Exhibit 99.1 Stock Purchase Agreement executed October 31, 2002
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STOCK PURCHASE AGREEMENT
between
BACE INTERNATIONAL, INC.
and
THE CURA GROUP III, INC.
Dated as of October 31, 2002
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of the 31st
day of October 2002, by and between BACE International, Inc., a North Carolina
corporation, ( the "Seller") and The Cura Group III, Inc., a Florida corporation
("Purchaser"). Certain capitalized terms used herein are defined in Article I.
W I T N E S S E T H:
WHEREAS, Seller is in the business of providing professional employee,
staffing, payroll and other services; and
WHEREAS, Seller executed a Loan Agreement in the amount of $3,600,000
on August 30, 2002 in order to extend its Workers' Compensation insurance policy
for an additional thirty days ("LOC1");
WHEREAS, Seller executed an additional Loan Agreement in the amount of
$3,600,000 on September 30, 2002 in order to extend its Workers' Compensation
insurance policy for an additional thirty days ("LOC2");
WHEREAS, Seller requires an additional $1,530,000 for paid loss capital
in order to continue its Workers' Compensation insurance policy for an
additional sixty days ("LOC3");
WHEREAS, Seller is a licensed professional employer organization
("PEO") in the State of North Carolina operating as StaffAmerica, Inc.
("StaffAmerica").
WHEREAS, Purchaser wishes to buy and Seller wishes to sell all of the
issued and outstanding shares of StaffAmerica;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants, agreements and warranties herein contained, and for good and valuable
consideration, the sufficiency of which are hereby acknowledged, the parties
agree as follows:
DEFINITIONS
Definitions. The following terms shall have the following meanings for
the purposes of this Agreement:
"Affiliate" means, with respect to any specified Person, any other
Person which, directly or indirectly, controls, is under common control with, or
is controlled by, such specified Person.
"Agreement" means this Agreement, including the Disclosure Schedule and
all other exhibits and schedules hereto, as it and they may be amended from time
to time in accordance herewith or therewith, as applicable.
"Assets" means all of the assets, properties, goodwill and rights of
every kind and description, real and personal, tangible and intangible, wherever
situated and whether or not reflected in the most recent Financial Statements,
that are owned or possessed by the Seller.
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"Authority" means any federal, state, provincial or local governmental,
regulatory or administrative body, agency or authority, any court or judicial
authority, any public, private or industry regulatory authority, whether foreign
or domestic, or any Person lawfully empowered by any of the foregoing to enforce
or seek compliance with any applicable law, statute, regulation, order or
decree.
"Balance Sheet" means the unaudited balance sheet of the Seller as of
September 30, 2002.
"Business Day" means any day other than a Saturday, Sunday or other
day on which banking institutions in the State of New York are authorized or
required by law or other governmental action to close.
"Closing" means the consummation of the transactions contemplated
herein.
"Closing Date" has the meaning set forth in Section 2.2.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means StaffAmerica, Inc., a North Carolina corporation.
"Confidential Information" means information which constitutes
Evaluation Material as defined in the Confidentiality Agreement.
"Consulting Agreement" means the agreement set forth in Exhibit A.
"Contract" means any contract, lease, agreement, indenture, mortgage,
note or bond, whether written or oral.
"Customer(s)" or "Customer Base" means, as of the relevant date, the
existing customer(s) of Seller which are receiving service from Seller in the
states as set forth on Exhibit B and the existing Customer(s).
"Disclosure Schedule" means the Disclosure Schedule delivered by the
Seller to Purchaser on the date of this Agreement, as amended, modified or
supplemented pursuant to this Agreement.
"Dispute" has the meaning set forth in Section 10.6.
"Dollars" or numbers preceded by the symbol "$" means amounts in United
States Dollars.
"Employee" means each person who is employed by the Seller as of the
Closing Date, including those persons who are not actively at work as of the
Closing Date.
"Employment Claims" has the meaning set forth in Section 6.9.
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"Encumbrances" means any lien, mortgage, security interest, pledge,
restriction on transferability, defect of title or other claim, charge or
encumbrance of any nature whatsoever on any property or property interest.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Executive Officer" of a Person means any executive officer of such
Person who has been elected or appointed as such by the Board of Directors of
such Person. The Executive Officers of Seller are identified on the Disclosure
Schedule.
"Financial Statements" means the unaudited financial statements of the
Seller as of December 31, 2001 consisting of the balance sheet at such date and
the related statement of earnings for the fiscal year then ended and the
unaudited financial statements of the Seller as of September 30, 2002 consisting
of the balance sheet at such date and the related statement of earnings for the
two month period then ended.
"GAAP" means U.S. generally accepted accounting principles, practices
and interpretations applied on a consistent basis.
"Indemnification Period" has the meaning set forth in Section 9.1.
"Indemnitee" means the Person entitled to, or claiming a right to,
indemnification under Article IX.
"Indemnitor" shall mean a Person obligated to provide indemnification
under Article IX.
"Intellectual Property" means any Copyrights, Patents, Trademarks,
servicemarks, trade names, information, proprietary rights, processes,
technology rights and licenses, trade secrets, franchises, know-how, inventions
and other intellectual property.
"Laws" mean all federal, state and local statutes, codes, ordinances,
rules, regulations, orders, stipulations and other legal authorities applicable
to the Seller.
"Lien" means, with respect to any property or asset, any security
interest, lien, charge, mortgage, deed, assignment, pledge, hypothecation,
encumbrance, easement, restriction, judgment, option, right of first offer,
right of first refusal or interest of another Person of any kind or nature.
"Loss" or "Losses" means any and all actual losses, costs, damages,
penalties and expenses (including reasonable attorneys' fees and expenses and
litigation costs), and any legal or other expenses reasonably incurred in
connection with investigating or defending any claims or actions, whether or not
resulting in any liability.
"Management Agreement" is the agreement set forth in Exhibit C.
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"Material Adverse Effect" means an effect on the operations, results of
operations or condition (financial or otherwise) or prospects of the Seller,
taken as a whole, which is or would be materially adverse; provided, however,
that (i) general economic conditions or developments or general industry
conditions or developments in the telecommunications industry will be
disregarded for purposes of determining a Material Adverse Effect and (ii) any
change arising from or out of any proposed or adopted legislation, law or other
enactment by any Authority will be disregarded for purposes of determining a
Material Adverse Effect.
"Material Contracts" has the meaning set forth in Section 3.7.
"Permits" means any approvals, authorizations, consents, licenses,
permits or certificates by or of any Authority.
"Person" means any individual, corporation, proprietorship, firm,
partnership, limited partnership, limited liability company, trust, association,
Authority or other entity.
