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EXHIBIT 4.7
ASSET PURCHASE AGREEMENT
BY AND AMONG
TYLER TECHNOLOGIES, INC.,
KOFILE, INC.,
SPECTRUM DATA, INC.,
ei SOLUTIONS, INC.,
KOFILE ACQUISITION CORPORATION
AND
SPECTRUM DATA ACQUISITION CORPORATION
DATED AS OF SEPTEMBER 29, 2000
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of
September 29, 2000, by and among Tyler Technologies, Inc., a Delaware
corporation ("Tyler"),Kofile, Inc., a Texas corporation ("Old Kofile"), Spectrum
Data, Inc., a Texas corporation ("Old Spectrum" and, together with Tyler and Old
Kofile, the "Sellers"), ei Solutions, Inc., a Delaware corporation ("ei
Solutions"), Kofile Acquisition Corporation, a Delaware corporation ("New
Kofile"), Spectrum Data Acquisition Corporation, a Texas corporation ("New
Spectrum" and, together with ei Solutions and New Kofile, the "Purchasers").
RECITALS
A. Old Kofile and Old Spectrum are wholly owned subsidiaries of BRC and
indirect wholly owned subsidiaries of Tyler.
B. Old Kofile is in the business of providing document management
solutions and software, including, without limitation, document storage and
retrieval and OCR and ICR products, and related sales and support (the "Kofile
Business").
C. Old Spectrum is in the business of providing system analysis and
design, custom programming, network design, implementation and maintenance,
document imaging and management integration (the "Spectrum Business").
D. Old Kofile desires to sell to New Kofile the Kofile Business as a
going concern and in connection therewith substantially all of the assets of Old
Kofile, and New Kofile desires to purchase such business and assets and assume
substantially all the liabilities of Old Kofile relating thereto, upon the terms
and conditions set forth in this Agreement (the "Kofile Purchase").
E. Old Spectrum desires to sell to New Spectrum the Spectrum Business
as a going concern and in connection therewith substantially all of the assets
of Old Spectrum, and New Spectrum desires to purchase such business and assets
and assume substantially all the liabilities of Old Spectrum relating thereto,
upon the terms and conditions set forth in this Agreement (the "Spectrum
Purchase").
F. BRC and Old Spectrum are selling certain real property to Real
Property Purchaser upon the terms and conditions set forth in the Real Property
Purchase Agreement (the "Real Property Purchases").
G. Tyler desires to sell certain intangible property to ei Solutions,
and ei Solutions desires to purchase such intangible property from Tyler, upon
the terms and conditions set forth in this Agreement (the "Intangibles
Purchase").
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants contained
herein, the parties hereto, intending to be legally bound, agree as follows:
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ARTICLE I
DEFINITIONS
1.1. DEFINITIONS. Capitalized terms used in this Agreement shall have
the following meanings:
"AAA" shall have the meaning set forth in Section 12.9(b).
"Affiliate" of, or "Affiliated" with, a specified person or entity
means a person or entity that directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
the specified person or entity.
"Agreed Kofile Net Asset Value" has the meaning set forth in Section
5.6(a).
"Agreed Net Asset Value" has the meaning set forth in Section 5.6(a).
"Agreed Spectrum Net Asset Value" has the meaning set forth in Section
5.6(a).
"Agreement" has the meaning set forth in the first paragraph of this
Agreement.
"Asset Purchases" means the Kofile Purchase, the Spectrum Purchase, the
Real Property Purchases and the Intangibles Purchase.
"Assets" means the Kofile Assets, the Spectrum Assets, the Real
Property and the Intangibles.
"Assumed Contracts" means the Assumed Kofile Contracts and the Assumed
Spectrum Contracts.
"Assumed Kofile Contracts" has the meaning set forth in Section 2.3.
"Assumed Kofile Liabilities" means the liabilities and obligations of
Old Kofile to be assumed by New Kofile at the Closing in accordance with Section
2.4.
"Assumed Liabilities" means the Assumed Kofile Liabilities and the
Assumed Spectrum Liabilities.
"Assumed Spectrum Contracts" has the meaning set forth in Section 3.3.
"Assumed Spectrum Liabilities" means the liabilities and obligations of
Old Spectrum to be assumed by New Spectrum at the Closing in accordance with
Section 3.4.
"BRC" means Business Resources Corporation, a Texas corporation.
"Businesses" means the Kofile Business and the Spectrum Business.
"Closing" has the meaning set forth in Section 5.3.
"Closing Cash Balance" has the meaning set forth in Section 5.5(a).
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"Closing Date" has the meaning set forth in Section 5.3.
"Closing Kofile Net Asset Value" has the meaning set forth in Section
5.6(a).
"Closing Spectrum Net Asset Value" has the meaning set forth in Section
5.6(a).
"Code" means the Internal Revenue Code of 1986, as amended.
"Designated Parties" has the meaning set forth in Section 12.9(a).
"ei Solutions" has the meaning set forth in the first paragraph of this
Agreement.
"Encumbrances" means all liens, mortgages, pledges, security interests,
conditional sales agreements, charges, claims, options, liabilities,
obligations, preemptive rights, rights of first refusal, reservations,
restrictions or other defects in title or other encumbrances of any kind.
"ESI Acquisition" has the meaning set forth in Section 4.2(a).
"Excluded Contracts" means the Excluded Kofile Contracts and the
Excluded Spectrum Contracts.
"Excluded Kofile Assets" has the meaning set forth in Section 2.2 .
"Excluded Kofile Contracts" has the meaning set forth in Section 2.3.
"Excluded Kofile Liabilities" has the meaning set forth in Section 2.5.
"Excluded Spectrum Assets" has the meaning set forth in Section 3.2 .
"Excluded Spectrum Contracts" has the meaning set forth in Section 3.3.
"Excluded Spectrum Liabilities" has the meaning set forth in Section
3.5.
"Expiration Date" has the meaning set forth in Section 12.5.
"GAAP" means the generally accepted accounting principles in the United
States as currently applied by the respective party on a basis consistent with
preceding years and throughout the periods involved.
"Governmental Authority" means any federal, state, local or foreign
government, political subdivision or governmental or regulatory authority,
agency, board, bureau, commission, instrumentality or court or
quasi-governmental authority.
"Indemnified Party" has the meaning set forth in Section 9.3.
"Indemnifying Party" has the meaning set forth in Section 9.3.
"Intangibles" has the meaning set forth in Section 4.2.
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"Intangibles Purchase" has the meaning set forth in Recital G.
"Kodak" means Eastman Kodak Company, a New Jersey corporation.
"Kofile Assets" has the meaning set forth in Section 2.1.
"Kofile Bank Accounts" has the meaning set forth in Section 2.1(l).
"Kofile Business" has the meaning set forth in the Recital B.
"Kofile GmbH" means Kofile Germany GmbH, a limited liability company
organized under the laws of the Federal Republic of Germany.
"Kofile Net Asset Value Adjustment" has the meaning set forth in
Section 5.6(a).
"Kofile Purchase" has the meaning set forth in the Recital D.
"Law" or "Laws" means any and all federal, state, local or foreign
statutes, laws, ordinances, proclamations, codes, regulations, licenses,
permits, authorizations, approvals, consents, legal doctrines, published
requirements, orders, decrees, judgments, injunctions and rules of any
Governmental Authority, including, without limitation, those covering
environmental, Tax, energy, safety, health, transportation, bribery,
recordkeeping, zoning, discrimination, antitrust and wage and hour matters, in
each case as amended and in effect from time to time.
"Listed Assets and Liabilities" has the meaning set forth in Section
5.6(a).
"Loss" or "Losses" means all liabilities, losses, claims, damages,
actions, suits, proceedings, demands, assessments, adjustments, fees, costs and
expenses (including specifically, but without limitation, reasonable attorneys'
fees and costs and expenses of investigation), net of (i) income Tax effects
with respect thereto (including, without limitation, income Tax benefits
recognized in connection therewith and income Taxes upon any indemnification
recovery thereof) and (ii) any insurance proceeds or recoveries in respect of
such losses.
"Mockingbird Property" means that certain real property and
improvements thereon located at 2800 West Mockingbird Lane, Dallas, Texas, as
more particularly described in the Real Property Purchase Agreement.
"Net Asset Value Adjustment" has the meaning set forth in Section
5.6(a).
"Net Cash Adjustment" has the meaning set forth in Section 5.6(b).
"New Kofile" has the meaning set forth in the first paragraph of this
Agreement.
"New Spectrum" has the meaning set forth in the first paragraph of this
Agreement.
"Oates" means William D. Oates.
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"Old Kofile" has the meaning set forth in the first paragraph of this
Agreement.
"Old Spectrum" has the meaning set forth in the first paragraph of this
Agreement.
"Permits" means all licenses, franchises, permits, transportation
authorities and other governmental authorizations, operating authorizations,
titles (including motor vehicle titles and current registrations), fuel permits,
and certificates.
"Permitted Encumbrances" means (a) any Encumbrances that constitute an
Assumed Liability, (b) Encumbrances for property or ad valorem Taxes not yet due
and payable or which are being contested in good faith and by appropriate
proceedings if adequate reserves with respect thereto are maintained on the
Company's accounting records in accordance with GAAP, (c) mechanics', carriers',
workers', repairmen's, statutory or common law liens being contested in good
faith by appropriate proceedings and (d) rights of the customers of the
respective Business with respect to inventory under orders or contracts entered
into by the respective Business in the ordinary course of business.
"Post-Closing Adjustment" has the meaning set forth in Section 5.6.
"Purchase Price" has the meaning set forth in Section 5.1.
"Purchasers" has the meaning set forth in the first paragraph of this
Agreement.
"Real Property" means the Mockingbird Property and the San Antonio
Property.
"Real Property Purchase Agreement" has the meaning set forth in Section
4.1.
