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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) July 24,1996
AlphaNet Solutions, Inc.
(Exact Name of Registrant as Specified in Charter)
New Jersey 0-27042 22-2554535
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(State or Other (Commission File Number) (IRS Employer Identification No.)
Jurisdiction
of Incorporation)
7 Ridgedale Ave., Cedar Knolls, New Jersey 07927
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(Address of Principal Executive Offices) (zip code)
(201) 267-0088
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(Registrant's telephone number,
including area code)
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(Former Name or Former Address, if Changed Since Last Report)
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ITEM 2. ACQUISITION OF ASSETS
On July 24, 1996, AlphaNet Solutions, Inc. (the "Company") consummated
the acquisition of certain assets of Lior, Inc. ("Lior"), a MicroAge affiliate
located in Paramus, New Jersey. The Company purchased the entire customer list
and outstanding purchase orders of Lior for an aggregate purchase price of up
to $1,000,000, of which $900,000 was paid at closing and $100,000 may be due in
January 1997 if certain former Lior sales persons remain employed by the
Company through such date. The Company funded the purchase price from proceeds
raised in its initial public offering. In determining the purchase price, the
company considered, among other factors, the past and projected revenues
generated from such customers and the value of the acquired purchase orders.
The Company did not assume any liabilities of Lior, other than the obligations
to perform under the acquired purchase orders and certain service contracts.
The Company acquired such assets from Stan Gang, the Company's President and
Chief Executive Officer, who had purchased such assets for the same
consideration from Lior on July 18, 1996 pending approval of the transaction by
the Company's Board of Directors. In connection with such transaction,
effective July 1, 1996, 26 former employees of Lior, including 7 sales persons
and 8 technical personnel joined the Company.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND
EXHIBITS
(a) Financial Information of Business Acquired
To be filed by amendment. The Company believes that it is
impracticable to provide such financial information as of the date hereof.
Such information shall be filed with the Commission no later than October 7,
1996.
(b) Pro Forma Financial Information (unaudited).
To be filed by amendment. The Company believes that it is
impracticable to provide such financial information as of the date hereof. Such
information shall be filed with the Commission no later than October 7, 1996.
(c) Exhibits.
Exhibit No. Description of Exhibit
10.1 Asset Purchase Agreement dated July 18, 1996 by
and between Stan Gang and Lior, Inc.
10.2 Assignment of Asset Purchase Agreement dated July 24,
1996 by and between Stan Gang and the Company.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
AlphaNet Solutions, Inc
By: /s/Gary S. Finkel
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Gary S. Finkel, Chief Financial
Officer (Principal Financial
and Accounting Officer
Date: August 5, 1996
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Exhibit 10.1
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==============================================================================
ASSET PURCHASE AGREEMENT
by and between
STANLEY GANG
Buyer,
and
LIOR, INC.
Seller.
Dated July 18, 1996
==============================================================================
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TABLE OF CONTENTS
ASSET SALE AGREEMENT
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ARTICLE I
PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purchased Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . . . 2
2.1 Corporate Existence and Qualification of Seller . . . . . . . . . . 2
2.2 Approval of Agreement . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Personal Property . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.5 Customers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.6 Validity of Contracts . . . . . . . . . . . . . . . . . . . . . . . 4
2.7 No Breach of Law or Governing Document . . . . . . . . . . . . . . . 4
2.8 Litigation and Arbitration . . . . . . . . . . . . . . . . . . . . . 4
2.9 Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.10 Truthfulness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER . . . . . . . . . . . . . . . . . . . . 5
3.1 Corporate Existence and Qualification . . . . . . . . . . . . . . . 5
3.2 Approval of Agreement . . . . . . . . . . . . . . . . . . . . . . . 5
3.3 No Breach of Law or Governing Document . . . . . . . . . . . . . . . 5
3-4 Litigation and Arbitration . . . . . . . . . . . . . . . . . . . . . 6
3.5 Insolvency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.6 Truthfulness . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV
COVENANTS AND AGREEMENTS OF PARTIES . . . . . . . . . . . . . . . . . . . . . . 6
4.1 Retention of Documents . . . . . . . . . . . . . . . . . . . . . . . 6
4.2 Litigation Support . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.3 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.4 Audit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.5 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4-6 Inventory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Accounts Receivable . . . . . . . . . . . . . . . . . . . . . . . . 10
4.8 Service Contracts . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.9 Vendor Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V
DELIVERIES BY BUYER AND SELLER . . . . . . . . . . . . . . . . . . . . . . . . 12
5.1 Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE VI.
INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.1 Indemnification of Buyer . . . . . . . . . . . . . . . . . . . . . . . 13
6.2 Indemnification of Seller and Lichtman . . . . . . . . . . . . . . . . 13
</TABLE>
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6.3 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.4 Notice of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.5 Right to Contest Claims of Third Persons . . . . . . . . . . . . . . 14
6.6 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6.7 Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE VII
NON-COMPETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.1 Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.2 Passive Investment . . . . . . . . . . . . . . . . . . . . . . . . . 16
7.3 Equitable Relief . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.4 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.5 Blue-Penciling . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.6 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE VIII.
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
9.1 Non-Disclosure of Information . . . . . . . . . . . . . . . . . . . 17
8.2 Entire Agreement and Modification . . . . . . . . . . . . . . . . . 15
8.3 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.5 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.7 Payment of Fees and Expenses . . . . . . . . . . . . . . . . . . . . 18
8.8 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8.9 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
8.10 Bulk Sales . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.11 Simultaneous Transactions . . . . . . . . . . . . . . . . . . . . . 20
8.12 Assignment; Successors and Assigns . . . . . . . . . . . . . . . 20
</TABLE>
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made this 18th day of
July, 1996, by and among Stanley Gang ("Buyer"), and Lior, Inc., a New Jersey
corporation ("Seller").
RECITALS
A. Seller is engaged in the purchase, resale and maintenance of software
and hardware as well as the providing of services relating thereto and is a
franchisee of MicroAge Computer Centers.
B. Buyer desires to purchase from Seller, on the terms and conditions
set forth herein, certain assets owned by Seller and associated with its
business, as herein specified; and
C. Seller desires to sell such assets to Buyer, on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, representations, warranties, conditions, and agreements hereinafter
expressed, the Parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1 Purchased Assets. In consideration of the payment. of the
Purchase Price and Additional Purchase Price (as hereinafter defined), and
subject to the terms and conditions hereof, Seller hereby grants, bargains,
sells, conveys, transfers and assigns to Buyer the following specified assets
(collectively, the "Purchased Assets"):
1.1.1 Seller's entire list of customers for Seller's
products and services (the "Customer List"), a true and correct copy of which
is annexed hereto as Schedule 1.1.1; and
1.1.2 All of Seller's right, title and interest in and to
the contracts described on the annexed Schedule 1.1.2 and to all outstanding
purchase orders from the customers set forth on the Customer List
(collectively, the "Contracts"). Buyer hereby acknowledges receipt of the list
of Seller's open purchase orders outstanding and the list of purchase orders
previously assigned to AlphaNet Solutions, Inc., a New Jersey corporation
("AlphaNet").