"Purchase Price" has the meaning set forth in Section 2.3 .
"Purchaser" has the meaning set forth in the Preamble.
"Related Agreements" means the Management Agreement.
"Restricted Period" has the meaning set forth in Section 6.7.
"Securities Act" means the Securities Act of 1933, as amended.
"Seller" has the meaning set forth in the Preamble.
"Seller's Knowledge" means the actual knowledge of any Executive
Officer of the Seller.
"Shares" means all of the issued and outstanding shares of Seller its
subsidiaries and affiliates.
"Taxes" means any and all taxes, charges, fees, levies, deficiencies or
other assessments of whatever kind or nature including, without limitation, all
net income, gross income, profits, gross receipts, excise, real or personal
property, sales, ad valorem, withholding, social security, retirement, excise,
employment, unemployment, minimum, estimated, severance, stamp, property,
occupation, environmental, windfall profits, use, service, net worth, payroll,
franchise, license, gains, customs, transfer, recording and other taxes, customs
duty, fees assessments or charges of any kind whatsoever, which are imposed by
the United States, or any state, local or foreign government or subdivision or
agency thereof (a "Taxing Authority"), including any liability therefor as a
transferee (including without limitation under Section 6901 of the Code or any
similar provision of applicable Law), as a result of Treasury Regulation
ss.1.1502-6 or any similar provision of applicable Law, or as a result of any
Tax sharing or similar agreement, and such term shall also include any interest,
penalties or additions to tax or additional amount imposed by any Taxing
Authority.
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"Tax Proceeding" has the meaning set forth in Section 3.12.
"Tax Return" means any return, declaration, report, information return
or statement, and any amendment thereto, including without limitation any
consolidated, combined or unitary return or other document (including any
related or supporting information), filed or required to be filed with any
Taxing Authority in connection with the determination, assessment, collection,
payment, refund or credit of any federal, state, local and foreign Tax or the
administration of any Law relating to any Tax.
"Transferred Employee" has the meaning set forth in Section 6.9.
"Value of Accounts Receivable" means the value of all accounts
receivable which are included among the Assets reduced by the percentages set
forth on Exhibit D .
SALE AND PURCHASE OF SHARES
Purchase of Shares. Subject to the terms and conditions of this Agreement,
at the Closing, the Seller shall sell, assign, convey, transfer and deliver to
Purchaser, and Purchaser shall purchase, acquire and take assignment and
delivery of, all of the Seller's right, title and interest in and to the Shares.
Closing. The Closing shall take place at the offices of Levy Boonshoft &
▇▇▇▇▇▇▇▇, P.C., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, at 10:00 A.M. on the
fifth business day after all conditions to closing have been satisfied or on
such other date as is mutually agreed to by Seller and Purchaser. The date on
which the Closing occurs in accordance with the preceding sentence is referred
to in this Agreement as the "Closing Date."
Purchase Price. At the Closing, as consideration for the transfer of the
Assets Purchaser and Seller shall determine a Purchase Price for the Shares
within sixty (60) days from the date of this Agreement as mutually agreed upon.
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REPRESENTATIONS AND WARRANTIES OF
SELLER
The Seller hereby represents and warrants to Purchaser, as of the date
hereof and as of the Closing Date, that, except as set forth in the Disclosure
Schedule:
3.1. Corporate Status. The Company is a corporation duly organized,
validly existing and in good standing under the Laws of the State of North
Carolina and is qualified to do business as foreign corporations in any
jurisdiction where required to be so qualified. The Charter Documents and bylaws
of the Company and the Affiliates that have been delivered to Buyer as of the
date hereof are effective under applicable Laws and are current, correct and
complete.
3.2 Authorization The Seller has the requisite power and authority to
execute and deliver the Transaction Documents to which it is a party and to
perform the Transactions performed or to be performed by it. Each Transaction
Document executed and delivered by Seller has been duly executed and delivered
by Seller and constitutes a valid and binding obligation of the Seller,
enforceable against such the Seller in accordance with its terms.
3.3 Consents and Approvals. Neither the execution and delivery by the
Seller of the Transaction Documents to which it is a party, nor the performance
of the Transactions performed or to be performed by the Seller, require any
filing, consent or approval, constitute a Default or cause any payment
obligation to arise under (a) any Law or Court Order to which any Shareholder is
subject, (b) the Charter Documents or bylaws of the Company or (c) any Contract,
Governmental Permit or other document to which the Company or the Affiliates is
a party or by which the properties or other assets of the Company or the
Affiliates may be subject.
3.4 Stock Ownership
(a) The Seller is the sole record and beneficial owner of all of the
issued and outstanding shares of capital stock of any form, class and
designation (and options to purchase capital stock) of the Company. There are no
existing options, warrants, calls, commitments or other rights of any character
(including conversion or preemptive rights) relating to the acquisition of any
issued or unissued common stock or other securities of the Company.
(b) the Seller recognizes that the Purchaser would have no adequate
remedy at law if the Seller has created, issued or otherwise any shares of the
capital stock not set forth in Schedule 3.4. Therefore, the Seller hereby agrees
and covenants that the existence of any shares not set forth in Schedule 3.4
shall result in the incurring of liquidated damages in the amount of Twenty
Million Dollars ($20,000,000) and the revocation of any of the obligations of
the Purchaser in this Agreement. The parties herein acknowledge that the damages
to the Buyer as a result of the Shareholder's breach of this section could not
be easily computed. This amount is not intended to be a penalty.
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3.5. Financial Statements. Intentionally deleted.
3.6. Title to Assets and Related Matters The Company and the Affiliates
have good and marketable title to, valid leasehold interests in or valid
licenses to use, all of their Assets, free from any Encumbrances except those
specified in Schedule 3.6. The use of the Assets are not subject to any
Encumbrances (other than those specified in the preceding sentence), and such
use does not, to the Seller's Knowledge, encroach on the property or rights of
anyone else. Except as set forth on Schedule 3.11, all tangible personal
property (other than Inventory) included in the Assets are suitable for the
purposes for which they are used, in good working condition, reasonable wear and
tear excepted, and are free from any known defects.
