STOCK PURCHASE AGREEMENT Dated May 8, 2007
EXHIBIT
4.11
Dated
May 8, 2007
The
parties to this Stock Purchase Agreement (the “Agreement”) are Xxxxxx
Xxxxxxxxxxx (“SD”) and Xxxxxx Xxxxxx (“LE”) (collectively, the “Members”),
Contrado Partners, LLC (“Contrado”), a North Carolina limited liability company,
and SeaBreeze Partners, LLC (“SeaBreeze”), a New York limited liability company
(Contrado and SeaBreeze, collectively, the “Shareholders”), and BluePhoenix
Solutions Ltd. (the “Purchaser”), an Israeli company.
SD
is the
managing member of Contrado, and LE is the managing member of SeaBreeze. The
Shareholders own, in the aggregate, all the outstanding shares of common stock
(such shares owned by the Shareholders, the “Company Shares”) of BridgeQuest,
Inc. (the “Company”), a North Carolina corporation. The Company owns all the
outstanding shares of common stock (such shares owned by the Company, the “Sub
Shares”), of BridgeQuest Labs Inc. (“BQ Labs”), a North Carolina corporation. BQ
Labs manages an operating branch in St. Petersburg, Russia (the “Branch”). As
used in this Agreement, the term “Companies” means, collectively, the Company,
BQ Labs, and the Branch.
The
Branch is experienced in providing specialized outsourced information technology
consulting and systems from the Russian Federation to United States and other
foreign customers, and has, or will be able to hire, professional personnel
in
the Russian Federation sufficient in number and competence to meet the
Companies’ reasonably anticipated professional personnel requirements (including
those of the Purchaser and its affiliates) over the next 12 months.
The
Purchaser wishes to purchase from the Shareholders, and the Shareholders wish
to
sell to the Purchaser, all the Company Shares for the consideration set forth
in
this Agreement.
Accordingly,
the parties agree as follows:
1. Sale
and Purchase.
At the
Closing referred to below, the Shareholders are selling, and the Purchaser
is
purchasing, all the Company Shares. The closing of the transactions contemplated
by this Agreement (the “Closing”) is taking place simultaneously with the
execution and delivery of this Agreement.
2. Closing
(a) Prior
to
or simultaneously
with the execution and delivery of this Agreement, the Members and Shareholders
are delivering or have delivered, or are causing or have caused to be delivered,
to the Purchaser the following:
(i) counterparts
of this Agreement executed by the Members and Shareholders;
(ii) counterparts
of the amendment to consulting agreement dated the date of this Agreement
between Contrado and the Company in the form of exhibit 2(a)(ii)(A) (the
“Contrado Consulting Agreement”), and the amendment to consulting agreement
dated the date of this agreement between SeaBreeze and the Company in the form
of exhibit 2(a)(ii)(B) (the “SeaBreeze Consulting Agreement”) (the Contrado
Consulting Agreement and the SeaBreeze Consulting Agreement, collectively,
the
“Consulting Agreements”), executed by each party to the respective Consulting
Agreement;
(iii) counterparts
of the non-competition agreement dated the date of this Agreement among the
Purchaser and the Members in the form of exhibit 2(a)(iii) (the “Non-Competition
Agreement”) executed by the Members;
(iv) certificates
evidencing all the Company Shares, together with stock transfer powers executed
in blank, and with all required stock transfer tax stamps attached;
and
(v) copies
of
the resolutions of the board of directors of the Company authorizing the
execution and delivery of the Consulting Agreements, together with a certificate
of the Company’s secretary to the effect that (A) attached to such certificate
are true and complete copies of the Company’s certificate of incorporation and
bylaws, as in effect on the date of this Agreement, in the forms of exhibit
2(a)(v)(A)(1) and 2(a)(v)(A)(2), respectively (collectively, the “Company
Organizational Instruments”), and (B) the resolutions referred to above were
duly adopted and have not been rescinded or amended.
(b) Simultaneously
with the execution and delivery of this Agreement, the Purchaser is:
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(i)
delivering to the Members and Shareholders a counterpart of each of this
Agreement and the Non-Competition Agreement executed by the Purchaser;
(ii)
paying each Shareholder, by wire transfer of immediately available funds to
accounts designated in writing by the Shareholders, $1,000,000;
(iii)
causing the Shareholders to be released from all liability in respect of the
Company’s indebtedness to Wachovia Bank; and
(iv)
delivering to the Members and Shareholders copies of the resolutions of the
board of directors of the Purchaser authorizing the execution and delivery
of
this Agreement, together with a certificate of the Purchaser’s secretary to the
effect that (A) attached to such certificate are true and complete copies of
the
Purchaser’s organizational instruments as in effect on the date of this
Agreement, in the form of exhibit 2(b)(iv)(A), and (B) the resolutions referred
to above were duly adopted and have not been rescinded or amended.
3. Additional
Consideration
(a) If
the
Company’s Revenue (as defined and determined in accordance with section
3(g)(i)(A) below) in the nine months beginning April 1, 2007 and ending December
31, 2007 exceeds $4,000,000, the Purchaser shall, subject to the fulfillment
of
the conditions set forth in section 3(e) below (the “Procedural Provisions”),
pay each Shareholder, by wire transfer of immediately available funds to an
account or accounts designated in writing by the Members, an amount equal to
25%
of that excess.
(b) If
the
Company’s Operating Profit (as defined and determined in accordance with section
3(g)(i)(B) below) in the nine months beginning April 1, 2007 and ending December
31, 2007 exceeds $750,000, the Purchaser shall, subject to the fulfillment
of
the conditions set forth in the Procedural Provisions, pay each Shareholder,
by
wire transfer of immediately available funds to an account or accounts
designated in writing by the Members, an amount equal to 50% of that excess.
(c) (i) If
the
Company’s Operating Profit in the calendar year ending December 31, 2008 is
greater than zero but equal to or less than $1,500,000, the Purchaser shall,
subject to the fulfillment of the conditions set forth in the Procedural
Provisions, pay each Shareholder, on or before March 31, 2009, by wire transfer
of immediately available funds to an account or accounts designated in writing
by the Members, an amount equal to 39.2% of that Operating Profit.
