ACQUISITION AGREEMENT
This Acquisition Agreement is made effective as of the 3rd day of
January, 1998 (the "Contract Date") by and between The Netplex Group, Inc., a
New York corporation ("Netplex"), Preferred Systems Solutions, Inc., a Virginia
corporation ("Preferred"), The PSS Group, Inc., a Virginia corporation ("PSS"),
and Xxxxxx X. Xxxxx, Xx., an individual residing at 00000 Xxxxxxxxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxx 00000 ("Xxxxx"), pursuant to which Netplex shall acquire all of
the outstanding common stock of The PSS Group, Inc., a wholly owned subsidiary
of Preferred ("PSS") and in exchange for cash and a certain number of shares of
Class A common stock, par value $.001, of Netplex ("Netplex Stock") to be
determined by and in accordance with the following terms and conditions.
WHEREAS, Netplex has agreed to purchase the technical professional
staff augmentation operations and business of Preferred, which does not include
Preferred's government contracting business (the "PSS Business"); and
WHEREAS, part of the consideration for the purchase price is the
agreement of Preferred and Xxxxxx X. Xxxxx, Xx. that they will not compete with
the business Netplex is purchasing; and
WHEREAS, Preferred recently formed a subsidiary, PSS, and transferred
the assets and liabilities of the PSS Business to PSS prior to the date of this
Agreement.
NOW THEREFORE, in consideration of the mutual representations,
warranties, covenants, terms and conditions set forth herein, the parties agree
as follows:
1. Purchase and Sale of PSS Stock. On the terms and subject to the
conditions set forth in this Agreement, at the Closing (hereinafter
defined) Preferred agrees to sell, transfer, convey and deliver to
Netplex, and Netplex agrees to purchase, acquire and accept from
Preferred, all of the capital stock of PSS (the "PSS Stock").
2. Closing. The Closing shall take place on such date, time and place as
the parties shall agree (the "Closing Date") after all of the
conditions to the parties' obligations to close have been satisfied or
waived; however, in no event shall the Closing occur later than January
30, 1998, provided however that Closing shall be effective as of
January 3, 1998.
3. Consideration. In exchange for the PSS Stock, Netplex shall pay
Preferred $600,000, payable $300,000 in cash on the Closing Date,
payable by check to Preferred or by wire transfer to Signet Bank, ABA
Number 000000000, Account Number 6520417376; and on or before January
15, 1999, $300,000 either in cash or 200,000 shares of Netplex common
stock, or any combination thereof, at Preferred's option. The price of
the Netplex common stock for this purpose is $1.50 per share.
4. Items To Be Delivered At Closing. The parties hereto shall deliver to
each other the following fully executed agreements:
a. The Earn Out Agreement in the form set forth in Exhibit A hereto.
b. Netplex Stock Option Agreements for up to a total of 40,000 shares
will be distributed to the employees of PSS other than Xxxxx and
Xxxxxxx Xxxxxxx pursuant to the attached Option Schedule set forth
as Schedule 4.b hereto. The form of option agreement is attached
hereto as Exhibit B. The exercise price of the options will be the
closing price of the Netplex Stock on the date of execution of
this Agreement.
c. The Employment Agreement with Xxxxxxx Xxxxxxx in the form attached
hereto as Exhibit C.
d. The Management Services Agreement in the form attached hereto as
Exhibit D.
e. The letter escrow agreement and the pledge agreement and stock
power from Preferred's counsel in the form attached hereto as
Exhibit E.
f. The Master Contribution, Assignment and Assumption Agreement in
the form attached hereto as Exhibit F (the "Drop Down Agreement").
5. Termination of Personal Guarantee. As soon as practicable after the
Closing Date, but in no event later than sixty days after the Closing
Date, Netplex will cause Preferred's lender to amend, modify or
terminate the Preferred Line of Credit with First Union Bank (formerly
Signet Bank) for $1,000,000 (liability for which was assumed by PSS),
so that Preferred's liability on and the personal guarantee of Xxxxx on
the line of credit is extinguished. Netplex agrees that the PSS stock
certificates shall be pledged to Preferred as security for Netplex's
obligations under this Section 5 and the PSS stock certificates shall
be held in escrow by Preferred's counsel until such time as Preferred's
liability on and Xxxxx'x personal guarantee thereon is extinguished.
6. Management Services To Be Provided by Preferred. Schedule 6 sets forth
a complete list of the contracts assigned by Preferred to PSS under the
Drop Down Agreement. Any contract or agreement which could not be
transferred to PSS as part of the Acquisition Agreement because of a
non-assignment clause (or similar restriction) is set forth on Schedule
3 to the Drop Down Agreement and shall be maintained and managed by
Preferred for the benefit of PSS and Netplex, and any profits resulting
from such a contract or agreement shall be immediately, after receipt
of said profits, paid over to PSS or Netplex pursuant to the Management
Services Agreement. Preferred will assist PSS and Netplex in novating
such contracts or agreements so that the contracts or agreements can be
assigned to PSS or Netplex.
7. Non-competition by Preferred. Preferred agrees:
a. For a period of five (5) years after the date of this Agreement,
Preferred and any of its shareholders shall not, directly or
indirectly, alone, or as a partner, officer, director, employee,
stockholder, consultant or agent of any other corporation,
partnership or other business organization, engage in any business
activity which is directly or indirectly in competition with the
products or services owned, sold, manufactured, marketed, provided
or developed by PSS and/or Netplex and its subsidiaries during the
three (3) year period beginning as of the date of this Agreement.
b. For a period of five (5) years after the date of this Agreement,
Preferred and any of its shareholders shall not, directly or
indirectly, alone, or as a partner, officer, director, employee,
stockholder, consultant or agent of any other corporation,
partnership or other business organization, solicit the employment
of, or hire, any employee of PSS, Netplex, or any Netplex
subsidiary, or cause any such employee to terminate the employee's
relationship with PSS, Netplex or any Netplex subsidiary, without
the prior written approval of Netplex. Netplex and PSS agree that
they shall not directly or indirectly solicit the employment of,
or hire any employee of Preferred, or cause any such employee to
terminate the employee's relationship with Preferred without the
prior written approval of Preferred.
c. For a period of five (5) years after the date of this Agreement ,
Preferred or any of its shareholders shall not, directly or
indirectly, alone, or as a partner, officer, director, employee,
stockholder, consultant or agent of any other corporation,
partnership or other business organization, solicit any of the
accounts of PSS or Netplex unless such solicitation is undertaken
on behalf of a business venture which does not compete, directly
or indirectly, with the products or services owned, sold,
manufactured, marketed, provided or developed by PSS and/or
Netplex and its subsidiaries during the three (3) year period
beginning on the date of this Agreement.
d. The parties agree that this Agreement is being entered into by
Netplex in connection with the acquisition of PSS, a wholly owned
subsidiary of Preferred, and that any breach or threatened breach
of the provisions of this Agreement will cause irreparable injury
to PSS and Netplex and
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that money damages will not provide an adequate remedy.
