STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT ("Agreement"), dated March 30, l99S, by
and among MEDLEY CREDIT ACCEPTANCE CORPORATION ("Buyer"), a Florida
corporation, whose address is X.X. Xxx 000000, Xxxxx Xxxxxx, Xxxxxxx
00000-0000, W. XXXXXX XXXXXX ("Xxxxxx"), an individual, whose address is 0000
Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000, XXXXX X. SOT ERA ("Xxxxxx"), an
individual, whose address is 00000 X.X. 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000,
XXXXX X. XXXXX, ESQ, ("Spear"), an individual, whose address is 00000 Xxxxxxxx
Xxx, Xxxx Xxxxx, Xxxxxxx 00000, YNC GENERAL PARTNERSHIP ("YNC"), a Florida
general partnership, whose address is 0000 X. Xxxxxxx Xxxx Xxxxxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxxxxx 00000 (Xxxxxx, Xxxxxx, Xxxxx and YNC are,
collectively, the "Sellers"), and PREMIER PROVIDER SERVICES, INC.
("Corporation"), a Florida corporation, whose address is 0000 X. Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, the Sellers own collectively (Xxxxxx-39.6%, Xxxxxx-39.6%,
Spear-19.8% and YNC-1%), all of the authorized, issued and outstanding shares
("Shares") of the Corporation, a Florida corporation which owns and operates an
accounting business, owns and operates a staffing company and does other
business in the state of Florida;
WHEREAS, the Buyer desires to purchase and receive from the Sellers,
and the Sellers desire to sell, assign, transfer and deliver to the Buyer, all
of the Sellers' right, title and interest in the Shares, under the terms and
conditions of this Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:
ARTICLE 1
SALE AND PURCHASE OF INTEREST
1.01 Interest to be Purchased, Transferred or Assigned by the Sellers.
On and as of the date of the closing contemplated by this Agreement ("Closing
Date"), and under the terms and conditions of this Agreement, the Sellers agree
to sell, assign, transfer and delivered to the Buyer, and the Buyer agrees to
purchase and accept from the Sellers, all of the Sellers' right, title and
interest in the Shares.
1.02 No Liens. Encumbrances. Etc. The Shares shall be conveyed to the
Buyer free and clear of all liens, encumbrances, conditions, and restrictions
of any kind.
1.03 Liabilities of the Buyer. On and as of the Closing Date, the
Buyer shall assume and agree to pay, perform and discharge, all liabilities
relating to the Shares arising as of and following the Closing Date.
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1.04 Liabilities Retained by the Sellers. The Sellers will be
obligated to pay, perform and discharge the debts, obligations and liabilities
of the Sellers from:
(a) any and all liabilities of the individual Sellers
relating in any way to the Sellers' individual ownership of the Shares prior to
the Closing Date:
(b) all federal, state, local or other income taxes of the
Sellers.
ARTICLE 2
PURCHASE PRICE
2.01 Price. The purchase price ("Purchase Price") for the Shares shall
be as set forth in Exhibit A hereto.
2.02 Manner of Payment. The Buyer will pay the Purchase Price to the
Sellers as set forth in Exhibit A hereto.
ARTICLE 3
APPORTIONMENT OF EXPENSES AND INCOME
3.01 Accounting Apportionment. For accounting purposes, all loss and
income attributable to the Shares (determined on a cash basis) on or before
11:59 P.M. on December 31, 1997, shall be for the account of the Sellers.
Thereafter, such expense and income shall be for the account of the Buyer. The
parties agree that, if possible7 the S-Corporation status of the Corporation
shall be terminated as of December 31, 1997, and that the parties shall make
all necessary notifications to the Internal Revenue Service to effectuate such
termination as of such date.
ARTICLE 4
THE SELLERS' AND CORPORATION'S REPRESENTATIONS, WARRANTIES AND COVENANTS
The Sellers and the Corporation represent, warrant and covenant to the
Buyer as follows:
4.01 Sellers' Title to Shares. The Sellers have good, absolute and
marketable title to the Shares, free and clear of all liens, encumbrances,
conditions and restrictions of any kind. The Sellers have the complete and
unrestricted right. power and authority to sell, transfer and assign the
Shares, and the transfer and delivery of the Shares to the Buyer pursuant to
this Agreement will be valid and will vest title to the Shares in the Buyer
free and clear of all liens, encumbrances, conditions and restrictions of any
kind.
