ASSET PURCHASE AND SALE AGREEMENT
Agreement made this 25th day of March, 2002 by and between ePlus
Technology, Inc., a Virginia corporation, with a principal place of business at
400 Herndon Parkway, Herndon, VA 20170 ("Buyer") and Elcom Services Group, Inc.,
a Delaware corporation, with a principal place of business at 10 Oceana Way,
Norwood, MA 02062 (the "Seller"), elcom, inc., a Delaware corporation, with a
principal place of business at 10 Oceana Way, Norwood, MA 02062 ("elcom") , and
Elcom International, Inc., a Delaware corporation, with a principal place of
business at 10 Oceana Way, Norwood, MA 02062 ("EII"). Collectively, the Seller,
elcom and EII are referred to herein as the "Elcom Group".
RECITALS
A. The Elcom Group is a leading provider of e-procurement and e-marketplace
software solutions and services.
B. The Buyer is a leading reseller of computer information technology
products and services, e-procurement, content management, and asset management
software, leasing, and IT professional services.
C. The Elcom Group desires to sell to Buyer and the Buyer desires to
purchase from the Seller the Assets and the Business.
D. For a period of five years from the Closing, the Elcom Group shall cease
to act directly or indirectly as a reseller of computer information technology
products and services, as provided herein.
E. EII is a publicly traded company and is in compliance with all
applicable SEC and NASD rules and regulations.
F. Capitalized terms used in this Agreement are defined in Section 1
hereof.
1. Definitions.
1.1. "Ancillary Documents": The Managed Services Agreement, the Middleware
Software License Agreement, the Registration Rights Agreement, the Warrant, the
Preferred Supplier Agreement.
1.2. "Assets": the customer lists, the Business, contracts, equipment,
vehicles, leases of property and interests in real estates set forth on Schedule
1.2; provided for the avoidance of doubt that the following are expressly
excluded from such definition: cash, securities held in any entity, accounts
receivable invoiced as of the Closing, as such term is defined in Section 7.1
hereof, and corporate minute books and stock transfer records.
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1.3. "Business": the information technology hardware products reseller and
services activities carried on by the Seller to its information technology
hardware products and services customers from and after January 1, 2002 to the
date of Closing.
1.4. "Excluded Liabilities": Except for Liabilities, all liabilities,
obligations or commitments of Sellers for (i) any state, federal, sales, use,
goods and services, excise or custom taxes, (ii) any claim with respect to any
"employee benefit plan", as such term is used in section 3(3) of ERISA, and any
bonus, incentive, or deferred compensation, severance, retention, change of
control, or stock option plan, (iii) the termination of any employee benefits or
employee benefit plan on or prior to the Closing, (iv) the termination of
employment of any employee of the Seller on or prior to the Closing, (v) any
legal, accounting, transactional, consultant, brokerage or other expense
relating to the negotiation and consummation of the transactions contemplated by
this Agreement by or on behalf of the Seller (except for any accounting expenses
Buyer requests the Elcom Group to undertake and which the Elcom Group agrees to
undertake), or (vi) any liability, obligation or commitment of any kind caused
by or arising from the conduct or operation of the Business prior to the
Closing.
1.5 "Liabilities": all liabilities of Seller which are listed on Schedule
1.5, and Seller's liabilities with respect to Transferred Employees as provided
in Section 8.1. Buyer assumes no liability of Seller not set forth herein.
1.6 "Managed Services Agreement": the Agreement in substantially the form
attached hereto as Schedule 1.6.
1.7. "Purchase Price": Two million three hundred thousand dollars
($2,300,000) to be paid by wire transfer at Closing.
1.8 "Registration Rights Agreement": the Agreement in substantially the
form attached hereto as Schedule 1.8.
1.9 "Middleware Software License Agreement": the Agreement in substantially
the form attached hereto as Schedule 1.9.
1.10 "Warrant": the Agreement in substantially the form attached hereto as
Schedule 1.10.
1.11 "Preferred Supplier Agreement": the Agreement in substantially the
form attached hereto as Schedule 1.11.
2. Transaction.
2.1 Upon the terms and subject to the conditions set forth in this
Agreement, at the Closing, the Sellers shall sell, transfer, convey, assign and
deliver to the Buyer, and the Buyer shall purchase or acquire from the Sellers,
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all of the right, title and interest in and to the Assets free and clear of all
liens and encumbrances, except for the assets subject to leases and the real
property.
