EXHIBIT 2.01
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is made and
entered into and effective as of September 24, 2004 (the
"Effective Date"), among TRIAD PERSONNEL SERVICES, INC., an
Illinois corporation ("Seller"), ▇▇▇▇▇▇▇ ▇. VERONA, a resident of
Murrysville, Pennsylvania ("Mr. Verona"), and GENERATION
TECHNOLOGIES, L.P., a Pennsylvania limited partnership ("Buyer").
Capitalized terms used herein are defined in the text of this
Agreement.
PREAMBLE
Seller is engaged in the business of recruiting and placing
personnel (the "Business") from Seller's offices located at ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Pittsburgh
Office"). Mr. Verona is Buyer's principal and has managed the
day-to-day operations of the Pittsburgh Office prior hereto and
had full understanding and knowledge of its operations up to
Tuesday, August 31, 2004 (the date of his leave of absence from
Seller). Seller desires to sell to Buyer, and Buyer desires to
purchase from Seller, substantially all of Seller's assets used
in connection with the Pittsburgh Office, all upon the terms and
subject to the conditions set forth herein. Therefore, the
parties agree as follows with the intent to be legally bound.
AGREEMENT
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.01. Purchase and Sale of Assets. Except for the
"Excluded Assets" (hereinafter defined), Seller hereby sells to
Buyer and Buyer hereby purchases from Seller, Seller's rights,
title and interest in and to the following assets of Seller's
Pittsburgh Office (collectively, the "Assets"):
(a) the equipment, machinery, fixtures, computer
hardware, telephone system, furniture, supplies and spare parts
listed on Schedule 1.01(a) (collectively, the "Equipment"),
including any warranties relating to the Equipment, if any;
(b) the registered and unregistered trademarks,
service marks, logos, trade and business names, telephone and
facsimile numbers, the domain names, and registered and common
law copyrights, if any, all as listed on Schedule 1.01(b) (the
"Intellectual Property");
(c) all data relating to the Pittsburgh Office
including, without limitation, the data contained on the
Ultrastaff software program; provided, however, Seller may retain
copies of all such data for its internal use only;
(d) the accounts receivable of the Pittsburgh Office
as of the start of business on September 24, 2004, as listed on
Schedule 1.01(d) and all unbilled time that will become accounts
receivable when billed by Seller on Buyer's behalf on or about
Wednesday, September
28, 2004 (the "Receivables"), and all claims, causes of action,
choses in action and rights of recovery and setoff relating to
the Receivables;
(e) to the extent transferable, the contracts,
agreements, leases (including the security deposit on the lease
for the Pittsburgh Office), licenses, commitments and purchase
orders relating to the Pittsburgh Office or any of the Assets,
all as listed on Schedule 1.01(e) (the "Business Agreements");
(f) to the extent transferable, the permits, licenses,
franchises, certificates, authorizations, consents and approvals,
if any, obtained from or issued by any governmental entity which
are used exclusively with the Pittsburgh Office and which are
necessary or desirable for the ownership or operation of the
Pittsburgh Office or any of the Assets including, without
limitation, the items listed on Schedule 1.01(f) (collectively,
the "Business Permits");
(g) the books, records, files, list of accounts
receivables, fixed assets list and manuals relating to the
Pittsburgh Office or any of the Assets, all advertising and other
information relating to the Pittsburgh Office or any of the
Assets, which are used exclusively with the Pittsburgh Office,
regardless of the form in which such information appears, all as
listed on Schedule 1.01(g);
(h) all choses in action, causes of action and
goodwill of the Pittsburgh Office or associated with any of the
Assets including, without limitation, Seller's inclusion on any
preferred vendor lists;
(i) all other tangible and intangible assets owned by
Seller, which are solely and exclusively used in connection with
the Pittsburgh Office; and
(j) all of Seller's rights, title and interest in and
to that certain Employment Agreement between Seller and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ signed by ▇▇. ▇▇▇▇▇▇ on October 14, 2003 including,
without limitation, the restrictions set forth in Section 5 of
the Employment Agreement. Buyer shall indemnify Seller for any
damages, losses, liabilities, costs and expenses (including
without limitation reasonable attorneys' fees and court costs)
that constitute, or arise out of or in connection with Buyer's
enforcement of any provisions contained in the Employment
Agreement including, without limitation, the restrictions set
forth in Section 5 of the Employment Agreement.
The Assets are being sold and transferred to Buyer "as is",
"where is" and "with all faults".
1.02. Excluded Assets. Notwithstanding any other provision
hereof, the Assets do not include the following items
(collectively, the "Excluded Assets"):
(a) cash and cash equivalents, including all account
balances and deposits in bank accounts;
-2-
(b) all refunds and deposits of all federal, state,
local and foreign taxes due to Seller with respect to the
Pittsburgh Office or Seller for any period;
(c) unless expressly set forth upon a Schedule, assets
which are not dedicated exclusively for use with the Pittsburgh
Office;
(d) all of Seller's corporate stock record books,
corporate record books containing minutes of meetings of the
Board of Directors and shareholders of Seller and all other
records related to Seller's corporate organization and
capitalization, tax records and returns, schedules of
depreciation and financial statements, employment information,
time cards and job orders; and
(e) those items listed on Schedule 1.02.
