STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement"), dated as of November 1,
2005 (the "Effective Date"), by and between Charys Holding Company, Inc., a
Delaware corporation located at 0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000, Xxxxxxx,
XX 00000 ("Purchaser") and New Viasys Holdings, LLC, a Delaware limited
liability company located at c/o Preferred Employers Holdings, 00000 Xxxxxxxx
Xxxxxxxxx, Xxxxx, XX 00000 ("Seller") which is the owner of Viasys Network
Services, Inc. a Florida corporation whose principal executive office is located
at 00 Xxxx Xxxx Xxxxx, Xxxxxxxx, XX 00000 ("Viasys 2") and Viasys Services,
Inc., a Florida corporation whose principal executive office is located at 00
Xxxx Xxxx Xxxxx, Xxxxxxxx Xxxxxxx 00000 ("Viasys 3"). Viasys 2 and Viasys 3 are
hereinafter referred to as the Company.
ARTICLE 1
PURCHASE OF STOCK
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1.1 Purchase and Sale. Subject to the terms and conditions of this
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Agreement, Seller agrees to sell, and Purchaser agrees to purchase from Seller,
all of the issued and outstanding shares of capital stock of the Company
(collectively, the "Shares"). The number of Shares which are the subject of
this Agreement and the stock certificates evidencing the Shares are described in
Schedule 1.1 hereto.
1.2 Price. In reliance on the representations and warranties of Seller
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contained herein, and in consideration of the sale, conveyance, transfer and
delivery of the Shares and the consummation of the other agreements and
transactions referred to in this Agreement, Purchaser agrees to pay to Seller
the aggregate consideration calculated in accordance with the provisions of this
Article 1.
1.3 Base Purchase Price. The Base Purchase Price shall be the sum of
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(a) the unaudited book value of the net assets of the Company as of August 31,
2005 as reflected on Schedule 1.3 (the "Unaudited Net Assets") which is
$1,866,284.00 plus (b) four million dollars ($4,000,000). The Unaudited Net
Assets excludes (i) certain of the net assets associated with the Company's
contract with the Commonwealth of Virginia contract number C00016042T01 (the "VA
Job") described on Schedule 1.3(a), and (ii) the debt owed to Seller by the
Company in the amount of $6,399,755.00.
1.3.1 The Base Purchase Price shall be paid at Closing as follows:
Cash in the amount of $2,366,284.00 which represents the value of the Unaudited
Net Assets as shown on Schedule 1.3, plus five hundred thousand dollars
($500,000); a subordinated secured promissory note in the original principal
amount of three million five hundred thousand dollars ($3,500,000), in the form
set forth in Schedule 1.3.1 (the "Note"). The Note shall bear interest at the
rate of eight percent (8%) per annum and shall be payable in installments as
follows: the principal amount of one million dollars ($1,000,000), plus accrued
interest, shall be due six (6) months after the Closing Date; the principal
amount of five hundred thousand dollars ($500,000), plus accrued interest, shall
be due nine (9) months after the Closing Date; the principal amount of five
hundred thousand dollars ($500,000), plus accrued interest, shall be due twelve
(12) months after the Closing Date; and the principal amount of one million five
hundred thousand dollars ($1,500,000), plus accrued interest, shall be due
fifteen (15) months after the Closing Date. The
Note shall be secured by the collateral described in Schedule 1.3.1(a) pursuant
to the Security Agreement, a form of which is set forth as Schedule 1.3.1(b).
1.3.2 Escrow. Shares of common stock of Purchaser having a Market
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Price (as defined in Section 12.3) of five hundred thousand dollars ($500,000)
on the Closing Date (the "Charys Shares") shall be placed in escrow pursuant to
the Escrow Agreement set forth in Schedule 1.3.2 which among other matters
customary to escrow agreements shall provide for release of the Charys Shares
upon payment of the final installment of principal and interest on the Note. In
the event that the Charys Shares are released to Seller, Purchaser agrees to
promptly register the Charys Shares under the Securities Act of 1933, as
amended, for resale by Seller.
1.4 First Adjustment to Base Purchase Price. As soon as practicable
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but in no event later than ninety (90) days after the Closing Date (the "Post
Closing Determination Date"), Seller shall deliver to Purchaser audited balance
sheets of the Company as of the close of business on October 31, 2005, which
shall be certified to by Deloitte & Touche LLP, or any other accounting firm
selected by Seller and reasonably acceptable to Purchaser, in accordance with
GAAP (the "Post Closing Audit"). The Post Closing Audit shall be final and
binding on the parties hereto and the net assets reflected on the Post Closing
Audit (total assets reported on the balance sheet less total liabilities
reported on the balance sheet) shall be the Audited Net Assets. Purchaser shall
afford to Seller and its accountants and other authorized representatives
reasonable access during business hours to the Company's facilities, properties,
books and records in order to conduct the Post Closing Audit.
1.4.1 Omitted.
1.4.2 The "Settlement Amount" for the First Adjustment to Base
Purchase Price shall be equal to the difference between the value of the
Unaudited Net Assets and the Audited Net Assets, excluding (i) certain of the
net assets associated with the VA Job and (ii) the debt owed to Seller by the
Company in the amount of $6,572,103.00.
1.4.3 In the event the Audited Net Assets are greater than the
Unaudited Net Assets, the cash portion of the Base Purchase Price shall be
increased accordingly (the "Increased Cash Portion of the Base Purchase Price")
and Purchaser shall pay to Seller the Increased Cash Portion of the Base
Purchase Price in cash within ten (10) business days of the Post Closing
Determination Date. In the event the Audited Net Assets are less than the
Unaudited Net Assets, the Base Purchase Price shall be reduced accordingly (the
"Reduced Cash Portion of the Base Purchase Price") and Seller shall pay to
Purchaser the amount of the Reduced Cash Portion of the Base Purchase Price in
cash within ten (10) business days of the Post Closing Determination Date or
Seller shall have the right to set off the Reduced Cash Portion of the Base
Purchase Price against amounts due on the Note in reverse order of maturity.
1.5 Second Adjustment to Purchase Price. Seller shall have the right
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to receive an additional payment (the "Earn Out") based on the formula set forth
in Schedule 1.5.
1.6 Additional Consideration. The Company is party to a contract with
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the Commonwealth of Virginia Department of Transportation for the VA Job. At
Closing, Seller and Purchaser shall enter into an agreement, in the form
attached hereto as Exhibit 7.17 (the
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"Management Agreement") which will provide that the first $6,572,103 of Proceeds
from the VA Job, as defined in the Management Agreement to be paid to Seller in
satisfaction of its note payable to Seller from the Company reflected in the
Financial Statements (as defined in Section 2.9), and which will further provide
Seller as additional purchase price all future payments from the VA Job, with
the balance of the Proceeds from the VA Job to be applied as set forth in the
Management Agreement.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller hereby represents and warrants to Purchaser as of the date hereof
and as of the Closing Date:
2.1 Organization, etc. Seller is a limited liability company duly
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organized, validly existing and in good standing under the laws of its
jurisdiction of organization with full power and authority to carry on its
business as it is now being conducted, and to own, operate and lease its
properties and assets. The Company is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation with full corporate power and authority to carry on its business
as it is now being conducted, and to own, operate and lease its properties and
assets. The Company is duly qualified or licensed to do business in good
standing in every jurisdiction in which the conduct of its business, the
ownership or lease of its properties, or the transactions contemplated by this
Agreement, require it to be so qualified or licensed and the failure to be so
qualified or licensed would have a Material Adverse Effect (as defined in
Section 12.3). Such state jurisdictions are set forth in Schedule 2.1(a) hereto.
True, complete and correct copies of the Company's charter and bylaws as
presently in effect are set forth in Schedule 2.1(b) hereto.
2.2 Subsidiaries. The subsidiaries of Seller and the Company are set
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forth on Schedule 2.2; other than as set forth on Schedule 2.2, Seller and the
Company have no subsidiaries.
2.3 Capital Stock. The stock record books of the Company have been
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made available to Purchaser for inspection prior to the date hereof and are
complete and correct in all material respects. The authorized, issued and
outstanding shares of capital stock of the Company is as set forth in Schedule
2.3 hereto.
2.4 Corporate Record Books. The corporate minute books of the Company
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have been made available to Purchaser, are complete and correct in all material
respects and contain all of the written proceedings of the shareholders and
directors of the Company.
2.5 Title to Stock. All of the outstanding shares of the capital stock
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of the Company are owned by Seller, are duly authorized, validly issued and
fully paid and non-assessable, and are free of all Liens (as defined in Section
12.3) except as otherwise disclosed on Schedule 2.5. Upon payment of the Base
Purchase Price to Seller at Closing, Seller will convey good and marketable
title to the Shares free and clear of all Liens whatsoever, except as otherwise
disclosed on Schedule 2.5.
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2.6 Options and Rights. There are no outstanding subscriptions,
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options, warrants, rights, securities, contracts, commitments, understandings,
or arrangements by which the Company is bound to issue any additional shares of
capital stock or rights to purchase shares of its capital stock, and there are
no existing agreements between Seller and the Company or between Seller or
either of the Company, on the one hand, and any other Person (as defined in
Section 12.3), on the other hand, regarding the Shares.
2.7 Authorization, etc. Seller has full power and authority to enter
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into this Agreement and the agreements contemplated hereby and to deliver the
Shares and the certificates evidencing such Shares to Purchaser as provided for
herein, free and clear of all Liens, except as otherwise disclosed on Schedule
2.5. The execution, delivery and performance of this Agreement and all other
agreements and transactions contemplated hereby have been duly authorized by
Seller's Board of Managers and no other proceedings on its part are necessary to
authorize this Agreement and the transactions contemplated hereby. This
Agreement and all other agreements contemplated hereby to be entered into by
Seller constitute a legal, valid and binding obligation of Seller enforceable
against Seller in accordance with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency and other laws
affecting the enforcement of creditors' rights generally and equitable
principles of general application.
2.8 No Violation. Except as set forth in Schedule 2.8 hereto, the
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execution and delivery by Seller of this Agreement, and all other agreements
contemplated hereby to be executed and delivered by Seller, and the fulfillment
of and compliance with the respective terms hereof and thereof by Seller do not
and will not (a) conflict with or result in a breach of the terms, conditions or
provisions of, (b) constitute a default or event of default under (with due
notice, lapse of time or both), (c) result in the creation of any Lien upon the
Company's capital stock or assets pursuant to, (d) give any third party the
right to accelerate any obligation under, (e) result in a violation of, or (f)
require any authorization, consent, approval, exemption or other action by or
notice to any court or Authority (as defined in Section 12.3) pursuant to, the
certificate of formation or the limited liability company agreement of Seller
and the charter or bylaws of the Company, or any Regulation (as defined in
Section 12.3) to which Seller or the Company is subject, or any Order (as
defined in Section 12.3) or Material Contract (as defined in Section 12.3) to
which Seller or the Company or their respective properties are subject. Seller
will comply with all applicable Regulations and Orders in connection with the
execution, delivery and performance of this Agreement and the transactions
contemplated hereby.
2.9 Financial Statements.
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(a) Attached as Schedule 2.9(a)(1) hereto are the audited
financial statements of the Company as of and for the year ended October 31,
2004 and the unaudited balance sheet and statements of operations and cash flows
for the Company as of and for the ten months ended August 31, 2005. The
financial statements as of and for the ten months ended August 31, 2005
("Financial Statement Date") are hereinafter referred to as the ("Financial
Statements"). The financial statements, including the Financial Statements,
present fairly, in all material respects, the financial position of the Company
as at their respective dates, and the results of its operations and its cash
flows for the respective periods then ended in accordance with GAAP (as defined
in Section 12.3) applied on a consistent basis, except for (i) as disclosed on
Schedule 2.9(a)(2) and
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(ii) the absence of footnotes and normal, recurring year-end adjustments, which
are consistent with past practice, in the case of the Financial Statements. The
Company has no liability, whether accrued, absolute or contingent, of a type
required to be reflected on a balance sheet or described in the notes thereto in
accordance with GAAP (except for the absence of footnotes and normal, recurring
year-end adjustments, which are consistent with past practice, in the case of
the Financial Statements), other than (i) liabilities which have been reflected
or reserved against in the Financial Statements, (ii) liabilities incurred since
the Financial Statement Date in the ordinary course of business, (iii)
liabilities covered by insurance or reinsurance, and (iv) liabilities disclosed
in Schedule 2.9(a)(2) hereto.
(b) Except as set forth in Schedule 2.9(b) hereto, the Company
does not have any material Indebtedness (as defined in Section 12.3), obligation
or liability (whether accrued, absolute, contingent, unliquidated or otherwise,
whether due or to become due) arising out of transactions entered into or
Occurrences (as defined in Section 12.3) that occurred at or prior to the
Closing Date, other than: (i) liabilities set forth in the Financial Statements
and (ii) liabilities and obligations which have arisen after the Financial
Statement Date in the ordinary course of business (none of which is a liability
resulting from breach of a Material Contract, breach of warranty, tort,
infringement, Claim or lawsuit).
2.10 Employees. The Company has been for the past four years, and
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currently is, in compliance in all material respects with all Federal, state and
local Regulations or Orders affecting employment and employment practices of the
Company (including those Regulations promulgated by the Equal Employment
Opportunity Commission), including terms and conditions of employment and wages
and hours. At the Effective Date, the Company will not have any liability to
any of its employees, officers or directors, except as will be reflected on the
Company's balance sheet as of October 31, 2005.
2.11 Absence of Certain Changes. Since the Financial Statement Date
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and except as set forth on Schedule 2.11, to the Knowledge of Seller and the
Company there has not been (a) any Material Adverse Change (as defined in
Section 12.3) in the business, financial condition or in the operations of the
Company's business; (b) any damage, destruction or loss, whether covered by
insurance or not, having a Material Adverse Effect, with regard to the Company's
properties and business; (c) any declaration, setting aside or payment of any
dividend or distribution (whether in cash, stock or property) in respect of the
Company's capital stock, or any redemption or other acquisition of such stock by
the Company; (d) any increase in the compensation payable to or to become
payable by the Company to its officers or employees or any adoption of or
increase in any bonus, insurance, pension or other employee benefit plan,
payment or arrangement made to, for or with any such officers or employees or
any Affiliate (as defined in Section 12.3) of the Company other than in the
normal course of business; (e) any entry into any Material Contract not in the
ordinary course of business, including without limitation any borrowing or
capital expenditure; or (f) any change by the Company in its accounting methods
or principles.
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2.12 Contracts.
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(a) Except as expressly contemplated by this Agreement or as set
forth on Schedule 2.12(a) hereto, as of the Closing Date, the Company is not a
party to any written or oral Material Contract relating to:
(i) pension, profit sharing, stock options, employee stock
purchase or other plan providing for deferred or other compensation to
employees or any other employee benefit plan, or any Contract with any
labor union;
(ii) Contract for the employment of any officer, individual
employee or other person on a full-time, part-time, consulting or other
basis or Contract relating to loans to officers, directors or Affiliates;
(iii) Contract relating to the borrowing of money or the
mortgaging, pledging or otherwise placing a Lien on any asset of the
Company;
(iv) Guarantee, bonds, letters of credit or performance bonds of
any obligation;
(v) Contract under which the Company is lessee of or holds or
operates any property, real or personal, owned by any other party, except
for any lease of real or personal property except as described in Schedule
2.14(b);
(vi) Contract under which the Company is lessor of or permits any
third party to hold or operate any property, real or personal, owned or
controlled by the Company; (vii) Contract the performance of which involves
a consideration in excess of $1,000,000 per year;
(viii) assignment, license, indemnification or Contract with
respect to any intangible property (including, without limitation, any
Proprietary Rights (as defined in Section 12.3));
(ix) warranty Contract with respect to its services rendered or
its products sold or leased;
(x) Contract under which it has granted any Person any
registration rights (including piggyback rights) with respect to any
securities;
(xi) Contract prohibiting it from freely engaging in any business
or competing anywhere in the world;
(xii) Contract for the purchase, acquisition or supply of
property and assets, whether for resale or otherwise, which requires the
expenditure in excess of $100,000 per year;
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(xiii) Contracts with independent agents or brokers;
(xiv) consulting, sales, commissions or marketing contracts;
(xv) Contracts providing for "take or pay" or similar
unconditional purchase or payment obligations, which involves a
consideration in excess of $100,000 per year; or
(xvi) Contracts with Persons with which, directly or indirectly,
Seller also has a Contract.
(b) Except as to the litigation disclosed in Schedule 11.2(d) and
as set forth on Schedule 2.12(b), the Company has performed in all material
respects all obligations required to be performed by it and is not in default in
any material respect under or in breach of nor in receipt of any written claim
of default or breach under any Material Contract to which the Company is
subject; to the Knowledge of Seller and the Company, no event has occurred which
with the passage of time or the giving of notice or both would result in a
default, breach or event of noncompliance under any Material Contract to which
the Company is subject; the Company has no present expectation or intention of
not fully performing all Material Contracts; the Company has no Knowledge of any
breach by the other parties to any Material Contract to which it is a party.
2.13 True and Complete Copies. Copies of Contracts and documents
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delivered and to be delivered hereunder by Seller or the Company are and will be
true and complete copies of such agreements, contracts and documents in all
material respects.
2.14 Title and Related Matters.
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(a) The Company has good and valid title to all of the properties
and assets reflected in the Financial Statements or acquired after the date
thereof (and for properties sold or otherwise disposed of since the date thereof
in the ordinary course of business), free and clear of all Liens, except (i)
statutory Liens not yet delinquent, (ii) Liens for Taxes (as defined in Section
2.16) not yet due and payable, (iii) such imperfections or irregularities of
title, Liens or charges as do not detract from or interfere with the present use
of the properties or assets subject thereto or affected thereby, otherwise
impair present business operations at such properties; or do not detract from
the value of such properties and assets, taken as a whole, (iv) as reflected in
the Financial Statements or disclosed herein, or (v) as disclosed on Schedule
2.12(a) and Schedule 2.14(b) (collectively, "Permitted Liens").
(b) The Company owns, and will on the Closing Date, own good and
valid title to all the material personal property and assets, tangible or
intangible, used in the business except as to those assets leased as set forth
in Schedule 2.14(b) hereto, all of which leases are in good standing and, to the
Knowledge of the Company, no party is in default thereunder. Except as set
forth in Schedule 2.14(b) hereto, none of the assets belonging to or held by the
Company is or will be on the Closing Date subject to any (i) Contracts of sale
or lease, or (ii) Liens other than Permitted Liens.
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(c) There has not been since the Financial Statement Date and will
not be prior to the Closing Date, any sale, lease, or any other disposition or
distribution by the Company of any of its assets or properties and any other
assets now or hereafter owned by it, except transactions in the ordinary and
regular course of business or as otherwise consented to by Purchaser. After the
Closing Date, Purchaser will own, or have the unrestricted right to use, all
properties and assets that are currently used in connection with the business of
the Company other than the Permitted Liens.
2.15 Litigation. Except as set forth on Schedule 2.12(b) and Schedule
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11.2(d), there is no Claim (as defined in Section 12.3) pending or, to the
Knowledge of Seller or the Company threatened against the Company which, if
adversely determined, would have a Material Adverse Effect on the Company, nor
is there any Order outstanding against the Company having, or which, insofar as
can be reasonably foreseen, in the future may have, a Material Adverse Effect on
the Company.
2.16 Tax Matters.
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(a) Except as disclosed on Schedule 2.16, the Company has filed
all federal, state, and local tax reports, returns, information returns and
other documents (collectively the "Tax Returns") required to be filed and has
duly paid or accrued on the Financial Statements all relevant Taxes (as
hereinafter defined). For these purposes, "Taxes" shall mean any income,
premium, gross receipts, alternative or add-on minimum, ad valorem, value added,
sales, use, property, personal property (tangible and intangible), stamp,
excise, duty, franchise, transfer, license, withholding, payroll, employment,
fuel, excess profits, occupational and other charges (including interest and
penalties) that are due to any federal, state, or local authorities
(collectively, the "Taxing Authorities") in connection with all taxable periods
ending on or before the Effective Date. All Taxes required to be paid for all
periods ending prior to or on the Effective Date have been, or will be, paid or
fully accrued for in accordance with GAAP, except as provided in Schedule 2.16
hereto. All Taxes which are required to be withheld or collected by the Company
have been duly withheld or collected and, to the extent required, have been paid
to the proper Taxing Authority or properly segregated or deposited as required
by applicable laws. There are no Liens for Taxes upon any property or assets of
the Company except for liens for Taxes not yet due and payable. Neither Seller
nor the Company has executed a waiver of the statute of limitations on the right
of any Taxing Authority to assess additional Taxes or to contest the income or
loss with respect to any Tax Return. The basis of any depreciable asset, and the
method used in determining allowable depreciation (including cost recovery), of
the Company is, to the Knowledge of the Company and Seller, correct and in
compliance in all material respects with the Internal Revenue Code of 1986, as
amended and the regulations thereunder (the "Code").
(b) Except as disclosed on Schedule 2.16, no issues have been
raised that are currently pending by any Taxing Authority in connection with any
Tax Returns. No material issues have been raised in any examination by any
Taxing Authority with respect to the Company which, by application of similar
principles, reasonably could be expected to result in a proposed deficiency for
any other period not so examined. There are no unresolved issues or unpaid
deficiencies relating to such examinations.
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(c) The Company is not subject to any joint venture, partnership,
or other arrangement or Contract which is treated as a partnership for federal
income tax purposes. The Company is not and never has been a party to any tax
sharing agreement.
(d) The Company is not a "consenting corporation", within the
meaning of Section 341(f)(1) of the Code, or comparable provisions of any state
statutes, and none of the assets of the Company is subject to an election under
Section 341(f) of the Code or comparable provisions of any state statutes.
(e) The Company is not and will not be required to recognize after
the Effective Date any taxable income in respect of accounting method
adjustments required to be made under the Tax Reform Act of 1986 or the Revenue
Act of 1987 for activities through the Effective Date.
(f) None of the assets of the Company constitutes tax-exempt bond
financed property or tax exempt use property within the meaning of Section 168
of the Code, and none of the assets of the Company are subject to a lease, safe
harbor lease, or other arrangement as a result of which the Company is not
treated as the owner for federal income tax purposes.
(g) The Company has not made or will become obligated to make, and
will, as a result of any event connected with the Closing become obligated to
make, any "excess parachute payment" as defined in Section 280G of the Code
(without regard to subsection (b)(4) thereof).
(h) Returns and Reports. Seller shall cause the Company to file
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all Tax Returns and reports with respect to Taxes which are required to be filed
for Tax periods ending on or before the Effective Date ("Pre-Closing Tax
Returns"). The Company shall pay all amounts shown to be due on such
Pre-Closing Tax Returns to the appropriate Taxing Authority as shown on the Post
Closing Audit. Purchaser shall cause the Company to assist Seller in filing the
Pre-Closing Tax Return to effect such filings.
(i) Tax Books and Records. Purchaser and Seller shall furnish or
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cause to be furnished to each other, upon request, as promptly as practicable,
such information (including access of books and records) and assistance relating
to the Company as is reasonably necessary for the filing of any return or
report, for the preparation for any audit, and for the prosecution or defense of
any claim relating to any proposed adjustment or refund Claim.
2.17 Compliance with Law and Applicable Government Regulations. The
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Company is presently complying in respect of its operations, practices, real
property, plants, structures, and other property, and all other aspects of its
business, with all applicable Regulations and Orders, including, but not limited
to, all Regulations relating to the safe conduct of business, environmental
protection, quality and labeling, antitrust, Taxes, consumer protection, equal
opportunity, discrimination, health, sanitation, fire, zoning, building and
occupational safety where such failure or failures to comply would individually
or in the aggregate have a Material Adverse Effect. There are no Claims
pending, nor to the Knowledge of Seller or the Company are there any Claims
threatened, nor has Seller or the Company received any written notice, regarding
any violations of any material Regulations and material Orders enforced by any
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Authority claiming jurisdiction over Seller or the Company including any
requirement of OSHA or any pollution and environmental control agency (including
air and water).
2.18 ERISA and Related Matters.
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(a) Benefit Plans; Obligations to Employees. Except as disclosed
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in Schedule 2.12(a), the Company is not a party to or participates in or has any
liability or contingent liability with respect to:
(i) any "employee welfare benefit plan", "employee pension
benefit plan" or "multiemployer plan" (as those terms are respectively
defined in Sections 3(1), 3(2) and 3(37) of the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"));
(ii) any retirement or deferred compensation plan, incentive
compensation plan, stock plan, unemployment compensation plan, vacation
pay, severance pay, bonus or benefit arrangement, insurance or
hospitalization program or any other fringe benefit arrangements (referred
to collectively hereinafter as "fringe benefit arrangements") for any
employee, director, consultant or agent, whether pursuant to contract,
arrangement, custom or informal understanding, which does not constitute an
"employee benefit plan" (as defined in Section 3(3) of ERISA); or
(iii) any employment agreement not terminable on 30 days' or less
written notice, without further liability.
2.19 Omitted
2.20 Banks, Brokers and Proxies. Schedule 2.20 hereto sets forth (i)
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the name of each bank, trust company, securities or other broker or other
financial institution with which the Company has an account, credit line or safe
deposit box or vault, or otherwise maintains relations; (ii) the name of each
person authorized by the Company to draw thereon or to have access to any such
safe deposit box or vault; (iii) the purpose of each such account, safe deposit
box or vault; and (iv) the names of all persons authorized by proxies, powers of
attorney or other instruments to act on behalf of the Company in matters
concerning its business or affairs. All such accounts, credit lines, safe
deposit boxes and vaults are maintained by the Company for normal business
purposes, and no such proxies, powers of attorney or other like instruments are
irrevocable.
2.21 Omitted
2.22 Environmental Matters. To the Knowledge of Seller and the Company
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and except as disclosed on Schedule 2.22 hereto: (a) neither the Company's
business or assets nor the operation thereof violates any applicable
Environmental Law (as defined in Section 12.3) in effect as the date hereof and
no condition or event has occurred which, with notice or the passage of time or
both, would constitute a violation of any Environmental Law; (b) the Company is
in possession of all environmental permits required under any applicable
Environmental Law for the conduct or operation of its business (or any part
thereof), and the Company is in compliance in all material respects with all of
the requirements and limitations included in such
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environmental permits; (c) the Company has not stored or used any pollutants,
contaminants or hazardous or toxic wastes, substances or materials (other than
petroleum products) on or at any of its property or facilities; (d) the Company
has not received any written notice from any Authority or Person that the
Company's business or assets or the operation of any of its facilities is in
violation of any Environmental Law or any environmental permit or that it is
responsible (or potentially responsible) for the cleanup of any pollutants,
contaminants, or hazardous or toxic wastes, substances or materials at, on or
beneath any of its property, or at, on or beneath any land adjacent thereto or
in connection with any waste or contamination site; (e) the Company is not the
subject of Federal, state, local, or private litigation or proceedings involving
a demand for damages or other potential liability with respect to violations of
Environmental Laws; (f) the Company has not buried, dumped, disposed, spilled or
released any pollutants, contaminants or hazardous or toxic wastes, substances
or materials under any Environmental Law nor are they currently stored or
otherwise located on any of the Company's property. The Company has timely
filed all reports required to be filed with respect to all of its property and
facilities and has generated and maintained in all material respects all
required data, documentation and records under all applicable Environmental
Laws.
2.23 Omitted
2.24 Dealings with Affiliates. Schedule 2.24 hereto sets forth a
--------------------------
complete list, including the parties, of all oral or written agreements and
arrangements between the Company and any Affiliate of the Company, which exists
on the Closing Date.
2.25 Insurance. The Company currently has, and through the Closing
---------
Date will have, insurance contracts or policies (the "Policies") in full force
and effect which provide for coverages that are usual and customary as to amount
and scope in the business of the Company. Schedule 2.25 hereto sets forth a
summary of all insurance contracts or policies that relate to liability or
excess liability insurance (collectively, the "Liability Policies") and all
other Policies, including the name of the insurer, the types, dates and amounts
of coverages, and any material coverage exclusions. Except as set forth in
Schedule 2.25 hereto all of the Policies and Liability Policies remain in full
force and effect. The Company has not breached or otherwise failed to perform
in any material respects its obligations under any of the Policies or the
Liability Policies nor has Seller or the Company received any adverse written
notice or written communication from any of the insurers party to the Policies
or the Liability Policies with respect to any such alleged breach or failure in
connection with any of the Policies or the Liability Policies. All Policies are
sufficient for compliance in all material respects with all Regulations, Orders
and all Material Contracts to which the Company is subject; are valid,
outstanding, collectible and enforceable policies; and will not in any material
way be affected by, or terminate or lapse by reason of, the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby. Neither Seller nor the Company has ever been refused any insurance with
respect to the Company's assets or operations, nor has coverage ever been
limited by any insurance carrier to which the Company has applied for any Policy
or with which the Company has carried a Policy.
2.26 Disclosure. Except as set forth on Schedule 2.26, to the
----------
Knowledge of Seller and the Company, neither this Agreement nor any of the
exhibits, attachments, written statements, documents, certificates or other
items prepared for or supplied to Purchaser by or on behalf of
11
Seller or the Company with respect to the transactions contemplated hereby taken
as a whole, contains any untrue statement of a material fact or omits a material
fact necessary to make each statement contained herein or therein not
misleading. Except as set forth on Schedule 2.26, to the Knowledge of Seller
and the Company, there is no fact which Seller or the Company have not disclosed
to Purchaser in writing and of which Seller or the Company or any of their
respective officers, directors or executive employees is aware and which could
reasonably be anticipated to have a Material Adverse Effect on either of the
Company or the ability of Purchaser to continue the business of the Company in
the same manner as the Company conducted its business prior to the Closing Date.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER
-------------------------------------------
Purchaser represents and warrants to Seller as follows as of the date
hereof and as of the Closing Date:
3.1 Corporate Organization, etc. Purchaser is a corporation duly
-----------------------------
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation with full corporate power and authority to carry
on its business as it is now being conducted and to own, operate and lease its
properties and assets. Purchaser is duly qualified or licensed to do business
in good standing in every jurisdiction in which the conduct of its business, the
ownership or lease of its properties, the proposed conduct of its business or
ownership or lease of its properties, or the transactions contemplated by this
Agreement, require it to be so qualified or licensed and the failure to be so
qualified or licensed would have a Material Adverse Effect on its business.
3.2 Authorization, etc. Purchaser has full corporate power and
-------------------
authority to enter into this Agreement and to carry out the transactions
contemplated hereby. The Board of Directors of Purchaser has duly authorized
the execution, delivery and performance of this Agreement and the transactions
contemplated hereby, and no other corporate proceedings on its part are
necessary to authorize this Agreement and the transactions contemplated hereby.
This Agreement constitutes the legal, valid and binding obligation of Purchaser
enforceable against it in accordance with its terms.
3.3 No Violation. Except as set forth in Schedule 3.3 hereto, the
-------------
execution, delivery and performance by Purchaser of this Agreement, and all
other agreements contemplated hereby, and the fulfillment of and compliance with
the respective terms hereof and thereof by Purchaser, do not and will not (a)
conflict with or result in a breach of the terms, conditions or provisions of,
(b) constitute a default or event of default under (with due notice, lapse of
time or both), (c) give any third party the right to accelerate any obligation
under, (d) result in a violation of, or (e) require any authorization, consent,
approval, exemption or other action by or notice to any court or Authority
pursuant to, the charter or bylaws of Purchaser, or any Regulation to which
Purchaser is subject, or any Contract or Order to which Purchaser or its
properties are subject. Purchaser will comply with all applicable Regulations
and Orders in connection with its execution, delivery and performance of this
Agreement and the transactions contemplated hereby.
12
3.4 Governmental Authorities. Purchaser has complied in all material
-------------------------
respects with all applicable Regulations in connection with its execution,
delivery and performance of this Agreement and the agreements and transactions
contemplated hereby. Except as set forth in Schedule 3.4 hereto, Purchaser is
not required to submit any notice, report, or other filing with any governmental
authority in connection with its execution or delivery of this Agreement or the
consummation of the transactions contemplated hereby. Except as set forth in
Schedule 3.4 hereto, no authorization, consent, approval, exemption or notice is
required to be obtained by Purchaser in connection with the execution, delivery,
and performance of this Agreement and the agreements and transactions
contemplated hereby.
3.5 Charys Shares. Purchaser owns and holds good and valid title to
--------------
the Charys Shares free and clear of any Lien of any kind. The Charys Shares
are, and at Closing will be, duly authorized, duly and validly issued, fully
paid and non-assessable, and none were issued or will be issued in violation of
any preemptive rights, rights of first refusal or any other contractual or legal
restrictions of any kind.
ARTICLE 4
COVENANTS OF SELLER
-------------------
Until the Closing Date, except as otherwise consented to or approved by
Purchaser in writing, Seller covenants and agrees that it shall act, and shall
cause the Company so to act or refrain from acting where required hereinafter,
to comply with the following:
4.1 Regular Course of Business. The Company shall operate its business
--------------------------
diligently and in good faith, consistent with past management practices; shall
maintain all of its properties in the Company's customary fashion, shall
maintain (except for expiration due to lapse of time) all material leases and
Material Contracts described herein in effect without change except as expressly
provided herein; shall comply in all material respects with the provisions of
all Regulations and Orders applicable to the Company and the conduct of its
business; shall not cancel, release, waive or compromise any debt, Claim or
right in its favor having a value in excess of $5,000; shall not alter the rate
or basis of compensation of any of its officers, directors or employees; shall
maintain insurance and reinsurance coverage up to the Closing Date with at least
the coverage and in the amounts set forth in Schedule 2.25; and shall pay all
Claims and accrue liabilities on their financial statements in the Company's
customary fashion and in accordance with standard industry practice.
4.2 Amendments. Except as required for the transactions contemplated
----------
in this Agreement, no change or amendment shall be made in the charter or
by-laws of the Company. The Company shall not merge into or consolidate with
any other corporation or person, or change the character of its business.
4.3 Capital Changes; Pledges. The Company shall not issue or sell any
-------------------------
shares of its capital stock of any class or issue or sell any securities
convertible into, or options, warrants to purchase or rights to subscribe to,
any shares of its capital stock and the Company shall not pledge or otherwise
encumber any shares of its capital stock.
13
4.4 Dividends. The Company shall not declare, pay or set aside for
---------
payment any dividend or other distribution in respect of its capital stock, nor
shall the Company, directly or indirectly, redeem, purchase or otherwise acquire
any shares of its capital stock.
4.5 Capital and Other Expenditures. The Company shall not make any
---------------------------------
capital expenditures, or commitments with respect thereto, except as provided in
Section 2.23.
4.6 Borrowing. The Company shall not incur, assume or guarantee any
---------
Indebtedness not reflected on the Financial Statements except in the ordinary
course of business or for purposes of consummation of transactions contemplated
by this Agreement and in any case only after consultation with Purchaser.
4.7 Other Commitments. Except as set forth in this Agreement, incurred
-----------------
or transacted in the ordinary course of business, or permitted in writing by
Purchaser, the Company shall not enter into any material transaction or make any
commitment or incur any material obligation (including entering into any real
property leases).
4.8 Omitted.
4.9 Full Access and Disclosure.
-----------------------------
(a) Seller and the Company shall afford to Purchaser and its
counsel, accountants and other authorized representatives reasonable access
during business hours to each of the Company's facilities, properties, books and
records in order that Purchaser may have full opportunity to make such
reasonable investigations as it shall desire to make of the affairs of the
Company; and Seller shall cause the Company's officers, employees and auditors
to furnish such additional financial and operating data and other information as
Purchaser shall, from time to time, reasonably request including, without
limitation, any internal control recommendations applicable to the Company made
by Seller's independent auditors in connection with its audit.
(b) From time to time, prior to the Closing Date, Seller shall
promptly supplement or amend information previously delivered to Purchaser with
respect to any matter hereafter arising which, if existing or occurring at the
date of this Agreement, would have been required to be set forth herein or
disclosed.
4.10 Consents. Seller and the Company shall use their commercially
--------
reasonable efforts to obtain on or prior to the Closing Date, all consents
necessary to the consummation of the transactions contemplated hereby.
4.11 Breach of Agreement. The Company shall not take, and Seller shall
-------------------
not take, any action or permit the Company to take any action which if taken
prior to the Closing Date would constitute a breach of this Agreement.
ARTICLE 5
COVENANTS OF PURCHASER
----------------------
5.1 Confidentiality. Purchaser shall, and shall cause its principals,
---------------
officers and other personnel and authorized representatives to, hold in
confidence, and not disclose to any other
14
party without Seller's prior written consent, all information received by it
from Seller's or the Company's officers, directors, employees, agents, counsel
and auditors in connection with the transactions contemplated hereby except as
may be required by applicable law or as otherwise contemplated herein.
5.2 Standby Letter of Credit. Within ninety (90) days after the
---------------------------
Closing Date, Purchaser shall replace City National Bank irrevocable standby
letter of credit #11171 (the "Letter of Credit"), securing an irrevocable letter
of credit for the Polices in the amount of $1,350,000. Notwithstanding anything
to the contrary contained herein, if on or before December 31, 2005, Purchaser
has paid in full all outstanding amounts due and owing to Xxxxxxx Xxxxx (as
defined in Section 5.5), then failure to replace the Letter of Credit within
such ninety (90) day period, shall not be deemed an event of default hereunder,
and Purchaser shall automatically be granted an additional thirty (30) days in
order to comply with the first sentence of this Section 5.2.
5.3 Payments to Investors. Within ninety (90) days after the Closing
-----------------------
Date, Purchaser shall cause the Company to pay the amount of $279,916 to
Preferred Management, LLC and $120,000 to H.I.G. Capital, LLC.
5.4 Continued D & O Insurance Coverage. Purchaser shall use its best
------------------------------------
efforts to obtain and maintain for a period of six (6) years after the Closing
Date, policies and contracts of insurance covering the liability of directors
and officers of the Company at least at the same level maintained by Seller on
the date hereof under the applicable Policies.
5.5 Payoff of Credit Agreement. On or before December 31, 2005,
-----------------------------
Purchaser shall use its best efforts to pay in full all outstanding amounts of
principal, interest, costs and expenses due and payable under those certain
agreements with Xxxxxxx Xxxxx Business Financial Services ("Xxxxxxx Xxxxx")
numbered 2BN-0736, 2BN-07937 and 2BN-0798, including the irrevocable standby
letters of credit secured by any of such agreements; provided, however, that the
failure to timely pay all such amounts in full shall not be deemed an event of
default hereunder, unless and until (a) Xxxxxxx Xxxxx provides notification to
any party hereto that the Company is in default thereunder and such default has
not been cured within the applicable cure period therefor or (b) Xxxxxxx Xxxxx
institutes collection efforts against Seller, and; provided, further, that, any
agreement between Xxxxxxx Xxxxx and Purchaser and/or the Company relating to
extensions of payment on any Indebtedness must release Seller from its security
agreement with Xxxxxxx Xxxxx and remove Xxxxxxx Xxxxx'x lien on the VA Job and
all procceds derived therefrom.
5.6 Apportionment of Litigation. Purchaser shall be responsible and
-----------------------------
shall pay the first $1,000,000 of Losses (as defined in Section 11.2) incurred
by the Company on account of the litigation described on Schedule 11.2(d)
attached hereto.
5.7 Efforts to Remove Seller as a Guarantor. Purchaser shall use its
-----------------------------------------
commercially reasonable efforts to cause Xxxxxxx Xxxxx (and all other applicable
lenders and sureties of the Company) to release Seller from its obligation as a
guarantor of any and all of the Company's Indebtedness.
15
5.8 Conduct of Business. Until such time as the Note is paid in full
---------------------
and Seller is removed as a guarantor of any and all of the Company's
Indebtedness, Purchaser shall (a) not declare, set aside or pay any dividend or
distribution (whether in cash, stock or property) in respect of the Company's
capital stock, or redeem or otherwise acquire such stock by the Company; (b)
deposit and use solely for the benefit of the Company the proceeds of any
refinancing transaction or any new Indebtedness, which Indebtedness is secured
by the assets of the Company; and (c) obtain and maintain policies and contracts
of insurance covering the assets of the Company at least at the same level
maintained by Seller on the date hereof under the applicable Policies.
5.9 Surety Bond. Within 180 days after the Closing Date, Purchaser
------------
shall secure the release of Seller, as principal, on Liberty Mutual Insurance
Company surety bond no. 000-000-000 in the amount of $375,000.
ARTICLE 6
OTHER AGREEMENTS
----------------
As a condition to the parties' obligation to consummate the transactions
contemplated hereby:
6.1 Agreement to Defend. In the event any action, suit, proceeding or
--------------------
investigation of the nature specified in Section 7.5 or Section 8.3 hereof is
commenced, whether before or after the Closing Date, all the parties hereto
agree to cooperate and use their commercially reasonable efforts to defend
against and respond thereto.
6.2 Non-Competition. Seller and its managing members will, at the
---------------
Closing, execute and deliver the Non-Competition Agreement in the form of
Exhibit 6.2 hereto (the "Non-Competition Agreement").
6.3 Further Assurances. Subject to the terms and conditions of this
-------------------
Agreement, each of the parties hereto shall use its commercially reasonable
efforts to take, or cause to be taken, all action, and to do, or cause to be
done, all things necessary, proper or advisable under applicable Regulations to
consummate and make effective the transactions contemplated by this Agreement.
If at any time after the Closing Date Purchaser shall consider or be advised
that any further deeds, assignments or assurances in law or in any other things
are necessary, desirable or proper to vest, perfect or confirm, of record or
otherwise, in Purchaser, the title to any property or rights of the Company
acquired or to be acquired by reason of, or as a result of, the acquisition,
Seller agrees that Seller and its proper officers shall execute and deliver all
such proper deeds, assignments and assurances in law and do all things
necessary, desirable or proper to vest, perfect or confirm title to such
property or rights in the Company and otherwise to carry out the purpose of this
Agreement, and that the proper officers and directors of Seller, and are fully
authorized in the name of Seller or otherwise to take any and all such action.
6.4 Consents. Without limiting the generality of Section 6.3, each of
--------
the parties hereto shall use its commercially reasonable efforts to obtain all
permits, authorizations, consents and approvals of all persons and governmental
authorities necessary, proper or advisable in
16
connection with the consummation of the transactions contemplated by this
Agreement prior to the Closing Date.
6.5 No Solicitation or Negotiation. Unless and until this Agreement is
------------------------------
terminated, Seller and the Company shall not, and each shall use its,
commercially reasonable efforts to cause its directors, officers, employees,
representatives, agents, advisors, accountants and attorneys not to, initiate or
solicit, directly or indirectly, any inquiries or the making of any proposal
with respect to, or engage in negotiations concerning, or provide any
confidential information or data to any person with respect to, or have any
discussions with any persons relating to, any acquisition, business combination
or purchase of all or any significant asset of, or any equity interest in,
directly or indirectly, the Company, or otherwise facilitate any effort or
attempt to do or seek any of the foregoing, and shall immediately cease and
cause to be terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any of the foregoing.
6.6 Deliveries After Closing. From time to time after the Closing, at
-------------------------
Purchaser's request and without expense to Seller and without further
consideration from Purchaser, Seller shall execute and deliver such other
instruments of conveyance and transfer and take such other action as Purchaser
reasonably may require to convey, transfer to and vest in Purchaser and to put
Purchaser in possession of any rights or property to be sold, conveyed,
transferred and delivered hereunder.
ARTICLE 7
CONDITIONS TO THE OBLIGATIONS OF PURCHASER
------------------------------------------
Each and every obligation of Purchaser under this Agreement shall be
subject to the satisfaction, on or before the Closing Date, of each of the
following conditions unless waived in writing by Purchaser:
7.1 Representations and Warranties; Performance. The representations
---------------------------------------------
and warranties of Seller contained in Article 2 and contained in any schedule
hereto, shall be true and correct in all material respects when made and shall
be true and correct in all material respects on the Closing Date as though then
made, except as expressly provided herein. Seller and the Company shall have
performed and complied in all material respects with all agreements, covenants
and conditions required by this Agreement to be performed and complied with by
them prior to the Closing Date. The Board of Managers of Seller, and the vice
president of the Company, shall each have delivered to Purchaser, a certificate
(which shall be addressed to Purchaser), dated the Closing Date, in the form of
Exhibit 7.1 hereto, certifying to the foregoing.
7.2 Omitted
7.3 Opinion of Seller's Counsel. Purchaser shall have received an
------------------------------
opinion of Seller's outside counsel (which will be addressed to Purchaser),
dated the Closing Date, in the form of Exhibit 7.3 hereto.
7.4 No Material Adverse Change. Other than losses incurred in the
-----------------------------
ordinary course of business, there shall have been no Material Adverse Change
since the date of this Agreement. Purchaser shall have received certificates
(which shall be addressed to Purchaser), dated the
17
Closing Date, from the chief financial officer of the Company, in the form
designated Exhibit 7.1 hereto, certifying to the foregoing.
7.5 No Proceeding or Litigation. No preliminary or permanent
------------------------------
injunction or other Order, decree or ruling issued by any Authority, or any
Regulation promulgated or enacted by any Authority shall be in effect, which
would prevent the consummation of the transactions contemplated hereby.
7.6 Omitted
7.7 Omitted
7.8 Non-Competition Agreement. The Non-Competition Agreement shall
--------------------------
have been fully executed and delivered by Seller and certain of its Affiliates
and shall be in full force and effect.
7.9 Accounting Certificates. Purchaser shall have received a
------------------------
certificate, dated the Closing Date, of the Company's chief financial officer in
the form of Exhibit 7.1 hereto attesting that the Company's financial statements
for the fiscal years ending October 31st, 2002, 2003, 2004 and the period ending
August 31, 2005 are accurate in all material respects.
7.10 Condition of Assets. The Company's material assets and material
---------------------
properties shall not have been damaged or destroyed, prior to the Closing Date,
by fire or other casualty and not fully covered by insurance (except for
reasonable deductibles) in an aggregate amount exceeding $100,000.
7.11 Proceedings and Documents. All corporate and other proceedings in
-------------------------
connection with the transactions contemplated hereby and all documents and
instruments incident to such transactions shall be reasonably satisfactory in
substance and form to Purchaser and Purchaser's counsel, and Seller and the
Company shall have made available to Purchaser for examination the originals or
true, complete and correct copies of all records and documents relating to the
business and affairs of the Company which Purchaser may reasonably request in
connection with said transaction.
7.12 Secretary's Certificate. Purchaser shall have received a
------------------------
certificate, substantially in the form of Exhibit 7.12 hereto, by the secretary
of the Company as to the charter and bylaws of the Company, and by the Board of
Managers of Seller as to the certificate of formation and the limited liability
company agreement of Seller, and the resolutions adopted by the Board of
Managers of Seller in connection with this Agreement.
