Exhibit 2.1
ASSET PURCHASE AGREEMENT
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Among
STRATUS SERVICES GROUP, INC.,
Buyer,
and
ROYALPAR INDUSTRIES, INC.,
XXXXX TECHNICAL DESIGN, INC.,
LPL TECHNICAL SERVICE, INC.,
and
MAINSTREAM ENGINEERING COMPANY, INC.,
Sellers.
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Dated JULY 9, 1997
TABLE OF CONTENTS
PAGE(S)
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ARTICLE I
SALE AND PURCHASE OF THE ASSETS.............................................1
1.1. Assets.............................................................1
1.2. Excluded Assets....................................................2
1.3. A/R Agreements.....................................................2
ARTICLE II
THE CLOSING.................................................................2
2.1. Place and Date.....................................................2
2.2. Purchase Price.....................................................2
2.3. Allocation of Purchase Price.......................................2
2.4. Assumption of Liabilities..........................................2
2.5. Excise and Property Taxes..........................................3
ARTICLE III
REPRESENTATIONS AND WARRANTIES..............................................3
3.1. Representations and Warranties of the Sellers......................3
3.1.1. Authorization, etc.....................................3
3.1.2. Organization and Good Standing.........................4
3.1.3. No Conflicts, etc......................................4
3.1.4. Financial Statements...................................4
3.1.5. Compliance with Laws: Governmental Approvals and
Consents...............................................5
3.1.6. Assets.................................................5
3.1.7. Accounts Receivable....................................5
3.1.8. Customers..............................................5
3.1.9. Litigation.............................................6
3.1.10. Confidentiality........................................6
3.1.11. Lease of Real Property.................................6
3.1.12. Brokers, Finders, etc..................................6
3.1.13. Disclosure.............................................7
3.1.14. Operation of the Business..............................7
3.1.15. Intellectual Property..................................7
3.2. Representations and Warranties of the Buyer........................7
3.2.1. Authorization, etc.....................................7
3.2.2. Organization and Good Standing.........................8
3.2.3. No Conflicts, etc......................................8
3.2.4. Compliance with Laws; Governmental Approvals and
Consents...............................................8
3.2.5. Litigation.............................................8
3.2.6. Disclosure.............................................8
ARTICLE IV
COVENANTS...................................................................9
4.1. Covenants of the Sellers...........................................9
4.1.1. Access and Information.................................9
4.1.2. Further Assurances.....................................9
4.1.3. Conduct of Business Pending Closing....................9
4.1.4. Consents..............................................10
4.1.5. Bankruptcy Court Order................................10
4.1.6. Schedules.............................................10
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4.1.7. Access to Records.....................................10
4.2. Covenants of the Buyer............................................11
4.2.1. Further Assurances....................................11
ARTICLE V
CONDITIONS PRECEDENT.......................................................11
5.1. Conditions to Obligations of Each Party...........................11
5.1.1. No Injunction, etc....................................11
5.2. Conditions to Obligations of the Buyer............................11
5.2.1. AGR Assumption Agreement..............................11
5.2.2. Consents..............................................11
5.2.3. Proceedings...........................................11
5.2.4. Collateral Agreements.................................12
5.2.5. AGR Loan Agreement....................................12
5.2.6. Consulting Agreement..................................12
5.3. Conditions to Obligations of the Sellers..........................12
5.3.1. Proceedings...........................................12
5.3.2. Consents and Approvals................................12
5.3.3. Competing Bids........................................12
ARTICLE VI
TERMINATION................................................................13
6.1. Termination.......................................................13
6.2. Effect of Termination.............................................13
ARTICLE VII
DEFINITIONS................................................................13
7.1. Definition of Certain Terms.......................................13
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ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.................................16
8.1. Survival of Representations and Warranties, etc...................16
ARTICLE IX
MISCELLANEOUS..............................................................17
9.1. Expenses..........................................................17
9.2. Severability......................................................17
9.3. Notices...........................................................17
9.4. Headings..........................................................18
9.5. Entire Agreement..................................................18
9.6. Counterparts......................................................18
9.7. Governing Law, etc................................................18
9.8. Binding Effect....................................................18
9.9. Assignment........................................................18
9.10. No Third Party Beneficiaries......................................18
9.11. Amendment; Waivers, etc...........................................19
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EXHIBITS
Exhibit A - Accounts Receivable Sale and Purchase Agreements between Sellers and
AGR
Exhibit B - Allocation of Purchase Price among Assets
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SCHEDULES
Schedule 1.1 - Assets
Schedule 1.2 - Excluded Assets
Schedule 2.4(a) - Unexpired Leases and Executory Contracts to be Assumed by
Buyer
Schedule 3.1.2(b) - Sellers' Authorization to do business
Schedule 3.1.3 - Violation of Agreements by Sellers
Schedule 3.1.5(b) - Governmental Approvals obtained by Sellers
Schedule 3.1.6 - Liens on Sellers' Assets
Schedule 3.1.9 - Sellers' Litigation
Schedule 3.2.3 - Governmental Approvals obtained by Buyer
Schedule 3.2.4 - Buyer's Violation of Applicable Laws
Schedule 3.2.5 - Buyer's Litigation
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ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of July 9, 1997,
among Stratus Services Group, Inc., a Delaware corporation (the "Buyer"),
Royalpar Industries, Inc., a Delaware corporation, Xxxxx Technical Design, Inc.,
a Delaware corporation, LPL Technical Service, Inc., a California corporation,
and Mainstream Engineering Co., Inc., a Delaware corporation (collectively, the
"Sellers").
W I T N E S S E T H:
WHEREAS, the Sellers are in the business of providing temporary staffing
services (the "Business"); and
WHEREAS, the Sellers and AGR Financial, LLC ("AGR") have heretofore
entered into accounts receivable sale and purchase agreements listed on Exhibit
A hereto (the "A/R Agreements"); and
WHEREAS, the Sellers have guaranteed the amounts due to AGR pursuant to
the A/R Agreements; and
WHEREAS, the Buyer wishes to purchase or acquire from the Sellers and the
Sellers wish to sell, assign and transfer to the Buyer, certain of the assets
held in connection with, necessary for, or material to the Business, for the
purchase price and upon the terms and subject to the conditions hereinafter set
forth; and
WHEREAS, the Buyer wishes to assume certain liabilities of the Sellers,
including but not limited to, the Sellers' liability as guarantor of all amounts
due to AGR pursuant to the A/R Agreements.
