UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 


FORM 8-K
 


CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 14, 2012

SILVERSUN TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)


Delaware
 
000-50302
 
16-1633636
(State or other jurisdiction
of incorporation)
 
(Commission File Number)
 
(IRS Employer
Identifica­tion No.)

 
5 Regent Street, Suite 520
Livingston, New Jersey 07039
 
 
(Address of Principal Executive Offices)
 

(973) 758-9555
Registrant’s telephone number, including area code
  
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 
 

 
 
Item 1.01 Entry into a Material Definitive Agreement.

On June 14, 2012 (the “Closing Date” or the “Closing”) SWK Technologies, Inc., a Delaware corporation and wholly owned subsidiary of SilverSun Technologies, Inc. (“we”, “our” or the “Company”), entered into an Asset Purchase Agreement (the “Purchase Agreement”) by and among the Company, Neal L. Wolf, Esq., of Neal L. Wolf & Associates, LLC, not individually, but solely in his capacity as Trustee-Assignee of the Trust Agreement and Assignment for the Benefit of Creditors of Hightower, Inc. (the “Seller”), Hightower, Inc., an Illinois corporation (“Hightower”), and Jeffrey Rosengarden, Robert Nordin and Brian Dunn as the sole shareholders of Hightower (the “Hightower Shareholders”).

On the Closing Date, pursuant to the terms of the Purchase Agreement, the Seller, in accordance with his duties and obligations as Trustee-Assignee under the Trust Agreement dated May 1, 2012, transferred, conveyed and delivered all of the Acquired Assets of Hightower as defined in the Purchase Agreement to the Company. In consideration for the Acquired Assets, the Company paid the Seller in the aggregate the sum of $410,005.96 in cash.  In addition, the Company entered into Consulting Agreements with Jeffrey Rosengarden and Robert Nordin (the “Consulting Agreements”).

Pursuant to the Purchase Agreement, the Company has the right to offset any amount owed to the Seller or Hightower Shareholders under the Purchase Agreement or the Consulting Agreements against any amount otherwise payable to Seller or Hightower Shareholders by the Company.  However, such offset does not limit a Hightower Shareholder and/or Seller’s liability to the Company.

The above description of the Purchase Agreement and Consulting Agreements do not purport to be complete and are qualified in their entirety by reference to such documents filed as exhibits hereto.

Item 2.01 Completion of Acquisition or Disposition of Assets.

The disclosure set forth above under Item 1.01 to this Current Report on Form 8-K, Entry into a Material Definitive Agreement, is hereby incorporated by reference into this Item 2.01.

Item 9.01 Financial Statements and Exhibits.

Exhibit No.
 
Description
     
2.1
 
     
10.1
 
     
10.2
 
     
99.1
 

 
 

 

SIGNATURE
 
            Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
SILVERSUN TECHNOLOGIES, INC.
 
Date: June 20, 2012
By:
/s/ Mark Meller                                            
 
   
Mark Meller
 
   
President, Chief Executive Officer and
 
   
Principal Accounting Officer
 

 
 

 
Exhibit 2.1
ASSET PURCHASE AGREEMENT
by and among

SWK TECHNOLOGIES, INC.,
as Buyer

and

NEAL L. WOLF, ESQ.,
not individually, but solely in his capacity as Trustee-Assignee of the Trust Agreement and Assignment for the Benefit of Creditors of Hightower, Incorporated, as Seller
 
and

HIGHTOWER, INC.,

and

the STOCKHOLDERS
listed on the signature pages hereto,
 

June 14, 2012
 
 
 

 


ARTICLE 1
DEFINITIONS 
1
 
ARTICLE 2
BASIC TRANSACTION 
7
 
 
Section 2.01
Purchase and Sale of Assets 
7
 
Section 2.02
Purchase Price 
7
 
Section 2.03
Excluded Assets 
7
 
Section 2.04
Excluded Liabilities 
7
 
Section 2.05
Closing 
7
 
Section 2.06
Deliveries at the Closing 
7
 
Section 2.07
Allocation 
8
 
Section 2.08
Transfer and Maintenance of Books and Records 
8
 
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER, HIGHTOWER AND STOCKHOLDERS 
8
 
 
Section 3.01
Organization of Hightower and Stockholders 
9
 
Section 3.02
Authorization of Transaction; Enforceability 
9
 
Section 3.03
Noncontravention 
9
 
Section 3.04
Brokers’ Fees 
9
 
Section 3.05
Client Lists 
10
 
Section 3.06
Events Subsequent to Letter of Intent   
10
 
Section 3.07
Contracts 
11
 
Section 3.08
Litigation 
11
 
Section 3.09
Warranties 
12
 
Section 3.10
Title to Tangible Personal Property 
12
 
Section 3.11
Intellectual Property 
12
 
Section 3.12
Employees 
13
 
Section 3.13
Accounts Receivable 
13
 
Section 3.14
Disclosure 
14
 
Section 3.15
Assignment
14
 
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER 
14
 
 
Section 4.01
Organization of Buyer 
14
 
Section 4.02
Authorization of Transaction 
14
 
Section 4.03
Noncontravention 
15
 
Section 4.04
Brokers’ Fees 
15
 
Section 4.05
No Other Representations and Warranties 
15
 
Section 4.06
Transition 
15
 
ARTICLE 5
POST-CLOSING COVENANTS 
15
 
 
Section 5.01
General 
15
 
Section 5.02
Litigation Support 
16
 
Section 5.03
Proprietary Information 
16
 
Section 5.04
Solicitation and Hiring 
16
 
Section 5.05
Non-Competition 
16
 
Section 5.06
Apportionment 
16
 
Section 5.07
Alternate Forms of Asset Transfer 
17
 
Section 5.08
Use of Proceeds 
17
 
Section 5.09
Certain Tax Considerations 
17
 
 
 

 
 
ARTICLE 6
CONDITIONS TO OBLIGATION TO CLOSE 
17
 
 
Section 6.01
Conditions to Obligation of Buyer 
17
 
Section 6.02
Conditions to Obligation of Seller 
18
 
 
ARTICLE 7
REMEDIES FOR BREACHES OF THIS AGREEMENT 
19
 
 
Section 7.01
Survival 
19
 
Section 7.02
Indemnification 
19
 
Section 7.03
Matters Involving Third Parties 
19
 
Section 7.04
Right of Offset 
20
 
ARTICLE 8
EMPLOYEES OF THE BUSINESS 
21
 
 
Section 8.01
No Obligations to Employees 
21
 
Section 8.02
Commission Payments Owed By Seller 
21
 
ARTICLE 9
MISCELLANEOUS 
21
 
 
Section 9.01
Press Releases and Public Announcements 
21
 
Section 9.02
No Third-Party Beneficiaries 
21
 
Section 9.03
Entire Agreement 
21
 
Section 9.04
Succession and Assignment 
21
 
Section 9.05
Counterparts 
21
 
Section 9.06
Headings 
22
 
Section 9.07
Notices 
22
 
Section 9.08
Governing Law 
23
 
Section 9.09
Amendments and Waivers 
23
 
Section 9.10
Severability 
23
 
Section 9.11
Expenses 
24
 
Section 9.12
Construction 
24
 
Section 9.13
Incorporation of Exhibits and Schedules 
24
 
Section 9.14
No Breach of Fiduciary Duty Required 
24
 
Exhibits/Schedules
 
Exhibit A   Form of Consulting Agreement      
Exhibit B    Form of Consulting Agreement      
Exhibit C   Form of Bill of Sale      
Exhibit D    Form of Opinion of Counsel to Seller      
Exhibit E   Client Lists      

Disclosure Schedule                                            Schedule with respect to Representations and Warranties
 
 
ii

 
 
ASSET PURCHASE AGREEMENT
 
THIS ASSET PURCHASE AGREEMENT (this “ Agreement ”) is dated as of June 14, 2012, by and among SWK TECHNOLOGIES, INC., a Delaware corporation, located at 5 Regent Street, Suite 520, Livingston, New Jersey 07039 (“ Buyer ”); NEAL L. WOLF, ESQ., of Neal Wolf & Associates, LLC, located at 155 North Wacker Drive, Suite 1910, Chicago, Illinois 60606, not individually, but solely in his capacity as Trustee-Assignee of the Trust Agreement and Assignment for the Benefit of Creditors of Hightower, Incorporated (“ Seller ”); and HIGHTOWER INC., an Illinois corporation, located at 4709 Golf Road, Skokie, Illinois 60076 (“ Hightower ”), and the STOCKHOLDERS listed on the signature pages hereto (each individually, a “ Stockholder ” and collectively, the “ Stockholders ”), who own all of the issued and outstanding capital stock of Hightower.  Buyer, Seller, Hightower and Stockholders are sometimes each referred to separately as a “ Party ” and collectively herein as the “ Parties .”
 
W I T N E S S E T H :
 
WHEREAS, Hightower and the Stockholders were primarily engaged in the business of developing and selling enterprise resource planning and similar software applications, including proprietary Enhancements for small and middle market companies in North America;
 
WHEREAS, Hightower is indebted to various persons, lenders, corporations and other entities and is unable to pay its debts in full;
 
WHEREAS, on or about May 1, 2012, Hightower transferred, conveyed and assigned all of its property and assets to Neal L. Wolf, Esq., not individually, but solely as Trustee-Assignee under a certain Trust Agreement and Assignment for the Benefit of Creditors of Hightower, Incorporated (“Trust Agreement”);WHEREAS,  in accordance with his duties and obligations as Trustee-Assignee under the Trust Agreement, Seller has determined, with the approval and consent of Hightower’s primary lender, First Merit Bank, N.A., that the transaction contemplated by this Agreement is in the best interest of Hightower’s creditors, and has agreed to sell certain assets to Buyer, and Buyer wishes to purchase from Seller certain assets with respect to the Business on the terms and subject to the conditions set forth in this Agreement;
 
NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the Parties agree as follows.
 
ARTICLE 1
 
DEFINITIONS
 
For purposes of this Agreement, the following terms have the meanings assigned to them in this Article 1:
 
Accounts Receivable ” means (a) all trade accounts receivable and other rights to payment from customers of Hightower and the full benefit of all security for such accounts or rights to payment, including all trade accounts receivable representing amounts receivable in respect of goods shipped or products sold or services rendered to customers of Hightower, (b) all other accounts or notes receivable of Hightower and the full benefit of all security for such accounts or notes and (c) any claim, remedy or other right related to any of the foregoing.
 
 
 

 
 
Acquired Assets ” means all the following assets of the Business:
 
(a)   the Client Lists, along with all rights, benefits and privileges arising thereunder or with respect thereto which are set forth on Exhibit E attached hereto;
 
(b)   the Contracts, along with all rights, benefits and privileges arising thereunder or with respect thereto which are set forth on Section 3.07 of the Disclosure Schedule;
 
(c)   all books, records, files, correspondence and other documents relating to the Business, Client Lists, Contracts and Intellectual Property;
 
(d)   certain tangible personal property (such as equipment and furniture) which are set forth in Section 3.10 of the Disclosure Schedule;
 
(e)   the Intellectual Property of the Business including, without limitation, the Intellectual Property which is set forth in Section 3.11 of the Disclosure Schedule;
 
(f)   all goodwill of Hightower and all other assets related to or used in connection with the Business so long as they are related to an Acquired Asset;
 
(g)   all Accounts Receivable relating to the Business which are set forth in Section 3.13 of the Disclosure Schedule;
 
Adverse Consequences ” means all actions, suits, proceedings, hearings, investigations, charges, complaints, claims, demands, injunctions, judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable amounts paid in settlement, liabilities, obligations, taxes, liens, losses, expenses, and fees, including court costs and reasonable attorneys’ fees and expenses.
 
Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person.  The term “ control ” (including, with its correlative meanings, “ controlled by ” and “ under common control with ”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other equity interests, by contract or otherwise).
 
Agreement ” has the meaning set forth in the preface above.
 
Applicable Law ” means any constitutional provision, statute or ordinance, whether foreign, federal, state or local, applicable in the United States or any other nation, including any other law, rule, regulation, judgment, injunction, order, executive order, ruling, assessment, writ, decree or interpretation thereof of any Governmental Entity, or any common law.
 
 
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Business   has the meaning set forth in the first recital above.
 
Business Day ” means any day other than a day that is a Saturday, Sunday or legal holiday in New York, New York.
 
Buyer ” has the meaning set forth in the preface above.
 
 “ Client Lists ” means any and all lists, spreadsheets, worksheets and tables of any type or form identifying each and every client of Hightower since inception of the Business (including those engagements where no writing may exist) which are listed on Exhibit E attached hereto.
 
Closing ” has the meaning set forth in Section 2.05 below.
 
Closing Date   has the meaning set forth in Section 2.05 below.
 
Code ” means the Internal Revenue Code of 1986, as amended.
 
