EXHIBIT 10.2
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STOCK PURCHASE AGREEMENT
Dated August 31, 1998
By and Among
GLOBAL IMAGING SYSTEMS, INC.
("Global"),
SOUTHERN BUSINESS COMMUNICATIONS, INC.
("Buyer"),
CENTRE BUSINESS PRODUCTS, INC.
(the "Company")
and
THE SHAREHOLDERS OF THE COMPANY
(Collectively, the "Sellers ")
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................ 1
1.1 Definitions........................................................... 1
ARTICLE II AGREEMENT OF PURCHASE AND SALE; CLOSING........................... 5
2.1 Agreement To Sell And Purchase........................................ 5
2.2 Purchase Price........................................................ 5
2.3 Payment Of Purchase Price............................................. 6
2.4 Closing............................................................... 7
(a) Date And Place................................................... 7
2.5 Escrow Arrangements................................................... 7
2.6 Purchase Price Adjustments............................................ 7
(a) Funded Indebtedness.............................................. 7
(b) Working Capital.................................................. 7
(c) Cash On Hand..................................................... 8
2.7 Closing Audit......................................................... 8
2.8 Post-closing Purchase Price Adjustment................................ 8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLERS.. 9
3.1 Capitalization........................................................ 9
3.2 No Liens On Shares.................................................... 9
3.3 Other Rights To Acquire Capital Stock................................. 9
3.4 Due Organization...................................................... 9
3.5 Subsidiaries.......................................................... 10
3.6 Due Authorization..................................................... 10
3.7 Financial Statements.................................................. 10
3.8 Certain Actions....................................................... 11
3.9 Properties............................................................ 12
3.10 Licenses And Permits................................................. 13
3.11 Intellectual Property................................................ 13
3.12 Compliance With Laws................................................. 13
3.13 Insurance............................................................ 14
3.14 Employee Benefit Plans............................................... 14
(a) Employee Welfare Benefit Plans................................... 14
(b) Employee Pension Benefit Plans................................... 14
(c) Employment And Non-tax Qualified Deferred Compensation
Arrangements.................................................... 15
3.15 Contracts And Agreements............................................. 15
3.16 Claims And Proceedings............................................... 15
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3.17 Taxes.............................................................. 16
3.18 Personnel.......................................................... 17
3.19 Business Relations................................................. 17
3.20 Accounts Receivable................................................ 17
3.21 Bank Accounts...................................................... 18
3.22 Warranties......................................................... 18
3.23 Brokers............................................................ 18
3.24 Interest In Competitors, Suppliers, Customers, Etc................. 18
3.25 Indebtedness To and From Officers, Directors, Shareholders, and
Employees.......................................................... 18
3.26 Undisclosed Liabilities............................................ 18
3.27 Information Furnished.............................................. 19
ARTICLE IV GLOBAL'S REPRESENTATIONS AND WARRANTIES......................... 19
4.1 Due Organization.................................................... 19
4.2 Due Authorization................................................... 19
4.3 No Brokers.......................................................... 20
4.4 Investment.......................................................... 20
4.5 Information Furnished............................................... 20
ARTICLE V PRE-CLOSING COVENANTS............................................ 20
5.1 Consents Of Others.................................................. 20
5.2 Best Efforts........................................................ 20
5.3 Powers Of Attorney.................................................. 20
5.4 Conduct Of Business Pending Closing................................. 21
5.5 Access To Records Before Closing.................................... 21
ARTICLE VI POST-CLOSING.................................................... 22
6.1 General............................................................. 22
6.2 Transition.......................................................... 22
6.3 Confidentiality..................................................... 22
6.4 Covenant Not To Compete............................................. 22
6.5 Additional Matters.................................................. 23
ARTICLE VII CONDITIONS TO OBLIGATION OF PARTIES TO CONSUMMATE CLOSING...... 24
7.1 Conditions To Global's Obligations.................................. 24
(a) Covenants, Representations and Warranties...................... 24
(b) Consents....................................................... 24
(c) Suppliers/leases............................................... 24
(d) Discharge Of Indebtedness and Lien............................. 24
(e) Material Adverse Change........................................ 25
(f) Transfer Taxes................................................. 25
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(g) Documents to be Delivered by the Sellers and the Company........ 25
(I) Opinion of the Sellers' Counsel............................ 25
(Ii) Certificates.............................................. 25
(Iii) Release.................................................. 25
(Iv) Escrow Agreement.......................................... 25
(V) Employment Agreement....................................... 25
(Vi) Building Leases........................................... 25
(Vii) Equity Subscription Agreement............................ 26
(Viii) Stock Certificates...................................... 26
7.2 Conditions to the Sellers' and the Company's Obligations............. 26
(a) Covenants, Representations and Warrantie........................ 26
(b) Consents........................................................ 26
(c) Documents to be Delivered by Global............................. 26
(I) Certificates............................................... 27
(Ii) Escrow Agreement.......................................... 27
(Iii) Employment Agreement..................................... 27
(Iv) Equity Subscription Agreement............................. 27
(d) Payments to the Sellers and the Company and the Escrow Agent.... 27
ARTICLE VIII INDEMNIFICATION................................................ 27
8.1 Indemnification of Global............................................ 27
8.2 Defense of Claims.................................................... 28
8.3 Escrow Claim......................................................... 28
8.4 Tax Audits, Etc...................................................... 28
8.5 Indemnification of the Sellers....................................... 29
8.6 Limits on Indemnification............................................ 29
ARTICLE IX MISCELLANEOUS.................................................... 29
9.1 Modifications........................................................ 29
9.2 Notices.............................................................. 30
9.3 Counterparts; Facsimile Transmission................................. 31
9.4 Expenses............................................................. 31
9.5 Binding Effect; Assignment........................................... 32
9.6 Entire and Sole Agreement............................................ 32
9.7 Governing Law........................................................ 32
9.8 Survival of Representations, Warranties and Covenants................ 32
9.9 Invalid Provisions................................................... 32
9.10 Public Announcements................................................ 33
9.11 Remedies Cumulative................................................. 33
9.12 Waiver.............................................................. 33
9.13 DISPUTE RESOLUTION.................................................. 33
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LIST OF EXHIBITS
Exhibit A Form of Escrow Agreement
Exhibit B Form of Estoppel Certificate for Building Leases
Exhibit C Opinion of the Company's and the Sellers' Counsel
Exhibit D Sellers' Certificates
Exhibit E Form of Release
Exhibit F Executive Agreement
Exhibit G Global and Buyer Certificates
Exhibit H Equity Subscription Agreement
LIST OF SCHEDULES
Schedule 2.3 Sellers' Accounts
Schedule 2.6 Holders of Funded Indebtedness
Schedule 3.1 Ownership of Shares
Schedule 3.4 Articles and Bylaws
Schedule 3.5 Subsidiaries
Schedule 3.8A Certain Actions
Schedule 3.8B Material Changes
Schedule 3.9 Properties
Schedule 3.10 Licenses and Permits
Schedule 3.11 Patents and Trademarks
Schedule 3.13 Insurance
Schedule 3.14 Employee Benefit Plans
Schedule 3.15 Contracts and Agreements
Schedule 3.16 Claims and Proceedings
Schedule 3.18 Personnel
Schedule 3.20 Accounts Receivable
Schedule 3.21 Bank Accounts
Schedule 3.25 Indebtedness with Officers, Directors and Shareholders
Schedule 3.26 Undisclosed Liabilities
Schedule 7.1(d) List of Indebtedness
Annex I Determination of Adjusted EBIT
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "AGREEMENT") is entered into as of
August 31, 1998, by and among GLOBAL IMAGING SYSTEMS, INC., a Delaware
corporation ("GLOBAL"), SOUTHERN BUSINESS COMMUNICATIONS, INC., a Georgia
corporation ("BUYER"), CENTRE BUSINESS PRODUCTS, INC., a Pennsylvania
corporation (the "COMPANY") and C. Xxxxxx XxXxxxx and Xxxxx XxXxxxx
(collectively, the "SELLERS ").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the distribution, sale and service
of electronic presentation and audio visual equipment in the Commonwealth of
Pennsylvania (the "BUSINESS"); and
WHEREAS, the Sellers own all of the issued and outstanding shares of
capital stock of the Company (the "SHARES"); and
WHEREAS, Buyer desires to purchase from the Sellers and the Sellers
desire to sell to Buyer all of the Shares on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual premises and covenants
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto covenant and agree
as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS . In this Agreement, the following terms have the meanings
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specified or referred to in this Section 1.1 and shall be equally applicable to
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both the singular and plural forms. Any agreement referred to below shall mean
such agreement as amended, supplemented and modified from time to time to the
extent permitted by the applicable provisions thereof and by this Agreement.
"ADJUSTED EBIT" means earnings before interest and taxes of the
Company (prepared on an accrual basis of accounting in accordance with GAAP,
consistently applied), plus mutually agreed upon "ADJUSTMENTS" and "ADDBACKS"
computed in accordance with Annex I hereto.
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"AFFILIATE" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"BUILDINGS" means collectively the offices of the Companies located in
Mount Union, PA, Mechanicsburg, PA and Monroeville, PA.
"BUSINESS" has the meaning specified in the first recital of the
Agreement
"BUSINESS DAY" means any day in which the NASDAQ National Market
System is open for trading in the United States of America.
"BUYER" has the meaning specified in the first paragraph of this
Agreement.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. (S)(S) 9601 et seq., any amendments thereto, any
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successor statutes, and any regulations promulgated thereunder.
"CLOSING" means the closing of the transfer of the Shares from the
Sellers to Buyer.
"CLOSING BALANCE SHEET" has the meaning specified in Section 2.7.
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"CLOSING DATE" has the meaning specified in Section 2.4.
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"CODE" means the Internal Revenue Code of 1986, as amended.
"COMPANY" has the meaning specified in the first paragraph of this
Agreement.
"CONFIDENTIAL INFORMATION" means all (a) confidential information and
trade secrets of the Company including, without limitation, any of the same
comprising the identity, lists or descriptions of any customers, referral
sources or organizations; (b) financial statements, cost reports or other
financial information; (c) contract proposals, or bidding information; (d)
business plans and training and operations methods and manuals; (e) personnel
records; (f) information concerning fee structures; and (g) management systems,
policies or procedures, including related forms and manuals. Confidential
Information shall not include any information (i) which is disclosed pursuant to
subpoena or other legal process, (ii) which has been publicly disclosed, (iii)
which subsequently becomes known to a third party not subject to a
confidentiality agreement with Global or the Company, or (iv) which is
subsequently disclosed by any third party not in breach of a confidentiality
agreement.
"CONTRACTS" has the meaning specified in Section 3.15.
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"COURT ORDER" means any judgment, order, award or decree of any
foreign, federal, state, local or other court or tribunal and any award in any
arbitration proceeding.
"EARN-OUT PAYMENT" has the meaning specified in Section 2.3(d).
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"EFFECTIVE DATE" has the meaning specified in Section 2.4.
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"EMPLOYMENT AGREEMENT" means the executive agreement C. Xxxxxx XxXxxxx
to be entered into at Closing in the form of Exhibit F.
