STOCK PURCHASE AGREEMENT
Agreement dated as of July 31, 1995 between ACCESS CORPORATION, an
Ohio corporation ("Buyer"), and WILLIAM MANNING (the "Seller").
The Seller owns all of the outstanding equity securities of
CimSoft, Inc., a Delaware corporation ("CimSoft"), consisting of 510,000
shares of Common Stock, $.01 par value (the "Shares") and Promissory Notes
of CimSoft in the aggregate principal amount of $172,500 (the "Notes").
The Buyer wishes to purchase, and the Seller wishes to sell, the Shares
and the Notes on the terms and conditions of this Agreement.
The parties agree as follows:
1. The Acquisition.
1.1 Purchase and Sale. Subject to the terms and conditions of
this Agreement, the Seller hereby sells the Shares and the
Notes to the Buyer, and the Buyer hereby purchases the Shares
from Seller, free and clear of all liens, charges and
encumbrances ("Encumbrances"). In furtherance thereof, the
Seller is herewith delivering to the Buyer certificates
representing the Shares and the Notes, duly endorsed for
transfer to the Buyer.
1.2 Purchase Price. The aggregate purchase price for the Shares
is $257,500, $177,500 of which is being paid simultaneously
herewith by the Buyer to the Seller by certified check or
wire transfer and $80,000 of which will be so paid on
September 30, 1995 by certified check or wire transfer. The
aggregate purchase price for the Notes is $172,500 which is
being paid simultaneously herewith by the Buyer to the Seller
by certified check or wire transfer.
1.3 Other Transactions. Simultaneously with the execution and
delivery of this Agreement:
(a) The Seller is delivering to the Buyer his resignation
as director and officer of CimSoft;
(b) Mr. Ben-Gal is entering into an employment and non-
competition agreement with CimSoft;
(c) The Buyer shall receive a confirmation from [Cimage
Enterprise Systems Limited] in form and substance
satisfactory to Buyer consenting to the transactions
contemplated by the Agreement.
2. Representations and Warranties of the Seller. In order to induce
the Buyer to enter into this Agreement and to purchase the Shares
and the Notes, the Seller represents to the Buyer that:
2.1 Authority of the Seller. This Agreement constitutes a valid
and binding obligation of the Seller, enforceable against him
in accordance with its terms. Neither the execution and
delivery of this Agreement nor the sale of the Shares and
the Notes to the Buyer will: (a) violate, be in conflict
with, or constitute a default under any agreement to which
Seller is a party or (b) violate any statute, law, regulation,
judgment, decree or order to which the Seller is subject.
2.2 Ownership of the Shares and the Notes. The authorized equity
securities of CimSoft consist of 1,000,000 shares of common
stock of which 510,000 shares are outstanding and constitute
the Shares. The Notes referred in Section 1.2 above
constitute the entire indebtedness of CimSoft to William
Manning. Seller owns the Shares and the Notes, of record and
beneficially, free and clear of all Encumbrances. No legend
or other reference to any purported Encumbrance appears
upon any certificate representing the Shares and the Notes
except a legend that the Shares have not been registered
under the Securities Act of 1933 and cannot be sold or
transferred unless or until registered or unless such
registration is not then required under the circumstances of
such sale or transfer. The delivery of certificates to the
Buyer provided in Section 1.1 and the payment to the Seller
provided in Section 1.2 will result in the Buyer's immediate
acquisition of record and beneficial ownership of the Shares
and the Notes, free and clear of all Encumbrances. There are
no outstanding options, rights, conversion rights, agreements
or commitments of any kind relating to the issuance, sale or
transfer of any equity securities or other securities of
CimSoft.
2.3 Organization of CimSoft. CimSoft is a corporation duly
organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, with full
corporate power and authority to own its properties and to
engage in its business as presently conducted, is duly
qualified and in good standing as a foreign corporation under
the laws of each other jurisdiction in which it is authorized
to do business and is not required to qualify as a foreign
corporation in any other jurisdiction except California where
application for qualifications is pending. CimSoft does not
own, or have any option, right, agreement or commitment of
any kind to acquire, any equity securities or other securities
of any other corporation or other entity or any direct or
indirect equity or ownership interest in any other business.