NOW, THEREFORE, in consideration of the mutual covenants, representations
and warranties made herein, and of the mutual benefits to be derived hereby, the
parties hereto agree as follows:
ARTICLE I
SALE AND PURCHASE OF THE ASSETS
1.1. Assets. Subject to and upon the terms and conditions set forth in
this Agreement, on the Closing Date, the Sellers will sell, transfer, convey,
assign and deliver to the Buyer, and the Buyer will purchase or acquire from the
Sellers, all right, title and interest of the Sellers in and to the assets,
properties, business and goodwill of the Sellers of every kind and description,
real, personal and mixed, tangible and intangible, and all rights associated
therewith, whether accrued, contingent or otherwise and whether now existing or
hereinafter acquired relating to or used or held for use in connection with the
Business as the same may exist on the Closing Date, including but not limited to
those assets listed in Schedule 1.1 (collectively, the "Assets"). Except for the
Assumed Liabilities and subject to the terms and conditions hereof, on the
Closing Date, the Assets shall be transferred or otherwise conveyed to the Buyer
free and clear of all
liabilities, claims, obligations, liens, encumbrances and interests; provided,
however, that any and all such liabilities, claims, obligations, liens,
encumbrances and interests shall attach to the proceeds of the sale of the
Assets (the "Sale").
1.2. Excluded Assets. The Sellers will retain and not transfer, and the
Buyer will not purchase or acquire, the assets listed on Schedule 1.2 (the
"Excluded Assets").
1.3. A/R Agreements. As between the Sellers and the Buyer, the Buyer shall
have the exclusive right to deal with AGR for purposes of collecting or settling
all amounts due to AGR pursuant to the A/R Agreements. The Buyer shall have
control of all accounts subject to the guaranty of the Sellers; provided,
however, that nothing contained herein shall be deemed to affect the Sellers'
right to and interest in Sellers' interest due from AGR under the A/R Agreements
as and when such accounts are collected thereunder.
ARTICLE II
THE CLOSING
2.1. Place and Date. The closing of the sale and purchase of the Assets
shall take place at two o'clock p.m. local time on the 21st day of July, 1997 at
the offices of Crummy, Del Deo, Dolan, Griffinger & Xxxxxxxxx, Xxx Xxxxxxxxxx
Xxxxx, Xxxxxx, Xxx Xxxxxx 00000, or such other time and place upon which the
parties may agree (the "Closing Date").
2.2. Purchase Price. On the terms and subject to the conditions set forth
in the Agreement, the Buyer agrees to pay or cause to be paid to the Sellers an
aggregate of $75,000 in cash and the Buyer will also assume the liabilities and
obligations of the Sellers described in Section 2.4 as of the Closing Date which
are estimated on the date hereof to be approximately $1,600,000 (the "Purchase
Price").
2.3. Allocation of Purchase Price. (a) The Purchase Price shall be
allocated among the Assets in accordance with an allocation schedule to be
prepared by the Buyer and the Sellers and attached hereto as Exhibit B. Such
allocation schedule shall be prepared in accordance with section 1060 of the
Internal Revenue Code.
(b) The parties will each report the federal, state and local and
other Tax consequences of the purchase and sale contemplated hereby (including
the filing of Internal Revenue Service Form 8594) in a manner consistent with
such allocation schedules.
2.4. Assumption of Liabilities. (a) Subject to the terms and conditions
set forth herein, on the Closing Date, as further consideration for the sale and
transfer of the Assets, the Buyer shall assume and agree to pay, honor and
discharge the following specified liabilities and obligations of the Sellers in
connection with the Business and no others:
(i) the Sellers' liability as guarantor of all amounts due to AGR
pursuant to the A/R Agreements in accordance with the terms of
the AGR Assumption Agreement among the Buyer, AGR and the
Sellers (the "AGR Assumption Agreement");
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(ii) the responsibility for employment of all of the Sellers'
permanent employees and Field Employees as of the Closing
Date, on terms consistent with such employees' current salary
and benefit arrangements;
(iii) the responsibility for maintaining the Sellers' employment
records and files for all permanent employees and Field
Employees employed by the Sellers within the five (5) years
prior to the Closing Date;
(iv) the unexpired Leases with respect to occupancy obligations and
lease payments for periods on and after the Closing Date and
executory contracts, each of which is listed on Schedule
2.4(a) hereto;
(v) the payment of all accrued vacation and holiday time and pay
of the Sellers' permanent employees and Field Employees; and
(vi) the responsibility for payment of all sales, use and transfer
taxes, if any, arising as a result of the transfer of the
Assets ("Transfer Taxes") (all of the foregoing being herein
called the "Assumed Liabilities").
(b) On the Closing Date, the Buyer shall assume the Assumed
Liabilities by executing and delivering to the Sellers an assumption agreement
in form and substance satisfactory to Sellers (the "Assumption Agreement").
(c) It is expressly agreed and understood that, except as provided
in Section 2.4(a) above, the Buyer shall not assume any liability or obligation
of the Sellers and/or the Business of any kind or nature, whether known or
unknown as of the Closing Date, whether fixed or contingent, and however arising
("Excluded Liabilities").
2.5. Excise and Property Taxes. The Sellers shall be responsible for any
and all sales, use and transfer taxes, and any and all state, local or federal
income taxes related to any period before the Closing Date. The Buyer shall not
be responsible for any business, occupation, withholding or similar tax, or for
any taxes of any kind related to the Assets for any period before the Closing
Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. Representations and Warranties of the Sellers. The Sellers represent
and warrant to the Buyer as follows:
3.1.1. Authorization, etc. Each of the Sellers has the power and
authority to execute and deliver the Agreement and each of the Collateral
Agreements to which it is a party, to perform fully its obligations thereunder,
and to consummate the transactions contemplated
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thereby. The execution and delivery by each of the Sellers of the Agreement and
the Collateral Agreements to which it is a party, and the consummation of the
transactions contemplated thereby, has been duly authorized by all requisite
action of each of the Sellers. Each of the Sellers has duly executed and
delivered the Agreement and each of the Collateral Agreements to which it is a
party. The Agreement is, and on the Closing Date each of the Collateral
Agreements to which any of the Sellers are a party will be, legal, valid and
binding obligations of the Sellers, enforceable against them in accordance with
their respective terms.
3.1.2. Organization. (a) Each of the Sellers is a corporation duly
organized and validly existing under the laws of the jurisdiction of
incorporation, with full corporate power and authority to conduct its business
as it is now being conducted and to own or lease and to operate its properties
as and in the places where such business is conducted and such properties are
owned, leased or operated.
(b) Each of the Sellers is duly qualified or licensed to do
business as a foreign corporation in each of the jurisdictions specified in
Schedule 3.1.2(b), which are the only jurisdictions in which the operation of
the Business or the character of the properties owned, leased or operated by it
in connection with the Business makes such qualification or licensing necessary.