1.1.3 Notwithstanding the foregoing, the Purchased Assets
do not include any assets (including without limitation, the names of any
customers, or purchase orders) relating to or arising out of the business
conducted by Seller's Imaging Division.
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1.2 Purchase Price. (a) The purchase price (the "Purchase Price")
for the Purchased Assets is Nine Hundred Thousand Dollars ($900,000), which sum
is being paid by Buyer to Seller simultaneously with the execution hereof, by
wire transfer of immediately available funds to an account designated by Seller.
In addition, Buyer shall, on January 18, 1997, pay to Seller an amount (the
"Additional Purchase Price") equal to the product of (i) Twenty Five Thousand
Dollars ($25,000) multiplied by (ii) the number of "Key Salespersons" (as
defined in Section 4.5(a)) who remain in the employ of AlphaNet on that date.
The Additional Purchase Price shall be paid by Buyer by wire transfer of
immediately available funds to an account designated by Seller.
(b) Notwithstanding anything herein contained, the parties
acknowledge that Buyer is not assuming any liabilities, express or implied, of
Seller (other than any obligations to perform under any of the Contracts).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer, as follows:
2.1 Corporate Existence and Qualification of Seller. Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New Jersey. Seller has the power to execute and deliver this
Agreement and to carry out the transactions hereunder contemplated. The
execution, delivery and performance of this Agreement will not violate or breach
any provision of any mortgage, trust, indenture, lien, lease, agreement,
instrument, order, judgment, law, statute, regulation, ordinance, decree or
other restriction of any kind or character to which Seller or Igal Lichtman
("Lichtman") or any of the Purchased Assets is subject. This Agreement has been
duly authorized, executed and delivered by Seller and is valid, binding and
enforceable against it in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect which affect
creditors, right generally or by general principles of equity regardless of
whether such enforceability is considered in a proceeding in equity or at law;
and this Agreement has been executed and delivered by Lichtman (for the limited
purposes for which he is a party hereto) and is valid, binding and enforceable
against him in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws from time to time in effect which affect creditors' rights
generally and by general principles of equity regardless of whether such
enforceability is considered in a proceeding in equity or at law.
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2.2 Approval of Agreement. The execution and delivery of this
Agreement, and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action of Seller, including,
without limitation, approval by its sole shareholder. Seller has full power
and authority to enter into this Agreement and to perform its obligations
hereunder.
2.3 Consents. The execution and delivery of this Agreement by
Seller, and the consummation of the transactions contemplated hereby, do not
require the consent or authorization of, or notification or filing with, any
person, which has not been obtained or made as of the date hereof.
2.4 Personal Property. Except for the liens described on Schedule
2.4, which will be released simultaneously herewith to the extent that same
relate to the Purchased Assets, Seller has good and marketable title to all
personal property included in the Purchased Assets, free and clear of all
liens, charges and encumbrances, other than liens or other encumbrances
securing taxes, assessments, governmental charges or levies, or the claims of
materialmen, carriers, landlords and like persons, all of which are not yet due
and payable. Upon transfer of the Purchased Assets to Buyer and simultaneous
release of the liens described on Schedule 2.4, good and marketable title to
the Purchased Assets will be vested in Buyer, free and clear of all liens,
charges and encumbrances.
2.5 Customers. Seller's relationships with its material customers
included on the Customer List (the "Customers") are, in all material respects,
good commercial working relationships and no material Customer has cancelled or
otherwise terminated, or threatened to cancel or otherwise terminate, its
relationship with the Seller. Seller has no actual knowledge (without
independent inquiry or investigation of any sort) that any Customer intends to
cancel or otherwise materially modify its relationship with Seller, and Seller
has not been affirmatively notified, either orally or in writing, by any
Customer that such Customer views adversely the sale of the Customer List
pursuant hereto or the consummation of any of the other transactions
contemplated hereby. Notwithstanding the foregoing, Seller makes no
representation or warranty as to the status of its relationship with any
Customer to the extent, if any, that such relationship has been materially
adversely affected by the extended transition occasioned by the delays in the
negotiation, preparation and execution of this Agreement. Seller does confirm,
however, that it has no knowledge that its relationship with any Customer has
been materially adversely affected by such extended transition. Seller's
relationships with its Customers are not dependent or conditional upon any
arrangements which may exist between such Customers and Magic Solutions, Inc.,
a New Jersey corporation ("Magic").
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2.6 Validity of Contracts. Each of the Contracts is a valid and
binding obligation of the parties thereto in accordance with its terms and
conditions. Neither Seller, nor to Seller's knowledge, any other party to any
Contract is in default thereunder or in violation thereof. No event has
occurred which, through the passage of time or the giving of notice, or both,
would constitute, and neither the execution of this Agreement nor the
assignment of the Contracts by Seller to Buyer in accordance with this
Agreement does or will constitute or result in, a default under or a violation
of any Contract.
2.7 No Breach of Law or Governing Document. The execution and
performance of this Agreement by Seller and by Lichtman (for the limited
purposes for which he is a party hereto) does not and will not constitute or
result in a default under, or breach or violation of Seller's certificate of
incorporation or bylaws, or, to Seller's knowledge, of any statute, law,
ordinance, decree, order, rule, or regulation of any governmental body
applicable to Seller, Lichtman or the Purchased Assets.
2.8 Litigation and Arbitration. Except as set forth on Schedule
2.8, there is no suit, claim, action or proceeding now pending or threatened
before any court, grand jury, administrative or regulatory body, governmental
agency, arbitration or mediation panel or similar body, nor to the knowledge of
Seller are there any grounds therefor, to which Seller is a party (other than
collection matters in the ordinary course of business) or which may result in
any judgment, order, decree, liability, award or other determination which will,
or could, have any material adverse effect upon the transactions contemplated
hereby or any of the Purchased Assets. No such judgment, order, decree or award
has been entered against Seller nor has any such liability been incurred which
has, or could have, such effect. There is no claim, action or proceeding now
pending or, to Seller's knowledge, threatened before any court, grand jury,
administrative or regulatory body, governmental agency, arbitration or mediation
panel or similar body which will, or could, prevent, delay or restrict the
consummation of the transactions contemplated by this Agreement.