4.02 Status. The Corporation is a corporation, duly organized, validly
existing, and in good standing under the laws of the state of Florida, with
full power and authority to own and
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lease its properties, and to carry on its business as now being conducted. The
Corporation is qualified to do business and is in good standing in each
jurisdiction in which the character of its business or interests makes such
qualification necessary.
4.03 Approval of Sale. The execution, delivery and performance of this
Agreement, have been duly approved by all requisite corporate action, if any,
on the part of the Corporation and is within the Sellers' powers. The joinder
of no person or entity with the Sellers will be necessary to convey the Shares
to the Buyer, however the parties acknowledge that notification of, and or
consent of, the transfer of the Shares may need to be made to certain third
parties prior to or following Closing, including, but not necessarily limited
to, the State of Florida, the internal Revenue Service, and certain regulatory
agencies. The execution, delivery and performance of this Agreement will not,
to the best of the Corporation's or the Sellers' knowledge and belief, (a)
cause any default in or breach of any provisions of any applicable law, rule or
regulation, or (b) result in the creation of any lien, security interest,
charge or encumbrance upon any of the Shares.
4 04 Capitalization. The Corporation is authorized by its Articles of
Incorporation to issue two hundred (200) shares of common stock all of which
are duly and validly issued and outstanding, nonassessable and owned by the
Sellers, and the Corporation will not issue any additional shares of its stock
prior to the Closing.
4.05 Stock Rights. There are no outstanding options, contracts,
commitments, warrants or other rights of any character affecting or relating in
any manner to the Shares.
4.06 No Litigation or Adverse Events. To the Sellers' knowledge, there
is no suit. claim, action or legal, administrative, arbitration, or other
proceeding or governmental investigation pending or threatened, by or against
the Sellers, Shares or the Corporation.
4.07 Accuracy of Documents. To the Sellers' knowledge, all copies of
contracts, agreements, and documents heretofore delivered or hereafter to be
delivered by the Sellers in connection with the transactions contemplated
hereby are or will be (as the case may be) complete and accurate in all
material respects, and will not have been amended or modified by any oral
agreements.
4.08 Financial Statements. The Corporation has furnished the Buyer
with financial statements of the Corporation as of February 28, 1998. All
fmancia1 statements fairly present the financial condition of the Corporation
at such date. To the best of the Sellers' knowledge there are no matters
pending which would have an adverse or material effect on the financial
statements of the Corporation fro~n February 28, 199S, through the date of
Closing.
4.09 Insurance. The Corporation has maintained, and will maintain
through the Closing on this transaction, insurance coverage against liability,
loss or casualty on all aspects of the Corporation's operations.
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4.10 Tax Returns. The Corporation and the Sellers have duly filed all
federal, state and local tax returns and have paid all federal, state and local
taxes required to be paid with respect to the periods covered by the returns.
4.11 No Orders, Judgments, Decrees. Etc. The Corporation is not
subject to any order, judgment or decree, stipulation or consent or any
agreement with any governmental body or agency which would have a material
adverse effect on the financial position of the Corporation.
4.12 Ordinary Course of Business. Subsequent to the date of the
Corporation's last financial statements, the business of the Corporation has
been conducted as usual in the ordinary course of business and to the best of
the Sellers' knowledge material loss of any of the Corporation's customers and
clients which would have an adverse effect on the Corporation's future
profitability.
4.13 License. Permits. Etc. The Corporation possesses all of the
necessary license and permits to conduct the business of the Corporation and is
in compliance with all applicable federal, state and municipal laws, rules and
regulations.
ARTICLE 5
THE BUYER'S REPRESENTATIONS AND WARRANTIES
The Buyer represents and warrants to the Sellers as follows:
5.01 Status. The Buyer is a corporation, duly organized, validly
existing, and in good standing under the laws of the state of Delaware, with
full power and authority to own and lease its properties, and to carry on its
business as now being conducted. The Buyer is qualified to do business and is
in good standing in each jurisdiction in which the character of its business or
interests makes such qualification necessary.
