Stock Purchase Agreement - CACI International Inc. and Automated Sciences Corp. Inc.
Stock Purchase Agreement
Dated as of September 1, 1995
among
CACI International Inc,
CACI, Inc.,
Conrad Hipkins
and
Automated Sciences Group, Inc.
Stock Purchase Agreement (the "Agreement"), dated as of September 1, 1995, by
and among CACI International Inc, a Delaware corporation ("CACI"), CACI,
Inc., a Delaware corporation and a wholly-owned subsidiary of CACI ("CASub"),
Conrad Hipkins ("Seller"), a resident of Washington, the District of
Columbia, and Automated Sciences Group, Inc., a Delaware corporation ("ASG"),
all of the capital stock of which is owned by Seller.
W I T N E S S E T H
WHEREAS CACI has a strong commitment to the government information technology
industry and ASG provides information technology, engineering and
environmental services to the United States Departments of Defense and
Energy;
WHEREAS Seller wishes to sell to CASub and CASub wishes to purchase from
Seller all of the outstanding capital stock of ASG;
NOW, THEREFORE, CACI, CASub, Seller and ASG hereby agree as follows:
Article 1
PURCHASE OF COMMON STOCK
1.1 Purchase and Sale. Upon and subject to the terms and conditions
hereof, and on the basis of the representations, warranties, covenants and
agreements contained herein, at the "Closing" (as defined in Section 1.8.1),
Seller shall sell, transfer, assign and deliver to CASub, and CASub shall
purchase, acquire and accept from Seller, all right, title and interest in
and to 449,565 shares of the Common Stock, par value $0.10 per share (the
"Common Stock") of ASG and 23,700 shares of the Preferred Stock, par value
$100.00 per share (the "Preferred Stock")(together, the "Shares"), free and
clear of all covenants, conditions, restrictions, voting arrangements, liens,
charges, encumbrances, options, claims and rights whatsoever.
1.2 Purchase Price. CASub shall pay to Seller a total purchase price of
Four Million Three Hundred Forty Thousand Dollars ($4,340,000) (the "Purchase
Price") for the Shares, subject to adjustment in accordance with Section 1.3.
The Purchase Price shall be payable as follows:
1.2.1 Two Million Three Hundred Thousand Dollars ($2,300,000) shall
be payable to Seller at the Closing by certified check, wire transfer or
other form of immediately available funds; and
1.2.2 Two Million Forty Thousand Dollars ($2,040,000) shall be
payable in three equal installments of Six Hundred Eighty Thousand Dollars
($680,000), payable to Seller on each of the first, second and third
anniversaries of the Closing (each, an "Installment Payment"); provided,
however, that the third Installment Payment shall be subject to adjustment in
accordance with Section 1.3.
1.3 Holdback.
1.3.1 CASub shall be entitled to withhold from the third Installment
Payment due Seller on the third anniversary of the Closing a portion of the
Purchase Price, up to a maximum of Five Hundred Thousand Dollars ($500,000)
(the "Holdback"), based on the collection of accounts receivable in the
amount of Eight Million Two Hundred Twenty-Seven Thousand Nine Hundred
Sixty-Two Dollars ($8,227,962) reflected on the March 31, 1995 audited
balance sheet of ASG (the "Receivables"). The Receivables are individually
identified by amount and account debtor on Exhibit 1.3.1. The holdback
period shall expire on the third anniversary of the Closing (the "Holdback
Period"). If, at the end of the Holdback Period, any of the Receivables have
not been collected by ASG, CASub shall reduce the amount of the third
Installment Payment by the amount of such uncollected Receivables, up to a
maximum reduction of Five Hundred Thousand Dollars ($500,000). CACI, CASub
or ASG shall pay to Seller any Receivables collected after the expiration of
the Holdback Period within thirty (30) days of receipt.
1.3.2 Exhibit 1.3.2 identifies by amount and account debtor the
accounts receivable existing as of March 31, 1995 that are not included in
the Receivables (the "Windfall Receivables"). If ASG collects any Windfall
Receivables during the Holdback Period, CASub shall reduce the amount of the
uncollected Receivables by the amount of such Windfall Receivables. If the
amount of the uncollected Receivables is reduced to zero or if the Holdback
Period has expired, CACI, CASub or ASG shall pay to Seller any Receivables or
Windfall Receivables received thereafter within thirty (30) days of receipt.
1.4 Non-Competition Agreement. In connection with the execution, delivery
and performance of this Agreement and the transactions contemplated hereby,
Seller agrees to execute and deliver at or prior to the Closing a
Non-Competition Agreement in form and substance satisfactory to CACI and
CASub, to the effect set forth in Exhibit 1.4 (the "Non-Competition
Agreement"). In consideration of the execution and delivery of the
Non-Competition Agreement, CASub shall pay to Seller the sum of Two Hundred
Thousand Dollars ($200,000) at the Closing and One Hundred Thousand Dollars
($100,000) on each of the first four (4) anniversaries of the Closing.
1.5 Escrow of Earnest Money Deposit. CACI acknowledges that, pursuant to
the escrow agreement attached as Exhibit 1.5 hereto, it has deposited the sum
of One Hundred Thousand Dollars ($100,000) (the "Earnest Money Deposit") into
money market account no. 03-97-2061 of Independence Federal Savings Bank,
7711 Georgia Avenue, N.W., Washington, the District of Columbia, on behalf of
Kilcullen, Wilson & Kilcullen (the "Escrow Agent"), to be paid to Seller in
accordance with Section 7.2.
1.6 No Setoff. Except for the Holdback provided for in Section 1.3, in the
event of any dispute arising under this Agreement or any other document
executed in connection herewith, CACI and CASub shall not setoff against or
withhold from Seller any Installment Payment or any portion thereof.
1.7 Failure to Pay. If CASub fails to pay any Installment Payment within
thirty (30) days of the date on which such Installment Payment is payable,
CASub shall:
1.7.1 pay to Seller (i) liquidated damages equal to fifty percent
(50%) of such Installment Payment (e.g., Three Hundred Forty Thousand Dollars
($340,000)) and (ii) reasonable attorney's fees incurred by Seller solely in
connection with the collection of such Installment Payment and liquidated
damages; provided, however, that CASub shall have no obligation to pay any
attorney's fees incurred by Seller in connection with any issue other than
the collection of an Installment Payment and related liquidated damages; and
1.7.2 deposit any remaining Installment Payments, together with funds
sufficient to pay any liquidated damages that may thereafter become payable
to Seller pursuant to Section 1.7.1, into an escrow account, which shall be
governed by an escrow agreement substantially in the form of Exhibit 1.7.
<PAGE>
1.8 Closing.
1.8.1 The closing of the purchase and sale of the Shares (the
"Closing") shall be held at the offices of CACI, 1100 North Glebe Road,
Arlington, VA 22201, or at such other location as the parties hereto may
mutually agree upon in writing, at 10:00 A.M., local time, on September 1,
1995 or on such other date and at such other time as the parties hereto may
mutually agree upon in writing (the "Closing Date"). All transactions
contemplated by this Agreement shall be deemed to have become effective as of
12:01 A.M. on the Closing Date.
1.8.2 At the Closing, Seller and ASG shall deliver to CACI and CASub:
1.8.2.1 one or more certificates evidencing the Shares,
registered in the name of CASub or duly endorsed in blank or with stock
powers or other appropriate instruments of transfer, duly executed by Seller,
with signatures guaranteed, sufficient to convey to CASub good title to the
Shares, free and clear of all covenants, conditions, restrictions, voting
arrangements, liens, charges, encumbrances, options, claims and rights
whatsoever, with all applicable stock transfer and other Taxes paid;
1.8.2.2 the Non-Competition Agreement, duly executed by
Seller; and
1.8.2.3 the other instruments, agreements, certificates and
documents referred to in Section 6.2.
1.8.3 At the Closing, CACI and/or CASub shall deliver:
1.8.3.1 to Seller pursuant to Section 1.2, Two Million Three
Hundred Thousand Dollars ($2,300,000) by certified check, wire transfer or
other form of immediately available funds;
1.8.3.2 to Seller pursuant to Section 1.4, Two Hundred
Thousand Dollars ($200,000) by certified check, wire transfer or other form
of immediately available funds; and
1.8.3.3 to Seller and ASG, the other instruments, agreements,
certificates and documents referred to in Section 6.3.
Article 2
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to CACI and CASub as follows:
2.1 Ownership of the Shares. Seller is the sole record and beneficial
owner of and has and will have at the Closing good and marketable title to
the Shares, free and clear of any and all covenants, conditions,
restrictions, voting arrangements, liens, charges, encumbrances, options,
claims and rights whatsoever. There are no agreements restricting the
transfer of, or affecting the rights of Seller with respect to, the Shares.
2.2 Authority for Agreement. Seller has the full right, power and capacity
to execute, deliver and perform this Agreement and the other transactions
contemplated herein, to carry out his obligations hereunder and to transfer,
convey and sell the Shares to CASub at the Closing. Upon transfer of the
Shares to CASub, CASub will acquire good and marketable title to the Shares,
free and clear of any and all covenants, conditions, restrictions, voting
arrangements, liens, charges, encumbrances, options, claims and rights
whatsoever. Assuming the due authorization, execution and delivery hereof
and thereof by each other party hereto and thereto, this Agreement and all
other agreements and obligations entered into and undertaken in connection
with the transactions contemplated herein to which Seller is a party
constitute, when executed and delivered by Seller, the valid and legally
binding obligations of Seller, enforceable against Seller in accordance with
their respective terms, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other similar laws
affecting the rights of creditors generally.
2.3 No Default or Violation. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby
by Seller do not and will not, with or without the giving of notice or the
lapse of time, or both, conflict with, or result in any violation or breach
of or constitute a default under, or require the consent of any other party
to, or result in any right to accelerate or the creation of any lien, charge
or encumbrance on the Shares or any of the assets or properties of ASG
pursuant to, or right of termination under, any provision of any note,
mortgage, indenture, lease, agreement or other instrument, permit,
concession, grant, franchise, license, judgment, order, decree, statute, law,
ordinance, rule or regulation to which Seller or ASG is a party or by which
Seller or ASG or any of his or its assets or properties may be bound or which
is applicable to Seller or ASG or any of his or its assets or properties.
Other than in connection with or in compliance with the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), and
applicable state securities laws, no authorization, consent, approval,
license, order, or permit of, or declaration of, or filing with or notice to,
any governmental body or authority or any other person or entity is necessary
for the execution, delivery and performance of this Agreement by Seller or
the consummation by Seller of the transactions contemplated hereby.
2.4 No Brokers or Finders. No broker or finder has acted for Seller in
connection with this Agreement or the transactions contemplated hereby, and
no broker or finder is entitled to any brokerage or finder's fee or other
commissions in respect of such transactions based upon agreements,
arrangements or understandings made by or on behalf of Seller.