2.2 The Buyer shall assume and agree to pay, honor and discharge when due
all of the Liabilities.
2.3 Upon the terms and subject to the conditions set forth in this
Agreement, the Buyer shall not assume any of the Excluded
Liabilities.
2.4 EII shall issue to the Buyer a warrant which gives the Buyer the right
to purchase, on the terms and conditions set forth in the Warrant, three hundred
thousand shares (300,000) of common stock of EII. The resale by the Buyer of the
common stock issuable upon exercise of the Warrant shall be subject to the
Registration Rights Agreement.
3. Warranties and Representations of the Elcom Group. The Elcom Group
jointly and severally warrants and represents to Buyer:
3.1. Each of the Elcom Group is a duly organized and a validly existing
Delaware corporation in corporate and tax good standing in every jurisdiction
where its business so requires. EII owns all of the equity securities of Seller.
Seller owns all of the outstanding equity securities of elcom. Each member of
the Elcom Group has obtained all necessary corporate approvals for the execution
and performance of each of this Agreement and the Ancillary Documents, as
applicable, and has full legal right and power so to do. Each of this Agreement
and the Ancillary Documents has been duly executed and delivered by each member
of the Elcom Group, as applicable, and is their respective valid and binding
obligations, enforceable in accordance with its terms. The execution and
performance of each of this Agreement and the Ancillary Documents will not
violate or constitute a default under any agreement, charter, by-law, court
order, law, rule, regulation, judgment or injunction by which any member of the
Elcom Group are bound.
3.2. Except in connection with the filing of a registration statement in
connection with the Registration Rights Agreement and except as have been
obtained by any member of the Elcom Group, no governmental approval or other
consent or EII shareholder approval is required to be obtained or made by any
member of the Elcom Group in connection with the execution and delivery of this
Agreement or the Ancillary Documents to which it is a party, or the consummation
of the transactions contemplated hereby or thereby.
3.3. All the Assets, except for assets subject to leases and the real
property, are owned by Seller or elcom with good and marketable title, and are
not subject to security interests, liens, encumbrances or claims by third
parties.
3.4. No member of the Elcom Group is subject to or threatened by any
litigation, investigation, administrative procedure, arbitration or similar
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proceeding that (i) are not generally in the ordinary course of business, (ii)
questions the validity of, or the obligations of any member of the Elcom Group
under, this Agreement or any Ancillary Document, (iii) seeks to impede, enjoin
or invalidate the transactions contemplated by this Agreement or any Ancillary
Document, or (iv) to the knowledge of the members of the Elcom Group, would have
or result, in any case or in the aggregate, in a material adverse effect to the
Business or the Assets.
3.5. No member of the Elcom Group has any agreement, written or oral, with
any broker or finder requiring any payment in connection with this Agreement.
3.6 Sellers own no real property. Schedule 3.6 includes a complete list of
the real property leased by Sellers and included as an Asset hereunder ("Leased
Real Property"). Seller has a valid leasehold interest in the Leased Real
Property and such interest shall be in full force and effect at Closing.
3.7 Except as described in Schedule 3.7, Sellers are not a party to or
bound by any lease, agreement, contract or other commitment which involves the
payment or receipt of more than $10,000 per year (collectively, the
"Contracts"). Each Contract is, except as the same may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws now or
hereafter in effect relating to the enforcement of creditors' rights generally
or by principles governing the availability of equitable remedies, (a) a valid
and binding obligation of Seller or elcom, (b) is in full force and effect and
enforceable against each member of the Elcom Group, as applicable, and (c) there
does not exist any violation, breach or default, or any event or condition that
would constitute a violation or breach or a default under any such Contract by
the Seller or elcom. Seller and elcom has performed all material obligations
required to be performed by it to date under the Contracts. All Contracts are in
the name of Seller or elcom.
3.8 Other than as set forth in Schedule 8.1, there are no plans of any
member of the Elcom Group in effect for pension, profit sharing, deferred
compensation, severance pay, bonuses, stock options, stock purchases, or any
other form of retirement or deferred benefit, or for any health, accident or
other welfare plan, as to which Buyer will become liable as a result of the
transactions contemplated hereby.