1.03. Assumption of Liabilities. Buyer will assume and
become liable only for the liabilities listed on Schedule 1.03
and such additional liabilities as (a) arise out of or relate to
the Assets or the Pittsburgh Office as conducted on and after the
Effective Date, (b) arise out of events first occurring or
conditions first existing on and after the Effective Date, (c)
relate to only the obligations for the commissions due to
employees listed on Schedule 1.03, or (d) arise to Buyer pursuant
to this Agreement and/or the other Transaction Documents,
including, without limitation, by virtue of the Buyer or Mr.
Verona's indemnification obligations contained herein and therein
(collectively, the "Assumed Liabilities"). All other liabilities
which arise out of or relate to the Excluded Assets or, except
for the Assumed Liabilities, which arise out of or relate to the
Assets or the Pittsburgh Office prior to the Effective Date
(collectively, the "Excluded Liabilities"), will continue to be
liabilities of Seller.
1.04. Purchase Price/Payment Terms. The purchase price for
the Assets (the "Purchase Price") is Six Hundred Eighty Five
Thousand Dollars ($685,000), plus (i) Three Thousand Seven
Hundred Twenty Dollars ($3,720), and (ii) the amount (including
without limitation FICA, unemployment taxes, withholding and
payroll taxes) paid by or due from Buyer to Seller on or about
September 29, 2004, arising out of work performed by billable
employees/consultants during the business week ending September
24, 2004 to Seller's then billable employees/consultants. Buyer
shall pay to Seller the Purchase Price as follows:
(a) on the Effective Date, the sum of Seven Hundred
Fifteen Thousand Dollars ($715,000) is payable by Buyer in
immediately available funds; and
(b) on or about September 29, 2004, Buyer and Seller
shall adjust and settle-up dollar-for dollar for amounts due
pursuant to Section 1.04 (i) and (ii); it being acknowledged that
Buyer has pre-paid to Seller on the Effective Date an estimated
sum of Twenty Five Thousand Dollars ($25,000).
1.05. Allocation of Purchase Price. The Buyer and the
Seller agree that the Purchase Price shall be allocated among the
Assets and the settlement and release described in the Settlement
Agreement and General Release as set forth on Schedule 1.05,
which allocation shall be used by them in preparing their
respective income tax returns. Buyer shall provide Seller a
-3-
copy of Buyer's Form 8594 (Asset Acquisition Statement) or such
similar tax return document evidencing Buyer's allocation of the
Purchase Price. Seller shall provide Buyer a copy of Seller's
Form 8594 (Asset Acquisition Statement) or such similar tax
return document evidencing Seller's allocation of the Purchase
Price.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Buyer as follows:
2.01. Organization and Qualification. Seller is a
corporation duly organized, validly existing and in good standing
in the State of Illinois. Seller is duly qualified to do
business as a foreign corporation and is in good standing in all
jurisdictions in which the ownership of its properties or the
nature of its business makes such qualification necessary.
2.02. Power and Authority. Seller has the corporate power
and authority to own its assets, to conduct its business as
presently conducted and to execute, deliver and perform its
obligations pursuant to this Agreement and the other documents
and agreements delivered in connection with this Agreement
(collectively, the "Transaction Documents").
2.03. Execution and Enforceability. The Transaction
Documents have been duly and validly executed and delivered by
Seller and constitute (or upon such execution and delivery will
constitute) legal, valid and binding obligations of Seller
enforceable against Seller in accordance with their respective
terms.
2.04. No Breach, Default, Violation or Consent. The
execution, delivery and performance by Seller of the Transaction
Documents do not and will not:
(a) violate Seller's charter or bylaws;
(b) to the best of Seller's knowledge, breach or
result in a default (or an event which, with the giving of notice
or the passage of time, or both, would constitute a default)
under, require any consent under, result in the creation of any
Lien on the Assets under or give to others any rights of
termination, acceleration, suspension, revocation, cancellation
or amendment of any Business Agreement or Business Permit;
(c) to the best of Seller's knowledge, breach or
otherwise violate any order, writ, judgment, injunction or decree
issued by any governmental entity (each a "Governmental Order")
which names Seller or is directed to Seller, the Pittsburgh
Office or any of the Assets;
(d) to the best of Seller's knowledge, violate any
law, rule, regulation, ordinance or code of any governmental
entity (each a "Governmental Rule"); or
(e) to the best of Seller's knowledge, other than
Required Disclosures (as hereinafter defined), require any
consent, authorization, approval, exemption or other action by,
or any filing, registration or qualification with, any person or
entity (each a "Person").
-4-
2.05. Tax Matters. Except as otherwise disclosed on
Schedule 2.05, to the best of Seller's knowledge:
(a) all tax returns and reports required to be filed
by Seller with respect to the Pittsburgh Office have been
properly prepared and filed; and
(b) Seller has paid, or has made adequate reserves on
its books for the payment of, all taxes, interest, penalties,
assessments and deficiencies shown to be due on such tax returns
and reports or claimed to be due by any governmental entity or
which Seller is required to withhold on behalf of any other
Person.
