EXHIBIT 4.1
ASSET PURCHASE AGREEMENT
Dated December 16, 2005
among
SOFT LINK SOLUTIONS, INC.,
AS SELLER
ETG, INC.,
AS PURCHASER
AND
INFOCROSSING INC.,
AS PARENT
<PAGE>
TABLE OF CONTENTS
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1
Agreement to Purchase and Sell
1.2
Enumeration of Purchased Assets
1.3
Excluded Assets
ARTICLE II
ASSUMPTION OF LIABILITIES
2.1
Agreement to Assume
2.2
Description of Assumed Liabilities
2.3
Excluded Liabilities
ARTICLE III
PURCHASE PRICE, MANNER OF PAYMENT AND CLOSING
3.1
Purchase Price
3.2
Time and Place of Closing
3.3
Manner of Payment of the Purchase Price
3.4
Escrow Amount
3.5
Estimated Net Current Liabilities
3.6
Net Current Liabilities
3.7
Estimated Indebtedness Repayment
3.8
Allocation of Purchase Price
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
4.1
Organization
4.2
Authority
4.3
Governmental Consents
4.4
Conflicts
4.5
Defaults
4.6
Broker's Fees
4.7
Authorization of Issuance of Parent Common Stock
4.8
SEC Filings; Financial Statements
4.9
Survival
4.10
Disclaimer of Additional Representations and Warranties
ARTICLE V
SELLER'S REPRESENTATIONS AND WARRANTIES
5.1
Organization; Authority to Conduct Business
5.2
Authority
5.3
Governmental Consents
5.4
Conflicts
5.5
Subsidiaries
5.6
Financial Information
5.7
Liens
5.8
Taxes
5.9
Material Adverse Change
5.10
Contracts
5.11
Permits
5.12
Employee Benefits; Employment Matters
5.13
Litigation and Claims
5.14
Environmental Matters
5.15
Leased Premises
5.16
Intellectual Property
5.17
Investment Experience
5.18
Investment; Legend
5.19
Rule 144
5.20
Broker's Fees
5.21
Limitation on Warranties; Survival
5.22
Top Five Customers
5.23
Definition of Knowledge
5.24
Disclaimer of Additional Representatives and Warranties
ARTICLE VI
CONDUCT PRIOR TO THE CLOSING
6.1
General
6.2
Seller's Obligations
6.3
Purchaser's Obligations
6.4
Joint Obligations
ARTICLE VII
CONDITIONS TO CLOSING
7.1
Conditions to Seller's Obligations
7.2
Conditions to Purchaser's Obligations
ARTICLE VIII
CLOSING
8.1
Form of Documents
8.2
Purchaser's Deliveries
8.3
Seller's Deliveries
ARTICLE IX
POST-CLOSING AGREEMENTS
9.1
Post-Closing Agreements
9.2
Inspection of Records
9.3
Certain Tax Matters
9.4
Use of Trademarks; References to Seller
9.5
Collection of Accounts Receivable
9.6
Third Party Claims
9.7
[Intentionally omitted]
9.8
Non-Assignment
9.9
Non-Competition and Non-Solicitation
9.10
Further Assurances
9.11
Registration Rights
ARTICLE X
EMPLOYEES AND EMPLOYEE BENEFIT PLANS
10.1
Employment of Seller's Employees
10.2
Seller Benefit Plans
10.3
Purchaser Benefit Plans
ARTICLE XI
INDEMNIFICATION
11.1
General
11.2
Certain Definitions
11.3
Indemnification Obligations of Seller
11.4
Limitation on Seller's Indemnification Obligations
11.5
Purchaser's Indemnification Covenants
11.6
Limitation on Purchaser's Indemnification Obligations
11.7
Cooperation
11.8
Third Party Claims
11.9
Indemnification Exclusive Remedy
ARTICLE XII
EFFECT OF TERMINATION/PROCEEDING
12.1
General
12.2
Right to Terminate
12.3
Certain Effects of Termination
12.4
Remedies
12.5
Right to Damages
ARTICLE XIII
MISCELLANEOUS
13.1
[Intentionally Omitted]
13.2
Sales and Transfer Taxes
13.3
Publicity
13.4
Notices
13.5
Expenses
13.6
Entire Agreement
13.7
Non-Waiver
13.8
Counterparts
13.9
Severability
13.10
Applicable Law
13.11
Binding Effect; Benefit
13.12
Assignability
13.13
Amendments
13.14
Headings
13.15
Governmental Reporting
13.16
Waiver of Trial by Jury
13.17
Consent to Jurisdiction
13.18
Definitions
SCHEDULES
Schedule 1.2(a)
Tangible Assets
Schedule 1.2(e)
Deposits, Prepaids and Reserves
Schedule 1.2(g)
Permits
Schedule 1.3(j)
Other Excluded Assets
Schedule 1.3(k)
Receivables
Schedule 3.5 Net
Current Liabilities Schedule
Schedule 5.1 Foreign
Jurisdictions
Schedule 5.6(a)
Financial Statements
Schedule 5.6(b)
Interim Financial Statements
Schedule 5.7 Permitted
Liens
Schedule 5.10(a)
Material Contracts
Schedule 5.12(a)
Pension Plans
Schedule 5.12(b)
Welfare Plans
Schedule 5.12(n)
Employees
Schedule 5.15 Leased
Premises
Schedule 5.16 Intellectual
Property
Schedule 5.20 Broker's
Fees
Schedule 5.22 Top Five
Customers of 2005
Schedule 6.2(c)
Material Consents
<PAGE>
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE
AGREEMENT (this "Agreement") is made as of December 16,
2005, between SOFT LINK SOLUTIONS, INC., a Delaware corporation
("Seller"), ETG,
INC., a Delaware corporation ("Purchaser"), and INFOCROSSING, INC.,
a Delaware
corporation ("Parent").
R E C I T A L S
A.
Seller is in the business of providing enterprise application
consulting
and systems integration services for the human resources, financial
management
and higher education arenas (the "Business").
B.
Seller desires to sell to Purchaser substantially all of Seller's
assets
relating exclusively to the Business and Purchaser desires to
purchase said
assets, all on the terms and subject to the conditions contained in
this
Agreement.
