EXECUTION DRAFT
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STOCK PURCHASE AGREEMENT
BY AND AMONG
THE REGISTRY, INC.
THE XxXXXXX GROUP, INC.
XXXXX X. XXXXXXXXX
XXXXXXX X. XXXXXXXXX
AND
XXXXXX X. XXXXXXXXX
Dated as of July 10, 1997
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TABLE OF CONTENTS
ARTICLE I
PURCHASE AND SALE OF THE SHARES.......................................1
SECTION 1.1 Basic Transaction......................................1
SECTION 1.2 Purchase Price.........................................1
SECTION 1.3 The Closing............................................2
SECTION 1.4 Material Adverse Effect................................3
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS.........................3
SECTION 2.1 Seller.................................................3
SECTION 2.2 Authority..............................................3
SECTION 2.3 Noncontravention.......................................3
SECTION 2.4 Brokers' Fees..........................................4
SECTION 2.5 The Shares.............................................4
ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY.................4
SECTION 3.1 Organization and Qualification and Other
Equity Interests.......................................4
SECTION 3.2 Authority..............................................4
SECTION 3.3 Articles of Incorporation and By-Laws..................5
SECTION 3.4 Capitalization.........................................5
SECTION 3.5 No Conflict; Required Filings and Consents.............5
SECTION 3.6 Compliance, Permits....................................6
SECTION 3.7 Financial Statements...................................6
SECTION 3.8 Absence of Certain Changes or Events...................7
SECTION 3.9 No Undisclosed Liabilities.............................7
SECTION 3.10 Absence of Litigation..................................7
SECTION 3.11 Employee Benefit Plans, Employment Agreements..........7
SECTION 3.12 Labor Matters..........................................9
SECTION 3.13 Restrictions on Business Activities....................9
SECTION 3.14 Title to Property......................................9
SECTION 3.15 Taxes..................................................9
SECTION 3.16 Environmental Matters.................................11
SECTION 3.17 Intellectual Property.................................11
SECTION 3.18 Immigration Compliance................................11
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SECTION 3.19 Insurance.............................................12
SECTION 3.20 Accounts Receivable...................................12
SECTION 3.21 Brokers...............................................12
SECTION 3.22 Change in Control Payments............................13
SECTION 3.23 Expenses..............................................13
SECTION 3.24 Full Disclosure.......................................13
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER..........................13
SECTION 4.1 Organization and Qualification; Subsidiaries..........13
SECTION 4.2 Charter and By-Laws...................................13
SECTION 4.3 Authority Relative to this Agreement..................14
SECTION 4.4 No Conflict, Required Filings and Consents............14
SECTION 4.5 SEC Filings; Financial Statements.....................15
SECTION 4.6 Purchase for Investment...............................15
ARTICLE V
CONDUCT OF BUSINESS PENDING THE CLOSING...............................15
SECTION 5.1 Conduct of Business by the Company
Pending the Closing...................................15
SECTION 5.2 No Solicitation.......................................17
ARTICLE VI
ADDITIONAL AGREEMENTS.................................................18
SECTION 6.1 Access to Information; Confidentiality................18
SECTION 6.2 Consents; Approvals...................................18
SECTION 6.3 Notification of Certain Matters.......................18
SECTION 6.4 338(h)(10) Election...................................19
SECTION 6.5 Further Action/Tax Treatment..........................19
SECTION 6.6 Public Announcements..................................19
SECTION 6.7 Conveyance Taxes......................................19
ARTICLE VII
CONDITIONS TO CLOSING.................................................20
SECTION 7.1 Conditions to Obligation of Each Party to Closing.....20
SECTION 7.2 Additional Conditions to Obligations of Buyer.........20
SECTION 7.3 Additional Conditions to Obligation of the Sellers....21
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ARTICLE VIII
TERMINATION...........................................................22
SECTION 8.1 Termination..........................................22
SECTION 8.2 Effect of Termination................................23
SECTION 8.3 Fees and Expenses....................................23
ARTICLE IX
INDEMNIFICATION.......................................................23
SECTION 9.1 Survival of Representations and Warranties...........23
SECTION 9.2 Indemnification by the Sellers.......................24
SECTION 9.3 Indemnification by the Buyer.........................24
SECTION 9.4 Third Person Claims..................................25
SECTION 9.5 Limitations on Indemnification.......................26
SECTION 9.6 Determination of Damages.............................26
SECTION 9.7 Method of Payment....................................26
SECTION 9.8 Other Indemnification Provisions.....................26
ARTICLE X
GENERAL PROVISIONS....................................................26
SECTION 10.1 Survival, Etc........................................26
SECTION 10.2 Notices..............................................27
SECTION 10.3 Certain Definitions..................................28
SECTION 10.4 Amendment............................................28
SECTION 10.5 Waiver...............................................28
SECTION 10.6 Headings.............................................29
SECTION 10.7 Severability.........................................29
SECTION 10.8 Entire Agreement.....................................29
SECTION 10.9 Assignment...........................................29
SECTION 10.10 Parties in Interest..................................29
SECTION 10.11 Failure or Indulgence Not Waiver; Remedies
Cumulative...........................................29
SECTION 10.12 Governing Law........................................29
SECTION 10.13 Counterparts.........................................30
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STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is dated as of July 10, 1997 (this
"Agreement"), among The Registry, Inc., a Massachusetts corporation (the
"Buyer"), the XxXxxxx Group, inc., a Virginia corporation (the "Company"), Xxxxx
X. Xxxxxxxxx, Xxxxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxxxx (each a "Seller" and
collectively the "Sellers").
Recitals
WHEREAS, the Buyer is a corporation organized and existing under the laws
of The Commonwealth of Massachusetts;
WHEREAS, the Sellers are the beneficial and record owners of all of the
outstanding capital stock of the Company (the "Shares");
WHEREAS, the Buyer desires to purchase the Shares from the Sellers, and the
Sellers desire to sell the Shares to the Buyer; and
WHEREAS the payments provided for herein and the agreements set forth
herein constitute good and valuable consideration to the Sellers and the Sellers
acknowledge that the Buyer is relying upon the promises and indemnities made by
the Sellers herein as a material inducement to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES
SECTION 1.1 Basic Transaction. The Sellers hereby agree to sell to the
Buyer, and the Buyer hereby agrees to purchase from the Sellers, at the Closing,
subject to and upon the terms and conditions contained herein, the Shares.
SECTION 1.2 Purchase Price. The purchase price (the "Purchase Price")
which the Buyer shall pay for the Shares and in consideration of the agreements
and covenants of the Sellers contained herein is $15,400,000 payable as follows:
(a) Cash Consideration. At the Closing, the Buyer shall pay to the
Sellers $12,400,000 payable in cash, bank or certified check or by wire
transfer.
(b) Escrow. At the Closing, the Buyer shall deliver to State Street Bank
and Trust Company, or any successor escrow agent (the "Escrow Agent") appointed
pursuant to the terms of the Escrow Agreement (as defined hereinafter),
$3,000,000 of the consideration payable to the Sellers hereunder, to be held and
applied in accordance with the Escrow Agreement.
(c) Stockholder Representative. The Sellers hereby irrevocably constitute
and appoint, effective as of the Closing, Xxxxxxx X. Xxxxxxxxx (together with
his permitted successors, the "Stockholder Representative"), as their true and
lawful agent and attorney-in-fact to enter into any agreement in connection with
the transactions contemplated by this Agreement and any transactions
contemplated by the Escrow Agreement, to exercise all or any of the powers,
authority and discretion conferred on him under any such agreement, to waive any
terms and conditions of any such agreement, to give and receive notices on their
behalf and to be their exclusive representative with respect to any matter,
suit, claim, action or proceeding arising with respect to any transaction
contemplated by any such agreement, including, without limitation, the defense,
settlement or compromise of any claim, action or proceeding for which the Buyer
may be entitled to indemnification and the Stockholder Representative agrees to
act as, and to undertake the duties and responsibilities of, such agent and
attorney-in-fact. This power of attorney is coupled with an interest and is
irrevocable. The Stockholder Representative shall not be liable for any action
taken or not taken by him or it in connection with his obligations under this
Agreement (i) with the consent of Sellers who, as of the date of this Agreement,
owned a majority of the outstanding shares of Company Common Stock or (ii) in
the absence of his own gross negligence or wilful misconduct. If the
Stockholder Representative shall be unable or unwilling to serve in such
capacity, his successor shall be named by those persons holding a majority of
the shares of Company Common Stock outstanding immediately prior to the Closing
which successor shall serve and exercise the powers of Stockholder
Representative hereunder.
