1
EXHIBIT 10.25
ASSET PURCHASE AGREEMENT
BETWEEN
PAR FIVE SERVICES, INC.
(THE "SELLERS")
AND ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, AND ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(THE "STOCKHOLDERS")
AND
▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇, INC. ("PURCHASER")
1
2
TABLE OF CONTENTS
Page
----
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Sale and Transfer of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3. Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4. Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5. Allocation of Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6. Allocation of Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7. Collection of Accounts Receivable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
8. Closing Deliveries by the Sellers and Stockholders . . . . . . . . . . . . . . . . . . . . . . . 10
9. Closing Deliveries by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
10. Representations and Warranties of the Sellers
and the Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
11. Covenants of the Sellers and the Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . 19
12. Representations and Warranties of Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
13. Covenants of Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
14. Indemnity by the Sellers and the Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . 24
15. Indemnity by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
16. Termination of Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
17. Loss or Destruction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
18. Conditions Precedent to Purchaser's
Obligation to Close . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
19. Conditions Precedent to the Sellers'
Obligation to Close . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
20. Additional Post-Closing Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
21. Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
22. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
23. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
24. Mediation and Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
25. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
26. Bulk Transfer Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
27. Release by Sellers and Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
28. Release by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
29. Survival of Representations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2
3
SCHEDULES
Schedule 1 - Tangible Assets
Schedule 2 - Assumed Contracts
Schedule 3 - List of Receivables to be Delivered at Closing
Schedule 4 - Allocation of Purchase Price
Schedule 5 - Encumbrances
Schedule 6 - Employees
3
4
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into
effective as of this 16th day of October, 1996, by and among Par Five Services,
Inc., an Illinois corporation (the "Sellers"), and ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇▇, AND ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (the "Stockholders"), on one hand, and ▇▇▇▇▇▇▇▇
AND ▇▇▇▇▇▇▇▇, INC. ("Purchaser"), a Pennsylvania corporation, on the other
hand.
RECITALS
WHEREAS Sellers are operating one (1) "▇▇▇▇▇▇▇▇ Personnel Services"
office (the "Office") pursuant to a certain franchise agreement with Purchaser
at the following location:
Office No. Location of Office. Date of Franchise Agreement.
---------- ------------------- ----------------------------
F0305 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇. April 1, ▇▇▇▇
▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
WHEREAS, Stockholders are the owners of one hundred percent (100%) of
the issued and outstanding common stock of Sellers;
WHEREAS, Sellers desire to sell, transfer, convey and assign to
Purchaser, and Purchaser desires to purchase, under the terms and conditions
set forth herein, all of the assets of Sellers associated with the Office,
including the trademarks, service marks, and trade names, if any, and the good
will associated with the Office;
4
5
WHEREAS, Sellers' franchise agreement with Purchaser is referred to in
this Agreement as the "Franchise Agreement."
WHEREAS, Purchaser also desires to obtain assignments of certain
contracts and agreements relating to the operation of Sellers' Office and
agrees to assume certain of Sellers' obligations and liabilities.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises
contained herein, the parties agree as follows:
1. DEFINITIONS. The following words shall have the following
meanings when used in this Agreement:
(a) "Assets" shall mean all of the rights, title and
interest of Sellers in the assets, properties, rights, claims and contracts of
every kind, character and description, whether real or personal, tangible or
intangible, which are used or usable in, or relate to, the operation of the
Office, without regard to whether reflected on the Sellers' financial
statements or books. Specifically excluded from the Assets being sold
hereunder are any accounts receivable of the Sellers related to work performed
or services provided through the close of business of the day immediately prior
to the Closing Date. Assets being acquired by Purchaser are:
(i) the tangible assets set forth and identified
as being acquired by Purchaser in Schedule 1 to this Agreement;
5
6
(ii) all contracts and relationships of Sellers
with clients and with temporary employees (as those terms are defined in the
Franchise Agreement);
(iii) Sellers' rights in and to the telephone
numbers and telephone directory advertising for the Office, and all other
intangible property, trade secrets, rights under Assumed Contracts (as defined
in Section 3), permits, and licenses associated with the Office;
(iv) any Internet names registered by Sellers;
(v) all of Sellers' trade names, trademarks, or
service marks used, or available for use, in Sellers' business;
(vi) the rights of the Sellers under the
assumption of the Lease of real property relating to the Office (the "Lease");
(vii) all inventory and supplies on hand as of the
Closing Date;
(viii) all business papers and records pertaining to
the Office, including but not limited to personnel records (including payroll
records) concerning each employee of the Sellers who will become employed by
the Purchaser after the Closing Date, client records, vendor lists, and
operations manuals; and
(ix) all Placement Receipts, if any, (as that term
is defined in the Franchise Agreement) except for those for which the employee
has both been offered permanent employment by a client and accepted such offer
of employment on or before the Closing Date.
6
7
(b) "Closing" shall mean the events which take place for
the purpose of consummating the transactions contemplated by this Agreement,
commencing at 9:00 a.m. on Monday, November 4, 1996, at
Chicago, Illinois , or at another acceptable time and location to which the
parties agree; and
(c) "Closing Date" shall mean 12:01 a.m. on Monday,
November 4, 1996.
2. SALE AND TRANSFER OF CERTAIN ASSETS. Upon the terms and
subject to the conditions set forth in this Agreement, the Sellers agree to
sell, transfer, assign, grant, convey and deliver the tangible Assets listed on
Schedule 1 and all other Assets listed in Subsection 1(a) to Purchaser on the
Closing Date, free and clear of all mortgages, liens, security interests,
pledges, charges and other encumbrances. Notwithstanding any language that may
be stated in this Agreement, Sellers' accounts receivable as that term is
described herein, are not an Asset being sold, transferred, assigned, granted,
or conveyed to Purchaser.