3.9 There have been no private or governmental claims, citations,
complaints, notices of violation or letters made, issued to or threatened
against any member of the Elcom Group by any governmental entity or private or
other party for the impairment or diminution of, or damage, injury or other
adverse effects to, the environment or public health resulting, in whole or in
part, from the use or operation of the Leased Real Property. Seller has duly
complied with, and, to the knowledge of each member of the Elcom Group, the
Leased Real Property is in compliance with, the provisions of all federal, state
and local environmental, health and safety laws, codes and ordinances and all
rules and regulations promulgated thereunder.
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3.10 To the knowledge of each member of the Elcom Group, Seller is not in
violation with respect to the Assets of any law, order, ordinance, rule or
regulation of any governmental authority.
3.11 From and after the Closing, the Elcom Group's current intention is to
concentrate its resources on the development, licensing, maintenance and
provision of services relating to its proprietary, self-service electronic
procurement and electronic marketplace Internet and intranet-based purchasing
systems which enable the conduct of interactive electronic commerce for
businesses.
3.12. The Assets sold to Buyer hereunder have a net book value of seventy
seven thousand two hundred forty six dollars and fifty cents ($77,246.50) and
such net book value represents less than 1% of the total assets of EII and its
subsidiaries as of the date immediately preceding the date of this Agreement.
3.13 The Purchase Price represents less than 10% of EII's market
capitalization as of the date immediately preceding the date of this Agreement,
based on the last sale price of the common stock of EII on the Nasdaq National
Market as quoted in The Wall Street Journal.
3.14 The net earnings of EII have been negative for the past three years as
disclosed in EII's SEC financial reporting forms.
3.15 To the knowledge of the Elcom Group, the transaction contemplated
herein complies with all applicable SEC and NASD rules and regulations. EII
specifically represents that the approval of a majority of its shareholders is
not required.
4. Warranties and Representations of Buyer. Buyer warrants and represents
to the Elcom Group:
4.1. Buyer is a duly organized and a validly existing Virginia corporation
in corporate and tax good standing in every jurisdiction where its business so
requires. Buyer has obtained all necessary corporate approvals for the execution
and performance of each of this Agreement and the Ancillary Documents and has
full legal right and power so to do. Each of this Agreement and the Ancillary
Documents has been duly executed and delivered by Buyer and is its valid and
binding obligation, enforceable in accordance with its terms. The execution and
performance of each of this Agreement and the Ancillary Documents does not and
will not violate or constitute a default under any agreement, charter, bylaw,
court order, judgement or injunction to which Buyer is a party or by which it is
bound.
4.2. Each of this Agreement and the Ancillary Documents is the legal, valid
and binding obligation of Buyer, enforceable in accordance with its terms.
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4.3. Buyer has no written or oral agreement with any broker or finder
requiring any payment in connection with this
Agreement.
4.4. No governmental approval or other consent or corporate action is
required to be obtained or made by the Buyer in connection with the execution
and delivery of this Agreement or the Ancillary Documents to which it is a
party, or the consummation of the transactions contemplated hereby or thereby.
5. Conduct of Business. From this date until Closing:
5.1. Seller shall conduct the Business only in the ordinary course, and in
such manner as shall not cause any warranty or representation contained in
Section 3 above to become false.
5.2. Seller shall afford full access at all reasonable times, and in a
manner so as not to interfere with the normal business operations of Seller, to
Buyer and its duly appointed representatives to all information concerning the
Assets and personnel of Seller.
6. Buyer Confidentiality Obligation. From the date hereof until Closing,
Buyer shall maintain in confidence the nonpublic business secrets and
proprietary information of Seller, and disclose same only to its personnel and
advisers as it may determine to be reasonably necessary to effect this
Agreement. Should Closing not occur, Buyer and Seller agree to be bound by the
terms and conditions of the Non-Disclosure Agreement dated February 27, 2002.
7. Closing.
7.1 Buyer shall purchase and Seller shall sell all of Seller's right, title
and interest in and to the Assets, subject to the Liabilities, at 10:00AM Boston
time, Friday, March 29, 2002, at the Sellers' offices (the "Closing"); provided,
however, in no event shall Buyer assume any of the Excluded Liabilities. At the
Closing, all transactions set forth below shall be effected. No transaction
shall be deemed consummated unless all such transactions are consummated. It is
a condition of the obligation of Buyer and Seller to consummate the Closing that
the obligations of the other at Closing shall have been performed, unless
waived. At Closing:
7.1.1. Buyer shall deliver to the Elcom Group, and the Elcom Group shall
deliver to Buyer, certificates that all warranties and representations herein
are true and correct in all material respects at Closing. The Elcom Group shall
specifically include in such certificate a statement that from and after the
Closing, the Elcom Group's current intention is to concentrate its resources on
the development, licensing, maintenance and provision of services relating of
its proprietary, self-service electronic procurement and electronic marketplace
Internet and intranet-based purchasing systems which enable the conduct of
interactive electronic commerce for businesses.