Accordingly, PSS and Netplex shall, in addition to other remedies
provided by law, be entitled to such equitable and injunctive
relief as may be necessary to enforce the provisions of this
agreement against Preferred or any of its shareholders or any
person or entity participating in such breach or threatened
breach. Nothing contained herein shall be construed as prohibiting
PSS and/or Netplex from pursuing any other and additional remedies
available to it, at law or in equity, for such breach or
threatened breach including any recovery of damages from Preferred
and any of its shareholders and the immediate termination of this
Agreement.
e. The provisions of this Section 7 shall not be enforceable against
Preferred if PSS or Netplex has materially breached this
Agreement.
f. Notwithstanding anything herein to the contrary, the provisions of
Sections 7.a and 7.c shall not apply to any government contracting
business conducted by Preferred, whether as a prime contractor to
a governmental agency or unit or as a subcontractor to a
commercial enterprise with respect to any governmental agency or
unit.
8. Representations and Warranties of Preferred, PSS and Xxxxxx X. Xxxxx,
Xx. As an inducement to Netplex to enter into this Agreement, and as a
condition precedent to its purchase of the PSS Stock:
a. Organization and Power. Xxxxx, Preferred and PSS hereby jointly
and severally represent and warrant to Netplex as of the date
hereof and as of the Closing date that Preferred and PSS are
corporations duly organized, validly existing and in good standing
under the laws of the Commonwealth of Virginia, and they are
qualified to do business and is in good standing in the
jurisdictions specified on the "Schedule 8.a - Qualifications"
annexed hereto, which, except as otherwise disclosed on Schedule
8.a, are the only jurisdictions in which the ownership of
properties or the conduct of business requires it to be so
qualified. Except as otherwise disclosed on Schedule 8.a, PSS has
all requisite power and authority and all material licenses,
permits and other authorizations necessary to own and operate its
properties and to carry on its businesses as now conducted. The
copies of the Articles of Incorporation, By-Laws, minute books,
stock transfer ledgers and other records of corporate proceedings
of PSS which have been previously furnished to Netplex reflect all
amendments made thereto at any time prior to the date of this
Agreement and are correct and complete in all material respects,
and there have been no changes, alteration or additions thereto
that have not been furnished to Netplex prior to the Closing Date.
b. Subsidiaries. Xxxxx, Preferred and PSS hereby jointly and
severally represent and warrant to Netplex as of the date hereof
and as of the Closing date that other than PSS, Preferred owns no
controlling interest in any corporation, partnership, joint
venture or other entity.
c. Assets and Liabilities Assigned by Preferred to PSS. Xxxxx and
Preferred hereby jointly and severally represent and warrant to
Netplex as of the date hereof and as of the Closing date that the
assets and liabilities transferred by Preferred to PSS on January
2, 1998 pursuant to the Drop Down Agreement are set forth in
Schedule 8.c attached hereto.
d. Authorization; No Breach. Xxxxx, Preferred and PSS hereby jointly
and severally represent and warrant to Netplex as of the date
hereof and as of the Closing date that the execution, delivery and
performance by Preferred and PSS of this Agreement and the other
agreements contemplated hereby and the consummation of the
transactions contemplated hereby and thereby have been duly and
validly authorized by all requisite board of directors and
shareholder action, and no other proceedings on the part of
Preferred and PSS are necessary to authorize the execution,
delivery or performance of this Agreement or the other agreements
contemplated hereby. This Agreement and the other agreements
contemplated hereby each constitutes a valid and binding
obligation of Preferred or PSS, enforceable against Preferred
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or PSS in accordance with its respective terms. To the best of
their commercially reasonable knowledge, the execution, delivery
and performance of this Agreement by Preferred or PSS and the
consummation of the transactions contemplated hereby and thereby
do not and shall not conflict with or result in any breach of any
of the provisions of or constitute a default under, result in a
violation of, or cause the acceleration of any obligation under
any indenture, mortgage, lease, loan agreement or other agreement
or instrument to which Preferred or PSS is bound or affected, or
any law, statute, rule, regulation, judgment, order or decree to
which Preferred or PSS is subject, except as set forth in Schedule
8.d attached hereto.
e. Financial Condition; Financial Statements; Accounts Receivable.
Xxxxx, Preferred and PSS hereby jointly and severally represent
and warrant to Netplex as of the date hereof and as of the Closing
date that all of the Preferred financial statements provided to
Netplex are materially true and correct statements of the
financial condition of Preferred with respect to the PSS Business;
there are no material omissions or misstatements in the financial
statements or financial materials provided to Netplex; and the
financial statements, taken as a whole, fairly present the
financial condition and results of operations of Preferred with
respect to the PSS Business as of the dates thereof and for the
periods then ended . To the best of their commercially reasonable
knowledge, Preferred, PSS and Xxxxxx X. Xxxxx, Xx. warrant and
represent that the accounts receivable of Preferred and PSS are
valid, existing and collectible obligations owed to Preferred and
PSS, that the accounts receivable are not subject to any defense,
counterclaim, or set off, and that Preferred and PSS have good and
marketable title to all of their accounts receivable. The current
accounts receivable and financial statements are set forth in
Schedule 8.e attached hereto.
f. Absence of Undisclosed Liabilities. Xxxxx, Preferred and PSS
hereby jointly and severally represent and warrant to Netplex as
of the date hereof and as of the Closing date that:
1. As of the Closing, PSS shall have no material liabilities or
obligations in excess of $15,000 with respect to any person
or entity whether accrued, absolute, contingent, unliquidated
or otherwise, whether or not known to Preferred and PSS,
whether due or to become due, arising out of transactions
entered into at or prior to the Closing, or any action or
inaction at or prior to the Closing, or any state of facts
existing at or prior to the Closing, regardless of when any
such liability or obligation is asserted, including, without
limitation, taxes with respect to or based upon transactions
or events occurring on or before the Closing, except:
(A) liabilities and obligations under agreements, contracts,
leases or commitments described on the "Schedule 6 -
Contracts" attached hereto (but not liabilities for breaches
thereof), or
(B) liabilities and obligations otherwise expressly disclosed
in this Agreement or the "Schedule 8.f - Liabilities"
attached hereto.