 “ Contracts ” means the following: (i) all employment agreements from September 16, 2011 to March 16, 2012; (ii) all customer software applications and/or partner proposals containing specifications of modifications to software from March 16, 2010 to March 16, 2012; (iii) all Licenses; (iv) all non-compete and non-solicitation agreements; and (v) all active leases applying to any equipment located in the offices of Hightower.
 
Disclosure Schedule   has the meaning set forth in Article 3 below.
 
Employees ” means the employees of the Business.
 
Environmental Law ” means a legal rule pertaining to land use, air, soil, surface water, groundwater (including the protection, cleanup, removal, remediation or damage thereof), public or employee health or safety or any other environmental matter, including, without limitation, the following laws as the same have been amended from time to time: (i) Clean Air Act (42 U.S.C. § 7401, et seq. ); (ii) Clean Water Act (33 U.S.C. § 1251, et seq. ); (iii) Resource Conservation and Recovery Act (42 U.S.C. § 6901, et seq. ); (iv) Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq. ); (v) Safe Drinking Water Act (42 U.S.C. § 300f, et seq. ); (vi) Toxic Substances Control Act (15 U.S.C. § 2601, et seq. ); (vii) Rivers and Harbors Act (33 U.S.C. § 401, et seq. ); (viii) Occupational Safety and Health Act (29 U.S.C. § 651, et seq. ); together with all other legal rules regulating emissions, discharges, releases or threatened releases of any hazardous substance into ambient air, land, surface water, groundwater, personal property or structures, or otherwise regulating the manufacture, processing, distribution, use, treatment, storage, disposal, transport, discharge or handling of any hazardous substance.
 
Excluded Assets ” means all other assets, properties, rights and claims (other than the Acquired Assets) of Hightower of any nature whatsoever and wherever situated.
 
Excluded Liabilities ” means all liabilities of Hightower of any nature whatsoever and wherever situated, including without limitation:
 
(a)   any liabilities or obligations that should have been paid prior to the Closing Date relating to any employee, any Plan, any employee benefits or commissions, salaries, wages or other compensation arrangements existing on or prior to the Closing Date with respect to Hightower or the Business;
 
 
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(b)   any other liability or obligation, to the extent related to an Excluded Asset;
 
(c)   any payment obligation of Hightower to vendors or other service providers for goods and/or services;
 
(d)   any Taxes of Hightower and any other Taxes accruing on or prior to the Closing Date;
 
(e)   any liabilities relating to any current pending or threatened litigation, arbitration or any other Proceeding against Hightower or any future litigation, arbitration or Proceeding relating to the Acquired Assets to the extent related to events occurring prior to the Closing Date;
 
(f)   any liabilities arising out of any violation of Environmental Law;
 
(g)   any liabilities not related to the Acquired Assets;
 
(h)   any liabilities for legal fees and expenses of Hightower related to the transactions contemplated hereby; and
 
(i)   any other liabilities or obligations of Hightower or the Business accruing on or prior to the Closing Date.
 
 “ GAAP ” means United States generally accepted accounting principles as in effect from time to time.
 
Governmental Entity ” shall mean any government (including any United States of foreign federal, state, provincial, cantonal, municipal or county government), any political subdivision thereof and any governmental, administrative, ministerial, regulatory, central bank, self-regulatory, quasi-governmental, taxing, executive, or legislative department, commission, body, agency, authority or instrumentality of any thereof.
 
Indemnified Party ” has the meaning set forth in Section 7.03 below.
 
Indemnifying Party ” has the meaning set forth in Section 7.03 below.
 
Intellectual Property ” means: (a) inventions (whether patentable or unpatentable and whether or not reduced to practice), improvements thereon, and patents, patent applications and patent disclosures, together with reissues, continuations, continuations-in-part, revisions, extensions and reexaminations thereof; (b) trademarks, service marks, trade dress, logos, trade names, URLs, domain names and corporate names, together with translations, adaptations, derivations, and combinations thereof, and including but not limited to goodwill associated therewith, applications, registrations and renewals in connections therewith including, without limitation, the names “Hightower,” “Hightower, Inc.,” “Hightower POS,” Hightower P2,” “MultiBin,” “Click2PayNow,” “Direct Deposit,” “Gift Card for Point of Sale Professional,” “MASTransit,” “Laser Checks,” “Multi-Bin Advanced Distribution,” “Point of Sale Professional,” “Retainer Control,” “RemoteXerver,” “ScanBlaster,” “Time & Billing,” “Time & Billing Professional,” “Timekeeper” and any names similar thereto, and the rights to use the Internet domain name “http://www.hightowerinc.com” and all iterations and permutations thereof, together with all logos, slogans, trademarks, and service marks relating thereto used by Hightower in connection therewith; (c) copyrightable works, copyrights, and applications, registrations and renewals in connections therewith, mask works and applications, registrations and renewals in connections therewith; (d) trade secrets and confidential business information (including but not limited to research and development, know-how, formulas, compositions, manufacturing and reproductions processes and techniques, methods, schematics, technology, flowcharts, block diagrams, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals); (e) computer software (including but not limited to data related documentation); (f) copies and tangible embodiments of any of the foregoing (in whatever form or medium); and (g) licenses, sublicenses, permissions or contacts in connection with any of the foregoing.
 
 
4

 
 
Intellectual Property Rights ” means the rights or interest of any Person in or to any Intellectual Property.
 
Judicial Authority ” shall mean any court, arbitrator, special master, receiver, tribunal or similar body of any kind.
 
Knowledge ” means actual knowledge of a Person after due inquiry.
 
License ” means any agreement between Hightower and end user which establishes rights under which Hightower’s software application may be used.
 
 “ Material Adverse Effect ” means (i) with respect to Hightower, a material adverse effect on (A) the Acquired Assets, (B) the ability of Hightower to perform its obligations under this Agreement, or (C) the validity or enforceability of this Agreement, and (ii) with respect to Buyer, a material adverse effect on (A) the ability of Buyer to perform its obligations under this Agreement, or (B) the validity or enforceability of this Agreement.
 
Notice of Claim ” has the meaning set forth in Section 7.03.
 
Ordinary Course of Business ” means the ordinary course of business consistent with past custom and practice (including with respect to quantity and frequency).
 
Party ” has the meaning set forth in the preface above.
 
Person ” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or a governmental entity (or any department, agency, or political subdivision thereof).
 
 “ Proceeding ” shall mean any action, suit, counter-claim, arbitration, mediation, litigation, inquiry, hearing, investigation or other proceeding of any kind involving any Governmental Entity, any Judicial Authority or any other Person.
 
 
5

 
 
Product ” “ Product Lines ” and “ Enhancements ” mean any of the following
products created by HighTower: ccEtrust, Click2PayNow, Direct Deposit, Gift Card Expansion Pack, MAStransit, MICR Encoded Laser Checks, Multi-bin Advanced Distribution, Point of Sale Professional, Professional Retainer Control, RemoveXerver, ScanBlaster, Time and Billing, Time and Billing Professional, and Timekeeper.

Purchase Price ” has the meaning set forth in Section 2.02 below.
 
Security Interest ” means any mortgage, pledge, lien, encumbrance, charge, or other security interest, other than (a) mechanic’s, materialmen’s, and similar liens, (b) liens for Taxes not yet due and payable or for Taxes that the taxpayer is contesting in good faith through appropriate proceedings, (c) purchase money liens and liens securing rental payments under capital lease arrangements, and (d) other liens arising in the Ordinary Course of Business and not incurred in connection with the borrowing of money.
 
Hightower ” has the meaning set forth in the preface above.
 
 “ Stockholder ” has the meaning set forth in the preface above.
 
 “ Taxes ” means (A) all income taxes (including any tax on or based upon net income, gross income, income as specially defined, earnings, profits or selected items of income, earnings or profits) and all gross receipts, sales, use, ad valorem, transfer, franchise, license, withholding, payroll, employment, excise, severance, stamp, occupation, premium, property or windfall profits taxes, alternative or add-on minimum taxes, customs duties and other taxes of any kind whatsoever, together with all interest and penalties, additions to tax and other additional amounts imposed by any Governmental Entity on such entity, and (B) any liability for the payment of any amount of the type described in the immediately preceding clause (A) as a result of being a “transferee” (within the meaning of Section 6901 of the Code or any other applicable law) of another entity, a member of an affiliated or combined group, a contract or otherwise.
 
Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule, exhibit or attachment thereto.
 
Third Party Claim ” has the meaning set forth in Section 7.03 below.
 
Trust Agreement ” means the Trust Agreement and Assignment for the Benefit of Creditors of Hightower, Incorporated executed on or about May 1, 2012.
 
 
6

 
 
ARTICLE 2
 
BASIC TRANSACTION
 
Section 2.01                          Purchase and Sale of Assets .  On and subject to the terms and conditions of this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to sell, transfer, convey, and deliver to Buyer, all of the Acquired Assets at the Closing in consideration of the payments by Buyer of the Purchase Price, plus such other amounts, as specified below in Section 2.02.
 
Section 2.02                        Purchase Price .  Payments shall be made (the “ Purchase Price ”) by wire transfer of immediately available funds for disbursement in accordance with the following: (i) on the Closing Date, Buyer shall pay Seller $350,000 in cash; (ii) on the Closing Date, Buyer shall deliver fifty percent (50%) of the outstanding balance of Hightower’s outstanding payroll taxes not to exceed $60,005.96 in the form of a certified check in favor of the US Treasury to Seller towards payment of Hightower’s outstanding payroll taxes due and owing to the Internal Revenue Service; (iii) on the Closing Date, the Stockholders shall collectively deliver the balance of Hightower’s outstanding payroll taxes due and owing to the Internal Revenue Service in the form of a certified check in favor of the US Treasury to Seller towards payment of Hightower’s outstanding payroll taxes due and owing to the Internal Revenue Service; (iv) on the Closing Date, Buyer shall enter into a consulting agreement with Jeffrey Rosengarden substantially in the form attached hereto as Exhibit A ; and (v) on the Closing Date, Buyer shall enter into a consulting agreement with Robert Nordin substantially in the form attached hereto as Exhibit B .
 
Section 2.03                          Excluded Assets .  Notwithstanding anything herein to the contrary, the Acquired Assets shall not include and Buyer shall not acquire any right, title or interest in and to the Excluded Assets.
 
Section 2.04                          Excluded Liabilities .  Notwithstanding anything herein to the contrary, Buyer shall not assume or have responsibility for any liabilities of any type whatsoever.
 
Section 2.05                          Closing .  The Closing of the transactions contemplated by this Agreement (the “ Closing ”) shall take place three Business Days following the satisfaction or waiver of the conditions set forth in Article 6 or at such other date and time that the Parties may mutually agree, at the offices of Lucosky Brookman LLP, located at 33 Wood Avenue South, Iselin, New Jersey 08830.  The date on which the Closing occurs is referred to herein as the (“ Closing Date ”) and the Closing shall be deemed effective as of 12:00 p.m. New York time on the Closing Date.
 
Section 2.06                          Deliveries at the Closing .  At the Closing, (i) Hightower will deliver to Buyer the various certificates, instruments, and documents referred to in Section 6.01 below; (ii) Buyer will deliver to Seller the various certificates, instruments, and documents referred to in Section 6.02 below; (iii) Seller will execute, acknowledge (if appropriate), and deliver to Buyer (A) a bill of sale in the form attached hereto as Exhibit C , and (B) such other instruments of sale, transfer, conveyance and assignment as Buyer and its counsel reasonably may request; (iv) Buyer will execute, acknowledge (if appropriate), and deliver to Seller such instruments of assumption as Seller and its counsel reasonably may request; (v) the Parties shall make payments and deliveries in accordance with Section 2.02 herein.
 
 
7

 
 
Section 2.07                          Allocation .  The Parties agree to allocate the Purchase Price (and all other capitalizable costs) among the Acquired Assets for all purposes (including financial accounting and tax purposes) in accordance with Section 2.02 herein, and the Parties shall make all necessary filings (including those under Section 1060 of the Code) in accordance with such allocation.
 
Section 2.08                          Transfer and Maintenance of Books and Records .
 
(a)   Upon request from Buyer to Hightower, Buyer shall be granted access to the books and records of Hightower within twenty four (24) hours solely for audit purposes.  Seller shall transfer to Buyer at Closing all of the Acquired Assets, including without limitation (i) the Contracts, (ii) the Client Lists, (iii) the Intellectual Property, (iv) the Accounts Receivable, and (v) all tangible personal property.  Seller shall use its best efforts to deliver to Buyer, in such locations as designated by Buyer, actual possession of  the Client Lists and the Contracts, as soon as possible after Closing, but in no event later than ten (10) Business Days after the Closing Date. Any Acquired Assets, including any Client Lists or Contracts, held by Seller after the Closing shall be held by Seller as agent for Buyer pursuant to this Agreement.    In addition, Seller shall within five (5) Business Days of receipt forward to Buyer all notices, correspondence and other documents received from customers, lenders, vendors or other similar Persons, which documents relate to the Acquired Assets and are received by Seller after the Closing. Nevertheless, Seller shall retain those documents, agreements and all other books and records relating primarily to any Excluded Asset or Excluded Liability.
 