2.5 No Pending Actions. There is no Action pending or threatened to which
Seller is a party or of which Seller is aware which questions or challenges
the validity of this Agreement or any action taken or to be taken by Seller
pursuant to this Agreement or in connection with the transactions
contemplated hereby.
2.6 No Misrepresentations. No representation or warranty by Seller in this
Agreement, nor any statement, certificate, list, exhibit or schedule
furnished or to be furnished by or on behalf of Seller pursuant to this
Agreement nor any document or certificate delivered to CACI or CASub pursuant
to this Agreement, when taken together with the foregoing, contains or shall
contain any untrue statement of material fact or omits or shall omit to state
a material fact necessary to make the statements not misleading.
Article 3
REPRESENTATIONS AND WARRANTIES OF SELLER AND ASG
Whenever any representation, warranty, covenant or agreement of Seller is
qualified or limited as to "Knowledge," the term "Knowledge" shall be limited
to the actual knowledge of (a) the Seller and (b) the executive officer or
officers of ASG whose management responsibilities include the matters or
operations referred to by such representation, warranty, covenant or
agreement. Seller and ASG jointly and severally represent and warrant to
CACI and CASub as follows:
3.1 Corporate Status of ASG. ASG is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. ASG
is duly qualified to do business as a foreign corporation and is in good
standing in all jurisdictions in which the character of the properties owned,
leased or operated by ASG or the nature of the business transacted by ASG
makes such qualification necessary, except where failure to be so qualified
would not have a material adverse effect on the business, operations, assets,
financial condition, results of operations, properties or prospects of ASG.
3.2 Subsidiary of ASG. The corporation listed on Exhibit 3.2 (the
"Subsidiary"), except as set forth in that Exhibit, is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has full corporate power to own, lease and
operate its properties and to conduct its business as currently owned,
leased, operated and conducted. The Subsidiary is duly qualified to do
business as a foreign corporation and is in good standing in all
jurisdictions in which the character of the properties owned, leased or
operated by the Subsidiary or the nature of the business transacted by the
Subsidiary makes such qualification necessary, except where failure to be so
qualified would not have a material adverse effect on the business,
operations, assets, financial condition, results of operations, properties or
prospects of the Subsidiary. ASG has made available to CACI and CASub true,
complete and correct copies of the certificate of incorporation, by-laws and
other organizational documents of the Subsidiary, as in effect on the date
hereof. All of the shares of capital stock of the Subsidiary are duly and
validly issued, fully paid and nonassessable and are held of record and
beneficially by ASG, free and clear of any and all covenants, conditions,
restrictions, voting arrangements, liens, charges, encum- brances, options,
claims and rights whatsoever. Other than 20,522 shares of Common Stock of US
Lan Systems Corporation of Virginia, ASG does not own, hold of record or
beneficially, or have the right to acquire, either directly or indirectly,
any shares of any class of securities (including debt securities) of or any
other proprietary interest in any Person other than the Subsidiaries. There
are no agreements relating to or restricting the issuance, sale or transfer
of shares of capital stock of the Subsidiary, or affecting the rights of ASG
with respect thereto. There are no preemptive rights on the part of any
Person and there are not, and as of the Closing there will not be,
outstanding any options, warrants, agreements, commitments, conversion or
other rights that obligate the Subsidiary to issue or sell any shares of its
capital stock or other security. The subsidiary has no obligation to acquire
any class of securities (including debt securities) of any Person.
3.3 Authority for Agreement. ASG has the full corporate power to own,
lease and operate its properties and to conduct its business as currently
owned, leased, operated and conducted, to execute, deliver, and perform this
Agreement, to consummate the other transactions contemplated herein and to
carry out its obligations hereunder. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by ASG's Board of Directors. No
other corporate proceedings on the part of ASG, including, without
limitation, stockholder approval, are necessary to authorize the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby.
3.4 No Default or Violation. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby
by ASG do not and will not (a) conflict with or result in a material
violation of any provision of the Certificate of Incorporation or By-Laws or
other organizational documents of ASG, or (b) with or without the giving of
notice or the lapse of time, or both, conflict with, or result in any
material violation or breach of or constitute a material default under, or
require the consent of any other party to, or result in any right to
accelerate or the creation of any material lien, charge or encumbrance on any
of the assets or properties of ASG pursuant to, or right of termination
under, any provision of any note, mortgage, indenture, lease, agreement or
other instrument, permit, concession, grant, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation to which ASG is a
party or by which ASG or any of its assets or properties may be bound or
which is applicable to ASG or any of its assets or properties. Other than in
connection with or in compliance with the provisions of the Securities Act,
the Exchange Act, the HSR Act and applicable state securities laws, no
authorization, consent, approval, license, order, or permit of, or
declaration of, or filing with or notice to, any governmental body or
authority or any other person or entity is necessary for the execution,
delivery and performance of this Agreement by ASG or the consummation by ASG
of the transactions contemplated hereby.
3.5 Corporate Documents. ASG has heretofore made available to CACI and
CASub a true, complete and correct copy of ASG's Certificate of Incorporation
and By-Laws, each as amended to date. Such Certificate of Incorporation and
By-Laws are in full force and effect. ASG is not in violation of any
provision of its Certificate of Incorporation or By-Laws, except for such
violations that would not, individually or in the aggregate, have a material
adverse effect on the business, operations, assets, financial condition,
results of operations, properties or prospects of ASG. The minute books of
ASG (including the stock records), a copy of which has heretofore been
provided to CACI and CASub, are true, complete and correct and are the only
minute books of ASG.
3.6 Books and Records. The books of account, ledgers, order books, records
and documents of ASG accurately and completely reflect all material
information relating to the business of ASG, the location and condition of
its assets, and the nature of all transactions giving rise to the obligations
or accounts receivable of ASG.
3.7 Capitalization of ASG. ASG's authorized capital stock consists of
650,000 shares of common stock, par value $0.10 per share, and 23,700 shares
of preferred stock, par value $100.00 per share, of which only the Shares are
issued and outstanding. All of the Shares are held, and as of the Closing
Date will be held, of record and beneficially by Seller. All of the Shares
are, and as of the Closing Date will be, duly and validly issued, fully paid
and nonassessable. A total of 29,835 shares of Common Stock of ASG are held
in treasury. There are no dividends which have been authorized, declared or
set aside but not paid or which are in arrears with respect to any shares of
capital stock of ASG. There are no agreements relating to or restricting the
issuance, sale or transfer of shares of capital stock of ASG, or affecting
the rights of Seller with respect thereto. There are no preemptive rights on
the part of any Person and there are not, and as of the Closing there will
not be, outstanding any options, warrants, agreements, commitments,
conversion or other rights that obligate ASG to issue or sell any shares of
its capital stock or other security.
3.8 Financial Statements. ASG has previously delivered to CACI and CASub
the audited balance sheets of ASG as of March 31, 1993, 1994 and 1995 (the
"Audited Balance Sheets") and the related statements of income, changes in
stockholders' equity, and cash flows of ASG for the fiscal years ended March
31, 1993, 1994 and 1995 (collectively, the "Audited Financial Statements").
The Audited Financial Statements have been prepared in accordance with
generally accepted accounting principles applied consistently throughout the
periods involved (except as disclosed in the footnotes thereto) and have been
certified by Rubino and McGeehin, ASG's independent auditors. The Audited
Financial Statements present fairly the financial position, results of
operations and cash flows of ASG at the dates and for the periods indicated.
Attached hereto as Exhibit 3.8 is the unaudited balance sheet of ASG as of
June 30, 1995 (the "Unaudited Balance Sheet") and the related statements of
income, changes in stockholders' equity, and cash flows of ASG for the three
month period then ended (collectively, the "Unaudited Financial Statements").
The Unaudited Financial Statements have been prepared in accordance with
generally accepted accounting principles, applied consistently with those
employed in the Audited Financial Statements, and present fairly the
financial position and results of operations of ASG as of the date and for
the period indicated, subject to the addition of notes and normal,
non-material year-end adjustments consistent with past practice. Except to
the extent set forth on the Unaudited Balance Sheet, ASG does not have any
material liabilities or obligations of any nature, whether accrued, absolute,
contingent or otherwise, whether due or to become due and whether the amount
thereof is readily ascertainable or not, other than (i) liabilities and
obligations described in the footnotes to the 1995 Audited Financial
Statements, (ii) liabilities and obligations incurred in the ordinary course
of business since the date of the Unaudited Balance Sheet, none of which
individually or in the aggregate has had or could reasonably be expected to
have a material adverse effect on the business, operations, assets, financial
condition, results of operations, properties or prospects of ASG, and (iii)
liabilities and obligations described in the Exhibits hereto.
3.9 Absence of Material Adverse Changes. Since March 31, 1995, ASG has
conducted its business only in the ordinary course and consistent with prior
practice and there has not occurred or arisen, whether or not in the ordinary
course of business, any material adverse change in the business, operations,
assets, financial condition, results of operations, properties or prospects
of ASG. Specifically, except (i) as described in Exhibit 3.9 and (ii) as
described in that certain letter dated the Closing Date from Seller to CACI
and CASub, since March 31, 1995, ASG has not:
3.9.1 issued, sold, purchased, redeemed or granted any options,
warrants, conversion or other rights to purchase or otherwise acquire any
shares of its capital stock or any other security;
3.9.2 authorized, declared, set aside or paid any dividend or made
any other distribution with respect to any share of its capital stock or
other security;
3.9.3 incurred, discharged, satisfied or paid any obligation or
liability, accrued, absolute, contingent or otherwise, whether due or to
become due, material to ASG other than current liabilities and current
portion of long-term debt shown on the 1995 Audited Balance Sheet and current
liabilities incurred since the date of the 1995 Audited Balance Sheet in the
ordinary course of business and consistent with prior practice;
3.9.4 suffered any damage or destruction in the nature of a casualty
loss or other loss that would be treated as an extraordinary item pursuant to
Opinion No. 30 of the Accounting Principles Board, whether covered by
insurance or not, that might reasonably be expected to have a material
adverse effect on the business, operations, assets, financial condition,
results of operations, properties or prospects of ASG;
3.9.5 granted any increase in the compensation payable or to become
payable by ASG to its directors, officers, managers, consultants or agents or
any increase in benefits under any bonus, insurance, pension or other benefit
plan made for or with any of such persons, other than increases that are
provided to broad categories of employees and do not discriminate in favor of
the aforementioned persons;
3.9.6 encountered any labor union organizing activity material to the
business, operations, assets, financial condition, results of operations,
properties or prospects of ASG, had any employee strike, work-stoppage,
slow-down or lockout, or any substantial threat of any imminent strike,
work-stoppage, slow-down or lock-out or had any adverse change in its
relations with its employees, agents, customers or suppliers or any
governmental or regulatory authorities, that, in any of the foregoing cases,
has had or could reasonably be expected to have, individually or in the
aggregate, a material adverse effect on the business, operations, assets,
financial condition, results of operations, properties or prospects of ASG;
3.9.7 transferred or granted any rights under, or entered into any
settlement regarding the breach or infringement of, any United States or
foreign intellectual property, or modified any existing rights with respect
thereto, other than in the ordinary course of business and consistent with
prior practice;
3.9.8 cancelled or compromised any debts or waived or permitted to
lapse any claims or rights of substantial value, or sold, leased, transferred
or otherwise disposed of any of its properties or assets (real, personal or
mixed, tangible or intangible), except in the ordinary course of business and
consistent with prior practice;
3.9.9 made any material capital expenditure or commitment for any
addition to property, plant or equipment not in the ordinary course of
business and consistent with prior practice or in any event in excess of an
aggregate of Five Thousand Dollars ($5,000);
3.9.10 made any change in any method of accounting or accounting
practice;
3.9.11 paid, loaned or advanced any amount to, or sold, transferred or
leased any properties or assets (real, personal or mixed, tangible or
intangible) to, or entered into any agreement or arrangement with, any
officer, director, "affiliate," officer of an "affiliate," director of an
"affiliate," "associate" of an officer, "associate" of a director, or
"associate" of an "affiliate" (as such terms are defined in the rules and
regulations of the Securities and Exchange Commission), who exercised senior
managerial responsibility with respect to ASG, except for normal business
advances to employees consistent with prior practice;
3.9.12 granted any options to officers, employees, directors, or any
affiliated parties;
3.9.13 agreed, whether in writing or otherwise, to take any action
described in this Section 3.9; or
3.9.14 taken, failed to take or suffered to exist any action that, if
taken, not taken, or suffered to exist after the date hereof, would
constitute a breach of any of the covenants set forth in Section 5.