(c) Each of the Sellers has delivered to the Buyer complete
and correct copies of its articles or certificate of incorporation and by-laws,
as amended and in effect on the date hereof. The Sellers are not in violation of
any of the provisions of their respective articles or certificate of
incorporation or by-laws.
3.1.3. No Conflicts, etc. The execution, delivery and performance by
the Sellers of the Agreement and each of the Collateral Agreements to which it
is a party, and the consummation of the transactions contemplated thereby, do
not and will not contravene, conflict with or result in a violation of or a
default under (with or without the giving of notice or the lapse of time or
both) (i) any Applicable Law applicable to any of the Sellers, the Business or
the Assets, (ii) the certificate of incorporation or the by-laws of any of the
Sellers, or (iii) except as set forth in Schedule 3.1.3, any Contract or other
contract, agreement or other instrument to which any of the Sellers or any
Affiliates thereof is a party or by which any of the Sellers or any of their
properties or assets, including, but not limited to the Assets, may be bound or
affected. Except as specified in Schedule 3.1.5(b), no Governmental Approval or
other Consent is required to be obtained or made by any of the Sellers in
connection with the execution and delivery of the Agreement and the Collateral
Agreements or the consummation of the transactions contemplated thereby.
3.1.4. Financial Statements.
(a) Financial Statements. The consolidated and consolidating
balance sheets of the Sellers as at and for the periods ended March 31, 1997
("1997 Balance Sheets") and March 31, 1996, and the related consolidated and
consolidating statements of income (the "Financial Statements") have been
delivered to the Buyer. The 1997 Balance Sheets do not include any assets or
liabilities which do not constitute a part of the Assets, the Excluded Assets,
the Assumed Liabilities, or the Excluded Liabilities and present fairly the
financial condition of the Sellers as at the date thereof. The statements of
income for March 31, 1997 included in the
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Financial Statements do not reflect the operations of any entity or business
other than the Business, reflect all costs that historically have been incurred
by the Business and present fairly the results of operations and cash flow of
the Business for the periods indicated and subject as aforesaid. As of March 31,
1997, there existed no liability of any nature or in any amount that should
properly be reflected or reserved against in a balance sheet prepared in
accordance with GAAP, consistently applied, which is not fully reflected or
reserved against in the 1997 Balance Sheets, except as described in the notes to
the 1997 Balance Sheets.
(b) Except as fully reflected or reserved against in the 1997
Balance Sheets, there are no liabilities or obligations of any kind or nature,
whether absolute or contingent, and whether or not of a nature required to be
reflected on a balance sheet in accordance with GAAP, against, relating to or
affecting the Business or any of the Assets or Assumed Liabilities, other than
liabilities or obligations (i) incurred in the ordinary course of business
consistent with past practice and the provisions of this Agreement, (ii) which
are expressly assumed by the Buyer or (iii) which are specifically disclosed
herein or in a Schedule hereto.
3.1.5. Compliance with Laws: Governmental Approvals and Consents.
(a) The Sellers have complied in all material respects with all Applicable Laws
applicable to the Business or the Assets, and the Sellers have not received any
notice alleging any such conflict, violation, breach or default.
(b) Schedule 3.1.5(b) sets forth all Governmental Approvals
and other Consents necessary for, or otherwise material to, the conduct of the
Business. All such Governmental Approvals and Consents have been duly obtained
and are in full force and effect, and the Sellers are in compliance with each of
such Governmental Approvals and Consents held by it with respect to the Assets
and the Business.
3.1.6. Assets. Except as set forth in Schedule 3.1.6, the Sellers
have good title to all the Assets free and clear of any and all Liens. The
Assets are in all material respects adequate for the purposes for which such
assets are currently used or are held for use, and are in good repair and
operating condition (subject to normal wear and tear) and, to the knowledge of
the Sellers, there are no facts or conditions affecting the Assets which could
interfere in any material respect with the use, occupancy or operation thereof
as currently used, occupied or operated, or their adequacy for such use.
3.1.7. Accounts Receivable. All accounts receivable of the Sellers
arising to the Closing have been or will be sold to AGR pursuant to the A/R
Agreements, for which the Buyer is executing the AGR Assumption Agreement. The
amounts due to the Sellers from AGR under the A/R Agreements, which constitute
Excluded Assets, are reflected on the 1997 Balance Sheets as Sellers' interest.
3.1.8. Customers. On the Closing Date, the Sellers shall deliver to
the Buyer all files containing the names and addresses of all customers for
which the Sellers have provided goods or services.
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3.1.9. Litigation. Except as set forth on Schedule 3.1.9, (i) there
is no action, claim, suit, or proceeding pending, or to the Sellers' knowledge,
after due inquiry, threatened, against or relating to the Assets, the Assumed
Liabilities, the Sellers or the Business or against or relating to the
transactions contemplated by this Agreement or any of the Collateral Agreements,
(ii) there is no decision, injunction, judgment, order, or ruling by any Court,
administrative agency or other Governmental Authority or by any arbitrator
(each, an "Order") to which any of the Assets, the Assumed Liabilities, the
Sellers or the Business, is subject. Except as set forth on Schedule 3.1.9, (i)
each of the Sellers is, and at all times since December 31, 1996 has been, in
full compliance with all of the terms and requirements of each Order to which
it, or any of the Assets, the Assumed Liabilities or the Business, has been
subject, (ii) no event has occurred or circumstance exists that may constitute
or result in (with or without notice or lapse of time) a violation of or failure
to comply with any term or requirement of any Order to which any of the Sellers,
the Assets, the Assumed Liabilities or the Business, is subject, and (iii) none
of the Sellers has received, at any time since December 31, 1996, any notice or
other communication (whether oral or written) from any Governmental Authority or
any other Person regarding any actual, alleged, possible or potential violation
of, or failure to comply with, any term or requirement of any Order to which any
of the Sellers, the Assets, the Assumed Liabilities or the Business, is or has
been subject.
3.1.10. Confidentiality. The Sellers have taken all commercially
reasonable steps necessary to preserve the confidential nature of all material
confidential information (including, without limitation, any proprietary
information) with respect to the Business and the Assets.
3.1.11. Lease of Real Property. (a) The Sellers own no real
property. The Sellers have delivered to the Buyer correct and complete copies of
each of the real property leases listed on Schedule 2.4(a) (collectively, the
"Leases"). Each Lease is a legal, valid and binding obligation of the parties
thereto, enforceable against such parties in accordance with its terms, subject
as to enforcement, to applicable bankruptcy, insolvency, reorganization and
similar laws affecting creditors' rights generally and to general equity
principles. Other than the bankruptcy of the Sellers, no event has occurred and
is continuing that constitutes or, with notice or the passage of time or both,
would constitute a default, violation or breach on the part of the Sellers under
any Lease, or, to the knowledge of the Sellers, on the part of any other party
to any Lease. The Sellers do not owe any brokerage commissions with respect to
any Leases. No tenant or other party in possession of any of the properties
subject to the Leases has any right to purchase, or holds any right of first
refusal to purchase, such properties on less than 120 days' notice.
