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Title: |
Stock Purchase Agreement |
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Date: |
2002 |
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Preview shows 26KB of 206KB total |
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$75 |
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ID: |
#1111670 |
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STOCK PURCHASE AGREEMENT
Dated as of February 5, 2002
by and between
AMERICAN SOFTWARE, INC.
and
INFOCROSSING, INC.
================================================================================
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement") dated as of February 5,
---------
2002 by and among AMERICAN SOFTWARE, INC., a Georgia corporation ("Seller") and
------
INFOCROSSING, INC., a Delaware corporation ("Purchaser").
---------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Seller owns 1,000 shares (the "Shares") of common stock, no
------
par value, of AMQUEST, INC., a Georgia corporation (the "Company"), such Shares
-------
being all of the outstanding shares of capital stock of the Company;
WHEREAS, Seller desires to sell, and Purchaser desires to purchase, the
Shares pursuant to this Agreement; and
WHEREAS, it is the intention of the parties hereto that, upon
consummation of the purchase and sale of the Shares pursuant to this Agreement,
Purchaser shall own all of the outstanding shares of capital stock of the
Company.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and promises hereinafter contained, and other good and valuable
consideration, the sufficiency of which is hereby acknowledged, the parties
hereto intending to be legally bound hereby agree as follows:
ARTICLE I
DEFINITIONS
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(S)1.1 Definitions.
-----------
(a) Defined Terms. When used in this Agreement, the following terms
-------------
shall have the respective meanings specified therefor below.
"Affiliate" shall mean, with respect to any Person, any other Person
---------
directly or indirectly controlling, controlled by, or under common control with,
such Person; provided that, for the purposes of this definition, "control"
--------
(including, with correlative meanings, the terms "controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise and provided, further,
-------- -------
that an Affiliate of any Person shall also include (i) any Person that directly
or indirectly owns more than five percent (5%) of any class of capital stock or
other equity interest of such Person, (ii) any officer, director, trustee or
beneficiary of such Person, (iii) any spouse, parent, sibling or descendant of
any Person described in clauses (i) or (ii) above, and (iv) any trust for the
benefit of any Person described in clauses (i) through (iii) above or for any
spouse, issue or lineal descendant of any Person described in clauses (i)
through (iii) above.
"Application Service Provider Services" shall mean the management and
-------------------------------------
distribution of Seller Software based services and solutions to Persons from a
data center that is (i) owned or leased by a Seller Entity, and (ii) operated by
a Seller Entity.
"Business Day" shall mean any day, other than a Saturday, Sunday or a
------------
day on which banks located in New York, New York or Atlanta, Georgia shall be
authorized or required by law to close.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
----
time to time and the regulations promulgated and the rulings issued thereunder.
Section references to the Code are to the Code, as in effect at Closing Date and
any subsequent provisions of the Code, amendatory thereof, supplemental thereto
or substituted therefor.
"Company Intellectual Property" shall mean any Intellectual Property or
-----------------------------
rights thereto used by the Company in connection with its business and owned by
or under license to the Company, the Seller or American Software USA, Inc.
Company Intellectual Property (i) shall include, without limitation, any item
reflected on the Unaudited Balance Sheet, and (ii) shall not include application
software products or data provided by and hosted for third parties.
"Company Property" shall mean any real property and improvements owned
----------------
(directly, indirectly, or beneficially), leased, used, operated or occupied by
the Company.
"Environmental Law" shall mean any Law, Order or other requirement of
-----------------
Law, including any principle of common Law, relating to the protection of human
health or the environment, or to the manufacture, use, transport, treatment,
storage, disposal, release or threatened release of petroleum products,
asbestos, urea formaldehyde insulation, polychlorinated biphenyls or any
substance listed, classified or regulated as hazardous or toxic, or any similar
term, under such Environmental Law.
"GAAP" shall mean U.S. generally accepted accounting principles.
----
"Governmental or Regulatory Authority" shall mean any instrumentality,
------------------------------------
subdivision, court, administrative agency, commission, official or other
authority of the United States or any other country or any state, province,
prefect, municipality, locality or other government or political subdivision
thereof, or any quasi-governmental or private body exercising any regulatory,
taxing, importing or other governmental or quasi-governmental authority.
