1
EXHIBIT 10.19
STOCK PURCHASE AGREEMENT
dated October 30, 1998,
and effective as of October 1, 1998,
by and among
ABR INFORMATION SERVICES, INC.,
a Florida corporation,
WESTERN PENSION SERVICE CORPORATION,
a California corporation,
and
XXXXXX X. XXXXXXX,
as Shareholder
2
STOCK PURCHASE AGREEMENT
TABLE OF CONTENTS
1. PURCHASE AND SALE OF SHARES........................................... 1
2. PURCHASE PRICE - PAYMENT.............................................. 1
2.1. Purchase Price............................................... 1
2.2. Payment of Purchase Price.................................... 3
3. JOINT AND SEVERAL REPRESENTATIONS AND WARRANTIES OF
COMPANY AND SHAREHOLDER............................................... 5
3.1. Corporate.................................................... 5
3.2. Shareholder.................................................. 6
3.3. No Violation................................................. 7
3.4. Financial Statements......................................... 7
3.5. Tax Matters.................................................. 7
3.6. Accounts Receivable.......................................... 9
3.7. Absence of Certain Changes................................... 9
3.8. Absence of Undisclosed Liabilities........................... 10
3.9. No Litigation................................................ 10
3.10. Compliance With Laws and Orders.............................. 11
3.11. Title to and Condition of Properties......................... 12
3.12. Insurance.................................................... 14
3.13. Contracts and Commitments.................................... 15
3.14. Labor Matters................................................ 16
3.15. Employee Benefit Plans....................................... 17
3.16. Employment Compensation...................................... 21
3.17. Trade Rights................................................. 21
3.18. Major Customers and Suppliers................................ 22
3.19. Service Warranty and Liability............................... 22
3.20. Bank Accounts................................................ 23
3.21. Affiliates' Relationships to Company......................... 23
3.22. Assets Necessary to Business................................. 23
3.23. No Brokers or Finders........................................ 23
3.24. Year 2000 Compliance......................................... 23
3.25. Systems Performance.......................................... 24
3.26. Software Ownership; Non Infringement......................... 24
3.27. Disclosure................................................... 25
4. REPRESENTATIONS AND WARRANTIES OF BUYER............................... 25
4.1. Corporate.................................................... 26
4.2. Authority.................................................... 26
4.3. No Brokers or Finders........................................ 26
4.4. Disclosure................................................... 26
i
3
4.5. Investment Intent............................................. 26
4.6. 1934 Act Registration......................................... 26
5. COVENANTS............................................................. 27
5.1. Employment and Noncompetition Agreement....................... 27
5.2. Noncompetition; Confidentiality............................... 27
5.3. General Release............................................... 28
6. INDEMNIFICATION....................................................... 28
6.1. By Shareholder................................................ 28
6.2. By Buyer...................................................... 29
6.3. Indemnification of Third-Party Claims......................... 29
6.4. Payment....................................................... 30
6.5. Indemnification for Environmental Matters..................... 30
6.6. Limitations on Indemnification................................ 31
6.7. No Waiver..................................................... 32
7. CLOSING............................................................... 32
7.1. Documents to be Delivered by Company and Shareholder.......... 32
7.2. Documents to be Delivered by Buyer............................ 33
8. TERMINATION........................................................... 34
9. RESOLUTION OF DISPUTES................................................ 34
9.1. Arbitration................................................... 34
9.2. Arbitrators................................................... 35
9.3. Procedures; No Appeal......................................... 35
9.4. Authority..................................................... 35
9.5. Entry of Judgment............................................. 35
9.6. Confidentiality............................................... 35
9.7. Continued Performance......................................... 35
9.8. Tolling....................................................... 35
10. MISCELLANEOUS......................................................... 36
10.1. Disclosure Schedule........................................... 36
10.2. Further Assurance............................................. 36
10.3. Disclosures and Announcements................................. 36
10.4. Assignment; Parties in Interest............................... 36
10.5. Law Governing Agreement....................................... 37
10.6. Amendment and Modification.................................... 37
10.7. Notice........................................................ 37
10.8. Expenses...................................................... 38
10.9. Entire Agreement.............................................. 39
10.10. Counterparts; Facsimile Signatures............................ 39
10.11. Headings...................................................... 40
10.12. Glossary of Terms............................................. 40
ii
4
Disclosure Schedule
Schedule 3.1.(e) Directors and Officers of the Company
Schedule 3.3 Violation, Conflict, Default
Schedule 3.4 Financial Statements
Schedule 3.5.(b) Tax Returns (Exceptions to Representations)
Schedule 3.5.(e) Tax, Other
Schedule 3.6 Accounts Receivable (Aged Schedule)
Schedule 3.7 Certain Changes
Schedule 3.8 Off-Balance Sheet Liabilities
Schedule 3.9 Litigation Matters
Schedule 3.10.(a) Non-Compliance with Laws
Schedule 3.10.(b) Licenses and Permits
Schedule 3.10.(c) Environmental Matters (Exceptions to Representations)
Schedule 3.11 Liens
Schedule 3.11.(c) Real Property
Schedule 3.12 Insurance
Schedule 3.13.(b) Personal Property Leases
Schedule 3.13.(d) Sales Commitments
Schedule 3.13.(f) Powers of Attorney
Schedule 3.13.(g) Collective Bargaining Agreements
Schedule 3.13.(h) Loan Agreements, etc.
Schedule 3.13.(i) Guarantees
Schedule 3.13.(l) Material Contracts
Schedule 3.14 Labor Matters
Schedule 3.15.(a) Employee Plans/Agreements
Schedule 3.16 Employment Compensation
Schedule 3.17 Trade Rights
Schedule 3.18.(a) Major Customers
Schedule 3.18.(b) Major Suppliers
Schedule 3.18.(c) Sales Representatives
Schedule 3.19 Service Warranty, Warranty Expense and Liability Claims
Schedule 3.20 Bank Accounts
Schedule 3.21.(a) Contracts with Affiliates
Schedule 3.21.(c) Obligations of and to Affiliates
Schedule 3.24 Year 2000 Noncompliance
Schedule 3.26 Software Ownership Exceptions
iii
5
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "Agreement"), dated October 30, 1998, and
effective as of October 1, 1998, by and among ABR Information Services, Inc., a
Florida corporation ("Buyer"), Western Pension Service Corporation, a
California corporation ("Company"), and Xxxxxx X. Xxxxxxx ("Shareholder").
RECITALS
1. Company is engaged in the business of providing retirement (including
401(k)) plan administration and consulting services to third parties (the
"Company Business"). Shareholder owns all of the issued and outstanding shares
(the "Shares") of capital stock of Company.
2. Company's facilities consist solely of leased offices at 0000 Xxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxxxx (the "Facilities").
3. Buyer desires to purchase the Shares from Shareholder and Shareholder
desires to sell the Shares to Buyer, upon the terms and conditions herein set
forth.
NOW THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants, agreements and conditions hereinafter
set forth, and intending to be legally bound hereby, the parties hereto agree
as follows.
1. PURCHASE AND SALE OF SHARES
Subject to the terms and conditions of this Agreement, effective as of the
Effective Date (as hereinafter defined) Shareholder shall sell to Buyer and
Buyer shall purchase from Shareholder all of the Shares.
2. PURCHASE PRICE - PAYMENT
2.1. Purchase Price.
2.1.(a) Amount. The aggregate purchase price (the "Purchase
Price") payable for the Shares shall be the sum of (a) SEVEN MILLION
DOLLARS ($7,000,000) and (b) a contingent payment (the "Contingent
Payment") based on the Company Business' net earnings before income
taxes ("Pre-Tax Earnings") for the twelve-month period commencing as
of October 1, 1998 (the "Contingent Payment Period").
2.1.(b) Calculation of Contingent Payment. The Contingent
Payment shall equal (i) ONE MILLION DOLLARS ($1,000,000), in the event
the Company Business' Pre-Tax Earnings for the Contingent Payment
Period equals or exceeds $1,200,000. No Contingent Payment shall be
due or payable
6
in the event the Company Business' Pre-Tax Earnings for the Contingent
Payment Period is less than $1,200,000.
2.1.(c) Calculation of Pre-Tax Earnings. The calculation of the
Company Business' Pre-Tax Earnings for the Contingent Payment Period
shall include revenue received from retirement plan administration and
consulting services but shall not include revenue received from COBRA
administration services or other services not performed by Company as
of the date hereof but offered by Buyer or any of its subsidiaries or
affiliates. Except as expressly provided herein, the calculation of
Pre-Tax Earnings shall be made in accordance with generally accepted
accounting principles applied on a consistent basis, subject to the
following adjustments:
(i) Any depreciation or amortization adjustments resulting
solely from the transactions contemplated by this Agreement shall
not be included for purposes of calculating Pre-Tax Earnings for
the Contingent Payment Period.
(ii) Notwithstanding Company's actual expenses for the
Contingent Payment Period relating to items and functions (such
as property and casualty insurance, errors and omissions
insurance, health and welfare programs and human resource
functions) that Company and Buyer mutually agree shall be
provided by Buyer or another subsidiary thereof, Company shall
accrue as an expense for purposes of calculating Pre-Tax Earnings
for the Contingent Payment Period the same dollar amount as it
accrued in the twelve months preceding the Effective Date with
respect to such items and functions.
(iii) The calculation of Pre-Tax Earnings for the Contingent
Payment Period shall not exclude any expense item (or series of
related items) relating to personnel matters or, in the case of
non-personnel matters, exceeding $10,000 annually, unless such
exclusion has been preapproved in writing by an officer of Buyer.
(iv) Company shall review with Buyer on a monthly basis any
and all expense items Company intends to exclude for purposes of
calculating Pre-Tax Earnings for the Contingent Payment Period.
(v) In the event Buyer (or any subsidiary thereof) generates
new retirement plan administration or consulting services
business for Company during the Contingent Payment Period, and/or
Company generates new COBRA or pension administration services
business (or other new business for similar administrative
services not performed by Company as of the date hereof), Buyer
and Company agree to make a reasonable allocation of sales and
other reasonable costs associated with
2
7
obtaining such new business for purposes of calculating Company's
Pre-Tax Earnings for the Contingent Payment Period.
(vi) The imputed interest expense on the Buyer Loan (as
hereinafter defined) shall be included in the calculation of
Pre-Tax Earnings for the Company Business for the Contingent
Payment Period.
2.1.(d) Buyer Loan. Buyer agrees to loan Company on the Closing
Date the sum of $68,906.21 (including the aggregate amount paid by
Buyer to Metro Commerce Bank), and thereafter prior to the end of the
Contingent Payment Period such additional amounts as may be reasonably
necessary to provide working capital for Company during the Contingent
Payment Period. The loan(s) described in this Section 2.1(d) are
referred to herein collectively as the "Buyer Loan." The proceeds of
the Buyer Loan (other than the aggregate amount paid by Buyer to Metro
Commerce Bank) shall be used solely as working capital for Company
during the Contingent Payment Period. The Buyer Loan shall be repaid
in full by Company to Buyer during the Contingent Payment Period. To
the extent that it is repaid after such time, the unpaid principal
balance in excess of $50,000 as of the end of the Contingent Payment
Period shall be charged in full against the Company Business' Pre-Tax
Earnings for the Contingent Payment Period.
2.1.(e) Interest on Buyer Loan. The calculation of the Company
Business' Pre-Tax Earnings for the Contingent Payment Period shall
include an imputed interest expense to Company equal to interest
calculated on the outstanding principal balance of the Buyer Loan
which remains unpaid from time to time, at the rate announced from
time to time by NationsBank N.A. (or its successor) as its prime rate.
Interest on the Buyer Loan calculated under this Section 2.1(e) shall
commence on the date the Buyer Loan is made to Company and continue
until the Buyer Loan is repaid in full.
2.2. Payment of Purchase Price. The Purchase Price shall be paid by Buyer
as follows:
2.2.(a) Cash to Shareholder. At the Closing, Buyer shall deliver
to the Shareholder the sum of Six Million Five Hundred Thousand
Dollars ($6,500,000).
