ASSET ACQUISITION AGREEMENT
---------------------------
THIS AGREEMENT, dated August 31, 2002, by and between TURNKEY COMPUTER
SYSTEMS, INC. ("Seller") and EMTEC, INC. ("Buyer").
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, assets comprising the goodwill of Seller's managed building
services business (the "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 all of
the assets of Seller comprising the goodwill of the Business ("Goodwill Assets")
including, but not limited to,
(i) the Business customer list annexed hereto as a part hereof
as Schedule 1(a)(i) (the "Customer List") and Business customer records
("Customer Records");
(ii) all not yet completed customer contracts (the "Customer
Contracts"); and
(b) The Goodwill Assets do not include:
(i) any equipment, machinery, parts, inventory or supplies;
(ii) any accounts or loans receivable outstanding on the
Closing Date (as hereinafter defined);
(iii) cash on hand, work in process ("WIP") and cash
equivalents including all earned customer retainers existing on the Closing
Date;
(iv) any prepaid expenses;
(v) any contracts other than Customer Contracts;
(vi) equipment leases; and
(vii) furniture, fixtures and leasehold improvements.
(c) The transfer of the Goodwill Assets shall be effected by documents
in such form as Buyer and Seller shall reasonably agree.
2. Consideration for the Goodwill Assets; Assumption of Certain Liabilities.
(a) Consideration. The purchase price for the Goodwill Assets shall be
as determined in accordance with this paragraph 2(a):
(i) "Earnings Share" for a given period shall mean 50% of MBS
Earnings (as hereinafter defined) for that period, provided, that, if for that
period MBS Earnings is less than $120,000, then Earnings Share for that period
shall be the excess (if any) of MBS Earnings for that period over $60,000. "MBS
Earnings" for a given period shall mean the excess of Customer Revenues (as
hereinafter defined) for that period over the sum of (A) Personnel Costs (as
hereinafter defined) attributable to individuals generating (whether by sales or
servicing) Customer Revenues for that period, (B) 50% of the amount paid during
that period to Leonard DiCostanzo pursuant to paragraphs 2(a) of that certain
Employment Agreement between him and the Company, (C) $60,000 (the yearly
constructive allocation of corporate overhead) and (D) the actual cost of goods
sold. "Customer Revenues" for a given period shall mean the revenues actually
collected by Buyer for work and services performed and goods sold during that
period from the customers on the Customer List, from customers on the list of
previous managed building services customers included on the Customer List and
from tenants of buildings in the Ivy Equities portfolio or any other building
owned or managed by any existing customer or an affiliate thereof. "Personnel
Costs" of given individuals shall mean compensation, benefits and
employer share of state/federal payroll taxes (including without limitation,
Social Security/Medicare, FUTA, SUI/SDI/HC/WF) paid to (or with respect to)
those individuals; provided, however, that in the event that either Leonard
DiCostanzo or Joseph Simuro is terminated during the payout period the charges
attributable to their replacement(s) may not exceed the costs charged for them.
(ii) Accounting; Payment. With respect to each of the years
ending on August 31, 2003 and August 31, 2004, within 30 days of the end of that
year Buyer shall calculate MBS Earnings for that year through the end of that
year, provide Seller with a detailed accounting statement including a current
accounts receivables report and pay to Seller an amount equal to the Earnings
Share for that year calculated to the end of that year (the amount so paid, the
"Tentative Earnings Share" for that year); within 30 days of the six month
anniversary of the end of that year, Buyer shall re-calculate MBS Earnings for
that year through the six month anniversary date, and pay to Seller or Seller's
designee the excess (if any) of the recalculated Earnings Share over the
Tentative Earnings Share; Seller acknowledges that Seller shall not be entitled
to receive any further amounts with respect to MBS Earnings for that year
collected after the six month anniversary of the end of that year.
(iii) Seller, at Seller's expense, shall have the right to
audit Buyer's books and records related to the Business for the purposes of
determining Earnings Shares.
(iv) Buyer agrees that it shall use reasonable commercial
efforts to collect all sums due form the Business customers.
(b) Assumption of Certain of Seller's Liabilities. On the Closing Date
Buyer shall assume Seller's obligations under the Customer Contracts listed on
Schedule 2(b) hereto and Seller's rental obligation for the three month period
starting from the Closing Date, but in no event exceeding $5,400 per month;
Seller shall use its reasonable commercial efforts to obtain from Seller's
landlord the largest concession possible with respect to the rental obligation
for said three month period. The obligations assumed under this paragraph 2(b )
are referred to herein as the "Assumed Obligations". Except as expressly set
forth in this paragraph 2(b), 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 York 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 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. 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). 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
Buyer's 2001, 2000, 1999 fiscal years (collectively, the "Financial Statements")
which are annexed as Schedule 3 (d). 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.
