Exhibit 10.16
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made this ___ day of
November, 1998 by and between IT STAFFING, LTD., a corporation duly organized
under the laws of the Province of Ontario and authorized to conduct business in
the State of New York ("Buyer") and SOUTHPORT CONSULTING CO., a corporation duly
organized under the laws of the State of New Jersey ("Seller").
WHEREAS Seller is the owner of certain assets used in connection with
the operation of its business; and
WHEREAS Buyer desires to purchase the hereinafter described assets of
Seller pursuant to the terms and conditions set forth herein; and
WHEREAS Seller desires to sell and transfer such assets to Buyer
pursuant to the terms and conditions set forth herein:
NOW, THEREFORE, for and in consideration of the premises and mutual
promises and covenants hereinafter contained, it is agreed between Buyer and
Seller as follows:
1. SALE OF ASSETS
Subject to the terms and conditions set forth herein, Seller shall
sell, assign, convey, transfer and set over to Buyer, and Buyer shall purchase,
assume and accept from Seller, free and clear of any and all liens, claims,
encumbrances, liabilities, obligations, security interests and debts, full and
complete title to the following tangible and intangible properties and assets of
Seller, wherever located, as more particularly set forth on Schedule 1(i) (the
"Assets"). The Assets are all of the Assets necessary to enable Buyer to
operate the business related to the Assets. In that
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connection, on the date of the closing of the transactions contemplated herein
(the "Closing"), Seller shall deliver to Buyer: (i) a xxxx of sale in the form
of Exhibit 1(i) covering the Assets; and (ii) an assignment of the trade name
Southport Consulting. The Purchase Price (as hereinafter defined) shall be
allocated as set forth on Schedule 1(i).
2. LIABILITIES.
Buyer does not hereby and shall not at any time assume any liabilities
or obligations of Seller of any nature whatsoever.
3. PURCHASE PRICE.
3.1 As consideration for the Assets being purchased hereby, subject
to adjustment as provided in Paragraph 3.1(c) hereinbelow, Buyer shall pay to
Seller or any designee(s) of Seller the sum of Two Hundred Fifty Thousand United
States Dollars (USD$250,000) (the "Purchase Price"):
(a) Fifty Thousand United States Dollars (USD$50,000) by bank or
certified check or by wire transfer of funds upon the execution hereof; and
(b)(i) in the event that certain registration statement bearing
number 333-___________ becomes effective on or before January 29, 1999 (the
"Registration Statement"), that number of shares of unregistered common stock of
Buyer ("IT Shares") equal to Two Hundred Thousand United States Dollars
(USD$200,000) based upon the offering price per share set forth in the
Registration Statement. Such IT Shares shall be recorded on the books and
records of Buyer and shall be delivered to the Seller simultaneously with the
execution hereof; or
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(b)(ii) in the event that the Registration Statement does not become
effective on or before January 29, 1999, Buyer shall pay and deliver to Seller,
on February 1, 1999, Fifty Thousand (50,000) IT Shares.
(c) In the event that Buyer furnishes consideration to Seller in the
form described in Paragraph 3.1(b) above and on each date that Seller is first
permitted to sell IT Shares pursuant to Rule 144 and any applicable contractual
arrangement (each such date being hereinafter referred to as a "Sale Date"), and
the value of the IT Shares available for sale on such Sale Date is less than
Five United States Dollars (USD$5.00) per share (the "Target Price Per Share"),
unless the price to the public pursuant to the Registration Statement is less
than Five United States Dollars (USD$5.00) per share, in which case the Target
Price Per Share shall be the price to the public at the Buyer's initial public
offering pursuant to the Registration Statement, subject to notice to be
furnished to Buyer pursuant to Paragraph 3(d) hereinbelow, Buyer shall, on each
such date, deliver to Seller, at Buyer's option, (i) cash or that number of
registered shares of common stock of the Seller equal to the difference between
(A) the number of IT Shares available for sale on the applicable Sale Date
multiplied by the Target Price Per Share, and (B) the value of said shares on
the applicable Sale Date as determined by the closing bid on the applicable Sale
Date if the Registration Statement became effective, or by the book value of
Buyer on said date in the event that the Registration Statement did not become
effective (either such valuation being hereinafter referred to as the "Market
Price"), or (ii) Two Hundred Thousand United States Dollars (USD$200,000) in
exchange for the IT Shares delivered to Seller under paragraphs 3(b)(i) or
3(b)(ii), as applicable.