3. ASSUMPTION OF LIABILITIES. Purchaser has not assumed, and
shall not assume, any liability or obligation of any nature, known or unknown,
existing or contingent, of the Sellers, except that, at Closing: (i) Purchaser
shall assume the Lease unless Purchaser notifies Sellers in writing within ten
(10) days of the Closing that Purchaser will not assume the Lease; and (ii) the
other written contracts and obligations specifically identified in Schedule 2
to this Agreement (the "Assumed Contracts"). Sellers shall assume and make
payments for the obligations for unused vacation and unused sick leave, if
any, accrued through the Closing Date by each employee of the Sellers. The
Sellers acknowledge that Purchaser does not assume any obligation in connection
with any actual or alleged breach or default of Lease or Assumed Contracts
7
8
occurring at any time through the Closing Date. Except for the items specified
in clauses (i) and (ii) above, all obligations, liens, encumbrances, and
liabilities of the Sellers shall continue to be the sole responsibility of the
Sellers and Sellers shall hold Purchaser harmless.
4. PURCHASE PRICE. In reliance upon the representations
and warranties for the assets named herein, Purchaser shall pay the Sellers One
Hundred Fifty Thousand Dollars ($150,000) (the "Purchase Price"). The
Purchase Price shall be paid as follows:
(a) At Closing, Purchaser shall pay the Sellers One
Hundred Fifty Thousand Dollars ($150,000) in cash by certified check.
5. ALLOCATION OF PURCHASE PRICE. In accordance with Section
1060 of the Internal Revenue Code of 1986, as amended, the Purchase Price shall
be allocated in the manner set forth in Schedule 4 to this Agreement. The
Sellers, the Stockholders, and Purchaser each covenant and warrant to each
other that: (i) in no tax return filed by the parties or any of their
respective successors or assigns shall the allocation of the Purchase Price be
treated or reported inconsistently with or differently from the allocation of
the Purchase Price set forth in Schedule 4, unless such change in allocation is
the result of a determination by a governing authority for that year or a
preceding year; and (ii) in no tax audit, tax examination, tax or compliance
review or tax litigation will the parties or any of their respective successors
or assigns claim or assert that the allocation of the Purchase Price is or
should be inconsistent with or different from that set forth in Schedule 4,
unless as a result of a determination made by a governing authority in a
preceding year. The parties agree
8
9
to file all appropriate Internal Revenue Service Forms with their respective
Federal income tax returns for their respective tax year in which the Closing
occurs.
6. ALLOCATION OF EXPENSES. All real estate taxes, personal
property taxes, rents, telephone charges, utilities, and other costs and
expenses of owning or operating the Assets which relate to periods both before
and after the Closing Date (the "Prorated Costs") shall be prorated on a per
diem basis as of the Closing Date, with the Sellers responsible for the portion
of all such items which relates to the period through the Closing Date, and
Purchaser responsible for the portion of all such items which relates to the
period after the Closing Date. Prorated Costs shall be settled between
Purchaser and Sellers either at Closing or as soon as practicable thereafter;
and
(a) Any sales tax, use tax, excise tax, transfer tax,
recording fee or other tax or fee imposed on the transfer of the Assets from
Sellers to Purchaser shall be paid by Sellers.
7. COLLECTION OF ACCOUNTS RECEIVABLE. With respect to the
accounts receivable for the placement of employees, Sellers shall be entitled
to all monies owed Sellers, as evidenced by the accounts receivable list at
time of Closing covering all work completed through Friday, October 25, 1996,
to be followed by a subsequent report covering accounts receivable up to
Closing, which shall be due Purchaser by Thursday, November 7, 1996.
Purchaser shall be entitled to all monies received from the generation of
accounts receivable subsequent to November 3, 1996; and
9
10
(a) As described above, Sellers shall provide at Closing
or immediately thereafter, a list of placement and temporary accounts
receivable due Sellers on the Closing Date. For ninety (90) days subsequent to
the Closing, Purchaser shall be responsible for the collection of such accounts
receivable and shall provide Sellers a weekly report accompanied by all monies
due Sellers in accordance with Sellers' Franchise Agreements with Purchaser
except that Sellers shall be responsible for all collection efforts with
inactive clients' accounts receivable which are over sixty (60) days old.
Inactive client shall be defined as a client who has not utilized the services
of Sellers within six (6) months of the Closing Date. Purchaser shall return
to Sellers at the end of the ninety (90) day period all uncollected accounts
receivable for further collection efforts by Sellers. Purchaser shall incur no
liability to Sellers for the uncollectibility of said accounts receivable.
Thereafter, Sellers shall submit to Purchaser monthly reports of all collection
activity accompanied by all monies due Purchaser in accordance with the
provisions of the Franchise Agreement. Sellers shall receive credit for all
collections subsequent to Closing, whether by Sellers or Purchaser, under the
Sales Incentive Program Agreement ("SIP") and shall receive payment in
accordance with SIP; and
(b) Sellers shall have access to all records to assist
Sellers in the collection of certain accounts receivable or for litigation or
government filing purposes.
8. CLOSING DELIVERIES BY THE SELLERS AND THE STOCKHOLDERS. The
Sellers and the Stockholders agree to execute and deliver at Closing, or cause
to be executed and delivered at Closing, the following:
10
11
(a) Such instruments of transfer, assignment and conveyance
as shall be necessary or desirable in the judgment of Purchaser to vest in
Purchaser good and marketable title to the Assets free and clear of all
mortgages, liens, security interests, pledges, charges and other encumbrances.
