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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): August 20, 1998
SUPERIOR CONSULTANT HOLDINGS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
DELAWARE
(State or Other Jurisdiction of Incorporation)
0-21485 38-3306717
(Commission File Number) (I.R.S. Employer Identification Number)
4000 Town Center, Suite 1100, Southfield, Michigan 48075
(Address of Principal Executive Office) (Zip Code)
(248) 386-8300
(Registrant's Telephone Number, Including Area Code)
None
(Former Name and Former Address, if Changed Since Last Report)
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Item 2. ACQUISITIONS AND DISPOSITIONS OF ASSETS
On August 20, 1998 Superior Consultant Holdings Corporation (the
"Company") and its wholly-owned subsidiary, Enterprise Consulting Group, Inc.
("Enterprise") executed and delivered a definitive Asset Purchase Agreement with
Whittaker Corporation ("Whittaker") and Aviant Information, Inc. ("Aviant"), a
wholly owned subsidiary of Whittaker. The transactions contemplated by the Asset
Purchase Agreement were also consummated on August 20, 1998.
Pursuant to the Asset Purchase Agreement, Enterprise acquired the
assets of Aviant (other than those assets excluded by the terms of the Asset
Purchase Agreement). The assets acquired included fixed assets, accounts
receivable, contract rights and other general intangibles. The assets acquired
were used by Aviant in connection with its information technology consulting
business and will be used by Enterprise for the same purposes. In connection
with the transaction, 34 Aviant personnel joined Enterprise. The purchase
price for the assets was approximately $5.1 million and was determined through
arm's length negotiation by the parties and based upon evaluation by the
Company and Enterprise of the value of the assets acquired and the
complementary nature of the business of Aviant with that of Enterprise. The
purchase price was paid from working capital of the Company. A portion of the
purchase price has been deposited into escrow in accordance with the terms of
an Escrow Agreement dated August 20, 1998 among the Company, Enterprise,
Whittaker, Aviant and First of America Bank, N.A. Additional information about
this transaction is contained in the press release included as Exhibit 20
hereto.
Item 7. FINANCIAL STATEMENTS AND EXHIBITS.
(a) Financial Statements of Business Acquired
It is impracticable for the Company to file the financial statements as of the
date hereof which are required to be filed pursuant to Item 7(a) of Form 8-K.
The required financial statements will be filed by amendment to this Report no
later than 60 days following the date on which this Report on Form 8-K was
required to be filed.
(b) Pro Forma Information.
It is impracticable for the Company to file the pro forma financial
information as of the date hereof which is required to be filed pursuant to Item
7(b) of Form 8-K. The required pro forma financial information will be filed by
amendment to this Report no later than 60 days following the date on which this
Report on Form 8-K was required to be filed.
Exhibit No. Description
- ----------- -----------
10.1 Asset Purchase Agreement dated as of August 20, 1998
among Superior Consultant Holdings Corporation,
Enterprise Consulting Group, Inc., Whittaker
Corporation and Aviant Information, Inc.
10.2 Escrow Agreement dated as of August 20, 1998 among
Superior Consultant Holdings Corporation, Enterprise
Consulting Group, Inc., Whittaker Corporation, Aviant
Information, Inc. and First of America Bank, N.A.
20 Press Release dated August 20, 1998
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Superior Consultant Holdings Corporation
Dated: September 2, 1998 By: /s/ James T. House
-----------------------------
James T. House
Chief Financial Officer
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Exhibit Index
-------------
Exhibit No. Description
- ----------- -----------
10.1 Asset Purchase Agreement dated as of August 20, 1998 among
Superior Consultant Holdings Corporation, Enterprise
Consulting Group, Inc., Whittaker Corporation and Aviant
Information, Inc.
10.2 Escrow Agreement dated as of August 20, 1998 among Superior
Consultant Holdings Corporation, Enterprise Consulting
Group, Inc., Whittaker Corporation, Aviant Information, Inc.
and First of America Bank, N.A.
20 Press Release dated August 20, 1998
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EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
by and among
SUPERIOR CONSULTANT HOLDINGS CORPORATION,
a Delaware corporation
ENTERPRISE CONSULTING GROUP, INC., a Michigan corporation
AVIANT INFORMATION, INC., a California corporation
and
WHITTAKER CORPORATION, a Delaware corporation
AUGUST 20, 1998
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TABLE OF CONTENTS
1. DEFINITIONS..................................................1
1.1 Accounts Receivable......................................1
1.2 Affiliate................................................1
1.3 Assets...................................................1
1.4 Assumed Liabilities......................................1
1.5 Audited Financial Statements.............................2
1.6 Benefit Plans............................................2
1.7 Bill of Sale.............................................2
1.8 Business.................................................2
1.9 Buyer....................................................2
1.10 INTENTIONALLY OMITTED...................................2
1.11 Closing.................................................2
1.12 Closing Date............................................2
1.13 Code....................................................2
1.14 Compensation Arrangement................................2
1.15 Competitive Business....................................3
1.16 Contracts...............................................3
1.17 Contract Rights.........................................3
1.18 Control.................................................3
1.19 Current Balance Sheet...................................3
1.20 Current Financial Statements............................3
1.21 Damages.................................................3
1.22 Employees...............................................3
1.23 Encumbrances............................................3
1.24 Environmental Laws......................................3
1.25 ERISA...................................................3
1.26 Escrow Account..........................................4
1.27 Escrow Agent............................................4
1.28 Escrow Agreement........................................4
1.29 Escrow Amount...........................................4
1.30 Excluded Assets.........................................4
1.31 Financial Statements....................................4
1.32 Fixed Assets............................................4
1.33 Indemnified Parties.....................................4
1.34 Indemnifying Parties....................................4
1.35 INTENTIONALLY OMITTED...................................4
1.36 Intellectual Property...................................5
1.37 Knowledge...............................................5
1.38 Leased Premises.........................................5
1.39 Litigation..............................................5
1.40 Material Adverse Effect.................................5
1.41 Over 90 Receivables.....................................5
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1.42 Permits.......................................................5
1.43 Purchase Price................................................5
1.44 Restricted Information........................................5
1.45 Seller........................................................6
1.46 Under 90 Receivables..........................................6
1.47 Warranty Expenses.............................................6
1.48 Whittaker.....................................................6
2. SALE AND DELIVERY OF THE ASSETS....................................6
2.1 Sale of the Assets.............................................6
(a) Assets Transferrred.........................................6
(b) Excluded Assets Not Transferred.............................7
2.2 Assumption of Liabilities......................................7
(a) Bill of Sale................................................7
(b) Liabilities Remaining With Seller...........................7
2.3 Purchase Price.................................................8
2.4 The Closing....................................................9
(a) Time and Place..............................................9
(b) Deliveries by Seller........................................9
(c) Deliveries by Buyer.........................................9
(d) Post-Closing Deliveries....................................10
(e) Consents...................................................10
2.5 INTENTIONALLY OMITTED.........................................10
2.6 Allocation of Purchase Price..................................10
2.7 Re-conveyance of Accounts Receivable..........................11
2.8 Prorations and Adjustments....................................11
3. REPRESENTATIONS AND WARRANTIES OF SELLER AND WHITTAKER............11
3.1 Organization..................................................12
3.2 Authorization.................................................12
3.3 No Violation..................................................12
3.4 Ownership of the Assets.......................................13
3.5 Financial Statements..........................................13
3.6 Litigation....................................................13
3.7 INTENTIONALLY OMITTED.........................................14
3.8 Work in Process...............................................14
3.9 Fixed Assets..................................................14
3.10 Leased Premises..............................................14
3.11 Change in Financial Condition and Assets.....................15
3.12 Accounts Receivable..........................................15
3.13 Books and Records............................................15
3.14 Contracts and Commitments....................................15
3.15 Permits......................................................16
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3.16 Compliance With Laws..................................................17
3.17 Employee Relations....................................................17
3.18 Absence of Certain Changes or Events..................................18
3.19 Customers.............................................................18
3.20 Suppliers.............................................................18
3.21 Prepayments and Deposits..............................................19
3.22 Trade Names and Other Intellectual Property...........................19
3.23 Employment Agreements, Benefit Plans, etc.............................19
3.24 Environmental Law.....................................................20
3.25 Taxes.................................................................20
3.26 Computer and Other Systems............................................21
3.27 Disclosure............................................................21
4. REPRESENTATIONS AND WARRANTIES OF BUYER AND SUPERIOR.......................21
4.1 Organization and Authority.............................................21
4.2 Authorization..........................................................22
4.3 No Violation...........................................................22
4.4 Regulatory Approvals...................................................22
5. PRE-CLOSING COVENANTS......................................................22
5.1 Access to Records and Properties of Seller.............................22
(a) Access..............................................................22
(b) Confidentiality.....................................................23
(c) Survival............................................................23
5.2 Conduct of the Business of Seller Pending the Closing..................23
(a) Operation in Ordinary Course........................................23
(b) Restricted Activities...............................................23
(c) No Actions to Violate Representations and Warranties................24
5.3 Consents and Notices...................................................25
5.4 Regulatory Filings.....................................................25
5.5 No Shopping............................................................25
(a) Actions Prohibited..................................................25
(b) Damages to Buyer for Violation......................................26
5.6 Public Announcements...................................................26
5.7 Reasonable Efforts to Satisfy Conditions...............................27
6. CONDITIONS TO CLOSING......................................................27
6.1 Conditions to Each Party's Obligation to Consummate the Transactions...27
(a) Approval of Seller's Shareholder....................................27
(b) Regulatory Filings..................................................27
(c) No Change in Law, Etc...............................................27
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6.2 Additional Conditions to Obligation of Buyer and Superior to
Consummate the Transactions........................................27
(a) Representations and Warranties; Performance of Obligations
of Seller and Whittaker.........................................27
(b) Consents........................................................28
(c) Opinion of Counsel to Seller....................................28
(d) Deliveries......................................................28
(e) INTENTIONALLY OMITTED...........................................28
(f) Legal Proceedings...............................................28
(g) No Change.......................................................28
(h) INTENTIONALLY OMITTED...........................................28
(i) Escrow Agreement................................................28
(j) Employment Agreements and Releases..............................28
(k) Actions and Proceedings.........................................28
6.3 Additional Conditions to Obligations of Seller and Whittaker
to Consummate the Transactions.....................................29
(a) Representations and Warranties..................................29
(b) Performance of Obligations of Buyer and Superior................29
(c) Opinion of Counsel to Buyer.....................................29
(d) Deliveries......................................................29
(e) Escrow Agreement................................................29
(f) Legal Proceedings...............................................29
(g) Employment Agreements...........................................29
(h) Actions and Proceedings.........................................29
7. POST-CLOSING AGREEMENTS................................................30
7.1 Proprietary Information............................................30
(a) Obligation of Seller and Whittaker..............................30
(b) Obligation of Buyer and Superior................................30
(c) Enforcement.....................................................30
7.2 Non-Competition Agreement..........................................30
(a) Obligation of Seller and Whittaker..............................30
(b) Reasonableness..................................................31
(c) Enforcement.....................................................31
7.3 Sharing of Data....................................................31
7.4 Collection of Accounts Receivable..................................32
7.5 Use of Office Space................................................32
7.6 Financial Information..............................................33
7.7 Computer Network...................................................33
7.8 Use of Name........................................................33
8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS..................34
8.1 Representations and Warranties.....................................34
8.2 Survival of Covenants..............................................34
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9. INDEMNIFICATION AND REIMBURSEMENT.......................................34
9.1 Indemnification by Seller and Whittaker.............................34
9.2 Indemnification By Buyer and Superior...............................35
9.3 Notice and Defense of Claims........................................36
9.4 Cooperation.........................................................37
9.5 Confidentiality.....................................................37
9.6 Time Period for Asserting Indemnification...........................37
9.7 Exclusive Remedies..................................................38
9.8 Limitations.........................................................38
10. TRANSFER AND SALES TAX.................................................39
10.1 Payment............................................................39
11. TERMINATION OF AGREEMENT...............................................39
11.1 Termination by Lapse of Time.......................................39
11.2 Termination by Agreement of the Parties............................39
11.3 Termination by Reason of Breach....................................39
(a) By Seller or Whittaker...........................................39
(b) By Buyer or Superior.............................................39
11.4 Effect of Termination..............................................40
12. BROKERS................................................................40
12.1 For Seller and Whittaker...........................................40
12.2 For Buyer and Superior.............................................40
13. MISCELLANEOUS..........................................................40
13.1 Notices............................................................40
13.2 Successors and Assigns.............................................41
13.3 Entire Agreement; Attachments......................................41
13.4 Amendment; Waiver..................................................42
13.5 Expenses...........................................................42
13.6 Governing Law......................................................42
13.7 Article, Section and Paragraph Headings............................42
13.8 Severability.......................................................42
13.9 Counterparts.......................................................42
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SCHEDULES AND EXHIBITS
Schedule 1.4 Excluded Obligations
Schedule 1.22 Employees and Independent Contractors
Schedule 1.30 Excluded Assets
Schedule 2.1(a)* Value of Accounts Receivable
Schedule 3.1 Qualifications in Foreign Jurisdictions
Schedule 3.3 Consents and Approvals of Seller
Schedule 3.4 Encumbrances.
Schedule 3.6 Litigation
Schedule 3.8 Jobs in Process
Schedule 3.9 Fixed Assets
Schedule 3.11 Adverse Changes
Schedule 3.12 Accounts Receivable
Schedule 3.14 Contracts And Agreements
Schedule 3.15 Permits
Schedule 3.16 Notices of Violation or Noncompliance.
Schedule 3.17 Labor and Employment Matters
Schedule 3.18 Material Transactions
Schedule 3.19 Customers
Schedule 3.20 Suppliers
Schedule 3.21 Prepayments and Deposits
Schedule 3.22 Intellectual Property.
Schedule 3.23 Benefit Plans and Compensation Arrangements
Schedule 3.26 Computer and Other Systems
Schedule 4.3. Consents and Approvals of Buyer
* To be delivered at Closing
Exhibit 1.7 Bill of Sale, Assignment and Assumption Agreement
Exhibit 1.28 Escrow Agreement
Exhibit 6.2(c) Opinion of Seller's Counsel
Exhibit 6.3(c) Opinion of Buyer's Counsel
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ASSET PURCHASE AGREEMENT
------------------------
AGREEMENT made as of the 20th day of August, 1998 by and among SUPERIOR
CONSULTANT HOLDINGS CORPORATION, a Delaware corporation ("Superior") ENTERPRISE
CONSULTING GROUP, INC., a Michigan corporation ("Buyer"), AVIANT INFORMATION,
INC., a California corporation ("Seller") and WHITTAKER CORPORATION, a Delaware
corporation ("Whittaker")
PRELIMINARY STATEMENT
---------------------
A. Seller is a wholly owned subsidiary of Whittaker that
provides health care consulting services including information systems
consulting and assistance. Buyer is a wholly owned subsidiary of Superior that
conducts businesses providing similar services.
B. Buyer and Superior desire that Buyer purchase, and Seller and
Whittaker desire that Seller sell, substantially all of the assets and business
of Seller (the "Business"), for the consideration set forth below and the
assumption of certain of Seller's liabilities set forth below, subject to the
terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS
Capitalized terms used in this Agreement shall have the following meanings:
1.1. "ACCOUNTS RECEIVABLE" means all billed and unbilled accounts,
accounts receivable, notes and notes receivable existing on the Closing Date
pertaining to the Business (including any security held by Seller for the
payment thereof) and not previously retired or canceled.
1.2. "AFFILIATE" of a person means any person or entity which controls,
is controlled by or is under common control with such person.
1.3. "ASSETS" means all of the properties, assets and business of
Seller pertaining to the Business to be purchased by Buyer as described in
Section 2.1(a), specifically excluding the Excluded Assets.
1.4. "ASSUMED LIABILITIES" means (i) those liabilities and obligations
of the Business outstanding on the Closing Date under the Contracts, the
Intellectual Property and the Permits (ii) obligations and liabilities under the
Contracts, the Intellectual Property and the Permits arising from
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or relating to activities, events or occurrences happening on or after the
Closing Date; (iii) the obligations of Seller under that certain lease of office
space located in Beaverton, Oregon as contemplated in Section 7.5 and (iv) all
other obligations and liabilities arising from or relating to activities, events
or occurrences happening from the operation of the Business on and after the
Closing Date; but excluding in the case of clause (i) any obligation for
borrowed money, for inter-company advances or liabilities owed to Seller or its
Affiliates and excluding any obligation identified on Schedule 1.4 as an
excluded obligation.
1.5. "AUDITED FINANCIAL STATEMENTS" means the audited balance sheet and
the related audited statements of income, stockholders' equity and cash flows of
Whittaker on a consolidated basis as of and for the fiscal year ended October
31, 1997.
1.6. "BENEFIT PLANS" means all "employee benefit plans," within the
meaning of Section 3(3) of ERISA (other than any plan which is exempt from Title
I of ERISA), for the employees or former employees of Seller or their
dependents, survivors or beneficiaries, which pertain to the Business or cover
the Employees and which are currently maintained by Seller and pertain to the
Business, or in which Seller is or was, at any time preceding the Closing Date,
a participating employer.
1.7. "BILL OF SALE" means a Bill of Sale, Assignment and Assumption
Agreement substantially in the form attached hereto as Exhibit 1.7.
1.8. "BUSINESS" has the meaning set forth in Recital B above.
1.9. "BUYER" means Enterprise Consulting Group, Inc., a Michigan
corporation.
1.10. INTENTIONALLY OMITTED
1.11. "CLOSING" means the closing of the transactions contemplated by
this Agreement.
1.12. "CLOSING DATE" means August 20, 1998 or such other date as the
Closing shall actually occur.
1.13. "CODE" means the Internal Revenue Code of 1986, as amended.
1.14. "COMPENSATION ARRANGEMENT" means any compensation arrangement
with Employees or former Employees which is currently maintained by Seller and
which is not a Benefit Plan, including payroll practices as described in ERISA
Reg. Section 2510.3-1(b), any severance pay plan, arrangement or practice,
percentage compensation plan, executive compensation plan, bonus plan,
incentive compensation plan or arrangement, employee stock ownership or stock
purchase plan, deferred compensation agreement or arrangement to the extent
such plan, agreement or arrangement is not already included in the definition
of Benefit Plan.
2
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1.15. "COMPETITIVE BUSINESS" means any business which (a) is conducted
within any geographical territory in which, on the Closing Date, Seller sells
the products or services sold or provided by the Business and (b) is engaged in
providing any product or service sold or provided by the Business within the one
year prior to the Closing Date or is competitive with the Business as conducted
on the Closing Date.
1.16. "CONTRACTS" means the contracts, commitments, purchase orders,
licenses, leases, rights and other contract documents and agreements, whether
written or oral, which are to be assigned from Seller to Buyer at the Closing,
as identified in Schedule 3.14.
1.17. "CONTRACT RIGHTS" means all of Seller's rights and interest in,
to and under the Contracts.
1.18. "CONTROL" of any person means the ability to direct or cause the
direction of the policies and management of such person, whether through the
ownership of voting securities, by contract or otherwise.
1.19. "CURRENT BALANCE SHEET" means the unaudited balance sheet of
Seller as of July 31, 1998.
1.20. "CURRENT FINANCIAL STATEMENTS" means the Current Balance Sheet
and the related unaudited statement of income of Seller as of and for the nine
months then ended.
1.21. "DAMAGES" means all claims, actions, assessments, liens,
encumbrances, judgments, losses, damages, liabilities (including strict
liabilities), costs and expenses, including but not limited to, interest,
penalties and reasonable attorneys' fees and expenses.
1.22. "EMPLOYEES" means all employees or independent contractors
employed, engaged or retained by Seller in connection with the Business on the
Closing Date, all of whom will be listed on Schedule 1.22 delivered at Closing.
