Asset Purchase Agreement - Private Business Inc. and Cam Commerce Solutions Inc.
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("AGREEMENT") is made as of May 28, 2002,
by and among PRIVATE BUSINESS, INC. a Tennessee corporation ("BUYER"), CAM
COMMERCE SOLUTIONS, INC., a Delaware corporation ("SELLER").
R E C I T A L S:
Seller owns and operates a business division known as Access Retail
Management, which provides merchandise planning services (the "BUSINESS").
The Business is operated as a division of Seller that is separate and
distinct from Seller's other business operations, such that assets of the
Business can be separately identified and transferred to Buyer.
Buyer desires to purchase from Seller, and Seller desires to sell and
transfer to Buyer, all the assets except cash and accounts receivables, used in
connection with the Business as described below.
Buyer desires to be appointed as a reseller of products and services
marketed and sold by other divisions of Seller, to wit the Retail STAR(TM) and
X-Charge(TM) product lines.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
ARTICLE 1.
PURCHASE AND SALE OF ASSETS; RESELLER AGREEMENT
1.1 Assets. Seller hereby agrees to sell, assign, transfer, convey and
deliver to Buyer, or to such subsidiary of Buyer as Buyer may designate, and
Buyer hereby agrees to purchase and accept from Seller, pursuant to the terms of
this Agreement, the assets of Seller used in connection with the Business as of
the date of Closing (the "ASSETS"), including but not limited to the following,
but excluding any Excluded Assets described in Section 1.3:
(a) All goodwill associated with the Business.
(b) All furniture, fixtures and equipment ("EQUIPMENT").
(c) All technical and office supplies ("SUPPLIES").
(d) To the extent assignable, all licenses, permits,
registrations and consents necessary to operate and conduct the Business.
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(e) The Assumed Leases and Contracts identified in Section 1.2.
(f) All rights to all trademarks and trade names and any
derivatives thereof (including, without limitation, "ACCESS RETAIL" and "ACCESS
RETAIL MANAGEMENT"), copyrights, logos, service marks and other intangible
property pertaining to the Business; but excluding any such marks, rights or
property which are not specifically related to the Business and which have been,
and continue to be, used by Seller in connection with Seller's other business
divisions.
(g) All intellectual property, including computer software,
which has been used in connection with the Business and which can be used by the
Buyer in the operation of the Business following the Closing.
(h) All customer lists, customer contacts, and customer
relationships that are related to the Business.
(i) All other assets, tangible and intangible, used in
connection with the Business; but excluding any such property which is not
specifically related to the Business and which has been, and continues to be,
used by Seller in connection with Seller's other business divisions.
1.2 Assumed Liabilities. Except for the leases, contracts or other
liabilities listed in Exhibit 1.2 attached hereto (the "ASSUMED LEASES AND
CONTRACTS"), Buyer shall not assume any debt, account payable, liability,
obligation, agreement, contract or lease, nor any liability under local, state
or federal laws, of Seller. Seller shall retain liability for, and shall
indemnify Buyer against, any liabilities of Seller not listed on Exhibit 1.2.
It is the intent of the parties that, except for the specific
liabilities and obligations described in Exhibit 1.2, Buyer shall not be liable
for any other liabilities or obligations of Seller, or related in any way to the
Business or the Assets whatsoever, whether fixed or contingent, known or
unknown, liquidated or unliquidated, arising now or in the future, and Seller
shall jointly and severally indemnify Buyer against any and all such
liabilities. Seller shall pay all liabilities and obligations not expressly
assumed by Buyer as of the Closing. Buyer does not assume, and no transferee
liability shall attach to Buyer with respect to, any liabilities or obligations
of Seller or related in any way to the Business or the Assets or actions of
Seller, which are not specifically assumed by Buyer pursuant to this Agreement,
including, without limitation, liabilities arising in connection with the
operation of the Business and the activities of Seller prior to the Closing. The
elimination of any risk of such transferee liability attaching to Buyer is a
primary inducement to Buyer's entering into this transaction, in that Buyer
would not have entered into this transaction under circumstances where any such
transferee liability would or might attach to Buyer. The entire negotiations of
the parties with respect to this transaction, including the purchase price, were
based upon the assumption and Agreement that Buyer would not succeed to any
liability or obligation of Seller, or related in any way to the Business or the
Assets, except for those liabilities and obligations expressly assumed in
Exhibit 1.2.