2.9 Insolvency. Seller is not currently insolvent and will not be
rendered insolvent as a result of the consummation of the transactions
contemplated hereby; Seller does not have any present intention to file for
bankruptcy, or make an assignment for the benefit of creditors, composition, or
similar filing; and Seller is able to pay its obligations as they become due in
the ordinary course of business and may be reasonably expected to continue to
do so notwithstanding the consummation of the transactions contemplated hereby.
2.10 Truthfulness. No representation or warranty of Seller herein
and no statement, information or certificate
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furnished by or on behalf of Seller or its counsel, accountants or other agents
pursuant hereto or in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein or therein not
misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller, as follows:
3.1 Corporate Existence and Qualification. AlphaNet is a
corporation duly organized, validly existing and in good standing under the
laws of the State of New Jersey. AlphaNet has the power to execute and deliver
this Agreement (for the limited purposes for which it is a party hereto) and to
carry out the transactions hereunder contemplated to be performed by it. The
execution, delivery and performance of this Agreement will not violate or
breach any provision of any mortgage, trust, indenture, lien, lease, agreement,
instrument, order, judgment, law, statute, regulation, ordinance, decree or
other restriction of any kind or character to which Buyer or AlphaNet is
subject. This Agreement has been duly authorized, executed and delivered by
Buyer and is valid, binding and enforceable against him in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect which affect creditors, rights generally and by general principles of
equity regardless of whether such enforceability is considered in a proceeding
in equity or at law; and this Agreement has been duly authorized, executed and
delivered by AlphaNet (for the limited purposes for which it is a party hereto)
and is valid, binding and enforceable against it in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, moratorium, reorganization or similar laws from time to time in
effect which affect creditors' rights generally and by general principles of
equity regardless of whether such enforceability is considered in a proceeding
in equity or at law.
3.2 Approval of Agreement. The execution and delivery of this
Agreement (for the limited purposes for which AlphaNet is a party hereto) and
the consummation of the transactions contemplated to be performed by AlphaNet
hereunder have been duly authorized by all necessary corporate action of
AlphaNet. AlphaNet has full power and authority to enter into this Agreement
(for the limited purposes for which AlphaNet is a party hereto) and to perform
its obligations hereunder.
3.3 No Breach of Law or Governing Document. The execution and
performance of this Agreement by AlphaNet (for the
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limited purposes for which AlphaNet is a party hereto) and Buyer do not and
will not constitute or result in a default under, or breach or violation of
AlphaNet's certificate of incorporation or by-laws, or, to Buyer's knowledge,
of any statute, law, ordinance, decree, order, rule, or regulation of any
governmental body applicable to Buyer or AlphaNet.
3.4 Litigation and Arbitration. There is no suit, claim, action or
proceeding now pending or threatened before any court, grand jury,
administrative or regulatory body, governmental agency, arbitration or
mediation panel or similar body, nor, to Buyer's knowledge, are there any
grounds therefor, to which Buyer or AlphaNet is a party or which may result in
any judgment, order, decree, liability, award or other determination which
will, or could, have any adverse effect upon the transactions contemplated
hereby. No such judgment, order, decree or award has been entered against
Buyer or AlphaNet nor has any such liability been incurred which has, or could
have, such effect. There is no claim, action or proceeding now pending or, to
Buyer's knowledge, threatened before any court, grand jury, administrative or
regulatory body, governmental agency, arbitration or mediation panel or similar
body which will, or could, prevent, delay or restrict the consummation of the
transactions contemplated by this Agreement.
3.5 Insolvency. Buyer is not currently insolvent and will not be
rendered insolvent as a result of the transactions contemplated hereby; Buyer
does not have any present intention to file for bankruptcy, or make an
assignment for the benefit of creditors, composition, or similar filing; and
Buyer is able to pay its obligations as they become due in the ordinary course
of business and may be reasonably expected to continue to do so notwithstanding
the consummation of the transactions contemplated hereby.
3.6 Truthfulness. No representation or warranty of Buyer herein
and no statement, information or certificate furnished by or on behalf of Buyer
or his counsel, accountants or other agents pursuant hereto or in connection
with the transactions contemplated hereby contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading.
ARTICLE IV
COVENANTS AND AGREEMENTS OF PARTIES
4.1 Retention of Documents. Buyer and Seller shall each retain,
at its respective expense, for a period of seven (7) years following the date
hereof, all records, documents and information relating to the Purchased
Assets, in its possession upon consummation of the transactions contemplated
hereby, and shall, during such period, give the other, and its counsel,
accountants
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and other representatives full access during normal business hours upon
reasonable notice and with minimum disruption to any such records, documents or
information, as may be necessary or useful in connection with its business, or
to adequately defend against or prosecute any lawsuit, claim, proceeding,
investigation or audit arising in respect of or relating to the Purchased
Assets, or to perform any audit of Seller's business which may hereafter be
required to be undertaken by any party under applicable federal securities
laws. Neither Buyer nor Seller shall dispose of such records, documents or
information without giving thirty (30) days prior notice to the other, at
which time such party may acquire such records, documents or information,
without any charge other than out of pocket expenses paid or incurred by the
party disposing of the records, documents or information in connection with the
computation, assembly and delivery of such records, documents and information
to the party acquiring such records, documents or information. Seller agrees
to furnish to Buyer at Buyer's request copies of any internal financial
statements of Seller or tax returns of Seller hereafter prepared by it to the
extent relating to Seller's fiscal periods ended June 30, 1996 and July 31,
1995.
4.2 Litigation Support. Buyer and Seller each agrees and
endeavors to cooperate in all reasonable respects with the other as it may
request, at mutually agreeable and reasonable times, upon reasonable notice,
and under reasonable circumstances so as to minimize the adverse affect on the
business of the cooperating party, in respect of any litigation, investigation,
claim, administrative or compliance proceeding which may hereafter arise
relating to the Purchased Assets. Such cooperation shall include, without
limitation, making available business records, documents or information
pertaining to, and employees having personal knowledge of, the circumstances
relating to the matter in question. In any such case, the requesting party
shall reimburse the cooperating party or otherwise pay for in full all
reasonable out-of-pocket expenses, but shall not be required to compensate the
cooperating party for the lost business time of his or its employees.
4.3 Use of Proceeds. Seller covenants and agrees that it will
utilize $750,000 of the proceeds of the Purchase Price to pay in part the
outstanding indebtedness of Seller secured by the Purchased Assets and $150, 000
of the proceeds of the Purchase Price for Seller's working capital needs, and
will, simultaneously with the consummation of the Agreement, obtain or have
obtained (a) from Deutsche Financial Services Corporation ("DFS") release of
DFS's liens, charges or encumbrances against the Purchased Assets, and (b) from
TriCon Capital Corporation (aka Greyhound Financial Corporation or Finova Corp.)