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(ii)
If the
Company’s Operating Profit in the calendar year ending December 31, 2008 is
greater than $1,500,000 but equal to or less than $2,250,000, the Purchaser
shall, subject to the fulfillment of the conditions set forth in the Procedural
Provisions, pay each Shareholder, on or before March 31, 2009, by wire transfer
of immediately available funds to an account or accounts designated in writing
by the Members, an amount equal to the sum of (A) $588,000 plus (B) 44.1% of
the
amount by which that Operating Profit exceeds $1,500,000.
(iii)
If the
Company’s Operating Profit in the calendar year ending December 31, 2008 is
greater than $2,250,000 but equal to or less than $3,000,000, the Purchaser
shall, subject to the fulfillment of the conditions set forth in the Procedural
Provisions, pay each Shareholder, on or before March 31, 2009, by wire transfer
of immediately available funds to an account or accounts designated in writing
by the Members, an amount equal to the sum of (A) $918,750 plus (B) 49% of
the
amount by which that Operating Profit exceeds $2,250,000.
(iv)
If the
Company’s Operating Profit in the calendar year ending December 31, 2008 is
greater than $3,000,000, the Purchaser shall, subject to the fulfillment of
the
conditions set forth in the Procedural Provisions, pay each Shareholder, on
or
before March 31, 2009, by wire transfer of immediately available funds to an
account or accounts designated in writing by the Members, an amount equal to
the
sum of (A) $1,286,250 plus (B) 53.9% of the amount by which that Operating
Profit exceeds $3,000,000.
(d) (i) If
the
Company’s Cumulative Operating Profit (as defined and determined in accordance
with section 3(g)(i)(C) below) for the two calendar years beginning January
1,
2008 and ending December 31, 2009 is greater than zero but equal to or less
than
$3,000,000, the Purchaser shall, subject to the fulfillment of the conditions
set forth in the Procedural Provisions, pay each Shareholder, on or before
March
31, 2010, by wire transfer of immediately available funds to an account or
accounts designated in writing by the Members, an amount equal to (A) 49% of
that Cumulative Operating Profit, reduced (but not to less than zero) by (B)
the
amount, if any, of the payment made to that Shareholder pursuant to section
3(c).
(ii) If
the
Company’s Cumulative Operating Profit for the two calendar years beginning
January 1, 2008 and ending December 31, 2009 is greater than $3,000,000 but
equal to or less than $4,500,000, the Purchaser shall, subject to the
fulfillment of the conditions set forth in the Procedural Provisions, pay each
Shareholder, on or before March 31, 2010, by wire transfer of immediately
available funds to an account or accounts designated in writing by the Members,
an amount equal to (A) the sum of (1) $1,470,000, reduced (but not to less
than
zero) plus (2) 55.125% of the amount by which such Cumulative Operating Profit
exceeds $3,000,000, reduced by (B) the amount, if any, of the payment made
to
that Shareholder pursuant to section 3(c).
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(iii) If
the
Company’s Cumulative Operating Profit for the two calendar years beginning
January 1, 2008 and ending December 31, 2009 is greater than $4,500,000 but
equal to or less than $6,000,000, the Purchaser shall, subject to the
fulfillment of the conditions set forth in the Procedural Provisions, pay each
Shareholder, on or before March 31, 2010, by wire transfer of immediately
available funds to an account or accounts designated in writing by the Members,
an amount equal to (A) the sum of (1) $2,296,875 plus (2) 61.25% of the amount
by which such Cumulative Operating Profit exceeds $4,500,000, reduced (but
not
to less than zero) by (B) the amount, if any, of the payment made to that
Shareholder pursuant to section 3(c).
(iv) If
the
Company’s Cumulative Operating Profit for the two calendar years beginning
January 1, 2008 and ending December 31, 2009 is greater than $6,000,000, the
Purchaser shall, subject to the fulfillment of the conditions set forth in
the
Procedural Provisions, pay each Shareholder, on or before March 31, 2010, by
wire transfer of immediately available funds to an account or accounts
designated in writing by the Members, an amount equal to (A) the sum of (1)
$3,215,625 plus (2) 67.375% of the amount by which such Cumulative Operating
Profit exceeds $6,000,000, reduced (but not to less than zero) by (B) the
amount, if any, of the payment made to that Shareholder pursuant to section
3(c).
(e) Each
payment to a Shareholder referred to in this section 3 is subject to the
fulfillment of the conditions that:
(i)
on or
before the date on which a particular payment would be required, the engagement
of that Shareholder shall not have been terminated by the Company for Cause
(as
defined in the respective Consulting Agreement) or Performance Failure (as
defined in the respective Consulting Agreement) or voluntarily by that
Shareholder other than for Good Reason (as defined in the respective Consulting
Agreement), and
(ii)
SD
and LE shall have furnished the Company’s independent accountants and the
Purchaser a management confirmation letter in substantially the form of exhibit
3(e); provided,
however,
if the
engagement of the respective Shareholder shall have terminated prior to the
completion of the applicable audit as a result of the respective Member’s death,
Permanent Disability (as defined in the respective Consulting Agreement),
voluntary termination for Good Reason, or termination by the Company without
Cause, the furnishing of such management confirmation letter by that individual
shall not constitute a condition to the particular payment.
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(f) Notwithstanding
anything to the contrary in this Agreement, if the engagement of a Shareholder
shall have terminated prior to December 31, 2009 as a result of a termination
by
the Company without Cause (other than as a result of the respective Member’s
death or Permanent Disability) or as a result of a voluntary termination by
the
Shareholder for Good Reason, the Purchaser shall pay that Shareholder, not
later
than 10 business days after the determination of the amount so payable becomes
final, binding, and conclusive on the parties, an amount, in lieu of any amounts
thereafter payable to that Shareholder otherwise under this section 3, equal
to
the Formula Amount. For these purposes, the term “Formula Amount” means: (i) in
the event the termination of the Shareholder’s engagement occurs during calendar
year 2007, $2,250,000; (ii) in the event the termination of the Shareholder’s
engagement occurs during calendar year 2008, an amount equal to the sum of
(A)
the amount, if any, payable, but not yet paid, to that Shareholder pursuant
to
section 3(b), plus (B) the aggregate amount that would have been payable to
that
Shareholder pursuant to sections 3(c) and 3(d), if the Company’s Operating
Profit in each of calendar years 2008 and 2009 equaled the Company’s Operating
Profit in the 12 months ended on the last day of the calendar month immediately
preceding the date of termination; and (iii) in the event the termination of
the
Shareholder’s engagement occurs during calendar year 2009, an amount equal to
the sum of (A) the aggregate amount, if any, payable, but not yet paid, to
that
Shareholder pursuant to sections 3(b) and 3(c), plus (B) the amount that would
have been payable to that Shareholder pursuant to section 3(d), if the Company’s
Operating Profit in calendar year 2009 equaled the Company’s Operating Profit in
the 12 months ended on the last day of the calendar month immediately preceding
the date of termination. It is understood and agreed that the costs and expenses
of preparing the Company’s consolidated income statement on the basis of which
the Formula Amount is to be determined, up to a maximum of $5,000 in any
calendar year, shall be borne by the Shareholder or Shareholders to whom the
Formula Amount is to be payable, which costs and expenses may be deducted from
the Formula Amount when paid (it being understood and agreed that, if the
Companies’ operations increase materially in size, the $5,000 amount referred to
in this sentence shall be subject to upward adjustment by mutual agreement
of
the parties).
(g) (i) As
used
in this Agreement, the following terms have the following respective
meanings:
(A) “Revenue”
means the consolidated revenue of the Companies for the period in question,
determined by the Purchaser on the basis of the Company’s consolidated income
statement for that period (which shall be audited) prepared in accordance with
generally accepted accounting principles applied in a manner consistent with
the
application of those principles by the Purchaser to its business generally
(“GAAP”);
6
(B) “Operating
Profit” and “Operating Loss” for a particular period mean (1) the Companies’
consolidated earnings or loss, respectively, before interest and taxes
(excluding employment and similar taxes), for that period, determined by the
Purchaser on the basis of the Company’s consolidated income statement for that
period (which shall be audited) prepared in accordance with GAAP, reduced by
(2)
an amount equal to 75% of the operating profit, if any, attributable to Revenue
derived from Internally Provided Services (as defined below). Operating Profit
and Operating Loss also shall reflect (1) the costs and expenses of the
Companies in performing all the obligations required under section 6(b)(iii)
in
accordance with GAAP;
(C) “Cumulative
Operating Profit” for a two-year period means (A) the sum of the Operating
Profit for the year or years in which there was Operating Profit, reduced by
(B)
the sum of the Operating Loss for the year or years in which there was Operating
Loss; and
(D) “Internally
Provided Services” means services the Companies provide to the Purchaser or its
affiliates that do not relate to a specific customer engagement.
(ii) As
promptly as practicable, but in no event more than 90 days, after December
31 of
each of 2007, 2008, and 2009 (or, in the case of the determination of an amount
payable pursuant to section 3(f), in no event more than 90 days after the
termination of the engagement), the Purchaser shall
(A)
furnish the Shareholder or Shareholders to whom an amount might be payable
pursuant to this section 3 the Companies’ consolidated income statement for the
respective year, prepared in accordance with GAAP and audited by the Purchaser’s
independent accountants, and a statement (the “Statement”) of the Purchaser’s
chief financial officer setting forth the amount, and, in reasonable detail,
the
calculation of the amount, if any, due the Shareholder or Shareholders pursuant
to this section 3, and
(B)
pay
each Shareholder the amount due that Shareholder pursuant to this section 3,
as
set forth in the Statement. Unless the Members deliver to the Purchaser a Notice
of Disagreement pursuant to section 3(g)(iii) within 30 business days after
they
receive the consolidated income statement and Statement delivered pursuant
to
the immediately preceding clause (A), the consolidated income statement and
Statement shall be final, binding, and conclusive on all the parties for all
purposes of this Agreement.
7
(iii) If
the
Members give the Purchaser a written notice of disagreement (a “Notice of
Disagreement”) pursuant to section 3(g)(ii), the parties shall, during a period
of 30 business days following delivery to the Purchaser of the Notice of
Disagreement, attempt to resolve in writing any differences with respect to
any
matter specified in the Notice of Disagreement.
If,
at
the end of that 30 business day period, the parties have failed to agree in
writing with respect to all such matters, the matters as to which agreement
has
not been reached (the “Disputed Matters”) shall be submitted to an arbitrator
(the “Arbitrator”), which the parties shall select.
If
the
Arbitrator shall not have been selected, and shall not have agreed to serve,
within 20 business days after the expiration of that 30 business day period,
the
Arbitrator shall be selected by the president of the American Arbitration
Association. Any arbitration under this section 3(g)(iii) shall be held in
Raleigh, North Carolina pursuant to procedures established by the Arbitrator.
The Arbitrator shall consider only the Disputed Matters.
The
Arbitrator shall deliver to the Purchaser and the Members a Statement, adjusted
to reflect any written agreement between the parties with respect to any matters
specified in the Notice of Disagreement and the determination of the Arbitrator
with respect to all Disputed Matters. The Statement, as so adjusted, shall
be
final, binding, and conclusive on all parties for all purposes of this
Agreement. Within 10 days after the Arbitrator delivers the Statement, as so
adjusted, to the Purchaser, the Purchaser shall pay each Shareholder the excess,
if any, of the amount set forth in the Statement, as so adjusted, as being
due
each Shareholder pursuant to this section 3 over the amount actually paid
pursuant to section 3(g)(ii). Each party shall bear that party’s own fees and
expenses in connection with the arbitration, and the Members, on the one hand,
and the Purchaser, on the other hand, shall each bear 50% of the fees and
expenses of the Arbitrator and the American Arbitration
Association.
4. Representations
and Warranties of the Members and Shareholders.
The
Members and Shareholders jointly and severally represent and warrant to the
Purchaser as follows:
4.1 Existence,
Qualification,
Etc(a) Each
Shareholder is a limited liability company validly existing and in good standing
under the law of its state of organization set forth above, and has full limited
liability company power and authority to conduct its business and own and
operate its properties as now conducted, owned, and operated. The Shareholders
have delivered to the Purchaser true, correct, and complete copies of each
Shareholder’s certificate of formation and limited liability company agreement
(the “Shareholder Organizational Instruments”).
8
(b) The
Company is a corporation validly existing and in good standing under the law
of
the state of North Carolina, and has full corporate power and authority to
conduct its business and own and operate its properties as now conducted, owned,
and operated. The Shareholders have delivered to the Purchaser true, correct,
and complete copies of the Company’s Organizational Instruments. The Company is
not required to be licensed or qualified as a foreign corporation in any
jurisdiction other than North Carolina.
(c) BQ
Labs
is a corporation validly existing and in good standing under the law of the
state of North Carolina, and has full corporate power and authority to conduct
its business and own and operate its properties as now conducted, owned, and
operated. The Shareholders have delivered to the Purchaser true, correct, and
complete copies of BQ Labs’ certificate of incorporation and bylaws (the “BQ
Labs Organizational Instruments”). BQ Labs is not required to be licensed or
qualified as a foreign corporation in any jurisdiction other than North
Carolina. The Branch is properly and legally registered to conduct business
in
the Russian Federation.
4.2 Authorization
and Enforceability; Shares(a) Each
Shareholder has the full power and authority and has taken all required action
necessary to permit it to execute, deliver, and perform this Agreement, and
none
of those actions will violate any provision of the Shareholder Organizational
Instruments or any applicable law, regulation, order, or judgment, or result
in
the breach of, or constitute a default (or an event that, with notice or lapse
of time or both, would constitute a default) under, any agreement, instrument,
or understanding to which it is a party or by which it is bound. The Company
has
the full power and authority and has taken all required action necessary to
permit it to execute, deliver, and perform the Consulting Agreements, and none
of those actions will violate any provision of the Company Organizational
Instruments or any applicable law, regulation, order, or judgment, or result
in
the breach of, or constitute a default (or an event that, with notice or lapse
of time or both, would constitute a default) under, any agreement, instrument,
or understanding to which it is a party or by which it is bound. This Agreement
constitutes a legal, valid, and binding obligation of each Member and
Shareholder, enforceable against each in accordance with its terms, except
to
the extent limited by applicable bankruptcy, insolvency, reorganization,
moratorium, and similar laws of general application related to the enforcement
of creditor's rights generally and general principles of equity. Each Consulting
Agreement constitutes a legal, valid, and binding obligation of Contrado or
SeaBreeze, as the case may be, enforceable against each such party in accordance
with its terms, except to the extent limited by applicable bankruptcy,
insolvency, reorganization, moratorium, and similar laws of general application
related to the enforcement of creditor's rights generally and general principles
of equity. The Non-Competition Agreement constitutes a legal, valid, and binding
obligation of each Member, enforceable against each in accordance with its
terms, except to the extent limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and similar laws of general application related
to
the enforcement of creditor's rights generally and general principles of
equity.
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(b) The
Company Shares and the Sub Shares are duly authorized, validly issued and
outstanding, fully paid, and nonassessable.
(c) None
of
the Company Shares or Sub Shares is subject to any option, right of first
refusal, right of first offer, voting agreement or trust, preemptive right,
or
any other rights in favor of any third party.
(d) The
Branch is a division of BQ Labs, not a separate legal entity, and all its assets
are owned by BQ Labs.
4.3 Capitalization As
of the
date of this Agreement, the authorized and issued capital stock of the Company
and BQ Labs are as set forth in schedule 4.3, which sets forth the number of
Company Shares owned by each Shareholder and the number of shares of each class
of capital stock of BQ Labs owned by the Company. All the Company's and BQ
Labs’
outstanding shares of capital stock are validly issued, fully paid, and
nonassessable, and have been issued in compliance with all applicable laws.
Neither the Company nor BQ Labs has granted or issued any options, convertible
securities, warrants, phantom stock, stock appreciation rights, preemptive
rights, rights of first offer, rights of first refusal, antidilution rights,
registration rights, or commitments of any kind relating to any issued or
unissued equity interests of the Company or BQ Labs.
4.4 Financial
Statements.
The
financial statements (together with the notes to the financial statements)
described in schedule 4.4 (the “Financial Statements”) are in accordance with
the books and records of the Companies and (a) in the case of the consolidated
Financial Statements, fairly present the consolidated financial condition and
consolidated results of operations of the Companies as of the dates and for
the
periods indicated, in accordance with generally accepted accounting principles
consistently applied, and (b) in each other case, fairly present the financial
condition and results of operations of the Company or BQ Labs (including the
Branch), as the case may be, as of the dates and for the periods indicated,
in
accordance with generally accepted accounting principles consistently applied.
Schedule 4.4 also contains a true and complete copy of the Companies’ budget for
the calendar year ending December 31, 2007, as well as a detailed list of
backlog as of April 1, 2007. All the assets and liabilities of the Branch are
reflected in the Financial Statements of BQ Labs.
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4.5 Absence
of Certain Changes
(a) Except
as
set forth in schedule 4.5, from the date of the most recent balance sheet
included in the Financial Statements (the “Current Balance Sheet Date”) to the
date of this Agreement, none of the Companies has:
(i) incurred
any liabilities, other than current liabilities incurred, or obligations under
contracts entered into, in the ordinary course of business and consistent with
past practice;
(ii) paid,
discharged, or satisfied any claim, lien, or liability, other than any claim,
lien, or liability (A) reflected or reserved against on the consolidated balance
sheet as of the Current Balance Sheet Date described in schedule 4.4 (the
“Current Balance Sheet”) and paid, discharged, or satisfied in the ordinary
course of business and consistent with past practice since the Current Balance
Sheet Date, or (B) incurred and paid, discharged, or satisfied since the Current
Balance Sheet Date in the ordinary course of business and consistent with past
practice;
(iii) sold,
leased, assigned, or otherwise transferred any of its assets, tangible or
intangible, or sold any of its services (other than sales of assets or services
in the ordinary course of business and consistent with past
practice);
(iv) permitted
any of its assets, tangible or intangible, to become subject to any lien,
security interest, or other charge or encumbrance (other than any Permitted
Lien);
(v) written
off as uncollectible any accounts receivable;
(vi) terminated
or amended, or suffered the termination or amendment of, or failed to perform
in
all material respects, all its obligations, or suffered or permitted any
material default to exist under, any material agreement, license, or
permit;
(vii) suffered
any damage, destruction, or loss of any fixed assets (whether or not covered
by
insurance);
(viii) made
any
loan to any person or entity (including advances to employees);
(ix) canceled,
waived, or released any debt, claim, or right;
(x) paid
any
amount to, or entered into any agreement, arrangement, or transaction with,
any
affiliate (including its officers, directors, and employees), other than
payments of salary and benefits to employees in the ordinary course of business
and consistent with past practice;
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(xi) declared,
set aside, or paid any dividend or distribution with respect to its capital
stock, or redeemed, purchased, or otherwise acquired any of its capital
stock;
(xii) granted
any increase in the compensation of any officer or employee or made any other
change in employment terms of any officer or employee;
(xiii) made
any
change in accounting or cash management practices;
(xiv) suffered
or caused any other occurrence, event, or transaction outside the ordinary
course of business; or
(xv) agreed,
in writing or otherwise, to any of the foregoing.
(b) Since
the
Current Balance Sheet Date, there has been no material adverse change in the
Companies or their respective businesses.
4.6 Litigation.
Except
as set forth in schedule 4.6, as of the date of this Agreement, no claim, suit,
proceeding, or investigation is pending or, to the knowledge of the any
individual listed in schedule 4.6 (the “Specified Senior Employees”), threatened
against or affecting the Companies, and there is no valid basis for any claim,
suit, or proceeding against the Companies.
4.7 Licenses,
Compliance with Law, Other Agreements.
Except
as set forth in schedule 4.7, each of the Companies has all material franchises,
permits, licenses, and other rights to allow it to conduct its business and
is
not in violation, in any material respect, of any order or decree of any court,
or of any law, order, or regulation of any Governmental Agency, or of the
provisions of any material contract or agreement to which it is a party or
by
which it is bound, and neither this Agreement nor the transactions contemplated
by this Agreement will result in any such violation. The Companies’ businesses
have been conducted in all material respects in compliance with all applicable
laws, rules, and regulations.
4.8 Third-Party
Approvals.
Neither
the Company nor BQ Labs (including the Branch) is required to obtain any order,
consent, approval, or authorization of, or to make any declaration or filing
with, any Governmental Agency or other third party in connection with the
execution, delivery, or performance of this Agreement or the transactions
contemplated by this Agreement.
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4.9 No
Undisclosed Liabilities.
None of
the Companies has any liabilities or obligations, whether or not disclosed
in
the Financial Statements or the notes to the Financial Statements, and whether
actual or contingent, except (a) as disclosed in schedule 4.9 or on the face
of
the Financial Statements (excluding any notes to the Financial Statements),
(b)
those set forth as such in a schedule to this Agreement, (c) those incurred
in
the ordinary course of business and consistent with past practice since the
Current Balance Sheet Date and that will not have a material adverse effect
on
any of the Companies, or (d) those under agreements, written or oral, set forth
in a schedule to this Agreement or not required to be set forth in a schedule
to
this Agreement
4.10 Tangible
Assets.
Each of
the Companies owns or leases all tangible assets used or reasonably necessary
in
connection with the conduct of its business. All material tangible assets owned
or leased by the Companies are free from any liens, security interests, or
other
charges or encumbrances (other than Permitted Liens), are free from any material
defects, have been maintained in accordance with normal industry practice and
any regulatory standard or procedure to which such assets are subject, are
in
good operating condition and repair (subject to normal wear and tear), and
are
suitable for the purposes for which such assets are used or proposed to be
used,
other than liens, security interests, other charges and encumbrances, defects,
and wear and tear that, in the aggregate, could not be expected to have a
material adverse effect on any of the Companies.
4.11 Real
Property
None of
the Companies owns any real property.
4.12 Intellectual
Property.
Except
as set forth in schedule 4.12:
(a)
each
of
the Companies has a valid and enforceable license to, or owns and possesses
all
right, title, and interest in and to, all Intellectual Property necessary for
the operation of its business, as presently conducted and as presently proposed
to be conducted (collectively, the "Company Intellectual Property”);
(b)
the
Company Intellectual Property is not subject to any liens, security interests,
or other charges or encumbrances, and is not subject to any restrictions or
limitations regarding use or disclosure;
(c)
none
of
the Companies has infringed, misappropriated, or otherwise conflicted with,
and
the operation of its business as currently conducted, or as currently proposed
to be conducted, will not infringe, misappropriate, or otherwise conflict with,
any Intellectual Property of any third party;
(d)
no
Specified Senior Employee is aware of any facts that indicate a likelihood
of
any of the foregoing, and no Specified Senior Employee has received any notices
regarding any of the foregoing;
13
(e)
the
Companies have taken all commercially reasonable actions to maintain and protect
all the Company Intellectual Property;
(f)
none
of
the Companies licenses any Intellectual Property from any third parties (other
than commercially available off-the-shelf software), and none requires any
license from any third party to use any Intellectual Property (other than
commonly available off-the-shelf software) for the operation of its business,
as
presently conducted and as presently proposed to be conducted;
(g)
to
the
knowledge of the Specified Senior Employees, as of the date of this Agreement,
no third party has infringed, misappropriated, or otherwise conflicted with any
of the Company Intellectual Property, and, as of the date of this Agreement,
no
Specified Senior Employee is aware of any facts that indicate a likelihood
of
any of the foregoing; and
(h)
as
of the
date of this Agreement, none of the Companies has agreed to indemnify any third
party for or against any interference, infringement, misappropriation, or other
conflict with respect to any Intellectual Property (except for indemnity
provisions included in the ordinary course of business in agreements with
customers and software providers).
4.13 Employees,
Etc.
Schedule
4.13 lists each employee (which term, as used in this Agreement, includes
consultants, unless the context otherwise requires) of each of the Companies
and
the respective employee’s gross salary. From the Current Balance Sheet Date to
the date of this Agreement, no employee has terminated employment with any
of
the Companies, except in the ordinary course of business. To the knowledge
of
the Specified Senior Employees, and except for terminations of employment that
may reasonably be expected in the ordinary course of business, no employee
plans
to terminate employment with any of the Companies in the reasonably foreseeable
future. None of the Companies has committed any unfair labor practice or
violated any applicable law or regulation regulating employers or the terms
and
conditions of its employees' employment.
4.14 Employee
Benefits.
As of
the date of this Agreement, except as set forth in schedule 4.14, none of the
Companies maintains or has ever maintained any employee pension benefit plans
(as defined in section 3(2) of ERISA), employee welfare benefit plans (as
defined in section 3(1) of ERISA), or fringe benefit plans or programs. Except
as set forth in schedule 4.14, the Financial Statements reflect all accruals
required by generally accepted accounting principles for liabilities for all
employee pension benefit plans, employee welfare benefit plans, and fringe
benefit plans and programs, including, without limitation, vacation benefits,
sick day benefits, bonuses, and deferred compensation. Schedule 4.14 describes
all salary and benefit changes within the past 12 months. No further changes
have been agreed or committed to or announced by or on behalf of any of the
Companies; and, except as set forth in schedule 4.14 or as contemplated by
the
budget referred to in section 4.4, no further changes are planned, scheduled,
or
contemplated by any of the Companies prior to January 1, 2008.
14
4.15 Related
Party Agreements.
As of
the date of this Agreement, schedule 4.15 sets forth all agreements,
arrangements, and understandings with each of the Companies’ employees,
officers, directors, and affiliates. As of the date of this Agreement, except
as
set forth in schedule 4.15, none of the Companies is a party to any agreements,
arrangements, or understandings with, or any liabilities or other obligations
to, any of its employees, officers, directors, or affiliates.
4.16 Taxes(a) Schedule
4.16 sets forth the dates through which all Tax Returns of each of the Companies
have been audited. The Company operates in the United States and the Russian
Federation in compliance with all applicable transfer price regulations.
(b) Except
as
set forth in schedule 4.16:
(i) each
of
the Companies has filed all Tax Returns it was required to file, and has paid
all Taxes shown on those Tax Returns as owing;
(ii) none
of
the Companies (i) has been a member of an affiliated group filing a consolidated
federal Tax Return and (ii) has no liability for the Taxes of any person or
entity (other than itself (under Treasury Regulation §1.1502-6 or any similar
provision of state, local, or foreign law), as a transferee or successor, by
contract, or otherwise;
(iii) each
of
the Companies has withheld and paid all Taxes required to have been withheld
and
paid in connection with amounts paid or owing to any employee, independent
contractor, creditor, shareholder, or other third party; and
(iv) as
of the
date of this Agreement, there is no dispute or claim concerning any Tax
Liability of any of the Companies either (i) claimed or raised by any authority
in writing or (ii) as to which any of the Companies or Specified Senior
Employees has knowledge.
(c) Except
as
set forth in schedule 4.16 or otherwise in a writing addressed to the Purchaser,
the Financial Statements contain all appropriate provisions to cover all
uncertain Tax positions.
15
4.17 Certain
Fees.
No fees
or commissions will be payable by the Companies to any broker, financial
advisor, finder, investment banker, or bank with respect to the transactions
contemplated by this Agreement.
4.18 Insurance.
The
respective Companies maintain the insurance set forth in schedule 4.19, and
none
of the Companies has been denied insurance coverage. The Companies maintain
all
insurance required by their customers or by applicable Governmental Agencies.
4.19 Contracts
and Commitments(a) As
of the
date of this Agreement, except as set forth in schedule 4.19, none of the
Companies is a party to or bound by any of the following agreements, whether
such agreements are written or oral:
(i) contract
for the employment of any person on a full-time, part-time, or consulting basis
or any severance agreements, other than at the will of the
employer;
(ii) promissory
note, agreement, or promise to pay, or indenture relating to the borrowing
of
money or to mortgaging, pledging, or otherwise placing a lien, security
interest, or other charge or encumbrance on any of its assets, other than
Permitted Liens;
(iii) agreements
with respect to the lending or investing of funds, other than agreements entered
into in the ordinary course of business and consistent with past practice
regarding cash management;
(iv) license
or royalty agreements, other than off-the-shelf software and agreements with
customers in the ordinary course of business and consistent with past
practice;
(v) guaranty
of indebtedness or liability of any other person or entity;
(vi) lease
or
agreement under which it is lessee of, or holds or operates, any personal
property owned by any other party that involves annual payments of more than
$5,000;
(vii) lease
or
agreement under which it is lessor of or permits any third party to hold or
operate any property, real or personal, owned or controlled by it;
(viii) contract
or group of related contracts with the same party for the purchase by it of
supplies, products, or other personal property or for the furnishing or receipt
of services that involves a sum in excess of $5,000;
16
(ix) contract
that prohibits or purports to prohibit it or any of its affiliates from freely
engaging in business anywhere in the world;
(x) contract
relating to the distribution, marketing, or sale of its products or
services;
(xi) warranty
agreement with respect to products or services sold or licensed, other than
in
the ordinary course of business and consistent with past practice;
(xii) franchise
agreements and license agreements, other than in the ordinary course of business
and consistent with past practice;
(xiii) agreements,
contracts, or understandings pursuant to which it engages independent
contractors and involves a sum in excess of $5,000; or
(xiv) other
agreement material to it, whether or not entered into in the ordinary course
of
business and consistent with past practice.
(b) As
of the
date of this Agreement, except as set forth in schedule 4.19, none of the
Specified Senior Employees has any knowledge of any material breach or
anticipated material breach by any other party to any agreement required to
be
set forth in schedule 4.19.
(c) The
Purchaser has been provided with a true and correct copy of all written
agreements referred to in schedule 4.19, together with all amendments, waivers,
or other changes to those agreements. Schedule 4.19 contains an accurate and
complete description of all material terms of all oral contracts and agreements
referred to in that schedule.
4.20 Disclosure. Except
as
set forth in this Agreement or in a schedule to this Agreement, none of the
Members, Shareholders, or Specified Senior Employees is aware of any material
facts regarding the Companies’ businesses necessary to make the facts required
to be disclosed in this Agreement or in its schedules not
misleading.
5. Representations
and Warranties of the Purchaser.
The
Purchaser represents and warrants to the Members and Shareholders as
follows:
5.1 Authorization
and Enforceability.
The
Purchaser has taken all action necessary to permit it to execute, deliver,
and
perform this Agreement and the Non-Competition Agreement. Each of this Agreement
and the Non-Competition Agreement has been duly executed and delivered by the
Purchaser, and constitutes a valid and binding obligation of the Purchaser,
enforceable against the Purchaser in accordance with its terms, except to the
extent limited by applicable bankruptcy, insolvency, reorganization, moratorium,
and similar laws of general application related to the enforcement of creditor's
rights generally and general principles of equity.
17
5.2 Governmental
Approvals.
The
Purchaser is not required to obtain any order, consent, approval, or
authorization of, or to make any declaration or filing with, any Governmental
Agency in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated by this Agreement, except for
such
order, consent, approval, authorization, declaration, or filing that has been
or
will be obtained or made.
