<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 1998
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM TO
-------------------- --------------------
Commission File Number: 000-24373
GLOBAL IMAGING SYSTEMS, INC.
- --------------------------------------------------------------------------------
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 59-3247752
- ------------------------------------ ------------------------------------
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
3820 Northdale Boulevard, Suite 200A 33624
Tampa, Florida
- ------------------------------------ ------------------------------------
(ADDRESS OF PRINCIPAL EXECUTIVE (ZIP CODE)
OFFICES)
REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: 813-960-5508
13902 North Dale Mabry Highway, Suite 300, Tampa, Florida 33618
- --------------------------------------------------------------------------------
(FORMER NAME OR FORMER ADDRESS, IF CHANGED SINCE LAST REPORT)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes [ X ] No [ ]
The registrant had 18,657,376 Shares of Common Stock, $.01 par value,
outstanding as of February 12, 1999.
<PAGE>
INDEX
Page
----
PART I--FINANCIAL INFORMATION
ITEM 1--Consolidated Financial Statements
Consolidated Balance Sheets as of December 31, 1998 (Unaudited)
and March 31, 1998 3
Consolidated Statements of Operations for the three months ended 4
December 31,1998 and 1997 (Unaudited)
Consolidated Statements of Operations for the nine months ended
December 31, 1998 and 1997 (Unaudited) 5
Consolidated Statements of Cash Flows for the nine months ended
December 31, 1998 and 1997 (Unaudited) 6
Consolidated Statement of Stockholders' Equity for the nine
months ended December 31, 1998 (Unaudited) 7
Notes to Consolidated Financial Statements (Unaudited) 8
ITEM 2--Management's Discussion and Analysis of Financial Condition
and Results of Operations 11
PART II--OTHER INFORMATION
ITEM 2--Changes in Securities and Use of Proceeds 23
ITEM 6--Exhibits and Reports on Form 8-K 23
Signature 25
Exhibit Index 26
<PAGE>
PART 1--FINANCIAL INFORMATION
ITEM 1. Consolidated Financial Statements
GLOBAL IMAGING SYSTEMS, INC.
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS EXCEPT FOR SHARE AMOUNTS)
<TABLE>
<CAPTION>
December 31, March 31,
ASSETS 1998 1998
------------ ----------
(Unaudited)
<S> <C> <C>
Current assets:
Cash and cash equivalents $4,247 $4,496
Accounts receivable, net of allowance for doubtful
accounts($1,296 and $871 at December 31, 1998
and March 31, 1998, respectively) 44,903 27,572
Inventories 27,193 19,061
Deferred income taxes 1,834 1,543
Prepaid expenses and other current assets 1,729 425
------------ ----------
Total current assets 79,906 53,097
Rental equipment, net 4,641 4,065
Property and equipment, net 5,231 4,419
Other assets 642 2,147
Deferred income taxes 107 571
Related party notes receivable 47 547
Intangible assets, net:
Goodwill 183,742 94,685
Noncompete agreements 1,229 1,336
Financing fees 1,215 2,885
------------ ----------
Total assets $276,760 $164,342
============ ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $15,229 $10,556
Accrued liabilities 5,960 3,878
Accrued compensation and benefits 4,458 3,543
Current maturities of long-term debt 137 233
Deferred revenue 15,461 10,632
Income taxes payable 494 -
------------ ----------
Total current liabilities 41,739 28,842
Long-term debt, less current maturities 145,627 97,252
------------ ----------
Total liabilities 187,366 126,094
Stockholders' equity:
Preferred stock, $.01 par value:
10,000,000 shares authorized: No shares issued. - -
Class A common stock, $.01 par value:
400,000 shares authorized: 339,945
shares issued and outstanding at March 31, 1998 - 3
Class B common stock, $.01 par value:
50,000,000 shares authorized: 9,521,058
shares issued and outstanding at March 31, 1998 - 95
Class C common stock, $.01 par value:
905,000 shares authorized: 904,252
shares issued and outstanding at March 31, 1998 - 9
Common stock, $.01 par value:
50,000,000 shares authorized: 18,657,376
shares issued and outstanding at December 31, 1998 187 -
Additional paid-in capital 82,624 33,618
Retained earnings 6,583 4,754
------------ ----------
89,394 38,479
Less stockholder receivables - (231)
------------ ----------
Total stockholders' equity 89,394 38,248
------------ ----------
Total liabilities and stockholders' equity $276,760 $164,342
============ ==========
</TABLE>
See accompanying notes
3
<PAGE>
GLOBAL IMAGING SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
(IN THOUSANDS EXCEPT PER-SHARE AMOUNTS)
<TABLE>
<CAPTION>
Three Months Ended
December 31,
1998 1997
--------- ---------
<S> <C> <C>
Revenues:
Equipment and supplies sales $58,028 $34,790
Service and rentals 17,625 11,925
--------- ---------
Total revenues 75,653 46,715
Costs and operating expenses:
Cost of equipment and supplies sales 40,616 24,851
Service and rental costs 8,940 6,973
Selling, general and administrative expenses 16,368 10,856
Intangible asset amortization 1,195 843
--------- ---------
Total costs and operating expenses 67,119 42,523
--------- ---------
Income from operations 8,534 4,192
Interest expense 1,757 1,980
--------- ---------
Income before income taxes and extraordinary item 6,777 2,212
Income taxes 2,948 1,099
--------- ---------
Income before extraordinary item 3,829 1,113
Extraordinary charge for early retirement of debt,
net of tax benefit - -
--------- ---------
Net income 3,829 1,113
Yield adjustment on Class A common stock and accretions - (533)
--------- ---------
Net Income available to common stockholders $3,829 $580
========= =========
Basic earnings per share:
Income before extraordinary item, including
yield adjustment and accretions $0.21 $0.06
Extraordinary charge for early retirement of debt,
net of tax benefit - -
--------- ---------
Net income per share $0.21 $0.06
========= =========
Diluted earnings per share:
Income before extraordinary item, including
yield adjustment and accretions $0.21 $0.06
Extraordinary charge for early retirement of debt,
net of tax benefit - -
--------- ---------
Net income per share $0.21 $0.06
========= =========
Weighted average number of shares outstanding (in thousands):
Basic 18,054 9,959
Diluted 18,176 9,959
</TABLE>
See accompanying notes.
4
<PAGE>
GLOBAL IMAGING SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS (Unaudited)
(IN THOUSANDS EXCEPT PER-SHARE AMOUNTS)
<TABLE>
<CAPTION>
Nine Months Ended
December 31,
1998 1997
---------- ---------
<S> <C> <C>
Revenues:
Equipment and supplies sales $153,320 $80,515
Service and rentals 47,541 29,515
--------- ---------
Total revenues 200,861 110,030
Costs and operating expenses:
Cost of equipment and supplies sales 109,425 57,487
Service and rental costs 23,495 14,493
Selling, general and administrative expenses 43,661 25,818
Intangible asset amortization 3,039 2,160
--------- ---------
Total costs and operating expenses 179,620 99,958
--------- ---------
Income from operations 21,241 10,072
Interest expense 5,443 4,534
--------- ---------
Income before income taxes and extraordinary item 15,798 5,538
Income taxes 7,044 2,749
--------- ---------
Income before extraordinary item 8,754 2,789
Extraordinary charge for early retirement of debt,
net of tax benefit of $1,241 (1,817) -
--------- ---------
Net income 6,937 2,789
Yield adjustment on Class A common stock and accretions (901) (1,349)
--------- ---------
Net Income available to common stockholders $6,036 $1,440
========= =========
Basic earnings per share:
Income before extraordinary item, including
yield adjustment and accretions $0.50 $0.15
Extraordinary charge for early retirement of debt,
net of tax benefit of $1,241 (0.12) -
--------- ---------
Net income per share $0.38 $0.15
========= =========
Diluted earnings per share:
Income before extraordinary item, including
yield adjustment and accretions $0.48 $0.15
Extraordinary charge for early retirement of debt,
net of tax benefit of $1,241 (0.11) -
--------- ---------
Net income per share $0.37 $0.15
========= =========
Weighted average number of shares outstanding (in thousands):
Basic 15,756 9,523
Diluted 16,144 9,523
</TABLE>
See accompanying notes.
5
<PAGE>
GLOBAL IMAGING SYSTEMS, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS (Unaudited)
(IN THOUSANDS)
<TABLE>
<CAPTION>
Nine Months Ended
December 31,
1998 1997
------- --------
<S> <C> <C>
Operating activities
Net Income $6,937 $2,789
Adjustments to reconcile net income to net cash provided by operating activities:
Depreciation 3,324 2,539
Amortization 6,326 2,581
Deferred income taxes 173 (98)
Changes in operating assets and liabilities, net of amounts acquired in
purchase business combinations:
Accounts receivable (8,930) (3,072)
Inventories (1,857) (283)
Prepaid expenses and other current assets (1,179) (304)
Other assets 95 (150)
Accounts payable 3,004 (1,247)
Accrued liabilities and compensation of benefits (207) (584)
Deferred revenue (94) 417
Income taxes payable (292) (439)
------- -------
Net cash provided by operating activities 7,300 2,149
Investing activities
Related party notes receivable 500 (500)
Purchase of property, equipment and rental equipment (3,255) (2,671)
Payment for purchase of businesses, net of cash acquired (81,955) (61,779)
------- -------
Net cash used in investing activities (84,710) (64,950)
Financing activities
Net draws (payments) under line of credit 48,279 55,685
Financing fees (1,611) (854)
Common stock redemption and retirement (35,339) -
Common stock issued for cash 65,832 10,907
------- -------
Net cash provided by financing activities 77,161 65,738
------- -------
Net increase (decrease) in cash and cash equivalents (249) 2,937
Cash and cash equivalents, beginning of period 4,496 961
------- -------
Cash and cash equivalents, end of period $4,247 $3,898
======= =======
</TABLE>
See accompanying notes.
6
<PAGE>
GLOBAL IMAGING SYSTEMS, INC.
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY (Unaudited)
(IN THOUSANDS EXCEPT FOR SHARE AMOUNTS)
<TABLE>
<CAPTION>
Class A Class B Class C
Common Stock Common Stock Common Stock Common Stock
----------------------------------------------------------------------------------------------
Shares Par Shares Par Shares Par Shares Par
Value Value Value Value
----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balances at March 31, 1998 339,945 $ 3 9,521,101 $ 95 904,252 $ 9 $ -
Common stock issued in
Initial Public Offering 6,000,000 60
Common stock issued in
conjunction with Acquisitions 1,073,737 11
Common stock retired (390,945) (3)
Dividend -
Class A common stock
Common stock converted (9,521,101) (95) (904,252) (9) 11,583,639 116
Cost of Initial Public Offering
Net Income
----------------------------------------------------------------------------------------------
Balances at December 31, 1998 - $ - - $ - - $ - 18,657,376 $ 187
=========== ======== ============= ======== ============= ======== ============= ========
<CAPTION>
Additional
Paid-in Stockholder Retained
Capital Receivables Earnings Total
------------------------------------------------------
<S> <C> <C> <C> <C>
Balances at March 31, 1998 $ 33,618 $ (231) $ 4,754 $ 38,248
Common stock issued in
Initial Public Offering 66,900 66,960
Common stock issued in
conjunction with Acquisitions 15,181 15,192
Common stock retired (30,459) 231 (133) (30,364)
Dividend -
Class A common stock (4,975) (4,975)
Common stock converted (12) -
Cost of Initial Public Offering (2,604) (2,604)
Net Income 6,937 6,937
------------------------------------------------------
Balances at December 31, 1998 $ 82,624 $ - $ 6,583 $ 89,394
============= ============= =========== =============
</TABLE>
See accompanying notes.
7
<PAGE>
GLOBAL IMAGING SYSTEMS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (Unaudited)
NOTE 1. BASIS OF PRESENTATION
The accompanying consolidated balance sheet as of December 31, 1998,
consolidated statements of operations for the three and nine months ended
December 31, 1998 and 1997, the consolidated statements of cash flows for the
nine months ended December 31, 1998 and 1997, and the consolidated statement of
stockholders' equity for the nine months ended December 31, 1998 are unaudited.
In the opinion of management, all adjustments, consisting of normal recurring
accruals, necessary for a fair presentation of the results of operations for the
interim periods presented have been reflected herein. The results of operations
for the interim periods are not necessarily indicative of the results which may
be expected for the entire fiscal year. The consolidated financial statements
should be read in conjunction with the consolidated financial statements and the
notes thereto included in the Registration Statement on Form S-1, File No. 333-
48103, filed by Global Imaging Systems, Inc. (together with its subsidiaries,
"Global" or the "Company") and declared effective by the Securities and Exchange
Commission on June 17, 1998.
NOTE 2. EARNINGS PER SHARE
Basic earnings per share ("EPS") is computed by dividing net income by the
weighted average number of shares outstanding for the period. Diluted EPS
reflects the potential dilution from the exercise of stock options or the
conversion of securities into stock.
The following table reconciles the numerators and denominators of the basic and
diluted EPS computations:
<TABLE>
<CAPTION>
(In thousands except per share amounts)
For Three Months Ended For Nine Months Ended
December 31, December 31, December 31, December 31,
1998 1997 1998 1997
------------ ------------ ----------- ------------
<S> <C> <C> <C> <C>
Numerator:
Income before extraordinary item $3,829 $1,113 $8,754 $2,789
Extraordinary charge for early retirement of debt, net
of tax benefit - - 1,817 -
------- ------- ------- -------
Net income 3,829 1,113 6,937 2,789
Yield adjustment on Class A common stock
and accretions - (533) (901) (1,349)
------- ------- ------- -------
Numerator for basic and diluted earnings per share -
income available to common stockholders $3,829 $580 $6,036 $1,440
======= ======= ======= =======
Denominator:
Denominator for basic earnings per share 18,054 9,959 15,756 9,523
Effect of dilutive securities:
Contingent stock-redemption of A shares in June 1998 327
Employee stock options 122 - 61 -
------- ------- ------- -------
Dilutive potential common shares 122 - 388 -
Denominator for diluted earnings per share - adjusted
weighted average shares and assumed conversions 18,176 9,959 16,144 9,523
======= ======= ======= =======
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Basic earnings per share:
Earnings per share before extraordinary item, including yield
adjustments and accretions $0.21 $0.06 $0.50 $0.15
Extraordinary charge for early retirement of debt, net of tax
benefit - - (0.12) -
------ ----- ------ ------
Net income per share $0.21 $0.06 $0.38 $0.15
====== ===== ====== ======
Diluted earnings per share:
Earnings per share before extraordinary item, including yield
adjustments and accretions $0.21 $0.06 $0.48 $0.15
Extraordinary charge for early retirement of debt, net of tax
benefit - (0.11)
------ ----- ------ ------
Net income per share $0.21 $0.06 $0.37 $0.15
====== ===== ====== ======
</TABLE>
NOTE 3. INITIAL PUBLIC OFFERING AND USE OF PROCEEDS
In April 1998, the Board of Directors approved a change in the Company's capital
stock structure, authorizing 10,000,000 shares of $.01 par value preferred
stock, 50,000,000 shares of $.01 par value Class B common stock and 905,000
shares of $.01 par value Class C common stock. The Board also authorized a 132-
for-1 stock split for holders of its Class B and Class C common stock; provided
for the automatic conversion into one share of Class B common stock of each
share of its Class C common stock upon the consummation of the initial public
offering; the redemption of each share of Class A common stock for $90 plus 8%
per annum from the time of its purchase through May 31, 1998 and approximately
3.41 shares of Class B common stock upon the consummation of the initial public
offering; and renamed its class B common stock ("Common Stock").
In June 1998, the Company sold 6,000,000 shares of the Company's Common Stock,
par value $.01, in an initial public offering. The aggregate offering price of
the 6,000,000 shares was $72,000,000. After deducting underwriting discounts,
commissions and expenses, the Company received approximately $64,185,000 in
proceeds from the initial public offering. Of the $64,185,000 in net proceeds to
the Company, $28,831,000 was used to repay amounts due Jackson National Life
Insurance Company ("JNL"). The remaining approximately $35,354,000 in proceeds
was used to pay the cash portion of the redemption price of the Company's Class
A Common Stock, redeemed upon the closing of the initial public offering.
NOTE 4. RETIREMENT OF DEBT
In June 1998, the Company repaid $31.5 million of long-term debt outstanding to
JNL, principally with proceeds from the initial public offering. Recognition of
a prepayment penalty of $250,000 and deferred financing costs of $901,000
related to the JNL debt repayment resulted in an extraordinary charge of
$684,000 ($.06 per share), net of related income tax benefit of $467,000. In
July 1998, the Company repaid the remaining $65.8 million balance of the JNL
loan with proceeds from a replacement credit agreement ("The Credit Agreement")
with First Union National Bank ("First Union"). The Company recognized the
remaining pro rata deferred financing costs of $1,907,000 from the JNL loan,
resulting in an extraordinary charge of $1,133,000 ($.06 per share), net of
related income tax benefit of $774,000. The Credit Agreement with First Union
consists of a $5.0 million swingline line of credit and a $170.0 million
revolving line of credit. The Credit Agreement bears interest at rates ranging
from 0.75% to 1.5% over LIBOR or, at the Company's option, ranging from 0.0% to
0.5% over a base rate related to prime rate, and varies according to the
Company's ratio of its total funded debt to earnings before interest, taxes,
depreciation, and amortization. Amounts borrowed under the Credit Agreement may
be repaid and reborrowed over the life of the Credit Agreement, with a final
maturity date of July 31, 2003. Under the Credit Agreement, the Company has
pledged
9
<PAGE>
substantially all of its assets, including the capital stock of the
Company's subsidiaries, to First Union. Amounts borrowed under the Credit
Agreement may be used to fund working capital and general corporate purposes,
including acquisitions.