(b)   Any books and records relating to the Acquired Assets or the Business held by either Seller, Hightower or the Buyer after Closing shall be maintained in accordance with (and for the period provided in) that party's record keeping policies and procedures. Throughout that period, the party holding any such books and records shall comply with the reasonable request of the other party to provide copies of specified documents.  The requesting party shall give reasonable notice of any such request.  Without limiting the foregoing, neither party will destroy any books or records relating to the Acquired Assets or the Business before the fifth (5th) anniversary of the Closing without first providing sixty (60) days written notice to the other party.  Subject to any obligation to keep the records confidential, the party receiving the notice shall be permitted to inspect any such records and to take possession of them, provided that it shall reimburse the party providing the notice for any reasonable, out-of pocket expense incurred in that regard.  Notwithstanding anything to the contrary contained herein, the obligations set forth in this Section shall survive the Closing.
 
ARTICLE 3
 
REPRESENTATIONS AND WARRANTIES OF SELLER, HIGHTOWER AND STOCKHOLDERS
 
Hightower and each Stockholder  represent and warrant, jointly and severally, to Buyer that the statements contained in this Article 3 are correct and complete as of the date hereof and as of the Closing Date, except as set forth in the disclosure schedule accompanying this Agreement or any amendments (or deemed amendments thereto) (the “ Disclosure Schedule ”). Seller represents and warrants to Buyer that to the best of Seller’s knowledge the statements contained solely in Section 3.02, Section 3.03, and Section 3.04 are correct and complete as of the Closing date except as set forth in the Disclosure Schedule. The Disclosure Schedule will be arranged in sections corresponding to the lettered and numbered sections contained in this Article 3.
 
 
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Section 3.01                          Organization of Hightower and Stockholders .  Hightower and each Stockholder, if an entity, is a corporation or other business entity duly organized, validly existing, and in good standing under the laws of the jurisdiction of organization and is duly qualified to conduct business and is in good standing in each jurisdiction in which the nature of Hightower’s and Stockholders business or the ownership or leasing of each of their properties requires such qualifications.  Hightower has all requisite corporate power and authority to carry on the businesses in which it is engaged, to carry on the Business proposed to be conducted by the Buyer and to own and use the properties owned and used by it.  Hightower has delivered to Buyer correct and complete copies of Hightower ‘s charter and bylaws (as amended to date).
 
Section 3.02                          Authorization of Transaction; Enforceability .  Seller, Hightower and each Stockholder has the  power and authority necessary to execute and deliver this Agreement and to perform its obligations hereunder.  The execution and delivery of this Agreement has been duly authorized by all necessary corporate, stockholder or other action by Seller, Hightower and each Stockholder.  This Agreement has been duly executed and delivered by Seller, Hightower and the Stockholders.  This Agreement constitutes the valid and legally binding obligations of Seller, Hightower and the Stockholders, enforceable in accordance with its terms and conditions, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law).
 
Section 3.03                          Noncontravention .  To the best of Seller’s knowledge, neither the execution and the delivery of this Agreement (including the documents referred to in Section 2.06 above), nor the consummation of the transactions contemplated hereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, Governmental Entity, or court to which Seller, Hightower or any Stockholder is subject or any provision of the charter, bylaws or other organizational documents of Hightower or any Stockholder, or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any agreement, contract, lease, license, instrument, or other arrangement to which Hightower or any Stockholder is a party or by which it is bound or to which any of the Acquired Assets is subject (or result in the imposition of any Security Interest upon any of the Acquired Assets).
 
Section 3.04                          Brokers’ Fees .  To the best of Seller’s knowledge, Seller, Hightower, and each Stockholder has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Buyer could become liable or obligated.
 
 
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Section 3.05                          Client Lists .  To the best of Seller’s knowledge, Exhibit E attached hereto contains a complete and correct list of each Client List, as amended, including the date of such Client List and each amendment thereto.  With respect to each Client List, to the best of Seller’s knowledge:
 
(a)   each Client List is a true, accurate, and complete listing of each and every former clients of the Hightower since inception of the Business;
 
(b)   there are no material disputes or threatened disputes with any Person listed on the Client List;
 
Section 3.06                          Events Subsequent to Letter of Intent .  To the best of Seller’s knowledge, except for the execution of the Trust Agreement, since Hightower and Buyer entered into that certain letter of intent dated March 22, 2012 (the “Letter of Intent”), (a) there has occurred no event or development which, individually or in the aggregate, has had, or could reasonably be expected to have in the future, a Material Adverse Effect.  Without limiting the generality of the foregoing, since that date there has not been any:
 
(a)   declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock;
 
(b)   creation, incurrence or assumption of any indebtedness (including obligations in respect of capital leases); assumption, guaranty, endorsement or other creation of liability or responsibility (whether directly, contingently or otherwise) for the obligations of any other person or entity; or made any loans, advances or capital contributions to, or investments in, any other person or entity;
 
(c)   commitment to make any capital expenditure in excess of $10,000;
 
(d)   damage, destruction or loss, whether or not covered by insurance;
 
(e)   waiver by Hightower of a right or of debt owed to it;
 
(f)   satisfaction or discharge of any encumbrance or payment of any obligation by Hightower not in the ordinary course of business consistent with past practice and in an aggregate amount exceeding $10,000;
 
(g)   labor dispute, other than routine individual grievances, or any activity or proceeding to organize any employees of the Business, or any lockouts, strikes, slowdowns, work stoppages or threats thereof by or with respect to such employees;
 
(h)   change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or payment of or agreement (written or oral) to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any, director, officer, employee, consultant or agent, or new employment, compensation or deferred compensation agreement (or any amendment of any such existing agreement);
 
 
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(i)   initiation, receipt or settlement of any Proceeding or action affecting Hightower or otherwise material to the Business;
 
(j)   act to (i) accelerate the billing of any customers of Hightower or the collection of any Accounts Receivable of Hightower, (ii) delay the payment of any accounts payable or accrued expenses of Hightower or (iii) defer any expenses of Hightower; or
 
(k)   any agreement, whether oral or written, fixed or contingent, by Hightower to do any of the foregoing.
 
Section 3.07                          Contracts .    Seller makes no representations or warranties to Buyer with respect to each Contract that is subject to this Agreement.  Hightower has delivered complete and accurate copies of each Contract to the Buyer.  With respect to each Contract:
 
(a)   each Contract is the legal, valid, binding and enforceable obligation of Hightower, and is in full force and effect with respect to Hightower.
 
(b)   Each Contract will continue to be legal, valid, binding, enforceable by Buyer, and in full force and effect immediately following the Closing in accordance with the terms that are in effect immediately prior to the Closing;
 
(c)   Hightower is in material compliance with the terms and conditions of each Contract;
 
(d)   there are no material disputes or threatened disputes with any Person under any Contract;
 
(e)   No party is in breach or default, and no event has occurred which with notice or lapse of time or both would constitute a breach or default, or permit termination, modification, or acceleration, under such Contract;
 
(f)   no Person has provided Hightower with notice that it intends to terminate any Contract;
 
(g)   to the extent insurance is required under the terms of such Contract, Hightower is in compliance with such requirements.
 
Section 3.08                          Litigation .  Hightower or the Business is not (i) subject to any outstanding injunction, judgment, order, decree, ruling, or charge, or (ii) a party to or threatened to be made a party to any Proceeding.
 
(a)   the Stockholders are not subject to any Proceeding relating to the Business that could reasonably have a Material Adverse Effect on the Business or is reasonably likely to affect the legality, validity or enforceability of this Agreement or any of the transactions contemplated hereby.
 
Section 3.09                          Warranties .  Except to provide support services in the Ordinary Course of Business neither the software licensed nor the services delivered by Hightower are subject to any guaranty or, warranty; and there is no right of return, right of credit or other indemnity, except with respect to infringement of third-party intellectual property rights, breach by the Hightower of its obligations under a Contract or as otherwise set forth herein.  Hightower does not know of any reason why such expenses should significantly increase as a percentage of sales in the future.
 
Section 3.10                          Title to Tangible Personal Property .  Section 3.10 of the Disclosure Schedule lists the material tangible personal property of the Business which is used regularly in the Business.  Except as set forth in Section 3.10 of the Disclosure Schedule, Seller has good title to, or a valid leasehold interest in, such tangible assets free of any Security Interests.  All personal tangible property of the Business is freely assignable by Seller to Buyer. Buyer shall not be obligated to remove any tangible personal property from the premises of Hightower.
 
 
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Section 3.11                          Intellectual Property .
 
(a)   Section 3.11 of the Disclosure Schedule contains a complete and accurate list of all of the material Intellectual Property previously owned, used or held for use by Hightower in the conduct of its Business and there is no other Intellectual Property previously owned, used or held for use by Hightower material to the conduct of its Business.  Such Intellectual Property is the only Intellectual Property necessary to operate the Business materially as it is currently operated.
 
(b)   Neither Hightower nor the license or other use of any Intellectual Property not previously owned by Hightower included in the Acquired Assets has to Hightower’s knowledge violated or infringed, and currently does not violate or infringe, upon the Intellectual Property of any Person.  Hightower has not been a defendant in any action, suit, investigation or proceeding relating to, or otherwise has been notified of, any alleged claim of infringement of any other Person’s Intellectual Property, which Proceedings are still active, and Hightower has no outstanding Proceedings for (or any knowledge of) any continuing infringement of Intellectual Property by any other Person.
 
(c)   As a result of the execution of the Trust Agreement by Hightower, Seller (i) is the sole and exclusive owner of, with all right, title and interest in and to (free and clear of any Security Interests), any and all Intellectual Property owned by it included in the Acquired Assets, (ii) has rights to the use of all such Intellectual Property used by it pursuant to license, sublicense, agreement, or permissions and, except as set forth in Section 3.11 of the Disclosure Schedule, is not contractually obligated to pay any compensation or grant any rights to any third party in respect thereof and (iii) has the right to require the application of any such Intellectual Property previously owned by Hightower that constitutes an application for registration, including but not limited to all patent applications, trademark application service mark applications, copyright applications and mask work applications, and to transfer ownership to Buyer of the application and of the registration once it issues.
 
(d)   To the best of Seller’s knowledge, Hightower has kept secret and has not disclosed the source code for any Intellectual Property previously owned by Hightower to any Person other than in the Ordinary Course of Business to persons who are subject to the terms of a binding confidentiality agreement with respect thereto.  To the best of Seller’s knowledge, Hightower has taken all appropriate measure to protect the confidential and proprietary nature of any Intellectual Property previously owned by Hightower including without limitation the use of confidentiality agreements with all of its employees or other persons having access to any source and object codes.
 
 
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(e)   To the best of Seller’s knowledge, any and all Intellectual Property previously owned by Hightower included in the Acquired Assets that are registrations, including but not limited to all registered patents, trademarks, service marks, copyrights and masks works, are valid and subsisting and in full force and effect.
 
(f)   Hightower has not granted any licenses to or other rights in any Intellectual Property included in the Acquired Assets to any Person; to Hightower’s knowledge, no Person is currently using such Intellectual Property except in connection with the Business.
 
(g)   The execution, delivery and performance by Seller and the Stockholders of this Agreement and the consummation of the transactions contemplated hereby and thereby shall not alter or impair or result in the loss of any rights or interests of Seller in any Intellectual Property included in the Acquired Assets owned by Seller or as to which Seller obtains any consent to the transactions contemplated hereby and all such Intellectual Property shall be owned or available for use by Buyer on identical terms and conditions immediately subsequent to the Closing.
 
(h)   To the best of Seller’s knowledge, none of the Intellectual Property previously owned by Hightower included in the Acquired Assets, if any, is subject to any outstanding order or agreement restricting in any manner the use of licensing thereof by Hightower.
 
(i)   To the best of Seller’s knowledge, except as set forth in Section 3.11 of the Disclosure Schedule, all of the Intellectual Property used in the Business is freely assignable to Buyer.
 
Section 3.12                          Employees .  To the best of Seller’s knowledge, each current or past employee of Hightower has entered into a confidentiality/assignment of inventions agreement with Hightower, a copy or form of which has previously been delivered to Buyer.  The Stockholders represent and warrant that each such agreement referenced in the preceding sentence to which Hightower is a party are legal, valid, binding and enforceable and in full force and effect immediately prior to the Closing.
 