(b) Current Use. To the Sellers' best knowledge, the use and
operation of the properties subject to Leases in the conduct of the Business do
not violate in any material respect any instrument of record or agreement
affecting the properties subject to Leases or Other Leases. There is no
violation of any covenant, condition, restriction, easement or order of any
Governmental Authority having jurisdiction over such property or of any other
Person entitled to enforce the same affecting the Leases, or the use or
occupancy thereof.
3.1.12. Brokers, Finders, etc. All negotiations relating to the
Agreement, the Collateral Agreements, and the transactions contemplated thereby,
have been carried on without the participation of any Person acting on behalf of
the Sellers or their Affiliates in such manner
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as to give rise to any valid claim against the Buyer for any brokerage or
finder's commission, fee or similar compensation, or for any bonus payable to
any officer, director, employee, agent or sales representative of or consultant
to the Sellers or their Affiliates upon consummation of the transactions
contemplated hereby or thereby.
3.1.13. Disclosure. No representation or warranty of the Sellers
made in this Agreement or in any letter, certificate or memorandum furnished or
to be furnished by the Sellers or on their behalf, and no statement in the
Schedules, contains or will contain any untrue statement of material fact or
omits to state a material fact necessary to make the statements herein or
therein, in light of the circumstances in which they were made, not misleading.
There is no fact (other than matters of a general economic or political nature
which do not affect the Business uniquely) known to the Sellers that has not
been disclosed by the Sellers to the Buyer that might reasonably be expected to
have or result in a material adverse effect on the Assets or Assumed
Liabilities.
3.1.14. Operation of the Business. The Sellers have not (i)
conducted the Business through, or (ii) transferred any Assets to, any divisions
or any other direct or indirect subsidiary or affiliate of the Sellers.
3.1.15. Intellectual Property. (a) Title. The Sellers own or have
the exclusive right to use pursuant to license, sublicense, agreement or
permission all of the Assets that constitute Intellectual Property to which the
Sellers have rights ("Intellectual Property Assets"), free from any Liens and
free from any requirement of any past, present or future royalty payments,
license fees, charges or other payments, or conditions or restrictions
whatsoever.
(b) No Infringement. To the knowledge of the Sellers, the
conduct of the Business does not infringe or otherwise conflict with any rights
of any Person in respect of any Intellectual Property and none of the
Intellectual Property Assets is being infringed or otherwise used or available
for use, by any other Person.
3.2. Representations and Warranties of the Buyer. The Buyer represents and
warrants to the Sellers as follows:
3.2.1. Authorization, etc. The Buyer has the power and authority to
execute and deliver the Agreement and each of the Collateral Agreements to which
it is a party, to perform fully its obligations thereunder, and to consummate
the transactions contemplated thereby. The execution and delivery by the Buyer
of the Agreement and the Collateral Agreements to which it is a party, and the
consummation of the transactions contemplated thereby, have been duly authorized
by all requisite action of the Buyer. The Buyer has duly executed and delivered
the Agreement and each of the Collateral Agreements to which it is a party. The
Agreement is, and
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on the Closing Date each of the Collateral Agreements to which the Buyer is a
party will be, legal, valid and binding obligations of the Buyer, enforceable
against it in accordance with their respective terms.
3.2.2. Organization and Good Standing. (a) The Buyer is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, with full corporate power and
authority to carry on its business and to own or lease and to operate its
properties as and in the places where such business is conducted and such
properties are owned, leased or operated.
(b) The Buyer has delivered to the Sellers complete and
correct copies of its certificate of incorporation and by-laws as amended and in
effect on the date hereof. The Buyer is not in violation of any of the
provisions of its certificate of incorporation or by-laws.
3.2.3. No Conflicts, etc. The execution, delivery and performance by
the Buyer of the Agreement and each of the Collateral Agreements to which it is
a party, and the consummation of the transactions contemplated thereby, do not
and will not conflict with or result in a violation of or a default under (with
or without the giving of notice or the lapse of time or both) (i) any Applicable
Law applicable to the Buyer, or (ii) the certificate of incorporation or by-laws
of the Buyer. Except as specified in Schedule 3.2.3, no Governmental Approval or
other Consent is required to be obtained or made by the Buyer in connection with
the execution and delivery of the Agreement and the Collateral Agreements or the
consummation of the transactions contemplated thereby.
3.2.4. Compliance with Laws; Governmental Approvals and Consents.
Except as disclosed in Schedule 3.2.4, the Buyer has complied in all material
respects with all Applicable Laws applicable to its business, and the Buyer has
not received any notice alleging any such conflict, violation, breach or
default.
3.2.5. Litigation. Except as set forth on Schedule 3.2.5, there is
no action, claim, suit, or proceeding pending, or to the Buyer's knowledge,
after due inquiry, threatened, against or relating to the Buyer or its business
or against or relating to the transactions contemplated by this Agreement or any
of the Collateral Agreements.
3.2.6. Disclosure. There is no fact (other than matters of a general
economic or political nature which do not affect the Business uniquely) known to
the Buyer that has not been disclosed by the Buyer to the Sellers that might
reasonably be expected to have or result in a material adverse effect on the
Assets or Assumed Liabilities.
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ARTICLE IV
COVENANTS
4.1. Covenants of the Sellers. The Sellers covenant and agree to comply
with the following:
4.1.1. Access and Information. So long as the Agreement remains in
effect, the Sellers will give the Buyer, its counsel, accountants and other
authorized representatives full access during normal business hours to, and
furnish the Buyer and its representatives with, all properties, documents,
books, records, contracts, work papers and information with respect to the
Assets and the Business.
4.1.2. Further Assurances. Following the Closing Date, the Sellers
shall, and shall cause each of its Affiliates to, from time to time, execute and
deliver such additional instruments, documents, conveyances or assurances and
take such other actions as shall be necessary, or otherwise reasonably requested
by the Buyer, to confirm and assure the rights and obligations provided for in
the Agreement and in the Collateral Agreements and render effective the
consummation of the transactions contemplated thereby.
4.1.3. Conduct of Business Pending Closing. The Sellers agree that
from the date hereof until the Closing Date, except as otherwise approved in
writing to the Buyer:
(a) Maintain Business and Organization. The Sellers will carry
on the Business in the ordinary course consistent with past practice and, to the
extent consistent therewith, will use their reasonable best efforts to maintain
and preserve their respective business organizations intact and to maintain
their current relationships with customers, suppliers, employees and others
having business relationships with the Sellers.
