Exhibit 99.2
ASSET PURCHASE AGREEMENT
by and between
BEACON INFORMATION TECHNOLOGIES, INC.,
AND
JUDGE TECHNICAL SERVICES, INC.
TABLE OF CONTENTS
Page
SECTION 1. DEFINITIONS......................................................................................1
SECTION 2. ACQUISITION OF ASSETS............................................................................2
2.1 Sale and Purchase of Assets......................................................................2
2.2 Excluded Assets..................................................................................2
2.3 Assumption of Liabilities........................................................................2
2.4 Consents.........................................................................................3
SECTION 3. PURCHASE AND SALE................................................................................3
3.1 Purchase Price...................................................................................3
3.2 Allocation of Consideration......................................................................4
3.3 Closing Costs....................................................................................4
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER.........................................................4
4.1 Organization and Good Standing...................................................................4
4.2 Power and Authorization..........................................................................4
4.3 No Violation of Corporate Documents..............................................................5
4.4 Brokers..........................................................................................5
4.5 Title; Liens.....................................................................................5
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BUYER..........................................................5
5.1 Organization and Good Standing...................................................................5
5.2 Power and Authorization..........................................................................5
5.3 No Conflicts.....................................................................................5
5.4 Brokers..........................................................................................6
SECTION 6. CLOSING..........................................................................................7
6.1 Time and Place of Closing........................................................................7
6.2 Remittance of Payments...........................................................................7
SECTION 7. EMPLOYEE BENEFITS AND EMPLOYMENT.................................................................7
7.1 Employment.......................................................................................7
7.2 Employee Pension and Welfare Benefit Plans.......................................................8
7.3 Vacation and Holidays............................................................................8
7.4 Reporting and Disclosure Requirements............................................................8
7.5 Employee Records.................................................................................8
SECTION 8. MISCELLANEOUS....................................................................................8
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TABLE OF CONTENTS
(continued)
Page
8.1 Survival of Representations and Warranties.......................................................8
8.2 Further Assurances...............................................................................8
8.3 Costs and Expenses...............................................................................8
8.4 Acknowledgment of Warranty Disclaimer............................................................9
8.5 Public Announcements.............................................................................9
8.6 Notices.........................................................................................10
8.7 Assignment and Benefit..........................................................................10
8.8 Amendment, Modification and Waiver..............................................................10
8.9 Governing Law; Consent to Jurisdiction..........................................................10
8.10 Section Headings and Defined Terms..............................................................11
8.11 Invalidity/Severability.........................................................................11
8.12 Counterparts....................................................................................11
8.13 Entire Agreement................................................................................11
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is dated as of
September 1, 2002 by and among Beacon Information Technologies, Inc., a Illinois
corporation ("Seller"), and Judge Technical Services, Inc., a Delaware
corporation ("Buyer"). An index of defined terms is attached as an appendix
hereto. Buyer and Seller are collectively referred to herein as the "Parties".
BACKGROUND
The Parties desire to provide for, among other things, the acquisition
by Buyer from Seller and the sale by Seller to Buyer of the Assets (as defined
below) relating to the client list of Seller's technical placement business (the
"Client List") upon the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual representations, warranties, covenants and agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
SECTION 1. DEFINITIONS.
As used herein, the following definitions shall apply and shall govern
interpretation of this Agreement:
1.1 Client List - The "Client List" being purchased pursuant to this
Asset Purchase Agreement shall be defined to mean a list of current clients
serviced by Seller. Said list of clients is attached hereto at Schedule 1.1.
1.2 Sales Spread - As used herein, "Sales Spread" shall be defined as
net revenues less direct labor less per diems less any discounts or returns.
1.3 Gross Profit - As used herein, "Gross Profit" for W-2 and bench
employees shall mean net revenues less direct labor cost less payroll taxes of
nine percent less per diems. The formula for determining the Gross Profit shall
be as follows:
Net Revenues
- Direct Labor (W-2 Payroll)
- Payroll Tax (DL x 0.09)
- Per Diem
- Independent Consultant Payroll
---------------------------------
= Staffing Gross Profit
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SECTION 2. ACQUISITION OF ASSETS.
2.1 Sale and Purchase of Assets.
Upon the terms and subject to the conditions of this Agreement, at the
Closing (as hereinafter defined), Seller shall sell, transfer and deliver to
Buyer the Assets (as defined below) and Buyer shall purchase the Assets from
Seller for the consideration set forth in Section 2 hereof. As used herein the
term "Assets" shall mean those certain assets set forth below owned by Seller,
and used, useful or intended to be used in the operation of the Business, as of
the date of this Agreement:
(a) Active Client List;
(b) Goodwill;
(c) Trade secrets (including but not limited to all results of research
and development), trade names, trademarks, service-marks, copyrights, trademark
registrations and applications, service xxxx registrations and applications,
copyright registrations and applications and rights-to-use (collectively
"Intellectual Property");
(d) Copies of all books and records predominately relating to the
Business and the Assets (including such books and records as are contained in
computerized storage media), including all, accounting, sales, export, import,
manufacturing, marketing, banking and shipping records and all files,
contractor, consultant, customer/client and supplier lists, records, literature
and correspondence, and marketing materials excluding tax returns;
(e) To the extent assignable, all permits, licenses and authorizations
("Authorizations") associated with the Seller's Business and its operations; and
(f) All intangible assets and goodwill associated with the Seller's
Business and its operations.
2.2 Excluded Assets.
The Assets being sold, assigned, and transferred to Buyer hereunder do not
include:
(a) Cash and cash equivalents;
(b) Accounts receivable accrued up through and including August 31,
2002;
(c) Any name or xxxx which includes "Beacon";
(d) Any rights, claims or counterclaims against third parties, and any
rights under this Agreement, or the Transaction Documents, as defined therein;
(e) Lease to the premises located at 000 X. Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, XX and any furniture, office equipment, or other inventory
located therein; or
(f) Any other assets not specifically referred to in Section 1.1 above
(collectively, the "Excluded Assets").
2.3 Assumption of Liabilities.
Buyer will not assume, claims, obligations, or commitments ("Liabilities") of
Seller (the "Assumed Liabilities") relating to the Business, including, but not
limited to, the following:
(a) Unfunded pension liabilities;
(b) Federal or other taxes;
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(c) Products liability, tort claims, or other litigation arising prior
to or based on events that occurred prior to September 1, 2002;
(d) Undisclosed liabilities;
(e) Accounts payable of Seller relating to or arising out of the
operation of the Business prior to September 1, 2002;
(f) Vacation, severance and similar employment liabilities and
liabilities under employee benefit plans arising prior to September 1, 2002; and
(g) Any other liabilities arising before the date of the closing.
2.4 Consents.
Notwithstanding anything in this Agreement to the contrary, if any Contract or
Authorization included in the Assets may not be transferred without the consent,
approval or waiver ("Consent") of a third party (including, without limitation,
any governmental authority) and such transfer or attempted transfer would
constitute a breach thereof or a violation of any law, nothing in this Agreement
or any Transaction Document shall constitute a transfer or attempted transfer
thereof. Buyer will use its best efforts to obtain each such Consent before or
as soon as possible after the Closing Date, but to the extent not obtained,
Seller and Buyer shall cooperate (a) in endeavoring to obtain such Consent
promptly, and (b) if any such Consent is unobtainable, in any reasonable
arrangement so that Buyer has all of the benefits and assumes all of the
liabilities and obligations under any such Contract or Authorization as if such
Contract and Authorization had been duly assigned to Buyer.
SECTION 3. PURCHASE AND SALE.