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"ENCUMBRANCE" means any lien, claim, charge, security interest,
mortgage, pledge, easement, conditional sale or other title retention agreement,
defect in title, restrictive covenant or other restrictions of any kind.
"ENVIRONMENTAL OBLIGATIONS" has the meaning specified in Section 3.12.
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"EQUITABLE EXCEPTIONS" has the meaning specified in Section 3.6.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ESCROW AGENT" means Xxxxxx Bank.
"ESCROW AGREEMENT" means the Escrow Agreement to be executed by and
among the Sellers, Buyer and the Escrow Agent in substantially the same form as
Exhibit A.
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"ESCROW PERIOD" has the meaning specified in Section 2.5.
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"ESCROW SUM" has the meaning specified in Section 2.5.
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"FINANCIAL STATEMENTS" has the meaning specified in Section 3.7.
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"FUNDED INDEBTEDNESS" means all (i) indebtedness of the Company for
borrowed money or other interest-bearing indebtedness; (ii) capital lease
obligations of the Company which are accrued or required to be accrued under
GAAP; (iii) obligations of the Company to pay the deferred purchase or
acquisition price for goods or services, other than trade accounts payable or
accrued expenses in the ordinary course of business on no more than 90 day
payment terms; (iv) indebtedness of others guaranteed by the Company or secured
by an Encumbrance on any of the Company's assets; (v) indebtedness of the
Company under extended credit terms of more than 30 days from manufacturers
provided to the Company; or (vi) any receivables owed by the Company to the
Sellers.
"GAAP" shall mean generally accepted accounting principles,
consistently applied.
"GLOBAL" has the meaning specified in the first paragraph of this
Agreement.
"GLOBAL STOCK" means the common stock, par value $.01 per share of
Global.
"GOVERNMENTAL BODY" means any foreign, federal, state, local or other
governmental authority or regulatory body.
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"GOVERNMENTAL PERMITS" has the meaning specified in Section 3.10.
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"HSR ACT" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"IRS" means the Internal Revenue Service.
"INDEPENDENT ACCOUNTANTS" has the meaning specified in Section 2.7.
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"INDEMNIFIABLE COSTS" has the meaning specified in Section 8.1.
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"INDEMNIFIED PARTIES" has the meaning specified in Section 8.1.
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"INTELLECTUAL PROPERTY" has the meaning specified in Section 3.11.
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"MATERIAL ADVERSE CHANGE" or "MATERIAL ADVERSE EFFECT" means a
material adverse change or effect on the assets, properties, Business,
operations, liabilities, or financial condition of the Company and its
subsidiaries, taken as a whole. In determining whether a "Material Adverse
Change" or "Material Adverse Effect" has occurred, the quantitative amounts set
forth at the end of Article III shall be conclusive.
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"OSHA" means the Occupational Safety and Health Act, 29 U.S.C. (S)(S)
651 et seq., any amendment thereto, and any regulations promulgated thereunder.
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"PERMITTED EXCEPTION" means (a) liens for Taxes and other governmental
charges and assessments which are not yet due and payable, (b) liens of
landlords and liens of carriers, warehousemen, mechanics and materialmen and
other like liens arising in the ordinary course of business for sums not yet due
and payable, (c) other liens or imperfections on property which are not material
in amount or do not materially detract from the value or the existing use of the
property affected by such lien or imperfection, and (d) such statements of fact
and exceptions shown on any title insurance policies delivered to Global or
Buyer.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or Governmental Body.
"PRELIMINARY CLOSING BALANCE SHEET" shall mean the Company's best
estimate of the Company's balance sheet as of the Effective Date. The
Preliminary Closing Balance Sheet shall be delivered to Buyer not less than
three (3) nor more than five (5) days prior to the Closing Date.
"PURCHASE PRICE" has the meaning specified in Section 2.2.
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"RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C.
(S)(S) 6901 et seq., and any successor statute, and any regulations promulgated
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thereunder.
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"REQUIREMENTS OF LAWS" means any foreign, federal, state and local
laws, statutes, regulations, rules, codes or ordinances enacted, adopted, issued
or promulgated by any Governmental Body (including, without limitation, those
pertaining to electrical, building, zoning, environmental and occupational
safety and health requirements) or common law.
"SELLERS" has the meaning set forth in the first paragraph of this
Agreement.
"SHARES" means all of the issued and outstanding shares of the capital
stock of the Company.
"SUBSIDIARY" has the meaning set forth in Section 3.5 of this
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Agreement.
"SUBSIDIARY SHARES" has the meaning set forth in Section 3.5 of this
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Agreement.
"TAX" or "TAXES" means any federal, state, local or foreign income,
alternative or add-on minimum, gross income, gross receipts, windfall profits,
severance, property, production, sales, use, transfer, gains, license, excise,
employment, payroll, withholding or minimum tax, transfer, goods and services,
or any other tax, custom, duty, governmental fee or other like assessment or
charge of any kind whatsoever, together with any interest or any penalty,
addition to tax or additional amount imposed thereon by any Governmental Body.
"TAX RETURN" means any return, report or similar statement required to
be filed with respect to any Taxes (including any attached schedules),
including, without limitation, any information return, claim for refund, amended
return and declaration of estimated Tax.
"WORKING CAPITAL" shall mean the difference between the Company's
current assets and current liabilities as calculated in accordance with GAAP.
"WORKING CAPITAL TARGET" shall have the meaning assigned to such term
in Section 2.6 hereof.
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ARTICLE II
AGREEMENT OF PURCHASE AND SALE; CLOSING
2.1 AGREEMENT TO SELL AND PURCHASE. Upon the basis of the representations
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and warranties, for the consideration, and subject to the terms and conditions
set forth in this Agreement, the Sellers agree to sell the Shares to Buyer and
Buyer agrees to purchase the Shares from the Sellers.
2.2 PURCHASE PRICE. The total potential purchase price for the Shares
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(the "PURCHASE PRICE") shall be equal to $3,600,000, subject to any adjustment
required to be made pursuant to Section 2.6 or Section 2.8 below.
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2.3 PAYMENT OF PURCHASE PRICE. The Purchase Price shall be payable (i) by
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Buyer (with respect to the portion of the Purchase Price set forth in Section
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2.3(a), Section 2.3(b) and Section 2.3(d) below) and (ii) by Global (with
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respect to the portion of the Purchase Price set forth in Section 2.3(c) below)
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at the Closing (as defined in Section 2.4 below) or as otherwise set forth in
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Section 2.3(c) below as follows:
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(A) $2,400,000 of the Purchase Price as adjusted as set forth in
Section 2.6 below will be paid, at the direction of the Sellers, in cash by
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wire transfer of funds as specified in Schedule 2.3 (including the payment
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of $75,000 for the covenant not to compete provided in Section 6.4);
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(B) $300,000 of the Purchase Price as adjusted as set forth in
Section 2.6(d) below will be paid in cash by wire transfer of funds to the
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Escrow Agent to be held in escrow for satisfaction of the Sellers'
indemnification obligations specified in Section 8.1 or payment to the
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Sellers in accordance with the terms of Section 2.5 below.
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(C) $300,000 of the Purchase Price shall be paid in the form of
shares of Global Stock to be issued to the Sellers at the Closing. The
number of shares of Global Stock to be issued to the Sellers shall be
determined based on the average of the closing bid prices per share of the
Global Stock on the NASDAQ National Market System for the ten Business Days
prior to the two (2) Business Days prior to the Closing Date. The Global
Stock shall be allocated among the Sellers as specified in Schedule 2.3.
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(D) regardless of obligations in Exhibit F, an amount, if any, equal
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to: (i) 3.5 multiplied by (ii) the amount by which the Adjusted EBIT of the
Company for the fiscal years ending July 31, 1999, 2000 and 2001 in the
aggregate exceeds $3,931,200 (the "EARN-OUT PAYMENT"); provided, however,
the Earn-out Payment shall never exceed $600,000. The Earn-out Payment, if
earned, shall be paid in cash on or before October 31, 2001; provided,
however, that (i) in the event the Adjusted EBIT of the Company for the
fiscal year ending July 31, 1999 exceeds $1,108,571, the Sellers shall be
entitled to receive on or before October 31, 1999 a portion of the Earn-out
Payment equal to $100,000; (ii) in the event the Adjusted EBIT of the
Company for the fiscal years ending July 31, 1999 and 2000 in the aggregate
exceeds $2,433,143, the Sellers shall be entitled to receive on or before
October 31, 2000 an additional portion of the Earn-out Payment equal to
$100,000; and (iii) in the event the Adjusted EBIT of the Company for the
fiscal years ending July 31, 1999, 2000 and 2001 in the aggregate exceeds
$3,931,200, the Sellers shall be entitled to receive on or before October
31, 2001 the Earn-out Payment, minus any portion of the Earn-out Payment
previously paid to Sellers in accordance with this Section 2.3(d).
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Notwithstanding the foregoing, the Parties hereto agree that the Earnout
Payment, if any, shall not be paid in accordance with this Section 2.3(d)
in the event that C. Xxxxxx XxXxxxx'x employment with the Company is
terminated for any reason at any time prior to July 31, 2001;
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provided, however, that the Earnout Payment, if any, shall be paid in
accordance with this Section 2.3(d) in the event that C. Xxxxxx XxXxxxx'x
employment by the Company is terminated prior to July 31, 2001 due to his
death.
2.4 CLOSING.
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(A) DATE AND PLACE. The Closing of the purchase and sale of the
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Shares contemplated by this Agreement shall take place at 10:00 a.m., Eastern
Time, at the offices of Xxxxxx, Xxxxxxxx & Xxxxx in Harrisburg, PA on August 31,
1998, or at such other date and time as the parties shall agree (the "CLOSING
DATE"), effective as of August 1, 1998 (the "EFFECTIVE DATE").
(B) [RESERVED]
2.5 ESCROW ARRANGEMENTS. Pursuant to the Escrow Agreement to be entered
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into among the Sellers, Buyer and the Escrow Agent, $300,000 of the Purchase
Price shall be delivered to the Escrow Agent at Closing. Such monies (which,
together with all interest accrued thereon, is hereinafter referred to as the
"ESCROW SUM") shall be held pursuant to the terms of the Escrow Agreement for
payment from such Escrow Sum of the amounts, if any, owing by the Sellers to
Buyer pursuant to Section 2.8 or Article VIII below. At the conclusion of the
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period ending on the first anniversary of the Closing Date (such period being
referred to herein as the "ESCROW PERIOD"), such remaining portion of the Escrow
Sum not theretofore claimed by or paid to Buyer in accordance with the terms of
the Escrow Agreement and this Agreement shall be disbursed to the Sellers . The
Sellers and Buyer agree that each will execute and deliver such reasonable
instruments and documents as are furnished by any other party to enable such
furnishing party to receive those portions of the Escrow Sum to which the
furnishing party is entitled under the provisions of the Escrow Agreement and
this Agreement.
2.6 PURCHASE PRICE ADJUSTMENTS.
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(A) FUNDED INDEBTEDNESS. The Purchase Price payable pursuant to
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Section 2.3(a) above will be reduced by the total amount of Funded Indebtedness
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as of the Closing, if any, assumed or paid by Buyer in cash by wire transfer of
funds to the accounts of the holders of Funded Indebtedness listed on Schedule
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2.6 hereto to satisfy the Company's Funded Indebtedness with such holders.