A G R E E M E N T S
Therefore, for good and valuable consideration, the receipt and
sufficiency
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1
Agreement to Purchase and Sell. On the terms and subject to the
conditions contained in this Agreement, Purchaser agrees to
purchase from
Seller, and Seller agrees to sell to Purchaser, except for Excluded
Assets (as
herein defined), the assets, contracts, properties, rights and
choses in action,
whether tangible, intangible, real, personal, mixed, accrued,
contingent or
otherwise as of the Closing (as herein defined), wherever situated
or located,
of Seller which are used in or relate to the conduct of the
Business and which
are described in Section 1.2 (the "Purchased Assets") in each case
free of all
Liens (as herein defined) other than Permitted Liens (as herein
defined).
Without limiting the generality of the foregoing, the Purchased
Assets shall not
include any of the assets, contracts, properties, rights and choses
in action,
whether tangible, intangible, real, personal, mixed, accrued,
contingent or
otherwise described in Section 1.3 (the "Excluded Assets").
1.2
Enumeration of Purchased Assets. The Purchased Assets include
the
following assets owned by Seller, except to the extent that any of
the foregoing
are also enumerated in Section 1.3 as being Excluded Assets:
(a) all furniture, art work, fixtures, equipment (including
office
equipment), machinery, parts, computer hardware, tools, dies,
jigs,
patterns, molds, automobiles and trucks and all other tangible
personal
property used in the conduct of the Business, including those items
set
forth on Schedule 1.2(a) hereto;
(b) all leasehold interests and leasehold improvements created by
all
leases, including, without limitation, capitalized leases, of
personal
property used in connection with the Business under which Seller is
a
lessee or lessor;
(c) Seller's entire leasehold interest as lessee of that certain
real
property known as (i) 2375 Ariel Street, Maplewood, MN 55109, (ii)
3891
Vista Oakes Drive #307, Martinez, CA 94553 and (iii) 5352 Congress
Avenue
#1,
Madison, WI 53718 described on Schedule 1.2(c) hereto
(collectively,
the
"Leased Premises");
(d) [intentionally omitted];
(e) all deposits and rights with respect thereto in connection
with
the
Business, a list of which deposits is set forth on Schedule
1.2(e)
hereto;
(f) subject to Section 9.8 and Section 1.3(i), all contracts
and
agreements (and benefits arising therefrom), relating to or arising
out of
the
Business, including all sales orders and sales contracts,
purchase
orders and purchase contracts, quotations and bids generated by
the
operation of the Business and the contracts and agreements listed
on
Schedule 5.10(a) hereto;
(g) all Permits (as herein defined) and Environmental Permits
(as
herein defined) which are capable of being transferred, including
the
Permits and Environmental Permits set forth on Schedule 1.2(g)
hereto;
(h) [Intentionally omitted]
(i) all intellectual property rights relating to the Business,
including, without limitation, domain names, patents and
applications
therefor, know-how, unpatented inventions, trade secrets, secret
formulas,
business and marketing plans, copyrights and applications
therefor,
trademarks and applications therefor, service marks and
applications
therefor, trade names and applications therefor, trade dress, and
names and
slogans used by Seller (including, without limitation, the names,
and all
goodwill associated with such intellectual property rights),
including
without limitation the items set forth on Schedule 5.16 hereto;
(j) all books and records relating to the Business, including,
without
limitation, all accounting, financial and other related records
and
documents, material correspondence, manuals, blueprints, drawings
and other
technical papers, payroll, employee benefit, accounts receivable
and
payable, inventory, maintenance, and asset history records,
ledgers, books
of
original entry, all insurance records and OSHA and EPA files,
standard
operating procedures, customer lists, supplier lists and any
other
confidential or proprietary information pertaining to the
Business;
(k) all computer software relating to the Business, including
all
documentation and source codes with respect to such software and,
subject
to
Section 9.8, all licenses and leases of software;
(l) all sales and promotional materials, catalogues and
advertising
literature relating to the Business;
(m) all telephone numbers of the Business, including any phone
numbers
used
for customer service and marketing of the Business;
(n) [intentionally omitted];
(o) all prepayments, refunds (other than Tax (as herein
defined)
refunds), rights of offset or recoupment related to the Purchased
Assets or
the
Business;
(p) all rights of indemnification, causes of action and rights in
and
to
claims and litigation (and in each case benefits to the extent
they
arise therefrom) against third parties to the extent such claims
and
litigation are in any way related to the Business, the Purchased
Assets or
the Assumed
Liabilities (as herein defined), including product warranty
claims with respect to tangible assets of the Business against
the
suppliers thereof other than with respect to the Excluded Assets
and
Excluded Liabilities; and
(q) all
goodwill associated with the Business.
1.3
Excluded Assets. The Excluded Assets shall consist of all
assets,
properties and rights not enumerated as Purchased Assets in Section
1.2,
including, without limitation, the following items:
(a) all cash on hand and in banks, cash equivalents and
investments;
(b) Seller's bank accounts, checkbooks and cancelled checks;
(c) Rights to indemnification, causes of action and rights in and
to
claims and litigation (and in each case benefits to the extent they
arise
therefrom) against third parties to the extent such claims and
litigation
are
not in any way related to the Business, the Purchased Assets or
the
Assumed Liabilities (as herein defined), and rights in and to
claims (and
benefits to the extent they arise therefrom) that relate solely to
the
Excluded Assets and Excluded Liabilities (as herein defined);
(d) insurance policies of Seller and rights in connection
therewith;
(e) rights arising from any refunds due with respect to
insurance
premium payments to the extent they relate to insurance policies
which
constitute Excluded Assets and refunds due from federal, state
and/or local
taxing authorities with respect to Taxes heretofore paid by
Seller;
(f) deposits of Seller with the Internal Revenue Service,
including,
without limitation, tax deposits, prepayments and estimated
payments;
(g) Seller's rights under this Agreement;
(h) Seller's corporate charter, minute and stock record books,
and
corporate seal and tax returns;
(i) Deposits and bonds posted for Seller's 401(k) Plan and a
$250,000
insurance policy issued by Old Republic Surety Company to insure
the 401(k)
Plan;
(j) the assets, if any, described on Schedule 1.3(j) hereto;
(k) all trade accounts receivable, miscellaneous receivables,
notes
receivable, negotiable instruments and chattel paper related to the
conduct
of
the Business on or prior to the Closing, a list of which, current
as of
November 30, 2005, is set forth on Schedule 1.3(k) hereto (the
"Excluded
Accounts Receivable"); and
(l) all lock boxes relating to the Business to which Seller's
account
debtors remit payments.