2.4 No Conflict as to CimSoft. Neither the execution and delivery
of this Agreement nor the consummation of the sale of the
Shares and the Notes to the Buyer will (a) violate any
provision of the certificate of incorporation or by-laws (or
other governing instrument) of CimSoft or (b) violate, or be
in conflict with, or constitute a default under, or result in
the termination of, or accelerate the performance required
by, or excuse performance by any person of any of its
obligations under, or cause the acceleration of the maturity
of any debt or obligation pursuant to, or result in the
creation or imposition of any Encumbrance upon any property
or assets of CimSoft under, any agreement or commitment to
which CimSoft is a party or by which any of its property or
assets is bound, or (c) violate any statute or law or any
judgment, decree, order, regulation or rule of any court or
other governmental body applicable to CimSoft.
2.5 Consents and Approvals of Governmental Authorities. No
consent, approval or authorization of, or declaration, filing
or registration with, any governmental body is required to be
made or obtained by the Seller or CimSoft in connection with
the execution, delivery and performance of this Agreement by
the Seller or the consummation of the sale of the Shares and
the Notes to the Buyer.
2.6 Other Consents. Except as contemplated by Section 1.3(c),
no consent of any person is required to be obtained by the
Seller or CimSoft to the execution, delivery and performance
of this Agreement or the consummation of the sale of the
Shares and the Notes to the Buyer, including, but not limited
to, consents from parties to leases or other agreements or
commitments.
2.7 Assets. All of the assets by CimSoft are owned free and clear
of all Encumbrances. All accounts receivable purchased by
CimSoft from Cimage Corporation are "as is" and Seller makes
no warranty or representation to Buyer other than as to
ownership by CimSoft of such accounts.
2.8 Litigation. To the best knowledge of the Seller, there is no
action, suit, inquiry, proceeding or investigation by or
before any court or governmental body pending or threatened
against or affecting CimSoft or which questions or challenges
the validity of this Agreement. CimSoft is not subject to
any judgment, order or decree.
2.9 No Material Adverse Change. Since June 29, 1995,
there has not been any material adverse change in the
business, assets or prospects of CimSoft and since
June 29, 1995, CimSoft has not made any payments or
distributions to any Shareholder, member of management or
related parties (other than its President's salary at the
monthly rate of $9,166.67 and the reimbursement of normal
business and travel expenses) and has not incurred any
liability or obligation to or on behalf of any such person,
other than those incurred directly and solely in CimSoft's
normal business operations.
2.10 Patents, Trademarks and Copyrights. Exhibit 2.10 hereto
contains a list of (a) all material patents and registered
trademarks and copyrights ("Proprietary Rights"), and
applications therefor, owned by CimSoft and (b) all material
license agreements relating to Proprietary Rights to which
CimSoft is a party. To the best knowledge of the seller, the
sale of the Shares and the Notes to the Buyer will not
adversely affect the use by CimSoft of any Proprietary Rights.
2.11 Contracts and Commitments. Other than as set forth on
Exhibit 2.11 CimSoft is not a party to any:
(a) Except for the above referenced Notes, contract or
agreement involving any liability on the part of CimSoft
of more than $10,000 and not cancelable by CimSoft
within 60 days;
(b) Lease of personal property involving annual rental
payments in excess of $10,000 and not cancelable by
CimSoft within 60 days;
(c) Employee bonus, stock option or stock purchase,
performance unit, profit-sharing, pension, savings,
retirement, health, deferred or incentive compensation,
insurance or other material employee benefit plan
(as defined in Section 2(3) of ERISA) or program for any
of the employees, former employees or retired employees
of CimSoft;
(d) Commitment, contract or agreement that is currently
expected by the management of CimSoft to result in any
material loss upon completion or performance thereof;
(e) Contract, agreement or commitment that is material to the
business of CimSoft with any officer, employee, agent,
consultant, advisor, salesman, sales representative,
value added reseller, distributor or dealer;
(f) Employment agreement or other similar agreement;
(g) Lease of real or personal property; or
(h) Other contract, agreement or commitment that is material
to the business of CimSoft.