SECTION 1.3 The Closing. The closing of the purchase and sale of the
Shares and the other transactions contemplated hereby (the "Closing") shall take
place at the offices of Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx
Xxxxxxxxxxxxx 00000, or at such other place as may be agreed to by the Buyer and
the Sellers, on July 16, 1997 or on such date not later than August 31, 1997 as
may be agreed to by the Buyer and the Sellers (the "Closing Date").
(a) At the Closing:
(i) the Company and the Sellers shall deliver to the Buyer the
various certificates, instruments and documents referred to in Section 7.2
below;
(ii) the Buyer shall deliver to the Company and the Sellers the
various certificates, instruments and documents referred to in Section 7.3
below;
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(iii) the Sellers will deliver to the Buyer stock certificates
representing the Shares, endorsed in blank or accompanied by duly executed
assignment documents; and
(iv) the Buyer shall deliver the cash portion of the Purchase Price
payable at Closing to the Sellers and shall deliver the cash portion of the
Purchase Price to be held pursuant to the Escrow Agreement to the Escrow
Agent.
SECTION 1.4 Material Adverse Effect. When used in connection with the
Company, or Buyer or any of its subsidiaries, as the case may be, the term
"Material Adverse Effect" means any change, effect or circumstance that,
individually or when taken together with all other such changes, effects or
circumstances that have occurred prior to the date of determination of the
occurrence of the Material Adverse Effect, (a) is or is reasonably likely to be
materially adverse to the business, properties, assets (including intangible
assets), prospects, financial condition or results of operations of the Company
or Buyer and its subsidiaries, as the case may be, in the case of the Buyer
taken as a whole, or (b) is or is delaying or preventing or is reasonably likely
to delay or prevent, the consummation of the transactions contemplated hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE SELLERS
Each of the Sellers hereby represents and warrants to the Buyer, severally
and not jointly, that, except as set forth in the written disclosure schedule
delivered on or prior to the date hereof by the Sellers to Buyer that is
arranged in paragraphs corresponding to the numbered and lettered paragraphs
contained in Articles II and III (the "Seller Disclosure Schedule"):
SECTION 2.1 Seller. Each Seller is an individual residing at the address
indicated on the signature page hereto.
SECTION 2.2 Authority. Each Seller has full power and authority to
execute and deliver this Agreement and to perform his obligations hereunder.
This Agreement has been duly and validly executed and delivered by each Seller
and, assuming the due authorization, execution and delivery by the other parties
hereto, constitutes the valid and legally binding obligation of such Seller,
enforceable against Sellers in accordance with its terms and conditions. No
Seller need give any notice to, make any filing with or obtain any
authorization, consent or approval of any government or governmental agency or
any other third party in order to consummate the transactions contemplated by
this Agreement.
SECTION 2.3 Noncontravention. Neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any constitution, statue, regulation, rule, injunction,
judgment, order, decree, ruling, charge or other restriction of any government,
governmental agency or court to which any Seller is
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subject to or (ii) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel or require any notice under any
agreement, contract, lease, license, instrument or other legally binding
arrangement to which any Seller is a party or by which he is bound or to which
any of his assets is subject.
SECTION 2.4 Brokers' Fees. No Seller has 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 for which the Buyer or the Company
could become liable or obligated.
SECTION 2.5 The Shares. Each Seller holds of record and owns beneficially
that number of the issued and outstanding shares of common stock of the Company
indicated on the signature page hereto, free and clear of any restrictions on
transfer (other than restrictions under applicable securities laws), mortgages,
pledges, liens, encumbrances, charges, security interests, options, warrants,
purchase rights, contracts, commitments, equities, claims and demands. No
Seller is a party to any option, warrant, purchase right or other contract or
commitment that could require such Seller to sell, transfer or otherwise dispose
of any capital stock of the Company (other than this Agreement). No Seller is a
party to any voting trust, proxy or other Agreement or understanding with
respect to the voting of any capital stock of the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES CONCERNING THE COMPANY
The Company and Sellers hereby represent and warrant to Buyer, jointly and
severally, that, except as set forth in the Seller Disclosure Schedule:
SECTION 3.1 Organization and Qualification and Other Equity Interests.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Virginia and has the requisite
corporate power and authority necessary to own, lease and operate the properties
it purports to own, lease or operate and to carry on its business as it is now
being conducted. The Company is duly qualified or licensed as a foreign
corporation to do business, and is in good standing, in each jurisdiction where
the character of its properties owned, leased or operated by it or the nature of
its activities makes such qualification or licensing necessary except where the
failure to be so qualified or licensed would not have a Material Adverse Effect.
The Company does not directly or indirectly own any equity or similar interest
in, or any interest convertible into or exchangeable or exercisable for, any
equity or similar interest in, any corporation, partnership, joint venture or
other business association or entity.
SECTION 3.2 Authority. The Company has all necessary corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder and to consummate the transactions contemplated hereby. The execution
and delivery of this
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Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate action on the part of the Company, and no other corporate proceedings
on the part of the Company are necessary to authorize this Agreement or to
consummate the transactions contemplated thereby. This Agreement has been duly
and validly executed and delivered by the Company and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
SECTION 3.3 Articles of Incorporation and By-Laws. Attached to the Seller
Disclosure Schedule are complete and correct copies of the Articles of
Incorporation and By-Laws of the Company as amended to date. Such Articles of
Incorporation and By-Laws are in full force and effect. The Company is not in
violation of any of the provisions of its Articles of Incorporation or By-Laws.
SECTION 3.4 Capitalization. The authorized capital stock of the Company
consists of 25,000 shares of common stock, no par value ("Company Common
Stock"). As of the date hereof, 3,000 shares of Company Common Stock
(constituting all of the Shares) were issued and outstanding, all of which are
validly issued, fully paid and nonassessable, and no shares were held in
treasury. There are no options, warrants or other rights, agreements,
arrangements or commitments of any character relating to the issued or unissued
capital stock of the Company or obligating the Company to issue or sell any
shares of capital stock of, or other equity interests in, the Company. There
are no obligations, contingent or otherwise, of the Company to repurchase,
redeem or otherwise acquire any shares of Company Common Stock.
SECTION 3.5 No Conflict; Required Filings and Consents.
(a) Section 3.5(a) of the Seller Disclosure Schedule includes a list of
(collectively, the "Contracts") (i) all loan agreements, indentures, mortgages,
pledges, conditional sale or title retention agreements, security agreements,
equipment obligations, guaranties, standby letters of credit, equipment leases
or lease purchase agreements to which the Company is a party or by which it is
bound and (ii) all contracts, agreements, commitments or other understandings or
arrangements to which the Company is a party or by which it or any of its
properties or assets are bound or affected, but excluding contracts, agreements,
commitments or other understandings or arrangements entered into in the ordinary
course of business and involving, in each case, payments or receipts by the
Company of less than $25,000 in any single instance but not more than $75,000 in
the aggregate.
(b) (i) The Company has not breached, is not in default under, and has not
received written notice of any breach of or default under, any of the Contracts,
(ii) to the best knowledge of the Sellers, no other party to any of the
Contracts has breached or is in default of any of its obligations thereunder,
and (iii) each of the Contracts is in full force and effect,
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except in any such case for breaches, defaults or failures to be in full force
and effect that are immaterial in amount and significance.
(c) The execution and delivery of this Agreement by the Company and the
Sellers does not, and the performance of this Agreement by the Company and the
Sellers and the consummation of the transactions contemplated hereby will not,
(i) conflict with or violate the Articles of Incorporation or By-Laws of the
Company, (ii) conflict with or violate any federal, foreign, state or provincial
law, rule, regulation, order, permit, judgment or decree (collectively, "Laws")
applicable to the Company or by which any of its properties is bound or
affected, or (iii) result in any breach of or constitute a default (or an event
that with notice or lapse of time or both would become a default under), or
impair the Company's rights or alter the rights or obligations of any third
party under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a security
interest, lien, claim, encumbrance or any other restriction on any of the
properties or assets of the Company pursuant to any Contract.
(d) The execution and delivery of this Agreement by the Company does not,
and the performance of this Agreement by the Company will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any federal, foreign, state or provincial governmental or regulatory
authority except for applicable requirements, if any, of the Securities Act of
1933, as amended, and the rules and regulations thereunder (the "Securities
Act"), the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Exchange Act"), and state securities laws ("Blue
Sky Laws").
SECTION 3.6 Compliance, Permits.
(a) The Company is not in default under or in violation of any Law
applicable to the Company or by which any of its properties is bound or
affected.
(b) The Company holds all material permits, licenses, easements,
variances, exemptions, consents, certificates, orders and approvals from
governmental authorities which are necessary for the operation of the business
of the Company as it is now being conducted (collectively, the "Company
Permits"), except where the failure to hold such Company Permits would not have
a Material Adverse Effect. The Company is in compliance with the terms of the
Company Permits, except where the failure to so comply would not have a Material
Adverse Effect.