3.1 Purchase Price.
Total consideration for the Assets acquired shall be paid as set forth herein:
(a) Buyer shall pay to Seller the amount of six thousand seven hundred
($6700) upon the execution of this Asset Purchase Agreement;
(b) Buyer shall also pay to Seller six monthly payments of $5,000
starting October 15, 2002;
(c) In addition, Buyer will pay Seller up to four monthly payments of
three thousand six hundred eighty dollars ($3680) starting October 15, 2002
provided that the previous month's weekly average Gross Profit for contract
staffing from Seller's clients is above $5,000. Holiday weeks, as defined in the
Judge employee handbook, shall not be included in said calculation.
(d) Beginning March 31, 2003, Buyer shall begin payments to Seller
representing the potential remaining payout for the client list, which shall be
not greater than $125,000 if it is to be paid. Said potential payment shall be
made monthly at a rate to be determined based on the previous four week average
staffing gross profit, as follows:
(i) If the four week average staffing gross profit from Seller's client
list is less than eight thousand dollars ($8,000) in any month, no payment shall
be made.
(ii) If the four week average staffing gross profit from Seller's
client list is greater than eight thousand dollars ($8,000) but less than twelve
thousand dollars ($12,000) Buyer shall pay Seller five thousand dollars
($5,000).
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(iii) If the four week average staffing gross profit from Seller's
client list is greater than twelve thousand dollars ($12,000) but less than
eighteen thousand dollars ($18,000) Buyer shall pay Seller twelve thousand
dollars ($12,000).
(iv) If the four week average staffing gross profit from Seller's
client list is greater than eighteen thousand dollars ($18,000) Buyer shall pay
Seller twenty five thousand dollars ($25,000).
(v) Holiday weeks shall not be included in the above calculations.
The above-listed average Gross Profit amounts assume a two person contract
staffing office. Any additional headcount will increase the Gross Profit targets
by twenty five hundred dollars ($2500) per week per person. Such target shall
not be increased until the end of the first full calendar month of the new
employee's employment.
(e) Seller shall received targeted bonus payments fully set forth in
Schedule 2.1(e) attached hereto.
3.2 Allocation of Consideration.
The consideration for the Assets shall be allocated to Seller as set forth in
Schedule 2.2. Seller and Buyer shall prepare their respective federal, state and
local tax returns and reports employing the allocation made pursuant to this
Section and shall not take a position in any tax proceeding or audit or
otherwise that is inconsistent with such allocation; provided, that nothing
contained herein shall require Seller or Buyer to contest, beyond the exhaustion
of its administrative remedies before any taxing authority or agency, and Seller
and Buyer shall not be required to litigate before any court, including, without
limitation, the United States Tax Court, any proposed deficiency or adjustment
by any taxing authority or agency that challenges such allocation. Seller and
Buyer shall give prompt notice to each other promptly upon becoming aware of the
commencement or threat of any tax audit or the threatened assertion of any
proposed deficiency or adjustment by any tax authority or agency that challenges
such allocation.
3.3 Closing Costs.
Buyer shall be responsible for the payment of all the costs and expenses
attributable to (a) all documentary, use, filing, sales and other taxes and fees
due or payable as a result of the transfer and delivery of the Assets from
Seller to Buyer, and (b) all of its attorney, consultant and other fees and any
and all other expenses contemplated to be paid by Buyer under this Agreement and
the other agreements, documents and instruments related hereto (this Agreement
and such related agreements, documents and instruments, collectively, the
"Transaction Documents"). Seller shall be responsible for the payment of all
costs and expenses attributable to all of its attorney, consultant and other
fees and any and all other expenses contemplated to be paid by Seller under this
Agreement and the Transaction Documents.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to Buyer as of the date of this
Agreement and as of the Closing Date as follows (except, in each case, to the
extent Buyer has knowledge or belief that any such representation and/or
warranty is incorrect as a result of Buyer's due diligence, or Buyer's
familiarity with the Business or otherwise):
4.1 Organization and Good Standing.
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Illinois.
4.2 Power and Authorization.
Seller has the corporate power and authority to enter into and perform its
obligations under this Agreement and under the other agreements and documents
required to be delivered by Seller prior to or at the Closing in connection
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herewith (such agreements and documents, collectively, the "Seller Transaction
Documents"). The execution, delivery and performance by Seller of this Agreement
and the Seller Transaction Documents have been duly authorized by all necessary
corporate action. This Agreement has been duly and validly executed and
delivered by Seller and constitutes a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with the terms hereof. When
executed and delivered as contemplated herein, each of the Seller Transaction
Documents shall constitute the legal, valid and binding obligation of Seller,
enforceable against Seller in accordance with the terms thereof.
4.3 No Violation of Corporate Documents.
The execution, delivery and performance by Seller of this Agreement and the
Seller Transaction Documents do not and will not (with or without the passage of
time or the giving of notice) violate or conflict with the certificate of
incorporation or bylaws of Seller.
4.4 Brokers.
No person acting on behalf of Seller or any of Seller's affiliates or under the
authority of any of the foregoing, is or will be entitled to any brokers' or
finders' fee or any other commission or similar fee, directly or indirectly,
from any of the parties in connection with any of the transactions contemplated
by this Agreement.
4.5 Title; Liens.
Seller has such title to the Assets which it sells to Buyer free and clear of
all liens, pledges, charges, claims, encumbrances, proscriptions, restrictions,
conditions, covenants, and easements of any kind ("Liens").
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants to Seller as of the date of this
Agreement and as of the Closing Date as follows:
5.1 Organization and Good Standing.
Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the state of Delaware, and has all necessary power and
authority to carry on its business as presently conducted, to own and lease the
assets which it owns and leases and to perform all its obligations under each
agreement and instrument by which it is bound.
5.2 Power and Authorization.
Buyer has full legal right, power and authority to enter into and perform its
obligations under this Agreement and under the other agreements, documents and
instruments (collectively, the "Buyer Transaction Documents") required to be
delivered by it prior to or at the Closing.
5.3 No Conflicts.
(a) The execution, delivery and performance of this Agreement and the
Buyer Transaction Documents do not and will not (with or without the passage of
time or the giving of notice):
(i) violate or conflict with Buyer's certificate or articles of
formation or organization or partnership agreement any statute, law, regulation,
permit, license, or certificate, or any judgment, order, award or other decision
or requirement of any arbitrator, court, government or governmental agency or
instrumentality (domestic or foreign) binding upon Buyer or Buyer's properties
or assets (such statutes, laws, regulations, permits, licenses, certificates,
judgments, orders, awards and other decisions or requirements, collectively,
"Laws"); or
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(ii) violate or conflict with, result in a breach of, or constitute a
default or otherwise cause any loss of benefit under, any material agreement or
other material obligation to which Buyer is a party.
(b) No consents or approvals of, or registrations, notifications,
filings and/or declarations with, any court, government or governmental agency
or instrumentality, creditor, lessor or other person or entity are required to
be given or made by Buyer in connection with the execution, delivery and
performance of this Agreement and the other agreements, documents and
instruments contemplated herein, other than such as have been obtained or made
and are in full force and effect.
(c) There are no actions, proceedings or investigations pending or, to
the knowledge of Buyer, threatened, that question any of the transactions
contemplated by, or the validity of, this Agreement or any of the other
Transaction Documents or which, if adversely determined, could reasonably be
expected to have an adverse affect upon the ability of Buyer or Seller to enter
into or perform its respective obligations under this Agreement or any of the
other Transaction Documents. Buyer has not, on behalf of itself or Seller,
received any request from any governmental agency or instrumentality for
information with respect to the transactions contemplated hereby.
5.4 Brokers.
No person acting on behalf of Buyer or any of its affiliates or under the
authority of any of the foregoing is or will be entitled to any brokers' or
finders' fee or any other commission or similar fee, directly or indirectly,
from any of the parties in connection with any of the transactions contemplated
by this Agreement.
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SECTION 6. CLOSING.
6.1 Time and Place of Closing.
The closing of the purchase and sale of the Assets (the "Closing") pursuant to
this Agreement shall take place at 10:00 a.m. on September __, 2002 (such date,
the "Closing Date"), effective as of the close of business on August 31, 2002,
and shall take place via facsimile at the respective offices of the Parties.
