capital” means Seller’s good faith estimate of Closing Net
Working Capital as set forth in the Estimated Closing Net Working Capital Statement.
(vii) “Estimated Closing Net Working Capital Statement” means a statement of Seller’s good
faith estimate of the Estimated Closing Net Working Capital that is prepared by Seller in
accordance with the Accounting Principles.
(viii) “Final Closing Net Working Capital” means the Closing Net Working Capital (A) as shown
in the Final Closing Net Working Capital Statement delivered by Buyer to Seller pursuant to
Section 2.6(c), if no Notice of Objection with respect thereto is timely delivered by Buyer to
Seller pursuant to Section 2.6 (b); or (B) if a Notice of Objection is so delivered,
(1) as agreed by Buyer and Seller pursuant to Section 2.6 (c) or (2) in the
absence of such agreement, as shown in the Independent Expert’s calculation delivered pursuant to
Section 2.6 (c).
(ix) “Final Closing Net Working Capital Statement” means an unaudited statement of Closing Net
Working Capital that is prepared by Buyer in
9
accordance with the Accounting Principles, which will include a certification of Buyer’s
calculation of the Closing Net Working Capital setting forth in reasonable detail Buyer’s basis
therefor, as well as a certification of Buyer’s calculation of those amounts set forth in Section
2.6 (d) below, if any.
(b) Within thirty (30) days following the Closing, Buyer shall prepare and deliver to the
Seller the Final Closing Net Working Capital Statement. Seller shall have until the expiration of
thirty (30) days following its receipt from Buyer of the Final Closing Net Working Capital
Statement to review such statement (the “Review Period”). If Seller disagrees with Buyer’s
computation of Final Closing Net Working Capital, Seller may, on or prior to the last day of the
Review Period, deliver a notice to Buyer (the “Notice of Objection”), which sets forth its
objections to Seller’s calculation of Closing Net Working Capital. Any Notice of Objection shall
specify those items or amounts with which Seller disagrees, together with a detailed written
explanation of the reasons for disagreement with each such item or amount, and shall set forth
Seller’s calculation of Closing Net Working Capital based on such objections. To the extent not
set forth in the Notice of Objection, Seller shall be deemed to have agreed with Buyer’s
calculation of all other items and amounts contained in the Closing Net Working Capital Statement.
(c) Unless Seller delivers the Notice of Objection to Buyer within the Review Period, Seller
shall be deemed to have accepted Buyer’s calculation of Closing Net Working Capital and the Closing
Net Working Capital Statement shall be final, conclusive and binding. If Seller delivers the
Notice of Objection to Buyer within the Review Period, Buyer and Seller shall, during the thirty
(30) days following such delivery or any mutually agreed extension thereof, use their commercially
reasonable efforts to reach agreement on the disputed items and amounts in order to determine the
amount of Closing Net Working Capital. If, at the end of such period or any mutually agreed
extension thereof, Buyer and Seller are unable to resolve their disagreements, they shall jointly
retain and refer their disagreements to a nationally recognized independent accounting firm
mutually acceptable to Buyer and Seller (the “Independent Expert”). The parties shall instruct the
Independent Expert promptly to review this Section 2.6 and to determine solely with
respect to the disputed items and amounts so submitted whether and to what extent, if any, the
Closing Net Working Capital set forth in the Closing Net Working Capital Statement requires
adjustment. The Independent Expert shall base its determination solely on written submissions by
Buyer and Seller and not on an independent review. Buyer and Seller shall make available to the
Independent Expert all relevant books and records and other items reasonably requested by the
Independent Expert. The parties shall request that the Independent Expert deliver to Buyer and
Seller, as promptly as practicable but in no event later than forty-five (45) days after its
retention, a report which sets forth its resolution of the disputed items and amounts and its
calculation of Closing Net Working Capital; provided that in no event shall Closing
Net Working Capital as determined by the Independent Expert be less than Buyer’s calculation of
Closing Net Working Capital set forth in the Closing Net Working Capital Statement nor more than
Seller’s calculation of Closing Net Working Capital set forth in the Notice of Objection. The
decision of the Independent Expert shall be final, conclusive and binding on the parties. The costs
and expenses of the Independent Expert shall be allocated between the parties based upon the
percentage which the portion of the
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contested amount not awarded to each party bears to the amount actually contested by such
party. Each party agrees to execute, if requested by the Independent Expert, a reasonable
engagement letter, including customary indemnities in favor of the Independent Expert.
(d) Within three (3) Business Days after the Final Closing Net Working Capital has been
determined pursuant to this Section 2.6, if Final Closing Net Working Capital is
negative, Seller shall instruct the Escrow Agent to release from the Escrow Amount and pay to
Buyer, as an adjustment to the Purchase Price, on a dollar for dollar basis, in the manner provided
below and in the Escrow Agreement, such number of shares of Common Stock having an aggregate value
equal to the mathematical absolute value of the Final Closing Net Working Capital (the “Deficit
Amount”); provided, however, that to the extent the Deficit Amount exceeds the
Indemnity Escrow Amount (the “Remaining Balance”), then the Remaining Balance shall be returned to
the Buyer from the Seller.
(e) Within three (3) Business Days after the Final Net Working Capital has been determined
pursuant to this Section 2.6, if the Final Closing Net Working Capital is positive,
Buyer shall pay to Seller, as an adjustment to the Purchase Price, on a dollar for dollar basis,
such number of shares of Common Stock having an aggregate value equal to the Final Closing Net
Working Capital (the “Excess Amount”). Notwithstanding anything to the contrary in this
Section 2.6 (e) or in Section 2.6 (d), if the
mathematical absolute value of the Deficit Amount or Excess Amount is less than $25,000, no payment
will be made pursuant to this Section 2.6, and the Purchase Price will not be adjusted.
(f) To the extent that Buyer is entitled to receive any amount from the Escrow Amount or from
Seller pursuant to Section 2.6(d) or Section 2.6(e) or if Buyer is required
to pay Seller the Excess Amount, then for the purposes of determining the number of shares of
Common Stock to be included in such amount, the shares of Common Stock shall be valued at a price
per share equal to $4.325560.
2.7 Allocation. As soon as reasonably practicable following the Closing, Buyer shall
deliver to Seller an allocation statement setting forth Buyer’s allocation of the Purchase Price
for Tax purposes pursuant to Section 1060 of the Code and any other applicable Tax Laws (as the
same may be revised pursuant to the following sentence, the “Allocation Statement”). In the event
that the Purchase Price is adjusted pursuant to Section 2.6, Buyer shall deliver to
Seller a revised Allocation Statement as soon as reasonably practicable following the determination
of Final Closing Net Working Capital. Except as otherwise required by Law, Buyer and Seller shall
file all Tax Returns (such as IRS Form 8594 or any other forms or reports required to be filed
pursuant to Section 1060 of the Code or any comparable provisions of Law (“Section 1060 Forms”)) in
a manner that is consistent with the Allocation Statement and refrain from taking any action
inconsistent therewith. Buyer and Seller shall cooperate in the preparation of Section 1060 Forms
and file such Section 1060 Forms timely and in the manner required by applicable Law. Buyer and
Seller agree to treat any payments made pursuant to the indemnification provisions of this
Agreement as an adjustment to the Purchase Price for
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Tax purposes. Buyer agrees that the allocation of the Purchase Price, in excess of the book
value of the Closing Assets, shall be allocated to Class VI assets and Class VII assets as defined
in IRC Reg 1.338-6(b).
2.8 Consents.
(a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not
constitute an agreement to sell, assign, transfer, convey or deliver any Purchased Asset or any
benefit arising under or resulting from such Purchased Asset if the sale, assignment, transfer,
conveyance or delivery thereof, without the Consent of a third party, (i) would constitute a breach
or other contravention of the rights of such third party, (ii) would be ineffective with respect to
any party to a Contract concerning such Purchased Asset, or (iii) would, upon transfer, in any way
adversely affect the rights of Buyer under such Purchased Asset. If the sale, assignment,
transfer, conveyance or delivery by Seller to, or any assumption by Buyer of, any interest in, or
Liability under, any Purchased Asset requires the Consent of a third party, then such sale,
assignment, transfer, conveyance, delivery or assumption shall be subject to such Consent being
obtained. Subject to Section 2.8 (b), to the extent any Assigned Contract may
not be assigned to Buyer by reason of the absence of any such Consent (a “Restricted Contract”),
except as set forth in this Section 2.8, Buyer shall not be required to assume any
Assumed Liabilities arising under such Restricted Contract.
(b) To the extent that any Consent in respect of a Restricted Contract or any other Purchased
Asset shall not have been obtained on or before the Closing Date, Buyer may elect to proceed with
the Closing, in which case, Seller shall continue to use reasonable best efforts to assist Buyer in
obtaining any such Consent after the Closing Date until such time as it shall have been obtained
(or refusal to give such Consent shall have been made by the other party to such Restricted
Contract). Buyer shall pay and discharge, and shall indemnify and hold harmless, Seller from and
against any and all out-of-pocket costs of seeking to obtain or obtaining any such Consent after
the Closing Date. As soon as a Consent for the sale, assignment, transfer, conveyance, delivery or
assumption of a Restricted Contract or other Purchased Asset is obtained, Seller shall promptly
assign, transfer, convey and deliver such Restricted Contract or Purchased Asset to Buyer, and
Buyer shall assume the Assumed Liabilities under any such Restricted Contract from and after the
date of assignment to Buyer pursuant to a special-purpose assignment and assumption agreement
substantially similar in terms to those of the Assignment and Assumption Agreement.
Notwithstanding the foregoing and subject to those claim procedures set forth in ARTICLE
VIII herein, in the event Buyer elects to proceed with the Closing without such Consent, then (i)
any liability associated with the provision of services in connection with such Restricted Contract
shall be deemed an Assumed Liability of Buyer, except for such liabilities resulting of Seller’s
gross negligence, bad faith or willful misconduct in the provision of services under the Restricted
Contracts before the Closing and prior to assignment of any such Contract to Buyer, and (ii) any
liability for a default under such Restricted Contact resulting from proceeding with the Closing in
the absence of such Consent shall be an Assumed Liability of Buyer.
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(c) Nothing contained in this Section 2.8 or elsewhere in this Agreement shall be
deemed to constitute an agreement to exclude from the Purchased Assets any Assigned Contracts or
other Purchased Asset as to which a Consent may be necessary. Notwithstanding the foregoing, in
the event a Consent is not given by the party to a Restricted Contract, Buyer hereby waives any
default of Seller that may occur under this Agreement as it relates to such Consent or assignment
of such Restricted Contract, and agrees that no claim for adjustment of the Purchase Price shall
result from such lack of Consent.
ARTICLE III
CLOSING
3.1 Closing Date. The closing of the Transactions contemplated by this Agreement (the
“Closing”) shall take place at the offices of Xxxxxx, Xxxxx & Xxxxxxx LLP, 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000, at 5:00 p.m. EDT on the date hereof, unless another time, date and/or
place is agreed to in writing by the parties. The date on which the Closing occurs is referred to
in this Agreement as the “Closing Date.”
3.2 Deliveries by Seller at the Closing. At the Closing, Seller shall deliver to
Buyer the following:
(a) a Xxxx of Sale in the form of Exhibit A hereto duly executed by Seller;
(b) an Assignment and Assumption Agreement in the form of Exhibit B hereto (the
“Assignment and Assumption Agreement”) duly executed by Seller;
(c) such other good and sufficient instruments of transfer as Buyer reasonably deems necessary
and appropriate to vest in Buyer all right, title and interest in, to and under the Purchased
Assets;
(d) the Power of Attorney contemplated by Section 4.20(e) duly executed by Seller
and the Power of Attorney contemplated by Section 6.8(c) duly executed by Seller;
(e) the Seller Closing Certificate;
(f) a completed certification of non-foreign status pursuant to Section 1.1445-2(b)(2) of the
Treasury regulations duly executed by Seller;
(g) the Escrow Agreement duly executed by Seller;
(h) the written opinion of Seller’s counsel, dated as of the Closing Date, in the form of
Exhibit D hereto; and
(i) the Transition Services Agreement duly executed by Seller.
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3.3 Deliveries by Buyer at the Closing. At the Closing Date, Buyer shall deliver to
Seller the following:
(a) A certificate representing those shares of Common Stock issued to the Seller which are not
part of the Indemnity Escrow Amount;
(b) A certificate representing those shares of Common Stock issued to the Seller which are
part of the Indemnity Escrow Amount and which shall be deposited with the Escrow Agent pursuant to
this Agreement and the Escrow Agreement;
(c) the Assignment and Assumption Agreement duly executed by Buyer pursuant to
Section 2.1;
(d) with respect to each Lease that is a Purchased Asset, an Assignment and Assumption of
Lease duly executed by Buyer pursuant to Section 2.1;
(e) the Buyer Closing Certificate;
(f) the Escrow Agreement duly executed by Buyer and Escrow Agent;
(g) such other good and sufficient instruments of transfer as Seller reasonably deems
necessary and appropriate to vest in Buyer all Liabilities arising after the Closing with respect
to the Purchased Assets and the Assumed Contracts;
(h) the Registration Rights Agreement; and
(i) the Transition Services Agreement duly executed by Buyer.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as of the date hereof and as of the Closing Date that the
statements contained in this ARTICLE IV are true and correct, except as set forth in the
disclosure schedule dated and delivered as of the date hereof by Seller to Buyer (the “Seller
Disclosure Schedule”), which is attached to this Agreement and is designated therein as being the
Seller Disclosure Schedule. The Seller Disclosure Schedule shall be arranged in paragraphs
corresponding to each representation and warranty set forth in this ARTICLE IV. Each
exception to a representation and warranty set forth in the Seller Disclosure Schedule shall
qualify the representation and warranty which is referenced in the applicable paragraph of the
Seller Disclosure Schedule, and each other representation or warranty to the extent reasonably
apparent from the context of the disclosure. All representations and warranties shall be deemed
made as of the date of this Agreement.
4.1 Organization and Good Standing. Seller is a limited liability company, duly
organized, validly existing and in good standing under the Laws of Washington, has all requisite
power to own, lease and operate its properties and to carry on its business as
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now being conducted, and is not required to be qualified to do business in any other
jurisdiction. Seller is not in default under its Charter Documents.
4.2 Authority and Enforceability. Seller has the requisite power and authority to
enter into this Agreement and to consummate the transactions contemplated hereby. The execution
and delivery of this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of Seller. Seller has duly executed and
delivered this Agreement. This Agreement constitutes the valid and binding obligation of Seller,
enforceable against it in accordance with its terms, except as such enforceability may be limited
by (i) bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting or
relating to creditors’ rights generally, or (ii) general equitable principles or the availability
of injunctive relief and other equitable remedies.