3.7. Real Property Schedule 3.7 describes all real estate used in the
operation of the Business as well as any other real estate that is owned, in the
possession of or leased by the Company and the improvements (including and other
structures) located on such real estate (collectively, the "Real Property"), and
lists any lease buildings under which any such Real Property is possessed (the
"Real Estate Leases"). Schedule 3.7 also describes any other real estate
previously owned, leased, occupied or otherwise operated by the Company and the
time periods of any such ownership, lease, occupation or operation. All of the
Real Property (a) is usable in the ordinary course of business and (b) to
Seller's Knowledge, conforms with any applicable Laws relating to its
construction, use and operation and with applicable zoning Laws. The Company,
the Affiliates or the landlord of any Real Property leased by the Company or the
Affiliates have obtained all licenses and rights-of-way from governmental
entities or private parties that are necessary to ensure vehicular and
pedestrian ingress and egress to and from the Real Property.
3.8. Certain Personal Property. Schedule 3.8 describes all items of
tangible personal property that were included in the Balance Sheet at a net book
value of at least $10,000. Except as specified in Schedule 3.8, since the
Balance Sheet Date, the Company has not acquired any items of tangible personal
property that have a carrying value in excess of $10,000. All of such personal
property included in Schedule 3.8 is, and any such personal property acquired
after the date hereof in accordance with Section 5.1 will be, usable in the
ordinary course of business, and all such personal property included in Schedule
3.8 conforms, and all of such personal property acquired after the date hereof
will conform, with any applicable Laws relating to its construction, use and
operation. Except for those items subject to the Non-Real Estate Leases and
certain computer hardware and software owned by the Company's employees or
consultants with an aggregate value of less than $5,000, no Person other than
the Company or the Affiliates owns any vehicles, material equipment or other
material tangible assets located on the Real Property that have been used in the
Business or that are necessary for the operation of the Business.
3.9. Non-Real Estate Leases Schedule 3.9 lists all assets and property
(other than Real Property) that are possessed by the Company or the Affiliates
under an existing lease, including all trucks, automobiles, forklifts,
machinery, equipment, furniture and computers, except for any lease under which
the aggregate annual payments are less than $10,000 (each, an "Immaterial
Lease"). Schedule 3.9 also lists the leases under which such assets and property
listed in Schedule 3.8 are possessed. All of such leases (excluding Immaterial
Leases) are referred to herein as the "Non-Real Estate Leases."
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3.10. Accounts Receivable All accounts receivable of the Company (a)
are valid and genuine, (b) arise out of bona fide sales and deliveries of goods,
performance of services or other business transactions, (c) are not subject to
valid defenses, set-offs or counterclaims other than normal returns and
allowances and (d) were generated only in the ordinary course of business.
3.11. Inventory and Equipment. All inventory and equipment of the
Company and the Affiliates reflected on the Balance Sheet, and all inventory and
equipment owned by the Company or the Affiliates was acquired and has been
maintained in accordance with their regular business practices, consists of
items of a quality and quantity useable in the ordinary course of their business
consistent with past practice, and is valued in conformity with generally
accepted accounting principles applied on a consistent basis; except as set
forth on Schedule 3.11, no significant amount of such inventory or equipment is
obsolete.
3.12. Liabilities The Company or the Affiliates do not have any
material Liabilities, other than (a) Liabilities specified in Schedule 3.12, (b)
Liabilities specified in the Balance Sheet (except as heretofore paid or
discharged), (c) Liabilities incurred in the ordinary course since the Balance
Sheet Date that, individually or in the aggregate, are not material to the
Business, or (d) Liabilities under any Contracts that were not required under
GAAP to have been specifically disclosed or reserved for on the Balance Sheet.
3.13. Taxes
(a) The Company has timely filed all Tax Returns required to be filed
on for the Company and the Affiliates or before the Closing Date and all such
Tax Returns are true, correct and complete in all respects. The Company has paid
in full on a timely basis all Taxes owed by it, whether or not shown on any Tax
Return, except where the failure to file such return or pay such taxes would not
have a Material Adverse Effect. No claim has ever been made by any authority in
any jurisdiction where the Company does not file Tax Returns that the Company
may be subject to taxation in that jurisdiction.
(b) There are no unpaid and uncollected payroll taxes as a result of
Seller's Business except for those set forth on the Disclosure Schedule.
(c) The amount of the Company's liability for unpaid Taxes as of the
Balance Sheet Date did not exceed the amount of the current liability accruals
for Taxes (excluding reserves for deferred Taxes) shown on the Balance Sheet.
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(d) There are no ongoing examinations or claims against the Company for
Taxes, and no notice of any audit, examination or claim for Taxes, whether
pending or threatened, has been received. The Company has not waived or extended
the statute of limitations with respect to the collection or assessment of any
Tax.
(e) The Company has a taxable year ended on December 31, in each year
commencing from the incorporation of the Company. The Company currently utilizes
the cash method of accounting for income Tax purposes and such method of
accounting has not changed in the past 10 years.
(f) The Company has withheld and paid over to the proper governmental
authorities all Taxes required to have been withheld and paid over, and complied
with all information reporting and backup withholding requirements, including
maintenance of required records with respect thereto, in connection with amounts
paid to any employee, independent contractor, creditor or third party.
(g) Copies of (i) any Tax examinations, (ii) extensions of statutory
limitations for the collection or assessment of Taxes and (iii) the Tax Returns
of the Company and each Subsidiary for the last two fiscal years have been made
available to Buyer
(h) There are (and as of immediately following the Closing there will
be) no Liens on the assets of the Company relating to or attributable to Taxes,
except for liens for Taxes not yet due. To the Shareholders' Knowledge, there is
no basis for the assertion of any claim relating to or attributable to Taxes
which, if adversely determined, would result in any Lien on the assets of the
Company or otherwise have an adverse effect on the Company or its business.
(i) There are no contracts, agreements, plans or arrangements,
including but not limited to the provisions of this Agreement, covering any
employee or former employee of the Company that, individually or collectively,
would reasonably be expected to give rise to any payment (or portion thereof)
that would not be deductible pursuant to Sections 280G, 404 or 162 of the Code.
The Company has not filed a consent under Section 341(f) of the Code. The
Company is not and has not been a United States real property holding company
within the meaning of Section 897(c) during the period specified in Section
897(c)(1)(A)(ii).
(j) The Company has not been at any time, a party to a tax sharing, tax
indemnity or tax allocation agreement, and the Company has not assumed the tax
liability of any other person under contract.
3.14. Subsidiaries Following is a list of the Company's wholly-owned
subsidiaries (as defined herein as "Affiliates") of which the Company is the
owner of all issued and outstanding shares of capital stock in any form, class
and designation:
ABP, Inc.
ABP III, Inc.
ABP IV, Inc.
Meridian Investment & Management, Inc.
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3.15. Legal Proceedings and Compliance with Law.
