1
EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
BETWEEN
BLUESUIT, INC.,
AND
STOCKWALK GROUP, INC.
DATED FEBRUARY 26, 2001
Exhibit 10.1-1
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
-----------
Section 1.1 Agreement...................................................................... 1
Section 1.2 Amended and Restated Registration Rights Agreement............................. 1
Section 1.3 Asset Purchase................................................................. 2
Section 1.4 BLUESUIT....................................................................... 2
Section 1.5 BLUESUIT Common Stock.......................................................... 2
Section 1.6 BLUESUIT Preferred Stock....................................................... 2
Section 1.7 Business....................................................................... 2
Section 1.8 Closing........................................................................ 2
Section 1.9 Deferred Payments.............................................................. 2
Section 1.10 ERISA.......................................................................... 2
Section 1.11 Escrow......................................................................... 2
Section 1.12 Escrow Agent................................................................... 2
Section 1.13 Escrow Agreement............................................................... 2
Section 1.14 GMACIS Agreement............................................................... 2
Section 1.15 Governmental Authorizations.................................................... 2
Section 1.16 Intellectual Property.......................................................... 2
Section 1.17 Knowledge of BLUESUIT.......................................................... 3
Section 1.18 Knowledge of STOCKWALK......................................................... 3
Section 1.19 Material Adverse Effect........................................................ 3
Section 1.20 OBS............................................................................ 3
Section 1.21 OBS Common Stock............................................................... 3
Section 1.22 Person......................................................................... 3
Section 1.23 Purchased Assets............................................................... 3
Section 1.24 Shareholders Agreement......................................................... 3
Section 1.25 Shares......................................................................... 3
Section 1.26 Software....................................................................... 3
Section 1.27 STOCKWALK...................................................................... 3
Section 1.28 STOCKWALK Taxpayers............................................................ 3
Section 1.29 Survival Period................................................................ 4
Section 1.30 Transition Services Agreement.................................................. 4
ARTICLE 2
THE ASSET PURCHASE
------------------
Section 2.1 The Asset Purchase............................................................. 4
Section 2.2 Closing........................................................................ 4
EXHIBIT 10.1-2
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ARTICLE 3
CONSIDERATION, ESCROW AND LIQUIDATED DAMAGES
--------------------------------------------
Section 3.1 Consideration for OBS Common Stock............................................. 4
Section 3.2 Escrow......................................................................... 5
Section 3.3 Liquidated Damages............................................................. 5
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF STOCKWALK
-------------------------------------------
Section 4.1 Organization................................................................... 6
Section 4.2 Capitalization................................................................. 6
Section 4.3 Subsidiaries and Affiliates.................................................... 6
Section 4.4 Authority Relative to this Agreement........................................... 6
Section 4.5 Non-Contravention; Approvals and Consents...................................... 6
Section 4.6 Financial Statements; Net Capital.............................................. 7
Section 4.7 Absence of Certain Events...................................................... 7
Section 4.8 Litigation..................................................................... 7
Section 4.9 Employee Benefit Plans......................................................... 8
Section 4.10 Tax Matters.................................................................... 8
Section 4.11 Purchased Assets............................................................... 9
Section 4.12 Real Property.................................................................. 9
Section 4.13 Compliance with Applicable Laws................................................ 9
Section 4.14 Absence of Undisclosed Liabilities............................................. 9
Section 4.15 Intellectual Property.......................................................... 9
Section 4.16 Software and Information Systems............................................... 10
Section 4.17 Contracts...................................................................... 10
Section 4.18 Books and Records.............................................................. 10
Section 4.19 Employees...................................................................... 10
Section 4.20 Insurance...................................................................... 11
Section 4.21 Intercompany Indebtedness...................................................... 11
Section 4.22 Restrictions on Shares......................................................... 11
Section 4.23 Broker's or Finder's Fees...................................................... 12
Section 4.24 Disclosure..................................................................... 12
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BLUESUIT
------------------------------------------
Section 5.1 Organization................................................................... 13
Section 5.2 Capitalization................................................................. 13
Section 5.3 Authority Relative to this Agreement........................................... 13
Section 5.4 Non-Contravention; Approvals and Consents...................................... 13
Section 5.5 Financial Statements........................................................... 14
EXHIBIT 10.1-3
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Section 5.6 Absence of Certain Events...................................................... 14
Section 5.7 Litigation..................................................................... 14
Section 5.8 Compliance with Applicable Laws................................................ 15
Section 5.9 Absence of Undisclosed Liabilities............................................. 15
Section 5.10 Broker's or Finder's Fees...................................................... 15
Section 5.11 Disclosure..................................................................... 15
ARTICLE 6
COVENANTS
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Section 6.1 Conduct of Business of OBS..................................................... 15
Section 6.2 Access to Information.......................................................... 17
Section 6.3 Best Efforts................................................................... 17
Section 6.4 Transfer of Contracts.......................................................... 17
Section 6.5 Consents....................................................................... 17
Section 6.6 Public Announcements........................................................... 17
Section 6.7 GMACIS Agreement............................................................... 17
Section 6.8 Covenant Not to Compete........................................................ 18
Section 6.9 NASD Warrants.................................................................. 18
ARTICLE 7
CONDITIONS PRECEDENT TO CONSUMMATION OF THE ASSET PURCHASE
----------------------------------------------------------
Section 7.1 Conditions Precedent to Each Party's Obligation to Effect the
Asset Purchase................................................................. 18
Section 7.2 Conditions Precedent to Obligations of BLUESUIT ............................... 18
Section 7.3 Conditions Precedent to Obligations of STOCKWALK............................... 20
ARTICLE 8
INDEMNIFICATION
---------------
Section 8.1 Indemnification of BLUESUIT ................................................... 21
Section 8.2 Indemnification of STOCKWALK................................................... 22
Section 8.3 Indemnification Claims Minimum................................................. 22
Section 8.4 Survival of Representations, Warranties and Covenants.......................... 22
Section 8.5 Indemnification Procedure...................................................... 22
ARTICLE 9
TERMINATION: AMENDMENT; WAIVER
------------------------------
Section 9.1 Termination.................................................................... 23
Section 9.2 Effect of Termination.......................................................... 23
Section 9.3 Amendment...................................................................... 24
EXHIBIT 10.1-4
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Section 9.4 Extension; Waiver.............................................................. 24
ARTICLE 10
MISCELLANEOUS
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Section 10.1 Expenses....................................................................... 24
Section 10.2 Entire Agreement; Assignment................................................... 24
Section 10.3 Notices........................................................................ 24
Section 10.4 Governing Law.................................................................. 25
Section 10.5 Descriptive Headings........................................................... 25
Section 10.6 Parties in Interest............................................................ 25
Section 10.7 Counterparts................................................................... 25
Section 10.8 Specific Performance........................................................... 25
Section 10.9 Severability................................................................... 25
Section 10.10 Disclosure Schedules........................................................... 26
Section 10.11 Non-Solicitation of Employees.................................................. 26
EXHIBIT 10.1-5
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EXHIBITS
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Exhibit A Amended and Restated Registration Rights Agreement
Exhibit B Transition Services Agreement
Exhibit C Escrow Agreement
Exhibit D Opinion of Xxxxxxx, Street and Deinard, P.A. on behalf of STOCKWALK
Exhibit E Amended and Restated Shareholders Agreement
Exhibit F Opinion of Ungaretti & Xxxxxx on behalf of BLUESUIT
Exhibit G GMACIS Agreement
Exhibit H Estoppel Certificate
Exhibit I STOCKWALK Secretary's Certificate
Exhibit J STOCKWALK Officer's Certificate
Exhibit K BLUESUIT Secretary's Certificate
Exhibit L BLUESUIT Officer's Certificate
Exhibit M Exceptions to Covenant Not to Compete
SCHEDULES
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Schedule 1.3 OBS Stock
Schedule 2.1 Purchased Assets
Schedule 4.3 Absence of Subsidiaries and Affiliates
Schedule 4.5 Consents
Schedule 4.7 Certain Events
Schedule 4.8 Litigation
Schedule 4.9 Benefit Plans
Schedule 4.10 Tax Matters
Schedule 4.13 Compliance with Applicable Laws
Schedule 4.14 Undisclosed Liabilities
Schedule 4.15 Intellectual Property
Schedule 4.16 Software
Schedule 4.17 Contracts
Schedule 4.19 Employees
Schedule 4.20 Insurance
Schedule 4.23 Broker's or Finder's Fees
Schedule 5.2 BLUESUIT Capitalization
Schedule 5.6 Certain Events
Schedule 5.7 Litigation
Schedule 5.8 Compliance with Applicable Laws
Schedule 5.9 Undisclosed Liabilities
Schedule 6.8 Contemplated Business of OBS
EXHIBIT 10.1-6
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated February 26,
2001, is made and entered into by and between BLUESUIT, INC., an Illinois
corporation ("BLUESUIT") and STOCKWALK GROUP, INC., a Minnesota corporation
("STOCKWALK").