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1.3 Excluded Assets. Specifically excluded from the purchase and sale
contemplated hereunder are Seller's cash and accounts receivable arising on or
prior to the date of Closing and any other items listed on Exhibit 1.3 hereto
("EXCLUDED ASSETS"). After the Closing, Buyer will use its reasonable efforts to
collect accounts receivable that are outstanding as of the Closing. Buyer shall
remit to Seller any payments received on such accounts receivable as soon as
practical after receipt thereof.
1.4 Reseller Agreement. Contemporaneous with the Closing, and as a
condition thereof, Seller and Buyer shall execute a Dealer Agreement, whereby
Buyer will be appointed as an authorized reseller of Seller's Retail STAR(TM)
and X-Charge(TM) product lines, which Dealer Agreement, as attached in Exhibit
1.4.
ARTICLE 2.
PURCHASE PRICE
The purchase price for the Assets and the noncompetition provisions of
Article 8 hereof (the "PURCHASE PRICE") payable by Buyer to Seller shall be
Eight Hundred Thousand Dollars ($800,000) payable at Closing. The Purchase Price
shall be allocated among the Assets as set forth on Exhibit 2.
ARTICLE 3.
PRORATED ITEMS
3.1 Employees. Seller, and not Buyer, shall be responsible for payment
of any salary, wages, bonuses and benefits (including vacation and sick pay) of
Seller's employees, accrued as of Closing. Seller shall be responsible for any
severance payments or benefits due Seller's employees as a result of the
transactions contemplated hereunder, including any obligations under 29 U.S.C.
1161 et. seq. or 26 U.S.C. 4980B ("COBRA").
3.2 Assumed Leases and Contracts. All amounts due and payable and all
liabilities and obligations relating to the Assumed Leases and Contracts shall
be prorated as of Closing. All Assumed Leases and Contracts shall be brought
current as of Closing by Seller.
3.3 Taxes. All state, city and county personal property taxes, if any,
which are directly attributable to the Assets or the Business shall be prorated
between the parties as of the Closing. Buyer shall pay only the pro rata share
of such taxes arising with respect to the period after the Closing regardless of
when such taxes are assessed.
ARTICLE 4.
SELLER'S REPRESENTATIONS AND WARRANTIES
Seller hereby represents and warrants to Buyer as of Closing, as
follows:
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4.1 Organization and Authority. Seller is a corporation duly organized
and validly existing in the State of Delaware. Seller is the sole owner of the
Business and has the full power and authority to own, lease and operate the
Business and the Assets as presently owned, leased and operated, and to carry on
the Business as it is now being conducted, and has the requisite power and
authority to enter into and perform its obligations under this Agreement without
the consent, approval or authorization of, or obligation to notify, any person,
entity or governmental agency, which consent has not been obtained. Seller has
the full right, power and authority to execute, deliver and carry out the terms
of this Agreement and all documents and agreements necessary to give effect to
the provisions of this Agreement and to consummate the transactions contemplated
on the part of Seller hereby. The execution, delivery and consummation of this
Agreement and all other agreements and documents executed in connection herewith
by Seller have been duly authorized by all necessary action on the part of
Seller. No other action on the part of Seller or any other person or entity is
necessary to authorize the execution, delivery and consummation of this
Agreement and all other agreements and documents executed in connection herewith
by Seller. This Agreement and all other agreements and documents executed in
connection herewith by Seller, upon due execution and delivery thereof by all
parties, constitute valid and binding obligations of Seller enforceable in
accordance with their respective terms.
4.2 Absence of Default. The execution, delivery and consummation of this
Agreement and all other related agreements and documents by Seller do not
constitute a violation of, and will not be in conflict with, and will not, with
or without the giving of notice or the passage of time, or both, result in a
breach of or constitute a default under any agreement or document, or create (or
cause the acceleration of the maturity) of any debt, indenture, obligation or
liability affecting the Assets, or result in the creation or imposition of any
security interest, lien, charge or other encumbrance upon any of the Assets.
4.3 Leases and Contracts.
(a) Exhibit 4.3 attached hereto sets forth a complete and
accurate list of all contracts, agreements, leases and commitments, oral or
written, and all assignments, amendments and exhibits thereto, affecting or
relating to the Business (collectively, the "LEASES AND CONTRACTS"). Except for
the Assumed Leases and Contracts, all Leases and Contracts and all other
obligations and liabilities relating to the Assets and the Business shall be
retained by Seller;
(b) Except as described on Exhibit 4.3, none of the Assumed
Leases and Contracts have been modified, amended, assigned or transferred and
each is in full force and effect and is valid, binding and enforceable in
accordance with its respective terms;
(c) No event or condition has happened or presently exists which
constitutes a default or breach or, after notice or lapse of time or both, would
constitute a default or breach by any party under any of the Assumed Leases and
Contracts; and
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(d) Seller's assignment to Buyer of the Assumed Leases and
Contracts will not default, alter or terminate any such Leases and Contracts,
and such assignment will confer and convey all of Seller's rights thereunder to
Buyer.
4.4 Insurance. Seller has in effect and has continuously maintained
insurance coverage for all of its operations, personnel and assets, and for the
Assets and the Business. Seller is not in default or breach with respect to any
provision contained in any insurance policies, nor has Seller failed to give any
notice or to present any claim thereunder in due and timely fashion. Such
insurance is adequate to cover all business risks normally insured against by
owners and operators of similar businesses. Seller has continued to maintain all
such policies and coverage amounts in full force and effect up to the date of
Closing.
4.5 Tax Returns; Taxes. Except as described on Exhibit 4.5, Seller has
filed and paid all federal, state and local tax returns and tax reports required
by such authorities to be filed. Seller has paid all taxes, assessments,
governmental charges, penalties, interest and fines due or claimed to be due
(including, without limitation, taxes on properties, income, franchises,
licenses, sales and payrolls) by any federal, state or local authority. There is
no pending tax examination or audit of, nor any action, suit, investigation or
claim asserted or threatened against Seller by any federal, state or local
authority and Seller has not been granted any extension of the limitation period
applicable to any tax claims.
4.6 Absence of Certain Liabilities. As of the date hereof, except as set
forth in documents filed with the Securities and Exchange Commission and made
public prior to April 30, 2002, Seller has no contingent liabilities or
obligations which may result in any liability or obligation to Buyer.
4.7 Licenses, Permits and Accreditations. Except as described on Exhibit
4.7, Seller has all local, state and federal licenses, permits, registrations,
certificates, contracts, consents, accreditations and approvals (collectively,
"LICENSES AND PERMITS") necessary for Seller to operate and conduct the
Business. Seller is not in default under any of the Licenses and Permits. Seller
has not received any notice with respect to threatened, pending, or possible
revocation, termination, suspension or limitation of the Licenses or Permits nor
is there any ground for revocation, suspension or limitation.
4.8 Title to Assets. Seller has good and marketable title to all
property included in the Assets, free and clear of all liens, encumbrances,
charges, restrictions, conditions and any other adverse claims whatsoever. The
transfer of the Assets to Buyer is valid, and vests such Assets in Buyer free
and clear of all liens, encumbrances, charges, restrictions, conditions or any
other adverse claims whatsoever.
4.9 Condition of Assets. All Equipment utilized in the Business is in
good working order. The Assets, including, without limitation, any Assets leased
by Seller, are in good operating condition and repair, ordinary wear and tear
excepted.
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4.10 Compliance with Laws.
(a) General. Except as described on Exhibit 4.5 and Exhibit 4.7,
Seller has complied with all applicable laws, rules, and regulations and Seller
has not received notice of any alleged violations of any laws, rules or
regulations with respect to the Business. Seller has not received notice of any
violation of any order of any court or federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
(including, without limitation, legislation and regulations applicable to
environmental protection, civil rights and public and occupational health and
safety) within the last five (5) years.
(b) Litigation. There are no lawsuits, proceedings, actions or
arbitrations, pending or threatened, or any claims, or governmental
investigations, inquiries or proceedings pending or threatened, at law or in
equity against Seller or the Business, nor is there any basis for any such
action, and there is no action, suit or proceeding by any person or agency
pending or threatened which questions the legality, validity or propriety of the
transactions contemplated hereby.
(c) Employment Discrimination. No person or party (including,
but not limited to, any governmental agency) has any claim or basis for any
action or proceeding against Seller arising out of any statute, ordinance or
regulation relating to wages, collective bargaining, discrimination in
employment or employment practices or occupational safety and health standards
(including, but not limited to, the Fair Labor Standards Act, Title VII of the
Civil Rights Act of 1964, as amended, the Occupational Safety and Health Act or
the Age Discrimination in Employment Act of 1967). No such claim shall result in
any liability or obligation to Buyer, or lien or encumbrance against the Assets.
4.11 Seller's Employees and Independent Contractors. Exhibit 4.11 hereto
sets forth a complete list of all Seller's employees and independent contractors
whose full time duties are devoted to the Business. Seller has no employment
agreements with its employees. Seller agrees to indemnify and hold harmless
Buyer from and against any and all employee or independent contractor claims
arising on or prior to the date of Closing. Seller shall retain responsibility
for and fully and timely pay all salaries, wages, and bonuses and all sick
leave, holiday and vacation benefits that have accrued to Seller's employees
through the date of Closing, including related payroll taxes, and including the
bonus payable to Paul Erikson. Further, Seller shall retain responsibility for
and fully and timely pay all retirement and other fringe benefits accrued and
vested to Seller's employees through the date of Closing. Seller shall retain
responsibility for and fully and timely pay all compensation accrued to Seller's
independent contractors through the date of Closing. Further, Seller shall
retain responsibility for and fully and timely pay all other fringe benefits
accrued and vested to Seller's Independent Contractor through the date of
Closing.
4.12 Broker's Fees. Seller shall have sole responsibility for paying the
fee of any broker or finder employed by Seller and shall indemnify and hold
harmless Buyer from any such liability.
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4.13 Name; Intellectual Property. The Business operates under the name
of "Access Retail" and "Access Retail Management." The use of such names by
Seller does not, to the best of Seller's knowledge, conflict with any rights to
any similar name owned by any other person or entity, and Seller is in
compliance with applicable corporate or fictitious name statutes. Except for the
trade names listed, Seller does not own or use, in connection with the Business,
any trade names, logos, patents, patent rights,trademarks, service marks, or
copyrights(collectively, "INTELLECTUAL PROPERTY"). Seller owns or possesses all
rights to use all Intellectual Property, know-how and other proprietary rights
necessary for the conduct of the Business as currently being or proposed to be
conducted; no such rights have been disputed. Seller is under no obligation to
pay at any time any royalty or similar payment in connection with the use of the
Intellectual Property.
4.14 Financial Statements. Seller has delivered to Buyer the unaudited
financial statements of the Business for the fiscal year ended September 30,
2000 and 2001, and for the six months ended March 30, 2002 (the "FINANCIAL
STATEMENTS"). In addition, Seller shall provide to Buyer, as promptly as each
becomes available prior to the Closing, all other interim financial statements
(the "INTERIM FINANCIAL STATEMENTS") with respect to the operation of the
Business and an interim financial statement for the period ended April 30, 2002,
as well as any subsequent financials prepared prior to the Closing. The
Financial Statements and the Interim Financial Statements are attached hereto as
Exhibit 4.14. Except as set forth in Exhibit 4.14, the Financial Statements and
Interim Financial Statements are true, complete and correct in all material
respects in conformity with generally accepted accounting procedures, applied
consistently for the periods specified, and present fairly and accurately the
financial condition of the Business, and the results of its operations at the
dates and for the periods indicated.
