DATED 2000
ELTRAX SYSTEMS PTY LIMITED (1)
AREMISSOFT (HK) CORPORATION LIMITED (2)
ELTRAX INTERNATIONAL INC (3)
VERSO TECHNOLOGIES, INC (formerly named
Eltrax Systems Inc) (4)
AREMISSOFT CORPORATION (5)
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ASSET SALE AND PURCHASE AGREEMENT
Relating to the sale and purchase of
ELTRAX SYSTEMS PTY LIMITED, a beneficially wholly-owned
subsidiary of Eltrax International Inc
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Robertsons
57th Floor, The Center
99 Queen's Road Central
Hong Kong
Ref: CDIG/80220
INDEX
Page No:
1. Definitions
2. Sale and Purchase of the Business
3. Consideration
4. Completion
5. Excluded Assets and Liabilities
6. Conduct of the Business
7. Debts and Liabilities
8. Risk and Liabilities
9. Title
10. Stocks and Cash Float
11. Warranties by the Vendor
12. Employees
13. Vendor's Undertakings
14. Guarantees
15. Conditions
16. Properties
17. Generally
18. Notices
19. Execution
Schedule 1 - Warranties
Schedule 2 - Transferring Employees
Schedule 3 - Agreed Liabilities
Schedule 4 - Debts
Schedule 5 - The Property
Schedule 6 - Provisions relating to the Property
Appendix 1 - Computer Software Licences
Appendix 2 - Equipment
Appendix 3 - Fixtures and Fittings
THIS AGREEMENT is made the day of 2000
BETWEEN:
(1) ELTRAX SYSTEMS PTY LIMITED a company incorporated under the laws of Hong
Kong whose registered office is at 2nd Floor, VIP Commercial Centre, 120
Canton Road, Kowloon, Hong Kong ("the Vendor")
(2) AREMISSOFT (HK) CORPORATION LIMITED a company incorporated under the laws
of Hong Kong whose registered office is at Room 5705, The Center, 99
Queen's Road Central, Hong Kong ("the Purchaser")
(3) ELTRAX INTERNATIONAL INC a corporation incorporated under the laws of the
state of Pennsylvannia US whose principal place of business is at 400
Galleria Parkway, Suite 300 Atlanta, GA30339, U.S.A. (Incorporation number
25-1369276) ("Eltrax International")
(4) VERSO TECHNOLOGIES, INC, formerly named Eltrax Systems Inc a corporation
incorporated under the laws of the state of Minnesota US whose principal
place of business is at 400 Galleria Parkway, Suite 300 Atlanta, GA30339,
U.S.A. (Incorporation No: 41-1484525) ("Verso")
(5) AREMISSOFT CORPORATION a corporation incorporated under the laws of the
State of Delaware US whose principal place of business is at [216 Haddon
Street, Suite 607, Westmont, NJ 08108] (Incorporation No:2902859) ("the
Purchaser's Parent Company")
WHEREAS:
(A) The Vendor is beneficially owned in its entirety by Eltrax International
whose holding company is Verso and the Vendor inter alia, provides turnkey
hardware and software solutions and services to the hospitality industry in
the Peoples' Republic of China, Hong Kong, Macau, Japan, South Korea and
Taiwan.
(B) The Purchaser's Parent Company and Verso (inter alia) have agreed under the
terms of the Head Agreement (as defined below) that the Purchaser's Parent
Company will purchase certain of the Assets and the Agreed Liabilities of
Eltrax International as provided in and on the terms of the Head Agreement
and pursuant thereto it has been agreed that the Vendor will sell to the
Purchaser the Business (as defined below) upon the terms and conditions of
this Agreement
NOW IT IS HEREBY AGREED as follows: -
1. DEFINITIONS
1.1 In this Agreement the following words and expressions have the
following meanings unless inconsistent with the context:
"Accounting Date" means 30th September 2000;
"Accounts" means the accounts relating to the Business incorporated into
the audited financial statements of the Vendor for the accounting
reference period ended on the Accounting Date comprising balance
sheet, profit and loss account, notes, the director's and auditor's
reports and costs flow statement;
"Agreed Form" means in relation to any documents such document in the form
agreed between the parties and initialled by the Purchasers'
Solicitors and the Vendors' Solicitors for the purpose of
identification;
"Agreed Liabilities" the aggregate amount owed by the Vendor at the
Completion Date in connection with the Business to or in respect of
trade creditors which are set out in Schedule 3 to be assumed by the
Purchaser pursuant to Clause 7.3 and in addition any liabilities to be
included in the Completion Accounts which the Purchaser agrees in
writing to assume in connection with the Business (but excluding any
liabilities relating to any other division of the Vendor and also
excluding any direct or indirect costs or liabilities incurred in
connection with the sale and purchase of the Business whether under
this Agreement or otherwise);
"Assets" means all the property assets and rights of the Vendor used in the
conduct of Business as at the Completion Date to be bought and sold
pursuant to Clause 2.1 below, including, but not limited to, the
Properties, all intellectual property and software products used in
the Business and all other Assets of the Vendor save for the Excluded
Assets;
"Balance Sheet Date" means the 30th September 2000;
"Business" means the business of providing turnkey hardware and software
solutions and services to the hospitality industry carried on by the
Vendor at the date hereof and at the Completion Date;
"Business Contracts" means the Customers Contracts, Supplier Contracts and
the Lease Contracts;
"Business Day" means any day which is not a Saturday, a Sunday or a Public
Holiday in Hong Kong;
"Business Information" means all information, know-how and techniques
(whether or not confidential and in whatever form held under the name
of the Vendor) which in any way relates to:-
(i) all or any part of the Business or Assets ;
(ii) any products manufactured and/or sold or services rendered
by the business;
(iii)any formulas, designs, specifications, drawings, data,
manuals or instructions;
(iv) 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
(v) the sale or marketing of any of the products manufactured
and/or sold 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.
"Business Name" means Eltrax Systems Pty Ltd.;
"CashFloat" means any cash balances held at the Effective Date for the
purpose of reimbursing out-of-pocket expenses in connection with the
Business;
"Completion" means the completion of the sale and purchase of the Business
and the Assets in accordance with Clause 4;
"Completion Accounts" means the accounts prepared in accordance with GAAP
incorporating the Assets to be acquired under clause 2.1 and the
Agreed Liabilities as at 30th September 2000;
"Completion Date" means the date on which the sale and purchase of the
Business is completed in accordance with clause 4.1 but shall not in
any event be prior to satisfaction or warrant of the conditions to
Completion set forth in clause 15;
"Completion Time" means the time at which the Completion actually occurs;
"Confidential Information" means information of every kind concerning or in
any way relating to the customers, business transactions, business
methods, records, forms, charges, financial affairs, trade secrets and
knowhow of the Business other than information which is in the public
domain.