(b) Compensation. The Sellers will not (i) enter into any
employment or severance agreement with any director, officer or other employee
of the Sellers; (ii) establish, adopt, enter into or make any new grants or
awards under, or amend, any collective bargaining, bonus, profit sharing,
thrift, compensation or other plan, agreement, trust, fund, policy or
arrangement for the benefit of any directors, officers or employees, except to
comply with ERISA and the Code; or (iii) give any increases in the rates of
salary or other compensation payable to employees.
(c) No Material Contracts. No contract or commitment will be
entered into, and no purchase of supplies and no sale of assets (real, personal,
or mixed, tangible or intangible) will be made, by or on behalf of the Sellers
in connection with the Business, except (i) contracts or commitments for the
purchase of Inventories made in the ordinary course of business consistent with
past practice, (ii) contracts or commitments for the sale of Inventories in the
ordinary course of business consistent with past practice, and (iii) other
contracts, commitments, purchases or sales in the ordinary course of business
consistent with past practice which are not material to the Sellers or the
Business.
-9-
(d) Capital Expenditures. The Sellers will not make any
capital expenditures or commitments therefor, for additions to property, plant
or equipment in connection with or for use in the Business, or agree to make any
such expenditures or commitments, except pursuant to existing expenditure or
commitment programs in a manner consistent with the performance of such programs
to date.
(e) Issuance of Stock. The Sellers will not grant any stock
options or other rights to acquire the Sellers' stock and will not issue or in
any way dispose of any shares of the Sellers' stock.
(f) No Corporate Changes. The Sellers will not amend their
certificates of incorporation or by-laws or make any changes to their authorized
or issued capital stock.
(g) Indebtedness. The Sellers will not create any
indebtedness, other than short-term indebtedness incurred in the ordinary course
of business consistent with past practices pursuant to existing contracts.
(h) Maintenance of Insurance. The Sellers will use their best
efforts, consistent with past practice and prudent business judgment, to
maintain all of the insurance held by the Sellers in effect as of the date
hereof.
(i) Maintenance of Property. The Sellers will use, operate,
maintain and repair all property of the Business in a normal business manner
consistent with past practice.
(j) Loans and Advances. The Sellers will not make any loan or
advance to any Person, including, without limitation, any officer, director or
employee of the Sellers.
4.1.4. Consents. The Sellers will use their reasonable best efforts
prior to the Closing Date to obtain all Governmental Approvals and Consents,
including but not limited to those identified on Schedule 3.1.5(b), necessary
for the consummation of the transactions contemplated hereby.
4.1.5. Bankruptcy Court Order. The Sellers shall obtain a Final
Order from the Bankruptcy Court approving the Bidding Procedures.
4.1.6. Schedules. The Sellers shall have a continuing obligation to
promptly notify the Buyer in writing with respect to any matter arising or
discovered after the date of execution of the Agreement, which matter, if
existing and known at the date hereof, would have been required to be set forth
or described in any Schedule to the Agreement.
4.1.7. Access to Records. From and after the Closing Date, the
Sellers shall allow the Buyer and it counsel, accountants and other
representatives, such access to records which after the Closing Date are in the
custody or control of the Sellers as the Buyer reasonably
-10-
requires in order to comply with its obligations under the law or under
contracts assumed by the Buyer pursuant to the Agreement.
4.2. Covenants of the Buyer. The Buyer covenants and agrees to comply with
the following:
4.2.1. Further Assurances. Following the Closing, the Buyer shall,
from time to time, execute and deliver such additional instruments, documents,
conveyances or assurances and take such other actions as shall be necessary, or
otherwise reasonably requested by the Sellers, to confirm and assure the rights
and obligations provided for in the Agreement, and in the Collateral Agreements
and render effective the consummation of the transactions contemplated thereby.
ARTICLE V
CONDITIONS PRECEDENT
5.1. Conditions to Obligations of Each Party. The obligations of the
parties to consummate the transactions contemplated hereby shall be subject to
the fulfillment on or prior to the Closing Date of the following conditions:
5.1.1. No Injunction, etc. Consummation of the transactions
contemplated hereby shall not have been restrained, enjoined or otherwise
prohibited by any Applicable Law, including any order, injunction, decree or
judgment of any court or other Governmental Authority. No court or other
Governmental Authority shall have determined that any Applicable Law makes
illegal the consummation of the transactions contemplated hereby or by the
Collateral Agreements, and no proceeding with respect to the application of any
such Applicable Law to such effect shall be pending.
5.2. Conditions to Obligations of the Buyer. The obligations of the Buyer
to consummate the transactions contemplated hereby shall be subject to the
fulfillment (or waiver by the Buyer) on or prior to the Closing Date of the
following additional conditions, which the Sellers agree to use reasonable good
faith efforts to cause to be fulfilled:
5.2.1. AGR Assumption Agreement. The AGR Assumption Agreement shall
have been signed and executed by duly authorized individuals of each of the
respective parties to the AGR Assumption Agreement.
5.2.2. Consents. The Sellers shall have obtained and shall have
delivered to the Buyer copies of (i) all Governmental Approvals required to be
obtained by the Sellers in connection with the execution and delivery of the
Agreement and the Collateral Agreements and the consummation of the transactions
contemplated thereby, and (ii) all Consents necessary to be obtained in order to
consummate the sale and transfer of the Assets pursuant to the Agreement and the
consummation of the other transactions contemplated thereby and by the
Collateral Agreements.
5.2.3. Proceedings. All proceedings of the Sellers in connection
with the Agreement and the Collateral Agreements and the transactions
contemplated thereby, and all
-11-
documents and instruments incident thereto, shall be reasonably satisfactory in
substance and form to the Buyer and its counsel, and the Buyer and its counsel
shall have received all such documents and instruments, or copies thereof,
certified if requested, as may be reasonably requested.
5.2.4. Collateral Agreements. The Sellers shall have delivered to
the Buyer at the Closing Date all documents, certificates and agreements
necessary to transfer to the Buyer good and marketable title to the Assets, free
and clear of any and all Liens thereon, including without limitation:
(a) a xxxx of sale, assignment and general conveyance, in form
and substance reasonably satisfactory to the Buyer, dated the Closing Date, with
respect to the Assets; and
(b) assignments of certain Contracts as the Buyer shall
request, Intellectual Property Assets and any other agreements and instruments
constituting Assets, dated the Closing Date, assigning to the Buyer all of the
Sellers' right, title and interest therein and thereto, with any required
Consent endorsed thereon (collectively, the "Collateral Agreements").
5.2.5. AGR Loan Agreement. The Buyer shall have entered into a loan
agreement with AGR (the "AGR Loan Agreement") providing for, among other things,
the sale of accounts receivable by the Buyer to AGR.
