Asset Purchase Agreement (2005)Full Document 

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THIS ASSET PURCHASE AGREEMENT, dated as of the 24th day of December 2004 (this “Agreement”), is entered into by and among MCEI, LLC, a Delaware limited liability company (the “Purchaser”), Merisel, Inc., a Delaware corporation, for purposes of Section 7.13 only (the “Acquiror Parent”), Color Edge, Inc., a New York corporation (the “Seller”) and the direct and indirect shareholders or members of the Seller set forth on the signature pages attached hereto (each a “Shareholder” and collectively, the “Shareholders”).




WHEREAS, Seller is engaged in the Business (as defined below);


WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to purchase from Seller, substantially all of the assets and properties of the Seller and in connection therewith Purchaser is willing to assume certain specified liabilities of Seller relating thereto, all upon the terms and subject to the conditions set forth herein;


WHEREAS, the Shareholders are the holders of all of the issued and outstanding equity interests of Seller and will receive direct and substantial benefits from consummation of the transactions contemplated hereby; and


WHEREAS, Purchaser would not enter into this Agreement or consummate the transactions contemplated hereby without the agreements of Shareholders contained herein.


NOW THEREFORE, in consideration of the premises and the mutual representations, warranties, agreements and covenants hereinafter set forth, and intending to be legally bound hereby, Purchaser, Seller and Shareholders hereby agree as follows:





1.1 Definitions.


As used in this Agreement and the Exhibits and Schedules delivered pursuant to this Agreement, the following definitions will apply:


Accounts Receivable” shall have the meaning given to such term in Section 4.18.


Acquired Businesses” shall have the meaning given to such term in Section 4.12.


Acquired Group” shall mean the limited liability company purchasing the assets of Color Edge Visual, Inc., a New York corporation (“CEV”), and Photobition New York, Inc., a Delaware corporation (“Photobition and, together with CEV, “Color Edge Visual”,) and the limited liability company purchasing the assets of Seller.


Action” shall mean any action, claim, complaint, petition, investigation, suit or other proceeding, whether administrative, civil or criminal, in law or in equity, or before any arbitrator or Governmental Authority.

Actual Net Working Capital” shall have the meaning given to such term in Section 2.6(d).


Adjusted EBITDA” shall mean EBITDA of the Seller and Color Edge Visual, taken together, for the period from January 1, 2004 through November 30, 2004, without giving effect to expenses of the types set forth on Exhibit A hereto with the components of EBITDA and such expenses determined in accordance with GAAP.


Affiliate” shall mean (a) an “affiliate” as defined under Rule 12b-2 of the Securities Exchange Act of 1934, as amended, (b) a Person who directly or indirectly controls, is controlled by or is under common control with the Person specified and (c) any Person owning directly or indirectly at least five percent (5%) of the outstanding equity interests of any other Person. All Related Persons shall be deemed Affiliates of one another.


Agreement” shall have the meaning given to such term in the preamble.


Alternative Transaction” shall have the meaning given to such term in Section 7.7.


Applicable Law or Laws” shall mean all applicable provisions of all (a) constitutions, treaties, statutes, Laws (including the common law), rules, regulations, ordinances, codes or orders of any Governmental Authority, (b) Consents of any Governmental Authority and (c) orders, decisions, injunctions, judgments, awards and decrees of or agreements with any Governmental Authority.

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