2.2.(b) Contingent Payment. The initial calculation of the
Contingent Payment shall be made by Buyer, which shall deliver its
calculation on or before January 2, 2000 to Shareholder for his review
and comment. If Buyer and Shareholder are able to agree in writing
upon the amount of the Continent Payment within fifteen (15) days
following delivery of the initial calculation to Shareholder, then
Buyer shall pay such amount. Such payment of the Contingent Payment,
if any, shall be made to the Shareholder within fifteen (15) days
following the date of such written agreement; provided, however, that
3
8
in no event shall payment of the Contingent Payment, if any, be made
to the Shareholder prior to January 4, 2000. In the event Buyer and
Shareholder cannot agree on the amount of the Contingent Payment by
February 1, 2000, then the determination of the Contingent Payment
shall be submitted to binding arbitration in accordance with Article 9
of this Agreement.
2.2.(c) Purchase Price Holdback.
(i) On the Closing Date, Buyer will transfer the sum of Five
Hundred Thousand Dollars ($500,000) to a segregated
interest-bearing account with a bank or other financial
institution with a combined capital and surplus in excess of
$50,000,000, which amount shall be held by Buyer in such account
for the purpose of securing the indemnification obligations of
Company and Shareholder under this Agreement. For purposes
hereof, "Holdback Period" shall mean the period commencing on the
date hereof and ending on April 1, 1999, subject to extension as
hereinafter provided.
(ii) If, prior to the expiration of the Holdback Period,
Buyer determines to assert a claim for indemnification under
Article 6 of this Agreement, then Buyer shall give the
Shareholder written notice of such claim (for purposes of this
Section 2.2(c), a "Claim Notice"), specifying in reasonable
detail the basis therefor and the amount and calculation thereof.
If the Shareholder does not deliver to Buyer written notice of
an objection to the claim for indemnification within twenty (20)
days after receipt of the Claim Notice relating thereto, Buyer
shall be entitled to withdraw the dollar amount of its claim (as
set forth in the Claim Notice) from the segregated account. If
the Shareholder shall timely deliver to Buyer such written notice
of objection, then Buyer shall not make a withdrawal from the
segregated account with respect to the claim set forth in the
Claim Notice until: (x) Buyer and Shareholder have executed
joint written instructions referring to such Claim Notice and
directing Buyer to withdraw, for Buyer's own account, funds from
the segregated account; or (y) Buyer has received a copy of a
judgment, decree or order of a court, or copy of an arbitration
award, adjudicating the dispute with respect to such claim for
indemnification; whereupon Buyer shall withdraw from the
segregated account, for Buyer's own account, such amount as
provided therein.
(iii) If Buyer has not delivered a Claim Notice to
Shareholder prior to the expiration of the Holdback Period, or if
any and all Claim Notices delivered to Shareholder during the
Holdback Period have been resolved pursuant to subsection (ii)
above, then Buyer shall deliver to Shareholder the portion of the
funds held in the segregated account equal to (x) $500,000, less
(y) any amounts withdrawn by Buyer as provided
4
9
herein, plus (z) any interest earned with respect to such amount.
Buyer shall deliver such amount to the Shareholder promptly
after the expiration of the Holdback Period, unless one or more
Claim Notice(s) have not been finally resolved pursuant to
subsection (ii) above, in which case Buyer shall retain such
amount in the segregated account until: (a) Buyer and Shareholder
have executed joint written instructions referring to such Claim
Notice(s) and directing Buyer as to the disbursement of the funds
in the segregated account; or (b) Buyer has received a copy of a
judgment, decree or order of a court, or copy of an arbitration
award, adjudicating the dispute with respect to such Claim
Notice(s); whereupon Buyer shall disburse the funds in the
segregated account as provided therein.
2.2.(d) Method of Payment. All payments under this Section 2.2
shall be made in the form of certified or bank cashier's check payable
to the order of the recipient or, at the recipient's option, by wire
transfer of immediately available funds to an account previously
designated by the recipient in writing.
3. JOINT AND SEVERAL REPRESENTATIONS AND WARRANTIES OF COMPANY AND
SHAREHOLDER
Company and Shareholder, jointly and severally, make the following
representations and warranties to Buyer, each of which was true and correct on
the Effective Date (other than Section 3.2(b)), remains true as of the Closing
Date, shall be unaffected by any investigation heretofore or hereafter made by
or on behalf of Buyer, or any knowledge of Buyer other than as specifically
disclosed in the Disclosure Schedule delivered to Buyer at the time of the
execution of this Agreement, and shall survive the Closing of the transactions
provided for herein.
3.1. Corporate.
3.1.(a) Organization. Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California.
3.1.(b) Corporate Power. Company has all requisite corporate
power and authority to own, operate and lease its properties and to
carry on its business as and where such is now being conducted.
3.1.(c) Qualification. Company is not licensed or qualified to
do business as a foreign corporation in any jurisdiction. Neither the
character of the properties owned or leased by Company, nor the nature
of its business, makes such licensing or qualification necessary in
any jurisdiction.
3.1.(d) Subsidiaries. Company does not own any interest in any
corporation, partnership or other entity.
5
10
3.1.(e) Corporate Documents, etc. The copies of the Articles of
Incorporation and By-Laws of the Company, including any amendments
thereto, which have been delivered by Shareholder to Buyer are true,
correct and complete copies of such instruments as presently in
effect. The corporate minute book and stock records of the Company
which have been furnished to Buyer for inspection are true, correct
and complete and accurately reflect all material corporate action
taken by the Company. The directors and officers of the Company are
listed in Schedule 3.1.(e).
3.1.(f) Capitalization of the Company. The authorized capital
stock of the Company consists entirely of One Thousand (1,000) shares
of common stock, no par value. No shares of such capital stock are
issued or outstanding except for Six Hundred (600) shares of common
stock of the Company which are owned of record and beneficially by
Shareholder. All such shares of capital stock
of the Company are validly issued, fully paid and nonassessable.
There are no (a) securities convertible into or exchangeable for any
of the Company's capital stock or other securities, (b) options,
warrants or other rights to purchase or subscribe to capital stock or
other securities of the Company or securities which are convertible
into or exchangeable for capital stock or other securities of the
Company, or (c) contracts, commitments, agreements, understandings or
arrangements of any kind relating to the issuance, sale or transfer of
any capital stock or other equity securities of the Company, any such
convertible or exchangeable securities or any such options, warrants
or other rights.
3.2. Shareholder.
3.2.(a) Power. Shareholder has full power, legal right and
authority to enter into, execute and deliver this Agreement and the
other agreements, instruments and documents contemplated hereby (such
other documents sometimes referred to herein as "Ancillary
Instruments"), and to carry out the transactions contemplated hereby.
3.2.(b) Validity. This Agreement has been duly and validly
executed and delivered by Shareholder and is, and when executed and
delivered each Ancillary Instrument will be, the legal, valid and
binding obligation of Shareholder, enforceable in accordance with its
terms, except as such may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors' rights generally,
and by general equitable principles.
3.2.(c) Title. Shareholder has, and Buyer is receiving, good and
marketable title to the Shares to be sold by Shareholder hereunder,
free and clear of all Liens (as defined in Section 3.11(a)) including,
without limitation, voting trusts or agreements, proxies, marital or
community property interests.
6
11
3.3. No Violation. Except as set forth on Schedule 3.3, neither the
execution and delivery of this Agreement or the Ancillary Instruments nor the
consummation by Company and Shareholder of the transactions contemplated hereby
and thereby (a) will violate any statute, law, ordinance, rule or regulation
(collectively, "Laws") or any order, writ, injunction, judgment, plan or decree
(collectively, "Orders") of any court, arbitrator, department, commission,
board, bureau, agency, authority, instrumentality or other body, whether
federal, state, municipal, foreign or other (collectively, "Government
Entities"), (b) will require any authorization, consent, approval, exemption or
other action by or notice to any Government Entity (including, without
limitation, under any "plant-closing" or similar law), or (c) subject to
obtaining the consents referred to in Schedule 3.3, will violate or conflict
with, or constitute a default (or an event which, with notice or lapse of time,
or both, would constitute a default) under, or will result in the termination
of, or accelerate the performance required by, or result in the creation of any
Lien upon any of the assets of Company (or the Shares) under, any term or
provision of the Articles of Incorporation or By-Laws of Company or of any
contract, commitment, understanding, arrangement, agreement or restriction of
any kind or character to which Company or any Shareholder is a party or by
which Company or any Shareholder or any of its or their assets or properties
may be bound or affected.
3.4. Financial Statements. Included as Schedule 3.4 are true and complete
copies of the financial statements of Company consisting of (i) an audited
balance sheet of Company as of July 31, 1998, and the related audited
statements of income and cash flows for the year then ended (including the
notes contained therein or annexed thereto), and (ii) an audited balance sheet
of Company as of September 30, 1998 and the related audited statements of
income and cash flows for the eleven months then ended (including the notes
contained therein or annexed thereto), which financial statements have been
reported on, and are accompanied by, the signed, unqualified opinions of
Xxxxxxx and Carrade, independent auditors for Company for such periods. The
audited balance sheet of the Company as of September 30, 1998 is hereinafter
referred to as the "Recent Balance Sheet." All of such financial statements
(including all notes and schedules contained therein or annexed thereto) are
true, complete and accurate, have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis, have been
prepared in accordance with the books and records of Company, and fairly
present, in accordance with generally accepted accounting principles, the
assets, liabilities and financial position, the results of operations and cash
flows of Company as of the dates and for the years and periods indicated. In
addition to the foregoing, Company has (i) a net worth (i.e., stockholders'
equity), after write-off of all outstanding advances to Shareholder), of a
minimum of $300,000, (ii) working capital (i.e., current assets less current
liabilities) of a minimum of $100,000, and (iii) long-term indebtedness
(excluding an $88,000 installment note payable to Metro Commerce Bank) of less
than $100,000.
3.5. Tax Matters.
3.5.(a) Provision For Taxes. The provision made for taxes on the
Recent Balance Sheet is sufficient for the payment, either currently
or on a deferred basis, of all federal, state, foreign, county, local
and other income, ad valorem, excise, profits, franchise, occupation,
property, payroll, sales, use,
7
12
gross receipts and other taxes (and any interest and penalties) and
assessments, whether or not disputed, at the date of the Recent
Balance Sheet and for all years and periods prior thereto. Since the
date of the Recent Balance Sheet, Company has not incurred any taxes
other than taxes incurred in the ordinary course of business
consistent in type and amount with past practices of Company.
3.5.(b) Tax Returns Filed. Except as set forth on Schedule
3.5.(b), all federal, state, foreign, county, local and other tax
returns required to be filed by or on behalf of Company have been
timely filed and when filed were true and correct in all material
respects, and the taxes shown as due thereon were paid or adequately
accrued. True and complete copies of all tax returns or reports filed
by Company for each of its three most recent fiscal years have been
delivered to Buyer. Company has duly withheld and paid all taxes
which it is required to withhold and pay relating to salaries and
other compensation heretofore paid to the employees of Company.
3.5.(c) Tax Audits. The federal and state income tax returns of
Company have not been audited by the Internal Revenue Service or
appropriate state taxing authorities for any period. Company has not
received from the Internal Revenue Service or from the tax authorities
of any state, county, local or other jurisdiction any notice of
underpayment of taxes or other deficiency which has not been paid nor
any objection to any return or report filed by Company. There are
outstanding no agreements or waivers extending the statutory period of
limitations applicable to any tax return or report.
3.5.(d) No Consolidated Group. Company has never been a member
of an affiliated group of corporations that filed a consolidated tax
return. Company does not have any liability for the taxes of any
person or entity under Sections 1.1502-6 or 1.1502-78 of Title 26 of
the Code of Federal Regulations (or any similar provisions of state,
local or foreign income tax laws).