SECTION 3.7 Financial Statements.
(a) Attached to the Seller Disclosure Schedule are (i) the unaudited
balance sheet of the Company as of December 31, 1996, together with the related
statement of income, cash flows and stockholders' equity for the year then ended
(the "December 1996 Financial Statements"), and (ii) the unaudited balance sheet
of the Company as of June 30, 1997 and the related statement of income, cash
flows and stockholders' equity for the six months then ended (the
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"June 1997 Financial Statements", and together with the December 1996 Financial
Statements, collectively the "Financial Statements").
(b) Each of the Financial Statements was prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes
thereto), and each fairly presents in all material respects the consolidated
financial position of the Company as at the respective dates thereof and the
consolidated results of its operations, cash flows and stockholder equity for
the periods indicated, except that the Unaudited Financial Statements are
subject to normal and recurring year-end adjustments which were not or are not
expected to be material in amount and do not contain complete footnotes required
by generally accepted accounting principles.
SECTION 3.8 Absence of Certain Changes or Events. Since December 31,
1996, the Company has conducted its business in the ordinary course and there
has not occurred: (a) any Material Adverse Effect; (b) any amendments or changes
in the Articles of Incorporation or By-laws of the Company (other than the
amendments to the Articles of Incorporation and By-laws filed or made on or
about July 9, 1997); (c) any damage to, destruction or loss of any asset of the
Company (whether or not covered by insurance) that has had a Material Adverse
Effect; (d) any material change by the Company in its accounting methods,
principles or practices; (e) any material sale or revaluation by the Company of
any of its assets, including, without limitation, writing off notes or accounts
receivable other than in the ordinary course of business; (f) any other action
or event that would have required the consent of Buyer pursuant to Section 5.1
had such action or event occurred after the date of this Agreement; or (g) any
sale of the property or assets of the Company, except in the ordinary course of
business.
SECTION 3.9 No Undisclosed Liabilities. The Company has no liabilities
(absolute, accrued, contingent or otherwise), except liabilities (a) adequately
provided for in the Financial Statements, (b) incurred since June 30, 1997 in
the ordinary course of business consistent with past practice, or (c) incurred
in connection with this Agreement.
SECTION 3.10 Absence of Litigation. Neither the Company nor any of the
Sellers has received any notice of any claim, action, suit, proceeding or
investigation pending or, to the knowledge of the Company or the Seller,
threatened against the Company or any properties or rights of the Company before
any federal, foreign, state or provincial court, arbitrator or administrative,
governmental or regulatory authority or body.
SECTION 3.11 Employee Benefit Plans, Employment Agreements.
(a) Section 3.11 (a) of the Seller Disclosure Schedule lists all employee
pension plans (as defined in Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA")), all employee welfare plans (as
defined in Section 3(1) of ERISA), and all other bonus, stock option, stock
purchase, incentive, deferred compensation, supplemental retirement, severance
and other similar fringe or employee benefit plans, programs or arrangements,
and any current or former employment or executive compensation agreement,
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written or otherwise, for the benefit of, or relating to, any present or former
employee (including any beneficiary of any such employee) of, or any present or
former consultant (including any beneficiary of any such consultant) to the
Company, any trade or business (whether or not incorporated) which is a member
of a controlled group including the Company or which is under common control
with the Company (an "ERISA Affiliate") within the meaning of Section 414 of the
Code (all such plans, practices, programs and arrangements are referred to as
the "Company Employee Plans"). There have been made available to Buyer copies
of (i) the most recent annual report on Form 5500 series, with accompanying
schedules and attachments, filed with respect to each Company Employee Plan
required to make such a filing, and (ii) the most recent Internal Revenue
Service determination letter with respect to each Company Employee Plan intended
to be qualified under Section 401(a) of the Code.
(b) (i) None of the Company Employee Plans promises or provides retiree
medical or other retiree welfare benefits to any person, and neither the Company
nor any ERISA Affiliate has ever maintained, contributed to, or been required to
contribute to, any plan that is or was a "multiemployer plan" as such term is
defined in Section 3(37) of ERISA, a pension plan subject to Title IV of ERISA
or a plan subject to Part 3 of Title I of ERISA; (ii) there has been no
"prohibited transaction," as such term is defined in Section 406 of ERISA and
Section 4975 of the Code, with respect to any Company Employee Plan, which could
result in any material liability of the Company; (iii) all Company Employee
Plans are in compliance in all material respects with the requirements
prescribed by any and all Laws (including ERISA and the Code), currently in
effect with respect thereto (including all applicable requirements for
notification to participants or the Department of Labor, Internal Revenue
Service (the "IRS") or Secretary of the Treasury), and the Company has performed
all material obligations required to be performed by it under, is not in any
material respect in default under or violation of, and have no knowledge of any
default or violation by any other party to, any of the Company Employee Plans;
(iv) each Company Employee Plan intended to qualify under Section 401(a) of the
Code and each trust intended to qualify under Section 501(a) of the Code is the
subject of a favorable determination letter from the IRS, and nothing has
occurred which may reasonably be expected to impair such determination; and (v)
there are no lawsuits or other claims (other than claims for benefits in the
ordinary course) pending or, to the best knowledge of the Company, threatened
with respect to any Company Employee Plan.
(c) Section 3.11(c) of the Seller Disclosure Schedule sets forth a true
and complete list of each current or former employee, officer or director of the
Company who holds (i) any option to purchase Company Common Stock as of the date
hereof, together with the number of shares of Company Common Stock subject to
such option, the option price of such option (to the extent determined as of the
date hereof), whether such option is intended to qualify as an incentive stock
option within the meaning of Section 422(b) of the Code (an "ISO"), and the
expiration date of such option; (ii) any other right, directly or indirectly, to
acquire Company Common Stock, together with the number of shares of Company
Common Stock subject to such right. Section 3.11(c) of the Seller Disclosure
Schedule also sets forth the total number of such ISOs, such nonqualified
options and such other rights.
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(d) Section 3.11(d) of the Seller Disclosure Schedule sets forth a true
and complete list of: (i) all employment agreements with officers of the
Company; (ii) all agreements with consultants who are individuals obligating the
Company to make annual cash payments in an amount exceeding $50,000 (iii) all
employees of, or consultants to, the Company who have executed a non-competition
agreement with the Company; (iv) all severance agreements, programs and policies
of the Company with or relating to its employees, in each case with outstanding
commitments exceeding $50,000, excluding programs and policies required to be
maintained by law; and (v) all plans, programs, agreements and other
arrangements of the Company with or relating to its employees which contain
change in control provisions.
SECTION 3.12 Labor Matters. (i) There are no controversies pending or,
to the knowledge of the Company or the Sellers, threatened between the Company
and any of its employees; (ii) the Company is not a party to any collective
bargaining agreement or other labor union contract applicable to persons
employed by the Company, nor does the Company or any Seller know of any
activities or proceedings of any labor union to organize any such employees; and
(iii) neither the Company nor any Seller has knowledge of any strikes,
slowdowns, work stoppages, lockouts, or threats thereof, by or with respect to
any employees of the Company.
SECTION 3.13 Restrictions on Business Activities. Except for this
Agreement, to the best of the Sellers' or the Company's knowledge, there is no
agreement, judgement, injunction, order or decree binding upon the Company or
any other person which has or could reasonably be expected to have the effect of
prohibiting or materially impairing any business practice of the Company as
currently conducted by the Company.
SECTION 3.14 Title to Property. The Company has good and marketable
title to all of its properties and assets, free and clear of all liens, charges
and encumbrances, except liens for taxes not yet due and payable and such liens
or other imperfections of title, if any, as do not materially detract from the
value of or interfere with the present use of the property affected thereby or
which would have a Material Adverse Effect; and, to the knowledge of the Sellers
and the Company, all leases pursuant to which the Company leases from others
real or personal property, are in good standing, valid and effective in
accordance with their respective terms, and there is not, to the knowledge of
the Sellers and the Company, under any of such leases, any existing default or
event of default (or event which with notice or lapse of time, or both, would
constitute a default thereunder). The Company does not own any real property.
SECTION 3.15 Taxes.
(a) For purposes of this Agreement, "Tax" or "Taxes" shall mean taxes,
fees, levies, duties, tariffs, imposts, and governmental impositions or charges
of any kind in the nature of (or similar to) taxes, payable to any federal,
state, local or foreign taxing authority, including, without limitation, (i)
income, franchise, profits, gross receipts, ad valorem, net worth, value added,
sales, use, service, real or personal property, special assessments, capital
stock, license, payroll, withholding, employment, social security, workers'
compensation,
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unemployment compensation, utility, severance, production, excise, stamp,
occupation, premiums, windfall profits, transfer and gains taxes, and (ii)
interest, penalties, additional taxes and additions to tax imposed with respect
thereto; and "Tax Returns" shall mean returns, reports, and information
statements with respect to Taxes required to be filed with the IRS or any other
federal, foreign, state or provincial taxing authority, domestic or foreign,
including, without limitation, consolidated, combined and unitary tax returns.
