Dated the day of 2000
Between
ELTRAX SYSTEMS SDN. BHD.
And
ELTRAX INTERNATIONAL INC.
And
VERSO TECHNOLOGIES, INC.
And
IMPACT LEVEL (M) SDN. BHD.
And
AREMISSOFT CORPORATION
For the Purchaser For the Vendor
Zaid Ibrahim & Co Lee Ong & Kandiah,
Level 19, Menara Milenium, Suite 2.07-2.10, 2nd Floor,
Jalan Damanlela, Wisma Mirama,
Pusat Bandar Damansara, Jalan Wisma Putra,
50490 Kuala Lumpur, 50460 Kuala Lumpur,
Malaysia. Malaysia
File Ref.: 2002382 LYN/CHS Tel.: 603 2448336 /
Tel.: 603 2579999 603 2432395
Doc. ID - 93341-5
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ASSET SALE AGREEMENT
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Execution copy
CONTENTS
1. Definitions And Interpretation 2
1.1 Definitions 2
1.2 Interpretation 7
2. Sale and Purchase of the Assets 7
2.1 Sale and purchase 7
2.2 Consideration 8
2.3 Payment of the Consideration 8
2.4 Title and risk 8
4. Conditions Precedent 9
5. Obligations pending Completion 10
6 Completion 11
6.1 Place for Completion 11
6.2 Purchaser's Obligations at Completion 11
6.3 Vendor's obligations at Completion 11
7. COLLECTION OF RECEIVABLES AND AGREED LIABILITIES 13
8. Apportionments 14
9. Employees 15
9.1 Vendor's obligations to Employees 15
9.2 Purchaser's offer of employment 15
9.3 Transferring Employees 16
9.4 Purchaser's obligations for accruing entitlem 16
9.5 Employment Provident Fund 16
9.6 Vendor's Indemnity concerning Employees 16
9.8 General Co-ordination 17
10 Vendor's Warranties /Indemnities 17
11. Claims and Liabilities 19
12. Title 22
13. Stocks 23
14. Guarantees 24
15. General 25
15.1 Notices 25
15.2 Further Assurances 26
15.3 Entire Agreement 26
15.4 Variation 26
15.5 Assignment 27
15.6 Waivers 27
15.7 No Merger 27
15.8 Enforceability 27
15.9. Governing Law 27
15.10 Arbitration 28
15.11 Costs 28
15.12 Counterparts 28
16. Taxation 28
17. No Disclosure 28
17.1 Confidentiality 28
17.2 Exceptions 28
17.3 Public announcements 29
17.4 Survival 29
Schedule 1 32
Assets 32
Goodwill 33
Agreed Liabilities 34
Schedule 2 35
Computer Service Agreements 35
Equipment Sales and Software Licence Agreements 37
Computer Software Licenses 38
Schedule 3 39
The Employees 39
Schedule 4 40
The Vendor's Warranties 40
Schedule 5 55
Claims against Warranties 55
Schedule 6 56
Office lease 56
Schedule 7 57
Receivables 57
ASSET SALE AGREEMENT
THIS AGREEMENT is made on 2000
BETWEEN
1. ELTRAX SYSTEMS SDN. BHD. (Company No. : 290262-W), a company incorporated
under the laws of Malaysia and having its registered office at Suite
19-9-1, Level 9, UOA Centre, 19, Jalan Ampang, 50450 Kuala Lumpur, Malaysia
("the Vendor");
AND
2. ELTRAX INTERNATIONAL INC., a corporation incorporated under the laws of the
state of Pennsylvania, the United States of America, and having its
principal place of business at Greenburg, Pennsylvania, the United States
of America (Incorporation No.: 25-1369276) ("Eltrax International");
AND
3. VERSO TECHNOLOGIES, INC., a corporation incorporated under the laws of the
state of Minnesota, the United States of America, and having its principal
place of business at Atlanta, Georgia, the United States of America
(Incorporation No.: 41-1484525) ("Verso");
AND
4. IMPACT LEVEL (M) SDN. BHD. (Company No: 519372-M), a company incorporated
under the laws of Malaysia and having its registered address at Level 22,
Menara Milenium, Jalan Damanlela, Pusat Bandar Damansara, 50490 Kuala
Lumpur, Malaysia ("the Purchaser"); and
AND
5. AREMISSOFT CORPORATION, a Delaware corporation incorporated under the
laws of the state of Delaware, the United States of America, and having
its principal place of business at 216 Haddon Avenue, Suite 607,
Westmont, New Jersey, 08108, the United States of America
(Incorporation No.: 2902859) ("AremisSoft").
WHEREAS
A. The Vendor is a company incorporated under the Companies Act 1965 and
engages in, inter alia, the business of providing services related to
computer hardware and software ("Business").
B. The Vendor is a wholly-owned subsidiary of Eltrax Systems Pte. Ltd.
(Company No.: 198101050C), a company incorporated in Singapore and having
its principal place of business at 64, Tras Street, Sulcus House, Singapore
and which is a subsidiary of Eltrax International.
C. The Purchaser is a company incorporated under the Companies Act 1965 and is
a subsidiary of AremisSoft Hospitality (US) Inc..
D. Pursuant to the Head Agreement dated 28 September 2000 ("Head Agreement")
entered into between AremisSoft and the Eltrax Guarantors (as defined
hereafter), AremisSoft has agreed to purchase all Acquired Assets (as
defined in the Head Agreement) and assume all Acquired Liabilities (as
defined in the Head Agreement) for the consideration (as defined in the
Head Agreement).
E. As part of the Head Agreement, the Vendor has agreed to sell and the
Purchaser has agreed to purchase the Assets (as defined herein) and assume
the Agreed Liabilities (as defined herein) upon the terms and subject to
the conditions as contained herein.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
The following definitions apply unless the context requires otherwise:
Accounting Date means 31 October 2000
Acquired Business the businesses in which the Assets are utilized.
Acquired Business Balance Sheet The balance sheet as of 31 October
2000, included in the unaudited financial statements (limited to
the balance sheet and income statement prepared in accordance
with the generally accepted accounting principles in Malaysia) of
the Acquired Business.
Agreed Liabilities means the liabilities of the Vendor to be assumed
by the Purchaser under this Agreement as set out in Schedule 1
which includes the following:-
(i) those known liabilities accrued and reserved for in the
Acquired Business Balance Sheet;
(ii) those known liabilities that have arisen (or that arise) and
have been incurred (or that are incurred) in the ordinary
course of business between the date of the Acquired Business
Balance Sheet and the Completion Date;
(iii)those known liabilities with respect to the contracts or
agreements assumed by the Purchaser hereunder, as identified
in Schedule 1;
(iv) those known liabilities which are in an amount less than the
equivalent of USD10,000 individually and less than the
equivalent of USD100,000 in the aggregate with respect to
contracts or agreements assumed by the Purchaser hereunder.
Approval means each authorisation, approval, consent, licence,
permit, permission, issued or granted by or with a Public
Authority in respect of the Business and the Assets.
Assets means the property, assets and rights as reflected in the
audited balance sheet of the Vendor as at the Accounting
Date and adjusted until Completion and further adjusted to
reflect the cancellation of any intercompany accounts all of
which are more particularly set out in Schedule 1.
Authorisation includes:
(a) any authorisation, approval, consent, licence, permit,
franchise, permission, notification, filing,
registration, lodgement, agreement, notarisation,
certificate, authority, resolution, direction,
declaration or exemption from by or with a Public
Authority; and
(b) in relation to anything which will be prohibited or
restricted in whole or part by law, the intervention or
other acts of a Public Authority within a specified
period after lodgement, any filing, registration or
notification.
Business has the same meaning as specified in Recital A.
Business Information means all information, know-how and
techniques (whether or not confidential and in whatever form
held) which in any way relates to:-
(a) all or any part of the business assets;
(b) any products manufactured and/or sold and/or services
rendered by the Business;
(c) any formulas, designs, specification, drawings, data,
manuals or instructions;
(d) the operations, management, administration or financial
affairs of the Business (including any business plans
or forecasts, information relating to future business
development or planning information relating to
litigation or legal advice); and
(e) the sale or marketing or any of the products
manufactured and/or sold and/or services rendered by
the Business, including but without limiting the
generality of the foregoing words, customer names and
lists, sales and marketing information including but
not limited to targets, sales and market shares
statistics, market surveys and reports on research.
Completion means the completion of all matters provided in
Clauses 6.2 and 6.3.1 on the Completion Date.
Completion Date means that date (in Malaysia) falling fourteen
(14) days after the satisfaction of all the conditions set
out in Clause 4.1 or such other date as may be mutually
agreed by the parties.
Computer Services Agreement means all arrangements and agreements
pursuant to which the Vendor, including any member of the
Vendor's Group provides any service to the computer system
to any third party without limitation to the agreements the
particulars of which are set out in Schedule 2.
Computer Software Licences means the computer software licences
held by the Vendor as listed in Schedule 2 together with the
benefit of all guarantees given to the Vendor in respect
thereof or relating thereto.
Consideration has the meaning as in Clause 2.2.
Cut Off Date means the date falling 6 months after the date of
this Agreement
Eltrax Guarantors means Eltrax International Inc, and Verso
Technologies, Inc..
Employees means those employees as set out in Schedule 3 who are
employed in the Business on the date of this Agreement in
accordance with Clause 9 and who are still employed by the
Vendor when the Purchaser's offer of employment is made
under Clause 9.2.
Employee's Entitlements has the same meaning as specified in
Clause 9.1.
Encumbrances means mortgages, charges, liens, pledges and other
encumbrances.
Equipment Sales and Software means all those contracts,
engagements or orders entered into Licence Agreements on or
by the Completion Date by or on behalf of the Vendor with
its customers for the sale, loan, hire or goods, equipment
or provision of services by the Vendor in connection with
and in the ordinary course of business which at the
Completion Date remains to be performed in whole or in part
by the Vendor including, without limitation, the generality
of the foregoing, those contracts which are set out in
Schedule 2.
Goodwill means the goodwill of the Vendor in connection with the
Business excluding the exclusive right for the Purchaser to
represent itself as carrying on the business in succession
to the Vendor under the name "Eltrax Hospitality", and/or
"Eltrax" and all other trade names and styles of the Vendor
including (but without limitation) the names "Eltrax
Hospitality" and "Eltrax".
Head Agreement has the meaning as defined in Recital D above.
Information means other than Retained Records, all stationery,
promotional material brochures, sales publications,
advertising material, terms of business and all other
written or printed materials issued solely in connection
with the Business and owned by the Vendor.
Office Lease means all those office leases as more particularly
set out in Schedule 6.