3.5.(e) Other. Except as set forth in Schedule 3.5.(e), since
December 31, 1979 Company has not (i) filed any consent or agreement
under Section 341(f) of the Internal Revenue Code of 1986, as amended
(the "Code"), (ii) applied for any tax ruling, (iii) entered into a
closing agreement with any taxing authority, (iv) filed an election
under Section 338(g) or Section 338(h)(10) of the Code (nor has a
deemed election under Section 338(e) of the Code occurred), except as
contemplated hereby, (v) made any payments, or been a party to an
agreement (including this Agreement) that under any circumstances
could obligate it to make payments that will not be deductible because
of Section 280G of the Code, or (vi) been a party to any tax
allocation or tax sharing agreement. The Company is not a "United
States real property holding company" within the meaning of Section
897 of the Code.
8
13
3.6. Accounts Receivable. All accounts receivable and all benefit plan
service fees earned but unbilled of Company reflected on the Recent Balance
Sheet, and all accounts receivable and all benefit plan service fees earned but
unbilled incurred in the normal course of business since the date thereof,
represent arm's length sales actually made in the ordinary course of business;
are collectible (net of the reserve shown on the Recent Balance Sheet for
doubtful accounts) in the ordinary course of business without the necessity of
commencing legal proceedings; are subject to no counterclaim or setoff; and are
not in dispute. Schedule 3.6 contains an aged schedule of accounts receivable
and a detailed schedule of all benefit plan service fees earned but unbilled
included in the Recent Balance Sheet.
3.7. Absence of Certain Changes. Except as and to the extent set forth in
Schedule 3.7, since the date of the Recent Balance Sheet there has not been:
3.7.(a) No Adverse Change. Any adverse change in the financial
condition, assets, liabilities, business, prospects or operations of
Company;
3.7.(b) No Damage. Any loss, damage or destruction, whether covered
by insurance or not, affecting the Company, its properties or the Company
Business;
3.7.(c) No Increase in Compensation. Any increase in the
compensation, salaries or wages payable or to become payable to any
employee or agent of Company (including, without limitation, any increase
or change pursuant to any bonus, pension, profit sharing, retirement or
other plan or commitment), or any bonus or other employee benefit granted,
made or accrued;
3.7.(d) No Labor Disputes. Any labor dispute or disturbance, other
than routine individual grievances which are not material to the business,
financial condition or results of operations of Company.
3.7.(e) No Commitments. Any commitment or transaction by Company
(including, without limitation, any borrowing or capital expenditure) other
than in the ordinary course of business consistent with past practice;
3.7.(f) No Dividends. Any declaration, setting aside, or payment of
any dividend or any other distribution in respect of Company's capital
stock; any redemption, purchase or other acquisition by Company of any
capital stock of Company, or any security relating thereto; or any other
payment to any shareholder of Company as such a shareholder;
3.7.(g) No Disposition of Property. Any sale, lease or other transfer
or disposition of any properties or assets of Company;
3.7.(h) No Indebtedness. Any indebtedness for borrowed money
incurred, assumed or guaranteed by Company;
9
14
3.7.(i) No Liens. Any mortgage, pledge, lien or encumbrance made on
any of the properties or assets of Company;
3.7.(j) No Amendment of Contracts. Any entering into, amendment or
termination by Company of any contract, or any waiver of material rights
thereunder, other than in the ordinary course of business;
3.7.(k) Loans and Advances. Any loan or advance (other than advances
to employees in the ordinary course of business for travel and
entertainment in accordance with past practice) to any person including,
but not limited to, any Affiliate (for purposes of this Agreement, the term
"Affiliate" shall mean and include: Shareholder, directors and officers of
Company; the spouse of any such person; any person who would be the heir or
descendant of any such person if he or she were not living; and any entity
in which any of the foregoing has a direct or indirect interest, except
through ownership of less than 5% of the outstanding shares of any entity
whose securities are listed on a national securities exchange or traded in
the national over-the-counter market);
3.7.(l) Credit. Any grant of credit to any customer or distributor on
terms or in amounts more favorable than those which have been extended to
such customer or distributor in the past, any other change in the terms of
any credit heretofore extended, or any other change of Company's policies
or practices with respect to the granting of credit; or
3.7.(m) No Unusual Events. Any other event or condition not in the
ordinary course of business of Company.
3.8. Absence of Undisclosed Liabilities. Except as and to the extent
specifically disclosed in the Recent Balance Sheet, or in Schedule 3.8, Company
does not have any liabilities, commitments or obligations (secured or
unsecured, and whether accrued, absolute, contingent, direct, indirect or
otherwise), other than commercial liabilities and obligations incurred since
the date of the Recent Balance Sheet in the ordinary course of business and
consistent with past practice and none of which has or will have a material
adverse effect on the business, financial condition or results of operations of
Company. Except as and to the extent described in the Recent Balance Sheet or
in Schedule 3.8, neither Company nor Shareholder has knowledge of any basis for
the assertion against Company of any liability and there are no circumstances,
conditions, happenings, events or arrangements, contractual or otherwise, which
may give rise to liabilities, except commercial liabilities and obligations
incurred in the ordinary course of Company's business and consistent with past
practice.
3.9. No Litigation. There is no action, suit, arbitration, proceeding,
investigation or inquiry, whether civil, criminal or administrative
("Litigation"), pending or, to Company's or Shareholder's knowledge, threatened
against Company, its directors (in such capacity), its business or any of its
assets, nor does Company or Shareholder know, or have grounds to know, of any
basis for any Litigation. Schedule 3.9 identifies all Litigation to which
Company or any of its directors (in such capacity) have been parties since
January 1,
10
15
1997. Except as set forth in Schedule 3.9, neither Company nor its business or
assets is subject to any Order of any Government Entity.
3.10. Compliance With Laws and Orders.
3.10.(a) Compliance. Except as set forth in Schedule 3.10.(a),
Company (including each and all of its operations, practices, properties
and assets) is in compliance with all applicable Laws and Orders,
including, without limitation, those applicable to discrimination in
employment, occupational safety and health, trade practices, competition
and pricing, product warranties, zoning, building and sanitation,
employment, retirement and labor relations, product advertising and the
Environmental Laws as hereinafter defined. Except as set forth in Schedule
3.10.(a), Company has not received notice of any violation or alleged
violation of, and is subject to no Liability for past or continuing
violation of, any Laws or Orders. All reports and returns required to be
filed by Company with any Government Entity have been filed, and were
accurate and complete when filed. Without limiting the generality of the
foregoing:
(i) The operation of Company's business as it is now conducted
does not, nor does any condition existing at any of the Facilities,
in any manner constitute a nuisance or other tortious interference
with the rights of any person or persons in such a manner as to give
rise to or constitute the grounds for a suit, action, claim or demand
by any such person or persons seeking compensation or damages or
seeking to restrain, enjoin or otherwise prohibit any aspect of the
conduct of such business or the manner in which it is now conducted.
(ii) Company has made all required payments to its unemployment
compensation reserve accounts with the appropriate governmental
departments of the states where it is required to maintain such
accounts, and each of such accounts has a positive balance.
(iii) During the past five (5) years, Company has not been
required to make any reports or filings under, and has not received
any reports or other correspondence from any agency or other
governmental body under or relating to, the federal Occupational
Safety and Health Act of 1970, as amended, or any other applicable
health and safety laws and regulations.
3.10.(b) Licenses and Permits. Company has all licenses, permits,
approvals, authorizations and consents of all Government Entities and all
certification organizations required for the conduct of the business (as
presently conducted and as proposed to be conducted) and operation of the
Facilities. All such licenses, permits, approvals, authorizations and
consents are described in Schedule 3.10.(b), are in full force and effect
and will not be affected or made subject to loss, limitation or any
obligation to reapply as a result of the
11
16
transactions contemplated hereby. Except as set forth in Schedule
3.10.(b), Company (including its operations, properties and assets) is
and has been in compliance with all such permits and licenses,
approvals, authorizations and consents.
3.10.(c) Environmental Matters. The applicable Laws relating to
pollution or protection of the environment, including Laws relating to
emissions, discharges, generation, storage, releases or threatened
releases of pollutants, contaminants, chemicals or industrial, toxic,
hazardous or petroleum or petroleum-based substances or wastes
("Waste") into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata)
or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Waste
including, without limitation, the Clean Water Act, the Clean Air Act,
the Resource Conservation and Recovery Act, the Toxic Substances
Control Act and the Comprehensive Environmental Response Compensation
Liability Act ("CERCLA"), as amended, and their state and local
counterparts are herein collectively referred to as the "Environmental
Laws". Without limiting the generality of the foregoing provisions of
this Section 3.10, Company is in full compliance with all limitations,
restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in the Environmental
Laws or contained in any regulations, code, plan, order, decree,
judgment, injunction, notice or demand letter issued, entered,
promulgated or approved thereunder. Except as set forth in Schedule
3.10.(c), there is no Litigation nor any demand, claim, hearing or
notice of violation pending or threatened against Company relating in
any way to the Environmental Laws or any Order issued, entered,
promulgated or approved thereunder. Except as set forth in Schedule
3.10.(c), there are no past or present (or, to the best of Company's
and the Shareholder's knowledge, future) events, conditions,
circumstances, activities, practices, incidents, actions, omissions or
plans which may interfere with or prevent compliance or continued
compliance with the Environmental Laws or with any Order issued,
entered, promulgated or approved thereunder, or which may give rise to
any liability, including, without limitation, liability under CERCLA
or similar state or local Laws, or otherwise form the basis of any
Litigation, hearing, notice of violation, study or investigation,
based on or related to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling, or the emission,
discharge, release or threatened release into the environment, of any
Waste.
3.11. Title to and Condition of Properties.
3.11.(a) Marketable Title. Company has good and marketable title
to all of Company's assets, business and properties, including,
without limitation, all such properties (tangible and intangible)
reflected in the Recent Balance Sheet, free and clear of all
mortgages, liens, (statutory or otherwise)
12
17
security interests, claims, pledges, licenses, equities, options,
conditional sales contracts, assessments, levies, easements,
covenants, reservations, restrictions, rights-of-way, exceptions,
limitations, charges or encumbrances of any nature whatsoever
(collectively, "Liens") except those described in Schedule 3.11 and,
in the case of real property, Liens for taxes not yet due or which are
being contested in good faith by appropriate proceedings (and which
have been sufficiently accrued or reserved against in the Recent
Balance Sheet), municipal and zoning ordinances and easements for
public utilities, none of which interfere with the use of the property
as currently utilized. Except as set forth in Schedule 3.11, none of
Company's assets, business or properties are subject to any
restrictions with respect to the transferability thereof; and the
Company's title thereto will not be affected in any way by the
transactions contemplated hereby.
3.11.(b) Condition. All property and assets owned or utilized by
Company are in good operating condition and repair, free from any
defects (except such minor defects as do not interfere with the use
thereof in the conduct of the normal operations of Company), have been
maintained consistent with the standards generally followed in the
industry and are sufficient to carry on the business of Company as
conducted during the preceding 12 months. All buildings, plants and
other structures owned or otherwise utilized by Company are in good
condition and repair and have no structural defects or defects
affecting the plumbing, electrical, sewerage, or heating, ventilating
or air conditioning systems.
3.11.(c) Real Property. Company does not own any real property.
The only real property used or occupied by Company (the "Real
Property") is leased from an unaffiliated third-party lessor, and
Schedule 3.11.(c) sets forth the material terms of such lease. To the
best of Company's and Shareholder's knowledge, there are now in full
force and effect duly issued certificates of occupancy permitting the
Real Property and improvements located thereon to be legally used and
occupied as the same are now constituted. To the best of the
Company's and the Shareholder's knowledge, all of the Real Property
has permanent rights of access to dedicated public highways. Neither
Company nor Shareholder has notice or knowledge of any (i) fact or
condition which would prohibit or adversely affect the ordinary rights
of access to and from the Real Property from and to the existing
highways and roads and/or (ii) pending or threatened restriction or
denial, governmental or otherwise, upon such ingress and egress.
Neither Company nor Shareholder has notice or knowledge of any (i)
planned or proposed increase in assessed valuations of any Real
Property, (ii) Order requiring repair, alteration, or correction of
any existing condition affecting any Real Property or the systems
or improvements thereat, (iii) condition or defect which could give
rise to an order of the sort referred to in "(ii)" above, (iv)
underground storage tanks, or any structural, mechanical, or other
defects of material significance affecting any Real Property or the
systems
13
18
or improvements thereat (including, but not limited to, inadequacy for
normal use of mechanical systems or disposal or water systems at or
serving the Real Property), or (v) work that has been done or labor or
materials that has or have been furnished to any Real Property during
the period of six (6) months immediately preceding the date of this
Agreement for which liens could be filed against any of the Real
Property.
