Exhibit 10.77


 


ASSET
PURCHASE AGREEMENT


 


Dated
as of July 14, 2005


 


by and between


 


NAL Worldwide
LLC


 


and


 


North
American Van Lines, Inc.


 





















 


TABLE OF CONTENTS


 


 


	
  ARTICLE 1 – DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  ARTICLE 2 – PURCHASE AND SALE

  	
   

  
	
  2.1

  	
  Purchased
  Assets 

  	
   

  
	
  2.2

  	
  Excluded Assets

  	
   

  
	
  2.3

  	
  Limited Assumed Liabilities

  	
   

  
	
  2.4

  	
  Excluded
  Liabilities

  	
   

  
	
  2.5

  	
  Certain Consents to Assignment

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 3 – PURCHASE PRICE

  	
   

  
	
  3.1

  	
  Purchase Price

  	
   

  
	
  3.2

  	
  Allocation of Purchase Price

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 – CLOSING

  	
   

  
	
  4.1

  	
  Closing Date

  	
   

  
	
  4.2

  	
  Payment

  	
   

  
	
  4.3

  	
  Buyer’s Additional Closing Date Deliveries

  	
   

  
	
  4.4

  	
  Seller’s Closing Date Deliveries

  	
   

  
	
  4.5

  	
  Shipments
  in Process

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 5 – REPRESENTATIONS AND WARRANTIES OF SELLER

  	
   

  
	
  5.1

  	
  Organization

  	
   

  
	
  5.2

  	
  Authority

  	
   

  
	
  5.3

  	
  No Conflicts

  	
   

  
	
  5.4

  	
  Financial
  Statements

  	
   

  
	
  5.5

  	
  Taxes

  	
   

  
	
  5.6

  	
  Leased
  Real Property

  	
   

  
	
  5.7

  	
  Title
  to Property

  	
   

  
	
  5.8

  	
  Tangible Personal Property

  	
   

  
	
  5.9

  	
  Intellectual Property

  	
   

  
	
  5.10

  	
  Contracts

  	
   

  
	
  5.11

  	
  Employees Relations; Benefit Plans

  	
   

  
	
  5.12

  	
  Absence of Certain Changes

  	
   

  
	
  5.13

  	
  Environmental Matters

  	
   

  
	
  5.14

  	
  No Default, Violation or Litigation

  	
   

  
	
  5.15

  	
  Insurance Policies

  	
   

  
	
  5.16

  	
  Licenses and Permits

  	
   

  
	
  5.17

  	
  Interests in Clients, Etc.

  	
   

  
	
  5.18

  	
  Clients

  	
   

  
	
  5.19

  	
  Transactions with Affiliates

  	
   

  
	
  5.20

  	
  Software

  	
   

  
	
  5.21

  	
  Agent Commissions

  	
   

  
	
  5.22

  	
  Solvency
  of Seller

  	
   

  



 


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  5.23

  	
  Brokers

  	
   

  
	
  5.24

  	
  No Knowledge of Breach of Representations

  	
   

  
	
  5.25

  	
  No Other Representations or Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 – REPRESENTATIONS AND WARRANTIES OF BUYER

  	
   

  
	
  6.1

  	
  Organization

  	
   

  
	
  6.2

  	
  Authority

  	
   

  
	
  6.3

  	
  No Conflicts

  	
   

  
	
  6.4

  	
  Funding Commitment

  	
   

  
	
  6.5

  	
  Brokers

  	
   

  
	
  6.6

  	
  No Other Representations or Warranties

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 – ACTION PRIOR TO THE CLOSING DATE

  	
   

  
	
  7.1

  	
  Preserve Accuracy of Representations and Warranties

  	
   

  
	
  7.2

  	
  Consents of Third Parties; Governmental Approvals

  	
   

  
	
  7.3

  	
  Investigation by Buyer

  	
   

  
	
  7.4

  	
  Public Announcement

  	
   

  
	
  7.5

  	
  Operations Prior to the Closing Date

  	
   

  
	
  7.6

  	
  Employee Matters

  	
   

  
	
  7.7

  	
  Certain Restrictions

  	
   

  
	
  7.8

  	
  Bulk Transfers; Bulk Sales Laws

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 – ADDITIONAL AGREEMENTS

  	
   

  
	
  8.1

  	
  Taxes

  	
   

  
	
  8.2

  	
  Employees

  	
   

  
	
  8.3

  	
  Noncompete by Seller

  	
   

  
	
  8.4

  	
  Nonsoliciation by Seller

  	
   

  
	
  8.5

  	
  Nonsoliciation by Buyer

  	
   

  
	
  8.6

  	
  Enforcement of STI Non-Solicitation

  	
   

  
	
  8.7

  	
  As-Is Condition

  	
   

  
	
  8.8

  	
  Confidential Information

  	
   

  
	
  8.8

  	
  Discharge of Liabilities

  	
   

  
	
  8.9

  	
  Financial Statements

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 – CONDITIONS PRECEDENT TO
  OBLIGATIONS OF BUYER

  	
   

