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Exhibit 10.1
ASSET ACQUISITION AGREEMENT
THIS AGREEMENT, dated August 12, 2002, by and between ACENTRA
TECHNOLOGIES, INC. ("Seller") and EMTEC, INC. ("Buyer").
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, assets comprising Seller's State of New Jersey computer supply and
services business (the "State Business").
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual agreements herein contained, the parties hereto do hereby agree as
follows:
1. Transfer of Assets.
(a) On the terms and subject to the conditions herein set forth, the
Seller shall sell, transfer, convey, assign and deliver to the Buyer, and the
Buyer shall acquire and accept all right, title and interest in and to the
following assets of Seller comprising the State Business ("State Business
Assets"):
(i) Seller's contract with the State of New Jersey, a copy of
which is annexed hereto as Schedule 1.(a)(i), (the "State Contract") and the
underlying purchase orders, copies of which are also annexed hereto as Schedule
1.(a)(i) (the "Purchase Orders");
(ii) the inventory listed on Schedule 1.(a)(ii) annexed hereto
but only to the extent that same is attributable to Purchase Orders which are
open and valid as of the Closing Date (as hereinafter defined) (the
"Inventory");
(iii) the cable parts listed on Schedule 1.(a)(iii) annexed
hereto ("Cable Parts");
(iv) work in process performed under the Purchase Orders
("WIP") extant on the Closing Date;
(v) the equipment and tools listed on Schedule 1.(a)(v) annex
hereto (the "Equipment"); and
(vi) all rights in the name "ACENTRA TECHNOLOGIES".
(b) The transfer of the State Business Assets shall be effected by
documents in such form as Buyer and Seller shall reasonably agree.
2. Consideration for the State Business Assets; Assumption of Certain
Liabilities.
(a) Consideration.
(i) On the Closing Date Buyer shall pay to Escrow Agent (as
defined in paragraph 6.(c) hereof) $198,510 by certified check; said amount is
(A) inclusive of $37,753 (the "Estimated WIP"), which is the amount of WIP
estimated to be outstanding as of August 9, 2002, (B) inclusive of $208,000 (the
"Estimated Inventory"), which is the amount of Inventory estimated to be
outstanding as of August 9, 2002, (C) inclusive of $100,000, which is the agreed
value of the State Contract and Purchase Orders predicated upon $4,500,000 (the
"Estimated Outstanding Purchase Order Amount"), which is the aggregate amount of
Purchase Orders estimated to be outstanding as of August 9, 2002 and (D) net of
$173,358 (the "Estimated Advance Payment Amount"), which is the estimated amount
of payments received by Seller under the Purchase Orders which are unearned as
of August 9, 2002.
(ii) Within 30 days following the Closing Date Buyer and
Seller shall determine (through meetings with the customers under the Purchase
Orders) (A) the amount of payments received by Seller under the Purchase Orders
which remains unearned as of August 9, 2002
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(said amount being referred to hereunder as the "Actual Advance Payment
Amount"), (B) the actual amount of Inventory on hand as of August 9, 2002
(said amount being referred to hereunder as the "Actual Inventory Amount"), (C)
the amount of work performed by Seller for which Seller has not billed and has
not been paid in advance as of August 9, 2002 (said amount being referred to
hereunder as the "Actual WIP"), (D) the actual amount of Purchase Orders
outstanding as of August 9, 2002 (said amount being referred to hereunder as the
"Actual Outstanding Purchase Order Amount").
