-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, DGfRvBvUsSCEzSwMjaApsZxmSwH/ez5+KCIEc1yS3QeW7iAmoR1Ok3SBDk4cU+iv actoGr4NmhDZeM22ZE39qA== 0000950115-98-000621.txt : 19980401 0000950115-98-000621.hdr.sgml : 19980401 ACCESSION NUMBER: 0000950115-98-000621 CONFORMED SUBMISSION TYPE: 10-K405 PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 19971231 FILED AS OF DATE: 19980331 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: IMAGEMAX INC CENTRAL INDEX KEY: 0001046032 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-BUSINESS SERVICES, NEC [7389] IRS NUMBER: 232865585 STATE OF INCORPORATION: PA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K405 SEC ACT: SEC FILE NUMBER: 000-23077 FILM NUMBER: 98584054 BUSINESS ADDRESS: STREET 1: TWO BALA PLAZA STREET 2: STE 300 CITY: BALA CYNWYD STATE: PA ZIP: 19004 BUSINESS PHONE: 6106607754 MAIL ADDRESS: STREET 1: TWO BALA PLAZA STREET 2: STE 300 CITY: BALA CYNWYD STATE: PA ZIP: 19004 10-K405 1 ANNUAL REPORT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 -------------------- FORM 10-K (Mark One) [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED] For the Fiscal Year Ended December 31, 1997 [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED] For the Transition Period From _________ to _________ Commission File Number 0-23077 -------- IMAGEMAX, INC. ----------------------------------------------------- (Exact name of Registrant as specified in its charter) -------------------- Pennsylvania 23-2865585 ------------------------------- ------------------ (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification no.) 1100 E. Hector Street, Suite 396 Conshohocken, Pennsylvania 19428 - ---------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code: (610) 832-2111 ---------------- -------------------- Securities registered pursuant to Section 12(b) of the Act: None Securities registered pursuant to Section 12(g) of the Act: Common Stock, no par value per share (Title of class) Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No -- --- Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of Registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X] The aggregate market value of the voting stock held by non-affiliates of the Registrant was $25,201,179 as of March 23, 1998. On March 23, 1998 the Registrant had outstanding 5,552,755 shares of Common Stock, no par value. DOCUMENTS INCORPORATED BY REFERENCE Portions of the Registrant's definitive proxy statement (the "Definitive Proxy Statement") to be filed with the Securities and Exchange Commission relative to the Company's 1998 Annual Meeting of Shareholders are incorporated by reference into Part III of this Annual Report on Form 10-K. TABLE OF CONTENTS Item Page - ---- ---- PART I .....................................................................1 ITEM 1. BUSINESS.................................................1 ITEM 2. PROPERTIES..............................................16 ITEM 3. LEGAL PROCEEDINGS.......................................17 ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.....17 ITEM 4(a). EXECUTIVE OFFICERS OF THE REGISTRANT....................17 PART II ....................................................................19 ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER MATTERS.............................19 ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA....................22 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS ..........23 ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA ............29 ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE..................29 PART III ....................................................................29 ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF REGISTRANT..........29 ITEM 11. EXECUTIVE COMPENSATION..................................29 ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT..........................................30 ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS..........30 PART IV ....................................................................30 ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.....................................30 PART I ITEM 1. BUSINESS ImageMax, Inc. was founded in November 1996 to become a leading national, single-source provider of integrated document management solutions. On December 4, 1997, ImageMax completed its initial public offering (the "Offering") of 3,100,000 shares of Common Stock, no par value per share (the "Common Stock"), which generated net proceeds to ImageMax of approximately $30.5 million. Concurrently with the Offering, the Company began material operations with the acquisition of 14 document management service companies (the "Founding Companies"). Unless otherwise indicated, all references to "ImageMax" shall mean ImageMax, Inc. prior to the acquisitions of the Founding Companies and all references to the "Company" and its business include the activities of the Founding Companies. The Founding Companies consist of: Utz Medical Enterprises, Inc., the parent of American Micro-Med Corporation ("AMMCORP"); CodaLex Microfilming Corporation ("CMC"), Imaging Information Industries, Inc. ("I(3)" and, collectively with CMC, "CodaLex"); Laser Graphics Systems and Services, Inc. ("Laser Graphics" and, collectively with CodaLex, the "CodaLex Group"); DataLink Corporation ("DataLink"); DocuTech, Inc. ("DTI") and DocuTech Data Systems, Inc. ("DDS") (collectively, "DocuTech"); Image & Information Solutions ("I(2) Solutions"); Image Memory Systems, Inc. ("IMS"); International Data Services of New York, Inc. ("IDS"); Oregon Micro-Imaging, Inc. ("OMI"); Semco Industries, Inc. ("Spaulding"); Total Information Management Corporation ("TIMCO"); and TPS Micrographics, Inc. ("TPS"). Certain information regarding each of the Founding Companies is summarized below: AMMCORP (Chesterton, Indiana, near Chicago) is a provider of microfilm, scanning and record storage and retrieval services primarily to health care providers in the Chicago metropolitan area, northern Indiana, southern Michigan and western Ohio. As a medical records specialist, AMMCORP offers 24-hour, 365-day physically staffed retrieval. The Codalex Group is comprised of three micrographic and digital imaging service businesses under common control, CMC (Cayce, South Carolina near Columbia), Laser Graphics (Cleveland, Tennessee, near Chattanooga) and I(3) (Marietta, Georgia, near Atlanta). The CodaLex Group primarily serves the health care and financial services markets in the southeastern U.S. and is a Kodak imaging equipment broker-dealer in all three locations. I(3) was started in 1995 to focus on digital imaging and is a Canon dealer. Datalink (Tempe, Arizona) was formed in 1984 as a computer-output-to-microfiche ("COM") specialist serving the Phoenix metropolitan area. DataLink also offers micrographic and digital imaging services and systems. DocuTech (Lincoln, Nebraska) includes the businesses of DTI, a micrographic and digital imaging service business, and DDS, a provider of open-architecture document scanning software products. DTI primarily serves the health care and financial services markets in Nebraska. DDS markets its DocuROM(TM), FileTRAX(TM), ScanTRAX(TM) and other scanning and digital image management software nationally to both end-users and other document management businesses, including six of the Founding Companies. DDS has more than 70 other document management businesses acting as value-added resellers of its software products. DTI is a Canon dealer in Nebraska. I(2) Solutions (Monroe, Louisiana) is a provider of micrographic, digital imaging, digital data storage and graphic design services primarily to hospitals, state and local government agencies, engineering and general commercial clients from its Monroe facilities. I(2) Solutions also operates a retail store at its Monroe location, 1 which produces litigation exhibits and architectural and engineering prints and sells engineering, drafting and related supplies. I(2) Solutions is a Kodak dealer in Louisiana, Texas and Mississippi, a Minolta dealer in Louisiana, Texas and Arkansas and an OCE dealer in Louisiana and Texas and provides service and repair support to its equipment customers. IMS (Dayton, Ohio) provides micrographic and digital imaging services specializing in large-format documents (primarily engineering drawings) to a national client base of manufacturing businesses. IMS is a Photomatrix dealer. IDS (Millwood, New York, near New York City) is a provider of offshore data entry services supporting forms processing as well as the indexing of both microfilmed and digitally-imaged records. IDS also performs litigation support. IDS serves end-users and document management companies nationally. OMI (Eugene, Oregon) provides micrographics and digital imaging products and services primarily to health care providers, financial institutions and government agencies in Oregon and Washington from its Eugene facility and a branch office in Portland, Oregon. OMI is a certified dealer of Canon micrographic and digital imaging equipment in Oregon, and provides service and repair support to its equipment customers. Spaulding (Stoughton, Massachusetts, near Boston) provides both small-format and large-format document filming and digital imaging services and equipment sales and related maintenance service to a variety of commercial, non-profit and government clients in the New England region. Spaulding has a branch office in Worcester, Massachusetts. Spaulding is a Minolta dealer for micrographics and hybrid micrographic systems equipment in Maine, Massachusetts, New Hampshire and Vermont, a Xerox dealer for large-format scanners, plotters, and digital imaging equipment in New England and eastern New York and a Fujitsu scanning equipment systems dealer throughout the Northeast. Spaulding also acts as a nationwide value added reseller of specialized software and hardware for Adobe Systems Incorporated, Computervision Corporation, CDP Communications, Inc., Cadnet Corporation and Westbrook Technologies, Inc. TIMCO (Emeryville, California, near San Francisco) provides micrographics, digital imaging and record storage and retrieval services primarily to financial services and government clients in northern California. TIMCO maintains a branch office in Sacramento, California. TPS (Forest, Virginia, near Lynchburg) provides micrographic and digital imaging services to general commercial, health care, financial institutions and government entities in Virginia. TPS also sells and services Canon micrographic and digital imaging equipment. TPS maintains a branch office in Richmond, Virginia. Prior to the Offering, ImageMax did not conduct any material operations. The Company operates in 13 states, employs nearly 1,000 people and provides services and products to over 5,000 clients from 18 locations. The Company intends to continue to selectively acquire document management companies in order to increase geographic coverage and market share, expand service and product capabilities and generate economies of scale in regional and national markets. The Company's strategy is to work with clients to develop the best solution to their document management needs, including solutions involving both outsourced and in-house document capture, conversion, storage and retrieval. The majority of current document management industry revenue is derived from the management of film and paper media. However, advances in digital and other technologies continue to provide organizations with increasing document management options. As a result, the Company believes the most successful service providers will be those that can offer a complete spectrum of document management services 2 and products encompassing solution design and expertise in the management of digital, film and paper media. Accordingly, the Company initially targeted a broad variety of services and products, as well as technical and vertical market expertise, in order to create a platform from which it can become a leading national, single-source option for clients with intensive document management needs. The Company's services include document management consulting and systems integration, media conversion (consisting of electronic imaging and micrographics), data indexing and offshore data entry, information storage and retrieval, and document management system maintenance. The Company's products include proprietary, open-architecture digital imaging and indexing software, as well as document management systems and supplies. Market and Industry Overview Document management businesses provide services and products to capture, convert, index, store and retrieve documents, whether such documents exist on paper, microfilm or digital media. Based on information made publicly available by the Association for Information and Image Management International ("AIIM"), the Company believes the U.S. market for document management services and products exceeded $6.5 billion in 1996. The Company believes that this market has been growing at an annual rate of approximately 11% since 1994. The Company believes that there is a large unvended component of the service market not contained in the AIIM data because most document management services for large organizations are still performed in-house. The Company believes that the continued growth of the document management industry is driven by such principal factors as: (a) improvement of digital technology (i.e., CD-ROM, personal computers and computer networking) which has dramatically reduced the cost of imaging, storing, indexing and retrieving documents while improving users' ability to manage documents more efficiently; (b) greater focus by many organizations, especially those in document-intensive industries such as health care, financial service and engineering, on document management processes and systems as part of a wider effort to manage their information more efficiently in order to improve productivity, competitiveness and client service; (c) organizations' need to manage the ever increasing volume of information facilitated by document-generating technologies such as facsimile, high-speed printing, the Internet and computer networking; and (d) increased outsourcing of document management services which allows organizations to focus on core competencies and revenue generating activities, reduce fixed costs, and gain access to new technologies without the risk and expense of near-term obsolescence. The Company believes the document management service industry is highly fragmented. The Company believes there are over 2,000 companies serving the document management needs of industry and government, with a majority of these companies generating annual revenues less than $10 million. The Company believes that many of the small businesses with which it competes are candidates for consolidation because they presently lack the capital for expansion, cannot keep abreast of rapidly changing technologies, are unable to effectively manage large complex projects, have not developed marketing and sales programs, do not have the volume buying power needed to negotiate favorable supply contracts, and are unable to meet the needs of large, geographically dispersed customers. In addition, increasing consolidation within two of the largest document-intensive industries, financial services and health care, has provided an additional impetus for document management companies to consolidate in order to grow with their clients. The continuing migration from paper and film to digital media has broken down many geographic barriers to the provision of document management services and has increased client demands for nationally integrated operations. As a result, the Company believes that many owners of competing service providers will be receptive to being acquired by a document management company with a national presence, a solutions orientation and an integration strategy in order to remain competitive and as a means of providing the owners of such firms with liquidity. 3 Business Strategy The Company's goal is to become a leading national, single-source provider of integrated document management solutions. The Company is implementing its business strategy by focusing on the following key elements: Become a Leading Single-Source Provider. The Company intends to become an industry leading single-source provider of integrated document management solutions. Building upon the expertise of the Founding Companies in a variety of digital, film and paper-based document management services and products, the Company is seeking to further develop consultative relationships with clients to assess their document management needs and to recommend and provide cost-effective combinations of services and products. In many cases the Company will customize packages of services and products for specific vertical markets such as health care, financial services and engineering. As it broadens its geographic network, the Company will expand national account coverage to service clients who wish to work with a single vendor. Capitalize on Business Integration. The Company is focused on achieving internal revenue and margin growth by efficiently integrating the operations of the Founding Companies and will seek additional growth by effectively integrating future acquisitions. Strategic, operational and financial planning will be directed by executive management in order to articulate clear and common objectives, implement strategy and measure performance. Key marketing activities are, and will continue to be, conducted under the corporate name in order to build a national brand. The centralization of administration and acquisition support, and the integration of internal financial, administrative, information and communications systems, are intended to enable business unit management to devote increased resources to business generation and client service. Increase Sales and Marketing Efforts. The Company has hired and will continue to hire additional salespersons to expand a national account sales force at the corporate level. Training of current and new salespersons emphasizes digital imaging applications, and the Company intends to institute a uniform sales compensation plan. The Company is focused on leveraging existing client relationships by cross-selling additional services and products and by coordinating and making available throughout the Company vertical market expertise already developed within the organization. In addition, the Company is seeking to extend throughout its operations the marketing programs used by certain of the Founding Companies, utilizing direct marketing, telemarketing, seminar selling and internet marketing programs. Make Selective Acquisitions. An important element of the Company's growth strategy is to make selected acquisitions to consolidate its position as a provider of complete document management solutions. The Company has acquired two document management companies subsequent to December 31, 1997 and will continue its aggressive acquisition program in order to increase geographic coverage and market share, expand service and product capabilities, obtain key human resources and technical expertise, and generate critical mass and economies of scale nationally and in regional markets. The Company believes that it is a preferred acquiror of other companies in the highly-fragmented document management industry as a result of the Company's technical capabilities, the industry reputation of the Founding Companies' management personnel, its solutions orientation and integration strategy, the benefits expected to flow from the Company's integration strategy, and the Company's financial capabilities and visibility as a public company. Moreover, the Company believes that the relationships developed through its licensing of software products and provision of offshore data entry services to over 100 independent document management service providers yield a valuable source of potential future acquisitions for the Company. 4 Based on its acquisition activities and contacts since its inception in November 1996, the Company believes it is well positioned to continue its acquisition program, under the direction of Andrew R. Bacas, its Senior Vice President - Corporate Development and Bruce M. Gillis, its Chief Executive Officer. As consideration for future acquisitions, the Company intends to use various combinations of Common Stock, cash, debt or other securities, and to emphasize Common Stock when continuing management is a key factor in the acquisition decision. The Company plans to register in the near future an additional 2,000,000 shares of its Common Stock with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Securities Act") for use in future acquisitions. Services and Products Services The Company offers a broad range of document management services across a variety of media types and formats. This broad range of services, together with the Company's technical capabilities and experience in selected vertical markets, enables the Company to tailor document management solutions for its clients based on their specific needs. The document management services that are currently provided by the Company in certain geographic locations include: Media Conversion Services Digital Imaging. The Company's digital imaging services involve the conversion of paper or microfilm documents into digital format through the use of optical scanners and the conversion of computer output to digital images typically stored on optical media or to microfilm. Once converted, digital images can be returned for client use on a CD-ROM or optical disk or stored by the Company in a data warehouse for subsequent retrieval and distribution. The Company believes that digital images are becoming the preferred format of storage for many organizations due to benefits such as high speed retrieval, multiple indexing capabilities and the ability to support and distribute digital, film or paper output to multiple locations. Micrographics. The Company performs micrographic services, including the conversion of paper documents into microfilm images, indexing of film for computer-aided retrieval systems and COM. Micrographic media are selected as an alternative to paper or digital media for one or more of the following reasons: (i) film archives are more accessible, longer-lived and cheaper to store than paper; (ii) film is eye-readable and not subject to technological obsolescence; (iii) converting paper to film is currently more cost-effective than scanning paper for most documents where ease of accessibility is not needed; and (iv) there is a large base of organizations with existing film archives and reader-printer equipment. Data Entry and Indexing. The creation of index files for the rapid retrieval of images is a critical part of most value-added document management solutions. The Company provides specialized indexing services to a variety of clients for both film and digital-format documents. These labor-intensive services are often contracted for outside the U.S. as a means to utilize qualified personnel at generally lower cost than is available domestically. Storage and Retrieval Services Digital Storage and Retrieval. Digital storage of documents enables customers to retrieve large volumes of documents immediately, which would not be possible using conventional filing systems. Digital storage on CD-ROM, optical disk, magnetic disk or tape also allows for the rapid distribution of archival information to multiple destinations and removes the logistical burden and cost of storing paper documents. These storage systems may 5 reside in one or more locations, either within a client's organization or at a Company-maintained data warehouse. Users may access images via a client-server network, a modem or an intra/internet. Because digitally-stored documents can be indexed according to several criteria, a client can use simple but exacting computer search techniques to rapidly access individual documents or groups of documents. The Company currently provides a variety of services and proprietary software products that support clients' digital storage and retrieval needs. Film and Paper Storage and Retrieval. The Company manages the archiving of client documents, including processing (i.e., indexing and formatting), storage, retrieval, delivery and return to storage of documents within a rapid time frame. Typical archival documents include medical and legal case files, business records and financial transaction documents. Service fees generally include billing for storage space, plus activity charges for retrieval, delivery and return to storage, and ultimately for document destruction. The Company currently maintains three storage facilities in the Chicago area, the San Francisco Bay area, and in Monroe, Louisiana. The Company believes that client demand in the areas of document management solution integration, data warehousing and facilities management is growing rapidly, and the Company intends to expand its current capabilities in these areas. Products The Company develops proprietary, open-architecture software products which support electronic imaging and indexing services. In addition, the Company offers a wide range of digital imaging, scanning and viewing hardware, micrographic reader-printers, micrographic film and supplies and other equipment. Software. The Company develops, markets and supports a suite of proprietary open-architecture software products that support and enhance the scanning, indexing and retrieval of digital images for its own use and for sale to other document management companies and end-users. Versions of these software products can be run on Microsoft Windows-equipped networks or personal computers, and simplify the process of scanning, indexing and retrieving electronic images of documents. One of the Company's products, called DocuROM, was initially developed for use by document management companies in their digital conversion operations. Other Company products, such as ScanTRAX and FileTRAX, were developed for marketing to end-users. These software products are marketed by the Company through a network of more than 70 other document management companies acting as value-added resellers and also directly through the Company's own sales force to end-users including, in some cases, other document management companies. The Company has also developed and markets a high-end scanning and viewing software package for the aperture card market. This product is utilized by both service companies and end-users to convert and index micrographic images of large format documents (in the form of 35 millimeter aperture cards) into digital images. Hardware and Other Equipment. The Company maintains broker or dealer relationships with a number of document management equipment suppliers, including Bell & Howell, Canon, Kodak, Minolta, Photomatrix, 3M and Xerox. These relationships allow the Company to provide clients with the latest micrographic and digital image viewing, printing and conversion equipment. Several of the Founding Companies provide extensive field maintenance and repair services for the equipment they sell. The Company shares the technical hardware expertise of the Founding Companies across the Company's operations. The Company expects that it will achieve certain purchasing efficiencies with equipment manufacturers and that it will be an attractive dealer to equipment manufacturers seeking to achieve broad geographic coverage with a single company. The Company also provides its clients a wide range of micrographic film products, digital media and other graphic supplies. 6 Clients and Key Markets The Company had a broad base of over 5,000 clients in the last year, none of which accounted for more than 5% of pro forma combined revenues for either the year ended December 31, 1996 or the year ended December 31, 1997. The Company's customers are not concentrated in any specific geographic area, but are concentrated primarily in the health care, financial services, and engineering industries, as well as certain other vertical markets. The major markets for document management services providers are transaction-intensive industries in which the core business processes involve documents or industries for which there are legal or regulatory considerations requiring the processing and storage of documents in a controlled manner. While maintaining its diversified client base, the Company intends to increase its expertise in certain core vertical markets. An overview of the Company's major target markets follows: The Health Care Market: consists of health care providers, health care insurers and pharmaceutical companies. The Financial Services Market: consists of commercial banks, mortgage banking companies, insurance companies, brokerage companies and credit card and loan processing companies. The Engineering Market: consists of manufacturers, architectural and engineering consultants, utilities and telecommunications companies. Other Vertical Markets: include the retail and transportation markets, government entities and litigation support.
Representative Clients ---------------------- Health Care Financial Services Engineering Other Vertical Markets - ----------- ------------------ ----------- ---------------------- Abbott Laboratories CIT Group The Boeing Company Avis Rent a Car, Inc. Novartis AG First Union National Bank General Electric Company DHL International Ltd. University of Nebraska Nordstrom Credit, Inc. General Motors Corporation Waste Management, Inc. Medical Center Honeywell, Inc. State of California Virginia Department of State of Louisiana Health State of Mississippi
The Company believes that it will enjoy a national reputation as a leading service provider for the engineering market, which utilizes large-format drawings and aperture cards. In addition, the Company provides document management services for a variety of non-industry-specific functions including accounts receivable and payable processing, shipping, human resources and management information systems reporting. Sales and Marketing Historically, the Company's sales efforts have been implemented separately by each Founding Company. Sales efforts are conducted by the Company's 65-person sales force supplemented by the sales activities of the Founding Companies' senior management. The Company plans to hire additional local territory salespersons and develop a national sales and marketing function as part of its national sales effort. The Company seeks to attract customers away from smaller industry providers through its ability to offer a broader range of solutions and products for clients' document management needs. The Company will also leverage existing client relationships by cross-selling its services, products and expertise throughout each client's organization. 7 The Founding Companies have succeeded in expanding their client base by pro-actively selling the benefits of outsourcing document management functions to clients which, at the time, were in-house operators. The Company believes that its proactive, solution-based approach can be broadly effective with potential clients and will enable the Company to increase its market position. In contrast to other market participants who traditionally have been reactive in their approach to selling, the Company's strategy is to pursue unvended accounts actively in addition to competing for existing outsourced business. Methods such as seminar selling, telemarketing and internet marketing are utilized by the Company. The Company believes that its ability to attract and retain additional clients will depend on its ability to offer the broad range of services and products necessary to satisfy such clients' document management needs and maintain a high level of customer satisfaction. Competition The document management services industry is competitive. A significant source of competition is the in-house document management capability of the Company's target client base. Additionally, the Company competes with single-market, independent document management companies. The Company's larger competitors include Dataplex Corp. (a subsidiary of Affiliated Computer Services, Inc.), F.Y.I. Incorporated, IKON Office Solutions and Lason, Inc. Many of these competitors are presently larger than the Company, and have greater financial and other resources and operate in broader geographic areas than the Company. Due to consolidation in the document management services industry, there is significant competition in acquiring such businesses, and the prices for attractive acquisition candidates may be bid up to higher levels, particularly in cases where competitors with greater financial and other resources than the Company compete for the same acquisition targets. Additionally, other potential competitors may choose to enter the Company's areas of operation in the future. Moreover, because the Company intends to enter new geographic areas, the Company expects to encounter significant competition from established competitors in each of such new areas. As a result of this competitive environment, the Company may lose clients or have difficulty in acquiring new clients and its revenues and margins may be adversely affected. The Company believes that the principal competitive factors in document management services include the breadth, accuracy, speed, reliability and security of service, technical expertise, industry specific knowledge and price. The Company competes primarily on the basis of the breadth and quality of service, technical expertise and industry specific knowledge, and believes that it competes favorably with respect to these factors. Intellectual Property The Company regards certain of its software products, information and know-how as proprietary and relies primarily on a combination of trademarks, copyrights, trade secrets and confidentiality agreements to protect its proprietary rights. The Company's business is not materially dependent on any patents and it does not believe that any of its other proprietary rights are of any material value. Despite the Company's efforts to protect its proprietary rights, unauthorized parties may attempt to obtain and use information that the Company regards as proprietary, and policing unauthorized use of the Company's proprietary information may be difficult. Litigation may be necessary for the Company to protect its proprietary information and could result in substantial cost to, and diversion of efforts by, the Company. The Company does not believe that any of its proprietary rights infringe the proprietary rights of third parties. Any infringement claims, whether with or without merit, can be time consuming and expensive to defend or may require the Company to enter into royalty or licensing agreements or cease the allegedly infringing 8 activities. The failure to obtain such royalty agreements, if required, and the Company's involvement in such litigation could have a material adverse effect on the Company's business, financial condition and results of operations. Environmental Matters The Company is subject to federal, state and local laws, regulations and ordinances that: (i) govern activities or operations that may have adverse environmental effects, such as discharges to air and water, as well as handling and disposal practices for hazardous substances and solid and liquid wastes; and (ii) impose liability for the costs of cleaning up, and certain damages resulting from, sites of past spills, disposal or other releases of solid and liquid wastes. The Company is not currently aware of any environmental conditions relating to present or past waste generation at or from these facilities that would be likely to have a material adverse effect on the business, financial condition or results of operations of the Company. However, there can be no assurances that environmental liabilities will not have a material adverse effect on the business, financial condition or results of operations of the Company. Employees As of December 31, 1997, the Company had approximately 950 employees, approximately 160 of whom were employed primarily in management and administration. None of the Company's employees are subject to a collective bargaining agreement, and the Company considers its relations with its employees to be good. RISK FACTORS This Annual Report contains certain forward-looking statements that involve substantial risks and uncertainties. When used in this Annual Report, the words "anticipate," "believe," "estimate," "expect" and similar expressions, as they relate to the Company or its management, are intended to identify such forward-looking statements. The Company's actual results, performance or achievements could differ materially from the results expressed in, or implied by, these forward-looking statements. Factors that could cause or contribute to such differences include those discussed below. Absence of Combined Operating History; Risks of Integration; Management of Growth ImageMax was founded in November 1996 and conducted no material operations prior to the consummation of the Offering and the simultaneous acquisition of the Founding Companies. Prior to their acquisition, the Founding Companies operated as separate independent entities. The Company has begun to develop a centralized reporting system, but has relied largely on the existing reporting systems of the Founding Companies. The success of the Company will depend, in part, on the Company's ability to continue to integrate the operations of the Founding Companies and any additionally acquired companies, including developing programs and processes that will promote cooperation and the sharing of opportunities and resources among the Founding Companies and any additionally acquired companies. The Company's executive management group has been assembled only recently and has no previous experience in the document management services industry. There can be no assurance that the executive management group will effectively be able to oversee the combined entity and implement the Company's operating or growth strategies. Further, to the extent that the Company is able to continue to implement its acquisition strategy, the resulting growth of the Company will place significant demands on executive and senior management and on the Company's internal systems and controls. There can 9 be no assurance that the newly assembled management group will be able to effectively manage the Company through a period of significant growth. In addition, no assurance can be given that the Company's current systems will be adequate for its future needs, that the Company will be successful in implementing new systems or that the cost of any such new systems will not be material. A number of the Founding Companies offer different services, utilize different capabilities and technologies and target different geographic markets and industries. These differences increase the risk inherent in successfully completing such integration. Further, there can be no assurance that the Company's strategy to become a national, single-source provider for integrated document management solutions will be successful, or that the Company's target industries will accept the Company as a provider of such services. In addition, there can be no assurance that the operating results of the Company will match or exceed the combined individual operating results achieved by the Founding Companies or additionally acquired companies prior to their acquisition. Risks of Acquisitions The Company intends to aggressively pursue the acquisition of additional document management services businesses in new geographic regions and in the regions where the Company currently operates as part of its growth strategy. Due to consolidation in the document management services industry, there is significant competition in acquiring such businesses, and the prices for attractive acquisition candidates may be bid up to higher levels, particularly in cases where competitors with greater financial and other resources than the Company compete for the same acquisition targets. The success of any completed acquisition, including the acquisition of the Founding Companies, will depend in large measure on the Company's ability to effectively integrate the operations, management and information systems of the acquired business. The process of integrating acquired businesses often involves unforeseen liabilities, risk exposure and difficulties and may require a disproportionate amount of the Company's financial and other resources. Acquisitions may involve a number of additional risks, such as adverse short-term effects on the Company's reported operating results, diversion of management's attention, the ability of the Company to retain key personnel and clients, unanticipated problems or legal liabilities, and amortization of acquired intangible assets, some or all of which could have a material adverse effect on the Company's business, financial condition and results of operations. There can be no assurance that the Company will be successful in identifying or consummating favorable acquisition opportunities or in integrating future acquisitions, or that acquired businesses will achieve sales and profitability that justify the Company's investment therein. Further, to the extent that the agreements relating to acquisitions by the Company provide for indemnification of the Company with respect to contingent and other liabilities of the acquired entity, such indemnification obligations may be, and are in the case of the acquisitions of the Founding Companies, for a limited duration and subject to negotiated limitations. If any claims or liabilities of the Company relating to the Founding Companies or future acquisitions are determined to not be subject to any indemnification obligations, or if the amount of such claims or liabilities exceed such limitations or the ability of the sellers of the acquired entities to satisfy their indemnification obligations, the Company's business, financial condition and results of operations could be materially and adversely effected. Need for Additional Financing to Implement Acquisition Strategy The Company intends to finance future acquisitions by using cash from operations, by issuing shares of Common Stock, debt or other securities and through borrowings under the Company's then-existing credit facilities. In March 1998, the Company entered into a five-year revolving credit facility (the "Credit Facility") with a national bank to assist in the funding of future acquisitions and operating activities. See "Management's Discussion and Analysis of Financial Condition and Results of Operations." The Company believes that its cash 10 position, its cash flow from operations, the 2,000,000 shares of Common Stock to be registered pursuant to a shelf registration statement, any debt or other securities it may issue and its Credit Facility will be sufficient to fund acquisition activity for at least the next 12 months. However, no assurance can be given that such financing sources will be adequate to fund such acquisition activity, or that the Company will not need additional debt or equity financing to successfully implement its acquisition strategy. There can be no assurance that the Company will be able to obtain such financing, if and when it is needed, or that, if available, such financing will be available on terms the Company deems acceptable. If the Company does not have sufficient cash resources or availability under its then existing credit facilities, or if the Common Stock does not maintain sufficient value or potential acquisition candidates are unwilling to accept Common Stock as part of the consideration for the sale of their businesses, the Company will be unable to successfully implement its acquisition strategy. The Company may substantially increase its level of indebtedness in the future to finance its acquisition program. The degree to which the Company is financially leveraged following such borrowings and the terms of the Company's indebtedness could have important consequences to shareholders, including that (i) the Company's ability to obtain additional financing in the future for working capital and general corporate purposes, to make acquisitions, fund capital expenditures and pay dividends may be impaired, (ii) a substantial portion of the Company's cash flow from operations may have to be dedicated to the payment of the principal of and interest on its indebtedness, (iii) certain of the Company's borrowings may be at variable rates of interest, which will expose the Company to the risk of increased interest rates, (iv) the Credit Facility contains certain financial and restrictive covenants which could limit the ability of the Company to effect future debt or equity financings and may otherwise restrict corporate activities, and (v) the Company may be more highly leveraged than many of its competitors, which may place the Company at a competitive disadvantage. Significant Intangible Assets As of December 31, 1997, $33.0 million, or 68.4%, of the Company's total assets represented intangible assets arising from the acquisition of the Founding Companies, of which $32.2 million was goodwill which is being amortized using an estimated life of principally 30 years and $0.8 million is acquired developed technology which is being amortized over a period of seven years. Goodwill is an intangible asset that represents the difference between the total purchase price of the acquisition of the Founding Companies and the amount of such purchase price allocated to the fair value of the net assets acquired. Goodwill and other intangibles are amortized over a period of time, with the amount amortized in a particular period constituting a non-cash expense that reduces the Company's net income in that period. A reduction in net income resulting from the amortization of goodwill and other intangibles may have an adverse impact upon the market price of the Company's Common Stock. In addition, in the event of a sale or liquidation of the Company or its assets or a change in events or circumstances of the related businesses, there can be no assurance that the value of such intangible assets would be recovered. In addition, there can be no assurance these intangible assets will be fully realizable over their amortization period. Importance of Development of New Services and Maintenance of Technological Capabilities The announcement or introduction of competing services or products incorporating new technologies or the emergence of new technical standards could render some or all of the Company's services or products unmarketable. The Company believes that its future success depends on its ability to enhance its current services or products and develop new services or products that address the increasingly sophisticated needs of its clients. The failure of the Company to develop and introduce enhancements and new services in a timely and cost-effective manner in response to changing technologies or client requirements could have a material adverse effect on the Company's business, financial condition or results of operations. Further, many of the Company's current services and products are non-proprietary in nature and there can be no assurance that the Company will be able 11 to obtain the rights to use any such technologies, that it will be able to effectively implement such technologies on a cost-effective basis or that such technologies will not ultimately render obsolete the Company's role as a third party provider of document management services and products. Competition The Company operates in a competitive environment. The document management services industry is highly fragmented and has relatively low barriers to entry. A significant source of competition is the in-house document handling capability of businesses within the Company's target markets, the so-called "unvended" part of the market. There can be no assurance that these businesses will outsource more of their document management needs or that other businesses will not bring in-house services that they currently outsource. In addition, certain of the Company's competitors are larger businesses, many of which have greater financial and other resources than the Company. Certain of these competitors operate in broader geographic areas than the Company, and others may choose to enter the Company's areas of operation in the future. In addition, there may be no assurance that other companies with greater resources than the Company will not enter the document management services industry in the future. Further, the Company intends to enter new geographic areas and expects to encounter significant competition from established competitors in each of such new areas. As a result of this competitive environment, the Company may lose clients or have difficulty in acquiring new clients, and its business, financial condition and results of operations may be adversely affected. Reliance on Management and Personnel The Company's operations and future prospects are dependent on the performance of its executive management team, including Bruce M. Gillis, S. David Model, James D. Brown, Andrew R. Bacas and Richard D. Moseley. The Company will also be dependent on senior management of the Founding Companies and on the senior management of subsequently acquired businesses. If any of these people are unable or unwilling to continue in their present roles, or if the Company is unable to attract and retain other skilled employees, the Company's business, financial condition and results of operations could be materially and adversely affected. The Company's future success and plans for growth also depend on its ability to attract, train and retain personnel in all areas of its business. There is strong competition for qualified personnel in the document management services industry and in many of the geographic markets in which the Company competes. As of September 1, 1997, the federal minimum wage increased to $5.15 an hour and there can be no assurance that such rate will not be substantially increased in the future. In addition, California and other states have increased or may increase their minimum wage above the federal minimum. Increases in the minimum wage may cause the Company to increase wages to remain competitive. Accordingly, the Company's business, financial condition and results of operations may be adversely affected. Potential Liability for Breach of Confidentiality A substantial portion of the Company's business involves the handling of documents containing confidential and other sensitive information. There can be no assurance that unauthorized disclosures of such information will not result in liability to the Company. It is possible that such liabilities could have a material adverse effect on the Company's business, financial condition and results of operations. 12 Dependence on Certain Markets The Company derives its revenues primarily from its target markets, including the health care, financial services and engineering industries. Fundamental changes in the business practices of any of these markets, whether due to regulatory, technological or other developments, could cause a material reduction in demand by such clients for the services offered by the Company. Any such reduction in demand may have a material adverse effect on the business, financial condition and results of operations of the Company. Environmental Risks Related to Certain Operations of the Company Certain of the Company's operations utilize chemical products which are regulated under federal, state and local laws as hazardous substances, and produce wastes which are regulated under these laws. The Company is not currently aware of any environmental conditions relating to present or past waste generation at or from these facilities that would be likely to have a material adverse effect on the business, financial condition or results of operations of the Company. However, there can be no assurances that environmental liabilities will not have a material adverse effect on the business, financial condition and results of operations of the Company. Effect of Potential Fluctuations in Quarterly Results of Operations The Company's results of operations are subject to variations in any given year, and from quarter to quarter. Factors that may cause material fluctuations in quarterly results of operations include the timing and structure of acquisitions, the timing and magnitude of costs related to such acquisitions, the gain or loss of significant clients, increases or reductions in the scope of services performed for significant clients, the timing or completion of significant projects, the relative mix of higher and lower margin projects, changes in pricing strategies, capital expenditures and other costs relating to the expansion of operations, the hiring or loss of personnel, and other factors that may be outside of the Company's control. In addition, because the anticipated financial benefits of the combination of the Founding Companies may not be generated immediately, the Company's initial results as a combined company may reflect corporate overhead that exceeds the realized benefits. As a result of the foregoing and other factors, the Company may experience material fluctuations in its results of operations on a quarterly basis, which may contribute to volatility in the price of its Common Stock. Given the possibility of such fluctuations, the Company believes that quarterly comparisons of the results of its operations during any fiscal year may not be meaningful and that results for any one fiscal quarter may not be indicative of future performance. Casualty; Risk of Business Interruptions Certain types of casualty losses that may be experienced by the Company may not be fully insurable on a cost-effective basis. In the future, should uninsured losses or damages occur, the Company could lose both its investment in and anticipated profits from the affected property and may continue to be obligated on any leasehold obligations, mortgage indebtedness or other obligations related to such property. Any significant damage to the Company's facilities or other event that causes significant interruptions in the Company's operations may not be covered by insurance and could have a material adverse effect on the Company's business, financial condition or results of operations. Public Sector Market and Contracting Risks Though a modest portion of the Company's present business involves public sector contracts, the Company anticipates a growing portion of its business coming from local, state and federal government agencies. 