SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________________________
SCHEDULE 13D
(RULE 13D-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(Amendment No. 5){1}
AMERIQUEST TECHNOLOGIES, INC.
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
03070P 10-3
(CUSIP Number)
KLAUS H. JANDER, ESQ.
ROGERS & WELLS LLP
200 PARK AVENUE
NEW YORK, NEW YORK 10166
(212) 878-8000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
JULY 2, 1998
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this
Schedule 13D, and is filing this schedule because of Rule 13d-1(e),
13d-1(f) or 13d-1(g), check the following box <square>.
NOTE. Schedules filed in paper format shall include a
signed original and five copies of the schedule, including all
exhibits. SEE Rule 13d-7(b) for other parties to whom copies are to be
sent.
(Continued on following pages)
(Page 1 of 42 Pages)
Exhibit Index Begins at Page 16
__________________________
{1} The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, SEE the
NOTES.)
<PAGE>
13D
CUSIP NO. 03070P 10-3 PAGE 2 OF 42 PAGES
<TABLE>
<CAPTION>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Computer 2000 AG
<S> <C> <C> <C>
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) <checked-box>
(B) <square>
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(C) OR 2(E) <square>
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Federal Republic of Germany
7 SOLE VOTING POWER
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 78,307,920
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH
10 SHARED DISPOSITIVE POWER
78,307,920
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON <square>
78,307,920
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* <square>
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
APPROXIMATELY 72%
14 TYPE OF REPORTING PERSON*
HC/CO
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS
1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE
SIGNATURE ATTESTATION.
<PAGE>
13D
CUSIP NO. 03070P 10-3 PAGE 3 OF 42 PAGES
<TABLE>
<CAPTION>
<S> <C> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Computer 2000, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (A) <checked-box>
(B) <square>
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(C) OR 2(E) <square>
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY
OWNED BY 78,307,920
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON
WITH 10 SHARED DISPOSITIVE POWER
78,307,920
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON <square>
78,307,920
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* <square>
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
APPROXIMATELY 72%
14 TYPE OF REPORTING PERSON*
HC/CO
</TABLE>
*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS
1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE
SIGNATURE ATTESTATION.
<PAGE>
This Amendment No. 5 ("Amendment No. 5") to the Statement on Schedule 13D
dated November 14, 1994 (the "Schedule 13D") is filed by Computer 2000 AG
and Computer 2000, Inc. in connection with their beneficial ownership of
Common Stock of AmeriQuest Technologies, Inc., a Delaware corporation (the
"Common Stock"). Schedule 13D as previously amended by Amendment No. 1,
dated August 7, 1995, by Amendment No. 2, dated March 29, 1996, by
Amendment No. 3, dated April 14, 1997, and by Amendment No. 4, dated May 6,
1997, is hereby amended as set forth below.
ITEM 2. IDENTITY AND BACKGROUND.
Item 2 of Schedule 13D is hereby amended in its entirety to read as set
forth below:
Pursuant to Rule 13d-1(a) promulgated under the Act, this Statement on
Schedule 13D is filed on behalf of Computer 2000 AG, a stock company
organized under the laws of Germany ("C2000"), and Computer 2000 Inc., a
corporation organized under the laws of Delaware ("Sub").
C2000 is a distributor of hardware, software and communications products
for professional personal computers throughout Europe, and also provides
additional services relating thereto, including consultancy and technical
service and support. The address of C2000's principal business and
principal office is Wolfratshauser Strasse 84, 81379 Munich, Germany.
C2000 is a publicly-held company in Germany, and Tech Data Corporation
("Tech Data"), a Florida corporation, is the majority shareholder of C2000.
Tech Data acquired control of C2000 on July 1, 1998 pursuant to a Share
Purchase Agreement between Kloeckner & Co. AG and Tech Data, dated April
14, 1998.
Sub is a wholly-owned subsidiary of C2000 whose initial business is to
acquire securities in Issuer and to engage in purchasing and sales
activities for C2000 and its affiliated companies. The address of Sub's
principal office is Wolfratshauser Strasse 84, 81379 Munich, Germany.
Tech Data is a major distributor of microcomputer hardware and software
products to value-added resellers, corporate resellers, retailers and
direct marketers. Tech Data distributes products through the United
States, Canada, Latin America, Germany, France, Switzerland and Austria.
Tech Data's principal office is 5350 Tech Data Drive, Clearwater, Florida
34620.
The attached Schedule I is a list of the (i) members of the management
board and the members of the supervisory board of C2000 (under the German
legal system, members of the management board have positions that are
analogous to executive officers, and members of the supervisory board have
positions analogous to directors) and (ii) members of the Board of
Directors and executive officers of Sub. The attached Schedule II is a
list of the members of the Board of Directors and executive officers of
Tech Data.
During the last five years, neither C2000, Sub nor, to the best of each of
C2000's and Sub's knowledge, any person named in Schedule I or Schedule II
Page 4 of 42 Pages
<PAGE>
has been: (a) convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors); or (b) a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction as a result
of which it was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, U.S. federal or state securities laws or finding any violation
with respect to such laws.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 of the Schedule 13D is hereby amended by the addition of the
following:
Subject to the terms and conditions of that certain Disposition and
Reorganization Agreement, dated July 2, 1998, by and among the Issuer,
Computer 2000 AG, Sub and The Listen Group LLC, a Delaware limited
liability company (the "Disposition Agreement") C2000 and Sub have
determined, effective as of the closing date under the Disposition
Agreement, to dispose of (a) 36,349,878 shares of Common Stock,
representing approximately 54% of the issued and outstanding shares of
Common Stock; (b) 300,000 shares of Series H Cumulative Convertible
Preferred Stock, par value $0.01 per share, convertible into 41,958,042
shares of Common Stock (the "Preferred Stock") representing 100% of the
issued and outstanding shares of Preferred Stock; (c) achievement warrants
equivalent to 7,035,280 shares of Common Stock (the "Achievement
Warrants"); and (d) a maintenance option equivalent to 2,357,235 shares of
Common Stock. Upon the consummation of the transactions contemplated under
the Disposition Agreement, C2000 and Sub would no longer hold any
beneficial interest in any securities of the Issuer.
The Disposition Agreement is more fully described below in Item 6 of this
Amendment No. 5. It is anticipated that the closing under the Disposition
Agreement will occur before the end of July 1998. No assurances can be
given that the closing thereunder will actually occur. If the closing
under the Disposition Agreement does not occur, C2000 and Sub will reassess
their purposes and plans with respect to their beneficial ownership of
equity securities of the Issuer. No assurances can be given that such
purposes and plans will not change in the event the closing under the
Disposition Agreement does not occur.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER.
On July 2, 1998, the Issuer, C2000, Sub and The Listen Group Partners LLC
("Listen Group"), entered into the Disposition Agreement pursuant to which
C2000 and Sub shall, effective as of the closing date thereunder, dispose
of (a) 36,349,878 shares of Common Stock, representing approximately 54% of
the issued and outstanding shares of Common Stock; (b) 300,000 shares of
Preferred Stock, representing 100% of the issued and outstanding shares of
Preferred Stock; (c) the Achievement Warrants, which are equivalent to
7,035,280 shares of Common Stock; and (d) the Maintenance Option, which is
equivalent to 2,357,235 shares of Common Stock.
Page 5 of 42 Pages
<PAGE>
Upon the consummation of the transactions contemplated under the
Disposition Agreement, C2000 and Sub will no longer hold any beneficial
interest in any securities of the Issuer, and Listen Group will hold 54% of
the issued and outstanding Common Stock. It is anticipated that the
closing under the Disposition Agreement will occur before the end of July
1998. Listen Group is a Delaware limited liability company formed by the
Issuer's senior management, Alexander C. Kramer, Jr. (chief executive
officer) and Jon D. Jensen (chief financial officer).
The text of the Disposition Agreement is being filed herewith as Exhibit L
to Schedule 13D and is hereby incorporated by reference in answer to Item 6
of this Amendment No. 5. Section numbers used in this Item 6 refer to
section numbers in the Disposition Agreement.
The Disposition Agreement is described below. This summary description
is, however, qualified in its entirety by reference to the text of the
Disposition Agreement, filed herewith as Exhibit L.
Section 2.2 provides that at the closing, Listen Group shall (i) pay to Sub
the aggregate purchase price of $1.00 for all of Sub's Common Stock and
(ii) make, on behalf of sub, an insurance payment for a six-year liability
run-off policy providing certain protections against losses of C2000 and
Sub, which payments together shall constitute Listen Group's aggregate
purchase price for such Common Stock.
Section 2.3 provides that, at the Closing, Sub shall deliver to the Issuer
certificates or other proper documentation evidencing the Preferred Stock,
Achievement Warrants and the Maintenance Option, in each case, free and
clear of any and all liens and encumbrances, to be deemed a contribution to
the capital of the Issuer. Pursuant to Section 2.4, C2000 shall pay to the
Issuer $3,000,000, such payment to be deemed a contribution to the capital
of the Issuer.
Section 3, Section 4, Section 5 and Section 6 set forth certain
representations and warranties of the Issuer, C2000, Sub and Listen Group,
respectively.
Section 7.3 provides that the Issuer shall retain a financial adviser,
which is expected to be L.H. Friend, Weinress, Frankson & Presson, Inc.
(the "Financial Advisor") to deliver a letter setting forth the opinion of
such Financial Advisor that the Issuer is reasonably likely to remain a
viable business for at least one year subsequent to the consummation of the
transactions contemplated in the Disposition Agreement. The Financial
Advisor's letter shall be satisfactory in form and substance to C2000 and
it shall be expressly stated therein that the Issuer's Board of Directors,
C2000 and Sub may rely upon such letter.