Public Authorities includes:
(a) any government in any jurisdiction, whether federal,
state, territorial or local;
(b) any minister, department, office, commission, delegate,
instrumentality, agency, board, authority or
organisation of any government or in which any
government is interested;
(c) any non-government regulatory authority; and
(d) any provider of public utility services, whether or not
government owned or controlled.
Receivables means accounts receivable, notes receivable and other
obligations appearing as assets on the books of the Vendor
and the Acquired Business Balance Sheet indicating moneys
owned to the Vendor in connection with the goods and service
supplied in the Business by or in respect of trade debtors
including (but without limitation) those trade debtors set
out in Schedule 7.
Retained Records means records and other documents of the Vendor
relating to the Business required to be maintained by the
Vendor by law.
Stock all unsold products and stock in trade, raw materials,
components and work in progress of the Business as at
Completion Date.
Taxation all forms of taxation arising from the Business and
Assets or attributable to the Vendor on or before the
Completion Date including :
(i) any charges, taxes, duties, levies or penalties on
income, profits, chargeable gains or development value
in land or interest in land or any other property or
documents or supplies or other transactions;
(ii) income tax, corporation tax, capital gains tax,
development tax, stamp duty, capital duty, customs and
other import duties, national insurance contributions,
general rates or other local rates and assessments;
(iii)any liability for sums equivalent to any such charges,
taxes, duties, levies or rates or for any related
penalties, fines or interest incurred thereby; and
(iv) any tax, charges, duty, fee, deduction or withholding
(including, but not limited to, any interest or
penalty),
which is assessed, levied, imposed or collected by any
Public Authority including, without limitation, stamp duties
payable under the Stamp Act, 1949.
Transferring Employees those Employees of the Vendor who accept
the Purchaser's offer of employment under Clause 10.2.
Transferring Employees' has the same meaning specified in Clause
10.3. Entitlement
USD means United States Dollar.
Vendor's Group means the holding company of the Vendor and all
the subsidiaries of such holding company.
Vendor's Warranties all statements of fact herein and the
representations and warranties given by the Vendor and
guaranteed by the Eltrax Guarantors set out in Schedule 4 in
this Agreement.
1.2 Interpretation
(a) headings and underlinings are for convenience only and do not affect
the interpretation of this Agreement;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) an expression importing a natural person includes any corporation or
other body corporate, partnership, association, Governmental Agency,
two or more persons having a joint or common interest, or any other
legal or commercial entity or undertaking;
(e) a reference to a party to a document includes that party's successors
and permitted assigns;
(f) any part of speech or grammatical form of a word or phrase defined in
this Agreement has a corresponding meaning;
(g) a warranty, representation, covenant or agreement on the part of two
or more persons binds them jointly and severally; and
(h) reference to any statute or statutory provision includes a reference
to that statute or statutory provision as from time to time amended,
extended or re-enacted and shall include all by-laws, instruments,
orders rules and regulations made thereunder.
2. SALE AND PURCHASE OF THE ASSETS
2.1 Sale and purchase
(a) Subject to the terms of this Agreement, the Vendor shall sell and the
Purchaser shall purchase the Assets and the Purchaser shall take over
the Agreed Liabilities at the Consideration and proceed with
Completion.
(b) The Assets shall be sold and transferred to the Purchaser free from
all Encumbrances whatsoever.
2.2 Consideration
The Consideration for the sale and purchase of the Assets, the
Acquired Business and the Agreed Liabilities shall be the Ringgit
Malaysia equivalent of United States Dollar Eighty Thousand
(USD80,000) only.
2.2.1 The Consideration payable for the sale by the Vendor of the Business
and the Assets shall be the sum equal to the aggregate to the values
of the Goodwill, the Fixture and Fittings, the Equipment Sales and
Software Licence Agreement, the Office Lease, the Computer Systems and
the Computer Service Agreements, the value of the Stocks as determined
in Clause 13.
2.2.2 The Consideration payable under this Agreement is payable in
accordance with the Head Agreement and as such the Consideration
payable to the Vendor shall be paid directly to the Eltrax Guarantors
by AremisSoft under the terms of the Head Agreement.
2.3 Payment of the Consideration
The Consideration under this Agreement shall be deemed paid and satisfied
upon payment of the Consideration by AremisSoft to the Eltrax Guarantors in
accordance with Clause 2.2.2 above and receipt by the Eltrax Guarantors of
the same shall constitute good discharge of the Purchaser's obligations
under this Clause 2.
2.4 Title and risk
Title to and risk in the Assets will pass to the Purchaser on delivery
(where the Assets are capable of delivery) or otherwise on Completion and
the Vendor shall not be liable to the Purchaser in any way whatsoever for
any loss or damage to the Assets howsoever occurring on or after Completion
and after delivery of the Assets.
3. EXCLUDED ASSETS AND LIABILITIES
There shall be excluded from the sale and purchase of the Business and
retained by the Vendor the following:-
(i) all statutory books, statutory records and common seals of the Vendor
and the Retained Records;
(ii) any amount recoverable by the Vendor in respect of taxation paid or
payable by the Vendor in connection with matters or events occurring
on or before the Completion Date;
(iii)the names "Eltrax Hospitality Group, Inc.", "Eltrax International,
Inc." and all other variations and/or derivations of the name
"Eltrax"; and
(iv) all other liabilities of the Vendor in relation to the Business
outstanding as at the Completion Date save for the Agreed Liabilities.
4. CONDITIONS PRECEDENT
4.1 The sale and purchase of the Business and the Assets and completion thereof
are conditional upon the following:-
(a) (Vendor's resolution) A resolution being passed at a general meeting
of the Vendor in form and substance satisfactory to the Purchaser
approving the sale of the Business and the Assets as contemplated
herein;
(b) (Purchaser's resolution) A resolution being passed at a general
meeting of the Purchaser in form and substance satisfactory to the
Vendor approving the purchase of the Assets from the Vendor and the
payment of the Purchase Price in accordance with this Agreement; and
(c) (Documents) The Vendor shall provide the Purchaser with the entire
list of customers of the Vendor (containing the names, addresses,
contact persons, contact numbers, details on delivery orders and any
other information reasonably required by the Purchaser in relation to
the Vendor's list of customers) and all documents reasonably requested
by the Purchaser.
4.2 If any of the conditions precedent set out in Clause 4.1 is not fulfilled
by the Cut Off Date, or such other time as the parties may mutually agree
in writing (unless and to the extent that the Purchaser waives such
condition precedent by notice in writing to the Vendor at any time), either
party may rescind this Agreement by written notice to the other party and
upon such rescission the provisions of Clause 4.7 in relation to the
consequences of rescission shall apply mutatis mutandis.
4.3 The assignment of the Office Lease is conditional (unless and to the extent
that the Purchaser waives such condition by notice in writing to the Vendor
at any time) upon the consent of the landlord to the assignment of the
Office Lease to the Purchaser ("the Consent") being obtained. The Vendor
has applied to the landlord for the Consent and shall keep the Purchaser
fully informed of the progress of such application. The Vendor will use its
best endeavours to obtain the Consent and satisfy any lawful and reasonable
requirements of the Landlord as a condition of obtaining the Consent.
4.4 The Vendor and the Purchaser shall use their best endeavours and shall
provide all information, documents and assistance as shall be reasonably
required to satisfy the conditions precedent set out in Clause 4.1.
4.5 If either party becomes aware that a condition precedent set out in Clause
4.1 is satisfied or is incapable of being satisfied, it shall, within ten
(10) days of receipt of the confirmation of the same, notify the other
party in writing.
4.6 Upon satisfaction of all the Conditions to the satisfaction of the
Purchaser, this Agreement shall become unconditional
4.7 Unless otherwise agreed by the parties, upon the rescission or termination
of this Agreement in accordance with this Clause 4 :
(a) each party shall return to the other party all documents and things
whatsoever which have been received by or on account of either party
pursuant to this Agreement;
(b) the Purchaser shall return all letters of consent obtained pursuant to
the satisfaction of the conditions precedent set out in Clause 4.1 and
transfer and re-assign to the Vendor all approvals and all rights,
titles and benefits to the Assets which may have been transferred or
assigned or issued by the Vendor to the Purchaser; and
(c) the Consideration and all whatsoever monies paid by AremisSoft to the
Eltrax Guarantors under this Agreement shall be refunded to AremisSoft
forthwith.
Thereafter, this Agreement shall cease to have any effect and shall
become null and void and neither of the parties shall have any further
claims against the other save and except for any antecedent breach.
5. OBLIGATIONS PENDING COMPLETION
5.1 Except where any prior written direction or consent of the Purchaser to the
contrary has been given to the Vendor and as from the date hereof and
pending Completion of this Agreement, the Vendor hereby undertakes that it
shall:-
(a) not hold or convene any general meeting which proposes or passes a
resolution which is prejudicial to this Agreement except to give
effect to this Agreement;
(b) use its best endeavours to maintain good business relations with the
customers of the Business for the purpose that on Completion, the
Purchaser may carry on the Business with as much continuity as
possible; and
(c) not do anything that may be prejudicial to this Agreement.
5.2 The Vendor shall not, after the execution of this Agreement, enter into any
agreement, transaction or arrangement whatsoever (whether conditional or
otherwise) to sell, dispose of, transfer, assign, convey or encumber the
Assets to any other party whomsoever.
5.3 The Vendor hereby undertakes and the Eltrax Guarantors hereby undertake
that they shall procure that each company in the Vendor's Group shall not:-
(a) use, in any way, for their own account or the account of any other
party, nor disclose to any third party confidential information
relating to the Business or any clients or customers of the Business
or any Assets or information which are the subject of this Agreement
save as may be required by law or which enters the public domain
(through no fault of the Vendor);
(b) publish any technical descriptions of such confidential information
referred to in Clause 5.3(a) above beyond those published and
authorised for disclosure by the Purchaser save as may be required by
law or which enters the public domain (through no fault of the
Vendor);
(c) for three (3) years following the Completion Date, either on its own
account or through any other person anywhere within Malaysia unless
otherwise authorised by the Purchaser in writing:
(ci) solicit, interfere with nor endeavour to entice away from the
Purchaser any person who is now or has during the last two (2)
years preceding the Completion Date been a client or customer or
employee of the Vendor in relation to the Business; and
(cii) participate in the ownership, management, operation, or control
of, nor have any financial interest in or aid or knowingly assist
anyone else, in the conduct of any business which is similar to
or is in competition (whether directly or indirectly) with the
Business.
6 COMPLETION
6.1 Place for Completion
Completion will take place on the Completion Date at the offices of the
Purchaser at a time to be agreed by the parties.
6.2 Purchaser's Obligations at Completion
At Completion, the Purchaser shall deliver to the Vendor the
resolutions of the board of the Purchaser approving the entry into this
Agreement.