2.06. Litigation. There is no pending or, to the best of
Seller's knowledge, threatened investigation, action or
proceeding against Seller relating to the Pittsburgh Office or
any of the Assets by or before any governmental entity or
arbitrator.
2.07. Governmental Orders. There are no Governmental
Orders which name Seller and are related to the Pittsburgh Office
or any of the Assets.
2.08. Personal Property. To the best of Seller's
knowledge:
(a) Schedule 2.08 sets forth a correct and complete
list of all leases and other agreements pursuant to which Seller
leases any of the Equipment.
(b) Except as otherwise disclosed on Schedule 2.08,
all Receivables: (i) represent amounts receivable for goods
actually delivered or services actually provided (or, in the case
of non-trade receivables, represent amounts receivable in respect
of other bona fide business transactions), (ii) are not subject
to any material defenses, counterclaims or rights of setoff, and
(iii) have been billed and are generally due and payable within
30 days after billing. Schedule 1.01(d) sets forth the total
amount of Receivables outstanding as of the Effective Date.
2.09. Title Matters. Except as otherwise disclosed on
Schedule 2.09, to the best of Seller's knowledge, Seller has: (a)
good and marketable title to all Assets purported to be owned by
it and (b) good leasehold title to all Assets purported to be
leased by it, in each case free and clear of all liens, claims
and encumbrances of any nature whatsoever (collectively,
"Liens"). On the Effective Date Seller will transfer to Buyer
title to the Assets free and clear of all Liens other than those
marked as "Permitted Liens" on Schedule 2.09.
2.10. Business Agreements. To the best of Seller's
knowledge: (i) Schedule 2.10 sets forth a correct and complete
list of all Business Agreements; and (ii) except as otherwise
disclosed on Schedule 2.10, each such Business Agreement may be
assigned to Buyer without the consent of any other Person.
2.11. Accurate Disclosure. To the best of Seller's
knowledge, none of the information furnished by Seller to Buyer
or any of its representatives in connection with this Agreement
and the other Transaction Documents, and none of the
representations and warranties of Seller set
-5-
forth herein, in any other Transaction Document or in any
certificate delivered in connection herewith or therewith, (a) is
false or misleading in any material respect, (b) contains any
untrue statement of a material fact or (c) omits any statement of
material fact necessary to make the same not misleading.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer and Mr. Verona hereby jointly and severally represent
and warrant to Seller as follows:
3.01. Organization. Buyer is a limited partnership duly
organized, validly existing and in good standing in the
Commonwealth of Pennsylvania.
3.02. Power and Authority. Buyer has the power and
authority to own its properties and assets, to conduct its
business as presently conducted and to execute, deliver and
perform the Transaction Documents. Mr. Verona has been duly
authorized and has the requisite capacity to execute this
Agreement and the other Transaction Documents in his respective
capacities.
3.03. Execution and Enforceability. The Transaction
Documents have been duly and validly executed and delivered by
Buyer and Mr. Verona and constitute (or upon such execution and
delivery will constitute) legal, valid and binding obligations of
Buyer and Mr. Verona enforceable against Buyer and Mr. Verona in
accordance with their respective terms.
3.04. No Breach, Default, Violation or Consent. The
execution, delivery and performance of the Transaction Documents
by Buyer and Mr. Verona do not and will not:
(a) violate Buyer's limited partnership agreement;
(b) breach or result in a default (or an event which,
with the giving of notice or the passage of time, or both, would
constitute a default) under, require any consent under, result in
the creation of any Lien on Buyer's assets under or give to
others any rights of termination, acceleration, suspension,
revocation, cancellation or amendment of any material contract,
agreement, instrument or document to which Buyer is a party or by
which Buyer or any of its assets is bound;
(c) breach or otherwise violate any Governmental Order
which names Buyer or Mr. Verona or is directed to Buyer and Mr.
Verona or any of their respective assets;
(d) violate any Governmental Rule; or
(e) require any consent, authorization, approval,
exemption or other action by, or any filing, registration or
qualification with, any Person.
3.05. Acts. To the best of Buyer and Mr. Verona's
knowledge, neither Buyer, Mr. Verona nor Ms. Verona has committed
any act which would constitute an intentional tort or a
-6-
violation of criminal law in which Seller or its Affiliates may
be named as a defendant in any Proceeding or otherwise be held
liable.
3.06. Confirmation. To the best of Buyer and Mr. Verona's
knowledge, Seller's representations and warranties are true and
accurate in all respects.
3.07. Accurate Disclosure. None of the information
furnished by Buyer or Mr. Verona or any of their agents,
consultants or affiliates to Seller or any of its representatives
in connection with this Agreement and the other Transaction
Documents, and none of the representations and warranties of
Buyer and Mr. Verona set forth herein, in any other Transaction
Document or in any certificate delivered in connection herewith
or therewith, (a) is false or misleading in any material respect,
(b) contains any untrue statement of a material fact or (c) omits
any statement of material fact necessary to make the same not
misleading.
ARTICLE IV
CLOSING AND DELIVERIES
4.01. Closing. The closing of the transactions
contemplated hereby (the "Closing") will take place on the
Effective Date.