W I T N E S S E T H:
WHEREAS, STOCKWALK owns all of the issued and outstanding capital stock
of ONLINE BROKERAGE SOLUTIONS, INC., a Minnesota corporation ("OBS"), which
provides both customized and xxxx-label (a site typically produced by or on
behalf of OBS for a reseller pursuant to which non-customized online brokerage
trading sites are resold to its institutional clients, such as banks, credit
unions, or other financial institutions which can be modified with limited
effort) brokerage services to financial institutions, affinity groups and
Internet portals, which are marketed either directly to financial institutions
or through providers of online financial services. (the "Business"); and
WHEREAS, BLUESUIT, through its wholly-owned subsidiary BLUESUIT
SECURITIES, INC. ("BLUESUIT SECURITIES"), is engaged in a business similar to
the Business and wishes to purchase from STOCKWALK and STOCKWALK wishes to sell
to BLUESUIT all of the outstanding capital stock of OBS, together with certain
assets of STOCKWALK used by OBS in the Business; and
WHEREAS, the respective Boards of Directors of BLUESUIT and STOCKWALK
have approved the purchase and sale of such capital stock and assets, upon the
terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants, agreements and conditions set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.1 AGREEMENT. "Agreement" shall mean this Asset Purchase
Agreement together with the Exhibits and Schedules attached hereto, as amended
from time to time in accordance with the terms hereof.
Section 1.2 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT.
"Amended and Restated Registration Rights Agreement" shall mean the agreement in
the form of Exhibit A hereto granting STOCKWALK certain registration rights with
respect to the Shares (as defined below).
EXHIBIT 10.1-7
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Section 1.3 ASSET PURCHASE. "Asset Purchase" shall mean the purchase by
BLUESUIT of (i) the shares of OBS Common Stock described on Schedule 1.3 hereto
(the "OBS Shares"); and (ii) the assets of STOCKWALK listed on Schedule 2.1
hereto (the "Purchased Assets").
Section 1.4 BLUESUIT. "BLUESUIT" shall mean BLUESUIT, INC., an Illinois
corporation.
Section 1.5 BLUESUIT COMMON STOCK. "BLUESUIT Common Stock" shall mean
the common stock, without par value, of BLUESUIT.
Section 1.6 BLUESUIT PREFERRED STOCK. "BLUESUIT Preferred Stock" shall
mean the Series A Convertible Preferred Stock, without par value, of BLUESUIT.
Section 1.7 BUSINESS. "Business" shall have the meaning ascribed to it
in the first recital above.
Section 1.8 CLOSING. "Closing" shall have the meaning ascribed to it in
Section 2.2 hereof.
Section 1.9 DEFERRED PAYMENTS. "Deferred Payments" shall have the
meaning ascribed to it in Section 3.1 hereof.
Section 1.10 ERISA. "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended.
Section 1.11 ESCROW. "Escrow" shall have the meaning ascribed to it in
Section 3.2 hereof.
Section 1.12 ESCROW AGENT. "Escrow Agent" shall have the meaning
ascribed to it in Section 3.2 hereof.
Section 1.13 ESCROW AGREEMENT. "Escrow Agreement" shall have the
meaning ascribed to it in Section 3.2 hereof.
Section 1.14 GMACIS AGREEMENT. "GMACIS Agreement" shall have the
meaning ascribed to it in Section 3.2(b)(iii) hereof.
Section 1.15 GOVERNMENTAL AUTHORIZATIONS. "Governmental Authorizations"
shall mean all approvals, concessions, consents, franchises, licenses, permits,
plans, registrations and other authorizations of each applicable governmental
and self regulatory authority.
Section 1.16 INTELLECTUAL PROPERTY. "Intellectual Property" shall have
the meaning ascribed to it in Section 4.15 hereof.
EXHIBIT 10.1-8
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Section 1.17 KNOWLEDGE OF BLUESUIT. "Knowledge of BLUESUIT" shall mean
that any of the directors or officers of BLUESUIT (i) is actually aware of a
particular fact, facts or other matters or (ii) should reasonably be expected to
be aware, after due inquiry, of a particular fact, facts or other matters by
reason of his duties as a director or officer thereof.
Section 1.18 KNOWLEDGE OF STOCKWALK. "Knowledge of STOCKWALK" shall
mean that any of the directors or officers of each of STOCKWALK and OBS (i) is
actually aware of a particular fact, facts, or other matters or (ii) should
reasonably be expected to be aware, after due inquiry, of a particular fact,
facts or other matters by reason of his duties as a director or officer thereof.
Section 1.19 MATERIAL ADVERSE EFFECT. "Material Adverse Effect" shall
mean, with respect to any Person, any event, fact, condition, occurrence or
effect, which is materially adverse to the business, properties, assets,
liabilities, capitalization, stockholders' equity, financial condition,
operations, Governmental Authorizations or results of operations of such Person,
considered as a whole.
Section 1.20 OBS. "OBS" shall mean Online Brokerage Solutions, Inc., a
Minnesota corporation.
Section 1.21 OBS COMMON STOCK. "OBS Common Stock" shall mean the common
stock, par value $.10 per share, of OBS.
Section 1.22 PERSON. "Person" shall mean and include an individual, a
partnership, a joint venture, a corporation or trust, an unincorporated
organization or other entity, a group or a government or other department or
agency thereof.
Section 1.23 PURCHASED ASSETS. "Purchased Assets" shall have the
meaning ascribed to it in Section 1.3 hereof.
Section 1.24 SHAREHOLDERS AGREEMENT. "Shareholders Agreement" shall
mean that Amended and Restated Shareholders Agreement among the shareholders of
BLUESUIT attached as Exhibit E hereto.
Section 1.25 SHARES. "Shares" shall have the meaning ascribed to it in
Section 3.1(b) hereof.
Section 1.26 SOFTWARE. "Software" shall have meaning ascribed to it in
Section 4.16 hereof.
Section 1.27 STOCKWALK. "STOCKWALK" shall mean STOCKWALK GROUP, INC., a
Minnesota corporation.
Section 1.28 STOCKWALK TAXPAYERS. "STOCKWALK Taxpayers" shall have the
meaning ascribed to it in Section 4.10 hereof.
EXHIBIT 10.1-9
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Section 1.29 SURVIVAL PERIOD. "Survival Period" shall have the meaning
ascribed to it in Section 8.4 hereof.
Section 1.30 TRANSITION SERVICES AGREEMENT. "Transition Services
Agreement" shall mean the agreement in the form of Exhibit B hereto pursuant to
which, among other things, STOCKWALK and certain of its affiliates shall provide
transitional services to BLUESUIT and OBS relating to the conduct of the
Business by OBS following the Closing Date for the term of such agreement.
ARTICLE 2
THE ASSET PURCHASE
Section 2.1. THE ASSET PURCHASE. Subject to and in accordance with the
terms and conditions of this Agreement, on the Closing Date (as defined below),
BLUESUIT shall purchase from STOCKWALK and STOCKWALK shall sell to BLUESUIT all
of the OBS Shares and the Purchased Assets.
Section 2.2. CLOSING. Unless this Agreement is terminated and the
transactions herein contemplated have been abandoned pursuant to Article 9, and
subject to the satisfaction or waiver (where applicable) of the conditions set
forth in Article 7, the closing of the Asset Purchase (the "Closing") will take
place at the offices of Ungaretti & Xxxxxx, 0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 at 10:00 a.m., local time, on February 26, 2001 or such
other date as the parties shall mutually agree in writing (the "Closing Date").
ARTICLE 3
CONSIDERATION, ESCROW AND LIQUIDATED DAMAGES
Section 3.1 CONSIDERATION FOR OBS COMMON STOCK AND PURCHASED ASSETS.
BLUESUIT will purchase all of the OBS Shares and the Purchased Assets from
STOCKWALK in return for the following consideration:
(a) Cash. BLUESUIT will make a payment of cash to STOCKWALK in the
amount of $2,000,000 (the "Cash"). The Cash will be deposited into
Escrow upon execution of this Agreement and released to STOCKWALK as
follows:
(i) a payment in the amount of $1,800,000 will be made at the
Closing; and
(ii) a payment in the amount of $200,000 will be made after
the Transition Period (as defined in the Transition Services
Agreement) in accordance with the terms of the Escrow Agreement.