("Finova"), a release of Finova's liens, charges or encumbrances against the
Purchased Assets.
4.4 Audit. If, after the date hereof, Buyer transfers the
Purchased Assets to AlphaNet, Seller agrees to cause its
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independent public accountants, Grant Thornton LLP, to prepare and audit the
Seller's balance sheet for the eleven months ended June 30, 1996, and the
twelve months ended July 31, 1995, together with related statements of income
and retained earnings and cash flows for the periods then ended (collectively,
the "Financial Statements"), and to deliver (i) drafts of such balance sheet
and statements to AlphaNet not later than 65 days after the date of such
transfer, and (ii) such audited Financial Statements to AlphaNet not later than
75 days after the date of such transfer. Buyer and AlphaNet covenant and agree
to provide Seller with written notice of any proposed transfer of the Purchased
Assets from Buyer to AlphaNet, not later than two (2) business days prior to
the date of such transfer. The preparation and audit of the Financial
Statements shall be conducted at Seller's expense, and in accordance with
Regulation S-X promulgated under the federal securities laws. Buyer and
AlphaNet agree to cooperate, and to cause their auditors to cooperate, in all
respects (and acknowledges that Seller and its auditors shall require their
cooperation to deliver the audited Financial Statements as contemplated herein)
with Seller and its auditors in connection with the preparation and audit of
the Financial Statements, including, without limitation, providing Seller and
its auditors full access to the Purchased Assets, to all relevant books,
records, premises and other materials in Buyer's or AlphaNet's possession, to
employees of AlphaNet and to the working papers of Buyer's or AlphaNet's
auditors- Without limiting the foregoing, Buyer agrees to use its best efforts
to retain the services and participation of David Rogers in connection with the
preparation and audit of the Financial Statements through the date of delivery
of the audited Financial Statements. Buyer and Seller further agree to share
equally the cost of Mr. Rogers' services, or the services of another person
performing similar functions, allowable to his participation in the preparation
and audit of such Financial Statements, provided that Mr. Rogers' (or such
other person's) rate of compensation is no greater than that which has been
paid by Seller to Mr. Rogers prior to the consummation of the transactions
described herein.
4.5 Employees. (a) The parties and, by its signature below,
AlphaNet acknowledge that all persons, including the persons listed on the
annexed Schedule 4.5 (the "Key Salespersons"), heretofore employed by Seller,
who accept or have heretofore accepted offers of employment from AlphaNet in
connection with the purchase and sale of the Purchased Assets (collectively,
the "Transferred Employees") have or will become employees of AlphaNet,
effective as of July 1, 1996 (the "Effective Time"). Each of the Key
Salespersons has heretofore executed and delivered to AlphaNet an agreement, in
the form annexed as Exhibit A, known as the AlphaNet Solutions, Inc.
Employee's Invention Assignment and Confidentiality Agreement. In addition,
Seller and Magic have entered into incentive agreements, in the forms annexed
as Exhibit B (the "Incentive Agreements") , with each of the Key Salespersons,
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pursuant to which Seller will make certain specified incentive payments to such
Key Salespersons and Magic will grant certain specified stock options to such
Key Salespersons provided such persons remain in the employ of AlphaNet for a
period of at least six (6) months from the date hereof.
(b) By its signature below, AlphaNet
agrees that, subject to the approval of its stock option committee (which
approval AlphaNet will use its best efforts to obtain), AlphaNet will, as of
July 1, 1996, grant to each Key Salesperson, options to purchase 5,000 shares
of AlphaNet's common stock at the fair market value for such shares as of the
date of grant. Such options shall be subject to ordinary vesting provisions
and other terms and conditions, and exercise by any grantee shall be contingent
upon such grantee's continued employment by AlphaNet at least through December
31, 1996.
(c) By its signature below, AlphaNet
agrees to provide to each of the Key Salespersons, and to each other
Transferred Employee, employee benefits equivalent to those provided to
AlphaNet's other employees. AlphaNet further agrees that each Key Salesperson
and each other Transferred Employee will, to the extent permitted by AlphaNet's
benefit plans, receive credit for prior service with Seller and retain
seniority established while employed by Seller.
(d) Except for Seller's obligations to
the Key Salespersons under the Incentive Agreements, AlphaNet shall, and by its
signature below hereby agrees to, be responsible for and shall pay all Employee
Costs (as hereinafter defined) attributable to the Key Salespersons and other
Transferred Employees for all periods from and after the Effective Time (the
"AlphaNet Employee Costs"). Seller shall be responsible for and shall pay all
Employee Costs attributable to the Key Salespersons and other Transferred
Employees for all periods prior to the Effective Time (the "Lior Employee
Costs"). As used herein, "Employee Costs" means all wages, salary, bonus,
commissions, payroll taxes, accrued vacation, fringe and other benefits, and
all other employee-related liabilities of any kind or nature.
4.6 Inventory. Seller has heretofore furnished to
AlphaNet a list of its inventory on hand as of this date. By its signature
below, AlphaNet hereby covenants and agrees to purchase from Seller, at
Seller's cost less eligible price protection credits, on a when and as needed
basis, all of Seller's inventory on hand as of this date and which is subject
to firm purchase orders constituting part of the Purchased Assets, with net 10
day payment terms. Additionally, AlphaNet covenants and agrees that, during
the three (3) month period following the date hereof, it will, prior to
purchasing any other inventory required for its business from any reputable
third party vendor, notify Seller of AlphaNet's inventory requirements and the
price for such inventory
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available from such reputable third party vendor. If Seller's stock of
inventory at such time includes all or some of the items required by AlphaNet,
Seller may, within two (2) business days after receiving such notification, at
its option, notify AlphaNet of the items of required inventory available for
sale to AlphaNet, and elect to sell such items to AlphaNet, at the price
available from such reputable third party vendor. In such event, AlphaNet
agrees to purchase such items of required inventory from Seller at such price
with net 10 day payment terms.