Under Section 7.4, the Issuer and Listen Group agree to use their best
efforts to obtain, prior to the closing, the release of C2000 and Sub from
certain specified guarantees relating to the Issuer's vendors.
Section 7.5(a) provides that at all times after the closing, the Issuer and
Listen Group, jointly and severally, shall, to the fullest extent permitted
by Law, indemnify C2000 and Sub (and their respective Affiliates and their
respective shareholders, directors, officers, employees, counsel,
consultants, agents and representatives) and each of the Issuer's Directors
designated to the Board by C2000 (Dr. Harry Krischik, Manfred Guenzel,
Page 6 of 42 Pages
<PAGE>
Richard Obermaier or Anton Roedl (the "2000 Designees"), from and against
certain specified losses that arise out of or are based upon any action
taken, or any omission to take action, prior to the closing date, by any of
the C2000 Designees in his capacity as a Director of the Issuer.
Section 7.6(a) provides that at all times after the closing the Issuer and
Listen Group shall, jointly and severally, to the fullest extent permitted
by Law, indemnify C2000 and Sub and their affiliates from and against
certain specified losses that arise out of or are based upon any action
taken, or any omission to take action, after the closing by the Issuer, by
any officer or Director of the Issuer, or by Listen Group (or any of their
respective affiliates). Section 7.6(b) provides that for a period of no
less than six years after the closing, Listen Group shall cause the Issuer
to maintain in effect a liability run-off policy, as described in Schedule
7.6 of the Disposition Agreement.
Section 7.7 provides that for a period of 18 months after the closing date,
the Issuer shall not, by means of open-market transactions or private
purchases or in any other manner, repurchase or otherwise acquire any
shares of Common Stock from any stockholder of the Issuer unless all of the
unaffiliated directors, by resolution, determine in advance of such
repurchase or acquisition that the transaction would be entirely and
intrinsically fair to the Issuer and to the minority stockholders, taken as
a whole.
Section 7.8 provides that upon Sub's contribution to the Issuer of the
Preferred Stock at the closing, the Issuer shall reserve 6,700,000 shares
of Common Stock, issuable to employees of the Issuer pursuant to stock or
stock-based benefit plans to be established by the Issuer after the
Closing.
Pursuant to Section 8.3, all of the C2000 Designees shall resign from the
Issuer's Board of Directors, effective as of the closing. Pursuant to
Section 8.4, C2000 and Sub shall cause all intercompany loans and
receivables against the Issuer, including accrued interest, to be forgiven,
effective as of the closing. Section 8.5 provides that C2000 shall cause
all of the Preferred Stock, Achievement Warrants and the Maintenance Option
to be delivered at the closing to the Issuer; C2000 and Sub shall waive all
rights to receive any dividends payable or accrued as of the closing date
with respect to the Preferred Stock. Section 8.6 provides that C2000 shall
promptly make a $3,000,000 capital contribution by wire transfer to the
Issuer on the closing date.
Section 9.3 provides that for a period of two years after the Closing,
Listen Group shall use its best efforts to cause no fewer than two persons
who are not affiliates of Listen Group or the Issuer or any officer or
employee of any of them to be nominated and elected to the Board of
Directors of the Issuer. Section 9.4 provides that for a period of two
years after the Closing Date, in all director elections, Listen Group and
its affiliates shall vote all of their Common Stock (and any other voting
securities) in all Board elections in such a way as to cause no fewer than
two unaffiliated directors to be serving on the Issuer's Board at all
times. Pursuant to Section 9.5(a) provides that, except as otherwise
expressly permitted by such Section, Listen Group and its affiliates shall
not for a period of two years after the closing date, acquire, directly or
indirectly, any additional Common Stock (or other voting securities of the
Issuer) beyond the Permitted Percentage (defined to mean, at any given
time, a percentage equal to the percentage of all voting securities of the
Page 7 of 42 Pages
<PAGE>
Issuer that were held by Listen Group as of the Closing. Section 9.5(b)
provides that notwithstanding any other provision of the Disposition
Agreement, Listen Group and its affiliates may acquire additional shares of
Common Stock (or other voting securities of the Issuer) at any time if, and
only if, all of the unaffiliated directors, by resolution, determine in
advance of such acquisition that the transaction would be entirely and
intrinsically fair to the Issuer and to the minority stockholders, taken as
a whole.
Section 13.1 provides that after the closing, subject to certain specified
limitations, the Issuer shall indemnify C2000, Sub and Listen Group and
their respective affiliates against and in respect of losses relating to
(a) the inaccuracy of any representation or warranty made by the Issuer in
the Disposition Agreement and (b) the breach by the Issuer of any agreement
or covenant contained in the Disposition Agreement.
Section 13.2 provides that after the closing, subject to certain specified
limitations, C2000 and Sub shall indemnify the Issuer and Listen Group and
their respective affiliates against and in respect of losses relating to
(a) the inaccuracy of any representation or warranty made by C2000 or Sub
in the Disposition Agreement and (b) the breach by C2000 or Sub of any
agreement or covenant contained in the Disposition Agreement.
Section 13.3 provides that after the closing, subject to certain specified
limitations, Listen Group shall indemnify the Issuer, C2000 and Sub and
their respective affiliates against and in respect of losses relating to
(a) the inaccuracy of any representation or warranty made by Listen Group
in the Disposition Agreement and (b) the breach by Listen Group of any
agreement or covenant contained in the Disposition Agreement.
The Disposition Agreement contains other terms and conditions, as set forth
in full in Exhibit L of this Amendment No. 5.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
Item 7 of Schedule 13D is hereby amended by the addition of Exhibit L.
Exhibit L: Disposition and Reorganization Agreement, dated July 2, 1998, by
and among the Issuer, Computer 2000 AG, Sub and The Listen Group
LLC.
PAGE 8 OF 42 PAGES
<PAGE>
SCHEDULE I
Schedule I of Schedule 13D is hereby amended by the deletion of the lists
of directors and executive officers of Kloeckner & Co. AG, Bayernwerk AG
and VIAG AG.
PAGE 9 OF 42 PAGES
<PAGE>
SCHEDULE II
Schedule 13D is hereby amended by the addition of Schedule II:
TECH DATA CORPORATION
TECH DATA BOARD OF DIRECTORS
Name: Charles E. Adair
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: President of Adair & Associates, Inc. and President of
Kowaliga Capital, Inc.
Citizenship: United States
Name: Daniel M. Doyle
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Chief Executive Officer and Director of Danka Business
Systems PLC.
Citizenship: United States
Name: Donald F. Dunn
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Director of Proffitt's Inc.
Citizenship: United States
Name: Jeffrey P. Howells
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Executive Vice President and Chief Financial Officer of Tech
Data Corporation.
Citizenship: United States
Page 10 of 42 Pages
<PAGE>
Name: Anthony A. Ibarguen
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: President and Chief Operating Officer of Tech Data
Corporation
Citizenship: United States
Name: Edward C. Raymund
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Chairman Emeritus of Tech Data Corporation
Citizenship: United States
Name: Steven A. Raymund
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Chief Executive Officer and Chairman of the Board of Tech
Data Corporation.
Citizenship: United States
Name: David M. Upton
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Faculty member of Harvard Business School; Director of KH
Systems, Inc.
Citizenship: United States
Name: John Y. Williams
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Managing Director of Grubb & Williams, Ltd.; Managing
Director of Equity-South Advisors, LLC.
Citizenship: United States
Page 11 of 42 Pages
<PAGE>
TECH DATA EXECUTIVE OFFICERS
Name: Steven A. Raymund
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Chief Executive Officer
Citizenship: United States
Name: Anthony A. Ibarguen
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: President and Chief Operating Officer
Citizenship: United States
Name: Jeffrey P. Howells
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Executive Vice President and Chief Financial Officer
Citizenship: United States
Name: Peggy K. Caldwell
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Senior Vice President of Sales
Citizenship: United States
Name: Timothy J. Curran
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Senior Vice President of Sales
Citizenship: United States
Page 12 of 42 Pages
<PAGE>
Name: Lawrence W. Hamilton
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Senior Vice President of Human Resources
Citizenship: United States
Name: Gerald M. Labie
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: President and Managing Director of European Operations
Citizenship: United States
Name: H. John Lochow
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Senior Vice President and Chief Information Officer
Citizenship: United States
Name: Yuda Saydun
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Senior Vice President and General Manager-Latin America
Citizenship: United States
Name: Joseph B. Trepani
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Senior Vice President and Corporate Controller
Citizenship: United States
Name: Theodore F. Augustine
Page 13 of 42
<PAGE>
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Vice President of Distribution and Logistics
Citizenship: United States
Name: Patrick O. Connelly
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Vice President of Worldwide Credit Services
Citizenship: United States
Name: Charles V. Dannewitz
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Vice President of Taxes
Citizenship: United States
Name: Arthur W. Singleton
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Vice President, Treasurer and Secretary
Citizenship: United States
Name: David R. Vetter
Address: c/o Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Occupation/
Employment: Vice President and General Counsel
Citizenship: United States
PAGE 14 OF 42 PAGES
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: July 6, 1998
COMPUTER 2000 AG
By: /s/ Dr. Harry Krischik
Name: Dr. Harry Krischik
Title: Member of the Executive Board
By: /s/ Manfred Guenzel
Name: Manfred Guenzel
Title: Member of the Executive Board
COMPUTER 2000, INC.