3.11.(d) No Condemnation or Expropriation. Neither the whole nor
any portion of the property or any other assets of Company is subject
to any Order to be sold or is being condemned, expropriated or
otherwise taken by any Government Entity with or without payment of
compensation therefor, nor to the best of Company's and Shareholder's
knowledge has any such condemnation, expropriation or taking been
proposed.
3.12. Insurance. Set forth in Schedule 3.12 is a complete and accurate
list and description of all policies of fire, liability, errors and omissions,
electronic data processing, workers compensation, health and other forms of
insurance presently in effect with respect to the business and properties of
Company, true and correct copies of which have heretofore been delivered to
Buyer. Schedule 3.12 includes, without limitation, the carrier, the
description of coverage, the limits of coverage, retention or deductible
amounts, amount of annual premiums, retroactive date of coverage, date of
expiration and the date through which premiums have been paid with respect to
each such policy, and any pending claims in excess of $5,000. All such
policies are valid, outstanding and enforceable policies and provide insurance
coverage for the properties, assets and operations of Company, of the kinds, in
the amounts and against the risks customarily maintained by organizations
similarly situated; and no such policy (nor any previous policy) provides for
or is subject to any currently enforceable retroactive rate or premium
adjustment, loss sharing arrangement or other actual or contingent liability
arising wholly or partially out of events arising prior to the date hereof.
Schedule 3.12 indicates each policy as to which (a) the coverage limit has been
reached or (b) the total incurred losses to date equal 75% or more of the
coverage limit. No notice of cancellation or termination has been received
with respect to any such policy, and neither Company nor any Shareholder has
knowledge of any act or omission of Company which could result in cancellation
of any such policy prior to its scheduled expiration date. Company has not
been refused any insurance with respect to any aspect of the operations of the
business nor has its coverage been limited by any insurance carrier to which it
has applied for insurance or with which it has carried insurance during the
last three years. Company has duly and timely made all claims it has been
entitled to make under each policy of insurance. There is no claim by Company
pending under any such policies as to which coverage has been questioned,
denied or disputed by the underwriters of such policies, and neither Company
nor Shareholder knows of any basis for denial of any claim under any such
policy. Company has not received any written notice from or on behalf of any
insurance carrier issuing any such policy that insurance rates therefor will
hereafter be substantially increased (except to the extent that insurance rates
may be increased for all similarly situated risks) or that there will hereafter
be a cancellation or an increase in a deductible (or an increase in premiums in
order to maintain an existing deductible) or nonrenewal of any such policy.
Such policies are sufficient in all material respects for
14
19
compliance by Company with all requirements of law and with the requirements of
all material contracts to which Company is a party. All general liability
policies maintained by or for the benefit of Company since its inception have
been "occurrence" policies and not "claims made" policies (except for Company's
errors and omissions policies, which have been "claims made" and not
"occurrence" policies).
3.13. Contracts and Commitments.
3.13.(a) Real Property Leases. Except as set forth in Schedule
3.11.(c), Company has no leases of real property.
3.13.(b) Personal Property Leases. Except as set forth in
Schedule 3.13.(b), Company has no leases of personal property
involving consideration or other expenditure in excess of $5,000 or
involving performance over a period of more than three months.
3.13.(c) Purchase Commitments. Company has no purchase
commitments for inventory items or supplies that, together with
amounts on hand, constitute in excess of three months normal usage, or
which are at an excessive price.
3.13.(d) Sales Commitments. Except as set forth in Schedule
3.13.(d), Company has no sales or service contracts or commitments to
customers which aggregate in excess of $ 50,000 to any one customer
(or group of affiliated customers). Company has no sales contracts or
commitments except those made in the ordinary course of business, at
arm's length, and no such contracts or commitments are for a sales
price which would result in a loss to the Company.
3.13.(e) Contracts With Affiliates and Certain Others. Company
has no agreement, understanding, contract or commitment (written or
oral) with any Affiliate or any employee, agent, consultant,
distributor, dealer or franchisee that is not immediately cancelable
by Company without liability, penalty or premium of any nature or kind
whatsoever.
3.13.(f) Powers of Attorney. Except as set forth in Schedule
3.13(f), the Company has not given a power of attorney, which is
currently in effect, to any person, firm or corporation for any
purpose whatsoever.
3.13.(g) Collective Bargaining Agreements. Except as set forth
in Schedule 3.13.(g), Company is not a party to any collective
bargaining agreements with any unions, guilds, shop committees or
other collective bargaining groups. Copies of all such agreements
have heretofore been delivered to Buyer.
15
20
3.13.(h) Loan Agreements. Except as set forth in Schedule
3.13.(h), Company is not obligated under any loan agreement,
promissory note, letter of credit, or other evidence of indebtedness
as a signatory, guarantor or otherwise.
3.13.(i) Guarantees. Except as disclosed on Schedule 3.13.(i),
Company has not guaranteed the payment or performance of any person,
firm or corporation, agreed to indemnify any person or act as a
surety, or otherwise agreed to be contingently or secondarily liable
for the obligations of any person.
3.13.(j) Contracts Subject to Renegotiation. Company is not a
party to any contract with any governmental body which is subject to
renegotiation.
3.13.(k) Burdensome or Restrictive Agreements. Company is not a
party to nor is it bound by any agreement, deed, lease or other
instrument which is so burdensome as to materially affect or impair
the operation of Company. Without limiting the generality of the
foregoing, Company is not a party to nor is it bound by any agreement
requiring Company to assign any interest in any trade secret or
proprietary information, or prohibiting or restricting Company from
competing in any business or geographical area or soliciting customers
or otherwise restricting it from carrying on its business anywhere in
the world.
3.13.(l) Other Material Contracts. Company has no lease,
contract or commitment of any nature involving consideration or other
expenditure in excess of $ 25,000, or involving performance over a
period of more than three months, or which is otherwise individually
material to the operations of Company, except as explicitly described
in Schedule 3.13.(l).
3.13.(m) No Default. Company is not in default under any lease,
contract or commitment, nor has any event or omission occurred which
through the passage of time or the giving of notice, or both, would
constitute a default thereunder or cause the acceleration of any of
Company's obligations or result in the creation of any Lien on any of
the assets owned, used or occupied by Company. No third party is in
default under any lease, contract or commitment to which Company is a
party, nor has any event or omission occurred which, through the
passage of time or the giving of notice, or both, would constitute a
default thereunder or give rise to an automatic termination, or the
right of discretionary termination, thereof.
3.14. Labor Matters. Except as set forth in Schedule 3.14, within the
last five years Company has not experienced any labor disputes, union
organization attempts or any work stoppage due to labor disagreements in
connection with its business. Except to the extent set forth in Schedule 3.14,
(a) Company is in compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment and wages and
16
21
hours, and is not engaged in any unfair labor practice; (b) there is no unfair
labor practice charge or complaint against Company pending or threatened; (c)
there is no labor strike, dispute, request for representation, slowdown or
stoppage actually pending or threatened against or affecting Company nor any
secondary boycott with respect to products of Company; (d) no question
concerning representation has been raised or is threatened respecting the
employees of Company; (e) no grievance which might have a material adverse
effect on Company, nor any arbitration proceeding arising out of or under
collective bargaining agreements, is pending and no such claim therefor exists;
and (f) there are no administrative charges or court complaints against Company
concerning alleged employment discrimination or other employment related
matters pending or threatened before the U.S. Equal Employment Opportunity
Commission or any Government Entity.
3.15. Employee Benefit Plans.
3.15.(a) Disclosure. Schedule 3.15.(a) sets forth all pension,
thrift, savings, profit sharing, retirement, incentive bonus or other
bonus, medical, dental, life, accident insurance, benefit, employee
welfare, disability, group insurance, stock purchase, stock option,
stock appreciation, stock bonus, executive or deferred compensation,
hospitalization and other similar fringe or employee benefit plans,
programs and arrangements, and any employment or consulting contracts,
"golden parachutes," collective bargaining agreements, severance
agreements or plans, vacation and sick leave plans, programs,
arrangements and policies, including, without limitation, all
"employee benefit plans" (as defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), all
employee manuals, and all written or binding oral statements of
policies, practices or understandings relating to employment, which
are provided to, for the benefit of, or relate to, any persons
("Company Employees") employed by Company. The items described in the
foregoing sentence are hereinafter sometimes referred to collectively
as "Employee Plans/Agreements," and each individually as an "Employee
Plan/Agreement." True and correct copies of all the Employee
Plans/Agreements, including all amendments thereto, have heretofore
been provided to Buyer. Each of the Employee Plans/Agreements is
identified on Schedule 3.15.(a), to the extent applicable, as one or
more of the following: an "employee pension benefit plan" (as defined
in Section 3(2) of ERISA), a "defined benefit plan" (as defined in
Section 414 of the Code), an "employee welfare benefit plan" (as
defined in Section 3(1) of ERISA), and/or as a plan intended to be
qualified under Section 401 of the Code. No Employee Plan/Agreement
is a "multiemployer plan" (as defined in Section 4001 of ERISA), and
Company has never contributed nor been obligated to contribute to any
such multiemployer plan.
3.15.(b) Terminations, Proceedings, Penalties, etc. With respect
to each employee benefit plan (including, without limitation, the
Employee Plans/Agreements) that is subject to the provisions of Title
IV of ERISA and
17
22
with respect to which the Company or any of its assets may, directly
or indirectly, be subject to any Liability, contingent or otherwise,
or the imposition of any Lien (whether by reason of the complete or
partial termination of any such plan, the funded status of any such
plan, any "complete withdrawal" (as defined in Section 4203 of ERISA)
or "partial withdrawal" (as defined in Section 4205 of ERISA) by any
person from any such plan, or otherwise):
(i) no such plan has been terminated so as to subject,
directly or indirectly, any assets of Company to any liability,
contingent or otherwise, or the imposition of any lien under
Title IV of ERISA;
(ii) no proceeding has been initiated or threatened by any
person (including the Pension Benefit Guaranty Corporation
("PBGC")) to terminate any such plan;
(iii) no condition or event currently exists or currently is
expected to occur that could subject, directly or indirectly, any
assets of Company to any liability, contingent or otherwise, or
the imposition of any lien under Title IV of ERISA, whether to
the PBGC or to any other person or otherwise on account of the
termination of any such plan;
(iv) if any such plan were to be terminated as of the
Closing Date, no assets of Company would be subject, directly or
indirectly, to any liability, contingent or otherwise, or the
imposition of any lien under Title IV of ERISA;
(v) no "reportable event" (as defined in Section 4043 of
ERISA) has occurred with respect to any such plan;
(vi) no such plan which is subject to Section 302 of ERISA
or Section 412 of the Code has incurred any "accumulated funding
deficiency" (as defined in Section 302 of ERISA and Section 412
of the Code, respectively), whether or not waived; and
(vii) no such plan is a multiemployer plan or a plan
described in Section 4064 of ERISA.
3.15.(c) Prohibited Transactions, etc. There have been no
"prohibited transactions" within the meaning of Section 406 or 407 of
ERISA or Section 4975 of the Code for which a statutory or
administrative exemption does not exist with respect to any Employee
Plan/Agreement, and no event or omission has occurred in connection
with which the Company or any of its assets or any Employee
Plan/Agreement, directly or indirectly, could be subject to any
liability under ERISA, the Code or any other Law or Order applicable
to any Employee Plan/Agreement, or under any agreement, instrument,
Law or Order pursuant to or under which Company has agreed to
indemnify or is
18
23
required to indemnify any person against liability incurred under any
such Law or Order.
3.15.(d) Full Funding. The funds available under each Employee
Plan/Agreement which is intended to be a funded plan exceed the
amounts required to be paid, or which would be required to be paid if
such Employee Plan/Agreement were terminated, on account of rights
vested or accrued as of the Closing Date (using the actuarial methods
and assumptions then used by Company's actuaries in connection with
the funding of such Employee Plan/Agreement).