1.23. "ENCUMBRANCES" means all claims, liabilities, liens, mortgages,
pledges, security interests, charges, restrictions, prior assignments,
encumbrances and equities of any kind affecting the Assets.
1.24. "ENVIRONMENTAL LAWS" means all applicable foreign, federal,
state, regional, county and local administrative, regulatory and judicial laws,
rules, statutes, codes, ordinances, regulations, binding interpretations,
binding policies, licenses, permits, approvals, plans, authorizations,
directives, rulings, injunctions, decrees, orders, judgments, common law and any
similar items in effect on the date of this Agreement and through the Closing
Date relating to the protection of human health, safety, or the environment
(including ambient air, surface water, ground water, land surface or subsurface
strata).
1.25. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
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1.26. "ESCROW ACCOUNT" means the account established under the Escrow
Agreement into which funds will be deposited by Buyer, to be held and disbursed
as directed in the Escrow Agreement.
1.27. "ESCROW AGENT" means First of America Bank, a national banking
association. The parties acknowledge that the Escrow Agent is not a party to
this Agreement and is not bound by any of the provisions hereof, and that the
Escrow Agent may assert this acknowledgment as third party beneficiary in
defense of any claim which seeks to impose upon the Escrow Agent any liability
or obligation based on an alleged violation of this Agreement (but not in
defense of any claim alleging violation of the Escrow Agreement).
1.28. "ESCROW AGREEMENT" means the agreement among the parties hereto
and the Escrow Agent, of even date herewith in the form attached hereto as
Exhibit 1.28, pursuant to which the Escrow Agent agrees to hold the Escrow
Amount in escrow and to deliver such amounts according to the terms thereof.
1.29. "ESCROW AMOUNT" means the following amount, which shall be
delivered at Closing to the Escrow Agent in accordance with Section 2.4(c)(ii)
to be held and disbursed pursuant to the terms of the Escrow Agreement:
(a) 10% multiplied by the Purchase Price; plus
(b) the amount of (i) the Over 90 Receivables plus (ii) 50%
multiplied by the value of the Under 90 Receivables, in each case as determined
pursuant to Section 2.1(a)(i), deposited to secure collection of the Accounts
Receivable purchased by Buyer.
1.30. "EXCLUDED ASSETS" means those assets listed on Schedule 1.30
hereto.
1.31. "FINANCIAL STATEMENTS" means the Audited Financial Statements and
the Current Financial Statements, collectively.
1.32. "FIXED ASSETS" means all of the machinery, equipment, computers,
telecommunication systems, fittings and other office equipment, furniture and
leasehold improvements, whether or not reflected as capital assets in the
accounting records of Seller, which are owned by Seller on the Closing Date and
used or useful in the Business.
1.33. "INDEMNIFIED PARTIES" means, as to a particular claim or
circumstance, all persons entitled to be indemnified under Article 9 in respect
thereof and "Indemnified Party" means any such person individually.
1.34. "INDEMNIFYING PARTIES" means, as to a particular claim or
circumstance, all persons required to provide indemnification under Article 9 in
respect thereof and "Indemnifying Party" means any such person individually.
1.35. INTENTIONALLY OMITTED
4
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1.36. "INTELLECTUAL PROPERTY" means all right, title and interest of
Seller in and to all intellectual property rights pertaining to the Business
(other than any Excluded Assets), including but not limited to inventions,
discoveries, trade secrets, processes, formulae, know-how, patents, patent
applications, patent licenses, the name "Aviant Information, Inc." and any
variations thereof, customer lists, trademarks, trademark registrations,
trademark registration applications, trade dress, service marks, software
licenses, copyrights, copyright registrations, copyright registration
applications, technical expertise, research data and other similar property and
the registrations and applications for registration thereof owned or licensed by
Seller and used in the Business and licenses and other agreements to which
Seller is a party (as licensor or licensee) or by which Seller is bound relating
to any of the foregoing kinds of property or rights.
1.37. "KNOWLEDGE" or "to the knowledge" of the Seller, or words of
similar import, mean the actual current knowledge of the following persons after
due inquiry of employees and other officers or directors of Seller who would
reasonably be expected to know the matters within the scope of the
representation or warranty in question: Andrew Rushmere, John Moore, Cordy
Strawser, John Otto, Joseph Alibrandi, Lynne Brickner and Richard Drake.
1.38. "LEASED PREMISES" means the premises currently occupied by the
Business, located at 1785 Voyager Avenue, Simi Valley, California.
1.39. "LITIGATION" means any litigation, suit, action, investigation
(to the best of Seller's knowledge), grievance, arbitration, proceeding or
controversy or claim before any court, administrative agency or other
governmental authority which, if adversely determined, would have a Material
Adverse Effect.
1.40. "MATERIAL ADVERSE EFFECT" means a material adverse effect (a) on
the Business or the Assets or the financial condition of the Business, in each
case taken as a whole, or (b) on the ability of Buyer after the Closing to carry
on the Business substantially in the same manner as it is presently being
conducted.
1.41. "OVER 90 RECEIVABLES" means those Accounts Receivable which on
the Closing Date have been outstanding for more than 90 days
1.42. "PERMITS" means all governmental licenses, permits certificates,
approvals, authorizations and orders material to the ability of Seller to
conduct the Business in the manner conducted, or own and operate the Assets in
the manner owned and operated, in the one year prior to the Closing Date, except
for Permits relating to discontinued lines of business.
1.43. "PURCHASE PRICE" means the purchase price payable for the Assets
pursuant to Section 2.3.
1.44. "RESTRICTED INFORMATION" means all documents, information and
records obtained by Superior or Buyer from Seller or its agents or
representatives regarding the Assets or the Business except for any of such
documents, information and records which (a) at the time of disclosure or
thereafter is generally available to the public (other than as a result of a
disclosure directly or indirectly by Superior or Buyer), (b) was available at
the time of disclosure to Superior
5
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or Buyer from a source other than Seller or its officers, employees, agents or
attorneys, provided that such source is not and was not bound by a
confidentiality agreement or obligation with Seller, or (c) has been
independently developed by Superior or Buyer without violation of any of its
obligations hereunder.
1.45. "SELLER" means Aviant Information, Inc., a California
corporation.
1.46. "UNDER 90 RECEIVABLES" means those Accounts Receivable which on
the Closing Date have been outstanding for 90 days or less.
1.47. "WARRANTY EXPENSES" means all Damages suffered by Superior,
Buyer, any of the Affiliates of either, and the officers, directors, employees,
agents and representatives of any of the foregoing, arising out of or incurred
in connection with any misrepresentation, breach of warranty, or nonfulfillment
of any agreement or covenant on the part of Seller or Whittaker under this
Agreement or under any agreement, document, or instrument delivered pursuant to
this Agreement.
1.48. "WHITTAKER" mean Whittaker Corporation, a Delaware corporation.
2. SALE AND DELIVERY OF THE ASSETS
2.1. SALE OF THE ASSETS.
(a) Assets Transferred. Subject to and upon the terms and
conditions of this Agreement, except as specifically provided in Section 2.1(b)
hereof, at the Closing, Seller shall sell, transfer, convey, assign and deliver
to Buyer, and Buyer shall purchase from Seller, free and clear of all liens,
liabilities, security interests, leasehold interests and encumbrances of any
nature whatsoever (except for statutory liens for taxes not yet due or as
otherwise expressly provided herein), all of the right, title and interest of
Seller in and to the properties, assets and other claims, rights and interests
which on the Closing Date are owned by Seller and which pertain to the Business,
including but not limited to:
(i) All Accounts Receivable. The parties hereto shall agree on
the value of the Accounts Receivable, excluding therefrom the value of
any Accounts Receivable which represent prepaid services, advance or
forward billings, retainer amounts or any other payments or billings
for products or services not delivered or performed as of the Closing
Date, and shall deliver at Closing a statement designated as Schedule
2.1(a), signed by the parties hereto, setting forth the value as so
determined, subject to adjustments (which shall not be material
individually or in the aggregate) in accordance with Section 2.8
below, and specifying those Accounts Receivable which constitute Under
90 Receivables and those which constitute Over 90 Receivables;
(ii) All prepaid expenses except those set forth on Schedule
1.30;
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(iii) All Contracts and Contract Rights, including but not
limited to all of Seller's rights to any security deposits
thereunder and the right to bill for all work performed thereunder
after the Closing;
(iv) All books; payment records; accounts; databases, customer
lists; correspondence; employment and personnel records (to the extent
permitted by applicable law); and other useful business records,
including electronic media, and any confidential or other information
which has been reduced to written, graphic, electronic or other
tangible media, utilized in the conduct of or relating to the Business
or the Assets, subject in each case to Seller's right to retain copies
thereof which Seller reasonably requires for its ongoing operation,
winding-up or dissolution (but which Seller may not disclose or convey
to any third party except for Seller's agents, attorneys and
accountants who have a need to know);
(v) All rights of Seller under express or implied warranties
from the suppliers of the Assets to the extent transferable (but
excluding such rights insofar as the same pertain to liabilities
retained by Seller hereunder);
(vi) The Fixed Assets;
(vii) All Intellectual Property;
(viii) The Permits to the extent transferable; and
(ix) Except as specifically provided in Section 2.1(b) hereof,
all other assets, properties, claims, rights and interests of Seller
which relate to the Business and exist on the Closing Date, of every
kind and nature and description, whether tangible or intangible, real,
personal or mixed.
(b) Excluded Assets Not Transferred. Notwithstanding the provisions
of Section 2.1(a) above, the assets to be transferred to Buyer under this
Agreement shall not include any of the Excluded Assets. If any assets of the
type enumerated in Section 2.1(a) hereof are used both in the Business as well
as in other businesses of Seller as of or immediately prior to the date hereof,
Seller's right, title and interest in and to such assets shall be transferred by
Seller to Buyer pursuant to this Agreement unless they constitute Excluded
Assets.
2.2. ASSUMPTION OF LIABILITIES.
(a) Bill of Sale. At the Closing, Buyer and Superior shall execute
and deliver the Bill of Sale, pursuant to which Buyer shall assume and agree to
perform, pay and discharge the Assumed Liabilities and Superior shall agree to
cause Buyer to do the same.
(b) Liabilities Remaining With Seller. Except as otherwise provided
herein, Buyer shall not assume any of the liabilities of Seller and shall
purchase the Assets free and clear of all liens, mortgages, security interests,
encumbrances and claims and Buyer shall not be or become liable for any claims,
demands, liabilities or obligations not expressly assumed in this Agreement.
Without limiting the foregoing, Buyer shall not at the Closing assume or agree
to perform, pay or
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<PAGE> 15
discharge, and Seller shall remain unconditionally liable for, all obligations,
liabilities and commitments, fixed or contingent, of Seller other than the
Assumed Liabilities, including but not limited to any of the following, except
to the extent that they constitute Assumed Liabilities:
(i) Severance, termination or other payments or benefits
(including but not limited to post-retirement benefits or accrued
vacation pay), whether owing under Seller's severance policy, any
union contract or any employment agreement to any Employees,
liabilities arising under any federal, state or local "plant closing
law", liabilities for the withholding of income taxes, unemployment
insurance, FICA, Medicare and other required withholdings relating to
any Employee, and liabilities accruing under Seller's employee benefit
plans, retirement plans, pension plans or savings or profit sharing
plans, including but not limited to any obligations under Section 601
through 608 of ERISA;
(ii) Worker's compensation claims relating to any Employees;
(iii) Stock option or other stock-based awards made to any
Employees by Seller, if any;
(iv) Liabilities for any federal, state, local or foreign
income taxes (including interest, penalties and additions to such
taxes) or any deferred income taxes of Seller, or (except as provided
in Section 10) liabilities for any tax imposed upon, or incurred by,
Seller, if any, in connection with or related to this Agreement or
the transactions contemplated hereby;
(v) Liabilities incurred in connection with violations of
occupational safety, wage, health, welfare, employee benefit or
environmental laws or regulations, which violations did not result
from the action or inaction of Buyer subsequent to the Closing Date;
(vi) Liabilities incurred by Seller for borrowed money;
(vii) Liabilities for professional errors or omissions
attributable to work performed by personnel of the Seller or the
Business prior to the Closing Date; and
(viii) All other liabilities of the Seller, whether or not
attributable to the Business, arising from or attributable to any
period prior to the Closing Date.
2.3. PURCHASE PRICE. The Purchase Price shall be an amount in cash
equal to (a)(i) $3,395,500 minus (ii) the value, as of the Closing Date, of
customer advances or prepayments which are not included in the Accounts
Receivable, in consideration for the Assets excluding the Accounts Receivable,
plus (b) the value of the Accounts Receivable as determined pursuant to Section
2.1(a)(i). As detailed below, portions of the Purchase Price will be placed in
escrow to secure collection of the Accounts Receivable by Buyer following the
Closing and to secure Buyer against breaches of Seller's representations and
warranties.
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2.4. THE CLOSING.
(a) Time and Place. The Closing shall take place at the offices of
Buyer's counsel, or at such other location as the parties may agree, on August
20, 1998 or such other date as the parties agree. The transfer of the Assets by
Seller to Buyer shall be deemed to occur at 11:59 p.m., Eastern daylight time,
on the Closing Date.
(b) Deliveries by Seller. At the Closing:
(i) Seller shall execute and deliver the Bill of Sale;
(ii) Seller and Whittaker shall execute and deliver, or cause to
be executed and delivered, such certificates of Seller's officers and
such other documents evidencing satisfaction of the conditions
specified in this Agreement as Buyer shall reasonably request;
(iii) INTENTIONALLY OMITTED;
(iv) Seller and Whittaker shall execute and deliver the Escrow
Agreement;
(v) Seller shall execute and deliver, or cause to be executed and
delivered, the statement setting forth the agreed-upon value of the
Accounts Receivable as contemplated by Section 2.1(a)(i); and
(vi) Seller shall execute and deliver, or cause to be executed
and delivered, such other documents, instruments or certificates as
Buyer may reasonably request in order to evidence the accuracy of
Seller's representations or compliance by Seller with its covenants
hereunder.
(vii) Seller and Whittaker shall cause to be delivered to Buyer
and Superior the opinion of counsel contemplated by Section 6.2(c).
(c) Deliveries by Buyer. At the Closing:
(i) Buyer shall deliver to Seller, in immediately available funds
by wire transfer to an account designated by Seller, an amount equal
to the Purchase Price less the Escrow Amount;
(ii) Buyer shall deliver to the Excrow Agent, in immediately
available funds by wire transfer to the Excrow Account, the Escrow
Amount, to be held pursuant to the terms of the Escrow Agreement;
(iii) Buyer and Superior shall execute and deliver, or cause to
be executed and delivered, the Bill of Sale.
(iv) Buyer and Superior shall execute and deliver the Escrow
Agreement;
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<PAGE> 17
(v) Buyer shall execute and deliver, or cause to be executed
and delivered, the statement setting forth the agreed-upon value of
the Accounts Receivable as contemplated by Section 2.1(a)(i)and
(vi) Buyer and Superior shall execute and deliver, or cause to
be executed and delivered, such certificates of Buyer's
officers and such other documents evidencing satisfaction of the
conditions specified in this Agreement as Buyer shall reasonably
request.
(vii) Buyer and Superior shall cause to be delivered to Seller
and Whittaker the opinion of counsel contemplated by Section 6.3(c).
(d) Post-Closing Deliveries. At any time and from time to time after
the Closing, at Buyer's request and without further consideration, Seller (or
its successors) promptly shall (and Whittaker shall cause Seller or its
successors to) execute and deliver such documents and take such other action, as
Buyer may reasonably request to more effectively transfer, convey and assign to
Buyer, and to confirm Buyer's title to, all of the Assets and the Business, to
put Buyer in actual possession and operating control thereof, to assist Buyer in
exercising all rights with respect thereto and to carry out the purpose and
intent of this Agreement; provided, however, that nothing in this Section 2.4(d)
shall require Seller to expend any funds other than in payment of customary
out-of-pocket expenses or to indemnify any third party.
(e) Consents. Seller and Buyer each will use its best efforts to
obtain as promptly as possible written consents to the transfer, assignment or
sublicense to Buyer of all Contracts and Permits being transferred pursuant to
Section 2.1(a) hereof where the approval or other consent of any other person is
required, but such efforts shall not require Seller or Buyer to pay any amount
or to incur any obligation, including but not limited to any obligation to
indemnify any third party. If any such approval or consent cannot be obtained,
Seller will cooperate with Buyer in any reasonable arrangement designed to
provide Buyer with substantially the same economic benefits as if such approval
or other consent had been obtained and the transfer effected on the Closing
Date.
2.5. INTENTIONALLY OMITTED
2.6. ALLOCATION OF PURCHASE PRICE. Within a reasonable time after the
Closing and before preparation of IRS Form 8594, Seller and Buyer will allocate
the Purchase Price among the Assets and Assumed Liabilities and will prepare IRS
Form 8594 in accordance with such allocation. Seller and Buyer agree that they
will not take any position which is materially inconsistent with such allocation
in preparing income, capital or franchise tax returns. Seller and Buyer
acknowledge that such allocation is the result of arm's length bargaining
regarding the fair market value of the Assets. Buyer and Seller shall each file,
with its respective federal income tax return for the year in which the Closing
occurs, IRS Form 8594. Buyer agrees to report the purchase of the Assets, and
Seller agrees to report the sale of the Assets, for income tax purposes in a
manner consistent with the information contained in IRS Form 8594.
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<PAGE> 18
2.7. RE-CONVEYANCE OF ACCOUNTS RECEIVABLE. For each Account Receivable
with respect to which there has been disbursed to Buyer funds from the Escrow
Account pursuant to the Escrow Agreement, Buyer shall re-convey the Account
Receivable to Seller, who thereafter shall be entitled to collect and retain the
proceeds thereof.
2.8. PRORATIONS AND ADJUSTMENTS.
(a) The operation of the Business and the income and normal
operating expenses, including without limitation Assumed Liabilities and prepaid
expenses, attributable thereto through 11:59 p.m. on the date of the Closing,
shall be for the account of Seller and thereafter for the account of Buyer.
Adjustments shall be made and paid at Closing to the extent feasible. A final
accounting of prorated items shall be made by Buyer and Seller, and the sum due
from either to the other pursuant to such accounting shall be paid in
immediately available funds within sixty (60) days after the Closing Date.
(b) Notwithstanding the foregoing, Seller and Buyer acknowledge that
the Accounts Receivable set forth on Schedule 2.1(a) and the customer advances
and prepayments not included in the Accounts Receivable as of the Closing Date
will be imprecise. Accordingly, Seller and Buyer agree to cooperate in
preparing, within thirty days after the Closing Date, an updated Schedule 2.1(a)
to accurately reflect the Accounts Receivable as of the Closing Date and an
updated calculation of the customer advances and prepayments not included in the
Accounts Receivable as of the Closing Date.
(c) To the extent that the updated calculation of customer advances
and prepayments not included in the Accounts Receivable as of the Closing Date
is greater or less than the amounts previously estimated for purposes of
computing the Purchase Price under Section 2.3, then (a) Buyer will promptly pay
to Seller, in immediately available funds, the amount by which the updated
calculation is less than the amount originally estimated or (b) Seller will
promptly pay to Buyer, in immediately available funds, the amount by which the
updated calculation is greater than the amount originally estimated.
(d) Buyer will also promptly (a) send to Seller a check in the
amount of 50% of any net additional Under 90 Receivables reflected on such
updated Schedule 2.1(a) and (b) deliver to the Escrow Agent an amount equal to
(i) any additional Over 90 Receivables plus (ii) 50% of any additional Under 90
Receivables, in each case as reflected on such updated Schedule 2.1(a), to be
held in accordance with the terms of the Escrow Agreement.