All such contracts and agreements are in full force and effect.
CimSoft is not in breach of, in violation of, or in default under, any
agreement, instrument, indenture, deed of trust, commitment, contract or
other obligation of any type to which CimSoft is a party or is or may be
bound that relates to its business or to which any of its assets or
properties is subject.
2.12 Compliance with Law. The operations of CimSoft have been
conducted in accordance with all applicable laws and
regulations of all governmental bodies having jurisdiction
over them. Since June 29, CimSoft has not received any
notification of any asserted present or past failure by it
to comply with any such applicable laws or regulations.
CimSoft has or in the case of California has applied for all
material licenses, permits, orders or approvals from the
governmental bodies required for the conduct of its
businesses, and is not in violation of any such licenses,
permits, orders and approvals. All such licenses, permits,
orders and approvals that have been issued are in full force
and effect, and no suspension or cancellation of any thereof
has been threatened.
2.13 Brokers or Finders. Seller has not employed any broker or
finder or incurred any liability for any brokerage or finder's
fees or commissions or similar payments in connection with the
sale of the Shares and the Notes to the Buyer.
3. Representations and Warranties of the Buyer.
3.1 Organization of the Buyer; Authorization. The Buyer is a
corporation duly organized, validly existing and in good
standing under the laws of Ohio, with full corporate power and
authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery
and performance of this Agreement have been duly authorized by
all necessary corporate action of the Buyer and this Agreement
constitutes a valid and binding obligation of the Buyer,
enforceable against it in accordance with its terms.
3.2 Conflict to the Buyer. Neither the execution and delivery of
this Agreement nor the performance of the Buyer's obligations
hereunder will (a) violate any provision of the Articles of
Incorporation or Code of Regulations of the Buyer, (b) violate,
be in conflict with, or constitute a default (or an event
which, with notice of lapse of time or both, would constitute
a default) under any agreement or commitment to which the
Buyer is a party, or (c) violate any statute or law or any
judgment, decree, order, regulation or rule of any court or
other governmental body applicable to the Buyer.
3.3 Brokers or Finders. The Buyer has not employed any broker
or finder or incurred any liability for any brokerage or
finder's fees or commissions or similar payments in
connection with any of the transactions contemplated hereby.
3.4 Consents and Approvals or Governmental Authorities. No
consent, approval or authorization of, or declaration, filing
or registration with, any governmental body is required to be
made or obtained by the Buyer in connection with the
execution, delivery and performance of this Agreement by the
Buyer or the consummation of the purchase of the Shares and
the Notes by the Buyer.
3.5 Other Consents. No consent of any person is required to be
obtained by the Buyer to the execution, delivery and
performance of this Agreement by the Buyer or the
consummation of the purchase of the Shares and the Notes by
the Buyer.
3.6 Purchase for Investment. The Buyer is purchasing the Shares
and the Notes solely for its own account for the purpose of
investment and not with a view to, or for sale in connection
with, any distribution of any portion thereof in violation of
any applicable securities law.
4. Survival of Representations and Warranties; Indemnification.
4.1 Survival. The representations and warranties contained in
Sections 2.7, 2.8, 2.9. 2.10, 2.11, 2.12 and 2.13 of this
Agreement shall expire twelve months after the Closing. All
other representations and warranties contained in this
Agreement shall survive the Closing.
4.2 Indemnification by the Seller. The Seller shall indemnify
and hold harmless the Buyer and CimSoft for any loss,
liability, damage or expense (including reasonable attorneys
fees) (collectively, "Damages") arising from or in connection
with (a) any inaccuracy in any of the representations and
warranties of the Seller in this Agreement or (b) any failure
by the Seller to perform or comply with any agreement in this
Agreement.
4.3 Indemnification by the Buyer. The Buyer shall indemnify and
hold harmless the Seller for any Damages arising from or in
connection with (a) any inaccuracy in any of the
representations and warranties of the Buyer in this Agreement,
(b) any failure by the Buyer to perform or comply with any
agreement in this Agreement and (c) any claims arising from
the conduct of the business of CimSoft after the date hereof.