NOTE 5. STOCK OPTIONS AND STOCK OPTION PLAN
The Board of Directors adopted a stock option plan, effective upon the closing
of the initial public offering. Under the terms of the stock option plan
1,820,000 shares of the Company's common stock may be sold pursuant to stock
options or granted or sold as restricted stock to directors, officers,
employees, and consultants to the Company. As of December 31, 1998 the Board
had granted options to purchase a total of 519,750 shares of common stock of the
Company under the stock option plan and an option to purchase 10,000 shares of
common stock of the Company outside of the stock option plan, all at an exercise
price of $12, equal to the offering price per share in the Company's initial
public offering. All of these options are subject to vesting requirements based
on length of service.
NOTE 6. ACQUISITIONS
During the nine months ended December 31, 1998 the Company acquired six
businesses that provide office-imaging solutions and related services.
Aggregate consideration for these six acquisitions was approximately
$101,108,000, including $83,498,000 in cash, plus stock valued at approximately
$16,076,000, and acquisition related expenses of $510,000. Liabilities totaling
$47,378,000 were assumed by the Company in connection with these acquisitions.
Goodwill of approximately $92,110,000 was recorded related to these
acquisitions. All acquisitions were accounted for by the purchase method of
accounting and accordingly are included in the results of operations from their
dates of acquisitions.
Under the terms of one of its purchase agreements, the Company is committed to
make contingent payments (the Earn-out) of up to $600,000 to two of the former
owners of the acquired company on or before October 31, 2001. These contingent
payments are based on the future profitability, specifically earnings before
interest and taxes, of the acquired company.
The unaudited pro forma results presented below include the effects of the
acquisitions as if they had been consummated as of April 1, 1997. The unaudited
pro forma financial information below is not necessarily indicative of either
future results of operations or results that might have been achieved had the
acquisitions been consummated at the beginning of the year prior to acquisition.
<TABLE>
<CAPTION>
Unaudited Pro forma
Nine Months ended December 31,
(In Thousands Except Per Share Amounts)
------------------------------------------
1998 1997
----------------- ---------------
<S> <C> <C>
Revenues.............................. $247,871 $213,430
Net income before extraordinary item.. 7,294 2,577
Less extraordinary item............... (1,817) -
--------------- -------------
Net income............................ $ 5,477 $ 2,577
=============== =============
</TABLE>
10
<PAGE>
<TABLE>
<S> <C> <C>
Basic earnings per share:
Income before extraordinary item,
including yield adjustment and accretions..... $ 0.34 $ 0.07
Net income per share........................... $ 0.25 $ 0.07
Diluted earnings per share:
Income before extraordinary item, including
yield adjustment and accretions........... $ 0.34 $ 0.07
Net income per share........................... $ 0.24 $ 0.07
</TABLE>
ITEM 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
The discussion below contains forward-looking statements which involve
known and unknown risks, uncertainties and other factors which may cause the
actual results, performance or achievements of Global Imaging Systems, Inc.
("Global" or the "Company") or its industry to be materially different from any
future results, performance or achievements expressed or implied by such
forward-looking statements. Such factors include, among others: the Company's
need for substantial additional funding to continue to implement its acquisition
strategy and its ability to obtain such funding, the Company's need to integrate
acquired businesses into its operations profitability, the ability of the
Company and various third parties to make the Company's software Year 2000
compliant at projected costs and on anticipated timetables, the pace and effects
of technological developments in the Company's industry and other risk factors
discussed in the Company's Registration Statement on Form S-1, File No. 333-
48103, declared effective on June 17, 1998.
Overview
Global was founded in June 1994 with the goal of becoming a leading
consolidator in the highly fragmented office imaging solutions industry. Global
is a rapidly growing provider of a number of office imaging solutions. This
includes the sale and service of automated office equipment such as copiers,
facsimile machines, printers and duplicators, network integration services,
electronic presentation equipment and document imaging management systems
("DIM") systems. Since Global's founding, Global has acquired twelve core
companies in the United States, and 18 additional satellite companies that
have been integrated into the core companies. The first acquisition was
completed in August 1994. Management believes that the businesses that have been
acquired by Global and other businesses that Global plans to acquire will
benefit from various Global programs and operating strategies. These benefits
include increased operating efficiencies, the support of experienced and
professional senior management, expansion of the types of office imaging
products and services offered, increased access to capital, and increased
emphasis on financial management.
Global's revenues come from two sources: (1) sales of equipment and supplies
and (2) sales of complementary services and equipment rentals. The growth of
equipment revenues and the complementary supplies, parts and service revenues
depends on several factors, including the demand for equipment, Global's
reputation for providing timely and reliable service, and general economic
conditions. Revenues generated from the sale of equipment and complementary
supplies, parts and services are affected by price, general economic
conditions, service reputation, and competitors' actions in the marketplace.
Revenues from the sale of complementary supplies, parts and services are also
affected by equipment sales and rental volumes.
Gross profit as a percentage of revenues varies from period to period
depending on a number of variables. Those variables include the mix of
revenues from equipment, supplies, service and rentals; the mix of revenues
among the markets served by Global; and the mix of revenues of the businesses
acquired. As Global acquires businesses, the percentage of its revenues that
come from sales of equipment and supplies, as opposed to service and rentals,
fluctuates according to whether the businesses acquired are automated office
equipment dealers or are network integrators or electronic presentation
systems or DIM systems dealers. Automated office equipment dealers typically
derive a higher percentage of their revenues from service and rentals, and a
lower percentage from sales of equipment and supplies, than do network
integrators, electronic presentation or DIM systems dealers. Generally, sales
of equipment and supplies have lower gross profit margins than sales of
service and rentals. In addition, equipment sales in the automated office
equipment market generally have higher gross profit margins than equipment
sales in the network integration, electronic presentation systems or DIM
systems markets. Management expects that, over time, Global will become more
involved in the network integration, electronic presentation systems and DIM
systems markets, as these markets are growing faster than the automated office
equipment market. Therefore, over time a larger percentage of Global's
revenues and gross profits may be derived from sales that have lower gross
profit margins than Global's current gross profit margins.
Cost of goods sold consists primarily of the cost of new equipment, cost of
supplies and parts, labor costs to provide services, rental equipment
depreciation and other direct operating costs. Global depreciates its rental
equipment primarily over a three-year period on a straight-line basis with no
residual value.
Recent Developments
Since December 31, 1998, Global has signed non-binding letters of intent to
acquire two additional businesses, one a core company serving the Texas market
and the other a satellite company in the Pacific Northwest, with a combined
total of approximately $24 million in annual revenues. These proposed
acquisitions have not been included in any pro forma financial information
contained in this offering memorandum. Global is also continuously evaluating
and having discussions with other acquisition candidates as part of its growth
strategy.
Results of Operations
The following table sets forth selected consolidated financial information as
a percentage of total revenues.
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
-------------------------------- --------------------------------
December 31, December 31, December 31, December 31,
1998 1997 1998 1997
-------------- -------------- -------------- --------------
Revenues:
<S> <C> <C> <C> <C>
Equipment and supplies sales........... 76.7% 74.5% 76.3% 73.2%
Service and rentals.................... 23.3 25.5 23.7 26.8
------- ------- ------- -------
Total revenues........................... 100.0 100.0 100.0 100.0
Costs and operating expenses:
Cost of equipment and supplies
sales................................. 53.7 53.2 54.5 52.2
Service and rental costs............... 11.8 12.8 11.7 13.2
Selling, general, and
administrative expenses............... 21.6 23.2 21.7 23.5
Intangible asset amortization.......... 1.6 1.8 1.5 2.0
------- ------- ------- -------
Total costs and operating expenses....... 88.7 91.0 89.4 90.8
------- ------- ------- -------
Income from operations................... 11.3 9.0 10.6 9.2
Interest expense......................... 2.3 4.2 2.7 4.1
------- ------- ------- -------
Income before income taxes and
extraordinary item..................... 9.0 4.8 7.9 5.0
Income taxes............................. 3.9 2.4 3.5 2.5
------- ------- ------- -------
Income before extraordinary item......... 5.1 2.4 4.4 2.5
Extraordinary charge for early
retirement of debt, net of tax benefit.. - - (.9) -
------- ------- ------- -------
Net income............................... 5.1% 2.4% 3.5% 2.5%
======= ======= ======= =======
</TABLE>
Three Months Ended December 31, 1998 Compared to Three Months Ended December 31,
1997
Revenues
Total revenues for the three months ended December 31, 1998 increased to
$75.7 million, 61.9% higher than total revenues of $46.7 million for the same
period in 1997. The majority of revenue
11
<PAGE>
growth was due to the acquisition of businesses during 1998, with the remainder
coming from internal growth.
Sales of equipment and supplies for the three months ended December 31, 1998
increased to $58.0 million, 66.8% higher than sales of equipment and supplies of
$34.8 for the same period in 1997. The equipment component of sales of the
businesses acquired in 1998 was a larger portion of total revenues than for
Global's existing businesses.
Service and rental revenues for the three months ending December 31, 1998
increased to $17.6 million, 47.8% higher than service and rental revenues of
$11.9 for the same period in 1997.
Gross Profit
Gross profit for the three months ending December 31, 1998 increased to $26.1
million, 64.2% higher than gross profit of $15.9 million for the same period in
1997. When viewed as a percent of total revenue, gross profit was 34.5% for the
three months ending December 31, 1998 versus 34.0% for the same period in 1997.
The change in total gross profit margins was due to the change in the revenue
mix. Office equipment dealers typically receive a higher percentage of total
revenues from service and rentals, while network integration and electronic
presentation systems and DIM systems dealers derive a higher percentage of total
revenues from sales of equipment and supplies. The equipment component of sales
of the business acquired in 1998 accounted for a larger portion of total
revenues than Global's existing businesses. Sales of equipment and supplies
generally generate lower gross profit margins than service and rental revenues.
Combined service and rental gross profit margins were 49.3% for the three months
ended March 31, 1998 and 49.9% for the same period the previous year.
Selling, General and Administrative Expenses
Selling, general and administrative expenses for the three months ending
December 31, 1998 increased to $16.4 million, 50.1% higher than selling, general
and administrative expenses of $10.9 million for the same period in 1997. The
increase in expenses was mostly due to the acquisition of businesses 1998. The
decline in expenses as a percentage of revenue was the result of the acquisition
of profitable businesses, the change in the composition of Global's businesses,
and revenues increasing by 61.9% without an equal percentage increase in
selling, general, and administrative expenses.
Intangible Asset Amortization
Intangible asset amortization was $1.2 million for the three months ended
December 31, 1998. During the same period in 1997, asset amortization was $.8
million. Asset amortization includes the amortization of goodwill and non-
compete agreements from acquisitions.
Income From Operations
Income from operations for the three months ended December 31, 1998 was $8.5
million, 103.6% higher than $4.2 million from the same period in 1997.
12
<PAGE>
Interest Expense
Interest expense for the three months ended December 31, 1998 was $1.8
million, 11.3% lower than $2.0 million from the same period in 1997. The
decrease was primarily due to lower borrowing rates in Global's borrowings.
Income Taxes
The provision for income taxes for the three months ended December 31, 1998
was $2.9 million, 168.2% higher than $1.1 from the same period in 1997. The
increase in income taxes was primarily due to increased pre-tax income resulting
from the inclusion of businesses acquired during 1998. The effective income tax
rate decreased from 49.7% for the three months ending December 31, 1997 to 43.5%
for the three months ended December 31, 1998. The effective income tax rate for
1998 was higher than the federal statutory rate of 35.0% plus state and local
taxes, primarily due to non-deductible goodwill amortization relating to the
businesses acquired during 1998. See Note 8 of Notes to Consolidated Financial
Statements.
Nine Months Ended December 31, 1998 Compared to Nine Months Ended December 31,
1997
Revenues
Total revenues for the nine months ended December 31, 1998 were $200.9
million, an increase of 82.6% over the same period in 1997. The majority of
revenue growth was due to the acquisition of businesses during 1997 and 1998,
with the remainder coming from internal growth.
Sales of equipment and supplies increased to $153.3 million for the nine
months ended December 31, 1998, an increase of 90.4% over the same period in
1997. The equipment component of sales was a larger portion of the businesses
acquired in 1997 and 1998 than for Global's existing businesses.
Service and rental revenues for the nine months ended December 31, 1998
increased to $47.5 million, an increase of 61.1% from the same period in 1997.
Gross Profit
Gross profit of $67.9 million for the nine months ended December 31, 1998
reflected a 78.6% increase over the same period in 1997. Expressed as a
percent of total revenue, gross profit was 33.8% for the nine months ended
December 31, 1998 compared to 34.6% for the same period in 1997. The change in
total gross profit margins was due to the change in the revenue mix. Office
equipment dealers typically receive a higher percentage of total revenues from
service and rentals, while network integration and electronic presentation
systems and DIM systems dealers derive a higher percentage of total revenues
from sales of equipment and supplies. The equipment component of sales of the
businesses acquired in 1997 and 1998 accounted for a larger portion of total
revenues than Global's existing businesses. Sales of equipment and supplies
generally generate lower gross profit margins than service and rental
revenues. Combined service and rental gross profit margins were 50.6% for the
nine months ended December 31, 1998 and 50.9% for the same period the previous
year.
Selling, General and Administrative Expenses
Selling, general and administrative expenses were $43.7 million for the nine
months ended December 31, 1998, an increase of 69.1% from the same period in
1997. The increase in expenses was mostly due to the acquisition of businesses
in 1997 and 1998. The decline in expenses as a percentage of revenues was the
result of the acquisition of profitable businesses, the change in the
composition of Global's businesses, and revenues increasing by 82.6% without
an equal percentage increase in selling, general, and administrative expenses.
Intangible Asset Amortization
For the nine months ended December 31, 1998, asset amortization was $3.0
million. During the same period in 1997, asset amortization was $2.2 million.
Asset amortization includes the amortization of goodwill and non-compete
agreements from acquisitions.
Income From Operations
Income from operations was $21.2 million for the nine months ended December
31, 1998, an increase of 110.9% from the same period in 1997.
Interest Expense
Interest expense increased to $5.4 million for the nine months ended
December 31, 1998, an increase of 20.0%. Interest expense for the same period
in 1997 was $4.5 million. The increase was primarily due to the increase in
Global's borrowings. The proceeds from the additional borrowings were used to
fund the cost of the businesses acquired in 1998.
Income Taxes
The provision for income taxes was $7.0 million for the nine months ended
December 31, 1998 and $2.8 million for the nine months ended December 31,
1997. The increase in income taxes was primarily due to increased pre-tax
income resulting from the inclusion of businesses acquired during 1997 and
1998. The effective income tax rate decreased slightly to 44.6% for the nine
months ended December 31, 1998 from 49.7% for the nine months ended December
31, 1997. The effective income tax rate for 1997 and 1998 was higher than the
federal statutory rate of 34.0% plus state and local taxes, primarily due to
non-deductible goodwill amortization relating to the businesses acquired
during the fiscal years ended March 31, 1998 and the nine months ended
December 31, 1998.
Liquidity and Capital Resources
Historically, Global has financed its operations primarily through internal
cash flow, sales of stock and bank financing, including the financing
facilities described below. These sources of funds have been used to fund
Global's growth both internally and through acquisitions. Global is pursuing
an acquisition strategy and expects to acquire more businesses. As Global
continues to acquire more businesses it is likely that Global will incur
additional debt and seek additional equity capital.
Global's senior credit facility with First Union National Bank consists of a
$175.0 million senior secured revolving line of credit, including access to a
$5.0 million swingline line of credit. The senior credit facility is available
for acquisitions and for working capital purposes. At December 31, 1998,
$115.0 million was outstanding under the senior credit facility. The senior
credit facility bears interest at rates ranging from 0.75% to 1.5% over LIBOR
or from 0.0% to 0.5% over a base rate related to prime rate, and varies
according to Global's ratio of its total funded debt to earnings before
interest, taxes, depreciation and amortization. Amounts borrowed under the
senior credit facility may be repaid and reborrowed over the life of the
senior credit facility, with a final maturity date of July 29, 2003. The terms
of the senior credit facility require strict compliance with numerous
affirmative, negative and financial covenants. Amounts borrowed under the
revolving line of credit may be used to fund working capital and general
corporate purposes, including acquisitions, subject to First Union National
Bank's approval in the case of acquisitions with a cash purchase price of over
$15.0 million or an aggregate price (cash, stock or other consideration) of
over $40.0 million.
Global plans to amend and increase the size of its senior credit facility.
Under the terms of a commitment letter Global expects to enter into with First
Union National Bank, First Union National Bank is expected to commit to
providing and arranging a $200.0 million, five-year senior secured revolving
line of credit, including access to a $5.0 million swingline line of credit. As
so amended, the senior credit facility is expected to bear interest at rates
ranging from 1.75% to 2.50% over LIBOR or from 0.50% to 1.25% over a base rate
related to prime rate, and varying according to Global's ratio of its total
funded debt to earnings before interest, taxes, depreciation and amortization.