"Indebtedness" of any Person shall mean and include (i) indebtedness
------------
for borrowed money or indebtedness issued or incurred in substitution or
exchange for indebtedness for borrowed money, (ii) amounts owing as deferred
purchase price for property or services, including all seller notes and
"earn-out" payments, (iii) indebtedness evidenced by any note, bond, debenture,
mortgage or other debt instrument or debt security, (iv) commitments or
obligations by which such Person assures a creditor against loss (including
contingent reimbursement obligations with respect to letters of credit), (v)
indebtedness secured by a Lien on assets or properties of such Person, (vi)
obligations or commitments to repay deposits or other amounts advanced by and
owing to third parties, (vii) obligations under any interest rate, currency or
other hedging agreement, (viii) any obligation to pay rent or other amounts
under
-2-
any lease of (or other arrangement conveying the right to use) real or personal
property, which such obligation is required to be treated as a capitalized lease
under GAAP, or (ix) guarantees or other contingent liabilities (including so
called take-or-pay or keep-well agreements) with respect to any indebtedness,
obligation, claim or liability of any other Person of a type described in
clauses (i) through (viii) above. Indebtedness shall not, however, include
accounts payable to trade creditors and accrued expenses arising in the ordinary
course of business consistent with past practice and shall not include the
endorsement of negotiable instruments for collection in the ordinary course of
business.
"Intellectual Property" shall mean any of the following: (i) patents,
---------------------
domestic and foreign, and applications and statutory registrations of any nature
and their direct off-shoots; (ii) registered and common law trade and service
marks, pending registration applications therefor, and intent-to-use
registrations or similar reservations of marks; (iii) registered and
unregistered copyrights, and applications for registration; (iv) Sites; (v)
trade secrets and proprietary information not otherwise listed in (i) through
(iv) above, including inventions, invention disclosures, moral and economic
rights of authors and inventors (however denominated), confidential information,
technical data, customer lists, corporate and business names, trade names, trade
dress, brand names, know-how, methods, designs, processes, procedures,
technology, source codes, object codes, computer software, databases or
collections and derivatives, improvements and refinements thereof, howsoever
recorded, or unrecorded; and (vi) good will associated with any of the
foregoing.
"IRS" shall mean the United States Internal Revenue Service.
---
"Key Employee" shall mean the individuals set forth on Schedule
------------
1.1(a)(i).
"Law" shall mean any statute, law, ordinance, rule or regulation of any
---
Governmental or Regulatory Authority.
"Liens" shall mean liens, security interests, options, rights of first
-----
refusal, claims, easements, mortgages, charges, indentures, deeds of trust,
rights of way, restrictions on the use of real property, encroachments, licenses
to third parties, leases to third parties, security agreements, or any other
encumbrances and other restrictions or limitations on use of real or personal
property or irregularities in title thereto.
"Material Adverse Change" or "Material Adverse Effect" shall mean, (i)
----------------------- -----------------------
when used with respect to the Company, any materially adverse change in or
effect on the business, assets, liabilities, results of operation, condition
(financial or otherwise) or prospects of the Company, taken as a whole, other
than changes or effects relating to general economic conditions, or general
conditions in the information technology infrastructure management services
industry, in each case, which do not disproportionately affect the Company, or
(ii) when used with respect to Purchaser or Seller, as the case may be, any
materially adverse change in or effect on (including any material delay) the
ability of Purchaser or Seller, as the case may be, to perform their respective
obligations hereunder.
"Order" shall mean any judgment, order, injunction, decree, writ,
-----
permit or license of any Governmental or Regulatory Authority or any arbitrator.
-3-
"Permitted Liens" shall mean (i) Liens reflected in the Balance Sheet,
---------------
(ii) Liens consisting of zoning or planning restrictions or regulations,
easements, Permits, restrictive covenants, encroachments and other restrictions
or limitations on the use of real property or irregularities in, or exceptions
to, title thereto which, individually or in the aggregate, do not materially
detract from the value of, or impair the use of, such property by the Company
and (iii) Liens for current taxes, assessments or governmental charges or levies
not yet due and payable.