4.7 Accounts Receivable. (a) Buyer and, by its signature below,
AlphaNet, hereby jointly and severally agree to assist Seller, in good faith,
in such respects as Seller may reasonably request, in Seller's efforts to
collect Seller's accounts receivable of account debtors listed on the Customer
List which are outstanding as of the date hereof (the "Existing A/Rs") and to
make available to Seller such of AlphaNet's Transferred Employees as Seller may
from time to time reasonably request for purposes of assisting Seller in
collecting the Existing A/Rs. Such assistance may include soliciting account
debtors and their billing representatives, suspending services and sales to
delinquent account debtors, and taking other actions consistent with Seller's
past collection practices. Additionally, neither AlphaNet nor Buyer will
affirmatively encourage or solicit any account debtor listed on the Customer
List to pay any account receivable of such account debtor arising on or after
the date hereof prior to or in lieu of payment of any Existing A/Rs of such
account debtor. All amounts hereafter collected by AlphaNet or Buyer in
respect of the Existing A/Rs will be held in trust for the benefit of Seller
and will be promptly remitted to Seller and all amounts hereafter collected by
Seller from account debtors listed on the Customer List in respect of accounts
receivable arising on or after the date hereof will be held in trust for the
benefit of Buyer and will be promptly remitted to Buyer. In order to
facilitate the collection of the Existing A/Rs, AlphaNet and Seller endeavor
and agree to meet at least on a bi-weekly basis, at mutually agreed times and
places, to review and discuss the status of the Existing A/Rs and the
collection and sales efforts relating thereto. Such meetings may be held by
telephone conference calls if the parties so agree. AlphaNet and Seller shall
each make available its most senior collections officer or employee, and other
senior executives for attendance at such meetings. Nothing herein contained
shall be deemed to limit AlphaNet's or Buyer's rights to collect its own
accounts receivable arising after the date hereof from account debtors listed
on the Customer Lists.
(b) By its signature below, AlphaNet agrees, commencing with the
date hereof, to receive, evaluate and process return requests from Customers
relating to sales made by Seller prior hereto and to issue returned merchandise
authorizations ("Seller RMAs") to such Customers on Seller's behalf in
accordance with AlphaNet's normal and customary practices. AlphaNet will
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promptly notify Seller of each Seller RMA issued by it to any Customer and
provide Seller with all documentation relating thereto to enable Seller to
record credits due to such Customers as a reduction of the Existing A/Rs.
AlphaNet will use its best efforts to resell any inventory of Seller arising
from Seller RMAs (the "Returned Inventory") or to return such inventory for
credit from distributors, manufacturers and other suppliers on behalf of
Seller. Any credits at any time received by AlphaNet on account of Seller RMAs
will be remitted by AlphaNet to Seller within ten (10) days following the end
of the month in which such credit is received. AlphaNet agrees to notify
Seller, in writing, of any Returned Inventory which, despite AlphaNet's best
efforts, cannot be resold or returned within thirty (30) days of AlphaNet's
receipt of such Returned Inventory. Seller will then instruct AlphaNet as to
Seller's plans for disposing of such inventory.
(c) It a Seller RMA is issuable by AlphaNet to a Customer who has
already paid Seller's invoice (s) relating thereto, Seller agrees to refund
directly to such Customer the amount of such invoice (s), net of any restocking
or other charges customarily assessed by Seller. If in lieu of a cash refund
such Customer requires AlphaNet to issue it a credit against any accounts
receivable of such Customer due AlphaNet (the "Customer Credit"), AlphaNet
shall be entitled to a credit against its accounts receivable balance with
Seller arising on account of its purchases of Seller's inventory pursuant to
Section 4.6 in the full amount of the Customer Credit and, if there remains any
deficiency, Seller shall promptly pay the difference to AlphaNet in cash in
full.
(d) Each of AlphaNet and Seller agrees to permit the other and its
authorized representatives, upon reasonable notice and during reasonable
business hours, to inspect the books and records of the other and make
inquiries of the other's employees to verify collections of accounts receivable
of Seller or Alphanet, as the case may be, of sales of Returned Inventory, or
selling efforts with respect to Seller's inventory, or accounting with respect
thereto.
4.8 Service Contracts. By its signature below, AlphaNet hereby
agrees to furnish any services which may hereafter be required to be performed
under the service contracts listed on the annexed Schedule 1.1.2.1 (the
"Services Contracts") and Seller agrees to pay AlphaNet the amount of such
fully paid service contracts prorated from the date of Closing through the
contract termination date or, in the case of block-time contracts, the amount
of any fully paid unused service hours.
4.9 Vendor Credits. Seller will use its best efforts to receive
in cash, directly from vendors, suppliers and manufacturers of products
distributed by it, all credits due it arising from Seller RMAs, return of
Seller's unsold inventory, price-protection, vendor promotions and other
transactions. To the extent that
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Seller is unable, despite its best efforts, to receive such credits in cash,
AlphaNet or Buyer (at their option) shall (i) with respect to any credits to
purchase merchandise or services generally or to purchase specific items of
merchandise or services routinely used in Buyer's or AlphaNet's business
consistent with past practice ("Credits"), which Credits are transferrable,
purchase such Credits in cash from Seller at their full face value or (ii) with
respect to any such Credits which are not transferrable, place purchase orders
for merchandise through Seller's account with the providers of the Credits in
the amounts of such Credits and promptly pay to Seller the full amount of such
orders in cash.
ARTICLE V
DELIVERIES BY BUYER AND SELLER
5.1 Deliveries. In order to facilitate the purchase and sale of
the Purchased Assets contemplated hereby, the following documents have
heretofore been delivered, or are being delivered simultaneously with the
execution of this Agreement:
5.1.1 By Seller to Buyer:
(a) Copies of UCC-3 Termination or
Partial Termination Statements duly executed by the holders of the liens
described on Schedule 2.4 annexed hereto terminating such liens to the extent
same apply to the Purchased Assets, in form for filing with the appropriate
filing officer, and, where appropriate, payoff letters setting forth the
amounts to be paid to satisfy the obligations secured by such liens (the
"Pay-Off Amounts"), and confirming that such UCC-3 Termination or Partial
Termination Statements will be filed upon receipt of the Pay-Off Amounts;
(b) Copies of letters or other documents
confirming (i) the consent of MicroAge Computer Stores, Inc. (the
"Franchisor") to the transaction described herein, and the waiver of the right
of first refusal under the Franchise Agreement (the "Franchise Agreement")
dated November 1, 1989 (as amended) between Seller and Franchisor, and (ii) the
termination of the Franchise Agreement;
(c) A copy of the consent of
Neuromedical Systems, Inc. to the assignment, in accordance with the terms
hereof, of purchase order #RW6 1190/00;
(d) In accordance with Section 4.5(a),
AlphaNet Solutions, Inc. Employee's Invention Assignment and Confidentiality
Agreements between each of the Key Salespersons and AlphaNet, duly executed by
the Key Salespersons, such agreements being in the form annexed hereto as
Exhibit A;
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(e) In accordance with Section 4.5(a),
copies of executed Incentive Agreements, in the form annexed as Exhibit B,
between Seller and Magic and each of the Key Salespersons; and
(f) A copy of resolutions of the Board
of Directors and sole stockholder of Seller authorizing the transactions
contemplated herein certified by an officer of Seller.
5.1.2 By Buyer to Seller:
(a) The Purchase Price.
(b) A copy of resolutions of the Board
of Directors of AlphaNet authorizing the transactions contemplated to be
performed by AlphaNet pursuant hereto certified by an officer of AlphaNet.