4.02. Seller's Deliveries. At Closing, Seller shall deliver
or cause to be delivered to Buyer, the following:
(a) a certificate of Seller's Secretary certifying
resolutions adopted by the Board of Directors of Seller
authorizing the execution of this Agreement and the other
Transaction Documents;
(b) the ▇▇▇▇ of Sale attached hereto as Exhibit A;
(c) the Assignment and Assumption Agreement attached
hereto as Exhibit B (the "Assignment and Assumption Agreement");
(d) the Settlement Agreement and General Release
attached hereto as Exhibit C (the "Settlement Agreement and
General Release");
(e) an Assignment of that certain Lease Agreement
between Associated Investors, Inc. and Triad (the "Lease") for
the office space located at Rodi ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ dated as of May 11, 2004 and
effective as of July 1, 2004 with the landlord's consent (the
"Lease Assignment") in which Buyer takes the place of Seller with
respect to Seller's obligations which arise on and after the
Effective Date (but not before the Effective Date) ("Buyer's
Lease Obligations"). To secure the full and timely payment by
Buyer to Seller of all Buyer's Lease Obligations on and after the
Effective Date, Buyer hereby grants to Seller a first priority
security interest and lien in and to all of Buyer's now existing
or owned and hereafter arising or acquired (a) Accounts;
(b) Goods for sale, lease or other disposition by Buyer which
have given rise to Accounts and have been returned to or
repossessed or stopped in transit by Buyer; (c) contract rights
and documents, instruments,
-7-
contracts or other writings executed in connection therewith,
including, but not limited to, all real and personal property
lease rights; (d) Chattel Paper, Electronic Chattel Paper,
Tangible Chattel Paper, Documents of Title, Instruments,
Documents, General Intangibles, Payment Intangibles, Letter of
Credit Rights, Letters of Credit and Supporting Obligations;
(e) patents, trademarks, trade names, service marks and
copyrights, all registrations and applications therefor, trade
secrets, goodwill, inventions, processes, designs, formulas and
other intellectual or proprietary rights or interests, of any
kind, nature or description whatsoever, and all registrations,
licenses, franchises, customer lists, tax refund claims, claims
against carrier and shippers, insurance claims, guaranty claims,
all other claims, proof of claims filed in any bankruptcy,
insolvency or other proceeding, contract rights, choses in
action, security interests, security deposits and rights to
indemnification; (f) Goods, including, without limitation,
Inventory, Equipment, Fixtures, trade fixtures and vehicles;
(g) Investment Property; (h) deposits, cash and cash equivalents
and any other property of Buyer now or hereafter in the
possession, custody or control of Seller, whether for
safekeeping, deposit, collection, custody, pledge, transmission
or otherwise; (i) deposit accounts held with any depository
institution; (j) all other personal property of Buyer of any kind
or nature, and (k) all Commercial Tort Claims and all cash and
non-cash proceeds of all of the foregoing property, including,
but not limited to, proceeds of all insurance policies insuring
the foregoing (the "Collateral"). Buyer shall execute and
deliver to Seller, at any time and from time to time, all
agreements, instruments, documents and other written matter (the
"Supplemental Documentation"), that Seller may request, in form
and substance acceptable to Seller, to perfect and maintain
perfected Seller's first priority security interest and lien in
and to the Collateral, and to otherwise consummate the
transactions contemplated by this Section. Buyer hereby
authorizes Seller to prepare and file any Uniform Commercial Code
("UCC") financing statements, amendments to UCC financing
statements and any other filings or recordings in all
jurisdictions where Seller determines appropriate without Buyer's
signature, and authorizes Seller to describe the Collateral in
such financing statements in any manner as Seller determines
reasonably appropriate. Capitalized terms in this Section if not
otherwise defined in this Agreement are defined in the UCC.
4.03. Buyer's Deliveries. At Closing, Buyer shall deliver
or cause to be delivered to Seller, the following:
(a) a certificate of Buyer's General Partner
authorizing the execution of this Agreement and the other
Transaction Documents and payment of the Purchase Price;
(b) the Assignment and Assumption Agreement;
(c) the Settlement Agreement and General Release; and
(d) the Purchase Price.
4.04. Employees. Seller will terminate, effective at
Closing, all of the employees working at the Pittsburgh Office
and Seller will be responsible for and timely and fully pay or
provide all wages, bonuses, commissions, vacation pay,
compensation and other remuneration and benefits due to such
former employees prior to Closing.
-8-
4.05. Other Transaction Documents. Buyer, Mr. Verona and
Seller shall deliver or cause to be delivered to the other such
other documents and instruments as may be reasonably requested
and satisfactory to the other party and its counsel in connection
with the full performance by the parties of their respective
covenants, duties and obligations described in or contemplated by
this Agreement and the other Transaction Documents.
ARTICLE V
CERTAIN POST-CLOSING MATTERS
5.01. Non-Competition and Non-Solicitation.
(a) During the one-year period commencing with the
Effective Date, neither Seller nor any of its Affiliates may
directly or indirectly engage in the business of recruitment and
placement of technical personnel within a 100 mile radius of the
Pittsburgh Office, not to exceed the Pennsylvania border (the
"Restricted Area").