4.3 No Conflicts; Consents.
(a) The execution and delivery of this Agreement by Seller does not, and the execution and
delivery of each Ancillary Agreement to which Seller is, or is specified to be, a party, the
performance by Seller of its obligations hereunder and thereunder and the consummation by Seller of
the transactions contemplated hereby and thereby (in each case, with or without the giving of
notice or lapse of time, or both), will not, directly or indirectly, (i) violate the provisions of
any of the Charter Documents of Seller, (ii) violate or constitute a default, an event of default
or an event creating rights of acceleration, termination, cancellation, imposition of additional
obligations or loss of rights under any Contract (A) to which Seller is a party, (B) of which
Seller is a beneficiary or (C) by which Seller or any of its respective assets is bound, (iii)
violate or conflict with any Law, Authorization or Order applicable to Seller, or give any
Governmental Entity or other Person the right to challenge any of the transactions contemplated by
this Agreement or the Ancillary Agreements or to exercise any remedy, obtain any relief under or
revoke or otherwise modify any rights held under, any such Law, Authorization or Order, or (iv)
result in the creation of any Liens upon any of the assets owned or used by Seller.
Section 4.3 (a) of the Seller Disclosure Schedule sets forth all consents,
waivers, assignments and other approvals and actions that are required in connection with the
transactions contemplated by this Agreement under the Assigned Contracts (collectively,
“Consents”), in order to sell, assign, transfer, convey and deliver to, Buyer all rights and
benefits of Seller thereunder without any impairment or alteration whatsoever.
(b) No Authorization or Order of, registration, declaration or filing with, or notice to, any
Governmental Entity or other Person, is required by or with respect to Seller in connection with
the execution and delivery of this Agreement and the Ancillary Agreements and the consummation of
the transactions contemplated hereby and thereby.
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4.4 Financial Statements.
(a) The Seller Disclosure Schedule contains true and complete copies of the following
financial statements of the Business (collectively, the “Financial Statements”):
(i) The Seller’s compiled balance sheet as of year end for each of the two (2) years through
December 31, 2008 and the related statements of income and retained earnings for the years then
ended (the “Compiled Financial Statements”); and
(ii) The Seller’s audited balance sheet for the year ended December 31, 2009 and the related
statements of income and retained earnings for the same period. The balance sheet of the Business
as of December 31, 2009 is referred to herein as the “Balance Sheet” and the date thereof as the
“Balance Sheet Date.”
(b) The Financial Statements are true, complete and correct and have been prepared on a
consistent basis throughout the periods involved. The Financial Statements are based on the books
and records of Seller, and fairly present the financial condition of the Business as of the
respective dates for which they were prepared and the results of the operations of the Business for
the periods indicated.
(c) The Estimated Closing Net Working Capital Statement prepared by Seller and delivered to
Buyer prior to Closing was prepared by the Seller in good faith, and fairly present the financial
condition of the Business as of the Closing Date.
4.5 No Undisclosed Liabilities. The Business has no material liabilities, obligations
or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or
contingent, accrued or unaccrued, matured or unmatured or otherwise (“Liabilities”), except (a)
those which are adequately reflected or reserved against in the Balance Sheet as of the Balance
Sheet Date, including, but not limited to, any deferred revenue (recognized in accordance with
GAAP) and/or services to be performed by Seller related to existing agreements, (b) those which
have been incurred in the ordinary course of the Business and consistent with past practice since
the Balance Sheet Date and which are not, individually or in the aggregate, material in amount.
4.6 Accounts Receivable. The Accounts Receivable of the Business as set forth on the
Balance Sheet or arising since the date thereof are, to the extent not paid in full by the account
debtor prior to the date hereof, (a) valid and genuine, have arisen solely out of bona fide sales
and deliveries of goods, performance of services and other business transactions in the ordinary
course of the Business consistent with past practice, (b) not subject to valid defenses, set-offs
or counterclaims, and (c) collectible within ninety (90) days after billing at the full recorded
amount thereof less the recorded allowance for collection losses on the Balance Sheet or, in the
case of Accounts Receivable arising since the Balance Sheet Date, the recorded allowance for
collection losses shown on the accounting records of the Business. The allowance for collection
losses on the Balance Sheet and, with respect to Accounts Receivable arising since the
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Balance Sheet Date, the allowance for collection losses shown on the accounting records of the
Business, have been determined consistent with past practice.
4.7 Taxes.
(a) As used in this Agreement, the following words and terms have the following definitions:
(i) “Tax” or “Taxes” means any and all federal, state, local, or foreign net or gross income,
gross receipts, net proceeds, sales, use, ad valorem, value added, franchise, bank shares,
withholding, payroll, employment, excise, property, deed, stamp, alternative or add-on minimum,
environmental, profits, windfall profits, transaction, license, lease, service, service use,
occupation, severance, energy, unemployment, social security, workers’ compensation, capital,
premium, and other taxes, assessments, customs, duties, fees, levies, or other governmental charges
of any nature whatever, whether disputed or not, together with any interest, penalties, additions
to tax, or additional amounts with respect thereto.
(ii) “Tax Returns” means any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or attachment thereto, and including
any amendment thereof.
(iii) “Taxing Authority” means any Governmental Entity having jurisdiction with respect to any
Tax.
(b) The Seller has duly and timely filed all Tax Returns required to have been filed by or
with respect to the Seller on or before the Closing Date, taking any timely-filed extensions into
account. Each such Tax Return correctly and completely reflects in all material respects all
liability for Taxes and all other information required to be reported thereon. All Taxes owed by
the Seller (whether or not shown on any Tax Return) have been timely paid, and there are no unpaid
Taxes, except as reflected on the Balance Sheet or Taxes incurred in the ordinary course of
business since the Balance Sheet Date. The Seller has not elected and is not taxed as a
corporation for federal income tax purposes.
(c) As of the Closing Date, the Seller has withheld and timely paid all Taxes required to have
been withheld and paid by it and has complied with all Tax-related information reporting and backup
withholding requirements, including maintenance of required records with respect thereto.
(d) The Seller is not the beneficiary of any extension of time within which to file any Tax
Return not yet filed, nor has the Seller made (or had made on its behalf) any requests for such
extensions with respect to any such unfiled return. The Seller has not waived (or is subject to a
waiver of) any statute of limitations in respect of Taxes or has agreed to (or is subject to) any
extension of time with respect to a Tax assessment or deficiency.
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(e) The Seller Disclosure Schedule indicates those Tax Returns that have been audited and
those Tax Returns that currently are the subject of audit. Except as set forth in the Seller
Disclosure Schedule there is no Action now pending or to the Seller’s Knowledge threatened against
the Seller in respect of any Tax or any assessment or deficiency. There are no liens for Taxes
(other than current Taxes not yet due and payable) upon the assets of the Seller. The Seller has
delivered to Buyer correct and complete copies of all federal income Tax Returns, examination
reports, and statements of deficiencies assessed against or agreed to by the Seller for the
calendar years 2007 and 2008.
(f) The Seller Disclosure Schedule lists, as of the date of this Agreement, all jurisdictions
in which the Seller currently files Tax Returns. No claim has been made in writing to the Seller by
an authority in a jurisdiction where the Seller does not file Tax Returns that the Seller is or may
be subject to taxation by that jurisdiction or that the Seller must file Tax Returns.
(g) None of the assets or properties of the Seller constitutes tax-exempt bond financed
property or tax-exempt use property within the meaning of Section 168 of the Code. The Seller is
not a party to any “safe harbor lease” within the meaning of Section 168(f)(8) of the Code, as in
effect prior to amendment by the Tax Equity and Fiscal Responsibility Act of 1982, or to any
“long-term contract” within the meaning of Section 460 of the Code. The Seller is not a “foreign
person” within the meaning of Section 1445 of the Code.
(h) Except as set forth in Section 4.7 (h) of the Seller Disclosure
Schedule, the Seller has not agreed to nor is required to make by reason of a change in accounting
method or otherwise, any adjustment under Section 481(a) of the Code. The Seller has not received
(or is subject to) any ruling from any Taxing Authority or has entered into (or is subject to) any
agreement with a Taxing Authority. The Seller has disclosed on its federal income Tax Returns all
positions taken therein that would give rise to a substantial understatement of federal income Tax
within the meaning of Section 6662 of the Code.
(i) Except to the extent that the Agreement may qualify as such, or as set forth on
Section 4.7 (i) of the Seller Disclosure Schedule, the Seller (i) has not ever
been a party to any Tax allocation or sharing agreement or Tax indemnification agreement, (ii) has
not ever been a member of an affiliated, consolidated, condensed or unitary group, or (iii) does
not have any liability for or obligation to pay Taxes of any other Person under Treas. Reg.
1.1502-6 (or any similar provision of Tax Law), or as transferee or successor, by contract or
otherwise. The Seller is not a party to any joint venture, partnership, or other arrangement that
is treated as a partnership for federal income tax purposes, except that the Seller itself is
treated as a partnership for federal income tax purposes.
(j) The Seller will not be required to include any item of income in, or exclude any item of
deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing
Date as a result of any: (i) intercompany transactions or
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excess loss accounts described in Treasury regulations under Section 1502 of the Code (or any
similar provision of state, local, or foreign Tax Law), (ii) installment sale or open transaction
disposition made on or prior to the Closing Date or (iii) prepaid amount received on or prior to
the Closing Date.
(k) The Seller has not entered into any transaction that constitutes a “reportable
transaction” within the meaning of Treasury Regulation Section 1.6011-4(b).
(l) The unpaid Taxes of Seller (i) did not, as of the Closing Date, exceed any reserve for Tax
liability (rather than any reserve for deferred Taxes established to reflect timing differences
between book and Tax income) set forth on the face of the Balance Sheet, respectively (rather than
in any notes thereto), and (ii) will not exceed that reserve as adjusted for the passage of time
through the Closing Date in accordance with the past custom and practice of Seller in filing its
Tax Returns. Since the Balance Sheet Date the Seller has not incurred any liability for Taxes
arising from extraordinary gains or losses, outside the ordinary course of business consistent with
past custom and practice.
4.8 Compliance with Law.
(a) The Seller has conducted, and is conducting, the Business in material compliance with all
applicable Laws.
(b) No event has occurred and no circumstances exist that (with or without the passage of time
or the giving of notice) may result in a violation of, conflict with or failure on the part of
Seller to conduct the Business in compliance with, any applicable Law, which violation of, conflict
with or failure on the part of Seller to conduct the Business in compliance with, any applicable
Law would have a material adverse effect on the Business or the Purchased Assets. Seller has not
received notice regarding any violation of, conflict with, or failure to conduct the Business in
compliance with, any applicable Law.
4.9 Business Authorizations.
(a) Seller owns, holds or lawfully uses in the operation of the Business all Authorizations
which are necessary for it to conduct the Business as currently conducted or for the ownership and
use of the assets owned or used by Seller in the conduct of the Business (the “Business
Authorizations”) free and clear of all Liens (other than Permitted Liens). Such Business
Authorizations are valid and in full force and effect. All Business Authorizations are listed in
the Seller Disclosure Schedule.
(b) No event has occurred and no circumstances exist that (with or without the passage of time
or the giving of notice) may result in a violation of, conflict with, failure on the part of Seller
to comply with the terms of, or the revocation, withdrawal, termination, cancellation, suspension
or modification of any Business Authorization, which revocation, withdrawal, termination,
cancellation, suspension or modification would have a material adverse effect on the Business or
the Purchased Assets. Seller has not received any notice regarding any violation of, conflict
with,
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failure to comply with the terms of, or any revocation, withdrawal, termination, cancellation,
suspension or modification of, any Business Authorization. Seller is not in default, nor has
Seller received notice of any claim of default, with respect to any Business Authorization, which
default would have material adverse effect on the Business or the Purchased Assets.
(c) No Person other than Seller owns or has any proprietary, financial or other interest
(direct or indirect) in any of Seller’s Business Authorizations.
4.10 Title to Personal Properties.
(a) The Seller Disclosure Schedule sets forth a complete and accurate list of all personal
properties and assets of Seller as of the date of this Agreement (“Personal Property”), in each
case with a current fair market value in excess of $500, specifying whether such Personal Property
is owned or leased and, in the case of leased assets, indicating the parties to, execution dates of
and annual payments under, the lease.
(b) With respect to Personal Property that Seller purports to own including all Personal
Property reflected as owned on the Balance Sheet (other than inventory sold in the ordinary course
of the Business since the date thereof), Seller has good and transferable title to all such
Personal Property, free and clear of all Liens except for Permitted Liens.
(c) All leases under which Personal Property is leased are in full force and effect and
constitute valid and binding obligations of the other party(ies) thereto, and neither Seller nor,
to Seller’s Knowledge, any other party thereto, is in breach of any of the terms of any such lease.
4.11 Condition of Tangible Assets. All Purchased Assets that are tangible property
are structurally sound, are in good operating condition and repair (subject to normal wear and tear
given the use and age of such assets), are usable in the ordinary course of the Business and
conform to all Laws and Authorizations relating to their construction, use and operation. There
are no facts or conditions affecting such Purchased Assets that could interfere in any material
respect with the use or operation thereof as used or operated for the twelve (12) months preceding
the date of this Agreement.
4.12 Real Property.
(a) The Seller Disclosure Schedule contains a list of all interests in real property leased by
Seller Related to the Business (the “Real Property”). Seller does not and has not owned any real
property.
(b) With respect to Real Property, Seller has delivered to Buyer a true and complete copy of
every lease and sublease pursuant to which Seller is a party or by which it is bound (each, a
“Lease”). Seller has peaceful, undisturbed and exclusive possession of the Real Property except
for a sublease of space to an Affiliate, Xxxxxx Enterprises, Inc. The Lease is in full force and
effect and terminates on March 21, 2010.
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A true and correct copy of the Lease has been delivered to Buyer. Neither the Seller nor to
Seller’s Knowledge the lessor under the Lease is in default under the Lease and to Seller’s
Knowledge, no event has occurred which, with the giving of notice or passage of time, or both,
could result in such a default.
4.13 Intellectual Property.
(a) As used in this Agreement, “Intellectual Property” means: (i) inventions (whether or not
patentable), trade secrets, technical data, databases, customer lists, designs, tools, methods,
processes, technology, ideas, know-how, source code, product road maps and other proprietary
information and materials (“Proprietary Information”); (ii) trademarks and service marks (whether
or not registered), trade names, logos, trade dress and other proprietary indicia and all goodwill
associated therewith; (iii) documentation, advertising copy, marketing materials, web-sites,
specifications, mask works, drawings, graphics, databases, recordings and other works of
authorship, whether or not protected by Copyright; (iv) computer programs, including any and all
software implementations of algorithms, models and methodologies, whether in source code or object
code, design documents, flow-charts, user manuals and training materials relating thereto and any
translations thereof (collectively, “Software”); and (v) all forms of legal rights and protections
that may be obtained for, or may pertain to, the Intellectual Property set forth in clauses (i)
through (iv) in any country of the world (“Intellectual Property Rights”), including all letters
patent, patent applications, provisional patents, design patents, PCT filings, invention
disclosures and other rights to inventions or designs (“Patents”), all registered and unregistered
copyrights in both published and unpublished works (“Copyrights”), all trademarks, service marks
and other proprietary indicia (whether or not registered) (“Marks”), trade secret rights, mask
works, moral rights or other literary property or authors rights, and all applications,
registrations, issuances, divisions, continuations, renewals, reissuances and extensions of the
foregoing.