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7.1.2. Sellers shall deliver to Buyer certified copies of resolutions of
each of the Elcom Group's Board of Directors authorizing the execution and
performance of this Agreement.
7.1.3. The Purchase Price shall be paid by Buyer to Sellers by wire
transfer in accordance with Sellers' instructions.
7.1.4. Sellers shall have delivered to Buyer all other instruments and
documents of transfer reasonably requested by Buyer to pass title and possession
of the Assets.
7.1.5. The Buyer and the Seller shall execute and deliver the Managed
Services Agreement.
7.1.6. The Buyer and each member of the Elcom Group shall execute and
deliver the Middleware Software License Agreement.
7.1.7. The Buyer and EII shall execute and deliver the Warrant and the
Registration Rights Agreement.
7.1.8. The Buyer and elcom shall execute and deliver the Preferred Supplier
Agreement.
7.1.9 A mututally agreed allocation of the Purchase Price (including the
Liabilities) and any other relevant items in accordance with an allocation
schedule.
7.1.10 An agreement between Tech Data, Sellers, and Buyer regarding the
operation of the Business during the Managed Services Agreement, and/or an
agreement between Buyer and Tech Data for the assignment of the outsourcing
agreements referred to in Schedule 3.8 hereof.
7.1.11 A Bill of Sale and an Assignment and Assumption executed and
delivered by elcom, Seller and Buyer.
8. Post-Closing Matters.
8.1 Immediately prior to the Closing, the Sellers shall terminate the
employment of each of the employees named on Schedule 8.1, and effective as of
the Closing, the Buyer shall offer employment to each employee named on Schedule
8.1 (i) at a position comparable to such employee's position with the Seller
immediately prior to the Closing, (ii) at wage or salary levels and bonus or
other incentive compensation amount, as applicable, in compliance with Buyer's
compensation schedule with respect to such employee, and (iii) with its standard
employee benefits at Closing, with length of service with the Seller, up to the
Closing, to be recognized by the Buyer for purposes of Buyer's benefit plans
(other than accrual of benefits) as service with the Buyer. The employees named
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on Schedule 8.1 who accept such offers of employment by the Buyer effective the
Closing shall be referred to in this Agreement as the "Transferred Employees".
Effective as of the Closing, the Buyer shall assume the liabilities and
obligations of the Sellers in respect of the Transferred Employees for vacation
and sick pay, but only to the extent such vacation and sick pay relate to
services rendered in the ordinary course of business consistent with past
practice. The Buyer shall assume and be solely responsible for the severance and
other termination payments, and continued health care coverage as described in
section 4980B of the Code ("COBRA"), incurred by the Seller in connection with
the actual or constructive termination of employment with the Seller (including
in connection with the consummation of the transactions contemplated by this
Agreement and the Ancillary Documents) of any employee named on Schedule 8.1.
The Seller shall remain solely responsible for any and all liabilities in
respect of any employees not named on Schedule 8.1.
8.2 The Buyer shall provide the Transferred Employees coverage under any
welfare and fringe benefit plans, programs, policies or arrangements established
by the Buyer in accordance with Section 8.1 for such Transferred Employees
("Buyer Welfare Plan"); provided that, the Seller shall remain solely
responsible for any and all benefit liabilities to or in respect of the
Transferred Employees or their beneficiaries or dependents relating to or
arising in connection with any claims relating to or based upon an occurrence
prior to the Closing for life, disability, accidental death or dismemberment,
medical, dental, hospitalization, other health or other welfare or fringe
benefits or expense reimbursements. The Buyer shall waive any preexisting
condition restrictions for any Transferred Employee and his or her dependents
under Buyer's Welfare Plan and shall credit such Transferred Employee with any
co-payments and deductible contributions made by such Transferred Employee for
the applicable plan year in which the Closing occurs. From and after the
Closing, the Seller shall remain solely responsible for any and all benefit
liabilities relating to or arising in connection with the requirements of COBRA
to provide continuation of health care coverage under any plan in respect of (i)
the employees, other than any employee named on Schedule 8.1 and their covered
dependents, and (ii) to the extent related to a qualifying event occurring
before the Closing, Transferred Employees and their covered dependents.