By: /s/ Martin E. Loeffler
Name: Martin E. Loeffler
Title: President
By: /s/ Richard E. Obermaier
Name: Richard E. Obermaier
Title: Secretary
<PAGE>
EXHIBIT L TO SCHEDULE 13D
Disposition and Reorganization Agreement, dated July 2, 1998, by and among
AmeriQuest Technologies, Inc., Computer 2000 AG, Computer 2000, Inc. and
The Listen Group LLC.
PAGE 16 OF 42 PAGES
<PAGE>
DISPOSITION AND REORGANIZATION AGREEMENT
THIS DISPOSITION AND REORGANIZATION AGREEMENT ("Agreement"),
dated the 2nd day of July, 1998, by and among AMERIQUEST TECHNOLOGIES,
INC., a Delaware corporation (the "Company"); COMPUTER 2000 AG, a German
corporation ("Computer 2000"); COMPUTER 2000, INC., a Delaware corporation
and wholly owned subsidiary of Computer 2000 ("Seller"); and THE LISTEN
GROUP PARTNERS LLC, a Delaware limited liability company ("Purchaser"),
W I T N E S S E T H :
WHEREAS, Seller is the record and beneficial owner of (a)
36,349,878 shares of the issued and outstanding shares of common stock, par
value $0.01 per share of the Company (the "Common Stock") representing
approximately 54% of the issued and outstanding shares of Common Stock; (b)
300,000 shares of Series H Cumulative Convertible Preferred Stock, par
value $0.01 per share, convertible into 41,958,042 shares of Common Stock
(the "Preferred Stock") representing 100% of the issued and outstanding
shares of Preferred Stock; (c) achievement warrants equivalent to 7,035,280
shares of Common Stock (the "Achievement Warrants"); and (d) a maintenance
option equivalent to 2,357,235 shares of Common Stock; and
WHEREAS, Computer 2000 has agreed to forgive certain intercompany
indebtedness by means of a contribution of such indebtedness to the capital
of the Company, subject to the terms and conditions set forth herein;
WHEREAS, Computer 2000 has agreed to make a cash contribution to
the capital of the Company in the amount of Three Million U.S. Dollars
($3,000,000), subject to the terms and conditions set forth herein;
WHEREAS, Seller has agreed to contribute all of its shares of
Preferred Stock to the capital of the Company, subject to the terms and
conditions set forth herein;
WHEREAS, Seller has agreed to waive all rights to receive any
dividends payable or accrued as of the Closing Date with respect to the
Preferred Stock, subject to the terms and conditions set forth herein;;
WHEREAS, Seller has agreed, as of the Closing Date, to contribute
all of its Achievement Warrants and the Maintenance Option to the capital
of the Company, and the Company has agreed to cause the Achievement
Warrants and the Maintenance Option to be cancelled as of the Closing Date,
subject to the terms and conditions set forth herein;
WHEREAS, Seller desires to sell to Purchaser 36,349,878 shares of
Common Stock, constituting 54% of the issued and outstanding Common Stock
Page 17 of 42 Pages
<PAGE>
of the Company (the "Shares") and Purchaser desires to purchase the Shares,
subject to the terms and conditions set forth herein;
WHEREAS, in partial consideration for the purchase of the Shares,
Purchaser shall purchase a Six-Year Run-Off Insurance Policy (as defined
below) with a premium amount of approximately Two Hundred Thousand Dollars
($200,000) (the "Insurance Payment");
WHEREAS, the Company and Purchaser have agreed to cause Computer
2000 to be released from certain guarantees as of the Closing Date, subject
to the terms and conditions set forth herein; and
WHEREAS, the Company has retained L.H. Friend, Weinress, Frankson
& Presson, Inc. as its financial advisor (the "Financial Adviser") to
deliver an opinion as to the viability of the Company subsequent to the
consummation of the transactions contemplated herein (the "Comfort
Letter"),
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Company, Computer 2000, Seller and
Purchaser, intending to be legally bound, hereby agree as follows:
SECTION 1. SALE OF THE SHARES.
Subject to the terms and conditions hereof, at the Closing (as
hereafter defined), Seller shall sell, convey and assign to Purchaser, and
Purchaser shall purchase from Seller, good and marketable title to all of
the Shares.
SECTION 2. THE CLOSING.
2.1. CLOSING; CLOSING DATE. The closing of the transactions
contemplated hereby (the "Closing") shall be held at 10:00 a.m. on July 16,
1998 at the offices of Rogers & Wells LLP, 200 Park Avenue, New York, New
York 10166, or at such other time and date as the parties may mutually
agree in writing (the "Closing Date").
2.2. PAYMENT FOR SHARES. At the Closing, Purchaser shall (i) pay
to Seller the aggregate purchase price of One U.S. Dollar ($1.00) and (ii)
make, on behalf of Seller, the Insurance Payment to the insurance company
providing such insurance coverage, which payments together shall constitute
Purchaser's aggregate purchase price for the Shares.
2.3. DELIVERY OF SHARES. At the Closing, Seller shall deliver to
Purchaser a certificate or certificates evidencing the Shares, with stock
powers duly executed and attested, sufficient to vest in Purchaser good and
marketable title to the Shares, free and clear of any and all liens and
encumbrances.
2.4. PREFERRED STOCK; WARRANTS; OPTION. At the Closing, Seller
shall deliver to the Company certificates or other proper documentation
Page 18 of 42 Pages
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evidencing the Preferred Stock, Achievement Warrants and the Maintenance
Option, in each case, free and clear of any and all liens and encumbrances,
to be deemed a contribution to the capital of the Company.
2.5. SELLER'S CONTRIBUTION TO CAPITAL. At the Closing,
Computer 2000 shall pay to the Company or for the benefit of the Company
Three Million U.S. Dollars ($3,000,000) by wire transfer of immediately
available funds to such account or accounts as the Company shall specify,
such payment to be deemed a contribution to the capital of the Company.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents, warrants and covenants to Computer 2000, Seller and
Purchaser as follows:
3.1. ORGANIZATION. The Company is a corporation duly organized,
validly existing and in good standing under the Laws of the State of
Delaware. The Company has full corporate power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
3.2. AUTHORITY. The execution and delivery by the Company of
this Agreement, and the performance by the Company of its obligations
hereunder, have been duly and validly authorized by the Board of Directors
of the Company, no other corporate action on the part of the Company or its
stockholders being necessary. This Agreement has been duly and validly
executed and delivered by the Company and constitutes a legal, valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, moratorium, reorganization and other similar laws
relating to or affecting the enforcement of creditors' rights generally.
3.3. NO CONFLICTS. The execution and delivery by the Company of
this Agreement do not, and the performance by the Company of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby will not:
(a) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the certificate of incorporation
or by-laws or other comparable corporate charter document of the Company;
(b) conflict with or result in a violation or breach of any
term or provision of any Law or Order applicable to the Company or any of
its assets; or
(c) conflict with or result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default
under, any Contracts or Other Agreements to which the Company is a party or
by which any of its assets are bound.
3.4. LEGAL PROCEEDINGS. There are no Actions or Proceedings
pending or, to the Knowledge of the Company, threatened relating to or
affecting the Company or any of its assets which question the legality or
validity of this Agreement or the transactions contemplated herein, or any
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action taken or to be taken in connection herewith, or which seeks to
prevent the consummation of any transaction contemplated hereby by
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated herein.
3.5. CORPORATE APPROVAL. This Agreement and the transactions
contemplated hereby have been approved by the disinterested Directors of
the Company in accordance with Section 144(a) of the Delaware General
Corporation Law.
3.6. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in this Section 3 shall be true and
correct in all material respects on and as of the Closing Date with the
same force and effect as though such representations and warranties had
been made on and as of the Closing Date.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF COMPUTER 2000.
Computer 2000 hereby represents, warrants and covenants to the Company and
Purchaser as follows:
4.1. ORGANIZATION. Computer 2000 is a corporation duly
organized, validly existing and in good standing under the Laws of the
Federal Republic of Germany. Computer 2000 has full corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby.
4.2. AUTHORITY. The execution and delivery by Computer 2000 of
this Agreement, and the performance by Computer 2000 of its obligations
hereunder, have been duly and validly authorized by the Vorstand and
Aufsichtsrat of Computer 2000, no other corporate action on the part of
Computer 2000 or its stockholders being necessary. This Agreement has been
duly and validly executed and delivered by Computer 2000, and constitutes a
legal, valid and binding obligation of Computer 2000, enforceable against
Computer 2000 in accordance with its terms, except as such enforcement may
be limited by bankruptcy, insolvency, moratorium, reorganization and other
similar laws relating to or affecting the enforcement of creditors' rights
generally.
4.3. NO CONFLICTS. The execution and delivery by Computer 2000
of this Agreement do not, and the performance by Computer 2000 of its
obligations under this Agreement and the consummation of the transactions
contemplated hereby will not:
(a) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the Satzung or other corporate
charter documents of Computer 2000;
(b) conflict with or result in a violation or breach of any
term or provision of any Law or Order applicable to Computer 2000 or any of
its assets; or
(c) conflict with or result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default
under, any Contracts or Other Agreements to which Computer 2000 is a party
or by which any of its assets are bound.
Page 20 of 42
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4.4. LEGAL PROCEEDINGS. There are no Actions or Proceedings
pending or, to the Knowledge of Computer 2000, threatened relating to or
affecting Computer 2000 or any of its assets which question the legality or
validity of this Agreement or the transactions contemplated herein, or any
action taken or to be taken in connection herewith, or which seeks to
prevent the consummation of any transaction contemplated hereby by
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated herein.