Section 3.13                          Accounts Receivable .  To the best of Seller’s knowledge, all Accounts Receivable of Hightower existing on the business day immediately preceding the Closing Date are reflected on Section 3.13 of the Disclosure Schedule (other than those paid since the date hereof), are valid receivables subject to no setoffs or counterclaims and are current and collectible, net of the applicable reserve for bad debts as of the Letter of Intent.  A complete and accurate list of the Accounts Receivable reflected as of the Letter of Intent, showing the aging thereof, is included in Section 3.13 of the Disclosure Schedule.  All Accounts Receivable of Hightower that have arisen from bona fide third party sales in the ordinary course of business consistent with past practice, are valid receivables subject to no setoffs or counterclaims, are current and collectible, and is scheduled to be collected within 90 days after the date on which it first became due and payable in accordance with their terms at their recorded amounts, except as set forth in Section 3.13 of the Disclosure Schedule.  Hightower has not received any written notice from an account debtor stating that any Account Receivable is subject to any contest, claim or set-off by such account debtor except as set forth in Section 3.13 of the Disclosure Schedule.
 
 
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Section 3.14                          Disclosure .  No (i) representation or warranty by Hightower or the Stockholders contained in this Agreement or any certificate, or (ii) any statement contained in the Disclosure Schedule delivered to Buyer by or on behalf of Hightower pursuant to this Agreement, contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary, in light of the circumstances under which it was or will be made, in order to make the statements herein or therein not misleading.
 
Section 3.15                        Assignment .  Seller represents and warrants to Buyer that the Trust Agreement and Assignment for the Benefit of Creditors of Hightower, Incorporated executed on or about May 1, 2012 is a valid and enforceable assignment recognized under Illinois law as a nonjudicial alternative for administering the affairs of an insolvent business enterprise such as Hightower.
 
ARTICLE 4 
 
REPRESENTATIONS AND WARRANTIES OF BUYER.
 
Buyer represents and warrants to Seller that the statements contained in this Article 4 are correct and complete as of the Closing Date.
 
Section 4.01                          Organization of Buyer .  Buyer is a Delaware corporation duly incorporated, validly existing, and in good standing under the laws of the jurisdiction of its incorporation.
 
Section 4.02                          Authorization of Transaction .  Buyer has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder and thereunder.  The execution and delivery of this Agreement has been duly authorized by all necessary action by Buyer.  This Agreement has been duly executed and delivered by Buyer.  This Agreement constitutes the valid and legally binding obligation of Buyer, enforceable in accordance with its terms and conditions, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or law).
 
Section 4.03                          Noncontravention .  Neither the execution and the delivery of this Agreement (including the documents referred to in Section 2.06 above), nor the consummation of the transactions contemplated hereby and thereby, will (i) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Buyer is subject or any provision of the organizational documents of Buyer or (ii) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under, any agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a party or by which it is bound or to which any of its assets is subject. Buyer does not need to give any notice to, make any filing with, or obtain any authorization, consent, or approval of any government or governmental agency in order to enter into or perform its obligations under this Agreement.
 
 
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Section 4.04                          Brokers’ Fees .  Buyer has no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Hightower could become liable or obligated.
 
Section 4.05                          No Other Representations and Warranties .  Except as set forth in this Agreement, Buyer makes no other representation or warranty, express or implied, with respect to any of the transactions contemplated by this Agreement, with respect to Buyer, or with respect to any other matter whatsoever.
 
Section 4.06                          Transition .  Immediately after the date hereof, Buyer and the Stockholders  will develop a joint client communication program, under which (among other things) the Stockholders  will make introductions to customers of the Business and assist in responding to any questions raised, and will encourage customers of the Business to move and maintain their business to Buyer and to consent as necessary to the transfer to Buyer of the Contracts and Client Lists, as applicable.  Neither Hightower nor any Stockholder will take any action that is designed or intended to have the effect of discouraging any lessor, licensor, customer, supplier, or other business associate of Hightower from maintaining the same business relationships with Buyer after the Closing as it maintained with Hightower prior to the Closing.  Seller and the Stockholders will refer all customer inquiries relating to the Business to Buyer after the Closing.
 
ARTICLE 5
 
POST-CLOSING COVENANTS
 
Section 5.01                          General .  In case at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, each of the Parties will take such further action (including the execution and delivery of such further instruments and documents) as the other Party reasonably may request, at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefore under Article 7 below).
 
Section 5.02                          Litigation Support .  In the event and for so long as any Party actively is contesting or defending against any Proceeding in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date involving the Business, the other Party will cooperate with the contesting or defending Party and its counsel in the contest or defense, make available its personnel, and provide such testimony and access to its books and records as shall be necessary in connection with the contest or defense, all at the sole cost and expense of the contesting or defending Party (unless the contesting or defending Party is entitled to indemnification therefore under Article 7 below).
 
 
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Section 5.03                          Proprietary Information .  From and after the Closing, neither Hightower, Seller nor any of the Stockholders shall, either directly or indirectly (including through an Affiliate), disclose to any third party or make use of (except as required by law or to pursue their rights, under this Agreement), any information or documents of a confidential nature concerning Hightower, Seller, the Stockholders, the Business, the Acquired Assets or the Buyer or its business, except to the extent that such information or documents shall have become public knowledge other than through improper disclosure by Hightower, Seller or any of the Stockholders or any of their Affiliates.
 
Section 5.04                          Solicitation and Hiring .  For a period of two years after the Closing Date, neither Hightower nor any of the Stockholders shall, either directly or indirectly (including through an Affiliate), (a) solicit or attempt to induce any Employee of Buyer to terminate his employment with Buyer or any Affiliate of Buyer or (b) hire or attempt to hire any Employee of Buyer.
 
Section 5.05                          Non-Competition .  Hightower along with each Stockholder as set forth on the signature page hereto shall personally enter into a three (3) year non-compete and non-solicitation agreement with Buyer, whereby the Stockholders agree to the following: (i) the Stockholders shall not solicit any individual or entity set forth on the Client Lists; (ii) the Stockholders shall not work for any Sage reseller within a 100 mile radius of Skokie, Illinois; (iii) the Stockholders shall not create, develop, sell, market, or resell any product that competes with Hightower’s Enhancements; (iv) the Stockholders shall not solicit in any way any of Buyer’s employees or contractors; and (v) Notwithstanding the foregoing, the Stockholders shall be entitled to contact or communicate with Sage business partners for any purpose not contrary to the other provisions of this Section 5.05.
 
Section 5.06                          Apportionment .  If Hightower, Seller, or any of the Stockholders, or any of their Affiliates receive any amounts in payment of obligations owed to Buyer, including, but not limited to, payments owed to Buyer in respect of the Acquired Assets, then the receiving party shall promptly deliver or pay them over to Buyer.  If Buyer or any of its Affiliates receives any amounts in payment of obligations owed to Hightower, Seller or any of the Stockholders or any of their respective Affiliates then Buyer shall promptly deliver or pay them over to Seller.
 
Section 5.07                          Alternate Forms of Asset Transfer .  Buyer shall undertake performance of any obligation contained in the Acquired Assets, in Hightower’s and Seller’s stead, and, if any such obligation cannot be assigned without the consent of a third party which shall not have been obtained, Buyer’s undertaking shall constitute a sub-contract of Hightower’s and Seller’s obligation or other kind of arrangement between Buyer, Seller and Hightower, if any, pursuant to which Buyer can undertake such performance (and receive the benefit thereof) without such third party’s consent; or if no such arrangement shall exist, Buyer shall nonetheless perform such obligation, unless the third party shall expressly reject Buyer’s performance, in which case, Buyer shall be released of the undertaking with respect to such obligation, and Hightower  shall be liable for any damages that the third party shall establish that it suffered and indemnify Buyer and hold Buyer harmless with respect thereto.
 
 
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Section 5.08                          Use of Proceeds .  Seller shall apply the proceeds from the transactions contemplated by this Agreement as specified above in Section 2.02.
 
Section 5.09                          Certain Tax Considerations
 
(a)   All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including any penalties and interest) incurred in connection with the sale of the Acquired Assets (including any real property transfer Tax and any similar Tax) shall be borne and paid by Hightower, when due, and Hightower will, at its own expense, file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges.
 
(b)   Hightower shall take all actions required to comply with all bulk sales laws which may be applicable to the transactions contemplated herein, including, without limitation, the timely filing of any required Tax Returns.
 
(c)   For the avoidance of doubt, Hightower shall be responsible for the filing of all Tax Returns and the payment of all Taxes (whether or not shown on such returns) with respect to Hightower, the Acquired Assets and the Business for all periods up to and including the Closing Date and all such Taxes shall be Excluded Liabilities.
 
ARTICLE 6
 
CONDITIONS TO OBLIGATION TO CLOSE
 
Section 6.01                        Conditions to Obligation of Buyer .  The obligation of Buyer to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
 
(a)   (i) the representations and warranties set forth in Article 3 above, shall be true and correct in all material respects, and (ii) all agreements and covenants contained in this Agreement shall have been performed or complied with by Hightower, in each case, at and as of the Closing Date;
 
(b)   Seller shall have delivered to Buyer a certificate to the effect that each of the conditions specified above in Section 6.01(a) is satisfied in all respects;
 
(c)   Seller shall have delivered to Buyer the bill of sale required under Section 2.06, together with any other instrument of transfer necessary to convey to Buyer all of the Acquired Assets, which instruments shall be reasonably satisfactory in form and substance to Buyer;
 
(d)   there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement;
 
 
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(e)   Buyer shall have received from counsel to Seller, an opinion in form and substance as set forth in Exhibit D attached hereto, addressed to Buyer, and dated as of the Closing Date;
 
(f)   Buyer shall have received duly executed UCC-3 termination statements and such other release and termination instruments (or copies thereof) as the Buyer shall reasonably request in order to vest all right, title and interest in and to the Acquired Assets free and clear of all Security Interests; and
 
(g)   Hightower shall have timely filed any and all required Tax Returns necessary to comply with all bulk sales laws which may be applicable to the transactions contemplated herein.
 
Buyer may waive any condition specified in this Section 6.01 if it executes a writing so stating at or prior to the Closing.
 
Section 6.02                        Conditions to Obligation of Seller .  The obligation of Seller to consummate the transactions to be performed by it in connection with the Closing is subject to satisfaction of the following conditions:
 
(a)   (i) the representations and warranties set forth in Article 4 above shall be true and correct in all material respects and (ii) all agreements and covenants contained in this Agreement shall have been performed or complied with by Buyer, in each case, at and as of the Closing Date;
 
(b)   Buyer shall have delivered to Seller a certificate to the effect that each of the condition specified above in Section 6.02(a) is satisfied in all respects;
 
(c)   Buyer shall have delivered to Seller the items required under Section 2.06, together with any other instruments necessary to acquire right, title and interest in and to the Acquired Assets, which instruments shall be reasonably satisfactory in form and substance to Seller;
 
(d)   there shall not be any injunction, judgment, order, decree, ruling, or charge in effect preventing consummation of any of the transactions contemplated by this Agreement.
 
Seller may waive any condition specified in this Section 6.02 if it executes a writing so stating at or prior to the Closing.
 
ARTICLE 7
 
REMEDIES FOR BREACHES OF THIS AGREEMENT.
 
Section 7.01                        Survival .  All of the representations, warranties and covenants contained in this Agreement, and the Exhibits and Disclosure Schedule attached hereto shall survive the Closing and remain in full force and effect for eighteen (18) months commencing on the Closing Date.
 
 
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Section 7.02                        Indemnification .
 
(a)   Hightower and each Stockholder, jointly and severally agrees to indemnify, defend and hold harmless Buyer, its Affiliates and, if applicable, their respective directors, managers, officers, shareholders, members, partners, employees, attorneys, accountants, agents and representatives and their heirs, successors and assigns from and against any and all Adverse Consequences based upon, arising out of or otherwise in respect of (i) any inaccuracy in or any breach of any representation, warranty or covenant of Hightower or any Stockholder contained in this Agreement, (ii) any Adverse Consequences Buyer shall suffer under Section 5.07 hereof and (iii) any Adverse Consequences Buyer shall suffer from, or any Third Party Claim, arising out of or in connection with the Acquired Assets prior to the Closing Date.
 
(b)   Buyer agrees to indemnify, defend and hold harmless Hightower and each Stockholder, its Affiliates and, if applicable, their respective directors, managers, officers, shareholders, members, partners, employees, attorneys, accountants, agents and representatives and their heirs, successors and assigns from and against any and all Adverse Consequences based upon, arising out of or otherwise in respect of (i) any inaccuracy in or any breach of any representation, warranty or covenant of Buyer contained in this Agreement, and (ii) any Adverse Consequences Hightower shall suffer from, or any Third Party Claim, arising out of or in connection with, the Business or the Acquired Assets after the Closing Date.
 
(c)   The obligations to indemnify and hold harmless pursuant to paragraphs (a) and (b) of this Section 7.02 shall survive the consummation of the transactions contemplated hereby for the period set forth in Section 7.01, except for claims for indemnification asserted prior to the end of such period, which claims shall survive until final resolution thereof.
 