13 Public sector contracts are subject to detailed regulatory requirements and public policies, as well as to funding priorities. Contracts with public sector customers may be conditioned upon the continuing availability of public funds, which in turn depends upon lengthy and complex budgetary procedures, and may be subject to certain pricing constraints. Moreover, public sector contracts may generally be terminated for a variety of factors, including when it is in the best interests of the respective government. There can be no assurance that these factors or others unique to contracts with governmental entities will not have a material adverse effect on the Company's future business, financial condition and results of operations. Substantial Influence of Management and Existing Shareholders As of March 23, 1998, the former shareholders of the Founding Companies and the directors and other executive officers of the Company, and entities affiliated with them, beneficially own approximately 37.0% of the outstanding shares of Common Stock of the Company and are likely to continue to exercise substantial control over the Company's affairs. These shareholders acting together would likely be able to elect a sufficient number of directors to control the Board of Directors of the Company and to approve or disapprove most matters submitted to a vote of shareholders. Possible Volatility of Stock Price The market price for the Common Stock of the Company may be highly volatile. Prices for its Common Stock will be determined by the marketplace and may be influenced by many factors, including the depth and liquidity of the trading market, investor perception of the Company and general economic and market conditions and trends. In addition, factors such as the Company's financial results, quarterly variations in the Company's financial results, changes in earnings estimates by analysts, reported earnings that vary from such estimates, press releases by the Company or others, and developments affecting the Company or its industry generally may have a significant impact on the market price of its Common Stock. The stock market has, on occasion, experienced extreme price and volume fluctuations which have often been unrelated to the operating performance of the affected companies. Potential Effect of Shares Eligible for Future Sale on Price of Common Stock Sales, or the possibility of sales, of substantial amounts of its Common Stock in the public market by the Company's existing shareholders could adversely affect the market price of the Company's Common Stock. As of March 23, 1998, there were an aggregate of 5,552,755 shares of the Company's Common Stock outstanding. Of these, 3,100,000 shares that were sold in the Offering are freely tradeable without restriction or further registration under the Securities Act, unless such shares were purchased by "affiliates" of the Company as that term is defined in Rule 144 under the Securities Act. Simultaneously with the closing of the Offering, the Company issued, in the aggregate, 1,283,177 shares of Common Stock as a portion of the consideration for the acquisition of the Founding Companies. Such shares and the 1,154,259 shares of Common Stock purchased by certain shareholders prior to the Offering are "restricted securities" as that term is defined in Rule 144 under the Securities Act ("Restricted Shares"). Restricted Shares may be sold in the public market only if registered or if they qualify for an exemption from registration under the Securities Act. As a result of the contractual restrictions described below and certain exemptions under the Securities Act, the Restricted Shares will be eligible for sale in the public market as follows: (i) 765,769 shares will be eligible for sale upon expiration of the lock-up agreements after 180 days from December 4, 1997; (ii) 388,490 shares will become eligible for sale at various times between six months and one year from December 4, 1997; and (iii) 1,283,177 shares will be eligible for sale pursuant to the provisions of Rule 144 on December 4, 14 1998. Additionally, 367,500 shares of Common Stock may be acquired upon the exercise of outstanding stock options granted upon completion of the Offering to certain directors and officers of the Company which vest over a period of three years. Subsequent to December 31, 1997, the Company issued 15,319 restricted shares of Common Stock as partial consideration in connection with the acquisition of two document management companies. Such shares will be eligible for sale in the public market pursuant to the provisions of Rule 144 one year after their respective issuances. The Company has reserved for future issuances an additional 232,500 shares of Common Stock under its 1997 Incentive Plan and 250,000 shares for future issuances under its Employee Stock Purchase Plan. The Company has registered the shares issuable upon exercise of options granted under such plans and such shares are eligible for resale in the public market. Further, the Company intends to register 2,000,000 shares of Common Stock on a shelf registration to be utilized as consideration for future acquisitions, if any. Upon issuance, such shares generally will be eligible for resale in the public market. The Company, the Company's directors and officers, and certain shareholders of the Company have agreed not to offer, sell or otherwise dispose of any shares of Common Stock or any securities exercisable for or convertible into Common Stock for a period of 180 days from December 4, 1997 without the prior written consent of William Blair & Company, L.L.C., a managing underwriter of the Offering, except for the sale by the Company of shares of Common Stock in acquisition transactions (so long as the persons receiving such Common Stock agree to be similarly restricted for the remainder of the 180 day lock-up period). The shareholders of Founding Companies who received shares of Common Stock as consideration for the acquisitions of the Founding Companies have agreed not to offer, sell or otherwise dispose of such shares until December 9, 1998, except for transfers to immediate family members who agree to be bound by such restrictions. Notwithstanding the preceding, shareholders of the Founding Companies who received shares of Common Stock pursuant to the acquisitions and all shareholders of ImageMax prior to the offering have been granted certain "piggyback" registration rights permitting them to include their shares in certain future registration statements filed by the Company. Possible Anti-Takeover Effect of Certain Articles, Bylaw and Statutory Provisions Certain provisions of the Company's Amended and Restated Articles of Incorporation (the "Articles") and Amended and Restated Bylaws (the "Bylaws") could delay or frustrate the removal of incumbent directors, discourage potential acquisition proposals and proxy contests and delay, defer or prevent a change in control of the Company, even if such events could be beneficial, in the short term, to the interests of the shareholders. For example, the Articles allow the Company to issue preferred stock with rights senior to those of the Common Stock without shareholder action and provide that the Company's shareholders may call a special meeting of shareholders only upon a request of shareholders owning at least 50% of the Company's capital stock. The Bylaws provide for the Board of Directors of the Company to be divided into three classes of directors serving three-year staggered terms and that directors may be removed only for cause. The Articles authorize the issuance of up to 40,000,000 shares of Common Stock and 10,000,000 shares of Preferred Stock, no par value per share (the "Preferred Stock"). The Board of Directors of the Company will have the power to determine the price and terms under which any such Preferred Stock may be issued and to fix the terms thereof. The ability of the Board of Directors of the Company to issue one or more series of Preferred Stock without shareholder approval, as well as certain applicable statutory provisions under the Pennsylvania Business Corporation Law of 1988, as amended (the "BCL"), could deter or delay unsolicited changes in control of the Company by discouraging open market purchases of the Common Stock or a non-negotiated tender or exchange offer for such stock, which may be disadvantageous to the Company's shareholders who may otherwise desire to participate in such transaction and receive a premium for their shares. 15 The BCL contains a number of statutory "anti-takeover" provisions applicable to the Company. One such BCL provision prohibits, subject to certain exceptions, a "business combination" with a shareholder or group of shareholders (and certain affiliates and associates of such shareholders) beneficially owning more than 20% of the voting power of a public corporation (an "interested shareholder") for a five-year period following the date on which the holder became an interested shareholder. This provision may discourage open market purchases of a corporation's stock or a non-negotiated tender or exchange offer for such stock and, accordingly, may be considered disadvantageous by a shareholder who would desire to participate in any such transaction. The BCL also provides that directors may, in discharging their duties, consider the interests of a number of different constituencies, including shareholders, employees, suppliers, customers, creditors and the community in which it is located. Directors are not required to consider the interests of shareholders to a greater degree than other constituencies' interests. The BCL expressly provides that directors do not violate their fiduciary duties solely by relying on poison pills or the anti-takeover provisions of the BCL. Absence of Dividends The Company has never declared or paid cash dividends on its Common Stock and currently intends to retain all available funds for use in the operation and expansion of its business. The Company does not anticipate that any cash dividends on the Common Stock will be declared or paid in the foreseeable future. ITEM 2. PROPERTIES The Company's headquarters offices are in Conshohocken, Pennsylvania occupying 2,955 square feet which it maintains under a lease expiring in February 1999. In addition, as of December 31, 1997, the Company conducted operations through one owned and 22 other leased facilities in 13 states containing, in the aggregate, approximately 341,000 square feet. The Company's principal facilities are summarized in the following table: APPROXIMATE LOCATION SQUARE FOOTAGE PRINCIPAL USE(S) - -------- -------------- ---------------- Tempe, AZ 8,800 Document management operations, offices Emeryville, CA 24,000 Document management operations, offices Emeryville, CA 16,000 Warehouse Sacramento, CA 6,000 Document management operations Marietta, GA 3,200 Document management operations, offices Chesterton, IN* 41,000 Offices, document management operations Chesterton, IN 11,000 Warehouse Monroe, LA 65,000 Retail, document management operations, offices Shreveport, LA 4,000 Offices Stoughton, MA 47,000 Document management operations, offices Worcester, MA 4,800 Document management operations, offices Lincoln, NE 4,300 Document management operations, offices Lincoln, NE 6,900 Warehouse, offices Millwood, NY 1,000 Offices Dayton, OH 12,500 Document management operations, offices Eugene, OR 11,400 Document management operations, offices Eugene, OR 2,300 Warehouse Portland, OR 13,500 Document management operations, offices Portland, OR 2,200 Document management operations, offices 16 Cayce, SC 20,000 Document management operations, offices Cleveland, TN 12,000 Document management operations, offices Forest, VA 21,500 Document management operations, offices Richmond, VA 1,300 Offices * owned facility The Company believes that its properties are generally well maintained, in good condition and adequate for its present needs, and that suitable additional or replacement space will be available when needed. The Company owns or leases under both operating and capital leases substantial computer, scanning and imaging equipment which it believes to be adequate for its current needs. ITEM 3. LEGAL PROCEEDINGS The Company is from time to time a party to litigation arising in the ordinary course of its business. The Company is not subject to any pending material litigation. ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS None. ITEM 4(a). EXECUTIVE OFFICERS OF THE REGISTRANT The Company's executive officers and their respective ages and positions are as follows: NAME AGE POSITION ---- --- -------- Bruce M. Gillis...... 41 Chief Executive Officer and Chairman of the Board of Directors S. David Model....... 40 President and Chief Operating Officer Andrew R. Bacas...... 39 Senior Vice President - Corporate Development, Secretary and Director James D. Brown....... 40 Senior Vice President - Finance, Chief Financial Officer and Treasurer Richard D. Moseley*.. 36 Chief Information Officer * Employment effective as of April 1998. Bruce M. Gillis is a founder of the Company and has been the Company's Chief Executive Officer and Chairman of the Board of Directors since its inception. From September 1996 through the present, Mr. Gillis has been President of GBL Capital Corporation, an investment concern founded by Mr. Gillis, Andrew R. Bacas and a third party to develop the concept that ultimately became ImageMax. ImageMax had a management agreement with GBL Capital Corporation until the Offering, however, Mr. Gillis ceased day-to-day activity with GBL Capital Corporation when he became a full-time employee of ImageMax in August 1997. From December 1994 until the present, Mr. Gillis has been President of Villanova Investment Corp., a personal S Corporation vehicle from which he performed strategy and investment management consulting prior to the formation of GBL Capital Corporation. From 1989 to 1994, Mr. Gillis served as a Senior Vice President of Cedar Point Partners LP, an equity investment firm engaged in management buyouts. During that period, he was actively involved in the management of Liebhardt Mills, Inc., a national bedding manufacturer, of which he was Vice President-Finance. Mr. Gillis has served as a director of Liebhardt Mills, Inc. since 1989. From 1980 to 1983 and 1985 to 1988, Mr. Gillis served as a consultant with McKinsey & Co., Inc., a global strategy consulting firm. Mr. Gillis has an undergraduate degree in Economics from Yale University and an MBA from Stanford University. 17 S. David Model has been the Company's President and Chief Operating Officer since he joined the Company in August 1997. From 1987 to August 1997, Mr. Model was employed by Teleflex Incorporated, a diversified manufacturer of automotive, marine, industrial, aerospace and medical products, and has held several management positions in various subsidiaries of Teleflex Incorporated's Aerospace Group, from Sales and Engineering Manager of the Airfoil Management Division to Executive Vice President, Airfoil Technologies International, LLC. Mr. Model has an undergraduate degree in Engineering from Yale University and an MBA from the Wharton School of the University of Pennsylvania. Andrew R. Bacas is a founder of the Company and has been a director since its inception. Mr. Bacas joined GBL Capital Corporation in May 1997 and began serving as the Company's Senior Vice President - Corporate Development since August 1997. From 1992 to May 1997, Mr. Bacas was an associate and later a Vice President - Corporate Finance of Simmons & Company International, an investment bank to the international oil service and equipment industry. From 1991 to 1992, Mr. Bacas was a financial analyst for the Upstream Business Unit at Exxon Company, USA. From 1984 to 1991, Mr. Bacas was a Naval Flight Officer in the United States Navy. Mr. Bacas has an undergraduate degree in Engineering from Yale University and an MBA from the Wharton School of the University of Pennsylvania. James D. Brown has been the Chief Financial Officer of the Company since he joined the Company in August 1997. From March 1996 to August 1997, Mr. Brown was the Chief Financial Officer of LMR Holdings, Inc., a textile component manufacturer. In 1995, Mr. Brown was a consultant specializing in accounting controls and financing. From 1990 to 1994, Mr. Brown was a controller and Chief Financial Officer of various operating companies of Joseph Littlejohn & Levy, a merchant bank. Mr. Brown has an undergraduate degree in Economics from Hamilton College and a Masters degree in Accounting from New York University. Mr. Brown is a certified public accountant. Richard D. Moseley will assume the role of Chief Information Officer in April 1998. Mr. Moseley has served as the Chief Information Officer for Liebhardt Mills, Inc. where he developed significant expertise in enterprise-wise systems and electronic commerce. Mr. Moseley earned a MBA from Stanford University and an undergraduate degree from Brown University. Founding Company Management. Other significant employees of the Company are as follows: Gary D. Blackwelder, age 41, served as President of I(2) Solutions from 1989 until its acquisition by the Company. Mark Creglow, age 39, co-founded DDS in 1994 and served as its Vice President from its inception until its acquisition by the Company. Prior to founding DDS, Mr. Creglow was Regional Sales Manager for Distribution Management Systems, Inc. David L. Crowder, age 41, joined TPS in 1978, and served as its President from 1990 until its acquisition by the Company. 18 Carmen DiMatteo, age 62, joined Spaulding in 1960 and served as its President from 1996 until its acquisition by the Company. Jeffry P. Kalmon, age 48, joined TIMCO in 1984 as a sales representative and served as its President from 1996 until its acquisition by the Company. Rex Lamb, age 39, founded DTI in 1991 and served as its President from inception until its acquisition by the Company. Mr. Lamb co-founded DDS in 1994 and served as its President since inception until its acquisition by the Company. Mr. Lamb has an undergraduate degree in Education from the University of Nebraska. Mr. Lamb a director of the Company. Ovidio Pugnale, age 63, joined IMS's predecessor originally in 1980 as its General Manager and became IMS's President in 1986. Prior to joining IMS, Mr. Pugnale served 26 years as an officer in the United States Air Force. Ellen Rothschild-Taube, age 40, co-founded IDS in 1989 and served as its Vice President from its inception until its acquisition by the Company. John E. Semasko, age 52, acquired OMI in 1975 and served as its President from its inception until its acquisition by the Company. Mr. Semasko has an undergraduate degree in Forestry from Rutgers University. Mr. Semasko is a director of the Company. Mary Jane Semasko, age 50, served as Vice President of OMI from its inception in 1975 until its acquisition by the Company. Mitchell J. Taube, age 40, co-founded IDS in 1989 and served as IDS's President from its inception until its acquisition by the Company. Mr. Taube currently serves on the AIIM Service Company Executive Committee. David C. Utz, Jr., age 41, has served as a member of the Board of Directors of the Company since its inception. Mr. Utz served as Chairman of the Board and Chief Executive Officer of AMMCORP from August 1988 until its acquisition by the Company. Mr. Utz previously worked in administrative and financial capacities for Fairview Health System, a multi-hospital holding company, located in Minneapolis, Minnesota. Mr. Utz has an undergraduate degree in Business Administration from the University of Minnesota. David C. Yezbak, age 31, served as President of CodaLex, Laser Graphics and I(3) from 1995 until their acquisition by the Company. Previously, he served as Vice President of CodaLex from 1992 to 1995. PART II ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED SHAREHOLDER MATTERS The Company's Common Stock trades on the Nasdaq National Market under the symbol "IMAG." Shares of the Company's Common Stock were first traded publicly on December 4, 1997 in connection with the Offering at a price to the public of $12.00 per share. The following table sets forth, for the periods indicated, the high and low closing prices per share of the Common Stock, as reported on the Nasdaq National Market, since the Offering in December 1997. 19 High Low ------ ----- 1997 Fourth Quarter (from $ 12 1/16 $ 10 December 4, 1997) 1998 First Quarter (through $ 11 3/8 $ 7 1/4 March 23, 1998) On March 23, 1998, the closing bid price for a share of Common Stock as reported by the Nasdaq National Market was $7 1/4 and the number of holders of record of the Company's Common Stock was 55. The Company has not paid any dividends since its inception and currently intends to retain all earnings for use in its business. In addition, the Company is subject to certain restrictions with respect to the payment of dividends on its Common Stock, pursuant to the provisions contained in the Credit Facility. See "Management's Discussion and Analysis of Financial Condition and Results of Operations--Liquidity and Capital Resources." The declaration and payment of dividends in the future will be determined by the Company's Board of Directors in light of conditions then existing, including the Company's earnings, financial condition, capital requirements and other factors. On November 26, 1997, the Company effected a 0.846154 for 1 reverse stock split. All references to shares and per share amounts with respect to the Common Stock contained in this Annual Report have been retroactively restated to reflect the reverse stock split. In April 1997, the Company sold 105,000 shares of convertible Preferred Stock (which converted into 88,847 shares of Common Stock upon completion of the Offering) to certain of its founding shareholders and two additional accredited investors for an aggregate consideration of $105,000. In June 1997, the Company sold 97,308 shares of Common Stock to certain of its officers for an aggregate consideration of $230,000. On September 11, 1997, the Company sold 63,462 shares of Common Stock to an accredited investor for an aggregate consideration of $300,000 and 269,125 shares of convertible Preferred Stock (which converted into 227,719 shares of Common Stock upon completion of the Offering) to 17 accredited investors for an aggregate consideration of $1,077,000. Upon closing of the acquisitions of the Founding Companies, the Company issued an aggregate of 1,283,177 shares of Common Stock for an aggregate purchase price of $13.1 million (based on a discount of 15% from the Offering price of $12.00 per share) as partial consideration for the Founding Companies. The foregoing described issuances of securities in 1997 did not involve underwriters and were exempt from registration under the Securities Act by virtue of the exemption provided by Section 4(2) thereof for transactions not involving any public offering. The Company provides the following information regarding the Offering: The Offering of 3,100,000 shares of Common Stock was effected pursuant to a registration statement on Form S-1 (No. 333-35567) declared effective by the Commission on December 3, 1997. The Offering commenced on December 4, 1997 and terminated after all securities were sold. The managing underwriters were William Blair & Company, L.L.C. and Janney Montgomery Scott Inc. The Company sold all 3,100,000 shares that were registered. There were no selling security holders. 20 The gross proceeds of the Offering were $37.2 million. The Company estimates that expenses incurred in connection with the issuance and distribution of the securities registered amounted to $6.7 million, comprised of $2.6 million for underwriting discounts and commissions and $4.1 million for other expenses. The Company did not pay any finders' fees or expenses to or for underwriters in connection with the Offering. Other than the portion of underwriting discounts and commissions paid to one of the managing underwriters, which presently beneficially owns in excess of 10% of the Common Stock, none of the above-mentioned expenses represented direct or indirect payments to (i) directors or officers of the Company or their associates, (ii) persons owning ten percent (10%) or more of any class of equity security of the Company, or (iii) affiliates of the Company. After deduction of expenses, the net proceeds to the Company totaled $30.5 million. As described in the Company's registration statement, simultaneously with the consummation of the Offering, the Company acquired the Founding Companies. In addition to the issuance of Common Stock as described above, the net proceeds of the Offering, supplemented by cash on hand and operating income through December 31, 1997, was used to fund the acquisitions of the Founding Companies, including: (i) $27.1 million cash portion of the purchase price for the Founding Companies; (ii) $3.3 million of indebtedness net of cash acquired assumed from the Founding Companies and repaid by the Company; and (iii) $0.5 million to pay transaction fees associated with such acquisitions. The Company did not use any of such proceeds for the construction of plant, building and facilities, the purchase and installation of machinery and equipment or the purchase of real estate. Of the cash portion of the purchase price of the acquisitions of the Founding Companies, approximately $9.7 million represents the purchase price paid for certain Founding Companies which are affiliated with persons who are officers, directors or 5% shareholders of the Company. Of the indebtedness repaid, approximately $2.6 million was an obligation of a Founding Company whose shareholder is a director of the Company and approximately $77,000 was comprised of obligations of two Founding Companies, certain shareholders of which were elected as directors of the Company after the Offering. Other than as set forth above, none of the above-mentioned uses of proceeds represented direct or indirect payments to (i) directors or officers of the Company or their associates, (ii) persons owning ten percent (10%) or more of any class of equity security of the Company or (iii) affiliates of the Company. The amount of proceeds used to fund the acquisitions of the Founding Companies was $2.2 million greater than was estimated in the Company's prospectus used for the Offering. As disclosed in the prospectus, the use of proceeds reflected in the prospectus was based upon the Founding Companies' September 30, 1997 pro forma balance sheets, while the actual purchase price was in part determined by the net book value of assets, working capital and debt balances of the Founding Companies as of the date of their acquisition. 21 ITEM 6. SELECTED CONSOLIDATED FINANCIAL DATA The selected historical consolidated financial data presented below have been derived from the Company's consolidated financial statements for each of the periods indicated. The data set forth below is qualified by reference to and should be read in conjunction with Management's Discussion and Analysis of Financial Condition and Results of Operations and the Consolidated Financial Statements included as Items 7 and 8 in this Annual Report. STATEMENT OF OPERATIONS DATA:
From inception Year Ended (November 12, 1996) December 31, 1997 to December 31, 1996 ----------------- -------------------- (in thousands, except per share data) Revenues: Services $ 2,344 $ -- Products 767 -- ------- ------- 3,111 -- ------- ------- Cost of Revenues: Services 1,603 -- Products 524 -- Depreciation 94 -- ------- ------- 2,221 -- ------- ------- Gross Profit 890 Selling, General and Administrative Expenses 2,074 23 Special Compensation Charge 2,235 -- Acquired in-process Research and Development Charge 4,000 -- Amortization of Intangibles 112 -- ------- ------- Operating Loss (7,531) (23) Interest Expense, Net 8 -- ------- ------- Net Loss $(7,539) $ (23) ======= ======= Basic and Diluted Loss per Share $ (8.13) $ (0.04) ======= ======= Weighted Average Number of Common Shares Outstanding 928 550 ======= ======= BALANCE SHEET DATA: December 31, (in thousands) ------------------------------ 1997 1996 ------- ------- Cash and Cash Equivalents..................................... $ 1,310 $ 62 Working Capital .............................................. 2,994 57 Total Assets.................................................. 48,228 62 Long-term Debt, less Current Portion.......................... 342 -- Shareholders' Equity.......................................... 40,018 57
22 ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS The following discussion should be read in conjunction with the Company's financial statements and related notes thereto and the "Selected Consolidated Financial Data" set forth in Item 6 of this Annual Report. Except for the historical information contained herein, this and other sections of this Annual Report contain certain forward-looking statements that involve substantial risks and uncertainties. When used in this Annual Report, the words "anticipate," "believe," "estimate," "expect", and similar expressions, as they relate to the Company or its management, are intended to identify such forward-looking statements. The Company's actual results, performance, or achievements could differ materially from the results expressed in, or implied by, these forward-looking statements. Factors that could cause or contribute to such differences include those set forth in "Business--Risk Factors." Introduction ImageMax was founded in November 1996 to become a leading, national single-source provider of integrated document management solutions. See "Business." The Company's revenues are derived from a broad range of media conversion, storage and retrieval services, the sale of proprietary, open-architecture software products which support digital imaging and indexing services and the sale and service of a variety of document management equipment. Prior to their acquisitions, the Founding Companies have been managed throughout the periods presented as independent private companies, and their results of operations reflect different tax structures (S corporations and C corporations) which have influenced, among other things, their historical levels of owners' compensation. Certain former owners and key employees of the Founding Companies have agreed to certain reductions in their historical compensation subsequent to the Offering. The Company has begun and will continue to integrate the Founding Companies and their operations and administrative functions over a period of time. This integration process may present opportunities to reduce costs through the elimination of duplicative functions and through economies of scale, but will also necessitate additional costs and expenditures for corporate management and administration (including costs related to the hiring of additional management personnel), corporate expenses related to being a public company, systems integration and facilities expansion. These costs and possible cost-savings may make comparison of historical operating results not comparable to, or indicative of, future performance. The Company's revenues consist of service revenues, which are generally recognized as the related services are rendered, and product revenues which are recognized when the products are shipped to clients. Service revenues are primarily derived from media conversion, storage and retrieval, imaging and indexing of documents, and the service of imaging and micrographic equipment sold. Product revenues are derived from equipment sales and software sales and support. Cost of revenues consists principally of the costs of products sold and wages and related benefits, supplies, facilities and equipment expenses associated with providing the Company's services. Selling, general and administrative ("SG&A") expenses include salaries and related benefits associated with the Company's executive and senior management, marketing and selling activities (principally salaries and related costs), and financial and other administrative expenses. In July 1996, the Commission issued Staff Accounting Bulletin No. 97 ("SAB 97") relating to business combinations immediately prior to an initial public offering. SAB 97 requires that these combinations be accounted for using the purchase method of acquisition accounting. Under the purchase method, one of the 23 companies must be designated as the accounting acquiror. In the Offering, ImageMax was identified as the accounting acquiror. Accordingly, the sum of $32.2 million, net of amortization, is reflected as goodwill and developed technology on the Company's balance sheet. Goodwill will be amortized as a non-cash charge to the income statement principally over a 30-year period and developed technology of $0.8 million will be amortized over a seven-year period. The annual pro forma impact of this amortization expense is $1.2 million, of which $0.8 million is non-deductible for tax purposes. Accordingly, the Company will have an effective tax rate higher than the statutory rate. Prior to the issuance of SAB 97, goodwill and related amortization expense were not required to be recorded for most business combinations similar to the acquisitions of the Founding Companies. Historical Results of Operations Year ended December 31, 1997 The results of operations for the year ended December 31, 1997 include the revenues, cost of revenues and SG&A expenses for the Founding Companies only from December 9, 1997, the date of their acquisitions. Revenues and Cost of Revenues. Revenues and cost of revenues for the year ended December 31, 1997 consisted entirely of the operating results of the Founding Companies from December 9, 1997. Prior to the acquisitions of the Founding Companies, the Company generated no operating revenues. Selling, General and Administrative Expenses. SG&A expenses amounted to $2.1 million for the year ended December 31, 1997. These expenses consisted primarily of Founding Companies' administrative expenses and of management fees paid to GBL Capital Corporation, including $0.5 million pursuant to a management agreement. Special Compensation Charge. In 1997, the Company sold a total of 259,135 shares of Common Stock to officers and directors of ImageMax and to certain management personnel of the Founding Companies, at prices of $1.18, $2.36 and $4.73 per share. As a result, the Company recorded a non-recurring, non-cash compensation charge of approximately $2.2 million, representing the difference between the amount paid for the shares and the deemed value for accounting purposes (based on the Offering price of $12.00 per share). Acquired In-process Research and Development Charge. In connection with the acquisition of DDS, the Company incurred a one-time charge of $4.0 million for acquired in-process research and development relating to the value of certain software development projects underway as of the acquisition of DDS. From Inception to December 31, 1996 Selling, General and Administrative Expenses. SG&A expenses amounted to $23,000 in the period from inception of ImageMax (November 12, 1996) to December 31, 1996. These expenses consist primarily of management fees paid to GBL Capital Corporation and administrative expenses. 24 Supplemental Pro Forma, as Adjusted results of Operations for the year ended December 31, 1997 compared to the Supplemental Pro Forma, as Adjusted results of Operations for the year ended December 31, 1996. For purposes of discussion, the following table presents supplementary pro forma, as adjusted results of operations as if the acquisitions of the Founding Companies and the Offering occurred on January 1, 1996. Such results are not necessarily indicative of the results the Company would have obtained had these events actually then occurred or of the Company's future results. Management believes the following presentation is informative in analyzing the business.
Supplemental Pro Forma, as Adjusted for the Year Ended December 31, ----------------------------------------------------- (in thousands) 1997 1996 ---------------------- ---------------------- Revenues: Services ....................................... $ 35,898 73.4% $ 31,553 72.9% Products ....................................... 13,032 26.6 11,703 27.1 -------- ----- -------- ----- 48,930 100.0 43,256 100.0 -------- ----- -------- ----- Cost of Revenues:(1) Services ....................................... 22,914 46.8 20,267 46.9 Products ....................................... 8,695 17.8 8,968 20.7 Depreciation ................................... 1,317 2.7 1,408 3.3 -------- ----- -------- ----- 32,926 67.3 30,643 70.8 -------- ----- -------- ----- Gross Profit .......................... 16,004 32.7 12,613 29.2 Selling, General and Administrative Expenses (2) .. 11,367 23.2 11,198 25.9 Executive Compensation (3) ........................ 610 1.2 610 1.4 Special Compensation Charge (4) ................... 2,235 4.6 -- -- Founding Companies' Transaction Costs (5) ......... 742 1.5 -- -- Amortization of Intangibles (6) ................... 1,195 2.4 1,195 2.8 -------- ----- -------- ----- Operating Loss ........................ (145) (0.3) (390) (0.9) Interest Expense (7) .............................. 70 0.1 70 0.2 Interest Income ................................... (94) (0.2) (98) (0.2) -------- ----- -------- ----- Loss Before Income Taxes .............. (121) (0.2)% (362) (0.8)% Income Tax Provision (8) .......................... 1,139 2.3 169 0.4 -------- ----- -------- ----- Net Loss .......................................... $ (1,260) (2.6)% $ (531) (1.2)% ======== ===== ======== =====
- --------------- (1) Includes a pro forma adjustment to increase cost of revenues to reflect the Company's new operating leases on facilities at certain Founding Companies. (2) Reflects a pro forma reduction in compensation to the former owners of the Founding Companies to which they have agreed prospectively. SG&A expenses include compensation costs associated with positions eliminated or which will be eliminated in connection with the acquisitions of the Founding Companies, including the retirement of four senior Founding Companies' executives and other identified head-count reductions totaling $650,000 for each of the years ended December 31, 1997 and 1996, respectively. (3) Represents compensation of $610,000 annually based upon employment agreements with the Company's executive management. (4) Represents a non-recurring, non-cash special compensation charge. See Note 10 to the Consolidated Financial Statements. (5) Reflects non-recurring transaction costs incurred by the Founding Companies in connection with their acquisitions. (6) Represents amortization on the $32.2 million of goodwill recorded as a result of the acquisitions of the Founding Companies over an estimated life of principally 30 years and amortization of acquired developed technology of $0.8 million over an estimated life of seven years. Excludes a charge of $4.0 million for acquired in-process research and development. See Note 3 to the Consolidated Financial Statements. (7) Pro forma, as adjusted, operating results include adjustments to reflect the elimination of interest expense resulting from the repayment of debt paid from the net proceeds of the Offering. (8) Reflects an estimated corporate income tax rate of 39.3% before considering the non-deductibility of approximately $0.8 million of annual amortization of intangible assets and the $2.2 million special compensation charge. 25 Supplemental Pro Forma, as adjusted, Results of Operations for the Year Ended December 31, 1997 Compared to the Year Ended December 31, 1996 Revenues Total Revenues. Revenues increased $5.7 million, or 13.1%, from approximately $43.3 million in 1996 to $48.9 million in 1997. Service revenues increased 13.8% and comprised 72.9% of total revenues in 1996 as compared to 73.4% in 1997. Product revenues increased 11.4% and comprised 27.1% of total revenues in 1996 as compared to 26.6% in 1997. Service Revenues. Service revenues increased $4.3 million, or 13.8%, from $31.6 million in 1996 to $35.9 million in 1997. This increase was primarily due to: (1) $1.1 million resulting from increased utilization of excess media conversion capacity at production facilities in the South Carolina and Arizona business units; (2) $1.0 million resulting from the addition of several major recurring media conversion accounts in the Virginia business unit; (3) $1.4 million resulting from sales force additions and several major projects at the Company's off-shore data entry business unit; and (4) $0.4 million resulting from a variety of projects in the Ohio business unit reflecting the development of an in-house sales function established during 1996. Product Revenues. Product revenues increased $1.3 million, or 11.4%, from $11.7 million in 1996 to $13.0 million in 1997. This increase was primarily due to: (1) $0.7 million resulting from unit volume increases in digital imaging software sales to other document management companies and end-users; and (2) $0.6 million resulting from unit volume increases in hardware sales (principally equipment) in the Oregon and Louisiana business units. Cost of Revenues Cost of Services. Cost of services increased $2.6 million, or 13.1%, from $20.3 million in 1996 to $22.9 million in 1997. As a percentage of service revenues, cost of services amounted to 64.2% in 1996 as compared to 63.8% in 1997. The decrease in cost of services as a percentage of service revenues of 0.4% was primarily due to: (1) a decrease resulting from economies of scale and improved conversion methods in the Ohio business unit; (2) a decrease resulting from an increase in off-shore data entry revenue with principally fixed project management costs; (3) a decrease resulting from a change in the sales mix to higher margin digital imaging services in the Arizona business unit; (4) an offsetting increase resulting from incrementally higher service costs on larger revenue volumes in the Virginia business unit; and (5) an offsetting increase resulting from a shift in service mix in the Massachusetts business unit. Cost of Products. Cost of products decreased $0.3 million, or 3.0%, from $9.0 million in 1996 to $8.7 million in 1997. As a percentage of product revenues, cost of products amounted to 76.6% in 1996 as compared to 66.7% in 1997. The decrease in cost of products as a percentage of product revenues was primarily due to: (1) a decrease resulting from higher product sales in the Massachusetts and Oregon business units; (2) a shift in mix within software sales, and to the low incremental cost of additional software sales spread over an increased revenue base; and (3) an offsetting increase resulting from lower product sales in the Arizona and Ohio business units. Depreciation. Depreciation decreased $0.1 million, or 6.5%, from $1.4 million in 1996 to $1.3 million in 1997. 26 Gross Profit As a result of the higher service and product revenues and a decline in associated costs of services and products as described above, gross profit increased $3.4 million, or 26.9%, from $12.6 million in 1996 to $16.0 million in 1997. Selling, General and Administrative Expenses, Executive Compensation and Founding Companies' Transaction Costs In 1997, the Founding Companies incurred approximately $0.7 million of transaction costs in connection with their acquisition by the Company, which primarily consisted of outside accounting and legal fees. The Company also incurred additional SG&A expenses of $0.6 million for its corporate function in 1997, excluding executive management compensation, as compared to no material expenses in 1996. Corporate SG&A expenses included $0.3 million of Company formation costs (primarily audit and other public company expenses) triggered by the Offering in December 1997. Excluding Founding Company transaction costs and corporate SG&A expenses, SG&A expenses and executive compensation amounted to $10.7 million in 1997, a decline of $0.5 million from 1996. This decline is primarily attributable to $0.2 million in non-recurring severance costs incurred in 1996 and payroll and other cost reduction measures incurred by business unit management to improve profitability. In 1996 and 1997, SG&A expenses included $650,000, for each year, of compensation costs associated with positions that have been eliminated in connection with the acquisitions of the Founding Companies. Amortization of Intangible Assets Amortization of $1.2 million in 1996 and 1997 consists primarily of the estimated amortization of intangible assets (principally goodwill) related to the acquisitions of the Founding Companies, as though they had taken place on January 1, 1996. Operating Loss Operating loss was decreased by $245,000, from an operating loss of $390,000, or 0.9% of total revenues, in 1996 to an operating loss of $145,000, or 0.3% of total revenues, in 1997. Excluding the $2.2 million special compensation charge, operating income amounted to $2.1 million, or 4.3% of the total revenues, in 1997, an increase of $2.5 million as compared to 1996. Interest Income (Expense) Interest income, net of interest expense, was $28,000 in 1996 and $24,000 in 1997. Income Tax Provision The income tax provision increased $1.0 million in 1997 from $169,000 in 1996 to $1.1 million in 1997. Excluding the $2.2 million special compensation charge, the effective tax rate for 1997 was 53.8%. In each year, the effective tax rate exceeds the statutory rate as a result of non-deductible items, primarily amortization of intangible assets. The impact of non-deductible amortization on the Company's effective tax rate will tend to diminish as income before income taxes increases. Prior to their acquisitions, the Founding Companies were operated as separate entities for tax purposes in each year. 27 Net Loss Net loss amounted to $0.5 million in 1996 as compared to $1.3 million in 1997. Excluding the $2.2 million special compensation charge, net income amounted to $1.0 million in 1997, an increase of $1.5 million as compared to 1996. Liquidity and Capital Resources At December 31, 1997, the Company had cash and cash equivalents of $1.3 million and working capital of $3.0 million. Pursuant to the Offering, the Company raised net proceeds of $30.5 million, substantially all of which was used to fund the acquisitions of the Founding Companies, including the retirement of Founding Companies' debt of $3.3 million (net of cash acquired). In 1996, cash used in operating activities was $18,000. In 1997, cash provided by operating activities was $186,000. From inception through the effective date of the Offering (December 3, 1997), ImageMax had cash provided from financing activities of $1.7 million raised from private equity financings. In March 1998, the Company entered into the Credit Facility which provides a revolving line of credit of $30 million. Under the terms of the Credit Facility, the Company may borrow up to $25 million to finance future acquisitions and up to $5 million for working capital purposes. Outstanding working capital advances of up to $2 million may be made in the form of standby letters of credit for an applicable fee. The Credit Facility is secured by substantially all of the assets of the Company. Borrowings under the Credit Facility bear interest at prime, LIBOR plus a margin ranging from 1.5% to 2.5% based upon the ratio of debt to cash flow, or the Federal Funds rate plus 0.5%, at the option of the Company. In addition to interest and other customary fees, the Company is obligated to remit a fee ranging from 0.2% to 0.375% per year on unused commitments. The Credit Facility matures on March 31, 2003, unless previously terminated, and is subject to certain financial covenants, including certain restrictions on the payment of dividends, which pertain to criteria such as minimum levels of cash flow, ratio of debt to cash flow, and ratio of fixed charges to cash flow. The Company's available borrowing capacity under the Credit Facility is contingent upon the Company meeting certain financial ratios and other criteria. The Company's primary capital requirements relate to the implementation of its acquisition program and, to a lesser extent, working capital and capital expenditures. The Company intends to fund these capital requirements primarily through operating cash flows, borrowings under the Credit Facility, and the issuance of Common Stock, debt and other securities to sellers of acquired companies. In addition, the Company intends to file a shelf registration statement for 2,000,000 shares of Common Stock for issuance to sellers of acquired companies in connection with future acquisitions. The amount of equity capital available will depend in part on the willingness of sellers to accept Common Stock as partial consideration. Should the Company decide to accelerate its acquisition program, it may also seek additional financing through a public or private sale of equity securities. The Company plans to invest in equipment and technology to meet the needs of its expanding operations and to improve its operating efficiency. The Company estimates that, during fiscal year 1998, it will make approximately $1.1 million of capital expenditures related to the Founding Companies, in addition to its working capital needs. The Company also anticipates investing in acquisitions which would entail further capital expenditures and working capital requirements. The Company believes that the capital resources described above will be sufficient to meet its liquidity requirement for its operations and acquisition program for at least the next 12 months. 28 The Company is assessing both the internal readiness of its computer systems and the compliance of its software products sold to customers with respect to the year 2000 issue. The Company expects to implement successfully any systems and programming changes necessary to address any year 2000 issues, and does not believe that the cost of such actions will have a material effect on the Company's results of operations or financial condition. There can be no assurance, however, that there will not be a delay in, or increased costs associated with, the implementation of any such changes. Recent Development Subsequent to December 31, 1997, the Company completed two acquisitions accounted for under the purchase method of accounting. In January 1998, the Company acquired the business of Integrated Information Services ("IIS") of Carmel, Indiana. IIS provides a full range of document management products and services with an emphasis on digital document conversion, technical consulting, document management consulting and document management software. Its clients include national law firms and Fortune 500 companies. In February 1998, the Company acquired the business of Document Management Group and ImageTec, Inc. ("DMG/I") of Saginaw, Michigan. DMG/I provides a full range of document management services with an emphasis on digital imaging and micrographic conversion, indexing, and archiving. Its clients include health care institutions, title companies, manufacturing businesses and financial institutions. These acquisitions were funded through borrowings of $1.5 million and the issuance of 15,319 shares of Common Stock. The aggregate purchase price approximated $1.7 million, with the excess of purchase price over net assets acquired being assigned to goodwill. ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA The information required by this item is set forth on pages F-1 through F-21 hereto and is incorporated by reference herein. ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE None. PART III ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF REGISTRANT The information contained under the caption "Election of Class I Directors" and the information contained under the caption "Section 16(a) Beneficial Ownership Reporting Compliance" in the Company's Definitive Proxy Statement is incorporated herein by reference. ITEM 11. EXECUTIVE COMPENSATION The information contained under the caption "Executive Compensation" in the Company's Definitive Proxy Statement is incorporated herein by reference. 29 ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The information contained under the caption "Stock Ownership of Principal Shareholders and Management" in the Company's Definitive Proxy Statement is incorporated herein by reference. ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS The information contained under the caption "Certain Relationships and Related Transactions" in the Company's Definitive Proxy Statement is incorporated herein by reference. PART IV ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K (a) 1. Financial Statements See Index to the Consolidated Financial Statements which begin on page F-1 of this Annual Report. 2. Financial Statement Schedules See Schedule II - Valuation and Qualifying Accounts on page F-21 of this Annual Report. 3. Exhibits DESCRIPTION 2.1 * Agreement and Plan of Reorganization dated September 9, 1997, by and among the Company, DocuTech Data Systems, Inc., and Rex Lamb and Mark Creglow (including escrow agreement). 2.2 * Asset Purchase Agreement dated September 9, 1997 by and among the Company Rex Lamb and Vicki Lamb (including escrow agreement). 2.3 * Agreement and Plan of Reorganization dated September 9, 1997, by and among the Company, Utz Medical Enterprises, Inc., and David C. Utz, Jr. (including escrow agreement). 2.4 * Agreement and Plan of Reorganization dated September 9, 1997 by and among Jane Semasko and John Semasko, Oregon Micro-Imaging, Inc. and the Company (including escrow agreement). 2.5 * Asset Purchase Agreement dated September 9, 1997 by and among Spaulding Company, Inc., Semco Industries, Inc., and the Company (including escrow agreement). 2.6 * Asset Purchase Agreement dated September 9, 1997 by and among Total Information Management Corporation and the Company (including escrow agreement). 30 2.7 * Stock Purchase Agreement dated September 9, 1997 by and among Ovidio Pugnale, Image Memory Systems, Inc. and the Company (including escrow agreement). 