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EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered into
as of November 30, 2000 (the "Effective Date"), by and between Partners
Resources, Inc., an Arizona corporation ("Seller"), and PTI Innovations, Inc., a
New York corporation ("Buyer"). In addition, the following entity and individual
are parties to this Agreement for the limited purposes set forth in Section 14
hereof: SCB Computer Technology, Inc., a Tennessee corporation and the sole
shareholder of Seller ("SCB"); and John Severini, a resident of New York who is
the sole shareholder, sole director, and President of Buyer.
Introduction. Seller, through its Global Services business unit, is
engaged in the business of purchasing and reselling pre-owned computer equipment
(the "Global Business"). Seller desires to sell to Buyer, and Buyer desires to
purchase from Seller, certain assets and properties of Seller used in the Global
Business. In addition, SCB and Severini desire to take certain other actions set
forth in Section 14 hereof. On the terms set forth in this Agreement, for
certain good and valuable considerations, the receipt and adequacy of which are
hereby acknowledged by the parties hereto, and relying on the representations,
warranties, covenants, and agreements of each other contained herein, the
parties hereto hereby agree as follows:
1. Sale and Purchase of Assets. As of the Effective Date, Seller hereby
sells, conveys, transfers, assigns, and delivers the Assets to Buyer, and Buyer
hereby purchases, receives, and accepts the Assets from Seller (the
"Acquisition"). As used in this Agreement, the term "Assets" means all of the
following assets and properties of Seller relating to the Global Business: (a)
inventory described in Schedule 1(a) attached hereto; (b) trademarks, trade
names, and logos utilizing the name "Global Services"; and (c) goodwill.
2. Excluded Assets. Seller does not intend to sell and is not hereby
selling the Excluded Assets to Buyer, and Buyer does not intend to purchase and
is not hereby purchasing the Excluded Assets from Seller. As used in this
Agreement, the term "Excluded Assets" means all other assets and properties of
Seller that are not specifically and expressly included in the definition of
"Assets" set forth in Section 1 hereof.
3. Assignment of Assets. As of the Effective Date, Seller shall convey,
transfer, and assign to Buyer full legal and beneficial title to the Assets
(subject to the recordation of any assignment documents reasonably necessary to
perfect legal title), free and clear of all assessments, charges, claims, liens,
mortgages, pledges, security interests, and other encumbrances (collectively,
"Liens"), pursuant to the Bill of Sale, General Assignment, and Conveyance in
the form attached hereto as Exhibit 3 and such other conveyancing instruments as
are reasonably satisfactory in form and substance to Seller and Buyer. The title
to, possession of, and risk of loss of or damage to the Assets shall pass from
Seller to Buyer as of the Effective Date.
4. Consideration for Assets. As of the Effective Date, and in full
consideration for the Assets, Buyer shall convey, transfer, and assign to Seller
full legal and beneficial title to ten thousand (10,000) shares of common stock,
par value $.01 per share, of SCB Computer Technology, Inc. (the "Shares"), free
and clear of all Liens, pursuant to the Stock Power in the form attached hereto
as Exhibit 4.
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5. Approvals and Consents. Seller and Buyer each have taken and, if
necessary or appropriate, shall continue to take after the Effective Date, at
its own expense, any and all actions (including, without limitation, using its
best efforts to obtain any and all approvals, authorizations, consents, and
other actions) necessary or appropriate for it to consummate the Acquisition.
6. Effective Date; Closing. The Acquisition shall be consummated by the
parties hereto effective as of the Effective Date. The consummation of the
Acquisition (the "Closing") shall be effected by the exchange among the parties
hereto, via overnight courier, of executed originals of this Agreement and all
other related documents and instruments. To effect the Closing, each party
hereto shall execute and deliver this Agreement and all other documents and
instruments required to be executed and delivered by such party hereunder and
shall take all other actions necessary or appropriate to consummate the
Acquisition as contemplated in this Agreement.
7. Acquisition Documents.
(a) Seller. To effect the Acquisition, Seller shall execute and
deliver (1) this Agreement, (2) the Bill of Sale, General Assignment, and
Conveyance in the form attached hereto as Exhibit 3, and (3) the Certificate of
Secretary in the form attached hereto as Exhibit 7(a) (collectively, the
"Seller's Documents").