3.15.(e) Controlled Group; Affiliated Service Group; Leased
Employees. Company is not and never has been a member of a controlled
group of corporations as defined in Section 414(b) of the Code or in
common control with any unincorporated trade or business as determined
under Section 414(c) of the Code. Company is not and never has been a
member of an "affiliated service group" within the meaning of Section
414(m) of the Code. There are not and never have been any leased
employees within the meaning of Section 414(n) of the Code who perform
services for Company, and no individuals are expected to become leased
employees with the passage of time. Company has no liability, actual
or contingent, under Title IX of ERISA.
3.15.(f) Payments and Compliance. With respect to each Employee
Plan/Agreement, (i) all payments due from Company to date have been
made and all amounts properly accrued to date as liabilities of
Company which have not been paid have been properly recorded on the
books of Company and are reflected in the Recent Balance Sheet; (ii)
Company has complied with, and each such Employee Plan/Agreement
conforms in form and operation to, all applicable laws and
regulations, including but not limited to ERISA and the Code, in all
respects and all reports and information relating to such Employee
Plan/Agreement required to be filed with any governmental entity have
been timely filed; (iii) all reports and information relating to each
such Employee Plan/Agreement required to be disclosed or provided to
participants or their beneficiaries have been timely disclosed or
provided; (iv) each such Employee Plan/Agreement which is intended to
qualify under Section 401 of the Code has received a favorable
determination letter from the Internal Revenue Service with respect to
such qualification, its related trust has been determined to be exempt
from taxation under Section 501(a) of the Code, and nothing has
occurred since the date of such letter that has or is likely to
adversely affect such qualification or exemption; (v) there are no
actions, suits or claims pending (other than routine claims for
benefits) or threatened with respect to such Employee Plan/Agreement
or against the assets of such Employee Plan/Agreement; and (vi) no
Employee Plan/Agreement is a plan which is established and maintained
outside the United States primarily for the benefit of individuals
substantially all of whom are nonresident aliens.
19
24
3.15.(g) Post-Retirement Benefits. No Employee Plan/Agreement
provides benefits, including, without limitation, death or medical
benefits (whether or not insured) with respect to current or former
Company employees beyond their retirement or other termination of
service other than (i) coverage mandated by applicable law, (ii) death
or retirement benefits under any Employee Plan/Agreement that is an
employee pension benefit plan, (iii) deferred compensation benefits
accrued as liabilities on the books of Company (including the Recent
Balance Sheet), (iv) disability benefits under any Employee Plan/
Agreement that is an employee welfare benefit plan and which have been
fully provided for by insurance or otherwise or (v) benefits in the
nature of severance pay.
3.15.(h) No Triggering of Obligations. The consummation of the
transactions contemplated by this Agreement will not (i) entitle any
current or former employee of Company to severance pay, unemployment
compensation or any other payment, except as expressly provided in
this Agreement, (ii) accelerate the time of payment or vesting, or
increase the amount of compensation due to any such employee or former
employee or (iii) result in any prohibited transaction described in
Section 406 of ERISA or Section 4975 of the Code for which an
exemption is not available.
3.15.(i) Delivery of Documents. There has been delivered to
Buyer, with respect to each Employee Plan/Agreement:
(i) a copy of the annual report, if required under ERISA,
with respect to each such Employee Plan/Agreement for the last
two years;
(ii) a copy of the summary plan description, together with
each summary of material modifications, required under ERISA with
respect to such Employee Plan/Agreement, all material employee
communications relating to such Employee Plan/Agreement, and,
unless the Employee Plan/Agreement is embodied entirely in an
insurance policy to which Company is a party, a true and complete
copy of such Employee Plan/Agreement;
(iii) if the Employee Plan/Agreement is funded through a
trust or any third party funding vehicle (other than an insurance
policy), a copy of the trust or other funding agreement and the
latest financial statements thereof; and
(iv) the most recent determination letter received from the
Internal Revenue Service with respect to each Employee
Plan/Agreement that is intended to be a "qualified plan" under
Section 401 of the Code.
20
25
With respect to each Employee Plan/Agreement for which an annual report
has been filed and delivered to Buyer pursuant to clause (i) of this Section
3.15.(i), no material adverse change has occurred with respect to the matters
covered by the latest such annual report since the date thereof.
3.15.(j) Future Commitments. Company has no announced plan or legally
binding commitment to create any additional Employee Plans/Agreements or to
amend or modify any existing Employee Plan/Agreement.
3.16. Employment Compensation. Schedule 3.16 contains a true and correct
list of all employees to whom Company is paying compensation, including bonuses
and incentives, at an annual rate in excess of Ten Thousand Dollars ($10,000)
for services rendered or otherwise; and in the case of salaried employees such
list identifies the current annual rate of compensation for each employee, the
date of their last salary adjustment, the previous annual rate of compensation
for each employee, and any bonuses paid to each employee during the preceding
twelve months; and in the case of hourly or commission employees identifies
certain reasonable ranges of rates and the number of employees falling within
each such range.
3.17. Trade Rights. Schedule 3.17 lists all material Trade Rights (as
defined below), including (without limitation) all registered Trade Rights and
all Trade Rights for which federal, state or local applications have been
filed, in which Company now has any interest, specifying whether such Trade
Rights are owned, controlled, used or held (under license or otherwise) by
Company, and also indicating which of such Trade Rights are registered. All
Trade Rights shown as registered in Schedule 3.17 have been properly
registered, all pending registrations and applications have been properly made
and filed and all annuity, maintenance, renewal and other fees relating to
registrations or applications are current. In order to conduct the business of
Company, as such is currently being conducted or proposed to be conducted,
Company does not require any Trade Rights that it does not already have.
Company is not infringing and has not infringed any Trade Rights of another in
the operation of the business of Company, nor, to the best of Company's and
Shareholder's knowledge, is any other person infringing the Trade Rights of
Company. Company has not granted any license or made any assignment of any
Trade Right listed on Schedule 3.17, nor does Company pay any royalties or
other consideration for the right to use any Trade Rights of others. There is
no Litigation pending or, to the best of Company's and Shareholder's knowledge,
threatened to challenge Company's right, title and interest with respect to its
continued use and right to preclude others from using any Trade Rights of
Company. All Trade Rights of Company are valid, enforceable and in good
standing, and there are no equitable defenses to enforcement based on any act
or omission of Company. The consummation of the transactions contemplated
hereby will not alter or impair any Trade Rights owned or used by Company. As
used herein, the term "Trade Rights" shall mean and include: (i) all trademark
rights, business identifiers, trade dress, service marks, trade names and brand
names, all registrations thereof and applications therefor and all goodwill
associated with the foregoing; (ii) all copyrights, copyright registrations and
copyright applications, and
21
26
all other rights associated with the foregoing and the underlying works of
authorship; (iii) all patents and patent applications, and all international
proprietary rights associated therewith; (iv) all contracts or agreements
granting any right, title, license or privilege under the intellectual property
rights of any third party; (v) all inventions, mask works and mask work
registrations, know-how, discoveries, improvements, designs, trade secrets,
shop and royalty rights, employee covenants and agreements respecting
intellectual property and non-competition and all other types of intellectual
property; and (vi) all claims for infringement or breach of any of the
foregoing.
3.18. Major Customers and Suppliers.
3.18.(a) Major Customers. Schedule 3.18.(a) contains a list of the
twenty (20) largest customers of Company for each of the two (2) most
recent fiscal years (determined on the basis of the total dollar amount of
net sales) showing the total dollar amount of net sales to each such
customer during each such year. Neither Company nor Shareholder has any
knowledge or information of any facts indicating, nor any other reason to
believe, that any of the customers listed on Schedule 3.18.(a) will not
continue to be customers of the business of Company after the Closing at
substantially the same level of purchases as heretofore.
3.18.(b) Major Suppliers. Schedule 3.18.(b) contains a list of the
three (3) largest suppliers to Company for each of the two (2) most recent
fiscal years (determined on the basis of the total dollar amount of
purchases) showing the total dollar amount of purchases from each such
supplier during each such year. Neither Company nor Shareholder has any
knowledge or information of any facts indicating, nor any other reason to
believe, that any of the suppliers listed on Schedule 3.18.(b) will not
continue to be suppliers to the business of Company after the Closing and
will not continue to supply the business with substantially the same
quantity and quality of goods at competitive prices.
3.18.(c) Sales Representatives. Schedule 3.18.(c) contains a list of
all sales representatives of Company, together with true, correct and
complete copies of all sales representative contracts and policy
statements, and a description of all substantial modifications or
exceptions.
3.19. Service Warranty and Liability. Schedule 3.19 contains a true,
correct and complete copy of Company's standard warranty or warranties for
sales of Services (as defined below) and, except as stated therein, there are
no warranties, commitments or obligations with respect to the provision of such
Services. Schedule 3.19 sets forth the estimated aggregate annual cost to
Company of meeting warranty or liability obligations or commitments for
customers for each of the five (5) preceding fiscal years. Schedule 3.19
contains a description of all liability claims and similar Litigation relating
to services rendered, which are presently pending or which to Company's or
Shareholder's knowledge are threatened, or which have been asserted or
commenced against Company within the last five
22
27
(5) years, in which a party thereto either requests injunctive relief or
alleges damages (whether or not covered by insurance). The provision of such
services by the Company meets and complies with all governmental laws and
regulations currently in effect. As used in this Section 3.19, the term
"Services" means any and all services currently or at any time previously
rendered, provided or sold by Company, or by any predecessor of Company under
any brand name or xxxx under which services are or have been rendered, provided
or sold by Company.
3.20. Bank Accounts. Schedule 3.20 sets forth the names and locations of
all banks, trust companies, savings and loan associations and other financial
institutions at which the Company maintains a safe deposit box, lock box or
checking, savings, custodial or other account of any nature, the type and
number of each such account and the signatories therefore, a description of any
compensating balance arrangements, and the names of all persons authorized to
draw thereon, make withdrawals therefrom or have access thereto.
3.21. Affiliates' Relationships to Company.
3.21.(a) Contracts With Affiliates. All leases, contracts, agreements
or other arrangements between Company and any Affiliate are described on
Schedule 3.21.(a).
3.21.(b) No Adverse Interests. No Affiliate has any direct or
indirect interest in (i) any entity which does business with Company or is
competitive with Company's business, or (ii) any property, asset or right
which is used by Company in the conduct of its business.
3.21.(c) Obligations. All obligations of any Affiliate to Company,
and all obligations of Company to any Affiliate, are listed on Schedule
3.21.(c).
3.22. Assets Necessary to Business. Company presently has and at the
Closing will have good, valid and marketable title to all property and assets,
tangible and intangible, and all leases, licenses and other agreements,
necessary to permit Buyer to carry on the business of Company as presently
conducted.
3.23. No Brokers or Finders. Except for Crestar Securities Corporation
and TMark Associates, Ltd., neither Shareholder nor Company or any of its
directors, officers, employees or agents have retained, employed or used any
broker or finder in connection with the transaction provided for herein or in
connection with the negotiation thereof.
3.24. Year 2000 Compliance. Except as set forth in Schedule 3.24, to the
best of Company's and Shareholder's knowledge: (a) the computer source codes,
programs and other software of the Company (including machine readable code,
printed listings of code, databases, documentation and related property and
information of Company used or under development for use in the Company
Business) (collectively, "Software") accurately determines chronological dates
and accurately performs all calculations, data manipulations, sorting and
transmission of date data regardless of whether the date represents or
references
23
28
different centuries (For example, when the actual date changes from 12/31/1999
to 1/1/2000, the Software will accurately determine that 1/1/2000 is the new
date and determine that an individual born in 1948 is 52 years old and not -48
[i.e., 00-48 = -48], or otherwise incorrectly perform the age calculation); (b)
the Software provides that all date related user interface functionalities and
data fields permit the entry of a four digit year (i.e., the years 1965, 2065
and 3065 could all be entered by the user without the need of a manual
override) and such date data will result in accurate calculations, data
manipulations, sorting and transmission of all data, including the date data;
(c) the entry of a date equal to or greater than 01/01/2000 into the Software
will not affect any calculation that produces or uses time spans such that the
results of the calculation are incorrect (i.e., such as an interest
calculation); and (d) the integrity of calculations performed utilizing the
Software will not be affected by date data for dates on or after 01/02/2000,
and calculations using previously generated data (on or before 12/31/1999) will
also maintain calculation integrity.
