STOCK PURCHASE AGREEMENT
BETWEEN
CANTERBURY CONSULTING GROUP, INC.
("CANTERBURY", "CITI", OR "BUYER")
AND
CERIDIAN CORPORATION
("CERIDIAN", "SHAREHOLDER", OR "SELLER"),
THE SOLE OWNER OF THE STOCK OF
USER TECHNOLOGY SERVICES INC.
("UT")
TABLE OF CONTENTS
1 DEFINITIONS 1
2 PURCHASE OF SECURITIES 5
(a) Purchase and Sale of Shares 5
(b) Purchase Price. 6
(c) Costs 6
(d) Intentionally Omitted. 6
(e) The Closing. 6
(f) Deliveries at the Closing. 6
3 REPRESENTATIONS AND WARRANTIES REGARDING THE SELLER 7
(a) Organization 7
(b) Authorization of Transaction 7
(c) Noncontravention 7
(d) Title to Assets 8
(e) Subsidiaries 8
(f) Financial Statements 8
(g) Events Subsequent to Most Recent Calendar Month End 8
(h) Undisclosed Liabilities 10
(i) Legal Compliance 10
(j) Tax and Other Returns and Reports 10
(k) Intellectual Property 11
(l) Tangible Assets 11
(m) Contracts 12
(n) Resignation of Officers and Directors 13
(o) Powers of Attorney 13
(p) Insurance 13
(q) Litigation 13
(r) Employees 13
(s) Employee Benefits 14
(t) Guaranties 14
(u) Environment, Health, and Safety 14
(v) Certain Business Relationships With UT 14
(w) Disclosure 15
(x) Seller's Title to Stock 15
(y) Qualification to Do Business 15
(z) Intercorporate Relations 15
(aa) Capitalization 15
(bb) Indebtedness 15
(cc) Stock Rights 15
(dd) Present Status 15
(ee) Compensation of Officers and Others 16
(ff) Intentionally Omitted 16
(gg) Records 16
(hh) Broker's Fees 16
(ii) Accounts Receivable 16
(jj) Purchase Commitments and Outstanding Bids 16
4 REPRESENTATIONS AND WARRANTIES OF THE BUYER 16
(a) Organization of the Buyer 17
(b) Authorization of Transaction 17
(c) Noncontravention 17
(d) Government Authorization 17
(e) Intentionally Omitted 17
(f) Consents 17
(g) Investment Intent 17
5. CERTAIN OTHER AGREEMENTS 18
(a) Non-Compete 18
(b) Personnel Matters 18
(c) Receipt and Transfer of Funds; Accounts Receivable 20
(d) Purchase of Formerly Leased Computers 20
(e) Cessation of Use of Ceridian Name 21
(f) Tax Matters 21
(g) Post-Closing Access 22
(h) Additional Documentation 22
(j) Set-off 22
6. CONDITIONS TO OBLIGATION TO CLOSE 23
(a) Conditions to Obligation of the Buyer 23
(b) Conditions to Obligation of the Seller 24
7. INTENTIONALLY OMITTED 24
8. INDEMNIFICATION 24
(a) Survival of Representations and Warranties 24
(b) Indemnification Provisions for Benefit of the Buyer 24
(c) Matters Involving Third Parties 25
(d) Indemnification Provisions for Benefit of the Seller 26
(e) Limitations and Conditions on Indemnification 27
9. MISCELLANEOUS 27
(a) Intentionally Omitted 27
(b) No Third-Party Beneficiaries 27
(c) Entire Agreement 27
(d) Succession and Assignment 27
(e) Counterparts 27
(f) Headings 28
(g) Notices 28
(h) Governing Law 29
(i) Amendments and Waivers 29
(j) Severability 29
(k) Expenses and Brokers/Finders' Fees 29
(l) Intentionally Omitted 29
(m) Construction 29
(n) Specific Performance 29
(o) Arbitration 30
EXHIBITS
EXHIBIT A - [Intentionally Left Blank]
EXHIBIT B - Financial Statements - Unaudited Income Statement for the year
ended December 31, 2000
EXHIBIT C - Financial Statements - Unaudited Income Statement for the 8
Months Ended August 31, 2001
EXHIBIT D-1 - Acquisition Balance Sheet dated September 1, 2001
EXHIBIT D-2 - Schedule of Assets As of September 1, 2001
EXHIBIT E - Seller' Disclosure Schedule - Section 3 (a) through (jj)
EXHIBIT F - Buyer's Disclosure Schedule - Section 4
EXHIBIT G - [Intentionally Left Blank]
EXHIBIT H - Detailed Accounts Receivable as of September 1, 2001
EXHIBIT I - Promissory Note in the amount of $1,200,000
EXHIBIT J - List of Computers to Be Purchased
EXHIBIT K - Computer Promissory Note in the amount of $364,703.01
AGREEMENT
---------
THIS AGREEMENT made this 28th day of September 2001 by and between
CANTERBURY CONSULTING GROUP, INC., a Pennsylvania corporation ("Canterbury",
"CITI" or "BUYER"); CERIDIAN CORPORATION, a Delaware corporation ("Ceridian",
"SELLER" or "Shareholder") who is the sole owner of USER TECHNOLOGY SERVICES
INC., a New York corporation ("UT").
WHEREAS, CITI, a public company, desires to acquire all of the issued
and outstanding shares of capital stock of UT from Ceridian for certain
consideration; and
WHEREAS, Ceridian desires to sell all of its stock in UT for cash and
notes; and
WHEREAS, the respective Boards of Directors of the companies have
authorized their proper corporate officers to effect the transactions
contemplated herein; and
WHEREAS, each of the parties desires to assist the other in effecting
the transaction pursuant to the terms of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto have agreed
as follows:
1. DEFINITIONS
"Accounts Receivable" means amounts due from customers for products and
services rendered, including both Trade and Unbilled Receivables.
"Acquisition Balance Sheet" means the balance sheet dated September 1,
2001, as attached hereto as Exhibit D-1.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act.
"Affiliated Group" means any affiliated group within the meaning of
Code Sec. 1504(a) or any similar group defined under a similar provision of
state, local, or foreign law.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or could, with reasonable
probability, form the basis for any specified consequence.
"Buyer" means Canterbury Consulting Group, Inc.
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"Buyer Disclosure Schedule" shall have the meaning set forth in Section
4 below.
"Cash" means cash and, in the case of financial statements, means cash
and cash equivalents (including marketable securities and short term
investments) calculated in accordance with GAAP applied on a basis consistent
with the preparation of the Financial Statements.
"Canterbury" means Canterbury Consulting Group, Inc.
"Ceridian" means Ceridian Corporation
"Closing" has the meaning set forth in Section 2(e) below.
"Closing Date" has the meaning set forth in Section 2(e) below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Corporate Assets" means all right, title, and interest in and to all
of the assets of UT, including the name "User Technology Services Inc." and
all of UT's (a) real property, leaseholds and subleaseholds therein,
improvements, fixtures, and fittings thereon (to the extent of UT's interest
therein), (b) tangible personal property (such as computers and peripherals,
machinery, equipment, inventories of supplies, manufactured and purchased
parts, work in process and finished work, furniture, automobiles and trucks),
(c) Intellectual Property, goodwill associated therewith, licenses and
sublicenses granted and obtained with respect thereto, and rights thereunder,
remedies against infringements thereof, and rights to protection of interests
therein under the laws of all jurisdictions, (d) leases, subleases, and
rights thereunder, (e) agreements, contracts, indentures, mortgages,
instruments, Security Interests, guaranties, other similar arrangements, and
rights thereunder, (f) claims, deposits, prepayments, refunds, causes of
action, cases in action, rights of recovery, rights of set off, and rights of
recoupment (including any such item relating to the payment of Taxes), (g)
franchises, approvals, permits, licenses, orders, registrations,
certificates, variances, and similar rights obtained from governments and
governmental agencies, and (h) books, records, ledgers, files, documents,
correspondence, customer lists and other lists, creative materials,
advertising and promotional materials, studies, reports, and other printed or
written materials, either finished, in process, or planned.
"Disclosure Schedule" has the meaning set forth in Section 3 below.
"Employee Benefit Plan" means any (a) nonqualified deferred
compensation or retirement plan or arrangement which is an Employee Pension
Benefit Plan, (b) qualified defined contribution retirement plan or
arrangement which is an Employee Pension Benefit Plan, (c) qualified defined
benefit retirement plan or arrangement which is an Employee Pension Benefit
Plan (including any Multiemployer Plan), or (d) Employee Welfare Benefit Plan
or material fringe benefit plan or program.
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"Employee Pension Benefit Plan" has the meaning set forth in ERISA Sec.
3(2).
"Employee Welfare Benefit Plan" has the meaning set forth in ERISA Sec.
3(l).
"Environmental, Health, and Safety Laws" means the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, the Resource
Conservation and Recovery Act of 1976, and the Occupational Safety and Health
Act of 1970, each as amended, together with all other laws (including rules,
regulations, codes, plans, injunctions, judgments, orders, decrees, rulings,
and charges thereunder) of federal, state, local, and foreign governments
(and all agencies thereof) concerning pollution or protection of the
environment, public health and safety, or employee health and safety,
including laws relating to emissions, discharges, releases, or threatened
releases of pollutants, contaminants, or chemical, industrial, hazardous, or
toxic materials or wastes into ambient air, surface water, ground water, or
lands or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport, or handling of pollutants,
contaminants, or chemical, industrial, hazardous, or toxic materials or
wastes.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Extremely Hazardous Substance" has the meaning set forth in Sec. 302
of the Emergency Planning and Community Right-to-Know Act of 1986, as
amended.
"Fiduciary" has the meaning set forth in ERISA Sec. 3(21).
"Financial Statement" has the meaning set forth in Section 3(f) below.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Income Taxes" or "Income Tax" shall mean any and all liability for
any taxes imposed on the income of a corporation, including without
limitation, any liability under the Code and all federal, state, local, and
foreign income, profits, gross receipts and unitary taxes or similar taxes or
other assessments imposed with respect thereto and any interest, penalties or
additions in respect of such tax.
"Intellectual Property" means (a) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements
thereto, and all patents, patent applications, and patent disclosures,
together with all reissuances, continuations, continuations-in-part,
revisions, extensions, and reexaminations thereof, (b) all trademarks,
service marks, trade dress, logos, trade names, and corporate names, together
with all translations, adaptations, derivations, and combinations thereof and
including all goodwill associated therewith, and all applications,
registrations, and renewals in connection therewith, (c) all copyrightable
works, all copyrights, and all applications, registrations, and renewals in
connection therewith, (d) all trade secrets and confidential business
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information (including ideas, research and development, know-how, formulas,
compositions, manufacturing and production processes and techniques,
technical data, designs, drawings, specifications, customer and supplier lists,
pricing and cost information, and business and marketing plans and
proposals), (e) all computer software (including data and related
documentation), (f) all other proprietary rights, and (g) all copies and
tangible embodiments thereof (in whatever form or medium).
"Knowledge" of an entity means knowledge actually possessed by any
director, officer or key employee of the entity and such knowledge as would
have or should have come to the attention of any such director, officer or
key employee in the course of due inquiry and the preparation and negotiation
of this Agreement and related Disclosure Schedule and in the course of
discharging such individual's duties as a director, officer or key employee
of the entity in a reasonable and prudent manner consistent with sound
business practices."
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Most Recent Balance Sheet" means the balance sheet of August 31, 2001.
"Most Recent Financial Statements" has the meaning set forth in Section
3(f) and (g) below.
"Most Recent Calendar Month End" has the meaning set forth in Section
3(f) below.
"Most Recent Calendar Year End" has the meaning set forth in Section
3(f) below.
"Multi-employer Plan" has the meaning set forth in ERISA Sec. 3(37).
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity
and frequency).
"Party" means any party to this Agreement and "Parties" means all
parties to this Agreement.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
"Securities Act" means the Securities Act of 1933, as amended.
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"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for Taxes not yet due and payable or for Taxes
that the taxpayer is contesting in good faith through appropriate
proceedings, (c) purchase money liens and liens securing rental payments
under capital lease arrangements, and (d) other liens arising in the Ordinary
Course of Business and not incurred in connection with the borrowing of
money.
"Seller" means Ceridian Corporation, the Shareholder of 100% of the
ownership interest of User Technology Services Inc. ("UT").
"Stock" means one hundred (100%) percent of the shares of UT owned by
Ceridian.
"Subsidiary" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has
the power to vote or direct the voting of sufficient securities to elect a
majority of the directors.
"Tangible Net Worth" means the excess of assets over liabilities not
including any goodwill or other intangibles.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code Sec.
59A), customs duties, capital stock, franchise, profits, withholding, social
security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or
add-on minimum, estimated, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for refund,
or information return or statement relating to Taxes, including any schedule
or attachment thereto, and including any amendment thereof.
"UT" means User Technology Services Inc., the wholly owned subsidiary
of Ceridian the Stock of which is being sold herewith to Canterbury.
2. PURCHASE OF SECURITIES
(a) Purchase and Sale of Shares. Subject to the terms and conditions
of this contract, Seller agrees to sell, transfer, and assign to Buyer, and
Buyer agrees to purchase, at the Closing, all of the issued and outstanding
shares of Stock. This transaction includes all right, title, and interest in
and to, all of the assets of the Corporation, including such assets as more
particularly set forth on the Schedule of Assets annexed hereto as Exhibit D-
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2. The immediately preceding sentence shall not be construed to cause this
transaction to be a purchase and sale of assets. This transaction is a
purchase and sale of stock.
(b) Purchase Price. The Buyer agrees to pay to the Seller at the
Closing:
(i) A cash payment equal to the Tangible Net Worth of UT, per
the Acquisition Balance Sheet; plus,
(ii) A promissory note for one-million, two-hundred thousand
dollars ($1,200,000) plus interest at the rate of seven percent (7%) per
annum, payable in three equal annual installments of four hundred thousand
dollars ($400,000) each plus the associated interest beginning on the first
anniversary of the closing as annexed hereto as Exhibit I ("Promissory
Note"). This Promissory Note shall be a general obligation of CITI, and
shall be subordinated to all of CITI's current and future bank borrowings.
(c) Costs. Ceridian and CITI shall bear its own costs associated
with this Agreement, the Closing, and all ancillary or related measures,
including without limitation, costs of attorneys' fees, accountants' fees, or
other costs or expenses, without right or recourse from the other. However,
without limiting the foregoing, CITI will be responsible for any external
auditing fees and expenses that are incurred as a result of this transaction
and Ceridian shall be responsible for all fees and expenses of any "Finders"
including but not limited to Xxxxxxxx Advisory Service, Inc.
(d) Intentionally Omitted.
(e) The Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place at the offices of Levy &
Levy, P.A., Plaza 1000, Suite 000, Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx, 00000,
commencing at 9:00 a.m. local time on September 28, 2001 (the "Closing Date")
or by Federal Express or other overnight delivery company, following the
satisfaction or waiver of all conditions to the obligations of the Parties to
consummate the transactions contemplated hereby (other than conditions with
respect to actions the respective Parties will take, at the Closing itself).
The effective date of the Closing, however, shall be September 1, 2001
("Effective Date").
(f) Deliveries at the Closing. At the Closing, (i) the Seller will
deliver to the Buyer its stock certificates in the Stock properly endorsed
for the Stock; (ii) the Buyer and the Seller will each deliver to each other
the various certificates, instruments, and documents referred to in this
Agreement; (iii) the Buyer will wire transfer immediately available funds to
the Seller the cash payment as described in Section 2(b) above and deliver
the Promissory Note and Computer Promissory Note (as defined in Section
5(d)), each properly executed and validly issued; (iv) any present
contract(s) between UT and Xxxx Xxxxx will be cancelled and evidence of
payment of any accrued and earned bonuses through the Closing Date will be
provided to Buyer; (v) an executed new Employment Contract between UT and
Xxxx Xxxxx will become effective; (vi) the Acquisition Balance Sheet will be
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delivered; (vii) Seller will deliver evidence to Buyer of the sublease of
approximately one-third of the existing office lease in East Norwalk,
Connecticut to UT and the assignment of the existing office lease at
Saddlebrook, NJ and apartment lease in Fairfax, VA from Seller to UT; (viii)
the Lease Agreement Order OL-10762 and Lease Schedule 01 between UT and
California First Leasing Corporation relating to certain computer equipment
being leased by UT as further described in Section 5(d) was terminated; (ix)
Buyer will deliver an executed security agreement and UCC-1 statement to
secure the Seller's interest in the computers being sold to UT pursuant to
Section 5(d); and (x) Seller will deliver an executed Debt Subordination
Agreement between Commerce Bank, N.A. and Ceridian.
3. REPRESENTATIONS AND WARRANTIES REGARDING THE SELLER
Ceridian represents and warrants to the Buyer that the statements
contained in this Section 3 are correct and complete as of the Closing,
except as set forth in the disclosure schedule attached hereto as Exhibit E
and initialed by the Parties (the "Disclosure Schedule"). The Disclosure
Schedule will be arranged in paragraphs corresponding to the lettered and
numbered paragraphs contained in this Section 3.
(a) Organization. UT is a corporation duly organized, validly
existing, and in good standing under the laws of the State of New York.
(b) Authorization of Transaction. Ceridian and UT have full
corporate power and authority, to execute and deliver this Agreement and to
perform their respective obligations hereunder. Without limiting the
generality of the foregoing, the board of directors of Ceridian has duly
authorized the execution, delivery, and performance of this Agreement by
Ceridian. This Agreement constitutes the valid and legally binding
obligation of Ceridian enforceable in accordance with its terms and
conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby, will
(i) violate in any material respect any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to which
Ceridian or UT are subject, (ii) violate any provision of the charter or
bylaws of Ceridian or UT or (iii) conflict with, result in a material breach
of, constitute a material 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 material agreement, contract, lease, license,
instrument, or other arrangement to which UT is a party or by which it is
bound or to which any of the Corporate Assets are subject (or result in the
imposition of any Security Interest upon any of the Corporate Assets), in
each case, the result of which would not have a material adverse effect on
the business or financial condition of UT. UT does not need to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement.
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(d) Title to Assets. UT has good and marketable title to, or a valid
leasehold interest in, the assets used by it, located on its premises, or
shown on the Most Recent Balance Sheet or acquired up to date of Closing,
free and clear of all Security Interests, except for assets disposed of in
the Ordinary Course of Business since the date of the Most Recent Balance
Sheet and those assets owned by Ceridian. Without limiting the generality of
the foregoing, UT has good and marketable title to all Corporate Assets, free
and clear of any Security Interest or restriction on transfer, except for
liens voluntarily created in the Ordinary Course of Business and in the
Disclosure Schedule.
(e) Subsidiaries. UT does not have any Subsidiaries.
(f) Financial Statements. Attached hereto as Exhibit B and C are the
following financial statements (collectively the "Financial Statements"): (i)
unaudited balance sheet and statements of income for the year ended December
31, 2000 (the "Most Recent Calendar Year End") for UT as attached hereto as
Exhibit B; and (ii) unaudited balance sheet and statement of income as of and
for the eight months ended August 31, 2001 (the "Most Recent Calendar Month
End ") for UT as attached hereto as Exhibit C. The Financial Statements
(including the Notes thereto where applicable) (i) have been prepared in
accordance with GAAP, in all material respects, applied on a consistent basis
throughout the periods covered thereby, as applicable to unaudited financial
statements, (ii) present fairly, in all material respects, the financial
condition of UT as of such dates and the results of operations of UT for such
periods, and (iii) are consistent with the books and records of UT. The
Financial Statements have been internally prepared by UT and the Financial
Statement information as of August 31, 2001 and for the twelve months ended
December 1, 2000 is to UT's Knowledge, true and correct. To Ceridian's
Knowledge and without any confirmation from any third party, including but
not limited to KPMG LLP, its external auditors, Ceridian believes that the
Financial Statements are auditable.