(iii) Within 45 days following the Closing Date, Seller shall
pay to Buyer (out of the funds held by the Escrow Agent) the amount ("Purchase
Price Rebate"), if any, by which the sum of the Actual Advance Payment Amount,
the Estimated Inventory Amount, the Estimated WIP and the Purchase Order
Adjustment Amount (as hereinafter defined) exceeds the sum of the Estimated
Advance Payment Amount, the Actual Inventory Amount and the Actual WIP, and
Buyer shall pay to Seller the amount, if any, by which the sum of the Estimated
Advance Payment Amount, the Actual Inventory Amount and Actual WIP exceeds the
sum of the Actual Advance Payment Amount, the Estimated Inventory Amount, the
Estimated WIP and the Purchase Order Adjustment Amount; immediately upon
determining same, Buyer and Seller shall notify the Escrow Agent whether there
is a Purchase Price Rebate and the amount of same, if any. "Purchase Order
Adjustment Amount" shall equal the amount, if any, by which $100,000 exceeds the
amount resulting from multiplying $100,000 by a fraction, the numerator of which
is the Actual Outstanding Purchase Order Amount and the denominator of which is
the Estimated Outstanding Purchase Order Amount.
(b) Allocation of Consideration. The consideration for the State
Business Assets shall be allocated as follows:
State Contract (including the Purchase Orders) $100,000 minus the Purchase
Order Adjustment Amount
Inventory the Actual Inventory Amount
Cable Parts $ 2,500
the net of prepayments, inventory to be determined pursuant to
adjustment, WIP adjustment and paragraph 2.(a)(iii) hereof
Purchase Order adjustment
Equipment $ 23,615
(c) Assumption of Certain of Seller's Liabilities. On the Closing Date
Buyer shall assume Seller's obligations under the State Contract and the
Purchase Orders; the obligations assumed under this paragraph 2(c) are referred
to herein as the "Assumed Obligations". Except as expressly set forth in this
paragraph 2(c), Buyer is not assuming any of Seller's liabilities.
3. Representations and Warranties of Seller. Seller hereby represents, warrants
and agrees as follows:
(a) Organization and Qualification; Corporate Action. The Seller is a
corporation duly organized and validly existing under the laws of New Jersey and
has all requisite power to own or lease its properties and to carry on its
business as now being conducted. All corporate action necessary for the
authorization and performance on the part of Seller of this Agreement and the
transactions contemplated hereby has been taken, and this Agreement represents a
valid and
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binding obligation of Seller in accordance with its terms.
(b) No Conflict. The execution, delivery and performance by the Seller
of this Agreement and the consummation of the transactions contemplated hereby
will not, in any material respect, violate, be in conflict with, result in the
breach of or constitute (with due notice or lapse of time or both), a default
under (i) the certificate of incorporation or by-laws of the Seller (ii) any
law, rule, court order, consent decree or regulation applicable to the Seller or
(iii) any agreement or other instrument of whatever nature to which the Seller
is a party or by which it is bound, except as specifically noted on the
Schedules annexed to this Agreement with respect to (A) certain third party
notices or (B) consents on assignments.
(c) Compliance with Law. Except as set forth on Schedule 3.(i) hereto,
and except to the extent that the failure to do so could not reasonably be
expected to have a material adverse effect on the State Business, the business
of the Seller has been in the past and is presently conducted in all material
respects in accordance with all applicable laws, regulations and ordinances
pertaining thereto (including, without limitation, all federal, state and local
environmental laws). Except as identified on Schedule 3.(i) hereto, no
submissions must be made with, or permission obtained from, any state or local
authority in order to proceed with this transaction.
(d) Financial Statements. Seller has heretofore delivered to Buyer, and
initialed for identification purposes, its balance sheets and statements of
operations for the year ended September 30, 2000 (collectively, the "Financial
Statements").The Financial Statements accurately reflect, in all material
respects, the financial position and results of operations of the Seller, as of
their respective dates, and have been prepared, in all material respects, on a
consistent basis, in accordance with generally accepted accounting principles.
(e) Taxes. Seller has filed all tax returns required to be filed by it
on or prior to the date hereof by all taxing authorities to which it or its
properties are subject and has paid all taxes which have become due pursuant to
such returns and pursuant to any assessment which has been received by it. Such
returns are true and correct. Seller owes no sales or compensating use taxes or
employment taxes.