(b) Preferred Stock. BLUESUIT will issue shares of BLUESUIT
Preferred Stock (the "Shares"), valued at $6.00 per share, to STOCKWALK
as follows:
EXHIBIT 10.1-10
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(i) 300,000 Shares, valued at $1,800,000, will be issued to
STOCKWALK at the Closing;
(ii) 33,334 Shares, valued at $200,004, will be issued to
STOCKWALK concurrently with the cash payment described in Section
3.1(a)(ii) above; and
(iii) 83,333 Shares, valued at $499,998, will be issued to
STOCKWALK upon the execution of an agreement between OBS and GMAC
Investment Services or any other related or affiliated entity
("GMACIS") to provide brokerage services to GMACIS on
substantially similar terms as those set forth in the draft
agreement attached hereto as Exhibit G ("GMACIS Agreement"),
provided that such execution occurs within six (6) months of the
Closing Date (assuming that OBS works in good faith to have such
agreement executed on or before such date).
BLUESUIT agrees that STOCKWALK shall have the registration rights with
respect to the Shares as set forth in the Amended and Restated Registration
Rights Agreement. The Cash payment described in Section 3.1(a)(ii) above and the
Shares described in Sections 3.1(b)(ii) and (iii) above are collectively
referred to as the "Deferred Payments".
Section 3.2 ESCROW. Concurrently with the execution of this Agreement,
the parties will execute an escrow agreement in the form of Exhibit C hereto
(the "Escrow Agreement") with Associated Bank Minnesota, as escrow agent (the
"Escrow Agent"), pursuant to which BLUESUIT will deposit with the Escrow Agent
the sum of $2,000,000 (the "Escrow") to be distributed as provided therein.
Section 3.3 LIQUIDATED DAMAGES. If the Closing does not occur on or
before February 26, 2001 for any reason other than the non-fulfillment of the
conditions precedent to the obligations of BLUESUIT set forth in Section 7.1 or
7.2, and STOCKWALK elects to terminate this Agreement pursuant to Section
9.1(b), STOCKWALK will automatically be entitled to, as its sole remedy, a
payment from the Escrow in the sum of $200,000 as liquidated damages. The
parties hereto agree that such liquidated damages are fair and reasonable in
light of the circumstances.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKWALK
As an inducement to enter into this Agreement, STOCKWALK represents and
warrants to BLUESUIT as follows:
Section 4.1 ORGANIZATION. Each of STOCKWALK and OBS is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Minnesota and
EXHIBIT 10.1-11
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each has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as it is now being conducted.
Section 4.2 CAPITALIZATION. OBS's authorized equity capitalization
consists of 250,000 shares of OBS Common Stock, of which 31,500 shares of OBS
Common Stock are issued and outstanding and are owned, beneficially and of
record, solely by STOCKWALK. All issued and outstanding shares of OBS Common
Stock (a) have been duly authorized and validly issued, and (b) are fully paid
and non-assessable. There are no outstanding options, warrants, subscriptions,
preemptive rights or other rights to purchase or acquire any capital stock of
OBS, and there are no contracts, commitments, understandings, arrangements or
restrictions by which OBS is bound to sell or issue any shares of its capital
stock or any such options, warrants or rights.
Section 4.3 SUBSIDIARIES AND AFFILIATES. Except as set forth on
Schedule 4.3, OBS does not own any capital stock or other equity securities of
any other corporation and does not have any other type of ownership interest in
any other corporation, partnership, joint venture or other business organization
or entity.
Section 4.4 AUTHORITY RELATIVE TO THIS AGREEMENT. The execution,
delivery and performance of this Agreement and of all of the other documents and
instruments required hereby by STOCKWALK and OBS are within the corporate power
of STOCKWALK and OBS. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the Boards of Directors of STOCKWALK and OBS and by STOCKWALK as the
shareholder of OBS, and no other corporate proceedings on the part of STOCKWALK
or OBS are necessary to authorize this Agreement or to consummate the
transactions contemplated herein. This Agreement and all of the other documents
and instruments required hereby have been or will be duly and validly executed
and delivered by STOCKWALK and OBS and constitute or will constitute valid and
binding agreements of STOCKWALK and OBS, enforceable against them in accordance
with their respective terms, except to the extent that the enforcement hereof
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally, and
(b) general principles of equity, regardless of whether enforceability is
considered in a proceeding in equity or at law.
Section 4.5 NON-CONTRAVENTION; APPROVALS AND CONSENTS. Except for
filings required under Rule 1017 of the National Association of Securities
Dealers, Inc. (the "NASD"), and except as set forth on Schedule 4.5 hereto, no
filing or registration with, and no permit, authorization, consent or approval
of, and no notice to any public body or authority is necessary or required in
connection with the execution and delivery of this Agreement by STOCKWALK or for
the consummation by STOCKWALK or STOCKWALK on behalf of OBS of the transactions
contemplated by this Agreement. Assuming that all filings, registrations,
permits, authorizations, consents and approvals contemplated by the immediately
preceding sentence have been duly made or obtained, neither the execution,
delivery and performance of this Agreement nor the consummation of the
transactions contemplated hereby by STOCKWALK or STOCKWALK on behalf of OBS
will, except as set forth on Schedule 4.5, (a) conflict with or result in any
breach of any provision of the articles of incorporation or by-laws of STOCKWALK
or OBS, (b) result in a violation or breach of, or constitute (with or without
due
EXHIBIT 10.1-12
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notice or lapse of time or both) a default (or give rise to any right of
termination, cancellation or acceleration) under, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, license, contract,
agreement or other instrument or obligation to which STOCKWALK or OBS is a party
or by which either of them or any of their properties or assets may be bound, or
(c) violate any order, writ, injunction, decree, statute, rule or regulation
applicable to STOCKWALK or OBS, or any of their properties or assets except, in
the case of subsections (b) or (c) above, for violations, breaches or defaults
that would not in the aggregate have a Material Adverse Effect on the business,
operations or financial condition of STOCKWALK or OBS and that will not prevent
or delay the consummation of the transactions contemplated hereby.
Section 4.6 FINANCIAL STATEMENTS; NET CAPITAL. OBS has delivered to
BLUESUIT copies of its FOCUS reports under Section 17a-1 of the Securities
Exchange Act of 1934, as amended, for the fiscal quarters ended March 31, June
30, September 30 and December 31, 2000 (collectively, the "FOCUS Reports"). The
financial statements included in the FOCUS Reports fairly present the financial
position and results of operations of OBS as of the dates thereof and for the
periods then ended. The minimum net capital required to be maintained by OBS
under Securities and Exchange Commission Rule 15c3-1 is $50,000 (exclusive of
any early warning notification requirement).
Section 4.7 ABSENCE OF CERTAIN EVENTS. Except as set forth on Schedule
4.7 hereto, since December 31, 2000, there has not been: (a) any event or
occurrence that would have a Material Adverse Effect on OBS or the Purchased
Assets; (b) any entry into any agreement or understanding between OBS and any of
its executive officers or key employees, providing for employment of any such
officer or key employee or any material increase in the compensation, severance
or termination benefits payable or to become payable by OBS to any of its
officers or key employees, or any material increase in any bonus, insurance,
pension or other employee benefit plan, payment or arrangement; (c) any
mortgage, pledge, lien or encumbrance made on any of the properties or assets of
OBS; (d) any damage, destruction or loss to the properties or business of OBS,
whether covered by insurance or not, that would have a Material Adverse Effect
on OBS; (e) any cancellation by OBS of any debts or waiver by OBS of any claims
of substantial value, except in the normal course of business; (f) any sale,
transfer or other disposition of tangible assets of OBS except in the normal
course of business; (g) any sale, transfer or other disposition of any
Intellectual Property of OBS; (h) any declaration, setting aside or payment of
any dividend or other distribution (whether in cash, stock or property) with
respect to any of the OBS Common Stock; (i) any split, combination or
reclassification of any of the capital stock of OBS or any issuance or
authorization of any issuance of any other securities in respect of, in lieu of,
or in substitution for, shares of OBS capital stock; or (j) any agreement to do
any of the foregoing.
Section 4.8 LITIGATION. Except as set forth on Schedule 4.8 hereto,
there is no action, suit, proceeding or, to the Knowledge of STOCKWALK,
investigation pending or, to the Knowledge of STOCKWALK, threatened against OBS
at law or in equity, or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality.
Neither STOCKWALK nor OBS is subject to any order, judgment or decree that would
materially limit the ability of OBS to operate its business in the ordinary
course or the ability of STOCKWALK to consummate the transactions contemplated
hereby.
EXHIBIT 10.1-13
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Section 4.9 EMPLOYEE BENEFIT PLANS.
(a) Other than as set forth on Schedule 4.9, OBS does not sponsor
or maintain and has not sponsored or maintained, and is not and has not
been a signatory party to, any of the following types of plans,
agreements or arrangements for the benefit of its employees:
(i) any "employee benefit plan" as defined in Section 3(3)
of ERISA, or
(ii) any other deferred or incentive compensation, stock or
stock option, severance or salary continuation, medical, life,
AD&D, vacation, sick leave or other fringe benefit or insurance
plan, agreement or arrangement.
(b) Schedule 4.9 hereto includes a complete and correct list of
all plans, agreements or arrangements sponsored or maintained by
STOCKWALK pursuant to which employees of OBS are provided with
retirement, health and fringe benefits (including severance, vacation
and sick leave benefits).