6.3 Vendor's obligations at Completion
6.3.1 At Completion and simultaneously with the delivery of the items set
out in Clause 6.2, the Vendor shall transfer the Business and the
Assets to the Purchaser for the Purchaser to carry on the Business and
shall place the Purchaser in effective possession and control of the
Assets and shall deliver the following to the Purchaser
(a) (Delivery of Assets) All of the Assets, title to which is capable
of passing by delivery, at the places where they are located;
(b) (Executed Transfers) Duly executed (and where applicable,
registrable) transfers, assignments or novations of Assets which
the Purchaser reasonably requires to effectively register or
render the Purchaser as the owner of the Assets together with all
deeds of release in respect of all charges, mortgages, debentures
and other security interests created by the Vendor or to which
any of the Assets are subject in terms which are satisfactory to
the Purchaser;
(c) (Books and Records) All books records and other documents of the
Business (other than records required by law to be kept or
maintained by the Vendor after Completion, in which event the
Vendor shall deliver certified true copies of such records to the
Purchaser);
(d) (Title Documents) All documents of title and other ancillary
documents relating to the Assets and in the case where the
transfer of the any of the Assets which are not capable of
passing by delivery are concerned, transfer shall take place upon
registration of the Purchaser as the owner of the said Assets;
(e) (Assignment of Office Lease) The assignment of the Office Lease
in favour of the Purchaser in the form and substance reasonably
acceptable to the Purchaser or the Purchaser's Solicitors and the
landlord's consent to the assignment duly endorsed thereon;
(f) (Business Information and Information) The Business Information
and Information relevant to the Business;
(g) the Computer Software Licenses and the Computer System
Agreements;
(h) the Equipment Sales and Software Licence Agreements; and
(i) all such other documents as shall be reasonably necessary or
appropriate for Completion.
6.3.2 The Vendor hereby agrees and undertakes to execute all documents,
perform all acts and deliver to the Purchaser on Completion all such
documents as may be required by the Purchaser to:
(i) obtain all Authorisations from any Public Authorities required in
respect of the transfer of the Business and the Assets and for
the purposes of carrying on the Business;
(ii) effectively vest title to the Assets in the Purchaser;
including, without limitation, certified true copies of the
resolutions of the Vendor.
6.3.4 The Purchaser shall not be obliged to complete the purchase of any of
the Assets unless the purchase of all the Assets is completed in
accordance with this Agreement (and completion of the Head Agreement
is effected).
6.3.5 The Vendor undertakes with the Purchaser to allow the Purchaser on
reasonable notice access to or copies of such books and records of the
Business relating to the period before Completion as the Purchaser may
reasonably require in order to comply with any legal obligations
imposed on the Purchaser after Completion and the Vendor hereby
undertakes to provide such reasonable assistance to the Purchaser as
shall be agreed between the Purchaser and the Vendor after the
Completion Date to facilitate the transition of the Business to the
Purchaser including if requested by the Purchaser attending meetings
with customers of the Business.
7. COLLECTION OF RECEIVABLES AND AGREED LIABILITIES
7.1 The Vendor shall assign all Receivables to the Purchaser on the Completion
Date by executing a Deed of Assignment in the form and substance agreeable
to the Purchaser or the Purchaser's Solicitors.
7.2 Upon Completion, the Purchaser shall have the right and authority to
collect all Receivables transferred to the Purchaser pursuant to this
Agreement and to endorse the name of the Vendor on any cheques received on
account of any such Receivables. The Vendor shall promptly transfer and
deliver to the Purchaser any cash, cheques or other property which the
Vendor may receive in respect of such accounts after Completion. The Vendor
will cooperate with the Purchaser, at its reasonable request, on and after
Completion in endeavouring to collect all Receivables transferred to the
Purchaser by furnishing, at the Purchaser's costs and expense, such
information, testimony and other assistance as the Purchaser may reasonably
require in connection with collection of such accounts. Payments received
from customers in respect of any Receivables shall be applied to the oldest
outstanding Receivable from such customer, unless such customer, acting on
its own volition, specifically identifies such payment to a particular
Receivable, in which case such payment shall be applied to the specified
Receivable. The Purchaser hereby agrees not to coerce or suggest, directly
or indirectly, in any way, to any customer that they identify any payment
to a particular Receivable, and in the event of any such coercion or
suggestion, the Purchaser agrees to make a credit to the Vendor, for any
Receivable put to the Vendor as provided below, in any amount equal to five
times the amount of that Receivable. The Purchaser shall use commercially
reasonable efforts to collect the Receivables (but shall not be obligated
hereunder to bring any action to collect any Receivables) but if it shall
fail to collect the full amount of any such Receivable within 180 days
after the Completion Date, the Purchaser shall have the right to put such
Receivable to the Vendor whereupon the Vendor shall repurchase such
Receivable from the Purchaser at the face amount thereof; provided that the
Vendor shall not have any obligation to repurchase any Receivables until
the aggregate amount of Receivables which the Purchaser has a right to, and
has elected to, put to the Vendor exceeds the amount of any reserve for
such Receivable reflected in the Acquired Business Balance Sheet and then,
only to the extent of such excess. Any such put right must be exercised on
or before 360 days after Completion Date unless extended in writing by the
Vendor. Notwithstanding the foregoing, the Purchaser shall not have the
right to put to the Vendor any Receivable which the Purchaser has
compromised or settled or agreed to accept payment at less than the face
amount thereof in full satisfaction thereof or otherwise given a credit in
respect thereof. Upon a put of a Receivable to the Vendor, the Purchaser
will cooperate with the Vendor, at its reasonable request, in endeavouring
to collect all Receivables put to the Vendor by furnishing, at the Vendor's
costs and expense, such information, testimony and other assistance as the
Vendor may reasonably require in connection with collection of such
Receivables.
7.3 The Vendor and Verso shall be solely responsible for and in the ordinary
course of business shall discharge all liabilities of the Vendor in
relation to the Business and which are outstanding as at the Completion
Date other than the Agreed Liabilities and notwithstanding Completion,
shall be responsible for all debts payable by and claims accruing or
outstanding against it in relation to the Business as at the Completion
Date (save for the Agreed Liabilities). In relation to any claims by a
third party, the Vendor shall promptly give the notice thereof to the
Purchaser and will not take any steps which might reasonably be expected to
damage the commercial interests of the Purchaser without prior consultation
with and the approval of the Purchaser which approval shall not be
unreasonably withheld.
7.4 The Purchaser shall be responsible for the discharge of the Agreed
Liabilities in accordance with their terms after Completion without
recourse to the Vendor.
7.5 The Purchaser shall fully and effectively indemnify and keep indemnified
the Vendor on demand against all demand, claims, liabilities, costs and
expenses properly incurred by it in relation to the Agreed Liabilities.
8. APPORTIONMENTS
8.1 All rents, rates, gas, water, electricity and telephone charges and other
outgoings relating to or are payable in respect of the Business up to the
Completion Date shall be borne by the Vendor and as from the Completion
Date shall be borne by the Purchaser and all rents, royalties and other
periodical payments receivable in respect of the Business after the
Completion Date shall belong to and be payable to the Purchaser. Such
outgoings and payments receivable shall if necessary be apportioned
accordingly, provided that any such outgoings or payments receivable which
are referable to the extent of the use of any property or right shall be
apportioned according to the extent of such use.
8.2 Where any amounts fall to be apportioned under this Agreement, the Vendor
shall provide the Purchaser will full details of the apportionments,
together with supporting vouchers or similar documentation and in the
absence of dispute, the appropriate payment shall be made by or to the
Vendor forthwith. If the amount of the apportionment is in dispute, the
provisions of Clause 8.3 shall apply for resolving the dispute and the
amount determined in accordance with that clause shall be paid within
fourteen (14) days of the determination, together with interest calculated
on a daily basis (as well after as before judgement) from the Completion
Date until the date of actual payment at the rate of two percent (2%) per
annum above the current Base Lending Rate (as published from time to time)
of Malayan Banking Berhad.
8.3 Any dispute with respect to the determination of the value of any
apportionments under Clause 8.2 shall be referred for final settlement to a
firm of chartered accountants nominated jointly by the Vendor and the
Purchaser or, failing such nomination, within fourteen (14) days after
request by either the Vendor or the Purchaser, nominated at the request of
either of them by the Chairman of the Malaysian Institute of Accountants.
The accountants shall be entitled to call for and inspect the working
papers of the Vendor's auditors and such other documents as they may
reasonably consider necessary. In making their determination, the
accountants shall act as arbitrators. Their decision shall (in the absence
of manifest error) be final and binding on the parties and their fees shall
be borne and paid by the Vendor and the Purchaser in such proportions as
the accountants may determine.
8.4 The Vendor shall grant to the Purchaser the right during normal business
hours to inspect, on reasonable notice, the Retained Records and all the
records relating to the Business which the Purchaser considers necessary to
consider such apportionments provided that the Purchaser shall keep the
same confidential and not divulge or disclose the same save as required by
law.
9. EMPLOYEES
9.1 Vendor's obligations to Employees
The Vendor recognises that it is the Vendor's obligations at law to pay to
the Employees all amounts due to them as at Completion (including, without
limitation, redundancy, accrued salary, wages, sales commissions, bonuses,
annual leave, sick leave, public holiday work allowances, rest day
allowances, overtime allowances and any accrued entitlements to long
service leave) ("the Employee's Entitlements") and hereby expressly
undertakes to discharge all of the Employee's Entitlements on or prior to
Completion.
9.2 Purchaser's offer of employment
The Purchaser shall offer in writing to all the Employees employment with
the Purchaser and such written offer of employment shall take effect from
Completion on terms and conditions no less favourable than those enjoyed by
the Employees as at the Completion Date.
9.3 Transferring Employees
The Vendor recognises that it is the Vendor's obligation at law to pay to
the Transferring Employees on the Completion Date:
(a) accrued salary, wages, sales, commissions, allowances and bonuses
as at that date; and
(b) any entitlements for accrued but untaken annual leave as at that
date other than those which the Transferring Employees agree to
be transferred for their benefit under their employment with the
Purchaser.
(together, "Transferring Employees' Entitlements")
and hereby expressly undertakes to discharge, at its own cost and
expense, all of the Transferring Employees' Entitlements on or prior
to Completion.
9.4 Purchaser's obligations for accruing entitlements
The Purchaser shall with effect from Completion assume liability for the
long service leave (if any), annual leave, Employment Provident Fund
contributions, sick leave and any other entitlements of the Transferring
Employees.
9.5 Employment Provident Fund
(a) As at Completion, the Vendor shall ensure that all contributions
have been made to the Employment Provident Fund and the Social
Security Organisation in respect of each Employee for the period
up to and including Completion.