(a) There is no Litigation that is pending or, to Seller's
Knowledge, threatened against the Company or the Affiliates. To the Seller's
Knowledge, there has been no Default under any Laws applicable to the Company or
the Affiliates, including Laws relating to pollution or protection of the
environment, and the Company and the Affiliates have not received any notices
from any governmental entity regarding any alleged Defaults under any Laws.
There has been no Default with respect to any Court Order applicable to the
Company or the Affiliates.
3.16 Contracts
(a) Schedule 3.16 lists all Contracts of the following types
to which the Company or the Affiliates are a party or by which they are bound,
except for Minor Contracts:
(i) Contracts with any present or former shareholder,
director, officer, employee, partner or consultant of the Company
or any Affiliate thereof.
(ii) Contracts for the future purchase of, or payment for,
supplies or products, or for the lease of any real or personal
property from or the performance of services by a third party;
(iii) Contracts to sell or supply products or to perform
services that involve an amount in excess of $5,000 in any
individual case;
(iv) Contracts to lease to or to operate for any other party
any real or personal property that involve an amount in excess of
$5,000 in any individual case;
(v) Any notes, debentures, bonds, conditional sale
agreements, equipment trust agreements, letter of credit
agreements, reimbursement agreements, loan agreements or other
Contracts for the borrowing or lending of money (including loans
to or from officers, directors, partners, shareholders or
Affiliates of the Company or any members of their immediate
families), agreements or arrangements for a line of credit or for
a guarantee of, or other undertaking in connection with, the
indebtedness of any other Person;
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(vi) Any Contracts under which any Encumbrances exist; and
(vii) Any other Contracts (other than Minor Contracts and
those described in any of (i) through (vi) above) not made in the
ordinary course of business.
(b) The Contracts listed in Schedule 3.16 and the Minor Contracts
excluded from Schedule 3.16 based on the term or amount thereof are referred to
herein as the "Company Contracts." The Company or the Affiliates are not in
material Default under any Company Contract (including any Real Estate Leases
and Non-Real Estate Leases). The Company and the Affiliates have not received
any communication from, or given any communication to, any other party
indicating that the Company, the Affiliates, or such other party, as the case
may be, is in Default under any Company Contract. To the Knowledge of the
Seller, (i) none of the other parties in any such Company Contract is in Default
thereunder, and (ii) each such Company Contract is enforceable against any other
parties thereto in accordance with terms thereof.
3.17 Insurance Schedule 3.17 lists all policies or binders of insurance
held by or on behalf of the Company and the Affiliates, specifying with respect
to each policy the insurer, the amount of the coverage, the type of insurance,
the risks insured, the expiration date, the policy number and any pending claims
thereunder. To the Seller's Knowledge, there is no Default with respect to any
such policy or binder, nor has there been any failure to give any notice or
present any claim under any such policy or binder in a timely fashion or in the
manner or detail required by the policy or binder. There is no notice of
nonrenewal or cancellation with respect to, or disallowance of any claim under,
any such policy or binder that has been received by the Company.
3.18 Intellectual Property
(a) Intellectual Property. The Company has good and valid title to and
ownership of all Intellectual Property necessary for its Business and operations
(as now conducted and as proposed to be conducted). A list of all Intellectual
Property owned by the Company or the Affiliates is set forth on Schedule
3.18(A). There are no outstanding options, licenses or agreements of any kind to
which the Company or the Affiliates are a party or by which they are bound
relating to any Intellectual Property, whether owned by the Company, the
Affiliates, or another person, except as disclosed on Schedule 3.18(A). To the
Knowledge of the Sellers, the business of the Company as formerly and presently
conducted did not and does not conflict with or infringe upon any Intellectual
Property right, owned or claimed by another.
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(b) Contracts. Schedule 3.18(B) contains a complete and accurate list
and summary description, including any royalties paid or received by the Company
or the Affiliates, of all Contracts relating to the Intellectual Property to
which the Company is a party or by which the Company is bound, except for any
license implied by the sale of a product and perpetual, paid-up licenses for
commonly available software programs with a value of less than $5,000 under
which the Company is the licensee. There are no outstanding and, to Sellers'
Knowledge, no threatened disputes or disagreements with respect to any such
agreement.
(c) Know-How Necessary for the Business The Intellectual Property
included in the Assets constitutes all of the Intellectual Property that is, to
the Sellers Knowledge, necessary for the operation of the Business as it is
currently conducted. Except as described on Schedule 3.18(C), the Company and
the Affiliates are the owner of all right, title and interest in and to each
item of Intellectual Property, free and clear of any Encumbrances, and to the
Seller's Knowledge have the right to use without payment to a third party all of
the Intellectual Property.
3.19 Employees The Company and the Affiliates are not (a) a party to,
involved in or, to Sellers' Knowledge, threatened by, any labor dispute or
unfair labor practice charge, or (b) currently negotiating any collective
bargaining agreement. The Company has not experienced during the last three
years any work stoppage. Sellers have delivered to Buyer a complete and correct
list of the names and salaries, bonus and other cash compensation of all
employees (including officers) of the Company. Schedule 3.19 lists the directors
and officers of the Company.
3.20 ERISA
(a) Schedule 3.20 contains a complete list of all benefit plans
sponsored or maintained by the Company or the Affiliates or under which the
Company or the Affiliates are obligated. Seller has delivered to Buyer (i)
accurate and complete copies of all such benefit plan documents and all other
material documents relating thereto, including (if applicable) all summary plan
descriptions, summary annual reports and insurance contracts, (ii) accurate and
complete detailed summaries of all unwritten benefit plans, (iii) accurate and
complete copies of the most recent financial statements and actuarial reports
with respect to all such benefit plans for which financial statements or
actuarial reports are required or have been prepared and (iv) accurate and
complete copies of all annual reports for all such benefit plans (for which
annual reports are required) prepared within the last three years. Each such
benefit plan providing benefits that are funded through a policy of insurance is
indicated by the word "insured" placed by the listing of the benefit plan in the
Schedule 3.20.
(b) To the Seller's Knowledge, all such benefit plans conform (and at
all times have conformed) in all material respects to, and are being
administered and operated (and have at all time been administered and operated)
in material compliance with, the requirements of ERISA, the Code and all other
applicable Laws. All returns, reports and disclosure statements required to be
made under ERISA and the Code with respect to all such benefit plans have been
timely filed or delivered. To the Seller's Knowledge, there have not been any
"prohibited transactions," as such term is defined in Section 4975 of the Code
or Section 406 of ERISA involving any of the benefit plans, that could subject
any Seller or the Company to any material penalty or tax imposed under the Code
or ERISA.