5.2.6. Consulting Agreement. The Buyer shall have entered into a
Consulting Agreement with Xxxxxxx Xxxxxxx whereby Xxxxxxx Xxxxxxx will provide
consulting services to the Buyer for a minimum term of 6 months following the
Closing Date.
5.3. Conditions to Obligations of the Sellers. The obligation of the
Sellers to consummate the transactions contemplated hereby shall be subject to
the fulfillment by the Sellers (or, with respect to Section 5.3.1 only, waiver
by the Sellers) on or prior to the Closing Date, of the following additional
conditions, which the Buyer agrees to use reasonable good faith efforts to cause
to be fulfilled:
5.3.1. Proceedings. All proceedings of the Buyer in connection with
the Agreement and the Collateral Agreements and the transactions contemplated
thereby, and all documents and instruments incident thereto, shall be reasonably
satisfactory in substance and form to the Sellers, and their counsel, and the
Sellers and their counsel shall have received all such documents and
instruments, or copies thereof, certified if requested, as may be reasonably
requested.
5.3.2. Consents and Approvals. The Sellers shall have obtained all
Governmental Approvals necessary to consummate the transactions contemplated
hereby.
5.3.3. Competing Bids. The Sellers shall not have received any
higher or better offers at the Bankruptcy Court hearing (the "Hearing") on the
approval of the Sale; provided,
-12-
however, that any bids submitted at the Hearing must be made subject to bidding
procedures approved by Order of the Bankruptcy Court (the "Bidding Procedures").
ARTICLE VI
TERMINATION
6.1. Termination. The Agreement may be terminated at any time prior to the
Closing Date by the written agreement of the Buyer and the Sellers.
6.2. Effect of Termination. In the event of the termination of the
Agreement pursuant to the provisions of Section 6.1, the Agreement shall become
void and have no effect, without any liability to any Person in respect hereof
or of the transactions contemplated hereby on the part of any party hereto, or
any of its directors, officers, employees, agents, consultants, representatives,
advisers or stockholders, except as specified in Section 9.1.
ARTICLE VII
DEFINITIONS
7.1. Definition of Certain Terms. The terms defined in this Section 7.1,
whenever used in the Agreement (including the Schedules), shall have the
respective meanings indicated below for all purposes of the Agreement. All
references herein to a Section, Article or Schedule are to a Section, Article or
Schedule of or to the Agreement, unless otherwise indicated.
Affiliate: of a Person means a Person that directly or indirectly
through one or more intermediaries, controls, is controlled by, or is
under common control with, the first Person. "Control" (including the
terms "controlled by" and "under common control with") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of a person, whether through the
ownership of voting securities, by contract or credit arrangement, as
trustee or executor, or otherwise.
AGR: as defined in the second WHEREAS clause of the Agreement.
AGR Assumption Agreement: as defined in Section 2.4(a)(i).
Agreement: this Asset Purchase Agreement, including the Exhibits and
Schedules hereto.
AGR Loan Agreement: as defined in Section 5.2.5.
Applicable Law: all applicable provisions of all (i) constitutions,
treaties, statutes, laws (including the common law), rules, regulations,
ordinances, codes or orders of any Governmental Authority, (ii)
Governmental Approvals and (iii) orders, decisions, injunctions,
judgments, awards and decrees of or agreements with any Governmental
Authority.
-00-
X/X Xxxxxxxxxx: as defined in the second WHEREAS clause of the
Agreement.
Assets: as defined in Section 1.1.
Assignment of Lease: as defined in Section 5.2.4(b).
Assumed Liabilities: as defined in Section 2.4(a).
Assumption Agreement: as defined in Section 2.4(b).
Bankruptcy Court: United States Bankruptcy Court for the District of
New Jersey.
Bidding Procedures: as defined in Section 5.3.3.
Business: as defined in the first WHEREAS clause of the Agreement.
Buyer: as defined in the first paragraph of the Agreement.
Closing Date: as defined in Section 2.1.
Collateral Agreements: the agreements and other documents and
instruments described in Section 5.2.4.
Consent: any consent, approval, authorization, waiver, permit,
grant, franchise, concession, agreement, license, exemption or order of
registration, certificate, declaration or filing with, or report or notice
to, any Person, including but not limited any Governmental Authority.
Contract: all agreements and contracts related to the Business,
whether oral or written.
Excluded Assets: as defined in Section 1.2.
Excluded Liabilities: as defined in Section 2.4(c).
Field Employees: employees of the Sellers who work for clients of
the Sellers and who have accrued vacation or holiday time or pay based
upon the number of hours worked for such clients.
Financial Statements: as defined in Section 3.1.4.
GAAP: generally accepted accounting principles as in effect in the
United States.
Governmental Approval: any Consent of, with or to any Governmental
Authority, necessary for, or otherwise material to, the conduct of the
Business or necessary for the consummation of the transactions
contemplated hereby, including, but not limited to,
-14-
approval (i) of the Sale by Final Order of the Bankruptcy Court in the
Sellers' pending Chapter 11 cases, case numbers 97-30912 (KCF), 97-30907
(KCF), 97-30910 (KCF), pursuant to 11 U.S.C. ss. 363(b)(1) and (f), as
applicable; (ii) by Final Order of the Bankruptcy Court of the assumption
and assignment by the Sellers to the Buyer of the Sellers' interests in
any and all executory contracts and unexpired leases subject to the Sale,
pursuant to 11 U.S.C. ss. 365, both of which Orders shall be in form and
substance satisfactory to the Buyer; and (iii) of the Bidding Procedures
by Final Order of the Bankruptcy Court.
Governmental Authority: any nation of government, any state or other
political subdivision thereof, any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government, including, without limitation, any government
authority, agency, department, board, commission or instrumentality of the
United States, any State of the United States or any political
subdivision, thereof, and any tribunal or arbitrator(s) of competent
jurisdiction, and any self-regulatory organization.
Hearing: as defined in Section 5.3.3.
Intellectual Property: any and all United States and foreign: (a)
patents (including design patents, industrial designs and utility models)
and patent applications (including docketed patent disclosures awaiting
filing, reissues, divisions, continuations-in-part and extensions), patent
disclosures awaiting filing determination, inventions and improvements
thereto; (b) trademarks, service marks, trade names, trade dress, logos,
business and product names, slogans, whether under common law or
registered in the United States Patent and Trademark Office, and
registrations and applications for registration thereof; (c) copyrights
(including software) and registrations thereof; (d) inventions, processes,
designs, formulae, trade secrets, know-how, industrial models,
confidential and technical information, manufacturing, engineering and
technical drawings, product specifications and confidential business
information; (e) intellectual property rights similar to any of the
foregoing; and (f) copies and tangible embodiments thereof (in whatever
form or medium, including electronic media).