(d) In the event that the Target Price Per Share is less than the
Market Price per share, Seller shall furnish to Buyer notice thereof within Ten
(10) business days following the
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applicable Sale Date which notice shall set forth the amount of cash and IT
Shares owed by Buyer to Seller. Buyer shall pay and deliver to Seller, within
Ten (10) business days following receipt of said notice, at Buyer's option, the
cash, by certified check or wire transfer of funds, or a certificate
representing the applicable number of IT Shares.
(e) All IT Shares delivered to Seller under this Agreement shall be
subject to the
same limitations in connection with transferability and registration rights as
those of senior management of the Buyer; provided, however, that Buyer shall (i)
not permit said rights to be any more restrictive to Seller as same exist on the
date hereof, and (ii) cause Seller to be furnished with tag-along rights,
drag-along rights, and registration rights and the like on the same terms and at
the same time(s) as same may be offered to senior management of the Buyer from
time to time.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER. Seller
represents, warrants, and covenants to Buyer as follows:
4.1 EXISTENCE/AUTHORIZATION. Seller is a corporation duly organized
and validly existing under the laws of the State of New Jersey. Seller has the
corporate power to own and operate its properties and the Assets and to carry on
its business as it is now being conducted. Seller conducts business only in New
York and New Jersey and is not authorized and has not applied to become
authorized to conduct business in any other jurisdiction.
4.2 CORPORATE POWER. Seller has full power and authority to
execute and deliver this Agreement and such other agreements and instruments to
be executed and delivered by it pursuant hereto, and to consummate the
transactions contemplated hereby and thereby. All corporate acts and other
proceedings required to be taken by or on the part of Seller to authorize it
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to execute, deliver and perform this Agreement and such other agreements,
instruments and transactions contemplated hereby have been duly and properly
taken.
4.3 BINDING OBLIGATION. This Agreement has been duly executed and
delivered by Seller and constitutes, and such other agreements and instruments
contemplated hereby when duly executed and delivered by Seller will constitute,
legal, valid and binding obligations of Seller enforceable in accordance with
their respective terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting the enforcement of creditors' rights generally from time to time in
effect, and subject to any equitable principles limiting the right to obtain
specific performance of certain obligations of Seller hereunder and thereunder.
4.4 SECURITIES ACT.
(a) Seller is acquiring the IT Shares for its own account for
investment and not with a view to the distribution thereof within the meaning of
the United States Securities Act of 1933 (the "Act").
(b) Seller understands that the IT Shares have not been
registered under the Act by reason of their issuance by the Buyer in a
transaction exempt from the registration requirements of the Act and that the IT
Shares must be held by Seller for a period of at least one (1) year unless
registered under the Act or exempt from registration thereunder.
(c) Seller further understands that the exemption from registration
afforded by Rule 144 (the provisions of which are known to Seller) promulgated
under the Act depends on the satisfaction of various conditions, and that, if
applicable, sales made pursuant to Rule 144 may only be made in limited amounts.
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(d) In addition to complying with all applicable restrictions
and other provisions in this Agreement, Seller represents and warrants to Buyer
that it will not transfer any of the IT Shares except in compliance with United
States federal and applicable state securities laws.
(e) It is understood and agreed that the certificates evidencing
the IT Shares will bear a legend stating, in addition to any other applicable
legend, in substance:
"The securities represented hereby have not been registered under
the Securities Act of 1933, as amended. They may not be sold,
offered for sale, pledged, hypothecated or otherwise disposed of
unless they are registered under the Act or an exemption from
registration is available."
4.5 TITLE TO ASSETS. Seller has good and valid title to all of the
Assets, free and clear of all mortgages, liens, or encumbrances. The
performance by Seller of its obligations hereunder will vest in the Buyer full
and complete title in and to the Assets, free and clear of any and all liens,
claims and encumbrances.
4.6 CUSTOMER INFORMATION. At the Closing, Seller shall deliver to
Buyer files containing complete and accurate customer lists and customer
databases used by or for Seller (the "Customer Information") as of Closing. The
Customer Information will set forth the name and address of all of Seller's
customers as of the date of the Closing.