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(c) Except as is set forth in Schedule 3.20, any such benefit plan that
is intended to be qualified under Section 401(a) of the Code and exempt from tax
under Section 501(a) of the Code has been determined by the Internal Revenue
Service to be so qualified or an application for such determination is pending.
Any such determination that has been obtained remains in effect and has not been
revoked, and with respect to any application that is pending, the Company does
not have any reason to suspect that such application for determination will be
denied. Nothing has occurred since the date of any such determination that is
reasonably likely to affect adversely such qualification or exemption, or result
in the imposition of excise taxes or income taxes on unrelated business income
under the Code or ERISA with respect to any such benefit plan.
(d) The Company or the Affiliates do not sponsor a defined benefit plan
subject to Title IV of ERISA, nor does it have a current or contingent
obligation to contribute to any multi employer plan (as defined in Section 3(37)
of ERISA). The Company does not have any liability with respect to any employee
benefit plan (as defined in Section 3(3) of ERISA) other than with respect to
such benefit plans.
(e) There are no pending or, to Seller's Knowledge, any threatened
claims by or on behalf of any such benefit plans, or by or on behalf of any
individual participants or beneficiaries of any such benefit plans, alleging any
breach of fiduciary duty on the part of the Company, the Affiliates, or any of
its officers, directors or employees under ERISA or any other applicable
regulations, or claiming benefit payments (other than those made in the ordinary
operation of such plans), nor is there, to Seller's Knowledge, any basis for
such claim. The benefit plans are not the subject of any pending (or to Seller's
Knowledge, any threatened) investigation or audit by the Internal Revenue
Service or the Department of Labor.
(f) The Company and the Affiliates have timely made all required
contributions under such benefit plans.
(g) With respect to any such benefit plan that is an employee welfare
benefit plan (within the meaning of Section 3(1) of ERISA) (a "Welfare Plan")
and except as specified in Schedule 3.20, (i) each Welfare Plan for which
contributions are claimed by the Company as deductions under any provision of
the Code complies with all applicable requirements pertaining to such deduction,
(ii) with respect to any welfare benefit fund (within the meaning of Section 419
of the Code) related to a Welfare Plan, there is no disqualified benefit (within
the meaning of Section 4976(b) of the Code) that would result in the imposition
of a tax under Section 4976(a) of the Code, (iii) any benefit plan that is a
group health plan (within the meaning of Section 4980B(g)(2) of the Code)
complies, and in each and every case has complied, with all of the applicable
requirements of Section 4980B of the Code, ERISA, Title XXII of the Public
Health Service Act and the Social Security Act, and (iv) all Welfare Plans may
be amended or terminated at any time on or after the Closing Date. Except as
specified in Schedule 3.20, no benefit plan provides any health, life or other
welfare coverage to employees of the Company beyond termination of their
employment with the Company by reason of retirement or otherwise, other than
coverage as may be required under Section 4980B of the Code or Part 6 of ERISA,
or under the continuation of coverage provisions of the laws of any state or
locality.
14
3.21 Corporate Records. The minute books of the Company and the
Affiliates contain complete, correct and current copies of their charter
documents and bylaws and of all minutes of meetings, resolutions and other
proceedings of its Board of Directors and shareholders. The stock record books
of the Company and the Affiliates are complete, correct and current.
3.22. Absence of Certain Changes Except as contemplated by this
Agreement, the Company and the Affiliates have conducted the business in the
ordinary course since inception, and there has not been with respect to the
business any of the items specified below since the Balance Sheet Date:
(a) any change that has had or is reasonably likely to have a Material
Adverse Effect;
(b) any distribution or payment declared or made in respect of its
common stock by way of dividends, purchase or redemption of shares or otherwise;
(c) any increase in the compensation payable or to become payable to
any director, officer, employee or agent, except for increases for non-officer
employees made in the ordinary course of business, nor any other change in any
employment or consulting arrangement except in the ordinary course of business;
(d) any sale, assignment or transfer of Assets, or any additions to or
transactions involving any Assets, other than those made in the ordinary course
of business;
(e) other than in the ordinary course of business, any waiver or
release of any claim or right or cancellation of any debt held;
(f) materially decrease its working capital;
(g) other than in the ordinary course of business, any incurrence of
indebtedness for borrowed money or issuance of any debt securities; or
(h) any payments to any Affiliate of the Company,
15
3.23. Customers The Company has used reasonable business efforts to
maintain, and currently maintains, good working relationships with all of its
customers. Schedule 3.23 contains a list of the names of each of the 10
customers that, in the aggregate, for the period from January 1, 2001 through
September 30, 2001 were the largest dollar volume customers of products or
services, or both, sold by the Company. None of such customers has given the
Company or the Affiliates written notice terminating, canceling or threatening
to terminate or cancel any Contract or relationship with the Company or the
Affiliates.
3.24 Previous Sales; Warranties. The Company or the Affiliates have not
breached any express or implied warranties in connection with the sale or
distribution of goods or the performance of services, except for breaches that,
individually and in the aggregate, are not material and are consistent with the
past practices of the Business.
3.25 Finder's Fees No Person retained by the Company, the Affiliates or
any Seller is or will be entitled to any commission or finder's or similar fee
in connection with the Transactions.
3.26 Accuracy of Information. To the Seller's Knowledge, no
representation or warranty by the Company, the Affiliates or any Seller in any
Transaction Document, and no information contained therein contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances under which such statements were made.
3.27 Intentionally Omitted
3.28 Additional Information Schedule 3.28 accurately lists the
following:
(a) the names and addresses of every bank or other financial
institution in which the Company or the Affiliates maintain an account (whether
checking, saving or otherwise), lock box or safe deposit box, and the account
numbers and names of Persons having signing authority or other access thereto;
and
(b) all names under which the Company or the Affiliates have conducted
the Business or which it has otherwise used at any time during the past five
years.
3.29 Absence of Certain Changes. Except as set forth in the Disclosure
Schedule or as contemplated by this Agreement, since the date of the Balance
Sheet, the business of the Seller has been conducted in the ordinary course
consistent with past practice and there has not been:
16
any event, occurrence, development or state of circumstances or facts
that has had or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;
any change in any method of accounting, method of tax accounting, or
accounting practice by the Seller or any of its Affiliates, except for any such
change required by reason of a concurrent change in GAAP; or
(i) any granting by the Seller to any employee of the Seller of any
increase in compensation, except for normal increases in the ordinary course of
business and consistent with past practice, or (ii) any grant, issuance,
acceleration, payment, accrual or agreement to pay or make any agreement for
accrual or arrangement for payment of salary or other payments, compensation or
benefits pursuant to, or adopt or amend, any new or existing employee benefit
plan, agreement or arrangement, except in the ordinary course of business
consistent with past practice.