(d)   Each of Buyer and Hightower agree that any legal fees and expenses that result from a meritorious claim made under this Article 7 that is not a Third Party Claim shall be paid by the Indemnifying Party.
 
Section 7.03                        Matters Involving Third Parties .
 
(a)   If any Party entitled to be indemnified pursuant to Section 7.02 (an “ Indemnified Party ”) receives notice of the assertion of any claim in respect of Adverse Consequences (a “ Third Party Claim ”), such Indemnified Party shall give the party who may become obligated to provide indemnification hereunder (the “ Indemnifying Party ”) written notice describing such claim or fact in reasonable detail (the “ Notice of Claim ”) promptly (and in any event within ten (10) Business Days after receiving any written notice from a third party).  The failure by the Indemnified Party to timely provide a Notice of Claim to the Indemnifying Party shall not relieve the Indemnifying Party of any liability, except to the extent that the Indemnifying Party is prejudiced by the Indemnified Party’s failure to provide timely notice hereunder.
 
(b)   In the event any Indemnifying Party notifies the Indemnified Party within ten (10) Business Days after the Indemnified Party has provided a Notice of Claim that the Indemnifying Party is assuming the defense thereof: (i) the Indemnifying Party will defend the Indemnified Party against the matter with counsel of its choice, subject to the consent of the Indemnified Party; (ii) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of the separate co-counsel to the extent the Indemnified Party reasonably concludes that the counsel the Indemnifying Party has selected has a conflict of interest); (iii) the Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to the matter without the written consent of the Indemnifying Party; and (iv) the Indemnifying Party will not consent to the entry of any judgment with respect to the matter, or enter into any settlement which does not include a provision whereby the plaintiff or claimant in the matter releases the Indemnified Party from all liability with respect thereto.
 
 
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(c)   In the event the Indemnifying Party does not notify the Indemnified Party within ten (10) Business Days after the Indemnified Party provides the Indemnifying Party with a Notice of Claim that the Indemnifying Party is assuming the defense thereof, then the Indemnified Party shall have the right, subject to the provisions of this Article, to undertake the defense, compromise or settlement of such claim for the account of the Indemnifying Party.  Unless and until the Indemnifying Party assumes the defense of any claim, the Indemnifying Party shall advance to the Indemnified Party any of its reasonable attorneys’ fees and other costs and expenses incurred in connection with the defense of any such action or proceeding.  Each Indemnified Party shall agree in writing prior to any such advance that, in the event it receives any such advance, such Indemnified Party shall reimburse the Indemnifying Party for such fees, costs and expenses to the extent that it shall be determined that it was not entitled to indemnification under this Article 7.
 
(d)   In the event that the Indemnifying Party undertakes the defense of any claim, the Indemnifying Party will keep the Indemnified Party advised as to all material developments in connection with such claim, including, but not limited to, promptly furnishing the Indemnified Party with copies of all material documents filed or served in connection therewith.
 
Section 7.04                        Right of Offset .  Buyer may offset any amount that may be owed to Seller or a Stockholder under this Agreement or under the Consulting Agreements entered into on the date hereof against any Adverse Consequences, but any such offset shall in no manner limit a Stockholder’s and/or Seller’s liability, if any, to Buyer.
 
ARTICLE 8
 
EMPLOYEES OF THE BUSINESS
 
Section 8.01                        No Obligations to Employees .  Except as provided in this Agreement, Hightower shall be solely responsible for all obligations it may have with respect to all Employees of Hightower, and Buyer shall not assume Hightower’s obligations with respect to Hightower’s Employees.
 
Section 8.02                        Commission Payments Owed By Seller .  Buyer shall not be responsible for any outstanding commission payments due to Employees for the period prior to March 23, 2012 and/or other sales made by the Employees on or prior to March 23, 2012. The Stockholders represent and agree that the payment of such commissions is an obligation of the Stockholders.  The Stockholders further represent that they shall, on the Closing Date, pay Employees any and all outstanding commission amounts due.
 
 
20

 
 
ARTICLE 9
 
MISCELLANEOUS
 
Section 9.01                        Press Releases and Public Announcements .  Commencing on the Closing Date, Buyer may issue any press release or make any public announcement relating to the subject matter of this Agreement. Hightower, Seller and the Stockholders are precluded at all times from issuing any press release or making any public announcement relating to the subject matter of this Agreement without the prior written approval of the Buyer.
 
Section 9.02                        No Third-Party Beneficiaries .  This Agreement shall not confer any rights or remedies upon any Person other than the Parties, the Indemnified Parties and their respective successors and permitted assigns.
 
Section 9.03                        Entire Agreement .  This Agreement (including the documents referred to herein) constitutes the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they related in any way to the subject matter hereof.
 
Section 9.04                        Succession and Assignment .  This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective successors and permitted assigns.  No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other Party; p rovided, however , that Buyer may (i) assign any or all of its rights and interests hereunder to one or more of its Affiliates and (ii) designate one or more of its Affiliates to perform its obligations hereunder (in any or all of which cases Buyer nonetheless shall remain responsible for the performance of all of its obligations hereunder).
 
Section 9.05                        Counterparts .  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together will constitute one and the same instrument.
 
Section 9.06                        Headings .  The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
 
 
21

 
 
Section 9.07                        Notices .  Any notice or other communications hereunder must be in writing and shall be deemed to have been duly given and received on the day on which it is served by personal delivery upon the party for whom it is intended, on the third Business Day after it is mailed by registered or certified mail, return receipt requested, on the Business Day after it is delivered to a national courier service addressed to the party for whom it is intended, or on the Business Day on which it is sent by telecopier; provided, that the telecopy is promptly confirmed by telephone confirmation thereof, to the person at the address set forth below, or such other address as may be designated in writing hereafter, in the same manner, by such person:
 
To Buyer:
 
SWK Technologies, Inc.
5 Regent Street, Suite 520
Livingston, New Jersey 07039
Telephone: (973) 758-6110
Attention: Jeffrey Roth

With copies to:

Lucosky Brookman, LLP
33 Wood Avenue South, 6 th Floor
Iselin, New Jersey 08830
Telephone: (732) 395-4400
Attention: Joseph M. Lucosky, Esq.

To Seller:

Neal Wolf & Associates, LLC
155 North Wacker Drive, Suite 1910
Chicago, Illinois 60606
Telephone: (312) 228-4990
Attention: Neal L. Wolf, Esq.

To Hightower and the Stockholders:

Hightower, Inc.
4709 Golf Road
Skokie, Illinois 60076
Telephone: (847) 674-0081
Attention: Jeffrey Rosengarden

With copies to:

O'Rourke and Moody
55 West Wacker, Suite 1400
Chicago, Illinois 60601
Telephone: (312) 849-2020
Attention: Michael C. Moody, Esq.
 
 
22

 

Section 9.08                        Governing Law .
 
(a)   This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois .
 
(b)   Any judicial proceeding brought with respect to this Agreement by the Stockholders and/or Hightower must be brought in the United States District Court in the State of New Jersey or any court of competent jurisdiction in the State of New Jersey located in Middlesex County. Any judicial proceeding brought with respect to this Agreement by the Buyer must be brought in the United States District Court in the State of Illinois or any court of competent jurisdiction in the State of Illinois located in Cook County; and, each Party: (i) accepts unconditionally, the exclusive jurisdiction of such courts and any related appellate court, and agrees to be bound by any final, non-appealable judgment rendered thereby in connection with this Agreement; and (ii) irrevocably waives any objection it may now or hereafter have as to the venue of any such suit, action or proceeding brought in such a court or that such court is an inconvenient forum; provided , however , that such consent to jurisdiction is solely for the purpose referred to in this Section and shall not be deemed to be a general submission to the jurisdiction of said Courts or the State of Illinois or New Jersey other than for such purpose.
 
(c)   THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT.
 
Section 9.09                        Amendments and Waivers .  No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by Buyer, Seller, and Hightower.  No waiver by any Party of any provision of this Agreement or any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
 
Section 9.10                        Severability .  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
 
Section 9.11                        Expenses .  Each of Seller, Hightower, the Stockholders and Buyer will bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.
 
Section 9.12                        Construction .  Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.  The word “including” shall mean including without limitation.  The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  Personal pronouns, when used in this Agreement, whether in the masculine, feminine or neuter gender, shall include all other genders, and the singular, shall include the plural, and vice versa.
 
 
23

 
 
Section 9.13                        Incorporation of Exhibits and Schedules .   The Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof.
 
Section 9.14                        No Breach of Fiduciary Duty Required .  Nothing in this Agreement shall require, or be construed to require, Seller, Hightower or the Stockholders to take any action or omit to take any action that would be a breach of its fiduciary duties under any agreement to which it is a party or under Applicable Law or which would otherwise be contrary to applicable law.  Without limiting the generality of the foregoing, nothing herein shall require Seller, Hightower or the Stockholders to exercise its discretion to provide any consent or other authorization on behalf of any other Person for which it acts in a fiduciary capacity if such consent or authorization is within its discretion in such fiduciary capacity.  The Parties shall cooperate in good faith to avoid any such breach of fiduciary duties or applicable laws while preserving the overall economic terms of this Agreement and the benefits intended to be provided to the respective Parties hereunder.
 

 

 
 

 

 
[-Signature Page to Asset Purchase Agreement Follows-]
 
 
24

 
 
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first above written.
 
SWK TECHNOLOGIES, INC.


By:  _______________________________
Jeffrey Roth
        Chief Executive Officer

NEAL L. WOLF, ESQ., not individually, but solely in his capacity as Trustee-Assignee under Trust Agreement and Assignment for the Benefit of Creditors of Hightower, Incorporated


By:  _______________________________
Neal L. Wolf, Esq.

HIGHTOWER, INC.


By:  ________________________________
Jeffrey Rosengarden
Chief Executive Officer

STOCKHOLDERS


By:                                                                          
Jeffrey Rosengarden


By:                                                                           
Robert Nordin



By:                                                                         
Brian Dunn



[-Signature Page to Asset Purchase Agreement-]
 
 
25

 

EXHIBIT A

Form of Consulting Agreement

(See Attached)
 
 
26

 
 
EXHIBIT B

Form of Consulting Agreement

(See Attached)
 
 
27

 
 
EXHIBIT C

Form of Bill of Sale

(See Attached)
 
 
28

 

EXHIBIT D

Form of Opinion of Counsel to Seller

(See Attached)
 
 
29

 
 
EXHIBIT E

Client Lists

(See Attached)
 
 
30

 

SCHEDULE 3.10

Tangible Personal Property


Systems
Servers
Other
1.   1 Thinkpad Edge (Santos)
1.   1 DL320 - Office
1.   1 APC AP9211PDU
2.   1 HC CP2025
2.   2 DL380 G2 – Office
2.   1 Raritan IP KVM
3.   1 HP 8000 x 2
3.   2 DL380 G3 – Office
3.   1 Cisco PIX 518E
4.   1 Epson Projector 71c
4.   2 DL380 G4 – Office
4.   1 3COM Switch
5.   1 Oki Data ML321
5.   1 DL38- G5 - Office
5.   1 HP Storage Works Array 500G2
6.   1 Laptop Nobilis N4045
6.   3 Cisco 3500
6.   1 Raritan Keyboard and Mouse
7.   1 Acer LCD
7.   2 PIX506E Firewalls
7.   25 Phones, 1 Polycom Speaker Spider Reception phone
8.   3 LCD Displays
8.   4 Smartups 2200 with extended battery
8.   1 Postage Machine
9.   1 PowerMac (Older) (Dan)
9.   1 DL320- Cluster backup
9.   1 Dart Board
10.   1 LCD (Dan)
10.   1 DL-140 HTIAD1
10.   1 Basketball Machine
11.   1 Generic PS (Elaine)
11.   1 DL-320 HTIAD2
11.   1 Skeeball Machine
12.   1 HP 2500
12.   1 DL-380 HTI-C2
12.   2 Short LED Displays
13.   1 Nobilis System (Chris)
13.   1 DL-380-HTI-C1
13.   1 Long LED Display
14.   1 Nobilis and LCD (Peggy)
14.   1 DL-380-HTIMS
14.   1 XRT Minute Man Power Unit
15.   1 Dell Vostro 200 (Nabil)
15.   1 DL140-Cluster DNS
 
16.   Dimension 3000 and LCD (Sarah)
   
17.   1 Vostro 200 and 2 15” LCD (James)
   
18.   1 Signature Disc Duplicator and Associated Systems
   
19.   4 Nobilis Dev Systems
   
20.   2 PC’s and 2 17” LCD Reception
   
21.   1 HP 7900 and 17” LCD (Niaz)
   
22.   1 HP NX6125 Laptop
   
23.   1 HTI (Deutis)
   
 
 
31

 
 
24.   1 Buffalo Terastation –NAS
   
25.   1 Buffalo Terastation Pro – NAS
   
26.   2 Dukaine Image Projectors 8755B
   
27.   7 ATC PC’s and LCD’s
   
 
 
32

 
 
SCHEDULE 3.11

Intellectual Property


Enhancements
Custom Programming Solution
1.   Source documents for all product design/development documentation for all supported versions
1.   Source documents for all programming specifications and user documentation (including signed specifications)
2.   Source code/projects for every component of enhancement for all supported versions
2.   Source code/projects for every component of custom solution
3.   Source Documents/projects for all help files, installation instructions, user manuals/guides for all supported versions
3.   Installation deliverables for custom solution
4.   Installation deliverables for all supported versions
4.   Source projects used to create installation deliverables (example install shield projects)
5.   Source projects used to create installation deliverables (example – install shield projects) for all supported versions
5.   All passwords used for source code protection for custom solution
6.   All passwords used for source code protection for all supported versions
6.   Source/code projects used for producing product registration codes
7.   Source code/projects used for producing enhancement registration codes for all supported versions
7.   All equipment used to develop, test and deploy custom solution along with equipment documentation.
8.   All equipment used to develop, test, and deploy enhancement along with equipment documentation
 

 
33

 
 
SCHEDULE 3.13

Accounts Receivable

(See Attached)
 
 
34

 
Exhibit 10.1
 
CONSULTING AGREEMENT
 
This Consulting Agreement (this “Agreement”) is made as of June 14, 2012, by and between SWK Technologies, Inc., a corporation incorporated under the laws of the State of Delaware, located at 5 Regent Street, Suite 520, Livingston, New Jersey 07039 (the “Company”), and Robert Nordin, an individual, located at 2400 Fieldcrest Drive, Mundelein, Illinois 60060 (the “Consultant”). In consideration of the respective covenants, representations, warranties and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows:
 
ARTICLE I.
 