4.5. TITLE. The endorsement and delivery by Seller in accordance
with the provisions of this Agreement of a certificate or certificates
evidencing the Shares will vest in Purchaser good title to the Shares, free
and clear of all liens and encumbrances.
4.6. NO OTHER COMPANY SECURITIES. Following the consummation of
the transactions contemplated under this Agreement, neither Computer 2000
nor any Affiliate of Computer 2000 will own any debt or equity securities
of the Company or any options, warrants or other rights to acquire equity
securities of the Company.
4.7. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Computer 2000 contained in this Section 4 shall be true and
correct in all material respects on and as of the Closing Date with the
same force and effect as though such representations and warranties had
been made and as of the Closing Date.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER.
5.1. ORGANIZATION. Seller is a corporation duly organized,
validly existing and in good standing under the Laws of the State of
Delaware. Seller has full corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
5.2. AUTHORITY. The execution and delivery by Seller of this
Agreement, and the performance by Seller of its obligations hereunder, have
been duly and validly authorized by the board of directors of Seller, no
other corporate action on the part of Seller or its stockholders being
necessary. This Agreement has been duly and validly executed and delivered
by Seller and constitutes a legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, moratorium,
reorganization and other similar laws relating to or affecting the
enforcement of creditors' rights generally.
5.3. NO CONFLICTS. The execution and delivery by Seller of this
Agreement do not, and the performance by Seller of its obligations under
this Agreement and the consummation of the transactions contemplated hereby
will not:
(a) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the certificate of incorporation
or by-laws or other comparable corporate charter document of Seller;
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(b) conflict with or result in a violation or breach of any
term or provision of any Law or Order applicable to Seller or any of its
assets; or
(c) conflict with or result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default
under, any Contracts or Other Agreements to which Seller is a party or by
which any of its assets are bound.
5.4. LEGAL PROCEEDINGS. There are no Actions or Proceedings
pending or, to the Knowledge of Seller, threatened relating to or affecting
Seller or any of its assets which question the legality or validity of this
Agreement or the transactions contemplated herein, or any action taken or
to be taken in connection herewith, or which seeks to prevent the
consummation of any transaction contemplated hereby by restraining,
enjoining or otherwise prohibiting or making illegal the consummation of
any of the transactions contemplated herein.
5.5. TITLE. The endorsement and delivery by Seller in accordance
with the provisions of this Agreement of a certificate or certificates
evidencing the Shares will vest in Purchaser good title to the Shares, free
and clear of all liens and encumbrances.
5.6. NO OTHER COMPANY SECURITIES. Following the consummation of
the transactions contemplated under this Agreement, neither Seller nor any
Affiliate of Seller will own any debt or equity securities of the Company
or any options, warrants or other rights to acquire equity securities of
the Company.
5.7. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Seller contained in this Section 5 shall be true and correct
in all material respects on and as of the Closing Date with the same force
and effect as though such representations and warranties had been made and
as of the Closing Date.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents, warrants and covenants to the Company, Computer 2000
and Seller as follows:
6.1. ORGANIZATION. Purchaser is a limited liability company duly
organized, validly existing and in good standing under the Delaware Limited
Liability Company Act. Purchaser has full power and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby.
6.2. AUTHORITY. The execution and delivery by Purchaser of this
Agreement, and the performance by Purchaser of its obligations hereunder,
have been duly and validly authorized by the Purchaser, no other action on
the part of Purchaser being necessary. This Agreement has been duly and
validly executed and delivered by Purchaser and constitutes a legal, valid
and binding obligation of Purchaser, enforceable against Purchaser in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, moratorium, reorganization and other similar laws
relating to or affecting the enforcement of creditors' rights generally.
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6.3. NO CONFLICTS. The execution and delivery by Purchaser of
this Agreement do not, and the performance by Purchaser of its obligations
under this Agreement and the consummation of the transactions contemplated
hereby will not:
(a) conflict with or result in a violation or breach of any
of the terms, conditions or provisions of the certificate of formation,
limited liability agreement or other comparable documents of Purchaser;
(b) conflict with or result in a violation or breach of any
term or provision of any Law or Order applicable to Purchaser or any of its
assets; or
(c) conflict with or result in a violation or breach of,
constitute (with or without notice or lapse of time or both) a default
under, any Contracts or Other Agreements to which Seller is a party or by
which any of its assets are bound.
6.4. LEGAL PROCEEDINGS. There are no Actions or Proceedings
pending or, to the Knowledge of Purchaser, threatened relating to or
affecting Purchaser or any of its assets which question the legality or
validity of this Agreement or the transactions contemplated herein, or any
action taken or to be taken in connection herewith, or which seeks to
prevent the consummation of any transaction contemplated hereby by
restraining, enjoining or otherwise prohibiting or making illegal the
consummation of any of the transactions contemplated herein.
6.5. PURCHASER'S KNOWLEDGE AND EXPERIENCE. Purchaser represents
that its knowledge and experience in financial and business matters are
such that it is capable of evaluating the merits and risks of its purchase
of the Shares, as contemplated by this Agreement.
6.6. REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Purchaser contained in this Section 6 shall be true and
correct in all material respects on and as of the Closing Date with the
same force and effect as though such representations and warranties had
been made and as of the Closing Date.
SECTION 7. COVENANTS OF THE COMPANY AND PURCHASER.
7.1. COOPERATION. From the date hereof through the Closing Date,
the Company agrees that it will:
(a) do or cause to be done all things necessary to ensure
that the Company's representations and warranties will be true and correct
at and as of the Closing Date as though made on and as of the Closing Date;
and
(b) promptly advise Computer 2000 and Purchaser in writing
of any event, condition or circumstance occurring from the date hereof
through the Closing Date that would constitute a violation or breach of
this Agreement, or constitute the failure of any condition to the
obligations of the Company.
Page 23 of 42 Pages
<PAGE>
7.2. GOVERNMENTAL PERMITS AND APPROVALS. The Company shall use
its best efforts to obtain all permits and approvals from any Governmental
Authority or Regulatory Body required to be obtained by the Company for the
lawful consummation of the Closing.
7.3. COMFORT LETTER. At the Company's sole expense, the Company
shall retain the Financial Adviser, which shall be a reputable investment
bank satisfactory to Computer 2000 and Purchaser. The Company shall use
its best efforts to cause the Financial Adviser to deliver the Comfort
Letter, which shall set forth the opinion of the Financial Advisor that the
Company is reasonably likely to remain a viable business for at least one
year subsequent to the consummation of the transactions contemplated
herein. The Comfort Letter shall be satisfactory in form and substance to
Computer 2000 and it shall be expressly stated therein that the Company's
Board of Directors, Computer 2000 and Seller may rely upon such Comfort
Letter.
7.4. RELEASES. The Company and Purchaser agree to use their best
efforts to obtain, prior to the Closing, the release of Computer 2000
and/or Seller from any and all liabilities, debts and obligations,
guarantees and suretyships, including but not limited to those relating to
the $5,000,000 guarantee from Computer 2000 in support of the Company's
line of credit with IBMCC and Computer 2000's guarantee of certain amounts
to the Company's vendors, in each case as more fully described in Schedule
7.4 (collectively, the "Releases"). The Company's obtaining of all
Releases, and the delivery to Computer 2000 prior to the Closing of
evidence of such Releases, in form and substance satisfactory to Computer
2000, shall be a condition precedent to the obligation of Computer 2000 and
Seller to proceed to Closing.
7.5. INDEMNIFICATION OF COMPUTER 2000 DESIGNEES.
(a) At all times after the Closing, the Company and
Purchaser agree, jointly and severally, to the fullest extent permitted by
Law, to indemnify, defend and hold harmless Computer 2000 and Seller (and
their respective Affiliates and their respective shareholders, directors,
officers, employees, counsel, consultants, agents and representatives) and
each of Dr. Harry Krischik, Manfred Guenzel, Richard Obermaier or Anton
Roedl (collectively, the "Computer 2000 Designees"), from and against all
Losses that arise out of or are based upon any action taken, or any
omission to take action, prior to the Closing Date, by any of the Computer
2000 Designees in his capacity as a Director of the Company.
(b) The Company shall not, and Purchaser shall not cause
the Company to, amend or repeal any provision of the Company's articles of
incorporation or bylaws, as in the effect as of the date of this Agreement,
that purports to indemnify or otherwise provide legal protection to the
Company's Directors, including but not limited to the Computer 2000
Designees.
7.6. INDEMNIFICATION OF COMPUTER 2000 AND SELLER.
(a) At all times after the Closing, the Company and
Purchaser agree, jointly and severally, to the fullest extent permitted by
Law, to indemnify, defend and hold harmless Computer 2000 and Seller (and
Page 24 of 42 Pages
<PAGE>
their respective Affiliates and their respective shareholders, directors,
officers, employees, counsel, consultants, agents and representatives) from
and against all Losses that arise out of or are based upon any action
taken, or any omission to take action, after the Closing by the Company, by
any officer or Director of the Company, or by Purchaser (or any of their
respective Affiliates and their respective shareholders, directors,
officers, employees, counsel, consultants, agents and representatives).
(b) For a period of no less than six years after the
Closing, the Purchaser shall cause the Company to maintain in effect a
liability run-off policy, as described in Schedule 7.6, or equivalent
insurance with substitute insurers (the "Six-Year Run-Off Policy").