5.02 Approva1 of Sale. The execution, delivery and performance of this
Agreement, have been duly approved by all requisite corporate action, if any,
on the part of the Buyer and is within the Buyer's powers. The joinder of no
person or entity with the Buyers will be necessary to purchase the Shares by
the Buyer, however the parties acknowledge that notification of, and or consent
of, the transfer of the Shares may need to be made to certain third parties
prior to or following Closing, including, but nor necessarily limited to, the
State of Florida, the State of Delaware, the Internal Revenue Service, and
certain regulatory agencies.
5.03 No Breach of Statute or Contract. To the Buyer's knowledge, the
Buyer's execution, delivery and performance of this Agreement will not breach
any statute or regulation of any governmental authority, and will not conflict
with or result in a breach of or default under any of the terms' conditions or
provisions of any order, writ, injunction, decree,
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agreement or instrument to which the Buyer is a party, or by which the Buyer is
or may be bound.
5.04 Retention and Access to Records. After the Closing, the Buyer
shall provide to the Sellers reasonable access to any Corporation records and
information acquired by the Buyer pursuant to the terms hereof, to enable the
Sellers (a) to perform any acts reasonably related to the Sellers' transfer of
the Sellers' interest in the Corporation; (b) to enable the Sellers to carry
out any and all of the Sellers' obligations pursuant to the requirements of
law; and (c) to access such information for any other reason which the Sellers
may reasonably request. The Buyer agrees that the Buyer shall maintain all such
records and information for a period ending the fourth anniversary of the
Closing Date.
ARTICLE 6
CLOSING, POST-CLOSING
6.01 Closing. Closing shall take place on a date mutually agreeable to
the parties and may take place simultaneously with, or immediately following
the execution of this Agreement. The parties shall make every reasonable effort
to complete the Closing on or before March 31, 1998, but in no case shall the
Closing occur after April 30, 1998, unless the time of Closing is extended
through mutual written agreement of the parties.
6.02 The Sellers' and Corporation's Deliveries. At the Closing, the
Sellers and the Corporation shall execute and deliver to the Buyer or, as
applicable, the Buyer shall have received from the Corporation or the Sellers:
(a) A resolution of the Board of Directors of the Corporation
authorizing the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, certified as of the Closing Date by an
officer of the Corporation as having been duly adopted and being in full force
and effect and unmodified on the Closing Date.
(b) A certificate of the Board of Directors of the
Corporation to the effect that all representations and warranties of the
Corporation set forth in Article 4 are true and correct in all material
respects as of the Closing Date and that all covenants of the Corporation set
forth herein have been duly performed by the Corporation in all material
respects.
(c) An affidavit from the respective Sellers to the effect
that all representations and warranties of the Sellers set forth in Article 4
are true and correct in all material respects as of the Closing Date and that
all covenants of the Sellers set forth herein have been duly performed by the
Sellers in all material respects.
(d) A duly executed stock power and stock certificate from
the respective Sellers, in form and content acceptable to the Buyer, selling,
assigning or otherwise
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transferring and delivering the Shares to the Buyer, free and clear of all
liens, encumbrances, conditions and restrictions.
6.03 The Buyer' Deliveries. At the Closing, the Buyer shall deliver to
the Sellers, or, as applicable, the Sellers shall have received from the Buyer:
(a) The full Purchase Price due at Closing for the Shares.
(b) A resolution of the Board of Directors of the Buyer
authorizing the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby, certified as of the Closing Date by an
officer of the Buyer as having been duly adopted and being in full force and
effect and unmodified on the Closing Date.
(c) A certificate of the Board of Directors of the Buyer to
the effect that all representations and warranties of the Buyer set forth in
Article 5 are true and correct in all material respects as of the Closing Date
and that all covenants of the Buyer set forth herein have been duly performed
by the Buyer in all material respects.