ENGAGEMENT OF CONSULTANT
 
Section 1.01   Engagement of Consultant.  Company hereby engages Consultant to render consulting services to Company on a non-exclusive basis and on the terms and for the consideration specified herein. As such, Consultant will familiarize himself to the extent he deems necessary and appropriate with the business, operations, condition (financial and otherwise) and prospects of the Company and will provide eight (8) hours of consulting services per month for twelve (12) months at no cost to the Company.  Any consulting services provided by the Consultant to the Company which exceed eight (8) hours per month shall be billable to the Company at a rate of $150 per hour. To the extent the Consultant provides less than eight (8) hours of consulting services per month (the “Deficit Month”), such deficit of consulting services shall accrue and be provided to the Company by the Consultant in the month immediately following the Deficit Month.
 
ARTICLE II.
 
TERM; TERMINATION
 
Section 2.01   Term. The term of this Agreement shall commence on the date hereof and shall continue until June 14, 2013 (the “Term”).
 
Section 2.02   Termination. Upon termination of this Agreement, except as otherwise provided herein, the Company’s sole responsibility to Consultant shall be to pay Consultant for any unpaid expenses, fees or other consideration earned pursuant to this Agreement.
 
ARTICLE III.
 
COMPENSATION; REIMBURSEMENT
 
Section 3.01   Payments. The Consultant shall provide consulting services to the Company at no cost. Any consulting services provided by the Consultant to the Company which exceed eight (8) hours per month shall be billable to the Company at a rate of $150 per hour.
 
Section 3.02   No Reduction Due to Other Advisors. No fee payable to any other advisor either by Company or any other entity shall reduce or otherwise affect the compensation, fees, payments or reimbursements payable hereunder to the Consultant.
 
 
 

 
 
ARTICLE IV.
 
WORK PRODUCT
 
Consultant shall promptly and fully disclose to Company in writing all Work Products (as defined below), and the entire right, title and interest to all such Work Products (including, without limitation the entire right, title and interest to any renewals, reissues, extensions, substitutions, continuations, continuations in part, or divisions that may be filed with respect to the Work Products) shall be Company’s exclusive property and all Work Products developed by Consultant are hereby assigned to Company. Consultant will, at Company’s expense, give Company all assistance reasonably required to perfect, protect, and use the Work Products. The obligations of Consultant pursuant to this Article IV shall survive for the one (1) year period immediately following termination of this Agreement. As used herein, “Work Product” means any work product, improvement, discovery, design, work or idea (whether patentable or not and including those which may be subject to copyright protection, trademark protection or other intellectual property rights protection) generated, conceived, created or reduced to practice by Consultant alone or in conjunction with others, during or after working hours, that relates directly or indirectly to Company’s or its subsidiaries’ businesses or to Company’s actual research or development.
 
ARTICLE V.
 
ACCURACY OF DISCLOSURE
 
Company agrees to cooperate with Consultant and will furnish to, or cause to be furnished to, Consultant all information and data concerning Company (the “Information”) that Consultant reasonably deems appropriate in connection with the services to Company as provided herein and will provide Consultant with access to Company’s officers, directors, employees and advisors. Company agrees to promptly notify Consultant if Company believes that any Information that was previously provided to Consultant has become materially misleading. Company acknowledges and agrees that in rendering its services hereunder, Consultant will be using and relying on the Information (and information available from public sources and other sources deemed reliable by Consultant) without independent verification thereof or independent appraisal or evaluation of Company. Consultant does not assume responsibility for the accuracy or completeness of the Information. If all or any portion of the business of Company is engaged in through subsidiaries or other affiliates, the references in this paragraph to Company will, when appropriate, be deemed also to include all such subsidiaries or other affiliates.
 
ARTICLE VI.
 
INDEMNIFICATION
 
Consultant agrees to indemnify and hold harmless the Company and its affiliates and their respective directors, officers, managers, attorneys, finders, agents, representatives, advisors, stockholders, members and employees, and each person, if any, who controls the Company within the meaning of the Securities Act of 1933, as amended (the “Securities Act”) and the Exchange Act (collectively, the “Company Indemnified Parties”) in accordance with the provisions for indemnification and contribution set forth in Schedule “A” hereto, which is incorporated by reference in and made a part of this Agreement as if fully set forth herein.
 
 
 

 
 
ARTICLE VII.
 
PUBLICITY
 
With the prior written consent of Company, which shall not be unreasonably withheld, Consultant shall have the right to place advertisements in mailings and financial and other newspapers and journals at its own expense describing its services hereunder to Company and using Company’s logo, slogan, trademark, and/or service mark.
 
ARTICLE VIII.
 
CONFIDENTIALITY; MATERIAL NONPUBLIC INFORMATION
 
Section 8.01    Restrictions on Consultant. Consultant recognizes that its relationship with Company will give it access to non-public proprietary information, confidential information and trade secrets. Consequently, during the Term of this Agreement and for the two (2) year period immediately thereafter, Consultant will not use or disclose for itself or for others (except persons specifically designated by Company) any Confidential Information. “Confidential Information” shall include but not be limited to, any information concerning Company’s processes, products, services, inventions, purchasing, accounting, marketing, selling methods and techniques, research and development, computer programs, purchasing information, ideas and plans for development, historical financial data and forecasts, long range plans and strategies, customer lists, Information and any other information related to Company’s customers, and any such other information concerning the business of Company or its manner of operation that is not generally known in the industry. Confidential Information shall not include any information that: (a) is or subsequently becomes publicly available without Consultant’s breach of this Agreement; (b) was in the Consultant’s possession at the time of disclosure and was not acquired from Company; (c) is received from third parties, and is rightfully in the possession of such third parties and not subject to a confidentiality obligation of third parties; (d) is required by law to be disclosed (with prior notice to Company); or (e) is intentionally disclosed without restriction by Company to a third party.
 
Section 8.02   Third Party Information. Company recognizes that Consultant has received, and in the future may receive, from third parties their confidential or proprietary information subject to a duty on the Consultant’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees at all times during the Term of this Agreement, not to commingle the Confidential Information with other third parties’ confidential or proprietary information.
 
Section 8.03   Surrender of Material upon Termination of Agreement. Upon termination of this Agreement, Consultant shall return immediately to Company all Work Products including, but not limited to, books, records, notes, data and information relating to Company or its business, and will so certify in writing that it has done so.
 
 
 

 
 
ARTICLE IX.
 
MISCELLANEOUS
 
Section 9.01   Notices. Any notices desired, required or permitted to be given hereunder shall be delivered personally or mailed, certified or registered mail, return receipt requested, or delivered by overnight courier service, to the following addresses, or such other addresses as shall be given by notice delivered hereunder, and shall be deemed to have been given upon delivery, if delivered personally, three (3) business days after mailing, if mailed, or one (1) business day after timely delivery to the overnight courier service, if delivered by overnight courier service:
 
(a)   If to the Consultant:
 
Robert Nordin
2400 Fieldcrest Drive
Mundelein, Illinois 60060
Telephone: (847) 894-0279

(b)   If to the Company:
 
SWK Technologies, Inc.
5 Regent Street, Suite 520
Livingston, New Jersey 07039
Telephone: (973) 758-6110
Attention: Jeffrey Roth

or to such other address as such party may indicate by a written notice delivered to the other party hereto.
 
Section 9.02   Attorneys’ Fees. If any party to this Agreement brings an action or proceeding directly or indirectly based upon this Agreement or the matters contemplated hereby against another party, the prevailing party shall be entitled to recover, in addition to any other appropriate amounts, its reasonable costs and expenses in connection with such action or proceeding, including, but not limited to, reasonable attorneys’ fees and court costs.
 
Section 9.03   Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois.
 
(a)   Any judicial proceeding brought with respect to this Agreement by the Stockholders and/or Hightower must be brought in the United States District Court in the State of New Jersey or any court of competent jurisdiction in the State of New Jersey located in Middlesex County. Any judicial proceeding brought with respect to this Agreement by the Buyer must be brought in the United States District Court in the State of Illinois or any court of competent jurisdiction in the State of Illinois located in Cook County; and, each Party: (i) accepts unconditionally, the exclusive jurisdiction of such courts and any related appellate court, and agrees to be bound by any final, non-appealable judgment rendered thereby in connection with this Agreement; and (ii) irrevocably waives any objection it may now or hereafter have as to the venue of any such suit, action or proceeding brought in such a court or that such court is an inconvenient forum; provided , however , that such consent to jurisdiction is solely for the purpose referred to in this Section and shall not be deemed to be a general submission to the jurisdiction of said Courts or the State of Illinois or New Jersey other than for such purpose.
 
 
 

 
 
(b)   THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT.
 
Section 9.04   Entire Agreement. This Agreement sets forth the entire understanding of the parties relating to the subject matter hereof, and supersedes and cancels any prior communications, understandings and agreements between the parties with respect to the subject matter contemplated herein.
 
Section 9.05   Amendment; Waiver. This Agreement may not be amended or modified except by a writing executed by both of the parties hereto. The waiver by any party hereto of any breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder.
 
Section 9.06   Assignability. Neither party to this Agreement may assign its rights and obligations under this Agreement without the prior written consent of the other party.
 
Section 9.07   Binding Effect. This Agreement and any amendment thereto, shall be binding upon and shall inure to the benefit of the successors and assignees of the parties hereto.
 
Section 9.08   Relationship. Nothing in this Agreement shall be interpreted to provide that Consultant and Company are partners, joint venturers, agents or assignees of the other. Consultant is and shall remain an independent contractor providing services to Company, and is not an employee or agent of Company, and neither party shall be entitled to bind the other party in any way.
 
Section 9.09   Headings. The section headings herein are intended for reference and shall not by themselves determine the construction or interpretation of this Agreement.
 
Section 9.10   Severability. Should a court or other body of competent jurisdiction determine that any provision in this Agreement is invalid or unenforceable, the remaining provisions in this Agreement nevertheless shall be deemed valid and enforceable, and continue in full force and effect without being impaired or invalidated in any way.
 
Section 9.11   Further Assurances. The parties shall execute, acknowledge and deliver any further documents, instruments, or other assurances and shall take any other action consistent with the terms of this Agreement that may be reasonably requested by any other party or its counsel for the purpose of confirming or effectuating any of the actions contemplated by this Agreement.
 
Section 9.12   Remedies Cumulative. Any termination of this Agreement shall be without prejudice to any right or remedy to which a party may be entitled either by law, or in equity, or under this Agreement.
 
 
 

 
 
Section 9.13   Survival. Notwithstanding any termination of this Agreement, Section 2.02 and Articles III, IV, VI, VIII and this Article X shall survive and remain in full force and effect.
 
Section 9.14   Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same Agreement.
 
 
[Signature Page Follows]
 
 
 

 
 
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.
 
 
SWK TECHNOLOGIES, INC.