6.2 Remittance of Payments.
From and after the Closing, Seller shall immediately remit to Buyer, in the
amount received, any payments that it or any affiliate may receive (such as
payments of accounts receivable) which properly belong to Buyer.
SECTION 7. EMPLOYEE BENEFITS AND EMPLOYMENT.
7.1 Employment.
(a) Employment Contract for Xxx Xxxxxxx.
(i) Buyer will offer a one year employment contract to
Xxx Xxxxxxx.
Xxx Xxxxxxx shall be hired at a rate of $75,000 as an annualized rate
of pay. He shall also receive a $600 per month car allowance and four percent
(4%) of sales spread. In addition, he shall be eligible to receive targeted
bonus payments as set forth at Schedule 2.1(e).
(b) Employment Contract for Xxxxxxxxx Xxxxxx
(i) Buyer will offer a one year employment contract to
Xxxxxxxxx Xxxxxx.
(ii) Xxxxxxxxx Xxxxxx shall be hired at a rate of $50,000
as an annualized rate of pay. She shall also receive
three percent (3%) of sales spread.
(c) Terms of Employment Contracts - The terms of the
employment contract shall be attached at Schedule 7.1. Said Employment Contracts
shall include a binding Non-Competition Agreement that shall prevent the
employees for two years following separation from Buyer from contacting clients
of Buyer to whom employees were introduced during their tenure at Seller and
from contacting any clients of Seller who were clients prior to or during
employees' employment with Buyer.
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7.2 Employee Pension and Welfare Benefit Plans.
Buyer assumes no responsibility with respect to any Employee Pension Benefit
Plan or other Welfare Benefit Plans currently provided to Seller's employees. On
the date of execution of this Agreement, Seller's employees shall have access to
the Pension and other Benefit Plans and under the terms currently provided by
Buyer to Buyer's employees. Seller's employees, including Xxx Xxxxxxx, shall be
eligible to participate in the Buyer's health and dental plans effective
November 1, 2002. From the date of closing through and including October 31,
2002, Buyer shall reimburse Seller's benefitted employees at the same rate that
Seller currently reimburses them. Buyer shall reimburse Xxx Xxxxxxx $570.37 per
month for his current benefits until October 31, 2002.
7.3 Vacation and Holidays.
Buyer will provide to the Transferred Employees the same vacations and holidays
as provided by Buyer to its current employees. No credit shall be given to
transferred employees for vacation accrued during service to Seller.
7.4 Reporting and Disclosure Requirements.
Seller shall be responsible for filing all annual reports and satisfying all
other reporting and disclosure requirements with respect to any Employee Benefit
Plan for all Plan Years ending prior to the Closing Date.
7.5 Employee Records
Buyer shall grant Seller full access to all employee records relating to the
Transferred Employees, including but not limited to personnel files.
SECTION 8. MISCELLANEOUS.
8.1 Survival of Representations and Warranties.
The representations and warranties made by the parties in this Agreement and in
the certificates, documents and schedules delivered pursuant hereto shall
survive the consummation of the transactions herein contemplated.
8.2 Further Assurances.
Each party hereto shall use commercially reasonable efforts to comply with all
requirements imposed hereby on such party and to cause the transactions
contemplated hereby to be consummated as contemplated hereby and shall, from
time to time and without further consideration, either before or after the
Closing, execute such further instruments and take such other actions as any
other party hereto shall reasonably request in order to fulfill its obligations
under this Agreement and to effectuate the purposes of this Agreement and to
provide for the orderly and efficient transition of the ownership of the Assets
to, and the assumption of the Assumed Liabilities by, Buyer. Each party shall
promptly notify the other party of any event or circumstance known to such party
that could prevent or delay the consummation of the transactions contemplated
hereby or which would indicate a breach or non-compliance with any of the terms,
conditions, representations, warranties or agreements of any of the parties to
this Agreement.
8.3 Costs and Expenses.
Except as otherwise expressly provided herein, each party shall bear its own
expenses in connection herewith.
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8.4 Acknowledgment of Warranty Disclaimer.
Buyer acknowledges and agrees that
(a) Buyer has had full access to the assets, properties (real
and personal, owned and leased), permits, licenses, agreements, instruments,
documents and other contracts (oral and written), and the books and records
related to the Business and has had full opportunity to inspect the same;
(b) Buyer has decided to acquire the Assets based upon such
access and inspection and the representations, warranties and covenants of
Seller specifically made in this Agreement;
(c) accordingly the representations made by Seller in Section
3 hereof are the sole representations and warranties made by Seller with respect
to itself, its assets and its liabilities and obligations, AND SELLER MAKES NO
OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR
IMPLIED, EITHER HEREIN OR OTHERWISE, AS TO THE ASSETS, PROPERTIES (REAL AND
PERSONAL, OWNED AND LEASED), AGREEMENTS, INSTRUMENTS, DOCUMENTS AND OTHER
CONTRACTS (ORAL AND WRITTEN), LIABILITIES AND/OR BUSINESS OF SELLER OR AS TO,
THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY OTHER MATTER PERTAINING TO ANY OF
THE FOREGOING;
(d) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER
DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE
CONDITION OF THE ASSETS, PROPERTIES (REAL AND PERSONAL, OWNED AND LEASED),
AGREEMENTS, INSTRUMENTS, DOCUMENTS AND OTHER CONTRACTS (ORAL AND WRITTEN ),
BUSINESS, AND BUSINESS PROSPECTS OF SELLER, INCLUDING, WITHOUT LIMITATION, THE
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE;
and
(e) in furtherance and not limitation of the foregoing, Seller
makes no representation that Seller has, or that Buyer will have, all the
licenses, permits or other Authorizations or contracts required to carry on the
operation of the Business or that any of such licenses or permits or other
Authorizations or contracts are transferable, and Buyer shall be responsible for
all such matters.
Except as and to the extent set forth in this Agreement and the
certificates and schedules delivered under this Agreement, the Seller hereby
disclaims all liability and responsibility for any statement or information made
or communicated in any way to the Buyer or any agent, employee or representative
thereof (including, without limitation, any opinion, information or advice
provided by any officer, director, employee, agent, consultant or other
representative of Seller or any affiliate of the Seller), and the Buyer
acknowledges such disclaimer. No representation or warranty contained in Section
3 shall be deemed to be untrue to the extent that Buyer had knowledge on the
date hereof that such representation or warranty was not correct as stated
herein or, after the date hereof and on or before the Closing Date, gave prior
approval to an act of the Seller or one of its subsidiaries which caused such
representation or warranty to be incorrect as stated herein.
8.5 Public Announcements.
Prior to the Closing, neither Seller nor Buyer shall make any public
announcement or disclosure relating to the transactions contemplated herein
without the prior agreement of the other party hereto, provided that each party
shall use its best efforts to consult with the other in advance of any
disclosure required by law, but in such case the agreement of the other party
hereto shall not be required.
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8.6 Notices.
All notices or other communications permitted or required under this Agreement
shall be in writing and shall be sufficiently given if and when hand delivered
to the persons set forth below or if sent by documented overnight delivery
service or registered or certified mail, postage prepaid, return receipt
requested, or by telegram, telex or telecopy, receipt acknowledged, addressed as
set forth below or to such other person or persons and/or at such other address
or addresses as shall be furnished in writing by any party hereto to the others.
Any such notice or communication shall be deemed to have been given as of the
date received, in the case of personal delivery, or on the date shown on the
receipt or confirmation therefor in all other cases.
To Seller:
Xxx Xxxxxxx
Beacon Information Technologies, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
To Buyer:
Judge Technical Services, Inc.