2.8 * Agreement and Plan of Reorganization dated September 9, 1997, by and among the Company, International Data Services of New York, Inc., and Mitchell J. Taube and Ellen F. Rothschild-Taube (including escrow agreement). 2.9 * Stock Purchase Agreement dated September 9, 1997 by and among David Crowder, TPS Micrographics, Inc. and the Company (including escrow agreement). 2.10 * Agreement and Plan of Reorganization dated September 11, 1997 by and among the Company, Image and Information Solutions, Inc. and Gary Blackwelder (including escrow agreement). 2.11 * Agreement and Plan of Reorganization dated September 9, 1997 by and among Madeline Solomon, David C. Yezbak, CodaLex Microfilming Corporation and the Company (including escrow agreement). 2.12 * Asset Purchase Agreement dated September 9, 1997 by and among Imaging Information Industries, Inc., Gerald P. Gorman, Theodore J. Solomon, Jr., Charles P. Yezbak, III, David C. Yezbak and the Company (including escrow agreement). 2.13 * Agreement and Plan of Reorganization dated September 9, 1997 by and among Gerald P. Gorman, Theodore J. Solomon, Theodore J. Solomon, Jr., Charles P. Yezbak, III, David C. Yezbak, Laser Graphics Systems & Services, Inc. and the Company (including escrow agreement). 2.14 * Asset Purchase Agreement dated September 9, 1997 by and among DataLink Corporation, Judith E. DeMott, Geri E. Davidson and the Company (including escrow agreement). 3.1 * Amended and Restated Articles of Incorporation of the Company. 3.2 * Amended and Restated Bylaws of the Company. 4.1 * Specimen Stock Certificate. 4.2 * Shareholders Agreement between the Company and certain of its shareholders dated November 19, 1996. 4.3 * Amendment No. 1 to Shareholders Agreement dated November 19, 1996. 31 4.4 * Form of Joinder to Shareholders Agreement executed by Bruce M. Gillis, Sands Point Partners I, Wilblairco Associates, Osage Venture Partners, Steven N. Kaplan, Brian K. Bergeron, James M. Liebhardt, G. Stuart Livingston, III, Richard D. Moseley, David C. Utz, Jr., Bruce M. Gillis, Custodian for Claire Solomon Gillis, Bruce M. Gillis, Custodian for Katherine Tessa Solomon Gillis, S. David Model, Andrew R. Bacas, David C. Yezbak, Theodore J. Solomon, Walter F. Gilbert, Carmen DiMatteo, Patrick M. D'Agostino, David L. Crowder, James D. Brown and Mary M. Brown, JTWROS, Mitchell S. Taube and Ellen F. Rothschild-Taube, JTWROS, John Semasko and Jane Semasko, JTWROS, Wolfe F. Model and Renate H. Model. 10.1 *+ 1997 Incentive Plan. 10.2 *+ 1997 Employee Stock Purchase Plan. 10.3 *+ Management Agreement between GBL Capital Corporation and the Company dated November 27, 1996. 10.4 *+ Employment Agreement between the Company and Bruce M. Gillis dated as of August 1, 1997. 10.5 *+ Employment Agreement between the Company and James D. Brown dated as of August 18, 1997. 10.6 *+ Employment Agreement between the Company and S. David Model dated as of August 18, 1997. 10.7 *+ Employment Agreement between the Company and Andrew R. Bacas dated as of August 1, 1997. 10.8 + Employment Agreement between the Company and John E. Semasko dated as of September 9, 1997. 10.9 + Employment Agreement between the Company and Rex Lamb dated as of September 9, 1997. 10.10 * Lease Agreement dated March 26, 1996 by and between Marlyn D. Schwarz and Rex Lamb d/b/a DocuTech. 10.11 * Lease Agreement dated February 24, 1992 by and between Marlyn Schwarz d/b/a Old Cheney Plaza and Rex Lamb d/b/a DocuTech. 10.12 * Lease Agreement dated September 1, 1994 by and between Jonstar Realty Corporation and Spaulding Company, Inc. (renewed May 27, 1997). 10.13 [Intentionally left blank] 32 10.14 * Lease dated September 1, 1995 by and between Robert S. Greer and Elvera A. Greer and American Micro-Med Corporation. 10.15 * Lease dated February 8, 1994 and Lease Rider dated as of February 1, 1994 by and between Oporto Development Corp. and International Data Services of New York, Inc. 10.16 * Amendment of Lease dated June 6, 1996 between East Cobb Land Development and Investment Co., L.P. and Imaging Information Industries/David Yezbak, extended by letter dated July 16, 1997. 10.17 [Intentionally left blank] 10.18 * Lease dated January 10, 1996 by and between Financial Enterprises III and TPS Imaging Solutions, Inc. 10.19 * Lease Agreement dated March 31, 1995 by and between Technical Publications Service, Inc. and TPS Micrographics, Inc. 10.20 * Standard Industrial Commercial MultiTenant Lease-Gross dated June 20, 1994 by and between Northgate Assembly of God, North Sacramento, d/b/a Arena Christian Center and Total Information Management Corporation. 10.21 * Lease dated January 26, 1981 and Extension of Lease dated October, 1992 by and between Trader Vic's Food Products and Total Information Management Corporation. 10.22 * Standard Industrial Lease dated September 24, 1991 by and between Charles F. Coss, Viola B. Coss, Tracey C. Quinn, John Coss, Peter B. Coss, Elizabeth Coss, Tracey C. Quinn as Trustee for Geoffrey C. Quinn and Elizabeth Coss, as Trustee for Caitlin N. Shay and Total Information Management Corporation extended by letter dated October 18, 1996 from James Bunker to Peter Coss. 10.23 * Lease dated January 1, 1993 between CSX Transportation, Inc. and American Micro-Med Corporation. 10.24 * Lease and Service Agreement dated September 4, 1997 and two Addendums dated October 15, 1997 between American Executive Centers, Inc. and the Company. 10.25 Credit Agreement by and among the Company and Subsidiaries and CoreStates Bank, N.A., for itself and as Agent, and any other Banks becoming Party, dated as of March 30, 1998. 21 Subsidiaries. 23.1 Consent of Independent Public Accountants. 27 Financial Data Schedule (in electronic format only). - ------------------------------------------------------------------------------ * Incorporated by reference to the designated exhibit of the Company's Registration Statement on Form S-1 filed on September 12, 1997, as amended (file number 333-35567). + Management contract or compensatory plan or arrangement. 33 (b) Reports on Form 8-K. None. 34 IMAGEMAX, INC. AND SUBSIDIARIES INDEX TO CONSOLIDATED FINANCIAL STATEMENTS AND FINANCIAL STATEMENT SCHEDULE Page ---- REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS F-2 CONSOLIDATED BALANCE SHEETS F-3 CONSOLIDATED STATEMENTS OF OPERATIONS F-4 CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY F-5 CONSOLIDATED STATEMENTS OF CASH FLOWS F-6 NOTES TO CONSOLIDATED FINANCIAL STATEMENTS F-7 FINANCIAL STATEMENT SCHEDULE: II. VALUATION AND QUALIFYING ACCOUNTS F-21 F-1 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To ImageMax, Inc.: We have audited the accompanying consolidated balance sheets of ImageMax, Inc. (a Pennsylvania Corporation) and Subsidiaries as of December 31, 1997 and 1996, and the related consolidated statements of operations, shareholders' equity and cash flows for the year ended December 31, 1997 and the period from inception (November 12, 1996) to December 31, 1996. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits. We conducted our audits in accordance with generally accepted auditing standards. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the consolidated financial position of ImageMax, Inc. and Subsidiaries as of December 31, 1997 and 1996, and the results of their operations and their cash flows for the year ended December 31, 1997 and the period from inception (November 12, 1996) to December 31, 1996, in conformity with generally accepted accounting principles. Our audits were made for the purpose of forming an opinion on the basic financial statements taken as a whole. The schedule listed in the Index of Financial Statements and Financial Statement Schedule is presented for purposes of complying with the Securities and Exchange Commission's rules and is not a required part of the basic financial statements. This schedule has been subjected to the auditing procedures applied in our audits of the basic financial statements and, in our opinion, fairly states in all material respects the financial data required to be set forth therein in relation to the basic financial statements taken as a whole. Philadelphia, Pa., March 2, 1998 (except for the matter discussed in Note 7, as to which the date is March 30, 1998) F-2 IMAGEMAX, INC. AND SUBSIDIARIES CONSOLIDATED BALANCE SHEETS (in thousands - except share amounts)
December 31 -------------------------- ASSETS 1997 1996 -------- -------- CURRENT ASSETS: Cash and cash equivalents $ 1,310 $ 62 Accounts receivable, net of allowance for doubtful accounts of $375 6,922 -- Inventories 1,997 -- Prepaid expenses and other 367 -- Deferred income taxes 160 -- -------- -------- Total current assets 10,756 62 PROPERTY, PLANT AND EQUIPMENT, net 4,381 -- INTANGIBLES, primarily goodwill, net 32,996 -- OTHER ASSETS 95 -- -------- -------- $ 48,228 $ 62 ======== ======== LIABILITIES AND SHAREHOLDERS' EQUITY CURRENT LIABILITIES: Short-term debt and current portion of long-term debt $ 251 $ -- Accounts payable 2,846 -- Accrued expenses 3,248 5 Deferred revenue 1,333 -- Income taxes payable 84 -- -------- -------- Total current liabilities 7,762 5 -------- -------- DEFERRED INCOME TAXES 59 -- -------- -------- LONG-TERM DEBT 342 -- -------- -------- OTHER LONG-TERM LIABILITIES 47 -- -------- -------- COMMITMENTS AND CONTINGENCIES (Note 12) SHAREHOLDERS' EQUITY: Preferred stock, no par value, 10,000,000 shares authorized, none issued at December 31, 1997 and 126,924 shares issued and outstanding at December 31, 1996 -- 73 Common stock, no par value, 40,000,000 shares authorized, 5,537,436 and 550,000 shares issued and outstanding at December 31, 1997 and 1996 47,580 7 Accumulated deficit (7,562) (23) -------- -------- Total shareholders' equity 40,018 57 -------- -------- $ 48,228 $ 62 ======== ========
The accompanying notes are an integral part of these statements. F-3 IMAGEMAX, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF OPERATIONS (in thousands - except share and per share amounts)
From inception (November 12, Year Ended 1996) to December 31, December 31, 1997 1996 --------- ------------ REVENUES: Services $ 2,344 $ -- Products 767 -- --------- --------- 3,111 -- --------- --------- COST OF REVENUES: Services 1,603 -- Products 524 -- Depreciation 94 -- --------- --------- 2,221 -- --------- --------- Gross profit 890 -- SELLING, GENERAL AND ADMINISTRATIVE EXPENSES 2,074 23 SPECIAL COMPENSATION CHARGE 2,235 -- ACQUIRED IN-PROCESS RESEARCH AND DEVELOPMENT CHARGE 4,000 -- AMORTIZATION OF INTANGIBLES 112 -- --------- --------- Operating loss (7,531) (23) INTEREST EXPENSE, net 8 -- --------- --------- NET LOSS $ (7,539) $ (23) ========= ========= BASIC AND DILUTED LOSS PER SHARE $ (8.13) $ (0.04) ========= ========= WEIGHTED AVERAGE NUMBER OF COMMON SHARES OUTSTANDING 927,565 550,000 ========= =========
The accompanying notes are an integral part of these statements. F-4 IMAGEMAX, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY (in thousands - except share amounts)
Preferred Stock Common Stock ---------------------- --------------------- Accumulated Shares Amount Shares Amount Deficit Total --------- --------- --------- --------- --------- --------- BALANCE, NOVEMBER 12, 1996 (date of inception) -- $ -- -- $ -- $ -- $ -- Sales of Preferred and Common stock 126,924 73 550,000 7 -- 80 Net loss -- -- -- -- (23) (23) --------- --------- --------- --------- --------- --------- BALANCE, DECEMBER 31, 1996 126,924 73 550,000 7 (23) 57 Sales of Preferred and Common stock 316,565 2,479 160,770 1,468 -- 3,947 Sale of Common stock in initial public offering, net of offering costs -- -- 3,100,000 30,465 -- 30,465 Issuance of Common stock for Acquisitions -- -- 1,283,177 13,088 -- 13,088 Conversion of Preferred stock to Common stock (443,489) (2,552) 443,489 2,552 -- -- Net loss -- -- -- -- (7,539) (7,539) --------- --------- --------- --------- --------- --------- BALANCE, DECEMBER 31, 1997 -- $ -- 5,537,436 $ 47,580 $ (7,562) $ 40,018 ========= ========= ========= ========= ========= =========
The accompanying notes are an integral part of these statements. F-5 IMAGEMAX, INC. AND SUBSIDIARIES CONSOLIDATED STATEMENTS OF CASH FLOWS (in thousands)
From inception (November 12, Year Ended 1996) to December 31, December 31, 1997 1996 ----------- -------------- CASH FLOWS FROM OPERATING ACTIVITIES: Net loss $ (7,539) $ (23) Adjustments to reconcile net loss to net cash provided by (used in) operating activities- Depreciation and amortization 206 -- Special compensation charge 2,235 -- Acquired in-process research and development charge 4,000 -- Changes in operating assets and liabilities, net of effect from acquisitions-- Accounts receivable 42 -- Inventories (91) -- Prepaid expenses and other (55) -- Accounts payable 277 -- Accrued expenses 1,046 5 Deferred revenue 65 -- -------- -------- Net cash provided by (used in) operating activities 186 (18) -------- -------- CASH FLOWS FROM INVESTING ACTIVITIES: Purchases of businesses acquired, net of cash acquired (26,696) -- Purchases of property and equipment (90) -- -------- -------- Net cash used in investing activities (26,786) -- -------- -------- CASH FLOWS FROM FINANCING ACTIVITIES: Proceeds from sales of Common and Preferred stocks 32,177 80 Principal payments on debt and capital lease obligations (4,329) -- -------- -------- Net cash provided by financing activities 27,848 80 -------- -------- NET INCREASE IN CASH AND CASH EQUIVALENTS 1,248 62 CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 62 -- -------- -------- CASH AND CASH EQUIVALENTS, END OF PERIOD $ 1,310 $ 62 ======== ========
The accompanying notes are an integral part of these statements. F-6 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS DECEMBER 31, 1997 1. BACKGROUND: ImageMax, Inc. ("ImageMax") was incorporated in Pennsylvania on November 12, 1996. ImageMax was formed to become a leading national, single-source provider of integrated document management solutions. ImageMax had conducted no operations prior to acquiring certain businesses on December 9, 1997 discussed in Note 3. These businesses had been operating independently. Given the nature of ImageMax, it is and will be subject to many risks, including but not limited to, (i) an absence of combined operating history, (ii) the potential inability to manage growth, (iii) risks generally associated with acquisitions including implementation, (iv) possible fluctuations in quarterly results, (v) reliance on certain markets, and (vi) reliance on key personnel. 2. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES: Principles of Consolidation The accompanying consolidated financial statements include the accounts of ImageMax and its subsidiaries (the "Company"), (see Note 3). All material intercompany balances and transactions have been eliminated in consolidation. Use of Estimates The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Reverse Stock Split The Company effected a 0.846154 for 1 reverse stock split on November 26, 1997. All references in the accompanying financial statements to the number of shares and per-share amounts have been retroactively restated to reflect the reverse stock split. F-7 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) Revenue Recognition Service and product revenues are recognized when the services are rendered or products are shipped to customers. Deferred revenue represents payments for services that are billed in advance of performance. No single customer exceeded 10% of revenues for any year presented. Software revenue includes software licensing fees, consulting, implementation, training and maintenance. Depending on contract terms and conditions, software license fees are recognized upon delivery of the product if no significant vendor obligations remain and collection of the resulting receivable is deemed probable. The Company's software licensing agreements provide for customer support (typically 90 days) as an accommodation to purchasers of its products. The portion of the license fee associated with customer support is unbundled from the license fee and is recognized ratably over the warranty period as maintenance revenue. Consulting, implementation and training revenues are recognized as the services are performed. Maintenance revenues are recognized ratably over the terms of the maintenance agreements. Cash and Cash Equivalents The Company considers highly liquid investments with original maturities of three months or less to be cash equivalents. Cash equivalents are carried at cost, which approximates market value. At December 31, 1997 and 1996, cash equivalents primarily consisted of funds in a money market account. Inventories Inventories are stated at the lower of cost (first-in, first-out) or market. Inventories primarily represent microfiche viewing and imaging equipment, service parts and related supplies. Property, Plant and Equipment Property, plant and equipment are recorded at cost. Depreciation is provided using the straight-line method over the estimated useful lives of the assets (see Notes 4 and 5). Leasehold improvements are amortized over the lesser of their useful life or the term of the lease. Upon sale or other disposition of assets, the cost and related accumulated depreciation and amortization are removed from the respective accounts, and the resulting gain or loss, if any, is included in operating results. F-8 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) Intangibles Intangibles consist of goodwill and developed technology (see Note 3). Goodwill, representing the excess of cost over the fair value of the net tangible and identifiable intangible assets of acquired businesses (see Note 3), is stated at cost and is amortized over the estimated life of principally 30 years. Developed technology represents costs paid for certain software technology and is being amortized over 7 years (see Note 5). Software Development Costs The Company capitalizes certain costs incurred to internally develop software which is licensed to customers. Capitalization of such software development costs begins upon the establishment of technological feasibility (typically determined to be upon completion of a working model) and concludes when the product is available for general release. For the periods presented, such costs were immaterial. Costs incurred prior to the establishment of the technological feasibility are charged to product development expense as incurred. Income Taxes The Company accounts for income taxes in accordance with Statement of Financial Accounting Standards ("SFAS") No. 109, "Accounting for Income Taxes." Under SFAS No. 109, deferred income tax assets and liabilities are determined based upon differences between the financial reporting and income tax basis of assets and liabilities measured using enacted income tax rates and laws that are expected to be in effect when the differences reverse. Accounting for Stock-Based Compensation The Company applies Accounting Principles Board ("APB") Opinion No. 25, "Accounting for Stock Issued to Employees," in accounting for its stock options. The Company follows the disclosure requirements of SFAS No. 123, "Accounting for Stock-Based Compensation," which permits pro forma disclosure of net loss and loss per share using a fair value-based method of accounting for employee stock option plans in the accompanying notes to the financial statements. Supplemental Cash Flow Information The Company paid cash for interest for the year December 31, 1997 of $5,000. There were no cash payments made for interest for the period from inception (November 12, 1996) to December 31, 1996. There were no cash payments made for income taxes in the periods presented. F-9 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) The following table displays the net non-cash assets that were acquired during 1997, as a result of the businesses acquired described in Note 3: Year Ended December 31, 1997 ------------ Fair value of assets acquired $ 51,806,000 Liabilities assumed (10,972,000) Fair value of Common stock issued (13,088,000) Cash acquired (1,050,000) ------------- Net cash paid $ 26,696,000 ============= Loss Per Share The Company has presented loss per share pursuant to SFAS No. 128, "Earnings Per Share," and the Securities and Exchange Commission Staff Accounting Bulletin No. 98. Basic earnings per share ("Basic EPS") is computed by dividing the net loss for each period by the weighted average number of shares of Common stock outstanding for each period. Diluted earnings per share ("Diluted EPS") is computed by dividing net income for each period by the weighted average number of shares of Common stock and Common stock equivalents outstanding during each period. For both periods presented, Common stock equivalents are not included, as their effect is antidilutive and, as such, Basic EPS and Diluted EPS are the same. Fair Value of Financial Instruments Cash and cash equivalents, accounts receivable, accounts payable and accrued expenses are reflected in the financial statements at fair value due to their short-term nature. The carrying amount of long-term debt and capital lease obligations approximates fair value on the balance sheet dates. New Accounting Pronouncements In June 1997, the Financial Accounting Standards Board ("FASB") issued SFAS No. 130, "Reporting Comprehensive Income." This statement requires companies to classify items of other comprehensive income by their nature in a financial statement and display the accumulated balance of other comprehensive income separately from retained earnings and additional paid-in capital in the equity section of a statement of financial position. SFAS No. 130 is effective for financial statements issued for fiscal years beginning after December 15, 1997. Management believes that SFAS No. 130 will not have a material effect on the Company's financial statements. F-10 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) In June 1997, the FASB issued SFAS No. 131, "Disclosure About Segments of an Enterprise and Related Information." This statement establishes additional standards for segment reporting in the financial statements and is effective for fiscal years beginning after December 15, 1997. Management is currently evaluating the need to make additional disclosures under SFAS No. 131. However, this statement will not have any impact on the Company's reported consolidated financial position or results of operations. 3. INITIAL PUBLIC OFFERING AND ACQUISITIONS: On December 4, 1997, ImageMax sold 3,100,000 shares of its Common stock in an initial public offering (the "Offering") at $12 per share which raised net proceeds to ImageMax of $30,465,000, net of Offering costs of $6,735,000. Concurrent with the Offering, ImageMax began material operations with the acquisition of 14 document management services companies: (1) by merger: Utz Medical Enterprises, Inc., the parent of American Micro-Med Corporation (Chesterton, IN); Codalex Microfilming Corporation (Cayce, SC); Laser Graphics (Cleveland, TN); DocuTech Data Systems (Lincoln, NE); I2 Solutions (Monroe, LA); International Data Services (Millwood, NY); and Oregon Micro-Imaging, Inc., (Eugene, OR); (2) by net asset acquisition: Imaging Information Industries, Inc., (Marietta, GA); DocuTech, Inc. (Lincoln, NE); Datalink Corporation (Tempe, AZ); Spauling, Inc., a wholly owned subsidiary of Semco Industries, Inc., (Stoughton, MA); and Total Information Management Corporation (Emeryville, CA); and (3) by stock acquisition: Image Memory Systems (Dayton, OH); and TPS Micrographics, Inc., (Forest, VA - together, the "Founding Companies" and "Subsidiaries"). These acquisitions (the "Acquisitions") were accounted for using the purchase method of accounting. ImageMax has been identified as the accounting acquiror for financial statement presentation purposes. The total purchase price of the Founding Companies was $40.7 million, which consisted of: (i) $27.1 million in cash paid to the sellers; (ii) 1,283,177 shares of Common stock issued to the sellers; and (iii) transaction costs of $0.5 million. For purposes of computing the purchase price for accounting purposes, the value of the Common stock issued to the sellers was determined using an estimated fair value of $10.20 per share (or $13.1 million), which represents a discount of 15% from the Offering price of $12.00, due to a one-year restriction on the sale and transferability of the shares issued. Of the total purchase price of $40.7 million, $4.0 million was allocated to acquired in-process research and development and was charged to expense upon the consummation of the Acquisitions. Acquired in-process research and development reflects the value of DocuTech Data Systems ("DDS") development projects underway at the time of the acquisition. In connection with the DDS transaction, all identifiable assets acquired, including intangible assets, were assigned a portion of the cost of the acquired company based upon an independent valuation. F-11 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) The following unaudited pro forma information shows the results of the Company's operations in accordance with APB Opinion No. 16, "Business Combinations," for the years ended December 31, 1997 and 1996 as though the Acquisitions had occurred as of January 1, 1996: Year Ended December 31 ------------------------------- 1997 1996 ------------ ------------ Total revenues $ 48,930,000 $ 43,256,000 Operating loss $ (145,000) $ (390,000) Net loss $ (1,823,000) $ (1,148,000) Basic and diluted loss per share $ (0.33) $ (0.21) The pro forma results have been prepared for comparative purposes only and are not necessarily indicative of the actual results of operations had the Acquisitions taken place as of January 1, 1996, or the results that may occur in the future. The pro forma results do not give effect to the Offering and exclude any reductions in historical interest expense. In addition, the pro forma results exclude the $4.0 million acquired in-process research and development charge and the $0.5 million management fee paid to GBL Capital (see Note 13). Furthermore, the pro forma results do not give effect to all cost savings or incremental costs which may occur as a result of the integration and consolidation of the Acquisitions. Subsequent to December 31, 1997 through March 2, 1998, the Company completed two acquisitions for an aggregate purchase price of $1,660,000. These acquisitions were financed primarily through borrowings under a demand note payable by a bank. The demand note payable was subsequently refinanced through the Company's credit facility (see Note 7). The purchase agreements contain purchase price adjustments contingent upon net assets acquired and other criteria that could affect the ultimate net purchase price paid for the entity. The acquisitions will be accounted for under the purchase method of accounting. The excess purchase price over the underlying fair value of the assets and liabilities acquired will be allocated to goodwill. 4. PROPERTY, PLANT AND EQUIPMENT: Estimated Useful Lives December 31, (Years) 1997 ------------ ------------ Building and improvements 8-40 $1,223,000 Machinery and equipment 3-5 2,368,000 Furniture and office equipment 5 533,000 Transportation equipment 5 351,000 ---------- 4,475,000 Less- Accumulated depreciation and amortization (94,000) ---------- $4,381,000 ========== F-12 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) As of December 31, 1997, the Company had $264,000 in equipment, net of accumulated amortization, financed under capital leases. See Note 5 regarding long-lived assets impairment evaluation. 5. INTANGIBLE ASSETS: December 31, 1997 ------------ Goodwill $ 32,288,000 Developed technology 820,000 ------------ 33,108,000 Less- Accumulated amortization (112,000) ------------ $ 32,996,000 ============ Goodwill is amortized over principally 30 years and developed technology is amortized over 7 years. The Company continually evaluates whether events or circumstances have occurred that indicate that the remaining useful lives of the intangible assets should be revised or that the remaining balance of such assets may not be recoverable. When the Company concludes it is necessary to evaluate its long-lived assets, including intangibles, for impairment, the Company will use an estimate of the related undiscounted cash flow as the basis to determine whether impairment has occurred. If such a determination indicates an impairment loss has occurred, the Company will utilize the valuation method which measures fair value based on the best information available under the circumstances. As of December 31, 1997, the Company believes that no revisions of the remaining useful lives or write-downs of intangible assets are required. 6. ACCRUED EXPENSES: December 31 ----------------------------- 1997 1996 ---------- ---------- Compensation and benefits $ 957,000 $ -- Professional fees 956,000 -- Other 1,335,000 5,000 ---------- ---------- $3,248,000 $ 5,000 ========== ========== F-13 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) 7. LINE OF CREDIT: On March 30, 1998, the Company entered into a credit facility with a bank (the "Credit Facility"), providing a revolving line of credit of $30 million in borrowings. Under the terms of the Credit Facility, the Company may borrow up to $25 million to finance future acquisitions and up to $5 million for working capital purposes. Outstanding working capital advances of up to $2 million may be made in the form of standby letters of credit for an applicable fee. The Credit Facility is secured by substantially all of the assets of the Company. Borrowings under the facility bear interest at prime, LIBOR plus an applicable margin, or the Federal Funds rate plus an applicable margin, at the option of the Company. In addition to interest and other customary fees, the Company is obligated to remit a fee ranging from 0.2% to 0.375% per year on unused commitments. The Credit Facility matures on March 31, 2003, and is subject to certain financial covenants which pertain to criteria such as minimum levels of cash flow, ratio of debt to cash flow, and ratio of fixed charges to cash flow. The Company's available borrowing capacity under the Credit Facility is contingent upon the Company meeting certain financial ratios and other criteria. 8. LONG-TERM DEBT: December 31, 1997 ----------- Obligations under capital leases $ 346,000 Notes payable 247,000 --------- 593,000 Less- Current portion (251,000) --------- $ 342,000 ========= In connection with the Acquisitions (see Note 3), the Company assumed approximately $4.9 million of notes payable, capital lease obligations and other indebtedness. Of this amount, $4.3 million was repaid with the net proceeds of the Offering. The remaining capital lease obligations and notes payable are being repaid in various monthly installments through 2002. Interest rates on the outstanding obligations under capital leases range from 7.0% to 19.2% and the weighted average interest rate on these obligations is 14.4% as of December 31 ,1997. Interest rates on the notes payable outstanding balances range from 7.8% to 27.4% and the weighted average interest rate on these balances is 9.7% as of December 31, 1997. F-14 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) As of December 31, 1997, future scheduled principal payments on the Company's notes payable and capital lease obligations are as follows: 1998 $251,000 1999 204,000 2000 106,000 2001 24,000 2002 8,000 -------- $593,000 ======== 9. INCOME TAXES: At December 31, 1997, the Company had net operating loss carryforwards for income tax purposes of approximately $675,000. The net operating loss carryforward differs from the accumulated deficit principally due to differences in the recognition of certain expenses for financial and income tax reporting purposes, as well as, the nondeductibility of the special compensation and acquired in-process research and development charges. The components of income taxes are as follows: Year Ended December 31, 1997 ----------- Current: Federal $ -- State -- --------- -- --------- Deferred: Federal (424,000) State (130,000) --------- (554,000) --------- Valuation allowance 554,000 --------- $ -- ========= F-15 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) The reconciliation of the statutory federal income tax rate to the Company's effective income tax rate is as follows: Year Ended December 31, 1997 ------------ Income tax rate (34.0)% State income taxes, net of federal tax benefit (5.8)% Nondeductible special compensation and acquired in-process research and development charge 32.0% Non-deductible goodwill amortization 0.5% Valuation reserve 7.3% ----- --% ===== The tax effect of temporary differences as established in accordance with SFAS No. 109 that give rise to deferred taxes are as follows: December 31, 1997 ------------ Gross deferred tax assets: Accruals and reserves not currently deductible $ 446 Net operating loss carryforwards 268 Valuation allowance (554) ------- $ 160 ======= Gross deferred tax liabilities, primarily depreciation $ 59 ======= At December 31, 1997, a valuation allowance was established for the 1997 tax benefit based upon the realizability of the associated deferred tax asset under the guidelines set forth in SFAS No. 109. 10. SHAREHOLDERS' EQUITY: In November 1996, ImageMax issued 423,077 shares of Common stock to its founding shareholders for $5,000. In November 1996, ImageMax sold 126,924 shares of Series A Convertible Preferred Stock ("Series A Preferred Stock") and 126,923 shares of Common stock to certain of its founders and to David C. Utz, Jr., a director of ImageMax, for $75,000. Each share of Series A Preferred Stock is convertible into one share of Common stock. F-16 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) In April 1997, ImageMax sold 88,847 shares of Series A Preferred Stock to certain of its founders and two additional accredited investors for $105,000. In June 1997, ImageMax sold 97,308 shares of Common stock to certain of its founders and its President and Chief Operating Officer and Senior Vice-President-Finance, Chief Financial Officer, and Treasurer for $230,000. The related stock subscription receivables were paid in full in July 1997. In September 1997, ImageMax sold 227,719 shares of Series A Preferred Stock and 63,462 shares of Common stock for total consideration for $1,077,000 and $300,000, respectively, to certain of its founders and other accredited investors. In December 1997, ImageMax sold 3,100,000 shares of Common stock in the Offering and issued 1,283,177 shares of Common stock in partial consideration for the Acquisitions (see Note 3). In connection with the Offering, the Series A Preferred Stock outstanding as of the date of the Offering was converted into 443,489 shares Common stock. In 1997, ImageMax sold a total of 259,135 shares of Common stock (including shares of Common stock to be issued upon conversion of the Preferred stock) at prices of $1.18, $2.36 and $4.73 per share to officers, directors and certain management of the Founding Companies. As a result, ImageMax recorded a non-recurring non-cash compensation charge of $2,235,000, representing the difference between the amount paid for the shares and the deemed value for accounting purposes of $12.00 per share (the Offering price). 11. BENEFIT PLANS: Stock Option Plan The Company's 1997 Incentive Plan (the "Incentive Plan") provides for the award of up to 600,000 shares of its Common stock to its employees, directors and other individuals who perform services for the Company. The Incentive Plan provides for granting of various stock based awards, including incentive and non-qualified stock options, restricted stock and performance shares and units. Upon completion of the Offering, non-qualified options to purchase an aggregate of 367,500 shares of Common stock at the Offering price of $12 per share were granted to the Company's four executive officers and four outside directors. In accordance with APB Opinion No. 25, no compensation expense was recorded for these options. These grants will vest in equal installments over three years. The options expire 10 years after the date of grant. F-17 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) For purposes of the SFAS No. 123 disclosure requirements, the fair value of each option grant is estimated on the date of the grant using the Black-Scholes option pricing model with the following assumptions used for the grants in 1997: Risk free interest rate 6% Expected lives of the options 7 years Expected dividend yields N/A Expected volatility 40% The fair value of each option granted during 1997 is $6.35, as determined under the provisions of SFAS No. 123. The Company's net loss would have been increased and the following pro forma results would have been reported had compensation cost been recorded for the fair value of the options granted: Net loss, as reported $ 7,539,000 Pro forma net loss $ 7,588,000 Basic and diluted loss per share, as reported $ 8.13 Pro forma basic and diluted loss per share $ 8.18 Employee Stock Purchase Plan The Company has adopted an Employee Stock Purchase Plan (the "Purchase Plan") that will allow all full-time employees of the Company, other than 5% shareholders, temporary employees, and employees having less than six months service with the Company, to purchase shares of the Company's Common stock at a discount from the prevailing market price at the time of purchase. The price of such shares will be equal to 90% of the lower of the value of the share on the first and last days of the quarterly period. Such shares may either be issued by the Company from its authorized and unissued Common stock or purchased by the Company on the open market. A maximum of 250,000 shares of the Company's Common stock will be available for purchase under the plan. The Purchase Plan will be administered by the Board of Directors, which may delegate responsibility to a committee of the Board. The Board of Directors may amend or terminate the Purchase Plan at their discretion. The Purchase Plan is intended to comply with the requirements of Section 423 of the Internal Revenue Code. F-18 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) 12. COMMITMENTS AND CONTINGENCIES: Operating Leases The Company leases operating facilities, office equipment and vehicles under non-cancelable leases. Rent expense under operating leases for the year ended December 31, 1997 was $119,000. There was no rent expense for the period from inception (November 12, 1996) to December 31, 1996. Future minimum lease payments under noncancelable operating leases as of December 31, 1997 are as follows: 1998 $1,504,000 1999 1,225,000 2000 1,080,000 2001 952,000 2002 778,000 2003 and thereafter 1,173,000 ---------- $6,712,000 ========== The Company leases operating facilities at prices which, in the opinion of management, approximate market rates from entities which are owned by certain shareholders and directors of the Company. Rent expense on these leases was $64,000 for the year ended December 31, 1997. Employment and Consulting Agreements The Company has entered into employment agreements with its Chief Executive Officer, President and Chief Operating Officer, Senior Vice President - Finance, Chief Financial Officer and Treasurer, and Senior Vice President - Corporate Development, that provide for a minimum annual compensation. In addition, the Company entered into employment or consulting agreements with several management members of the Founding Companies that provide for minimum annual compensation. Future minimum compensation commitments under these agreements are as follows: 1998 $ 1,983,000 1999 1,895,000 2000 1,820,000 2001 325,000 2002 325,000 ----------- $ 6,348,000 =========== F-19 IMAGEMAX, INC. AND SUBSIDIARIES NOTES TO CONSOLIDATED FINANCIAL STATEMENTS -- (Continued) Other Matters The Company is party to various claims arising in the ordinary course of business. Although the ultimate outcome of these matters is presently not determinable, management, after consultation with legal counsel, does not believe that the resolution of these matters will have a material adverse effect on the Company's consolidated financial position or results of operations. The Company occasionally enters into agreements with its suppliers in the normal course of business that require the Company to purchase minimum amounts of inventory in future years in order to obtain favorable pricing. These commitments at December 31, 1997 are not considered material. 13. RELATED-PARTY MANAGEMENT CONTRACT: In November 1996, the Company entered into a management contract with GBL Capital Corp. ("GBL"), an entity whose shareholders are also shareholders of the Company. Two GBL shareholders are officers of the Company. GBL was engaged to manage the daily business operations of the Company. The Company paid GBL $5,000 upon entering into the agreement and was required to pay monthly fees ranging from $10,000 to $25,000. The monthly fee payments were terminated on July 31, 1997 when the two officers of the Company began to be paid directly by the Company. GBL services were ceased at the date. Upon the closing of the Offering, the Company paid GBL a fee of $500,000 in accordance with the terms of the management contract. Such fees were, in effect, compensation to the officers of the Company. The $500,000 was charged to the statement of operations as general and administrative expense upon the consummation of the Offering. F-20 IMAGEMAX, INC. AND SUBSIDIARIES SCHEDULE II - VALUATION AND QUALIFYING ACCOUNTS
Balance, Beginning of Charged to Reserve of Balance, Description Year Expense Acquisitions Deductions End of Year ----------- ------------ ---------- ------------ ---------- ----------- Allowance for doubtful accounts: 1997 $ -- $ -- $ 375 $ -- $ 375 1996 -- -- -- -- --
F-21 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. IMAGEMAX, INC. Dated: March 30, 1998 By: /s/ Bruce M. Gillis -------------------------------- Bruce M. Gillis Chief Executive Officer and Chairman of the Board of Directors Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the Registrant and in the capacities indicated and on the dates indicated. Signatures Title Date - ---------- ----- ---- /s/ Bruce M. Gillis Chief Executive Officer March 30, 1998 - ---------------------- and Chairman of the Board Bruce M. Gillis of Directors (Principal Executive Officer) /s/ James D. Brown Senior Vice President-Finance, March 30, 1998 - --------------------- Chief Financial Officer and James D. Brown Treasurer (Principal Financial and Accounting Officer) /s/ Andrew R. Bacas Director March 30, 1998 - --------------------- Andrew R. Bacas /s/ David C. Utz, Jr. Director March 30, 1998 - --------------------- David C. Utz, Jr. /s/ Rex Lamb Director March 30, 1998 - --------------------- Rex Lamb /s/ John E. Semasko Director March 30, 1998 - --------------------- John E. Semasko /s/ Lennox K. Black Director March 30, 1998 - --------------------- Lennox K. Black /s/ David C. Carney Director March 30, 1998 - --------------------- David C. Carney /s/ Lewis E. Hatch, Jr. Director March 30, 1998 - --------------------- Lewis E. Hatch, Jr. /s/ Steven N. Kaplan Director March 30, 1998 - --------------------- Steven N. Kaplan EXHIBIT INDEX Exhibit No. - ----------- 10.8 Employment Agreement between the Company and John E. Semasko dated as of September 9, 1997. 10.9 Employment Agreement between the Company and Rex Lamb dated as of September 9, 1997. 10.25 Credit Agreement by and among the Company and Subsidiaries and CoreStates Bank, N.A., for itself and as Agent, and any other Banks becoming Party, dated as of March 30, 1998. 21 Subsidiaries. 23.1 Consent of Independent Public Accountants. EX-10.8 2 EMPLOYMENT AGREEMENT Exhibit 10.8 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT is made as of the 9th day of September, 1997 by and between John Semasko, a resident of Oregon (the "Employee"), and DocuNet Inc., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania (the "Company"). WHEREAS, the Company desires to employ Employee and Employee desires to be employed by the Company for a period of time in the future upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein, and intending to be legally bound, the parties, subject to the terms and conditions set forth herein, agree as follows: 1. Employment and Term. The Company hereby employs Employee and Employee hereby accepts employment with the Company, as Business Unit Leader (such position, Employee's "Position") for a period commencing on the date hereof and continuing until December 31, 2000, subject to the provisions of Section 9 hereof (as may be extended upon mutual agreement of Employee and Employer, the "Term"). 2. Duties. During the Term, Employee shall serve the Company faithfully and to the best of his ability and shall devote his full time, attention, skill and efforts to the performance of the duties required by or appropriate for his Position. Employee agrees to assume such duties and responsibilities as may be customarily incident to such position, and as may be reasonably assigned to Employee from time to time by the Chief Operating Officer of the Company and Employee shall report, throughout the Term, to the Chief Operating Officer of the Company. 3. Other Business Activities. During the Term, Employee will not, without the prior written consent of the Company, directly or indirectly engage in any other business activities or pursuits whatsoever, except activities in connection with any charitable or civic activities, personal investments and serving as an executor, trustee or in other similar fiduciary capacity; provided, however, that such activities do not interfere with his performance of his responsibilities and obligations pursuant to this Agreement. 4. Compensation. The Company shall pay Employee, and Employee hereby agrees to accept, as compensation for all services rendered hereunder and for Employee's covenant not to compete as provided for in Section 8 hereof, an initial base salary at the annual rate of Seventy Five Thousand Dollars ($75,000) (as the same may hereafter be increased, the "Base Salary"). The Base Salary shall be inclusive of all applicable income, social security and other taxes and charges which are required by law to be withheld by the Company or which are requested to be withheld by Employee, and which shall be withheld and paid in accordance with the Company's normal payroll practice for the similarly situated employees set forth on Schedule A attached hereto (the "Similarly Situated Employees"), from time to time in effect. Increases in the Base Salary may be granted from time to time at the sole discretion of the Company in accordance with customary procedures in effect for Similarly Situated Employees of the Company, except as otherwise determined by the Compensation Committee (as hereafter defined). In addition to the Base Salary, commencing with fiscal year 1998, the Company shall pay Employee, within 30 days after receipt of the final audit for each fiscal year, such bonus (the "Bonus") as the Company shall determine with the manner of such determination to be substantially comparable to the manner applicable to the Similarly Situated Employees, except as otherwise determined by the Compensation Committee. As used herein, the term "Compensation Committee" shall mean a majority of the non-employee members of the compensation committee of the Board of Directors (the "Board") of the Company. Such Bonus shall be based on the guidelines established in advance of each fiscal year, including, but not limited to, the results of the Company's operations, achievement of business unit targets, if applicable, individual performance as compared to specific management objectives set prior to each year, and the Company's Chief Operating Officer's subjective assessment of Employee's performance. Accrual of any Bonus on the financial books and records of the Company for Employee shall in no way obligate the Company to pay a Bonus if Employee is terminated hereunder for any reason. Payment of Bonus upon termination of Employee is at the sole discretion of the Company. 5. Benefits and Expenses. In addition to those benefits provided to Similarly Situated Employees of the Company (except as otherwise determined by the Compensation Committee), Employee shall be entitled to those employee benefits (including expense reimbursement) as set forth on Schedule B hereto ("Benefits"). 6. Confidentiality. Employee recognizes and acknowledges that the Proprietary Information (as hereinafter defined) is a valuable, special and unique asset of the Business of the Company. As a result, both during the Term and thereafter, Employee shall not, without the prior written consent of the Company, for any reason, either directly or indirectly, divulge to any third-party or use for his own benefit, or for any purpose other than the exclusive benefit of the Company, any confidential, proprietary, business and technical information or trade secrets of the Company or of any subsidiary or affiliate of the Company ("Proprietary Information") revealed, obtained or developed in the course of his employment with the Company. Nothing herein contained shall restrict Employee's ability to make such disclosures as may be necessary or appropriate to the effective and efficient discharge of the duties required by or appropriate for his Position or as such disclosures may be required by law; and further provided, that nothing herein contained shall restrict Employee from divulging or using for his own benefit or for any other purpose any Proprietary Information that is readily available to the general public so long as such information did not become available to the general public as a direct or indirect result of Employee's breach of this Section 6. Failure by the Company to mark any of the Proprietary Information as confidential or proprietary shall not affect its status as Proprietary Information under the terms of this Agreement. 7. Property. (a) All right, title and interest in and to Proprietary Information shall be and remain the sole and exclusive property of the Company. During the Term, Employee shall not remove from the Company's offices or premises any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing Proprietary Information, or other materials or property of any kind belonging to the Company unless necessary or appropriate in accordance with the duties and responsibilities required by or appropriate for his Position and, in the event that such materials or property are removed, all of the foregoing shall be returned to their proper files or places of safekeeping as promptly as possible after the removal shall serve its specific purpose. Employee shall not make, retain, remove and/or distribute any copies of any of the foregoing for any reason whatsoever except as may be necessary in the discharge of his assigned duties and shall not divulge to any third person the nature of and/or contents of any of the foregoing or of any other oral or written information to which he may have access or with which for any reason he may become familiar, except as disclosure shall be necessary in the performance of his duties or as otherwise permitted pursuant to Section 6 hereof; and upon the termination of his employment with the Company, he shall leave with or return to the Company all originals and copies of the foregoing then in his possession, whether prepared by Employee or by others. (b) (i) Employee agrees that all right, title and interest in and to any innovations, designs, systems, analyses, ideas for marketing programs, and all copyrights, patents, trademarks and trade names, or similar intangible personal property which have been or are developed or created in whole or in part by Employee (1) at any time and at any place while the Employee is employed by Company and which, in the case of any or all of the foregoing, are related to and used in connection -2- with the Business of the Company, (2) as a result of tasks assigned to Employee by the Company, or (3) from the use of premises or personal property (whether tangible or intangible) owned, leased or contracted for by the Company (collectively, the "Intellectual Property"), shall be and remain forever the sole and exclusive property of the Company. The Employee shall promptly disclose to the Company all Intellectual Property, and the Employee shall have no claim for additional compensation for the Intellectual Property. (ii) The Employee acknowledges that all the Intellectual Property that is copyrightable shall be considered a work made for hire under United States Copyright Law. To the extent that any copyrightable Intellectual Property may not be considered a work made for hire under the applicable provisions of the United States Copyright Law, or to the extent that, notwithstanding the foregoing provisions, the Employee may retain an interest in any Intellectual Property that is not copyrightable, the Employee hereby irrevocably assigns and transfers to the Company any and all right, title, or interest that the Employee may have in the Intellectual Property under copyright, patent, trade secret and trademark law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration. The Company shall be entitled to obtain and hold in its own name all copyrights, patents, trade secrets, and trademarks with respect thereto. (iii) Employee further agrees to reveal promptly all information relating to the same to an appropriate officer of the Company and to cooperate with the Company and execute such documents as may be necessary or appropriate (1) in the event that the Company desires to seek copyright, patent or trademark protection, or other analogous protection, thereafter relating to the Intellectual Property, and when such protection is obtained, to renew and restore the same, or (2) to defend any opposition proceedings in respect of obtaining and maintaining such copyright, patent or trademark protection, or other analogous protection. (iv) In the event the Company is unable after reasonable effort to secure Employee's signature on any of the documents referenced in Section 7(b)(iii) hereof, whether because of Employee's physical or mental incapacity or for any other reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and in his behalf and stead to execute and file any such documents and to do all other lawfully permitted acts to further the prosecution and issuance of any such copyright, patent or trademark protection, or other analogous protection, with the same legal force and effect as if executed by Employee. 