Such instruments of transfer shall include:
(i) A ▇▇▇▇ of Sale from the Sellers, in the form
furnished to the Sellers by Purchaser;
(ii) The written consent of the lessor to the
assignment and assumption of the Lease provided, however, if Sellers cannot
obtain any such assignment and assumption, Sellers shall assign any and all
rights they have in the Lease. Sellers shall indemnify and hold harmless
Purchaser from any and all damages and costs incurred by Purchaser if the
lessor rejects the Sellers' assignment of its rights to Purchaser and either
reforms the Lease or terminates the Lease, so long as lessor's action is based
upon the assignment and not a breach by Purchaser of any of the terms of the
Lease Purchaser accepted from Sellers. Sellers shall use their best efforts to
obtain all such assignments and assumptions;
(iii) Cooperation of parties to receive written
consents of third parties under the Assumed Contracts to the assignment and
assumption of the Assumed Contracts as soon as possible;
(iv) Form UCC-3 termination statements, signed by
the creditor, to cancel any financing statements disclosed in Schedule 5 to
this Agreement (other than financing statements filed in connection with
Assumed Contracts);
(v) Unanimous written consents, signed by all
Stockholders of the Sellers, in a form consistent with the Sellers' bylaws and
state laws, approving the transactions contemplated hereunder, and any other
duly executed corporate and other documents which Purchaser may have reasonably
requested
11
12
hereunder, satisfactory in form and substance, in the reasonable judgment of
Purchaser, and where appropriate certified by the proper corporate or
governmental authorities; and
(vi) The written consents of any other persons
whose approval or consent to the execution, delivery, and performance of this
Agreement by the Sellers is legally or contractually required.
(b) The originals of the Lease, and (if written) the
Assumed Contracts;
(c) A certificate signed by the president of Sellers to
the effect that all representations and warranties of Sellers contained in this
Agreement are true at and as of Closing, that Sellers have performed all
agreements on its part required to be performed hereunder, and that Sellers are
not in default under any of the provisions of this Agreement;
(d) Copies of insurance policies conforming to Subsection
10(m);
(e) A letter to the telephone company servicing Sellers
requesting transfer to Purchaser of the telephone number (including numbers for
facsimile machines and modems) and listings applicable to the Office;
(f) List of accounts receivable as of the Closing Date as
provided in Section 7;
(g) Any names or addresses Sellers have registered for
use on the Internet; and
12
13
(h) No later than (5) days prior to Closing, Sellers
shall submit to Purchaser such other instruments, documents or affidavits, in
form and substance reasonably acceptable to Purchaser, as may be necessary to
effect the Closing.
9. CLOSING DELIVERIES BY PURCHASER. In addition to delivery of
the amount required under Subsection 4(a) above, Purchaser agrees to execute
and deliver at the Closing, or cause to be executed and delivered at Closing:
(a) Immediately available funds in the amount provided in
Subsection 4(a);
(b) Such instruments as shall be necessary or desirable
in the judgment of the Sellers to effect the assumption by Purchaser of the
Lease and the Assumed Contracts;
(c) Certified copy of resolutions duly adopted by the
Board of Directors of Purchaser authorizing the execution and delivery of this
Agreement and consummation of transactions described herein, which shall be in
full force and effect at the time of delivery;
(d) A certificate signed by the president of Purchaser to
the effect that all representations and warranties of Purchaser contained in
this Agreement are true at and as of Closing, that Purchaser has performed all
agreements on its part required to be performed hereunder, and that Purchaser
is not in default under any of the provisions of this Agreement;
13
14
(e) Written consent from the bank, approving the
transactions herein;
(f) Certified copy of resolutions authorizing ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ to act or sign documents on behalf of Purchaser as an authorized
agent; and
(g) With respect to Lease deposits, Sellers shall not
seek nor accept the return of the Lease deposit, or any part thereof, and
Purchaser shall pay to Sellers at Closing, among other payments, an amount
sufficient to cover Sellers' Lease deposit with Lessor. In the event lessor
terminated the Lease agreement and the termination is based upon the change of
lessees, Sellers shall request return of Lease deposit from lessor and return
to Purchaser the amount received from lessor.
10. REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND THE
STOCKHOLDERS. The Sellers and the Stockholders, jointly and severally,
represent and warrant as follows:
(a) The Sellers have been duly organized and are validly
existing and in good standing under the laws of the State of Illinois;
(b) The Stockholders together own all of the issued and
outstanding stock of the Sellers. The execution, delivery, and performance of
this Agreement have been duly authorized by the Board of Directors of the
Sellers, and all necessary Stockholders action under the Sellers' bylaws and
Illinois law has
14
15
been taken for approval of the execution and delivery of this Agreement by the
Sellers, their performance of the terms of this Agreement, and the consummation
of the transactions contemplated hereunder;
(c) The execution and delivery of this Agreement, the
Sellers' performance hereunder, and the consummation of the transactions herein
contemplated, do not, and to the best of the Stockholders' knowledge will not
immediately or with the passage of time, the giving of notice or otherwise,
result in the breach of, constitute a default or violation under, or accelerate
any obligation under any agreement or other instruments to which either the
Sellers or any of the Stockholders are a party, or may be bound, so as to give
or create any rights in third parties with respect to the Assets;
(d) The Sellers have good title and right to use of all
trade names, trademarks or service marks used or available for use in Sellers'
Office, and neither the Sellers nor the Stockholders have notice of any claim
concerning a violation of or infringement upon the rights of any third party
with respect to the use of any trade name, trademark, service ▇▇▇▇, copyright
or patent;
(e) This Agreement and the other agreements and
transactions contemplated herein to which the Sellers are or will be a party
will each, upon execution and delivery, be a legal, valid, and binding
obligation of the Sellers, enforceable in accordance with its terms, except as
may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally;
15
16
(f) Except as disclosed in Schedule 5, the Sellers have
good and marketable title to the Assets free and clear of all mortgages, liens,
security interests, pledges, charges, obligations and other encumbrances;
(g) The Sellers have previously delivered to Purchaser
the Sellers' most recent federal income tax returns, balance sheets as of June
30, 1996, together with the Sellers' income statements for the fiscal year then
ended, and the interim balance sheets and income statements of the Sellers,
June 30, 1996, (collectively, the "Financial Statements"). The Financial
Statements reflect or provide for all material claims against, and all material
debts and liabilities relating to, the Office, fixed or contingent, as of the
dates of the Financial Statements. There has not been any change since the
date of the most recent Financial Statements which materially and adversely
affected the Office or the Assets or the financial condition or results of the
operation of the Sellers. The Financial Statements are true, correct and
complete and were prepared in good faith in accordance with a cash basis of