(d) Within five (5) business days following the Closing, the
Buyer agrees to hold the appropriate corporate meeting and cause the
Corporation to adopt, certify and deliver to the Sellers a corporate resolution
effectuating the indemnification of the Buyer and Sellers set forth in Section
7.03 hereto.
6.04 Post-Closing Deliveries. After the Closing, each party to this
Agreement shall, at the request of the other and without further consideration,
furnish, execute and deliver such documents, instruments, certificates, notices
of other further assurances as the requesting party shall reasonably request as
necessary or desirable to effect complete consummation of this Agreement and
the transaction contemplated hereby.
ARTICLE 7
INDEMNIFICATION
7.01 Indemnification of the Buyer by the Sellers. The Sellers shall
defend, indemnify and hold the Buyer and any of the Buyer's assigns, heirs,
agents and representatives harmless against, all damages, loss, costs or
expenses (including reasonable attorney's fees at all levels of trial or appeal
incurred in defending any claim for such damages, loss, costs or expenses)
incurred by the Buyer resulting from or in respect to:
(a) any breach in the Sellers' representations. warranties or
covenants in this Agreement;
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(b) any claim by a broker, agent or finder alleged to be
employed by, representing or otherwise involved with the Corporation or the
Sellers relating to this transaction.
7.02 Indemnification of the Sellers by the Buyer. The Buyer shall defend,
indemnify and hold the Sellers and any of the Sellers' assigns, heirs, agents
and representatives harmless against, all damages, loss, costs or expenses
(including reasonable attorney's fees at all levels of trial or appeal incurred
in defending any claim for such damages, loss, incurred by the Sellers
resulting from:
(a) any breach in the Buyer's representations, warranties or
covenants in this Agreement;
(b) any claim by a broker, agent or finder alleged to be
employed by, representing or otherwise involved with the Buyer relating to this
transaction.
7.03 Defense and Indemnification of the Sellers and Buyer by the
Corporation. The Corporation shall defend, indemnify and hold harmless the
Sellers, Buyer and any of Sellers' or Buyer's assigns, heirs, agents and
representatives harmless against, all damages, loss, costs or expenses
(including reasonable attorney's fees at all levels of trial or appeal incurred
in defending any claim for such damages, loss, costs or expenses) incurred by
the Sellers or Buyer resulting from any and all actions, suits, investigations,
proceedings, demands, assessments, tines, audits, judgments and claims arising
from the normal day-to-day performance, conduct or operations of the
Corporation. The Corporation shall have no obligation to indemnify the Buyer or
Sellers relating~g to the breach of any such party's individual warranties or
representations in this Agreement, and the parties agree that such
indemnification shall be the sole responsibility of the Buyer and Sellers
pursuant to Sections 7.01 and 7.02 above.
7.04 Limitations on Indemnity. In determining the extent of any
liability, damage, claim, deficiency, assessment, loss, penalty, interest, cost
or expense which any indemnified party suffers or becomes subject to as a
result of matters for which it is entitled to indemnification, (a) appropriate
deductions shall be made for any insurance proceeds which inure to or are
available for the benefit of any indemnified party, and (b) the tax benefits
recognized by the Corporation, the Sellers. or the Buyer, if any, related to
the liability, damage, claim, deficiency, assessment, loss, penalty interest,
cost or expense shall be taken into account and the indemnification payment
shall be net of such tax effects.