"Computer Software Licences" means the computer software licences held by
the Vendor as listed in Appendix 1 together with the benefit of all
guarantees given to the Vendor in respect thereof or relating thereto;
"Computer Systems" means all computer hardware, software and networks owned
or used by the Business including all arrangements relating to the
provision of maintenance and support, security, disaster recovery,
facilities management, bureau and online services to the Business;
"Consideration" means the total purchase price payable by the Purchaser to
the Vendor for the Business and Assets hereby agreed to be sold for US
Dollars Five Hundred and Eighty Thousand (US$580,000);
"Creditors" means all trade and other debts, accrued charges and all other
amounts owing by the Vendor in connection with the business on the
Completion Date to the extent taken into account in the Completion
Accounts together with such debts as have properly been incurred in
the ordinary course of business between 30th September 2000 and
Completion;
"Customer Cash" means all cash sums belonging or referable to customers or
potential customers of the Business which are held or deposited with
the Vendor as deposits for or advances of instalment payments in
relation to, any Business contract or so held or deposited in relation
to any future contract to order which any such customer may place with
the Business in the future;
"Customer Contracts" means all those contracts, engagements or orders
entered into on or by the Completion Date by or on behalf of the
Vendor with its customers for the sale, loan or hire of goods or
equipment or provision of services by the Vendor in connection with
and in the ordinary course of business which at the Completion Date
remain to be performed in whole or in part by the Vendor including,
without limiting the generality of the foregoing words, or those
contracts, particulars of which are set out in Schedule 1 to the
Disclosure Letter;
"Debts" means the aggregate amount owed to the Vendor at the Completion
Date in connection with goods and services supplied in the Business by
or in respect of trade debtors including (but without limitation)
those trade debtors set out in Schedule 4 and in addition any debtors
in connection with the Business to be included in the Completion
Accounts which have fallen due between 30th September 2000 and
Completion to be assigned to the Purchaser pursuant to a Deed of
Assignment of Debts in the Agreed Form;
"Disclosed" means fully and fairly disclosed to the Purchaser expressly for
the purposes of this Agreement in the Disclosure Letter and for the
purposes of this definition the expression "fully and fairly" means
that a matter shall be Disclosed only if it has been Disclosed with
reference to a particular Warranty identified by its number in
Schedule 1 with sufficient particularity to enable the Purchaser to
assess the full impact on the business of the matter disclosed;
"Disclosure Letter" the letter disclosing exceptions to the Warranties
dated the date hereof and written and delivered by the Vendor to the
Purchaser in the Agreed Terms;
"the Eltrax Guarantors" means Eltrax International and Verso;
"Equipment" means the loose equipment comprising furniture plant and
machinery computer hardware software facsimile filing systems archives
and any other equipment wherever situate belonging to the Vendor and
used in connection with the Business including, without limitation to
the generality of the foregoing, all those items particulars of which
are set out in Appendix 2;
"Excluded Assets" means the assets listed in Clause 5 which are owned by
the Vendor and excluded from the sale;
"Excluded Employees" means all employees other than Transferring Employees
if any;
"Fixtures and Fittings" means the fixtures (other than the Fixed Plant and
Equipment), furniture, utensils, templates, implements, chattels and
equipment wherever situate belonging to the Vendor and used in
connection with the business including, without limitation to the
generality of the foregoing, all those items particulars of which are
set out in Appendix 3;
"GAAP" generally accepted accounting principles, as in effect on the date
of any statement, report or determination that purports to be, or is
registered to be, prepared or made in accordance with GAAP
consistently applied throughout the periods to which reference is
made;
"Goodwill" means the goodwill of the Vendor in connection with the Business
including the exclusive right for the Purchaser to represent itself as
carrying on the Business in succession to the Vendor, and under the
names and in connection with products of the Business under the trade
names Eltrax Systems and all other trade names of the Business but
excluding "Eltrax" and "Eltrax Hospitality" and all other trading
names and styles of the Vendor;
"HeadAgreement" means the Agreement between the Purchaser's Parent Company
and Eltrax Systems and Eltrax Hospitality Group Inc. by virtue of
which those parties have agreed to purchase all acquired assets and
assume the assumed liabilities for the consideration (as such terms
are defined in the Head Agreement) and upon the terms of the Head
Agreement;
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China;
"Information" means other than the Retained Records all stationery
promotional material brochures sales publications advertising material
terms of business and all other written or printed material issued
solely in connection with the Business and owned by the Vendor;
"Intellectual Property Rights" means patents, know-how, registered and
unregistered trademarks and service marks (including any trade, brand
or business name and any distinctive sounds used to differentiate the
goods or services of the business), domain names, registered designs,
registered rights, utility models, copyright (including all such
rights in computer software and hardware, the business information and
any databases), moral rights and topography rights, (in each case for
the full period thereof and all extensions and renewals thereof),
applications for any of the foregoing and the right to apply for any
of the foregoing in any part of the world and any similar rights
situated in any country; and the benefit (subject to the burden) of
any and all agreements, arrangements and licences in connection with
any of the foregoing and without prejudice to the generality of the
foregoing the rights to use, assign, licence or grant rights over any
trade or service mark of the Vendor or any member of the Vendor save
for "Eltrax" and "Eltrax Hospitality";
"Leases" means the leases of the Properties brief details of which are set
out in Schedule 5;
"Lease Contracts" means those contracts and other contractual arrangements
(including, without limitation, finance leases, but excluding leases
of real property) entered into by or on behalf of the Vendor in
connection with the Business and which remain unperformed as at the
Effective Date pursuant to which tangible assets used by the Vendor in
or in connection with the Business at that date (together "the Leased
Assets") have been supplied to or are held by the Vendor on hire or
other rental, lease, licence, hire purchase, or in other terms such
that title thereto does not pass or has not passed to the Vendor;
"Liabilities" means the liabilities of the Vendor in relation to the
Business outstanding at the Completion Date save for the Agreed
Liabilities;
"Properties" means the leasehold properties held by the Vendor described in
Schedule 5;
"Purchaser's Group" means the holding company of the Purchaser and all of
the subsidiaries of such holding company;
"Purchaser's Solicitors" means Messrs Robertsons of 57th Floor, The Center,
99 Queen's Road Central, Hong Kong;
"Records" means all sale and purchase records and lists of customers,
suppliers, agents, distributors and prospective customers, contracts,
correspondence, data, information reports, all consultancy reports
prepared for the Vendor or its customers, personnel, payroll, orders
for services and other books and records in whatever form the same are
maintained (including computer programmes) in respect of the Business
as are within the power possession or control of the Vendor and as may
exist but excluding the Retained Records and any other records the
Vendor is required to retain including (without limit) all records
which relate both to the Business and other operations or businesses
of the Vendor;
"Retained Records" means records and other documents of the Vendor relating
to the Business required to be retained by the Vendor by law;
"Landlord" means the person or corporation for the time being entitled to
the reversion expectant on the term granted by the Lease and shall
include any superior landlord and the freeholder of the Property;
"Stock" all unsold products and stock in trade, raw materials, components
and work in progress of the Business at the Completion Date;
"Supplier Contracts" means all those contracts, engagements or orders
entered into on or prior to the completion Date by or on behalf of the
Vendor for the supply or sale of goods to the Vendor in connection
with and in the ordinary course of the Business which at the
Completion Date remain to be performed in whole or in part;
"Third Party Rights" means rights of the Vendor against third parties
arising out of the Business in respect of manufacturer's or supplier's
warranties guarantees and other contractual obligations and assurances
(express or implied) in relation to Stock, Equipment and Computer
Systems so far as the Vendor can assign the same but excluding any
claim or right by the Vendor in respect of taxation or insurance;
"Transferring Employees" means the employees listed in Schedule 2;
"Vendor's Group" means the holding company of the Vendor and all of the
subsidiaries of such holding company;
"Vendor's Solicitors S.H. Chan & Co. of 18th Floor, China Overseas
Building, 139 Hennessy Road, Hong Kong;
"Warranties" the warranties representations and undertakings given by the
Vendor and guaranteed by the Eltrax Guarantors set out in Schedule 1
to this Agreement.