ARTICLE II
ASSUMPTION OF LIABILITIES
2.1
Agreement to Assume. At the Closing (as herein defined),
Purchaser
shall assume and agree to discharge and perform when due, the
liabilities and
obligations of Seller with respect to the Business which are
described in
Section 2.2 (the "Assumed Liabilities"). All liabilities and
obligations of
Seller enumerated in Section 2.3 are collectively referred to
herein as
"Excluded Liabilities". Seller shall remain liable for the Excluded
Liabilities.
2.2
Description of Assumed Liabilities. The Assumed Liabilities
shall
consist of all liabilities and obligations (whether direct or
indirect, material
or immaterial, known or unknown, absolute, accrued, contingent or
otherwise) of
Seller other than the Excluded Liabilities.
2.3
Excluded Liabilities. The following liabilities and obligations
of
Seller shall constitute Excluded Liabilities:
(a) any
liabilities for legal, accounting, audit and investment
banking fees, brokerage commissions, and any other like expenses
incurred
by
Seller in connection with the negotiation and preparation of
this
Agreement and the sale of the Purchased Assets to Purchaser;
(b) liabilities or obligations of Seller for indebtedness to any
of
its
stockholders or other equity owners or to any Person affiliated
or
associated therewith;
(c) to the extent excluded from Final Net Current Liabilities,
all
trade payables, accrued wages payable, lease payable, accounts
payable and
accrued expenses of Seller pertaining to the Business, including
but not
limited to, the payment of employee salaries, benefits, paid time
off,
payroll Taxes and severance and termination payments, that accrue
on or
prior to the Closing;
(d) any liabilities of Seller (or a third party to which Seller
is
liable as a transferee, by contract or otherwise) for (i) Taxes on
or
measured by income, (ii) franchise Taxes, (iii) Taxes imposed prior
to or
in
connection with Closing on or with respect to the Purchased Assets,
the
Business or otherwise, (iv) income, transfer, sales, use or other
Taxes
arising in connection with the consummation of the transactions
contemplated by this Agreement and (v) the unpaid Taxes of any
other person
pursuant to Treasury Regulation Section 1.1502-6 (or any similar
provision
of
state, local or foreign law), as a transferee, successor, by
contract or
otherwise; and
(e) any liabilities of Seller under those leases, contracts,
insurance
policies, commitments, sales orders, purchase orders, Permits,
Environmental Permits and commitments which constitute Excluded
Assets.
ARTICLE III
PURCHASE PRICE, MANNER OF PAYMENT AND CLOSING
3.1
Purchase Price. The "Purchase Price" of the Purchased Assets
shall
consist of (a) Four Million One Hundred Thousand and 00/100
Dollars
($4,100,000.00) less the amount of the Estimated Net Current
Liabilities, which
shall be paid one-half in the form of cash (the "Cash Portion") and
one-half in
the form of Parent's common stock (the "Stock Portion"), plus (b)
the aggregate
book amount of the Assumed Liabilities. The Stock Portion shall be
valued based
on the average of the last quoted sales price for the ten (10)
trading days
ending with the trading day two business days prior to the Closing
Date. The
payment of the Purchase Price is a joint and several obligation of
Purchaser and
Parent.
3.2
Time and Place of Closing. The transaction contemplated by this
Agreement shall be consummated (the "Closing") at 10:00 a.m. at the
offices of
Stinson Morrison Hecker, LLP, 1201 Walnut Street, Suite 2900,
Kansas City,
Missouri 64106 on January 3, 2006, or on such earlier date, or at
such other
time or place, as shall be mutually agreed upon by Seller and
Purchaser;
provided, however, that the date of the Closing shall be
automatically extended
from time to time for so long as any of the conditions set forth in
Article VII
shall not be satisfied or waived, subject, however, to the
provisions of Section
12.2. The date on which the Closing occurs in accordance with the
preceding
sentence is referred to in this Agreement as the "Closing Date".
The Closing
shall be deemed to be effective for all purposes as of the close of
business on
December 31, 2005.
3.3
Manner of Payment of the Purchase Price. At the Closing:
(a) Purchaser shall assume the Assumed Liabilities;
(b) Purchaser shall pay the Cash Portion, less the Escrowed Funds
(as
defined herein), to Seller, by wire transfer of immediately
available funds
to
such account as Seller shall designate by written notice delivered
to
Purchaser at least two business days prior to the Closing Date
(such
accounts to include accounts for the repayment of indebtedness as
indicated
in
the pay-off letters delivered pursuant to Section 3.7); and
(c) Purchaser shall deliver to Seller a certificate for (i) the
number
of
shares of Parent's common stock having a value of 50% of Four
Million
One
Hundred Thousand and 00/100 Dollars ($4,100,000.00) less the amount
of
the
Estimated Net Current Liabilities, less (ii) the Escrowed Shares
(as
defined herein). 3.4 Escrow Amount. At the Closing, Purchaser shall
deliver
to
Wells Fargo Bank, N.A. (or such other bank mutually agreeable to
Seller
and
Purchaser), as escrow agent (the "Escrow Agent"), Two Hundred
Forty-Two
Thousand Five Hundred and 00/100 Dollars ($242,500.00) in cash
(the
"Escrowed Funds") and a certificate for the number of shares of
Parent's
common stock having a value of Two Hundred Forty-Two Thousand Five
Hundred
and
00/100 Dollars ($242,500.00) based on the average closing price for
the
ten
(10) trading days immediately prior to the Closing Date (the
"Escrowed
Shares" and, together with the Escrowed Funds, the "Escrowed
Amount") to be
held
by the Escrow Agent in an escrow account (the "Escrow Account")
pursuant to the Escrow Agreement (as hereinafter defined). The
parties
acknowledge that the purpose of the Escrow Account is to serve as a
reserve
against breaches of representations, warranties and covenants made
herein
and
as security for performance of indemnity obligations of Seller.
3.5
Estimated Net Current Liabilities. Seller will, in good faith,
prepare
or cause to be prepared and delivered to Purchaser no later than
two business
days prior to the Closing Date a written statement (the "Estimated
Net Current
Liabilities Schedule") setting forth in reasonable detail Seller's
estimate of
the Business' current liabilities less the amount of any current
assets other
than Excluded Accounts Receivable as of the Closing (the "Estimated
Net Current
Liabilities"). The Estimated Net Current Liabilities Schedule will
be prepared
on a basis consistent with the preparation of Seller's financial
statements and
the Business' Estimated Net Current Liabilities shall be calculated
as provided
on Schedule 3.5 hereto.