By:_______________________________
     Name: Jeffrey Roth
     Title: Chief Executive Officer





By:_______________________________
     Name: Robert Nordin
     Title: Consultant

 

 

 
[Signature Page to Consulting Agreement]
 
 
 

 

SCHEDULE A
 
Indemnification and Contribution
 
Consultant shall indemnify and hold harmless the Company and each of its controlling persons, subsidiaries, affiliates, directors, officers, and employees (“Indemnified Persons”), from and against all losses, claims, damages and liabilities, and all suits, actions, claims, proceedings and investigations in respect thereof, relating to or arising out of the activities contemplated by Consultant’s engagement described in the Consulting Agreement to which this Schedule “A” is attached. The foregoing shall include the reasonable expenses incurred by the Company and Indemnified Persons in appearing as witnesses or being deposed, producing documents or otherwise being involved in any suits, actions, proceedings or investigations. Consultant shall reimburse the Company and each Indemnified Person for all reasonable expenses, including attorneys’ fees and disbursements, as they are incurred in connection with investigating, preparing for or defending any suit, action, proceeding or investigation, whether or not the Company or such Indemnified Person shall be a party thereto, whether or not the same shall involve or result in any liability on the part of the Company or such Indemnified Person; provided that Consultant shall advance such expenses only upon receipt of an undertaking by the Company or such person to repay such advances if it shall ultimately be determined that the Company or such person was not entitled to be indemnified. Notwithstanding the forgoing, Consultant shall not, however, be obligated to indemnify the Company or any Indemnified Person in respect of any loss, claim, damage, liability or expense to the extent the same is found by a final judgment of a court of competent jurisdiction to have resulted from gross negligence, willful misconduct or bad faith on the part of the Company or such Indemnified Person. The Company shall have no liability to Consultant for any loss, claim, damage, liability or expense related to or arising out of the activities contemplated by Consultant’s engagement, except to the extent such loss, claim, damage, liability or expense is found by a final judgment of a court of competent jurisdiction to have resulted from gross negligence, willful misconduct or bad faith on the part of the Company.
 
 If any suit, action, claim, proceeding or investigation is instituted against the Company or any Indemnified Person aforesaid in respect of which indemnification may be sought hereunder, the Company or such person shall promptly notify Consultant thereof in writing, but the omission so to notify Consultant shall not relieve Consultant from any liability except to the extent Consultant shall have been materially prejudiced by such omission. Neither the Company nor any Indemnified Person shall be required to provide notice to Consultant with respect to any suit, action or proceeding in which Consultant is named a defendant. The Consultant shall be entitled to assume the defense of any suit, action or proceeding with counsel reasonably satisfactory to the Company; provided, however, that if the defendants in any such suit, action or proceeding include both the Company or an Indemnified Person and Consultant or another indemnified person, and counsel for the Company or such Indemnified Person shall have advised in writing that a conflict or potential conflict exists between the Company or such Indemnified Person and Consultant or another indemnified person, or that there may be one or more legal defenses available to the Company or an Indemnified Person that are different from or additional to those available to Consultant or another indemnified person, then Consultant shall not have the right to assume the defense of such suit, action or proceeding on behalf of the Company or such Indemnified Person, and the Company and such Indemnified Person shall have the right to select separate counsel to defend such suit, action or proceeding on its behalf, with costs to be borne by the Consultant. Subject to the foregoing, the Consultant shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) for the Company and all Indemnified Persons similarly situated in any one suit, action or proceeding or substantially similar suits, actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Consultant shall not be liable for the settlement of any suit, action, claim or proceeding by the Company or any Indemnified Person without Consultant’s prior written consent. The Consultant agrees that it shall not settle any suit, action, claim or proceeding relating to or arising out of the activities contemplated by Consultant’s engagement, unless such settlement includes a provision unconditionally releasing the Company and each Indemnified Person from all liabilities in respect of the matters which are the subject of such suit, action claim or proceeding. The provisions hereof are in addition to all other existing rights to indemnification on the part of the Company and each Indemnified Person aforesaid, and shall survive any termination of the Consultant’s engagement hereunder.
 
 
 

 
 
In order to provide for just and equitable contribution, if a claim for indemnification hereunder is made, but it is found in a final judgment of a court of competent jurisdiction that such indemnification may not be enforced in such case, even though the express provisions hereof provide for indemnification in such case, then Consultant, on the one hand, and the Company, on the other hand, shall contribute to the amounts paid, payable or suffered in respect of the losses, claims, damages, liabilities or expenses for which indemnification is unavailable or insufficient (i) in such proportion as appropriately reflects the relative benefits to Consultant, on the one hand, and the Company, on the other hand, from the transaction contemplated by Consultant’s engagement hereunder, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as appropriately reflects not only the relative benefits referred to in clause (i), but also the relative faults of Consultant, on the one hand, and the Company, on the other hand, in connection with the statements, acts or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. It is agreed that it would not be just or equitable if the contribution provided for herein were determined by pro rata allocation or any other method which does not take into account the foregoing. The relative benefits to Company and Consultant shall be deemed to be in the proportion which (A) the total amount to be paid by Company from the transaction contemplated by Consultant’s engagement (whether or not consummated), bears to (B) the fees actually received by Consultant for its engagement (excluding any amounts received in reimbursement of expenses). In no event shall Consultant’s share of any liability be in excess of the fees actually received by Consultant for its engagement (excluding any amounts received in reimbursement of expenses).
 

 

 

 
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Exhibit 10.2
 
CONSULTING AGREEMENT
 
This Consulting Agreement (this “Agreement”) is made as of June 14, 2012, by and between SWK Technologies, Inc., a corporation incorporated under the laws of the State of Delaware, located at 5 Regent Street, Suite 520, Livingston, New Jersey 07039 (the “Company”), and Jeffrey Rosengarden, an individual, located at 2616 Harrison Street, Glenview, Illinois 60025 (the “Consultant”). In consideration of the respective covenants, representations, warranties and agreements contained in this Agreement and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows:
 
ARTICLE I.
 
ENGAGEMENT OF CONSULTANT
 
Section 1.01   Engagement of Consultant.  Company hereby engages Consultant to render consulting services to Company on a non-exclusive basis and on the terms and for the consideration specified herein. As such, Consultant will familiarize himself to the extent he deems necessary and appropriate with the business, operations, condition (financial and otherwise) and prospects of the Company and will provide consulting services from time to time.
 
ARTICLE II.
 
TERM; TERMINATION
 
Section 2.01   Term. The term of this Agreement shall commence on the date hereof and shall continue until June 14, 2015 (the “Term”).
 
Section 2.02   Termination. Upon termination of this Agreement, except as otherwise provided herein, the Company’s sole responsibility to Consultant shall be to pay Consultant for any unpaid expenses, fees or other consideration earned pursuant to this Agreement.
 
ARTICLE III.
 
COMPENSATION; REIMBURSEMENT
 
Section 3.01   Payments. The Company shall pay the Consultant one thousand eight hundred fifty United States dollars (US$1,850) per month for the Term.
 
Section 3.02   No Reduction Due to Other Advisors. No fee payable to any other advisor either by Company or any other entity shall reduce or otherwise affect the compensation, fees, payments or reimbursements payable hereunder to the Consultant.
 
ARTICLE IV.
 
WORK PRODUCT
 
Consultant shall promptly and fully disclose to Company in writing all Work Products (as defined below), and the entire right, title and interest to all such Work Products (including, without limitation the entire right, title and interest to any renewals, reissues, extensions, substitutions, continuations, continuations in part, or divisions that may be filed with respect to the Work Products) shall be Company’s exclusive property and all Work Products developed by Consultant are hereby assigned to Company. Consultant will, at Company’s expense, give Company all assistance reasonably required to perfect, protect, and use the Work Products. The obligations of Consultant pursuant to this Article IV shall survive for the one (1) year period immediately following termination of this Agreement. As used herein, “Work Product” means any work product, improvement, discovery, design, work or idea (whether patentable or not and including those which may be subject to copyright protection, trademark protection or other intellectual property rights protection) generated, conceived, created or reduced to practice by Consultant alone or in conjunction with others, during or after working hours, that relates directly or indirectly to Company’s or its subsidiaries’ businesses or to Company’s actual research or development.
 
 
 

 
 
ARTICLE V.
 
ACCURACY OF DISCLOSURE
 
Company agrees to cooperate with Consultant and will furnish to, or cause to be furnished to, Consultant all information and data concerning Company (the “Information”) that Consultant reasonably deems appropriate in connection with the services to Company as provided herein and will provide Consultant with access to Company’s officers, directors, employees and advisors. Company agrees to promptly notify Consultant if Company believes that any Information that was previously provided to Consultant has become materially misleading. Company acknowledges and agrees that in rendering its services hereunder, Consultant will be using and relying on the Information (and information available from public sources and other sources deemed reliable by Consultant) without independent verification thereof or independent appraisal or evaluation of Company. Consultant does not assume responsibility for the accuracy or completeness of the Information. If all or any portion of the business of Company is engaged in through subsidiaries or other affiliates, the references in this paragraph to Company will, when appropriate, be deemed also to include all such subsidiaries or other affiliates.
 
ARTICLE VI.
 
INDEMNIFICATION
 
Consultant agrees to indemnify and hold harmless the Company and its affiliates and their respective directors, officers, managers, attorneys, finders, agents, representatives, advisors, stockholders, members and employees, and each person, if any, who controls the Company within the meaning of the Securities Act of 1933, as amended (the “Securities Act”) and the Exchange Act (collectively, the “Company Indemnified Parties”) in accordance with the provisions for indemnification and contribution set forth in Schedule “A” hereto, which is incorporated by reference in and made a part of this Agreement as if fully set forth herein.
 
ARTICLE VII.
 
PUBLICITY
 
With the prior written consent of Company, which shall not be unreasonably withheld, Consultant shall have the right to place advertisements in mailings and financial and other newspapers and journals at its own expense describing its services hereunder to Company and using Company’s logo, slogan, trademark, and/or service mark.
 
 
 

 
 
ARTICLE VIII.
 
CONFIDENTIALITY; MATERIAL NONPUBLIC INFORMATION
 
Section 8.01    Restrictions on Consultant. Consultant recognizes that its relationship with Company will give it access to non-public proprietary information, confidential information and trade secrets. Consequently, during the Term of this Agreement and for the two (2) year period immediately thereafter, Consultant will not use or disclose for itself or for others (except persons specifically designated by Company) any Confidential Information. “Confidential Information” shall include but not be limited to, any information concerning Company’s processes, products, services, inventions, purchasing, accounting, marketing, selling methods and techniques, research and development, computer programs, purchasing information, ideas and plans for development, historical financial data and forecasts, long range plans and strategies, customer lists, Information and any other information related to Company’s customers, and any such other information concerning the business of Company or its manner of operation that is not generally known in the industry. Confidential Information shall not include any information that: (a) is or subsequently becomes publicly available without Consultant’s breach of this Agreement; (b) was in the Consultant’s possession at the time of disclosure and was not acquired from Company; (c) is received from third parties, and is rightfully in the possession of such third parties and not subject to a confidentiality obligation of third parties; (d) is required by law to be disclosed (with prior notice to Company); or (e) is intentionally disclosed without restriction by Company to a third party.
 
Section 8.02   Third Party Information. Company recognizes that Consultant has received, and in the future may receive, from third parties their confidential or proprietary information subject to a duty on the Consultant’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Consultant agrees at all times during the Term of this Agreement, not to commingle the Confidential Information with other third parties’ confidential or proprietary information.
 
Section 8.03   Surrender of Material upon Termination of Agreement. Upon termination of this Agreement, Consultant shall return immediately to Company all Work Products including, but not limited to, books, records, notes, data and information relating to Company or its business, and will so certify in writing that it has done so.
 
 
 

 
 
ARTICLE IX.
 
MISCELLANEOUS
 
Section 9.01   Notices. Any notices desired, required or permitted to be given hereunder shall be delivered personally or mailed, certified or registered mail, return receipt requested, or delivered by overnight courier service, to the following addresses, or such other addresses as shall be given by notice delivered hereunder, and shall be deemed to have been given upon delivery, if delivered personally, three (3) business days after mailing, if mailed, or one (1) business day after timely delivery to the overnight courier service, if delivered by overnight courier service:
 

 
(a)   If to the Consultant:
 
Jeffrey Rosengarden
2616 Harrison Street
Glenview, Illinois 60025
Telephone: (847) 302-2616

(b)   If to the Company:
 
SWK Technologies, Inc.
5 Regent Street, Suite 520
Livingston, New Jersey 07039
Telephone: (973) 758-6110
Attention: Jeffrey Roth

or to such other address as such party may indicate by a written notice delivered to the other party hereto.
 
 
Section 9.02   Attorneys’ Fees. If any party to this Agreement brings an action or proceeding directly or indirectly based upon this Agreement or the matters contemplated hereby against another party, the prevailing party shall be entitled to recover, in addition to any other appropriate amounts, its reasonable costs and expenses in connection with such action or proceeding, including, but not limited to, reasonable attorneys’ fees and court costs.
 
Section 9.03   Governing Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Illinois.
 