8. Covenant not to Compete. The Employee shall not, during the Term, including any extensions of the Term, and for a period of one (1) year thereafter (the "Restricted Period"), do any of the following directly or indirectly without the prior written consent of the Company: (a) compete, directly or indirectly, with the Company or any of its respective affiliates or subsidiaries, or any of their respective successors or assigns, whether now existing or hereafter created or acquired (collectively, the "Related Companies"), or otherwise engage or participate, directly or indirectly, in any document management business conducted or contemplated to be conducted by a Related Company, as the same are conducted or contemplated to be conducted (as has been determined by the Board) during the Term with respect to any period during the Term or any other business conducted by the Company in which the Employee is or has been actively engaged (the "Restricted Business") within any geographic area located within the United States of America, its possessions or territories (the "Restricted Area"); (b) become interested (whether as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent, consultant or otherwise), directly or indirectly, in any person, firm, corporation, association or other entity that engages in the Restricted Business within the Restricted -3- Area; provided, that nothing contained in this Section 8(b) shall prohibit Employee from owing, as a passive investor, not more than five percent (5%) of the outstanding securities of any class of any publicly-traded securities of any publicly held company listed on a well-recognized national securities exchange or on an interdealer quotation system of the National Association of Securities Dealers, Inc; (c) solicit, call on, divert, take away, influence, induce or attempt to do any of the foregoing, in each case within the Restricted Area, with respect to the Company's or any of its Related Companies' (A) customers or distributors or prospective customers or distributors (wherever located) with respect to goods or services that are competitive with those of the Company or any of its Related Companies, (B) suppliers or vendors or prospective suppliers or vendors (wherever located) to supply materials, resources or services to be used in connection with goods or services that are competitive with those of the Company or any of its Related Companies, (C) distributors, consultants, agents, or independent contractors to terminate or modify any contract, arrangement or relationship with the Employer or any of its Related Companies or (D) employees (other than family members) to leave the employ of the Company or any of its Related Companies. (d) influence or attempt to influence any supplier, customer or potential customer of the Company or any of the Related Companies to terminate or modify any written or oral agreement or course of dealing with the Company or the Related Companies; or (e) influence or attempt to influence any person (other than a family member) to either (i) terminate or modify his employment, consulting, agency, distributorship or other arrangement with the Company or any of the Related Companies, or (ii) employ or retain, or arrange to have any other person or entity employ or retain, any person who has been employed or retained by the Company or any of the Related Companies as an employee, consultant, agent or distributor of the Company or the Related Companies at any time during the one year period immediately preceding the termination of Employee's employment hereunder. 9. Termination. Employee's employment hereunder may be terminated during the Term upon the occurrence of any one of the events described in this Section 9. Upon termination, Employee shall be entitled only to such compensation and benefits as described in this Section 9. 9.1. Termination for Disability. (a) In the event of the disability of the Employee such that Employee is unable to perform his duties and responsibilities hereunder to the full extent required by this Agreement by reasons of illness, injury or incapacity for a period of more than ninety (90) consecutive days or more than one hundred twenty (120) days, in the aggregate, during any seven hundred thirty (730) day period ("Disability"), Employee's employment hereunder may be terminated by the Company by notice to the Employee pursuant to a determination by the Board of Directors. (b) In the event of a termination of Employee's employment hereunder pursuant to Section 9.1(a), Employee will be entitled to receive all accrued and unpaid (as of the date of such termination) Base Salary and Benefits and other forms of compensation and benefits payable or provided in accordance with the terms of any then existing compensation or benefit plan or arrangement ("Other Compensation"), including payment prescribed under any disability or life insurance plan or arrangement in which he is a participant or to which he is a party as an employee of the Company. Except as specifically set forth in this Section 9.1(b), the Company shall have no liability or obligation to Employee for compensation or benefits hereunder by reason of such termination. (c) For purposes of this Section 9.1, except as hereinafter provided, the determination as to whether Employee is Disabled shall be made by a licensed physician selected by Employee and shall be based upon a full physical examination and good faith opinion by such physician. -4- In the event that the Board of Directors disagrees with such physician's conclusion, the Board of Directors may require that Employee submit to a full physical examination by another licensed physician selected by Employee and approved by the Company. If the two opinions shall be inconsistent, a third opinion shall be obtained after full physical examination by a third licensed physician selected by Employee and approved by the Company. The majority of the three opinions shall be conclusive. 9.2. Termination by Death. In the event that Employee dies during the Term, Employee's employment hereunder shall be terminated thereby and the Company shall pay to Employee's executors, legal representatives or administrators an amount equal to the accrued and unpaid portion of his Base Salary, Benefits and Other Compensation through the end of the month in which he dies. Except as specifically set forth in this Section 9.2, the Company shall have no liability or obligation hereunder to Employee's executors, legal representatives, administrators, heirs or assigns or any other person claiming under or through his by reason of Employee's death, except that Employee's executors, legal representatives or administrators will be entitled to receive the payment prescribed under any death or disability benefits plan in which he is a participant as an employee of the Company, and to exercise any rights afforded under any compensation or benefit plan then in effect. 9.3. Termination By Company for Cause. (a) The Company may terminate Employee's employment hereunder at any time for "cause" upon written notice to Employee based upon a good faith determination by the Board of Directors. The good-faith nature of the determination shall not in and of itself mean that "cause" exists. For purposes of this Agreement, "cause" shall mean: (i) any breach by Employee of any of his obligations under Sections 6, 7 or 8 of this Agreement; (ii) gross incompetence in the performance by Employee of the duties required by or appropriate for his Position; (iii) any material violation of the Company's employee policies as applied to Similarly Situated Employees, as may be amended from time to time; (iv) fraud, embezzlement, theft or proven dishonesty in the course of his employment or conviction of a felony; or (v) other conduct of Employee involving any type of disloyalty to the Company or willful misconduct with respect to the Company; provided that in no event shall the refusal of Employee to relocate more than 60 miles from his current geographic location be deemed to constitute disloyalty for purposes of clause (v) above; and provided further that in the event of a "Change of Control", "Sale of the Company" or in the event Bruce M. Gillis is no longer either Chairman of the Board or Chief Executive Officer of the Company, "cause" shall have only the meaning set forth in clauses (i) and (iv) above. For purposes hereof, "Change of Control" shall mean the sale, transfer, assignment or other disposition (including by merger or consolidation) by stockholders of the Company, in one transaction or a series of related transactions, of more than fifty percent (50%) of the voting power represented by the then outstanding stock of the Company to one or more Persons, other than (i) any such sales, transfers, assignments or other dispositions by such stockholders to their respective Affiliates, (ii) any such transaction effected primarily to reincorporate the Company in another jurisdiction or (iii) any transaction in connection with the simultaneous acquisition of document management companies and the initial public offering of the common stock of the Company or its affiliate. For these purposes, (i) "Affiliate" means, with respect to any stockholder of the Company, (w) any Person directly or indirectly controlling, controlled by or under common control with such stockholder, (x) any Person owning or controlling ten percent (10%) or more of the outstanding voting securities of such stockholder, (y) any officer, director or general partner of such stockholder, or (z) any Person who is an officer, director, general partner, trustee or holder of ten percent (10%) or more of the outstanding voting securities of any Person described in clauses (w) through (y) of this sentence; and (ii) "Person" means an individual, partnership, corporation, joint venture, association, trust, unincorporated association, other entity or association. For purposes hereof, "Sale of the Company" means a sale, transfer, assignment or other disposition (including by merger or -5- consolidation), of all of the outstanding stock of the Company, or of all or substantially all of the assets of the Company, a liquidation or dissolution of the Company. A "Sale of the Company" shall not include the consummation of a public offering of Common Stock of the Company or its affiliate pursuant to a registration statement or any transaction effected primarily to reincorporate the Company in another jurisdiction. (b) In the event of a termination of Employee's employment hereunder pursuant to Section 9.3(a), Employee shall be entitled to receive all accrued but unpaid (as of the effective date of such termination) Base Salary, Benefits and Other Compensation. All Base Salary and Benefits shall cease at the time of such termination, subject to the terms of any benefit or compensation plan then in force and applicable to Employee. Except as specifically set forth in this Section 9.3, the Company shall have no liability or obligation hereunder by reason of such termination. 9.4. Termination By Company Without Cause. (a) The Company may terminate Employee's employment hereunder at any time, for any reason, with or without cause, effective upon the date designated by the Company upon written notice to Employee: provided that, if such notice is given during the one hundred eighty (180) days immediately preceding the end of the Term, such date shall be at least sixty (60) day after the date of such notice. (b) In the event of a termination of Employee's employment hereunder pursuant to Section 9.4(a), Employee shall be entitled to receive all accrued but unpaid (as of the effective date of such termination) Base Salary, Benefits and Other Compensation, plus continuation of the current Base Salary and continuation of Benefits (including vesting of options and other Benefits) for the remaining portion of the Term. Except as specifically set forth in this Section 9.4, the Company shall have no liability or obligation hereunder by reason of such termination. 9.5. Termination By Employee (a) Employee may terminate Employee's employment hereunder at any time effective upon the date designated by Employee in written notice of the termination of his employment hereunder pursuant to this Section 9.5(a) (the "Request Date"); provided that, such date shall be at least sixty (60) days after the date of such notice. Notwithstanding the foregoing, upon receipt by the Company of such written notice of termination, the Company in its sole discretion, may deem such termination effective immediately (the "Accelerated Termination Date"). In the event the parties mutually agree to an alternative date of termination, that date shall be considered the Request Date. (b) In the event of a termination of Employee's employment hereunder pursuant to Section 9.5(a) hereof, Employee shall be entitled to receive all accrued but unpaid (as of the earlier of the Request Date or the Accelerated Termination Date) Base Salary, Benefits and Other Compensation. If the Company does not terminate the Employee immediately upon receipt of the termination notice and Employee performs his duties in a satisfactory manner, as determined in the sole discretion of the Company, until the Request Date, Employee shall also be entitled to an amount equal to one month's Base Salary (in effect at such time). Except as specifically set forth in this Section 9.5(b), all Base Salary, Benefits and Bonuses shall cease at the time of such termination. Except as specifically set forth in this Section 9.5, the Company shall have no liability or obligation hereunder by reason of such termination. 10. Other Agreements. Employee represents and warrants to the Company that: (a) There are no restrictions, agreements or understandings whatsoever to which Employee is a party which would prevent or make unlawful Employee's execution of this Agreement or Employee's employment hereunder, or which is or would be inconsistent or in conflict with this Agreement or Employee's employment hereunder, or would prevent, limit or impair in any way the performance by Employee of his obligations hereunder, (b) That Employee's execution of this Agreement and Employee's employment hereunder shall not constitute a breach of any contract, agreement or understanding, oral or written, to which Employee is a party or by which Employee is bound, and (c) That Employee is free to execute this Agreement and to enter into the employ of the Company pursuant to the provisions set forth herein. -6- (d) In the event they are still in effect, that Employee shall disclose the existence and terms of the restrictive covenants set forth in this Agreement to any employer that the Employee may work for during the term of this Agreement (which employment is not hereby authorized) or after the termination of the Employee's employment at the Company. 11. Survival of Provisions. The provisions of this Agreement set forth in Sections 6, 7, 8, 9 and 20 hereof shall survive the termination of Employee's employment hereunder. 11A. Indemnification The Company shall indemnify the Employee from and against any and all losses, costs, damages or expenses the Employee may sustain by reason of his employment hereunder in the same manner and to the same extent as the executive officers of the Company. 12. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Employee and their respective successors, executors, administrators, heirs and/or permitted assigns; provided, however, that neither Employee nor the Company may make any assignments of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party hereto, except that, without such consent, the Company may assign this Agreement to an Affiliate or any successor to all or substantially all of its assets and business by means of liquidation, dissolution, merger, consolidation, transfer of assets, or otherwise, provided that such successor assumes in writing all of the obligations of the Company under this Agreement, subject, however, to Employee's rights as to termination as provided in Section 9.5 hereof. 13. Notice. Any notice or communication required or permitted under this Agreement shall be made in writing and sent by certified or registered mail, return receipt requested, addressed as follows: If to Employee: John Semasko Oregon-Micro-Imaging, Inc. 1790 West 11th Avenue Eugene, OR 97402 With a copy to: Bill Potter, Esquire Hershner, Hunter, Andrews, Neill & Smith LLP 180 East 11th Street Eugene, OR 97401 If to Company: Bruce M. Gillis DocuNet Inc. 715 Matson's Ford Road Villanova, PA 19085 with a copy to: Barry M. Abelson Pepper, Hamilton & Scheetz LLP 3000 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103 or to such other address as either party may from time to time duly specify by notice given to the other party in the manner specified above. 14. Entire Agreement; Amendments. This Agreement contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof, and merges and supersedes all -7- prior and contemporaneous discussions, agreements and understandings of every nature between the parties hereto relating to the employment of Employee with the Company. This Agreement may not be changed or modified, except by an Agreement in writing signed by each of the parties hereto. 15. Waiver. The waiver of the breach of any term or provision of this Agreement shall not operate as or be construed to be a waiver of any other or subsequent breach of this Agreement. 16. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. 17. Invalidity. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the validity of any other provision of this Agreement, and such provision(s) shall be deemed modified to the extent necessary to make it enforceable. 18. Section Headings. The section headings in this Agreement are for convenience only; they form no part of this Agreement and shall not affect its interpretation. 19. Number of Days. In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays, Sundays and legal holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday or day which is a holiday in Philadelphia, Pennsylvania, then such final day shall be deemed to be the next day which is not a Saturday, Sunday or legal holiday. 20. Specific Enforcement; Extension of Period. (a) Employee acknowledges that the restrictions contained in Sections 6, 7, and 8 hereof are reasonable and necessary to protect the legitimate interests of the Company and its affiliates and that the Company would not have entered into this Agreement in the absence of such restrictions. Employee also acknowledges that any breach by him of Sections 6, 7, or 8 hereof will cause continuing and irreparable injury to the Company for which monetary damages would not be an adequate remedy. The Employee shall not, in any action or proceeding to enforce any of the provisions of this Agreement, assert the claim or defense that an adequate remedy at law exists. In the event of such breach by Employee, the Company shall have the right to enforce the provisions of Sections 6, 7, and 8 of this Agreement by seeking injunctive or other relief in any court, and this Agreement shall not in any way limit remedies of law or in equity otherwise available to the Company. If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief, reasonable attorneys' fees, costs and disbursements. In the event that the provisions of Sections 6, 7, or 8 hereof should ever be adjudicated to exceed the time, geographic, or other limitations permitted by applicable law in any applicable jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, or other limitations permitted by applicable law. (b) In the event that Employee shall be in breach of any of the restrictions contained in Section 8 hereof, then the Restricted Period shall be extended for a period of time equal to the period of time that Employee is in breach of such restriction. 21. Arbitration. In the event that the parties are unable to resolve any disputes arising hereunder, such dispute shall be submitted for a binding determination by a neutral third party designated by the President of the Philadelphia office of the American Arbitration Association. -8- 22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first written above. ATTEST: DOCUNET INC. By: /s/ Andrew R. Bacas By: /s/ Bruce M. Gillis ------------------------ ---------------------------- Title: Secretary Title: Chief Executive Officer [CORPORATE SEAL] /s/ John Semasko ---------------------------- John Semasko -9- SCHEDULE A James Bunker Jane Semasko Gary Blackwelder Mitchell Taube Mark Creglow John Semasko David Crowder David C. Utz, Jr. Jeff Kalmon David Yezbak Rex Lamb Ovidio Pugnale -10- SCHEDULE B EMPLOYEE BENEFITS 1. Automobile: Automobile allowance comparable to the Similarly Situated Employees. 2. Vacation: 20 business days of vacation per year. 3. Major medical and hospitalization insurance: Major medical and hospitalization insurance and other benefits available through Company's cafeteria plan effected by the Company's contribution on behalf of Employee to Company's cafeteria plan in an amount equal to $150 per month. 4. Life Insurance: Policy with death benefit to Employee equal to two times initial Base Salary. 5. Expense Reimbursement: The Company will reimburse Employee for business trade and entertainment expenses normally reimbursed under the Company's general expense reimbursement policy, as may be in effect from time to time. 6. Other Benefits: Participation in 401(k) Plan, Supplemental Retirement Plan and Short-Term disability policy, and any other benefit plan which may be generally available to the class of employees of which Employee is employed. A-1 EX-10.9 3 EMPLOYMENT AGREEMENT Exhibit 10.9 EMPLOYMENT AGREEMENT THIS EMPLOYMENT AGREEMENT is made as of the 9th day of September, 1997 by and between Rex Lamb, a resident of Nebraska (the "Employee"), and DocuNet Inc., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania (the "Company"). WHEREAS, the Company desires to employ Employee and Employee desires to be employed by the Company for a period of time in the future upon the terms and conditions hereinafter set forth. NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein, and intending to be legally bound, the parties, subject to the terms and conditions set forth herein, agree as follows: 1. Employment and Term. The Company hereby employs Employee and Employee hereby accepts employment with the Company, as National Director - Imaging Sales (such position, Employee's "Position") for a period commencing on the date hereof and continuing until December 31, 2000, subject to the provisions of Section 9 hereof (as may be extended upon mutual agreement of Employee and Employer, the "Term"). 2. Duties. During the Term, Employee shall serve the Company faithfully and to the best of his ability and shall devote his full time, attention, skill and efforts to the performance of the duties required by or appropriate for his Position. Employee agrees to assume such duties and responsibilities as may be customarily incident to such position, and as may be reasonably assigned to Employee from time to time by the Chief Operating Officer of the Company and Employee shall report, throughout the Term, to the Chief Operating Officer of the Company. 3. Other Business Activities. During the Term, Employee will not, without the prior written consent of the Company, directly or indirectly engage in any other business activities or pursuits whatsoever, except activities in connection with any charitable or civic activities, personal investments and serving as an executor, trustee or in other similar fiduciary capacity; provided, however, that such activities do not interfere with his performance of his responsibilities and obligations pursuant to this Agreement. 4. Compensation. The Company shall pay Employee, and Employee hereby agrees to accept, as compensation for all services rendered hereunder and for Employee's covenant not to compete as provided for in Section 8 hereof, an initial base salary at the annual rate of One Hundred Thirty Thousand Dollars ($130,000) (as the same may hereafter be increased, the "Base Salary"). The Base Salary shall be inclusive of all applicable income, social security and other taxes and charges which are required by law to be withheld by the Company or which are requested to be withheld by Employee, and which shall be withheld and paid in accordance with the Company's normal payroll practice for the similarly situated employees set forth on Schedule A attached hereto (the "Similarly Situated Employees"), from time to time in effect. Increases in the Base Salary may be granted from time to time at the sole discretion of the Company in accordance with customary procedures in effect for Similarly Situated Employees of the Company, except as otherwise determined by the Compensation Committee (as hereafter defined). In addition to the Base Salary, commencing with fiscal year 1998, the Company shall pay Employee, within 30 days after receipt of the final audit for each fiscal year, such bonus (the "Bonus") as the Company shall determine with the manner of such determination to be substantially comparable to the manner applicable to the Similarly Situated Employees, except as otherwise determined by the Compensation Committee. As used herein, the term "Compensation Committee" shall mean a majority of the non-employee members of the compensation committee of the Board of Directors (the "Board") of the Company. Such Bonus shall be based on the guidelines established in advance of each fiscal year, including, but not limited to, the results of the Company's operations, achievement of business unit targets, if applicable, individual performance as compared to specific management objectives set prior to each year, and the Company's Chief Operating Officer's subjective assessment of Employee's performance. Accrual of any Bonus on the financial books and records of the Company for Employee shall in no way obligate the Company to pay a Bonus if Employee is terminated hereunder for any reason. Payment of Bonus upon termination of Employee is at the sole discretion of the Company. 5. Benefits and Expenses. In addition to those benefits provided to Similarly Situated Employees of the Company (except as otherwise determined by the Compensation Committee), Employee shall be entitled to those employee benefits (including expense reimbursement) as set forth on Schedule B hereto ("Benefits"). 6. Confidentiality. Employee recognizes and acknowledges that the Proprietary Information (as hereinafter defined) is a valuable, special and unique asset of the Business of the Company. As a result, both during the Term and thereafter, Employee shall not, without the prior written consent of the Company, for any reason, either directly or indirectly, divulge to any third-party or use for his own benefit, or for any purpose other than the exclusive benefit of the Company, any confidential, proprietary, business and technical information or trade secrets of the Company or of any subsidiary or affiliate of the Company ("Proprietary Information") revealed, obtained or developed in the course of his employment with the Company. Nothing herein contained shall restrict Employee's ability to make such disclosures as may be necessary or appropriate to the effective and efficient discharge of the duties required by or appropriate for his Position or as such disclosures may be required by law; and further provided, that nothing herein contained shall restrict Employee from divulging or using for his own benefit or for any other purpose any Proprietary Information that is readily available to the general public so long as such information did not become available to the general public as a direct or indirect result of Employee's breach of this Section 6. Failure by the Company to mark any of the Proprietary Information as confidential or proprietary shall not affect its status as Proprietary Information under the terms of this Agreement. 7. Property. (a) All right, title and interest in and to Proprietary Information shall be and remain the sole and exclusive property of the Company. During the Term, Employee shall not remove from the Company's offices or premises any documents, records, notebooks, files, correspondence, reports, memoranda or similar materials of or containing Proprietary Information, or other materials or property of any kind belonging to the Company unless necessary or appropriate in accordance with the duties and responsibilities required by or appropriate for his Position and, in the event that such materials or property are removed, all of the foregoing shall be returned to their proper files or places of safekeeping as promptly as possible after the removal shall serve its specific purpose. Employee shall not make, retain, remove and/or distribute any copies of any of the foregoing for any reason whatsoever except as may be necessary in the discharge of his assigned duties and shall not divulge to any third person the nature of and/or contents of any of the foregoing or of any other oral or written information to which he may have access or with which for any reason he may become familiar, except as disclosure shall be necessary in the performance of his duties or as otherwise permitted pursuant to Section 6 hereof; and upon the termination of his employment with the Company, he shall leave with or return to the Company all originals and copies of the foregoing then in his possession, whether prepared by Employee or by others. (b) (i) Employee agrees that all right, title and interest in and to any innovations, designs, systems, analyses, ideas for marketing programs, and all copyrights, patents, trademarks and trade names, or similar intangible personal property which have been or are developed or created in whole or in part by Employee (1) at any time and at any place while the Employee is employed by Company and which, in the case of any or all of the foregoing, are related to and used in connection -2- with the Business of the Company, (2) as a result of tasks assigned to Employee by the Company, or (3) from the use of premises or personal property (whether tangible or intangible) owned, leased or contracted for by the Company (collectively, the "Intellectual Property"), shall be and remain forever the sole and exclusive property of the Company. The Employee shall promptly disclose to the Company all Intellectual Property, and the Employee shall have no claim for additional compensation for the Intellectual Property. (ii) The Employee acknowledges that all the Intellectual Property that is copyrightable shall be considered a work made for hire under United States Copyright Law. To the extent that any copyrightable Intellectual Property may not be considered a work made for hire under the applicable provisions of the United States Copyright Law, or to the extent that, notwithstanding the foregoing provisions, the Employee may retain an interest in any Intellectual Property that is not copyrightable, the Employee hereby irrevocably assigns and transfers to the Company any and all right, title, or interest that the Employee may have in the Intellectual Property under copyright, patent, trade secret and trademark law, in perpetuity or for the longest period otherwise permitted by law, without the necessity of further consideration. The Company shall be entitled to obtain and hold in its own name all copyrights, patents, trade secrets, and trademarks with respect thereto. (iii) Employee further agrees to reveal promptly all information relating to the same to an appropriate officer of the Company and to cooperate with the Company and execute such documents as may be necessary or appropriate (1) in the event that the Company desires to seek copyright, patent or trademark protection, or other analogous protection, thereafter relating to the Intellectual Property, and when such protection is obtained, to renew and restore the same, or (2) to defend any opposition proceedings in respect of obtaining and maintaining such copyright, patent or trademark protection, or other analogous protection. (iv) In the event the Company is unable after reasonable effort to secure Employee's signature on any of the documents referenced in Section 7(b)(iii) hereof, whether because of Employee's physical or mental incapacity or for any other reason whatsoever, Employee hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Employee's agent and attorney-in-fact, to act for and in his behalf and stead to execute and file any such documents and to do all other lawfully permitted acts to further the prosecution and issuance of any such copyright, patent or trademark protection, or other analogous protection, with the same legal force and effect as if executed by Employee. 8. Covenant not to Compete. The Employee shall not, during the Term, including any extensions of the Term, and for a period of one (1) year thereafter (the "Restricted Period"), do any of the following directly or indirectly without the prior written consent of the Company: (a) compete, directly or indirectly, with the Company or any of its respective affiliates or subsidiaries, or any of their respective successors or assigns, whether now existing or hereafter created or acquired (collectively, the "Related Companies"), or otherwise engage or participate, directly or indirectly, in any document management business conducted or contemplated to be conducted by a Related Company, as the same are conducted or contemplated to be conducted (as has been determined by the Board) during the Term with respect to any period during the Term or any other business conducted by the Company in which the Employee is or has been actively engaged (the "Restricted Business") within any geographic area located within the United States of America, its possessions or territories (the "Restricted Area"); (b) become interested (whether as owner, stockholder, lender, partner, co-venturer, director, officer, employee, agent, consultant or otherwise), directly or indirectly, in any person, firm, corporation, association or other entity that engages in the Restricted Business within the Restricted -3- Area; provided, that nothing contained in this Section 8(b) shall prohibit Employee from owing, as a passive investor, not more than five percent (5%) of the outstanding securities of any class of any publicly-traded securities of any publicly held company listed on a well-recognized national securities exchange or on an interdealer quotation system of the National Association of Securities Dealers, Inc; (c) solicit, call on, divert, take away, influence, induce or attempt to do any of the foregoing, in each case within the Restricted Area, with respect to the Company's or any of its Related Companies' (A) customers or distributors or prospective customers or distributors (wherever located) with respect to goods or services that are competitive with those of the Company or any of its Related Companies, (B) suppliers or vendors or prospective suppliers or vendors (wherever located) to supply materials, resources or services to be used in connection with goods or services that are competitive with those of the Company or any of its Related Companies, (C) distributors, consultants, agents, or independent contractors to terminate or modify any contract, arrangement or relationship with the Employer or any of its Related Companies or (D) employees (other than family members) to leave the employ of the Company or any of its Related Companies. (d) influence or attempt to influence any supplier, customer or potential customer of the Company or any of the Related Companies to terminate or modify any written or oral agreement or course of dealing with the Company or the Related Companies; or (e) influence or attempt to influence any person (other than a family member) to either (i) terminate or modify his employment, consulting, agency, distributorship or other arrangement with the Company or any of the Related Companies, or (ii) employ or retain, or arrange to have any other person or entity employ or retain, any person who has been employed or retained by the Company or any of the Related Companies as an employee, consultant, agent or distributor of the Company or the Related Companies at any time during the one year period immediately preceding the termination of Employee's employment hereunder. 9. Termination. Employee's employment hereunder may be terminated during the Term upon the occurrence of any one of the events described in this Section 9. Upon termination, Employee shall be entitled only to such compensation and benefits as described in this Section 9. 9.1. Termination for Disability. (a) In the event of the disability of the Employee such that Employee is unable to perform his duties and responsibilities hereunder to the full extent required by this Agreement by reasons of illness, injury or incapacity for a period of more than ninety (90) consecutive days or more than one hundred twenty (120) days, in the aggregate, during any seven hundred thirty (730) day period ("Disability"), Employee's employment hereunder may be terminated by the Company by notice to the Employee pursuant to a determination by the Board of Directors. (b) In the event of a termination of Employee's employment hereunder pursuant to Section 9.1(a), Employee will be entitled to receive all accrued and unpaid (as of the date of such termination) Base Salary and Benefits and other forms of compensation and benefits payable or provided in accordance with the terms of any then existing compensation or benefit plan or arrangement ("Other Compensation"), including payment prescribed under any disability or life insurance plan or arrangement in which he is a participant or to which he is a party as an employee of the Company. Except as specifically set forth in this Section 9.1(b), the Company shall have no liability or obligation to Employee for compensation or benefits hereunder by reason of such termination. (c) For purposes of this Section 9.1, except as hereinafter provided, the determination as to whether Employee is Disabled shall be made by a licensed physician selected by Employee and shall be based upon a full physical examination and good faith opinion by such physician. -4- In the event that the Board of Directors disagrees with such physician's conclusion, the Board of Directors may require that Employee submit to a full physical examination by another licensed physician selected by Employee and approved by the Company. If the two opinions shall be inconsistent, a third opinion shall be obtained after full physical examination by a third licensed physician selected by Employee and approved by the Company. The majority of the three opinions shall be conclusive. 9.2. Termination by Death. In the event that Employee dies during the Term, Employee's employment hereunder shall be terminated thereby and the Company shall pay to Employee's executors, legal representatives or administrators an amount equal to the accrued and unpaid portion of his Base Salary, Benefits and Other Compensation through the end of the month in which he dies. Except as specifically set forth in this Section 9.2, the Company shall have no liability or obligation hereunder to Employee's executors, legal representatives, administrators, heirs or assigns or any other person claiming under or through his by reason of Employee's death, except that Employee's executors, legal representatives or administrators will be entitled to receive the payment prescribed under any death or disability benefits plan in which he is a participant as an employee of the Company, and to exercise any rights afforded under any compensation or benefit plan then in effect. 9.3. Termination By Company for Cause. (a) The Company may terminate Employee's employment hereunder at any time for "cause" upon written notice to Employee based upon a good faith determination by the Board of Directors. The good-faith nature of the determination shall not in and of itself mean that "cause" exists. For purposes of this Agreement, "cause" shall mean: (i) any breach by Employee of any of his obligations under Sections 6, 7 or 8 of this Agreement; (ii) gross incompetence in the performance by Employee of the duties required by or appropriate for his Position; (iii) any material violation of the Company's employee policies as applied to Similarly Situated Employees, as may be amended from time to time; (iv) fraud, embezzlement, theft or proven dishonesty in the course of his employment or conviction of a felony; or (v) other conduct of Employee involving any type of disloyalty to the Company or willful misconduct with respect to the Company; provided that in no event shall the refusal of Employee to relocate more than 60 miles from his current geographic location be deemed to constitute disloyalty for purposes of clause (v) above; and provided further that in the event of a "Change of Control", "Sale of the Company" or in the event Bruce M. Gillis is no longer either Chairman of the Board or Chief Executive Officer of the Company, "cause" shall have only the meaning set forth in clauses (i) and (iv) above. For purposes hereof, "Change of Control" shall mean the sale, transfer, assignment or other disposition (including by merger or consolidation) by stockholders of the Company, in one transaction or a series of related transactions, of more than fifty percent (50%) of the voting power represented by the then outstanding stock of the Company to one or more Persons, other than (i) any such sales, transfers, assignments or other dispositions by such stockholders to their respective Affiliates, (ii) any such transaction effected primarily to reincorporate the Company in another jurisdiction or (iii) any transaction in connection with the simultaneous acquisition of document management companies and the initial public offering of the common stock of the Company or its affiliate. For these purposes, (i) "Affiliate" means, with respect to any stockholder of the Company, (w) any Person directly or indirectly controlling, controlled by or under common control with such stockholder, (x) any Person owning or controlling ten percent (10%) or more of the outstanding voting securities of such stockholder, (y) any officer, director or general partner of such stockholder, or (z) any Person who is an officer, director, general partner, trustee or holder of ten percent (10%) or more of the outstanding voting securities of any Person described in clauses (w) through (y) of this sentence; and (ii) "Person" means an individual, partnership, corporation, joint venture, association, trust, unincorporated association, other entity or association. For purposes hereof, "Sale of the Company" means a sale, transfer, assignment or other disposition (including by merger or -5- consolidation), of all of the outstanding stock of the Company, or of all or substantially all of the assets of the Company, a liquidation or dissolution of the Company. A "Sale of the Company" shall not include the consummation of a public offering of Common Stock of the Company or its affiliate pursuant to a registration statement or any transaction effected primarily to reincorporate the Company in another jurisdiction. (b) In the event of a termination of Employee's employment hereunder pursuant to Section 9.3(a), Employee shall be entitled to receive all accrued but unpaid (as of the effective date of such termination) Base Salary, Benefits and Other Compensation. All Base Salary and Benefits shall cease at the time of such termination, subject to the terms of any benefit or compensation plan then in force and applicable to Employee. Except as specifically set forth in this Section 9.3, the Company shall have no liability or obligation hereunder by reason of such termination. 9.4. Termination By Company Without Cause. (a) The Company may terminate Employee's employment hereunder at any time, for any reason, with or without cause, effective upon the date designated by the Company upon written notice to Employee: provided that, if such notice is given during the one hundred eighty (180) days immediately preceding the end of the Term, such date shall be at least sixty (60) day after the date of such notice. (b) In the event of a termination of Employee's employment hereunder pursuant to Section 9.4(a), Employee shall be entitled to receive all accrued but unpaid (as of the effective date of such termination) Base Salary, Benefits and Other Compensation, plus continuation of the current Base Salary and continuation of Benefits (including vesting of options and other Benefits) for the remaining portion of the Term. Except as specifically set forth in this Section 9.4, the Company shall have no liability or obligation hereunder by reason of such termination. 9.5. Termination By Employee (a) Employee may terminate Employee's employment hereunder at any time effective upon the date designated by Employee in written notice of the termination of his employment hereunder pursuant to this Section 9.5(a) (the "Request Date"); provided that, such date shall be at least sixty (60) days after the date of such notice. Notwithstanding the foregoing, upon receipt by the Company of such written notice of termination, the Company in its sole discretion, may deem such termination effective immediately (the "Accelerated Termination Date"). In the event the parties mutually agree to an alternative date of termination, that date shall be considered the Request Date. (b) In the event of a termination of Employee's employment hereunder pursuant to Section 9.5(a) hereof, Employee shall be entitled to receive all accrued but unpaid (as of the earlier of the Request Date or the Accelerated Termination Date) Base Salary, Benefits and Other Compensation. If the Company does not terminate the Employee immediately upon receipt of the termination notice and Employee performs his duties in a satisfactory manner, as determined in the sole discretion of the Company, until the Request Date, Employee shall also be entitled to an amount equal to one month's Base Salary (in effect at such time). Except as specifically set forth in this Section 9.5(b), all Base Salary, Benefits and Bonuses shall cease at the time of such termination. Except as specifically set forth in this Section 9.5, the Company shall have no liability or obligation hereunder by reason of such termination. 10. Other Agreements. Employee represents and warrants to the Company that: (a) There are no restrictions, agreements or understandings whatsoever to which Employee is a party which would prevent or make unlawful Employee's execution of this -6- Agreement or Employee's employment hereunder, or which is or would be inconsistent or in conflict with this Agreement or Employee's employment hereunder, or would prevent, limit or impair in any way the performance by Employee of his obligations hereunder, (b) That Employee's execution of this Agreement and Employee's employment hereunder shall not constitute a breach of any contract, agreement or understanding, oral or written, to which Employee is a party or by which Employee is bound, and (c) That Employee is free to execute this Agreement and to enter into the employ of the Company pursuant to the provisions set forth herein. (d) In the event they are still in effect, that Employee shall disclose the existence and terms of the restrictive covenants set forth in this Agreement to any employer that the Employee may work for during the term of this Agreement (which employment is not hereby authorized) or after the termination of the Employee's employment at the Company. 11. Survival of Provisions. The provisions of this Agreement set forth in Sections 6, 7, 8, 9 and 20 hereof shall survive the termination of Employee's employment hereunder. 11A. Indemnification The Company shall indemnify the Employee from and against any and all losses, costs, damages or expenses the Employee may sustain by reason of his employment hereunder in the same manner and to the same extent as the executive officers of the Company. 12. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Company and Employee and their respective successors, executors, administrators, heirs and/or permitted assigns; provided, however, that neither Employee nor the Company may make any assignments of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other party hereto, except that, without such consent, the Company may assign this Agreement to an Affiliate or any successor to all or substantially all of its assets and business by means of liquidation, dissolution, merger, consolidation, transfer of assets, or otherwise, provided that such successor assumes in writing all of the obligations of the Company under this Agreement, subject, however, to Employee's rights as to termination as provided in Section 9.5 hereof. 13. Notice. Any notice or communication required or permitted under this Agreement shall be made in writing and sent by certified or registered mail, return receipt requested, addressed as follows: If to Employee: Rex Lamb DocuTech, Inc. 5048 Rentworth Court Lincoln, NE 68516 With a copy to: Donald H. Bowman 1111 Lincoln Mall, Suite 360 Lincoln, NE 68506 If to Company: Bruce M. Gillis DocuNet Inc. 715 Matson's Ford Road Villanova, PA 19085 with a copy to: Barry M. Abelson Pepper, Hamilton & Scheetz LLP 3000 Two Logan Square 18th & Arch Streets Philadelphia, PA 19103 or to such other address as either party may from time to time duly specify by notice given to the other party in the manner specified above. 14. Entire Agreement; Amendments. This Agreement contains the entire agreement and understanding of the parties hereto relating to the subject matter hereof, and merges and supersedes all -7- prior and contemporaneous discussions, agreements and understandings of every nature between the parties hereto relating to the employment of Employee with the Company. This Agreement may not be changed or modified, except by an Agreement in writing signed by each of the parties hereto. 15. Waiver. The waiver of the breach of any term or provision of this Agreement shall not operate as or be construed to be a waiver of any other or subsequent breach of this Agreement. 16. Governing Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Nebraska. 17. Invalidity. In case any one or more of the provisions contained in this Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the validity of any other provision of this Agreement, and such provision(s) shall be deemed modified to the extent necessary to make it enforceable. 18. Section Headings. The section headings in this Agreement are for convenience only; they form no part of this Agreement and shall not affect its interpretation. 19. Number of Days. In computing the number of days for purposes of this Agreement, all days shall be counted, including Saturdays, Sundays and legal holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday or day which is a holiday in Philadelphia, Pennsylvania, then such final day shall be deemed to be the next day which is not a Saturday, Sunday or legal holiday. 20. Specific Enforcement; Extension of Period. (a) Employee acknowledges that the restrictions contained in Sections 6, 7, and 8 hereof are reasonable and necessary to protect the legitimate interests of the Company and its affiliates and that the Company would not have entered into this Agreement in the absence of such restrictions. Employee also acknowledges that any breach by him of Sections 6, 7, or 8 hereof will cause continuing and irreparable injury to the Company for which monetary damages would not be an adequate remedy. The Employee shall not, in any action or proceeding to enforce any of the provisions of this Agreement, assert the claim or defense that an adequate remedy at law exists. In the event of such breach by Employee, the Company shall have the right to enforce the provisions of Sections 6, 7, and 8 of this Agreement by seeking injunctive or other relief in any court, and this Agreement shall not in any way limit remedies of law or in equity otherwise available to the Company. If an action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief, reasonable attorneys' fees, costs and disbursements. In the event that the provisions of Sections 6, 7, or 8 hereof should ever be adjudicated to exceed the time, geographic, or other limitations permitted by applicable law in any applicable jurisdiction, then such provisions shall be deemed reformed in such jurisdiction to the maximum time, geographic, or other limitations permitted by applicable law. (b) In the event that Employee shall be in breach of any of the restrictions contained in Section 8 hereof, then the Restricted Period shall be extended for a period of time equal to the period of time that Employee is in breach of such restriction. 21. Arbitration. In the event that the parties are unable to resolve any disputes arising hereunder, such dispute shall be submitted for a binding determination by a neutral third party designated by the President of the Philadelphia office of the American Arbitration Association. 22. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall be deemed to be one and the same instrument. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first written above. ATTEST: DOCUNET INC. By: /s/ Andrew R. Bacas By: /s/ Bruce M. Gillis ------------------------ ---------------------------- Title: Secretary Title: Chief Executive Officer [CORPORATE SEAL] /s/ Rex Lamb ---------------------------- Rex Lamb -8- SCHEDULE A James Bunker Jane Semasko Gary Blackwelder Mitchell Taube Mark Creglow John Semasko David Crowder David C. Utz, Jr. Jeff Kalmon David Yezbak Rex Lamb Ovidio Pugnale -9- SCHEDULE B EMPLOYEE BENEFITS 1. Automobile: Automobile allowance comparable to the Similarly Situated Employees. 2. Vacation: 20 business days of vacation per year. 3. Major medical and hospitalization insurance: Major medical and hospitalization insurance and other benefits available through Company's cafeteria plan effected by the Company's contribution on behalf of Employee to Company's cafeteria plan in an amount equal to $150 per month. 4. Life Insurance: Policy with death benefit to Employee equal to two times initial Base Salary. 5. Expense Reimbursement: The Company will reimburse Employee for business trade and entertainment expenses normally reimbursed under the Company's general expense reimbursement policy, as may be in effect from time to time. 6. Other Benefits: Participation in 401(k) Plan, Supplemental Retirement Plan and Short-Term disability policy, and any other benefit plan which may be generally available to the class of employees of which Employee is employed. A-1 EX-10.25 4 CREDIT AGREEMENT EXHIBIT 10.25 CREDIT AGREEMENT BY AND AMONG IMAGEMAX, INC. AND SUBSIDIARIES AND CORESTATES BANK, N.A., FOR ITSELF AND AS AGENT AND ANY OTHER BANKS BECOMING PARTY As of MARCH 30, 1998 CREDIT AGREEMENT TABLE OF CONTENTS