(f) Liens. Seller has not mortgaged, pledged or subjected to lien,
charge or any other encumbrance any of the State Business Assets other than the
lien in favor of Summit Business Capital Corp. (the "Fleet Lien"), the lien in
favor of Business Alliance Capital Corp. (the "BACC Lien") and the lien in favor
of Dell Marketing, L.P. (the "Dell Lien").
(g) Good Title. Seller has good title to each of the assets comprising
the State Business Assets, free and clear of all liens, claims, equities or
encumbrances of any type whatsoever other than the Fleet Lien, the BACC Lien and
the Dell Lien. On the Closing Date Buyer will receive good title to each of the
assets comprising the State Business Assets, free and clear of all liens,
claims, equities or encumbrances of any type whatsoever
(h) State Contract. Schedule 1.(a)(i) annexed hereto contains complete
and accurate copies of the State Contract and the Purchase Orders as currently
in effect. Each of the State Contract and Purchase Orders is in full force and
effect and constitutes a legal, valid and binding obligation of the respective
parties thereto, and is enforceable in accordance with its terms. There has been
no default, in any material respect, under any of the State Contract or Purchase
Orders by Seller and there have been no such defaults thereunder by the State of
New Jersey. Also set forth on said Schedule 1.(a)(i) is a list of WIP extant as
of the date hereof identified to the particular Purchase Orders. Seller has
heretofore provided Buyer with true and accurate copies of all documentation
supporting the WIP.
(i) Litigation. Schedule 3.(i) annexed hereto is a true, accurate and
complete list of all actions, suits, proceedings and counterclaims (whether or
not purportedly on behalf of the Seller) pending or, to the knowledge of Seller,
threatened against the Seller.
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(j) No Broker's Fee. Seller is not a party to, or in any way obligated
under, any contract or outstanding claim for the payment of any broker's or
finder's fee in connection with the origin, negotiation, execution or
performance of this Agreement.
(k) Pension Plans, Etc. Except as set forth on Schedule 3.(k) annexed
hereto, Seller is not a party to any collective bargaining agreement or any
pension, profit sharing or employee welfare plans.
(l) Employees. Annexed hereto as Schedule 3.(l) is a true and accurate
list of all employees ("Employees") whose primary duties are performed on behalf
of the State Business; also set forth on Schedule 3.(l) are the Employees'
respective positions, functions, present rate of base compensation, incentive
and bonus compensation paid in respect of calendar year 2001 and anticipated
incentive and bonus compensation due to them for calendar 2002 through July 31,
2002. Seller has heretofore provided to Buyer complete and accurate copies of
each written employment contract and a written description detailing all of the
salient terms of employment with respect to each Employee for whom it does not
have a written employment agreement. Seller has met or complied with all of its
obligations in all material respects under its agreements with its Employees.
(m) Representations and Warranties. The representations and warranties
set forth in this Section 3 and the written information delivered pursuant to
the provisions of this Section 3 do not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make such
representations and warranties and information, in light of the circumstances
under which they have been made, not misleading; Seller has not withheld from
Buyer its knowledge of any material fact or event that has occurred or is about
to occur regarding the State Business or the Seller which has had or, so far as
it can see reasonably foresee, will have a materially adverse effect on the
State Business of the Seller. The representations and warranties made in this
Section 3 will be true and correct in all material respects on and as of the
Closing Date with the same force and effect as though such representations and
warranties had been made on and as of the Closing Date, except to the extent
that they specifically relate to an earlier date.
4. Representations and Warranties of Buyer. The Buyer hereby represents,
warrants and agrees as follows:
(a) Organization and Qualification. The Buyer is a corporation duly
organized and validly existing under the laws of New Jersey and has all
requisite power to own or lease its properties and to carry on its business as
now being conducted.
(b) Corporate Action. All corporate action necessary for the
authorization and performance on the part of Buyer of this Agreement and the
transactions contemplated hereby has been taken, and this Agreement represents a
valid and binding obligation of Buyer in accordance with its terms.