3. REPRESENTATIONS AND WARRANTIES OF SELLER AND WHITTAKER
Seller and Whittaker jointly and severally represent and warrant to Buyer
and Superior that the representations and warranties set forth herein are true
and correct as of the date of this Agreement and will be true and correct on the
Closing Date as if made on that date. The representations and warranties in this
Article 3 or in any document delivered to Buyer or Superior pursuant to this
Agreement are deemed to be material and Buyer and Superior are entering into
this Agreement relying on such representations and warranties.
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3.1. ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of California and has
all requisite power and authority (corporate and other) to own its properties,
to carry on the Business as now being conducted, to execute and deliver this
Agreement, the Bill of Sale, the Escrow Agreement and all other documents and
instruments to be executed and delivered by it hereunder and to consummate the
transactions contemplated hereby and thereby. Whittaker is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite power and authority (corporate and other) to
execute and deliver this Agreement, the Escrow Agreement and all other documents
and instruments to be executed and delivered by it hereunder and to consummate
the transactions contemplated hereby and thereby. Seller is duly qualified to do
business and is in good standing in all jurisdictions in which the failure to be
so qualified would have a Material Adverse Effect. Schedule 3.1 contains a true,
correct and complete list of all of the jurisdictions in which Seller has
qualified to do business as of July 31, 1998.
3.2. AUTHORIZATION. The execution and delivery by Seller and Whittaker
of this Agreement, the Escrow Agreement and all other agreements provided for
herein to which each is a party (including but not limited, in the case of
Seller, to the Bill of Sale), and the consummation of all transactions
contemplated hereby and thereby, has been duly authorized by all requisite
corporate action of Seller (subject to shareholder approval if required by
applicable law or Seller's Articles of Incorporation or Bylaws) and Whittaker.
This Agreement and all such other agreements and obligations entered into and
undertaken by Seller or Whittaker in connection with the transactions
contemplated hereby constitute (subject only to shareholder approval as
described above) the valid and legally binding obligations of Seller and
Whittaker, enforceable against each in accordance with their respective terms
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally, and by
principles of equity, whether applied in a proceeding at law or in equity.
3.3. NO VIOLATION. Except as specified in Schedule 3.3, the execution
and delivery by Seller and Whittaker and the performance by Seller and Whittaker
of their respective obligations under this Agreement, the Bill of Sale, the
Escrow Agreement and the agreements provided for herein, and the consummation by
Seller and Whittaker of the transactions contemplated hereby and thereby, will
not, with or without the giving of notice or the passage of time or both, (a)
violate the provisions of any law, rule or regulation applicable to Seller or
Whittaker; (b) violate the provisions of the Articles of Incorporation or Bylaws
of Seller or Whittaker; (c) violate any judgment, decree, order or award of any
court, governmental body or arbitrator which is binding on Seller or Whittaker;
or (d) conflict with or result in the breach or termination of any term or
provision of, or constitute a default under, or cause any acceleration under, or
cause the creation of any lien, charge or encumbrance upon the Assets pursuant
to, any indenture, mortgage, deed of trust or other instrument or agreement to
which Seller is a party or by which it or any of the Assets are or may be bound,
other than with respect to obligations of Seller which will be discharged at or
prior to Closing and except, in the case of clauses (a), (c) and (d), for such
violations, conflicts, breaches, terminations, defaults, liens, charges and
encumbrances as would not have, individually or in the aggregate, a Material
Adverse Effect. Schedule 3.3 attached hereto sets forth a true, correct and
complete list of all consents, approvals, permissions, licenses, authorizations
and other requirements prescribed by law, rule, regulation or by contract in
connection with the
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consummation by Seller or Whittaker of the transactions contemplated by this
Agreement that, if not complied with by Seller or Whittaker, would result,
individually or in the aggregate, in a Material Adverse Effect.
3.4. OWNERSHIP OF THE ASSETS.
(a) Seller is, and at the Closing will be, the true and lawful owner
of the Assets to be conveyed by Seller, and will have the right to sell and
transfer to Buyer good and marketable title to all Assets, free and clear of all
Encumbrances, except for the Assumed Liabilities, those Encumbrances listed on
Schedule 3.4, the lien of taxes not yet delinquent or the validity of which are
being contested in good faith by appropriate actions and other matters,
including statutory liens, which would not have a Material Adverse Effect. The
delivery to Buyer of the instruments of transfer of ownership contemplated by
this Agreement will vest good and marketable title to all Assets in Buyer, free
and clear of all Encumbrances except for the Assumed Liabilities, those
Encumbrances listed on Schedule 3.4, the lien of taxes not yet delinquent or the
validity of which are being contested in good faith by appropriate actions and
other matters, including statutory liens, which would not have a Material
Adverse Effect.
(b) The Assets to be conveyed to Buyer hereunder constitute
substantially all properties, assets, rights and claims (other than Excluded
Assets) which are necessary to the conduct of the Business as currently
conducted by Seller.
3.5. FINANCIAL STATEMENTS.
(a) Whittaker has previously delivered to Buyer the Audited
Financial Statements. Seller has also previously delivered to Buyer its Current
Balance Sheet and the other Current Financial Statements. The Financial
Statements have been prepared in accordance with generally accepted accounting
principles applied consistently with past practice, except for changes to past
practice required by generally accepted accounting principles and disclosed
therein and except that the Current Financial Statements do not include note
information and are subject to year-end adjustments which would not,
individually or in the aggregate, have a Material Adverse Effect.
(b) The Financial Statements are accurate and complete (except for
minor matters which will not, individually or in the aggregate, result in a
Material Adverse Effect) and fairly present, as of their respective dates, the
financial condition, retained earnings (deficit), assets and liabilities of
Whittaker (with respect to the Audited Financial Statements) and Seller (with
respect to the Current Financial Statements) and the respective results of
operations and (with respect to the Audited Financial Statements) cash flows of
each for the periods indicated, in accordance with generally accepted accounting
principles applied consistently with past practice (except for changes to past
practice required by generally accepted accounting principles and disclosed
therein), subject, in the case of the Current Financial Statements, to year-end
adjustments which would not, individually or in the aggregate, have a Material
Adverse Effect.
3.6. LITIGATION. Except as set forth on Schedule 3.6 attached
hereto, Seller is not a party to any pending Litigation, neither the Business
nor any of the Assets are subject to any pending Litigation, and to Seller's
knowledge it has not been threatened with any Litigation which threat
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<PAGE> 21
has not been resolved, except for in each case Litigation that if not resolved
favorably to Seller would not have a Material Adverse Effect. Seller is not in
violation of or in default with respect to any judgment, order, award, writ,
injunction, decree or rule of any court, governmental authority or any
regulation of any administrative agency or governmental authority, where such
violation or default would have a Material Adverse Effect or would adversely
affect the consummation of the transactions contemplated hereby. Except as set
forth in Schedule 3.6, Seller has not received notice of any product liability
claim, warranty claim or other claim whatsoever which, if decided adversely,
individually or in the aggregate would have a Material Adverse Effect.
3.7. INTENTIONALLY OMITTED
3.8. WORK IN PROCESS. Schedule 3.8 provides a complete listing as of
July 31, 1998 of all jobs in process related to the Business, the costs of each
incurred through July 31, 1998 and the estimated costs of completion as of July
31, 1998. The estimations of the costs of completion, including but not limited
to the assumptions used in deriving them, are reasonable for the industry in
which the Business operates and are consistent with Seller's past practices. The
percentage of total income for each fixed-price job in process which Seller has
recognized as of the Closing Date does not exceed the percentage of completion
of such job as of the Closing Date. For purposes hereof, a "fixed price" job is
one which provides a fixed dollar payment to Seller or the Business for
completion of the job. Since July 31, 1998, there has been no change in the
information contained in Schedule 3.8 which Seller believes will have a Material
Adverse Effect.
3.9. FIXED ASSETS. Schedule 3.9 sets forth a true, correct and complete
list of all Fixed Assets as of July 31, 1998 having on an individual basis a
book value or a fair market value in excess of $500. Except as set forth in
Schedule 3.9, the Fixed Assets taken as a whole are in good condition and repair
and are sufficiently operational to enable Buyer to conduct the Business in
essentially the same manner in which it has been conducted by Seller.
3.10. LEASED PREMISES.
(a) The Leased Premises comply in all material respects, with the
requirements of all building, zoning, subdivision, health, safety,
environmental, pollution control, waste products, sewage control and all other
applicable statutes, laws, codes, ordinances, rules, orders, regulations and
decrees of any and all government agencies, except for such failures to comply
as have not had and will not have a Material Adverse Effect. There is no uncured
breach of any material condition or requirement imposed by, or pursuant to, any
permit or license issued with respect to the Leased Premises. There is no action
pending or, to the best of Seller's knowledge, threatened by any government
agencies claiming that the Leased Premises violates any government regulations
or threatening to shut down the Business or the use of the Assets or to prevent
the Assets from being used as presently used.
(b) All Fixed Assets located in the buildings located on or included
in the Leased Premises are in good condition and repair, normal wear and tear
excepted.
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3.11. CHANGE IN FINANCIAL CONDITION AND ASSETS. Except as set forth on
Schedule 3.11 attached hereto, since July 31, 1998 there has been no change (not
including world events or general economic conditions) in the Business or the
Assets which has had a Material Adverse Effect. Seller has no knowledge of any
existing or threatened occurrence, event or development which it believes will
have a Material Adverse Effect.
3.12. ACCOUNTS RECEIVABLE. Schedule 3.12 sets forth a true, correct and
complete list, as of July 31, 1998, of all current Accounts Receivable,
including an aging thereof and all amounts credited against such receivables
under any rebate, discount, or allowance policies. All such Accounts Receivable
arose out of the sales of products or services in the ordinary course of
business and, except as set forth on Schedule 3.12, Seller has no knowledge that
any such Account Receivable is not collectible in the face value amount thereof
in the ordinary course, using normal collection procedures, subject to
non-collectible accounts in amounts consistent with Seller's normal collection
experience, net of returns as set forth thereon. Since July 31, 1998, there has
been no change in the information contained in Schedule 3.12 which would have a
Material Adverse Effect.
3.13. BOOKS AND RECORDS. The general ledgers and books of account of
Seller with respect to the Business and the Assets, all federal, state and local
income, franchise, property and other tax returns filed by Seller with respect
to the Business or the Assets, and all other books and records of Seller with
respect to the Business and the Assets, are in all material respects complete
and correct and have been maintained in accordance with good business practice
and in accordance with all applicable procedures required by laws and
regulations other than any inaccuracy, omission or variance from such practice
and procedures which has no Material Adverse Effect.
3.14. CONTRACTS AND COMMITMENTS.
(a) Schedule 3.14 attached hereto contains a true, complete and
correct list of the following contracts and agreements as of July 31, 1998,
whether written or oral, which relate to the Business:
(i) All loan agreements, indentures, mortgages and guaranties by
which the Assets are bound;
(ii) All pledges, conditional sale or title retention agreements,
security agreements, equipment obligations, personal property leases
and lease purchase agreements relating to any of the Assets to which
Seller is a party or by which any of the Assets is bound;
(iii) INTENTIONALLY OMITTED
(iv) All sales agreements, service agreements and client
contracts to which Seller is a party which provide for payment or
receipt by Seller of more than $10,000;
(v) All agency, distributor, sales representative and similar
agreements to which Seller is a party which provide for payment or
receipt by Seller of more than $10,000;
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(vi) All written return policies and warranties, and to Seller's
knowledge, all oral return policies and warranties, relating to
products or services provided by the Business as the same are
currently in effect or may have been in effect from time to time since
March 1, 1997, as well as any exception to such policies, all
agreements to which Seller is a party relating to cooperative
advertising arrangements, all written rebate, discount or allowance
arrangements and to Seller's knowledge, all oral rebate, discount or
allowance arrangements; and
(vii) All other contracts, agreements or other binding
arrangements, whether written or oral, which are material to the
Business as conducted as of the date hereof and the Closing Date or
the Assets taken as a whole.
(b) Schedule 3.14 also identifies the Contracts, which shall be
assigned by Seller to Buyer. Except as set forth on Schedule 3.14:
(i) Each Contract is a valid and binding agreement of Seller,
enforceable against Seller in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally,
and by principles of equity (whether considered in a proceeding at law
or in equity) and Seller has no knowledge that any Contract is not a
valid and binding agreement of the other parties thereto;
(ii) Seller has fulfilled all material obligations required
pursuant to the Contracts to have been performed by it prior to the
date hereof, and Seller is aware of no reason that it would not have
been able to fulfill, when due, all of the obligations under the
Contracts which remain to be performed after the date hereof;
(iii)Seller is not (and to the best of Seller's knowledge no
other party is) in breach of or default in any material respect under
any Contract, and no event has occurred which with the passage of time
or giving of notice or both would constitute such a default, result in
a loss of rights or result in the creation of any lien, charge or
encumbrance, thereunder;
(iv) Except as set forth on Schedule 3.3, the continuation,
validity and effectiveness of each Contract would not be affected by
the transfer thereof to Buyer under this Agreement and all such
Contracts are assignable to Buyer without the consent of any other
party.
(c) True, correct and complete copies of all of the written
Contracts have been delivered by Seller to Buyer. True, correct and complete
written descriptions of all of the oral Contracts have been delivered by Seller
to Buyer. Since July 31, 1998, to the knowledge of Seller there has been no
change in the information contained in Schedule 3.14 which would have a Material
Adverse Effect.
3.15. PERMITS. Seller has all Permits, other than those the absence of
which would not have a Material Adverse Effect, copies of which Permits will be
provided to Buyer upon request. Seller has not engaged in any activity which
would cause or, to the knowledge of Seller, allow revocation or suspension of
any such Permit and no action or proceeding looking to or contemplating the
revocation or suspension of any such Permit is pending or, to the knowledge of
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<PAGE> 24
Seller, threatened. Except as set forth on Schedule 3.15, there are no existing
defaults or events of default or events or state of facts which with notice or
lapse of time or both would constitute a default by Seller under any Permit,
except any such default or event of default which would not have a Material
Adverse Effect. Except as set forth on Schedule 3.15, all Permits are
transferable to Buyer and the consummation of the transactions contemplated by
this Agreement will in no way affect the continuation, validity or effectiveness
of the Permits or require the consent of any third party under any such Permit
which consent has not been obtained.
3.16. COMPLIANCE WITH LAWS. Seller is not in violation of, and the
Business does not violate, any law, regulation or ordinance (including but not
limited to laws, regulations or ordinances relating to building, zoning,
environmental, disposal of hazardous substances, land use or similar matters)
relating to the Assets or the operation of the Business, the violation of which
would have a Material Adverse Effect. Except as set forth on Schedule 3.16,
Seller has not received any notice or communication from any federal, state or
local governmental or regulatory authority or otherwise of any such violation or
noncompliance.
3.17. EMPLOYEE RELATIONS.
(a) To the extent they relate to the Employees, Seller is in
compliance in all material respects, with all material federal, state and local
laws respecting employment and employment practices, terms and conditions of
employment, and wages and hours, and is not engaged in any unfair labor
practice, and there are no material arrearages in the payment of wages or taxes
or workers compensation assessments or penalties
(b) Except as set forth on Schedule 3.17:
(i) None of the Employees are represented by any labor union.
(ii) There is no material labor grievance pending against or
affecting Seller with respect to the Employees and no unfair labor
practice complaint against Seller with respect to the Employees
pending before the National Labor Relations Board or any state or
local agency affecting Seller.
(iii) There is no pending labor strike or other material labor
trouble affecting Seller. There is no petition pending before the
National Labor Relations Board and no question concerning any petition
is presently being raised or, to the knowledge of Seller, is
threatened respecting the Employees or former Employees.
(iv) There is no pending litigation, or other proceeding or
basis for an unasserted claim against Seller based on any Employee's
or group of Employees' employment relationship with Seller (insofar
as such relationship pertains to the Business), including but not
limited to claims for contract, tort, discrimination, employee
benefits or wrongful termination. No charges against Seller with
respect to any Employee or former Employee are pending before the
Equal Employment Opportunity Commission or any state, local or
foreign agency responsible for the prevention of unlawful employment
practices.
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(v) Seller has not received notice of the intent of any federal,
state, local or foreign agency responsible for the enforcement of
labor or employment laws to conduct an investigation against Seller
with respect to the Employees or former Employees and, to the
knowledge of Seller, no such investigation is in progress.
(c) Seller has previously provided Buyer with a true, correct and
complete list of Seller's payroll for the Employees as of July 31, 1998 and will
deliver a true, correct and complete list of Seller's payroll for the Employees
as of the Closing Date.
(d) INTENTIONALLY OMITTED
(e) There are no employees or independent contractors, other than
those listed on Schedule 1.22, whose contributions to the Business within the
last twelve months have been, or are currently, material to the successful
conduct of the Business in the manner heretofore conducted.
3.18. ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth on
Schedule 3.18 attached hereto, since April 30, 1998, Seller has not entered into
any material transaction with respect to the Business which is not in the usual
and ordinary course of business, and, without limiting the generality of the
foregoing, Seller has not:
(a) Mortgaged, pledged or subjected to lien, charge or other
encumbrance any of the Assets;
(b) Sold or purchased, assigned or transferred any material assets
used in the operation of the Business;
(c) Suffered any casualty losses to the Assets, whether insured or
uninsured, and whether or not in the control of Seller, in excess of $50,000 in
the aggregate, or waived any rights of any value unless such loss or waiver is
reflected in the Current Financial Statements;
(d) Suffered any Material Adverse Effect.
Seller has provided to Buyer a true, complete and accurate list of Seller's
backlog as of the last day of month from October, 1997 through July, 1998.
3.19. CUSTOMERS. Schedule 3.19 sets forth a true, correct and complete
list of the names of the customers of the Business which accounted for dollar
volumes of purchases from Seller related to the Business, for the nine months
ended July 31, 1998, in excess of $10,000. None of the customers listed on
Schedule 3.19 has notified Seller that it intends to discontinue its
relationship with Seller, except as set forth on such Schedule.
3.20. SUPPLIERS. Schedule 3.20 sets forth a true, correct and complete
list of the names of the suppliers of Seller relating to the Business which
accounted for dollar volumes of purchases by Seller, for the nine months ended
July 31, 1998, in excess of $10,000. Seller is not a party to any requirements
contract relating to the purchase of property used in the conduct of the
Business.
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None of the suppliers listed on Schedule 3.20 has notified Seller that it
intends to discontinue its relationship with Seller, except as set forth on such
Schedule.
3.21. PREPAYMENTS AND DEPOSITS. Except as reflected on Schedule 3.21,
Seller has no prepayments or deposits from customers for products to be shipped,
or services to be performed, after the Closing Date relating to the Business.
3.22. TRADE NAMES AND OTHER INTELLECTUAL PROPERTY. Schedule 3.22
attached hereto sets forth a true, correct and complete list and, where
appropriate, a description of, all Intellectual Property. Other than as set
forth on Schedule 3.22, during Seller's existence the only name used in
connection with the Business by Seller is its corporate name set forth in the
preamble of this Agreement. Except as otherwise disclosed in Schedule 3.22,
Seller is the sole and exclusive owner, free and clear of all Encumbrances, of
all Intellectual Property applicable to the Business and all designs, permits,
labels and packages used on or in connection therewith, and Seller has not
received notice of any claim against Seller that any of its operations,
activities, products or publications used in connection with the Business
infringes on any patent, trademark, trade name, copyright or other property
right of a third party, or that it is illegally or otherwise using the trade
secrets, formulae or any property rights of others. Seller has taken all steps
it deems reasonably necessary to protect its right, title and interest in and to
the Intellectual Property. Except as set forth in Schedule 1.30 or as indicated
in Schedule 3.22, there is no property that is not owned or leased by Seller but
that is used by Seller in the operation of the Business of the type which, if
owned or leased by Seller, would constitute Intellectual Property (other than
property the unavailability of which to Buyer would not have a Material Adverse
Effect).
3.23. EMPLOYMENT AGREEMENTS, BENEFIT PLANS, ETC.
(a) Seller has no written employment or other written agreements,
and to the knowledge of Seller has no verbal employment, consulting or other
similar agreements, with any of the Employees, except as disclosed in Schedule
3.23.