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(B) WORKING CAPITAL. The portion of the Purchase Price payable at
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Closing will be reduced, on a dollar-for-dollar basis, by the amount, if any, by
which the Working Capital as reflected on the Preliminary Closing Balance Sheet
is more than $25,000 less than the average of the Working Capital balances at
the end of each of the six months ended June 30, 1998 (the "WORKING CAPITAL
TARGET").
(C) CASH ON HAND. The portion of the Purchase Price payable at
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Closing will be reduced by the amount, if any, by which the cash on hand of the
Company (included in the Working Capital) at Closing is less than $30,000.
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2.7 CLOSING REVIEW. Within 120 days following the Closing Date, there
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shall be delivered to the Sellers a balance sheet of the Company (the "CLOSING
BALANCE SHEET") of the Company at and as of the Effective Date. The Closing
Balance Sheet shall be prepared in accordance with GAAP by the Buyer. In the
event that the Sellers dispute any items on the Closing Balance Sheet within ten
(10) days after the Sellers' receipt thereof, the parties shall jointly select
and retain an independent "Big Five" accounting firm (the "INDEPENDENT
ACCOUNTANTS") to review the disputed item(s) on the Closing Balance Sheet. The
final determination of such disputed item(s) by the Independent Accountants
shall be binding on the parties and shall be reflected on the Closing Balance
Sheet. The cost of retaining the Independent Accountants shall be borne by the
Sellers; provided, however, that Buyer shall reimburse the Sellers for the cost
of the Independent Accountants in the event that such review results in an
increase of more than $25,000 in the Company's Working Capital as reflected on
the Closing Balance Sheet.
2.8 POST-CLOSING PURCHASE PRICE ADJUSTMENT. In the event that the
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Working Capital as reflected on the Closing Balance Sheet is less than the
Working Capital Target, then the Purchase Price will be adjusted downward, on a
dollar-for-dollar basis, to reflect the lesser of (i) the decrease, if any, in
Working Capital as reflected on the Closing Balance Sheet from the amount of
Working Capital reflected on the Preliminary Closing Balance Sheet or (ii) the
amount, if any, by which the Working Capital reflected on the Closing Balance
Sheet is less than the Working Capital Target. Conversely, the Purchase Price
will be adjusted upward, on a dollar-for dollar basis, to reflect the increase,
if any, in the total Working Capital as reflected on the Closing Balance Sheet
from the amount of Working Capital reflected on the Preliminary Closing Balance
Sheet; provided, however, that in no event shall such upward adjustment exceed
the total amount of any downward adjustment to the Purchase Price made pursuant
to Section 2.6(b) above. The post-closing adjustment to the Purchase Price, if
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any, shall be paid by the Sellers to Buyer from the Escrow Sum or by Buyer to
the Sellers, as the case may be, in immediately available funds within ten (10)
Business days of delivery of the Closing Balance Sheet, unless the Sellers
dispute any items on the Closing Balance Sheet, in which case it shall be paid
within ten (10) Business days after the Independent Accountants finally
determine the disputed item(s), and Buyer delivers to the Sellers a Closing
Balance Sheet modified to reflect such determination.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE SELLERS
The Company and the Sellers jointly and severally represent and
warrant to Global and Buyer that:
3.1 CAPITALIZATION. The authorized capital stock of the Company
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consists of 100 shares of Common Stock, 95 of which are issued and outstanding.
All of the Shares are duly authorized, validly issued, fully paid, and
nonassessable. All of the Shares are owned of record and beneficially by the
Sellers in the amounts set forth on Schedule 3.1 hereto. None of the Shares was
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issued or will be transferred under this Agreement in violation of any
preemptive or
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preferential rights of any Person. The Sellers own all of the issued and
outstanding capital stock of the Company.
3.2 NO LIENS ON SHARES. Except as shown on Schedule 3.2, the Sellers
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own the Shares, free and clear of any Encumbrances other than the rights and
obligations arising under this Agreement, and none of the Shares is subject to
any outstanding option, warrant, call, or similar right of any other Person to
acquire the same, and none of the Shares is subject to any restriction on
transfer thereof except for restrictions imposed by applicable federal and state
securities laws. At Closing, the Sellers will have full power and authority to
convey good and marketable title to the Shares, free and clear of any
Encumbrances.
3.3 OTHER RIGHTS TO ACQUIRE CAPITAL STOCK. Except as set forth in
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this Agreement, there are no authorized or outstanding warrants, options, or
rights of any kind to acquire from the Company any equity or debt securities of
the Company, or securities convertible into or exchangeable for equity or debt
securities of the Company, and there are no shares of capital stock of the
Company reserved for issuance for any purpose nor any contracts, commitments,
understandings or arrangements which require the Company to issue, sell or
deliver any additional shares of its capital stock.
3.4 DUE ORGANIZATION. The Company is a corporation duly organized,
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validly existing, and in good standing under the laws of the Commonwealth of
Pennsylvania and has full corporate power and authority to carry on the Business
as now conducted and as proposed to be conducted through Closing. Complete and
correct copies of the Articles of Incorporation and Bylaws of the Company, and
all amendments thereto, have been heretofore delivered to Buyer and are attached
hereto as Schedule 3.4. The Company is qualified to do business in the
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Commonwealth of Pennsylvania and in each jurisdiction in which the nature of the
Business or the ownership of its properties requires such qualification except
where the failure to be so qualified does not and could not reasonably be
expected to have a Material Adverse Effect.
3.5 SUBSIDIARIES. The Company is the owner of all of the outstanding
shares of the capital stock of each subsidiary (individually, a "SUBSIDIARY" and
collectively, the "SUBSIDIARIES") of the Company listed on Schedule 3.5 (such
------------
shares shall be collectively referred to as the "SUBSIDIARY SHARES"), free and
clear of all Encumbrances, and none of the Subsidiary Shares is subject to any
outstanding option, warrant, call, or similar right of any other Person to
acquire the same, and none of the Subsidiary Shares is subject to any
restriction on transfer thereof except for restrictions imposed by applicable
federal and state securities laws. There are no authorized or outstanding
warrants, options, or rights of any kind to acquire from the Company, or any
Subsidiary of the Company, any equity or debt securities of any Subsidiary of
the Company, or securities convertible into or exchangeable for equity or debt
securities of any Subsidiary of the Company, and there are no Subsidiary Shares
reserved for issuance for any purpose nor any contracts, commitments,
understandings or arrangements which require the Company or any Subsidiary of
the Company to issue, sell or deliver any additional Subsidiary Shares. Except
for the Subsidiaries of the Company listed on Schedule 3.5, neither the Company,
------------
nor its Subsidiaries, directly or indirectly have any subsidiaries or any direct
or
-9-
indirect ownership interests in any Person. The Sellers do not own any other
Person engaged in the Business.
3.6 DUE AUTHORIZATION. The Company and the Sellers each have full
-----------------
power and authority to execute, deliver and perform this Agreement and to carry
out the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement and the transactions contemplated hereby have been
duly and validly authorized by all necessary corporate action of the Company.
This Agreement has been duly and validly executed and delivered by the Company
and the Sellers and constitutes the valid and binding obligations of the Company
and the Sellers, enforceable in accordance with its terms, except to the extent
that enforceability may be limited by laws affecting creditors' rights and
debtors' obligations generally, and legal limitations relating to remedies of
specific performance and injunctive and other forms of equitable relief (the
"EQUITABLE EXCEPTIONS"). Except for the Equitable Exceptions and assuming all
necessary consents to the consummation of the transactions contemplated hereby,
as specifically set forth on Schedules 3.9 and 3.15, are obtained, the
------------- ----
execution, delivery, and performance of this Agreement (as well as all other
instruments, agreements, certificates, or other documents contemplated hereby)
by the Company and the Sellers, do not (a) violate any Requirements of Laws or
any Court Order of any Governmental Body applicable to the Company or the
Sellers, or their respective property, (b) violate or conflict with, or permit
the cancellation of, or constitute a default under, any material agreement to
which the Company or the Sellers are a party, or by which any of them or any of
their respective property is bound, (c) permit the acceleration of the maturity
of any Material indebtedness of, or Material indebtedness secured by the
property of, the Company or the Sellers, or (d) violate or conflict with any
provision of the charter or bylaws of the Company.
3.7 FINANCIAL STATEMENTS. The following Financial Statements (herein
--------------------
so called) of the Company have been delivered to Buyer by the Company:
unaudited, reviewed balance sheets of the Company as of June 30, 1996, June 30,
1997 and June 30, 1998, and an unaudited balance sheet as of July 31, 1998, and
unaudited, reviewed statements of income of the Company for the fiscal years
ending June 30, 1996, June 30, 1997 and June 30, 1998, and an unaudited
statement of income for the one month period ending July 31, 1998. The Financial
Statements have been prepared in accordance with GAAP throughout the periods
indicated and fairly present the financial position, results of operations and
changes in financial position of the Company as of the indicated dates and for
the indicated periods, subject (in the case of the one month Financial
Statements) to year end accruals made in the ordinary course of the Business
which are not materially adverse and which are consistent with past practices
and subject to the adjustment to Working Capital set forth in the definition of
Working Capital above. Except to the extent reflected or provided for in the
Financial Statements or the notes thereto and obligations and liabilities
incurred in the ordinary course of business since the date of the last of such
Financial Statements, the Company has no liabilities required by GAAP to be
reflected on the Company's balance sheet or notes thereto that are not so
reflected, nor any other obligations (whether absolute, contingent, or
otherwise) which are (individually or in the aggregate) Material (in amount or
to the conduct of the Business); and neither the Company nor the Sellers have
knowledge of any basis for the assertion of any such liability or obligation.
Since June 30, 1997, there has been no Material Adverse Change in the prospects
of the Company.