PAGE ARTICLE I - DEFINITIONS................................................................ 1 Section 1.01. Definitions................................................. 1 Section 1.02. Other Definitional Provisions............................... 15 ARTICLE II - THE REVOLVING CREDIT FACILITY............................................. 16 Section 2.01. Amount and Nature of Revolving Credit Facility.................................................... 16 Section 2.02. Notes....................................................... 17 Section 2.03. Making of Revolving Credit Advances......................... 17 Section 2.04. Mandatory Prepayment........................................ 18 ARTICLE III - LETTERS OF CREDIT........................................................ 19 Section 3.01. Letter of Credit Facility................................... 19 Section 3.02. Letter of Credit Fees....................................... 20 ARTICLE IV - INTEREST RATE ELECTIONS AND INTEREST PERIODS AS TO REVOLVING CREDIT FACILITY........................................... 21 Section 4.01. Interest On Loan Balance.................................... 21 Section 4.02. Interest Rate Elections..................................... 22 Section 4.03. Interest Periods............................................ 23 Section 4.04. Procedures Applicable to Interest Rates..................... 24 Section 4.05. Applicable Margin and Certain Adjustments................................................. 24 Section 4.06. Special Provisions for LIBOR Loans.......................... 25 ARTICLE V - GENERAL MATTERS WITH RESPECT TO THE CREDIT FACILITY................................................................... 26 Section 5.01. Priority of Payments........................................ 26 Section 5.02. Computation of Interest..................................... 26 Section 5.03. General Provisions as to Payments and Prepayments................................................. 26 Section 5.04. Payment on Non-Business Day................................. 27 Section 5.05. Accounting Terms............................................ 27 Section 5.06. Reference to Time........................................... 28 Section 5.07. Default Rate................................................ 28 Section 5.08. Commitment Fee.............................................. 28 Section 5.09. Other Fees.................................................. 28 Section 5.10. The Banks' Reimbursements................................... 29 Section 5.11. Capital Adequacy............................................ 30 Section 5.12. Interest Laws............................................... 31
-i-
PAGE Section 5.13. No Deductions............................................... 31 Section 5.14. Yield Protection............................................ 32 Section 5.15. Illegality.................................................. 33 ARTICLE VI - CONDITIONS OF LENDING..................................................... 34 Section 6.01. Execution of Principal Loan Documents....................... 34 Section 6.02. Additional Collateral Documentation......................... 34 Section 6.03. Additional Loan Documentation............................... 35 Section 6.04. Financial Information....................................... 36 Section 6.05. Additional Conditions for Each Revolving Credit Advance.............................................. 36 ARTICLE VII - REPRESENTATIONS AND WARRANTIES........................................... 37 Section 7.01. Organization and Authority.................................. 37 Section 7.02. Authorization and Binding Nature of Loan Documents................................................... 37 Section 7.03. No Conflicts................................................ 38 Section 7.04. Consents.................................................... 39 Section 7.05. Financial Information....................................... 40 Section 7.06. Absence of Certain Developments............................. 41 Section 7.07. Material Leases and Contracts............................... 42 Section 7.08. ERISA Matters............................................... 42 Section 7.09. Litigation.................................................. 44 Section 7.10. Tax and Other Returns and Reports........................... 45 Section 7.11. Absence of Undisclosed Liabilities.......................... 45 Section 7.12. Affiliate Agreements........................................ 46 Section 7.13. Personal Property........................................... 46 Section 7.14. Real Property............................................... 46 Section 7.15. Intellectual Property....................................... 47 Section 7.16. Laws and Permits; Environmental Protection.................................................. 48 Section 7.17. Insurance................................................... 48 Section 7.18. Employee Relations.......................................... 49 Section 7.19. Adequacy of Assets.......................................... 49 Section 7.20. Regulation U................................................ 49 Section 7.21. Year 2000 Compliance........................................ 49 Section 7.22. Full Disclosure............................................. 50 ARTICLE VIII - AFFIRMATIVE COVENANTS................................................... 50 Section 8.01. Corporate Existence, Properties, Etc........................ 50 Section 8.02. Payment of Indebtedness, Taxes, Etc......................... 51 Section 8.03. Statements, Reports and Certificates to be Delivered by Borrower.................................... 51 Section 8.04. Other Reports and Notices................................... 54 Section 8.05. ERISA Reports............................................... 55 Section 8.06. Additional Uniform Commercial Code Searches.................................................... 56
-ii-
PAGE Section 8.07. Formation of Company Affiliates............................. 56 Section 8.08. Bank Accounts............................................... 56 ARTICLE IX - NEGATIVE COVENANTS........................................................ 57 Section 9.01. Minimum Cash Flow........................................... 57 Section 9.02. Ratio of Funded Debt to Cash Flow........................... 57 Section 9.03. Cash Flow Coverage.......................................... 58 Section 9.04. Capitalization.............................................. 58 Section 9.05. Employee Plans.............................................. 58 Section 9.06. Indebtedness................................................ 59 Section 9.07. Guaranties.................................................. 59 Section 9.08. Negative Pledge............................................. 59 Section 9.09. Corporate Reorganizations................................... 61 Section 9.10. Restriction on Acquisitions................................. 61 Section 9.11. Disposition of Assets....................................... 65 Section 9.12. Loans, Investments, Etc..................................... 65 Section 9.13. Sales and Leasebacks........................................ 65 Section 9.14. Payments and Distributions to Affiliates.................................................. 66 Section 9.15. Lines of Business........................................... 67 ARTICLE X - DEFAULT AND REMEDIES....................................................... 67 Section 10.01. Default..................................................... 67 Section 10.02. Remedies.................................................... 70 Section 10.03. Remedies Cumulative......................................... 72 Section 10.04. Remedies Not Waived......................................... 72 ARTICLE XI - THE AGENT................................................................. 72 Section 11.01. Appointment and Authority of Agent.......................... 72 Section 11.02. Responsibilities of Agent................................... 75 Section 11.03. Indemnification of Agent.................................... 77 Section 11.04. Sharing of Set-Offs......................................... 78 Section 11.05. Option to Purchase.......................................... 79 ARTICLE XII - MISCELLANEOUS............................................................ 80 Section 12.01. Right of Set-Off............................................ 80 Section 12.02. No Discharge................................................ 81 Section 12.03. Amendment; Waiver........................................... 81 Section 12.04. Severability................................................ 82 Section 12.05. Borrower Assignees.......................................... 82 Section 12.06. Bank Assignees; Participations.............................. 82 Section 12.07. Governing Law............................................... 83 Section 12.08. Headings.................................................... 83 Section 12.09. Notices..................................................... 84 Section 12.10. Survival of Agreement....................................... 84 Section 12.11. Counterparts................................................ 84 Section 12.12. Canceled Notes.............................................. 84
-iii-
PAGE Section 12.13. Conflicts Among Loan Documents; Merger...................... 84 Section 12.14. Appointment and Authorization of Borrowing Agent............................................. 84 Section 12.15. Joinder of Additional Company Affiliates.................................................. 85 Section 12.16. Jurisdiction and Venue...................................... 85 Section 12.17. Waiver of Jury Trial........................................ 85
-iv- EXHIBITS Responsible Party 2.01 - Banks and Ratable Shares MMWR 2.02 - Form of Revolving Credit Note MMWR 2.03 - Credit Request MMWR 3.01 - Master Letter of Credit Agreement CoreStates 4.02 - Interest Rate Election Notice MMWR 7.01 - Organization and Authority BOR 7.03 - No Conflicts BOR 7.07 - Material Leases and Contracts BOR 7.08 - ERISA Matters BOR 7.09 - Litigation; Compliance With Law BOR 7.10 - Tax and Other Returns and Reports BOR 7.11 - Absence of Undisclosed Liabilities BOR 7.12 - Affiliate Agreements BOR 7.14 - Real Property BOR 7.15 - Intellectual Property BOR 7.17 - Insurance BOR 7.21 - Year 2000 Compliance BOR 8.03 - Compliance Certificate MMWR 9.08 - Permitted Liens BOR 9.10A - Pending Acquisitions BOR 9.10B - Subordination Provisions MMWR 9.10C - Due Diligence Checklist BOR -v- CREDIT AGREEMENT CREDIT AGREEMENT (the "Agreement") dated as of the 30th day of March, 1998 by and among IMAGEMAX, INC., a Pennsylvania corporation (referred to herein as the "Borrower"), each Subsidiary of Borrower now or hereafter becoming a signatory to this Agreement (referred to herein, with the Borrower, as the "Company Affiliates"), CORESTATES BANK, N.A., a national banking association for itself ("CoreStates"), and as agent hereunder (the "Agent") and any other bank becoming party to this Agreement, and their successors and assigns (Corestates in its individual capacity and such other banks, each referred to herein as a "Bank," or collectively, the "Banks"). W I T N E S S E T H: WHEREAS, the Borrower and its operating Subsidiaries provide document management and related services throughout the United States; and WHEREAS, the Borrower wishes to obtain and the Banks have agreed, subject to and in reliance on all of the provisions of this Agreement and the other Loan Documents, to provide up to $30,000,000 in a revolving credit facility (the "Credit Facility") to Borrower and, through the Borrower, to all of its operating Subsidiaries, for the financing of future acquisitions and for working capital, as further described in this Agreement; NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein contained, the Company Affiliates, jointly and severally, and the Banks and the Agent, severally but not jointly, intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS Section 1.01. Definitions. As used in this Agreement, the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined), and certain other terms shall have the meanings set forth elsewhere in this Agreement. "Account" shall have the meaning set forth in the Uniform Commercial Code. "Accountants" means Arthur Andersen LLP or such other independent certified public accountants of recognized standing selected by Borrower and approved by the Agent, such approval not to be unreasonably withheld, delayed or conditioned. "Acquisition" has the meaning set forth in Section 9.10. "Acquisition Facility" has the meaning set forth in Section 2.01. "Adjusted Cash Flow" means the sum of (a) Cash Flow, and (b) any portion of historical salaries, bonuses, withdrawals, rent adjustments and other non-recurring expenses of an acquired company which will not be paid or payable after such company becomes a Company Affiliate. "Adjusted LIBOR Rate" means (a) the LIBOR Rate divided by the difference between 1.00 and the Eurocurrency Reserve Requirement, if any, plus (b) the Applicable Margin. "Affiliate" means, as to any specified Person, any Person that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Person specified. "Agent" means CoreStates Bank, N.A. in its capacity as agent for the Banks hereunder, its successors and assigns, and any other Person acting as agent hereunder. "Agreement" or "Credit Agreement" means this Credit Agreement as the same may be amended, modified or supplemented from time to time. "Applicable Margin" has the meaning given to such term in Section 4.05 hereof. "Bank" means CoreStates Bank, N.A. in its individual capacity and any other financial institution becoming party to this Agreement, and the successors and assigns of the foregoing. "Base Rate" means an annual interest rate equal to the greater of: (a) the Prime Rate or (b) one-half of one percent (1/2 of 1%) in excess of the Federal Funds Rate; such rate to change immediately upon and in accordance with any change in the Prime Rate or the Federal Funds Rate, as the case may be. -2- "Base Rate Interest Period" means any period of time during which the Interest Rate on a Loan is calculated with reference to the Base Rate. "Base Rate Loan" is that portion of the Revolving Credit Balance for which the Base Rate is elected or applicable. "Borrower Plan" means any Plan maintained or contributed to by the Borrower and/or a Related Party now or prior to the termination of the Loan, or any Plan under which Borrower or any Related Party has an obligation now or prior to the termination of the Loan to any Person (including current and former employees), including without limitation, those Plans listed on Exhibit 7.08. "Business Day" means any day except a Saturday, Sunday or any other day on which commercial banks in Philadelphia, Pennsylvania, or in any other city in which a Bank's headquarters are located, are authorized or required by law to close and, if the applicable day relates to a LIBOR Loan, LIBOR Interest Period, or notice with respect to a LIBOR Loan, a day on which dealings in Dollar deposits are also carried on in the London Interbank Market and banks are open for business in London. "Capital Expenditures" means, for any period, expenditures for any fixed assets or improvements, replacements, substitutions or additions thereto, which have a useful life of more than one (1) year, including without limitation assets acquired pursuant to a Capital Lease. "Capital Lease" means any lease for property, real, personal or mixed, under which such Person is the lessee and which, in accordance with GAAP, is or should be capitalized on the books of such Person. "Capitalization" means, at any date of determination, book net worth, minus existing Loans and advances to Affiliates and guaranties of Liabilities of Affiliates other than Company Affiliates, plus debt subordinated to the Obligations on terms satisfactory to the Banks (including Permitted Seller Notes). "Cash Flow" for any period means net income before taxes and extraordinary gains or losses, plus interest expense, plus depreciation, plus amortization. "Closing" means the consummation of the initial transactions contemplated hereby on the date hereof. -3- "Closing Date" means the date on which the Closing is held. "Code" means the Internal Revenue Code of 1986, as amended, and all rules and regulations thereunder in effect from time to time. "Collateral" has the meaning given to such term in Section 6.01 hereof. "Company Affiliate" means the Borrower and any other present or future Subsidiary of Borrower. "Compliance Certificate" means a certificate in the form attached hereto as Exhibit 8.03, to be given to the Agent by the Borrower signed by its Chief Financial Officer or Chief Executive Officer to certify compliance with the terms hereof. "Consideration" means "cost basis" as defined in ss.1012 of the Code. "Consolidated" with reference to financial information shall mean such financial information of all Company Affiliates, on a consolidated basis in accordance with GAAP. "Credit Request" has the meaning given in Section 2.03 hereof and shall be substantially in the form of Exhibit 2.03 hereto with respect to Revolving Credit Advances. "Confirmations" has the meaning given to such term in Section 9.10 hereof. "Current Liabilities" means, at any date, all Liabilities (including deferred charges and provision for income taxes but not including life insurance policies or the Revolving Credit Balance) which would, in accordance with GAAP, after eliminating all intercompany transactions, be classified as current liabilities, but in any event such term shall include but not be limited to, Current Maturities. "Current Maturities" means, at any date, such portion of Funded Debt which is outstanding on such date and under the provisions applicable thereto matures on demand or within one year from such date and may not, directly or indirectly, be renewed, extended, or refunded, so as to be outstanding more than one year after such date (but not including the Revolving Credit Balance). -4- "Default" has the meaning given to such term in Section 10.01 hereof. "Default Rate" means the interest rate set forth in Section 5.07 hereof. "Distributable Share" of any Bank means the percentage obtained by dividing the dollar amount of the Obligations owing to such Bank (as a Bank or as Agent) in connection with this Agreement by the dollar amount of all such Obligations owing to all of the Banks (as a Bank or as Agent). "DOL" means the United States Department of Labor. "Effective Date" means the date of disbursement of a Loan, or, if the Loan has already been disbursed, the date the Borrower designates as the date on which a Base Rate Interest Period or a LIBOR Interest Period is to commence, all as provided in Article IV hereof. "Eligible Accounts" means the aggregate without duplication of all invoiced Accounts of a Company Affiliate arising from the sale of goods or services by the Company Affiliate, which are not more than ninety (90) days past due date or one hundred twenty (120) days past invoice date, each of which meets all of the following specifications: (a) it is lawfully owned by the Company Affiliate and subject to no lien, security interest or prior assignment other than the liens created hereunder, and the Company Affiliate has the right of assignment thereof and the power to grant a security interest therein; (b) it is a valid and enforceable Account, representing the undisputed indebtedness of an Account debtor; (c) it is not subject to any defense, set-off, counter-claim, contra account, credit, deposit, allowance or adjustment; (d) it has not arisen with respect to goods or services of which any substantial part has been returned, rejected, lost or damaged; (e) it arose from an absolute sale and not on consignment or on approval or on a sale-or-return basis nor subject to any other repurchase or return agreement, and such -5- goods or services have been shipped or provided to the Account debtor; (f) if it is due from an Account debtor located outside of the United States or Canada, it is supported by an irrevocable letter of credit payable in United States currency and issued by a bank acceptable to the Agent; provided that, Eligible Accounts due from Account debtors located in Canada may not exceed ten percent (10%) of all Eligible Accounts, except to the extent supported by letters of credit as provided in this subsection; (g) it arose in the ordinary course of the business of the Company Affiliate and it is an operating Subsidiary of Borrower; (h) it is not the obligation of an Account debtor which the Company Affiliate or the Banks reasonably and in good faith believe is in bankruptcy, receivership, reorganization, is insolvent, or is unable generally to pay its debts as they mature; (i) the Account debtor with respect thereto is not an affiliate of the Company Affiliate and does not control, and is not under the control of, or under common control with, the Company Affiliate; (j) it is otherwise of a credit quality acceptable to the Banks, in their reasonable and good faith determination, taking into consideration the credit quality of the Account debtor and the Account debtor's history of payment; (k) it is not due from an Account debtor which owes, or which is affiliated with an Account debtor which owes, Accounts to any Company Affiliate, fifty percent (50%) of which in the aggregate are not Eligible Accounts; (l) if the Account debtor is the United States of America, any state or any municipality, or any department, agency or instrumentality thereof, the Company Affiliate has, with respect to such Accounts, complied with the Federal Assignment of claims Act (31 U.S.C. Section 3727) or any applicable statute or municipal ordinance of similar purpose and effect; (m) if evidenced by an "instrument" or "chattel paper" (as defined in the UCC), the same is in the possession of Agent, on behalf of Agent and the Banks; -6- (n) Agent, on behalf of Agent and the Banks, has a valid, first priority and fully perfected security interest thereon and it is subject to no other Lien except Permitted Liens; (o) it is due from a customer whose total Accounts owed to all Company Affiliates do not exceed in the aggregate an amount equal at any time to ten percent (10%) of the aggregate of all Company Affiliates' Accounts at such time; and (p) it is not an Account with respect to which the customer is a creditor of any Company Affiliate, provided that any such Account shall only be ineligible as to that portion of such Account which is less than or equal to the amount owed by a Borrower to such Person. "Environmental Laws" means all laws relating to pollution or protection of the environment, including laws relating to emissions, discharges, releases or threatened releases of hazardous substances, materials or wastes (including, without limitation, petroleum products, petroleum wastes and petroleum derivatives) (collectively, "Hazardous Wastes"), into the environment (including, without limitation, ambient air, surface water, ground water, or land), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of Hazardous Wastes. "ERISA" means the Employee Retirement Income Security Act of 1974, as amended from time to time, and all rules and regulations thereunder in effect from time to time. "Eurocurrency Reserve Requirement" means, for any LIBOR Loan for any LIBOR Interest Period relating thereto, the daily average of the stated maximum rate (expressed as a decimal) at which reserves (including any marginal, supplemental, or emergency reserves) are required to be maintained during such LIBOR Interest Period under Regulation D by member banks of the Federal Reserve System for new non-personal time deposits in the amount of $100,000 or more and with a maturity comparable to the LIBOR Interest Period of such LIBOR Loan. Without limiting the effect of the foregoing, the Eurocurrency Reserve Requirement shall reflect any other reserves required to be maintained by such member bank against any category of liabilities which includes deposits by reference to which the LIBOR Interest Rate for LIBOR Loans is to be determined; or any category of extension of credit or other assets that include LIBOR Loans. -7- "Event of Default" means any event which would, with the giving of notice or expiration of time periods, become a Default if uncured. "Failed Bank" has the meaning given to such term in Section 11.05(a) hereof. "Federal Funds Rate" means, for any date such rate is being calculated, the rate for over-night Federal funds, in amounts of $1,000,000 or more, quoted in Publication H-15 for such day or, if such is unavailable, then the rate quoted for overnight federal funds for such day in The Wall Street Journal. "Financial Statements" means the financial statements, including the notes thereto, referred to in Section 7.05. "Fixed Charges" for any period means the sum of Total Debt Service, plus all taxes paid in cash, plus all non-financed Capital Expenditures. "Funded Debt" means all Indebtedness that has a final maturity more than one (1) year after the date of creation thereof (or which is renewable or extendable at the option of the debtors to a date more than one (1) year from said date of creation), including without limitation all sale and leaseback payments and all final and serial maturities, prepayments and sinking fund payments required to be made one (1) year or less after the date of determination thereof (notwithstanding the fact that any amount thereof is at the time also included in Current Liabilities under GAAP), but excluding Permitted Seller Notes. "GAAP" means generally accepted accounting principles, consistently applied. "Governmental Authority" means any federal, state, or local agency, board, commission, department, court or other authority. "Head Office" means the office of the Agent at Broad and Chestnut Streets, Philadelphia, Pennsylvania 19107-7618, or such other address as may be designated by the Agent in writing to Borrower from time to time. "Indebtedness" means, without duplication: (a) (i) long-term indebtedness, (ii) deferred taxes and reserves, (iii) indebtedness, obligations and -8- liabilities for borrowed money or for the deferred purchase price of property, (iv) lease obligations that, in conformity with GAAP, have been or should be capitalized on such balance sheet, (v) all indebtedness, obligations and liabilities secured by any lien, mortgage, charge, encumbrance or security interest on any property even though the owner has not assumed or otherwise become liable for the payment thereof, and (vi) all obligations to purchase goods, property or services where payment therefor is required regardless of whether delivery of such goods or property or the performance of such services is ever made or tendered; (b) all guarantees (whether by discount or otherwise), endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations in respect of, or to purchase or otherwise acquire or become liable upon, indebtedness, obligations or liabilities of others, including without limitation surety bonds; and (c) all obligations or liabilities under or pursuant to any letter of credit, surety bonds or similar obligations. "Intangibles" means, as of the date of any determination thereof, the total amount of goodwill, patents, non-compete agreements, restrictive covenants, trade names, trademarks, copyrights, franchise, experimental expense, organization expense, unamortized debt discount and expense, the excess of cost of shares acquired over book value of related assets and such other assets as are properly classified as "intangible assets" in accordance with GAAP. "Intellectual Property" means all intellectual property and related rights (whether or not currently being used in its business), including without limitation, patents and applications therefor, confidential or proprietary information, know-how, trade secrets, secret formulas, technical information, computer software, programs, source code, object code, tapes, disks and related materials, business and marketing plans, customer lists, registrations and applications therefor, copyrights registrations and applications therefor, trademarks, service marks, trade names and all names and slogans used or usable by a Person in connection with its business or any of its activities, products or services, and all goodwill related to the foregoing. "Interest Period" means a Base Rate Interest Period or a LIBOR Rate Interest Period. -9- "Interest Rate" means the Base Rate or Adjusted LIBOR Rate. "Interest Rate Election Notice" means a notice substantially in the form of Exhibit 4.02 hereto duly executed by an officer of Borrower. "Investment" means any loan or advance to, or purchase or acquisition of the securities or obligations of, any Person or the assumption of any liability of another Person which, in each case, did not arise from sales to such Person in the ordinary course of business. "IRS" means the Internal Revenue Service. "Knowledge" shall mean (whether or not capitalized), with respect to any representation, warranty or statement of any party in this Agreement that is qualified by such party's knowledge or best knowledge, the actual knowledge of such party or, in the case of an entity, the actual knowledge of any officer, director or manager of such entity, in any case, after reasonable inquiry and investigation. "Laws" means and with all federal, state and local laws, regulations, ordinances, rules, orders, judgments, legislation and other promulgations by a Governmental Authority. "Letter of Credit" and related terms shall have the meanings set forth in Article III. "Liabilities" means, at any date, all liabilities in accordance with GAAP, after eliminating all intercompany transactions, which should in conformity with GAAP be classified as liabilities and as such should be included on a balance sheet, including without limitation: (a) Current Liabilities, (b) long-term indebtedness, (c) deferred taxes and reserves, (d) indebtedness, obligations and liabilities for borrowed money or for the deferred purchase price of property, and (e) Capital Leases. "LIBOR Interest Period" means any period for which a LIBOR Rate is in effect, as set forth in Section 4.02 hereof. "LIBOR Loan" means that portion of the Revolving Credit Balance for which an Adjusted LIBOR Rate is elected. -10- "LIBOR Rate" means for any Interest Period, the rate of interest per annum (rounded upwards, if necessary, to the next 1/16th of one percent) at which the Agent is offered deposits of United States Dollars in the London Interbank Market on or about 11:00 a.m. London time, two (2) Business Days prior to the commencement of an Interest Period for amounts and maturities substantially similar to the outstanding principal amount as to which an Adjusted LIBOR Rate is applicable (and fixed for such Interest Period) and with a maturity of comparable duration to the Interest Period selected. "Lien" means any mortgage, deed of trust, pledge, security interest, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), or preference, priority, or other security agreement or preferential arrangement, charge or encumbrance of any kind or nature whatsoever (including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the recording of any mortgage or deed of trust or the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction to evidence any of the foregoing). "Loan" means any loan made pursuant to the Credit Facility. "Loan Balance" means the Revolving Credit Balance. "Loan Documents" means this Agreement and the Notes, Surety Agreement, Subrogation and Contribution Agreement, Security and Pledge Agreement, Subordination Agreement, Mortgages, the financing statements filed with respect to the Collateral, and all certificates, agreements, instruments, exhibits and other documents now or hereafter delivered or to be delivered by any Company Affiliate to the Agent or the Banks in connection with this Agreement, all as amended, restated, supplemented or otherwise modified from time to time. "Material Adverse Effect" means a material adverse effect on the financial or other condition, business or operations of the Company Affiliates taken as a whole. "Mortgages" means any mortgage or deed of trust executed by any Company Affiliate on, before or after the date hereof, as joined, amended or modified from time to time. -11- "Multiemployer Plan" means any Plan which is a "multiemployer plan" within the meaning of Section 3(37) of ERISA. "Notes" means the Revolving Credit Notes evidencing the Borrower's obligation to repay the Revolving Credit Balance in the form of Exhibit 2.02 hereto. "Obligations" means the aggregate, without duplication, of all of the following, whether absolute or contingent, matured or unmatured, direct or indirect, choate or inchoate, sole, joint, several or joint and several, similar or dissimilar, related or unrelated, due or to become due, heretofore or hereafter contracted or acquired, whether for principal, interest (including, without limitation, interest accruing after the filing of a petition initiating any insolvency proceeding whether or not such interest accrues after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), fees, expenses, premium, penalty or otherwise: (i) Borrower's obligations under the Notes and any renewals, extensions or modifications thereof, (ii) all obligations and liabilities of any Company Affiliate hereunder or under any other Loan Document, including without limitation those referenced in Article VI hereof, and (iii) all existing and future obligations or liabilities of any Company Affiliate to the Agent or the Banks under this Agreement or the other Loan Documents, or any amendment, extension, modification, increase, renewal, refinancing or refunding thereof, whether absolute or contingent, related or unrelated, regardless of their source or nature and out of whatever transaction arising. "Other Banks" has the meaning given to such term in Section 11.04 hereof. "Participants" has the meaning given to such term in Section 12.06(a) hereof. "Participation" has the meaning given to such term in Section 12.06(a) hereof. "PBGC" means the Pension Benefit Guaranty Corporation. "Pension Benefit Plan" means any Plan which is an "employee pension benefit plan", within the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan. -12- "Permit" means any permit, license, registration, notice, filing or other authorization required to be obtained from or given by or to any Governmental Authority. "Permitted Acquisition" has the meaning given to that term in Section 9.10 hereof. "Permitted Liens" has the meaning given to that term in Section 9.08 hereof. "Permitted Seller Notes" has the meaning given in Section 9.10. "Person" means an individual, corporation, limited liability company, partnership, trust, estate, incorporated or unincorporated association, joint venture, joint stock company, government (or an agency, political subdivision or instrumentality thereof) or other entity of any kind. "Plan" means any "employee benefit plan," within the meaning of Section 3(3) of ERISA, as well as any other employee benefit, compensation or welfare plan, program, practice, policy, agreement or arrangement, whether formal or informal. "Prime Rate" means the interest rate which is announced by the Agent from time to time as its prime rate; the use of such term shall not imply that such rate is the lowest or best rate offered by the Agent. "Ratable Share" of any Bank means such Bank's share of the Credit Facility as set forth in Exhibit 2.01 hereto. "Registration Statement" has the meaning set forth in Section 7.05. "Regulatory Change" means, with respect to any Person, any adoption or change occurring after the date of this Agreement in or of any domestic or foreign law applicable to such Person; or regulation, interpretation, directive or request (whether or not having the force of law) applicable to such Person of any court or Governmental Authority charged with the interpretation or administration of any law referred to in this clause or of any fiscal, monetary, central bank or other authority having jurisdiction over such Person. "Related Party" means any trade or business, whether or not incorporated, which, together with Borrower, is under common -13- control or is otherwise described in Section 414(b), (c), (m), or (o) of the Code. "Repayment" has the meaning given to such term in Section 11.06 hereof. "Reportable Event" has the meaning assigned to such term in Section 4043(b) of ERISA or regulations issued thereunder, other than a reportable event for which the thirty (30) day notice requirement to the Pension Benefit Guaranty Corporation has been waived pursuant to Section 4043(a) of ERISA. "Required Banks" means: (a) if the Agent, as a Bank, holds aggregate Ratable Shares of sixty-six and two-thirds percent (66 2/3%) or more, then all of the Banks, or (b) otherwise, then Banks holding aggregate Ratable Shares of at least sixty-six and two thirds percent (66 2/3%); provided that, any Bank in default of its obligations under this Agreement will not be counted for purposes of determining the Required Banks. "Revolving Credit Advance" means any advance made to Borrower under the Credit Facility pursuant to Article II hereof. "Revolving Credit Balance" has the meaning given to such term in Section 2.01(c) hereof. "Revolving Credit Facility" or "Credit Facility" means the maximum aggregate revolving credit facility of $30,000,000 made available under Article II until the Termination Date. "Revolving Credit Limits" has the meaning set forth in Section 2.01(a). "Senior Liens" means Permitted Liens described in subsections 9.08(b), (f) and (i). "Security and Pledge Agreement" means the Security and Pledge Agreement executed by the Company Affiliates, on the date hereof, as joined, amended, or modified from time to time. "Senior Management" shall mean the Chairman, President, Chief Executive Officer, Chief Financial Officer and Senior Vice President of Corporate Development of Borrower. "Sharing Bank" has the meaning given to such term in Section 11.04 hereof. -14- "Subrogation and Contribution Agreement" means the subrogation and contribution agreement executed by the Company Affiliates on the date hereof, as joined, amended or modified from time to time. "Subsidiary" means any Person of which the Borrower now or hereafter, directly or indirectly, owns or controls more than fifty percent (50%) of the voting power. "Surety Agreement" means the Surety Agreement executed by each Company Affiliate on the date hereof, as joined, amended or modified from time to time. "Termination Date" means the earlier of the fifth (5th) anniversary of the Closing Date or December 31, 2002. "Total Debt Service" means interest expense for the period of calculation, plus Current Maturities of long term debt due in the subsequent period of calculation for borrowings under notes, Capital Leases and other contractual Indebtedness. "Uniform Commercial Code" means the Uniform Commercial Code as enacted from time to time in the Commonwealth of Pennsylvania or such jurisdiction the law of which governs to the extent set forth in 13 Pa.C.S.A. ss.9103. "Voting Shares" means, with respect to any corporation, association or business entity, any and all shares of capital stock, partnership interests or other ownership interests of such corporation, association or other business entity of any class or classes (however designated), the holders of which are at the time entitled to vote for the election of the directors (or persons performing similar functions) of such corporation, association or other business entity, whether or not the right so to vote exists by reason of the happening of a contingency. "Welfare Benefit Plan" means any "employee welfare benefit plan" within the meaning of Section 3(l) of ERISA, including any "multiple employer welfare arrangement" within the meaning of Section 3(40) of ERISA. "Working Capital Facility" has the meaning set forth in Section 2.01. Section 1.02. Other Definitional Provisions. References to "Sections", "subsections", "Exhibits" and "Schedules" shall be to Sections, subsections, Exhibits and -15- Schedules, respectively, of this Agreement unless otherwise specifically provided. Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural depending on the reference. In this Agreement, words importing any gender include the other genders; the words "including," "includes" and "include" shall be deemed to be followed by the words "without limitation"; references to agreements and other contractual instruments shall be deemed to include subsequent amendments, assignments, and other modifications thereto, but only to the extent such amendments, assignments and other modifications are not prohibited by the terms of this Agreement or any other Loan Document; references to Persons include their respective permitted successors and assigns or, in the case of governmental Persons, Persons succeeding to the relevant functions of such persons; and all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations. ARTICLE II THE REVOLVING CREDIT FACILITY Section 2.01. Amount and Nature of Revolving Credit Facility. (a) Subject to the terms and conditions of this Agreement, and in particular Section 2.04 and 9.10, and to the other Loan Documents, and in reliance upon the representations, warranties and covenants herein and therein contained, each Bank severally (but not jointly) agrees to make a Revolving Credit Facility available to Borrower and through the Borrower, to each of its operating Subsidiaries, in an aggregate principal amount not to exceed such Bank's Ratable Share of $30,000,000, divided into: (i) an acquisition facility not to exceed $25,000,000 (the "Acquisition Facility"), and (ii) a working capital facility not to exceed the lesser of (A) $5,000,000 or (B) 80% of the amount of the Eligible Accounts of the Company Affiliates (the "Working Capital Facility"). (the various limitations required in this subsection (a) being herein referred to as the "Revolving Credit Limits"). -16- (b) Borrower and its Subsidiaries shall use the proceeds of the Acquisition Facility only to finance Permitted Acquisitions and shall use the Working Capital Facility only for working capital, Capital Expenditures permitted hereunder, and general corporate purposes; provided that, the Working Capital Facility may also be used for Permitted Acquisitions. (c) Borrower may borrow, repay, reborrow under the Revolving Credit Facility at any time and from time to time subject at all times to the Revolving Credit Limits, but only until the Termination Date, at which time the Revolving Credit Facility shall terminate, and the entire unpaid principal balance outstanding under the Revolving Credit Facility (the "Revolving Credit Balance") shall be repaid to the Agent for the account of the Banks, together with accrued interest. Borrower shall pay to the Agent for the account of the Banks interest on the Revolving Credit Balance from the date hereof until paid in full, payable in arrears in accordance with Article IV hereof. Section 2.02. Notes. (a) The obligation of the Borrower to repay the Revolving Credit Balance shall be evidenced by separate Notes of the Borrower, payable to the order of the Agent for the benefit of the Banks, in accordance with their respective Ratable Shares, such Notes to be in the aggregate principal amount of $30,000,000 and otherwise in the form of Exhibit 2.02 attached hereto. (b) The Agent shall either record on the Notes or on schedules thereto the date and amount of each Revolving Credit Advance and the date and amount of each payment of principal made with respect thereto, or shall maintain computer or other records reflecting such information. The records of the Agent with respect to the foregoing information shall be presumed to be correct absent manifest error. Section 2.03. Making of Revolving Credit Advances. (a) Borrower may, by telephone or telefax, request a Revolving Credit Advance from the Banks on behalf of one or more operating Company Affiliates, in an aggregate principal amount of $250,000 or a multiple of $50,000 in excess thereof, if under the Working Capital Facility, and in an aggregate principal amount of $250,000 or a multiple of $50,000 in excess thereof, if under the Acquisition Facility. This -17- request shall be promptly confirmed in writing by the submission of a Credit Request, in the form attached hereto as Exhibit 2.03(a "Credit Request"). Borrower shall notify the Agent no later than 11:00 a.m., Philadelphia time: (i) On the day, which must be a Business Day, of each proposed Revolving Credit Advance to be made as a Base Rate Loan, specifying the date and amount of the proposed Base Rate Loan, and the Agent shall promptly notify each other Bank of the proposed Base Rate Loan; and (ii) At least three Business Days before the borrowing date for each proposed Revolving Credit Advance to be made as a LIBOR Loan, specifying the date and the amount of the proposed LIBOR Loan and the length of the proposed LIBOR Interest Period, and the Agent shall in turn promptly notify each other Bank of the proposed LIBOR Loan. (b) By 2:00 p.m., Philadelphia time, on the borrowing date for each proposed Revolving Credit Advance each Bank shall make available to the Agent, at Broad and Chestnut Streets, Philadelphia, Pennsylvania, in funds immediately available to the Agent, such Bank's Ratable Share of such Revolving Credit Advance. Upon receipt of such funds by the Agent and upon the Borrower's fulfillment of the applicable conditions set forth in Article VI hereof, the Agent will immediately make such funds available to the Borrower. The Agent shall have no obligation to make funds available to the Borrower in excess of amounts received by it from the Banks; provided, however, that if one or more Banks fail to make available to the Agent such Bank's Ratable Share of such Revolving Credit Advance and the Agent in its discretion elects to advance the full amount of the Revolving Credit Advance requested by the Borrower, the Borrower shall be obligated to repay to the Agent for the Agent's account the amount, with interest, so advanced by the Agent and not advanced by the Bank(s) in amounts and at the times the Borrower otherwise would be obligated to repay such Revolving Credit Advance. Section 2.04. Mandatory Prepayment. (a) Notwithstanding Section 2.01, Borrower shall prepay the Revolving Loan Balance, in accordance with the Distributable Shares of the Banks, payable within three (3) Business Days after receipt by any Company Affiliate, in an amount equal to all net proceeds after fees and expenses received in cash, cash equivalents, cash payments on promissory notes or cash payments on other instruments providing for deferred payments (such notes and instruments being required to be pledged -18- to the Agent immediately upon issuance) from: (i) the sale, conveyance, transfer or other disposition for $50,000 or more of assets, properties or rights other than in the ordinary course of business to a party other than a Company Affiliate; or (ii) the sale or other issuance or exercise of any note, debenture, capital stock, option, warrant or other security of any Company Affiliate, in excess of $100,000 per fiscal year, other than as permitted by Section 9.06; or (iii) the sale of the property in Chesterton, Indiana, but only to the extent that such net proceeds exceed $1,000,000. (b) Nothing in this Section shall imply that any Company Affiliate is permitted to do or omit any act which would constitute a breach of any covenant in any Loan Document. (c) Each repayment under this Section will be allocated first to the Acquisition Facility and second to the Working Capital Facility. ARTICLE III LETTERS OF CREDIT Section 3.01. Letter of Credit Facility. (a) A Revolving Credit Advance under the Working Capital Facility may be made in the form of a standby or documentary letter of credit having an expiration date not more than 364 days after issuance and in any event prior to the Termination Date (each a "Letter of Credit"); provided that, the aggregate stated amounts of all outstanding Letters of Credit and all outstanding reimbursement Obligations with respect to Letters of Credit shall at no time exceed $2,000,000 and Borrower shall immediately pay to the Agent in cash the amount of any such excess. Borrower may request the issuance of a Letter of Credit by submission to the Agent of a Credit Request at least three (3) Business Days prior to issuance and any application or other document required by the Master Letter of Credit Agreement, which shall govern all matters relative to the Letters of Credit and shall be in the form attached hereto as Exhibit 3.01 (the "Master Letter of Credit Agreement"). Each Letter of Credit shall be for the purpose of issuance, in the ordinary course of business of Borrower. -19- (b) In the event of a draw on a Letter of Credit, Borrower shall automatically be deemed to have requested, as of the immediately preceding Business Day, a Revolving Credit Advance in cash and in an amount equal to such draw, but if such an advance is not otherwise available under the terms of this Agreement, Borrower shall immediately pay to the Agent an amount equal to the amount of the draw. Each Bank hereby automatically and irrevocably purchases a participation, in accordance with its Ratable Share, in all Letters of Credit. In the event of any draw under a Letter of Credit which is not immediately reimbursed to the Agent by the Borrower, by the making of a cash Revolving Credit Advance or otherwise, or if any reimbursement received by the Agent from the Borrower is or must be returned or rescinded upon or during any bankruptcy or reorganization of Borrower or otherwise, each Bank shall immediately pay to the Agent, in immediately available funds, such Bank's Ratable Share of such draw. (c) For all purposes the Master Letter of Credit Agreement and all documents relating thereto shall be deemed Loan Documents, all obligations thereunder and under this Section shall be deemed part of the Obligations, the issuance of a Letter of Credit shall be deemed a Revolving Credit Advance, and the term "Revolving Credit Balance" shall include all outstanding Obligations relating to the Letters of Credit and the aggregate stated amount of outstanding Letters of Credit (except for purposes of calculating interest under Article IV), and any repayment obligation under this Agreement shall include payment to the Agent of cash Collateral for all outstanding Letters of Credit. Section 3.02. Letter of Credit Fees. The Borrower shall pay fees in respect of the Letters of Credit as set forth in the Master Letter of Credit Agreement and any related application or other documents and such other standard fees and amounts as the Agent shall customarily require in connection with the issuance, negotiation, processing and/or administration of Letters of Credit in similar situations. The Borrower also agrees to pay to the Agent for the account of the Banks in accordance with their Ratable Shares a non-refundable fee, immediately upon issuance of each Letter of Credit, equal to the face amount thereof multiplied by 2% if the Applicable Margin is 2.5%, 1.75% if the Applicable Margin is 2.0%, and 1.5% if the Applicable Margin is 1.5%, but in no event less than $100 per calendar quarter. -20- Section 3.03. Termination of Facility. On the occurrence of a Default and the continuance thereof, and on the Termination Date, (a) all Obligations with respect to the Letter of Credit shall be repaid to the Agent for the account of the Banks, (b) in the case of outstanding Letters of Credit, an amount equal to the aggregate stated amounts thereof shall be paid to the Agent in cash and held by the Agent as part of the Collateral, and (c) the Agent may refuse to issue any additional Letters of Credit. ARTICLE IV INTEREST RATE ELECTIONS AND INTEREST PERIODS AS TO REVOLVING CREDIT FACILITY Section 4.01. Interest On Loan Balance. (a) Borrower may elect, in accordance with the terms and conditions set forth herein, that Borrower shall pay interest on the Loan Balance or one or more portions thereof hereunder calculated in accordance with the Base Rate or the Adjusted LIBOR Rate. (b) Borrower shall pay to the Agent for the account of the Banks interest on the unpaid principal amount of the Loan Balance as follows: (i) For Base Rate Loans, for the period that begins on the applicable Effective Date and that ends on the last day of the Base Rate Interest Period, at an annual rate equal to the Base Rate, payable (A) in arrears on the last day of each fiscal quarter of Borrower, beginning on the first of such dates after the applicable Effective Date and (B) on the last day of the Base Rate Interest Period; and (ii) For LIBOR Loans, for the period that begins on the Effective Date and that ends on the last day of the LIBOR Interest Period, at an annual rate equal to the Adjusted LIBOR Rate applicable to the LIBOR Interest Period. Interest on LIBOR Revolving Loans shall be payable in arrears: (A) if the applicable LIBOR Interest Period is 1, 2 or 3 months long, on the last day of the LIBOR Interest Period, or (B) if the applicable LIBOR Interest Period is six (6) months long, (X) on the day that is three (3) months after the Effective Date and (Y) on the last day of the LIBOR Interest Period. -21- (c) Notwithstanding the above, the Loan Balance shall bear interest at the Base Rate except to the extent that Borrower elects, in accordance with Section 4.02 below, to pay interest on all or a portion of the Loan Balance at the Adjusted LIBOR Rate. Each LIBOR LOAN as to which Borrower has elected a LIBOR Rate shall continue to bear interest at such rate until the expiration of the Interest