3.10 Title to Assets; Condition.
3.10.1 ASG has good title to, or a valid leasehold interest in, all of
its properties and assets. Except as described on Exhibit 3.10.1, none of
its properties or assets is subject to any mortgage, pledge, lien, security
interest, lease or other encumbrance. All of ASG's properties and assets are
in working condition.
3.10.2 Exhibit 3.10.2 contains a true, correct and complete list and
description of all real property, including all facilities and structures
located thereon, owned by ASG. ASG has good record and marketable title to
all of such real property and none of such properties is subject to any
mortgage, pledge, lien, security interest, lease, charge, encumbrance,
objection or joint ownership, except (i) liens, encumbrances and leases
incurred or made in the ordinary course of business that do not materially
impair the usefulness of such properties and assets in the conduct of its
business, (ii) liens for Taxes, assessments or governmental charges or levies
if the same shall not at the time be delinquent or thereafter can be paid
without penalty, or are being contested in good faith and by appropriate
proceedings, (iii) such imperfections of title, zoning or planning
restrictions, easements and encumbrances, if any, as do not materially
detract from the value as presently used, or materially interfere with the
present or contemplated use, of such property; and (iv) as described on
Exhibit 3.10.2.
3.10.3 Exhibit 3.10.3 sets forth a true, correct and complete list as
of the date hereof of all leases, and all amendments, modifications and
supplemental agreements thereto, of real property to which ASG is a party
(the "Leases"). True, correct and complete copies of the Leases have been
delivered by ASG to CACI and CASub. The Leases grant leasehold estates free
and clear of all mortgages, liens, claims, charges, security interests,
encumbrances and other restrictions and limitations whatsoever granted by or
caused by the actions of ASG, and ASG enjoys a right of quiet possession as
against any lien or other encumbrance on the properties subject to the Leases
(collectively, the "Leased Properties"). The Leases are in full force and
effect, are binding and enforceable against each of the parties thereto in
accordance with their respective terms. No party to any Lease has sent
written notice to the other claiming that such party is in default
thereunder, which remains uncured. There has not occurred any event that
would constitute a breach of or default in the performance of any material
covenant, agreement or condition contained in any Lease, nor has there
occurred any event that with the passage of time or the giving of notice or
both would constitute such a breach or material default. ASG is not
obligated to pay any leasing or brokerage commission relating to any Lease
and will not have any enforceable obligation to pay any leasing or brokerage
commission upon the renewal of any Lease. No material construction,
alteration or other leasehold improvement work with respect to any of the
Leases remains to be paid for or to be performed by ASG.
3.10.4 ASG is not in violation in any material respect of any law,
regulation or ordinance (including, without limitation, laws, regulations or
ordinances relating to building, zoning, environmental, city planning, land
use or similar matters) relating to the Leased Properties. There are no
proceedings materially affecting the present or future use of the Leased
Properties for the purposes for which they are used or the purposes for which
they are intended to be used. All buildings, structures and fixtures used by
ASG are in good operating condition and repair, normal wear and tear
excepted, and are insured with coverages that are usual and customary for
similar properties and similar businesses.
3.11 Intellectual Property. ASG owns, or is licensed or otherwise has the
full right to use, the Intellectual Property listed on Exhibit 3.11(a).
Exhibit 3.11(a) lists all Intellectual Property owned, licensed or used by
ASG, together with the owner or licensor thereof. Exhibit 3.11(b) lists all
third party licenses related to the Intellectual Property listed on Exhibit
3.11(a). All Intellectual Property that is identified on Exhibit 3.11(a) as
owned by ASG is, together with the goodwill of the business associated with
any Intellectual Property, owned by ASG free and clear of any and all
agreements, judgments, orders, decrees, stipulations, liens, claims, tax
liens, charges, security interests, encumbrances and licenses or sublicenses
that would prevent the use of the Intellectual Property by ASG, CACI or
CASub. The business and operations of ASG do not infringe upon or violate
any intellectual property owned by any third party. ASG has not received,
within the past three (3) years, notice of any claim that ASG has infringed
or violated any intellectual property of any third party, or that any
Intellectual Property identified on Exhibit 3.11(a) is invalid or violates or
infringes upon the rights of any third party. ASG has not sent or otherwise
communicated to another person, within the past three (3) years, any notice,
charge, claim or other assertion of, nor does there exist, any present,
impending or threatened infringement or violation by any third party of any
Intellectual Property listed on Exhibit 3.11(a) or any acts of unfair
competition by any third party relating to such Intellectual Property. ASG
maintains reasonable security measures to prevent disclosure or transfer to
unauthorized persons of any trade secrets and confidential information that
are proprietary to ASG.
3.12 Inventories. ASG has no inventory material to its business,
operations, financial condition, results of operations or prospects.
3.13 Material Contracts. ASG has delivered to CACI and CASub or made
available to CACI and CASub a true, correct and complete copy of each
material contract to which ASG is a party and all amendments thereto (the
"Material Contracts"), all of which are listed on Exhibit 3.13. All Material
Contracts are in full force and effect. ASG has not received any notice of
default, nor is it in default, nor does any condition exist which with or
without notice or the lapse of time, or both, will render ASG in default,
under any of the Material Contracts. The execution, delivery and performance
of this Agreement and the consummation of the transactions contemplated
hereby do not and will not, with or without the giving of notice or the lapse
of time, or both, conflict with, or result in any violation or breach of or
constitute a default under, or require the consent of any other party to, or
result in any right to accelerate or the creation of any lien, charge or
encumbrance on any of the assets or properties of ASG pursuant to, or right
of termination under, any provision of any Material Contract. The other
parties to the Material Contracts are in compliance with all material terms
and conditions of the Material Contracts, and no party to a Material Contract
has notified ASG of its intention to terminate or materially change the
nature of its transaction or relationship with ASG under any such Material
Contract.
3.14 Agreements, Contracts and Commitments. Except as set forth in Exhibit
3.14, to the Knowledge of Seller, ASG is not a party to:
3.14.1 any agreement relating to the issuance, transfer or sale of any
shares of the capital stock or other securities of ASG;
3.14.2 any bonus, deferred compensation, pension, severance,
profit-sharing, stock option, employee stock purchase or retirement plan,
contract or arrangement or other employee benefit plan or arrangement;
3.14.3 any employment agreement that contains any severance pay
liabilities or obligations;
3.14.4 any agreement for personal services, consultant services or
employment;
3.14.5 any agreement of guarantee or indemnification of third parties
in an amount that could exceed Five Thousand Dollars ($5,000);
3.14.6 any agreement or commitment containing a covenant limiting or
purporting to limit the freedom of ASG to compete with any person in any
geographic area or to engage in any line of business;
3.14.7 any lease (other than equipment leases under which ASG is
lessor) to which ASG is a party as lessor or lessee that is material to the
business, operations, assets, financial condition, results of operations,
properties or prospects of ASG;
3.14.8 any joint venture agreement or profit-sharing agreement (other
than with employees);
3.14.9 except for trade indebtedness incurred in the ordinary course
of business, any loan or credit agreements providing for the extension of
credit to ASG or any instrument evidencing or related in any way to
indebtedness incurred in the acquisition of companies or other entities or
indebtedness for borrowed money by way of direct loan, sale of debt
securities, purchase money obligation, conditional sale, guarantee, or
otherwise, that is material to the business, operations, assets, financial
condition, results of operations, properties or prospects of ASG;
3.14.10 any license agreement, either as licensor or licensee, or
distributor, dealer, franchise, manufacturer's representative, sales agency
or other similar agreement or commitment;
3.14.11 any contract or agreement, for the future sale by ASG of
materials, products, services or supplies, that is material to the business,
operations, assets, financial condition, results of operations, properties or
prospects of ASG;
3.14.12 any contract or agreement for the future purchase by ASG of any
materials, equipment, services, or supplies, that either provides for
payments in excess of Two Thousand Five Hundred Dollars ($2,500) and cannot
be terminated by it without penalty upon less than ninety (90) days' notice
or was not made in the ordinary course of business and consistent with prior
practice;
3.14.13 any agreement that provides for the sale of goods or services
that will result in a loss as a result of costs already incurred or expected
to be incurred to complete the agreement;
3.14.14 any agreement or arrangement for the assignment, sale or other
transfer by ASG of any agreement or lease (or right to payment thereunder) by
which it leases materials, products or other property to a third party;
3.14.15 any contract or agreement that provides any discount;
3.14.16 any agreement or commitment for the acquisition, construction
or sale of fixed assets owned or to be owned by ASG;
3.14.17 any contract or agreement not described above involving the
payment or receipt by ASG of more than Five Hundred Dollars ($500)
individually or Five Thousand Dollars ($5,000) in the aggregate other than
contracts or agreements in the ordinary course of business for the purchase
of inventory, supplies or services or for the sale of current requirements
and consistent with prior practice, or for the sale or lease of finished
goods or services in the ordinary course of business and consistent with
prior practice; or
3.14.18 any contract or agreement not described above that was not made
in the ordinary course of business and consistent with prior practice and
that is material to the business, operations, assets, financial condition,
results of operations, properties or prospects of ASG.