"Real Property Purchaser" means, collectively, Oates and his wife,
Marilyn Oates.
"Real Property Purchases" has the meaning set forth in Recital F.
"San Antonio Property" means that certain real property and
improvements thereon located at 10537 Gulfdale, San Antonio, Texas 78216, as
more particularly described in the Real Property Purchase Agreement.
"Sellers" has the meaning set forth in the first paragraph of this
Agreement.
"Spectrum Assets" has the meaning set forth in Section 3.1.
"Spectrum Bank Accounts" has the meaning set forth in Section 3.1(k).
"Spectrum Business" has the meaning set forth in Recital C.
"Spectrum Net Asset Value Adjustment" has the meaning set forth in
Section 5.6(a).
"Spectrum Purchase" has the meaning set forth in Recital E.
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"Taxes" means all taxes, charges, fees, levies or other assessments
including, without limitation, income, gross receipts, excise, property, sales,
withholding, social security, unemployment, occupation, use, service, service
use, license, payroll, franchise, transfer and recording taxes, fees and
charges, imposed by the United States or any state, local or foreign government
or subdivision or agency thereof, whether computed on a separate, consolidated,
unitary, combined or any other basis; and such term shall include any interest,
fines, penalties or additional amounts attributable to or imposed with respect
to any such taxes, charges, fees, levies or other assessments.
"Transferred Kofile Cash" has the meaning set forth in Section 2.1(a).
"Transferred Spectrum Cash" has the meaning set forth in Section
3.1(a).
"Tyler" has the meaning set forth in the first paragraph of this
Agreement.
"Third Person" has the meaning set forth in Section 9.3.
1.2. INTERPRETATION. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in Section 1.1 and elsewhere in this
Agreement include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings ascribed to them in accordance with GAAP;
(c) the words "herein," "hereof," and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to
any particular Article, Section or other subdivision; and
(d) this Agreement is the joint drafting product of Sellers
and Purchasers and each provision has been subject to negotiation and
agreement and shall not be construed for or against any party as
drafter thereof.
ARTICLE II
THE KOFILE PURCHASE
2.1. ACQUISITION OF THE KOFILE ASSETS. Upon the terms and subject to
the conditions of this Agreement, at the Closing, Old Kofile agrees to sell,
convey, transfer, assign and deliver to New Kofile, and New Kofile agrees to
purchase from Old Kofile, on an "AS IS, WHERE IS" basis, all of its assets,
properties, businesses, franchises, goodwill and rights of every kind and
character, tangible or intangible, real or personal, whether owned or leased,
other than the Excluded Kofile Assets, free and clear of all Encumbrances other
than Permitted Encumbrances and any created by New Kofile (collectively, the
"Kofile Assets"). Without limiting the generality of the foregoing, the Kofile
Assets shall consist of all such assets of Old Kofile as of the Closing,
including, without limitation, the following:
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(a) cash and cash equivalents as of the close of business on
the Closing Date up to an aggregate amount, when taken together with
the cash and cash equivalents transferred to New Spectrum pursuant to
Section 3.1(a), of $200,000 (the "Transferred Kofile Cash").
(b) all accounts and notes receivable of Old Kofile, except
for intercompany receivables;
(c) all inventory, work-in-progress and spare parts of Old
Kofile;
(d) all customer lists, sales records, credit data and other
information relating to customers of Old Kofile;
(e) all right, title and interest of Old Kofile in, to and
under the Assumed Kofile Contracts, as provided in Section 2.3;
(f) all right, title and interest of Old Kofile in, to and
under all source codes, object codes, design documentation and
procedures for product generation and testing of the computer software
related to the Business, including the trade secrets, know-how,
inventions, designs, technical processes, works of authorship and
technical data comprising the same;
(g) all right, title and interest of Old Kofile in, to and
under all patents, patent applications, trademarks, service marks,
technology, licenses, trade names, copyrights and other intellectual
property or proprietary property rights owned or used by Old Kofile,
the goodwill associated therewith and the rights and privileges used in
the conduct of the Kofile Business and the right to recover for past,
present and future infringement thereon;
(h) all right, title and interest of Old Kofile in computer
equipment and hardware, including, without limitation, all central
processing units, terminals, disk drives, tape drives, electronic
memory units, printers, keyboards, screens, peripherals (and other
input/output devices), modems and other communication controllers,
networking equipment, and any and all parts and appurtenances thereto,
together with all proprietary and third-party software and intellectual
property licensed by Old Kofile with such computer equipment and
hardware;
(i) all of the furniture, fixtures, equipment, vehicles,
machinery, tools, appliances, telephone systems, copy machines, fax
machines, implements, spare parts, supplies and all other tangible
personal property of every kind and description owned by Old Kofile or
Old Kofile's leasehold interests therein;
(j) all right, title and interest of Old Kofile in, to and
under all Permits owned or possessed by Old Kofile and relating to the
Kofile Business or all or any of the Kofile Assets;
(k) all right, title and interest of Old Kofile in, to and
under the outstanding share capital of Kofile GmbH;
(l) all accounts held with financial institutions in the name
of Old Kofile (the "Kofile Bank Accounts"), subject to the limitation
on the amount of cash and cash equivalents transferred to New Kofile
pursuant to Section 2.1(a).
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(m) copies of Old Kofile's books, records, papers and
instruments of whatever nature and wherever located (including, without
limitation, all employee and personnel records) that relate to the
Kofile Business or the Kofile Assets or which are required or necessary
in order for New Kofile to conduct the Kofile Business from and after
the Closing in the manner in which it is being conducted before the
Closing;
(n) all insurance proceeds and insurance claims of Old Kofile
relating to the Kofile Business or all or any part of the Kofile
Assets, and to the extent transferable, the benefit of and the right to
enforce the covenants and warranties, if any, that Old Kofile is
entitled to enforce with respect to the Kofile Assets against its
predecessors in title to the Kofile Assets, if any;
(o) all right, title and interest of Old Kofile in, to and
under all rights, privileges, claims, causes of action and options
relating to or pertaining to the Kofile Business or the foregoing
Kofile Assets;
(p) all right, title and interest of Old Kofile in and to all
prepaid expenses, advances and deposits relating to any of the Kofile
Assets or the Kofile Business;
(q) the name "Kofile";
(r) all right, title and interest of Old Kofile or any Seller
in and to the goodwill and going concern value related to the Kofile
Business, including, but not limited to, telephone numbers, and any
other intangible assets; and
(s) all other or additional privileges, rights, interest,
properties and assets of Old Kofile of every kind and description and
wherever located that are used or intended for use in connection with,
or that are necessary to the continued conduct of, the Kofile Business
as presently being conducted.
2.2. EXCLUDED KOFILE ASSETS. Old Kofile shall retain, and the Kofile
Assets shall not include the following assets and other rights of Old Kofile
(collectively, the "Excluded Kofile Assets"):
(a) cash and cash equivalents of Old Kofile in excess of the
Transferred Kofile Cash;
(b) intercompany receivables of Old Kofile;
(c) the Excluded Kofile Contracts;
(d) any software or intellectual property owned by or licensed
to Tyler or any of its Affiliates, other than Old Kofile; and
(e) any refunds or receivables due to Old Kofile from any
Governmental Authority relating to Taxes previously paid by Old Kofile.
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2.3. ASSIGNMENT AND ASSUMPTION OF CONTRACTS. At Closing, and subject to
the further terms and conditions of this Agreement, Old Kofile will assign all
of its right, title and interest in and to, and New Kofile will assume, perform
and discharge all of Old Kofile's remaining obligations under, all existing
contracts and agreements, written and verbal to which Old Kofile is a party
(collectively, the "Assumed Kofile Contracts"). Notwithstanding the foregoing,
the Assumed Kofile Contracts do not include, and nothing in this Agreement will
be deemed to constitute an assignment or attempted assignment of, any contract,
agreement or license to which Old Kofile is a party if the attempted assignment
without the consent of the other party thereto would constitute a breach or
affect in any way the rights of Old Kofile thereunder and for which consent has
not been obtained (collectively, the "Excluded Kofile Contracts"). If the
consent of any such other party is not obtained on or prior to the Closing Date,
or an attempted assignment on the Closing Date would be ineffective and would
affect the rights of Old Kofile, or New Kofile as assignee, thereunder, Old
Kofile will cooperate with New Kofile in a reasonable arrangement designed to
provide for New Kofile the economic benefits, to the extent of New Kofile's
performance of Old Kofile's obligations, under each Excluded Kofile Contract and
will continue pursuant to Section 8.5 to cooperate and use its reasonable best
efforts to obtain such assignment.
2.4. ASSUMED LIABILITIES. As further consideration for the purchase of
the Kofile Assets, New Kofile shall assume and discharge all liabilities,
obligations or contingencies of Old Kofile, except the Excluded Kofile
Liabilities.
2.5. LIABILITIES NOT ASSUMED. New Kofile shall not assume or become
liable or otherwise obligated to pay, perform or discharge any of the following
debts, liabilities or obligations of Old Kofile (the "Excluded Kofile
Liabilities"):
(a) any debt, liability or obligation of Old Kofile resulting
from, arising out of or relating to any debt, liability or obligation
to or of Tyler or any Affiliate of Tyler other than Old Kofile,
including, without limitation, any guaranty of Old Kofile therefor;
(b) any debt, liability or obligation of Old Kofile resulting
from, arising out of or relating to any employee benefit plan or
employee plan of any kind or nature maintained, operated or
administered by Tyler or Affiliate of Tyler other than Old Kofile;
(c) any debt, liability or obligation of Old Kofile resulting
from, arising as a result of or relating to the termination of any
employee of Old Kofile prior to the Closing;
(d) any liabilities or obligations arising under any Excluded
Kofile Contracts; and
(e) liabilities or obligations arising on or before the
Closing Date for income, sales, use, franchise, excise or transfer
Taxes or duties, or other property or ad valorem Taxes or duties, based
upon the value of the Kofile Assets, including, without limitation, any
Taxes that accrue or become payable by Old Kofile as a result of the
sale of the Kofile Assets to New Kofile, and liabilities or obligations
arising at any time for income, sales, use, franchise, excise or
transfer Taxes or duties, or other property or ad valorem Taxes or
duties, based upon the income or operations of Old Kofile.