(b) Seller does not maintain or, except as disclosed in Schedule
3.23, contribute to, any Benefit Plan or Compensation Arrangement.
(c) Each of the Benefit Plans and Compensation Arrangements
disclosed in Schedule 3.23 has been duly adopted as required and operated in
material compliance with its provisions and is in material compliance with all
applicable requirements of ERISA and the Code, including the timely adoption of
necessary amendments and submissions thereof to the Internal Revenue Service,
where required.
(d) Each of the Benefit Plans disclosed in Schedule 3.23 which is
intended to be a qualified plan under Section 401(a) of the Code has received a
favorable determination of the Internal Revenue Service to that effect. To the
knowledge of Seller, no event has occurred which would cause the loss of
qualification under Section 401(a) of the Code or the imposition of any
liability, penalty or tax thereunder with respect to the operation of such
Benefit Plans which in each case would result in a Material Adverse Effect. To
the extent that the failure to do same would result in a Material Adverse
Effect, Seller has (i) timely made all contributions required to be made
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to each of the Benefit Plans by law or by the terms of the Benefit Plan and (ii)
has timely complied with all material reporting and disclosure requirements
applicable to each of the Benefit Plans under ERISA and the Code. To the extent
same would result in a Material Adverse Effect, Seller has not materially
breached any of the fiduciary responsibility provisions of Title I of ERISA nor
engaged in any transaction prohibited under Section 406 or 407 of ERISA or
Section 4975 of the Code.
(e) INTENTIONALLY OMITTED
(f) Except as required under Section 4980B of the Code and Sections
601 through 608 of ERISA, no Benefit Plan provides health or life insurance
benefits for retirees or future retirees which would result in a Material
Adverse Effect.
(g) INTENTIONALLY OMITTED
3.24. ENVIRONMENTAL LAW. The Leased Premises are not listed or, to
Seller's knowledge, proposed for listing on the National Priorities List or
listed on the Comprehensive Environmental Response, Compensation, Liability
Information System List or any comparable list maintained by any foreign,
federal, state, regional, county or local authority. There are no proceedings
pending, or to the knowledge of Seller, threatened, under any Environmental Law
against or affecting Seller, or the Leased Premises in any court or before any
governmental authority or arbitration board or tribunal which, if adversely
determined, would have a Material Adverse Effect. To the knowledge of Seller,
Seller is not in default with respect to any order of any court or governmental
authority or arbitration board or tribunal with respect to any Environmental Law
to the extent such default would have a Material Adverse Effect.
3.25. TAXES. Except as set forth on Schedule 3.25:
(a) To the extent that they could become a lien upon any of the
Assets or result in a Material Adverse Effect, Seller has paid or made adequate
provision on its books and records for the payment of all Federal, state, local
and foreign taxes, including withholding taxes, unemployment insurance
contributions, FICA, Medicare and penalties or other payments required, as the
case may be, to be paid or accrued in respect of its business, assets and
employees for all periods up to and including the Closing Date (whether or not
assessed), and is not in default in payment of any such tax and has duly filed
all tax reports and returns required in connection therewith to be filed by it.
(b) Seller has received no notice of any tax deficiency outstanding,
proposed or assessed against it, nor has it executed any waiver of any statute
of limitations on the assessment or collection of any tax or executed or filed
with the Internal Revenue Service or any other taxing authority any agreement
now in effect extending the period for assessment or collection of any taxes,
which in any case could have a Material Adverse Effect. There are no material
tax liens upon, pending against or, to the knowledge of Seller, threatened
against any of the Assets.
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3.26. COMPUTER AND OTHER SYSTEMS To Seller's knowledge, the computer
systems and other business systems (including but not limited to telephone and
voice mail systems) and associated and peripheral equipment, computer software,
technical and other documentation currently used by Seller in the operation of
the Business and data entered into or created by the foregoing from time to time
constitute all such items necessary for the operation of the Business in
substantially the manner operated as of the Closing Date. Seller has no
knowledge that any of such items is not Year 2000 Compliant except as specified
in Schedule 3.26. For purposes hereof, "Year 2000 Compliant" means that such
systems (a) can process, manipulate and store data relating to dates after
December 31, 1999 as well as dates on or prior thereto; (b) can interpret and
respond to two-digit year date input in a manner that resolves any ambiguity as
to the century in which the year occurs; and (c) will function accurately and
without interruption before, during, and after January 1, 2000, without any
adverse change in operations associated with the advent of the new century.
Except as specified in Schedule 3.26, disaster recovery plans are in effect and
are adequate to ensure that such systems can be replaced or substituted without
material disruption to the business of Seller. Except as specified in Schedule
3.26, Seller has valid licenses for all software used by it in the conduct of
the Business for which licenses are required.
3.27. DISCLOSURE. No representation or warranty by Seller in this
Agreement or in any Exhibit or Schedule hereto, or in any certificate delivered
or to be delivered pursuant to this Agreement, contains or will contain any
untrue statement of a material fact or omits or will omit any material fact
necessary in order to make the statements contained therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER AND SUPERIOR
Buyer and Superior jointly and severally represent and warrant to Seller
and Whittaker that the representations and warranties set forth herein are true
and correct as of the date of this Agreement and will be true and correct on the
Closing Date as if made on that date. The representations and warranties in this
Article 4 or in any document delivered to Seller or Whittaker pursuant to this
Agreement are deemed to be material and Seller and Whittaker are entering into
this Agreement relying on such representations and warranties.
4.1. ORGANIZATION AND AUTHORITY. Buyer is duly organized and validly
existing and in good standing under the laws of the State of Michigan, and has
requisite power and authority (corporate and other) to own its properties and to
carry on its business as now being conducted. Buyer has full power to execute
and deliver this Agreement, the Bill of Sale, the Escrow Agreement and all other
documents and instruments to be executed and delivered hereunder and to
consummate the transactions contemplated hereby and thereby. Superior is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite power and authority (corporate
and other) to execute and deliver this Agreement, the Bill of Sale, the Escrow
Agreement and all other documents and instruments to be executed and delivered
by it hereunder and to consummate the transactions contemplated hereby and
thereby.
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4.2. AUTHORIZATION. The execution and delivery of this Agreement, the
Bill of Sale, the Escrow Agreement and all other agreements provided for herein
by Buyer and Superior, and the consummation by Buyer and Superior of all
transactions contemplated hereby and thereby, have been duly authorized by all
requisite corporate action of Buyer and Superior. This Agreement and all such
other agreements and obligations entered into and undertaken in connection with
the transactions contemplated hereby constitute the valid and legally binding
obligations of Buyer and Superior, enforceable against each in accordance with
their respective terms except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors
rights generally and by principles of equity, whether applied in a proceeding at
law or in equity.
4.3. NO VIOLATION. The execution and delivery by Buyer and Superior and
performance by Buyer and Superior of their respective obligations under this
Agreement, the Bill of Sale, the Escrow Agreement and all other agreements
provided for herein by Buyer, and the consummation by Buyer of the transactions
contemplated hereby and thereby, will not, with or without the giving of notice
or the passage of time or both, (a) violate the provisions of any law, rule or
regulations applicable to Buyer or Superior; (b) violate the provisions of the
Articles of Incorporation or Bylaws of Buyer or Superior; or (c) violate any
judgment, decree, order or award of any court, governmental body or arbitrator
applicable to Buyer or Superior. Schedule 4.3 attached hereto sets forth a true,
correct and complete list of all consents, approvals, permissions, licenses,
authorizations and other requirements prescribed by law, rule, regulation or by
contract in connection with the consummation by Buyer and Superior of the
transactions contemplated by this Agreement that, if not complied with by Buyer
or Superior, would result, individually or in the aggregate, in a material
adverse effect on the ability of either to perform its obligations under this
Agreement.
4.4. REGULATORY APPROVALS. All consents, approvals, authorizations and
other requirements prescribed by any law, rule or regulation which must be
obtained or satisfied by Buyer or Superior and which are necessary for the
consummation by Buyer or Superior of the transactions contemplated by this
Agreement have been, or will be prior to the Closing Date, obtained and
satisfied.
5. PRE-CLOSING COVENANTS
5.1. ACCESS TO RECORDS AND PROPERTIES OF SELLER.
(a) Access. Between the date of this Agreement and the Closing Date,
subject to applicable laws, rules and regulations and to fiduciary and privacy
obligations of which Seller will advise Buyer in writing, Seller shall afford
the officers, attorneys, accountants and other authorized representatives of
Buyer reasonable access upon reasonable notice and during normal business hours
to all personnel, offices, properties, books and records of Seller (including
but not limited to documentation of any of the matters set forth in Seller's
representations and warranties in Article 3), so that Buyer may have full
opportunity to make such investigation as it shall desire to make of the
management, business, properties and affairs of the Business (provided that such
access is not unreasonably disruptive to the normal business operations of
Seller), and Buyer shall
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be permitted to make abstracts from, or copies of, all such books and records.
Seller shall furnish to Buyer such financial and operating data and other
information as to the Assets and the Business as Buyer shall reasonably request.
In connection therewith, Buyer shall have the right to contact and hold
discussions with Seller's customers, suppliers and the landlord of the Leased
Premises; provided, that Buyer shall not contact any of such parties without
first notifying Seller and shall cooperate with Seller in structuring such
contacts so as to provide minimal disruption to Seller's business.
(b) Confidentiality. Between the date of this Agreement and the
Closing Date, each of Buyer and Superior shall, and shall cause its
representatives to, keep all Restricted Information confidential, and without
the prior written consent of Seller, each of Buyer and Superior shall not, and
shall cause its representatives not to, disclose the Restricted Information in
any manner whatsoever, in whole or in part, or use the Restricted Information
for any purpose other than evaluating the transactions contemplated by this
Agreement; provided, however, that each of Buyer and Superior and its
representatives may provide such Restricted Information in response to judicial
or administrative process or applicable governmental laws, rules, regulations,
orders or ordinances, but only that portion of the Restricted Information which,
on the advice of counsel, is legally required to be furnished and provided that
Superior or Buyer notifies Seller of its obligation to provide such Restricted
Information prior to such disclosure and fully cooperates with Seller to protect
the confidentiality of such Restricted Information under applicable law. The
Restricted Information, and all copies thereof, will be destroyed or returned
immediately, without retaining any copies thereof, if this Agreement is
terminated prior to the Closing.
(c) Survival. The provisions of Section 5.1(b) shall survive any
termination of this Agreement.
5.2. CONDUCT OF THE BUSINESS OF SELLER PENDING THE CLOSING.
(a) Operation in Ordinary Course. From the date hereof to the
Closing, except as expressly contemplated by this Agreement or to the extent
that Buyer shall otherwise consent in writing, Seller shall operate the Business
as presently operated and only in the ordinary course, and, consistent with such
operation, Seller shall use its best efforts to preserve the present Employees,
reputation and business organization of Seller and the relationship of Seller
with persons having business dealings with it.
(b) Restricted Activities. From the date hereof to the Closing,
except as expressly contemplated by this Agreement or to the extent that Buyer
shall otherwise consent in writing, Seller shall not, and shall not agree to:
(i) effect any amendment to its Articles of Incorporation or
Bylaws which would impair the ability of Seller to consummate the
transactions contemplated hereunder;
(ii) mortgage, pledge, or subject to any lien, charge or any
other encumbrance any of the Assets except for statutory liens for
amounts not yet due;
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(iii) sell, assign, or transfer any of the Assets, except in the
ordinary course of business and except for excess and obsolete items
sold as scrap to parties other than customers and competitors of the
Business;
(iv) merge or consolidate with or into any corporation or other
entity;
(v) compromise any claims, or waive any rights, of material
value to the Business;
(vi) modify, amend, alter or terminate any of the Contracts
except for modifications, amendments, alterations or terminations
which, individually or in the aggregate, would not result in a
Material Adverse Effect;
(vii) take or omit to take any act constituting a breach or
default under any contract, indenture or agreement by which any of the
Assets are bound except those which, individually or in the aggregate,
would not have a Material Adverse Effect;
(viii) fail to use best efforts to (A) preserve the possession,
control and good condition of the Assets and Business, (B) keep in
faithful service its present officers and key Employees, (C) preserve
the goodwill of its customers, suppliers, agents, brokers and others
having business relations with the Business, and (D) keep and preserve
the Business existing on the date hereof until the Closing Date;
(ix) fail to operate the Business and maintain its books,
accounts and records in the customary manner and in accordance with
past practice;
(x) INTENTIONALLY OMITTED
(xi) enter into any new, or amend or modify any existing,
collective bargaining agreement affecting the Employees;
(xii) enter into any joint venture, partnership or other
arrangement for the conduct of the Business;
(xiii) INTENTIONALLY OMITTED
(xiv) INTENTIONALLY OMITTED
(xv) INTENTIONALLY OMITTED
(xvi) make any capital investment in any subsidiary, joint
venture or other person or entity.
(c) No Actions to Violate Representations and Warranties. Seller
and Whittaker shall each refrain from taking any action which would render
any representation and warranty contained in Article 3 hereof inaccurate at any
time between the date hereof and the Closing Date, including as of the Closing
Date, and shall promptly advise Buyer of any inaccuracy or breach of
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any representation and warranty, covenant, condition or obligation of Seller or
Whittaker contained in this Agreement. Buyer and Superior shall each refrain
from taking any action which would render any representation and warranty
contained in Article 4 hereof inaccurate at any time between the date hereof and
the Closing Date, including as of the Closing Date, and shall promptly advise
Seller of any inaccuracy or breach of any representation and warranty, covenant,
condition or obligation of Buyer or Superior contained in this Agreement.
5.3. CONSENTS AND NOTICES. Promptly after the date hereof, Seller and
Buyer shall cooperate and use their best efforts to obtain all consents,
waivers, approvals and authorizations which may be necessary to effectuate this
Agreement and to consummate the transactions contemplated hereby in accordance
with the terms hereof, or to continue in effect and to assure that Seller (prior
to Closing) and Buyer (from and after the Closing) shall continue to be entitled
to all of the benefits of the Contracts, instruments, licenses, Permits,
authorizations, commitments and orders of Seller and shall give all notices to
third parties required to be given in contemplation and as a result of the
transactions contemplated by this Agreement.
5.4. REGULATORY FILINGS. The parties hereto shall prepare and give or
make any necessary notices or filings under any other Federal, state or foreign
laws, rules and regulations to effectuate this Agreement and to consummate the
transactions contemplated hereby in accordance with the terms hereof.
5.5. NO SHOPPING.
(a) Actions Prohibited. Until such time, if any, as this Agreement
is terminated pursuant to Article 11, neither Seller nor Whittaker shall
directly or indirectly, through any director, officer, agent, financial adviser
or otherwise, solicit, initiate or encourage submission of proposals or offers
from any person relating to any acquisition or purchase of all or a substantial
portion of the Assets or the Business in any form or any equity interest in the
Seller to the extent it would impair the closing of the transactions
contemplated hereunder. Except in connection with the proper discharge, with the
advice of counsel, by the directors of Seller or Whittaker of their fiduciary
duties under applicable law, neither Seller nor Whittaker shall participate in
any negotiations regarding, or furnish to any other person any information with
respect to, or otherwise cooperate in any way with, or assist or participate in,
facilitate or encourage, any effort or attempt by any other person to do or seek
any of the foregoing. Except in connection with the proper discharge, with the
advice of counsel, by the directors of Seller or Whittaker of their fiduciary
duties under applicable law, each of Seller and Whittaker shall use its best
efforts to cause all materials previously furnished to any third party, that
relate to any proposed sale of all or a substantial portion of the Assets or the
Business in any form or any equity interest in the Seller, to be promptly
returned to Seller or Whittaker, to the extent that Whittaker or Seller have the
right to require such materials to be returned, and shall cease any negotiations
conducted in connection therewith or otherwise conducted with any such parties.
Seller shall promptly notify Buyer if any such proposal or offer, or any inquiry
or contract with any person with respect thereto, is made and shall provide
Buyer with a copy of any written proposal or offer.
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(b) Damages to Buyer for Violation. Seller acknowledges that Buyer:
(i) has spent, and will be required to spend, substantial time
and effort in examining the business, properties, affairs, financial
condition and prospects of the Business;
(ii) has incurred, and will continue to incur, substantial fees
and expenses in connection with such examination, the preparation of
this Agreement and the accomplishment of the transactions contemplated
hereunder; and
(iii) will be unable to evaluate and, possibly, make investments
in or acquire other entities, as an alternative to the Assets and the
Business, due to the limited number of personnel available for the
aforesaid purpose and the constraints of time.
Therefore, to induce Buyer to enter into this Agreement, if Seller
directly or indirectly, through any director, officer, agent, financial adviser
or otherwise, solicits, initiates or encourages submission of proposals or
offers from any person relating to any acquisition or purchase of all or a
portion of the Assets or the Business in any form or any equity interest in the
Seller, to the extent it would prevent the closing of the transactions
contemplated hereunder, or if Seller participates in any negotiations regarding,
or furnishes to any other person any information with respect to, or otherwise
cooperates in any way with, or assists or participates in, facilitates or
encourages, any effort or attempt by any other person to do or seek any of the
foregoing, then Buyer shall be entitled to receive, and Seller shall promptly
pay to Buyer on demand, all of the documented expenses of the Buyer reasonably
incurred in connection with the transactions contemplated under this Agreement,
including but not limited to reasonable fees and disbursements of the Buyer's
counsel, accountants, financial advisors and other consultants or agents. The
obligations to pay such expenses shall survive any termination of this
Agreement.
The foregoing amounts shall be payable to Buyer notwithstanding that
any action taken by the directors of Seller or Whittaker which may give rise to
the obligation to pay may have been in accordance with the fiduciary duties of
the directors. The parties acknowledge that the amount to be paid hereunder is
to compensate Buyer for its time, efforts and expenses in connection with this
transaction and is not a penalty.
5.6. PUBLIC ANNOUNCEMENTS. The parties will cooperate in the issuance
of any press releases or otherwise in the making of any public statements with
respect to the transactions contemplated hereby. The parties agree that prior to
the Closing Date, except as otherwise required by law, any and all public
announcements or other public communications concerning this Agreement or the
transactions contemplated hereby shall be subject to the approval of all parties
hereto, which approval shall not be unreasonably withheld; provided, however,
that any party may make any public disclosure it believes in good faith is
required by law or regulation, including, without limitation, any disclosures
made necessary by the status of any Affiliate of Seller or Buyer as a public
company (in which case the disclosing party will advise the other party prior to
making the disclosure) and shall, insofar as may be practicable, reflect in such
disclosure substantially all reasonable comments of the other parties.
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5.7. REASONABLE EFFORTS TO SATISFY CONDITIONS. Seller and Whittaker
shall each use all reasonable efforts to cause the conditions to the obligations
of Buyer and Superior contained in Sections 6.1 and 6.2 hereof to be satisfied
to the extent that the satisfaction of such conditions is in the control of
Seller or Whittaker, and Buyer and Superior shall each use all reasonable
efforts to cause the conditions to the obligations of Seller and Whittaker
contained in Sections 6.1 and 6.3 hereof to be satisfied to the extent that the
satisfaction of such conditions is in the control of Buyer or Superior;
provided, however, that the foregoing shall not constitute a limitation upon the
covenants and obligations of the parties hereto otherwise expressly set forth in
this Agreement.
6. CONDITIONS TO CLOSING
6.1. CONDITIONS TO EACH PARTY'S OBLIGATION TO CONSUMMATE THE
TRANSACTIONS. The respective obligations of each party hereto to consummate the
transactions contemplated hereunder are subject to the satisfaction or, where
permissible under applicable law, waiver, on or prior to the Closing Date, of
the following conditions:
(a) Approval of Seller's Shareholder. If, and to the extent required
by the California Corporation Code or the Articles of Incorporation, as amended,
or the Bylaws, as amended, of Seller, this Agreement and the transactions
contemplated hereunder shall have been approved by the shareholder of Seller.