First Union National Bank and Global contemplate that amounts borrowed under the
senior credit facility may be repaid and reborrowed over the life of the senior
credit facility, with a final maturity date of five years after the amendment to
the senior credit facility. The terms of the senior credit facility are expected
to require strict compliance with numerous affirmative, negative and financial
covenants. Amounts borrowed under the senior credit facility may be used to fund
working capital and general corporate purposes, including acquisitions, subject
to First Union National Bank's approval in the case of certain acquisitions. See
"Description of Senior Credit Facility."
Under the terms of three of its purchase agreements, Global may be required
to make payments of up to $3.8 million over the next one to three years to
certain former owners of the businesses it has acquired based on the
profitability of those businesses during such time period.
For the nine months ended December 31, 1998 the net cash provided by
operations was $7.3 million and for the nine months ended December 31, 1997
the net cash provided by operations was $2.1 million. For the nine months
ended December 31, 1998 and for the nine months ended December 31, 1997
Global's net cash used in investing activities was $84.7 million and $65.0
million, respectively, primarily for the purchase of businesses. For the nine
months ended December 31, 1998 and the nine months ended December 31, 1997,
Global's net cash provided by financing activities was $77.2 million and $65.7
million, respectively. Net cash provided by financing activities consists of
equity capital provided by the initial public offering, Golder, Thoma,
Cressey, Rauner Fund IV, L.P., Jackson National Life Insurance Company, First
Union National Bank, and certain members of management of Global and its
acquired businesses, and net borrowings.
Year 2000 Issues
With the exception of historical information such as Global's costs and
efforts to date relating to year 2000 issues, the discussion in this section
consists of forward-looking statements that involve risks and uncertainties.
Global's success in addressing year 2000 issues, and the impact of year 2000
issues on Global's business, results of operations or financial condition,
could differ materially from the description that follows. Factors that could
cause or contribute to such differences include, but are not limited to, those
discussed below.
In 1998, Global began formulating a plan to address risks associated with
the "year 2000 issue," which relates to the possible inability of computer
systems and equipment to function properly as a result of their inability to
recognize or process dates occurring after 1999. Global's year 2000 plan
addresses the following areas: (1) information technology systems, or IT
systems, used in Global's internal operations, including accounting, data
processing and telephone systems, (2) non-IT systems used in Global's internal
operations, including alarm systems and fax machines, (3) the state and impact
of year 2000 readiness of products sold by Global (which Global primarily
purchases from third party vendors) and (4) certain operational systems of
Global's critical suppliers and customers that may affect Global. As discussed
below, Global's year 2000 plan involves identifying and assessing the
potential year 2000 risks faced by Global; remediating any year 2000
noncompliance identified by Global's assessment; testing the year 2000
readiness of Global's systems; and planning for year 2000 contingencies.
State of Year 2000 Readiness
Global is reviewing its overall exposure to year 2000 risks. Global's plan
to address the impact of the year 2000 issue on its IT and non-IT systems
involves (1) making an inventory of potentially date sensitive devices and
software, (2) assessing the systems affected by these devices and software,
(3) remediating or replacing these systems as necessary and (4) testing its
systems to confirm year 2000 readiness. Both IT and non-IT systems contain
embedded technology, which complicates Global's year 2000 assessment and
remediation efforts.
Global estimates that it has completed approximately 60% (in terms of time
spent) of the inventory and assessment phases of this process, and expects to
complete these phases by the end of March 1999. Global plans to begin the
remediation phase as its assessments reveal a need to remediate or replace its
systems. Although Global does not yet know how extensive its remediation
efforts will need to be, Global began remediating its systems in November 1998
and expects to complete this phase by May 1999. Global began the testing phase
of its year 2000 plan in January 1999 and expects to complete testing by July
1999. The expected timing of these phases is based on management's best
estimates, which were derived using numerous assumptions regarding future
events, including the results of Global's year 2000 assessment, the continued
availability of certain resources and the implementation and success of third
party remediation plans. There can be no assurance that these estimates will
prove to be accurate, and actual results could differ materially as a result
of many factors, including Global's ability to identify, assess, remediate and
test all relevant systems and technology embedded in those systems.
To the extent that Global has completed its year 2000 assessment of its IT
systems, Global's assessment has not revealed substantial year 2000
noncompliance. Specifically, for most of Global's functions, Global utilizes
Optimizing Management Decisions ("OMD") software. The OMD Corporation has
stated that final year 2000 modifications to OMD software will be released
during the first quarter of 1999. Global uses nationally known software
providers for both its general accounting and industry-specific systems and
has been assured by the manufacturers or vendors of such products that these
applications will be year 2000 compliant by July 1999. Global's assessment of
its non-IT systems is still at a preliminary stage.
The risk to Global's business, results of operations or financial condition
that third parties and their products will not be year 2000 ready is difficult
to quantify, but could potentially be significant. Global is in the early
stages of assessing the risks it faces from year 2000 noncompliance of the
products Global sells (which are, for the most part, manufactured by third
parties), as well as risks associated with year 2000 unreadiness of its
critical suppliers and customers. Global has sent questionnaires to its
critical suppliers and customers to determine their year 2000 readiness, and
is reviewing responses received to date to assess the impact of the year 2000
readiness of Global's suppliers and customers.
Global derives a majority of its revenues from the sale of equipment and
from service and supply contracts for such equipment. Accordingly, Global's
success depends on its access to reliable sources of equipment, parts and
supplies at competitive prices. If year 2000 issues impair the ability of
Global's suppliers to provide products timely and at competitive prices,
Global's business, results of operations and financial condition could be
materially and adversely affected. Global does not rely upon any one customer
for the majority of its sales, or one product vendor for the bulk of its
purchases. No individual supplier represents more than 20% of equipment
purchases and Global's top ten customers combined represent less than 8% of
Global's total sales for the nine month period ending December 31, 1998. Global
believes that its large customer base will minimize the effect on Global of any
year 2000 business disruption experienced by any of its customers.
Costs to Address Year 2000 Issue
Global has not incurred material historical costs associated with year 2000
remediation. Global operates most of its systems on third party software that
it believes or has been informed is already year 2000 compliant. Global
estimates its costs of remediation will be approximately $500,000, and does
not expect these costs to be material in any year to Global's consolidated
financial condition, results of operations or cash flows. All modification
costs relating to the year 2000 issue are expensed as incurred and are
expected to be paid for out of internally generated funds.
Global's estimate of remediation costs is based on numerous assumptions
regarding future events, including the results of Global's year 2000
assessment, continued availability of certain resources and the implementation
and success of third party remediation plans. There can be no assurance that
this estimate will prove to be accurate, and actual costs could differ
materially as a result of many factors, including those discussed in this
section.
Risks Related to the Year 2000 Issue
In evaluating year 2000 risks to Global, Global has identified and evaluated
five mission-critical aspects of the business: sales, billing, service,
delivery and accounting information systems. Should any of these functions
fail due to year 2000 issues, a material disruption in business could result.
Sales: Should Global's telecommunications system fail as a result of year
2000 issues, Global's sales could be adversely affected. Global is currently
in the process of confirming year 2000 compliance by its third party
telecommunications providers. Global believes its sales division could remain
fully operational if it experienced a disruption in telecommunications
service. Although Global expects confirmation of year 2000 compliance from its
third party telecommunications providers, Global is preparing a contingency
plan to continue sales operations without telecommunication support.
Billing: Global is dependent upon computerized billing systems. A breakdown
in IT billing systems could result in delayed or missed customer payments. By
March 1999, Global expects to have completed the inventory and assessment of
all potentially affected IT systems. Based upon the level of impairment,
duplicate manual billing systems will be set in place to facilitate
uninterrupted service where Global anticipates a possible problem.
Service: Global utilizes a combination of manual and computerized service
dispatch systems. A disruption in Global's computerized dispatch system could
result in delayed customer service. By March 1999, Global will have completed
the inventory and assessment of all potentially affected IT systems. Based
upon the level of impairments, duplicate dispatch systems will be set in place
to facilitate uninterrupted service with regard to the uncertain systems.
Delivery: Global is heavily dependent upon timely delivery of products from
its product vendors as well as delivery to its customers. Any disruption in
product supply could result in low customer service and ultimately lost sales.
Global is making every effort to ensure its suppliers and delivery channels
are adequately prepared to transition to the year 2000. If Global determines
there is a likely possibility of untimely deliveries by its suppliers, it will
take appropriate steps to increase inventory of the affected products.
Accounting Information Systems: The majority of Global's accounting
information systems are computerized and susceptible to year 2000 problems.
Failure to convert all affected systems could result in delayed or lost
financial data. Global is evaluating these systems and expects to make
remediations to affected systems by the first quarter of 1999.
Liability or Litigation Relating to Year 2000 Issues
In addition to the risk of failure of a function critical to Global's
operations, Global faces risks that are difficult to quantify relating to
potential liability resulting from the year 2000 issue. The breadth of
different products and services offered by Global and uncertainty relating to
the meaning of the term "year 2000 compliant" could result in Global facing
claims arising from the effect of the year 2000 issue on the products it sells
and services. The year 2000 readiness of the products Global sells depends on
the implementation and success of efforts by the suppliers from whom Global
purchases these products in making them year 2000 compliant. Global has begun
the process of evaluating the risks it faces from such noncompliance, and
expects to complete its assessment by the end of the first quarter of 1999.
Global cannot currently estimate the risks it faces from such potential
liability or litigation.
Although Global's year 2000 efforts and the contingency plans described
above are intended to minimize the adverse effects of the year 2000 issue on
Global's business and operations, the actual effects of the issue and the
success or failure of Global's efforts described above cannot be known until
the year 2000. Failure by Global, major suppliers of computer systems and
equipment used in Global's operations, and major vendors and customers of
products or services sold by Global to address adequately their respective
year 2000 issues in a timely manner could have a material adverse effect on
Global's business, results of operations and financial condition.
Contingency Plans
Global is in the process of forming contingency plans to address the year
2000 issue, and expects this planning stage to continue to be an active
process through 1999. As Global's identification and evaluation of the risks
it faces progresses, Global will develop plans to handle these scenarios.
Global expects to continually revise its contingency planning as it receives
information regarding third party year 2000 readiness, and as it integrates
future acquisitions.
PART II - OTHER INFORMATION
ITEM 2. Changes in Securities and Use of Proceeds.
(c) On December 21, 1998, the company issued 612,455 shares of Common Stock
to certain stockholders of Capitol Office Solutions, Inc. ("Capitol") as payment
for twenty percent of the outstanding stock of Capitol. The offer and sale of
the Company's Common Stock was made to accredited investors and was exempt from
registration under the Securities Act of 1933 as amended pursuant to Rule 506
thereunder.
On December 22, 1998, the Company issued 63,471 shares of Common Stock to
certain stockholders of Distinctive Business Products, Inc. ("Distinctive") as
payment for seven percent of the outstanding stock of Distinctive. The offer and
sale of the Company's Common Stock was made to accredited investors and was
exempt from registration pursuant to Rule 506.
ITEM 6. Exhibits and Reports on Form 8-K.
13
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(a) Exhibits
<TABLE>
<CAPTION>
Number Exhibit
- -------- -------
<C> <S>
*3.1 Amended and Restated Certificate of Incorporation
*3.2 Amended and Restated Bylaws
*4.1 Specimen Common Stock Certificate
10.1 Stock Purchase Agreement, dated as of December 22, 1998, by and among Global as Buyer,
Distinctive Business Products, Inc., and the shareholders thereof, as Sellers.
**10.2 Stock Purchase Agreement, dated as of November 19, 1998, by and among Global as Buyer,
Capital Office Solutions, Inc., and the other persons named therein, as Sellers.
***11.1 Statement of Computation of Per Share Earnings
27.1 Financial Data Schedule
</TABLE>
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-48103, which was declared effective by the Securities and
Exchange Commission on June 17, 1998.
** Incorporated by reference to the Registrant's Current Report on Form 8-K
filed with the SEC on January 5, 1999.
*** See Note 2 to the Notes to Consolidated Financial Statements.
(b) Reports on Form 8-K.
On January 5, 1999, the Company filed with the SEC a Current Report on Form 8-
K (the "Report") to report an acquisition of assets. Financial statements
relating to such acquisition have not yet been filed with the SEC, but will be
filed with an amendment to the Report no later than February 10, 1999.
14
<PAGE>
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Global Imaging Systems, Inc.
-----------------------------------------
(Registrant)
February 12, 1999 /s/ Raymond Schilling
- --------------------------------- -------------------------------------------
Date Raymond Schilling
Vice President, Chief Financial Officer,
Secretary, and Treasurer, (Duly Authorized
Officer and Principal Financial and
Accounting Officer)
15
<PAGE>
EXHIBIT INDEX
-------------
(Pursuant to item 601 of Regulation S-K)
<TABLE>
<CAPTION>
Number Exhibit
- ------ -------
<C> <S>
*3.1 Amended and Restated Certificate of Incorporation
*3.2 Amended and Restated Bylaws
*4.1 Specimen Common Stock Certificate
10.1 Stock Purchase Agreement, dated as of December 22, 1998, by and among Global as Buyer,
Distinctive Business Products, Inc., and the shareholders thereof, as Sellers.
**10.2 Stock Purchase Agreement, dated as of November 19, 1998, by and among Global as Buyer,
Capital Office Solutions, Inc., and the other persons named therein, as Sellers.
***11.1 Statement of Computation of Per Share Earnings
27.1 Financial Data Schedule
</TABLE>
* Incorporated by reference to the Registrant's Registration Statement on
Form S-1, No. 333-48103, which was declared effective by the Securities and
Exchange Commission on June 17, 1998.
** Incorporated by reference to the Registrant's Current Report on Form 8-K
filed with the SEC on January 5, 1999.
*** See Note 2 to the Notes to Consolidated Financial Statements.
16
<PAGE>
Exhibit 10.1
STOCK PURCHASE AGREEMENT
Dated as of December 22, 1998
By and Among
GLOBAL IMAGING SYSTEMS, INC.
("Buyer"),
DISTINCTIVE BUSINESS PRODUCTS, INC.