0 Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxxx
8.7 Assignment and Benefit.
(a) No party shall assign this Agreement or any rights
hereunder, or delegate any obligations hereunder, without prior written consent
of the other party hereto. Subject to the foregoing, this Agreement and the
rights and obligations set forth herein shall inure to the benefit of, and be
binding upon, the parties hereto, and each of their respective successors and
assigns.
(b) This Agreement shall not be construed as giving any
person, other than the parties hereto and their permitted successors and
assigns, any legal or equitable right, remedy or claim under or in respect of
this Agreement or any of the provisions herein contained, this Agreement and all
provisions and conditions hereof being intended to be, and being, for the sole
and exclusive benefit of such parties, and permitted successors and assigns and
for the benefit of no other person or entity.
8.8 Amendment, Modification and Waiver.
The parties may amend or modify this Agreement in any respect, provided that any
such amendment shall be in writing. The waiver by a party of any breach of any
provision of this Agreement shall not constitute or operate as a waiver of any
other breach of such provision or of any other provision hereof, nor shall any
failure to enforce any provision hereof operate as a waiver of such provision or
of any other provision hereof.
8.9 Governing Law; Consent to Jurisdiction.
This Agreement is made pursuant to, and shall be construed and enforced in
accordance with, the internal laws of the State of Illinois (and United States
federal law, to the extent applicable), irrespective of the principal place of
business, residence or domicile of the parties hereto, and without giving effect
to otherwise applicable principles of conflicts of law. Buyer and Seller agree
that any legal action, suit or proceeding arising out of or relating to this
Agreement shall be instituted in a court in the jurisdiction of the Defendant
and each party waives any objection which such party may now or hereafter have
to the laying of the venue of any such action, suit or proceeding in, and
irrevocably submits to the jurisdiction of, any such court. Any and all service
of process and any other notice in any such action, suit or proceeding shall be
made by certified or registered mail, or by a nationally recognized overnight
courier, directed to the Seller or Buyer, as the case may be, at the address
provided for herein, and shall be effective against any party if given as
provided herein. Nothing herein contained shall be deemed to affect the right of
any party to serve process in any other manner permitted by law.
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8.10 Section Headings and Defined Terms.
The section headings contained herein are for reference purposes only and shall
not in any way affect the meaning and interpretation of this Agreement. The
terms defined herein and in any agreement executed in connection herewith
include the plural as well as the singular and the singular as well as the
plural, and the use of masculine pronouns shall include the feminine and neuter.
Except as otherwise indicated, all agreements defined herein refer to the same
as from time to time amended or supplemented or the terms thereof waived or
modified in accordance herewith and therewith.
8.11 Invalidity/Severability.
The invalidity or unenforceability of this Agreement or any particular
provision, or part of any provision, of this Agreement in one jurisdiction shall
not affect the validity or enforceability of this Agreement or any particular
provision or part of any provision of this Agreement in any other jurisdiction
and the invalidity or unenforceability of any particular provision or part of
any provision shall not affect the other provisions or parts hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provisions or parts were omitted.
8.12 Counterparts.
This Agreement may be executed in two or more counterparts, each of which shall
be deemed an original; and any person may become a party hereto by executing a
counterpart hereof, but all of such counterparts together shall be deemed to be
one and the same instrument. It shall not be necessary in making proof of this
Agreement or any counterpart hereof to produce or account for any of the other
counterparts.
8.13 Entire Agreement.
This Agreement, together with the agreements, exhibits, schedules and
certificates referred to herein or delivered pursuant hereto, constitutes the
entire agreement between the parties hereto with respect to the purchase and
sale of the Assets and the assumption of the Assumed Liabilities and supersedes
all prior agreements and understandings. The submission of a draft of this
Agreement or portions or summaries thereof does not constitute an offer to
purchase or sell the Assets, it being understood and agreed that neither Buyer
nor Seller shall be legally obligated with respect to such a purchase or sale or
to any other terms or conditions set forth in such draft or portion or summary
unless and until this Agreement has been duly executed and delivered by all
parties. Buyer's rights and remedies with respect to the transactions
contemplated by this Agreement and the other Transaction Documents shall be
controlled by and subject to the provisions of this Agreement, and Buyer shall
have no other rights or remedies except as set forth in this Agreement.
-11-
IN WITNESS WHEREOF, each of the parties hereto has duly
executed this Asset Purchase Agreement, under seal, all as of the date first
above written.
Attest BEACON INFORMATION TECHNOLOGIES, INC.
By: /s/ Xxx Xxxxxxx
------------------------ ---------------------------------
Name: Xxx Xxxxxxx
Title: Principal
[Seal] Date: September 6, 2002
-------------------------------
Attest JUDGE TECHNICAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx.
------------------------ -------------------------------
Xxxxxx X. Xxxxxxxxxxxx
Chief Financial Officer
[Seal] Date: September 6, 2002
-------------------------------
-12-
LIST OF SCHEDULES
-----------------
Schedule 1.1 Client List
Schedule 2.1(e) Bonus Targets and Payment Schedule
Schedule 2.2 Allocation of Consideration
Schedule 7.1 Employment Contracts for Xxx Xxxxxxx and Xxxxxxxxx Xxxxxx
Schedule 1.1
------------
CLIENT LIST
-----------
-1-
Schedule 2.1(e)
---------------
BONUS TARGETS AND PAYMENT SCHEDULE
----------------------------------
-2-
Chicago
Target Gross Profit and Bonus Structure
Note: 1 Gross Profits targets are for the Chicago IT Contract
Placement Division.
2 Targets must be met to obtain bonus.
3 Only one level of bonus is payable per quarter if target
is achieved.
4 Bonuses will be paid to Beacon.
5 If a bonus is earned, it will be
paid within 30 days after the
respective quarter's sales have
been collected.
Fiscal Safety -Target 1 Qtr. GP Bonus Baseline Bonus Target 3 Bonus @ T3 Target 4 Bonus Total $
Qtr.End @ T1 -Target 2 @ T2 Qtr. GP Qtr. GP @ T4
Qtr. GP
9/1/2002 Start w/ Judge; 7000 GP N/A N/A N/A N/A
10/31/2002 Oct. weekly GP avg 10k 10,000 Same as 10,000 Same as 10,000 Same as 10,000
(highest 3 wks in Oct.) T1 T1 T1
12/31/2002 153,000 10,000 168,300 25,000 204,000 40,000 204,000 40,000
3/31/2003 168,300 12,500 204,000 40,000 255,000 60,000 285,600 75,000
6/30/2003 204,000 20,000 255,000 50,000 306,000 70,000 357,000 90,000
9/30/2003 255,000 30,000 285,600 65,000 331,500 80,000 377,400 100,000
12/31/2003 285,600 35,000 318,240 75,000 357,000 90,000 397,800 110,000
------------------------------------------------------------------------------------------------------------------------------------
Pmts @ T1 117,500 $117,500.00
------------------------------------------------------------------------------------------------------------------------------------
Pmts @ T2 265,000 $265,000.00
------------------------------------------------------------------------------------------------------------------------------------
Pmts @ T3 350,000 $350,000.00
------------------------------------------------------------------------------------------------------------------------------------
Pmts @ T4 425,000 $425,000.00
------------------------------------------------------------------------------------------------------------------------------------
-1-
Schedule 2.2
------------
ALLOCATION OF CONSIDERATION
---------------------------
-2-
Schedule 7.1
EMPLOYMENT CONTRACTS FOR XXX XXXXXXX AND XXXXXXXXX XXXXXX
----------------------------------------------------------
-3-
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT dated as of September 1, 2002, between JUDGE
TECHNICAL SERVICES, INC. ("Company") and Xxx Xxxxxxx ("Executive").
BACKGROUND
----------
The Company is a Delaware corporation engaged in the business of contract
placement in the IT, Food, Pharmaceutical, Biosciences, Engineering, and
Distribution businesses.