3.6
Net Current Liabilities.
(a) As promptly as possible and in any event within ninety (90)
days
after the Closing Date, Purchaser will prepare or cause to be
prepared, and
will
provide to Seller, a written statement (the "Closing Net
Current
Liabilities Schedule") setting forth in reasonable detail its
determination
of
the Business' current liabilities less the amount of any current
assets
other than Excluded Accounts Receivable as of the Closing (the
"Closing Net
Current Liabilities"). The Closing Net Current Liabilities Schedule
will be
prepared on a basis consistent with the preparation of the
Estimated Net
Current Liabilities Schedule and the Closing Net Current
Liabilities shall
be
calculated as provided on Schedule 3.5 hereto.
(b) The Closing Net Current Liabilities Schedule will be final,
conclusive and binding on the parties unless Seller provides a
written
notice to Purchaser (a "Dispute Notice") no later than the
thirtieth (30th)
day
after delivery of the Closing Net Current Liabilities Schedule
setting
forth in reasonable detail (i) any item on the Closing Net
Current
Liabilities Schedule which Seller believes has not been prepared
correctly
and
the basis for such determination and (ii) the correct amount of
such
item. Any item or amount to which no dispute is raised and which is
not
otherwise affected by the disputed items or amounts will be
final,
conclusive and binding on the parties. Purchaser and Seller will
attempt to
resolve the matters raised in a Dispute Notice in good faith in
an
expedient manner.
(c) If at the end of thirty (30) calendar days after delivery of
the
Dispute Notice, Seller and Purchaser have been unable to resolve
all of the
differences that they may have with respect to the matters
specified in the
Dispute Notice, Sellers and Purchaser shall submit all matters that
remain
in
dispute with respect to the Dispute Notice (along with a copy of
the
Closing Net Current Liabilities Schedule marked to indicate those
line
items that are not in dispute) to the New York, New York office of
an
independent certified public accounting firm mutually selected by
Purchaser
and
Seller (the "Accounting Arbitrator") within ten (10) calendar
days
after the end of the thirty (30) day resolution period. Each party
agrees
to
execute a reasonable engagement letter if requested by the
Accounting
Arbitrator. During the review by the Accounting Arbitrator,
Purchaser and
Seller will each make available to the Accounting Arbitrator
interviews
with
such individuals, and such information, books and records and
work
papers, as may be reasonably required by the Accounting Arbitrator
to
fulfill its obligations under this Section 3.6; provided, however,
that the
independent accountants of Seller or Purchaser shall not be obliged
to make
any
work papers available to the Accounting Arbitrator unless and
until
such
firm has signed a customary agreement relating to such access to
work
papers in form and substance reasonably acceptable to such
accountants. In
acting under this Agreement, the Accounting Arbitrator will be
entitled to
the
privileges and immunities of an arbitrator. Nothing herein shall
be
construed to require the Accounting Arbitrator to follow the rules
or
procedures of any arbitration association.
(d) Within thirty (30) calendar days after the submission of
matters
in
dispute to the Accounting Arbitrator, or as soon as practicable
thereafter, the Accounting Arbitrator shall make a final
determination,
binding on the parties to this Agreement, of the appropriate amount
of each
of
the line items in the Closing Net Current Liabilities Schedule as
to
which Sellers and Purchaser disagree as set out in the Dispute
Notice. Such
determination shall be in accordance with the standards set forth
in
Schedule 3.5 and shall be final and binding with respect to any
issue
relating to the Purchaser's compliance with the standards set forth
in
Schedule 3.5 in preparing the Closing Net Current Liabilities
Schedule.
With
respect to each disputed line item, such determination, if not
in
accordance with the position of either Seller or Purchaser, shall
not be in
excess of the higher, nor less than the lower, of the amounts
advocated by
Seller in the Dispute Notice or Purchaser in the Closing Net
Current
Liabilities Schedule with respect to such disputed line item.
Any
determination or award of the Accounting Arbitrator pursuant to
this
Section 3.6 may be entered and enforced in any court of
competent
jurisdiction. The Closing Net Current Liabilities Schedule and
the
determination of the net current liabilities, as determined either
through
agreement of the parties or through the action of the Accounting
Arbitrator
pursuant to this Section 3.6, shall be final, binding and
conclusive on the
parties hereto, and shall be referred to as the "Final Closing Net
Current
Liabilities Schedule" and the "Final Net Current Liabilities",
respectively.
(e) Within five (5) business days after the Final Closing Net
Current
Liabilities Schedule has been determined: (i) if the Final Net
Current
Liabilities is less than the Estimated Net Current Liabilities
proposed by
Seller, Purchaser shall pay to Seller an amount of cash equal to
the
absolute value of such difference, plus simple interest thereon
from the
Closing Date to the payment date at the annual rate of six percent
(6%),
and
(ii) if the Final Net Current Liabilities is greater than the
Estimated
Net
Current Liabilities proposed by Seller, Seller shall pay to
Purchaser
an
amount of cash equal to the absolute value of such difference,
plus
simple interest thereon from the Closing Date to the payment date
at the
annual rate of six percent (6%). In the event the parties submit
any
unresolved objections to the Accounting Arbitrator for resolution
as
provided in this Section 3.6, Purchaser, on the one hand, and
Seller, on
the
other hand, will each be obligated to pay fifty percent (50%) of
the
fees
and expenses of the Accounting Arbitrator; provided, however, that
if
the
Accounting Arbitrator's final determination of the Final Net
Current
Liabilities is less than the Closing Net Current Liabilities by
more than
ten
percent (10%), or exceeds the Estimated Net Current Liabilities by
more
than
ten percent (10%), the party whose determination of net current
liabilities so varied by more than ten percent (10%) from that of
the
Accounting Arbitrator shall bear one hundred percent (100%) of
the
Accounting Arbitrator's fees and expenses (provided that if both
parties
determinations of net current liabilities so vary by more than ten
percent
(10%), this provision shall be inapplicable).
(f) Purchaser agrees that, following the Closing through the date
that
the
Final Closing Net Current Liabilities Schedule becomes final
and
binding, it will not take any actions with respect to any
accounting books,
records, policies or procedures on which the Closing Net
Current
Liabilities Schedule is to be based that would impede or delay
the
determination of the Final Net Current Liabilities and the Final
Closing
Net
Current Liabilities Schedule in the manner and utilizing the
methods
required by this Agreement.