All agreements, contracts, plans, leases, instruments, arrangements, licenses
and commitments listed in Exhibit 3.14 pursuant to this Section 3.14 are
valid and in full force and effect and neither ASG nor any other party
thereto has breached any provision of, or defaulted under the terms of, nor
are there any facts or circumstances that would reasonably indicate that ASG
will or may be in such breach or default under, any such agreement, contract,
plan, lease, instrument, arrangement, license or commitment, which breach or
default has or could reasonably be expected to have a material adverse effect
on the business, operations, assets, financial condition, results of
operations, properties or prospects of ASG. Exhibit 3.14 correctly
identifies each contract the provisions of which would be materially and
adversely affected by this Agreement and each contract under which the rights
of any party would be altered as a result of the sale, merger, consolidation
or other change of control of ASG.
3.15 Banking Facilities, Powers of Attorney, etc. Exhibit 3.15 attached
hereto sets forth a true, correct and complete list of (i) each bank, savings
and loan or similar financial institution with which ASG has an account or
safety deposit box or other arrangement, and any numbers of the accounts or
safety deposit boxes maintained by ASG thereat, (ii) the names of all persons
authorized to draw on each such account or to have access to any such safety
deposit box facility, and (iii) any outstanding powers of attorney executed
on behalf of ASG in respect of ASG or its assets, liabilities or businesses.
ASG has no general or special powers of attorney outstanding (whether as
grantor or grantee thereof), nor any obligation or liability (whether actual,
accrued, accruing, contingent or otherwise) as guarantor, surety, co-signer,
endorser, co-maker, indemnitor or otherwise in respect of the obligation of
any Person, except as endorser or maker of checks or letters of credit,
respectively, endorsed or made in the ordinary course of business and
consistent with prior practice.
3.16 Customers and Orders. During the period from March 31, 1995 through
the Closing Date, ASG has not accepted, and will not accept, orders from any
of the other contracting parties to the Material Contracts on any terms other
than pursuant to one or more of the Material Contracts.
3.17 Compliance with Applicable Law. ASG has all requisite material
licenses, permits and certificates from all foreign, federal, state and local
authorities necessary for the conduct of its business as presently conducted,
and to lease and operate the Leased Properties. ASG has conducted its
business in material compliance with all applicable laws, statutes,
ordinances, regulations, rules, judgments, decrees, orders, permits,
licenses, concessions, grants or other authorizations of any court or of any
governmental entity or authority.
3.18 Litigation. Except as described in Exhibit 3.18, there is no Action of
any kind, pending or threatened, at law or in equity, by or before any court,
arbitrator, governmental entity or authority, that involves, affects or
relates to ASG that either singly or in the aggregate may have any material
adverse effect on the business, operations, assets, financial condition,
results of operations, prospects or properties of ASG. Neither ASG nor any
of its directors, officers, employees or properties is subject to any order,
writ, injunction, decree or judgment of any court, arbitrator or governmental
entity or authority, that involves, affects or relates to ASG that either
singly or in the aggregate may have any material adverse effect on the
business, operations, assets, financial condition, results of operations,
prospects or properties of ASG.
3.19 Insurance. To the Knowledge of Seller, Exhibit 3.19 attached hereto
sets forth a true, correct and complete list of all fire, theft, casualty,
general liability, workers' compensation, business interruption,
environmental impairment, product liability, automobile and other insurance
policies maintained by ASG and all life insurance policies maintained on the
lives of any of its directors, officers or employees (collectively, the
"Insurance Policies"). All premiums due on the Insurance Policies or
renewals thereof have been paid in full. To the Knowledge of Seller, the
amounts and coverages of the Insurance Policies are those customarily carried
by companies engaged in similar businesses and owning similar properties in
the same general areas in which ASG operates and are adequate and customary
for the type and scope of ASG's assets, properties and business. To the
Knowledge of Seller, the Insurance Policies are sufficient for compliance
with all Material Contracts to which ASG is a party or by which ASG is bound
and all applicable laws and regulations of any governmental entity. ASG's
workers' compensation insurance materially complies with all applicable
statutory and regulatory requirements relating thereto. To the Knowledge of
Seller, ASG has not received any written notices of any pending termination
with respect to any of such policies. To the Knowledge of Seller, Exhibit
3.19 includes a true and complete listing of all claims made under ASG's
Insurance Policies in excess of Five Thousand Dollars ($5,000), and the
dispositions thereof, for the period from March 31, 1992 to the date hereof.
3.20 Tax Matters.
3.20.1 ASG has duly filed, within the times and in the manner
prescribed by law, all Tax Returns that it was required to file. All such
Tax Returns were correct and complete in all material respects. All Taxes
owed by ASG (whether or not shown on any Tax Return) have been paid when due.
ASG is not currently the beneficiary of any extension of time within which to
file any Tax Return. No claim or inquiry with respect to any material amount
of Taxes has ever been made by an authority in a jurisdiction where ASG did
not file Tax Returns but where it is or may be subject to any Tax by that
jurisdiction for any period ending on or before the Closing Date. There are
no liens or other security interests on any of the properties or assets of
ASG that arose in connection with any failure (or alleged failure) to pay any
Tax.
3.20.2 All Taxes of ASG attributable to Tax periods or portions
thereof ending on or prior to the Closing Date that have not yet been paid
have in the aggregate been adequately reflected as a liability on the books
of ASG in accordance with generally accepted accounting principles
consistently applied.
3.20.3 ASG has withheld and paid all Taxes required to have been
withheld and paid in connection with payments to foreign persons, sales and
use Tax obligations with respect to any and all states, and amounts paid or
owing to any employee, independent contractor, creditor, stockholder or other
person.
3.20.4 Exhibit 3.20 hereto lists all federal and state income Tax
Returns filed with respect to ASG for Tax periods ended on or after December
31, 1991, indicates those Tax Returns that have been audited, and indicates
those Tax Returns that currently are the subject of audit. Exhibit 3.20 also
sets forth all deficiencies of Tax that have been asserted for all periods up
to and including the date hereof.
3.20.5 There are no outstanding agreements or waivers extending the
statute of limitations applicable to any Tax Return of ASG for any period.
3.20.6 ASG has delivered to CACI and CASub true, correct and complete
copies of all United States federal income Tax Returns, examination reports,
and statements of deficiencies assessed against, proposed in writing to be
assessed against, or agreed to by any of the Company and its Subsidiaries for
all Tax periods ending on or after December 31, 1991.
3.20.7 ASG has not filed a consent under Section 341(f) of the
Internal Revenue Code of 1986, as amended (the "Code"), concerning
collapsible corporations. ASG has not made any payments, is not obligated to
make any payments, and is not a party to any agreement that could obligate it
to make any payments that will be an "excess parachute payment" under Code
Section 280G. ASG has not been a United States real property holding
corporation within the meaning of Code Section 897(c)(2) during the
applicable period specified in Code Section 897(c)(1)(A)(ii), nor has ASG
been a passive foreign investment company as defined in Code Sections
1291-1297. ASG has disclosed on its federal income Tax Returns all positions
taken therein that could give rise to a substantial understatement of federal
income Tax within the meaning of Code Section 6662. ASG is not a party to any
Tax allocation or sharing agreement. ASG has no liability for any Taxes of
any person (other than its own) under Treas. Reg. Section 1.1502- 6 (or any
similar provision of state, local or foreign law), as a transferee or
successor, by contract or otherwise.
3.20.8 ASG has not made any elections under the Code, including,
without limitation, elections under Code Section 1362 (relating to taxation
as an S Corporation) or elections under Code Section 338 (relating to the
treatment of certain stock purchases as asset acquisitions).
3.21 Employee Benefit Plans; Compliance with ERISA. Exhibit 3.21 contains a
true, correct and complete list of all pension, profit sharing, retirement,
deferred compensation, welfare, insurance, disability, bonus, vacation pay,
severance pay and other similar plans, programs or agreements, and every
material personnel policy, whether reduced to writing or not, relating to any
persons employed by ASG and maintained by ASG or by any other member
(hereinafter, "Affiliate") of a controlled group of corporations, group of
trades or businesses under common control or affiliated service group which
includes ASG (as defined for purposes of Section 414(b), (c) and (m) of the
Code) (collectively, the "ASG Plans"). Neither ASG nor any Affiliate has
ever been obligated to contribute to any "multi-employer plan," as defined in
Section 3(37) of ERISA. Neither ASG nor any Affiliate has incurred any
"withdrawal liability" calculated under Section 4211 of ERISA and there has
been no event or circumstance which would cause them to incur any such
liability. Except as indicated in Exhibit 3.21, neither ASG nor any
Affiliate has ever maintained an ASG Plan providing health or life insurance
benefits to former employees (other than as required by Part 6 of Subtitle B
of Title I of ERISA). Except as indicated in Exhibit 3.21, no ASG Plan which
was subject to ERISA has been terminated; no proceedings to terminate any
such ASG Plan have been instituted within the meaning of Subtitle C of Title
IV of ERISA; and no reportable event within the meaning of Section 4043 of
said Subtitle C has occurred with respect to any such ASG Plan, and no
liability to the Pension Benefit Guaranty Corporation has been incurred.
With respect to all the ASG Plans, ASG and every Affiliate are in material
compliance with all requirements prescribed by all statutes, regulations,
orders or rules currently in effect, and have in all material respects
performed all obligations required to be performed by them. Neither ASG nor
any Affiliate, nor any of its or their directors, officers, employees or
agents, nor any trustee or administrator of any trust created under the ASG
Plans, has engaged in or been a party to any "prohibited transaction" as
defined in Section 4975 of the Code and Section 406 of ERISA which could
subject ASG or CACI or their Subsidiaries, affiliates, directors or employees
or the ASG Plans or the trusts relating thereto or any party dealing with any
of the ASG Plans or trusts to any Tax or penalty on "prohibited transactions"
imposed by Section 4975 of the Code. Neither the ASG Plans nor the trusts
created thereunder have incurred any "accumulated funding deficiency," as
such term is defined in Section 412 of the Code and regulations issued
thereunder, whether or not waived.
Each ASG Plan intended to qualify under Section 401(a) of the Code has been
determined by the Internal Revenue Service to so qualify, and the trusts
created thereunder have been determined to be exempt from Tax under Section
501(a) of the Code; copies of all determination letters have been delivered
to CACI and CASub; and nothing has occurred since the date of such
determination letters which might cause the loss of such qualification or
exemption. With respect to each ASG Plan that is a "defined benefit plan" as
defined in Section 3(35) of ERISA, the present value of the actuarial accrued
liability, determined on a plan termination basis, does not exceed the fair
market value of the assets held under such ASG Plan, and there is no unpaid
contribution for any ASG Plan year ended prior to the Closing as required
under Section 412 of the Code. With respect to each ASG Plan which is a
qualified profit sharing or stock bonus plan, all employer contributions
accrued for plan years ending prior to the Closing under the ASG Plan terms
and applicable law have been made.
There is no Action threatened or pending or that can reasonably be expected
to be asserted with respect to any of the ASG Plans or any prior plan
maintained by ASG, and there are no outstanding written requests, other than
routine requests for information concerning such ASG Plans, by participants,
beneficiaries or any government agency.