(b) (i) all Tax Returns of, relating to or which include the Company which
are required to have been filed have been filed on a timely basis with the
appropriate authorities and all such Tax Returns are true, correct and complete
in all respects, (ii) all Taxes required to have been paid by the Company have
been paid in full on a timely basis to the appropriate authorities, and (iii)
all Taxes or other amounts required to have been collected or withheld by the
Company have been timely and properly collected or withheld.
(c) (i) no Taxing authority has asserted in writing any adjustment,
deficiency, or assessment that could result in additional Tax for which the
Company is or may be liable, (ii) there is no pending audit, examination,
investigation, dispute, proceeding or claim for which the Company has received
notice relating to any Tax for which the Company is or may be liable, (iii) no
statute of limitations with respect to any Tax for which the Company is or may
be liable has been waived or extended by any of the Sellers or the Company, (iv)
the due date of any Tax Returns that the Company is required to file has not
been extended, and (v) the Company is not a party to any Tax sharing or Tax
allocation agreement, arrangement or understanding.
(d) There are no liens on any of the assets of the Company which arose in
connection with any failure or asserted failure to pay any Tax, other than liens
for current Taxes not yet due and payable.
(e) The Company is not a party to any contract, agreement, plan or
arrangement that, individually or collectively, could give rise to any payment
that would not be deductible by reason of Section 162, 280G or 404 of the Code.
(f) The Company has not been a member of an affiliated group filing a
consolidated federal income Tax Return, and the Company is not liable for the
Taxes of any person under Treasury Regulation 1.1502-6 (or any similar provision
of state, local, or foreign law) as transferee or successor, by contract or
otherwise.
(g) The Company at all times since January 1, 1993 has been an S
corporation within the meaning of Section 1361 of the Code.
(h) Copies of (i) any Tax examinations, (ii) extensions of statutory
limitations, (iii) the federal, state and local income Tax Returns of the
Company, and (iv) substantive correspondence between the Company and all Taxing
authorities for its last three (3) taxable
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years have previously been furnished to the Buyer and such Tax Returns are true,
correct and complete.
SECTION 3.16 Environmental Matters. The Company: (i) has obtained all
approvals (collectively, the "Environmental Approvals") which are required to be
obtained under all applicable federal, state, foreign or local laws or any
regulation, code, plan, order, decree, judgment, notice or demand letter issued,
entered, promulgated or approved thereunder relating to pollution or protection
of the environment, including laws relating to emissions, discharges, releases
or threatened releases of pollutants, contaminants, or hazardous or toxic
materials or wastes into ambient air, surface water, ground water, or land or
otherwise relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of pollutants, contaminants or
hazardous or toxic materials or wastes by the Company or its respective agents
("Environmental Laws"); (ii) is in compliance with all terms and conditions of
such required Environmental Approvals, and also are in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in applicable Environmental
Laws; and (iii) as of the date hereof, is not aware of nor has received notice
of any past or present violations of Environmental Laws or any event, condition,
circumstance, activity, practice, incident, action or plan which is reasonably
likely to interfere with or prevent continued compliance with or which would
give rise to any common law or statutory liability, or otherwise form the basis
of any claim, action, suit or proceeding, against the Company based on or
resulting from the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling, or the emission, discharge or release
into the environment, of any pollutant, contaminant or hazardous or toxic
material or waste.
SECTION 3.17 Intellectual Property. The patents, patent applications,
trademarks, service marks, trade names, corporate names, copyrights, trade
secrets or other proprietary rights necessary to the conduct of the business of
the Company are owned by or licensed to the Company and listed in Section 3.17
of the Seller Disclosure Schedule. The Company has not licensed from any third
party any proprietary rights or, infringed, misappropriated or otherwise
conflicted with any proprietary rights of any third parties. To the knowledge
of the Sellers and the Company, no activity of any third party infringes upon
the rights of the Company to the items listed in Section 3.17 of the Seller
Disclosure Section. The Company has good title to all of the trademarks and
trade names listed in Section 3.17 of the Seller Disclosure Schedule hereto free
and clear of any lien, charge, license or other encumbrance.
SECTION 3.18 Immigration Compliance.
(a) The Company is in compliance with all applicable foreign, federal,
state and local laws, rules, directives and regulations relating to the
employment authorization of its employees (including, without limitation, the
Immigration Reform and Control Act of 1986, as amended and supplemented, and
Section 212(n) and 274A of the Immigration and Nationality Act, as amended and
supplemented, and all implementing regulations relating thereto), and the
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Company has not employed nor is it currently employing any unauthorized aliens
(as such term is defined under 8 CFR 27a.1(a)).
(b) The Company has not received any notice from the Immigration and
Naturalization Service (the "INS") or the U.S. Department of Labor (the "DOL")
of the disapproval or denial of any visa petition or entry permit pending before
the INS or labor certification pending before the DOL on behalf of any employee
or prospective employee of the Company.
(c) Section 3.17 (c) of the Seller Disclosure Schedule contains a true,
complete and accurate list of all non-immigrant or immigrant visa petitions and
entry permits pending before the INS and labor certifications pending before the
DOL on behalf of any of the employees or prospective employees of the Company.
(d) Since the approval of each of their respective visa petitions, there
has been no material change in the terms and conditions of employment of any
employees of the Company, provided that it is acknowledged that certain
employees from time to time unilaterally breach the terms of their employment
with the Company.
(e) The Company shall have delivered to Buyer by the Closing Date true,
accurate and complete copies of all visa petitions, entry permits and visa
applications (and all supporting documents) submitted to the INS for all foreign
employees and prospective foreign employees of the Company.
SECTION 3.19 Insurance. Section 3.19 of the Seller Disclosure Schedule
lists each insurance policy maintained by the Company with respect to the
Company's properties, assets, and operations, and sets forth the date of
expiration of each such insurance policy. All of such insurance policies are in
full force and effect. The Company is not in default with respect to its
obligations under any such insurance policies and to the best knowledge of the
Sellers and the Company, no other party is in default with respect to its
obligation under any such insurance policies.
SECTION 3.20 Accounts Receivable. The accounts receivable of the Company
as reflected in the most recent Financial Statements, to the extent uncollected
on the date hereof and the accounts receivable reflected on the books of the
Company are valid and existing and represent monies due, and the Company has
made reserves adequate for receivables not collectible in the ordinary course of
business, and (subject to the aforesaid reserves) are subject to no refunds or
other adjustments and to no defenses, rights of setoff, assignments,
restrictions, encumbrances or conditions enforceable by third parties on or
affecting any thereof, except for such refunds, adjustments, defenses, rights of
setoff, assignments, restrictions, encumbrances or conditions as would not,
individually or in the aggregate, have a Material Adverse Effect.
SECTION 3.21 Brokers. No broker, finder or investment banker, other than
Xxxxx Xxxxxx & Company ("EMC"), the fees and expenses of which will be paid by
the Sellers, is
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entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Company or the Sellers. The Company has heretofore
furnished to Buyer a complete and correct copy of all agreements between the
Company and EMC pursuant to which such firm would be entitled to any payment
relating to the transactions contemplated hereunder.
SECTION 3.22 Change in Control Payments. The Company is neither a party
nor subject to any plan, program or agreement pursuant to which payments may be
required or acceleration of benefits may be required upon a change of control of
the Company.
SECTION 3.23 Expenses. Section 3.23 of the Seller Disclosure Schedule
sets forth a description of all of the estimated expenses of the Company which
the Company expects to incur, or has incurred, in connection with the
transactions contemplated by this Agreement.
SECTION 3.24 Full Disclosure. No representation or warranty made by the
Sellers or the Company contained in this Agreement and no statement contained in
any certificate or schedule furnished or to be furnished by the Company or the
Sellers to Buyer in, or pursuant to the provisions of, this Agreement, including
without limitation the Seller Disclosure Schedule, contains or shall contain any
untrue statement of a material fact or omits or will omit to state any material
fact necessary, in the light of the circumstances under which it was made, in
order to make statements herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Buyer hereby represents and warrants to the Company and the Sellers that,
except as set forth in the written disclosure schedule delivered on or prior to
the date hereof by Buyer to the Sellers that is arranged in paragraphs
corresponding to the numbered and lettered paragraphs contained in this Article
IV (the "Buyer Disclosure Schedule"):
SECTION 4.1 Organization and Qualification; Subsidiaries. Each of Buyer
and its subsidiaries is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and has
the requisite corporate power and authority necessary to own, lease and operate
the properties it purports to own, operate or lease and to carry on its business
as it is now being conducted. Each of Buyer and its subsidiaries is duly
qualified or licensed as a foreign corporation to do business, and is in good
standing, in each jurisdiction where the character of its properties owned,
leased or operated by it or the nature of its activities makes such
qualification or licensing necessary, except for such failures to be so duly
qualified or licensed and in good standing that would not reasonably be expected
to have a Material Adverse Effect.