4.4 Procedure for Indemnification. Promptly after receipt by an
indemnified party under Section 4.2 or 4.3 of notice of the
commencement of any action which give rise to Damages, such
indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party under such Section,
give notice to the indemnifying party of the commencement
thereof. Failure so to notify the indemnifying party shall
relieve it of any liability that it may have to any
indemnified party to the extent that the defense of such
action is materially prejudiced thereby, providing the
indemnifying party did not receive or otherwise have actual
notice thereof. If any such action shall be brought against
an indemnified party and it shall give notice to the
indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate therein
and, to the extent that it shall wish, to assume the defense
thereof with counsel satisfactory to such indemnified party,
and after notice from the indemnifying party to such
indemnified party of its election so they assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party under such Section for any fees of other
counsel or any other expenses (unless such fees or expenses
are incurred at the request of the indemnifying party), in
each case subsequently incurred by such indemnified party in
connection with the defense thereof, other than reasonable
costs of investigation, provided, however, that the Buyer and
CimSoft shall be entitled, at their sole election, to retain
control of any action or demand related to any intellectual
property right matters or as to which the remedy would have a
materially adverse on-going effect on CimSoft. If the
indemnifying party receives notice of any action or demand, it
shall promptly notify the indemnified party as to whether it
intends to control the defense thereof. If any indemnifying
party defends an action (a) no compromise or settlement
thereof may be effected by the indemnifying party without the
indemnified party's consent (which shall not be unreasonably
withheld) unless (i) there is no finding or admission of any
violation of law and no effect on any other claims that may
be made against the indemnified party and (ii) the sole
relief provided is monetary damages that are paid in full by
the indemnifying party and (b) the indemnifying party shall
have no liability with respect to any compromise or settlement
thereof effected without its consent. If notice is given to
an indemnifying party to the commencement of any action and
it does not, within 20 days after the indemnified party's
notice is given, give notice to the indemnified party of its
election to assume the defense thereof, the indemnifying party
shall not be bound by any compromise or settlement thereof
effected by the indemnified party without its consent, which
shall not be unreasonably withheld.
5. Notices.
All notices, consents, assignments and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given when (a) delivered by hand, (b) sent by telecopier (with receipt
confirmed), provided that a copy is mailed by registered mail, return
receipt requested, or (c) received by the delivery service (receipt
requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier
numbers as a party may designate as to itself by notice to the other
parties).
(a) If to the Buyer:
4350 Glendale - Milford Road
Suite 250
Cincinnati, OH 45242
Fax (513) 786-8363
Attn: Newton D. Baker
(b) If to the Seller:
1100 Chase Square
Rochester, New York 14604-1999
Fax (716) 325-3266
Attn: William Manning
6. Miscellaneous.
6.1 Expenses. Each party shall bear its own expenses incident to
the preparation, negotiation, execution and delivery of this
Agreement and the performance of its obligations hereunder.
6.2 Captions. The captions in this Agreement are for convenience
of reference only and shall not be given any effect in the
interpretation of this Agreement.
6.3 No Waiver. The failure of a party to insist upon strict
adherence to any term of this Agreement on any occasion shall
not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or
any other term of this Agreement. Any waiver must be in
writing.
6.4 Exclusive Agreement; Amendment. This Agreement supersedes
all prior agreements among the parties with respect to its
subject matter, and is intended (with the documents referred
to herein) as a complete and exclusive statement of the terms
of the agreement among the parties with respect thereto and
cannot be changed or terminated orally.
6.5 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original,
but all of which together shall constitute the same instrument.
6.6 Governing Law. This Agreement and (unless otherwise provided)
all amendments hereof and waivers and consents hereunder
shall be governed by the internal law of the State of Ohio,
without regard to the conflicts of law principles thereof.
6.7 Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective
successors and assigns, provided that none of the parties may
assign their rights hereunder without the consent of the other
except that the Buyer may assign its rights in connection
with any merger or consolidation of the Buyer with or into
another entity.
ACCESS CORPORATION
By:
WILLIAM MANNING
William Manning