(b) On Completion, the Vendor and the Purchaser shall immediately
notify the Employment Provident Fund of the termination of all
Employees and re-employment of the Transferring Employees in
accordance with the provisions of the Employment Provident Fund
Act 1991.
(c) On Completion, the Vendor and the Purchaser shall immediately
notify the Social Security Organisation of the termination of all
Employees and re-employment of the Transferring Employees in
accordance with the provisions of the Employees Social Security
Act 1969.
9.6 Vendor's Indemnity concerning Employees
(a) The Vendor shall indemnify the Purchaser against all claims and
liabilities of any nature (including without limitation costs,
whether or not the subject of a court order) brought against or
suffered by the Purchaser in connection with or incidental to the
Employees' cessation of employment with the Vendor. The Vendor
may, at its own cost, contest any such claim or liability and the
Purchaser shall render reasonable assistance to the Vendor to do
so.
The Vendor shall reimburse the Purchaser for all costs and
expenses, whether direct or indirect, that the Purchaser may
incur in assisting the Vendor in any such contest.
(b) The Vendor shall indemnify the Purchaser against all claims and
liabilities of any nature (including without limitation costs,
whether or not the subject of a court order) brought against or
suffered by the Purchaser in connection with or incidental to any
claim by any Employee or any other person relating to loss,
damage or other injury to any person incurred prior to Completion
including without limitation any breach of the Occupational
Safety and Health Act 1994 whether or not disclosed to the
Purchaser on or prior to Completion.
9.7 Indemnity
Each party hereto shall and hereby agrees and undertakes to indemnify and
keep indemnified the other party against all claims and proceedings which
may be made or taken against and all losses, damages, costs and expenses
which may be incurred by the other party as a result of any breach or
non-compliance by the defaulting party of its covenants hereunder.
9.8 General Co-ordination
The parties shall promptly inform and keep each other informed of any
matter in relation to or in connection with this Clause 9.
10 VENDOR'S WARRANTIES /INDEMNITIES
10.1.Except as expressly provided in the Vendor's Warranties to the contrary,
the Vendor gives the Vendor's Warranties in favour of the Purchaser as at
the date of this Agreement and as at Completion. The Vendor hereby warrants
to the Purchaser that the information and statements set out in the
Vendor's Warranties are true, accurate and correct in all respects at the
date of this Agreement and will continue to be so up to and including
Completion. To this effect, the Vendor's Warranties shall be deemed to be
repeated during this period as if they had been entered into afresh during
the said period in relation to the facts and circumstances then existing.
10.2 The Vendor acknowledges and agrees that the Purchaser has entered into this
Agreement in reliance on the Vendor's Warranties. The Vendor's Warranties
are not affected or limited in any way by information gathered by the
Purchaser, its advisers and representatives.
10.3 Each of the Vendor's Warranties is separate and is to be construed
independently of the others and is not limited by reference to any of the
others.
10.4 The Vendor indemnifies and shall keep the Purchaser indemnified against all
losses, damages, costs, expenses and outgoings which the Purchaser may
incur or be liable for in respect of any claim, demand, liability, action,
proceedings or suits arising out of or in connection with :
(a) a breach of a Vendor's Warranty;
(b) any Vendor's Warranty not being true and correct in all respects; and
(c) any Vendor's Warranty being misleading in any respect.
For purposes of the indemnification pursuant to this Clause 10.4, the
procedures as provided in Clause 11.7 below shall apply.
10.5 (a) The Vendor hereby warrants that the Equipment Sales and Software
Licence Agreements and Computer Service Agreements as disclosed in
Schedule 2 are complete and that there are no other Equipment Sales
and Software Licence Agreements and Computer Service Agreements or any
other contracts whatsoever entered into by the Vendor in relation the
Acquired Business which has not been disclosed by the Vendor in this
Agreement.
(b) In the event and at any time subsequent to the execution of this
Agreement, it is discovered by any party that a contract or agreement
entered into by the Vendor in relation to the Acquired Business was
not disclosed and assigned to the Purchaser under this Agreement, the
party who discovered the contract or agreement shall immediately
notify all parties of such contract or agreement. At the Purchaser's
written request and at the Vendor's sole costs and expense, the Vendor
shall do all that is necessary to effectively transfer the rights,
titles and interests of such contract or agreement to the Purchaser
upon such terms and conditions to be agreed by the Purchaser.
10.6 Subject to the provisions of Schedule 5, the rights and remedies of the
Purchaser in respect of any breach of the Vendor's Warranties shall not be
affected by Completion, by the Purchaser failing to exercise or delaying
the exercise of any of its rights or remedies or by any other event or
matter whatsoever;
10.7 Where any Vendor's Warranty refers to awareness or knowledge information
and belief of the Vendor, the Vendor undertakes that it has made reasonable
and proper enquiry into the subject matter of that Vendor's Warranty save
where otherwise stated.
10.8 If the Vendor pays to the Purchaser an amount in respect of a breach of the
Vendor's Warranties and the Purchaser subsequently recovers from a third
party a sum which is in respect of that breach, the Purchaser shall
forthwith pay to the Vendor so much of the amount paid by the Vendor as
does not exceed the sum recovered from the third party less all reasonable
costs, charges and expenses incurred by the Purchaser in recovering that
sum from the third party and any applicable tax.
10.9 The liability of the Vendor in respect of the Vendor's Warranties shall be
subject to the provisions of Schedule 5.
10.10 Notwithstanding Completion, the Vendor's Warranties, indemnities and
undertakings given by the Vendor shall continue thereafter to subsist for
so long as may be necessary for the purpose of giving effect to each and
every one of those clauses in accordance with the terms thereof.
10.11 Notwithstanding any other provisions in this Agreement, the indemnities
contained in this Agreement shall survive Completion.
10.12 If the Vendor shall become aware, or reasonably ought to be aware, of any
event which occurs or matter which arises which results or may result in
any of the Vendor's Warranties being unfulfilled, untrue, misleading or
incorrect, the Vendor shall immediately notify the Purchaser in writing
fully thereof.
10.13 After the Completion Date, the Purchaser shall meet and discharge all
claims for fulfilment of warranties given by the Vendor in relation to the
Business to customers which have been disclosed to the Purchaser or are
normal warranties to be given in the ordinary course of the Business which
arise after that date in respect of products sold or supplied or services
provided by the Vendor before the Completion Date and the Purchaser shall
indemnify the Vendor against all reasonable costs and liabilities incurred
by the Vendor under such warranties.
11. CLAIMS AND LIABILITIES
11.1 The Vendor shall be liable for all the Agreed Liabilities in respect of or
attributable to the period prior to the Completion Date, notwithstanding
the Agreed Liabilities may arise at any time after the Completion Date.
11.2 The Vendor hereby undertakes and warrants to the Purchaser, and shall do
all things required to ensure, that the Purchaser shall not at any time be
required to pay any moneys or incur any cost, expenses or outgoings in
respect of the Agreed Liabilities in respect of or attributable to the
period prior to the Completion Date.
11.3 The Vendor hereby irrevocably and unconditionally indemnifies and shall
keep the Purchaser indemnified against all losses, damages, costs, expenses
and outgoings which the Purchaser may incur or be liable for in connection
with the Agreed Liabilities in respect of or attributable to the period
prior to the Completion Date, notwithstanding the Agreed Liabilities may
arise at any time after the Completion Date.
11.4 Save for the Agreed Liabilities and the other obligations of the Purchaser
assumed hereunder, the Vendor hereby undertakes to indemnify and keep
indemnified the Purchaser from and against any or all of the following:-
(a) losses, costs, liabilities and expenses arising out of or in
connection with the ownership or carrying on of the Business arising
or relating to all periods up to the Completion Date and any and all
actions suits proceedings, claims, demands, assessments, awards and
judgements in respect thereto (save in respect of work in progress and
unfinished products and any steps required to be taken by the
Purchaser in respect of the Receivables under Clause 7.2); and
(b) liabilities arising under or in respect of all contractual commitments
entered into by the Vendor in respect of the Business (save for the
Equipment Sales and Software Licence Agreements and Computer Service
Agreements, the benefit of which is to be assigned to the Purchaser in
accordance with the terms of this Agreement.
11.5 The Purchaser covenants with the Vendor that it will pay, satisfy,
discharge and fulfil all costs, claims, expenses, liabilities, obligations
and undertakings whatsoever relating to the Business in respect of any
period commencing on the Completion Date and will indemnify and hold
harmless the Vendor in respect of the same.
11.6 This Clause shall survive Completion.
11.7 Procedures. If any proceedings are instituted or any claim or demand is
asserted by any person not a party to this Agreement in respect of which
the Purchaser may seek indemnification pursuant to this Clause 11, the
indemnified party shall promptly cause written notice (the "Notice") of the
assertion of any such claim or demand to be made to the indemnifying party;
provided, however, that the failure of the indemnified party to give prompt
Notice shall not relieve the indemnifying party of its obligations
hereunder unless, and only to the extent that, such failure caused the
damages for which the indemnifying party is obligated to be greater than
they would have been had the indemnified party given the indemnifying party
prompt Notice hereunder. Except as otherwise provided herein, the
indemnifying party shall have the right, at its option and expense, to
defend against, negotiate, or settle any such claim or demand, and if the
indemnifying party exercises that option, the indemnifying party shall not
be liable for the fees and expenses incurred after the date the
indemnifying party notifies the indemnified party of such exercise by a
counsel employed by the indemnified party. An indemnifying party may not
settle any such claim or demand without the written consent (which consent
shall not be unreasonably withheld, conditioned or delayed) of the
indemnified party unless such settlement requires no more than a monetary
payment for which the indemnified party is fully indemnified or involves
other matters not binding upon the indemnified party. An indemnifying party
shall not be liable for any settlement of any such claim or demand effected
without its prior written consent (which consent shall not be unreasonably
withheld, conditioned or delayed). In the event that the indemnifying party
shall fail to respond within ten (10) days after the giving of the Notice,
then the indemnified party may retain counsel and conduct the defense
thereof as it may, in its sole discretion, deem proper, at the sole cost
and expense of the indemnifying party. The parties agree to cooperate fully
with each other in connection with the defense, negotiation or settlement
of any such legal proceeding, claim or demand.