6. Covenants.
(a) Unless
the Members otherwise agree, prior to January 1, 2010:
(i) the
Purchaser shall maintain separate books of account with respect to the Companies
(whether as subsidiaries, divisions, or branches of the Purchaser or its
affiliates) in accordance with past custom and practice as used in the
preparation of the Financial Statements, except to the extent permitted or
required by GAAP;
(ii) except
as
contemplated by this Agreement or the other agreements being entered into in
connection with this Agreement, the Purchaser shall not, and shall not permit
any of its affiliates to, (A) engage in any transactions with the Companies
that
materially affects Revenue or Operating Profit on terms less favorable to them
than could have been obtained in comparable transactions with non-affiliates,
or
(B) cause the Companies, or require the Members or Shareholders to cause the
Companies, to take any action a reasonable man acting in good faith would not
take in furtherance of the Companies’ best interests;
(iii) permit
the Companies to engage in any business other than a business consistent with
the business in which it is currently engaged;
(iv) permit
the Members and their counsel, accountants, and consultants to have reasonable
access during business hours to the Company’s and BQ Labs’ (including the
Branch’s) books and records; and
(v) the
Purchaser shall use all reasonable efforts to cause the Company to obtain and
maintain “key personnel” insurance in accordance with the Consulting
Agreements.
18
(b) (i) The
Members and Shareholders shall use all reasonable efforts to cause the Financial
Statements to be audited (in the case of the Financial Statements as of, and
for
the year ended, December 31, 2006) or reviewed (in the case of the other
Financial Statements), and reported upon, by a firm of independent accountants
reasonably acceptable to the Purchaser on or before June 30, 2007, and shall,
in
any event, cause the Financial Statements so to be audited or reviewed, as
the
case may be, and reported upon, on or before August 31, 2007.
(ii) The
Members and Shareholders shall cause [Name of Firm] (the “Firm”) to complete its
pending transfer pricing study within
60
days of the date of this Agreement, and shall pay, or reimburse the Company
for,
all costs and expenses of the Firm in excess of $20,000.
(iii) The
Members and Shareholders shall use all reasonable efforts to eliminate any
potential liability or obligation referred to in schedule 4.12 (it being
understood and agreed that, if any such potential liability or obligation
remains 90 days after the date of this Agreement, the parties shall promptly
cause the Companies to take all action necessary to eliminate all such potential
liabilities and obligations).
7. Survival
and Indemnification
7.1 Survival.
The
representations and warranties of the parties shall survive the execution and
delivery of this Agreement and the consummation of the transactions contemplated
by this Agreement, regardless of any investigation made by the Purchaser or
on
its behalf. Notwithstanding the foregoing, and except with respect to the
representations and warranties in sections 4.1, 4.2, 4.3, 4.15, 4.16, and 4.17
(the representations and warranties in sections 4.1, 4.2, 4.3, 4.15, 4.16,
and
4.17, collectively, the “Specified Representations and Warranties”), neither the
Members nor the Shareholders shall be liable for a breach of any warranty or
misrepresentation in respect of any representation or warranty in section 4,
unless the Purchaser shall have given the Shareholders notice of a claim
therefor on of before December 31, 2009.
7.2 Indemnification.
Subject
to the limitations of section 7.4 below, the Members and Shareholders (for
purposes of this section 7, the “Indemnitors”) shall jointly and severally
indemnify and hold harmless the Purchaser and its affiliates, officers,
directors, employees, and agents (including, without limitation, those retained
in connection with the transactions contemplated by this Agreement)
(collectively, the "Indemnitees") from and against all actual and threatened
losses, liabilities, damages, and expenses (including attorneys' fees and
expenses) (the "Indemnified Liabilities") as a result of, or arising out of,
or
relating to any breach of warranty or agreement or misrepresentation, by the
Members and Shareholders under this Agreement. The Members and Shareholders
shall reimburse the Indemnitees for the Indemnified Liabilities as such
Indemnified Liabilities are incurred.
19
7.3 Defense
of Claims.
The
Purchaser shall use all reasonable efforts to notify the Members and
Shareholders as promptly as practicable of any claim of which it has actual
knowledge that might reasonably be expected to result in an Indemnified
Liability. Any Indemnitor who wishes to assume the defense of any claim as
to
which indemnity is sought shall so notify the Purchaser not later than 60 days
after it has actual knowledge of the claim, and, after giving such notice,
shall
be entitled to control the defense of the claim, with counsel reasonably
satisfactory to the Purchaser; provided,
that
the Purchaser may participate in such defense at its expense. If the Indemnitor
does not so notify the Purchaser within that 60-day period, the Purchaser shall
assume the defense of the claim, with counsel reasonably satisfactory to the
Indemnitor; provided,
that
the Indemnitor may participate in such defense at its expense. The Purchaser
or
the Indemnitor, in the defense of any such claim, shall not, except with the
consent of the other (which shall not be unreasonably withheld or delayed),
consent to entry of any judgment or entry into any settlement agreement. Each
party shall use reasonable efforts to cooperate with each other party in
connection with the defense of any claim referred to above.
7.4 Limitations. As
used
in this Agreement, the term “Member Group” means either SD and Contrado, on the
one hand, or LE and SeaBreeze, on the other hand. The Members and the
Shareholders shall have no liability or obligation for breaches of warranty
or
misrepresentation in respect of any representation or warranty in section 4
other than the Specified Representations and Warranties, until and unless the
aggregate amount of liability therefor exceeds $25,000. The Member Groups shall
be jointly and severally liable for the initial $400,000 of Indemnified
Liabilities, if any. However, notwithstanding anything to the contrary in this
section 7, the aggregate liability of each Member Group for all breaches of
warranty and misrepresentation in respect of all the representations and
warranties in section 4 other than the Specified Representations and Warranties
shall not exceed $1,000,000.
8. General
8.1 Definitions. For
purposes of this Agreement, the following terms have the indicated
meanings:
"Affiliate"
of a person or entity means any other person or entity that directly, or
indirectly through one or more intermediaries, controls, is controlled by,
or is
under common control with that person or entity.
"Code"
means the Internal Revenue Code of 1986.
"ERISA"
means the Employee Retirement Income Security Act of 1974.