7.7. CANCELLATION. The Company shall cause all of the
Achievement Warrants and the Maintenance Option to be cancelled upon
delivery thereof by Computer 2000, effective as of the Closing.
7.8. NO COMMON STOCK REPURCHASE. For a period of 18 months after
the Closing Date, the Company shall not, by means of open-market
transactions or private purchases or in any other manner, repurchase or
otherwise acquire any shares of Common Stock from any stockholder of the
Company unless all of the Unaffiliated Directors, by resolution, determine
in advance of such repurchase or acquisition that the transaction would be
entirely and intrinsically fair to the Company and to the minority
stockholders, taken as a whole.
7.9. PREFERRED STOCK. Upon Seller's contribution to the Company
of the shares of Preferred Stock pursuant to this Agreement, the Company
shall reserve the equivalent of 6,700,000 shares of Common Stock issuable
upon the conversion of of such Preferred Stock for reissuance to employees
pursuant to stock or stock-based benefit plans to be established by the
Company after the Closing.
SECTION 8. COVENANTS OF COMPUTER 2000 AND SELLER.
8.1. COOPERATION. From the date hereof through the Closing Date,
each of Computer 2000 and Seller agrees that it will:
(a) do or cause to be done all things necessary to ensure
that the respective representations and warranties of Computer 2000 and
Seller will be true and correct at and as of the Closing Date as though
made on and as of the Closing Date; and
(b) promptly advise Purchaser and the Company in writing of
any event, condition or circumstance occurring from the date hereof through
the Closing Date that would constitute a violation or breach of this
Agreement, or constitute the failure of any condition precedent to the
respective obligations of Computer 2000 or Seller
8.2. GOVERNMENTAL PERMITS AND APPROVALS. Each of Computer 2000
and Seller shall use its best efforts to obtain all permits and approvals
from any Governmental Authority or Regulatory Body required to be obtained
by Computer 2000 or Seller for the lawful consummation of the Closing.
Page 25 of 42 Pages
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8.3. RESIGNATION OF COMPUTER 2000 DESIGNEES. Computer 2000 shall
cause each of the Computer 2000 Designees to resign from the Company's
Board of Directors, effective as of the Closing.
8.4. FORGIVENESS OF INTERCOMPANY DEBT. Computer 2000 and Seller
shall cause all intercompany loans and receivables against the Company,
including accrued interest, to be forgiven, effective as of the Closing.
8.5. WAIVER OF ACCRUED DIVIDENDS. Computer 2000 shall cause all
of the Preferred Stock, Achievement Warrants and the Maintenance Option to
be delivered at the Closing to the Company. Computer 2000 and Seller shall
waive all rights to receive any dividends payable or accrued as of the
Closing Date with respect to the Preferred Stock.
8.6. CAPITAL CONTRIBUTION. The $3,000,000 capital contribution
by Computer 2000 shall promptly be wire transferred to a United States bank
account for contribution to the Company on the Closing Date.
SECTION 9. ADDITIONAL COVENANTS OF PURCHASER.
9.1. COOPERATION. From the date hereof through the Closing Date,
Purchaser agrees that it will:
(a) do or cause to be done all things necessary to ensure
that Purchaser's representations and warranties will be true and correct at
and as of the Closing Date as though made on and as of the Closing Date;
and
(b) promptly advise Computer 2000 and the Company in
writing of any event, condition or circumstance occurring from the date
hereof through the Closing Date that would constitute a violation or breach
of this Agreement, or constitute the failure of any condition to the
obligations of Purchaser.
9.2. GOVERNMENTAL PERMITS AND APPROVALS. Purchaser shall use its
best efforts to obtain all permits and approvals from any Governmental
Authority or Regulatory Body required to be obtained by Purchaser for the
lawful consummation of the Closing.
9.3. UNAFFILIATED DIRECTORS. For a period of two years after the
Closing, Purchaser shall use its best efforts to cause no fewer than two
persons who are not Affiliates of Purchaser or the Company or their
respective Affiliates or any officer or employee of any of them to be
nominated and elected to the Board of Directors of the Company (each, an
"Unaffiliated Director").
9.4. VOTING ARRANGEMENTS. For a period of two years after the
Closing Date, in all director elections, Purchaser and its Affiliates shall
vote all of their Common Stock and any other voting securities in all Board
elections in such a way as to cause no fewer than two Unaffiliated
Directors to be serving on the Company's Board at all times.
Page 26 of 42 Pages
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9.5. STANDSTILL PROVISIONS.
(a) Except as otherwise expressly permitted by this Section
9.5, Purchaser and its Affiliates shall not for a period of two years after
the Closing Date, acquire, directly or indirectly, any additional Common
Stock or other voting securities of the Company beyond the Permitted
Percentage. As used in this Agreement, the "Permitted Percentage" at any
given time shall be equal to the percentage of all voting securities of the
Company that were held by Purchaser as of the Closing; provided, however,
that notwithstanding this Section 9.5(a), Preferred Stock may be reissued
to employees pursuant to stock or stock-based benefit plans of the Company,
as provided in Section 7.9 of this Agreement.
(b) Notwithstanding any other provision of this Agreement,
Purchaser and its Affiliates may acquire additional shares of Common Stock
or other voting securities of the Company at any time if, and only if, all
of the Unaffiliated Directors, by resolution, determine in advance of such
acquisition that the transaction would be entirely and intrinsically fair
to the Company and to the minority stockholders, taken as a whole.
9.6. CONCERNING THE SHARES. After the Closing Date, Purchaser
will hold the Shares indefinitely unless they are subsequently registered
under the Securities Act of 1933, as amended, or an exemption from
registration is available.
SECTION 10. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY.
The obligations of the Company hereunder are, at the option of the Company,
subject to the satisfaction on or prior to the Closing Date of the
following conditions:
10.1. REPRESENTATIONS AND WARRANTIES ON CLOSING DATE. All
representations and warranties of the other parties contained in this
Agreement or in any document or certificate delivered by any party to the
Company pursuant to this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made and as
of the Closing Date.
10.2. TERMS, COVENANTS AND CONDITIONS. All the terms, covenants
and conditions of this Agreement to be complied with and performed by each
of the other parties on or prior to the Closing Date shall have been
complied with and performed in all material respects.
10.3. CONSENTS, APPROVALS, ETC. All consents, permits, approvals,
authorizations or orders of any court or Governmental Authority or
Regulatory Body necessary for the lawful consummation of the transactions
contemplated hereby shall have been obtained.
10.4. OFFICER'S CERTIFICATES. Each of the other parties to this
Agreement shall have delivered to the Company certificates, dated the
Closing Date, executed by its respective authorized executive officer,
stating that as of the Closing Date all of the respective representations
and warranties of such party contained in this Agreement are true and
Page 27 of 42 Pages
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correct in all material respects, that such party has performed all of its
respective obligations and covenants to be performed by it hereunder, and
that all of the conditions precedent to the obligations of such party
hereunder have been satisfied or waived by such party in writing.
10.5. LITIGATION. No action, suit or proceeding shall have been
instituted by or before any court or Governmental Authority or Regulatory
Body, or instituted or threatened by any Governmental Authority or
Regulatory Body, to restrain, or to modify in any material respect, or to
prevent the carrying out of the transactions contemplated by this
Agreement, or to seek damages or a discovery order in connection with such
transactions.
10.6. OPINIONS OF COUNSEL.
(a) The Company shall have received an opinion of J.
Britton Gourley, Jr., counsel to the Purchaser, dated the Closing Date,
substantially in the form appended hereto as Exhibit A.
(b) The Company shall have received an opinion of Rogers &
Wells LLP, counsel to Computer 2000 and Seller, dated the Closing Date,
substantially in the form appended hereto as Exhibit B.
10.7. COMFORT LETTER. The Financial Advisor shall have delivered
the Comfort Letter, dated as of the Closing Date, in form and substance
satisfactory to the Company.
10.8. COMPUTER 2000 CONTRIBUTION TO CAPITAL. Computer 2000 shall
have paid to or for the benefit of the Company Three Million U.S. Dollars
($3,000,000) by wire transfer of immediately available funds to an account
or accounts specified by the Company.
10.9. INSURANCE PAYMENT. Purchaser shall have made the Insurance
Payment.
10.10. FORGIVENESS OF INDEBTEDNESS. Computer 2000 and Seller
shall have caused all intercompany loans and receivables against the
Company, including accrued interest, to be forgiven, effective as of the
Closing Date, and Computer 2000 and Seller shall have delivered to the
Company evidence of all such forgiveness, in form and substance
satisfactory to the Company. Seller shall have waived all rights to
receive any dividends payable or accrued as of the Closing Date with
respect to the Preferred Stock.
10.11. DELIVERY OF CERTIFICATES. Seller shall have delivered
to the Company a certificate or certificates or other proper documentation
evidencing the Preferred Stock, Achievement Warrants and the Maintenance
Option, in each case, free and clear of any and all liens and encumbrances,
to be deemed a contribution to the capital of the Company.
10.12. EMPLOYMENT AGREEMENTS. Alexander C. Kramer and Jon D.
Jensen shall have waived the change-of-control provisions of their
respective Employment Agreements with respect to the transactions
contemplated by this Agreement.
Page 28 of 42 Pages
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SECTION 11. CONDITIONS PRECEDENT TO OBLIGATIONS OF COMPUTER 2000
AND SELLER
The obligations of Computer 2000 and Seller hereunder are, at the option of
Computer 2000 and Seller, respectively, subject to the satisfaction on or
prior to the Closing Date of the following conditions:
11.1. REPRESENTATIONS AND WARRANTIES ON CLOSING DATE. All
representations and warranties of the other parties contained in this
Agreement or in any document or certificate delivered by any party to
Computer 2000 or Seller pursuant to this Agreement shall be true and
correct in all material respects on and as of the Closing Date with the
same force and effect as though such representations and warranties had
been made and as of the Closing Date.