SECTION 4.2 Charter and By-Laws. Buyer has heretofore furnished to the
Company a complete and correct copy of its Articles of Organization and By-Laws,
as amended to date.
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Such Articles of Organization and By-Laws are in full force and effect. Buyer
is not in violation of any of the provisions of its Articles of Organization or
By-Laws.
SECTION 4.3 Authority Relative to this Agreement. Buyer has all
necessary corporate power and authority to execute and deliver this Agreement
and the Escrow Agreement and to perform its obligations hereunder and thereunder
and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement and the Escrow Agreement by Buyer and
the consummation by Buyer of the transactions contemplated hereby and thereby
have been duly and validly authorized by all necessary corporate action on the
part of Buyer, and no other corporate proceedings on the part of Buyer are
necessary to authorize this Agreement and the Escrow Agreement or to consummate
the transactions contemplated hereby and thereby. Each of this Agreement and
the Escrow Agreement has been duly and validly executed and delivered by Buyer
and, assuming the due authorization, execution and delivery by each of the other
parties hereto, constitutes a legal, valid and binding obligation of Buyer
enforceable against it in accordance with its terms.
SECTION 4.4 No Conflict, Required Filings and Consents.
(a) The execution and delivery of this Agreement by Buyer does not, and
the performance of this Agreement by Buyer will not, (i) conflict with or
violate the Articles of Organization or By-Laws of Buyer, (ii) conflict with or
violate any Law applicable to Buyer or any of its subsidiaries or by which its
or their respective properties are bound or affected, or (iii) result in any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, or impair Buyer's or any of its
subsidiaries' rights or alter the rights or obligations of any third party
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the properties or assets of Buyer or any of its subsidiaries pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Buyer or any of its
subsidiaries is a party or by which Buyer or any of its subsidiaries or its or
any of their respective properties are bound or affected, except in any such
case for any such conflict, violation, breach, default or other occurrence that
would not have a Material Adverse Effect.
(b) The execution and delivery of this Agreement by Buyer does not, and
the performance of this Agreement by Buyer will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Securities Act, the Exchange Act, and
Blue Sky Laws, and (ii) where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
have a Material Adverse Effect.
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SECTION 4.5 SEC Filings; Financial Statements.
(a) Buyer has filed all forms, reports and documents required to be filed
with the Securities and Exchange Commission (the "SEC") and has heretofore
delivered to the Company, in the form filed with the SEC, (i) its Annual Report
on Form 10-K for the fiscal year ended June 29, 1996 (the "Buyer Form 10-K"),
(ii) all other reports or registration statements filed by Buyer with the SEC
since the date of the filing of the Buyer Form 10-K, and (iii) all amendments
and supplements to all such reports and registration statements filed by Buyer
with the SEC (collectively, the "Buyer SEC Reports"). The Buyer SEC Reports (i)
were prepared in all material respects in accordance with the requirements of
the Securities Act or the Exchange Act, as the case may be, and (ii) did not at
the time they were filed (or if amended or superseded by a filing prior to the
date of this Agreement, then on the date of such filing) contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading. None of
Buyer's subsidiaries is required to file any forms, reports or other documents
with the SEC.
(b) Each of the consolidated financial statements (including, in each
case, any related notes thereto) contained in the Buyer SEC Reports has been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis throughout the periods involved (except as may be indicated
in the notes thereto) and each fairly presents in all material respects the
consolidated financial position of Buyer and its subsidiaries as at the
respective dates thereof and the consolidated results of its operations and cash
flows for the periods indicated, except that the unaudited interim financial
statements were or are subject to normal and recurring year-end adjustments
which were not or are not expected to be material in amount.
SECTION 4.6 Purchase for Investment. The Shares to be purchased by Buyer
pursuant to this Agreement are being acquired by Buyer for investment only and
not with a view for any public distribution thereof.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE CLOSING
SECTION 5.1 Conduct of Business by the Company Pending the Closing.
Except as otherwise set forth in Section 5.1 of the Seller Disclosure Schedule,
the Company and the Sellers covenant and agree that, during the period from the
date of this Agreement and continuing until the earlier of the termination of
this Agreement or the Closing, unless Buyer shall otherwise agree in writing,
the Company shall, and the Sellers shall cause the Company to, conduct its
business only in, and the Company shall not, and the Sellers shall cause the
Company not to, take any action except in, the ordinary course of business and
in a manner consistent with past practice; and the Company shall use all
reasonable commercial efforts to preserve substantially intact the business
organization of the Company, to keep available the
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services of the present officers, employees and consultants of the Company and
to preserve the present relationships of the Company with customers, suppliers
and other persons with which the Company has business relations. By way of
amplification and not limitation, except as contemplated by this Agreement, the
Company shall not, and the Sellers shall cause the Company not to, during the
period from the date of this Agreement and continuing until the earlier of the
termination of this Agreement or the Closing, directly or indirectly do, or
propose to do, any of the following without the prior written consent of Buyer:
(a) amend or otherwise change the Articles of Incorporation or By-Laws of
the Company;
(b) issue, sell, pledge, dispose of or encumber, or authorize the
issuance, sale, pledge, disposition or encumbrance of, any shares of capital
stock of any class, or any options, warrants, convertible securities or other
rights of any kind to acquire any shares of capital stock, or any other
ownership interest (including, without limitation, any phantom interest) in the
Company;
(c) sell, pledge, dispose of or encumber any assets (tangible or
intangible) of the Company except for (i) dispositions of obsolete or worthless
assets and (ii) sales of immaterial assets not in excess of $10,000 in the
aggregate;
(d) (i) declare, set aside, make or pay any dividend or other
distribution (whether in cash, stock or property or any combination thereof) in
respect of any of its capital stock (ii) split, combine or reclassify any of its
capital stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of or in substitution for shares of its
capital stock, or (iii) amend the terms or change the period of exercisability
of, purchase, repurchase, redeem or otherwise acquire, any of its securities
including without limitation, shares of Company Common Stock or any option,
warrant or right, directly or indirectly, to acquire shares of Company Common
Stock, or propose to do any of the foregoing;
(e) (i) acquire (by merger, consolidation, or acquisition of stock or
assets) any corporation, partnership or other business organization or division
thereof; (ii) incur any indebtedness for borrowed money or issue any debt
securities or assume, guarantee or endorse or otherwise as an accommodation
become responsible for, the obligations of any person or, except in the ordinary
course of business consistent with past practice, make any loans or advances;
(iii) enter into or amend any material contract or agreement; (iv) authorize any
capital expenditures or purchase of fixed assets which are, in the aggregate, in
excess of $25,000 for the Company; or (v) enter into or amend any contract,
agreement, commitment or arrangement to effect any of the matters prohibited by
this Section 5.1(e);
(f) increase the compensation payable or to become payable to its
officers or employees, or grant any severance or termination pay to, or enter
into any employment or severance agreement with any director, officer or other
employee of the Company, or establish, adopt, enter into or amend any collective
bargaining, bonus, profit sharing, thrift,
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compensation, stock option, restricted stock, pension, retirement, deferred
compensation, employment, termination, severance or other plan, agreement,
trust, fund, policy or arrangement for the benefit of any current or former
directors, officers or employees, except, in each case, as may be required by
law;
(g) take any action to change accounting policies or procedures
(including, without limitation, procedures with respect to revenue recognition,
payments of accounts payable and collection of accounts receivable);
(h) make any material tax election inconsistent with past practice or
settle or compromise any material federal, state, local or foreign tax liability
or agree to an extension of a statute of limitations;
(i) pay, discharge or satisfy any claims, liabilities or obligations
(absolute, accrued, asserted or unasserted, contingent or otherwise), other than
the payment, discharge or satisfaction in the ordinary course of business and
consistent with past practice of liabilities reflected or reserved against in
the Financial Statements or incurred in the ordinary course of business and
consistent with past practice; or
(j) take, or agree in writing or otherwise to take, any of the actions
described in Sections 5.1 (a) through (i) above, or any action which would make
any of the representations or warranties of the Company contained in this
Agreement untrue or incorrect or prevent the Company from performing or cause
the Company not to perform its covenants hereunder.
SECTION 5.2 No Solicitation.