-10-
3.8 CERTAIN ACTIONS. Since June 30, 1998, the Company has not, except
---------------
as disclosed on Schedule 3.8A hereto or any of the Financial Statements or notes
-------------
thereto: (a) discharged or satisfied any Encumbrance or paid any obligation or
liability, absolute or contingent, other than current liabilities incurred and
paid in the ordinary course of the Business; (b) paid or declared any dividends
or distributions, or purchased, redeemed, acquired, or retired any stock or
indebtedness from any stockholder (other than distributions to pay estimated
income taxes of the Sellers associated with the income of the Company); (c) made
or agreed to make any loans or advances or guaranteed or agreed to guarantee any
loans or advances to any party whatsoever; (d) suffered or permitted any
Encumbrance other than Permitted Exceptions to arise or be granted or created
against or upon any of its assets, real or personal, tangible or intangible; (e)
canceled, waived, or released or agreed to cancel, waive, or release any of its
receivables, rights, or claims against third parties in excess of $15,000
individually or $35,000 in the aggregate; (f) sold, assigned, pledged,
mortgaged, or otherwise transferred, or suffered any material damage,
destruction, or loss (whether or not covered by insurance) to, any assets
(except in the ordinary course of the Business); (g) amended its charter or
bylaws; (h) paid or made a commitment to pay any severance or termination
payment to any employee or consultant; (i) made any material change in its
method of management or operation or method of accounting; (j) made any capital
expenditures, including, without limitation, replacements of equipment in the
ordinary course of the Business, or entered into commitments therefor, except
for capital expenditures or commitments therefor which do not, in the aggregate,
exceed $40,000; (k) made any investment or commitment therefor in any Person;
(l) made any payment or contracted for the payment of any bonus or other
compensation or personal expenses, other than (i) wages and salaries and
business expenses paid in the ordinary course of the Business, and (ii) wage and
salary adjustments made in the ordinary course of the Business for employees who
are not officers, directors, or shareholders of the Company; (m) made, amended,
or entered into any written employment contract or created or made any material
change in any bonus, stock option, pension, retirement, profit sharing or other
employee benefit plan or arrangement; (n) materially amended or experienced a
termination of any material contract, agreement, lease, franchise or license to
which the Company is a party that would or could reasonably be expected to have
a Material Adverse Effect, except in the ordinary course of the Business; or (o)
entered into any other material transactions that would or could reasonably be
expected to have a Material Adverse Effect except in the ordinary course of the
Business. Since June 30, 1998, except as disclosed on Schedule 3.8B hereto or
-------------
any of the Financial Statements or notes thereto, there has not been (a) any
Material Adverse Change including, but not limited to, the loss of any material
customers or suppliers of the Company, or in any material assets of the Company,
(b) any extraordinary contracts, commitments, orders or rebates, (c) any strike,
material slowdown, or demand for recognition by a labor organization by or with
respect to any of the employees of the Company, or (d) any shutdown, material
slow-down, or cessation of any material operations conducted by, or constituting
part of, the Company, nor has the Company agreed to do any of the foregoing.
3.9 PROPERTIES. Attached hereto as Schedule 3.9 is a list containing a
---------- ------------
description of each interest in real property (including, without limitation,
leasehold interests) and each item of personal property utilized by the Company
in the conduct of the Business having a book value in excess of $15,000 as of
the date hereof. Except for Permitted Exceptions
-11-
or as expressly set forth on Schedule 3.9, such real and personal properties are
------------
free and clear of Encumbrances. The Sellers and the Company have delivered to
Buyer a lien search obtained from the counties where the Company conducts
business and the Pennsylvania Secretary of State office of all UCC liens of
record against the Company's personal property in the Commonwealth of
Pennsylvania. All of the properties and assets necessary for continued operation
of the Business as currently conducted (including, without limitation, all
books, records, computers and computer software and data processing systems) are
owned, leased or licensed by the Company and are reasonably suitable for the
purposes for which they are currently being used. With the exception of used
equipment and inventory valued at no more than $10,000 in the aggregate on the
Company's Financial Statements, the physical properties of the Company,
including the real properties leased by the Company, to the best knowledge of
the Company and the Sellers, are in good operating condition and repair, normal
wear and tear excepted, and are free from any defects of a material nature.
Except for Permitted Exceptions or as otherwise set forth on Schedule 3.9, the
------------
Company has full and unrestricted legal and equitable title to all such
properties and assets. The operation of the properties and Business of the
Company in the manner in which they are now and have been operated does not
violate any zoning ordinances, municipal regulations, or other Requirements of
Laws, except for any such violations which would not, individually or in the
aggregate, have a Material Adverse Effect. Except for Permitted Exceptions or as
set forth on Schedule 3.9, no restrictive covenants, easements, rights-of-way,
------------
or regulations of record impair the uses of the properties of the Company for
the purposes for which they are now operated. All leases of real or personal
property by the Company are legal, valid, binding, enforceable and in full force
and effect and, assuming all necessary consents to the consummation of the
transactions contemplated herein, as set forth on Schedule 3.9, are obtained,
will remain legal, valid, binding, enforceable and in full force and effect on
essentially the same terms immediately following the Closing, except to the
extent that enforceability may be limited by the Equitable Exceptions. All
facilities owned or leased by the Company have received all material approvals
of any Governmental Body (including Governmental Permits) required in connection
with the operation thereof and have been operated and maintained in accordance
with all Requirements of Laws.
3.10 LICENSES AND PERMITS. Attached hereto as Schedule 3.10 is a list
-------------------- -------------
of all Material licenses, certificates, privileges, immunities, approvals,
franchises, authorizations and permits held or applied for by the Company from
any Governmental Body (herein collectively called "GOVERNMENTAL PERMITS") the
absence of which could individually or the in the aggregate have a Material
Adverse Effect. The Company has complied in all material respects with the terms
and conditions of all such Governmental Permits, and the Company has not
received notification from any Governmental Body of violation of any such
Governmental Permit or the Requirements of Laws governing the issuance or
continued validity thereof other than violations (if any) which would not
individually or in the aggregate have a Material Adverse Effect. No additional
Governmental Permit is required from any Governmental Body thereof in connection
with the conduct of the Business which Governmental Permit, if not obtained,
would have a Material Adverse Effect.
3.11 INTELLECTUAL PROPERTY. Attached hereto as Schedule 3.11 is a list
--------------------- -------------
and brief description of all patents, trademarks, tradenames, copyrights,
licenses, computer software or
-12-
data (other than general commercial software) or applications therefor owned by
or registered in the name of the Company or in which the Company has any rights,
licenses, or immunities (collectively, the "INTELLECTUAL PROPERTY"). The Company
has furnished Buyer with copies of all license agreements to which the Company
is a party, either as licensor or licensee, with respect to any Intellectual
Property. Except as described on Schedule 3.11 hereto, the Company has good
-------------
title to or the right to use such Intellectual Property and all inventions,
processes, designs, formulae, trade secrets and know-how necessary for the
conduct of their Business, as presently conducted without the payment of any
royalty or similar payment, and the Company is not infringing on any patent
right, tradename, copyright or trademark right or other Intellectual Property
right of others, and neither the Company nor the Sellers are aware of any
infringement by others of any such rights owned by the Company.
3.12 COMPLIANCE WITH LAWS. The Company has (i) complied in all
--------------------
material respects with all Requirements of Laws, Governmental Permits and Court
Orders applicable to the Business and has filed with the proper Governmental
Bodies all statements and reports required by all Requirements of Laws,
Governmental Permits and Court Orders to which the Company or any of its
employees (because of their activities on behalf of the Company) are subject and
(ii) conducted the Business and is in compliance in all material respects with
all federal, state and local energy, public utility, health, safety and
environmental Requirements of Laws, Governmental Permits and Court Orders
including the Clean Air Act, the Clean Water Act, RCRA, the Safe Drinking Water
Act, CERCLA, OSHA, the Toxic Substances Control Act and any similar state, local
or foreign laws (collectively "ENVIRONMENTAL OBLIGATIONS") and all other
federal, state, local or foreign governmental and regulatory requirements,
except where any such failure to comply or file would not, in the aggregate,
have a Material Adverse Effect. No claim has been made by any Governmental Body
(and, to the best knowledge of the Company and the Sellers, no such claim is
anticipated) to the effect that the Business fails to comply, in any respect,
with any Requirements of Laws, Governmental Permit or Environmental Obligation
or that a Governmental Permit or Court Order is necessary in respect thereto.
3.13 INSURANCE. Attached hereto as Schedule 3.13 is a list of all
--------- -------------
coverages for fire, liability, or other forms of insurance and all fidelity
bonds held by or applicable to the Company. Copies of the binder for all such
insurance policies have been delivered to Buyer. To the best of the Company's
and the Sellers' knowledge and belief, no event relating to the Company has
occurred which will result in (i) cancellation of any such insurance coverages;
(ii) a retroactive upward adjustment of premiums under any such insurance
coverages; or (iii) any prospective upward adjustment in such premiums. All of
such insurance coverages will remain in full force and effect following the
Closing.
3.14 EMPLOYEE BENEFIT PLANS.
----------------------
(A) EMPLOYEE WELFARE BENEFIT PLANS . Except as disclosed on
------------------------------
Schedule 3.14, the Company does not maintain or contribute to any "employee
-------------
welfare benefit plan" as such term is defined in Section 3(1) of ERISA. With
respect to each such plan: (i) the plan is in material compliance with ERISA;
(ii) the plan has been administered in accordance with its governing documents;
(iii) neither the plan, nor any fiduciary with respect to the plan,
-13-
has engaged in any "prohibited transaction" as defined in Section 406 of ERISA
other than any transaction subject to a statutory or administrative exemption;
(iv) except for the processing of routine claims in the ordinary course of
administration, there is no material litigation, arbitration or disputed claim
outstanding; and (v) all premiums due on any insurance contract through which
the plan is funded have been paid.
(B) EMPLOYEE PENSION BENEFIT PLANS. Except as disclosed in Schedule
------------------------------ --------
3.14, the Company does not maintain or contribute to any arrangement that is or
----
may be an "employee pension benefit plan" relating to employees, as such term is
defined in Section 3(2) of ERISA. With respect to each such plan: (i) the plan
is qualified under Section 401(a) of the Code, and any trust through which the
plan is funded meets the requirements to be exempt from federal income tax under
Section 501(a) of the Code; (ii) the plan is in material compliance with ERISA;
(iii) the plan has been administered in accordance with its governing documents
as modified by applicable law; (iv) the plan has not suffered an "accumulated
funding deficiency" as defined in Section 412(a) of the Code; (v) the plan has
not engaged in, nor has any fiduciary with respect to the plan engaged in, any
"prohibited transaction" as defined in Section 406 of ERISA or Section 4975 of
the Code other than a transaction subject to statutory or administrative
exemption; (vi) the plan has not been subject to a "reportable event" (as
defined in Section 4043(b) of ERISA), the reporting of which has not been waived
by regulation of the Pension Benefit Guaranty Corporation; (vii) no termination
or partial termination of the plan has occurred within the meaning of Section
411(d)(3) of the Code; (viii) all contributions required to be made to the plan
or under any applicable collective bargaining agreement have been made to or on
behalf of the plan; (ix) there is no material litigation, arbitration or
disputed claim outstanding; and (x) all applicable premiums due to the Pension
Benefit Guaranty Corporation for plan termination insurance have been paid in
full on a timely basis.
(C) EMPLOYMENT AND NON-TAX QUALIFIED DEFERRED COMPENSATION
------------------------------------------------------
ARRANGEMENTS. Except as disclosed in Schedule 3.14, the Company does not
------------
maintain or contribute to any retirement or deferred or incentive compensation
or stock purchase, stock grant or stock option arrangement entered into between
the Company and any current or former officer, consultant, director or employee
of the Company that is not intended to be a tax qualified arrangement under
Section 401(a) of the Code.