(b) The Seller Disclosure Schedule lists (by name, owner and, where applicable, registration
number and jurisdiction of registration, application, certification or filing) all Intellectual
Property that is owned by Seller and Related to the Business (whether exclusively, jointly with
another Person or otherwise) (“Seller Owned Intellectual Property”); provided that
the Seller Disclosure Schedule is not required to list items of Seller Owned Intellectual Property
which are both (i) immaterial to the Business and (ii) not registered or the subject of an
application for registration. Except as described in the Seller Disclosure Schedule, or to the
extent subject to any In-Bound Licenses or Out-Bound Licenses (as defined below), Seller owns the
entire right, title and interest to all Seller Owned Intellectual Property free and clear of all
Liens.
(c) The Seller holds certain licenses, sublicenses and other agreements, pursuant to which a
third party authorizes Seller to use, practice any rights under, or grant sublicenses with respect
to, any Intellectual Property Related to the Business owned by a third party, including the
incorporation of any such Intellectual Property into products of Seller (“In-Bound Licenses”). The
Seller Disclosure Schedule lists all material In-Bound Licenses (provided that Seller shall not be
required to list any
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“shrink wrap” or similar widely available commercial end-user licenses) and, with respect to
each In-Bound License, whether the In-Bound License is exclusive or non-exclusive.
(d) The Seller Disclosure Schedule lists all licenses, sublicenses and other agreements
(“Out-Bound Licenses”) pursuant to which Seller authorizes a third party to use, practice any
rights under, or grant sublicenses with respect to, any Seller Owned Intellectual Property or
pursuant to which Seller grants rights to use or practice any rights under any Intellectual
Property owned by a third party and, with respect to each Out-Bound License, whether the Out-Bound
License is exclusive or non-exclusive.
(e) Except as described on the Seller Disclosure Schedule or the terms of any In-Bound
License, Seller (i) exclusively owns the entire right, interest and title to each item of Seller
Owned Intellectual Property free and clear of Liens (other than Permitted Liens), and there are no
limitations upon the Intellectual Property, contractual or otherwise, with respect to future
developments and updates and modifications thereto and creation of derivative works therefrom, or
(ii) may otherwise rightfully use or otherwise enjoy all Intellectual Property currently used in
the conduct of the Business pursuant to the terms of a valid and enforceable In-Bound License. The
Seller Owned Intellectual Property, together with Seller’s rights under the In-Bound Licenses
(collectively, the “Seller Intellectual Property”), constitute all the Intellectual Property used
in or necessary for the operation of the Business as it is currently conducted.
(f) All registration, maintenance and renewal fees related to Patents, Marks, Copyrights and
any other certifications, filings or registrations that are owned by Seller and Related to the
Business (“Seller Registered Items”) that are currently due have been paid and all documents and
certificates related to such Seller Registered Items have been filed with the relevant Governmental
Entity or other authorities in the United States or foreign jurisdictions, as the case may be, for
the purposes of maintaining such Seller Registered Items. There are no actions that must be taken
by Buyer for the purposes of maintaining, perfecting, preserving or renewing any Seller Registered
Items within thirty (30) days after the date hereof, including the payment of any registration,
maintenance or renewal fees or the filing of any documents, applications or certificates. All
Seller Registered Items are in good standing, held in compliance with all applicable legal
requirements and, enforceable by Seller. All Patents Related to the Business that have been issued
to Seller are valid.
(g) Seller is not aware of any challenges (or any basis therefor) with respect to the validity
or enforceability of any Seller Owned Intellectual Property. The Seller Disclosure Schedule lists
the status of any proceedings or actions before the United States Patent and Trademark Office or
any other Governmental Entity anywhere in the world related to any of the Seller Owned Intellectual
Property, including the due date for any outstanding response by Seller in such proceedings.
Seller has not taken any action or failed to take any action that could reasonably be expected to
result in the abandonment, cancellation, forfeiture, relinquishment, invalidation, waiver or
unenforceability of any Seller Owned Intellectual Property. The Seller Disclosure Schedule lists
all previously held Seller Registered Items that Seller has abandoned,
22
cancelled, forfeited or relinquished during the twelve (12) months prior to the date of this
Agreement.
(h) None of the products or services currently or formerly manufactured, sold, distributed,
provided, shipped or licensed by Seller, or which will constitute Purchased Assets, in each case
Related to the Business, has infringed or infringes upon, or otherwise unlawfully used or uses, the
Intellectual Property Rights of any third party. Seller, by conducting the Business as currently
conducted, has not infringed nor infringes upon, or otherwise unlawfully used or uses, any
Intellectual Property Rights of a third party. Seller has not received any communication alleging
that Seller has violated or, by conducting the Business as currently conducted or proposed to be
conducted, would violate, any Intellectual Property Rights of a third party nor, to Seller’s
Knowledge, is there any basis therefor. No Action has been instituted, nor, to Seller’s Knowledge,
threatened, relating to any Intellectual Property formerly or currently used by Seller Related to
the Business and none of the Seller Intellectual Property is subject to any outstanding Order. To
Seller’s Knowledge, no Person has infringed or is infringing any Intellectual Property Rights of
Seller Related to the Business or has otherwise misappropriated or is otherwise misappropriating
any Seller Intellectual Property.
(i) Except as set forth in the Seller Disclosure Schedule, with respect to the Proprietary
Information of Seller Related to the Business, the documentation relating thereto is current,
accurate and sufficient in detail and content to identify and explain it and to allow its full and
proper use without reliance on the special knowledge or memory of others. Seller has taken
commercially reasonable steps to protect and preserve the confidentiality of all Proprietary
Information owned by Seller Related to the Business that is not covered by an issued Patent. Any
receipt or use by, or disclosure to, a third party of Proprietary Information Related to the
Business owned by Seller has been pursuant to the terms of binding written confidentiality and
non-use agreement between Seller and such third party (“Nondisclosure Agreements”). True and
complete copies of the Nondisclosure Agreements, and any amendments thereto, have been provided to
Buyer. Seller is, and to Seller’s Knowledge, all other parties thereto are, in compliance with the
provisions of the Nondisclosure Agreements. Seller is in compliance with the terms of all Contracts
pursuant to which a third party has disclosed to, or authorized Seller to use, Proprietary
Information Related to the Business owned by such third party.
(j) All current and former employees, consultants and contractors of the Business that are or
have been involved in the development of the Seller Intellectual Property have executed and
delivered, and are in compliance with, agreements regarding the protection of Proprietary
Information and providing written assignments of all Intellectual Property Related to the Business
conceived or developed by such employees, consultants or contractors in connection with their
services for the Seller (“Work Product Agreements”). True and complete copies of the Work Product
Agreements have been provided to Buyer. No current or former employee, consultant or contractor
that is or was involved in the development of the Seller Intellectual Property has any right, claim
or interest to any of the Seller Owned Intellectual Property.
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(k) To the Seller’s knowledge, no employee, consultant or contractor of Seller has been by
performing services for the Business, in violation of any term of any employment, invention
disclosure or assignment, confidentiality or noncompetition agreement or other restrictive covenant
or any Order as a result of such employee’s, consultant’s or contractor’s as a result of such
individual’s employment by or services for the Seller prior to the Closing.
(l) All Intellectual Property Related to the Business that has been distributed, sold or
licensed to a third party by Seller that is covered by warranty conformed and conforms to such
warranty for the time period during which such warranty applies, subject to any conditions or
exceptions stated in the applicable warranty.
(m) The execution and delivery of this Agreement by Seller does not, and the consummation of
the transactions contemplated hereby (in each case, with or without the giving of notice or lapse
of time, or both), will not, directly or indirectly, result in the loss or impairment of, or give
rise to any right of any third party to terminate or reprice or otherwise renegotiate Seller’s
rights to own any of its Intellectual Property or their respective rights under any Out-Bound
License or In-Bound License, nor require the consent of any Governmental Entity or other third
party in respect of any such Intellectual Property, except as set forth in the Seller Disclosure
Schedule.
(n) Software. In each case, except as set forth in the Seller Disclosure Schedule:
(i) The Software owned, or purported to be owned by Seller and Related to the Business
(collectively, the “Seller Owned Software”) was either (i) developed by employees of Seller within
the scope of their employment, (ii) developed by independent contractors who have assigned all of
their right, title and interest therein to Seller pursuant to written agreements or (iii) otherwise
acquired by Seller from a third party pursuant to a written agreement in which such third party
assigned all of its right, title and interest therein. None of the Seller Owned Software contains
any programming code, documentation or other materials or development environments that embody
Intellectual Property Rights of any person other than Seller, except for such materials obtained by
Seller from other Persons who make such materials generally available to all interested purchasers
or end-users on standard commercial terms.
(ii) Each existing and currently supported and marketed Seller Owned Software product sold or
licensed to a third party by Seller that is covered by warranty conformed and conforms to such
warranty for the time period during which such warranty applies, subject to any conditions or
exceptions stated in the applicable warranty.
(iii) Seller has taken all actions customary in the software industry to document the Seller
Owned Software and its operation, such that the materials comprising the Seller Owned Software,
including the source code and documentation,
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have been written in a clear and professional manner so that they may be understood, modified
and maintained in an efficient manner by reasonably competent programmers.
(iv) Seller has not exported or transmitted Seller Owned Software to any country to which such
export or transmission is restricted by any applicable Law, without first having obtained all
necessary and appropriate Authorizations.
(v) Seller Owned Software is free of any disabling codes or instructions (a “Disabling Code”),
and any virus or other intentionally created, undocumented contaminant (a “Contaminant”), that may,
or may be used to, access, modify, delete, damage or disable any Systems or that may result in
damage thereto. Seller has taken reasonable steps and implemented reasonable procedures to ensure
that its internal computer systems used in connection with the Business are free from Disabling
Codes and Contaminants. To the Seller’s knowledge, Software licensed by Seller Related to the
Business is free of any Disabling Codes or Contaminants that may, or may be used to, access,
modify, delete, damage or disable any of the hardware, software, databases or embedded control
systems of the Business (“Systems”) or that might result in damage thereto. Seller has taken all
reasonable steps to safeguard its Systems and restrict unauthorized access thereto.
4.14 Absence of Certain Changes or Events. Except as described in the Seller
Disclosure Schedule, since the Balance Sheet Date:
(a) there has not been any material adverse change in the condition (financial or otherwise),
operations, or results of operations of the Business or of Seller;
(b) Seller has neither amended nor changed, nor (except as contemplated by the Agreement and
the name change to be affect in association therewith) proposed to amend or change, its Charter
Documents in a manner that could be expected to delay the consummation of the transactions
contemplated by this Agreement;
(c) Seller has not materially (i) increased or modified the compensation or benefits payable
or to become payable by Seller to any current or former directors, employees, consultants or
contractors of the Business, (ii) increased or modified any Benefit Plan made to, for or with any
current or former directors, employees, consultants or contractors of the Business, or (iii)
entered into any employment, severance or termination agreement Related to the Business;
(d) Seller has not sold, leased, transferred or assigned any property or assets Related to the
Business, except for (i) the grant of non-exclusive Out-Bound Licenses, and (ii) the sale of
obsolete Equipment, in each case in the ordinary course of the Business consistent with past
practice;
(e) Seller has not incurred, assumed or guaranteed any Indebtedness Related to the Business;
25
(f) Seller has not mortgaged, pledged or subjected to Liens any assets, properties or rights
Related to the Business, except for Liens arising under lease financing arrangements existing as of
the Balance Sheet Date and Permitted Liens;
(g) Seller has not entered into, amended, modified, canceled or waived any rights under, any
Material Contract and no Material Contract has been terminated or cancelled;
(h) Seller has not taken any action outside the ordinary course of the Business (except and to
the extent contemplated by this Agreement and the Ancillary Agreements);
(i) There has not been, in connection with the Business, any labor dispute, other than
individual grievances, or any activity or proceeding by a labor union or representative thereof to
organize any employees of the Business;
(j) Seller has not committed any violation of, or conflict with, any applicable Law or any
Business Authorization;
(k) Seller has not agreed, or entered into any arrangement, to take any action which, if taken
prior to the date hereof, would have made any representation or warranty set forth in this ARTICLE
IV untrue or incorrect as of the date when made;
(l) There has not been any material damage, destruction or loss with respect to the Purchased
Assets, whether or not covered by insurance;
(m) Seller has not made any change in the accounting practices Related to the Business;
(n) Seller has not made any Tax election, changed its method of Tax accounting or settled any
claim for Taxes, in each case Related to the Business; and
(o) Seller has not agreed, whether in writing or otherwise, to do any of the foregoing (except
and to the extent contemplated by this Agreement and the Ancillary Agreements).
4.15 Contracts.
(a) Except as set forth in Section 4.15 of the Seller Disclosure Schedule, Seller is not party
to, nor bound by, in each case Related to the Business:
(i) any Contract or series of related Contracts for the purchase of materials, supplies,
goods, services, equipment or other assets that involves (A) annual payments by the Seller of
$5,000 or more, or (B) aggregate payments remaining to be made by Seller of $5,000 or more;
(ii) any Contract or series of related Contracts for the sale by Seller of (A) materials,
supplies, goods, services, equipment or other assets, that involves
26
a specified annual minimum dollar sales amount of $5,000 or more, or (B) pursuant to which
Seller received payments of more than $5,000 in any year;
(iii) any Contract that requires Seller to purchase its total requirements of any product or
service from a third party or that contains “take or pay” provisions;
(iv) any Contract or series of related Contracts that (A) continues over a period of more than
six (6) months from the date hereof and (B) involves payments to or by Seller exceeding $5,000
other than arrangements disclosed pursuant to the preceding paragraphs (i) and (ii);
(v) any partnership, joint venture or similar Contract;
(vi) any distribution, dealer, representative or sales agency Contract;
(vii) any Lease;
(viii) any Contract for the lease of personal property which provides for payments to or by
Seller in any one case of $5,000 or more annually or $5,000 or more over the remaining term of the
Contract;
(ix) any Contract which provides for the indemnification by Seller of any Person, the
undertaking by Seller to be responsible for consequential damages, or the assumption by Seller of
any Tax, environmental or other Liability;
(x) any Contract with any Governmental Entity;
(xi) any note, debenture, bond, equipment trust, letter of credit, loan or other Contract for
Indebtedness of Seller or for lending of money by Seller (other than to employees for travel
expenses in the ordinary course of the Business) or Contract for a line of credit or guarantee,
pledge or undertaking by Seller of the Indebtedness of any other Person;
(xii) any Contract for a charitable or political contribution in any one case in excess of
$1,000 or in the aggregate greater than $5,000;
(xiii) any Contract for any capital expenditure or leasehold improvement not yet made in any
one case in excess of $5,000 or in the aggregate greater than $5,000;
(xiv) any Contract which restrains the ability of Seller to engage or compete in any manner or
in the Business (other than this Agreement);
(xv) any Out-Bound License or In-Bound License;
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(xvi) any Contract relating to the acquisition or disposition of any material business
(whether by merger, sale of stock, sale of assets or otherwise) which has not been consummated
(other than this Agreement and the Ancillary Agreements);
(xvii) any collective bargaining Contract or other Contract with any labor organization, union
or association;
(xviii) other than the Work Product Agreements, any Contract with an employee, consultant or
contractor that is an employment, consulting, termination or severance Contract other than those
that are terminable by Seller on less than thirty (30) days’ notice; and
(xix) any Contract that is otherwise material to Seller and not previously disclosed pursuant
to this Section 4.15 or elsewhere in this Agreement or the Seller Disclosure Schedules.