2. Preferred and PSS are not signatory to, and are not in any
manner a guarantor, endorser, assumptor or otherwise
primarily or secondarily liable for or responsible for the
payment of, any notes payable or other obligations other than
those set forth in Schedule 8.f.
3. Provided that an undisclosed liability is not due to the
fraud or misrepresentation by Xxxxx, Preferred or PSS, in the
event an undisclosed liability described above exceeds
$15,000, but is less than $50,000, then Xxxxx, Preferred and
PSS shall bear the costs of extinguishing such liability. To
the extent such a liability exceeds $50,000, Xxxxx, Preferred
and PSS on one hand, and Netplex on the other hand, shall
share equally in the costs of extinguishing the portion of
the liability which exceeds $50,000; provided however, that
Preferred's, PSS's and Xxxxx'x liability hereunder will be
limited to any amounts paid under that certain Earn Out
Agreement dated January 3, 1998 between Netplex and
Preferred.
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g. No Material Adverse Changes. Xxxxx, Preferred and PSS hereby
jointly and severally represent and warrant to Netplex as of the
date hereof and as of the Closing date that since December 1,
1997, there has been no material adverse change in the financial
condition, operating results, assets, operations, employee
relations, customer relations or business prospects of Preferred
with respect to the PSS Business.
h. PSS Stock Ownership. Xxxxx, and Preferred hereby jointly and
severally represent and warrant to Netplex as of the date hereof
and as of the Closing date that Preferred owns and represents 100%
of the PSS Stock which is issued and outstanding, and the PSS
Stock is free and clear of all liens and encumbrances. Other than
as disclosed in Schedule 8.h attached hereto, PSS has outstanding
no stock or securities convertible or exchangeable for any portion
of its stock or containing any profit participation features, nor
any outstanding rights or options to subscribe for or purchase an
equity interest, or any stock or securities convertible into or
exchangeable for an equity interest or any stock appreciation
rights or phantom stock plans. PSS is not subject to any
obligation (contingent or otherwise) to repurchase or otherwise
acquire or retire any membership interest or any warrants, options
or other rights to acquire any membership interest. All of the
outstanding PSS Stock is validly issued, fully paid and
nonassessable.
i. Absence of Certain Developments. Xxxxx and Preferred hereby
jointly and severally represent and warrant to Netplex as of the
date hereof and as of the Closing date that, to their commercially
reasonable knowledge, Preferred and PSS have not since November
30, 1997:
1. borrowed any amount or incurred or become subject to any
material liabilities, except current liabilities incurred in
the ordinary course of business and liabilities under
contracts entered into in the ordinary course of business,
and except for those liabilities disclosed on Schedule 8.f
attached hereto;
2. discharged or satisfied any material lien or encumbrance or
paid any material liability, other than current liabilities
paid in the ordinary course of business;
3. mortgaged, pledged or subjected to any lien, charge or any
other encumbrance, any portion of its assets, except liens
for current property taxes not yet due and payable, and
except for those liabilities disclosed on Schedule 8.f
attached hereto;
4. sold, assigned or transferred any of its assets, except in
the ordinary course of business, or canceled without fair
consideration any material debts or claims owing to or held
by it;
5. sold, assigned, transferred, abandoned or permitted to lapse
any patents, trademarks, trade names, copyrights, trade
secrets or other intangible assets, or disclosed (other than
as required to conduct its business) any material proprietary
confidential information to any person including, but not
limited to, any consultant or client databases;
6. materially compromised, settled or waived any rights with
respect to any accounts or notes;
7. suffered any extraordinary losses or waived any rights of
material value, whether or not in the ordinary course of
business or consistent with past practice;
8. entered into any other material transaction other than in the
ordinary course of business.
j. Tax Matters. Xxxxx and PSS hereby jointly and severally represent
and warrant to Netplex as of the date hereof and as of the Closing
Date that:
1. PSS has duly filed all federal, state and local tax
information and tax returns (the
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"Returns") required to be filed by them (all such returns
being accurate and complete in all material respects) and
have duly paid or made provision for the payment of all taxes
and other governmental charges which have been incurred or
are shown to be due on said Returns or are claimed in writing
to be due from PSS or imposed on PSS or its payroll,
properties, assets, income, franchises, licenses, sales or
use, by any federal, state, local or foreign taxing
authorities (collectively, the "Taxes ") on or prior to the
date hereof other than Taxes which are being contested in
good faith and by appropriate proceedings and as to which PSS
has set aside on its books adequate reserves, or which may be
attributable to the transactions contemplated hereby. PSS has
not made or entered into, and holds no asset subject to, a
consent filed pursuant to Section 341(f) of the Code and the
regulations thereunder or a "safe harbor lease" subject to
former Section 168(f)(8) of the Code, as amended before the
Tax Reform Act of 1986 and the regulations thereunder; PSS is
not required to include in income any amount for an
adjustment pursuant to Section 481 of the Code or the
regulations thereunder; PSS is not a party to, or obligated
under, any agreement or other arrangement providing for the
payment of any amount that would be an "excess parachute
payment" under Section 280G of the Code; PSS is not, and at
all times during the last five years has not been, a United
States real property holding corporation within the meaning
of Section 897 of the Code; and no claim has ever been made
by a taxing authority in a jurisdiction where PSS files tax
returns that it is or may be subject to taxes assessed by
such jurisdiction. Neither the Internal Revenue Service
("IRS") nor any state, local or other taxing authority has
examined any federal, State, local or other tax return of PSS
nor is any such authority in the process of so doing, except
as disclosed on the "Schedule 8.j - Tax Matters";
2. PSS has not been required to give any currently effective
waivers extending the statutory period of limitation
applicable to any federal, state or local return or for any
period; and
3. PSS has in effect no power of attorney or authorization to
anyone to represent it with respect to any Taxes. PSS has not
filed any consolidated federal income tax return with an
"affiliated group" (within the meaning of Section 1504 of the
Internal Revenue Code of 1986, as amended (the "Code")),
where PSS was not the common parent of the group. PSS is not
and has not been, a party to any tax allocation agreement or
arrangement pursuant to which it has any contingent or
outstanding liability to anyone. PSS has not filed a consent
under Section 341(f) of the Code. PSS has provided to Netplex
or its representatives complete and correct copies of its
federal, state and local income tax returns filed for the
years 1995 and 1996, and there exists no proposed assessment
against PSS or notice, whether formal or informal, of any
deficiency or claim for additional Tax (including, without
limitation, interest, additions to tax or penalties);
4. All monies required to be withheld from employees of PSS for
income taxes, social security and unemployment insurance
taxes or collected from customers or others as sales, use or
other taxes have been withheld or collected and paid, when
due, to the appropriate governmental authority, or if such
payment is not yet due, an adequate reserve has been
established.