(b) Regulatory Filings. All applicable waiting periods with respect
to any regulatory filings made pursuant to Section 5.4 hereof shall have expired
or been terminated.
(c) No Change in Law, Etc. No statute, rule, regulation, executive
order, decree, injunction or restraining order shall have been enacted, entered,
promulgated or enforced by any court of competent jurisdiction or governmental
authority which prohibits the consummation of the transactions contemplated
hereunder or which would make such consummation illegal.
6.2. ADDITIONAL CONDITIONS TO OBLIGATION OF BUYER AND SUPERIOR TO
CONSUMMATE THE TRANSACTIONS. The obligation of Buyer and Superior to consummate
the transactions contemplated hereunder is also subject to the satisfaction or
waiver by Buyer or Superior, on or prior to the Closing Date, of the following
conditions:
(a) Representations and Warranties; Performance of Obligations of
Seller and Whittaker.
(i) The representations and warranties of Seller and Whittaker
set forth in Article 3 hereof and in all agreements, documents and
instruments executed and delivered pursuant hereto or in connection
with the closing of the transactions contemplated hereunder shall be
true and correct in all material respects on the Closing Date as
though made on and as of the Closing Date, and Seller and Whittaker
shall have provided updated information for all Schedules required to
be furnished by either hereunder and that provide information as of
the Closing Date so that such Schedules are true and correct as of the
Closing Date.
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(ii) Each of Seller and Whittaker shall have performed in all
material respects the agreements, covenants and obligations necessary
to be performed by it prior to the Closing Date.
(b) Consents. All consents required for Closing specified on Schedule
3.3 shall have been obtained.
(c) Opinion of Counsel to Seller. On the closing Date, Seller and
Whittaker shall have caused to be delivered to Buyer and Superior an opinion of
counsel in form and substance reasonably satisfactory to Buyer and Superior,
dated the Closing Date, substantially in the form of Exhibit 6.2(c) hereto.
(d) Deliveries. Seller and Whittaker shall have delivered to Buyer and
Superior the documents and instruments specified in Section 2.4(b).
(e) INTENTIONALLY OMITTED
(f) Legal Proceedings. There shall not be pending or threatened (A)
any effective injunction or restraining order prohibiting the transactions
contemplated by this Agreement, (B) any legal proceeding seeking such an
injunction or order or seeking damages from Buyer in connection with those
transactions, or (C) any legal proceeding which has or will have may have a
Material Adverse Effect.
(g) No Change. Since the date of the Current Financial Statements, no
change in the Business or the financial condition of the Business, or any
material loss or casualty to the Assets, shall have occurred which has had or
will have a Material Adverse Effect.
(h) INTENTIONALLY OMITTED
(i) Escrow Agreement. Seller, Whittaker and the Escrow Agent shall
have executed and delivered the Escrow Agreement.
(j) Employment Agreements and Releases. Each of Andrew Rushmere and
Cordy L. Strawser shall have entered into employment or contracting arrangements
satisfactory to Buyer. With respect to all non-competition and non-disclosure
covenants or agreements in favor of Seller and applicable to Employees who will
be employed by Buyer, Seller shall have (i) executed and delivered written
releases releasing all such Employees from the provisions thereof (except for
the provisions thereof preventing competition with Seller or Whittaker in fields
or lines of business unrelated to the Business) or (ii) at Buyer's request,
assigned to Buyer all of such obligations which are assignable.
(k) Actions and Proceedings. All actions, proceedings, instruments and
documents required to carry out the transactions contemplated hereunder shall
have been reasonably satisfactory to counsel to Buyer and Superior, and Seller
and Whittaker shall have delivered such additional certificates and other
documents as Buyer or Superior shall have reasonably requested to consummate
the transactions contemplated hereunder.
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6.3. ADDITIONAL CONDITIONS TO OBLIGATIONS OF SELLER AND WHITTAKER TO
CONSUMMATE THE TRANSACTIONS. The obligations of Seller and Whittaker to
consummate the transactions contemplated hereunder are also subject to the
satisfaction or waiver by Seller or Whittaker, on or prior to the Closing Date,
of the following conditions:
(a) Representations and Warranties. The representations and
warranties of Superior and Buyer set forth in Article 4 and in all agreements,
documents and instruments executed and delivered pursuant hereto or in
connection with the closing of the transactions contemplated hereunder shall be
true and correct in all material respects on the Closing Date as though made on
and as of the Closing Date and Buyer and Superior shall have provided updated
information for all Schedules required to be furnished by either hereunder so
that such Schedules are true and correct as of the Closing Date.
(b) Performance of Obligations of Buyer and Superior. Each of Buyer
and Superior shall have performed in all material respects the agreements,
covenants and obligations necessary to be performed by it prior to the Closing
Date.
(c) Opinion of Counsel to Buyer. On the Closing Date, Buyer and
Superior shall have caused to be delivered to Seller and Whittaker an opinion of
counsel in form and substance reasonably satisfactory to Seller and Whittaker,
dated the Closing Date, substantially in the form of Exhibit 6.3(c) hereto.
(d) Deliveries. Buyer and Superior shall have delivered to Seller
and Whittaker the consideration and the other documents and instruments
specified in Section 2.4(c).
(e) Escrow Agreement. Buyer, Superior and the Escrow Agent shall
have executed and delivered the Escrow Agreement and Buyer shall have delivered
to the Escrow Agent the Escrow Amount.
(f) Legal Proceedings. There shall not be pending or threatened (A)
any effective injunction or restraining order prohibiting the transactions
contemplated by this Agreement or (B) any legal proceeding seeking such an
injunction or order or seeking damages from Seller in connection with those
transactions.
(g) Employment Agreements. Existing employment agreements between
Seller (or its predecessor in interest) and any of the Employees shall have been
terminated by mutual written consent of Seller and each such Employee.
(h) Actions and Proceedings. All actions, proceedings, instruments
and documents required to carry out the transactions contemplated hereunder
shall have been reasonably satisfactory to counsel to Seller and Whittaker, and
Buyer and Superior shall have delivered such additional certificates and other
documents as Seller or Whittaker shall have reasonably requested to consummate
the transactions contemplated hereunder.
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7. POST-CLOSING AGREEMENTS
7.1. PROPRIETARY INFORMATION.
(a) Obligation of Seller and Whittaker. Each of Seller and Whittaker
agrees that following the Closing Date it shall hold in confidence, and use all
reasonable efforts (at least equal to the efforts used to protect Seller's own
confidential or proprietary information) to have all officers, shareholders,
directors and personnel hold in confidence, (a) all knowledge and information of
a secret or confidential nature with respect to the Business and (b) all
financial information regarding Buyer provided in connection herewith and shall
not disclose, publish or make use of the same without the consent of Buyer,
except to the extent that (i) such information shall have become public
knowledge other than by breach of this Agreement by Seller, (ii) to the extent
the same is financial information of Buyer or Superior, such information is
available to Seller or Whittaker from a person other than persons who have
agreed not to disclose, publish or make use of such information or (iii) Seller
or Whittaker is required to disclose such information to comply with applicable
law (provided that prior to any such disclosure Seller shall consult with Buyer
in an effort to minimize any harm to the competitive position of Buyer and/or
the Business arising from such disclosure).
(b) Obligation of Buyer and Superior. Each of Buyer and Superior
agrees that following the Closing Date it shall hold in confidence all
information regarding Seller or Whittaker other than information regarding the
Business or the Assets, and shall not disclose, publish or make use of the same
without the consent of Seller, except to the extent that (i) such information
shall have become public knowledge other than by breach of this Agreement by
Buyer, or by any other persons who have agreed not to disclose, publish or make
use of such information, (ii) to the extent the same is financial information of
Seller or Whittaker, such information is available to Buyer or Superior from a
person other than persons who have agreed not to disclose, publish or make use
of such information or (iii) Buyer or Superior is required to disclose such
information to comply with applicable law (provided that prior to any such
disclosure Buyer shall consult with Seller in an effort to minimize any harm to
the competitive position of Seller arising from such disclosure).
(c) Enforcement. Each of the parties hereto agrees that the remedy
at law for any breach of this Section 7.1 may be inadequate and that upon any
breach the party or parties to whom any obligation of confidentiality is owed
under this Section shall be entitled to seek injunctive relief in addition to
any other remedy it may have.
7.2. NON-COMPETITION AGREEMENT.
(a) Obligation of Seller and Whittaker. For a period of three years
after the Closing Date, each of Seller and Whittaker agrees that it will not,
and will use its best efforts to cause its corporate Affiliates not to, directly
or indirectly, without the prior written consent of the Buyer, engage in any
Competitive Business or recruit or solicit any employee or consultant of the
Business or of the Buyer to discontinue such employment or engagement, seek to
employ or retain any such employee or consultant or cause any business, person,
firm or corporation to seek or solicit the employment or retention of any such
employee or consultant (except in each instance for the engagement of a
consultant as an independent contractor under circumstances which would not
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result in competitive harm or disadvantage to the Business and/or the Buyer).
Nothing contained in this Section 7.2(a) shall prohibit Seller, Whittaker or
their Affiliates from owning, in the aggregate, up to 5% of the issued and
outstanding voting stock of a corporation which may be engaged in any
Competitive Business and whose shares are listed for trading on a national or
regional stock exchange or traded on the over-the-counter market. Nothing
contained in this Section 7.2(a) shall prohibit or restrict Seller or its
Affiliates from (i) discharging warranty or similar obligations or liabilities
relating to services performed or products sold prior to the Closing Date or
obligations under licenses not included in the Contracts (including but not
limited to the license agreement among Whittaker, Whittaker Communications, Inc.
and Xyplex, Inc.) or (ii) enforcing their rights under contracts, leases,
licenses, purchase orders, commitments or similar items, which rights have not
been assigned to Buyer.
(b) Reasonableness. The parties hereto agree that the duration and
geographic scope of, and the activities restrained by, the non-competition
provisions set forth in this Section 7.2 are reasonable. If any court determines
that the provisions' duration, geographic scope, activities restrained or any
combination thereof are unreasonable and that the provisions for that reason or
to that extent are unenforceable, the parties agree that the provision shall
remain in full force and effect for the greatest time period, in the greatest
geographic area and with respect to the broadest ranges or types of activity
that would not render it unenforceable.
(c) Enforcement. Seller agrees that damages are an inadequate remedy
for any breach of the provisions of Section 7.2(a) and that Buyer, whether or
not it is pursuing any potential remedies at law, shall be entitled to equitable
relief in the form of preliminary and permanent injunctions without bond or
other security upon any actual or threatened breach of this non-competition
provision. If Seller shall violate Section 7.2(a), the duration of the
prohibitions contained in Section 7.2(a) automatically shall be extended for a
period equal to the period during which Seller shall have been in violation of
Section 7.2(a). The covenants contained in Section 7.2(a) are deemed to be
material and Buyer is entering into this Agreement relying on such covenants.
7.3. SHARING OF DATA. Seller and Whittaker each shall have the right,
for a period of four years following the Closing Date (or, with respect to tax
matters, such longer period, not exceeding the expiration of limitations periods
with respect thereto, as shall be reasonably necessary), to have reasonable
access to such books, records and accounts, including financial and tax
information, correspondence, production records, employment records and other
similar information as are transferred to Buyer pursuant to the terms of this
Agreement for the limited purposes of concluding its involvement in the Business
prior to the Closing Date and for complying with its obligations under
applicable securities, tax, environmental, employment or other laws and
regulations. Seller and Whittaker each shall also have the right, for a period
of eighteen months following the Closing Date, to have reasonable access to such
books and records of Buyer as are reasonably necessary for the limited purpose
of enabling Seller or Whittaker to evaluate the notice given by Buyer under the
provisions contemplated by the Escrow Agreement by verifying the collection or
non-collection of Accounts Receivable. Buyer shall have the right, for a period
of four years following the Closing Date, to have reasonable access to those
books, records and accounts, including financial and tax information,
correspondence, employment records and other
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records which are retained by Seller pursuant to the terms of this Agreement to
the extent that any of the foregoing relates to the Business transferred to
Buyer hereunder or is otherwise needed by Buyer in order to comply with its
obligations under applicable securities, tax, environmental, employment or other
laws and regulations.
7.4. COLLECTION OF ACCOUNTS RECEIVABLE. Buyer agrees that it shall use
its reasonable efforts (at least equal to the customary efforts of Buyer in
collecting its own accounts receivable) to collect the accounts receivable
included among the Assets prior to asserting any claim against the Escrow
Account with respect to uncollected Accounts Receivable as contemplated in the
Escrow Agreement. Nothing in this Section 7.4 shall impose upon Buyer any
obligation to retain counsel or commence litigation or other legal proceedings
as a condition to asserting any claim for indemnification.
7.5. USE OF OFFICE SPACE.
(a) Simi Valley.
(i) The parties acknowledge that Seller currently occupies the
Leased Premises located in Simi Valley, California as a sublessee of
Whittaker. The Buyer intends to utilize other premises for the conduct
of the Business conducted at such location but the parties anticipate
that a transition period will be necessary while Buyer investigates
the availability of other premises. For a period of ninety days
following the Closing Date, Buyer shall be entitled to occupy and use,
in its conduct of the Business, without charge or cost, the Leased
Premises located in Simi Valley (or other premises located in the
building in which the Leased Premises are located, under the
conditions set forth in subsection (ii) below). Following the
expiration of such ninety day period, Buyer shall be entitled, for an
additional period of three months, to continue to occupy and use such
premises in its conduct of the Business at a cost equal to the direct
out-of-pocket cost to Whittaker for such space of $.51 per square foot
per month, without markup or additional charge.
(ii) Seller may at its option request that Buyer vacate the
Leased Premises and occupy other premises within the same building for
the term specified in subsection (i) above, provided that (A) Seller
makes available to Buyer substitute premises within such building
containing an equivalent number of net usable square feet as the
Leased Premises, (B) Seller or Whittaker pays all of Buyer's
out-of-pocket moving expenses, plus the lost productivity suffered by
Buyer as a result of any move calculated on the basis of the number of
billable hours lost multiplied by the applicable billing rates for
such personnel; provided that the obligation of Seller and/or
Whittaker to reimburse Buyer for lost productivity shall not exceed
(1) $72,000, if Buyer determines that the simulation center located at
the Leased Premises need not be moved from its existing location, or
(2) $92,000, if Buyer determines that the simulation center should be
moved from its existing location. Buyer shall determine whether the
simulation center should be moved based on its evaluation in the
exercise of its reasonable business judgment as to whether, following
any move, the simulation center will be secure from use by others and
will afford Buyer's personnel unrestricted access thereto during
normal
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business hours. If Buyer determines that the simulation center should
be moved, Seller and Buyer will cooperate in determining a new location for
the simulation center.
(b) St. Louis. The parties further acknowledge that Seller currently
occupies additional leased premises located in St. Louis, Missouri. The Buyer
intends to utilize other premises for the conduct of the Business conducted at
such location but the parties further anticipate that a transition period will
be necessary while Buyer investigates the availability of other premises. For a
period of up to six months following the Closing Date, Buyer shall be entitled
to occupy and use, in its conduct of the Business and without violating the
terms of Seller's lease for the premises, the leased premises located in St.
Louis and shall pay to Seller on a pass-through basis monthly rent in the amount
of $2,105, representing the rent payable by Seller under its lease for such
premises.
7.6. FINANCIAL INFORMATION. Seller and Whittaker agree to assist Buyer
and Superior in developing financial and other information that may be necessary
for the presentation by either Buyer or Superior of historical and pro forma
financial information which it may be required to file or prepare, as a result
of the consummation of the transactions contemplated hereunder, under the
Securities Exchange Act of 1934 and applicable regulations thereunder. Buyer and
Superior will engage Superior's independent public accountants, Grant Thornton
LLP, to perform necessary audit services in connection with the development of
such financial information. Buyer and Superior will use their reasonable efforts
to negotiate a fixed fee arrangement with Grant Thornton LLP for the performance
of such audit services. Seller and Whittaker, on the one hand and Buyer and
Superior, on the other, shall each pay one-half of the fees and expenses of
Grant Thornton LLP payable in connection with its performance of such services.
7.7. COMPUTER NETWORK. The parties acknowledge that Seller's employees
are currently installing a separate computer network for the corporate office of
Whittaker (the "Corporate Network") and that Seller's employees currently
maintain a computer network for the corporate office and other operating units
of Whittaker (the "Company Network"). Buyer agrees to use its reasonable efforts
to (a) complete the installation of the Corporate Network following the Closing
at no cost to Whittaker or its Affiliates and (b) maintain the Company Network
for a period of 30 days after the Closing Date in a manner comparable to the
manner in which Seller currently maintains the Company Network at no cost to
Whittaker or its Affiliates (but not requiring more than 32 man-hours of work
for such maintenance). In addition, as long as Buyer maintains the Business in
the building located at 1785 Voyager Avenue, Simi Valley, California, Buyer will
forward all electronic mail that it receives for employees of Whittaker or any
of its Affiliates to Whittaker or such Affiliate.
7.8. USE OF NAME. Seller and Whittaker acknowledge and agree that from
and after the Closing, Buyer may use the name "Aviant" and "Aviant Information"
in connection with Buyer's performance of the Assumed Liabilities or as
reasonable in connection with the use of the Assets in the operation of the
Business, and further agree that after the Closing, neither Whittaker nor Seller
will use such name other than as necessary in connection with the winding up of
Seller's business
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8. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1. REPRESENTATIONS AND WARRANTIES.
(a) The representations and warranties of Seller and Whittaker shall
be deemed to be material to Buyer and Superior and to have been relied upon by
Buyer and Superior notwithstanding any investigation heretofore or hereafter
made or omitted by each (except for information of which Buyer or Superior is
actually aware which indicates that any representation and warranty is untrue)
and shall continue in full force and effect through the second anniversary of
the Closing Date, at which time they shall terminate except (i) as to claims
which are asserted by third parties prior to such date and notice of which shall
have been given by the Buyer or Superior to Seller or Whittaker prior to such
date and (ii) the representations and warranties set forth in Section 3.25,
which shall continue in full force and effect until the 60th day following the
expiration of the applicable statute of limitation (giving effect to any
waivers, mitigations or extension thereof).
(b) The representations and warranties of Buyer and Superior shall
be deemed to be material to Seller and Whittaker and to have been relied upon by
Seller and Whittaker notwithstanding any investigation heretofore or hereafter
made or omitted by it (except for information of which Seller or Whittaker is
actually aware which indicates that any representation and warranty is untrue)
and shall continue in full force and effect through the second anniversary of
the Closing Date, at which time they shall terminate except as to claims which
are asserted by third parties prior to such date and notice of which shall have
been given by Seller or Whittaker to Buyer or Superior prior to such date
(c) Notwithstanding the foregoing, (i) any cause of action based on
fraud, fraudulent misrepresentation or fraudulent breach of warranty may be
brought at any time until the expiration of the relevant statute of limitations,
and (ii) any representation or warranty in respect of which indemnity may be
sought shall survive the time at which it would otherwise terminate if notice of
the incorrectness or breach shall have been given to the party against whom such
indemnity may be sought prior to such time.
8.2. SURVIVAL OF COVENANTS. All covenants made in this Agreement which
by their terms are to be performed in whole or in part after the Closing shall
survive the Closing until they are performed.