(c) No Conflict. The execution, delivery and performance by the Buyer
of this Agreement and the consummation of the transactions contemplated hereby
will not, in any material respect, violate, be in conflict with, result in the
breach of or constitute (with due notice or lapse of time or both), a default
under (i) the certificate of incorporation or by-laws of the Buyer (ii) any law,
rule, court order, consent decree or regulation applicable to the Buyer or (iii)
any agreement or other instrument of whatever nature to which the Buyer is a
party or by which it is bound.
(d) No Broker's Fee. Buyer is not a party to, or in any way obligated
under, any contract or outstanding claim for the payment of any broker's or
finder's fee in connection with the origin, negotiation, execution or
performance of this Agreement.
(e) Representations and Warranties. The representations and warranties
set forth in this Section 4.(e) and the written information delivered pursuant
to the provisions of this Section 4.(e) do not contain any untrue statement of a
material fact or omit to state a material fact necessary
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in order to make such representations and warranties and information, in light
of the circumstances under which they have been made, not misleading; Buyer has
not withheld from Seller its knowledge of any material fact or event that has
occurred or is about to occur regarding Buyer which has had or, so far as it can
see reasonably foresee, will have a materially adverse effect on the business
prospects of the Buyer. The representations and warranties made in this Section
4.(e) will be true and correct in all material respects on and as of the Closing
Date with the same force and effect as though such representations and
warranties had been made on and as of the Closing Date, except to the extent
that they specifically relate to an earlier date.
5. Conditions.
(a) The obligations of Buyer hereunder are, at the option of Buyer,
subject to the conditions that, at the Closing Date:
(i) The representations and warranties made by Seller herein
shall be correct in all material respects at and as of the Closing Date and
Seller shall have delivered an officer's certificate signed by Joseph Garofalo
to said effect.
(ii) Seller shall have delivered to Buyer copies of (A) the
unanimous written consent of Seller's Shareholders authorizing the transactions
contemplated under this Agreement, and (B) the unanimous written consent of
Seller's Board of Directors authorizing the transactions contemplated under this
Agreement and authorizing Seller's officers to implement same
(iii) Seller shall have delivered to Buyer evidence,
satisfactory to Buyer's counsel, of the consent of the State of New Jersey (and
other entities buying under the State Contract) to the assignment of the State
Contract and all open and outstanding Purchase Orders as of the Closing Date.
(iv) Seller shall have delivered to Buyer evidence,
satisfactory to Buyer's counsel, of the release of the State Business Assets
from the Fleet Lien, the BACC Lien and the Dell Lien.
(v) Dell Marketing L.P. shall have delivered to Buyer
evidence, satisfactory to Buyer, that Dell Marketing L.P. is willing to do
business with Buyer under the same terms it did business with Seller or more
favorable terms to Buyer than those it did business with Seller.
(vi) Buyer shall have obtained from each of the subcontractors
listed on Schedule 5.(a)(vi) annexed hereto a letter of intent with Buyer to
continue performing for Buyer the services such subcontractor performed for
Seller on terms at least as favorable to Buyer as those given to Seller.
(vii) The State Business Assets shall not have been adversely
affected in any material way, whether or not insured against.
(viii)The Employees listed on Schedule 5.(a)(viii) annexed
hereto shall have entered into employment arrangements and signed
confidentiality agreements with Buyer.
(ix) Seller shall have complied in all material respects with
all of its obligations under this Agreement.
(x) Buyer shall have received the consent to the transactions
contemplated hereby from Fleet Bank, N.A. and Buyer's Board of Directors.
(xi) Seller shall have delivered to Buyer evidence,
satisfactory to Buyer, that Seller's accountant has the information necessary to
prepare Seller's audited financial statements for years ending September 30,
1999, 2000 and 2001and is ready, willing and able to deliver same to Buyer, at
no expense to Buyer, within 60 days following the Closing Date.
(b) The obligations of Seller hereunder are, at the option of Seller,
subject to the conditions that, at the Closing Date:
(i) the representations and warranties made by Buyer herein
shall be correct in all material respects at and as of the Closing Date and an
officer of Buyer shall have delivered his
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certificate to said effect.