20
"Governmental
Agency" means any federal, state, local, foreign, or other governmental agency,
instrumentality, commission, authority, board, or body.
"Intellectual
Property" means all of the following in any jurisdiction throughout the world:
(a) patents, patent applications, and patent disclosures; (b) trademarks,
service marks, trade dress, trade names, corporate names, logos, and slogans
(and all translations, adaptations, derivations, and combinations of the
foregoing) and Internet domain names, together with all goodwill associated
with
each of the foregoing; (c) copyrights and copyrightable works; (d) registrations
and applications for any of the foregoing; (e) trade secrets, confidential
information, know-how, and inventions; (f) computer software (including, but
not
limited to, source code, executable code, data, databases, and documentation);
and (g) all other intellectual property.
"Permitted
Liens" means (a) liens for taxes not yet due and taxes for which adequate
provision is made in the Current Balance Sheet, (b) purchase money security
interests in supplies and equipment, (c) statutory landlord liens and
precautionary liens filed by lessors with respect to leased equipment, (d)
encumbrances that are not substantial in amount, do not materially detract
from
the value of the property subject to the encumbrance, and do not materially
impair the use of the property subject to the encumbrance or the operation
of
the Companies' businesses, and (e) liens imposed by law arising in the ordinary
course of business, such as materialmen's, mechanics', warehousemen's, and
other
similar, immaterial liens.
"Tax"
means any federal, state, local, or foreign income, gross receipts, license,
payroll, employment, excise, severance, stamp, occupation, premium, windfall
profits, environmental, 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
Returns" 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.
8.2 Successors
and Assigns.
This
Agreement shall inure to the benefit of the parties and their respective
successors and assigns.
21
8.3 Notices.
All
notices, requests, consents, and other communications provided for in this
Agreement shall be in writing and shall be (a) delivered in person,
(b) transmitted by telecopy, (c) sent by first-class, registered or
certified mail, postage prepaid, or (d) sent by reputable overnight courier
service, fees prepaid, to the recipient at the address or telecopy number set
forth below, or such other address or telecopy number as may hereafter be
designated in writing by such recipient. Notices shall be deemed given upon
personal delivery, seven days following deposit in the mail as set forth above,
upon acknowledgment by the receiving telecopier or one day following deposit
with an overnight courier service.
If
to a
Member or Shareholder, to that party at:
his
or
its last address reflected in the Companies’ records
If
to the
Purchaser, to it at:
8
Maskit
Xxxxxx
X.X.
Xxx
0000
Xxxxxxxx
00000
Xxxxxx
Facsimile:
972-9-9526111
Attention:
Chief Financial Officer
with
a
copy to:
Xxxxxx
X.
Xxxxxx, Esq.
00
Xxxxxxxxxx Xxxxx
Xxxxx
Xxxxx
Xxx
Xxxx,
XX 00000
Facsimile:
(000) 000-0000
8.4 Fees
and Expenses.
Each
party shall bear that party’s own fees and expenses in connection with the
preparation and negotiation of this Agreement and the transactions contemplated
by this Agreement. In that connection, the Members and Shareholders shall bear
all the costs and expenses of the Companies in connection with the preparation
and negotiation of this Agreement and the transactions contemplated by this
Agreement (including, without limitation, all costs and expenses of accountants
and others in connection with the fulfillment of the obligations under section
6(b)).
8.5 Amendment
and Waiver.
No
amendment of any provision of this Agreement shall be effective, unless it
is in
writing and signed by the party to be charged. Any failure of a party to comply
with any provision of this Agreement may only be waived in writing by the
parties affected. No such waiver shall operate as a waiver of, or estoppel
with
respect to, any subsequent or other failure. No failure by any party to take
any
action against any breach of this Agreement or default by any other party shall
constitute a waiver of that party's right to enforce any provision of this
Agreement or to take any such action.
22
8.6 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but both of which together shall constitute one
agreement.
8.7 Headings.
The
headings of the various sections of this Agreement have been inserted for
reference only and shall not be deemed to be a part of this
Agreement.
8.8 Governing
Law. This
Agreement shall be governed by and construed in accordance with the law of
the
state of New York applicable to agreements made and to be performed wholly
in
New York.
8.9 Consent
to Jurisdiction. The
parties irrevocably submit to the exclusive jurisdiction of the North Carolina
state courts located in Raleigh, North Carolina and the United States courts
located in North Carolina for the purposes of any action, suit, or proceeding
arising out of this Agreement or any transaction contemplated by this Agreement
(and agree not to commence any such action, suit, or proceeding except in such
courts). The parties further agree that service of any process, summons, notice,
or document hand delivered or sent in accordance with section 8.3 shall be
effective service of process for any action, suit, or proceeding in North
Carolina with respect to any matters to which it or he has submitted to
jurisdiction as set forth in the immediately preceding sentence. The parties
irrevocably and unconditionally waive any objection to the laying of venue
of
any action, suit, or proceeding referred to above in any of the courts referred
to above, and hereby further irrevocably and unconditionally waive and agree
not
to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum.
8.10 No
Third Party Beneficiaries.
Nothing
in this Agreement is intended or shall be construed to confer upon any person
or
entity other than the Indemnitees referred to in section 7.2 and the parties
to
this Agreement and their successors or assigns pursuant any rights or remedies
under or by reason of this Agreement.
23
8.12 Entire
Agreement.
This
Agreement and the other agreements executed and delivered in connection with
this Agreement constitute the entire agreement among the parties with respect
to
their subject matter and supersede all prior arrangements or understandings
among them.
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MEMBERS:
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| /s/Xxxxxx Xxxxxxxxxxx | |
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Xxxxxx
Xxxxxxxxxxx
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| /s/Xxxxxx Xxxxxx | |
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Xxxxxx
Xxxxxx
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SHAREHOLDERS:
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CONTRADO
PARTNERS, LLC
|
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By:
|
/s/Xxxxxx Xxxxxxxxxxx |
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Name:
Xxxxxx Xxxxxxxxxxx
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Title:
Managing Member
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SEABREEZE
PARTNERS, LLC
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By:
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/s/Xxxxxx Xxxxxx |
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Name:
Xxxxxx Xxxxxx
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Title:
Managing Member
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By:
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/s/Xxxx Xxxxxx |
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Name:
Xxxx Xxxxxx
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Title:
CEO
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25