8.3 To assure to Buyer the full benefit of Business, each member of the
Elcom Group undertakes that they shall not disclose to another person or itself
use for any purpose, and shall use all reasonable endeavors to prevent the
publication or disclosure of, information concerning the Business or affairs of
the clients or customers of the Business, of which it has knowledge except for
disclosure (i) required by law or applicable regulation or (ii) on a
confidential basis to its professional advisers or (iii) of information that has
come into the public domain through no breach of this Agreement.
8.4 Neither Buyer nor any member of the Elcom Group, for twenty four (24)
months after Closing, shall interfere with or entice away from the other any
employee of such other party, unless either party waives its rights hereunder;
provided, however, Buyer shall not be subject to such restriction with respect
to any employees identified on Schedule 8.1. For purposes of this Agreement, job
postings, newspaper advertisements, and any party's personnel's response to job
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inquiries unilaterally made by such personnel shall not constitute an
interference or enticement. If Buyer notifies Elcom Group that an employee of
Elcom Group is critical to the Business, Buyer and Elcom Group agree to
negotiate in good faith a consulting arrangement whereby Elcom Group will
provide, at cost plus direct expenses, the services of said employee during a
transition period not to exceed 6 months nor more than 40 hours per week for the
first month, 30 hours per week for the second month, and 20 hours per week
thereafter.
8.5 Notwithstanding anything to the contrary in this Agreement: This
Agreement shall not constitute an agreement to transfer, convey or assign any
Contracts if a transfer, conveyance or assignment, or an attempt to make a
transfer, conveyance or assignment, without the consent of a third party
(including any governmental authority) would constitute a breach or violation
thereof or in any way adversely affect the rights of the transferee, conveyee or
assignee thereof until such consent is obtained; and if any such required
consent is not obtained on or prior to the Closing, the Seller shall use
commercially reasonable efforts to obtain such consent thereafter, and the
Seller and the Buyer shall cooperate with each other to effect any reasonable
arrangement designed to provide to the Buyer the benefit of, and to permit it to
assume the liabilities and obligations under, any such Contracts. In the event
any Contract cannot be assigned to Buyer, Seller shall allow Buyer to obtain the
benefit of the Contract in Seller's name and each shall serve as the others'
agents for such purpose; provided that Buyer shall indemnify, defend and hold
Seller harmless from and against any and all claim, demand, action, damage,
loss, cost, interest, liability, fee or expense, including without limitation
attorney's fees, which the Seller may suffer or incur in connection therewith.
8.6 From the date of Closing until the fifth anniversary thereof, no member
of the Elcom Group shall resell information technology hardware products or
provide associated services relating thereto to the customers identified in
Schedule 8.6. Further no member of the Elcom Group shall receive an agent fee
from a reseller of information technology hardware products for the sale by such
agent of any information technology hardware products or services to the
customers identified in Schedule 8.6, nor shall it enter into any agreement
designed to subvert the spirit of this paragraph. Notwithstanding the foregoing,
nothing contained herein shall restrict any member of the Elcom Group from
selling or licensing any of its technology products, other than SalesTrak, to a
reseller of information technology hardware products or services or to any of
the customers identified in Schedule 8.6. In addition, no member of the Elcom
Group shall be prohibited from receiving fees from an eProcurement marketplace
set up by a marketmaker using elcom technology. Elcom Group will keep its list
of customers as disclosed on Schedule 8.6 confidential and not disclose
customers to such resellers.
8.7 On and after the date of Closing, the Seller shall afford promptly to
the Buyer and its representatives access to its books and records, employees and
auditors to the extent necessary or useful for the Buyer in connection with any
third party audit, investigation, dispute or litigation or any other reasonable
business purpose relating to the Business and the Assets. Any such access by the
Buyer shall (i) be upon reasonable notice and at reasonable times during the
normal business hours of Seller, (ii) shall not unreasonably interfere with the
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conduct of the business of the Seller, (iii) be at the Buyer's expense and (iv)
shall be subject to appropriate restrictions for classified or privileged
information.