(c) OBS has made contributions to or been charged with liabilities
on its financial statements with respect to, or will make contributions
and incur such charges, to or with respect to each plan, agreement or
arrangement listed on Schedule 4.9, for amounts due with respect to or
the costs of all retirement, health and fringe benefits provided or to
be provided to its employees attributable to all of their employment by
OBS prior to the Closing Date.
Section 4.10 TAX MATTERS. Except as set forth in Schedule 4.10, (a)
STOCKWALK, for itself and on behalf of OBS, and its other subsidiaries and/or
affiliates, in each case, that have been included in STOCKWALK's Federal
consolidated income tax return (collectively, the "STOCKWALK Taxpayers") has
caused to be filed or (in the case of returns or reports not yet due) will file
all tax returns and reports required to have been filed by or for it before the
Closing Date, (b) the STOCKWALK Taxpayers have paid or made adequate provision
for or (with respect to returns or reports not yet filed) before the Closing
Date will pay or make adequate provision for all taxes, additions to tax,
penalties and interest shown as due on those returns or reports pursuant to any
assessments received with respect to those returns or reports, (c) the STOCKWALK
Taxpayers have collected or withheld, or will collect or withhold before the
Closing Date, all amounts required to be collected or withheld by the STOCKWALK
Taxpayers for any taxes, and all such amounts have been, or before the Closing
Date will have been, paid to the appropriate governmental agencies or set aside
in appropriate accounts for future payment when due; and (d) none of the
STOCKWALK Taxpayers has granted (nor is it subject to) any waiver of the period
of limitations for the assessment of tax for any currently open taxable period,
and no unpaid tax deficiency has been asserted against or with respect to any of
the STOCKWALK Taxpayers by any taxing authority.
EXHIBIT 10.1-14
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Section 4.11 PURCHASED ASSETS. Except as set forth in Schedule 2.1, all
of the Purchased Assets are in good condition and working order, subject to
normal wear and tear. STOCKWALK has good and marketable title to all of the
Purchased Assets, free and clear of any liens, claims, mortgages, or other
encumbrances. There are no financing statements designating STOCKWALK or OBS as
Debtor in relation to the Purchased Assets or the Business. To the Knowledge of
STOCKWALK, the Purchased Assets represent all of the assets necessary for OBS to
conduct the Business.
Section 4.12 REAL PROPERTY. OBS neither owns nor leases any real
property.
Section 4.13 COMPLIANCE WITH APPLICABLE LAWS.
(a) Except as set forth on Schedule 4.13 hereto, the conduct of
OBS's Business does not violate or infringe upon any federal, state or
local law, rule or regulation, the failure to comply with which would
have a Material Adverse Effect on OBS.
(b) OBS has obtained all Governmental Authorizations which are
necessary for the conduct of its Business as now conducted or which, if
not obtained and maintained, could singly or in the aggregate, have any
Material Adverse Effect on OBS. Without limiting the generality of the
foregoing, OBS is a registered broker-dealer with the Securities
Exchange Commission and the securities regulatory authorities of all
U.S. states and is a member with the NASD. No Governmental
Authorization is the subject of any pending or, to the Knowledge of
STOCKWALK, threatened revocation, suspension or termination or any
other enforcement proceeding. To the Knowledge of STOCKWALK, neither
OBS nor any officer or director of OBS nor any other Person registered
in any capacity on behalf of OBS with the NASD has been charged with,
or is subject to any administrative proceeding for, any breach or
violation of any applicable law, rule, regulation or Governmental
Authorization requiring disclosure on OBS' Form BD or in any such
Person's Form U-4 on file with the NASD, which has not been so
disclosed as of the date hereof.
Section 4.14 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth on
Schedule 4.14, OBS does not have any material liabilities or obligations of any
kind, whether absolute, accrued, asserted or unasserted, contingent or
otherwise, except liabilities, obligations or contingencies that are accrued or
reserved against in the balance sheet of OBS included in its most recent FOCUS
Report, or that were incurred after the date of such balance sheet in the
ordinary course of business and consistent with past practices, none of which,
individually, was material.
Section 4.15 INTELLECTUAL PROPERTY. Schedule 4.15 sets forth an
accurate, correct and complete list and summary description of all trademarks,
trademark rights, trade names, trade styles, trade dress, product designations,
service marks, copyrights, domain names and applications for any of the
foregoing, used, owned or granted by or to Stockwalk or OBS (the "Intellectual
Property"). Schedule 4.15 sets forth an accurate, correct and complete list and
summary description of all licenses and other agreements relating to any
Intellectual Property. Except as set forth in Schedule 4.15, with respect to the
Intellectual Property, (a) none of the
EXHIBIT 10.1-15
16
Intellectual Property interferes with, infringes upon, conflicts with or
otherwise violates the rights of others or is being interfered with or infringed
upon by others; (b) none is subject to any outstanding order, decree, judgment,
stipulation or charge; (c) the Intellectual Property constitutes all such
assets, properties and rights which are used in or necessary for the conduct of
OBS's Business. None of the rights of OBS in and to the Intellectual Property
will be affected by the Asset Purchase as contemplated herein.
Section 4.16 SOFTWARE AND INFORMATION SYSTEMS. OBS has all necessary
right, title or interest, including, without limitation, the right to use, to
all electronic data processing systems, information systems, computer software
programs, program specifications, charts, procedures, source codes, input data,
routines, data bases and report layouts and formats, record file layouts,
diagrams, functional specifications and narrative descriptions, flow charts and
other related material utilized by OBS in the Business (collectively, the
"Software"). Schedule 4.16 sets forth an accurate, correct and complete list and
summary description of all Software owned or leased by OBS and identifies (i)
Software which is owned by OBS and any licenses thereof; (ii) Software which is
licensed to OBS and whether any copies of such licensed Software have been made;
(iii) any other Software in which OBS has any use, possessory or proprietary
rights; and (iv) all pending Software development projects, together with an
identification of the persons undertaking such projects.
Section 4.17 CONTRACTS. Schedule 4.17 attached hereto is a true and
complete list of all contracts, agreements, leases, relationships and
commitments, written or oral, to which OBS is a party or to which STOCKWALK is a
party relating to the Business of OBS (collectively, the "Contracts"). Except
for those which are to be performed after the date hereof, OBS has performed
each material term, covenant and condition of each of the Contracts. No event
has occurred that would, with the passage of time or compliance with any
applicable notice requirements, constitute a material default by OBS, STOCKWALK
or, to the Knowledge of STOCKWALK, any other party under any of the Contracts,
and, to the Knowledge of STOCKWALK, such contracts are in full force and effect
and no party to any of such Contracts intends to cancel, terminate or exercise
any option under any of such Contracts, the result of which would have a
Material Adverse Effect on OBS.
Section 4.18 BOOKS AND RECORDS. The corporate records of OBS related to
the operations of OBS are in all material respects complete and correct and have
been maintained in accordance with good business practices.
Section 4.19 EMPLOYEES. Schedule 4.19 hereto sets forth a complete and
accurate list of all employees of OBS showing for each: name, current job title
or description, current salary level (including any bonus or deferred
compensation arrangements) and any bonus, commission or other remuneration paid
during fiscal year 2000, and describing any existing contractual arrangement
with such employee; provided, however, that following the date of this
Agreement, STOCKWALK makes no representation that any of the employees set forth
on Schedule 4.19 hereof will remain employed with OBS.
Section 4.20 INSURANCE. Schedule 4.20 lists for each policy or binder
of insurance currently in effect covering the conduct of OBS's business, the
insurer, policy number, term,
EXHIBIT 10.1-16
17
amounts or limits of liability, and annual premium. A true and correct copy of
each such policy or binder of insurance has been made available to BLUESUIT.
Neither OBS nor STOCKWALK on behalf of OBS has had any application for insurance
pertaining to OBS rejected, cancelled or withdrawn. Neither OBS nor STOCKWALK is
in default with respect to any provision contained in any such insurance policy
nor has it failed to give any notice or present any claim thereunder in a due
and timely fashion. Neither OBS nor STOCKWALK on behalf of OBS has received any
notice from or on behalf of any insurance carrier presently providing insurance
with respect to OBS that insurance rates will be substantially increased, or
that there will be no renewal of any policy presently in effect, or that
material alterations to any of the properties or business operations of OBS are
required by such carrier.
Section 4.21 INTERCOMPANY INDEBTEDNESS. As of the Closing Date, there
will be no amounts owed to STOCKWALK from OBS or to OBS from STOCKWALK.
Section 4.22 RESTRICTION ON SHARES.