k. Contracts and Commitments. Xxxxx, Preferred and PSS hereby jointly
and severally represent and warrant to Netplex as of the date
hereof and as of the Closing date that to their commercially
reasonable knowledge, PSS is not a party to any of the following
with respect to the business or property of PSS:
1. agreement or indenture relating to the borrowing of money or
to mortgaging, pledging or otherwise placing a lien on any of
the PSS Stock, unless the same is shown on either the
Schedule 6 or Schedule 8.f attached hereto;
2. guarantee of any obligation for borrowed money or otherwise,
other than endorsements made for collection in the ordinary
course of business;
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3. agreement or commitment with respect to the lending or
investing of funds to or in other persons or entities;
4. joint venture, revenues or fee sharing agreement;
5. lease or agreement under which it is lessee of or holds or
operates any personal property owned by any other party other
than the those certain property leases identified in the
Schedule 6, unless the same is shown on Schedule 6 or
Schedule 8.f attached hereto;
6. contract or group of related contracts with the same party
for the purchase or sale of products or services under which
the undelivered balance of such products and services has a
selling price in excess of $1,000, unless the same is shown
on Schedule 6 or Schedule 8.f attached hereto;
7. other contract or group of related contracts with the same
party continuing over a period of more than six months from
the date or dates thereof, not terminable by it on 30 days'
or less notice without penalties or involving more than
$1,000, unless the same is shown on Schedule 6 or Schedule
8.f attached hereto;
8. contract which prohibits it from freely engaging in business
anywhere in the world, unless the same is shown on Schedule 6
or Schedule 8.f attached hereto;
9. other agreement material to it whether or not entered into in
the ordinary course of business, unless the same is shown on
Schedule 6 or Schedule 8.f attached hereto;
l. To their commercially reasonable knowledge, except as specifically
disclosed in Schedule 6, Xxxxx and Preferred hereby jointly and
severally represent and warrant to Netplex as of the date hereof
and as of the Closing date that:
1. Preferred or PSS has in all material respects performed all
the obligations required to be performed by it to the date of
this Agreement under any contract, and Preferred or PSS is
not in receipt of any claim of default under any contract,
commitment or other agreement to any third party;
2. no event has occurred which with the passage of time or the
giving of notice would result in a breach or default under
any material commitment, or other agreement to which
Preferred or PSS is a party; and
3. Preferred or PSS is a party to no commitment or other
agreement which is materially adverse to its operations,
financial operating results or business prospects; and
4. no customer or supplier has indicated in writing or orally to
Preferred or PSS that it shall stop or decrease the rate of
business done with Preferred or PSS or that it desires to
renegotiate its contract or current arrangement with
Preferred or PSS. The contracts set forth in Schedule 6 are
valid, binding and enforceable by PSS and Preferred in
accordance with their respective terms and are in full force
and effect.
5. To Preferred and PSS's commercially reasonable knowledge,
Netplex has been supplied with a true and correct copy of all
written contracts which are referred to on the Contract
Schedule, together with all amendments, waivers or other
changes thereto.
m. Proprietary Rights. Xxxxx, Preferred and PSS hereby jointly and
severally represent and warrant to Netplex as of the date hereof
and as of the Closing date that:
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1. Set forth on the "Schedule 8.m - Proprietary Rights" is a
complete and accurate list and summary description of all
patents, patent applications, trademarks, service marks,
trade names, corporate names and copyrights owned by
Preferred or PSS or used by Preferred or PSS in the conduct
of the Business. Preferred or PSS owns and possesses all
right, title and interest in and to the proprietary rights
necessary to conduct the Business, provided no representation
is made as to unregistered tradenames, trademarks, or product
names. Preferred or PSS has not received any notices of
infringement, misappropriation, invalidity or conflict from
any third party with respect to such proprietary rights,
neither Preferred nor PSS has infringed, misappropriated or
otherwise conflicted with any proprietary rights of any third
parties and, to the best of both Preferred and PSS's
knowledge, Preferred or PSS's proprietary rights have not
been infringed by any third parties, and Preferred and PSS
have taken all steps reasonably necessary to preserve its
legal rights in all of its Proprietary Rights.
2. Except as set forth on Schedule 8.m, Preferred and PSS have
not granted, and to the best of their knowledge, there are
not outstanding, any options, licenses or agreements of any
kind relating to any Proprietary Rights, nor is Preferred or
PSS bound by or a party to any option, license or agreement
of any kind with respect to any of its Proprietary Rights.
Preferred and PSS are not obligated to pay any royalties or
other payments to third parties with respect to the
marketing, sale, distribution, manufacture, license or use of
any Proprietary Rights or any other property or rights.
3. Preferred and PSS are not aware that any employee or
consultant of Preferred or PSS are obligated under any
agreement (including licenses, covenants or commitments of
any nature) or subject to any judgment, decree or order of
any court or administrative agency, or any other restriction
that would interfere with the use of his or best efforts to
carry out his or her duties for PSS or to promote the
interests of PSS or that would conflict with PSS's Business.