Executive has substantial business experience and talents in the area
of contract placement. Pursuant to the Asset Purchase Agreement By and Between
Beacon Information Technologies and Company, Company wishes to employ Executive
on the terms and conditions set forth in this Agreement.
Pursuant to the foregoing, Company desires to employ Executive, and
Executive desires to enter into the employ of Company, on the terms and
conditions contained in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and intending, to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1. CAPACITY AND DUTIES
1.1 Employment; Acceptance of Employment. Company hereby employs
Executive and Executive hereby accepts employment by Company for the period and
upon the terms and conditions hereinafter set forth.
1.2 Capacity and Duties.
(a) Executive shall be principally employed by Company as the
Sales Manager for the Contract Placement division of Company's Chicago office,
and shall perform such duties and have such authority consistent with his
position as may from time to time be specified by the President of the Company.
Executive shall report directly to the President and shall perform his duties
for Company principally from Company's office located at 0000 Xxxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxx (the "Chicago office"), except for periodic
travel that may be necessary or appropriate in connection with the performance
of Executive's duties hereunder.
(b) Executive shall devote his full working time, energy,
skill and best efforts to the performance of his duties hereunder, in a manner
which will faithfully and diligently further the business and interests of
Company and its affiliates (as defined below), and shall not be employed by or
participate or engage in or be a part of in any manner the management or
operation of any business enterprise other than Company and its affiliates
without the prior written consent of the President, which consent may be granted
or withheld in her sole discretion. For the purposes of this definition
"affiliate" means any person or entity which is a subsidiary of or controlled
by, or under common control with, the Company
(c) Executive, without the express consent of President, shall
have no actual, apparent or implied authority to pledge the credit of Company;
bind Company under any contract, note, mortgage or other agreement outside the
ordinary course of Company's business; release or discharge any debt due
Company; or sell, mortgage, transfer or otherwise dispose of any assets of
Company.
-4-
SECTION 2. TERM OF EMPLOYMENT
2.1 Term. The initial term of Executive's employment hereunder shall be
one (1) year commencing on the date hereof and shall thereafter automatically
terminate. Thereafter, at the mutual will of both parties, Executive shall
remain employed as an employee at will, whose employment may be terminated by
either party.
SECTION 3. COMPENSATION
3.1 Basic Compensation. As compensation for Executive's services
hereunder, Company shall pay to Executive a salary at the annual rate of $75,000
(the "Base Salary"), payable in bi-weekly installments in accordance with
Company's regular payroll practices in effect from time to time for the first
year during the term of Executive's employment, and for each subsequent year a
salary at such higher annual rate as the Board shall from time to time determine
in its sole discretion.
3.2 Performance Bonus. During the Term of this Agreement, in the sole
discretion of the President, Executive shall be entitled to receive an annual
performance bonus in accordance with the Bonus Program negotiated by the parties
pursuant to the Asset Purchase Agreement, provided that Executive has met or
exceeded net profit or other performance goals established by such program.
3.3 Spread. In addition to the base salary, Executive shall be entitled
to receive four percent (4%) of his individual weekly spread.
3.4 Executive Benefits. In addition to the compensation provided for in
Sections 3.1, 3.2 and 3.3, Executive shall be entitled during the term of his
employment to participate in Company's medical and 401(k) plans and such other
of Company's employee benefit plans and benefit programs as may from time to
time be provided for other employees of Company whose duties, responsibilities,
and compensation are reasonably comparable to those of Executive.
3.5 Vacation. Executive shall be entitled to all legal holidays
observed by Company and to vacation of seven (7) days for the remainder of 2002
and beginning January 1, 2003, to a vacation of three (3) weeks during each
calendar year during the term of his employment, during which time his
compensation shall be paid in full.
3.6 Expense Reimbursement. During the term of his employment, Company
shall reimburse Executive for all reasonable expenses incurred by him in
connection with the performance of his duties hereunder in accordance with its
regular reimbursement policies as in effect from time to time and upon receipt
of itemized vouchers therefor and such other supporting information as Company
may reasonably require.
3.7 Automobile. During the term of his employment, Company shall
provide Executive with a six hundred dollar ($600) per month car allowance.
SECTION 4. TERMINATION OF EMPLOYMENT
4.1 Death of Executive. Executive's employment hereunder shall
immediately terminate upon his death, upon which Company shall not thereafter be
obligated to make any further payments hereunder other than amounts (including
salary, bonuses, expense reimbursement, etc.) accrued as of the date of
Executive's death in accordance with generally accepted accounting principles.
In the event of Executive's death, all vested stock options shall be exercisable
by Executive's beneficiaries pursuant to the Judge Group, Inc.'s Stock Option
Agreement.
-5-
4.2 Disability of Executive. If Executive, in the reasonable opinion of
the Board, is or has been unable, due to his physical, mental or emotional
illness or condition to perform his duties hereunder for a period of forty five
(45) consecutive days or sixty (60) days within twelve consecutive months, then
the Board shall have the right to terminate Executive's employment upon ten (10)
days' prior written notice to Executive at any time during the continuation of
such inability, in which event Company shall not thereafter be obligated to make
any further payments hereunder other than amounts (including salary, bonuses,
expense reimbursement, etc.) accrued under this Agreement as of the date of such
termination in accordance with generally accepted accounting principles.
4.3 Termination for Cause. Executive's employment hereunder shall
terminate immediately upon notice that the CEO is terminating Executive for
"cause" (as defined herein), in which event Company shall not thereafter be
obligated to make any further payments hereunder other than amounts (including
salary, bonuses, expense reimbursement, etc.) accrued under this Agreement as of
the date of such termination in accordance with generally accepted accounting
principles. As used herein, "cause" shall include, without limitation, the
following:
(i) material dishonesty;
(ii) fraud committed in connection with Executive's
employment, theft or misappropriation or embezzlement of Company's funds;
(iii) conviction of any felony, crime involving fraud
or misrepresentation, the effect of which is likely to adversely affect the
Company or its affiliates;
(iv) material breach of Executive's obligations under
this Agreement not corrected after notice and a period of fifteen (15) days to
cure;
(v) repeated and consistent failure of Executive to
be present at work during normal business hours;
(vi) insubordination, gross incompetence or
misconduct in the performance of, or gross neglect of, Executive's duties
hereunder not corrected after notice and a period of fifteen (15) days to cure;
(vii) illegal possession or use of any controlled
substance or intoxication during business hours.
4.4 Termination without Cause. In the event Executive's employment is
terminated by Company prior to the expiration of the then current term, for any
reason other than Cause or the death or disability of Executive; then Company
shall pay Executive base salary and car allowance payments for the remainder of
the contract term. Upon making such payments, Company shall have no further
obligation to Executive hereunder.
SECTION 5. RESTRICTIVE COVENANTS
5.1 Confidentiality.
(a) Executive shall not, either during or after his employment
with Company, directly or indirectly use, publish or otherwise disclose or
divulge to any third party any trade secrets, confidential or proprietary
information of Company other than as required by law or in the ordinary course
of Company business (including, without limitation, any such information
concerning customers, clients, candidates, consultants, vendors, services,
products, processes, pricing policies, business plans or records, any technical
or financial information or data, or any information relating to the history or
prospects of Company, Company, any of Company's affiliates, or any of Company's
shareholders). "Confidential" information includes, without limitation, all
unpublished information and all information and data which is not generally
known by the industry.