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ARTICLE III
THE SPECTRUM PURCHASE
3.1. ACQUISITION OF THE SPECTRUM ASSETS. Upon the terms and subject to
the conditions of this Agreement, at the Closing, Old Spectrum agrees to sell,
convey, transfer, assign and deliver to New Spectrum, and New Spectrum agrees to
purchase from Old Spectrum, on an "AS IS, WHERE IS" basis, all of its assets,
properties, businesses, franchises, goodwill and rights of every kind and
character, tangible or intangible, real or personal, whether owned or leased,
other than the Excluded Spectrum Assets, free and clear of all Encumbrances
other than Permitted Encumbrances and any created by New Spectrum (collectively,
the "Spectrum Assets"). Without limiting the generality of the foregoing, the
Spectrum Assets shall consist of all such assets of Old Spectrum as of the
Closing, including, without limitation, the following:
(a) cash and cash equivalents as of the close of business on
the Closing Date up to an aggregate amount, when taken together with
the Transferred Kofile Cash, of $200,000 (the "Transferred Spectrum
Cash").
(b) all accounts and notes receivable of Old Spectrum, except
for intercompany receivables;
(c) all inventory, work-in-progress and spare parts of Old
Spectrum;
(d) all customer lists, sales records, credit data and other
information relating to customers of Old Spectrum;
(e) all right, title and interest of Old Spectrum in, to and
under the Assumed Spectrum Contracts, as provided in Section 3.3;
(f) all right, title and interest of Old Spectrum in, to and
under all source codes, object codes, design documentation and
procedures for product generation and testing of the computer software
related to the Business, including the trade secrets, know-how,
inventions, designs, technical processes, works of authorship and
technical data comprising the same;
(g) all right, title and interest of Old Spectrum in, to and
under all patents, patent applications, trademarks, service marks,
technology, licenses, trade names, copyrights and other intellectual
property or proprietary property rights owned or used by Old Spectrum,
the goodwill associated therewith and the rights and privileges used in
the conduct of the Spectrum Business and the right to recover for past,
present and future infringement thereon;
(h) all right, title and interest of Old Spectrum in computer
equipment and hardware, including, without limitation, all central
processing units, terminals, disk drives, tape drives, electronic
memory units, printers, keyboards, screens, peripherals (and other
input/output devices), modems and other communication controllers,
networking equipment, and any and all parts and appurtenances thereto,
together with all proprietary and third-party software and intellectual
property licensed by Old Spectrum with such computer equipment and
hardware;
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(i) all of the furniture, fixtures, equipment, vehicles,
machinery, tools, appliances, telephone systems, copy machines, fax
machines, implements, spare parts, supplies and all other tangible
personal property of every kind and description owned by Old Spectrum
or Old Spectrum's leasehold interests therein;
(j) all right, title and interest of Old Spectrum in, to and
under all Permits owned or possessed by Old Spectrum and relating to
the Spectrum Business or all or any of the Spectrum Assets;
(k) all accounts held with financial institutions in the name
of Old Spectrum (the "Spectrum Bank Accounts"), subject to the
limitation on the amount of cash and cash equivalents transferred to
New Spectrum pursuant to Section 3.1(a).
(l) copies of Old Spectrum's books, records, papers and
instruments of whatever nature and wherever located (including, without
limitation, all employee and personnel records) that relate to the
Spectrum Business or the Spectrum Assets or which are required or
necessary in order for New Spectrum to conduct the Spectrum Business
from and after the Closing in the manner in which it is being conducted
before the Closing;
(m) all insurance proceeds and insurance claims of Old
Spectrum relating to the Spectrum Business or all or any part of the
Spectrum Assets, and to the extent transferable, the benefit of and the
right to enforce the covenants and warranties, if any, that Old
Spectrum is entitled to enforce with respect to the Spectrum Assets
against its predecessors in title to the Spectrum Assets, if any;
(n) all right, title and interest of Old Spectrum in, to and
under all rights, privileges, claims, causes of action and options
relating to or pertaining to the Spectrum Business or the foregoing
Spectrum Assets;
(o) all right, title and interest of Old Spectrum in and to
all prepaid expenses, advances and deposits relating to any of the
Spectrum Assets or the Spectrum Business;
(p) the name "Spectrum Data";
(q) all right, title and interest of Old Spectrum or any
Seller in and to the goodwill and going concern value related to the
Spectrum Business, including, but not limited to, telephone numbers,
and any other intangible assets; and
(r) all other or additional privileges, rights, interest,
properties and assets of Old Spectrum of every kind and description and
wherever located that are used or intended for use in connection with,
or that are necessary to the continued conduct of, the Spectrum
Business as presently being conducted.
3.2. EXCLUDED SPECTRUM ASSETS. Old Spectrum shall retain, and the
Spectrum Assets shall not include the following assets and other rights of Old
Spectrum (collectively, the "Excluded Spectrum Assets"):
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(a) cash and cash equivalents of Old Spectrum in excess of the
Transferred Spectrum Cash;
(b) intercompany receivables of Old Spectrum;
(c) the Excluded Spectrum Contracts;
(d) any software or intellectual property owned by or licensed
to Tyler or any of its Affiliates, other than Old Spectrum;
(e) any refunds or receivables due to Old Spectrum from any
Governmental Authority relating to Taxes previously paid by Old
Spectrum; and
(f) the San Antonio Property.
3.3. ASSIGNMENT AND ASSUMPTION OF CONTRACTS. At Closing, and subject to
the further terms and conditions of this Agreement, Old Spectrum will assign all
of its right, title and interest in and to, and New Spectrum will assume,
perform and discharge all of Old Spectrum's remaining obligations under, all
existing contracts and agreements, written and verbal to which Old Spectrum is a
party (collectively, the "Assumed Spectrum Contracts"). Notwithstanding the
foregoing, the Assumed Spectrum Contracts do not include, and nothing in this
Agreement will be deemed to constitute an assignment or attempted assignment of,
any contract, agreement or license to which Old Spectrum is a party if the
attempted assignment without the consent of the other party thereto would
constitute a breach or affect in any way the rights of Old Spectrum thereunder
for which consent has not been obtained (collectively, the "Excluded Spectrum
Contracts"). If the consent of any such other party is not obtained on or prior
to the Closing Date, or an attempted assignment on the Closing Date would be
ineffective and would affect the rights of Old Spectrum, or New Spectrum as
assignee, thereunder, Old Spectrum will cooperate with New Spectrum in a
reasonable arrangement designed to provide for New Spectrum the economic
benefits, to the extent of New Spectrum's performance of Old Spectrum's
obligations, under each Excluded Spectrum Contract and will continue pursuant to
Section 8.5 to cooperate and use its reasonable best efforts to obtain such
assignment.
3.4. ASSUMED LIABILITIES. As further consideration for the purchase of
the Spectrum Assets, New Spectrum shall assume and discharge all liabilities,
obligations or contingencies of Old Spectrum, except the Excluded Spectrum
Liabilities.
3.5. LIABILITIES NOT ASSUMED. New Spectrum shall not assume or become
liable or otherwise obligated to pay, perform or discharge any of the following
debts, liabilities or obligations of Old Spectrum (the "Excluded Spectrum
Liabilities"):
(a) any purchase money indebtedness secured by a mortgage or
deed of trust on the San Antonio Property, except as expressly provided
under the terms and conditions of the Real Property Purchase Agreement;
(b) any debt, liability or obligation of Old Spectrum
resulting from, arising out of or relating to any debt, liability or
obligation to or of Tyler or any Affiliate of Tyler other than Old
Spectrum, including, without limitation, any guaranty of Old Spectrum
therefor;
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(c) any debt, liability or obligation of Old Spectrum
resulting from, arising out of or relating to any employee benefit plan
or employee plan of any kind or nature maintained, operated or
administered by Tyler or Affiliate of Tyler other than Old Spectrum;
(d) any debt, liability or obligation of Old Spectrum
resulting from, arising as a result of or relating to the termination
of any employee of Old Spectrum prior to the Closing;
(e) any liabilities or obligations arising under any Excluded
Spectrum Contracts; and
(f) liabilities or obligations arising on or before the
Closing Date for income, sales, use, franchise, excise or transfer
Taxes or duties, or other property or ad valorem Taxes or duties, based
upon the value of the Spectrum Assets, including, without limitation,
any Taxes that accrue or become payable by Old Spectrum as a result of
the sale of the Spectrum Assets to New Spectrum, and liabilities or
obligations arising at any time for income, sales, use, franchise,
excise or transfer Taxes or duties, or other property or ad valorem
Taxes or duties, based upon the income or operations of Old Spectrum.
ARTICLE IV
OTHER PURCHASES
4.1. ACQUISITION OF THE REAL PROPERTY. The sale to Real Property
Purchaser by (a) BRC of the Mockingbird Property and (b) Old Spectrum of the San
Antonio Property is upon the terms and subject to the conditions of that certain
Purchase and Sale Agreement dated as of the date hereof by and among BRC, Old
Spectrum and Real Property Purchaser in the form attached to this Agreement as
Exhibit A (the "Real Property Purchase Agreement").