(the "Company")
and
THE SHAREHOLDERS OF THE COMPANY
(collectively, the "Sellers ")
<PAGE>
TABLE OF CONTENTS
<TABLE>
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<S> <C>
Page
ARTICLE I DEFINITIONS...............................................................................1
1.1 Definitions................................................................................1
ARTICLE II AGREEMENT OF PURCHASE AND SALE; CLOSING.................................................6
2.1 Agreement to Sell and Purchase.............................................................6
2.2 Purchase Price.............................................................................6
2.3 Payment of Purchase Price..................................................................6
2.4 Closing....................................................................................7
2.5 Intentionally Left Blank]..................................................................7
2.5 Intentionally Left Blank]..................................................................7
2.7 Closing Review.............................................................................7
2.8 Post-Closing Purchase Price Adjustment.....................................................8
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE
COMPANY AND THE SELLERS........................................................................8
3.1 Capitalization.............................................................................8
3.2 No Liens on Shares.........................................................................8
3.3 Other Rights to Acquire Capital Stock......................................................9
3.4 Due Organization...........................................................................9
3.5 Subsidiaries...............................................................................9
3.6 Due Authorization..........................................................................9
3.7 Financial Statements.......................................................................10
3.8 Certain Actions............................................................................10
3.9 Properties.................................................................................11
3.10 Licenses and Permits......................................................................12
3.11 Intellectual Property.....................................................................12
3.12 Compliance with Laws......................................................................12
3.13 Insurance.................................................................................13
3.14 Employee Benefit Plans....................................................................13
(a) Employee Welfare Benefit Plans....................................................13
(b) Employee Pension Benefit Plans....................................................13
(c) Employment and Non-Tax Qualified Deferred
Compensation Arrangements.......................................................14
3.15 Contracts and Agreements..................................................................14
3.16 Claims and Proceedings....................................................................15
3.17 Taxes.....................................................................................15
3.18 Personnel.................................................................................16
3.19 Business Relations........................................................................17
3.20 Accounts Receivable.......................................................................17
3.21 Bank Accounts.............................................................................17
</TABLE>
ii
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<TABLE>
<S> <C>
3.22 Warranties................................................................................18
3.23 Brokers...................................................................................18
3.24 Interest in Competitors, Suppliers, Customers, Etc........................................18
3.25 Indebtedness To and From Officers, Directors, Shareholders,
and Employees...........................................................................18
3.26 [Intentionally Left Blank.................................................................18
3.27 Information Furnished.....................................................................18
ARTICLE IV BUYER'S REPRESENTATIONS AND WARRANTIES....................................................19
4.1 Due Organization...........................................................................19
4.2 Due Authorization..........................................................................19
4.3 No Brokers.................................................................................20
4.4 Investment.................................................................................20
4.5 Information Furnished......................................................................20
ARTICLE V INTENTIONALLY LEFT BLANK..................................................................20
ARTICLE VI POST-CLOSING.............................................................................20
6.1 General....................................................................................20
6.2 Transition.................................................................................20
6.3 Confidentiality............................................................................21
6.4 Covenant Not to Compete....................................................................21
6.5 Additional Matters.........................................................................22
ARTICLE VII CONDITIONS TO OBLIGATION OF PARTIES TO
CONSUMMATE CLOSING.............................................................................23
7.1 Conditions to Buyer's Obligations..........................................................23
(a) Covenants, Representations and Warranties.........................................23
(b) Consents..........................................................................24
(c) Suppliers/Leases..................................................................24
(d) Discharge of Indebtedness and Lien................................................24
(g) Documents to be Delivered by the Sellers and the
Company......................................................................24
(i) Opinion of the Sellers' Counsel...........................................24
(ii) Certificates.............................................................24
(iii) Release.................................................................24
(iv) Escrow Agreement.........................................................25
(v) Executive Agreements......................................................25
(vi) Building Leases..........................................................25
(vii) Global Stock Agreement..................................................25
(viii) Personal Vehicles......................................................25
(ix) Sellers Receivables......................................................25
(x) Stock Certificates........................................................25
(xi) Resignations.............................................................25
</TABLE>
-iii-
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<TABLE>
<S> <C>
7.2 Conditions to the Sellers' and the Company's Obligations...................................25
(a) Covenants, Representations and Warranties.........................................26
(b) Consents..........................................................................26
(c) Documents to be Delivered by Buyer................................................26
(i) Certificates..............................................................26
(ii) Escrow Agreement.........................................................26
(iii) Executive Agreements....................................................26
(iv) Global Stock Agreement...................................................26
(d) Payment to the Sellers and the Company and the Escrow
Agent..........................................................................26
ARTICLE VIII INDEMNIFICATION.......................................................................27
8.1 Indemnification of Buyer...................................................................27
8.2 Indemnification of the Sellers.............................................................27
8.3 Sellers' Defense of Claims.................................................................27
8.4 Buyer's Defense of Claims..................................................................28
8.5 Escrow Claim...............................................................................28
8.6 Tax Audits, Etc............................................................................28
8.7 Limits on Sellers' Indemnification.........................................................29
8.8 Limits on Buyers' Indemnification..........................................................30
ARTICLE IX MISCELLANEOUS...........................................................................30
9.1 Modifications..............................................................................30
9.2 Notices....................................................................................30
9.3 Counterparts; Facsimile Transmission.......................................................32
9.4 Expenses...................................................................................32
9.5 Binding Effect; Assignment.................................................................33
9.6 Entire and Sole Agreement..................................................................33
9.7 Governing Law..............................................................................33
9.8 Survival of Representations, Warranties and Covenants......................................33
9.9 Invalid Provisions.........................................................................33
9.10 Public Announcements......................................................................34
9.11 Remedies Cumulative.......................................................................34
9.12 Waiver....................................................................................34
9.13 Dispute Resolution........................................................................34
</TABLE>
-iv-
<PAGE>
LIST OF EXHIBITS
Exhibit A Form of Escrow Agreement
Exhibit B Form of Landlord Agreement
Exhibit C Opinion of the Company's and the Sellers' Counsel
Exhibit D Company's Secretary's Certificate
Exhibit E Form of Release
Exhibit F Cosich Executive Agreement
Exhibit G Buyer's Secretary's Certificate
Exhibit H Global Stock Agreement
Exhibit I Form of Promissory Notes
LIST OF SCHEDULES
Schedule 1.1A Certain Permitted Encumbrances
Schedule 1.1B Funded Indebtedness and Permitted Funded Indebtedness
Schedule 2.8 Working Capital Adjustment Payments
Schedule 3.6 Consents Required for Sale of Shares to Buyer
Schedule 3.7 Exceptions to Financial Statements
Schedule 3.8A Certain Actions
Schedule 3.8B Certain Changes
Schedule 3.9 Properties
Schedule 3.10 Licenses and Permits
Schedule 3.11 Intellectual Property
Schedule 3.12 Compliance with Laws
Schedule 3.13 Insurance Policies
Schedule 3.14 Employee Benefit Plans
Schedule 3.15 Certain Contracts
Schedule 3.16 Claims and Proceedings
Schedule 3.18 Personnel
Schedule 3.19 Business Relations;Customers and Suppliers
Schedule 3.21 Bank Accounts
Schedule 3.25 Indebtedness To and From Officers, Directors, Shareholders,
and Employees
ANNEX A Closing Working Capital Calculation
-v-
<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (the "Agreement") is dated as of
December 22, 1998 and is effective as of December 1, 1998 by and among GLOBAL
IMAGING SYSTEMS, INC., a Delaware corporation ("Buyer"), DISTINCTIVE BUSINESS
PRODUCTS, INC., an Illinois corporation (the "Company") and John R. Cosich
("Cosich") and C. Joseph Mokszycki ("Mokszycki") (Cosich and Mokszycki are
individually referred to as a "Seller" and collectively referred to as the
"Sellers ").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the distribution, sale and service
of copiers, fax machines and other office equipment in parts of the States of
Illinois and Indiana (the "Business"); and
WHEREAS, the Sellers own all of the issued and outstanding shares of
capital stock of the Company (the "Shares"); and
WHEREAS, Buyer desires to purchase from the Sellers and the Sellers
desire to sell to Buyer: all of the Shares on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto warrant, represent, covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In this Agreement, the following terms have the meanings
-----------
specified or referred to in this Section 1.1 and shall be equally applicable to
-----------
both the singular and plural forms. Any agreement referred to below shall mean
such agreement as amended, supplemented and modified from time to time to the
extent permitted by the applicable provisions thereof and by this Agreement.
"Adjusted Working Capital" shall mean the difference between the
Company's current assets (excluding amounts due from shareholders) and the
Company's current liabilities (other than the Cosich Children's Trusts - Capital
Account Balance due in the amount of $788,000) as calculated in accordance with
GAAP (except for as reflected in the Closing Balance, or if either Seller has
disputed any item(s) in the Closing Balance Sheet, in the Final Determination).
<PAGE>
"Adjusted Working Capital Target" shall mean {$94,439), less any Cash
Shortfall as per the Closing Working Capital Calculation attached as Annex A
-------
hereto.
"Affiliate" means, with respect to any Person, any other Person which
directly or indirectly controls, is controlled by or is under common control
with such Person.
"Business" has the meaning specified in the first recital of the
Agreement
"Business Day" means any day in which the NASDAQ National Market
System is open for trading in the United States of America.
"Buyer" has the meaning specified in the first paragraph of this
Agreement.
"Buyer Documents" has the meaning specified in Section 4.2.
-----------
"Buyer Indemnifiable Costs" has the meaning specified in Section 8.1.
-----------
"Buyer Indemnified Parties" has the meaning specified in Section 8.1.
-----------
"Cash Shortfall" means the difference, if any, between $100,000 and
the Company's cash on the Closing Date as reflected on the Closing Balance Sheet
or, if either Seller has disputed any item(s) on the Closing Balance Sheet, in
the Final Determination; provided, however, that in the event that the Company's
cash on the Closing Date as reflected on the Closing Balance Sheet or, if either
Seller has disputed any item(s) on the Closing Balance Sheet, in the Final
Determination is at least $100,000, there shall be no "Cash Shortfall."
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act, 42 U.S.C. (S)(S) 9601 et seq., any amendments thereto, any
-- ---
successor statutes, and any regulations promulgated thereunder.
"Closing" means the closing of the transfer of the Shares from the
Sellers to Buyer.
"Closing Balance Sheet" has the meaning specified in Section 2.7.
-----------
"Closing Date" has the meaning specified in Section 2.4.
-----------
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning specified in the first paragraph of this
Agreement.
"Company Stock" means the common stock, no par value, of the Company.
-2-
<PAGE>
"Confidential Information" means all (a) confidential information and
trade secrets of the Company: including, without limitation, any of the same
comprising the identity, lists or descriptions of any customers, referral
sources or organizations; (b) financial statements, cost reports or other
financial information; (c) contract proposals, or bidding information; (d)
business plans and training and operations methods and manuals; (e) personnel
records; (f) information concerning fee structures; and (g) management systems,
policies or procedures, including related forms and manuals. Confidential
Information shall not include any information (i) which is disclosed pursuant to
subpoena or other legal process, (ii) which has been publicly disclosed, (iii)
which subsequently becomes known to a third party not subject to a
confidentiality agreement with the Buyer or the Company, or (iv) which is
subsequently disclosed by any third party not in breach of a confidentiality
agreement with Buyer or the Company.
"Contracts" has the meaning specified in Section 3.15.
------------
"Cosich" has the meaning specified in the first paragraph of this
Agreement.
"Court Order" means any judgment, order, award or decree of any
foreign, federal, state, local or other court or tribunal and any award in any
arbitration proceeding.
"Effective Date" has the meaning specified in Section 2.4.
-----------
"Encumbrance" means any lien, claim, charge, security interest,
mortgage, pledge, easement, conditional sale or other title retention agreement,
defect in title, restrictive covenant or other restrictions of any kind.
"Environmental Obligations" has the meaning specified in Section 3.12.
------------
"Equitable Exceptions" has the meaning specified in Section 3.6.
-----------
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Escrow Agent" means Chicago Title & Trust Company.
"Escrow Agreement" means the Escrow Agreement dated as of the Closing
Date by and among the Sellers, Buyer and the Escrow Agent in substantially the
same form as Exhibit A.
---------
"Escrow Period" means the period commencing on the Closing Date and
ending on the first anniversary of the Closing Date.
"Escrow Fund" means the deliveries made to the Escrow Agent pursuant
to the Escrow Agreement as specified in Sections 2.3(b) and (c).
--------------- ---
-3-
<PAGE>
"Executive Agreement" means the executive agreement dated as of the
Closing Date by and among Cosich, the Company and Buyer in the form of Exhibit
-------
F.
"Final Determination" has the meaning specified in Section 2.7.
-----------
"Financial Statements" has the meaning specified in Section 3.7.
-----------
"Funded Indebtedness" means all (i) indebtedness of the Company for
borrowed money or other interest-bearing indebtedness; (ii) capital lease
obligations of the Company which are accrued or required to be accrued under
GAAP; (iii) obligations of the Company to pay the deferred purchase or
acquisition price for goods or services, other than trade accounts payable or
accrued expenses in the ordinary course of business on no more than 120 day
payment terms; (iv) indebtedness of others guaranteed by the Company or secured
by an Encumbrance on any of the Company's assets; (v) indebtedness of the
Company under extended credit terms of more than 30 days from manufacturers
provided to the Company; or (vi) any receivables owed by the Company to the
Sellers.
"GAAP" shall mean generally accepted accounting principles, as
consistently applied by the Company.
"Global Stock" means the common stock, par value $.01 per share of
Buyer.
"Global Stock Agreement" means the Global Stock Agreement dated as of
the Closing Date between Buyer and Sellers.
"Governmental Body" means any foreign, federal, state, local or other
governmental authority or regulatory body.
"Governmental Permits" has the meaning specified in Section 3.10.
------------
"IRS" means the Internal Revenue Service.
"Independent Accountants" has the meaning specified in Section 2.7.
-----------
"Intellectual Property" has the meaning specified in Section 3.11.
------------
"Key Employee" has the meaning specified in Section 3.18.
------------
"Knowledge of the Company and Sellers" has the meaning specified in
Section 3.6.
- -----------
"Last Dispute Date" means the date which is thirty (30) days after the
Sellers have received the Closing Balance Sheet.
"Material Adverse Change" or "Material Adverse Effect" means a
material adverse change or effect on the assets, properties, Business,
operations, liabilities, or
-4-
<PAGE>
financial condition of the Company. In determining whether a "Material Adverse
Change" or "Material Adverse Effect" has occurred, the quantitative amounts set
forth at the end of Article III shall be conclusive.
-----------
"Mokszycki" has the meaning specified in the first paragraph of this
Agreement.
"OSHA" means the Occupational Safety and Health Act, 29 U.S.C. (S)(S)
651 et seq., any amendment thereto, and any regulations promulgated thereunder.
-- ---
"Permitted Exception" means (a) liens for Taxes and other governmental
charges and assessments which are not yet due and payable, (b) liens of
landlords and liens of carriers, warehousemen, mechanics and materialmen and
other like liens arising in the ordinary course of business for sums not yet due
and payable, (c) other liens or imperfections on property which are not material
in amount or do not materially detract from the value or the existing use of the
property affected by such lien or imperfection, and (d) Encumbrances listed or
referred to on Schedule 1.1-A.
--------------
"Permitted Funded Indebtedness" means the Funded Indebtedness listed
or referred to as "permitted" on Schedule 1.1-B.
--------------
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, limited liability company, trust,
unincorporated organization or Governmental Body.
"Preliminary Closing Balance Sheet" shall mean the Company's best
estimate of the Company's balance sheet as of the Effective Date. The
Preliminary Closing Balance Sheet shall be delivered to Buyer not less than
three (3) nor more than five (5) days prior to the Closing Date.
"Promissory Notes" means the promissory notes of Buyer referred to in
Sections 2.3(a) and (c) below in substantially the same form as Exhibit I.
- --------------- --- ---------
"Purchase Price" has the meaning specified in Section 2.2.
-----------
"RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C.
(S)(S) 6901 et seq., and any successor statute, and any regulations promulgated
-- ---
thereunder.
"Requirements of Laws" means any foreign, federal, state and local
laws, statutes, regulations, rules, codes or ordinances enacted, adopted, issued
or promulgated by any Governmental Body (including, without limitation, those
pertaining to electrical, building, zoning, environmental and occupational
safety and health requirements) or common law.
"Sellers" has the meaning set forth in the first paragraph of this
Agreement.
"Seller Documents" has the meaning specified in Section 3.6.
-----------
-5-
<PAGE>
"Seller Indemnifiable Costs" has the meaning specified in Section 8.2.
-----------
"Seller Indemnified Parties" has the meaning specified in Section 8.2.
-----------
"Shares" means all of the issued and outstanding shares of the capital
stock of the Company.
"Stock" has the meaning specified in Section 2.3(b).
--------------
"Tax" or "Taxes" means any federal, state, local or foreign income,
alternative or add-on minimum, gross income, gross receipts, windfall profits,
severance, property, production, sales, use, transfer, gains, license, excise,
employment, payroll, withholding or minimum tax, transfer, goods and services,
or any other tax, custom, duty, governmental fee or other like assessment or
charge of any kind whatsoever, together with any interest or any penalty,
addition to tax or additional amount imposed thereon by any Governmental Body.
"Tax Return" means any return, report or similar statement required to
be filed with respect to any Taxes (including any attached schedules),
including, without limitation, any information return, claim for refund, amended
return and declaration of estimated Tax.
ARTICLE II
AGREEMENT OF PURCHASE AND SALE; CLOSING
2.1 Agreement to Sell and Purchase. Upon the basis of the
------------------------------
representations, warranties, covenants and agreements, for the consideration,
and subject to the terms and conditions set forth in this Agreement, the Sellers
agree to sell the Shares to Buyer at the Closing and Buyer agrees to purchase
the Shares from the Sellers at the Closing.
2.2 Purchase Price. The total potential purchase price for the Shares
--------------
(the "Purchase Price") shall be equal to $16,212,000 ($8,337,000 to Cosich and
$7,875,000 to Mokszycki), subject to any adjustment required to be made pursuant
to Section 2.6 or Section 2.8 below.
----------- -----------
2.3 Payment of Purchase Price. The Purchase Price shall be payable by
-------------------------
Buyer at the Closing as follows:
(a) $14,512,000 of the Purchase Price, as adjusted in accordance
with Section 2.6 below, will be paid by Buyer at the Closing in the form
-----------
of Promissory Notes of Buyer for a total of $14,512,000 due on January
5, 1999 and bearing interest from the Closing Date until due at a rate
of 6% per annum and, if not paid when due, thereafter until paid at a
rate of 17% per annum (one Promissory Note for $7,412,000 for Cosich and
one Promissory Note for $7,100,000 for Mokszycki) and delivered to the
Sellers;
-6-
<PAGE>
(b) $1,200,000 of the Purchase Price shall be paid by Buyer at the
Closing in the form of 63,471 shares of Global Stock (the "Stock")
(42,314 shares of Global Stock to Cosich and 21,157 shares of Global
Stock to Mokszycki) and delivered to the Escrow Agent on or prior to
January 5, 1999 to be held and disbursed in accordance with the terms of
the Escrow Agreement;
(c) $500,000 of the Purchase Price will be paid by Buyer at the
Closing in the form of Promissory Notes of Buyer for a total of $500,000
due on January 5, 1999 and bearing interest from the Closing Date until
due at a rate of 6% per annum and, if not paid when due, thereafter
until paid at a rate of 17% per annum (one Promissory Note for $125,000
for Cosich and one Promissory Note for $375,000 for Mokszycki) and
delivered to the Escrow Agent to be held in escrow in accordance with
the terms of the Escrow Agreement.
2.4 Closing. The Closing of the purchase and sale of the Shares
-------
contemplated by this Agreement shall take place at the offices of Butler, Rubin,
Saltarelli & Boyd in Chicago, Illinois on December 22, 1998, or at such other
date and time as the parties shall agree (the "Closing Date"), effective as of
December 1, 1998 (the "Effective Date").
2.5 [Intentionally Left Blank].
--------------------------
2.6 [Intentionally Left Blank]
--------------------------
2.7 Closing Review. Within 120 days following the Closing Date, there
--------------
shall be delivered to the Sellers a balance sheet of the Company (the "Closing
Balance Sheet") of the Company at and as of the Closing Date together with
supporting schedules and work papers. The Closing Balance Sheet shall be
prepared in accordance with GAAP by Buyer, in accordance with the Closing
Working Capital Calculation attached as Annex A hereto. In the event that either
-------
Seller disputes any items on the Closing Balance Sheet prior to the Last Dispute
Date, the parties shall jointly select and retain an independent "Big Five"
accounting firm (the "Independent Accountants") to review the disputed item(s)
on the Closing Balance Sheet. The final determination of such disputed item(s)
by the Independent Accountants shall be binding on the parties for purposes of
determining Adjusted Working Capital and any Cash Shortfall as of the Closing
Date (the "Final Determination"). The cost of retaining the Independent
Accountants shall be borne, on a 50-50 basis, between the Buyer and the
Seller(s) initiating such dispute.