11.8 Cooperation. The Purchaser shall, and shall cause its accountants, counsel,
employees and other representatives to, reasonably cooperate with the
Vendor and the Eltrax Guarantors in connection with any and all disputes
which may arise in connection with any and all liabilities other than the
Agreed Liabilities (the "Excluded Liabilities"). The Vendor and the Eltrax
Guarantors shall, and shall cause its accountants, counsel, employees and
other representatives to, reasonably cooperate with the Purchaser in
connection with any and all disputes which may arise in connection with any
and all of the Agreed Liabilities. Without limiting the generality of the
foregoing, the Purchaser shall cause its accountants, counsel, employees
and other representatives, to make available to the Vendor or the Eltrax
Guarantors, their employees, work papers, documents and other information
and materials reasonably requested by the Vendor or the Eltrax Guarantors
in connection with the Excluded Liabilities and the Vendor or the Eltrax
Guarantors shall cause its respective accountants, counsel, employees and
other representatives, to make available to the Purchaser, its employees,
work papers, documents and other information and materials reasonably
requested by the Purchaser in connection with the Agreed Liabilities. The
party requesting cooperation (the Vendor or the Eltrax Guarantors in
connection with the Excluded Liabilities or the Purchaser in connection
with the Agreed Liabilities) shall pay all out-of-pocket expenses
reasonably incurred and paid by the cooperating party to third parties in
connection with such cooperative efforts; provided, however, that the party
requesting cooperation shall not be obligated to reimburse the cooperating
party for the time spent by any of their or their affiliates' employees in
connection with such cooperative efforts.
11.9 Initial Limitation. Other than the rights to defend and hold harmless with
respect to third party claims, neither party shall have any liability for
indemnification pursuant to Clauses 11.4 above, until the aggregate amount
of all losses suffered by the party seeking indemnification with respect to
such matters exceeds the sum of USD100,000 equivalent provided that this
limitation shall not apply to indemnification by the Vendor pursuant to
Clause 10.4.
11.10 Aggregate Limitation. The aggregate liability, for either party
(calculated on a consolidated basis for the entire group under the Eltrax
Guarantors or AremisSoft), for indemnification pursuant to Clause 11.4
above, shall not exceed the sum of ten million united states dollars
(USD10,000,000) provided that this limitation shall not apply to
indemnification by the Vendor pursuant to Clause 10.4.
11.11 Available Insurance Limitation. The amount of any recovery for
indemnification pursuant to Clause 11.3 or 11.4 above, shall be determined
after taking into account all amounts to which the indemnified party is
entitled and actually receives under the provisions of all insurance
policies with third parties (i.e. actual insurance policies and not
self-insurance or retention programs) in existence prior to Completion Date
(subject to offset for any increase in premiums attributable to such losses
or payments made in respect of such losses). The parties agree to use
reasonable efforts to collect amounts available under any such insurance
policies.
11.12 Balance Sheet Adjustment Limitation. With respect to any claims for
indemnification pursuant to Clause 10.4 and/or this Clause 11 in respect of
any breach of warranty or representation concerning the Acquired Business
Balance Sheet, the amount of any recovery by the Purchaser shall be reduced
by any Balance Sheet Gains (as defined below). Upon any such claims for
recovery, or upon reasonable request of the Vendor after a claim has been
made by the Purchaser hereunder, the Purchaser shall deliver to the Vendor
a report identifying Balance Sheet Gains or will represent in writing that
there are no Balance Sheet Gains. For purposes of this Agreement, the term
"Balance Sheet Gains" means any realization with respect to any current
asset in access of its value as reflected on the Acquired Business Balance
Sheet (as adjusted to account for any ordinary course changes thereto
through Completion), or any positive realization with respect of any
liability reflected on the Acquired Business Balance Sheet (as adjusted to
account for any ordinary course changes thereto through Completion) (in
that the Purchaser is actually responsible for any amount less than that
reflected thereon).
11.13 Application of Indemnification Provisions. The parties hereby agree that
the limitations of the indemnification provisions contained in Clauses
11.9, 11.10, 11.11 and 11.12 above do not apply to the parties' rights and
obligations to defend and hold harmless with regard to third party claims,
pursuant to Clause 11.4 above. Save for the above, the parties hereby
further agree that the limitations of the indemnification provisions
contained in Clauses 11.9, 11.10, 11.11, and 11.12 shall apply on a
collective basis to all agreements for indemnification entered into in
respect of each of the Related Transactions as defined in the Head
Agreement.
12. TITLE
12.1 The Eltrax Guarantors shall procure that they and the Vendor shall take all
necessary steps and generally co-operate fully with the Purchaser to ensure
that the Purchaser obtains the full benefit of the Business and the Assets
and shall execute such documents and take such other steps as are
reasonably necessary or appropriate for vesting its rights and interests in
the Business and the Assets in the Purchaser and as requested by the
Purchaser.
12.2 In so far as the Assets comprise the benefit of the Equipment Sales and
Software Licence Agreement or Computer Service Agreements or the Computer
Software Licenses or Computer arrangements or any other contracts in
respect of the Acquired Business which cannot be effectively assigned to
the Purchaser without the consent of a third party or except by agreement
or novation:-
12.2.1 the Vendor and the Purchaser shall use all reasonable endeavours to
obtain such consent in order to procure a novation;
12.2.2 unless and until such consent is obtained or any such other contract
is novated the Purchaser shall for its own benefit and to the extent
that such Equipment Sales and Software Licence Agreements of Computer
Service Agreements or Computer Software Licenses or such other
contracts in respect of the Acquired Business (as the case may be)
permit perform on behalf of the Vendor and the Vendor shall hold the
relevant Equipment Sales and Software Licence Agreement or Computer
Service Agreement or Computer Software Licence or such other contracts
in respect of the Acquired Business as bare trustee for the Purchaser
for consideration and shall sub-contract any work arising from such
contracts to the Purchaser to the intent that the Vendor does not
benefit from such contracts;
12.2.3 if and to the extent that any such contract incorporates a
prohibition against holding on trust or any agency arrangement,
pending the obtaining of such consents, the Vendor and the Purchaser
will make such other arrangements between themselves as may be
permissible to implement so far as possible the effect of the transfer
of the benefit and the burden of such contracts to the Purchaser to
the intent that the Vendor does not benefit from such contracts.
12.3 The Purchaser shall indemnify and keep indemnified the Vendor against all
costs, claims, liabilities and expenses arising out of the Equipment Sales
and Software Licence Agreement or Computer Service Agreements (but not in
the event that the same arises from a breach or default by the Vendor) or
the Computer Software Licence after the Completion Date.
13. STOCKS
13.1 The parties shall jointly procure that as soon as practicable and in any
event within 21 days of the Completion Date the value of the Stock as at
the Completion Date is determined upon the same basis as for the purposes
of the Acquired Business Balance Sheet, but reduced by the amount of any
prepayment or deposits received by the Vendor or payable to it under the
Equipment Sales and Software Licence Agreements prior to the Completion
Date;
13.2 Any dispute with respect to the determination of the value of the Stocks
shall be referred for final settlement to a firm or chartered accountants
nominated jointly by the Vendor and the Purchaser or, failing such
nomination within fourteen (14) days, nominated, at the request of either
of the Purchaser or the Vendor, by the Chairman of the Malaysian Institute
of Accountants. The accountants shall be entitled to call for and inspect
the working papers of the Vendor's auditors and such other documents as
they may reasonably consider necessary. In making their determination, the
accountants shall act as experts and not as arbitrators. Their decision
shall (in the absence of manifest error) be final and binding on the
parties and their fees shall be borne and paid but the Vendor and the
Purchaser in such proportions as the accountants may determine.
13.3 The amounts agreed or determined under the foregoing sub-clause shall (to
the extent agreed) be paid to the Vendor forthwith upon their being agreed
and (as to any balance) upon the amount being determined.
13.4 The Vendor shall be liable for payment of all sums which were outstanding
at the Completion Date in respect of items included in the Stock.
14. GUARANTEES
Guarantee by Eltrax Guarantors
14.1 In consideration of the Purchaser entering into this Agreement the Eltrax
Guarantors hereby jointly and severally guarantee the due and full
performance by the Vendor of its duties, obligations and undertakings under
this Agreement and hereby undertake to the Purchaser that if the Vendor
shall fail in any respect to fulfil or shall be in breach of any of its
duties, obligations, warranties, representations, covenants or
undertakings, the Purchaser shall be at liberty to act and the Eltrax
Guarantors shall be liable as if they were the party principally bound
thereby.
14.2 In consideration as aforesaid the Eltrax Guarantors hereby covenant with
the Purchaser that they will indemnify and at all times hereafter keep the
Purchaser fully indemnified against all losses damages, costs and expenses
which may be incurred or suffered by it by reason of any default on the
part of the Vendor in performing and observing the terms and conditions on
its party herein contained.
14.3 The Eltrax Guarantors hereby agree that any duty, obligation, covenant,
warranty, agreement or undertaking expressed in this Agreement or in the
Schedules annexed to this Agreement to be a duty, obligation, covenant,
warranty, agreement or undertaking of the Vendor shall be and be construed
as a duty, obligation, covenant, warranty, agreement and undertaking of the
Eltrax Guarantors and the Vendor jointly and severally.
14.4 The guarantees, covenants and agreements contained in this clause shall be
a continuing security and shall not be effected by any time or indulgence
granted by the Purchaser to the Vendor.
14.5 Each reference herein to the Eltrax Guarantors shall be deemed to include
their respective successors all of whom shall be bound by the provision
hereof.
Guarantee by AremisSoft
14.6 In consideration of the Vendor entering into this Agreement, AremisSoft
hereby guarantee the due and full performance by the Purchaser of its
duties, obligations and undertakings under this Agreement and hereby
undertake to the Vendor that if the Purchaser shall fail in any respect to
fulfil or shall be in breach of any of its duties, obligations, warranties,
representations, covenants or undertakings, the Vendor shall be at liberty
to act and AremisSoft shall be liable as if it was the party principally
bound thereby.
14.7 In consideration as aforesaid AremisSoft hereby covenant with the Vendor
that it will indemnify and at all times hereafter keep the Vendor fully
indemnified against all losses damages, costs and expenses which may be
incurred or suffered by it by reason of any default on the part of the
Purchaser in performing and observing the terms and conditions on its party
herein contained.
14.8 AremisSoft hereby agree that any duty, obligation, covenant, warranty,
agreement or undertaking expressed in this Agreement or in the Schedules
annexed to this Agreement to be a duty, obligation, covenant, warranty,
agreement or undertaking of the Purchaser shall be and be construed as a
duty, obligation, covenant, warranty, agreement and undertaking of
AremisSoft.
14.9 The guarantees, covenants and agreements contained in this clause shall be
a continuing security and shall not be effected by any time or indulgence
granted by the Vendor to the Purchaser.
14.10 Each reference herein to AremisSoft shall be deemed to include its
successors all of whom shall be bound by the provision hereof.