accounting which system is a comprehensive accounting method used by Sellers;
(h) The Sellers have filed all federal, state, and local
tax returns including income, sales, and payroll, which were required to be
filed prior to the date of this Agreement and have made payment of all taxes
shown by those returns to be due and payable;
(i) The Sellers have all requisite power and all known
necessary permits, certificates, contracts, approvals and other authorizations
required by federal, state, city, county or other municipal
16
17
bodies to own, lease, and use the Assets to operate the Office in the manner in
which they are presently operated;
(j) In connection with the operation of the Office and
ownership and use of the Assets, there are not now and have not been any
material failures to comply with any applicable known local, state or federal
laws, regulations, ordinances or administrative or judicial orders, and no
allegations have been made of any such failure;
(k) Sellers are not subject to any order of any court or
governmental authority; any pending or, to the best of the Sellers' and the
Stockholders' knowledge, threatened action, suit, proceeding, inquiry or
investigation at law or in equity; or any proceeding before any court,
arbitrator, public board or body, in which an unfavorable decision, ruling or
finding would, in any way, prevent the carrying out of this Agreement or any of
the transactions contemplated hereunder, declare unlawful any such
transactions, cause such transactions to be rescinded, have a material adverse
effect on the Office or the financial condition of the Sellers;
(l) Except for the Lease and the Assumed Contracts, and
the encumbrances listed in Schedule 5, there are no agreements, Lease,
contracts, charges, encumbrances or restrictions which may restrict Purchaser's
use or right to use any of the Assets or which create obligations for which
Purchaser could be liable;
17
18
(m) The Sellers have maintained liability insurance for
any claims which may have arisen or cause of action which may have accrued
during Sellers' ownership and/or operation of the Assets and the Office. Such
liability insurance is of the "occurrence" type, so that if the policies are
discontinued by the Sellers after the Closing Date, liability insurance
coverage will nevertheless continue (subject to the terms and conditions of
such policies) with respect to such claims and causes of action;
(n) Neither this Agreement nor any Exhibit, Schedule, or
attachment hereto, nor any certificate or other information or document
furnished by or on behalf of the Sellers or the Stockholders knowingly contains
any untrue statement of a material fact, or knowingly omits to state a material
fact necessary in order to make the statements contained herein or therein not
misleading;
(o) Schedule 6 to this Agreement is a list of all persons
currently employed by the Sellers. Schedule 6 accurately and completely shows
the listed employees' current rates of compensation. Sellers have no
employment agreements with any of its employees which Purchaser will be
required to assume and has no oral or written understandings with any of its
employees which relate to terms or conditions of such employee's employment
which Purchaser will be required to assume. Purchaser has agreed to employ
under employment at will agreements for Sellers' staff employees; and
(p) The Sellers have no pension sharing plans or employee
benefit plans (as that term is defined in the federal law commonly known as the
Employees' Retirement Income Security Act, as amended) for any of its
employees, which Purchaser will be required to assume.
18
19
11. COVENANTS OF THE SELLERS AND THE STOCKHOLDERS. The Sellers
and the Stockholders covenant that, between the date of this Agreement and the
Closing, they will:
(a) Carry on the business of the Office in the ordinary
course;
(b) With Sellers' approval which will not be unreasonably
withheld and subject to any attorney client privilege, give Purchaser and its
attorneys, auditors and other representatives full access during normal
business hours to the Office and to the properties, books, contracts,
commitments and records pertaining to the Office;
(c) With Sellers' approval which will not be unreasonably
withheld and subject to any attorney client privilege, provide Purchaser with
access to such information concerning the affairs of the Office as Purchaser
may reasonably request, including authorizing the Sellers' auditors, attorneys
and other representatives to cooperate with Purchaser's auditors and attorneys
and other representatives and authorizing the Sellers' auditors to give
Purchaser's auditors full access to their files and working papers with respect
to the Office;
(d) Do all reasonable things and cause all reasonable
things to be done to ensure that the warranties and representations of the
Sellers and the Stockholders contained in this Agreement remain true and
correct throughout the period until Closing, as if such representations and
warranties were continuously made throughout such period;
19
20
(e) Not enter into any new contracts, commitments or
transactions pertaining to the Office, except in the ordinary course of
business;
(f) Not sell, agree to sell, or otherwise dispose of any
of the Assets (other than supplies used or sold in the ordinary course of
business), without the prior written consent of Purchaser;
(g) Use best efforts to obtain the releases of all
mortgages, liens, security interests, pledges, charges, obligations, and other
encumbrances set forth in Schedule 5;
(h) Not create or assume any new pledge, lien, or
encumbrance with respect to the Assets;
(i) Maintain the Assets in as good repair, order, and
condition as they were in as of the date of this Agreement, reasonable wear and
use and damage by fire, acts of God, or other casualty excepted;
(j) Not incur any indebtedness, obligations, or liability
with respect to the Office or Assets or make any payment in respect thereof,
except in the ordinary course of business;
20
21
(k) Pay, satisfy, and discharge the current obligations
and liabilities of the Office in the ordinary course of business, including but
not limited to royalties accruing under the Franchise Agreements and any other
amounts payable to Purchaser and its affiliates;
(l) File all federal, state, and local tax returns which
become due prior to the Closing, and pay all taxes shown by those returns to be
due and payable, together with any interest or penalties which may be assessed
by taxing authorities on any taxes which were not timely paid;
(m) Maintain or cause to be maintained in full force and
effect all of the fire and other insurance on property and all of the
liability and other casualty insurance (including any bonds on personnel) that
was in effect with respect to the Office as of the date of this Agreement;
(n) Use reasonable efforts to preserve intact the
Sellers' business organization and the goodwill of the Sellers' Clients and
suppliers;
(o) Conduct advertising and promotion for the Office
consistent with the amount and type of such advertising and promotion conducted
during the twelve months prior to the date of this Agreement;
(p) Maintain the books of account and records of the
Office in the usual manner;
21
22
(q) Promptly, at Purchaser's request, join and cooperate
in any application which Purchaser may make in order to ensure the timely
transfer of any licenses, permits, or certificates to Purchaser at Closing;
(r) Promptly advise Purchaser in writing of any material
adverse change with respect to the Office, the Assets, or the financial
condition of the Sellers; and
(s) Deliver to Purchaser prompt written notice of any
event or condition known to either the Sellers or to any of the Stockholders
which, if it had existed on the date of execution of this Agreement, would have
constituted a breach of any of their representations and warranties under this
Agreement.
12. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants as follows:
(a) Purchaser has been duly organized and is validly
existing and in good standing under the laws of the Commonwealth of
Pennsylvania. Purchaser is qualified to do business and is in good standing
under the laws of the State of Texas, where it has its headquarters.
Purchaser's wholly owned subsidiary Advance Processing Systems, Inc. is
qualified to do business and is in good standing under the laws of the State of
Illinois;
(b) The execution, delivery and performance of this
Agreement have been duly authorized by the Board of Directors of Purchaser, and
Purchaser has the complete and unrestricted power and authority to, and has
taken all corporate action necessary to enter into, execute and deliver this
22
23
Agreement and to perform all of its obligations hereunder and to consummate all
transactions contemplated herein; and
(c) This Agreement and the other agreements and
transactions contemplated herein to which Purchaser is or will be a party will
each, upon execution and delivery, be a legal, valid and binding obligation of
Purchaser enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally. This Agreement does not conflict with any other
agreement affecting Purchaser.
13. COVENANTS OF PURCHASER. Purchaser covenants that, between the
date of this Agreement and the Closing:
(a) Purchaser will offer to hire the employees of the
Sellers listed on Schedule 6, subject to Purchaser's ordinary pre-employment
and post-employment standards and conditions, at rates of pay and with benefits
consistent with those of similarly-situated employees of Purchaser. Purchaser
shall have no obligation to offer employment to any specific individual listed
in Schedule 6 who does not meet Purchaser's ordinary standards and conditions,
or to offer any individual on Schedule 6 pay or benefits comparable to those
identified in such Schedule. Purchaser assumes no liability for any wages or
other benefits (including but not limited to bonuses, vacations, sick leave,
retirement benefits, and medical benefits) accrued by any person listed in
Schedule 6 during such person's employment by the Sellers. Purchaser shall
recognize the
23
24
original date of hire of employees shown on Schedule 6 and employed after
Closing by Purchaser for purpose of service related benefits by Purchaser;
(b) Purchaser shall use reasonable efforts to assist the
Sellers in obtaining necessary consents and approvals to the assignment of the
Lease and the Assumed Contracts and any other rights which are to be assumed by
Purchaser in accordance with this Agreement;
(c) Purchaser shall make applications to such
governmental authorities and agencies as Purchaser deems appropriate to ensure
that licenses, permits, and certificates held by the Sellers are transferred to
Purchaser as of the Closing, and at the request of the Sellers shall join and
cooperate in any such application which the Sellers may make; and
(d) Purchaser shall do all reasonable things and cause
all reasonable things to be done to ensure that the warranties and
representations of Purchaser contained in this Agreement remain true and
correct throughout the period until Closing, as if such representations and
warranties were continuously made throughout such period.
14. INDEMNITY BY THE SELLERS AND THE STOCKHOLDERS. Without
limiting any of their other obligations under this Agreement, the Sellers and
the Stockholders, individually agree to indemnify and hold harmless Purchaser
and its affiliates, Officers, directors, Stockholders and employees against and
from any loss, liability, damages, cost or expense incurred by them (including,
but not limited to, reasonable
24
25
attorneys' and accounting fees and expenses) based upon, arising out of, or
relating to: (i) any materially inaccurate, untruthful or erroneous
representation or warranty of the Sellers or the Stockholders set forth in
this Agreement or any certificate or document delivered pursuant to this
Agreement; (ii) any material failure to perform with respect to any of the
covenants, conditions or agreements of the Sellers or the Stockholders set
forth in this Agreement, or any transaction contemplated in this Agreement,
except that each Stockholder shall be liable to Purchaser only for Sellers' or
such Stockholders' individual conduct and compliance with the non-compete
provisions of this Agreement subsequent to the Closing; or (iii) the ownership
or operation of the Office through the Closing Date.
15. INDEMNITY BY PURCHASER. Purchaser agrees to indemnify and
hold harmless the Sellers and the Stockholders against and from any loss,
liability, damages, cost or expense incurred by them (including but not limited
to reasonable legal, attorneys' and accounting fees and expenses) based upon,
arising out of, or relating to: (i) any breach of any representation or
warranty of Purchaser set forth in this Agreement or any certificate or
document delivered pursuant to this Agreement; (ii) the breach of any covenant
or agreement of Purchaser set forth in this Agreement; or (iii) the ownership
or operation of the Office after the Closing Date.
16. TERMINATION OF AGREEMENTS. The Sellers and the
Purchaser agree, that upon completion of the Closing, the Franchise Agreements
and any other agreements relating to the Franchise will terminate without
separate notice to any party as of the Closing Date, subject to the
post-termination obligations of the Sellers and Purchaser under the Franchise
Agreement and any other agreements, including but not limited to
25
26
SIP. If the parties fail to Close for any reason, the Franchise Agreement, SIP
Agreement, and any other agreements thereto, shall remain in full force and
effect in accordance with their terms.
17. LOSS OR DESTRUCTION. Sellers shall continue to own and
operate the Offices until the Closing Date. Sellers shall assume all risk of
loss, destruction, or damage due to fire or other casualty until such date.
Purchaser shall have the right to cancel this Agreement if the Offices are
interrupted prior to said date by loss, destruction, or damage due to fire or
other casualty. If Purchaser does not exercise its right to cancel, as stated
herein, Purchaser shall take the Assets in the existing condition, together
with any insurance proceeds payable by virtue of such loss or damage.
18. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION TO CLOSE. The
obligation of Purchaser to consummate the transactions herein contemplated is,
at Purchaser's option, subject to the following express conditions precedent:
(a) The Assets shall be free and clear of all mortgages,
liens, security interests, pledges, charges, obligations and other
encumbrances;
(b) The representations and warranties of the Sellers and
the Stockholders contained in this Agreement shall be true in all material
respects at and as of Closing, as though such representations and warranties
had been made at and as of the Closing;
26
27
(c) The Sellers and the Stockholders shall have delivered
all of the items to be delivered by them to Purchaser at Closing pursuant to
Subsection 8 above, and shall not be in default under any other provision of
this Agreement at or prior to Closing;
(d) The Assets shall not have been damaged as the result
of any act of God, fire, flood, war, labor disturbance or similar calamity
(unless Purchaser has waived the event), and there shall have been no material
adverse changes in the Assets, the Office, or the financial condition of the
Sellers since the execution of this Agreement;
(e) Purchaser has obtained approval of its Senior Lenders
for this transaction; and
(f) Sellers shall have delivered to Purchaser executed
UCC-3 statements for any liens on Sellers' Assets.
19. CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATION TO CLOSE. The
obligation of the Sellers to consummate the transactions contemplated herein at
Closing is, at the option of the Sellers, subject to the following express
conditions precedent:
(a) The representations and warranties of Purchaser
contained in this Agreement were true when made and shall be true in all
material respects at and as of Closing, as though such representations and
warranties had been made at and as of Closing; and
27
28
(b) Purchaser shall have delivered all of the items to be
delivered by it to the Sellers and the Stockholders at Closing pursuant to
Subsection 9 above, and shall not be in default under any other provisions of
this Agreement at or prior to Closing.
20. ADDITIONAL POST-CLOSING RESPONSIBILITIES. The parties shall
comply with the following obligations after the Closing:
(a) At Purchaser's request, without further
consideration, the Sellers and the Stockholders will execute and deliver after
Closing such further instruments of conveyance and transfer and take such other
action as Purchaser may reasonably require for the transfer of the Assets;
(b) At the request of Sellers, without further
consideration, Purchaser will execute and deliver after Closing such further
evidence as the Sellers may reasonably require of Purchaser's assumption of the
Lease and the Assumed Contracts;
(c) For ninety (90) days after the Closing Date at
Purchaser's request, the Sellers and the Stockholders shall assist Purchaser in
every reasonable manner in billing and collection efforts and in maintaining
the business relationships presently enjoyed by the Sellers and the
Stockholders with respect to the Office;
28
29
(d) Except for assisting Professional Staffing Services
initially in the implementation of Spectrum Software, the Sellers and the
Stockholders agree that for a period of three (3) years after the Closing
Date, they will not, directly or indirectly:
(i) own, operate, manage, be employed by, engage
in, provide assistance to, or have a financial interest in any temporary
employment services business, permanent placement business, or similar business
within the county(s) of ▇▇▇▇, DuPage and McHenry , in the State of Illinois
and within the county(s) of Kalamazoo , in the State of Michigan, so long as
Purchaser, or a person or entity deriving title from Purchaser to operate the
Office, continues to operate the Office. For purposes of this provision
"temporary employment services business" includes, but is not limited to,
"employee leasing," "temp-to-hire," and "contract temporary" services;
(ii) solicit employment services business from any
client with whom the Office did business, if such client placed an order with
Sellers within the three (3) year period prior to the Closing Date; or
(iii) for a period of three (3) years employ or
seek to employ any employee of the Office or Purchaser or in any other manner
attempt, directly or indirectly, to influence, induce or encourage any employee
to leave the employment of the Office or Purchaser.
(e) Within fourteen (14) days subsequent to Closing,
Sellers shall provide to Purchaser an affidavit stating that all state and
local taxes due through the Closing Date have been paid. Sellers shall timely
file all federal, state and local tax returns relating to the period through
the Closing Date which
29
30
become due after the Closing Date; shall timely pay all taxes shown by such
returns to be due and payable, together with any interest or penalties which
may be assessed by taxing authorities on any taxes which were not timely paid;
and shall deliver to Purchaser copies of all tax clearance letters and closing
notices received from government authorities which relate to the Office.
(f) (i) Sellers and ▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇") hereby
each acknowledges, covenants, agrees and authorizes, that if ▇▇▇▇▇ breaches or
causes Sellers to breach Subsection 20(d) of this Agreement, Purchaser shall
have the right to withhold payment under the Rolling ▇▇▇▇▇▇▇ Note, the
Kalamazoo Note, the Des Plaines Note and all other amounts otherwise payable by
Purchaser to Sellers and the Stockholders, whether or not evidenced by a note
(collectively, the "Note Amounts"); and upon determination of the amount of any
damages sustained by Purchaser because of such breach of Subsection 20(d),
Purchaser shall have the right to offset and retain such damages against an
aggregate amount, which shall equal fifty percent (50%) of the aggregate amount
of all outstanding principal due and owing under and pursuant to the Note
Amounts.
(ii) Sellers and ▇▇▇▇ ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇") hereby each
acknowledges, covenants, agrees and authorizes, that if ▇▇▇▇▇▇▇▇ breaches or
causes Sellers to breach Subsection 20(d) of this Agreement, Purchaser shall
have the right to withhold payment under the Rolling ▇▇▇▇▇▇▇ Note, the
Kalamazoo Note, the Des Plaines Note and all other amounts otherwise payable by
Purchaser to Sellers and the Stockholders, whether or not evidenced by a note
(collectively, the "Note Amounts"); and upon determination of the amount of
any damages sustained by Purchaser because of such breach of Subsection 20(d),
Purchaser shall have the right to offset and retain such damages against an
aggregate amount,
30
31
which shall equal fifty percent (50%) of the aggregate amount of all
outstanding principal due and owing under and pursuant to the Note Amounts.
(iii) Sellers and Stockholders each hereby further
acknowledge, covenant and agree that Purchaser shall retain the above-stated
rights of offset and that Purchaser shall not be in breach of the terms of this
Agreement until resolution of the breach of Subsection 20(d) occurs, whether by
agreement, compromise, settlement or final unappealable judgment.