-6-
(b) Executive shall not, either during or after his employment
with Company, directly or indirectly copy, reproduce or remove from Company's
premises, except in the ordinary course of Company business, trade secrets,
confidential or proprietary information of Company (in any medium) or any
Company documents, files or records (including without limitation any invoices,
customer correspondence, business cards, orders, computer records or software,
or mailing, telephone or customer lists). All such documents, files and records,
and all other memoranda, notes, files, records, lists and other documents made,
compiled or otherwise acquired by Executive in the course of his employment with
Company are and shall remain the sole property of Company and all originals and
copies thereof shall be delivered to Company upon termination of employment for
whatever reason. Executive acknowledges a duty of confidentiality owed to
Company and Company and shall not, at any time during or after his employment by
Company, retain in writing, use, divulge, furnish, or make accessible to anyone,
without the express authorization of the Board, any trade secret, private or
confidential information or knowledge of Company or its parent or any of its
parent's affiliates obtained or acquired by him while so employed. All computer
software, computer data, address books, rolodexes, business cards, telephone
lists, customer lists, price lists, contract forms, catalogs, books, records,
and files and know-how acquired while an employee of Company, are acknowledged
to be the property of Company and shall not be duplicated, removed from
Company's possession or made use of other than in pursuit of Company's business
and, upon termination of employment for any reason, Executive shall deliver to
Company, without further demand, all copies thereof which are then in his
possession or under his control.
5.2 Non-Competition and Non-Solicitation.
(c) Executive further agrees that in the event of termination
of this Agreement for any reason whatsoever including non-renewal, he will not,
for a period of two years from the date of such termination (such period not to
include any period(s) of violation or period(s) of time required for litigation
to enforce the covenants herein), either directly or indirectly, on his own
account or as agent, consultant, advisor, stockholder, employer, employee or
otherwise in conjunction with any other person or entity engage in competition
in a business similar to that of Company solicit accounts, clients, personnel,
consultants, candidates that he brought to Judge or to whom he was introduced
through his employment with Company. Executive further agrees that regardless of
geographic location, he will not, during such time period, service any customers
that Company has done any business with during the preceding year. Executive
acknowledges that doing so in any manner would interfere with, diminish and
otherwise jeopardize and damage the business and goodwill of Company.
(d) Executive further agrees that during the duration of this
agreement and for a period of two years following termination for any reason, he
will not in any way solicit, divert, take away or attempt to solicit, divert or
take away any employee, temporary personnel, consultants, applicants, clients,
customers, trade, business or goodwill from Company or otherwise compete for
accounts or personnel which became known to him through his employment with
Company and agrees not to influence or attempt to influence any of Company's
current or prospective customers, technical personnel, or employees not to do
business with Company.
5.3 Inventions and Improvements. During the term of his employment,
Executive shall promptly communicate to Company all ideas, discoveries and
inventions which are or may be useful to Company or its business. Executive
acknowledges that all ideas, discoveries, inventions, and improvements which are
made, conceived, or reduced to practice by him and every item of knowledge
relating to Company's business interests (including potential business
interests) gained by him during his employment hereunder are the property of
Company, and Executive hereby irrevocably assigns all such ideas, discoveries,
inventions, improvements, and knowledge to Company for its sole use and benefit,
without additional compensation. The provisions of this Section shall apply
whether such ideas, discoveries, inventions, improvements or knowledge are
conceived, made or gained by him alone or with others, whether during or after
usual working hours, whether on or off the job, whether applicable to matters
directly or indirectly related to Company's business interests (including
potential business interests), and whether or not within the specific realm of
his duties. It shall be conclusively presumed that ideas, inventions, and
improvements relating to Company's business interests or potential business
interests conceived during the two (2) years following termination of employment
are, for the purposes of this Agreement, conceived prior to termination of
employment. Executive shall, upon request of Company, but at no expense to
Executive, at any time during or after his employment with Company, sign all
instruments and documents requested by Company and otherwise cooperate with
Company to protect its right to such ideas, discoveries, inventions,
improvements, and knowledge, including applying for, obtaining, and enforcing
patents and copyrights thereon in any and all countries.
-7-
5.4 Injunctive and Other Relief.
(e) Executive acknowledges and agrees that the covenants
contained herein are fair and reasonable in light of the consideration paid
hereunder, and that damages alone shall not be an adequate remedy for any breach
by Executive of his covenants contained herein and accordingly expressly agrees
that, in addition to any other remedies which Company may have, Company shall be
entitled to injunctive relief in any court of competent jurisdiction for any
breach or threatened breach of any such covenants by Executive. Nothing
contained herein shall prevent or delay Company or Company from seeking, in any
court of competent jurisdiction, specific performance or other equitable
remedies in the event of any breach or intended breach by Executive of any of
its obligations hereunder.
(f) Notwithstanding the equitable relief available to Company,
the Executive, in the event of a breach of his covenants contained in Section 5
hereof, understands and agrees that the uncertainties and delay inherent in the
legal process would result in a continuing breach for some period of time, and
therefore, continuing injury to Company until and unless Company can obtain such
equitable relief. Therefore, in addition to such equitable relief, Company shall
be entitled to monetary damages for any such period of breach until the
termination of such breach, in an amount deemed reasonable to cover all actual
and consequential losses, plus all monies received by Executive as a result of
said breach and all costs and attorneys' fees incurred by Company in enforcing
this Agreement. If Executive should use or reveal to any other person or entity
any confidential information, this will be considered a continuing violation on
a daily basis for so long a period of time as such confidential information is
made use of by Executive or any such other person or entity.
SECTION 6. MISCELLANEOUS
6.1 Severability. The invalidity or unenforceability of any particular
provision or part of any provision of this Agreement shall not affect the other
provisions or parts hereof. If any provision hereof is determined to be invalid
or unenforceable by a court of competent jurisdiction, by reason of the duration
or geographical scope of the covenants contained therein, such duration or
geographical scope, or both, shall be considered to be reduced to a duration or
geographical scope to the extent necessary to cure such invalidity.
6.2 Assignment. This Agreement shall not be assignable by Executive,
and shall be assignable by Company only to any person or entity which may become
a successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to Company in the business or a portion of the business presently
operated by it. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors, assigns,
heirs, executors and administrators.
6.3 Notices. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service or registered or certified mail, postage prepaid, return receipt
requested or by telegram, fax or telecopy (confirmed by U.S. mail), receipt
acknowledged, addressed as set forth below or to such other person and/or at
such other address as may be furnished in writing by any party hereto to the
other. Any such notice shall be deemed to have been given as of the date
received, in the case of personal delivery, or on the date shown on the receipt
or confirmation therefor, in all other cases. Any and all service of process and
any other notice in any such action, suit or proceeding shall be effective
against any party if given as provided in this Agreement; provided that nothing
herein shall be deemed to affect the right of any party to serve process in any
other manner permitted by law.
-8-
(a) If to Company:
Judge Technical Services, Inc. & The Judge Group, Inc.
Xxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Judge, Jr.
(b) If to Executive:
Xxx Xxxxxxx
000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
6.4 Entire Agreement and Modification. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto. Any amendment, modification, or waiver of this Agreement shall
not be effective unless in writing. Neither the failure nor any delay on the
part of any party to exercise any right, remedy, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power, or privilege with respect to any
occurrence be construed as a waiver of any right, remedy, power, or privilege
with respect to any other occurrence.
6.5 Governing Law. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the internal laws of the Commonwealth
of Pennsylvania (and United States federal law, to the extent applicable),
without giving effect to otherwise applicable principles of conflicts of law.
6.6 Headings; Counterparts. The headings of paragraphs in this
Agreement are for convenience only and shall not affect its interpretation. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which, when taken together, shall be deemed
to constitute but one and the same Agreement.
6.7 Further Assurances. Each of the parties hereto shall execute such
further instruments and take such other actions as any other party shall
reasonably request in order to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
JUDGE TECHNICAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxxxxxxx
Chief Financial Officer,
The Judge Group, Inc.
Date: September 6, 2002
-----------------------------------
/s/ Xxx Xxxxxxx
-----------------------------------------
Xxx Xxxxxxx
Date: September 6, 2002
-----------------------------------
-9-
EMPLOYMENT AGREEMENT
--------------------
EMPLOYMENT AGREEMENT dated as of September 1, 2002, between JUDGE
TECHNICAL SERVICES, INC. ("Company") and Xxxxxxxxx Xxxxxx ("Recruiter").