15. GENERAL
15.1 Notices
(i) All notices and documents required to be given under this Agreement
and all other communications between the parties hereto with respect
to this Agreement shall be in writing and may be sent by hand,
registered post , courier or other postal service, telex or facsimile
to the following addresses or numbers (or to such other addresses or
numbers as notified by the parties hereto in accordance with this
Clause):
if to the Purchaser : c/o Messrs. Zaid Ibrahim & Co.,
Level 19, Menara Milenium,
Jalan Damanlela,
Pusat Bandar Damansara,
50490 Kuala Lumpur
Malaysia.
Facsimile No. : 03-2544888 / 03-2544666
if to the Vendor : c/o Messrs. Lee Ong & Kandiah
Suite 2.07 - 2.10
2nd Floor, Wisma Mirama,
Jalan Wisma Putra,
50460 Kuala Lumpur
Malaysia.
Facsimile No. : 03-2447336 / 03-2448760
and :-
(a) must be in legible writing and in English;
(b) can be relied on by the recipient and the recipient will not
be liable to any other person for any consequences of that
reliance if the recipient believes it to be genuine, correct
and duly authorised by the sender; and
(c) may be given by solicitors on behalf of either party.
(ii) Any notice or document or communication may be given by
solicitors on behalf of either party and any notice or
communication given pursuant to this Agreement shall be deemed to
be served and received by the addressee:
(a) if delivered by hand, at the time of delivery; or
(b) if sent by registered post, courier or other postal service,
within forty eight (48) hours of despatch or posting; or
(c) if transmitted by telex or facsimile, the business day
(being a day when banks are open for business in Kuala
Lumpur) following transmission by telex or by facsimile.
15.2 Further Assurances
Each party must do all things necessary (including, but not limited to,
executing all documents) to give effect to this Agreement.
15.3 Entire Agreement
This Agreement contains the entire agreement of the parties with respect to
its subject matter and supersedes all previous agreements and
understandings, both written and oral, between the parties, with respect to
the subject matter hereof, except as specifically provided otherwise or
referred to herein, so that no such external or separate agreements
relating to the subject matter of this Agreement (1) shall have any effect
or be binding, unless the same is referred to specifically in this
Agreement or is executed by the parties after the date hereof; (2) is
intended to confer upon any other person any rights or remedies hereunder;
(3) shall be assigned by operation of law or otherwise except for
assignments of all or any part of the rights of the Purchaser hereunder,
which may be freely assigned by the Purchaser so long as the obligations of
the Purchaser under this Agreement remain obligations of, or their
performance is unconditionally guaranteed (which must be a guarantee of
performance, and not just collection, with no duty on the part of Vendor or
the Eltrax Guarantors to pursue the assignee first) by, the Purchaser. This
Agreement may be executed in two or more counterparts which together shall
constitute a single agreement and facsimile signatures shall have equal
dignity with original signatures for all purposes.
15.4 Variation
A variation of any term of this Agreement must be in writing and signed by
the parties.
15.5 Assignment
The rights and obligations of each party under this Agreement are personal.
They cannot be assigned, charged or otherwise dealt with, and no party
shall attempt or purport to do so, without the earlier written consent of
all the parties save that the Purchaser may at any time assign all or part
of the Assets.
15.6 Waivers
(a) Waiver of any breach of this Agreement or of any right, power,
authority, discretion or remedy arising upon a breach of or default
under this Agreement, must be in writing and signed by the party
granting the waiver. Any waiver granted by any party pursuant to this
Clause shall not constitute a waiver of any subsequent breach of the
same or any other terms of conditions of this Agreement.
(b) A breach of or default under this Agreement is not waived by any
failure or delay in exercising or partial exercise of any right,
power, authority, discretion or remedy under this Agreement.
(c) A right, power, authority, discretion or remedy created or arising
upon a breach of or default under this Agreement is not waived by any
failure or delay in the exercise, or a partial exercise, of that or
any other right, power, authority, discretion or remedy.
15.7 No Merger
The rights and obligations of the parties will not merge on completion of
any transaction under this Agreement. They will survive the execution and
delivery of any assignment or other document entered into for the purpose
of implementing any transaction.
15.8 Enforceability
(a) Any provision of, or the application of any provision of, this
Agreement which is prohibited in any jurisdiction is, in that
jurisdiction, ineffective only to the extent of that prohibition.
(b) Any provision of, or the application of any provision of, this
Agreement which is void, illegal or unenforceable in any jurisdiction
does not affect the validity, legality or enforceability of that
provision in any other jurisdiction or of the remaining provisions of
this Agreement in that or any other jurisdiction.
15.9. Governing Law
This Agreement is governed by the laws of Malaysia and the parties
irrevocably submit to the jurisdiction of the Malaysian courts.
15.10 Arbitration
In the event that there shall be a dispute arising out of or relating to
this Agreement, any document referred to herein or centrally related to the
subject matter hereof, or the subject matter of any of the same, the
parties agree that such dispute shall be submitted to binding arbitration
in Los Angeles County, California, under the auspices of, and pursuant to
the rules of, the American Arbitration Association as then in effect, or
such other procedures as the parties may agree to at the time, before an
arbitrator selected pursuant to the rules of the American Arbitration
Association. Any award issued as a result of such arbitration shall be
final and binding between the parties, and shall be enforceable by an court
having jurisdiction over the party against whom enforcement is sought.
15.11 Costs
(a) Subject to paragraph (b), each party must pay its own costs and
expenses in respect of the preparation and execution of this
Agreement.
(b) The Purchaser shall bear any stamp duty (including fines and
penalties) and registration fees chargeable on this Agreement and on
any instruments entered into under this Agreement or instruments
required for the purposes of transferring, assigning or novating the
Assets.
15.12 Counterparts
This Agreement may be executed in one or more counterparts, each or which
shall be deemed to be an original and all of which together shall be
considered one and the same agreement.
16. TAXATION
16.1 The Vendor shall indemnify and keep the Purchaser indemnified against all
losses, damages, costs, expenses and outgoings in respect of any Taxation
related claim or matter which the Vendor may incur or be liable for in
connection with or arising out of the sale, disposal, transfer or
conveyance of the Assets to the Purchaser.
17. NO DISCLOSURE
17.1 Confidentiality
Subject to Clause 17.2, each party shall keep the terms of this Agreement
confidential.
17.2 Exceptions
A party may make any disclosures in relation to this Agreement as it thinks
necessary to:
(a) its professional advisers, bankers, financial advisers and financiers,
if those person undertake to keep information disclosed confidential;
(b) comply with any applicable law or requirement of any Public Authority;
or
(c) any of its employees to whom it is necessary to disclose the
information on receipt of an undertaking of that employee to keep the
information confidential.
17.3 Public announcements
Except as required by applicable law or the requirements of any Public
Authority, all press releases and other public announcements relating
to the transactions dealt with by this Agreement must be in terms
agreed by the parties. Furthermore, any proposed disclosure,
announcement or press release shall be discussed between the parties
hereto with the views and wishes of each party being duly taken into
account in the drafting of such disclosure, announcement or press
release.
17.4 Survival
This Clause shall survive termination of this Agreement.
[ THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK ]
EXECUTED by the parties as an agreement on the date first appearing.
The Common Seal of )
ELTRAX SYSTEMS SDN. BHD. )
(Company No. 290262-W) )
in the presence of : )
- ----------------------------- -----------------------------
Witness Director
Name : Name :
NRIC : NRIC :
SIGNED for an on behalf of )
ELTRAX INTERNATIONAL INC. )
(Incorporation No.: 25-1369276) )
in the presence of: )
- ----------------------------- -----------------------------
Witness Director
Name: Name:
Passport No.: Passport No.:
SIGNED for and on behalf of )
VERSO TECHNOLOGIES, INC. )
(Incorporation No.: 41-1484525) )
in the presence of: )
- ----------------------------- -----------------------------
Witness Director
Name: Name:
Passport No.: Passport No.:
This is the execution page of the Asset Sale Agreement between Eltrax Systems
Sdn. Bhd. as the Vendor, Eltrax International, Inc., Verso Technologies, Inc.,
Impact Level (M) Sdn. Bhd. as the Purchaser and AremisSoft Corporation in
respect of the sale and purchase of the assets and business of Eltrax Systems
Sdn. Bhd..
The Common Seal of )
IMPACT LEVEL (M) SDN. BHD. )
(Company No. : 519372-M) )
in the presence of : )
- ----------------------------- -----------------------------
Witness Director
Name : Name :
NRIC : NRIC :
SIGNED for and on behalf of )
AREMISSOFT CORPORATION )
(Incorporation No.:) )
in the presence of: )
- ----------------------------- -----------------------------
Witness Director
Name: Name:
Passport No.: Passport No.:
This is the execution page of the Asset Sale Agreement between Eltrax Systems
Sdn. Bhd. as the Vendor, Eltrax International, Inc., Verso Technologies, Inc.,
Impact Level (M) Sdn. Bhd. as the Purchaser and AremisSoft Corporation in
respect of the sale and purchase of the assets and business of Eltrax Systems
Sdn. Bhd..
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
SCHEDULE 4
The Vendor's Warranties
1. ACCURACY OF INFORMATION
1.1 Schedules
The information set out in the Schedules attached to this Agreement is
complete and accurate in all respects
None of that information is misleading in any material particular, whether
by inclusion of misleading information or omission of material information
or both.
1.2 Information
All information given in with respect to the Business or the Assets by the
directors of the Vendor to any director agent or adviser of the Purchaser
is accurate in all respects. None of that information is misleading in any
material particular, whether by inclusion of misleading information or
omission of material information or both.
1.3 Full disclosure
The Vendor has disclosed all information which :
(a) the Vendor knows, or could reasonably be expected to know after having
made reasonable enquiries, is material to be disclosed to a purchaser
for value of the Assets for the purposes of carrying on the Business;
and
(b) the Purchaser or any director, agent or adviser of the Purchaser has
requested.
2. POWER AND AUTHORITY
2.1 Incorporation and power
The Vendor :
(a) is a body corporate duly incorporated under the laws of the place of
its incorporation;
(b) has the power to own the Assets and carry on the Business as it is now
being conducted; and
(c) is duly registered and authorised to carry on the Business throughout
Malaysia.
2.2 Constituent documents
To the best knowledge and belief of the Vendor, the Business has been
conducted in accordance with the Memorandum and Articles of Association of
the Vendor.
2.3 Power and authority
The Vendor has the power and authority to execute and exchange this
Agreement and perform and observe all their terms without the consent of
any person other than the approval of its members. This Agreement has been
duly executed by the Vendor and is a legal, valid and binding agreement of
the Vendor enforceable against it in accordance with its terms.
2.4 No restriction on Vendor
The Vendor is not bound by any contract which may restrict its right or
ability to enter into or perform this Agreement. The execution and
performance by it of this Agreement did not and will not violate in any
respect a provision of :
(i) a law or treaty or a judgement, ruling, order or decree of a
Public Authority binding on it; or
(ii) its memorandum or articles of association or other constituent
documents.