(a) Investment Intent. STOCKWALK represents that it is receiving
the Shares pursuant to this Agreement for investment and not with a
view to, or for resale in connection with, any distribution or public
offering thereof. Further, STOCKWALK understands and acknowledges that
the offering of the Shares pursuant to this Agreement will not be
registered under the Securities Act of 1933, as amended (the
"Securities Act"), on the grounds that the offering and sale of
securities contemplated by this Agreement are exempt from registration
under the Securities Act, and that BLUESUIT's reliance upon such
exemptions is predicated upon STOCKWALK's representations set forth in
this Agreement. Subject to the terms of the Amended and Restated
Registration Rights Agreement, STOCKWALK acknowledges and understands
that the Shares must be held indefinitely unless the Shares are
subsequently registered under the Securities Act and qualified under
applicable blue sky laws or an exemption from such registration and
such qualification is available. STOCKWALK further acknowledges and
understands that BLUESUIT has no present intention to register any of
the Shares under the Securities Act.
(b) No Transfer. STOCKWALK covenants that in no event will it
dispose of any of the Shares (other than in conjunction with an
effective registration statement for the Shares under the Securities
Act or in compliance with Rule 144 promulgated under the Securities Act
if and when Rule 144 is available) unless and until (i) BLUESUIT has
been notified of the proposed disposition, and (ii) if reasonably
requested by BLUESUIT, STOCKWALK shall have furnished BLUESUIT with an
opinion of counsel reasonably satisfactory in form and substance to
BLUESUIT to the effect that registration under the Securities Act or
compliance with Rule 144 promulgated under the Securities Act is not
required.
(c) Accredited Investor. STOCKWALK represents and warrants that it
is an accredited investor within the meaning of Regulation D under the
Securities Act.
EXHIBIT 10.1-17
18
(d) Legends. STOCKWALK acknowledges that each certificate
representing the Shares will be endorsed with the following
legend:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), AND ARE "RESTRICTED SECURITIES" AS DEFINED IN RULE
144 PROMULGATED UNDER THE ACT. THE SHARES MAY NOT BE SOLD,
OFFERED FOR SALE OR OTHERWISE TRANSFERRED, ASSIGNED,
PLEDGED, OR HYPOTHECATED EXCEPT (i) IN CONJUNCTION WITH AN
EFFECTIVE REGISTRATION STATEMENT FOR THE SHARES UNDER THE
ACT, (ii) IN COMPLIANCE WITH RULE 144 OR (iii) PURSUANT TO
AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT
SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED.
Except as otherwise set forth herein, BLUESUIT need not register a
transfer of legended Shares, and may also instruct its transfer agent
not to register the transfer of the Shares, unless the conditions
specified in the foregoing legend is satisfied.
Section 4.23 BROKER'S OR FINDER'S FEES. Other than as set forth on
Schedule 4.23, neither STOCKWALK nor OBS has or will have any liability or
obligation to pay any fees or commissions to any broker, finder, or agent with
respect to the transactions contemplated by this Agreement.
Section 4.24 DISCLOSURE. No representation or warranty by STOCKWALK to
BLUESUIT contained in this Agreement, and no statement contained in the
Schedules referred to in Article 4 hereto or any certificate furnished to
BLUESUIT pursuant to the provisions hereof, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements herein or therein not misleading.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BLUESUIT
As an inducement to enter into this Agreement, BLUESUIT represents and
warrants to STOCKWALK as follows:
Section 5.1 ORGANIZATION. BLUESUIT is a corporation duly organized,
validly existing and in good standing under the laws of the State of Illinois
and has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as now being conducted.
Section 5.2 CAPITALIZATION. BLUESUIT's authorized equity capitalization
consists of 20,000,000 shares of BLUESUIT Common Stock and 10,000,000 shares of
preferred stock, of which 3,900,000 shares of BLUESUIT Common Stock and
1,766,667 shares of BLUESUIT
EXHIBIT 10.1-18
19
Preferred Stock are issued and outstanding and are owned by the Persons and in
the amounts set forth on Schedule 5.2 hereto. An aggregate of 555,550 shares of
BLUESUIT Common Stock are issuable upon exercise of options granted under stock
option plans of BLUESUIT to the Persons, in the amounts and at the exercise
prices set forth on Schedule 5.2 hereto. An aggregate of 3,700,000 shares of
BLUESUIT Common Stock are issuable upon exercise of warrants granted by BLUESUIT
to the Persons, in the amounts and at the exercise prices set forth on Schedule
5.2 hereto. All issued and outstanding shares of BLUESUIT capital stock (a) have
been duly authorized and validly issued, and (b) are fully paid and
non-assessable. Except for the issuance of the Shares, and except as described
above in this Section 5.2, and other than the outstanding stock options,
warrants and the other transactions set forth on Schedule 5.2, there are no
outstanding options, warrants, subscriptions or other rights to purchase or
acquire any capital stock of BLUESUIT, and there are no contracts, commitments,
understandings, arrangements or restrictions by which BLUESUIT is bound to sell
or issue any shares of its capital stock or any such options, warrants or
rights.
Section 5.3 AUTHORITY RELATIVE TO THIS AGREEMENT. The execution,
delivery and performance of this Agreement and of all of the documents and
instruments required hereby by BLUESUIT are within the corporate power of
BLUESUIT. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of BLUESUIT and the shareholders of BLUESUIT, and no other corporate
proceedings on the part of BLUESUIT are necessary to authorize this Agreement or
to consummate the transactions contemplated herein. This Agreement and all of
the other documents and instruments required hereby have been or will be duly
and validly executed and delivered by BLUESUIT and constitute or will constitute
valid and binding agreements of BLUESUIT, enforceable against it in accordance
with its respective terms, except to the extent that the enforcement hereof may
be limited by (a) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally, and (b)
general principles of equity, regardless of whether enforceability is considered
in a proceeding in equity or at law.
Section 5.4 NON-CONTRAVENTION; APPROVALS AND CONSENTS. No filing or
registration with, and no permit, authorization, consent or approval of, and no
notice to any public body or authority is necessary or required in connection
with the execution and delivery of this Agreement by BLUESUIT or for the
consummation by BLUESUIT of the transactions contemplated by this Agreement.
Assuming that all filings, registrations, permits, authorizations, consents and
approvals contemplated by the immediately preceding sentence have been duly made
or obtained, neither the execution, delivery and performance of this Agreement
nor the consummation of the transactions contemplated hereby by BLUESUIT will
(a) conflict with or result in any breach of any provision of the amended
articles of incorporation or by-laws of BLUESUIT, (b) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation or acceleration)
under, any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, agreement or other instrument or obligation to
which BLUESUIT is a party or by which it or any of its properties or assets may
be bound, or (c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to BLUESUIT or any of its properties or assets except, in
the case of subsection (b) and (c) above, for violations, breaches or
EXHIBIT 10.1-19
20
defaults that would not in the aggregate have a Material Adverse Effect on the
business, operations or financial condition of BLUESUIT and that will not
prevent or delay the transactions contemplated hereby.
Section 5.5 FINANCIAL STATEMENTS. BLUESUIT has delivered to STOCKWALK
copies of the audited financial statements of BLUESUIT for the fiscal period
ended June 30, 2000 and summary interim consolidated financial statements of
BLUESUIT for the seven months ended January 31, 2001 (collectively, the
"BLUESUIT Financials"). The BLUESUIT Financials, taken as a whole, fairly
present the consolidated financial position and results of operations of
BLUESUIT as of the dates thereof and for the periods then ended, and the
BLUESUIT Financials have been prepared in accordance with generally accepted
accounting principles, except with respect to the interim consolidated financial
statements referred to above which only exclude footnotes.
Section 5.6 ABSENCE OF CERTAIN EVENTS. Except as set forth on Schedule
5.6 hereto, since January 31, 2001, there has not been: (a) any event or
occurrence that would have a Material Adverse Effect on BLUESUIT; (b) any entry
into any agreement or understanding between BLUESUIT and any of its executive
officers or key employees, providing for employment of any such officer or key
employee or any material increase in the compensation, severance or termination
benefits payable or to become payable by BLUESUIT to any of its officers or key
employees, or any material increase in any bonus, insurance, pension or other
employee benefit plan, payment or arrangement; (c) any mortgage, pledge, lien or
encumbrance made on any of the properties or assets of BLUESUIT; (d) any damage,
destruction or loss to the properties or business of BLUESUIT, whether covered
by insurance or not, that would have a Material Adverse Effect on BLUESUIT; (e)
any cancellation by BLUESUIT of any debts or waiver by BLUESUIT of any claims of
substantial value, except in the normal course of business; (f) any sale,
transfer or other disposition of tangible assets of BLUESUIT except in the
normal course of business; (g) any sale, transfer or other disposition of any
Intellectual Property of BLUESUIT; (h) any declaration, setting aside or payment
of any dividend or other distribution (whether in cash, stock or property) with
respect to any of the BLUESUIT Common Stock or the BLUESUIT Preferred Stock; (i)
any split, combination or reclassification of any of the capital stock of
BLUESUIT or any issuance or authorization of any issuance of any other
securities in respect of, in lieu of, or in substitution for, shares of BLUESUIT
capital stock; or (j) any agreement to do any of the foregoing.