4.2. ACQUISITION OF THE INTANGIBLES. Upon the terms and subject to the
conditions of this Agreement, at the Closing, Tyler agrees to sell, convey,
transfer, assign and deliver to ei Solutions, and ei Solutions agrees to
purchase from Tyler, on an "AS IS, WHERE IS" basis, free and clear of all
Encumbrances other than any created by ei Solutions, the following
(collectively, the "Intangibles"):
(a) all right, title and interest of Tyler in, to and under
any work product or other intangible assets created or acquired by
Tyler or its employees in connection with, arising from or related to
Tyler's investment in its proposed acquisition of the business and
assets of Eastman Software, Inc., and certain other Affiliates of Kodak
(the "ESI Acquisition"); and
(b) all right, title and interest of Tyler in, to and under
that certain nonrefundable deposit in the amount of $100,000 paid by
Tyler to Kodak on July 26, 2000, in connection with the ESI
Acquisition.
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ARTICLE V
PURCHASE PRICE; CLOSING
5.1. PURCHASE PRICE. The aggregate purchase price for the Asset
Purchases other than the Real Property Purchases shall be an amount equal to
$8,200,000 (the "Purchase Price").
5.2. PAYMENT OF PURCHASE PRICE. At the Closing, New Kofile, New
Spectrum and ei Solutions shall pay the Purchase Price to Old Kofile, Old
Spectrum and Tyler, or their designees, by wire transfer of immediately
available funds, as set forth in Schedule 5.2.
5.3. CLOSING. The consummation of the Asset Purchases and the other
transactions described in this Agreement (the "Closing") shall take place at
10:00 a.m. Dallas, Texas time at the offices of Gardere & Wynne, L.L.P., 1601
Elm Street, Dallas, Texas, on September 29, 2000, or at such other time and date
as Sellers and Purchasers may mutually agree, which date shall be referred to as
the "Closing Date."
5.4. EFFECTIVE TIME. The effective time of the Kofile Purchase, the
Spectrum Purchase and the Real Property Purchases shall be at 12:01 a.m. local
time on October 1, 2000, unless Sellers and Purchasers shall otherwise mutually
agree in writing. The effective time of the Intangibles Purchase shall be as of
12:01 a.m. Dallas, Texas time on August 10, 2000.
5.5. TRANSFER OF CASH AND CASH EQUIVALENTS.
(a) Following the Closing, Sellers shall cooperate with New
Kofile and New Spectrum, as may be requested thereby, (i) to transfer
to New Kofile all cash and cash equivalents of Old Kofile that are on
hand as of the Closing and (ii) to transfer to New Spectrum all cash
and cash equivalents of Old Spectrum that are on hand as of the
Closing. Cash and cash equivalents of Kofile GmbH that are on hand as
of the Closing shall remain in the existing accounts of Kofile GmbH
with financial institutions (the "Kofile GmbH Bank Accounts") or
otherwise on hand. Cash and cash equivalents on hand as of the Closing
includes (w) amounts reported by the financial institutions holding the
Kofile Bank Accounts, the Spectrum Bank Accounts or the Kofile GmbH
Bank Accounts, as the case may be, plus (x) deposits in transit as of
the Closing to the Kofile Bank Accounts, the Spectrum Bank Accounts or
the Kofile GmbH Bank Accounts, as the case may be, less (y) checks
issued on the Kofile Bank Accounts, the Spectrum Bank Accounts or the
Kofile GmbH Bank Accounts, as the case may be, on or before the Closing
but not yet honored by the financial institutions holding such
accounts, which will be honored post-Closing by New Kofile, New
Spectrum or Kofile GmbH, respectively, plus (z) cash on hand that is
held as petty cash or otherwise (for either New Kofile, New Spectrum or
Kofile GmbH, the "Closing Cash Balance").
(b) Following the Closing, Tyler, Old Kofile and Old Spectrum
shall promptly forward and transfer to New Kofile or New Spectrum, as
the case may be, any amounts received by Tyler, Old Kofile or Old
Spectrum after the Closing Date with respect to an account receivable
of Old Kofile or Old Spectrum.
5.6. POST-CLOSING ADJUSTMENT TO PURCHASE PRICE. Within 45 days after
the Closing Date, the Purchase Price will be adjusted upward or downward in cash
in an amount equal to the sum of the Net Asset Value Adjustment and the Net Cash
Adjustment (the "Post-Closing Adjustment"). If the Post-Closing
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Adjustment is a positive number, then the Purchase Price shall be adjusted
upward and Purchasers shall promptly pay such amount to Sellers or their
designees by wire transfer of immediately available funds pursuant to written
instructions received from Sellers. If the Post-Closing Adjustment is a negative
number, the Purchase Price shall be adjusted downward and Sellers shall promptly
pay such amount (expressed as a positive number) to Purchasers or their
designees by wire transfer of immediately available funds pursuant to written
instructions received from Purchasers.
(a) The calculation of the Net Asset Value Adjustment shall be
set forth on Supplemental Schedule 5.6, which shall be agreed upon by
Sellers and Purchasers and attached to this Agreement within 45 days
after the Closing.
(i) The "Net Asset Value Adjustment" means the sum of
the Kofile Net Asset Value Adjustment and the
Spectrum Net Asset Value Adjustment.
(ii) The "Kofile Net Asset Value Adjustment" means the
Closing Kofile Net Asset Value less the Agreed
Kofile Net Asset Value.
(iii) The "Agreed Kofile Net Asset Value," which is set
forth on Schedule 5.6, means the net historical
carrying value of certain assets to be acquired less
certain liabilities assumed, as listed on Schedule
5.6 (the "Listed Assets and Liabilities"), of the
Kofile Business (including Kofile GmbH) as of June
30, 2000, as determined on a basis consistent with
Sellers' past practice in preparing internal
financial statements and in accordance with GAAP and
this Section 5.6(a).
(iv) The "Closing Kofile Net Asset Value" means the net
historical carrying value of the Listed Assets and
Liabilities of the Kofile Business (including Kofile
GmbH). The Closing Kofile Net Asset Value shall be
determined by Sellers and Purchasers as of the
Closing Date and will be determined on a basis
consistent with Sellers' past practice in preparing
internal financial statements and in accordance with
GAAP and this Section 5.6(a). The Closing Kofile Net
Asset Value shall be set forth on Supplemental
Schedule 5.6.
(v) The "Spectrum Net Asset Value Adjustment" means the
Closing Spectrum Net Asset Value less the Agreed
Spectrum Net Asset Value.
(vi) The "Agreed Spectrum Net Asset Value," which is set
forth on Schedule 5.6, means the net historical
carrying value of the Listed Assets and Liabilities
of the Spectrum Business as of June 30, 2000, as
determined on a basis consistent with Sellers' past
practice in preparing internal financial statements
and in accordance with GAAP and this Section 5.6(a).
(vii) The "Closing Spectrum Net Asset Value" means the net
historical carrying value of the Listed Assets and
Liabilities of the Spectrum Business. The Closing
Spectrum Net Asset Value shall be determined by
Sellers and
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Purchasers as of the Closing Date and will be
determined on a basis consistent with Sellers' past
practice in preparing internal financial statements
and in accordance with GAAP and this Section 5.6(a).
The Closing Spectrum Net Asset Value shall be set
forth on Supplemental Schedule 5.6.
(viii) For purposes of this Section 5.6(a), the financial
statements for Old Kofile (including Kofile GmbH)
and Old Spectrum will present an aggregate balance
of $200,000 for cash and cash equivalents and zero
balances for goodwill and related intangibles,
current and deferred federal and state income taxes,
certain accrued taxes, intercompany balances and any
other Excluded Kofile Liabilities and Excluded
Spectrum Liabilities.
(b) The calculation of the Net Cash Adjustment shall be set
forth on Supplemental Schedule 5.6, which shall be agreed upon by
Sellers and Purchasers and attached to this Agreement within 45 days
after the Closing. The "Net Cash Adjustment" means (i) the sum of (A)
the Closing Cash Balance for New Kofile, (B) the Closing Cash Balance
for New Spectrum and (C) the Closing Cash Balance for Kofile GmbH, less
(ii) $200,000.
5.7. ALLOCATION OF PURCHASE PRICE. Within 90 days of the Closing Date,
the parties shall agree upon the allocation of the Purchase Price among the
Kofile Assets, the Spectrum Assets, and the Intangibles. Such allocation shall
be set forth in Schedule 5.7 and attached to this Agreement. Such allocation
will be used by the parties for all Tax purposes and filings, including, without
limitation, IRS Form 8594.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLERS
Each Seller represents and warrants, jointly and severally, to
Purchasers, as of the date of this Agreement and as of the Closing Date, the
following:
6.1. DUE ORGANIZATION AND QUALIFICATION. Tyler is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Delaware. Each of Old Kofile and Old Spectrum is a corporation duly organized,
validly existing and in good standing under the Laws of the State of Texas. Each
Seller is duly authorized and qualified to do business under all applicable Laws
and to carry on its business in the places and in the manner as now conducted.
Each Seller has the requisite power and authority to own, lease and operate its
assets and properties and to carry on its business as such business is currently
being conducted.
6.2. AUTHORIZATION; NON-CONTRAVENTION; APPROVALS.
(a) Each Seller has the requisite power and authority to enter
into this Agreement and to effect the transactions described herein.
The execution, delivery and performance of this Agreement have been
approved by the board of directors of each Seller and, with respect to
Old Kofile and Old Spectrum, by BRC as each such Seller's sole
shareholder. No additional corporate proceedings on the part of any
Seller are necessary to authorize the execution and delivery of this
Agreement and
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the consummation by any Seller of the transactions described herein.
This Agreement has been duly and validly executed and delivered by each
Seller, and, assuming the due authorization, execution and delivery
hereof by each Purchaser, constitutes a valid and binding agreement of
each Seller, enforceable against each Seller in accordance with its
terms, subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to the
enforcement of creditors' rights generally and (ii) general equitable
principles.