2.8 Post-Closing Purchase Price Adjustment. In the event that the
--------------------------------------
Adjusted Working Capital as reflected on the Closing Balance Sheet or, if either
Seller has disputed any item(s) in the Closing Balance Sheet, in the Final
Determination, is less than the Adjusted Working Capital Target, then the
Purchase Price will be adjusted downward, on a dollar-for-dollar basis, by the
amount by which the Adjusted Working Capital so reflected is less than the
Adjusted Working Capital Target. In the event that there is any Cash Shortfall
as reflected on the Closing Balance Sheet or, if either Seller has disputed any
item(s) in the Closing Balance Sheet, in the Final Determination, then the
Purchase Price will be adjusted
-7-
<PAGE>
downward, on a dollar-for-dollar basis, by the amount of the Cash Shortfall. Any
downward post closing adjustment payable by the Sellers to Buyer made in
accordance with this Section 2.8 shall be allocated and paid in accordance with
-----------
Schedule 2.8 hereto.
- ------------
2.9 Cosich Children's Trusts. On or prior to January 5, 1999, the
------------------------
Company shall pay to the Cosich Children's Trusts the sum of $788,000 in respect
of their Capital Account Balances Due, together with interest at the rate of 6%
per annum from the Closing Date until January 5, 1999 and, if not paid by
January 5, 1999, with interest at the rate of 17% per annum thereafter until
paid or, if less, the maximum rate permitted by law.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE SELLERS
The Company and the Sellers jointly and severally represent and warrant to
Buyer that:
3.1 Capitalization. The authorized capital stock of the Company
--------------
consists of 10,000 shares of Company Stock, 4,000 of which are issued and
outstanding. All of the Shares are duly authorized, validly issued, fully paid,
and nonassessable. All of the Shares are owned of record and beneficially by the
Sellers as follows: Cosich - 2,000 shares and Mokszycki - 2,000 shares. None of
the Shares was issued or will be transferred under this Agreement in violation
of any preemptive or preferential rights of any Person. The Sellers own all of
the issued and outstanding capital stock of the Company.
3.2 No Liens on Shares. The Sellers own the Shares, free and clear of
------------------
any Encumbrances other than the rights and obligations arising under this
Agreement, and none of the Shares is subject to any outstanding option, warrant,
call, or similar right of any other Person to acquire the same, and none of the
Shares is subject to any restriction on transfer thereof except for restrictions
imposed by applicable federal and state securities laws. At Closing, the Sellers
will have full power and authority to convey good and marketable title to the
Shares, free and clear of any Encumbrances.
3.3 Other Rights to Acquire Capital Stock. Except as set forth in this
-------------------------------------
Agreement, there are no authorized or outstanding warrants, options, or rights
of any kind to acquire from the Company any equity or debt securities of the
Company, or securities convertible into or exchangeable for equity or debt
securities of the Company, and there are no shares of capital stock of the
Company reserved for issuance for any purpose nor any contracts, commitments,
understandings or arrangements which require the Company to issue, sell or
deliver any additional shares of its capital stock.
3.4 Due Organization. The Company is a corporation duly organized,
----------------
validly existing, and in good standing under the laws of the State of Illinois
and has full corporate power and authority to carry on the Business as now
conducted. Complete and correct copies of the Articles of Incorporation and
Bylaws of the Company, and all
-8-
<PAGE>
amendments thereto, have been heretofore delivered to Buyer. The Company is
qualified to do business in the States of Illinois and Indiana, the only States
in which the nature of the Business or the ownership of its properties requires
such qualification and where the failure to be so qualified could reasonably be
expected to have a Material Adverse Effect.
3.5 Subsidiaries. The Company does not, directly or indirectly have
------------
any subsidiaries or any direct or indirect equity ownership interests in any
Person. The Sellers do not own any Person, other than the Company, engaged in
the Business.
3.6 Due Authorization. The Company and the Sellers each have full
-----------------
power and authority to execute, deliver and perform this Agreement and to carry
out the transactions contemplated hereby. The execution, delivery, and
performance of this Agreement, the Global Stock Agreement and the Escrow
Agreement (collectively, the "Seller Documents") have been duly and validly
authorized by all necessary corporate action of the Company. The Seller
Documents have been duly and validly executed and delivered by the Company
and/or the Sellers, as the case may be, and constitute valid and binding
obligations of the Company and/or the Sellers, as the case may be, enforceable
in accordance with their terms, except to the extent that enforceability may be
limited by (i) laws affecting creditors' rights and debtors' obligations
generally and (ii) legal limitations relating to remedies of specific
performance and injunctive and other forms of equitable relief (the "Equitable
Exceptions"). Except for the Equitable Exceptions and assuming all consents to
the consummation of the transactions contemplated hereby set forth on Schedule
--------
3.6 are obtained, the execution, delivery, and performance of the Seller
- ---
Documents by the Company and/or the Sellers, as the case may be: do not (a) to
the knowledge of the Company's directors and officers and the Sellers
("Knowledge of the Company and the Sellers") violate any Requirements of Laws or
any Court Order of any Governmental Body applicable to the Company or the
Sellers, or their respective property, (b) violate or conflict with, or permit
the cancellation of, or constitute a default under, any material agreement to
which the Company or the Sellers are a party, or to the Knowledge of the Company
and the Sellers by which any of them or any of their respective property is
bound, (c) permit the acceleration of the maturity of any material indebtedness
of, or material indebtedness secured by the property of, the Company or the
Sellers, or (d) violate or conflict with any provision of the articles of
incorporation or bylaws of the Company. No representation or warranty is made by
Sellers or the Company with respect to the Executive Agreement.
3.7 Financial Statements. The following Financial Statements
--------------------
(collectively the "Financial Statements") of the Company have been delivered to
Buyer by the Company: balance sheets of the Company as of December 31, 1996,
December 31, 1997 and November 30, 1998, and statements of income of the Company
for the fiscal years ending December, 1996 and December 31, 1997 and for the
eleven month period ending November 30, 1998. Except as disclosed on Schedule
--------
3.7, the Financial Statements have been prepared in accordance with GAAP
- ---
throughout the periods indicated and fairly present in all material respects the
financial position, results of operations and changes in financial position of
the Company as of the indicated dates and for the indicated periods, subject (in
the case of the November 30, 1998 Financial Statements) to year end accruals
made in the ordinary course of
-9-
<PAGE>
the Business which are consistent with past practices. Except to the extent
reflected or provided for in the November 30, 1998 Financial Statements and
obligations and liabilities incurred in the ordinary course of business since
November 30, 1998. Except as disclosed on Schedule 3.7, the Company has no
------------
Material liabilities required by GAAP to be reflected on the Company's balance
sheet (whether absolute, accrued, contingent or otherwise), except such
liabilities which are accrued or reserved against in the November 30, 1998
Financial Statements, including without limitation any accounts payable or
service liabilities of the Company incurred prior to the Closing Date, other
than liabilities incurred in the ordinary course of the Business since November
30, 1998. Except as disclosed on Schedule 3.8A and except as disclosed in the
-------------
Company's November 30, 1998 Balance Sheet, since December 31, 1997, there has
been no Material Adverse Change in the financial condition or results of
operations of the Company or, to the Knowledge of the Company and Sellers, the
future prospects of the Company.
3.8 Certain Actions. Since December 31, 1997, the Company has not,
---------------
except as disclosed on Schedule 3.8A hereto or any of the Financial Statements:
-------------
(a) discharged or satisfied any Material Encumbrance or paid any Material
obligation or liability, absolute or contingent, other than in the ordinary
course of the Business; (b) paid or declared any dividends or distributions, or
purchased, redeemed, acquired, or retired any stock or indebtedness from any
stockholder (other than distributions to pay estimated income taxes of the
Sellers associated with the income of the Company); (c) made or agreed to make
any loans or advances or guaranteed or agreed to guarantee any loans or advances
to any party whatsoever except for employee loans and advances in the ordinary
course of the Business consistent with past practices; (d) suffered or permitted
any Material Encumbrance other than Permitted Exceptions to arise or be granted
or created against or upon any of its assets, real or personal, tangible or
intangible; (e) canceled, waived, or released or agreed to cancel, waive, or
release any of its receivables, rights, or claims against third parties in
excess of $15,000 individually or $50,000 in the aggregate; (f) sold, assigned,
pledged, mortgaged, or otherwise transferred, or suffered any Material damage,
destruction, or loss (whether or not covered by insurance) to, any Material
assets (except in the ordinary course of the Business); (g) amended its charter
or bylaws in any way materially adverse to Buyer; (h) paid or made a commitment
to pay any severance or termination payment to any employee or consultant that
would in the aggregate be Material following the Closing Date; (i) made any
material change in its method of management or operation or method of
accounting; (j) made any capital expenditures that in the aggregate are
Material, or entered into commitments therefor; (k) made any investment or
commitment therefor in any Person; (l) made any payment or contracted for the
payment of any bonus or other compensation or personal expenses, other than (i)
wages and salaries and business expenses paid in the ordinary course of the
Business, and (ii) wage and salary adjustments made in the ordinary course of
the Business for employees who are not officers, directors, or shareholders of
the Company; (m) made, amended, or entered into any written employment contract
except in the ordinary course of the Business or created or made any material
change in any bonus, stock option, pension, retirement, profit sharing or other
employee benefit plan or arrangement; (n) materially amended or experienced a
termination of any material contract, agreement, lease, franchise or license to
which the Company is a party that would or could reasonably be expected to have
a Material Adverse Effect, except in the
-10-
<PAGE>
ordinary course of the Business; or (o) entered into any other material
transactions that would or could reasonably be expected to have a Material
Adverse Effect except in the ordinary course of the Business. Since December 31,
1997, except as disclosed on Schedule 3.8B hereto or any of the Financial
-------------
Statements or as contemplated by this Agreement, there has not been (a) any
Material Adverse Change with respect to the loss of any Material customers or
suppliers of the Company, or in any Material assets of the Company, (b) any
Material extraordinary contracts, commitments, orders or rebates outside of the
course of the Business, (c) any strike, material slowdown, or demand for
recognition by a labor organization by or with respect to any of the employees
of the Company, or (d) any shutdown, material slow-down, or cessation of any
material operations conducted by, or constituting part of, the Company, nor has
the Company agreed to do any of the foregoing.
3.9 Properties. Attached hereto as Schedule 3.9 are lists of each
---------- ------------
interest in real property (including, without limitation, leasehold interests)
and each item of personal property utilized by the Company in the conduct of the
Business having a book value in excess of $15,000 as of November 30, 1998.
Except for Permitted Exceptions or as expressly set forth on Schedule 3.9, such
------------
real and personal properties are free and clear of Encumbrances. All of the
properties and assets Material to and necessary for continued operation of the
Business as currently conducted (including, without limitation, books, records,
computers and computer software and data processing systems) are owned, leased
or licensed by the Company and are reasonably suitable for the purposes for
which they are currently being used. To the Knowledge of the Company and
Sellers, with the exception of used equipment and inventory valued at no more
than $10,000 in the aggregate on the Company's November 30, 1998 Financial
Statements, the physical properties of the Company, including the real
properties leased by the Company are in all material respects in good operating
condition and repair, normal wear and tear excepted, and are free from any
defects of a material nature. Except for Permitted Exceptions or as otherwise
set forth on Schedule 3.9, the Company has full and unrestricted legal and
------------
equitable title to the properties and assets that it owns. The operation of the
properties and Business of the Company in the manner in which they are now and
have been operated does not violate any zoning ordinances, municipal
regulations, or other Requirements of Laws, except for any such violations which
would not, individually or in the aggregate, have a Material Adverse Effect.
Except for Permitted Exceptions or as set forth on Schedule 3.9, to the
------------
Knowledge of the Company and Sellers, no restrictive covenants, easements,
rights-of-way, or regulations of record impair the uses of the properties of the
Company for the purposes for which they are now operated.
3.10 Licenses and Permits. Attached hereto as Schedule 3.10 is a list
-------------------- -------------
of all Material licenses, certificates, privileges, immunities, approvals,
franchises, authorizations and permits held or applied for by the Company from
any Governmental Body (herein collectively called "Governmental Permits") the
absence of which would individually or the in the aggregate have a Material
Adverse Effect. The Company has complied in all material respects with the terms
and conditions of all such Governmental Permits, and the Company has not
received notification from any Governmental Body of violation of any such
Governmental Permit or the Requirements of Laws governing the issuance or
continued validity thereof other than violations (if any) which would not
individually or in the aggregate have a Material
-11-
<PAGE>
Adverse Effect. To the Knowledge of the Company and Sellers, no Governmental
Permit in addition to those listed or referred to on Schedule 3.10, is required
-------------
from any Governmental Body thereof in connection with the conduct of the
Business which Governmental Permit, if not obtained, would have a Material
Adverse Effect.
3.11 Intellectual Property. Attached hereto as Schedule 3.11 is a list
--------------------- -------------
of all material patents, trademarks, tradenames, registered copyrights, licenses
or computer software (other than general commercial software) or applications
therefor owned by or registered in the name of the Company or in which the
Company has any rights, licenses, or immunities (collectively, the "Intellectual
Property"). The Company has furnished Buyer with copies of all license
agreements to which the Company is a party, either as licensor or licensee, with
respect to any Intellectual Property. Except as described on Schedule 3.11
-------------
hereto, the Company has good title to or the right to use such Intellectual
Property and all inventions, processes, designs, formulae, trade secrets and
know-how necessary for the conduct of their Business, as presently conducted
without the payment of any royalty or similar payment. The Company is not
materially infringing on any patent right, tradename, copyright or trademark
right or other Intellectual Property right of others, and there is no material
infringement by others of any such material rights owned by the Company.
3.12 Compliance with Laws. The Company has (i) complied in all
--------------------
material respects with all Requirements of Laws, Governmental Permits and Court
Orders applicable to the Business and has filed with the proper Governmental
Bodies all material statements and reports required by all Requirements of Laws,
Governmental Permits and Court Orders to which the Company or any of its
employees (because of their activities on behalf of the Company) are subject and
(ii) conducted the Business and is in compliance in all material respects with
all federal, state and local energy, public utility, health, safety and
environmental Requirements of Laws, Governmental Permits and Court Orders
including the Clean Air Act, the Clean Water Act, RCRA, the Safe Drinking Water
Act, CERCLA, OSHA, the Toxic Substances Control Act and any similar state, local
or foreign laws (collectively "Environmental Obligations") and all other
federal, state, local or foreign governmental and regulatory requirements,
except where any such failure to comply or file would not, in the aggregate,
have a Material Adverse Effect. Except as disclosed on Schedule 3.16, no claim
-------------
has been made in writing by any Governmental Body (and, to the Knowledge of the
Company and the Sellers, no such claim is anticipated) to the effect that the
Business currently fails to comply, in any material respect, with any
Requirements of Laws, Governmental Permit or Environmental Obligation or that a
Governmental Permit or Court Order is necessary in respect thereto.
3.13 Insurance. Attached hereto as Schedule 3.13 is a list of all
--------- -------------
insurance policies held by or applicable to the Company. To the extent
available, copies of the binder for all such insurance policies have been
delivered to Buyer. To the Knowledge of the Company and the Sellers, no event
relating to the Company has occurred which will result in (i) early cancellation
of any such insurance policy; (ii) a material retroactive upward adjustment of
premiums under any such insurance policies; or (iii) any material upward
adjustment in such premiums under any such insurance policy. To the Knowledge of
the
-12-
<PAGE>
Company and Sellers, all of such insurance policies will remain in full force
and effect following the Closing.
3.14 Employee Benefit Plans.
----------------------
(a) Employee Welfare Benefit Plans. Except as disclosed on Schedule
------------------------------ --------
3.14, the Company does not maintain or contribute to any "employee welfare
- -----
benefit plan" as such term is defined in Section 3(1) of ERISA. With respect to
each such plan, except as would not individually or in the aggregate have a
Material Adverse Effect: (i) the plan is in material compliance with ERISA; (ii)
the plan has been administered in accordance with its governing documents; (iii)
neither the plan, nor any fiduciary with respect to the plan, has engaged in any
"prohibited transaction" as defined in Section 406 of ERISA other than any
transaction subject to a statutory or administrative exemption; (iv) except for
the processing of routine claims in the ordinary course of administration, there
is no material litigation, arbitration or disputed claim outstanding; and (v)
all premiums due on any insurance contract through which the plan is funded have
been paid.