(b) Each Contract required to be listed in Section 4.15 of the Seller Disclosure Schedule,
including, but not limited to, Contracts in connection with services to be rendered and/or deferred
revenue (collectively, the “Material Contracts”) is in all material respects valid and enforceable
in accordance with its terms. Seller is not and, to Seller’s Knowledge, no other party thereto is,
in default in the performance, observance or fulfillment of any obligation, covenant or condition
contained therein, and Seller has neither given nor received notice to or from any Person relating
to any such alleged or potential default that has not been cured, except in either case where such
default would not and would not reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the Purchased Assets or the condition (financial or otherwise),
operations or results of operations of the Business. No event has occurred which with or without
the giving of notice or lapse of time, or both, may conflict with or result in a violation or
breach of, or give any Person the right to exercise any remedy under or accelerate the maturity or
performance of, or cancel, terminate or modify, any Material Contract, except where such violation,
breach, remedy, acceleration, cancellation, termination or modification could not and could not
reasonably be expected to have, individually or in the aggregate, a material adverse effect on the
Purchased Assets or the condition (financial or otherwise), operations, prospects or results of
operations of the Business. Seller has neither given nor received notice to or from any Person
relating to any alleged or potential default under any Material Contract that has not been cured.
(c) Seller has delivered or made available accurate and complete copies of each Material
Contract to Buyer.
(d) Set forth on Section 4.15(d) of the Seller Disclosure Schedule is a list of all Seller
client contracts and backlog as of the Balance Sheet Date, including (i) the start and (if
applicable) end date of the client contract, (ii) the maximum revenues associated with such
contracts (to the extent provided by the terms of such contracts), (iii) the aggregate amount of
revenues recognized for services performed and products delivered to client pursuant to such
contract, and (iv) the remaining potential revenue in
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connection with services to be performed and products delivered to client pursuant to such
contracts (to the extent provided by the terms of such contracts).
4.16 Litigation.
(a) There is no action, suit or proceeding, claim, arbitration, litigation or investigation
(each, an “Action”), in each case Related to the Business, (i) pending or, to Seller’s Knowledge,
threatened against or, to Seller’s Knowledge affecting Seller, or (ii) that challenges or seeks to
prevent, enjoin or otherwise delay the transactions contemplated by this Agreement or the Ancillary
Agreements. To the Seller’s Knowledge no event has occurred or circumstances exist that may give
rise or serve as a basis for any such Action. To Seller’s Knowledge there is no Action against any
current or former director or employee of the Business with respect to which Seller has or is
reasonably likely to have an indemnification obligation.
(b) There is no unsatisfied judgment, penalty or award, in each case Related to the Business,
against or affecting Seller or any of its assets, properties or rights.
4.17 Employee Benefits.
(a) The Seller Disclosure Schedule sets forth a complete and accurate list of all Benefit
Plans maintained or contributed to by Seller for the benefit of any present or former directors,
employees, contractors or consultants of the Business or with respect to which Seller otherwise has
any present or future Liability (collectively, “Seller Benefit Plans”). A current, accurate and
complete copy of each Seller Benefit Plan has been provided to Buyer. Seller has no intent or
commitment to create any additional Seller Benefit Plan or amend any Seller Benefit Plan except to
terminate such plans after Closing.
(b) Each Seller Benefit Plan has been and is currently administered in compliance in all
material respects with all reporting, disclosure and other requirements of ERISA and the Code
applicable to such Seller Benefit Plan. No Seller Benefit Plan is a “defined benefit plan” as
defined in Section 3(35) of ERISA.
(c) Neither Seller nor any ERISA Affiliate or, to Seller’s Knowledge, any trustee or agent of
any Seller Benefit Plan has been or is currently engaged in any prohibited transactions as defined
by Section 406 of ERISA or Section 4975 of the Code for which an exemption is not applicable which
could subject the Seller, any ERISA Affiliate or any trustee or agent of any Seller Benefit Plan to
the Tax or penalty imposed by Section 4975 of the Code or Section 502 of ERISA.
(d) Neither Seller nor any ERISA Affiliate has been or is currently party to any
“multi-employer plan,” as that term is defined in Section 3(37) of ERISA.
(e) True and correct copies of the most recent annual report on Form 5500 and any attached
schedules for each Seller Benefit Plan (if any such report was required by applicable Law) and a
true and correct copy of the most recent determination
29
letter issued by the Internal Revenue Service for each Pension Plan have been provided to
Buyer.
(f) With respect to each Seller Benefit Plan, there are no actions, suits or claims (other
than routine claims for benefits in the ordinary course) pending or, to Seller’s Knowledge,
threatened against or otherwise involving any Seller Benefit Plan.
(g) With respect to each Seller Benefit Plan to which Seller or any ERISA Affiliate is a party
which constitutes a group health plan subject to Section 4980B of the Code, each such Seller
Benefit Plan complies, and in each case has complied, in all materials respects with all applicable
requirements of Section 4980B of the Code.
(h) Full payment has been made of all amounts which Seller or any ERISA Affiliate was required
to have paid as a contribution to any Seller Benefit Plan as of the last day of the most recent
fiscal year of each of the Benefit Plans ended prior to the date of this Agreement.
(i) Each Seller Benefit Plan is, and its administration is and has been during the six
(6)-year period preceding the date of this Agreement, in all materials respects, in compliance
with, and neither Seller nor any ERISA Affiliate has received any claim or notice that any such
Seller Benefit Plan is not in compliance with, all applicable Laws and Orders and prohibited
transaction exemptions, including to the extent applicable, the requirements of ERISA.
(j) Neither Seller nor any ERISA Affiliate is in default in performing any of its contractual
obligations under any of the Seller Benefit Plans or any related trust agreement or insurance
contract.
(k) There are no outstanding Liabilities of any Seller Benefit Plan other than Liabilities for
benefits to be paid to participants in any Seller Benefit Plan and their beneficiaries in
accordance with the terms of such Seller Benefit Plan.
(l) Subject to ERISA and the Code, each Seller Benefit Plan may be amended, modified,
terminated or otherwise discontinued by Seller or an ERISA Affiliate at any time without liability.
(m) No Seller Benefit Plan provides benefits to any individual after termination of
employment.
(n) The consummation of the transactions contemplated by this Agreement will not (i) entitle
any current or former director, employee, contractor or consultant of the Business to severance
pay, unemployment compensation or any other payment, (ii) accelerate the time of payment or
vesting, or increase the amount of, compensation due to any such director, employee, contractor or
consultant, or result in the payment of any other benefits to any Person or the forgiveness of any
Indebtedness of any Person, (iii) result in any prohibited transaction described in Section 406 of
ERISA or Section 4975 of the Code for which an exemption is not available.
30
(o) With respect to each Seller Benefit Plan that is funded wholly or partially through an
insurance policy, all premiums required to have been paid to date under the insurance policy have
been paid, all premiums required to be paid under the insurance policy through the Closing will
have been paid on or before the Closing (or reserves therefor established by the Seller) and, as of
the Closing, there will be no liability of either Seller or any ERISA Affiliate under any insurance
policy or ancillary agreement with respect to such insurance policy in the nature of a retroactive
rate adjustment, loss sharing arrangement or other Liability arising wholly or partially out of
events occurring prior to the Closing.
(p) Each Seller Benefit Plan that constitutes a “welfare benefit plan,” within the meaning of
Section 3(1) of ERISA, and for which contributions are claimed by Seller or any ERISA Affiliate as
deductions under any provision of the Code, is in compliance with all applicable requirements
pertaining to such deduction. With respect to any welfare benefit fund (within the meaning of
Section 419 of the Code) related to a welfare benefit plan, there is no disqualified benefit
(within the meaning of Section 4976(b) of the Code) that would result in the imposition of a Tax
under Section 4976(a) of the Code. All welfare benefit funds intended to be exempt from Tax under
Section 501(a) of the Code have been determined by the Internal Revenue Service to be so exempt and
no event or condition exists which would adversely affect any such determination.
(q) The Seller does not maintain any Seller Benefit Plan covering employees of the Business
outside the United States.
4.18 Labor and Employment Matters.
(a) The Seller Disclosure Schedule sets forth (i) a list of all United States and foreign
employees of Seller engaged in the Business (“Business Employees”) (including title and position),
and contractors and consultants of the Business as of the date hereof, and (ii) the base
compensation, bonus, commission, any other incentive compensation arrangement and benefits of each
such Business Employee, contractor and consultant. Except as set forth on the Seller Disclosure
Schedule, the employment of all Business Employees, contractors and consultants may be terminated
at any time with or without cause and without any severance or other Liability to Seller.
(b) Seller is not a party or subject to any labor union or collective bargaining agreement in
connection with the Business. There have not been, and there are not pending or, to Seller’s
Knowledge, threatened, any labor disputes, work stoppages, requests for representation, pickets,
work slow-downs due to labor disagreements or any actions or arbitrations that involve Business
Employees. There is no unfair labor practice, charge or complaint pending, unresolved or, to
Seller’s Knowledge, threatened before the National Labor Relations Board. No event has occurred or
circumstance exist that may provide the basis of any work stoppage or other labor dispute in
connection with the Business.
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(c) Seller has in all material respects complied with each, and is not in violation of any,
Law relating to anti-discrimination and equal employment opportunities in connection with the
Business, or any other Law respecting the hiring, hours, wages, occupational safety and health,
employment, promotion, termination or benefits of any Business Employee or other Person in
connection with the Business. Seller has filed all reports, information and notices required under
any Law respecting the hiring, hours, wages, occupational safety and health, employment, promotion,
termination or benefits of any Business Employee or other Person in connection with the Business,
and will timely file prior to Closing all such reports, information and notices required by any Law
to be given prior to Closing.
(d) Seller has paid or properly accrued in the ordinary course of the Business all wages and
compensation due to Business Employees, including all vacations or vacation pay, holidays or
holiday pay, sick days or sick pay, and bonuses.
(e) Seller is not a party to any Contract which restricts Seller from relocating, closing or
terminating any of its operations or facilities or any portion thereof. Seller has not since
inception effectuated a “plant closing” (as defined in the WARN Act) or (ii) a “mass lay-off” (as
defined in the WARN Act), in either case affecting any site of employment or facility of Seller,
except in accordance with the WARN Act. The consummation of the transactions contemplated by this
Agreement will not create liability for any act by Seller on or prior to the Closing under the WARN
Act or any other Law respecting reductions in force or the impact on employees of plant closings or
sales of businesses.
(f) Seller has complied and is in compliance with the requirements of the Immigration Reform
and Control Act of 1986. The Seller Disclosure Schedule sets forth a true and complete list of all
Business Employees working in the United States who are not U.S. citizens and a description of the
legal status under which each such Business Employee is permitted to work in the United States.
All Business Employees who are performing services for Seller in the United States are legally able
to work in the United States and will be able to continue to work in the Business in the United
States following the consummation of the transactions contemplated by this Agreement.
4.19 Environmental.
(a) As used in this Agreement, the following words and terms have the following definitions:
(i) The term “Environment” means all indoor or outdoor air, surface water, groundwater,
surface or subsurface land, including all fish, wildlife, biota and all other natural resources.
(ii) The term “Environmental Action” means any claim, proceeding or other Action brought or
threatened under any Environmental Law or the assertion of any claim with respect to Pre-Closing
Environmental Liabilities.
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(iii) The term “Environmental Clean-up Site” means any location which is listed on the
National Priorities List, the Comprehensive Environmental Response, Compensation and Liability
Information System, or on any similar state or foreign list of sites requiring investigation or
cleanup, or which is the subject of any pending or threatened Action related to or arising from any
alleged violation of any Environmental Law, or at which there has been a threatened or actual
Release of a Hazardous Substance.
(iv) The term “Environmental Laws” means any and all applicable Laws and Authorizations
issued, promulgated or entered into by any Governmental Entity relating to the Environment, worker
health and safety, preservation or reclamation of natural resources, or to the management,
handling, use, generation, treatment, storage, transportation, disposal, manufacture, distribution,
formulation, packaging, labeling, Release or threatened Release of or exposure to Hazardous
Substances, whether now existing or subsequently amended or enacted, including but not limited to:
the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601
et seq. (“CERCLA”); the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the
Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section
2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the Emergency
Planning and Community Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Safe
Drinking Water Act, 42 U.S.C. Section 300(f) et seq.; the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act 7 U.S.C.
Section 136 et seq.; the Resource Conservation and Recovery Act of 1976 (“RCRA”), 42 U.S.C. Section
6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Oil Pollution
Act of 1990, 33 U.S.C. Section 2701 et seq.; and any similar or implementing state or local Law,
and any non-U.S. Laws and regulations of similar import, and all amendments or regulations
promulgated thereunder; and any common law doctrine, including but not limited to, negligence,
nuisance, trespass, personal injury, or property damage related to or arising out of the presence,
Release, or exposure to Hazardous Substances.
(v) The term “Environmental Permit” means any Authorization under Environmental Law and
includes any and all Orders issued or entered into by a Governmental Entity under Environmental
Law.
(vi) The term “Hazardous Substances” means all explosive or regulated radioactive materials or
substances, hazardous or toxic materials, wastes or chemicals, petroleum and petroleum products
(including crude oil or any fraction thereof), asbestos or asbestos containing materials, and all
other materials, chemicals or substances which are regulated by, form the basis of liability or are
defined as hazardous, extremely hazardous, toxic or words of similar import, under any
Environmental Law, including materials listed in 49 C.F.R. Section 172.101 and materials defined as
hazardous pursuant to Section 101(14) of CERCLA.
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(vii) The term “Release” means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, or disposing of Hazardous Substances into the
Environment.
(b) Seller has no Environmental Permits.
(c) There are no past, pending or, to Seller’s Knowledge, threatened Environmental Actions
against or, to Seller’s Knowledge, materially or directly affecting Seller in connection with the
Business, and Seller is not aware of any facts or circumstances which could be expected to form the
basis for any such Environmental Action.
(d) Seller has not entered into or agreed to any Order, and Seller is not subject to any
Order, relating to compliance with any Environmental Law or to investigation or cleanup of a
Hazardous Substance under any Environmental Law, in each case in connection with the Business.
(e) No Lien has been attached to, or asserted against, any assets, or rights in connection
with the Business pursuant to any Environmental Law, and, to Seller’s Knowledge, no such Lien has
been threatened.
(f) There has been no treatment, storage, disposal or Release of any Hazardous Substance at,
from, into, on or under any real property or any other property currently or formerly owned,
operated or leased by Seller in connection with the Business during the term of Seller’s ownership,
operation, or lease of such premises.
(g) Seller has not received a CERCLA 104(e) information request nor has Seller been named a
potentially responsible party for any National Priorities List site under CERCLA or any other site
under analogous state Law, in each case in connection with the Business. Seller has not received
an analogous notice or request from any non-U.S. Governmental Entity.
(h) Seller has not in connection with the Business transported or arranged for the treatment,
storage, handling, disposal, or transportation of any Hazardous Material to any off-site location
which is an Environmental Clean-up Site.
(i) Seller has no written environmental assessments, materials, reports, data, analyses or
compliance audits that have been prepared with respect to the Real Property or any other real
property formerly owned, operated or leased by Seller in connection with the Business.