3.22 Employment-Related Matters. To the Knowledge of Seller, ASG is in
compliance in all material respects with all applicable laws respecting
employment, consulting, employment practices, wages, hours, and terms and
conditions of employment. To the Knowledge of Seller, ASG is not a party to
any collective bargaining agreement or other contract or agreement with any
labor organization or other representative of any employees of ASG. There is
no labor strike, dispute, slowdown, work stoppage, lockout or other labor
controversy in effect or, to the Knowledge of Seller, pending or threatened
against or otherwise affecting ASG. ASG has not experienced any labor
controversy within the past three years. To the Knowledge of Seller, no
labor representation question exists or has been raised respecting any of
ASG's employees. ASG has not closed any plant or facility, or effectuated
any layoffs of employees or implemented any early retirement, separation or
window program at any time from or after March 31, 1992 nor has ASG planned
or announced any action or program for the future with respect to which ASG
has or may have any material liability. To the Knowledge of Seller, ASG is
in compliance in all material respects with its obligations pursuant to the
Worker Adjustment and Retraining Notification Act of 1988, and all other
notification and bargaining obligations arising under any collective
bargaining agreement or statute relating to employment; provided, however,
that nothing in this Section 3.22 shall be construed as any representation or
warranty relating to the Code or ERISA.
3.23 Environmental.
3.23.1 To the Knowledge of Seller, ASG is in compliance in all
material respects with all applicable Environmental Laws. ASG has not
received any communication (written or oral), whether from a governmental
authority, employee, or any other person that alleges that ASG is not in
compliance with such laws. To the Knowledge of Seller, all material Permits
and other governmental authorizations currently held by ASG pursuant to the
Environmental Laws are in full force and effect and no other material Permits
are required by ASG.
3.23.2 To the Knowledge of Seller, there is no Environmental Claim
pending or threatened against or involving ASG or against any person or
entity whose liability for any Environmental Claim ASG has or may have
retained or assumed either contractually or by operation of law.
3.23.3 To the Knowledge of Seller, there are no past or present
actions, activities, circumstances, conditions, events or incidents,
including, without limitation, the release, threatened release, emission,
discharge or disposal of any Material of Environmental Concern, that could
form the basis of any Environmental Claim against ASG or against any person
or entity whose liability for any Environmental Claim ASG may have retained
or assumed either contractually or by operation of law.
3.23.4 Without in any way limiting the generality of the foregoing, to
the Knowledge of Seller, (a) no polychlorinated biphenyls are or have been
used or stored at any of the Leased Properties, and (b) no friable asbestos
or asbestos-containing material is present at any of the Leased Properties.
3.24 Absence of Certain Payments. Neither ASG nor any director, officer,
agent, employee or other person associated with or acting on behalf of ASG
has used any funds of ASG for unlawful contributions, gifts, entertainment or
other unlawful expenses relating to political activity, or made any direct or
indirect unlawful payments to government officials or employees from
corporate funds, or established or maintained any unlawful or unrecorded
funds, or violated any provisions of the Foreign Corrupt Practices Act of
1977 or any rules or regulations promulgated thereunder, in any circumstance
that would adversely affect the operations of ASG after the Closing.
3.25 Interests of Officers. None of the officers or directors of ASG has
any interest in any property, real or personal, tangible or intangible,
including Intellectual Property used in the conduct of the business of ASG,
except for rights under existing employee benefit plans.
3.26 No Brokers or Finders. No broker or finder has acted for ASG in
connection with this Agreement or the transactions contemplated hereby, and
no broker or finder is entitled to any brokerage or finder's fee or other
commissions in respect of such transactions based upon agreements,
arrangements or understandings made by or on behalf of ASG.
3.27 No Pending Actions. There is no Action pending or threatened to which
ASG is a party or of which ASG is aware which questions or challenges the
validity of this Agreement or any action taken or to be taken by ASG pursuant
to this Agreement or in connection with the transactions contemplated hereby.
3.28 No Misrepresentations. No representation or warranty by ASG in this
Agreement, nor any statement, certificate, list, exhibit or schedule
furnished or to be furnished by or on behalf of ASG pursuant to this
Agreement nor any document or certificate delivered to CACI or CASub pursuant
to this Agreement, when taken together with the foregoing, contains or shall
contain any untrue statement of material fact or omits or shall omit to state
a material fact necessary to make the statements not misleading.
Article 4
REPRESENTATIONS AND WARRANTIES OF CACI AND CASUB
CACI and CASub represent and warrant to ASG as follows:
4.1 Corporate Status of CACI and CASub. CACI and CASub are corporations
duly organized, validly existing and in good standing under the laws of
Delaware. CACI and CASub are duly qualified to do business as foreign
corporations and are in good standing in all jurisdictions in which the
character of the properties owned, leased or operated by each or the nature
of the business transacted by each makes such qualification necessary, except
where failure to be so qualified would not have a materially adverse effect
on the business, operations, assets, financial condition, results of
operations, properties or prospects of CACI and its Subsidiaries considered
as a whole.
4.2 Authority for Agreement. CACI and CASub have the full corporate power
to execute, deliver, and perform this Agreement, to consummate the
transactions contemplated hereby and to carry out their obligations
hereunder. The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of both CACI and CASub. No
other corporate proceedings on the part of CACI or CASub including, without
limitation, stockholder approval, are necessary to authorize the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby.
4.3 No Default or Violation. The execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated hereby
do not and will not (a) conflict with or result in a violation of any
provision of the Certificate of Incorporation or By-Laws or other
organizational documents of CACI or CASub, or (b) with or without the giving
of notice or the lapse of time, or both, conflict with, or result in any
violation or breach of or constitute a default under, or require the consent
of any other party to, or result in any right to accelerate or the creation
of any lien, charge or encumbrance pursuant to, or right of termination
under, any provision of any note, mortgage, indenture, lease, agreement or
other instrument, permit, concession, grant, franchise, license, judgment,
order, decree, statute, law, ordinance, rule or regulation to which CACI or
CASub is a party or by which either of them or any of their assets or
properties may be bound or which is applicable to either of them or any of
their assets or their properties. Other than in connection with or in
compliance with the provisions of the Securities Act, the Exchange Act, the
HSR Act and applicable state securities laws, no authorization, consent,
approval, license, order, or permit of, or declaration of, or filing with or
notice to, any governmental body or authority or any other person or entity
is necessary for the execution, delivery and performance of this Agreement by
CACI and CASub or the consummation by CACI and CASub of the transactions
contemplated hereby.
4.4 Responsible Prospective Contractor. Each of CACI and CASub is a
"responsible prospective contractor," as defined in 48 C.F.R. Part 9, Section
9.101 and Section 9.104, and other applicable sections of the Federal
Acquisition Regulation.
4.5 No Brokers or Finders. Except as described on Exhibit 4.5, no broker
or finder has acted for CACI or CASub in connection with this Agreement or
the transactions contemplated hereby, and no broker or finder is entitled to
any brokerage or finder's fee or other commissions in respect of such
transactions based upon agreements, arrangements or understandings made by or
on behalf of CACI or CASub.
4.6 No Pending Actions. There is no Action pending or threatened to which
CACI or CASub is a party or of which CACI or CASub is aware which questions
or challenges the validity of this Agreement or any action taken or to be
taken by CACI or CASub pursuant to this Agreement or in connection with the
transactions contemplated hereby.
4.7 No Misrepresentations. No representation or warranty by CACI or CASub
in this Agreement, nor any statement, certificate, list, exhibit or schedule
furnished or to be furnished by or on behalf of CACI or CASub pursuant to
this Agreement nor any document or certificate delivered to Seller or ASG
pursuant to this Agreement, when taken together with the foregoing, contains
or shall contain any untrue statement of material fact or omits or shall omit
to state a material fact necessary to make the statements not misleading.
Article 5
COVENANTS
It is further agreed as follows:
5.1 Divestiture of Excluded Assets. It is understood that the assets,
agreements and contracts listed on Exhibit 5.1 (the "Excluded Assets") are
not required for the conduct of the business of ASG by CACI or CASub and are
not intended to be included in the business being acquired by CACI and CASub.
Accordingly, prior to the Closing, ASG shall have (i) sold, distributed to
Seller or otherwise disposed of the assets listed on Exhibit 5.1 and (ii)
terminated or assigned to Seller the agreements and contracts listed on
Exhibit 5.1.
5.2 Filings and Submissions. The parties hereto shall cooperate with each
other and promptly prepare and make all filings and notices required under
the Securities Act, the Exchange Act, the HSR Act, any other federal or state
securities laws and any other applicable laws and regulations relating to the
sale of the Shares or the other transactions contemplated hereby. The
parties hereto agree to cooperate and promptly respond to any inquiries or
investigations initiated by the Federal Trade Commission, the Department of
Justice or any other governmental entity or authority in connection with such
filings and notices.
5.3 Release of Information. Except as required by law, no party to this
Agreement shall announce or disclose to any non-party (other than the
directors, officers, employees, attorneys, accountants, advisors or other
representatives or agents who have a "need to know" in order to consummate
this Agreement and the transactions contemplated hereby) the terms or
provisions of the Letter of Intent or this Agreement without the prior
consent of the other parties hereto (which consent shall not be unreasonably
withheld). Each party shall consult with the other parties before issuing
any press release or other public announcement referring to this Agreement,
the Letter of Intent or the terms and conditions of the transactions
contemplated hereby or thereby.
5.4 Confidentiality. Except as required by law, each party and its
representatives will hold in strict confidence all documents and information
concerning the other party furnished in connection with the transactions
contemplated by this Agreement (except to the extent that such information
can be shown to have been (a) in the public domain through no action by the
party in violation of this Section 5.4, (b) in the party's possession at the
time of disclosure and not acquired by the party directly or indirectly from
the other party on a confidential basis or (c) disclosed by the other party
to others on an unrestricted, non-confidential basis) and will not, without
the consent of the other party, (i) release or disclose any such documents or
information to any other person or (ii) use or permit others to use such
documents or information except in connection with this Agreement and the
transactions contemplated hereby. In the event of the termination of this
Agreement, each party shall return to the other parties all documents, work
papers and other material so obtained by it, or on its behalf, and all
copies, digests, abstracts or other materials relating thereto, whether so
obtained before or after the execution hereof, and will comply with the terms
of theconfidentiality provisions set forth herein.
5.5 Review of Contracts. At least thirty (30) days prior to the
commencement of the final closeout process of any contract of ASG awarded
before April 1, 1995, CACI, CASub or ASG shall give notice to Seller of the
commencement of such process. Upon reasonable notice to CACI and CASub,
Seller or Seller's representative shall have the right to review such
process.