7.05 Notice of Claims. In the event that any party hereunder shall
receive any written notice of any claim or proceeding against said party (the
"Indemnitee"), the Indemnitee shall give the party upon such a claim could be
made under this Section 7 (the "Indemnitor") written notice of any such loss,
liability, claim, damage or expense, an~l the Indemnitor shall have the right
to contest and defend any action brought against the Indemnitee based thereon,
and shall
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have the right to contest and defend any such action in the name of the
Indemnitee at the Indemnitor's own expense; provided, that if the Indemnitor
shall fail to notify the Indemnitee of the assumption of the defense of any
such action within twenty (20) days of giving such notice by the Indemnitee,
then the Indemnitee shall have the right to take any such action as it seems
reasonable to defend, contest, settle or compromise any such action or
assessment and claim indemnification as provided herein. If the Indemnitor
defends any action for which indemnification is claimed, the Indemnitee shall
be entitled to participate at ins own expense in the defense of such action;
provided, however, that the Indemnitor shall bear the fees and expenses of the
Indemnitee's counsel if (i) the employment of such counsel is specifically
authorized in writing by the Indemnitor or (ii) the named parties to such
action include both the Indemnitor and the Indemnitee, and there exists a
conflict of interest between such parties which renders it inappropriate for
counsel selected by the Indemnitor to represent both of such parties. The
Indemnitor shall not be liable for any settlement of any claim, action or
proceeding affected without its written consent, except as expressly provided
in the first sentence of this Section 7. Failure of the Indemnitee to notify
the Indemnitor(s) of any such claim for which it is entitled to indemnity
hereunder shall not impair, limit or affect the indemnification provided herein
so long as the ability of the Indemnitor to contest, defend or dispute such
claim has not been materially and adversely affected.
ARTICLE 8
NOTICES
All notices, requests, demands and other communications hereunder
shall be in writing and will be deemed to have been duly given if personally
delivered, or when transmitted by facsimile with confirmation of receipt from
the other party, or when received if mailed by the United States First-Class
Certified or Registered Mail, postage pre-paid, with return receipt requested
and marked delivered or refused, or via an overnight delivery service (such as
Federal Express) with proof of delivery or refusal of delivery, to the other
parties at the following addresses (or at such other address as to which the
parties hereto have been notified as provided herein):
if to Buyer: Medley Credit Acceptance Corporation
X.X. Xxx 000000
Xxxxx Xxxxxx, Xxxxxxx 00000-0000
if to Sellers: W. Xxxxxx Xxxxxx Xxxxx X. Xxxxxx
0000 Xxxxxxxx Xxxxx 00000 X.X. 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxx 00000
YNC General Partnership
Xxxxx X. Xxxxx, Esq. 0000 X. Xxxxxxx Xxxx Xxxx.
00000 Xxxxxxxx Xxx Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000 Xxxxxxxxxx, Xxxxxxx 00000
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if to the Corporation: Premier Provider Services, Inc.
7S01 X. Xxxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 Assignment. No party may assign its rights or obligations under
this Agreement without the consent of the others.
9.2 Modification. There are no other agreements, promises, or
undertakings between the parties relating directly to the sale of the Shares,
except as specifically set forth herein. No alterations, changes, modifications
or amendments shall be made to this Agreement except in writing and signed or
initialed by the parties hereto. Notwithstanding the above, Sections 3, 4 and 5
of the letter of intent between the parties executed March 20, 1998, which
formed the basis of this Agreement relating to the sale of the Shares shall
survive the execution and closing of this Agreement and be binding upon the
parties.
9.3 Severability. lf any provision or paragraph of this Agreement is
deemed to be unlawful or unenforceable by any court, administrative agency or
statute, law or ordinance, the said provision or paragraph shall be severed
from the Agreement without affecting the enforceability of the remainder of the
Agreement. The parties shall make a good faith effort to redraft the severed
provision or paragraph consistent with the parties' original intention but in
such a way as to be lawful and enforceable.
9 4 Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the respective successors and assigns and is applicable to the
heirs and legal representatives of the parties hereto.
9.5 Survivability. The covenants' representations and warranties of
the respective parties hereto shall survive the Closing. No performance or
execution of this Agreement in whole or in part by any party hereto, no course
of dealing between or among the parties hereto or any delay or failure on the
part of any party in exercising any rights hereunder or at law or in equity,
and no investigation by any party hereto shall operate as a waiver of any
rights of such party, except to the extent expressly waived in writing by such
party.
9.6 Florida Contract. This Agreement shall be deemed a Florida
contract and shall be construed in accordance with the laws of such state,
regardless of whether or nor this Agreement is being executed by any of the
parties hereto in other states or otherwise.
9.7 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original.