8.8 Following the Closing, the parties shall at their own expense, execute
and deliver, or cause to be executed and delivered, such additional reasonable
instruments, documents, conveyances or assurances and take such other actions as
may be reasonably necessary, or otherwise reasonably requested by the other
party, to render effective the consummation of the transactions contemplated by
this Agreement and the Ancillary Documents or otherwise carry out the intent and
purposes of this Agreement and the Ancillary Documents.
8.9 The parties agree that the terms and conditions of Section 9 of the
Managed Services Agreement shall continue in force after the termination of the
Managed Services Agreement.
9. Survival and Indemnity.
9.1. The warranties and representations set forth herein shall survive for
twelve (12) months after Closing.
9.2 Each member of the Elcom Group hereby jointly and severally defend,
indemnify and hold harmless Buyer, and Buyer hereby defends, indemnifies and
holds harmless each member of the Elcom Group jointly and severally, of and from
any "Claim" which may be asserted against such indemnified party by reason of
any actual or alleged breach of warranty, representation or covenant contained
in this Agreement; provided, however, that a party shall only be required to
defend, indemnify and hold harmless the other party when the aggregate amount of
all Claims (the "Aggregate Claims"), shall exceed fifty thousand dollars
($50,000), in which event the indemnifying party shall be liable for the full
amount of the Aggregate Claims, including such fifty thousand dollars ($50,000),
subject to the remaining provisions of this section. "Claim" means any claim,
demand, action, damage, loss, cost, interest, liability, fee or expense,
including without limitation attorney's fees, which the indemnitee may suffer or
incur, including without limitation any claim asserted against Buyer for any
Excluded Liability.
9.3 The indemnifying party shall not be liable for indemnification under
this section, unless notice of the Claim on which such right to indemnification
is based is given in writing pursuant to the notice provisions contained herein
reasonably promptly after the indemnitee shall become aware of the Claim, and,
in any event, adequate to permit timely defensive action, and if such notice is
not so given within a reasonable time after indemnitee becomes aware of such
Claim, indemnitee shall have no right of indemnification with respect to such
Claim.
9.4 Indemnitee shall permit the indemnifying party to assume the defense of
any such Claim or litigation resulting therefrom (and to prosecute by way of
counterclaim or third-party complaint any claim against such third party arising
out of or relating to such Claim), provided that counsel selected to conduct the
defense of such Claim or litigation shall be reasonably satisfactory to
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indemnitee or its legal counsel. After such assumption of the defense by the
indemnifying party, the indemnifying party shall not be liable hereunder for any
legal or other expenses subsequently incurred by the indemnitee in connection
with such defense, but the indemnitee may participate in such defense at its
expense. The refusal so to permit the indemnifying party to assume such defense
by such counsel shall relieve the indemnifying party of its indemnification
obligations hereunder in respect of such Claim. No settlement of any Claim or
litigation by the defending party shall be made without the express written
consent of the other party, which consent shall not be unreasonably withheld.
The indemnifying party shall not, except with the written consent of the
indemnitee, consent to entry of any judgment or enter into any settlement which
does not include, as an unconditional term thereof, the giving by the claimant
or plaintiff to the indemnitee an unconditional release from all liability in
respect of such Claim or litigation. If the indemnifying party shall assume such
defense, the indemnitee shall fully cooperate with the indemnifying party and
grant the indemnifying party reasonable access to such books, records and
information as may be necessary for such defense without charge; provided,
however that the indemnifying party shall bear all costs of reviewing and
compiling such books, records and information, including duplicating expenses
and legal feels.
9.5 The maximum aggregate amount of indemnification to which an indemnitee
shall be entitled hereunder shall be the Purchase Price.
10. Conditions Precedent.
10.1 The obligation of the Buyer to consummate the transactions
contemplated by this Agreement shall be subject to the fulfillment, or waiver by
the Buyer, on or prior to the Closing of each of the following conditions:
10.1.1 The Buyer shall have received a certificate of an executive officer
of the Seller, as of the date of the Closing, certifying that the
representations and warranties of the Seller as set forth in Section 3 hereof
are true and correct in all material respects.
10.1.2 The Buyer shall have received an opinion of Calfee, Halter &
Griswold LLP, substantially in the form of Schedule 10.1.2 or with such changes
thereto as are reasonably satisfactory to the Buyer.