11.2. TERMS, COVENANTS AND CONDITIONS. All the terms, covenants
and conditions of this Agreement to be complied with and performed by each
of the other parties on or prior to the Closing Date shall have been
complied with and performed in all material respects.
11.3. CONSENTS, APPROVALS, ETC. All consents, permits, approvals,
authorizations or orders of any court or Governmental Authority or
Regulatory Body necessary for the lawful consummation of the transactions
contemplated hereby shall have been obtained.
11.4. OFFICER'S CERTIFICATES. Each of the other parties to this
Agreement shall have delivered to Computer 2000 and Seller certificates,
dated the Closing Date, executed by its respective authorized executive
officer, stating that as of the Closing Date all of the respective
representations and warranties of such party contained in this Agreement
are true and correct in all material respects, that such party has
performed all of its respective obligations and covenants to be performed
by it hereunder, and that all of the conditions precedent to the
obligations of such party hereunder have been satisfied or waived by such
party in writing.
11.5. LITIGATION. No action, suit or proceeding shall have been
instituted by or before any court or Governmental Authority or Regulatory
Body, or instituted or threatened by any Governmental Authority or
Regulatory Body, to restrain, or to modify in any material respect, or to
prevent the carrying out of the transactions contemplated by this
Agreement, or to seek damages or a discovery order in connection with such
transactions.
11.6. OPINIONS OF COUNSEL.
(a) Computer 2000 and Seller shall have received an opinion
of J. Britton Gourley, Jr., counsel to the Purchaser, dated the Closing
Date, substantially in the form appended hereto as Exhibit A.
(b) Computer 2000 and Seller shall have received an opinion
of Morgan, Lewis & Bockius LLP, counsel to the Company, dated the Closing
Date, substantially in the form appended hereto as Exhibit C.
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11.7. DIRECTOR NOMINATIONS. As of the Closing Date, no fewer than
two Unaffiliated Directors shall then be serving on the Company's Board of
Directors.
11.8. COMFORT LETTER. The Financial Advisor shall have delivered
the Comfort Letter, dated as of the Closing Date, in form and substance
satisfactory to Computer 2000.
11.9. RELEASES. Computer 2000 and Seller and their respective
Affiliates shall have been released from any and all liabilities, debts and
obligations, guarantees and suretyships relating to the business or assets
of the Company. The Company shall have delivered to Computer 2000 and
Seller evidence of all Releases, in form and substance satisfactory to
Computer 2000.
11.10. INSURANCE PAYMENT. Purchaser shall have made the
Insurance Payment.
11.11. PAYMENT FOR SHARES. Purchaser shall have paid the sum
of One U.S. Dollar ($1.00) to Seller in payment for the purchase of the
Shares.
11.12. CANCELLATION. The Company shall have caused the
Achievement Warrants and the Maintenance Option to be cancelled, effective
as of the Closing Date.
11.13. SIX-YEAR RUN-OFF POLICY. The Company shall have caused
the Six-Year Run-Off Policy to be in place, effective as of the Closing.
SECTION 12. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser hereunder are, at the option of Purchaser,
subject to the satisfaction on or prior to the Closing Date of the
following conditions:
12.1. REPRESENTATIONS AND WARRANTIES ON CLOSING DATE. All
representations and warranties of the other parties contained in this
Agreement or in any document or certificate delivered by any party to
Purchaser pursuant to this Agreement shall be true and correct in all
material respects on and as of the Closing Date with the same force and
effect as though such representations and warranties had been made and as
of the Closing Date.
12.2. TERMS, COVENANTS AND CONDITIONS. All the terms, covenants
and conditions of this Agreement to be complied with and performed by each
of the other parties on or prior to the Closing Date shall have been
complied with and performed in all material respects.
12.3. CONSENTS, APPROVALS, ETC. All consents, permits, approvals,
authorizations or orders of any court or Governmental Authority or
Regulatory Body necessary for the lawful consummation of the transactions
contemplated hereby shall have been obtained.
12.4. OFFICER'S CERTIFICATES. Each of the other parties to this
Agreement shall have delivered to Purchaser certificates, dated the Closing
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Date, executed by its respective authorized executive officer, stating that
as of the Closing Date all of the respective representations and warranties
of such party contained in this Agreement are true and correct in all
material respects, that such party has performed all of its respective
obligations and covenants to be performed by it hereunder, and that all of
the conditions precedent to the obligations of such party hereunder have
been satisfied or waived by such party in writing.
12.5. LITIGATION. No action, suit or proceeding shall have been
instituted by or before any court or Governmental Authority or Regulatory
Body, or instituted or threatened by any Governmental Authority or
Regulatory Body, to restrain, or to modify in any material respect, or to
prevent the carrying out of the transactions contemplated by this
Agreement, or to seek damages or a discovery order in connection with such
transactions.
12.6. OPINION OF COUNSEL.
(a) The Purchaser shall have received an opinion of Morgan,
Lewis & Bockius LLP, counsel to the Company, dated the Closing Date,
substantially in the form appended hereto as Exhibit C.
(b) The Purchaser shall have received an opinion of Rogers
& Wells LLP, counsel to Computer 2000 and Seller, dated the Closing Date,
substantially in the form appended hereto as Exhibit B.
12.7. COMPUTER 2000 CONTRIBUTION TO CAPITAL. Computer 2000 shall
have paid to or for the benefit of the Company Three Million U.S. Dollars
($3,000,000) by wire transfer of immediately available funds to an account
or accounts specified by the Company.
12.8. DIRECTOR RESIGNATIONS. Each of the Computer 2000 Designees
then sitting on the Board of Directors of the Company shall have submitted
his written resignation to the Company, effective as of the Closing,
conditional upon nothing other than the consummation of the transactions
contemplated hereby.
12.9. DELIVERY OF SHARES. Computer 2000 shall have delivered to
Purchaser a certificate or certificates evidencing the Shares, with stock
powers duly executed and attested, sufficient to vest in Purchaser good and
marketable title to the Shares, free and clear of any and all liens and
encumbrances.
12.10. DELIVERY OF CERTIFICATES. Computer 2000 shall have
delivered to the Company a certificate or certificates or other proper
documentation evidencing the Preferred Stock, Achievement Warrants and the
Maintenance Option, in each case, free and clear of any and all liens and
encumbrances, to be deemed a contribution to the capital of the Company.
12.11. FORGIVENESS OF INDEBTEDNESS. Computer 2000 shall have
caused all intercompany loans and receivables against the Company,
including accrued interest, to be forgiven, effective as of the Closing
Date, and Computer 2000 shall have delivered to Purchaser evidence of all
such forgiveness, in form and substance satisfactory to Purchaser.
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12. CANCELLATION. The Company shall have caused the
Achievement Warrants and the Maintenance Option to be cancelled, effective
as of the Closing Date. Seller shall have waived all rights to receive any
dividends payable or accrued as of the Closing Date with respect to the
Preferred Stock.
SECTION 13. INDEMNIFICATION.
13.1. INDEMNIFICATION BY THE COMPANY.
(a) After the Closing, subject to the limitations set forth
in Section 13.4 below, the Company hereby agrees to indemnify, hold
harmless and defend Computer 2000, Seller and Purchaser and their
respective Affiliates against and in respect of any and all Losses arising
out of or based upon or relating or pertaining in any way to:
(i) the inaccuracy of any representation or warranty
made by the Company in this Agreement or in the officer's certificate
delivered pursuant hereto; and
(ii) the breach by the Company of any agreement or
covenant contained in this Agreement.
13.2. INDEMNIFICATION BY COMPUTER 2000 AND SELLER.
(a) After the Closing, subject to the limitations set forth
in Section 13.4 below, Computer 2000 and Seller, jointly and severally,
hereby agree to indemnify, hold harmless and defend the Company and
Purchaser and their respective Affiliates against and in respect of any and
all Losses arising out of or based upon or relating or pertaining in any
way to:
(i) the inaccuracy of any representation or warranty
made by Computer 2000 or Seller in this Agreement or in the officer's
certificate delivered pursuant hereto; and
(ii) the breach by Computer 2000 of Seller of any
agreement or covenant contained in this Agreement.
13.3. INDEMNIFICATION BY PURCHASER.
(a) After the Closing, subject to the limitations set forth
in Section 13.4 below, Purchaser hereby agrees to indemnify, hold harmless
and defend the Company, Computer 2000 and Seller and their respective
Affiliates against and in respect of any and all Losses arising out of or
based upon or relating or pertaining in any way to:
(i) the inaccuracy of any representation or warranty
made by Purchaser in this Agreement or in the officer's certificate
delivered pursuant hereto; and
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(ii) the breach by Purchaser of any agreement or
covenant contained in this Agreement.