3.15 CONTRACTS AND AGREEMENTS. Attached hereto as Schedule 3.15 is a
------------------------ -------------
list and brief description of all written or oral contracts, commitments,
leases, and other agreements (including, without limitation, promissory notes,
loan agreements, and other evidences of indebtedness, guarantees, agreements
with distributors, suppliers, dealers, franchisors and customers, and service
agreements) to which the Company is a party or by which the Company or its
properties are bound pursuant to which the obligations thereunder of either
party thereto are, or are contemplated as being, for any one contract $35,000 or
greater (collectively, the "CONTRACTS"). The Company is not and, to the best
knowledge of the Sellers and the Company, no other party thereto is in default
(and no event has occurred which, with the passage of time or the giving of
notice, or both, would constitute a default by the Company) under any of the
Contracts, and the Company has not waived any right under any of the Contracts,
except for any such defaults or waivers, which would not have a Material Adverse
Effect. Except for the
-14-
Equitable Exceptions, all of the Contracts are legal, valid, binding,
enforceable and in full force and effect and, assuming all necessary consents to
the consummation of the transactions contemplated herein, as specifically set
forth on Schedules 3.9 and 3.15, are obtained, will remain legal, valid,
------------- ----
binding, enforceable and in full force and effect on essentially the same terms
immediately after the Closing, except to the extent that enforceability may be
limited by the Equitable Exceptions. Except as set forth in Schedule 3.15, the
Company has not guaranteed any obligations of any other Person. To the best
knowledge of the Company and the Sellers, no manufacturer of office equipment
sold by the Company will cease doing business with the Company immediately
following the Closing.
3.16 CLAIMS AND PROCEEDINGS. Attached hereto as Schedule 3.16 is a
---------------------- -------------
list and brief description of all claims, actions, suits, proceedings, or
investigations pending or, to the best knowledge and belief of the Sellers or
the Company, threatened against or affecting the Company or any of its
properties or assets, at law or in equity, or before or by any court,
municipality or other Governmental Body. Except as set forth on Schedule 3.16,
-------------
none of such claims, actions, suits, proceedings, or investigations, if
adversely determined, will result in any Material liability or loss to the
Company. The Company has not been and the Company is not now, subject to any
Court Order, stipulation, or consent of or with any court or Governmental Body.
No inquiry, action or proceeding has been instituted or, to the best knowledge
and belief of the Sellers or the Company, threatened or asserted against the
Sellers or the Company to restrain or prohibit the carrying out of the
transactions contemplated by this Agreement or to challenge the validity of such
transactions or any part thereof or seeking damages on account thereof. Except
as set forth on Schedule 3.16, there is no basis for any such valid claim or
-------------
action.
3.17 TAXES.
-----
(A) All Federal, foreign, state, county and local income, gross
receipts, excise, property, franchise, license, sales, use, withholding and
other Taxes due from the Company on or before the Closing will have been paid
and all Tax Returns which are required to be filed by the Company on or before
the Closing will have been filed within the time and in the manner provided by
law, and all such Tax Returns are true and correct and accurately reflect the
Tax liabilities of the Company. No Tax Returns of the Company are presently
subject to an extension of the time to file. All Taxes, assessments, penalties,
and interest of the Company which have become due pursuant to such Tax Returns
or any assessments received have been paid or adequately accrued on the
Company's Financial Statements. The provisions for Taxes reflected on the
balance sheets contained in the Financial Statements are adequate to cover all
of the Company's Tax liabilities for the respective periods then ended and all
prior periods. The Company has not executed any presently effective waiver or
extension of any statute of limitations against assessments and collection of
Taxes, and there are no pending or, to the best knowledge of the Sellers or the
Company, threatened claims, assessments, notices, proposals to assess,
deficiencies, or audits with respect to any such Taxes. For Governmental Bodies
with respect to which the Company does not file Tax Returns, no such
Governmental Body has given the Company written notification that the Company is
or may be subject to taxation by that Governmental Body. The Company has
withheld and paid all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee, shareholder,
-15-
creditor, independent contractor or other party. There are no Tax liens on
any of the property or assets of the Company.
(B) Neither the Company nor any other corporation has filed an
election under Section 341(f) of the Code that is applicable to the Company or
any assets held by the Company. The Company has not made any payments, is not
obligated to make any payments, and is not a party to any agreement that under
certain circumstances could obligate it to make any payments that will not be
deductible under Code Sec. 280G. The Company has not been a United States real
property holding corporation within the meaning of Code Sec. 897(c)(2) during
the applicable period specified in Code Sec. 897(c)(1)(A)(ii). The Company is
not a party to any Tax allocation or sharing agreement. The Company has not and
has never been (nor does the Company have any liability for unpaid Taxes because
it once was) a member of an affiliated group during any part of which return
year any corporation other than the Company also was a member of the affiliated
group.
(C) No transaction contemplated by this Agreement is subject to
withholding under Section 1445 of the Code and no stock transfer taxes, real
estate transfer taxes or similar taxes will be imposed upon the transfer and
sale of the Shares pursuant to this Agreement.
3.18 PERSONNEL. Attached hereto as Schedule 3.18 is a list of the names
--------- -------------
and annual rates of compensation of the directors and executive officers of the
Company, and of the employees of the Company whose annual rates of compensation
during the fiscal year ended June 30, 1998 (including base salary, bonus and
incentive pay) exceed (or by June 30, 1999 are expected to exceed) $60,000.
Schedule 3.18 also summarizes the bonus, profit sharing, percentage
-------------
compensation, company automobile, club membership, and other like benefits, if
any, paid or payable to such directors, officers, and employees during the
Company's fiscal year ended June 30, 1998 and to the date hereof. Schedule 3.18
-------------
also contains a brief description of all material terms of employment agreements
to which the Company is a party and all severance benefits which any director,
officer or employee of the Company is or may be entitled to receive. The
employee relations of the Company are generally good and there is no pending or,
to the best knowledge of the Sellers or the Company, threatened labor dispute or
union organization campaign. None of the employees of the Company are
represented by any labor union or organization. The Company is in compliance in
all material respects with all Requirements of Laws respecting employment and
employment practices, terms and conditions of employment, and wages and hours,
and are not engaged in any unfair labor practices. Neither the Company or the
Sellers has been advised, or has good reason to believe, that any of the persons
whose names are set forth on Schedule 3.18 or any other employee will not agree
-------------
to remain employed by the Company after the consummation of the transactions
contemplated hereby. There is no unfair labor practice claim against the Company
before the National Labor Relations Board, or any strike, dispute, slowdown, or
stoppage pending or, to the best knowledge of the Company and the Sellers,
threatened against or involving the Company, and none has occurred.
3.19 BUSINESS RELATIONS. Neither the Company nor the Sellers know or has
------------------
good reason to believe that any customer or supplier of the Company will cease
to do business
-16-
with the Company after the consummation of the transactions contemplated hereby
in the same manner and at the same levels as previously conducted with the
Company except for any reductions which do not result in a Material Adverse
Change. Neither the Sellers nor the Company has received any notice of any
material disruption (including delayed deliveries or allocations by suppliers)
in the availability of any portion of the materials used by the Company nor is
the Company or the Sellers aware of any facts which could lead them to believe
that the Business will be subject to any such material disruption.
3.20 ACCOUNTS RECEIVABLE. All of the accounts, notes, and loans receivable
-------------------
that have been recorded on the books of the Company are bona fide and represent
amounts validly due for goods sold or services rendered and, except as disclosed
on Schedule 3.20, all such amounts (net of any allowance for doubtful accounts
--------------
which amount as of July 31, 1998 is $30,564) will be collected in full within
180 days following the Closing Date. Except as disclosed on Schedule 3.20
-------------
hereto (a) all of such accounts, notes, and loans receivable are free and clear
of any Encumbrances; (b) no claims of offset have been asserted in writing
against any of such accounts, notes, or loans receivable; and (c) none of the
obligors of such accounts, notes, or loans receivable has given written notice
that it will or may refuse to pay the full amount or any portion thereof.
3.21 BANK ACCOUNTS. Attached hereto as Schedule 3.21 is a list of all
------------- -------------
banks or other financial institutions with which the Company has an account or
maintains a safe deposit box, showing the type and account number of each such
account and safe deposit box and the names of the persons authorized as
signatories thereon or to act or deal in connection therewith.
3.22 WARRANTIES. Except for warranty claims that are typical and in the
----------
ordinary course of the Business, no written claim for breach of product or
service warranty to any customer has been made against the Company since January
1, 1997. To the best knowledge of the Sellers and the Company, no state of
facts exists, and no event has occurred, which could reasonably be expected to
form the basis of any present claim against the Company for liability on account
of any express or implied warranty to any third party in connection with
products sold or services rendered by the Company, except for warranty claims
which are typical and in the ordinary course of business, none of which
individually or in the aggregate would have a Material Adverse Effect.
3.23 BROKERS. Neither the Company nor the Sellers have engaged, or caused
-------
to be incurred any liability to any finder, broker, or sales agent in connection
with the origin, negotiation, execution, delivery, or performance of this
Agreement or the transactions contemplated hereby.
3.24 INTEREST IN COMPETITORS, SUPPLIERS, CUSTOMERS, ETC. No officer,
director, or shareholder of the Company or any affiliate of any such officer,
director, or shareholder, has any ownership interest in any competitor,
supplier, or customer of the Company (other than ownership of securities of a
publicly-held corporation of which such Person owns, or has real or contingent
rights to own, less than one percent of any class of outstanding securities) or
any property used in the operation of the Business.
-17-
3.25 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS, SHAREHOLDERS, AND
---------------------------------------------------------------
EMPLOYEES. Attached hereto as Schedule 3.25 is a list and brief description of
--------- -------------
the payment terms of all indebtedness of the Company to officers, directors,
shareholders, and employees of the Company and all indebtedness of officers,
directors, shareholders, and employees of the Company to the Company, excluding
indebtedness for travel advances or similar advances for expenses incurred on
behalf of and in the ordinary course of the Business, consistent with past
practices.
3.26 UNDISCLOSED LIABILITIES. Except as indicated in Schedule 3.26
----------------------- -------------
hereto, the Company does not have any liabilities (whether absolute, accrued,
contingent or otherwise), of a nature required by GAAP to be reflected on a
corporate balance sheet or disclosed in the notes thereto, except such
liabilities which are accrued or reserved against in the Financial Statements or
disclosed in the notes thereto, including without limitation any accounts
payable or service liabilities of the Company incurred prior to the Closing
Date, other than liabilities incurred in the ordinary course of the Business
since the date of the latest of such Financial Statements.
3.27 INFORMATION FURNISHED. The Company and the Sellers have made
---------------------
available to Buyer true and correct copies of all material corporate records of
the Company and all material agreements, documents, and other items listed on
the Schedules to this Agreement or referred to in this Agreement, and neither
this Agreement, the Schedules hereto, nor any written information, instrument,
or document delivered to Global or Buyer pursuant to this Agreement contains any
untrue statement of a material fact or omits any material fact necessary to make
the statements herein or therein, as the case may be, not misleading.
In making the representations and warranties set forth above, the term
"Material" or "material" shall, where appropriate in context of its use, be
deemed to mean an amount of money greater than $20,000. The terms "Material
Adverse Change," "material adverse trend," "Material Adverse Effect," or any
other term of like import shall mean the occurrence of any single event, or any
series of related events, or set of related circumstances, which proximately
causes an actual, direct economic loss to the Company, taken as a whole, in
excess of $20,000 per occurrence or $40,000 in the aggregate. The term
"knowledge" shall mean actual knowledge after reasonable inquiry of the officers
and employees of the Company with responsibility for the applicable subject
matter. All references to the "Company" in Sections 3.6 through 3.27 shall
------------ ----
include the Companies' Subsidiaries.