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9.8 Compliance Dates. ln the event that any date specified in this
Agreement shall be on a Saturday, Sunday or nationally declared holiday, then
the date so specified shall be deemed to be the next business day following
such date, and compliance by such business day hereunder shall not be deemed a
default by any of the parties under this Agreement.
9.9 Headings. The headings of each section or subsection in this
Agreement are for convenience of reference only, and shall in no manner or way
whatsoever affect the interpretation or meaning of such section or subsection.
9.10 Entire Agreement. This constitutes the entire agreement between
the parties relating to the subject thereof, and prior agreements pertaining
thereto, whether oral or written, have been merged and integrated into this
Agreement. Notwithstanding the above, Sections 3, 4 and 5 of the letter of
intent between the parties executed March 20, 1998, which formed the basis of
this Agreement relating to the sale of the Shares shall survive the execution
and closing of this Agreement and be binding upon the parties.
9.11 Exhibits. The Exhibits attached hereto, together with all
documents incorporated by reference herein, form an integral part of this
Agreement and are hereby incorporated herein wherever reference is made to
them, to the same extent as if they were set out in full at the point at which
such reference is made.
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IN WITNESS WHEREOF, the parties have executed this Agreement this ___
day of March, 1998.
BUYER:
MEDLEY CREDIT ACCEPTANCE
CORPORATION
By:________________________
Xxxxxx X. Press, President
SELLERS:
W. XXXXXX XXXXXX XXXXX X. XXXXXX
----------------------- -------------------------
XXXXX X. XXXXX, ESQ. YNC GENERAL PARTNERSHIP
------------------------ --------------------------
CORPORATION:
PREMIER PROVIDER SERVICES, INC.
-------------------------------
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EXHIBIT A
PURCHASE PRICE AND MANNER OF PAYMENT
The Purchase Price and manner of payment for the Shares shall be as follows:
1. The Buyer shall pay to the Sellers a total base purchase price of Medley
common stock equivalent to four (4) times the average net income before taxes
of PPS for the fiscal year of 1997, and certain other incentive stock bonuses
as follows:
a. The Medley base purchase price stock will be issued to d~e
Sellers or their designees based upon the 1997 net income before taxes
of PPS. Such income will be multiplied by 4.0 and then divided by
$4.50 (the value of Medley stock solely for the purposes of this
Agreement) to arrive at the amount of Medley common stock to be issued
to the Sellers. Fifty percent (50%) of such base purchase price stock
shall be issued within thirty (30) days of the completion of the 1997
fiscal year audit of PPS by Medley. Fifty percent (50%) of such base
purchase price stock shall be issued to the Sellers on the first
anniversary of the Closing Date of this transaction.
b. If the 1998 net income before taxes of PPS equals or
exceeds the 1997 net income before taxes of PPS, the Sellers or their
designees shall receive additional incentive stock options for 30,000
shares of Medley common stock, with an exercise price equal to the
closing price of Medley common stock on the date of the of issuance of
the stock options. Such stock options shall be issued within thirty
(30) days of the completion of the 1998 fiscal year audit of PPS, and
exercisable~r-~ from the date of issuance.
c. If the 1999 net income before taxes of PPS exceeds the
1998 net income before taxes of PPS by five percent (5 %), the Sellers
or their designees shall receive additional incentive stock options
for 15,000 shares of Medley common stock, with an exercise price equal
to the closing price of Medley common stock on the date of the of
issuance of the stock options. Such stock option shall be issued
within thirty (30) days of the completion of the 1999 fiscal year
audit of PPS, and exercisable for six (6) months from the date of
issuance.
d. If the 1999 net income before taxes of PPS exceeds the
1998 net income before taxes of PPS by ten percent (10%), the Sellers
or their designees shall receive additional incentive stock options
for 30,000 shares of Medley common stock, with an exercise price equal
to the closing price of Medley common stock on the date of the of
issuance of the stock options. Such stock options shall be issued
within thirty (30) days of the completion of the 1999 fiscal year
audit of PPS, and exercisable for six (6) months from the date of
issuance.
2. Assumption of Liabilities At Closing, the Buyer shall assume all liabilities
relating to the Corporation, other than as expressly set forth herein to the
contrary.
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