3. TITLE
3.1 Title
(a) The Vendor is the legal and the beneficial owner of the Assets on the
Completion; and
(b) The Assets will be free and clear from all and any Encumbrances upon
transfer of the same by the Vendor to the Purchaser or the person as
shall have been directed by the Purchaser.
(c) There has been no exercise, purported exercise or claim for any
Encumbrance or equity over any of the Assets and there is no dispute
directly or indirectly relating to any of the Assets.
(d) The Vendor has not purchased any of the Assets on terms that property
in them does not pass until full payment is made by it to the seller.
3.2 Completion
On Completion:
(a) Save and except for the Assets which are subject to a charge (if any)
and which charge will be discharged upon payment of the Purchase
Price, the Assets and all documents which are necessary to establish
the title of the Purchaser to them will be in the possession or under
the control of the Vendor and will be available to be handed to the
Purchaser at Completion; and
(b) the Purchaser will acquire the full beneficial ownership of the Assets
free and clear of any Encumbrances or claims of any person.
4. SOLVENCY
4.1 Administration, winding up, arrangements, insolvency etc.
None of the following has occurred and is subsisting, or is threatened, in
relation to the Vendor:
(a) Any step taken (including without limitation, an application or order
made, proceedings commenced, a resolution passed or proposed in a
notice of meeting) for :
(i) the winding up, dissolution, or administration of the Vendor, or
(ii) the Vendor entering into an arrangement, compromise or
composition with or assignment for the benefit of its creditors
or a class of them.
(b) The Vendor:
(i) being (or taken to be under applicable legislation) unable to pay
its debts, other than as the result of a failure to pay a debt or
claim the subject of a good faith dispute; or
(ii) stopping or suspending, or threatening to stop or suspend,
payment of all or a class of its debts.
(c) The appointment of a receiver, receiver and manager, administrative
receiver investigator (within the meaning of Parts VIII and IX of the
Companies Act 1965) or similar officer to any of the Assets and
undertakings of the Vendor.
(d) The service of a notice pursuant to section 308 (2) of the Companies
Act 1965.
4.2 Claim against Asset
On or before the Completion Date, no Asset will be, liable to a claim by a
trustee in bankruptcy or liquidator.
4.3 No solvency declaration
No solvency declaration (within the meaning of section 257 of the Companies
Act 1965) has been made or published by the directors of the Vendor.
5. CONDUCT OF THE BUSINESS
5.1 (a) Conduct of Business
The Business has been conducted in the ordinary and usual course and not
otherwise and since the Accounting Date:-
(i) neither the turnover nor the financial or trading business of the
Business has deteriorated;
(ii) the Vendor has not borrowed or raised any money or taken any
financial facility in relation to the Business except as
disclosed in writing to the Purchaser;
(iii)the Vendor has paid to the creditors of the Business in
accordance with their respective credit terms and there are no
amounts owing by the Vendor which have been due for more than six
(6) weeks.
So far as the Vendor is aware, the trading prospects of the
Business have not been adversely affected as a result of any
event or circumstance which has arisen since the Accounting Date.
(b) Approvals
The Vendor has all necessary Approvals to carry on the Business
properly. In respect of each Approval, which is in full force and
effect as at the Completion Date:-
(i) all fees due have been paid;
(ii) all terms and conditions have been duly complied with;
(iii)to the best knowledge and belief of the Vendor, the Vendor knows
of no factor which might prejudice its continuance or renewal or
the grant of a corresponding Approval to the Purchaser; and
(iv) its details have been disclosed to the Purchaser in writing and
the Vendor know of no reason why it should not be capable of
being transferred or obtained by the Purchaser without the
necessity for any special arrangement or expense.
(c) Loss of custom
(i) The Business has not been materially and adversely affected by
the loss of any customer, contract or source of supply or by any
abnormal factor not affecting a similar business to the same
extent;
(ii) No supplier of the Business has ceased or, as a result of the
acquisition of the Business by the Purchaser, cease supplying the
Business or may substantially reduce its supplies to the
Business;
(iii)No customer of the Business has terminated, materially reduced
or will, as a result of the acquisition of the Business by the
Purchaser, terminate or materially reduce its relationship with
the Business.
(e) Contracts
No agreement has been terminated or has-expired which could
reasonably be expected to have a material adverse effect on the
financial performance of the Business.
(f) Insurance
(i) All the Assets of an insurable nature are and have at all
material times been insured in amounts representing their full
replacement or reinstatement value against fire and other risks
normally insured in the Business;
(ii) All insurance relating to the Business and the Assets are
currently in full force and effect and nothing has been done or
omitted to be done which could make any policy void or voidable;
(iii)Subject to any provision in the account books and ledgers of the
Business, the debts as at the date of this Agreement will be
realised to their full face value and are good and collectable in
the ordinary course of business.
6. CONTRACTS & ARRANGEMENTS
6.1 Joint arrangements
The Vendor is not, in relation to the Business :
(a) party to any agreement under which it is or will be bound to share the
profits of the Business, pay any royalties relating to the Business or
waive or abandon any rights;
(b) a member of any joint venture, partnership or unincorporated
association; or
(c) does not conduct and has not conducted any part of the Business
through a branch, agency or permanent establishment outside Malaysia
6.2 Agreements concerning the Business
(a) There have been no arrangements or understanding (whether legally
enforceable or not) between the Vendor and any person who is, directly
or indirectly, a shareholder or the beneficial owner of any interest
in the Vendor or any company in which the Vendor is interested
relating to the management of the Business or the ownership or the
letting of any of the Assets or the provision of finance, goods or
other facilities to or by the Vendor or otherwise in any way relating
to the Business or the Assets;
(ii) The Vendor has not been a party to any agency, distributorship,
marketing, purchasing, manufacturing or licensing agreement or
arrangement or any restrictive trade or other arrangement or
agreement pursuant to which any part of the Business has been
carried on or which in any way has restricted its freedom to
carry on the whole or any part of the Business or to use or
exploit any of the assets in any part of the world in such manner
as it thought fit;
(iii)compliance with the terms of this Agreement does not and will
not conflict with, result in the breach of or constitute, or fall
within any of the terms, conditions or provisions of any
agreement or instrument to which the Vendor is now a party.
7. MATERIAL CONTRACTS
The Vendor is not in relation to the Business and/or the Assets a party to
or subject to any legally binding agreement, transaction, obligation,
commitment, arrangement or liability which is material in terms of the
trading or financial position of the Business which:-
(a) is incapable of complete performance in accordance with its terms
within six (6) months after the date on which it was entered into or
undertaken; or
(b) is known by the Vendor to have been likely to result in a loss to the
Vendor on completion of performance if the Vendor had not sold the
Business pursuant to this Agreement; or
(c) subject to force majeure, could not readily be fulfilled or performed
by the Vendor on time and without undue or unusual expenditure or
money and effort if the Business was not sold; or
(d) is a contract under which payment has already been received by the
Vendor but which requires the performance of services by the Purchaser
after the Completion Date; or
(e) involves or is likely to involve obligations, restrictions,
expenditure or receipts of an unusually onerous or exceptional nature
and not in the ordinary course of the Business; or
(f) other than normal leasing agreements in respect of the motor vehicles
and office equipment, is a lease, loan agreement, debenture, guarantee
or indemnity or a letter of credit or a contract for hire or rent,
hire purchase or purchase by way of credit sale or periodical payment;
or
(g) involves or is likely to involve the supply of services by the Vendor
the aggregate value of which will represent in excess of 10% of the
turnover for the last accounting period of the Vendor; or
(h) will require the Purchaser to pay any commission finder's fees royalty
or similar payment; or
(i) in any way restrict the Vendor's freedom to carry on the whole or any
part of the Business in Malaysia or elsewhere in such manner as it
thinks fit.
8. ASSETS
8.1 Ownership
(a) Except for current assets subsequently acquired, sold or realised in
the normal course of business, the Vendor owned absolutely, at the
Accounting Date, and still owns absolutely all the Assets.
(b) The Vendor has not disposed of or agreed to dispose of or granted or
agreed to grant any security or Encumbrance in respect of any of the
Assets.
8.2 Location
Each Asset is located at the premises of the Vendor (other than any vehicle
in the course of being used for the purposes of the Business, details of
which are disclosed by the Vendor in writing to the Purchaser).
8.3 No Impairment
No notice has been served on the vendor in respect of any of the Assets
which might materially impair, prevent or otherwise interfere with the use
of or proprietary rights in the Asset or give to any right to terminate any
Contract.
8.4 Quality
To the best knowledge and belief of the Vendor, all Assets:-
(a) are, or at the time of sale were, of good and merchantable quality;
(b) are, or at the time of sale were, fit for the purpose for which they
are or were (as the case may be) intended to be used; and
(c) conform, or at the time of sale conformed, with all relevant
description, specifications and standards.
8.5 Assets Sufficient for the Business
(a) The Assets comprise of all assets now used in the Business and which
are necessary for the continuation of the Business now carried on.
(b) The Stocks are sufficient for the normal requirements of the Business.
(c) The work in progress included in the Stock is at its normal level
having regard to current orders included in the Equipment Sales and
Software Licence Agreements and to orders reasonably anticipated from
customers of the Business.
(d) The Stocks of all materials, packaging materials and finished goods
included in the Stocks are not excessive and are adequate in relation
to the current trading requirements of the Business.
8.6 Fixed Assets
The details of the fixed assets as disclosed in this Agreement and as
disclosed in writing to the Purchaser are complete and accurate.
8.7 Stocks
(a) The Stocks are of satisfactory quality and saleable at normal selling
prices.
(b) None of the Stocks is obsolete, unusable, unmarketable or
inappropriate or of limited nature in relation to the Business and
none of the Equipment Sales and Software Licence Agreement is likely
to result in this being untrue.
8.8 Stamping of Documents
All documents which in any way affect the right, title or interest of the
Vendor in or to any of the Assets and which attract stamp duty have been
duly stamped within the requisite period for stamping in accordance with
the Stamp Act 1949.
9. THE CONTRACTS
9.1 Disclosure of Contracts
The Equipment Sales and Software Licence Agreements and Computer Service
Agreements and the Office Lease constitute all the contracts and other
engagements referable to the Business to which the Vendor is now a party,
apart from the contracts of employment with its employees.