(g) Events Subsequent to Most Recent Calendar Month End. Since the
Most Recent Calendar Month End, there has not been any material adverse
change in the business, financial condition, operations, or results of
operations of UT. Without limiting the generality of the foregoing, since
that date:
(i) UT has not sold, leased, transferred, or assigned any of
UT's assets, tangible or intangible, with a value in excess of one thousand
dollars ($1,000), other than for a fair consideration and in the Ordinary
Course of Business;
(ii) UT has not entered into any material agreement, contract,
lease, or license (or series of related material agreements, contracts,
leases and licenses) outside the Ordinary Course of Business;
(iii) Neither UT nor any third party has accelerated, terminated,
modified, or canceled any material agreement, contract, lease or license (or
series of related agreements, contracts, leases and licenses) to which the UT
is a party or by which UT is bound;
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(iv) UT has not permitted any Security Interest upon any
of UT's material assets, tangible or intangible;
(v) UT has not made any capital expenditure (or series of
related capital expenditures) outside the Ordinary Course of Business;
(vi) UT has not made any capital investment in, any loan to, or
any acquisition of the securities or assets of, any other Person (or series
of related capital investments, loans, and acquisitions) outside of the
Ordinary Course of Business;
(vii) UT has not issued any note, bond, or other debt security
or created, incurred, assumed, or guaranteed any indebtedness for borrowed
money or capitalized lease obligation;
(viii) UT has not delayed or postponed the payment of accounts
payable and other Liabilities of UT, other than as consistent with its
Ordinary Course of Business;
(ix) UT has not canceled, compromised, waived, or released any
right or claim (or series of related rights and claims in excess of $2,000),
outside the Ordinary Course of Business;
(x) UT has not granted any license or sublicense of any rights
under or with respect to any of its Intellectual Property outside the
Ordinary Course of Business;
(xi) There has been no change made or authorized in UT's
charter or bylaws;
(xii) UT has not issued, sold, or otherwise disposed of any of
its capital stock, or granted any options, warrants, or other rights to
purchase or obtain (including upon conversion, exchange, or exercise) any of
UT's capital stock;
(xiii) UT has not declared, set aside, or paid any dividend or
made any distribution with respect to UT's capital stock (whether in cash or
in kind) or redeemed, purchased, or otherwise acquired any of its capital
stock;
(xiv) UT has not experienced any material damage, destruction,
or loss (whether or not covered by insurance) to its property;
(xv) UT has not made any loan to, or entered into any other
transaction with, any of its directors, officers, and employees outside the
Ordinary Course of Business;
(xvi) UT has not entered into any employment contract or
collective bargaining agreement, written or oral, or modified the terms of
any existing such contract or agreement outside the Ordinary Course of
Business;
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(xvii) UT has not granted any increase in the base compensation
of any of its directors, officers, and employees outside the Ordinary Course
of Business;
(xviii) UT has not made any other change in employment terms for
any of UT's directors, officers, or employees outside the Ordinary Course of
Business;
(xix) UT has not made or pledged to make any charitable or
other capital contributions outside of the Ordinary Course of Business;
(xx) UT has not paid any amount to any third party with
respect to any Liability or obligation (including any costs and expenses UT
has incurred or may incur in connection with this Agreement and the
transactions contemplated hereby) outside of the Ordinary Course of Business;
and
(xxi) to the Knowledge of UT there has not been any other
material occurrence, event, incident, action, failure to act, or transaction
involving UT which will have a material adverse effect upon the business of
UT.
(h) Undisclosed Liabilities. Except as reflected on the Acquisition
Balance Sheet, UT does not have any undisclosed liabilities affecting its
Corporate Assets, except liabilities which have arisen after the date of the
Acquisition Balance Sheet in the Ordinary Course of Business.
(i) Legal Compliance. UT has complied in all material respects with
all applicable laws (including rules, regulations, codes, plans, injunctions,
judgments, orders, decrees, rulings, and charges thereunder) of federal,
state, local, and foreign governments (and all agencies thereof) which
materially affects the business of UT and the which UT may be subject, and no
action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice has been filed or commenced against it alleging any failure
so to comply with such laws.
(j) Tax and Other Returns and Reports. All federal, state, local
and foreign Tax Returns and other similar filings required to be filed by UT
with respect to any federal, state, local or foreign tax have been filed with
the appropriate governmental agencies in all jurisdictions in which such Tax
Returns are required to be filed, and all such Tax Returns properly reflect
the liabilities of UT for Taxes for the periods, property or events covered
thereby. All Taxes which are called for in the Tax Returns, or claimed to be
due by any taxing authority from Seller, have been properly accrued or paid.
Seller has not received any notice of assessment or proposed assessment in
connection with any Tax Returns and there are no pending tax examinations of
or tax claims asserted against the Acquired Assets. There are no tax liens
(other than any lien for current taxes not yet due and payable) in any of the
Corporate Assets.
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(k) Intellectual Property.
(i) UT owns or has the right to use pursuant to ownership,
license, sublicense, agreement or permission all Intellectual Property used
in the operation of the businesses of UT as presently conducted. Each item
of Intellectual Property owned or used by UT immediately prior to the Closing
hereunder will be owned or available for use by UT on identical terms and
conditions immediately subsequent to the Closing hereunder.
(ii) To the Knowledge of Seller and UT, UT has not interfered
with, infringed upon, misappropriated, otherwise come into conflict with any
material Intellectual Property rights of third parties, and none of UT and
the directors and officers of UT has ever received any charge, complaint,
claim, demand, or notice alleging any such interference, infringement,
misappropriation, or violation. To the Knowledge of UT, no significant
competitor of UT has interfered with infringed upon, misappropriated, or
otherwise come into conflict with any Intellectual Property rights of UT for
commercial purposes.
(iii) Section 3(k)(iii) of the Disclosure Schedule identifies
each material item of Intellectual Property that any third party owns and
that UT uses pursuant to license, sublicense, agreement, or permission. UT
has delivered to the Buyer correct and complete copies of all such material
licenses, sublicenses, agreements, and permissions (as amended to date).
With respect to each item of Intellectual Property required to be identified
in Section 3(k)(iii) of the disclosure Schedule, to the Knowledge of Seller
and UT:
(A) no party to the license, sublicense, agreement, or
permission is in material breach or default, and no event has occurred which
with notice or lapse of time would constitute a material breach or default or
permit termination, modification, or acceleration thereunder;
(B) no party to the license, sublicense, agreement, or
permission has repudiated any provision thereof; and
(C) with respect to each sublicense, the representations
and warranties set forth in subsections (A) through (B) above are true and
correct with respect to the underlying license.
(iv) To the Knowledge of UT, UT will not interfere with,
infringe upon, misappropriate, or otherwise come into conflict with, any
Intellectual Property rights of third parties as a result of the continued
operation of its business as presently conducted.
(l) Tangible Assets. All of the tangible Corporate Assets that are
owned by UT and used by UT in the conduct of its business are in good
operating condition and repair (subject to normal wear and tear), and is
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suitable for the purposes for which they presently are used, subject to
technological obsolescence.
(m) Contracts. Section 3(m) of the Disclosure Schedule lists the
following contracts and other agreements to which UT is a party:
(i) any agreement (or group of related agreements) for the
lease of personal property to or from any Person providing for aggregate
annual lease payments in excess of five thousand dollars ($5,000);
(ii) any agreement (or group of related agreements) for the
purchase or sale of supplies, products, or other personal property, or for
the furnishing or receipt of services, the performance of which will extend
over a period of more than one year, result in a material loss to UT, or
involve consideration in excess of five thousand dollars ($5,000);
(iii) any agreement concerning a partnership or joint venture;
(iv) any agreement (or group of related agreements) under which
it has created, incurred, assumed, or, guaranteed any indebtedness for
borrowed money, or any capitalized lease obligation, in excess of five
thousand dollars ($5,000) or under which it has imposed a Security Interest
on any of its assets, tangible or intangible;
(v) any agreement concerning confidentiality or noncompetition
outside of the Ordinary Course of Business;
(vi) any agreement between UT and Ceridian or its Affiliates;
(vii) any profit sharing, stock option, stock purchase, stock
appreciation, deferred compensation, severance, or other plan or arrangement
for the benefit of its current or former directors, officers, and employees
which would result in liability to the Buyer;
(viii) any collective bargaining agreement;
(ix) any agreement for the employment of any individual on a
full-time, part-time, consulting, or other basis providing annual
compensation or providing severance benefits in excess of twenty-five
thousand dollars ($25,000);
(x) any agreement under which it has advanced or loaned any
amount to any of its directors, officers, and employees outside the Ordinary
Course of Business;
(xi) any agreement under which the consequences of a default or
termination could have a material adverse effect on the business, financial
condition, operations, results of operations of UT; or
Page 12 of 30
(xii) any other agreement (or group of related agreements) the
performance of which involves consideration in excess of five thousand
dollars ($5,000).
The Seller has furnished or made available to the Buyer a correct and
complete copy of each written agreement listed in Section 3(m) of the
Disclosure Schedule (as amended to date) and a written summary setting forth
the terms and conditions of each oral agreement referred to in Section 3(m)
of the Disclosure Schedule. With respect to each agreement required to be
disclosed hereunder: (A) the agreement is legal, valid, binding, enforceable,
and in full force and effect subject to laws limiting or affecting creditors'
rights generally; (B) the agreement will continue to be legal, valid,
binding, enforceable, and in full force and effect on identical terms
following the consummation of the transactions contemplated hereby (including
and subject to the assignments and assumptions referred to in Section 2 above
and the receipt of any necessary consents) subject to laws limiting or
affecting creditors' rights generally; (C) to UT's Knowledge no party is in
breach or default, in any material respect, and no event has occurred which
with notice or lapse of time would constitute a material breach or default,
or permit termination, modification, or acceleration, under the agreement;
and (D) to UT's Knowledge no party has repudiated any material provision of
the agreement. With respect to any verbal employment arrangements of UT, the
Disclosure Schedule shall only be required to list the name, title, base
compensation, and full or part-time status of employees and those consultants
currently performing active services for the Seller.
(n) Resignation of Officers and Directors. Except for Xxxx Xxxxx,
all of the officers and members of the Board of Directors of UT shall resign
at the time of Closing. Buyer has informed Seller that the new Board of
Directors after Closing shall initially be Xxxx Xxxxx, Xxxxx XxXxxxxx and
Xxxxxxx Xxxxx.
(o) Powers of Attorney. There are no outstanding powers of attorney
executed on behalf of UT (or the Seller on behalf of UT) which would be
binding upon UT or the Buyer after the Closing.
(p) Insurance. UT's business has been insured through insurance
policies maintained by Ceridian, which at the time of the Closing will be
current and in force.
(q) Litigation. Section 3(q) of the Disclosure Schedule - Section
3, sets forth each instance in which UT (i) is subject to any outstanding
injunction, judgment, order, decree, ruling, or charge or (ii) is a party or
to UT's Knowledge, is threatened to be made a party to any action, suit,
proceeding, hearing, or investigation of, in, or before any court or quasi-
judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator.
(r) Employees. Neither UT nor Ceridian has been informed that any
executive, key employee, or group of employees or consultants, intend to
terminate employment with UT. UT is not a party to or bound by any
collective bargaining agreement, nor has it experienced any strikes,
grievances, claims of unfair labor practices, or other collective bargaining
disputes. UT has not committed any unfair labor practice. UT does not have
any Knowledge of any organizational effort presently being made or threatened
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by or on behalf of any labor union with respect to employees of UT.
(s) Employee Benefits. UT's employees are currently covered by
employee benefit plans maintained or sponsored by Ceridian. Employees of UT
ceased active participation in the Ceridian 401(k) plans effective July 31,
2001 and its pension plan effective August 31, 2001. Employees of UT will
cease participation in Ceridian's remaining benefit plans upon the Closing.
(t) Guaranties. UT is not a guarantor or otherwise liable for any
material Liability or obligation (including indebtedness) of any other third
Person.
(u) Environment, Health, and Safety.
(i) To the Knowledge of the Seller and UT, UT has complied with
all Environmental, Health, and Safety Laws, and no action, suit, proceeding,
hearing, investigation, charge, complaint, claim, demand, or notice has been
filed or commenced against any of them alleging any failure so to comply.
Without limiting the generality of the preceding sentence, UT has obtained
and been in compliance with all of the material terms and conditions of all
permits, licenses, and other authorizations which are required under, and has
complied in all material respects with all other limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules,
and timetables which are contained in, all Environmental, Health, and Safety
Laws which are necessary to conduct its business.
(ii) To the Knowledge of Seller and UT, UT does not have any
Liability (and UT has not handled or disposed of any substance, arranged for
the disposal of any substance, exposed any employee or other individual to
any substance or condition, or owned or operated any property or facility in
any manner that could form the basis for any present or future action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or demand
against UT giving rise to any Liability) for damage to any site, location, or
body of water (surface or subsurface), for any illness of or personal injury
to any employee or other individual, under any Environmental, Health, and
Safety Law except with respect to possible such liabilities associated with
the use and operation of equipment used in the ordinary course of UT's
business, including electromagnetic radiation.
(iii) To the Knowledge of the Seller and UT, all properties and
equipment used in the business of UT have been free of asbestos, PCB'S,
methylene chloride, trichloroethylene, 1,2-transdichloroethylene, dioxins,
dibenzofurans, and Extremely Hazardous Substances other than in de minimus
quantities.
(v) Certain Business Relationships With UT. The Seller has not been
involved in any business arrangement or relationship with UT except for the
lease of certain office space and as stockholders, directors, officers and
employees, within the past 12 months. Seller does not own any asset,
tangible or intangible, which is used in and material to the business of UT.
Page 14 of 30
(w) Disclosure. The representations and warranties contained in this
Section 3 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this Section 3 not misleading.
(x) Seller's Title to Stock. Seller has good, absolute, and
marketable title to the Stock, free and clear of all liens, claims,
encumbrances, and restrictions of every kind; and Seller has the complete and
unrestricted right, power, and authority to sell, transfer, and assign the
Stock pursuant to this contract.
(y) Qualification to do Business. UT is duly qualified as a foreign
corporation in good standing in each jurisdiction where the nature of its
activities or its properties owned or leased makes qualification necessary,
except for those jurisdictions in which the failure to be so qualified would
not, individually or in the aggregate, have a material adverse effect on UT's
business or results of operations.
(z) Intercorporate Relations. UT has no subsidiaries and has no
direct or indirect equity interest in any other firm, corporation or business
enterprise.
(aa) Capitalization. UT is authorized to issue (i) 2,000,000 shares
of Class A common stock, par value $.01 per share, 200 of which are duly and
validly issued and outstanding; (ii) 150,000 shares of Class B common stock,
par value $.01, of which no shares are duly issued and outstanding; and UT
has no intention or obligation to issue any other capital stock or other
security.
(bb) Indebtedness. Seller has delivered to Buyer true copies of all
instruments relating to UT's long-term and short-term indebtedness, and UT is
not in any material default or violation of any provision of its outstanding
long-term or short-term indebtedness.
(cc) Stock Rights. There are no outstanding options, contracts,
commitments, warranties, agreements, or other rights of any character
affecting or relating in any manner to the issuance of UT's capital stock or
other securities of UT, or entitling anyone to acquire UT's capital stock or
other securities.
(dd) Present Status. Except as set forth in the Acquisition Balance
Sheet, since the Acquisition Balance Sheet date, UT has not incurred any
obligations or liabilities except current liabilities in the Ordinary Course
of Business; has not discharged or satisfied any liens or encumbrances, or
paid any obligations or liabilities, except current balance sheet liabilities
and current liabilities incurred since the Acquisition Balance Sheet date in
the Ordinary Course of Business; has not declared or made any shareholder
payment or distribution or purchased or redeemed any of its securities or
agreed to do so; has not mortgaged, pledged, or subjected to lien,
encumbrance, or charge any of its assets, except as set forth in the
Acquisition Balance Sheet; has not canceled any debt or claim; has not sold
or transferred any assets except from inventory in the Ordinary Course of
Business; has not suffered any damage, destruction, or loss (whether or not
Page 15 of 30
covered by insurance) materially affecting its properties, business, or
prospects; has not waived any rights of substantial value; and has not
entered into any transaction other than in the Ordinary Course of Business.
(ee) Compensation of Officers and Others. Since the Effective Date,
there has not been any change in any compensation, commission, bonus, or
other remuneration payable to any officer, director, agent, employee, or
consultant of UT, except for increases in the Ordinary Course of Business
consistent with prior practice.
(ff) Intentionally Omitted.
(gg) Records. The respective books of account and minute books of UT
are complete and correct in all material respects, and the books of account
reflect all those transactions involving UT's business that properly should
have been set forth in the books of account.
(hh) Broker's Fees. Neither UT nor Seller is obligated in any way to
pay any commission, fee, or other remuneration to any finder, broker, or the
like employed by any party in connection with the transactions contemplated
by this Agreement or its negotiation, execution, or performance, except for
the fees and expenses of Xxxxxxxx Advisory Services, Inc., for which Seller
shall be solely responsible.
(ii) Accounts Receivable. Seller warrants that all of the Accounts
Receivable of UT reflected in the Acquisition Balance Sheet and Exhibit H,
and all of its Accounts Receivable that have arisen since the Acquisition
Balance Sheet date (except Accounts Receivable that have been collected since
the Acquisition Balance Sheet date) are valid and enforceable claims that are
fully in accordance with their terms collectible except to the extent of the
amount of the reserve for bad debts set forth in the Acquisition Balance
Sheet, and the reserve is in all material respects adequate.
(jj) Purchase Commitments and Outstanding Bids. No material purchase
commitments of UT are in excess of normal, ordinary, and usual requirements
of its business, or were made at a price in excess of the market price, or
contain terms and conditions more onerous than those usual and customary in
the industry or in the Ordinary Course of Business.
4. REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Seller that the statements
contained in this Section 4 are correct and complete as of the Closing Date,
except as set forth in the disclosure schedule attached hereto as Exhibit F
and initialed by the Parties ("Buyer's Disclosure Schedule"). The Buyer's
Disclosure Schedule will be arranged in paragraphs corresponding to the
lettered and numbered paragraphs contained in this Section 4.
Page 16 of 30
(a) Organization of the Buyer. Canterbury is a corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of Pennsylvania.
(b) Authorization of Transaction. Canterbury has full power and
authority (including full corporate power and authority) to execute and
deliver this Agreement and to perform its obligations hereunder. This
Agreement constitutes the valid and legally binding obligation of Canterbury,
enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby will
(i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which the Buyer is subject or
any provision of its charter or bylaws 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 arrangement to which the Buyer is a party or by which it is bound or
to which any of its assets is subject. Canterbury does not need to give any
notice to, make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement.
(d) Government Authorization. Buyer is not required to submit any
notice, report or other filing with any governmental authority in connection
with the execution or delivery by it of this Agreement or the consummation of
the transactions contemplated hereby. Canterbury has made all filings
required by the Securities Act of 1933 and the Securities Exchange Act, as
amended, and such filings did not contain any material misstatement or omit
to state a material fact required to make the statements therein not
misleading.
(e) Intentionally Omitted.
(f) Consents. No consent, waiver or approval of, or notice to, any
third party is required or necessary to be obtained by Buyer in connection
with the execution and delivery of this Agreement and the performance of
Buyer's obligations hereunder.
(g) Investment Intent. The Stock will be acquired for investment by
Buyer for its own account, not as nominee or agent, and not with a view to
the sale or distribution of any part thereof; Buyer has no present intention
of selling, granting any participation in or otherwise distributing the
Stock; Buyer does not have any contract, undertaking, agreement or
arrangement with any Person to sell, transfer or grant participations to such
Person or to any third Person, with respect to any of the Stock. Buyer
understands and acknowledges that the sale of the Stock pursuant to this
Agreement will not be registered under the federal or state securities laws
on the ground that the sale provided for in this Agreement is exempt under
such securities laws, and that Seller's reliance on such exemption is
predicated on Buyer's representations set forth herein.
Page 17 of 30
5. CERTAIN OTHER AGREEMENTS
The Parties further agree as set forth below in this Section 5:
(a) Non-Compete. Ceridian agrees not to compete against the business
of UT, as it existed or was planned to exist at Closing, for a period of
three (3) years from the Closing. CITI and UT each agree that this non-
compete covenant does not apply to training and other related services
offered by Ceridian related to Ceridian products and services sold to its
current or future customers or the customers of Persons in which Ceridian has
or will enter into strategic alliances, specifically excluding strategic
alliances related to training associated with PeopleSoft, Oracle and SAP
enterprise resource planning ("ERP" products. The Parties acknowledge that
for the purposes of this Section 5(a), the phrase "business of UT, as it
existed or was planned to exist at Closing" shall mean the services
associated with the development and delivery of customized client training
programs in support of client in-house ERP systems such as PeopleSoft, Oracle
and SAP, or client proprietary in-house ERP applications, using a blend of
traditional and electronic delivery technology.
(b) Personnel Matters. It is CITI's and Ceridian's intention to
cause an orderly transition of employee benefits from Ceridian maintained or
sponsored plans to benefit plans CITI has put in place for UT employees at
the time of the Closing. Ceridian and CITI agree to assist each other in the
transition of benefits to UT employees in order to insure minimal employee
disruption during the transition.
(i) 401(k) Plan. The funds of any employees of UT contained in
any Ceridian sponsored 401(k) plan shall remain in such plan(s) until such
time as permitted by law or plan document to be distributed to any such
employee at such employee's direction. The employees of UT shall have the
right to join the existing 401(k) program in effect at CITI subject to its
terms and conditions.