3.25. Systems Performance. To the best of Company's and Shareholder's
knowledge, the Software and related systems owned or used by Company perform in
accordance with the written specifications previously delivered to Buyer and
the Software and related system components are capable of interconnecting
and/or interfacing with each other, and they deliver the functionality needed
to meet the information systems requirements of the Company Business as they
are presently conducted. Shareholder will not cause any unplanned interruption
of the operations of, or accessibility to, the Software or related systems (or
any system component) through any device, method or means including, without
limitation, the use of any "virus," "lockup," "time bomb" or "key lock" device
or program, or disabling code, which has the potential or capability of causing
any unplanned interruption of the operations of, or accessibility of, the
Software or related systems (or any system component) to Buyer, or any user
authorized by Buyer, or which could alter, destroy or inhibit the use of the
Software or related systems (or any system component), or the data contained
therein (collectively, "Disabling Devices"), which could block access to or
prevent the use of the Software or any system (or system component) by Buyer or
any authorized user. Shareholder has not placed, nor is Shareholder aware of,
any Disabling Device on any Software or system component owned or used by
Company. There is no new version, update or release of any Software currently
being developed.
3.26. Software Ownership; Non Infringement. Except as set forth in
Schedule 3.26 hereto:
(1) Company owns all right, title and interest in and to the
Software;
(2) Company has developed the Software entirely through its own
efforts for its own account, and the Software is free and clear of all
Liens of any nature whatsoever;
(3) The Software does not infringe any patent, copyright or trade
secret of any third party;
24
29
(4) The Software is fully eligible for protection under the
applicable copyright law and has not been forfeited to the public domain;
(5) The source code and system specification of the Software have
been maintained in confidence;
(6) All personnel, including employees, agents, consultants and
contractors, who have participated in the concept and the development of
the Software either (a) have been party to a fore-hire relationship with
Company that has accorded the Company full, effective and exclusive
ownership of all tangible and intangible property thereby arising with
respect to the Software, or (b) have executed appropriate instruments and
assigns in favor of the Company as assignees and have conveyed to the
Company full, effective and exclusive ownership of all tangible and
intangible property thereby arising with respect to the Software;
(7) Company has duly obtained the right and license to use, copy,
modify and distribute the software components contained in the Software,
the Software contains no other software components in which any third
party may claim superior or joint ownership, and no Software is a
derivative work of any software programs not owned by their entirety by
Company;
(8) Company has not granted any rights in the Software to any third
party; and
(9) The Software contains certain software components duly licensed
to Company for inclusion in the Software, and the Software contains no
other software components in which any third party may claim superior or
joint ownership, nor is any Software a derivative work of any other
software programs not owned in their entirety by Company.
3.27. Disclosure. No representation or warranty by Company and/or the
Shareholder in this Agreement, nor any statement, certificate, schedule,
document or exhibit hereto furnished or to be furnished by or on behalf of
Company or Shareholder pursuant to this Agreement or in connection with
transactions contemplated hereby, contains or shall contain any untrue statement
of material fact or omits or shall omit a material fact necessary to make the
statements contained therein not misleading. All statements and information
contained in any certificate, instrument, Disclosure Schedule or document
delivered by or on behalf of Company and/or Shareholder shall be deemed
representations and warranties by the Company and the Shareholder.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer makes the following representations and warranties to the
Shareholder, each of which was true and correct on the Effective Date (other
than Section 4.2), remains true as of the Closing Date, shall be unaffected by
any investigation hereafter made by Shareholder or
25
30
any notice to Shareholder, and shall survive the Closing of the transactions
provided for herein.
4.1. Corporate.
4.1.(a) Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State
of Florida.
4.1.(b) Corporate Power. Buyer has all requisite corporate
power to enter into this Agreement and the other documents and
instruments to be executed and delivered by Buyer and to carry out
the transactions contemplated hereby and thereby.
4.2. Authority. The execution and delivery of this Agreement and the
other documents and instruments to be executed and delivered by Buyer pursuant
hereto and the consummation of the transactions contemplated hereby and thereby
have been duly authorized by the Board of Directors of Buyer. No other
corporate act or proceeding on the part of Buyer or its shareholders is
necessary to authorize this Agreement or the other documents and instruments to
be executed and delivered by Buyer pursuant hereto or the consummation of the
transactions contemplated hereby and thereby. This Agreement constitutes, and
when executed and delivered, the other documents and instruments to be executed
and delivered by Buyer pursuant hereto will constitute, valid and binding
agreements of Buyer, enforceable in accordance with their respective terms,
except as such may be limited by bankruptcy, insolvency, reorganization or
other laws affecting creditors' rights generally, and by general equitable
principles.
4.3. No Brokers or Finders. Except for Broadview Associates LLC, neither
Buyer nor any of its directors, officers, employees or agents has retained,
employed or used any broker or finder in connection with the transaction
provided for herein or in connection with the negotiation thereof.
4.4. Disclosure. No representation or warranty by Buyer in this
Agreement, nor any statement, certificate, schedule, document or exhibit hereto
furnished or to be furnished by or on behalf of Buyer pursuant to this
Agreement or in connection with transactions contemplated hereby, contains or
shall contain any untrue statement of material fact or omits or shall omit a
material fact necessary to make the statements contained therein not
misleading.
4.5. Investment Intent. The Shares are being acquired by Buyer for
investment only and not with the view to resale or other distribution.
4.6. 1934 Act Registration. Buyer has a class of securities registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended.
26
31
5. COVENANTS
5.1. Employment and Noncompetition Agreement. Contemporaneously with the
execution of this Agreement, Shareholder shall execute and deliver to Company
an Employment and Noncompetition Agreement, substantially in the form of
Exhibit A hereto.
5.2. Noncompetition; Confidentiality. As an inducement to Buyer to
execute this Agreement and complete the transactions contemplated hereby, and
in order to preserve the goodwill associated with the business of Company being
acquired pursuant to this Agreement, and in addition to and not in limitation
of any covenants contained in any agreement executed and delivered pursuant to
Section 5.1 hereof, Shareholder hereby covenants and agrees as follows:
5.2.(a) Covenant Not to Compete. For a period of three (3)
years from the Closing Date, Shareholder will not directly or
indirectly:
(i) engage in, continue in or carry on any business
which competes with Company or the Company Business or is
substantially similar thereto, including owning or
controlling any financial interest in any corporation,
partnership, firm or other form of business organization
which is so engaged;
(ii) consult with, advise or assist in any way, whether
or not for consideration, any corporation, partnership, firm
or other business organization which is now or becomes a
competitor of Company or Buyer (or any of its subsidiaries)
in any aspect with respect to the Company Business,
including, but not limited to, advertising or otherwise
endorsing the products of any such competitor; soliciting
customers or otherwise serving as an intermediary for any
such competitor; loaning money or rendering any other form of
financial assistance to or engaging in any form of business
transaction on other than an arm's length basis with any such
competitor;
(iii) offer employment to an employee of Company or the
Company Business, without the prior written consent of Buyer;
or
(iv) engage in any practice the purpose of which is to
evade the provisions of this covenant not to compete or to
commit any act which adversely affects the Company or the
Company Business;
provided, however, that the foregoing shall not prohibit the
ownership of securities of corporations which are listed on a
national securities exchange or traded in the national
over-the-counter market in an amount which shall not exceed 5% of
the outstanding shares of any such corporation. The parties agree
that the geographic scope of this covenant not to compete shall
extent to and cover the following states: California, Oregon,
Washington, Colorado and
27
32
Arizona. The parties agree that a Buyer may sell, assign or
otherwise transfer this covenant not to compete, in whole or in
part, to any subsidiary of Buyer or to any person, corporation,
firm or entity that purchases all or part of the business of the
Company. In the event a court of competent jurisdiction determines
that the provisions of this covenant not to compete are excessively
broad as to duration, geographical scope or activity, it is
expressly agreed that this covenant not to compete shall be
construed so that the remaining provisions shall not be affected,
but shall remain in full force and effect, and any such over broad
provisions shall be deemed, without further action on the part of
any person, to be modified, amended and/or limited but only to the
extent necessary to render the same valid and enforceable in such
jurisdiction.
5.2.(b) Covenant of Confidentiality. Shareholder shall not at
any time subsequent to the Closing, except as explicitly requested
by Buyer, (i) use for any purpose, (ii) disclose to any person, or
(iii) keep or make copies of documents, tapes, discs or programs
containing, any confidential information concerning Company. For
purposes hereof, "confidential information" shall mean and include,
without limitation, all Trade Rights in which Company has an
interest, all customer lists and customer information, and all
other information concerning Company's processes, apparatus,
equipment, packaging, products, marketing and distribution methods,
not previously disclosed to the public directly by Company.
5.2.(c) Equitable Relief for Violations. Shareholder agrees
that the provisions and restrictions contained in this Section 5.2
are necessary to protect the legitimate continuing interests of
Buyer in acquiring the Shares, and that any violation or breach of
these provisions will result in irreparable injury to Buyer for
which a remedy at law would be inadequate and that, in addition to
any relief at law which may be available to Buyer for such
violation or breach and regardless of any other provision contained
in this Agreement, Buyer shall be entitled to injunctive and other
equitable relief as a court may grant after considering the intent
of this Section 5.2.
5.3. General Release. Contemporaneously with the execution of this
Agreement, Shareholder shall deliver a general release to Buyer, in
substantially the form attached hereto as Exhibit B.
6. INDEMNIFICATION
6.1. By Shareholder. Subject to the terms and conditions of this Article
6, Shareholder hereby agrees to indemnify, defend and hold harmless Buyer, its
directors, officers, employees and controlled and controlling persons
(hereinafter "Buyer's Affiliates") and the Company from and against all Claims
asserted against, resulting to, imposed upon, or incurred by Buyer, Buyer's
Affiliates or the Company, directly or indirectly, by reason of, arising out of
or resulting from (a) the inaccuracy or breach of any representation or
warranty
28
33
of the Shareholder or Company contained in or made pursuant to this Agreement,
(b) the breach of any covenant of any Shareholder or the Company contained in
this Agreement, (c) the litigation matters referred to in Schedule 3.9, or (d)
the conduct of the Company Business or operations of the Company prior to the
Closing (other than Claims for liabilities to the extent the amounts thereof
are specifically reflected in the Recent Balance Sheet). As used in this
Article 6, the term "Claim" shall include (i) all debts, liabilities and
obligations; (ii) all losses, damages (including, without limitation,
consequential damages), judgments, awards, settlements, costs and expenses
(including, without limitation, interest (including prejudgment interest in any
litigated matter), penalties, court costs and attorneys fees and expenses); and
(iii) all demands, claims, suits, actions, costs of investigation, causes of
action, proceedings and assessments, whether or not ultimately determined to be
valid.
6.2. By Buyer. Subject to the terms and conditions of this Article 6,
Buyer hereby agrees to indemnify, defend and hold harmless Shareholder from and
against all Claims asserted against, resulting to, imposed upon or incurred by
any such person, directly or indirectly, by reason of or resulting from (a) the
inaccuracy or breach of any representation or warranty of Buyer contained in or
made pursuant to this Agreement, or (b) the breach of any covenant of Buyer
contained in this Agreement.