5.6 Further Assurances.
5.6.1 Generally. Subject to terms and conditions herein provided and
to the fiduciary duties of the Board of Directors and officers of any party,
each of the parties agrees to use his or its best reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations to
perfect the transfer and delivery to CASub of all right, title and interest
in and to the Shares and to consummate and make effective this Agreement and
the other transactions contemplated hereby. In case at any time any further
action, including, without limitation, the obtaining of waivers and consents
under any agreements, material contracts or leases and the execution and
delivery of any licenses or sublicenses for any software, is necessary,
proper or advisable to carry out the purposes of this Agreement, the proper
officers and directors of each corporate party to this Agreement are hereby
directed and authorized to use their reasonable best efforts to effectuate
all required action.
5.6.2 Novation of the Material Contracts. Each party agrees to use
its best reasonable efforts to effect the novation of each Material Contract
that may require novation under its terms or under applicable laws or
regulations, and further agrees to provide all documentation necessary to
effect each such novation, including, without limitation, all instruments,
certifications, requests, legal opinions, audited financial statements, and
other documents required by Part 42 of the Federal Acquisition Regulation to
effect a novation of any contract with the Government. In particular and
without limiting the generality of the foregoing, Seller and ASG shall
continue to communicate with responsible officers of the Government and/or
any Prime Contractor from time to time as may be appropriate and permissible,
to request speedy action on any and all requests for consent to novation.
5.7 Defense of Claims and Litigation. At all times from and after the
Closing, Seller shall consult, confer and cooperate in good faith on a
reasonable basis with CACI, CASub and ASG (including, without limitation, the
making available of witnesses and cooperation in discovery proceedings) in
the conduct or defense of any Action related to the business of ASG before
the Closing Date, or any matter which, directly or indirectly, arises
therefrom, whether known at the Closing or arising thereafter, against CACI,
CASub ASG or any of their affiliates by any third party. To the extent the
indemnification provisions of this Agreement or of any other document
delivered in connection with the transactions contemplated hereby apply to
any such conduct or defense, they shall control as to the payment of costs
and expenses.
5.8 Indemnification.
5.8.1 Indemnification of CACI, CASub and ASG. Subject to the
limitations set forth in Sections 5.8.3 and 5.8.4, Seller shall indemnify and
hold harmless CACI, CASub and ASG and their respective successors by merger
or other operation of law (the "Successors"), directors, officers and assigns
from and against all losses, liabilities, claims, damages, costs or expenses
(including, without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and disbursements) suffered, incurred or paid:
5.8.1.1 that would not have been suffered, incurred or paid if
all the representations, warranties, covenants and agreements of Seller and
ASG in this Agreement or in any other instrument or document delivered to
CACI or CASub pursuant to this Agreement had been (with respect to
representations and warranties) true and had been (with respect to covenants
and agreements) fully performed and fulfilled;
5.8.1.2 as a result of any Action arising out of or relating
to the conduct of the business of ASG or Seller before the Closing; and
5.8.1.3 as a result of any Action arising out of or relating
to the failure of Seller to pay, promptly and when due, any Tax, fee or other
charge which shall become due or shall have accrued on account of the sale of
the Shares, or any other Tax, fee or charge Seller is obligated to pay
hereunder on account of the sale of the Shares or the other transactions
contemplated hereby.
Notwithstanding anything herein to the contrary, if Seller shall be required
to indemnify CACI, CASub, ASG or any of their Subsidiaries or respective
directors, officers, Successors or permitted assigns with respect to the same
item of damage and amount, the satisfaction of such indemnity to one of them
shall discharge Seller's obligations to the others to the extent of the
amount paid.
5.8.2 Indemnification of Seller. Subject to the limitations set
forth in Sections 5.8.3 and 5.8.4, CACI, CASub and ASG shall indemnify and
hold harmless Seller and his heirs, Successors and assigns from and against
all losses, liabilities, claims, damages, costs or expenses (including,
without limitation, reasonable expenses of investigation and reasonable
attorney's fees and disbursements) suffered, incurred or paid:
5.8.2.1 that would not have been suffered, incurred or paid if
all the representations, warranties, covenants and agreements of CACI and
CASub in this Agreement or in any other instrument or document delivered to
Seller pursuant to this Agreement had been (with respect to representations
and warranties) true and had been (with respect to covenants and agreements)
fully performed and fulfilled; and
5.8.2.2 as a result of any Action arising out of or relating
to the conduct of the business of ASG after the Closing.
Notwithstanding anything herein to the contrary, if CACI, CASub or ASG shall
be required to indemnify Seller or any of his heirs, Successors or assigns
with respect to the same item of damage and amount, the satisfaction of such
indemnity to one of them shall discharge the obligations of CACI, CASub and
ASG to the others to the extent of the amount paid.
5.8.3 Third Party Claims. The obligations and liabilities of a party
for which indemnification is sought (an "Indemnifying Party") by a person or
entity seeking indemnification (an "Indemnified Party") under this Section
5.8 with respect to claims resulting from the assertion of liability by third
parties shall be subject to the following conditions:
5.8.3.1 The Indemnified Party shall give written notice to the
Indemnifying Party of the nature of the assertion of liability by a third
party and the amount thereof promptly after the Indemnified Party learns of
such assertion. The foregoing notwithstanding, failure of an Indemnified
Party to comply with its obligations under this Section 5.8.3.1 shall affect
its right to indemnity only to the extent such failure shall have a material
adverse effect on the Indemnifying Party's ability to defend.
5.8.3.2 If any Action is brought by a third party against an
Indemnified Party, the Action shall be defended by the Indemnifying Party and
such defense shall include all appeals or reviews which counsel for the
Indemnifying Party shall deem appropriate. Until the Indemnifying Party
shall have assumed the defense of any such Action, or if the Indemnified
Party shall have reasonably concluded that there are likely to be defenses
available to the Indemnified Party that are different from or in addition to
those available to the Indemnifying Party (in which case the Indemnifying
Party shall not be entitled to assume the defense of such Action), all legal
or other expenses reasonably incurred by the Indemnified Party shall be borne
by the Indemnifying Party.
5.8.3.3 In any Action initiated by a third party and defended
by the Indemnifying Party, subject to the confidentiality provisions of this
Agreement, (a) the Indemnified Party shall have the right to be represented
by advisory counsel and accountants, at its own expense, (b) the Indemnifying
Party shall keep the Indemnified Party fully informed as to the status of
such Action at all stages thereof, whether or not the Indemnified Party is
represented by its own counsel, (c) the Indemnified Party shall make
available to the Indemnifying Party, and its attorneys and accountants, all
books and records of the Indemnified Party relating to such Action and (d)
the parties shall render to each other such assistance as may be reasonably
required for the proper and adequate defense of such Action.
5.8.3.4 In any Action initiated by a third party and defended
by the Indemnifying Party, the Indemnifying Party shall not make any
settlement of any claim without the written consent of the Indemnified Party,
which consent shall not be unreasonably withheld or delayed. Without
limiting the generality of the foregoing, it shall not be deemed unreasonable
to withhold consent to a settlement involving injunctive or other equitable
relief against the Indemnified Party or its assets, employees or business.
5.8.4 Minimum Liability. Seller shall not be liable under Section
5.8.1, and CACI, CASub and ASG shall not be liable under Section 5.8.2,
unless and until the aggregate amount of liability under such Section shall
exceed $25,000, in which case the Indemnifying Party shall make
indemnification thereunder for the aggregate amount of such liability,
including, without limitation, such $25,000.
5.8.5 Limitation of Seller's Liability. The Seller's obligation to
indemnify pursuant to Section 5.8.1 (i) shall not in any event exceed in the
aggregate an amount equal to the Purchase Price and (ii) shall be the
exclusive remedy for any breach of this Agreement by the Seller.
5.9 Indemnification of ASG Directors and Officers. Until at least the
third anniversary of the Closing, consistent with the standard practices of
the CACI Group of Companies, all expenses (including, without limitation,
reasonable expenses of investigation and reasonable attorney's fees and
disbursements) incurred by individuals who are directors or officers of ASG
at the time of the Closing in defending any civil, criminal, administrative
or investigative action, suit or proceeding initiated by reason of the fact
that such individuals were directors or officers of ASG shall be advanced by
ASG or its successor or assign in advance of the final disposition of such
action, suit or proceeding, and any such director or officer indemnified
shall repay any and all expenses so advanced if it is ultimately determined
that such director and/or officer was not entitled to be indemnified by ASG
or its successor or assign under the ASG By-laws in effect at the time of the
Closing.
Article 6
CONDITIONS PRECEDENT
6.1 Conditions to Obligations of Each Party. The obligations of CACI
CASub, Seller and ASG to effect the sale of the Shares and to consummate the
other transactions contemplated hereby shall be subject to the fulfillment at
or prior to the Closing of the following conditions and CACI, CASub, Seller
and ASG shall exert their best efforts to cause each such condition to be so
fulfilled:
6.1.1 No injunction or restraining or other order issued by a court
of competent jurisdiction that prohibits or materially restricts the
consummation of the sale of the Shares or any other material transaction
contemplated by this Agreement shall be in effect (each party agreeing to use
its best efforts to have any such injunction or other order lifted), and no
Action shall have been commenced or threatened seeking any injunction or
restraining or other
order that seeks to prohibit, restrain, invalidate or set aside consummation
of the sale of the Shares or any other material transaction contemplated
hereby.
6.1.2 There shall not have been any action taken, and no statute,
rule or regulation shall have been enacted, by any state or federal
government agency since the date of this Agreement that would prohibit or
materially restrict the sale of the Shares or any other material transaction
contemplated hereby.
6.1.3 All filings with and notifications to, and all approvals and
authorizations of, third parties (including, without limitation, governmental
entities and authorities) required for the consummation of the sale of the
Shares and the other material transactions contemplated hereby shall have
been made or obtained and all such approvals and authorizations obtained
shall be effective and shall not have been suspended, revoked or stayed by
action of any governmental entity or authority.
6.1.4 Any waiting period (and any extension thereof) applicable to
the sale of the Shares under the HSR Act shall have expired or been
terminated.
6.2 Conditions to Obligations of CACI and CASub to Purchase the Shares. The
obligation of CACI and CASub to purchase the Shares and to consummate the
other transactions contemplated hereby shall be subject to the fulfillment at
or prior to the Closing of the following additional conditions and Seller and
ASG shall exert their best efforts to cause each such condition to be so
fulfilled:
6.2.1 Since the date of the Letter of Intent there shall not have
been any material adverse change of any nature in the business, operations,
assets, financial condition, results of operations, properties or prospects
of ASG; and ASG shall have delivered to CACI and CASub a certificate to that
effect, dated the Closing Date and signed by the President of ASG.
6.2.2 Seller and ASG shall have received, each in form and substance
satisfactory to CACI and CASub, all covenants, approvals, authorizations,
licenses, orders, waivers, Permits and other consents under any contract,
Material Contract, plan, lease, instrument, arrangement, license, commitment
or other agreement of Seller and ASG that are required (i) to consummate the
sale of the Shares, (ii) to permit CACI and CASub to continue to conduct
their businesses and the business of ASG as they are currently conducted or
(iii) in connection with the transactions contemplated hereby; and all
filings, registrations, covenants, approvals, orders, consents and
authorizations by or with, and notifications to, all governmental authorities
or regulators, domestic or foreign, or other Persons by Seller or ASG
required to consummate the transactions contemplated by this Agreement shall
have been made or received, and shall be in full force and effect.