Section 5.7 LITIGATION. Except as set forth on Schedule 5.7 hereto,
there is no action, suit, proceeding or, to the Knowledge of BLUESUIT,
investigation pending or, to the Knowledge of BLUESUIT, threatened against
BLUESUIT at law or in equity, or before any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality.
BLUESUIT is not subject to any order, judgment or decree that would materially
limit the ability of BLUESUIT to operate its business in the ordinary course or
to consummate the transactions contemplated hereby.
EXHIBIT 10.1-20
21
Section 5.8 COMPLIANCE WITH APPLICABLE LAWS.
(a) Except as set forth on Schedule 5.8 hereto, the conduct of
BLUESUIT's business does not violate or infringe upon any federal,
state or local law, rule or regulation, the failure to comply with
which would have a Material Adverse Effect on BLUESUIT.
(b) BLUESUIT has obtained all Governmental Authorizations which
are necessary for the conduct of its business as now conducted or
which, if not obtained and maintained, could singly or in the
aggregate, have any Material Adverse Effect on BLUESUIT. No
Governmental Authorization is the subject of any pending or, to the
Knowledge of BLUESUIT, threatened revocation, suspension or termination
or any other enforcement proceeding. To the Knowledge of BLUESUIT,
neither BLUESUIT nor any officer or director of BLUESUIT, nor any other
Person registered in any capacity on behalf of BLUESUIT with the NASD
has been charged with, or is subject to any administrative proceeding
for, any breach or violation of any applicable law, rule, regulation or
Governmental Authorization requiring disclosure on BLUESUIT SECURITIES'
Form BD or in any such Person's Form U-4 on file with the NASD, which
has not been so disclosed as of the date hereof.
Section 5.9 ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth on
Schedule 5.9, BLUESUIT does not have any material liabilities or obligations of
any kind, whether absolute, accrued, asserted or unasserted, contingent or
otherwise, except liabilities, obligations or contingencies that are accrued or
reserved against in the balance sheet of BLUESUIT included in its most recent
BLUESUIT Financials, or that were incurred after the date of such balance sheet
in the ordinary course of business and consistent with past practices.
Section 5.10 BROKER'S OR FINDER'S FEES. BLUESUIT does not have nor will
it have any liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement.
Section 5.11 DISCLOSURE. No representation or warranty by BLUESUIT to
STOCKWALK and OBS contained in this Agreement, and no statement contained in the
Schedules referred to in Article 5 hereto or any certificate furnished to
STOCKWALK pursuant to the provisions hereof, contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements herein or therein not misleading.
EXHIBIT 10.1-21
22
ARTICLE 6
COVENANTS
Section 6.1 CONDUCT OF BUSINESS OF OBS. During the period from the date
of this Agreement to the Closing Date, OBS will conduct its operations according
to its ordinary and usual course of business and consistent with past practice,
and OBS will use its reasonable efforts to preserve intact its properties,
business and relationships with customers and suppliers, except as otherwise
permitted by this Agreement or consented to by BLUESUIT in writing. Without
limiting the generality of the foregoing, and except as otherwise provided in
this Agreement, prior to the Closing Date, OBS will not, without the prior
written consent of BLUESUIT:
(a) amend its articles of incorporation or bylaws;
(b) authorize for issuance or issue, sell or deliver (whether
through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise) any
capital stock of any class or any other securities;
(c) split, combine or reclassify any shares of its capital
stock, declare, set aside or pay any dividend or other
distribution (whether in cash, stock or property or any
combination thereof) in respect of its capital stock, or redeem or
otherwise acquire any of its securities; provided, however, that
immediately prior to the Closing, OBS may distribute to STOCKWALK
any cash of OBS in excess of $50,000;
(d) except in the ordinary course of business, (i) incur or
assume any indebtedness for borrowed money not currently
outstanding, (ii) assume, guarantee, endorse or otherwise become
liable or responsible for the obligations of any Person, (iii)
make any loans, advances or capital contributions to, or
investments in, any other Person (other than customary loans or
advances to employees in accordance with past practice), (iv)
enter into any contract or agreement other than in the ordinary
course of business or in connection with the transactions
contemplated by this Agreement, or (v) authorize any single
capital expenditure which is in excess of $5,000 or capital
expenditures which are, in the aggregate, in excess of $25,000 for
OBS;
(e) adopt or amend (except as may be required by law or as
provided in this Agreement) any bonus, profit sharing,
compensation, severance, termination, stock option, stock
appreciation right, restricted stock, pension, retirement,
deferred compensation, employment, severance or other employee
benefit agreements, trusts, plans, funds or other arrangements for
the benefit or welfare of any director, officer or employee, or
(except for previously scheduled increases in the ordinary course
of business that are consistent with past practices) increase in
any manner the compensation or fringe benefits of any director,
officer or employee or pay any benefit not required by law or by
any existing plan or arrangement (including, without limitation,
the granting of stock options, stock appreciation rights, shares
of restricted stock or performance units) or enter into any
contract, agreement, commitment or arrangement to do any of the
foregoing;
EXHIBIT 10.1-22
23
(f) acquire, sell, lease or dispose of any material assets
except in the ordinary course of business;
(g) terminate any Governmental Authorizations; or
(h) agree in writing or otherwise to take any of the
foregoing actions.
Section 6.2 ACCESS TO INFORMATION. Between the date of this Agreement
and the Closing Date, BLUESUIT and its authorized agents, officers and
representatives shall have reasonable access at BLUESUIT's sole cost and expense
to the properties, books, records, contracts, information and documents of OBS
to conduct such additional examinations and investigations of OBS as BLUESUIT
deems necessary; provided, however, that such examinations and investigations:
(a) shall be conducted only with the prior permission of a designated
representative of STOCKWALK, which permission shall not be withheld
unreasonably; (b) shall be conducted during OBS's normal business hours; and (c)
shall not unreasonably interfere with OBS's operations and activities.
Section 6.3 BEST EFFORTS. Subject to the terms and conditions herein
provided and, with respect to each of STOCKWALK, OBS and BLUESUIT, subject to
its fiduciary obligations under applicable law as advised in writing by counsel,
each of the parties hereto agrees to use its best efforts to take, or cause to
be taken, all actions, and to do, or cause to be done, all things necessary,
proper and advisable under applicable laws and regulations (including, without
limitation, NASD Rule 1017), to consummate and make effective the transactions
contemplated by this Agreement. In case, at any time after the Closing Date, any
further action is necessary or reasonably desirable to carry out the purposes of
this Agreement, the proper officers and directors of each party to this
Agreement shall take such actions necessitated thereby. STOCKWALK, OBS and
BLUESUIT will execute any additional instruments reasonably necessary to
consummate the transactions contemplated hereby.
Section 6.4 TRANSFER OF CONTRACTS. In accordance with Schedule 4.5,
prior to the Closing, STOCKWALK shall cause to be transferred and assigned to
OBS those contracts relating to the Business set forth in Schedule 4.5 or
Schedule 4.17 to which Xxxxxxxxx.xxx, Inc. is a party.
Section 6.5 CONSENTS. BLUESUIT, STOCKWALK and OBS each will use its
best efforts to obtain consents of all third parties and governmental
authorities necessary to the consummation of the transactions contemplated by
this Agreement.
Section 6.6 PUBLIC ANNOUNCEMENTS. BLUESUIT, STOCKWALK and OBS will
consult with each other before issuing any press release or otherwise making any
public statement with respect to this Agreement or the Asset Purchase and shall
not issue any such press release or make any such public statement prior to such
consultation or as to which the other party reasonably objects, except as may be
required by law, without the prior written consent of all of the parties hereto.
EXHIBIT 10.1-23
24
Section 6.7 GMACIS AGREEMENT. BLUESUIT shall provide STOCKWALK with
written notification on the date on which the GMACIS Agreement is executed.
BLUESUIT hereby covenants and agrees to use its best efforts, and to cause OBS
to use its best efforts to have such agreement executed within six (6) months of
the Closing Date.
Section 6.8 COVENANT NOT TO COMPETE. For a period of two (2) years
following the Closing Date, neither STOCKWALK nor any subsidiaries of STOCKWALK,
whether now existing or hereafter created (including, without limitation,
STOCKWALK's subsidiary Xxxxxxxxx.xxx, Inc.), shall, anywhere within the United
States, directly or indirectly, own, manage, control, operate, be employed by or
act as agent for, participate in, or be connected in any manner with the
ownership, management, operation or control of any business which is competitive
with the Business of OBS as conducted, or contemplated to be conducted (as
further described in Schedule 6.8 hereof), as of the Closing Date; provided,
however, that the foregoing restrictions shall not apply with respect to the
activities set forth on Exhibit M hereto. For purposes of this Section 6.8,
"subsidiary" shall mean any entity in which STOCKWALK owns or controls directly
or indirectly more than 50 percent of the outstanding shares of any class nf
stock or other interest evidencing ownership therein.