(a)   Any judicial proceeding brought with respect to this Agreement by the Stockholders and/or Hightower must be brought in the United States District Court in the State of New Jersey or any court of competent jurisdiction in the State of New Jersey located in Middlesex County. Any judicial proceeding brought with respect to this Agreement by the Buyer must be brought in the United States District Court in the State of Illinois or any court of competent jurisdiction in the State of Illinois located in Cook County; and, each Party: (i) accepts unconditionally, the exclusive jurisdiction of such courts and any related appellate court, and agrees to be bound by any final, non-appealable judgment rendered thereby in connection with this Agreement; and (ii) irrevocably waives any objection it may now or hereafter have as to the venue of any such suit, action or proceeding brought in such a court or that such court is an inconvenient forum; provided , however , that such consent to jurisdiction is solely for the purpose referred to in this Section and shall not be deemed to be a general submission to the jurisdiction of said Courts or the State of Illinois or New Jersey other than for such purpose.
 
(b)   THE PARTIES HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF, RELATED TO OR IN CONNECTION WITH THIS AGREEMENT.
 
 
 

 
 
Section 9.04   Entire Agreement. This Agreement sets forth the entire understanding of the parties relating to the subject matter hereof, and supersedes and cancels any prior communications, understandings and agreements between the parties with respect to the subject matter contemplated herein.
 
Section 9.05   Amendment; Waiver. This Agreement may not be amended or modified except by a writing executed by both of the parties hereto. The waiver by any party hereto of any breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder.
 
Section 9.06   Assignability. Neither party to this Agreement may assign its rights and obligations under this Agreement without the prior written consent of the other party.
 
Section 9.07   Binding Effect. This Agreement and any amendment thereto, shall be binding upon and shall inure to the benefit of the successors and assignees of the parties hereto.
 
Section 9.08   Relationship. Nothing in this Agreement shall be interpreted to provide that Consultant and Company are partners, joint venturers, agents or assignees of the other. Consultant is and shall remain an independent contractor providing services to Company, and is not an employee or agent of Company, and neither party shall be entitled to bind the other party in any way.
 
Section 9.09   Headings. The section headings herein are intended for reference and shall not by themselves determine the construction or interpretation of this Agreement.
 
Section 9.10   Severability. Should a court or other body of competent jurisdiction determine that any provision in this Agreement is invalid or unenforceable, the remaining provisions in this Agreement nevertheless shall be deemed valid and enforceable, and continue in full force and effect without being impaired or invalidated in any way.
 
Section 9.11   Further Assurances. The parties shall execute, acknowledge and deliver any further documents, instruments, or other assurances and shall take any other action consistent with the terms of this Agreement that may be reasonably requested by any other party or its counsel for the purpose of confirming or effectuating any of the actions contemplated by this Agreement.
 
Section 9.12   Remedies Cumulative. Any termination of this Agreement shall be without prejudice to any right or remedy to which a party may be entitled either by law, or in equity, or under this Agreement.
 
Section 9.13   Survival. Notwithstanding any termination of this Agreement, Section 2.02 and Articles III, IV, VI, VIII and this Article X shall survive and remain in full force and effect.
 
Section 9.14   Counterparts. This Agreement may be executed in one or more counterparts, all of which taken together shall constitute one and the same Agreement.
 
 
[Signature Page Follows]
 
 
 

 
 
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first set forth above.
 
 
 
SWK TECHNOLOGIES, INC.


By:_______________________________
     Name: Jeffrey Roth
     Title: Chief Executive Officer





By:_______________________________
     Name: Jeffrey Rosengarden
     Title: Consultant

 

 
[Signature Page to Consulting Agreement]
 
 
 

 
 
SCHEDULE A
 
Indemnification and Contribution
 
Consultant shall indemnify and hold harmless the Company and each of its controlling persons, subsidiaries, affiliates, directors, officers, and employees (“Indemnified Persons”), from and against all losses, claims, damages and liabilities, and all suits, actions, claims, proceedings and investigations in respect thereof, relating to or arising out of the activities contemplated by Consultant’s engagement described in the Consulting Agreement to which this Schedule “A” is attached. The foregoing shall include the reasonable expenses incurred by the Company and Indemnified Persons in appearing as witnesses or being deposed, producing documents or otherwise being involved in any suits, actions, proceedings or investigations. Consultant shall reimburse the Company and each Indemnified Person for all reasonable expenses, including attorneys’ fees and disbursements, as they are incurred in connection with investigating, preparing for or defending any suit, action, proceeding or investigation, whether or not the Company or such Indemnified Person shall be a party thereto, whether or not the same shall involve or result in any liability on the part of the Company or such Indemnified Person; provided that Consultant shall advance such expenses only upon receipt of an undertaking by the Company or such person to repay such advances if it shall ultimately be determined that the Company or such person was not entitled to be indemnified. Notwithstanding the forgoing, Consultant shall not, however, be obligated to indemnify the Company or any Indemnified Person in respect of any loss, claim, damage, liability or expense to the extent the same is found by a final judgment of a court of competent jurisdiction to have resulted from gross negligence, willful misconduct or bad faith on the part of the Company or such Indemnified Person. The Company shall have no liability to Consultant for any loss, claim, damage, liability or expense related to or arising out of the activities contemplated by Consultant’s engagement, except to the extent such loss, claim, damage, liability or expense is found by a final judgment of a court of competent jurisdiction to have resulted from gross negligence, willful misconduct or bad faith on the part of the Company.
 
 If any suit, action, claim, proceeding or investigation is instituted against the Company or any Indemnified Person aforesaid in respect of which indemnification may be sought hereunder, the Company or such person shall promptly notify Consultant thereof in writing, but the omission so to notify Consultant shall not relieve Consultant from any liability except to the extent Consultant shall have been materially prejudiced by such omission. Neither the Company nor any Indemnified Person shall be required to provide notice to Consultant with respect to any suit, action or proceeding in which Consultant is named a defendant. The Consultant shall be entitled to assume the defense of any suit, action or proceeding with counsel reasonably satisfactory to the Company; provided, however, that if the defendants in any such suit, action or proceeding include both the Company or an Indemnified Person and Consultant or another indemnified person, and counsel for the Company or such Indemnified Person shall have advised in writing that a conflict or potential conflict exists between the Company or such Indemnified Person and Consultant or another indemnified person, or that there may be one or more legal defenses available to the Company or an Indemnified Person that are different from or additional to those available to Consultant or another indemnified person, then Consultant shall not have the right to assume the defense of such suit, action or proceeding on behalf of the Company or such Indemnified Person, and the Company and such Indemnified Person shall have the right to select separate counsel to defend such suit, action or proceeding on its behalf, with costs to be borne by the Consultant. Subject to the foregoing, the Consultant shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) for the Company and all Indemnified Persons similarly situated in any one suit, action or proceeding or substantially similar suits, actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances. Consultant shall not be liable for the settlement of any suit, action, claim or proceeding by the Company or any Indemnified Person without Consultant’s prior written consent. The Consultant agrees that it shall not settle any suit, action, claim or proceeding relating to or arising out of the activities contemplated by Consultant’s engagement, unless such settlement includes a provision unconditionally releasing the Company and each Indemnified Person from all liabilities in respect of the matters which are the subject of such suit, action claim or proceeding. The provisions hereof are in addition to all other existing rights to indemnification on the part of the Company and each Indemnified Person aforesaid, and shall survive any termination of the Consultant’s engagement hereunder.
 
 
 

 
 
In order to provide for just and equitable contribution, if a claim for indemnification hereunder is made, but it is found in a final judgment of a court of competent jurisdiction that such indemnification may not be enforced in such case, even though the express provisions hereof provide for indemnification in such case, then Consultant, on the one hand, and the Company, on the other hand, shall contribute to the amounts paid, payable or suffered in respect of the losses, claims, damages, liabilities or expenses for which indemnification is unavailable or insufficient (i) in such proportion as appropriately reflects the relative benefits to Consultant, on the one hand, and the Company, on the other hand, from the transaction contemplated by Consultant’s engagement hereunder, or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as appropriately reflects not only the relative benefits referred to in clause (i), but also the relative faults of Consultant, on the one hand, and the Company, on the other hand, in connection with the statements, acts or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. It is agreed that it would not be just or equitable if the contribution provided for herein were determined by pro rata allocation or any other method which does not take into account the foregoing. The relative benefits to Company and Consultant shall be deemed to be in the proportion which (A) the total amount to be paid by Company from the transaction contemplated by Consultant’s engagement (whether or not consummated), bears to (B) the fees actually received by Consultant for its engagement (excluding any amounts received in reimbursement of expenses). In no event shall Consultant’s share of any liability be in excess of the fees actually received by Consultant for its engagement (excluding any amounts received in reimbursement of expenses).
 
 

 
 
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Exhibit 99.1
 
    FOR MORE INFORMATION:
PLEASE CALL HANOVER+ELITE
Dodi Handy or Kathy Addison
Phone: 407-585-1080
Email: SSNT@efcg.net
 
SILVERSUN TECHNOLOGIES COMPLETES ASSET PURCHASE
OF CHICAGO-BASED HIGHTOWER
 
  Acquisition Wins SilverSun Approximately $3 Million in Additional Annual Revenue, Proprietary Business Management Software Solutions and a Strong Market Presence in the Midwestern U.S.

LIVINGSTON, NJ – (Marketwire) – June 18, 2012 – SilverSun Technologies, Inc .  (OTCBB/OTCQB: SSNT), a preferred source for best-of-breed mid-market software applications and expert professional consulting services, today announced that the Company has completed the asset purchase of HighTower, Inc.,  a leading Chicago-based reseller of Sage software applications and a publisher of proprietary business management software enhancements.  With the closing of this transaction, Hightower’s customers and business products and services will be integrated into the infrastructure of SWK Technologies, SilverSun’s principal operating subsidiary.  Since late March and in anticipation of this asset purchase, SWK has provided technical support and a variety of consulting services to all Hightower clients and to the many Sage business partners who support their ERP enhancements.

“We are very pleased to have completed the purchase of Hightower,” said Mark Meller, CEO of SilverSun Technologies. “Among other strategic benefits, this brings SilverSun and SWK approximately $3 million in additional annual revenues (based upon 2011 results), approximately 870 additional Sage ERP customers, an impressive suite of proprietary enhancement software solutions (with approximately 700 users) and a much deeper market penetration in the Midwest.  Moreover, we look forward to leveraging Hightower’s established network of independent resellers to further expand distribution of SWK’s proprietary software solutions, and vice versa.  This acquisition marks an important milestone for SilverSun, and one that should have notable impact on our revenue and earnings growth in 2012 and well beyond.”

Since 1987, Hightower has been a software industry leader that has supplied integrated technology systems and mid-market solutions for businesses across the country. In addition, it has been engaged in developing proprietary software, bringing to market a robust suite of enhancement products which effectively integrate with and complement Sage 100 ERP solutions.  For the past seven years, Hightower has been ranked as a “Top 100 Value Added Reseller” by Accounting Today magazine; and for the last eight consecutive years, the publication has awarded the Company its Technology Pacesetter Award.

The cash-only acquisition of select Hightower assets was funded by SilverSun’s existing financing facilities on a non-dilutive basis to existing shareholders.  For additional details relating to the transaction, please refer to the 8-K filed by SilverSun with the U.S. Securities and Exchange Commission.

About SilverSun Technologies, Inc.
Headquartered in Livingston, New Jersey, SilverSun Technologies is involved in the acquisition and build-out of technology and software companies engaged in providing best of breed management applications and professional consulting services to small and medium size businesses (SMBs) in the manufacturing, distribution and service industries.  Serving as SilverSun’s principal operating subsidiary, SWK Technologies, Inc. is an award-winning company that employs a national direct sales and consulting team currently serving a growing customer base spanning 38 U.S. states and Canada.  For more information, please visit www.silversuntech.com , www.swktech.com or www.mapadoc.com .

Forward-Looking Statements
This press release may contain forward-looking statements, including information about management's view of SilverSun Technologies’ future expectations, plans and prospects. In particular, when used in the preceding discussion, the words "believes," "expects," "intends," "plans," "anticipates," or "may," and similar conditional expressions are intended to identify forward-looking statements. Any statements made in this news release other than those of historical fact, about an action, event or development, are forward-looking statements. These statements involve known and unknown risks, uncertainties and other factors, which may cause the results of SilverSun Technologies, its subsidiaries and concepts to be materially different than those expressed or implied in such statements. Unknown or unpredictable factors also could have material adverse effects on SilverSun Technologies’ future results. The forward-looking statements included in this press release are made only as of the date hereof.  SilverSun Technologies cannot guarantee future results, levels of activity, performance or achievements. Accordingly, you should not place undue reliance on these forward-looking statements. Finally, SilverSun Technologies undertakes no obligation to update these statements after the date of this release, except as required by law, and also takes no obligation to update or correct information prepared by third parties that are not paid for by SilverSun Technologies.