3.30 Guaranties. Seller is not a guarantor of any third party
obligation and otherwise is not liable for any liability or obligation
(including indebtedness) of any other Person.
3.31 Litigation. Except as set forth in the Disclosure Schedule, there
are no legal, administrative, arbitration or other proceedings or claims,
actions, disputes or investigations pending or, to Seller's best knowledge,
threatened against Seller, or affecting the Assets, and Seller knows of no basis
for any such action, proceeding, claim or investigation. Neither Seller nor any
of the Assets is subject to any judgment, order or decree entered in any law
suit or legal, administrative, or other proceeding.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants, as of the date hereof and as of the
Closing Date, to the Seller that:
Due Incorporation. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida, with all
requisite power and authority to own and operate its assets and properties as
they are now being owned and operated, except where the failure to have such
power and authority would not have a material adverse effect on the Purchaser.
The incorporation documents, by-laws, minutes and resolutions of the Purchaser
made available for review to the Seller are true and current copies thereof.
Due Authorization.
Purchaser has full power and authority to enter into this Agreement and
its Related Agreements and to consummate the transactions contemplated hereby
and thereby. The execution, delivery and performance by Purchaser of this
Agreement and its Related Agreements have been duly and validly approved by the
board of directors of Purchaser and no other corporate actions or proceedings on
the part of Purchaser are necessary to authorize this Agreement, its Related
Agreements and the transactions contemplated hereby and thereby.
17
Purchaser has duly and validly executed and delivered this Agreement
and has duly and validly executed and delivered (or prior to or at the Closing
will duly and validly execute and deliver) its Related Agreements. This
Agreement constitutes the legal, valid and binding obligation of Purchaser and
Purchaser's Related Agreements, upon execution and delivery by Purchaser, will
constitute legal, valid and binding obligations of Purchaser, enforceable in
accordance with their respective terms.
Broker. Purchaser has used no broker, investment banker intermediary or
finder in connection with the transactions contemplated hereby, and neither the
Seller nor any Affiliate of the Seller has or shall have any liability or
otherwise suffer or incur any Loss as a result of or in connection with any
brokerage or finder's fee or other commission of any Person retained by
Purchaser in connection with any of the transactions contemplated by this
Agreement.
Financing. Purchaser has or shall have all funds necessary to perform
its obligations under this Agreement and financing is not a condition to the
Closing.
Litigation. Except as set forth on Exhibit M, there is no
investigation, inquiry or review by any governmental entity or authority with
respect to Purchaser, whether pending or, to Purchaser's knowledge, threatened,
nor has any governmental entity indicated to Purchaser an intention to conduct
the same. There is no action of any kind, pending or, to Purchaser's knowledge,
threatened, at law or in equity, before any court, arbitrator, governmental
entity or authority, that involves, affects or relates to Purchaser or any of
its properties or assets that either singly or in the aggregate may have any
material adverse effect on the operations, financial condition or results of
operations of Purchaser and its subsidiaries considered as a whole.
COVENANTS
Efforts; Notices and Consents. Each of the Seller and Purchaser will,
as promptly as practicable following the date hereof (i) make the required
filings with, and use its best efforts to obtain the required authorizations,
approvals, consents and other actions of, Authorities and (ii) use its best
efforts to obtain the required consents of other Persons with respect to the
transactions contemplated hereby.
Management Agreement. Simultaneously with the execution hereof, Seller
shall enter into a Management Agreement with the Purchaser in the form attached
hereto as Exhibit C, effective on the date specified therein, whereby the
Purchaser will, until the Closing Date, manage the operations of the Seller
which relate to the Customers and the Customer Base.
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Post-Closing Access and Cooperation. The Purchaser and the Seller will,
after the Closing Date, afford promptly to each other and their respective
representatives reasonable access during normal business hours to the offices,
facilities, books, records, officers and employees of each other to the extent
and for a purpose reasonably requested by the other. Without limiting the
generality of the foregoing, the Purchaser and the Seller will cooperate with
each other in the defense of any litigation, including, but not limited to,
making employees available for purposes of trial preparation and testimony but
only to the extent it would not materially interfere with the duties of such
employees.
Non-Solicitation Agreement.
In consideration of this Agreement and the consideration the Seller is
receiving hereunder, the Seller covenants and agrees that from the Closing Date
through the fourth anniversary of the Closing Date (the "Restricted Period"), it
will not, and will not cause any other Person to, and will not permit any of its
Affiliates, subsidiaries or employees to, without the prior express written
approval of the Purchaser, anywhere in the states included in the Customer Base,
directly or indirectly, in one or a series of transactions, solicit customers of
Purchaser who are such immediately after the Closing.
During the Restricted Period, the Seller will not cause any other
Person to, without the express prior written approval of the Purchaser in one or
a series of transactions, recruit, solicit or otherwise induce or influence any
proprietor, partner, stockholder, lender, director, officer, employee, sales
agent, joint venturer, investor, lessor, customer, agent, representative or any
other person which has a business relationship with the Seller, to discontinue
such person or entity's employment, agency or business relationship with the
Purchaser in respect of the businesses conducted by the Purchaser immediately
subsequent to the Closing.
Standstill Agreement. From the execution of this Agreement the Seller
will not: (i) make or encourage any offer or enter into any understanding or
agreement for the purchase, merger or other acquisition of any capital stock of
Seller; (ii) entertain or pursue any unsolicited offer for any such transaction;
(iii) furnish to any person or entity any nonpublic information concerning
Seller or its business, financial affairs or prospects for the purpose or with
the intent of permitting such person or entity to evaluate a business
combination transaction; (iv) cause the original issue of any shares of common
stock; or (v) declare or pay any dividends.
Payroll Taxes. PEO shall pay all federal, state and local employment
taxes for itself and the Business.
19
Transfer Taxes. All transfer, documentary, sales, use, stamp and other
similar Taxes (including but not limited to any penalties and interest) incurred
in connection with this Agreement or the transfer of Assets to Purchaser shall
be the sole responsibility of the Seller and remitted by the Seller to the
appropriate Authorities when due.
CONDITIONS PRECEDENT TO OBLIGATIONS
OF PURCHASER
The obligations of the Purchaser at Closing under Article II of this
Agreement are subject to the satisfaction or waiver by the Purchaser of the
following conditions precedent on or before the Closing Date:
Representations and Warranties True as of Closing Date. The
representations and warranties of the Seller contained in Article III shall be
true in all material respects as of the Closing Date (except for those
representations and warranties that are qualified by materiality, which
representations shall be true and correct as of the Closing Date) as if made at
and as of such time (except for any representation or warranty that is as of a
specific date, which representation or warranty shall be true and correct in all
material respects as of such specified date).