(ii) Ceridian Employee Stock Purchase Plan. The funds of any
employees of UT held to purchase Ceridian stock under Ceridian's Employee
Stock Purchase Plan will be returned to such employees pursuant to the terms
of such plan following the Closing.
(iii) Pension Plan. Employees of UT that participate in
Ceridian's pension plan ceased active participation as of August 31, 2001.
Ceridian will retain all current and future liability for any existing
pension plan benefits for existing UT employees.
(iv) CITI Employee Stock Purchase Plan. Employees of UT will
become eligible to participate in the CITI Employee Stock Option Plan subject
to its terms and conditions.
Page 18 of 30
(v) Health and Welfare Plans.
(1) Continuation of Benefits. Until the Closing Date,
Ceridian will have continued to provide and administer for the benefit of UT
employees the employee welfare benefit plans, dependent care assistance plans
and fringe benefit plans in place for such employees immediately prior to the
Effective Date (the "Current Benefit Plans"). Current Benefit Plans include,
but may not be limited to, long-term disability insurance, life insurance,
accidental death and dismemberment insurance, dependent life insurance,
business travel accident insurance, medical coverage, dental coverage, vision
coverage, employee assistance program, and cafeteria plan medical and
dependent care flexible spending accounts.
(2) Termination of Benefits. All UT employees will cease
to participate in and to be entitled to any benefits under the Current
Benefit Plans as of the Closing Date, except to the extent that benefits are
earned prior to the Closing Date under any such plan and payable following
the Closing Date. No UT employee or person claiming benefits under a Current
Benefit Plan by reason of his or her relationship to a UT employee will have
any right to continue to earn or receive benefits under any Current Benefit
Plan following the Closing Date under any federal or state law relating to
benefit continuation.
(3) Allocation of Benefit Costs. Ceridian will record
all costs incurred by Ceridian and any of the Current Benefit Plans that are
attributable to UT employees after the Effective Date, including, but not
limited to: all insurance premiums paid for coverage of such employees and
their dependents after the Effective Date; all medical, dental and vision
benefits paid under any self-insured plan for expenses incurred after the
Effective Date; all charges for employee assistance programs after the
Effective Date; and, separately, all reimbursements made under a cafeteria
plan flexible spending account after the Effective Date.
(4) Indemnification. CITI shall, within 30 days of a
written demand by Ceridian, pay to Ceridian the aggregate costs of providing
benefits to UT employees and their dependents under the Current Benefit Plans
after the Effective Date, excluding cafeteria plan spending account
reimbursements. Ceridian may make such demand at any time following the
Closing Date and may, from time to time, make further demand; provided that
no demand may be made more than 15 months after the Closing Date.
(5) Cafeteria Plan Adjustment. The amount payable to
Ceridian under the preceding paragraph will be increased by the Net Cafeteria
Plan Loss or decreased by the Net Cafeteria Plan Gain, as the case may be.
Net Cafeteria Plan Loss means an excess of (a) total contributions received
by Ceridian from UT employees prior to the Closing Date for allocation to
medical and dependent care assistance flexible spending accounts under
Ceridian's cafeteria plan, over (b) the total amount of reimbursements made
to UT employees from medical and dependent care assistance flexible spending
accounts under Ceridian's cafeteria plan for the plan year in which the
Page 19 of 30
Effective Date occurs. Net Cafeteria Plan Gain means an excess of (b),
above, over (a), above. An adjustment under this paragraph shall be made at
the time of each demand made under the preceding paragraph based on the data
then reasonably available to Ceridian.
(6) New UT Benefit Plans. CITI shall assure that, from
the Closing Date, welfare and benefit plans are provided to employees of UT.
(c) Receipt and Transfer of Funds; Accounts Receivable.
(i) Receipt and Transfer of Funds from Effective Date through
Closing. CITI shall reimburse Ceridian for all funds advanced by Ceridian to
UT during the period between the Effective Date and the Closing, including
but not limited to such funds related to UT payroll, accounts payable and
sales taxes. At the Closing, CITI will reimburse Ceridian for all of such
funds reflected in an invoice that will be delivered by Ceridian prior to the
Closing. Within thirty (30) days after the Closing, Ceridian will invoice
CITI for any remaining funds that were not paid at Closing. CITI will pay
such final invoice upon receipt.
(ii) Accounts Receivable. All UT Accounts Receivable as of the
Effective Date that remain uncollected (in excess of any Accounts Receivable
reserve reflected on the Acquisition Balance Sheet) can, at CITI's election,
be put back to Ceridian one hundred eighty (180) days after Closing for
Ceridian to pursue collection and receive the proceeds thereof. Ceridian
shall be responsible for ninety percent (90%) of such Accounts Receivable put
back to it by CITI, except for any PDI receivable for which Ceridian shall be
one hundred percent (100%) responsible. The amount of the principal (and
associated interest payment) on the one million two hundred thousand dollar
($1,200,000) promissory note due to Ceridian on the first anniversary of
Closing will be reduced by a) ninety percent (90%) of the amount of the
Accounts Receivable put back to Ceridian, except for any PDI receivable put
back to Ceridian, plus interest on such amount at seven percent (7%) from the
date of the put to the first anniversary of Closing, and b) one hundred
percent (100%) of the amount of the PDI receivable put back to Ceridian plus
interest on such amount at seven percent (7%) from the date of the put to the
first anniversary of Closing.
Subsequent to Closing, Canterbury will provide Ceridian with a monthly
progress report on its good faith efforts to collect accounts receivable
amounts subject to the put back to Ceridian.
(d) Purchase of Formerly Leased Computers.
(i) Buyout of UT Computer Lease. Prior to the Closing,
Ceridian will purchase all of California First Leasing Corporation's
("CalFirst", formerly Amplicon, Inc.) and Hitachi Credit America
Corporation's ("Hitachi") interest in the Lease Agreement Order OL-10762 and
Lease Schedule 01 that had been entered into by UT.
(ii) Purchase of Computers by UT. As a result of this buyout and
Page 20 of 30
as a condition to the Closing, Ceridian shall sell to UT IBM PC computers and
related equipment and software (the "Computers") as identified by make and
serial number on Exhibit J as annexed hereto.
(iii) Payment for Computers by UT. At Closing, UT agrees to pay
Ceridian for the Computers with a promissory note in the amount three hundred
sixty four thousand seven hundred three and 01/100 ($364,703.01) dollars as
annexed hereto as Exhibit K ("Computer Promissory Note"). The Computer
Promissory Note will incur interest at the rate of three and 75/100 (3.75%)
percent per annum, will be payable monthly beginning October 28, 2001, and
will be secured by a security interest in the Computers. CITI shall
guarantee all obligations of UT under the Computer Promissory Note pursuant
to a guarantee agreement.
(iv) Additional Documentation. CITI and UT each agree to
provide and execute such other documents as may be necessary to perfect
Ceridian's security interest in the Computers.
(v) Condition of Computers. CITI and UT acknowledges that the
Computers have been sold to UT without any warranty or representation, either
expressed or implied, as to the fitness, quality, condition, merchantability
or performance and that the Computers were purchased in an "As is, where is
and with all faults" condition.
(e) Cessation of Use of Ceridian Name. From the Closing Date,
neither CITI nor UT shall use the name "Ceridian" or any derivative thereof;
provided, however, that UT may continue to use marketing, promotional and
other non-contractual materials containing the name "Ceridian" until the
later of (i) ninety (90) days from the Closing Date or (ii) until the
supplies of such materials in existence on the date of this Agreement are
exhausted.
(f) Tax Matters.
(i) Cooperation. Ceridian, UT and CITI shall cooperate with,
and make available to, each other such tax data, Tax Returns and other
information as may be reasonably required in connection with (i) the
preparation or filing of any Tax Return, election, consent or certification,
or any claim for refund, (ii) any determinations of liability for Income
Taxes, or (iii) any audit, examination or other proceeding in respect of
Income Taxes ("Tax Data"). Such cooperation shall include without limitation
making their respective employees and independent auditors reasonably
available on a mutually convenient basis for all reasonable purposes,
including without limitation to provide explanations and background
information and to permit the copying of the books, records, schedules, work
papers, notices, revenue agent reports, settlement or closing agreements and
other documents containing the Tax Data ("Tax Documentation").
(ii) Retention. The Tax Data and the Tax Documentation,
including, the books, records, schedules, work papers, notices, revenue agent
reports, settlement or closing agreements and other documents containing the
Tax Data shall be retained until one year after the expiration of the
applicable statute of limitations (including extensions thereof); provided,
Page 21 of 30
however, that in the event a tax claim or proceeding, an audit, examination,
investigation or other proceeding has been instituted prior to the expiration
of the applicable statute of limitations (or in the event of any claim under
this Agreement), the information shall be retained until there is a final
determination thereof (and the time for any appeal has expired).
(iii) Income Taxes. For Tax periods that begin on or prior to
the Closing Date and end after the Closing Date ("Straddle Periods"), Income
Taxes shall be allocated and apportioned to the parties on the basis of an
interim closing of the books as of the end of the Closing Date. Ceridian
shall be responsible for Income Taxes relating to the portion of the period
ending on the Closing Date and CITI shall be responsible for Income Taxes
relating to the portion of the period after the Closing Date. Ceridian shall
prepare the interim closing of the books by November 15, 2001 and submit such
closing to CITI for its review and approval. If the Parties are unable to
agree on the interim closing, the dispute shall be submitted by the Parties
to a mutually agreeable accounting firm for resolution, with each party
paying 50% of the relevant fees of the accounting firm. The Income Tax
Returns for such Straddle Periods shall be prepared by Ceridian.
(iv) State Tax Returns. Ceridian agrees to deliver to Buyer
prior to October 31, 2001, copies of State Tax Returns for UT for fiscal year
2000.
(g) Post-Closing Access. For a period of three years after the
Closing, CITI shall afford Ceridian reasonable access to all the books and
records relating to the Corporate Assets and the business of UT for matters
related to (i) the preparation of Ceridian's SEC filings or audit, (ii) any
other reasonable need of Ceridian relating to UT's operation of its business
prior to the Closing, or (iii) any claim asserted against Ceridian. Such
access shall be afforded by CITI upon the receipt of reasonable advance
notice and during normal business hours and shall be had or done in such a
manner so as not to interfere with the normal conduct of business of CITI.
(h) Additional Documentation. The Parties acknowledge that further
agreements and documents both prior to and subsequent to Closing, in addition
to the Exhibits appended hereto, may be required in order to effect the
transactions contemplated hereunder. Each Party agrees to provide and execute
such other and further agreements or documentation as, in the opinions of
respective counsel, are reasonably necessary to effect the transactions
contemplated hereunder and to maintain regulatory and legal compliance.
Furthermore, Ceridian agrees to fully cooperate in providing requested
information, documentation and records in any audit of UT initiated by CITI,
in a timely and cost effective manner.
(j) Set-off. Any other payment owed by Ceridian to CITI under this
Agreement, by indemnification or otherwise, shall be deducted from each
payment to Ceridian on said Promissory Note at the yearly anniversary date of
the Closing, in amounts accepted by Ceridian.
Page 22 of 30
6. CONDITIONS TO OBLIGATION TO CLOSE
(a) Conditions to Obligation of the Buyer. The obligation of the
Buyer to consummate the transactions to be performed by it in connection with
the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 3
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator,
wherein an unfavorable injunction, judgment, order, decree, ruling, or charge
would (A) prevent consummation of any of the transactions contemplated by
this Agreement, (B) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation, or (C) affect adversely and
materially the right of the Buyer to own the Corporate Assets and to operate
UT;
(iii) the Seller shall have delivered to the Buyer a certificate
to the effect that each of the conditions specified above in Section 6(a)(i)-
(ii) is satisfied in all respects;
(iv) The Seller and the Buyer shall have received all
authorizations, consents, and approvals of governments and governmental
agencies, if any, referred to in Section 3(c) and Section 4(c) above;
(v) the Buyer shall have received assurance that all employee
issues and benefits in the future, such as 401(k) plans, health plans and
waiver of waiting period for plans, are resolved to Buyer's sole
satisfaction;
(vi) the Buyer shall be solely satisfied with its due diligence
of UT;
(vii) a Debt Subordination Agreement, in form satisfactory to
Buyer, shall be executed between Commerce Bank, N.A. and Ceridian;
(viii) the executed employment contract with Xxxx Xxxxx will
become effective immediately at the Closing;
(ix) compliance with miscellaneous covenants of Seller in
Section 5 and elsewhere in this Agreement; and
(xi) all actions to be taken by the Seller in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form and
substance to the Buyer.
Page 23 of 30
The Buyer may waive any condition specified in this Section 6(a) if it
executes a writing so stating at or prior to the Closing.
(b) Conditions to Obligation of the Seller. The obligation of the
Seller to consummate the transactions to be performed by it in connection
with the Closing is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4
above shall be true and correct in all material respects at and as of the
Closing Date;
(ii) no action, suit, or proceeding shall be pending or
threatened before any court or quasi-judicial or administrative agency of any
federal, state, local, or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree, ruling, or charge
would (A) prevent consummation of any of the transactions contemplated by
this Agreement or (B) cause any of the transactions contemplated by this
Agreement to be rescinded following consummation (and no such injunction,
judgment, order, decree, or charge shall be in effect); and
(iii) all actions to be taken by the Buyer in connection with
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably satisfactory in form and
substance to the Seller.
The Seller may waive any condition specified in this Section 6(b) if it
executes a writing so stating at or prior to the Closing.
7. Intentionally Omitted
8. INDEMNIFICATION
(a) Survival of Representations and Warranties. All of the
representations and warranties of each of the Parties contained in this
Agreement shall survive the Closing and continue in full force and effect
thereafter for a period of three (3) years following the date of Closing (the
last day of which shall be the "Expiration Date").
(b) Indemnification Provisions for Benefit of the Buyer. Subject to
the limitations set forth in Section 8(e) below:
(i) In the event the Seller breaches any of its material
representations and warranties contained in this Agreement, and, provided
that the Buyer makes a written claim for indemnification against the Seller
prior to the Expiration Date, then Seller agrees to indemnify the Buyer from
and against the entirety of any Losses that result directly from such breach
in an amount up to the total purchase price paid the Buyer may suffer through
and after the date of the claim for indemnification including any Losses the
Buyer may suffer after the end of any applicable survival period resulting
Page 24 of 30
from, arising out of, relating to, in the nature of, or caused by the breach.
Furthermore, in the event Seller breaches any of its material covenants
contained in this Agreement, and, provided that the Buyer makes a written
claim for indemnification against the Seller, then Seller agrees to indemnify
the Buyer from and against the entirety of any Losses that result directly from
such breach in an amount up to the total purchase price paid the Buyer
may suffer through and after the date of the claim for indemnification
including any Losses the Buyer may suffer after the end of any applicable
survival period resulting from, arising out of, relating to, in the nature
of, or caused by the breach. CITI shall have the right to set off the
cumulative amount (including imputed interest) of any indemnity claims, in
amounts accepted by Ceridian, annually against the principal and interest
amounts owed to Ceridian under the Promissory Note on the first, second and
third anniversaries of Closing; and if that set-off sum is not sufficient to
fully reimburse CITI for any accepted indemnity claims, then the excess shall
be reimbursed by Ceridian to CITI.
(ii) For purposes of this Section 8, the term "Losses" shall
mean all actions, suits, proceedings, hearings, investigations, charges,
complaints, claims, demands, injunctions, judgments, orders, decrees,
rulings, damages, dues, penalties, fines, costs, amounts paid in settlement,
liabilities, obligations, taxes, liens, losses, expenses, and fees, including
court costs and reasonable attorneys' fees and expenses.
(iii) Notwithstanding anything to contrary contained herein,
Seller does not agree to and shall not indemnify Buyer for any Losses which
have a Basis that arises or occurs after the Closing.
(c) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give
rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Section 8, then the Indemnified Party shall
promptly notify each Indemnifying Party thereof in writing; provided,
however, that no delay on the part of the Indemnified Party in notifying any
Indemnifying Party shall relieve the Indemnifying Party from any obligation
hereunder unless (and then solely to the extent) the Indemnifying Party
thereby is prejudiced.
(ii) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third Party Claim with counsel of its choice
reasonably satisfactory to the Indemnified Party so long as (A) the
Indemnifying Party notified the Indemnified Party in writing with 15 days
after the Indemnified Party has given notice of the Third Party Claim that
the Indemnifying Party will, to the full extent required by this Agreement,
indemnify the Indemnified Party from and against the entirety of any Losses
the Indemnified Party may suffer resulting from, arising out of, relating to,
in the nature of, or caused by the Third Party Claim, (B) the Indemnifying
Party provides the Indemnified Party with evidence reasonably acceptable to
the Indemnified Party that the Indemnifying Party will have the financial
resources to defend against the Third Party Claim and fulfill its
indemnification obligations hereunder, (C) the Third Party Claim involves
Page 25 of 30
only money damage and does not seek an injunction or other equitable relief,
(D) settlement of, or an adverse judgment with respect to, the Third Party
Claim is not, in the good faith judgment of the Indemnified Party, likely to
establish a prejudicial custom or practice materially adverse to the
continuing business interests of the Indemnified Party, and (E) the
Indemnifying Party conducts the defense of the Third Party Claim actively and
diligently.
(iii) So long as the Indemnifying Party is conducting the defense
of the Third Party Claim in accordance with Section 8(c)(ii) above, (A) the
Indemnified Party may retain separate co-counsel at its sole cost and expense
and participate in the defense of the Third Party Claim, (B) the Indemnified
Party will not consent to the entry of any judgment or enter into any
settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party (not to be withheld unreasonably), and (C)
the Indemnifying Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the prior
written consent of the Indemnified Party (not to be withheld unreasonably).
(iv) In the event any of the conditions in Section 8(c)(ii)
above is or becomes unsatisfied, however, (A) the Indemnified Party may
defend against, and consent to the entry of any judgment or enter into any
settlement with respect to, the Third Party Claim in any manner it reasonably
may deem appropriate (and the Indemnified Party need not consult with, or
obtain any consent from, any Indemnifying Party in connection therewith), (B)
the Indemnifying Parties will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Third Party Claim
(including reasonable attorneys' fees and expenses), and (C) the Indemnifying
Parties will remain responsible for any Losses the Indemnified Party may
suffer, result from, arising out of, relating to, in the nature of, or caused
by the Third Party Claim to the fullest extent provided in this Section 8.
(d) Indemnification Provisions for Benefit of the Seller.
(i) In the event the Buyer breaches any of its material
representations and warranties contained in this Agreement, and, provided
that the Seller makes a written claim for indemnification against the Buyer
prior to the Expiration Date, then Buyer agrees to indemnify the Seller from
and against the entirety of any Losses that result directly from such breach
that the Seller may suffer through and after the date of the claim for
indemnification including any Losses the Seller may suffer after the end of
any applicable survival period resulting from, arising out of, relating to,
in the nature of, or caused by the breach. Furthermore, in the event Buyer
breaches any of its material covenants contained in this Agreement, and,
provided that the Seller makes a written claim for indemnification against
the Buyer, then Buyer agrees to indemnify the Seller from and against the
entirety of any Losses that result directly from such breach that the Seller
may suffer through and after the date of the claim for indemnification
including any Losses the Buyer may suffer after the end of any applicable
survival period resulting from, arising out of, relating to, in the nature
of, or caused by the breach.
Page 26 of 30
(ii) For purposes hereof, the term "Losses" shall have the same
meaning as set forth in Section 8(b)(ii) above, and all other capitalized
terms shall have the meaning elsewhere provided in this Agreement.
(e) Limitations and Conditions on Indemnification. Except as
otherwise specifically provided in this Agreement:
(i) Indemnity obligations of the Buyer hereunder shall be
satisfied through the payment of cash. Indemnity obligation of Seller
hereunder shall be satisfied through set offs of monies due Seller by Buyer,
and then by cash.
(ii) Except as specifically set forth in this Agreement, no
Party shall be entitled to indemnity for claims or conditions which have been
waived by such Party.
(iii) Upon making a claim for indemnification, the Indemnifying
Party shall be subrogated, to the extent of such payment, to any rights that
the Indemnified Party may have against any other Parties with respect to the
subject matter underlying such indemnified claim.
(iv) Each Party's rights under Section 8 hereof (as specifically
limited thereby) shall be the exclusive means by which such Party shall seek
money damages against another Party in connection with the transactions
contemplated hereby.
9. MISCELLANEOUS
(a) Intentionally Omitted.
(b) No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the Exhibits,
Schedules and other documents referred to herein) constitutes the entire
agreement between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written or oral, to
the extent they related in any way to the subject matter hereof.