(b) The execution and delivery of this Agreement by each
Seller do not, and the consummation by each Seller of the transactions
described herein will not, violate or result in a breach of any
provision of, or constitute a default (or an event which, with notice
or lapse of time or both, would constitute a default) under, or result
in the termination of, or accelerate the performance required by, or
result in a right of termination or acceleration under, or result in
the creation of any Encumbrances upon any of the properties or assets
of such Seller under any of the terms, conditions or provisions of, (i)
the Articles or Certificate of Incorporation or Bylaws of such Seller,
(ii) any Laws applicable to such Seller or any of its properties or
assets or (iii) any contract, agreement, lease, mortgage, deed of
trust, commitment, license, franchise, Permit, authorization or any
other instrument or obligation to which such Seller is a party or to
which any of the Assets are bound.
6.3. TITLE TO ASSETS.
(a) Old Kofile has good, indefeasible and marketable title to
the Kofile Assets, free and clear of all Encumbrances, other than (i)
the Permitted Encumbrances, or (ii) Encumbrances which will be released
or discharged at or prior to the Closing Date.
(b) Old Spectrum has good, indefeasible and marketable title
to the Spectrum Assets, free and clear of all Encumbrances, other than
(i) the Permitted Encumbrances, or (ii) Encumbrances which will be
released or discharged at or prior to the Closing Date.
(c) Tyler has good, indefeasible and marketable title to the
Intangibles, free and clear of all Encumbrances, other than (i) the
Permitted Encumbrances, or (ii) Encumbrances which will be released or
discharged at or prior to the Closing Date.
6.4. TAXES. Consummation of the transactions described in this
Agreement will not result in the imposition or creation of any Tax obligation on
the Assets, except for (a) Tax obligations that remain the liability of the
respective Sellers under Sections 2.4 and 3.4 hereof or (b) Tax obligations
resulting from any Tax election made by Purchasers after the Closing Date.
6.5. BROKERS AND FINDERS. Sellers have not engaged any broker, advisor
or finder as to which any Purchaser would have any liability whatsoever for any
brokerage fees, commission or finder's fees in connection with the transactions
described herein.
6.6. NO IMPLIED REPRESENTATIONS. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, IT IS THE EXPRESS UNDERSTANDING OF
PURCHASERS THAT SELLERS ARE NOT MAKING ANY REPRESENTATION OR WARRANTY
WHATSOEVER, EXPRESS OR IMPLIED, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES
OF
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SELLERS EXPRESSLY SET FORTH IN THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
Each Purchaser represents and warrants, severally and not jointly, to
Sellers, as of the date of this Agreement and as of the Closing Date, to the
extent in respect to such Purchaser:
7.1. DUE ORGANIZATION AND QUALIFICATION. Each of ei Solutions and New
Kofile is a corporation duly organized, validly existing and in good standing
under the Laws of the State of Delaware. New Spectrum is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Texas. Each Purchaser is duly authorized and qualified, or will be duly
authorized and qualified within 10 days after the Closing Date, to do business
under all applicable Laws and to carry on its business in the places and in the
manner as now conducted. Each Purchaser has the requisite power and authority to
own, lease and operate its assets and properties and to carry on its business as
such business is currently being conducted.
7.2. AUTHORIZATION; NON-CONTRAVENTION; APPROVALS.
(a) Each Purchaser has the full legal right, power and
authority to enter into this Agreement and to consummate the
transactions described herein. The execution, delivery and performance
of this Agreement has been approved by the board of directors of each
Purchaser. No additional corporate proceedings on the part of any
Purchaser are necessary to authorize the execution and delivery of this
Agreement and the consummation by any Purchaser of the transactions
described herein. This Agreement has been duly and validly executed and
delivered by each Purchaser, and, assuming the due authorization,
execution and delivery by each Seller, constitutes valid and binding
agreements of each Purchaser, enforceable against each Purchaser in
accordance with its terms, subject to (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting or relating
to the enforcement of creditors' rights generally and (ii) general
equitable principles.
(b) The execution and delivery of this Agreement by each
Purchaser do not, and the consummation by each Purchaser of the
transactions described herein will not, violate or result in a breach
of any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required
by, or result in a right of termination or acceleration under any of
the terms, conditions or provisions of (i) the Certificate or Articles
of Incorporation or Bylaws of such Purchaser, (ii) any Law applicable
to such Purchaser or any of its properties or assets or (iii) any
contract, agreement, lease, mortgage, deed of trust, commitment,
license, franchise, Permit, authorization or any other instrument or
obligation to which such Purchaser is a party.
Asset Purchase Agreement
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7.3. BROKERS AND FINDERS. Purchasers have not engaged any broker,
advisor or finder as to which any Seller would have any liability whatsoever for
any brokerage fees, commission or finder's fees in connection with the
transactions described herein.
7.4. NO IMPLIED REPRESENTATIONS. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THIS AGREEMENT, IT IS THE EXPRESS UNDERSTANDING OF SELLERS
THAT PURCHASERS ARE NOT MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, OTHER THAN THOSE REPRESENTATIONS AND WARRANTIES OF
PURCHASERS EXPRESSLY SET FORTH IN THIS AGREEMENT.
ARTICLE VIII
CERTAIN COVENANTS
8.1. CONDUCT OF BUSINESS. Pending the Closing, (a) Old Kofile and Old
Spectrum will each conduct its respective Business in the normal and usual
manner consistent with the continued operation thereof and (b) without the prior
approval of Purchasers (which approval will not be unreasonably withheld or
delayed), neither Old Kofile nor Old Spectrum will make any material change in
the policies affecting the operation and conduct of its respective Business.
Each of Old Kofile and Old Spectrum shall pay or otherwise satisfy in the
ordinary course of business its respective trade payables between the date of
this Agreement and the Closing Date.
8.2. FUTURE COOPERATION; TAX MATTERS. Sellers and Purchasers shall each
deliver or cause to be delivered to the other following the Closing such
additional instruments as the other may reasonably request for the purpose of
fully carrying out this Agreement. Sellers will cooperate and use its
commercially reasonable best efforts to have the present officers, directors and
employees of Sellers cooperate with Purchasers at and after the Closing in
furnishing information, evidence, testimony and other assistance in connection
with any actions, proceedings, arrangements or disputes of any nature with
respect to matters pertaining to all periods prior to the Closing. Following the
Closing, Sellers shall give to Purchasers free and unrestricted access to (and
the right to make copies at the expense of Purchasers) the books, files, records
and Tax returns and supporting schedules and work papers of Sellers to the
extent that such relate to the Businesses, the Kofile Assets, the Spectrum
Assets or to the operations, income, expenses and assets of Old Kofile or Old
Spectrum existing on, accruing or arising prior to or occurring prior to the
Closing Date; provided, however, that any access pursuant to this Section 8.2
shall be conducted in such a manner as not to interfere unreasonably with the
operations of the business of the Sellers following the Closing Date. Purchasers
will provide Sellers with access to such of their books and records as may be
reasonably requested by Purchasers in connection with federal, state and local
Tax matters relating to periods prior to the Closing. The party requesting
cooperation, information or actions under this Section 8.2 shall reimburse the
other party for all reasonable out-of-pocket costs and expenses paid or incurred
in connection therewith, which costs and expenses shall not, however, include
per diem charges for employees or allocations of overhead charges.
8.3. TAX STATUS AND EFFECT. It is understood and agreed that neither
Sellers nor Purchasers have made any representations to the other as to the Tax
status or Tax effect of the transactions described in this Agreement, and each
of the parties is therefore separately taking advice and counsel as to such
matters, and
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each is assuming, subject only to the express and specific provisions of this
Agreement, the Tax, if any, which may be incurred by reason of the carrying out
of the terms and provisions hereof.
8.4. EXPENSES. Each party to this Agreement will pay the fees, expenses
and disbursements of such party and its agents, representatives, accountants and
counsel incurred in connection with the execution, delivery and performance of
this Agreement and the consummation of the transactions described herein.
8.5. CONSENTS TO ASSIGNMENT. Tyler, Old Kofile and Old Spectrum,
respectively, will use reasonable business efforts to cooperate with New Kofile
and New Spectrum in securing all necessary consents of third parties to the
assignment, respectively, of the Assumed Kofile Contracts and the Assumed
Spectrum Contracts.
8.6. SUBCONTRACTS. Following Closing, Old Kofile and Old Spectrum,
respectively, will subcontract or sublicense to New Kofile and New Spectrum, in
the form attached to this Agreement as Exhibit B, dated as of the Closing Date
the Excluded Kofile Contracts and the Excluded Spectrum Contracts.
8.7. NAME CHANGE; CORPORATE EXISTENCE. Not later than the next business
day after the Closing, each of Old Kofile and Old Spectrum shall cause Articles
of Amendment to its Articles of Incorporation to be filed with the Secretary of
State of the State of Texas to change its name to "Tyler K, Inc." and "Tyler SD,
Inc.," respectively. Tyler agrees to maintain the corporate existence of Old
Kofile and Old Spectrum as long as there are any Excluded Contracts.
8.8. BULK SALES. To the extent, if any, that the same are applicable to
the Asset Purchases, the parties hereby waive compliance with Article 6 of the
Uniform Commercial Code as adopted in each jurisdiction in which any of the
Assets are located, as well as Section 1141(c) of the New York Tax Law and any
similar Laws in other jurisdictions.
8.9. RELATED TRANSACTIONS. The parties acknowledge and agree that
following related transactions are intended to be consummated contemporaneously
with the Asset Purchases on the Closing Date to be effective as set forth in
Section 5.4:
(a) the execution and delivery by BRC, Old Spectrum and Real
Property Purchaser of the Real Property Purchase Agreement.
(b) the execution and delivery by Real Property Purchaser as
landlord and Government Records Services, Inc., a Texas corporation,
wholly owned subsidiary of BRC and indirect wholly owned subsidiary of
Tyler, as tenant, and Tyler as guarantor, of a lease agreement with
respect to the Mockingbird Property in the form attached to this
Agreement as Exhibit C.