The carrying on of PSS's Business by the employees and
contractors of PSS will not, to the best of Preferred and
PSS's knowledge, conflict with or result in a breach of the
terms, conditions or provisions of, or constitute a default
under, any contract, covenant or instrument under which any
of such employees or contractors or Preferred or PSS are now
obligated. At no time during the conception of or reduction
of any of the Proprietary Rights to practice was any
developer, inventor or other contributor to such patents
operating under any grants from any governmental entity or
agency or private source, performing research sponsored by
any governmental entity or agency or private source or
subject to any employment agreement or invention assignment
or nondisclosure agreement or other obligation with any third
party that could adversely affect Preferred or PSS's rights
in the Proprietary Rights.
n. Litigation; Proceedings. Xxxxx, Preferred and PSS hereby jointly
and severally represent and warrant to Netplex as of the date
hereof and as of the Closing date that except as set forth on the
"Litigation Schedule," there are no actions, suits, proceedings,
orders or investigations pending or threatened against or
affecting the PSS Business at law or in equity, or before or by
any federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality, domestic or
foreign, and to the best of their commercially reasonable
knowledge there is no basis known to Preferred or PSS for any of
the foregoing. No officer, director, employee or agent of
Preferred or PSS has been or is authorized to make or receive, and
to the best of their commercially reasonable knowledge, Preferred
or PSS knows of no such person making or receiving, any bribe,
kickback or other illegal payment at any time. Within the three
years preceding the date hereof, Preferred or PSS has received no
opinion or legal advice in writing to the effect that the PSS
Business is materially exposed from a legal standpoint to any
liability or disadvantage which may be material to the PSS
Business as previously or presently conducted.
o. Brokerage. Xxxxx, Preferred and PSS hereby jointly and severally
represent and warrant to Netplex as of the date hereof and as of
the Closing date that there are no claims for brokerage
commissions, finders fees or similar compensation in connection
with the transactions contemplated by this Agreement based on any
arrangement or agreement made by or on behalf of Preferred or PSS.
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p. Employees. Xxxxx, Preferred and PSS hereby jointly and severally
represent and warrant to Netplex as of the date hereof and as of
the Closing date that to the best of Preferred or PSS's
commercially reasonable knowledge, no key employee nor group of
Preferred or PSS's employees has any present plans to terminate
employment with Preferred or PSS. To the best of their
commercially reasonable knowledge, Preferred or PSS has complied
in all material respects with all applicable laws relating to the
employment of labor, including provisions thereof relating to
wages, hours, equal opportunity, collective bargaining and the
payment of social security and other taxes. Preferred or PSS has
no material labor relations problems, and there has been no union
organization efforts by the employees of Preferred or PSS.
q. Employee Benefit Plans. Xxxxx, Preferred and PSS hereby jointly
and severally represent and warrant to Netplex as of the date
hereof and as of the Closing date that:
1. The "Employee Benefits Schedule" is a true and correct
schedule of any employee benefit plan, as amended, within the
meaning of Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), which Preferred
or PSS maintains or has ever maintained, to which Preferred
or PSS contributes or has ever contributed, or under which
any employee or former employee, officer or former officer,
director or former director of Preferred or PSS is covered or
has benefit rights, and each other arrangement, program or
plan pursuant to which any benefit is or shall be provided to
an employee, former employee or retired employee whether
formal or informal, including, without limitation, those
providing any form of medical, health and dental insurance,
severance pay and benefits continuation, relocation
assistance, vacation pay, tuition aid and matching gifts for
charitable contributions to educational or cultural
institutions (collectively, the "Benefit Plans" or,
individually, a "Benefit Plan."). Except as set forth on the
"Employee Benefits Schedule," Preferred or PSS neither
maintains nor has entered into any Benefit Plan or other
document, plan or agreement which contains any change in
control provisions which would cause an increase or
acceleration of benefits or benefit entitlements to employees
or former employees of Preferred or PSS or their respective
beneficiaries, or any provisions which would cause an
increase in liability of Subsidiary or to Netplex as a result
of the transactions contemplated by this Agreement or any
related action thereafter. Each of such plans that is an
employee pension benefit plan within the meaning of Section
3(2) of ERISA that is intended to be a qualified plan under
Section 401(a) of the Code has been amended to comply in all
material respects with current law as required and each such
plan either has obtained a favorable determination letter
with respect to such amendment or the remedial amendment
period for such amendment under Section 401(b) of the Code
has not expired. Preferred and PSS have not participated in
any conduct that could result in the imposition upon
Preferred, PSS or Netplex of a material civil liability under
section 502(i) of ERISA. None of the employee benefit plans
provide for retiree medical or retiree life insurance
benefits for former employees of Preferred or PSS.
2. Except as set forth in the Schedule 8.q, all accrued
contributions and other payments to be made by Preferred or
PSS to any Benefit Plan through the date of the latest
balance sheet have been made or reserves adequate for such
purposes as of the date of the latest balance sheet have been
set aside therefor and reflected on the latest balance sheet.
Preferred or PSS is not in material default in performing any
of its contractual obligations under any of the Benefit Plans
or any related trust agreement or insurance contract, and
there are no material outstanding liabilities of any Benefit
Plan other than liabilities for benefits to be paid to
participants in such Benefit Plan.
3. There is no pending litigation or threatened litigation or
pending claim (other than benefit claims made in the ordinary
course) by or on behalf of or against any of the Benefit
Plans (or with respect to the administration of any of the
Benefit Plans) now or heretofore maintained by Preferred or
PSS which allege violations of applicable state or federal
law.
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4. Each Benefit Plan is and has been in compliance in all
material respects with, and each such Plan is and has been
materially operated in accordance with, the applicable laws;
rules and regulations governing such Plan, including, without
limitation, the rules and regulations promulgated by the
Department of Labor, the Pension Benefit Guaranty Corporation
("PBGC") and the IRS under ERISA, the Code or any other
applicable law.
5. Neither Preferred or PSS nor any trade or business (whether
or not incorporated) that is or has ever been under common
control, or that is or has ever been treated as a single
employer, the Preferred or PSS under Section 414(b), (c), (m)
or (o) of the Code (each an "ERISA Affiliate") maintains
retiree life or retiree health insurance plans that are
"welfare benefit plans" within the meaning of Section 3 of
ERISA and that provide for continuing benefits or coverage
for any participant or any beneficiary of any participant
except as may be required under the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA") or at
the sole expense of the participant or any participant's
beneficiary. Each of Preferred, PSS and any ERISA affiliate
that maintains a "group health plan" within the meaning of
Section 5000(b)(1) of the Code has complied in all respects
with the notice and continuation requirements of Sections
4980B of the Code, COBRA, Part 6 of Subtitle I of ERISA and
the regulations thereunder.