(d) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. Seller may not assign either this
Agreement or any of its rights, interests, or obligations hereunder without
the prior written approval of the Buyer. Buyer, however, upon written
notice, may assign any or all of its rights, interest or obligations
hereunder.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, including counterparts transmitted by telecopier or FAX, any
Page 27 of 30
one of which shall constitute an original of this Agreement. When
counterparts of facsimile copies have been executed by all Parties, they
shall have the same effect as if the signature to each counterpart or copy
were upon the same document and copies of such documents shall be deemed
valid as originals. The Parties agree that all such signatures may be
transferred to a single document upon the request of any Party.
(f) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and other
communications given or delivered under or by reason of the provisions of the
Agreement will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given if (and then two business
days after) it is personally delivered and signed for, sent by reputable
overnight delivery service or by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set
forth below:
If to the Seller: Copy to:
Xxxxxx X. Xxxxxxxx Ceridian Corporation
Senior Vice President Attn: Office of the General Counsel
Ceridian Corporation 0000 Xxxx Xxx Xxxxxxxx Xxxx
0000 Xxxx Xxx Xxxxxxxx Xxxx Xxxxxxxxxxx, XX 00000-0000
Xxxxxxxxxxx, XX 00000-0000 (000) 000-0000
(000-000-0000 (000) 000-0000 (fax)
(000) 000-0000 (fax)
If to the Buyer: Copy to:
Xxxxx X. XxXxxxxx, President Xxxxxxx X. Xxxx, Esquire
Canterbury Consulting Group, Inc. Levy & Levy, P.A.
1600 Medford Xxxxx Xxxxx 0000, Xxxxx 000
Xxxxx 00 & Hartford Road Main Street
Medford, NJ 08055 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
(000) 000-0000 (fax) (000) 000-0000 (fax)
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the recipient at the address set forth above using any other
means (including personal delivery, expedite messenger service, telecopy,
telex, ordinary mail, or electronic mail), but no such notice, request,
demand other communication shall be deemed to have been duly given unless and
until it actually is received by its intended recipient. Any Party may
change the address to which notices, requests, demands, claims, and other'
communications hereunder are to be delivered by giving the other Party notice
in the manner herein set forth.
Page 28 of 30
(h) Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic laws of the State of New Jersey without
giving effect to any choice or conflict of law provision or rule (whether of
the State of New Jersey, or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of New
Jersey.
(i) Amendments and Waivers. No amendment or waiver of any provision
of this Agreement shall be valid unless the same shall be in writing and
signed by all of the Parties. No waiver by any Party of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent
such occurrence.
(j) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision
in any other situation or in any other jurisdiction.
(k) Expenses and Brokers/Finders' Fees. Ceridian and CITI shall bear
its own costs associated with this Agreement, the Closing, and all ancillary
or related measures, including without limitation, costs of attorneys' fees,
accountants' fees, or other costs or expenses, without right or recourse from
the other. However, without limiting the foregoing, CITI will be responsible
for any external auditing fees and expenses that are incurred as a result of
this transaction and Ceridian shall be responsible for all fees and expenses
of any "Finders" including but not limited to Xxxxxxxx Advisory Service, Inc.
(l) Intentionally Omitted.
(m) Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be
construed as if drafted jointly by the Parties and no presumption or burden
of proof shall arise favoring or disfavoring any Party by virtue of the
authorship of any of the provisions of this Agreement. Any reference to any
federal, state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. The word "including" shall mean including without
limitation.
(n) Specific Performance. Each of the Parties acknowledges and
agrees that any other Party would be damaged irreparably in the event any of
the provisions of this Agreement are not performed in accordance with their
specific terms or otherwise are breached. Accordingly, each of the Parties
agrees that any other Party, shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically this Agreement and the terms and provisions hereof in
any action instituted in any court of the United States or any state thereof
Page 29 of 30
having jurisdiction over the Parties and the matter in addition to any other
remedy to which it may be entitled, at law or in equity (except as limited by
this Agreement).
(o) Arbitration. All claims, disputes and other matters in question
hereunder arising out of or relating to this Agreement or the transactions
contemplated herein shall be decided by binding arbitration in accordance
with the rules of the American Arbitration Association unless the parties
mutually agree otherwise. Such arbitration shall take place in Philadelphia,
Pennsylvania. The award rendered by the arbitrator shall be final, and
judgment may be entered upon in accordance with applicable law in any court
having jurisdiction thereof.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on
the date first above written.
CANTERBURY CONSULTING GROUP, INC.
By: /s/Xxxxx X. XxXxxxxx
----------------------------------------------------------
Xxxxx X. XxXxxxxx, President
CERIDIAN CORPORATION
By: /s/Xxxxxx X. Xxxxxxxx
----------------------------------------------------------
Xxxxxx X. Xxxxxxxx, Senior Vice President - Technology
Page 30 of 30
EXHIBIT A
Intentionally Left Blank
EXHIBIT B
FINANCIAL STATEMENTS
UNAUDITED BALANCE SHEET AND INCOME STATEMENT
FOR YEAR ENDED DECEMBER 31, 2000
USERTECH
Balance Sheet
As of December 31, 2000
(in 000's)
As of
Dec. 31, 2000
-------------
Assets
Current Assets:
Cash 450
Accounts Receivable 3,686
Other Receivables 0
Deferred Taxes - Current 95
Prepaid Rent 65
Other prepaid and other current 0
-----
Total Current Assets 4,296
Fixed Assets 311
Deferred taxes non-current 64
Goodwill & Intangibles 2,073
-----
Total Assets 6,744
=====
Liabilities
Deferred Income 102
Accounts Payable 555
Employee Benefits 462
Accrued Income Taxes (930)
Sales & Real Estate Taxes 1
Other Accruals 17
-----
Total Liabilities 207
=====
-----
Pro Forma Net Worth 6,537
=====
EXHIBIT C
FINANCIAL STATEMENTS
UNAUDITED INCOME STATEMENT
FOR THE EIGHT MONTHS ENDED AUGUST 31, 2001
USERTECH
Balance Sheet
As of August 31, 2000
(in 000's)
As of
Aug. 31, 2001
-------------
Assets
Current Assets:
Accounts Receivable 2,550
Other Receivables 43
Deferred Taxes - Current 47
Prepaid Rent 21
Other prepaid and other current 19
-----
Total Current Assets 2,679
Fixed Assets 129
Deferred taxes non-current 28
Other Deferred Assets
-----
Total Assets 2,836
=====
Liabilities
Deferred Income 53
Accounts Payable 120
Employee Benefits 242
Accrued Income Taxes 0
Sales & Real Estate Taxes 0
Other Accruals 5
-----
Total Liabilities 420
=====
-----
Pro Forma Net Worth 2,416
=====
EXHIBIT D-1
ACQUISITION BALANCE SHEET
UNAUDITED BALANCE SHEET
AS OF SEPTEMBER 1, 2001
USERTECH
Opening Balance Sheet
September 1, 2001
(in 000's)
Pay Days 23
Work Days 22
As of
Sept. 1, 2001
-------------
Assets
Current Assets:
Accounts Receivable 2,550
Other Receivables 43
Deferred Taxes - Current 47
Prepaid Rent 21
Other prepaid and other current 19
-----
Total Current Assets 2,679
Fixed Assets 494 ***
Deferred taxes non-current 28
Other Deferred Assets
-----
Total Assets 3,201
=====
Liabilities
Deferred Income 53 Deferred Revenue (schedule
attached)
Accounts Payable 120 Comprised of A/P ($109K),
Training accrual ($1K), and
Tradeshow accrual ($10K).
Employee Benefits 308 Comprised of Exec. Bonus
($44K), P/R accrual ($154K),
Commissions accrual ($21K),
and PDO accrual ($89K).
Accrued Income Taxes 0
Sales & Real Estate Taxes 0
Long Term Capital Lease 365 ***
Other Accruals 5 President's Awards accrual
----- ($5K).
Total Liabilities 851
===== -----
Pro Forma Net Worth 2,350
=====
*** NOTE:
The promissory note for the IBM laptops is treated as a capital lease
for this presentation, even though the note is not in effect until the
closing on September 28, 2001.
EXHIBIT X-0
XXXXXXXXX 0, 0000 XXXXXXXX OF ASSETS
EXHIBIT E
SELLER'S DISCLOSURE SCHEDULE - SECTION 3 (a) through (jj)
EXHIBIT E
SELLER'S DISCLOSURE SCHEDULE
Attached hereto is the "Seller's Disclosure Schedule" referred to in
Section 3 of the Stock Purchase Agreement dated as of September 28, 2001 (the
"Agreement"), by and between Canterbury Consulting Group, Inc., a
Pennsylvania corporation ("Canterbury", "CITI" or "Buyer"), and Ceridian
Corporation, a Delaware corporation ("Ceridian", "Shareholder" or "Seller")
and sole stockholder of User Technology Services Inc., a New York corporation
("UT"). Descriptive headings in the attached Seller's Disclosure Schedule
are inserted for reference purposes only and shall not (i) modify or affect
the representations and warranties contained in the Agreement to which such
section of the attached Seller's Disclosure Schedule relates, or (ii) limit
the scope or type of information to be set forth in such section of the
attached Seller's Disclosure Schedule pursuant to the Agreement.
The parties acknowledge delivery of the attached Seller's Disclosure
Schedule and, except as noted herein, Buyer acknowledges receipt of copies of
the various written contracts and agreements referenced in the Seller's
Disclosure Schedule as of September 28, 2001.
Canterbury Consulting Group, Inc.
By:/s/Xxxxx X. XxXxxxxx
--------------------------------------
Xxxxx X. XxXxxxxx
President
Ceridian Corporation
By:/s/Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxx
Senior Vice President - Technology
Section 3(c)
Noncontravention
(iii) 1. GSA Schedule Contract No. GS-35F-0337L.
UT has a GSA schedule contract with the federal government. This
schedule sets out certain services that the federal government
may buy from UT, and the prices and terms for those purchases.
The GSA number was obtained by UT on April 11, 2001 and is
effective until April 10, 2006. UT has not yet obtained any
contracts with the government under this GSA schedule. Immix
Group, the consulting firm that assisted UT in obtaining its GSA
schedule, has informed UT that a change in ownership will require
UT to file a novation agreement with the federal government.
Copies of the materials provided by Immix Group to UT have been
provided to Buyer.
Section 3(d)
Title to Assets
1. UT's employee population is over 70% remote, or virtual. UT defines
remote employees as those who use their home as their primary workplace
when they are not at a client site. To facilitate work from home
offices, UT may provide the following company-owned assets to remote
employees: a laptop computer or computers; software; a printer; a zip
drive, and a fax machine. In addition, UT pays for the monthly cost of
a business phone line in each remote employee's home. Employees are
directed to have the phone set up in UT's name, and billed directly to
the UT Headquarters office in East Norwalk, CT. For certain key
employees, UT also reimburses the cost of a business-related cell phone
or pager. Furthermore, UT provides each remote employee with a $200
stipend 90 days following the date of hire, for use in purchasing
office equipment that the employee will use in performing work for UT.
The purchased equipment, though reimbursed through the stipend, remains
the property of the employee. All other office equipment originally
owned or purchased by a remote employee and used in the remote
employee's home in the course of normal company business is the
property of the employee, and not an asset of UT. Examples of equipment
owned by remote employees and used for UT business include, but are not
limited to: telephones, telephone headsets, filing cabinets, desks, and
office chairs.
Section 3(f)
Financial Statements
1. In connection with this transaction, at Buyer's request, certain
accruals, Accounts Receivable and reserves were removed, adjusted or
transferred from UT's books effective July 31, 2001 and August 31,
2001, including, but not limited to, the following:
2
* Accounts Receivable and reserves for Integrated Health
($83,030.45), Skill Set Software ($65,981.54), Envision
($33,964.60), and Xxxx.xxx ($10,500).
* Reclassification of the balance of Unbilled Receivables to
Trade Receivables.
* $92,288.09 receivable related to East Norwalk facility
improvement.
All receivables have been transferred to Ceridian. Ceridian is
pursuing the collection of such receivables for its own benefit.
2. See disclosure contained in Section 3(j) below. No accruals have been
established on the books of UT for any potential liability associated
with the disclosed tax filings that were not made by UT.
Section 3(g)
Events Subsequent to Most Recent Calendar Month End
(i) 1. In connection with the closing of UT's offices at 000 Xxxxx
Xxxxxx Xxxxx, Xxxxxxx, XX, XX will dispose of or has disposed of
certain unwanted office equipment that in the aggregate may have
a value in excess of $1,000.
(ii) 1. Sublease Agreement, dated September 28, 2001, between Ceridian
and UT relating to approximately 2,367 square feet of space
located at Xxx Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, XX. Copies of
underlying Lease Agreement with landlord also provided.
2. Assignment and Assumption Agreement, dated September 28, 2001,
between Ceridian and UT related to lease pertaining to property
located at Park 00 Xxxx Xxxxx Xxx, Xxxxxxxxxxx, XX. Copies of
underlying Lease Agreement with landlord also provided.
3. Apartment lease at 00000 Xxx Xxxxx Xxxx, #0000, Xxxxxxx, XX.
Lease transferred from Ceridian to UT/Canterbury on September 6,
2001. In addition, a Cort Furniture Rental Lease #793555 between
Ceridian and Cort to furnish the Fairfax, VA apartment was also
transferred to UT effective September 1, 2001.
(iii) 1. UT plans on terminating its current contract with PSINet. See
disclosure in Section 3(m)(ii) below. Such disclosure is
incorporated by reference.
(v) 1. Terminated Lease Agreement Order OL-10762 and Lease Schedule 01
between UT and California First Leasing Corporation (f/k/a
Amplicon) (the "Amplicon Computer Lease").
3
The Amplicon Computer Lease would have been in default upon a
change of control of UT. On August 16, 2001, UT has terminated
the Computer Lease in exchange for a payment of $676,721, plus
applicable taxes that was funded by Ceridian. UT will receive
the computers and related equipment under such Computer Lease
("Computers"). Ceridian funded the $676,721 plus tax payment on
behalf of UT in exchange for the Computers. Ceridian has
permitted UT to use 95 of these Computers until the Closing. At
the Closing, Ceridian will sell the 95 Computers to CITI. Copies
of the Amplicon Computer Lease, the Termination Agreement and
Xxxx of Sale have been provided to Buyer.
(ix) 1. See disclosure found in Section 3(f) above relating to
adjustments to UT's financial statements. Such disclosure is
incorporated herein by reference.
(xviii) 1. Xxxxxxx Xxxx has taken an unpaid personal leave of absence. Xx.
Xxxx plans on returning from her leave in November of 2001.
Section 3(j)
Tax and Other Returns and Reports
1. Income Taxes - Income tax returns have not been filed in the following
jurisdictions in which UT had payroll and sales during at least one of
the years 1995 through 2001.
Jurisdiction Payroll and/or Sales Since
------------ --------------------------
District of Columbia 1997
Maryland 1996
Michigan 1996
Rhode Island 1998
Texas 1995
Wisconsin 1996
2. Personal Property tax - UT owned personal property, principally laptop
computers and printers that were used in the following states in which
it did not file personal property tax returns.
California
Colorado
Georgia
Kansas
Maryland
Michigan
Missouri
Nevada
New Mexico
North Carolina
4
Ohio
Oklahoma
Texas
3. Sales & Use tax - UT did not file sales and use tax returns in the
following states.
Jurisdiction Reason
------------ ------
District of Columbia no nexus
Hawaii no revenue
New Mexico no property/no revenue until 2000
South Dakota no revenue
Tennessee no payroll/no property
Section 3(k)
Intellectual Property
(iii) The following is a list of each material item of Intellectual Property
that is owned by a third party or used by UT pursuant to license,
sublicense, agreement or permission:
1. Centra Master License Agreement, effective February 23, 2000,
between Centra Software, Inc and UT. Symposium and Conference
distance learning applications.
2. Oracle Alliance Agreement, dated June 28, 1999, between Oracle
Corporation and UT. Ability to modify Oracle products for
customers.
3. License and Consultant Agreement, dated July 6, 2000, between
Global Knowledge Network, Inc. and UT. OnDemand development
tool.
4. Microsoft Open License Order Confirmation, dated December 5,
2000, between UT and Microsoft. Office Professional 2000
software.
UT has delivered to Buyer correct and complete copies of all of the
above-mentioned material licenses, sublicenses, agreements and
permissions.
Section 3(m)
Contracts
(i) 1. Lease No. 001029690-001 and No. 001029690-002 with Dell Financial
Services LP and UT.
2. Photocopier Lease Agreement between UT and Xerox Corporation
dated February 27, 2001. Pertains to Saddlebrook, NJ facility.
5
3. Cort Furniture Rental Lease Agreement #793555 between Cort and
UT. See disclosure found in Section 3(g)(ii)(3) above.
4. Telephone contracts.
* East Norwalk, CT. The Norwalk CT office telephone system
consists of an Avaya Definity 4 system with 132 extensions
including 20 active analog ports, 79 Direct Inward Dial
extensions, and 33 system lines. The current system was on a
60-month lease ending in June 2001. UT is currently on a
month-to-month plan with Comdisco for $2456.92 per month and a
maintenance contract with Avaya for $743.70 per month for a
monthly total of $3,200.62.
* Saddlebrook, NJ. The Saddlebrook telephone system is a Lucent
Merlin Legend with 51 known extensions including 10 active
Direct Inward Dial extensions, 10 Unassigned Direct Inward Dial
extensions, 19 Direct Inward Dial extensions (with active
mailboxes) assigned to former employees. The rest of the
extensions are for the conference room, kitchen, Breakout
Rooms, etc. This system was purchased for UT's former Chicago
office and moved to Saddlebrook during the construction of that
office. Since UT owns the system, there is only a monthly
maintenance contract from Exp@nets. This 60-month contract
expires on 1/5/2003 and costs UT $775.38 per month.
* Columbus, OH. The Columbus office uses a service from
Ameritech with no additional hardware. Monthly telephone
charges average around $300.00.
(ii) 1. UT has certain agreements/purchase orders that are on an as
needed basis with Print Plus, Kinkos and other office supply
vendors that are open ended and may result in the payment of
$5,000 annually.
2. Lease Agreement No. 6963198-001 with Quest Technology Finance
Lease Agreement dated July 25, 2001. Network VPN Services
Agreement with Quest Internet Solutions, Inc. dated May 9, 2001.
UT has entered into a one-year agreement with Quest to provide
dial-up Internet and Virtual Private Network (VPN) services to \
all of UT's employees. The agreement includes the FMV lease of
two routers, payable over two years. The service is scheduled to
commence in August 2001. UT has not terminated its current
provider PSINet. Thirty-days notice is required to terminate the
PSINet contract.
3. Synergy Systems.
UT has acquired a bank of service hours from its primary computer
network vendor that has a balance as of August 15, 2001 of 75
hours at a pre-paid rate of $135/hour.
6
4. The following is a list of contracts with existing customers of
UT that provide for UT furnishing services to its customers, the
performance of which may extend over a period of more than one
year and/or involve consideration in excess of $5,000:
Customer Name Contract No.
------------- ------------
ABB BUSINESS SERVICES ABB003
ALLIANT To be Assigned
ALLSTATE INSURANCE AIC000
AMERICAN AXLE AMA005
AMERICAN ELECTRIC POWER AME024
AMERICAN ELECTRIC POWER AME029
AMERICAN ELECTRIC POWER AME030
ARBITRON CER564
ARBITRON CER565
AVAYA LUC009
XXXXX INTL. CAR002
CONSOLIDATED FREIGHTWAYS CFS002
CONSOLIDATED FREIGHTWAYS CFS003
CONVERGYS CORPORATION CVG001
DAIMLER CHRYSLER CHR011
EQUILON EQL005
EQUILON EQL006
FORD FOR012
FORD FOR017
FORD FOR020
FRITO-LAY FRI003
FRONT END SOLUTIONS FSI001
XXXXXX XXXXXX MEDICAL HHM006
KRAFT FOODS KGF201
KRAFT FOODS KGF205
LA USD LAU000
LA USD LAU001
MERCK To be Assigned
MOTOROLA MTU001
MOTOROLA MTU002
MOTOROLA MTU003
MOTOROLA MTU005
NASD To be Assigned
PFIZER PRK006
PRUDENTIAL INSURANCE PRU001
QUAKER OATS QKR001
SIEMENS SIC002
SIEMENS SIC006
SOUTHERN ENERGY SEG000
STANFORD UNIVERSITY STU000
STANFORD UNIVERSITY STU001
STANFORD UNIVERSITY STU002
STANFORD UNIVERSITY STU003
STATE FARM INSURANCE SFA001
STERLING Commerce STL001
TRIBUNE TRI003
TRIBUNE TRI004
7
Customer Name Contract No.