3.7
Estimated Indebtedness Repayment. Seller will, in good faith,
prepare
or cause to be prepared and delivered to Purchaser no later than
two business
days prior to the Closing Date, a statement with reasonable detail
setting forth
the amount of indebtedness which will be repaid on the Closing
Date, together
with all pay-off letters and Lien release documents related thereto
in substance
reasonably satisfactory to Purchaser and its counsel.
3.8
Allocation of Purchase Price. The Purchase Price shall be
allocated
among the Purchased Assets in the manner required by Section 1060
of the Code
(as herein defined) and in a manner mutually agreed upon by the
parties within
30 after the Closing Date. Notwithstanding the foregoing, nothing
in this
Agreement shall be construed to mean that a party hereto or other
person must:
(a) use, for any one or more purposes, any price or other
allocation
set
forth or provided for in this Agreement if such party or person
reasonably believes or reasonably is advised that such use is not
in
accordance with law; or
(b) make or file, or cooperate in the making or filing of, any
return
or
report to any governmental authority in any manner that such party
or
person reasonably believes or is reasonably advised is not in
accordance
with
law.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser make the representations and warranties to
Seller
which are set forth in this Article IV. All such representations
and warranties
shall survive the Closing (and none shall merge into any instrument
of
conveyance). Parent and Purchaser represent and warrant to Seller
that:
4.1
Organization. Parent and Purchaser are corporations duly
organized,
existing and in good standing, under the laws of the State of
Delaware.
4.2
Authority. Parent and Purchaser have full corporate power and
authority
to enter into and perform (a) this Agreement and (b) all documents
and
instruments to be executed by Parent and Purchaser pursuant to this
Agreement
(collectively, "Purchaser's Ancillary Documents"). The execution,
delivery and
performance of this Agreement and the Purchaser's Ancillary
Documents by Parent
and Purchaser and the consummation by Parent and Purchaser of the
transactions
contemplated by this Agreement have been duly authorized by all
necessary
corporate action of Parent and Purchaser, and no other board of
directors,
shareholder or other corporate proceeding by or on behalf of Parent
or Purchaser
is necessary to authorize the execution, delivery or performance of
this
Agreement or the Purchaser's Ancillary Documents or the
consummation of the
transactions contemplated by this Agreement. This Agreement
constitutes, and the
Purchaser's Ancillary Documents when executed and delivered will
constitute, the
valid and legally binding obligation of Parent and Purchaser (to
the extent
signatory thereto), enforceable against Parent and Purchaser in
accordance with
their terms, except as enforceability may be limited by bankruptcy,
insolvency,
reorganization, moratorium, arrangement of other similar laws, from
time to time
in effect.
4.3
Governmental Consents. No consent, authorization, order or approval
of,
or filing or registration with, any governmental authority is
required for the
execution and delivery by Parent or Purchaser of this Agreement and
Purchaser's
Ancillary Documents, and the consummation by Parent or Purchaser of
the
transactions contemplated by this Agreement and Purchaser's
Ancillary Documents.
4.4
Conflicts. Neither the execution and delivery of this Agreement
and
Purchaser's Ancillary Documents by Parent and Purchaser, nor the
consummation by
Parent and Purchaser of the transactions contemplated hereby, will
conflict with
or result in a breach of any of the terms, conditions or provisions
of (i)
Parent's or Purchaser's Certificate of Incorporation or By-laws,
(ii) any
statute or administrative regulation, or of any order, writ,
injunction,
judgment or decree of any court or governmental authority or of any
arbitration
award or (iii) any material contract, agreement, indenture,
mortgage, debenture,
note or other instrument to which Parent or Purchaser is a party,
except in the
case of clauses (ii) and (iii) for such conflict that would not be
reasonably
expected to have a material adverse effect on the ability of Parent
or Purchaser
to consummate the transactions contemplated by this Agreement.
4.5
Defaults. Purchaser is not a party to any unexpired, undischarged
or
unsatisfied written or oral contract, agreement, indenture,
mortgage, debenture,
note or other instrument under the terms of which performance by
Purchaser
according to the terms of this Agreement will be a default or an
event of
acceleration, or grounds for termination, or whereby timely
performance by
Purchaser according to the terms of this Agreement may be
prohibited, prevented
or delayed.
4.6
Broker's Fees. Neither Parent nor Purchaser has utilized, directly
or
indirectly, the services of any person or entity who is entitled to
a broker's
commission, finder's fee, investment banker's fee or similar
payment from Parent
or Purchaser for arranging the transactions contemplated hereby or
introducing
the parties to each other.
4.7
Authorization of Issuance of Parent Common Stock. The Parent's
common
stock to be issued hereunder, when issued and delivered in
accordance with the
terms of this Agreement, will be duly and validly issued, fully
paid and
non-assessable, free and clear of all Liens, except for such Liens
as may have
been created by Seller or restrictions on transfer under this
Agreement or under
applicable federal and state securities laws. All Parent's common
stock to be
issued upon issuance will have the rights, privileges and
preferences set forth
in Parent's Certificate of Incorporation and Bylaws for such class
of shares.
The Parent's common stock to be issued hereunder will be issued
pursuant to
exemptions from applicable federal and state securities laws.
4.8
SEC Filings; Financial Statements. Parent has filed with the
Securities
and Exchange Commission (i) its Annual Report to Stockholders and
Form 10-K for
the fiscal year ended December 31, 2004, (ii) its Quarterly Reports
on Form 10-Q
for the periods ended March 31, 2005, June 30, 2005 and September
20, 2005,
(iii) its Proxy Statement for the Annual Meeting of Stockholders
held on June
13, 2005, (iv) all reports on Form 8-K required to be filed by it
since December
31, 2004, and (v) all amendments or supplements to all such reports
required to
be filed by it with the Securities and Exchange Commission
(collectively, the "
SEC Reports"). The SEC Reports did not at the time they were filed
(or if
amended or superseded by a filing on or prior to the date hereof,
then on the
date of such filing) contain any untrue statement of a material
fact or omit to
state a material fact necessary in order to make the statements
therein, in the
light of the circumstances under which they were made, not
misleading. The
Purchaser is a newly organized entity and does not have any
financial statements
or results of operations.
4.9
Survival. Notwithstanding anything to the contrary in this
Agreement,
the representations and warranties made in this Article IV shall
survive until
the 15 month anniversary of the Closing.