6. Preferred or PSS does not maintain nor has it ever
maintained, does not contribute nor has it ever contributed
to nor is it nor has it ever been obligated to contribute to,
any Benefit Plan subject to Title IV of ERISA. No condition
exists that presents a material risk to Preferred or PSS of
incurring a liability under Title IV of ERISA with respect to
Benefit Plans, other than liability for premiums due to the
PBGC. The PBGC has not instituted proceedings to terminate
any of the ERISA Plans and no condition known to Preferred or
PSS or Preferred or PSS exists that presents a material risk
that such proceedings shall be instituted. All reporting and
disclosure requirements of ERISA and the Code have been
satisfied in all material respects with respect to each of
the Benefit Plans. Preferred or PSS is not required to
contribute to an employee benefit plan that is a
"multi-employer plan" within the meaning of Section 3(3) of
ERISA nor has been so required during the five year period
ending on the Closing Date.
7. Preferred or PSS does not maintain nor has it ever
maintained, does not contribute to nor has it ever
contributed to nor is it nor has it ever been obligated to
contribute to, any Benefit Plan subject to the requirements
of Section 412 of the Code. No prohibited transaction has
occurred with respect to any Benefit Plan that would result,
directly or indirectly, in the imposition of any excise tax
under Section 495 of the Code; nor has any reportable event
under Section 4043 of ERISA occurred with respect to any
Benefit Plan.
r. Compliance with Laws; Permits; Certain Operations. Xxxxx,
Preferred and PSS hereby jointly and severally represent and
warrant to Netplex as of the date hereof and as of the Closing
date that Preferred or PSS and its officers, directors, agents and
employees have to the best of Preferred or PSS's commercially
reasonable knowledge complied in all material respects with all
applicable laws and regulations of foreign, federal, state and
local governments and all agencies thereof to which Preferred or
PSS may be subject, and no claims have been filed against
Preferred or PSS alleging a violation of any such law or
regulation, except as set forth on the Schedule 8.r. In
particular, but without limiting the generality of the foregoing,
Preferred or PSS has not materially violated, or received a notice
or charge asserting any violation of, the Immigration Reform and
Control Act of 1986, the Occupational Safety and Health Act of
1970, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, the Resource Conservation and Recovery Act
of 1976, the Toxic Substances Control Act of 1976 or any other
state or federal acts (including rules and regulations thereunder)
regulating or otherwise affecting the employment of aliens,
employee health and safety or the environment.
s. Disclosure. Xxxxx, Preferred and PSS hereby jointly and severally
represent and warrant to Netplex as of the date hereof and as of
the Closing date that the schedules, attachments or exhibits to
this
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Agreement do not contain any untrue statement of a material fact
or omit a material fact necessary to make the statements contained
herein or therein, in light of the circumstances in which they
were made, not misleading. To the best of their commercially
reasonable knowledge, there is no material fact which has not been
disclosed in writing to Netplex of which any officer, director or
key employee of Preferred or PSS is aware and which materially
adversely affects or could reasonably be anticipated to materially
adversely affect the PSS's Business.
t. Notification. Xxxxx, Preferred and PSS hereby jointly and
severally represent and warrant to Netplex as of the date hereof
and as of the Closing date that from the date hereof to the
Closing, Xxxxx, Preferred or PSS shall promptly inform Netplex in
writing of any material variances from the representations and
warranties contained in this Section 8.
u. Closing Date. Xxxxx, Preferred and PSS hereby jointly and
severally represent and warrant to Netplex as of the date hereof
and as of the Closing date that all of the representations and
warranties in this Agreement and all information delivered in any
schedule, attachment or exhibit hereto or in any certificate
delivered to Netplex are true and correct in all material respects
on the date of this Agreement and shall be materially true and
correct in all respects on the Closing Date.
9. Representations and Warranties of Netplex. Netplex hereby represents
and warrants to Preferred and Xxxxx as of the date hereof and as of the
Closing Date that:
a. Corporate Organization and Power. Netplex is a corporation duly
organized and validly existing under the laws of the State of New
York with full corporate power and authority to enter into this
Agreement and the other agreements contemplated hereby and perform
its obligations hereunder and thereunder. Netplex is qualified to
do business and is in good standing in the jurisdictions in which
the ownership of properties or the conduct of business requires it
to be so qualified. Netplex has all requisite power and authority
and all material licenses, permits and other authorizations
necessary to own and operate its properties and to carry on its
businesses as now conducted.
b. Authorization. The execution, delivery and performance by Netplex
of this Agreement and the other agreements contemplated hereby and
the consummation of the transactions contemplated hereby and
thereby have been duly and validly authorized by all requisite
corporate action, and no other corporate proceedings on the part
of Netplex is necessary to authorize the execution, delivery or
performance of this Agreement or the other agreements contemplated
hereby. This Agreement and the other agreements contemplated
hereby each constitute a valid and binding obligation of Netplex,
enforceable against Netplex in accordance with their respective
terms.
c. No Violation. To the best of its commercially reasonable
knowledge, Netplex is not subject to or obligated under its
certificate of incorporation or by laws, any applicable law, rule
or regulation of any governmental authority, or any agreement or
instrument, or any license, franchise or permit, or subject to any
order, writ, injunction or decree which would be breached or
violated by its execution, delivery or performance of this
Agreement or the other agreements contemplated hereby. Netplex
shall comply with all applicable laws, and with all applicable
rules and regulations of all governmental authorities in
connection with its execution, delivery and performance of this
Agreement and the other agreements contemplated hereby and the
transactions contemplated hereby and thereby.
d. Governmental Authorities and Consents. After the Closing, Netplex
will submit any notice, report or other filing with any
governmental authority in connection with the execution or
delivery by it of this Agreement or the consummation of the
transactions contemplated hereby. No consent, approval or
authorization of any governmental or regulatory authority or any
other party or person is required to be obtained by Netplex in
connection with its execution, delivery and performance of this
Agreement or the transactions contemplated hereby.