Intellectual Property Assets: all of the Assets that constitute
Intellectual Property to which the Sellers have rights.
Internal Revenue Code: the Internal Revenue Code of 1986, as
amended, and the rules and regulations thereunder.
Lease: as defined in Section 3.1.11.
Lien: any mortgage, pledge, hypothecation, right of others, claim,
security interest, encumbrance, lease, sublease, license, occupancy
agreement, adverse claim or interest, easement, covenant, encroachment,
burden, title defect, title retention agreement, voting, trust agreement,
interest, equity, option, lien, right of first refusal, charge or other
-15-
restrictions or limitations of any nature whatsoever, including but not
limited to such as may arise under any Contracts.
1997 Balance Sheets: as defined in Section 3.1.4.
Order: as defined in Section 3.1.9.
Person: any natural person, firm, partnership, association,
corporation, company, trust, business trust, Governmental Authority or
other entity.
Purchase Price: as defined in Section 2.2.
Sale: as defined in Section 1.1.
Sellers: as defined in the first paragraph of the Agreement.
Subsidiaries: each corporation or other Person in which a Person
owns or controls, directly or indirectly, capital stock or other equity
interests representing at least 50% of the outstanding voting stock or
other equity interests.
Tax: any federal, state, provincial, local, foreign or other income,
alternative minimum, accumulated earnings, personal holding company,
franchise, capital stock, net worth, capital, profits, windfall profits,
gross receipts, value added, sales, use, goods and services, excise,
customs duties, transfer, conveyance, mortgage registration, stamp,
documentary, recording, premium, severance, environmental (including taxes
under Section 59A of the Code), real property, personal property, ad
valorem, intangibles, rent, occupancy, license, occupational, employment,
unemployment insurance, social security, disability, workers'
compensation, payroll, health care, withholding, estimated or other
similar tax, duty or other governmental charge or assessment or
deficiencies thereof (including all interest and penalties thereon and
additions thereto whether disputed or not).
Transfer Taxes: as defined in Section 2.4(a)(vi).
ARTICLE VIII
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
8.1. Survival of Representations and Warranties, etc. The representations
and warranties contained in the Agreement shall survive the execution and
delivery of the Agreement, any examination by or on behalf of the parties hereto
and the completion of the transactions contemplated herein, for a period of
three years following the Closing Date.
-16-
ARTICLE IX
MISCELLANEOUS
9.1. Expenses. The Sellers, on the one hand, and the Buyer, on the other
hand, shall bear their respective expenses, costs and fees (including
attorneys', auditors' and financing commitment fees) in connection with the
transaction contemplated hereby, including the preparation, execution and
delivery of the Agreement and compliance herewith, whether or not the
transactions contemplated hereby shall be consummated.
9.2. Severability. If any provision of the Agreement, including any
phrase, sentence, clause, Section or subsection is inoperative or unenforceable
for any reason, such circumstances shall not have the effect of rendering the
provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein contained
invalid, inoperative, or unenforceable to any extent whatsoever.
9.3. Notices. All notices, requests, demands, waivers and other
communication required or permitted to be given under the Agreement shall be in
writing and shall be deemed to have been duly given if (a) delivered personally,
(b) mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid, or (c) sent by next-day or overnight mail or
delivery or (d) sent by telecopy or telegram.
(i) if to the Buyer to,
Stratus Services Group, Inc.
000 Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, President
with a copy to:
Crummy, Del Deo, Dolan, Griffinger & Xxxxxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxxx, Xx., Esq.
(ii) if to the Sellers,
Royalpar Industries, Inc.
000 Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, President
or, in each case, at such other address as may be specified in writing to the
other parties hereto.
All such notices, requests, demands, waivers and other communications
shall be deemed to have been received (w) if by personal delivery on the date
after such delivery, (x) if by certified or registered mail, on the seventh day
after the mailing thereof, (y) if by next-day or overnight mail or delivery, on
the day delivered, (z) if by telecopy or telegram, on the next day
-17-
following the day on which such telecopy or telegram was sent, provided that a
copy is also sent by certified or registered mail.
9.4. Headings. The headings contained in the Agreement are for purposes of
convenience only and shall not affect the meaning or interpretation of the
Agreement.
9.5. Entire Agreement. The Agreement (including all Exhibits and the
Schedules hereto and all agreements or covenants therein) and the Collateral
Agreements (when executed and delivered) constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
9.6. Counterparts. The Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which shall
together constitute one and the same instrument.
9.7. Governing Law, etc. The Agreement shall be governed in all respects,
including as to validity, under the laws of the State of New Jersey, without
giving effect to the conflict of laws rules thereof. The Buyer and the Sellers
hereby irrevocably submit to the jurisdiction of the courts of the State of New
Jersey and the Federal courts of the United States of America located in the
State of New Jersey, solely in respect of the interpretation and enforcement of
the provisions of the Agreement and of the documents referred to in the
Agreement, and hereby waive, and agree not to assert, as a defense in any
action, suit or proceeding for the interpretation or enforcement hereof or of
any such document, that is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that the
venue thereof may not be appropriate or that the Agreement or any of such
document may not be enforced in or by said courts, and the parties hereto
irrevocably agree that all claims with respect to such action or proceeding
shall be heard and determined in such a New Jersey State or Federal court. The
Buyer and the Sellers hereby consent to and grant any such court jurisdiction
over the person of such parties and over the subject matter of any such dispute
and agree that mailing of process or other papers in connection with any such
action or proceeding in the manner provided in Section 9.3, or in such other
manner as may be permitted by law, shall be valid and sufficient service
thereof.
9.8. Binding Effect. The Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors and
permitted assigns.
9.9. Assignment. The Agreement shall be freely assignable or transferable
by the Buyer to, and shall inure to the benefit of, and be binding upon any
other corporate entity that shall succeed to the business presently being
operated by the Buyer. This Agreement shall not be assignable by the Sellers
without the prior written consent of the Buyer.
9.10. No Third Party Beneficiaries. Nothing in the Agreement shall confer
any rights upon any person or entity other than the parties hereto and their
respective heirs, successors and permitted assigns.