Period selected as being applicable thereto pursuant to Section 4.03. Section 4.02. Interest Rate Elections. (a) Subject to the terms and conditions set forth herein, Borrower may, by telephone or telefax (promptly confirmed in writing by an Interest Rate Election Notice delivered to the Agent, in the form attached as Exhibit 4.02 hereto), elect that the Loan Balance or one or more portions thereof bear a particular Interest Rate or be converted from one Interest Rate to another, or continue at the same Interest Rate. Such notice shall also specify the Interest Period elected by the Borrower for such balance or portion thereof. Each Interest Rate Election Notice shall be irrevocable and shall be delivered to the Agent not later than 11:00 A.M., Philadelphia time: (i) For a Base Rate Loan, on the same Business Day as the proposed Effective Date for such Base Rate Loan; and (ii) For a LIBOR Loan, at least three Business Days prior to the proposed Effective Date for such Loan. (b) To the extent possible consistent with Section 2.03(a): (i) Each Base Rate Loan shall be in an aggregate principal amount of $250,000 or a multiple of $50,000 in excess thereof, and any Base Rate Loan which is converted from a LIBOR Loan shall be in an aggregate principal amount of $250,000 or multiples of $50,000 in excess thereof; and (ii) Each LIBOR Loan shall be in an aggregate principal amount of $250,000 or a multiple of $50,000 in excess thereof. (c) Notwithstanding the foregoing: (i) In the case of conversion of a LIBOR Loan to a Loan bearing interest at a different Interest Rate, the -22- Effective Date for the new Interest Period may not be any day other than the day after the expiration of the Interest Period relating to the Loan being converted; (ii) At the end of any applicable LIBOR Interest Period, the relevant LIBOR Loan will convert to a Base Rate Loan, respectively, unless the Borrower notifies the Bank pursuant to an Interest Rate Election Notice that Borrower is selecting a new Interest Rate option and a new Interest Period; (iii) At no time shall there be outstanding more than five (5) different LIBOR Loans under the Credit Facility, or six (6) if there are no Base Rate Loans outstanding; and (iv) During the continuance of an Event of Default, at the Agent's option exercisable by written notice to the Borrower, Borrower may not thereafter elect that the Loan Balance or one or more portions thereof shall bear interest at the Adjusted LIBOR Rate, until Borrower receives written notice to the contrary from the Agent. Section 4.03. Interest Periods. (a) In the case of Base Rate Loans, the Base Rate Interest Period shall be any period of time during which the Interest Rate on a Loan is not calculated with reference to the LIBOR Rate. (b) In the case of LIBOR Loans, the LIBOR Interest Period shall mean the period commencing on the date such Loan is made and ending, as the Borrower may select, pursuant to Section 4.01 on the numerically corresponding day in the first (1st), second (2nd), third (3rd) and sixth (6th) month thereafter. (c) Notwithstanding the above: (i) Any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day; (ii) Any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month -23- at the end of such Interest Period) shall, subject to the provisions of (i) above, end on the last day of the such calendar month; (iii) Any Interest Period that begins before the Termination Date and would otherwise end after the Termination Date shall end on the Termination Date; and (iv) Interest shall accrue from and including the first day of each Interest Period (which must be a Business Day) to, but excluding, the day on which such Interest Period expires. Section 4.04. Procedures Applicable to Interest Rates. (a) The Agent shall determine each Interest Rate hereunder in accordance with this Article and its determination thereof shall be conclusive in the absence of manifest error. (b) If Borrower has failed to elect properly the Adjusted LIBOR Rate with the applicable Interest Period for the Loan Balance or any portion thereof, and the Agent so informs Borrower, then Borrower shall be deemed to have requested that the Base Rate shall apply to such balance or portion thereof until Borrower shall have given a proper Interest Rate Election Notice. Section 4.05. Applicable Margin and Certain Adjustments. (a) The Applicable Margin for LIBOR Loans shall be equal to the percentage set forth below opposite the applicable ratio; Funded Debt to be calculated at the end of each fiscal quarter and Adjusted Cash Flow to be calculated for such fiscal quarter and the three (3) immediately preceding fiscal quarters: Funded Debt to Applicable Adjusted Cash Flow Ratio Margin Above or equal to 2.5 to 1.0 2.50% Below 2.5 to 1.0 2.00% Below 1.5 to 1.0 1.50% (b) The Applicable Margin calculated under subsection (a) above shall take effect retroactively and apply -24- for the fiscal quarter following the fiscal quarter for which the Funded Debt to Adjusted Cash Flow ratio was calculated. (c) Notwithstanding anything to the contrary contained in this Section, if any financial statements required by Section 8.03 hereof are not timely delivered when due, the Applicable Margin shall automatically equal the highest percentage set forth above as of the day such financial statements were due and until such financial statements are delivered, at which time the Applicable Margin shall be determined in accordance with this Section. Section 4.06. Special Provisions for LIBOR Loans. (a) If prior to the first day of any Interest Period for any LIBOR Loans: (i) The Agent determines reasonably and in good faith that deposits (in the applicable amounts) are unavailable or are not being offered in the relevant market for such Interest Period or that by reason of circumstances affecting the relevant markets adequate and reasonable means do not exist for ascertaining the applicable LIBOR Rate; or (ii) Any Bank advises the Agent that (A) the LIBOR Rate, as determined by the Agent, will not adequately and fairly reflect that cost to such Bank of maintaining or funding such Bank's Ratable Share of such Loans or (B) that the making or funding of LIBOR Loans has become impracticable as a result of an event occurring after the date of this Agreement which in the reasonable good faith opinion of such Bank materially affects such Loans; then, the Agent shall promptly notify the other Banks and the Borrower thereof and, so long as such circumstances shall continue, no Bank shall be under any obligation to make LIBOR Loans so affected. (b) In the event any Bank shall incur any loss or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Bank to make or maintain any portion of any LIBOR Loan hereunder as a result of: (i) Any payment or prepayment (whether voluntarily or involuntarily, because of an acceleration of the maturity hereof or otherwise) of the principal amount of any -25- LIBOR Loan hereunder on a date other than the scheduled last day of the Interest Period applicable thereto; (ii) Any LIBOR Loan hereunder not being borrowed in accordance with the Credit Request or Interest Rate Election Notice therefor; then, within ten (10) Business Days after receipt by the Borrower of written demand by such Bank, the Borrower shall pay directly to such Bank such amount as will (in the reasonable determination of such Bank) reimburse such Bank for such loss or expense. A statement as to any such loss or expense (including calculations thereof in reasonable detail) shall be submitted by such Bank to the Agent and the Borrower and shall, in the absence of manifest error, be conclusive and binding on the Borrower. As to prepayments, Borrower's reimbursement shall be equal to the amount, if any, by which (x) the installments or principal being prepaid plus the installments of interest which would have been payable thereon when discounted to a present value at a rate per annum equal to the yield to maturity of the "Applicable Treasury Bond Obligation(s)" exceeds (y) the principal amount being prepaid. The "Applicable Treasury Bond Obligation(s) shall mean the debt obligation(s) of the United States Treasury having a maturity date nearest in time to the maturity date(s) of the principal being prepaid and the maturity date and yield to maturity of such Applicable Treasury Bond Obligation(s) shall be determined by the Agent in its sole discretion on the basis of quotations published in the Wall Street Journal (or comparable source) on the date of prepayment. ARTICLE V GENERAL MATTERS WITH RESPECT TO THE CREDIT FACILITY Section 5.01. Priority of Payments. Any repayment or prepayment with respect to the Obligations shall be applied as set forth in Section 10.02(e). Section 5.02. Computation of Interest. Interest on the Credit Facility and on any other amounts due to the Agent or the Banks pursuant to this Agreement shall be computed on the basis of a year of 360 days for the actual number of days elapsed as to LIBOR Loans and 365 days as to Base Rate Loans. 26 Section 5.03. General Provisions as to Payments and Prepayments. The Company Affiliates shall make each payment with respect to any Loan or other Obligation hereunder, whether principal or interest, whether due at the date of maturity thereof or by declaration, acceleration or otherwise, and each mandatory and optional prepayment or repayment hereunder, not later than 12:00 noon on the date when due, in Federal or other funds immediately available in Philadelphia, Pennsylvania, to the Agent at its address following its signature hereto, or at such other address as the Agent shall by notice in writing advise Borrower. Each Company Affiliate hereby irrevocably authorizes the Agent and each Bank to charge, without prior notice, the entire balance in any account of any Company Affiliate with any Bank, to make payment on any Obligations then due, during the continuance of an Event of Default. Any payment so made or charged shall be promptly paid over to the Agent for application to the Obligations in accordance with Section 10.02(e). Section 5.04. Payment on Non-Business Day. Whenever any payment to be made pursuant to this Agreement or the Notes or any other Loan Document shall be due on a day which is not a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of interest or other amounts due hereunder or under such Note or Loan Document, as the case may be. Section 5.05. Accounting Terms. (a) All financial terms, whether or not specifically defined herein, shall be construed, and all financial data submitted pursuant to this Agreement shall be prepared, in accordance with GAAP applied in a manner consistent with the application of GAAP in the preparation of the Financial Statements. To the extent that under GAAP the financial statements of Borrower should be consolidated with those of any Affiliate, all financial terms, whether or not specifically defined herein, shall be construed accordingly, and all financial data submitted pursuant to this Agreement shall be prepared on a consolidated and consolidating basis. (b) In the event any "Accounting Changes" (as defined below) shall occur and such changes affect financial covenants, standards or terms in this Agreement, then the Company Affiliates and the Banks agree to enter into negotiations in order to amend such provisions of this Agreement so as to equitably reflect such Accounting Changes with the desired result -27- that the criteria for evaluating the financial condition of the Company Affiliates shall be substantially the same after such Accounting Changes as if such Accounting Changes had not been made, and until such time as such an amendment shall have been executed and delivered by the Company Affiliates and Required Banks, (i) all financial covenants, standards and terms in this Agreement shall be calculated and/or construed as if such Accounting Changes had not been made, and (ii) the Company Affiliates shall prepare footnotes to each Compliance Certificate and the financial statements required to be delivered hereunder that show the differences between the financial statements delivered (which reflect such Accounting Changes) and the basis for calculating financial covenant compliance (without reflecting such Accounting Changes). "Accounting Changes" means: (x) changes in accounting principles required by GAAP and implemented by the Company Affiliates; and (y) changes in accounting principles recommended by the Company Affiliates' certified public accountants. Section 5.06. Reference to Time. All references to a time of day herein shall be deemed to be references to the time in Philadelphia, Pennsylvania, unless otherwise specified. Section 5.07. Default Rate. Notwithstanding any other provision hereof to the contrary, any principal, and to the extent permitted under applicable law, interest, of or on the Loan Balance and any other Obligation to the Banks or the Agent which is not paid in full when due shall bear interest at a rate per annum equal to two and one-half percent (2.5%) per annum in excess of the Interest Rate applicable thereto otherwise in effect, as in effect from time to time; provided that no interest shall accrue hereunder in excess of the maximum rate permitted by law. Such Default Rate shall change immediately whenever there is a change in the Base Rate, and such interest shall be payable by Borrower on demand. Section 5.08. Commitment Fee. Borrower shall pay to the Agent, to be distributed by the Agent to each Bank according to its Ratable Share, a nonrefundable commitment fee computed at an annual rate equal to the average daily unused portion of the Revolving Credit Facility available to Borrower hereunder from the date hereof to and including the Termination Date, multiplied by 0.375% if the Applicable Margin is 2.50%, 0.25% if the Applicable Margin is 2.0%, and 0.20% if the Applicable Margin is 1.50%. Such commitment fee shall be payable (a) quarterly in arrears on the last business day of each fiscal quarter commencing March 31, 1998, and (b) on the Termination Date. Such 28 fee will be calculated on the basis of actual number of days elapsed in a year of 360 days and shall accrue from the date hereof to but excluding the Termination Date. Section 5.09. Other Fees. Borrower shall pay agency and structuring fees to the Agent as set forth in the Summary Terms and Conditions dated November 7, 1997. Section 5.10. The Banks' Reimbursements. The Company Affiliates irrevocably agree, jointly and severally, in consideration of the Credit Facility: (a) To pay the reasonable fees and reasonable out-of-pocket expenses of the Agent as reimbursement for the costs and expenses of field audits by the Agent's employees and others, to be billed at Agent's rates then in effect, payable promptly after receipt of an invoice therefor; (b) To pay such funds as shall be required to reimburse all reasonable out-of-pocket fees and expenses (including without limitation legal expenses) incurred to third parties: (i) by the Agent in connection with the negotiation, drafting, amendment and administration of this Agreement and the other Loan Documents and (ii) by the Agent and the Banks in connection with the successful enforcement and/or protection of the Agent's and the Banks' rights hereunder and thereunder, and/or the Collateral, before or after any Event of Default, payable promptly after receipt of the invoice therefor; and (c) To indemnify, defend and hold harmless the Agent and each of the Banks, and each of their directors, officers, employees and agents, on demand, from and against any and all losses, claims, obligations, damages, liabilities, expenses or disbursements of any kind and nature whatsoever (including but not limited to reasonable fees and reasonable disbursements of counsel, interest, penalties, and amounts paid in settlement) which may be imposed on, incurred by or asserted against the Agent or any Bank, or any director, officer, employee or agent thereof, in any way related to or arising out of this Agreement or the Loan Documents or the transactions contemplated hereby or thereby or the good faith enforcement of any of the terms hereof or thereof or of any such other documents, including but not limited to those arising under any Environmental Laws whether or not the Agent or the Banks shall have exercised any right to take possession of any real property arising hereunder or under any other Loan Document. The foregoing indemnity shall apply and be enforceable regardless of whether any Bank or any -29- director, officer, employee or agent thereof, or any action taken or omitted by such party is or is alleged to be negligent, and such indemnity shall exclude only such losses, claims, damages, liabilities or expenses which Borrower proves were clearly and directly a result of such party's gross negligence, bad faith or willful misconduct. Section 5.11. Capital Adequacy. (a) If any Bank shall have determined that the adoption after the date hereof of any law, rule, regulation or guideline regarding capital adequacy, or any change in any of the foregoing or in the interpretation or administration of any of the foregoing by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Bank (or any lending office of such Bank) or such Bank's holding company with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Bank's capital or on the capital of the Bank's holding company to a level below that which such Bank or its holding company could have achieved but for such adoption, change or compliance (taking into consideration such Bank's policies and the policies of such Bank's holding company with respect to capital adequacy) by an amount deemed by such Bank to be material, then from time to time Borrower shall pay to such Bank as set forth in (b) below such additional amount or amounts as will compensate such Bank or its holding company for any such reduction suffered. (b) A certificate of such Bank setting forth such amount or amounts and such details as reasonably requested by the Borrower as shall be necessary to compensate such Bank or its holding company as specified above shall be delivered to the Borrower and shall be conclusive, absent manifest error. The Borrower shall pay such Bank the amount shown as due on any such certificate delivered by such Bank within ten (10) days after the Borrower's receipt of the same. (c) Failure on the part of any Bank to demand compensation for increased costs (excluding overhead) or reduction in amounts received or receivable or reduction in return on capital with respect to any period within one hundred and eighty (180) days prior to demand shall not constitute a waiver of such Bank's right to demand compensation with respect to such period or any other period. -30- (d) If any governmental action described in subsection (a) above is successfully challenged by any Person, and as a consequence thereof any Bank becomes entitled to recover any costs with respect to which it has been compensated by Borrower, such Bank shall promptly repay the Borrower such amount as it shall have received from the Borrower by way of such compensation. Section 5.12. Interest Laws. Notwithstanding any provision to the contrary contained in this Agreement or any Loan Document, no Borrower shall be required to pay, and neither Agent nor any Bank shall be permitted to collect, any amount of interest in excess of the maximum amount of interest permitted by applicable law ("Excess Interest"). If any Excess Interest is provided for or determined by a court of competent jurisdiction to have been provided for in this Agreement or in any Loan Document, then in such event: (a) the provisions of this section shall govern and control; (b) neither Borrower nor any other Company Affiliate shall be obligated to pay any Excess Interest; (c) any Excess Interest that Agent or any Bank may have received hereunder shall be, at such Bank's option, (i) applied as a credit against the outstanding principal balance of the Obligations or accrued and unpaid interest (not to exceed the maximum amount permitted by law), (ii) refunded to the payor thereof, or (iii) any combination of the foregoing; (d) the interest rate(s) provided for herein shall be automatically reduced to the maximum lawful rate allowed from time to time under applicable law (the "Maximum Rate"), and this Agreement and the other Loan Documents shall be deemed to have been and shall be, reformed and modified to reflect such reduction; and (e) neither Borrower nor any Company Affiliate shall have any action against Agent or any Bank for any damages arising out of the payment or collection of any Excess Interest. Section 5.13. No Deductions. Any and all payments or reimbursements made under the Notes or any other Loan Document shall be made unconditionally and without counterclaim or set-off, and free and clear of and without deduction for any and all present or future taxes, levies, imposts, deductions, charges or -31- withholdings, and all penalties, interest and other liabilities with respect thereto; excluding, however, only the following: taxes imposed on the net income of any Bank or Agent by the jurisdiction under the laws of which Agent or such Bank is organized or doing business or any political subdivision thereof and taxes imposed on its net income by the jurisdiction of Agent's or such Bank's applicable lending office or any political subdivision thereof (all such taxes, levies, imposts, deductions, charges or withholdings and all liabilities with respect thereto excluding such taxes imposed on net income, herein "Tax Liabilities"). If Borrower shall be required by law to deduct any such Tax Labilities from or in respect to any sum payable hereunder to Agent or any Bank, then the sum payable hereunder shall be increased as may be necessary so that, after making all required deductions, Agent or such Bank receives an amount equal to the sum it would have received had no such deductions been made. Section 5.14. Yield Protection. (a) If any Regulatory Change: (i) Shall subject any Bank (or any lending office of such Bank) to any tax, duty or other charge with respect to its Loans hereunder or its obligation to make Loans hereunder, or shall change the basis of taxation of payments to any Bank (or any lending office of such Bank) of the principal of or interest on its Loans or any other amounts due under this Agreement in respect of its Loans or its obligation to make Loans hereunder (except for changes in the rate of tax on the overall net income of such Bank or its lending office imposed by the jurisdiction in which such Bank's principal executive office or lending office is located); or (ii) Shall impose, modify or deem applicable any reserve (including, without limitation, any reserve imposed by the Board of Governors of the Federal Reserve System, but excluding any reserve included in the determination of the LIBOR Rate for any applicable Loan), special deposit, special assessment or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Bank (or any lending office of such Bank) with respect to its Loans or obligations hereunder to make Loans; or (iii) Shall impose on any Bank (or any lending office of such Bank) any other condition affecting its Loans, or its obligations hereunder to make Loans; -32- and the result of any of the foregoing is to increase the cost to (or to impose a cost on) such Bank (or any lending office of such Bank) of making or maintaining any Loan hereunder, or to reduce the amount of any sum received or receivable by such Bank (or any lending office of such Bank) under this Agreement or under its Notes with respect thereto, within ten (10) Business Days after receipt of written demand by such Bank, the Borrower shall pay directly to such Bank such additional amount or amounts as will (in the reasonable good faith determination of such Bank) compensate such Bank for such increased cost or such reduction; provided that, to the extent any of the foregoing relates only to LIBOR Loans, upon notice thereof by any Bank, Borrower may within such ten (10) day period repay in full such LIBOR Loans or convert such LIBOR Loans to Base Rate Loans without incurring reimbursement obligations for such additional costs. (b) Notwithstanding subsection (a), to the extent that such Bank can without unreasonable expense or any other disadvantage (as determined by such Bank), shift such Loan to another office which would not be subject to such requirements, such Bank will make reasonable efforts to effectuate such change. A certificate of any Bank setting forth the amount or amounts (including calculations thereof in reasonable detail) necessary to compensate such Bank as set forth in this section, together with appropriate written materials necessary to document such costs, shall be submitted by such Bank to the Agent and the Borrower and shall, in the absence of manifest error, be conclusive and binding on the Borrower. Section 5.15. Illegality. If any Regulatory Change shall make it (or in the good faith reasonable judgment of any Bank shall raise a substantial question as to whether it is) unlawful for any Bank to make, maintain or fund any Loans, then (a) such Bank shall promptly notify the Agent and the Agent shall promptly notify each of the other Banks and the Borrower, (b) the obligation of all Banks to make or maintain Loans shall, upon the effectiveness of such event, be suspended for the duration of such unlawfulness (or until such Bank is no longer a party to this Agreement), and (c) if the illegality relates solely to LIBOR Loans, on the last day (or, if earlier, on such date as may be required by the Regulatory Change) of the Interest Period(s) for each borrowing of LIBOR Loans, such LIBOR Loans shall be repaid in full, or if not so repaid, converted automatically to Base Rate Loans (unless such Bank is no longer a party to this Agreement on such date(s)). Any Bank that has given a notice of unlawfulness pursuant to subsection (a) above shall rescind such notice promptly upon the cessation of such unlawfulness by giving -33- notice to each of the other parties hereto, in which case any affected LIBOR Loans shall continue for the original Interest Period selected. ARTICLE VI CONDITIONS OF LENDING The Banks shall not make the Credit Facility available on the Closing Date and shall not make any Revolving Credit Advances on or after the Closing Date, unless and until each of the following events shall have occurred, and each of the following documents shall have been delivered to the Agent and the Banks, in form and substance satisfactory and at no cost to the Agent and the Banks, and duly executed and/or notarized by the intended signatories thereto, and when appropriate, in proper form for filing or recording; provided that, the Company Affiliates need not duplicate, as a condition to an Advance, a delivery made at the Closing: Section 6.01. Execution of Principal Loan Documents. (a) This Agreement executed by each Company Affiliate; (b) For each Bank, a Revolving Credit Note dated the date hereof and in the form of Exhibit 2.02, each such Note to be dated and delivered on the date hereof and executed by the Borrower; (c) The Security and Pledge Agreement executed by each Company Affiliate, securing the Obligations and covering substantially all of the assets, properties and rights of and all securities issued by each Company Affiliate other than securities issued by Borrower (including the real property interests secured by the Mortgages, the "Collateral"); (d) Mortgages as to all real property now or hereafter owned by any Company Affiliate, securing the Obligations; (e) The Surety Agreement with respect to the Obligations executed by each Company Affiliate; and (f) The Subrogation and Contribution Agreement executed by each Company Affiliate. -34- Section 6.02. Additional Collateral Documentation. (a) Evidence satisfactory to the Banks and their counsel that financing statements under the Uniform Commercial Code with respect to the Collateral have been executed and filed in such form and in such public offices such that the security interests granted to the Banks hereunder shall constitute fully perfected first priority security interests, subject only to Senior Liens; (b) As reasonably required by the Agent from time to time, searches with respect to the Company Affiliates and their former names and any trade names under which they do or have previously done business, in all appropriate filing offices and jurisdictions with respect to Uniform Commercial Code financing statements, judgments and tax liens, showing none of the foregoing applicable to the Collateral except Permitted Liens; (c) UCC Termination Statements as to any lien or encumbrance other than Permitted Liens; (d) Evidence of insurance of each Company Affiliate, including, but not limited to, policies for property and casualty (which policies shall, at all times, reflect the Agent as loss payee and shall be in an amount equal to the full replacement value of the Collateral), business interruption, workers' compensation and liability, in a form and in amounts satisfactory to the Banks; (e) Landlord's waivers and estoppel certificates with respect to the Collateral, executed by the landlord of each Company Affiliate at each of their locations and facilities; and (f) Share certificates and other documentation representing or evidencing all securities issued by each Company Affiliate other than Borrower, accompanied by executed stock powers and other documents of transfer and executed proxies. Section 6.03. Additional Loan Documentation. (a) As reasonably required by the Agent from time to time, a favorable opinion of counsel for Borrower (in form similar to that delivered at Closing, subject to changes reasonably requested by the Agent to take into account changed or different facts and circumstances) and local counsel as to such matters as the Banks may reasonably request; -35- (b) On or prior to the Closing Date and before any Permitted Acquisition, a certificate, dated the Closing Date, of a responsible officer of each Company Affiliate certifying as true and correct (i) its Articles/Certificate of Incorporation, as certified by the Secretary of State of the state of incorporation of each such Person; (ii) good standing certificates with respect to each such Person from the Secretary of State of the state in which it was organized and in each state in which it is required to qualify to do business; (iii) the Bylaws of each such Person, (iv) the names, incumbency and signatures of the officers of each such Person authorized to execute this Agreement and the Loan Documents, upon which the Banks may conclusively rely until they shall receive a further certificate amending the prior certificate, (v) resolutions or consents of the Board of Directors of each such Person, authorizing, as appropriate, the consummation of the Loans, and all related transactions and the execution of this Agreement and the Loan Documents and all documents related thereto, and (vi) all documents evidencing other necessary corporate action and governmental and other approvals, if any, with respect to the foregoing transactions; (c) A true and complete Compliance Certificate, dated the Closing Date and the date of each Permitted Acquisition; (d) Within sixty (60) days after Closing, the purchase of interest rate protection in form and substance reasonably acceptable to the Agent and the Banks for at least Fifteen Million Dollars ($15,000,000) of the Credit Facility and for a minimum of three (3) years, capping the Adjusted LIBOR Rate at eight percent (8%) per annum or less. Section 6.04. Financial Information. (a) At the Closing, the financial statements described in Section 7.05; (b) At the Closing, five (5) years of consolidated financial projections of the Company Affiliates reasonably satisfactory to Agent and the Banks; and (c) At the Closing, an operations business plan for the Company Affiliates. Section 6.05. Additional Conditions for Each Revolving Credit Advance. In addition to the other conditions set forth in -36- this Article VI, the Banks shall not make any Revolving Credit Advance after the Closing unless the Agent shall have received a true and complete Credit Request executed by Borrower's Chief Executive Officer or Chief Financial Officer dated the date of the requested Revolving Credit Advance. ARTICLE VII REPRESENTATIONS AND WARRANTIES The Company Affiliates jointly and severally represent and warrant to the Agent and the Banks as follows, such representations and warranties being made as of the Closing: Section 7.01. Organization and Authority. (a) Each Company Affiliate is a corporation, duly organized, validly existing and in good standing under the laws of its state of incorporation with full power and authority to own and operate its properties, carry on its businesses as and where presently conducted, enter into and to perform its obligations under this Agreement and the Loan Documents, and consummate the transactions contemplated hereby and thereby. (b) Attached hereto as Exhibit 7.01 is a true, correct and complete list of all of the Company Affiliates, showing the relationship of each to the others. (c) Each Company Affiliate is duly qualified or otherwise authorized to do business as a foreign corporation or partnership and are in good standing in the jurisdictions set forth in Exhibit 7.01, which are the only jurisdictions (domestic or foreign) in which the businesses of each Company Affiliate are conducted or the assets of each Company Affiliate are located and in which such qualification or authorization is required by law and with respect to which the failure to so qualify or be authorized would have a material adverse effect on the properties, assets, business, operations or financial condition of each Company Affiliate taken as a whole. Except as shown in Exhibit 7.01, no Company Affiliate has any direct or indirect equity interest in any corporation, partnership, joint venture or other entity or business enterprise other than non-business passive investments or the ownership of five percent (5%) or less of any class of stock of a corporation that is listed for trading on a national stock exchange or the NASDAQ system. -37- Section 7.02. Authorization and Binding Nature of Loan Documents. The execution, delivery and performance of this Agreement and of the Loan Documents by each Company Affiliate have been duly authorized by all necessary actions, and this Agreement and the Loan Documents have been duly executed and delivered by each Company Affiliate and constitute the valid, binding and enforceable obligations of each Company Affiliate, subject to bankruptcy, insolvency and other similar laws and to general equitable principles. Section 7.03. No Conflicts. (a) The execution, delivery and performance of this Agreement and the Loan Documents by each Company Affiliate and the consummation of the transactions contemplated hereby and thereby do not and will not (with or without the giving of notice) (i) conflict with the Articles/Certificate of Incorporation or Bylaws of any Company Affiliate, or (ii) conflict with, or result in the breach or termination of, or constitute a default under, (A) any material authorization, permit, lease, agreement, contract, commitment or other instrument, or (B) any order, judgment, injunction or decree of any court or Governmental Authority, foreign or domestic, to which any Company Affiliate is a party or by which any of any Company Affiliate's assets or properties are bound, in the case of each of clause (A) and (B) above, where such conflict, breach, termination or default could have a material adverse effect on any Company Affiliate's ability to consummate the transactions to be performed by it pursuant to this Agreement and the Loan Documents, or upon the properties, assets, business, operations or financial condition of the Company Affiliates taken as a whole; (iii) to Borrower's Knowledge, constitute a violation of any law, statute or regulation of any Governmental Authority, domestic or foreign, applicable to any Company Affiliate, the enforcement of which could have a material adverse effect on any Company Affiliate's ability to consummate the transactions to be performed by it pursuant to this Agreement and the Loan Documents, or upon the properties, assets, business, operations or financial condition of the Company Affiliates taken as a whole; (iv) result in the creation of any lien, charge or encumbrance upon any Company Affiliate's assets (other than those created hereunder); or (v) give to others any material rights, including rights of termination, cancellation or acceleration, in or with respect to any Company Affiliate's assets. (b) Except as set forth on Exhibit 7.03, no Company Affiliate has received any notice of violation of, and no -38- Company Affiliate, to its knowledge, is in violation of, any applicable law, statute, ordinance, order, rule or regulation, or any judgment entered by any federal, state, local or foreigncourt or Governmental Authority, relating in each case to the operation, conduct or ownership of the properties or businesses of each Company Affiliate, the failure to comply with which could have a material adverse effect on the properties, assets, business, operations or financial condition of the Company Affiliates taken as a whole, including but not limited to the federal antitrust laws, the state antitrust laws, the federal securities laws, the state securities laws (so called "Blue Sky" and similar laws), the Occupational Safety and Health Act, and all other federal, state or local laws, regulations or ordinances pertaining to the businesses of each Company Affiliate. (c) (i) No proceeding is pending or, to Borrower's knowledge, threatened by any Person seeking to revoke or deny the renewal of any authorization or permit necessary to the current operations of any Company Affiliate; and (ii) no Company Affiliate has been advised in writing by any relevant authority that any authorization or permit necessary to the current operations of any Company Affiliate will not in the ordinary course be renewed upon its expiration or that, by virtue of the transactions contemplated hereby, the authorizations or permits necessary to the current operations of each Company Affiliate will not be granted or renewed where, with respect to clauses (i) or (ii) above, the revocation, denial or failure to renew or obtain any such authorization or permit, individually or in the aggregate, would have a material adverse effect on the properties, assets, business, operations or financial condition of the Company Affiliates taken as a whole. All material authorizations and permits necessary to the operations of each Company Affiliate are, except as set forth on Exhibit 7.03 and except for those the absence of which would not have a Material Adverse Effect, in full force and effect, and, except as set forth on Exhibit 7.03, no Company Affiliate has received any notice, written or oral, of any claim or charge that any Company Affiliate is currently in violation of or in default under any authorization or permit necessary to the past operations of any Company Affiliate which could have such a material adverse effect. Section 7.04. Consents. No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority or other Person is required on the part of any Company Affiliate in connection with the execution, delivery and performance of this Agreement or the Loan Documents. -39- Section 7.05. Financial Information. (a) The financial statements of the Company Affiliates contained in Borrower's Registration Statement on Form S-1 declared effective on December 3, 1997 (the "Registration Statement"), the balance sheet of each Company Affiliate and the related statement of operations for the period ended December 31, 1997, and the consolidated pro forma balance sheet of the Company Affiliates and the related consolidated statements of operations, statements of shareholders' equity, and statements of cash flows as of December 31, 1997, giving effect to the acquisitions described in the Registration Statement, and in each case the notes thereto, and based on the historical interim financial statements referenced above in this subsection, fairly present in all material respects in conformity with GAAP the financial position of the Company Affiliates as of such dates and for such periods, and copies of such Financial Statements have been delivered to the Banks. (b) Upon giving effect to the execution of the Loan Documents and the consummation of the transactions contemplated by the Loan Documents, the following are true and correct after diligent investigation: (i) The fair saleable value of the assets of each of the Company Affiliates exceeds the amount that will be required to be paid on or in respect of the existing debts and other liabilities (including, without limitation, pending or overtly threatened litigation in amounts in excess of effective insurance coverage and all other contingent liabilities) of each such Person as they mature; (ii) The assets of each of the Company Affiliates do not constitute unreasonably small capital for such Company Affiliate to carry out its business as now conducted and as proposed to be conducted including the capital needs of such Company Affiliate, taking into account the particular capital requirements of the business conducted by such Company Affiliate, and projected capital requirements and capital availability thereof; (iii) Each of the Company Affiliates do not intend to incur debts beyond its ability to pay as they mature -40- (taking into account the timing and amounts of cash to be received by each of the Company Affiliates, and of amounts to be payable on or in respect of the debt of each of the Company Affiliates); (iv) The fair saleable value of the assets of each of the Company Affiliates is greater than the total fair value of the liabilities, including contingent, subordinated, absolute, fixed, matured or unmatured, and liquidated or unliquidated liabilities, of such Company Affiliate. (c) For purposes of subsection (b) above, "debt" means any liability on a claim, and "claim" means (i) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured or (ii) right to an equitable remedy for breach of performance if such breach gives rise to a payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured, unmatured, disputed, undisputed, secured or unsecured. (d) Each of the Company Affiliates has determined that its liabilities and obligations under the Loan Documents may reasonably be expected to benefit it substantially, directly or indirectly, because through the Borrower it will have access to credit under the Credit Agreement and its board of directors has made that determination. Each of the Company Affiliates has had full and complete access to the Loan Documents and all other papers executed by Borrower or any other Person in connection with the Obligations, has reviewed them and is fully aware of the meaning and effect of their contents. Each of the Company Affiliates is fully informed of all circumstances which bear upon the risks of executing the Loan Documents and which a diligent inquiry would reveal, and each has adequate means to obtain on a continuing basis information concerning the consolidated and consolidating financial condition of the Company Affiliates, and is not depending on the Agent or any Bank to provide such information, now or in the future. It agrees that neither the Agent nor any Bank shall have an obligation to advise or notify any Company Affiliate or to provide it with any such data or information. Section 7.06. Absence of Certain Developments. Since December 31, 1997, there has not been any material adverse change in the properties, assets, business, operations or financial condition of the Company Affiliates, separately or taken as a whole. -41- Section 7.07. Material Leases and Contracts. (a) All leases and other contracts, commitments and agreements of each Company Affiliate are valid, binding and enforceable on such Company Affiliate in accordance with their terms, subject to bankruptcy, insolvency and other similar laws and to general equitable principles, except to the extent that the failure, individually or in the aggregate, of any such lease, contract, commitment or agreement to be valid, binding and enforceable could not have a material adverse effect on the properties, assets, business, operations or financial condition of the Company Affiliates taken as a whole. Except as set forth in Exhibit 7.07, to Borrower's knowledge, there are no defaults or, threatened defaults under any lease or other contract, commitment or agreement by any Company Affiliate or any other party thereto which default or defaults could, individually or in the aggregate, have a material adverse effect on the properties, assets, business, operations or financial condition of the Company Affiliates taken as a whole. (b) Except as set forth in Exhibit 7.07 or as described in or filed as an exhibit to the Registration Statement or other subsequent filings with the Securities and Exchange Commission (such filings to be provided to the Banks upon filing), no Company Affiliate is a party to a material contract as defined in Item 601(10) of Regulation S-K promulgated under the Securities Act. Section 7.08. ERISA Matters. (a) Neither Borrower nor any Related Party maintains or contributes to or has any obligation to any Person (including current and former employees) under any Plan other than those listed on Exhibit 7.08 hereto. No Plan listed on Exhibit 7.08 is a Multiemployer Plan or a Pension Benefit Plan subject to Section 412 of the Code or Title IV of ERISA. All of Borrower Plans have been maintained and administered by the Borrower and/or Related Parties in material compliance with ERISA, the Code, and the Uniformed Services Employment and Reemployment Rights Act, to the extent applicable. Neither Borrower nor any Related Party has failed to make any contribution or pay any amounts due and owing as required by the terms of any Borrower Plan or any Law which would have a material adverse effect on the Company Affiliates. (b) Except as disclosed on Exhibit 7.08 hereto, each Pension Benefit Plan listed on Exhibit 7.08 (and all -42- amendments thereto) that is intended to qualify under section 401 of the Code has been determined by the IRS to so qualify and the trusts created thereunder (and all amendments thereto) have been determined by the IRS to be exempt from tax under the provisions of section 501 of the Code, and to the knowledge of Borrower or any Related Parties, nothing has occurred which would cause the loss of such qualification or the imposition of any material liability or penalty under the Code. Each Pension Benefit Plan listed on Exhibit 7.08 (and any amendment thereto) that is intended to qualify under section 401 of the Code which has not been determined by the IRS to qualify under section 401 of the Code and the trusts created thereunder (and any amendment thereto) which have not been determined to be exempt from tax under section 501 of the Code, have been, or will be submitted to the IRS for such determination before the expiration of the time period established in section 401(b) of the Code and the regulations promulgated thereunder. (c) Except as disclosed on Exhibit 7.08, all Welfare Benefit Plans listed on Exhibit 7.08 are fully insured, and all premium payments required to be made to date under such Welfare Benefit Plans have been made by the Borrower and/or Related Parties on a timely basis. The Borrower and/or Related Parties have in all material respects complied with the health care continuation requirements under Sections 4980B and/or 162(l) of the Code and any proposed or final regulations promulgated thereunder. (d) The Borrower and/or Related Parties do not, to the knowledge of Borrower or any Related Party, participate in any Plan in which a "disqualified person" or "party-in-interest" with respect to any Plan have engaged in a "prohibited transaction" (as such terms are defined in section 4975 of the Code and Title I of ERISA) which would subject Borrower or any Related Party (after giving effect to any exemption) to a tax on prohibited transactions imposed by section 4975 of the Code or to any other liability under Title I of ERISA. (e) No Pension Benefit Plan subject to Title IV of ERISA or any trust created under any such Plan which has been maintained or contributed to by Borrower or any Related Party at any time since the effective date of ERISA has been terminated, except as set forth in Exhibit 7.08. Any such termination has received approval from the IRS and the Pension Benefit Guaranty Corporation ("PBGC"). To the knowledge of the Borrower, there are no circumstances pursuant to which the Borrower or any -43- Related Party has or may incur any material liability under Sections 4062, 4063 or 4064 of ERISA. (f) There are no actions, suits, investigations or proceedings, pending or, to the knowledge of the Borrower threatened against, or affecting any Borrower Plan, the assets of any Borrower Plan or any Borrower Plan fiduciary, at law or in equity, by or before any court or governmental department, agency or instrumentality that could result in any material liability to Borrower or any Related Party, and Borrower and Related Parties are not aware of any basis for any such action, suit, investigation, or proceeding. There are presently no outstanding judgments, decrees or orders of any court or any government or administrative agency against or affecting any Borrower Plan, the assets of any Borrower Plan or any Borrower Plan fiduciary that will or could result in any material liability to Borrower or a Related Party. (g) The execution and delivery of this Agreement and the other Loan Documents, and the consummation of the transactions contemplated thereby, will not involve any transaction which will be prohibited by Section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975 of the Code or otherwise fail to satisfy or invoke Title I of ERISA. (h) Neither Borrower nor any Related Party maintains retired life and retired health insurance plans which provide for continuing benefits or coverage for any participant or any beneficiary of a participant after such participant's termination of employment. Section 7.09. Litigation. (a) There are no judicial or administrative actions, proceedings or investigations pending or, to the knowledge of Borrower, threatened, that question the validity of this Agreement and the Loan Documents or any action taken or to be taken by any Company Affiliate in connection with this Agreement and the Loan Documents. (b) Except as set forth in Exhibit 7.09, there are no material suits, actions, claims or legal, administrative, arbitration or other proceedings or governmental investigations pending or, to the knowledge of the Borrower threatened, and there are no material orders, injunctions or decrees outstanding, against any Company Affiliate. -44- Section 7.10. Tax and Other Returns and Reports. Except as set forth in Exhibit 7.10: (a) all federal, state, local and foreign tax returns and tax reports (or extensions relating thereto) required to be filed by any Company Affiliate have been filed on a timely basis with the appropriate governmental agencies in all jurisdictions in which such returns and reports are required to be filed, and all such returns and reports were true and correct in all material respects when filed; (b) all federal, state, local and foreign income, profits, franchise, sales, use, premium, occupancy, property, severance, excise, withholding, value added and other taxes (including interest and penalties) due from any Company Affiliate (i) have been fully and timely paid or adequately provided for on the Financial Statements or on the books and records of Company Affiliates, as appropriate, in all material respects, or (ii) are being contested in good faith by appropriate proceedings and are not material, individually or in the aggregate, to any Company Affiliate; (c) no material issues have been raised with a representative or employee of any Company Affiliate (and are currently pending) by the Internal Revenue Service or any other taxing authority in connection with any of the returns and reports referred to in the foregoing clause (a) or otherwise; (d) no waivers of statutes of limitation have been given or requested with respect to any Company Affiliate in connection with any tax returns covering any Company Affiliate or with respect to any taxes payable by any Company Affiliate; and (e) there are no unpaid deficiencies asserted or assessments made by any taxing authority against any Company Affiliate, except for items which do not exceed $100,000 individually or in the aggregate. Section 7.11. Absence of Undisclosed Liabilities. (a) Except as set forth in Exhibit 7.11, no Company Affiliate has any liabilities or obligations, either accrued, contingent or otherwise, which have not been reflected in the Financial Statements that have or are reasonably likely to have a Material Adverse Effect, except for liabilities arising after the date of the Financial Statements in the ordinary course of business. -45- (b) Except as set forth in Exhibit 7.11, whether or not in the ordinary course of business, since December 31, 1997 there has not been, occurred or arisen: (i) any damage or destruction to properties or assets of any Company Affiliate, whether covered by insurance or not, which has had or could have a material adverse effect on the properties, assets, business, operations or financial condition of Company Affiliates taken as a whole; (ii) any extraordinary loss (as defined in Opinion Number 30 of the Accounting Principles Board of the American Institute of Certified Public Accountants) suffered by any Company Affiliate which, individually or in the aggregate, could have a material adverse effect on the properties, assets, business, operations or financial condition of Company Affiliates taken as a whole; or (iii) any waiver by any Company Affiliate of any rights of substantial value which, individually or in the aggregate, would have a Material Adverse Effect. Section 7.12. Affiliate Agreements. Except as set forth on Exhibit 7.12, there are no material written or oral agreements, contracts, commitments or understandings which are between or among any of the Company Affiliates, including, without limitation, any such agreements, contracts, commitments or understandings relating to the