4.20 Insurance.
(a) The Seller Disclosure Schedule sets forth (i) an accurate and complete list of each
insurance policy and fidelity bond which covers the Business and Seller with respect to the
Business (the “Policies”) and (ii) with respect to the Business, a list of all pending claims and
the claims history for Seller during the current year and the preceding three (3) years (including
with respect to insurance obtained but not currently
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maintained). There are no pending claims under any of such Policies with respect to the
Business as to which coverage has been questioned, denied or disputed by the insurer or in respect
of which the insurer has reserved its rights.
(b) The Seller Disclosure Schedule describes any self-insurance arrangement by or affecting
Seller with respect to the Business, including any reserves thereunder, and describes the loss
experience for all claims that were self-insured in the current year and the preceding three (3)
years.
(c) To Seller’s Knowledge, all Policies are issued by an insurer that is financially sound and
reputable, are in full force and effect and are enforceable in accordance with their terms. Such
Policies provide adequate insurance coverage for the Business, and are sufficient for compliance
with all Laws and Contracts to which Seller is a party or by which it is bound in connection with
the Business.
(d) All premiums due under the Policies have been paid in full or, with respect to premiums
not yet due, accrued. Seller has not received a notice of cancellation of any Policy nor of any
material changes that are required in the conduct of the Business as a condition to the
continuation of coverage under, or renewal of, any such Policy. To the Seller’s Knowledge there is
no existing default or event which, with the giving of notice or lapse of time or both, would
constitute a default under any Policy or entitle any insurer to terminate or cancel any Policy with
respect to the Business. Seller has no Knowledge of any threatened termination of any Policy.
(e) Seller has appointed Buyer as its true and lawful attorney-in-fact, in the name of Seller,
but on behalf of Buyer, to pursue and enforce any and all rights of Seller under the Policies with
respect to any occurrence, claim or loss with respect to the Business or any Purchased Asset or
Assumed Liability to the extent attributable to events that occurred prior to the Closing. Seller
agrees that the foregoing appointment shall be coupled with an interest and shall be irrevocable.
Notwithstanding the foregoing or anything else in this Agreement to the contrary, no such insurance
shall affect any right of Buyer to seek indemnification as provided in this Agreement, provided,
however, in no event shall Buyer be entitled to recover more than the total amount of damages
actually incurred and any amounts paid pursuant to such indemnification, to the extent later
recovered from a Policy, will be payable to and property of Seller.
4.21 Suppliers and Customers.
(a) Section 4.21 of the Seller Disclosure Schedule sets forth with respect to the Business:
(i) each supplier from whom purchases exceeded $5,000 for the year ended December 31, 2009 or
that is otherwise material to the Business;
(ii) each supplier who constitutes a sole source of supply to the Business; and
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(iii) each customer that has contributed to the revenues of the Business for each of the
three years ended December 31, 2009, showing the dollar amount of net revenues by project for each
such customer for each such year.
(b) Except as set forth in Section 4.21 of the Seller Disclosure Schedule, the relationships
of the Business with each supplier and customer required to be listed in Section 4.21 of the Seller
Disclosure are good commercial working relationships. No such supplier or customer has canceled or
otherwise terminated, or to Seller’s Knowledge, threatened to cancel or otherwise terminate, its
relationship with the Business. Seller has not received written notice that any such supplier or
customer may cancel, terminate or otherwise materially and adversely modify its relationship with
the Business or limit its services, supplies or materials to the Business, either as a result of
the consummation of the transactions contemplated by this Agreement or otherwise.
4.22 Solvency.
(a) Seller is not insolvent nor will Seller be rendered insolvent by any of the transactions
contemplated by this Agreement and the Ancillary Agreements. “Insolvent” means, with respect to any
Person, that the sum of the debts and other probable Liabilities of such Person exceeds the present
fair saleable value of such Person’s assets.
(b) Immediately after giving effect to the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements: (i) Seller will be able to pay its Liabilities as they
become due in the usual course of its business, (ii) Seller will not have unreasonably small
capital with which to conduct its present or proposed business, (iii) Seller will have assets
(calculated at fair market value) that exceed its Liabilities, and (iv) taking into account all
pending and threatened litigation, final judgments against Seller in actions for money damages are
not reasonably anticipated to be rendered at a time when, or in amounts such that, Seller will be
unable to satisfy any such judgments promptly in accordance with their terms (taking into account
the maximum probable amount of such judgments in any such actions and the earliest reasonable time
at which such judgments might be rendered) as well as all other obligations of Seller. The cash
available to Seller, after taking into account all other anticipated uses of the cash, will be
sufficient to pay all such Liabilities and judgments promptly in accordance with their terms.
4.23 Brokers or Finders. Seller represents, as to itself and its Affiliates, that no
agent, broker, investment banker or other firm or Person is or will be entitled to any broker’s or
finder’s fee or any other commission or similar fee in connection with any of the transactions
contemplated by this Agreement and the Ancillary Agreements, except Xxxxxxxxx Xxxxxx, Inc., whose
fees and expenses will be paid by Seller.
4.24 Completeness of Disclosure. No representation or warranty by Seller in this
Agreement, and no statement made by Seller in the Seller Disclosure Schedule, the Ancillary
Agreements or any certificate or other document furnished or to be furnished to Buyer pursuant
hereto contains or will at the Closing contain any untrue statement of a
36
material fact or omits or will omit to state a material fact required to be stated herein or
therein or necessary to make any statement herein or therein not misleading. Except as
specifically set forth in this Agreement or the Seller Disclosure Schedule, there are no facts or
circumstances of which Seller is aware that have had or could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the Purchased Assets or the
condition (financial or otherwise), operations, or results of operations of the Business or Seller.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that each statement contained in this ARTICLE V is
true and correct as of the date hereof, except as set forth in the disclosure schedule dated and
delivered as of the date hereof by Buyer to Seller (the “Buyer Disclosure Schedule”), which is
attached to this Agreement and is designated therein as being the Buyer Disclosure Schedule, or in
the Buyer’s filings with the Securities and Exchange Commission (“Buyer Public Filings”). The
Buyer Disclosure Schedule shall be arranged in paragraphs corresponding to each representation and
warranty set forth in this ARTICLE V. Each exception to a representation and warranty set forth in
the Buyer Disclosure Schedule shall qualify the specific representation and warranty which is
referenced in the applicable paragraph of the Buyer Disclosure Schedule, and no other
representation or warranty.
5.1 Organization and Good Standing. Buyer is a corporation duly organized, validly
existing and in good standing under the Laws of the jurisdiction of its incorporation and has the
requisite corporate power to own, lease and operate its properties and to carry on its business as
now being conducted.
5.2 Authority and Enforceability. Buyer has the requisite corporate power and
authority to enter into this Agreement and the Ancillary Agreements to which it is a party and to
consummate the transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the Ancillary Agreements to which Buyer is a party and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all necessary corporate
action on the part of Buyer. This Agreement has been, and the Ancillary Agreements to which Buyer
is a party will be, duly executed and delivered by Buyer and, assuming due authorization, execution
and delivery by Seller, constitutes the valid and binding obligation of Buyer, enforceable against
it in accordance with their respective terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting or relating to
creditors’ rights generally, and (b) the availability of injunctive relief and other equitable
remedies.
5.3 No Conflicts; Consents.
(a) The execution and delivery of this Agreement by Buyer does not, and the execution and
delivery of the Ancillary Agreements to which Buyer is a party and
37
the consummation of the transactions contemplated hereby and thereby will not, (i) violate the
provisions of any of the Charter Documents of Buyer, (ii) violate any Contract to which Buyer is a
party, (iii) to the knowledge of Buyer, violate any Law of any Governmental Entity applicable to
Buyer on the date hereof, or (iv) to the knowledge of Buyer, result in the creation of any Liens
upon any of the assets owned or used by Buyer, except in each such case where such violation or
Lien would not reasonably be expected materially to impair or delay the ability of Buyer to perform
its obligations under this Agreement or the Ancillary Agreements.
(b) No Authorization or Order of, registration, declaration or filing with, or notice to any
Governmental Entity is required by Buyer in connection with the execution and delivery of this
Agreement and the Ancillary Agreements to which it is a party and the consummation of the
transactions contemplated hereby and thereby, except for such Authorizations, Orders,
registrations, declarations, filings and notices the failure to obtain which would not reasonably
be expected to materially impair the ability of Buyer to perform its obligations under this
Agreement and the Ancillary Agreements to which Buyer is a party.
5.4 Availability of Shares. Buyer has available sufficient shares of Common Stock (or
securities or other consideration issued in exchange therefore pursuant to a Change of Control) to
pay the Purchase Price. Such shares of Common Stock, have been duly authorized and, when issued
pursuant to this Agreement, will be fully paid and nonassessable and issued in compliance with all
applicable federal and state securities laws.
5.5 Brokers or Finders. Buyer represents, as to itself and its Affiliates, that no
agent, broker, investment banker or other firm or Person is or will be entitled to any broker’s or
finder’s fee or any other commission or similar fee in connection with any of the transactions
contemplated by this Agreement and the Ancillary Agreements.
5.6 Financial Statements. The audited consolidated balance sheet and statements of
income, changes in shareholders’ equity and cash flows of Buyer and its consolidated subsidiaries
as of December 31, 2008 and 2007, and for each of the years then ended, and the unaudited
consolidated balance sheet and statement of income of Buyer and its consolidated subsidiaries as
of, and for the nine-month period ended, September 30, 2009, were prepared in accordance with GAAP
and present fairly the financial position and results of operations of Buyer and its consolidated
subsidiaries at the dates and for the periods indicated therein, except that the financial
statements for the nine-month period ended September 30, 2009 do not include footnotes or normal
year-end adjustments.
5.7 No Material Adverse Change. Since December 31, 2009, there has been no material
adverse change in or with respect to the financial condition of Buyer.
5.8 Litigation.
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(a) There is no Action, (i) pending or, to Buyer’s Knowledge, threatened against or, to
Buyer’s Knowledge affecting Buyer, or (ii) that challenges or seeks to prevent, enjoin or otherwise
delay the transactions contemplated by this Agreement or the Ancillary Agreements. To the Buyer’s
Knowledge no event has occurred or circumstances exist that may give rise or serve as a basis for
any such Action. To Buyer’s Knowledge there is no Action against any current or former director or
employee of the Business with respect to which Buyer has or is reasonably likely to have an
indemnification obligation.
(b) There is no unsatisfied judgment, penalty or award against or affecting Buyer or any of
its assets, properties or rights.
5.9 Capitalization.
(a) The total number of shares of capital stock and the par value thereof which Buyer is
authorized to issue and the number of such shares which are issued and outstanding are described in
the Buyer Public Filings.
(b) No shares of Buyer’s capital stock are held as treasury stock.
(c) Except as described in the Buyer Public Filings, there are no outstanding rights, options,
warrants, subscriptions, calls, puts, convertible securities, phantom stock plans or other
agreements of any character or nature under which Buyer is or may become obligated to issue, redeem
or repurchase any of its securities and there are no outstanding preemptive rights, rights of first
refusal or similar rights to subscribe for or acquire any securities of Buyer.
(d) Except as described in the Buyer Public Filings, there are no voting trust agreements or
other contracts or agreements restricting voting or dividend rights or transferability with respect
to the outstanding shares of capital stock of Buyer.
5.10 Solvency. Buyer is not insolvent (as defined in Section 4.22) nor will Buyer be
insolvent immediately after giving effect to the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements.
5.11 Completeness of Disclosure. No representation or warranty by Buyer in this
Agreement, and no statement made by Buyer in the Buyer Disclosure Schedule, the Ancillary
Agreements or any certificate or other document furnished or to be furnished to Seller pursuant
hereto contains or will at the Closing contain any untrue statement of a material fact or omits or
will omit to state a material fact required to be stated herein or therein or necessary to make any
statement herein or therein not misleading. Except as specifically set forth in this Agreement or
the Buyer Disclosure Schedule, there are no facts or circumstances of which Buyer is aware that
have had or could reasonably be expected to have, individually or in the aggregate, a material
adverse effect on the Common Stock or the condition (financial or otherwise), operations, or
results of operations of the business of Buyer.
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ARTICLE VI
COVENANTS OF BUYER AND SELLER
6.1 Regulatory Approvals.
(a) Buyer and Seller shall each promptly apply for, and take all reasonably necessary actions
to obtain or make, as applicable, all Orders and Authorizations of, and all filings with, any
Governmental Entity or other Person required to be obtained or made by it for the consummation of
the transactions contemplated by this Agreement. Each party shall cooperate with and promptly
furnish information to the other party necessary in connection with any requirements imposed upon
such other party in connection with the consummation of the transactions contemplated by this
Agreement.
(b) Seller shall assist Buyer in identifying the Authorizations required by Buyer to operate
and conduct the Business from and after the Closing Date and will either transfer current Business
Authorizations of Seller (to the extent transferable) to Buyer or assist Buyer in obtaining new
Authorizations.
6.2 Public Announcements. Neither Buyer nor Seller shall issue any press releases or
otherwise make any public statements with respect to the transactions contemplated by this
Agreement; provided, however, that Buyer may, without such approval, make such
press releases or other public announcement as it believes are required pursuant to any listing
agreement with any national securities exchange or stock market or applicable securities Laws, in
which case the party required to make the release or announcement shall allow the other party
reasonable time to comment on such release or announcement in advance of such issuance;
provided, further, that each of the parties may make internal announcements to
their respective employees that are consistent with the parties’ prior public disclosures regarding
the transactions contemplated by this Agreement or that are necessary for such party’s satisfaction
of its obligations pursuant to this Agreement and the Ancillary Agreements.
6.3 Names. On the Closing Date, Seller shall deliver to Buyer all such executed
documents as may be required to change the name of Seller on that date to another name or names
bearing no similarity to any of the Names, including, where applicable, name change amendments and
appropriate name change notices for each state where Seller is qualified to do business. Seller
shall file all such documents within three (3) Business Days after the Closing Date. Seller will
terminate the use of any and all d/b/a’s currently or formerly used by it Related to the Business.
"Names” means “TranSenda International, LLC” or any name, logo or trademark that includes
“TranSenda,” and any other logos or trademarks of the Business transferred to Buyer pursuant to
this Agreement and the Ancillary Agreements.
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6.4 Employees.
(a) Prior to the execution of this Agreement, Seller has provided access to Buyer to the
facilities and the personnel records of Seller for the purpose of preparing for and conducting
employment interviews with Business Employees. Buyer shall not be obligated to offer employment to
any Business Employee.
(b) Buyer may offer employment to any Business Employee on such terms and conditions as it
deems appropriate in its sole discretion, such employment to be contingent upon and effective
immediately following the Closing. Seller shall use its reasonable best efforts to assist Buyer in
employing as new employees of Buyer, all Business Employees to whom Buyer has offered employment
pursuant to this Section 6.4(b). The Business Employees who accept Buyer’s offer of employment and
commence employment with Buyer shall be referred to, collectively, as “Transferred Employees.”
Seller shall terminate the employment of all Transferred Employees with Seller effective
immediately prior to the Closing.
(c) Any and all Liabilities relating to or arising out of the employment, or cessation of
employment, of any Business Employee (whether or not a Transferred Employee) on or prior to the
close of business on the Closing Date shall be the sole responsibility of Seller, including wages
and other remuneration due through the close of business on the Closing Date. Any and all
Liabilities relating to or arising out of the employment, or cessation of employment of any
Transferred Employee after the Closing Date shall be the sole responsibility of Buyer.