  
	
  9.1

  	
  Representations and Warranties

  	
   

  
	
  9.2

  	
  Performance

  	
   

  
	
  9.3

  	
  Officer’s Certificate

  	
   

  
	
  9.4

  	
  Orders and Laws

  	
   

  
	
  9.5

  	
  Regulatory Consents and Approvals

  	
   

  
	
  9.6

  	
  Third Party Consents

  	
   

  
	
  9.7

  	
  Deliveries

  	
   

  
	
  9.8

  	
  No Material Adverse Effect

  	
   

  
	
  9.9

  	
  Real Estate Matters

  	
   

  
	
  9.10

  	
  Loss of Client(s)

  	
   

  
	
  9.11

  	
  Employment Agreements

  	
   

  
	
  9.12

  	
  Key Employees

  	
   

  



 


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  9.13

  	
  Licenses

  	
   

  
	
  9.14

  	
  Transition Services Agreement

  	
   

  
	
  9.15

  	
  Service Bureau Agreement

  	
   

  
	
  9.16

  	
  Financial Statements

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 – CONDITIONS PRECEDENT TO
  OBLIGATIONS OF SELLER

  	
   

  
	
  10.1

  	
  Representations and Warranties

  	
   

  
	
  10.2

  	
  Performance

  	
   

  
	
  10.3

  	
  Officer’s Certificate

  	
   

  
	
  10.4

  	
  Orders and Laws

  	
   

  
	
  10.5

  	
  Regulatory Consents and Approvals

  	
   

  
	
  10.6

  	
  Deliveries

  	
   

  
	
  10.7

  	
  Real Estate Matters

  	
   

  
	
  10.8

  	
  Licenses

  	
   

  
	
  10.9

  	
  Transition Services Agreement

  	
   

  
	
  10.10

  	
  Service Bureau Agreement

  	
   

  
	
  10.11

  	
  No Material Adverse Effect on Buyer

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 11 – INDEMNIFICATION

  	
   

  
	
  11.1

  	
  Indemnification by Seller

  	
   

  
	
  11.2

  	
  Indemnification by Buyer

  	
   

  
	
  11.3

  	
  Indemnification Procedures

  	
   

  
	
  11.4

  	
  Environmental Response

  	
   

  
	
  11.5

  	
  Survival of Obligations

  	
   

  
	
  11.6

  	
  Exclusive Remedy

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 12 – TERMINATION

  	
   

  
	
  12.1

  	
  Termination

  	
   

  
	
  12.2

  	
  Notice of Termination

  	
   

  
	
  12.3

  	
  Effect of Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 13 – GENERAL PROVISIONS

  	
   

  
	
  13.1

  	
  Notices

  	
   

  
	
  13.2

  	
  Successors and Assigns

  	
   

  
	
  13.3

  	
  Access to Records after Closing

  	
   

  
	
  13.4

  	
  Entire Agreement; Amendments

  	
   

  
	
  13.5

  	
  Interpretation

  	
   

  
	
  13.6

  	
  Waivers

  	
   

  
	
  13.7

  	
  Partial Invalidity

  	
   

  
	
  13.8

  	
  Execution in Counterparts

  	
   

  
	
  13.9

  	
  Further Assurances

  	
   

  
	
  13.10

  	
  Governing Law

  	
   

  
	
  13.11

  	
  Waiver of Jury Trial

  	
   

  
	
  13.12

  	
  Payment of Expenses

  	
   

  
	
  13.13

  	
  No Strict Construction

  	
   

  
	
  13.14

  	
  Right to Set-off

  	
   

  



 


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EXHIBITS


 


	
  EXHIBIT A

  	
   

  	
  Purchased Assets

  
	
  EXHIBIT B

  	
   

  	
  Form of Assumption Agreement

  
	
  EXHIBIT C

  	
   

  	
  Form of Assignment and Bill of Sale

  
	
  EXHIBIT D

  	
   

  	
  Trademark License Agreement

  
	
  EXHIBIT E

  	
   

  	
  Major Terms of Real Property Subleases

  



 


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ASSET PURCHASE AGREEMENT


 


This ASSET
PURCHASE AGREEMENT (the “Agreement”) is dated as of July 14, 2005,
by and between NAL Worldwide LLC, a Delaware limited liability company (“Buyer”)
and North American Van Lines, Inc., a Delaware corporation (“Seller”).


 


RECITALS


 


1.                                       Seller
is engaged in, among other things, the Business (as defined in APPENDIX A); and


 


2.                                       Seller
desires to sell to Buyer and Buyer desires to purchase from Seller
substantially all of the assets, businesses and properties used in the
Business, and to assume certain specified liabilities in connection therewith,
all on the terms and subject to the conditions set forth herein.


 


In
consideration of the mutual covenants and agreements hereinafter set forth, it
is hereby agreed between Seller and Buyer as follows:


 


ARTICLE 1


 


DEFINITIONS


 


For purposes
of this Agreement, capitalized terms and variations thereof have the meanings specified
or referenced in APPENDIX A attached
hereto.