ARTICLE IV
GLOBAL'S AND BUYER'S REPRESENTATIONS AND WARRANTIES
Global and Buyer jointly and severally represent and warrant to the Sellers
as follows:
4.1 DUE ORGANIZATION. Global is a corporation duly organized, validly
----------------
existing, and in good standing under the laws of the State of Delaware and has
full corporate
-18-
power and authority to execute, deliver and perform this Agreement and to carry
out the transactions contemplated hereby. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Georgia
and has full corporate power and authority to execute, deliver and perform this
Agreement and to carry out the transactions contemplated hereby.
4.2 DUE AUTHORIZATION. The execution, delivery and performance of this
-----------------
Agreement has been duly authorized by all necessary corporate action of Global
and Buyer and the Agreement has been duly and validly executed and delivered by
Global and Buyer and constitutes the valid and binding obligation of each of
Global and Buyer, enforceable in accordance with its terms, except to the extent
that enforceability may be limited by the Equitable Exceptions. The execution,
delivery, and performance of this Agreement (as well as all other instruments,
agreements, certificates or other documents contemplated hereby) by Global and
Buyer, do not (a) violate any Requirements of Laws or Court Order of any
Governmental Body applicable to Global or Buyer or their property, (b) violate
or conflict with, or permit the cancellation of, or constitute a default under
any agreement to which Global or Buyer is a party or by which either of them or
their property is bound, (c) permit the acceleration of the maturity of any
indebtedness of, or any indebtedness secured by the property of, Global or
Buyer, or (d) violate or conflict with any provision of the charter or bylaws of
Global or Buyer.
4.3 NO BROKERS. Neither Global or Buyer have engaged, or caused to be
----------
incurred any liability to any finder, broker or sales agent in connection with
the origin, negotiation, execution, delivery, or performance of this Agreement
or the transactions contemplated hereby.
4.4 INVESTMENT. Buyer will acquire the Shares solely for investment
----------
purposes and for its own account and not with a view to the distribution
thereof.
4.5 INFORMATION FURNISHED. To the best knowledge of Global and Buyer,
---------------------
neither this Agreement, nor any written information, instrument, or document
delivered to the Sellers by Global or Buyer pursuant to this Agreement contains
any untrue statement of a material fact or omits any material fact necessary to
make the statements herein or therein, as the case may be, not misleading.
ARTICLE V
PRE-CLOSING COVENANTS
5.1 CONSENTS OF OTHERS. Prior to the Closing, the Company and the Sellers
------------------
shall use their best efforts to obtain and to cause the Company to obtain all
authorizations, consents and permits required of the Company and the Sellers to
permit them to consummate the transactions contemplated by this Agreement.
5.2 BEST EFFORTS. Global, Buyer, the Company and the Sellers shall use all
------------
reasonable efforts to cause all conditions for the Closing to be met.
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5.3 POWERS OF ATTORNEY. The Company and the Sellers shall cause the
------------------
Company to terminate at or prior to the Closing all powers of attorney granted
by the Company other than those relating to service of process, qualification or
pursuant to governmental regulatory or licensing agreements, or representation
before the IRS or other government agencies.
5.4 CONDUCT OF BUSINESS PENDING CLOSING. From the date of this Agreement
-----------------------------------
to the Closing Date:
(I) Except as otherwise contemplated by this Agreement, or as
Buyer may otherwise consent to in writing, the Company and the Sellers
shall conduct the Business only in the ordinary course and shall not engage
in any material activity or enter into any material transaction which would
cause a breach of any of the representations and warranties contained in
Article III.
-----------
(II) The Company shall, and the Sellers shall use their best
efforts to cause the Company to, preserve substantially intact its current
business organization and present relationships with its customers,
vendors, suppliers and employees and to maintain all of its insurance
currently in effect.
(III) The Sellers and the Company shall give prompt notice to
Buyer of any notice of material default received by the Company or the
Business subsequent to the date of this Agreement under any Contract or any
Material Adverse Change occurring prior to the Closing Date in the
operation of the Company or the Business.
(IV) Neither the Company nor the Sellers, nor any of their
representatives, shall solicit, encourage or discuss any Acquisition
Proposal (as hereinafter defined) or supply any non-public information
concerning the Company or the Business or the Company's assets to any party
other than Global, Buyer or their representatives. As used herein,
"ACQUISITION PROPOSAL" means any proposal other than the transactions
herein contemplated, for (i) any merger or other business combination
involving the Company or the Business, (ii) the acquisition of the Company
or a material equity interest in the Company or a material portion of its
assets, or (iii) the dissolution or liquidation of the Company.
5.5 ACCESS TO RECORDS BEFORE CLOSING. Prior to the Closing Date, the
---------------------------------
Sellers and the Company agree that they will give, or cause to be given, to
Buyer and their representatives, during normal business hours and at Buyer's
expense, full and unrestricted access to the Company's personnel, officers,
agents, employees, assets, properties, titles, contracts, corporate minute and
other books, records, files and documents of the Sellers with respect to the
Business (including financial, tax basis, budget projections, accountants' work
papers and other information as Buyer may request) and to the Business'
personnel, customers, suppliers and independent accountants, to allow Buyer to
obtain such information as Buyer shall desire, and to make copies of such
information, to the extent reasonably necessary. Additionally, the Sellers and
the Company will provide Buyer opportunities to meet with key employees of the
Business, to visit facilities of
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the Business and to otherwise conduct due diligence in respect of the Company
and the Business. All materials copied by Buyer shall be maintained in
confidence by Buyer and returned to the Sellers and/or the Company, as
appropriate, if the Closing of the transactions contemplated hereunder fails to
occur.
ARTICLE VI
POST-CLOSING COVENANTS
6.1 GENERAL. In case at any time after the Closing any further action
-------
is legally necessary or reasonably desirable (as determined by Buyer and the
Sellers) to carry out the purposes of this Agreement, each of the parties will
take such further action (including the execution and delivery of such further
instruments and documents) as any other party reasonably may request, all at the
sole cost and expense of the requesting party (unless the requesting party is
entitled to indemnification therefor under Article VIII below). The Sellers and
------------
Buyer acknowledge and agree that from and after the Closing, Buyer will be
entitled to possession of all documents, books, records, agreements, and
financial data of any sort relating to the Company, which shall be maintained at
the chief executive office of the Company; provided, however, that the Sellers
shall be entitled to reasonable access to and to make copies of such books and
records at their sole cost and expense, and Buyer will maintain all of the same
for a period of at least six (6) years after Closing. Thereafter, the Company
will offer such documentation to the Sellers before disposal thereof.
6.2 TRANSITION. For a period of three (3) years following Closing, the
---------
Sellers will not take any action that primarily is designed or intended to have
the effect of discouraging any lessor, licensor, customer, supplier, or other
business associate of the Company from maintaining the same business relations
with the Company after the Closing as it maintained with the Company prior to
the Closing. For a period of three (3) years following Closing, the Sellers
will refer all customer inquiries relating to the Business to the Company.
6.3 CONFIDENTIALITY. The Sellers will treat and hold as such all
---------------
Confidential Information, refrain from using any of the Confidential Information
except in connection with this Agreement or otherwise for the benefit of the
Company or Buyer for a period of three (3) years from the Closing, and deliver
promptly to Buyer or destroy, at the written request and option of Buyer, all
tangible embodiments (and all copies) of the Confidential Information which are
in their possession, except as otherwise permitted herein. In the event that any
Seller is requested or required (by oral question or written request for
information or documents in any legal proceeding, interrogatory, subpoena, civil
investigative demand, or similar legal proceeding) to disclose any Confidential
Information, such Seller will notify Buyer promptly of the request or
requirement.
6.4 COVENANT NOT TO COMPETE. For and in consideration of the allocation of
-----------------------
$75,000 of the Purchase Price paid to the Sellers by Buyer, each Seller
covenants and agrees, for a period of three (3) years from and after the Closing
Date, that he will not, directly or indirectly without the prior written consent
of Buyer, for or on behalf of any entity:
-21-
(A) become interested or engaged, directly or indirectly, as a
shareholder, bondholder, creditor, officer, director, partner, agent,
contractor with, employer or representative of, or in any manner associated
with, or give financial, technical or other assistance to, any Person, firm
or corporation for the purpose of engaging in the copier/office equipment
or electronic presentation equipment dealer, service or distribution
business in competition with the Company, within the greater of (i) a 100
mile radius of the Company's office facilities in the Commonwealth of
Pennsylvania (the "CURRENT TRADE AREA") or (ii) in any geographic area in
which the Company currently conducts business;
(B) enter into any agreement with, service, assist or solicit
the business of any customers of the Company for the purpose of providing
office and electronic presentation equipment sales or service to such
customers in competition with the Company in the Current Trade Area or to
cause them to reduce or end their business with the Company; or
(C) enter into any agreement with, or solicit the employment of
employees, consultants or representatives of the Company for the purpose of
causing them to leave the employment of the Company;
provided, however, that no owner of less than one percent (1%) of the
outstanding stock of any publicly-traded corporation shall be deemed to be in a
violation of this Section 6.4 solely by reason thereof.
-----------
6.5 ADDITIONAL MATTERS.
------------------
(A) The Sellers shall cause the Company to file with the appropriate
governmental authorities all Tax Returns required to be filed by it for any
taxable period ending prior to the Closing Date and the Company shall remit any
Taxes due in respect of such Tax Returns. In addition, the Sellers shall cause
Xxxx X. Xxxxx, CPA to prepare a short period tax return for the Company covering
the period from June 30, 1998 through July 31, 1998. The cost of preparation of
such short period tax return shall be paid for by the Sellers.
(B) Buyer and the Sellers recognize that each of them will need
access, from time to time, after the Closing Date, to certain accounting and Tax
records and information held by Buyer and/or the Company to the extent such
records and information pertain to events occurring on or prior to the Closing
Date; therefore, Buyer agrees to cause the Company to (A) use its best efforts
to properly retain and maintain such records for a period of six (6) years from
the date the Tax Returns for the year in which the Closing occurs are filed or
until the expiration of the statute of limitations with respect to such year,
whichever is later, and (B) allow each Seller and his agents and representatives
at times and dates mutually acceptable to the parties, to reasonably inspect,
review and make copies of such records from time to time, such activities to be
conducted during normal business hours and at the inspecting party's expense.
-22-
ARTICLE VII
CONDITIONS TO OBLIGATION OF PARTIES TO CONSUMMATE CLOSING
7.1 CONDITIONS TO GLOBAL'S AND BUYER'S OBLIGATIONS. The obligation of
----------------------------------------------
Global and Buyer under this Agreement to consummate the Closing is subject to
the conditions that:
(A) COVENANTS, REPRESENTATIONS AND WARRANTIES. The Company and the
-----------------------------------------
Sellers shall have performed in all material respects all obligations and
agreements and complied in all material respects with all covenants contained in
this Agreement to be performed and complied with by each of them prior to or at
the Closing Date. The representations and warranties of the Company and the
Sellers set forth in this Agreement shall be accurate in all material respects
at and as of the Closing Date with the same force and effect as though made on
and as of the Closing Date, except for any changes resulting from activities or
transactions which may have taken place after the date hereof and which are
permitted or contemplated by this Agreement or which have been entered into in
the ordinary course of business and except to the extent that such
representations and warranties are expressly made as of another specified date
and, as to such representation, the same shall be true in all material respects
as of such specified date. In addition, Buyer shall have determined from its due
diligence review of the Company that no Material Adverse Change or Material
Adverse Effect shall have occurred in the financial condition, business,
operations or prospects of the Company from those presented to Buyer.