4.10
Disclaimer of Additional Representations and Warranties. Except
as
expressly set forth in this Article IV, neither Parent nor
Purchaser makes any
representations or warranties, express or implied.
ARTICLE V
SELLER'S REPRESENTATIONS AND WARRANTIES
The
Seller makes the representations and warranties to Purchaser which
are
set forth in this Article V. All such representations and
warranties shall
survive the Closing (and none shall merge into any instrument of
conveyance).
All representations and warranties of Seller are made subject to
the exceptions
which are noted in the corresponding schedule delivered by Seller
to Purchaser
concurrently herewith. Any disclosure set forth on any particular
schedule shall
be deemed disclosed in reference to all applicable schedules.
Seller represents
and warrants to Purchaser that, except as set forth in the
corresponding
schedule:
5.1
Organization; Authority to Conduct Business. Seller is a
corporation
duly organized, existing and in good standing, under the laws the
State of
Delaware. Seller has all necessary corporate power and authority to
conduct the
Business as the Business is now being conducted. Seller is duly
qualified or
licensed to do business as a foreign corporation and is in good
standing as a
foreign corporation in the states listed on Schedule 5.1, which
represent each
jurisdiction in which the failure to become qualified or licensed
would have a
Material Adverse Effect.
5.2
Authority. Seller has full corporate power and authority to enter
into
and perform (x) this Agreement and (y) all documents and
instruments to be
executed by Seller pursuant to this Agreement (collectively,
"Seller's Ancillary
Documents"). The execution, delivery and performance of this
Agreement and the
Seller's Ancillary Documents by Seller and the consummation by
Seller of the
transactions contemplated by this Agreement have been duly
authorized by all
necessary corporate action of Seller, and no other board of
directors,
shareholder or other corporate proceeding by or on behalf of Seller
is necessary
to authorize the execution, delivery or performance of this
Agreement or the
Seller's Ancillary Documents or the consummation of the
transactions
contemplated by this Agreement. This Agreement constitutes, and the
Seller's
Ancillary Documents when executed and delivered will constitute,
the valid and
legally binding obligation of Seller, enforceable against Seller in
accordance
with their terms, except as enforceability may be limited by
bankruptcy,
insolvency, reorganization, moratorium, arrangement of other
similar laws, from
time to time in effect.
5.3
Governmental Consents. No consent, authorization, order or approval
of,
or filing or registration with, any governmental authority is
required for the
execution and delivery of this Agreement and Seller's Ancillary
Documents and
the consummation by Seller of the transaction contemplated by this
Agreement and
Seller's Ancillary Documents.
5.4
Conflicts. Neither the execution and delivery of this Agreement
and
Seller's Ancillary Documents by Seller, nor the consummation by
Seller of the
transaction contemplated hereby, will conflict with or result in a
breach of any
of the terms, conditions or provisions of (i) Seller's Certificate
of
Incorporation or By-laws, (ii) any statute or administrative
regulation, or of
any order, writ, injunction, judgment or decree of any court or any
governmental
authority or of any arbitration award, or (iii) any contract,
agreement,
indenture, mortgage, debenture, note or other instrument to which
Seller is a
party and which constitute part of the Purchased Assets or Assumed
Liabilities,
except in the case of clauses (ii) and (iii) for such conflict that
would not be
reasonably expected to have a Material Adverse Effect on the
ability of Seller
to consummate the transactions contemplated by this Agreement.
5.5
Subsidiaries. Seller has no subsidiaries.
<PAGE>
5.6
Financial Information.
(a) Copies of the balance sheet, statements of income, retained
earnings and cash flows, and notes to financial statements
(together with
any
supplementary information thereto) of the Business, as of and for
the
year
ended December 31, 2004 are contained in Schedule 5.6(a). Such
financial statements are referred to herein collectively as the
"Financial
Statements". The Financial Statements present fairly, in all
material
respects, the financial position of the Business as of the date
thereof,
and
the results of operations and cash flows of the Business for the
period
covered by said statements, in accordance with U.S. generally
accepted
accounting principles ("GAAP"), consistently applied, except as
disclosed
therein.
(b) Copies of the balance sheet and statement of income of the
Business as of and for the eleven-month period ended November 30,
2005, are
contained in Schedule 5.5(b). Such financial statements are herein
referred
to
as the "Interim Financial Statements." The Interim Financial
Statements
present fairly, in all material respects, the financial position of
the
Business as of the date thereof, and the results of operations of
the
Business for the period covered by said statements, in accordance
with
GAAP, consistently applied, except (i) as disclosed therein, (ii)
for
normal year-end adjustments and (iii) for the omission of
footnote
disclosures required by GAAP.
(c) To the actual knowledge of Seller's CEO and CFO, Seller has
no
material indebtedness, liability or obligation of any nature,
whether
absolute, accrued, contingent or otherwise, related to or arising
from the
operation of the Business or other ownership, possession or use of
its
Purchased Assets, except for the items enumerated in the Final
Closing Net
Current Liabilities Schedule, future performance obligations under
the
contracts and agreements listed on Schedule 5.10(a) and
Sections
2.3(a)-(e).
5.7
Liens. Seller has good title to, and the corporate power to sell,
the
Purchased Assets, free and clear of any liens, claims, encumbrances
and security
interests ("Liens"), except for the following liens (collectively,
"Permitted
Liens"): (i) those set forth on Schedule 5.7 hereto; (ii) statutory
liens for
Taxes not yet due, (iii) statutory liens of landlords, liens of
carriers,
warehousemen, mechanics and materialmen incurred in the ordinary
course of
business for sums not yet due; (iv) liens incurred or deposits made
in the
ordinary course of business in connection with workers'
compensation,
unemployment insurance and other types of social security or to
secure the
performance of tenders, statutory obligations, surety and appeal
bonds, bids,
leases, government contracts, performance and return of money bonds
and similar
obligations; and (v) minor irregularities of title which do not in
the aggregate
materially detract from the value or use of the Purchased Assets.
The foregoing
representation and warranty shall not apply to the Leased Premises.
Subject to
Section 9.8, upon the consummation of the Closing, good title to
the Assets will
vest in Purchaser, free and clear of any and all Liens, other than
Permitted
Liens, and without incurring any penalty or other adverse
consequences. The
Purchased Assets constitute all the assets necessary to allow
Purchaser to
operate the Business, as currently conducted, except for Excluded
Assets and
except for assets the absence of which would not have a Material
Adverse Effect
on the Business.