1.2 The schedules and appendices attached hereto form part of this
Agreement and have the same force and effect as if expressly set out
in the body of this Agreement and any reference to this Agreement
includes the schedules, appendices and the recitals hereto
1.3 In this Agreement and its schedules:
1.3.1 words and expressions defined in the Companies Ordinance, Cap 32
of the Laws of Hong Kong shall have a like meaning herein
1.3.2 reference to any statute or statutory provision includes any
statute or statutory provision which amends or replaces or has
amended or replaced it or which it has replaced and includes any
subordinate legislation made under the relevant statute except to
the extent that any amendment or modification enacted after
today's date would extend or increase the liability of the Vendor
under the Warranties
1.3.3 the paragraph headings and index are for reference purposes only
and shall not affect interpretation
1.3.4 unless otherwise stated a reference to a clause or schedule is a
reference to the clause or schedule so numbered in this Agreement
1.3.5 unless the context otherwise requires words importing one gender
include the other genders and words importing the singular
include the plural and vice versa
2. SALE AND PURCHASE OF THE BUSINESS
2.1 Subject to the provisions of this Agreement the Eltrax Guarantors
shall procure that and the Vendor shall sell and the Purchaser shall
purchase for the Consideration with effect from the Completion Date
the Business as a going concern and the Assets and without prejudice
to the generality of the foregoing the Assets shall include in
particular the following assets of the Business (if any):
2.1.1 the Goodwill;
2.1.2 the Properties;
2.1.3 Equipment and Fixtures and Fittings;
2.1.4 the benefit (subject to the burden) of the Business Contracts;
2.1.5 the benefit (subject to the burden) of the Computer Software
Licences (including for the avoidance of doubt the benefit of all
guarantees given to the Vendor in respect thereof or relating
thereto);
2.1.6 the Stock;
2.1.7 the Intellectual Property Rights;
2.1.8 the Cash Float;
2.1.9 the Computer Systems;
2.1.10 the Lease Contracts;
2.1.11 without in any way limiting the generality of the foregoing all
other assets (if any) of the Vendor of whatever nature employed
in the Business at the Completion Date but excluding the Excluded
Assets;
2.1.12 cash in hand and at bank and all cheques and other securities
representing the same
2.2 The Purchaser's Parent Company shall procure that Purchaser shall pay
to the Vendor the Consideration as consideration for the sale of the
Business as a going concern and the Assets on the Completion Date
3. CONSIDERATION:
3.1 The Consideration payable for the sale by the Vendor of the Business
and the Assets shall be the sum of US Dollars Five Hundred and Eighty
Thousand (US$580,000) being the aggregate of the values of the
Goodwill, the Properties, the Fixtures and Fittings, the Business
Contracts, the Computer Software Licences, the Intellectual Property
Rights, the Computer Systems, the Lease Contracts, Motor Vehicles and
the Stocks less the Agreed Liabilities and Cash Float.
4. COMPLETION
4.1 Completion shall take place on the Completion Date at the offices of
the Purchaser's Solicitors or at such other place as the parties may
agree on Completion at the Completion Time whereupon the transactions
set out in Clause 4.2 and 4.3 shall take place
4.2 The Eltrax Guarantors shall procure and the Vendor shall deliver or
cause to be delivered to the Purchaser:
4.2.1 a Deed of Assignment of the Intellectual Property Rights in the
Agreed Form duly executed by the Vendor
4.2.2 a Deed of Assignment of the Goodwill in the Agreed Form duly
executed by the Vendor
4.2.3 a Deed of Assignment of the Debts in the Agreed Form duly
executed by the Vendor
4.2.4 the Equipment, the Computer Systems and all other of the Assets
as are capable of passing by delivery
4.2.5 such documents as shall be reasonably necessary or appropriate
to complete the sale and purchase of the Assets and vest title in
them in the Purchaser
4.2.6 the Records
4.2.7 the Stock
4.2.8 the Business Contracts which the Vendor hereby assigns to the
Purchaser
4.2.9 the Business Information and the Information
4.2.10 the Computer Software Licences
4.2.11 an assignment of the Leases and the Landlord's consent relating
to the assignment of the Leases
4.2.12 deeds of release in respect of all charges mortgages debentures
and other security interests created by the Company (if any) or
to which any of the Assets are subject in terms satisfactory to
the Purchaser (if any)
4.3 The Purchaser shall pay in cleared funds as the Vendor shall direct by
giving 48 hours prior written notice the Consideration.
4.4 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).
4.5 The Vendor undertakes with the Purchaser to allow the Purchaser on
reasonable notice access to or copies of such of the Retained Records
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 undertakes
that it shall give such reasonable assistance to the Purchaser as
shall be agreed by 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
5. EXCLUDED ASSETS AND LIABILITIES
There shall be excluded from the sale and purchase of the Business and retained
by the Vendor:
5.1 all the statutory books and statutory records of the Vendor and the
Retained Records
5.2 any amounts 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
5.3 the Liabilities
6. CONDUCT OF THE BUSINESS
6.1 The Vendor shall carry on the Business as a going concern and
prudently and in an efficient and business-like manner from the date
of this agreement to the Completion Date and during such period shall:
6.1.1 not sell or dispose of any of the Assets or remove any physical
Assets of the Business from the Property save in the course of
normal day to day trading;
6.1.2 use its best endeavours to maintain the trade and trade
connection of the Business and shall not by any action omission
default or neglect knowingly damage or risk damage to the same;
6.1.3 settle the debts incurred by it in the course of the Business
including (without limitation) salaries wages and other
emoluments payable to the employees of the Business;
6.1.4 not enter into any material contract or incur capital
expenditure (other than as disclosed in writing to the Purchaser
prior to the date of this Agreement or except with the prior
written consent of the Purchaser or at its request);
6.1.5 not in any way depart from the ordinary course of the day-to-day
conduct of the Business either as regards the scope or the manner
of conducting the same;
6.1.6 not enter into any unusual or abnormal contract or commitment
which is material to the Business;
6.1.7 not grant or create or agree to grant or create any mortgage
charge debenture or other incumbrance over of affecting any of
the Assets;
6.1.8 not permit any or its insurances to lapse or do or omit to do
any thing which would make any policy of insurance void or
voidable.
6.2 The Purchaser shall take over the Business with effect from the
Completion Date and shall assume responsibility for the management of
the Business in all respects.
7. DEBTS AND LIABILITIES
7.1 The Vendor shall assign the Debts to the Purchaser on Completion Date
by executing a Deed of Assignment in the Agreed Form as provided in
clause 4.2.3.
7.2 The Vendor shall be solely responsible for and in the ordinary course
of business shall discharge the Liabilities promptly and
notwithstanding Completion shall be responsible for all debts payable
by and claims accruing or outstanding against it in relation to the
Business at Completion Date (save for the Agreed Liabilities) which it
hereby agrees to discharge and satisfy in a timely manner. In relation
to any claim made by a third party the Vendor will promptly give
notice thereof to the Purchaser and will not take any steps which
might damage the commercial interests of the Purchaser without prior
consultation with and the approval of the Purchaser not to be
unreasonably withheld or delayed
7.3 The Purchaser shall be responsible for discharge of the Agreed
Liabilities in accordance with their terms as from Completion and for
the avoidance of doubt where it is determined that any listed
Liability in Schedule 3 should not have been an Agreed Liability then
such liability shall be deleted from the Agreed Liabilities for all
the purposes of this Agreement and be treated as a Liability
7.4 The Purchaser shall fully and effectively indemnify and keep
indemnified the Vendor on demand against all demands, claims,
liabilities, costs and expenses properly incurred by it in relation to
the Agreed Liabilities
8. RISK AND LIABILITIES
8.1 The assets rights and property to be sold pursuant to this Agreement
shall be at the sole risk of the Purchaser from the Completion Time
8.2 Save for the Agreed Liabilities and the other obligations of the
Purchaser assumed hereunder the Vendor hereby undertakes to indemnify
and hold harmless the Purchaser from and against any and all
8.2.1 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 or on Completion and any
and all actions suits proceedings claims demands assessments
awards and judgements in respect thereto and (save in respect of
work in progress and unfinished products and any steps required
to be taken by the Purchaser under Clause 6.2)
8.2.2 liabilities arising under or in respect of all contractual
commitments entered into by the Vendor in respect of the Business
(save as provided in Clause 2.1.4 in respect of the Business
Contracts)
8.3 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 after Completion and will indemnify
and hold harmless the Vendor in respect of the same
8.4 After Completion 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 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 Completion and the Purchaser
shall indemnify the Vendor against all reasonable costs and
liabilities incurred by the Vendor under such warranties
8.5 All rents, rates, gas, water, electricity and telephone charges and
other outgoings ("the Outgoings") relating to or payable in respect of
the Business up to and including Completion shall be borne by the
Vendor and after Completion telephone charges and the Outgoings
relating to or payable in respect of the Business shall be borne by
the Purchaser and all rents, royalties and other periodical payments
receivable in respect of the Business which are attributable to or
arise by reference to the period after Completion shall belong to and