(a) The Sellers and the Company shall not, and the Sellers shall cause the
Company not to, directly or indirectly, through any officer, director, employee,
representative or agent of the Company or any Seller, (i) solicit, initiate or
encourage the initiation of any inquiries or proposals regarding any merger,
sale of substantial assets, sale of shares of capital stock (including without
limitation by way of a tender offer) or similar transactions involving the
Company other than the transactions contemplated by this Agreement (any of the
foregoing inquiries or proposals being referred to herein as an "Acquisition
Proposal"), (ii) engage in negotiations or discussions concerning, or provide
any nonpublic information to any person relating to, any Acquisition Proposal or
(iii) agree to, approve or recommend any Acquisition Proposal.
(b) The Company shall immediately notify Buyer after receipt of any
Acquisition Proposal, or any modification of or amendment to any Acquisition
Proposal, or any request for nonpublic information relating to the Company in
connection with an Acquisition Proposal or for access to the properties, books
or records of the Company by any person or entity that informs the Board of
Directors of the Company that it is considering making, or has made, an
Acquisition Proposal. Such notice to Buyer shall be made orally and in writing.
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(c) The Company and the Sellers shall immediately cease and cause to be
terminated any existing discussions or negotiations with any persons (other than
Buyer) conducted heretofore with respect to any of the foregoing. The Company
agrees not to release any third party from the confidentiality provisions of any
confidentiality agreement to which the Company is a party.
(d) The Company shall ensure that the officers, directors, employees,
representatives and agents of the Company and any investment banker or other
advisor or representative retained by the Company are aware of the restrictions
described in this Section 5.2.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Access to Information; Confidentiality. Upon reasonable
notice, the Company shall afford to Buyer's officers, employees, accountants,
counsel and other representatives, reasonable access, during the period from the
date of this Agreement to the Closing Date, to all its properties, books,
contracts, commitments and records and, during such period, the Company shall
furnish promptly to Buyer all information concerning its business, properties
and personnel as Buyer may reasonably request, and shall make available to Buyer
the appropriate individuals (including attorneys, accountants and other
professionals) for discussion of its business, properties and personnel as Buyer
may reasonably request. Notwithstanding the foregoing, however, Buyer shall not
contact the employees or customers of the Company without the prior written
consent of the Company.
SECTION 6.2 Consents; Approvals. The Company and Buyer shall each use
their best efforts to obtain all consents, waivers, approvals, authorizations or
orders (including, without limitation, all United States governmental and
regulatory rulings and approvals), and the Company and Buyer shall make all
filings (including, without limitation, all filings with United States
governmental or regulatory agencies) required in connection with the
authorization, execution and delivery of this Agreement by the Company and Buyer
and the consummation by them of the transactions contemplated hereby, in each
case as promptly as practicable. The Company and Buyer shall furnish promptly
all information required to be included in any application or other filing to be
made pursuant to the rules and regulations of any United States or foreign
governmental body in connection with the transactions contemplated by this
Agreement.
SECTION 6.3 Notification of Certain Matters. The Company shall give
prompt notice to Buyer, and Buyer shall give prompt notice to the Company, of
(i) the occurrence or nonoccurrence of any event the occurrence or nonoccurrence
of which would be likely to cause any representation or warranty contained in
this Agreement to become materially untrue or inaccurate, or (ii) any failure of
the Company or Buyer, as the case may be, materially to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by it
hereunder; provided, however, that the delivery of any notice pursuant to this
Section
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shall not limit or otherwise affect the remedies available hereunder to the
party receiving such notice; and provided further that failure to give such
notice shall not be treated as a breach of covenant for the purposes of Sections
7.2(a) or 7.3(a) unless the failure to give such notice results in material
prejudice to the other party.
SECTION 6.4 338(h)(10) Election. Sellers shall (i) join the Buyer in
timely making an election under Section 338(h)(10) of the Code (and any
comparable election under state or local Tax law) with respect to the Company
and (ii) cooperate with the Buyer in the completion and timely filing of such
election in accordance with the provisions of Treasury Regulation (S)
1.338(h)(10)-1 (or any comparable provisions of state or local Tax law) or any
successor provision. Each party represents that it is qualified to make such
election. Buyer and Sellers agree that the fair market value of the assets of
the Company is as set forth in Exhibit 6.4. Neither Buyer nor Sellers (nor any
of their respective affiliates) shall take any position on any Tax return or
with any taxing authority that is inconsistent with the agreed fair market
values set forth in Exhibit 6.4; provided that Buyer and Sellers (and any of
their respective affiliates) may take a tax position consistent with any
examination adjustments made by the IRS or applicable state, local or foreign
taxing authorities.
SECTION 6.5 Further Action/Tax Treatment. Upon the terms and subject
to the conditions hereof each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all other things necessary, proper or advisable to consummate and make
effective as promptly as practicable the transactions contemplated by this
Agreement, to obtain in a timely manner all necessary waivers, consents and
approvals and to effect all necessary registrations and filings, and otherwise
to satisfy or cause to be satisfied all conditions precedent to its obligations
under this Agreement.
SECTION 6.6 Public Announcements. Buyer, the Sellers and the Company
shall consult with each other before issuing any press release with respect to
the transaction contemplated by this Agreement and shall not issue any such
press release or make any such public statement without the prior consent of the
other party, which shall not be unreasonably withheld; provided, however, that
Buyer may, without the prior consent of any of the Sellers or the Company, issue
such press release or make such public statement as may upon the advice of
counsel be required by law or the rules and regulations of the Nasdaq National
Market if it has used reasonable efforts to consult with the Sellers and the
Company prior thereto.
SECTION 6.7 Conveyance Taxes. Buyer, the Sellers and the Company shall
cooperate in the preparation, execution and filing of all returns,
questionnaires, applications, or other documents regarding any real property
transfer or gains, sales, use, transfer, value added, stock transfer and stamp
taxes, any transfer, recording, registration and other fees, and any similar
taxes which become payable in connection with the transactions contemplated
hereby that are required or permitted to be filed at or before the Closing.
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ARTICLE VII
CONDITIONS TO CLOSING
SECTION 7.1 Conditions to Obligation of Each Party to Closing. The
respective obligations of each party to consummate the purchase and sale of the
Shares at the Closing shall be subject to the satisfaction at or prior to the
Closing of the following conditions:
(a) No Injunctions or Restraints; Illegality. No temporary restraining
order, preliminary or permanent injunction or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the purchase and sale of the Shares shall be in effect, nor
shall any proceeding brought by any administrative agency or commission or other
governmental authority or instrumentality, seeking any of the foregoing be
pending; and there shall not be any action taken, or any statute, rule,
regulation or order enacted, entered, enforced or deemed applicable to the sale
of the Shares, which makes the consummation of the sale of the Shares illegal;
and
(b) Governmental Actions. There shall not have been instituted, pending
or threatened any action or proceeding (or any investigation or other inquiry
that might result in such an action or proceeding) by any governmental authority
or administrative agency before any governmental authority, administrative
agency or court of competent jurisdiction, nor shall there be in effect any
judgment, decree or order of any governmental authority, administrative agency
or court of competent jurisdiction, in either case, seeking to prohibit or limit
Buyer from exercising all material rights and privileges pertaining to its
ownership or operation of the Company following the Closing or the ownership or
operation by Buyer or any of its subsidiaries of all or a material portion of
the business or assets of Buyer or any of its subsidiaries, as a result of the
transactions contemplated by this Agreement.
SECTION 7.2 Additional Conditions to Obligations of Buyer. The
obligation of Buyer to purchase the Shares at the Closing is also subject to the
following conditions:
(a) Representations and Warranties. The representations and warranties
of the Company and the Sellers contained in this Agreement shall have been true
and correct in all material respects at and as of the date made, and shall be
true and correct, individually and in the aggregate, in all material respects,
as of the Closing Date with the same effect as though made on and as of the
Closing Date, and Buyer shall have received a certificate to such effect signed
by each of the Sellers and on behalf of the Company by the President and the
Treasurer of the Company;
(b) Agreements and Covenants. Each of the Sellers and the Company shall
have performed or complied in all material respects with all agreements and
covenants required by this Agreement to be performed or complied with by the
Sellers or the Company at or prior to
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the Closing, and Buyer shall have received a certificate to such effect signed
by each of the Sellers and on behalf of the Company by the President and the
Treasurer of the Company;
(c) Consents Obtained. All consents, waivers, approvals, authorizations
or orders required to be obtained, and all filings required to be made, by the
Sellers or the Company for the due authorization, execution and delivery of this
Agreement and the consummation by it of the transactions contemplated hereby
shall have been obtained and made by the Sellers or the Company;
(d) Opinion of Counsel to the Company. Buyer shall have received an
opinion of XxXxxxx Xxxx, A Professional Corporation, counsel to the Company, in
form and substance reasonably satisfactory to Buyer.
