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Exhibit 10(j)(i)
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT ("AGREEMENT") is made as of the
22nd day
of January, 2007 by and between MALOY RISK SERVICES, INC., a New
Jersey
corporation having its principal place of business at 100
Village Blvd., Suite
200, Princeton, NJ 08540 (the "SELLER"), and COVER-ALL
TECHNOLOGIES INC., a
Delaware corporation having its principal place of business at
55 Lane Road,
Fairfield, New Jersey 07004 (the "PURCHASER").
RECITALS:
WHEREAS, Seller is engaged in the business of insurance
brokerage
services;
WHEREAS, in connection with its business, Seller has
designed,
developed and implemented in its office certain software to
address certain
front-office needs for brokers and agents in the insurance
industry (the
"SOFTWARE");
WHEREAS, Seller desires to sell and Purchaser desires to
purchase all
of Seller's right, title and interest in and to the Assets (as
defined below),
including the Software, all under the terms and conditions as
hereinafter set
forth, and Purchaser desires to develop further the Software and
integrate the
Software into the base solution set of Purchaser's My Insurance
Center (MIC)
software suite (the "BASE MIC SOFTWARE"); and
WHEREAS, in connection with the sale of the Assets by Seller
to
Purchaser, the parties hereto are entering into (a) a License
Agreement, dated
as of the date hereof, in substantially the form annexed hereto
as EXHIBIT A
(the "LICENSE AGREEMENT"), pursuant to which, among other
things, Purchaser
shall license to Seller, and Seller shall have the right to use,
the Base MIC
Software, and (b) a Commission and Services Agreement, dated as
of the date
hereof, in substantially the form annexed hereto as EXHIBIT B
(the "COMMISSION
AGREEMENT"), pursuant to which, among other things, Seller shall
be entitled to
receive certain payments in respect of the licensing of the Base
MIC Software by
Purchaser to third parties,
NOW, THEREFORE, in consideration of the premises, the mutual
promises,
covenants and representations of the parties and for other good
and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto,
intending to be bound, hereby agree as follows:
1. SALE OF ASSETS. Seller hereby agrees to sell, transfer,
assign,
convey and deliver to Purchaser, on the Closing Date (as defined
in Section 8
below), for the consideration hereinafter provided, all of
Seller's right, title
and interest in and to the assets specified on SCHEDULE 1 hereto
(hereinafter,
the "ASSETS") free and clear from any and all liens, claims,
charges or
encumbrances of any kind. If and to the extent Seller acquires,
develops or
otherwise comes into possession of rules or metadata relating to
or associated
with the Software after the Closing, Purchaser shall be entitled
to purchase
such rules or metadata relating to or associated with the
Software from
Purchaser for a price and upon such terms no less favorable than
those which
would be provided to any other party by Seller. Seller shall
notify Purchaser
promptly in the event Seller acquires, develops or otherwise
comes into
possession of rules or metadata relating to or associated with
the Software
after the Closing.
2. NON-ASSUMPTION OF LIABILITIES. Other than with respect to
those
liabilities identified on SCHEDULE 2 which Purchaser agrees to
assume (the
"ASSUMED LIABILITIES"), Seller shall be and remain solely liable
and responsible
for all debts, obligations, duties, litigation, actions and
liabilities of
Seller
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arising from or related to the Assets, which were caused or
arose prior to the
Closing, and Purchaser does not and shall not assume, agree to
pay or pay any
debts, obligations, duties, litigation, actions or liabilities
of any nature of
the Seller, regardless of whether any such debt, obligation,
duty, litigation,
action or liability arises under any contract, agreement,
practice, arrangement,
statute, law, ordinance, rule, regulation or otherwise, and
nothing in this
Agreement is intended or shall be construed to the contrary.
3. PURCHASE PRICE. The total purchase price for the Assets and
the
assumption of the Assumed Liabilities shall be one dollar
($1.00) (the "PURCHASE
PRICE").
4. RISK OF LOSS. Seller assumes all risk of destruction,
loss,
impairment or damage to the Assets through the conclusion of
Closing. In the
event of a material destruction, loss, impairment or damage to
the Assets or any
part thereof, Purchaser shall have the right, at its election,
to either (i)
complete the purchase, in which event Purchaser shall be
entitled to all
proceeds collectible by reason of such loss or damage or a
reduction in the
Purchase Price to reflect such impaired value, or (ii) terminate
this Agreement,
which shall be in lieu of any other right or remedy whatsoever.
In the latter
event, all parties shall be released from liability
hereunder.
5. COVENANTS, REPRESENTATIONS AND WARRANTIES.
(a) BY SELLER. Seller hereby covenants, represents and warrants
to
Purchaser the following as of the date of this Agreement and as
of the Closing
Date, with the knowledge that Purchaser is purchasing the Assets
in full
reliance thereon:
(i) ORGANIZATION AND AUTHORITY. That Seller is a duly
organized and validly existing corporation in good standing
under the laws of
the State of New Jersey and in each other jurisdiction in which
its business is
conducted, except in such other jurisdictions where the failure
to so qualify
would not have a Material Adverse Effect, as hereinafter
defined, and has the
full power and authority to carry on its business, to own, lease
and operate its
properties and assets, to execute and deliver this Agreement and
to consummate
the transactions contemplated by this Agreement. "MATERIAL
ADVERSE EFFECT" is
defined as a material adverse effect on the business, assets or
results of
operations of the Seller.