(iv) The withholding of Note payments to either or both
Stockholders and the establishment of actual damages shall be in addition to
all other rights of Purchaser whether at law or in equity.
21. NOTICES. All notices pursuant to this Agreement shall be sent
in writing to addresses set forth below, unless changed by written notice in
accordance with this Section 21. Any notice sent by telecopy shall be
confirmed by mail.
To Sellers and/or the Stockholders: ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
412 HILL COURT
------------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
31
32
To Purchaser: ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇, INC.
------------------------------
12801 N. CENTRAL EXPRESSWAY
------------------------------
SUITE 700
------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
------------------------------
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Telecopy No.: (▇▇▇)▇▇▇-▇▇▇▇
22. TERMINATION. (a) The Sellers or Purchaser may terminate
this Agreement by written notice to the other in the event the transactions
contemplated herein have not closed by November 15, 1996 ; and
(b) This Agreement may also be terminated at any time
prior to the Closing date:
(i) By mutual consent of Purchaser and Sellers;
(ii) By the Purchaser, if any of the conditions of
its obligations hereunder shall not have been satisfied at or prior to the
Closing on the Closing Date and shall not have been waived by it; and
(iii) By the Sellers, if any of the conditions of
its obligations hereunder shall not have been satisfied at or prior to the
Closing on the Closing Date, or if the senior lender approval by this Agreement
shall not have been obtained by Purchaser and the requirements shall not have
been waived by it.
(c) Such notice of termination shall be effective as to
all parties to this Agreement, whether or not they receive notice individually.
If this Agreement is terminated by the Sellers or by
32
33
Purchaser for the reason stated above without consummation of the transactions
contemplated herein, such termination shall be without liability or further
obligation by any party to any other party to this Agreement.
23. GENERAL PROVISIONS. (a) Each party shall bear its
own legal and other costs and expenses in connection with the negotiation,
preparation and execution of this Agreement, and the performance of the
transactions contemplated hereby;
(b) This Agreement and the documents referred to herein
constitute the entire agreement among the parties with respect to the sale and
purchase of the Assets and supersede all previous written or oral negotiations,
commitments, and writing concerning the same subject matter;
(c) This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument;
(d) This Agreement may be amended only in writing and
executed by all of the parties;
(e) This Agreement will inure to the benefit of, and
bind, the respective heirs, personal representatives, successors and permitted
assigns of the parties;
(f) The parties represent that no person is entitled to
any brokerage commission, finder's fee, or any other like payment in connection
with any transaction contemplated by this Agreement, by reason of the action of
any party to this Agreement; and
33
34
(g) This Agreement shall be governed by the laws of the
State of Texas.
24. MEDIATION AND ARBITRATION. THE PARTIES AGREE THAT ANY
AND ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS
AGREEMENT SHALL BE SUBMITTED TO J.A.M.S/ENDISPUTE, OR ITS SUCCESSOR, FOR
MEDIATION, AND IF THE MATTER IS NOT RESOLVED THROUGH MEDIATION, THEN IT SHALL
BE SUBMITTED TO J.A.M.S./ENDISPUTE, OR ITS SUCCESSOR, FOR FINAL AND BINDING
ARBITRATION. EITHER PARTY MAY COMMENCE MEDIATION BY PROVIDING TO
J.A.M.S/ENDISPUTE, AND THE OTHER PARTY A WRITTEN REQUEST FOR MEDIATION, SETTING
FORTH THE SUBJECT OF THE DISPUTE AND THE RELIEF REQUESTED. THE PARTIES WILL
COOPERATE WITH J.A.M.S/ENDISPUTE AND WITH ONE ANOTHER IN SELECTING A MEDIATOR
FROM J.A.M.S/ENDISPUTE'S PANEL OF NEUTRALS, AND IN SCHEDULING THE MEDIATION
PROCEEDINGS. THE PARTIES COVENANT THAT THEY WILL PARTICIPATE IN THE MEDIATION
IN GOOD FAITH, AND THAT THEY WILL SHARE EQUALLY IN ITS COSTS. ALL OFFERS,
PROMISES, CONDUCT AND STATEMENTS, WHETHER ORAL OR WRITTEN, MADE IN THE COURSE
OF THE MEDIATION BY ANY OF THE PARTIES, THEIR AGENTS, EMPLOYEES, EXPERTS AND
ATTORNEYS, AND BY THE MEDIATOR OR ANY J.A.M.S/ENDISPUTE EMPLOYEES, ARE
CONFIDENTIAL, PRIVILEGED AND INADMISSIBLE FOR ANY PURPOSE, INCLUDING
IMPEACHMENT, IN ANY ARBITRATION OR OTHER PROCEEDING INVOLVING THE PARTIES,
PROVIDED THAT EVIDENCE THAT IS OTHERWISE ADMISSIBLE OR DISCOVERABLE SHALL NOT
BE RENDERED INADMISSIBLE OR NON-DISCOVERABLE AS A RESULT OF ITS USE IN THE
MEDIATION.
THE PARTIES AGREE THAT ANY AND ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING
OUT OF OR RELATING TO THIS AGREEMENT THAT ARE NOT RESOLVED BY THEIR MUTUAL
AGREEMENT OR MANDATORY OR REASONABLE MEDIATION SET FORTH ABOVE, SHALL BE
SUBMITTED TO FINAL AND BINDING ARBITRATION BEFORE J.A.M.S/ENDISPUTE, OR ITS
34
35
SUCCESSOR, PURSUANT TO THE UNITED STATES ARBITRATION ACT, 9 U.S.C. SEC. 1 ET
SEQ. EITHER PARTY MAY COMMENCE THE ARBITRATION PROCESS CALLED FOR IN THIS
AGREEMENT BY FILING A WRITTEN DEMAND FOR ARBITRATION WITH J.A.M.S/ENDISPUTE,
WITH A COPY TO THE OTHER PARTY. THE ARBITRATION WILL BE CONDUCTED IN
ACCORDANCE WITH THE PROVISION OF J.A.M.S/ENDISPUTE'S COMPREHENSIVE ARBITRATION
RULES AND PROCEDURES IN EFFECT AT THE TIME OF FILING OF THE DEMAND FOR
ARBITRATION. THE PARTIES WILL COOPERATE WITH J.A.M.S/ENDISPUTE AND WITH ONE
ANOTHER IN SELECTING AN ARBITRATOR FROM J.A.M.S/ENDISPUTE'S PANEL OF NEUTRALS,
AND IN SCHEDULING THE ARBITRATION PROCEEDINGS. THE PARTIES COVENANT THAT THEY
WILL PARTICIPATE IN THE ARBITRATION IN GOOD FAITH, AND THAT THEY WILL SHARE
EQUALLY IN ITS COSTS. THE PROVISIONS OF THIS PARAGRAPH 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.
