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EXHIBIT 10.22
ASSET PURCHASE AGREEMENT
BETWEEN
KAL HELP ENTERPRISES, INC.
(THE "SELLERS")
AND BRETT S. HARDT AND JEFF ALBRECHT
(THE "STOCKHOLDERS")
AND
SNELLING AND SNELLING, INC. ("PURCHASER")
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TABLE OF CONTENTS
Page
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1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Sale and Transfer of Assets . . . . . . . . . . . . . . . . . . . . . 7
3. Assumption of Liabilities . . . . . . . . . . . . . . . . . . . . . . 7
4. Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
5. Allocation of Purchase Price . . . . . . . . . . . . . . . . . . . . .9
6. Allocation of Expenses . . . . . . . . . . . . . . . . . . . . . . . 9
7. Collection of Accounts Receivable . . . . . . . . . . . . . . . . . . 10
8. Closing Deliveries by the Sellers and Stockholders . . . . . . . . . 11
9. Closing Deliveries by Purchaser . . . . . . . . . . . . . . . . . . . 14
10. Representations and Warranties of the Sellers
and the Stockholders . . . . . . . . . . . . . . . . . . . . . . . . 15
11. Covenants of the Sellers and the Stockholders . . . . . . . . . . . . 19
12. Representations and Warranties of Purchaser . . . . . . . . . . . . . 23
13. Covenants of Purchaser . . . . . . . . . . . . . . . . . . . . . . . 24
14. Indemnity by the Sellers and the Stockholders . . . . . . . . . . . . 25
15. Indemnity by Purchaser . . . . . . . . . . . . . . . . . . . . . . . 26
16. Termination of Agreements . . . . . . . . . . . . . . . . . . . . . . 26
17. Loss or Destruction . . . . . . . . . . . . . . . . . . . . . . . . . 27
18. Conditions Precedent to Purchaser's
Obligation to Close . . . . . . . . . . . . . . . . . . . . . . . . . 27
19. Conditions Precedent to the Sellers'
Obligation to Close . . . . . . . . . . . . . . . . . . . . . . . . . 28
20. Additional Post-Closing Responsibilities . . . . . . . . . . . . . . 29
21. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
22. Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
23. General Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 34
24. Mediation and Arbitration . . . . . . . . . . . . . . . . . . . . . . 35
25. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
26. Bulk Transfer Laws . . . . . . . . . . . . . . . . . . . . . . . . . 37
27. Release by Sellers and Stockholders . . . . . . . . . . . . . . . . . 38
28. Release by Purchaser . . . . . . . . . . . . . . . . . . . . . . . . 39
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SCHEDULES
Schedule 1 - Tangible Assets
Schedule 2 - Assumed Contracts
Schedule 3 - List of Receivables to be Delivered at Closing
Schedule 4 - Allocation of Purchase Price
Schedule 5 - Encumbrances
Schedule 6 - Employees
Schedule 7 - Promissory Note
Schedule 8 - Subordination Agreement
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is entered into
effective as of this 16th day of October, 1996, by and among KAL Help
Enterprises, Inc., an Illinois corporation (the "Sellers"), and BRETT S. HARDT
AND JEFF ALBRECHT (the "Stockholders"), on one hand, and SNELLING AND SNELLING,
INC. ("Purchaser"), a Pennsylvania corporation, on the other hand.
RECITALS
WHEREAS Sellers are operating one (1) "Snelling Personnel
Services" office (the "Office") pursuant to a certain franchise agreement with
Purchaser at the following location:
Office No. Location of Office. Date of Franchise Agreement.
- -------------------- ------------------- ----------------------------
F0260 3711 S. Westnedge Avenue May 24, 1994
Kalamazoo, Michigan 49008
WHEREAS, Stockholders are the owners of one hundred percent (100%) of
the issued and outstanding common stock of Sellers;
WHEREAS, Sellers desire to sell, transfer, convey and assign to
Purchaser, and Purchaser desires to purchase, under the terms and conditions
set forth herein, all of the assets of Sellers associated with the Office,
including the trademarks, service marks, and trade names, if any, and the good
will associated with the Office;
WHEREAS, Sellers' franchise agreement with Purchaser is referred to in
this Agreement as the "Franchise Agreement."
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WHEREAS, Purchaser also desires to obtain assignments of certain
contracts and agreements relating to the operation of Sellers' Office and
agrees to assume certain of Sellers' obligations and liabilities.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the mutual promises
contained herein, the parties agree as follows:
1. DEFINITIONS. The following words shall have the following
meanings when used in this Agreement:
(a) "Assets" shall mean all of the rights, title and interest
of Sellers in the assets, properties, rights, claims and contracts of every
kind, character and description, whether real or personal, tangible or
intangible, which are used or usable in, or relate to, the operation of the
Office, without regard to whether reflected on the Sellers' financial
statements or books. Specifically excluded from the Assets being sold
hereunder are any accounts receivable of the Sellers related to work performed
or services provided through the close of business of the day immediately prior
to the Closing Date. Assets being acquired by Purchaser are:
(i) the tangible assets set forth and identified as
being acquired by Purchaser in Schedule 1 to this Agreement;
(ii) all contracts and relationships of Sellers with
clients and with temporary employees (as those terms are defined in the
Franchise Agreement);
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(iii) Sellers' rights in and to the telephone numbers and
telephone directory advertising for the Office, and all other intangible
property, trade secrets, rights under Assumed Contracts (as defined in Section
3), permits, and licenses associated with the Office;
(iv) any Internet names registered by Sellers;
(v) all of Sellers' trade names, trademarks, or service
marks used, or available for use, in Sellers' business;
(vi) the rights of the Sellers under the assumption of
the Lease of real property relating to the Office (the "Lease");
(vii) all inventory and supplies on hand as of the
Closing Date;
(viii) all business papers and records pertaining to the
Office, including but not limited to personnel records (including payroll
records) concerning each employee of the Sellers who will become employed by
the Purchaser after the Closing Date, client records, vendor lists, and
operations manuals; and
(ix) all Placement Receipts, if any, (as that term is
defined in the Franchise Agreement) except for those for which the employee has
both been offered permanent employment by a client and accepted such offer of
employment on or before the Closing Date.
(b) "Closing" shall mean the events which take place for the
purpose of consummating the transactions contemplated by this Agreement,
commencing 9:00 a.m. on MONDAY, NOVEMBER 4, 1996, at CHICAGO, ILLINOIS, or at
another acceptable time and location to which the parties agree; and
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(c) "Closing Date" shall mean 12:01 a.m. on Monday, November
4, 1996.