 


ARTICLE 2


 


PURCHASE AND SALE


 


2.1                                 Purchased
Assets.  Upon the terms and subject
to the conditions of this Agreement, at the Closing, Seller shall sell,
transfer, assign, convey and deliver to Buyer and Buyer shall purchase from
Seller, free and clear of all Encumbrances, except for Permitted Encumbrances,
the Business, including the operations, assets and properties currently owned
or used by Seller or any of its Affiliates solely or primarily in connection
with or related to the Business of every kind and description, wherever
located, whether real, personal or mixed, tangible or intangible, as the same
shall exist on the Closing Date, except for the Excluded Assets (herein
collectively referred to as the “Purchased Assets”).  The Purchased Assets, which shall not include
working capital required to operate the Business, shall include all Software
currently owned by Seller or any of its Affiliates and used solely or primarily
in connection with or related to the Business, including, without limitation,
the Software identified on EXHIBIT A.  The Purchased Assets shall also include the
following assets:


 


(a)                                  All
of the right, title and interest of Seller or its applicable Affiliate in, to
and under the Assigned Real Property Leases, including the right, title and
interest of


 





















 


such Person in and to the Leased Real Property leased pursuant thereto,
the improvements located on such Leased Real Property and all other licenses,
permits, deposits and other rights appurtenant or related thereto;


 


(b)                                 All
furniture, fixtures, equipment, machinery, vehicles, spare parts and supplies,
computers and related equipment, telephones and related equipment and all other
tangible personal property, office and other supplies, parts, packaging
materials and all other accessories related to any of the foregoing, as
identified on EXHIBIT A (“Tangible
Personal Property”);


 


(c)                                  All
rights as lessee or sublessee under leases or subleases of Tangible Personal
Property together with any options to purchase the underlying property, as
identified on EXHIBIT A  (“Tangible Personal Property Leases”);


 


(d)                                 All
rights under any Contracts identified on Schedule 5.10 or assumed
pursuant to EXHIBIT B;


 


(e)                                  All
Intellectual Property identified on EXHIBIT A;


 


(f)                                    All
files, documents, instruments, papers, books and records relating to the
business, operations, condition (financial or other) or results of operations
of the Business or the Purchased Assets, including financial statements, and
related work papers and letters from accountants, budgets, pricing guidelines,
ledgers, journals, Contracts, lists and records pertaining to customers,
computer files and programs, retrieval programs, operating data and plans
(Seller may redact those portions of any documents that contain information
about businesses of Seller or its Affiliates other than the Business);


 


(g)                                 All
personnel file records of the Transferred Employees;


 


(h)                                 A
copy of Seller’s policies, manuals and procedures or similar materials used
with respect to the Business, for the purpose of Buyer developing derivative
policies, manuals and procedures or similar materials for its own use after
Closing, for the use of which after Closing Seller shall have no liability
whatsoever;


 


(i)                                     The
trade names “nal Worldwide” and “nal Global,” which the Seller has informed
Buyer are currently unregistered, and any trademarks, trade names and service
marks containing either of the foregoing, all goodwill associated therewith,
and the nalworldwide.com and nalglobal.com domain names;


 


(j)                                     All
prepaid rents (other than under the Fort Wayne Lease) and all prepaid amounts
under the Tangible Personal Property Leases being transferred to Buyer; and


 


(k)                                  All
other assets, businesses and properties of Seller or any Affiliate to the
extent:  (i) primarily used in
connection with the Business or the Purchased Assets, or (ii) identified
on EXHIBIT A, including all goodwill
relating to the Business and the going concern value of the Business, except as
expressly set forth in Section 2.2 below.


 


2





















 


2.2                                 Excluded
Assets.  Notwithstanding the
provisions of Section 2.1, the Purchased Assets shall not include
the following items (collectively referred to herein as the “Excluded Assets”).  To the extent an asset relating to the
Business is not specifically identified on EXHIBIT A or in Section 2.1 above, such
asset shall be deemed an Excluded Asset.


 


(a)                                  All
trade names other than  “nal Worldwide”
and “nal Global,” including “North American,” “northAmerican”, “SIRVA,” and “SIRVA
Logistics,” and the words “Worldwide” and “Global” in any combination other
than in combination with “nal” and all translations, adaptations, or
derivations thereof, and any trademarks, trade names, service marks and symbols
denoting or connoting, any of the foregoing, and all goodwill associated
therewith;


 


(b)                                 All
cash and cash equivalents;


 


(c)                                  All
accounts receivable and all notes, bonds and other evidences of indebtedness of
and rights to receive payments of any kind, including all trade accounts
receivable, notes receivable from customers, vendor credits and all other
obligations of customers with respect to sales of goods or services (including
any rights with respect to any third party collection procedures) (“Accounts
Receivable”);


 


(d)                                 All
rights (including any right to indemnification), claims and recoveries arising
out of or relating to events occurring or existing as of or prior to the
Closing and relating to the periods prior to the Closing;