4.7 INTELLECTUAL PROPERTY. Southport Consulting is the only trade
name employed by Seller.
4.8 FINANCIAL STATEMENTS.
(a) Seller has heretofore delivered to Buyer its unaudited
balance sheet (the "1996 and 1997 Balance Sheet") for the years ended December
31, 1996 and 1997 and the
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related statement of income and retained earnings (collectively the "1996 and
1997 Financial Statements").
(b) The 1996 and the 1997 Financial Statements have been
prepared in accordance with the books and records of Seller.
(c) From January 1, 1998 through the date of the Closing (the
"Closing Date"), Seller has conducted its business and affairs prudently and in
a consistent manner. 4.9 COMPLIANCE WITH APPLICABLE LAWS. To
the best of Seller's knowledge, Seller and the Assets are in material compliance
with all applicable statutes, laws, ordinances, rules and regulations of any
governmental authority or instrumentality, domestic or foreign.
4.10 RECORDS AND SYSTEMS. All data and information of the
business relating to the Assets of Seller are recorded, stored, maintained or
operated or otherwise held by Seller, are included in the Assets, and are not
wholly or partly dependent on any facilities which are not under the exclusive
ownership or control of Seller.
4.11 SOFTWARE LICENSES. Seller is licensed to use all software
necessary to enable it to continue to conduct its business and use its
computerized records for the foreseeable future in the same manner in which they
have been used prior to the Closing Date. All such licenses to use are included
in the Assets, and Seller does not share any user rights in respect of such
software with any other person or entity, but consent is required to assign
Seller's rights in such licenses to Buyer. To the extent available to Seller,
Seller shall use reasonable efforts to cause all software licenses to be
transferred to Buyer.
4.12 BROKERS/FINDERS. Neither Seller nor any of Seller's directors,
employees or agents has employed any broker, finder, investment banker or other
person and none of the foregoing
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has incurred any liability for any brokerage fees, commissions or finders' fees
in connection with the transactions contemplated hereby.
4.13 NON-COMPETITION. Seller shall cause Xxxxxxx Xxxxxxxx to
execute a non-competition agreement in the form of Exhibit 4.13 annexed hereto.
4.14 FINANCIAL SOPHISTICATION OF SELLER. The Seller has knowledge and
experience in financial and business matters such that it is capable of
evaluating the merits and risks, including the risk of loss, attendant to its
capacity as a stockholder in Buyer.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER.
Buyer hereby represents, warrants and covenants to Seller as of the
date hereof and at the Closing as follows:
5.1 EXISTENCE. Buyer is a corporation duly organized and validly
existing under the laws of the Province of Ontario. Buyer is authorized to
conduct business in the State of New York. Buyer has the corporate power to own
and operate its properties and to carry on its business as it is now being
conducted.
5.2 CORPORATE POWER. Buyer has full corporate power and authority to
execute and deliver this Agreement and such other agreements and instruments to
be executed and delivered by it pursuant hereto, and to consummate the
transactions contemplated hereby and thereby. All corporate acts and other
proceedings required to be taken by or on the part of the Buyer to authorize it
to execute, deliver and perform this Agreement and such other agreements,
instruments and transactions contemplated hereby have been duly and properly
taken.
5.3 BINDING OBLIGATION; GOVERNMENTAL CONSENTS. This Agreement has
been duly executed and delivered by Buyer and constitutes, and such other
agreements and instruments when
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duly executed and delivered by Buyer will constitute, legal, valid and binding
obligations of Buyer enforceable in accordance with their respective terms,
subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws affecting the
enforcement of creditors' rights generally from time to time in effect, and
subject to any equitable principles limiting the right to obtain specific
performance of certain obligations of Buyer hereunder and thereunder. All
consents of governmental and other regulatory authorities and of other parties
required to be received by or on the part of Buyer to enable it to enter into
and carry out this Agreement and the transactions contemplated hereby have been
obtained. Without limiting the foregoing, Buyer has made all such filings and
submissions which may be required under applicable law for Buyer to consummate
the transactions contemplated hereby. Neither the execution and delivery of
this Agreement nor the consummation by Buyer of the transactions contemplated
hereby will (i) violate or conflict with any of the provisions of the Articles
of Incorporation or By-laws of Buyer; or (ii) violate or constitute a default
under any note, bond, mortgage, indenture, contract, agreement, license or other
instrument or any order, judgment or ruling of any governmental authority to
which Buyer is a party or by which any of its properties are bound. No other
consent, approval, license, permit, or authorization of, or registration,
declaration or filing with, any state or federal court, administrative agency or
commission or other governmental authority or instrumentality, or of any other
third party, is required to be obtained or made by Buyer in connection with the
execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby other than those that may be required solely by reason of
Seller's or the Stockholders' (as opposed to any third party's) participation in
the transactions contemplated hereby.