6.3. Indemnification of Third-Party Claims. The obligations and
liabilities of any party to indemnify any other under this Article 6 with
respect to Claims relating to third parties shall be subject to the following
terms and conditions:
6.3.(a) Notice and Defense. The party or parties to be
indemnified (whether one or more, the "Indemnified Party") will
give the party from whom indemnification is sought (the
"Indemnifying Party") prompt written notice of any such Claim, and
the Indemnifying Party will undertake the defense thereof by
representatives chosen by it. Failure to give such notice shall
not affect the Indemnifying Party's duty or obligations under this
Article 6, except to the extent the Indemnifying Party is
prejudiced thereby. So long as the Indemnifying Party is defending
any such Claim actively and in good faith, the Indemnified Party
shall not settle such Claim. The Indemnified Party shall make
available to the Indemnifying Party or its representatives all
records and other materials required by them and in the possession
or under the control of the Indemnified Party, for the use of the
Indemnifying Party and its representatives in defending any such
Claim, and shall in other respects give reasonable cooperation in
such defense.
6.3.(b) Failure to Defend. If the Indemnifying Party, within
a reasonable time after notice of any such Claim, fails to defend
such Claim actively and in good faith, the Indemnified Party will
(upon further notice) have the right to undertake the defense,
compromise or settlement of such Claim or consent to the entry of a
judgment with respect to such Claim, on behalf of and for the
account and risk of the Indemnifying Party, and the Indemnifying
Party
29
34
shall thereafter have no right to challenge the Indemnified
Party's defense, compromise, settlement or consent to judgment
therein.
6.3.(c) Indemnified Party's Rights. Anything in this Section
6.3 to the contrary notwithstanding, (i) if there is a reasonable
probability that a Claim may materially and adversely affect the
Indemnified Party other than as a result of money damages or other
money payments, the Indemnified Party shall have the right to
defend, compromise or settle such Claim, and (ii) the Indemnifying
Party shall not, without the written consent of the Indemnified
Party, settle or compromise any Claim or consent to the entry of
any judgment which does not include as an unconditional term
thereof the giving by the claimant or the plaintiff to the
Indemnified Party of a release from all Liability in respect of
such Claim.
6.4. Payment. The Indemnifying Party shall promptly pay the Indemnified
Party any amount due under this Article 6, which payment may be accomplished in
whole or in part, at the option of the Indemnified Party, by the Indemnified
Party setting off any amount owed to the Indemnifying Party by the Indemnified
Party. To the extent set-off is made by an Indemnified Party in satisfaction
or partial satisfaction of an indemnity obligation under this Article 6 that is
disputed by the Indemnifying Party, upon a subsequent determination by final
judgment not subject to appeal that all or a portion of such indemnity
obligation was not owed to the Indemnified Party, the Indemnified Party shall
pay the Indemnifying Party the amount which was set-off and not owed together
with interest from the date of set-off until the date of such payment at an
annual rate equal to the average annual rate in effect as of the date of the
set-off, on those three maturities of United States Treasury obligations having
a remaining life, as of such date, closest to the period from the date of the
set-off to the date of such judgment. Upon judgment, determination, settlement
or compromise of any third party Claim, the Indemnifying Party shall pay
promptly on behalf of the Indemnified Party, and/or to the Indemnified Party in
reimbursement of any amount theretofore required to be paid by it, the amount
so determined by judgment, determination, settlement or compromise and all
other Claims of the Indemnified Party with respect thereto, unless in the case
of a judgment an appeal is made from the judgment. If the Indemnifying Party
desires to appeal from an adverse judgment, then the Indemnifying Party shall
post and pay the cost of the security or bond to stay execution of the judgment
pending appeal. Upon the payment in full by the Indemnifying Party of such
amounts, the Indemnifying Party shall succeed to the rights of such Indemnified
Party, to the extent not waived in settlement, against the third party who made
such third party Claim.
6.5. Indemnification for Environmental Matters. Without limiting the
generality of the foregoing, Shareholder agrees to indemnify, reimburse, hold
harmless and defend Buyer, Buyer's affiliates and Company for, from, and
against all Claims asserted against, imposed on, or incurred by any such
person, directly or indirectly, in connection with any pollution, threat to the
environment, or exposure to, or manufacture, processing, distribution, use,
treatment, generation, transport or handling, disposal, emission, discharge,
storage or release of Waste that (A) is related in any way to Company's or any
previous
30
35
owner's or operator's ownership, operation or occupancy of the business,
properties and assets owned or used by Company, and (B) in whole or in part
occurred, existed, arose out of conditions or circumstances that existed, or
was caused on or before the Closing Date.
6.6. Limitations on Indemnification. Except for any willful or knowing
breach or misrepresentation, as to which claims may be brought without
limitation as to time or amount:
6.6.(a) Time Limitation. No claim or action shall be brought
under this Article 6 for breach of a representation or warranty after
the lapse of two (2) years following the Closing. Regardless of the
foregoing, however, or any other provision of this Agreement:
(i) There shall be no time limitation on claims on actions
brought for breach of any representation or warranty made by
Shareholder or Company in or pursuant to Sections 3.1 and 3.2,
and Shareholder hereby waives all applicable statutory limitation
periods with respect thereto.
(ii) Any claim or action brought for breach of any
representation or warranty made by Shareholder with respect to
tax or ERISA matters may be brought at any time until the
underlying tax or ERISA obligation is barred by the applicable
period of limitation under federal and state laws relating
thereto (as such period may be extended by waiver).
(iii) Any claim made by a party hereunder by delivering
written notice of the claim to the Indemnifying Party or Parties,
by filing a suit or action in a court of competent jurisdiction
or a court reasonably believed to be of competent jurisdiction or
by a demand for arbitration in accordance with Article 9 hereof
for breach of a representation or warranty prior to the
termination of the survival period for such claim shall be
preserved despite the subsequent termination of such survival
period.
(iv) If any act, omission, disclosure or failure to
disclosure shall form the basis for a claim for breach of more
than one representation or warranty, and such claims have
different periods of survival hereunder, the termination of the
survival period of one claim shall not affect a party's right to
make a claim based on the breach of representation or warranty
still surviving.
6.6.(b) Amount Limitation. The aggregate amount of the
indemnification obligations of Shareholder pursuant to this Article 6
shall not exceed Four Million Dollars ($4,000,000); provided, however,
that the aggregate indemnification obligation shall be the Purchase
Price on claims or
31
36
actions brought for breach of any representation or warranty made by
the Shareholder in or pursuant to Sections 3.1, 3.2, 3.5 and 3.15.
6.7. No Waiver. The closing of the transactions contemplated by this
Agreement shall not constitute a waiver by any party of its rights to
indemnification hereunder, regardless of whether the party seeking
indemnification has knowledge of the breach, violation or failure of condition
constituting the basis of the Claim at or before the Closing, and regardless of
whether such breach, violation or failure is deemed to be "material" for
purposes of Section 9.2.
7. CLOSING
The closing of this transaction ("xxx Xxxxxxx") shall take place
contemporaneously with the execution and delivery of this agreement at the
offices of Xxxxx & Xxxxxxx in San Francisco, located at Xxx Xxxxxxxx Xxxxx,
Xxxxx 000, at 7:00 A.M. on October 30, 1998, or at such other hour and place as
the parties hereto shall agree upon in writing. The date hereof is referred to
in this Agreement as the "Closing Date". Unless otherwise indicated, the
transactions contemplated hereby shall be deemed for all purposes to be
effective as of October 1, 1998, which date shall be referred to herein as the
"Effective Date."
7.1. Documents to be Delivered by Company and Shareholder. At the
Closing, Company and Shareholder shall deliver to Buyer the following documents,
in each case duly executed or otherwise in proper form:
7.1.(a) Stock Certificate(s). Stock certificates representing
the Shares, duly endorsed for transfer or with duly executed stock
powers attached, in either case as of the Effective Date.
7.1.(b) Opinion of Counsel. A written opinion of, counsel to
Company and Shareholder, dated as of the Closing Date, addressed to
Buyer, substantially in the form of Exhibit C hereto.
7.1.(c) Consents and Approvals. Executed originals of all
approvals, consents and waivers that are required to effect the
transactions contemplated hereby.
7.1.(d) Estoppel Certificates. An estoppel certificate or status
letter from the landlord under each lease of Real Property, which
estoppel certificate or status letter will certify: (i) the lease is
valid and in full force and effect; (ii) the amounts payable by
Company under the lease and the date to which the same have been paid;
(iii) whether there are, to the knowledge of said landlord, any
defaults thereunder, and, if so, specifying the nature thereof; and
(iv) a statement that the transactions contemplated by this Agreement
will not constitute a default under the lease.
32
37
7.1.(e) Employment and Noncompetition Agreement. The Employment
and Noncompetition Agreement referred to in Section 5.1, duly executed
by the persons referred to in such Section.
7.1.(f) Certified Resolutions. Certified copies of the
resolutions of the Board of Directors and the Shareholder of Company,
authorizing and approving this Agreement and the consummation of the
transactions contemplated by this Agreement.
7.1.(g) Articles; By-Laws. A copy of the By-Laws of Company
certified by the secretary of Company, and a copy of the Articles of
Incorporation of Company certified by the Secretary of State of the
state of incorporation of Company.
7.1.(h) Incumbency Certificate. Incumbency certificates relating
to each person executing (as a corporate officer or otherwise on
behalf of another person) any document executed and delivered to Buyer
pursuant to the terms hereof.
7.1.(i) General Release. The General Release referred to in
Section 5.3, duly executed by the person referred to in such Section.
7.1.(j) Resignations. The resignation of Xxxxxx X. Xxxxxxx as
President, Chief Financial Officer/Treasurer and a Director, and the
resignation of Xxxxxx X. Xxxxxxx as Secretary and a Director, of the
Company, effective as of the Closing and in form satisfactory to
Buyer's counsel.
7.1.(k) Affidavit. An affidavit from Company in form and
substance satisfactory to Buyer, to the effect that Company is not a
"foreign person," "foreign corporation," "foreign partnership,"
"foreign trust" or "foreign estate" under Section 1445 of the Code,
and containing all such other information as is required to comply
with the requirements of such Section.
7.1.(l) Other Documents. All other documents, instruments or
writings required to be delivered to Buyer at the Closing pursuant to
this Agreement and such other certificates of authority and documents
as Buyer may reasonably request.
7.2. Documents to be Delivered by Buyer. At the Closing, Buyer shall
deliver to Shareholder the following documents, in each case duly executed or
otherwise in proper form:
7.2.(a) Cash Purchase Price. To Shareholder, a certified or bank
cashier's check (or wire transfer) as required by Section 2.2(a)
hereof.
33
38
7.2.(b) Opinion of Counsel. A written opinion of Xxxxx &
Lardner, counsel to Buyer, dated as of the Closing Date, addressed to
Company, in substantially the form of Exhibit D hereto.
7.2.(c) Certified Resolutions. A certified copy of the
resolutions of the Board of Directors of Buyer authorizing and
approving this Agreement and the consummation of the transactions
contemplated by this Agreement.
7.2.(d) Incumbency Certificate. Incumbency certificates relating
to each person executing any document executed and delivered to
Company or Shareholder by Buyer pursuant to the terms hereof.
7.2.(e) Other Documents. All other documents, instruments or
writings required to be delivered to Company at the Closing pursuant
to this Agreement and such other certificates of authority and
documents as Company may reasonably request.
8. TERMINATION
This Agreement may be terminated without further liability of any party at
any time prior to the Closing: (a) by mutual written agreement of Buyer and
Shareholder; or (b) by either Buyer or Shareholder (i) if the Closing shall not
have occurred by 11:59 p.m. Eastern time on the date hereof, provided the
terminating party has not, through breach of a representation, warranty or
covenant, prevented the Closing from occurring at or before such time, or (ii)
if any Government Entity shall have issued an Order enjoining or otherwise
prohibiting the consummation of the transactions contemplated by this
Agreement.
9. RESOLUTION OF DISPUTES
9.1. Arbitration.
9.1.(a) Any dispute, controversy or claim arising out of or
relating to this Agreement or any contract or agreement entered into
pursuant hereto or the performance by the parties of its or their
terms shall be settled by binding arbitration held in Tampa, Florida
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association then in effect, except as specifically
otherwise provided in this Article 9. Notwithstanding the foregoing,
Buyer may, in its discretion, apply to a court of competent
jurisdiction for equitable relief from any violation or threatened
violation of the covenants of Shareholder under Section 5.2 of this
Agreement, or any covenants not to compete contained in any Employment
and Noncompetition Agreement delivered pursuant to Section 5.1 hereof.