------------- ------------
UNDERWRITERS LABS UND004
UNIVERSITY OF CONN. UCT000
US MINT USM001
Certain of the above-mentioned contracts are awaiting receipt of
signed signature pages from the customer.
5. UT maintains an arrangement with PSINet relating to its dial up
Internet services. UT intends on terminating this arrangement
which will require UT providing PSINet with 30 days advanced
notice. UT was unable to obtain a copy of this contract from
PSINet.
6. See disclosure statement in Section 3(m)(ix) below. Such
disclosure is incorporated herein by reference.
7. Xxxxxxx.xxx Recruiting Solutions Agreement dated January 1, 2001.
(iii) The following table lists those companies with which UT has contractual
alliance or partnership relationships.
+---------------------------------------------------------------------------+
|Company | Contract | Status and Notes |
|------- | -------- | ---------------- |
|-----------+-----------------------------+---------------------------------|
|Centra | Partners Program Agreement | Formal partner for DL software |
|Software, | dated September 9, 1999 | |
|Inc. | | |
|-----------+-----------------------------+---------------------------------|
|Front End | FSI Professional Agreement, | Alliance for specific project in|
|Solutions, | dated May 26, 1998 | New York State |
|Inc. | | |
|-----------+-----------------------------+---------------------------------|
|Global | License and Consulting | Partnered with OnDemand |
|Knowledge | Agreement dated July 6, | (Knowledge Products Division of |
|Network, | 2000 (Copy provided in | Global Knowledge) |
|Inc. | Section 3(k)(iii) above) | |
|-----------+-----------------------------+---------------------------------|
|Oracle | Oracle Partner Program. | Global Partner |
|Corporation| Program Member Agreement | (Not a partner for Oracle Tutor)|
| | as of August 18, 1999 | |
|-----------+-----------------------------+---------------------------------|
|Professiona| Marketing Agreement dated | Broker that finds companies that|
|Link, LLC | September 17, 2001. | need ERP services and vendors |
| | | that provide these services |
+---------------------------------------------------------------------------+
(vi) 1. See disclosure found in Section 3(g)(ii) above on certain real
property matters. Such disclosure is incorporated herein by
reference.
2. See disclosure found Section 3(g)(v) above regarding the
termination of the Amplicon Computer Lease. Such disclosure is
incorporated herein by reference.
8
3. See disclosure found in Section 3(v) below on certain
relationships between Ceridian and UT. Such disclosure is
incorporated herein by reference.
4. Comdata Telecommunications Services Term Agreement, dated August 17,
2001, between Comdata Telecommunications Services, Inc. and UT.
(vii) 1. Ceridian has a Tuition Reimbursement Program. The following UT
employees currently participate in this program: Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxx Xxxxxx-Xxxxxx and Xxxxxxx X. Xxxxxxxx. Copies of
materials related to Ceridian's Tuition Reimbursement Program for
the above-mentioned individuals has been provided to Buyer.
(ix) 1. The following is a list of employees with oral employment
arrangements with UT.
Last First Birth Salary
Name Name MI Date City State Zip Title (9/20/01)
----------------------------------------------------------------------------------------------
1 Xxxxxx Xxxxxxxxx A 10/29/53 Xxxxxx XX 00000 Accountant $64,000
----------------------------------------------------------------------------------------------
2 Xxxxx Xxxx L 2/26/68 Xxxxx XX 00000 Consultant $51,361
----------------------------------------------------------------------------------------------
3 Xxxxx Xxxxx L 10/23/61 Xxxxxxxx XX 00000 Consultant $63,000
----------------------------------------------------------------------------------------------
4 Xxxxxx Xxxxx A 10/17/65 Xxxxxxx XX 00000 Consultant $59,016
----------------------------------------------------------------------------------------------
5 Xxxxx Xxxxxx M 9/1/62 Xxxxxxxx XX 00000 Consultant $52,000
----------------------------------------------------------------------------------------------
Programmer/
6 Xxxxxxx Xxxxxx J 4/10/48 Xxxxxx XX 00000 Analyst $82,577.25
----------------------------------------------------------------------------------------------
7 Xxxxxxx Xxxxx C 11/3/44 Xxxxxx XX 00000 Consultant $69,935
----------------------------------------------------------------------------------------------
Account
8 Xxxxxxx Xxxxxx P 3/22/41 Glen Xxxxx XX 00000 Executive $66,000
----------------------------------------------------------------------------------------------
0 Xxxxx Xxxxxx X 0/00/00 Xxxxx XX 00000 President $183,750
----------------------------------------------------------------------------------------------
10 Xxxxxxxxx Xxx 2/25/58 Xxxxxxx XX 00000 Consultant $67,782
----------------------------------------------------------------------------------------------
Director,
11 XxXxxxxxx Xxxxxx M 6/18/51 Xxxxx Xxxxx XX 00000 e-Learning $96,000
----------------------------------------------------------------------------------------------
12 XxXxxxx Xxxxxxx S 1/12/61 Xxxxxxxxxxxx XX 00000 Consultant $67,400
----------------------------------------------------------------------------------------------
13 Xxxxxx Xxxxxx A 7/16/65 Xxxxxx XX 00000 Consultant $64,000
----------------------------------------------------------------------------------------------
00 Xxxxxx Xxx X 0/0/00 Xxxxxx XX 00000 Consultant $64,250
----------------------------------------------------------------------------------------------
Colorado
00 Xxxxxx Xxxxxx X 0/00/00 Xxxxxxx XX 00000 Consultant $63,000
----------------------------------------------------------------------------------------------
16 Xxxx Xxxx M 2/16/54 Xxxxxxxx XX 00000 Consultant $61,050
----------------------------------------------------------------------------------------------
Last First Birth Salary
Name Name MI Date City State Zip Title (9/20/01)
----------------------------------------------------------------------------------------------
17 Xxxxxx Xxxxxxx A 5/24/71 Xxxxxxxxxx XX 00000 Accountant $47,500
----------------------------------------------------------------------------------------------
18 Xxxxxxxxxx Xxxxxxxxx M 6/13/66 Xxxxxxxx XX 00000 Consultant $60,638
----------------------------------------------------------------------------------------------
19 Xxxxxxx Xxxxxxxx E 3/7/52 Xxx Xxxx XX 00000 Consultant $37,842 1/2 time
----------------------------------------------------------------------------------------------
20 Xxxx Xxxxxxx J 1/22/69 Xxx Xxxxx XX 00000 Consultant $70,790 STD
----------------------------------------------------------------------------------------------
21 Xxxxxx Xxxxxxx L 12/3/67 Xxxxx XX 00000 Consultant $55,825
----------------------------------------------------------------------------------------------
00 Xxxxxx Xxxxxxxx X 0/0/00 Xxxxx Xxxx XX 00000 Consultant $70,000
----------------------------------------------------------------------------------------------
00 Xxxxxxxxx Xxxx X 0/0/00 Xxxxxxxx XX 00000 Consultant $63,158
----------------------------------------------------------------------------------------------
Xxxxxxxxxx-
00 Xxxxxxxx Xxxxxxxx L 5/8/75 Xxxxxxxx XX 00000 tive Asst. $31,000
----------------------------------------------------------------------------------------------
25 Xxxxx Xxxxxxx 10/5/55 Xxxxxxx XX 00000 Consultant $68,052
----------------------------------------------------------------------------------------------
Chief Tech-
26 Xxxx Xxxxx D 4/3/49 Xxxxxx XX 00000 nology Off. $92,000
----------------------------------------------------------------------------------------------
27 Xxxx Xxx 5/19/57 Xxxxxxxxxx XX 00000 Consultant $83,460
----------------------------------------------------------------------------------------------
Dir. Of Transferred
28 Xxxxxxxx Xxxxxxx 12/21/59 Xxxxx XX 00000 Sales& Mktng $90,000 to Ceridian
----------------------------------------------------------------------------------------------
29 Xxxxxxx Xxxx 11/15/62 Xxxxx XX 00000 Consultant $75,000
----------------------------------------------------------------------------------------------
30 Xxxxxxxx Xxxxxxxxx 10/21/48 Xxxxxx XX 00000 Consultant $60,000
----------------------------------------------------------------------------------------------
Arlington
00 Xxxxxx Xxxxxx X 0/0/00 Xxxxxxx XX 00000 Consultant $65,657
----------------------------------------------------------------------------------------------
9
Last First Birth Salary
Name Name MI Date City State Zip Title (9/20/01)
----------------------------------------------------------------------------------------------
Kersta-
32 Xxxxxx Xxxxxxx 2/11/53 Xxxxxxx XX 00000 Consultant $68,619
----------------------------------------------------------------------------------------------
Crawfords-
00 Xxxxxx Xxxxxxx X 00/00/00 xxxxx XX 00000 Consultant $53,872
----------------------------------------------------------------------------------------------
Manhattan Account
34 Xxxxxxx Xxxx A 12/7/48 Xxxxx XX 00000 Executive $60,000
----------------------------------------------------------------------------------------------
Litonjua-
35 Xxxx Xxxxxxx 5/24/62 Xxxxx Xxxxx XX 00000 Consultant $71,105
----------------------------------------------------------------------------------------------
00 Xxxxxx Xxxx X 00/00/00 Xxxxxxxx XX 00000 Consultant $65,686
----------------------------------------------------------------------------------------------
37 Xxxxx Xxxx M 2/19/54 Xxxxxxxxx XX 00000 Consultant $66,250
----------------------------------------------------------------------------------------------
38 Main Xxxxxxx C 1/16/72 Xxxxxxxxx XX 00000 Consultant $64,790
----------------------------------------------------------------------------------------------
39 Xxxxx Xxxxxxx K 5/1/69 Xxx Xxxxxxx XX 00000 Consultant $56,300
----------------------------------------------------------------------------------------------
40 Xxxxx XxxxXxx K 11/18/50 Xxxxxxx XX 00000 Consultant $69,457
----------------------------------------------------------------------------------------------
00 Xxxx Xxxxxxxxx X 00/0/00 Xxxxxx XX 00000 Consultant $64,100
----------------------------------------------------------------------------------------------
Account
42 Xxxxx Xxxx T 8/15/55 Xxxxxx XX 00000 Executive $60,000
----------------------------------------------------------------------------------------------
43 Xxxxx Xxxxxxxx A 1/31/65 Xxxxxxxxxxx XX 00000 Consultant $58,500
----------------------------------------------------------------------------------------------
Palos
00 Xxxxxx Xxxxx X 0/0/00 Xxxxxxx XX 00000 Consultant $68,575
----------------------------------------------------------------------------------------------
Regional
45 Xxxxxxx Xxxxxx J 7/5/68 Xxxxxxx XX 00000 Manager $80,000 Resigned
----------------------------------------------------------------------------------------------
VP of
46 Xxxxxxx Xxxxxx L 8/16/60 Xxx Xxxxx XX 00000 Operations $110,000
----------------------------------------------------------------------------------------------
47 Xxxxx Xxxxxx H 5/10/57 Xxxxxxxxx XX 00000 Controller $86,000
----------------------------------------------------------------------------------------------
Eden VP of HR &
48 Xxxxxxxx Xxxx R 4/27/64 Xxxxxxx XX 00000 Bus Plan $110,000
----------------------------------------------------------------------------------------------
Highland Tech
49 Xxxxxx Xxxxxx 8/16/60 Xxxxx XX 00000 Support $60,000
----------------------------------------------------------------------------------------------
50 Xxxx Xxxxx 8/19/42 Xxx Xxxx XX 00000 Consultant $74,970
----------------------------------------------------------------------------------------------
51 Xxxx Xxxxxxxx A 8/17/56 Xxxxxxxxxxxx XX 00000 Consultant $61,374 Termed
----------------------------------------------------------------------------------------------
52 Xxxxx Xxxxxxxxx G 11/21/69 Xxxxxxx XX 00000 Consultant $57,555
----------------------------------------------------------------------------------------------
Last First Birth Salary
Name Name MI Date City State Zip Title (9/20/01)
----------------------------------------------------------------------------------------------
53 Xxxxxxx Xxxxxx J 2/5/52 Xxxxxxxx XX 00000 Consultant $65,265
----------------------------------------------------------------------------------------------
Regional
54 Xxxxx Xxxxxxxx L 12/29/55 Xxxxxxxx XX 00000 Manager $88,275
----------------------------------------------------------------------------------------------
55 Xxxxx Xxxxxxx J 8/17/66 Xxxxxx XX 00000 Consultant $57,240
----------------------------------------------------------------------------------------------
00 Xxxxxxx Xxxxxx X 0/00/00 Xxxxx XX 00000 Consultant $68,688 STD
----------------------------------------------------------------------------------------------
57 Xxxxxxxxx Xxxxx 3/16/48 Xxxxxxxxx XX 00000 LTD Termed
----------------------------------------------------------------------------------------------
Personal
58 Xxxx Xxxxxxx A 6/29/58 Xxxxxxx XX 00000 Consultant $65,985 leave
----------------------------------------------------------------------------------------------
59 Xxxx Xxxxx L 7/9/53 Xxxxxxx XX 00000 Consultant $70,119
----------------------------------------------------------------------------------------------
60 Xxxx Xxxxx M 12/12/57 Xxxxxx XX 00000 Consultant $67,000
----------------------------------------------------------------------------------------------
61 Xxxxxxx Xxxxx P 5/20/66 Xxxxxxx XX 00000 Consultant $54,000
----------------------------------------------------------------------------------------------
Account
62 Xxxxxxxxx Xxxxx X 00/0/00 Xxxxxx XX 00000 Executive $70,000
----------------------------------------------------------------------------------------------
63 Xxxxxxxx Xxxxx 8/16/60 Xxxxxxxxxxx XX 00000 Consultant $70,000
----------------------------------------------------------------------------------------------
Potomac
00 Xxxxxxxx Xxxxxxxxx X 0/00/00 Xxxxx XX 00000 Consultant Termed
----------------------------------------------------------------------------------------------
65 Xxxxx Xxxxxx D 6/9/54 Xxxxxxxxxx XX 00000 Consultant $65,499
----------------------------------------------------------------------------------------------
66 Xxxxxx Xxxxx A 8/5/67 Xxxxx Xxxxx XX 00000 Consultant $53,200
----------------------------------------------------------------------------------------------
00 Xxxxxxxx Xx X 0/0/00 Xxxxx Xxxx XX 00000 Consultant $66,150
----------------------------------------------------------------------------------------------
Xxxxxxxx
68 Xxxxxxxxxx Xxx M 10/7/68 Xxxx XX 00000 Consultant $61,000
----------------------------------------------------------------------------------------------
Regional
00 Xxxxxx Xxxx X 0/0/00 Xxxxxxxxxxx XX 00000 Manager $83,460
----------------------------------------------------------------------------------------------
70 Xxxxxxx XxXxxx 7/15/68 Xxxxxxx XX 00000 Consultant $67,095
----------------------------------------------------------------------------------------------
71 Xxxxxx Xxxxxxxx J 4/6/66 Xxxxx XX 00000 Consultant $52,820
----------------------------------------------------------------------------------------------
72 Xxxxxx Xxxxx P 12/12/37 Xxxxxxxxx XX 00000 Consultant $62,000
----------------------------------------------------------------------------------------------
Van
73 Xxxxxx Xxxxxx L 12/31/47 Xxxxxx XX 00000 Consultant $60,900
----------------------------------------------------------------------------------------------
74 Xxxxxxxx Xxxxxx M 7/13/72 Xxxxxxxxx XX 00000 Consultant $66,030
----------------------------------------------------------------------------------------------
Last First Birth Salary
Name Name MI Date City State Zip Title (9/20/01)
----------------------------------------------------------------------------------------------
Wietr-
75 xxxxxxxx Xxxx A 5/12/54 Xxxxxxx XX 00000 Consultant $57,300
----------------------------------------------------------------------------------------------
76 Xxxxxxx Xxxxxx L 8/30/48 Xxxxxxxxx XX 00000 Consultant $57,750
----------------------------------------------------------------------------------------------
77 Xxxx Xxxxx F 9/21/55 Xxxxxxxxx XX 00000 Consultant $53,500
----------------------------------------------------------------------------------------------
Regional
78 Xxxxx Xxxx L 9/13/62 Xxxxx Xxxx XX 00000 Manager $92,020
----------------------------------------------------------------------------------------------
10
Last First Birth Salary
Name Name MI Date City State Zip Title (9/20/01)
----------------------------------------------------------------------------------------------
79 Xxxxx Xxxx A 12/29/48 Xxxxxxxxx XX 00000 Consultant $71,663
----------------------------------------------------------------------------------------------
00 Xxxxxxxx Xxxxxxx X 0/00/00 Xxxxxxxx XX 00000 Consultant $66,000
----------------------------------------------------------------------------------------------
81 Xxxxxxxx Xxxxxxx 4/26/63 Xxxxxxxx XX 00000 Consultant $54,570 Re-hired
----------------------------------------------------------------------------------------------
Account
00 Xxxxxx Xxxx Xxxxxxx XX 00000 Executive $77,000
----------------------------------------------------------------------------------------------
Account
83 Xxxxxxxxx Xxxxxx Xxxxxx XX 00000 Executive $70,000
----------------------------------------------------------------------------------------------
Account
84 Xxxxxxx Xxxxx 11/10/56 Xxxxxxx XX 00000 Executive $65,000 Re-hired
----------------------------------------------------------------------------------------------
* Employees of UT on Short Term Disability ("STD") and Former Employees
of UT on Long Term Disability ("LTD"):
* Xxxxxxx Xxxx is on maternity STD leave.
* Xxxxxx Xxxxxxx is on STD leave to have a medical procedure.
* Xxxxx Xxxxxxxxx is a former employee of UT that was terminated
from UT in July 2001 after her FMLA leave expired. At such time,
Xx. Xxxxxxxxx had been denied LTD status by Ceridian's carrier.
Xx. Xxxxxxxxx'x job required that she travel. Because of her
disability she was unable to travel. Xx. Xxxxxxxxx has appealed
the denial of LTD status from Ceridian's LTD carrier, UNUM/
Provident. On September 24, 2001, Xx. Xxxxxxxxx informed UT that
UNUM/Provident reversed its denial of her LTD claim and has sent
her a check for back payments. The liability associated with the
actual LTD benefit payments of Xx. Xxxxxxxxx will be paid from
Ceridian's Long Term Disability Plan. UT will retain any
potential current or future liabilities associated with past
employment with UT.
2. UT currently has active consulting agreements with the Xxxxx
Xxxxx, Xxxxx Xxxxxx*, CB Team, Inc., Xxxxxx Xxxxxxxxx, Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxx and Xxxxx Xxxx. (*UT has sent out
contract for signature by Xx. Xxxxxx. A copy of proposed
consulting agreement with Xx. Xxxxxx has been provided.) In
addition, during 2001, UT had active contracts with the following
independent contracts: Xxxx Xxxxxx, Xxxxxx Xxxx, Xxxxx Xxxxxx,
Xxxxxxx Xxxxxxxx, Xxxx Xxxxx Xxxxx, Xxxxxxxx Xxx Xxxxx and Xxxxxx
Xxxx.
(xi) 1. See disclosure found in Section 3(g)(ii) above on certain real
property matters. Such disclosure is incorporated herein by
reference.
2. Office Lease Agreement, dated June 12, 1998 by and between EOP-
ONE Crosswoods, L.L.C. and UT for office space located at Xxx
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, XX.
3. See disclosure found in Section 3(m)(ii) regarding certain
contracts of UT. Such disclosure is incorporated herein by
reference.
(xii) 1. See disclosure found in Section 3(g)(ii)(3) above relating to the
Fairfax, VA apartment lease. Such disclosure is incorporated
herein by reference.
11
2. Storage Masters Rental Agreement Contract No. 040720 dated March
13, 2001 between UT and Storage Masters, L.L.C for storage space
near St. Louis.
3. Rackspace Managed Hosting Agreement dated July 23, 2001 between
Rackspace, Ltd. and UT.
Section 3(q)
Litigation
1. UT is currently involved in two situations where customers have failed
to pay UT amounts owed in a total amount of less than $100,000. One of
the customers has filed for bankruptcy under Chapter 7.
2. Xxxxxx X. Xxxxx - Wrongful termination claim. Currently dormant. Last
correspondence was October 21, 1999. No further communication.
Section 3(r)
Employees
1. UT transferred Xxxxxxx Xxxxxxxx to Ceridian effective as of September
22, 2001.
2. UT received a resignation from Xxxxxx Xxxxxxx on September 17, 2001
effective September 28, 2001.