"Person" shall mean and include an individual, a partnership, a joint
------
venture, a corporation, a limited liability company, a limited liability
partnership, a trust, an incorporated organization and a Governmental or
Regulatory Authority.
"Seller Entity" shall mean each of Seller, American Software USA, Inc.,
-------------
Logility, Inc. and each other Affiliate of the Seller (other than the Company)
as of the Closing Date.
"Seller Software" shall mean software applications which have been
---------------
developed by or for any Seller Entity as at the Closing Date which are licensed
by any Seller Entity in the ordinary and regular course of its business to any
third Person.
"Sites" shall mean internet domain names, applications and reservations
-----
therefor, universe resource locators and the corresponding Internet sites.
"Subsidiary" shall mean, with respect to any Person, (i) any
----------
corporation more than 50% of whose stock of any class or classes having by the
terms thereof ordinary voting power to elect a majority of the directors of such
corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of
the happening of any contingency) is owned by such Person directly or indirectly
through one or more Subsidiaries of such Person and (ii) any partnership,
association, joint venture or other entity in which such Person directly or
indirectly through one or more Subsidiaries of such Person has more than a 50%
equity interest.
"Taxes" shall mean all taxes, assessments, charges, duties, fees,
-----
levies or other governmental charges, including all federal, state, local,
foreign and other income, franchise, profits, gross receipts, capital gains,
capital stock, transfer, sales, use, value added, occupation, property, excise,
severance, windfall profits, stamp, license, payroll, social security,
withholding and other taxes, assessments, charges, duties, fees, levies or other
governmental charges of any kind whatsoever (whether payable directly or by
withholding and whether or not requiring the filing of a Return (as defined
below)), all estimated taxes, deficiency assessments, additions to tax,
penalties and interest and shall include any liability for such amounts as a
result either of being a member of a combined, consolidated, unitary or
affiliated group or of a contractual obligation to indemnify any Person or other
entity.
"Working Capital" shall mean the amount by which the Company's current
---------------
assets exceed its current liabilities, determined in accordance with GAAP, in a
manner consistent with the policies and principles used by the Company in
connection with the preparation of the Balance Sheet, except that the current
portion of any capital leases shall be excluded from
-4-
current liabilities for purposes of determining such amount. For purposes of the
foregoing sentence, the current portion of capital leases shall include any sums
accruing under such leases with respect to the twelve months following the date
on which Working Capital is determined.
"Working Capital Target Amount" shall mean Two Hundred and Fifty
-----------------------------
Thousand Dollars ($250,000).
(b) Additional Defined Terms. In addition to the terms defined in
------------------------
(S)1.1, the following terms shall have the respective meanings assigned thereto
in the sections indicated below.
Defined Term Section
------------ -------
Acquired Entity (S)5.3(b)
Actual Value (S)2.3(b)(ii)
ADSP (S)7.8
Agreed Claims (S)8.3(c)
Agreement Preamble
Allocation (S)7.8
Arbitrator (S)2.3(b)(ii)
ASI Software ss.5.7
Avery Assignment Agreement (S)6.1(d)(iii)
Avery Claim (S)5.6
Balance Sheet (S)3.7(a)
Balance Sheet Date (S)3.7(a)
Certificate (S)8.3(a)
Closing (S)2.4
Closing Date (S)2.4
COBRA (S)5.5
Common Stock (S)3.5
Company First Recital
Company Customer (S)5.3(a)(i)
Company/Sprint Agreements (S)5.3(a)(ii)(C)
Confidentiality Agreement (S)5.1(a)
Contract (S)3.3(a)
Effective Date (S)2.2(a)
Effective Date Working Capital (S)2.3(a)
Employee Benefit Plans (S)3.21(a)
ERISA (S)3.21(a)
Estimated Working Capital (S)2.2(a)
Estimated Working Capital Difference (S)2.2(a)
Exhibit A Property (S)3.17(a)
High Value (S)2.3(b)(ii)
Indemnified Party (S)8.3(a)
Indemnifying Party (S)8.3(a)
Lease Agreement (S)6.1(d)(i)
Lease Guaranty (S)6.1(d)(vii)
Losses (S)8.2(a)