provision of any services by any Company Affiliate to its shareholders, or by its shareholders to any Company Affiliate. Section 7.13. Personal Property. Each Company Affiliate now has legal and valid title to all material tangible personal property purported to be owned, and valid leasehold rights in all material tangible personal property purported to be leased, in each case as reflected on the Financial Statements on the respective dates thereof, other than such inventory as has been sold in the ordinary course of business and personal property not material in aggregate amount. None of such assets or property the value of which is reflected on the Financial Statements is owned by any Affiliate of any Company Affiliate, as the case may be, or is under or subject to any lease, conditional sale or other title retention agreement, and such assets or property are free and clear of all liens, security interests, mortgages and encumbrances of any nature whatsoever except for Permitted Liens. Section 7.14. Real Property. (a) Except as specifically set forth on Exhibit 7.14, each Company Affiliate has good and marketable title to all fee interests and valid ownership of all leasehold estates and -46- other real property rights purported to be owned by it, free and clear of all liens, security interests, mortgages and encumbrances, except Permitted Liens. (b) Except as set forth in Exhibit 7.14, all of the properties, buildings and structures owned or leased by the Company Affiliates are suitable for the purposes for which they are used, and each has adequate rights of ingress and egress for the operation of the business of the Company Affiliate in the ordinary course. To the knowledge of Borrower's executive officers, except as disclosed in Exhibit 7.14, (i) no such property, building or structure, or any appurtenance thereto or equipment therein, or the operation or maintenance thereof, violates any restrictive covenants or any provisions of any federal, state, local or foreign law, ordinance or zoning regulation, or encroaches on any property owned by others (other than permitted by easement or license), which violation or encroachment could materially interfere with the present or future use of such property, building, structure or appurtenance by any Company Affiliate; (ii) no condemnation proceeding is pending or threatened with respect to any such real property nor is any change in any of the foregoing laws, ordinances or regulations pending or threatened, which would materially interfere with the present use by any Company Affiliate of any building, structure, appurtenance or other property; and (iii) each lease of real property and improvements (if any) is in full force and effect and is valid, binding and enforceable in accordance with its terms, and there are no outstanding defaults by any Company Affiliate or any of the other parties with respect to any such lease, which could have a material adverse effect upon the Company Affiliates. Section 7.15. Intellectual Property. Each Company Affiliate owns, leases, licenses or has the right to use all material Intellectual Property which is necessary or desirable for the conduct of its business as it has been conducted heretofore and as it is contemplated to be conducted. All material Intellectual Property is listed and described in Exhibit 7.15. Except as set forth in Exhibit 7.15, (a) none of the Intellectual Property is subject to any outstanding order, decree, judgment, stipulation, settlement, lien, charge, encumbrance or attachment; (b) there is no pending or to Borrower's knowledge threatened proceeding, litigation or other adverse claim affecting or with respect to the Intellectual Property, and there is no basis for any of the foregoing; (c) to Borrower's knowledge no Person is infringing upon any of the Intellectual Property; and (d) no Intellectual Property is owned -47- or controlled by any officer, director or employee of any Company Affiliate. Section 7.16. Laws and Permits; Environmental Protection. (a) Each Company Affiliate has all Permits which are required for the operation of its business under any Laws except where the failure to obtain a Permit would not be reasonably expected to have a Material Adverse Effect. (b) To Borrower's knowledge after due inquiry and investigation, each Company Affiliate is in compliance with all terms and conditions of its Permits, and are also in compliance with all applicable Laws, in each case except where the failure to be in compliance could not have a material adverse effect on the properties, assets, business, operations or financial condition of the Company Affiliates. (c) There are no pending or threatened investigations, actions and proceedings of whatsoever nature involving any Company Affiliate or their properties, assets or businesses, arising under any Laws which, if decided adversely or held to be applicable to any Company Affiliate, could have a Material Adverse Effect. Borrower has no knowledge that any additional such action, investigation or proceeding is contemplated or that any facts or circumstances exist which could give rise to any of the matters described in this Section. Section 7.17. Insurance. Exhibit 7.17 contains an accurate and complete list of all policies of insurance owned or maintained by each Company Affiliate under which each Company Affiliate or any of their properties or assets are insured. All such policies (a) are in full force and effect, (b) are sufficient for compliance by each Company Affiliate with all applicable requirements of law and all agreements to which each Company Affiliate is a party or subject, including, but not limited to, the Loan Documents, and (c) provide insurance coverage with responsible companies of the assets, operations and employees of each Company Affiliate generally equivalent in type and amount to that which is customarily carried by other entities engaged in similar businesses and of approximately the same size and similarly situated as Company Affiliates, including without limitation (i) workmen's compensation insurance, and (ii) casualty insurance on all of the Collateral which shall name the Agent as sole loss payee. -48- Section 7.18. Employee Relations. The employees of no Company Affiliate are unionized and Borrower has no knowledge of any union organizing efforts in respect of such employees which are currently being conducted. No Company Affiliate has had at any time an organized strike, picket, work stoppage, work slowdown, or other labor trouble that had or may have a material adverse effect on the properties, assets, business, operations or financial condition of the Company Affiliates taken as a whole, nor has any Company Affiliate received written notification pursuant to the terms of any collective bargaining agreement, or otherwise, that such is now threatened. To the knowledge of Borrower, there is not any pending or threatened organized union activity, strike, picketing, work stoppage, work slowdown or other labor trouble with respect to the employees of any of the suppliers or customers of any Company Affiliate that could reasonably be expected to have a material adverse effect on the properties, assets, business operations or financial condition of the Company Affiliates taken as a whole. Section 7.19. Adequacy of Assets. The Permits and all other assets and rights, tangible and intangible, which are owned, leased or licensed by any Company Affiliate constitute sufficient assets, property and rights which are necessary for the operation of such Company Affiliate's business as it has operated and as proposed to be operated in the future. Section 7.20. Regulation U. No Company Affiliate is engaged in the business of extending credit for the purpose of purchasing or carrying margin stock (as that term is defined in Regulation U issued by the Board of Governors of the Federal Reserve System) and no part of the proceeds of the Credit Facility hereunder will be used to purchase or carry any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin stock. Section 7.21. Year 2000 Compliance. All material computer software licensed by any Company Affiliate, as licensor or as licensee, is and shall remain "Year 2000 Compliant" (as hereinafter defined), except as disclosed on Exhibit 7.21. For purposes of this Agreement, "Year 2000 Compliant" shall mean (i) all such software shall operate without errors in the recognition, calculation and processing of date data relating to century recognition, leap years, single and multi-century formulae, date values and interfaces of date-related functionalities; (ii) all date processing shall be conducted in a four-digit year format and all date sorting that includes a "year field" or "year category" shall be based upon a four-digit year -49- format; and (iii) any date arithmetic programs or calculators in the software shall operate in accordance with the related user documentation in the Year 2000, and the years following, without degrading functionality or performance. Section 7.22. Full Disclosure. In furtherance and not in limitation of the other provisions of this Agreement, to Borrower's knowledge, the representations contained in this Article with respect to the Company Affiliates does not contain any untrue statement of material fact or omit to state a material fact necessary to make the statements contained herein or therein, in light of the circumstances under which they are made, not misleading. ARTICLE VIII AFFIRMATIVE COVENANTS The Company Affiliates jointly and severally covenant and agree that from the date hereof, unless the Agent shall otherwise consent in writing: Section 8.01. Corporate Existence, Properties, Etc. Each Company Affiliate shall: (a) do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, organization, rights, franchises and permits and comply with all laws applicable to it, where the failure to comply could have a Material Adverse Effect; (b) consistent with good business practice and to the extent commercially reasonable, maintain, preserve and protect all material franchises and trade names and protect, preserve or replace all of its material property used or useful in the conduct of its business and keep the same, taken as a whole, in good repair, working order and condition, reasonable wear and tear excepted, and from time to time make, or cause to be made, all needful and proper repairs, renewals, replacements, betterments and improvements thereto so that the business carried on in connection therewith may be properly conducted at all times in accordance with prudent business management; (c) without limiting the foregoing, maintain all its properties, whether owned or leased, in substantial conformity with applicable Laws, except to the extent that -50- noncompliance (i) is caused by a party other than Borrower, in which case Borrower shall use best efforts to cause such noncompliance to be remedied; or (ii) does not have a Material Adverse Effect; (d) keep satisfactory books and records in accordance with reasonable business practice; and (e) maintain insurance as described in Section 7.17 and such other additional insurance as the Agent may from time to time reasonably request. Certified copies of all such policies, as well as all renewals and modifications thereof, providing for thirty (30) days' prior written notice of cancellation or other lapse to the Agent, shall be delivered to the Agent upon request. After one Business Day's prior written notice to Borrower, if any Company Affiliate fails to effect and continuously keep in full force and effect such insurance or fails to pay the premiums thereon when due, the Agent may (but shall not be obligated to) do so for the account of such Company Affiliate and add the cost thereof to the Obligations hereunder. Section 8.02. Payment of Indebtedness, Taxes, Etc. Each Company Affiliate shall: (a) pay all of its material Indebtedness promptly and in accordance with normal terms, and (b) file when due, and pay and discharge or cause to be paid and discharged when due, all taxes, assessments, and governmental charges or levies imposed upon it or upon its income and profits, or upon any of its property, real, personal or mixed, or upon any part thereof, as well as all lawful claims for labor, materials and supplies or otherwise which, if unpaid, might become a lien or charge upon such properties or any part thereof; provided, however, that no Company Affiliate shall be required to pay and discharge or to cause to be paid and discharged any such tax, assessment, charge, levy or claim so long as the validity thereof shall be contested in good faith by appropriate proceedings and Borrower or such Company Affiliate, as the case may be, shall have set aside on its books adequate reserves (as may be required in accordance with generally accepted accounting principles) with respect to any such tax, assessment, charge, levy or claim, so contested. Section 8.03. Statements, Reports and Certificates to be Delivered by Borrower. (a) Borrower will deliver to each Bank, at the Bank's address specified in Exhibit 2.01 hereto, the following: -51- (i) As soon as available and in any event within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year, consolidated and consolidating balance sheets of the Company Affiliates as at the end of such fiscal quarter, consolidated and consolidating statements of operations, and consolidated statements of changes in shareholders' equity and statements of cash flows of the Company Affiliates for the period commencing at the end of the previous fiscal year and ending with the end of such fiscal quarter in reasonable detail and stating in comparative form the respective consolidated and consolidating figures for the corresponding date and period in the previous fiscal year and certified by the Chief Financial Officer of the Borrower as being prepared consistent with the Company Affiliates' audited annual financial statements (subject to year-end adjustments and changes in accounting policies permitted by GAAP which have been disclosed in writing to the Banks); (ii) As soon as available and in any event within ninety (90) days after the end of each fiscal year, a consolidated and consolidating balance sheet of the Company Affiliates as at the end of such fiscal year and consolidated and consolidating statements of operations, and consolidated statements of changes in shareholders' equity and statements of cash flows of the Company Affiliates for such fiscal year, all in reasonable detail and stating in comparative form the respective consolidated figures for the corresponding date and period in the prior fiscal year and all prepared in accordance with GAAP and as to the consolidated statements, audited and accompanied by an unqualified opinion thereon reasonably acceptable to the Agent by Borrower's Accountants; (iii) (A) Simultaneously with the delivery of the annual financial statements referred to in subsection (ii) above, a certificate of the Accountants to the effect that, in making the examination necessary for the audit of such statements, they have obtained no knowledge of any condition or event which constitutes a Default or Event of Default, or if the Accountants shall have obtained knowledge of any such condition or event, specify in such certificate each such condition or event of which they have knowledge and the nature and status thereof; and (B) promptly upon receipt thereof, copies of any reports submitted to any Company Affiliate by the Accountants in connection with examination of the financial statements of the Company Affiliate made by the Accountants; -52- (iv) Simultaneously with the delivery of the items referred to in subsections (i) and (ii) above (as the case may be), a Compliance Certificate, in substantially the form attached hereto as Exhibit 8.03, signed on behalf of each Company Affiliate by the chief executive officer or chief financial officer of Borrower; (v) Within a reasonable period after request, reports of accounts receivable and accounts payable aging as to each Company Affiliate, said reports to be in the form reasonably required by the Agent; (vi) Promptly after the receipt thereof by the Borrower, a copy of any "management letter" from the Borrower's Accountants; (vii) As soon as available but no later than fifteen (15) days after the first day of each fiscal year of the Company Affiliates, a budget for the Company Affiliates using a format reasonably satisfactory to the Agent and the Banks (including budgeted statements of income and sources and uses of cash and balance sheets) prepared by the Borrower for (A) each fiscal month of such fiscal year except in the case of the sources and uses of cash and balance sheets, and each fiscal quarter, and (B) the five (5) fiscal years immediately following such fiscal year, in each case, prepared in reasonable detail with appropriate presentation and discussion of the principal assumptions upon which such budgets are based, accompanied by the statement of the chief financial officer of the Borrower to the effect that, to the best of his knowledge, the budget is a reasonable estimate for the period covered thereby; and (viii) Such other data and information as from time to time may be reasonably requested by the Agent, subject to normal confidentiability restrictions. (b) Each Company Affiliate hereby irrevocably authorizes and directs the Borrower's Accountants to provide to each Bank such other data and information as from time to time may be reasonably requested by the Agent. (c) In the event that any Indebtedness of any Company Affiliate in excess of $100,000 is declared due and payable before its expressed maturity or any holder of such Indebtedness shall have demanded payment of such Indebtedness before its expressed maturity because of the occurrence of any default thereunder, or upon the occurrence and continuance of an -53- event known to any executive officer of Borrower which, with the passage of time or the giving of notice (or both) will, unless cured, give rise to a right in favor of any person to make such a declaration or demand, Borrower will promptly give the Banks written notice of such declaration or demand, or of the occurrence of such event, and deliver to the Banks copies of all relevant notices, demands, correspondence and other information promptly upon receipt. (d) Borrower will, and will cause each Company Affiliate to, upon reasonable notice, permit such person or persons as the Agent may designate to visit and inspect any of the properties of any Company Affiliate, to examine (either by such persons or by independent accountants employed by the Agent), the books of account of each Company Affiliate, to discuss the affairs, finances and accounts of said corporations with their executive officers, or with their independent accountants, all at such reasonable times and as often as the Agent may reasonably desire. Section 8.04. Other Reports and Notices. Borrower shall furnish to the Agent: (a) As soon as any executive officer of Borrower or any Company Affiliate becomes aware of the occurrence of any Default or Event of Default, or, with respect to the occurrence of a Default described in Section 10.01(d) hereof, immediately upon any such occurrence, a written statement by the chief executive officer or the chief financial officer of Borrower setting forth details of such Default known to such officer stating whether or not the same is continuing and, if so, the action that Borrower proposes to take with respect thereto; (b) Within five (5) Business Days after receiving knowledge thereof, notice in writing of any uninsured action, suit or proceeding before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting any Company Affiliate that involves an uninsured claim of $100,000 or more or otherwise materially adversely affects the assets or business of any Company Affiliate; (c) As soon as possible, and in any event within five (5) Business Days after any executive officer of Borrower has knowledge of any regulatory investigation or potential investigation regarding any environmental hazard or condition or any spill, release, discharge or disposal of any Hazardous -54- Substance, having a potential material adverse effect on the financial condition or business of any Company Affiliate or involving any real property then owned or at any time heretofore or hereafter owned or leased by any Company Affiliate; (d) As soon as possible and in any event within five (5) Business Days after any executive officer of Borrower becomes aware of the occurrence of a material adverse change in the business, properties, operations, or conditions (financial or otherwise) of any Company Affiliate, a statement by the chief executive officer or chief financial officer of Borrower setting forth details of such material adverse change and the action that any Company Affiliate proposes to take with respect thereto; and (e) Such other information respecting the business, properties, condition or operations (financial or otherwise), of any Company Affiliate as the Agent may at any time and from time to time reasonably request be furnished to it. Section 8.05. ERISA Reports. Borrower will furnish to each Bank: (a) Upon the request of the Agent, promptly after the filing thereof with the DOL or the IRS, copies of each annual and other report with respect to each Borrower Plan, together with certified financial statements for each Borrower Plan; (b) Promptly after receipt thereof a copy of any notice (other than of a ministerial nature) of audit, investigation or other matter, determination letter, ruling, or opinion the Borrower and/or Related Party may receive from the DOL or IRS with respect to any Borrower Plan; (c) Notification of any material increases in the benefits of any existing Borrower Plan, or the establishment of any new Plans, or the commencement of contributions to any Plan to which Borrower or any Related Party were not previously contributing, or in the case of any Plan to which Borrower or any Related Party were previously maintaining or contributing, the maintenance of a plan or the commencement of contributions to a plan on behalf of a new group of employees whether or not as a result of any business acquisition of Borrower or any Related Party; and (d) At least thirty (30) days prior to any filing by any administrator of a Borrower Plan of a notice of intent to -55- terminate such Plan (as required by ERISA), a copy of such notice. Section 8.06. Additional Uniform Commercial Code Searches. From time to time after the Closing Date, giving consideration to the time delay in the offices recording filings of financing statements, as reasonably requested by the Agent, Borrower shall deliver to the Agent Uniform Commercial Code, tax lien and judgment searches with respect to each Company Affiliate and all former names or trade name then or previously used by any Company Affiliate in all appropriate filing offices effective for all dates up to and including the filing of record of each financing statement filed pursuant to this Agreement and other Loan Documents, showing that the Agent for the benefit of the Banks has a first priority perfected security interest in and on all personal property included in the Collateral, subject only to Senior Liens, and that there are no other Liens on the Collateral except Permitted Liens. Section 8.07. Formation of Company Affiliates. In the event that Borrower hereafter forms or acquires any Company Affiliates, Borrower shall cause such Company Affiliate to execute such agreements and documents, including this Agreement, the Notes, the Contribution Agreement, the Surety Agreement, the Security Agreement and Mortgages with respect to the Obligations and the Collateral, in satisfactory form and substance, as the Banks may reasonably deem necessary or desirable. Neither this Section nor any reference in this Agreement to Company Affiliates or consolidation of financial statements shall imply that any Company Affiliates may do or omit any act which would violate the terms and conditions of this Agreement, including without limitation Section 9.09 or 9.10. Section 8.08. Bank Accounts. (a) The Company Affiliates shall establish a concentration account (the "Concentration Account") and operating accounts with the Agent in Philadelphia, Pennsylvania or as otherwise mutually agreeable. Borrower shall be responsible for all costs and fees arising with respect to such accounts at the Agent's standard rates. (b) The Company Affiliates agree to remit promptly to the Concentration Account all payments, Cash Proceeds and other funds which may be directly received by Borrower. -56- (c) (i) All funds and Instruments in the Concentration Account, the operating accounts of any Company Affiliate with the Agent, and any other account of any Company Affiliate with the Agent or any Bank, shall be further security for the payment of the Obligations, and each Company Affiliate hereby collaterally assigns and transfers to the Agent for the benefit of the Banks all of its right, title and interest in and to such accounts, funds and instruments. Such assignment shall be irrevocable, absolute and continuing, and shall be independent of any right of banker's lien or set-off. (ii) Each Company Affiliate expressly authorizes and consents to the ability of the Agent and any Bank to charge, in their sole discretion, the Concentration Account and any other account, and recover from the funds on deposit therein, from time to time during the continuance of an Event of Default, any and all Obligations due the Agent and/or the Banks. All such Obligations, as well as chargebacks to the Borrower for protested remittances, negative float charges and other such items, may also be charged as Revolving Credit Advances by the Banks to the Company Affiliates to be repaid in accordance with this Agreement. ARTICLE IX NEGATIVE COVENANTS The Company Affiliates jointly and severally covenant and agree that, from the date hereof, unless the Agent shall otherwise give prior consent in writing: Section 9.01. Minimum Cash Flow. For each period of four (4) consecutive fiscal quarters, the Company Affilites shall maintain minimum Adjusted Cash Flow as follows: Fiscal Quarters Ending In the Following Periods Amount Closing through 09/30/98 $ 5,000,000 10/01/98 through 09/30/99 6,250,000 10/01/99 through 09/30/2000 7,500,000 10/01/2000 through 09/30/2001 9,000,000 10/01/2001 through 09/30/2002 10,800,000 Section 9.02. Ratio of Funded Debt to Cash Flow. The Company Affiliates shall not permit the ratio of Funded Debt at -57- the end of any fiscal quarter to its Adjusted Cash Flow for such fiscal quarter the immediately preceding three (3) fiscal quarters to exceed the following ratios: Fiscal Quarters Ending In the Following Periods Ratio Closing through 06/30/98 2.0 to 1.0 07/01/98 through 12/31/98 2.5 to 1.0 01/01/99 through 12/31/99 3.0 to 1.0 01/01/00 through 12/31/00 3.5 to 1.0 01/01/01 through 12/31/01 3.0 to 1.0 01/01/02 and thereafter 2.5 to 1.0 Section 9.03. Cash Flow Coverage. The Company Affiliates will not permit the ratio of Adjusted Cash Flow to Fixed Charges to be less than 1.50 to 1.0 for any period of four (4) consecutive fiscal quarters, commencing for the four (4) fiscal quarters ending March 31, 1998. Section 9.04. Capitalization. The Company Affiliates will not permit Consolidated Capitalization to be less than, at any time (a) $[40,010,000], plus (b) 100% of cumulative net income after December 31, 1997, after tax, without any reduction for losses. Section 9.05. Employee Plans. (a) Borrower or any Related Party will not maintain, or contribute to, a Multiemployer Plan or a Pension Benefit Plan subject to section 412 of the Code or Title IV of ERISA. (b) Borrower will not take, or omit to take, and will cause all Related Parties not to take, or omit to take, any action which will result in any representation or warranty becoming materially incorrect as of the date of such action. (c) Borrower or any Related Party will not increase the benefits of any Borrower Plan, adopt, or contribute to, any Plan that is not listed on Exhibit 7.08 or commence coverage under, or contributions to, any Plan on behalf of a new group of employees whether or not as a result of any business acquisition of Borrower or any Related Party, except (i) that, in connection with any Permitted Acquisition, Borrower may add employees to existing Borrower Plans or may adopt additional Plans that cover added employees and (ii) that Borrower may make -58- non-material changes to the benefits under any Plan. The level of benefits under any such adopted additional plans may only be increased as required by law or as otherwise permitted under this Agreement. Section 9.06. Indebtedness. No Company Affiliate shall incur, create, assume or suffer to exist, directly or indirectly, any Indebtedness except (a) the Obligations; (b) Indebtedness secured by Permitted Liens; (c) Indebtedness incurred by reason of a Permitted Acquisition, (d) intercompany Indebtedness as between any two Company Affiliates; (e) Indebtedness for money borrowed disclosed in the Financial Statements, in the amount of Indebtedness shown herein, but not including extension or acceleration of maturity thereof, or payment dates thereunder, increase of principal, interest or other amounts due thereunder, change of interest rate thereunder or any other modification of the terms or provisions thereof; and (f) current trade accounts payable and other liabilities and accruals incurred in the ordinary course of business. Section 9.07. Guaranties. No Company Affiliate shall assume, guarantee, endorse or otherwise be or become liable upon or with respect to any obligations of any Person (other than of Company Affiliates) other than the endorsement of negotiable or other instruments for deposit or collection or similar transactions in the ordinary course of business. Section 9.08. Negative Pledge. No Company Affiliate will create, assume, incur or permit to exist any Lien in respect of any of its property or assets of any character (whether owned on the date hereof or hereafter acquired) nor covenant with any creditor, by way of making a negative pledge to such creditor comparable in any respect to the foregoing negative pledge, provided, however, that the restriction set forth in this Section shall not prohibit any of the following ("Permitted Liens"), none of which shall have priority over the Liens described in subsection (a) except for Senior Liens: (a) Liens granted in the Collateral to the Banks; (b) Liens for taxes or assessments or other governmental charges or levies not yet due and payable, or otherwise, if and to the extent that the amount, validity or applicability thereof shall currently be contested in good faith by appropriate proceedings by the owner of the property so charged and such owner shall have set aside on its books reserves -59- (segregated to the extent required by sound accounting practice) deemed by it or them to be adequate with respect thereto; (c) Liens under workers' compensation, unemployment insurance, Social Security, or similar legislation; (d) Liens, deposits, or pledges to secure the performance of bids, tenders, contracts (other than contracts for the payment of money), leases (permitted under the terms of this Agreement), or public or statutory obligations; (e) Liens imposed by law, such as mechanics', materialmen's, landlords', warehousemen's, and carriers' Liens, and other similar Liens, (i) securing obligations incurred in the ordinary course of business which are not past due for more than thirty (30) days; (ii) which do not in the aggregate materially detract from the value of such property or assets or materially impair the use thereof in the operation of the business of the Company Affiliates, or (iii) which are being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and for which appropriate reserves have been established and so long as no foreclosure, distraint, sale or other similar proceedings shall have been commenced with respect thereto; (f) Purchase-money security interests or other Liens not exceeding in amount 100% of the purchase price of the property encumbered thereby and securing not more than $500,000 in the aggregate at any one time outstanding, which have been created or exist at the time of purchase or within 120 days thereafter, on property or assets acquired after the date hereof for the purpose of securing payment of the remainder due of the purchase price; provided that, no such Liens shall extend to or cover any other property or assets; (g) Judgments and other similar Liens, in the aggregate amount of $100,000 or less, arising in connection with court proceedings, provided that such Liens are removed and vacated within 90 days, or the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being contested in good faith any by appropriate proceedings; (h) Easements, rights-of-way, restrictions, and other similar encumbrances which, in the aggregate, do not materially interfere with the occupation, use, and enjoyment by Borrower or any Company Affiliate of the property or assets -60- encumbered` thereby in the normal course of business or materially impair the value of the property subject thereto; and (i) Liens existing on the date hereof listed on Exhibit 9.08, but not the extension of the Lien to other property, or the granting of the Lien to secure the extension of the maturity, refunding, or modification of such obligation, in whole or in part. Section 9.09. Corporate Reorganizations. No Company Affiliate shall create or acquire any new Company Affiliate, merge with or into or consolidate with any Person, acquire all or a substantial portion of the assets of any Person, or permit any Person to merge with or into or consolidate with it, or agree to do any of the foregoing, or engage in any material business other than those engaged in on the date hereof, or assume or agree to discharge the liabilities or obligations of any other Person, unless permitted under Section 9.10 hereof or unless: (a) the proposed transaction is an internal reorganization, not involving any Person other than one or more Company Affiliates; (b) Borrower gives at least fifteen (15) days' prior written notice and all reasonably requested information to the Agent; (c) any new Company Affiliate complies with Section 8.07 and executes and joins in this Agreement and the other Loan Documents (other than the Notes); (d) any new Company Affiliate grants to the Banks a security interest and/or mortgage on all of its assets pursuant to the Security and Pledge Agreement, a Mortgage or Mortgages and any other necessary documents; and (e) Borrower and any new Company Affiliate deliver to the Banks such legal opinions, record searches and other documents as may be reasonably requested. Section 9.10. Restriction on Acquisitions. (a) Other than pending transactions described on Exhibit 9.10A, no Company Affiliate shall create or acquire any new Company Affiliate, acquire all or a substantial portion of the assets or securities of any other Person, or assume or agree to discharge the liabilities or obligations of any other Person, -61- or agree to do any of the foregoing (by merger, consolidation or otherwise) (any such transaction, an "Acquisition"), unless it does so in a Non-Material Acquisition or Material Acquisition, each as defined below (each referred to herein as a "Permitted Acquisition"). (b) Non-Material Acquisitions. For the purposes hereof, an Acquisition shall be deemed a "Non-Material Acquisition" if: (i) (x) the total Consideration in the Acquisition is less than the lesser of $5 million or ten percent (10%) of the consolidated net worth of the Company Affiliates immediately prior to completion of the proposed Acquisition, or (y) less than fifty percent (50%) of the total Consideration in the Acquisition will be funded from the Revolving Credit Facility; (ii) the Acquisition satisfies each of the conditions set forth in subsection (d) below; and (iii) the Required Banks receive, at least ten (10) Business Days prior to the proposed Acquisition, written notice thereof and information and documents reasonably sufficient to show that the Acquisition is a Permitted Acquisition, and prior to the expiration of such ten (10) day period the Borrower has not received notice from the Agent, either orally or in writing, that the Required Banks disagree that the applicable conditions herein are satisfied. (c) Material Acquisitions. For the purposes hereof, an Acquisition shall be deemed a "Material Acquisition" if it does not satisfy the requirement of subsection 9.10(b)(i) above, but: (i) the Acquisition satisfies each of the conditions set forth in subsections (d) and (e) below; and (ii) the Required Banks receive at least fifteen (15) Business Days prior to the consummation of such Acquisition written notice thereof and information and documents reasonably sufficient to show that the Acquisition is a Permitted Acquisition, and prior to the expiration of such fifteen (15) day period the Borrower has not received notice from the Agent, either orally or in writing, that the Required Banks disagree that the applicable conditions herein are satisfied. -62- (d) Conditions to Non-Material Acquisitions and Material Acquisitions. No Acquisition shall qualify as a Non-Material Acquisition or a Material Acquisition unless it satisfies each of the following conditions precedent: (i) The aggregate amount of Consideration with respect to all Acquisitions shall not exceed $25,000,000 during any twelve (12) month period, and with respect to a single Acquisition shall not exceed $7,000,000; (ii) no Default or Event of Default is in existence at the time of the consummation of such Acquisition or would exist after giving effect thereto; (iii) the Required Banks shall be reasonably satisfied that no liabilities (contingent or otherwise) are being assumed in connection with the Acquisition except for ordinary course liabilities in connection with any operating lease for equipment, trade payables incurred in the ordinary course of business and employment agreements in a reasonable amount as determined by the Required Banks, and other ordinary course liabilities in amount and nature reasonably satisfactory to the Required Banks; (iv) each Company Affiliate shall grant to the Agent a first priority perfected security interest and lien in all securities, real and personal property acquired in such Acquisition, assets acquired in such Acquisition to be subject only to Permitted Liens, and shall execute and deliver to the Agent written confirmations of the liens and obligations provided for in the Security and Pledge Agreement and Surety Agreement (the "Confirmations") and all other documents and items required by Article VI; (v) Borrower shall deliver to the Agent a certificate signed by its chief executive officer or its chief financial officer showing, on a pro forma basis using historical Adjusted Cash Flow of the Person being acquired in the Acquisition, compliance with the financial covenants contained in Sections 9.01 through 9.04 hereof for the full fiscal quarter most recently ended and for the full fiscal year most recently ended, as though such Acquisition had occurred on the first day of such respective periods, and the Required Banks shall be satisfied, in their reasonable discretion, with such calculations and the assumptions used in connection therewith; -63- (vi) Borrower shall deliver to the Agent a certificate signed by its chief executive officer or its chief financial officer, certifying as to such officer's good faith belief that the financial covenants contained in Sections 9.01 through 9.04 hereof will continue to be met for the first four (4) full fiscal quarters following the consummation of such Acquisition, to which shall be attached computations as to such financial covenants in form and substance reasonably satisfactory to the Agent; (vii) Borrower shall deliver to the Agent updated exhibits to the Security and Pledge Agreement as to real property, owned or leased; (viii) the Acquisition must constitute an entire business, division or product line of the seller and the business, division or product line must be one in which the Company Affiliates are already engaged; (ix) the Consideration therefor must consist solely of cash, stock of Borrower and/or notes issued to sellers in connection with the Acquisition in accordance with this Section 9.10, which notes shall be unsecured, provide that no principal, interest, premium or other payment thereunder shall be due until after the sixth (6th) anniversary of issuance, be subject to the subordination provisions in the form of Exhibit 9.10B hereto and otherwise be in form and substance reasonably satisfactory to the Agent as determined in good faith ("Permitted Seller Notes"). (e) Additional Conditions to Material Acquisitions. No Acquisition shall qualify as a Material Acquisition unless it satisfies each of the following conditions precedent as well as each condition precedent in subsection (d) above: (i) the aggregate amount of cash paid in connection with the Acquisition shall not exceed (x) 70% of the total Consideration, if the total Consideration is under $5 million, or (y) 60% of the total Consideration if the total Consideration is $5 million or greater; (ii) total Consideration may not exceed 7.0 times the Adjusted Cash Flow of the business being acquired for the immediately preceding four (4) consecutive fiscal quarters; (iii) a business appraisal and analysis of the business, division or product line being acquired, which can be -64- prepared internally by Borrower or obtained from an independent party, shall have been submitted to the Required Banks and shall have been approved in the Required Banks' reasonable discretion; and (iv) the Required Banks shall be satisfied in their reasonable discretion with the nature and type of assets being acquired in connection with any such Acquisition, all Acquisition documentation and all due applicable material diligence relating to the Acquisition, to include due diligence in connection with all matters set forth on the Acquisition and Due Diligence Checklist attached as Exhibit 9.10C hereto, all of the foregoing matters to be certified in writing by the chief executive officer or the chief financial officer of Borrower Agent. Section 9.11. Disposition of Assets. No Company Affiliate shall sell, transfer, lease or otherwise dispose of any of its material properties, rights or assets except for, subject to Section 2.04, (a) obsolete equipment in the ordinary course of business, and (b) transactions permitted under Section 9.09 or 9.13. Section 9.12. Loans, Investments, Etc. No Company Affiliate shall make any loans or advances to, or purchase, acquire, own or make any investment in the stock or obligations of any other Person except (a) the purchase of interest bearing obligations of, or guaranteed by, the United States of America, (b) the purchase of interest bearing obligations, having an original maturity of one (1) year or less, issued by FDIC insured commercial banks and which at the time of purchase shall have an "A" bond rating, (c) the purchase of prime commercial paper which at the time of purchase shall have one (1) of the two (2) highest ratings given to commercial paper by Standard & Poors Rating Group or Moody's Investor Service, Inc., (d) ordinary course travel and payroll advances to employees, and (e) as specifically permitted in Section 9.10. Section 9.13. Sales and Leasebacks; Capital Expenditures. No Company Affiliate shall sell or otherwise transfer and lease back, any real or personal property, or make any Capital Expenditures, except: (a) if the aggregate dollar amount thereof expended in any fiscal year does not exceed 125% of the Company Affiliates' consolidated annual depreciation expense for the -65- prior fiscal year (carryovers of unused expenditures being permitted); (b) Permitted Acquisitions; and (c) The sale and lease back of the property in Chesterton, Indiana. Section 9.14. Payments and Distributions to Affiliates. (a) No Company Affiliate shall: (i) transfer property or make payments to (whether salary, bonus or otherwise) or enter into any other transaction with any present or former shareholder, officer or other Affiliate, or any successor, assign, Affiliate or transferee of any such Person; or (ii) make or agree to make any payment or distribution on account of the purchase, redemption, retirement or other acquisition of any of its shares of capital stock or other securities, whether now or hereafter issued; or (iii) declare or pay, or agree to declare or pay, any dividend or other distribution of assets, whether by way of partial liquidation or otherwise, on or with respect to any shares of capital stock or other securities, whether now or hereafter issued. (b) Notwithstanding subsection (a) above, the following shall be permitted: (i) Payments specifically set forth in Exhibit 7.12; (ii) intercompany transfers or payments as between Company Affiliates; (iii) reasonable compensation for services rendered, but total compensation for Senior Management paid in each fiscal year commencing December 31, 1999 shall not in the aggregate exceed by more than twenty-five percent (25%) total compensation for Senior Management paid in the immediately preceding fiscal year; provided that, compensation permitted but not paid in any fiscal year may be carried over and paid in either of the next two fiscal years. -66- Section 9.15. Lines of Business. No Company Affiliate shall make any change in its line of business. In addition, no Company Affiliate shall make any material change in its charter, by-laws or other constituent documents without at least fifteen (15) days' prior written notice to the Agent. ARTICLE X DEFAULT AND REMEDIES Section 10.01. Default. Each of the following shall be a default (a "Default") hereunder: (a) any Company Affiliate shall fail to pay any principal, whether at maturity thereof, on a date fixed for prepayment, by acceleration, or otherwise, or shall fail to pay interest on any Note, or shall fail to pay any other Obligation which is not being disputed in good faith within five (5) days after the date due and payable; (b) any Company Affiliate shall fail to perform or observe any covenant, condition or agreement contained in this Agreement (other than those referenced in subsection (a) above) or any other Loan Document and, if such failure does not relate to a covenant contained in Article IX and such failure is curable, it shall continue for a period of thirty (30) days; (c) any Company Affiliate shall default in the payment, performance or observance of, or there shall occur any default, breach, violation or event of default in connection with, any agreement under which arises Indebtedness in an amount equal to or exceeding $100,000, and there shall have been no cure with respect thereto within the applicable grace period, if any; (d) Any proceedings shall be instituted, or a case shall be commenced by any Company Affiliate, seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any present or future law relating to bankruptcy, insolvency or reorganization or relief of debtors or seeking the entry of an order for the appointment of a receiver, trustee or other similar official for it or for any substantial part of its property; or if any of the foregoing proceedings shall be instituted or a case commenced against any Company Affiliate seeking the relief and/or remedies above described in this subsection and such proceeding or case -67- shall continue for sixty (60) days, or any order, judgment or decree shall be entered against any Company Affiliate granting the relief sought in any such proceeding or case and shall not be stayed or set aside or vacated within sixty (60) days; or any Company Affiliate shall generally not pay its debts as such debts become due or shall make an assignment for the benefit of creditors or to an agent authorized to liquidate any substantial amount of its assets; or shall take any corporate action to authorize any of the actions set forth above; (e) Any representation or warranty made by or on behalf of any Company Affiliate to the Agent or the Banks in this Agreement or in any other Loan Document shall prove to have been materially (as to the Company Affiliates as a whole) false and misleading on the date as of which made; (f) A final judgment or judgments for the payment of money (other than those which an insurance company has agreed in writing to pay) in excess of an aggregate of $500,000 shall be rendered against any Company Affiliate and such judgment or judgments shall remain undischarged, unstayed on appeal, unbonded and undismissed for a period of thirty (30) consecutive days or such longer period as shall be permitted by rules of practice of the judicial body which has jurisdiction during which the execution shall not be effectively stayed; (g) Any attachment, levy, tax lien or garnishment shall be issued against any property having a value of $100,000 or more in which any Company Affiliate has an interest and shall remain undischarged, unstayed on appeal, unbonded and undismissed for a period of thirty (30) consecutive days; (h) Any attachment, levy, garnishment or similar legal process involving $100,000 or more shall be served upon the Agent as a result of any claim against any Company Affiliate and shall remain undischarged, unstayed on appeal, unbonded and undismissed for a period of thirty (30) consecutive days; (i) The dissolution, merger, consolidation, or the sale or change in control (as "control" is defined in Rule 12b-2 under the Securities Exchange Act of 1934 as amended) of Borrower, or transfer of any substantial portion of Borrower's assets, or if any agreement for such dissolution, merger, consolidation, change in control, sale or transfer is entered into by Borrower. There shall be conclusively presumed to have been a change in control if any one of the Chief Executive Officer, Chief Financial Officer or Chief Operating Officer of -68- Borrower in office on the date hereof ceases to serve in such capacity for whatever reason and is not replaced within sixty (60) days with a person reasonably satisfactory to the Required Banks; (j) If any Company Affiliate shall fail to remit promptly when due to the appropriate government agency or authority depository, any amount in excess of $100,000 in the aggregate collected or withheld from employees of any Company Affiliate for payroll taxes, Social Security payments or similar payroll deductions; (k) If any Company Affiliate shall attempt to terminate or disclaim the Obligations or its liability therefor or if any Company Affiliate shall attempt to invalidate or declare unenforceable or void any Loan Document or the Banks' Liens in the Collateral or challenge the first priority status thereof; or (l) The occurrence of any one or more of the following, which, in the opinion of the Required Banks, would have a material adverse effect either individually or cumulatively, on the financial condition of Borrower: (i) With respect to any Plan, Borrower and/or any Subsidiary or any other "party-in-interest" or "disqualified person" engages in any transaction or transactions which in the aggregate would foreseeably result in a direct or indirect material liability to Borrower and/or any Subsidiary under Title I of ERISA or Section 4975 of the Code; (ii) With respect to any Pension Benefit Plan, Borrower and/or and Subsidiary permits any accumulated funding deficiency (as defined in Section 412 of the Code) to exist, whether or not waived, or seeks or is granted a waiver or extension of any amortization period of the minimum funding standard (as defined in Section 412 of the Code); (iii) With respect to any Pension Benefit Plan, Borrower and/or any Subsidiary incurs material liability under Section 4062, 4063 and/or 4064 of ERISA; (iv) With respect to any Multiemployer Plan, Borrower and/or any Subsidiary incurs any withdrawal liability as a result of a complete or partial withdrawal within the meaning of Sections 4203 and 4205 of ERISA, or any material liability as a result of a termination within the meaning of Sections 4041A of -69- ERISA, or any other material liability under Section 4201 or 4204 of ERISA; (v) With respect to any Pension Benefit Plan or Multiemployer Plan, the occurrence of a Reportable Event (if after the application of any exception or waiver of the notice requirement, any Company Affiliate is subject to any material liability in addition to the notice requirement); (vi) With respect to any Pension Benefit Plan, the IRS determines that a Pension Benefit Plan fails to qualify under Code Section 401 and the trust created thereunder is not exempt under Code Section 501; or (vii) With respect to any Plan, the Borrower and/or any Subsidiary incurs material liability under Sections 4980B of the Code. Section 10.02. Remedies. At any time and from time to time, in the event any one or more of the foregoing Defaults shall occur and be continuing, the Agent in its discretion may, or if requested by the Required Banks shall, by written notice to Borrower, at the same or different times, terminate forthwith the Credit Facility and/or refuse to make any further Loans and/or declare all outstanding Notes and interest accrued thereon, and all other Obligations hereunder and thereunder to be immediately due and payable, and in the case of such notice, and automatically without the necessity of such notice or declaration in the case of an Default under Section 10.01(d) above: (a) The Banks shall have no further obligation to make any further Loans or extend credit hereunder, and all Notes, interest an other Obligations of the Company Affiliates to the Agent or the Banks shall become and be forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived, and the Credit Facility shall automatically terminate; (b) The Agent shall have such rights and remedies in respect of the Collateral or any portion thereof as provided by applicable law, including, without limitation, the Uniform Commercial Code, and such other rights and remedies in respect thereof which it may have at law or in equity under this Agreement or the other Loan Documents, including without limitation, the right to enter any premises where any Collateral is located and take possession of the same without demand or notice and without prior judicial hearing or legal proceedings, -70- which each