(d) From and after the Closing Date, Buyer shall offer to Transferred Employees Benefit Plans
and arrangements consistent with Buyer’s practices as to its employees. Buyer shall not assume any
Liability under any of the Seller Benefit Plans except for vacation and sick leave for Transferred
Employees. Buyer shall credit each Transferred Employee with his or her vacation and sick leave
accrued on or before the Closing Date.
(e) Seller shall be liable for any severance, separation, deferred compensation or similar
benefits that are payable (i) to any Person who is or was an employee of Seller and who is not a
Transferred Employee, including any Person whose employment with the Business was terminated prior
to the Closing (“Seller Employees”), and (ii) to any Transferred Employee, to the extent that such
Transferred Employee’s right to deferred compensation or similar benefits arises as a result of the
transactions contemplated by this Agreement and the Ancillary Agreements.
(f) Seller shall be liable for the administration and payment of all workers’ compensation
Liabilities and benefits with respect to (i) Transferred Employees to the extent resulting from
claims, events, circumstances, exposures, conditions or occurrences occurring on or prior to the
Closing, and (ii) Seller Employees. Buyer shall be liable for the administration and payment of
all workers’ compensation Liabilities and benefits with respect to Transferred Employees to the
extent resulting from claims,
41
events, circumstances, exposures, conditions or occurrences occurring after the Closing Date.
(g) Seller shall be liable for the administration and payment of all health and welfare
Liabilities and benefits under the Seller Benefit Plans with respect to (i) Transferred Employees
to the extent resulting from claims, events, circumstances, exposures, conditions or occurrences
occurring on or prior to the Closing, and (ii) Seller Employees. Buyer shall be liable for the
administration and payment of all health and welfare Liabilities and benefits under Buyer’s Benefit
Plans with respect to Transferred Employees participating therein to the extent resulting from
claims, events, circumstances, exposures, conditions or occurrences occurring after the Closing
Date.
(h) Seller shall retain and perform all Liabilities and maintain all insurance under the
Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) with respect to Seller Employees
and their covered dependents; provided that Buyer shall perform all of its
obligations under COBRA with respect to Transferred Employees that become covered by any group
health insurance plan of Buyer.
(i) Buyer shall have no obligation with respect to any Business Employee or any other employee
of Seller other than Transferred Employees, and in such event as qualified by this Section 6.4.
(j) Nothing in this Agreement confers upon any Business Employee or Transferred Employee any
rights or remedies of any nature or kind whatsoever under or by reason of this Section 6.4.
Nothing in this Agreement shall limit the right of Buyer to terminate or reassign any Transferred
Employee after the Closing or to change the terms and conditions of his or her employment in any
manner.
6.5 Taxes.
(a) Buyer shall pay all federal, state and local sales, documentary and real estate and other
transfer Taxes, if any, due as a result of the purchase, sale or transfer of the Purchased Assets
in accordance herewith whether imposed by Law on Seller or Buyer.
(b) All real property Taxes, personal property Taxes and similar ad valorem obligations levied
with respect to the Purchased Assets for a taxable period that includes (but does not end on) the
Closing Date shall be apportioned between Seller and Buyer as of the Closing Date based on the
number of days of such taxable period included in the period ending with and including the Closing
Date (with respect to any such taxable period, the “Pre-Closing Tax Period”), and the number of
days of such taxable period beginning after the Closing Date (with respect to any such taxable
period, the “Post-Closing Tax Period”). Seller shall be liable for the proportionate amount of
such Taxes that is attributable to the Pre-Closing Tax Period, and Buyer shall be liable for the
proportionate amount of such Taxes that is attributable to the Post-Closing Period. If bills for
such Taxes have not been issued as of the Closing Date, each party shall pay the amounts due
promptly upon receipt of such bills.
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(c) Buyer and Seller agree to furnish or cause to be furnished to each other, upon request, as
promptly as practicable, such information and assistance relating to the Business, the Purchased
Assets and Assumed Liabilities (including access to books and records) as is reasonably necessary
for the filing of all Tax Returns, the making of any election relating to Taxes, the preparation
for any audit by any Taxing Authority, and the prosecution or defense of any Action relating to any
Tax. Any expenses incurred in furnishing such information or assistance shall be borne by the
party requesting it.
6.6 Audited Financial Statements.
(a) On or before the Closing, the Buyer shall pay to Seller a total of $35,000 as
reimbursement for the cost of the Audit and Seller’s pre-closing expenses related to its assistance
in preparing the Audit.
(b) As part of the post-Closing services to be provided by Seller pursuant to the terms of the
Transition Services Agreement, (a) Seller shall assist Buyer in obtaining the auditor consent with
respect to the audited financial statements of Seller for the year ended December 31, 2009 from
McGladrey & Xxxxxx, Certified Public Accountants (“McGladrey”), suitable for filing with the
Securities and Exchange Commission in accordance with Regulation S-X as soon as possible following
the Closing Date, and (b) Seller’s management shall prepare such financial statements of the Seller
(including pro forma financial information if required) as may be requested by Buyer and McGladrey
to enable Buyer to comply on a timely basis with applicable securities Laws.
6.7 Bulk Sales Laws. Buyer and Seller hereby waive compliance by Buyer and Seller
with the bulk sales Law and any other similar Laws in any applicable jurisdiction in respect of the
transactions contemplated by this Agreement and the Ancillary Agreements, it being understood that
such waiver shall not impose on Buyer any responsibility for any Taxes arising from the Pre-Closing
Period for which Seller is liable in accordance with this ARTICLE VI.
6.8 Discharge of Business Obligations After Closing.
(a) From and after the Closing, Seller shall pay and discharge on a timely basis all of the
Excluded Liabilities and Buyer shall pay and discharge all of the Assumed Liabilities.
(b) From and after the Closing, if Seller or any of its respective Affiliates receives or
collects any funds relating to any Accounts Receivable or any other Purchased Asset, Seller or its
Affiliate shall remit such funds to Buyer within five (5) Business Days after its receipt thereof.
From and after the Closing, if Buyer receives or collects any funds relating to any Excluded Asset,
Buyer shall remit any such funds to Seller within five (5) Business Days after its receipt thereof.
(c) Effective upon the Closing, Seller shall appoint Buyer as its true and lawful
attorney-in-fact, in the name of Seller, but on behalf of Buyer to (i) receive and open all mail,
packages and other communications addressed to Seller Related to the
43
Business, and (ii) demand and receive all Accounts Receivable and endorse without recourse the
name of Seller on any check or any other evidences of Indebtedness received by Buyer on account of
the Business and the Purchased Assets transferred to Buyer hereunder. Seller agrees that the
foregoing appointment shall be coupled with an interest and shall be irrevocable.
6.9 Access to Books and Records. Each of Seller and Buyer shall preserve until the
fifth (5th) anniversary of the Closing Date all records possessed or to be possessed by such party
relating to any of the assets, Liabilities or business of the Business prior to the Closing. After
the Closing Date, where there is a legitimate business purpose, such party shall provide the other
party with access, upon prior reasonable written request specifying the need therefor, during
regular business hours, to (i) the officers and employees of such party and (ii) the books of
account and records of such party, but, in each case, only to the extent relating to the assets,
Liabilities or business of the Business prior to the Closing, and the other party and its
representatives shall have the right to make copies of such books and records at their sole cost;
provided, however, that the foregoing right of access shall not be exercisable in
such a manner as to interfere unreasonably with the normal operations and business of such party.
Such records may nevertheless be destroyed by a party if such party sends to the other party
written notice of its intent to destroy records, specifying with particularity the contents of the
records to be destroyed. Such records may then be destroyed after the thirtieth (30th) day after
such notice is given unless the other party objects to the destruction in which case the party
seeking to destroy the records shall deliver such records to the objecting party at the objecting
party’s cost.
6.10 Confidentiality. On or after the Closing Date, Seller will, and will cause its
Affiliates to, hold, and will use its reasonable best efforts to cause its and their respective
Representatives to hold, in confidence any and all information, whether written or oral, concerning
the Purchased Assets, except to the extent that Seller can show that such information (a) is in the
public domain through no fault of Seller or any of its Affiliates or their respective
Representatives or (b) is lawfully acquired by Seller or any of its Affiliates after the Closing
Date from sources that are not prohibited from disclosing such information by a legal, contractual
or fiduciary obligation. If Seller or any of its Affiliates or Representatives is compelled to
disclose any such information by judicial or administrative process or by other requirements of
Law, Seller shall promptly notify Buyer in writing and shall disclose only that portion of such
information that Seller is advised by its counsel in writing is legally required to be disclosed;
provided that Seller shall exercise its reasonable best efforts to obtain an
appropriate protective order or other reasonable assurance that confidential treatment will be
accorded such information.
6.11 Release of Liens. If and to the extent Buyer has agreed to proceed with the
Closing with any Lien existing on any Personal Property that is a Purchased Asset, then Seller
shall cause to be released all Liens in and upon any of the Purchased Assets within sixty (60) days
of the Closing Date (all of such Liens are set forth in the Seller Disclosure Schedule).
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6.12 Restrictive Covenants.
(a) Seller covenants that, commencing on the Closing Date and ending on the third anniversary
of the Closing Date (the “Noncompetition Period”), Seller shall not, and it shall cause its
Subsidiaries not to, directly or indirectly, in any capacity, engage in or have any direct or
indirect ownership interest in, or permit Seller’s or any such Subsidiary’s name to be used in
connection with, any business anywhere in the world which is engaged, either directly or
indirectly, in the business of developing, manufacturing, marketing or selling any products or
equipment or providing any services which are competitive with products or equipment manufactured,
marketed, sold or under development by, or services provided by, the Business (the “Restricted
Business”). It is recognized that the Restricted Business is expected to be conducted throughout
the world and that more narrow geographical limitations of any nature on this non-competition
covenant (and the non-solicitation covenant set forth in Section 6.12(b)) are therefore not
appropriate.
(b) Seller covenants that during the Noncompetition Period, Seller shall not, and it shall
cause its Subsidiaries not to, directly or indirectly solicit the employment or engagement of
services of any person who is offered employment by Buyer pursuant to Section 6.4 or is or was
employed as an employee, consultant or contractor in the Business during the Noncompetition Period
on a full- or part-time basis.
(c) Seller covenants that during the Noncompetition Period, Seller shall not, and it shall
cause its Subsidiaries not to, directly or indirectly, solicit or entice, or attempt to solicit or
entice, any clients or customers of Buyer, or potential clients or customers of Buyer, in either
case for purposes of diverting their business or services from Buyer.
(d) Seller acknowledges that the restrictions contained in this Section 6.12 are reasonable
and necessary to protect the legitimate interests of Buyer and constitute a material inducement to
Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement.
Seller acknowledges that any violation of this Section 6.12 will result in irreparable injury to
Buyer and agrees that Buyer shall be entitled to preliminary and permanent injunctive relief,
without the necessity of proving actual damages, as well as an equitable accounting of all
earnings, profits and other benefits arising from any violation of this Section 6.12, which rights
shall be cumulative and in addition to any other rights or remedies to which Buyer may be entitled.
Without limiting the generality of the foregoing, the Noncompetition Period shall be extended for
an additional period equal to any period during which Seller or any Affiliate is in breach of its
obligations under this Section 6.12.
(e) In the event that any covenant contained in this Section 6.12 should ever be adjudicated
to exceed the time, geographic, product or service or other limitations permitted by applicable Law
in any jurisdiction, then any court is expressly empowered to reform such covenant, and such
covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, product or
service or other limitations permitted by applicable Law. The covenants contained in this
Section 6.12
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and each provision thereof are severable and distinct covenants and provisions. The
invalidity or unenforceability of any such covenant or provision as written shall not invalidate or
render unenforceable the remaining covenants or provisions hereof, and any such invalidity or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or
provision in any other jurisdiction.
6.13 Lock-up. For a period of one (1) year from the Closing Date, the Seller shall
not (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase
any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in clause (i) or (ii)
above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise.
The foregoing restriction is expressly agreed to preclude the Seller from engaging in any hedging
or other transaction which is designed to or which reasonably could be expected to lead to or
result in a sale or disposition of the Common Stock even if such shares would be disposed of by
someone other than the undersigned. Such prohibited hedging or other transactions would include
without limitation any short sale or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any of the shares of Common Stock or with
respect to any security that includes, relates to, or derives any significant part of its value
from such shares.
6.14 Further Assurances. Buyer and Seller shall execute such documents and other
instruments and take such further actions as may be reasonably required or desirable to carry out
the provisions of this Agreement and the Ancillary Agreements and to consummate the transactions
contemplated hereby and thereby. Upon the terms and subject to the conditions hereof, Buyer and
Seller shall each use its respective reasonable best efforts to (a) take or cause to be taken all
actions and to do or cause to be done all other things necessary, proper or advisable to consummate
and make effective as promptly as practicable the transactions contemplated by this Agreement and
the Ancillary Agreements and (b) obtain in a timely manner all Consents and Authorizations and
effect all necessary registrations and filings. From time to time after the Closing, at Buyer’s
request, Seller shall execute, acknowledge and deliver to Buyer such other instruments of
conveyance and transfer and will take such other actions and execute and deliver such other
documents, certifications and further assurances as Buyer may reasonably require in order to vest
more effectively in Buyer, or to put Buyer more fully in possession of, any of the Purchased
Assets.
ARTICLE VII
CONDITIONS TO CLOSING
7.1 Conditions to Obligations of Buyer and Seller. The obligations of Buyer and
Seller to consummate the transactions contemplated by this Agreement are subject to the
satisfaction on or prior to the Closing Date of the following conditions:
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(a) All Authorizations and Orders of, declarations and filings with, and notices to any
Governmental Entity, required to permit the consummation of the transactions contemplated by this
Agreement shall have been obtained or made and shall be in full force and effect.
(b) No temporary restraining order, preliminary or permanent injunction or other Order
preventing the consummation of the transactions contemplated by this Agreement shall be in effect.
No Law shall have been enacted or shall be deemed applicable to the transactions contemplated by
this Agreement which makes the consummation of such transactions illegal.
7.2 Conditions to Obligation of Buyer. The obligation of Buyer to consummate the
transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Buyer in
its sole discretion) of the following further conditions:
(a) The representations and warranties of Seller set forth in this Agreement shall have been
true and correct at and as of the date hereof and shall be true and correct at and as of the
Closing Date as if made at and as of the Closing Date, except to the extent that such
representations and warranties refer specifically to an earlier date, in which case such
representations and warranties shall have been true and correct as of such earlier date.
(b) Seller shall have performed or complied with all obligations and covenants required by
this Agreement to be performed or complied with by Seller at or prior to the Closing.
(c) Buyer shall have received a certificate dated the Closing Date signed on behalf of Seller
by a Manager of Seller to the effect that the conditions set forth in Sections 7.2(a) and 7.2(b)
have been satisfied (the “Seller Closing Certificate”).
(d) There shall have been no material adverse change in the Purchased Assets or the condition
(financial or otherwise), operations, or results of operations of the Business.
