Exhibit No. 2
Headway Corporate Resources, Inc.
Form 8-K dated June 29, 1998
File No. 0-23170
ASSET PURCHASE AGREEMENT
AGREEMENT, dated as of June 22, 1998, among HEADWAY
CORPORATE RESOURCES, INC., a Delaware corporation ("Headway"),
HEADWAY CORPORATE STAFFING SERVICES OF FLORIDA, L.L.C., a
Delaware limited liability company ("Buyer"), STAFFING SOLUTION
INC., a Florida corporation ("SSI"), INTELLIGENT STAFFING, INC.,
a Florida corporation ("ISI"; SSI and ISI sometimes being
collectively referred to as "Seller"), GARY KAMLER ("Kamler")
and HILARY BENCINI ("Bencini"; Kamler and Bencini being sometimes
collectively referred to as the "Principals" and each,
individually, as a "Principal").
W I T N E S S E T H:
WHEREAS, Buyer wishes to purchase, and Seller wishes to
sell, the assets and business of Seller specified in this
Agreement;
NOW, THEREFORE, the parties agree as follows:
Purchase and Sale of the Acquired Assets.
1.1 Acquired Assets. Subject to the terms and
conditions of this Agreement, and in reliance on the
representations, warranties and agreements set forth herein, at
the Closing (as defined in Section 2), Seller shall sell, convey,
transfer, assign and put Buyer into possession of, and Buyer
shall purchase from Seller, effective as of the Closing Date (as
defined in Section 2), all of Seller's right, title and interest
in and to all of the assets of Seller of every kind, tangible and
intangible, wherever located, excepting only those assets
specifically excluded in Section 1.2, and including, without
limitation:
(a) the office furniture, equipment, computers and
fixtures of Seller listed in Schedule 1.1.A;
(b) all computer software, programs and databases
owned by Seller and Seller's interest in any transferable
computer software licensed by it from others;
(c) all office supplies owned by Seller;
(d) the client agreements and arrangements of Seller
set forth in Schedule 1.1.B;
(e) the equipment leases and other agreements,
contracts and instruments of Seller listed in Schedule 1.1.C,
including, without limitation, the Termination Agreement (as
defined in Section 3.4), except for such rights and obligations
of Seller thereunder as shall be retained by Seller, as set forth
in Schedule 1.1.D;
(f) all rights of Seller with respect to any of
Seller's temporary, permanent, leased or "payrolled" (as that
term is defined in Section 1.3(g)) personnel, including, without
limitation, "self-incorporated" personnel who are placed or
provided by Seller through corporations or other entities of
which it is a shareholder or other owner;
(g) all prepayments and deposits of Seller, including
without limitation, security deposits under leases;
(h) subject to Section 6.13, all intellectual property
rights of Seller listed in Schedule 1.1.E;
(i) originals or true copies of all books and records
of Seller pertaining to the assets referred to in subparagraphs
(a) through (h) above, as appropriate, including customer lists
and credit files, and all those pertaining to Seller's employees
who are hired by Buyer pursuant to Section 10.2;
(j) all permits, licenses, approvals and other
governmental authorizations relating to Seller's business which
are transferable to Buyer, all of which are listed in Schedule
1.1.F;
(k) any other assets not referred to in Section 1.2,
including, without limitation, telephone and facsimile numbers,
internet and e-mail addresses, which are used by Seller in
connection with its business of the placement or provision of
temporary, permanent, leased or payrolled personnel (including,
without limitation, self-incorporated personnel); and
(l) the good will pertaining to Seller's business;
all as the same exist on the date hereof and shall exist on the
Closing Date, subject only to changes occurring in the ordinary
course of business of Seller. All such assets to be acquired are
referred to together as the "Acquired Assets".
1.2 Excluded Assets. The following assets of Seller
are excluded from the Acquired Assets: (a) the consideration
payable to Seller by Buyer, (b) any cash, bank deposits,
certificates of deposit, marketable securities, notes, drafts,
checks or other cash equivalents or similar instruments owned by
Seller, (c) amounts owed to Seller by Uniforce Services, Inc.
("Uniforce") pursuant to the Licensing Agreement, dated October
24, 1991, as amended (the "Boca Raton Licensing Agreement"),
between Seller and Uniforce, the Licensing Agreement, dated
November 27, 1989, as amended (the "Ft. Lauderdale Licensing
Agreement"), between Seller and Uniforce, the Licensing
Agreement, dated July 21, 1992, as amended (the "Miami Lakes
Licensing Agreement"; the Boca Raton Licensing Agreement, the Ft.
Lauderdale Licensing Agreement and the Miami Lakes Licensing
Agreement are sometimes referred to collectively as the
"Licensing Agreements"), between Seller and Uniforce, or the
Termination Agreement (the Licensing Agreements and the
Termination Agreement are sometimes referred to collectively as
the "Uniforce Agreements"), (d) Seller's accounts receivable,
including those payable to Seller or Uniforce under the Uniforce
Agreements for services rendered to Seller's clients by Seller or
Uniforce (collectively, the "Receivables"), (e) any amounts
accrued by Seller or Uniforce (pursuant to the Licensing
Agreements) for services rendered to Seller's clients by Seller
or Uniforce prior to the Closing Date, but which have not been
billed as of the Closing Date (collectively, the "Accruals"), (f)
all claims and rights of Seller to any federal, state or local
refunds, credits, rebates, claims, repayments or benefits of
Taxes (as defined in Section 6.14), (g) any loans receivable of
Seller, (h) any refundable portions of paid insurance premiums
and prepaid federal, state or local income taxes, (i) Seller's
interest in any life insurance policies maintained by Seller on
the life of any employee, (j) any treasury stock held by Seller,
(k) the corporate stock certificate books, ledger books, minute
books and similar corporate records of Seller, (l) Seller's tax
records and any books and records which Seller shall be required
to retain pursuant to any applicable law, rule or regulation
(provided, that at Buyer's request and expense, Seller shall
provide Buyer with copies of any record or document retained by
Seller and, similarly, Buyer, at Seller's request and expense,
shall provide Seller with copies of any record or document
transferred to Buyer hereunder) and (m) all records and
correspondence relating to the foregoing excluded assets.
1.3 Purchase Price.
(a) As consideration for the sale, conveyance,
transfer, assignment and delivery to Buyer of the Acquired
Assets, Buyer shall pay to Seller a purchase price of $1,300,000
(the "Purchase Price"), subject to adjustment (based on the
future performance of the business purchased hereunder) as
provided in Section 1.3(b), as follows:
(i) $1,300,000 payable on the
Closing Date, up to $100,000 of which may be
payable in that number of shares (the
"Shares") of the Common Stock, par value
$.0001 per share, of Headway (the "Common
Stock"), as are determined by dividing
$100,000 (or such lesser amount as Headway,
in its sole discretion, shall determine to
pay in the form of Shares) by the "Closing
Average Price" (defined as the average of the
closing bid and closing asked prices of the
Common Stock on The NASDAQ SmallCap Market
(the "NASDAQ") for each of the 20 trading
days immediately prior to the Closing Date),
with the remainder payable in cash;
(ii) an advance on the "Earnout"
(as defined in Section 1.3(b) (the "Advance")
in the amount of $100,000 if Buyer's "EBITA"
(as defined in Section 1.3(c)) is, for the
six-month period commencing on the Closing
Date, at least equal to $200,000 , which
Advance, if any, shall be payable in cash
within 30 days following the close of such
period; and
(iii) the Earnout on the "Earnout
Payment Dates" (as defined in Section
1.3(d)).
All amounts payable by Buyer pursuant to Sections 1.3(a) and
1.3(b) shall be paid by wire transfer in immediately available
funds to accounts designated by Seller to Buyer not later than
two business days prior to the scheduled date of such payment.
(b) Each of the three consecutive twelve-month periods
commencing on the Closing Date is referred to as an "Earnout
Period". If, for any Earnout Period, Buyer's EBITA equals
$500,000 (the "Base Amount"), Buyer shall pay to Seller $400,000
in cash for such Earnout Period (each, an "Earnout"), subject to
adjustment as provided below:
(i) The Earnout for the first Earnout Period shall be
(A) increased by $1.50 for each $1.00 that Buyer's EBITA for
such Earnout Period exceeds the Base Amount and (B) reduced
by (1) $1.50 for each $1.00 that Buyer's EBITA for such
Earnout Period is less than the Base Amount and (2) the
Advance, if any.
(ii) The Earnout for each of the second and third
Earnout Periods shall be (A) increased by $1.50 for each
$1.00 that Buyer's EBITA for such Earnout Period exceeds the
Base Amount and (B) reduced by $1.50 for each $1.00 that
Buyer's EBITA for such Earnout Period is less than the Base
Amount.
The calculation of the Earnout for each Earnout Period
shall be independent of the calculations for the other Earnout
Periods, and there shall be no cumulation of EBITA from one
Earnout Period to another, except that if the Earnout for the
first or second Earnout Period is negative (that is, less than
zero), the amount of any negative Earnout shall be subtracted
from any positive Earnout, or added to any negative Earnout, for
the following Earnout Period. The fact that EBITA or the
Earnout for any Earnout Period is negative shall not result in
any liability by Seller or the Principals to Buyer. Each of
Seller and the Principals, jointly and severally, shall be liable
for the repayment of the Advance, if any, on the Earnout Payment
Date for the second Earnout Period to the extent that the Advance
has not been repaid pursuant to the Earnouts set forth in clauses
(i) and (ii) above. Any such repayment shall reduce any negative
Earnout as of such date by the amount of the Advance repaid.
(c) For the purposes of this Agreement, "EBITA" means,
for an Earnout Period, "Net Income" (as defined below) without
deductions for (i) interest expense relating to Buyer's purchase
of Seller, (ii) provisions for income taxes and (iii)
amortization of goodwill and other intangible assets resulting
from Buyer's purchase of Seller. Net Income shall exclude
revenues and expenses attributable to acquisitions by Buyer of
the stock (whether of minority or majority positions), or
substantially all of the assets of, other entities after the
Closing Date.