 


(e)                                  All
Benefit Plans of Seller and its Affiliates and all assets held by such Benefit
Plans; all Contracts for employment or consultation services for a specified or
unspecified term and any other employment-related contracts not listed on EXHIBIT A or as part of  Section 2.1; and all written or
unwritten representations, commitments, promises, communications or courses of
conduct creating an obligation to make payments or provide benefits to any
employee or former employee of the Business;


 


(f)                                    All
minute books and stock ownership records of Seller;


 


(g)                                 All
refunds of any Tax paid by Seller or its Affiliates to which Seller is entitled
based upon its Tax liability for the periods (or portion thereof) ending as of
or prior to the Closing Date pursuant to Section 8.1;


 


(h)                                 All
contracts of insurance and rights to insurance proceeds to the extent Seller is
responsible for the cost of the insured event or indemnifies Buyer with respect
to the cost of the insured event;


 


(i)                                     Except
as set forth in Section 2.1(j), all prepaid expenses for which
Buyer will not receive the benefit after the Closing, including insurance, rights to reimbursement of prepaid
insurance and security deposits;


 


(j)                                     All
documents prepared by Seller for the purpose of informing its agents, employees,
or management about the sale of the Business and the Purchased Assets;


 


3





















 


(k)                                  All
intercompany receivables payable to Seller by any of its Affiliates;


 


(l)                                     All
Real Property Leases, other than the Assigned Real Property Leases;


 


(m)                               All
leases and subleases of real and personal property related to the Business,
other than those identified on EXHIBIT A;
and


 


(n)                                 All
of Seller’s rights under this Agreement.


 


2.3                                 Limited
Assumed Liabilities.  On the Closing
Date, Buyer and Seller shall enter into the Assumption Agreement, substantially
in the form of EXHIBIT B,
pursuant to which Buyer shall assume and agree to discharge only the
following specific obligations and liabilities, to the extent such liabilities
and obligations relate exclusively or primarily to the Business, in accordance
with their respective terms and subject to the respective conditions thereof
(herein collectively referred to as the “Assumed Liabilities”):  all liabilities and obligations of Seller to
be paid or performed after the Closing (other than those arising or relating to
a breach of an agreement prior to the Closing Date) under:  (i) the Assigned Real Property Leases, (ii) the
Tangible Personal Property Leases, (iii) the other Contracts listed on Schedule 5.10,
(iv) the other Contracts entered into by Seller in the ordinary course of
the Business and not required by the terms of Section 5.10 to be
listed on Schedule 5.10, and (v) Contracts entered into by
Seller after the date hereof in the ordinary course of the Business consistent
with the terms of this Agreement and Seller’s past practice and custom;
provided the foregoing shall only be Assumed Liabilities to the extent the
foregoing Contracts or Assigned Real Property Leases are actually assigned to
Buyer.


 


2.4                                 Excluded
Liabilities.  Notwithstanding any
provision herein that may be construed to the contrary, except for the Assumed
Liabilities, Seller and its Affiliates shall remain solely responsible for and
Buyer shall not assume or be obligated in any way to pay, perform or otherwise
discharge any liability or obligation of Seller or any of its Affiliates or any
liability or obligation arising in respect of the Business or the Purchased
Assets, whether direct or indirect, known or unknown, absolute or contingent
(all liabilities and obligations other than the Assumed Liabilities are
referred to herein collectively as the “Excluded Liabilities”).    The Excluded Liabilities include without
limitation:


 


(a)                                  Any
liabilities or obligations related to any business of Seller or its Affiliates
other than the Business;


 


(b)                                 Any
liabilities or obligations related to any facility that is not used by the
Business on the Closing Date;


 


(c)                                  Any
liabilities or obligations arising from the employment or termination of any
current or former employees by Seller or its Affiliates, including the
termination of any employees of the Business not hired by Buyer;


 


(d)                                 Subject
to Section 8.1, any liabilities of Seller or its Affiliates for
Taxes and any Taxes arising from the transactions described herein;


 


4





















 


(e)                                  Any
intercompany payables or other liabilities or obligations of Seller to any of
its Affiliates;


 


(f)                                    Any
liabilities or obligations arising under or related to any Benefit Plan;


 


(g)                                 Any
liabilities and obligations, including any liabilities or obligations for wages
or benefits, to employees of Seller or its Affiliates for periods prior to the
Closing Date;


 


(h)                                 Any
costs or expenses incurred by Seller incident to its sale of the Purchased
Assets, including the negotiation and preparation of this Agreement and its
performance and compliance with the agreements and conditions contained herein;


 


(i)                                     Any
liabilities or obligations arising out of, in connection with or related to any
Excluded Asset;


 


(j)                                     Any
liabilities, costs or expenses arising from any Legal Proceedings against
Seller or any of its Affiliates, including any Legal Proceedings set forth on Schedule 5.14;


 