6.2.3 CACI and CASub shall have obtained all covenants, consents,
approvals, authorizations, licenses, orders, waivers and other Permits and
all transfers of Permits which CACI, CASub and their counsel reasonably deem
necessary (i) to consummate the sale of the Shares, (ii) to permit CACI and
CASub to continue to conduct their businesses and the business of ASG as they
are currently conducted and (iii) in connection with the transactions
contemplated hereby.
6.2.4 The execution of this Agreement and performance of the
transactions contemplated hereby by appropriate officers of ASG shall have
been authorized by the Board of Directors of ASG in accordance with
applicable corporate law.
6.2.5 No information obtained by CACI or CASub concerning ASG during
CACI's and CASub's "due diligence" investigation of ASG shall have, in the
sole judgment of CACI and CASub, adversely affected the value of this
Agreement or the transactions contemplated hereby.
6.2.6 Seller shall have executed and delivered the Non-Competition
Agreement.
6.2.7 ASG shall have (i) sold, distributed to Seller or otherwise
disposed of the assets listed on Exhibit 5.1 and (ii) terminated or assigned
to Seller the agreements and contracts listed on Exhibit 5.1.
6.2.8 Seller shall have performed in all material respects all of his
covenants set forth herein that are required to be performed at or prior to
the Closing; the representations and warranties of Seller and ASG contained
in this Agreement shall be true and correct in all material respects as of
the date hereof and as of the Closing Date as if made at the Closing, except
for representations and warranties made expressly as of a specified date
(which representations and warranties shall be true and correct in all
material respects as of such date); and Seller shall have delivered to CACI
and CASub a certificate to that effect, dated the Closing Date and signed by
Seller.
6.2.9 ASG shall have performed in all material respects all of its
covenants set forth herein that are required to be performed at or prior to
the Closing; the representations and warranties of ASG contained in this
Agreement shall be true and correct in all material respects as of the date
hereof and as of the Closing Date as if made at the Closing, except for
representations and warranties made expressly as of a specified date (which
representations and warranties shall be true and correct in all material
respects as of such date); and ASG shall have delivered to CACI and CASub a
certificate to that effect, dated the Closing Date and signed by Arthur
Holmes, as Chief Operating Officer of ASG.
6.2.10 CACI and CASub shall have received from ASG and from such other
essential parties such affidavits and certificates as CACI and CASub shall
deem necessary to relieve CACI and CASub of any obligation to deduct and
withhold any portion of the Purchase Price pursuant to Code Section 1445.
6.2.11 CACI and CASub shall have received an opinion or opinions of
counsel to Seller and ASG in form and substance satisfactory to counsel to
CACI and CASub, dated the Closing Date, to the effect set forth in Exhibit
6.2.13.
6.2.12 CACI and CASub shall have received from ASG all other documents
consistent with the purposes of this Agreement, in form and substance
satisfactory to CACI and CASub and their counsel, as CACI and CASub shall
have reasonably requested (other than additional opinions of counsel).
6.3 Conditions to Obligations of Seller to Sell the Shares. The obligation
of Seller to sell the Shares and to consummate the other transactions
contemplated hereby shall be subject to the fulfillment at or prior to the
Closing of the following additional conditions and CACI and CASub shall exert
their best efforts to cause each such condition to be so fulfilled:
6.3.1 CACI and CASub shall have performed in all material respects
all of their covenants set forth herein that are required to be performed at
or prior to the Closing; the representations and warranties of CACI and CASub
contained in this Agreement shall be true and correct in all material
respects as of the date hereof and as of the Closing Date as if made at the
Closing, except for representations and warranties made expressly as of a
specified date (which representations and warranties shall be true and
correct in all material respects as of such date); and CACI and CASub shall
have delivered to Seller a certificate to that effect, dated the Closing Date
and signed by the President or a Vice President of each of CACI and CASub.
6.3.2 Seller shall have received an opinion of counsel to CACI and
CASub in form and substance satisfactory to counsel to Seller, dated the
Closing Date, to the effect set forth in Exhibit 6.3.2.
6.3.3 Seller shall have received an acknowledgement from Broker that
any and all obligations of CACI and CASub to Broker arising as a result of
the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby have been fully satisfied.
6.3.4 Seller shall have received from CACI and CASub all such other
documents consistent with the purposes of this Agreement, in form and
substance satisfactory to Seller and his counsel, as Seller shall have
reasonably requested (other than additional opinions of counsel).
<PAGE>
Article 7
TERMINATION
7.1 Methods of Termination. This Agreement may be terminated, by written
notice promptly given to the other parties hereto, at any time prior to the
Closing:
7.1.1 By mutual written consent of the parties hereto.
7.1.2 By either CACI and CASub or Seller by notice to the other, if:
7.1.2.1 any injunction or restraining or other order issued by
a court of competent jurisdiction that prohibits or materially restricts the
consummation of the sale of the Shares or any other material transaction
contemplated by this Agreement shall be in effect, or any Action shall have
been commenced or threatened seeking any injunction or restraining or other
order that seeks to prohibit, restrain, invalidate or set aside consummation
of the sale of the Shares or any other material transaction contemplated by
this Agreement;
7.1.2.2 any action shall have been taken, or any statute, rule
or regulation shall have been enacted, by any state or federal government
agency since the date of this Agreement that would prohibit or materially
restrict the sale of the Shares or any other material transaction
contemplated by this Agreement; or
7.1.2.3 any filings with or notifications to, or any approvals
or authorizations of, third parties (including, without limitation,
governmental entities and authorities) required for the consummation of the
sale of the Shares shall not have been made or obtained or any such approvals
or authorizations obtained shall not be effective or shall have been
suspended, revoked or stayed by action of any governmental entity or
authority.
7.1.3 By CACI and CASub by notice to Seller and ASG:
7.1.3.1 if the Closing shall not have occurred on or before
October 21, 1995, unless the absence of the occurrence shall be solely due to
the failure of CACI or CASub (or their Subsidiaries or affiliates) to perform
in all material respects each of their respective material obligations under
this Agreement required to be performed by it at or prior to the Closing;
7.1.3.2 in the event of a material breach by Seller or ASG of
any representation, warranty, covenant or agreement contained herein which
has not been cured or is not curable by the earlier of the Closing or the
tenth day after written notice of that breach was given to Seller and ASG; or
7.1.3.3 if the Board of Directors of ASG shall have withdrawn
or modified in any material respect its approval of this Agreement or the
transactions contemplated hereby.
7.1.4 By Seller and ASG by notice to CACI and CASub:
7.1.4.1 if the Closing shall not have occurred on or before
October 21, 1995, unless the absence of the occurrence shall be solely due to
the failure of Seller or ASG (or the affiliates of either) to perform in all
material respects each of their respective material obligations under this
Agreement required to be performed by it at or prior to the Closing;
7.1.4.2 in the event of a material breach by CACI or CASub of
any representation, warranty, covenant or agreement contained herein which
has not been cured or is not curable by the earlier of the Closing or the
tenth day after written notice of that breach was given to CACI and CASub; or
7.1.4.3 if the Board of Directors of either CACI or CASub
shall have withdrawn or modified in any material respect its approval of this
Agreement or the transactions contemplated hereby.
Each notice of breach under Section 7.1.3.2 or 7.1.4.2 and each notice of
termination under this Section 7.1 shall set forth the facts believed to
constitute the basis therefor, all with reasonable specificity in light of
the facts then known.
7.2 Payments on Termination. If this Agreement shall be terminated
pursuant to Section 7.1.3.3, ASG shall pay to CACI the sum of One Hundred
Thousand Dollars ($100,000). If this Agreement shall be terminated pursuant
to Section 7.1.3.1 because of the nonoccurrence of any condition other than
those set forth in Sections 6.2.1, 6.2.2, 6.2.3, 6.2.4 or 6.2.5, CACI shall
cause the Escrow Agent to pay to Seller the Earnest Money Deposit.
7.3 Effect of Termination. In the event of termination under Section 7.1,
this Agreement shall forthwith become void and there shall be no liability on
the part of CACI, CASub, Seller or ASG, except that the provisions of this
Article 7, Article 8 (other than the provisions of Section 8.5) and Sections
5.3 and 5.4 shall survive the termination and continue in effect, provided
that the foregoing shall not relieve any party for liability for damages
incurred as a result of any willful breach of this Agreement or as a result
of actual fraud. No party's refusal to waive fulfillment of any condition
precedent to its obligations under this Agreement shall constitute a breach
of its duty under this Agreement.
Article 8
DEFINITIONS AND MISCELLANEOUS
8.1 Definitions of Certain Terms. As used herein, the following terms
shall have the following meanings:
Action: any suit, claim, action, litigation, arbitration, dispute,
investigation, inquiry, review, or proceeding.
Affiliate: as defined in Section 3.21 hereof.
Agreement: as defined in the Preamble hereof.
ASG: as defined in the Preamble hereof.
ASG Plans: as defined in Section 3.21 hereof.
Audited Balance Sheets: as defined in Section 3.8 hereof.
Audited Financial Statements: as defined in Section 3.8 hereof.
Broker: Mr. William P. Pickett, an individual residing in the Commonwealth
of Virginia.
CACI: as defined in the Preamble hereof.
CASub: as defined in the Preamble hereof.
Closing: as defined in Section 1.8.1 hereof.
Closing Date: as defined in Section 1.8.1 hereof.
Code: as defined in Section 3.20.7 hereof.
Earnest Money Deposit: as defined in Section 1.5 hereof.
Environmental Claim: any written notice by any governmental agency alleging
potential liability (including, without limitation, potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, fines or penalties)
arising out of, based on or resulting from (a) the presence, or release into
the environment, of any Material of Environmental Concern at any location,
whether or not owned by Seller or ASG or (b) circumstances forming the basis
of any violation, or alleged violation, of any Environmental Law.
Environmental Contamination: (a) an occurrence occurring or a condition
existing at or before the Closing if such occurrence or condition was in
violation of any Environmental Law or Permit existing at or before the
Closing and if ASG, CACI or CASub is specifically required to take remedial
action with respect thereto by a governmental agency or a negotiated
agreement, decree or clean-up plan with a governmental agency, regardless of
when such occurrence or condition is discovered or when such remedial action
is required, (b) any use, disposal or discharge of Materials of Environmental
Concern before the Closing resulting in liability to a third party,
regardless of when such use, disposal or discharge is discovered or (c) an
occurrence occurring or condition existing at or before the Closing if ASG,
CACI or CASub investigates or takes remedial action with respect thereto.