(c) the execution and delivery by Tyler, BRC as employer and
Oates as employee of an amendment, in the form attached to this
Agreement as Exhibit D, to that certain Employment and Noncompetition
Agreement dated as of October 8, 1997, by and between Tyler, BRC and
Oates.
8.10. PAYMENT OF LIABILITIES. Each of Old Kofile and Old Spectrum shall
fully pay or otherwise satisfy all other claims or liabilities relating to its
respective Assets or Business incurred through the Closing Date other than the
Assumed Liabilities.
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8.11. TRANSITION SERVICES. For a period of up to one year after the
Closing, Tyler agrees that Tyler and/or BRC will provide to New Kofile and New
Spectrum such transition services as may be reasonably requested by New Kofile
or New Spectrum, including, without limitation, human resources, payroll,
accounting, data processing and other administrative services, provided that
such services are reasonably comparable to the services provided to Old Kofile
and Old Spectrum, respectively, prior to the Closing. Tyler or BRC, as the case
may be, shall bill, not more than once per month, the respective Purchaser for
its actual costs of providing such services, and New Kofile and New Spectrum
agree to promptly pay Tyler or BRC for such services as billed; provided,
however, that with respect to any disbursements of payroll or payroll taxes by
Tyler or BRC on behalf of New Kofile or New Spectrum, New Kofile or New
Spectrum, as the case may be, shall, prior to or concurrently with any such
disbursement, transfer to Tyler or BRC, as the case may be, immediately
available funds in an amount equal to any such disbursement.
ARTICLE IX
INDEMNIFICATION
Tyler, Old Kofile, Old Spectrum, ei Solutions, New Kofile and New
Spectrum each make the following covenants:
9.1. INDEMNIFICATION BY OLD KOFILE AND OLD SPECTRUM. Subject to
Sections 9.5 and 9.6, Sellers covenant and agree that they will, jointly and
severally, indemnify, defend, protect and hold harmless Purchasers and their
respective officers, directors, employees, stockholders, agents, representatives
and Affiliates, at all times from and after the date of this Agreement from and
against all Losses incurred by any of such indemnified persons as a result of or
arising from (a) until the Expiration Date, any breach of the representations
and warranties of any Seller set forth herein or in the Schedules or
certificates delivered in connection herewith, (b) any breach or nonfulfillment
of any covenant or agreement on the part of any Seller under this Agreement, (c)
the Excluded Kofile Liabilities or (d) the Excluded Spectrum Liabilities.
9.2. INDEMNIFICATION BY NEW KOFILE AND NEW SPECTRUM. Subject to
Sections 9.5 and 9.6, each Purchaser covenants and agrees that it will,
severally and not jointly, indemnify, defend, protect and hold harmless Sellers
and their respective officers, directors, employees, stockholders, agents,
representatives and Affiliates, at all times from and after the date of this
Agreement from and against all Losses incurred by any of such indemnified
persons as a result of or arising from (a) until the Expiration Date, any breach
of the representations and warranties of such Purchaser set forth herein or in
the Schedules or certificates attached hereto, (b) any breach or nonfulfillment
of any covenant or agreement on the part of such Purchaser under this Agreement,
(c) any Assumed Kofile Liabilities or any debt, obligation or liability of New
Kofile arising after the Closing Date with respect to New Kofile's operation of
the Kofile Business (as to Old Kofile) and (d) any Assumed Spectrum Liabilities
or any debt, obligation or liability of New Spectrum arising after the Closing
Date with respect to New Spectrum's operation of the Spectrum Business (as to
Old Spectrum).
9.3. THIRD PERSON CLAIMS. Promptly after any party hereto (hereinafter
the "Indemnified Party") has received notice of or has knowledge of any claim by
a person not a party to this Agreement ("Third Person"), of the commencement of
any action or proceeding by a Third Person that the Indemnified Party believes
in good faith is an indemnifiable claim under this Agreement, the Indemnified
Party shall give to the party obligated to provide indemnification pursuant to
Section 9.1 or 9.2 hereof (hereinafter the
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"Indemnifying Party") written notice of such claim or the commencement of such
action or proceeding, provided, however, that failure to give such notice shall
not preclude the Indemnified Party from making any claim thereon if the failure
or delay in giving such notice did not prejudice the Indemnifying Party. Such
notice shall state the nature and the basis of such claim and a reasonable
estimate of the amount thereof. The Indemnifying Party shall have the right to
defend and settle, at its own expense and by its own counsel, any such matter so
long as the Indemnifying Party pursues the same diligently and in good faith. If
the Indemnifying Party undertakes to defend or settle, it shall promptly notify
the Indemnified Party of its intention to do so, and the Indemnified Party shall
cooperate with the Indemnifying Party and its counsel in all commercially
reasonable respects in the defense thereof and in any settlement thereof. Such
cooperation shall include, but shall not be limited to, furnishing the
Indemnifying Party with any books, records and other information reasonably
requested by the Indemnifying Party and in the Indemnified Party's possession or
control. After the Indemnifying Party has notified the Indemnified Party of its
intention to undertake to defend or settle any such asserted liability, and for
so long as the Indemnifying Party diligently pursues such defense, the
Indemnifying Party shall not be liable for any additional legal expenses
incurred by the Indemnified Party in connection with any defense or settlement
of such asserted liability; provided, however, that the Indemnified Party shall
be entitled, at its expense, to participate in the defense of such asserted
liability and the negotiations of the settlement thereof. The Indemnifying Party
shall not settle any such Third Person claim without the consent of the
Indemnified Party, unless the settlement thereof imposes no liability or
obligation on, and includes a complete release from liability of, the
Indemnified Party. If the Indemnifying Party desires to accept a final and
complete settlement of any such Third Person claim and the Indemnified Party
refuses to consent to such settlement, then the Indemnifying Party's liability
under this Section with respect to such Third Person claim shall be limited to
the amount so offered in settlement by said Third Person; provided, however,
that notwithstanding the foregoing, the Indemnified Party shall be entitled to
refuse to consent to any such proposed settlement and the Indemnifying Party's
liability hereunder shall not be limited by the amount of the proposed
settlement if such settlement does not provide for the complete release of the
Indemnified Party. If, upon receiving notice, the Indemnifying Party does not
timely undertake to defend such matter to which the Indemnified Party is
entitled to indemnification hereunder, or fails to pursue such defense in a
reasonably diligent manner, the Indemnified Party may undertake such defense
through counsel of its choice, at the cost and expense of the Indemnifying
Party, and the Indemnified Party may settle such matter, in its discretion, and
the Indemnifying Party shall reimburse the Indemnified Party for the amount paid
in such settlement and any other liabilities or expenses incurred by the
Indemnified Party in connection therewith.
9.4. NON-THIRD PERSON CLAIMS. In the event that any Indemnified Party
asserts the existence of a claim under ARTICLE IX giving rise to Losses (but
excluding claims resulting from the assertion of liability by Third Persons),
such party shall give written notice to the Indemnifying Party. Such written
notice shall state that it is being given pursuant to this Section 9.4, specify
the nature and amount of the claim asserted, and indicate the date on which such
assertion shall be deemed accepted and the amount of the claim deemed a valid
claim (such date to be established in accordance with the next sentence). If
such Indemnifying Party, within 60 days after the mailing of notice by such
Indemnified Party, shall not give written notice to such Indemnified Party
announcing such Indemnifying Party's intent to contest such assertion of such
Indemnified Party, such assertion shall be deemed accepted and the amount of
such claim shall be deemed a valid claim. In the event, however, that such
Indemnifying Party contests such assertion of a claim by giving such written
notice to the Indemnified Party within said period, then the parties shall
negotiate in good faith in an attempt to resolve such claim. In the event that
litigation shall arise with respect to any such claim, the prevailing party
shall be entitled to reimbursement of costs and expenses incurred in
Asset Purchase Agreement
22
<PAGE> 24
connection with such litigation including reasonable attorneys' fees, if the
parties hereto, acting in good faith, cannot reach agreement with respect to
such claim within 60 days after the notice provided by the Indemnified Party.
9.5. INDEMNIFICATION DEDUCTIBLE. Neither Sellers nor Purchasers shall
be entitled to indemnification from the other under the provisions of Section
9.1(a) or Section 9.2(a), as the case may be, until such time as, and only to
the extent that, the claims subject to indemnification by such other party
exceed, in the aggregate, $25,000. Notwithstanding the foregoing, the
limitations set forth in this Section 9.5 shall not apply to fraudulent
misrepresentations.
9.6. INDEMNIFICATION LIMITATION. Subject to Section 9.5, the aggregate
indemnification obligation of Sellers under Section 9.1(a) and of Purchasers
under Section 9.2(a) shall be limited to the Purchase Price. Notwithstanding the
foregoing, the limitations set forth in this Section 9.6 shall not apply to
fraudulent misrepresentations.
ARTICLE X
CONDITIONS TO CLOSING
10.1. CONDITIONS TO OBLIGATIONS OF PURCHASERS. Except as may be waived
by Purchasers, the obligations of Purchasers to consummate the transactions
described herein are subject to satisfaction of the following conditions:
(a) The Kofile Assets, the Spectrum Assets and the Intangibles
shall be free and clear of all Encumbrances, except for Permitted
Encumbrances.
(b) Purchasers shall have received from Sellers the respective
items, and Sellers shall have taken the actions required of each of
them, pursuant to ARTICLE XI.
(c) All conditions of BRC and Old Spectrum to closing and all
closing requirements of Real Property Purchaser set forth in the Real
Property Purchase Agreement shall have been satisfied.
(d) Sellers shall have delivered to Purchasers on or before
the Closing Date certificates of existence and good standing for each
Seller issued by the appropriate Governmental Authorities of the state
in which such Seller is incorporated and each certificate shall be
dated within ten days of the Closing Date.