Company Affiliate hereby expressly waives, and to sell all or any portion of the Collateral at public or private sale without prior notice except as otherwise required by law (and if notice is required by law, after ten (10) days' prior written notice) at such place or places and at such time or times and in such manner and upon such terms, whether for cash or on credit, as the Agent in its sole discretion may determine; upon any such sale of any of the Collateral, the Agent or any Bank may purchase all or any of the Collateral being sold, free from any equity or right of redemption; (c) The Company Affiliates shall promptly upon demand by the Agent assemble the Collateral and make it available to the Agent at a place to be designated by the Agent which shall be reasonably convenient to the Agent and Borrower; the right of the Agent under this Section 11.02 to have the Collateral assembled and made available to it is of the essence of this Agreement and the Agent may, at its election, enforce such right by a bill in equity for specific performance; (d) Each Company Affiliate waives and releases any right to require the Agent to collect any of the Obligations from any item of the Collateral under any theory of marshalling of assets, or otherwise, and specifically authorizes the Agent to apply any of the Collateral against any of the Obligations in any manner that the Agent may determine; (e) The Agent shall apply the moneys held by it hereunder and the proceeds of any realization on Collateral, first, to the payment of the reasonable costs and expenses incurred by the Agent in connection with any such sale or collection, including without limitation reasonable legal expenses and costs relating to the maintenance, preservation and/or storage of the Collateral; second, to the payment of outstanding fees, charges, expenses and other costs (including reasonable attorney's fees) owed to the Agent pursuant to the performance of its obligations under this Agreement and under the Master Letter of Credit Facility; third, to the Banks pari passu and in proportion to their Distributable Shares, to be applied as the Agent may elect in its sole discretion in payment of the Obligations evidenced by the Notes and arising under the Master Letter of Credit Agreement (including interest thereon) or any extension, renewal, refinancing or refunding thereof, first to interest and then to principal; and fourth, to the Banks pari passu and in proportion to their Distributable Shares in payment of Obligations (including interest thereon) other than those -71- described above to be applied as the Agent may elect in its sole discretion in payment of the Obligations; and (f) If such moneys and proceeds are insufficient to pay all of the foregoing and any other amounts required by law, the Company Affiliates shall be liable for any deficiency. Section 10.03. Remedies Cumulative. No remedy herein conferred upon the Agent or the Banks or the holder of any Note is intended to be exclusive of any other remedy and each and every such remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise. Section 10.04. Remedies Not Waived. No course of dealing between the Company Affiliates and the Agent or any Bank or the holder of any Note or any delay on the part of any of them in exercising any rights or remedies hereunder or under applicable law shall operate as a waiver of any rights or remedies of any of them, whether arising hereunder or under any loan document related hereto or under applicable law. ARTICLE XI THE AGENT The Banks and the Agent agree among themselves as follows and no Company Affiliate nor any other Person shall have any obligations, rights or remedies with respect to this Article: Section 11.01. Appointment and Authority of Agent. (a) Each Bank, and each subsequent holder of any Note, by its acceptance or purchase thereof, hereby appoints the Agent to serve in such capacity under this Agreement and the other Loan Documents. Each Bank, and each subsequent holder of any Note, by its acceptance thereof, hereby irrevocably authorizes the Agent: (i) to take such action on its behalf under this Agreement and the Loan Documents and to exercise such powers and to perform such duties under this Agreement and the Loan Documents as are delegated to or required by this Agreement and the Loan Documents together with all such powers as are reasonably incidental thereto, (ii) to take such action as the Agent shall consider necessary or advisable for the protection, collection or enforcement of the Notes, the other Obligations and the Collateral, including, without limitation, the institution -72- and maintenance of any action, suit, or claim for the collection and enforcement of the foregoing and the filing of proofs, claims and documents in connection therewith, and (iii) to perfect the Banks' security interest in Collateral which, in accordance with Article 9 of the Uniform Commercial Code, can be perfected only by possession. (b) In furtherance and not in limitation of subsection (a) above, but subject to Section 11.02(a) below, the Agent may, without notice to or consent from any Bank, obtain, waive or otherwise deal with all instruments (including instruments for the payment of money), certificates (including those evidencing securities), insurance, titles, issues concerning perfection of liens, landlord and mortgagee waivers, recordation taxes, filing fees and any other document and matter whatsoever relating to the Collateral or the Obligations. (c) The Agent may employ agents and attorneys-in-fact and shall not be responsible for the negligence or misconduct of any such agents or attorneys-in-fact selected by it with reasonable care. The Agent may exercise its powers and execute its duties by or through its employees, co-agents or agents. Neither the Agent nor any of its directors, officers, employees, co-agents or agents shall be liable to the Banks for any action taken or omitted to be taken by it or them under or in connection with the Loan Documents or this Agreement: (i) at the request or with the approval of the Required Banks, or (ii) unless it is clearly shown that there has been gross negligence or willful misconduct on the part of the Agent. (d) The Agent shall be entitled to rely on any communication, instrument or document believed by it to be genuine and correct and to have been signed or sent by the proper person or persons and with respect to all legal matters shall be entitled to rely on the advice of legal advisors selected by it concerning all matters relating to this Agreement or the other Loan Documents and its duties hereunder and thereunder, and shall not be liable to any of the Banks or to any holder of a Note for the consequences of such reliance. (e) The Agent, as such, shall not be required to expend any of its own money to make up the full amount required to make any Loan. Should the Agent nevertheless incur any expense as a consequence of the failure of any Bank to make available to the Agent its Ratable Share of the Facility as requested in accordance with this Agreement, such Bank shall be obligated to pay to the Agent on demand the amount expended by -73- the Agent out of its own funds as a consequence of the failure of such Bank while such Bank is in default to the Agent hereunder. During the continuance of any such default, as between the Agent and such Bank, the principal amount of Loans owed to the Bank for whose account such Loan was made shall be deemed to be reduced, so long as the default continues, by the amount not remitted by it to the Agent to make up the amount of such Loan and such principal amount and interest thereon shall be deemed assigned to and collectible by the Agent for its own account against the amount of its claim under the preceding sentence. If and to the extent any Bank shall not have made any amount available to the Agent on the date due under this Agreement, such Bank agrees to pay interest on such amount to the Agent forthwith on demand for each day from and including the date on which such payment was to be made but excluding the date such amount is made available to the Agent. Such interest shall be determined at a rate per annum equal to the Federal Funds Rate from time to time in effect, based upon a year of 360 days. (f) The Agent may at all times deal solely with the several Banks for all purposes of this Agreement and the other Loan Documents and the protection, enforcement and collection of the Notes and the Obligations, including the acceptance and reliance upon any certificate, consent or other document of such Banks, notwithstanding possession by the Agent of actual notice that the participation of any Bank in all or part of the Facility has been assigned to another person or entity. The Agent may, however, in its discretion, but on notice to such Bank, (i) pay to any assignee of all or part of a Bank's Ratable Share in the Credit Facility the share so assigned by said Bank of any division of payments pursuant to this Agreement, and (ii) in lieu of dealing with a Bank hereunder, deal with any person or entity whom said Bank shall have advised the Agent to be the assignee of all of said Bank's participations in the Credit Facility hereunder and rely upon any certificate, consent or other document of said person or entity (in lieu of any such document on the part of said Bank), for all purposes of this Agreement and the other Loan Documents and the protection, enforcement and collection of the Notes and the other Obligations, and the Agent shall be fully protected in taking or omitting to take any action permitted by the foregoing clauses (i) and (ii). In the event that the Agent shall have requested, by notice in writing sent by registered mail, the consent of the Banks in any matter relating to this Agreement, and the Banks shall fail, for fifteen (15) days after the giving of any such notice, to respond to the Agent, the Agent may take such action and assert such rights as it deems to be advisable in its -74- discretion for the protection of the interests of the holders of the Notes. (g) In relation to its Ratable Share of the Revolving Credit Facility and the Notes, the Agent, in its capacity as a Bank, shall have the same rights, powers and obligations hereunder as any Bank and may exercise such rights and powers as though it were not the Agent. (h) This Agreement is not to be deemed a loan by any Bank to the other Banks nor a pledge of the rights hereunder by the Agent to the Banks. Each of the Banks shall be deemed an owner of the debt evidenced by the Notes held by such Bank. Section 11.02. Responsibilities of Agent. (a) In performing its duties and functions under this Agreement and the Loan Documents, the Agent will endeavor to exercise the same care which it normally exercises in making and handling loans and in handling collateral in which it alone is interested, but it does not assume any further responsibility. Agent shall act solely as an administrative representative of the Banks and does not assume and shall not be deemed to have assumed any obligation toward or relationship of agency or trust with or for any Bank or Borrower. (b) In the event that (i) the Borrower fails to pay when due the principal of or interest on any Note or any fee required by this Agreement or any other Obligation, or (ii) the Agent receives a Notice of Default or obtains actual knowledge of the occurrence of a Default, the Agent shall give telephonic notice thereof to the Banks (promptly confirmed in writing), and shall take such action with respect to such Default as it shall be directed in writing to take by the Required Banks. Unless and until the Agent shall have received directions as described above, the Agent may take such action or refrain from taking such action with respect to any matter, including without limitation a Default, as it shall deem advisable and in the best interests of the Banks, and shall have no liability for such actions or omissions. The Agent shall make available to each Bank copies of any and all documents in the possession of the Agent in connection with this Agreement. (c) The Agent (as used in this Section and in Section 11.03 below, the term "Agent" shall include reference to its Affiliates and its own and its Affiliates' respective officers, shareholders, directors, employees and agents) shall -75- not: (i) have any duties or responsibilities except those expressly set forth in this Agreement or the other Loan Documents, and shall not by reason of this Agreement or the other Loan Documents be a trustee for any Bank; (ii) be responsible to any Bank for any recitals, statements, representations or warranties contained in this Agreement or the other Loan Documents, or in any certificate or other document referred to or provided for in, or received by any of them under, this Agreement or the other Loan Documents or for the value, validity, effectiveness, genuineness, enforceability, execution, filing, registration, collectibility, recording, perfection, existence or sufficiency of this Agreement or the other Loan Documents or any other document referred to or provided for herein or therein or any property covered thereby or for any failure by any Person to perform any of its obligations hereunder or thereunder, and shall have no duty to inquire into or pass upon any of the foregoing matters; (iii) be responsible for any mistake of law or fact or any action taken or omitted to be taken by it hereunder or under the other Loan Documents or any other document or instrument referred to or provided for herein or therein or in connection herewith or therewith, including, without limitation, pursuant to its own negligence, except for its own gross negligence or willful misconduct; (iv) be bound by or obliged to recognize any agreement among or between Borrower and any Bank, regardless of whether the Agent has knowledge of the existence of any such agreement or the terms and provisions thereof other than as described in any Notice of Default (as defined in Section 12.04 below) received by the Agent or if the Agent has actual knowledge thereof; (v) be charged with notice or knowledge of any fact or information not herein set out or provided to the Agent in accordance with the terms of this Agreement or the other Loan Documents; (vi) be responsible for any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator; or (vii) be responsible for the acts or edicts of any Governmental Authority. (d) The Agent may treat the payee of any Note as the holder thereof until written notice of the transfer thereof shall have been received by it. The Agent shall not be responsible for any recitals, statements, representations or warranties set forth in this Agreement or for the execution, effectiveness, genuineness, validity or enforceability of this Agreement or the Loan Documents, or be liable for failing to make any inquiry concerning the performance or conveyance of any of the terms, provisions or conditions hereof or thereof. The Agent shall not be deemed to have knowledge of the occurrence of a Default or an Event of Default (other than a failure by the -76- Borrower to pay the fees required under this Agreement or to pay when due the principal of, or interest on, any Note) unless the Agent has received written notice from a Bank or the Borrower specifying such Default and stating that such notice is a "Notice of Default." (e) Each Bank acknowledges that it has, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Bank also acknowledges that it will, independently and without reliance upon the Agent or any other Bank, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking any action under this Agreement. Each of the Banks agrees that the Agent shall not have any responsibility for the accuracy or adequacy of any information contained in any document, or any oral information, supplied to such Bank by the Borrower directly or through the Agent. (f) The Agent shall not be bound by any waiver, amendment, supplement or modification to this Agreement or the other Loan Documents which affects its duties under this Agreement and the other Loan Documents unless it shall have given its prior written consent, as Agent, thereto. (g) Each Bank acknowledges that under the Uniform Commercial Code and other applicable law, there are many circumstances in which the Banks' Liens in the Collateral may be subordinate to other Liens, even if such Liens do not appear in record searches conducted on or about the date of this Agreement, that such record searches will necessarily predate the filing or recording date or dates of items filed to evidence the Banks' Liens and other Liens may be filed or recorded in the interim, and that the Banks' Liens in all types of Collateral may not be perfected. Section 11.03. Indemnification of Agent. Each of the Banks agrees to indemnify the Agent (to the extent not reimbursed by the Borrower) in amounts according to such Bank's Ratable Share, on demand, from and against any and all losses, claims, obligations, damages, liabilities, expenses or disbursements of any kind and nature whatsoever (including but not limited to reasonable fees and disbursements of counsel, interest, penalties, attorneys' fees and amounts paid in settlement) which may be imposed on, incurred by or asserted against the Agent in -77- any way related to or arising out of the Loan Documents or this Agreement or any other documents contemplated by or referred to herein or therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof or of any such other documents, including but not limited to the negligence of the Agent, or any action taken or omitted by the Agent, except only such losses, claims, damages, liabilities or expenses clearly and directly resulting from the Agent's gross negligence or willful misconduct. If in the opinion of the Agent the distribution of any amount received by it in its capacity as Agent for the Banks might result in liability, it may refrain from making such distribution until it shall have been indemnified to its satisfaction by the intended recipient or recipients. If a court of competent jurisdiction shall adjudge that any amount received and distributed by the Agent shall be repaid, each Bank or other recipient to whom any such distribution shall have been made shall either repay to the Agent its proportionate share of the amount so adjudged to be repaid or shall pay over the same in such manner and to such persons or entities as shall be determined by such court. The obligations of the Banks under this Section shall survive the termination of this Agreement and the repayment of the Obligations. Section 11.04. Sharing of Set-Offs. Each Bank and each holder of participations in a Note (a "Sharing Bank") agree each with the others (the "Other Banks") that, if at any time a Sharing Bank desires to apply to the Obligations any property of Borrower (including deposit account balances and other credits) which comes into the possession of such Sharing Bank, it shall make such disposition and arrangements with the Other Banks with respect to such property as shall result in each Bank or holder receiving, in respect of the Obligations, its Distributable Share of such property, based upon the outstanding principal amounts of the Obligations and all participations therein, without giving effect to any such application; provided however, that each Bank and holder shall also be obligated at any time and from time to time to make such disposition and arrangements as may be necessary to the end that each Bank and holder receives in respect of the Obligations and all participations therein, its Distributable Share of all applications by reason of the fact that all or any of the moneys obtained by the exercise of its right of set-off or banker's lien must at any time for any reason be restored by the Other Banks to a Company Affiliate or any trustee or receiver for a Company Affiliate or otherwise. -78- Section 11.05. Option to Purchase. (a) In the event that any Bank fails, becomes insolvent, closes or is operated by any regulatory authority (a "Failed Bank"), the other Banks shall have the option to purchase all or a portion of the Failed Bank's Loans for a purchase price equal to the principal amount outstanding of the Failed Bank's Loans being purchased, plus accrued interest thereon. (b) The option provided in this Section shall be exercisable by the sending of written notice to the Failed Bank either (i) signed by all of the Banks other than the Failed Bank, designating the amount of the Failed Bank's Loans being purchased by each such Bank and/or any designee of such Banks, or (ii) signed severally by one or more of the other Banks, each such notice designating the amount of the Failed Bank's Loans to be purchased by the signatory Bank; provided that, in the event that the aggregate amount of the Loans to be purchased designated in all notices sent pursuant to this subsection (ii) exceeds the amount of the Failed Bank's Loans, then each signatory Bank shall have the right and the obligation to purchase that portion of the Failed Bank's Loans as shall result in the Ratable Share of such Banks remaining as nearly as possible proportionate to the Ratable Shares of the other signatory Banks as set forth in Exhibit 2.01 to this Agreement immediately prior to the giving of such notices (not to exceed the amount of the Failed Bank's Loans which such signatory Bank opted to purchase in its notice). (c) (i) In the event of the purchase of all or part of a Failed Bank's Loans under this Section, (i) if all of the Failed Bank's Loans are purchased, the Failed Bank unconditionally agrees to forward immediately to the Agent the original of this Agreement and the other Loan Documents (as executed) (including, without limitation, the original of the Borrower's Notes evidencing the Failed Bank's Loans) in its possession, together with such other documents, files and records as may be necessary, in the opinion of the Agent, to institute appropriate collection and/or foreclosure proceedings under the Loans; (ii) in the event of the purchase of less than all of a Failed Bank's Loans under this Section, the Failed Bank unconditionally agrees to return immediately all Notes in its possession to the Agent, and the Borrower shall issue new Notes to the Failed Bank and the purchasing Bank(s) in accordance with the amounts of the Failed Bank's Loans being purchased, (iii) Exhibit 2.01 to this Agreement shall be automatically amended to reflect the amounts of the Loans then held by the Banks, and this Agreement and all other Loan Documents shall automatically be -79- amended to reflect the amounts of the Loans thereafter being held by each of the Banks; (iv) the Failed Bank shall immediately turn over any Collateral in its possession to the Agent to be held pro rata for the Banks in accordance with their Ratable Shares, as amended; (v) the Failed Bank shall join in any demand letter or other communications forwarded by the purchasing Banks to the Borrower; and (vi) the Failed Bank shall execute and deliver such additional documents and instruments in favor of the purchasing Bank(s) or the Agent as may be deemed to be necessary or desirable by the Agent to permit the purchasing Bank(s) or the Agent to foreclose against Collateral securing the Loans under applicable state law procedures, to exercise any right or remedy with this Agreement, this Agreement or the Loan Documents, or otherwise to evidence or perfect the purchase of the Loans pursuant to this Section. (d) In furtherance of the provisions of this Section, the Failed Bank hereby unconditionally and irrevocably grants (such grant being coupled with an interest) to the Agent a power of attorney to execute, deliver, file, and/or record all such instruments of transfer, agreements, certificates, forms and other documents, and to take such other actions which are necessary or desirable in the sole discretion of the Agent to consummate the transactions set forth in this Section, or to otherwise carry out the intent of this Section. ARTICLE XII MISCELLANEOUS Section 12.01. Right of Set-Off. In addition to all other rights and remedies available to each Bank, each Bank and the holder of any Note or participation in a Note, after the occurrence but only during the continuance of a Default, independent of any security interest, shall have the right to set-off against the unpaid balance of all the Notes and all other Obligations of any Company Affiliate any debt owing to any Company Affiliate by such Bank or holder, including, without limitation, any funds in any deposit account now or hereafter maintained by Borrower with such Bank or holder. Each Company Affiliate hereby confirms each Bank's and each such holder's right of banker's lien or set-off. Each Company Affiliate agrees that any holder of such participation may exercise any and all rights of set-off in accordance with this Section with respect to any and all moneys now or hereafter owing by such holder to such Company Affiliate in the amount of such participation. -80- Section 12.02. No Discharge. Until the Obligations have been fully and finally paid and may not under applicable law be required to be repaid by the Banks, the Obligations of the Company Affiliates under this Agreement and under the Notes shall be absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, discharged or in any way affected by: (a) any exercise or nonexercise of any right, remedy, power or privilege under or in respect of this Agreement or applicable law, including, without limitation, any failure to set off or release in whole or in part by the Agent or any Bank any balance of any deposit account or credit on its books in favor of Borrower or any waiver, consent, extension, indulgence or other action or inaction in respect of any thereof, or (b) any other action or thing (other than payment) or omission or delay to do any other action or thing which may or might in any manner or to any extent vary the risk of the Banks or would otherwise operate as a discharge of Borrower as a matter of law. Section 12.03. Amendment; Waiver. No amendments or waiver of any provision of the Loan Documents or the Notes, nor consent to any departure by the Company Affiliates or the Banks therefrom, shall in any event be effective unless the same shall be in writing and signed by the Company Affiliates and the Required Banks; provided, however, that no amendment, waiver or consent shall, unless in writing and signed by all the Banks, do any of the following: (a) waive any of the conditions specified in Article VI hereof, (b) increase the amounts or extend the terms of the Banks' commitments or subject the Banks to any additional obligations, (c) reduce the principal of, or interest on, the Notes or any fees hereunder, (d) postpone any date fixed for any payment of principal of, interest on, the Notes or any fees hereunder, (e) change the percentage of the Ratable Shares or of the aggregate unpaid principal amount of the Notes, or the number of Banks which shall be required to take action hereunder, (f) release any of the Collateral, (g) subordinate the Agent's Lien in the Collateral or consent to another Lien in the Collateral on a basis pari-passu with that of the Agent, or permit any additional indebtedness to be secured by the Agent's Lien in the Collateral, or (h) change any provisions of this Section; provided, further, that an amendment, waiver or consent with respect to Article XI hereof shall be effective if signed by the Agent and the Required Banks, but no approval thereof by any Company Affiliate shall be necessary. Any waiver, consent or approval shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any Company Affiliate in any case shall entitle any Company Affiliate to any other or further notice or demand in the same, similar or -81- other circumstances. Each holder of any Note outstanding shall be bound by any modification, waiver, or consent authorized under this Section, whether or not such Note shall have been marked to indicate such modification, waiver or consent. Section 12.04. Severability. Any provision of this Agreement prohibited by the laws of any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition, or modified to conform with such laws, without invalidating the remaining provisions of the Loan Documents, and any such prohibition in any jurisdiction shall not invalidate such provisions in any other jurisdiction. All rights, remedies and powers provided in the Loan Documents may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law, and all the provisions of the Loan Documents are intended to be subject to all applicable mandatory provisions of law which may be controlling and to be limited to the extent necessary so that they will not render the Loan Documents illegal, invalid, unenforceable, in whole or in part, or not entitled to be recorded, registered, or filed under the provisions of any applicable law. Section 12.05. Borrower Assignees. No interest in the Loan Documents may be delegated or assigned by any Company Affiliate without the prior written approval of the Banks. Any permitted assignee of or successor to a party hereto shall succeed to all rights and benefits, and be bound by all obligations, inuring to such party. Section 12.06. Bank Assignees; Participations. Each Company Affiliate hereby acknowledges and agrees that a Bank may at any time: (a) grant participations in all or any portion of its Ratable Share of the Loans or its Note or of its right, title and interest therein or in or to this Agreement (collectively, "Participations") to any other lending office or to any other bank, lending institution or other entity which has the requisite sophistication to evaluate the merits and risks of investments in Participations ("Participants"); provided, however, that: (i) all amounts payable by the Company Affiliates shall be determined as if such Bank had not granted such Participation; and (ii) any agreement pursuant to which any Bank may grant a Participation: (x) shall provide that such Bank shall -82- retain the sole right and responsibility to enforce the obligations of the Company Affiliates including, without limitation, the right to approve any amendment, modification or waiver of any provisions of this Agreement; (y) such participation agreement may provide that such Bank will not agree to any modification, amendment or waiver of the Loan Documents without the consent of the Participant if such modification, amendment or waiver would reduce the principal of or rate of interest on the Loans or related fees or postpone the date fixed for any payment of principal of or interest on the Loans or related fees; and (z) shall not relieve such Bank from its obligations, which shall remain absolute, to make Advances hereunder; and (b) assign all or any portion of its rights under the Loans in minimum amounts of $5,000,000 with prior written consent of the Agent, together with the payment by such Bank to the Agent of a $3,500 transfer fee, and, except after the occurrence of an Event of Default, with the prior written consent of the Borrower, which shall not be unreasonably withheld. Promptly upon any such assignment, the assignee shall execute a joinder to this Agreement in form satisfactory to the Agent and then shall be deemed a Bank for all purposes hereunder, Exhibit 2.01 shall be amended to reflect the assignment, and the Borrower shall execute and deliver new Notes in the form of Exhibit 2.02 and such other documents as may be appropriate to reflect such assignment. All assignments and participations shall be subject to normal confidentiality with respect to information relating to the Company Affiliates preventing disclosure except in accordance with applicable law, in order to enforce rights and remedies under the Loan Documents and in order to make credit decisions with respect to the Borrower. Section 12.07. Governing Law. The Loan Documents have been negotiated and executed in the Commonwealth of Pennsylvania and shall be construed in accordance with and governed by the laws, including equitable principles but without regard to principles of conflict of laws, of the Commonwealth of Pennsylvania, except to the extent that the effectiveness, perfection or priority of its lien in Collateral is governed by the laws of a state other than the Commonwealth of Pennsylvania. Section 12.08. Headings. The Article and Section headings in the Loan Documents are for convenience only and shall not affect the construction hereof. -83- Section 12.09. Notices. Any notice under the Loan Documents shall be in writing and shall be conclusively deemed to have been received by a party hereto and to be effective on the day on which delivered to such party at its address set forth on the signature pages hereto (or at such other address as such party shall specify to the other parties hereto in writing), or, if sent by certified mail, on the third business day after the day on which mailed, addressed to such party at such address. Section 12.10. Survival of Agreement. All covenants, agreements, representations and warranties made herein and in the other Loan Documents are for the benefit of the Agent and the Banks, shall survive the making by the Banks of the Revolving Credit Advances and the execution and delivery by Borrower to the Banks of the Notes and shall continue in full force and effect until the date on which all Obligations have been fully and finally paid and satisfied. Section 12.11. Counterparts. The Loan Documents may be executed in two or more counterparts, each of which shall constitute an original, but all of which, when taken together shall constitute but one instrument. Section 12.12. Canceled Notes. Upon the payment in full of the principal of, and interest on, the Notes and all other Obligations hereunder, and the occurrence of the Termination Date, the Banks shall mark such Notes "canceled" or "paid" or some similar phrase and shall return the same promptly to Borrower, and the Banks shall in a reasonably prompt manner after request by Borrower, execute and deliver to Borrower all UCC Termination Statements, mortgage releases and other necessary documents presented to them by the Borrower in order to evidence the release of the Liens securing the Obligations. Section 12.13. Conflicts Among Loan Documents; Merger. In the case of any inconsistency between a provision of this Agreement and a provision of another Loan Document, the provision of this Agreement shall control. In addition, the $3,000,000 Master Demand Note dated January 20, 1998 issued by Borrower to CoreStates Bank, N.A. and the related Security Agreement dated January 20, 1998 shall merge into and be superseded and restated by, respectively, the Notes and the Security Agreement dated the date hereof. Section 12.14. Appointment and Authorization of Borrowing Agent. Each operating Company Affiliate hereby designates and appoints Borrower as its borrowing agent under -84- this Agreement and each of the other Loan Documents and Borrower hereby acknowledges such designation and accepts such appointment. Each Company Affiliate hereby irrevocably authorizes and directs Borrower to take such action on its behalf under the respective provisions of this Agreement and the other Loan Documents, and any other instruments, documents and agreements referred to herein or therein, and to exercise such powers and to perform such duties hereunder and thereunder as Borrower may deem necessary or desirable. Section 12.15. Joinder of Additional Company Affiliates. From time to time following the Closing Date, each additional Subsidiary of the Borrower shall be joined as an additional Company Affiliate hereunder by means of the execution and/or delivery to Agent of (a) a joinder agreement in form and substance satisfactory to Agent and the Required Banks and (b) such other agreements, documents and instruments as Agent and the Required Banks shall deem necessary or desirable. Section 12.16. Jurisdiction and Venue. IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THE LOAN DOCUMENTS OR THE RELATIONSHIP ESTABLISHED HEREUNDER, THE COMPANY AFFILIATES HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA WHERE THE BANK MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. THE COMPANY AFFILIATES AGREE THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON Borrower BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO BORROWER. Section 12.17. Waiver of Jury Trial. EACH PARTY HERETO WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THE LOAN DOCUMENTS OR THE RELATIONSHIP ESTABLISHED HEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE BANKS TO ENTER INTO THE LOAN DOCUMENTS. THE COMPANY AFFILIATES REPRESENT AND ACKNOWLEDGE THAT EACH HAS REVIEWED ALL OF THE PROVISIONS OF THE LOAN DOCUMENTS WITH AN ATTORNEY, INCLUDING WITHOUT LIMITATION THE IMMEDIATELY PRECEDING CAPITALIZED SECTIONS. THE COMPANY AFFILIATES UNDERSTAND THAT THE PROVISIONS OF SUCH SECTIONS INVOLVE THE WAIVER OF CERTAIN CONSTITUTIONAL RIGHTS, AND ACKNOWLEDGE THAT -85- EACH HAS KNOWINGLY AND VOLUNTARILY WAIVED SUCH RIGHTS AFTER REVIEWING THE PROVISIONS OF SUCH SECTIONS WITH ITS ATTORNEY. -86- IN WITNESS WHEREOF, the Company Affiliates, the Agent and the Banks have caused this Agreement to be duly executed and delivered as of the day and year first above written. CORESTATES BANK, N.A. for itself and as Agent By: /s/ William Johnston ----------------------------- William Johnston Vice President Address: Broad & Chestnut Streets P.O. Box 7618 Philadelphia, PA 19101 With a copy to: Corestates Bank, N.A. Meetinghouse Business Center 2240 Butler Pike Plymouth Meeting, PA 19462 Attn: William Johnston IMAGEMAX, INC. IMAGEMAX OF INDIANA, INC. IMAGEMAX OF SOUTH CAROLINA, INC. IMAGEMAX OF TENNESSEE, INC. IMAGEMAX OF ARIZONA, INC. IMAGEMAX OF NEBRASKA, INC. IMAGEMAX OF OHIO, INC. IMAGEMAX OF NEW YORK, INC. IMAGEMAX OF OREGON, INC. IMAGEMAX OF CALIFORNIA, INC. IMAGEMAX OF VIRGINIA, INC. AMMCORP ACQUISITION CORP. IMAGEMAX OF DELAWARE, INC. Attest: By: /s/ Andrew R. Bacas By: /s/ James D. Brown ---------------------- ------------------- Andrew R. Bacas James D. Brown Secretary Treasurer Address: 1100 Hector Street Suite 396 Conshohocken, PA 19428 [corporate seal] Attn: President -87- Exhibit 2.01 Banks and Ratable Shares Revolving Credit Facility CoreStates Bank, N.A. Broad & Chestnut Streets $30,000,000 Philadelphia, PA 19101 Exhibit 2.02(A) Revolving Credit Note Philadelphia, PA $25,000,000 As of March ____, 1998 For value received, the undersigned ("Borrower") promises to pay to the order of CORESTATES BANK, N.A., as Agent (the "Agent"), on or before the date referenced in paragraph 3 below, the lesser of Twenty-Five Million Dollars ($25,000,000) or the unpaid principal amount outstanding under the Acquisition Facility made available by the Banks to Borrower pursuant to the Credit Agreement referred to in paragraph 1 below, together with interest (computed on the basis of a 360-day year for the actual number of days elapsed) on the unpaid principal balance from time to time outstanding hereunder from the date hereof until payment hereunder in full. Both principal and interest shall be paid in federal funds or other immediately available lawful money of the United States at the main office of the Agent at Broad & Chestnut Streets, Philadelphia, PA 19101, Attention: Loan Department (or such other address as may be designated by the holder hereof in writing). 1. This Note has been executed under, is governed by, and is entitled to the benefits of a Credit Agreement dated as of March _____, 1998, as it may be further amended or restated from time to time (the "Agreement") among Borrower, its Subsidiaries, CoreStates Bank, N.A, for itself and as Agent, and any other Banks becoming party thereto, which Agreement, among other matters, contains provisions for the acceleration of the maturity hereof upon the occurrence of certain stated events. All capitalized terms used herein shall have the same meanings as are assigned to such terms in the Agreement. 2. This Note is secured by Liens on certain Collateral of the Company Affiliates under a Security and Pledge Agreement and Mortgages referenced in the Agreement. 3. Borrower shall pay the principal hereof and all accrued interest on or before the Termination Date. 4. Borrower shall pay interest on the unpaid principal balance from time to time outstanding hereunder from the date hereof until such unpaid principal balance has been paid in full at the rate or rates, and at the times, set forth in the Agreement. Any payment of principal, and, to the extent permitted by law, interest, of or on this Note which is not paid in full when due shall bear interest at the Default Rate. 5. The Agent's records as to the Revolving Credit Advances made by the Banks to Borrower pursuant to the Agreement and the payments made on account of principal hereof, the Revolving Credit Balance, shall be presumed to be complete and correct absent manifest error. 6. The Credit Agreement is incorporated herein by reference, including without limitation Article XII. 7. JURISDICTION AND VENUE. IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THE LOAN DOCUMENTS OR THE RELATIONSHIP ESTABLISHED HEREUNDER, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA WHERE THE BANK MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. THE BORROWER AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON BORROWER BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO BORROWER. 8. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THE LOAN DOCUMENTS OR THE RELATIONSHIP ESTABLISHED HEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE BANKS TO ENTER INTO THE LOAN DOCUMENTS. -2- THE BORROWER REPRESENTS AND ACKNOWLEDGES THAT EACH HAS REVIEWED ALL OF THE PROVISIONS OF THE LOAN DOCUMENTS WITH AN ATTORNEY, INCLUDING WITHOUT LIMITATION THE IMMEDIATELY PRECEDING CAPITALIZED SECTIONS. THE BORROWER UNDERSTANDS THAT THE PROVISIONS OF SUCH SECTIONS INVOLVE THE WAIVER OF CERTAIN CONSTITUTIONAL RIGHTS, AND ACKNOWLEDGES THAT IT HAS KNOWINGLY AND VOLUNTARILY WAIVED SUCH RIGHTS AFTER REVIEWING THE PROVISIONS OF SUCH SECTIONS WITH ITS ATTORNEY. Attest: By: By: ---------------------- ----------------------- Andrew R. Bacas James D. Brown Secretary Treasurer Address: 1100 Hector Street Suite 396 Conshohocken 19428 [corporate seal] Attn: President -3- Exhibit 2.02(B) Revolving Credit Note Philadelphia, PA $5,000,000 As of March ____, 1998 For value received, the undersigned ("Borrower") promises to pay to the order of CORESTATES BANK, N.A., as Agent (the "Agent"), on or before the date referenced in paragraph 3 below, the lesser of Five Million Dollars ($5,000,000) or the unpaid principal amount outstanding under the Working Capital Facility made available by the Banks to Borrower pursuant to the Credit Agreement referred to in paragraph 1 below, together with interest (computed on the basis of a 360-day year for the actual number of days elapsed) on the unpaid principal balance from time to time outstanding hereunder from the date hereof until payment hereunder in full. Both principal and interest shall be paid in federal funds or other immediately available lawful money of the United States at the main office of the Agent at Broad & Chestnut Streets, Philadelphia, PA 19101, Attention: Loan Department (or such other address as may be designated by the holder hereof in writing). 1. This Note has been executed under, is governed by, and is entitled to the benefits of a Credit Agreement dated as of March _____, 1998, as it may be further amended or restated from time to time (the "Agreement") among Borrower, its Subsidiaries, CoreStates Bank, N.A, for itself and as Agent, and any other Banks becoming party thereto, which Agreement, among other matters, contains provisions for the acceleration of the maturity hereof upon the occurrence of certain stated events. All capitalized terms used herein shall have the same meanings as are assigned to such terms in the Agreement. 2. This Note is secured by Liens on certain Collateral of the Company Affiliates under a Security and Pledge Agreement and Mortgages referenced in the Agreement. 3. Borrower shall pay the principal hereof and all accrued interest on or before the Termination Date. 4. Borrower shall pay interest on the unpaid principal balance from time to time outstanding hereunder from the date hereof until such unpaid principal balance has been paid in full at the rate or rates, and at the times, set forth in the Agreement. Any payment of principal, and, to the extent permitted by law, interest, -4- of or on this Note which is not paid in full when due shall bear interest at the Default Rate. 5. The Agent's records as to the Revolving Credit Advances made by the Banks to Borrower pursuant to the Agreement and the payments made on account of principal hereof, the Revolving Credit Balance, shall be presumed to be complete and correct absent manifest error. 6. The Credit Agreement is incorporated herein by reference, including without limitation Article XII. 7. JURISDICTION AND VENUE. IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THE LOAN DOCUMENTS OR THE RELATIONSHIP ESTABLISHED HEREUNDER, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA WHERE THE BANK MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. THE BORROWER AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON BORROWER BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO BORROWER. 8. WAIVER OF JURY TRIAL. EACH PARTY HERETO WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THE LOAN DOCUMENTS OR THE RELATIONSHIP ESTABLISHED HEREUNDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND THE BANKS TO ENTER INTO THE LOAN DOCUMENTS. -5- THE BORROWER REPRESENTS AND ACKNOWLEDGES THAT EACH HAS REVIEWED ALL OF THE PROVISIONS OF THE LOAN DOCUMENTS WITH AN ATTORNEY, INCLUDING WITHOUT LIMITATION THE IMMEDIATELY PRECEDING CAPITALIZED SECTIONS. THE BORROWER UNDERSTANDS THAT THE PROVISIONS OF SUCH SECTIONS INVOLVE THE WAIVER OF CERTAIN CONSTITUTIONAL RIGHTS, AND ACKNOWLEDGES THAT IT HAS KNOWINGLY AND VOLUNTARILY WAIVED SUCH RIGHTS AFTER REVIEWING THE PROVISIONS OF SUCH SECTIONS WITH ITS ATTORNEY. Attest: By: By: ---------------------- -------------------- Andrew R. Bacas James D. Brown Secretary Treasurer Address: 1100 Hector Street Suite 396 Conshohocken 19428 [corporate seal] Attn: President -6- Exhibit 2.03 Credit Request CoreStates Bank, N.A. Broad and Chestnut Streets Philadelphia, PA 19101 Gentlemen: The undersigned ("Borrower") hereby requests a Revolving Credit Advance, as follows, pursuant to the terms of the Credit Agreement dated as of March _____, 1998 (the "Agreement") among Borrower, its Subsidiaries, the Agent and the Banks therein named. Capitalized terms as defined herein shall have the meaning set forth in the Agreement. The requested Revolving Credit Advance is in the amount of $_________ and it shall be disbursed or issued on __________. A. Current Revolving Credit Balance under Acquisition Facility $_________________ Requested Advance $_________________ TOTAL BALANCE AFTER ADVANCE $_________________ (but not more than $25,000,000) Total Available under Acquisition Facility After Advance $_________________ B. (1) Current Revolving Credit Balance under Working Capital Facility $_________________ (2) Eligible Accounts x 80% $_________________ (3) Excess Availability $_________________ Requested Advance - Cash $_________________ - Letter of Credit $_________________ TOTAL BALANCE AFTER ADVANCE $_________________ (but not more than lesser of $5,000,000 or 80% of Eligible Accounts Total Available under Working Capital Facility After Advance $_________________ C. Total Revolving Credit Balance under Revolving Credit Facility After Advance $_________________ (but not more than $30,000,000) Total Available under Revolving Credit Facility After Advance $_________________ The above Revolving Credit Advance(s) shall bear interest at the Base Rate unless Borrower elects another rate pursuant to the Interest Rate Election Notice. Borrower certifies that the foregoing is true, correct and complete as shown on its books and records as of the date hereof. The Revolving Credit Balance outstanding following the disbursement of the proceeds of the requested Revolving Credit Advance will not exceed the Revolving Credit Limit. The Company Affiliates have performed and are in compliance with each of the covenants and agreements to be performed by and/or complied with as of the date hereof under the Agreement and the Loan Documents. No Event of Default or Default has occurred and is continuing. There has been no material adverse change in the consolidated business, operations, properties, or condition, -2- financial or otherwise, of the Company Affiliates since the date of the last financial statements which have been delivered to the Banks. All representations and warranties made by the Company Affiliates in the Agreement are true and correct as of the date hereof, and all conditions precedent to the Agent's and the Banks' obligations thereunder have been satisfied.(1) IMAGEMAX, INC. By: ----------------------- Name: Title: Dated: ------------- - -------------------------------------------------------------------------------- (1) If this Certificate cannot be accurately delivered because of any non-performance, non-compliance, material adverse change, Default or Event of Default, the nature thereof, the period of existence thereof and the action which has been taken or is proposed with respect thereto, shall be set forth on Exhibit A hereto. -3- Exhibit 4.02 Interest Rate Election Notice CoreStates Bank, N.A. Broad and Chestnut Streets Philadelphia, PA 19101 Attention: Syndication Unit Gentlemen: The undersigned ("Borrower") hereby elects the following Interest Rate and Interest Period for the Credit Facility, pursuant to the terms of the Credit Agreement dated as of March ____, 1998 (the "Agreement") among Borrower, its Subsidiaries, the Agent and the Banks therein named. Capitalized terms as defined herein shall have the meaning set forth in the Agreement. The Loan to which this notice applies is in the amount of $___________ and was disbursed or issued on ______________. Interest Rate: ___ Borrower elects to continue present Interest Rate or ___ Borrower elects to convert present Interest Rate LIBOR Loan into Base Rate Loan ___ Base Rate Loan into LIBOR Loan ___ Interest Period: ___ Borrower elects to continue present Interest Period or ___ Borrower elects to change present Interest Period to: LIBOR Loans: ___ 1 month ___ 2 months ___ 3 months ___ 6 months Borrower certifies that, upon the making of the elections set forth herein, it will not have outstanding more than six (6) different LIBOR Loans and Base Rate Loans, combined. IMAGEMAX, INC. Dated: By: ----------------------- ------------------------ Name: Title: -2- Exhibit 8.03 Compliance Certificate CoreStates Bank, N.A. Broad and Chestnut Streets Philadelphia, PA 19101 Ladies and Gentlemen: ImageMAX, Inc., a Pennsylvania corporation ("the Borrower"), and all of the Company Affiliates, have performed and are in compliance with each of the covenants and agreements to be performed and/or complied with by them as of the date hereof under the Credit Agreement dated as of March _____, 1998 (the "Agreement") among the Borrower, its Subsidiaries and the Banks named therein, and the Loan Documents. All capitalized terms used herein shall be defined as described in the Agreement. No Event of Default or Default has occurred and is continuing. There has been no material adverse change in the consolidated business, operations, properties, or condition, financial or otherwise, of the Company Affiliates since the date of the last financial statements which have been delivered to the Banks. All representations and warranties made by the Borrower in the Agreement are true and correct as of the date hereof, and all conditions precedent to the Banks' obligations thereunder have been satisfied.(1) Attached hereto are computations showing compliance with all financial covenants set forth in the Agreement for the fiscal quarter or year as to which this Certificate is being delivered. The undersigned agrees to re-submit such computations until they are in form and substance satisfactory to the Banks. IMAGEMAX, INC. By: --------------------- Name: Title: - ------------------------------------------------------------------------------- (1) If this Certificate cannot be accurately delivered because of any non-performance, non-compliance, material adverse change, Default or Event of Default, the nature thereof, the period of existence thereof and the action which has been taken or is proposed with respect thereto, shall be set forth on Exhibit A hereto. Exhibit 9.10B Subordination Provisions The Subordination Agreement shall be in the form attached, and it shall be specifically stated that the "Indebtedness of Borrower to Bank" shall include without limitation all of the Obligations under the Credit Agreement; however, the Subordination Agreement shall permit payments as to the "Indebtedness of Borrower to Creditor" (but no prepayments or other deviation from the terms of the subordinated note) unless and until an Event of Default under the Credit Agreement has occurred. EX-21 5 SUBSIDIARIES OF THE REGISTRANT Exhibit 21 Subsidiaries of the Registrant - ---------- ------------------------------- Company State of Incorporation - ------- ---------------------- ImageMax of New York, Inc. New York ImageMax of Virginia, Inc. Virginia ImageMax of Nebraska, Inc. Pennsylvania ImageMax of South Carolina, Inc. Pennsylvania ImageMax of Oregon, Inc. Pennsylvania ImageMax of Arizona, Inc. Pennsylvania ImageMax of California, Inc. Pennsylvania ImageMax of Ohio, Inc. Ohio Ammcorp Acquisition Corp. Pennsylvania ImageMax of Indiana, Corp. Indiana ImageMax of Delaware, Inc. Delaware EX-23.1 6 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation of our report included in this Form 10-K, into the Company's previously filed Form S-8 Registration Statement (File No. 333-46463) filed with the Securities and Exchange Commission on February 17, 1998. ARTHUR ANDERSEN LLP Philadelphia, Pa. March 30, 1998 EX-27 7 FDS
5 YEAR DEC-31-1997 DEC-31-1997 1,310,000 0 7,297,000 (375,000) 1,997,000 10,756,000 4,475,000 (94,000) 48,228,000 7,762,000 0 0 0 47,580,000 0 48,228,000 0 3,111,000 2,221,000 0 8,421,000 0 8,000 (7,539,000) 0 (7,539,000) 0 0 0 (7,539,000) (8.13) (8.13)
-----END PRIVACY-ENHANCED MESSAGE-----