9. INDEMNIFICATION AND REIMBURSEMENT
9.1. INDEMNIFICATION BY SELLER AND WHITTAKER.
(a) Seller and Whittaker jointly and severally agree to indemnify,
defend and hold harmless Buyer, Superior and any parent, subsidiary or Affiliate
thereof and all directors, officers, employees, agents and consultants of each
of the foregoing from and against any and all Warranty Expenses, and from and
against any and all Damages suffered, incurred or imposed upon such party with
respect to any claim resulting from or relating to any of the following:
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(i) INTENTIONALLY OMITTED
(ii) failure by Seller or Whittaker to pay and perform promptly
when due all of its obligations, liabilities and debts related to the
Business (other than the Assumed Liabilities);
(iii) any breach or default prior to the Closing Date by Seller
or Whittaker under any of the assumed Contracts;
(iv) failure by Seller to comply with any bulk sales or similar
laws applicable to the transactions contemplated hereby;
(v) accounts receivable assigned to Buyer at closing which
remain uncollected six months after the Closing Date and for which
Buyer has not recovered the full amount under the provisions of the
Escrow Agreement; provided, however that in exchange for payment
therefor, Buyer shall reassign such accounts to Seller; and
(vi) any other liability (other than an Assumed Liability)
respecting the Business or any of the Assets which is attributable to
services performed, products sold, actions taken, or errors or
omissions made, by the Seller prior to the Closing Date (including
without limitation any liability pursuant to warranty claims made by
present or former customers of the Business relating to services
provided or goods sold prior to the Closing Date), whether or not the
premise upon which liability is asserted became manifest before
Closing or the liability was first asserted before Closing.
(b) Buyer and Superior each agrees that prior to settling with any
third party any individual warranty or errors and omission claim in
excess of $10,000 for which indemnity may be sought from Seller or
Whittaker hereunder, Buyer will give ten (10) days' written notice to
Seller and Whittaker of the existence and circumstances of such claim
and the amount or value proposed to be paid or given in settlement
thereof, and shall consult with Seller and Whittaker regarding any
objections of Seller or Whittaker to the terms or conditions of such
settlement. If either Seller or Whittaker object to the terms thereof,
then it shall have the right to assume the defense of the claim in the
manner set forth in Section 9.3(b) and subject to the conditions set
forth therein.
(c) The parties acknowledge that Buyer shall be entitled to invoke
the provisions of the Escrow Agreement with respect to indemnity
claims for items covered thereby but that the provisions of the Escrow
Agreement shall not be deemed exclusive.
9.2. INDEMNIFICATION BY BUYER AND SUPERIOR.
(a) Buyer and Superior jointly and severally shall indemnify,
reimburse, and hold harmless Seller, Whittaker and any parent, subsidiary or
Affiliate thereof and all directors, officers, employees, agents and consultants
of each of the foregoing from and against any and all Damages suffered,
incurred, or sustained by Seller, with respect to any claim resulting from or
relating to any of the following:
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(i) any misrepresentation, breach of warranty, or nonfulfillment
of any agreement or covenant on the part of Buyer or Superior under
this Agreement or other agreement, document, or instrument delivered
pursuant to this Agreement or in connection with the transactions
contemplated hereby and referred to herein or in the Schedules hereto;
and
(ii) the operation of the Business after the Closing (other than
those arising out of contracts, commitments, or agreements of Seller
not assumed by Buyer) including, but not limited to, any failure by
Buyer to pay and perform promptly when due any of the Assumed
Liabilities, any breach or default after the Closing Date by Buyer
under any of the Contracts, Permits or Intellectual Property and any
other liability respecting the Business or any of the Assets that is
attributable to services performed, products sold, actions taken or
errors or omissions made by Buyer after the Closing Date.
9.3. NOTICE AND DEFENSE OF CLAIMS.
(a) Except with respect to claims for which Buyer seeks recovery
under the Escrow Agreement and not the provisions of this Article 9 (which shall
be governed by the terms of the Escrow Agreement), an Indemnified Party shall
give prompt written notice in accordance with Section 13.1 to all Indemnifying
Parties of any claim or event known to it for which the Indemnified Party
believes it is entitled to indemnification pursuant to this Article 9, stating
the nature and basis of said claims or events and the amounts thereof, to the
extent known. In the case of any claim, action or proceeding brought by a third
party (a "Claim"), a copy of any Claim, process or legal pleadings with respect
thereto shall be given promptly (and in any event within ten days) after any
such documents are received by the Indemnified Party.
(b) The Indemnifying Party shall, at its own expense, be entitled to
participate in and, to the extent that it shall wish, assume the defense of any
such Claim. If the Indemnifying Party elects to assume control of such defense
or settlement, it shall conduct such defense or settlement by retaining
experienced counsel reasonably satisfactory to the Indemnified Party and in such
event, except as provided below, no compromise or settlement shall be agreed or
made without the Indemnified Party's written consent, which shall not be
unreasonably withheld. In any case, the Indemnified Party shall have the right
to employ its own counsel and such counsel may participate in such action, but
the fees and expenses of such counsel shall be at the expense of the Indemnified
Party unless the Indemnified Party has reasonably concluded (based upon an
opinion of counsel a copy of which is provided to the Indemnifying Party) that
there may be a conflict of interest between the Indemnifying Parties and the
Indemnified Party in the conduct of the defense of such action.
Notwithstanding anything in this Section 9.3(b) to the contrary, if
with respect to a Claim, a settlement offer is made by the applicable third
party claimant which would release the Indemnified Party from further liability
solely upon payment of money damages and without requiring admission of any of
the claims asserted in the Claim, the Indemnifying Party notifies the
Indemnified Party in writing of the Indemnifying Party's willingness to accept
the settlement offer and pay the amount called for by such offer and the
Indemnified Party declines to accept such offer, then (i) the Indemnified Party
may continue to contest such Claim, free of any
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participation by the Indemnifying Party, and (ii) if the Indemnified Party
fails to resolve such claim (by settlement, a final non-appealable order or
otherwise) for an amount which is less than the amount of the rejected
settlement offer, the amount of any ultimate liability with respect to such
claim that the Indemnifying Party has an obligation to pay hereunder shall be
limited to the lesser of (A) the amount of the settlement offer that the
Indemnified Party declined to accept plus the actual reasonable out of pocket
fees and expenses incurred by the Indemnified Party relating to such Claim
through the date of its rejection of the settlement offer or (B) the aggregate
Damages of the Indemnified Party with respect to such Claim. If the
Indemnifying Party makes any payment on any Claim, the Indemnifying Party shall
be subrogated, to the extent of such payment, to all rights and remedies of the
Indemnified Party to any insurance benefits or other claims of the Indemnified
Party with respect to such Claim.
(c) If the Indemnifying Party does not elect to assume the defense
or settlement of a Claim as provided above, the Indemnified Party may engage
independent counsel selected by the Indemnified Party to assume the defense and
may contest, pay, settle or compromise any such claim on such terms and
conditions as the Indemnified Party may determine. The fees and disbursements of
such counsel shall constitute Damages for which indemnification shall be made
hereunder.
(d) Each Indemnified Party and each Indemnifying Party, as the case
may be, shall be kept fully informed of any Claim at all stages thereof whether
or not such party is represented by its own counsel.
9.4. COOPERATION. The parties hereto agree to render to each other such
assistance as they may reasonably require of each other and to cooperate in good
faith with each other in order to ensure the proper and adequate defense of any
claim, action, suit or proceeding brought by any third party. Where counsel has
been selected by the Indemnifying Parties or by an Indemnified Party, the
Indemnifying Parties or the Indemnified Party, as the case may be, shall be
entitled to rely upon the advice of such counsel in the conduct of the defense.
9.5. CONFIDENTIALITY. The parties agree to cooperate in such a manner
as to preserve in full the confidentiality of all confidential business records
and the attorney-client and work product privileges. In connection therewith,
each party agrees that (a) it will use all reasonable efforts, in any action,
suit or proceeding in which it has assumed or participated in the defense, to
avoid production of confidential business records (consistent with applicable
law and rules of procedure) and (b) all communications between any party hereto
and counsel responsible for or participating in the defense of any action, suit
or proceeding shall, to the extent possible, be made so as to preserve any
applicable attorney-client or work product privilege.
9.6. TIME PERIOD FOR ASSERTING INDEMNIFICATION. The indemnification
provided in this Article 9 shall be effective only as of the Closing Date. A
claim for indemnification pursuant to this Article must be asserted by delivery
of a notice as required in Section 9.3 within the following periods:
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(a) Except as provided in subsection (c) below, with respect to
claims based on a breach of any representation or warranty of any party
contained herein, within the survival period for the specific representation or
warranty as determined pursuant to Article 8.
(b) With respect to claims based upon the nonfulfillment of any
covenant contained in this Agreement or in any agreement or document to be
delivered pursuant to this Agreement, on or prior to the later of (i) the second
anniversary of the Closing Date, (ii) two years after the latest date on which
fulfillment of the covenant is required hereunder or (iii) the expiration of
such longer period, if any, as may be specified with respect to any covenant.
(c) Claims based on Sections 9.1(a)(ii), (iv) or (vi) or Section
9.2(a)(ii) may be made at any time.
(d) With respect to Warranty Expenses or any other claims, on or
prior to the second anniversary of the Closing Date.
9.7. EXCLUSIVE REMEDIES.
Except with respect to a violation of Section 5.5, 7.1 or 7.2 or as
contemplated by the Escrow Agreement:
(a) the remedies provided in Section 9.1 shall constitute the
exclusive remedy against Seller or Whittaker by any party indemnified under
Section 9.1 for any claim in connection with this Agreement, including any claim
of the type referred to in Section 9.1(a); and
(b) the remedies provided in Section 9.2 shall constitute the
exclusive remedy against Buyer or Superior by any party indemnified under
Section 9.2 for any claim in connection with this Agreement, including any claim
of the type referred to in Section 9.2(a).
9.8. LIMITATIONS. Notwithstanding the foregoing:
(a) In no event shall Seller or Whittaker be liable to any
Indemnified Party for Damages pursuant to this Article 9 which, when added to
all Damages paid by Seller and Whittaker in the aggregate exceeds the Purchase
Price.
(b) In no event shall Buyer or Superior be liable to any Indemnified
Party for Damages pursuant to this Article 9 which, when added to all Damages
paid by Buyer and Superior in the aggregate exceeds the Purchase Price.
(c) Any indemnification by Seller or Whittaker pursuant to Section
9.1 shall not be required unless and until the aggregate amount of all Damages
payable by Seller or Whittaker exceeds $50,000; provided, that once such Damages
exceed such amount, Seller and Whittaker shall indemnify the Buyer and Superior
for all Damages and not merely for Damages in excess of such amount.
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(d) Any indemnification by Buyer or Superior pursuant to Section 9.2
shall not be required unless and until the aggregate amount of all Damages
payable by Buyer or Superior exceeds $50,000; provided, that once such Damages
exceed such amount, Buyer and Superior shall indemnify Seller and Whittaker for
all Damages and not merely for Damages in excess of such amount.
10. TRANSFER AND SALES TAX
10.1. PAYMENT. Buyer shall be responsible for and shall pay all filing
and recording, sales, use and transfer taxes and fees, if any, upon the sale or
transfer of any of the Assets hereunder, but not any income, intangibles or
similar taxes payable by Seller or its shareholder by reason of the transactions
contemplated hereunder.
11. TERMINATION OF AGREEMENT
11.1. TERMINATION BY LAPSE OF TIME. This Agreement shall terminate if
the transactions contemplated hereby have not been consummated by 5:00 p.m.,
Detroit time, on September 30, 1998, unless (a) such date is extended by the
written consent of all of the parties hereto, in which case the Agreement shall
not terminate until 5:00 p.m., Detroit time, on the date as so extended; (b) any
regulatory approval required for the consummation of the transactions
contemplated hereby, for which application has been made and is pending, has
neither been granted nor refused, in which case the Closing Date shall be
extended until the fifth business day following the grant or refusal of all such
regulatory approvals (or the expiration of the applications therefor); or (c)
the transactions contemplated hereby have not been consummated due to a breach
by one party of its obligations hereunder and on such date such party shall
continue to be in breach of any of its obligations hereunder, in which case only
Seller (in the case of a breach by Buyer) or Buyer (in the case of a breach by
Seller) may terminate the Agreement on such date.
11.2. TERMINATION BY AGREEMENT OF THE PARTIES. This Agreement may be
terminated by the mutual written agreement of the parties hereto. In the event
of such termination by agreement, Buyer shall have no further obligation or
liability to Seller under this Agreement, and Seller shall have no further
obligation or liability to Buyer under this Agreement, except as provided in the
agreement to terminate.
11.3. TERMINATION BY REASON OF BREACH.
(a) By Seller or Whittaker. This Agreement may be terminated by
Seller if, as of the Closing Date, there shall have occurred (i) a material
breach of any of the representations or warranties of Buyer or Superior under
this Agreement or (ii) a material failure by Buyer or Superior to perform any
condition or obligation required to be performed by it under this Agreement, in
either case which has not been remedied as of the date of termination.
(b) By Buyer or Superior. This Agreement may be terminated by Buyer
or Superior if, as of the Closing Date, there shall have occurred (i) a material
breach of any of the representations or warranties of Seller or Whittaker under
this Agreement or (ii) a material failure
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by Seller or Whittaker to perform any condition or obligation required to be
performed by it under this Agreement, in either case which has not been remedied
as of the date of termination.
11.4. EFFECT OF TERMINATION. In the event that this Agreement shall be
terminated pursuant to Section 11.1, all further obligations of the parties
under this Agreement shall terminate without further liability of any party to
another; provided that a termination under Section 11.1(c) or under Section 11.3
by reason of a breach of an obligation hereunder shall not relieve any party of
any liability for such breach.
12. BROKERS
12.1. FOR SELLER AND WHITTAKER. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by
Seller and Whittaker without the intervention of any person or entity in any
manner which may give rise to any valid claim against Buyer or Superior for a
finder's fee, brokerage commission or other like payment. Each of Seller and
Whittaker agrees to indemnify and hold harmless Buyer and Superior against any
claims or liabilities asserted against it by any person acting or claiming to
act as a broker or finder on behalf of Seller or Whittaker.
12.2. FOR BUYER AND SUPERIOR. All negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by Buyer
and Superior without the intervention of any other person in any manner which
may give rise to any valid claim against Seller or Whittaker for a finder's fee,
brokerage commission or other like payment. Each of Buyer and Superior agrees to
indemnify and hold harmless Seller and Whittaker against any claims or
liabilities asserted against it by any person acting or claiming to act as a
broker or finder on behalf of Buyer or Superior.
13. MISCELLANEOUS
13.1. NOTICES. All notices and other communications pursuant to this
Agreement will be in writing and will be deemed to have been duly given or made
if (a) delivered personally, (b) sent by a nationally-recognized overnight air
courier service or mailed by registered or certified mail (postage prepaid,
return receipt requested), to the parties at the following addresses (or at such
other address for a party as may be specified by like change of address) or (c)
sent by electronic transmission, with confirmation of good transmission, to the
telecopier number specified below:
if to Buyer or Superior, to:
Superior Consultant Holdings Corporation
4000 Town Center
Suite 1100
Southfield, Michigan 48075
Attention: Richard P. Saslow, Vice President and General Counsel
Fax: (248) 386-8459
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with copies to:
Justin G. Klimko, Esq.
Butzel Long
150 W. Jefferson, Suite 900
Detroit, Michigan 48226-4430
Fax: (313) 225-7080
if to Seller or Whittaker, to:
c/o Whittaker Corporation.
1955 N. Surveyor Ave.
Simi Valley, California 93063
Attention: John K. Otto
Fax: (805) 584-4148
with copies to:
Sidley & Austin
555 West Fifth St., 40th Floor
Los Angeles, CA 90013-1010
Attention: Laura A. Loftin, Esq.
Fax: (213) 896-6600
13.2. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns. No party hereto may assign all or a portion of its rights and
obligations hereunder without the prior written consent of the other party,
except that Buyer may assign all or a portion of its rights and obligations
hereunder to an Affiliate of Buyer whether now existing or hereafter created
(but such assignment will not relieve Buyer of any obligation under this
Agreement) and Seller may after the Closing assign all or a portion of its
rights and obligations hereunder to an Affiliate of Seller whether now existing
or hereafter created (but such assignment will not relieve Seller of any
obligation under this Agreement). Any assignment in contravention of this
provision shall be void. Notwithstanding any possible inference herein to the
contrary, none of the parties hereto intends for this Agreement to create any
right or obligation except as between Seller and Whittaker, on the one hand, and
Buyer and Superior, on the other, and no other person shall be treated as a
third-party beneficiary hereof.
13.3. ENTIRE AGREEMENT; ATTACHMENTS.
(a) This Agreement (including the Exhibits and Schedules hereto),
together with the Escrow Agreement any other documents and agreements entered
into in connection herewith and referred to herein or in the Schedules hereto,
set forth the entire understanding among the parties relating to the subject
matter thereof, and supersede all prior agreements, arrangements,
understandings, negotiations or discussions.
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(b) If the provisions of any Schedule or Exhibit to this Agreement
are inconsistent with the provisions of this Agreement, the provisions of the
Agreement shall prevail. The Exhibits and Schedules attached hereto or to be
attached hereafter are hereby incorporated as integral parts of this Agreement.
13.4. AMENDMENT; WAIVER. This Agreement may be amended only by a
written instrument signed by the parties hereto. No provisions of this Agreement
may be waived except by an instrument in writing signed by the party granting
such waiver. No failure or delay by any party in exercising any right or remedy
hereunder shall operate as a waiver thereof, and a waiver of a particular right
or remedy on one occasion shall not be deemed a waiver of any other right or
remedy or a waiver on any subsequent occasion. The consummation of the Closing
shall not constitute a waiver of any covenant, representation or warranty
contained in this Agreement, unless the same is waived by an instrument in
writing signed by the party granting such waiver.
13.5. EXPENSES. Except as otherwise expressly provided herein, Buyer
and Superior, on the one hand, and Seller and Whittaker, on the other, shall
each pay its own expenses in connection with this Agreement and the
transactions contemplated hereby.
13.6. GOVERNING LAW. This agreement shall be governed by and construed
in accordance with the internal laws of the State of Michigan, without regard to
any choice of law principles which would require the application of the law of
any other jurisdiction.
13.7. ARTICLE, SECTION AND PARAGRAPH HEADINGS. The section headings of
this Agreement are for the convenience of the parties only and in no way alter,
modify, amend, limit, or restrict the contractual obligations of the parties.
13.8. SEVERABILITY. If any term or provision of this Agreement, which
is not in itself material to the transactions contemplated hereby, or the
application of any such term or provision to any circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement or the
application to other persons and circumstances shall not be affected thereby and
each term and provision hereof shall be enforced to the fullest extent permitted
by law.
13.9. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of and on the date first above written.
SUPERIOR CONSULTANT HOLDINGS CORPORATION,
a Delaware corporation
By: _________________________________________________
Its: _________________________________________________
ENTERPRISE CONSULTING GROUP, INC.,
a Michigan corporation (Buyer)
By: _________________________________________________
Its: _________________________________________________
AVIANT INFORMATION, INC.,
a California corporation (Seller)
By: _________________________________________________
Its: _________________________________________________
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WHITTAKER CORPORATION,
a Delaware corporation
By: _________________________________________________
Its: _________________________________________________
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EXHIBIT 10.2
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of August 20, 1998, among SUPERIOR CONSULTANT HOLDINGS
CORPORATION, a Delaware corporation ("Superior") ENTERPRISE CONSULTING GROUP,
INC., a Michigan corporation and wholly-owned subsidiary of Superior
("Enterprise"), WHITTAKER CORPORATION, a Delaware corporation ("Whittaker"),
AVIANT INFORMATION, INC., a California corporation and wholly-owned subsidiary
of Whittaker ("Aviant") and First of America Bank, a national banking
association (the "Escrow Agent").
PRELIMINARY STATEMENT
A. Superior, Enterprise, Whittaker and Aviant are parties to an Asset
Purchase Agreement dated of even date herewith (the "Asset Purchase Agreement"),
providing for, among other things, the acquisition by Enterprise of certain
assets of Aviant (the "Purchase").