ARTICLE VI.
INDEMNIFICATION
6.1 Indemnification of Buyer. (a) Seller and, by his signature
below, Lichtman, jointly and severally, agree, for a period of six (6) months
following the date hereof, until January 18, 1997, to hold Buyer and AlphaNet
and AlphaNet's shareholders, directors, officers, affiliates, successors and
assigns (the "Buyer Indemnified Persons"), harmless and indemnify each of them
from and against, and waives any claim for contribution or indemnity with
respect to, any and all claims, losses, damages, liabilities, expenses or costs
("Losses"), plus reasonable attorneys' fees and expenses incurred in connection
with Losses and/or enforcement of this Agreement (collectively, "Indemnified
Losses") incurred or to be incurred by any Buyer Indemnified Person, to the
extent resulting from or arising out of (i) the purchase, ownership or
operation of the Purchased Assets or the business related thereto prior to the
date hereof; provided, however, that the indemnity provided in this clause (i)
shall not apply to Employee Costs attributable to the Transferred Employees for
all periods arising from and after the Effective Time or (ii) the Lior Employee
Costs.
(b) Seller shall hold the Buyer Indemnified Persons harmless and
indemnify each of them from and against, and waives any claim for contribution
or indemnity with respect to, any and all Indemnified Losses incurred or to be
incurred by any Buyer Indemnified Person to the extent resulting from or
arising out of any breach or violation of Seller's representations, warranties,
covenants, or agreements contained in this Agreement.
(c) The maximum combined aggregate liability of Seller and
Lichtman under this Section 6.1 is an amount equal to the sum of the Purchase
Price and the Additional Purchase Price.
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6.2 Indemnification of Seller and Lichtman. (a) Buyer shall hold
Lichtman and the Seller and Seller's shareholders, directors, officers,
affiliates, successors and assigns (the "Seller Indemnified Persons") harmless
and indemnify each of them from and against, and waives any claim for
contribution or indemnity with respect to, any and all Indemnified Losses
incurred or to be incurred by any Seller Indemnified Person to the extent
resulting from or arising out of any breach or violation of Buyer's
representations, warranties, covenants and agreements contained in this
Agreement,
(b) to the extent resulting from or arising out of (i)
the purchase, ownership or operation of the Purchased Assets or the business
related thereto after the date hereof or (ii) the AlphaNet Employee Costs.
6.3 Survival. The respective representations and
warranties of the parties contained in this Agreement and the documents and
instruments contemplated hereby shall survive for a period of six (6) months
from the date hereof. In addition, if written notice of any violation or
breach of any representation or warranty is given by Seller to Buyer or by
Buyer to Seller, as the case may be, such representation and warranty shall
continue to survive until such matter has been finally resolved by settlement,
litigation (including all appeals related thereto) or otherwise.
6.4 Notice of Claim. In the event that Buyer seeks
indemnification on behalf of a Buyer Indemnified Person, or Seller seeks
indemnification on behalf of a Seller Indemnified Person, such party seeking
indemnification (the "Indemnified Party") shall give written notice to the
Party or Parties obligated to indemnify the Indemnified Party (the
"Indemnifying Party") specifying the facts constituting the basis for such
claim and the amount, to the extent known, of the claim asserted. The
Indemnifying Party shall pay the amount of any valid claim not more than
forty-five (45) days after the Indemnified Party provides notice to the
Indemnifying Party of such amount, unless it disputes the claim in which event
payment, if any, shall be made upon final adjudication or other resolution of
the claim.
6.5 Right to Contest Claims of Third Persons. If an
Indemnified Party is entitled to indemnification hereunder because of a claim
asserted by any claimant (other than an indemnified person hereunder) ("Third
Person"), the Indemnified Party shall give the Indemnifying Party reasonably
prompt notice thereof after such assertion is actually known to the Indemnified
Party; provided, however, that the right of a person to be indemnified
hereunder in respect of claims made by a Third Person shall not be adversely
affected by a failure to give such notice unless, and then only to the extent
that, an Indemnifying Party is actually prejudiced thereby. The Indemnifying
Party shall have the right, upon written notice to the Indemnified Party, and
using counsel
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reasonably satisfactory to the Indemnified Party, to investigate, secure,
contest, or settle the claim alleged by such Third-Person (a "Third-Person
Claim"), provided that the Indemnifying Party has unconditionally acknowledged
to the Indemnified Party in writing his or its obligation to indemnify the
persons to be indemnified hereunder with respect to such Third-Person Claim;
the Indemnified Party may thereafter participate in (but not control) the
defense of any such Third-Person Claim with its own counsel at its own expense,
unless separate representation is necessary to avoid a conflict of interest, in
which case such representation shall be at the expense of the Indemnifying
Party. Unless and until the Indemnifying Party so acknowledges his or its
obligation to indemnify, the Indemnified Party shall have the right, at its
option, to assume and control defense of the matter and to look to the
Indemnifying Party for the full amount of the costs of defense. The failure of
the Indemnifying Party to respond in writing to the aforesaid notice of the
Indemnified Party with respect to such Third-Person Claim within twenty (20)
days after receipt thereof shall be deemed an election not to defend the same.
If the Indemnifying Party does not so acknowledge his or its obligation to
indemnify and assume the defense of any such Third-Person Claim, (a) the
Indemnified Party may defend against such claim, in such manner as it may deem
appropriate, including, but not limited to, settling such claim, after giving
notice of the same to the Indemnifying Party, on such terms as the Indemnified
Party may deem appropriate, and (b) the Indemnifying Party may participate in
(but not control) the defense of such action, with its own counsel at its own
expense. The parties shall make available to each other all relevant
information in their possession relating to any such Third-Person Claim and
shall cooperate in the defense thereof.
6.6 Insurance. The amounts for which any Indemnifying
Party shall be liable pursuant to this Article VI shall be reduced by the
amount of any proceeds actually received by an Indemnified Party from any
insurance policy covering the event or events giving rise to such liability
under this Article VI.
6.7 Subrogation. The Indemnifying Party shall be
subrogated to all rights and remedies of the Indemnified Party to the extent of
any indemnification provided by the Indemnifying Party to the Indemnified Party
hereunder.