be payable to the Purchaser. The Outgoings and payments receivable
including Customer Cash shall be apportioned on a like basis, provided
that any of the 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
8.6 Where any amounts fall to be apportioned under this Agreement, the
Vendor shall provide the Purchaser with 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 any
apportionment is in dispute, the provisions of Clause 8.7 shall apply
for resolving the dispute and the amount determined in accordance with
that clause shall be paid within 14 days of the determination,
together with interest calculated on a daily basis (as well after as
before judgment), from Completion until the date of actual payment, at
the rate of two per cent per annum above the prime rate from time to
time of the Hong Kong & Shanghai Banking Corporation Limited
8.7 Any dispute with respect to the determination of the value of any
apportionments under Clause 8.6 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 14 days after request
by either the Vendor or the Purchaser, nominated at the request of
either of them by the President for the time being of the Hong Kong
Society 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
by the Vendor and the Purchaser in such proportions as the accountants
determine
8.8 The Vendor shall be granted by the Purchaser the right during normal
business hours to inspect on reasonable notice all the Records
relating to the Business which the Vendor considers necessary to
consider such apportionments provided that the Vendor shall keep the
same confidential and not divulge or disclose the same save as
required by law
8.9 The Vendor shall maintain all such of the Retained Records which are
retained by it on Completion for a period of not less than 7 years
from Completion
9. TITLE
9.1 The Leases shall be assigned by the Vendor to the Purchaser pursuant
to the terms and conditions set out in Schedule 6
9.2 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 it 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
9.3 In so far as the Assets comprise the benefit of the Business Contracts
or the Computer Software Licences or Computer arrangements which
cannot be effectively assigned to the Purchaser without the consent of
a third party or except by agreement or novation:-
9.3.1 the Vendor and the Purchaser shall use all reasonable endeavours
to obtain such consent in order to procure a novation;
9.3.2 unless and until such consent is obtained or any such contract
is novated the Purchaser shall for its own benefit and to the
extent that such Customer Contracts or Computer Software Licences
complete arrangements (as the case may be) permit perform on
behalf of the Vendor and the Vendor shall hold the relevant
Customer Contract or Computer Software Licence as bare trustee
for the Purchaser (and subject to 9.3.3) for nil consideration
and shall sub-contract any work arising from the Contracts to the
Purchaser to the intent that the Vendor does not benefit from the
Customer Contracts
9.3.3 if and to the extent that any Customer 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 Customer
Contracts to the Purchaser to the intent that the Vendor does not
benefit from and incurs no expense in respect of the Customer
Contracts
9.4 The Purchaser shall indemnify and hold harmless the Vendor against all
costs, claims, liabilities and expenses arising out of the Customer
Contracts (but not in the event that the same arises from a breach or
default by the Vendor) or the Computer Software Licences after
Completion
10. STOCKS AND CASH FLOAT
10.1 The parties shall jointly procure that as soon as practicable and in
any event within 21 days of the Completion Date:-
10.1.1 the value of the Stock as at the Completion Date is determined
upon the same basis as for the purposes of the Completion
Accounts, but reduced by the amount of any prepayment or deposits
received by the Vendor or payable to it under the Customer
Contracts prior to the Transfer Date;
10.1.2 the amount of the Cash Float is determined.
10.2 Any dispute with respect to the determination of the value of the
Stocks or the amount of the Cash Float shall be referred for final
settlement to a firm of chartered accountants nominated jointly by the
Vendor and the Purchaser or, fairly such nomination within 14 days
also request by either the Vendor or the Purchaser, nominated at the
request of either of them by the President for the time being of the
Hong Kong Society 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 by the Vendor and the Purchaser in such proportions as
the accountants determine.
10.3 The amounts agreed or determined under the foregoing sub-clauses 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.
10.4 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.
11. WARRANTIES BY THE VENDOR
11.1 The Vendor warrants to the Purchaser that subject to matters Disclosed
in the Disclosure Letter and in this Agreement the Warranties set out
in Schedule 1 at the date of this Agreement are (and will at
Completion be) true and accurate in all respects
11.2 The rights and remedies of the Purchaser in respect of any breach of
the 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
11.3 Where any Warranty refers to the awareness or knowledge information
and belief of the Vendor the Vendor undertakes that it has procured
that the directors of the Vendor have made reasonable, diligent and
proper enquiry into the subject matter of that Warranty
11.4 If the Vendor pays to the Purchaser an amount in respect of a breach
of the 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
12. EMPLOYEES
12.1 The parties declare that it is their intention that the contracts of
employment of the Transferring Employees shall be transferred to the
Purchaser with effect from Completion
12.2 All salaries and other emoluments relating to the Transferring
Employees shall be borne by the Vendor up to and including Completion
and by the Purchaser thereafter and all necessary apportionments shall
be made
12.3 The Vendor shall indemnify the Purchaser against each and every cost
claim liability expense or demand which relates to or arises out of
any act or omission by the Vendor or any other event or occurrence
prior to the date of Completion and which the Purchaser may incur in
relation to any contract of employment and collective agreements
concerning the Transferring Employees including without limitation any
such matter relating to or arising out of:
12.3.1 the Vendor's rights powers duties and/or liabilities under or
in connection with any such contract of employment and any such
collective agreements (which rights powers duties and/or
liabilities are or will be transferred to the Purchaser)
12.3.2 anything done or omitted before Completion by or in relation to
the Vendor in respect of any contract of employment or any such
collective agreements or any person employed in the Business
which is deemed to have been done or omitted by or in relation to
the Purchaser
12.3.3 the Vendor's failure to pay to any Transferring Employee any
sums due in respect of the period prior to Completion
12.3.4 any claim by any trade union, staff association, employee
representative or staff body recognised by the Vendor or
Transferring Employees in respect of all or any of the
Transferring Employees arising out of the Vendor's failure to
comply with its legal obligations to such trade unions, staff
associations, employee representatives, staff bodies or
Transferring Employees
12.3.5 any claim by any of the Excluded Employees or any other former
existing or future employee of the Vendor (other than
Transferring Employees) against the Purchaser concerning or
relating to any matter whatever including without limitation any
claim by such Excluded Employees that their employment has
transferred to the Purchaser or arising from any termination
which the Purchaser effects of such Excluded Employees
12.3.6 any claim by any of the Transferring employees made before or
after the date of Completion for severance pay as a consequence
of such Transferring Employee declining to accept employment by
the Purchaser as contemplated by this Agreement
12.4 The Purchaser shall indemnify the Vendor against each and every cost
claim liability expense or demand arising from any act or omission by
the Purchaser in relation to a Transferring Employee occurring after
the date of Completion
12.5 The parties hereby agree and acknowledge that the Excluded Employees
shall be deemed not to transfer with the Business and shall remain in
the employ of the Vendor.
13. VENDOR'S UNDERTAKINGS
For the purpose of assuring to the Purchaser the full benefit of the Business
the Vendor covenants with the Purchaser that the Vendor shall not and the Eltrax
Guarantors as a separate covenant shall not and shall procure that each company
in the Vendor's Group shall not:-
13.1 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)
13.2 publish any technical descriptions of Confidential Information 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)
13.3 for three (3) years following the Completion, either on its own
account or through or in conjunction with any other person anywhere
within Hong Kong or anywhere else in the world unless otherwise
authorised by the Purchaser in writing directly or indirectly
13.3.1 solicit, interfere with, approach or endeavour to entice away
from the Purchaser any person who is now or has during the last
two (2) years preceding the Completion been a client or customer
or employee or contractor of the Vendor in relation to the
Business
13.3.2 participate in the ownership, management, operation, or control
of, or have any financial interest in or be connected with, or
engage in or aid or knowingly assist anyone else, in the conduct
of any business in competition with the Business
14. GUARANTEES
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 each of 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 making the payments and in
performing and observing the agreements and conditions on its part
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 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 14
shall be a continuing security and shall not be affected 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
15. CONDITIONS
This Agreement and Completion is conditional upon the exchange and
completion of the Head Agreement and all subsidiary agreements contemplated
by the parties thereto under that Agreement.