7.13 Certificates of Good Standing. At the Closing, the Company shall
------------------------------
have delivered to Purchaser certificates issued by the appropriate governmental
authorities evidencing the good standing, with respect to both the conduct of
business and the payment of all franchise taxes, of the Company as of a date not
more than fifteen (15) days prior to the Closing Date as a corporation organized
under the laws of the states and as a foreign corporation authorized to do
business under the laws of the jurisdictions listed in the Schedules hereto.
7.14 Omitted
18
7.15 Omitted
7.16 Omitted
7.17 Management Agreement. Seller and the Company shall have entered
---------------------
into the Management Agreement regarding the operation of the VA Job
substantially in the form of Exhibit 7.17 hereto.
7.18 Omitted
7.19 Omitted
7.20 Other Documents. Seller and the Company shall furnish Purchaser
----------------
with such other and further documents and certificates including certificates of
the Company's officers and others as Purchaser shall reasonably request to
evidence compliance with the conditions set forth in this Agreement.
ARTICLE 8
CONDITIONS TO THE OBLIGATIONS OF SELLER
---------------------------------------
Each and every obligation of Seller under this Agreement shall be subject
to the satisfaction, on or before the Closing Date, of each of the following
conditions unless waived in writing by Seller:
8.1 Representations and Warranties; Performance. The representations
---------------------------------------------
and warranties of Purchaser contained in Article 3 and elsewhere in this
Agreement and all information contained in any exhibit, schedule or attachment
hereto, Purchaser, to Seller, shall be true and correct in all material respects
when made and shall be true and correct in all material respects on the Closing
Date as though then made, except as expressly provided herein. Purchaser shall
have performed and complied in all material respects with all agreements,
covenants and conditions required by this Agreement to be performed and complied
with by them prior to the Closing Date. The president of Purchaser shall have
delivered to Seller a certificate, dated the Closing Date, in the form of
Exhibit 8.1 hereto, certifying to the foregoing.
8.2 Consents and Approvals. Purchaser, Seller and the Company shall
------------------------
have obtained any and all material consents, approvals, orders, qualifications,
licenses, permits or other authorizations, required by all applicable
Regulations, Orders or Contracts of the Company or binding on their properties
and assets, with respect to the execution, delivery and performance of the
Agreement, the financing consummation of the transactions contemplated herein
and the conduct by Purchaser of the business of the Company in the same manner
after the Closing Date as before the Closing Date.
8.3 No Proceeding or Litigation. No preliminary or permanent
------------------------------
injunction or other Order, decree or ruling issued by any Authority, or any
Regulation promulgated or enacted by any Authority shall be in effect, which
would prevent the consummation of the transactions contemplated hereby.
19
ARTICLE 9
CLOSING
-------
9.1 Closing. Unless this Agreement shall have been terminated or
-------
abandoned pursuant to the provisions of Article 10 hereof, a closing of the
transactions contemplated by this Agreement (the "Closing") shall be held on or
before November 15, 2005, or on such other mutually agreed to date (the "Closing
Date").
9.2 Intervening Litigation. If prior to the Closing Date any
-----------------------
preliminary or permanent injunction or other Order issued by a court of
competent jurisdiction or by any other Authority shall restrain or prohibit this
Agreement or the consummation of the transactions contemplated herein for a
period of fifteen days or longer, the Closing shall be adjourned at the option
of either party for a period of thirty days. If at the end of such thirty day
period such injunction or Order shall not have been favorably resolved, either
party may, by written notice thereof to the other, terminate this Agreement,
without liability or further obligation hereunder.
ARTICLE 10
TERMINATION AND ABANDONMENT
10.1 Methods of Termination. This Agreement may be terminated and the
-----------------------
transactions herein contemplated may be abandoned at any time:
(a) by mutual consent of Purchaser and Seller;
(b) by Purchaser or Seller if this Agreement is not consummated on
or before November 30, 2005; provided that if any party has breached or
defaulted with respect to its respective obligations under this Agreement on or
before such date, such party may not terminate this Agreement pursuant to this
Section 10.1(b), and each other party to this Agreement shall at its option
enforce its rights against such breaching or defaulting party and seek any
remedies against such party, in either case as provided hereunder and by
applicable law;
(c) by Purchaser if as of the Closing Date any of the conditions
specified in Article 7 hereof have not been satisfied in any material respect or
if Seller or the Company are otherwise in default in any material respect under
this Agreement; or
(d) by Seller if as of the Closing Date any of the conditions
specified in Article 8 hereof have not been satisfied in any material respect or
if Purchaser is otherwise in default in any material respect under this
Agreement.
10.2 Procedure Upon Termination. In the event of termination and
----------------------------
abandonment pursuant to Section 10.1 hereof, and subject to the proviso
contained in Section 10.1(b), this Agreement shall terminate and shall be
abandoned, without further action by any of the parties hereto. If this
Agreement is terminated as provided herein:
(a) each party shall redeliver all documents and other material of
any other party relating to the transactions contemplated hereby, whether
obtained before or after the execution hereof, to the party furnishing the same;
20
(b) all information received by any party hereto with respect to
the business of any other party or the Company (other than information which is
a matter of public knowledge or which has heretofore been or is hereafter
published in any publication for public distribution or filed as public
information with any governmental authority) shall not at any time be used for
the advantage of, or disclosed to third parties by, such party to the detriment
of the party furnishing such information; and
(c) no party hereto shall have any liability or further obligation
to any other party to this Agreement except for the confidentiality provisions
set forth in Section 5.1 hereof.
ARTICLE 11
SURVIVAL OF TERMS; INDEMNIFICATION
----------------------------------
11.1 Survival. All of the terms and conditions of this Agreement,
--------
together with the representations, warranties and covenants contained herein or
in any instrument or document delivered or to be delivered pursuant to this
Agreement, shall survive the execution of this Agreement and the Closing
notwithstanding any investigation heretofore or hereafter made by or on behalf
of any party hereto; provided, however, that (a) the agreements and covenants
(other than the indemnification provisions set forth in this Article 11, which
shall survive as provided below) set forth in this Agreement shall survive and
continue until all obligations set forth therein shall have been performed and
satisfied; and (b) all representations and warranties, and the agreements of
Seller, the Company and Purchaser to indemnify each other set forth in this
Article 11, shall survive and continue for, and all Claims with respect thereto
shall be made prior to the end of, the first anniversary of the Post Closing
Determination Date, except for representations, warranties and indemnities for
which an indemnification Claim shall be pending as of the end of the applicable
period referred to above, in which event such indemnities shall survive with
respect to such Claim until the final disposition thereof. The parties hereto
acknowledge and agree that any matter set forth on any Schedule attached hereto
shall be deemed to be set forth in all other Schedules attached hereto whether
or not a specific cross reference appears therein.
11.2 Indemnification by Seller. Subject to this Article 11, Purchaser
--------------------------
and its officers, directors, employees, shareholders, representatives and agents
(collectively, the "Purchaser Indemnified Parties") shall be indemnified and
held harmless by Seller at all times after the Effective Date, against and in
respect of any and all damage, loss, deficiency, liability, obligation,
commitment, cost or expense (including the reasonable fees and expenses of
counsel) (collectively, "Losses") resulting from, or in respect of, any of the
following:
(a) Any misrepresentation, breach of warranty, or non-fulfillment
of any obligation on the part of Seller or the Company under this Agreement, any
document relating thereto or contained in any schedule or exhibit to this
Agreement or from any misrepresentation in or omission from any certificate,
schedule, other agreement or instrument by Seller or the Company hereunder;
(b) Any and all liabilities of the Company of any nature whether
accrued, absolute, contingent or otherwise, and whether known or unknown,
existing at the Effective Date to the extent not reflected and reserved against
in the Post Closing Audit or not otherwise
21
adequately disclosed in this Agreement or the schedules or exhibits thereto,
including, without limitation:
(i) All Tax liabilities of the Company, including federal, state
and local Tax liability, together with any interest or penalties thereon or
related thereto for all periods ending on or prior to the Effective Date
but excluding any Taxes to the extent there is an accrual or reserve on the
Post Closing Audit and any Tax liability of Seller arising in connection
with the transactions contemplated hereby. Any Taxes, penalties or interest
attributable to the operations of the Company payable as a result of an
audit of any Tax Return for any period ending on or prior to the Effective
Date shall be deemed to have accrued in the period to which such Taxes,
penalties or interest are attributable; and
(ii) All environmental liability relating to any of the Company's
properties, including federal, state and local environmental liability,
together with any interest or penalties thereon or related thereto, through
the Effective Date, but excluding any amount for which there is an accrual
or reserve on the Post Closing Audit.
(c) All demands, assessments, judgments, costs and reasonable
legal and other expenses arising from, or in connection with any Claim incident
to any of the foregoing.
(d) All Losses in excess of one million dollars ($1,000,000)
arising from the litigation described in Schedule 11.2(d), so long as Purchaser
has acted in good faith and has not interfered with Seller's ability to settle
such litigation and that Seller shall have maintained control of the litigation
and the conduct of any settlement discussions relating to such litigation.
11.3 Limits on Seller's Indemnification Obligations.
--------------------------------------------------
(a) Seller shall have no any obligation to indemnify any of the
Purchaser Indemnified Parties: (i) unless and until the aggregate amount of
Losses for which such Purchaser Indemnified Parties are seeking indemnification
exceeds $50,000, in which event the Purchaser Indemnified Parties shall be
entitled to be indemnified for all such Losses, or (ii) to the extent that the
aggregate amount of all Losses for which such Purchaser Indemnified Parties are
seeking or have received indemnification exceeds $500,000 (the "Cap"). Seller
acknowledges and agrees that Purchaser shall have the right of set off and
reduction ("Set Off") up to the Cap against the Note (in reverse maturity order
of the Note) in respect of all Losses for which the Purchaser Indemnified
Parties are entitled to indemnification under Section 11.2. If Purchaser elects
to exercise its right of Set Off pursuant to the provisions of the immediately
preceding sentence, Purchaser shall give written notice thereof to Seller,
specifying the nature and amount of such Claim and that Purchaser has exercised
its right of Set Off.
(b) The amounts for which Seller shall be liable hereunder shall
be (i) net of any insurance proceeds received by the Purchaser Indemnified
Parties in connection with the circumstances giving rise to the right of
indemnification and (ii) limited to the actual and direct Losses incurred by the
Purchaser Indemnified Parties and shall not include any indirect, consequential,
incidental, special, exemplary or punitive Losses. Purchaser covenants and
agrees on a reasonable and best efforts basis to first attempt to collect the
amount of all Losses through its insurance policies, prior to pursuing its right
of indemnification hereunder.
22
11.4 Omitted
11.5 Indemnification by Purchaser. Subject to this Article 11, Seller
-----------------------------
and its officers, directors, employees, shareholders, representatives and agents
shall be indemnified and held harmless by Purchaser at all times after the
Effective Date, against and in respect of any and all Losses resulting from, or
in respect of, any of the following:
(a) Any misrepresentation, breach of warranty, or non-fulfillment
of any obligation on the part of Purchaser under this Agreement (including,
without limitation, the covenants and agreements made by Purchaser in Article
5), any document relating hereto or thereto or contained in any schedule or
exhibit to this Agreement or from any misrepresentation in or omission from any
certificate, other agreement or instrument by Purchaser hereunder.
(b) Any and all liabilities of Seller arising out of, or in
connection with, the guarantees made or granted by Seller on account of any of
the Company's Indebtedness.
(c) All demands, assessments, judgments, costs and reasonable
legal and other expenses arising from, or in connection with, any action, suit,
proceeding or claim incident to any of the foregoing.
11.6 Third-Party Claims. Except as otherwise provided in this
-------------------
Agreement, the following procedures shall be applicable with respect to
indemnification for third-party Claims. Promptly after receipt by the party
seeking indemnification hereunder (hereinafter referred to as the "indemnitee")
of notice of the commencement of any (a) Tax audit or proceeding for the
assessment of Tax by any Taxing Authority or any other proceeding likely to
result in the imposition of a Tax liability or obligation or (b) any action or
the assertion of any Claim, liability or obligation by a third-party (whether by
legal process or otherwise), against which Claim, liability or obligation the
other party to this Agreement (hereinafter the "indemnitor") is, or may be,
required under this Agreement to indemnify such indemnitee, the indemnitee will,
if a Claim thereon is to be, or may be, made against the indemnitor, notify the
indemnitor in writing of the commencement or assertion thereof and give the
indemnitor a copy of such Claim, process and all legal pleadings. The
indemnitor shall have the right to participate in the defense of such action
with counsel of reputable standing. The indemnitor shall have the right to
assume the defense of such action unless such action (i) may result in
injunctions or other equitable remedies in respect of the indemnitee or its
business; (ii) may result in liabilities which, taken with other then existing
Claims under this Article 11, would not be fully indemnified hereunder; or (iii)
may have an adverse impact on the business or financial condition of the
indemnitee after the Closing Date (including an effect on the tax liabilities,
earnings or ongoing business relationships of the indemnitee). The indemnitor
and the indemnitee shall cooperate in the defense of such Claims. In the case
that the indemnitor shall assume or participate in the defense of such audit,
assessment or other proceeding as provided herein, the indemnitee shall make
available to the indemnitor all relevant records and take such other action and
sign such documents as are necessary to defend such audit, assessment or other
proceeding in a timely manner. If the indemnitee shall be required by judgment
or a settlement agreement to pay any amount in respect of any obligation or
liability against which the indemnitor has agreed to indemnify the indemnitee
under this Agreement, the indemnitor shall promptly reimburse the indemnitee in
any amount equal to the amount of such payment plus all reasonable expenses
(including legal fees
23
and expenses) incurred by such indemnitee in connection with such obligation or
liability subject to this Article 11.
Prior to paying or settling any Claim against which an indemnitor is, or
may be, obligated under this Agreement to indemnify an indemnitee, the
indemnitee must first supply the indemnitor with a copy of a final court
judgment or decree holding the indemnitee liable on such claim or failing such
judgment or decree, must first receive the written approval of the terms and
conditions of such settlement from the indemnitor. An indemnitor shall have the
right to settle any Claim against it, subject to the prior written approval of
the other, which approval shall not be unreasonably withheld.
An indemnitee shall have the right to employ its own counsel in any case,
but the fees and expenses of such counsel shall be at the expense of the
indemnitee unless (a) the employment of such counsel shall have been authorized
in writing by the indemnitor in connection with the defense of such action or
Claim, (b) the indemnitor shall not have employed counsel in the defense of such
action or Claim, or (c) such indemnitee shall have reasonably concluded that
there may be defenses available to it which are contrary to, or inconsistent
with, those available to the indemnitor, in any of which events such fees and
expenses of not more than one additional counsel for the indemnified parties
shall be borne by the indemnitor. Any and all Claims made by Purchaser against
Seller for indemnification under this Article 11 may be, but are not required to
be, settled by payment from the Escrow Account.
11.7 Arbitration. Each controversy or claim arising out of or relating
-----------
to indemnification pursuant to Article 11 of this Agreement, not otherwise
disposed of pursuant to the provisions set forth in this Article 11 above, shall
be settled by arbitration in accordance with the rules of the American
Arbitration Association, and judgment upon the award rendered in such
arbitration shall be final and binding upon the parties and may be entered in
any court having jurisdiction thereto. Notice of the demand for arbitration
shall be filed in writing with the other party to this Agreement and with the
Miami, Florida, office of the American Arbitration Association, which such
demand shall set forth in the same degree of particularity as required for
complaints under the Federal Rules of Civil Procedure the claims to be submitted
to arbitration. Additionally, the demand for arbitration shall include
appropriate copies of all documents on which the claims are based and a list of
all persons who the party seeking arbitration will call as witnesses with
respect to such claims. In no event shall the demand or arbitration be made,
after the date when institution of legal or equitable proceedings based on such
claim, dispute or other matter in question would be barred by the applicable
statutes of limitations. This Agreement to arbitrate may be specifically
enforced by a court of competent jurisdiction under the applicable law of the
State of Florida pertaining to arbitrations.
The arbitration shall be conducted by a panel of three arbitrators at the
Miami, Florida, office of the American Arbitration Association. The rules of
the American Arbitration Association concerning commercial disputes shall be
applicable to any such arbitration proceeding except as they may be modified by
the terms of this Agreement.
Each party shall select one arbitrator, and the two arbitrators so selected
shall select a third arbitrator. If a party fails to select an arbitrator, then
the party who has selected an arbitrator shall select a second arbitrator and
the two arbitrators so selected shall act. If the two
24
arbitrators selected by the parties cannot agree on a third arbitrator, the
names of three candidates (meeting all of the qualifications of an arbitrator as
hereinafter provided) shall be chosen by the president of the Dade County Bar
Association, or his delegate, and the name of one such candidate shall be drawn
by lot by such Bar Association official, and such procedure shall be followed
until a third arbitrator willing to act is selected.
The arbitrators shall have the authority and jurisdiction to enter any
pre-arbitration awards that would aid and assist the conduct of the arbitration
or preserve the parties' rights with respect to the arbitration as the
arbitrators shall deem appropriate in their discretion. The award of the
arbitrators shall be in writing and it shall specify in reasonable detail the
issues submitted to arbitration and the award of the arbitrators with respect to
each of the issuers so submitted.
The provisions of the Federal Rules of Civil Procedure relating to the
right of discovery in civil actions shall be applicable to such arbitration
proceedings except as modified by the terms of this Agreement. Within thirty
(30) days after the commencement of any arbitration proceeding under this
Agreement, each party shall file with the arbitrators its contemplated discovery
plan outlining the desired documents to be produced, the depositions to be taken
and any other discovery action sought in the arbitration proceeding. After a
hearing, the arbitrators in an interim award shall fix the scope and content of
each party's discovery plan as the arbitrators deem appropriate. The arbitrators
shall have the authority to modify, amend or change such interim award fixing
the discovery plans of the parties upon application by either party, if good
cause appears for doing so.
The prevailing party as determined by the arbitrators shall be entitled to
recover from the losing party reasonable expenses, attorneys' fees and costs
actually incurred in connection therewith and in the enforcement or collection
of any judgment or award rendered therein. The prevailing party means the party
determined by the arbitrators to have most nearly prevailed, even if such party
does not prevail in all matters, or is not the party in whose favor an award is
rendered. Included within the cost recoverable pursuant to the terms of this
Section shall be included service of process costs, filing fees, arbitration
fees, arbitrators' fees, court and reporter costs, investigative costs, and
expert witness fees.
The award pursuant to such arbitration will be final, binding and
conclusive. Upon final determination of the award, the party determined
obligated to pay will pay to the party determined entitled thereto, within
thirty (30) days of such final determination, the full amount, in cash, of such
award (which shall include such fees and costs as awarded by the arbitrators).
ARTICLE 12
MISCELLANEOUS PROVISIONS
------------------------
12.1 Amendment and Modification. Subject to applicable law, this
----------------------------
Agreement may be amended, modified and supplemented only by written agreement of
the parties hereto.
12.2 Entire Agreement. This Agreement, including the schedules and
-----------------
exhibits hereto and the documents, certificates and instruments referred to
herein, embodies the entire agreement and understanding of the parties hereto in
respect of the transactions contemplated by this Agreement and supersedes all
prior agreements, representations, warranties, promises,
25
covenants, arrangements, communications and understandings, oral or written,
express or implied, between the parties with respect to such transactions.
There are no agreements, representations, warranties, promises, covenants,
arrangements or understandings between the parties with respect to such
transactions, other than those expressly set forth or referred to herein.
12.3 Certain Definitions.
--------------------
"Affiliate" means, with respect to any Person, any other Person that,
---------
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person, where
"control" means, with respect to any Person the possession, directly or
indirectly, of the power to direct the management and policies of such
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Authority" means any governmental, regulatory or administrative body,
---------
agency, arbitrator or authority, any court or judicial authority, any
public, private or industry regulatory agency, arbitrator authority,
whether international, national, federal, state or local.
"Claim" means any action, claim, obligation, liability, expense,
---------
lawsuit, demand, suit, inquiry, hearing, investigation, notice of a
violation, litigation, proceeding, arbitration, or other dispute, whether
civil, criminal, administrative or otherwise, whether pursuant to
contractual obligations or otherwise.
"Contract" means any agreement, contract, commitment, instrument or
---------
other binding arrangement or understanding, whether written or oral.
"Environmental Law" means any Regulation, Order, consent decree, or
-----------------
settlement agreement, which relates to or otherwise imposes liability or
standards of conduct concerning mining or reclamation of mined land,
discharges, emissions, releases or threatened releases of noises, odors or
any pollutants, contaminants or hazardous or toxic wastes, substances or
materials, whether as matter or energy, into ambient air, water, or land,
or otherwise relating to the manufacture, processing, generation,
distribution, use, treatment, storage, disposal, cleanup, transport or
handling of pollutants, contaminants, or hazardous wastes, substances or
materials, including (but not limited to) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Superfund Amendments
and Reauthorization Act of 1986, as amended, the Resource Conservation and
Recovery Act of 1976, as amended, the Toxic Substances Control Act of 1976,
as amended, the Federal Water Pollution Control Act Amendments of 1972, the
Clean Water Act of 1977, as amended, any so-called "Superlien" law, and any
other similar Federal, state or local statutes.
"GAAP" means generally accepted accounting principles in the United
----
States of America, applied on a consistent basis with the Financial
Statements, as in existence at the date hereof.
"Guarantee" means any guarantee or other contingent liability (other
---------
than any endorsement for collection or deposit in the ordinary course of
business), direct or
26
indirect with respect to any obligations of another Person, through an
agreement or otherwise, including, without limitation, (a) any endorsement
or discount with recourse or undertaking substantially equivalent to or
having economic effect similar to a guarantee in respect of any such
obligations and (b) any Contract (i) to purchase, or to advance or supply
funds for the payment or purchase of, any such obligations, (ii) to
purchase, sell or lease property, products, materials or supplies, or
transportation or services, in respect of enabling such other Person to pay
any such obligation or to assure the owner thereof against loss regardless
of the delivery or nondelivery of the property, products, materials or
supplies or transportation or services or (iii) to make any loan, advance
or capital contribution to or other investment in, or to otherwise provide
funds to or for, such other Person in respect of enabling such Person to
satisfy an obligation (including any liability for a dividend, stock
liquidation payment or expense) or to assure a minimum equity, working
capital or other balance sheet condition in respect of any such obligation.
"Indebtedness" with respect to any Person means any obligation of such
------------
Person for borrowed money, but in any event shall include (a) any
obligation incurred for all or any part of the purchase price of property
or other assets or for the cost of property or other assets constructed or
of improvements thereto, other than accounts payable included in current
liabilities and incurred in respect of property purchased in the ordinary
course of business, (b) the face amount of all letters of credit issued for
the account of such Person and all drafts drawn thereunder, (c) obligations
(whether or not such Person has assumed or become liable for the payment of
such obligation) secured by Liens, (d) capitalized lease obligations, and
(e) all Guarantees of such Person.
"Knowledge" with respect to Seller, means the actual knowledge of the
---------
members of the Board of Managers of Seller, and with respect to the
Company, means the actual knowledge of the officers of the Company.
"Lien" means any security interest, lien, mortgage, pledge,
----
hypothecation, encumbrance, Claim, easement, restriction or interest of
another Person of any kind or nature.
"Market Price" means the average weighted closing bid price per share,
------------
weighted by volume, of Charys Common Stock for the twenty (20) consecutive
trading days ending on the Closing Date.
"Material Adverse Change" means any developments or changes which
-----------------------
would have a Material Adverse Effect.
"Material Adverse Effect" means any circumstances, state of facts or
-----------------------
matters which might reasonably be expected to have a material adverse
effect in respect of the Company's business, operations, properties,
assets, condition (financial or otherwise), results, plans or strategies.
"Material Contract" means, in addition to the Contracts set forth on
-----------------
Schedule 2.12(a), any Contract that is not terminable without penalty
within twelve (12) months and contains obligations in excess of $100,000
per year.
27
"Occurrence" means any accident, happening or event which occurs or
----------
has occurred at any time prior to the Closing Date, which results in or
could result in a claim against the Company or creates or could create a
liability or loss for the Company.
"Order" means any decree, judgment, award, order, injunction, rule,
-----
consent of or by an Authority.
"Person" means any corporation, partnership, joint venture,
------
organization, entity, Authority or natural person.
"Proceeds" means, with respect to the VA Job, all amounts received by
--------
the Company in excess of the Estimated Costs to Complete (as such term is
defined in the Management Agreement).
"Proprietary Rights" means any patent, patent application, copyright,
------------------
trademark, trade name, service xxxx, service name, trade secret, know-how,
confidential information or other intellectual property or proprietary
rights.
"Regulation" means any law, statute, rule, regulation, ordinance,
----------
requirement, announcement or other binding action of or by an Authority.
12.4 Notices. All notices, requests, demands and other communications
-------
required when delivered by hand or mailed, first class certified mail with
postage paid or by overnight receipted courier service:
(a) If to Seller or the Company, to Preferred Employers Holdings,
Inc., located at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx, XX 00000, attention Xxxxxx X.
Xxxxxxxx, Esq., Email: xxxxxxxxx@xxxx.xxx, and to H.I.G. Viasys, Inc., located
at 0000 Xxxxxxxx Xxx Xxxxx, Xxxxx 0000, Xxxxx XX 00000, attention Xxxxxxx Xxxxxx
or to such other person or address as Seller shall furnish by notice to
Purchaser in writing.
(b) If to Purchaser, to Charys Holding Company, Inc., a Delaware
corporation located at 0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000, Xxxxxxx, XX
00000, attention Xxxxx X. Xxx CEO with a copy to: Xxxxxxx Xxxxxxx, Esq., 0000
Xxxxx Xxxxxxxx Xxxxxxx, Xxxxxxx Xxxxxxx 00000, Email: xxxxxxxxxxx@xxxxx.xxx,
Email: xxxxxxxx@xxxxxxxxxxxxxxxx.xxx, (o) 000 000 0000, (c) 000 000 0000, (f)
000 000 0000 or to such other person or address as Purchaser shall furnish by
notice to Seller in writing.
12.5 Assignment. This Agreement and all of the provisions hereof shall
----------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned by any of
the parties hereto without the prior written consent of the other parties,
except that Purchaser may assign its rights, interests and obligations hereunder
to an Affiliate, which to the reasonable satisfaction of Seller, has the ability
to comply with the financial obligations of Purchaser hereunder, and may grant
Liens or security interests in respect of its rights and interests hereunder
without the prior approval of Seller or the Company.
28
12.6 Governing Law. The Agreement shall be governed by the internal
--------------
laws of the State of Florida as to all matters, including but not limited to
matters of validity, construction, effect and performance.
12.7 Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.8 Headings. The article and section headings contained in this
--------
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
12.9 Binding Effect. This Agreement shall not be construed so as to
---------------
confer any right or benefit upon any Person other than the signatories to this
Agreement and each of their respective successors and permitted assigns.
12.10 Injunctive Relief. The parties hereto agree that in the event of
-----------------
a breach of any provision of this Agreement, the aggrieved party or parties may
be without an adequate remedy at law. The parties therefore agree that in the
event of a breach of any provision of this Agreement, the aggrieved party or
parties may elect to institute and prosecute proceedings in any court of
competent jurisdiction located in Miami-Dade County, Florida to enforce specific
performance or to enjoin the continuing breach of such provision, as well as to
obtain damages for breach of this Agreement. By seeking or obtaining any such
relief, the aggrieved party shall not be precluded from seeking or obtaining any
other relief to which it may be entitled.
12.11 Delays or Omissions. No delay or omission to exercise any right,
-------------------
power or remedy accruing to any party hereto, upon any breach or default of any
other party under this Agreement, shall impair any such right, power or remedy
of such party nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach or default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind or character on
the party of any party hereto of any breach or default under this Agreement, or
any waiver on the part of any party of any provisions or conditions of this
Agreement must be made in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement or by law or otherwise afforded to any party, shall be cumulative and
not alternative.
12.12 Severability. Unless otherwise provided herein, if any provision
------------
of this Agreement shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
effected or impaired thereby.
12.13 Expenses. Purchaser shall bear its own expenses, including
--------
without limitation, legal fees and expenses, with respect to this Agreement and
the transactions contemplated hereby. The Company on behalf of Seller shall
bear its own and Seller's expenses, including without limitation, legal fees and
expenses, with respect to this Agreement and the transactions contemplated
hereby.
29
IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement the date first hereinabove set forth.
CHARYS HOLDING COMPANY, INC.
------------------------------------------
Xxxxx X. Xxx, Xx., Chief Executive Officer
AGREED AND ACCEPTED BY:
New Viasys Holdings, LLC
By:
-----------------------------
Xxx Xxxxxx, Manager
By:
-----------------------------
Xxxxxxx Xxxxxx, Manager
Viasys Network Services, Inc.
By:
-----------------------------
Its (Vice) President
Date:
Viasys Services, Inc.
By:
-----------------------------
Its (Vice) President
Date:
30
SCHEDULES AND EXHIBITS
Schedule 1.1 Capital Stock S
Schedule 1.3 Unaudited Net Assets S
Schedule 1.3(a) VA Job S
Schedule 1.3.1 Note S
Schedule 1.3.1(a) Collateral Securing the Note S
Schedule 1.31(b) Security Agreement S
Schedule 1.3.2 Escrow Agreement S
Schedule 1.5 Earn Out S
Schedule 2.1(a) Jurisdictions of Qualification S
Schedule 2.1(b) The Company's Charter and Bylaw S
Schedule 2.2 Seller's and the Company's Subsidiaries S
Schedule 2.3 Capital Stock S
Schedule 2.5 Title to Stock S
Schedule 2.8 Violations S
Schedule 2.9(a)(1) Financial Statements S
Schedule 2.9(a)(2) Exceptions to GAAP S
Schedule 2.9(b) Undisclosed Liabilities S
Schedule 2.11 Absence of Certain Changes S
Schedule 2.12(a) Contracts S
Schedule 2.12(b) Defaults and Breaches Under Contracts; Claims S
Schedule 2.14(b) Leases S
Schedule 2.16 Taxes S
Schedule 2.20 Banks, Brokers and Proxies, Account Statements S
Schedule 2.22 Environmental Matters S
Schedule 2.24 Affiliated Transactions S
Schedule 2.25 Insurance S
Schedule 2.26 Disclosure S
Schedule 3.3 Purchaser's Violations P
Schedule 3.4 Governmental Consents P
Schedule 6.2 Affiliates Not Party to the Non-Competition Agreement S
Schedule 11.2(d) Apportioned Litigation S
Exhibit 7.1 Seller's Officer's Certificate S
Exhibit 7.3 Opinion of Counsel P
Exhibit 7.12 Secretary's Certificate S
Exhibit 7.17 Form of VA Job Management Agreement S
Exhibit 8.1 Purchaser's Officer's Certificate P
BRMFS1 629621v8
TABLE OF CONTENTS
ARTICLE 1
PURCHASE OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Purchase and Sale . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Base Purchase Price . . . . . . . . . . . . . . . . . . . . . . 1
1.4 First Adjustment to Base Purchase Price . . . . . . . . . . . . 2
1.5 Second Adjustment to Purchase Price . . . . . . . . . . . . . . 2
1.6 Additional Consideration. . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2
REPRESENTATIONS AND WARRANTIES OF SELLER. . . . . . . . . . . . . . . . . . 3
2.1 Organization, etc . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Subsidiaries. . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.3 Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.4 Corporate Record Books. . . . . . . . . . . . . . . . . . . . . 3
2.5 Title to Stock. . . . . . . . . . . . . . . . . . . . . . . . . 3
2.6 Options and Rights. . . . . . . . . . . . . . . . . . . . . . . 4
2.7 Authorization, etc. . . . . . . . . . . . . . . . . . . . . . . 4
2.8 No Violation. . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.9 Financial Statements. . . . . . . . . . . . . . . . . . . . . . 4
2.10 Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.11 Absence of Certain Changes. . . . . . . . . . . . . . . . . . . 5
2.12 Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.13 True and Complete Copies. . . . . . . . . . . . . . . . . . . . 7
2.14 Title and Related Matters . . . . . . . . . . . . . . . . . . . 7
2.15 Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.16 Tax Matters . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.17 Compliance with Law and Applicable Government Regulations . . . 9
2.18 ERISA and Related Matters . . . . . . . . . . . . . . . . . . . 10
2.19 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.20 Banks, Brokers and Proxies. . . . . . . . . . . . . . . . . . . 10
2.21 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.22 Environmental Matters 10
2.23 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.24 Dealings with Affiliates. . . . . . . . . . . . . . . . . . . . 11
2.25 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.26 Disclosure. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF PURCHASER . . . . . . . . . . . . . . . . 12
3.1 Corporate Organization, etc . . . . . . . . . . . . . . . . . . 12
3.2 Authorization, etc. . . . . . . . . . . . . . . . . . . . . . . 12
3.3 No Violation. . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.4 Governmental Authorities. . . . . . . . . . . . . . . . . . . . 13
3.5 Charys Shares . . . . . . . . . . . . . . . . . . . . . . . . . 13
i
ARTICLE 4
COVENANTS OF SELLER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.1 Regular Course of Business. . . . . . . . . . . . . . . . . . . 13
4.2 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.3 Capital Changes; Pledges. . . . . . . . . . . . . . . . . . . . 13
4.4 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.5 Capital and Other Expenditures. . . . . . . . . . . . . . . . . 14
4.6 Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.7 Other Commitments . . . . . . . . . . . . . . . . . . . . . . . 14
4.8 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.9 Full Access and Disclosure. . . . . . . . . . . . . . . . . . . 14
4.10 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.11 Breach of Agreement . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 5
COVENANTS OF PURCHASER. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . 14
5.2 Standby Letter of Credit. . . . . . . . . . . . . . . . . . . . 15
5.3 Payments to Investors . . . . . . . . . . . . . . . . . . . . . 15
5.4 Continued D & O Insurance Coverage. . . . . . . . . . . . . . . 15
5.5 Payoff of Credit Agreement. . . . . . . . . . . . . . . . . . . 15
5.6 Apportionment of Litigation . . . . . . . . . . . . . . . . . . 15
5.7 Efforts to Remove Seller as a Guarantor . . . . . . . . . . . . 15
5.8 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . 16
5.9 Surety Bond . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 6
OTHER AGREEMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.1 Agreement to Defend . . . . . . . . . . . . . . . . . . . . . . 16
6.2 Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . 16
6.3 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . 16
6.4 Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
6.5 No Solicitation or Negotiation. . . . . . . . . . . . . . . . . 17
6.6 Deliveries After Closing. . . . . . . . . . . . . . . . . . . . 17
ARTICLE 7
CONDITIONS TO THE OBLIGATIONS OF PURCHASER. . . . . . . . . . . . . . . . . 17
7.1 Representations and Warranties; Performance . . . . . . . . . . 17
7.2 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
7.3 Opinion of Seller's Counsel . . . . . . . . . . . . . . . . . . 17
7.4 No Material Adverse Change. . . . . . . . . . . . . . . . . . . 17
7.5 No Proceeding or Litigation . . . . . . . . . . . . . . . . . . 18
7.6 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.7 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.8 Non-Competition Agreement . . . . . . . . . . . . . . . . . . . 18
7.9 Accounting Certificates . . . . . . . . . . . . . . . . . . . . 18
7.10 Condition of Assets . . . . . . . . . . . . . . . . . . . . . . 18
7.11 Proceedings and Documents . . . . . . . . . . . . . . . . . . . 18
7.12 Secretary's Certificate . . . . . . . . . . . . . . . . . . . . 18
ii
7.13 Certificates of Good Standing . . . . . . . . . . . . . . . . . 18
7.14 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
7.15 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.16 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.17 Management Agreement. . . . . . . . . . . . . . . . . . . . . . 19
7.18 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.19 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.20 Other Documents . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 8
CONDITIONS TO THE OBLIGATIONS OF SELLER . . . . . . . . . . . . . . . . . . 19
8.1 Representations and Warranties; Performance . . . . . . . . . . 19
8.2 Consents and Approvals. . . . . . . . . . . . . . . . . . . . . 19
8.3 No Proceeding or Litigation . . . . . . . . . . . . . . . . . . 19
ARTICLE 9
CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9.2 Intervening Litigation. . . . . . . . . . . . . . . . . . . . . 20
ARTICLE 10
TERMINATION AND ABANDONMENT . . . . . . . . . . . . . . . . . . . . . . . . 20
10.1 Methods of Termination. . . . . . . . . . . . . . . . . . . . . 20
10.2 Procedure Upon Termination. . . . . . . . . . . . . . . . . . . 20
ARTICLE 11
SURVIVAL OF TERMS; INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . 21
11.1 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
11.2 Indemnification by Seller . . . . . . . . . . . . . . . . . . . 21
11.3 Limits on Seller's Indemnification Obligations. . . . . . . . . 22
11.4 Omitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
11.5 Indemnification by Purchaser. . . . . . . . . . . . . . . . . . 23
11.6 Third-Party Claims. . . . . . . . . . . . . . . . . . . . . . . 23
11.7 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 12
MISCELLANEOUS PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 25
12.1 Amendment and Modification. . . . . . . . . . . . . . . . . . . 25
12.2 Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . 25
12.3 Certain Definitions . . . . . . . . . . . . . . . . . . . . . . 26
12.4 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.5 Assignment. . . . . . . . . . . . . . . . . . . . . . . . . . . 28
12.6 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.7 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.8 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.9 Binding Effect. . . . . . . . . . . . . . . . . . . . . . . . . 29
12.10 Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . 29
12.11 Delays or Omissions . . . . . . . . . . . . . . . . . . . . . . 29
12.12 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . 29
12.13 Expenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
iii
Schedule 1.1
Stock Certificates
Viasys Services Inc.
Certificate # Number of Shares Certificate Holder
1 3,750 New Viasys Holdings, LLC
2 100 New Viasys Holdings, LLC
3 450 New Viasys Holdings, LLC
4 100 New Viasys Holdings, LLC
----------------
Total shares issued and outstanding 4,400
Viasys Network Services, Inc.
1 100 New Viasys Holdings, LLC
----------------
Total shares issued and outstanding 100
Schedule 1.3(a)
Accounts receivable $ 384,664
Retention receivable 410,382
Costs and estimate earnings in excess of xxxxxxxx 6,788,478
Accounts payable ( 351,032)
Xxxxxxxx in excess of costs and estimated earnings ( 26,948)
-----------
Net assets associated with VA Job $7,205,544
SECURITY AGREEMENT
THIS SECURITY AGREEMENT (this "Agreement") is made this 1st day of
---------
November, 2005 among Charys Holding Company, Inc., a Delaware corporation whose
principal executive office is located at 0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000,
Xxxxxxx, XX 00000 ("Charys"), Viasys Network Services Inc., a Florida
------
corporation whose principal executive office is located at 00 Xxxx Xxxx Xxxxx,
Xxxxxxxx, XX 00000 ("VNS"), Viasys Services Inc., a Florida corporation whose
---
principal executive office is located at 00 Xxxx Xxxx Xxxxx, Xxxxxxxx, XX 00000
("VSI", and together with Charys and VNS, collectively, "Debtor"), and New
--- ------
Viasys Holdings, LLC, a Delaware limited liability company whose principal
executive office is located at c/o Preferred Employers Holdings, Inc. 00000
Xxxxxxxx Xxxxxxxxx, Xxxxx, XX 00000 ("Secured Party").
--------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Stock Purchase Agreement (the "Stock Purchase
--------------
Agreement") dated as of the date hereof, by and between Charys and Secured
---------
Party, Secured Party is selling, and Charys is buying from Secured Party, all of
the issued and outstanding shares of capital stock of VNS and VSI;
WHEREAS, the Stock Purchase Agreement contains certain obligations,
representations, warranties and covenants;
WHEREAS, pursuant to Section 1.3.1 of the Stock Purchase Agreement, a
portion of the Base Purchase Price paid to Secured Party in consideration of the
Shares is a subordinated secured promissory note in the original principal
amount of THREE MILLION FIVE HUNDRED THOUSAND Dollars and 00/100 ($3,500,000)
(the "Promissory Note");
----------------
WHEREAS, Debtor has agreed to grant to Secured Party a continuing
subordinated security interest in the Collateral (as defined below) as security
for the Obligations (as defined below).
NOW, THEREFORE, in consideration of the mutual promises and the mutual
agreements and covenants hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto covenant and agree as follows:
1. Grant of Security Interest. As collateral security for the prompt
--------------------------
and complete payment and performance when due of the unpaid principal of and
interest on the Promissory Note, and any liabilities for breach(es) of any
representation, warranty, covenant, and/or agreement hereunder or under the
Stock Purchase Agreement, whether direct or indirect, absolute or contingent,
due or to become due, or now existing or hereafter incurred, which may arise
under, out of, or in connection with, the Promissory Note, the Stock Purchase
Agreement, or any other document or instrument made, delivered or given in
connection therewith, for the benefit of Debtor, in each case whether on account
of principal, interest, reimbursement obligations, fees, indemnities, costs,
expenses or otherwise (collectively, the "Obligations"), Debtor hereby grants to
-----------
Secured Party a continuing subordinated security interest in the Collateral
described in Section 2 hereof, subordinate only to a lien in the amount of
$2,200,000 being contemporaneously given to Highgate House Funds, Ltd., a Cayman
Islands company ("Highgate").
--------
2. Description of Collateral. The collateral for this Agreement
-------------------------
(collectively, the "Collateral") is all of Debtor's right, title and interest in
----------
and to (i) that certain Facilities Maintenance Agreement, dated as of January
27, 1992, and as amended as of November 2, 2005, between Georgia Electric
Company (n/k/a VSI) and Xxxxxx Tire & Rubber Co.; (ii) gross revenues and
receipts, money, securities and all proceeds derived from such contract; (iii)
all claims of VSI against Xxxxxx Tire & Rubber Co. relating to or arising out of
such contract; (iv) all of the issued and outstanding shares of capital stock of
each of VSI and VNS (the "Shares") together with the certificates, if any,
------
evidencing the Shares, and (v) all moneys, property or securities resulting from
a reorganization, reclassification or other similar transaction or otherwise
received in exchange for the Shares, and any warrants, rights or options issued
to the holder of, or otherwise in respect of, the Shares. The items set forth
in subsections (iv) and (v) hereof shall hereinafter be collectively referred to
as the "Share Collateral".
----------------
3. Subordination of Lien. Notwithstanding anything to the contrary
---------------------
contained herein, Secured Party acknowledges and agrees that it (i) is holding
the Share Collateral as agent, and on behalf of, Highgate; (ii) will not take
any action with respect to the Share Collateral pursuant to Sections 5, 6(b), or
7 hereof, and (iii) is not entitled to apply any funds as a result of the
enforcement of the Collateral, unless and until either Highgate shall have
received $2,200,000 from Debtor or any guarantors, or Secured Party shall have
received from Highgate reasonable written instructions as to the actions to be
taken to enforce the security interest granted herein.
4. Delivery of Share Collateral. All certificates or instruments
----------------------------
representing or evidencing the Shares (or any of it) shall be delivered to and
held by Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP (the "Escrow Agent"), and
------------
shall be in suitable form for transfer by delivery, or shall be accompanied by
duly executed instruments of transfer or assignment in blank, all in form and
substance reasonably satisfactory to the Escrow Agent and Secured Party. In
addition, the Escrow Agent shall have the right at any time to exchange
certificates or instruments representing or evidencing the Shares for
certificates or instruments of smaller or larger denominations.
5. Rights of Secured Party With Respect to the Share Collateral.
------------------------------------------------------------
Secured Party shall not be liable for failure to collect or realize upon the
Obligations or any collateral security or guarantee therefor, or any part
thereof, or for any delay in so doing, nor be under any obligation to take any
action whatsoever with regard thereto. Any part or all of the Share Collateral
held by the Escrow Agent (after disbursement by the Escrow Agent of the Share
Collateral in accordance with Section 6 below), may, if an Event of Default (as
defined in Section 11 below) has occurred and is continuing without notice, be
transferred into the name of Secured Party or its nominee, and Secured Party or
its nominee may thereafter without notice, exercise all rights in respect of the
Share Collateral, including the exercise of any and all rights of conversion,
exchange, subscription or any other rights, privileges or options in respect of
the Share Collateral, as if it were the absolute owner thereof, all without
liability except to account for property actually received by Secured Party or
its nominee; provided, however, that Secured Party shall not have any duty to
exercise any of the foregoing actions, or any liability for failure to do so or
delay in so doing.
2
6. Voting Rights; Dividends; Etc.
-----------------------------
(a) Prior to an Event of Default. So long as no Event of Default
----------------------------
or event which, with the giving of notice or the lapse of time, or both, would
become an Event of Default shall have occurred and be continuing:
(i) Debtor shall be entitled to exercise any and all voting
and other consensual rights pertaining to the Shares for any purpose not
inconsistent with the terms of this Agreement; provided, however, that, Debtor
-------- -------
shall not exercise or refrain from exercising any such right if, in the judgment
of Secured Party, such action would have a material adverse effect on the value
of the Collateral or any part thereof.
(ii) Debtor shall be entitled to receive and retain any and
all dividends made in respect of the Share Collateral, provided, however, that
-------- -------
any and all:
(A) dividends made or payable other than in cash in
respect of, and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, any Share Collateral,
(B) dividends and other distributions paid or payable in
cash in respect of any Share Collateral in connection with a partial or total
liquidation or dissolution or in connection with a reduction of capital, capital
surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed as a
return of capital in respect of, in redemption of, or in exchange for, any Share
Collateral,
shall be, and shall forthwith be delivered to Secured Party to hold as,
Collateral and, if received by Debtor, shall be received in trust for the
benefit of Secured Party, be segregated from the other property or funds of
Debtor, and be forthwith delivered to Secured Party as Collateral in the same
form as so received (together with any necessary endorsement).
(b) After an Event of Default. Upon the occurrence and during the
-------------------------
continuance of an Event of Default or an event which, with the giving of notice
or the lapse of time, or both, would become an Event of Default:
(i) All rights of Debtor to exercise the rights, which it
would otherwise be entitled to exercise pursuant to Section 6(a)(i) hereof shall
cease.
(ii) All rights of Debtor to receive the dividends, which it
would otherwise be authorized to receive and retain pursuant to Section 6(a)(ii)
hereof shall cease, and all such rights shall thereupon become vested in Secured
Party, which shall thereupon have the sole right to receive and hold such
distributions as Collateral.
(iii) All dividends which are received by Debtor contrary to
the provisions of Section 6(b)(ii) shall be received in trust for the benefit of
Secured Party, shall be segregated from other funds of Debtor and shall be
forthwith paid over to Secured Party as Collateral in the same form as so
received (together with any necessary endorsement).
3
7. Disbursement of Share Collateral by Escrow Agent.
-------------------------------------------------
(a) Disbursement In Accordance with Instructions by Secured Party.
-------------------------------------------------------------
Upon the occurrence and continuance of an Event of Default, Secured Party shall
send written notice to such effect to the Escrow Agent and Debtor specifying in
reasonable detail the nature of the Event of Default (the "Secured Party's Claim
---------------------
Notice"). The Secured Party's Claim Notice sent to the Escrow Agent shall
------
further include a statement that a copy of the Secured Party's Claim Notice has
been sent to Debtor via the same delivery method used for the Escrow Agent. The
Escrow Agent shall take no action for a period of fifteen (15) business days
(the "Waiting Period") commencing on the date it receives the Secured Party's
--------------
Claim Notice. Debtor may dispute the Secured Party's Claim Notice during the
Waiting Period by sending written notice (the "Debtor's Dispute Notice") setting
-----------------------
forth in reasonable detail the nature of its dispute with the Secured Party's
Claim Notice, to both the Escrow Agent and Secured Party. The Debtor's Dispute
Notice sent to the Escrow Agent shall further include a statement that a copy of
the Debtor's Dispute Notice was sent to Secured Party via the same delivery
method used for the Escrow Agent. If upon the expiration of the Waiting Period,
the Escrow Agent has not received a Debtor's Dispute Notice, it shall promptly
release the Share Collateral to Secured Party. If upon the expiration of the
Waiting Period, the Escrow Agent has received a Debtor's Dispute Notice, the
Escrow Agent shall continue to hold the Share Collateral until the dispute is
resolved, and the Escrow Agent receives an order or instructions in accordance
with subsection (c) hereof.
(b) Disbursement In Accordance with Instructions by Debtor. Upon
------------------------------------------------------
the payment and performance in full of the Obligations of Debtor to Secured
Party, Debtor will be entitled to the Share Collateral and shall send written
notice to such effect to the Escrow Agent and to Secured Party (the "Debtor's
--------
Claim Notice"). The Debtor's Claim Notice sent to the Escrow Agent shall further
------------
include a statement that a copy of the Debtor's Claim Notice has been sent to
Secured Party via the same delivery method used for the Escrow Agent. The
Escrow Agent shall take no action during the Waiting Period commencing on the
date it receives the Debtor's Claim Notice. Secured Party may dispute the
Debtor's Claim Notice during the Waiting Period by sending written notice (the
"Secured Party's Dispute Notice") setting forth in reasonable detail the nature
------------------------------
of its dispute with Debtor's Claim Notice, to both the Escrow Agent and Debtor.
The Secured Party's Dispute Notice sent to the Escrow Agent shall further
include a statement that a copy of the Secured Party's Dispute Notice was sent
to Debtor via the same delivery method used for the Escrow Agent. If upon the
expiration of the Waiting Period, the Escrow Agent has not received a Secured
Party's Dispute Notice it shall promptly release the Share Collateral to Debtor.
If upon the expiration of the Waiting Period, the Escrow Agent has received a
Secured Party's Dispute Notice, the Escrow Agent shall continue to hold the
Share Collateral until the dispute is resolved, and the Escrow Agent receives an
order or instructions in accordance with subsection (c) hereof.
(c) Dispute. In the event of any dispute among any of the parties
-------
with respect to Sections 7 (a) or (b) above, the Escrow Agent shall not comply
with any claims or demands from either Debtor or Secured Party as long as any
such dispute may continue, and the Escrow Agent shall make no delivery or other
disposition of any portion of the Share Collateral until (i) the Escrow Agent
has received a final non-appealable court order from a court of competent
jurisdiction directing disposition of the Share Collateral, (ii) the Escrow
Agent has received an
4
order of an arbitrator designated in writing jointly by Debtor and Secured Party
directing disposition of the Share Collateral, or (iii) the Escrow Agent has
received written instructions signed by both Debtor and Secured Party directing
disposition of the Share Collateral. If so requested by the Escrow Agent, any
court order delivered in accordance with subsection (i) herein shall be
accompanied by a legal opinion of counsel to the presenting party satisfactory
to the Escrow Agent to the effect that the order is final and non-appealable.
Upon receipt of the order or instructions referred to in subsections (i), (ii)
or (iii) herein, the Escrow Agent shall deliver the Share Collateral, or portion
thereof, as the case may be, in accordance with such order or instructions and
shall comply in all respects with such order or instructions.
(d) Interpleader. In the event that any dispute should arise
------------
under Sections 7 (a) or (b) above, or if a proceeding for the determination of a
dispute arising under Sections 7 (a) or (b) above is not begun and diligently
continued, the Escrow Agent shall be entitled, at the expense of Debtor and
Secured Party, to make an ex parte application, or bring any appropriate action,
for leave to deposit the Share Collateral with the clerk of any court of
competent jurisdiction seeking such determination or such declaratory relief as
the Escrow Agent shall deem reasonably necessary under the circumstances, and
the parties each hereby irrevocably consent to the entering of an ex parte order
pursuant to all applicable laws, rules and procedures of the State of Florida
and such court. The Escrow Agent shall be reimbursed by Secured Party and
Debtor, for all of the Escrow Agent's reasonable costs and expenses of such
action or proceeding, including, without limitation, attorneys' fees and
disbursements. Upon making any such ex parte application, the Escrow Agent
shall promptly give notice thereof to Secured Party and Debtor.
8. Escrow Agent's Liability. It is expressly understood and agreed by
------------------------
the parties that (a) the duties of the Escrow Agent, as herein specifically
provided, are purely ministerial in nature; (b) the Escrow Agent shall not be
responsible or liable in any manner whatsoever for, or have any duty to inquire
into, the sufficiency, correctness, genuineness or validity of the notices it
receives hereunder, or the identity, authority or rights of any of the parties;
(c) the Escrow Agent shall have no duties or responsibilities in connection with
the Collateral, other than those specifically set forth in this Agreement and
applicable law; (d) the Escrow Agent shall not incur any liability in acting
upon any signature, written notice, request, waiver, consent, receipt, or any
other paper or document believed by the Escrow Agent to be genuine; (e) the
Escrow Agent may assume that any person purporting to have authority to give
notices on behalf of any of the parties in accordance with the provisions hereof
has been duly authorized to do so; (f) the Escrow Agent shall incur no liability
whatsoever except for such resulting from its willful misconduct or gross
negligence, as long as the Escrow Agent has acted in good faith in the
performance of its duties hereunder or in accordance with the advice or opinion
of any counsel retained by it; (g) upon the Escrow Agent's performance of its
obligations under Section 7 hereof, the Escrow Agent shall be relieved of all
liability, responsibility and obligation with respect to the Collateral or
arising out of or under this Agreement; and (h) the Escrow Agent does not have
any interest in the Collateral deposited hereunder but is serving as the Escrow
Agent only and having only possession thereof.
9. Covenants of Debtor. Debtor hereby covenants represents, warrants
-------------------
and agrees that while any Obligations are outstanding:
(a) Debtor has and will have good and valid title to the
Collateral from time to time owned or acquired by it, free and clear of all
liens, encumbrances, pledges and security
5
interests of any kind or nature whatsoever (collectively, "Liens");
-----
(b) Debtor will not create or permit to exist any Lien upon or
with respect to any of the Collateral, except for the security interest granted
under this Agreement and the lien granted to Highgate;
(c) Debtor shall not change its name, state of incorporation, type
of entity, identity or corporate structure to such an extent that any financing
statement filed by Secured Party in connection with this Agreement would become
defective or materially misleading. The tax identification number of (i) VNS is
00-0000000, (ii) VSI is 00-0000000, and (iii) Charys is 00-0000000. The state
identification number of (i) VNS is P05000012213 (ii) VSI is G09210 and (iii)
Charys is 3791748.
(d) Debtor shall maintain the security interests created by this
Agreement and, at no cost or expense to Secured Party, shall defend Debtor's
right, title and interest in and to the Collateral, and defend the Collateral
against all other claims or demands of any other party and all other liabilities
of any nature whatsoever;
(e) Debtor, at its sole cost and expense, shall execute and
deliver, or cause to be duly executed and delivered, financing or continuation
statements and such further instruments and documents, and do and cause to be
done all such acts and things, as Secured Party may at any time reasonably
request to enforce, perfect and protect Secured Party's security interest in the
Collateral as herein provided and Secured Party's rights and remedies with
respect to the Collateral;
(f) Debtor shall keep and maintain at all times true and complete
books, records and accounts in which complete, true and correct entries shall be
made with respect to the Collateral and Debtor's transactions, in accordance
with generally accepted accounting principles and normal business practices;
Debtor shall permit Secured Party or its representatives to visit and inspect
any of the properties of Debtor, to examine Debtor's books of account and other
records and files and make copies thereof and to discuss the affairs, business,
finances and accounts of Debtor with Debtor's representatives and employees; and
Debtor shall make or permit Secured Party to make, upon request, a designation
on Debtor's books of account and records of the security interest granted
hereunder;
(g) Debtor shall promptly furnish Secured Party with all
information concerning the Collateral, the performance and payment of Debtor's
obligations, liabilities and indebtedness hereunder and the business, operations
and financial condition of Debtor, as Secured Party may request;
(h) Debtor shall not take any other action that would have a
material adverse effect on the perfection or otherwise impair the security
interest created hereby; and
(i) Debtor shall immediately notify Secured Party of any act,
condition, or event, which with the giving of notice or lapse of time, or both,
would constitute an Event of Default hereunder.
10. Financing Statements and Notice. Debtor hereby authorizes Secured
-------------------------------
Party, without
6
notice to Debtor, to file any financing statements and any amendments thereto or
continuations thereof, naming Debtor as grantor and Secured Party as secured
party. In order to perfect, maintain or protect its security interest, Secured
Party may give notice of its security interest in the Collateral and may deliver
a copy of this Agreement to any person.
11. Event of Default. If any or more of the following events (each, an
----------------
"Event of Default") shall occur:
----------------
(a) any breach, failure or violation by Debtor in the payment or
performance of any of Debtor's obligations, covenants or warranties under this
Agreement, and such breach, failure or violation continues uncorrected for a
period of three (3) days after receipt by Debtor of a written notice thereof
from Secured Party to Debtor; or
(b) an event of default as defined in the Promissory Note.
12. Secured Party's Rights and Remedies.
------------------------------------
(a) Upon notice to Debtor, Secured Party may at any reasonable
time and from time to time enter upon the premises where the Collateral is
located and inspect such Collateral, and Debtor shall assist Secured Party in
any way requested by Secured Party to make any such inspection.
(b) Upon the occurrence of an Event of Default, in addition to all
other rights and remedies provided hereunder, Secured Party shall have and may
exercise all of the rights and remedies provided by the Uniform Commercial Code
in effect in the State of Florida at the date of the execution of this
Agreement, and such other rights and remedies in respect thereof which it may
have at law or in equity or under this Agreement, including without limitation
the right to enter any premises where any Collateral is located and take
possession of the same without demand or notice and without prior judicial
hearing or legal proceedings, which Debtor hereby expressly waives, and to sell
all or any portion of the Collateral at public or private sale without prior
notice to Debtor except as otherwise required by law (and if notice is required
by law, after ten days' prior written notice) at such place or places and at
such time or times and in such manner and upon such terms, whether for cash or
on credit, as Secured Party in its sole discretion may determine. Upon any such
sale of any of the Collateral, Secured Party may purchase all or any of the
Collateral being sold, free from any equity or right of redemption. Secured
Party shall apply the proceeds of any such sale and any proceeds received by
Secured Party to the Obligations. If such proceeds are insufficient to pay the
amounts required by law, Debtor shall be liable for any deficiency in the amount
so realized from the Collateral.
(c) In addition, in any such event, Debtor shall promptly upon
demand by Secured Party assemble its Collateral and make it available to Secured
Party at the chief executive office of Debtor. The right of Secured Party under
this Section to have the Collateral assembled and made available to it is of the
essence of this Agreement and Secured Party may, at its election, enforce such
right by an action in equity for specific performance.
(d) Debtor, to the extent that it has any right, title or interest
in any of the Collateral, waives and releases any right to require Secured Party
to collect any of the Obligations
7
from any other of the Collateral under any theory of marshalling of assets, or
otherwise, and specifically authorizes Secured Party to apply any of the
Collateral against any of the Obligations in any manner that Secured Party may
determine.
13. Remedies Cumulative and not Waivable. The rights and remedies of
------------------------------------
Secured Party herein expressly specified are cumulative and not exclusive of
other contractual, common law or statutory rights and remedies which Secured
Party may have. Secured Party shall be under no duty to exercise or withhold
the exercise of any of its rights and remedies provided hereunder or otherwise.
No omission or delay by Secured Party in exercising any such right or remedy
fully shall operate as a waiver, or a partial waiver, of any such right or
remedy; nor shall any single or partial exercise of any such right or remedy
preclude other or further exercise thereof or the exercise of any other right or
remedy.
14. Other Provisions.
-----------------
(a) The provisions of this Agreement may from time to time be
waived, modified or amended only as provided by a writing signed by each of the
parties hereto.
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
(c) The headings of this Agreement are inserted for convenience
only and shall not be deemed to constitute a part hereof.
(d) This Agreement, together with the Promissory Note and the
Stock Purchase Agreement, constitutes the entire understanding of the parties
with respect to the subject matter hereof and supersedes all prior agreements or
understandings with respect thereto in their entirety.
(e) The provisions of this Agreement shall be deemed severable, so
that if any provision hereof is declared invalid under the laws of any state
where it is in effect or of the United States, all other provisions of this
Agreement shall continue in full force and effect.
(f) The security interest granted herein shall terminate when all
the Obligations have been fully paid and performed.
(g) This Agreement shall be construed in accordance with, and
governed by, the laws of the State of Florida as to all matters, including but
not limited to matters of validity, construction, effect and performance.
(h) This Agreement may be signed in any number of counterparts
with the same effect as if the signatures thereto were upon the same instrument.
15. Notices.
--------
(a) Unless expressly provided herein, all notices, claims,
certificates, requests, demands and other communications hereunder shall be in
writing and shall be deemed to be duly given (i) when personally delivered or
(ii) if mailed, registered or certified mail, postage prepaid, return receipt
requested, on the date the return receipt is executed or the letter refused by
the
8
addressee or its agent or (iii) if sent by overnight courier which delivers only
upon the signed receipt of the addressee, on the date the receipt acknowledgment
is executed or refused by the addressee or its agent.
(b) If to Debtor, c/o Charys Holding Company, Inc., located at
0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000, Xxxxxxx, XX 00000, attention Xxxxx X.
Xxx, CEO, with a copy to Xxxxxxx Xxxxxxx, Esq., 000 Xxxxx Xxxxxxxx Xxxxxxx,
Xxxxxxx, XX 00000, Email: xxxxxxxxxxx@xxxxx.xxx, Email:
xxxxxxxx@xxxxxxxxxxxxxxxx.xxx, (office) 000 000 0000, (cell) 000 000 0000, (fax)
000 000 0000, or to such other person or address as Debtor shall furnish by
notice to Secured Party in writing.
(c) If to Secured Party, to Preferred Employers Holdings, Inc.,
located at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx, XX 00000, attention Xxxxxx X.
Xxxxxxxx, Esq., Email: xxxxxxxxx@xxxx.xxx, and to H.I.G. Viasys, Inc., located
at 0000 Xxxxxxxx Xxx Xxxxx, Xxxxx 0000, Xxxxx XX 00000, attention Xxxxxxx
Xxxxxx, or to such other person or address as Secured Party shall furnish by
notice to Debtor in writing.
(d) If to Escrow Agent, Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx
LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Attention: Xxxx X. Xxxxxx,
Esq., Facsimile No.: (000) 000-0000.
16. Waiver of Conflict. Notwithstanding anything contained herein to
------------------
the contrary, Secured Party and Debtor expressly acknowledge that Xxxxx Raysman
Xxxxxxxxx Xxxxxx & Xxxxxxx LLP is presently serving as counsel to Secured Party.
Secured Party and Debtor each hereby expressly waives any conflict of interest
that may arise as a result of the Escrow Agent acting as the Escrow Agent
hereunder and continuing to act as counsel for Secured Party. Without limiting
the foregoing waiver, Secured Party and Debtor agree that neither the Escrow
Agent's services as Escrow Agent hereunder nor any provision hereof, either
express or implied, shall restrict or inhibit the Escrow Agent in any way from
representing Secured Party or any of its affiliates in any action, proceeding,
claim, litigation, dispute, controversy, arbitration, suit or negotiation
arising under this Agreement, or under any other agreement or in any manner or
context whatsoever, whether or not, directly or indirectly, involving Debtor or
any of its affiliates.
[Signature Page Follows]
9
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Security Agreement as of the day and year first above written.
DEBTOR:
CHARYS HOLDING COMPANY, INC.
By:
--------------------------------
Name: Xxxxx X. Xxx, Xx.
Title: Chief Executive Officer
VIASYS NETWORK SERVICES, INC.
By:
----------------------------------
Its (Vice) President
VIASYS SERVICES, INC.
By:
----------------------------------
Its (Vice) President
SECURED PARTY:
NEW VIASYS HOLDINGS, LLC
By:
--------------------------------
Xxx Xxxxxx, Manager
By:
--------------------------------
Xxxxxxx Xxxxxx, Manager
By its execution below, the Escrow Agent agrees to be bound by the terms of this
Agreement:
AGREED TO AND ACCEPTED BY:
XXXXX RAYSMAN XXXXXXXXX XXXXXX & XXXXXXX LLP
By:
----------------------------------
Xxxx X. Xxxxxx, Partner
10
ESCROW AGREEMENT
----------------
This ESCROW AGREEMENT (the "Agreement"), dated as of November 1, 2005,
---------
is by and among CHARYS HOLDING COMPANY, INC., a Delaware corporation located at
0000 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx X000, Xxxxxxx, XX 00000 ("Purchaser"), NEW
---------
VIASYS HOLDINGS, LLC, a Delaware limited liability company located at c/o
Preferred Employers Holdings, Inc. 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx, XX 00000
("Seller") and XXXXX RAYSMAN XXXXXXXXX XXXXXX & XXXXXXX LLP (the "Escrow
------ ------
Agent"), pursuant to that certain Stock Purchase Agreement dated as of November
-----
1, 2005 (the "Stock Purchase Agreement"), by and between Seller and Purchaser.
------------------------
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to Section 1.3.2 of the Stock Purchase Agreement,
Seller and Purchaser have agreed that shares of common stock of Purchaser having
a Market Price of five hundred thousand dollars ($500,000) (the "Escrow Shares")
-------------
shall be retained in escrow with the Escrow Agent, as security for Purchaser's
covenants and other obligations contained in the Stock Purchase Agreement,
including, without limitation, the timely payment in full of the Note; and
WHEREAS, the Escrow Agent has agreed to serve as escrow agent
hereunder in accordance with the terms and conditions set forth herein; and
WHEREAS, capitalized terms used and not otherwise defined herein shall
have the meanings ascribed thereto in the Stock Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. ESCROW DEPOSIT
--------------
1.1 Deposit into Escrow. On the date hereof, Purchaser has
-------------------
deposited with the Escrow Agent stock certificate number _________ for _________
shares of Purchaser, together with stock powers duly executed in blank
sufficient to transfer all the Escrow Shares.
2. DISPOSITION OF ESCROW SHARES
----------------------------
2.1 Disposition of Escrow Shares to Purchaser. Upon receipt
-----------------------------------------
of written notice from Seller that it has received full payment of all amounts
due on the Note, the Escrow Agent shall transfer the Escrow Shares and other
instruments deposited in escrow to Purchaser.
2.2 Disposition of Escrow Shares to Seller. Upon receipt of
---------------------------------------
written notice from Seller that Purchaser has breached any of its covenants and
other obligations contained in the Stock Purchase Agreement, including, without
limitation, the timely payment of any and all amounts due under the Note, Seller
shall send written notice to such effect to the
Escrow Agent and Purchaser specifying in reasonable detail the nature of its
claim (the "Seller's Claim Notice"). The Seller's Claim Notice sent to the
---------------------
Escrow Agent shall further include a statement that a copy of the Seller's Claim
Notice has been sent to Purchaser via the same delivery method used for the
Escrow Agent. The Escrow Agent shall take no action for a period of fifteen
(15) business days (the "Waiting Period") commencing on the date it receives the
--------------
Seller's Claim Notice. Purchaser may dispute the Seller's Claim Notice during
the Waiting Period by sending written notice (the "Purchaser's Dispute Notice")
--------------------------
setting forth in reasonable detail the nature of its dispute with the Seller's
Claim Notice, to both the Escrow Agent and Seller. The Purchaser's Dispute
Notice sent to the Escrow Agent shall further include a statement that a copy of
the Purchaser's Dispute Notice was sent to Seller via the same delivery method
used for the Escrow Agent. If upon the expiration of the Waiting Period, the
Escrow Agent has not received a Purchaser's Dispute Notice, it shall promptly
release to Seller the number of Escrow Shares, having a Market Price (as such
term is defined in the Stock Purchase Agreement) equal to the amount set forth
in the Seller's Claim Notice as determined on the day such Escrow Shares are
being released to Seller. If upon the expiration of the Waiting Period, the
Escrow Agent has received a Purchaser's Dispute Notice, the Escrow Agent shall
continue to hold the Escrow Shares until the dispute is resolved, and the Escrow
Agent receives an order or instructions in accordance with Section 2.3 hereof.
-----------
2.3 Dispute. In the event of any dispute among any of the
-------
parties to this Agreement pursuant to Section 2.1 and Section 2.2 above, the
----------- -----------
Escrow Agent shall not comply with any claims or demands from either Purchaser
or Seller as long as any such dispute may continue, and the Escrow Agent shall
make no delivery or other disposition of any portion of the Escrow Shares until
(a) the Escrow Agent has received an order of an arbitrator designated pursuant
to Section 11.7 of the Stock Purchase Agreement directing disposition of the
Escrow Shares, or (b) the Escrow Agent has received written instructions signed
by both Purchaser and Seller directing disposition of the Escrow Shares. Upon
receipt of the order or instructions referred to in subsections (a) or (b)
herein, the Escrow Agent shall deliver the Escrow Shares, or portion thereof, as
the case may be, in accordance with such order or instructions and shall comply
in all respects with such order or instructions.
2.4 Interpleader. In the event that any dispute should arise
------------
hereunder, or if a proceeding for the determination of a dispute arising under
Section 2.1 or Section 2.2 above is not begun and diligently continued, the
----------- -----------
Escrow Agent shall be entitled, at the expense of Purchaser and Seller, to make
an ex parte application, or bring any appropriate action, for leave to deposit
the Escrow Shares with the clerk of any court of competent jurisdiction seeking
such determination or such declaratory relief as the Escrow Agent shall deem
reasonably necessary under the circumstances, and the parties each hereby
irrevocably consent to the entering of an ex parte order pursuant to all
applicable laws, rules and procedures of the State of New York and such court.
The Escrow Agent shall be reimbursed by Seller and Purchaser, for all of the
Escrow Agent's reasonable costs and expenses of such action or proceeding,
including, without limitation, attorneys' fees and disbursements. Upon making
any such ex parte application, the Escrow Agent shall promptly give notice
thereof to Seller and Purchaser.
2.5 Disposition of the Escrow Shares in Accordance with Joint
---------------------------------------------------------
Instructions or an Order. If at any time the Escrow Agent receives (a) joint
------------------------
instructions signed by both Purchaser and Seller regarding disposition of the
Escrow Shares, or (b) an order of an
2
arbitrator designated in writing jointly by Purchaser and Seller regarding
disposition of the Escrow Shares, the Escrow Agent shall distribute the Escrow
Shares in accordance with, and shall otherwise comply with, such instructions or
order.
3. ESCROW AGENT
------------
3.1 Appointment and Duties. Purchaser and Seller hereby
----------------------
appoint the Escrow Agent to serve hereunder, and the Escrow Agent hereby accepts
such appointment and agrees to perform, in accordance with the terms and
provisions of this Agreement, all duties which are expressly imposed upon the
Escrow Agent by this Agreement.
3.2 Compensation. The Escrow Agent shall receive no
------------
additional compensation for serving as escrow agent hereunder, except (a) as set
forth in Section 3.3 below, (b) if a dispute arises, or threatens to arise, as
-----------
to the Escrow Agent's duties or obligations hereunder, or (c) if a dispute
arises relating to this Agreement. In the event of the occurrence of a dispute
under subsections (b) or (c) above, the Escrow Agent shall be entitled to
reimbursement of all of its reasonable costs and expenses, including consulting
with outside counsel.
3.3 Indemnification. Both Seller and Purchaser, jointly and
---------------
severally, agree to indemnify and hold the Escrow Agent and its directors,
officers, partners, agents and employees (collectively, the "Indemnitees")
-----------
harmless from and against any and all claims, liabilities, obligations, losses,
damages, fines, encumbrances, penalties, costs and expenses, including
reasonable out-of-pocket and incidental expenses and reasonable legal fees and
expenses (including, without limitation, the fees and expenses of outside
counsel) ("Losses") that may be imposed on, incurred by or asserted against the
------
Indemnitees or any of them (i) for following any instructions or other
directions upon which they are authorized to rely pursuant to the terms of this
Agreement or (ii) in connection with or arising out of the Escrow Agent's
performance under this Agreement in accordance with the terms hereof, provided,
with respect to either (i) or (ii), that the Losses shall not have resulted from
the Indemnitees' or any Indemnitee's gross negligence, bad faith or willful
misconduct. Anything in this Agreement to the contrary notwithstanding, in no
event shall the Escrow Agent be liable for special, indirect or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if the Escrow Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action. Promptly upon the receipt
by the Escrow Agent of notice of any demand or claim or the commencement of any
action, suit or proceeding, the Escrow Agent shall, if a claim in respect
thereof is to be made against any of the other parties hereto, notify such other
party or parties in writing. Any Losses, as between Purchaser and Seller shall
be borne one-half by Purchaser and one-half by Seller; provided, that any Losses
incurred by the Escrow Agent as a result of participating in any proceeding
brought by Purchaser against Seller, or by Seller against Purchaser, shall be
paid by the substantially losing party or the party against which an order or
award is rendered in such proceeding, as the case may be. Nothing in this
Section 3.3 shall constitute a waiver of any claim which Purchaser, on the one
hand, or Seller, on the other hand, may have against the other party hereto for
contribution arising from its joint obligation with the other to hold the Escrow
Agent harmless hereunder.
3.4 Resignation. The Escrow Agent may resign at any time
-----------
upon giving the other parties hereto thirty (30) days' prior written notice to
that effect. In such event,
3
the successor escrow agent for purposes hereof ("Successor") shall be such
---------
person, firm or corporation on which Purchaser and Seller shall agree. As soon
as practicable after its resignation, the Escrow Agent shall turn over to the
Successor so appointed all monies, property and records held hereunder upon
presentation of the document appointing the Successor and the Successor's
acceptance of such appointment and of the terms and conditions of this
Agreement. It is understood and agreed that no resignation by the Escrow Agent
shall be effective until a Successor is appointed and expressly consents to the
terms and conditions of this Agreement; provided, that if no Successor is
appointed and acting hereunder within thirty (30) days after the Escrow Agent
gives notice of its resignation, the Escrow Agent shall be entitled to
interplead the Escrow Shares in accordance with Section 2.4 hereof. Upon the
-----------
Escrow Agent's release of all monies, property and records held hereunder to a
Successor or to a court of competent jurisdiction in accordance with Section 2.4
-----------
above, the Escrow Agent's duties and obligations under this Agreement shall be
terminated and the Escrow Agent shall be deemed to have been released from any
and all claims relating to its performance hereunder.
3.5 Waiver of Conflict. Notwithstanding anything contained
------------------
herein to the contrary, Seller and Purchaser expressly acknowledge that Xxxxx
Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP is presently serving as counsel to
Seller. Seller and Purchaser each hereby expressly waives any conflict of
interest that may arise as a result of the Escrow Agent acting as the Escrow
Agent hereunder and continuing to act as counsel for Seller. Without limiting
the foregoing waiver, Purchaser and Seller agree that neither the Escrow Agent's
services as Escrow Agent hereunder nor any provision hereof, either express or
implied, shall restrict or inhibit the Escrow Agent in any way from representing
Seller or any of its affiliates in any action, proceeding, claim, litigation,
dispute, controversy, arbitration, suit or negotiation arising under this
Agreement, the Stock Purchase Agreement or the transactions contemplated
thereby, or under any other agreement or in any manner or context whatsoever,
whether or not, directly or indirectly, involving Purchaser or any of its
affiliates.
4. LIMITED OBLIGATIONS AND LIABILITIES
-----------------------------------
4.1 Limitations.
-----------
(a) It is expressly understood and agreed by the parties
that (i) the duties of the Escrow Agent, as herein specifically provided, are
purely ministerial in nature; (ii) the Escrow Agent shall not have any duty to
deposit the Escrow Shares except as provided herein, (iii) the Escrow Agent
shall not be responsible or liable in any manner whatsoever for, or have any
duty to inquire into, the sufficiency, correctness, genuineness or validity of
the notices it receives hereunder, or the identity, authority or rights of any
of the parties; (iv) the Escrow Agent shall have no duties or responsibilities
in connection with the Escrow Shares, other than those specifically set forth in
this Agreement and applicable law; (v) the Escrow Agent shall not incur any
liability in acting upon any signature, written notice, request, waiver,
consent, receipt, or any other paper or document believed by the Escrow Agent to
be genuine; (vi) the Escrow Agent may assume that any person purporting to have
authority to give notices on behalf of any of the parties in accordance with the
provisions hereof has been duly authorized to do so; (vii) the Escrow Agent
shall incur no liability whatsoever except for such resulting from its willful
misconduct or gross negligence, as long as the Escrow Agent has acted in good
faith in the performance of its duties hereunder or in accordance with the
advice or opinion of any counsel
4
retained by it; and (viii) upon the Escrow Agent's performance of its
obligations under Article 2 hereof, the Escrow Agent shall be relieved of all
---------
liability, responsibility and obligation with respect to the Escrow Shares or
arising out of or under this Agreement.
(b) The Escrow Agent shall have the authority to
distribute the Escrow Shares in accordance with Article 2 hereof, without the
---------
obligation to make any further inquiries of Purchaser and/or Seller. The Escrow
Agent may consult with outside counsel, accountants and other skilled persons to
be selected and retained by it (including any partner or associate of Escrow
Agent if Escrow Agent is a law firm) and the advice or any opinion of counsel
shall be full and complete authorization and protection in respect of any action
taken or omitted by it hereunder in good faith and in accordance with such
advice or opinion of counsel.
(c) The Escrow Agent shall not be under any obligation
to take any legal action in connection with this Agreement or towards its
enforcement or performance, or to appear in, prosecute or defend any action or
legal proceeding, or to file any return, or pay or withhold any income or other
tax payable with respect to the Escrow Shares or the distribution thereof, any
payment of or in respect of which shall constitute a Loss under Section 3.3
-----------
above, and the parties agree to provide to the Escrow Agent such information and
documentation as the Escrow Agent may reasonably request in connection
therewith.
(d) The Escrow Agent does not have any interest in the
Escrow Shares deposited hereunder but is serving as Escrow Agent only and having
only possession thereof.
(e) None of the provisions of this Agreement shall
require the Escrow Agent to expend or risk its own funds or otherwise to incur
any liability, financial or otherwise, in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not assured to it.
4.2 Collateral Agreements. The Escrow Agent shall not be
---------------------
bound in any way by any contract or agreement (other than any amendments to this
Agreement) between the other parties hereto, regardless of whether the Escrow
Agent has knowledge of any such contract or agreement or of its terms or
conditions.
5. TERMINATION
-----------
5.1 Termination. This Agreement shall be terminated only (a)
-----------
upon distribution of all the Escrow Shares in accordance with the terms hereof,
(b) by written mutual consent signed by all of the parties hereto, (c) upon
deposit of the Escrow Shares with a court of competent jurisdiction in
accordance with Section 2.4 hereof, or (d) upon the Escrow Agent's release of
-----------
the Escrow Shares to a Successor. The provisions of Sections 2.4, 3.3, 3.5,
--------------
4.1(d) and 6.1 shall survive any termination of this Agreement and the
--------------
resignation or removal of the Escrow Agent for any reason.
5
6. MISCELLANEOUS PROVISIONS
------------------------
6.1 Applicable Law. This Agreement shall be governed by and
--------------
construed and enforced in accordance with the laws of the State of New York,
without regard to its conflicts of law rules.
6.2 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties hereto in respect of the subject matter contained
herein. There are no restrictions, promises, warranties, conveyances or
undertakings other than those expressly set forth herein.
6.3 Waivers and Amendments; Non-Contractual Remedies;
-------------------------------------------------
Preservation of Remedies. This Agreement may be amended, superseded, cancelled,
------------------------
renewed or extended only by a written instrument signed by Purchaser, Seller and
the Escrow Agent. The provisions hereof may be waived only in writing by the
party to be charged therewith. No delay on the part of any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any waiver on the part of any party of any such right, power or privilege,
nor any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such right,
power or privilege.
6.4 Assignment.
----------
(a) This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors, heirs and
permitted assigns; provided, however, that no party may assign its rights and
obligations hereunder without the prior written consent of the others; except
that in the event that a Successor is appointed pursuant to Section 3.4 hereof,
-----------
upon written instructions by Seller and Purchaser, the Escrow Agent shall assign
its rights, interests and obligations hereunder to such Successor.
(b) Any partnership or other similar entity into which
the Escrow Agent may be merged or converted or with which it may be
consolidated, or any partnership, corporation or other similar entity resulting
from any merger, conversion or consolidation to which the Escrow Agent shall be
a party, or any partnership, corporation or other similar entity succeeding to
the business of the Escrow Agent shall be the successor of the Escrow Agent
hereunder without the execution or filing of any paper with any party hereto or
any further act on the part of any of the parties hereto except where an
instrument of transfer or assignment is required by law to effect such
succession, anything herein to the contrary notwithstanding.
6.5 Expenses. Except as otherwise expressly provided herein,
--------
each party shall bear its own expenses incident to this Agreement and the
transactions contemplated hereby, including without limitation, all fees of
counsel, accountants and consultants.
6
6.6 Notices.
-------
(a) All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and shall be
delivered personally by hand, by facsimile, by email or by nationally recognized
private courier or mailed by registered or certified mail postage prepaid, as
follows:
(i) if to Seller to:
Preferred Employers Holdings, Inc.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attn.: Xxxxxx X. Xxxxxxxx, Esq.
Email: xxxxxxxxx@xxxx.xxx
and to:
H.I.G. Viasys, Inc.
0000 Xxxxxxxx Xxx Xxxxx
Xxxxx 0000
Xxxxx, XX 00000
Attn.: Xxxxxxx Xxxxxx
(ii) if to Purchaser to:
Charys Holding Company, Inc.
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx X000
Xxxxxxx, XX 00000
Attn.: Xxxxx X. Xxx, CEO
with a copy to:
Xxxxxxx Xxxxxxx, Esq.
000 Xxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
Email: xxxxxxxxxxx@xxxxx.xxx
Email: xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
(Office) (000) 000 0000
(Cell) (000) 000 0000
(Fax) (000) 000 0000
(iii) if to the Escrow Agent to:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
7
Facsimile: (000) 000-0000
Attn.: Xxxx X. Xxxxxx, Esq.
(b) Each such notice or other communication shall be
effective (i) if given by facsimile, when such facsimile is transmitted to the
facsimile number specified in Section 6.6(a) (with confirmation of transmission)
--------------
or (ii) if given by any other means, when received or rejected at the address
and/or email address specified in Section 6.6(a). Any party by notice given in
--------------
accordance with this Section 6.6 to the other party may designate another
-----------
address (or facsimile number) or person for receipt of notices hereunder.
Notices by a party may be given by counsel to such party.
6.7 Headings. The headings of the Sections of this Agreement
--------
are inserted for convenience only and shall not constitute a part hereof.
6.8 Counterparts; Facsimile Signatures. This Agreement may
----------------------------------
be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. The parties agree that they may rely upon facsimile signatures
hereto and to any amendment, documents, agreements, or instruments delivered in
connection herewith.
[Remainder of Page Intentionally Left Blank]
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Purchaser
---------
CHARYS HOLDING COMPANY, INC.
By:
-------------------------------------
Name: Xxxxx X. Xxx, Xx.
Title: Chief Executive Officer
Seller
------
NEW VIASYS HOLDINGS, LLC
By:
-------------------------------------
Xxx Xxxxxx, Manager
By:
-------------------------------------
Xxxxxxx Xxxxxx, Manager
Escrow Agent
------------
XXXXX RAYSMAN XXXXXXXXX XXXXXX & XXXXXXX LLP
By:
-----------------------------------
Xxxx X. Xxxxxx, Esq.
Partner
9
SCHEDULE 1.5 EARN OUT AGREEMENT
---
As additional consideration for the Seller under the terms of the Stock
Purchase Agreement, dated as of October 31, 2005, Seller shall receive, during
the period hereafter set forth, that amount of dollars calculated as follows:
The earn out will be calculated each year, during the three year period
ending April 30, 2008. The maximum aggregated amount to be paid to Seller,
during the three years, shall be two million dollars, calculated each year and
payable thirty days after completion of the annual audit of the Companies.
Companies shall be defined as and or other such company or
companies as shall be performing the activities presently being conducted by the
Companies.
Each year a calculation shall be made, using revenue growth and targeted
EBITDA. Revenue growth is targeted at 10% per annum and is weighted at 40% and
EBITDA is targeted at 8% per annum and is weighted 60%. If actual revenue
growth is less then the 10% target per year, the revenue growth credit shall be
determined by the percentage of actual revenue growth to the targeted growth of
10%. Likewise, if actual EBITDA is less than the 8% target per year, the EBITDA
credit shall be determined by the actual EBITDA percentage to the targeted 8%.
As an example, if actual revenue growth in year-1 is 8%, the revenue growth
credit would be 32% (8%/10% times 40%). Furthermore, if actual EBITDA is in
year-1 is 6%, the EBITDA target credit would be 45% (6%/8% times 60%).
The maximum amount to be paid in year one is $667,000; in year two
$667,000, plus any amount not paid in year one, and in year three $667,000 plus
any amounts not paid in years one and two. In the above example, the additional
consideration due for year-1 would be computed by multiplying the annual maximum
amount of $667,000 by the sum of the revenue growth credit (32%) and the EBITDA
target credit (45%) , or $513,590 (32% + 45% times $667,000). Payments shall be
in cash or stock, at the option of CHARYS. If paid in stock of CHARYS, the
stock shall be valued (if fully saleable) at the average daily price for the 30
days prior to the date of determination; (if not fully saleable, the stock shall
be valued at 80% of such average price.
The following table sets forth an example of the assumed earn out payments.
Schedule 2.1(a)
Registered to do business in the following states:
Viasys Services, Inc.
AL
AK
FL
GA
KY
LA
MD
MS
NC
OR
SC
TN
TX
VA
Viasys Network Services Inc.
FL
Note: The Company and Seller were unable to obtain copies of the state tax
returns for the year ended October 31, 2000 as well as for prior years for
Transportation Safety Contractors, Inc. ("TSC"), Georgia Electric Company
("GEC") and Able Telecommunications & Power, Inc. ("ATP"). Based upon
correspondence from certain states including Alabama (for GEC), Florida (for ATP
and TSC) and North Carolina (for GEC), certain Company state income tax returns
for years ending on October 31, 2000 and prior were not filed.
Schedule 2.2
The subsidiaries of New Viasys Holdings, LLC are Viasys Services, Inc. and
Viasys Network Services, Inc. Neither Viasys Services, Inc. nor Viasys Network
Services, Inc. have any subsidiaries.
Schedule 2.3
Authorized Issued Outstanding
Shares Shares Shares
---------- ------ -----------
Viasys Services, Inc. 15,000 4,400 4,400
Viasys Network Services, Inc. 10,000 100 100
Schedule 2.5
Seller is party to a certain Security Agreement between Seller and Xxxxxxx Xxxxx
Business Financial Services, Inc. ("MLBFS") dated August 28, 2002 which secures
payment and performance of the Company's obligations to MLBFS. Collateral, as
defined in the Security Agreement, is defined as:
all Accounts, Chattel Paper, Contract Rights, Inventory, Equipment,
Fixtures, General Intangibles, Deposit Accounts, Documents,
Instruments, Financial Assets and Investment Property of Grantor,
howsoever arising, whether now owned or existing or hereafter acquired
or arising, and wherever located; together with all parts thereof
(including spare parts), all accessories and accessions thereto, all
books and records (including computer records) directly related
thereto, all proceeds thereof (including, without limitation, proceeds
in the form of Accounts and insurance proceeds), and the additional
collateral described in Section 7 (b) hereof
A true and accurate copy of the Security Agreement, along with the related
agreements, has been provided by Seller to Buyer.
Schedule 2.8
WCMA Loan and Security Agreement No. 2BN07-936 dated August 28, 2002 between
Transportation Safety Contractors, Inc. (n/k/a Viasys Services, Inc.) and
Xxxxxxx Xxxxx Business Financial Services, Inc. ("MLBFS") requires prior written
consent of MLBFS for any change in ownership. Such written consent has not been
received.
Security Agreement dated August 28, 2002 between MLBFS and Seller dated August
28, 2002 requires prior written consent of MLBFS for any change in ownership.
Such written consent has not been received.
WCMA Reducing Revolver Loan Agreement No. 2BN07-937 dated September 26, 2002
between Transportation Safety Contractors, Inc. (n/k/a Viasys Services, Inc.)
and Xxxxxxx Xxxxx Business Financial Services, Inc. ("MLBFS") requires prior
written consent of MLBFS for any change in ownership. Such written consent has
not been received.
WCMA Reducing Revolver Loan Agreement No. 2BN07-938 dated September 26, 2002
between Transportation Safety Contractors, Inc. (n/k/a Viasys Services, Inc.)
and Xxxxxxx Xxxxx Business Financial Services, Inc. ("MLBFS") requires prior
written consent of MLBFS for any change in ownership. Such written consent has
not been received.
Master Lease Agreement No. AFI0280 between Applied Financial, Inc. and Viasys
Utility Services, Inc. (n/k/a Viasys Services, Inc.) dated August 29, 2002 lists
as an event of default "a substantial change in ownership of the outstanding
stock of the Lessee".
Qualifications with State Departments of Transportation - the change in control
will require the filing of new pre-qualification packages with certain State
Departments of Transportation.
Certain leases to which the Company is a party, which are not Material Contracts
as defined in the Purchase Agreement, may require written notification and
consent upon the change in control of the Company.
Viasys Services, Inc.
(a wholly owned subsidiary of
New Viasys Holdings, LLC)
Financial Statements
as of and for the Year Ended October 31, 2004
and Independent Auditors' Report
DELOITTE.
DELOITTE & TOUCHE LLP
Certified Public Accountants
Xxxxx 0000
000 X. Xxxxxx Xxx.
Xxxxxxx, XX 00000-0000
XXX
Tel: x0 000 000 0000
Fax: x0 000 000 0000
xxx.xxxxxxxx.xxx
INDEPENDENT AUDITORS' REPORT
To the Board of Directors of
Viasys Services, Inc.:
We have audited the accompanying balance sheet of Viasys Services, Inc. ("the
Company"), a wholly owned subsidiary of New Viasys Holdings, LLC, as of October
31, 2004 and the related statements of operations, changes in stockholder's
equity, and cash flows for the year then ended. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audit.
We conducted our audit in accordance with auditing standards generally accepted
in the United States of America. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provides a
reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Viasys Services, Inc., a wholly
owned subsidiary of New Viasys Holdings, LLC, as of October 31, 2004, and the
results of its operations and its cash flows for the year then ended in
conformity with accounting principles generally accepted in the United States of
America.
/s/ Deloitte & Touche LLP
February 8, 2005
VIASYS SERVICES, INC.
(a wholly owned subsidiary of New Viasys Holdings, LLC)
BALANCE SHEET
OCTOBER 31 ,2004
----------------------------------------------------------------
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 3,213,294
Current contract receivables - net 9,829,247
Costs and estimated earnings in excess of
xxxxxxxx on uncompleted contracts 10.033,822
Prepaid expenses and other assets 659,464
Deferred income tax assets - current 1,735,935
-------------
Total current assets 25,471,762
PROPERTY AND EQUIPMENT- Net 5,179,573
DEFERRED INCOME TAX ASSETS- Non-current 900,372
-------------
TOTAL ASSETS $ 31,551,707
=============
LIABILITIES AND STOCKHOLDER'S EQUITY
CURRENT LIABILITIES:
Accounts payable $ 7,678,778
Long-term debt - current maturities 2,239,500
Xxxxxxxx in excess of costs and estimated
earnings on uncompleted contracts 402,565
Other accrued liabilities 5,018,017
Reserve for contract losses 552,761
-------------
Total current liabilities 15,891,621
NOTE PAYABLE AND ACCRUED INTEREST- Parent company 4,160,738
OTHER LIABILITIES 438,617
LONG-TERM DEBT 3,957,150
-------------
Total liabilities 24,448,126
-------------
COMMITMENTS AND CONTINGENCIES
STOCKHOLDER'S EQUITY:
Common stock - $1 par value, 15,000 shares
authorized, 4,210 shares issued and outstanding 4,210
Additional paid in capital 20,830,735
Accumulated deficit (13,731,364)
-------------
Total stockholder's equity 7,103,581
-------------
TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY $ 31,551,707
=============
See notes to financial statements.
- 2 -
VIASYS SERVICES, INC.
(a wholly owned subsidiary of New Viasys Holdings, LLC)
STATEMENT OF OPERATIONS
YEAR ENDED OCTOBER 31, 2004
------------------------------------------------------------
CONTRACT REVENUE EARNED $55,983,198
COST OF REVENUE 54,040,409
------------
Gross profit 1,942,789
------------
OPERATING EXPENSES:
Depreciation and amortization 1,862.715
Selling, genera! and administrative expenses 4,252,978
Gain on disposition of assets - net (674,392)
------------
Total operating expenses 5,441,301
------------
LOSS FROM OPERATIONS (3,498,512)
------------
OTHER EXPENSE:
Interest expense 559,831
Financing costs 117,813
Other - net 20,349
------------
Total other expense 697,993
------------
LOSS BEFORE BENEFIT FOR INCOME TAXES (4,196,505)
BENEFIT FROM INCOME TAXES 1,547,989
------------
NET LOSS ${2,648,516)
============
See notes to financial statements.
- 3 -
VIASYS SERVICES, INC.
(A WHOLLY OWNED SUBSIDIARY OF NEW VIASYS HOLDINGS, LLC)
STATEMENT OF CHANGES IN STOCKHOLDER'S
EQUITY YEAR ENDED OCTOBER 31, 2004
---------------------------------------------------------------------------------------
Additional
Common Paid-in Accumulated
Stock Capital Deficit Total
BALANCE AT BEGINNING OF YEAR,
as previously reported $ 3,750 $ 6,550,655 $ (2,951,861) $ 3,602,544
Equity accounts of affiliates merged
into Company 460 14,280,080 (8,130,987) 6,149,553
------- ----------- ------------- ------------
Balance at beginning of year,
as restated 4,210 20,830,735 (11,082,848) 9,752,097
Net loss (2,648,516) (2,648,516)
------- ----------- ------------- ------------
BALANCE AT END OF YEAR $ 4,210 $20,830,735 $(13,731,364) $ 7,103,581
======= =========== ============= ============
- 4 -
VIASYS SERVICES, INC.
(a wholly owned subsidiary of New Viasys Holdings, LLC)
STATEMENT OF CASH FLOWS
YEAR ENDED OCTOBER 31 , 2004
-------------------------------------------------------------------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net loss $(2,648,516)
Adjustments to reconcile net loss to net cash
provided by operating activities:
Depreciation and amortization 1,862,715
Gain on disposition of assets - (674,392)
Change in deferred taxes (1,105,522)
Changes in operating assets and liabilities:
Contract receivables - net 5,712,935
Costs and estimated earnings in excess of
xxxxxxxx on uncompleted contracts 857,244
Prepaid expenses and other assets (32,506)
Accounts payable 746,456
Xxxxxxxx in excess of costs and estimated
earnings on uncompleted contracts 96,826
Other accrued liabilities 861,064
Reserve for contract losses (917,293)
------------
Net cash provided by operating activities 4,759,011
------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (241,283)
Proceeds from disposition of property and equipment 1,107,530
------------
Net cash provided by investing activities 866,247
------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayments on long-term debt (1,105,653)
Payments to parent company (3,521,397)
Net borrowings under lines of credit 1,180,913
------------
Net cash used in financing activities (3,446,137)
------------
NET INCREASE IN CASH AND CASH EQUIVALENTS 2,179,121
CASH AND CASH EQUIVALENTS- BEGINNING OF YEAR 1,034,173
------------
CASH AND CASH EQUIVALENTS- END OF YEAR $ 3,213,294
============
See notes to financial statements.
- 5 -
VIASYS SERVICES, INC.
(A WHOLLY OWNED SUBSIDIARY OF NEW VIASYS HOLDINGS, LLC)
NOTES TO FINANCIAL STATEMENTS
OCTOBER 31, 2004
--------------------------------------------------------------------------------
1. NATURE OF OPERATIONS AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
DESCRIPTION OF BUSINESS-Viasys Services, Inc. (the "Company"), a Florida
corporation, is a wholly owned subsidiary of New Viasys Holdings, LLC
("Viasys"). The Company's principal business activities include (1)
furnish, design, install and maintain both wired and wireless communication
networks and infrastructure (2) installation of intelligent transportation
systems (ITS), (3) providing industrial maintenance services, and (4)
providing underground utility construction services. Services are performed
under both fixed-price construction and time and material contracts
primarily in the Southeastern region of the United States.
MERGERS-Viasys Utility Services, Inc. ("VUS") was merged into the Company
as of June 1, 2004. Georgia Electric Company ("GEC") and Viasys Management
Company, Inc. ("VMC") were merged into the Company as of October 29,2004.
VUS, GEC and VMC were all sister companies of the Company. The Company
accounted for the transfer of net assets as a result of the merger under
the pooling method in accordance with Statement of Financial Accounting
Standards No. 141, Business Combinations, as these companies were under
common ownership. The results of operations of VUS, GEC and VMC for the
year are included in these financial statements. The Company's assets and
liabilities include all assets and liabilities of VUS, GEC, and VMC. The
Company's beginning equity was restated to include the equity accounts of
these merged companies. The effects of intercompany transactions were
eliminated upon consolidation of the merged companies.
USE OF ESTIMATES-The preparation of financial statements in conformity with
accounting principles generally accepted in the United States of America
requires management to make estimates and assumptions that affect the
reported amounts of assets and liabilities and disclosure of contingent
assets and liabilities at the date of the financial statements and the
reported amounts of revenue and expenses during the reporting period.
Actual results could differ from those estimates.
REVENUE AND COST RECOGNITION-Revenue from fixed-price and modified
fixed-price construction contracts are recognized using the
percentage-of-completion method, measured by the percentage of costs
incurred to date to estimated total costs for the contract. This method is
used because management considers expended costs to be the best available
measure of progress on these contracts.
Revenue from time-and-material contracts is recognized as the work is
performed.
Contract costs include all direct material and labor costs and those
indirect costs related to contract performance, such as indirect labor,
supplies, tools, and repairs. Provisions for estimated losses on
uncompleted contracts are recognized in the period that such losses are
determined. Changes in job performance, job conditions, and estimated
profitability, including those arising from contract penalty and warranty
provisions, and final contract settlements may result in revisions to costs
and revenue and are recognized in the period in which their realization is
determined. An amount equal to contract costs attributable to claims is
included in revenue when realization is probable and the amount can be
reliably estimated.
- 6 -
The asset, "Costs and estimated earnings in excess of xxxxxxxx on
uncompleted contracts," represents revenue recognized in excess of amounts
billed. The liability, "Xxxxxxxx in excess of costs and estimated earnings
on uncompleted contracts," represents xxxxxxxx in excess of revenue
recognized.
CONTRACT RECEIVABLES AND ALLOWANCE FOR DOUBTFUL ACCOUNTS-Contract
receivables include amounts invoiced under fixed price contracts and
time-and-material contracts. In addition, revenue earned but not yet billed
under time-and-material contracts is included as contract receivables.
Current year income is charged in amounts sufficient to maintain the
allowance for doubtful accounts at a level management considers adequate to
cover potential losses.
PROPERTY AND EQUIPMENT-Property and equipment are recorded at cost, net of
accumulated depreciation and amortization. Depreciation and amortization
are provided principally on the straight-line method over the estimated
useful lives of the assets. Following are the estimated useful lives used
by asset class:
ASSET CLASS ESTIMATED USEFUL LIVES
(IN YEARS)
Buildings and improvements 20
Shop and construction equipment 5-7
Office furniture and equipment 3-7
Improvements to leased properties are amortized over their estimated useful
lives or the remaining lease period, whichever is shorter.
LONG-LIVED ASSETS-Long-lived assets to be held and used are reviewed for
impairment whenever events or changes in circumstances indicate that the
related carrying amount may not be recoverable. When required, impairment
losses on assets to be held and used are recognized based on the excess of
the asset's carrying amount over the fair value of the asset. Long-lived
assets to be disposed of are reported at the lower of carrying amount or
fair value, less costs to sell.
INCOME TAXES-The provision for income taxes is based on taxes payable or
refundable for the current year and deferred taxes on temporary differences
between the amount of taxable income and pretax financial income and
between the tax bases of assets and liabilities and their reported amounts
in the financial statements. Deferred tax assets and liabilities are
included in financial statements at currently enacted income tax rates
applicable to the period in which the deferred tax assets and liabilities
are expected to be realized or settled. As changes in tax laws or rates are
enacted, deferred tax assets and liabilities are adjusted through the
provision for income taxes.
NEW ACCOUNTING PRONOUNCEMENTS-The Financial Accounting Standards Board and
other entities issued new or modifications to, or interpretations of,
existing accounting guidance during 2004. The Company has carefully
considered the new pronouncements that altered accounting principles
generally accepted in the United States of America, and other than as
disclosed in these notes to the financial statements, does not believe that
any other new or modified principles will have a material impact on the
reported financial position or operations of the Company in the near term.
- 7 -
2. CASH AND CASH EQUIVALENTS
The Company considers all investments with an original maturity of three
months or less on their acquisition date to be cash equivalents. Accounts
at each institution are insured by the Federal Deposit Insurance
Corporation up to $100,000. As of October 31, 2004, the Company's uninsured
bank balances totaled $3,103,881. "The Company's practice is to invest its
cash with financial institutions that have acceptable credit ratings to
minimize its risk.
3. CONTRACT RECEIVABLES
As of October 31,2004, contract receivables balances included the
following:
=
Contract receivables:
Billed:
Completed contracts and time and
material contracts $4,259,778
Contracts in progress 3,440,581
Retainage 2,235,114
-----------
9,935,473
Less allowance for doubtful accounts (106,226)
-----------
$9,829,247
===========
Following is an analysis of the changes in the allowance for doubtful
accounts for the year ended October 31, 2004:
Balance at beginning of year $162,703
Provisions charged to operations -
Direct write-offs - net of recoveries (56,477)
---------
Balance at end of year $106,226
=========
4. COSTS AND ESTIMATED EARNINGS ON UNCOMPLETED CONTRACTS
As of October 31, 2004, costs and estimated earnings on uncompleted
contracts consisted of the following:
Costs incurred on uncompleted contracts $ 74,311,932
Estimated earnings 2,433,599
-------------
76,745,531
Plus stored materials 7,890,958
-------------
84,636,489
Less xxxxxxxx to date (75,005,232)
-------------
$ 9,631,257
=============
- 8 -
The above amounts are included in the accompanying balance sheet under the
following captions:
Costs and estimated earnings in excess
of xxxxxxxx on uncompleted contracts $10,033,822
Xxxxxxxx in excess of costs and estimated
earnings on uncompleted contracts (402,565)
------------
$ 9,631,257
============
5. PROPERTY AND EQUIPMENT
Property and equipment included the following at October 31, 2004:
Cost:
Land $ 692,000
Buildings and improvements 1,094,486
Shop and construction equipment 15,321,639
Office furniture and equipment 586,258
-------------
17,694,383
Accumulated depreciation (12,514,810)
-------------
Property and equipment - net $ 5,179,573
=============
Assets recorded under capital leases are included in property and equipment
as follows: cost -$4,140,159; accumulated depreciation - $1,502,514; net
book value - $2,637,645.
6. ACCOUNTS PAYABLE
Accounts payable include amounts due to subcontractors, totaling
approximately $426,338 at October 31, 2004, which have been retained
pending completion and customer acceptance of jobs,
7. OTHER ACCRUED LIABILITIES
Other accrued liabilities consisted of the following at October 31,2004:
Accrued salaries and wages $ 753,959
Insurance reserves 2,333,153
Accrued taxes (payroll, sales and use, income, etc.) 233,706
Accrued job costs 827,757
Other accrued liabilities 869,442
----------
$5,018,017
==========
- 9 -
8. LONG-TERM DEBT
Following is the Company's long-term debt at October 31, 2004:
Lines of credit $3,470,029
Note payable, collateralized by certain equipment, due in
monthly installments of $335, interest at 10.25%, through
its maturity of September 2006 6,660
Note payable, collateralized by certain equipment, due in
monthly installments of $6,491, interest at 10.5%, through
its maturity of March 2008 227,362
Note payable, collateralized by certain equipment, due in
monthly installments (currently $14,776 decreasing over
the term of the loan), interest at 11.7%, through its maturity
of August 2005 51,150
Capital lease obligations with interest ranging from
3 .26% to 15.25% at October 31, 2004 2,441,449
----------
6,196,650
Less current portion 2,239,500
----------
$3,957,150
==========
Future principal payments for the years ending October 31 are as follows:
CAPITAL
YEAR ENDING OCTOBER 31, DEBT LEASES TOTAL
2005 $l,l97,l12 $1,042,388 $2,239,500
2006 2,450,420 846,932 3,297,352
2007 69,895 373,413 443,308
2008 37,774 138,523 176,297
2009 - 40,193 40,193
---------- ---------- ----------
$3,755,201 $2,441,449 $6,196,650
========== ========== ==========
CREDIT AGREEMENTS-The Company has in place three credit agreements with a
financial institution that provide for borrowings on a revolving credit
basis.
The first facility provided for borrowings (the "revolver") of up to
$5,000,000 with a maturity of November 30, 2004. Effective December 23,
2004, the facility was modified to provide a maximum borrowing amount equal
to $3,600,000. The maximum borrowing amount is reduced to the following
amounts as follows: March 1, 2005 - $2,900,000, June 1, 2005 - $2,400,000
and September 1, 2005 -$1,900,000. The maturity date is November 30, 2005.
Interest is calculated at one-month LIBOR plus 2.8%. Borrowings under the
revolver totaled $2,101,377 as of October 31, 2004. The interest rate at
October 31, 2004 was 4.73%. In addition, irrevocable letters of credit
totaling $2,440,000 were issued and secured by the revolver. The revolver
is coliateralized by substantially all of the assets of the Company, and is
also coliateralized by the assets of, and guaranteed by, Viasys, The
Company pays annual fees for this facility and is required to meet certain
covenants.
- 10 -
The second and third facilities are reducing revolvers collateralized by
the Company's real property. The initial availability of the reducing
revolvers totaled $1,600,000. Interest is calculated at one-month LIBOR
plus 2.8%. The available lines of credits are reduced each month by the
amount that would be payable on account of principal if the reducing
revolvers were a conventional term loan amortized over fifteen years.
Accordingly, the maximum borrowing amount is reduced by $8,889 per month
beginning in November 2002 through the facilities' expiration on November
30, 2005. The available amount and borrowings under these facilities as of
October 31, 2004 totaled $1,389,553 and $1,368,652, respectively. The
interest rate as of October 31, 2004 was 4.73%, The Company pays annual
fees for these facilities and is required to meet certain covenants.
9. INCOME TAXES
The benefit from income taxes for the year ended October 31, 2004 consists
of the following:
FEDERAL STATE TOTAL
---------- -------- ----------
Current $ 442,467 $ - $ 442,467
Deferred 860,845 244,677 1,105,522
---------- -------- ----------
Total $1,303,312 $244,677 $1,547,989
========== ======== ==========
The reported benefit from income taxes differs from that computed by
multiplying the loss before provision for income taxes by the expected
federal income tax rate of 34% due to state income taxes, net of federal
benefit, and certain expenses that are not deductible for income tax
purposes.
Deferred income taxes reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial
reporting purposes and the amounts used for tax purposes. Major components
of deferred tax assets and liabilities at October 31, 2004 are as follows:
Deferred tax assets:
Allowance for doubtful accounts $ 40,324
Stored materials 748,852
Insurance reserves 885,665
Accrued liabilities and other 61,095
Net operating loss carryforwards 2,045,292
-----------
3,781,228
Deferred tax liabilities - property and equipment 1,144,921
-----------
Net deferred tax asset $ 2,636,307
===========
Deferred taxes are presented in the accompanying balance sheet as:
Deferred income tax assets - current $ 1,735,935
Deferred income tax assets - non-current 900,372
-----------
$ 2,636,307
===========
In assessing the realizability of deferred tax assets, management considers
whether it is more likely than not that some portion or all of the deferred
tax assets will not be realized. The ultimate realization of deferred tax
assets is dependent upon the generation of future taxable income during the
periods in
- 11 -
which those temporary differences become deductible. Management considers
the scheduled reversal of deferred tax liabilities, projected future
taxable income, and tax planning strategies in making this assessment.
Based upon this analysis, management determined that no valuation allowance
was required at October 31,2004.
10. EMPLOYEE BENEFIT PLANS
The Company has a defined contribution retirement plan which covers
employees who are at least 21 years of age and have three months of
service. The Company's contributions are discretionary and, if paid, are
based on a match of employee salary reduction amounts. Total plan expense
was $9,916 for the year ended October 31, 2004.
The Company self insures a portion of its health insurance claims. The
Company has accrued the maximum exposure as a liability as of October 31,
2004.
11. COMMITMENTS AND CONTINGENCIES
LEASE OBLIGATIONS Payable-The Company leases certain office and other
facilities. Following is a summary of future minimum payments for operating
leases that have initial or remaining noncancelable lease terms in excess
of one year at October 31, 2004:
YEAR ENDING OCTOBER 31
2005 $ 517,408
2006 427,317
2007 331,474
2008 103,336
-----------
$ 1,379,535
===========
Rent expense for operating leases totaled approximately $693,000 for the
year ended October 31, 2004.
CAPITAL LEASES-The Company leases certain equipment under leases classified
as capital leases. The following is a schedule showing the future minimum
payments under capital leases by years and the present value as of October
31, 2004:
YEAR ENDING OCTOBER 31
2005 $ 1,203,473
2006 878,722
2007 396,174
2008 145,106
2009 41,255
------------
Total payments 2,664,730
Less amount representing interest (223,281)
------------
Present value $ 2,441,449
============
SURETY BONDS-The Company, as a condition for entering into certain
construction contracts, had outstanding surety bonds approximating
$125,000,000 as of October 31, 2004. The bonds are collateralized by the
assets of the Company and the assets of Viasys.
- 12 -
GUARANTEES - VIASYS-Viasys has guaranteed substantially all of the
long-term debt of the Company. In addition, Viasys is a party to certain
general agreements of indemnity related to the issuance of surety bonds to
the Company, whereby Viasys has guaranteed the performance of the Company
under surety bonds.
VARIOUS LEGAL ACTIONS-The Company is a party to various legal actions that
have arisen in the normal course of business. While the outcome of these
matters cannot be estimated with certainty, it is the opinion of management
that the resolution of such litigation will not have a material adverse
effect on the results of operations, financial position or liquidity of the
Company.
MANAGEMENT AGREEMENT-The Company was a party to a one-year management
agreement with an affiliate, which expired on October 31, 2004 and was not
renewed. The agreement requires the payment of a management fee in the
amount of 0.5% of revenue. Additional consideration is due to the extent
the Company exceeds its internal profit projections for any fiscal year
that the agreement is in force. No additional consideration was due under
the agreement. The amount expensed under this agreement for the year ended
October 31, 2004 totaled $279,916.
12. CONCENTRATIONS
The following is a schedule of the Company's major customers, defined by
either total revenue for the year ended October 31, 2004 or total
receivable outstanding at October 31,2004:
AT OCTOBER 31,2004
------------------------------------------
PERCENTAGE OF TOTAL PERCENTAGE OF TOTAL
COMPANY REVENUE COMPANY RECEIVABLES
CUSTOMER A 29% 18%
CUSTOMER B 17 % 27 %
CUSTOMER C 5 % 17 %
13. RELATED PARTY TRANSACTIONS
As of October 31, 2004, the amount due Viasys totaled $4,160,738, including
accrued interest of $67,406. The note and all accrued interest are due on
December 31, 2006 with interest at 3.28% and is collateralized by
substantially all of the assets of the Company. Interest expense totaled
$178,603 for the year ended October 31, 2004.
14. SUPPLEMENTAL DISCLOSURE OF CASH FLOW INFORMATION AND NON-CASH FINANCING
TRANSACTIONS
Disclosure of cash flow information:
Cash paid during the year for interest $1,044,305
Cash paid during the year for income taxes $ 76,527
Disclosure of non-cash financing activities:
Acquisition of equipment financed by capita! leases $1,257,963
* * * * * *
- 13 -
VIASYS SERVICES, INC. AND VIASYS NETWORK SERVICES, INC.
BALANCE SHEET (UNAUDITED)
AUGUST 31, 2005
ASSETS
Current Assets:
Cash and cash equivalents (184,609)
Restricted cash 334,355
Accounts receivable 7,806,831
Retention receivable 1,044,317
Unbilled revenue 1,276,147
Other receivables 138,704
Allowance for doubtful accounts (45,782)
Inventory 116,758
Costs in excess 9,684,718
Prepaid expenses 433,171
Prepaid income taxes 939,001
Deferred tax asset 1,735,935
------------
Total current assets 23,279,546
Property and Equipment:
Cost 17,595,357
Accumulated depreciation (12,908,180)
------------
Net 4,687,177
Other Assets:
Retainage receivable -
Deferred tax asset 900,372
------------
900,372
TOTAL ASSETS 28,867,095
LIABILITIES AND EQUITY
Current Liabilities:
Accounts payable 6,393,188
Long-term debt, current maturities 4,620,000
Xxxxxxxx in excess 268,716
Income taxes payable -
Other accrued liabilities 4,554,791
------------
Total current liabilities 15,836,695
Other Liabilities:
Note payable and accrued interest - NVH 6,399,755
Long-term debt 883,648
Other liabilities 438,617
------------
7,722,020
Total liabilities 23,558,715
Equity
Common stock 4,210
Additional paid in capital 20,830,735
Accumulated deficit (13,731,364)
Current year income (loss) (1,795,201)
------------
Total equity 5,308,380
TOTAL LIABILITIES AND EQUITY 28,867,095
VIASYS SERVICES, INC. AND VIASYS NETWORK SERVICES, INC.
STATEMENT OF OPERATIONS (UNAUDITED)
FOR THE TEN MONTHS ENDED AUGUST 31,2005
REVENUE 47,152,514
COSTS 45,329,760
GROSS PROFIT, EXCL DEPRECIATION 1,822,754
DEPRECIATION 1,463,750
SELLING EXPENSES 296,916
GENERAL & ADMINISTRATIVE 2,317,036
INCOME FROM OPERATIONS (2,254,948)
OTHER INCOME (EXPENSE) (521,553)
INCOME BEFORE INCOME TAXES (2,776,501)
PROVISION FOR INCOME TAXES (981,300)
NET INCOME (1,795,201)
VIASYS SERVICES, INC. AND VIASYS NETWORK SERVICES, INC.
STATEMENT OF CASH FLOWS (UNAUDITED)
FOR THE TEN MONTHS ENDED AUGUST 31, 2005
CASH FLOWS FROM OPERATING ACTIVITIES
Net income (1,795,201)
Adjustments:
Depreciation and amortization 1,463,750
(Gain) loss on disposition of assets (49,047)
Deferred income taxes -
Changes in operating assets/liab:
Restricted cash (334,355)
Accounts receivable, net 1,023,880
Unbilled revenue (1,276,147)
Other receivables 12,898
Inventory (52,211)
Work in process 215,255
Prepaid expenses 10,144
Prepaid income taxes (939,001)
Accounts payable (1,285,587)
Income taxes payable (42,936)
Other accrued liabilities (973,052)
-----------
Net cash from operations (4,021,610)
CASH FLOWS FROM INVESTING ACTIVITIES
Purchase of property and equipment (395,874)
Proceeds from disposition of assets 56,850
-----------
Net cash from investing activities (339,024)
CASH FLOWS FROM FINANCING ACTIVITIES
Net borrowings (payments) on lines of credit (268,509)
Repayment of debt (1,007,777)
Net borrowings (payments) from parent 2,239,017
-----------
Net cash from financing activities 962,731
NET INCREASE (DECREASE) IN CASH (3,397,903)
Cash - Beginning of Period 3,213,294
CASH - END OF PERIOD (184,609)
================================================================================
Heavy Metal Partners,, LLC
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Phone (919) 870-9093-Fax (000) 000-0000
================================================================================
October 26, 2005
Mr. Xxxxx Xxxxxx
Viasys
00 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000 VIA OVERNIGHT DELIVERY
Re: Agreement of Lease dated April 22, 2003 (the "Lease"), between Heavy Metal
Partners, LLC, as Landlord, and Georgia Electric Company, as Tenant, for
premises located at 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Industrial
Park, Raleigh, North Carolina (the "Premises").
Dear Xx. Xxxxxx:
Please recall that Heavy Metal Partners, LLC, recently refinanced the
Landlord Property (as defined in the Lease). At the request of the refinance
lender, a Phase I Environmental Study was performed for the Landlord Property.
This Study revealed that the area surrounding Tenant's oil drums has been
stained with oil, thus indicating that the drums are leaking or have leaked in
the recent past (copies of the relevant pages and photos in the Phase I are
enclosed). The Study further revealed that Tenant has not consistently contained
and disposed of its oil in compliance with the terms of the Lease. Accordingly,
it is requested that Tenant sign and return to us a copy of this letter, thereby
acknowledging and agreeing that: (a) in accordance with Section 10 of the Lease
and as required by our lender, Tenant will remove the drums and completely
remediate the leakage, at its cost and in accordance with all applicable laws,
by no later than December 18, 2005; (b) upon completion of Tenant's remediation,
submit to Landlord a clean environmental report; and (c) during the remainder of
the Lease term, Landlord will conduct periodic inspections of the Premises to
examine Tenant's compliance with the environmental provisions of the Lease; and
if Tenant is not in compliance, Landlord will require Tenant to submit to
Landlord periodic reports detailing the measures to be taken by Tenant to comply
with such provisions.
1
Thank you for your anticipated cooperation.
Sincerely yours,
/s/ Xxxxxxx X. Xxxxxxx, Manager
Xxxxxxx X. Xxxxxxx, Manager
Enclosures
cc: Xx. Xxxx Xxxxxx, Viasys (via fax)
Ms. Xxxxx Megan, Colliers Xxxxxxx (via fax)
Xx. Xxxx Xxxxxxxxxxxx, Colliers Xxxxxxx (via fax)
ACKNOWLEDGED AND AGREED TO BY:
GEORGIA ELECTRIC COMPANY/VIASYS
By: Date:
--------------------------- ---------------------------
Name:
---------------------------
Title:
---------------------------
2
[GRAPHIC OMMITED]
Schedule 2.9(a)(2)
The Financial Statements as of and for the ten months ended August 31, 2005 are
not prepared in accordance with GAAP due to the following:
1) All required basic statements are not included (i.e. - the statement
of changes in stockholder's equity).
2) Notes to the Financial Statements are not included
3) Interest expense for the ten months ended August 31, 2005 on the Note
Payable to New Viasys Holdings was not recorded
4) The Financial Statements have been prepared assuming that the Company
will continue as a going concern. The recurring losses, financial
condition, and lack of financing of the Company create uncertainty as
to the Company's ability to continue as a going concern. The Financial
Statements do not include any adjustments that might be necessary if
the Company is unable to continue as a going concern.
5) Prepaid income taxes reflected on the balance sheet represent
potential tax savings related to current year losses. These amounts
should be classified as deferred income tax assets (subject to a
valuation allowance as noted below).
6) Due to the recurring losses of the Company, a valuation allowance for
the deferred tax assets should be recorded. Such allowance will be
recorded on the October 31, 2005 financial statements.
7) As part of the Company's year end closing procedures, the estimated
contract amounts, including costs to complete, will be reviewed in
detail and adjusted accordingly. This will affect the related amounts
in the Financial Statements.
8) Liabilities recorded for the Company's large deductible casualty
insurance lines (2002 - 2004) as well as liabilities related to the
Company's health insurance plans will be reviewed as of October 31,
2005 and adjusted accordingly.
9) Other long term liabilities on the Financial Statements relate to
certain income tax positions taken by the Company for the tax period
ended October 31, 2001. Management of the Company will review the
necessity of this liability as of October 31, 2005 in light of related
statute of limitations and any valuation allowance for deferred tax
assets that may be recorded (see 5 and 6 above).
10) The provision for income taxes has been estimated. The actual amount
will change based upon the final tax calculations as well as the
determination of the valuation allowance for deferred tax assets.
11) The allowance for doubtful accounts and reserve for contract losses
needs to be reviewed in accordance with the year end closing
procedures and adjusted accordingly.
12) The Company reviews all balances on the Financial Statements as part
of its year end closing procedures. There are normally adjustments
made based upon these year end closing procedures.
13) The Financial Statements do not include any liability or disclosure
related to the Lumbermens Mutual Insurance Company litigation. It was
determined that no disclosure was required to be made nor any
liability be recorded as of the October 31, 2004 financial statements.
An analysis of the appropriate accounting guidance would need to be
made as of the date of the Financial Statements to determine any
disclosure requirements as well as any requirement to record a
liability.
Schedule 2.9(b)
In addition to those items disclosed on Schedule 2.9(a)(2), the following are
potential liabilities not set forth in the Financial Statements:
1) Any liability related to the Lumbermens Mutual Casualty Company vs.
Able Telecommunications & Power, Inc., Transportation Safety
Contractors, Inc. and Georgia Electric Company.
2) The Virginia Department of Transportation previously alleged that the
Company was overpaid $362,849.03 in the latter part of 1999 through
January 2000 under Contract No. CMA98GRR101. The matter remains
unresolved.
3) As part of a settlement agreement with S.Rock/Xxxxxxxxx Corporation
("S.Rock"), S.Rock is entitled to a percentage of any delay claim
recovery the Company may have under the VDOT Job as follows: (1) 50%
of first $1,500,000 and (2) 10% thereafter, up to a total of
$1,500,000 for (1) and (2)).
Schedule 2.11
While the Company has not completed its financial statements for any months
after the Financial Statement Date, it is expected that further operating losses
will be recorded.
Schedule 2.12(a)
2.12(a)(i)
1) Viasys 401(k) Plan
2) Oral bonus plans as follows:
a. Xxxxx Xxxxxxx - 3% of the gross profit from the Xxxxxx Tire jobs,
payable quarterly.
b. Xxxx Xxxxxxxx by - 2% of the gross profit from the Masterfoods
project, payable quarterly
c. Xxxxx Xxxxxxxx - up to $8,000 annual based upon individual and
Xxxxxx Tire project performance
d. Other bonuses have been paid to employees based upon a subjective
basis.
3) The Company provides various benefit plans including: (1) health
insurance, (2) voluntary dental insurance, (3) voluntary STD and LTD
insurance, (4) voluntary life insurance, and (5) Company provided life
insurance of $25,000 for each full time employee.
2.12(a)(ii)
4) The Company is party to two employment agreements (Xxxxx XxXxxxx and
Xxxxxx Xxxxxx).
2.12(a)(iii)
5) The Company was party to several General Agreements of Indemnity with
sureties related to its former parent company, Able Telcom Holding
Corp. Agreements were with the following sureties: (1) American
International Companies ("AIG"), (2) Liberty Bond Services, (3)
American Alliance Insurance Company, (4) CNA Insurance Companies, (5)
Firemans Fund Insurance Company, (6) St. Xxxx Surety, and (7)
Universal Insurance Company ("Lumbermens"). These agreements provide
the sureties the ability to file liens on the assets of the Company.
Both Lumbermens and AIG have filed UCC's.
6) The Company has entered into two General Agreements of Indemnity: (1)
Liberty Mutual Insurance Company and Xxxx & Xxxxxxx Surety. These
agreements provide the sureties the ability to file liens on the
assets of the Company.
7) Promissory Note between Georgia Electric Company, Viasys Utility
Services, Inc. and Viasys Services, Inc. (collectively the "Makers")
and New Viasys Holdings, LLC (the "Payee") dated November 1, 2003.
8) WCMA Loan and Security Agreement No. 2BN-07936 dated August 28, 2002
between Transportation Safety Contractors, Inc. (n/k/a Viasys
Services, Inc.) and Xxxxxxx Xxxxx Business Financial Services, Inc.
("MLBFS"), along with related guaranty and security agreements and
amendments thereto
9) WCMA Reducing Revolver Loan Agreement No. 2BN-07937 dated September
26, 2002 between Transportation Safety Contractors, Inc. (n/k/a Viasys
Services, Inc.) and MLBFS, along with related agreements and
amendments thereto.
10) WCMA Reducing Revolver Loan Agreement No. 2BN-07938 dated September
26, 2002 between Transportation Safety Contractors, Inc. (n/k/a Viasys
Services, Inc.) and MLBFS, along with related agreements and
amendments thereto.
11) Master Lease Agreement No. AFI0280 between Applied Financial, Inc. and
Viasys Utility Services, Inc. (n/k/a Viasys Services, Inc.) dated
August 29, 2002 and related guaranty and other documents.
12) Master Lease Agreement between Gelco Corporation (d/b/a GE Capital
Fleet Services) and New Viasys Holdings, LLC, along with related
agreements.
13) Master Equity Lease Agreement between Enterprise Fleet Services and
New Viasys Holdings, LLC dated May 13, 2002, and related agreements.
14) Master Lease Agreement between General Electric Capital Corporation
and Viasys Services, Inc. dated September 9, 2003.
15) Lease agreement between Avon Equipment Leasing, Inc. and Viasys dated
July 13, 2004.
16) Capital lease with Altec starting in February 2002 and scheduled to
terminate in February 2006.
17) Vehicle financing agreement with GMAC scheduled through September
2006.
18) Financing agreement between Vermeer Credit Corporation and Viasys
Utility Services, Inc (n/k/a Viasys Services, Inc).
19) Lease agreement between Fleet Capital Leasing(n/k/a Banc America
Leasing), and Viasys Services, Inc dated February 4, 2004.
20) Master lease agreement #618670/1071547 between American Express
Business Finance and Viasys Services, Inc. dated August 2004.
21) Finance agreement between Netbank Business Finance and Viasys
Services, Inc. dated October 7, 2004.
22) Lease agreement between Direct Capital Funding, Inc. (assigned to
Xxxxxx Leasing) and Viasys Services, Inc. dated May 2005.
23) Equipment Lease agreement #2171446 between Direct Capital Corporation
and Viasys Services, Inc. dated June 24, 2005.
24) Lease agreements #4231201-001 and -002, between General Electric
Capital Corporation and Viasys Services, Inc.
2.12(a)(iv)
25) The Company is guarantor under the agreements between lenders and New
Viasys Holdings, LLC listed under 2.12(a)(iii) above.
26) The Company has the following outstanding letters of credit:
x. Xxxxxxx Xxxxx Irrevocable Standby Letter of Credit No. 200410 in
the amount of $850,000; beneficiary - National Union Fire
Insurance Company of Pittsburgh, PA.
x. Xxxxxxx Xxxxx Irrevocable Standby Letter of Credit No. 200569 in
the amount of $490,000; beneficiary - Zurich American Insurance
Company.
27) The Company issues payment and performance bonds on predominantly all
of its projects for Departments of Transportation or other
governmental entities.
28) Other than payment and performance bonds (see above), the Company is
the principal on Surety Bond No. 000-000-000 for the benefit of Zurich
American Insurance Company in the amount of $375,000.
2.12(a)(vi)
29) The Company subleases office space at its 00 Xxxx Xxxx Xxxxx,
Xxxxxxxx, XX leased office to two individuals. The agreements are
verbal.
2.12(a)(vii)
30) The Company is party to management agreements with Preferred
Management, LLC and H.I.G. Capital, LLC. All amounts due under these
agreements will be accrued on the balance sheet of the Company as of
October 31, 2005 (see Subsection 5.3).
31) The Company is a debtor under a promissory note to its parent company,
Seller.
2.12(a)(viii)
32) The Company is party to several reseller agreements, including the
reselling of software.
2.12(a)(ix)
33) All of the Company's contracts have warranty provisions in the normal
course of business.
2.12(a)(xii)
34) The Company has issued purchase orders and subcontract agreements in
the normal course of business to purchase items for its projects.
2.12(a)(xiii)
35) The Company entered into an agreement with FMI Corporation dated June
7, 2005.
Schedule 2.12(b)
SCHEDULE 2.14(b)
LOCATION DESCRIPTION LEASING COMPANY
Xxxxxxx Konica Copier System Bank of America Leasing
LA Canon Copier W J S Enterprises, Inc
Lakeland Toshiba/3560 Boring Business Systems
Lakeland Toshiba/Estudio 28 Boring Business Systems
Lakeland Konica/7145 Boring Business Systems
NSD Toshiba Copier System Toshiba
Tampa Konica Copier System Commercial Equip Leasing
Tampa Kyocera Mita Copier System Commercial Equip Leasing
Tampa Kyocera Mita Copier System Commercial Equip Leasing
Tampa Kyocera Mita Copier System Commercial Equip Leasing
Tampa Kyocera Mita Copier System Commercial Equip Leasing
Tampa Kyocera Mita Copier System Commercial Equip Leasing
Tampa Kyocera Mita Copier System Commercial Equip Leasing
Tampa Kyocera Mita Copier System Commercial Equip Leasing
Tampa 45ST/DADF/HCF Xerox
VA Digital Copier Xerox
VA 432DC W/2 Trays Xerox
VNS Toshiba Copier System Toshiba
VNS Toshiba/Estudio 350 Boring Business Systems
Schedule 2.14(b)
==================================================================================================================================
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
1 Fire Proof File Cabinet - 4 Drawer 3/19/2002 710.20 213.06 Lakeland
2 Office Furniture 3/20/2002 5,220.61 1,566.19 Lakeland
3 Nortel Trunk Module & Cartridge 2/28/2002 550.00 155.84 Lakeland
4 Office Furniture 2/28/2002 3,291.34 932.54 Lakeland
5 X135 Lobby Office Furniture 1/31/2002 2,053.94 547.72 Lakeland
6 Office Furniture 12/31/2001 7,623.52 1,905.89 Lakeland
7 Norstar Telephone System 12/31/2001 7,208.00 1,802.01 Lakeland
w/ ATA Module
8 CEO Office Furniture 12/31/2001 2,957.39 739.34 Lakeland
X(Desk/Credenza, etc)
9 Computer Equipment & Accessories 3/12/2002 16,329.72 453.60 Lakeland
10 SOHO3 50V Plus Service Bundle 3/12/2002 1,372.70 38.12 Lakeland
11 Toshiba 3560 Expansion Memory 3/26/2002 1,627.10 488.13 Lakeland
X& Printer Kit
12 Toshiba 3560 Copier 1/31/2002 3,127.00 833.87 Lakeland
13 IBM Netvist P-4 w/ 15 NEC Monitor" 12/31/2001 1,808.95 - Lakeland
14 IBM Netvist P-4 w/ 15 NEC Monitor" 12/31/2001 1,808.95 - Lakeland
15 IBM Series 200 Server 12/31/2001 4,479.42 1,119.87 Lakeland
X(Timberline & Files)
16 IBM Series 200 Server 12/31/2001 4,663.72 1,165.94 Lakeland
X(Mail & Exchange)
17 IBM Series 232 Server 12/31/2001 9,268.81 2,317.21 Lakeland
X(Citrix)
18 MS2000 Server and 12/31/2001 7,254.85 - Lakeland
Additional Licenses
19 IBM DDS4 Tape Auto Loader 12/31/2001 2,098.42 524.62 Lakeland
20 Seagate Backup Software 12/31/2001 1,712.74 - Lakeland
21 Citrix Metaframe 12/31/2001 4,646.40 - Lakeland
X(20 Users)
22 HP 24 Port Switch 12/31/2001 1,168.24 - Lakeland
23 DSL Router 12/31/2001 510.33 - Lakeland
24 Norton Anti-Virus Copr 7.6 12/31/2001 625.00 - Lakeland
25 Timberline Purchasing 4/22/2002 13,144.00 - Lakeland
X/Inventory Module
26 BidTabs Professional 5/6/2002 5,317.90 147.72 Lakeland
Internet Based Software
27 Compaq Presario Notebook 5/31/2002 1,536.98 - Lakeland
28 Compaq Presario Notebook 5/17/2002 1,670.36 - Lakeland
29 SOHO3 50V Server 8/31/2002 2,543.57 - Lakeland
30 Computer EVO N800V 10/31/2002 1,837.87 51.07 Lakeland Applied
Financial
31 Computer EVO N800V 10/31/2002 1,860.34 51.69 Lakeland Applied
w/ Numeric Pad Financial
32 Computer EVO N1000V 10/31/2002 2,335.42 64.89 Lakeland Applied
Financial
33 Computer EVO N800V 10/31/2002 2,033.68 56.51 Lakeland Applied
Financial
34 Laserjet 1200 Printer 10/31/2002 432.63 12.02 Lakeland Applied
w/ Accessories Financial
35 X15 LCD Computer Monitor" 10/31/2002 416.58 11.58 Lakeland Applied
Financial
36 Computer EVO D300V 10/31/2002 844.58 23.46 Lakeland Applied
Financial
37 Office Pro Software WIN 32 10/31/2002 5,761.23 160.04 Lakeland Applied
X(Qty 8) Financial
38 Computer N115 A1.2 G 10/31/2002 1,755.92 48.77 Lakeland Applied
Financial
39 Computer EVO N115 A1.2G 10/31/2002 1,755.92 48.77 Lakeland Applied
Financial
40 Computer EVO N115 A1.2G 10/31/2002 1,755.92 48.77 Lakeland Applied
Financial
41 Computer EVO N800V 10/31/2002 1,927.12 53.55 Lakeland Applied
Financial
42 Computer EVO N800C 10/31/2002 2,915.80 81.01 Lakeland Applied
Financial
43 Computer EVO N800V 10/31/2002 2,122.93 58.98 Lakeland Applied
Financial
44 Computer EVO N800V 10/31/2002 2,122.93 58.98 Lakeland Applied
Financial
45 Computer EVO N115 10/31/2002 1,947.31 54.11 Lakeland Applied
w/ Office Pro XP Financial
46 Computer EVO D300V MT 10/31/2002 1,187.65 33.00 Lakeland Applied
Financial
47 Computer EVO D300V MT 10/31/2002 1,187.65 33.00 Lakeland Applied
Financial
48 Computer EVO D300V MT 10/31/2002 1,187.65 33.00 Lakeland Applied
Financial
49 Computer EVO D300V MT 10/31/2002 1,187.65 33.00 Lakeland Applied
Financial
50 Computer EVO D300V MT 10/31/2002 1,187.65 33.00 Lakeland Applied
Financial
51 X15 LCD Monitor" 10/31/2002 406.55 11.29 Lakeland Applied
Financial
52 X15 LCD Monitor" 10/31/2002 406.55 11.29 Lakeland Applied
Financial
53 X15 LCD Monitor" 10/31/2002 406.55 11.29 Lakeland Applied
Financial
54 X15 LCD Monitor" 10/31/2002 406.55 11.29 Lakeland Applied
Financial
55 X15 LCD Monitor" 10/31/2002 407.05 11.32 Lakeland Applied
Financial
56 Computer EVO N115 10/31/2002 1,979.76 55.00 Lakeland Applied
ATH 1600 w/ Office Pro XP Financial
57 Trade Show Displays 12/11/2002 6,423.79 2,890.70 Lakeland
58 Office Furniture for COO 2/25/2003 1,857.12 928.57 Lakeland
59 Timberline Remote Time 2/6/2003 1,484.00 247.34 Lakeland
Entry Module 2 Users
60 Server and 5 Licenses 2/26/2003 4,808.61 801.44 Lakeland
w/ Related Software
61 U3-1100Z XGA 2/17/2003 2,424.75 404.13 Lakeland
Multimedia Projector
62 IBM Server for Virginia 2/28/2003 3,171.52 528.59 Chesapeake
63 Add'l COO Furniture 3/11/2003 1,093.94 546.97 Lakeland
64 Laptop w/DVD/CWR 256 MB 3/31/2003 1,206.68 201.11 Lakeland
65 Laptop w/DVD/CWR 256 MB 3/31/2003 1,206.68 201.11 Lakeland
66 IBM ThinkPad w/ Pt Replicator 4/30/2003 2,644.38 514.19 Lakeland
and 17 LCD Screen"
67 IBM ThinkPad 4/30/2003 1,906.52 370.71 Network
Services
68 IBM Thinkpad T30 P4m-1.8G 40GB 6/30/2003 1,683.78 420.95 Lakeland
69 Procurve Switch/Module 6/30/2003 3,094.20 773.54 Lakeland
70 Ghost Sftwr Ghost 7.5 Corp Backup 6/30/2003 1,017.60 254.40 Lakeland
Software-Network
71 IBMThinkPad IBM Think Pad Laptop Computer 6/30/2003 1,362.10 340.53 Lakeland
72 Upgrade to Timberline Software 7/31/2003 23,141.10 13,113.29 Lakeland
73 Financial Statements Timberline 8/19/2003 800.00 466.67 Lakeland
74 Job cost 8/26/2003 600.00 350.00 Lakeland
/Payroll COnsulting Timberline
75 IBM Laptop R40 Series - Network 7/15/2003 3,354.52 838.64 Lakeland
76 F&F 8/31/2003 833.71 486.34 Lakeland
77 F&F for Xxxxx 8/31/2003 781.77 456.03 Lakeland
78 Wireless Software 7/31/2003 1,147.87 318.86 Lakeland
for Sales Department
79 FAS Network System 10/31/2003 2,474.73 893.66 Lakeland
80 IBM Think Pad 9/30/2003 2,069.12 689.69 Lakeland
R-40 Pent 4m 1.5GHZ
81 Hardware for Server 9/30/2003 2,366.98 788.99 Lakeland
82 IBM Desktop w/monitor 9/30/2003 1,069.38 356.45 Lakeland
83 IBM Desktop w/ monitor 9/30/2003 1,069.38 356.45 Xxxxxxxx
00 Xxxxxxx Xxxxxxxxxx Project 10/31/2003 8,480.00 3,062.22 Lakeland
Management Solution Software
85 Viewsonic E70 Black 9/30/2003 795.00 265.01 Xxxxxxxx
X00 Flat Screen (Qty5)"
86 Computer-Xeon 2.4Ghz 512MB 9/30/2003 1,166.00 388.65 Lakeland
Page 1 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
87 X18.1 Flat Panel LCD 9/30/2003 1,404.50 468.17 Lakeland
Digital Monitor Xxxxx Xxxxx (Qty2)"
88 NetVista M42-P4 9/30/2003 511.00 170.33 Lakeland
X2.26GHZ/512KB,256MB
89 NetVista M42-P4 9/30/2003 514.10 171.37 Lakeland
X2.26GHZ/512KB,256MB
90 NetVista M42-P4 9/30/2003 514.20 171.41 Lakeland
X2.26GHZ/512KB,256MB
91 NetVista M42-P4 9/30/2003 514.10 171.37 Lakeland
X2.26GHZ/512KB,256MB
92 NetVista M42-P4 9/30/2003 514.10 171.37 Lakeland
X2.26GHZ/512KB,256MB
93 NetVista M42-P4 9/30/2003 514.10 171.37 Lakeland
X2.26GHZ/512KB,256MB
94 NetVista M42-P4 9/30/2003 514.10 171.37 Lakeland
X2.26GHZ/512KB,256MB
95 NetVista M42-P4 9/30/2003 514.10 171.37 Lakeland
X2.26GHZ/512KB,256MB
96 NetVista M42-P4 9/30/2003 514.10 171.37 Lakeland
X2.26GHZ/512KB,256MB
97 NetVista M42-P4 9/30/2003 514.10 171.37 Lakeland
X2.26GHZ/512KB,256MB
98 ThinkPad 128MB SDRAM 9/30/2003 265.00 88.35 Lakeland
99 TPT23-PIII 1.2Ghz 128MB 9/30/2003 1,272.00 424.01 Lakeland
100 TPT23-PIII 1.2Ghz 128MB 9/30/2003 1,272.00 424.01 Lakeland
101 TPT23-PIII 1.2Ghz 128MB 9/30/2003 1,272.00 424.01 Lakeland
102 TPT23-PIII 1.2Ghz 128MB 9/30/2003 1,272.00 424.01 Lakeland
103 TPT23-PIII 1.2Ghz 128MB 9/30/2003 1,272.00 424.01 Lakeland
104 Win Svr STD 2003, 10/31/2003 3,919.70 1,415.45 Lakeland
Exchange svr 2003 office pro
105 Sales Tax for Dartek 10/31/2003 79.47 28.70 Lakeland
invoice#888067
106 Server Hardware & Software 11/30/2003 3,669.30 1,426.95 Lakeland
107 IBM Computer Equipment 12/23/2003 22,142.75 9,226.15 Lakeland IBM
108 Software License for 12/31/2003 1,995.00 831.25 Lakeland
Workshare Deltaview Software
109 Additonal Amount needed for 1/1/2004 119.70 49.88 Lakeland
WOrkshare Sales Tax
110 Printer- HPC7770C 2/29/2004 4,418.69 2,086.61 Lakeland
Design Jet 500PS 42 Plotter"
111 Computer Equipment 2/29/2004 9,618.82 4,542.21 Lakeland IBM
IBM Lease Part2
112 Konica 7130 Copier 2/29/2004 13,232.63 6,248.74 Lakeland Fleet Capital
Leasing/BOA
113 Abode Acrobat 6.0 Pro 4/30/2004 1,437.70 758.79 Lakeland
114 Workstation 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.43 1,197.32 Xxxxxxxx
000 Xxxxxxxxxxx 6/30/2004 1,596.51 1,197.39 Lakeland
130 ProEstimate Software 7/31/2004 13,750.00 8,402.79 Lakeland
131 SwithView IP Single Port, 7/31/2004 1,498.44 915.72 Lakeland
and 1X8 8 Port Outlook
Console Switch
132 Procurve Swch 2650 48 PT 10/1 8/31/2004 1,169.37 747.10 Xxxxxxxx
000 Xxxxxxxx Xxxx 0000 48 PT 10/1 8/31/2004 1,169.37 747.10 Lakeland
134 Desktop EXP TC A300 Intell Pent 8/31/2004 438.51 280.17 Lakeland
135 Desktop EXP TC A300 Intell Pent 8/31/2004 438.51 280.17 Lakeland
136 Desktop EXP TC A300 Intell Pent 8/31/2004 438.51 280.17 Lakeland
137 Desktop EXP TC A300 Intell Pent 8/31/2004 438.51 280.17 Lakeland
138 Desktop EXP TC A300 Intell Pent 8/31/2004 438.53 280.18 Xxxxxxxx
000 Xxxxxxx XX X00 Xxxxxxx 4 3.0 HT 8/31/2004 670.31 428.24 Lakeland
140 ThinkVision L170 Monitors 8/31/2004 2,542.58 1,624.41 Lakeland
X (Qty5)
141 ThinkPad Laptop P4-M 1.7Ghz, 8/31/2004 1,696.00 1,083.57 Xxxxxxxx
X000XX, 60GB 7200rpm
142 ThinkPad Laptop P4-M 1.7Ghz, 8/31/2004 1,696.00 1,083.57 Xxxxxxxx
X000XX, 60GB 7200rpm
143 ThinkPad Laptop P4-M 1.7Ghz, 8/31/2004 1,696.00 1,083.57 Xxxxxxxx
X000XX, 60GB 7200rpm
144 Leasehold Improvements for 8/31/2004 15,990.09 10,215.88 Lakeland
X26 Lake Wire
145 Citrix MF XP Presentation 10/31/2004 1,936.23 1,344.61 Lakeland
146 Open Term Svr 2003 User Cal 10/31/2004 1,609.64 1,117.81 Lakeland
147 DB3909 VERMEER 2440A 9/15/1998 75,890.00 11,202.67 Tampa
BORING MACHINE
149 TT2402 X1992 FREIGHTLINER FL112 3/2/1996 23,352.00 - Tampa
TRACTOR W/MIX
150 F107 X1984 DEERE 644C LOADER 9/14/1987 78,671.25 - Tampa
151 F109 XXXX DEERE 544C LOADER 10/15/1991 21,200.00 - Tampa
152 AC4504 X1990 XXXXXXXXX XXXX 6/1/1993 6,086.30 - Tampa
P175 AIR COMPRESSOR
153 AC4506 X1997 XXXXXXXXX XXXX 1/24/1995 7,430.00 - Tampa
X185WJD AIR COMPRESSOR
154 ET3002 X1986 HMDEE EQUIP TRAILER 11/28/1986 325.00 - Tampa
155 ET3003 X1988 INTERSTATE 9/25/1987 6,536.25 - Tampa
EQUIP TRAILER
156 ET3009 X1983 DITCH WITCH 3/1/1991 3,745.00 - Tampa
EQUIP TRAILER
157 ET3010 X1984 DITCH WITCH 5/21/1991 3,745.00 - Tampa
EQUIP TRAILER
158 ET3012 X1984 INTERSTATE TRAILER 6/2/1992 2,500.00 - Tampa
159 ET3014 X1989 EAGER BEAVER 6/2/1992 4,000.00 - Tampa
EQUIP TRAILER
160 ET3015 X1989 DITCH WITCH TRAILER 6/2/1992 1,000.00 - Tampa
161 ET3016 X1985 INTERSTATE TRAILER 6/2/1992 3,700.00 - Tampa
162 CT3166 X1988 BUTL CABLE TRAILER 8/25/1994 1,200.00 - VNS
163 ET3025 X1994 XXXXXX EQUIP TRAILER 2/17/1995 6,928.34 - Tampa
164 ET3030 X1996 XXXXXX EQUIP TRAILER 1/22/1996 7,966.08 - Xxxxxxx
165 ET3033 X1996 XXXXXX EQUIP TRAILER 4/19/1996 7,966.08 - Xxxxxxx
166 ET3034 X1996 XXXXXX EQUIP TRAILER 4/22/1996 7,966.08 - Tampa
167 ET3035 X1996 XXXXXX EQUIP TRAILER 7/12/1996 7,978.58 - Tampa
168 TK1711 X1988 FORD F350 1TON TRUCK 8/19/1993 11,042.73 - Tampa
169 TR1517 X1990 FORD F450 1TON TRUCK 2/7/1995 13,864.45 - Tampa
170 CT2750 X1989 FORD F800 1/25/1996 40,900.00 - Xxxxxxx
WITH 12TON CRANE
171 TR1506 X1996 FORD F350 1TON TRUCK 2/23/1996 21,451.48 - Raleigh
172 DT2602 X1991 INTERNATIONAL 4/25/1996 16,421.00 - Xxxxxxx
DUMP TRUCK
173 TK1745 X1998 FORD F800 2TON TRUCK 5/5/1998 28,589.92 - Chesapeake
175 TR1528 X1999 FORD F450 1TON TRUCK 5/11/1998 28,589.92 - Tampa
176 TR1527 X1999 FORD F450 1TON TRUCK 5/11/1998 28,589.92 - VNS
177 ET3073 X1998 XXXXXX T142EP 5/12/1998 6,773.84 - VNS
EQUIP TRAILER
178 TR1531 X1997 FORD F350 1TON TRUCK 5/21/1998 28,589.92 - Tampa
Page 2 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
179 TR1530 X1999 FORD F350 1TON TRUCK 5/21/1998 28,589.92 - Tampa
180 TR1529 X1997 FORD F350 1TON TRUCK 5/21/1998 28,589.92 - Raleigh
181 ET3072 X1998 XXXXXX XX0000XX 5/21/1998 11,391.61 - Tampa
EQUIP TRAILER
183 ET3074 X1998 XXXXXX XX0000XX 6/12/1998 10,915.00 - Tampa
EQUIP TRAILER
185 P0423 X1998 FORD F150 7/22/1998 19,531.10 - Xxxxxxx
X0x0 P/U TRUCK
186 ET3050 X1997 XXXXXX WB2EP 11/13/1997 4,271.00 - Tampa
EQUIP TRAILER
187 TK1731 X1998 FORD F800 2TON TRUCK 2/13/1998 36,979.00 - Chesapeake
188 TK1730 X1998 FORD F800 2TON TRUCK 2/13/1998 36,979.00 - Tampa
189 TK1729 X1998 FORD F800 2TON TRUCK 2/13/1998 35,430.00 - Chesapeake
190 TK1726 X1998 FORD F800 2TON TRUCK 2/13/1998 35,430.00 - Raleigh
191 TK1735 X1998 FORD F800 2TON TRUCK 2/14/1998 37,430.00 - Chesapeake
192 TK1734 X1998 FORD F800 2TON TRUCK 2/14/1998 36,979.00 - Tampa
193 TK1733 X1998 FORD F800 2TON TRUCK 2/14/1998 36,979.00 - Chesapeake
194 TK1732 X1998 FORD F800 2TON TRUCK 2/14/1998 36,979.00 - Chesapeake
195 TK1739 X1998 FORD F800 2TON TRUCK 2/15/1998 37,178.00 - Chesapeake
196 TK1738 X1998 FORD F800 2TON TRUCK 2/15/1998 37,178.00 - Chesapeake
197 TK1736 X1998 FORD F800 2TON TRUCK 2/15/1998 37,430.00 - Chesapeake
198 BH4330 X1998 FORD 555E 4WD BACKHOE 2/27/1998 47,170.00 - Xxxxxxx
199 ET3053 X1998 INTERSTATE 2/28/1998 7,796.00 - Tampa
EQUIP TRAILER
200 BH4324 X1998 FORD 555E 4WD BACKHOE 2/28/1998 47,170.00 - Xxxxxxx
201 BH4320 X1996 FORD 555E 4WD BACKHOE 3/2/1998 49,500.00 - Xxxxxxx
202 BH4331 X1998 FORD 555E 4WD BACKHOE 3/6/1998 47,170.00 - Xxxxxxx
203 ET3057 X1997 XXXXXX EQUIP TRAILER 3/10/1998 3,859.00 - Raleigh
204 BH4333 X1998 FORD 555E 4WD BACKHOE 3/12/1998 47,170.00 - VNS
205 TR1526 X1996 FORD F450 1TON TRUCK 3/19/1998 28,352.00 - Raleigh
206 ET247 X1998 XXXXXX X00 4/14/1998 6,420.00 - Tampa
EQUIP TRAILER
207 ET3062 X1998 XXXXXX EQUIP TRAILER 4/14/1998 6,512.00 - Tampa
209 P0410 X1998 CHEVY Z71 1500 4/16/1998 24,022.00 - Tampa
P/U TRUCK
210 P0411 X1998 FORD RANGER 4/20/1998 12,898.00 - Tampa
P/U TRUCK
211 P0420 X1998 FORD F150 P/U TRUCK 5/1/1998 16,474.00 - Chesapeake
212 P0419 X1998 FORD F150 P/U TRUCK 5/1/1998 16,474.00 - Chesapeake
213 P0418 X1998 FORD F150 P/U TRUCK 5/1/1998 16,474.00 - Albany
214 P0417 X1998 FORD F150 P/U TRUCK 5/1/1998 16,474.00 - Chesapeake
215 P0416 X1998 FORD F150 P/U TRUCK 5/1/1998 16,474.00 - Tampa
216 P0415 X1998 FORD F150 P/U TRUCK 5/1/1998 16,474.00 - Chesapeake
217 P0414 X1998 FORD F150 P/U TRUCK 5/1/1998 16,474.00 - Chesapeake
218 TK1750 X1998 FORD F800 2TON TRUCK 5/5/1998 28,590.00 - Chesapeake
219 TK1747 X1998 FORD F800 2TON TRUCK 5/5/1998 28,590.00 - Chesapeake
220 TK1746 X1998 FORD F800 2TON TRUCK 5/5/1998 28,590.00 - Chesapeake
221 TK1752 X1987 INTERNATIONAL 7/19/1995 17,287.00 - VNS
X1900 2TON TRUCK
222 ET3076 X1995 XXXXXX EQUIP TRAILER 9/12/1995 3,408.00 - Xxxxxxx
223 ET3086 X1995 XXXXXX EQUIP TRAILER 9/12/1995 3,408.00 - Tampa
224 TT2401 X1992 FREIGHTLINER 1/22/1997 41,359.02 - Tampa
TRACTOR W/MIX
225 ET3044 X1996 XXXXXX EQUIP TRAILER 3/7/1997 9,084.84 - Tampa
226 CT3164 X1997 CABLE TRAILER 5/1/1997 8,462.00 - Tampa
227 TM3560 X1997 DITCH WITCH TRENCHER 10/24/1997 50,292.95 - Xxxxxxx
229 ET3069 X1998 XXXXXX EQUIP TRAILER 3/10/1998 3,843.02 - Xxxxxxx
230 ET3067 X1998 XXXXXX EQUIP TRAILER 3/10/1998 3,859.06 - Tampa
231 TM3561 X1998 DITCH WITCH 3/24/1998 49,828.37 - Tampa
X5110 TRENCHER
232 TM3562 X1998 DITCH WITCH 4/1/1998 49,853.55 - Xxxxxxx
X5010 TRENCHER
233 TM3302 X1998 DITCH WITCH TRENCHER 1/30/1999 10,272.69 - Chesapeake
234 VT2253 X1998 VACTRON 1/30/1999 24,556.50 - Tampa
VACUUM TRAILER
235 P0425 X1999 CHEVY Z71 P/U TRUCK 4/2/1999 29,989.84 - Xxxxxxx
236 TH3252 X1999 BOBCAT 320E 7/27/1999 25,016.00 - Tampa
MINI TRACKHOE
237 P0427 X1999 CHEVY Z71 8/10/1999 32,465.84 - Xxxxx
X0000 P/U TRUCK
238 BH4337 X2000 XXXX DEERE 3/15/2000 54,696.00 - Tampa
X310E 4WD BACKHOE
239 BH4338 X2000 CASE 580L 4WD BACKHOE 4/12/2000 40,971.00 - Tampa
240 VT2256 X2000 RINGOMATIC 2/24/2000 18,020.00 - Tampa
VACUUM TRAILER
241 VT2257 X2000 RINGOMATIC 5/9/2000 18,020.00 - Tampa
VACUUM TRAILER
242 ET3094 X1994 TRAILKING EQUIP TRAILER 4/28/2000 17,000.00 - Tampa
243 FK5602 X1990 CASE 586E FORKLIFT 2/10/2000 12,770.00 1,154.87 Tampa
244 X1P0707 X1997 FORD F250 P/U TRUCK 12/14/1999 12,846.00 - Tampa
245 A0114 X2000 GMC YUKON DENALI 12/2/1999 42,000.00 - Raleigh
246 P0429 X2000 CHEVY Z71 P/U TRUCK 12/13/1999 31,475.00 - VNS
247 P0431 X2000 GMC Z71 P/U TRUCK 1/26/2000 29,300.00 - Tampa
248 A0101 X2000 FORD 9/27/2000 21,657.00 - Lakeland
CROWN VICTORIA CAR
249 P0434 X2000 GMC Z71 P/U TRUCK 10/5/2000 23,127.00 - Tampa
250 TH3253 X2000 BOBCAT 322 3/2/2000 25,016.00 - Tampa
MINI TRACKHOE
251 TTO4A TRUCK 3/13/2000 29,680.00 - Tampa
252 TT2403 X1994 FORD LT9000 TRACTOR 4/28/2000 23,000.00 - Tampa
254 C159 VERMEER INTERRAGATOR II 12/1/2000 44,414.00 1,480.04 Tampa
255 TK1765 X2001 INTERNATIONAL 11/7/2000 53,302.31 146.88 Tampa
X4700 2TON TRUCK
256 AC4520 X1998 XXXXXXXXX XXXX 9/27/2001 6,741.00 - Tampa
P185 AIR COMPRESSOR
257 AC4522 X1998 XXXXXXXXX XXXX 9/27/2001 6,741.00 1,348.55 Xxxxxxx
P185 AIR COMPRESSOR
258 BH4340 X2001 CASE 580M BACKHOE 2/14/2001 43,462.00 2,897.20 Tampa
259 BH4341 X1998 XXXX DEERE 5/29/2001 35,666.66 4,755.13 Xxxxxxx
X000XX BACKHOE
260 BH4342 X1998 XXXX DEERE 5/29/2001 35,666.67 4,756.13 Tampa
X310E BACKHOE
261 BH4343 X1998 XXXX DEERE 5/29/2001 35,666.68 4,755.09 Xxxxx
X000XX BACKHOE
262 TM3354 X2001 CASE 460 TRENCHER 8/16/2001 26,783.20 4,910.26 Tampa
263 TM3355 X2001 CASE 460 TRENCHER 8/16/2001 32,254.92 5,913.43 Tampa
264 TM3356 X2001 CASE 460 TRENCHER 8/16/2001 32,254.92 5,913.43 Xxxxxxx
000 XX0000 X2001 XXXXXX EQUIP TRAILER 5/29/2001 7,490.00 998.67 Tampa
266 ET6001 X2001 XXXXXX EQUIP TRAILER 5/29/2001 7,490.00 998.67 Xxxxxxx
267 ET6005 X2001 EAGER BEAVER 8/16/2001 4,673.24 856.75 Raleigh
EQUIP TRAILER
268 ET6006 X2001 EAGER BEAVER 8/16/2001 4,673.24 856.75 Tampa
EQUIP TRAILER
269 ET6007 X2001 EAGER BEAVER 8/16/2001 4,673.26 856.77 Tampa
EQUIP TRAILER
270 A0117 X2001 GMC YUKON P/U TRUCK 4/27/2001 39,152.91 4,567.85 Xxxxxxxx
000 X0000 X2001 TOYOTA SEQUOIA 7/16/2001 44,197.07 7,366.20 Network
Services
272 P0440 X1997 FORD F150 10/3/2001 9,300.00 2,015.00 Xxxxxxx
X0x0 P/U TRUCK
273 P0441 X1997 FORD F150 10/5/2001 10,800.00 2,340.00 Xxxxxxx
X4x4 P/U TRUCK
Page 3 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
274 TK1769 X1997 FREIGHTLINER 5/29/2001 22,310.00 2,974.67 Xxxxx
X0XXX TRUCK
275 TK1769 X1997 FREIGHTLINER 5/29/2001 7,130.48 950.72 Xxxxx
X0XXX TRUCK
276 TK1773 X1997 INTERNATIONAL 10/5/2001 21,457.80 4,649.19 Raleigh
X4900 2TON TRUCK
277 TK1774 X1997 INTERNATIONAL 10/5/2001 20,172.00 4,370.60 Tampa
X4900 2TON TRUCK
278 TH3254 X2001 DAEWOO MINI TRACKHOE 5/29/2001 22,631.00 3,017.47 Xxxxxxx
279 AC4523 X1998 XXXXXXXXX XXXX 12/10/2001 5,814.10 - Tampa
P185 AIR COMPRESSOR
280 TH3255 X2001 DAEWOO SOLAR 1/8/2002 20,352.00 5,088.00 Tampa
MINI TRACKHOE
281 ET6009 X2001 XXXXXXXX 1/8/2002 2,279.00 569.76 Tampa
S6125T EQUIP TRAILER
282 ET6010 X2002 XXXXXX 1/25/2002 10,275.00 2,740.00 Xxxxx
XX000 EQUIP TRAILER
283 AC4527 X1998 XXXXXXXXX XXXX 2/1/2002 6,463.00 1,723.47 Xxxxxxx
P185 AIR COMPRESSOR
284 CT3165 HOMEMADE 2-REEL TRAILER 2/4/2002 900.00 - Tampa
285 ET6011 X2002 CUSTOM BORING TRAILER 3/4/2002 14,170.70 4,015.03 Tampa
286 DB3800 X2002 VERMEER 3/4/2002 116,066.30 - Tampa Vermeer
BORING MACHINE
287 parchem040 Parche 4/1/2002 5,863.33 - Tampa
288 DB3909-01 VERMEER 2440A 4/1/2002 3,552.82 - Tampa
BORING MACHINE REPAIR
289 ET6078 X2002 XXXXXX EQUIP TRAILER 4/10/2002 3,204.65 961.40 Raleigh
290 ET6012 X2002 XXXXXX EQUIP TRAILER 4/10/2002 3,204.65 961.40 Raleigh
291 ET6014 X2002 XXXXXX EQUIP TRAILER 4/10/2002 3,204.65 961.40 Tampa
292 DB3909-02 VERMEER 2440A 4/10/2002 3,056.54 - Tampa
BORING MACHINE REPAIR
293 BH4332 X1998 FORD 555E 4/16/2002 2,803.96 - Tampa
X4WD BACKHOE
294 FK5601 X1979 XXXXX C500Y 4/24/2002 4,912.06 - Tampa
X150 FORKLIFT
295 TK1730 X1998 FORD F800 2TON TRUCK 4/26/2002 2,842.13 - Tampa
296 TK1778 X2001 INTERNATIONAL 10/4/2002 60,016.30 24,006.53 Tampa Enterpise
X4400 2TON LOADER
297 TK1779 X2001 INTERNATIONAL 10/10/2002 60,016.30 24,006.53 Tampa Enterpise
X4400 2TON LOADER
298 DB3904 X2002 DITCH WITCH 9/23/2002 108,457.61 - Tampa Applied
JT1720 BORING MACHINE Financial
299 TM3372 X2002 DITCH WITCH 9/23/2002 30,295.72 - Raleigh Applied
X3700 TRENCHER Financial
300 DB3716 X2002 DITCH WITCH 9/23/2002 76,228.02 - Network Applied
JT920 BORING MACHINE Services Financial
301 DB3717 X2002 DITCH WITCH 9/23/2002 76,228.02 - Network Applied
JT920 BORING MACHINE Services Financial
302 DB3905 X2002 DITCH WITCH 9/23/2002 154,196.30 - Tampa Applied
JT1720 BORING MACHINE Financial
303 DB3906 X2002 DITCH WITCH 9/23/2002 140,655.57 - Tampa Applied
JT1720 BORING MACHINE Financial
304 TM3373 X2002 DITCH WITCH 9/23/2002 30,295.71 - Conyers Applied
X3700 TRENCHER Financial
305 TM3375 X2002 DITCH WITCH 9/23/2002 30,295.71 - Tampa Applied
X3700 TRENCHER Financial
306 TM3374 X2002 DITCH WITCH 9/23/2002 30,295.71 - Raleigh
X3700 TRENCHER
307 FK5618 Forklift 10/31/2002 16,671.68 463.10 Tampa
308 TR1602 X2003 FORD F450 3/31/2003 33,147.79 16,573.90 VNS Enterpise
X1TON TRUCK
309 BI5112 X2003 FORD F450 3/31/2003 32,875.37 16,437.70 Tampa Enterpise
X1TON TRUCK
310 TR1604 X2003 FORD F450 3/31/2003 33,290.89 16,645.44 Tampa Enterpise
X1TON TRUCK
311 TR1605 X2002 Ford F450 3/31/2003 33,290.89 16,645.44 Tampa Enterpise
X1 Ton Truck w/ 10' Flatbed
312 TR1606 X2002 Ford F450 3/31/2003 33,290.89 16,645.44 Tampa Enterpise
X1 Ton Truck w/ 10' Flatbed
313 TR1607 X2002 Ford F450 3/31/2003 32,875.37 16,437.70 Tampa Enterpise
X1Ton Truck w/ 10' Flatbed
314 TR1608 X2002 Ford F-450 3/31/2003 33,290.89 16,645.44 Tampa Enterpise
X1 Ton Truck w/ 10' Flatbed
315 F107-A Major Repair- 4/30/2003 5,899.70 1,147.17 Tampa
Xxxx Deere 644C F107
316 TM3356 Major Repair Kubota Engine 5/15/2003 4,777.66 929.00 Raleigh
317 TM3562-A Major Repair on Trencher 5/30/2003 3,288.95 730.86 Conyers
318 DB4026 Vermeer D33X44 Navigator 5/31/2003 207,173.01 110,492.28 Tampa Vermeer
319 DB4026-A Part for Vermeer DB4026 8/31/2003 2,928.75 894.90 Tampa
320 ET6071 Dump Trailer #20981 8/31/2003 6,218.57 3,627.51 Tampa Ge Capital #1
321 ET6073 Dump Trailer #20983 8/31/2003 6,218.57 3,627.51 Tampa Ge Capital #1
322 ET6074 Dump Trailer #209684 8/31/2003 6,218.57 3,627.51 Tampa Ge Capital #1
323 DB3909-03 VERMEER 2440 8/31/2003 11,504.68 3,515.33 Tampa
BORING MACHINE REPAIR
324 X820DW DRILL RODS 10/31/2003 6,247.48 2,256.05 Tampa
325 P0440-A Engine Repair work 11/30/2003 1,385.65 538.87 Raleigh
326 DZ4200 X1988 Caterpiller D4C Dozer 5/8/1989 59,594.00 - Tampa
327 CP4050 X1978 Xxxxxx DP60 Cable Plow 3/1/1982 22,500.00 - Tampa
328 FL4552 Front End Loader 8/1/1996 77,316.00 - Tampa
329 COMPUTER SERVER 2/18/1997 9,555.91 - Tampa
330 P0473 X1992 FORD F-150 P/U TRK 1/13/1995 8,650.00 - Conyers
332 TR1546 X1990 FORD F350 4/1/1990 14,523.00 - Chesapeake
333 TR1548 X1992 FORD F-350 8/25/1992 19,378.00 - Chesapeake
334 TR1549 X1992 FORD F-350 W/UB 9/3/1992 16,391.00 - Chesapeake
338 TR1575 X1993 FORD F-350 8/13/1993 20,452.00 - Tampa
339 TR1554 X1993 FORD F-350 W/UB 11/22/1993 21,622.00 - Chesapeake
340 TR1555 X1993 FORD F-350 W/UB 11/22/1993 21,622.00 - Chesapeake
341 TR1556 X1995 FORD F-350 W/UB 12/30/1994 24,108.00 - Chesapeake
342 TR1579 X1995 FORD F-350 W/UB 12/30/1994 23,929.00 - Tampa
344 TR1577 X1995 FORD F-350 W/UB 1/24/1995 24,110.00 - Tampa
346 TR1585 X1995 FORD F-350 W/UB 2/2/1995 24,110.00 - Conyers
347 P0485 PICKUP TRUCK 1997 GMC 1/2/1997 26,774.00 - Conyers
350 FB2004 X1984 FORD 4/1/1990 13,000.00 - Tampa
LN8000 FLATBED
352 FK5616 X1983 XXXXX FORKLIFT 4/1/1990 4,000.00 - Tampa
353 FB2005 X1989 FORD LN 8000 11/17/1993 65,867.00 - Tampa
BOOM AUGER TRK
354 CT2753 X1990 FORD F-800 BOOM TRK 1/1/1990 28,014.00 - Raleigh
356 CT2756 X1996 BOOM/AUGER TRUCK 2/21/1996 107,526.78 - Chesapeake
357 CT2765 X96 FORD FT-900D 4/8/1996 106,384.04 - Tampa
BOOM AUGER TRK
358 CT2761 X96 FORD FT-900D 4/8/1996 106,384.04 - Tampa
BOOM AUGER TRK
359 TK1793 X1985 FORD F-700 BOOM TRK 10/1/1989 20,652.00 - Chesapeake
361 BI5108 X93 FORD F700 BUCKET TRK 5/15/1996 38,185.00 - Raleigh
362 CRASH CUSHION 2/16/1995 7,408.00 - Tampa
363 PI7001 POST DRIVER-94 3/4/1997 69,000.00 - Chesapeake
INTERNATIONAL
364 PD8002 X1982 FORD LNT8000 4/1/1990 15,000.00 - Tampa
TEXOMA/STERLING
365 PD8000 X1998 vOLVO WG64 W/ DIGGER 9/18/1997 177,535.99 - Raleigh
366 TT2409 X1990 KENWORTH 5/19/1993 29,576.00 - Chesapeake
TRLR -MULTI REAR AXLE
369 ET6026 X1977 VULCAN LOWBOY 3/1/1987 6,876.00 - Tampa
SEMI TRLR
370 ET6026-A X1977 VULCAN LOWBOY 10/1/1989 6,822.00 - Tampa
371 ET6041 TRAILER 97 CHALLENGER 3/18/1997 22,686.55 - Chesapeake
372 TK1796 X1986 INTERNATIONAL 1/1/1986 0.01 - Chesapeake
373 MT4714 X1994 HMD SIGN 10/1/1995 2,570.00 - Tampa
TRLR -EQUIPMT 2 AXLE
374 MT4715 X1994 HMD SIGN 10/1/1995 2,570.00 - Tampa
TRLR -EQUIPMT 2 AXLE
375 ET6036 X1974 MIDMARK 10/1/1989 794.00 - Chesapeake
TRENCHER TRLR
376 ET6043 TRAILER TANDEM DUAL 4/10/1997 5,457.00 - Tampa
377 CT3151 X1985 HMD EQUIP 4/1/1984 1,758.00 - Chesapeake
TRLR - EQUIPMT 3 AXLE
Page 4 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
378 ET6063 X1996 XXXXXX 5/1/1996 5,307.00 - Conyers
TRLR -EQUIP 2AXLE DUAL TIRE
379 MT4703 X1987 XXXXXX EQPT 2/8/1991 500.00 - Chesapeake
X2 AXLE TR
380 TK1785 DUMP TRUCK REPAIR 3/4/1998 5,000.00 - Chesapeake
382 AC4537 X1989 XXXXXXXXX XXXX 2/12/1993 6,709.00 - Chesapeake
AIR COMPRESSOR
383 TR1591 X1995 FORD F-350 W/UB 12/30/1994 0.01 - Conyers
384 TM3453 X1981 DW 4010 TRENCHER 1/1/1989 0.01 - Chesapeake
386 CT3152 VACUUM TRAILER 1/23/1997 13,830.00 - Tampa
387 ST4850 ARROW BOARD 3/25/1993 3,941.00 - Chesapeake
388 ST4878 VMS BOARD 11/19/1993 19,855.00 - Tampa
389 FK5617 XXXXX FORKLIFT 1/1/1999 0.01 - Tampa
390 DT2604 X1986 GMC TOP KICK DUMP 12/8/1997 16,075.69 - Chesapeake
391 DT2609 X1985 FORD DUMP TRUCK 12/8/1997 14,213.67 - Tampa
392 PI7004 X1997 FORD TRK W/ POUNDER 2/26/1998 84,960.98 - Tampa
393 TR1554-A X12' FLATBED 3/4/1998 3,894.80 - Chesapeake
WITH HEADBOARD
394 FL4602 MELROE 853 BOBCAT 8/1/1998 18,038.75 - Chesapeake
395 FL4601 MELROE 853 BOBCAT 8/1/1998 18,038.75 - Tampa
396 Building - 7750 Professional Place 1/31/1998 800,000.00 493,333.12 Tampa
397 ET6042 Trailer Trail King 92' 3/31/1999 14,500.00 - Tampa
398 TT2407 X1993 Ford Tractor 3/31/1999 31,500.00 - Tampa
399 ST4854 Sunray 380 VMS 7/27/1999 18,590.00 - Chesapeake
400 ST4855 Sunray 380 VMS 7/27/1999 18,590.00 - Chesapeake
401 ST4856 Sunray 380 VMS 7/27/1999 18,590.00 - Chesapeake
402 ST4857 Sunray 380 VMS 7/27/1999 18,590.00 - Chesapeake
403 ST8824 Sunray 380 VMS 7/27/1999 18,590.00 - Chesapeake
404 ST4863 Sunray Arrowboard 15 9/1/1999 3,995.00 - Chesapeake
405 ST4864 Sunray Arrowboard 15 9/1/1999 3,995.00 - Chesapeake
406 P0456 X1999 GMC Sierra Pickup 10/29/1999 31,311.75 - Chesapeake
408 TR1559 X1996 FORD F-SUPER DUTY 6/5/1996 27,805.74 - Chesapeake
409 TR1560 X1996 FORD F-SUPER DUTY 6/5/1996 27,805.74 - Chesapeake
410 TR1561 X1996 FORD F-SUPER DUTY 6/5/1996 27,805.74 - Chesapeake
413 FB2000 X1990 IHC 4900 FLATBED 5/23/1996 17,205.00 - Chesapeake
414 TK1782 X1985 FORD F700 FLTBD DUMP 5/1/1990 5,500.00 - Chesapeake
416 TK1786 X1981 FORD FLTBD DUMP 9/20/1994 8,000.00 - Chesapeake
417 FB2002 X1987 INT'L FLTBD DUMP 12/21/1995 8,000.00 - Chesapeake
418 FB2003 X1989 IHC 1954 FLTBD DUMP 5/23/1996 15,485.00 - Chesapeake
419 TK1787 X1989 IHC 1954 FLTBD DUMP 5/23/1996 15,485.00 - Chesapeake
420 TK1791 X1992 FORD F600 12/22/1993 21,200.00 - Chesapeake
421 CT2763 X96 FORD FT-900D 4/8/1996 107,526.78 - Conyers
BOOM AUGER TRK
422 CT2757 X1996 BOOM/AUGER TRUCK 3/7/1996 103,201.77 - Chesapeake
423 BI5100 X1983 CHEVY C65 BUCKET 3/19/1993 18,550.00 - Chesapeake
425 BI5103 X1987 GMC 7000 BUCKET TRK 1/6/1994 24,840.00 - Chesapeake
426 TK1794 X1993 FORD F700 9/23/1993 27,711.00 - Chesapeake
427 TK1794-A POST POUNDER ON #3506 12/1/1993 4,766.00 - Chesapeake
428 PI7002 X1996 FORD LN8000 4/18/1997 87,150.00 - Chesapeake
W/POUNDER
429 P0460 X1997 FORD F150 TRUCK 6/10/1997 20,525.00 - Chesapeake
430 TR1600 X1998 GMC TC31403 P/U 10/10/1997 24,953.50 - Conyers
431 TM3698 DITCH WITCH TRENCHER 1/14/1994 49,959.00 - Chesapeake
432 X1994 MLR BCAT 225G WELDER 5/11/1994 2,456.00 - Chesapeake
433 AC4538 X1990 INERSOLL AIR COMP 5/13/1993 8,757.00 - Chesapeake
434 AC4539 XXXXXXXXX XXXX AIR COMP 11/1/1994 8,224.00 - Chesapeake
435 TARGET CONCRETE SAW 7/16/1993 7,524.00 - Chesapeake
000 XXXXXX XXXXXX SAW 7/16/1993 7,524.00 - Chesapeake
437 ST4874 ARROW BOARD 9/23/1994 4,441.25 - Conyers
438 ST4879 VMS BOARD 10/12/1994 20,308.50 - Tampa
439 ST4860 X1997 AMIDA ARROWBOARD 5/19/1997 4,382.76 - Chesapeake
440 ST4862 X1997 AMIDA ARROWBOARD 6/25/1997 4,382.76 - Chesapeake
441 ST4858 X1997 AMIDA ARROWBOARD 5/19/1997 4,382.77 - Chesapeake
442 MT4702 X1968 TOTEM EQPT 2AXLE TRLR 5/1/1990 1,000.00 - Chesapeake
443 ET6035 X1993 DW EQPT 2 AXLE TRLR 3/9/1994 5,296.00 - Chesapeake
444 ET6038 X1985 BLAME EQPT 3AXLE TRLR 5/1/1990 2,500.00 - Chesapeake
445 MT4709 X1996 HOOP TANDEM 8/8/1996 5,563.20 - Chesapeake
DUAL TRLR
446 ET6040 X1996 HOOP TANDEM 8/8/1996 5,563.20 - Chesapeake
DUAL TRLR
447 ET6039 TEXAS BRAGO-BKHOE TRLR 7/21/1997 3,200.00 - Chesapeake
449 FK5606 X94 CASE FRKLFT-ROUGH TERR 3/3/1998 24,557.50 - Chesapeake
450 X0000-00 Building - 925 Professional Place 4/30/1991 218,000.00 60,858.72 Chesapeake
451 TH3259 X1991 Yanmar B27- 4/1/2000 12,540.00 1,761.57 Chesapeake
X1 Mini Excavator
452 P0457 X2000 Chevy Silverado 5/11/2000 31,702.00 5,510.10 Chesapeake
453 BH4352 Model 55E New Holland TLB 6/29/2000 36,058.75 3,863.44 Tampa
454 BH4347 Model 000X Xxx Xxxxxxx XXX 6/29/2000 36,058.78 3,863.42 Chesapeake
455 Truck Mounted Attentuator 11/3/1999 10,335.05 - Tampa
456 Truck Mounted Attentuator 11/3/1999 10,335.05 - Tampa
457 Truck Mounted Attentuator 11/3/1999 10,335.05 - Tampa
458 A0106 X1999 Crown Victoria 5/21/1999 25,474.95 - Xxxxxxxx
000 XX0000 X2001 Solar Tech Arrow Board 7/26/2001 4,307.58 - Conyers
461 P0464 X2001 Chevy 1500 8/20/2001 20,615.28 3,779.44 Tampa
Ext Cab Pickup
462 P0484 X2001 Chevy 1500 8/20/2001 20,615.28 3,779.44 Conyers GMAC
Ext Cab Pickup
464 CT2755-A X1996 Ford FT-900-D 7/31/2001 24,184.75 4,030.78 Chesapeake
Boom Auger Truck
465 CT2756-A X1996 Boom Auger Truck 7/31/2001 26,848.05 4,474.68 Chesapeake
466 CT2757-A X1996 Boom Auger Truck 7/31/2001 23,742.74 3,957.12 Chesapeake
467 CT2756-B X1996 Ford FT-900D 7/31/2001 26,848.05 4,474.68 Chesapeake
Boom Auger Truck
468 CT2765-A X1996 Ford FT-900D 7/31/2001 24,184.75 4,030.78 Tampa
Boom Auger Truck
469 CT2761-A X1996 Ford FT-900D 7/31/2001 24,194.75 4,032.46 Tampa
Boom Auger Truck
470 PT4801 X2000 Rice Pole Trailer 1/2/2001 9,500.00 475.01 Conyers
471 PT4800 X2000 Rice Pole Trailer 1/1/2001 9,500.00 475.01 Chesapeake
472 CT2755 X1996 Ford FT-900D 4/8/1996 106,384.04 - Chesapeake
Boom Auger Truck
474 TR1592 X1995 Ford F350 5/17/2001 6,000.00 - Conyers
Water Truck D/7/11
475 TR1576 X1995 Ford F450 95 Super Duty 12/1/1999 8,000.00 - Conyers
476 TR1562 X1996 Ford F350 2/28/2000 16,000.00 - Chesapeake
X1 Ton Crew Cab 4x4
477 TR1563 X1995 Ford F350 2/10/2000 15,000.00 - Chesapeake
X1 Ton 4x4 Crew Cab
478 TR1564 X1996 Ford F350 8/15/2000 16,000.00 - Chesapeake
X1 Ton FLT Bed Two Winch
Page 5 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
479 DT2606 X1990 GMC Top Kick Dump Truck 6/27/2001 15,000.00 - Tampa
480 TK1798 X1989 GMC Top Kick Box Truck 1/30/2001 7,500.00 - Tampa
483 TK1799 X1991 GMC Top Kick 10/22/2000 9,000.00 - Chesapeake
Crash Cushion Trk
484 X1P0720 X1996 Ford F250 3/4 Ton PU 5/22/2000 7,000.00 - Conyers
485 TK1795 X1985 Ford F700 6/11/2001 19,568.00 - Chesapeake
Crash Cushion Truck
486 CT3150 X1977 Mill Rell Reel Wire Trailer 6/24/2000 1,000.00 - Chesapeake
487 X1997 Xxxxxx Dual Wheel 4/18/1997 5,000.00 - Tampa
Equipment Trailer
488 MT4707 X1991 Homemade Trailer 3 Axle 8/9/1996 6,000.00 - Chesapeake
489 TM3452 Ditch Witch Trencher 4/24/2001 7,000.00 - Tampa
490 TM3451 Ditch Witch Trencher 4/24/2001 6,000.00 - Tampa
491 TM3697 X1995 Ditch Witch 5110 Trencher 6/18/2001 8,500.00 - Chesapeake
492 TH3258 X1991 Yanmar B27- 4/1/2000 1,200.00 - Chesapeake
X1 Mini Excavator
493 TM3699 X1999 Vermeer Off Set Trencher 8/7/2000 68,000.00 - Chesapeake
494 AC4542 X1995 Sullair 185 Air Compressor 6/11/2001 3,000.00 - Conyers
495 PT4804 X1994 Pole Trailer 8/8/1996 5,000.00 - Chesapeake
Utility 1 Axle Trailer
496 ST4865 X2000 Display Solar Arrow Board 10/23/2000 3,995.00 - Raleigh
497 ST4866 X2000 Sunray Solar Arrow Board 10/23/2000 3,995.00 - Chesapeake
498 TH3260 X1996 Kubota KX-71 1/9/2001 18,862.25 1,257.49 Chesapeake
w/ 18FT Bucket
499 TR1546-A Truck Modification to Asset 1502 3/31/2002 3,488.40 - Chesapeake
502 TR1561-A New Transmission & PTO 3/31/2002 1,000.00 - Chesapeake
503 TR1562-A Equipment Added to 1724 3/31/2002 4,268.83 - Chesapeake
504 TR1562-B New Transmission & PTO 3/31/2002 2,315.39 - Chesapeake
for Asset 1724
505 TR1562-C Structural Change to Asset 3/31/2002 2,991.36 - Chesapeake
X1724/Boxtube/Ladder/Pipe Racks
507 TK1785-A Add MPS 350 Attenuator 4/30/2002 1,198.99 - Chesapeake
to Dump Truck
508 CT2760 X1995 Ford Crane 1/31/2002 47,829.10 12,754.43 Tampa
509 CT2760-A Boom Repair 4/30/2002 3,930.15 - Tampa
510 CT2753-A Boom Repair TC-110 4/30/2002 12,845.58 - Raleigh
511 CT2755-B New Dump Valve on CT2755 4/30/2002 3,291.11 - Chesapeake
512 CT2756-C New Rotec Bearing in 3/31/2002 9,280.78 - Chesapeake
Asset CT2756
513 TK1794-B Major Repairs on 3506 4/30/2002 5,246.96 - Chesapeake
514 PI7001-A Remanufactured Transmission 3/31/2002 3,564.17 - Chesapeake
515 Furniture for Virginia Office 3/31/2002 1,947.82 - Chesapeake
516 HP Pavillion ZT 1135 Laptop 4/30/2002 1,497.99 - Conyers
517 Toshiba Laptop 4/30/2002 5,438.92 - Chesapeake
518 HP Pavillion ZT 1135 Laptop 4/30/2002 1,583.10 - Chesapeake
519 HP Computer 4/30/2002 1,700.00 - Chesapeake
520 Toshiba Laptop 5/20/2002 2,032.96 - Conyers
521 Toshiba Laptop & Camcorder 6/30/2002 3,615.44 - Chesapeake
522 TH3258-A New Rubber Tracks for Asset 8254 3/31/2002 3,977.00 1,193.11 Chesapeake
523 PT4804-A Structural Repairs to Pole 3/31/2002 1,304.91 - Chesapeake
524 FK5605 Forklift - JCB Model #930 2/19/2002 24,557.50 6,957.97 Chesapeake
525 Truck Mounted Attentuator 4/30/2002 10,032.00 - Chesapeake
526 Truck Mounted Attentuator 4/30/2002 10,032.00 - Chesapeake
527 Truck Mounted Attentuator 4/30/2002 2,889.00 - Tampa
528 Table/Exec Desk 8/29/2002 2,800.00 - Conyers
X/File Cab for Conyers
529 Chairs for Xxxxxxx Office 8/29/2002 2,950.00 - Conyers
530 Telephone System for 8/29/2002 2,920.94 - Conyers
Xxxxxxx Office
531 TR1563-A Upgrade-Install Utility Body 9/30/2002 4,549.93 - Chesapeake
on Truck
532 X7311-00 EZ Software for Vehicle 9/30/2000 2,264.95 - Lakeland
Maintenance Planning
533 Notebook Computer 10/31/2002 2,712.47 75.34 Conyers
534 P0450 GE Cap Ford Ranger 5/15/2002 13,095.49 4,365.15 VNS Ge Capital #1
X4X2 R-2002 200001
535 P0451 GE Cap Ford Ranger 4X2R-2002 5/15/2002 13,095.49 4,365.15 Raleigh Ge Capital #1
536 P0449 GE Cap Ford Ranger 4X2 R-2002 5/15/2002 13,095.49 4,365.15 VNS Ge Capital #1
537 P0452 GE Cap Ford Ranger 5/15/2002 13,095.49 4,365.15 Network Ge Capital #1
X4X2 R-2002 #200004 Services
538 FB2009 GE Cap Ford F-350 5/23/2002 24,011.72 8,003.92 Network Ge Capital #1
Chassi-2002 #200005 Services
539 TR1570 GE Cap Ford F-450 7/17/2002 37,545.23 13,766.58 Tampa Ge Capital #1
Chassi-2002 #20006
540 TR1572 GE Cap Ford F-450 6/12/2002 38,088.79 13,331.07 Tampa Ge Capital #1
Chassi-2002 #20007
541 TR1571 GE Cap Ford F-450 6/12/2002 38,088.79 13,331.07 Tampa Ge Capital #1
Chassi-2002 #20008
542 TR1573 GE Cap Ford F-450 6/12/2002 38,088.79 13,331.07 Tampa Ge Capital #1
Chassi-2002 #20009
543 X1P0711 GE Cap Ford F-250 6/16/2002 25,911.77 9,069.14 Xxxxxxx Xx Xxxxxxx #0
X0X0 XX - 0000 XXXXX 200010 Services
544 TR1567 GE Cap Ford F-450 8/1/2002 39,625.59 15,189.80 Chesapeake Ge Capital #1
Chassi -2002 #200011
545 TR1566 GE Cap Ford F-450 6/24/2002 39,625.59 13,868.95 Chesapeake Ge Capital #1
Chassi-2002 #200012
546 TR1565 GE Cap Ford F-450 6/20/2002 39,492.09 13,822.23 Chesapeake Ge Capital #1
Chassi-2002 #200013
547 TR1568 GE Cap Ford F-450 6/20/2002 39,492.09 13,822.23 Chesapeake Ge Capital #1
Chassi-2002 #200014
548 Temporary Signals for Jobs 4/23/2002 42,260.85 - Chesapeake
549 X00002-VNS Fiber Splicing Equipment 3/7/2002 17,500.00 486.11 Network
Services
550 X00100-VNS Office Furniture 11/1/2001 5,000.00 - Network
Services
551 X00101-VNS Phone System 11/1/2001 5,000.00 - Network
Services
552 X00200-VNS CAD Software 11/1/2001 1,926.06 - Network
Services
553 X00201-VNS Computer Equipment 11/1/2001 34,990.00 - Network
Services
554 X00202-VNS Microstation Software - ATT Project 4/12/2002 4,795.00 133.20 Network
Services
555 X00204-VNS Toshiba Copier 8/1/2002 2,109.80 - Network
Services
556 BI5111 GE Cap Ford F-650 Chassi-2000 11/30/2002 64,060.90 3,558.95 Tampa Ge Capital #1
557 BI5104 GE Cap - Ford F-650 Chassi-2000 11/30/2002 71,358.30 3,964.35 Tampa Ge Capital #1
558 Compaq Computer & Printer 11/28/2002 1,640.58 91.15 Chesapeake
559 HP External DVD Burner for 11/28/2002 470.24 26.12 Chesapeake
Compaq Computer-Asset 665
560 TM3452-A Major Repair to 654233/6510 12/31/2002 10,288.35 857.36 Tampa
561 TM3575 Ditch Witch Trencher 3X0105 1/31/2003 64,665.20 7,185.02 Tampa
562 DT2609-A New Transmission for 1/17/2003 3,584.50 - Tampa
Truck #DT2609
563 X54 in Pressure Auger 2/28/2003 5,437.80 755.25 Chesapeake
564 Rebuilt Pounder Motor 1/31/2003 4,163.39 462.59 Chesapeake
565 PI7002-A Major Repair on 3/26/2003 5,045.40 840.90 Chesapeake
Hydraulic Control Valve
566 ET6025 Repair Frame on LowBoy Trailer 3/31/2003 4,817.93 802.99 Tampa
567 Computer System 3/31/2003 1,206.67 201.12 Chesapeake
X256MB XPH 15-XG
DVD w/ CDRW
568 Rebuilt Toshiba Computer 3/31/2003 438.19 73.05 Chesapeake
569 BU5011 Altec/2000 Ford F-450 4x2 chassis 3/31/2003 34,762.50 17,381.25 Raleigh Ge Capital #1
570 BU5012 Altec/2000 Ford F-450 4X2 CHASSIS 3/31/2003 34,762.50 17,381.25 Chesapeake Ge Capital #1
571 BI5115 X2001 Sterling Bucket Truck 4/30/2003 51,750.00 26,737.50 Chesapeake Ge Capital #1
w/ mt1 aerial device
572 BI5114 X2001 Sterling Bucket Truck 4/30/2003 55,372.50 28,609.13 Tampa Ge Capital #1
Aerial Device
573 IBM 17Blk LCD Monitor" 4/18/2003 676.38 131.52 Network
Services
Page 6 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
574 X55N5283 IBM 17 Blk LCD Monitor" 4/18/2003 676.39 131.53 Network
Services
575 Compaq Tablet Computer 4/18/2003 2,040.15 396.70 Network
Services
576 Compaq Tablet Computer 4/18/2003 2,040.14 396.70 Network
Services
577 Compaq Tablet Computer 4/18/2003 2,040.14 396.70 Network
Services
578 Compaq Tablet Computer 4/18/2003 2,040.14 396.70 Network
Services
579 Bobcat Welder 4/21/2003 2,978.25 1,538.76 Chesapeake
580 DT2609-01 Rebuilt Engine for Dump Truck 5/24/2003 6,761.07 3,605.92 Tampa
581 X1P0722 X2003 F250 Truck for Mesh 5/31/2003 32,312.93 17,233.54 VNS
Demo TrailerYP2011
582 Ice Machine with Bin 5/30/2003 2,876.29 639.18 Chesapeake
583 BI5116 X2001 Sterling Bucket Truck 5/31/2003 57,031.00 30,416.54 Tampa Ge Capital #1
GE95447
584 BI5117 X2001 Sterling Bucket Truck 5/31/2003 53,300.00 28,426.67 Chesapeake Ge Capital #1
GE95455
585 X200011-01 Increase of Acq Value 11/1/2002 1,000.00 416.67 Chesapeake Ge Capital #1
for GE Cap 200011
586 X200012-01 Increase of Acq Value 11/1/2002 1,000.00 416.67 Chesapeake Ge Capital #1
for GE Cap 200012
587 X200013-01 Increase of Acq Value 11/1/2002 1,000.00 416.67 Chesapeake Ge Capital #1
for GE Cap 200013
588 X200014-01 Increase of Acq Value 11/1/2002 1,000.00 416.67 Chesapeake Ge Capital #1
for GE Cap 200014
589 BU5010 X2000 Ford F-450 GE Cap 1170 3/31/2003 33,750.00 16,875.00 Raleigh Ge Capital #1
590 TM3697-A Custom Made Digging Chain 5/31/2003 2,422.21 538.28 Chesapeake
591 HP LaserJet 8150N 6/30/2003 399.22 99.80 Tampa
592 Benq DS650 Digital Projector 6/30/2003 1,645.88 411.45 Chesapeake
593 BI5117-A X2001 Sterling Bucket Truck 6/30/2003 204.75 112.62 Chesapeake Ge Capital #1
GE95455
594 BI5116-A X2001 Sterling Bucket Truck 6/30/2003 219.08 120.49 Tampa Ge Capital #1
GE95447
595 BI5114-A X2001 Sterling Bucket Truck 6/30/2003 1,658.50 912.18 Tampa Ge Capital #1
Aerial Device #95453
596 BI5115-A X2001 Sterling Bucket Truck 6/30/2003 1,925.00 1,058.76 Xxxxxxxxxx Xx Xxxxxxx #0
Xxxxxx Xxxxxx #00000
597 BU5012-A X2000 Ford F-450 4x2 6/30/2003 1,133.00 623.16 Raleigh Ge Capital #1
Chassis #8819
598 BU5010-A X2000 Ford F-450 #1170 6/30/2003 1,100.00 605.01 Xxxxxxx Xx Xxxxxxx #0
000 Xxxxxx Xxx Xxxxx Xx000 4/30/2003 2,942.50 1,520.30 Xxxxx
000 Spreader Sets 4/30/2003 12,957.70 6,694.82 Chesapeake
601 Ice Machine 7/31/2003 2,417.13 1,369.70 Tampa
602 Replace curb and ditch paving 7/31/2003 3,531.49 2,001.16 Tampa
603 Mesh Network Trailer 7/31/2003 49,359.45 27,970.36 Network
Services
604 X2 Computers for Mesh 6/30/2003 2,835.50 708.87 Network
TP X00 X0x0.0XXX Services
605 X1P0723 X2003 Ford F250 7/31/2003 37,363.15 21,172.44 Xxxxxxx Enterpise
Enterprise YP2099
606 TR1609 X2003 Ford F350 Crew Cab 7/31/2003 37,098.94 21,022.73 VNS Enterpise
EnterpriseYP2094
607 TR1611 2003 Ford F350 Crew Cab 7/31/2003 37,098.94 21,022.73 Xxxxxxx Enterpise
Enterprise YP2095
608 TR1610 X2003 Ford F350 Crew Cab 7/31/2003 35,971.05 20,383.60 Xxxxxxx Enterpise
Enterprise YP2096
609 TR1612 X2003 Chevrolet Astro Van 7/31/2003 22,201.98 12,581.12 VNS Enterpise
Enterprise YP2101
610 bu5011-A X2000 Ford F-450 4x2 chassis #7871 6/30/2003 1,308.10 719.46 Raleigh Ge Capital #1
611 X200006-A X2002 Ford F-450 GE Cap 200006 7/31/2003 1,023.75 580.13 Tampa Ge Capital #1
612 X200007-A X2002 Ford F-450 GE Cap 200007 7/31/2003 1,034.63 586.29 Tampa Ge Capital #1
613 X200008-A X2002 Ford F-450 GE Cap 200008 7/31/2003 1,034.63 586.29 Tampa Ge Capital #1
614 X200009-A X2002 Ford F-450 GE Cap 200009 7/31/2003 1,034.63 586.29 Tampa Ge Capital #1
615 X200011-A X2002 Ford F-450 GE Cap 200011 7/31/2003 1,067.51 604.93 Chesapeake Ge Capital #1
616 X200012-A X2002 Ford F-450 GE Cap 200012 7/31/2003 1,067.51 604.93 Chesapeake Ge Capital #1
617 X200013-A X2002 Ford F-450 GE Cap 200013 7/31/2003 1,064.84 603.41 Chesapeake Ge Capital #1
618 X200014-A X2002 Ford F-450 GE Cap 200014 7/31/2003 1,064.24 603.07 Chesapeake Ge Capital #1
619 X717913-A X2000 Ford F-650 GE Cap 717913 7/31/2003 1,554.07 880.66 Tampa Ge Capital #1
620 X71801-A X2000 Ford F-650 GE Cap 71801 7/31/2003 1,700.02 963.36 Tampa Ge Capital #1
621 bu5010-B X2000 Ford F-450 GE Capital 7/31/2003 1,020.00 578.00 Raleigh Ge Capital #1
622 cISC cATALYST 295OT 8/26/2003 1,969.72 601.87 Xxxxxxx
X00 XXXX XXXXXX (Qty2) Services
623 DD2708 X2000 4700IHC 9/30/2003 75,675.75 45,405.46 Tampa Ge Capital #1
Dangle Digger #268110
624 Hdyd Jacks 8/31/2003 7,420.46 4,328.61 Chesapeake
625 P0500 X2003 Ford F-150 8/31/2003 34,194.64 19,946.88 Xxxxxxx Enterpise
Enterprise YP2113
626 TR1576-A Rebuit Trans & New Cluch 10/31/2003 2,121.28 766.03 Xxxxxxx Enterpise
627 Satellite Equip for Wireless 10/8/2003 6,409.00 2,136.34 Network
Internet on Demo Trailer Services
628 CT2765-B Repairs for CT2765 10/31/2003 11,843.62 4,276.87 Tampa
629 Analyze-R Tool 10/31/2003 10,495.00 3,789.87 Network
Services
630 3500psi Presure Washer 11/30/2003 1,410.74 548.62 Chesapeake
631 Air Compressor/185CFM 11/30/2003 4,911.50 1,910.03 Chesapeake
X/DSL/Portable
632 BU5014 X1999 International w/ Bucket 12/31/2003 80,984.00 52,639.61 Tampa Ge Capital #2
633 DD2709 X2002 Digger Xxxxxxx 12/31/2003 80,155.40 52,101.02 Raleigh Ge Capital #2
Tel - E Lect 4300
634 Ice Machine 12/31/2003 2,533.16 1,646.56 Tampa Ge Capital #2
635 Ice Machine 12/31/2003 2,533.16 1,646.56 Tampa Ge Capital #2
636 Ice Machine 12/31/2003 2,533.16 1,646.56 Tampa Ge Capital #2
637 Ice Machine 12/31/2003 2,533.16 1,646.56 Tampa Ge Capital #2
638 Ice Machine 12/31/2003 2,533.16 1,646.56 Tampa Ge Capital #2
639 GPS Unit 12/31/2003 19,671.95 12,786.77 Network Ge Capital #2
Services
640 X2003 NTSC Digital Generator 12/31/2003 21,881.50 14,222.98 Chesapeake Ge Capital #2
Optical Power Meter &
Video Measurement Set
641 CT2766 X2002 Sterling w/ Crane 12/31/2003 156,391.05 101,654.18 Chesapeake Ge Capital #2
642 CT2767 X2002 Sterling w/ Crane 12/31/2003 123,836.00 80,493.41 Chesapeake Ge Capital #2
643 Torque Cassette 1/31/2004 1,737.27 1,158.19 Chesapeake
644 AC5301 Air Compressor 185CFM 2/1/2004 5,337.09 3,558.07 Xxxxxxxxxx Xx Xxxxxxx #0
Xxxxxxxx X000XXX
645 AC5302 Air Compressor 185CFM 2/1/2004 5,464.76 3,643.18 Xxxxxxxxxx Xx Xxxxxxx #0
Xxxxxxxx X000XXX
646 LT8050 Xxxxxxx MH4000RL 2/29/2004 2,910.33 1,988.73 Chesapeake
X4000 Watt Light Tower
647 LT8051 Xxxxxxx MH4000RL 2/29/2004 3,014.82 2,060.13 Chesapeake
X4000 Watt Light Tower
648 Torque Wrench Pump 2/29/2004 7,403.88 5,059.32 Chesapeake
649 PD8002-A Radiator Repairs for PD8002 2/29/2004 1,891.24 893.09 Tampa
651 Fujikura Fusion Splice FSM40S 2/29/2004 17,572.50 12,007.88 Network
Services
652 ThinkPad T23 - PIII 3/31/2004 1,857.12 928.56 Network
Services
653 TR1623 F-450 Utility Crew Cab Truck 4/30/2004 40,727.79 29,188.25 Chesapeake Ge Capital #1
654 TR1613 F-450 Utility Crew Cab Truck 4/30/2004 40,811.96 29,248.56 Chesapeake Ge Capital #1
655 TR1614 F-450 Utility Crew Cab Truck 4/30/2004 40,798.67 29,239.05 Chesapeake Ge Capital #1
656 TR1615 F-450 Utility Crew Cab Truck 4/30/2004 41,167.18 29,503.13 Tampa Enterpise
657 TR1616 F-450 Utility Crew Cab Truck 4/30/2004 41,167.18 29,503.13 Tampa Enterpise
658 TR1617 F-450 Utility Crew Cab Truck 4/30/2004 41,167.18 29,503.13 Tampa Enterpise
659 TR1618 F-450 Utility Crew Cab Truck 4/30/2004 41,167.18 29,503.13 Tampa Enterpise
660 TR1621 F-450 Utility Crew Cab Truck 4/30/2004 39,628.22 28,400.23 Raleigh Enterpise
661 TR1622 X2004 Ford Super Duty 6/30/2004 39,628.22 29,721.17 Raleigh Enterpise
F-450 DRW Crew Cab 200
662 A0118 X2004 Infiniti QX56 6/30/2004 61,585.20 46,188.89 Lakeland Ge Capital #1
663 TR1620 F-450 Utility Body Trucks 6/30/2004 40,764.38 30,573.28 Raleigh Ge Capital #1
Crew Cab
664 TR1619 F-450 Utility Body Truck 6/30/2004 40,812.15 30,609.12 Raleigh Ge Capital #1
Crew Cab
Page 7 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
665 VT2256-A Xxxxx 25HP Command V 7/1/2004 1,751.43 1,021.68 Tampa
666 TR1540-A Rebuilt Transmission 7/31/2004 2,845.69 1,739.04 Tampa
667 Phone for VMC Lakeland 8/31/2004 12,481.80 7,974.49 Lakeland Avon
Equipment
Leasing
668 BI5112-A Refurbished boom lift body 8/31/2004 12,780.00 8,165.00 Tampa
and made repairs
669 Toshiba Fax 8/31/2004 1,172.57 749.15 Tampa
670 Trench Box 1/31/2004 6,008.75 2,670.54 Chesapeake
671 PP7519 X2004 JLG E400A Boom Lift 8/31/2004 36,674.94 28,728.69 Albany AMEX/Key
Equipment
672 PP7520 X2004 JLG E400A Boom Lift 8/31/2004 36,462.94 28,562.64 Albany AMEX/Key
Equipment
673 PP7517 X2004 JLG Model 2646 8/31/2004 12,930.94 10,129.24 Albany AMEX/Key
Scissor Lift Equipment
674 PP7518 X2004 JLG Model 2646 8/31/2004 12,930.94 10,129.24 Albany AMEX/Key
Scissor Lift Equipment
675 TH3253-A Repairs for TH3253 8/31/2004 2,849.12 1,820.27 Tampa
676 CT2760-B Crane Truck Repairs 8/31/2004 2,789.51 1,782.19 Tampa
677 NSD F&F for new office 8/31/2004 9,069.90 5,794.67 Network
Services
678 X2000 Ford F450 Altec LGS 8/31/2004 31,030.00 24,306.84 Xxxxxxx
679 BI5112-B Increase Value from BI5105 9/1/2004 8,966.67 5,728.71 Tampa Enterpise
680 Transport fees for trucks to VA 9/30/2004 12,800.00 8,533.32 Chesapeake
681 Sony A190 Laptop 9/30/2004 3,247.37 2,164.90 Network
Services
682 TR1583-A Repairs for 1997 Ford F250 Pickup 9/30/2004 1,190.00 793.32 Xxxxxxx
683 DD2710 X1990 Ford F800w/ an 9/30/2004 30,652.00 24,521.59 Conyers Fayette
Altec D845 Digger Xxxxxxx Financial,
Inc/Netbank
684 CT2765-C Repairs to CT2765 10/31/2004 1,363.19 946.66 Tampa
685 ET6015 X2002 Belshe Equipment Trailer 8/1/2004 1,709.15 1,044.48 Tampa
000 Xxxxxxxxxxxx XXXX 10/31/2004 6,889.96 5,626.81 Network
Rx for 802.11b/g networks Services
687 Ekahau Site Survey Software 10/31/2004 4,360.10 3,027.85 Network
Services
688 Econ 3500 Watt Generator 10/31/2004 1,111.94 772.18 Tampa
689 Estimating Software 10/31/2004 2,650.00 1,840.29 Xxxxxxxx
000 Xxxxxx Box 10/31/2004 9,256.03 7,559.09 Chesapeake
691 X4000 Watt Yamaha Generator 10/31/2004 1,498.00 1,223.37 Tampa
692 X4000 Watt Yamaha Generator 10/31/2004 1,498.00 1,223.37 Tampa
693 CT2751 X1981 Ford F7000 Boom Truck 5/1/1990 8,000.00 - Chesapeake
696 ET6027 X40' GREAT DANE TRAILER 5/1/1983 500.00 - Chesapeake
697 MT4717 POLE TRLR XXXX'X 7/30/1987 4,982.25 - Raleigh
698 ET6051 XXXX BTS 52 TRAILER 1/4/1990 2,831.00 - Xxxxxxx
699 SR4888 ARROW BOARD 2/28/1990 3,519.77 - Xxxxxxx
700 ST4872 ARROW BOARD 7/3/1989 3,547.78 - Xxxxxxx
701 P0403 X90 GMC P\U TC10903 3/15/1991 15,298.44 - Tampa
702 PD8004 X1984 FORD / TEXOMA BOOM 4/26/1991 25,440.00 - Raleigh
703 BU5008 X1989 FORD BUCKET TRK 4/26/1991 19,080.00 - Xxxxxxx
704 AC4544 X185 CFM SULAIR COMP. 8/2/1990 11,130.00 - Tampa
705 AC4548 X185 CFM SULAIR COMP. 8/2/1990 11,130.00 - Raleigh
706 AC5300 X185 CFM SULAIR COMP. 8/2/1990 11,130.00 - Xxxxxxx
707 AC4540 Sullair 185Q Compressor, 8/4/1990 11,130.00 - Xxxxxxx
XX 004-104825,
Xxxx Deere diesel engine,
hour meter re
708 AC4541 X185 CFM SULAIR COMP. 8/8/1990 11,130.00 - Xxxxxxx
709 PP7500 GROVE MZ 46-A MANLIFT 9/17/1990 16,235.70 - Albany
710 TK1797 X89 FORD LOOP TRUCK 9/30/1991 33,920.00 - Chesapeake
711 FK5610 XXXXXX TY3605 LIFT TRUCK 5/13/1992 49,290.00 - Albany
712 FK5611 TCM MODEL FG40N7T LIFT 3/19/1993 31,858.42 - Albany
713 X3 BOBCAT 225G WELDERS 8/12/1992 7,950.00 - Albany
714 DT2501 X93 GMC 9 FT FLATBED DUMP 7/15/1993 21,749.80 - Chesapeake
715 DT2503 X93 GMC 9 FT FLATBED DUMP 7/28/1993 22,704.86 - Raleigh
716 FB2017 X94 GMC 4x4 TK10753 P/U 9/10/1993 22,301.00 - Xxxxxxx
717 TK1800 X90 GMC TOPKICK - USED 2/10/1994 12,208.00 - Raleigh
718 BU5001 X1984 FORD 35FT HI-RANGER 6/28/1994 15,900.00 - Xxxxxxx
719 BU5009 X1984 FORD 35FT HI-RANGER 6/28/1994 13,780.00 - Xxxxxxx
720 TM3696 X1989 VERMEER V7550 TRENCH 6/30/1994 35,881.00 - Chesapeake
721 ET6052 X1972 XXXXXX VAN TRAILER 10/12/1994 2,800.00 - Xxxxxxx
722 TK1800-A MOUNT FLATBED ON TRK 215 8/31/1994 5,721.88 - Raleigh
723 PP7501 UPRIGHT SCISSOR MX19 LIFT 1/4/1995 11,287.50 - Albany
724 PP7502 UPRIGHT X26N SCISSOR LIFT 1/4/1995 15,750.00 - Albany
725 X926-A X10' extendtion Xxxxxx Trl 1/31/1995 6,750.55 - Xxxxxxx
726 PP7504 UPRIGHT SCISSOR X-26N 4/10/1995 16,253.00 - Albany
727 PP7505 UPRIGHT SCISSOR X-26N 4/10/1995 16,254.00 - Albany
728 PP7506 UPRIGHT SCISSOR X-26N 4/10/1995 16,253.00 - Xxxxxx
000 XX0000 XXXXX AP206 CRANE 5/26/1995 48,230.00 - Albany
731 P0444 X1995 GMC TK10753 XXXX/QKS 7/5/1995 26,037.50 - Tampa
732 FL4603 X1986 CASE 1845C BACKHOE 7/27/1995 9,698.40 - Raleigh
733 BH4351 X1986 XXXX DEERE 710B 4X4 7/27/1995 25,598.40 - Raleigh
734 BH4350 X1988 XXXX DEERE 410C 7/27/1995 17,118.40 - Xxxxxxx
735 PP7506-A X1988 LIFT-A-LOFT MSP31-15 7/27/1995 6,558.00 - Xxxxxxx
737 DT2613 X1995 DODGE 3500 - 9/14/1995 26,840.00 - Xxxxxxx
X1 ton Dump Truck
739 FK5612 NISSAN C80KLP FORKLIFT 10/25/1995 29,619.00 - Albany
740 PP7509 UPRIGHT SCISSOR MX19 LIFT 9/26/1995 11,395.00 - Albany
741 PP7510 UPRIGHT SCISSOR X26N LIFT 9/26/1995 15,794.00 - Albany
000 XXXXX XX0000 COPIER 10/27/1995 7,829.00 - Albany
743 P0467 X1995 GMC 4X4 GREEN P/U 11/13/1995 26,991.50 - Tampa
744 FK5613 Caterpillar T1250 Frklft 12/13/1995 18,020.00 - Xxxxxx
000 XX0000 XXX BOOM LIFT 33HAE,DC 4/3/1996 16,430.00 - Xxxxxx
000 XX0000 XXX BOOM LIFT 33HAE,DC 4/3/1996 16,430.00 - Xxxxxx
000 XX0000 XXX BOOM LIFT 33HAE,DC 5/1/1996 16,430.00 - Albany
748 TM3461 VERMEER V4750 TRENCHER 8/17/1996 33,390.00 - Raleigh
749 TK1775 X96 GMC WITH 14' FLATBED 8/27/1996 39,888.47 - Xxxxxxx
750 A0109 X96 GMC XXXXXXXXX XX00000 8/27/1996 42,060.50 - Network
Services
751 A0116 X96 GMC YUKON TK10516 9/13/1996 30,856.84 - Albany
752 TM3696-A BACKHOE FOR 1916 VERMEER 1/8/1997 9,858.00 - Chesapeake
753 ET3098 X1810 CUSTOM TRLR 5T162CED 2/28/1997 3,975.00 - Tampa
754 TT2406 X93 FREIGHTLINER FLD12064S 3/26/1997 29,680.00 - Xxxxxxx
755 TT2408 X1993 FREIGHTLINER TRACTOR 5/1/1997 29,680.00 - Xxxxxxx
756 PD8001 X1992 GMC TOPKICK 5/20/1997 13,992.00 - Tampa
757 TR1590 X97 GMC 1 ton serv trk 9/11/1997 25,799.00 - Raleigh
758 ET6062 XXXXXX XX 9549 NAVIG TRLR 9/2/1997 9,201.25 - Raleigh
759 TR1593 X98 GMC TC31403 SERV BODY 10/7/1997 26,564.99 - Tampa
Page 8 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
760 TR1574 X98 GMC TC31403/SERV BODY 10/7/1997 26,564.99 - Tampa
761 FB2012 X98 GMC TC31403/FLTBD DUMP 10/7/1997 29,223.86 - Chesapeake
762 DT2612 X98 GMC TC31403/FLTBD DUMP 10/7/1997 29,223.86 - Xxxxxxx
764 P0493 X1998 GMC P/U TK10753 12/22/1997 26,300.00 - Xxxxxxx
765 TR1586 X1998 GMC WHITE TC31403 PU 2/5/1998 27,458.25 - Raleigh
766 X1P0718 X1994 CHEVY RED CC20903 PU 2/6/1998 9,799.40 - Xxxxxxx
767 TR1589 X1998 GMC WHITE TC31403 PU 2/16/1998 27,458.25 - Raleigh
768 P0446 X98 GMC SIERRA Z-71 IND BL 2/19/1998 28,235.73 - VNS
769 P0480 X98 GMC SIERRA Z-71 WHITE 2/19/1998 27,612.63 - Raleigh
770 P0481 X98 GMC SIERRA Z-71 RED 2/19/1998 28,333.72 - Raleigh
771 P0482 X1995 GMC P/U TC10903 BURG 3/12/1998 10,583.69 - Raleigh
772 ET6057 SUNRAY ARROW BOARD 15/25 3/30/1998 4,274.65 - Raleigh
773 ST4889 SUNRAY ARROW BOARD 15/25 3/30/1998 4,274.65 - Xxxxxxx
774 DT2603-A NEW DIESEL ENGINE 6/16/1998 7,738.73 - Xxxxxxx
FOR 1985 FORD LN7000
DUMP TRUCK
775 ST4883 XXXXX SOLAR ARROWBOARD 8/20/1998 2,435.63 - Chesapeake
X(USED)
776 PP7516 X1996 HYDRA PLATFORM 10/14/1998 54,570.00 - Chesapeake
HP 30/180 UNDERBRIDGE DEVICE,
X1000 LB CAPACITY
777 BI5113 X1989 FORD F-800 10/21/1998 37,516.75 - Xxxxxxx
w/HI-RANGER 5FA-48PBI
778 A0103 X1998 FORD E-150 4/13/1998 20,531.28 - Tampa
Cargo Xxx - Xxxxx
779 DB3909 VERMEER D24x40A NAVIGATOR 5/13/1998 200,172.17 - Tampa
BORING MACH-
W/ 125 HP CUMMINS DIESEL
780 CT2764 X1994 FORD CRANE TRK 7/31/1998 49,150.00 - Xxxxxxx
w/ 20' BED & 61' BOOM
781 XXXXXXX P-88 SMALL LINE 10/8/1998 15,801.82 - Xxxxxxx
CONCRETE PUMP
782 FB2016 X1996 FORD 1 TON DIESEL 2/25/1998 20,000.00 - Xxxxxxx
X5 SPEED MANUAL TRANS
783 DT2608 X1996 FORD DUMP TRUCK 2/25/1998 36,500.00 - Xxxxxxx
784 TR1581 X1997 FORD F-SUPER 2/25/1998 22,000.00 - Xxxxxxx
X1 TON DIESEL 5 SPEED TRANS
785 ET6030 X1997 INTERSTATE TRAILER, 2/25/1998 8,500.00 - Xxxxxxx
GOOSENECK HOOKUP,
TANDEM AXLE
786 BH4353 X1997 FORD/NEW HOLLAND 2/25/1998 44,000.00 - Chesapeake
LOADER BACKHOE
787 TR1599 X1997 FORD F-350XL - 2/25/1998 25,000.00 - Chesapeake
POWER STROKE DIESEL
788 TR1583 X1997 FORD F-350XL SUPER CAB 2/25/1998 25,000.00 - Xxxxxxx
POWER STROKE DIESEL,
X5 SPEED MANUAL TRANS
789 TR1578 X1997 FORD F-350XL 2/25/1998 25,000.00 - Tampa
X4 DR SUPER CAB
POWER STROKE DIESEL,
AUTO TRANS
790 FL4604 X1996 SKID STEER LOADER, 2/25/1998 45,000.00 - Raleigh
MELROE BOBCAT W/FRONT END
LOADER BUCKET
791 DD2707 X1982 INTERNATIONAL 2/25/1998 18,000.00 - Xxxxxxx
HARVESTER DIGGER-XXXXXXX
TRK, AUTO TRANS
792 TR1582 X1997 FORD F-350XL 2/25/1998 22,000.00 - Xxxxxxx
X4DR SUPER CAB, DIESEL, A/C ,
X5 SPEED MANUAL TRANS
793 TM3461-A X1996 VERMEER V3550 2/25/1998 30,000.00 - Raleigh
TRENCHER/BACKHOE
W/HYD PUSH BLADE
794 TM3462 X1997 VERMEER V3550 2/25/1998 35,000.00 - Xxxxxxx
TRENCHER/BACKHOE
W/HYD PUSH BLADE
795 AC4549 LEROI AIR COMPRESSOR - 2/25/1998 11,500.00 - Chesapeake
DIESEL ENGINE
796 TR1594 X1997 FORD F-350XL 2/25/1998 25,000.00 - Xxxxxxx
X4DR SUPER CAB,
DIESEL, 5 SPEED, A/C
797 TR1596 X1997 FORD F-350XL 2/25/1998 22,000.00 - Raleigh
X4DR SUPER CAB,
DIESEL, A/C,CRUISE
798 P0476 X1996 FORD F-150XL 2/25/1998 15,000.00 - Raleigh
EXTENDED CAB, AUTO TRANS,
A/C, CRUISE, TOOL BOX
799 ET6044 X1996 XXXXXX TRI-AXLE 2/25/1998 2,700.00 - Tampa
TRAILER W/FOLDDOWN RAMPS
800 TR1601 X1997 FORD F-350XL KING CAB, 2/25/1998 22,000.00 - Xxxxxxx
DEISEL, MANUAL 5-SPEED
802 FK5604 X1990 HYSTER S50XL FORKLIFT, 2/25/1998 8,000.00 - Chesapeake
OVERHEAD GUARD, TRIPLEX MAST
803 TR1541 X1996 FORD F-SUPER DUTY, 2/25/1998 14,000.00 - Tampa
DIESEL, MANUAL 5-SPEED, DUAL
REAR TIRES
804 TR1598 X1996 FORD F-SUPER DUTY, 2/25/1998 15,000.00 - Chesapeake
DIESEL, MANUAL 5-SPEED,
DUAL REAR TIRES
805 P0472 X1995 FORD F-150XL EXT CAB, 2/25/1998 12,000.00 - Xxxxxxx
GAS ENGINE
806 ST4876 ALLMAND BROS. SOLAR PWR 2/25/1998 4,500.00 - Chesapeake
ARROW BOARD
807 TK1767 X1996 FORD F-SERIES, 2/28/1998 15,000.00 - Tampa
DEISEL, 6-SPEED FL MTD TRANS,
W/LECOLIFT BED
808 TR1542 X1992 DODGE RAM 1-TON 2/25/1998 12,000.00 - Tampa
X350LE P/U W/CUMMINS
DIESEL ENG, 2 WINCHES
809 TM3695 X1996 VERMEER 2/25/1998 60,000.00 - Xxxxxxx
V8550 TRENCHER
810 TR1540 X1996 FORD F-SUPER DUTY 2/25/1998 15,000.00 - Tampa
P/U, DIESEL, 5-SPEED,
10' BED, DUAL REAR TIRES
811 DT2607 X1996 FORD F-SERIES 2/25/1998 36,500.00 - Xxxxxxx
DUMP TRK, DIESEL,
6-SPEED TRANS, 10' DUMP BODY
812 TR1597 X1997 FORD F-350XL 2/25/1998 22,000.00 - Tampa
KING CAB, DIESEL,
X5-SPEED TRANS
813 ET6031 X1997 NATIONAL 2/25/1998 4,200.00 - Xxxxxxx
X32' FLATBED TRAILER,
GOOSENECK
814 FB2010 X1997 FORD F-SUPER DUTY 2/25/1998 20,000.00 - Xxxxxxx
DIESEL, 5 SPEED,
DUEL REAR TIRES, 8' BED
815 P0438 X1995 FORD F-150XL 2/25/1998 12,000.00 - Tampa
EXT CAB, FLAT BED, AUTO TRANS.
816 ET6061 XXXXXX 24' TRAILER 2/25/1998 2,500.00 - Raleigh
818 P0487 X1999 GMC C15 FU M318 11/19/1998 31,704.33 - Chesapeake
PICKUP TRUCK - DARK RED
819 P0442 X1999 Chevrolet CK15753 P/U 12/2/1998 33,666.88 - Tampa
820 X1999 GMC SLT 4X4 12/9/1998 30,600.00 - Xxxxxxx
P/U Ex-Cab -Black
821 P0466 X1999 CHEVROLET SILVERADO - 12/22/1998 29,777.31 - Tampa
XX XXXXXX
000 XX0000-X Replace Transmission on 1/14/1999 3,633.91 - Xxxxxxx
Freightliner # 611
823 ET6052 Fabricated REEL Trailer 1/5/1999 4,500.00 - Xxxxxxx
824 ET6058 AMIDA SOLAR POWERED 2/1/1999 4,691.21 - Raleigh
TRLR MNT 15 LIGHT
ARROW BOARD
825 ET6059 AMIDA ARROW BOARD - 2/1/1999 4,691.21 - Raleigh
X15 LIGHT SOLAR POWERED
TRLR MOUNT
826 P0486 X1999 GMC TK15753 3/23/1999 32,401.01 - Xxxxxxx
Black Z71 SLT P/U
827 P0495 X1999 GMC Model# TK15753 4/6/1999 30,696.71 - Xxxxxxx
Z-71 4 Wheel Drive -
White with Beige trim
828 P0461 1999 GMC Model# TK15753 4/14/1999 30,679.78 - Albany
Z-71 4 wheel drive - White Ext Cab
829 Compaq Armada 1700 5/10/1999 3,100.86 1,111.13 Albany
XXXX/000 XXX
000 Xxxxxx Xxxxxx 0000 5/25/1999 3,167.39 - Raleigh
XXXX/000 XXX 00 XX XXX, 0XX HD
831 ET6101 AMIDA ARROW BOARD - 2/1/1999 4,691.21 - Raleigh
SOLAR POWERED 15 LIGHT
TRLR MOUNT
832 P0443 X1999 CHEVROLET SILVERADO 11/18/1999 31,800.00 - Xxxxx
XX00000 P/U
833 A0107 X2000 GMC 4 dr YUKON - Black 12/8/1999 41,951.08 - Albany
834 P0462 X1999 GMC TK15753 Z71 P/U 12/22/1999 29,966.76 - Albany
835 ST4890 CMS-T331 Portable 1/17/2000 20,322.14 - Xxxxxxx
Changeable Mess. Sign
836 P0496 GMC 2000 YUKON DENALI - 2/23/2000 49,869.64 - Xxxxxxx
SPRUCE GREEN
837 FK5607 CASE 586E 3/30/2000 28,737.50 - Chesapeake
FORKLIFT/CONSTR
X/STRAIT/6000#/4WD
838 A0113 X2000 Cadillac Escalade 9/21/2000 43,401.52 - Raleigh
X - Black 4 door
839 Yanmar B50-2 Mini Excavator 10/5/2001 13,515.00 2,928.25 Xxxxxxx
840 TR1954 Xxxxxx X00-0 Mimi Excavator 10/5/2001 13,515.00 2,928.25 Xxxxxxx
841 FB2013 94 GMC Topkick Flatbed 9/4/2001 24,947.80 4,989.56 Chesapeake
w/ Crash Cushion
842 FB2014 94 GMC Topkick Flatbed 9/4/2001 24,947.80 4,989.56 Chesapeake
w/ Crash Cushion
843 Xxxxx Xxx H-45 7/17/2002 1,540.80 564.96 Xxxxxxx
Hydr Ground Rod Driver
844 BU5007 GE Capital Unit #000000 F-450 6/20/2002 38,359.50 13,425.83 Xxxxxxx Xx Capital #1
845 BU5002 GE Capital Unit #571799 F-450 6/20/2002 38,359.50 13,425.83 Xxxxxxx Xx Capital #1
846 BU5005 GE Capital #571804 F-450 6/20/2002 38,359.50 13,425.83 Raleigh Ge Capital #1
847 BU5006 GE Capital #571812 F-450 6/20/2002 38,359.50 13,425.83 Raleigh Ge Capital #1
848 BU5003 GE Capital #57822 F-450 6/20/2002 38,359.50 13,425.83 Xxxxxxx Xx Capital #1
849 BI5110 GE Capital #24051 F-650 8/6/2002 72,492.50 27,788.79 Xxxxxxx Xx Xxxxxxx #0
000 XX0000 GE Capital #24063 F-650 8/6/2002 76,772.50 29,429.46 Xxxxxxx Xx Capital #1
851 BI5106 GE Capital #24069 F-650 8/6/2002 72,492.50 27,788.79 Xxxxxxx Xx Capital #1
852 BI5109 GE Capital #717901 F-650 8/6/2002 72,492.50 27,788.79 Raleigh Ge Capital #1
Page 9 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
853 Vermeer Mod. V-2050 Trencher 9/30/2002 1,121.36 - Xxxxxxx
854 Canon NP-6050 3/21/2002 5,857.50 1,757.25 Albany
Remanufactured Copier - 20 Bin
855 Computer Adjustment goes 10/1/2002 (95.85) (39.94) Raleigh
w/ System #812
856 Compaq Notebook 2/1/2002 2,136.99 605.47 Raleigh
857 Compaq Notebook 2/1/2002 2,364.62 669.99 Raleigh
858 Computer Laptop 3/31/2002 1,191.22 357.38 Xxxxxxx
859 HP Notebook 4/10/2002 1,985.18 55.13 Xxxxxxx
860 Computer Purchased from CompUSA 4/21/2002 1,011.72 - Raleigh
861 TR1599-A Major Repair on Asset 202 - 4/18/2002 1,024.24 - Chesapeake
New Clutch & Flywheel
862 DD2706 1999 Freight Liner FL80 2/28/2002 96,282.50 27,280.04 Xxxxxxx
w/ Altec Digger Lift /B
863 Solar Arrow Boards 4/12/2002 11,716.50 3,710.22 Xxxxxxx Altec
864 Compaq 3015 3/27/2003 2,209.59 368.27 Xxxxxxx
865 Monitor,mouse,mp,keyboard 4/1/2003 805.44 134.25 Raleigh
866 PO462-A Repair Engine 1999 GMC Pickup 4/30/2003 5,678.87 1,104.22 Albany
867 Xxxxxxxx HK06FT 4/30/2003 1,806.16 351.21 Xxxxxxx
Dieless Crimping Tool
868 Dynomometer 5000 4/30/2003 1,158.34 225.24 Xxxxxxx
869 Fair H4802 Hydraulic Tamp 4/30/2003 1,122.69 218.30 Xxxxxxx
870 AB Chance C403-3370 4/30/2003 1,004.06 195.24 Xxxxxxx
X40kv Phasing Stick
871 Fair 49335 15 Ton Hy Crimper 4/30/2003 2,234.38 434.47 Xxxxxxx
872 Repair change out rear axle 6/30/2003 1,587.61 396.91 Xxxxxxx
873 MT4728 X82x18' flat bed trailer" 6/30/2003 2,000.00 1,100.01 Xxxxxxx
874 MT4727 X6x16 Car Hauler Trailer 6/30/2003 1,600.00 880.00 Xxxxxxx
875 Phone System for NC 6/30/2003 3,000.00 1,650.00 Raleigh
876 Wire Xxxx Wire Fence in Xxxxxxx Yard 6/30/2003 4,900.00 1,225.01 Xxxxxxx
Fence
877 Phone System 6/30/2003 8,495.28 4,672.40 Xxxxxxx
000 XX0000 X7/16 Side Trailer with Gate 6/30/2003 2,232.02 1,227.62 Xxxxxxx
000 XX0000 Xxxxxx Trailer 5/9/2003 4,066.00 2,100.77 Xxxxxxx
880 Compaq EVO 2 Ghz 6/30/2003 680.15 170.04 Albany
881 Security System for Raleigh Location 7/1/2003 1,451.06 798.09 Raleigh
882 BU5007-A GE Capital Unit #571790 F-450 7/31/2003 1,040.04 589.36 Xxxxxxx Xx Capital #1
883 BU5002-A GE Capital Unit #571799 F-450 7/31/2003 1,040.04 589.36 Xxxxxxx Xx Capital #1
884 BU5005-A GE Capital #571804 F-450 7/31/2003 1,040.04 589.36 Raleigh Ge Capital #1
885 BU5006-A GE Capital #571812 F-450 7/31/2003 1,040.04 589.36 Raleigh Ge Capital #1
886 BU5003-A GE CAPITAL #57822 f-450 7/31/2003 1,040.04 589.36 Xxxxxxx Xx Capital #1
887 BI5110-A GE Capital #24051 F-650 7/31/2003 1,722.70 976.20 Xxxxxxx Xx Xxxxxxx #0
000 XX0000-X GE Capital #24063 F-650 7/31/2003 1,808.30 1,024.69 Xxxxxxx Xx Capital #1
889 BI5106-A GE Capital #24069 F-650 7/31/2003 1,722.70 976.20 Xxxxxxx Xx Capital #1
890 BI5109-A GE Capital #717901 F-650 7/31/2003 1,722.70 976.20 Raleigh Ge Capital #1
891 Sales tax on Compaq EVO D510C 10/31/2003 66.98 24.19 Albany
892 ACS Processor Phone System 10/31/2003 2,278.84 1,405.29 Albany
893 Hydrolic Punch Set 10/31/2003 3,456.22 1,248.09 Xxxxxxx
895 FK5608-A Forklift Repair 4/30/2004 4,001.88 2,112.11 Albany
896 W2190 Bobcat 250 NT w/ running gear 4/30/2004 3,089.09 2,213.85 Albany
897 W2191 Bobcat 250 NT w/ running gear 4/30/2004 3,089.09 2,213.85 Albany
898 XXXXXX XX-7700 LINE TRACER 7/31/2004 2,209.30 1,350.12 Albany
899 CT2759-A Repair on Grove Crane 10/31/2004 10,869.32 8,876.62 Albany
900 Build inside of new Shop 1/31/1998 50,613.72 31,310.10 Xxxxxx
000 Xxxxxx XXX-000 Transport 11/30/2004 1,914.69 1,382.82 Lakeland
T220 15 inch
902 Laptop TSP-874 Transport 11/30/2004 1,914.69 1,382.82 Lakeland
T220 15 inch
903 Laptop TSP-874 Transport 11/30/2004 1,914.69 1,382.82 Lakeland
T220 15 inch
904 Laptop TSP-874 Transport 11/30/2004 1,914.69 1,382.82 Lakeland
T220 15 inch
905 Laptop TSP-874 Transport 11/30/2004 1,914.69 1,382.82 Lakeland
T220 15 inch
906 Laptop TSP-874 Transport 11/30/2004 1,914.69 1,382.82 Lakeland
T220 15 inch
907 Laptop TSP-874 Transport 11/30/2004 1,914.69 1,382.82 Lakeland
T220 15 inch
908 Laptop TSP-874 Transport 11/30/2004 1,914.69 1,382.82 Lakeland
T220 15 inch
909 Laptop TSP-874 Transport 11/30/2004 1,914.69 1,382.82 Lakeland
T220 15 inch
910 Laptop TSP-874 Transport 11/30/2004 1,914.67 1,382.81 Lakeland
T220 15 inch
911 CT3195 Concrete Saw Target PaciV20H 11/30/2004 5,297.58 3,826.02 Raleigh
912 TR1580-A Repairs to TR1580 11/30/2004 2,124.27 1,534.19 Xxxxxxx
913 P0503 X2000 Chevrolet Silverado 1 11/30/2004 11,500.00 9,583.33 Raleigh
X500 Extended Cab Pickup
914 DB3906-A Repairs 11/30/2004 4,487.09 3,240.67 Tampa
915 P0462-B Repairs 11/30/2004 4,844.93 3,499.11 Albany
916 Leasehold Improvements 11/30/2004 4,759.49 3,437.40 Lakeland
917 TR1560-A Repairs new rear axle 11/30/2004 1,300.00 938.89 Chesapeake
918 DB4026-B Reapairs 11/30/2004 6,766.23 4,886.72 Xxxxx
000 XXX-000 - Xxxxxxxxx 000X Computer 12/31/2004 1,341.11 1,005.83 Lakeland
920 Notebook - TSP-874- 12/31/2004 1,914.69 1,436.01 Lakeland
Transport T2200 15in
921 CLT-938 - Clientrpro 365 N Desktop 12/31/2004 1,341.11 1,005.83 Lakeland
922 X5000W Generator 12/31/2004 566.03 424.52 Lakeland
923 P0429-A Repairs to Truck 12/31/2004 2,596.77 1,947.57 VNS
924 P0485-A Repairs to Truck 12/31/2004 1,588.34 1,191.25 Xxxxxxx
925 FIS H Power Xxxxxx .1db & 12/31/2004 1,920.00 1,440.00 Xxxxxxx
X1310/1550 Dual Laser Source
926 CT2753-B Repairs on Crane Truck 12/31/2004 11,394.98 8,546.23 Chesapeake
000 Xxxx Xxx 0/00 Xxxxxxx Xxx 12/31/2004 1,953.92 1,465.43 Network
Services
928 CT2763-A Repairs to CT2763 12/31/2004 1,840.41 1,380.30 Xxxxxxx
929 TR1573-A repairs to TR1573 12/31/2004 3,253.73 2,440.30 Tampa
930 P0466-A repairs to P0466 12/31/2004 2,647.61 1,985.70 Tampa
931 CLT937 Base Model Clientpro 565 N 1/31/2005 1,783.77 1,387.37 Xxxxxxxx
000 XXX000 Base Model Clientpro 565 N 1/31/2005 1,783.76 1,387.36 Xxxxxxxx
000 X0000 X1999 Tahoe White Utility Vehicle 1/1/2005 - - Xxxxxxx
936 AC4536 X1985 Xxxxxxxxx Xxxx 1/1/2005 - - Chesapeake
X160 Air Compressor
939 AC4546 X1995 Leroi 185DJE Air Compressor 1/1/2005 - - Raleigh
940 AC4547 Xxxxxxx 000-XXXXX Xxxxx 0/0/0000 - - Xxxxxxx
Air Compressor
941 AW8302 Xxxxxxx XX000 Weoder 1/1/2005 - - Xxxxxxx
942 BH4354 X1994 Case 580L Backhoe 1/1/2005 - - Xxxxxxx
943 BI5117 X2001 Sterling Acterra 1/1/2005 - - Chesapeake
X2 ton Bucket Truck
944 CT3155 Homemade Cable Reel Trailer 1/1/2005 - - Xxxxxxx
945 CT3156 Homemade Cable Reel Trailer 1/1/2005 - - Xxxxxxx
946 CT3168 X2003 Homemade Reel Trailer 1/1/2005 - - Raleigh
947 CT3169 Xxxxx Reel Trailer 1/1/2005 - - Raleigh
Page 10 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
948 CT3170 X1961 Alte Reel Trailer 1/1/2005 - - Raleigh
949 CT3171 Homemade Cable Reel Trailer 1/1/2005 - - Xxxxxxx
950 DB3721 Xxxxxx Tugger Tractor 1/1/2005 - - Raleigh
951 DT2610 X1982 Ford 7000 2 ton dump truck 1/1/2005 - - Chesapeake
952 DT2611 X1992 F-700 Dump Truck 1/1/2005 - - Xxxxxxx
953 ET6029 Xxxxxx 10 Ton Backhoe Trailer 1/1/2005 - - Chesapeake
954 ET6032 X2001 Homemade 4x6 Sign Trailer 1/1/2005 - - Conyers
955 ET6037 X1989 Reid Equipment Trailer 1/1/2005 - - Chesapeake
956 ET6047 X1998 Econoline 17ft Tilt Bed Trailer 1/1/2005 - - Conyers
957 ET6048 X1996 Valley 1200 Trailer 1/1/2005 - - Conyers
958 ET6049 X1997 Pero 20ft Trailer Goose Neck 1/1/2005 - - Conyers
959 ET6050 X1997 Custom Equipment Trailer 1/1/2005 - - Conyers
960 ET6055 X1990 Butler Equipment Trailer 1/1/2005 - - Raleigh
961 ET6056 Yellow 3 axle equipment trailer 1/1/2005 - - Raleigh
962 ET6066 Sign Trailer 1/1/2005 - - Conyers
963 ET6067 Sign Trailer 1/1/2005 - - Conyers
964 ET6076 X1996 Traverl Boss KWA48DTA 1/1/2005 - - Conyers
Equipment Trailer Transport
965 ET6077 X1996 Ditch Witch S5A 1/1/2005 - - Chesapeake
Equipment Trailer
966 FB2007 X1997 F-350 1-Ton Truck w/ winch 1/1/2005 - - Conyers
967 FK5620 X1996 Case 586E Forklift 1/1/2005 - - Chesapeake
968 FT2801 X2000 Fiber Camper 1/1/2005 - - VNS
969 MT4704 Homemade Sign Trailer 1/1/2005 - - Chesapeake
970 MT4711 X1996 MTI Material Trailer 1/1/2005 - - Conyers
971 MT4713 X2002 Apple Valley 1/1/2005 - - Conyers
Cargo Material Trailer
972 MT4718 X1997 Hudson 9-ton 1/1/2005 - - Raleigh
Equipment Trailer
973 MT4722 X2001 Welr Material Trailer 1/1/2005 - - Conyers
974 MT4723 X2002 Homemade 24ft 1/1/2005 - - Conyers
Material Trailer
975 MT4724 X2003 Homemade 2 axle 1/1/2005 - - Chesapeake
Material Trailerw/ Pipe Bender
976 MT4729 X2001 Homemade 1/1/2005 - - Chesapeake
X6x18 Utility Trailer
977 P0488 X1996 F-150 Pickup Truck 1/1/2005 - - Chesapeake
978 P0492 X1996 F-150 Pickup Truck 1/1/2005 - - Chesapeake
979 P0502 X1998 GMC Sierra Pickup Truck 1/1/2005 - - Conyers
980 ST4867 X1994 American Signal 1/1/2005 - - Chesapeake
Message Board
981 ST4869 Protect-O-Flash Arrow Board 1/1/2005 - - Conyers
982 ST4870 Protect-O-Flash Arrow Board 1/1/2005 - - Conyers
983 ST4871 Amida Arrow Board 1/1/2005 - - Conyers
984 ST4873 Protect-O-Flash Arrow Board 1/1/2005 - - Conyers
985 ST4881 Allmand Eclipse Arrow Board 1/1/2005 - - Chesapeake
986 ST4882 Solar Tech Sentinal Arrow Board 1/1/2005 - - Chesapeake
987 ST4884 Wink-O-Matic Sunray Sign Board 1/1/2005 - - Chesapeake
988 ST4885 Wink-O-Matic Sunray Sign Board 1/1/2005 - - Chesapeake
989 TH3256 X1993 Yanmar B50-2 Excavator 1/1/2005 - - Chesapeake
990 TH3257 X1994 Yanmar B50-2 Excavator 1/1/2005 - - Chesapeake
991 TK1790 X1991 Ford F-600 1/1/2005 - - Chesapeake
X2 ton truck w crash cushion
992 TK1801 X1992 Chevrolet Kodiak 1/1/2005 - - Raleigh
X2 ton truck w/ winch
993 TM3300 Ditch Witch 1420 1/1/2005 - - Raleigh
Walk Behind Trencher
994 TM3301 Vermeer V1150 1/1/2005 - - Chesapeake
Walk Behind Trencher
995 TM3376 Vermeer V3550 Trencher Combo 1/1/2005 - - Raleigh
996 TM3694 Vermeer V5800 Trencher, Combo 1/1/2005 - - Chesapeake
997 VT2252 Ring-O-Matic Pit 750 1/1/2005 - - Chesapeake
Vacuum Pump Trailer
998 FT2802 X2005 Mohawk 6x10 1/31/2005 19,193.13 16,634.04 Network Ge Capital #1
Fiber Splicing Trailer Services
999 DB3717-A Repairs to Boring Machine 1/31/2005 9,145.19 7,112.92 Network
Services
1000 P0446-A repairs to P0446 1/31/2005 1,338.99 1,041.43 VNS
1001 P0495-A repairs to P0495 1/31/2005 1,113.06 865.70 Conyers
1002 CMA5000 Mainframe 1/31/2005 20,703.43 16,102.66 Network
with 2-slot Single bay Services
1003 DB3800-A Repairs to Vermeer Boring Machine 1/31/2005 8,711.68 6,775.75 Tampa
1004 MT4706 TE202 Equipment Trailer 1/1/2005 - - Albany
1005 MT4705 Utility Trailer 1/1/2005 - - Albany
1006 MT4720 Utility Trailer 1/1/2005 - - Chesapeake
1007 TR1595 White Crew Cab Truck 1/1/2005 - - Raleigh
1008 TR1587 White Crew Cab Truck 1/1/2005 - - Raleigh
1009 TR1584 Diesel Crew Cab Truck 8 Cylinder 1/1/2005 - - Conyers
1010 TR1588 X1-Ton Truck, Crew Cab 1/1/2005 - - Raleigh
1011 TR1569 Pickup Truck 1/1/2005 - - Albany
1012 P0463 Pickup Truck 1/1/2005 - - Albany
1013 P0490 White Extended Cab Pickup Truck 1/1/2005 - - Conyers
1014 ClientPro 565 Mid-Tower 2/28/2005 1,845.17 1,486.38 Lakeland
X400GB hard drive
1015 ClientPro 365 Mid-Tower 2/28/2005 1,335.69 1,075.97 Lakeland
X80GB Hard Drive
1016 ClientPro 365 Mid-Tower 2/28/2005 1,335.69 1,075.97 Lakeland
X80GB Hard Drive
1017 Demo Equipment 1/31/2005 48,562.99 37,771.21 Network
Services
1018 Fitel Fusion Splicer 2/28/2005 19,902.00 17,580.10 Network DH Supply
Services
1019 DB3800-B Parts for DB3800 2/22/2005 8,617.09 6,941.54 Tampa
1020 DB3904-A Repairs for DB3904 2/28/2005 10,699.08 8,618.70 Tampa
1021 TR1531-A Repairs for TR1531 2/28/2005 2,210.77 1,780.90 Tampa
1022 FK5606-A Repairs to FK5606 3/10/2005 3,350.97 2,699.40 Chesapeake
1023 TSP-874 Transport 3/31/2005 1,764.00 1,470.00 Lakeland
T2200 15in Laptop
1024 TSP-922 Transport 3/31/2005 1,505.09 1,254.23 Lakeland
T1200 14in Desktop
1025 TSP-922 Transport 3/31/2005 1,505.09 1,254.23 Lakeland
T1200 14in Desktop
1026 TSP-922 Transport 3/31/2005 1,505.08 1,254.22 Lakeland
T1200 14in Desktop
1027 Survey Equipment 2/28/2005 6,092.09 4,907.51 Raleigh
1028 DT2602-A Repairs to DT2602 3/31/2005 4,914.05 4,095.04 Conyers
1029 BH4331-A Repairs to BH4331 Boom Cylinder 3/31/2005 1,677.74 1,398.11 Conyers
1030 DB3716-A Repairs to DB3716-A 3/31/2005 3,669.54 3,057.95 Network
Services
1031 NSD Verizon Server 3/31/2005 1,952.17 1,626.80 VNS
1032 TR1616-A Repairs to TR1616 3/31/2005 11,745.87 9,788.22 Tampa
1033 RD 4000-EMS 512/8/33/65/200 3/31/2005 5,388.84 4,490.70 Network Direct Capital
receiver with digital depth, Services Corp #1
peak/null passive power
1034 RD 4000-EMS 512/8/33/65/200 3/31/2005 5,388.84 4,490.70 Network Direct Capital
receiver with digital depth, Services Corp #1
peak/null passive power
1035 Gas Detector 3/31/2005 2,192.60 1,827.16 Network
Services
1036 Duct Rodder 3/31/2005 2,058.45 1,715.36 Network
Services
1037 Man Hole Blower 3/31/2005 5,225.13 4,354.27 Network
Services
Page 11 of 12
Acqui- Acqui-
System Company sition sition
Number Asset # Description Date Value NBV Location Lease
----------------------------------------------------------------------------------------------------------------------------------
1038 Firewall switch 4/30/2005 1,107.45 953.63 Lakeland
1039 Firewall switch 4/30/2005 1,107.45 953.63 Lakeland
1040 TSP-922 Transport Computer 4/30/2005 1,497.32 1,289.36 Lakeland
1041 TSP-922 Transport Computer 4/30/2005 1,497.32 1,289.36 Lakeland
1042 VT2257-A repairs to VT2257 4/30/2005 1,426.31 1,228.20 Tampa
1043 P0446-B repairs to P0446 4/30/2005 2,493.77 2,147.41 VNS
1044 CT2753-B repairs to CT2753 4/30/2005 1,505.42 1,296.33 Raleigh
1045 P0461-A repairs to P0461-A 4/30/2005 1,242.43 1,069.87 Albany
1046 A0107-A repairs to A0107-A 4/30/2005 1,820.92 1,568.01 Albany
1047 DB3904-B repairs to DB3904 4/30/2005 3,094.80 2,664.96 Tampa
1048 TR1577-A repairs to TR1577 4/30/2005 2,766.58 2,382.32 Tampa
1049 FP01 Fiber Optic Puller 5/30/2005 12,605.60 11,204.97 VNS Direct Cap
Funding
Inc/Marlin
Leasing
1050 TR1543 Repairs to TR1543 5/31/2005 2,300.96 2,045.29 Tampa
1051 TR1530-A repairs to TR1530-A 5/31/2005 1,214.23 1,079.31 Tampa
1052 DB3800-C reapirs to DB4026.-C 5/31/2005 3,311.52 2,943.57 Tampa
1053 P0467-A repairs to P0467 5/31/2005 1,706.66 1,517.02 Tampa
1054 P0443-A repairs to P0443 5/31/2005 2,575.50 2,289.33 Tampa
1055 TR1530-A repairs to TR1530 5/31/2005 3,377.99 3,002.65 Tampa
1056 TR1543-A repairs to TR1543 5/31/2005 2,633.53 2,340.91 Tampa
1057 P0502-A repairs to P0502 replace engine 5/31/2005 3,619.28 3,217.13 Conyers
1058 X1P0706 X1996 Ford F250 P/U Truck 1/1/2005 - - Chesapeake
1059 CT2757-B repairs to CT2757 6/30/2005 1,787.72 1,638.73 Chesapeake
1060 TH3261 X2002 Melroe 6/30/2005 24,368.50 22,337.79 Chesapeake Direct Capital
Rubber Track Excavator Corp #2
1061 FL4605 X2003 Melrose T200-G 6/30/2005 36,273.00 33,250.25 Chesapeake Direct Capital
Rubber Track Loader Corp #2
1062 AC5303 Ingersol Rand AIr Compressor 6/30/2005 6,152.50 5,639.79 Network Direct Capital
Services Corp #2
1063 AC5305 Ingersol Rand Air Compressor 6/30/2005 6,152.50 5,639.79 VNS Direct Capital
Corp #2
1064 AC5304 Ingersol Rand Air Compressor 6/30/2005 6,152.50 5,639.79 VNS Direct Capital
Corp #2
1065 FK5610-A repairs to FK5610 6/30/2005 1,764.75 1,617.69 Albany
1066 TR1528-A repairs to TR1528 6/30/2005 1,679.15 1,539.22 Tampa
1067 DD2706-A repairs to DD2706 6/30/2005 1,283.01 1,176.08 Conyers
1068 DB3800-D credit to Repairs on DB3800 6/30/2005 (1,189.64) (1,090.50) Tampa
1069 A0116-A repairs to A0116 6/30/2005 1,533.51 1,405.71 Albany
1070 TR1600-A repairs to TR1600 6/30/2005 1,368.95 1,254.86 Conyers
1071 CT2761-B repairs to CT2761 6/30/2005 1,421.64 1,303.17 Tampa
1072 A0109 repairs to A0109 6/30/2005 2,497.26 2,289.15 Network
Services
1073 BH4351-A repairs to BH4351 6/30/2005 1,070.54 981.32 Raleigh
1074 DT2610-A repairs to DT2610 7/31/2005 1,792.34 1,692.76 Chesapeake
1075 TR1579-A repairs to TR1579 7/31/2005 1,352.00 1,276.88 Tampa
1076 BI5111-A repairs to BI5111 7/31/2005 1,839.27 1,737.09 Tampa
1077 FL4603-A repairs to FL4603 7/31/2005 1,284.00 1,212.66 Raleigh
1078 DB3905-A repairs 7/31/2005 1,800.69 1,700.64 Tampa
1079 ET6073-A repairs 7/31/2005 1,723.66 1,627.89 Tampa
1080 P0425-A repairs 7/31/2005 1,851.50 1,748.64 Conyers
1081 BI5107-B repairs 7/31/2005 9,876.13 9,327.45 Conyers
1082 TR1531-B repairs 7/31/2005 1,863.96 1,760.40 Tampa
1083 DB3906-B repairs 7/31/2005 4,274.13 4,036.67 Tampa
1084 VT2257-B repairs 8/31/2005 1,235.63 1,201.30 Tampa
1085 BH4333-A adding forks to backhoe 8/31/2005 1,369.60 1,331.55 VNS
1086 DB3905-B repairs 8/31/2005 3,142.15 3,054.87 Tampa
1087 PD8000-A repairs to Hydraulics 8/31/2005 4,207.86 4,090.97 Raleigh
1088 Homemade Reel Cable Trailer 8/31/2005 537.81 522.86 Raleigh
1089 Homemade Reel Cable Trailer 8/31/2005 537.81 522.86 Raleigh
1090 TR1606-A repairs 8/31/2005 3,794.24 3,688.84 Tampa
1091 TR1576-B repairs 8/31/2005 2,311.79 2,247.57 Conyers
1092 CT2763-B repairs 8/31/2005 1,619.19 1,574.20 Conyers
1093 CT2761-C repairs 8/31/2005 2,161.71 2,101.65 Tampa
1094 BI5107-C repairs 8/31/2005 2,174.35 2,113.94 Conyers
1095 BI5111-B repairs 9/30/2005 1,705.54 1,705.54 Tampa
1096 PD8000-B repairs 9/30/2005 1,250.99 1,250.99 Raleigh
1097 BI5115-B repairs to BI5115 9/30/2005 7,883.92 7,883.92 Chesapeake
1098 DB3906-C repairs 9/30/2005 3,065.54 3,065.54 Tampa
1099 DB3906-D repairs 9/30/2005 1,525.97 1,525.97 Tampa
1100 P0415-A repairs 10/31/2005 2,278.19 2,278.19 Chesapeake
1101 P0414-A repairs 10/31/2005 1,613.24 1,613.24 Chesapeake
1102 BU5007-B repairs 10/31/2005 3,475.57 3,475.57 Conyers
16,393,300.67 3,420,732.18
***NBV as of 09/30/2005
==================================================================================================================================
Page 12 of 12
Schedule 2.14(b)
Active Assets Internal Acquisition Acquisition Net Book Lease
System No Company Asset Number Description Date Value Value
1 CT3173 X2005 Trailer Tr3tslr 4/30/2005 6,345.74 5,816.93 Ge Capital
2 CT3174 X2005 Trailer Tr3tslr 4/30/2005 6,345.74 5,816.93 Ge Capital
3 CT3175 X2005 Trailer Tr3tslr 4/30/2005 6,345.74 5,816.93 Ge Capital
4 CT3176 X2005 Trailer Tr3tslr 4/30/2005 6,345.74 5,816.93 Ge Capital
5 1P0724 X2005 F250 4x2 Super Cab XLT 4/30/2005 30,418.45 27,883.57 Ge Capital
6 P0504 X2005 F150 4x2 Super Cab XL Styleside 4/30/2005 21,821.93 20,003.43 Ge Capital
7 P0505 X2005 F150 4x2 Super Cab XL Styleside 4/30/2005 21,821.93 20,003.43 Ge Capital
8 P0506 X2005 F150 4x2 Super Cab XL Styleside 4/30/2005 21,821.93 20,003.43 Ge Capital
9 P0508 X2005 Ford Explorer 4x2 Sport 4/30/2005 27,332.52 25,054.81 Ge Capital
10 P0509 X2005 F150 4x2 Super Cab XL Styleside 4/30/2005 21,821.93 20,003.43 Ge Capital
11 P0510 X2005 F150 4x2 Super Cab XL Styleside 4/30/2005 21,821.93 20,003.43 Ge Capital
12 P0512 X2005 F150 4x2 Super Cab XL Styleside 4/30/2005 21,821.93 20,003.43 Ge Capital
13 P0513 X2005 F150 4x2 Super Cab XL Styleside 4/30/2005 21,821.91 20,003.41 Ge Capital
14 CT3177 Trailer 5/31/2005 6,345.74 5,922.69 Ge Capital
15 CT3178 Trailer 5/31/2005 6,345.74 5,922.69 Ge Capital
16 TR1624 X2005 F350 Crew Cab 5/31/2005 37,996.60 35,463.49 Ge Capital
17 TR1627 X2005 F-450 10' Stake Body 6/30/2005 37,921.23 36,025.17 Ge Capital
18 TR1626 X2005 F-450 Crew Cab w/ 11' service body 6/30/2005 45,811.25 43,520.69 Ge Capital
19 TR1625 X2005 F-450 Crew Cab w/ 11' service body 6/30/2005 45,811.25 43,520.69 Ge Capital
20 CT3185 X2005 Evans Three reel trailer 6/30/2005 7,220.90 6,859.85 Ge Capital
21 CT3187 X2005 Evans Three reel trailer 6/30/2005 7,220.90 6,859.85 Ge Capital
22 TR1628 X2005 F-450 Utility Body 6/30/2005 41,824.68 39,733.44 Ge Capital
472,385.71 440,058.65
** NBV as 09/30/05
Schedule 2.16
The Company and Seller were unable to obtain copies of the state tax returns for
the year ended October 31, 2000 as well as for prior years for Transportation
Safety Contractors, Inc. ("TSC"), Georgia Electric Company ("GEC") and Able
Telecommunications & Power, Inc. ("ATP"). Based upon correspondence from
certain states including Alabama (for GEC), Florida (for ATP and TSC) and North
Carolina (for GEC), certain Company state income tax returns for years ending on
October 31, 2000 and prior were not filed.
SCHEDULE 2.20
ACCOUNT NAME OF BANK/ AUTHORIZED PURPOSE OF OTHER AUTHORIZED
NAME FINANCIAL INSTITUTION PERSONNEL ACCOUNT PERSONS
Working capital line of credit Merrill Lynch 1,2 Working capital line of credit None
Reducing revolver - VA property Merrill Lynch 1,2 Line of credit None
Reducing revolver - FL property Merrill Lynch 1,2 Line of credit None
Commercial checking account SunTrust 1,2,3 Main checking account None
Local checking account - Tampa, FL Bank of America 1,2,4 Petty cash for office None
Local checking account - Chesapeake, VA Bank of America 1,2,5 Petty cash for office None
Local checking account - Conyers, GA Bank of America 1,2,6 Petty cash for office None
Local checking account - Raleigh, NC Bank of America 1,2,7 Petty cash for office None
Local checking account - Albany, GA Bank of America 1,2,8 Petty cash for office None
Local checking account - Lakeland, FL Bank of America 1,2,9 Petty cash for office None
Legend:
1 - Lance McNeill
2 - Steven Palmer
3 - William Dresback
4 - Danny Trigg
5 - Mike Arroyo
6 - Dan Mauldin
7 - Phil Elmore
8 - Robert Fryer
9 - Andrea Jennings
--------------------------------------------------------------------------------
Heavy Metal Partners, LLC
7101 Creedmoor Road, Suite 126
Raleigh, North Carolina 27613
Phone (919) 870-9093-Fax (919) 676-0294
--------------------------------------------------------------------------------
October 26, 2005
Mr. Steve Palmer
Viasys
26 Lakewire Drive
Lakeland, FL 33815 VIA OVERNIGHT DELIVERY
Re: Agreement of Lease dated April 22, 2003 (the "Lease"), between Heavy Metal
Partners, LLC, as Landlord, and Georgia Electric Company, as Tenant, for
premises located at 6201 Westgate Road, Suite 100, Westgate Industrial
Park, Raleigh, North Carolina (the "Premises").
Dear Mr. Palmer:
Please recall that Heavy Metal Partners, LLC, recently refinanced the
Landlord Property (as defined in the Lease). At the request of the refinance
lender, a Phase I Environmental Study was performed for the Landlord Property.
This Study revealed that the area surrounding Tenant's oil drums has been
stained with oil, thus indicating that the drums are leaking or have leaked in
the recent past (copies of the relevant pages and photos in the Phase I are
enclosed). The Study further revealed that Tenant has not consistently contained
and disposed of its oil in compliance with the terms of the Lease. Accordingly,
it is requested that Tenant sign and return to us a copy of this letter, thereby
acknowledging and agreeing that: (a) in accordance with Section 10 of the Lease
and as required by our lender, Tenant will remove the drums and completely
remediate the leakage, at its cost and in accordance with all applicable laws,
by no later than December 18, 2005; (b) upon completion of Tenant's remediation,
submit to Landlord a clean environmental report; and (c) during the remainder of
the Lease term, Landlord will conduct periodic inspections of the Premises to
examine Tenant's compliance with the environmental provisions of the Lease; and
if Tenant is not in compliance, Landlord will require Tenant to submit to
Landlord periodic reports detailing the measures to be taken by Tenant to comply
with such provisions.
1
Thank you for your anticipated cooperation.
Sincerely yours,
/s/ Michael G. Sandman
Michael G. Sandman, Manager
Enclosures
cc: Mr. Phil Elmore, Viasys (via fax)
Ms. Cheri Megan, Colliers Pinkard (via fax)
Mr. Jeff Weatherspoon, Colliers Pinkard (via fax)
ACKNOWLEDGED AND AGREED TO BY:
GEORGIA ELECTRIC COMPANY/VIASYS
By: Date:
--------------------------- -------------------------
Name:
---------------------------
Title:
---------------------------
2
Schedule 2.24
Consulting Services Agreement between Viasys Services, Inc. and H.I.G. Capital,
LLC dated November 24, 2004.
Consulting Services Agreement between Preferred Management, LLC and Georgia
Electric Company, Able Telecommunications & Power, Inc., Transportation Safety
Contractors, Inc. and Viasys Management Company, Inc. and Viasys Network
Services, Inc. dated January 28, 2002.
Schedule 2.25
The Company has received notices of cancellation due to late payment of premiums
from Virginia Surety Compnay, Inc.
Schedule 2.26
The Company has voluntarily removed itself from the North Carolina Department of
Transportation's ("NCDOT") pre-qualified bidders list. This action was in lieu
of the NCDOT formally removing the Company due to the late performance for one
of its projects in Durham, NC.
The Company's capacity as determined by the Florida Department of Transportation
("FDOT") is currently $29 million. As the current backlog of work which is
significantly greater than the FDOT assigned capacity, the Company, if it had
the ability, would not be able to submit any bids for FDOT work.
The Company currently has no bonding facilities in place.
The Company has experienced cash flow shortages and is currently delinquent in
payments to certain suppliers, vendors and subcontractors.
EXHIIBIT 3.3
None other than as set forth in the Stock Purchase Agreement
EXHIIBIT 3.4
None other than as required by the Securities and Exchange Act of 1934
Schedule 11.2(d)
Lumbermens Mutual Casualty Company vs. Able Telecommunications & Power, Inc.,
Transportation Safety Contractors, Inc. and Georgia Electric Company, filed in
the United States District Court for the Northern District of Georgia, Atlanta
Division, styled Civil Action File No. 1:04-CV-339-WSD,
MANAGEMENT AGREEMENT
This Agreement ("Agreement") dated as of November 1, 2005 by and among
Charys Holding Company, Inc., a Delaware corporation ("Charys"), Viasys Network
Services, Inc., a Florida corporation ("VNS"), Viasys Services, Inc., a Florida
corporation ("VSI" and together with Charys and VNS, the "Company") and New
Viasys Holdings, LLC, a Delaware limited liability company ("Viasys").
WHEREAS, Charys and Viasys entered into a Stock Purchase Agreement with an
effective date of November 1, 2005, pursuant to which, all of the issued and
outstanding capital stock of VSN and VSI are being sold to Charys (the "Stock
Purchase Agreement");
WHEREAS, Charys has requested, and Viasys has agreed, that the Company,
will manage a certain project with the Virginia Department of Transportation
("VDOT"), contract number C00016042T01 ("VA Job"); and
WHEREAS, were it not for this Agreement, Viasys would have retained the VA
Job, and the assets relating thereto, prior to selling the Company to Charys.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, the parties hereto agree as
follows:
ARTICLE 1
SEGREGATION OF ASSETS AND MANAGEMENT OF THE VA JOB
--------------------------------------------------
1.1 Segregation of Assets. The Company shall segregate certain of the
-----------------------
assets owned by it, and being used in, the VA Job, and will grant to Viasys a
first priority security interest in and to such assets, which assets are more
specifically described on Schedule 1.1(a) attached hereto and the Amended and
---------------
Restated Security Agreement as set forth in Schedule 1.1(b) attached hereto (the
---------------
"Security Agreement").
1.2 Management of VA Job. The Company will remain responsible for
-----------------------
managing the VA Job, and will employ Maurice Arroyo as the VA Division Manager
("Manager") until the completion of the job, including the settlement of claims
to be made with respect to delays in completion of the VA Job (the "Claim"), as
described in Section 1.3 below. The Manager will be responsible for the day to
day operations of the VA Job, negotiations with the VDOT for change orders,
employment decisions related to staffing the VA Job, as well as all other direct
management functions with respect to the VA Job.
1.3 Change in Management. If the Company determines that the Manager is
----------------------
not adequately performing his duties and believes it necessary to effectuate a
change in the Manager, the Company must request and receive the written approval
of Viasys before consummating any such change in the Manager. Viasys shall have
ultimate decision power in relation to any proposed management change.
1.4 Change Orders. No change orders will be executed by the Company
--------------
without first obtaining written approval from Viasys.
1.5 Claims. All claims relating to the VA Job, including the Claim, must
------
be approved in writing by Viasys prior to submission to the VDOT.
ARTICLE 2
BANK ACCOUNT
2.1 Project Proceeds. The Company has opened a new bank account (the
-----------------
"Bank Account") with the Bank of America, and will execute the Security
Agreement with Viasys relating to the VA Job, the assets related thereto, the
proceeds derived therefrom and all claims made thereunder, including the Claim.
Further, the Company will notify the VDOT that all future payments shall be
electronically deposited in the Bank Account.
2.2 Payments to the Company. During the remaining term of the VA Job, on
------------------------
each of the 15th day and the last day of each and every month, the Company will
submit to Viasys a written request for the reimbursement of funds (the
"Reimbursement Request") for each given period, in the form attached as Schedule
--------
2.2. The amounts set forth in the Reimbursement Request must be consistent with
---
the "Estimated Costs to Complete" (as defined below). Within seven (7) days
after the date of such Reimbursement Request, Viasys will cause the authorized
signatories set forth in Section 2.4 below to transmit to the Company the
requisition funds to the extent contained in the Bank Account. As used herein,
the term "Estimated Costs to Complete" means the estimated remaining costs to
complete the VA Job based upon the estimated remaining work to be performed as
of October 31, 2005, as incorporated in the Post Closing Audit (as such term is
defined in the Stock Purchase Agreement), as the same may be adjusted based upon
the following (i) increases or decreases in quantities of work and (ii) change
orders.
2.3 Disbursements to Viasys. If at the end of any month, after payment to
-----------------------
the Company pursuant to Section 2.2 above, the Bank Account balance is greater
than five hundred thousand dollars ($500,000), such excess amount shall be paid
to Viasys. Upon final acceptance of the VA Job and all required payments to the
Company consistent with the Estimated Costs to Complete, all remaining funds in
the Bank Account will be disbursed to Viasys.
2.4 Signatories on Bank Account. The signatories on the Bank Account,
------------------------------
subject to change in writing by Viasys, will be any two of the following three
persons: William R. Dresback, Steven E. Palmer and Alexander D. Moskovitz.
2.5 Arbitration. All disputes, claims or controversies arising out of or
-----------
relating to this Agreement shall be settled by arbitration before a panel of
three (3) arbitrators in Miami-Dade County, Florida administered by the American
Arbitration Association under its Commercial Arbitration Rules and the
Supplementary Procedures for Large, Complex Disputes, and judgment on the award
rendered by such arbitrators may be entered in any court having jurisdiction
thereof.
2
ARTICLE 3
ALLOCATION OF PAYMENTS
3.1 Note Payments. Payments made to Viasys under Section 2.3 will
--------------
initially be treated as payments under that certain Amended and Restated Secured
Promissory Note, a copy of which is attached hereto as Schedule 3.1 (the
------------
"Note").
3.2 Earn-out. Once the Note has been paid in full, future payments under
--------
Section 2.3 will be considered additional purchase consideration to Viasys under
the Stock Purchase Agreement.
ARTICLE 4
REPORTING
4.1 Monthly Reports. The Company will submit a monthly report to Viasys
----------------
in the form attached hereto as Schedule 4.1.
-------------
4.2 Other Reporting Requirements. The Company will submit the following
------------------------------
additional information to Viasys:
4.2.1 Commonwealth of Virginia Department of Transportation
Contract Payment Voucher Summary within five days of its receipt thereof from
the VDOT.
4.2.2 Accounts payable listing on and as of the last day of each
month by the 5th day of the following month.
4.2.3 All change orders, both proposed and final, within five days
of its receipt thereof.
4.2.4 All such other information as Viasys may reasonably request.
ARTICLE 5
CLAIM PREPARATION
5.1 Claim. The Claim against the VDOT, relating to delays in completion
-----
of the VA Job and other related matters, is presently being prepared by the
Company and Viasys for submission to the VDOT. The Claim shall be made in the
name of VSI. The Company agrees to make its employees with knowledge of the
Claim available to Viasys, at no cost to Viasys, to assist in the preparation
and prosecution of the Claim. All decisions relating to the form and content of
the Claim, the prosecution of the Claim and the settlement thereof will rest
solely with Viasys. The Company will provide access to all relevant records to
permit Viasys to complete the preparation of the Claim and prosecution of the
Claim to completion.
3
ARTICLE 6
AUDIT RIGHTS
6.1 Audit Rights of Viasys. At all times during the remaining term of the
----------------------
VA Job and the settlement of the Claim, Viasys shall have the right, at its cost
and expense, and at reasonable times, to cause an audit to be made of the VA
Job, the proceeds derived therefrom and the costs to complete and actually
incurred by the Company in connection therewith.
[Remainder of Page Intentionally Left Blank]
4
IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement the date first hereinabove set forth.
CHARYS HOLDING COMPANY, INC.
By:
---------------------------------------------
Billy V. Ray, Jr., Chief Executive Officer
VIASYS NETWORK SERVICES, INC.
By:
---------------------------------------------
Name:
Title:
VIASYS SERVICES, INC.
By:
---------------------------------------------
Name:
Title:
NEW VIASYS HOLDINGS, LLC
By:
---------------------------------------------
Name: Mel Harris
Title: Manager
By:
---------------------------------------------
Name: Douglas Berman
Title: Manager
5
EXHBIIT 8.1
CERTIFICATE REGARDING REPRESENTATIONS AND WARRANTIES IN THE STOCK PURCHASE
AGREEMENT
The undersigned is CEO of Charys Holding Company Inc. ("Charys") which is a
party to that Stock Purchase Agreement, executed effective as of November 1st,
2005 by and between New Viasys Holdings, LLC and Charys (the "Stock Purchase
Agreement") and hereby certifies as of the date hereof that:
The representations and warranties made by Purchaser contained in the
Stock Purchase Agreement or on any schedule, list, certificate, or
document delivered pursuant to the provisions of the Stock Purchase
Agreement are true and correct in all respects on and as of the date
hereof as though made on and as of the date hereof and the
indemnification obligations of the Parties set forth in the Stock
Purchase Agreement shall apply accordingly. Purchaser has complied and
performed in all material respects with all agreements, covenants and
conditions required by the Agreement to be performed and complied with
by Purchaser prior to Closing.
IN WITNESS WHEREOF, the undersigned have signed this Certificate as of the
date set forth below.
Dated: November _, 2005
CHARYS HOLDING COMPANY INC.
By
--------------------------------
Billy Ray
Title: CEO
---------------------------
up covenants and conditions to be performed and complied by Purchaser prior to
Closing, as required by Section 8.1 of the Agreement
[GRAPHIC OMITTED]
SEAL OF THE STATE OF FLORIDA
FLORIDA DEPARTMENT OF STATE
Glenda E. Hood
Secretary of State
January 25, 2005
HOLLAND & KNIGHT LLP (W-I)
The Articles of Incorporation for VIASYS NETWORK SERVICES, INC, were filed on
January 24, 2005 and assigned document number P05000012213. Please refer to this
number whenever corresponding with this office regarding the above corporation.
The certification you requested is enclosed.
PLEASE NOTE: Compliance with the following procedures is essential to
maintaining your corporate status. Failure to do so may result in dissolution of
your corporation.
A corporation annual report must be filed with this office between January 1 and
May 1 of each year beginning with the calendar year following the year of the
filing/effective date noted above and each year thereafter. Failure to file the
annual report on time may result in administrative dissolution of your
corporation.
A federal employer identification (FEI) number must be shown on the annual
report form prior to its filing with this office. Contact the Internal Revenue
Service to insure that you receive the FEI number in time to file the annual
report. To obtain a FEI number, contact the IRS at 1-800-829-3676 and request
form SS-4.
Should your corporate mailing address change, you must notify this office in
writing, to insure important mailings such as the annual report notices reach
you.
Should you have any questions regarding corporations, please contact this office
at the address given below.
Loria Poole, Document Specialist
New Filings Section Letter Number: 405A00004991
Division of Corporations - P.O. BOX 6327 - Tallahassee, Florida 32314
State of Florida
[GRAPHIC OMITTED]
Department of State
I certify the attached is a true and correct copy of the Articles of
Incorporation of VIASYS NETWORK SERVICES, INC., a Florida corporation, filed on
January 24, 2005, as shown by the records of this office.
The document number of this corporation is P05000012213.
[GRAPHIC Given under my hand and the
OMITTED] Great Seal of the State of Florida,
STATE SEAL At Tallahassee, the Capital, this the
OF Twenty-fifth day of January, 2005
FLORIDA
/s/ Glenda E. Hood
Glenda E. Hood
Secretary of State
FILED
2005 JAN 24 P 12:11
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
ARTICLES OF INCORPORATION
OF
VIASYS NETWORK SERVICES, INC.
The undersigned, acting as incorporator of VIASYS NETWORK SERVICES, INC.,
under the Florida Business Corporation Act, adopts the following Articles of
Incorporation.
ARTICLE I. NAME
----------------
The name of the corporation is:
VIASYS NETWORK SERVICES, INC.
ARTICLE II. ADDRESS
--------------------
The mailing address of the corporation is:
26 Lake Wire Drive
Lakeland, Florida 33815 US
ARTICLE III. COMMENCEMENT OF EXISTENCE
---------------------------------------
The existence of the corporation will commence at 12:01 a.m. on the date of
filing of these Articles of Incorporation.
ARTICLE IV. PURPOSE
--------------------
The corporation is organized to engage in any activity or business
permitted under the laws of the United States and Florida.
ARTICLE V. AUTHORIZED SHARES
-----------------------------
The maximum number of shares that the corporation is authorized to have
outstanding at any time is 10,000 shares of common stock having a par value of
$0.01 per share.
ARTICLE VI. INITIAL REGISTERED OFFICE AND AGENT
------------------------------------------------
The street address of the initial registered office of the corporation is
26 Lake Wire Drive, Lakeland, Florida 33815 and the name of the corporation's
initial registered agent at that address is ANDREA S. JENNINGS.
ARTICLE VII. INITIAL BOARD OF DIRECTORS
----------------------------------------
The corporation shall have two directors initially. The number of directors
may be either increased or diminished from time to time, as provided in the
bylaws, but shall never be less than one. The names and street addresses of the
initial directors are:
Name Address
---- -------
DOUGLAS BERMAN 100 Brickell Bay Drive
27th Floor
Miami, FL 33131.
MEL HARRIS 10800 Biscayne Blvd.
10th Floor
Miami, FL 33161-7487
ARTICLE VIII. INCORPORATOR
---------------------------
STEVEN E. PALMER 26 Lake Wire Drive
Lakeland, FL 33815
The incorporator of the Corporation assigns to this corporation his rights
under Section 607.0201, Florida Statutes, to constitute a corporation, and he
assigns to those persons designated by the board of directors any rights he may
have as incorporator to acquire any of the capital stock of this corporation,
this assignment becoming effective on the date corporate existence begins.
ARTICLE IX. BYLAWS
-------------------
The power to adopt, alter, amend, or repeal Bylaws shall be vested in the
Board of Directors and the shareholders, except that the Board of Directors may
not amend or repeal any bylaw adopted by the shareholders that specifically
provides that the bylaw is not subject to amendment or repeal by the directors.
2
ARTICLE X. AMENDMENTS
---------------------
The corporation reserves the right to amend, alter, change, or repeal any
provision in these Articles of Incorporation in the manner prescribed by law,
and all rights conferred on shareholders are subject to this reservation.
The undersigned incorporator, for the purpose of forming a corporation
under the laws of the State of Florida, has executed these Articles of
Incorporation this 21st day of January, 2005.
----
/s/ Steven E. Palmer
------------------------------
Steven E. Palmer, Incorporator
3
CERTIFICATE DESIGNATING PLACE OF BUSINESS OR DOMICILE FOR THE SERVICE OF PROCESS
WITHIN THIS STATE, NAMING AGENT UPON WHOM PROCESS MAY BE SERVED.
Pursuant to Chapter 48.091, Florida Statutes, the following is submitted:
That VIASYS NETWORK SERVICES, INC., desiring to organize under the laws of
the State of Florida with, its initial registered office, as indicated in the
Articles of Incorporation, at 26 Lake Wire Drive, City of Lakeland, State of
Florida 33815, has named ANDREA S. JENNINGS as its agent to accept service of
process within this state.
ACKNOWLEDGMENT:
Having been named to accept service of process for the corporation named
above, at the place designated in this certificate, I agree to act in that
capacity, to comply with the provisions of the Florida Business Corporation Act,
and am familiar with, and accept, the obligations of that position.
/s/ Andrea S. Jennings
----------------------
ANDREA S. JENNINGS, Registered Agent
FILED
2005 JAN 24 P 12:11
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
4
ARTICLES OF INCORPORATION
OF
VIASYS NETWORK SERVICES, INC.
The undersigned, acting as incorporator of VIASYS NETWORK SERVICES, INC.,
under the Florida Business Corporation Act, adopts the following Articles of
Incorporation.
ARTICLE I. NAME
----------------
The name of the corporation is:
VIASYS NETWORK SERVICES, INC.
ARTICLE II. ADDRESS
--------------------
The mailing address of the corporation is:
26 Lake Wire Drive
Lakeland, Florida 33815 US
ARTICLE III. COMMENCEMENT OF EXISTENCE
---------------------------------------
The existence of the corporation will commence at 12:01 a.m. on the date of
filing of these Articles of Incorporation.
ARTICLE IV. PURPOSE
--------------------
The corporation is organized to engage in any activity or business
permitted under the laws of the United States and Florida.
ARTICLE V. AUTHORIZED SHARES
-----------------------------
The maximum number of shares that the corporation is authorized to have
outstanding at any time is 10,000 shares of common stock having a par value of
$0.01 per share.
ARTICLE VI. INITIAL REGISTERED OFFICE AND AGENT
------------------------------------------------
The street address of the initial registered office of the corporation is
26 Lake Wire Drive, Lakeland, Florida 33815 and the name of the corporation's
initial registered agent at that address is ANDREA S. JENNINGS.
ARTICLE VII. INITIAL BOARD OF DIRECTORS
----------------------------------------
The corporation shall have two directors initially. The number of directors
may be either increased or diminished from time to time, as provided in the
bylaws, but shall never be less than one. The names and street addresses of the
initial directors are:
Name Address
---- -------
DOUGLAS BERMAN 100 Brickell Bay Drive
7th Floor
Miami, FL 33131.
MEL HARRIS 10800 Biscayne Blvd.
10th Floor
Miami, FL 33161-7487
ARTICLE VIII. INCORPORATOR
---------------------------
STEVEN E. PALMER 26 Lake Wire Drive
Lakeland, FL 33815
The incorporator of the Corporation assigns to this corporation his rights
under Section 607.0201, Florida Statutes, to constitute a corporation, and he
assigns to those persons designated by the board of directors any rights he may
have as incorporator to acquire any of the capital stock of this corporation,
this assignment becoming effective on the date corporate existence begins.
ARTICLE IX. BYLAWS
-------------------
The power to adopt, alter, amend, or repeal Bylaws shall be vested in the
Board of Directors and the shareholders, except that the Board of Directors may
not amend or repeal any bylaw adopted by the shareholders that specifically
provides that the bylaw is not subject to amendment or repeal by the directors.
2
ARTICLE X. AMENDMENTS
----------------------
The corporation reserves the right to amend, alter, change, or repeal any
provision in these Articles of Incorporation in the manner prescribed by law,
and all rights conferred on shareholders are subject to this reservation.
The undersigned incorporator, for the purpose of forming a corporation
under the laws of the State of Florida, has executed these Articles of
Incorporation this 21st day of January, 2005.
----
/s/ Steven E. Palmer
------------------------------
Steven E. Palmer, Incorporator
3
CERTIFICATE DESIGNATING PLACE OF BUSINESS OR DOMICILE FOR THE SERVICE OF PROCESS
WITHIN THIS STATE, NAMING AGENT UPON WHOM PROCESS MAY BE SERVED.
Pursuant to Chapter 48.091, Florida Statutes, the following is submitted:
That VIASYS NETWORK SERVICES, INC., desiring to organize under the laws of
the State of Florida with its initial registered office, as indicated in the
Articles of Incorporation, at 26 Lake Wire Drive, City of Lakeland, State of
Florida 33815, has named ANDREA S. JENNINGS as its agent to accept service of
process within this state.
ACKNOWLEDGMENT:
Having been named to accept service of process for the corporation named
above, at the place designated in this certificate, I agree to act in that
capacity, to comply with the provisions of the Florida Business Corporation Act,
and am familiar with, and accept, the obligations of that position.
/s/ Andrea S. Jennings
----------------------
ANDREA S. JENNINGS, Registered Agent
4
BYLAWS
OF
VIASYS NETWORK SERVICES, INC.
ARTICLE I. MEETINGS OF SHAREHOLDERS
Section 1. Annual Meeting. The annual meeting of the shareholders of
----------------------------
the Corporation for the election of directors and the transaction of other
business shall be held during the month of May each year and on the date and at
the time and place that the board of directors determines. If any annual meeting
is not held, by oversight or otherwise, a special meeting shall be held as soon
as practical, and any business transacted or election held at that meeting shall
be as valid as if transacted or held at the annual meeting.
Section 2. Special Meetings. Special meetings of the shareholders for
-----------------------------
any purpose shall be held when called by the president or the board of
directors, or when demanded in writing by the holders of not less than ten
percent (unless a greater percentage not to exceed fifty percent is required by
the articles of incorporation) of all the shares entitled to vote at the
meeting. Such demand must be delivered to the Corporation's secretary. A meeting
demanded by shareholders shall be called for a date not less than ten nor more
than sixty days after the request is made, unless the shareholders requesting
the meeting designate a later date. The secretary shall issue the call for the
meeting, unless the president, the board of directors, or shareholders
requesting the meeting designate another person to do so. The shareholders at a
special meeting may transact only business that is related to the purposes
stated in the notice of the special meeting.
Section 3. Place. Meetings of shareholders may be held either within
-------------------
or outside the State of Florida.
Section 4. Notice. A written notice of each meeting of shareholders,
--------------------
stating the place, day, and time of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall be
delivered to each shareholder of record entitled to vote at the meeting, not
less than ten nor more than sixty days before the date set for the meeting,
either personally or by first-class mail, by or at the direction of the
president, the secretary, or the officer or other persons calling the meeting.
If mailed, the notice shall be considered delivered when it is deposited in the
United States mail, postage prepaid, addressed to the shareholder at his address
as it appears on the records of the Corporation.
Section 5. Waivers of Notice. Whenever any notice is required to be
--------------------------------
given to any shareholder of the Corporation under these bylaws, the articles of
incorporation, or the Florida Business Corporation Act, a written waiver of
notice, signed anytime by the person entitled to notice shall be equivalent to
giving notice.
Attendance by a shareholder entitled to vote at a meeting, in person or by
proxy, shall constitute a waiver of (a) notice of the meeting, except when the
shareholder attends a meeting solely for the purpose, expressed at the beginning
of the meeting, of objecting to the transaction of any business because the
meeting is not lawfully called or convened, and (b) an objection to
consideration of a particular matter at the meeting that is not within the
purpose of the meeting unless the shareholders object to considering the matter
when it is presented.
Section 6. Record Date. For the purpose of determining the
--------------------------
shareholders for any purpose, the board of directors may either require the
stock transfer books to be closed for up to seventy days or fix a record date,
which shall be not more than seventy days before the date on which the action
requiring the determination is to be taken. However, a record date shall not
precede the date upon which the resolution fixing the record date is adopted. If
the transfer books are not closed and no record date is set by the board of
directors, the record date shall be determined as follows: For determining
shareholders entitled to demand a special meeting, the record date is the date
the first such demand is delivered to the Corporation; For determining
shareholders entitled to a share dividend, the record date is the date the board
of directors authorizes the dividend; If no prior action is required by the
board of directors pursuant to the Florida Business Corporation Act, the record
date for determining shareholders entitled to take action without a meeting is
the date the first signed written consent is delivered to the Corporation; If
prior action is required by the board of directors pursuant to the Florida
Business Corporation Act, the record date for determining shareholders entitled
to take action without a meeting is at the close of business on the day that the
board of directors adopts a resolution taking such prior action; and For
determining shareholders entitled to notice of and to vote at an annual or
special shareholders meeting the record date is as of the close of business on
the day before the first notice is delivered to the shareholders. When a
determination of the shareholders entitled to vote at any meeting has been made,
that determination shall apply to any adjournment of the meeting, unless the
board of directors fixes a new record date. The board of directors shall fix a
new record date if the meeting is adjourned to a date more than 120 days after
the date fixed for the original meeting.
Section 7. Shareholder's List for Meeting. A complete alphabetical
----------------------------------------------
list of the names of the shareholders entitled to receive notice of and to vote
at the meeting shall be prepared by the secretary or other authorized agent
having charge of the stock transfer book. The list shall be arranged by voting
group and include each shareholder's address, and the number, series, and class
of shares held. The list must be made available at least ten days before and
throughout each meeting of shareholders, or such shorter time as exists between
the record date and the meeting. The list must be made available at the
Corporation's principal office, registered agent's office, transfer agent's
office or at a place identified in the meeting notice in the city where the
meeting will be held. Any shareholder, his agent or attorney, upon written
demand and at his own expense may inspect the list
2
during regular business hours. The list shall be available at the meeting and
any shareholder, his agent or attorney is entitled to inspect the list at any
time during the meeting or its adjournment.
If the requirements of this section have not been substantially
complied with, the meeting, on the demand of any shareholder in person or by
proxy, shall be adjourned until the requirements of this section are met. If no
demand for adjournment is made, failure to comply with the requirements of this
section does not affect the validity of any action taken at the meeting.
Section 8. Shareholder Quorum and Voting. A majority of the shares
---------------------------------------------
entitled to vote, represented in person or by proxy, constitutes a quorum at a
meeting of shareholders. If a quorum is present, the affirmative vote of a
majority of the shares entitled to vote on the matter is the act of the
shareholders unless otherwise provided by law. A shareholder may vote either in
person or by proxy executed in writing by the shareholder or his duly authorized
attorney-in-fact. After a quorum has been established at a shareholders'
meeting, a withdrawal of shareholders that reduces the number of shareholders
entitled to vote at the meeting below the number required for a quorum does not
affect the validity of an adjournment of the meeting or an action taken at the
meeting prior to the shareholders' withdrawal.
Authorized but unissued shares including those redeemed or otherwise
reacquired by the corporation, and shares of stock of this Corporation owned by
another corporation the majority of the voting stock of which is owned or
controlled by this Corporation, directly or indirectly, at any meeting shall not
be counted in determining the total number of outstanding shares at any time.
The chairman of the board, the president, any vice president, the secretary, and
the treasurer of a corporate shareholder are presumed to possess, in that order,
authority to vote shares standing in the name of a corporate shareholder, absent
a bylaw or other instrument of the corporate shareholder designating some other
officer, agent, or proxy to vote the shares. Shares held by an administrator,
executor, guardian, or conservator may be voted by him without a transfer of the
shares into his name. A trustee may vote shares standing in his name, but no
trustee may vote shares that are not transferred into his name. If he is
authorized to do so by an appropriate order of the court by which he was
appointed, a receiver may vote shares standing in his name or held by or under
his control, without transferring the shares into his name. A shareholder whose
shares are pledged may vote the shares until the shares have been transferred
into the name of the pledgee, and thereafter the pledgee or his nominee shall be
entitled to vote the shares unless the instrument creating the pledge provides
otherwise.
3
ARTICLE II. DIRECTORS
Section 1. Function. The business of this Corporation shall be managed
--------------------
and its corporate powers exercised by the board of directors.
Section 2. Number. The Corporation shall have two directors initially.
------------------
The number of directors may be increased or diminished from time to time by
action of the board of directors or shareholders, but no decrease shall have the
effect of shortening the term of any incumbent director, unless the shareholders
remove the director.
Section 3. Qualification. Each member of the board of directors must
---------------------------
be a natural person who is eighteen years of age or older. A director need not
be a resident of Florida or a shareholder of the Corporation.
Section 4. Election and Term. The persons named in the articles of
---------------------------------
incorporation as members of the initial board of directors shall hold office
until the first annual meeting of shareholders and until their successors have
been elected and qualified or until their earlier resignation, removal from
office, or death. At the first annual meeting of shareholders and at each annual
meeting thereafter the shareholders shall elect directors to hold office until
the next succeeding annual meeting. Each director shall hold office for the term
for which he is elected and until his successor is elected and qualifies or
until his earlier resignation, removal from office, or death.
Section 5. Compensation. The board of directors has authority to fix
--------------------------
the compensation of the directors, as directors and as officers.
Section 6. Duties of Directors. A director shall perform his duties as
-------------------------------
a director, including his duties as a member of any committee of the board upon
which he serves, in good faith, in a manner he reasonably believes to be in the
best interests of the Corporation.
Section 7. Presumption of Assent. A director of the Corporation who is
---------------------------------
present at a meeting of the board of directors or a committee of the board of
directors when corporate action is taken is presumed to have assented to the
action unless he votes against it or expressly abstains from voting on the
action taken, or, he objects at the beginning of the meeting to the holding of
the meeting or transacting specific business at the meeting.
Section 8. Vacancies. Unless filled by the shareholders, any vacancy
-----------------------
occurring in the board of directors, including any vacancy created because of an
increase in the number of directors, may be filled by the affirmative vote of a
majority of the remaining directors, even if the number of remaining directors
does not constitute a quorum of the board of directors. A director elected to
fill a vacancy shall hold office only until the next election of directors by
the shareholders.
4
Section 9. Removal or Resignation of Directors. At a meeting of
-----------------------------------------------------
shareholders called for that purpose, the shareholders, by a vote of the holders
of a majority of the shares entitled to vote at an election of directors, may
remove any director, or the entire board of directors, with or without cause,
and fill any vacancy or vacancies created by the removal.
A director may resign at any time by delivering written notice to the
board of directors or its chairman or the corporation. A resignation is
effective when the notice is delivered unless the notice specifies later
effective date. If a resignation is made effective at a later date, the board of
directors may fill the pending vacancy before the effective date if the board of
directors provided that the successor does not take office until the effective
date.
Section 10. Quorum and Voting. A majority of the board of directors
---------------------------------
constitutes a quorum for the transaction of business. The act of the majority of
the directors at a meeting at which a quorum is present is the act of the board
of directors.
Section 11. Place of Meetings. Regular and special meetings by the
----------------------------------
board of directors may be held within or outside the State of Florida.
Section 12. Regular Meetings. A regular meeting of the board of
--------------------------------
directors shall be held without notice, other than this bylaw, immediately after
and at the same place as the annual meeting of shareholders. The board of
directors may provide, by resolution, the time and place for the holding of
additional regular meetings without notice other than the resolution.
Section 13. Special Meetings. Special meetings of the board of
--------------------------------
directors may be called by or at the request of the president or any directors.
Section 14. Notice of Meetings. Written notice of the time and place
---------------------------------
of special meetings of the board of directors shall be given to each director by
either personal delivery or by first class United States mail, telegram, or
cablegram at least two days before the meeting. Notice of a meeting of the board
of directors need not be given to any director who signs a waiver of notice
either before or after the meeting. Attendance of a director at a meeting
constitutes a waiver of notice of the meeting and all objections to the time and
place of the meeting, or the manner in which it has been called or convened,
except when the director states, at the beginning of the meeting, or promptly
upon arrival at the meeting, any objection to the transaction of business
because the meeting is not lawfully called or convened. Neither the business to
be transacted at, nor the purpose of, any regular or special meeting of the
board of directors need be specified in the notice or waiver of notice of the
meeting.
A majority of the directors present, whether or not a quorum exists,
may adjourn any meeting of the board of directors to another time and place.
5
Notice of any adjourned meeting shall be given to the directors who were not
present at the time of the adjournment and, unless the time and place of the
adjourned meeting are announced at the time of the adjournment, to the other
directors.
ARTICLE III. OFFICERS
Section 1. Officers. The officers of the Corporation shall consist of
---------------------
a president, a secretary, and a treasurer, and may include one or more vice
presidents, one or more assistant secretaries, and one or more assistant
treasurers. The officers shall be elected initially by the board of directors at
the organizational meeting of board of directors and thereafter at the first
meeting of the board following the annual meeting of the shareholders in each
year. The board from time to time may elect or appoint other officers, assistant
officers, and agents, who shall have the authority and perform the duties
prescribed by the board. An elected or duly appointed officer may, in turn,
appoint one or more officers or assistant officers, unless the board of
directors disapproves or rejects the appointment. All officers shall hold office
until their successors have been appointed and have qualified or until their
earlier resignation, removal from office, or death. One person may
simultaneously hold any two or more offices. The failure to elect a president,
secretary, or treasurer shall not affect the existence of the Corporation.
Section 2. President. The president, subject to the directions of the
----------------------
board of directors, is responsible for the general and active management of the
business and affairs of the Corporation, has the power to sign certificates of
stock, bonds, deeds, and contracts for the Corporation, and shall preside at all
meetings of the shareholders.
Section 3. Vice Presidents. Each vice president has the power to sign
----------------------------
bonds, deeds, and contracts for the Corporation and shall have the other powers
and perform the other duties prescribed by the board of directors or the
president. Unless the board otherwise provides, if the president is absent or
unable to act, the vice president who has served in that capacity for the
longest time and who is present and able to act shall perform all the duties and
may exercise any of the powers of the president. Any vice president may sign,
with the secretary or assistant secretary, certificates for stock of the
Corporation.
Section 4. Secretary. The secretary shall have the power to sign
-----------------------
contracts and other instruments for the Corporation and shall (a) keep the
minutes of the proceedings of the shareholders and the board of directors in one
or more books provided for that purpose, (b) see that all notices are duly given
in accordance with the provisions of these bylaws or as required by law, (c)
maintain custody of the corporate records and the corporate seal, attest the
signatures of officers who execute documents on behalf of the Corporation,
authenticate records of the Corporation, and assure that the seal is affixed to
all documents of which execution
6
on behalf of the Corporation under its seal is duly authorized, (d) keep a
register of the post office address of each shareholder that shall be furnished
to the secretary by the shareholder, (e) sign with the president, or a vice
president, certificates for shares of stock of the Corporation, the issuance of
which have been authorized by resolution of the board of directors, (f) have
general charge of the stock transfer books of the Corporation, and (g) in
general perform all duties incident to the office of secretary and other duties
as from time to time may be prescribed by the president or the board of
directors.
Section 5. Treasurer. The treasurer shall (a) have charge and custody
----------------------
of and be responsible for all funds and securities of the Corporation, (b)
receive and give receipts for monies due and payable to the Corporation from any
source whatsoever, and deposit monies in the name of the Corporation in the
banks, trust companies, or other depositaries as shall be selected by the board
of directors, and (c) in general perform all the duties incident to the office
of treasurer and other duties as from time to time may be assigned to him by the
president or the board of directors. If required by the board of directors, the
treasurer shall give a bond for the faithful discharge of his duties in the sum
and with the surety or sureties that the board of directors determines.
Section 6. Removal of Officers. An officer or agent elected or
-----------------------------------
appointed by the board of directors or appointed by another officer may be
removed by the board whenever in its judgment the removal of the officer or
agent will serve the best interests of the Corporation. Any officer or assistant
officer, if appointed by another officer, may likewise be removed by such
officer. Removal shall be without prejudice to any contract rights of the person
removed. The appointment of any person as an officer, agent, or employee of the
Corporation does not create any contract rights. The board of directors may fill
a vacancy, however occurring, in any office.
An officer may resign at any time by delivering notice to the
corporation. A resignation is effective when the notice is delivered unless the
notice specifies a later effective date. If a resignation is made effective at a
later date, its board of directors may fill the pending vacancy before the
effective date if the board of directors provides that the successor does not
take office until the effective date. An officer's resignation does not affect
the officer's contract rights, if any, with the corporation.
Section 7. Salaries. The board of directors from time to time shall
----------------------
fix the salaries of the officers, and no officer shall be prevented from
receiving his salary merely because he is also a director of the Corporation.
7
ARTICLE IV. INDEMNIFICATION
Any person, his heirs, or personal representative, made, or threatened
to be made, a party to any threatened, pending, or completed action or
proceeding, whether civil, criminal, administrative, or investigative, because
he is or was a director, officer, employee, or agent of this Corporation or
serves or served any other corporation or other enterprise in any capacity at
the request of this Corporation, shall be indemnified by this Corporation, and
this Corporation may advance his related expenses to the full extent permitted
by Florida law. In discharging his duty, any director, officer, employee, or
agent, when acting in good faith, may rely upon information, opinions, reports,
or statements, including financial statements and other financial data, in each
case prepared or presented by (1) one or more officers or employees of the
Corporation whom the director, officer, employee, or agent reasonably believes
to be reliable and competent in the matters presented, (2) counsel, public
accountants, or other persons as to matters that the director, officer,
employee, or agent believes to be within that person's professional or expert
competence, or (3) in the case of a director, a committee of the board of
directors upon which he does not serve, duly designated according to law, as to
matters - within its designated authority, if the director reasonably believes
that the committee is competent. The foregoing right of indemnification or
reimbursement shall not be exclusive of other rights to which the person, his
heirs, or personal representatives may be entitled. The Corporation may, upon
the affirmative vote of a majority of its board of directors, purchase insurance
for the purpose of indemnifying these persons. The insurance may be for the
benefit of all directors, officers, or employees.
ARTICLE V. STOCK CERTIFICATES
Section 1. Issuance. Shares may but need not be represented by
----------------------
certificates. The board of directors may authorize the issuance of some or all
of the shares of the Corporation of any or all of its classes or series without
certificates. If certificates are to be issued, the share must first be fully
paid.
Section 2. Form. Certificates evidencing shares in this Corporation
------------------
shall be signed by the president or a vice president and the secretary,
assistant secretary or any other officer authorized by the board of directors,
and may be sealed with the seal of this Corporation or a facsimile of the seal.
Unless the Corporation's stock is registered pursuant to every applicable
securities law, each certificate shall bear an appropriate legend restricting
the transfer of the shares evidenced by that certificate.
Section 3. Lost, Stolen, or Destroyed Certificates. The Corporation
------------------------------------------------------
may issue a new certificate in the place of any certificate previously issued if
the shareholder of record (a) makes proof in affidavit form that the certificate
has been lost, destroyed, or wrongfully taken, (b) requests the issue of a new
certificate before
8
the Corporation has notice that the certificate has been acquired by the
purchaser for value in good faith and without notice of any adverse claim, (c)
if requested by the Corporation, gives bond in the form that the Corporation
directs, to indemnify the Corporation, the transfer agent, and the registrar
against any claim that may be made concerning the alleged loss, destruction, or
theft of a certificate, and (d) satisfies any other reasonable requirements
imposed by the Corporation.
Section 4. Restrictive Legend. Every certificate evidencing shares
---------------------------------
that are restricted as to sale, disposition, or other transfer shall bear a
legend summarizing the restriction or stating that the Corporation will furnish
to any shareholder, upon request and without charge, a full statement of the
restriction,
ARTICLE VI. DIVIDENDS
The board of directors from time to time may declare, and the
Corporation may pay, dividends on its outstanding shares in the manner and upon
the terms and conditions provided by law,
ARTICLE VII. SEAL
The corporate seal shall have the name of the Corporation and the word
"seal" inscribed on it, and may. be a facsimile, engraved, printed, or an
impression seal.
ARTICLE VIII. AMENDMENT
These bylaws may be repealed or amended, and additional bylaws may be
adopted, by either a vote of a majority of the full board of directors or by
vote of the holders of a majority of the issued and outstanding shares entitled
to vote, but the board of directors may not amend or repeal any bylaw adopted by
the shareholders if the shareholders specifically provide that the bylaw is not
subject to amendment or repeal by the directors. In order to be effective, any
amendment approved hereby must be in writing and attached to these Bylaws.
9
FILED
2003 APR 21 PM 12:24
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
TRANSPORTATION SAFETY CONTRACTORS, INC.
The Articles of Incorporation of TRANSPORTATION SAFETY CONTRACTORS, INC., a
Florida corporation, shall be amended as follows:
The First article of the Articles of Incorporation shall be deleted in its
entirety and the following shall be added in its place:
"FIRST: The name of the corporation is Viasys Services, Inc. The principal
office of the corporation is located at 135 Horizon Court, Lakeland, Florida
33813."
The foregoing amendment was adopted to be affective on the date of filing
of, these Articles of Amendment, by all of the directors and shareholders of the
corporation, pursuant to Sections 607.0821, 607.0704 and 607.1003, Florida
Statutes, as evidenced by their signatures on a Unanimous Consent manifesting
their intention that the foregoing amendment to the Articles of Incorporation be
adopted. The number of votes cast for the amendment was sufficient for approval
by the shareholders of the corporation.
IN WITNESS WHEREOF, the undersigned President of the corporation has
executed this instrument effective as of the 11th. day of March, 2003.
----
/s/ Lance McNeill
----------------------------------
Lance McNeill, President
State of Florida
[GRAPHIC OMITTED]
Department of State
I certify that the attached is a true and correct copy of the Articles of
Incorporation of TRANSPORTATION SAFETY CONTRACTORS, INC.
a corporation organized under the Laws of the State of Florida, filed on
November 22, 1982.
The charter number for this corporation is G09210.
[GRAPHIC Given under my hand and the
OMITTED] Great Seal of the State of Florida,
STATE SEAL at Tallahassee, the Capital, this the
OF 22nd day of November, 1982.
FLORIDA
/s/ George Firestone
George Firestone
Secretary of State
State of Florida
[GRAPHIC OMITTED]
Department of State
I certify from the records of this office that TRANSPORTATION SAFETY
CONTRACTORS, INC. is a corporation organized under the laws of the State of
Florida, filed on November 22, 1982.
The document number of this corporation is G09210.
I further certify that said corporation has paid all fees and penalties due this
office through December 31, 1998, that its most recent annual report was filed
on June 9, 1998, and its status is active.
I further certify that said corporation has not filed Articles of Dissolution.
I further certify that this is an electronically transmitted certificate
authorized by section 15.16, Florida Statutes, and authenticated by the code,
898A00032568-061098-G09210 -1/1, noted below.
Given under my hand and the
Great Seal of the State of Florida,
at Tallahassee, the Capital, this the
Tenth day of June, 1998
Authentication Code: 898A00032568-061098-G09210 -1/1
[GRAPHIC
OMITTED] /s/ Sandra B. Mortham
STATE SEAL Sandra B. Mortham
OF Secretary of State
FLORIDA
FILED
NOV 22 2:42 PM '82
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
STATE OF FLORIDA
ARTICLES OF INCORPORATION
OF
TRANSPORTATION SAFETY CONTRACTORS, INC.
The undersigned, acting as incorporators of a corporation under the
Florida General Corporation Act, adopt the following Articles of Incorporation:
FIRST: The name of the corporation is TRANSPORTATION SAFETY
CONTRACTORS, INC.
SECOND: The period of its duration is perpetual.
THIRD: The date and time of the commencement of the corporation
existence is the time of filing of Articles by the Department of State.
FOURTH: The purpose or purposes for which the corporation is organized
are:
To manufacture, construct, install, distribute, market and sell
highway and traffic control products and to engage in the transaction of any or
all lawful business for which corporations may be incorporated under the
provisions of the Florida General Corporation Act.
FIFTH: The aggregate number of shares which the corporation shall have
authority to issue is: fifteen thousand (15,000) common shares of the par value
of One Dollar ($1.00) each.
SIXTH: Provisions granting preemptive rights are:
No shareholder shall have any preemptive rights to subscribe for or to
purchase any shares or other securities issued by the corporation.
SEVENTH: The street address of the initial registered office of the
corporation is c/o C T Corporation System, 8751 West Broward Blvd., City of
Plantation, Florida 33324, and the name of its initial registered agent at such
address is C T Corporation System.
EIGHTH: The number of directors constituting the initial board of
directors of the corporation is three, and the names and addresses of the
persons who are to serve as directors until the first annual meeting of
shareholders or until their successors are elected and shall qualify are:
NAME ADDRESS
---- -------
William E. Barlow 8583 Gardenia Drive
Largo, Florida 33543
C. Doug Hubbard 66 Country Club Rd.
Zephyrhills, Florida 33599
R. Joel Tharpe 2110 Alder Way
Brandon, Florida 33511
NINTH: The name and address of each incorporator is:
NAME ADDRESS
---- -------
K. L. Slayman 2 Peachtree St., N. W.
Atlanta, Georgia 30383
R. L. Tuttle, Jr. 2 Peachtree St., N. W.
Atlanta, Ga. 30383
R. W. McEver 2 Peachtree St., N. W.
Atlanta, Ga. 30383
Dated November 19, 1982.
/s/ K. L. Slayman
-----------------
K. L. Slayman
/s/ R. L. Tuttle, Jr.
---------------------
R. L. Tuttle, Jr.
/s/ R. W. McEver
----------------
R. W. McEver
Incorporators
STATE OP GEORGIA
COUNTY OF FULTON
The foregoing instrument was acknowledged before me this 19th day of
November, 1982, by K. L. Slayman, R. L. Tuttle, Jr. and R. W. McEver of
TRANSPORTATION SAFETY CONTRACTORS, INC.
EDNA B. BELL
My commission expires Notary Public Georgia, State at Large
My Commission Expires Aug. 7, 1983
[GRAPHIC OMITTED]
NOTARY SEAL
/s/ Edna B. Bell
------------------------
Notary Public
C T Corporation System having been designated to act as registered
agent hereby agrees to act in this capacity.
C T CORPORATION SYSTEM
/s/ Jerry I. Dawson
---------------------
Jerry I. Dawson
Assistant Secretary
State of Florida
[GRAPHIC OMITTED]
Department of State
I certify that the attached is a true and correct copy of the Articles of
Incorporation of TRANSPORTATION SAFETY CONTRACTORS, INC.
a corporation organized under the Laws of the State of Florida, filed on
November 22, 1982.
The charter number for this corporation is G09210.
[GRAPHIC Given under my hand and the
OMITTED] Great Seal of the State of Florida,
STATE SEAL At Tallahassee, the Capital, this the
OF 22nd day of November, 1982.
FLORIDA
/s/ George Firestone
George Firestone
Secretary of State
FILED
NOV 22 2:42 PM '82
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
STATE OP FLORIDA
ARTICLES OF INCORPORATION
OF
TRANSPORTATION SAFETY CONTRACTORS, INC.
The undersigned, acting as incorporators of a corporation under the
Florida General Corporation Act, adopt the following Articles of Incorporation:
FIRST: The name of the corporation is TRANSPORTATION SAFETY
CONTRACTORS, INC.
SECOND: The period of its duration is perpetual.
THIRD: The date and time of the commencement of the corporation
existence is the time of filing of Articles by the Department of State.
FOURTH: The purpose or purposes for which the corporation is organized
are:
To manufacture, construct, install, distribute, market and sell
highway and traffic control products and to engage in the transaction of any or
all lawful business for which corporations may be incorporated under the
provisions of the Florida General Corporation Act.
FIFTH: The aggregate number of shares which the corporation shall have
authority to issue is: fifteen thousand (15,000) common shares of the par value
of One Dollar ($1.00} each.
SIXTH: Provisions granting preemptive rights are:
No shareholder shall have any preemptive rights to subscribe for or to
purchase any shares or other securities issued by the corporation.
SEVENTH: The street address of the initial registered office of the
corporation is c/o C T Corporation System, 8751 West Broward Blvd., City of
Plantation, Florida 33324, and the name of its initial registered agent at such
address is C T Corporation System.
EIGHTH: The number of directors constituting the initial board of
directors of the corporation is three, and the names and addresses of the
persons who are to serve as directors until the first annual meeting of
shareholders or until their successors are elected and shall qualify are:
NAME ADDRESS
---- -------
William E. Barlow 8583 Gardenia Drive
Largo, Florida 33543
C. Doug Hubbard 66 Country Club Rd.
Zephyrhills, Florida 33599
R. Joel Tharpe 2110 Alder Way
Brandon, Florida 33511
NINTH: The name and address of each incorporator is:
NAME ADDRESS
---- -------
K. L. Slayman 2 Peachtree St., N. W.
Atlanta, Georgia 30383
R. L. Tuttle, Jr. 2 Peachtree St., N. W.
Atlanta, Ga. 30383
R. W. McEver 2 Peachtree St., N. W.
Atlanta, Ga. 30383
Dated November 19, 1982.
/s/ K. L. Slayman
-----------------
K. L. Slayman
/s/ R. L. Tuttle, Jr.
---------------------
R. L. Tuttle, Jr.
/s/ R. W. McEver
----------------
R. W. McEver
Incorporators
STATE OP GEORGIA
COUNTY OF FULTON
The foregoing instrument was acknowledged before me this 19th day of
November, 1982, by K. L. Slayman, R. L. Tuttle, Jr. and R. W. McEver of
TRANSPORTATION SAFETY CONTRACTORS, INC.
EDNA B. BELL
My commission expires Notary Public Georgia, State at Large
My Commission Expires Aug. 7, 1983
[GRAPHIC OMITTED]
NOTARY SEAL
/s/ Edna B. Bell
------------------------
Notary Public
C T Corporation System having been designated to act as registered
agent hereby agrees to act in this capacity.
C T CORPORATION SYSTEM
/s/ Jerry I. Dawson
---------------------
Jerry I. Dawson
Assistant Secretary
State of Florida
[GRAPHIC OMITTED]
Department of State
I certify the attached is a true and correct copy of the Articles of
Incorporation, as amended to date, of TRASPORATION SAFETY CONTRACTORS, INC., a
corporation organized under the laws of the State of Florida, as shown by the
records of this office.
The document number of this corporation is G09210.
[GRAPHIC Given under my hand and the
OMITTED] Great Seal of the State of Florida,
STATE SEAL at Tallahassee, the Capital, this the
OF Ninth day of June, 1998
FLORIDA
/s/ Sandra B. Mortham
Sandra B. Mortham
Secretary of State
FILED
Nov 22 2:42 PM '82
SECRETARY OF STATE
TALLAHASSEE, FLORIDA
STATE OF FLORIDA
ARTICLES OF INCORPORATION
OF
TRANSPORTATION SAFETY CONTRACTORS, INC.
The undersigned, acting as incorporators of a Corporation under the
Florida General Corporation Act, adopt The following Articles of Incorporation:
FIRST: The name of the corporation is TRANSPORTATION SAFETY
CONTRACTORS, INC.
SECOND: The period of its duration is perpetual.
THIRD: The date and time of the commencement of the corporation
existence is the time of filing of Articles by the Department of State.
FOURTH: The purpose or purposes for which the corporation is organized
are:
To manufacture, construct, install, distribute, market and sell
highway and traffic control products and to engage in the transaction of any or
all lawful business for which corporations may be incorporated under the
provisions of the Florida General Corporation Act.
FIFTH: The aggregate number of shares which the corporation shall have
authority to issue is: fifteen thousand (15,000) common shares of the par value
of One Dollar ($1.00) each.
SIXTH: Provisions granting preemption rights are:
No shareholder shall have any preemptive rights to subscribe for or to
purchase any shares or other securities issued by the corporation.
SEVENTH: The street address of the initial registered office of the
corporation is c/o CT Corporation System, 8751 West Broward Blvd., City of
Plantation. Florida 33324, and the name of its initial registered agent as such
address is CT Corporation System.
EIGHT: The number of directors constituting the initial board of
directors of the corporation is three and the names and addresses of the persons
who are to serve as directors until the first annual meeting of shareholders or
until their successors are elected and shall qualify are:
NAME ADDRESS
---- -------
William E. Barlow 8583 Gardenia Drive
Largo, Florida 33543
C. Doug Hubbard 66 Country Club Rd.
Zephyrhills, Florida 33599
R. Joel Tharpe 2110 Alder Way
Brandon, Florida 33511
NINTH: The name and address of each incorporator is:
NAME ADDRESS
---- -------
K. L. Slayman 2 Peachtree St., N. W.
Atlanta, Georgia 30383
R. L. Tuttle, Jr. 2 Peachtree St., N. W.
Atlanta, Ga. 30383
R. W. McEver 2 Peachtree St., N. W.
Atlanta, Ga. 30383
Dated November 19, 1982.
/s/ K. L. Slayman
-----------------
K. L. Slayman
/s/ R. L. Tuttle, Jr.
---------------------
R. L. Tuttle, Jr.
/s/ R. W. McEver
----------------
R. W. McEver
Incorporators
STATE OF GEORGIA
COUNTY OF FULTON
The foregoing instrument was acknowledged before me this 19th day of
November, 1982, by K. L. Slayman, R. L. Tuttle, Jr. and R. W. McEver of
TRANSPORTATION SAFETY CONTRACTORS, INC.
EDNA B. BELL
My commission expires Notary Public, Georgia, State at Large
My Commission Expires Aug. 7, 1983
/s/ Edna B. Bell
--------------------------------------
Notary Public
CT Corporation System having been designated to act as
registered agent hereby agrees to act in this capacity.
CT CORPORATION SYSTEM
/s/ Jerry I. Dawson
--------------------------------------
Jerry I. Dawson
Assistant Secretary
FILED
SECRETARY OF STATE
DIVISION OF CORPORATIONS
94 JUN 24 AM 9:37
ARTICLES OF MERGER
NEW TSC, INC.,
A Florida Corporation
INTO
TRANSPORTATION SAFETY CONTRACTORS, INC.
A Florida Corporation
Pursuant to the provisions of the Florida General Corporation Act, the
undersigned corporations have adopted an Agreement of Merger and hereby adopt
the following Articles of Merger:
1. The names of the undersigned corporations are: New TSC, Inc., a
Florida corporation and Transportation Safety Contractors, Inc., a Florida
corporation.
2. Transportation Safety Contractors, Inc. shall be the surviving
corporation.
3. The name of the surviving corporation shall be Transportation Safety
Contractors, Inc.
4. The following plan of merger was approved by the undersigned
corporations on June 21, 1994 in the manner prescribed by Florida law:
(a) New TSC, Inc. will be merged into Transportation Safety
Contractors, Inc., which will be the surviving corporation. The surviving
corporation will retain the name, Transportation Safety Contractors, Inc., and
its domicile shall remain Florida;
(b) Each shareholder of New TSC, Inc., will receive one share of
common stock of Transportation Safety Contractors, Inc. stock for each share of
common stock owned in New TSC, Inc.; as 1:1 exchange ratio.
5. The agreement of merger of the undersigned corporations was adopted
pursuant to Florida law by the unanimous vote of the Board of Directors and
stockholders of the respective corporations on June 21, 1994. The merger of the
undersigned corporations will become effective immediately after these articles
are filed by the Department of State for the state of Florida.
These Articles of Merger have been executed on this 22nd day of June 1994
----
by the parties set forth below:
NEW TSC, INC.,
a Florida corporation
By: /s/ Gideon Taylor
--------------------------
GIDEON TAYLOR, President
/s/ Gideon Taylor
--------------------------
GIDEON TAYLOR, Secretary
TRANSPORTATION SAFETY
CONTRACTORS, INC.,
a Florida corporation
By: /s/ Clark W. Barlow
--------------------------
CLARK W. BARLOW, President
/s/ C. Douglas Hubbard, Secretary
---------------------------------
C. DOUGLAS HUBBARD, Secretary
STATE OF FLORIDA )
) SS:
COUNTY OF HILLSBOROUGH )
The foregoing instrument has been sworn and subscribed before me this 22nd
----
day of June 1994 by GIDEON TAYLOR, President and Secretary of NEW TSC, INC., a
Florida corporation, on behalf of the corporation, who is personally known to me
or who has produced his drivers license as identification.
/s/ Pamela M. Zagorski
---------------------------------
Notary Public, State of Florida
at Large
My commission expiries:
------------------------------------
OFFICIAL NOTARY SEAL
PAMELA M ZAGORSKI
NOTARY PUBLIC STATE OF FLORIDA
COMMISSION NO. CC241297
MY COMMISSION EXP. NOV. 8, 1996
------------------------------------
2
STATE OF FLORIDA )
) SS:
COUNTY OF HILLSBOROUGH )
The foregoing instrument has been sworn and subscribed before me this 22nd
----
day of June 1994 by CLARK W. BARLOW and C. DOUGLAS HUBBARD, President and
Secretary, respectively, of TRANSPORTATION SAFETY CONTACTORS, INC., a Florida
corporation, on behalf of the corporation, who is personally known to me or who
has produced their drivers licenses as identification.
/s/ Pamela M. Zagorski
---------------------------------
Notary Public, State of Florida
at Large
My commission expiries:
------------------------------------
OFFICIAL NOTARY SEAL
PAMELA M ZAGORSKI
NOTARY PUBLIC STATE OF FLORIDA
COMMISSION NO. CC241297
MY COMMISSION EXP. NOV. 8, 1996
------------------------------------
3
BY-LAWS
OF
TRANSPORTATION SAFETY CONTRACTORS, INC.
ARTICLE ONE
CAPITAL STOCK
1.1 Share certificates shall be numbered in the order in which
they are issued. They shall be signed by the President and Secretary and the
seal of the Corporation shall be affixed thereto. Share certificates shall be
contained in a stock book and shall be issued in consecutive order therefrom. On
the stub of each certificate shall be entered the name of the person owning the
shares, the number of shares, and the date of issue. Share certificates
exchanged or returned shall be cancelled by the Secretary and placed in their
original place in the stock book.
1.2 Transfers of shares shall be made on the stock book of the
Corporation by the holder in person or by power of attorney, or surrender of the
old certificate for such shares, duly assigned.
1.3 The holders of common shares shall be entitled to one vote for
each share of stock standing in their name.
ARTICLE TWO
SHAREHOLDERS' MEETING
2.1 The annual meeting of shareholders of the Corporation shall be
on the 2nd Tuesday in October of each year within or without the State of
Georgia at such place as may from time to time be fixed by the Board of
Directors.
2.2 Al all meetings of shareholders, the holders of common shares
shall be entitled to cast their one vote for each common share, either in person
or by written proxy.
2.3 Notice of any meeting of shareholders shall state the date,
place and hour of the meeting and, in case of a special meeting, shall state the
purpose for which the special meeting is called.
2.4 Special meetings of the shareholders may be called at any time
by the President or any holder or holders of as much as twenty-five percent
(25%) of the outstanding shares of the Corporation upon not less than ten nor
more than sixty days' notice, either mailed to the last known address or
personally given to each shareholder. Notice of a special meeting may be waived
by instrument in writing. Attendance at such meeting in person or by proxy shall
constitute a waiver of notice thereof.
2.5 At all meetings of shareholders a majority of the outstanding
shares shall constitute a quorum for the transaction of business, and no
resolution or business shall be transacted without the favorable vote of a
majority of the shares represented at the meeting and entitled to vote. A lesser
number may adjourn from day to day.
2.6 Any action to be taken at a meeting of the shareholders of the
Corporation, or any action that may be taken at a meeting, may be taken without
a meeting if a consent in writing setting forth the action so taken shall be
signed by all of the shareholders entitled to vote with respect to the subject
matter thereof.
ARTICLE THREE
DIRECTORS
3.1 Subject to these By-Laws, or any lawful agreement between the
shareholders, the full and entire management of the affairs and business of the
Corporation shall be vested in the Board of Directors, which shall have and may
exercise all of the power that may be exercised or performed by the Corporation
..
3.2 The number of Directors shall not be more than seven (7) nor
less than three (3) persons. The exact number of Directors within such maximum
and miminum shall be fixed by resolution of the shareholders from time to time.
The Directors need not be shareholders of the Corporation. The number of
Directors may be changed by an amendment to the By-Laws, adopted by the
shareholders. A majority of the Directors shall constitute a quorum for the
transaction of business. All restrictions adopted and all business transacted by
the Board of Directors shall require the affirmative vote of a majority of the
Directors present at the meeting. Each person who is
elected to the Board of Directors, shall hold such office until the next annual
meeting of shareholders and his successor is elected and qualified, or until his
earlier resignation, removal from office or death.
3.3 The Directors may fill the place of any Director which may
become vacant prior to the expiration of his term, such appointment by the
Directors to continue until the expiration of the term of the Director whose
place has become vacant.
3.4 The Directors shall meet as soon as practicable after the
adjournment of the annual meeting of the shareholders, for the appointment and
election of officers and for the transaction of any other business. Special
meetings of the Directors may be called at any time by the Chairman of the Board
of Directors, by the President or by any two Directors, on three days' notice.
Notice of any such meeting may be waived by instrument in writing. Attendance in
person at such meeting shall constitute a waiver of notice thereof. The
signature of any Director approving the minutes of any meeting of the Board of
Directors, entered thereon, shall be effective to the same extent as if such
Director had been present at such meeting. Any meeting of the Board of Directors
may be held within or without the State of Georgia at such place as may be
determined by the person or persons calling the meeting.
3.5 Any action to be taken at a meeting of the Directors, or any
action that may be taken at a meeting of the Directors, may be taken without a
meeting if a consent in writing, setting forth the action so taken, shall be
signed by all of the Directors.
3.6 Members of the Board of Directors, or any committee
designated by such Board, may participate in a meeting of such Board or
committee by means of conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other
and participation in a meeting pursuant to this subsection shall constitute
presence at such meeting.
3.7 A Director of the Corporation who is present at a meeting of
the Board of Directors at which action on any corporate matter is taken shall be
presumed to have assented to the action unless his dissent shall be entered in
the minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as the Secretary of the
meeting before the adjournment thereof or shall forward such dissent by
registered mail to the Secretary of the Corporation immediately after the
adjournment of the meeting. Such right to dissent shall not apply to a Director
who voted in favor of such action.
ARTICLE POUR
OFFICERS
4.1 The officers of the Corporation shall consist of a President,
a Vice President, a Secretary and a Treasurer. Any officer may hold more than
one position, but the same person shall not be President and Secretary. The
officers shall be elected by the Directors and shall serve at the pleasure of
the Board of Directors.
4.2 The President shall be the chief executive officer of the
Corporation and shall have general and active management of the operation of
the Corporation. He shall be responsible for the administration of the
Corporation, including general supervision of the policies of the Corporation,
general and active management of the financial affairs of the Corporation, and
shall execute bonds, mortgages or other contracts under the seal of the
Corporation. He shall only borrow money on behalf of the Corporation pursuant to
authority from the Board of Directors. The President shall have the authority to
institute or defend legal proceedings when the Directors are deadlocked.
4.3 The Vice President shall perform all duties incumbent upon the
President during the absence or disability of the President and shall perform
such other duties as these By-Laws may provide or the Board of Directors may
prescribe.
4.4 The Secretary shall keep minutes of all meetings of the
shareholders and Directors and have charge of the Minute Book, stock books and
seal of the Corporation and shall perform such other duties and have such other
powers as may from time to time be delegated to him by the President or the
Board of Directors.
4.5 The Treasurer shall be charged with the management of the
financial affairs of the Corporation and shall have the power to recommend
action concerning the Corporation's affairs to the President.
4.6 Assistants to the Secretary and Treasurer may be appointed by
and shall have such duties as shall be delegated to them by the President or the
Board of Directors.
4.7 All checks or demands for money and notes of the Corporation
shall be signed by such officer or officers or other person or persons as the
Board of Directors may from time to time designate.
ARTICLE FIVE
SEAL
The seal of the Corporation shall be in such form as the Board of
Directors may from time to time determine. In the event it is inconvenient to
use such a seal at any time, the signature of the Corporation followed by the
word "Seal" enclosed in parentheses or scroll shall be deemed to be the seal of
the Corporation. The seal shall be in the custody of the Secretary and affixed
by him on the certificates of stock and such other papers as may be directed by
law, by these By-Laws or by the Board of Directors.
ARTICLE SIX
AMENDMENT
These By-Laws may be altered, amended, repealed, or added to by the
affirmative vote of the holders of a majority of the shares entitled to vote in
the election of any Director at an annual meeting or at a special meeting called
for that purpose, provided that a written notice shall have been sent to each
shareholder of record entitled to vote at such meeting at his last known post
office address at least ten (10) days before the date of such annual or special
meeting, which notice shall state the alterations, amendments, additions, or
changes which are proposed to be made in such By-Laws. Only such changes shall
be made as have been specified in the notice. The By-Laws may also be altered,
amended, repealed, or new By-Laws adopted by a majority of the entire Board of
Directors at a regular or special meeting of the Board. However, any By-Laws
adopted by the Board may be altered, amended or repealed by the shareholders,
and any By-Law provisions repealed, amended, adopted or altered by the
shareholders may not be repealed, amended, adopted or altered by the Board of
Directors if so provided by resolution of the shareholders.
ARTICLE SEVEN
REIMBURSEMENT OF DISALLOWED COMPENSATION AND EXPENSE
In the event any compensation paid to an officer of the Corporation or
expenses paid for an officer, or any reimbursement of expense paid to an officer
shall, upon audit or other examination of the income tax returns of the
Corporation, be determined not to be allowable deductions from the gross income
of the Corporation and such determination shall be acceded to by the Board of
Directors of the Corporation, or such determination shall be made final by the
appropriate State or Federal taxing authority or a final judgment of a court of
competent jurisdiction, and no appeal shall be taken therefrom, or the
applicable period for filing notice of appeal shall have expired, then in such
event, such officer shall repay to the Corporation the amount of such disallowed
compensation or expenses, or both. It shall be the duty of the Directors, as a
Board, to enforce payment of such amount disallowed. In lieu of payment by such
officer, subject to the determination of the Directors, proportionate amounts
may be withheld from his future compensation payments until the amount owed to
the Corporation has been recovered.
ARTICLE EIGHT
RESTRICTION ON TRANSFER OF STOCK
8.1 No transfer by a shareholder of this Corporation of any of his
or her shares (other than by gift, by will or by the laws of descent and
distribution) shall be made on the books of the Corporation and no unregistered
transfer of any legal or equitable interest in any such shares shall be made or
be effective unless all the provisions of this Article shall have been complied
with.
8.2 First the shares shall be offered for sale in writing to the
Corporation at a price and terms fixed in such offer. The offer shall be
delivered or mailed to the Corporation. The Corporation may, within ten days
after the receipt of such written offer, purchase all or any part of such shares
by mailing or delivering a written acceptance to that effect to the person
making such offer. The Corporation may by the
affirmative vote of a majority of the Board of Directors, purchase such shares
only out of unreserved and unrestricted earned surplus; and the Corporation may,
with the affirmative vote of a majority of the outstanding shares entitled to
vote thereon, purchase such shares out of unreserved and unrestricted capital
surplus. If the Corporation shall accept such offer in whole or in part, it
shall specify a settlement date not more than ten days after the date of such
acceptance for the delivery to it, against payment, of the certificates
representing the shares so purchased. Such certificates shall be delivered duly
endorsed for transfer with signature guarantee.
8.3 If the Corporation shall not purchase all of such shares, the
Corporation shall on behalf of the registered owner promptly notify its
shareholders in writing by mail or personal delivery that the balance of such
shares is available for purchase by shareholders at the price and terms
specified in the offer. Each shareholder may elect to purchase all or any part
of such shares by a written acceptance to that effect received by the
Corporation within fifteen days after the date of mailing or delivery of such
notification.
8.4 If shareholders shall elect to purchase in the aggregate more
shares than are available, the available shares shall be divided among the
accepting shareholders in proportion to their registered ownership of shares of
the Corporation, rounding out fractions of shares, if any, in favor of smaller
shareholders, and without allocating to any shareholder shares which he does not
desire to purchase. Such apportionment shall be made by the President of the
Corporation and he shall fix the earliest practicable settlement date for the
completion of the purchase of such shares and shall notify all interested
persons of the apportionment and the settlement date by such means as he shall
deem sufficient.
8.5 Promptly after such settlement, or if no share holders elect
to purchase such shares then promptly after the expiration of the time for such
election, the President shall determine whether all of the provisions of this
Article have been complied with and if they have, he shall declare the
unpurchased shares free shares and shall notify the registered owner of such
determination.
8.6 For a period of three months beginning on the first full
business day following the date of such notification the shares so declared to
be free may be sold by the owner thereof to any person, whether or not a
shareholder, at a price
not less than the price at which the shares were offered to the Corporation and
its shareholders, and at terms not more favorable than the terms at which the
shares were offered to the Corporation and its shareholders. After such three
month period such shares shall again become subject to the restrictions imposed
by this article.
8.7 The President's decision regarding the apportionment among
the shareholders, the settlement and all matters relating to the interpretation
of this Article shall be final. In the absence of the President, such decisions
shall be made by a Vice President. This Article shall not be amended by the
Board of Directors.
8.8 No transfer of any shares shall be binding upon the
Corporation unless made and recorded upon its books.
8.9 The Corporation shall have the right to refuse to transfer any
share as long as the shareholder demanding the transfer is in any way indebted
to the Corporation, and the Corporation shall have a lien, pledge and privilege
on each share to secure any indebtedness due by the shareholder to the
Corporation.
8.10 A reference to this Article shall be printed upon each share
certificate issued by the Corporation and the provisions of this Article shall
be binding upon every person now or hereafter becoming a shareholder of this
Corporation, all of whom shall take such shares subject to the provisions
hereof; and all pledges, hypothecations or other encumbrances of said shares or
dealings with regard thereto, shall likewise be subject to the provisions
hereof.
BYLAW AMENDMENT
---------------
The undersigned Secretary of TRANSPORTATION SAFETY CONTRACTORS, INC., A
Florida corporation (the "Corporation"), does hereby certify that the following
amendment to the Bylaws was adopted as of July 31, 1997 by written consent of
--
the sole shareholder as authorized by the Bylaws and the laws of the State of
Florida:
Article Three, paragraph 3.2 shall be changed to read as follows:
ARTICLE THREE
BOARD OF DIRECTORS
------------------
3.2 The number of directors shall not be more than seven (7) or
less than one (1) person. The number of directors may be increased or
decreased from time to time by amendment to these bylaws or by
resolution of the Board of Directors or the shareholders, but shall
never be less than one (1), nor shall any decrease have the effect of
shortening the term of any incumbent director.
DATED as of the 31st day of July, 1997.
----
/s/ Billy V Ray Jr.
---------------------------
Billy V. Ray, Jr., Secretary