-18-
9.11. Amendment; Waivers, etc. No amendment, modification or discharge of
the Agreement, and no waiver hereunder, shall be valid or binding unless set
forth in writing and duly executed by the party against whom enforcement of the
amendment, modification, discharge or waiver is sought. Any such waiver shall
constitute a waiver only with respect to the specific matter described in such
writing and shall in no way impair the rights of the party granting such waiver
in any other respect or at any other time. Neither the waiver by any of the
parties hereto of a breach of or a default under any of the provisions of the
Agreement, nor the failure by any of the parties, on one or more occasions, to
enforce any of the provisions of the Agreement or to exercise any right or
privilege hereunder, shall be construed as a waiver of any other breach or
default of a similar nature, or as a waiver of any of such provisions, rights or
privileges hereunder. The rights and remedies herein provided are cumulative and
are not exclusive of any rights or remedies that any party may otherwise have at
law or in equity. The representations and warranties of the Sellers shall not be
affected or deemed waived by reason of any investigation made by or on behalf of
the Buyer (including but not limited to by any of its advisors, consultants or
representatives) or by reason of the fact that the Buyer or any of such
advisors, consultants or representatives knew or should have known that any such
representation or warranty is or might be inaccurate.
IN WITNESS WHEREOF, the parties have duly executed the Agreement as of the
date first above written.
STRATUS SERVICES GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name:
Title: President
ROYALPAR INDUSTRIES, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name:
Title: President & CEO
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XXXXX TECHNICAL DESIGN, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name:
Title: President & CEO
LPL TECHNICAL SERVICE, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name:
Title: President
MAINSTREAM ENGINEERING COMPANY, INC.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name:
Title: President
-20-
Schedule 1.1
Assets
Royalpar Industries, Inc.
Furniture & Equipment at Manalapan,
NJ Office
Office Furniture
Telephone System
Personal Computers, Printers, Etc.
Xxxxx Technical Design, Inc.
Canon Copier at Manalapan, NJ Office
Personal Computer at Colorado
Springs, CO Office
LPL Technical Service, Inc.
Security Deposits:
Xxxx Xxxxx-Deer Park, TX Office
XxXxxxxx Equities- Phoenix, AZ Office
Telephone System at Deer Park, TX Office
Personal Computers, Printers, Etc.:
Phoenix, AZ Office
Deer Park, TX Office
Richardson, TX Office
Mainstream Engineering Co., Inc.
Security Deposit with California Sunbelt
Developers, Inc. for Costa Mesa, CA Office
Personal Computers, Printers, Etc. at
Costa Mesa, CA Office
Schedule 1.1 (cont'd)
Assets
As to each Seller:
List of clients of each Seller
Information on clients under the control of each Seller
Information on each employee of each Seller
Books and records of each Seller
Relationship with clients of each Seller, including related contracts,
agreements or understandings
Schedule 1.2
Excluded Assets
As to each Seller:
All accounts receivable, insurance refunds, cash on hand or in Seller's
bank accounts, Seller's interest in amounts due to the Sellers under any
accounts receivable financing or purchase agreements; and any interests of the
Seller in the real or personal property leaseholds or under the executory
contracts not listed on Schedule 2.4(a).
Schedule 2.4(a)
Executory Contracts and Unexpired Leases of Royalpar Industries, Inc.
Sanwa Leasing Corp. Lease agreement #179586 for 2 Fujitsu
XX Xxx 0000 notebook computers. Lease has a $1.00
Xxxx, XX 00000-0000 buyout option and is for 36 months
beginning January 1997 at $249.68 per
month.
Royal Insurance Group Commercial package insurance policy
XX Xxx 0000 for a one-year term commencing June
Xxxxxxxxx, XX 00000-0000 23, 1997.*
Royal Insurance Group Electronic data processing insurance
policy for a one-year term commencing
June 23, 1997.*
Royal Insurance Group Commercial automobile insurance policy
for a one-year term commencing June
23, 1997.*
Royal Insurance Group Workers' compensation insurance policy
for a one-year term commencing June
23, 1997.*
Royal Insurance Group Commercial umbrella insurance policy
for a one-year term commencing June
23, 1997.*
The Chubb Group Excess umbrella insurance policy for a
00 Xxxxxxxx Xxxx Xxxx one-year term commencing June 23,
Xxxxxx, XX 00000 1997.*
* Each of these insurance contracts, which are not executory because they were
entered into post-petition, but are part of the Acquired Assets, also names
Xxxxx Technical Design, Inc., LPL Technical Service, Inc., and Mainstream
Engineering Company, Inc. as an insured.
Schedule 2.4(a) (cont)
Executory Contracts and Unexpired Leases of Xxxxx Technical Design, Inc.
Cactus Iron Works Ongoing contract for staffing and
XX Xxx 000 payroll services provided by Xxxxx
Xxxxxxxx, XX 00000 Technical Design, Inc.
El Paso County Ongoing Contract for staffing and
Purchasing Department payroll services provided by Xxxxx
27 East Vermijo Technical Design, Inc.
Xxxxxxxx Xxxxxxx, XX 00000
Landhuis Co. Lease for office space at 212 Wahsa,
000 Xxxxxxx Xxxxx Xxxxxxxx Xxxxxxx, XX. lease due to
Xxxxxxxx Xxxxxxx, XX 00000 expire on July 31, 1999.
Loral Aerospace Corp. Ongoing Contract for staffing and
0000 Xxxxxxx Xxxxx payroll services provided by Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000 Technical Design, Inc.
Mastercraft Millsworks and Cabinet Ongoing Contracts for staffing and
Co., Inc. payroll services provided by Xxxxx
1406 Three Points Technical Design, Inc.
Xxxxxxxxxxx, XX 00000
Schedule 2.4(a) (cont)
Executory Contracts and Unexpired Leases of LPL Technical Service, Inc.
AT&T Credit Corporation Lease for telephone system at Phoenix,
XX Xxx 00000 XX xxxxxx, which was moved from old
Xxxxxxxxxx, XX 00000 Austin, TX, office. Lease is for 36
months at $107.29 per month beginning
February 1995.
Advanced Copy Systems Inc. Lease of copier at Phoenix, AZ office
XX Xxx 000000 for 48 months at $126.16 per month
Xxxxxxx, XX 0000-0000 beginning August 1996.
Xxxxx Xxxxx Co. Lease for office space in Xxxxxxxxxx,
000 X. X Xxxxxx XX.
Xxxx Xxxx, XX 00000
Schedule 3.2.3
Order(s) of the United States Bankruptcy Court for the District of New
Jersey in the Sellers' pending chapter 11 cases, case numbers 97-30912 (KCF),
97-30907 (KCF), 97-30910 (KCF), in form and substance satisfactory to the Buyer,
authorizing and approving (i) the Sale of the Assets to Buyer pursuant to 11
U.S.C. ss. 363(b)(1) and (f), as applicable; (ii) the assumption and assignment
by the Sellers to the Buyer of the Sellers' interests in any and all executory
contracts and unexpired leases subject to the Sale, pursuant to 11 U.S.C. ss.
365; and (iii) the Bidding Procedures.
Schedule 3.2.4
None
Schedule 3.2.5
None