(f) Change in Financial Status. Other than in the ordinary course of
business, since August 1, 2002, Seller has not (i) transferred or otherwise
terminated any Customer Contracts; (ii) disposed of customer records or other
manifestations of general goodwill used in the Business; (iii) mortgaged,
pledged or subjected to lien, charge or any other encumbrance any of the
Goodwill Assets; (iv) waived any rights of substantial value; (v) amended any
Customer Contract; (vi) entered into any transactions other than in the ordinary
course; or (vii) suffered any occurrence which has or may have a materially
adverse affect upon the Business' financial status.
(g) Good Title. Seller has good title to each of the assets comprising
the Goodwill Assets, free and clear of all liens, claims, equities or
encumbrances of any type whatsoever. On the Closing Date Buyer will receive good
title to each of the assets comprising the Goodwill Assets, free and clear of
all liens, claims, equities or encumbrances of any type whatsoever
(h) Goodwill. Simultaneously with the execution hereof, Seller is
making available to Buyer a complete copy of the Seller's Customer Records. None
of the Goodwill Assets infringes or otherwise conflicts in any material respect
with the proprietary rights of others. The Customer List is a true accurate and
complete list of Seller's customers.
(i) Customer Contracts. Schedule 2(b) annexed hereto is in all material
respects a true, accurate and complete list of all of the Customer Contracts.
Also set forth on Schedule 2(b) are: (i) a list of accounts receivable as of the
date hereof, aged as of the date hereof and broken down to show earned revenue
and unearned revenue with respect to each such account receivable as of the date
hereof, (ii) a list of WIP extant as of the date hereof and (iii) a list of
retainers paid to Seller under the Customer Contracts for services to be
performed broken down to show earned revenue and unearned revenue with respect
to each such retainer as of the date hereof. Seller has heretofore provided to
Buyer complete and accurate copies of each of the Customer Contracts which is
written and a written description detailing all of the salient terms of each of
the Customer Contracts which is not written. Each of the Customer Contracts 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
Customer Contracts by Seller and there have been no such defaults thereunder by
the customer. Except as specifically noted on Schedule 2(b), the assignment of
Seller's rights in the Customer Contracts does not require the consent or
approval of any of the parties to such agreements.
(j) Litigation. Schedule 3(j) 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 which involve the Goodwill Assets or the Business.
(k) 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.
(l) Pension Plans, Etc. Seller is not a party to any collective
bargaining agreement or any
pension, profit sharing or employee welfare plans.
(m) Employees. Annexed hereto as Schedule 3(m) is a true and accurate
list of all employees ("Employees") whose primary duties are performed on behalf
of the Business; also set forth on Schedule 3(m) 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 August 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.
(n) 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 Assets or the Seller which has had or, so far as it can
see reasonably foresee, will have a materially adverse effect on the business
prospects of the Seller's business. 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.
(o) Duration of representations. The representations and warranties of
Seller and liability therefore shall expire and be of no further force and
effect two years and six months from the Closing Date. Buyer agrees to give
Seller prompt written notice of any claimed breach of a representation or
warranty and Seller shall have ten days from its receipt if Buyer's notice to
cure any actual or claimed breach or default. The remedy of recission shall not
be available to Seller for a breach of a representation or warranty hereunder
unless Seller can show that the misrepresentation was knowingly made.
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), the written information delivered pursuant to
this Agreement and the public filing
statements of Buyer 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; 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 Leonard
DiCostanzo and Joseph Simuro to said effect.
(ii) The Goodwill Assets shall not have been adversely
affected in any material way, whether or not insured against.
(iii)The Employees listed on Schedule 5(a)(iii) annexed hereto
shall have entered into employment arrangements and signed confidentiality
agreements with Buyer; provided, that Buyer has offered each of said employees
employment terms at least as favorable to that employee as those set forth on
Schedule 3(m) for that employee.
(iv) Seller shall have complied in all material respects with
all of its obligations under this Agreement.
(v) Buyer shall have received the consent to the transactions
contemplated hereby from Fleet Bank.