9.1.(b) No party shall be required to submit to arbitration
hereunder unless all persons who are not parties to this Agreement,
but who are necessary parties to a complete resolution of the
controversy, submit to the
34
39
arbitration process on the same terms as the parties hereto. Without
limiting the generality of the foregoing, no claim under Article 6 for
the indemnification of a third-party claim shall be subject to
arbitration under this Article 9 unless the third party bringing such
claim against the indemnitee shall agree in writing to the application
of this Article 9 to the resolution of such claim.
9.2. Arbitrators. If the matter in controversy (exclusive of attorney
fees and expenses) shall appear, as at the time of the demand for arbitration,
to exceed $250,000, then the panel to be appointed shall consist of three
neutral arbitrators; otherwise, one neutral arbitrator.
9.3. Procedures; No Appeal. The arbitrator(s) shall allow such discovery
as the arbitrator(s) determine appropriate under the circumstances and shall
resolve the dispute as expeditiously as practicable, and if reasonably
practicable, within 120 days after the selection of the arbitrator(s). The
arbitrator(s) shall give the parties written notice of the decision, with the
reasons therefor set out, and shall have 30 days thereafter to reconsider and
modify such decision if any party so requests within 10 days after the
decision. Thereafter, the decision of the arbitrator(s) shall be final,
binding, and nonappealable with respect to all persons, including (without
limitation) persons who have failed or refused to participate in the
arbitration process.
9.4. Authority. The arbitrator(s) shall have authority to award relief
under legal or equitable principles, including interim or preliminary relief,
and to allocate responsibility for the costs of the arbitration and to award
recovery of attorneys fees and expenses in such manner as is determined to be
appropriate by the arbitrator(s).
9.5. Entry of Judgment. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having in personam and subject matter
jurisdiction. Buyer and each Shareholder hereby submit to the in personam
jurisdiction of the Federal and State courts in Florida, for the purpose of
confirming any such award and entering judgment thereon.
9.6. Confidentiality. All proceedings under this Article 9 and all
evidence given or discovered pursuant hereto, shall be maintained
in confidence by all parties.
9.7. Continued Performance. The fact that the dispute resolution
procedures specified in this Article 9 shall have been or may be invoked shall
not excuse any party from performing its obligations under this Agreement and
during the pendency of any such procedure all parties shall continue to perform
their respective obligations in good faith, subject to any rights to terminate
this Agreement that may be available to any party and to the right of setoff
provided in Section 6.4 hereof.
9.8. Tolling. All applicable statutes of limitation shall be tolled while
the procedures specified in this Article 9 are pending. The parties will take
such action, if any, required to effectuate such tolling.
35
40
10. MISCELLANEOUS
10.1. Disclosure Schedule. The Schedules have been compiled in a bound
volume (the "Disclosure Schedule"), executed by Shareholder and dated and
delivered to Buyer on the date of this Agreement. Information set forth in the
Disclosure Schedule specifically refers to the article and section of this
Agreement to which such information is responsive and such information shall
not be deemed to have been disclosed with respect to any other article or
section of this Agreement or for any other purpose. The Disclosure Schedule
includes a table of contents and/or index to all of the information and
documents contained therein. The Disclosure Schedule shall not vary, change or
alter the language of the representations and warranties contained in this
Agreement and, to the extent the language in the Disclosure Schedule does not
conform in every respect to the language of such representations and
warranties, such language in the Disclosure Schedule shall be disregarded and
be of no force or effect.
10.2. Further Assurance. From time to time, at Buyer's request and
without further consideration, Company and Shareholder will execute and deliver
to Buyer such documents and take such other action as Buyer may reasonably
request in order to consummate more effectively the transactions contemplated
hereby.
10.3. Disclosures and Announcements. Announcements concerning the
transactions provided for in this Agreement by Buyer, Company or Shareholder
shall be subject to the approval of the other parties in all essential
respects, except that approval of the Shareholder or Company shall not be
required as to any statements and other information which Buyer may submit to
the Securities and Exchange Commission, the Nasdaq Stock Market ("Nasdaq") or
Buyer's stockholders or be required to make pursuant to any rule or regulation
of the Securities and Exchange Commission or Nasdaq, or otherwise required by
law.
10.4. Assignment; Parties in Interest.
10.4.(a) Assignment. Except as expressly provided herein, the
rights and obligations of a party hereunder may not be assigned,
transferred or encumbered without the prior written consent of the
other parties. Notwithstanding the foregoing, Buyer may, without
consent of any other party, (i) merge Company with and into Buyer
and/or any subsidiary of Buyer, or (ii) cause one or more subsidiaries
of Buyer to carry out all or part of the transactions contemplated
hereby; provided, however, that Buyer shall, nevertheless, remain
liable for all of its obligations, and those of any such subsidiary,
to Shareholder hereunder.
10.4.(b) Parties in Interest. This Agreement shall be binding
upon, inure to the benefit of, and be enforceable by the respective
successors and permitted assigns of the parties hereto. Nothing
contained herein shall be deemed to confer upon any other person any
right or remedy under or by reason of this Agreement.
36
41
10.5. Law Governing Agreement. This Agreement may not be modified or
terminated orally, and shall be construed and interpreted according to the
internal laws of the State of Florida, excluding any choice of law rules that
may direct the application of the laws of another jurisdiction.
10.6. Amendment and Modification. Buyer and Shareholder may amend, modify
and supplement this Agreement in such manner as may be agreed upon in writing
between Buyer and Shareholder.
10.7. Notice. All notices, requests, demands and other communications
hereunder shall be given in writing and shall be: (a) personally delivered;
(b) sent by telecopier, facsimile transmission or other electronic means of
transmitting written documents; or (c) sent to the parties at their respective
addresses indicated herein by registered or certified U.S. mail, return receipt
requested and postage prepaid, or by private overnight mail courier service.
The respective addresses to be used for all such notices, demands or requests
are as follows:
(a) If to Buyer, to:
ABR Information Services, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxx Xxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. XxxXxxxxxx
Chairman of the Board,
President and Chief Executive Officer
Facsimile: (000) 000-0000
(with a copy to)
Xxxxx & Lardner
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
or to such other person or address as Buyer shall furnish to Shareholder in
writing.
(b) If to Shareholder, to:
Xx. Xxxxxx X. Xxxxxxx
c/o Western Pension Service Corporation
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
(with a copy to)
37
42
Christian & Xxxxxx, L.L.P.
000 Xxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other person or address as Shareholder shall furnish to Buyer in
writing.
(c) If to Company, to:
Western Pension Service Corporation
c/o ABR Information Services, Inc.
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxx Xxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. XxxXxxxxxx
Chairman of the Board, President and
Chief Executive Officer
Facsimile: (000) 000-0000
(with a copy to)
Xxxxx & Lardner
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Any notice to Company given after Closing shall also be given in the same
manner to Buyer.
If personally delivered, such communication shall be deemed delivered upon
actual receipt; if electronically transmitted pursuant to this paragraph, such
communication shall be deemed delivered the next business day after
transmission (and sender shall bear the burden of proof of delivery); if sent
by overnight courier pursuant to this paragraph, such communication shall be
deemed delivered upon receipt; and if sent by U.S. mail pursuant to this
paragraph, such communication shall be deemed delivered as of the date of
delivery indicated on the receipt issued by the relevant postal service, or, if
the addressee fails or refuses to accept delivery, as of the date of such
failure or refusal. Any party to this Agreement may change its address for the
purposes of this Agreement by giving notice thereof in accordance with this
Section.
10.8. Expenses.
10.8.(a) Brokerage. Except as to (i) Broadview Associates LLC,
which shall be compensated by Buyer, and (ii) Crestar Securities
Corporation and TMark Associates, Ltd., which shall be compensated by
Shareholder, Shareholder and Buyer each represent and warrant to each
other that there is no
38
43
broker involved or in any way connected with the transfer provided for
herein on their behalf respectively (and Shareholder represents and
warrants that there is no broker involved on behalf of Company) and
each agrees to hold the other harmless from and against all other
claims for brokerage commissions or finder's fees in connection with
the execution of this Agreement or the transactions provided for
herein.
10.8.(b) Expenses to be Paid by Shareholder. Shareholder
(individually, and not through the Company) shall pay, and shall
indemnify, defend and hold Buyer and Company harmless from and
against, each of the following:
(i) Transfer Taxes. Any sales, use, excise, transfer or
other similar tax imposed with respect to the transactions
provided for in this Agreement, and any interest or penalties
related thereto.
(ii) Professional Fees. All fees and expenses, including
accounting and other professional fees, incurred in connection
with or relating to the preparation and provision of the
financial statements of the Company as set forth in Section 3.4
above.
10.8.(c) Other. Except as otherwise provided herein, each of the
parties shall bear its own expenses and the expenses of its counsel
and other agents in connection with the transactions contemplated
hereby.
10.8.(d) Costs of Litigation or Arbitration. The parties agree
that (subject to the discretion, in an arbitration proceeding, of the
arbitrator as set forth in Section 10.4) the prevailing party in any
action brought with respect to or to enforce any right or remedy under
this Agreement shall be entitled to recover from the other party or
parties all reasonable costs and expenses of any nature whatsoever
incurred by the prevailing party in connection with such action,
including without limitation attorneys' fees and prejudgment interest.
10.9. Entire Agreement. This instrument embodies the entire agreement
between the parties hereto with respect to the transactions contemplated
herein, and there have been and are no agreements, representations or
warranties between the parties other than those set forth or provided for
herein.
10.10. Counterparts; Facsimile Signatures. This Agreement may be executed
in one or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument. This Agreement
and the Ancillary Instruments may be effective upon the execution and delivery
by any party of facsimile copies of signature pages hereto and thereto duly
executed by such party; provided, however, that any party delivering a
facsimile signature page covenants and agrees to deliver promptly after the
date hereto two (2) original copies to the other parties hereto.
39
44
10.11. Headings. The headings in this Agreement are inserted for
convenience only and shall not constitute a part hereof.
10.12. Glossary of Terms. The following sets forth the location of
certain definitions of capitalized terms defined in the body of this Agreement:
"Act" - Section 3.26
"Affiliate" - Section 3.7.(k)
"Ancillary Instruments" - Section 3.2.(a)
"Buyer's Affiliates" - Section 6.1
"CERCLA" - Section 3.10.(c)
"Claim" - Section 6.1
"Closing" - Preamble to Article 9
"Closing Date" - Section 7
"Code" - Section 3.5.(e)
"Company Employees" - Section 3.15.(a)
"Contingent Payment" - Section 2.1
"Disclosure Schedule" - Article 10
"Effective Date" - Section 7
"Employee Plans/Agreement(s)" - Section 3.15.(a)
"Environmental Laws" - Section 3.10.(c)
"ERISA" - Section 3.15.(a)
"Facilities" - Second Recital
"Government Entities" - Section 3.3
"Indemnified Party" - Section 6.3.(a)
"Indemnifying Party" - Section 6.3.(a)
"Laws" - Section 3.3
"Lien" - Section 3.11.(a)
"Litigation" - Section 3.9
"Orders" - Section 3.3
"PBGC" - Section 3.15.(b)(ii)
"Purchase Price" - Section 2.1
"Real Property" - Section 3.11.(c)
"Recent Balance Sheet" - Section 3.4
"Services" - Section 3.19
"Settlement Date" - Section 2.2.(c)
"Shares" - First Recital
"Trade Rights" - Section 3.17
"Waste" - Section 3.10.(c)
Where any group or category of items or matters is defined collectively in the
plural number, any item or matter within such definition may be referred to
using such defined term in the singular number.
40
45
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
BUYER:
ABR INFORMATION SERVICES, INC.,
a Florida corporation
/S/ Xxxxxx X. Xxxxxxx
By:_______________________________
Senior Vice President
Title: _____________________________
COMPANY:
WESTERN PENSION SERVICE CORPORATION,
a California corporation
/s/ Xxxxxx X. Xxxxxxx
By:_______________________________
Xxxxxx X. Jocelyn
President
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxxxx
__________________________________
Xxxxxx X. Xxxxxxx, Individually