11
e. Brokerage. There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or
agreement made by or on behalf of Netplex.
f. Notification. From the date hereof to the Closing, Netplex shall
promptly inform PSS in writing of any material variances from the
representations and warranties contained in this Section 9.
g. Closing Date. All of the representations and warranties contained
in this Section 9 and elsewhere in this Agreement and all
information delivered in any schedule, attachment or exhibit
hereto or in any certificate delivered to PSS are true and correct
in all material respects on the date of this Agreement and shall
be true and correct in all material respects on the Closing Date.
h. Litigation; Proceedings. Except as set forth in Netplex's public
filings and as have been disclosed to Preferred, there are no
actions, suits, proceedings, orders or investigations pending or
threatened against or affecting Netplex at law or in equity, or
before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which would restrict Netplex's performance of
this Agreement and to the best of Netplex's commercially
reasonable knowledge, there is no basis known to Netplex for any
of the foregoing. No officer, director, employee or agent of
Netplex has been or is authorized to make or receive, and to the
best of Netplex's commercially reasonable knowledge, Netplex knows
of no such person making or receiving, any bribe, kickback or
other illegal payment at any time. Within the three years
preceding the date hereof, Netplex has received no opinion or
legal advice in writing to the effect that Netplex is materially
exposed from a legal standpoint to any liability or disadvantage
which may be material to its business as previously or presently
conducted.
i. Compliance with Laws; Permits; Certain Operations. Netplex and its
officers, directors, agents and employees have to the best of
Netplex's commercially reasonable knowledge complied in all
material respects with all applicable laws and regulations of
foreign, federal, state and local governments and all agencies
thereof to which Netplex may be subject, and no claims have been
filed against Netplex alleging a violation of any such law or
regulation, except as set forth on the "Schedule 9.i -
Compliance." In particular, but without limiting the generality of
the foregoing, to the best of its commercially reasonable
knowledge, Netplex has not materially violated, or received a
notice or charge asserting any violation of, the Immigration
Reform and Control Act of 1986, the Occupational Safety and Health
Act of 1970, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Resource Conservation
and Recovery Act of 1976, the Toxic Substances Control Act of 1976
or any other state or federal acts (including rules and
regulations thereunder) regulating or otherwise affecting the
employment of aliens, employee health and safety or the
environment.
j. SEC Reports. Since January 1, 1996, Netplex has filed all forms,
financial statements, documents and reports with the U.S.
Securities and Exchange Commission (the "SEC") required to filed
by it pursuant to Federal securities laws and the SEC rules and
regulations thereunder (the "SEC Reports"). The SEC Reports were
prepared in all material respects in accordance with the
requirements of applicable law, including the Securities Act and
the Exchange Act and the rules and regulations thereunder and did
not at the time they were filed contain any untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in light of the circumstances
under which they were made, not misleading. Netplex further
represents that the capital structure and outstanding shares of
Netplex as set forth in the SEC Reports are accurate as of the
dates of the SEC Reports. Netplex further represents that it has
disclosed to Preferred the changes, if any, which have occurred in
the capital structure and outstanding shares of Netplex since the
date of its most recent SEC Report.
12
10. Conditions to Closing.
a. Netplex's obligation to complete the Closing shall be subject to,
among other things, the following conditions having been fulfilled
to the satisfaction of Netplex prior to the Closing Date:
1. there shall have been no material adverse change in the PSS
Business from the Contract Date to the Closing Date;
2. receipt of a certificate signed by Xxxxx, individually and as
an officer of Preferred, to the effect that the
representations and warranties contained in this Agreement
are true, complete and correct as though they had been
repeated at and as of the Closing and that nothing shall have
come to his attention that would make any representation or
warranty materially incorrect or incomplete.
b. Preferred and PSS's obligation to complete the Closing shall be
subject to, among other things, the following conditions having
been fulfilled to the satisfaction of Preferred and PSS prior to
the Closing Date:
1. there shall have been no material adverse change in the
business or affairs of Netplex from the Contract Date to the
Closing Date;
2. receipt of a certificate signed by Netplex to the effect that
the representations and warranties contained in this
Agreement are true, complete and correct as though they had
been repeated at and as of the Closing and that nothing shall
have come to their attention that would make any
representation or warranty materially incorrect or
incomplete.
c. The parties' obligation to complete the Closing shall be subject
to, among other things, the following conditions having been
fulfilled to the satisfaction of the parties prior to the Closing:
1. approval of this Agreement, and all agreements and actions
contemplated thereby, including without limitation the
employment agreements and the Acquisition Transaction by the
boards of directors of Preferred, PSS and Netplex; and
2. all necessary regulatory consents and approvals to the
Closing, if any, shall have been obtained.
11. Indemnification of Netplex. From and after the Closing, Preferred, PSS
and/or Xxxxx, with respect to the particular representation or warranty
made by it or him, agree to indemnify in full Netplex and their
officers, directors, employees, agents and stockholders (collectively,
"Netplex Indemnified Parties") and hold them harmless against any loss,
deficiency, damage, expense or cost, including reasonable legal
expenses, (collectively, "Losses") which any of the Netplex Indemnified
Parties may suffer, sustain or become subject to, as a result of:
a. any material misrepresentation in any of the representations or
breach of any of the warranties of Preferred, PSS and Xxxxx
contained in Section 8 of this Agreement or in any of the
schedules or certificates delivered by Preferred, PSS, and Xxxxx
pursuant to this Agreement;
b. any material breach of, or failure to perform, any agreement or
covenant of Preferred, PSS or Xxxxx contained in this Agreement;
c. any liabilities, absolute or contingent, known or unknown to
employees
13
or former employees under any employee benefit plan of Preferred
or PSS, other than for vacation, sick and personal leave accrued
to the current employees of Preferred or PSS, if the same are
unfunded; and
d. any liabilities, absolute or contingent, known or unknown,
relating to any litigation now pending or threatened against
Preferred or PSS.