B. The Asset Purchase Agreement provides that certain funds will be
placed in escrow as security for collection of certain accounts receivable being
purchased by Enterprise from Aviant and as security against any breaches of
representations, warranties or covenants made by Whittaker and Aviant in the
Asset Purchase Agreement.
C. This Escrow Agreement is intended to govern the retention and
disposition of the escrowed funds.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, Superior, Enterprise, Whittaker,
Aviant and the Escrow Agent covenant and agree as follows:
1. Definitions. Capitalized terms used herein, except to the extent
otherwise defined, have the meanings ascribed to them in the Asset Purchase
Agreement. This Section 1 is intended to provide a cross-reference for the ease
of the parties only and does not constitute or make the Escrow Agent a party to
the Asset Purchase Agreement nor subject to any of the provisions, terms or
conditions of the Asset Purchase Agreement.
2. Escrow Agent. As contemplated by the Asset Purchase Agreement, the
Escrow Agent is hereby designated and appointed by Superior, Enterprise,
Whittaker and Aviant, and the Escrow Agent hereby accepts such designation and
appointment and agrees to act, in accordance with and subject to the terms of
this Escrow Agreement, as Escrow Agent for the purpose of accepting from
Enterprise, holding, and paying out to Enterprise and/or Aviant, as the case may
be, the Escrow Amount.
<PAGE> 2
3. ESCROW AMOUNT.
(a) Deposit of Escrow Amount. At the Closing, Enterprise shall deliver
or cause to be delivered to the Escrow Agent an amount in cash equal to the sum
of (i) 10% of the Purchase Price plus (ii) 50% of the estimated value of the
Accounts Receivable which on the Closing Date have been outstanding for 90 days
or less (the "Under 90 Receivables") plus (iii) 100% of the estimated value of
the Accounts Receivable which on the Closing Date have been outstanding for more
than 90 days (the "Over 90 Receivables"). Following the Closing, Enterprise
shall deliver or cause to be delivered to Escrow Agent an amount equal to (x)
50% of any additional Under 90 Receivables determined to exist (under the
procedures contemplated in Section 2.8 of the Asset Purchase Agreement) as of
the Closing Date plus (y) 100% of any additional Over 90 Receivables determined
to exist as of the Closing Date under such procedures.. The amounts delivered to
the Escrow Agent pursuant to the preceding two sentences are hereafter referred
to as the "Escrow Amount." Funds constituting the Escrow Amount shall be
delivered under an account name which indicates that the funds are held in
escrow for the benefit of Superior, Enterprise, Whittaker and Aviant, and the
Escrow Agent shall acknowledge receipt thereof in escrow for the benefit of
Superior, Enterprise Whittaker and Aviant. Escrow Agent shall have no duty to
verify that it has received the correct amount of funds as described above.
Escrow Agent is hereby directed to deposit the funds received for the Escrow
Amount into the above-described account.
(b) Application of the Escrow Amount. The Escrow Amount shall be
applied by the Escrow Agent exclusively to the making of the payments provided
for herein.
4. RECOVERY OF UNCOLLECTED ACCOUNTS RECEIVABLE.
(a) Delivery of Collection Notices. No later than the 10th day of each
calendar month commencing with the first month following the month in which the
Closing occurs, Enterprise shall deliver to Whittaker, Aviant and the Escrow
Agent a notice (each a "Collections Notice") setting forth (i) the dollar value
of all Accounts Receivable collected by Enterprise during the immediately
preceding calendar month, (ii) the portion of such amount attributable to Under
90 Receivables and the portion attributable to Over 90 Receivables and (iii) a
calculation indicating 50% of the value of the Under 90 Receivables, and 100% of
the value of the Over 90 Receivables, which in each case have not been collected
as of the date of the Notice. The Escrow Agent, as soon as practicable and in
any event within three business days after receipt of such notice, shall
disburse to Aviant from the Escrow Amount (by wire transfer to an account
designated by Aviant) such amount as shall cause the remaining Escrow Amount to
thereafter equal the amount deposited pursuant to Section 3(a)(i), less amounts
theretofore disbursed for Warranty Expenses as contemplated in Section 5, plus
(i) 50% of the value of the Under 90 Receivables which have not been collected
as of the disbursement date and (ii) 100% of the Over 90 Receivables which have
not been collected as of the disbursement date, in each case based on the most
recent Collection Notice received by the Escrow Agent through such date. There
shall also be disbursed to Aviant at such time interest or earnings actually
earned on the funds disbursed in accordance with Section 7, less any unpaid fees
or expenses which the Escrow Agent may be entitled to deduct therefrom pursuant
to the terms of this Agreement.
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<PAGE> 3
(b) Delivery of Uncollected Receivables Notice. By the earlier of (i)
the date as of which Enterprise has collected all of the Accounts Receivable or
(ii) ten (10) days following the date which is six months after the Closing
Date, Enterprise shall deliver to Whittaker, Aviant and the Escrow Agent a
notice setting forth the dollar value of all Accounts Receivable which have not
been collected by Enterprise as of such date together with the reasonable
out-of-pocket costs of collection incurred by Buyer in collecting or attempting
to collect the Accounts Receivable (the "Uncollected Receivables Notice").
Enterprise shall deliver the Uncollected Receivables Notice even if the dollar
amount of such uncollected Accounts Receivable is $-0-.
(c) Disbursement to Enterprise. As soon as practicable and in any event
within three business days after receipt of the Uncollected Receivables Notice,
the Escrow Agent shall disburse to Enterprise from the Escrow Account the dollar
value of the uncollected Accounts Receivable (if any) and collection expenses
set forth in the Uncollected Receivables Notice, together with interest or
earnings actually earned on the funds disbursed in accordance with Section 7,
less any unpaid fees or expenses which the Escrow Agent may be entitled to
deduct therefrom pursuant to the terms of this Agreement. Such amount shall be
disbursed by wire transfer to an account designated by Enterprise.
(d) Disbursement to Aviant. As soon as practicable and in any event
within three business days after receipt of the Uncollected Receivables Notice,
the Escrow Agent shall disburse to Aviant from the Escrow Account an amount
equal to
(i) the sum of
(A) the amounts deposited pursuant to clauses (ii) and (iii)
of Section 3(a) plus
(B) any amounts delivered to the Escrow Agent by Enterprise
after Closing in respect of additional Accounts Receivable as
contemplated in clauses (x) and (y) of Section 3(a) above,
less
(ii) the sum of
(A) all amounts previously disbursed to Aviant pursuant to
Section 4(a) and
(B) the amount of the uncollected Accounts Receivable
identified in the Uncollected Receivables Notice,
together with interest or earnings actually earned on the funds
disbursed in accordance with Section 7, less any unpaid fees or expenses which
the Escrow Agent may be entitled to deduct therefrom pursuant to the terms of
this Agreement.
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<PAGE> 4
5. RECOVERY OF WARRANTY EXPENSES.
(a) Delivery of Notice. At any time prior to the first anniversary of
the Closing Date (or, as provided in Section 5(e) below, the second anniversary
of the Closing Date), Enterprise may submit to the Escrow Agent, Whittaker and
Aviant a written notice relating to Warranty Expenses which Enterprise has
incurred or has determined that it may incur and for which Enterprise is
entitled to be indemnified under the provisions of Article 9 of the Asset
Purchase Agreement (a "Warranty Expense Notice"). Each Warranty Expense Notice
shall set forth the representation, warranty or covenant contained in the Asset
Purchase Agreement which has been breached and which gives rise to the Warranty
Expense, the estimated amount of the Warranty Expense together with a detailed
calculation thereof, whether the Warranty Expense relates to litigation,
arbitration or other proceedings commenced by a third party and whether such
Warranty Expense has been incurred or not yet incurred. If the Warranty Expense
relates to such a third party claim, the copy of the Warranty Expense Notice
submitted to Whittaker and Aviant shall be accompanied by a copy of the summons
and complaint, demand for arbitration or other document setting forth the nature
of the third party claim. In the event the Warranty Expense has not yet been
incurred, the Warranty Expense Notice shall include a statement that such
Warranty Expense shall not be paid by the Escrow Agent until the conditions of
Section 6(g) have been satisfied.
(b) Dispute of Warranty Claim. In the event Whittaker or Aviant
disputes any claim for Warranty Expenses detailed in a Warranty Expense Notice,
Whittaker or Aviant shall notify Enterprise and the Escrow Agent in writing (a
"Disputed Warranty Expense Notice") within twenty (20) days after receipt of the
Warranty Expense Notice, setting forth a detailed description of the basis for
its dispute of the Warranty Expenses claimed.
(c) Disbursement to Enterprise. If Whittaker or Aviant does not deliver
a Disputed Warranty Expense Notice to Enterprise and Escrow Agent within twenty
(20) days after receipt of the Warranty Expense Notice, the Escrow Agent shall
promptly disburse to Enterprise from the Escrow Account the amount of Warranty
Expenses claimed, but not in excess of (i) the amount deposited into the Escrow
Account pursuant to clause (i) of Section 3(a) less (ii) any amounts previously
disbursed to Enterprise for Warranty Expenses under the provisions of this
Section 5(c), together with interest or earnings actually earned on the funds
disbursed in accordance with Section 7, less any unpaid fees or expenses which
the Escrow Agent may be entitled to deduct therefrom pursuant to the terms of
this Agreement.
(d) Disbursement to Aviant. On the first anniversary of the Closing
Date (or, as provided in Section 5(e) below, the second anniversary of the
Closing Date), the Escrow Agent shall disburse to Aviant from the Escrow Account
the funds then in the Escrow Account less the amount of all claims for Warranty
Expenses set forth in a Warranty Expense Notice which have been disputed by
Aviant and not resolved. There shall also be disbursed to Aviant interest or
earnings actually earned on the funds disbursed, in accordance with Section 7,
less any unpaid fees or expenses which the Escrow Agent may be entitled to
deduct therefrom pursuant to the terms of this Agreement.
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<PAGE> 5
(e) Extension of Escrow Term. Enterprise, Superior, Aviant and
Whittaker agree that in the event that, prior to the first anniversary of the
Closing Date, Whittaker has consummated, or has announced its intention to
engage in, a transaction involving the sale of all or substantially all of its
assets to a third party acquiror, then, upon delivery to the Escrow Agent no
later than 5:00 p.m. Detroit time on the day before the first anniversary of the
Closing Date of a written notice by Enterprise, Superior, Aviant or Whittaker
that such an event has occurred, amounts which would otherwise be disbursed by
Escrow Agent pursuant to Section 5(d) shall be held, under all of the terms and
conditions of this Agreement, until the second anniversary of the Closing Date,
and Enterprise shall be entitled to deliver a Warranty Expense Notice under
Section 5(a) relating to any Warranty Expenses which, prior to such time,
Enterprise has incurred or has determined that it may incur and for which
Enterprise is entitled to be indemnified under the provisions of Article 9 of
the Asset Purchase Agreement. All other provisions of this Agreement which have
not by their terms expired or been fully performed shall remain in full force
and effect during such extended period.
6. RESOLUTION OF DISPUTES.
(a) Escrow Agent to Retain Funds. If Whittaker or Aviant have delivered
a Disputed Warranty Expense Notice in accordance with Section 5(b) above, and if
Enterprise, Whittaker and Aviant are unable to agree regarding any claim for
Warranty Expenses made by Enterprise pursuant to Section 5 above, the Escrow
Agent shall continue to hold the amounts claimed, but not in excess of (i) the
amount deposited pursuant to Section 3(a)(i) less (ii) any amounts previously
disbursed to Enterprise for Warranty Expenses under the provisions of Section
5(c), plus interest or earnings actually earned thereon in accordance with
Section 7.
(b) Arbitration. Enterprise and Aviant shall use their best efforts to
resolve disputes regarding claims for Warranty Expenses. If they are unable to
resolve any dispute within fifteen (15) days following the delivery of
Whittaker's or Aviant's Disputed Warranty Expense Notice, the dispute shall be
submitted for arbitration in accordance with the commercial arbitration rules of
the American Arbitration Association except as specified herein. The arbitration
shall take place in Southfield, Michigan. Escrow Agent shall not be made a party
to the arbitration and shall have no obligation to insure that any of the
provisions of this Agreement relating to the conduct of the arbitration are
observed or followed. The arbitrator shall be chosen from among candidates
supplied by the American Arbitration Association who have experience in matters
relating to the acquisition and sale of business enterprises and business
assets.
(c) Scope of Arbitration. The arbitration shall be limited to issues
relating to the proper disposition of funds in the Escrow Account pursuant to
the terms of this Agreement and the Asset Purchase Agreement, and the arbitrator
shall have no authority to determine, decide or resolve any other disputes,
issues or disagreements arising with respect to the Asset Purchase Agreement or
the transactions contemplated thereunder.
(d) Conduct of Arbitration. The arbitrator shall substantially comply
with the Michigan rules of evidence; shall grant essential but limited
discovery; shall provide for the exchange of witness lists and exhibit copies;
and shall conduct a pretrial conference and consider dispositive
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motions. Each party shall have the right to request the arbitrator to
make findings of specific factual issues. The arbitrator shall decide all issues
and disputes in conformity with applicable law and shall have no authority to
alter the terms of this Agreement or the Asset Purchase Agreement. The
arbitrator shall not have authority to award special, consequential, exemplary
or punitive damages. The arbitrator shall complete its proceedings and render
its decision within forty (40) days after submission of the dispute to it,
unless both parties agree to an extension. Each party shall cooperate with the
arbitrator to comply with procedural time requirements and the failure of either
to do so shall entitle the arbitrator to extend the arbitration proceedings
accordingly and to impose sanctions on the party responsible for the delay,
payable to the other party.
(e) Decision and Award. The decision of the arbitrator shall be final
and binding upon the parties and a judgment by a court of competent jurisdiction
may be entered in accordance therewith. The award may be appealed by the parties
only upon such grounds as may exist under the Federal Arbitration Act, 9 U.S.C.
Section 1 et seq., and any such appeal shall be commenced within thirty days
after the arbitrator delivers his or her decision. If the arbitrator determines
that a party has failed to act in good faith or with a reasonable basis in
connection with the dispute, the arbitrator shall be entitled to award, against
the party so acting, the fees and expenses of the arbitration and the costs and
expenses incurred by the other party in connection with the arbitration,
including but not limited to reasonable attorneys' fees. In the absence of such
a finding, the fees and expenses of the arbitration shall be borne 50% by
Superior and Enterprise on the one hand and 50% by Whittaker and Aviant on the
other (except that each party shall be solely responsible for the fees and
expenses of its counsel and other professionals and experts retained by it).
(f) Delivery of Award to Escrow Agent. Upon receipt of an opinion of
counsel to Superior, Enterprise, Whittaker or Aviant, stating that such counsel
has received and reviewed the arbitrator's decision or any court order enforcing
it (a copy of which shall be attached), and that the arbitrator's decision or
court order constitutes a final, non-appealable decision or order (as
applicable), the Escrow Agent shall disburse to Enterprise from the Escrow
Account the amount of Warranty Expenses found owing by the arbitrator (as same
may be modified by the results of any appeal), up to a maximum of the amount
deposited pursuant to Section 3(a)(i) less amounts previously disbursed to
Enterprise for Warranty Expenses, and shall disburse to Aviant the principal
amount, if any, remaining in the Escrow Account, in each case together with
interest or earnings actually earned on the funds disbursed as set forth in
Section 7, less any unpaid fees or expenses which the Escrow Agent may be
entitled to deduct therefrom pursuant to the terms of this Agreement.
(g) Claims for Warranty Expenses Not Yet Incurred. Only claims for
Warranty Expenses actually incurred shall be paid (subject to resolution of any
dispute with respect thereto as provided herein) from the Escrow Amount. If, on
or before the first anniversary of the Closing Date, Enterprise has submitted a
Warranty Expense Notice for Warranty Expenses not yet incurred, then unless
Enterprise and Aviant otherwise jointly instruct the Escrow Agent, the amount
claimed in such Warranty Expense Notice shall be retained by the Escrow Agent
until such time as the amount of such Warranty Expenses actually incurred by
Enterprise becomes fully liquidated and known and such claim is settled in
accordance with the procedures set forth herein.
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7. TREATMENT OF EARNINGS. Interest or earnings actually earned on the
funds in the Escrow Account shall be credited to a separate interest
sub-account. As set forth in the foregoing Sections, such interest or earnings
shall be disbursed pro rata along with principal amounts of the Escrow Account,
so that parties receiving distributions of any portion of the principal amount
shall also receive interest or earnings actually earned on that portion of the
principal amount (subject in each instance to the right of the Escrow Agent to
deduct any unpaid fees or expenses which it may be entitled to deduct from such
earnings pursuant to the terms of this Agreement). The pro rata amounts of
interest or earnings distributed with respect to any principal amount disbursed
shall be determined by multiplying the amount contained in the interest
sub-account on the disbursement date by a fraction, the numerator of which is
the principal amount to be disbursed and the denominator is the total principal
amount in the Escrow Account on the disbursement date.
8. WITHHOLDING. Anything herein to the contrary notwithstanding, the
Escrow Agent shall be authorized to withhold taxes from payments made from the
Escrow Amount, to the extent required by law.
9. INVESTMENT BY ESCROW AGENT. The Escrow Agent shall, as directed by
Enterprise, invest the Escrow Amount in (i) obligations of, or fully guaranteed
by, the United States of America or any agency thereof, (ii) commercial paper
rated of the highest quality by Moody's Investors Services, Inc. or Standard &
Poor's, (iii) Certificates of Deposit (having a term of not more than 90 days)
issued by a commercial bank having at least $10 billion in assets or (iv) upon
the concurrence of Aviant, in units of a money market mutual fund, including
without limitation any offered by Escrow Agent or an affiliate of Escrow Agent,
after the party directing such investment has received a prospectus. Absent its
receipt of such investment directions from Enterprise, the Escrow Agent shall
invest the Escrow Amount, and any interest or earnings thereon, in one of the
instruments described in clauses (i), (ii) or (iii) above, as directed by
Aviant, or, in the absence of directions from Enterprise or Aviant, in the
Parkstone Treasury Money Market Fund Institutional Shares. Any interest or
earnings with respect to such investment of the Escrow Amount shall be paid as
set forth in this Agreement. If for any reason the Escrow Amount is inadequate
to pay the amounts that Aviant is entitled to hereunder, Enterprise shall be
liable for the payment of such additional amounts as are required.
10. CONCERNING THE ESCROW AGENT. In performing its duties under this
Escrow Agreement and notwithstanding anything to the contrary contained in this
Agreement, the Escrow Agent, including its officers, directors, employees and
agents:
(a) is authorized to act upon any statement, consent, agreement or
other instrument, not only as to its due execution, its validity and the
effectiveness of its provisions but also as to the truth and accuracy of any
information contained therein, which the Escrow Agent shall in good faith
believe to be genuine and to have been signed by a proper person or persons;
(b) shall have no responsibility to inquire into or determine the
genuineness, authenticity, or sufficiency of any securities, checks, or other
documents or instruments submitted to it in connection with its duties hereunder
and shall be under no duty to make any investigation or any inquiry as to any
statements contained or matters referred to in any such writing;
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(c) shall be entitled to deem the signatories of any documents or
instruments submitted to it hereunder as being those purported to be authorized
to sign such documents or instruments on behalf of the parties hereto and shall
be entitled to rely upon the genuineness of the signatures of such signatories
without inquiry and without requiring substantiating evidence of any kind.
(d) shall have no liability for any action or omission to act with
respect to its duties under this Escrow Agreement so long as it shall have acted
in good faith and without gross negligence;
(e) shall have no responsibility or liability for any diminution which
may result from any investments or reinvestments made in accordance with any
provision which may be contained herein and shall be entitled to sell or
liquidate any such investments at such time and in such amounts as it deems
necessary to pay out and disburse funds as provided in this Agreement;
(f) shall have no obligation to make any payments hereunder (i) except
from the Escrow Amount and any earnings thereon and (ii) until it has received
from the party entitled to such payment an IRS Form W-9;
(g) shall be entitled to refrain from taking any action contemplated by
this Agreement in the event it becomes aware of any disagreement between the
parties as to any facts or the happening of any event precedent to such action.