ARTICLE VII
NON-COMPETITION
7.1 Non-Competition. (a) As consideration for, and as a
further inducement to, the performance by Buyer of the covenants hereunder,
Seller and, by his signature below, Lichtman, jointly and severally covenant
and agree that, for a period of two (2) years following the date hereof, they
will not (i) directly or indirectly, in any geographical area where AlphaNet,
or its
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subsidiaries, conduct business, own, manage, operate, join, control, or
participate in or be connected with, as an officer, employee, partner,
stockholder, director, advisor, consultant, or agent (whether paid or unpaid),
any business (a "Competitor") which is at that time engaged in the sale or
resale of computer hardware products and related services and support, (ii)
induce any current employees of AlphaNet, or any employees of Lior as of July
1, 1996 who, in connection with the transactions described herein, became
employees of AlphaNet, to terminate their employment with AlphaNet, interfere
with or disrupt AlphaNet's relationship with any employees, or solicit, entice,
take away or employ any such employees, or (iii) induce any customer of
AlphaNet, including any Customer, to terminate its relationship with AlphaNet,
interfere with or disrupt such relationship, or solicit, entice or take away
any such customer, for purposes of selling or reselling to such customer
computer hardware products and related services and support.
(b) Notwithstanding the provisions of Sections 7.1(a), (i)
Seller shall be permitted to sell its inventory, which is existing as of this
date and which is not purchased by AlphaNet pursuant to the terms hereof, to
equipment brokers, distributors or manufacturers, except that Seller shall not
be permitted to knowingly sell such inventory to any Customers or to any former
or current customers of AlphaNet without the prior consent of AlphaNet and (ii)
Seller shall be permitted to collect the Existing A/Rs from the Customers.
Furthermore, the restrictions contained in this Section 7.1 shall not apply to
the sale or other commercial exploitation by Lichtman, or any affiliate of
Lichtman, including Magic, of computer software products now or hereafter
conceived or marketed by them, or to the commercial exploitation of related
services, support and/or products, including computer hardware products, which
Lichtman or such affiliates may offer or market at any time or from time to
time in conjunction with or in supplement to software products as part of
"turnkey" sales or promotional packages. Finally, the term "Competitor", as
used herein, does not apply to any entity which merges or consolidates with or
into Magic or which acquires all or substantially all of its assets or capital
stock.
7.2 Passive Investment. Notwithstanding the provisions of Section
7.1 above, Seller and Lichtman shall each have the right to make a Passive
Investment (as defined below) so long as such Passive Investment does not result
in either of them beneficially owning, within the meaning of Section 13(d) of
the Securities Exchange Act of 1934, as amended, a greater than three percent
(3%) interest in the outstanding securities of any class of securities of any
company or business entity which is a Competitor and which has any class of
securities listed on a national securities exchange or quoted on the automated
quotation system of the National Association of Securities Dealers, Inc. (a
"Public; Company"). Nothing in this Agreement shall be construed as
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prohibiting Lichtman or Seller from making any Passive Investment in any
company or business entity, whether or not it is a Public Company, which is not
a Competitor. For purposes of this Agreement, a "Passive Investment" shall
mean an investment in a business or entity which does not require Lichtman to
render any services in the operations or affairs of such business or entity or
otherwise devote any substantial amount of his business time.
7.3 Equitable Relief. It is expressly understood and
agreed that the services which could be rendered by the Seller or Lichtman to a
third party in breach of this Article VII are special, unique and of
extraordinary character, and in the event of the breach or threatened breach by
them of any of the terms and conditions of this Article VII on their part to be
performed hereunder, then AlphaNet or Buyer shall be entitled, if it so elects,
to institute and prosecute any proceedings in any court of competent
jurisdiction, either in law or equity, to seek such relief as it deems
appropriate, including without limiting the generality of the foregoing, any
proceedings to obtain damages for any breach of this Agreement, or to enforce
the specific performance thereof by the Seller and Lichtman or to enjoin the
Seller and Lichtman.
7.4 Severability. If any court determines that any of
the restrictive covenants set forth in this Article VII, or any part thereof,
is invalid or unenforceable, the remainder of the restrictive covenants shall
not thereby be affected and shall be given full effect, without regard to the
invalid portions.
7.5 Blue-Penciling. If any court determines that any of
the restrictive covenants set forth in this Article VII, or any part thereof,
is unenforceable because of the duration or geographic scope of such provision,
such court shall have the power to reduce the duration or scope of such
provision, as the case may be, and, in its reduced form, such provision shall
then be enforceable.
7.6 Jurisdiction. Seller and Lichtman intend to and
hereby confer jurisdiction to enforce the restrictive covenants set forth
herein upon the courts of each jurisdiction within the geographical scope of
such covenants where any alleged violation of such covenants occurs. If the
courts of any one or more of such jurisdictions hold such restrictive covenants
unenforceable by reason of the breadth of such scope or otherwise, it is the
intention of the parties hereto that such determination not bar or in any way
effect AlphaNet's or Buyer's rights to the relief provided above in the courts
of any other jurisdiction within the geographical scope of such covenants as to
breaches of such covenants in such other respective jurisdictions, such
covenants as they relate to each jurisdiction being, for this purpose,
severable into diverse and independent covenants.
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ARTICLE VIII.
MISCELLANEOUS
8.1 Non-Disclosure of Information. Except as required by
law, including compliance by Buyer or AlphaNet with applicable securities laws,
neither party shall make any public disclosure or announcement concerning the
transactions described in this Agreement without the prior written consent of
the other. Buyer and Seller each agree to maintain as confidential the
information obtained from the other in connection with the negotiation,
execution and performance of this Agreement and the transactions described
herein, except to the extent already in the public domain, and neither will
disclose such information to any person or use such information for any purpose
other than as required by law or in order to enforce or exercise rights
hereunder or in respect hereof.
8.2 Entire Agreement and Modification. This Agreement,
including the Schedules attached hereto and the documents delivered pursuant
hereto, constitutes the entire agreement between the parties and supersedes and
overrides all prior agreements, understandings and writings between the
parties, including without limitation the Letter of Intent dated June 21, 1996
between AlphaNet and Seller. No changes of, modifications of, or additions to
this Agreement shall be valid unless the same shall be in writing and signed by
all parties hereto.
8.3 Severability. It any provision of this Agreement
shall be determined to be contrary to law and unenforceable by any court of
law, the remaining provisions shall be severable and enforceable in accordance
with their terms.
8.4 Counterparts. This Agreement may be executed in one
or more identical counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same instrument.
8.5 Headings. The table of contents and article and
section headings contained in this Agreement are inserted for convenience only
and shall not affect in any way the meaning or interpretation of the Agreement.
8.6 Governing Law. This Agreement shall be construed and
interpreted according to the laws of the State of New Jersey.
8.7 Payment of Fees and Expenses. Subject to the
provisions hereof, each party hereto shall pay all fees and expenses of such
party's respective counsel, accountants and other experts and all other
expenses incurred by such party incident to the negotiation, preparation and
execution of this Agreement and the consummation of the transactions
contemplated hereby.