(e) No Action shall be pending or threatened before any court or other Governmental Entity or
before any other Person wherein an unfavorable Order would (i) prevent consummation of any of the
transactions contemplated by this Agreement or the Ancillary Agreements, (ii) affect adversely the
right of Buyer to own the Purchased Assets or (iii) restrain or prohibit Buyer’s ownership or
operation (or that of its Subsidiaries or Affiliates) of all or any material portion of the
Business or Purchased Assets, or compel Buyer or any of its Subsidiaries or Affiliates to dispose
of or hold separate all or any material portion of the Business or Purchased Assets or all or any
material portion of the business and assets of Buyer and its Subsidiaries. No such Order shall be
in effect.
(f) No Law shall have been enacted or shall be deemed applicable to the transactions
contemplated by this Agreement or the Ancillary Agreements which has any of the effects set forth
in clauses (i) through (iii) in Section 7.2(e).
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(g) Seller shall have obtained the Consent of each Person whose Consent is required under the
Material Contracts set forth in Schedule 7.2(g) and shall have provided evidence of each such
Consent in form and substance satisfactory to Buyer.
(h) Buyer shall have received all Authorizations that are necessary for it to conduct the
Business substantially as conducted by Seller on the Balance Sheet Date and the date of this
Agreement.
(i) Seller shall have delivered to Buyer all agreements and other documents required to be
delivered by Seller to Buyer pursuant to Section 3.2 of this Agreement.
(j) Buyer shall have received a certificate of the Secretary of Seller dated the Closing Date
and certifying: (A) that attached thereto are true and complete copies of all resolutions adopted
by the common members of Seller in connection with the transactions contemplated by this Agreement
and the Ancillary Agreements, and that all such resolutions are in full force and effect and are
all the resolutions adopted in connection with the transactions contemplated by this Agreement and
the Ancillary Agreements; and (B) to the incumbency and specimen signature of the Manager of Seller
executing this Agreement and/or the Ancillary Agreements, and a certification by a Manager of
Seller as to the incumbency and signature of the Secretary of Seller.
(k) Buyer shall have received evidence in form and substance satisfactory to Buyer that all
Liens other than Permitted Liens with respect to the Purchased Assets have been released.
(l) Buyer shall have received the written opinion of Seller’s counsel, dated the Closing Date,
in the form of Exhibit D hereto.
(m) Buyer shall have completed and shall be fully satisfied in its sole discretion with the
results of its review of, and its other due diligence investigations with respect to, the Business.
Such review may include an analysis by Buyer or its representatives of (i) the results of any
environmental assessment of the Real Property that Buyer shall deem appropriate and (ii)
environmental and OSHA practices and procedures of Seller.
(n) Buyer shall have received from all Transferred Employees a Confidentiality, Assignment of
Invention, Non-Competition and Non-Solicitation Agreement, whereby such Transferred Employees agree
to be bound by certain confidentiality, assignment of invention, non-competition and
non-solicitation obligations.
(o) Buyer shall have received the executed Transition Services Agreement.
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7.3 Conditions to Obligation of Seller. The obligation of Seller to consummate the
transactions contemplated by this Agreement is subject to the satisfaction (or waiver by Seller in
its sole discretion) of the following further conditions:
(a) The representations and warranties of Buyer set forth in this Agreement shall have been
true and correct at and as of the date hereof and shall be true and correct at and as of the
Closing Date as if made at and as of the Closing Date, except to the extent that such
representations and warranties refer specifically to an earlier date, in which case such
representations and warranties shall have been true and correct as of such earlier date.
(b) Buyer shall have performed or complied with all obligations and covenants required by this
Agreement to be performed or complied with by Buyer at or prior to the Closing.
(c) Seller shall have received a certificate dated the Closing Date signed on behalf of Buyer
by the President of Buyer to the effect that the conditions set forth in Section 7.3(a) and 7.3(b)
have been satisfied (the “Buyer Closing Certificate”).
(d) No Action shall be pending or threatened before any court or other Governmental Entity or
other Person wherein an unfavorable Order would (i) prevent consummation of any of the transactions
contemplated by this Agreement and the Ancillary Agreements or (ii) cause any of the transactions
contemplated by this Agreement and the Ancillary Agreements to be rescinded following consummation.
No such Order shall be in effect.
(e) Buyer shall have delivered to Seller all agreements and other documents required to be
delivered by Buyer to Seller pursuant to Section 3.3 of this Agreement.
(f) Seller shall have received a certificate of the Secretary of Buyer dated the Closing Date
and certifying: (A) that attached thereto are true and complete copies of all resolutions adopted
by the Board of Directors of Buyer in connection with the transactions contemplated by this
Agreement and the Ancillary Agreements, and that all such resolutions are in full force and effect
and are all the resolutions adopted in connection with the transactions contemplated by this
Agreement and the Ancillary Agreements; and (B) to the incumbency and specimen signature of each
officer of Buyer executing this Agreement and the Ancillary Agreements to which it is a party, and
a certification by another officer of Buyer as to the incumbency and signature of the Secretary of
Buyer.
(g) Seller shall have received the executed Transition Services Agreement.
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ARTICLE VIII
INDEMNIFICATION
8.1 Survival.
(a) All representations and warranties contained in this Agreement, the Ancillary Agreements,
any Schedule, certificate or other document delivered pursuant to this Agreement or the Ancillary
Agreements, shall survive the Closing for a period of one (1) year, except that the representation
and warranty of the Seller contained in Section 4.8 (Taxes) shall survive the Closing until the
expiration of the applicable statute of limitations period (after giving effect to any waivers and
extensions thereof).
(b) The covenants and agreements which by their terms do not contemplate performance after the
Closing shall survive the Closing for a period of one (1) year. The covenants and agreements which
by their terms contemplate performance after the Closing Date shall survive the Closing until the
earlier of such time as such covenants and agreements shall have been performed in full or the
first anniversary of the Closing Date; provided, however, the Restrictive Covenants in Section 6.12
shall survive for the period expressly set forth therein.
(c) The period for which a representation or warranty, covenant or agreement survives the
Closing is referred to herein as the “Applicable Survival Period.” In the event notice of claim
for indemnification under Section 8.2 or 8.3 is given within the Applicable Survival Period, the
representation or warranty, covenant or agreement that is the subject of such indemnification claim
(whether or not formal legal action shall have been commenced based upon such claim) shall survive
with respect to such claim until such claim is finally resolved. The Indemnitor shall indemnify the
Indemnitee for all Losses (subject to the limitations set forth herein, if applicable) that the
Indemnitee may incur in respect of such claim, regardless of when incurred.
8.2 Indemnification by Seller.
(a) Seller shall indemnify and defend Buyer and its Affiliates and respective stockholders,
members, managers, officers, directors, employees, agents, successors and assigns (the “Buyer
Indemnitees”) against, and shall hold them harmless from, any and all losses, damages, claims
(including third party claims), charges, interest, penalties, Taxes, diminution in value, costs and
expenses (including legal, consultant, accounting and other professional fees, and fees and costs
incurred in enforcing rights under this Section 8.2), and such amounts due to third parties and
Governmental Entities from Buyer even if such third party or Governmental Entity has made no formal
claim (collectively, “Losses”), in each case resulting from, arising out of, or incurred by any
Buyer Indemnitee in connection with, or otherwise with respect to:
(i) the failure of any representation and warranty or other statement by Seller contained in
this Agreement, the Ancillary Agreements, the Seller Disclosure Schedule or any certificate or
other document furnished or to be furnished to
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Buyer in connection with the transactions contemplated by this Agreement and the Ancillary
Agreements to be true and correct in all respects as of the date of this Agreement and as of the
Closing Date;
(ii) any breach of any covenant or agreement of Seller contained in this Agreement, the
Ancillary Agreements, the Seller Disclosure Schedule or any certificate or other document furnished
or to be furnished to Buyer in connection with the transactions contemplated by this Agreement and
the Ancillary Agreements;
(iii) any Excluded Liability including any Pre-Closing Environmental Liability, regardless of
whether or not the Seller Disclosure Schedule discloses any such Excluded Liability;
(iv) any fees, expenses or other payments incurred or owed by Seller to any agent, broker,
investment banker or other firm or person retained or employed by it in connection with the
transactions contemplated by this Agreement and the Ancillary Agreements; and
fraudulent transfer Laws or the failure to comply with any bulk sales Laws and similar Laws.
(b) Seller shall not be liable for any Loss or Losses pursuant to Section 8.2(a) (“Buyer
Warranty Losses”) (i) unless and until the aggregate amount of all Buyer Warranty Losses incurred
by the Buyer Indemnitees exceeds $40,000, in which event Seller shall be liable for all Buyer
Warranty Losses in excess of $40,000, and (ii) to the extent that Buyer Warranty Losses exceed
twenty-five percent (25%) of the Purchase Price; provided, however,
nothing contained in this Section 8.2(b) shall be deemed to limit or restrict in any manner any
rights or remedies which Buyer has, or might have, at Law, in equity or otherwise, based on fraud
or a willful misrepresentation or willful breach of warranty hereunder.
(c) Buyer Indemnitees shall recover all Losses actually incurred by Buyer Indemnitees, and for
which any Buyer Indemnitee is entitled to be indemnified under this Section 8.2 (which entitlement
has been finally determined or is not disputed by Seller), first by means of setoff of any such
Losses against the Indemnity Escrow Amount pursuant to Section 3.3, and then pursuant to this
Section 8.2 only, except for Buyer Warranty Losses which are based on fraud or a willful
misrepresentation or willful breach of a warranty hereunder for which this limitation shall not
apply.
8.3 Indemnification by Buyer.
(a) Buyer shall indemnify and defend Seller and its Affiliates and their respective
stockholders, members, managers, officers, directors, employees, agents, successors and assigns
(the “Seller Indemnitees”) against, and shall hold them harmless from, any and all Losses resulting
from, arising out of, or incurred by any Seller Indemnitee in connection with, or otherwise with
respect to:
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(i) the failure of any representation and warranty or other statement by Buyer contained in
this Agreement, the Ancillary Agreements, the Buyer Disclosure Schedule or any certificate or other
document furnished or to be furnished to Seller pursuant to this Agreement to be true and correct
in all respects as of the date of this Agreement and as of the Closing Date;
(ii) any breach of any covenant or agreement of Buyer contained in this Agreement, the
Ancillary Agreements, the Buyer Disclosure Schedule or any certificate or other document furnished
or to be furnished to Seller in connection with the transactions contemplated hereby and thereby;
and
(iii) any failure to perform when due the Assumed Liabilities.
(b) Buyer shall not be liable for any Loss or Losses pursuant to Section 8.3(a) (“Seller
Warranty Losses”) (i) unless and until the aggregate amount of all Buyer Warranty Losses incurred
by the Buyer Indemnitees exceeds $40,000, in which event Seller shall be liable for all Buyer
Warranty Losses in excess of $40,000 and (ii) to the extent that Seller Warranty Losses exceed
twenty-five percent (25%) of the Purchase Price, as may be adjusted as provided herein,
provided, however, nothing contained in this Section 8.3(b) shall be deemed to
limit or restrict in any manner any rights or remedies which Seller has, or might have, at Law, in
equity or otherwise, based (i) on fraud or a willful misrepresentation or willful breach of
warranty hereunder, or (ii) Buyer’s breach of its obligations to make payment of the Purchase
Price.
8.4 Indemnification Procedures for Third Party Claims.
(a) In the event that an Indemnitee receives notice of the assertion of any claim or the
commencement of any Action by a third party in respect of which indemnity may be sought under the
provisions of this ARTICLE VIII (“Third Party Claim”), the Indemnitee shall promptly notify the
Indemnitor in writing of such Third Party Claim (“Notice of Claim”). Failure or delay in notifying
the Indemnitor will not relieve the Indemnitor of any Liability it may have to the Indemnitee,
except and only to the extent that such failure or delay causes actual harm to the Indemnitor with
respect to such Third Party Claim. The Notice of Claim shall set forth the amount, if known, or,
if not known, an estimate of the foreseeable maximum amount of claimed Losses (which estimate shall
not be conclusive of the final amount of such Losses) and a description of the basis for such Third
Party Claim.
(b) Subject to the further provisions of this Section 8.4, the Indemnitor will have ten (10)
days (or less if the nature of the Third Party Claim requires) from the date on which the
Indemnitor received the Notice of Claim to notify the Indemnitee that the Indemnitor will assume
the defense or prosecution of such Third Party Claim and any litigation resulting therefrom with
counsel of its choice and at its sole cost and expense (a “Third Party Defense”). If the
Indemnitor assumes the Third Party Defense in accordance with the preceding sentence, the
Indemnitor shall be conclusively deemed to have acknowledged that the Third Party Claim is within
the scope of its indemnity obligation hereunder and shall hold the Indemnitee harmless from and
against the full
52
amount of any Losses resulting therefrom (subject to the terms and conditions of this
Agreement). Any Indemnitee shall have the right to employ separate counsel in any such Third Party
Defense and to participate therein, but the fees and expenses of such counsel shall not be at the
expense of the Indemnitor unless (A) the Indemnitor shall have failed, within the time after having
been notified by the Indemnitee of the existence of the Third Party Claim as provided in the first
sentence of this paragraph (b), to assume the defense of such Third Party Claim, or (B) the
employment of such counsel has been specifically authorized in writing by the Indemnitor, which
authorization shall not be unreasonably withheld.
(c) The Indemnitor will not be entitled to assume the Third Party Defense if:
(i) the Third Party Claim relates to or arises in connection with any criminal proceeding,
action, indictment, allegation or investigation;
(ii) under applicable standards of professional conduct, a conflict on any significant issue
exists between the Indemnitee and the Indemnitor in respect of the Third Party Claim;
(iii) upon petition by the Indemnitee, the appropriate court rules that the Indemnitor failed
or is failing to vigorously prosecute or defend such Third Party Claim;
(iv) the Indemnitor fails to provide reasonable assurance to the Indemnitee of its financial
capacity to prosecute the Third Party Defense and provide indemnification in accordance with the
provisions of this Agreement or the Third Party Claim would give rise to Losses which are more than
the amount indemnifiable by the Indemnitor pursuant to this ARTICLE VIII; or
(v) the Third Party Claim relates to or arises in connection with any action related to the
Intellectual Property, or relates to a material customer or material supplier of the Buyer;
provided, however, that (A) the Buyer Indemnitee will be responsible for the cost and expense of
such Third Part Defense; but, provided, further, that the Indemnitor will still be responsible for
any Losses, and (B) Indemnitee will not enter into any settlement without the consent of the
Indemnitor (such consent not to be unreasonably withheld or delayed).
(d) If, by reason of the Third Party Claim, a Lien, attachment, garnishment or execution is
placed upon any of the property or assets of the Indemnitee, the Indemnitor, if it desires to
exercise its right to assume such Third Party Defense, must furnish a satisfactory indemnity bond
to obtain the prompt release of such Lien, attachment, garnishment or execution.