This Agreement shall automatically terminate on the expiry of 6 months from
the date hereof and all rights and obligations of the parties shall save
for accrued rights cease to have effect immediately on such date, unless
before that date the above mentioned condition has been fulfilled.
The assignment of the Leases is conditional (unless and to the extent that
the Purchaser waives such condition in relation to the Property by notice
in writing given to the Vendor at any time) upon the consent of the
respective Landlords for the time being under the Lease to the assignment
of the Leases to the Purchaser ("the Landlords' Consent") being obtained.
The Vendor has applied to the Landlords for the Landlords' Consent and
shall keep the Purchaser fully informed of the progress of such
application.
The Vendor will use best endeavours to obtain the Landlords' Consent and
satisfy any lawful and reasonable requirements of the Landlords as a
condition of obtaining the Landlords' Consent.
16. PROPERTIES
The provisions of Schedule 6 shall more particularly apply in relation to
the assignment of the Properties.
17. GENERALLY
17.1.1 Except as required by law and any such announcements made or to
be made to the staff of the Vendor no announcements of the terms
of this Agreement shall be made by any party without the consent
of the others and pending any agreed announcement each party
shall use its best endeavours to keep the same confidential
17.1.2 The exercise of or the failure to exercise any right (including
a right of rescission) conferred on any party by this Agreement
shall not constitute a waiver of that or any other right or
remedy available to that party
17.1.3 If any provision of this Agreement is held by any competent
authority to be invalid or unenforceable in whole or in part this
Agreement shall continue to be valid as to its other provisions
and the remainder of the affected provision
17.1.4 This Agreement shall be governed by and construed in accordance
with Hong Kong law and the parties irrevocably submit to the non
exclusive jurisdiction of the Courts of Hong Kong and waive any
objection to proceedings in such courts on grounds of venue or on
the grounds that proceedings have been brought in an inconvenient
forum
17.2 All obligations which remain to be performed after the date of
Completion shall continue in full force and effect notwithstanding
Completion and shall not merge in the assurance to the Purchaser
17.3 This Agreement shall be binding upon and enure for the benefit of the
successors of the parties but shall not be assignable, save that the
Purchaser may at any time assign all or any part of the Assets
17.4 This Agreement, together with any documents referred to in it,
constitutes the whole agreement between the parties relating to its
subject matter and supersedes and extinguishes any prior drafts,
agreements, undertakings, representations, warranties, assurances and
arrangements of any nature, whether in writing or oral, relating to
such subject matter
17.5 The Purchaser acknowledges that it has not been induced to enter into
this Agreement by any representation, warranty, promise or assurance
by the Vendor or any other person save for those contained in this
Agreement. The Purchaser agrees that (except in respect of fraud) it
shall have no right or remedy in respect of any representation,
warranty, promise or assurance save for those contained in this
Agreement
17.6 No variation of this Agreement shall be effective unless made in
writing and signed by each of the parties
17.7 Each party shall bear its own costs arising out of or in connection
with the preparation, negotiation and implementation of this Agreement
18. NOTICES
18.1 Any notice required to be given by any party hereto to another shall
be in writing and shall be delivered personally at or sent by prepaid
first class post addressed in each case to the address given herein or
such other address as may from time to time be notified for this
purpose and any notice so served by post shall be deemed to have been
served 48 hours after the time at which it was posted and in proving
such service it shall be sufficient to prove that the notice was
properly addressed and posted as a first class letter. A notice
delivered by courier shall be deemed to be given personally and:-
18.1.1 at the time of delivery if it is delivered before 6.00pm on a
Business Day; and
18.1.2 in any other case at 9.00am on the next following Business Day.
(a) If to Vendor, addressed as follows:
Eltrax Systems Pty Limited
2nd Floor, VIP Commercial Centre
120 Canton Road
Kowloon
Hong Kong
with a copy to:
Derek S. Adolf/Lise Barrera
Jaffe Raitt
Jaffe Raitt Heuer & Weis S.P.L.
One Woodward Avenue,
Suite 2400, Detroit Michigan, 48226, U.S.A.
Gary Y.H. Yeong
S.H. Chan & Co.,
18/F China Overseas Building,
139 Hennessy Road,
Wanchai, Hong Kong
(b) If to Purchaser, addressed as follows:
AremisSoft (HK) Corporation Limited, 5705 The Center,
99 Queen's Road Central,
Central, H.K.
with copies to:
Scott Bartel,
Bartel Eng Linn & Schroder,
300 Capitol Mall,
Suite 1100,
Sacramento,
California, 95814, U.S.A.
Christopher Gordon, Robertsons,
57th Floor, The Center,
99 Queen's Road Central, H.K.
(c) if to the Eltrax Guarantors, addressed as follows:
Verso Technologies, Inc.
400 Galleria, Suite 300,
Atlanta, GA30339,
U.S.A.
Attn: William P. O'Reilly, Chairman
(d) if to the parent company, addressed as follows:
AremisSoft Corporation,
216 Haddon Street, Suite 607,
Westmont, NJ08108,
U.S.A.
Attn: Roys Poyiadjis, CEO
or to such other individual or address as any party hereto may
designate for itself following the giving of prior written notice as
provided herein
18.2 Each of Eltrax International and Verso hereby appoint those persons
named at Clause 18.1(a) in Hong Kong as their process agent to receive
and acknowledge on its behalf any writ, summons, order, judgment or
other court documents (together "Processes") relating to this
Agreement and such parties further confirm that any such Processes
shall be sufficiently served to such process agent if delivered to the
address maintained by it in Hong Kong from time to time for receiving
notices herein.
19. EXECUTION
19.1 This Agreement may be signed in any number of copies or counterparts
(and by different parties hereto on separate copies or counterparts),
each of which when so signed and delivered shall be an original but
all the counterparts shall nevertheless constitute one and the same
instrument.
AS WITNESS the hands of the Parties the day and year first above written
SCHEDULE 1
(The Warranties)
1. THE VENDOR
1.1 The Vendor is and will at Completion be entitled to enter into this
Agreement with the Purchaser and the Vendor has full power and authority to
sell the Assets to the Purchaser without obtaining the consent of any third
party.
1.2 Compliance with the terms of this Agreement, and any document entered into
by the Vendor in accordance with it, does not and will not conflict with or
result in a breach of any of the provisions of the Vendor's Memorandum or
Articles of Association.
1.3 The Vendor has at all times carried on the business in all respects in
accordance with its Memorandum and Articles of Association for the time
being in force and any other documents to which it is or has been a party.
1.4. The Vendor has not disposed of or agreed to dispose of or granted or agreed
to grant any security or other encumbrance in respect of any of the Assets
and the Vendor shall sell the Assets to the Purchaser with full title
guarantee free from all charges liens and encumbrances.
2. ACCOUNTS
2.1 The Accounts have been prepared in accordance with the requirements of all
relevant statutes and generally accepted accounting principles consistently
applied and comply with all current standard statements of accountancy
practice applicable to a Hong Kong company and show a true and fair view of
the state of affairs of the Vendor at the Balance Sheet Date and the
profits or losses for the period ended on such date.
2.2 To the extent required by the Companies Ordinance and the relevant SSAPs
proper provision or reserve has been made in the Accounts for all
liabilities and capital commitments of the Company outstanding at the
Balance Sheet Date whether contingent quantified disputed or not and the
Statutory Accounts are not affected by any unusual or non-recurring item
(as relate to the Business).
2.3 For the purposes of the Accounts the Company's assets have been valued on
bases in all material respects consistent with those adopted for the
purpose of the audited accounts of the Company in respect of the beginning
and end of each of the last three preceding accounting periods and the
bases and policies of accounting of the Company adopted for the purpose of
preparing the Accounts are the same as those adopted for the purpose of
preparing the audited accounts for such periods.
2.4 The Completion Accounts have been prepared in accordance with generally
accepted accounting principles and reflect a true and fair view of the
state of affairs of the Business and truly and fairly disclose all assets
and the Agreed Liabilities of the Business at the date to which they relate
and apply bases and policies of accounting which have been consistently
applied in the Accounts (save that such Completion Accounts have not been
audited) and there have been no material changes and no material
deterioration in the financial position of the Company since the Balance
Sheet Date other than as disclosed in the Accounts and no extraordinary
items have occurred during the periods between the date of the Accounts and
Completion.