Section 6.9 NASD WARRANTS. BLUESUIT shall transfer and assign to
STOCKWALK all of the NASD Warrants (the "Warrants") set forth on Schedule 4.3
within five business days from the expiration of the transfer restrictions
contained in the terms and conditions of the Warrants.
ARTICLE 7
CONDITIONS PRECEDENT TO CONSUMMATION OF THE ASSET PURCHASE
Section 7.1 CONDITIONS PRECEDENT TO EACH PARTY'S OBLIGATION TO EFFECT
THE ASSET PURCHASE. The respective obligations of each party to consummate the
Asset Purchase are subject to the satisfaction at or prior to the Closing Date
of the following conditions precedent:
(a) no order, decree or injunction shall have been enacted,
entered, promulgated or enforced by any court of competent jurisdiction
or any governmental authority which prohibits the consummation of the
Asset Purchase; provided, however, that the parties hereto shall use
their best efforts to have any such order, decree or injunction vacated
or reversed; and
(b) all filings required under NASD Rule 1017 prior to
consummation of the Asset Purchase shall have been made, and the NASD
shall not have advised OBS that it will not approve the change of
control of OBS to be effected pursuant to the Asset Purchase.
Section 7.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF BLUESUIT. The
obligations of BLUESUIT to consummate the Asset Purchase are subject to the
satisfaction or waiver at or prior to the Closing Date of the following
conditions precedent:
EXHIBIT 10.1-24
25
(a) the representations and warranties of STOCKWALK contained in
Article 4 shall be true and correct in all material respects when made
and at and as of the Closing Date with the same force and effect as if
those representations and warranties had been made at and as of such
time (with such exceptions, if any, necessary to give effect to events
or transactions expressly permitted herein);
(b) STOCKWALK shall, in all material respects, have performed all
obligations and complied with all covenants contemplated herein that
are necessary to be performed or complied with by it on or before the
Closing Date;
(c) all proceedings, corporate or other, to be taken by STOCKWALK
in connection with the transactions contemplated by this Agreement, and
all documents incident thereto, shall be reasonably satisfactory in
form and substance to BLUESUIT and BLUESUIT's counsel;
(d) BLUESUIT shall have received the opinion of Xxxxxxx, Street
and Deinard, P.A. for STOCKWALK and OBS, dated the Closing Date,
substantially in the form of Exhibit D hereto;
(e) STOCKWALK shall have executed and delivered the Amended and
Restated Shareholders Agreement in the form of Exhibit E hereto;
(f) STOCKWALK shall have executed and delivered a Transition
Services Agreement in the form of Exhibit B hereto;
(g) OBS shall have on deposit in its bank account(s) on the
Closing Date, the sum of $50,000;
(h) STOCKWALK shall have requested, received and accepted the
resignation of all OBS directors and officers prior to the Closing Date
with the exception of Xxxxxx Xxxxxxxx and Xxxxxx Xxxxxxx; and
(i) STOCKWALK shall have delivered to BLUESUIT certificate(s)
representing the OBS Shares, duly endorsed for transfer, and xxxx of
sale in form satisfactory to BLUESUIT transferring title to the
Purchased Assets.
(j) BLUESUIT shall have received from STOCKWALK an Estoppel
Certificate substantially in the form of Exhibit H executed by FLS
Services and/or other assignment agreements as set forth on Schedule
4.5.
(k) STOCKWALK and OBS shall have delivered to BLUESUIT a
Secretary's Certificate substantially in the form of Exhibit I attached
hereto.
(l) BLUESUIT shall have received an Officer's Certificate from
STOCKWALK and an Officer's Certificate from OBS, certifying fulfillment
of the
EXHIBIT 10.1-25
26
matters referred to in paragraphs (a) and (b) of this Section 7.2
substantially in the form of Exhibit J attached hereto.
(m) BLUESUIT shall have received Uniform Commercial Code, tax
lien, bankruptcy and judgment searches in the names of STOCKWALK and
OBS in all offices and jurisdictions specified by BLUESUIT, showing no
other filings or liens of record with respect to the Purchased Assets
and otherwise satisfactory to BLUESUIT.
Section 7.3 CONDITIONS PRECEDENT TO OBLIGATIONS OF STOCKWALK. The
obligations of STOCKWALK to consummate the Asset Purchase are subject to the
satisfaction or waiver at or prior to the Closing Date of the following
conditions precedent:
(a) the representations and warranties of BLUESUIT contained in
Article 5 shall be true and correct in all material respects when made
at and as of the Closing Date with the same force and effect as if
those representations and warranties had been made at and as of such
time (with such exceptions, if any, necessary to give effect to events
or transactions expressly permitted herein);
(b) BLUESUIT shall, in all material respects, have performed all
obligations and complied with all covenants contemplated herein that
are necessary to be performed or complied with by it on or before the
Closing Date;
(c) all proceedings, corporate or other, to be taken by BLUESUIT
in connection with the transactions contemplated by this Agreement, and
all documents incident thereto, shall be reasonably satisfactory in
form and substance to STOCKWALK and STOCKWALK's counsel;
(d) STOCKWALK shall have received the opinion of Ungaretti &
Xxxxxx, counsel for BLUESUIT, dated the Closing Date, substantially in
the form of Exhibit F hereto;
(e) BLUESUIT and the other shareholders of BLUESUIT shall have
executed and delivered the Amended and Restated Shareholders Agreement
in the form of Exhibit E hereto;
(f) BLUESUIT and the other shareholders of BLUESUIT shall have
executed and delivered the Amended and Restated Registration Rights
Agreement in the form of Exhibit A hereto;
(g) BLUESUIT shall have executed and delivered the Transition
Services Agreement in the form of Exhibit B hereto;
(h) the Escrow Agent shall have delivered to STOCKWALK, by wire
transfer from the Escrow to a designated bank account of STOCKWALK, the
sum of $1,800,000 in consideration for the OBS Shares;
EXHIBIT 10.1-26
27
(i) BLUESUIT shall have delivered to STOCKWALK a certificate
registered in the name of STOCKWALK representing 300,000 Shares.
(j) BLUESUIT shall have delivered to STOCKWALK a Secretary's
Certificate substantially in the form of Exhibit K attached hereto.
(k) STOCKWALK shall have received a certificate of the Chief
Executive Officer of BLUESUIT, certifying fulfillment of the matters
referred to in paragraphs (a) and (b) of this Section 7.3 substantially
in the form of Exhibit L attached hereto.
ARTICLE 8
INDEMNIFICATION
Section 8.1 INDEMNIFICATION OF BLUESUIT.
(a) STOCKWALK will indemnify BLUESUIT against all claims, damages,
actions, proceedings and expenses (including reasonable attorneys'
fees) incurred by BLUESUIT as a result of: (i) any breach of the
representations and warranties of STOCKWALK and OBS contained in
Article 4; and (ii) any breach of any agreement or covenant by
STOCKWALK and OBS contained in Article 6; provided, however, that
notice of any circumstance giving rise, or potentially giving rise, to
a claim for indemnification must be submitted prior to the expiration
of the Survival Period (as defined in Section 8.4 below). BLUESUIT will
have the right, upon ten (10) days prior written notice to STOCKWALK
(the "Offset Notice") to offset indemnification claims against the
Deferred Payments described in Section 3.1 above, but such offset will
not serve as an exclusive remedy. If a dispute arises regarding
BLUESUIT's right to offset indemnification claims against the Deferred
Payments, which has not been resolved within thirty (30) days of the
date of the Offset Notice, then either party may initiate arbitration
of the dispute. The dispute shall then be submitted to mandatory and
binding arbitration in Chicago, Illinois in accordance with the
commercial rules and procedures of the American Arbitration Association
before a single arbitrator. Judgment upon the award may be entered by
any court having appropriate jurisdiction.
(b) Under any circumstances, the maximum indemnification liability
of STOCKWALK will be $4,500,000; provided, however, that the foregoing
limitation will not apply with respect to tax liabilities for any of
the STOCKWALK Taxpayers other than OBS. At STOCKWALK's discretion, the
first $4,000,000 in indemnification claims may be satisfied one-half in
cash and one-half through the surrender of the Shares (valued at $6.00
per share) described in Section 3.1(b) above. Indemnification claims in
excess of $4,000,000 up to but not to exceed $4,500,000 will be
satisfied only through the surrender of the Shares. Notwithstanding the
foregoing, STOCKWALK in its sole discretion shall be entitled to
satisfy any claims pursuant to which BLUESUIT is entitled to
indemnification in cash. Notwithstanding anything else in this
Agreement, the maximum amount of STOCKWALK's liability shall not exceed
the amounts that
EXHIBIT 10.1-27
28
STOCKWALK actually receives pursuant to the terms hereof; provided,
however, that such limitation will not apply with respect to tax
liabilities.