(ii) Buyer shall have complied in all material respects with
all of its obligations under this Agreement.
6. Pre-Closing Covenants.
(a) From the date hereof until the Closing Date, Seller shall conduct
the State Business in substantially the same manner as heretofore conducted and
shall use its commercially reasonable efforts to preserve its business
organization and to preserve its relationships with suppliers, customers,
employees and others having business relations with it. Without limiting the
foregoing Seller shall not (i) dispose of any of the State Business Assets; (ii)
mortgage, pledge or subject to lien, charge or any other encumbrance any State
Business Assets; (iii) amend or terminate the State Contract or any of the
Purchase Orders; (iv) increase the salaries or other compensation of any of its
employees; or (v) enter into any transactions other than in the ordinary course
of business.
(b) Seller hereby authorizes Buyer to:
(i) contact the State of New Jersey and any of its constituent
entities, departments, agencies or other subdivisions to seek to reasonably
ascertain the status of work being done by Seller for them; and
(ii) negotiate with and conditionally hire (subject to closing
of the transactions contemplated hereby) the Employees listed on Schedule
5.(a)(viii) annexed hereto.
(c) New Jersey Sales Tax Bulk Sales. To the extent applicable, Seller
shall comply with all notice and other requirements of N.J.S.A. 54:32B-1 et seq.
and N.J.S.A. 54:32B-22(c). Seller will cooperate with Buyer in all matters
relating to such notice and will furnish such additional information as Buyer
may require to satisfy the statutory provisions in this regard. Immediately upon
execution of this Agreement, Buyer shall file with the director of the Division
of Taxation, a notice of sale. Buyer shall immediately notify Seller and Blank
Rome Comisky & McCauley LLP (the "Escrow Agent") of any determination of a
deficiency in sales or compensating use taxes.
(i) Notwithstanding anything heretofore contained herein to
the contrary, all sums payable to Seller pursuant to Section 2 hereof shall be
paid to Escrow Agent to be held in escrow, in an interest bearing account,
pursuant to the terms of this paragraph 6(c).
(ii) If the director of the Division of Taxation determines
that there is a deficiency in the payment of Seller's sales or compensating use
taxes, the Escrow Agent, upon being notified of same, shall pay the lesser of
the deficiency and all amounts held in escrow to the Division of Taxation.
(iii) On the later of (A) 10 business days from the Closing
Date and (B) five business days following notification by Buyer and Seller of
whether there is a Purchase Price Rebate and the amount of same, if any, the
Escrow Agent shall pay to Buyer the lesser of (C) the amount of the escrowed
funds Escrow Agent is still holding and (D) the amount of the Purchase Price
Rebate and shall pay to Seller any funds thereafter remaining in escrow
hereunder.
(iv) The Escrow Agent shall in no case be liable for failure
of any of the terms hereof or for any damage caused either to the Buyer or
Seller by the Escrow Agent in connection with the escrow established hereby
except by reason of the Escrow Agent's gross negligence, co-mingling or willful
misconduct.
(d) Seller shall use its commercially reasonable efforts to cause the
satisfaction of the conditions to the obligations of Buyer set forth in
paragraph 5.(a) hereof.
(e) Buyer shall use its commercially reasonable efforts to cause the
satisfaction of the conditions to the obligations of Seller set forth in
paragraph 5.(b) hereof.
7. Post Closing Covenants.
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(a) Non-Compete; Non-Solicit. (i) For a period of two years following
the Closing Date Seller shall not, directly or indirectly, engage in, own,
manage, operate, join, control, be financially interested in, represent or
otherwise render assistance to, any business enterprise which competes with the
State Business.
(ii) Seller acknowledges that any action at law for any breach
or threatened breach it of the provisions of this paragraph 7.(a) may be
inadequate and accordingly agrees that Buyer may, without limiting any other
remedy available to it, enforce such provisions by permanent or temporary
injunctive or mandatory relief without the need of proving actual damage.