"Net Income" means the net income (or loss) of Buyer
for an Earnout Period attributable to Buyer's continued operation
of Seller's business, as reasonably determined by Headway in
accordance with generally accepted accounting principles. The
calculation of Net Income shall take into account the following
expenses to the extent incurred in the ordinary course of
Seller's business: (i) wage, salary and commission expense of
all temporary, payrolled and full-time employees of Buyer,
including, without limitation, salary and other compensation paid
to Kamler and Bencini; (ii) reasonable travel and entertainment
expenses incurred by Buyer's employees (excluding travel and
entertainment expenses incurred by Kamler and Bencini under their
respective Employment Agreements in connection with the location
by each of them of potential acquisition candidates), (iii)
bonuses paid to Buyer's employees and approved by Kamler and
Bencini; (iv) all amounts attributable to FICA and any other
federal, state and local taxes paid by Buyer on behalf of such
employees; (v) all unemployment insurance premiums, workers'
compensation premiums, medical and disability coverage and any
other benefits provided by Buyer to such employees; (vi) expenses
attributable to the in-house processing by Buyer of the payroll
for such employees; (vii) Buyer's general and administrative
expenses directly attributable to the operation of Seller's
business in the ordinary course; (viii) sales commissions; (ix)
any fall-offs, rebates, discounts, offsets or concessions granted
by Buyer to its clients and any reserves or write-offs for bad
debts; (x) depreciation in connection with the acquisition by
Headway, Buyer or any other subsidiary of Headway of computer and
telecommunications equipment consistent with that used by the
Headway group of companies; (xi) any expenses reasonably and
necessarily incurred by Headway, Buyer or any other subsidiary of
Headway in connection with the transition of the operation of
Seller's business to Buyer as part of the Headway group of
companies, including, without limitation, expenses for the
installation and implementation at Buyer of the third party
accounting and operating software used by Headway; and (xii) an
annual charge of $50,000 for technical and financial support
provided by the Headway group of companies; provided, that the
aggregate amount of depreciation and expenses allocated to Buyer
in respect of clauses (x) and (xi) above solely with respect to
presently existing offices may not exceed $35,000 for any Earnout
Period. If Seller and the Principals shall disagree with the
calculation of Net Income by Headway for any Earnout Period, the
Principals and their accountants shall be entitled to meet with
Headway and its accountants for the purpose of resolving any such
disagreement.
Buyer and Headway agree not to take actions calculated
to minimize EBITA or to reduce Net Income for the purpose of
avoiding any Earnout obligations hereunder, or to reduce any
Earnout to which the Seller would otherwise be entitled to
hereunder. Buyer agrees to conduct itself in good faith and to
use commercially reasonable efforts to maximize EBITA and Net
Income during the Earnout Periods.
(d) Each Earnout shall be paid 90 days following the
close of the related Earnout Period (each, an "Earnout Payment
Date"). If any such day is not a business day, the Earnout
Payment Date shall be the next succeeding business day. If, as
of the close of business on the day prior to any Earnout Payment
Date, any account receivable included as income in the
calculation of Net Income has not been fully collected, the
uncollected amount of such account receivable shall be deducted
from Net Income and EBITA and the Earnout shall be reduced
accordingly. If such account receivable is thereafter collected
after the Earnout Payment Date, Buyer shall pay Seller the
amount by which such Earnout had been reduced in respect of such
account receivable, net of any direct collection costs and net of
an interest charge for any account receivable paid more than 90
days after the date of invoice (a "Restoration Amount"), with the
interest rate determined by reference to the interest rate then
in effect for Eurodollar Loans under the Credit Agreement (as
defined in Section 3.12); provided, that with respect to the
Earnout Payment Date for the third Earnout Period, Buyer shall be
obligated to pay Seller a Restoration Amount with respect to any
such account receivable only if such account receivable is
collected within 90 days of such third Earnout Payment Date.
(e) For the purposes of this Agreement, "payrolled"
personnel means (i) those employees of Headway, Buyer or Seller,
as the case may be, who are hired by Headway, Buyer or Seller on
behalf of a client and are considered as full-time "permanent"
employees of such client, but whose compensation is paid by
Headway, Buyer or Seller or (ii) those employees of Headway,
Buyer or Seller who are considered to be payrolled employees
under industry practice or understanding prevailing at the time.
(f) Headway guarantees to Seller and the Principals
the full and timely performance and payment of all of Buyer's
obligations under this Agreement.
1.4 Assumption of Liabilities. As additional
consideration for the purchase of the Acquired Assets, Buyer
shall assume and agree to pay, perform and discharge in full the
following debts, contracts, obligations and liabilities of Seller
(the "Assumed Liabilities"), and no others, as and when due, and
to indemnify and hold Seller and the Principals harmless
therefrom:
(a) all obligations and liabilities of Seller arising
on or after the Closing Date under its office lease for each of
the premises located at (i) 2987 West Commercial Boulevard, Ft.
Lauderdale, Florida, (ii) 3901 North Federal Highway, Boca Raton,
Florida and (iii) 14750 NW 77 Court, Suite 305, Miami Lakes,
Florida; and
(b) all obligations or liabilities arising on or after
the Closing Date under Seller's client agreements and
arrangements set forth in Schedule 1.1.B and Seller's equipment
leases and other agreements, contracts and instruments set forth
in Schedule 1.1.C, except for such obligations of Seller under
the Termination Agreement as shall be retained by Seller, as set
forth in Schedule 1.1.D.
1.5 Liabilities Not Assumed. Other than the
liabilities referred to in Section 1.4, Buyer shall not assume or
be deemed to have assumed any of the liabilities or obligations
of Seller of any kind (together, the "Unassumed Liabilities"),
including, without limitation:
(a) any liability claims with respect to the business
and affairs of Seller and the acts and omissions of its current
or former stockholders, officers, directors, employees and
agents, either before or after the Closing Date;
(b) any obligation or liability of Seller to any of
the Principals or any other current or former stockholder,
officer or director of Seller;
(c) any obligation or liability for federal, state,
local or foreign income or other taxes (including any related
penalties, fines and interest) of Seller, including, without
limitation, any and all taxes arising out of the transactions
contemplated hereby;
(d) any obligation or liability arising out of the
operation of Seller's business prior to the Closing Date,
including any rebates, discounts, offsets or concessions
attributable to amounts invoiced to Seller's clients prior to the
Closing Date, any obligations or liabilities of Seller, Kamler or
Luca Bencini-Tibo ("Bencini-Tibo") to Uniforce arising under the
Licensing Agreements or contemplated thereby, any obligations or
liabilities of Kamler arising under each of the Owner's Guaranty
and Assumption of Licensee's Obligations, dated November 27,
1989, October 24, 1991 and July 21, 1992, respectively
(collectively, the "Guaranty"), from Kamler and Janis Buongermino
("Buongermino") to Uniforce, or otherwise;
(e) any obligations or liabilities of SSI to
Buongermino arising under the Stock Redemption Agreement, dated
as of November 23, 1993 (the "Stock Redemption Agreement"), by
and between Buongermino and SSI;
(f) any obligations or liabilities of Seller or Kamler
to Buongermino;
(g) any obligations or liabilities of Seller arising
out of the Letter Agreement, dated September 24, 1996 (the "LRX
Agreement"), between Seller and LRX, Inc. ("LRX");
(h) any obligation or liability to Seller's or
Uniforce's temporary, payrolled, leased or full-time employees
who are providing services on behalf of Seller pursuant to the
Licensing Agreements for salary, wages, bonuses or other
compensation or benefits, including any with respect to
retirement plans, and accrued vacation, sick and holiday time and
pay incurred prior to the Closing Date, including, without
limitation, any liabilities of Seller contemplated by Section
10.2 but excluding any liabilities set forth in Schedule 1.7;
(i) any liabilities of Seller or Uniforce with respect
to any pension, retirement, savings, profit-sharing or other
benefit plans;
(j) any obligation or liability which is inconsistent
with any representation or warranty of Seller or the Principals;
(k) any liability arising out of, and any expenses
relating to, any claim, action, dispute or litigation involving
Seller, Kamler, Bencini-Tibo or Uniforce in connection with the
Licensing Agreements or the Termination Agreement;
(l) any liability of Seller or Uniforce for fines,
penalties, damages or other amounts payable to any government or
governmental agency or instrumentality; and
(m) any obligation or liability of Seller or the
Principals for any expenses incurred in preparing or negotiating
this Agreement or the Termination Agreement and consummating the
transactions contemplated hereunder or thereunder.
Seller, each Principal and Bencini-Tibo, jointly and severally,
agree to discharge and indemnify, defend and hold harmless Buyer
and Headway and their respective officers, directors, employees,
agents and stockholders from all Unassumed Liabilities, whether
or not now known, liquidated or contingent, including, without
limitation, any that might otherwise be deemed to have been
assumed by Buyer by virtue of its purchase of the Acquired Assets
or otherwise by operation of law.
1.6 Allocation of Purchase Price. Buyer and Seller
agree to report this transaction for United States federal income
tax purposes in accordance with a written allocation of Purchase
Price to be prepared, initialed and mutually agreed to by Buyer
and Seller at or before the Closing.
1.7 Closing Date Adjustments. On or before the
Closing, Buyer and Seller shall determine and agree on, as of the
Closing Date, (i) any amounts that Seller may have prepaid for
equipment or office leases included in the Acquired Assets in
respect of periods beginning on or after the Closing Date, (ii)
any amounts that Seller may have prepaid for sales, use or
similar taxes, license fees (exclusive of corporate franchise
fees), insurance, services or other expenses relating to the
Acquired Assets in respect of periods beginning on or after the
Closing Date, (iii) any security deposits on office leases or
equipment leases being transferred to Buyer hereunder and any
security deposits for utility services for premises covered by
such office leases, (iv) the amount of any accrued salaries,
bonuses, vacation, sick or holiday time or pay as of the Closing
Date with respect to temporary, payrolled, leased or full-time
employees of Seller retained by Buyer pursuant to Section 10.2,
as set forth in Schedule 1.7 and (v) any amounts of the type
described in clauses (i) and (ii) in respect of periods prior to
the Closing Date which are expected to be billed after the
Closing Date. All amounts relating to periods ending prior to
the Closing Date shall be for the account of Seller and all
amounts relating to periods beginning on or after the Closing
Date shall be for the account of Buyer. The respective amounts
shall be netted against each other at the Closing. If the result
is an amount owing to Seller, Buyer shall pay such amount to
Seller at the Closing. If the result is an amount owing to
Buyer, Seller shall pay such amount to Buyer at the Closing.
1.8 Collection of Accounts Receivable and Accrued
Payments.
(a) On or within 15 days after the Closing, Buyer and
Seller shall determine and agree on, as of the close of business
on the business day immediately preceding the Closing Date, the
amount of the Accruals. Promptly after the Closing, Buyer, in
coordination with Seller, shall render invoices to Seller's
clients for the Accruals. Buyer shall remit to Seller all
payments received by it on account of the Accruals and any
Receivables within 15 days after the end of each month in which
such payments are received. While Buyer shall use reasonable
efforts to collect the Accruals and any Receivables outstanding
on the Closing Date commensurate with the efforts it would use to
collect its own accounts receivable, Buyer shall not be required
to institute litigation or other collection proceedings in order
to do so and, in any event, Buyer shall have no liability to
Seller for any Accruals or Receivables that are not collected.
Seller shall have the right to institute collection proceedings
with respect to any Accruals or Receivables that are aged more
than 120 days after the date of the related invoice, but shall
notify Buyer of any such action not less than five business days
before it is instituted.