3. VENDOR'S BOOKS AND RECORDS
3.1 All of the Vendor's accounts, books, ledgers, financial and other records
of every kind relating to the Business have been fully and accurately
maintained in accordance with generally accepted accounting practices and
standards and there are no material inaccuracies or discrepancies of any
kind contained or reflected in them or in any of them in relation to its
fixed assets, debtors, creditors, work-in-progress and other current assets
of the Business (including without prejudice to the generality the Assets,
the Equipment, the Debts and the Stock) and liabilities (including the
Agreed Liabilities and the Liabilities) in relation to the Business and
will be fully written up to the date of Completion.
4. CONSEQUENCE 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:
4.1 (so far as the Vendor is aware without having made enquiry of such
following persons) cause any person who normally does business with the
Business not to continue to do so on the same basis as previously;
4.2 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;
4.3 give rise to or cause to become exercisable any right of pre-emption
relating to the Business or any of the Assets nor;
4.4 result in a breach of or constitute a default under (i) the terms,
conditions or provisions of any agreement or instrument or (ii) any order,
judgment or decree of any court or governmental agency to which the Vendor
is a party or 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, suppliers and employees will not be adversely affected by the
execution, completion and/or implementation of this Agreement.
5. THE ASSETS
5.1 Ownership of Assets
5.1.1 The Vendor owns absolutely at Completion all the Assets.
5.1.2 The Vendor has not disposed of or agreed to dispose of or granted or
agreed to grant any security or other encumbrance in respect of any of
the Assets.
5.2 Assets sufficient for the Business
5.2.1 The assets comprise all assets now used in the Business and which are
necessary for the continuation of the Business now carried on.
5.2.2 The work in progress is at its normal level having regard to current
orders included in the Customer Contracts and to orders reasonable
anticipated from customers of the Business.
5.2.4 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.
5.3 Equipment
5.3.1 Appendix 2 contains full and accurate details of the Equipment.
5.3.2 The Equipment and other equipment :-
(a) are in a proper state of repair and condition and satisfactory
working order;
(b) have been regularly and properly maintained; and
(c) are adequate for and not surplus to the requirements of the
business.
5.5 Document Stamps
All documents which in any way effect 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.
5.6 None of the Assets is subject to any option, lien or encumbrances or any
agreement or commitment to give or create any of the foregoing and the
Assets are the sole unencumbered absolute property of the Vendor.
5.7 There has been no exercise, purported exercise or claim for any charge,
lien, encumbrance or equity over any of the Assets and there is no dispute
directly or indirectly relating to any of the Assets.
5.8 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.
6. TRADING
6.1 Business and Financial Position
6.1.1 Since the Accounting Date:-
(a) the Business has been continued in the normal course as regards
its nature, extent and manner of carrying it on;
(b) neither the turnover nor the financial or trading business of the
Business has deteriorated;
(c) the Vendor has not borrowed or raised any money or taken any
financial facility in relation to the Business except for the
overdraft facilities from its bankers specified in the
Disclosures;
(d) the Vendor has paid the Creditors of the business in accordance
with their respect credit terms and there are no amounts owing by
the Vendor which have been due for more than six weeks.
6.1.2 So far as the Vendor is aware the trading prospects of the Business
have not been adversely effected as a result of any event or
circumstance which has arisen since the Accounting Date.
6.1.3 Since the Accounting Date the Vendor has not deliberately done or
omitted to do anything which might prejudice or effect the Goodwill.
6.2 Existing Suppliers and Customers
6.2.1 So far as the Vendor is aware:-
(a) no supplier of the business has, in the past three years, ceased
or (as a result of the acquisition of the business by the
Purchaser or for any other reason) will cease supplying the
Business or may substantially reduce its supplies to the
Business;
(b) no customer of the Business has, in the past three years,
terminated or materially reduced, or will (as a result of the
acquisition of the Business by the Purchaser or for any other
reason) terminate or materially reduce, its relationship with the
Business.
6.3 Licences and Consents
6.3.1 The Vendor has obtained all necessary Licences and Consents for the
proper carrying on of the Business and is not in breach of any of
their terms or conditions.
6.3.2 Details of all of the licences and consents are set out in the
disclosures and the Vendors knows of no reason why they should not be
capable of being transferred or obtained by the Purchaser without the
necessity for any special arrangement or expense.
6.4 Insurance
6.4.1 All the Assets of an insurable nature are and have at all material
times been insured in amounts representing the full replacement or
reinstatement value of them against fire and other risks normally
insured against by a person carrying on business of the same class as
the Business.
6.4.2 All insurances relating to the Business and the Assets are currently
in full force and effect and nothing has been deliberately done or
omitted to be done which could make any policy of insurance void or
voidable.
6.4.3 Subject to any provision in the Completion Accounts the Debts at the
date hereof will realise their full face value and be good and
collectable in the ordinary course of business.
6.5 Joint Ventures
6.5.1 The Vendor:-
6.5.1.1 is not and has not been a party to any joint venture or
consortium or any partnership arrangements or agreement or any
agreement or arrangement for sharing commissions or other income
related to the Business;
6.5.1.2 does not conduct and has not conducted any part of the
Business through a branch, agency or permanent establishment
outside of Hong Kong.
6.6 Agreements concerning the Business
6.6.1 There have been no arrangements and understandings (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
transfer of the ownership or the letting of any of the Assets or the
provision of finance, goods, services or other facilities to or by the
Vendor or otherwise in any way relating to the Business or the Assets.
6.6.2 compliance with the terms of this Agreement does not and will not
conflict with or result in the breach of 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:
7.1 is incapable of complete performance in accordance with its terms within 6
months after the date on which it was entered into or undertaken or;
7.2 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;
7.3 subject to force majeure could not readily be fulfilled or performed by the
Vendor on time and without undue or unusual expenditure of money and effort
if the Business was not sold or;
7.4 other than in respect of work carried out between the exchange of a
contract and completion of that contract 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 date of Completion or;
7.5 involves or is likely to involve obligations, restrictions, expenditure, or
receipts of an unusual, onerous or exceptional nature and not in the
ordinary course of the Business or;
7.6 other than normal leasing agreements in respect of office equipment is a
lease, loan agreement or a contract for hire or rent, hire purchase or
purchase by way of credit sale or periodical payment or;
6.7 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;
7.8 will require the Purchaser to pay any commission, finder's fees, royalty or
similar payment or;
7.9 in any way restricts the Vendor's freedom to carry on the whole or any part
of the Business in Hong Kong or elsewhere in such manner as it thinks fit.
8. THE BUSINESS CONTRACTS
8.1 Disclosure of contracts
The Business Contracts, the Computer Software Licences, the Customer
Contracts, the Lease Contracts and the Leases (together referred to in this
clause as "the Contracts") constitute all the contracts and other
engagements, whether written or oral, referable to the Business to which
the Vendor is now a party, apart from the contracts of employment of the
employees.
8.2 Nature of Contracts
None of the Contracts :
8.2.1 is of an unusual, abnormal or onerous nature;
8.2.2 is for a fixed term of more than six months;
8.2.3 is of a long term nature (that it is say incapable of performance in
accordance with its terms within six months after the date which it
was entered into or undertaken);
8.2.4 is incapable of termination in accordance with its terms by the
Purchaser on 60 days' notice or less;
8.2.5 is of a loss making nature (that is to say known to have been likely
to result in a loss to the Vendor on completion of performance if the
Vendor had not sold the Business);
8.2.6 is not capable of being readily fulfilled or performed by the
Purchaser on time without undue or unusual expenditure of money or
personnel;
8.2.7 will involve payment by the Purchaser by reference to fluctuations in
the index of retail prices;
8.2.8 was entered into in any way otherwise than in the normal course of
Business.