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8.8 Notices. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given if the same
shall be in writing and shall be delivered personally or by fax or sent by
registered or certified mail, postage prepaid, or by overnight courier and
addressed as set forth below:
If to Buyer:
c/o AlphaNet Solutions, Inc.
7 Ridgedale Avenue
Cedar Knolls, New Jersey 07927
Attn: Stan Gang
Fax: 201-267-1012
copy to:
Buchanan Ingersoll
500 College Road East
Princeton Forrestal Center
Princeton, New Jersey 08540-6615
Attn: David Sorin, Esq.
Fax: 609-520-0360
If to Seller:
Lior, Inc.
10 Forest Avenue
Paramus, New Jersey 07652
Attn: Igal Lichtman
Chief Executive Officer
Fax: 201-587-9464
copy to:
Bryan Cave LLP
245 Park Avenue
New York, New York 10167-0034
Attn: Conrad Everhard, Esq.
Fax: 212-692-1900
Any such notice shall be deemed given when so delivered personally or
by overnight courier or sent by facsimile transmission, or, if mailed, two days
after deposit in the United States mail. Any party may change the address to
which notices are to be addressed by giving the other parties notice in the
manner herein set forth.
8.9 Tax Matters.
8.9.1 Buyer shall pay all applicable sales, use or other
similar transfer taxes that are, or become, due or payable as a result of the
sale, conveyance, assignment, transfer or delivery
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of the Purchased Assets hereunder, whether levied on Buyer, the Purchased
Assets or Seller. Buyer shall prepare, subject to Seller's reasonable
approval, and file any returns required in respect of such taxes.
8.9.2 Seller and Buyer shall report Buyer's
purchase of the Purchased Assets pursuant to Section 1060 of the Internal
Revenue Code of 1986, as amended (the "Code") and other applicable laws in a
consistent manner and shall take no position contrary thereto. Such allocation
shall be agreed upon in writing by Buyer and Seller within thirty (30) days
following the Closing. Buyer and Seller each shall be responsible for the
preparation of any statements and forms to be filed pursuant to Section 1060 of
the Code or in accordance with other applicable law.
8.9.3 Buyer and Seller agree to furnish or cause to
be furnished to each other, upon request, as promptly as practicable, such
information and assistance (including access to books and records) relating to
the Purchased Assets as is reasonably necessary for the preparation of any
return for taxes, claims for refund or audit or prosecution or defense of any
claim, suit or proceeding relating to any proposed adjustment of taxes paid.
8.10 Bulk Sales. Seller and Buyer hereby waive compliance
with any applicable bulk sales law and any statute relating to notice to or
rights of creditors of Seller in connection with the transactions contemplated
in this Agreement.
8.11 Simultaneous Transactions. The parties agree that
all of the actions required to be taken simultaneously with the execution
hereof and all of the instruments required to be delivered simultaneously with
the execution hereof and all of the terms and provisions hereof which become
effective simultaneously
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with the execution hereof shall be deemed to be taken, be delivered and become
effective simultaneously; and none of such actions, instruments or terms and
provisions shall be deemed taken, delivered or effective unless all are.
8.12 Assignment: Successors and Assigns. Except as
otherwise provided herein, this Agreement may not be assigned by operation of
law or otherwise, and any attempted assignment shall be null and void. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors, assigns and legal representatives. This
Agreement shall be for the sole benefit of the parties to this Agreement and
their respective successors, assigns and legal representatives and is not
intended, nor shall be construed, to give any person, other than the parties
hereto and their respective successors, assigns and legal representatives, any
legal or equitable right, remedy or claim hereunder. However, Buyer may,
without the prior consent of Seller, assign its rights and delegate its duties
under this Agreement at any time after the date hereof to AlphaNet, provided
that AlphaNet agrees in writing to be bound by Buyer's obligations hereunder in
the same manner as if AlphaNet had executed this Agreement in Buyer's place
simultaneously herewith.
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<PAGE> 26
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, on the day and year first above written.
/s/ STAN GANG
---------------------------------------
STAN GANG
LIOR, INC.
By /s/ IGAL LICHTMAN
--------------------------------------
Igal Lichtman, Chief Executive Officer
Section 4.8 and Articles 6 and 7 Agreed
To and Confirmed By:
/s/ IGAL LICHTMAN
---------------------------------------
Igal Lichtman
Address: 10 Forest Avenue
Paramus, New Jersey 07092
Sections 4-4, 4.5, 4.6, 4-7, 4-8, 4.9 and
8.2 Agreed To and Confirmed by:
ALPHANET SOLUTIONS, INC.
By /s/ STAN GANG
-------------------------------------
Name: Stan Gang
Title: President
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<PAGE> 1
Exhibit 10.2
<PAGE> 2
ASSIGNMENT OF ASSET PURCHASE AGREEMENT
KNOW ALL MEN BY THESE PRESENTS THAT Stan Gang (hereinafter called "Assignor"),
in consideration of One Million Dollars ($1,000,000), of which (i) $900,000 has
been paid by AlphaNet Solutions, Inc. (hereinafter called "Assignee"), receipt
and sufficiency of which is hereby acknowledged, and (ii) $100,000 shall be
paid to Assignor by Assignee no later than January 18, 1997 in the event
Assignor shall be obligated to make such payment to Lior, Inc., pursuant to the
Agreement (as defined below), hereby assigns, transfers and conveys unto
Assignee, its successors and assigns, all the rights, interests, privileges and
obligations of Assignor in and to that certain Asset Purchase Agreement dated
July 18, 1996 by and between Assignor and Lior, Inc. (hereinafter called the
"Agreement") as set forth in "Exhibit A" attached hereto and hereby made a part
hereof.
1. Assignor covenants, represents and warrants that:
(a) Assignor has not executed or made any prior
assignment of any of his rights, interests, privileges or obligations under the
Agreement, and will not do so in the future;
(b) Assignor has not done anything which might prevent
Assignee from complying with, or limit Assignee in operating under, any of the
provisions of the Agreement or this Assignment thereof; and
(c) Assignor shall execute such other and further
instruments and documents as Assignee may reasonably request to carry into
effect or to further evidence the transfer effectuated hereby.
2. This Assignment shall inure to the benefit of and shall be
binding upon the parties hereto and their respective successors and assigns.
3. This Assignment shall be governed by and construed according
to the laws of the State of New Jersey.
IN WITNESS WHEREOF, Assignor, intending to be legally bound, has duly
executed this Assignment the 24th day of July, 1996.
WITNESS: ASSIGNOR
/s/ STAN GANG
------------------------------ -------------------------
Name: Stan Gang
WITNESS: ASSIGNEE
/s/ GARY S. FINKEL
------------------------------ -------------------------
Name: By: Gary S. Finkel
Chief Financial Officer
AlphaNet Solutions, Inc.