Environmental Laws: mean all Federal, state and local laws, rules and
regulations relating to pollution or protection of the environment, or
occupational or human health and safety, including, without limitation, laws,
rules and regulations relating to handling, processing, storage, recycling,
emission, discharge, disposal, treatment, transportation, release or
threatened release of any Material of Environmental Concern or other waste or
material into ambient air, surface water, ground water or land, including,
without limitation, the Comprehensive Environmental Response, Compensation,
and Liability Act (42 U.S.C. 9601 et seq.), the Hazardous Material
Transportation Act (49 U.S.C. 1801 et seq.), the Federal Water Pollution
Control Act (38 U.S.C. 1251 et seq.), the Resource Conservation and Recovery
Act (42 U.S.C. 6901 et seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), the
Toxic Substances Control Act (15 U.S.C. 2601 et seq.), the Occupational
Safety and Health Act (29 U.S.C. 651 et seq.), the Emergency Planning and
Community Right to Know Act (42 U.S.C. 11001 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 135 et seq.), and the
Food, Drug and Cosmetic Act (15 U.S.C. 2000 et seq.), in each case as these
laws have been amended or supplemented.
ERISA: the Employee Retirement Income Security Act of 1974, as amended.
Escrow Agent: as defined in Section 1.5 hereof.
Exchange Act: as defined in Section 2.3 hereof.
Excluded Assets: as defined in Section 5.1 hereof.
Government: the Federal Government of the United States of America.
Holdback: as defined in Section 1.3.1 hereof.
Holdback Period: as defined in Section 1.3.1 hereof.
HSR Act: as defined in Section 2.3 hereof.
Indemnified Party: as defined in Section 5.8.3 hereof.
Indemnifying Party: as defined in Section 5.8.3 hereof.
Installment Payment: as defined in Section 1.2.2 hereof.
Insurance Policies: as defined in Section 3.19 hereof.
Intellectual Property: patents, trademarks, service marks, trade names, mask
works, software, programs, development tools, methodologies, specifications,
processes, know-how, blueprints, drawings, designs, patterns, copyrights,
formulae, inventions, technology, trade secrets, proprietary information,
confidential information and other information and documents, and the
registrations and applications therefor and the goodwill related thereto.
Knowledge: as defined in Article 3 hereof.
Leased Properties: as defined in Section 3.10.4 hereof.
Leases: as defined in Section 3.10.3 hereof.
Letter of Intent: the letter agreement dated July 11, 1995 by and among
CACI, Seller and ASG.
Material Contracts: as defined in Section 3.13 hereof.
Materials of Environmental Concern: those substances or constituents which
are regulated by, or form the basis of liability under, any Environmental
Law.
Permit: all certificates, consents, permits, licenses, authorizations and
approvals required under or relating to any Environmental Law.
Person: any individual, corporation, partnership, firm, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental entity or any other entity.
Prime Contractor: with respect to any Material Contract, the contracting
party, other than the Government, to whom ASG may be liable for performance
as a subcontractor.
Purchase Price: as defined in Section 1.2 hereof.
Receivables: as defined in Section 1.3 hereof.
Securities Act: as defined in Section 2.3 hereof.
Seller: as defined in the Preamble hereof.
Shares: as defined in Section 1.1 hereof.
Subsidiary: any corporation, association, or other business entity a majority
(by number of votes) of the shares of capital stock (or other voting
interests) of which is owned by ASG, CACI or their respective Subsidiaries.
Successors: as defined in Section 5.8.1 hereof.
Tax: any federal, state, local or foreign income, gross receipts, license,
payroll, employment, excise, severance, stamp, occupation, premium, windfall
profits, environmental, customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, or other tax or other fiscal
charges of any kind whatsoever, including without limitation any interest,
penalty, or addition thereto, whether disputed or not.
Tax Return: any return, declaration, report, claim for refund, or
information return or statement relating to Taxes, including without
limitation any schedule or attachment thereto, and any amendment thereof.
Unaudited Balance Sheet: as defined in Section 3.8 hereof.
Unaudited Financial Statements: as defined in Section 3.8 hereof.
Windfall Receivables: as defined in Section 1.3.2 hereof.
8.2 Brokerage. Each party shall be solely responsible for payment of any
fee or charge of any broker, finder, financial advisor or intermediary
engaged, employed, or consulted by that party in connection with negotiations
or discussions incident to the execution of this Agreement or any of the
transactions contemplated hereby.
8.3 Amendments and Supplements. This Agreement may be amended or
supplemented by a written instrument signed by CACI, CASub, Seller and ASG
and approved by their respective Boards of Directors.
8.4 Extensions and Waivers. The parties hereto may (a) extend the time for
the performance of any of the obligations or other acts of the parties
hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto, and (c) waive
compliance with any of the covenants or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall
be valid only if set forth in an instrument in writing signed on behalf of
such party. No party's refusal to waive fulfillment of any condition
precedent to its obligations under this Agreement shall constitute a breach
of its duty under this Agreement. No party's failure to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or remedy
by such party preclude any other or further exercise thereof or the exercise
of any other right or remedy. The waiver by any party hereto of a breach of
any provision of this Agreement shall not operate as a waiver of any
subsequent breach.
8.5 Survival of Representations and Warranties. Notwithstanding any
investigation conducted before or after the Closing and notwithstanding any
knowledge or notice of any fact or circumstance which a party may have as the
result of such investi- gation or otherwise, each party and its Successors
and assigns shall be entitled to rely upon the representations, warranties
and covenants of the others in this Agreement. Each of the representations,
warranties and covenants contained in this Agreement, made in any document
delivered hereunder or otherwise made in connection with the Closing
hereunder shall survive the Closing until the third anniversary of the
Closing.
8.6 Expenses. Each party shall pay its own expenses, including the fees of
attorneys, accountants, investment bankers, valuation experts and others, in
connection with the transactions contemplated hereby, whether or not they are
completed, except that in the event of a conflict between this Section 8.6
and Section 5.8, the latter Section shall control. Seller shall be
responsible for, and shall indemnify and hold harmless CACI, CASub and ASG
against, payment of any and all Taxes arising out of the sale of the Shares
or the other transactions contemplated hereby.
8.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Virginia, without regard for
its principles of conflicts of laws.
8.8 Alternative Dispute Resolution. In the event that any dispute arises
under any provision of this Agreement, the parties agree to make reasonable
efforts to resolve the dispute by negotiation, mediation, or alternative
dispute resolution before any resort to legal remedies; provided, however,
that no party shall be bound by the determination of any mediation or
alternative dispute resolution proceeding without that party's prior written
consent to the proceeding.
8.9 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered by hand sent via a reputable
nationwide courier service or mailed by registered or certified mail (return
receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice) and shall be
deemed given on the date on which so hand-delivered or on the third business
dayfollowing the date on which so mailed or sent:
To CACI:
CACI International Inc
1100 North Glebe Road
Arlington, VA 22201
Attn: Dr. J. P. London, Chairman
With copies to:
Jeffrey P. Elefante, Esq.
Senior Vice President and General Counsel
CACI International Inc
1100 North Glebe Road
Arlington, VA 22201
and
David W. Walker, Esq.
Foley, Hoag & Eliot
One Post Office Square
Boston, MA 02109
To Seller:
Mr. Conrad Hipkins
1425 Leegate Road, N.W.
Washington, DC 20012
With a copy to:
Mark R. Eaton, Esq.
Michaels, Wishner & Bonner
1140 Connecticut Avenue, N.W.
Suite 900
Washington, DC 20036
To ASG:
Automated Sciences Group, Inc.
1010 Wayne Avenue
Silver Springs, MD 20910
Attention: Mr. Arthur Holmes, Jr.
With copies to Mark R. Eaton, Esq., at the address set forth above and to:
Keith J. Harrison, Esq.
King, Pagano & Harrison
1730 Pennsylvania Avenue, N.W.
Washington, DC 20006
8.10 Entire Agreement, Assignability, etc. This Agreement and the Exhibits
and documents delivered at the Closing pursuant to Section 6: (a) constitute
the entire agreement, and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof, including, without limitation, the Letter of
Intent, (b) are not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder, except as otherwise expressly
provided herein, and (c) shall not be assignable by operation of law or
otherwise. The representations and warranties of the parties shall not be
enlarged or restricted by any statement in any document referred to herein.
This Agreement shall inure to the benefit of, and be binding upon, the
parties hereto and their respective legal representatives, Successors and
permitted assigns, and shall inure to the benefit of the Indemnified Parties
and their respective legal representatives, Successors and permitted assigns.
All Exhibits mentioned in this Agreement shall be attached to this Agreement,
and shall form an integral part hereof. All capitalized terms defined in
this Agreement which are used in any Exhibit shall, unless the context
otherwise requires, have the same meaning therein as given herein. The
failure or omission by Seller and ASG, or either of them, to disclose
information required by a particular Exhibit to this Agreement shall not
constitute a breach of this Agreement if the same information is disclosed on
another Exhibit to this Agreement.
8.11 Cumulative Rights and Remedies. Each party acknowledges that money
damages alone will not adequately compensate another party for breach of a
party's obligations under this Agreement and, therefore, agrees that in the
event of the breach or threatened breach of any such obligation, in addition
to all other remedies available, at law, in equity or otherwise, each party
shall be entitled to injunctive relief compelling specific performance of, or
other compliance with, the terms of this Agreement. All rights and remedies
under this Agreement are cumulative and are in addition to and not exclusive
of any other rights and remedies provided hereunder, under any other document
delivered as part of a transaction contemplated hereby or otherwise by
agreement or law, at equity or otherwise. Without limiting the generality of
the foregoing, the parties expressly recognize that specific performance is
not any party's sole remedy hereunder.
8.12 Severability. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of the other
provisions of this Agreement, each of which shall remain in full force and
effect.
8.13 Counterparts. This Agreement may be executed in one or more
counterparts, all of which together shall constitute one and the same
Agreement.
In Witness Whereof, the parties have duly executed this Agreement as of the
date first above written.
CACI International Inc
[SEAL]
By: /s/
------------------------------
President
CACI, Inc.
[SEAL]
By: /s/
------------------------------
President
Seller:
/s/
---------------------------------
Conrad Hipkins
Automated Sciences Group, Inc.
[SEAL]
By: /s/
------------------------------
President
<PAGE>
Index of Exhibits
Exhibit 1.3.1
Exhibit 1.3.2
Exhibit 1.4
Exhibit 1.5
Exhibit 1.7
Exhibit 3.2
Exhibit 3.8
Exhibit 3.9
Exhibit 3.10.1
Exhibit 3.10.2
Exhibit 3.10.3
Exhibit 3.11(a)
Exhibit 3.11(b)
Exhibit 3.13
Exhibit 3.14
Exhibit 3.15
Exhibit 3.18
Exhibit 3.19
Exhibit 3.20
Exhibit 3.21
Exhibit 4.5
Exhibit 5.1
Exhibit 6.2.13
Exhibit 6.3.2