4.15 Restrictions on Business Activities. There is no agreement,
judgment, injunction, order or decree binding upon Seller which has or could
reasonably be expected to have the effect of prohibiting or impairing any
current or future operation of the Business as currently conducted.
4.16 No Omissions, Other Information. There is no fact relevant to the
Assets, Business or prospects of Seller, which has not been set forth or
described in this Agreement or in the exhibits hereto, the nondisclosure of
which would have a material adverse effect on the Business or Assets following
Closing. None of the information included in this Agreement and exhibits or
other documents furnished or to be furnished by Seller, or any of its
representatives contains any untrue statement or is misleading in any respect or
omits to state any fact necessary in order to make any of the statements herein
or therein not misleading. Copies of all documents referred to in any exhibit
hereto have been delivered or made available to Buyer and constitute true,
correct and complete copies thereof and include all amendments, exhibits,
schedules, appendices, supplements or modifications thereto or waivers
thereunder.
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ARTICLE 5
BUYER'S REPRESENTATIONS AND WARRANTIES
Buyer represents and warrants to Seller as of Closing, as follows:
5.1 Corporate. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the state of Tennessee and has the
requisite corporate power and authority to enter into and perform its
obligations under this Agreement without the consent, approval or authorization
of, or obligation to notify, any person, entity or governmental agency which
consent has not been obtained. Buyer has the full right, power and authority to
execute, deliver and carry out the terms of this Agreement and all documents and
agreements necessary to give effect to the provisions of this Agreement and to
consummate the transactions contemplated on the part of Buyer hereby. This
Agreement and all other agreements and documents executed in connection herewith
by Buyer, upon due execution and delivery thereof, shall constitute valid and
binding obligations of Buyer, enforceable in accordance with their respective
terms.
5.2 No Breach of Statute or Contract. The execution, delivery and
performance of this Agreement by Buyer does not and shall not constitute Buyer's
breach of any statute or regulation or ordinance of any governmental authority,
and shall not at the Closing conflict with or result in Buyer's breach of or
default under any of the terms, conditions, or provisions of the Buyer's
Certificate of Incorporation or Bylaws or any order, writ, injunction, decree,
contract, agreement, or instrument to which the Buyer is a party, or by which it
is or may be bound.
ARTICLE 6
CLOSING; POST CLOSING
6.1 Closing. The Closing of the transaction contemplated hereunder shall
take place on or before May 31, 2002 (the "CLOSING") and shall be effective at
that time. Closing shall be conditioned upon the approval of the transaction by
the Boards of Directors of Buyer and Seller, the approval of the transaction by
the Fleet Bank consortium, funding of the purchase price by the Fleet Bank
consortium under its Revolving Credit Agreement with Buyer, and the
contemporaneous execution by Buyer and Seller of the Dealer Agreement attached
as Exhibit 1.4.
6.2 Seller's Deliveries. At Closing, Seller shall deliver the following
items to Buyer. Seller's failure to deliver each such item shall entitle Buyer
to terminate this Agreement.
(a) A duly executed Bill of Sale, in form satisfactory to
Buyer's counsel, conveying and assigning the Assets to Buyer, free and clear of
all liens, encumbrances, charges, adverse claims, obligations and liabilities
except as specified in Exhibit 1.2.
(b) The right to immediate possession of the Assets and the
premises and immediate benefit of the Assumed Leases and Contracts.
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(c) Duly executed Assignment and Assumption Agreement(s) in form
satisfactory to Buyer and Seller conveying and assigning the Assumed Leases and
Contracts to Buyer as of the date of Closing.
(d) Written consents, in form satisfactory to Buyer, from the
lessors or other necessary parties to the assignment of the Assumed Leases and
Contracts to Buyer as of the date of Closing, if such consents are required by
the Assumed Leases and Contracts.
(e) UCC Termination Statements, if necessary, indicating that
all liens and encumbrances encumbering the assets or related to the Assumed
Leases and Contracts have been terminated as of the date of Closing.
(f) A duly executed copy of the Dealer Agreement attached as
Exhibit 1.4.