(k)                                  Any
liabilities or obligations relating to the period prior to the Closing Date,
with respect to an actual or alleged breach of contract or warranty, tort,
infringement, claim or violation of any Requirement of Law, strict liability or
otherwise;


 


(l)                                     Any
liabilities or obligations relating to, or arising out of, directly or
indirectly, the operation of the Business or Seller’s ownership, control or use
of the Purchased Assets prior to the Closing Date including, but not limited
to, any liability to any current, past or future employee of Sellers based on
any event or events occurring prior to the Closing (whether, in any such case
outlined above, (i) the liability arises prior to or following the Closing
or (ii) the liability is assessed against Seller or its Affiliates or
Buyer or its Affiliates); and


 


(m)                               Any
liabilities or obligations (contingent or otherwise and including liability for
response costs, personal injury, property damage or natural resource damage)
arising under any Environmental Laws relating to the handling, treatment,
storage, disposal, Release or threatened Release of Contaminants in, under, on
or from the Leased Real Property, the Tangible Personal Property or any past or
current property or facility of Seller, its Affiliates or any predecessor of
Seller or its Affiliates, or any offsite waste treatment, storage, or disposal
facility used by any of them, except for any such obligations or liabilities to
the extent caused by the operation of the Business by Buyer after the Closing
Date.


 


2.5                                 Certain
Consents to Assignment.  To the
extent that any Contract to be assigned to Buyer (including without limitation,
the Assigned Real Property Leases) is not assignable without the consent of a
third party, this Agreement shall not constitute an assignment or an attempted
assignment thereof if such assignment or attempted assignment would constitute
a breach thereof.  Seller and Buyer shall
use all reasonable efforts to obtain the consent of such other party to the
assignment to Buyer of any such Contract. 
If any such consent shall not be


 


5





















 


obtained, Seller shall cooperate with Buyer in any reasonable
arrangement designed to provide for Buyer the benefits intended to be assigned
to Buyer under the relevant Contract, including enforcement for the benefit of
Buyer of any and all rights of Seller against the other party thereto arising
out of the breach or cancellation thereof by such other party or otherwise, for
a period up to twelve months following the Closing, provided that Buyer shall
undertake to pay or satisfy (i) the corresponding liabilities for the
enjoyment of such benefit if and to the extent that Buyer would have been
responsible therefor if such consent, waiver or approval had been obtained, (ii) for
a period up to six months following the Closing, all reasonable external,
out-of-pocket expenses incurred by Seller in so obtaining or providing such
benefits to Buyer and (iii) for any period following the initial six month
period, all mutually agreeable reasonable expenses, whether internal or
external out-of-pocket, incurred by Seller in so obtaining or providing such
benefits to Buyer.


 


ARTICLE 3


 


PURCHASE PRICE


 


3.1                                 Purchase
Price.  The cash purchase price to be
paid to or on behalf of Seller at the Closing (the “Purchase Price”)
shall be an amount equal to (i) the assumption, payment, performance and
discharge by Buyer, when and as due, of the Assumed Liabilities, plus (ii) the
sum of $12,900,000.  The Purchase Price
shall be payable in cash in two installments. 
The first installment of $11,900,000 shall be payable at the Closing as
provided in Section 4.2.  The
second installment of $1,000,000 shall be payable upon completion by Seller of
all services it is required to provide to Buyer under the Service Bureau
Agreement.


 


3.2                                 Allocation
of Purchase Price.  Within ninety
days after the Closing, Buyer shall prepare and deliver to Seller a statement
(the “Allocation Statement”) allocating the Purchase Price among the
Purchased Assets and the noncompete agreement set forth in Section 8.3
in accordance with Section 1060 of the Code and the applicable Treasury
Regulations.  If within thirty days after
delivery of the Allocation Statement, Seller notifies Buyer in writing of an
objection to the Allocation Statement, Buyer and Seller shall use their
commercially reasonable efforts to resolve such dispute within twenty
days.  If Buyer and Seller are unable to
resolve such dispute during such twenty-day period, Buyer and Seller shall
jointly select a nationally recognized independent accounting firm to resolve
such dispute.  Such accounting firm shall
be requested to resolve such dispute and issue its written report to Buyer and
Seller within thirty days after its engagement. 
One-half of the fees of such accounting firm shall be borne by Buyer,
and one-half of such fees shall be borne Seller.  Seller and Buyer each agree to prepare and
file on a timely basis Internal Revenue Service Form 8594 setting forth an
allocation of the Purchase Price, pursuant to Section 1060 of the Code, in
a manner consistent with the Allocation Statement, and agree to act in
accordance with the Allocation Statement in the preparation of financial
statements and filing of all Tax returns and in the course of any Tax audit,
Tax review or Tax litigation relating thereto. 
Neither Buyer nor Seller will assert that the allocation set forth in
the Allocation Statement was not separately bargained for at arm’s length and
in good faith.  Not later than ten days
prior to the filing of their respective Form 8594 relating to this
transaction, each party shall deliver to the other party a copy of its Form 8594.