13.4. LIMITATIONS ON INDEMNIFICATION.
(a) Liability for any Indemnifying Party (as defined below)
to indemnify, hold harmless or defend any Indemnified Party (as defined
below) under this Agreement (collectively, "Indemnification") shall be
conditioned upon compliance with the following notification procedures:
(i) in the case of any Indemnification described in
Section 13.1(a)(i), Section 13.2(a)(i) or Section 13.3(a)(i) relating to a
breach of a representation or warranty contained herein, notice of such
matter on which such right to Indemnification is based shall be given in
accordance with the provisions of Section 13.5 below, but in no event later
than 12 months after the Closing Date;
(ii) in the case of any Indemnification described in
Section 13.1(a)(ii), Section 13.2(a)(ii) or Section 13.3(a)(ii) relating to
a breach of any agreement or covenant hereunder, other than (A) the
Company's covenants set forth in Section 7.4 (Releases), Section 7.5
(Indemnification of Computer 2000 Designees), Section 7.6 (Indemnification
of Computer 2000 and Seller) or Section 7.8 (No Common Stock Repurchase),
or (B) Purchaser's covenants set forth in Section 9.3 (Unaffiliated
Directors), Section 9.4 (Voting Arrangements) or Section 9.5 (Standstill
Provisions), notice of such matter on which such right to Indemnification
is based shall be given in accordance with the provisions of Section 13.5
below, but in no event later than 36 months after the breach of such
agreement or covenant; and
(iii) in the case of any Indemnification described in
(A) Section 13.1(a)(ii) relating to a breach of any covenant of the Company
set forth in Section 7.4 (Releases), Section 7.5 (Indemnification of
Computer 2000 Designees), Section 7.6 (Indemnification of Computer 2000 and
Seller) or Section 7.8 (No Common Stock Repurchase), or (B) Section
13.3(a)(ii) relating to a breach of any covenant of Purchaser set forth in
Section 9.3 (Unaffiliated Directors), Section 9.4 (Voting Arrangements) or
Section 9.5 (Standstill Provisions), notice of such matter on which such
right to Indemnification is based shall be given in accordance with the
provisions of Section 13.5 below, but in no event later ninety (90) days
after the expiration of the period of the applicable statute of limitations
governing the right of any third party or Governmental Authority or
Regulatory Body, as the case may be, to bring a claim relating or
pertaining in any way to the matters described in Section 7.4, Section 7.5,
Section 7.6, Section 9.3, Section 9.4 or Section 9.5, as the case may be,
ignoring for such purposes any voluntary extension thereof by an
Indemnifying Person (as defined below).
13.5. INDEMNIFICATION PROCEDURES. A party seeking Indemnification
pursuant to this Agreement (the "Indemnified Party") shall give reasonably
prompt notice to the party from whom such Indemnification is sought (the
"Indemnifying Party") of the assertion of any claim, or the commencement of
any action, suit or proceeding, in respect of which indemnity may be sought
hereunder, and shall give the Indemnifying Party such information with
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respect thereto as the Indemnifying Party may reasonably request, but no
failure to give such notice shall relieve the Indemnifying Party of any
liability hereunder, except to the extent that the Indemnifying Party has
suffered actual prejudice thereby. The Indemnifying Party shall have the
right to undertake the defense of any such claim asserted by a third Person
and the Indemnified Party shall cooperate in such defense and make
available all records and materials requested by the Indemnifying Party in
connection therewith at the Indemnifying Party's expense. The Indemnified
Party shall be entitled to participate in such defense, but shall not be
entitled to Indemnification with respect to the costs and expenses of such
defense if the Indemnifying Party shall have assumed the defense of the
claim with counsel reasonably satisfactory to the Indemnified Party. The
Indemnifying Party shall not be liable for any claim settled without its
consent, which consent may not be unreasonably withheld. The Indemnifying
Party may settle any claim without the consent of the Indemnified Party,
but only if the sole relief awarded is monetary damages.
13.6. SURVIVAL. All representations and warranties contained in
this Agreement shall survive the Closing hereunder for a period of 12
months.
SECTION 14. TERMINATION OF AGREEMENT.
14.1. TERMINATION. This Agreement may be terminated at any time
prior to the Closing as follows:
(a) by mutual written agreement of all of the parties
hereto;
(b) at the election of any party, if any legal proceeding
is commenced or threatened by any Governmental Authority or Regulatory Body
or other Person directed against the consummation of the Closing or any
other transaction contemplated under this Agreement and such party,
reasonably and in good faith deems it impractical or inadvisable to proceed
in view of such legal proceeding or threat thereof;
(c) at the election of the Company (i) if any one or more
of the conditions to the Company's obligations to close has not been
fulfilled as of the Closing Date in all material respects, (ii) if the
Computer 2000, Seller or Purchaser has breached any representation,
warranty, covenant or agreement contained in this Agreement or in any
document or other papers delivered pursuant to this Agreement in any
material respect or (iii) if the Closing shall not have taken place by July
31, 1998; and
(d) at the election of Computer 2000, (i) if any one or
more of the conditions to Computer 2000's obligations to close has not been
fulfilled as of the Closing Date in all material respects, (ii) if the
Company or Purchaser has breached any representation, warranty, covenant or
agreement contained in this Agreement or in any document or other papers
delivered pursuant to this Agreement in any material respect or (iii) if
the Closing shall not have taken place by July 31, 1998; and
(e) at the election of Seller, (i) if any one or more of
the conditions to Seller's obligations to close has not been fulfilled as
of the Closing Date in all material respects, (ii) if the Company or
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Purchaser has breached any representation, warranty, covenant or agreement
contained in this Agreement or in any document or other papers delivered
pursuant to this Agreement in any material respect or (iii) if the Closing
shall not have taken place by July 31, 1998; and
(f) at the election of Purchaser, (i) if any one or more of
the conditions to Purchaser's obligations to close has not been fulfilled
as of the Closing Date in all material respects, (ii) if the Company,
Computer 2000 or Seller has breached any representation, warranty, covenant
or agreement contained in this Agreement or in any document or other papers
delivered pursuant to this Agreement in any material respect or (iii) if
the Closing shall not have taken place by July 31, 1998.
14.2. EFFECT OF TERMINATION. If this Agreement is terminated as
permitted by Section 14.1, then, except as set forth in Section 15.1
(Dispute Resolution); Section 15.2 (Expenses); Section 15.4 (Brokers);
Section 15.6 (Notices) and Section 15.9 (Governing Law), such termination
shall be without any liability or obligation of any party or any of its
respective Affiliates to any other party or any of its respective
Affiliates; provided, however, that nothing set forth in this Section 14
shall relieve any party from any material breach of this Agreement.
SECTION 15. MISCELLANEOUS.
15.1. DISPUTE RESOLUTION.
(a) Dispute resolution under the procedures provided in
this Section 15.1 shall be the exclusive remedy for all disputes between
the parties in respect of a breach of any term of this Agreement. Each
party agrees not to resort to any court, agency or private group with
respect to such disputes except in accordance with this Section 15.1.
(b) In any disputes arising out of or relating to the
performance of this Agreement the parties shall attempt reasonably to
resolve such disputes in good faith by negotiation between senior
executives of each.
(c) If any such dispute has not been resolved by
negotiation by senior executives of the parties within a period of thirty
(30) calendar days (or such other reasonable amount of time as the parties
may in good faith agree is warranted by the circumstances), the dispute
shall be settled exclusively by arbitration as described in this Section
15.1 pursuant to the applicable rules of the American Arbitration
Association ("AAA"), such arbitration to be conducted in New York, New
York, U.S.A. If for any reason certain claims or disputes are deemed to be
non-arbitrable, the non-arbitrability of those claims or disputes shall in
no way affect the arbitrability of any other claims or disputes. The
parties may initiate the arbitration procedures set forth in this Section
15.1 by providing notice to the other party, as provided in this Section
15.1, and to the AAA of the existence of a dispute to be arbitrated.
(d) Arbitration shall be conducted by one arbitrator to be
selected by the parties. The arbitrator shall not be an officer, director
or employee of either party or of any of their respective Affiliates. The
arbitrator shall be an attorney licensed to practice law and familiar with
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<PAGE>
the rules of evidence and shall be generally knowledgeable with respect to
business issues being submitted to arbitration that would reasonably be
expected to arise in relation to this Agreement. If the parties are unable
to agree on an arbitrator within fifteen (15) calendar days of the
effective delivery of the notice required by Section 15.1(c), then the AAA
shall appoint the arbitrator. The decision of the arbitrator shall be
final and binding upon the parties. The arbitrator shall provide reasoned
written opinions for all decisions.
(e) All hearings that may be required shall be concluded
within sixty (60) calendar days (or such other reasonable amount of time as
the parties may in good faith agree is warranted by the circumstances)
after the selection of the arbitrator. The arbitrator shall render his or
her award within fifteen (15) calendar days after the last hearing.
(f) The parties may by written notice to one another and to
the arbitrator freely specify further controversies or claims to be
arbitrated upon until the day of any pre-hearing conference held by the
arbitrator for such purpose. Thereafter, additional controversies or
claims may be added only with the consent of the arbitrator.
(g) The arbitrator may make interim awards and may award
equitable and declaratory relief; provided, however, that the arbitrator
may not order the termination of this Agreement for any reason other than
as expressly set forth in Section 14.1 hereof.
(h) The costs and expenses of the arbitration (including
reasonable attorneys' fees) shall be allocated by the arbitrator between
the parties as the arbitrator sees fit.
(i) The arbitrator shall not consider, nor shall any award
include amounts for, punitive or exemplary damages.
(j) Notwithstanding any other provision of this
Section 15.1, either party may seek from any U.S. federal or state court of
competent jurisdiction sitting in New York County, New York, U.S.A.,
interim relief, including but not limited to temporary restraining orders,
preliminary injunctions and other interim equitable relief as the same may
vary from jurisdiction to jurisdiction, in aid of arbitration or to protect
the rights of a party pending the appointment of the arbitrator and the
rendering of the arbitration decision.