(b) Employee Pension Benefit Plans. Except as disclosed in Schedule
------------------------------ --------
3.14, the Company does not maintain or contribute to any arrangement that is or
- ----
may be an "employee pension benefit plan" relating to employees, as such term is
defined in Section 3(2) of ERISA. With respect to each such plan, except as
would not individually or in the aggregate have a Material Adverse Effect: (i)
the plan is qualified under Section 401(a) of the Code, and any trust through
which the plan is funded meets the requirements to be exempt from federal income
tax under Section 501(a) of the Code; (ii) the plan is in material compliance
with ERISA; (iii) the plan has been administered in accordance with its
governing documents as modified by applicable law; (iv) the plan has not
suffered an "accumulated funding deficiency" as defined in Section 412(a) of the
Code; (v) the plan has not engaged in, nor has any fiduciary with respect to the
plan engaged in, any "prohibited transaction" as defined in Section 406 of ERISA
or Section 4975 of the Code other than a transaction subject to statutory or
administrative exemption; (vi) the plan has not been subject to a "reportable
event" (as defined in Section 4043(b) of ERISA), the reporting of which has not
been waived by regulation of the Pension Benefit Guaranty Corporation; (vii) no
termination or partial termination of the plan has occurred within the meaning
of Section 411(d)(3) of the Code; (viii) all contributions required to be made
to the plan or under any applicable collective bargaining agreement have been
made to or on behalf of the plan; (ix) there is no material litigation,
arbitration or disputed claim outstanding; and (x) all applicable premiums due
to the Pension Benefit Guaranty Corporation for plan termination insurance have
been paid in full on a timely basis.
(c) Employment and Non-Tax Qualified Deferred Compensation
Arrangements. Except as disclosed in Schedule 3.14, the Company does not
-------------
maintain or contribute to any retirement or deferred or incentive compensation
or stock purchase, stock grant or stock option arrangement entered into between
the Company and any current or former officer, consultant, director or employee
of the Company that is not intended to be a tax qualified arrangement under
Section 401(a) of the Code.
-13-
<PAGE>
3.15 Contracts and Agreements. Attached hereto as Schedule 3.15 is a
------------------------ -------------
list and brief description of all written or oral contracts, commitments,
leases, and other agreements (including, without limitation, promissory notes,
loan agreements, and other evidences of indebtedness, guarantees, agreements
with distributors, suppliers, dealers, franchisors and customers, and service
agreements) to which the Company is a party or by which the Company or its
properties are bound pursuant to which the obligations thereunder of either
party thereto are, or are contemplated as being, for any one contract $50,000 or
greater (collectively, the "Contracts"), except purchase orders and other
contracts and commitments entered into in the ordinary course of the Business
with respect to the sale and purchase of inventory, supplies, products and
services. The Company is not and, to Knowledge of the Company and Sellers, no
other party thereto is in default (and no event has occurred which, with the
passage of time or the giving of notice, or both, would constitute a default by
the Company) under any of the Contracts, and the Company has not waived any
right under any of the Contracts, except for any such defaults or waivers, which
would not have a Material Adverse Effect. Except for the Equitable Exceptions,
all of the Contracts are legal, valid, binding, enforceable and in full force
and effect with respect to the Company and, to the knowledge of the Company and
Sellers, the other parties thereto, assuming all necessary consents to the
consummation of the transactions contemplated herein, as specifically set forth
on Schedules 3.9 and 3.15, are obtained, will remain legal, valid, binding,
------------- ----
enforceable and in full force and effect on essentially the same terms
immediately after the Closing, except to the extent that enforceability may be
limited by the Equitable Exceptions. Except as set forth in Schedule 3.15, the
-------------
Company has not guaranteed any material obligations of any other Person.
Subject to the matters disclosed on Schedule 3.8A, to the Knowledge of the
-------------
Company and the Sellers, no manufacturer of office equipment sold by the Company
(with sales by the Company from products distributed by such manufacturer of
more than $50,000 per annum) will cease doing business with the Company
immediately following the Closing.
3.16 Claims and Proceedings. Attached hereto as Schedule 3.16 is a
---------------------- -------------
list of all claims, actions, suits, proceedings, or investigations pending or,
to the Knowledge of the Company and Sellers, threatened against or affecting the
Company or any of its properties or assets, at law or in equity, or before or by
any court, municipality or other Governmental Body. To the Knowledge of the
Company and Sellers, except as set forth on Schedule 3.16, none of such claims,
-------------
actions, suits, proceedings, or investigations, if adversely determined, will
result in any Material liability or loss to the Company. To the Knowledge of
the Company and Sellers, the Company has not been and the Company is not now,
subject to any Court Order, stipulation, or consent of or with any court or
Governmental Body. No inquiry, action or proceeding has been instituted or, to
the Knowledge of the Company and Sellers, threatened or asserted against the
Sellers or the Company to restrain or prohibit the carrying out of the
transactions contemplated by this Agreement or to challenge the validity of such
transactions or any part thereof or seeking damages on account thereof.
3.17 Taxes. Except as disclosed on Schedule 3.17:
----- -------------
(a) All Federal, foreign, state, county and local income, gross
receipts, excise, property, franchise, license, sales, use, withholding and
other Taxes due from
-14-
<PAGE>
the Company on or before the Closing will have been paid and all Tax Returns
which are required to be filed by the Company on or before the Closing will have
been filed within the time and in the manner provided by law, and all such Tax
Returns are true and correct in all material respects and accurately reflect in
all material respects the Tax liabilities of the Company. No Tax Returns of the
Company are presently subject to an extension of the time to file. All Taxes,
assessments, penalties, and interest of the Company which have become due
pursuant to such Tax Returns or any assessments received have been paid or
adequately accrued on the Company's financial statements. The provisions for
Taxes reflected on the balance sheets contained in the Financial Statements are
adequate to cover all of the Company's Tax liabilities for the respective
periods then ended and all prior periods. The Company has not executed any
presently effective waiver or extension of any statute of limitations against
assessments and collection of Taxes, and there are no pending or, to the
Knowledge of the Company and Sellers, threatened claims, assessments, notices,
proposals to assess, deficiencies, or audits with respect to any such Taxes. For
Governmental Bodies with respect to which the Company does not file Tax Returns,
no such Governmental Body has given the Company written notification that the
Company is or may be subject to taxation by that Governmental Body. The Company
has withheld and paid all Taxes required to have been withheld and paid in
connection with amounts paid or owing to any employee, shareholder, creditor,
independent contractor or other party. There are no Tax liens on any of the
property or assets of the Company. The Company (and any predecessor of the
Company) has been a validly electing S corporation within the meanings of
Sections 1361 and 1362 of the Code at all times since the date of its
incorporation, and the Company will be an S corporation until and including the
Closing Date.
(b) Neither the Company nor any other corporation has filed an election
under Section 341(f) of the Code that is applicable to the Company or any assets
held by the Company. The Company has not made any payments, is not obligated to
make any payments, and is not a party to any agreement that under certain
circumstances could obligate it to make any payments that will not be deductible
under Section 280G of the Code. The Company has not been a United States real
property holding corporation within the meaning of Section 897(c)(2) of the Code
during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code.
The Company is not a party to any Tax allocation or sharing agreement. The
Company has not and has never been (nor does the Company have any liability for
unpaid Taxes because it once was) a member of an affiliated group during any
part of a return year any corporation other than the Company also was a member
of the affiliated group. No Seller (A) has been a member of an affiliated group,
as defined in Section 1504(a) of the Code, filing a consolidated federal income
Tax Return (other than a group the common parent of which was any Seller) and
(B) has any Liability for the Taxes of any Person under Treas. Reg. Section
1.1502-6 (or any similar provision of state, local, or foreign law), as a
transferee or successor, by contract or otherwise.
(c) The Company has not, in the past ten (10) years, (i) acquired
assets from another corporation in a transaction in which the Company's Tax
basis for the acquired assets was determined in whole or in part by reference to
the Tax basis of the
-15-
<PAGE>
acquired assets (or any other property) in the hands of the
transferor or (ii) acquired the stock of any other corporation that is a
qualified subchapter S subsidiary.
(d) The Company has not had at any time during the Company's existence
owned any subsidiaries (including any "qualified subchapter S subsidiaries"
within the meaning of Section 1361(b)(3)(13) of the Code).
3.18 Personnel. Attached hereto as Schedule 3.18 is a list of the names
--------- -------------
and compensation (through December 15, 1998) of the directors and executive
officers of the Company, and of the employees of the Company whose annual rates
of compensation during the fiscal year ended December 31, 1997 (including base
salary, bonus and incentive pay) exceed (or during the fiscal year ending
December 31, 1998 are expected to exceed) $60,000 (the "Key Employees").
Schedule 3.18 also lists the company automobile, club membership, and other like
- -------------
benefits, if any, paid or payable to the Key Employees in or for 1998. Since
June 30, 1998, the Company has not changed the employment compensation, benefits
or consulting payments to the Sellers, except as disclosed on Schedule 3.18
-------------
hereto. Schedule 3.18 also contains a brief description of all material terms of
-------------
employment agreements with officers and managers of the Company to which the
Company is a party and all severance benefits which any director, officer or
employee of the Company is or may be entitled to receive under any contract with
the Company. To the Knowledge of the Company and Sellers, the employee relations
of the Company are generally good and there is no pending or threatened labor
dispute or union organization campaign. To the Knowledge of the Company and
Sellers, none of the employees of the Company are represented by any labor union
or organization. Except as disclosed on Schedule 3.16, the Company is in
-------------
compliance in all material respects with all Requirements of Laws respecting
employment and employment practices, terms and conditions of employment, and
wages and hours, and are not engaged in any unfair labor practices. To the
Knowledge of the Company and Sellers, each of the Key Employees (other than
Mokszycki and, in the case of Cosich, subject to the provisions of the Executive
Agreement) intends to remain employed by the Company after the consummation of
the transactions contemplated hereby. There is no unfair labor practice claim
against the Company before the National Labor Relations Board, or any strike,
dispute, slowdown, or stoppage pending or, to the Knowledge of the Company and
the Sellers, threatened against or involving the Company, and none has occurred.
3.19 Business Relations. To the Knowledge of the Company and the
------------------
Sellers, except as disclosed on Schedule 3.19, no customer representing 1% or
-------------
more of the Company's revenues for the eleven months ended November 30, 1998 and
no supplier or vendor representing 1% or more of the Company's purchases for the
eleven months ended November 30, 1998 has advised the Company that it will cease
doing business with the Company or materially modify its manner of doing
business with the Company if Buyer acquires the Company. Neither the Sellers nor
the Company has received any notice of any material disruption (including
delayed deliveries or allocations by suppliers) in the availability of any
portion of the products used by the Company nor is the Company or the Sellers
aware of any facts which have lead them to believe that the Business will be
subject to any such material disruption.
-16-
<PAGE>
3.20 Accounts Receivable. All of the accounts, notes, and loans
-------------------
receivable that have been recorded on the books of the Company are bona fide and
represent amounts validly due for goods sold or services rendered and all such
amounts (net of any allowance for doubtful accounts, writeoffs or writedowns
reflected on the Company's books and records as of the Closing Date) will be
collected in full within 180 days following the Closing Date. Except for
Permitted Exceptions, (a) all of such accounts, notes, and loans receivable are
free and clear of any Encumbrances; (b) no claims of offset have been asserted
in writing against any of such accounts, notes, or loans receivable; and (c)
none of the obligors of such accounts, notes, or loans receivable has given
written notice that it will or may refuse to pay the full amount or any portion
thereof.
3.21 Bank Accounts. Attached hereto as Schedule 3.21 is a list of all
------------- -------------
banks or other financial institutions with which the Company has an account or
maintains a safe deposit box, showing the type and account number of each such
account and safe deposit box and the names of the persons authorized as
signatories thereon or to act or deal in connection therewith. The Company
currently has at least $100,000 in cash (after including checks deposited to the
Company's bank accounts and currently in the process of collection and including
outstanding checks written on the Company's bank accounts but not yet charged
against the Company's bank accounts), and, except for Permitted Funded
Indebtedness, the Company currently has no Funded Indebtedness.
3.22 Warranties. Except for warranty claims that are typical and in
----------
the ordinary course of the Business, no written claim for breach of product or
service warranty to any customer has been made against the Company since January
1, 1997. To the Knowledge of the Company and Sellers, no state of facts exists,
and no event has occurred, which could reasonably be expected to form the basis
of any present claim against the Company for liability on account of any express
or implied warranty to any third party in connection with products sold or
services rendered by the Company, except for warranty claims which are typical
and in the ordinary course of the Business.
3.23 Brokers. Neither the Company nor the Sellers have engaged, or
-------
caused to be incurred any liability to, any finder, broker, or sales agent in
connection with the origin, negotiation, execution, delivery, or performance of
this Agreement or the transactions contemplated hereby.
3.24 Interest in Competitors, Suppliers, Customers, Etc.. No officer,
----------------------------------------------------
director, or shareholder of the Company or any spouse of any such officer,
director, or shareholder, has any equity ownership interest in any competitor,
supplier, or customer of the Company (other than ownership of securities of a
publicly-held corporation of which such Person owns, or has real or contingent
rights to own, less than one percent of any class of outstanding securities) or
any property used in the operation of the Business.
3.25 Indebtedness To and From Officers, Directors, Shareholders, and
---------------------------------------------------------------
Employees. Attached hereto as Schedule 3.25 is a list of all indebtedness of the
- ---------
Company to officers, directors, shareholders, and employees of the Company and
all indebtedness of
-17-
<PAGE>
officers, directors, shareholders, and employees of the Company to the Company,
excluding indebtedness for travel, entertainment and other customary and
expenses in the ordinary course of the Business consistent with past practices.
3.26 [Intentionally Left Blank].
--------------------------
3.27 Information Furnished. The Company and the Sellers have made
---------------------
available to Buyer true and correct copies of all material corporate records of
the Company and all material agreements, documents, and other items listed on
the Schedules to this Agreement, and, to the Knowledge of the Company and
Sellers neither this Agreement, the Schedules hereto, nor any written
information, instrument, or document delivered to Buyer pursuant to this
Agreement contains any untrue statement of a material fact or omits any material
fact necessary to make the statements herein or therein, as the case may be, not
misleading.
For purposes of this Agreement, the term "Material" or "material" shall, where
appropriate in context of its use, be deemed to mean an amount of money greater
than $65,000. The terms "Material Adverse Change," "material adverse trend,"
"Material Adverse Effect," or any other term of like import shall mean the
occurrence of any single event, or any series of related events, or set of
related circumstances, which proximately causes an actual, direct economic loss
to the Company, taken as a whole, in excess of $65,000 per occurrence or
$100,000 in the aggregate.
ARTICLE IV
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to the Sellers as follows:
4.1 Due Organization. Buyer is a corporation duly organized, validly
----------------
existing, and in good standing under the laws of the State of Delaware and has
full corporate power and authority to carry on its business as now conducted.
Complete and correct copies of the Articles of Incorporation and Bylaws of the
Buyer, and all amendments thereto, have been heretofore delivered to Sellers.
4.2 Due Authorization. The Buyer has full power and authority
-----------------
to execute, deliver and perform this Agreement and to carry out the transactions
contemplated hereby. The execution, delivery, and performance of this Agreement,
the Executive Agreement, the Escrow Agreement, the Global Stock Agreement, and
the Promissory Notes (collectively, the "Buyer Documents") have been duly and
validly authorized by all necessary corporate action of the Buyer. The Buyer
Documents have been duly and validly executed and delivered by the Buyer,
constitute valid and binding obligations of the Buyer, enforceable in accordance
with their terms, except to the extent that enforceability may be limited by the
Equitable Exceptions. Except for the Equitable Exceptions, the execution,
delivery, and performance of the Buyer Documents by the Buyer: do not (a) to the
knowledge of the Buyer's directors and officers violate any Requirements of Laws
or any Court Order of any Governmental Body applicable to
-18-
<PAGE>
the Buyer or any of its subsidiaries or its or any of its subsidiaries'
property, (b) violate or conflict with, or permit the cancellation of, or
constitute a default under, any material agreement to which the Buyer or any of
its subsidiaries is a party, or to the knowledge of the Buyer's or any of its
subsidiaries' directors and officers by which Buyer or any of its subsidiaries
or its or any of its subsidiaries' property is bound, (c) permit the
acceleration of the maturity of any material indebtedness of, or material
indebtedness secured by the property of, the Buyer or any of its subsidiaries,
or (d) violate or conflict with any provision of the certificate of
incorporation or bylaws of the Buyer. Buyer will cause the Company to approve
the Executive Agreement by approval of the Company's board of directors.
4.3 No Brokers. Neither Buyer nor any of its subsidiaries has engaged
----------
or caused to be incurred any liability to, any finder, broker or sales agent in
connection with the origin, negotiation, execution, delivery, or performance of
this Agreement or the transactions contemplated hereby.
4.4 Investment. Buyer is acquiring the Shares solely for investment
----------
purposes and for its own account and not with a view to the distribution thereof
and will not sell, transfer, assign or otherwise dispose of the Shares in
violation of any Requirements of Laws.
4.5 Information Furnished. To the knowledge of Buyer's directors and
---------------------
officers, neither this Agreement, nor any written information, instrument, or
document delivered to the Company or the Sellers by Buyer in connection with
this Agreement and the transactions contemplated hereby contains any untrue
statement of a material fact or omits any material fact necessary to make the
statements herein or therein, as the case may be, not misleading.
ARTICLE V
[INTENTIONALLY LEFT BLANK]
ARTICLE VI
POST-CLOSING COVENANTS
6.1 General. In case at any time after the Closing any further
-------
action is legally necessary or reasonably desirable (as determined by Buyer and
the Sellers) to carry out the purposes of this Agreement, each of the parties
will take such further action (including the execution and delivery of such
further instruments and documents) as any other party reasonably may request,
all at the sole cost and expense of the requesting party (unless the requesting
party is entitled to indemnification therefor under Article VIII below). The
Sellers and Buyer acknowledge and agree that from and after the Closing, Buyer
will be entitled to possession of all documents, books, records, agreements, and
financial data of any sort relating to the Company, which shall be maintained at
the chief executive office of the Company; provided, however, that the Sellers
shall be entitled to reasonable access to and to make copies of such books and
records at their sole cost and expense, and Buyer will maintain all of the same
for a period of at least seven (7) years after Closing.