(b) During the one-year period commencing with the
Closing, neither Seller, Mr. Verona, Buyer nor any of their
respective Affiliates may hire, solicit or induce any employee,
sales representative, agent or contractor of the other or any of
their respective Affiliates to terminate his or its employment or
other relationship with Seller, Buyer or any of their respective
Affiliates, as the case may be.
(c) If any party is in breach of any of the provisions
of subsections (a) or (b) above, then the time period set forth
in such subsections, as they relate to the breaching party, will
be extended by the length of time during which the breaching
party is in breach of any of such provisions.
(d) Each party acknowledges and agrees that the other
would be irreparably damaged if any of the provisions of this
Section are not performed in accordance with its specific terms
or are otherwise breached. Accordingly, each party agrees that
the other party is entitled to an injunction or injunctions to
prevent breaches of this Section and has the right to
specifically enforce this Section against the other party in
addition to any right or other remedy to which such party may be
entitled at law or in equity.
(e) If (i) ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, solicits or
induces any employee, sales representative, agent or contractor
of Seller to terminate his or its employment or other
relationship with Seller, or (ii) Buyer or Mr. Verona materially
breach their respective representations and warranties or fail to
fully and timely perform their respective covenants, duties and
obligations in the Transaction Documents, or (iii) Buyer
materially breaches the Buyer's Lease Obligations, then Seller's
obligations pursuant to this Section 5.01 shall be immediately
terminated and no further force or effect with regard to Seller
and its Affiliates. If Seller materially breaches its
representations and warranties or fails to fully and timely
perform its covenants, duties and obligations in this Agreement
or the other Transaction Documents, then Buyer's obligations
pursuant to this Section 5.01 shall be immediately terminated and
no further force or effect with regard to Buyer.
-9-
5.02. Certain Employee Matters.
(a) Nothing in this Agreement (i) requires Buyer to
hire, or to offer to hire, any employees of Seller, (ii)
constitutes an offer to employ such employees or (iii) requires
Buyer to pay any such persons severance pay in the event of
termination of employment.
(b) Other than as expressly provided for in the
Transaction Documents (which includes certain obligations for
certain commissions due to employees relating to the Receivables
as set forth on Schedule 1.03), Buyer does not and will not
assume or be responsible for any obligations or liabilities
arising out of any employment relationship between Seller and any
employee or former employee of Seller. Without limiting the
generality of the foregoing, Buyer will have no liability or
obligation in connection with Seller's employees or former
employees and their beneficiaries for (i) contributions to or
payments under employee benefit plans, stock options, programs,
arrangements or understandings, (ii) accrued, but unused, sick
leave, vacation pay and severance pay, if any, (iii) liabilities
or obligations under any collective bargaining agreement or
bargaining relationship or (iv) claims, demands, administrative
proceedings or suits arising out of or in connection with alleged
unlawful employment practices of Seller, all of which are
Excluded Liabilities unless due to intentional acts or
intentional omissions by Mr. Verona or Ms. Verona.
5.03. Names. Other than as set forth herein, Seller
acknowledges that from and after the Effective Date it has no
right to use the names "GenTech" or "Generation Technologies"
except for the use of the names "GenTech" and "Generation
Technologies" in connection with the Seller's offices located in
the state of Massachusetts for use only in connection with sales
of products and services generated by the Massachusetts offices
and, in connection therewith, Buyer hereby grants to Seller a
fully paid irrevocable right and license to use the names
"GenTech" and "Generation Technologies" for use only in
connection with sales of products and services generated by the
Massachusetts offices; provided such use is not in the Restricted
Area.
5.04. Accounts Receivable. Seller shall forward any cash
from customers received by Seller (whether by check or electronic
funds transfer) to Buyer with regard to Receivables within five
business days of receipt via a check from Seller to Buyer.
5.05. Transition. To facilitate an orderly transition of
the Pittsburgh Office to Buyer, Seller shall designated ▇▇▇▇
▇▇▇▇▇ as its designated point person and Buyer shall designate
Mr. Verona as its designated point person. Such persons shall
work through any issues that arise with regard to health care
benefits, 401(k) issues etc. If Buyer receives checks for
payment of the Receivables and such checks are made out in
Seller's name, Seller hereby covenants and agrees to endorse such
checks over to Buyer and to send such checks to Buyer via
overnight mail (at Buyer's postage expense) within one business
day of receipt of such checks from Buyer. If funds are received
in Seller's lockbox, upon clearing of such funds, Seller will
send a check to Buyer within one week via overnight mail (at
Buyer's postage expense).
-10-
ARTICLE VI
INDEMNIFICATION
6.01. Indemnification by Seller. Seller will defend,
indemnify and hold harmless Buyer, its Affiliates and their
respective equity holders, shareholders, partners, directors,
officers, employees, consultants and agents (each a "Seller
Indemnitee") from and against any and all claims (including
without limitation any investigation, action or other proceeding,
whether instituted by a third party against a Seller Indemnitee
or by a Seller Indemnitee for the purpose of enforcing its rights
hereunder), damages, losses, liabilities, costs and expenses
(including without limitation reasonable attorneys' fees and
court costs) that constitute, or arise out of or in connection
with:
(a) any Excluded Assets or Excluded Liabilities;
(b) any misrepresentation or breach of representation
or warranty by Seller in this Agreement or any other Transaction
Document or in any Schedule, Exhibit or other document identified
in this Agreement as having been delivered pursuant to this
Agreement (a "Seller Warranty Breach");
(c) any default by Seller in the performance or
observance of any of its covenants or agreements in this
Agreement or any Transaction Document; or
(d) Seller's operation of the Pittsburgh Office and
its Business and use of the Assets before the Effective Date to
the extent not covered in Section 6.02(e).