5.4 RESTRICTIONS RELATING TO THE IT SHARES. Except for restrictions
on the transfer of the IT Shares in that they have not been registered under the
United States securities laws, good
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and marketable title to the IT Shares will pass to Seller, free and clear of any
claims, liens, encumbrances, security interests, options, charges or
restrictions whatsoever. The IT Shares are not subject to any voting trust
agreement or other contract, agreement, arrangement, commitment or
understanding, including any such agreement, arrangement, commitment or
understanding restricting or otherwise relating to the voting, dividend rights
or disposition of the IT Shares. Buyer shall cause the IT Shares and the
holder(s) thereof to have anti-dilution protection, pre-emptive rights and other
rights relating to the IT Shares on terms no less favorable to current
management and non-management shareholders of Buyer. Attached hereto as
Exhibit 5.4 are copies of all agreements and proposals relating to rights and
obligations of shareholders of Buyer including without limitation, shareholders
agreements, registration rights agreements and lock-up agreements.
5.5 CAPITAL STOCK. The IT Shares issued and to be issued pursuant
hereto are, or when issued will be, validly issued and outstanding and fully
paid. Upon the Closing, the Seller will be the registered holder of the IT
Shares issuable hereunder and to be delivered on the Closing Date. Such IT
Shares have not been and will not be issued in violation of, and are not subject
to, any preemptive or subscription rights. Except as set forth herein, there
are no outstanding warrants, options, agreements, subscriptions, convertible or
exchangeable securities or other commitments pursuant to which Seller is or may
become obligated to issue, sell, purchase, return or redeem any or all of the IT
Shares issued or issuable to it and there are no shares of capital stock.
5.6 THE IT SHARES. Upon Closing and upon each issuance hereunder,
the Seller will have, good, valid and legal title to the IT Shares issued to it,
free and clear of any claims, liens, encumbrances, options, charges or
restrictions whatsoever (except for any restrictions imposed by the Buyer's
underwriter underwriting the Registration Statement of Buyer's initial public
offering and by virtue of any of the IT Shares not being registered under the
Securities Act of 1933). At the
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Closing, good, valid and legal title to the IT Shares will pass to Seller, free
and clear of any claims, liens, encumbrances, options, charges or restrictions
whatsoever, except as provided herein. The IT Shares issuable hereunder are not
subject to any voting trust agreement or other contract, agreement, arrangement,
commitment or understanding, including any such agreement, arrangement,
commitment or understanding restricting or otherwise relating to the voting,
dividend rights or disposition of such IT Shares, except as disclosed herein.
6. INDEMNIFICATION.
6.1 INDEMNIFICATION BY SELLER. Seller hereby agrees to indemnify and
defend Buyer against and hold it harmless from any loss, liability, claim,
damage or expense (including reasonable legal fees and expenses) suffered or
incurred by Buyer to the extent arising from any breach of any representation,
warranty or covenant of the Seller contained in this Agreement and for any loss,
liability, claim, damage or expense (including reasonable legal fees and
expenses) suffered or incurred by Buyer to the extent arising from Seller's
conduct or omission occurring prior to the Closing Date. In addition, Seller
hereby agrees to indemnify Buyer against all liability for reasonable legal,
accounting and other fees and expenses directly attributable to any such
indemnification.
6.2 INDEMNIFICATION BY BUYER. Buyer hereby agrees to indemnify and
defend Seller against, and hold it harmless from, any loss, liability, claim,
damage or expense (including reasonable legal fees and expenses) suffered or
incurred by Seller to the extent arising from any breach of any representation,
warranty or covenant of Buyer set forth herein or arising from the conduct of
the business relating to the Assets after the Closing. In addition, Buyer
agrees to indemnify Seller from and against all liability for reasonable legal,
accounting and other fees and expenses directly attributable to any such
indemnification.