(g) A duly executed Executive Employment Agreement and
Noncompetition between Buyer and Paul Erickson ("ERICKSON"), and a duly executed
agreement between Seller and Erickson, which relinquishes any rights Erickson
may have in the Assets, in the form attached as Exhibit 6.2(g).
(h) Such other documents as may reasonably be requested by Buyer
to effectuate the parties' agreement.
6.3 Buyer's Deliveries. At Closing, Buyer shall deliver the following
items to Seller. Buyer's failure to deliver such items shall entitle Seller to
terminate this Agreement.
(a) The Purchase Price.
(b) Duly executed Assignment and Assumption Agreement(s) in form
satisfactory to Buyer and Seller conveying and assigning the Assumed Leases and
Contracts to Buyer as of the date of Closing.
(c) A duly executed copy of the Dealer Agreement attached as
Exhibit 1.4.
(d) A duly executed employment agreement between the Buyer and
Paul Erickson, in form and substance satisfactory to Buyer and Seller.
(e) Such other documents as may reasonably be requested by
Seller to effectuate the parties' agreement.
6.4 Post-Closing Deliveries. After Closing, each party to this Agreement
shall, at the request of the other, furnish, execute and deliver such documents,
instruments, certificates, notices or other further assurances as the requesting
party shall reasonably request as necessary or desirable to effect complete
consummation of this Agreement and the transactions contemplated hereby.
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ARTICLE 7.
INDEMNIFICATION
7.1 Survival. The covenants, obligations, representations and warranties
of Buyer, Seller contained in this Agreement, or in any certificate or document
delivered pursuant to this Agreement, shall be deemed to be material and to have
been relied upon by the parties hereto notwithstanding any investigation prior
to Closing, and shall survive the date of Closing and shall not be merged into
any documents delivered in connection with Closing.
7.2 Indemnification by Seller. After Closing, and for eighteen months
thereafter, Seller shall indemnify and hold Buyer harmless against, and
reimburse the same on demand for, any damage, loss, cost or expense (including
reasonable attorney's fees incurred in defending any claim for such damage,
loss, cost or expense) incurred by Buyer resulting from: (i) any liability or
obligation of Seller not expressly assumed by Buyer pursuant to Section 1.2
hereof; (ii) any breach of the representations, warranties, covenants or
obligations of Seller in this Agreement or any document or agreement delivered
pursuant to this Agreement; (iii) any claim (whether or not disclosed herein)
that is brought or asserted by any third party(s) against Buyer arising out of
the ownership, licensing, operation or conduct of the Business or Assets or the
conduct of any of Seller's employees, agents or independent contractors,
relating to all periods of time prior to Closing.
7.3 Indemnification by Buyer. After Closing, and for eighteen months
thereafter, Buyer shall indemnify and hold Seller harmless against, and
reimburse Seller on demand for, any damage, loss, cost or expense (including
reasonable attorneys' fees incurred in defending any claim for such damage,
loss, cost or expense) incurred by Seller resulting from: (i) any breach of the
Buyer's representations, warranties, or covenants in this Agreement; (ii) any
claim which is brought or asserted by any third party(s) against Seller for
failure to pay or perform any of the Assumed Leases and Contracts; or (iii) any
claim (whether or not disclosed herein) that is brought or asserted by any third
party(s) against Seller arising out of the ownership, licensing, operation or
conduct of the Business or Assets or the conduct of any of Business's employees,
agents or independent contractors, relating to all periods of time after the
Closing.