-5-
Defined Term Section
------------ -------
Low Value (S)2.3(b)(ii)
Medical Plan (S)5.5
Multiemployer Plan (S)3.21(c)
Notice of Objection (S)2.3(b)(i)
Overlap Period (S)7.1(b)
Permit (S)3.25
Pre-Closing Periods (S)3.15(b)
Purchase Price (S)2.2(b)
Purchaser Preamble
Purchaser Indemnitee (S)8.2(a)
Returns (S)3.15(a)
Seller Preamble
Seller Indemnitee (S)8.2(b)
Seller/Sprint Agreements (S)8.2(b)
Service Fee Letter Agreement (S)6.1(d)(vi)
Services Agreement (S)6.1(d)(ii)
Shares First Recital
Tax Benefit (S)8.2(f)
Tax Matter (S)7.3(a)
Temporary Staffing Business (S)3.6(b)
Unaudited Balance Sheet (S)3.7(a)
Unaudited Balance Sheet Date (S)3.7(a)
VEBAs (S)3.21(a)
WARN (S)3.20(l)
Warranty Claims (S)3.29
(S)1.2 Construction. In this Agreement, unless the context otherwise
------------
requires:
(a) any reference in this Agreement to "writing" or comparable
expressions includes a reference to facsimile transmission or comparable means
of communication;
(b) words expressed in the singular number shall include the plural
and vice versa, words expressed in the masculine shall include the feminine and
neuter gender and vice versa;
(c) references to Articles, Sections, Exhibits, Schedules and
Recitals are references to articles, sections, exhibits, schedules and recitals
of this Agreement;
(d) reference to "day" or "days" are to calendar days;
(e) this "Agreement" or any other agreement or document shall be
construed as a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from time to time be,
amended, varied, novated or supplemented; and
-6-
(f) "include," "includes," and "including" are deemed to be followed by
"without limitation" whether or not they are in fact followed by such words or
words of similar import.
(S)1.3 Schedules and Exhibits. The Schedules and Exhibits to this Agreement
----------------------
are incorporated into and form an integral part of this Agreement. If an Exhibit
is a form of agreement, such agreement, when executed and delivered by the
parties thereto, shall constitute a document independent of this Agreement.
(S)1.4 Knowledge. (a) Where any representation or warranty contained in
---------
this Agreement is expressly qualified by reference to the knowledge of Seller,
it means the actual or implied knowledge of the officers and directors of
Seller, and for this purpose, "implied knowledge" means all information that
such officers and directors should have known (i) in the course of operating and
managing the business and affairs of the Company, assuming they operated and
managed such business and affairs in accordance with prudent and customary
business practices, or (ii) after having made due and diligent inquiry of all
persons responsible for the operation and management of the business and affairs
of the Company, as to the matters that are the subject of such representations
and warranties.
(b) Where any representation or warranty contained in this Agreement is
expressly qualified by reference to the knowledge of Purchaser, it means the
actual or implied knowledge of Zach Lonstein, Robert Wallach and Nicholas
Letizia, and for this purpose, "implied knowledge" means all information that
such persons should have known (i) in the course of operating and managing the
business and affairs of Purchaser, assuming they operated and managed such
business and affairs in accordance with prudent and customary business
practices, or (ii) after having made due and diligent inquiry of all persons
responsible for the operation and management of the business and affairs of
Purchaser, as to the matters that are the subject of such representations and
warranties.
ARTICLE II
SALE OF SHARES
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(S)2.1 Sale of Shares. On the terms, and subject to the conditions, set
--------------
forth in this Agreement, Seller agrees to sell, assign, transfer and deliver to
Purchaser on the Closing Date, and Purchaser agrees to purchase from Seller on
the Closing Date, the Shares. The certificates representing the Shares shall be
duly endorsed in blank, or accompanied by either stock powers duly executed in
blank by Seller or such other instruments of transfer as are reasonably
acceptable to Purchaser in each case, with all necessary transfer tax and other
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