6.02. Indemnification by Buyer. Buyer and Mr. Verona,
jointly and severally, will defend, indemnify and hold harmless
Seller, its Affiliates and their respective equity holders,
shareholders, directors, officers, employees, consultants and
agents (each a "Buyer Indemnitee") from and against any and all
claims (including without limitation any investigation, action or
other proceeding, whether instituted by a third party against a
Buyer Indemnitee or by a Buyer Indemnitee for the purpose of
enforcing its rights hereunder), damages, losses, liabilities,
costs and expenses (including without limitation reasonable
attorneys' fees and court costs) that constitute, or arise out of
or in connection with:
(a) any of the Assets or Assumed Liabilities;
(b) any misrepresentation or breach of representation
or warranty by Buyer or Mr. Verona in this Agreement or any other
Transaction Document or in any Schedule, Exhibit or other
document identified in this Agreement as having been delivered
pursuant to this Agreement (a "Buyer Warranty Breach");
(c) any default by Buyer or Mr. Verona in the
performance or observance of any of its covenants or agreements
in this Agreement or any other Transaction Document;
(d) Buyer's operation of the Pittsburgh Office and its
business and use the Assets on and after the Effective Date; or
-11-
(e) except for the Acknowledged Claims (as defined in
the Settlement Agreement and General Release, intentional acts or
intentional omissions of Mr. Verona and Ms. Verona outside of the
scope of their respective employment with Seller arising prior to
the Effective Date including, without limitation, in connection
with alleged employment practices or actions or omissions of Mr.
Verona or Ms. Verona that may constitute intentional torts or
violations of criminal law.
6.03. Third Party Claims. If any investigation, action or
other proceeding (each a "Proceeding") is initiated against any
Seller Indemnitee or Buyer Indemnitee (each an "Indemnitee") by
any third party and such Indemnitee intends to seek
indemnification from Seller or Buyer (each an "Indemnitor"), as
applicable, under this Article on account of its involvement in
such Proceeding, then such Indemnitee will give prompt notice to
the applicable Indemnitor of such Proceeding; provided, that the
failure to so notify such Indemnitor will not relieve such
Indemnitor of its obligations under this Article, but will reduce
such obligations by the amount of damages or increased costs and
expenses attributable to such failure to give notice. Upon
receipt of such notice, such Indemnitor will diligently defend
against such Proceeding on behalf of such Indemnitee at its own
expense using counsel reasonably acceptable to such Indemnitee;
provided, that if such Indemnitor fails or refuses to conduct
such defense, or such Indemnitee has been advised by counsel that
it may have defenses available to it which are different from or
in addition to those available to such Indemnitor, or that its
interests in such Proceeding are adverse to such Indemnitor's
interests, then such Indemnitee may defend against such
Proceeding at such Indemnitor's expense. Such Indemnitor or
Indemnitee, as applicable, may participate in any Proceeding
being defended against by the other at its own expense, and will
not settle any Proceeding without the prior consent of the other,
which consent will not be unreasonably withheld; provided, that
the consent of an Indemnitor is not required if such Indemnitor
failed or refused to defend the Indemnitee in the Proceeding that
is being settled. Such Indemnitor and Indemnitee will cooperate
with each other in the conduct of any such Proceeding.
6.04. Notice and Satisfaction of Indemnification Claims.
No indemnification claim will be deemed to have been asserted
until the applicable Indemnitor has been given notice by the
Indemnitee of the amount of such claim and the facts on which
such claim is based. For purposes of Section 6.03, notice of an
indemnification claim will be deemed to cover claims arising out
of all related Proceedings so long as, in the case of Proceedings
instituted by third parties, the Indemnitee complies with
Section 6.03. If the Indemnitee is not Buyer or Seller, then
such notice will be given on behalf of such Indemnitee by Buyer
or Seller, as applicable. Indemnification claims will be paid
within 30 days after the Indemnitor's receipt of such notice and
such evidence of the amount of such claim and the Indemnitor's
liability therefor as the Indemnitor may reasonably request.
6.05. Survival of Representations and Warranties.
Notwithstanding the closing of the transactions described in and
contemplated by this Agreement or any investigation made by or on
behalf of Buyer or Seller, the representations and warranties of
Buyer and Seller contained in the Transaction Documents and in
any certificate, Exhibit, Schedule or other document delivered
pursuant to the Transaction Documents, and the covenants and
agreements of Buyer and Seller to
-12-
indemnify each other for a breach or violation of this Agreement,
will survive the Effective Date for one (1) year, except for
Sections 6.01(d), 6.02(d), 6.02(e) and the Buyer's Lease
Obligations and Mr. Verona's personal guaranty with respect to
the Buyer's Lease Obligations, which will survive for a period
commencing as of the Effective Date and terminating ninety (90)
days following the expiration of the applicable statute of
limitation period for which a claim may be made.