(b) Seller shall promptly pay to Buyer, if and when
received, any amounts which are received by it after the Closing
Date in respect of any of the Acquired Assets or with respect to
any accounts receivable generated by Buyer with respect to
periods on or after the Closing Date. Similarly, if Buyer
receives after the Closing any payments with respect to any
assets of Seller not included in the Acquired Assets other than
the Accruals and the Receivables (which shall be governed by
Section 1.8(a)), Buyer shall promptly pay such amounts to Seller.
Any amounts received pursuant to this Section 1.8(b) shall be
applied to the receivables specifically identified by the client.
If no such identification is provided, Buyer or Seller, as the
case may be, shall inquire of client for written identification
and apply the amount received accordingly.
1.9 Restrictions on Transfer of Shares.
(a) Seller understands that Headway has no obligation
to register the Shares under the Securities Act of 1933, as
amended (the "Act"), and, accordingly, the Shares shall be
subject to restrictions under the Act, the rules and regulations
promulgated thereunder and applicable state securities laws. At
the Closing, Headway shall deliver to Seller one or more
certificates in proper form in the name of Seller evidencing the
Shares being issued on such date. Each certificate shall bear an
appropriate legend as to the lack of registration of the Shares
and the resulting restrictions on transfer.
(b) No Shares shall be transferable except in
compliance with the provisions of this Section 1.9(b). Seller
agrees that, prior to any proposed transfer of any Shares, it
shall give Headway notice of its intention to effect such
transfer. Such notice shall describe briefly the manner and
circumstances of the proposed transfer in sufficient detail, and
shall include such information as is reasonably necessary to
enable counsel for Headway to render the opinion contemplated by
this Section 1.9(b). If, in the opinion of such counsel, the
proposed transfer of such Shares may be effected without
registration or qualification thereof under the Act or applicable
state securities laws, Headway, as promptly as is practicable,
shall notify Seller of such opinion, whereupon Seller shall be
entitled to transfer such Shares in accordance with the terms of
its notice. Unless, in the opinion of such counsel, subsequent
disposition of such Shares by the transferee may require such
registration or qualification, Headway shall promptly on such
transfer deliver certificates for such Shares not bearing the
restrictive legend contemplated above. If, in the opinion of
such counsel, subsequent disposition by the transferee of such
Shares may require such registration or qualification, Seller
shall not transfer such Shares unless and until its transferee
confirms to Headway in writing its agreement to be bound by the
provisions of this Section 1.9. If, in the opinion of Headway's
counsel, the proposed transfer may not be effected without
registration or qualification thereof, Seller shall not transfer
the same until such registration or qualification is effected.
1.10 Nonassignable Contracts. Nothing in this
Agreement shall be construed as an attempt to assign any contract
which is by law nonassignable without the consent of any other
party thereto unless and until such consent is given.
Closing. The consummation of the purchase and
sale of the Acquired Assets (the "Closing") shall take place at
10:00 a.m. on June 22, 1998, at the offices of Christy & Viener,
620 Fifth Avenue, New York, New York 10020, or at such other
time, date and place as the parties may agree (the "Closing
Date"), but no later than June 24, 1998.
Conditions to the Obligations of Buyer. The
obligations of Buyer under Section 1 are subject to the
satisfaction, on or before the Closing Date, of the following
conditions:
3.1 Due Performance. Seller and the Principals shall
have in all material respects fully performed and complied with
all agreements and conditions required under this Agreement to be
performed or complied with by it or them on or prior to the
Closing Date.
3.2 Accuracy of Representations and Warranties. All
representations and warranties of Seller and the Principals set
forth in Section 6 of this Agreement shall be true and correct in
all material respects on and as of the Closing Date as if made on
and as of such date.
3.3 Certificate. Buyer shall have received a
certificate from each of Seller and the Principals to the effect
set forth in Sections 3.1 and 3.2.
3.4 Termination Agreement. On or before the Closing
Date, the Licensing Agreements shall have been terminated
pursuant to an agreement (the "Termination Agreement") between
Seller and Uniforce in form and substance satisfactory to
Headway. At a minimum, the Termination Agreement shall contain
(a) the waiver by Uniforce of all non-competition provisions
under the Licensing Agreements, (b) the agreement of Uniforce
that it will permit and not interfere with the employment by
Buyer of all of the "employees assigned by Seller" and the
transfer of the "Client Agreements" (as defined in Section
6.10(a)) to Buyer and (c) mutual general releases of Uniforce and
Seller.
3.5 Bencini Employment Agreement. Buyer, Headway and
Bencini shall have entered into an Employment Agreement in a form
satisfactory to all such parties (the "Bencini Employment
Agreement").
3.6 Kamler Employment Agreement. Buyer, Headway and
Kamler shall have entered into an Employment Agreement in a form
satisfactory to all such parties (the "Kamler Employment
Agreement").
3.7 Lease Assignments. On the Closing Date, Buyer and
Seller shall have entered into lease assignment agreements with
the landlords of each of the Ft. Lauderdale, Miami Lakes and Boca
Raton offices in form and substance satisfactory to Buyer and
Headway.
3.8 Related Instruments. Seller shall have executed
and delivered to Buyer a General Bill of Sale in customary form
with respect to the Acquired Assets, as well as such other
instruments of assignment with respect to specific Acquired
Assets as Buyer shall reasonably request.
3.9 Financial Statements. On or before January 24,
1998, Seller and the Principals shall have prepared and delivered
to Buyer and Headway unaudited financial statements for the
fiscals years ended December 31, 1995 and December 31, 1996
(collectively, the "Unaudited Annual Statements"), on or before
the Closing Date, Seller and the Principals shall have prepared
and delivered to Buyer and Headway unaudited financial statements
as of and for the three-month periods ended March 31, 1997, June
30, 1997, September 30, 1997 and March 31, 1998 (the "Unaudited
Quarterly Statements"; the Unaudited Annual Statements and the
Unaudited Quarterly Statements being collectively referred to as
the "Unaudited Financial Statements") and, on or before February
15, 1998, Seller and the Principals shall have prepared and
delivered to Buyer and Headway audited financial statements for
the fiscal year ended December 31, 1997 (the "Audited Financial
Statements"; the Unaudited Financial Statements and the Audited
Financial Statements being collectively referred to as the
"Financial Statements"). The Financial Statements shall be
prepared at the expense of Seller and the Principals in
accordance with generally accepted accounting principles applied
on a basis consistent throughout all periods presented and on an
accrual basis.
3.10 Legal Opinion. Buyer shall have received an
opinion of Allan Richard Henis, Esq., counsel for Seller and the
Principals, dated the Closing Date, reasonably satisfactory in
form and substance to counsel for Buyer and covering the matters
set forth in Sections 6.1 (exclusive of the last sentence
thereof), 6.2, 6.3, 6.4(a) and 6.8.
3.11 Corporate Action. Buyer shall have received
copies, certified, by the Secretaries of each of Seller, of
resolutions of their respective Boards of Directors and
stockholders approving the execution of this Agreement and the
Termination Agreement and the consummation of the transactions
contemplated hereby and thereby.
3.12 No Adverse Change. There shall have been no
material adverse change in the business, results of operations or
financial condition of Seller since December 31, 1996.
3.13 Consents and Governmental Approvals. Headway and
Buyer shall have received any material consents of third parties,
and any authorizations, orders, grants, consents, permits and
approvals of all relevant governmental authorities, required in
connection with the consummation of the transactions contemplated
under this Agreement, without the imposition of any materially
burdensome conditions or restrictions, which shall continue to be
in full force and effect on the Closing Date, including the
consent or waiver of NationsBank, National Association
("NationsBank"), under the Credit Agreement, dated as of March
19, 1998 (the "Credit Agreement"), by and among Headway, as
Borrower, NationsBank, as Agent and the Issuing Bank, and the
various lenders, including NationsBank, parties thereto.
3.14 No Claims. No claim, action, suit, investigation
or proceeding shall be pending or threatened against any of the
parties which, if adversely determined, might (i) prevent or
hinder consummation of the transactions contemplated by this
Agreement, (ii) result in the payment of substantial damages by
Buyer or Headway as a result of the transactions contemplated
hereby or (iii) materially and adversely affect the business or
assets of Seller, Buyer or Headway.
3.15 Due Diligence. Buyer shall have completed to its
reasonable satisfaction a diligence review of Seller's business.
Conditions to the Obligations of Seller and the
Principals. The obligations of Seller and the Principals under
Section 1 are subject to the satisfaction, on or before the
Closing Date, of the following conditions:
4.1 Due Performance. Headway and Buyer shall have in
all material respects fully performed and complied with all
agreements and conditions required under this Agreement to be
performed or complied with by them on or prior to the Closing
Date.
4.2 Accuracy of Representations and Warranties. All
representations and warranties of Headway and Buyer set forth in
Section 7 of this Agreement shall be true and correct in all
material respects on and as of the Closing Date as if made on and
as of such date.
4.3 Certificate. Seller and the Principals shall have
received a certificate from each of Buyer and Headway to the
effect set forth in Sections 4.1 and 4.2.
4.4 Related Instruments. Buyer shall have executed
and delivered to Seller a General Instrument of Assumption in
customary form with respect to the Assumed Liabilities, as well
as such other instruments of assumption with respect to specific
Assumed Liabilities as Seller shall reasonably request.
4.5 Bencini Employment Agreement. Buyer, Headway and
Bencini shall have entered into the Bencini Employment Agreement.
4.6 Kamler Employment Agreement. Buyer, Headway and
Kamler shall have entered into the Kamler Employment Agreement.
4.7 Legal Opinion. Seller and the Principals shall
have received an opinion of Messrs. Christy & Viener, counsel for
Buyer and Headway, dated the Closing Date, reasonably
satisfactory in form and substance to counsel for Seller and the
Principals and covering the matters set forth in Sections 7.1
(exclusive of the last sentence thereof), 7.2, 7.3, 7.4 (a) and
7.6.
4.8 Corporate and Member Action. Seller and the
Principals shall have received copies, in the case of Headway, of
resolutions of its Board of Directors certified by the Secretary
of Headway, and in the case of Buyer, of resolutions of its sole
member certified by the Secretary of Buyer, in each instance
approving the execution of this Agreement, the Bencini Employment
Agreement and the Kamler Employment Agreement and the
consummation of the transactions contemplated hereby and thereby.
4.9 Consents and Governmental Approvals. Seller and
the Principals shall have received any material consents of third
parties, and any authorizations, orders, grants, consents,
permits and approvals of all relevant governmental authorities,
required in connection with the consummation of the transactions
contemplated under this Agreement, without the imposition of any
materially burdensome conditions or restrictions, which shall
continue to be in full force and effect on the Closing Date.
4.10 No Claims. No claim, action, suit, investigation
or proceeding shall be pending or threatened against any of the
parties which, if adversely determined, might (i) prevent or
hinder consummation of the transactions contemplated by this
Agreement, (ii) result in the payment of substantial damages by
Seller or the Principals as a result of the transactions
contemplated hereby or (iii) materially and adversely affect the
business or assets of Seller, Buyer or Headway.
Waiver of Conditions. Each of the parties shall
have the right to waive, in whole or in part, any of the
conditions to its performance set forth in this Agreement and, on
such waiver, the waiving party may proceed with the consummation
of the transactions contemplated herein, it being understood
that such waiver shall not constitute a waiver of any right which
such party may have by reason of the breach by the other party of
any representation, warranty or agreement contained herein, or by
reason of any misrepresentation made by such other party herein.
Representations and Warranties of Seller and the
Principals. Each of Seller and the Principals, jointly and
severally, represents and warrants to Buyer and Headway as
follows:
6.1 Due Organization and Qualification. Each of Seller
is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Florida, with full
corporate power and authority to own, lease and operate its
properties and to carry on its business in the places and in the
manner currently conducted or proposed to be conducted. Each of
Seller is qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which the nature of
the activities conducted by it or the character of the properties
owned or leased by it makes such qualification necessary and the
failure to so qualify would have a material adverse effect on its
business or the Acquired Assets.
6.2 Authority; Due Authorization. Each of Seller has
all requisite corporate power and authority to execute and
deliver this Agreement and the Termination Agreement and to
consummate the transactions contemplated hereby and thereby.
Each of Seller has taken all corporate action necessary for the
execution and delivery by it of this Agreement and the
Termination Agreement and for the consummation of the
transactions contemplated hereby and thereby. Each of the
Principals and Bencini-Tibo has the requisite power and authority
to execute and deliver, and has taken all action necessary for
the execution and delivery of, this Agreement and the Bencini
Employment Agreement or the Kamler Employment Agreement, as the
case may be, and for the consummation of the transactions
contemplated hereby and thereby.
6.3 Valid Obligation. This Agreement, when executed
and delivered by each of Seller, the Principals and Bencini-Tibo,
shall constitute the valid and binding obligation of each of
Seller, the Principals and Bencini-Tibo, the Termination
Agreement, when executed and delivered by Seller, Kamler and
Bencini-Tibo, shall constitute the valid and binding obligation
of each of Seller, Kamler and Bencini-Tibo, the Bencini
Employment Agreement, when executed and delivered by Bencini,
shall constitute her valid and binding obligation, and the Kamler
Employment Agreement, when executed and delivered by Kamler,
shall constitute his valid and binding obligation, in each case
enforceable in accordance with its terms, except as may be
limited by principles of equity or by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally.
6.4 No Conflicts or Defaults. The execution and
delivery of this Agreement by each of Seller, the Principals and
Bencini-Tibo, the Termination Agreement by Seller, Kamler and
Bencini-Tibo, and the Bencini Employment Agreement by Bencini,
and the Kamler Employment Agreement by Kamler, and the
consummation of the transactions contemplated hereby and thereby,
do not and shall not (a) contravene the Articles of Incorporation
or By-Laws of each of Seller or (b) with or without the giving of
notice or the passage of time, (i) materially violate or conflict
with, or result in a material breach of, or a material default or
loss of rights under, any agreement, lease, mortgage, instrument,
permit or license to which Seller is a party and which is
included in the Acquired Assets, or to which any of the Acquired
Assets are subject, or any judgment, order, decree, law, rule or
regulation to which any of the Acquired Assets are subject, (ii)
result in the creation of, or give any party the right to create,
any lien, charge, encumbrance or any other right or adverse
interest on or with respect to any of the Acquired Assets or
(iii) terminate or give any party the right to terminate, abandon
or refuse to perform any material agreement, arrangement or
commitment to which Seller is a party and which is included in
the Acquired Assets or to which any of the Acquired Assets are
subject.
6.5 Copies of Charter Documents. Copies of the
Articles of Incorporation and By-Laws of each of Seller, in each
case as amended to the date hereof, have been delivered to Buyer
or its representatives and are true and complete copies of such
documents as in effect on the date of this Agreement.
6.6 Capitalization of Seller Kamler holds all of the
issued and outstanding capital stock of SSI and Kamler and
Bencini-Tibo hold all of the issued and outstanding capital stock
of ISI. There are no outstanding options, warrants, rights,
conversion rights, preemptive rights, calls, commitments or
demands of any character obligating Seller, Kamler or Bencini-
Tibo to issue, sell, redeem or repurchase any capital stock or
any other security giving a right to shares of its or his capital
stock, or obligating any of Kamler or Bencini-Tibo to sell or
otherwise dispose of any of his shares of capital stock of
Seller.
6.7 Subsidiaries and Related Parties. Except for
Seller's relationship with Uniforce pursuant to the Licensing
Agreements, Seller's business is conducted entirely by and
through Seller. Seller has no direct or indirect subsidiaries,
nor are there any other entities that Seller otherwise directly
or indirectly controls or in which it has any ownership or other
interest. Except as set forth in Schedule 6.7, none of the
Principals, Bencini-Tibo or any director, member, officer or key
employee of Seller or any of their respective affiliates or
relatives has any direct or indirect interest (other than an
ownership interest of up to 5% of the voting securities of any
corporation, the securities of which are publicly-traded) in any
assets used in Seller's business or in any corporation,
partnership or other entity that (a) competes with Seller, (b)
sells or purchases products or services to or from Seller, (c)
leases real or personal property to or from Seller or (d)
otherwise does business with Seller.
6.8 Authorizations. Except as set forth in Schedule
6.8, no authorization, approval, order, license, permit or
consent of, or filing or registration with, any court or
governmental authority, regulatory entity or official body, and
no consent of any other party, is required in connection with the
execution, delivery and performance of this Agreement by each of
Seller, the Principals and Bencini-Tibo, the Termination
Agreement by Seller, Kamler and Bencini-Tibo, the Bencini
Employment Agreement by Bencini or the Kamler Employment
Agreement by Kamler.
6.9 The Acquired Assets.
(a) Seller has, and on the Closing Date shall have and
shall transfer to Buyer, good and marketable title to all of the
Acquired Assets, free and clear of all claims, liens, security
interests, charges, restrictions and other encumbrances except:
(i) any created pursuant to this Agreement; (ii) any arising
under leases of real or personal property to which Seller is a
party and which have been specifically disclosed to Buyer; or
(iii) mechanics' or other liens arising or incurred in the
ordinary course of business and which do not interfere materially
with the possession, ownership or use of any real or personal
property used by Seller.
(b) Set forth in Schedule 6.9 is a list of all real
property leased by Seller, with a brief description of the
premises. Seller owns no real property.
(c) The office equipment, furniture, computers,
computer software, office supplies and leasehold improvements
included in the Acquired Assets are, in all material respects, in
good operating condition and repair, reasonable wear and tear
excepted, and are satisfactory for the requirements of Seller's
business.
6.10 Client Agreements.
(a) Schedule 1.1.B sets forth a true and complete list
of all written and oral client agreements and arrangements to
which Seller or Uniforce (pursuant to the Licensing Agreements)
is party (the "Client Agreements"). Seller has furnished Buyer
with a true copy of each Client Agreement or a written
description of any Client Agreement that has not been reduced to
writing. The Client Agreements constitute all of the contracts,
agreements, understandings and arrangements pursuant to which
Seller or Uniforce (pursuant to the Licensing Agreements)
provides any temporary, permanent, leased or payrolled employee
services for or with respect to the clients who are parties to
such agreements. Except as set forth in Schedule 6.10, (i) each
Client Agreement was entered into in the ordinary course of
Seller's business, (ii) is in full force and effect on the date
of this Agreement and is valid, binding and enforceable in
accordance with its terms, (iii) neither Seller nor Uniforce is
in material breach or default under any of the Client Agreements
and has not received any notice or claim of any such breach or
default from any party, (iv) the relationship of Seller with the
clients that are parties to the Client Agreements is good and
there has been no expression of any intention to terminate or
materially modify any of such relationships, (v) neither Seller
nor any of the Principals has any knowledge of any material
breach or default under any of the Client Agreements by any
other party thereto other than Seller or Uniforce, (vi) no event
or action has occurred, is pending or, to Seller's best
knowledge, is threatened, which, after the giving of notice,
passage of time or otherwise, could constitute or result in any
such material breach or default by Seller, Uniforce or any other
party under any of the Client Agreements and (vii) no material
amount claimed to be payable to Seller or Uniforce under any of
the Client Agreements is being disputed by any client.
(b) Except as set forth in Schedule 6.10.A, (i) for
its services under each Client Agreement, Seller or Uniforce
(pursuant to the Licensing Agreements) receives the compensation
provided under such Client Agreement, without discount, offset or
concessions of any kind, and neither Seller nor Uniforce has
proposed or agreed to offer or accept any discount, offset or
concession and (ii) the payment history of the clients under the
Client Agreements is good as judged by industry standards. Set
forth in Schedule 6.10.B is an aging schedule for all of Seller's
accounts receivable (including accounts receivable billed by
Uniforce for services performed by Seller pursuant to the
Licensing Agreements) and accounts payable as of the Closing
Date, which list is accurate in all material respects.
(c) All of the accounts receivable reflected on the
books and records of Seller and Uniforce on Schedule 6.10.B are
the result of bona fide transactions in the ordinary course of
business of Seller and are fully collectible by Seller, subject
to no defenses, counterclaims, set-offs or recoupments, except to
the extent appropriately reserved for on the books and records of
Seller or Uniforce and except as disclosed in Schedule 6.10.A.
6.11 Financial Statements.
(a) The Financial Statements have been and will be
prepared in accordance with generally accepted accounting
principles applied on a basis consistent throughout all periods
presented. Such statements are and will be correct and complete
in all material respects, are reconcilable to the books and
records of Seller, and present fairly the financial position of
Seller as of the dates, and the results of operations, cash flows
and changes in financial position of Seller for the periods,
indicated, except in the case of interim or unaudited financial
statements, for the omission of footnotes and for year-end review
adjustments which are not expected to be material.
(b) Except as set forth in Schedule 6.11, Seller had
no material liabilities or obligations, whether secured or
unsecured, accrued, determined, absolute or contingent, asserted
or unasserted or otherwise, which are required to be reflected or
reserved in a balance sheet or the notes thereto under generally
accepted accounting principles, but which are not reflected in
the Financial Statements.
6.12 Other Agreements.
(a) Schedule 1.1.C sets forth a true and complete list
of the office leases, equipment leases and other agreements,
contracts and instruments included in the Acquired Assets other
than the Client Agreements (the "Other Agreements"). Together
with the Client Agreements, the Other Agreements constitute all
of the material contracts, agreements, understandings and
arrangements required for the operation of Seller's business, as
currently conducted by Seller, or which have a material effect
thereon.
(b) Except as set forth in Schedule 6.12, (i) each
Other Agreement was entered into in the ordinary course of
Seller's business, is in full force and effect on the date of
this Agreement and is valid, binding and enforceable in
accordance with its terms, (ii) Seller is not in material breach
or default under any of the Other Agreements and has not received
any written notice or claim of any such breach or default from
any party, (iii) Seller and each of the Principals have no
knowledge of any material breach or default under any of the
Other Agreements by any party thereto and (iv) no event or action
has occurred, is pending or, to Seller's best knowledge, is
threatened, which, after the giving of notice, passage of time or
otherwise, could constitute or result in any such material breach
or default by Seller or any other party under any of the Other
Agreements.
6.13 Intellectual Property. Schedule 1.1.E sets forth
a true and complete list of all trademarks, service marks, domain
name, trade names and copyrights, and United States or foreign
registrations and applications for registration of any of them,
and any other intellectual property rights, used by Seller in its
business, all of which intellectual property is included in the
Acquired Assets, other than such intellectual property identified
in Schedule 1.1.E as belonging to Uniforce and any intellectual
property related to the names "Staffing Solution Inc." and
"Intelligent Staffing, Inc." Seller owns or has legal right to
use, pursuant to one or more of the Other Agreements, all such
intellectual property without infringing on the rights or
intellectual property of any third party. No royalties or fees
are payable by Seller to any party by reason of the use by Seller
of any of such intellectual property. To Seller's best
knowledge, Seller has not received any claims that it or its
products or services have infringed the rights of others, and
Seller and the Principals are not aware of any infringement by
others of Seller's intellectual property.
6.14 Taxes. Except as set forth in Schedule 6.14,
Seller has filed all federal, state, local and foreign returns
and reports which were required to be filed prior to the date
hereof in respect of all income, withholding, franchise, payroll,
excise, property, value-added, sales, use or other taxes,
imposts, duties or assessments (together with any related
penalties, fines or interest, "Taxes"). Each such return and
report is complete and accurate in all material respects, and
Seller has paid, or established adequate reserves for payment of,
all Taxes (and any related penalties, fines and interest) shown
to be due on such returns or reports and any assessments received
with respect thereto. Except as set forth in Schedule 6.14,
Seller has received no notice of any claims pending or threatened
for taxes against it for periods prior to the date hereof, in
excess of such reserves.
6.15 Permits; Compliance with Law. Seller and, to
Seller's and the Principals' best knowledge, Uniforce, holds all
permits, certificates, licenses, approvals and other
authorizations of governmental authorities as are materially
necessary to the conduct of their respective businesses. Seller
and, to the best knowledge of Seller and each of the Principals,
Uniforce, are in material compliance with the terms of each
thereof and have not received any notice or claim pertaining to
the failure to obtain, or the breach or violation of the terms
of, any such authorization. Neither Seller nor any of the
Principals has received any notice of any proceeding or
investigation likely to result in the suspension or revocation of
any such authorization. Seller and, to the best knowledge of
Seller and each of the Principals, Uniforce, are conducting their
respective business and affairs in material compliance with all
applicable federal, state and local laws, ordinances, rules,
regulations and court or administrative orders and decrees,
including, without limitation, any respecting wage and hour,
withholding and unemployment compensation requirements.
6.16 Litigation. Except as set forth in Schedule 6.16,
there are no claims, actions, suits, proceedings, investigations
or criminal proceedings, at law or in equity, before any court,
tribunal, governmental authority or other forum (collectively,
"Proceedings") pending or, to Seller's best knowledge,
threatened, against Seller or, to the best knowledge of Seller
and each of the Principals, Uniforce, which, if adversely
determined, would, singly or in the aggregate, have a material
adverse effect on Seller's Business or the Acquired Assets or the
ability of (i) Seller to perform its obligations under this
Agreement or the Termination Agreement or which would challenge
the validity or propriety of the transactions contemplated in
this Agreement or the Termination Agreement, (ii) any of the
Principals to perform their obligations under this Agreement or
which would challenge the validity or propriety of the
transactions contemplated in this Agreement or (iii) Kamler or
Bencini-Tibo to perform their obligations under the Termination
Agreement or which would challenge the validity, propriety of the
transactions contemplated under the Termination Agreement.
Schedule 6.16 contains a list of all Proceedings to which Seller
is a party or to which it or any of the Acquired Assets are
subject. There is no material outstanding and unsatisfied
judgment, order, writ, ruling, injunction, stipulation or decree
of any court, arbitrator or governmental authority against or
materially affecting Seller, Seller's business or any material
portion of the Acquired Assets.
6.17 Ordinary Course; No Material Adverse Effect.
Except as set forth in Schedule 6.17 and for the transactions
contemplated in this Agreement, since December 31, 1996, Seller
has conducted its business and maintained its assets
substantially in the same manner as previously conducted or
maintained and solely in the ordinary course and, since such
date, there has not been any event that has or would, with or
without the giving of notice or the passage of time, result in a
material adverse effect on Seller or its business.
6.18 Employee Benefits and Relations.
(a) Except as set forth in Schedule 6.18, neither
Seller nor Uniforce maintains or sponsors, or contributes or has
any obligation or liability to, any "employee pension benefit
plan", "employee welfare benefit plan" or "multi-employer plan"
(as such terms are defined in Sections 3(2), 3(1) and 4001(a)(3)
of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")). Set forth in Schedule 6.18 is a list of all
bonus, pension, profit-sharing, deferred compensation, stock
ownership, stock bonus, stock option, phantom stock, retirement,
vacation, disability, death benefit, unemployment,
hospitalization, medical, dental, severance, or other plan,
agreement, arrangement or understanding providing benefits to any
current or former employee, officer, member or director of Seller
or Uniforce (pursuant to the Licensing Agreements) or to which
Seller or Uniforce (pursuant to the Licensing Agreements) has any
liability or obligation (all such plans, agreements, arrangements
and understandings are referred to as "Benefit Plans"). Seller
and the Principals have delivered to Buyer and Headway true,
complete and correct copies of (i) each Benefit Plan and all
amendments thereto (or, in the case of any unwritten Benefit
Plans, descriptions thereof), (ii) annual reports on Form 5500
for the past three years (together with accompanying financial
statements) filed with the Internal Revenue Service or Department
of Labor, as applicable, with respect to each Benefit Plan (if
any such report was required), (iii) all summary plan
descriptions for each Benefit Plan for which such summary plan
description is required or otherwise available and (iv) each
trust agreement and group annuity contract relating to any
Benefit Plan. No Benefit Plan provides for post-retirement
medical or life insurance benefits unless the event giving rise
to the benefit entitlement occurs prior to the employee's
retirement (except as required by Title I, Part 6 of ERISA).
(b) Any accrued obligations of Seller or Uniforce
under all Benefit Plans that are required to be reflected on the
balance sheet of Seller or Uniforce in accordance with generally
accepted accounting principles are reflected thereon as of the
dates indicated thereon and on the books and records of Seller or
Uniforce for all periods thereafter. Seller and the Principals
have provided Buyer with copies of all such balance sheets, books
and records.
(c) Except as set forth in Schedule 6.18, each Benefit
Plan and any related trust complies currently, and has complied
at all times in the past, both as to form and operation, in all
material respects with the terms of such Benefit Plan and with
the applicable provisions of ERISA, the Code and other applicable
laws. All necessary government approvals for each Benefit Plan
have been obtained on a timely basis.
(d) Except as set forth in Schedule 6.18, neither
Seller nor Uniforce has any liability (contingent or otherwise)
with respect to any terminated Benefit Plan. Neither Seller nor
Uniforce is a member of, and has no liability with respect to, a
controlled group of corporations or a trade or business (whether
or not incorporated) under common control which, together with
Seller or Uniforce, is or was at any time treated as a single
employer under Section 414(b), (c), (m) or (o) of the Code or
Section 4001(b)(1) of ERISA.
(e) Neither Seller nor Uniforce is a party to any
union or collective bargaining contract with respect to any of
its employees and there has not been, nor has Seller, Uniforce or
any Principal received written notice threatening, any
representational or organizational activity, strike, slowdown,
picketing or work stoppage by any union or other group of
employees against Seller.
(f) Schedule 6.18 sets forth (i) the name of each
director, officer, employee and sales representative of Seller
(other than temporary or payrolled personnel), together with the
annual compensation rate for each such person and (ii) each oral
or written contract, commitment or understanding between Seller
and any current or former director, officer, sales person,
employee, agent or stockholder of Seller or any associate or
relative of such persons (other than temporary or payrolled
personnel).
(g) Seller does not provide services through or
receive services from independent contractors.
6.19 Insurance. All of the insurable Acquired Assets
are, in the judgment of Seller, adequately insured for the
benefit of Seller against loss or damage by theft, fire and all
other hazards and risks of a character usually insured against by
persons operating similar properties in the localities where such
properties are located, under valid and enforceable policies
issued by insurance carriers of substantial assets. A list of
all of insurance policies of Seller, indicating carriers,
coverage and applicable limits of liability, is set forth in
Schedule 6.19. All such policies of insurance are in full force
and effect on the date hereof, and shall remain in full force and
effect through the Closing Date in accordance with their terms.
Neither Seller nor any of Principals has received notice of
termination of any such policies.
6.20 Miscellaneous. All representations and warranties
of Seller and each of the Principals set forth in this Agreement
and all information set forth in the Schedules are true and
complete in all material respects and no such representation,
warranty or information contains any untrue statement of a
material fact or, to the knowledge of Seller and each of the
Principals, omits to state any material fact necessary in order
to make such representation, warranty or information, in light of
the circumstances under which it is made, not false or
misleading. Any disclosure made pursuant to any of the
representations and warranties in this Section 6 shall be deemed
to have been made for purposes of any other such representations
and warranties.
Representations and Warranties of Buyer and
Headway. Buyer and Headway, jointly and severally, represent
and warrant to Seller and each of the Principals as follows:
7.1 Due Organization and Qualification. Buyer is a
limited liability company duly organized, validly existing and in
good standing under the laws of the State of Delaware, with full
power and authority to own, lease and operate its properties and
to carry on its business in the places and in the manner
currently conducted or proposed to be conducted. Headway is a
corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its
properties and to carry on its business in the places and in the
manner currently conducted or proposed to be conducted. Each of
Buyer and Headway is qualified to do business and is in good
standing as a foreign limited liability company or foreign
corporation in which the nature of the activities conducted by it
or the character of the properties owned or leased by it makes
such qualification necessary and the failure to so qualify would
have a material adverse effect on its business.
7.2 Authority; Due Authorization. Buyer has all
requisite power and authority to execute and deliver this
Agreement, the Bencini Employment Agreement and the Kamler
Employment Agreement and to consummate the transactions
contemplated hereby and thereby. Buyer has taken all member
action necessary for the execution and delivery by it of this
Agreement, the Bencini Employment Agreement and the Kamler
Employment Agreement and for the consummation of the transactions
contemplated hereby and thereby. Headway has all requisite
corporate power and authority to execute and deliver this
Agreement, the Bencini Employment Agreement and the Kamler
Employment Agreement and to consummate the transactions
contemplated hereby and thereby, including, without limitation,
the guarantee of Headway set forth in Section 1.3(f). Headway
has taken all corporate action necessary for the execution and
delivery by it of this Agreement, the Bencini Employment
Agreement and the Kamler Employment Agreement and for the
consummation of the transactions contemplated hereby and thereby.
7.3 Valid Obligation. This Agreement, the Bencini
Employment Agreement and the Kamler Employment Agreement, when
executed and delivered by each of Buyer and Headway, shall
constitute its valid and binding obligations, in each case
enforceable in accordance with its terms, except as may be
limited by principles of equity or by bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally.
7.4 No Conflicts or Defaults. The execution and
delivery of this Agreement, the Bencini Employment Agreement
and the Kamler Employment Agreement by each of Buyer and Headway,
and the consummation of the transactions contemplated hereby and
thereby, do not and shall not (a) contravene the Certificate of
Formation of Buyer or the Certificate of Incorporation or the By-
Laws of Headway or (b) with or without the giving of notice or
the passage of time, materially violate or conflict with, or
result in a material breach of, or a material default or loss of
rights under, any agreement, lease, mortgage, instrument, permit
or license to which Buyer or Headway is a party or by which Buyer
or Headway are bound, other than the Credit Agreement, or any
judgment, order, decree, law, rule or regulation to which Buyer
or Headway are subject.
7.5 Copies of Charter Documents. Copies of the
Certificate of Incorporation and By-Laws of Headway and the
Certificate of Formation of Buyer, in each case as amended to the
date hereof, have been delivered to Seller and the Principals and
are true and complete copies of such documents as in effect on
the date of this Agreement.
7.6 Authorizations. No authorization, approval,
order, license, permit or consent of, or filing or registration
with, any court or governmental authority, regulatory entity or
official body, and no consent of any other party, is required in
connection with the execution, delivery and performance of this
Agreement, the Bencini Employment Agreement or the Kamler
Employment Agreement by Buyer and Headway, except for the consent
or waiver of NationsBank under the Credit Agreement.
7.7 Litigation. There are no Proceedings, pending or
threatened, against Buyer or Headway which, if adversely
determined, would, singly or in the aggregate, have a material
adverse effect on the ability of Buyer or Headway to perform
their respective obligations under this Agreement or which would
challenge the validity or propriety of the transactions
contemplated in this Agreement. There is no material outstanding
and unsatisfied judgment, order, writ, ruling, injunction,
stipulation or decree of any court, arbitrator or governmental
authority against or materially affecting Buyer or Headway or any
material portion of their respective assets.
7.8 Miscellaneous. All representations and warranties
of Buyer and Headway set forth in this Agreement were, as of the
date on which they were made or given, true and complete in all
material respects and no such representation, warranty or
information contains or contained any untrue statement of a
material fact or, to the knowledge of Buyer and Headway, omits or
omitted to state any material fact necessary in order to make
such representation or warranty, in light of the circumstances
under which it is or was made, not false or misleading. Any
disclosure made pursuant to any of the representations in this
Section 7 shall be deemed to have been made for purposes of any
other such representations.
Survival of Representations and Warranties. All
representations and warranties made by any party in this
Agreement or in any document or certificate delivered pursuant to
this Agreement shall survive the Closing for a period of three
years (except that the representations and warranties set forth
in Sections 6.14 and 6.18 relating to Taxes and Benefit Plans
shall survive for a period equal to the statute of limitations
applicable to any claims and liabilities which may result from a
breach thereof) and shall be unaffected by any investigation made
by or on behalf of any party or by any notice of breach of, or
failure to perform under, this Agreement which is not effectively
waived pursuant to Section 5, subject, however, to the
limitations on indemnification set forth in Section 13.5.
Conduct of Seller's Business Prior to Closing
Date.
9.1 Preservation of Representations and Warranties.
Between the date of this Agreement and the Closing Date, Seller
and each of the Principals shall refrain from taking, without the
prior written consent of Buyer or Headway, any action which would
render any of the representations or warranties set forth in
Section 6 materially inaccurate as of the Closing Date. Seller
shall notify Buyer and Headway promptly of the occurrence of any
matter, event or change in circumstances after the date hereof
that would render any of such representations and warranties
inaccurate or which would have been required to be disclosed
hereunder if it had occurred on or prior to the date hereof.
9.2 Preserve Business. Between the date of this
Agreement and the Closing Date, Seller shall preserve
substantially intact its business organization, keep available
the services of its present officers and key employees and
preserve its present relationships with persons having
significant business relations with Seller and conduct its
business solely in the ordinary course. In this regard and
without limitation of the foregoing, Seller shall not (A) make
or grant any wage or salary increases or bonuses other than
pursuant to pre-existing commitments, (B) terminate, amend or
waive any substantial rights under any Client Agreement or Other
Agreement, (C) sell, encumber or otherwise dispose of any of the
Acquired Assets or (D) enter into any material agreement,
commitment or understanding other than in the ordinary course of
business.
9.3 Further Investigation. Between the date of this
Agreement and the Closing Date, Seller shall provide Buyer,
Headway and their respective representatives with full access
during normal business hours, on reasonable prior notice, to
Seller's premises, personnel and files, books and records
concerning Seller's business and the Acquired Assets, and Seller
shall cause its officers, employees and representatives to
furnish such financial and operating data and other information
with respect to Seller's business and the Acquired Assets as
Buyer or Headway shall reasonably request; provided, however,
that any such investigation shall be conducted in such manner as
not to interfere unreasonably with the operation of Seller's
business. During such investigation, Buyer, Headway and their
respective representatives shall have the right to make copies
of, or excerpts from, such files, books and records as they may
deem advisable.
If the purchase and sale contemplated in this Agreement
are not consummated, each of the parties shall (i) return all
written information and copies and summaries thereof to the party
from which such information originated and (ii) maintain in
confidence and not disclose to third parties any information
obtained from the other party which the other party designated as
confidential or with respect to which the circumstances of its
disclosure reasonably indicated that the other party treated it
as confidential. The foregoing shall not apply to any
information that is or becomes part of public or industry
knowledge for reasons other than the acts or omissions of the
party to whom such information is disclosed in connection with
the transactions contemplated herein. The provisions of this
Section 9.3 shall survive the termination of this Agreement for
any reason.
9.4 Releases, Consents, Waivers and Filings. The
parties shall use their respective best efforts and cooperate
with each other to do all things reasonably necessary or
desirable to consummate in an expeditious manner the transactions
contemplated by this Agreement. In this regard, the parties
shall cooperate to obtain from all relevant third parties and
governmental authorities all consents, waivers, permits,
authorizations and licenses to or for, such transactions that may
be required under any agreement, lease, financing arrangement,
license, permit or other instrument or under any applicable law,
rule or regulation, and to obtain and file appropriate
registrations and transfers of Seller's intellectual property.
9.5 No Solicitation. Neither Seller nor any Principal
shall, directly or through any other party, negotiate or conclude
an agreement with any other party for a merger or sale of the
securities of Seller or for the sale or other disposition of the
business or assets of Seller, or enter into any discussions with
any other party for such purposes or knowingly take any other
action that might materially prejudice the consummation of the
transactions contemplated herein, unless this Agreement is
terminated in accordance with Section 15.1.
Post-Closing Matters.
10.1 Operation of Seller's Business During Earnout
Periods. For each Earnout Period, Buyer shall prepare and submit
to the Board of Directors of Headway Corporate Staffing Services,
Inc. ("HCSSI") annual operating and capital expenditure budgets
with respect to Seller's business, as well as interim budget
reports, at such times as the HCSSI Board of Directors (the
"HCSSI Board") reasonably establishes, which budgets shall be
approved in the reasonable discretion of the HCSSI Board. After
a budget is approved by the HCSSI Board, Buyer's management shall
be authorized to act and to operate Seller's business in
accordance with such budget. Headway and HCSSI shall at all
times have access to the books and records of Buyer and to such
other information pertaining to its business as they request from
time to time and shall have the right at any time to audit the
books of Buyer. Each of Seller and the Principals acknowledge
that Buyer shall, in connection with the operation of Seller's
business, be required to implement the accounting and operating
systems and procedures of the Headway group of companies. To the
extent that Seller's business is not meeting the annual operating
or capital expenditure budgets then in effect, or its accounts
receivable collection experience is less favorable than that of
other HCSSI subsidiaries, the HCSSI Board shall have the right to
require Buyer to make such changes in its operations and
personnel as the HCSSI Board deems reasonably necessary. In the
event of a dispute with respect to the calculation of Net Income
for any Earnout Period, to the extent that the parties cannot
resolve their differences after the meeting of the parties with
their accountants contemplated by Section 1.3(c) and to the
extent that neither Principal is then employed by Buyer, the
Principals shall have the right, under the supervision of Headway
or Buyer personnel, upon reasonable prior written notice to Buyer
and Headway and during normal business hours, to review the books
and records of Buyer and Headway pertaining to such Net Income
calculation; provided, that neither Principal may make copies of
any such books and records.
10.2 Seller's Employees. Buyer shall, after
conferring with the Principals in such regard, inform Seller
reasonably prior to the Closing Date as to whether it wishes to
employ any of Seller's or Uniforce's employees (who, with respect
to Uniforce, are those temporary employees of Uniforce who are
providing services on behalf of Seller pursuant to the Licensing
Agreements), and if it wishes to do so, the names of such
employees and the positions and compensation Buyer proposes to
offer them. Seller shall permit Buyer to offer employment to
such employees on the terms proposed by Buyer prior to the
Closing Date. Immediately prior to the Closing Date, Seller
shall inform any of Seller's employees to whom Buyer does not
offer employment, or who do not accept Buyer's offer of
employment if made, that they shall be relieved of their duties
with respect to the business of Seller being acquired by Buyer
hereunder, effective on the Closing Date. All liabilities and
obligations associated with the termination of employment by
Seller of any of its employees to whom Buyer does not offer
employment or who do not accept Buyer's offer of employment under
contract or applicable law or otherwise shall be the sole
responsibility of Seller, and Seller, each of the Principals and
Bencini-Tibo, jointly and severally, shall discharge and
indemnify, defend and hold harmless Buyer and Headway and their
respective officers, directors, employees, agents and
shareholders from all such obligations and liabilities.
10.3 Conversion of Uniforce Employees. Seller and the
Principals agree to provide Headway and Buyer with all records,
information and other assistance necessary for Headway and Buyer
to complete the conversion from Uniforce to Buyer of those
temporary and payrolled employees of Uniforce who are, as of the
Closing Date, providing services on behalf of Seller pursuant to
the Licensing Agreements.
10.4 Insurance Matters. The parties shall cooperate to
preserve the existing insurance coverage of Seller with respect
to the Acquired Assets through the Closing and to effect an
appropriate transition to Buyer's insurance, if requested, at the
time of Closing.
10.5 Financial Statements. On or prior to 30 days
following the Closing Date, Seller and the Principals shall, at
their expense, prepare and deliver to Buyer and Headway unaudited
financial statements for the period from April 1, 1998 to the
Closing Date, such financial statements shall be prepared in
accordance with generally accepted accounting principles
consistently applied and on an accrual basis.
10.6 Termination Agreement Payments. Seller, each
Principal and Bencini-Tibo acknowledge and agree to make the
payments required under Section 5 of the Termination Agreement on
the dates so indicated and to provide prompt written notice to
Headway of any such payments. To the extent that any such
payment cannot be made on the date so indicated, Seller shall
provide Headway with immediate written notice of the same and
shall permit Headway to make such payment. Seller, each
Principal and Luca-Bencini, jointly and severally, shall be
liable upon demand for the repayment of any such payments made by
Headway. At Headway's option, without limiting any other rights
of Headway, Headway shall have the right to set off and against
and deduct from any amounts payable pursuant to the provisions of
Section 1.3 the amount of any such payments in whole or in part.
10.7 Further Assurances. Whenever reasonably requested
to do so by a party to this Agreement, on or after the Closing
Date, any other party shall do, execute, acknowledge and deliver
all such acts, bills of sale, assignments, confirmations,
consents and any and all such further instruments and documents,
in form reasonably satisfactory to the requesting party, as shall
be reasonably necessary or advisable to carry out the intent of
this Agreement, including, without limitation, to vest in Buyer
all of the right, title and interest of Seller in and to the
Acquired Assets.
10.8 Authorization to Buyer. Without limiting in any
respect the right, title and interest in and to the Acquired
Assets to be acquired by Buyer hereunder, Seller irrevocably
authorizes, effective upon the Closing, Buyer and its successors
and assigns, to demand and receive, from time to time, any and
all of the Acquired Assets, to give receipts and releases for or
in respect of the same, to collect, assert or enforce any claim,
right or title of any kind therein or thereto and, for such
purpose, from time to time, to institute and prosecute in the
name of Seller (but only if Seller consents to such use of its
name), or otherwise, any and all proceedings at law, in equity or
otherwise, which Buyer shall deem expedient or desirable.
10.9 Correspondence. Seller authorizes Buyer, on and
after the Closing Date, to receive and open mail addressed to
Seller and to deal with the contents thereof in a responsible
manner; provided, that such mail relates to the Acquired Assets
or to the business of Seller to be carried on by Buyer. Buyer
shall promptly deliver to Seller all other mail addressed to
Seller which is received by Buyer. Seller shall have the right,
on its request and its expense, to inspect any such mail
addressed to it and retained by Buyer and to make copies thereof.
NonCompetition.
11.1 General. Each of Seller and the Principals
agrees, for a period of four years after the Closing Date (the
"Term"), that it shall not, in the State of Florida or in any
other area in which Headway or Buyer conducts the business of the
placement or provision of temporary, permanent, leased or
payrolled personnel (including self-incorporated personnel)
during the Term (or for such lesser area or such lesser period as
may be determined by a court of competent jurisdiction to be a
reasonable limitation on the competitive activity of each of
Seller and the Principals), directly or indirectly:
(a) engage, for or on behalf of itself or any person
or entity other than Buyer or Headway, in the business of the
placement or provision of temporary, permanent, leased or
payrolled personnel (including self-incorporated personnel);
(b) solicit or attempt to solicit business for
services offered by Seller, Buyer or Headway from any parties who
(i) are clients of Seller on the Closing Date or at any time
during the 12 months prior to the Closing Date or to whom Seller
has made or makes proposals for services during the 12 months
preceding the Closing Date or (ii) are clients of Buyer or
Headway during the Term or to whom Buyer or Headway makes
proposals for services during the Term;
(c) otherwise divert or attempt to divert from Buyer
or Headway any business involving the placement or provision of
temporary, permanent, leased or payrolled personnel (including
self-incorporated personnel) of the type now or during the Term
conducted by Seller, Buyer or Headway;
(d) solicit or attempt to solicit for any business
endeavor any employee of Buyer or Headway, including any employee
of Seller who is employed by Buyer after the Closing Date; or
(e) render any services as a joint venturer, partner,
consultant or otherwise to, or have any interest as a
stockholder, partner, member, lender or otherwise in, any person
or entity which is engaged in activities which, if performed by
Seller or the Principals, would violate this Section 11.1.
The foregoing shall not prevent Seller or any of the Principals
from purchasing or owning (i) up to 5% of the voting securities
of any corporation, the securities of which are publicly-traded,
or (ii) any interest in any entity which is not also engaged in
the business of the placement or provision of temporary,
permanent, leased or payrolled personnel (including self-
incorporated personnel). Seller and the Principals shall,
during the Term, direct any business opportunities in the
temporary, permanent, leased or payrolled personnel placement
business that may come to their attention to Buyer and Headway.
Notwithstanding the foregoing, to the extent that either
Principal is terminated without cause under Section 3.2 of its
Employment Agreement with Buyer and not as a result of such
Principal's death or disability pursuant to Section 3.3 of such
Employment Agreement, Section 11.1(a) shall no longer apply to
such Principal. References to Headway and Buyer in this Section
11 shall also be deemed to refer to their respective divisions
and subsidiaries.
11.2 Injunctive Relief. Because Buyer and Headway
would not have an adequate remedy at law to protect their
businesses from any breach of the provisions of Section 11.1,
Buyer and Headway shall be entitled, in the event of such a
breach or threatened breach thereof by Seller or any of the
Principals, to injunctive relief, in addition to such other
remedies and relief that would be available to Buyer. In the
event of such a breach, in addition to any other remedies, Buyer
and Headway shall be entitled to receive from Seller and the
Principals, jointly and severally, payment of, or reimbursement
for, their reasonable attorneys' fees and disbursements incurred
in successfully enforcing any such provision. The provisions of
this Section 11 shall survive the Closing Date.
Bulk Sales. Buyer waives compliance by Seller
with the provisions of any applicable bulk sales law. Seller
shall promptly pay or otherwise discharge all valid claims of its
creditors (as defined by the applicable bulk sales law), as and
when they become due and payable (in accordance with Seller's
customary and commercially reasonable practices), and Seller and
each Principal, jointly and severally, shall indemnify and hold
harmless Buyer and Headway from any and all liabilities, costs
and expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by Buyer and arising
from the failure of Seller to satisfy the claims of such
creditors.
Indemnification.
13.1 Obligations of Seller and the Principals. Seller,
each Principal and Bencini-Tibo, jointly and severally, shall
indemnify, defend and hold harmless Buyer and Headway and their
respective officers, directors, employees, agents, shareholders,
successors and assigns from and against any Damages (as defined
in Section 13.3) in connection with:
(a) any breach of any representation, warranty or
agreement of either Seller or the Principals contained in this
Agreement or in any certificate, instrument or other agreement
delivered by either of them in connection with this Agreement;
(b) all Unassumed Liabilities and the operation of
Seller's business at any time prior to the Closing Date;
(c) any liabilities or obligations of Seller, Kamler,
Bencini-Tibo or Uniforce arising out of or in connection with the
Licensing Agreements or the Termination Agreement, or of Kamler
arising out of or in connection with the Guaranty;
(d) any liabilities or obligations of SSI to
Buongermino arising out of or in connection with the Stock
Redemption Agreement;
(e) any liabilities or obligations of Seller to LRX
arising out of or in connection with the LRX Agreement;
(f) the termination of the employment of any of
Seller's employees, as contemplated in Section 10.2; and
(g) any claim, action, suit or proceeding asserted or
instituted on the basis of any matter described in clauses (a),
(b), (c), (d), (e) or (f) of this Section 13.1;
provided, however, that, except in connection with liabilities
under clauses (b), (c), (d), (e) or (f) above, the breach of the
representations and warranties set forth in Sections 6.14 and
6.18 relating to Taxes and Benefit Plans or the breach of the
provisions set forth in Section 11 relating to non-competition
(as to which the limitations of these provisos shall not apply),
no payment hereunder shall be required to be made by Seller, the
Principals or Bencini-Tibo unless and until the aggregate amount
of any such losses, damages, liabilities, costs and expenses
exceeds $15,000 and Seller, the Principals and Bencini-Tibo shall
not be required to make payments hereunder in excess of the
Purchase Price.
13.2 Obligations of Buyer and Headway. Buyer and
Headway, jointly and severally, shall indemnify, defend and hold
harmless Seller, each of the Principals and Bencini-Tibo and
their respective heirs, executors, officers, directors,
employees, agents, shareholders, successors and assigns, as
applicable, from and against any Damages in connection with:
(a) any breach of any representation, warranty or
covenant of either Buyer or Headway (and their respective
successors and assigns) contained in this Agreement or in any
certificate, instrument or other agreement delivered by either of
them in connection with this Agreement;
(b) all Assumed Liabilities and the operation by Buyer
of the business of Seller being acquired by Buyer hereunder at
any time on or after the Closing Date; and
(c) any claim, action, suit or proceeding asserted or
instituted on the basis of any matter described in clauses (a) or
(b) of this Section 13.2;
provided, however, that, except in connection with clause (b)
above, no payment hereunder shall be required to be made by Buyer
or Headway unless and until the aggregate amount of any such
losses, damages, liabilities, costs and expenses exceeds $15,000
(and then only in excess of such amount) and Buyer and Headway
shall not be required to make payments hereunder in excess of the
Purchase Price.
13.3 Damages. For purposes of this Section 13,
"Damages" means any loss, liability, damage or expense suffered
or incurred by a party in connection with the matters described
in Sections 13.1 or 13.2, as the case may be, including, without
limitation, assessments, fines, penalties, judgments,
settlements, costs, reasonable attorneys' fees and reasonable
disbursements and other reasonable out of pocket expenses of the
party incident to any matter as to which the party is entitled to
indemnification under such Sections, or incident to any
allegations or claims which, if true, would give rise to Damages
subject to indemnification hereunder, or incident to the
enforcement by the party of its rights and remedies under this
Section 13.
13.4 Proceedings. Any party seeking indemnification
pursuant to this Section 13 (the "Indemnified Party") shall give
the party from which indemnification is sought (the "Indemnifying
Party") prompt notice of any claim, allegation, action, suit or
proceeding which it believes might give rise to indemnification
under this Section 13, stating the nature and extent of any such
claim, allegation, suit or proceeding with reasonable
specificity, and the amount thereof, if known. Any failure to
give such notice shall not affect the indemnification provided
hereunder except to the extent that the Indemnifying Party is
actually prejudiced as a result of such failure. The
Indemnifying Party shall have the right to participate in, and,
with the consent of the Indemnified Party, which consent shall
not be unreasonably withheld or delayed, to control, the defense
of any such claim, allegation, action, suit or proceeding, at the
Indemnifying Party's expense, and with counsel of its own
choosing reasonably acceptable to the Indemnified Party;
provided, however, that if Buyer and Headway are the Indemnified
Parties, they shall have the right to withhold such consent and
to retain control of such defense in the case of any claim,
action, suit or proceeding with respect to which an adverse
outcome could have a material adverse effect on Buyer or Headway,
with the expense of any counsel retained by Buyer and Headway in
any such instance to be at Buyer's and Headway's expense. No
settlement or compromise of any such claim, action, suit or
proceeding shall be made without the prior consent of the
Indemnified Party and the Indemnifying Party, which consent shall
not be unreasonably withheld or delayed by either of them.
13.5 Limitations on Indemnification. No right to
indemnification may be asserted under this Section 13 after the
third anniversary of the Closing Date, except any such rights to
indemnification arising in connection with (a) any matter
referred to in Sections 6.14 or 6.18, none of which shall be
subject to any time limitation other than any statutes of
limitation applicable to such matters, (b) any matter covered by
Section 11 or (c) any claim as to which the notice required by
Section 13.4 has been given on or prior to the third anniversary
of the Closing Date.
13.6 Offset. It is agreed that, without limiting any
other rights of Buyer and Headway, they shall have the right to
set off against and deduct from any amounts payable pursuant to
the provisions of Section 1.3 the amount of (i) any Damages for
which they are entitled to indemnification under this Section 13
and (ii) any payments under the Termination Agreement made by
Headway on behalf of Seller, Kamler and Bencini-Tibo pursuant to
Section 10.6.
Arbitration.
14.1 General. Any controversy or claim arising out of
or relating to this Agreement shall be finally resolved by
arbitration pursuant to the Commercial Arbitration Rules of the
American Arbitration Association; provided, however, that this
Section 14.1 shall not in any way affect the right of Buyer and
Headway to seek injunctive relief or any other remedies pursuant
to Section 11.2. Any such arbitration shall take place in New
York, New York, before three arbitrators, one of which shall be
appointed by Buyer or Headway, one by Seller, the Principals and
Bencini-Tibo, and the third by the arbitrators so appointed;
provided, however, that the parties may by mutual agreement
designate a single arbitrator. The parties further agree that
(i) the arbitrators shall be empowered to include arbitration
costs and attorney fees in the award to the prevailing party in
such proceedings and (ii) the award in such proceedings shall be
final and binding on the parties. The arbitrators shall apply
the law of the State of New York, exclusive of conflict of laws
principles, to any dispute. Judgment on the arbitrators' award
may be entered in any court having the requisite jurisdiction.
Nothing in this Agreement shall require the arbitration of
disputes between the parties that arise from actions, suits or
proceedings instituted by third parties.
14.2 Consent to Jurisdiction; Service of Process. Each
party irrevocably submits to the jurisdiction and venue of the
arbitration described in Section 14.1 and to the jurisdiction and
venue of the federal and state courts sitting in New York County,
New York, for the enforcement of any judgment on the arbitrators'
award, and waives any objection it may have with respect to the
jurisdiction of such arbitrations or courts or the inconvenience
of such forums or venues. Buyer and Headway appoint Messrs.
Christy & Viener, 620 Fifth Avenue, New York, New York 10020,
Attention: Laurence S. Markowitz, Esq., and Seller, the
Principals and Bencini-Tibo appoint Messrs. Bloch & Minerley,
P.L., 980 North Federal Highway, Suite 205, Boca Raton, Florida
33432, Attention: Kenneth L. Minerley, Esq., as their respective
attorneys-in-fact and authorized agents solely to receive on
their behalf, service of any demands for, or any notice with
respect to, arbitration hereunder or any service of process.
Service on either of such attorneys-in-fact may be made by
registered or certified mail or by personal delivery, in any case
return receipt requested, and shall be effective as service on
Buyer and Headway or Seller, the Principals and Bencini-Tibo, as
the case may be. Nothing herein shall be deemed to affect any
right to serve any such demand, notice or process in any other
manner permitted under applicable law.
Miscellaneous.
15.1 Termination; Break-up Fee.
(a) This Agreement may be terminated at any time prior
to the Closing Date by the mutual written consent of all the
parties.
(b) If Headway and Buyer elect not to consummate the
transactions contemplated by this Agreement for any reason other
than because of a material misrepresentation by Seller and the
Principals of any representation or warranty of such parties
contained herein, Headway shall pay to Seller a break-up fee of
$25,000 in cash. Headway shall promptly notify Seller in writing
of any such election and shall pay the break-up fee, if any,
within ten days of the date of such notice.
15.2 Entire Agreement; Amendments; No Waivers. This
Agreement, together with the Schedules, sets forth the entire
understanding of the parties with respect to its subject matter
and merges and supersedes all prior and contemporaneous
understandings of the parties with respect to its subject matter.
No provision of this Agreement may be waived or modified, in
whole or in part, except by a writing signed by each of the
parties. Failure of any party to enforce any provision of this
Agreement shall not be construed as a waiver of its rights under
such or any other provision. No waiver of any provision of this
Agreement in any instance shall be deemed to be a waiver of the
same or any other provision in any other instance.
15.3 Communications. All notices, consents and other
communications given under this Agreement shall be in writing and
shall be deemed to have been duly given (a) when delivered by
hand or by Federal Express or a similar overnight courier to, (b)
five days after being deposited in any United States post office
enclosed in a postage prepaid registered or certified mail
envelope addressed to, or (c) when successfully transmitted by
facsimile (with a confirming copy of such communication to be
sent as provided in (a) or (b) above) to, the party for whom
intended, at the address or facsimile number for such party set
forth below, or to such other address or facsimile number as may
be furnished by such party by notice in the manner provided
herein; provided, however, that any notice of change of address
or facsimile number shall be effective only on receipt.
If to Buyer or Headway: with a copy to:
Headway Corporate Resources, Inc. Christy & Viener
850 Third Avenue 620 Fifth Avenue
New York, New York 10022 New York, New York 10020
Attention: Barry S. Roseman, President Attention: Laurence
S. Markowitz, Esq.
Fax No.: (212) 508-3540 Fax No.: (212) 632-5555
If to Seller, the Principals or Bencini-Tibo:
Mr. Gary Kamler with a copy to:
_________________________
_________________________ Bloch & Minerley, P.L.
Fax No.: (954) 481-1939 980 North Federal
Highway, Suite 205
Boca Raton, Florida 33432
Ms. Hilary Bencini Attention: Kenneth L.
Minerley, Esq.
Mr. Luca Bencini-Tibo Fax No.: (561) 447-9884
_________________________
_________________________
Fax No.: (954) 385-1758
15.4 Successors and Assigns. This Agreement shall be
binding on, enforceable against and inure to the benefit of, the
parties and their respective heirs, successors and permitted
assigns (whether by merger, consolidation, acquisition or
otherwise), and nothing herein is intended to confer any right,
remedy or benefit upon any other person. No party may assign its
rights or delegate its obligations under this Agreement without
the express written consent of all of the other parties;
provided, however, that Buyer may assign its rights or delegate
its obligations hereunder, either before or after the Closing, to
Headway or any other wholly-owned subsidiary of Headway.
15.5 Expenses. Each of the parties shall bear and pay,
without any right of reimbursement from any other party, all
costs, expenses and fees incurred by it or on its or his behalf
incident to the preparation, execution and delivery of this
Agreement and the performance of such party's obligations
hereunder, whether or not the transactions contemplated in this
Agreement are consummated, including, without limitation, the
fees and disbursements of attorneys, accountants and consultants
employed by such party, and shall indemnify and hold harmless the
other parties from and against all such fees, costs and expenses.
15.6 Brokers and Finders. Each party represents to the
others that no agent, broker, investment banker, financial
advisor or other person or entity is or shall be entitled to any
broker's or finder's fee or other commission or similar fee in
connection with the transactions contemplated by this Agreement.
Each party shall indemnify and hold harmless the others from and
against any claim, liability or obligation with respect to any
fees, commissions or expenses asserted by any person or entity on
the basis of any act or statement alleged to have been committed
or made by such indemnifying party or any of its affiliates.
15.7 Public Announcements. No oral or written public
announcement or disclosure with respect to this Agreement and the
transactions contemplated herein prior to the Closing Date shall
be made by or on behalf of any party without the prior approval
of the other parties, except to the extent required by applicable
securities laws or the rules and regulations of any stock
exchange, by court order or as otherwise required by law.
15.8 Governing Law. This Agreement shall in all
respects be governed by and construed in accordance with the laws
of the State of New York applicable to agreements made and fully
to be performed in such state, without giving effect to conflicts
of law principles.
15.9 Severability and Savings Clause. If any provision
of this Agreement is held to be invalid or unenforceable by any
court or tribunal of competent jurisdiction, the remainder of
this Agreement shall not be affected thereby, and such provision
shall be carried out as nearly as possible according to its
original terms and intent to eliminate such invalidity or
unenforceability. In this regard, the parties agree that the
provisions of Section 11, including, without limitation, the
scope of the territorial and time restrictions, are reasonable
and necessary to protect and preserve Buyer's legitimate
interests. If the provisions of Section 11 are held by a court
of competent jurisdiction to be in any respect unreasonable, then
such court may reduce the territory or time to which it pertains
or otherwise modify such provisions to the extent necessary to
render such provisions reasonable and enforceable.
15.10 Counterparts. This Agreement may be executed
in multiple counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument.
15.11 Construction. Headings used in this
Agreement are for convenience only and shall not be used in the
interpretation of this Agreement. References to Sections and
Schedules are to the sections and schedules of this Agreement.
As used herein, the singular includes the plural and the
masculine, feminine and neuter gender each includes the others
where the context so indicates.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first set forth above.
HEADWAY CORPORATE RESOURCES, INC. HEADWAY CORPORATE STAFFING
SERVICES OF FLORIDA, L.L.C.
By Barry S. Roseman By Michael List
STAFFING SOLUTION INC. INTELLIGENT STAFFING, INC.
By Gary Kamler By Gary Kamler
/s/ GARY KAMLER /s/ HILARY BENCINI
with respect to Sections 1.5, 10.2, 13 and 14 only
/s/ LUCA BENCINI-TIBO