(e) Employment Agreements. The Company shall have entered into an
employment agreement with each of Messrs. Xxxxxxxxx, Xxxxxxxxx and Xxxxxxxxx in
substantially the form attached hereto as Exhibit 7.2(e);
(f) Noncompetition Agreements. The Company shall have entered into a
noncompetition agreement with each of Messrs. Xxxxxxxxx, Xxxxxxxxx and Xxxxxxxxx
in substantially the form attached hereto as Exhibit 7.2(f); and
(g) Escrow Agreement. Each of the Sellers, the Buyer and the Escrow Agent
shall have entered into an escrow agreement (the "Escrow Agreement") in form and
substance reasonably satisfactory to the parties hereto.
SECTION 7.3 Additional Conditions to Obligation of the Sellers. The
obligations of the Sellers to sell the Shares at the Closing are also subject to
the following conditions:
(a) Representations and Warranties. The representations and warranties
of the Buyer contained in this Agreement shall have been true and correct in all
material respects at and as of the date made, and shall be true and correct,
individually and in the aggregate, in all material respects, as of the Closing
Date with the same effect as though made on and as of the Closing Date, and the
Sellers shall have received a certificate to such effect signed by the President
and the Chief Financial Officer of the Buyer;
(b) Agreements and Covenants. Buyer shall have performed or complied in
all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it on or prior to the Closing, and
the Sellers shall have received a certificate to such effect signed by the
President and the Chief Financial Officer of the Buyer;
(c) Consents Obtained. All consents, waivers, approvals, authorizations
or orders required to be obtained, and all filings required to be made, by the
Buyer for the
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authorization, execution and delivery of this Agreement and the consummation by
them of the transactions contemplated hereby shall have been obtained and made
by the Buyer; and
(d) Opinion of Counsel to Buyer. The Sellers shall have received an
opinion of counsel to the Buyer, in form and substance satisfactory to the
Sellers.
(e) Escrow Agreement. Each of the Sellers, the Buyer and the Escrow Agent
shall have entered into the Escrow Agreement in form and substance reasonably
satisfactory to the parties hereto.
ARTICLE VIII
TERMINATION
SECTION 8.1 Termination. This Agreement may be terminated at any time
prior to the Closing:
(a) by mutual written consent duly authorized by the Boards of Directors
of the Buyer and the Company; or
(b) by either Buyer or the Company if the Closing shall not have been
consummated by August 31, 1997 (provided that the right to terminate this
Agreement under this Section 8.1(b) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of or
resulted in the failure of the Closing to occur on or before such date); or
(c) by either Buyer or the Company if a court of competent jurisdiction
or governmental, regulatory or administrative agency or commission shall have
issued a nonappealable final order, decree or ruling or taken any other action
having the effect of permanently restraining, enjoining or otherwise prohibiting
the purchase and sale of the Shares (provided that the right to terminate this
Agreement under this Section 8.1(c) shall not be available to any party who has
not complied with its obligations under Section 6.2 and such noncompliance
materially contributed to the issuance of any such order, decree or ruling or
the taking of such action); or
(d) by Buyer, (i) if any representation or warranty of the Company or the
Sellers set forth in this Agreement shall be untrue when made, or (ii) upon a
breach of any covenant or agreement on the part of the Sellers or the Company
set forth in this Agreement, such that the conditions set forth in Section
7.2(a) or 7.2(b) would not be satisfied (either (i) or (ii) above being a
"Terminating Breach"), provided, that, if such Terminating Breach is curable
prior to August 31, 1997 by the Sellers or the Company through the exercise of
their or its reasonable best efforts and for so long as the Sellers and the
Company continue to exercise such reasonable best efforts, Buyer may not
terminate this Agreement under this Section 8.1(d); or
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(e) by the Sellers or the Company, (i) if any representation or warranty
of Buyer set forth in this Agreement shall be untrue when made, or (ii) upon a
breach by Buyer of any covenant or agreement set forth in this Agreement, such
that the conditions set forth in Section 7.3(a) or 7.3(b) would not be satisfied
(either (i) or (ii) above being a "Terminating Breach"), provided, that, if such
Terminating Breach is curable prior to August 31, 1997, 1997 by Buyer through
the exercise of its reasonable best efforts and for so long as Buyer continues
to exercise such reasonable best efforts, neither the Sellers nor the Company
may terminate this Agreement under this Section 8.1(e).
SECTION 8.2 Effect of Termination. In the event of the termination of
this Agreement pursuant to Section 8.1, all obligations of the parties hereunder
shall terminate without any liability of any party to any other party (other
than with respect to the provisions of all of Articles 8 and 9, and Sections
10.1, 10.2, 10.7 and 10.12, each of which shall survive any such termination);
provided, however, that no termination shall relieve any party from any
liability arising from or relating to breach prior to termination.
SECTION 8.3 Fees and Expenses. All fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expenses, whether or not the Closing occurs;
provided that the fees and expenses of the Company incurred in connection with
this Agreement and the transaction contemplated hereby shall be deemed to be
expenses of the Sellers.
ARTICLE IX
INDEMNIFICATION
SECTION 9.1 Survival of Representations and Warranties.
(a) The representations and warranties of the Sellers made in this
Agreement and in the documents and certificates delivered in connection herewith
shall survive the Closing for a period of two years from the Closing Date,
provided, however, that (i) the representations and warranties contained in
Sections 2.4, 2.5, 3.1, 3.2 and 3.4 shall survive indefinitely and (ii) the
representations and warranties that relate to Taxes, including without
limitation the representations and warranties set forth in Section 3.15, shall
survive until the expiration of the applicable statutes of limitations for such
Taxes (including any extensions thereof), provided, further, that
representations and warranties with respect to which a claim for indemnification
is made within the applicable survival period shall survive until such claim is
finally determined and paid.
(b) The representations and warranties of the Buyer made in this Agreement
and in the documents and certificates delivered in connection herewith shall
survive the Closing for a period of two years following the Closing Date,
provided, however, that representations and
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warranties with respect to which a claim by redmnification is made within such
two year period shall survive until such claim is finally determined and paid.
(c) No claim for indemnification may be made with respect to a
representation and warranty after the expiration of the applicable survival
period, other than claims based on fraud.
SECTION 9.2 Indemnification by the Sellers. The Sellers, jointly and
severally, (each in his capacity as an indemnifying party, an "Indemnifying
Party") covenants and agrees that they will indemnify, defend, protect, and hold
harmless the Buyer and the Company and each of their respective subsidiaries and
affiliates (each in its capacity as an indemnified party, an "Indemnitee") at
all times from and after the date of this Agreement from and against all claims,
damages, actions, suits, proceedings, demands, assessments, adjustments, costs
and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) (collectively "Damages") incurred
by such Indemnitee as a result of or incident to:
(a) any breach of any representation or warranty of the Sellers set forth
herein or in any certificate or other document delivered in connection herewith
(as each such representation or warranty would read if all qualifications as to
materiality were deleted therefrom);
(b) any breach or nonfulfillment by the Sellers or the Company of, or any
noncompliance by the Sellers or the Company with, any covenant, agreement, or
obligation contained herein or in any certificate or other document delivered in
connection herewith;
(c) any Taxes of any kind relating to or arising in connection with the
transfer of the Shares to the Buyer; and
(d) without limiting the foregoing provisions, any violation prior to the
Closing by the Company or any predecessor of the Company of any Environmental
Law and the presence, emanation, migration, disposal, release or threatened
release of any oil or other petroleum products or hazardous materials or
substances on, within, or to or from any of the properties presently or
previously owned or leased by the Company, or any predecessor of the Company.
SECTION 9.3 Indemnification by the Buyer.
(a) Buyer agrees that, except with respect to any claim which is related,
in whole or in part, to any breach or potential breach or any representation,
warranty or covenant of any of the Sellers or the Company in this Agreement, all
rights to indemnification or exculpation now existing in favor of the directors
or officers of the Company (the "Company Indemnified Parties") as provided in
its Articles of Incorporation or By-Laws shall continue in full force and effect
for a period of not less than three years from the Closing Date; provided,
however, that, in the event any claim or claims are asserted or made within such
three-year period, all rights to indemnification in respect of any such claim or
claims shall continue until disposition
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of any and all such claims. Any determination required to be made with respect
to whether a Company Indemnified Party's conduct complies with the standards set
forth in the Articles of Incorporation or By-Laws of the Company or otherwise
shall be made by independent counsel selected by the Buyer and reasonably
satisfactory to the Company Indemnified Party (whose fees and expenses shall be
paid by the Buyer).