(b) Buyer. To effect the Acquisition, Buyer shall execute and/or
deliver (1) this Agreement, (2) a stock certificate evidencing the Shares, (3)
the Stock Power in the form attached hereto as Exhibit 4, and (4) the
Certificate of Secretary in the form attached hereto as Exhibit 7(b)
(collectively, the "Buyer's Documents").
8. Further Assurances; Discontinuance of Name Use. At any time after the
Effective Date, and upon the reasonable request of any party hereto, each party
shall execute and deliver any and all other documents and instruments and take
any and all other actions necessary or appropriate to consummate the Acquisition
as contemplated in this Agreement. As of the Effective Date, Seller shall
discontinue all commercial uses of the words "Global Services."
9. Transfer Taxes. Seller shall be responsible for and pay any and all
federal, state, and local sales, excise, transfer, use, and other taxes assessed
or imposed with respect to the Acquisition.
10. Information and Assistance. Seller and Buyer acknowledge and agree
that after the Effective Date, either party may desire or need financial and
other information relating to the Assets and other forms of assistance for the
purpose of complying with applicable laws, rules, and regulations. At any time
after the Effective Date, and upon request by Seller or Buyer, the other party
shall provide such information and assistance, to the extent reasonable, to the
requesting party and its representatives. The requesting party shall be
responsible for and pay all reasonable direct costs and expenses incurred by the
assisting party in providing such information and assistance.
11. Representations and Warranties of Seller. Seller represents and
warrants to Buyer as follows:
(a) Existence. Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Arizona.
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(b) Authority; Authorization. Seller has full corporate authority
and power to transact the business in which it is engaged, to execute and
deliver the Seller's Documents, to perform its obligations thereunder, and to
consummate the Acquisition. Seller has taken all corporate action necessary to
authorize the execution and delivery of the Seller's Documents, the performance
of its obligations thereunder, and the consummation of the Acquisition.
(c) Enforceability. The Seller's Documents have been executed and
delivered by a duly authorized officer of Seller, constitute the legal, valid,
and binding obligations of Seller, and are enforceable against Seller in
accordance with their respective terms.
(d) Title to Assets. Seller has full legal and beneficial title to
the Assets, free and clear of all Liens.
(e) Approvals and Consents. Seller has obtained any and all
approvals, authorizations, consents, and other actions necessary or appropriate
for it to consummate the Acquisition.
(f) No Impediments. Seller's execution and delivery of the Seller's
Documents, performance of its obligations thereunder, and consummation of the
Acquisition will not cause a breach or violation of, or default or event of
default under, (1) the charter or bylaws of Seller; (2) any security issued by
Seller; (3) any contract that Seller is a party to and which breach, violation,
default, or event of default would result in the imposition of any liability or
obligation on Buyer after the Effective Date; (4) any applicable law, rule, or
regulation of any governmental authority; or (5) any applicable decree, order,
injunction, or other decision of any court, arbitrator, or governmental
authority.
(g) No Preferential Right. Except for any inventory included in the
Assets which is to be sold in the ordinary course of the Global Business, no
party other than Buyer has any prior or preferential right, right of first
refusal, or other similar right to purchase, lease, or otherwise acquire or use
the Assets.
(h) No Brokerage Fee. No brokerage, finder's, or similar fee,
commission, or other payment is or will become payable by Buyer in connection
with the Acquisition pursuant to any agreement, contract, or other arrangement
entered into by Seller.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER SELLER NOR
ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR
REPRESENTATIVES HAS MADE, AND SELLER SHALL NOT BE BOUND BY, ANY EXPRESS OR
IMPLIED REPRESENTATION, WARRANTY, GUARANTEE, PROMISE, STATEMENT, INDUCEMENT, OR
INFORMATION OF ANY KIND OR NATURE WITH RESPECT TO SELLER, THE ASSETS, OR ANY
OTHER MATTER, INCLUDING, WITHOUT LIMITATION, THE PROBABLE SUCCESS,
PROFITABILITY, OR OTHER PROSPECTS OF THE OWNERSHIP OR USE OF THE ASSETS AFTER
THE EFFECTIVE DATE. SELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED
WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE ASSETS.
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12. Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
(a) Existence. Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of New York.
(b) Authority; Authorization. Buyer has full corporate authority
and power to transact the business in which it is engaged, to execute and
deliver the Buyer's Documents, to perform its obligations thereunder, and to
consummate the Acquisition. Buyer has taken all corporate action necessary to
authorize the execution and delivery of the Buyer's Documents, the performance
of its obligations thereunder, and the consummation of the Acquisition.
(c) Enforceability. The Buyer's Documents have been executed and
delivered by a duly authorized officer of Buyer, constitute the legal, valid,
and binding obligations of Buyer, and are enforceable against Buyer in
accordance with their respective terms.
(d) Title to Shares. Seller has full legal and beneficial title to
the Shares, free and clear of all Liens, and no other entity or individual
(including, without limitation, John Severini and his wife, Barbara Severini)
has any right or title to or interest in any of the Shares.
(e) Approvals and Consents. Buyer has obtained any and all approvals,
authorizations, consents, and other actions necessary or appropriate for it to
consummate the Acquisition.
(f) No Impediments. Buyer's execution and delivery of the Buyer's
Documents, performance of its obligations thereunder, and consummation of the
Acquisition will not cause a breach or violation of, or default or event of
default under, (1) the articles of incorporation or bylaws of Buyer; (2) any
security issued by Buyer; (3) any contract that Buyer is a party to and which
breach, violation, default, or event of default would result in the imposition
of any liability or obligation on Seller after the Effective Date; (4) any
applicable law, rule, or regulation of any governmental authority; or (5) any
applicable decree, order, injunction, or other decision of any court,
arbitrator, or governmental authority.
(g) No Brokerage Fee. No brokerage, finder's, or similar fee,
commission, or other payment is or will become payable by Seller in connection
with the Acquisition pursuant to any agreement, contract, or other arrangement
entered into by Buyer.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER BUYER NOR ANY
OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES
HAS MADE, AND BUYER SHALL NOT BE BOUND BY, ANY EXPRESS OR IMPLIED
REPRESENTATION, WARRANTY, GUARANTEE, PROMISE, STATEMENT, INDUCEMENT, OR
INFORMATION OF ANY KIND OR NATURE WITH RESPECT TO BUYER OR ANY OTHER MATTER.
13. Survival of Representations and Warranties. The representations and
warranties made by Seller and Buyer in this Agreement shall survive for a period
of one year after the Effective Date; provided, however, that the
representations and warranties made by Seller in Sections 11(a)-(d) hereof and
by Buyer in Sections 12(a)-(d) hereof shall survive for the maximum period
permitted by applicable law. The liability of Seller and Buyer under their
respective representations and warranties shall expire at the end of the
applicable survival
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periods; provided, however, that the liability of a party for a breach or
inaccuracy of any representation or warranty shall not expire at the end of the
applicable survival period if the other party notifies such party of such breach
or inaccuracy before the end of such survival period.
14. Indemnification.
(a) Indemnification by Seller and SCB. Seller and SCB jointly and
severally shall defend, indemnify, and hold harmless Buyer, its successors and
assignees, and its and their respective shareholders, directors, officers,
employees, agents, and representatives (collectively, the "Buyer Indemnified
Parties") from and against any and all assessments, charges, costs, damages,
expenses (including, without limitation, attorneys' fees and expenses and court
costs), fines, judgments, losses, penalties, and other liabilities and
obligations of any kind or nature, whether known or unknown, foreseen or
unforeseen, fixed or contingent, accrued or unaccrued, or otherwise, and any and
all claims, demands, investigations, causes of action, actions, lawsuits, and
other legal proceedings in respect thereof, whether in law or equity (all such
assessments, charges, costs, damages, expenses, fines, judgments, losses,
penalties, and other liabilities and obligations and all such claims, demands,
investigations, causes of action, actions, lawsuits, and other legal proceedings
are referred to collectively as "Losses") arising from or based on (1) any
breach or inaccuracy of any representation or warranty made by Seller in this
Agreement, and (2) any breach of or failure to perform any agreement or covenant
of Seller set forth in this Agreement.
(b) Indemnification by Buyer and Severini. Buyer and Severini jointly
and severally shall defend, indemnify, and hold harmless Seller, SCB and all
other entities affiliated with Seller, its and their respective successors and
assignees, and its and their respective shareholders, directors, officers,
employees, agents, and representatives (collectively, the "Seller Indemnified
Parties") from and against any and all Losses arising from or based on (1) any
breach or inaccuracy of any representation or warranty made by Buyer in this
Agreement, (2) any breach of or failure to perform any agreement or covenant of
Buyer set forth in this Agreement, and (3) Buyer's ownership and use of the
Assets after the Effective Date.
(c) Notice of Claim. The party making a claim for indemnification
under this Section 14 (the "Indemnified Party") shall promptly notify the party
obligated to provide indemnification hereunder (the "Indemnifying Party") of the
assertion or commencement of any claim, demand, investigation, cause of action,
action, lawsuit, or other legal proceeding in respect of which indemnification
is or may be sought hereunder. The failure by the Indemnified Party to so notify
the Indemnifying Party shall not relieve the Indemnifying Party of its
obligations under this Section 14, except to the extent, if any, that it has
been prejudiced by the lack of timely and adequate notice.
(d) Third-Party Claims. The Indemnifying Party shall have the right
to assume the defense or settlement of any claim, demand, investigation, cause
of action, action, lawsuit, or other legal proceeding asserted or commenced by a
third party in respect of which indemnification is or may be sought hereunder (a
"Third-Party Claim") with counsel reasonably satisfactory to the Indemnified
Party; provided, however, that the Indemnifying Party shall not settle or
compromise any Third-Party Claim without the Indemnified Party's prior written
consent thereto. Notwithstanding the foregoing, (1) the Indemnified Party shall
have the right, at its option and expense, to participate fully in the defense
or settlement of any Third-Party Claim; and (2) if the Indemnifying Party does
not continuously and diligently defend or settle any
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Third-Party Claim within 10 days after it is notified of the assertion or
commencement thereof, then the Indemnified Party shall have the right, but not
the obligation, to undertake the defense or settlement of such Third-Party Claim
for the account and at the risk of the Indemnifying Party, and the Indemnifying
Party shall be bound by any defense or settlement that the Indemnified Party may
make as to such Third-Party Claim. The Indemnified Party shall be entitled to
join the Indemnifying Party in any Third-Party Claim for the purpose of
enforcing any right to indemnification hereunder. The Indemnified Party shall
cooperate with the Indemnifying Party in the defense or settlement of any
Third-Party Claim and, at the expense of the Indemnifying Party, shall furnish
any and all information and materials in its possession and endeavor to make any
and all witnesses under its control available to the Indemnifying Party for any
lawful purpose relevant to the defense or settlement of such Third-Party Claim.
(e) Excluded Losses. As used in this Agreement, the term "Losses"
shall exclude any consequential damages (including, without limitation, lost
profits) or punitive or exemplary damages, except with respect to Third-Party
Claims.
(f) Exclusive Remedy. Any claim, demand, action, lawsuit, or other
legal proceeding arising from or based on this Agreement or the Acquisition,
regardless of whether the same is contractual, tortious or otherwise in nature,
must be made or brought by the Indemnified Party against the Indemnifying Party
in accordance with the provisions and subject to the limitations of this Section
14.
15. General Provisions.
(a) Fees and Expenses. Except as otherwise specifically provided for
herein, the parties hereto shall be responsible for and pay their respective
legal, accounting, and other fees and expenses incurred or assumed in connection
with their negotiation, execution, and delivery of this Agreement and all other
documents and instruments contemplated herein, their performance of their
obligations hereunder and thereunder, and the consummation of the Acquisition.
(b) Public Announcements. No party hereto shall issue or make any
press release, public announcement, confirmation, or other disclosure of
information relating to this Agreement or the Acquisition, except (1) upon the
prior consultation with and approval of the other parties, (2) to such party's
directors, officers, employees, attorneys, and accountants, or (3) as may be
required to comply with applicable laws, rules, and regulations.