(b) Within 60 days following the Closing Date Seller shall, at Seller's
expense, cause to be delivered to Buyer audited September 30, 1999, 2000 and
2001.
(c) Seller shall use its best efforts to pay or cause to be paid all
debts or claims against Seller in accordance with applicable law.
8. Indemnification.
(a) Seller shall jointly and severally indemnify and hold Buyer
harmless from and against any and all losses, liabilities, damages,
deficiencies, costs, expenses or other liabilities of Buyer of every kind,
nature and description arising out of or resulting from (i) the breach by Seller
of any covenant, representation, warranty or agreement hereunder, (ii) all
claims for warranty for services performed by the Seller prior to or as of the
Closing Date, (iii) all claims for warranty or product liability for products
shipped by the Seller prior to or as of the Closing Date not otherwise
reimbursed by the manufacturer, (iv) all claims for employee benefits associated
with Seller's employment arrangements (including, but not limited to,
liabilities for accrued vacation and severance pay, contributions to pension,
profit sharing, employee welfare, benefit and like plans for Seller's
employees), (v) all debts, claims or liabilities of whatever nature of the
Seller other than the Assumed Obligations, (vi) any sales or compensating use
tax deficiency or (vii) any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses (including reasonable
attorney's fees) incident to any of the matters set forth in this paragraph
8.(a) including those incurred in connection with actions brought to recover
from Seller pursuant this paragraph 8.(a).
(b) Subject to the terms of this Agreement, Buyer shall indemnify and
hold Seller harmless from and against any and all losses, liabilities, damages,
deficiencies, costs, expenses or other liabilities of Seller of every kind
nature and description arising out of or resulting from (i) the breach by Buyer
of any covenant, representation, warranty or agreement hereunder, including the
Assumed Obligations and the operation or conduct of the Business by Buyer on and
after the Closing Date, (ii) any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses (including reasonable
attorney's fees) incident to any of the matters set forth in this paragraph
8.(b) including those incurred in connection with actions brought to recover
from Buyer pursuant this paragraph 8.(b).
(c) Indemnification Procedures. If subsequent to the Closing any claim
(a "Claim") is asserted against a party to this Agreement as to which such party
believes it is entitled to indemnification under this Agreement, such party (the
"Indemnified Party") shall promptly after learning of such Claim notify in
writing the party obligated to indemnify it (the "Indemnifying Party") in
writing. The Indemnifying Party shall have the right, upon written notice to the
Indemnified Party within 15 days after receipt from the Indemnified Party of
written notice of such Claim, to conduct at its expense the defense against such
Claim in its own name, or if necessary in the name of the Indemnified Party. If
the Indemnifying Party shall fail to give such notice, it shall be deemed to
have elected not to conduct the defense of the subject Claim, and in such event
the Indemnified Party shall have the right to conduct such defense and to
compromise and
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settle the Claim with the prior written consent of the Indemnifying Party, which
shall not be unreasonably withheld. If the Indemnifying Party does elect to
conduct the defense of the subject Claim, the Indemnified Party will cooperate
with and make available to the Indemnifying Party such assistance and materials
as may be reasonably requested by it, all at the expense of the Indemnifying
Party, and the Indemnified Party shall have the right at its expense to
participate in the defense, provided that the Indemnified Party shall have the
right to compromise and settle the Claim only with the prior written consent of
the Indemnifying Party. Any judgment entered or settlement agreed upon in the
manner provided herein shall be binding upon the Indemnifying Party, and shall
conclusively be deemed to be an obligation with respect to which the Indemnified
Party is entitled to indemnification hereunder.
9. Closing Date. The closing of the transactions contemplated hereby shall take
place on August 12, 2002 or as soon thereafter as is possible (the "Closing
Date") at the Buyer's offices in Mt Laurel, NJ or at such time and place as the
parties otherwise mutually agree. In the event that, through no fault of either
of the parties, the closing of the transactions contemplated hereby has not
occurred on or before August 30, 2002 (or such later date as the parties may
agree to in writing) this Agreement shall be terminated and of no further force
and effect.