(B) CONSENTS. All statutory requirements for the valid consummation
--------
by the Company and the Sellers of the transactions contemplated by this
Agreement shall have been fulfilled and all authorizations, consents and
approvals, including expiration or early termination of all waiting periods
under the HSR Act and those of all federal, state, local and foreign
governmental agencies and regulatory authorities required to be obtained in
order to permit the consummation of the transactions contemplated hereby shall
have been obtained in form and substance reasonably satisfactory to Buyer,
unless such failure could not reasonably be expected to have a Material Adverse
Effect. All approvals of the Board of Directors and shareholders of the Company
necessary for the consummation of this Agreement and the transactions
contemplated hereby shall have been obtained.
(C) SUPPLIERS/LEASES. The Sellers shall have obtained, where
-----------------
necessary, the written consent of (i) the Company's Material office equipment
suppliers and (ii) the lessors of the Buildings to the transactions contemplated
by the Agreement. The lessors of the Buildings shall have provided an Estoppel
Certificate to Global's lenders in substantially the same form as Exhibit B
hereto, except as specifically waived by Global.
(D) DISCHARGE OF INDEBTEDNESS AND LIENS. The Sellers and the Company
-----------------------------------
shall have provided for the payment in full by the Company of all Funded
Indebtedness of the Company. Such Funded Indebtedness, if any, as of July 31,
1998, is listed on Schedule 7.1(d) hereto. The Sellers shall have also provided
for the termination of all Encumbrances of record on the properties of the
Company, except for Permitted Exceptions. All liens or UCC filings against the
Company and each of the Subsidiaries or Affiliates of the
-23-
Company which engaged in the Business other than Permitted Exceptions shall have
been terminated as of the Closing.
(E) MATERIAL ADVERSE CHANGE. There has been no Material Adverse
-----------------------
Change with respect to the Company since June 30, 1998.
(F) TRANSFER TAXES. The Sellers shall be responsible for all stock
--------------
transfer or gains taxes imposed on the Sellers incurred in connection with this
Agreement.
(G) DOCUMENTS TO BE DELIVERED BY THE SELLERS AND THE COMPANY. The
--------------------------------------------------------
following documents shall be delivered at the Closing by the Sellers and the
Company:
(I) OPINION OF THE SELLERS' COUNSEL. Global and Buyer shall
-------------------------------
have received an opinion of counsel to the Company and Sellers, dated the
Closing Date, in substantially the same form as the form of opinion that is
Exhibit C hereto.
(II) CERTIFICATES. Global and Buyer shall have received an
------------
officer's certificate and a secretary's certificate of the Company executed by
officers of the Company, dated the Closing Date, in substantially the same forms
as the forms of certificates that are Exhibit D-1 and D-2, respectively, hereto.
(III) RELEASE. The Sellers have furnished the Company with a
-------
general release in substantially the same form as the form attached as Exhibit E
---------
hereto.
(IV) ESCROW AGREEMENT. The Sellers shall have delivered to Buyer
----------------
a the Closing the duly executed Escrow Agreement required pursuant to Section
2.5 hereof.
(V) EMPLOYMENT AGREEMENT. C. Xxxxxx XxXxxxx shall have duly
--------------------
executed and delivered the Employment Agreement in substantially the same form
attached as Exhibit F hereto, pursuant to which he will be employed by the
Company following the Closing.
(VI) BUILDING LEASES. Buyer shall be reasonably satisfied with
---------------
the terms of the leases of the Buildings. The shall have delivered to Global an
Estoppel Certificate of the landlords of the Buildings to Global's lenders in
substantially the same form as the form attached as Exhibit B hereto, except as
specifically waived by Global.
(VII) EQUITY SUBSCRIPTION AGREEMENT. The Sellers shall have
-----------------------------
executed and delivered to Global an Equity Subscription Agreement in
substantially the same form as the form attached hereto as Exhibit H.
---------
-24-
(VIII) STOCK CERTIFICATES. The Sellers shall have delivered the
------------------
Shares accompanied by duly executed stock powers, together with any stock
transfer stamps or receipts for any transfer taxes required to be paid thereon.
7.2 CONDITIONS TO THE SELLERS' AND THE COMPANY'S OBLIGATIONS. The
--------------------------------------------------------
obligation of the Sellers and the Company under this Agreement to consummate the
Closing is subject to the conditions that:
(A) COVENANTS, REPRESENTATIONS AND WARRANTIES. Global and Buyer shall
-----------------------------------------
have performed in all material respects all obligations and agreements and
complied in all material respects with all covenants contained in this Agreement
to be performed and complied with by Global and Buyer prior to or at the Closing
and the representations and warranties of Global and Buyer set forth in Article
IV hereof shall be accurate in all material respects, at and as of the Closing
Date, with the same force and effect as though made on and as of the Closing
Date except for any changes resulting from activities or transactions which may
have taken place after the date hereof and which are permitted or contemplated
by the Agreement or which have been entered into in the ordinary course of the
Business and except to the extent that such representations and warranties are
expressly made as of another specified date and, as to such representations, the
same shall be true as of such specified date.
(B) CONSENTS. All statutory requirements for the valid consummation
--------
by Global and Buyer of the transactions contemplated by this Agreement shall
have been fulfilled and all authorizations, and approvals, including expiration
or early termination of all waiting periods under the HSR Act and those of all
federal, state, local and foreign governmental agencies and regulatory
authorities required to be obtained in order to permit the consummation by
Global and Buyer of the transactions contemplated hereby shall have been
obtained unless such failure shall not have a Material Adverse Effect on the
Business. Buyer shall have used its reasonable efforts to have obtained the
release of the Sellers from all personal guarantees with respect to the Company.
(C) DOCUMENTS TO BE DELIVERED BY GLOBAL AND BUYER. The following
---------------------------------------------
documents shall be delivered at the Closing by Global and Buyer:
(I) CERTIFICATES. The Sellers shall have received an officers'
------------
certificate and a secretary's certificate executed by officers of Global
and Buyer, dated the Closing Date, in substantially the same forms as the
forms of certificates that are Exhibit G-1 and G-2, respectively, hereto.
(II) ESCROW AGREEMENT. Buyer shall have delivered to the
----------------
Sellers at the Closing the duly executed Escrow Agreement required pursuant
to Section 2.5 hereof.
(III) EMPLOYMENT AGREEMENT. Buyer shall have caused the Company
--------------------
to duly execute and deliver the Employment Agreement with C. Xxxxxx XxXxxxx
in the same form attached as Exhibit F hereto, pursuant to which he will be
employed by the Company following the Closing.
-25-
(IV) EQUITY SUBSCRIPTION AGREEMENT. Global shall have executed
-----------------------------
and delivered to Sellers an Equity Subscription Agreement in substantially
the same form as the form attached hereto as Exhibit H.
---------
(D) PAYMENTS TO THE SELLERS AND THE COMPANY AND THE ESCROW AGENT.
------------------------------------------------------------
The Sellers shall have received the Purchase Price for the Shares. The Escrow
Agent shall have received the Escrow Sum from Buyer.
ARTICLE VIII
INDEMNIFICATION
8.1 INDEMNIFICATION OF GLOBAL AND BUYER. Except as provided in Section
----------------------------------- -------
8.6, as Global's and Buyer's sole and exclusive monetary remedy for any breach
---
by the Sellers hereunder, the Sellers agree to jointly and severally indemnify
and hold harmless Global, Buyer and each officer, director, and affiliate of
Global and Buyer, including without limitation the Company or any successor of
the Company (collectively, the "INDEMNIFIED PARTIES") from and against any and
all damages, losses, claims, liabilities, demands, charges, suits, penalties,
costs and expenses (including court costs and reasonable attorneys' fees and
expenses incurred in investigating and preparing for any litigation or
proceeding) (collectively, the "INDEMNIFIABLE COSTS"), which any of the
Indemnified Parties may sustain, or to which any of the Indemnified Parties may
be subjected, arising out of (A) any misrepresentation, breach or default by the
Sellers or the Company of or under any of the representations, covenants,
agreements or other provisions of this Agreement or any agreement or document
executed in connection herewith; (B) the assertion and final determination of
any claim or liability against the Company or any of the Indemnified Parties by
any Person based upon the facts which form the alleged basis for any litigation
to the extent it should have been, but was not, reserved for in the Financial
Statements in accordance with GAAP; and (C) the Company's tortious acts or
omissions to act prior to Closing for which the Company did not carry liability
insurance for themselves as the insured party, whether or not such acts or
omissions to act result in a breach or violation of any representation or
warranty.
8.2 DEFENSE OF CLAIMS. If any legal proceeding shall be instituted, or any
-----------------
claim or demand made, against any Indemnified Party in respect of which the
Sellers may be liable hereunder, such Indemnified Party shall give prompt
written notice thereof to the Sellers and, except as otherwise provided in
Section 8.4 below, the Sellers shall have the right to defend, or cause the
-----------
Company or its successors to defend, any litigation, action, suit, demand, or
claim for which it may seek indemnification unless, in the reasonable judgment
of Buyer, such litigation, action, suit, demand, or claim, or the resolution
thereof, would have an ongoing effect on Global or Buyer, the Company or its
successors, and such Indemnified Party shall extend reasonable cooperation in
connection with such defense, which shall be at the Sellers' expense. In the
event the Sellers fail or refuse to defend the same within a reasonable length
of time, the Indemnified Parties shall be entitled to assume the defense
thereof, and the Sellers shall be jointly and severally liable to repay the
Indemnified Parties for all expenses reasonably incurred in connection with said
defense (including reasonable attorneys' fees and settlement payments) if
-26-
it is determined that such request for indemnification was proper. If the
Sellers shall not have the right to assume the defense of any litigation,
action, suit, demand, or claim in accordance with either of the two preceding
sentences, the Indemnified Parties shall have the absolute right to control the
defense of and to settle, in Indemnified Parties' sole discretion such
litigation, action, suit, demand, or claim, but each Seller shall be entitled,
at his own expense, to participate in such litigation, action, suit, demand, or
claim.
8.3 ESCROW CLAIM. If any claim for indemnification is made by an
------------
Indemnified Party or a Seller pursuant to this Article VIII prior to the
------------
expiration of the Escrow Period, such Indemnified Party or Seller shall first
apply to the Escrow Agent for reimbursement of such claim in accordance with the
provisions of the Escrow Agreement prior to seeking reimbursement for such
claim. Upon expiration of the Escrow Period, Buyer may offset any claim for
indemnification made by Buyer or Global pursuant to this Article VIII against
------------
the Earn-Out Payment.