 


6





















 


ARTICLE 4


 


CLOSING


 


4.1                                 Closing
Date.  The consummation of the
transactions (the “Closing”) shall take place at the offices of Skadden,
Arps, Slate, Meagher & Flom LLP, 333 West Wacker Drive, Chicago,
Illinois as promptly as is practicable on the Business Day on which the
conditions set forth in Articles 9 and 10 hereof have been satisfied or waived,
or at such other time and place as may be agreed upon by Buyer and Seller.  The date on which the Closing occurs is
called the “Closing Date”.  It is
understood and agreed that Seller will notify Buyer at least three Business
Days prior to the Closing that the Closing is likely to occur, specifying the
proposed closing date.  Notwithstanding
the foregoing, in the event that the parties agree to close on July 31,
2005, the first installment of the Purchase Price shall be paid on August 1,
2005, and, upon payment of such installment, the Closing and the Closing Date
shall be deemed to have occurred on July 31, 2005 at 11:59 p.m.


 


4.2                                 Payment.  Subject to fulfillment or waiver of the
conditions set forth in ARTICLE 9, 
Buyer shall pay Seller the first installment of the Purchase Price by
wire transfer of immediately available funds to the account or accounts
designated in writing by Seller on the Closing Date or as otherwise specified
in Section 4.1 above.


 


4.3                                 Buyer’s
Additional Closing Date Deliveries. 
Subject to fulfillment or waiver of the conditions set forth in ARTICLE 9,
at Closing Buyer shall also deliver to Seller all of the following:


 


(a)                                  A
certificate of the secretary (or other similar official) of Buyer certifying,
as complete and accurate as of the Closing Date, the Organizational Documents
of Buyer and certifying and attaching the resolutions of the board of directors
and stockholders (or other relevant Persons) of Buyer approving the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby and certifying to the incumbency and signatures of the
persons authorized by Buyer to execute this Agreement and each Buyer Ancillary
Document or instrument executed by Buyer in connection with this Agreement;


 


(b)                                 A
certificate of good standing of Buyer issued as of a recent date by the
Secretary of State of the State of Delaware;


 


(c)                                  The
Assumption Agreement, substantially in the form of EXHIBIT B,
duly executed by Buyer;


 


(d)                                 A
transitional services agreement (the “Transitional Services Agreement”),
in a form reasonably acceptable to both parties, duly executed by Buyer;


 


(e)                                  The
Real Property Lease Assignments, duly executed by Buyer;


 


(f)                                    The
Real Property Subleases and the Fort Wayne Lease, duly executed by Buyer;


 


7





















 


(g)                                 A software license assignment in favor
of  Buyer to assign the license of AMS,
PTS and CDS (the “Software License Assignment”) to Buyer, in a
form reasonably acceptable to both parties, duly executed by Buyer;


 


(h)                                 A perpetual, non-exclusive, royalty free
license in favor of Buyer to use and modify certain software owned by Seller
(the “License”), in a form reasonably acceptable to both parties,
duly executed by Buyer;


 


(i)                                     A trademark license agreement (the “Trademark
License”), substantially in the form of EXHIBIT D, duly executed by Buyer;


 


(j)                                     A service bureau agreement (the “Service
Bureau Agreement”) for outsourcing of information technology services, in a
form reasonably acceptable to both parties;


 


(k)                                  A
certificate of the secretary (or other similar official) executed on behalf of
Buyer as to the accuracy of Buyer’s representations and warranties as of the
date of this Agreement and as of the Closing, in accordance with Section 10.3
and as to Buyer’s compliance with and performance of its covenants and
obligations to be performed or complied with at or before the Closing in
accordance with Section 10.3; and


 


(l)                                     Such
other assumption agreements and instruments as Seller may reasonably request or
as may be otherwise necessary to evidence and effect the assumption by Buyer of
the Assumed Liabilities.


 


In addition to
the above deliveries, Buyer shall take all steps and actions as Seller may
reasonably request or as may otherwise be necessary to evidence Buyer’s
assumption of the Assumed Liabilities.


 


4.4                                 Seller’s
Closing Date Deliveries.  Subject to
fulfillment or waiver of the conditions set forth in ARTICLE 10, at
Closing Seller shall deliver to Buyer all of the following:


 


(a)                                  A
certificate of the Secretary of Seller certifying, as complete and accurate as
of the Closing, the Organizational Documents of Seller and certifying and
attaching the resolutions of the board of directors, or a duly authorized
committee thereof, of Seller approving the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby and
certifying to the incumbency and signatures of the persons authorized by Seller
to execute this Agreement and each Seller Ancillary Document or instrument
executed by Seller in connection with this Agreement;


 


(b)                                 Certificates
of good standing of Seller:


 


(i)                                     issued
as of a recent date by the Secretary of State of the State of Delaware; and


 


(ii)                                  issued
as of a recent date by the Secretary of State of the State of Indiana;


 