7.4 Rules Regarding Indemnification. The obligations and liabilities of
each party which may be subject to indemnification liability hereunder (the
"INDEMNIFYING PARTY") to the other party (the "INDEMNIFIED PARTY") shall be
subject to the following terms and conditions:
Indemnity obligations hereunder shall arise only in the event
that the claims for which indemnity are sought are estimated by the indemnified
party, reasonably and in good faith, to exceed $10,000.00 (exclusive of
attorney's fees and costs), in the aggregate. The indemnified party shall give
prompt written notice to the indemnifying party of any claim by the indemnified
party, stating the nature and basis of such claim and the amount thereof, to the
extent known. The claim shall be deemed to have resulted in a determination in
favor of the indemnified party and to have resulted in a liability of the
indemnifying party in an amount equal to the amount of such claim estimated
pursuant to this paragraph if within forty-five (45) days after the indemnifying
party's receipt of the claim the indemnified party shall not have received
written
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objection to the claim. If within the aforesaid forty-five (45) day period the
indemnified party shall have received written objection to a claim (which
written objection shall briefly describe the basis of the objection to the claim
or the amount thereof, all in good faith), then for a period of sixty (60) days
after receipt of such objection the parties shall attempt to settle the disputed
claim as between the indemnified and indemnifying parties. If they are unable to
settle the disputed claim, the unresolved issue or issues shall be settled by
arbitration in accordance with the rules and procedures of the American
Arbitration Association. In the alternative, Buyer may pursue any other remedies
available to it.
7.5 Effect of Certain Future Transfers. The indemnification provisions
of Section 7.2 hereof shall not be terminated or otherwise affected by any
transfer or sale by Buyer of the Assets or Business purchased hereunder and no
consent by Seller shall be required for the same; provided, however, that in no
event shall Seller have indemnity obligations with respect to any transferee or
assignee of the Assets or Business.
ARTICLE 8.
NONCOMPETITION
8.1 Covenant Not to Compete. For a period of five (5) years after the
date of Closing, Seller agrees that, unless acting with the prior written
consent of Buyer, Seller will not, anywhere within the United States, directly
or indirectly (through any corporation, partnership, trust or otherwise), engage
in the business previously conducted by Access Retail including merchandise
planning. It being expressly acknowledged by Buyer that Seller is, and will
continue to be, engaged in other product lines involving inventory management,
and that, except as expressly provided herein, nothing herein contained shall be
construed so as to limit Seller's present or future business activities with
respect to any of Seller's presently existing product lines other than the
Business. This prohibition includes owning, managing, operating, financing,
joining, controlling or participating in the ownership, management, operation,
financing or control of any business which provides such merchandise planning,
or acting as an officer, director, employee, partner, principal, agent,
representative, consultant or otherwise of such business.
Seller acknowledges and agrees that part of the Purchase Price is
consideration for the foregoing noncompete restriction and is reasonable and
necessary to protect the legitimate interest of Buyer and that Buyer would not
have entered into this Agreement in the absence of such restriction. Any
violation of this covenant will result in irreparable injury to Buyer, and the
remedy at law for any breach of the foregoing covenant will be inadequate, and
in the event of any such breach, Buyer, in addition to any other relief
available to it, shall be entitled to temporary injunctive relief before trial
from any court of competent jurisdiction as a matter of course. Seller further
acknowledges and agrees that Buyer shall be entitled to an equitable accounting
of all earnings, profits and other benefits arising from such breach and further
agrees to pay the reasonable legal fees and expenses incurred by Buyer or any
successor or assign thereof in enforcing the restrictions contained in this
Article 8.
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Neither the sale to Buyer of customer lists, data and relationships (as
provided at Section 1.1(h)), nor this Article 8, nor any other provision hereof,
shall prevent Seller from continuing to sell, market and distribute goods and
services with respect to any of Seller's presently existing product lines from
other divisions of Seller to any person or entity who was a customer of any such
other division of Seller at or prior to the Closing.
8.2 Confidential Information. From and after the date of this Agreement,
Seller will not disclose to any person or company or use for Seller's benefit
any proprietary information of the Business or of Buyer, including customer
related information, whether or not such information would be legally
protectable as trade secrets, without Buyer's express prior written permission.
8.3 Reasonableness of Restrictions. The parties agree that the period of
restriction of restriction imposed under Sections 8.1 and 8.2 are fair and
reasonable and are reasonably required for the protection of Buyer. If the
provisions of these sections relating to the area of restriction or the period
of restriction are deemed to exceed the maximum restriction which a court having
jurisdiction over the matter would deem enforceable, the restriction shall, for
the purposes of this Article 8, be deemed to be the maximum area or period which
such court would deem valid and enforceable.