Section 8.2 INDEMNIFICATION OF STOCKWALK.
(a) BLUESUIT will indemnify STOCKWALK against all claims, damages,
actions, proceedings and expenses (including reasonable attorneys'
fees) incurred by STOCKWALK as a result: of (i) any breach of the
representations, warranties, agreements or covenants of BLUESUIT
contained in Article 5; (ii) any breach of any agreement or covenant by
BLUESUIT contained in Article 6; and (iii) any claims based on any act
or omission of BLUESUIT or OBS occurring subsequent to the Closing
Date, except for acts or omissions of STOCKWALK during the Transition
Period in violation of the Transition Services Agreement; provided,
however, that notice of any circumstance giving rise, or potentially
giving rise, to a claim for indemnification must be submitted prior to
the expiration of the Survival Period (as defined in Section 8.4
below).
(b) Under any circumstances, the maximum indemnification liability
of BLUESUIT will be $4,500,000.
Section 8.3 INDEMNIFICATION CLAIMS MINIMUM. Indemnification claims will
be payable by either STOCKWALK or by BLUESUIT only to the extent they exceed, in
the aggregate, $100,000.
Section 8.4 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. The
representations, warranties and covenants made by the parties hereto shall
survive for a period of eighteen (18) months following the Closing Date (the
"Survival Period"), except with respect to income tax liabilities for periods
prior to the Closing Date, which will survive through the term of the statute of
limitations related thereto.
Section 8.5 INDEMNIFICATION PROCEDURE.
(a) Promptly after receipt by an indemnified party under Section 8.1 or
8.2, as applicable, of notice of the commencement of an action or claim to which
either such Section may apply, the indemnified party will notify the
indemnifying party in writing of the commencement of such action or claim. The
omission of notice to or failure to notify the indemnifying party will not
relieve the indemnifying party of any liability that the indemnifying party may
have to the indemnified party under either such Section, except where such
omission shall have materially prejudiced the indemnifying party.
(b) In case any such action or claim shall be brought against an
indemnified party and the indemnified party shall notify the
indemnifying party of the commencement of such action or claim, the
indemnifying party shall be entitled to participate in such action or
claim and, to the extent that the indemnifying party may desire, to
assume the defense of such action or claim with counsel selected by the
indemnifying party and approved by the indemnified party, such approval
not to be unreasonably withheld. After notice from the indemnifying
party to the indemnified party of the indemnifying party's
EXHIBIT 10.1-28
29
election so to assume the defense of such action or claim, the
indemnifying party shall not be liable to the indemnified party under
either such section for any legal, accounting and other expenses
subsequently incurred by the indemnified party in connection with the
defense of such action or claim.
(c) Notwithstanding any provision of this Section 8.5 to the
contrary, if in any action or claim as to which indemnity is or may be
available to an indemnified party, such indemnified party shall
reasonably determine that its interests are or may be adverse, in whole
or in part, to the interests of the indemnifying party or that there
may be legal defenses available to the indemnified party that are or
may be different from, in addition to, or inconsistent with, the
defenses available to the indemnifying party, the indemnified party may
retain its own counsel in connection with such action or claim and will
be indemnified by the indemnifying party for any legal, accounting and
other expenses reasonably incurred by or on behalf of it in connection
with investigating or defending such action or claim.
ARTICLE 9
TERMINATION: AMENDMENT; WAIVER
Section 9.1 TERMINATION. This Agreement may be terminated and the Asset
Purchase contemplated hereby may be abandoned at any time prior to the Closing
Date:
(a) by mutual written consent of BLUESUIT and STOCKWALK;
(b) by BLUESUIT or STOCKWALK, if the Closing Date shall not have
occurred on or before March 15, 2001 (provided that the right to
terminate this Agreement under this Section 9.1(b) shall not be
available to any party whose failure to fulfill any obligation under
this Agreement has been the cause of or has resulted in the failure of
the Closing to occur on or before such date); or
(c) by BLUESUIT or STOCKWALK, if any court of competent
jurisdiction in the United States or other United States governmental
body shall have issued an order, decree or ruling or taken any other
action restraining, enjoining or otherwise prohibiting the Asset
Purchase and such order, decree, ruling or other action shall have
become final and nonappealable.
Section 9.2 EFFECT OF TERMINATION. If this Agreement is terminated in
accordance with the provisions of Section 9.1 hereof, and the Asset Purchase is
not consummated, this Agreement shall forthwith become void and have no effect,
without any liability on the part of any party or its directors, officers or
shareholders. Nothing contained in this Section 9.2 shall relieve any party from
liability for any breach of this Agreement or supersede the provisions of
Section 3.3 or the Escrow Agreement.
Section 9.3 AMENDMENT. This Agreement may not be amended except by an
instrument in writing signed on behalf of all of the parties.
EXHIBIT 10.1-29
30
Section 9.4 EXTENSION; WAIVER. At any time prior to the Closing Date,
the parties may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document, certificate or writing delivered pursuant hereto, or (c) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of any party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
ARTICLE 10
MISCELLANEOUS
Section 10.1 EXPENSES. STOCKWALK will pay the costs of all of its and
OBS's advisors and legal counsel in connection with the Asset Purchase and any
other costs incurred by them in connection with the Asset Purchase and BLUESUIT
will pay all of its legal fees and expenses incurred in connection with the
Asset Purchase, the costs and expenses (including legal and accounting costs) of
preparing this Agreement and the legal, accounting and other costs incurred by
it in connection with the Asset Purchase.
Section 10.2 ENTIRE AGREEMENT: ASSIGNMENT. This Agreement and the
documents and instruments executed and delivered pursuant hereto (a) constitute
the entire agreement among the parties with respect to the subject matter hereof
and thereof and supersede all other prior agreements and understandings, both
written and oral, between the parties or any of them with respect to the subject
matter hereof and thereof, and (b) shall not be assigned by operation of law or
otherwise.
Section 10.3 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by cable,
telecopy, telegram or telex, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties as follows:
If to BLUESUIT:
BlueSuit, Inc.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
with a copy to:
Ungaretti & Xxxxxx
0000 Xxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
EXHIBIT 10.1-30
31
If to STOCKWALK:
Stockwalk Group, Inc.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 10.4 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Illinois, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 10.5 DESCRIPTIVE HEADINGS. The descriptive headings herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
Section 10.6 PARTIES IN INTEREST. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any rights, benefits or remedies of any nature whatsoever under or by
reason of this Agreement.
Section 10.7 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed to be an original, but all of
which shall constitute one and the same agreement.
Section 10.8 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement, including without limitation Section 6.8, were not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or equity.
Section 10.9 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the extent possible.
Section 10.10 DISCLOSURE SCHEDULES. The Disclosure Schedules attached
hereto are considered an integral part of this Agreement. The section numbers in
the Disclosures Schedules correspond to the section numbers in the Agreement;
provided, however, that any information set
EXHIBIT 10.1-31
32
forth in the Disclosure Schedules under any section number or in any Schedule or
in any financial statement shall be deemed disclosed and incorporated into any
other section or Schedule under the Agreement where such disclosure would be
appropriate, whether or not repeated under any section number where such
disclosure might be deemed appropriate so long as such disclosure adequately
reflects the circumstances called for by the applicable representation or
warranty. Unless otherwise indicated, capitalized terms used in the Disclosure
Schedules shall have the respective meaning afforded them in this Agreement.
Notwithstanding any materiality qualifications in any of STOCKWALK's or
BLUESUIT's representations or warranties in the Agreement, for administrative
ease, certain items may be included in the Disclosure Schedules which are not
considered by STOCKWALK or BLUESUIT to be material to its respective business,
assets, results of operations, prospects or affairs. The inclusion of any item
in a disclosure schedule shall not be deemed to be an admission by STOCKWALK or
BLUESUIT, as the case may be, that such item is material to its respective
business, assets, results of operations, prospects or affairs, nor shall it be
deemed an admission of any obligation or liability to any third party.
Section 10.11 NON-SOLICITATION OF EMPLOYEES. For a period of one (1)
year after the Transition Period (as defined in the Transition Services
Agreement), neither BLUESUIT nor STOCKWALK nor the subsidiaries of either, will
hire, attempt to hire or assist any other person or entity in hiring or
attempting to hire the other's employees (employed with the respective party on
the date on which such Transition Period ends or thereafter), without the prior
written consent of the non-hiring party.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed on its behalf by its officers thereunto duly authorized, all as of
the day and year first above written.
STOCKWALK GROUP, INC.
By: s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Chief Executive Officer
-----------------------------------
BLUESUIT, INC.
By: s/ Xxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxx X. Xxxx
-----------------------------------
Title: Secretary
-----------------------------------
EXHIBIT 10.1-32