Compliance with Agreements and Covenants. The Seller shall have
performed and complied in all material respects with all of the covenants,
obligations and agreements contained in this Agreement to be performed and
complied with by it on or prior to the Closing Date.
Officer's Certificate. Purchaser shall have received a certificate
dated the Closing Date and executed on behalf of the Seller by an Executive
Officer of Seller to the effect that the conditions of Sections 6.1 and 6.2 have
been satisfied and containing a copy of the resolutions of the Board of
Directors of Seller approving this Agreement and the transactions contemplated
hereby.
Letters of Credit. LOC1, LOC2 and LOC3 shall be in full force and
effect until the Closing Date and the Seller must not have defaulted and be in
full and complete compliance with LOC1, LOC2 and LOC3, if applicable,.
Related Agreements. The Related Agreements shall have been in full
force and effect until the Closing Date.
Laws. No Authority of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any Law (whether temporary, preliminary
or permanent) which prohibits consummation of the transactions contemplated by
this Agreement or that is individually or in the aggregate with all other such
Laws reasonably likely to have a Material Adverse Effect and no Authority shall
have instituted any proceeding or threatened in writing to institute any
proceeding seeking any such Law.
20
No Material Adverse Effect. There shall not have occurred any
developments, circumstances or other events that would reasonably be expected to
have a Material Adverse Effect since the date hereof.
Due Diligence. Purchaser and its counsel shall have received, reviewed
and approved a written report of a search showing that the Assets are free and
clear of all Liens of any kind or nature whatsoever and shall have a due
diligence investigation of the Seller and the Shares to its satisfaction.
Authority Approvals. All filings with, and approvals by, any federal,
state or local Authorities required to be made or received prior to the
consummation of the transactions contemplated by this Agreement shall have been
made or received.
Books and Records. The Purchaser shall have received from the Seller at
the Closing, all of the books and records related to the Assets and identified
on the Disclosure Schedule.
Opinion of Seller's Counsel. The Purchaser shall have received an
opinion of counsel to the Seller, dated the Closing Date, substantially in the
form attached hereto as Exhibit H
CONDITIONS PRECEDENT TO
OBLIGATIONS OF SELLER
The obligations of the Seller at Closing under Article II of this
Agreement are subject to the satisfaction or waiver by the Seller of the
following conditions precedent on or before the Closing Date:
Representations and Warranties True as of Closing Date. The
representations and warranties of the Purchaser contained in Article IV shall be
true in all material respects as of the Closing Date (except for those
representations and warranties that are qualified by materiality, which
representations shall be true and correct as of the Closing Date) as if made at
and as of such time (except for any representation or warranty that is as of a
specific date, which representation or warranty shall be true and correct in all
material respects as of such specified date).
Compliance with Agreements and Covenants. The Purchaser shall have
performed and complied in all material respects with all of its covenants,
obligations and agreements contained in this Agreement to be performed and
complied with by it on or prior to the Closing Date, except as otherwise
permitted or contemplated by this Agreement.
21
Officer's Certificate. Seller shall have received a certificate dated
the Closing Date and executed on behalf of Purchaser by an Executive Officer of
Purchaser to the effect that the conditions of Sections 7.1 and 7.2 have been
satisfied and containing a copy of the resolutions of the Boards of Directors of
Purchaser approving this Agreement and the transactions contemplated hereby.
Laws. No Authority of competent jurisdiction shall have enacted,
issued, promulgated, enforced or entered any Law (whether temporary, preliminary
or permanent) which prohibits consummation of the transactions contemplated by
this Agreement and no Authority shall have instituted any proceeding or
threatened in writing to institute any proceeding seeking any such Law.
Authority Approvals. All filings with, and approvals by, any federal,
state or local Authorities required to be made or received prior to the
consummation of the transactions contemplated by this Agreement shall have been
made or received.
Opinion of Counsel to Purchaser. The Seller shall have received an
opinion of counsel to the Purchaser, dated the Closing Date, substantially in
the form attached hereto as Exhibit I.
SURVIVAL AND REMEDY; INDEMNIFICATION
Survival. All of the terms and conditions of this Agreement, together
with the warranties, representations, agreements and covenants contained herein
or in any instrument or document delivered or to be delivered pursuant to this
Agreement, shall survive the execution of this Agreement and the Closing Date,
notwithstanding any investigation heretofore or hereafter made by or on behalf
of any party hereto; provided, however, that (a) the agreements and covenants
(other than the indemnification provisions set forth in this Article IX, which
will survive as provided below) set forth in this Agreement shall survive and
continue until all obligations set forth therein shall have been performed and
satisfied and the applicable statute of limitations for breaches or defaults of
such agreements and covenants has expired and (b) all representations and
warranties, and the related agreements of the Seller, Purchaser to indemnify
each other set forth in this Article IX, shall survive and continue for, and all
indemnification claims with respect thereto shall be made prior to, the third
anniversary of the Closing Date, except for representations, warranties and
related indemnities for which an indemnification claim shall be pending as of
the end of the applicable period referred to above, in which event such
indemnities shall survive with respect to such indemnification claim until the
final disposition thereof (the "Indemnification Period"). Thereafter, no party
shall be under any obligation or liability whatsoever with respect to any such
representation, warranty, covenant or agreement or any certificate in respect
thereto.
22
Indemnification by the Seller. Subject to Section 8.7, the Seller
agrees to indemnify Purchaser and each of its Affiliates and their respective
officers, directors, employees, shareholders, representatives and agents,
against, and agrees to hold it and them harmless from, any and all Losses
incurred or suffered by Purchaser or any of the foregoing persons (or any
combination thereof) arising out of any of the following: (a) any breach of or
any inaccuracy in any representation or warranty made by the Seller in Article
III of this Agreement; (b) any breach of or failure by Seller to perform any
agreement, covenant or obligation of Seller set out in this Agreement or any
Related Agreement; (c) any liabilities of Seller, including, without limitation,
any pre-closing liabilities related to the Assets that are not specifically
assumed by Purchaser pursuant to this Agreement and (d) all demands,
assessments, judgments, costs and reasonable legal and other expenses arising
from, or in connection with, any investigation, action, suit, proceeding or
other claim incident to any of the foregoing.