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6.3 PROCEDURES RELATING TO INDEMNIFICATION.
(a) In order for a party (the "Indemnified Party") to be
entitled to any indemnification provided for under Paragraph 6.1 or 6.2 of this
Agreement in respect of, arising out of, or involving a Claim (as hereinafter
defined) or demand made by any person, firm, governmental authority or
corporation against the Indemnified Party (a "Claim" or a "Third Party Claim"),
such Indemnified Party shall notify the indemnifying party as soon as
practicable following receipt of written notice of said Third Party Claim;
PROVIDED, HOWEVER, that the failure to give or delay in giving such notification
shall not affect the indemnification provided hereunder except to the extent the
indemnifying party shall have been actually prejudiced as a result of such
failure or delay. Thereafter, the Indemnified Party shall deliver to the
indemnifying party, as soon as practicable following the Indemnified Party's
receipt thereof, copies of all notices and documents (including court papers)
received by the Indemnified Party relating to the Third Party Claim. In
providing notice to the indemnifying party, the Indemnified Party acknowledges
its responsibility to provide said notice as promptly as possible in order that
the indemnifying party shall be able to engage counsel and to submit appropriate
answers to any Third Party Claim within the time period required by law.
(b) If a Third Party Claim is made against an Indemnified Party,
the indemnifying party shall assume the defense thereof with counsel selected by
the indemnifying party and reasonably acceptable to the Indemnified Party. The
Indemnified Party may participate in the defense of such Third Party Claim;
PROVIDED, HOWEVER, the indemnifying party will not be liable to the Indemnified
Party for legal expenses incurred by the Indemnified Party in connection with
such defense subsequent to the assumption thereof by the indemnifying party.
The indemnifying party shall be liable for the fees and expenses of counsel
employed by the Indemnified Party for any period
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during which the indemnifying party has not assumed the defense thereof. All of
the parties hereto shall cooperate in the defense or prosecution of any Third
Party Claim. Such cooperation shall include the retention and (upon the
indemnifying party's written request) the provision to the indemnifying party of
records and information which are reasonably relevant to such Third Party Claim,
and making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder. The
Indemnified Party shall not admit any liability with respect to, or settle,
compromise or discharge, such Third Party Claim without the indemnifying party's
prior written consent.
7. DURATION OF REPRESENTATIONS. The representations, warranties,
covenants and indemnities in this Agreement and in any other document delivered
in connection herewith shall survive the Closing of this Agreement and shall
terminate on the later of (i) the close of business on December 31, 1999, and
(ii) the final resolution of any claim, with respect to that claim, made on or
prior to December 31, 1999.
8. CONFIDENTIAL INFORMATION.
Each party agrees to maintain as confidential all information which is
delivered to it by the other and agrees further not to disclose the same to any
third party whatsoever or use any such information for any purpose except in
connection with the implementation of the undertakings of the parties described
herein.
9. CLOSING. The Closing of the transactions contemplated hereby shall
take place at the offices of Buyer, 000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxx,
Xxx Xxxx and shall occur on or about October 20, 1998.
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10. ANCILLARY DOCUMENTS AND RELATED ACTIONS OR CONDITIONS PRECEDENT TO
CLOSING. (a) The obligation of Buyer to consummate the transactions
contemplated herein and to perform its obligations hereunder on or prior to the
Closing Date is, at the option of Buyer, subject to the following conditions,
any or all of which may be waived by Buyer in whole or in part at or prior to
the Closing:
(i) no action or proceeding shall have been instituted or
threatened or claim or demand made against Buyer and/or Seller before any court
or other governmental body, seeking to restrain or prohibit, or to obtain
damages with respect to, the consummation of the transactions contemplated
hereby, or which, if adversely determined to Buyer and/or Seller, might have a
material adverse effect on the Assets or the business, operations or prospects
of Buyer or Seller;
(ii) Seller shall deliver to Buyer evidence satisfactory to
Buyer that the name of Seller has been changed; and
(iii) Xxxxxxx Xxxxxxxx shall execute a Non-Competition Agreement
in the form of Exhibit 4.13 annexed hereto.