Section 3(t)
Guaranties
On occasion, UT will include a client satisfaction guarantee in selected
marketing situations. The following is an example of the form of such a
provision:
Client Satisfaction Guarantee
In the event [Customer] is not reasonably satisfied with the final
deliverables from Usertech as defined and described in this Work
Authorization, and provided that [Customer] has fulfilled all of its
responsibilities and timelines as described in this Work Authorization,
Usertech will continue to work at no additional fee until [Customer] is
reasonably satisfied with the deliverables contained in this document.
12
Section 3(v)
Certain Business Relationships With UT
1. Ceridian provides certain services to UT for such things as payroll,
tax filing, benefit services, benefit plans, treasury, legal,
accounting and travel services. Ceridian charges UT an inter-company
amount each month for such services.
2. UT has, on several occasions and in the course of normal business,
contracted with various Ceridian subsidiaries to provide services on an
internal cost-transfer basis. Within the most recent 12-month period,
UT has performed three major projects for Ceridian.
a. CEES, a division of Ceridian, engaged UT to assist with the
training and documentation effort for Ceridian's internal Oracle
Financials implementation project. UT provided a project leader
for the training portion of the project, and several developers
and instructors.
b. UT worked with CEES on the FREEDOM project, an internal
initiative for a web-based payroll product. UT's role was to
assist with the documentation of the product. Ceridian terminated
the initiative internally effective April 1, 2001.
c. Prior to March 30, 2001, Arbitron (a division of Ceridian) also
engaged UT's services. On March 30, 2001, Arbitron Inc. was
spun-off from Ceridian. Arbitron remains a current client of UT.
3. Ceridian allows certain UT employees to use office space and certain
equipment in Ceridian's corporate headquarters building located at 0000
Xxxx Xxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX. Ceridian has verbally agreed
to allow such UT employees to remain in Ceridian's corporate
headquarters building until October 13, 2001.
4. See disclosure found in Section 3(m)(vi) above regarding the agreements
between UT and Ceridian and/or its affiliates. Such disclosure is
incorporated herein by reference.
5. Ceridian maintains a credit card program for use by its employees and
employees of its subsidiaries, including UT. Ceridian has extended the
credit card use for the 47 current UT employees that hold credit cards
in Ceridian's program until December 1, 2001.
6. Ceridian maintains rental car programs with Avis and National for use
by its employees and employees of its subdivisions, including UT.
Ceridian will permit UT employees to continue to use the Avis program.
The National program will expire at the Closing.
Section 3(bb)
Indebtedness
1. UT has no instruments relating to long or short-term indebtedness.
13
Section 3(dd)
Present Status
1. See disclosure found in Section 3(g) above. Such disclosure is
incorporated herein by reference.
14
SUBORDINATION AGREEMENT
September 28, 2001
To: Commerce Bank, N.A. ("Lender")
0000 Xxxxx 00 Xxxx
Xxxxxx Xxxx, XX 00000
To induce the Lender to make available and continue, a credit facility
to and for the joint and several benefit of Canterbury Consulting Group, Inc.
("Canterbury"), ATM/Canterbury Corp., DMI-North/Canterbury Corp.,
CALC/Canterbury Corp., DMI/Canterbury Corp., MSI/Canterbury Corp.,
USC/Canterbury Corp., Star Label Products, Inc., Canterbury Management Group,
Inc., and User Technology Services, Inc. (each individually, a "Borrower"
and collectively with Canterbury, as "Borrowers") pursuant to the terms of
that certain Loan and Security Agreement between Borrowers and Lender dated
May 4, 2001 (as same may have been or may hereafter be amended, supplemented
or replaced from time to time, collectively referred to as the "Loan
Agreement"), the undersigned hereby agrees as follows:
1. The payment of any and all Subordinated Debt is expressly
subordinated to the Senior Debt to the extent and in the manner set forth in
this Subordination Agreement. The term "Subordinated Debt" means all
indebtedness, liabilities, and obligations of Borrowers, or any of them, now
existing or hereafter arising, to the undersigned, including, but not limited
to: (i) the indebtedness of Borrowers payable to the order of the undersigned
pursuant to (i) that certain Promissory Note in the original principal amount
of $1,200,000 ("Promissory Note") (ii) the indebtedness of Borrowers payable
to the order of the undersigned pursuant to that certain Computer Promissory
Note in the original principal amount of $364,703.01 and (iii) any and all
other obligations owing by the Borrowers, or any of them, now or hereafter to
the undersigned. The term "Senior Debt" means any and all Obligations (as
defined in the Loan Agreement) of Borrowers to Lender under the Loan
Agreement plus any interest accruing thereon after the commencement of any
bankruptcy or insolvency proceeding whether or not such claim is allowed.
All capitalized terms not otherwise defined herein shall have the meaning
ascribed to such term in the Loan Agreement.
2. Until the Senior Debt is indefeasibly paid in full and any
commitment to make advances under the Loan Agreement has terminated, no
Borrower shall pay, and undersigned shall not accept, any payments of any
kind (including prepayments) associated with the Subordinated Debt; provided,
however, that so long as Borrowers have and maintain cash flow sufficient to
service Borrowers' Obligations to Lender (as determined by Lender in its
business judgment reasonably exercised) and no Event of Default or Default
under the Loan Agreement has occurred or would result from the making of any
such payment(s), Borrowers may pay and the undersigned may accept regularly
scheduled principal and interest payments on the Subordinated Debt. So long
as this Subordination Agreement remains in effect, no prepayment of any kind
(by voluntary prepayment, acceleration, set-off or otherwise) of any portion
of the Subordinated Debt may be made by any Borrower or received or accepted
by the undersigned at any time; provided, however, Borrowers may set-off the
obligations due and owing under the Promissory Note by (i) an amount
calculated pursuant to Section 5(c)(ii) of that certain Stock Purchase
Agreement by and between the undersigned and Canterbury dated the date hereof
(the "Purchase Agreement") and (ii) an amount equal to any Losses (as defined
in the Purchase Agreement).
3. Any payments on the Subordinated Debt received by the
undersigned, other than as permitted in paragraph 2 above, shall be held in
trust for Lender and the undersigned will forthwith turn over any such
payments in the form received, properly endorsed, to Lender to be applied to
the Senior Debt as determined by Lender.
4. Except for the security interest in the Computers (as defined in
the Purchase Agreement) granted in favor of undersigned, no Borrower shall
grant to the undersigned and the undersigned shall not take any lien on or
security interest in any Borrower's property, now owned or hereafter acquired
or created, without Lender's prior written consent.
5. The undersigned agrees that it will not make any assertion or
claim in any action, suit or proceeding of any nature whatsoever in any way
challenging the priority, validity or effectiveness of the liens and security
interests granted to Lender under and in connection with the Loan Agreement,
or any amendment, extension, replacement thereof or related agreement between
Lender and Borrowers.
6. The undersigned will not exercise any rights with respect to the
security interest in the Computers or commence any action or proceeding of
any kind against any Borrower to recover all or any part of the Subordinated
Debt not paid when due, and shall at no time join with any creditor, in
bringing any proceeding against any Borrower under any liquidation,
conservatorship, bankruptcy, reorganization, rearrangement, or other
insolvency law now or hereafter existing, unless and until the Senior Debt
shall be indefeasibly paid in full and any commitment to make advances under
the Loan Agreement has terminated. Subject to the foregoing, the undersigned
may accelerate the amount of the Subordinated Debt upon the occurrence of (i)
the acceleration of the Senior Debt; and (ii) the filing of a petition under
the Bankruptcy Code by any Borrower.
7. In the event of any liquidation, conservatorship, bankruptcy,
reorganization, rearrangement, or other insolvency proceeding of a Borrower,
the undersigned will at Lender's request file any claims, proofs of claim, or
other instruments of similar character necessary to enforce the obligations
of such Borrower in respect of the Subordinated Debt and will hold in trust
for Lender and pay over to Lender in the same form received, to be applied on
the Senior Debt as determined by Lender, any and all money, dividends or
other assets received in any such proceedings on account of the Subordinated
Debt, unless and until the Senior Debt shall be indefeasibly paid in full and
any commitment to make advances under the Loan Agreement has terminated,
including without limitation, interest owing to Lender after the commencement
of a bankruptcy proceeding at the rate specified in the Loan Agreement,
whether or not such interest is an allowable claim in such proceeding.
Lender may, as attorney-in-fact for the undersigned, take such action on
behalf of the undersigned and the undersigned hereby appoints Lender as
attorney-in-fact for the undersigned to demand, xxx for, collect, and receive
2
any and all such money, dividends or other assets and give acquittance
therefore and to file any claim, proof of claim or other instrument of
similar character and to take such other proceedings in Lender's name or in
the name of the undersigned, as Lender may deem necessary or advisable for
the enforcement of this Agreement. The undersigned will execute and deliver
to Lender such other and further powers of attorney or other instruments as
either reasonably may request in order to accomplish the foregoing.
8. Lender may at any time and from time to time, without the consent
of or notice to the undersigned, without incurring responsibility to the
undersigned and without impairing or releasing any of Lender's rights, or any
of the obligations of the undersigned hereunder:
(a) Change the amount, manner, place or terms of payment or
change or extend the time of payment of or renew or alter the Senior Debt
(including increasing the principal amount thereof), or any part thereof, or
amend, supplement or replace the Loan Agreement and/or any notes or surety or
guaranty agreements executed in connection therewith in any manner or enter
into or amend, supplement or replace in any manner any other agreement
relating to the Senior Debt;
(b) Sell, exchange, release or otherwise deal with all or any
part of any property at any time pledged or mortgaged by any party to secure
or securing the Senior Debt or any part thereof;
(c) Release anyone liable in any manner for the payment or
collection of the Senior Debt;
(d) Exercise or refrain from exercising any rights against
Borrowers, or any of them, or others (including the undersigned); and
(e) Apply sums paid by any party to the Senior Debt in any
order or manner as determined by Lender.
9. The undersigned will advise each future holder of all or any part
of the Subordinated Debt that the Subordinated Debt is subordinated to the
Senior Debt in the manner and to the extent provided herein. The undersigned
represents that no part of the Subordinated Debt or any instrument evidencing
the same has been transferred or assigned and the undersigned will not
transfer or assign, except to Lender, any part of the Subordinated Debt while
any Senior Debt remains outstanding, unless such transfer or assignment is
made expressly subject to this Agreement. Upon Lender's request, the
undersigned will in the case of any Subordinated Debt which is not evidenced
by any instrument cause the same to be evidenced by an appropriate instrument
or instruments, and place thereon and on any and all instruments evidencing
the Subordinated Debt a legend in such form as Lender may determine to the
effect that the indebtedness evidenced thereby is subordinated and subject to
the prior payment in full of all Senior Debt pursuant to this Subordination
Agreement, as well as deliver all such instruments to Lender.
3
10. This Subordination Agreement contains the entire agreement
between the parties regarding the subject matter hereof and may be amended,
supplemented or modified only by written instrument executed by Lender and
the undersigned. This Subordination Agreement, and the rights of Lender
hereunder shall terminate upon indefeasible payment in full of all Senior
Debt.
11. The undersigned represents and warrants that neither the
execution or delivery of this Subordination Agreement nor fulfillment of nor
compliance with the terms and provisions hereof will conflict with, or result
in a breach of the terms, conditions, or provisions of or constitute a
default under any agreement or instrument to which the undersigned or any of
the undersigned's assets is now subject.
12. Any notice of acceptance of this Subordination Agreement is
hereby waived.
13. This Subordination Agreement may be assigned by Lender, in whole
or in part in connection with any assignment or transfer of any portion of
the Senior Debt.
14. This Subordination Agreement shall be binding upon the
undersigned, and the undersigned's successors, representatives and assigns.
15. Except as provided in paragraph 2 above, each Borrower agrees
that it will not make any payment on any of the Subordinated Debt, or take
any other action in contravention of the provisions of this Subordination
Agreement.
16. In the event that you or Borrowers at any time terminate the
financing arrangements with respect to the Senior Debt, then the provisions
hereof shall inure to the benefit of any financial institution obtained by
Borrowers to provide replacement financing for Borrowers and, in connection
with such replacement financing, the undersigned shall, if requested by such
replacement lender, execute with such replacement lender a subordination
agreement substantially similar to this Subordination Agreement.
17. This Subordination Agreement shall in all respects be
interpreted, construed and governed by the substantive laws of the State of
New Jersey. The undersigned, Borrowers and Lender, each (i) submits to the
jurisdiction of the Superior Court of the State of New Jersey, or the United
States District Court for the State of New Jersey for the purposes of
resolving any controversy relating thereto and (ii) WAIVES THE RIGHT TO A
JURY TRIAL FOR THE PURPOSE OF RESOLVING ANY CONTROVERSY HEREUNDER OR
ENFORCING OR DEFENDING ANY RIGHTS OR CLAIM HEREUNDER OR IN CONNECTION
HEREWITH, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE.
[SIGNATURES ON FOLLOWING PAGE]
4
ATTEST: CERIDIAN CORPORATION
By: /s/Xxxxxxx X. XxXxxxxx By: /s/Xxxxxx X. Xxxxxxxx
--------------------------------- ----------------------------
Name: Xxxxxxx X. XxXxxxxx Name: Xxxxxx X. Xxxxxxxx
--------------------------------- ----------------------------
Vice President, Associate General Senior Vice President -
Title: Counsel and Deputy Secretary Title: Technology
--------------------------------- ----------------------------
LENDER:
COMMERCE BANK, N.A.
By:/s/Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx, Assistant Vice
President
AGREED TO AND ACKNOWLEDGED,
INTENDING TO BE LEGALLY BOUND:
BORROWERS:
CANTERBURY CONSULTING GROUP, INC.
ATM/CANTERBURY CORP.
DMI-NORTH/CANTERBURY CORP.
CALC/CANTERBURY CORP.
DMI/CANTERBURY CORP.
MSI/CANTERBURY CORP.
USC/CANTERBURY CORP.
STAR LABEL PRODUCTS, INC.
CANTERBURY MANAGEMENT GROUP, INC.
USER TECHNOLOGY SERVICES, INC.
By: /s/Xxxxx X. XxXxxxxx
----------------------------------------
Name: Xxxxx XxXxxxxx
----------------------------------------
President - Canterbury Consulting Group
Title: Vice President - all others
----------------------------------------
For each of the foregoing Borrowers
EXHIBIT F
BUYER'S DISCLOSURE EXHIBIT - SECTION 4
None.
EXHIBIT G
Intentionally Left Blank
EXHIBIT H
DETAILED ACCOUNTS RECEIVABLE AS OF SEPTEMBER 1, 2001
EXHIBIT I
PROMISSORY NOTE
PROMISSORY NOTE
---------------
$1,200,000.00 Medford, NJ
September 28, 2001
FOR VALUE RECEIVED, Canterbury Consulting Group, Inc., a Pennsylvania
corporation whose principal address is 0000 Xxxxxxx Xxxxx, Xxxxx 00 and
Hartford Road, Medford, NJ 08055 (hereinafter referred to as the "Payor"),
agrees to pay to the order of Ceridian Corporation, a Delaware corporation
whose principal address is 0000 Xxxx Xxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX
00000 and its successors-in-interest or assigns (hereinafter referred to as
the "Payee"), in accordance with the terms of this Promissory Note
("Promissory Note"), the principal sum of One Million Two Hundred Thousand
($1,200,000.00) Dollars pursuant to the provisions of Article I of this
Promissory Note, with interest on the aforesaid amount as calculated pursuant
to the provisions of Section 1.1 of Article I of this Promissory Note subject
to the acceleration provisions set forth in this Promissory Note.
This Promissory Note is entered into pursuant to the Stock Purchase
Agreement, dated the 28th day of September, 2001, by and among the Payor and
the Payee (the "Stock Purchase Agreement").
ARTICLE I
---------
METHOD OF PAYMENT
-----------------
1.1 Payment of Interest
-------------------
Interest on the unpaid principal balance shall be calculated from the
date of this Promissory Note to and including the date of repayment at an
interest rate equal to seven (7%) percent per annum and shall be due and
payable yearly, on the 28th day of September 2002, 2003 and 2004.
1.2 Payment of Principal
--------------------
Payment of the principal sum of Four Hundred Thousand ($400,000.00)
Dollars, shall be due and payable yearly, on the 28th day of September 2002,
2003 and 2004.
1.3 Offsets. All payments of principal and interest pursuant to this
--------
Promissory Note shall be subject to offsets or deductions at the option of
the Buyer as set forth in the Stock Purchase Agreement.
1.4 Place and Manner of Repayment
-----------------------------
(A) Repayment of this Promissory Note by the Payor shall be made by
wire transfer to the Payee pursuant to Payee's wire transfer instructions as
shall be designated in writing by the Payee to the Payor.
(B) All Payments shall be made in lawful money of the United States of
America and in immediately available funds. If any payment of principal or
interest becomes due and payable on a Saturday, Sunday or such other day on
which banks are not required to be open for business in the State of New
Jersey, such payment shall be made on the next such succeeding day on which
banks are required to be open for business in the State of New Jersey , and
such extension of time shall in such case be included in computing interest
in connection with such payment.
(C) All payments on the Promissory Note shall be applied to the
payment of accrued interest and the balance shall be applied to principal
due.
ARTICLE II
----------
THE PAYOR'S REPRESENTATIONS
---------------------------
The Payor represents and warrants to the Payee that:
2.1 Company Status. The Payor is a corporation duly organized,
---------------
validly existing and in good standing under the laws of Pennsylvania with all
requisite power and authority to carry on its business as presently conducted
in all jurisdictions where presently conducted, to execute and deliver this
Promissory Note and to perform its obligations pursuant to this Promissory
Note (the "Obligations").
2.1 Authority and Due Authorization. The Payor has full authority,
--------------------------------
right, power and legal capacity to enter into this Promissory Note and to
consummate the transactions which are provided for herein. The execution of
this Promissory Note by the Payor, and its delivery to the Payee and the
consummation by the Payor of the transactions which are contemplated herein
have been duly approved and authorized by all necessary action by the Payor's
Board of Directors. No further action shall be necessary on the part of the
Payor for the performance and consummation by the Payor of the transactions
which are contemplated by this Promissory Note.
2.2 Compliance with the Law and other Instruments. Except as
----------------------------------------------
otherwise provided in this Promissory Note, the business and operations of
the Payor have been and are being conducted in accordance with all applicable
laws, rules and regulations of all authorities which affect the Payor or its
properties, assets, businesses or prospects. The execution, delivery and
performance of this Promissory Note does not violate any law or any agreement
or undertaking to which the Payor is a party or by which the Payor may be
bound and shall not result in any breach of, or constitute a default under,
or result in the imposition of any lien or encumbrance or cause an
acceleration under any arrangement, agreement or other instrument to which
the Payor is a party. The Payor has performed in all respects all of its
obligations which are, as of the date of this Promissory Note, required to be
performed by it pursuant to the terms of any agreement, contract or
commitment.
2.3 Litigation. There are no material legal, administrative,
-----------
arbitration, or other proceeding or governmental investigation affecting the
Payor or its assets or with respect to any matter arising out of the conduct
of the business of the Payor, pending or threatened, by or against the Payor
or any officer or director of the Payor in connection with the Payor's
affairs, whether or not covered by insurance. The Payor is not presently
engaged in or contemplating any legal action to recover claims for monies
which are due to it or damages which were sustained by it that would
adversely affect the conduct of its business. Neither the Payor, nor its
officers, directors or employees are subject to any order, writ, injunction,
or decree of any court, department, agency or instrumentality, affecting the
Payor.
2.4 Solvency. The Payor is solvent, able to pay its debts as they
---------
mature, has capital sufficient to carry on its business and all businesses in
which it is about to engage and the fair saleable value of its assets
(calculated on a going concern basis) is in excess of the amount of its
liabilities.
2.5 Complete Disclosure. No representation or warranty of the Payor
--------------------
which is contained in this Promissory Note, or in a writing furnished or to
be furnished pursuant to this Promissory Note, contains or shall contain any
untrue statement of material fact, omits or shall omit to state any material
fact which is required to make the statements which are contained herein or
therein, in light of the circumstances under which they were made, not
misleading. There is no fact, known to the Payor, relating to the business,
affairs, operations, conditions (financial or otherwise) or prospects of the
Payor which would materially adversely affect same which has not been
disclosed to the Payee in this Promissory Note.
ARTICLE III
-----------
EVENTS OF DEFAULT
-----------------
3.1 Events of Default
-----------------
The term "Event of Default" as used herein shall mean the occurrence of
any one or more of the following events:
(A) The default in the due observance or performance of any material
covenant, condition, agreement or obligation on the part of the Payor to be
performed pursuant to the terms hereof of the Stock Purchase Agreement;
(B) If The Payor fails to pay when due any payment due hereunder and
such failure continues for ten (10) days after the Payee notifies the Payor
thereof in writing pursuant to Section 6.3 of this Promissory Note;
(C) The filing by the Payor of a petition in bankruptcy;
(D) The making of an assignment by the Payor for the benefit of its
creditors;
(E) Consent by the Payor to the appointment of, or possession by, a
custodian for itself or for all or substantially all of its property;
(F) The filing of a petition in bankruptcy against the Payor with the
consent of the Payor;
(G) The filing of a petition in bankruptcy against the Payor without
the consent of the Payor, and the failure to have such petition dismissed
within one hundred twenty (120) days from the date upon which such petition
is filed;
(H) The Payor is adjudicated insolvent; or
(I) The entry by a court of competent jurisdiction of an order,
judgment or decree appointing a receiver, trustee or custodian for the Payor
or of all or substantially all of the property or assets of the Payor.
ARTICLE IV
----------
REMEDIES UPON DEFAULT
---------------------
4.1 Acceleration of Payment
-----------------------
Upon the occurrence of an Event of Default (as defined in Article III
of this Promissory Note), and any time thereafter while such Event of Default
is continuing, the entire unpaid principal balance on this Promissory Note,
and all accrued and unpaid interest which is due pursuant to this Promissory
Note shall, at the Payee's option, be accelerated and become and be
immediately due and payable without presentment, demand, protest or further
notice of any kind, all of which are expressly waived by the Payor.
4.2 Non-Exclusive Remedy
--------------------
Any remedies which are provided herein are cumulative and are not
exclusive of any remedies which are provided by law.
4.3 Exercise of Remedy Upon Default
-------------------------------
No failure on the part of the Payee to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right hereunder preclude any other or
further exercise thereof or the exercise of any other right.
4.4 The Payor's Waiver of Defenses
------------------------------
The Payor hereby waives any defense of presentment, notice of dishonor,
protest, set-offs, counterclaims, or other objections to the payment hereof
and any other notice or formality with respect to this Promissory Note. The
Payor waives its right to a jury trial.
4.5 Full Recourse
-------------
Anything in this Promissory Note to the contrary notwithstanding, the
Payor hereunder shall be liable on the Promissory Note for the full amount of
the interest and principal due under this Promissory Note.
4.6 Reimbursement of Payee
----------------------
The Payor agrees to reimburse the Payee on demand for all reasonable
costs, expenses and charges (including, without limitation, fees and charges
of legal counsel for the Payee and costs allocated by its internal legal
department) in connection with the performance or enforcement of this
Promissory Note.
4.7 Validity of Provisions
----------------------
The provisions of this Promissory Note are intended to be severable.
Any provision of this Promissory Note which may be unenforceable under any
law shall not affect the validity of any other provision of this Promissory
Note. If, as a result of any circumstances whatsoever, fulfillment of any
provision of this Promissory Note, the Stock Purchase Agreement or other
instrument evidencing or securing the indebtedness evidenced hereby, at the
time performance of such provision shall be due, shall involve transcending
the limit of validity presently prescribed by any applicable usury statute or
any other applicable law, with respect to obligations of like character and
amount, then ipso facto, the obligation to be fulfilled shall be reduced to
the limit of such validity, so that in no event shall any exaction be
possible under this Promissory Note or under any other instrument evidencing
or securing the indebtedness evidenced hereby, that is in excess of the
current limit of such validity, but such obligation shall be fulfilled to the
limit of such validity.
ARTICLE V
---------
SUBORDINATION
-------------
5.1 Subordination. This Promissory Note shall be a general
--------------
obligation of Payor and shall be subordinated to all of Payor's current and
future bank borrowings.
ARTICLE VI
----------
MISCELLANEOUS
-------------
6.1 Headings. Headings contained in this Promissory Note are for
---------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Promissory Note.
6.2 Enforceability. If any provision which is contained in this
---------------
Promissory Note, should, for any reason, be held to be invalid or
unenforceable in any respect under the laws of any State of the United
States, such invalidity or unenforceabilty shall not affect any other
provision of this Promissory Note and in this Promissory Note shall be
construed as if such invalid or unenforceable provision had not been
contained herein.
6.3 Notices. Any notice or other communication required or permitted
--------
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested, (ii) overnight delivery with confirmation
of delivery or (iii) facsimile transmission with an original mailed by first
class mail, postage prepaid, addressed as follows:
If to the Payee: Copy to:
Xxxxxx X. Xxxxxxxx Ceridian Corporation
Senior Vice President Attn: Office of the General Counsel
Ceridian Corporation 0000 Xxxx Xxx Xxxxxxxx Xxxx
0000 Xxxx Xxx Xxxxxxxx Xxxx Xxxxxxxxxxx, XX 00000-0000
Xxxxxxxxxxx, XX 00000-0000 (000) 000-0000
(000) 000-0000 (000) 000-0000 (fax)
(000) 000-0000 (fax)
If to the Payor: Copy to:
Xxxxx X. XxXxxxxx, President Xxxxxxx X. Xxxx, Esquire
Canterbury Consulting Group, Inc. Levy & Levy, P.A.
1600 Medford Xxxxx Xxxxx 0000, Xxxxx 000
Xxxxx 00 & Hartford Road Main Street
Medford, NJ 08055 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
(000) 000-0000 (fax) (000) 000-0000 (fax)
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and the other methods of sending notice set forth in this
Section 6.3 of this Article VI of this Promissory Note are not otherwise
available, notice shall be hand delivered to the aforesaid addresses. Each
notice or communication shall be deemed to have been given as of the date so
mailed or delivered, as the case may be; provided, however, that any notice
sent by facsimile shall be deemed to have been given as of the date sent by
facsimile if a copy of such notice is also mailed by first class mail on the
date sent by facsimile; if the date of mailing is not the same as the date of
sending by facsimile, then the date of mailing by first class mail shall be
deemed to be the date upon which notice is given.
6.4 Governing Law. This Promissory Note shall, in accordance with
--------------
the laws of New Jersey, in all respects be construed, governed, applied and
enforced in accordance with the laws of the State of New Jersey applicable to
contracts made and to be performed therein, without giving effect to the
principles of conflicts of law that would call for the application of the
laws of any other jurisdiction. Furthermore, the Payor and Payee hereby
agree that all claims, disputes and other matters in question hereunder
arising out of or relating to this Promissory Note or the transactions
contemplated herein shall be decided by binding arbitration in accordance
with the rules of the American Arbitration Association unless the parties
mutually agree otherwise. Such arbitration shall take place in Philadelphia,
Pennsylvania. The award rendered by the arbitrator shall be final, and
judgment may be entered upon in accordance with applicable law in any court
having jurisdiction thereof.
6.5 Entire Agreement. This Promissory Note and the Stock Purchase
-----------------
Agreement and the other documents delivered in connection therewith or
herewith constitute the entire agreement between the parties and supersedes
all prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof and thereof, and are not
intended to confer upon any person other than the parties hereto any rights
or remedies hereunder. The Payee agrees that, except for the representations
and warranties contained in this Promissory Note, the Payor makes no other
representations or warranties, and disclaims any other representations and
warranties made by the Payor or any of its officers, directors, employees,
agents, financial and legal advisors or other representatives, with respect
to the execution and delivery of this Promissory Note or the transactions
contemplated hereby, notwithstanding the delivery or disclosure to the Payee
or the Payee's representatives of any documentation or other information with
respect to any one or more of the foregoing.
6.6 Modification. This Promissory Note may not be changed, modified,
-------------
extended, terminated or discharged orally, but only by an agreement in
writing, which is signed by the Payor and the Payee of this Promissory Note.
6.7 Further Assurances. The Payor agrees to execute any and all such
-------------------
other further instruments and documents, and to take any and all such further
actions which are reasonably required to effectuate this Promissory Note and
the intents and purposes hereof.
6.8 Binding Agreement. This Promissory Note shall be binding upon
------------------
and inure to the benefit of the Payee and its successors and assigns.
6.9 Non-Waiver. Except as otherwise expressly provided herein, no
-----------
waiver of any covenant, condition, or provision of this Promissory Note shall
be deemed to have been made unless expressly in writing and signed by the
Payee; and (i) the failure of the Payee to insist in any one or more cases
upon the performance of any of the provisions, covenants or conditions of
this Promissory Note or to exercise any option herein contained shall not be
construed as a waiver or relinquishment for the future of any such
provisions, covenants or conditions, (ii) the acceptance of performance of
anything required by this Promissory Note to be performed with knowledge of
the breach or failure of a covenant, condition or provision hereof shall not
be deemed a waiver of such breach or failure, and (iii) no waiver by the
Payee of one breach by the Payor shall be construed as a waiver of any other
or subsequent breach.
6.10 Construction. The Payor hereby acknowledges and agrees that
-------------
it has been advised by counsel during the course of negotiations and had
significant input in the drafting of this Promissory Note and shall not,
therefore, be construed more strictly against any party responsible for its
drafting regardless of any presumption or rule requiring construction against
the party whose attorney drafted this Promissory Note.
IN WITNESS WHEREOF, the Payor has executed this Promissory Note as of
the 28th day of September 2001.
Canterbury Consulting Group, Inc.
By: /s/Xxxxx X. XxXxxxxx
---------------------------------
Xxxxx X. XxXxxxxx, President
ACKNOWLEDGEMENT
STATE OF NEW JERSEY )
)ss.
COUNTY OF BURLINGTON)
The foregoing instrument was acknowledged before me this 29th day of September,
2001, by Xxxxx X. XxXxxxxx, President of Canterbury Consulting Group, Inc.
Notary Public
/s/Xxxxx X. Xxxx
XXXXX X. XXXX
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES JULY 30, 2003
EXHIBIT J
LIST OF COMPUTERS
EXHIBIT K
COMPUTER PROMISSORY NOTE
PROMISSORY NOTE
---------------
(Computer Equipment)
$364,703.01 Medford, NJ
September 28, 2001
FOR VALUE RECEIVED, User Technology Services Inc., a New York
corporation, wholly owned subsidiary of Canterbury Consulting Group, Inc.,
and whose address is 0 Xxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxx 00000
(hereinafter referred to as the "Payor"), agrees to pay to the order of
Ceridian Corporation, a Delaware corporation whose address is 0000 Xxxx Xxx
Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000 and its successors-in-interest or
assigns (hereinafter referred to as the "Payee"), in accordance with the
terms of this Promissory Note ("Promissory Note"), the principal sum of Three
Hundred Sixty Four Thousand Seven Hundred Three and 01/100 ($364,703.01)
Dollars pursuant to the provisions of Article I of this Promissory Note, with
interest on the aforesaid amount as calculated pursuant to the provisions of
Section 1.1 of Article I of this Promissory Note subject to the acceleration
provisions set forth in this Promissory Note.
This Promissory Note is entered into pursuant to the Stock Purchase
Agreement, dated the 28th day of September, 2001, by and between Canterbury
Consulting Group, Inc. and the Payee (the "Stock Purchase Agreement"). This
Promissory Note is entitled to the benefits and security provided by that
certain Security Agreement in the form of Exhibit "A" which is attached
hereto and made a part hereof, executed simultaneously with this Promissory
Note by and between the Payee and the Payor (the "Security Agreement").
1
ARTICLE I
---------
METHOD OF PAYMENT
-----------------
1.1 Payment of Principal and Interest
---------------------------------
Interest on the unpaid principal balance shall be calculated from the
date of this Promissory Note to and including the date of repayment at an
interest rate equal to Three and 75/100 percent (3.75%) per annum. Payor
shall repay this Promissory Note in thirty (30) consecutive monthly payments
of principal and interest in an amount equal to Twelve Thousand Three Hundred
Sixty Two and 02/100 ($12,362.02) Dollars beginning on October 28, 2001 and
continuing on the 28th of each month thereafter followed by a final payments
of all outstanding principal and interest due and payable on April 28, 2004.
1.2 Place and Manner of Repayment
-----------------------------
(A) Repayment of this Promissory Note by the Payor shall be made
by wire transfer to the Payee pursuant to the Payee's wire transfer
instructions as shall be designated in writing by the Payee to the Payor.
(B) All Payments shall be made in lawful money of the United
States of America and in immediately available funds. If any payment of
principal or interest becomes due and payable on a Saturday, Sunday or such
other day on which banks are not required to be open for business in the
State of New Jersey, such payment shall be made on the next such succeeding
day on which banks are required to be open for business in the State of New
Jersey, and such extension of time shall in such case be included in
computing interest in connection with such payment.
(C) All payments on the Promissory Note shall be applied to the
payout of accrued interest and the balance shall be applied to principal due.
2
ARTICLE II
----------
THE PAYOR'S REPRESENTATIONS
---------------------------
The Payor represents and warrants to the Payee that:
2.1 Company Status. The Payor is a corporation duly organized,
---------------
validly existing and in good standing under the laws of New York with all
requisite power and authority to carry on its business as presently conducted
in all jurisdictions where presently conducted, to execute and deliver this
Promissory Note and the Security Agreement and to perform its obligations
pursuant to this Promissory Note and the Security Agreement.
2.2 Authority and Due Authorization. The Payor has full authority,
--------------------------------
right, power and legal capacity to enter into this Promissory Note and the
Security Agreement and to consummate the transactions which are provided for
herein. The execution of this Promissory Note and the Security Agreement by
the Payor, and their delivery to the Payee and the consummation by the Payor
of the transactions which are contemplated herein and therein have been duly
approved and authorized by all necessary action by the Payor's Board of
Directors. No further action shall be necessary on the part of the Payor for
the performance and consummation by the Payor of the transactions which are
contemplated by this Promissory Note and the Security Agreement.
2.3 Compliance with the Law and other Instruments. Except as
----------------------------------------------
otherwise provided in this Promissory Note or the Security Agreement, the
business and operations of the Payor have been and are being conducted in
accordance with all applicable laws, rules and regulations of all authorities
which affect the Payor or its properties, assets, businesses or prospects.
The execution, delivery and performance of this Promissory Note or the
Security Agreement does not violate any law or any agreement or undertaking
to which the Payor is a party or by which the Payor may be bound and shall
not result in any breach of, or constitute a default under, or result in the
3
imposition of any lien or encumbrance or cause an acceleration under any
arrangement, agreement or other instrument to which the Payor is a party.
The Payor has performed in all respects all of its obligations which are, as
of the date of this Promissory Note, required to be performed by it pursuant
to the terms of any agreement, contract or commitment.
2.4 Litigation. There are no material legal, administrative,
-----------
arbitration, or other proceeding or governmental investigation affecting the
Payor or its assets or with respect to any matter arising out of the conduct
of the business of the Payor, pending or threatened, by or against the Payor
or any officer or director of the Payor in connection with the Payor's
affairs, whether or not covered by insurance. The Payor is not presently
engaged in or contemplating any legal action to recover claims for monies
which are due to it or damages which were sustained by it that would
adversely affect the conduct of its business. Neither the Payor, nor its
officers, directors or employees are subject to any order, writ, injunction,
or decree of any court, department, agency or instrumentality, affecting the
Payor.
2.5 Solvency. The Payor is solvent, able to pay its debts as they
---------
mature, has capital sufficient to carry on its business and all businesses in
which it is about to engage and the fair saleable value of its assets
(calculated on a going concern basis) is in excess of the amount of its
liabilities.
2.6 Complete Disclosure. No representation or warranty of the Payor
--------------------
which is contained in this Promissory Note or the Security Agreement, or in a
writing furnished or to be furnished pursuant to this Promissory Note or the
Security Agreement, contains or shall contain any untrue statement of
material fact, omits or shall omit to state any material fact which is
required to make the statements which are contained herein or therein, in
4
light of the circumstances under which they were made, not misleading. There
is no fact, known to the Payor, relating to the business, affairs,
operations, conditions (financial or otherwise) or prospects of the Payor
which would materially adversely affect same which has not been disclosed to
the Payee in this Promissory Note.
ARTICLE III
-----------
EVENTS OF DEFAULT
-----------------
3.1 Events of Default
-----------------
The term "Event of Default" as used herein shall mean the occurrence of
any one or more of the following events:
(A) The default in the due observance or performance of any
material covenant, condition, agreement or obligation on the part of the
Payor to be performed pursuant to the terms hereof or the Security Agreement;
(B) If The Payor fails to pay when due any payment due
hereunder and such failure continues for ten (10) days after the Payee
notifies the Payor thereof in writing pursuant to Section 5.3 of this
Promissory Note;
(C) The filing by the Payor of a petition in bankruptcy;
(D) The making of an assignment by the Payor for the benefit of
its creditors;
(E) Consent by the Payor to the appointment of, or possession
by, a custodian for itself or for all or substantially all of its property;
(F) The filing of a petition in bankruptcy against the Payor with
the consent of the Payor;
(G) The filing of a petition in bankruptcy against the Payor
without the consent of the Payor, and the failure to have such petition
dismissed within one hundred twenty (120) days from the date upon which such
petition is filed;
5
(H) The Payor is adjudicated insolvent; or
(I) The entry by a court of competent jurisdiction of an order,
judgment or decree appointing a receiver, trustee or custodian for the Payor
or of all or substantially all of the property or assets of the Payor.
ARTICLE IV
----------
REMEDIES UPON DEFAULT
---------------------
4.1 Remedies
--------
Upon the occurrence of an Event of Default (as defined in Article III
of this Promissory Note), and any time thereafter while such Event of Default
is continuing, the entire unpaid principal balance on this Promissory Note,
and all accrued and unpaid interest which is due pursuant to this Promissory
Note shall, at the Payee's option, be accelerated and become and be
immediately due and payable without presentment, demand, protest or further
notice of any kind, all of which are expressly waived by the Payor.
4.2 Non-Exclusive Remedy
--------------------
Any remedies which are provided herein are cumulative and are not
exclusive of any remedies which are provided by law or in the Security
Agreement.
4.3 Exercise of Remedy Upon Default
-------------------------------
No failure on the part of the Payee to exercise, and no delay in
exercising, any right hereunder or in the Security Agreement shall operate as
a waiver thereof, nor shall any single or partial exercise of any right
hereunder or in the Security Agreement preclude any other or further exercise
thereof or the exercise of any other right.
4.4 The Payor's Waiver of Defenses
------------------------------
The Payor hereby waives any defense of presentment, notice of dishonor,
protest, set-offs, counterclaims, or other objections to the payment hereof
and any other notice or formality with respect to this Promissory Note. The
6
Payor waives its right to a jury trial.
4.5 Full Recourse
-------------
Anything in this Promissory Note to the contrary notwithstanding, the
Payor hereunder shall be liable on the Promissory Note for the full amount of
the interest and principal due under this Promissory Note.
4.6 Reimbursement of Payee
----------------------
The Payor agrees to reimburse the Payee on demand for all reasonable
costs, expenses and charges (including, without limitation, fees and charges
of legal counsel for the Payee and costs allocated by its internal legal
department) in connection with the performance or enforcement of this
Promissory Note.
4.7 Validity of Provisions
----------------------
The provisions of this Promissory Note are intended to be severable.
Any provision of this Promissory Note which may be unenforceable under any
law shall not affect the validity of any other provision of this Promissory
Note. If, as a result of any circumstances whatsoever, fulfillment of any
provision of this Promissory Note, the Security Agreement, or other
instrument evidencing or securing the indebtedness evidenced hereby, at the
time performance of such provision shall be due, shall involve transcending
the limit of validity presently prescribed by any applicable usury statute or
any other applicable law, with respect to obligations of like character and
amount, then ipso facto, the obligation to be fulfilled shall be reduced to
the limit of such validity, so that in no event shall any exaction be
possible under this Promissory Note, the Security Agreement, or under any
other instrument evidencing or securing the indebtedness evidenced hereby,
that is in excess of the current limit of such validity, but such obligation
shall be fulfilled to the limit of such validity.
7
ARTICLE V
---------
MISCELLANEOUS
-------------
5.1 Headings. Headings contained in this Promissory Note are for
---------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Promissory Note.
5.2 Enforceability. If any provision which is contained in this
---------------
Promissory Note should, for any reason, be held to be invalid or
unenforceable in any respect under the laws of any State of the United
States, such invalidity or unenforceabilty shall not affect any other
provision of this Promissory Note and in this Promissory Note shall be
construed as if such invalid or unenforceable provision had not been
contained herein.
5.3 Notices. Any notice or other communication required or permitted
--------
hereunder must be in writing and sent by either (i) certified mail, postage
prepaid, return receipt requested, (ii) overnight delivery with confirmation
of delivery or (iii) facsimile transmission with an original mailed by first
class mail, postage prepaid, addressed as follows:
If to the Payee: Copy to:
Xxxxxx X. Xxxxxxxx Ceridian Corporation
Senior Vice President Attn: Office of the General Counsel
Ceridian Corporation 0000 Xxxx Xxx Xxxxxxxx Xxxx
0000 Xxxx Xxx Xxxxxxxx Xxxx Xxxxxxxxxxx, XX 00000-0000
Xxxxxxxxxxx, XX 00000-0000 (000) 000-0000
(000) 000-0000 (000) 000-0000 (fax)
(000) 000-0000 (fax)
If to the Payor: Copy to:
Xxxxx X. XxXxxxxx, President Xxxxxxx X. Xxxx, Esquire
Canterbury Consulting Group, Inc. Levy & Levy, P.A.
1600 Medford Xxxxx Xxxxx 0000, Xxxxx 000
Xxxxx 00 & Hartford Road Main Street
Medford, NJ 08055 Xxxxxxxx, XX 00000
(000) 000-0000 (000) 000-0000
(000) 000-0000 (fax) (000) 000-0000 (fax)
8
or in each case to such other address and facsimile number as shall have last
been furnished by like notice. If mailing is impossible due to an absence of
postal service, and the other methods of sending notice set forth in this
Section 5.3 of this Article V of this Promissory Note are not otherwise
available, notice shall be hand delivered to the aforesaid addresses. Each
notice or communication shall be deemed to have been given as of the date so
mailed or delivered, as the case may be; provided, however, that any notice
sent by facsimile shall be deemed to have been given as of the date sent by
facsimile if a copy of such notice is also mailed by first class mail on the
date sent by facsimile; if the date of mailing is not the same as the date of
sending by facsimile, then the date of mailing by first class mail shall be
deemed to be the date upon which notice is given.
5.4 Governing Law. This Promissory Note shall, in accordance with
--------------
the laws of New Jersey, in all respects be construed, governed, applied and
enforced in accordance with the laws of the State of New Jersey applicable to
contracts made and to be performed therein, without giving effect to the
principles of conflicts of law that would call for the application of the
laws of any other jurisdiction. Furthermore, the Payor and Payee hereby
agree that all claims, disputes and other matters in question hereunder
arising out of or relating to this Promissory Note or the transactions
contemplated herein shall be decided by binding arbitration in accordance
with the rules of the American Arbitration Association unless the parties
mutually agree otherwise. Such arbitration shall take place in Philadelphia,
Pennsylvania. The award rendered by the arbitrator shall be final, and
judgment may be entered upon in accordance with applicable law in any court
having jurisdiction thereof.
5.5 Entire Agreement. This Promissory Note, the Security Agreement
-----------------
and the other documents delivered in connection therewith or herewith
9
constitute the entire agreement between the parties and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and thereof, and are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder. Payee agrees that, except for the representations and warranties
made by Payor contained in this Promissory Note and the Security Agreement,
the Payor makes no other representations or warranties, and disclaims any
other representations and warranties made by Payor or any of its officers,
directors, employees, agents, financial and legal advisors or other
representatives, with respect to the execution and delivery of this
Promissory Note, the Security Agreement or the transactions contemplated
hereby, notwithstanding the delivery or disclosure to the Payee or the
Payee's representatives of any documentation or other information with
respect to any one or more of the foregoing.
5.6 Modification. This Promissory Note may not be changed, modified,
-------------
extended, terminated or discharged orally, but only by an agreement in
writing, which is signed by the Payor and the Payee of this Promissory Note.
5.7 Further Assurances. The Payor agrees to execute any and all
-------------------
such other further instruments and documents, and to take any and all such
further actions which are reasonably required to effectuate this Promissory
Note and the intents and purposes hereof.
5.8 Binding Agreement. This Promissory Note shall be binding upon
------------------
and inure to the benefit of the Payee and its successors and assigns.
5.9 Non-Waiver. Except as otherwise expressly provided herein, no
-----------
waiver of any covenant, condition, or provision of this Promissory Note shall
be deemed to have been made unless expressly in writing and signed by the
Payee; and (i) the failure of the Payee to insist in any one or more cases
upon the performance of any of the provisions, covenants or conditions of
10
this Promissory Note or to exercise any option herein contained shall not be
construed as a waiver or relinquishment for the future of any such
provisions, covenants or conditions, (ii) the acceptance of performance of
anything required by this Promissory Note to be performed with knowledge of
the breach or failure of a covenant, condition or provision hereof shall not
be deemed a waiver of such breach or failure, and (iii) no waiver by the
Payee of one breach by the Payor shall be construed as a waiver of any other
or subsequent breach.
5.10 Construction. The Payor hereby acknowledges and agrees that
-------------
it has been advised by counsel during the course of negotiations and had
significant input in the drafting of this Promissory Note and shall not,
therefore, be construed more strictly against any party responsible for its
drafting regardless of any presumption or rule requiring construction against
the party whose attorney drafted this Promissory Note.
IN WITNESS WHEREOF, the Payor has executed this Promissory Note as of
the 28th day September 2001.
User Technology Services Inc.
By: /s/Xxxxx X. XxXxxxxx
-----------------------------------
Xxxxx X. XxXxxxxx, Vice President
ACKNOWLEDGEMENT
STATE OF NEW JERSEY )
)ss.
COUNTY OF BURLINGTON)
The foregoing instrument was acknowledged before me this 29th day of September,
2001, by Xxxxx X. XxXxxxxx, President of Canterbury Consulting Group, Inc.
Notary Public
/s/Xxxxx X. Xxxx
XXXXX X. XXXX
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES JULY 30, 2003
11
GUARANTY
September 28, 2001
To induce Ceridian Corporation, a Delaware corporation ("Ceridian"), to
sell certain computers to User Technology Services Inc., a New York
corporation ("Borrower"), and a wholly owned subsidiary of Canterbury
Consulting Group, Inc. ("Guarantor") upon the consummation of the Stock
Purchase Agreement of even date herewith between Ceridian and Guarantor
("Stock Purchase Agreement"), pursuant to the terms of a promissory note in
the principal amount of $364,703.01 and the security agreement each of even
date hereof (collectively, the "Facilities"), the Guarantor hereby guarantees
to Ceridian the punctual payment of all sums owed by the Borrower to Ceridian
under or in connection with the Facilities when they are due and payable,
whether for principal, interest, fees, expenses, indemnification or other
amounts due under the Facilities when payment is demanded of the Guarantor
(collectively, the "Obligations"). The Guarantor agrees that, as between the
Guarantor and Ceridian, the Obligations may be declared to be due and payable
for the purposes of this Guaranty notwithstanding any stay, injunction or
other prohibition that may prevent, delay or vitiate any declaration as
regards the Borrower. The liability of the Guarantor hereunder is absolute
and unconditional irrespective of any defense, setoff or counterclaim with
respect to the Facilities, this Guaranty and the transactions contemplated
hereby which might constitute a defense available to, or discharge of, the
Borrower or a guarantor. This Guaranty is a guaranty of payment. The
Guarantor guarantees that the Obligations shall be paid strictly in
accordance with the terms of the Facilities.
Expect as provided in the Stock Purchase Agreement, the Guarantor
further agrees that all payments to be made hereunder shall be made without
setoff or counterclaim and free and clear of, and without deduction for, any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings or
restrictions or conditions of any nature whatsoever now or hereafter imposed,
levied, collected, withheld or assessed by any country or by any political
subdivision or taxing authority thereof or therein.
This Guaranty is a continuing guaranty of all Obligations now or
hereafter existing under the Facilities and shall remain in full force and
effect until payment in full of all Obligations and other amounts payable
under this Guaranty and until the Facilities are no longer in effect. This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by Ceridian on the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though the payment had
not been made.
The Guarantor shall reimburse Ceridian on demand for all costs,
expenses and charges (including without limitation fees and charges of
external legal counsel for Ceridian and costs allocated by its internal legal
department) incurred by Ceridian in connection with the enforcement of this
Guaranty. The obligations of the Guarantor under this provision shall
survive the termination of this Guaranty.
The laws of the State of New Jersey shall govern this Guaranty.
Service of process by Ceridian in connection with any such dispute shall be
binding on the Guarantor if sent to the Guarantor by registered mail at the
address specified below. THE GUARANTOR WAIVES ANY RIGHT THE GUARANTOR MAY
HAVE TO JURY TRIAL.
Address: CANTURBURY CONSULTING GROUP, INC.
0000 Xxxxxxx Xxxxx
Xxxxx 70 & Hartford Road
Medford, New Jersey 08055
By:/s/Xxxxx X. XxXxxxxx
--------------------------
Name: Xxxxx X. XxXxxxxx
Title: President
SECURITY AGREEMENT
THIS SECURITY AGREEMENT made this 28th day of September, 2001, by Canterbury
Consulting Group, Inc., a Pennsylvania corporation whose principal address is
0000 Xxxxxxx Xxxxx, Xxxxx 00 and Hartford Road, Medford, New Jersey 08055
("Borrower"), and Ceridian Corporation, a Delaware corporation whose principal
address is 0000 Xxxx Xxx Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
("Secured Party").
1. Borrower grants to Secured Party a security interest in the computers and
related equipment listed or described on Exhibit A hereto ("Collateral") to
secure payment to Secured Party of the Promissory Note of even date herewith
(the "Note").
2. At the time of attachment and perfection of the security interest granted
pursuant hereto and thereafter Borrower shall maintain all Collateral only at
the locations set forth on Exhibit B. The Collateral will not be removed from
such locations unless, prior to any such removal, the Borrower has given
written notice to the Secured Party of the location or locations to which the
Borrower desires to remove the Collateral, the Secured Party has given its
written consent to such removal and the Borrower has delivered to Secured Party
acknowledgment copies of filed financing statements filed where appropriate to
continue the perfection of Secured Party's security interest as a first
priority security interest therein.
3. Borrower represents and warrants that Borrower has full power and
authority to execute this Security Agreement and to subject the Collateral to
the security interest created hereby.
4. Borrower will at all times hereafter, execute such financing statements,
applications or certificates of title, and other instruments and perform such
acts as the Secured Party may request to establish and maintain an attached,
perfected and first priority security interest in the Collateral and will pay
all costs of filing and record. A carbon, photograph or other reproduction of
this Security Agreement shall be sufficient as a financing statement.
5. Borrower will keep the Collateral in good condition and insured against
such risks and in such amounts as required by Secured Party.
6. Borrower will not sell, transfer, lease, grant any security interest in
or dispose of the Collateral, or attempt to offer to do any of the foregoing,
without the prior written consent of the Secured Party. No provisions
contained in this Agreement shall be construed to authorize any such sale,
transfer, lease or other disposition of the Collateral except on the conditions
contained in this paragraph.
7. Upon the occurrence and continuation of an Event of Default, the Secured
Party shall have the authority, but shall not be obligated to: (a) in the name
of Borrower, demand, collect, receive and receipt for, compound, compromise,
settle and give acquittance for, and prosecute and discontinue any suits or
proceedings in respect of any or all of the Collateral; and (b) take any action
which the Secured Party may deem necessary or desirable in order to realize on
the Collateral.
1
8. Whenever a default in the terms governing payment or performance of the
Note shall exist or any breach of any obligation by Borrower shall have
occurred hereunder or an Event of Default shall have occurred pursuant to the
Note, the Secured Party may, without demand or notice, in addition to the
rights and remedies granted hereby or under the Note, exercise all rights and
remedies of a secured party under the Uniform Commercial Code or any other
applicable law. If a disposition of Collateral by Secured Party occurs,
Borrower specifically grants to the Secured Party the right to apply such
proceeds to reasonable attorneys' fees and expenses of all types incurred by
Secured Party or its attorneys in connection with negotiation with the
Borrower, its representatives, successors or assigns or collection of the Note,
repossession or disposition of Collateral, any reorganization or liquidation of
Borrower or any third party, or establishment or protection of the Secured
Party's position or lien upon the Collateral.
9. Borrower, by entering into this Agreement and negotiating the terms
hereof, voluntarily and knowingly waives any rights it may have to demand any
notices other than those provided for herein and any right to a hearing as a
condition precedent to Secured Party's exercise of its rights to foreclose on
any Collateral covered by this Agreement.
10. Borrower agrees, in the event of foreclosure of the security interest
created hereunder to make the Collateral available to the Secured Party at a
location designated by Secured Party.
11. If any notification of intended disposition of any of the Collateral is
required by law, such notification shall be deemed reasonably and properly
given if deposited in the United States Postal Service at least ten (10) days
before such disposition, postage prepaid, addressed to the Borrower as provided
for in Section 5.3 of the Note. Such deposit shall be established by affidavit
of a representative of Secured Party, receipts or other reasonable method.
12. No delay or failure by the Secured Party in the exercise of any right or
remedy shall constitute a waiver thereof, and no single or partial exercise by
the Secured Party of any right or remedy shall preclude other or further
exercise thereof or the exercise of any other right or remedy.
13. If any provision which is contained in this Agreement, should, for any
reason, be held to be invalid or unenforceable in any respect under the laws of
any State of the United States, such invalidity or unenforceabilty shall not
affect any other provision of this Agreement and in this Agreement shall be
construed as if such invalid or unenforceable provision had not been contained
herein.
14. Each of the Parties hereby acknowledges and agrees that each has been
advised by counsel during the course of negotiations and had significant input
in the drafting of this Agreement and shall not, therefore, be construed more
strictly against any party responsible for its drafting regardless of any
presumption or rule requiring construction against the party whose attorney
drafted this Agreement.
15. This Agreement may not be changed, modified, extended, terminated or
discharged orally, but only by an agreement in writing, which is signed by the
Borrower and the Secured Party of this Agreement. The parties agree to execute
any and all such other further instruments and documents, and to take any and
2
all such further actions which are reasonably required to effectuate this
Agreement and the intents and purposes hereof. To the extent that the
provisions of the Security Agreement and the Note conflict, the parties agree
that the terms of the Security Agreement shall govern.
16. This Security Agreement and the rights and obligations of the parties
hereunder shall be governed by the laws of the State of New Jersey.
CANTERBURY CONSULTING GROUP, INC.
By:/s/Xxxxx X. XxXxxxxx
--------------------------------------
Xxxxx X. XxXxxxxx
Its President
CERIDIAN CORPORATION
By:/s/Xxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxx
Its Senior Vice President
ACKNOWLEDGMENT
--------------
STATE OF NEW JERSEY )
)ss.
COUNTY OF BURLINGTON)
The foregoing instrument was acknowledged before me this 28th day of September,
2001, by Xxxxx X. XxXxxxxx, President of Canterbury Consulting Group, Inc.
/s/Xxxxx X. Xxxx
-------------------------------------
Notary Public
XXXXX X. XXXX
NOTARY PUBLIC OF NEW JERSEY
MY COMMISSION EXPIRES JULY 30, 2003
3
ACKNOWLEDGMENT
--------------
STATE OF MINNESOTA)
)ss.
COUNTY OF HENNEPIN)
The foregoing instrument was acknowledged before me this 27th day of September,
2001, by Xxxxxx X. Xxxxxxxx, Senior Vice President of Ceridian Corporation.
/s/Xxxxx X. Xxxxxxxxxxx
-------------------------------------
Notary Public
XXXXX X. XXXXXXXXXXX
Notary Public
Minnesota
My Commission Expires Jan. 31, 2006
4
EXHIBIT A
Collateral
+-----------------------------------------------------------------------------+
| | | | Physical |
| | Model | Serial | Location |
|---+-----------------+----------------------+--------------------------------|
| 1 | 2647-87U | 78ACFL4 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
| 2 | 2647-87U | 78ACFL7 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
| 3 | 2647-87U | 78ACFM0 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
| 4 | 2647-87U | 78ACFN1 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
| 5 | 2647-87U | 78GVF13 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
| 6 | 2647-87U | 78GVF16 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
| 7 | 2647-87U | 78GVF18 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
| 8 | 2647-87U | 78GVF21 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
| 9 | 2647-87U | 78GVF22 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|10 | 2647-87U | 78GVF23 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|11 | 2647-87U | 78GVF46 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|12 | 2647-87U | 78GVF47 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|13 | 2647-87U | 78GVF58 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|14 | 2647-87U | 78GVF65 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|15 | 2647-87U | 78GVF71 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|16 | 2647-87U | 78GVF84 | Usertech |
| | | | |
+-----------------------------------------------------------------------------+
5
+-----------------------------------------------------------------------------+
|17 | 2647-87U | 78GVF85 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|18 | 2647-87U | 78GVF94 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|19 | 2647-87U | 78GVF95 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|20 | 2647-87U | 78GVG00 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|21 | 2647-87U | 78GVG20 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|22 | 2647-87U | 78GVG32 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|23 | 2647-87U | 78GVG35 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|24 | 2647-87U | 78GVG49 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|25 | 2647-87U | 78GVG53 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|26 | 2647-87U | 78GVG62 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|27 | 2647-87U | 78GVG65 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|28 | 2647-87U | 78GVG67 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|29 | 2647-87U | 78GVG80 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|30 | 2647-87U | 78GVG86 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|31 | 2647-87U | 78GVG90 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|32 | 2647-87U | 78GVG95 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|33 | 2647-87U | 78GVG96 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|34 | 2647-87U | 78GVG97 | Usertech |
| | | | |
+-----------------------------------------------------------------------------+
6
+-----------------------------------------------------------------------------+
|35 | 2647-87U | 78GVG99 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|36 | 2647-87U | 78GVH01 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|37 | 2647-87U | 78GVH09 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|38 | 2647-87U | 78GVH36 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|39 | 2647-87U | 78GVH48 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|40 | 2647-87U | 78GVH51 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|41 | 2647-87U | 78GVH71 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|42 | 2647-87U | 78GVH75 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|43 | 2647-87U | 78GVH77 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|44 | 2647-87U | 78GVH79 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|45 | 2647-87U | 78GVH83 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|46 | 2647-87U | 78GVK00 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|47 | 2647-87U | 78GVK04 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|48 | 2647-87U | 78GVK12 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|49 | 2647-87U | 78GVK14 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|50 | 2647-87U | 78GVK15 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|51 | 2647-87U | 78GVK16 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|52 | 2647-87U | 78GVK17 | Usertech |
| | | | |
+-----------------------------------------------------------------------------+
7
+-----------------------------------------------------------------------------+
|53 | 2647-87U | 78GVK18 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|54 | 2647-87U | 78GVK19 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|55 | 2647-87U | 78GVK42 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|56 | 2647-87U | 78GVK61 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|57 | 2647-87U | 78GVK63 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|58 | 2647-87U | 78GVK64 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|59 | 2647-87U | 78GVK71 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|60 | 2647-87U | 78GVK74 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|61 | 2647-87U | 78GVK77 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|62 | 2647-87U | 78GVK84 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|63 | 2647-87U | 78GVK87 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|64 | 2647-87U | 78GVK97 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|65 | 2647-87U | 78GVL07 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
x00 x0000-00X | 78GVL15 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|67 | 2647-87U | 78GVL23 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|68 | 2647-87U | 78GVL24 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|69 | 2647-87U | 78GVL26 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|70 | 2647-87U | 78GVL28 | Usertech |
| | | | |
+-----------------------------------------------------------------------------+
8
+-----------------------------------------------------------------------------+
|71 | 2647-87U | 78GVL30 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|72 | 2647-87U | 78GVL75 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|73 | 2647-87U | 78GVL76 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|74 | 2647-87U | 78GVL90 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|75 | 2647-87U | 78GVL91 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|76 | 2647-87U | 78GVL93 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|77 | 2647-6BU | 78MZNZ8 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|78 | 2647-87U | 78ACFL2 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|79 | 2647-87U | 78GVK06 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|80 | 2647-87U | 78GVK26 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|81 | 2647-87U | 78GVH81 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|82 | 2647-87U | 78GVH85 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|83 | 2647-87U | 78GVL16 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|84 | 2647-87U | 78ACFL6 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|85 | 2647-87U | 78GVK31 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|86 | 2647-87U | 78GVK45 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|87 | 2647-87U | 78GVL14 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|88 | 2647-87U | 78GVL84 | Usertech |
| | | | |
+-----------------------------------------------------------------------------+
9
+-----------------------------------------------------------------------------+
|89 | 2647-87U | 78GVL88 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|90 | 2647-87U | 78GVK27 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|91 | 2647-87U | 78GVL82 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|92 | 2647-87U | 78GVH11 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|93 | 2647-87U | 78GVL22 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|94 | 2647-87U | 78GVH70 | Usertech |
| | | | |
|---+-----------------+----------------------+--------------------------------|
|95 | 2647-87U | 78GVG85 | Usertech |
| | | | |
+-----------------------------------------------------------------------------+
10
EXHIBIT B
One Xxxxxxx Street
East Norwalk, Connecticut
Park 00 Xxxx
Xxxxx Xxx
Xxxxxxxxxxx, Xxx Xxxxxx
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxx
11