(k) In addition to the available remedy or remedies awarded
by the arbitrator, in an action to enforce a decision of the arbitrator,
the prevailing party shall be entitled to its reasonable attorneys' fees,
expert fees, costs and expenses without regard to the local rules of the
court in which such action is brought.
15.2. EXPENSES. The parties to this Agreement shall, except as
otherwise specifically provided herein, bear their respective expenses
incurred in connection with the preparation, execution and performance of
this Agreement and the transactions contemplated hereby. The Company shall
pay the fees due to the Financial Advisor to render the Comfort Letter.
Page 36 of 42 Pages
<PAGE>
15.3. FURTHER ASSURANCES. Each of the parties shall execute such
documents and other papers and take such further actions as may reasonably
be required or desirable to carry out the provisions hereof and the
transactions contemplated hereby. Each such party shall use its reasonable
efforts to fulfill or obtain the fulfillment of the conditions to the
Closing, including, without limitation, the execution and delivery of any
document or other papers, the execution and delivery of which are
conditions precedent to the Closing.
15.4. BROKERS.
(a) The Company represents and warrants to the other
parties to this Agreement that no broker, finder, agent or similar
intermediary has acted on its behalf in connection with this Agreement or
the transactions contemplated hereby, and there are no brokerage
commissions, finders' fees or similar fees or commissions payable in
connection therewith based on any agreement, arrangement or understanding
with the Company or any action taken by the Company.
(b) Computer 2000 represents and warrants to the other
parties to this Agreement that no broker, finder, agent or similar
intermediary has acted on behalf of Computer 2000 in connection with this
Agreement or the transactions contemplated hereby, and that there are no
brokerage commissions, finders' fees or similar fees or commissions payable
in connection therewith based on any agreement, arrangement or
understanding with Computer 2000, or any action taken by Computer 2000.
(c) Seller represents and warrants to the other parties to
this Agreement that no broker, finder, agent or similar intermediary has
acted on behalf of Seller in connection with this Agreement or the
transactions contemplated hereby, and that there are no brokerage
commissions, finders' fees or similar fees or commissions payable in
connection therewith based on any agreement, arrangement or understanding
with Seller, or any action taken by Seller
(d) Purchaser represents and warrants to the other parties
to this Agreement that no broker, finder, agent or similar intermediary has
acted on its behalf in connection with this Agreement or the transactions
contemplated hereby, and there are no brokerage commissions, finders' fees
or similar fees or commissions payable in connection therewith based on any
agreement, arrangement or understanding with Purchaser or any action taken
by Purchaser.
(e) Each party agrees to indemnify and save the harmless
the other parties hereto from any claim or demand for commissions or other
compensation by any broker, finder, agent or similar intermediary claiming
to have been employed by or on behalf of such party, and to bear the cost
of legal expenses incurred in defending against any such claim.
15.5. CERTAIN DEFINITIONS. As used in this Agreement, the
following terms have the following meanings unless the context otherwise
requires:
(a) "Actions or Proceedings" means any action, suit,
proceeding, arbitration or investigation or audit by any Governmental
Authority or Regulatory Body.
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<PAGE>
(b) "Affiliate" with respect to any Person, means any other
Person controlling, controlled by or under common control with such Person;
(c) "Contracts or Other Agreements" means all material
contracts, agreements, understandings, indentures, notes, bonds, loans,
instruments, leases, mortgages, franchises, licenses, commitments or other
binding arrangements, written or oral, express or implied;
(d) "Governmental Authority or Regulatory Body" means any
government or political subdivision thereof, whether foreign, U.S. federal,
state, provincial or local, or any agency or instrumentality of any such
government or political subdivision;
(e) "Knowledge" means the knowledge a party actually has
and the knowledge a party, after due inquiry, should have had. A party is
deemed to have knowledge of any matter as to which any officer or director
of such party has knowledge.
(f) "Law" means any law, statute, rule, regulation,
ordinance or other pronouncement having the effect of law in the United
States or in any other country, or in any state, providence, county, city
or other political subdivision thereof.
(g) "Loss" means any loss, liability, damages, deficiency,
cost or expense, including interest, penalties and reasonable attorneys'
fees and disbursements and other costs.
(h) "Order" means any writ, judgment, decree, injunction or
similar order of any Governmental Authority or Regulatory Body of the
United States or of any other country, or of any state, providence, county,
city or other political subdivision thereof (in each such case, whether
preliminary or final).
(i) "Person" means any individual, corporation,
partnership, firm, joint venture, association, joint-stock company, trust,
limited liability company, unincorporated organization, Governmental
Authority or Regulatory Body or other entity of any kind whatsoever.
15.6. NOTICES. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally,
sent by facsimile transmission or sent by certified, registered or express
mail, postage prepaid, or by an internationally recognized overnight
courier such as Federal Express. Any such notice shall be deemed given
when so delivered personally, or sent by facsimile transmission or, if
mailed or sent by courier, three days after the date of mailing or deliver
to a courier service, as follows:
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<PAGE>
(a) If to the Company to:
AmeriQuest Technologies, Inc.
425 Privet Road
Horsham, Pennsylvania 19044-0965
Attention: Chief Executive Officer
Facsimile: (215) 675-1824
with required copies to:
Morgan, Lewis & Bockius LLP
2000 One Logan Square
Philadelphia, Pennsylvania 19103
Attention: Steven M. Cohen, Esq.
Facsimile: (215) 963-5299
(b) if to Computer 2000, to:
Computer 2000 AG
Wolfratshauser Strasse 84
D-81379 Munich
Federal Republic of Germany
Attention: Manfred Guenzel
Facsimile: 011-49-89-7427-4402
with required copies to:
Rogers & Wells LLP
Two Hundred Park Avenue
New York, NY 10166-0153
Attention: Klaus H. Jander, Esq.
Facsimile (212) 878-8375
(c) if to Seller to:
Computer 2000, Inc.
Wolfratshauser Strasse 84
D-81379 Munich
Federal Republic of Germany
Attention: Manfred Guenzel
Facsimile: 011-49-89-7427-4402
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<PAGE>
with required copies to:
Rogers & Wells LLP
Two Hundred Park Avenue
New York, NY 10166-0153
Attention: Klaus H. Jander, Esq.
Facsimile (212) 878-8375
(d) If to Purchaser, to:
The Listen Group Partners LLC c/o AmeriQuest
Technologies, Inc.
425 Privet Road
Horsham, Pennsylvania 19044-0965
Attention: Alexander C. Kramer and Jon D. Jensen
Facsimile: (215) 675-1824
with required copies to:
J. Britton Gourley, Jr., Esq.
P.O. Box 1905
1003 West Ninth Avenue
King of Prussia, Pennsylvania 19406
Facsimile: (610) 265-2480
Any party may by notice given in accordance with this Section 15.6 to the
other parties designate another address or person for receipt of notices
hereunder.
15.7. ENTIRE AGREEMENT. This Agreement and the agreements,
certificates and other documents delivered pursuant hereto or in connection
with the transactions contemplated hereby contain the entire agreement
among the parties with respect to the transactions described herein, and
supersede all prior agreements, written or oral, with respect thereto.
15.8. WAIVERS AND AMENDMENTS; PRESERVATION OF REMEDIES. This
Agreement may be amended, superseded, canceled, renewed or extended, and
the terms hereof may be waived, only by a written instrument signed by the
parties or, in the case of a waiver, by the party waiving compliance. No
delay on the part of any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any waiver on the
part of any party of any such right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude any
further exercise thereof or the exercise of any other such right, power or
privilege. The rights and remedies herein provided are cumulative and are
not exclusive of any rights or remedies that any party may otherwise have
at law or in equity. The rights and remedies of any party based upon,
arising out of or otherwise in respect of any inaccuracy in or breach of
any representation, warranty, covenant or agreement contained in this
Agreement shall in no way be limited by the fact that the act, omission,
occurrence or other state of facts upon which any claim of any such
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<PAGE>
inaccuracy or breach is based may also be the subject matter of any other
representation, warranty, covenant or agreement contained in this Agreement
(or in any other agreement between the parties) as to which there is no
inaccuracy or breach.
15.9. GOVERNING LAW. This Agreement shall be exclusively governed
and construed exclusively in accordance with the laws of the State of New
York, without reference to its conflicts-of-law rules or principles.
15.10. BINDING EFFECT; NO ASSIGNMENT. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective
successors and legal representatives. Except by operation of law, this
Agreement is not assignable without the consent of the parties and any
purported assignment without such consent shall be null and void.
15.11. COUNTERPARTS. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a
number of copies hereof each signed by less than all, but together signed
by all of the parties hereto.
15.12. HEADINGS. The headings in this Agreement are for
reference only, and shall not affect the interpretation of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement on
the date first above written.
AMERIQUEST TECHNOLOGIES, INC.
By: /s/ Alexander C. Kramer, Jr.
Name: Alexander C. Kramer, Jr.
Title: President
COMPUTER 2000 AG
By: /s/ Dr. Harry Krischik
Name: Dr. Harry Krischik
Title: Member of the Executive Board
By: /s/ Manfred Guenzel
Name: Manfred Guenzel
Title: Member of the Executive Board
COMPUTER 2000, INC.
By: /s/ Martin E. Loeffler By: /s/ Richard E. Obermaier
Name: Martin E. Loeffler Name: Richard E. Obermaier
Title: President Title: Secretary
THE LISTEN GROUP PARTNERS LLC
By: /s/ Jon D. Jensen
Name: Jon D. Jensen
Title: Co-President
PAGE 42 OF 42 PAGES