25. CONFIDENTIALITY. Neither Purchaser nor Sellers, nor
any of their respective Stockholders, affiliates, Officers, employees, agents
or representatives shall: (a) make any press releases or any published
statement concerning the transactions contemplated herein without the prior
written consent of all of the parties hereto, which consent shall not be
withheld where such press releases or statement is required by applicable law;
or (b) disclose the terms or existence of this Agreement to any person or
entity, other than to their respective attorneys and other representatives, and
to those parties such as bankers and lessors with whom they must communicate in
order to consummate the proposed transactions. Purchaser and Sellers shall be
permitted to discuss the transactions contemplated herein with their respective
suppliers
35
36
and vendors, provided that they instruct such suppliers and vendors to keep all
such communications confidential.
26. BULK TRANSFER LAWS. The parties waive compliance with
the requirements of the bulk transfer or bulk sales law of any jurisdiction in
connection with the sale of the Assets to Purchaser under this Agreement.
Sellers shall indemnify and hold Purchaser harmless against any and all losses
incurred by Purchaser as a result of noncompliance with any such laws.
27. RELEASE BY SELLERS AND STOCKHOLDERS. The Sellers and
each Stockholder, for themselves and on behalf of their officers, directors,
employees, successors, representatives, and agents, do hereby irrevocably and
unconditionally release, acquit, and forever discharge (the "Release")
Purchaser, its officers, directors, stockholders, employees, successors,
representatives, and agents from any and all claims, debts, damages, demands,
liabilities, suits in equity, complaints, grievances, obligations, promises,
agreements, rights, controversies, consents, losses, damages, attorneys' fees
and expenses, punitive damages and other compensation, suits, appeals, actions,
and causes of actions, of whatever kind of character, whether heretofore or
hereafter accruing, whether known or unknown, suspected or unsuspected,
specified or unspecified, fixed or contingent, liquidated or unliquidated, for
or because of any matter or thing done, omitted, or suffered to be done by,
Purchaser, its officers, directors, stockholders, employees, successors,
representatives, and agents, for any incidents, including those past and
present, which may have existed prior to, or contemporaneously with, the
execution of this Agreement, or subsequent to the execution of this Agreement
if arising out of conduct occurring before the execution of this Agreement.
The Sellers and each
36
37
Stockholder hereby represent that nothing which is released hereunder has been
transferred, assigned, or given away prior to the date hereof to any person,
firm, or entity.
(a) It is the intention of the Sellers and each Stockholder in
executing this Agreement that the Release shall be effective as a bar to each
and every claim, demand, and cause of action hereinabove specified, and the
Sellers and each Stockholder hereby knowingly and voluntarily waive any and all
rights and benefits. The Sellers and each Stockholder expressly consent that,
this release shall be given full force and effect according to each and all of
its express terms and provisions, including those relating to unknown and
unspecified claims, demands, and causes of action. The Sellers and each
Stockholder acknowledge and agree that this waiver is an essential and material
term of the Release of this Agreement and without the waiver of transaction
contemplated by this Agreement would not be consummated.
28. RELEASE BY PURCHASER. The Purchaser, for itself and on
behalf of their officers, directors, employees, successors, representatives,
and agents, do hereby irrevocably and unconditionally release, acquit, and
forever discharge (the "Release") the Sellers and Stockholders, its officers,
directors, employees, successors, representatives, and agents from any and all
claims, debts, damages, demands, liabilities, suits in equity, complaints,
grievances, obligations, promises, agreements, rights, controversies, consents,
losses, damages, attorneys' fees and expenses, punitive damages and other
compensation, suits, appeals, actions, and causes of actions, of whatever kind
of character, whether heretofore or hereafter accruing, whether known or
unknown, suspected or unsuspected, specified or unspecified, fixed or
contingent, liquidated or unliquidated, for or because of any matter or thing
done, omitted, or suffered to be done by, the Sellers and
37
38
Stockholders, its officers, directors, employees, successors, representatives,
and agents, for any incidents, including those past and present, which may have
existed prior to, or contemporaneously with, the execution of this Agreement,
or subsequent to the execution of this Agreement if arising out of conduct
occurring before the execution of this Agreement. The Purchaser hereby
represents that nothing which is released hereunder has been transferred,
assigned, or given away prior to the date hereof to any person, firm, or
entity.
(a) It is the intention of the Purchaser in executing this
Agreement that the Release shall be effective as a bar to each and every claim,
demand, and cause of action hereinabove specified, and the Purchaser hereby
knowingly and voluntarily waives any and all rights and benefits. The
Purchaser expressly consents that, this release shall be given full force and
effect according to each and all of its express terms and provisions, including
those relating to unknown and unspecified claims, demands, and causes of
action. The Purchaser acknowledges and agrees that this waiver is an essential
and material term of the Release of this Agreement and without the waiver of
transaction contemplated by this Agreement would not be consummated.
29. SURVIVAL OF REPRESENTATIONS. ALL representations, warranties and
agreements made by the parties hereto, shall survive Closing.
38
39
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
under seal of the date first written above.
PAR FIVE SERVICES, INC. STOCKHOLDERS:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------- ------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇
President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President