<PAGE>
5.8
Taxes.
(a) For purposes of this Agreement, the term "Taxes" means all
Federal, state, local, foreign and other income, sales, use, ad
valorem,
transfer or other taxes, fees, assessments or charges of any kind,
together
with
any interest and any penalties with respect thereto, and the
term
"Tax" means any one of the foregoing Taxes; the term "Code" means
the
Internal Revenue Code of 1986, as amended (all citations to the
Code, or to
the
Treasury Regulations promulgated thereunder, shall include any
amendments or any substitute or successor provisions thereto).
(b) There have been filed on a timely basis all returns required to
be
filed by Seller on or prior to the date hereof pertaining to Taxes
in each
case
where the failure to file any such return would have a Material
Adverse Effect on the Business subsequent to Closing. All such Tax
returns
were
when filed, and continue to be, correct and complete in all
material
respects. All Taxes owed by Seller (whether or not shown on any Tax
return)
with
respect to the Business have been paid. No extension of time
within
which to file any such return has been requested or granted. To
Company's
knowledge, except as set forth on Schedule 5.8(b), no claim has
ever been
made
in a jurisdiction in which Seller does not file any Tax return that
it
is
or may be subject to taxation in that jurisdiction. There are no
liens
with
respect to Taxes on any of the Purchased Assets, other than
Permitted
Liens.
(c) Seller has withheld or collected and paid all Taxes required
to
have
been withheld or collected and paid in connection with amounts paid
or
owing to any employee of or consultant to the Business and for
which
Purchaser could be held liable.
(d) With respect to all taxable periods or portions of periods
ending
on
or before the Closing, all applicable Tax laws have been complied
with,
and
all such amounts required to be paid by Seller to taxing
authorities on
or
before the date hereof have-been paid, in each case where the
failure to
so
comply or to so pay such amounts would have a Material Adverse
Effect on
the
Business subsequent to Closing.
(e) Since January 1, 2004, Seller (i) has never been a member of
an
affiliated group (within the meaning of Section 1504 of the Code,
or any
similar group as defined for state, local or foreign tax purposes)
filing a
consolidated federal (or combined or unitary state, local or
foreign)
income Tax return (other than a group of which Seller was the
common
parent) or (ii) has no liability for the taxes of any person or
entity
(other than Seller) under Section 1.1502 6 (or any similar
provision of
state, local or foreign law), as a transferee or successor, by
contract, or
otherwise.
(f) To Seller's knowledge, there is no dispute or claim
concerning
Seller in respect of Taxes of the Business that has been either
claimed or
raised by any authority in writing. Neither Seller nor any
Selling
Subsidiary has waived any statute of limitations with respect to
Taxes of
the
Business or agreed to any extension of time with respect to such a
Tax
assessment or deficiency.
(g) None of the Assumed Liabilities is an obligation to make a
payment
that
would not be deductible under Section 280G of the Code.
5.9
Material Adverse Change.
(a) Since November 30, 2005 (date of the Interim Financial
Statements), Seller has operated the Business in the ordinary
course as
consistent with past practices and has not, with respect to the
Business:
(i) sold or transferred any material portion of its assets or
property, except
for cash applied in payment of Seller's liabilities
in the usual and ordinary course of business;
(ii) suffered any change to the Business, including any
material
damage, destruction or loss, whether or not insured, affecting
the
Business, or to the Purchased Assets, which would be reasonably
likely
to have a Material Adverse Effect (as defined herein) on the
Business
(other than changes affecting the Business' industry
generally);
(iii) failed to maintain in full force and effect adequate
insurance coverage for destruction, damage to, or loss of any of
the
material Purchased Assets;
(iv) disposed of or permitted to lapse any of its Intellectual
Property (as defined herein) or any license, permit or
authorization
to use any Intellectual Property;
(v) without limitation by the enumeration of any of the
foregoing, entered into any transaction in excess of $50,000
other
than in the usual and ordinary course of business (the
foregoing
representation and warranty shall not be deemed to be breached
by
virtue of the entry by Seller into this Agreement or its
consummation
of the transaction contemplated hereby); or
(vi) entered into any agreement or understanding legally
obligating it to take any of the actions described above in
this
Section 5.9.
For
purposes of this Agreement, "Material Adverse Effect" means a
material
adverse effect on the business or financial condition of the
Business or
the
Purchased Assets, taken as a whole.
5.10
Contracts.
(a) Except as set forth on Schedule 5.10(a) hereto, Seller is not
a
party to, or bound by, or the issuer, beneficiary or recipient of,
any
material undischarged oral or written:
(i) contract for the employment for any period of time
whatsoever, or in regard to the employment, or restricting the
employment, of any employee of Seller who is employed in the
conduct
of the Business;
(ii) consulting agreement pertaining to the conduct of the
Business;
(iii) collective
bargaining agreement covering employees
employed-in the conduct of the Business;
(iv) plan or contract or arrangement providing for bonuses,
options, deferred compensation, retirement payments, profit
sharing,
medical and dental benefits or the like covering employees employed
in
the conduct of the Business;
(v) contract or agreement restricting in any manner the
Business'
right to compete with any other person or entity, restricting
the
Business right to sell to or purchase from any other person or
to
employ any person, or restricting the right of any other party
to
compete with the Business or the ability of such person or entity
to
employ any of Seller's employees employed in the conduct of the
Business;
(vi) contract between Seller and any of its affiliates with
respect to the purchase of goods or the performance of services
relating
to the Business;
(vii) contract of agency, representation, distribution, or
franchise relating to the Business which cannot be cancelled by
Seller
without payment or penalty upon notice of sixty (60) days or
less;
(viii) guaranty, performance, bid or completion bond, or surety
or indemnification agreement with respect to the Business;
(ix) lease or sublease with respect to the Business, either as
lessee or sublessee, lessor or sublessor, of real or personal
property
or intangibles to be assigned to Purchaser pursuant to this
Agreement,
where the lease or sublease provides for an annual rent in excess
of
$50,000 and has an unexpired term as of the Closing Date in excess
of
one year;
(x) any other contract related to the Business which is to be
assigned to Purchaser under this Agreement and which provides for
the
receipt or expenditure by Purchaser after such assignment of more
than
$100,000, except contracts for the purchase or sale of goods or
the
rendering of services in the ordinary course of business.