10. Miscellaneous.
(a) Survival of Representations and Warranties. All representations,
warranties, covenants and agreements contained herein or made in writing in
connection herewith shall survive the execution and delivery of this Agreement.
(b) Further Assurances. Each of the parties agrees to execute such
other documents and perform (or cause to be performed) such other acts as the
other may reasonably request in order to effectuate the provisions and intent of
this Agreement.
(c) Notices. Any notice or other communication in connection with this
Agreement shall be in writing and shall be deemed to have been given (i) if
personally delivered, when so delivered, (ii) if by Federal Express or other
recognized next day carrier, two business days after mailing, addressed, if to
Seller, at 8 Milford Drive, Marlton, NJ 08053, Attention: Mr. Joseph Garofalo,
and if to Buyer, at 817 East Gate Dr., Mt. Laurel NJ 08954, Attention: Mr. John
Howlett, or (iii) if by facsimile, once transmitted (provided that the
appropriate answer back or telephonic confirmation is received), if to Seller,
at 609-586-0441,Attention: Mr. Joseph Garofalo, and if to Buyer, at
856-235-2932, Attention: Mr. John Howlett, provided, further, that such notice
or other communication is also promptly thereafter sent in accordance with the
provisions of clause (ii) above. In addition to the foregoing, a copy of said
notice shall be sent by recognized "next day" carrier on the same day as the
giving of the notice (for next day delivery), in the case of a notice to Seller
to Peter A. Gold, Esq., Blank Rome Comisky & McCauley LLP, Woodland Falls
Corporate Park, 210 Lake Drive East, Suite 200, Cherry Hill, NJ 08002, in the
case of a notice to Buyer, to Michael R. Spar, Esq., Goldberg, Mufson & Spar,
P.A., 200 Executive Drive, West Orange, NJ 07052. Any party may change the
address or facsimile number to which notices or other communications hereunder
are to be delivered by giving the other party notice in the manner set forth.
(d) Conflict of Law and Consent to Jurisdiction. This Agreement shall
be deemed to be a contract under the laws of the State of New Jersey and for all
purposes shall be governed by and construed in accordance with the laws of said
State, without regard to principles of conflicts of laws. Each of the parties
hereby submits himself/herself/itself and his/her/its properties and assets to
the exclusive jurisdiction of the courts of the State of New Jersey for all
disputes relating to the construction, interpretation, enforcement and
performance of this Agreement, hereby waiving all defenses based on venue or
convenience of forum, and irrevocably agrees
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that service of process shall be valid if served in the manner and to the
address provided in paragraph 10.(c) hereof. Notwithstanding anything contained
in this paragraph to the contrary, the parties shall be entitled to seek
injunctive relief in any jurisdiction necessary to make such relief effective.
(e) Severability. If any provision of this Agreement shall for any
reason be held invalid or unenforceable by any court or governmental agency of
competent jurisdiction, such invalidity or unenforceability shall not affect any
other provision hereof or thereof, but this Agreement shall be construed as if
such invalid or unenforceable provision had never been contained herein or
therein, so long as the economic or legal substance of the transactions
contemplated by this Agreement are not affected in any materially adverse way to
any party to this Agreement. The section and other headings contained in this
Agreement are for reference purposes only and shall not limit or otherwise
affect the meaning of interpretation of this Agreement.
(f) Entire Agreement. This Agreement, the Schedules hereto and hereby
made a part hereof and other documents delivered pursuant hereto and signed by
the parties hereto, (i) contain the entire agreement among the parties hereto
with respect to the transactions contemplated hereby, (ii) supersede all prior
agreements or understandings among the parties hereto relating to the subject
matter hereof and (iii) cannot be amended, modified, changed or terminated
except by a writing signed by the party against which enforcement thereof is
sought.
(g) Preparation of Agreement. The parties acknowledge that this
Agreement was, in effect, prepared jointly; therefore, it is the parties' intent
that the Agreement be construed without any presumption against one party or the
other as the draftsman.