(h) shall have no obligation to report any earnings on the Escrow
Amount or to prepare any federal, state or local tax return in connection
therewith except to the extent the Escrow Agent is required by law to make any
such report or prepare any such return.
(i) Escrow Agent is not obligated to render any statements or notices
of non-performance hereunder to any party hereto but may in its discretion
inform any party hereto or its authorized representative of any matters
pertaining to this Agreement.
(j) Escrow Agent shall not be charged with knowledge of any fact,
including but not limited to performance or non-performance of any condition
hereunder, unless it has actually received written notice thereof from one of
the parties pursuant to Section 14 hereof, such notice clearly referring to this
Agreement. Unless it is specifically otherwise provided herein, Escrow Agent has
no duty to determine or inquire into the happening or occurrence of any event or
contingency or the performance or failure of performance of Enterprise or Aviant
hereunder, with the Escrow Agent's sole duty hereunder being to safeguard the
Escrow Amount and to disburse the same in accordance with this Agreement;
provided, however, that if Escrow Agent is called upon by the terms of this
Agreement to determine the occurrence of any event or contingency, Escrow Agent
may request from Enterprise or Aviant such additional evidence as Escrow Agent
in its sole discretion may deem necessary to determine any fact relating to the
occurrence of such event or contingency, and in connection therewith may make
inquiries of, and consult with, among others, Enterprise or Aviant at any time.
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(k) It is the intention of the parties hereto that Escrow Agent shall
never be required to use or advance its own funds or (except as expressly
provided in Section 11) otherwise incur personal financial liability in the
performance of any of its duties or the exercise of any of its rights and powers
hereunder.
(l) Escrow Agent may consult with legal counsel selected and retained
by it and shall be fully protected with respect to any action or inaction under
this Agreement taken or suffered in good faith by Escrow Agent in accordance
with and reliance upon the opinion of such counsel.
11. INDEMNIFICATION OF THE ESCROW AGENT. Each of Superior and
Enterprise on the one hand, and Whittaker and Aviant on the other, jointly and
severally covenant and agree to indemnify the Escrow Agent and its officers,
directors, employees and agents (collectively, the "Indemnitees" and
individually an "Indemnitee") and to hold each of them harmless against any
fees, loss, liability, expense, claims, damages or judgments (including
reasonable attorneys' fees and expenses) arising out of or in connection with
the performance of the Escrow Agent's duties hereunder, including the cost and
expenses of defending themselves against any such claim or liability in
connection therewith, except that the none of the foregoing shall be indemnified
against any such loss, liability or expense arising out of the Escrow Agent's or
their bad faith, gross negligence or willful misconduct in connection with the
performance of the Escrow Agent's obligations hereunder. Each of Superior and
Enterprise on the one hand, and Whittaker and Aviant on the other, shall be
liable for 50% of all amounts to which the indemnity set forth herein applies.
An Indemnitee seeking indemnification hereunder shall deliver notice of a claim
for indemnification to Superior, Enterprise, Whittaker and Aviant, together with
a copy of any written assertion of the claim against the Indemnitee or of the
summons or other legal process commencing any action against the Indemnitee,
promptly (and in any event within 10 business days) after the Indemnitee shall
have received any such written assertion of the claim or shall have been served
with the summons or other legal process, giving information as to the nature and
basis of the claim. The failure of an Indemnitee to deliver notice to Superior,
Enterprise, Whittaker and Aviant of any such claim shall relieve Superior,
Enterprise, Whittaker and Aviant from liability under this indemnity to the
extent of any prejudice in defending the action which results from the failure.
Superior, Enterprise, Whittaker and Aviant shall be entitled to assume the
defense of any suit brought against any Indemnitee to enforce any such claim.
The Indemnitee thereafter may continue to participate in the action, suit or
legal proceeding, but subsequent to the assumption by Superior, Enterprise,
Whittaker or Aviant of such defense, Superior, Enterprise, Whittaker and Aviant
shall not be obligated to indemnify the Indemnitee for legal fees and expenses
of the Indemnitee thereafter incurred (provided that Superior and Enterprise
and/or Whittaker and Aviant continue to defend such action in good faith until
concluded). No Indemnitee shall be under any obligation to institute or defend
any action, suit or legal proceeding in connection therewith, unless first
indemnified in accordance with the foregoing. The indemnification obligation set
forth herein shall survive the expiration or termination of this Agreement until
expiration of any applicable statute of limitations.
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12. FEES AND EXPENSES OF THE ESCROW AGENT.
(a) Escrow Agent shall be entitled to compensation for its services
hereunder in amounts as set forth on Schedule A to this Agreement and to
reimbursement of its reasonable out-of-pocket expenses and disbursements
including, but not by way of limitation, the fees and costs of attorneys or
agents which it may find necessary to engage in performance of its duties
hereunder, all to be paid 50% by Superior and Enterprise on the one hand and 50%
by Whittaker and Aviant on the other. The Escrow Agent shall be entitled to
recover fees and expenses that the Escrow Agent is entitled to be paid or
reimbursed hereunder and amounts for which the Escrow Agent or any other
Indemnified Party is entitled to indemnification under Section 11 hereof, and is
granted a lien on, amounts deposited in the Escrow Account and amounts actually
earned thereon, if such amounts have not been paid to the Escrow Agent within 30
days after the Escrow Agent has delivered a statement of such amounts to each of
the parties hereto other than the Escrow Agent. If Escrow Agent shall be
required to perform extraordinary services not contemplated herein, Escrow Agent
shall receive reasonable additional compensation therefor, such compensation to
be paid 50% by Superior and Enterprise on the one hand and 50% by Whittaker and
Aviant on the other. Escrow Agent shall not be required to institute or maintain
litigation unless indemnified to its satisfaction for its counsel fees, costs,
disbursements and all other costs, expenses and liabilities to which it may, in
its judgment, be subjected to in connection with such action.
(b) Superior and Enterprise hereby jointly and severally indemnify and
agree to hold harmless Whittaker and Aviant from and against any and all costs,
expenses, liabilities and obligations that Whittaker and/or Aviant may incur as
a result of (i) any failure by Superior and Enterprise to pay 50% of the Escrow
Agent's fees and expenses as provided in Section 12(a) or (ii) any act or
omission by Superior or Enterprise that results in the Escrow Agent or any other
Indemnified Party becoming entitled to indemnification under Section 11 hereof.
Whittaker and Aviant hereby jointly and severally indemnify and agree to hold
harmless Superior and Enterprise from and against any and all costs, expenses,
liabilities and obligations that Superior and/or Enterprise may incur as a
result of (i) any failure by Whittaker and Aviant to pay 50% of the Escrow
Agent's fees and expenses as provided in Section 12(a) or (ii) any act or
omission by Whittaker or Aviant that results in the Escrow Agent or any other
Indemnified Party becoming entitled to indemnification under Section 11 hereof.
For purposes of this subsection, the commencement by a party to this Agreement
of a lawsuit, arbitration or other proceeding shall not be deemed to be an act
resulting in the Escrow Agent or any other Indemnified Party becoming entitled
to indemnification hereunder if the party or parties commencing such lawsuit
prevail therein. In the event that the Escrow Agent or other Indemnified Party
is paid any amount under Section 11 and Superior and Enterprise, on the one
hand, and Whittaker and Aviant, on the other, dispute which of such parties is
required to indemnify the other under this subsection (b), such dispute shall be
settled by arbitration in accordance with Section 6. This subsection (b) sets
forth rights and obligations as between Superior and Enterprise, on the one
hand, and Whittaker and Aviant, on the other, and shall not be deemed to affect
the rights or obligations of the Escrow Agent as otherwise set forth in this
Agreement, nor shall the Escrow Agent have any obligation to determine whether
the provisions of this subsection (b) have been satisfied.
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13. RESIGNATION OR REMOVAL OF ESCROW AGENT.
(a) Escrow Agent may resign as such following the giving of thirty (30)
days prior written notice to Superior, Enterprise, Whittaker and Aviant.
Similarly, Escrow Agent may be removed and replaced following the giving of
thirty (30) days prior written notice to the Escrow Agent by Superior,
Enterprise, Whittaker and Aviant. Such resignation or removal shall take effect
thirty (30) days after the date of such notice (or as of such earlier date as
may be mutually agreeable); provided, however, that notwithstanding any such
resignation or removal of the Escrow Agent pursuant to this Section 13, Escrow
Agent shall continue to serve in its capacity as escrow agent until (i) a
successor escrow agent is appointed in accordance with the provisions of this
Section 13 and has accepted such appointment and (ii) Escrow Agent's fees, costs
and expenses have been paid and the Escrow Agent has delivered the balance of
the Escrow Amount then in its possession to the successor escrow agent.
(b) In the event that Superior, Enterprise, Whittaker and Aviant are
unable to agree upon a successor or shall have failed to appoint a successor
prior to the expiration of thirty (30) days following the date of the notice of
resignation or removal, the Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor Escrow Agent or for other
appropriate relief; and, any such resulting appointment shall be binding upon
all of the parties hereto.
(c) Upon acknowledgment by any successor Escrow Agent of the receipt of
the balance of the Escrow Amount, all duties, responsibilities, and obligations
of the predecessor Escrow Agent under this Agreement arising from and after the
date of such acknowledgment shall be terminated.
14. NOTICES. All requests, directions, notices and other communications
required or permitted to be made or given pursuant to this Agreement will be in
writing and will be deemed to have been duly given or made if (a) delivered
personally or (b) sent by a nationally-recognized overnight air courier service
or mailed by registered or certified mail (postage prepaid, return receipt
requested), to the parties at the following addresses (or at such other address
for a party as may be specified by like change of address):
If to Superior or Enterprise:
Enterprise Consulting Group, Inc.
4000 Town Center
Suite 1100
Southfield, Michigan 48075
Attention: Richard P. Saslow, Vice President and General Counsel
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If to Whittaker or Aviant:
Whittaker Corporation
1955 N. Surveyor Avenue
Simi Valley, California 93063
Attention: John K. Otto
If to the Escrow Agent:
First of America Bank, N.A.
1001 South Worth
Birmingham, Michigan 48009-6943
Attention: ________________________
Any party may by notice change the address to which notice or other
communications to it are to be delivered or mailed.
15. STATUS OF AGREEMENT. This Agreement sets forth the entire agreement
among the parties governing the creation, maintenance and disposition of the
escrow contemplated hereunder. The parties specifically acknowledge and agree
that the Escrow Agent shall have only those duties specifically set forth in,
and shall be required to act only in accordance with the terms and provisions of
, this Agreement. References to the Asset Purchase Agreement are made herein for
convenience only and the Escrow Agent is not responsible for or chargeable with
knowledge of the terms and conditions of that agreement or any other agreement,
instrument or document between the parties and shall have no liability,
obligations, responsibilities or duties under any such agreements, instruments
or documents.
16. WAIVERS AND AMENDMENTS. Any term or provision of this Escrow
Agreement may be waived at any time by the party which is entitled to the
benefits thereof, and any term or provision of this Escrow Agreement may be
amended or supplemented at any time by the mutual consent of the parties hereto,
except that any waiver of any term or condition, or any amendment or
supplementation, of this Escrow Agreement shall be effective only if in writing
and signed by the person or party against whom enforcement thereof is sought. A
waiver of any breach or failure to enforce any of the terms or conditions of
this Escrow Agent Agreement shall not in any way affect, limit or waive a
party's rights hereunder at any time to enforce strict compliance thereafter
with every term or condition of this Escrow Agreement.
17. DESCRIPTIVE HEADINGS. The descriptive headings of this Escrow
Agreement are for convenience only and shall not control or affect the meaning
or construction of any provision of this Escrow Agreement.
18. BINDING EFFECT. This Agreement shall be binding upon, and inure to
the benefit of, the heirs, administrators, executors, successors and assigns of
the parties hereto.
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19. EXPIRATION. Unless earlier terminated, this Agreement, and the
Escrow Agent's duties hereunder, shall expire two years after the date hereof,
except that Escrow Agent shall remain liable after expiration for payment of any
outstanding checks delivered by it hereunder and for the return of any portion
of the Escrow Amount then held by it; provided, that to the extent there then
exists any dispute among any parties as to entitlement to any portion of the
Escrow Amount, the following shall apply:
(a) The Escrow Agent shall be entitled to hold such portion of the
Escrow Amount beyond such expiration until receipt by Escrow Agent of (i)
written instructions jointly executed by each party directing disposition of the
Escrow Amount or (ii) an opinion of counsel to Superior, Enterprise, Whittaker
or Aviant, stating that such counsel has received and reviewed the arbitrator's
decision pursuant to Section 6 or any court order enforcing it (a copy of which
shall be attached), and that the arbitrator's decision or court order
constitutes a final, non-appealable decision or order (as applicable), in either
case ordering distribution of the Escrow Amount. Thereafter, the Escrow Agent
shall distribute such portion of the Escrow Amount in accordance with such
instructions, order or arbitrator's ruling.
(b) Alternatively, the Escrow Agent shall be entitled to commence an
action for interpleader naming the parties, and deposit the assets remaining in
the Escrow Account with a court of competent jurisdiction, upon which the Escrow
Agent shall be relieved from further obligation with respect to those assets.
20. GOVERNING LAW. This Escrow Agreement shall be governed by the laws
of the State of Michigan without reference to choice of law principles which
would require the application of the laws of any other jurisdiction.
21. COUNTERPARTS. This Escrow Agreement may be executed in any number
of counterparts and each of such counterparts shall, for all purposes, be deemed
an original, and all such counterparts shall together constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective corporate officers, thereunto duly authorized, as
of the day and year first above written.
SUPERIOR CONSULTANT HOLDINGS CORPORATION, ENTERPRISE CONSULTING GROUP, INC.,
A DELAWARE CORPORATION a Michigan corporation
BY: By:
-------------------------------------- -------------------------------
ITS: Its:
------------------------------------- ------------------------------
WHITTAKER CORPORATION, AVIANT INFORMATION, INC.,
a Delaware corporation a California corporation
By: By:
-------------------------------------- -------------------------------
Its: Its:
------------------------------------- ------------------------------
FIRST OF AMERICA BANK, N.A.
By:
--------------------------------
Its:
-------------------------------
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EXHIBIT A
SCHEDULE OF COMPENSATION
In addition to reimbursement of its fees and expenses as provided in
this Agreement, the Escrow Agent shall be paid an annual fee of $750 for each
twelve month period during which it serves as such. The annual fee shall be paid
with respect to the first year upon deposit of the Escrowed Funds and thereafter
upon each anniversary of the date of the Escrow Agreement.
<PAGE> 1
EXHIBIT 20
FOR IMMEDIATE RELEASE
SUPERIOR CONSULTANT HOLDINGS CORPORATION ACQUIRES
AVIANT INFORMATION, INC.
SOUTHFIELD, MICHIGAN, AUGUST 20, 1998 - SUPERIOR CONSULTANT HOLDINGS CORPORATION
(NASDAQ: SUPC) today announced that its wholly owned subsidiary, Enterprise
Consulting Group, Inc., has acquired the assets of Aviant Information, Inc.
(Aviant), a wholly owned subsidiary of Whittaker Corporation (NYSE: WKR).
Aviant, headquartered in Simi Valley, California, specializes in systems
integration, including project management, complex network design, network
planning, simulation, implementation and support. The cash transaction, valued
at $5.1 million, will be accounted for as an asset purchase.
Richard D. Helppie, Chairman, President, and CEO of Superior Consultant Holdings
Corporation, comments:
"Consistent with the processes we apply to all of our acquisitions, our
focus on delivering enhanced value to clients has resulted in several
joint engagements with clients, including the Detroit Medical Center,
Henry Ford Health System, and V.A. Medical Center of Detroit. Aviant
will further build on Superior's enterprise network solutions where we
design technology infrastructures for voice, video and data
communications; develop corporate Internet/intranet strategies; and
reengineer processes with contemporary and emerging technologies.
Aviant will further intensify our expertise with systems integration,
project management and network consulting, as well as enable Superior
to bring its extensive services to General Motors, yet another
world-class, multi-national client.
"We're pleased to welcome Aviant's 34 experienced employees to
Superior, and we're ready to commit to them our founding principles of
speed, quality and attention to detail."
Aviant has provided project management and network consulting services for more
than 1,000 clients in 52 countries, including more than 300 healthcare
organizations within the United States. Eighty-eight percent of Aviant's revenue
is generated from healthcare clients, including Mercy Health Services,
Farmington Hills, Michigan; PeaceHealth, Seattle, Washington; Providence
Hospital & Medical Center, Southfield, Michigan; Cabrini Medical Center, New
York City, New York; St. John Health System, Detroit, Michigan; Provena Health
System, Joliet, Illinois; and many more. Aviant's offices in Los Angeles, St.
Louis, and Portland, Oregon, will become Superior Consultant Holdings
Corporation offices.
One of the exclusive services Aviant brings to its clients, and now those of
Superior, is a proprietary simulation tool used to optimize network upgrades and
software implementations. By assessing beforehand the degree to which new
technology and platforms will impact systems at varying transaction volume
levels, Aviant is able to predict the impact of the changes before they are
made, thereby minimizing unanticipated problems.
Clients utilize Aviant's simulation tool to determine the ramifications of
switching from a Novell network to Windows NT, the influence on response time by
a new electronic medical record system, and the effects, if any, on users during
the development of a data repository system.
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Andrew Rushmere, President of Aviant comments:
"We could not have found a better partner than Superior in terms of common
culture, commitment to delivering real value to clients and creating
meaningful career opportunities for employees. Even within the past several
weeks, we have come to understand many of the reasons why Superior's
acquisitions have been so successful. Our clients have reacted very
enthusiastically to this merger, embracing the combination of our expertise
with Superior's wealth of diverse services and reputation for quality and
scale.
"We now will be able to leverage the capital, distribution channel,
geographic reach and diversity of services to satisfy a greater proportion
of our clients' needs. Like Superior, we can now also offer a single source
solution for all management and information technology consulting services
to our clients."
Douglas W. Ruth, President of Superior's Enterprise Consulting Group states:
"The consummation of this transaction propels Enterprise Consulting Group
into one of the largest single-source integrated network consulting firms
in the United States. Aviant's enhanced network consulting services will
combine with our services in Enterprise Messaging, Web strategies,
Groupware, and Software and Application development to build on our mission
to provide a full breadth of client services through a single
relationship."
This release contains forward-looking statements relating to future
financial results or business expectations. Business plans may change as
circumstances warrant. Actual results may differ materially as a result of
factors over which the company has no control. Such factors include, but are not
limited to: acquisitions contracted or under consideration, significant client
assignments, recruiting and new business solicitation efforts, regulatory
changes and general economic conditions. These risk factors and additional
information are included in the company's reports on file with the Securities
and Exchange Commission.
ABOUT SUPERIOR CONSULTANT HOLDINGS CORPORATION
Superior Consultant Holdings Corporation is a national consulting firm
comprising two subsidiaries: Superior Consultant Company, Inc. (established in
1984) offers a full array of strategic, managerial, operational and technical
services to all segments of the healthcare industry; and Enterprise Consulting
Group, Inc. (established in 1993), assists clients across a wide range of
industries in the development, design, implementation and maintenance of
groupware and intranet/Internet information systems and solutions.
For more information on Superior Consultant Holdings Corporation simply dial
1-800-PRO-INFO and enter the company ticker: SUPC (a no-cost fax-on-demand
service) or visit the Company's website at www.superiorconsultant.com
FOR FURTHER INFORMATION CONTACT:
Richard D. Helppie, President & CEO
Susan M. Synor, Vice President & CAO
Superior Consultant Company, Inc.
4000 Town Center, Suite 1100
Southfield, MI 48075
(248) 386-8300