(b) The Buyer (in its capacity as an indemnifying party, an "Indemnifying
Party") covenants and agrees that it will indemnify, defend, protect and hold
harmless each of the Sellers (each in his capacity as an indemnified party, an
"Indemnitee") at all times from and after the date of this Agreement from and
against all Damages incurred by such Indemnitee as a result of or incident to
(a) any breach of any representation or warranty of the Buyer set forth herein
or in any certificate or other document delivered in connection herewith (as
each such representation or warranty would read if all qualifications as to
materiality were deleted therefrom) and any misrepresentation in connection with
this Agreement or the transactions contemplated hereby; and (b) any breach or
nonfulfillment by the Buyer of, or noncompliance by the Buyer with, any
covenant, agreement or obligation contained herein or in any certificate or
other document delivered in connection herewith.
SECTION 9.4 Third Person Claims. Promptly after an Indemnitee has
received notice of or has knowledge of any claim by a person not a party to this
Agreement ("Third Person") or the commencement of any action or proceeding by a
Third Person, the Indemnitee shall give the Indemnifying Party written notice of
such claim or the commencement of such action or proceeding; provided, however,
that the failure to give such notice will not effect the Indemnitees' right to
indemnification hereunder with respect to such claim, action or proceeding,
except to the extent that the Indemnifying Party has been actually prejudiced as
a result of such failure. If the Indemnifying Party notifies the Indemnitee
within 45 days from the receipt of the foregoing notice that he wishes to defend
against the claim by the Third Person, then the Indemnifying Party shall have
the right to assume and control the defense of the claim by appropriate
proceedings with counsel reasonably acceptable to Indemnitee. The Indemnitee
may participate in the defense, at its sole expense of any such claim for which
the Indemnifying Party shall have assumed the defense pursuant to the preceding
sentence, provided that counsel for the Indemnifying Party shall act as lead
counsel in all matters pertaining to the defense or settlement of such claims,
suit or proceedings; provided, however, that Indemnitee shall control the
defense of any claim or proceeding that in Indemnitee's reasonable judgment
could have a material and adverse effect on Indemnitee's business apart from the
payment of money damages and will not materially impact the Indemnifying Party's
'obligations hereunder. The Indemnitee shall be entitled to indemnification for
the reasonable fees and expenses of its counsel for any period during which the
Indemnifying Party has not assumed the defense of any claim. Whether or not the
Indemnifying Party shall have assumed the defense of any claim, neither the
Indemnitee nor the Indemnifying Party shall make any settlement with respect to
any such claim, suit or proceeding without the prior consent of the other, which
consent shall not be unreasonably withheld or delayed. It is understood and
agreed that in situations where failure to settle a claim expeditiously could
have an adverse effect on the party wishing to settle, the failure of a party
controlling the defense to act upon a
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request for consent to such settlement within five business days of receipt of
notice thereof shall be deemed to constitute consent to such settlement for
purposes of this Article 9.
SECTION 9.5 Limitations on Indemnification. No Indemnified Party shall be
entitled to indemnification under this Article 9 for Damages until the aggregate
amount of Damages incurred by such person or persons exceeds $150,000, in which
event such persons shall be entitled to indemnification for the entire aggregate
cumulative amount of all Damages up to an amount not to exceed the Purchase
Price.
SECTION 9.6 Determination of Damages. The parties shall make appropriate
adjustments for tax benefits, insurance coverage and the time value of money
(using the prime rate as announced from time to time by BankBoston, N.A. as the
interest rate) in determining Damages for the purposes of this Article 9.
SECTION 9.7 Method of Payment. The Sellers agree that Escrow Account
established under the Escrow Agreement shall be available to indemnify, protect
and hold harmless the Buyer in respect of any indemnifiable claims. All claims
for indemnification shall be payable in cash and, to the extent there are funds
held in Escrow Account under the Escrow Agreement, shall first be payable from
the Escrow Account.
SECTION 9.8 Other Indemnification Provisions. The indemnification
provisions in this Article 9 are in addition to, and not in derogation of, any
statutory, equitable or common law remedy any party may have for breach of
representation, warranty or covenant; provided, however, that the Buyer
-------- -------
acknowledges and agrees that the foregoing indemnification provisions in this
Article 9 shall be the exclusive remedy of the Buyer for any breach of the
representations and warranties in Article 3 of this Agreement. Buyer agrees
that neither the Sellers nor the Company has made any representation or warranty
with respect to the Company's descriptive memorandum dated March 1997. All
indemnification payments shall be deemed adjustments to the Purchase Price.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.1 Survival, Etc.
(a) The agreements set forth in Article 9 and Section 8.3 shall survive
independently.
(b) Any disclosure made with reference to one or more sections of the
Seller Disclosure Schedule or the Buyer Disclosure Schedule shall be deemed
disclosed only with respect to such section or sections unless it is reasonably
apparent from a reading of such disclosure that it also applies to other
sections in which case it shall also be deemed disclosed with respect to such
other sections.
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SECTION 10.2 Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier to the parties
at the following addresses or sent by electronic transmission, with confirmation
received, to the telecopy numbers specified below (or at such other address or
telecopy number for a party as shall be specified by like notice):
(a) If to the Buyer:
The Registry, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) If to the Sellers, at such persons address shown on the signature
page hereto and if to the Company:
XxXxxxx Group, inc.
000 X. Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Telephone No.: (000) 000-0000
Telecopier No: (000) 000-0000
With a copy to:
Xxxxxxx Xxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
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Telecopier No.: (000) 000-0000
SECTION 10.3 Certain Definitions. For purposes of this Agreement, the
term:
(a) "affiliate" means a person that directly or indirectly, through one
or more intermediaries, controls, is controlled by, or is under common control
with, the first mentioned person; including, without limitation, any partnership
or joint venture in which the first mentioned person (either alone, or through
or together with any other subsidiary) has, directly or indirectly, an interest
of 5% or more;
(b) "business day" means any day other than a day on which banks in The
Commonwealth of Massachusetts are required or authorized to be closed;
(c) "control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as trustee or
executor, of the power to direct or cause the direction of the management or
policies of a person, whether through the ownership of stock, as trustee or
executor, by contract or credit arrangement or otherwise;
(d) "knowledge" means actual knowledge as well as knowledge of any facts
and circumstances that would have been discovered in a reasonable investigation
of the subject matter by the person making the representation or warranty or by
a representative of the entity to whom such knowledge is ascribed.
(e) "person" means an individual, corporation, partnership, association,
trust, unincorporated organization, other entity or group (as defined in Section
13(d)(3) of the Exchange Act); and
(f) "subsidiary" or "subsidiaries" of the Company, Buyer or any other
person means any corporation, partnership, joint venture or other legal entity
of which the Company, the Surviving Corporation, Buyer or such other person, as
the case may be (either alone or through or together with any other subsidiary),
owns, directly or indirectly, more than 50% of the stock or other equity
interests the holders of which are generally entitled to vote for the election
of the board of directors or other governing body of such corporation or other
legal entity.
SECTION 10.4 Amendment. This Agreement may not be amended except by an
instrument in writing signed by the parties hereto.
SECTION 10.5 Waiver. At any time prior to the Closing, any party
hereto may with respect to any other party hereto (a) extend the time for the
performance of any of the obligations or other acts, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto, or (c) waive compliance with any of the agreements or
conditions contained herein. Any such extension or waiver shall be
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valid only if set forth in an instrument in writing signed by the party or
parties to be bound thereby.
SECTION 10.6 Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 10.7 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 fullest extent
possible.
SECTION 10.8 Entire Agreement. This Agreement constitutes the entire
agreement and supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
SECTION 10.9 Assignment. This Agreement shall not be assigned by
operation of law or otherwise, except that Buyer may assign all or any of its
rights hereunder to any wholly-owned subsidiary of the Buyer provided that no
such assignment shall relieve the Buyer of its obligations hereunder.
SECTION 10.10 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 right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement, including, without limitation, by way of subrogation.
SECTION 10.11 Failure or Indulgence Not Waiver; Remedies Cumulative. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude any other or
further exercise thereof or of any other right. All rights and remedies
existing under this Agreement are cumulative to, and not exclusive of, any
rights or remedies otherwise available.
SECTION 10.12 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of The Commonwealth of Massachusetts
without giving effect to the conflict of laws principles thereof.
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SECTION 10.13 Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Buyer, the Company and the Sellers have caused this
Agreement to be executed as of the date first written above.
THE REGISTRY INC.
By:
-------------------------
G. Xxxx Xxxxxx
President
THE XxXXXXX GROUP, INC.
By:
-------------------------
Xxxxxxx X. Xxxxxxxxx
President
-------------------------
Xxxxx X. Xxxxxxxxx
No. of Shares of Common Stock: 1,000
Address:
-------------------------
Xxxxxxx X. Xxxxxxxxx
No. of Shares of Common Stock: 1,000
Address:
-------------------------
Xxxxxx X. Xxxxxxxxx
No. of Shares of Common Stock: 1,000
Address:
