Exhibit 2.2
ASSET PURCHASE AGREEMENT
This Agreement made as of the 24th day of June, 2002
BETWEEN:
WORKSTREAM USA INC., a corporation incorporated under the laws
of Delaware (hereinafter referred to as the "Purchaser")
AND:
PURECARBON, INC.,
a corporation incorporated under the laws of the State of
Delaware (hereinafter referred to as the "Vendor")
WHEREAS:
A. The Vendor carries on the business of online career site hosting for
corporate enterprises in the United States, (the "Business");
B. The Vendor wishes to sell and assign to the Purchaser, a wholly-owned
subsidiary of Workstream, Inc. (the "Parent"), and the Purchaser wishes to
purchase from the Vendor certain of the assets, and to assume certain of the
liabilities, of the Business on the terms and subject to the conditions
hereinafter contained.
NOW THEREFORE in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration paid by each of the parties
hereto to each of the other parties hereto (the receipt and sufficiency of which
are hereby acknowledged), it is agreed among the parties hereto as follows:
1. INTERPRETATION
1.1. Schedules. The Schedules that are attached to this Agreement are
incorporated in this Agreement by reference and are deemed to be part
hereof.
1.2. Currency. All dollar amounts referred to in this Agreement are in
lawful money of the United States of America.
1.3. Choice of law and attornment. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New
York without reference to principles of conflicts of law.
1.4. Time of essence. Time shall be of the essence of the agreement.
2. PURCHASE AND SALE
2.1. Purchased Assets. On the terms and subject to the fulfillment of the
conditions set forth herein, on the Closing Date the Vendor hereby
agrees to sell, transfer set over, convey, assign and deliver to the
Purchaser, and the Purchaser hereby agrees to purchase and accept from
the Vendor all right, title and interest in and to the assets, rights
and interests of the Vendor listed on Schedule 2.1 attached hereto (the
"Purchased Assets"). The purchase and sale of the Purchased Assets (the
"Closing") shall occur on July 1, 2002 or subject to Section 10 if the
conditions to Closing are not satisfied or waived by the appropriate
party hereto by July 1, 2002 as soon as reasonably practicable after
all such conditions are satisfied or waived (the "Closing Date").
2.2. Excluded Liabilities. With the exception of the liabilities and
obligations specified in Schedule 2.2 (collectively, the "Assumed
Liabilities"), the Purchaser will not assume and will not be liable
for, any obligations, commitments or liabilities of or claims against
the Vendor (whether absolute, accrued or contingent).
2.3. Purchase Price. As consideration for the Purchased Assets, the
Purchaser agrees on the Closing Date to (i) deliver to the Vendor that
number of shares (rounded up to a whole share) of common stock, no par
value, of the Parent (the "Initial Shares"), equal to 1,000,000 divided
by the closing price per share of the Parent's common stock as quoted
on NASDAQ as of the last trading day prior to the Closing Date (the
"Closing Share Price") and (ii) to assume the Assumed Liabilities, such
liabilities not to exceed $70,000 in the aggregate ((i) and (ii),
collectively, the "Initial Purchase Price"). As additional
consideration (the "Contingent Purchase Price"), the Purchaser agrees
to deliver to Vendor that number of shares, no par value, of common
stock of the Parent (rounded up to a whole share) equal to 500,000
divided by the Closing Share Price (the "Additional Shares") on or
prior to August 15, 2003 if for the period commencing July 1, 2002
through June 30, 2003 (the "Relevant Period"), the gross revenues from
the operations of the Business are equal to or exceed $1,000,000. The
determination of such gross revenues shall be made in accordance with
generally accepted accounting principles by PriceWaterhouseCoopers,
Inc., independent auditors. The fees for such auditors shall be paid by
the Purchaser. Such determination shall be made within forty-five (45)
days of the expiration of the Relevant Period and shall be binding upon
the parties hereto.
2.4. Allocation of Purchase Price. The Vendor and the Purchaser shall agree
to an allocation of the Purchase Price within sixty (60) days after the
Closing Date. In the event they are unable to agree to such allocation,
then the matter will be finally and conclusively determinated by an
independent accounting firm of national standing (the "Arbiter")
selected by Vendor and Purchaser, which firm shall not be the regular
accounting firm of Purchaser or Vendor. The Arbiter will promptly
determine the allocation of the Purchase Price which report shall be
conclusive and binding upon the parties. The Vendor and the Purchaser
shall file their respective tax returns prepared and make any tax
elections in accordance with such allocation.
2.5. Payment of taxes. The Purchaser shall be liable for and shall pay all
applicable federal and state sales taxes, excise taxes and all other
taxes (other than income taxes of the Vendor), duties and other like
charges properly payable on and in connection with the conveyance and
transfer of the Purchased Assets to the Purchaser. The Vendor will do
and cause to be done such things as are reasonably requested to enable
the Purchaser to comply with such obligation in an efficient manner.
3. REPRESENTATIONS AND WARRANTIES
3.1. Representations and warranties by the Vendor. The Vendor hereby
represents and warrants to the Purchaser as follows, and confirms that
the Purchaser is relying upon the accuracy of each of such
representations and warranties in connection with the purchase of the
Purchased Assets and the completion of the other transactions
hereunder:
3.1.1. Corporate Authority and Binding Obligation. The Vendor has good
right, full corporate power and absolute authority to enter
into this Agreement and, upon receipt of the approval of its
stockholders, to consummate the transactions contemplated
hereby. The Vendor and its board of directors have taken all
necessary actions to approve or authorize, validly and
effectively, the entering into of, and the execution, delivery
and performance of, this Agreement and the sale and transfer of
the Purchased Assets by the Vendor to the Purchaser. This
Agreement is a legal, valid and binding obligation of the
Vendor, enforceable against it in accordance with its terms.
3.1.2. Contractual and Regulatory Approvals. The Vendor is not under
any obligation, contractual or otherwise, to request or obtain
the consent of any person in order to consummate the
transaction contemplated hereby, no permits, licenses,
certifications, authorizations or approvals of, or
notifications to, any federal, state, municipal or local
government or governmental agency, board, commission or
authority are required to be obtained by the Vendor in order to
consummate the transactions contemplated hereby.
3.1.3. Status and Governmental Licenses.
3.1.3.1. The Vendor is a corporation duly incorporated,
validly existing and in good standing under the laws
of its jurisdiction of incorporation. The Vendor has
all necessary corporate power to own, lease and
operate its assets, properties and business and to
carry on its business as it is now being conducted
and is in good standing in every jurisdiction in
which the nature of its business or the location of
its properties requires such qualification or
licensing.
3.1.3.2. The Vendor holds all necessary licenses,
registrations and qualifications in each jurisdiction
in which,
(i) it owns any of the Purchased Assets, or
(ii) the nature of the Purchased Assets or any part
thereof, makes such qualification necessary or
desirable to enable the Purchased Assets to be
owned and operated.
The Vendor is in compliance in all material respects
with the terms and conditions of such licenses,
registrations and qualifications. There are no
proceedings in progress, pending or, to the best of
the knowledge of the Vendor, threatened, which could
result in the revocation, cancellation or suspension
of any of the licenses, registrations or
qualifications, the revocation, cancellation or
suspension of which would materially adversely affect
the Vendor or its assets, properties or business.
3.1.4. Compliance with Constituent Documents, Agreements and Laws. The
execution, delivery and performance of this Agreement and each
of the other agreements contemplated or referred to herein by
the Vendor, and the completion of the transactions contemplated
hereby, will not constitute or result in a violation, breach or
default, or cause the acceleration of any obligations under:
3.1.4.1. any material term or provision of any of the
certificate of incorporation, by-laws or other
constituent documents of the Vendor, or
3.1.4.2. the material terms of any indenture, agreement
(written or oral), instrument or understanding or
other obligation or restriction to which the Vendor
is a party or by which it is bound, or
3.1.4.3. any term or provision of any material licenses or any
order of any court, governmental authority or
regulatory body or any law or regulation applicable
to the Vendor.
3.1.5. Absence of Undisclosed Liabilities. Other than the Assumed
Liabilities, there are no liabilities (contingent or otherwise)
of the Vendor of any kind whatsoever in respect of which the
Purchaser may become liable for on or after the consummation of
the transactions contemplated by this Agreement.
3.1.6. Litigation. There are no actions, suits or proceedings,
judicial or administrative (whether or not purportedly on
behalf of the Vendor) pending or, to the best of the knowledge
of the Vendor, threatened, by or against or affecting the
Vendor which relate to the Purchased Assets, at law or in
equity, or before or by any court or any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign. These
are no grounds on which any such actions suit or proceeding
might be commenced with any reasonable likelihood of success.
3.1.7. Title to Assets. The Vendor is the owner of and has good and
marketable title to all of the Purchased Assets.
3.1.8. Works Orders and Deficiencies. There are no work orders,
non-compliance orders, deficiency notices or other such notices
relative to the Purchased Assets that are outstanding and which
have been issued by any regulatory authority, police or fire
department, sanitation, environment, labor, health or other
governmental authorities or agencies. There are no matters
under discussion with any such department or authority relating
to work orders, non-compliance orders, deficiency notices or
other such notices. None of the Purchased Assets are being
operated, in a manner that is in contravention in any material
respect of any statute, regulation, rule, code, standard or
policy.
3.1.9. Intellectual Property.
3.1.9.1. Schedule 3.1.9 attached hereto lists and contains a
complete description of:
(i) all patents, patent applications and
registrations, trademarks, trademark
applications and registrations, copyrights,
copyright applications and registrations,
trade names and industrial designs, domestic
or foreign, owned or used by the Vendor
relating to the Purchased Assets,
(ii) all trade secrets, know-how, inventions and
other intellectual property owned or used by
the Vendor relating to the Purchased Assets,
(iii) all domain names, URLs, source code, object
code, management tools, database content,
contact information, support software and
resumes related to the Web Sites, and
(iv) all computer systems and application software,
including, without limitation, all
documentation relating thereto and the latest
revisions of all related object and source
codes therefore, owned or used by the Vendor
relating to the Purchased Assets,
(all of the foregoing being collectively called the
"Intellectual Property").
3.1.9.2. The Vendor has good and valid title to all of the
Intellectual Property, free and clear of any and all
liens and encumbrances, except in the case of any
Intellectual Property licensed to the Vendor.
Complete and correct copies of all agreements whereby
any rights in any of the Intellectual Property have
been granted or licensed to or from the Vendor have
been provided to the Purchaser. No royalty or other
fee is required to be paid by the Vendor to any other
person in respect of the use of any of the
Intellectual Property except as provided in such
agreements delivered to the Purchaser. The Vendor has
used its best efforts to protect its rights in the
Intellectual Property. The Vendor has the exclusive
right to use all of the Intellectual Property and has
not granted any license or other rights to any other
person in respect of such Intellectual Property.
Complete and correct copies of all agreements whereby
any rights in any of the Intellectual Property have
been granted or licensed by the Vendor to any other
person have been provided to the Purchaser. The
Vendor is entitled to assign all of its rights and
interest in and to the Intellectual Property to the
Purchaser.
3.1.9.3. There are no restrictions on the ability of the
Vendor or any successor to or assignee from the
Vendor to use and exploit all rights in the
Intellectual Property. All statements contained in
all applications for registration of the Intellectual
Property were true and correct as of the date of this
Agreement of such applications. Each of trademarks
and trade names included in the Intellectual Property
is in use.
3.1.9.4. The use of the Purchased Assets and the use of the
Intellectual Property does not infringe or otherwise
encroach upon, and as the date hereof, the Vendor has
not received any notice, complaint, threat or claim
alleging infringement of, any patent, trade xxxx,
trade name, copyright, industrial design, trade
secret or other Intellectual Property or propriety
right of any other person and the use of the
Purchased Assets does not include any activity which
may constitute passing off.
3.1.10. Partnerships or Joint Ventures. The Vendor is not, in relation
to the Purchased Assets, a partner in any partnership, joint
venture, profit-sharing arrangement or other association of any
kind and is not party to any agreement under which the Vendor
agrees to carry on any part of the Business in such manner or
by which the Vendor agrees to share any revenue or profit of
the Business with any other person.
3.1.11. Customers. The Vendor has previously delivered to the Purchaser
a true and complete list of all customers of the Business as of
the date of this Agreement. The Vendor is the sole and
exclusive owner of, and has the unrestricted right to use, such
customer list. Neither the customer list nor any information
relating to the customers of the Business have, within two
years prior to the date of this Agreement, been made available
to any person other than the Purchaser. The Vendor has no
knowledge of any facts that could reasonably be expected to
result in the loss of any customers or sources of revenues of
the Purchased Assets that in the aggregate would be material to
the Business or the condition of the Purchased Assets.
3.1.12. Licenses, Agency and Distributorship Agreements. Except as
contained on Schedule 3.1.12, there are no agreements to which
the Vendor is a party or by which it is bound under which the
right to manufacture, use or market any product, service,
technology, information, data, computer hardware or software or
other property used in or produced or sold in relation to the
Purchased Assets has been granted, licensed or otherwise
provided to the Vendor or by the Vendor to any other person, or
under which the Vendor has been appointed or any person has
been appointed by the Vendor as an agent, distributor, licensee
or franchisee for any of the foregoing.
3.1.13. Material Agreements. Except as set forth on Schedule 3.1.13,
the Vendor is not a party to or bound by any outstanding or
executor agreement, contract or commitment, whether written or
oral.
3.1.14. Good Standing of Agreements. The Vendor is not in default or
breach in any material respect of any of its obligations under
any one or more contracts, agreements (written or oral),
commitments, indentures or other instruments to which it is a
party or by which it is bound relating to the Purchased Assets,
and there exists no state of facts which, after notice or lapse
of time or both, would constitute a material default or breach.
All such contracts, agreements, commitments, indentures and
other instruments are now in good standing and in full force
and effect without amendment thereto, the Vendor is entitled to
all benefits thereunder and, to the best of the knowledge of
the Vendor, the other parties to such contracts, agreements,
commitments, indentures and other instruments are not in
default or breach of any of their obligations thereunder. There
are no contracts, agreements, commitments, indentures or other
instruments relating to the Purchased Assets under which the
Vendor's rights or the performance of its obligations are
dependent on or supported by the guarantee of or any security
provided by any other person.
3.1.15. Compliance with Laws. In relation to the Purchased Assets and
the operation of the Business, the Vendor is not in violation
in any material respects of any federal, state or other law,
regulation or order of any government or governmental or
regulatory authority, domestic or foreign.
3.1.16. Financial Statements. The financial statements of the Vendor
for the fiscal years ended June 30, 1999, 2000 and 2001 and for
the eleventh month period ended May 30, 2002, copies of which
are attached as Schedule 3.1.16, were prepared in accordance
with generally accepted accounting principles applied on a
consistent basis and accurately present the financial position
and results of operations of the Vendor at the dates, and for
the periods, to which they relate. Since December 31, 2002
there has not been any material adverse change in the financial
condition, results of operations, properties, liabilities,
prospects or business of the Vendor, and, the Vendor is not
aware of any other factors which could reasonably be expected
to have a material adverse effect on the Business.
3.1.17. Taxes. The Vendor has duly prepared and timely filed all
federal and state tax returns which it was required to file,
and has paid all taxes due and owing by the Vendor and all
assessments received by it to the extent that such taxes have
become due and payable. The federal income tax returns of the
Vendor have not been audited by the Internal Revenue Service.
No deficiency assessment or proposed adjustment of the Vendors
federal income tax for state or municipal taxes is pending, and
the Vendor has no knowledge of any proposed liability for any
tax to be imposed upon the Vendor or any other Vendor's
property or assets.
3.1.18. Account Receivables. The Purchaser shall collect, within 180
days of the Closing Date, not less than $180,000 from the
accounts receivables included in the Purchased Assets.
3.1.19. Disclosure. No representation or warranty contained in this
Section 3.1 and no statement contained in any schedule,
certificate, list, summary or other disclosure document
provided or to be provided by the Purchaser hereto or in
connection with the transactions contemplated hereby, contains
or will contain any untrue statement of a material fact, or
omits or will omit to state any material fact which is
necessary in order to make the statements contained therein not
misleading.
3.2. Representations and warranties by the Purchaser. The Purchaser hereby
represents and warrants to the Vendor as follows, and confirms that the
Vendor is relying on the accuracy of each of such representations and
warranties in connection with the sale of the Purchased Assets and the
completion of the other transactions hereunder:
3.2.1. Corporate Authority and Binding Obligation. The Purchaser is a
corporation duly incorporated and validly subsisting in all
respects under the laws of its jurisdiction of incorporation.
The Purchaser has good right, full corporate power and absolute
authority to enter into this Agreement and to purchase the
Purchased Assets from the Vendor in the manner contemplated
herein and to perform all of the Purchaser's obligations under
this Agreement. The Purchaser and its shareholders and board of
directors have taken all necessary or desirable actions, steps
and corporate and other proceedings to approve or authorize,
validly and effectively, the entering into of, and the
execution, delivery and performance of, this Agreement and the
purchase of the Purchased Assets by the Purchaser from the
Vendor. This Agreement is a legal, valid and binding obligation
of the Purchaser, enforceable against it in accordance with its
terms.
3.2.2. Contractual and Regulatory Approvals. The Purchaser is not
under any obligation, contractual or otherwise to request or
obtain the consent of any person, and no permits, licenses,
certifications, authorizations or approvals of, or
notifications to, any federal, state, municipal or local
government or governmental agency, board, commission or
authority are required to be obtained by the Purchaser in
connection with the execution, delivery or performance by the
Purchaser of this Agreement or the completion of any of the
transactions contemplated herein.
3.2.3. Compliance with Constituent Documents, Agreements and Laws. The
execution, delivery and performance of this Agreement and each
of the other agreements contemplated or referred to herein by
the Purchaser, and the completion of the transactions
contemplated hereby, will not constitute or result in a
violation or breach of or default under:
3.2.3.1. any term or provision of any of the amended and
restated certificate of incorporation, by-laws or
other constituent documents of the Purchaser,
3.2.3.2. the terms of any indenture, agreement (written or
oral), instrument or understanding or other
obligation or restriction to which the Purchaser is a
party or by which it is bound, or
3.2.3.3. any term or provision of any licenses, registrations
or qualification of the Purchaser or any order of any
court, governmental authority or regulatory body or
any applicable law or regulation of any jurisdiction.
3.2.4. Investment Representations. For the purpose of this Section
3.2.4., the term "Shares" shall include the Initial Shares and
the Additional Shares and Vendor agrees that it shall restate
the representations set forth in this Section 3.2.4. at the
time of and as a condition to the issuance of any Additional
Shares.
3.2.4.1. Vendor is acquiring the Shares solely for the account
of Vendor and for investment purposes only and not
with a view to, or for, their resale, distribution,
or for the account, in whole or in part, of others.
Vendor recognizes the restrictions on the
transferability of the Shares and is able to bear the
substantial economic risk of an investment therein,
including a complete loss thereof, for an indefinite
period of time.
3.2.4.2. Vendor understands that the issuance of the Shares is
intended to be exempt from registration under the
Securities Act of 1933 (the "Securities Act") by
virtue of Section 4(2) thereof and/or Regulation D
thereunder, and applicable state securities laws.
Vendor will not sell, hypothecate or otherwise
transfer any or all of the shares, in whole or in
part, other than in accordance with the following
provisions:
3.2.4.3. Pursuant to a registration statement under the
Securities Act which has become effective, and a
prospectus related thereto which is current, with
respect to the Shares to be disposed of, and if
required, a registration statement under applicable
state securities laws; or
3.2.4.4. Pursuant to a specific exemption from registration
under the Securities Act and applicable state
securities laws, but only upon Vendor first having
delivered to Parent a favorable reasoned written
opinion of counsel for Vendor, reasonably
satisfactory in form and substance to Parent, to the
effect that the proposed sale or transfer is exempt
from registration under the Securities Act and any
applicable state securities laws.
3.2.4.5. Vendor understands that the Shares will not be
registered under the Securities Act or applicable
state securities laws and that such Shares must be
held indefinitely, unless the subsequent disposition
thereof is registered under the Securities Act and
applicable state securities laws or an exemption from
such registration is available. Vendor acknowledges
that Purchaser and Parent have not undertaken to
register the Shares, and will have no obligation to
register the Shares pursuant to the Securities Act or
any state securities laws or to assist Vendor in
complying with any exemption from such registration
requirements.
3.2.4.6. Vendor acknowledges that the Shares, and any
substitutions or replacements thereof, shall bear a
legend in substantially the following form:
"The securities represented by this certificate
have not been registered under the Securities Act
of 1933, as amended, and may not be sold,
hypothecated or otherwise transferred or disposed
of in the absence of such registration, unless an
exemption from the requirement of such registration
is available under the circumstances at the time
obtaining and demonstrated by opinion of counsel
satisfactory to the Company."
3.2.4.7. Vendor further represents and warrants that in order
to make an informed decision in connection with the
purchase of the Shares;
3.2.4.8. Vendor has reviewed the merits and risks of an
investment in the Shares with tax and legal counsel
and with an investment advisor to the extent deemed
advisable by Vendor;
3.2.4.9. Vendor recognizes that an investment in the Shares
involves a number of significant risks. Vendor or its
agents or attorneys, have such knowledge and
experience in financial and business matters as to be
capable of evaluating the merits and risks of an
investment in the Shares; and
3.2.4.10. Vendor or its agents or attorneys, (i) have been
provided with sufficient information with respect to
the business of the Parent and has carefully reviewed
the same, (ii) have been provided with such
additional information with respect to Parent and its
investments as Vendor, or its agents or attorneys,
have requested, and (iii) have had the opportunity to
discuss such information with members of the
management of Parent and any questions that Vendor
have with respect thereto have been answered to the
full satisfaction of Vendor.
4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
4.1. Survival of warranties by the Vendor. The representations and
warranties made by the Vendor and contained in this Agreement, or
contained in any document or certificate given in order to carry out
the transactions contemplated hereby, will survive the closing of the
purchase of the Purchased Assets provided for herein and
notwithstanding such closing or any investigation made by or on behalf
of the Purchaser or any other person or any knowledge of the Purchaser
or any other person, shall continue in full force and effect for the
benefit of the Purchaser, provided that no Warranty Claim ("Warranty
Claim" means a claim made by the Purchaser based on or with respect to
the inaccuracy or non-performance or non-fulfillment or breach of any
representation or warranty made by the other party contained in this
Agreement or contained in any document or certificate given in order to
carry out the transactions contemplated herein.) may be made or brought
by the Purchaser after the date which two years following the Closing
Date other than the representations and warranties in Sections 3.1.7,
3.1.9, 3.1.15, and 3.1.17 which shall survive the Closing indefinitely.
4.2. Survival of warranties by Purchaser. The representations and warranties
made by the Purchaser and contained in this Agreement or contained in
any document or certificate given in order to carry out the
transactions contemplated hereby will survive the closing of the
purchase and sale of the Purchased Assets provided for herein and,
notwithstanding such closing or any investigation made by or on behalf
of the Vendor or any other person or any knowledge of the Vendor or any
other person, shall continue in full force and effect for the benefit
of the Vendor; provided that no Warranty Claim may be made or brought
by the Vendor after the date which is two years following the Closing
Date.
5. COVENANTS
5.1. Covenants by the Vendor. The Vendor covenants to the Purchaser that it
will do or cause to be done the following:
5.1.1. Investigation of Business and Examination of Documents. During
the period from and including the date of this Agreement to and
including the Closing Date (the "Interim Period"), the Vendor
will provide access to and will permit the Purchaser, through
its representatives, to make such investigation of, the
operations, properties, assets and records of the Business and
of its financial and legal condition as the Purchaser deems
necessary or advisable to familiarize itself with such
operations, properties, assets, records and other matters.
Without limiting the generality of the foregoing, during the
Interim Period the Vendor will permit the Purchaser and its
representatives to have access to the premises used in
connection with the Business and will produce for inspection
and provide copies to the Purchaser of any and all documents in
the possession of the Vendor relating to the Business. The
Purchaser will conduct any such investigation in a manner which
shall not unreasonably disrupt the personnel and operations of
the Vendor.
5.1.2. Exclusivity. During the Interim Period, the Vendor agrees that
it will not enter into discussions with any third parties with
regards to a sale of assets, merger, acquisition, partnership
or joint venture without prior written consent of the
Purchaser.
5.1.3. Transfer of Purchased Assets. At or before the Closing Date,
the Vendor will cause all necessary steps and corporate
proceedings to be taken in order to permit the Purchased Assets
to be duly and regularly transferred to the Purchaser.
5.1.4. Forms of Conveyance. On the Closing Date, the Vendor will
deliver to the Purchaser good and marketable title to and
exclusive possession of the Purchased Assets, free and clear of
any and all mortgages, charges, pledges, security interests,
liens, encumbrances, actions, claims and equities of any nature
whatsoever or howsoever arising and any rights or privileges
capable of becoming any of the foregoing. On the Closing Date,
the Vendor will execute and deliver to the Purchaser one or
more forms of general conveyance, or bills of sale, deeds,
transfers and other documents reasonably requested by the
Purchaser in respect of the assignment, conveyance, transfer
and delivery of the Purchased Assets to the Purchaser in form
which is remittable and acceptable to the Purchaser.
5.1.5. Change of Name. Within forty-five days after the Closing Date,
the Vendor will deliver to the Purchaser evidence of an
amendment to its amended and restated certificate of
incorporation to change its name to another name not using the
words "PureCarbon" or similar name or any other trade name
transferred to Purchasers as contemplated hereby.
5.1.6. Non-Competition.
5.1.6.1. The Vendor agrees that during the three-year period
from and after the Closing Date (the "non-competition
period"), the Vendor will not, directly or
indirectly, participate in or permit its name to be
used by any person or entity involved in the same or
similar business as the Business. The term
"participate" includes any direct or indirect
interest, whether as a partner, sole proprietor,
trustee, beneficiary, agent, representative,
independent contractor, consultant, advisor, provider
of personal services, creditor, owner (other than by
ownership of less than five percent of the stock of a
publicly-held corporation whose stock is traded on a
national securities exchange or in the
over-the-counter market). The Vendor agrees that this
covenant is reasonable with respect to its duration,
geographical area and scope. If, at the time of
enforcement of the foregoing, a court holds that the
restrictions stated herein are unreasonable under
circumstances then existing, the parties hereto agree
that the maximum period, scope, or geographical area
legally permissible under such circumstances will be
substituted for the period, scope or area stated
herein.
5.1.6.2. The Vendor agrees that during the three-year period
from and after the Closing Date, without the prior
written approval of Purchaser, the Vendor will not
solicit (i) any person who was an employee of the
Vendor and who becomes an employee of Purchaser or
Parent or its subsidiaries, (ii) any customer of
Purchaser or Parent or its subsidiaries, or (iii) any
supplier to Purchaser or Parent or its subsidiaries,
in any such case, to terminate his or her employment
or relationship with Purchaser or Parent or its
subsidiaries. The Vendor agrees that this covenant is
reasonable with respect to its duration and scope.
If, at the time of enforcement of the foregoing, a
court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the
parties hereto agree that the maximum period or scope
legally permissible under such circumstances will be
substituted for the period or scope stated herein.
5.1.7. Employees. Before the Closing Date, the Vendor shall afford the
Purchaser access to the Vendor's employees so that the
Purchaser may, but shall not be obligated to, make offers of
employment to such employees. All employees of the Vendor who
accept offers of employment with the Purchaser shall become
employees of the Purchaser ("Purchaser Employees") effective as
of the Closing Date. The Vendor shall be responsible for
notifying employees of any termination of their employment with
the Vendor. Vendor shall be solely responsible for all
severance and other amounts payable to its employees arising
from their employment by the Vendor, including, without
limitation, any accrued, unused vacation time or other
applicable paid time off and all benefits due to employees of
the Vendor pursuant to any employment plan maintained by the
Vendor. The Purchaser shall be responsible for all compensation
payable to Purchaser Employees arising from their employment by
the Purchaser. The Vendor shall be liable to the extent the
Worker Adjustment and Restraining Notification Act of 1988, as
amended (or any similar law) is applicable with respect to
termination of any employee who is not offered employment by
the Purchaser pursuant to this Section 5.1.7.
5.1.8. Conduct of Business. The Vendor will operate only in the usual,
regular and ordinary manner and will preserve its relationships
with customers, suppliers, employees and others having business
dealings with it. The Vendor will take no action to disrupt its
present organization, employment and business relationships.
Without the prior written consent of the Purchaser, the Vendor
(i) will make no capital expenditures or capital commitments in
excess of $5,000 in the aggregate, (ii) will not dispose of or
encumber any properties, except for the sale of inventory in
the ordinary course, (iii) will not modify, compromise or
change any right, concession, license, lease, contract,
commitment or agreement existing on the date of the execution
of this Agreement or arising hereafter in any manner adverse to
the interest of the Purchaser or enter in any right,
concession, license, lease, contract commitment or agreement
after the date hereof without the prior written consent of the
Purchaser, (iv) will not incur any indebtedness for money
borrowed, refinance any existing outstanding indebtedness, or
give or obtain payment terms other than pursuant to existing
practice and then only in the ordinary course of business, (v)
will maintain its personal properties, whether owned or leased,
in at least the same state of repair, order and condition as
exist on the date of this Agreement, reasonable wear and tear
excepted, and (vi) will not write any checks (other than legal
fees and expenses incurred in connection with the execution of
this Agreement and the documents contemplated hereby) in excess
of $5,000 in the aggregate without prior notice thereof to Mr.
Xxxxxxx Xxxxxxxxx or other person designated by Purchaser.
5.1.9. Stockholder and Noteholder Approvals. The Vendor will use its
best efforts to obtain the consent of its stockholders and
holders of its outstanding notes to the consummation of the
transactions contemplated hereby.
5.2. Covenants by the Purchaser. The Purchaser covenants to the Vendor that
it will do or cause to be done the following:
5.2.1. Confidentiality. Prior to and including the Closing Date and,
if the transaction contemplated hereby is not completed, at all
times after the Closing Date, the Purchaser will keep
confidential all information obtained by it relating to the
Business, except such information which:
5.2.1.1. prior to the date of this Agreement was already in
the possession of the Purchaser,
5.2.1.2. is generally available to the public, other than as a
result of a disclosure by the Purchaser, or
5.2.1.3. is made available to the Purchaser on a
non-confidential basis from a source other than the
Vendor or its representatives.
The Purchaser further agrees that such information will be
disclosed only to those of its employees and representatives of
its advisors who reasonably need to know such information for
the purposes of evaluating and implementing the transaction
contemplated hereby. Notwithstanding the foregoing provisions
of this paragraph, the obligation to maintain the
confidentiality of such information will not apply to the
extent that disclosure of such information is required in
connection with governmental or other applicable filings
relating to the transactions hereunder, provided that, in such
case, unless the Vendor otherwise agrees, the Purchaser will,
if possible, request confidentiality in respect of such
governmental or other filings. If the transactions contemplated
hereby are not consummated for any reason, the Purchaser will
promptly destroy or return forthwith, without retaining any
copies whatsoever, all information and documents obtained from
the Vendor.
6. CONDITIONS
6.1. Conditions to the obligations of the Purchaser. Notwithstanding
anything herein contained, the obligation of the Purchaser to complete
the transactions provided for herein will be subject to the fulfillment
of the following conditions at or prior to the Closing Date (any or all
of which may be waived by the Purchaser).
6.1.1. Accuracy of Representations and Warranties and Performance of
Covenants. The representations and warranties of the Vendor
contained in this Agreement or in any documents delivered in
order to carry out the transactions contemplated hereby shall
be true and accurate on the date and at the Closing Date with
the same force and effect as though such representations and
warranties had been made as of the Closing Date (regardless of
the date as of which the information in this Agreement or in
any Schedule or other document made pursuant hereto is given).
In addition, the Vendor shall have complied with all covenants
and agreements herein agreed to be performed or caused to be
performed by it at or prior to the Closing Date. In addition,
the Vendor shall have delivered to the Purchaser a certificate
executed by an authorized officer of the Vendor confirming that
the facts with respect to each of such representations and
warranties by the Vendor are as set out herein at the Closing
Date and that the Vendor has performed all covenants required
to be performed by it hereunder.
6.1.2. Material Adverse Changes. During the Interim Period there will
have been no change in the condition of the Purchased Assets,
howsoever arising, except changes which have occurred in the
ordinary course of the Business and which, individually or in
the aggregate, have not affected and may not affect the
condition of the Purchased Assets in any material adverse
respect. Without limiting the generality of the foregoing,
during the Interim Period no damage to or destruction of any
material part of the Purchased Assets shall have occurred,
whether or not covered by insurance.
6.1.3. No Restraining Proceedings. No order, decision or ruling of any
court, tribunal or regulatory authority having jurisdiction
shall have been made, and no action or proceeding shall be
pending or threatened which, in the opinion of counsel to the
Purchaser, could reasonably be expected to result in an order,
decision or ruling, to disallow, enjoin, prohibit or impose any
limitations or conditions on the purchase and sale of the
Purchased Assets contemplated hereby or the right of the
Purchaser to own the Purchased Assets.
6.1.4. Consents. All consents required to be obtained in order to
carry out the transactions contemplated hereby in compliance
with all laws and agreements binding on the parties hereto
shall have been obtained.
6.1.5. Conveyance Documents. At the Closing, the Vendor shall have
delivered to the Purchaser a duly executed Assignment and
Waiver of Intellectual Property, Xxxx of Sale and Assignment
and Assumption Agreement in the forms attached hereto as
Exhibit A, B and C, respectively.
6.1.6. Secretary's Certificate. At the Closing, the Vendor shall have
delivered to the Purchaser a certificate of the secretary of
the Vendor pursuant to which such secretary shall certify the
amended and restated certificate of incorporation and any
amendments thereto, if any, of the Vendor, attached thereto,
and certified by the Secretary of State of the State of
Delaware as of recent date, the by-laws of the Vendor and
resolutions of the board of directors and shareholders of the
Vendor authorizing the execution, delivery and performance by
the Vendor of this Agreement and the transactions contemplated
hereby.
6.1.7. Release of Lien. The Purchaser shall have received evidence of
the release by Xxxxxxxxxxxxxx.xxx of its lien on the Purchased
Assets.
6.1.8. Opinion of Counsel. At the Closing, the Vendor shall have
delivered an opinion of counsel to the Vendor substantially in
the form attached hereto as Exhibit D.
6.1.9. Schedules. The Purchaser shall have conducted its diligence
review of all agreements, contracts and commitments reflected
on the Schedules attached hereto and all other matters
reflected thereon and shall be satisfied in its sole discretion
with the same.
6.1.10. Further Assurances. At the Closing, and from time to time
thereafter, the Vendor shall furnish the Purchaser with such
further written documentation in order to enable the Purchaser
to establish, prove or perfect the Purchaser's ownership of any
of the Purchased Assets.
6.2. Conditions to the obligations of the Vendor. Notwithstanding anything
herein contained, the obligations of the Vendor to complete the
transactions provided for herein will be subject to the fulfillment of
the following conditions at or prior to the Closing Date (any or all of
which may be waived by the Vendor).
6.2.1. Accuracy of Representations and Warranties and Performance of
Covenants. The representations and warranties of the Purchaser
contained in this Agreement or in any documents delivered in
order to carry out the transactions contemplated hereby will be
true and accurate in all material respects on the date and at
the Closing Date with the same force and effect as though such
representations and warranties had been made as of the Closing
Date (regardless of the date as of which the information in
this Agreement or any such Schedule or other document made
pursuant hereto is given). In addition, the Purchaser shall
have complied with all covenants and agreements herein agreed
to be performed or caused to be performed by it at or prior to
the Closing Date. In addition, the Purchaser shall have
delivered to the Vendor a certificate executed by an authorized
officer of the Purchaser confirming that the facts with respect
to each of the representations and warranties of the Purchaser
are as set out herein at the Closing Date and that the
Purchaser has performed each of the covenants required to be
performed by it hereunder.
6.2.2. No Restraining Proceedings. No order, decision or ruling of any
court, tribunal or regulatory authority having jurisdiction
shall have been made, and no action or proceeding shall be
pending or threatened which, in the opinion of the Vendor,
could reasonably be expected to result in an order, decision or
ruling, to disallow, enjoin or prohibit the purchase and sale
of the Purchased Assets contemplated hereby.
6.2.3. Consents. All consents required to be obtained in order to
carry out the transactions contemplated hereby in compliance
with all laws and agreements binding upon the parties hereto
shall have been obtained, including the consent of the Vendor's
shareholders and noteholders.
7. CLOSING
7.1. Closing arrangements. Subject to the terms and conditions, the Closing
shall occur on the Closing Date at the offices of Xxxxxxx Xxxxx, P.C.,
EAB Plaza, Uniondale, New York 11556, or at such other place or places
as may be mutually agreed on by the Vendor and the Purchaser.
7.2. Documents to be delivered. At or before the Closing Date, the Vendor
shall execute, or cause to be executed, and shall deliver, or cause to
be delivered, to the Purchaser all documents, instruments and things
which are to be delivered by the Vendor pursuant to the provisions of
this Agreement, and the Purchaser shall execute, or cause to be
executed, and shall deliver, or cause to be delivered, to the Vendor
all cheques or bank drafts and all documents, instruments and things
which the Purchaser is to deliver or to cause to be delivered pursuant
to the provisions of this Agreement.
8. INDEMNIFICATION
8.1. Indemnity by the Vendor.
8.1.1. The Vendor hereby agrees to indemnify and save the Purchaser,
its stockholders, directors, officers and employees (each, a
"Purchaser Indemnified Party") harmless from and against any
claims, demands, actions, causes of action, damage, loss,
deficiency, cost, liability and expense, including, without
limitation, reasonable attorneys fees, (collectively,
"Losses"), which may be made or brought against a Purchaser
Indemnified Party or which a Purchaser Indemnified Party may
suffer or incur as a result of, in respect of or arising out
of:
8.1.1.1. any non-performance or non-fulfillment of any
covenant or agreement on the part of the Vendor
contained in this Agreement or contained in any
document or certificate given in order to carry out
the transactions contemplated hereby;
8.1.1.2. any misrepresentation, inaccuracy, incorrectness or
breach of any representation or warranty made by the
Vendor contained in this Agreement or contained in
any document or certificate given in order to carry
out the transactions contemplated hereby;
8.1.1.3. the non-compliance with any federal, state, local,
municipal, foreign, international or other
administrative order, constitution, law, ordinance,
statute, or treaty applicable to Vendor in the
carrying out of the transaction contemplated herein,
including, without limitation, compliance with any
applicable bulk sales law;
8.1.1.4. any claim for a debt, obligation or liability which
is not an Assumed Liability;
8.1.1.5. except with respect to Assumed Liabilities, any suit,
action, proceeding, claim, investigation pending or
threatened against or affecting the Purchased Assets,
regardless of whether such is disclosed in a Schedule
hereto, that arises from the conduct of the Business
prior to the Closing Date; and
8.1.1.6. any other liabilities or obligations of the Vendor of
any kind whatsoever, whether now existing or
hereinafter arising, other than the Assumed
Liabilities.
8.2. Indemnity by the Purchaser.
8.2.1. The Purchaser hereby agrees to indemnify and save the Vendor,
its stockholders, directors, officers, and employees
(collectively, "Vendor Indemnified Party") harmless from and
against any Losses which may be made or brought against a
Vendor Indemnified Party or which a Vendor Indemnified Party
may suffer or incur as a result of, in respect of or arising
out of:
8.2.1.1. any non-performance or non-fulfillment of any
covenant or agreement on the part of the Purchaser
contained in this Agreement;
8.2.1.2. any misrepresentation, inaccuracy, incorrectness or
breach of any representation or warranty made by the
Purchaser contained in this Agreement;
8.2.1.3. any non-compliance with any federal, state, local,
municipal, foreign, international or other
administrative order, constitution, law, ordinance,
statute, or treaty applicable to Purchaser in the
carrying out of the transaction contemplated herein;
and
8.2.1.4. any Assumed Liability.
8.3. Indemnification Procedures.
8.3.1. Upon obtaining knowledge of any claim or demand which has given
rise to, or is expected to give rise to, a claim for
indemnification hereunder, the party seeking indemnification
("Indemnitee") shall give written notice ("Notice of Claim") of
such claim or demand to the indemnifying party ("Indemnitor").
Indemnitee shall furnish to the Indemnitor in reasonable detail
such information as Indemnitee may have with respect to such
indemnification claim (including copies of any summons,
complaint or other pleading which may have been served on it
and any written claim, demand, invoice, billing or other
document evidencing or asserting the same). Subject to the
limitations set forth in Section 4.3 hereof, no failure or
delay by Indemnitee in the performance of the foregoing shall
reduce or otherwise affect the obligation of Indemnitor to
indemnify and hold Indemnitee harmless, except to the extent
that such failure or delay shall have actually adversely
affected Indemnitor's ability to defend against, settle or
satisfy any Liability for which Indemnitee is entitled to
indemnification hereunder.
8.3.2. If the claim or demand set forth in the Notice of Claim given
by Indemnitee pursuant to Section 8.3.1 hereof is a claim or
demand asserted by a third party, Indemnitor shall have 15 days
after the date on which Notice of Claim is given to notify
Indemnitee in writing or its election to defend such third
party claim or demand on behalf of the Indemnitee. If
Indemnitor elects to defend such third party claim or demand at
its' own expense, Indemnitee shall make available to Indemnitor
and its agents and representatives all records and other
materials which are reasonably required in the defense of such
third party claim or demand and shall otherwise cooperate with,
and assist Indemnitor in the defense of, such third party claim
or demand, and so long as Indemnitor is defending such third
party claim in good faith, Indemnitee shall not pay, settle or
compromise such third party claim or demand. If Indemnitor
elects to defend such third party claim or demand, Indemnitee
shall have the right to participate in the defense of such
third party claim or demand, at Indemnitee's own expense. In
the event, however, that Indemnitee reasonably determines that
representation by counsel to Indemnitor of both Indemnitor and
Indemnitee may present such counsel with a conflict of
interest, then such Indemnitee may employ separate counsel to
represent or defend it in any such action or proceeding and
Indemnitor will pay the fees and disbursements of such counsel.
If Indemnitor does not elect to defend such third party claim
or demand or does not defend such third party claim or demand
in good faith, Indemnitee shall have the right, in addition to
any other right or remedy it may have hereunder, at
Indemnitor's expense, to defend such third party claim or
demand; provided, however, that (a) Indemnitee shall not have
any obligation to participate in the defense of, or defend, any
such third party claim or demand; and (b) Indemnitee's defense
of or its participation in the defense of any such third party
claim or demand shall not in any way diminish or lessen the
obligations of Indemnitor under the agreements of
indemnification set forth in this Article 8.
8.3.3. Except for third party claims being defended in good faith,
Indemnitor shall satisfy its obligations hereunder in respect
of a valid claim for indemnification hereunder in cash within
30 days after the date on which Notice of Claim is given.
8.4. Limitation on Indemnification.
8.4.1. The Vendor shall not be liable for any Losses suffered or
incurred by the Purchaser until the aggregate of all such
Losses exceeds $10,000, and then Vendor shall be liable only
for the Losses in excess thereof.
9. GENERAL PROVISIONS
9.1. Further assurances. Vendor hereby covenants and agrees that at any time
and from time to time after the Closing Date it will, on the request of
the Purchaser, do, execute, acknowledge and deliver or cause to be
done, executed, acknowledged and delivered all such further acts,
deeds, assignments, transfers, conveyances and assurances as may be
required to vest title in the Purchased Assets to the Purchaser.
9.2. Notices. Any demand, notice or other communications to be given in
connection with this Agreement shall be given in writing and may be
given by personal delivery or overnight delivery service or by
registered mail, return receipt requested.
Notices to the Purchaser shall be addressed to:
Workstream, Inc.
000 Xxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attention: Mr. Xxxxxxx Xxxxxxxxx
CEO and Chairman
or at such other address and to the attention of such other person
as the Purchaser may designate by written notice to the Vendor.
Notices to the Vendor shall be addressed to:
PureCarbon Inc.
0000 Xx Xxxxxx Xxxx
Xxxxx X-00
Xxx Xxxxx, XX 00000
Attention: Xxxx Xxxxx, President
or at such other address and to the attention of such other person
as the Vendor may designate by written notice to the Purchaser.
Any communication given by personal delivery shall be conclusively
deemed to have been given, if by hand, on the day of actual delivery
thereof, if given by registered mail, on the fifth (5th) business day
following the deposit thereof in the mail, and if by overnight delivery
service, the next day.
9.3. Counterparts. This Agreement may be executed in several counterparts,
each of which so executed shall be deemed to be an original, and such
counterparts together shall constitute one and the same instrument.
9.4. Expenses of parties. Each of the parties hereto shall bear all expenses
incurred by it in connection with this Agreement including, without
limitation, the charges of their respective counsel, accountants,
financial advisors and finders.
9.5. Brokerage and finder's fees. The Vendor agrees to indemnify the
Purchaser and hold it harmless in respect of any claim for brokerage or
other commissions relative to this Agreement or the transactions
contemplated hereby which is caused by actions of the Vendor. The
Purchaser will indemnify the Vendor and hold it harmless in respect of
any claim for brokerage or other commissions relative to this Agreement
or to the transactions contemplated hereby which is caused by actions
of the Purchaser.
9.6. Announcements. No press release or other announcement with respect to
this Agreement will be made by Vendor without the prior approval of the
Purchaser. Purchaser shall be permitted to make such announcements
including such announcements required in order to comply with laws
pertaining to timely disclosure.
9.7. Assignment. The rights of the Vendor hereunder shall not be assignable
without the written consent of the Purchaser.
9.8. Successors and Assigns. This Agreement shall be binding on and inure to
the benefit of the parties hereto and their respective successors and
permitted assigns. Nothing herein, express or implied, is intended to
confer on any person, other than the parties hereto, the shareholders
of the Vendor and their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
9.9. Entire Agreement. This Agreement and the Schedules referred to herein
constitute the entire agreement between the parties hereto and
supersede all prior agreements, representations, warranties,
statements, promises, information, arrangements and understandings,
whether oral or written, express or implied, with respect to the
subject-matter hereof. None of the parties hereto shall be bound or
charged with any oral or written agreements, representations,
warranties, statements, promises, information, arrangements or
understandings not specifically set forth in this Agreement or in the
Schedules, documents and instruments to be delivered on the Closing
Date pursuant to this Agreement. The parties hereto further acknowledge
and agree that, in entering into this Agreement and in delivering the
Schedules, documents and instruments to be delivered on or before the
Closing Date, they have not in any way relied, and will not in any way
rely, on any oral or written agreements, representations, warranties,
statements, promises, information, arrangements or understandings,
express or implied, not specifically set forth in this Agreement or in
such Schedules, documents or instruments.
9.10. Waiver. Any party hereto which is entitled to the benefits of this
Agreement may, and has the right to, waive any term or condition at any
time on or prior to the Closing Time; provided, however, that such
waiver shall be evidenced by written instrument duly executed on behalf
of such party.
9.11. Amendments. No modification or amendment to this Agreement may be made
unless agreed to by the parties in writing.
10. TERMINATION
10.1. Termination of Events. This Agreement may be terminated at any time
prior to the Closing as follows:
(a) by mutual consent of the Vendor and Purchaser;
(b) by the Vendor if (i) Purchaser is in material breach of this
Agreement and (ii) the Vendor is not in material breach of this
Agreement;
(c) by Purchaser if (i) the Vendor is in material breach of this
Agreement and (ii) is not in material breach of this Agreement;
(d) by the Vendor or by Purchaser if, at or before the Closing Date,
any condition set forth herein for the benefit of such terminating
party shall not have been timely met and cannot be met on or
before July 31, 2002 and has not been waived; provided, that the
terminating party is not in material breach of this Agreement; or
(e) by Purchaser or the Vendor, if the Closing shall not have occurred
on or before July 31, 2002; provided, that the terminating party
is not in material breach of this Agreement.
Except as otherwise provided in this Section 10.2, each party's right
of termination hereunder is in addition to any of the rights it may
have hereunder or otherwise.
10.2. Effect of Termination. In the event of the termination and abandonment
of this Agreement pursuant to Section 10.1 hereof, this Agreement shall
forthwith become void and have no further effect, except that the
provisions of Sections 9.4 and 9.5 shall survive such termination, and
no such termination of this Agreement shall release any party from
liability for any breach hereof occurring prior to the date of
termination.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement under
seal as of the day and year first above written.
WORKSTREAM USA INC.
By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
PURECARBON INC.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: President
Schedule 2.1
Purchased Assets
All of the right, title and interest as of the Closing Date of the
Vendor in and to all of the assets, properties and rights owned by the Vendor,
or used or usable by the Vendor in the operation of its business, every type and
description, real, personal and mixed, tangible and intangible, wherever located
and whether or not reflected on the books and records of the Vendor; provided,
however, the Purchased Assets shall exclude leases of real property and shall
exclude cash. The Purchased Assets shall include, without limitation, all of the
right, title and interest of the Vendor in or to the following:
(a) Inventory. All inventories or raw materials, work-in-process,
finished goods, demonstration equipment, office and other
supplies, parts, packaging materials and other accessories
related thereto which are held at, or are in transit from or
to, the locations at which its business is conducted, or
located at suppliers' premises or customers' premises on
consignment, including any of the foregoing purchased subject
to any conditional sales or title retention agreement in favor
of any other person or entity, together with all rights of the
Vendor against suppliers of such inventories (the
"Inventory");
(b) Accounts Receivable. All accounts receivable and all notes,
bonds and other evidences of indebtedness of and rights to
receive payments arising out of sale occurring in the conduct
of the business prior to the Closing Date and which relate to
services provided or goods sold and delivered prior to the
Closing Date (the "Accounts Receivable"). A listing of the
Company's accounts receivable through June 20, 2002 is
identified on Annex I.1(b) annexed hereto;
(c) Personal Property. All furniture, fixtures, equipment,
machinery and other tangible personal property other than
Inventory, used or held for use in the conduct of the business
at the locations at which business is conducted or at
supplier's premises or customers' premises on consignment, or
otherwise used or held for use by the Vendor in the conduct of
the business, including any of the foregoing purchased subject
to any conditional sales or title retention agreement in favor
of any other Person and including, without limitation, the
tangible personal property identified on the Annex 1.1(c)
hereto;
(d) Personal Property Leases. The leases or subleases of tangible
personal property, if any, set forth on Annex 1.1(d) hereto;
(e) Business Contracts. All contracts and other agreements to
which the Vendor is a party and which are utilized in the
conduct of the Business which the Purchaser elects to assume
in accordance with Schedule 2.2, including, without
limitation, contracts and other agreements relating to
suppliers, sales representatives, distributors, consultants,
customers, purchase orders, marketing and purchasing
arrangements;
(f) Prepaid Expenses. All prepaid expenses relating to the
Business, including, without limitation, unbilled charges and
deposits relating to the operation of the Business;
(g) Intangible Property. All intellectual property rights used or
held for use in the conduct of the Business (including the
Vendor's goodwill therein), all rights, privileges, claims,
causes of action and options relating or pertaining to the
Business or its assets or properties, including, but not
limited to, business and marketing plans, computer software
(including source codes) and related documentation and
licenses, copyrights and applications therefor, trademarks,
trade names, service marks and all names and slogans used by
the Vendor in connection with the Business, including, without
limitation, the name "JobPlanet";
(h) Licenses. All licenses, permits, franchises, approvals and
authorizations (including applications therefor) utilized in
the conduct of the Business to the extent transferrable;
(i) Balance Sheet Assets. Those assets, properties and rights of
the Vendor reflected on the financial statements identified in
Section 3.1.16 of Vendor or otherwise referred to in this
Agreement or any Schedule hereto, subject to changes in the
ordinary course of business through the Closing Date; and
(j) Books and Records. All books and records used or held for use
in the conduct of the Business or otherwise relating to the
Vendor or its assets or properties (including all tax records
related thereto), other than the minute books, stock transfer
books and corporate seal of the Vendor.