All
contracts, leases, subleases and other instruments referred to in
this
Section 5.10(a) and constituting Purchased Assets are in full force
and
effect and binding upon the parties thereto. No default by Seller
has
occurred thereunder and, to Seller's knowledge, no default by the
other
contracting parties has occurred thereunder, which default would
have a
Material Adverse Effect on the Business. Schedule 5.10(a) indicates
those
contracts, leases, subleases and other agreements which require
consent in
connection with their assignment to Purchaser at the Closing.
(b) With the exception of provisions in contracts, leases,
licenses
and
other instruments which prohibit the assignment of Seller's
rights
thereunder without the consent of the other party thereto, Seller
is not a
party to, or bound by, any unexpired, undischarged or unsatisfied
written
contract, agreement, indenture, mortgage, debenture, note or
other
instrument related to the Business under the terms of which
performance by
Seller according to the terms of this Agreement will be a default
or an
event of acceleration, or grounds for termination, which
default,
acceleration or termination would be reasonably likely to have a
Material
Adverse Effect on the Business, or whereby timely performance by
Seller
according to the terms of this Agreement may be prohibited,
prevented or
delayed.
(c) To Seller's knowledge, it has delivered to Purchaser all
written
contracts and agreements relating to or arising out of the
Business.
5.11
Permits. Seller possesses all licenses, permits, registration
and
governmental approvals (the "Permits") (other than Environmental
Permits) which
are required in order for the Seller to conduct the Business as
presently
conducted, except where the failure to possess such Permits would
not be
reasonably expected to have a Material Adverse Effect on the
Business.
5.12
Employee Benefits; Employment Matters. With respect to employees
of
Seller employed in the conduct of the Business:
(a) Seller maintains, administers or contributes to only those
employee pension benefit plans (as defined in Section 3(2) of the
Employee
Retirement Income Security Act of 1974, as amended ("ERISA"),
whether or
not
excluded from coverage under specific Titles or Subtitles of ERISA)
for
the
benefit of employees of the Business which are described in
Schedule
5.12(a) (the "Pension Plans");
(b) Seller maintains, administers or contributes to only those
employee welfare benefit plans (as defined in Section 3(l) of
ERISA,
whether or not excluded from coverage under specific Titles or
Subtitles of
ERISA) for the benefit of employees of the Business which are
described in
Schedule 5.12(b) (the "Welfare Plans");
(c) neither Seller nor any affiliate of Seller as determined
under
Section 414 (b), (c), (m) or (o) of the Code (each, an "ERISA
Affiliate")
is
or ever has been a party or made contributions to any plan which
is
subject to Title IV of ERISA, Section 412 of the Code or Section
302 of
ERISA or any "multiemployer plan" as defined in Sections 3(37)
and
4001(a)(3) of ERISA or participated in any union-sponsored
multiemployer
welfare benefit fund maintained pursuant to any "employee welfare
benefit
plan" as defined in Section 3(1) of ERISA;
(d) all health and medical benefit coverage, and all death
benefit
coverage, under each Seller Benefit Plan is provided solely
through
insurance. Any continuation coverage provided under any Seller
Benefit Plan
in
accordance with the provisions of ERISA Sections 601 through 608 of
The
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended,
as set
forth in Section 4980B of the Code and Part 6 of Title I of
ERISA
("COBRA"), or Code Section 4980 B is paid for solely by Seller's
COBRA
qualified beneficiary;
(e) none of the Seller Benefit Plans have participated in, engaged
in
or
been a party to any transaction that is prohibited under Section
4975 of
the
Code or Section 406 of ERISA and not exempt under Section 4975 of
the
Code
or Section 408 of ERISA, respectively (a "Prohibited
Transaction"),
which could result in the imposition of a material liability upon
Seller or
any
ERISA Affiliate or for which Purchaser may become liable after
the
Closing. There have been no acts or omissions with respect to any
Seller
Benefit Plan by Seller or any ERISA Affiliate which have given rise
to or
may
give rise to any material fines, penalties or related charges for
which
Purchaser may become liable after the Closing. No litigation or
claim
(other than routine liability claims) is pending with respect to
any Seller
Benefit Plan;
(f) no officer, partner, director or employee of Seller or any
ERISA
Affiliate has committed a material breach of any responsibility
or
obligation imposed upon fiduciaries by Title I of ERISA or engaged
in any
Prohibited Transaction with respect to any Seller Benefit Plan;
(g) each Seller Benefit Plan has at all times been maintained in
all
material respects, by its terms and in operation, in accordance
with all
laws
(including Section 1862(b)(1) of the Social Security Act). Seller
and
its
ERISA Affiliates have made full and timely payment of all
amounts
required to be contributed under the terms of each Seller Benefit
Plan and
laws
or required to be paid as expenses under such Employee Benefit
Plan.
Neither Seller nor any ERISA Affiliate has or will have on the
Closing any
unsatisfied material liability, fine, penalty or tax with respect
to any
Seller Benefit Plan;
(h) Neither Seller nor any ERISA Affiliate has incurred any
liability
to
the Pension Benefit Guaranty Corporation ("PBGC") as a result of
the
voluntary or involuntary termination of any pension plan subject to
Title
IV
of ERISA; there is currently no active filing by Seller or any
ERISA
Affiliate with the PBGC (and no proceeding has been commenced by
the PBGC)
to
terminate any pension plan subject to Title IV of ERISA maintained
or
funded, in whole or in part, by Seller or any ERISA Affiliate; and
neither
Seller nor any ERISA
Affiliate has made a complete or partial withdrawal
from
a multiemployer plan, as such term is defined in Section
3(37)of
ERISA, resulting in withdrawal liability, as such term is defined
in
Section 4201 of ERISA (without regard to subsequent reduction or
waiver of
such
liability under either Section 4207 or 4208 of ERISA);
(i) there are no collective bargaining agreements with any
unions,
representatives or other organizations which affect any employees
of the
Business, and there is no material request for union representation
pending
or
to the best of Seller's knowledge, threatened against the
Business;
(j) Seller has not received notice of any industrial or other
such
dispute with any employees of the Business, any union, employee
representatives or other organization formed for a similar purpose
and no
such
dispute is existing, pending or, to Seller's knowledge,
threatened;
(k) there are no pending or, to Seller's knowledge, threatened
inquiries or investigations involving or relating to any employees
of the
Business by the Equal Opportunities Commission, the Commission for
Racial
Equity, the Health and Safety Executive or similar authorities;
(l) there is no pending or, to Seller's knowledge, threatened
in
writing lit