2. SALE AND TRANSFER OF CERTAIN ASSETS. Upon the terms and subject
to the conditions set forth in this Agreement, the Sellers agree to sell,
transfer, assign, grant, convey and deliver the tangible Assets listed on
Schedule 1 and all other Assets listed in Subsection 1(a) to Purchaser on the
Closing Date, free and clear of all mortgages, liens, security interests,
pledges, charges and other encumbrances. Notwithstanding any language that may
be stated in this Agreement, Sellers' accounts receivable as that term is
described herein, are not an Asset being sold, transferred, assigned, granted,
or conveyed to Purchaser.
3. ASSUMPTION OF LIABILITIES. Purchaser has not assumed, and shall
not assume, any liability or obligation of any nature, known or unknown,
existing or contingent, of the Sellers, except that, at Closing: (i) Purchaser
shall assume the Lease unless Purchaser notifies Sellers in writing within ten
(10) days of the Closing that Purchaser will not assume the Lease; and (ii) the
other written contracts and obligations specifically identified in Schedule 2
to this Agreement (the "Assumed Contracts"). Sellers shall assume and make
payments for the obligations for unused vacation and unused sick leave, if
any, accrued through the Closing Date by each employee of the Sellers. The
Sellers acknowledge that Purchaser does not assume any obligation in connection
with any actual or alleged breach or default of Lease or Assumed Contracts
occurring at any time through the Closing Date. Except for the items specified
in clauses (i) and (ii) above, all obligations, liens, encumbrances, and
liabilities of the Sellers shall continue to be the sole responsibility of the
Sellers and Sellers shall hold Purchaser harmless.
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4. PURCHASE PRICE. In reliance upon the representations and
warranties for the assets named herein, Purchaser shall pay the Sellers Three
Million Dollars ($3,000,000) (the "Purchase Price") plus interest as provided
in Subsection 4(b)(i) below. The Purchase Price shall be paid as follows:
(a) At Closing, Purchaser shall pay the Sellers Thirty Five
Thousand Dollars ($35,000) in cash by certified check;
(b) At Closing, Purchaser shall deliver to Sellers a
subordinated promissory note (the "Note") in the amount of Two Million Nine
Hundred Sixty-Five Thousand Dollars ($2,965,000). Terms of the Note are as
follows:
(i) Interest at prime based upon the prime rate listed
in the Wall Street Journal on the last business day preceding the Closing;
(ii) One (1) payment in the amount of Eight Hundred
Sixty-Four Thousand Dollars ($864,000) plus interest from the Closing Date to
be paid on January 2, 1997. The payment shall be by certified check sent
overnight by the close of business; and
(iii) One (1) payment in the amount of Two Hundred Fifty-
Six Thousand Dollars ($256,000) plus interest from the Closing Date to be paid
on February 3, 1997. The payment shall be by certified check sent overnight by
the close of business.
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(c) Twenty (20) equal payments of the remaining principal of
One Million Eighty Hundred Forty-Five Thousand Dollars ($1,845,000), plus
interest from the Closing Date, to be paid quarterly on the last business day
of the month, beginning March 31, 1997, with a final payment to be made on
December 31, 2001.
5. ALLOCATION OF PURCHASE PRICE. In accordance with Section
1060 of the Internal Revenue Code of 1986, as amended, the Purchase Price shall
be allocated in the manner set forth in Schedule 4 to this Agreement. The
Sellers, the Stockholders, and Purchaser each covenant and warrant to each
other that: (i) in no tax return filed by the parties or any of their
respective successors or assigns shall the allocation of the Purchase Price be
treated or reported inconsistently with or differently from the allocation of
the Purchase Price set forth in Schedule 4, unless such change in allocation is
the result of a determination by a governing authority for that year or a
preceding year; and (ii) in no tax audit, tax examination, tax or compliance
review or tax litigation will the parties or any of their respective successors
or assigns claim or assert that the allocation of the Purchase Price is or
should be inconsistent with or different from that set forth in Schedule 4,
unless as a result of a determination made by a governing authority in a
preceding year. The parties agree to file all appropriate Internal Revenue
Service Forms with their respective Federal income tax returns for their
respective tax year in which the Closing occurs.
6. ALLOCATION OF EXPENSES. All real estate taxes, personal
property taxes, rents, telephone charges, utilities, and other costs and
expenses of owning or operating the Assets which relate to periods both before
and after the Closing Date (the "Prorated Costs") shall be prorated on a per
diem basis as of the
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Closing Date, with the Sellers responsible for the portion of all such items
which relates to the period through the Closing Date, and Purchaser responsible
for the portion of all such items which relates to the period after the Closing
Date. Prorated Costs shall be settled between Purchaser and Sellers either at
Closing or as soon as practicable thereafter; and
(a) Any sales tax, use tax, excise tax, transfer tax,
recording fee or other tax or fee imposed on the transfer of the Assets from
Sellers to Purchaser shall be paid by Sellers.
7. COLLECTION OF ACCOUNTS RECEIVABLE. With respect to the accounts
receivable for the placement of employees, Sellers shall be entitled to all
monies owed Sellers, as evidenced by the accounts receivable list at time of
Closing covering all work completed through Friday, October 25, 1996, to be
followed by a subsequent report covering accounts receivable up to Closing,
which shall be due Purchaser by Thursday, November 7, 1996. Purchaser shall
be entitled to all monies received from the generation of accounts receivable
subsequent to November 3, 1996; and
(a) As described above, Sellers shall provide at Closing or
immediately thereafter, a list of placement and temporary accounts receivable
due Sellers on the Closing Date. For ninety (90) days subsequent to the
Closing, Purchaser shall be responsible for the collection of such accounts
receivable and shall provide Sellers a weekly report accompanied by all monies
due Sellers in accordance with Sellers' Franchise Agreements with Purchaser
except that Sellers shall be responsible for all collection efforts with
inactive clients' accounts receivable which are over sixty (60) days old.
Inactive client shall be defined as a
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client who has not utilized the services of Sellers within six (6) months of
the Closing Date. Purchaser shall return to Sellers at the end of the ninety
(90) day period all uncollected accounts receivable for further collection
efforts by Sellers. Purchaser shall incur no liability to Sellers for the
uncollectibility of said accounts receivable. Thereafter, Sellers shall submit
to Purchaser monthly reports of all collection activity accompanied by all
monies due Purchaser in accordance with the provisions of the Franchise
Agreement. Sellers shall receive credit for all collections subsequent to
Closing, whether by Sellers or Purchaser, under the Sales Incentive Program
Agreement ("SIP") and shall receive payment in accordance with SIP; and
(b) Sellers shall have access to all records to assist Sellers
in the collection of certain accounts receivable or for litigation or
government filing purposes.
8. CLOSING DELIVERIES BY THE SELLERS AND THE STOCKHOLDERS. The
Sellers and the Stockholders agree to execute and deliver at Closing, or cause
to be executed and delivered at Closing, the following:
(a) Such instruments of transfer, assignment and conveyance as
shall be necessary or desirable in the judgment of Purchaser to vest in
Purchaser good and marketable title to the Assets free and clear of all
mortgages, liens, security interests, pledges, charges and other encumbrances.
Such instruments of transfer shall include:
(i) A Bill of Sale from the Sellers, in the form
furnished to the Sellers by Purchaser;
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(ii) The written consent of the lessor to the assignment
and assumption of the Lease provided, however, if Sellers cannot obtain any
such assignment and assumption, Sellers shall assign any and all rights they
have in the Lease. Sellers shall indemnify and hold harmless Purchaser from
any and all damages and costs incurred by Purchaser if the lessor rejects the
Sellers' assignment of its rights to Purchaser and either reforms the Lease or
terminates the Lease, so long as lessor's action is based upon the assignment
and not a breach by Purchaser of any of the terms of the Lease Purchaser
accepted from Sellers. Sellers shall use their best efforts to obtain all such
assignments and assumptions;
(iii) Cooperation of parties to receive written consents
of third parties under the Assumed Contracts to the assignment and assumption
of the Assumed Contracts as soon as possible;
(iv) Form UCC-3 termination statements, signed by the
creditor, to cancel any financing statements disclosed in Schedule 5 to this
Agreement (other than financing statements filed in connection with Assumed
Contracts);
(v) Unanimous written consents, signed by all
Stockholders of the Sellers, in a form consistent with the Sellers' bylaws and
state laws, approving the transactions contemplated hereunder, and any other
duly executed corporate and other documents which Purchaser may have reasonably
requested hereunder, satisfactory in form and substance, in the reasonable
judgment of Purchaser, and where appropriate certified by the proper corporate
or governmental authorities; and
(vi) The written consents of any other persons whose
approval or consent to the execution, delivery, and performance of this
Agreement by the Sellers is legally or contractually required.
(b) The originals of the Lease, and (if written) the Assumed
Contracts;
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(c) A certificate signed by the president of Sellers to the
effect that all representations and warranties of Sellers contained in this
Agreement are true at and as of Closing, that Sellers have performed all
agreements on its part required to be performed hereunder, and that Sellers are
not in default under any of the provisions of this Agreement;
(d) Copies of insurance policies conforming to Subsection
10(m);
(e) A letter to the telephone company servicing Sellers
requesting transfer to Purchaser of the telephone number (including numbers for
facsimile machines and modems) and listings applicable to the Office;
(f) List of accounts receivable as of the Closing Date as
provided in Section 7;
(g) Any names or addresses Sellers have registered for use on
the Internet; and
(h) No later than five (5) days prior to Closing, Sellers
shall submit to Purchaser such other instruments, documents or affidavits, in
form and substance reasonably acceptable to Purchaser, as may be necessary to
effect the Closing
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9. CLOSING DELIVERIES BY PURCHASER. In addition to delivery of
the amount required under Subsection 4(a) above, Purchaser agrees to execute
and deliver at the Closing, or cause to be executed and delivered at Closing:
(a) Immediately available funds in the amount provided in
Subsection 4(a);
(b) A Promissory Note in accordance with 4(b);
(c) Such instruments as shall be necessary or desirable in the
judgment of the Sellers to effect the assumption by Purchaser of the Lease and
the Assumed Contracts;
(d) Certified copy of resolutions duly adopted by the Board of
Directors of Purchaser authorizing the execution and delivery of this
Agreement and consummation of transactions described herein, which shall be in
full force and effect at the time of delivery;
(e) A certificate signed by the president of Purchaser to the
effect that all representations and warranties of Purchaser contained in this
Agreement are true at and as of Closing, that Purchaser has performed all
agreements on its part required to be performed hereunder, and that Purchaser
is not in default under any of the provisions of this Agreement;
(f) Written consent from the bank, approving the transactions
herein;
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(g) Certified copy of resolutions authorizing Richard H.
Spragins to act or sign documents on behalf of Purchaser as an authorized
agent; and
(h) With respect to Lease deposits, Sellers shall not seek nor
accept the return of the Lease deposit, or any part thereof, and Purchaser
shall pay to Sellers at Closing, among other payments, an amount sufficient to
cover Sellers' Lease deposit with Lessor. In the event lessor terminated the
Lease agreement and the termination is based upon the change of lessees,
Sellers shall request return of Lease deposit from lessor and return to
Purchaser the amount received from lessor.
10. REPRESENTATIONS AND WARRANTIES OF THE SELLERS AND THE
STOCKHOLDERS. The Sellers and the Stockholders, jointly and severally,
represent and warrant as follows:
(a) The Sellers have been duly organized and are validly
existing and in good standing under the laws of the State of Illinois;
(b) The Stockholders together own all of the issued and
outstanding stock of the Sellers. The execution, delivery, and performance of
this Agreement have been duly authorized by the Board of Directors of the
Sellers, and all necessary Stockholders action under the Sellers' bylaws and
Illinois law has been taken for approval of the execution and delivery of this
Agreement by the Sellers, their performance of the terms of this Agreement, and
the consummation of the transactions contemplated hereunder;
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(c) The execution and delivery of this Agreement, the Sellers'
performance hereunder, and the consummation of the transactions herein
contemplated, do not, and to the best of the Stockholders' knowledge will not
immediately or with the passage of time, the giving of notice or otherwise,
result in the breach of, constitute a default or violation under, or accelerate
any obligation under any agreement or other instruments to which either the
Sellers or any of the Stockholders are a party, or may be bound, so as to give
or create any rights in third parties with respect to the Assets;
(d) The Sellers have good title and right to use of all trade
names, trademarks or service marks used or available for use in Sellers'
Office, and neither the Sellers nor the Stockholders have notice of any claim
concerning a violation of or infringement upon the rights of any third party
with respect to the use of any trade name, trademark, service mark, copyright
or patent;
(e) This Agreement and the other agreements and transactions
contemplated herein to which the Sellers are or will be a party will each, upon
execution and delivery, be a legal, valid, and binding obligation of the
Sellers, enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally;
(f) Except as disclosed in Schedule 5, the Sellers have good
and marketable title to the Assets free and clear of all mortgages, liens,
security interests, pledges, charges, obligations and other encumbrances;
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(g) The Sellers have previously delivered to Purchaser the
Sellers' most recent federal income tax returns, balance sheets as of June 30,
1996, together with the Sellers' income statements for the fiscal year then
ended, and the interim balance sheets and income statements of the Sellers,
June 30, 1996, (collectively, the "Financial Statements"). The Financial
Statements reflect or provide for all material claims against, and all material
debts and liabilities relating to, the Office, fixed or contingent, as of the
dates of the Financial Statements. There has not been any change since the
date of the most recent Financial Statements which materially and adversely
affected the Office or the Assets or the financial condition or results of the
operation of the Sellers. The Financial Statements are true, correct and
complete and were prepared in good faith in accordance with a cash basis of
accounting which system is a comprehensive accounting method used by Sellers;
(h) The Sellers have filed all federal, state, and local tax
returns including income, sales, and payroll, which were required to be filed
prior to the date of this Agreement and have made payment of all taxes shown by
those returns to be due and payable;
(i) The Sellers have all requisite power and all known
necessary permits, certificates, contracts, approvals and other authorizations
required by federal, state, city, county or other municipal bodies to own,
lease, and use the Assets to operate the Office in the manner in which they are
presently operated;
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(j) In connection with the operation of the Office and
ownership and use of the Assets, there are not now and have not been any
material failures to comply with any applicable known local, state or federal
laws, regulations, ordinances or administrative or judicial orders, and no
allegations have been made of any such failure;
(k) Sellers are not subject to any order of any court or
governmental authority; any pending or, to the best of the Sellers' and the
Stockholders' knowledge, threatened action, suit, proceeding, inquiry or
investigation at law or in equity; or any proceeding before any court,
arbitrator, public board or body, in which an unfavorable decision, ruling or
finding would, in any way, prevent the carrying out of this Agreement or any of
the transactions contemplated hereunder, declare unlawful any such
transactions, cause such transactions to be rescinded, have a material adverse
effect on the Office or the financial condition of the Sellers;
(l) Except for the Lease and the Assumed Contracts, and the
encumbrances listed in Schedule 5, there are no agreements, Lease, contracts,
charges, encumbrances or restrictions which may restrict Purchaser's use or
right to use any of the Assets or which create obligations for which Purchaser
could be liable;
(m) The Sellers have maintained liability insurance for any
claims which may have arisen or cause of action which may have accrued during
Sellers' ownership and/or operation of the Assets and the Office. Such
liability insurance is of the "occurrence" type, so that if the policies are
discontinued by the
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Sellers after the Closing Date, liability insurance coverage will nevertheless
continue (subject to the terms and conditions of such policies) with respect to
such claims and causes of action;
(n) Neither this Agreement nor any Exhibit, Schedule, or
attachment hereto, nor any certificate or other information or document
furnished by or on behalf of the Sellers or the Stockholders knowingly contains
any untrue statement of a material fact, or knowingly omits to state a material
fact necessary in order to make the statements contained herein or therein not
misleading;
(o) Schedule 6 to this Agreement is a list of all persons
currently employed by the Sellers. Schedule 6 accurately and completely shows
the listed employees' current rates of compensation. Sellers have no
employment agreements with any of its employees which Purchaser will be
required to assume and has no oral or written understandings with any of its
employees which relate to terms or conditions of such employee's employment
which Purchaser will be required to assume. Purchaser has agreed to employ
under employment at will agreements for Sellers' staff employees; and
(p) The Sellers have no pension sharing plans or employee
benefit plans (as that term is defined in the federal law commonly known as the
Employees' Retirement Income Security Act, as amended) for any of its
employees, which Purchaser will be required to assume.
11. COVENANTS OF THE SELLERS AND THE STOCKHOLDERS. The Sellers and
the Stockholders covenant that, between the date of this Agreement and the
Closing, they will:
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(a) Carry on the business of the Office in the ordinary
course;
(b) With Sellers' approval which will not be unreasonably
withheld and subject to any attorney client privilege, give Purchaser and its
attorneys, auditors and other representatives full access during normal
business hours to the Office and to the properties, books, contracts,
commitments and records pertaining to the Office;
(c) With Sellers' approval which will not be unreasonably
withheld and subject to any attorney client privilege, provide Purchaser with
access to such information concerning the affairs of the Office as Purchaser
may reasonably request, including authorizing the Sellers' auditors, attorneys
and other representatives to cooperate with Purchaser's auditors and attorneys
and other representatives and authorizing the Sellers' auditors to give
Purchaser's auditors full access to their files and working papers with respect
to the Office;
(d) Do all reasonable things and cause all reasonable things
to be done to ensure that the warranties and representations of the Sellers and
the Stockholders contained in this Agreement remain true and correct throughout
the period until Closing, as if such representations and warranties were
continuously made throughout such period;
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(e) Not enter into any new contracts, commitments or
transactions pertaining to the Office, except in the ordinary course of
business;
(f) Not sell, agree to sell, or otherwise dispose of any of
the Assets (other than supplies used or sold in the ordinary course of
business), without the prior written consent of Purchaser;
(g) Use best efforts to obtain the releases of all mortgages,
liens, security interests, pledges, charges, obligations, and other
encumbrances set forth in Schedule 5;
(h) Not create or assume any new pledge, lien, or encumbrance
with respect to the Assets;
(i) Maintain the Assets in as good repair, order, and
condition as they were in as of the date of this Agreement, reasonable wear and
use and damage by fire, acts of God, or other casualty excepted;
(j) Not incur any indebtedness, obligations, or liability with
respect to the Office or Assets or make any payment in respect thereof, except
in the ordinary course of business;
(k) Pay, satisfy, and discharge the current obligations and
liabilities of the Office in the ordinary course of business, including but not
limited to royalties accruing under the Franchise Agreements and any other
amounts payable to Purchaser and its affiliates;
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(l) File all federal, state, and local tax returns which
become due prior to the Closing, and pay all taxes shown by those returns to be
due and payable, together with any interest or penalties which may be assessed
by taxing authorities on any taxes which were not timely paid;
(m) Maintain or cause to be maintained in full force and
effect all of the fire and other insurance on property and all of the
liability and other casualty insurance (including any bonds on personnel) that
was in effect with respect to the Office as of the date of this Agreement;
(n) Use reasonable efforts to preserve intact the Sellers'
business organization and the goodwill of the Sellers' Clients and suppliers;
(o) Conduct advertising and promotion for the Office
consistent with the amount and type of such advertising and promotion conducted
during the twelve months prior to the date of this Agreement;
(p) Maintain the books of account and records of the Office in
the usual manner;
(q) Promptly, at Purchaser's request, join and cooperate in
any application which Purchaser may make in order to ensure the timely transfer
of any licenses, permits, or certificates to Purchaser at Closing;
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(r) Promptly advise Purchaser in writing of any material
adverse change with respect to the Office, the Assets, or the financial
condition of the Sellers; and
(s) Deliver to Purchaser prompt written notice of any event or
condition known to either the Sellers or to any of the Stockholders which, if
it had existed on the date of execution of this Agreement, would have
constituted a breach of any of their representations and warranties under this
Agreement.
12. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents and warrants as follows:
(a) Purchaser has been duly organized and is validly existing
and in good standing under the laws of the Commonwealth of Pennsylvania.
Purchaser is qualified to do business and is in good standing under the laws of
the State of Texas, where it has its headquarters. Purchaser's wholly owned
subsidiary Advance Processing Systems, Inc. is qualified to do business and is
in good standing under the laws of the State of Illinois;
(b) The execution, delivery and performance of this Agreement
have been duly authorized by the Board of Directors of Purchaser, and Purchaser
has the complete and unrestricted power and authority to, and has taken all
corporate action necessary to enter into, execute and deliver this Agreement
and to perform all of its obligations hereunder and to consummate all
transactions contemplated herein; and
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(c) This Agreement and the other agreements and transactions
contemplated herein to which Purchaser is or will be a party will each, upon
execution and delivery, be a legal, valid and binding obligation of Purchaser
enforceable in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally. This Agreement does not conflict with any other
agreement affecting Purchaser.
13. COVENANTS OF PURCHASER. Purchaser covenants that, between the
date of this Agreement and the Closing:
(a) Purchaser will offer to hire the employees of the Sellers
listed on Schedule 6, subject to Purchaser's ordinary pre-employment and post-
employment standards and conditions, at rates of pay and with benefits
consistent with those of similarly-situated employees of Purchaser. Purchaser
shall have no obligation to offer employment to any specific individual listed
in Schedule 6 who does not meet Purchaser's ordinary standards and conditions,
or to offer any individual on Schedule 6 pay or benefits comparable to those
identified in such Schedule. Purchaser assumes no liability for any wages or
other benefits (including but not limited to bonuses, vacations, sick leave,
retirement benefits, and medical benefits) accrued by any person listed in
Schedule 6 during such person's employment by the Sellers. Purchaser shall
recognize the original date of hire of employees shown on Schedule 6 and
employed after Closing by Purchaser for purpose of service related benefits
by Purchaser;
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(b) Purchaser shall use reasonable efforts to assist the
Sellers in obtaining necessary consents and approvals to the assignment of the
Lease and the Assumed Contracts and any other rights which are to be assumed by
Purchaser in accordance with this Agreement;
(c) Purchaser shall make applications to such governmental
authorities and agencies as Purchaser deems appropriate to ensure that
licenses, permits, and certificates held by the Sellers are transferred to
Purchaser as of the Closing, and at the request of the Sellers shall join and
cooperate in any such application which the Sellers may make; and
(d) Purchaser shall do all reasonable things and cause all
reasonable things to be done to ensure that the warranties and representations
of Purchaser contained in this Agreement remain true and correct throughout the
period until Closing, as if such representations and warranties were
continuously made throughout such period.
14. INDEMNITY BY THE SELLERS AND THE STOCKHOLDERS. Without limiting
any of their other obligations under this Agreement, the Sellers and the
Stockholders, individually agree to indemnify and hold harmless Purchaser and
its affiliates, Officers, directors, Stockholders and employees against and
from any loss, liability, damages, cost or expense incurred by them (including,
but not limited to, reasonable attorneys' and accounting fees and expenses)
based upon, arising out of, or relating to: (i) any materially inaccurate,
untruthful or erroneous representation or warranty of the Sellers or the
Stockholders set forth in this Agreement or any certificate or document
delivered pursuant to this Agreement; (ii) any material failure
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to perform with respect to any of the covenants, conditions or agreements of
the Sellers or the Stockholders set forth in this Agreement, or any transaction
contemplated in this Agreement, except that each Stockholder shall be liable to
Purchaser only for Sellers' or Stockholders' individual conduct and compliance
with the non-compete provisions of this Agreement subsequent to the Closing; or
(iii) the ownership or operation of the Office through the Closing Date.
15. INDEMNITY BY PURCHASER. Purchaser agrees to indemnify and hold
harmless the Sellers and the Stockholders against and from any loss, liability,
damages, cost or expense incurred by them (including but not limited to
reasonable legal, attorneys' and accounting fees and expenses) based upon,
arising out of, or relating to: (i) any breach of any representation or
warranty of Purchaser set forth in this Agreement or any certificate or
document delivered pursuant to this Agreement; (ii) the breach of any covenant
or agreement of Purchaser set forth in this Agreement; or (iii) the ownership
or operation of the Office after the Closing Date.
16. TERMINATION OF AGREEMENTS. The Sellers and the Purchaser agree,
that upon completion of the Closing, the Franchise Agreements and any other
agreements relating to the Franchise will terminate without separate notice to
any party as of the Closing Date, subject to the post-termination obligations
of the Sellers and Purchaser under the Franchise Agreement and any other
agreements, including but not limited to SIP. If the parties fail to Close for
any reason, the Franchise Agreement, SIP Agreement, and any other agreements
thereto, shall remain in full force and effect in accordance with their terms.
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17. LOSS OR DESTRUCTION. Sellers shall continue to own and operate
the Offices until the Closing Date. Sellers shall assume all risk of loss,
destruction, or damage due to fire or other casualty until such date.
Purchaser shall have the right to cancel this Agreement if the Offices are
interrupted prior to said date by loss, destruction, or damage due to fire or
other casualty. If Purchaser does not exercise its right to cancel, as stated
herein, Purchaser shall take the Assets in the existing condition, together
with any insurance proceeds payable by virtue of such loss or damage.
18. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATION TO CLOSE. The
obligation of Purchaser to consummate the transactions herein contemplated is,
at Purchaser's option, subject to the following express conditions precedent:
(a) The Assets shall be free and clear of all mortgages,
liens, security interests, pledges, charges, obligations and other
encumbrances;
(b) The representations and warranties of the Sellers and the
Stockholders contained in this Agreement shall be true in all material respects
at and as of Closing, as though such representations and warranties had been
made at and as of the Closing;
(c) The Sellers and the Stockholders shall have delivered all
of the items to be delivered by them to Purchaser at Closing pursuant to
Subsection 8 above, and shall not be in default under any other provision of
this Agreement at or prior to Closing;
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(d) The Assets shall not have been damaged as the result of
any act of God, fire, flood, war, labor disturbance or similar calamity (unless
Purchaser has waived the event), and there shall have been no material adverse
changes in the Assets, the Office, or the financial condition of the Sellers
since the execution of this Agreement;
(e) Purchaser has obtained approval of its Senior Lenders for
this transaction; and
(f) Sellers shall have delivered to Purchaser executed UCC-3
statements for any liens on Sellers' Assets.
19. CONDITIONS PRECEDENT TO THE SELLERS' OBLIGATION TO CLOSE. The
obligation of the Sellers to consummate the transactions contemplated herein at
Closing is, at the option of the Sellers, subject to the following express
conditions precedent:
(a) The representations and warranties of Purchaser contained
in this Agreement were true when made and shall be true in all material
respects at and as of Closing, as though such representations and warranties
had been made at and as of Closing; and
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(b) Purchaser shall have delivered all of the items to be
delivered by it to the Sellers and the Stockholders at Closing pursuant to
Subsection 9 above, and shall not be in default under any other provisions of
this Agreement at or prior to Closing.
20. ADDITIONAL POST-CLOSING RESPONSIBILITIES. The parties shall
comply with the following obligations after the Closing:
(a) At Purchaser's request, without further consideration, the
Sellers and the Stockholders will execute and deliver after Closing such
further instruments of conveyance and transfer and take such other action as
Purchaser may reasonably require for the transfer of the Assets;
(b) At the request of Sellers, without further consideration,
Purchaser will execute and deliver after Closing such further evidence as the
Sellers may reasonably require of Purchaser's assumption of the Lease and the
Assumed Contracts;
(c) For ninety (90) days after the Closing Date at Purchaser's
request, the Sellers and the Stockholders shall assist Purchaser in every
reasonable manner in billing and collection efforts and in maintaining the
business relationships presently enjoyed by the Sellers and the Stockholders
with respect to the Office;
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(d) Except for assisting Professional Staffing Services
initially in the implementation of Spectrum Software, the Sellers and the
Stockholders agree that for a period of three (3) years after the Closing
Date, they will not, directly or indirectly:
(i) own, operate, manage, be employed by, engage in,
provide assistance to, or have a financial interest in any temporary employment
services business, permanent placement business, or similar business within the
county(s) of COOK, DUPAGE AND MCHENRY, in the State of Illinois and within the
county(s) of KALAMAZOO, in the State of Michigan, so long as Purchaser, or a
person or entity deriving title from Purchaser to operate the Office, continues
to operate the Office. For purposes of this provision "temporary employment
services business" includes, but is not limited to, "employee leasing," "temp-
to-hire," and "contract temporary" services;
(ii) solicit employment services business from any
client with whom the Office did business, if such client placed an order with
Sellers within the three (3) year period prior to the Closing Date; or
(iii) for a period of three (3) years employ or seek to
employ any employee of the Office or Purchaser or in any other manner attempt,
directly or indirectly, to influence, induce or encourage any employee to leave
the employment of the Office or Purchaser.
(e) Within fourteen (14) days subsequent to Closing, Sellers
shall provide to Purchaser an affidavit stating that all state and local taxes
due through the Closing Date have been paid. Sellers shall timely file all
federal, state and local tax returns relating to the period through the Closing
Date which become due after the Closing Date; shall timely pay all taxes shown
by such returns to be due and payable,
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together with any interest or penalties which may be assessed by taxing
authorities on any taxes which were not timely paid; and shall deliver to
Purchaser copies of all tax clearance letters and closing notices received from
government authorities which relate to the Office; and
(f) Provide Sellers with the quarterly compliance report
provided Purchaser's senior lenders in accordance with Purchaser's loan
agreement, contemporaneous with submission to the senior lenders.
(g) (i) Sellers and Brett S. Hardt ("Hardt") hereby each
acknowledges, covenants, agrees and authorizes, that if Hardt breaches or
causes Sellers to breach Subsection 20(d) of this Agreement, Purchaser shall
have the right to withhold payment under the Rolling Meadows Note, the
Kalamazoo Note, the Des Plaines Note and all other amounts otherwise payable by
Purchaser to Sellers and the Stockholders, whether or not evidenced by a note
(collectively, the "Note Amounts"); and upon determination of the amount of any
damages sustained by Purchaser because of such breach of Subsection 20(d),
Purchaser shall have the right to offset and retain such damages against an
aggregate amount, which shall equal fifty percent (50%) of the aggregate amount
of all outstanding principal due and owing under and pursuant to the Note
Amounts.
(ii) Sellers and Jeff Albrecht ("Albrecht") hereby each
acknowledges, covenants, agrees and authorizes, that if Albrecht breaches or
causes Sellers to breach Subsection 20(d) of this Agreement, Purchaser shall
have the right to withhold payment under the Rolling Meadows Note, the
Kalamazoo Note, the Des Plaines Note and all other amounts otherwise payable by
Purchaser to Sellers
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and the Stockholders, whether or not evidenced by a note (collectively, the
"Note Amounts"); and upon determination of the amount of any damages sustained
by Purchaser because of such breach of Subsection 20(d), Purchaser shall have
the right to offset and retain such damages against an aggregate amount, which
shall equal fifty percent (50%) of the aggregate amount of all outstanding
principal due and owing under and pursuant to the Note Amounts.
(iii) Sellers and Stockholders each hereby further acknowledge,
covenant and agree that Purchaser shall retain the above-stated rights of
offset and that Purchaser shall not be in breach of the terms of this Agreement
until resolution of the breach of Subsection 20(d) occurs, whether by
agreement, compromise, settlement or final unappealable judgment.
(iv) The withholding of Note payments to either or both
Stockholders and the establishment of actual damages shall be in addition to
all other rights of Purchaser whether at law or in equity.
21. NOTICES. All notices pursuant to this Agreement shall be sent in
writing to addresses set forth below, unless changed by written notice in
accordance with this Section 21. Any notice sent by telecopy shall be
confirmed by mail. To Sellers and/or the Stockholders:
BRETT HARDT
------------------------------------
21839 WEST RIVERIA COURT
------------------------------------
IVANHOE, ILLINOIS 60060
------------------------------------
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JEFF ALBRECHT
------------------------------------
412 HILL COURT
------------------------------------
WAUCONDA, ILLINOIS 60084
------------------------------------
To Purchaser: SNELLING AND SNELLING, INC.
------------------------------------
12801 N. CENTRAL EXPRESSWAY
------------------------------------
SUITE 700
------------------------------------
DALLAS, TEXAS 75243
------------------------------------
ATTN: RICHARD H. SPRAGINS
------------------------------------
Telecopy No.: (214)239-6879
22. TERMINATION. (a) The Sellers or Purchaser may terminate this
Agreement by written notice to the other in the event the transactions
contemplated herein have not closed by NOVEMBER 15, 1996; and
(b) This Agreement may also be terminated at any time prior to
the Closing date:
(i) By mutual consent of Purchaser and Sellers;
(ii) By the Purchaser, if any of the conditions of its
obligations hereunder shall not have been satisfied at or prior to the Closing
on the Closing Date and shall not have been waived by it; and
(iii) By the Sellers, if any of the conditions of its
obligations hereunder shall not have been satisfied at or prior to the Closing
on the Closing Date, or if the senior lender approval by this Agreement shall
not have been obtained by Purchaser and the requirements shall not have been
waived by it.
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(c) Such notice of termination shall be effective as to all
parties to this Agreement, whether or not they receive notice individually. If
this Agreement is terminated by the Sellers or by Purchaser for the reason
stated above without consummation of the transactions contemplated herein, such
termination shall be without liability or further obligation by any party to
any other party to this Agreement.
23. GENERAL PROVISIONS. (a) Each party shall bear its own legal
and other costs and expenses in connection with the negotiation, preparation
and execution of this Agreement, and the performance of the transactions
contemplated hereby;
(b) This Agreement and the documents referred to herein
constitute the entire agreement among the parties with respect to the sale and
purchase of the Assets and supersede all previous written or oral negotiations,
commitments, and writing concerning the same subject matter;
(c) This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument;
(d) This Agreement may be amended only in writing and
executed by all of the parties;
(e) This Agreement will inure to the benefit of, and bind, the
respective heirs, personal representatives, successors and permitted assigns of
the parties;
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(f) The parties represent that no person is entitled to any
brokerage commission, finder's fee, or any other like payment in connection
with any transaction contemplated by this Agreement, by reason of the action of
any party to this Agreement; and
(g) This Agreement shall be governed by the laws of the State
of Texas.
24. MEDIATION AND ARBITRATION. THE PARTIES AGREE THAT ANY AND ALL
DISPUTES, CLAIMS OR CONTROVERSIES ARISING OUT OF OR RELATING TO THIS AGREEMENT
SHALL BE SUBMITTED TO J.A.M.S/ENDISPUTE, OR ITS SUCCESSOR, FOR MEDIATION, AND
IF THE MATTER IS NOT RESOLVED THROUGH MEDIATION, THEN IT SHALL BE SUBMITTED TO
J.A.M.S./ENDISPUTE, OR ITS SUCCESSOR, FOR FINAL AND BINDING ARBITRATION.
EITHER PARTY MAY COMMENCE MEDIATION BY PROVIDING TO J.A.M.S/ENDISPUTE, AND THE
OTHER PARTY A WRITTEN REQUEST FOR MEDIATION, SETTING FORTH THE SUBJECT OF THE
DISPUTE AND THE RELIEF REQUESTED. THE PARTIES WILL COOPERATE WITH
J.A.M.S/ENDISPUTE AND WITH ONE ANOTHER IN SELECTING A MEDIATOR FROM
J.A.M.S/ENDISPUTE'S PANEL OF NEUTRALS, AND IN SCHEDULING THE MEDIATION
PROCEEDINGS. THE PARTIES COVENANT THAT THEY WILL PARTICIPATE IN THE MEDIATION
IN GOOD FAITH, AND THAT THEY WILL SHARE EQUALLY IN ITS COSTS. ALL OFFERS,
PROMISES, CONDUCT AND STATEMENTS, WHETHER ORAL OR WRITTEN, MADE IN THE COURSE
OF THE MEDIATION BY ANY OF THE PARTIES, THEIR AGENTS, EMPLOYEES, EXPERTS AND
ATTORNEYS, AND BY THE MEDIATOR OR ANY J.A.M.S/ENDISPUTE EMPLOYEES, ARE
CONFIDENTIAL, PRIVILEGED AND INADMISSIBLE FOR ANY PURPOSE, INCLUDING
IMPEACHMENT, IN ANY ARBITRATION OR OTHER PROCEEDING INVOLVING THE PARTIES,
PROVIDED THAT EVIDENCE THAT IS OTHERWISE ADMISSIBLE OR DISCOVERABLE SHALL NOT
BE RENDERED INADMISSIBLE OR NON-DISCOVERABLE AS A RESULT OF ITS USE IN THE
MEDIATION.
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THE PARTIES AGREE THAT ANY AND ALL DISPUTES, CLAIMS OR CONTROVERSIES ARISING
OUT OF OR RELATING TO THIS AGREEMENT THAT ARE NOT RESOLVED BY THEIR MUTUAL
AGREEMENT OR MANDATORY OR REASONABLE MEDIATION SET FORTH ABOVE, SHALL BE
SUBMITTED TO FINAL AND BINDING ARBITRATION BEFORE J.A.M.S/ENDISPUTE, OR ITS
SUCCESSOR, PURSUANT TO THE UNITED STATES ARBITRATION ACT, 9 U.S.C. SEC. 1 ET
SEQ. EITHER PARTY MAY COMMENCE THE ARBITRATION PROCESS CALLED FOR IN THIS
AGREEMENT BY FILING A WRITTEN DEMAND FOR ARBITRATION WITH J.A.M.S/ENDISPUTE,
WITH A COPY TO THE OTHER PARTY. THE ARBITRATION WILL BE CONDUCTED IN
ACCORDANCE WITH THE PROVISION OF J.A.M.S/ENDISPUTE'S COMPREHENSIVE ARBITRATION
RULES AND PROCEDURES IN EFFECT AT THE TIME OF FILING OF THE DEMAND FOR
ARBITRATION. THE PARTIES WILL COOPERATE WITH J.A.M.S/ENDISPUTE AND WITH ONE
ANOTHER IN SELECTING AN ARBITRATOR FROM J.A.M.S/ENDISPUTE'S PANEL OF NEUTRALS,
AND IN SCHEDULING THE ARBITRATION PROCEEDINGS. THE PARTIES COVENANT THAT THEY
WILL PARTICIPATE IN THE ARBITRATION IN GOOD FAITH, AND THAT THEY WILL SHARE
EQUALLY IN ITS COSTS. THE PROVISIONS OF THIS PARAGRAPH MAY BE ENFORCED BY ANY
COURT OF COMPETENT JURISDICTION, AND THE PARTY SEEKING ENFORCEMENT SHALL BE
ENTITLED TO AN AWARD OF ALL COSTS, FEES AND EXPENSES, INCLUDING ATTORNEYS FEES,
TO BE PAID BY THE PARTY AGAINST WHOM ENFORCEMENT IS ORDERED.
25. CONFIDENTIALITY. Neither Purchaser nor Sellers, nor any of
their respective Stockholders, affiliates, Officers, employees, agents or
representatives shall: (a) make any press releases or any published statement
concerning the transactions contemplated herein without the prior written
consent of all of the parties hereto, which consent shall not be withheld where
such press releases or statement is required by applicable law; or (b) disclose
the terms or existence of this Agreement to any person or entity, other than to
their respective attorneys and other representatives, and to those parties such
as bankers and
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lessors with whom they must communicate in order to consummate the proposed
transactions. Purchaser and Sellers shall be permitted to discuss the
transactions contemplated herein with their respective suppliers and vendors,
provided that they instruct such suppliers and vendors to keep all such
communications confidential.
26. BULK TRANSFER LAWS. The parties waive compliance with the
requirements of the bulk transfer or bulk sales law of any jurisdiction in
connection with the sale of the Assets to Purchaser under this Agreement.
Sellers shall indemnify and hold Purchaser harmless against any and all losses
incurred by Purchaser as a result of noncompliance with any such laws.
27. RELEASE BY SELLERS AND STOCKHOLDERS. The Sellers and each
Stockholder, for themselves and on behalf of their officers, directors,
employees, successors, representatives, and agents, do hereby irrevocably and
unconditionally release, acquit, and forever discharge (the "Release")
Purchaser, its officers, directors, stockholders, employees, successors,
representatives, and agents from any and all claims, debts, damages, demands,
liabilities, suits in equity, complaints, grievances, obligations, promises,
agreements, rights, controversies, consents, losses, damages, attorneys' fees
and expenses, punitive damages and other compensation, suits, appeals, actions,
and causes of actions, of whatever kind of character, whether heretofore or
hereafter accruing, whether known or unknown, suspected or unsuspected,
specified or unspecified, fixed or contingent, liquidated or unliquidated, for
or because of any matter or thing done, omitted, or suffered to be done by,
Purchaser, its officers, directors, stockholders, employees, successors,
representatives, and agents, for any incidents, including those past and
present, which may have existed prior
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to, or contemporaneously with, the execution of this Agreement, or subsequent
to the execution of this Agreement if arising out of conduct occurring before
the execution of this Agreement. The Sellers and each Stockholder hereby
represent that nothing which is released hereunder has been transferred,
assigned, or given away prior to the date hereof to any person, firm, or
entity.
(a) It is the intention of the Sellers and each Stockholder in
executing this Agreement that the Release shall be effective as a bar to each
and every claim, demand, and cause of action hereinabove specified, and the
Sellers and each Stockholder hereby knowingly and voluntarily waive any and all
rights and benefits. The Sellers and each Stockholder expressly consent that,
this release shall be given full force and effect according to each and all of
its express terms and provisions, including those relating to unknown and
unspecified claims, demands, and causes of action. The Sellers and each
Stockholder acknowledge and agree that this waiver is an essential and material
term of the Release of this Agreement and without the waiver of transaction
contemplated by this Agreement would not be consummated.
28. RELEASE BY PURCHASER. The Purchaser, for itself and on
behalf of their officers, directors, employees, successors, representatives,
and agents, do hereby irrevocably and unconditionally release, acquit, and
forever discharge (the "Release") the Sellers and Stockholders, its officers,
directors, employees, successors, representatives, and agents from any and all
claims, debts, damages, demands, liabilities, suits in equity, complaints,
grievances, obligations, promises, agreements, rights, controversies, consents,
losses, damages, attorneys' fees and expenses, punitive damages and other
compensation, suits, appeals, actions, and causes of actions, of whatever kind
of character, whether heretofore or hereafter accruing, whether
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known or unknown, suspected or unsuspected, specified or unspecified, fixed or
contingent, liquidated or unliquidated, for or because of any matter or thing
done, omitted, or suffered to be done by, the Sellers and Stockholders, its
officers, directors, employees, successors, representatives, and agents, for
any incidents, including those past and present, which may have existed prior
to, or contemporaneously with, the execution of this Agreement, or subsequent
to the execution of this Agreement if arising out of conduct occurring before
the execution of this Agreement. The Purchaser hereby represents that nothing
which is released hereunder has been transferred, assigned, or given away prior
to the date hereof to any person, firm, or entity.
(a) It is the intention of the Purchaser in executing this Agreement
that the Release shall be effective as a bar to each and every claim, demand,
and cause of action hereinabove specified, and the Purchaser hereby knowingly
and voluntarily waives any and all rights and benefits. The Purchaser
expressly consents that, this release shall be given full force and effect
according to each and all of its express terms and provisions, including those
relating to unknown and unspecified claims, demands, and causes of action. The
Purchaser acknowledges and agrees that this waiver is an essential and material
term of the Release of this Agreement and without the waiver of transaction
contemplated by this Agreement would not be consummated.
29. SURVIVAL OF REPRESENTATIONS. All representations, warranties and
agreements made by the parties hereto, shall survive Closing.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
under seal of the date first written above.
KAL HELP ENTERPRISES, INC. Stockholders:
By: /s/ BRETT S. HARDT By: /s/ BRETT S. HARDT
-------------------------- -----------------------------
Brett S. Hardt Brett S. Hardt
President
By: /s/ JEFF ALBRECHT
-----------------------------
Jeff Albrecht
SNELLING AND SNELLING, INC.
By: /s/ RICHARD H. SPRAGINS
-------------------------
Richard H. Spragins
Senior Vice President
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SCHEDULE 1
to
ASSET PURCHASE AGREEMENT
with
KAL HELP ENTERPRISES, INC.
TANGIBLE ASSETS
(ATTACHED)