ARTICLE VII
GENERAL PROVISIONS
7.01. Assignment. Neither this Agreement, the Transaction
Documents nor any right, interest or obligation hereunder may be
assigned, pledged or otherwise transferred by any party, whether
by operation of law or otherwise, without the prior consent of
the other party or parties.
7.02. Expenses. Except as otherwise specifically provided
herein or in any other Transaction Document, each party is
responsible for such expenses as it may incur in connection with
the negotiation, preparation, execution, delivery, performance
and enforcement of the Transaction Documents.
7.03. Further Assurances. The parties will from time to
time do and perform such additional acts and execute and deliver
such additional documents and instruments as may be required by
applicable Governmental Rules or reasonably requested by any
party to establish, maintain or protect its rights and remedies
or to effect the intents and purposes of this Agreement and the
other Transaction Documents. Without limiting the generality of
the foregoing, each party agrees to endorse (if necessary) and
deliver to the other, promptly after its receipt thereof, any
payment or document which it receives after the Effective Date
and which is the property of the other.
7.04. Notices. Unless otherwise specifically provided
herein, all notices, consents, requests, demands and other
communications required or permitted hereunder: (a) will be in
writing; (b) will be sent by messenger, certified or registered
U.S. mail, a reliable express delivery service or telecopier
(with a copy sent by one of the foregoing means), charges prepaid
as applicable, to the appropriate address(es) or number(s) set
forth below; and (c) will be deemed to have been given on the
date of receipt by the addressee (or, if the date of receipt is
not a business day, on the first business day after the date of
receipt), as evidenced by (i) a receipt executed by the addressee
(or a responsible person in his or her office), the records of
the Person delivering such communication or a notice to the
effect that such addressee refused to claim or accept such
communication, if sent by messenger, U.S. mail or express
delivery service, or (ii) a receipt generated by the sender's
telecopier showing that such communication was sent to the
appropriate number on a specified date, if sent by telecopier.
All such communications will be sent to the following addresses
or numbers, or to such other addresses or numbers as any party
may inform the others by giving five business days' prior notice:
-13-
If to Seller: With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇., President A. ▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
c/o Triad Personnel Services, Inc. FagelHaber LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Street, 40th Floor
Oakbrook Terrace, Illinois 60181 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 630.954.6595 Facsimile: 312.580.2201
If to Buyer or Mr. Verona: With a copy to:
▇▇▇▇▇▇▇ ▇. Verona ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇, Esq.
c/o Generation Technologies, L.P. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
665 Rodi Road ▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile: 412.244.8480 ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: 412.244.8480 Facsimile: 412.209.1972
7.05. Publicity. Subject to Section 7.06, no party will
make any press release or other public announcement regarding
this Agreement or the other Transaction Documents or any
transaction contemplated hereby or thereby until the text of such
release or announcement has been submitted to the other party and
the other party has approved the same, such approval shall not be
unreasonably withheld. Buyer shall be permitted to cooperate
with local reporters regarding news articles regarding Buyer's
acquisition of the Pittsburgh Office. Buyer has expressly
approved the press release attached hereto as Schedule 7.05.
7.06. Non-Disclosure. The parties agree that any
information or data involving the sale and purchase of the Assets
and the consummation of the other transactions described in or
contemplated by this Agreement, including, without limitation,
the Purchase Price and other terms and provisions set forth
herein, is of a confidential nature and not generally known to
the public. In order to preserve the confidentiality of all such
information and data and the goodwill associated with the sale
and purchase of the Assets, other than pursuant to Required
Disclosures and except for their financial and legal advisors,
after the Effective Date, no party will divulge, communicate or
disclose any such information or data, in connection with the
performance of their respective covenants and obligations set
forth in this Agreement or Buyer's operation of the Pittsburgh
Office. In particular, neither Buyer nor Mr. Verona shall discuss
or divulge the details of the transaction to any of Seller's
employees, agents, consultants without the prior written consent
of Seller. Notwithstanding anything to the contrary in this
Agreement or any other Transaction Document, without the
requirement of consent of any party, Buyer and Seller may
disclose such information as deemed necessary or required by law,
rule, regulation or legal process, including, without limitation,
to the Securities and Exchange Commission, Securities Departments
of various states, Boards of Directors, shareholders and reports
to shareholders, partners, attorneys, accountants and advisors
(collectively, "Required Disclosures").
7.07. Miscellaneous. This Agreement: (a) may be amended
only by a writing signed by each of the parties; (b) may be
executed in several counterparts, each of which is deemed an
original but all of which constitute one and the same instrument;
(c) together with the other
-14-
Transaction Documents, contains the entire agreement of the
parties with respect to the transactions contemplated hereby and
thereby and supersedes all prior written and oral agreements, and
all contemporaneous oral agreements, relating to such
transactions; (d) is governed by, and will be construed and
enforced in accordance with, the laws of the State of Delaware,
without giving effect to any conflict of laws rules; and (f) is
binding upon, and will inure to the benefit of, the parties and
their respective successors and permitted assigns. The due
performance or observance by a party of any of its obligations
under this Agreement may be waived only by a writing signed by
the party against whom enforcement of such waiver is sought, and
any such waiver will be effective only to the extent specifically
set forth in such writing. The waiver by a party of any breach
or violation of any provision of this Agreement will not operate
as, or be construed to be, a waiver of any subsequent breach or
violation hereof. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction will, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
7.08. Venue/Jurisdiction. The parties each irrevocably
consent, agree and submit to the non-exclusive jurisdiction of
the courts located in ▇▇▇▇ County, Illinois and in Allegheny
County, Pennsylvania, with regard to any actions or proceedings
arising from, relating to or in connection with this Agreement,
and the other Transaction Documents.