(e) If the Indemnitor assumes a Third Party Defense, it will take all steps necessary in the
defense, prosecution, or settlement of such claim or litigation and will hold all Indemnitees
harmless from and against all Losses caused by or arising out of such Third Party Claim (subject to
the last sentence of Section 8.4(b)). The Indemnitor
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will not consent to the entry of any judgment or enter into any settlement except with the
written consent of the Indemnitee to which the Indemnitor is obligated to furnish indemnification
pursuant to this Agreement; provided that the consent of the Indemnitee shall not
be required if all of the following conditions are met: (i) the terms of the judgment or proposed
settlement include as an unconditional term thereof the giving to the Indemnitees by the third
party of a release of the Indemnitees from all Liability in respect of such Third Party Claim, (ii)
there is no finding or admission of (A) any violation of Law by the Indemnitees (or any Affiliate
thereof), (B) any violation of the rights of any Person and (C) no effect on any other Action or
claims of a similar nature that may be made against the Indemnitees (or any Affiliate thereof), and
(iii) the sole form of relief is monetary damages which are paid in full by the Indemnitor. The
Indemnitor shall conduct the defense of the Third Party Claim actively and diligently, and the
Indemnitee will provide reasonable cooperation in the defense of the Third Party Claim. So long as
the Indemnitor is reasonably conducting the Third Party Defense in good faith, the Indemnitee will
not consent to the entry of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnitor (not to be unreasonably withheld or
delayed). Notwithstanding the foregoing, the Indemnitee shall have the right to pay or settle any
such Third Party Claim; provided that, in such event, subject to the following
sentence, it shall waive any right to indemnity therefor by the Indemnitor for such claim unless
the Indemnitor shall have consented to such payment or settlement (such consent not to be
unreasonably withheld or delayed). If the Indemnitor is not reasonably conducting the Third Party
Defense in good faith, the Indemnitee shall have the right to consent to the entry of any judgment
or enter into any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnitor and the Indemnitor shall reimburse the Indemnitee promptly for all Losses
incurred in connection with such judgment or settlement.
(f) In the event that (i) an Indemnitee gives Notice of Claim to the Indemnitor and the
Indemnitor fails or elects not to assume a Third Party Defense which the Indemnitor had the right
to assume under this Section 8.4 or (ii) the Indemnitor is not entitled to assume the Third Party
Defense pursuant to this Section 8.4, the Indemnitee shall have the right, with counsel of its
choice, to defend, conduct and control the Third Party Defense, at the sole cost and expense of the
Indemnitor. In each case, the Indemnitee shall conduct the Third Party Defense actively and
diligently, and the Indemnitor will provide reasonable cooperation in the Third Party Defense. The
Indemnitee shall have the right to consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim on such terms as it may deem appropriate;
provided, however, that the amount of any settlement made or entry of any
judgment consented to by the Indemnitee without the consent of the Indemnitor shall not be
determinative of the validity of the claim, except with the consent of the Indemnitor (not to be
unreasonably withheld or delayed). Notwithstanding Section 9.6 hereof, in connection with any
Third Party Claim, the Indemnitor hereby consents to the nonexclusive jurisdiction of any court in
which an Action in respect of a Third Party Claim is brought against any Indemnitee for purposes of
any claim that the Indemnitee may have under this ARTICLE VIII with respect to such Action or the
matters alleged therein and agrees that process may be served on the Indemnitor with respect to
such a claim anywhere in the world. If the Indemnitor does not elect to assume a Third Party
54
Defense which it has the right to assume hereunder, the Indemnitee shall have no obligation to
do so.
(g) Each party to this Agreement shall use its commercially reasonable efforts to cooperate
and to cause its employees to cooperate with and assist the Indemnitee or the Indemnitor, as the
case may be, in connection with any Third Party Defense, including attending conferences, discovery
proceedings, hearings, trials and appeals and furnishing records, information and testimony, as may
reasonably be requested; provided that each party shall use its best efforts, in
respect of any Third Party Claim of which it has assumed the defense, to preserve the
confidentiality of all confidential information and the attorney-client and work-product
privileges.
8.5 Indemnification Procedures for Non-Third Party Claims. In the event of a claim
that does not involve a Third Party Claim being asserted against it, the Indemnitee shall send a
Notice of Claim to the Indemnitor. The Notice of Claim shall set forth the amount, if known, or,
if not known, an estimate of the foreseeable maximum amount of claimed Losses (which estimate shall
not be conclusive of the final amount of such Losses) and a description of the basis for such
claim. The Indemnitor will have thirty (30) days from receipt of such Notice of Claim to dispute
the claim and will reasonably cooperate and assist the Indemnitee in determining the validity of
the claim for indemnity. If the Indemnitor does not give notice to the Indemnitee that it disputes
such claim within thirty (30) days after its receipt of the Notice of Claim, the claim specified in
such Notice of Claim will be conclusively deemed a Loss subject to indemnification hereunder.
8.6 Escrow Amount. At the Closing, the Indemnity Escrow Amount shall be delivered to
the Escrow Agent to be held and administered by the Escrow Agent in accordance with the terms of
the Escrow Agreement. Buyer may make a claim against the Indemnity Escrow Amount for the amount of
Losses described in Section 8.2 by sending a Notice of Claim described in Section 8.4 or
Section 8.5 to the Escrow Agent. Buyer’s recourse to the Indemnity Escrow Amount shall be without
prejudice to any and all other remedies Buyer may have pursuant to this ARTICLE VIII.
8.7 Effect of Investigation; Waiver. An Indemnitee’s right to indemnification or
other remedies based upon the representations and warranties and covenants and agreements of the
Indemnitor will not be affected by any investigation or knowledge of the Indemnitee or any waiver
by the Indemnitee of any condition based on the accuracy of any representation or warranty, or
compliance with any covenant or agreement. Such representations and warranties and covenants and
agreements shall not be affected or deemed waived by reason of the fact that the Indemnitee knew or
should have known that any representation or warranty might be inaccurate or that the Indemnitor
failed to comply with any agreement or covenant. Any investigation by such party shall be for its
own protection only and shall not affect or impair any right or remedy hereunder.
8.8 Sole and Exclusive Remedy. Except in case of fraud or intentional
misrepresentation by any party, the rights and remedies of the parties to assert
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indemnification claims and receive indemnification payments pursuant to this ARTICLE VIII
shall be the parties’ sole and exclusive right and remedy for monetary damages under this Agreement
or any conveyance document delivered by any party pursuant to this Agreement. Notwithstanding the
foregoing, each party shall be entitled to seek non-monetary equitable relief, including specific
performance, with respect to any breach by any party of any covenants set forth in this Agreement.
In no event shall any Indemnitor be liable to any Indemnitee for any consequential, special or
punitive damages; provided, however, that the limitation of this sentence shall not
apply (i) in the event of fraud or intentional misrepresentation, (ii) to the extent that an
indemnification claim arises out of a Third Party Claim by a third party that is not an Affiliate
of Indemnitee.
8.9 No Double Recovery. Notwithstanding anything to the contrary herein or in any
Ancillary Agreement, no party shall be entitled to indemnification or reimbursement under any
provision of this Agreement for any amount to the extent such party or its Affiliates has been
indemnified or reimbursed for such amount under any other provision of this Agreement (including
pursuant to any Policy), any Ancillary Agreement, or any document executed in connection with this
Agreement or otherwise. In the event that any Losses for which Seller shall have provided
indemnification to Buyer hereunder are recoverable from one or more Policies, less any expenses
related to such recovery (including, without limitation, reasonable attorneys’ fees), Seller shall
be entitled to such recovery.
ARTICLE IX
MISCELLANEOUS
9.1 Notices. Any notice, request, demand, waiver, consent, approval or other
communication which is required or permitted hereunder shall be in writing and shall be deemed
given (a) on the date established by the sender as having been delivered personally, (b) on the
date delivered by a private courier as established by the sender by evidence obtained from the
courier, (c) on the date sent by facsimile or other electronic transmission, including electronic
mail, pdf or similar means, with confirmation of transmission, if sent during normal business hours
of the recipient, if not, then on the next Business Day, or (d) on the fifth (5th) day after the
date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such
communications, to be valid, must be addressed as follows:
If to Buyer, to:
BioClinica, Inc.
000 Xxxxxxx-Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Facsimile: 000-000-0000
000 Xxxxxxx-Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xxx Xxxxxxx
Facsimile: 000-000-0000
With a required copy to:
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Xxxxxx, Xxxxx & Bockius LLP
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
Facsimile: 000-000-0000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
Facsimile: 000-000-0000
If to Seller, to:
TranSenda International, LLC
00000 Xxx-Xxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxx
Facsimile: 000-000-0000
00000 Xxx-Xxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxx
Facsimile: 000-000-0000
With a required copy to:
Xxxxxx Xxxxxxxx, P.S.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxxx
Facsimile: 206.464.1496
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxxx
Facsimile: 206.464.1496
or to such other address or to the attention of such Person or Persons as the recipient party has
specified by prior written notice to the sending party (or in the case of counsel, to such other
readily ascertainable business address as such counsel may hereafter maintain). If more than one
method for sending notice as set forth above is used, the earliest notice date established as set
forth above shall control.
9.2 Amendments and Waivers.
(a) Any provision of this Agreement may be amended or waived if, and only if, such amendment
or waiver is in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right or privilege hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
(c) To the maximum extent permitted by Law, (i) no waiver that may be given by a party shall
be applicable except in the specific instance for which it was given and (ii) no notice to or
demand on one party shall be deemed to be a waiver of any obligation of such party or the right of
the party giving such notice or demand to take further action without notice or demand.
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9.3 Expenses. Each party shall bear its own costs and expenses in connection with
this Agreement, the Ancillary Agreements and the transactions contemplated hereby and thereby,
including all legal, accounting, financial advisory, consulting and all other fees and expenses of
third parties, whether or not the transactions contemplated by this Agreement are consummated.
9.4 Successors and Assigns. This Agreement may not be assigned by either party hereto
without the prior written consent of the other party; provided that, without such
consent, Buyer may transfer or assign this Agreement, in whole or in part or from time to time, to
one or more of its Affiliates or upon a Change of Control, but no such transfer or assignment will
relieve Buyer of its obligations hereunder. Subject to the foregoing, all of the terms and
provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective executors, heirs, personal representatives, successors and assigns. Any
successor-in-interest to the Buyer, shall specifically agree to be bound by the obligations of
Buyer pursuant to this Agreement.
9.5 Governing Law. This Agreement and Schedules hereto shall be governed by and
interpreted and enforced in accordance with the Laws of the State of Washington, without giving
effect to any choice of Law or conflict of Laws rules or provisions (whether of the State of
Washington or any other jurisdiction) that would cause the application of the Laws of any
jurisdiction other than the State of Washington.
9.6 Consent to Jurisdiction. Each party irrevocably submits to the jurisdiction of
(a) the courts of Common Pleas of the Commonwealth of Pennsylvania, (b) the Superior Court of King
County of the State of Washington, (c) the United States District Court for the Western District of
Washington, and (d) the United States District Court for the Eastern District of Pennsylvania, for
the purposes of any Action arising out of this Agreement or any transaction contemplated hereby.
Each party agrees to commence any such Action either in the Court of Common Pleas of Commonwealth
of Pennsylvania or the Superior Court of King County of the State of Washington, or if such Action
may not be brought in such court for jurisdictional reasons, in the United States District Court
for the Eastern District of Pennsylvania or the United States District Court for the Western
District of Washington. Each party further agrees that service of any process, summons, notice or
document by United States registered mail to such party’s respective address set forth above shall
be effective service of process for any Action in the applicable court with respect to any matters
to which it has submitted to jurisdiction in this Section 9.6. Each party irrevocably and
unconditionally waives any objection to the laying of venue of any Action arising out of this
Agreement or the transactions contemplated hereby in the applicable court, and hereby further
irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any
such Action brought in any such court has been brought in an inconvenient forum. EACH PARTY HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION (WHETHER BASED ON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE ANCILLARY AGREEMENTS OR THE ACTIONS
OF SUCH PARTY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF AND THEREOF.
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9.7 Counterparts. This Agreement may be executed in any number of counterparts, and
any party hereto may execute any such counterpart, each of which when executed and delivered shall
be deemed to be an original and all of which counterparts taken together shall constitute but one
and the same instrument. This Agreement shall become effective when each party hereto shall have
received a counterpart hereof signed by the other party hereto. The parties agree that the delivery
of this Agreement, and the delivery of the Ancillary Agreements and any other agreements and
documents at the Closing, may be effected by means of an exchange of facsimile signatures with
original copies to follow by mail or courier service.
9.8 Third Party Beneficiaries. No provision of this Agreement is intended to confer
upon any Person other than the parties hereto any rights or remedies hereunder; except that in the
case of ARTICLE VIII hereof, the other Indemnitees and their respective heirs, executors,
administrators, legal representatives, successors and assigns, are intended third party
beneficiaries of such sections and shall have the right to enforce such sections in their own
names.
9.9 Entire Agreement. This Agreement, the Ancillary Agreements, the Schedules and the
other documents, instruments and agreements specifically referred to herein or therein or delivered
pursuant hereto or thereto set forth the entire understanding of the parties hereto with respect to
the transactions contemplated by this Agreement. All Schedules referred to herein are intended to
be and hereby are specifically made a part of this Agreement. Any and all previous agreements and
understandings between or among the parties regarding the subject matter hereof, whether written or
oral, are superseded by this Agreement[, except for the Confidentiality Agreement which shall
continue in full force and effect in accordance with its terms].
9.10 Captions. All captions contained in this Agreement are for convenience of
reference only, do not form a part of this Agreement and shall not affect in any way the meaning or
interpretation of this Agreement.
9.11 Severability. Subject to Section 6.12(d), any provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such
invalidity or unenforceability without invalidating or rendering unenforceable the remaining
provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
9.12 Specific Performance. Buyer and Seller each agree that irreparable damage would
occur in the event that any of the provisions of this Agreement were not performed by them in
accordance with the terms hereof and that each party shall be entitled to specific performance of
the terms hereof, in addition to any other remedy at Law or equity.
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9.13 Interpretation.
(a) The meaning assigned to each term defined herein shall be equally applicable to both the
singular and the plural forms of such term and vice versa, and words denoting either gender shall
include both genders as the context requires. Where a word or phrase is defined herein, each of its
other grammatical forms shall have a corresponding meaning.
(b) The terms “hereof”, “herein” and “herewith” and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(c) When a reference is made in this Agreement to an Article, Section, paragraph, Exhibit or
Schedule, such reference is to an Article, Section, paragraph, Exhibit or Schedule to this
Agreement unless otherwise specified.
(d) The word “include”, “includes”, and “including” when used in this Agreement shall be
deemed to be followed by the words “without limitation”, unless otherwise specified.
(e) A reference to any party to this Agreement or any other agreement or document shall
include such party’s predecessors, successors and permitted assigns.
(f) Reference to any Law means such Law as amended, modified, codified, replaced or reenacted,
and all rules and regulations promulgated thereunder.
(g) The parties have participated jointly in the negotiation and drafting of this Agreement
and the Ancillary Agreements. Any rule of construction or interpretation otherwise requiring this
Agreement or the Ancillary Agreements to be construed or interpreted against any party by virtue of
the authorship of this Agreement or the Ancillary Agreements shall not apply to the construction
and interpretation hereof and thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the date first above written.
BioClinica, Inc. |
||||
By: | /s/ Xxxx X. Xxxxxxxxx | |||
Name: | Xxxx X. Xxxxxxxxx | |||
Title: | President & CEO | |||
TranSenda International, LLC |
||||
By: | /s/ Xxxx Xxx | |||
Name: | Xxxx Xxx | |||
Title: | Manager | |||