9.2 Nature of Contracts
None of the Contracts is:-
(a) of an unusual, abnormal or onerous nature;
(b) for fixed term of more than six (6) months;
(c) is of a long term nature (i.e. incapable of performance in accordance
with its terms within six (6) months after the date which it was
entered into or undertaken);
(d) will be incapable of termination in accordance with its terms by the
Purchaser on 60 days' notice or less;
(e) is of a loss making nature (i.e. known by the Vendor to have been
likely to result in a loss to the Vendor on completion or performance
if the Vendor had not sold the Business);
(f) will not be capable of being readily fulfilled or performed by the
Purchaser on time without undue or unusual expenditure or money or
personnel;
(g) will not involve payment by the Purchaser by reference to fluctuations
in the index of retail prices;
(h) was entered into in any way otherwise than in the normal course of
Business.
9.3 The Vendor is not nor (to the best of its knowledge and belief) will it
with the lapse of time become:-
(a) in default under any of the Equipment Sales and Software Licence
Agreement or Computer Service Agreements or in respect of any other
obligations or restrictions upon it in relation to the Business nor
has it waived any rights or privileges under any of them;
(b) in default under any provision existing by reason of membership of any
association or body relating to the Business;
(c) liable in respect of any representation or warranty (whether express
or implied) or matter giving rise to a duty of care on the part of the
Vendor relating to the Business.
9.4 No threat or claim under the Equipment Sales and Software Licence
Agreements and/or the Computer Service Agreements and/or the Assets has
been made and is outstanding against the Vendor and there is nothing
whereby any of the Equipment Sales and Software Licence Agreements and/or
Computer Service Agreements may be terminated or rescinded by any other
party or the Business and/or the Assets prejudiced as a result of anything
done or omitted or permitted to be done by the Vendor.
9.5 Neither the Vendor nor any other party to any agreement with the Vendor is
in default under such agreement being a default which would be material in
the context of the financial or trading position of the Business or in the
context of its Assets not (as far as the Vendor is aware) are there any
circumstances likely to give rise to such a default.
9.6 Subject to the provision in the account books and ledgers, the Vendor has
not manufactured or sold any products which were or are or will in any
material respect faulty or defective or which did not or do not comply in
any material respect with any warranties or representations expressly or
impliedly made by the Vendor or with all applicable laws regulations
standards and requirements.
10. EMPLOYEES
10.1 Disclosure
To the best knowledge and belief of the Vendor, the Vendor has records
disclosing in substance :
(a) the position and age of each Employee;
(b) all remuneration and other benefits paid to or conferred on each
Employee;
(c) the period of service of each Employee and their accrued long service
leave, annual leave, sick entitlements;
(d) each written contract of service or consultancy relating to the
Business to which the Vendor is a party; and
(e) each oral contract of service or consultancy between the Vendor and
any person in relation to the Business.
10.2 Unions
The Vendor is not a party to any agreement with any union or industrial
organisation in respect of the Employees and their employment.
10.3 Compliance With Law
To the best knowledge and belief of the Vendor, the Vendor has, in relation
to each Employee, complied in all material respects with all legislation
(including without limitation the Workers Compensation Act 1952, the
Employees Provident fund Act 1991, the Employees Social Security Act 1969,
the Occupational Safety and Health Act 1994 and the Factories and Machinery
Act 1967) collective agreements orders, awards and codes of conduct and
practice relevant to conditions of service and to the relations between it
and its employees and any trade union save for possible excessive noise
levels.
10.4 Industrial Disputes
To the best knowledge and belief of the Vendor, the Vendor is not in
relation to the Business involved in and there are no present circumstances
which are likely to give rise to any industrial or trade dispute or any
dispute or any dispute or negotiations regarding a claim of material
importance with any trade union or association of trade unions or
organisation or body of employees.
10.5 Disciplinary Measures
To the best knowledge and belief of the Vendor, there have been no
disciplinary measures involving dishonesty (including warnings) taken in
relation to any Employees in the period of 6 months before the date of this
Agreement.
10.6 Termination Of Employment
To the best knowledge and belief of the Vendor, no Employee :
(a) has given unexpired notice terminating his contract of employment; or
(b) is under notice of dismissal.
10.7 Amounts Due
To the best knowledge and belief of the Vendor, no amount due to or in
respect of any Employee is in arrears and unpaid other than current salary
for the relevant period at the date of this Agreement.
10.8 Liability To Public Authority
To the best knowledge and belief of the Vendor, the Vendor has no
outstanding liability to pay to any Public Authority any contribution,
Taxes or other impost arising in connection with the employment or
engagement of personnel by the Vendor in relation to the Business.
10.9 Occupational Health And Safety
To the best knowledge and belief of the Vendor, the Vendor has not breached
any legislation or Approval relating to the health or safety of the
Employees.
11. COMPLIANCE WITH LEGISLATION AND ABSENCE OF DISPUTES
11.1 No contravention of legislation
To the best of its knowledge and belief after due enquiry, the Vendor has
not, nor has any of its officers, agents or employees, committed or omitted
to do any act or thing the commission or omission of which is in
contravention of any legislation.
11.2 Disputes
Neither the Vendor or any person for whom it may be vicariously liable, is
or has been in the period from the execution of this Agreement until the
Completion Date, engaged in any prosecution, litigation, arbitration
proceedings or administrative or governmental challenge as plaintiff,
defendant, third party or in any other capacity in respect of the Business.
There are no such matters pending or threatened in respect of which verbal
or written communication has been given or received by or against the
Vendor. There are no facts or disputes which may give rise to any such
matters.
13. RECORDS AND CORPORATE MATTERS
13.1 Accounts and records
To the best knowledge and belief of the Vendor, all accounts, books,
ledgers and financial and all other records of the Vendor relating to the
Business :
(a) have been fully and properly maintained and contain complete and
accurate records of all matters required to be entered in them by any
relevant legislation;
(b) do not contain or reflect any material inaccuracies or discrepancies;
(c) give a true and fair view of the trading transactions, state of
affairs, financial and contractual position and assets and liabilities
of the Vendor in respect of the Business;
(d) have been prepared in accordance with applicable accounting standards
in Malaysia;
(e) are in the possession and unqualified control of the Vendor; and
(f) for employee records, contain adequate and suitable records regarding
the service of each of its employees and payments, contributions and
deductions pursuant to the Employees Provident Fund Act 1991, the
Employee Social Security Act 1969, the Workmen's Compensation Act 1992
and the Income Tax 1967.
13.2 No Material Changes
The accounts, books and ledgers of the Vendor truly and fairly disclose all
the Assets and Agreed Liabilities of the Business as the Accounting Date
and there have been no material changes and no material deterioration in
the financial position of the Vendor since the Accounting Date other than
as disclosed to the Purchaser in writing and no extraordinary items have
occurred during the periods between the Accounting Date and the Completion
Date.
14. POWERS OF ATTORNEY
14.1 Powers of Attorney
There is no power of attorney or other authority in force by which a person
is able to bind the Vendor in relation to the Assets or the Business other
than normal authorities under which officers or employees of the Vendor may
conduct the Business in the ordinary course.
14.2 Offers
No outstanding offer, tender, quotation or the like given or made by the
Vendor relating to the Assets or the Business is capable of giving rise to
a contract merely by any unilateral act of a third party, other than in the
ordinary course of business and on terms calculated to yield a gross profit
margin consistent with that usually obtained by the Vendor.
15. CONSEQUENCES OF ACQUISITION OF THE BUSINESS BY THE PURCHASER
The acquisition of the Business and/or the Assets by the Purchaser or
compliance with the terms of this Agreement will not:
15.1 (so far as the Vendor is aware without having made enquiry of such
following persons) cause any person who normally does business with the
Vendor not to continue to do so on the same basis as previously;
15.2 relieve any person of any contractual obligation to the Business or the
Vendor in respect of the Business or enable any person to determine any
such obligation enjoyed by the Business;
15.3 give rise to or cause to become exercisable any right of pre-emption
relating to the Business or any of the Assets;
15.4 result in a breach of or constitute a default under:-
(a) the terms, conditions or provisions of any agreement or instrument; or
(b) any order, judgement or decree of any court or governmental agency to
which the Vendor is a party of by which the Vendor is bound in
relation to the Business,
and to the best of the knowledge and belief of the Vendor (without
having made enquiry of the customers) the relationship of the Business
with clients, customers and employees will not be adversely affected by
the execution, completion and/or implementation of this Agreement;
15.5 will not require the authorization, consent, approval or licence of any
third party.
16. PROPERTIES
16.1 Additional Leasehold Matters
(a) the Vendor has paid all rents due and observed and performed the
covenants on the part of the tenant;
(b) all consents and approvals required from the landlord and any superior
landlord under the Office Lease have been obtained and the covenants
on the part of the tenancy contained in the consents and approvals
have been duly performed and observed.
(c) there are no rent reviews under the Office Lease or any superior
lease.
(d) there is no outstanding and unobserved or unperformed obligations
necessary to comply with any notice or other requirements given by the
landlord or any superior landlord under the Office Lease or any
superior lease.
(e) there is no obligation to reinstate the Office Lease by removing or
dismantling any alteration made to it by the Vendor and any
predecessor to the Vendor.
19. MATERIAL INFORMATION
19.1 To the best of the Vendor's knowledge, information and belief, there is:
(a) no fact or matter material to the value of the Assets or materially
affecting the aggregate value of the Assets; and
(b) no fact or matter materially affecting the Business.
which has not been disclosed to the Purchaser and the disclosure of
which might reasonably be expected materially to affect the
willingness of the Purchaser to acquire the Assets at the
Consideration or the terms upon which the acquisition is made (on the
assumption that the Purchaser will use such Assets for the purpose of
carrying on the Business) and for the purposes of Clause 19.1, the
aggregate of any claims under this warranty which total less than the
equivalent of USD10,000.00 shall not be considered material.
19.2 The information contained in the recitals and the schedules to this
Agreement, any information disclosed by the Vendor to the Purchaser in
writing and all other information in writing given by the Vendor or the
Vendor's Solicitors in the responses to the questionnaire submitted by the
Purchaser's Solicitors (including the annotations by the Vendor on such
questionnaire) and the responses by the Vendor's Solicitors to the
Purchaser's Solicitors enquiries were, when given, and will at the
Completion Date remain true, complete and accurate in all material respects
and to the best of its knowledge and belief the Vendor is not aware of any
fact or matter not in the public domain in relation to the Business which
renders any such information untrue, incomplete, inaccurate or misleading.
20. GUARANTEES AND WARRANTIES
The Vendor has not given any guarantee, indemnity or warranty or made any
representation in respect of any products or services sold or supplied by it or
in respect of any other aspect of the Business save for any guarantee, indemnity
or warranty implied by law and (save as aforesaid) has not accepted any
liability or obligation to service repair maintain take back or otherwise do or
not do anything in respect of any products or services that would apply after
such products or service have been delivered or supplied by it in connection
with the Business.
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SCHEDULE 5
SCHEDULE 6
SCHEDULE 7