(c) Entire Agreement. This Agreement, including the attachments
hereto, constitutes the entire understanding among the parties hereto and a
complete and exclusive statement of the terms and conditions of their agreement
relating to the subject matter hereof and supersedes any and all prior
negotiations, understandings, agreements, and arrangements, whether written or
oral, and whether express or implied, between them with respect to the subject
matter hereof (including, without limitation, the letter of intent dated
November 10, 2000 between SCB and John Severini), all of which prior
negotiations, understandings, agreements, and arrangements are hereby rendered
null, void, and of no further force or effect.
(d) Third-Party Beneficiaries. Except to the extent that the Buyer
Indemnified Parties and the Seller Indemnified Parties shall be entitled to
indemnification pursuant to Section 14 hereof, no person who is not a party to
this Agreement or a successor, permitted
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assignee, or legal representative of a party hereto shall have any interest in
or right under this Agreement as a third-party beneficiary or otherwise.
(e) Notices and Other Communications. All notices and other
communications provided for in this Agreement shall be made in writing, shall be
addressed to the receiving party as set forth below, and shall be delivered
either (1) in person, in which case such notice or other communication shall be
deemed delivered upon its actual receipt, (2) by FedEx, UPS or any other
nationally recognized express delivery service, in which case such notice or
other communication shall be deemed delivered upon its actual receipt, or (3) by
the United States mail, return receipt requested, in which case such notice or
other communication shall be deemed delivered three days after the same is
deposited in a postal box under the exclusive control of the United States
Postal Service. For the purposes hereof, the addresses of the parties are as
follows:
Seller: Partners Resources, Inc.
c/o SCB Computer Technology, Inc.
3800 Forest Hill-Irene Road, Suite 100
Memphis, Tennessee 38125
Attention: President
Buyer: PTI Innovations, Inc.
20 Keyland Court
Bohemia, New York 11716
Attention: President
Any party may change its address for the purposes hereof by notifying the other
party of such change in the manner provided for herein.
(f) Amendment. This Agreement may be altered, amended, modified or
changed (other than any waiver which shall be effective only if made in
accordance with Section 15(g) hereof) only by a written agreement executed by
all the parties hereto.
(g) Waiver. No provision of this Agreement may be waived by any
party hereto unless such waiver is set forth in writing and is executed by the
waiving party. The waiver of any breach of any provision of this Agreement shall
not be deemed to constitute a waiver of any other breach of the same or any
other provision of this Agreement.
(h) Modification and Severability. If a court of competent
jurisdiction declares that any provision of this Agreement is illegal, invalid,
or unenforceable, such provision shall be modified automatically to the extent
necessary to make such provision fully legal, valid, or enforceable. If the
court does not modify any such provision as contemplated herein, but instead
declares it to be wholly illegal, invalid, or unenforceable, such provision
shall be severed from this Agreement, this Agreement and the rights and
obligations of the parties hereto shall be construed as if this Agreement did
not contain such severed provision, and this Agreement otherwise shall remain in
full force and effect.
(i) Enforceability. This Agreement shall inure to the benefit of,
and shall be enforceable by and against, the parties hereto and their respective
successors, permitted assignees, and legal representatives.
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(j) Assignment. No party hereto shall convey, transfer, assign, or
otherwise dispose of all or any portion of its interest in, or its rights and
obligations under, this Agreement without the prior written consent of all the
other parties hereto, which consent shall not be unreasonably withheld or
delayed. Any conveyance, transfer, assignment, or other disposition made or
attempted in violation of this Section 15(j) shall be void and of no force or
effect.
(k) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED
UNDER, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICT-OF-LAWS PROVISIONS THEREOF.
(l) Multiple Counterparts. This Agreement may be executed by the
parties hereto in multiple counterparts, each of which shall be deemed an
original for all purposes, and all of which together shall constitute one and
the same Agreement.
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This Agreement is executed and delivered by the parties hereto as of the
Effective Date.
PARTNERS RESOURCES, INC.
By: /s/ T. Scott Cobb
---------------------------------
T. Scott Cobb
President
PTI INNOVATIONS, INC.
By: /s/ John Severini
---------------------------------
John Severini
President
SCB COMPUTER TECHNOLOGY, INC.
By: /s/ T. Scott Cobb
---------------------------------
T. Scott Cobb
President
/s/ John Severini
------------------------------------
John Severini
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