8.3 The Vendor is not nor (to the best of its knowledge and belief) will it
with the lapse of time become:
8.3.1 in default under any of the Contracts or in respect of any other
obligations or restrictions binding upon it in relation to the
Business nor has it waived any rights or privileges under any of them;
8.3.2 in default under any provisions existing by reason of membership of
any association or body relating to the Business;
8.3.3 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.
8.4 No threat or claim of default under the Contracts and/or the Assets has
been made and is outstanding against the Vendor and there is nothing
whereby any of the Contracts may be terminated or rescinded by any other
party or whereby the terms of them may be worsened or the Business and/or
the Assets prejudiced as a result of anything done or omitted or permitted
to be done by the Vendor.
8.5 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 nor (as far as the Vendor is aware) are there any
circumstances likely to give rise to such a default.
8.7 Subject to the provision in the Completion Accounts the Vendor has not
manufactured or sold products which were or are or will become 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.
9. EMPLOYEES
9.1 Full details in all material respects have been supplied to the Purchaser
and are annexed as Schedule/annexure 2 to the Disclosure Letter to the
Purchaser] as to the Transferring Employees' ages, length of service, rates
of remuneration, bonus, commission, benefits in kind, periods of notice,
pension and other rights under any retirement benefits, life assurance or
hospital insurance scheme of the Vendor. Such details will remain true and
accurate at Completion and the Vendor is not under any legal or moral
commitment to change or vary any of such details and will not prior to
Completion enter into any such commitment. The information contained in the
Second Schedule is true and correct in all material respects. There are no
stock option or other schemes either in operation or proposed whereby any
of the Transferring Employees is or is to be entitled to any shares or to
any commission or remuneration of any sort calculated by reference to the
turnover profit or sales of the Vendor.
9.2 No liability has been incurred by the Vendor and not yet been discharged
for breach of any contract of service or employment or for redundancy
payments or for damages or compensation for dismissal or otherwise or for
failure to comply with any order for reinstatement or re-engagement of any
Transferring Employee engaged in connection with the Business or for the
actual or proposed termination or suspension of employment or variation of
any contract of employment of any present or former director or employee of
the Vendor employed in connection with the Business.
9.3 There are not in existence any contracts of employment between the Vendor
and any of the Transferring Employees nor any consultancy agreements
between the Vendor and any of the Transferring Employees which cannot be
terminated by 3 months' notice or less or (where not reduced in writing) by
reasonable notice without giving rise to any claim for damages or
compensation (other than a statutory redundancy payment or compensation for
dismissal). The Vendor has not given nor received any notice to terminate
any contract of employment of any of the Transferring Employees or any
other person employed in the Business which expires on or after the date of
Completion.
9.4 The Vendor has not offered and will not prior to Completion offer a
contract of employment or for services to any person to be employed in the
Business or as a consultant to the Business.
9.5 Since the Accounting Date no change has been made in the rate of
remuneration, emolument, pension benefit or other terms of employment of
any of the employees.
9.6 No current negotiations for any increase in the remuneration or benefits of
any of the employees are currently or likely within a period of 6 months
after Completion.
10. POWERS OF ATTORNEY
The Vendor has not given any power of attorney or other authority (express,
implied or ostensible) which is still outstanding or effective to any person to
enter into any contract or commitment on its behalf in relation to the Business.
11. STATUTORY REQUIREMENTS
11.1 At the date of this Agreement the Vendor is conducting the Business in all
material respects in accordance with all applicable laws and regulations.
11.2 At the date of this Agreement the Vendor is not party to any agreement or
arrangement which infringes or is registrable, unenforceable or void or
which renders the Vendor liable to civil or criminal proceedings which
would have a material adverse effect on the Business
12. LITIGATION
12.1 All licences, permits, consents, registrations, permission and approvals
required for carrying on the Business now being carried on by the Vendor
have been obtained and are in full force and effect and all reports,
returns and information required by law or as a condition of any licence,
permit, consent, registration, permission or approval to be made or given
to any person or authority in connection with the Business have been made
or given to the appropriate person or authority and so far as the Vendor is
aware there is no circumstance which indicates that any licence, permit,
consent, registration, permission or approval is capable of being revoked
or not renewed.
12.2 The Vendor is not engaged in any litigation or arbitration, criminal or
administrative proceeding whether as plaintiff, defendant or otherwise and
no such proceedings by or against the Vendor in relation to the Business or
Assets or in respect of any of its assets has been threatened or is to the
best of the Vendor's knowledge and belief pending or expected and to the
best of the Vendor's knowledge and belief there is no fact or circumstance
which could give rise to any such proceedings.
12.3 The Vendor is not a party or subject to the provisions of any judgment or
judicial order or decree whether or not contested or subject to appeal in
relation to the Business.
12.4 The Vendor has not and to the best of the Vendor's knowledge and belief is
not alleged to have committed of is alleged to be liable for any criminal
illegal unlawful ultra vires or statutory duty.
13. INTELLECTUAL PROPERTY
13.1 The Vendor is the beneficial owner, registered proprietor or Licensee of
the Intellectual Property Rights.
13.2 To the best of the Vendor's knowledge, information and belief, each of the
Intellectual Property Rights is valid and enforceable. No act has been done
or omission omitted whereby any of them ceased or might cease to be valid
or enforceable.
13.3 The Business does not and is not likely to infringe any patent, registered
design, trademark, copyright or other intellectual property right of any
other person (or would not do so if the same were valid).
13.4 The Vendor does not require and has not been granted any licence in
relation to any Intellectual Property.
13.5 No right has been granted to any person to do anything which would or might
otherwise infringe any of the Intellectual Property Rights.
13.6 The Vendor has not (except in the normal course of Business) disclosed or
permitted to be disclosed or undertaken or arranged to disclose to any
person other than the Purchaser any of its know-how, trade secrets,
confidential information, price lists or lists of customers or suppliers
relating to the Business.
14. PROPERTIES
14.1 Use of Properties
14.1.1 The Vendor is in occupation of the Properties for the purposes of
the Business.
14.1.2 The Vendor does not use or occupy any Properties in connection
with the Business other than the Properties.
14.2 Encumbrances
14.2.1 Save as specifically stated in Schedule 5 the Vendor's
interest in the Properties are free from any mortgage,
debenture, charge, lien or other encumbrance.
14.2.2 The Properties are not subject to any outgoings other than
rent, rates, service charges, management fees, water rates and
electricity charges.
14.2.3 All restrictive covenants to which the leases are subject have
been disclosed in the disclosures, they have been fully
observed and performed and any payments in respect of them due
and payable have been duly paid.
14.3 Statutory obligations
14.3.1 The Vendor has complied with and is complying with all applicable
statutory and bye law requirements with respect to the Properties.
14.3.2 There is no outstanding and unobserved or unperformed obligation in
respect of the Properties necessary to comply with the requirements
whether formal or informal, competent authority exercising statutory
or delegated powers.
14.4 Adverse order
14.4.1 There are no compulsory purchase notices, orders or resolutions
affecting the Properties and there are no circumstances likely to lead
to any being made.
14.4.2 There are no closing, demolition or clearance order, enforcement
notices or stop notices affecting the Properties and there are no
circumstances likely to lead to any being made.
14.5 Condition of the Properties
14.5.1 The buildings and other structures on the Properties are in good and
substantial repair and fit for the purpose for which they are used.
14.5.2 Each of the Properties enjoys the main services of water, drainage,
electricity and gas.
14.6 Additional Leasehold Matters
14.6.1 The Vendor has paid the rents and observed and performed the
covenants on the part of the Tenant and the conditions contained in
the Leases and the last demand (or receipt for rent if issued) was
unqualified.
14.6.2 All licences consents and approvals required from the Landlords and
any superior Landlords under the Leases have been obtained and the
covenants on the part of the Tenant contained in the licences,
consents and approvals have been duly performed and observed.
14.6.3 There are no rent reviews under the Leases or any superior leases in
progress.
14.6.4 There is no outstanding and unobserved or unperformed any obligation
necessary to comply with any notice or other requirements given by the
Landlords or any superior landlords under the Leases or any superior
leases.