The total amount that the Netplex Indemnified Parties may be entitled
to receive under this Section 11 shall not exceed the amounts paid as
consideration hereunder or paid under the Earn Out Agreement between
Preferred and Netplex. Any claim for indemnity by the Netplex
Indemnified Parties shall be barred unless bona fide notice thereof is
given to the parties to be charged within fifteen months after the
Closing Date. In addition, Netplex agrees that it will first proceed
against any consideration paid or payable under the Earn Out Agreement,
and to the extent such consideration is insufficient, it will proceed
against the cash consideration paid hereunder. Netplex also agrees that
its ability to proceed against such cash consideration shall be limited
by the following schedule: (i) if Netplex notifies Preferred of a claim
within six months of the Closing Date, then Netplex will be able to
proceed against all of such cash consideration; (ii) if Netplex
notifies Preferred of a claim within six to nine months of the Closing
Date, then Netplex will be able to proceed only against 75% of such
cash consideration; (iii) if Netplex notifies Preferred of a claim
within nine to twelve months of the Closing Date, then Netplex will be
able to proceed only against 50% of such cash consideration; and (iv)
if Netplex notifies Preferred of a claim within twelve to fifteen
months after the Closing Date, then Netplex will be able to proceed
only against 25% of such cash consideration.
12. Indemnification of Preferred and Xxxxx. From and after the Closing,
Netplex agrees to indemnify in full Xxxxx and Preferred and their
officers, directors, employees, agents and members (collectively,
"Preferred Indemnified Parties") and hold them harmless against any
loss, deficiency, damage, expense or cost (including reasonable legal
expenses) (collectively, "Losses") which any of the Preferred
Indemnified Parties may suffer, sustain or become subject to, as a
result of:
a. any material misrepresentation in any of the representations or
breach of any of the warranties of Netplex contained in Article 10
of this Agreement or in the certificate delivered by Netplex
pursuant to this Agreement;
b. any material breach of, or failure to perform, any agreement or
covenant of Netplex contained in this Agreement; and
c. any liability of PSS of any nature arising out of any occurrence
after the Closing.
The total amount that the Preferred Indemnified Parties may be entitled to
receive under this Section 12 shall not exceed $750,000. Any claim for indemnity
by the Preferred Indemnified Parties shall be barred unless bona fide notice
thereof is given to the parties to be charged within fifteen months after the
Closing Date.
13. Exhibits and Schedules. The Exhibits and Schedules to this Agreement
are a material part of this Agreement.
14. Delivery of Schedules. The parties hereto acknowledge that as of the
date of execution of this Agreement, Preferred, PSS or Xxxxx have not
delivered to Netplex all of the schedules called for in this Agreement
(the "Schedules"). Within five (5) days after the execution of this
Agreement (the "Delivery Period"), Preferred, PSS or Xxxxx shall
deliver the Schedules to Netplex, and Netplex shall have five (5) days
thereafter (the "Review Period") to review the Schedules. If: (a)
during the Review Period, Netplex shall notify Preferred, PSS and Xxxxx
that the Schedules are not acceptable (in Netplex's sole discretion),
or (b) Preferred, PSS and Xxxxx shall fail to meet the Delivery Period,
then this Agreement shall immediately terminate without liability to
any party thereto.
15. Expenses. Each of Preferred, PSS, Xxxxxx X. Xxxxx, Xx., and Netplex
shall be liable and responsible for the respective expenses incurred by
each in connection with the transactions contemplated by this
14
Agreement, including the cost of evaluations, investigations,
appraisals, bank fees, closing costs and professional fees and
expenses, including fees of counsel and accountants.
16. Governing Law. This agreement and the respective rights, duties and
obligations of the parties hereunder shall be governed and construed in
accordance with the laws of the Commonwealth of Virginia without giving
effect to principles of conflicts of law thereunder.
17. Counterparts; Facsimile Signatures. This Agreement may be executed by
the parties hereto in counterparts, each of which shall be deemed to be
original, but all such counterparts shall constitute one and the same
instrument, and all signatures need not appear on any one counterpart.
Any facsimile signatures received by a party to this Agreement shall be
accepted as the original signatures of the party executing the document
received by facsimile.
18. Further Documentation. The parties agree to execute such other
documents as may be reasonably necessary to consummate the transactions
contemplated by this Agreement.
19. Disclosures. Any information disclosed on any schedule to this
Agreement shall be deemed a disclosure in all other schedules.
20. Notices. All notices, requests, demands and other communications
hereunder must be in writing and shall be deemed to have been duly
given upon receipt if delivered by hand, sent by telecopier or courier,
or three (3) days after such communication is mailed within the
continental United States by first class certified mail, return receipt
requested, postage prepaid, to the other party, in each case addressed
as follows:
a. if to PSS or Netplex, to President, The Netplex Group, Inc., 0000
Xxxxxxxxxx Xxxxx, Xxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000, facsimile
number (000) 000-0000;
b. if to Preferred, to President, Preferred Systems Solutions, Inc.,
00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx 00000, with a copy to
Xxx X. Xxxxxx, Esq., Xxxx Xxxxx Xxxx & XxXxxx LLP, 0000 X Xxxxxx,
XX, Xxxxxxxxxx, XX 00000, facsimile number (000) 000-0000; and
c. if to Xxxxxx X. Xxxxx, Xx.; at 00000 Xxxxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxx 00000, with a copy to Xxx X. Xxxxxx, Esq., Xxxx Xxxxx
Xxxx & XxXxxx LLP, 0000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000,
facsimile number (000) 000-0000.
d. Addresses may be changed by written notice sent to the other party
at the last recorded address of that party.
21. No Waiver. The failure by either party to this Agreement at any time to
require performance or compliance by the other of any of its
obligations or agreements shall in no way waive or otherwise affect the
right to require such performance or compliance at any time thereafter.
SIGNATURE PAGE FOLLOWS
15
WHEREFORE, the parties hereto have executed this Agreement on
January 20, 1998.
The Netplex Group, Inc. Preferred Systems Solutions, Inc.
/S/ Xxxx X. Xxxx /s/ Xxxxxx X. Xxxxx, Xx.
------------------------- ----------------------------------
Xxxx X. Xxxxx Xxxxxx X. Xxxxx, Xx.
President President
The PSS Group, Inc.
/s/ Xxxxxx X. Xxxxx, Xx. /s/ Xxxxxx X. Xxxxx, Xx.
-------------------------- --------------------------
Xxxxxx X. Xxxxx, Xx. Xxxxxx X. Xxxxx, Xx., Individually
Managing Director
16