(b) The obligation of Seller to consummate the transactions
contemplated herein and to perform their obligations hereunder on and after the
Closing Date is, at the option of the Seller, subject to the following
conditions, any or all of which may be waived by Seller in whole or in part at
or prior to the Closing:
(i) no action or proceeding shall have been instituted or
threatened or claim or demand made against Buyer and/or Seller before any court
or other governmental body, seeking to restrain or prohibit, or seeking to
obtain damages with respect to, the consummation of the transactions
contemplated hereby;
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(ii) Buyer shall deliver to Seller a certificate of an
officer of Buyer stating that the transactions contemplated hereby have been
approved by Seller's board of directors; and
(iii) Buyer shall have furnished the Seller with a legal
opinion of its counsel in form and substance reasonably satisfactory to Seller
and its counsel.
11. MISCELLANEOUS PROVISIONS.
11.1 FURTHER ASSURANCES. Each party hereto agrees to execute and
deliver such other documents, agreements or instruments and take such further
action as may be reasonably requested by any other party hereto for the
implementation of this Agreement and the consummation of the transactions
contemplated hereby.
11.2 NOTICES. Any notices required or permitted hereunder shall
be sufficiently given if in writing and personally delivered, by telecopy and
confirmed by telephone, or by internationally recognized overnight courier,
addressed as follows or to such other address as the parties shall have given
notice of pursuant hereto:
(a) If to the Seller:
Xx. Xxxxxxx Xxxxxxxx
00 Xxxxx Xxxxx
Xxxx Xxxxxx, XX 00000
with a copy to:
Xxxx X. Xxxx, Esq.
Lev, Berlin & Xxxx, P.C.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
tel. (000) 000-0000
fax. (000) 000-0000
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(b) If to Buyer:
Xx. Xxxxxx Xxxxxx
IT Staffing Ltd.
00 Xxxxxxxxxx Xxxxxx Xxxxx 000
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
tel. (000) 000-0000
fax. (000) 000-0000
with a copy to:
Xxx X. Xxxxxxxxx, Esq.
Gersten, Savage, Xxxxxxxxx & Xxxxxxxxxx, LLP
000 Xxxx 00xx Xxxxxx 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
tel. (000) 000-0000
fax. (000) 000-0000
All such notices shall be effective upon the earlier of receipt, date of
confirmation, or, in the case of registered mail, seven (7) days after
depositing in the mail, postage prepaid, return receipt requested and addressed
as shown above.
11.3 ENTIRE AGREEMENT. This Agreement (including the Schedules and
Exhibits hereto) represents the entire understanding and agreement between the
parties with respect to the subject matter hereof and can be amended,
supplemented or changed, and any provision hereof can be waived, only by written
instrument making specific reference to this Agreement signed by the parties
hereto. This Agreement supersedes all prior agreements and arrangements between
the parties hereto and their affiliates.
11.4 SUCCESSORS AND ASSIGNS; BENEFITS. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and, except as
otherwise provided below, their respective successors and assigns. Nothing
contained in this Agreement or in any of the Schedules or Exhibits hereto is
intended to create any rights in any person or entity that is not a party to
this Agreement and no person or entity shall be deemed to be a third party
beneficiary hereof or thereof.
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11.5 SECTION HEADINGS. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
11.6 APPLICABLE LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
without regard to the principles thereof relating to conflicts of law. The
parties hereto consent to the jurisdiction of the courts of the State of New
York in Manhattan and the United States District Court for the Southern District
of New York.
11.7 EXPENSES. Except as otherwise provided herein, the parties
hereto shall pay their own respective fees and expenses, including without
limitation, attorneys' fees. Notwithstanding the foregoing, in the event that
Seller commences legal action to recover any amounts owed hereunder, Buyer shall
pay all professional fees and expenses, including without limitation,
attorneys' fees and expenses.
11.8 SEVERABILITY. If any provision of this Agreement shall be held
by any court of competent jurisdiction to be illegal, void or unenforceable,
such provision shall be of no force and effect, but the illegality or
unenforceability of such provision shall have no effect upon and shall not
impair the enforceability of any other provision of this Agreement.
11.9 PUBLICITY. None of the parties hereto shall issue any press
release or make any other public statement or announcement relating to,
connected with or arising out of this Agreement or the matters contained herein,
without obtaining the prior written approval of the other parties hereto to the
contents and the manner of presentation and publication thereof. Notwithstanding
the foregoing, after the Closing Buyer may issue any such release, statement or
announcement as it reasonably deems appropriate in connection with its
responsibilities as a publicly traded company.
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11.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. This Agreement may be
executed by telecopied signatures with the same effect as original signatures.
11.11 SCHEDULES AND EXHIBITS. All Schedules and Exhibits referenced
herein are incorporated herein by reference and shall be initialed by both
parties in order to be deemed an integral part of this Agreement. The contents
of such Schedules and Exhibits are deemed to be disclosures to Buyer by Seller.
In the event that any Schedule or Exhibit provided for herein is incomplete or
has not been prepared by Seller and attached hereto as of the execution and
delivery of this Agreement, it shall be a condition precedent to Closing that
such Schedule or Exhibit shall be in form and substance reasonably satisfactory
to Buyer.
IT STAFFING LTD. SOUTHPORT CONSULTING CO.
By: /s/ Declan French By: /s/ Xxxxxxx Xxxxxxxx
--------------------------- ----------------------------
Declan French Xxxxxxx Xxxxxxxx
Its President Its President
Hereunto duly authorized Hereunto duly authorized
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SCHEDULE 1(i)
Assets
SCHEDULE 1(i)
Assets
(1) Deli Computer with Software
(1) Gateway Computer with Software
(1) HP III Printer
(1) Scanner with Software
(1) Fax Machine
ACT! Contact Manager Software
Skill Track Consultant/Client Searchable Database Software
ACCPAC Simply Accounting Software
Existing Office Supplies
Active and Historical Client Lists
Active and Historical Manager Contacts
Active and Historical Consultant Information
Active and Historical Master Client Agreements
Active and Historical Master Consultant Agreements
Active and Historical Consultant Schedule of Work
Active and Historical Job Requests
Hardcopy files of Consultant Resumes
EXHIBIT 1(i)
Xxxx of Sale
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EXHIBIT 4.13
Consulting Agreement
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XXXX OF SALE
Know All Men By These Presents that SOUTHPORT CONSULTING CO., a New Jersey
corporation ("Seller"), for the consideration of FIFTY THOUSAND UNITED STATES
DOLLARS (USD$50,000) and that number of shares of common stock of Buyer (as
hereinafter defined) calculated pursuant to that certain Asset Purchase
Agreement between Buyer and Seller of even date, received to Seller's full
satisfaction, subject to adjustment pursuant to said Agreement, from IT STAFFING
LTD., a corporation duly organized under the laws of the Province of Ontario and
authorized to conduct business in the State of New York ("Buyer"), does hereby
sell, transfer and convey unto the Buyer the assets described on schedule A
annexed hereto, free and clear of all liens, claims and encumbrances, to have
and to hold the same to the Buyer and the Buyer's executors, administrators,
assigns and successors forever, to the Buyer's and their proper use. And the
Seller does, for the Seller's heirs, executors, administrators, successors and
assigns covenant and agree with the Buyer to Warrant and Defend said property to
the Buyer against all persons whatsoever.
In all references herein to any parties, persons, entities or corporations
the use of any particular gender or the plural or singular number is intended to
include the appropriate gender or number as the text of the within instrument
may require.
In Witness Whereof, the Seller has signed and sealed this instrument or if
a corporation has caused these presents to be signed by its corporate officers
and its corporate seals to be hereto affixed this ____ day of___________ 1998.
SOUTHPORT CONSULTING CO.
By:
---------------------
Xxxxxxx Xxxxxxxx
Its President
Hereunto duly authorized
EXHIBIT 4.14
Non-Competition Agreement
20
NON-COMPETITION AGREEMENT
The undersigned covenants that be shall not, directly or indirectly, for a
period of Eighteen (18) Months after the date hereof, without prior express
written consent of the Buyer:
(i) be engaged in any work or other activity in the territory in which
Southport Consulting Co. conducts or has during the immediately preceding Twelve
(12) months conducted its business (the "Territory"), whether as owner,
stockholder, partner, consultant, employer, employee or otherwise, involving the
staffing of information technology consultants (the "Business"); nor
(ii) either on behalf of itself or any other person, firm or company
anywhere in the Territory, canvass or solicit orders relating to the Business
from or in any way interfere with any person, firm or company who shall at any
time have been directly or indirectly a customer or customers of the Buyer, or
any of its subsidiaries or affiliated companies.
____________, 1998
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Xxxxxxx Xxxxxxxx