(e) No action, suit or proceeding before any Governmental
Authority to enjoin the transactions described in this Agreement or its
consummation will have been instituted on or before the Closing Date.
(f) The representations of the Sellers under this Agreement
and in each agreement, document or instrument delivered pursuant hereto
or in connection with the transactions described herein on or before
the Closing Date shall have been true and correct in all material
respects on and as of the date thereof and shall be true and correct in
all material respects as of and on the Closing Date, as though made on
and as of the Closing Date.
Asset Purchase Agreement
23
<PAGE> 25
(g) Sellers shall have performed in all material respects the
covenants, agreements and obligations required to be performed by each
of them under this Agreement prior to and on the Closing Date.
10.2. CONDITIONS TO OBLIGATIONS OF SELLERS. Except as may be waived by
Sellers, the obligation of the Sellers to consummate the transactions described
herein is subject to satisfaction of the following conditions:
(a) Sellers shall have received from Purchasers the respective
items, and Purchasers shall have taken the actions required of each of
them, pursuant to ARTICLE XI.
(b) All conditions of Real Property Purchaser to closing and
all closing requirements of BRC and Old Spectrum set forth in the Real
Property Purchase Agreement shall have been satisfied.
(c) Purchasers shall have delivered to Sellers on or before
the Closing Date certificates of existence and good standing for each
Purchaser that is a corporation issued by the appropriate Governmental
Authorities of the state in which such Seller is incorporated and each
certificate shall be dated within ten days of the Closing Date.
(d) Tyler shall have received all necessary consents or
approvals from its senior lenders with respect to the transactions
described herein.
(e) The Board of Directors of Tyler shall have received a
written opinion from Stephens Inc. that the Asset Purchases are fair
from a financial point of view to the stockholders of Tyler.
(f) No action, suit or proceeding before any Governmental
Authority to enjoin the transactions described in this Agreement or its
consummation will have been instituted on or before the Closing Date.
(g) The representations of the Purchasers under this Agreement
and in each agreement, document or instrument delivered pursuant hereto
or in connection with the transactions described herein on or before
the Closing Date shall have been true and correct in all material
respects on and as of the date thereof and shall be true and correct in
all material respects as of and on the Closing Date, as though made on
and as of the Closing Date.
(h) Purchasers shall have performed in all material respects
the covenants, agreements and obligations required to be performed by
each of them under this Agreement prior to and on the Closing Date.
Asset Purchase Agreement
24
<PAGE> 26
ARTICLE XI
ACTIONS AT CLOSING
11.1. TRANSFERS AT CLOSING. At Closing:
(a) Old Kofile and New Kofile shall deliver to each other a
completed Bill of Sale, Receipt and Assignment and Assumption
Agreement, in the form attached as Exhibit E, covering all of the
Kofile Assets and Assumed Kofile Liabilities, duly executed by Old
Kofile and New Kofile.
(b) Old Spectrum and New Spectrum shall deliver to each other
a completed Bill of Sale, Receipt and Assignment and Assumption
Agreement, in the form attached as Exhibit F, covering all of the
Spectrum Assets and Assumed Spectrum Liabilities, duly executed by Old
Spectrum and New Spectrum.
(c) Tyler shall deliver to ei Solutions a completed Bill of
Sale and Receipt, in the form attached as Exhibit G, covering all of
the Intangibles, duly executed by Tyler.
(d) Sellers shall deliver to Purchasers articles of transfer,
assignments, licenses and such other instruments of transfer and
conveyance, each duly executed by the appropriate Seller, as shall be
reasonably necessary or appropriate to vest in appropriate Purchaser
good and indefeasible title to the respective Assets, free and clear of
all Encumbrances other than Permitted Encumbrances and to comply with
the purposes and intent of this Agreement.
(e) Sellers shall deliver to Purchasers releases of all
Encumbrances relating to the Assets (except for Permitted
Encumbrances), duly executed by each respective lienholder.
(f) Sellers shall have delivered to Purchasers a certificate
confirming the satisfaction of the conditions set forth in Section
10.1(f) and (g).
(g) Purchasers shall have delivered to Sellers a certificate
confirming the satisfaction of the conditions set forth in Section
10.2(g) and (h).
(h) Purchasers shall deliver to Sellers the Purchase Price,
payable as provided in Section 5.2.
11.2. CONSENTS. At Closing, Sellers or Purchasers will deliver all
necessary consents of third parties to the assignment of the Assumed Contracts;
provided, however, that if the parties have been unable, after reasonable
attempts, to obtain one or more of such consents, and either (a) the parties
enter into a subcontract or sublicense, as contemplated by Section 8.6, with
respect to the contract or agreement to which such consent pertains, or (b) the
loss of the contract, agreement or license to which such consent pertains would
not, when taken as a whole with all other failures to obtain consents, have a
material adverse effect on the operations or the financial condition of the
respective Business taken as a whole, then the parties' failure to obtain such
consent will not constitute a failure of compliance with the provisions of this
Section 11.2.
Asset Purchase Agreement
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<PAGE> 27
ARTICLE XII
MISCELLANEOUS
12.1. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement and the rights
of the parties hereunder may not be assigned (except by operation of Law)
without the prior written consent of the other party. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
successors and permitted assigns, including, without limitation, the heirs and
representatives of any party that is an individual.
12.2. ENTIRE AGREEMENT. This Agreement (including the Schedules) and
the documents delivered pursuant hereto constitute the entire agreement and
understanding among the parties and supersede any prior agreement and
understanding relating to the subject matter of this Agreement.
12.3. AMENDMENT; WAIVER. This Agreement may be modified or amended only
by a written instrument executed by the parties hereto, acting, as the case may
be, through their respective officers, duly authorized by their respective
Boards of Directors. No waiver of compliance with any provision or condition
hereof, and no consent provided for herein, will be effective unless evidenced
by an instrument in writing duly executed by the party sought to be charged
therewith. No failure on the part of any party to exercise, and no delay in
exercising, any of its rights hereunder will operate as a waiver thereof, nor
will any single or partial exercise by any party of any right preclude any other
or future exercise thereof or the exercise of any other right.
12.4. NOTICES. Each notice, demand, waiver, consent and other
communication required or permitted to be given hereunder will be in writing and
will be sent either by (a) registered or certified first-class mail, postage
prepaid and return receipt requested, (b) national commercial courier service or
(c) telex or facsimile, in each case addressed as follows:
(a) If to any Purchaser, addressed to it at:
c/o eiStream, Inc.
2800 W. Mockingbird Lane
Dallas, Texas 75235
Attn: John D. Woolf
Facsimile: 214-902-0211
(b) If to any Seller, addressed to it at:
c/o Tyler Technologies, Inc.
2800 W. Mockingbird Lane
Dallas, Texas 75235
Attn: H. Lynn Moore, Jr., Esq.
Facsimile: 214-902-5058
Each such notice and other communication given by mail will be deemed to have
been given when it is deposited in the United States mail in the manner
specified herein, each such notice and other communication given by national
commercial courier service will be deemed to have been given when it
Asset Purchase Agreement
26
<PAGE> 28
is delivered to such service, and each such notice and other communication given
by telex or facsimile will be deemed to have been given when it is so
transmitted and the appropriate answerback or confirmation of transmittal is
received. Any party may change its address for the purpose hereof by giving
notice in accordance with the provisions of this Section 12.4.
12.5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties set forth in ARTICLE VI and ARTICLE VII shall survive the Closing
for a period of 18 months from the Closing Date (the "Expiration Date").
12.6. EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise provided
herein, no delay of or omission in the exercise of any right, power or remedy
accruing to any party as a result of any breach or default by any other party
under this Agreement shall impair any such right, power or remedy, nor shall it
be construed as a waiver of or acquiescence in any such breach or default, or of
any similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
12.7. REFORMATION AND SEVERABILITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal and unenforceable,
but so as to most nearly retain the intent of the parties, and if such
modification is not possible, such provision shall be severed from this
Agreement, and in either case, the validity, legality and enforceability of the
remaining provisions of this Agreement shall not in any way be affected or
impaired thereby.
12.8. GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Texas (except for its principles governing
conflicts of laws).
12.9. DISPUTE RESOLUTION.
(a) If any dispute arises between any parties to this
regarding this Agreement or the transactions described herein, the
persons named or referred to in Section 12.4 for each party will
attempt in good faith to resolve the dispute. If those individuals have
not agreed to a resolution within 30 days from the date on which the
dispute was first presented to them, any party, by written notice to
the other parties, may require that the dispute be submitted for
resolution to, on behalf of Purchasers, Oates and, on behalf of
Sellers, the chief executive officer of Tyler (the "Designated
Parties"). The Designated Parties will meet, in person or by other
means satisfactory to them, to attempt to resolve the dispute within 30
days after reference of the matter to them. If the Designated Parties
reach a decision within such 30-day period, their decision will be
final and binding on the parties for all purposes. If the Designated
Parties fail to resolve the dispute within such period, the matter may
be referred for arbitration as provided by Section 12.9(b).
(b) Except as provided by Section 12.9(a), all disputes or
controversies (whether of law or fact) of any nature whatsoever arising
from or relating to this Agreement and the transactions described
herein will be decided by arbitration by the American Arbitration
Association (the "AAA") in accordance with the Commercial Arbitration
Rules of the Association. The arbitrators will be selected as follows:
the Designated Parties will, within 30 days of the date of demand by
any Purchaser or Seller for arbitration, each select one independent,
qualified arbitrator and the two
Asset Purchase Agreement
27
<PAGE> 29
arbitrators so selected will select the third arbitrator within 30 days
after their appointment as party arbitrators. Each party will bear the
expenses of the arbitrator chosen by it, and will bear one-half the
expenses of the independent arbitrator. Hearings in the proceeding will
commence within 120 days of the selection of the independent
arbitrator. Arbitration will take place in Dallas, Texas. Arbitration
proceedings will be conducted confidentially; in such case all
documents, testimony and records will be received, heard and maintained
by the arbitrators in confidence under seal, available for inspection
only by AAA and the parties and their respective attorneys and experts,
who will agree in advance and in writing to receive all such
information confidentially and to maintain such information in
confidence. The decree or award rendered by the arbitrators, who will
act by majority vote, may be entered as a final and binding judgment in
any court having jurisdiction thereof.