(h) Date of Agreement. The date of this Agreement shall be the date on
which it is executed by all parties or, if not executed simultaneously, the date
on which both parties have a fully executed copy of the Agreement; said date
shall be inserted at the top of the first page hereof.
(i) Authority to Execute. Each of the individuals executing this
Agreement, by his/her act of executing this Agreement, represents and warrants
that he/she has full authority and/or has been duly authorized by his/her
respective entity to do so on behalf of such entity.
(j) Parties in Interest; Assignments. This Agreement shall be binding
upon and inure to the benefit of each of the parties hereto and their permitted
successors and assigns. Neither party may assign or otherwise transfer its
rights or obligations without the prior written consent of the other party.
(k) Waiver. The failure of either party to insist upon a strict
performance of any of the agreements, terms, covenants and conditions hereof
shall not be deemed a waiver of any subsequent breach or default in any such
agreements, terms, covenants and conditions.
(l) Singular/Plural, Gender. Whenever herein the singular number is
used the same shall include the plural and vice versa, as the context shall
require. Whenever herein the masculine gender is used the same shall include the
feminine and neuter genders and vice versa, as the context shall require.
(m) Prevailing Party. The prevailing party in any dispute under this
Agreement shall be entitled to receive from the losing party the prevailing
party's costs of enforcement of this Agreement (including, without limitation,
its court fees and reasonable attorneys' fees).
(n) Counterparts. This Agreement may be executed in one or more
counterparts, which shall constitute one and the same instrument; facsimile
copies of signatures shall be binding.
(o) Publicity. Buyer and Seller will consult each other before issuing
any press release or other public statement in connection with the matters
contemplated by this Agreement and provide each other the opportunity to review,
comment upon and concur therewith; provided, however, that this paragraph shall
not be construed to in any way constrain Buyer from complying with its security
law disclosure obligations.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ACENTRA TECHNOLOGIES, INC., Seller
By:___________________________
Joseph Garofalo, Authorized Officer
EMTEC, INC., Buyer
By:___________________________
John Howlett, Authorized Officer
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Schedule 1.(a)(i)
State contract and Purchase Orders
Schedule 1.(a)(ii)
Inventory
Schedule 1.(a)(iii)
Cable Parts
Schedule 1.(a)(v)
Equipment
Schedule 3.(i)
Litigation
1. Acentra ats. Adams - Superior Court of New Jersey, Burlington County, Law
Division, - Docket No. BUR-L-1013-02. On March 25, 2002, Plaintiff Michael Adams
filed this cause of action against Acentra claiming that Acentra breached an
alleged one-year employment agreement with him. Acentra has filed an answer and
discovery is proceeding. There have been preliminary settlement discussions, but
no final resolution.
2. Stark matter
3. Acentra/Department of Labor - The New Jersey Department of Labor (the
"NJDOL") has audited Acentra's pay records for five (5) projects Acentra worked
on pursuant to contracts with the New Jersey Department of Treasury (the
"NJDOT") and alleged that, in some cases, Acentra has not paid the "prevailing
wage rate" for public works contracts under the Prevailing Wage Act. Acentra has
maintained that its contracts with the NJDOT are not "public works contracts"
and thus not subject to the Prevailing Wage Act. Acentra has also asserted that
it paid the rates specified in its collective bargaining agreements which it was
advised were the "prevailing rates." Acentra is currently attempting to settle
these matters with the NJDOL.
4. Unsecured Trade Creditors - Numerous unsecured trade creditors have made
threats to file an action to collect outstanding invoices if not paid in the
near future.
Schedule 3.(k)
Collective Bargaining Agreements
1. Collective Bargaining Agreements
a.
b.
c.
2. Phantom Stock Plan
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Schedule 3.(l)
Employees
Schedule 5.(a)(vi)
Sub-Contractors Upon Whom Agreement is Conditioned
Schedule 5.(a)(viii)
Employees Upon Whom Agreement is Conditioned
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