BACKGROUND
----------
The Company is a Delaware corporation engaged in the business of contract
placement in the IT, Food, Pharmaceutical, Biosciences, Engineering, and
Distribution businesses.
Recruiter has substantial business experience and talents in the area
of contract placement. Pursuant to the Asset Purchase Agreement By and Between
Beacon Information Technologies and Company, Company wishes to employ Recruiter
on the terms and conditions set forth in this Agreement.
Pursuant to the foregoing, Company desires to employ Recruiter, and
Recruiter desires to enter into the employ of Company, on the terms and
conditions contained in this Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein and intending, to be legally bound
hereby, the parties hereto agree as follows:
SECTION 1. CAPACITY AND DUTIES
1.1 Employment; Acceptance of Employment. Company hereby employs
Recruiter and Recruiter hereby accepts employment by Company for the period and
upon the terms and conditions hereinafter set forth.
1.2 Capacity and Duties.
(a) Recruiter shall be principally employed by Company as a
recruiter, and shall perform such duties and have such authority consistent with
her position as may from time to time be specified by the President of the
Company. Recruiter shall report directly to the Branch Manager for the contract
placement division in the Chicago office and shall perform her duties for
Company principally from Company's office located at 0000 Xxxxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxx (the "Chicago office"), except for periodic
travel that may be necessary or appropriate in connection with the performance
of Recruiter's duties hereunder.
(b) Recruiter shall devote her full working time, energy,
skill and best efforts to the performance of his duties hereunder, in a manner
which will faithfully and diligently further the business and interests of
Company and its affiliates (as defined below), and shall not be employed by or
participate or engage in or be a part of in any manner the management or
operation of any business enterprise other than Company and its affiliates
without the prior written consent of the President, which consent may be granted
or withheld in her sole discretion. For the purposes of this definition
"affiliate" means any person or entity which is a subsidiary of or controlled
by, or under common control with, the Company
(c) Recruiter, without the express consent of President, shall
have no actual, apparent or implied authority to pledge the credit of Company,
bind Company under any contract, note, mortgage or other agreement outside the
ordinary course of Company's business; release or discharge any debt due
Company; or sell, mortgage, transfer or otherwise dispose of any assets of
Company.
SECTION 2. TERM OF EMPLOYMENT
2.1 Term. The initial term of Recruiter's employment hereunder shall be
one (1) year commencing on the date hereof and shall thereafter automatically
terminate. Thereafter, at the mutual will of both parties, Recruiter shall
remain employed as an employee at will, whose employment may be terminated by
either party.
-10-
SECTION 3. COMPENSATION
3.1 Basic Compensation. As compensation for Recruiter's services
hereunder, Company shall pay to Recruiter a salary at the annual rate of $50,000
(the "Base Salary"), payable in bi-weekly installments in accordance with
Company's regular payroll practices in effect from time to time for the first
year during the term of Recruiter's employment, and subsequently at such annual
rate as the management shall thereafter decide.
3.2 Spread. In addition to the base salary, Recruiter shall be entitled
to receive three percent (3%) of her weekly spread, as defined in the Asset
Purchase Agreement for the candidates she recruits.
3.3 Executive Benefits. In addition to the compensation provided for in
Sections 3.1 and 3.2, Recruiter shall be entitled during the term of her
employment to participate in Company's medical and 401(k) plans and such other
of Company's employee benefit plans and benefit programs as may from time to
time be provided for other employees of Company whose duties, responsibilities,
and compensation are reasonably comparable to those of Recruiter.
3.4 Vacation. Recruiter shall be entitled to all legal holidays
observed by Company and to vacation of five (5) days for the remainder of 2002
and beginning January 1, 2003, to a vacation of three (3) weeks during each
calendar year during the term of her employment, during which time her
compensation shall be paid in full.
3.5 Expense Reimbursement. During the term of her employment, Company
shall reimburse Recruiter for all reasonable expenses incurred by her in
connection with the performance of her duties hereunder in accordance with its
regular reimbursement policies as in effect from time to time and upon receipt
of itemized vouchers therefor and such other supporting information as Company
may reasonably require.
SECTION 4. TERMINATION OF EMPLOYMENT
4.1 Death of Recruiter. Recruiter's employment hereunder shall
immediately terminate upon her death, upon which Company shall not thereafter be
obligated to make any further payments hereunder other than amounts (including
salary, bonuses, expense reimbursement, etc.) accrued as of the date of
Recruiter's death in accordance with generally accepted accounting principles.
4.2 Termination for Cause. Recruiter's employment hereunder shall
terminate immediately upon notice that the CEO is terminating Recruiter for
"cause" (as defined herein), in which event Company shall not thereafter be
obligated to make any further payments hereunder other than amounts (including
salary, bonuses, expense reimbursement, etc.) accrued under this Agreement as of
the date of such termination in accordance with generally accepted accounting
principles. As used herein, "cause" shall include, without limitation, the
following:
(i) material dishonesty;
(ii) fraud committed in connection with Recruiter's
employment, theft or misappropriation or embezzlement of Company's funds;
(iii) conviction of any felony, crime involving fraud
or misrepresentation, the effect of which is likely to adversely affect the
Company or its affiliates;
(iv) material breach of Recruiter's obligations under
this Agreement not corrected after notice and a period of fifteen (15) days to
cure;
-11-
(v) repeated and consistent failure of Recruiter to
be present at work during normal business hours;
(vi) insubordination, gross incompetence or
misconduct in the performance of, or gross neglect of, Recruiter's duties
hereunder not corrected after notice and a period of fifteen (15) days to cure;
(vii) illegal possession or use of any controlled
substance or intoxication during business hours.
4.3 Termination without Cause. In the event Recruiter's employment is
terminated by Company prior to the expiration of the then current term, for any
reason other than Cause or the death or disability of Recruiter; then Company
shall pay Recruiter base salary payments for the remainder of the contract term.
Upon making such payments, Company shall have no further obligation to Recruiter
hereunder.
SECTION 5. RESTRICTIVE COVENANTS
5.1 Confidentiality.
(a) Recruiter shall not, either during or after her employment
with Company, directly or indirectly use, publish or otherwise disclose or
divulge to any third party any trade secrets, confidential or proprietary
information of Company other than as required by law or in the ordinary course
of Company business (including, without limitation, any such information
concerning customers, clients, candidates, consultants, vendors, services,
products, processes, pricing policies, business plans or records, any technical
or financial information or data, or any information relating to the history or
prospects of Company, Company, any of Company's affiliates, or any of Company's
shareholders). "Confidential" information includes, without limitation, all
unpublished information and all information and data which is not generally
known by the industry.
(b) Recruiter shall not, either during or after her employment
with Company, directly or indirectly copy, reproduce or remove from Company's
premises, except in the ordinary course of Company business, trade secrets,
confidential or proprietary information of Company (in any medium) or any
Company documents, files or records (including without limitation any invoices,
customer correspondence, business cards, orders, computer records or software,
or mailing, telephone or customer lists). All such documents, files and records,
and all other memoranda, notes, files, records, lists and other documents made,
compiled or otherwise acquired by Recruiter in the course of her employment with
Company are and shall remain the sole property of Company and all originals and
copies thereof shall be delivered to Company upon termination of employment for
whatever reason. Recruiter acknowledges a duty of confidentiality owed to
Company and Company and shall not, at any time during or after her employment by
Company, retain in writing, use, divulge, furnish, or make accessible to anyone,
without the express authorization of the Board, any trade secret, private or
confidential information or knowledge of Company or its parent or any of its
parent's affiliates obtained or acquired by him while so employed. All computer
software, computer data, address books, rolodexes, business cards, telephone
lists, customer lists, price lists, contract forms, catalogs, books, records,
and files and know-how acquired while an employee of Company, are acknowledged
to be the property of Company and shall not be duplicated, removed from
Company's possession or made use of other than in pursuit of Company's business
and, upon termination of employment for any reason, Recruiter shall deliver to
Company, without further demand, all copies thereof which are then in her
possession or under her control.