10.1.3 The Buyer shall have completed its due diligence of the Seller to
its satisfaction in its sole discretion and so certify to Seller in writing.
10.1.4 The parties shall have executed and delivered a version of each of
the Managed Services Agreement, the Middleware Software License Agreement, and
the Preferred Supplier Agreement satisfactory to the parties.
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11. Termination.
11.1 If Seller has materially breached any of the warranties and
representations contained in Section 3 of this Agreement or if any of the
conditions set forth in Section 10 have not been fulfilled or waived on or prior
to the Closing, Buyer may terminate this Agreement by delivering written notice
thereof to Seller any time prior to Closing.
11.2 If this Agreement is terminated, it shall become null and void and of
no further force and effect except that the confidentiality obligations of Buyer
set forth herein shall survive.
12. General Provisions.
12.1. Each party shall pay its own legal, accounting and other expenses.
12.2. No waiver, amendment or termination shall be effective unless in
writing signed by the party to be charged. No waiver in one instance shall
constitute a waiver in any other. All notices shall be in writing and delivered
in hand or sent by registered or certified mail, return receipt requested, or by
overnight Federal Express at the addresses set forth above (notification to any
member of the Elcom Group in care of Seller) to the attention of the persons
signing this Agreement below. Copies of all notices sent to any member of the
Elcom Group shall be sent to the attention of the General Counsel of Seller at
the address set forth above.
12.3. This Agreement shall be governed under the laws of the Commonwealth
of Massachusetts without regard to application of conflict of laws principles.
12.4. Any claim or controversy arising out of or relating to this
Agreement, or the breach thereof, shall be resolved by non-binding mediation to
be conducted in Washington, D.C. by one (1) mediator either selected by
agreement of the parties or in accordance with and subject to the Commercial
Mediation Rules of the American Arbitration Association then in effect. In the
event that the parties are unable to resolve such claim or controversy through
mediation, the parties hereby irrevocably agree that any legal suit brought by
any party arising from this Agreement may be brought in the courts located in
the State of Virginia.
12.5. This Agreement constitutes the entire agreement of the parties with
respect to its subject matter and supersedes all prior oral and written
communications, proposals and agreements in such regard. This Agreement may be
executed simultaneously in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
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12.6. Headings are for convenience and are not admissible as to
construction.
12.7. This Agreement shall bind upon and inure to the benefit of the
parties and their respective successors, assigns, heirs and legal
representatives; provided no party may assign this Agreement or delegate any
obligations hereunder without the prior written consent of the other party
except that Buyer may assign its rights and obligations to any affiliated entity
established by Buyer in order to effect the within transactions.
12.8 Each of the parties hereto acknowledges that there may be no adequate
remedy at law for the failure by such party to comply with the provisions of
this Agreement and that such failure would cause immediate harm that would not
be adequately compensable in damages. Accordingly, each of the parties hereto
agrees that its agreement contained herein may be specifically enforced without
the requirement of posting a bond or other security, in addition to all other
remedies available to the parties hereto under this Agreement.
12.9 If any provision of this Agreement is held to be unenforceable for any
reason, it shall be adjusted rather than voided, if possible, in order to
achieve the intent of the parties to this Agreement to the extent possible. In
any event, the invalidity or unenforceability of any provision of this Agreement
in any jurisdiction shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of this Agreement, including that provision, in any other
jurisdiction.
12.10 This Agreement, including the Schedules hereto, and the Ancillary
Documents constitute the full and entire understanding and agreement of the
parties with respect to the subject matter hereof and thereof and supersede any
and all prior agreements or understandings relating to the subject matter
hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective on the date first set forth above.
ELCOM SERVICES GROUP, INC.
By: /s/ Peter A. Rendall
-----------------------------------
Name: Peter A. Rendall
Title: Chief Financial Officer
ELCOM INTERNATIONAL, INC.
By: /s/ Peter A. Rendall
-----------------------------------
Name: Peter A. Rendall
Title: Chief Financial Officer
elcom, inc.
By: /s/ Peter A. Rendall
-----------------------------------
Name: Peter A. Rendall
Title: Chief Financial Officer
ePlus Technology, Inc.
By: /s/ Kley Parkhurst
-----------------------------------
Name: Kley Parkhurst
Title: SVP, Sec. & Treasurer
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