[Signature Page Follows]
-15-
SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT
SELLER: BUYER:
TRIAD PERSONNEL SERVICES, INC. GENERATION TECHNOLOGIES, L.P.
By Generation Technologies, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By:
Title: President ▇▇▇▇▇▇▇ ▇. Verona, President
MR. VERONA:
▇▇▇▇▇▇▇ ▇. Verona
GUARANTY
For good and valuable consideration, including, without
limitation, Buyer, Seller and Mr. Verona's execution and delivery
of this Agreement and the other Transaction Documents, Seller's
sale of the Assets, Buyer's purchase of the Assets and other good
and valuable consideration, the receipt and sufficiency of such
consideration being hereby acknowledged by the undersigned, Mr.
Verona having a financial interest in Buyer, and benefiting from
the transactions contemplated by this Agreement and the other
Transaction Documents, hereby personally guaranties the payment
by Buyer of all amounts due by Buyer arising from or relating to
the Lease and Buyer's Lease Obligations on and after the
Effective Date. In the event of a default by Buyer, Seller may
proceed directly to enforce its rights hereunder and shall have
the right to proceed first against Mr. Verona, without proceeding
with or exhausting any other remedies it may have. In additional
to all of Seller's rights in this Agreement, the other
Transaction Documents and at law, in equity or otherwise, Mr.
Verona agrees to pay all reasonable costs, reasonable expenses,
and reasonable fees, including reasonable attorneys' fees, which
may be incurred by Seller in enforcing this Guaranty or
protecting its rights following any default on the part of Mr.
Verona. Mr. Verona agrees that an interest charge of one and
one-half (1"% ) percent per month, or the highest rate permitted
by law, whichever is less, shall be assessed on any amount due
and owing to Sellers by Mr. Verona under this Guaranty until
collected. This Guaranty shall be binding upon Mr. Verona, Mr.
Verona's heirs, successors, assigns, and representatives and
survivors, and shall inure to the benefit of Seller, its
Affiliates and their successors, assigns, and shareholders and
may be assigned by Seller without notice to Mr. Verona.
MR. VERONA:
▇▇▇▇▇▇▇ ▇. Verona
C-1
SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT
SELLER: BUYER:
TRIAD PERSONNEL SERVICES, INC. GENERATION TECHNOLOGIES, L.P.
By Generation Technologies, Inc.,
its general partner
By:
Name: By: /s/ ▇▇▇▇▇▇▇ ▇. Verona
Title: ▇▇▇▇▇▇▇ ▇. Verona, President
MR. VERONA:
/s/ ▇▇▇▇▇▇▇ ▇. Verona
▇▇▇▇▇▇▇ ▇. Verona
GUARANTY
For good and valuable consideration, including, without
limitation, Buyer, Seller and Mr. Verona's execution and delivery
of this Agreement and the other Transaction Documents, Seller's
sale of the Assets, Buyer's purchase of the Assets and other good
and valuable consideration, the receipt and sufficiency of such
consideration being hereby acknowledged by the undersigned, Mr.
Verona having a financial interest in Buyer, and benefiting from
the transactions contemplated by this Agreement and the other
Transaction Documents, hereby personally guaranties the payment
by Buyer of all amounts due by Buyer arising from or relating to
the Lease and Buyer's Lease Obligations on and after the
Effective Date. In the event of a default by Buyer, Seller may
proceed directly to enforce its rights hereunder and shall have
the right to proceed first against Mr. Verona, without proceeding
with or exhausting any other remedies it may have. In additional
to all of Seller's rights in this Agreement, the other
Transaction Documents and at law, in equity or otherwise, Mr.
Verona agrees to pay all reasonable costs, reasonable expenses,
and reasonable fees, including reasonable attorneys' fees, which
may be incurred by Seller in enforcing this Guaranty or
protecting its rights following any default on the part of Mr.
Verona. Mr. Verona agrees that an interest charge of one and
one-half (1"% ) percent per month, or the highest rate permitted
by law, whichever is less, shall be assessed on any amount due
and owing to Sellers by Mr. Verona under this Guaranty until
collected. This Guaranty shall be binding upon Mr. Verona, Mr.
Verona's heirs, successors, assigns, and representatives and
survivors, and shall inure to the benefit of Seller, its
Affiliates and their successors, assigns, and shareholders and
may be assigned by Seller without notice to Mr. Verona.
MR. VERONA:
/s/ ▇▇▇▇▇▇▇ ▇. Verona
▇▇▇▇▇▇▇ ▇. Verona
C-1