8.4 TAX AUDITS, ETC. In the event of an audit of any Tax Return of the
---------------
Company with respect to which an Indemnified Party might be entitled to
indemnification pursuant to this Article VIII, Global shall have the right to
------------
control any and all such audits which may result in the assessment of additional
Taxes against the Company and any and all subsequent proceedings in connection
therewith, including appeals. The Sellers shall cooperate fully in all matters
relating to any such audit or other Tax proceeding (including according access
to all records pertaining thereto), and will execute and file any and all
consents, powers of attorney, and other documents as shall be reasonably
necessary in connection therewith. If additional Taxes are payable by the
Company as a result of any such audit or other proceeding, the Sellers shall be
responsible for and shall promptly pay all Taxes, interest, and penalties to
which any of the Indemnified Parties shall be entitled to indemnification.
8.5 INDEMNIFICATION OF THE SELLERS. Global and Buyer agree to jointly and
------------------------------
severally indemnify and hold harmless the Sellers and the Company and each
officer, director, stockholder or affiliate of the Company, from and against any
Indemnifiable Costs arising out of any material misrepresentation, breach or
default by Global and Buyer of or under any of the covenants, agreements or
other provisions of this Agreement or any agreement or document executed in
connection herewith. In addition, the Company and Buyer shall indemnify the
Sellers for any payment or satisfaction of any guarantees by the Sellers of the
Company's obligations occurring after the Closing Date.
8.6 LIMITS ON INDEMNIFICATION. All Indemnifiable Costs sought by any party
-------------------------
hereunder shall be net of any insurance proceeds received by such Person with
respect to such claim (less the present value of any premium increases occurring
as a result of such claim). Except for any claims for breach of the
representations, warranties and covenants of the Sellers under Sections 3.1,3.2,
----------------
3.3, 3.1 4, 3.17 or 6.5 hereof (for which indemnification claims must be made
---------------- ---
prior to the expiration of the applicable statute of limitations and if so made,
such claims shall continue after such date until finally resolved), the right to
make claims for indemnification provided under this Article VIII shall expire on
------------
the third anniversary of the Closing Date (except for claims made prior to such
date which shall continue after such date until finally resolved).
-27-
The Sellers shall not be obligated to pay any amounts for indemnification under
this Article VIII until the aggregate indemnification obligation hereunder
------------
exceeds $25,000, whereupon the Sellers shall be liable for all amounts for which
indemnification may be sought. Notwithstanding the foregoing, in no event shall
the aggregate liability of the Sellers to Global and Buyer hereunder exceed the
Purchase Price. Global and Buyer shall not be obligated to pay any amounts for
indemnification under this Article VIII until the aggregate indemnification
obligation hereunder exceeds $25,000, whereupon Global and Buyer shall be liable
for all amounts for which indemnification may be sought. However nothing in this
Article VIII shall limit Global and Buyer or the Sellers in exercising or
------------
securing any remedies provided by applicable common law with respect to the
conduct of the Sellers or Global and Buyer in connection with this Agreement or
in the amount of damages that it can recover from the other in the event that
Global and Buyer or the Sellers successfully proves intentional fraud or
intentional fraudulent conduct in connection with this Agreement.
ARTICLE IX
MISCELLANEOUS
9.1 MODIFICATIONS. Any amendment, change or modification of this
-------------
Agreement shall be void unless in writing and signed by all parties hereto. No
failure or delay by any party hereto in exercising any right, power or privilege
hereunder (and no course of dealing between or among any of the parties) shall
operate as a waiver of any such right, power or privilege. No waiver of any
default on any one occasion shall constitute a waiver of any subsequent or other
default. No single or partial exercise of any such right, power or privilege
shall preclude the further or full exercise thereof.
9.2 NOTICES. All notices and other communications hereunder shall be in
-------
writing and shall be deemed to have been duly given when personally delivered,
or 48 hours after deposited in the United States mail, first-class, postage
prepaid, or by facsimile addressed to the respective parties hereto as follows:
Global or Buyer:
---------------
c/o Global Imaging Systems, Inc.
13902 North Xxxx Xxxxx Road, Suite 300
Box 273478
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx, President
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
-28-
With a copy to:
--------------
Xxxxx & Xxxxxxx L.L.P.
Xxxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
And with a copy to:
-------------------
Southern Business Communications, Inc.
0000 Xxxx Xxxxxx Xxxx Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
The Company:
------------
Centre Business Products, Inc.
X.X. XxXxxxx, Xxxx 0 Xxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: C. Xxxxxx XxXxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
And with a copy to:
-------------------
Xxxxxx, Xxxxxxxx and Xxxxx
0000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
Sellers:
-------
C. Xxxxxx XxXxxxx and Xxxxx XxXxxxx
C.A. XxXxxxx, Road 1 Box 112
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Fax No.: (717)________
Tel No.: (717)________
-29-
or to such other address as to any party hereto as such party shall designate by
like notice to the other parties hereto.
9.3 COUNTERPARTS; FACSIMILE TRANSMISSION. This Agreement may be executed
------------------------------------
in several counterparts, each of which shall be deemed an original but all of
which counterparts collectively shall constitute one instrument, and in making
proof of this Agreement, it shall never be necessary to produce or account for
more than one such counterpart. Signatures of a party to this Agreement or other
documents executed in connection herewith which are sent to the other parties by
facsimile transmission shall be binding as evidence of acceptance of the terms
hereof or thereof by such signatory party, with originals to be circulated to
the other parties in due course.
9.4 EXPENSES. Each of the parties hereto will bear all costs, charges and
--------
expenses incurred by such party in connection with this Agreement and the
consummation of the transactions contemplated herein; provided, however, that
the Sellers shall bear all costs and expenses of (i) any broker involved in this
transaction and (ii) all legal expenses of the Sellers and the Company with
respect to this Agreement and the transactions contemplated hereby.
9.5 BINDING EFFECT; ASSIGNMENT. This Agreement shall be binding upon and
--------------------------
inure to the benefit of the Company, Global, Buyer and the Sellers, their heirs,
representatives, successors, and permitted assigns, in accordance with the terms
hereof. This Agreement shall not be assignable by the Company or the Sellers
without the prior written consent of Global. This Agreement shall be assignable
by Global or Buyer to a wholly-owned subsidiary of Global or Buyer without the
prior written consent of the Sellers, but any such assignment shall not relieve
Global of its obligations hereunder. In addition, the indemnification rights of
Global and Buyer under Article VIII hereof may be assigned by Global and Buyer
------------
to First Union National Bank, N.A.
9.6 ENTIRE AND SOLE AGREEMENT. This Agreement and the other schedules and
-------------------------
agreements referred to herein, constitute the entire agreement between the
parties hereto and supersede all prior agreements, representations, warranties,
statements, promises, information, arrangements and understandings, whether oral
or written, express or implied, with respect to the subject matter hereof.
9.7 GOVERNING LAW. This Agreement and its validity, construction,
-------------
enforcement, and interpretation shall be governed by the substantive laws of the
Commonwealth of Pennsylvania (without reference to Pennsylvania's rules related
to choice of laws).
9.8 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. Regardless of
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any investigation at any time made by or on behalf of any party hereto or of any
information any party may have in respect thereof, all covenants, agreements,
representations, and warranties and the related indemnities made hereunder or
pursuant hereto or in connection with the transactions contemplated hereby shall
survive the Closing for a period of three (3) years, provided (a) the
representations and warranties contained in Sections 3.14 and 3.17 of this
------------- ----
Agreement, and the related indemnities, shall survive the Closing until the
expiration of the applicable statutes of limitations for determining or
contesting Tax liabilities, (b) the
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representations, warranties and covenants contained in Sections 3.1, 3.2, 3.3,
------------ --- ---
and 6.5 of this Agreement, and the related indemnities, shall survive the
---
Closing indefinitely and not expire.
9.9 INVALID PROVISIONS. If any provision of this Agreement is deemed or
------------------
held to be illegal, invalid or unenforceable, this Agreement shall be considered
divisible and inoperative as to such provision to the extent it is deemed to be
illegal, invalid or unenforceable, and in all other respects this Agreement
shall remain in full force and effect; provided, however, that if any provision
of this Agreement is deemed or held to be illegal, invalid or unenforceable
there shall be added hereto automatically a provision as similar as possible to
such illegal, invalid or unenforceable provision and be legal, valid and
enforceable. Further, should any provision contained in this Agreement ever be
reformed or rewritten by any judicial body of competent jurisdiction, such
provision as so reformed or rewritten shall be binding upon all parties hereto.
9.10 PUBLIC ANNOUNCEMENTS. Neither party shall make any public
--------------------
announcement of the transactions contemplated hereby without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
9.11 REMEDIES CUMULATIVE. The remedies of the parties under this
-------------------
Agreement are cumulative and shall not exclude any other remedies to which any
party may be lawfully entitled.
9.12 WAIVER. No failure or delay on the part of any party in exercising
------
any right, power, or privilege hereunder or under any of the documents delivered
in connection with this Agreement shall operate as a waiver of such right,
power, or privilege; nor shall any single or partial exercise of any such right,
power, or privilege preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege.
9.13 DISPUTE RESOLUTION. ALL DISPUTES BETWEEN THE SELLERS AND GLOBAL AND
------------------
BUYER WITH RESPECT TO ANY PROVISION OF THIS AGREEMENT OR THE RIGHTS AND
OBLIGATIONS OF THE SELLERS AND GLOBAL AND BUYER HEREUNDER (OTHER THAN DISPUTES
INVOLVING ALLEGATIONS OF INTENTIONAL FRAUD), WHICH CANNOT BE RESOLVED BY MUTUAL
AGREEMENT, WILL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE RULES
OF THE AMERICAN ARBITRATION ASSOCIATION IN HARRISBURG, PENNSYLVANIA, OR BY ANY
OTHER MEANS OF ALTERNATIVE DISPUTE RESOLUTION MUTUALLY AGREED UPON BY THE
PARTIES. EACH PARTY SHALL BE ENTITLED TO DISCOVERY PURSUANT TO THE FEDERAL RULES
OF CIVIL PROCEDURE AND FEDERAL RULES OF EVIDENCE.
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[THIS SPACE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date and year first above written.
GLOBAL:
------
GLOBAL IMAGING SYSTEMS, INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------
Xxxxxxx Xxxxxxxxx
Vice President, Chief Financial Officer, Treasurer
and Secretary
BUYER:
-----
SOUTHERN BUSINESS COMMUNICATIONS, INC.
By: /s/ Xxxx Xxxxx
--------------
Xxxx Xxxxx
President
THE COMPANY:
-----------
CENTRE BUSINESS PRODUCTS, INC.
By: /s/ C. Xxxxxx XxXxxxx
---------------------
C. Xxxxxx XxXxxxx
President
THE SELLERS:
-----------
/s/ C. Xxxxxx XxXxxxx
---------------------
C. Xxxxxx XxXxxxx
/s/ Xxxxx XxXxxxx
-----------------
Xxxxx XxXxxxx
The Exhibits and Schedules to this Stock Purchase Agreement are not included
with this Quarterly Report on Form 10-Q. Global will provide these exhibits and
schedules upon the request of the Securities and Exchange Commission
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