-19-
<PAGE>
6.2 Transition. For a period of three (3) years following Closing,
----------
the Sellers will not make statements intentionally disparaging the Company that
are primarily designed or intended to have the effect of discouraging any
material lessor, licensor, customer, supplier, or other business associate of
the Company from maintaining the same business relations with the Company after
the Closing as it currently maintains with the Company.
6.3 Confidentiality. For a period of three (3) years from and
---------------
after the Closing Date, the Sellers will (i) treat and hold as such all
Confidential Information, (ii) refrain from using any of the Confidential
Information except in connection with this Agreement, as an employee of the
Company, or otherwise for the intended benefit of the Company, Buyer or its
subsidiaries, and (iii) deliver promptly to Buyer or destroy, at the written
request and option of Buyer, all tangible embodiments (and all copies) of the
Confidential Information which are in their possession, except as otherwise
permitted herein or as required to preserve, defend, protect and enforce their
rights hereunder. In the event that any Seller is requested or required (by oral
question or written request for information or documents in any legal
proceeding, interrogatory, subpoena, civil investigative demand, or similar
legal proceeding) to disclose any Confidential Information, such Seller will
notify Buyer promptly of the request or requirement.
6.4 Covenant Not to Compete. For and in consideration of the
-----------------------
allocation of $150,000 of the Purchase Price paid to the Sellers by Buyer, each
Seller covenants and agrees, for a period of three (3) years from and after the
Closing Date, that he will not, directly or indirectly without the prior written
consent of Buyer, for or on behalf of any entity:
(a) become interested or engaged, directly or indirectly, as a
shareholder, bondholder, creditor, officer, director, partner, agent, contractor
with, employer or representative of, or in any manner associated with, or give
financial, technical or other assistance to, any Person, firm or corporation for
the purpose of engaging in the Business in competition with the Company, Buyer
or their respective affiliates within Cook, DuPage, Lake, McHenry or Will
Counties in the State of Illinois or Lake or Porter Counties in the State of
Indiana (the "Current Trade Area");
(b) enter into any agreement with, service, assist or solicit the
business of any current customers (i.e., all customers of the Company within the
last three years) for the purpose of providing office equipment sales or service
to such customers in competition with the Company in the Current Trade Area or
to cause them to reduce or end their business with the Company in the Current
Trade Area; or
(c) enter into any agreement with, or solicit the employment of
any current employees, consultants or representatives of the Company for the
purpose of causing them to leave the employment of the Company to accept
employment in the Current Trade Area;
provided, however, that ownership of less than one percent (1%) of the
outstanding stock of any publicly-traded corporation shall be deemed to be in a
violation of this Section 6.4 and provided, further, that the covenant not to
-----------
compete set forth in paragraph (a) above shall not
-------------
-20-
<PAGE>
apply to Mokszycki if and only if Mokszycki owns or operates a copier dealer
business that has less than $4,000,000 in annual sales revenue (at the time he
acquires such business and for at least one year thereafter) and does not sell
any copiers or facsimile machine brands sold by the Company as of the Closing
Date. Notwithstanding the foregoing, Mokszycki shall not (and shall be deemed to
have breached this Section 6.4) in the event he violates either paragraph (b) or
----------- -------------
paragraph (c) above or in the event he utilizes any name similar to the
- -------------
corporate names or tradenames of the Company, Buyer or any of their affiliates
or any trademark or service mark similar to those of the Company, Buyer or any
of their respective affiliates. In addition, Sellers shall cease to have any
obligations under this Section 6.4 if there is a breach of Section 2.9 or any of
----------- -----------
the Promissory Notes is not paid when due and any such breach or nonpayment is
not cured within fifteen (15) days of delivery of written notice of such breach
or nonpayment to Buyer.
6.5 Additional Matters.
------------------
(a) The Sellers shall cause the Company to file with the
appropriate governmental authorities all federal, state and local income Tax
Returns required to be filed by it for any taxable period ending prior to the
Closing Date and the Company shall remit any Taxes due in respect of such Tax
Returns. In addition, the Sellers shall cause Mulcahy Pauritsch Salvador & Co.,
Limited to prepare a short period tax return for the Company covering the period
from January 1, 1998 through November 30, 1998. The cost of preparation of such
short period tax return shall be paid for by the Sellers.
(b) Buyer and the Sellers recognize that each of them will need
access, from time to time, after the Closing Date, to certain accounting and Tax
records and information held by Buyer and/or the Company to the extent such
records and information pertain to events occurring on or prior to the Closing
Date; therefore, Buyer agree to cause the Company to (A) use its best efforts to
properly retain and maintain such records for a period of seven (7) years from
the date the Tax Returns for the year in which the Closing occurs are filed or
until the expiration of the statute of limitations with respect to such year,
whichever is later, and (B) allow each Seller and his agents and representatives
at times and dates mutually acceptable to the parties, to reasonably inspect,
review and make copies of such records from time to time, such activities to be
conducted during normal business hours and at the inspecting party's expense.
(c) Section 338(h)(10) Election. The Sellers and Buyer shall
---------------------------
join in making a timely election (but in no event later than 180 days following
the Closing) under Section 338(h)(10) of the Code (including the prerequisite
election under Section 338 of the Code) and any similar state law provisions in
all applicable states which permit corporations to make such elections, with
respect to the sale and purchase of the Shares pursuant to this Agreement, and
each party shall provide the others all necessary information to permit such
elections to be made. Buyer and the Sellers shall, as promptly as practicable
following the Closing Date, take all actions necessary and appropriate
(including filing such forms, returns, schedules and other documents as may be
required) to effect and preserve timely elections; provided, however, that Buyer
shall be the party responsible for preparing and filing the forms,
-21-
<PAGE>
returns, schedules and other documents necessary for making an effective and
timely election. All Taxes attributable to the elections made pursuant to this
Section 6.5(c) shall be the liability of the Sellers; provided, however, that
- --------------
(i) Buyer shall make a one-time payment to each Seller prior to such election to
reimburse each Seller for any additional Taxes and other reasonable costs solely
as a result of such election, (ii) said reimbursement shall be grossed up so
that the Sellers will be made whole, after all Taxes on amounts paid to Sellers
under clause (i) above and this clause (ii), for such additional Taxes and other
costs, and (iii) the one-time reimbursement payment required under (i) and (ii)
above shall be in an amount mutually agreed upon by Sellers and Buyer; and
provided, further, that in the event the actual additional Taxes that a Seller
incurs as a result of such election are less than or greater than the additional
Taxes that such Seller is expected to incur as a result of such election, Buyer
shall pay such Seller or such Seller shall pay Buyer an additional amount
sufficient to make such Seller whole or to make Buyer whole, as the case may be,
after Taxes and taking after taking into account the initial payment to such
Seller under the preceding proviso, for such additional or lesser Taxes. In
connection with such elections, within sixty (60) days following the Closing
Date, Buyer and the Sellers shall act together in good faith to determine and
agree upon the "deemed sales price" to be allocated to each asset of the Company
in accordance with Treasury Regulation Section 1.338(h)(10)-1(f) and the other
regulations under Section 338 of the Code. Notwithstanding the generality of
immediately preceding sentence, Buyer and the Sellers agree that the "deemed
sales price" shall be allocated to the monetary assets of the Company at their
fair market value as of the Effective Date, $150,000 shall be allocated to the
covenant not to compete contained in Section 6.4 hereof, and the balance of the
-----------
"deemed sales price" shall be allocated to the fixed assets, goodwill and other
intangible assets of the Company. Buyer shall report the tax consequences of the
transactions contemplated by this Agreement consistently with such allocations
and shall not take any position inconsistent with such allocations in any Tax
Return or otherwise. In the event that Buyer and the Sellers are unable to agree
as to such allocations, Buyer's reasonable positions with respect to such
allocations shall control. The Sellers shall be liable for, and shall indemnify
and hold Buyer and the Company harmless against, any Taxes or other costs
attributable solely to (i) a failure on the part of any Seller to take all
actions required of him under this Section 6.5(c); or (ii) a failure on the part
--------------
of the Company to qualify, at or prior to the Closing, as an "S corporation" for
federal and/or state income Tax purposes.
ARTICLE VII
CONDITIONS TO OBLIGATION OF PARTIES TO CONSUMMATE CLOSING
7.1 Conditions to Buyer's Obligations. The obligation of Buyer under
---------------------------------
this Agreement to consummate the Closing is subject to the conditions that:
(a) Covenants, Representations and Warranties. The Company and
-----------------------------------------
the Sellers shall have performed in all material respects all obligations and
agreements and complied in all material respects with all covenants contained in
this Agreement to be performed and complied with by each of them prior to or at
the Closing Date.
-22-
<PAGE>
(b) Consents. All statutory requirements for the valid
--------
consummation by the Company and the Sellers of the transactions contemplated by
this Agreement shall have been fulfilled and all authorizations, consents and
approvals required to be obtained in order to permit the consummation of the
transactions contemplated hereby shall have been obtained in form and substance
reasonably satisfactory to Buyer, unless such failure could not reasonably be
expected to have a Material Adverse Effect. All approvals of the Board of
Directors and shareholders of the Company necessary for the consummation of this
Agreement and the transactions contemplated hereby shall have been obtained.
(c) Suppliers/Leases. The Sellers shall have obtained, where
----------------
necessary, the written consent of (i) the Company's Material office equipment
suppliers and (ii) the lessors of the Company's facilities to the Landlord
Agreement forms and the transactions contemplated by the Agreement, except as
specifically waived by Buyer, in which event Sellers shall continue to use their
reasonable best efforts to obtain such consents within 30 days after the Closing
Date.
(d) Discharge of Indebtedness and Liens. The Sellers and the
-----------------------------------
Company shall have provided for the payment in full by the Company of all Funded
Indebtedness of the Company, if any, that is not Permitted Funded Indebtedness.
The Sellers shall have also provided for the termination of all Encumbrances of
record on the properties of the Company, except for Permitted Exceptions. All
liens or UCC filings against the Company other than Permitted Exceptions shall
have been terminated as of the Closing.
(e) Documents to be Delivered by the Sellers and the Company.
--------------------------------------------------------
The following documents shall be delivered at the Closing by the Sellers and
the Company:
(i) Opinion of the Sellers' Counsel. Buyer shall have
-------------------------------
received an opinion of counsel to the each of the Sellers, dated
the Closing Date, in substantially the same form as the form of
opinion that is Exhibit C hereto.
(ii) Certificates. Buyer shall have received a secretary's
------------
certificate of the Company executed by officers of the Company,
dated the Closing Date, in substantially the same form as the form
of certificate that is Exhibit D hereto.
(iii) Release. The Sellers shall have furnished the Company
-------
with a general release in substantially the same form as the
form attached as Exhibit E hereto.
(iv) Escrow Agreement. The Sellers shall have delivered to
----------------
Buyer at the Closing the duly executed Escrow Agreement required
pursuant to Section 2.5 hereof.
(v) Executive Agreements. Cosich shall have duly executed
--------------------
and delivered the Executive Agreement in substantially the same
form attached
-23-
<PAGE>
as Exhibit F hereto, pursuant to which he will be employed by the
Company following the Closing.
(vi) Building Leases. The Sellers shall have delivered to
---------------
Buyer a Landlord Agreement of the landlords of the Company's
facilities to Buyer's lenders in substantially the same form as
the form attached as Exhibit B hereto, except as specifically
waived by Buyer.
(vii) Global Stock Agreement. Sellers shall have duly
----------------------
executed and delivered to Buyer the Global Stock Agreement in
substantially the same form as the form attached hereto as Exhibit
-------
H.
-
(viii) Personal Vehicles. Sellers shall have made arrangements
-----------------
satisfactory to Buyer to assume personal responsibility for any
Company-leased vehicles that they use.
(ix) Sellers Receivables. The Sellers shall, and the Company
-------------------
shall have caused, all of the Company's officers, directors
and/or employees to have repaid in full all material debts and
other obligations, if any, owed to the Company.
(x) Stock Certificates. The Sellers shall have delivered
------------------
the Shares accompanied by duly executed stock powers, together
with any stock transfer stamps or receipts for any transfer taxes
required to be paid thereon.
(xi) Resignations. The Sellers shall have delivered
------------
resignations from (i) Cosich as a director of the Company and as
trustee of its employee benefit plan and trusts and (ii) Mokszycki
as a director, officer, and employee of the Company.
7.2 Conditions to the Sellers' and the Company's Obligations. The
--------------------------------------------------------
obligation of the Sellers and the Company under this Agreement to consummate
the Closing is subject to the conditions that:
(a) Covenants, Representations and Warranties. Buyer shall
-----------------------------------------
have performed in all material respects all obligations and agreements and
complied in all material respects with all covenants contained in this Agreement
to be performed and complied with by Buyer prior to or at the Closing.
(b) Consents. All statutory requirements for the valid
--------
consummation by Buyer of the transactions contemplated by this Agreement shall
have been fulfilled and all authorizations, consents and approvals shall have
been obtained unless such failure shall not have a Material Adverse Effect on
the Business. Buyer shall have used its reasonable efforts to have obtained the
release of the Sellers from all personal guarantees with respect to the Company.
-24-
<PAGE>
(c) Documents to be Delivered by Buyer. The following
----------------------------------
documents shall be delivered at the Closing by Buyer:
(i) Certificates. The Sellers shall have received a
------------
secretary's certificate executed by officers of Buyer, dated the
Closing Date, in substantially the same form as the form of
certificate that is Exhibit G hereto.
(ii) Escrow Agreement. Buyer shall have delivered to the
----------------
Sellers at the Closing the duly executed Escrow Agreement required
pursuant to Section 2.5 hereof.
(iii) Executive Agreements. Buyer and the Company shall have
--------------------
duly executed and delivered the Executive Agreement with Cosich in
the same form attached as Exhibit F hereto, pursuant to which he
will be employed by the Company following the Closing.
(iv) Global Stock Agreement. Buyer shall have duly executed
----------------------
and delivered to Sellers the Global Stock Agreement in substantially
the same form as the form attached hereto as Exhibit H.
(d) Payments to the Sellers and the Company and the Escrow
------------------------------------------------------
Agent. The Sellers and the Escrow Agent shall have received the Purchase Price
- -----
for the Shares as contemplated by Section 2.3 (excluding the stock certificates
representing the Stock, which certificates shall be delivered on or prior to
January 5, 1998 to the Escrow Agent in the names of Sellers to serve as a
portion of the Escrow Fund).
ARTICLE VIII
INDEMNIFICATION
8.1 Indemnification of Buyer. Except as provided in Section 8.7, the
------------------------ -----------
Sellers agree to jointly and severally indemnify and hold harmless Buyer and
each officer, director, and affiliate of Buyer, including, without limitation,
the Company or any successor of the Company (collectively, the "Buyer
Indemnified Parties") from and against any and all damages, losses, claims,
liabilities, demands, charges, suits, penalties, costs and expenses (including
court costs and reasonable attorneys fees and expenses incurred in investigating
and preparing for any litigation or proceeding) (collectively, the "Buyer
Indemnifiable Costs"), which any of the Buyer Indemnified Parties may sustain,
or to which any of the Buyer Indemnified Parties may be subjected, arising out
of (A) any misrepresentation, breach or default by the Sellers or, prior to
Closing, the Company, of or under any of the representations, warranties,
covenants, agreements or other provisions of this Agreement, the Escrow
Agreement, or the Global Stock Agreement; (B) the assertion and final
determination of any claim or liability against the Company or any of the Buyer
Indemnified Parties by any Person based upon the facts which form the alleged
basis for any litigation required to disclosed on Schedule 3.16, to the extent
-------------
it should have been, but was not, reserved for in the Company's November 30,
1998 balance sheet in accordance with GAAP; (C) any failure by
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<PAGE>
the Sellers to comply with the provisions of this Agreement after the Closing
Date; and (D) the alleged wrongful discharge of Oscar Espitia by the Company .
8.2 Indemnification of the Sellers. Buyer agrees to indemnify and hold
------------------------------
harmless the Sellers and each Seller's executors, personal representatives,
heirs, beneficiaries and legatees (collectively, the "Seller Indemnified
Parties") from and against any and all damages, losses, claims, liabilities,
demands, charges, suits, penalties, costs and expenses (including court costs
and reasonable attorneys' fees and expenses incurred in investigating and
preparing for any litigation or proceeding) (collectively, the "Seller
Indemnifiable Costs"), which any of the Seller Indemnified Parties may sustain,
or to which any of the Seller Indemnified Parties may be subjected, arising out
of (A) any misrepresentation, breach or default by Buyer of or under any of the
representations, warranties, covenants, agreements or other provisions of this
Agreement, the Escrow Agreement, the Global Stock Agreement or the Promissory
Notes; (B) any failure by the Company to comply with the provisions of this
Agreement after the Closing Date; and (C) any liabilities or obligations of the
Sellers for any payment of, or satisfaction of any guarantees by the Sellers of,
the Company's obligations after the Closing Date, including, but not limited to
the lease liabilities and obligations set forth on Schedule 3.9 hereto.