(c) All negotiations and proceedings pursuant to this Section
12.9 will be confidential and will be treated as compromise and
settlement negotiations for purposes of the United States Federal Rules
of Evidence and any applicable state rules of evidence, provided that
any party may specifically waive these rights of privilege and
confidentiality with respect to any communications it makes pursuant to
this Section 12.9.
12.10. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original and all of
which together shall constitute but one and the same instrument. Facsimile
transmission of any signed original document and/or retransmission of any signed
facsimile transmission will be deemed the same as delivery of an original. At
the request of any party, the parties will confirm facsimile transmission by
signing a duplicate original document.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Asset Purchase Agreement
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<PAGE> 30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
TYLER TECHNOLOGIES, INC.
By:
---------------------------------------
Name: H. Lynn Moore, Jr.
-------------------------------------
Title: Corporate Counsel
------------------------------------
KOFILE, INC.
By:
---------------------------------------
Name: H. Lynn Moore, Jr.
-------------------------------------
Title: Secretary
------------------------------------
SPECTRUM DATA, INC.
By:
---------------------------------------
Name: H. Lynn Moore, Jr.
-------------------------------------
Title: Secretary
------------------------------------
ei SOLUTIONS, INC.
By:
---------------------------------------
Name: John D. Woolf
-------------------------------------
Title: Vice President
------------------------------------
KOFILE ACQUISITION CORPORATION
By:
---------------------------------------
Name: John D. Woolf
-------------------------------------
Title: Vice President
------------------------------------
SPECTRUM DATA ACQUISITION CORPORATION
By:
---------------------------------------
Name: John D. Woolf
-------------------------------------
Title: Vice President
------------------------------------
Asset Purchase Agreement--Signature Page
<PAGE> 31
TABLE OF CONTENTS
<TABLE>
<S> <C> <C>
ARTICLE I
DEFINITIONS
1.1. DEFINITIONS..............................................................2
1.2. INTERPRETATION...........................................................6
ARTICLE II
THE KOFILE PURCHASE
2.1. ACQUISITION OF THE KOFILE ASSETS.........................................6
2.2. EXCLUDED KOFILE ASSETS...................................................8
2.3. ASSIGNMENT AND ASSUMPTION OF CONTRACTS...................................9
2.4. ASSUMED LIABILITIES......................................................9
2.5. LIABILITIES NOT ASSUMED..................................................9
ARTICLE III
THE SPECTRUM PURCHASE
3.1. ACQUISITION OF THE SPECTRUM ASSETS......................................10
3.2. EXCLUDED SPECTRUM ASSETS................................................11
3.3. ASSIGNMENT AND ASSUMPTION OF CONTRACTS..................................12
3.4. ASSUMED LIABILITIES.....................................................12
3.5. LIABILITIES NOT ASSUMED.................................................12
ARTICLE IV
OTHER PURCHASES
4.1. ACQUISITION OF THE REAL PROPERTY........................................13
4.2. ACQUISITION OF THE INTANGIBLES..........................................13
ARTICLE V
PURCHASE PRICE; CLOSING
5.1. PURCHASE PRICE..........................................................14
5.2. PAYMENT OF PURCHASE PRICE...............................................14
5.3. CLOSING.................................................................14
5.4. EFFECTIVE TIME..........................................................14
5.5. TRANSFER OF CASH AND CASH EQUIVALENTS...................................14
5.6. POST-CLOSING ADJUSTMENT TO PURCHASE PRICE...............................14
5.7. ALLOCATION OF PURCHASE PRICE............................................16
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF SELLERS
6.1. DUE ORGANIZATION AND QUALIFICATION......................................16
6.2. AUTHORIZATION; NON-CONTRAVENTION; APPROVALS.............................16
6.3. TITLE TO ASSETS.........................................................17
6.4. TAXES...................................................................17
6.5. BROKERS AND FINDERS.....................................................17
</TABLE>
Asset Purchase Agreement
<PAGE> 32
<TABLE>
<S> <C> <C>
6.6. NO IMPLIED REPRESENTATIONS..............................................17
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
7.1. DUE ORGANIZATION AND QUALIFICATION......................................18
7.2. AUTHORIZATION; NON-CONTRAVENTION; APPROVALS.............................18
7.3. BROKERS AND FINDERS.....................................................19
7.4. NO IMPLIED REPRESENTATIONS..............................................19
ARTICLE VIII
CERTAIN COVENANTS
8.1. CONDUCT OF BUSINESS.....................................................19
8.2. FUTURE COOPERATION; TAX MATTERS.........................................19
8.3. TAX STATUS AND EFFECT...................................................19
8.4. EXPENSES................................................................20
8.5. CONSENTS TO ASSIGNMENT..................................................20
8.6. SUBCONTRACTS............................................................20
8.7. NAME CHANGE; CORPORATE EXISTENCE........................................20
8.8. BULK SALES..............................................................20
8.9. RELATED TRANSACTIONS....................................................20
8.10. PAYMENT OF LIABILITIES.................................................20
8.11. TRANSITION SERVICES....................................................21
ARTICLE IX
INDEMNIFICATION
9.1. INDEMNIFICATION BY OLD KOFILE AND OLD SPECTRUM..........................21
9.2. INDEMNIFICATION BY NEW KOFILE AND NEW SPECTRUM..........................21
9.3. THIRD PERSON CLAIMS.....................................................21
9.4. NON-THIRD PERSON CLAIMS.................................................22
9.5. INDEMNIFICATION DEDUCTIBLE..............................................23
9.6. INDEMNIFICATION LIMITATION..............................................23
ARTICLE X
CONDITIONS TO CLOSING
10.1. CONDITIONS TO OBLIGATIONS OF PURCHASERS................................23
10.2. CONDITIONS TO OBLIGATIONS OF SELLERS...................................24
ARTICLE XI
ACTIONS AT CLOSING
11.1. TRANSFERS AT CLOSING...................................................25
11.2. CONSENTS...............................................................25
</TABLE>
Asset Purchase Agreement
ii
<PAGE> 33
<TABLE>
<S> <C> <C>
ARTICLE XII
MISCELLANEOUS
12.1. ASSIGNMENT; SUCCESSORS AND ASSIGNS.....................................26
12.2. ENTIRE AGREEMENT.......................................................26
12.3. AMENDMENT; WAIVER......................................................26
12.4. NOTICES................................................................26
12.5. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.............................27
12.6. EXERCISE OF RIGHTS AND REMEDIES........................................27
12.7. REFORMATION AND SEVERABILITY...........................................27
12.8. GOVERNING LAW..........................................................27
12.9. DISPUTE RESOLUTION.....................................................27
12.10. COUNTERPARTS...........................................................28
</TABLE>
Asset Purchase Agreement
iii
<PAGE> 34
EXHIBIT A
REAL PROPERTY PURCHASE AGREEMENT
Asset Purchase Agreement
<PAGE> 35
EXHIBIT B
FORM OF SUBCONTRACT
Asset Purchase Agreement
<PAGE> 36
EXHIBIT C
LEASE AGREEMENT
Asset Purchase Agreement
<PAGE> 37
EXHIBIT D
AMENDMENT TO EMPLOYMENT AND NONCOMPETITION AGREEMENT
Asset Purchase Agreement
<PAGE> 38
EXHIBIT E
BILL OF SALE, RECEIPT AND ASSIGNMENT AND ASSUMPTION AGREEMENT
(KOFILE PURCHASE)
Asset Purchase Agreement
<PAGE> 39
EXHIBIT F
BILL OF SALE, RECEIPT AND ASSIGNMENT AND ASSUMPTION AGREEMENT
(SPECTRUM PURCHASE)
Asset Purchase Agreement
<PAGE> 40
EXHIBIT G
BILL OF SALE AND RECEIPT
(INTANGIBLES PURCHASE)
Asset Purchase Agreement
<PAGE> 41
SCHEDULE 5.2
PAYMENT OF PURCHASE PRICE
RECIPIENT(S):
<TABLE>
<S> <C> <C>
Name: Bank of America, N.A.
Amount: $8,200,000.00
Wire Instructions:
Bank Name: Bank of America, N.A.
ABA Routing No.: 111000012
Account No.: 1292000883
Attn: Credit Services, Re: Tyler Technologies
</TABLE>
Asset Purchase Agreement
<PAGE> 42
SCHEDULE 5.6
ADJUSTMENTS TO PURCHASE PRICE
1. See attached schedule for Agreed Kofile Net Asset Value and Agreed
Spectrum Net Asset Value.
2. Schedule of Closing Kofile Net Asset Value and Closing Spectrum Net
Asset Value to be mutually agreed upon and attached as part of
Supplemental Schedule 5.6 within 45 days after the Closing Date.
3. Calculation of Net Asset Value Adjustment to be mutually agreed upon
and attached as part of Supplemental Schedule 5.6 within 45 days after
the Closing Date.
4. Calculation of Net Cash Adjustment to be mutually agreed upon and
attached as part of Supplemental Schedule 5.6 within 45 days after the
Closing Date.
Asset Purchase Agreement
<PAGE> 43
SCHEDULE 5.7
ALLOCATION OF PURCHASE PRICE
To be mutually agreed upon and attached within 90 days after the
Closing Date.
Asset Purchase Agreement