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(c)                                  An
assignment and bill of sale (the “Assignment and Bill of Sale”),
substantially in the form of EXHIBIT C,
to Buyer for all of the Purchased Assets that are Tangible Personal Property,
duly executed by Seller;


 


(d)                                 The
Assumption Agreement, substantially in the form of EXHIBIT B,
duly executed by Seller;


 


(e)                                  Certificates
of title or origin (or like documents) with respect to any vehicles or other
equipment included in the Purchased Assets for which a certificate of title or
origin is required in order to transfer title;


 


(f)                                    All
consents, waivers or approvals obtained by Seller with respect to the Purchased
Assets or the consummation of the transactions contemplated by this Agreement;


 


(g)                                 Assignments
to Buyer of any registered or applied for patents, trademarks, service marks,
domain names and copyrights included in the Purchased Assets, duly executed by
Seller in a form and substance reasonably satisfactory to Buyer;


 


(h)                                 The
Transitional Services Agreement, duly executed by Seller;


 


(i)                                     The
Real Property Lease Assignments, duly executed by Seller or one of its
Affiliates, as appropriate;


 


(j)                                     The
Real Property Subleases and the Fort Wayne Lease, duly executed by Seller or
one of its Affiliates, as appropriate;


 


(k)                                  The
Software License Assignment, duly executed by Seller;


 


(l)                                     The
License, duly executed by Seller;


 


(m)                               The
Trademark License, substantially in the form of EXHIBIT D,
duly executed by Seller;


 


(n)                                 A
certification of non-foreign status of Seller, reasonably satisfactory to
Buyer, which complies with the requirements of section 1445 of the Code
and the applicable Treasury Regulations;


 


(o)                                 The
Landlord Documents;


 


(p)                                 The
Service Bureau Agreement, duly executed by Seller;


 


(q)                                 The Financial Statements required to be
delivered at Closing pursuant to Section 5.4; and


 


(p)                                 Such
other bills of sale, assignments and other instruments of transfer or
conveyance as Buyer may reasonably request or as may be otherwise necessary to


 


9





















 


evidence and effect the sale, assignment, transfer, conveyance and
delivery of the Purchased Assets to Buyer.


 


In addition to
the above deliveries, Seller shall take all steps and actions as Buyer may
reasonably request or as may otherwise be necessary to put Buyer in actual
possession or control of the Purchased Assets.


 


4.5                                 Shipments
in Process.


 


(a)                                  All
revenue generated, expenses incurred, and all liabilities for shipments loaded
and services performed on or prior to the Closing Date, will be retained and/or
paid by Seller.  All revenue generated,
expenses incurred, and all liabilities with respect to shipments loaded and
services performed after the Closing Date will be retained and/or paid by
Buyer.  The parties agree to cooperate
with each other following the Closing with respect to this division of
responsibility.  Specifically, each party
agrees to promptly forward any claims, payments, correspondence or other
documents or matters that it might receive that should have been directed to
the other party.  Without intending to
limit the foregoing, if a party collects a receivable that belongs to the other
party (i.e., Seller-owned if it relates to a shipment loaded on or before the
Closing Date; Buyer-owned if it relates to a shipment loaded after the Closing
Date), the collecting party will forward such payment to the other party within
five business days of the collecting party’s receipt thereof.  For purposes of this Section 4.5
and the indemnity provisions set forth in Sections 11.1(g) or 11.2(e),
a shipment is deemed loaded when the driver executes a bill of lading for the
shipment and a service is deemed performed when the service is provided.


 


(b)                                 If
Buyer and Seller are unable to resolve any disagreement with respect to such
revenue, expenses or liabilities for shipments, within thirty (30) days
following the receipt of or request for such amounts, then the items in dispute
will be referred to the Chicago office of BDO Seidman, LLP (the “Accountants”)
for final arbitration within forty-five (45) days after submitting the matter
to the Accountants, which arbitration shall be in accordance with this Section 4.5(b) and
final and binding on both Buyer and Seller. 
With respect to this Section 4.5(b), (i) the Accountants
shall act as an arbitrator to determine, based solely on presentations by Buyer
and Seller, and not by independent review, only those amounts still in dispute;
(ii) Buyer and Seller agree to execute, if requested by the Accountants, a
reasonable engagement letter; and (iii) the fees and expenses of the
Accountants shall be allocated between Buyer and Seller so that Seller’s share
of such fees and expenses shall be equal to the product of (x) the aggregate
amount of such fees and expenses, and (y) a fraction, the numerator of which is
the amount in dispute that is ultimately unsuccessfully disputed by Seller (as
determined by the Accountant) and the denominator of which is the total
value in dispute submitted to arbitration.


 


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ARTICLE 5


 


REPRESENTATIONS AND WARRANTIES OF SELLER


 


As an
inducement to Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, Seller hereby represents and warrants to
Buyer that the statements contained in this ARTICLE 5 are true and
correct, except to the extent set forth on the disclosure schedule delivered
contemporaneously with this Agreement by Seller to Buyer (the “Disclosure
Schedule”).  The Disclosure Schedule shall
be arranged in sections and paragraphs corresponding to the lettered and
numbered paragraphs contained in this ARTICLE 5.