(ii) AUTHORIZATION. That this Agreement has been duly and
valid executed by Seller, the execution and delivery of this
Agreement have been
duly authorized by the Seller, and no further action of any
nature is required
pursuant to Seller's certificate of incorporation and bylaws or
other governing
documents in order to consummate the transactions contemplated
by this
Agreement;
(iii) BINDING OBLIGATION. That this Agreement constitutes
the
legal, valid and binding obligation of Seller, enforceable
against Seller in
accordance with its terms, except as may be limited by
bankruptcy or general
equitable principles;
(iv) TITLE. That Seller is the owner of, and has good and
marketable title to, the Assets, free and clear of and from any
liens, security
interests, mortgages, charges and encumbrances of every kind,
nature and
description; and, upon consummation of the transaction that is
the subject of
this Agreement in accordance with the terms hereof, Purchaser
will be vested
with good and marketable title to all of the Assets free and
clear of any liens,
security interests, mortgages, charges or encumbrances of any
kind, nature or
description;
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(v) NO PENDING ACTIONS. That there is no action pending,
contemplated or threatened which could result in an avoidance of
any term or
condition hereunder or create any liability on the part of
Purchaser for actions
or operations of Seller or impair the Assets in any way, and
there is no action
pending or contemplated against third parties alleging any
infringement of
Seller's intellectual property or proprietary rights in the
Assets;
(vi) NO CONFLICTS. That neither the execution and delivery
of
this Agreement nor its performance will conflict with or result
in a breach of
any of the terms, conditions or provisions of the certificate of
incorporation
or bylaws or other governing documents of Seller, or any
contract, agreement,
mortgage, trust, deed, note, bond, indenture or other instrument
or obligation
of any nature to which Seller is a party or by which Seller or
any of the Assets
is bound, or result in the creation or imposition of any lien,
mortgage, charge
or encumbrance, or give to others any interest or right in any
of the Assets in
each case, that would cause a Material Adverse Effect. The
execution, delivery
and performance of this Agreement by Seller does not require the
consent,
approval or waiver of rights by, or the authorization, order of
or filing with,
any person, entity or governmental authority;
(vii) TAXES PAID. That Seller has paid all relevant income,
social security, withholding, sales, unemployment insurance and
other taxes and
fees relating to its business and the Assets through the date
hereof; and that
Seller has properly filed all required tax returns as provided
by law;
(viii) OWNERSHIP. Without limiting the generality of the
foregoing Section 5(a)(iv), that Seller has the right to use,
without payment or
other obligation to any third party, all of the Assets; that
none of the Assets
infringes on or misappropriates any of the intellectual property
or proprietary
rights of any third party; that Seller is not a party to any
suit, action or
proceeding that involves a claim of infringement or
misappropriation of any of
the intellectual property or proprietary rights of any third
party; and that, to
Seller's knowledge, Seller has not received any notice or threat
alleging any
such claim of infringement or misappropriation;
(ix) NO OTHER AGREEMENTS. That there are no written or oral
contracts, commitments, agreements or other contractual
obligations (including
employment contracts or pension or profit sharing plans) to
which Seller is a
party and which could become the obligation of Purchaser upon
Closing;
(x) NO LIABILITIES. That Seller has no liabilities of any
kind with respect to the Assets, and, to Seller's knowledge,
there is no basis
for the assertion of any claim or liability of any nature
against Seller with
respect to the Assets; and
(xii) COMPLIANCE. That the Software shall be in compliance
with
all applicable laws, rules and regulations as of the date of the
delivery
thereof.
(b) BY PURCHASER. Purchaser hereby covenants, represents and
warrants to Seller the following, with the knowledge that Seller
is selling the
Assets in full reliance thereon:
(i) ORGANIZATION AND AUTHORITY. That Purchaser is a duly
organized and validly existing corporation in good standing
under the laws of
Delaware, is authorized to do business in each other
jurisdiction in which its
business is conducted, and has the full corporate power to carry
on its
business, to own and operate its properties and assets, to enter
into this
Agreement and to consummate the transactions contemplated by
this Agreement;
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(ii) AUTHORIZATION. That the execution and delivery of this
Agreement have been duly authorized by the Purchaser, and no
further corporate
action of any nature is required pursuant to Purchaser's
organizational
documents in order to consummate the transactions contemplated
by this
Agreement;
(iii) BINDING OBLIGATION. That this Agreement constitutes
the
legal, valid and binding obligation of Purchaser, enforceable
against Purchaser
in accordance with its terms, except as such enforceability may
be limited by
applicable equitable or bankruptcy principles; and
(iv) NO PENDING ACTIONS. There is no action pending or
contemplated which could result in an avoidance of any term or
condition
hereunder or create any liability on the part of Seller for
actions or
operations of Purchaser occurring prior to the date hereof.
6. MIGRATION AND INTEGRATION OF THE SOFTWARE. (a) Following
the
Closing, Purchaser shall migrate the Software to the version of
Oracle and
Oracle Application Server currently in use by Purchaser and
integrate the
Software into the base solution set, including security, of
Purchaser's My
Insurance Center (MIC) software suite.
(b) Seller acknowledges and agrees that continued improvements
in
and to and migration and integration of the Software is required
and that from
time to time Purchaser will require technical input and
expertise from Seller to
complete such efforts. Accordingly, upon Purchaser's reasonable
request, Seller
shall provide such technical input and expertise to Purchaser
related to the
Software.
(c) The parties hereby agree that all or any portion of the Base
MIC
Software and design documents, flow charts and all other related
development
documents used in connection with or as a result of the
migration or integration
of the Software with and into the Base MIC Software, and all
patents and
copyrights to each of the items therein, shall be the exclusive
property of
Purchaser. Neither Seller nor any of its agents, subcontractors
or consultants
shall have any ownership interest in the Base MIC Software or
such documents. To
the extent there is any doubt as to the lawful ownership of the
Base MIC
Software, or any part of it, the parties agree that the Base MIC
Software, and
the related documents, shall be considered a "work for hire"
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