------------
8.3 Sellers' Defense of Claims. If any legal proceeding shall
--------------------------
be instituted, or any claim or demand made, against any Buyer Indemnified Party
in respect of which the Sellers may be liable hereunder, such Buyer Indemnified
Party shall give prompt written notice thereof to the Sellers and, except as
otherwise provided in Section 8.6 below, the Sellers shall have the right to
-----------
defend, or cause the Company or its successors to defend, any litigation,
action, suit, demand, or claim for which it may seek indemnification unless, in
the reasonable judgment of Buyer, such litigation, action, suit, demand, or
claim, or the resolution thereof, would have an ongoing Material Adverse Effect
on the Company not adequately covered by such indemnification, and such Buyer
Indemnified Party shall extend reasonable cooperation in connection with such
defense, which shall be at the Sellers' expense. In the event the Sellers fail
or refuse to defend the same within a reasonable length of time, the Buyer
Indemnified Parties shall be entitled to assume the defense thereof, and the
Sellers shall be jointly and severally liable to repay the Buyer Indemnified
Parties for all expenses reasonably incurred in connection with said defense
(including reasonable attorneys' fees and settlement payments) if it is
determined that such request for indemnification was proper and the same
constitute Buyer Indemnified Costs. If the Sellers shall not have the right to
assume the defense of any litigation, action, suit, demand, or claim in
accordance with either of the two preceding sentences, the Buyer Indemnified
Parties shall have the absolute right to control the defense of and to settle,
in Buyer Indemnified Parties' sole discretion such litigation, action, suit,
demand, or claim, but each Seller shall be entitled, at his own expense, to
participate in such litigation, action, suit, demand, or claim.
8.4 Buyer's Defense of Claims. If any legal proceeding shall be
-------------------------
instituted, or any claim or demand made, against any Seller Indemnified Party in
respect of which the Buyer may be liable hereunder, such Seller Indemnified
Party shall give prompt written notice thereof to the Buyer, the Buyer shall
have the right to defend, or cause the Company or its
-26-
<PAGE>
successors to defend, any litigation, action, suit, demand, or claim for which
it may seek indemnification unless the Buyer fails or refuses to defend the same
within a reasonable length of time, in which event the Seller Indemnified
Parties shall be entitled to assume the defense thereof, and the Buyer shall be
liable to repay the Seller Indemnified Parties for all expenses reasonably
incurred in connection with said defense (including reasonable attorneys' fees
and settlement payments) if it is determined that such request for
indemnification was proper and the same constitute Seller Indemnified Costs. If
the Buyer shall not have the right to assume the defense of any litigation,
action, suit, demand, or claim in accordance with the preceding sentence, the
Seller Indemnified Parties shall have the absolute right to control the defense
of and to settle, in Seller Indemnified Parties' sole discretion such
litigation, action, suit, demand, or claim, but Buyer shall be entitled, at its
own expense, to participate in such litigation, action, suit, demand, or claim.
8.5 Escrow Claim. If any claim for indemnification is made by Buyer
------------
pursuant to this Article VIII prior to the expiration of the Escrow Period,
Buyer shall first apply to the Escrow Agent for reimbursement of such claim in
accordance with the provisions of the Escrow Agreement and exhaust its rights
under the Escrow Agreement prior to seeking satisfaction for such claim outside
of the Escrow Agreement.
8.6 Tax Audits, Etc. In the event of an audit of any Tax Return of
---------------
the Company with respect to which a Buyer Indemnified Party might be entitled to
indemnification pursuant to Section 8.1, Buyer shall have the right to control
-----------
any and all such audits which may result in the assessment of additional Taxes
against the Company and any and all subsequent proceedings in connection
therewith, including appeals; provided, however, that, notwithstanding the
foregoing, in the event of an audit of any Tax Return of the Company related to
any period prior to the Closing with respect to which a Seller may be obligated
to pay Taxes, Sellers shall have the right to control such audit, but only with
respect to issues affecting Taxes that Sellers may be obligated to pay. The
Sellers, the Company and Buyer shall each cooperate fully in all matters
relating to any such audit or other Tax proceeding (including according access
to all records pertaining thereto), and will execute and file any and all
consents, powers of attorney, and other documents as shall be reasonably
necessary in connection therewith.
8.7 Limits on Sellers' Indemnification. Anything in this Agreement
----------------------------------
(including, but not limited to, Section 8.1 and 8.3) to the contrary:
(a) Except in the case of intentional fraud by Cosich or claims
for breaches of representations and warranties under Sections 3.1, 3.2 or 3.3,
----------------- ---
the liability of Cosich to all Buyer Indemnified Parties for all Buyer
Indemnified Costs shall not exceed the lesser of (i) 54.4% of such Buyer
Indemnified Costs or (ii) an aggregate of $5,440,000.
(b) Except in the case of intentional fraud by Mokszycki or
claims for breaches of representations and warranties under Sections 3.1, 3.2
-----------------
or 3.3, the liability of Mokszycki to all Buyer Indemnified Parties for all
---
Buyer Indemnified Costs shall not exceed the lesser of (i) 45.6% of such Buyer
Indemnified Costs or (ii) an aggregate of $4,560,000.
-27-
<PAGE>
(c) All Buyer Indemnifiable Costs sought by any party hereunder
shall be net of any insurance proceeds received by the Buyer Indemnified Parties
with respect to such claim (less the present value of any premium increases
occurring as a direct result of such claim).
(d) Except for any claims for breach of the representations,
warranties and covenants of the Sellers under Sections 3.1, 3.2, 3.3, 3.17,
-------------------
3.23 or Articles VI or IX hereof (for which indemnification claims must be made
- ---- ----------- --
prior to the expiration of the applicable statute of limitations and if so made,
such claims shall continue after such date until finally resolved), the Buyer
Indemnified Parties' right to make claims for indemnification provided under
this Article VIII shall expire on the second anniversary of the Closing Date
------------
(except for claims made prior to such date which shall continue after such date
until finally resolved).
(e) Except for claims for breach of the representations,
warranties and covenants of the Sellers under Sections 3.1, 3.2, 3.3, 3.17, 3.23
----------------------------------
or 3.26 hereof and Articles VI and IX hereof, the Sellers shall not be obligated
---- ----------- --
to pay any amounts for indemnification under this Article VIII until the
------------
aggregate Buyer Indemnified Costs exceeds $100,000, whereupon the Sellers shall
be liable for all amounts for which indemnification may be sought..
(f) Except for intentional fraud, this Article VIII sets forth
------------
the sole and exclusive monetary rights and remedies of the Buyer Indemnified
Parties for any matter referred to in Section 8.1(A) or 8.1(B).
-------------- ------
8.8 Limits on Buyers' Indemnification. Anything in this Agreement
---------------------------------
(including, but not limited to, Section 8.2 and 8.4) to the contrary:
----------- ---
(a) Except in the case of intentional fraud by Buyer, the liability
of Buyer to all Seller Indemnified Parties for all Seller Indemnified Costs
shall not exceed an aggregate of $10,000,000; provided, however, that the
foregoing limitation shall not apply to the requirement to issue the Stock or to
pay the Promissory Notes.
(b) Except for any claims for breach of the representations,
warranties and covenants of the Buyer in Articles IV, VI or IX hereof (for which
----------- -- --
indemnification claims must be made prior to the expiration of the applicable
statute of limitations and if so made, such claims shall continue after such
date until finally resolved), the Seller Indemnified Parties' right to make
claims for indemnification provided under this Article VIII shall expire on the
second anniversary of the Closing Date (except for claims made prior to such
date which shall continue after such date until finally resolved).
(c) Except for intentional fraud, this Article VIII sets forth
the sole and exclusive monetary rights and remedies of the Seller Indemnified
Parties for any matter referred to in Section 8.2 or 8.4; provided, however,
----------- ---
that the foregoing limitation shall not apply to the requirement to issue the
Stock or to pay the Promissory Notes.
-28-
<PAGE>
ARTICLE IX
MISCELLANEOUS
9.1 Modifications. Any amendment, change or modification of this
-------------
Agreement shall be void unless in writing and signed by all parties hereto. No
failure or delay by any party hereto in exercising any right, power or privilege
hereunder (and no course of dealing between or among any of the parties) shall
operate as a waiver of any such right, power or privilege. No waiver of any
default on any one occasion shall constitute a waiver of any subsequent or other
default. No single or partial exercise of any such right, power or privilege
shall preclude the further or full exercise thereof.
9.2 Notices. All notices and other communications hereunder shall be
-------
in writing and shall be delivered as follows:
Buyer:
-----
Global Imaging Systems, Inc.
13902 North Dale Mabry Road, Suite 300
Box 273478
Tampa, Florida 33688-3478
Attention: Thomas Johnson, President
Fax No.: (813) 264-7877
Tel No.: (813) 960-5508
With a copy to:
--------------
Hogan & Hartson L.L.P.
Columbia Square
555 Thirteenth Street, NW
Washington, DC 20004-1109
Attention: Christopher J. Hagan
Fax No.: (202) 637-5910
Tel No.: (202) 637-5771
The Company:
-----------
Distinctive Business Products, Inc.
5328 West 123rd Place
Alsip, Illinois 60658
Attention: John R. Cosich
Fax No.: (708) 371-6744
Tel No.: (708) 371-6700
-29-
<PAGE>
With a copy to:
--------------
Butler, Rubin, Saltarelli & Boyd
1800 Three First National Plaza
70 West Madison Street
Chicago, Illinois 60602
Attention: Craig T. Boyd
Fax No.: 312-444-9287
Tel No.: 312-444-9660
Cosich:
------
John R. Cosich
460 Butternut Trail
Frankfort, Illinois 60423
Fax No.: (815) 469-1997
Tel No.: (815) 469-1997
Mokszycki:
---------
C. Joseph Mokszycki
25459 Cayuga Trail
Lake Barrington, Illinois 60010
Fax No.: (847) 381-9362
Tel No.: (847) 381-8140
With a copy to:
--------------
McBride, Baker & Coles
Northwestern Atrium Center
500 West Madison Street
Chicago, Illinois 60661
Attn: Theodore T. Lemberis
Fax No.: (312) 715-5827
Tel No.: (312) 993-9350
or to such other address as to any party hereto as such party shall designate by
like notice to the other parties hereto. All such notices and other
communications shall be deemed to have been given upon receipt, if delivered in
person, or upon delivery to the recipient's address for notices, statements and
other communications, if delivery by mail, courier or messenger service, or by
fax.
9.3 Counterparts; Facsimile Transmission. This Agreement may be
------------------------------------
executed in several counterparts, each of which shall be deemed an original but
all of which counterparts collectively shall constitute one instrument, and in
making proof of this Agreement,
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<PAGE>
it shall never be necessary to produce or account for more than one such
counterpart. Signatures of a party to this Agreement or other documents executed
in connection herewith which are sent to the other parties by facsimile
transmission shall be binding as evidence of acceptance of the terms hereof or
thereof by such signatory party, with originals to be circulated to the other
parties in due course.
9.4 Expenses. Each of the parties hereto will bear all costs,
--------
charges and expenses incurred by such party in connection with this Agreement
and the consummation of the transactions contemplated herein; provided, however,
that the Sellers shall bear all legal fees and expenses of the Sellers and, in
the case of legal services through the Closing, the Company, with respect to
this Agreement and the transactions contemplated hereby (except for such fees
and expenses which have been paid by the Company on or prior to the Closing Date
or are accrued as a current liability on the Closing Balance Sheet.
9.5 Binding Effect; Assignment. This Agreement shall be binding upon
--------------------------
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns, and, in the case of the Sellers, their respective
executors, personal representatives, heirs, beneficiaries and legatees, and in
the case of Section 2.9, the Cosich Children's Trusts, in accordance with the
terms hereof. Without in any way limiting the foregoing, the indemnification
rights of Buyer under Article VIII hereof may be assigned by Buyer to First
Union National Bank, N.A.
9.6 Entire and Sole Agreement. This Agreement and the schedules and
-------------------------
agreements attached as exhibits hereto, constitute the entire agreement between
the parties hereto and supersede all prior agreements, representations,
warranties, statements, promises, information, arrangements and understandings,
whether oral or written, express or implied, with respect to the subject matter
hereof.
9.7 Governing Law. This Agreement and its validity, construction,
-------------
enforcement, and interpretation shall be governed by the substantive laws of the
State of Illinois (without reference to Illinois' rules related to choice of
laws).
9.8 Survival of Representations, Warranties and Covenants. Regardless
-----------------------------------------------------
of any investigation at any time made by or on behalf of any party hereto or of
any information any party may have in respect thereof, all covenants,
agreements, representations, and warranties and the related indemnities made
hereunder or pursuant hereto or in connection with the transactions contemplated
hereby shall survive the Closing for a period of two (2) years, provided (a) the
representations and warranties contained in Sections 3.1, 3.2, 3.3, 3.14, 3.17
----------------------------------
and 3.23 and Article IV of this Agreement, and the related indemnities, shall
----
survive the Closing until the expiration of the applicable statute of
limitations, and (b) the covenants and agreements in Articles I, VI, VIII and IX
---------- -- ---- --
shall survive the Closing until the expiration of the applicable statute of
limitations.
9.9 Invalid Provisions. If any provision of this Agreement is deemed or
------------------
held to be illegal, invalid or unenforceable, this Agreement shall be considered
divisible and inoperative as to such provision to the extent it is deemed to be
illegal, invalid or
-31-
<PAGE>
unenforceable, and in all other respects this Agreement shall remain in full
force and effect; provided, however, that if any provision of this Agreement is
deemed or held to be illegal, invalid or unenforceable there shall be added
hereto automatically a provision as similar as possible to such illegal, invalid
or unenforceable provision and be legal, valid and enforceable. Further, should
any provision contained in this Agreement ever be reformed or rewritten by any
judicial body of competent jurisdiction, such provision as so reformed or
rewritten shall be binding upon all parties hereto.
9.10 Public Announcements. Except as required by securities laws,
--------------------
neither party shall make any public announcement of the transactions
contemplated hereby without the prior written consent of the other party, which
consent shall not be unreasonably withheld.
9.11 Remedies Cumulative. Subject to the provisions of Sections 8.7(f)
-------------------
and 8.8(c), the remedies of the parties under this Agreement are cumulative and
shall not exclude any other equitable remedies to which any party may be
lawfully entitled.
9.12 Waiver. No failure or delay on the part of any party in
------
exercising any right, power, or privilege hereunder or under any of the
documents delivered in connection with this Agreement shall operate as a waiver
of such right, power, or privilege; nor shall any single or partial exercise of
any such right, power, or privilege preclude any other or further exercise
thereof or the exercise of any other right, power, or privilege.
9.13 DISPUTE RESOLUTION. ALL DISPUTES BETWEEN THE SELLERS AND
------------------
BUYER WITH RESPECT TO ANY PROVISION OF THIS AGREEMENT OR THE RIGHTS AND
OBLIGATIONS OF THE SELLERS AND BUYER HEREUNDER, WHICH CANNOT BE RESOLVED BY
MUTUAL AGREEMENT, WILL BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE
RULES OF THE AMERICAN ARBITRATION ASSOCIATION IN CHICAGO, ILLINOIS, OR BY ANY
OTHER MEANS OF ALTERNATIVE DISPUTE RESOLUTION MUTUALLY AGREED UPON BY THE
PARTIES. EACH PARTY SHALL BE ENTITLED TO DISCOVERY PURSUANT TO THE FEDERAL RULES
OF CIVIL PROCEDURE AND FEDERAL RULES OF EVIDENCE.
[THIS SPACE INTENTIONALLY LEFT BLANK]
-32-
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed as of the date and year first above written.
BUYER:
GLOBAL IMAGING SYSTEMS, INC.
By: /s/ Tom Johnson
Name: Tom Johnson
Title: President and Chief Executive
Officer
THE COMPANY:
DISTINCTIVE BUSINESS PRODUCTS, INC.
By: /s/ John R. Cosich
Name: John R. Cosich
Title: President
THE SELLERS:
/s/ John R. Cosich
John R. Cosich
/s/ C. Joseph Mokszycki
C. Joseph Mokszycki
The Exhibits and Schedules to this Stock Purchase Agreement are not included in
this Quarterly Report on Form 10-Q. Global will provide these exhibits and
schedules upon the request of the Securities and Exchange Commission.
-33-
<TABLE> <S> <C>
<PAGE>
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<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-START> APR-01-1998
<PERIOD-END> DEC-31-1998
<CASH> 4,247
<SECURITIES> 0
<RECEIVABLES> 46,199
<ALLOWANCES> 1,296
<INVENTORY> 27,193
<CURRENT-ASSETS> 3,563
<PP&E> 29,769
<DEPRECIATION> 19,897
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<CURRENT-LIABILITIES> 41,739
<BONDS> 0
0
0
<COMMON> 82,811
<OTHER-SE> 6,583
<TOTAL-LIABILITY-AND-EQUITY> 276,760
<SALES> 200,861
<TOTAL-REVENUES> 200,861
<CGS> 132,920
<TOTAL-COSTS> 176,581
<OTHER-EXPENSES> 3,039
<LOSS-PROVISION> 166
<INTEREST-EXPENSE> 5,443
<INCOME-PRETAX> 15,798
<INCOME-TAX> 7,044
<INCOME-CONTINUING> 8,754
<DISCONTINUED> 0
<EXTRAORDINARY> (1,817)
<CHANGES> 0
<NET-INCOME> 6,937
<EPS-PRIMARY> .38
<EPS-DILUTED> .37
</TABLE>