ARTICLE 9.
MISCELLANEOUS
9.1 Notices. Any notice or other communication required or permitted to
be given hereunder shall be deemed to have been properly given when received,
addressed as follows (or to such other addresses as the parties may specify by
due notice to the others):
Buyer: Private Business, Inc.
9020 Overlook, Suite 300
Brentwood, TN 37027
Attn: Thomas L. Black
with a copy to:
Harwell Howard Hyne Gabbert & Manner, P.C.
315 Deaderick Street, Suite 1800
Nashville, TN 37238
Attn: Lee C. Dilworth
Seller: Cam Commerce Solutions, Inc.
17075 New Hope Street, Suite A
Fountain Valley, California 92708
Attn: Paul Caceres
<PAGE>
with a copy to:
Timothy A. Lundell, Esq.
Lundell & Spadafore
1065 Asbury Street
San Jose, CA 95126
9.2 Taxes and Fees. All applicable sales, transfer, recording or similar
taxes and fees, if any, in connection with the transfer and sale of the Assets
shall be paid by Seller.
9.3 Headings. The headings in this Agreement are intended solely for
convenience of reference and shall be given no effect in the construction or
interpretation of this Agreement.
9.4 Governing Law. In the event that Buyer should seek to enforce any of
its rights under this Agreement against Seller, then any suit or other
proceeding shall be instituted only in a court within the state of California,
which shall have exclusive jurisdiction over the matter. Likewise, should Seller
seek to enforce any of its rights under this Agreement against Buyer, then any
suit or other proceeding shall be instituted only in a court within the state of
Tennessee, which shall have exclusive jurisdiction over the matter. The
interpretation and enforcement of this Agreement shall be governed by the law of
the state where suit is filed.
9.5 Assignment. This Agreement shall inure to the benefit of and be
binding on the successors and legal representatives of each of the parties, but
may not be assigned by either party without prior written consent.
9.6 Counterparts. This Agreement may be executed in one or more
counterparts, all of which will be considered one and the same agreement.
9.7 Exclusiveness. This Agreement embodies all of the representations,
warranties, and agreements of the parties hereto with respect to the subject
matter hereof, and all prior understandings, representations, and warranties
(whether oral or written) with respect to such matters are superseded and may
not be amended, modified, waived, discharged, or orally terminated except by an
instrument in writing signed by the party or an executive officer of a corporate
party against whom enforcement of the change, waiver, discharge, or termination
is sought.
9.8 Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted. Furthermore, in lieu of such illegal,
invalid, or unenforceable provision there shall be added automatically as a part
of this Agreement a provision as similar in terms to such illegal, invalid, or
unenforceable provision as may be possible and be legal, valid and enforceable.
9.9 Interpretation, No Presumption. No presumptions shall arise favoring
either party by virtue of the authorship of any provisions of this Agreement.
<PAGE>
9.10 Time of the Essence. Time is of the essence with respect to all
matters contemplated herein.
9.11 Exhibits. The exhibits attached hereto, together with all documents
incorporated by reference therein, form an integral part of this Agreement and
are hereby incorporated into this Agreement wherever reference is made to them
to the same extent as if they were set out in full at the point at which such
reference is made.
9.12 Expenses. The parties each shall bear their own legal, accounting
and other expenses incurred in connection with the preparation, execution and
performance of this Agreement.
9.13 Waiver. Neither the failure nor any delay on the part of any party
hereto in exercising any rights, power or remedy hereunder shall operate as a
waiver thereof, or of any other right, power or remedy; nor shall any single or
partial exercise of any right, power or remedy preclude any further or other
exercise thereof, or the exercise of any other rights, power or remedy.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
"BUYER"
PRIVATE BUSINESS, INC.
By: /s/ Thomas L. Black
-----------------------------------
Title: CEO
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"SELLER"
CAM COMMERCE SOLUTIONS, INC.
By: /s/ Paul Caceres
-----------------------------------
Title: C.F.O.
-----------------------------------