5.2 Non-Competition and Non-Solicitation.
(c) Recruiter further agrees that in the event of termination
of this Agreement for any reason whatsoever including non-renewal, she will not,
for a period of two years from the date of such termination (such period not to
include any period(s) of violation or period(s) of time required for litigation
to enforce the covenants herein), either directly or indirectly, on her own
account or as agent, consultant, advisor, stockholder, employer, employee or
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otherwise in conjunction with any other person or entity engage in competition
in a business similar to that of Company solicit accounts, clients, personnel,
consultants, candidates that she brought to Judge or to whom she was introduced
through her employment with Company. Recruiter further agrees that regardless of
geographic location, she will not, during such time period, service any
customers that Company has done any business with during the preceding year.
Recruiter acknowledges that doing so in any manner would interfere with,
diminish and otherwise jeopardize and damage the business and goodwill of
Company.
(d) Recruiter further agrees that during the duration of this
agreement and for a period of two years following termination for any reason,
she will not in any way solicit, divert, take away or attempt to solicit, divert
or take away any employee, temporary personnel, consultants, applicants,
clients, customers, trade, business or goodwill from Company or otherwise
compete for accounts or personnel which became known to him through her
employment with Company and agrees not to influence or attempt to influence any
of Company's current or prospective customers, technical personnel, or employees
not to do business with Company.
5.3 Inventions and Improvements. During the term of her employment,
Recruiter shall promptly communicate to Company all ideas, discoveries and
inventions which are or may be useful to Company or its business. Recruiter
acknowledges that all ideas, discoveries, inventions, and improvements which are
made, conceived, or reduced to practice by him and every item of knowledge
relating to Company's business interests (including potential business
interests) gained by him during her employment hereunder are the property of
Company, and Recruiter hereby irrevocably assigns all such ideas, discoveries,
inventions, improvements, and knowledge to Company for its sole use and benefit,
without additional compensation. The provisions of this Section shall apply
whether such ideas, discoveries, inventions, improvements or knowledge are
conceived, made or gained by him alone or with others, whether during or after
usual working hours, whether on or off the job, whether applicable to matters
directly or indirectly related to Company's business interests (including
potential business interests), and whether or not within the specific realm of
her duties. It shall be conclusively presumed that ideas, inventions, and
improvements relating to Company's business interests or potential business
interests conceived during the two (2) years following termination of employment
are, for the purposes of this Agreement, conceived prior to termination of
employment. Recruiter shall, upon request of Company, but at no expense to
Recruiter, at any time during or after her employment with Company, sign all
instruments and documents requested by Company and otherwise cooperate with
Company to protect its right to such ideas, discoveries, inventions,
improvements, and knowledge, including applying for, obtaining, and enforcing
patents and copyrights thereon in any and all countries.
5.4 Injunctive and Other Relief.
(e) Recruiter acknowledges and agrees that the covenants
contained herein are fair and reasonable in light of the consideration paid
hereunder, and that damages alone shall not be an adequate remedy for any breach
by Recruiter of her covenants contained herein and accordingly expressly agrees
that, in addition to any other remedies which Company may have, Company shall be
entitled to injunctive relief in any court of competent jurisdiction for any
breach or threatened breach of any such covenants by Recruiter. Nothing
contained herein shall prevent or delay Company or Company from seeking, in any
court of competent jurisdiction, specific performance or other equitable
remedies in the event of any breach or intended breach by Recruiter of any of
its obligations hereunder.
(f) Notwithstanding the equitable relief available to Company,
the Recruiter, in the event of a breach of her covenants contained in Section 5
hereof, understands and agrees that the uncertainties and delay inherent in the
legal process would result in a continuing breach for some period of time, and
therefore, continuing injury to Company until and unless Company can obtain such
equitable relief. Therefore, in addition to such equitable relief, Company shall
be entitled to monetary damages for any such period of breach until the
termination of such breach, in an amount deemed reasonable to cover all actual
and consequential losses, plus all monies received by Recruiter as a result of
said breach and all costs and attorneys' fees incurred by Company in enforcing
this Agreement. If Recruiter should use or reveal to any other person or entity
any confidential information, this will be considered a continuing violation on
a daily basis for so long a period of time as such confidential information is
made use of by Recruiter or any such other person or entity.
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SECTION 6. MISCELLANEOUS
6.1 Severability. The invalidity or unenforceability of any particular
provision or part of any provision of this Agreement shall not affect the other
provisions or parts hereof. If any provision hereof is determined to be invalid
or unenforceable by a court of competent jurisdiction, by reason of the duration
or geographical scope of the covenants contained therein, such duration or
geographical scope, or both, shall be considered to be reduced to a duration or
geographical scope to the extent necessary to cure such invalidity.
6.2 Assignment. This Agreement shall not be assignable by Recruiter,
and shall be assignable by Company only to any person or entity which may become
a successor in interest (by purchase of assets or stock, or by merger, or
otherwise) to Company in the business or a portion of the business presently
operated by it. Subject to the foregoing, this Agreement and the rights and
obligations set forth herein shall inure to the benefit of, and be binding upon,
the parties hereto and each of their respective permitted successors, assigns,
heirs, executors and administrators.
6.3 Notices. All notices hereunder shall be in writing and shall be
sufficiently given if hand-delivered, sent by documented overnight delivery
service or registered or certified mail, postage prepaid, return receipt
requested or by telegram, fax or telecopy (confirmed by U.S. mail), receipt
acknowledged, addressed as set forth below or to such other person and/or at
such other address as may be furnished in writing by any party hereto to the
other. Any such notice shall be deemed to have been given as of the date
received, in the case of personal delivery, or on the date shown on the receipt
or confirmation therefor, in all other cases. Any and all service of process and
any other notice in any such action, suit or proceeding shall be effective
against any party if given as provided in this Agreement; provided that nothing
herein shall be deemed to affect the right of any party to serve process in any
other manner permitted by law.
(a) If to Company:
Judge Technical Services, Inc. & The Judge Group, Inc.
Xxx Xxxx Xxxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Judge, Jr.
(b) If to Recruiter:
Xxxxxxxxx Xxxxxx
000 Xxxxxxx Xx.
Xxxxxxxxxx, XX 00000
6.4 Entire Agreement and Modification. This Agreement constitutes the
entire agreement between the parties hereto with respect to the matters
contemplated herein and supersedes all prior agreements and understandings with
respect thereto. Any amendment, modification, or waiver of this Agreement shall
not be effective unless in writing. Neither the failure nor any delay on the
part of any party to exercise any right, remedy, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power, or privilege with respect to any
occurrence be construed as a waiver of any right, remedy, power, or privilege
with respect to any other occurrence.
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6.5 Governing Law. This Agreement is made pursuant to, and shall be
construed and enforced in accordance with, the internal laws of the Commonwealth
of Pennsylvania (and United States federal law, to the extent applicable),
without giving effect to otherwise applicable principles of conflicts of law.
6.6 Headings; Counterparts. The headings of paragraphs in this
Agreement are for convenience only and shall not affect its interpretation. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original and all of which, when taken together, shall be deemed
to constitute but one and the same Agreement.
6.7 Further Assurances. Each of the parties hereto shall execute such
further instruments and take such other actions as any other party shall
reasonably request in order to effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
JUDGE TECHNICAL SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxxxxxxxx
Chief Financial Officer,
The Judge Group, Inc.
Date: September 6, 2002
-----------------------------------
/s/ Xxxxxxxxx Xxxxxx
------------------------------------------
Xxxxxxxxx Xxxxxx
Date: September 6, 2002
------------------------------------
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