Indemnification by Purchaser. Purchaser agrees to indemnify the Seller
and each of its officers, directors, employees, shareholders, representatives
and agents, against, and agrees to hold them harmless from, any and all Losses
incurred or suffered by the Seller or any of the foregoing persons (or any
combination thereof) arising out of (a) any breach of or any inaccuracy in any
representation or warranty made by Purchaser pursuant to Article IV of this
Agreement; (b) any breach of or failure by Purchaser to perform any agreement,
covenant or obligation of Purchaser set out in this Agreement or any Related
Agreement; and (c) all demands, assessments, judgments, costs and reasonable
legal and other expenses arising from, or in connection with, any investigation,
action, suit, proceeding or other claim incident to any of the foregoing.
Right of Offset. In addition to all rights and remedies of Purchaser,
Purchaser shall have the right to offset against any and all monies due to
Seller hereunder, for all monetary claims Purchaser may have against Seller
under this Agreement.
MISCELLANEOUS
Expenses. Except as expressly provided in this Agreement, each party
hereto shall bear its own expenses (including legal fees and expenses) with
respect to this Agreement.
Amendment. This Agreement may be amended, modified or supplemented but
only in writing signed by the Purchaser and the Seller.
Notices. Any notice, request, instruction or other document to be given
hereunder by a party hereto shall be in writing and shall be deemed to have been
given, (a) when received if given in person or by courier or a courier service,
(b) on the date of transmission if sent by facsimile (with confirmation of
receipt) or (c) five Business Days after being deposited in the U.S. mail,
certified or registered mail, postage prepaid:
23
If to the Purchaser addressed as follows:
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile No.: (954) ___-____
with a copy to:
Levy Boonshoft & ▇▇▇▇▇▇▇▇, PC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(a) If to the Seller, addressed to it as follows:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile No.: (___) ___-____
with a copy to:
or to such other individual or address as a party hereto may designate
for itself by notice given as herein provided.
Binding; No Assignment. This Agreement and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties,
except by operation of law.
Severability; Suspension Provisions. If in any jurisdiction, any
provision of this Agreement or its application to any party or circumstance is
restricted, prohibited or unenforceable, such provision shall, as to such
jurisdiction, be ineffective only to the extent of such restriction, prohibition
or unenforceability without invalidating the remaining provisions hereof and
without affecting the validity or enforceability of such provision in any other
jurisdiction or its application to other parties or circumstances. In addition,
if any one or more of the provisions contained in this Agreement shall for any
reason in any jurisdiction be held to be excessively broad as to time, duration,
geographical scope, activity or subject, it shall be construed, by limiting and
reducing it, so as to be enforceable to the extent compatible with the
applicable law of such jurisdiction as it shall then appear.
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1.2 Governing Law; Arbitration.
(a) This Agreement and the legal relations among the parties hereto
shall be governed by and construed in accordance with the laws of the State of
Florida without regard to the conflicts of laws principles thereof or the actual
domiciles of the parties. Any arbitration or mediation initiated by the parties
as provided herein shall be filed and maintained exclusively with the AAA's
offices located in the State of Florida and the parties further agree that the
provisions of this section may be enforced by any court of competent
jurisdiction, and the party seeking enforcement shall be entitled to an award of
all costs, fees and expenses, including attorneys' fees, to be paid by the party
against whom enforcement is ordered.
(b) Purchaser and Seller hereby consent to the jurisdiction of the AAA
and the courts of the State of Florida, County of Broward, and the United States
District Courts, located therein, as well as to the jurisdiction of all courts
from which an appeal may be taken from such courts, for the purpose of any
arbitration, suit, action or other proceeding arising out of any of their
obligations arising hereunder or with respect to the transactions contemplated
hereby and expressly waive any and all objections they may have as to venue in
any of such courts.
(c) Each party hereto irrevocably and unconditionally consents to the
service of any and all process in any such action or proceeding by the mailing
of copies of such process by certified mail to such party and its counsel at
their respective addresses specified in Section 10.3.
Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
1.3 Headings. The title of this Agreement and the headings of the
Sections and Articles of and the Schedules to this Agreement are for reference
purposes only and shall not be used in construing or interpreting this
Agreement.
1.4 Entire Agreement; Amendment; Waiver. This Agreement, including any
exhibits and schedules hereto and other documents, instruments and certificates
delivered pursuant to the terms hereof, sets forth the entire agreement and
understanding of the parties hereto in respect of the subject matter hereof, and
supersedes all prior agreements, promises, covenants, arrangements,
representations or warranties, whether oral or written, by any party hereto or
any officer, director, employee or representative of any party hereto. No
modification or waiver of any provision of this Agreement shall be valid unless
it is in writing and signed by the party to be charged therewith. The waiver of
breach of any term or condition of this Agreement shall not be deemed to
constitute a waiver of any other breach of the same or any other term or
condition.
25
1.5 Third Parties. Except as specifically set forth or referred to
herein, nothing herein expressed or implied is intended or shall be construed to
confer upon or give to any Person other than the parties hereto and their
successors or assigns any rights or remedies under or by reason of this
Agreement.
1.6 Publicity. From the date hereof through the Closing Date, except as
required by law, neither Purchaser nor Seller shall make any announcement of the
transactions contemplated hereby without the prior written consent of the other
parties. From and after the Closing Date, except as otherwise required by law,
neither Purchaser nor Seller shall make any announcement, issue any press
release or disseminate information to the press or any third party regarding
this Agreement or the transactions contemplated by this Agreement without the
prior written consent of the other parties. The parties will cooperate with each
other for an internal announcement designed to provide information to Employees
of Seller as to transition issues and to promote a smooth transition for the
Transferred Employees.
Reference to Days. All references to days in this Agreement shall be
deemed to refer to calendar days, unless otherwise specified.
Specific Performance. Each of the parties hereto acknowledges and
agrees that the Purchaser on the one hand, and the Seller on the other, would be
irreparably damaged in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. Accordingly, each of the parties hereto agrees that notwithstanding
the provisions of Section 9.6 of this Agreement, they each shall be entitled to
an injunction or injunctions to prevent breaches of the provisions and/or the
remedy of specific performance hereof in any action instituted in any state or
federal court located in the State of New York, in addition to any other remedy
to which such party may be entitled, at law or in equity. In connection
therewith, each party hereto hereby (i) consents to the jurisdiction of such
courts, as well as to the jurisdiction of all courts from which an appeal may be
taken from such courts, (ii) expressly waives any and all objections such party
may have as to venue in any of such courts, and (iii) irrevocably and
unconditionally consents to the service of any and all process in any such
action or proceeding by the mailing of copies of such process by certified mail
to such party and its counsel at their respective addresses specified in Section
9.3.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
BACE INTERNATIONAL, INC.
By:_____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, President
THE CURA GROUP III, INC.
By:_____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
26