(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 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 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 Goodwill Assets; (ii) mortgage, pledge or
subject to lien, charge or any other encumbrance any Goodwill Assets; (iii)
amend or terminate any material contract, except in the ordinary course of
business; (iv) increase the salaries or other compensation of any of its
employees, except for raises in the ordinary course of business; or (v) enter
into any transactions other than in the ordinary course of business.
(b) Seller hereby authorizes Buyer to:
(i) contact customers in Leonard DiCostanzo's presence to seek
to reasonably ascertain the status of work being done by Seller for them; and
(ii) negotiate in Leonard DiCostanzo's presence with and
conditionally hire (subject to closing of the transactions contemplated hereby)
the Employees listed on Schedule 5(a)(iii) annexed hereto.
(c) New York Sales Tax Bulk Sales. Immediately upon execution of this
Agreement, Buyer
shall file with the New York State Tax Department, a Notification of Sale,
Transfer or Assignment in Bulk. Buyer shall immediately notify Seller of any
determination of a deficiency in sales or compensating use taxes.
Notwithstanding anything heretofore contained herein to the contrary, if the New
York State Tax Department determines that there is a deficiency in the payment
of Seller's sales or compensating use taxes, Buyer shall pay the lesser of the
deficiency and all amounts payable to Seller pursuant to Section 2 hereof (and
not paid or payable to the Division of Taxation in accordance with paragraph
6(d) hereof) to the New York State Tax Department.
(d) 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. 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 Escrow
Agent of any determination of a deficiency in sales or compensating use taxes.
Notwithstanding anything heretofore contained herein to the contrary, 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, Buyer shall pay the
lesser of the deficiency and all amounts payable to Seller pursuant to Section 2
hereof (and not paid or payable to the New York State Tax Department in
accordance with paragraph 6(c) hereof) to the Division of Taxation.
(e) 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.
(f) 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.
(g) Seller shall act reasonably to obtain prior to the Closing Date the
consents of third parties on the Customer Contracts that are necessary and
appropriate for the assignment of such contracts to Buyer.
9. Post Closing Covenants.
(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
Business
(ii) Seller acknowledges that any action at law for any breach
or threatened breach it of the provisions of this paragraph 9(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) Seller shall pay or cause to be paid all debts or claims against
Seller as they mature.
(c) Seller shall procure and deliver to Emtec evidence, satisfactory to
Emtec, that Seller's accountant has the information necessary to prepare
Seller's audited financial statements for years ending December 31, 2000 and
2001 and unaudited interim financial statements for the six months ended June
30, 2002, and is ready, willing and able to deliver same to Buyer, at no expense
to Buyer, within 60 days following the Closing Date.
10. Indemnification.
(a) Seller shall, subject to the limitations set forth below and the
terms of this Agreement, 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 for services provided by Seller 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 10(a) including those incurred in connection
with actions brought to recover from Seller pursuant this paragraph 10(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, (ii) all
debts, claims or liabilities of whatever nature of the Buyer, including the
Assumed Obligations and those arising out of the operation or conduct of the
Business by Buyer on and after the Closing Date, (iii) 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 10(b) including those incurred in connection with actions
brought to recover from Buyer pursuant this paragraph 10(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 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.
11. Closing Date. The closing of the transactions contemplated hereby shall take
place on August 31, 2002 (the "Closing Date") at the Buyer's offices in
___________, or at such time and place as the parties otherwise mutually agree.
The Closing shall be deemed to have taken place as of the end of business on
August 31, 2002. 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 31, 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.
12. 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
for a period of 12 months from the Closing Date.
(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 88 Croak Avenue, Staten Island, NY 10314, Attention: Mr. Leonard
DiCostanzo, 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 718-477-0678, Attention: Mr. Leonard DiCostanzo, 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 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 that service of process shall be
valid if served in the manner and to the address provided in paragraph 12(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.
(p) Dissolution of Turnkey. In the event of the dissolution or
liquidation of Seller after the closing any Seller consent necessary may be
provided by Leonard DiCostanzo instead.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
TURNKEY COMPUTER SYSTEMS, INC., Seller
By: /s/ Leonard DiCostanzo
--------------------------------------
Leonard DiCostanzo, Authorized Officer
EMTEC, INC., Buyer
By: /s/ John Howlett
--------------------------------------
John Howlett, Authorized Officer
Schedule 1(a)(i)
Customer List
Schedule 2(b)
Customer Contracts
Schedule 2(d)
Financial Statements
Schedule 3(j)
Litigation
Schedule 3(m)
Employees
Schedule 5(a)(iii)
Employees Upon Whom Agreement is Conditioned