14.6.5 There is no obligation to reinstatement of the Properties by
removing or dismantling any alteration made to it by the Vendor and
any predecessor to the Vendor.
15. MATERIAL INFORMATION
15.1 To the best of the Vendor's knowledge information and belief there is:
15.1.1 no fact or matter material to the value of the Assets or materially
affecting the aggregate value of such Assets; and
15.1.2 no fact or matter materially affecting the trading of 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 purchase such Assets at the aggregate
price or the terms upon which the purchase is made (on the basis that
the Purchaser will use such Assets for the purpose of carrying on the
Business) and for the purposes of Clause 14.1 the aggregate of any
claims under this warranty which total less than HK$78,000 shall not
be considered material.
15.2 The information contained in the recitals and the schedules to this
Agreement and the Disclosure Letter and all other information in writing
given by the Vendor and 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 property enquiries was
when given and will at Completion 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.
16. 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 or
contracted to be 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 any such Products or services have been
delivered or supplied by it in connection with the Business.
SCHEDULE 2
(Transferring Employees)
1. Hong Kong Office
(a) Joven Lee Raymundo
(b) John Richmond
(c) Peter Hallett
(d) Eddie Chung Ming Fai
(e) Wan Yeok Seng
(f) Serman Ma Chui Sing
(g) Chris Ngow Yen Kong
(h) Fiana Yam Man Ni
2. Beijing Office
(a) Derek Chi Geo Ming
(b) Alan Zheng Qin Li
(c) Richard Yan Xu Xin
(d) Xin Yue
(e) Tracy Shu Qing
SCHEDULE 3
(Agreed Liabilities)
The Assumed Liabilities consist of those known Liabilities reflected in the
accounting records of the Seller to be assumed by the purchaser pursuant to this
Agreement, consisting only of the following:-
(i) those known and absolute Liabilities reflected in the Acquired
Business Balance Sheet, effected through the operation of the
Acquired Business in the ordinary course, and also adjusted to
reflect the cancellation of intercompany accounts as between
the Vendor and any affiliate of Eltrax Systems or the Seller;
(ii) those known and absolute Liabilities that have arisen (or that
arise) and have been incurred (or that are incurred) in the
ordinary course of business after the date of the Balance
Sheet Date and before the date of the updated balance sheet
delivered at Closing;
(iii) those known and absolute 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 updated
balance sheet delivered at Completion.
See attached bundle
SCHEDULE 4
(Debts)
SCHEDULE 5
(The Properties)
(A) Office Premises
(1) 2nd Floor, VIP Commercial Centre, Nos.116-120 Canton Road, Kowloon,
Hong
Kong
(2) No.837, North Block, Chong Sing Plaza, No.6 Suen Mo Mun Outer Street,
Beijing
(B) Residential Premises
(1) Flat C, 2nd Floor, No.12 Observatory Road (Front), Tsim Sha Tsui,
Kowloon
(2) Flat B, 5th Floor, No.12 Observatory Road (Front), Tsim Sha Tsui,
Kowloon
(3) Flat A, 2nd Floor, No.10 Observatory Road (Front, Tsim Sha Tsui,
Kowloon
(4) Flat C, 2nd Floor, No. 12 Observatory Road (Rear), Tsim Sha Tsui,
Kowloon
SCHEDULE 6
(Provisions relating to the Properties)
1. The Properties are sold for the unexpired residue of the terms of the
Leases and at the rents reserved and subject to the covenants on the
part of the tenant and the conditions which they contain and with
vacant possession on completion.
2. Copies of the Leases have been supplied to the Purchaser, which shall
be deemed to purchase with full knowledge of their contents and shall
raise no requisition, enquiry or objection in relation to them.
3. The assignments of the Leases shall be in consideration of these
presents and a covenant on the part of the Purchaser, as from the date
of the assignment of the Leases, to pay the rent reserved by the Leases
and to observe and perform the covenants on the part of the tenant and
the conditions contained in the Leases and to indemnify the Vendor
against all claims, demands, proceedings, damages, costs and expenses
arising out of or incidental to their breach, non-observance or
non-performance.
4.1 The Vendor shall use all reasonable endeavours to obtain, and will pay
the incidental costs for the Landlords' Consents and the Purchaser
shall co-operate in obtaining the licences by supplying such
information and references as may reasonably be required.
4.2 The Vendor will as soon as practicable following receipt notify the
Purchaser in writing of the issue of the Landlords' Consents.
4.3 The Purchaser will offer to covenant direct with the Landlords, with
effect from the date of the respective assignments of the Leases, to
pay the rents and observe and perform the covenants contained in the
Leases.
5. The following provisions of this paragraph shall apply with respect to
the period from the Completion Date to the dates of the respective
assignments (or to the date of withdrawal of the Properties from the
sale under paragraph 8, as the case may be).
5.1 The Purchaser may enter the Properties and occupy them as licensee of
the Vendor and the Vendor shall hold them upon trust for the Purchaser
according to the terms of this Agreement.
5.2 Notwithstanding the capacity of the Purchaser as licensee of the Vendor
with respect to the occupation of the office Properties the Purchaser
may carry on business on it for its own account.
5.3 The Purchaser shall be responsible for and if necessary reimburse the
Vendor against all rates, water rates, insurance premiums and other
outgoings of an annual or recurring nature (apportioned on a day to day
basis) and also for all gas and electricity consumed on the Properties.
5.4 The Purchaser shall pay to the Vendor an amount equal to the rents
reserved by the Leases as and when the rent falls due from the Vendor
and the Vendor agrees to pay such rent to the immediate Reversioners
accordingly and shall act or conduct itself in such a manner that the
covenants (other than for the payment of rent and against alienation
without prior consent) on the part of the tenant contained in the
Leases are fully observed and performed and shall indemnify the Vendor
against the breach, non-observance or non-performance of those
covenants (excluding the covenant against alienation without prior
consent).
5.5 The Purchaser shall bear all third party public liability and
employer's liability risks attached to the occupation and use of the
Properties and shall indemnify the Vendor against them.
5.6 The assignment of the Leases shall be completed within 5 working days
after the Landlords' Consents have been obtained.
5.7 If the Properties are withdrawn from the sale the Purchaser shall
promptly deliver up vacant possession of the Properties to the Vendor
and will cease to be the Vendor's licensee and the Vendor shall cease
to hold the Properties on trust for the Purchaser under the terms of
this Agreement.
6. If the Vendor is unable to obtain Landlord's Consent in respect of any
of the Properties after using best endeavours so to do the Vendor shall
not be obliged to apply to the Court for a declaration that the
Landlord's Consent is being unreasonably withheld and the Properties so
affected shall be withdrawn from the sale and neither party shall have
any claim against the other in damages or for the costs of or
incidental to the Properties so affected prior to withdrawal.
7. Until actual completion the Vendor shall pay all rents, service charge,
insurance premium and other sums due to the Landlords under the Leases
and shall keep the Purchaser indemnified from and against all costs,
claims, damages, liabilities, expenses or losses arising on account of
non-payment thereof.
8. The Vendor shall indemnify the Purchaser against the costs of and all
claims liabilities and expenses arising in relation to the carrying out
of any works or other repairs under the Leases to ensure full
compliance with the tenants' repairing obligations up to an amount of
HK$100,000 identified by the Landlord following an inspection to be
made by the Landlord which the Vendor and Purchaser shall use their
best endeavours to ensure occurs as soon as practically possible after
the Completion Date.
EXECUTED by )
for and on behalf of ELTRAX SYSTEMS )
PTY LIMITED in the presence )
of:- )
EXECUTED by )
for and on behalf of AREMISSOFT (HK) )
CORPORATION LIMITED )
in the presence of:- )
EXECUTED by )
for and on behalf of VERSO )
TECHNOLOGIES, INC in the )
presence of:- )
EXECUTED by )
for and on behalf of ELTRAX )
SYSTEMS INC in the presence of:- )
EXECUTED by )
For and on behalf of AREMISSOFT )
CORPORATION in the presence of:- )