 


5.1                                 Organization.  Schedule 5.1 contains a complete
and accurate list of Seller’s jurisdiction of incorporation and each other
jurisdiction in which it is authorized to conduct the Business.  Seller is duly organized, validly existing
and in good standing under the laws of Delaware, and is duly qualified to
transact business as a foreign corporation and is in good standing in each of
the jurisdictions listed in Schedule 5.1, except as would not have
a Material Adverse Effect.  Except as set
forth on Schedule 5.1, there are no other jurisdictions in which
the conduct of its business or the ownership or lease of its assets requires
such qualification under applicable law, except where failure to so qualify
would not have a Material Adverse Effect. 
Seller has the requisite power and authority and all permits and
authorizations necessary to own or lease and to operate and use the Purchased
Assets and to carry on the Business as now conducted, except as would not have
a Material Adverse Effect.  Seller has
delivered to Buyer correct and complete copies of its Organizational Documents.


 


5.2                                 Authority.  Seller has the power and authority to
execute, deliver and perform this Agreement and all of the Seller Ancillary
Agreements to which it is a party.  The
execution, delivery and performance of this Agreement and the Seller Ancillary
Agreements by Seller have been duly authorized and approved by its board of
directors and do not require any further authorization or consent by it.  This Agreement has been duly executed and
delivered by Seller and is the legal, valid and binding obligation of Seller
enforceable in accordance with its terms, and each of the Seller Ancillary Agreements
upon execution and delivery will be a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms.


 


5.3                                 No
Conflicts.  Except as set forth in
the Schedule 5.3, neither the execution and delivery of this Agreement
or any of the Seller Ancillary Agreements nor the consummation of any of the
transactions contemplated hereby or thereby nor compliance with or fulfillment
of the terms, conditions and provisions hereof or thereof will:


 


(a)                                  violate,
conflict with, result in a breach of the terms, conditions or provisions of, or
constitute a default, an event of default or an event creating rights of
acceleration, termination or cancellation or a loss of rights under, or result
in the creation or imposition of any Encumbrance, other than a Permitted
Encumbrance, upon the Business or any of the Purchased Assets under (i) the
certificate of incorporation or bylaws of Seller, (ii) any other Contract,
(iii) any Court Order to which Seller or any of its Affiliates or the
Purchased Assets are subject or by which Seller or any of its Affiliates or any
of the Purchased Assets are bound, or (iv) any Requirements of Law
affecting or applicable to Seller or any of its Affiliates or any of the
Purchased Assets, except, in the


 


11





















 


case of clauses (ii), (iii) and (iv), for any such violation,
conflict, breach, default, right, loss or imposition as would not have a
Material Adverse Effect on the Business or the Purchased Assets; or


 


(b)                                 require
the approval, consent, authorization or act of, or the making by Seller or any
of its Affiliates of any declaration, filing or registration with, any Person.


 


5.4                                 Financial
Statements.


 


(a)                                  At the Closing, the
Financial Statements are in all material respects accurate and complete, are
consistent with the books and records of Seller with respect to the Business
(which, in turn, are accurate and complete in all material respects), were
prepared in accordance with GAAP, and present the financial position and
results of operations of the Business as of their respective dates and for the
respective periods covered thereby in accordance with GAAP, subject, with
respect to the Interim Financial Statements, to the lack of the footnote
disclosure otherwise required by GAAP.


 


(b)                                 Seller has provided
Buyer with the 2005 budget dated December 31, 2004, which is the current
budget relating to the Business and has not been updated since that time.


 


5.5                                 Taxes.  Seller and its Affiliates have timely filed
all Tax Returns that are required to be filed by them with respect to the
Purchased Assets and the conduct of the Business and have timely paid all Taxes
that have become due on such Tax Returns, or pursuant to any assessment that
has become payable.  Each such Tax Return
was true, correct and complete in all material respects.  Except as set forth in Schedule 5.5,
no audit or other proceeding by any United States federal, state or local or
foreign court, governmental or regulatory authority, or similar Person is pending
or threatened with respect to any Taxes due from Seller or any of its
Affiliates with respect any Purchased Asset or the conduct of the Business, or
with respect to any Tax Return filed or required to be filed by, relating to or
including Seller or any of its Affiliates with respect to any Purchased Asset
or the conduct of the Business.  No
assessment or deficiency for any Tax has been proposed or threatened against
Seller or any of its Affiliates with respect to any Purchased Asset or the
conduct of the Business. No written claim has ever been made by an authority in
a jurisdiction where Seller or any of its Affiliates does not file Tax Returns
with respect to the Business or the Purchased Assets that Seller or any of its
Affiliates is or may be subject to taxation by that jurisdiction. Except as set
forth in Schedule 5.5, there are no unexpired waivers of any
statute of limitations with respect to any Taxes relating to any Purchased
Asset or the conduct of the Business for which Seller or any of its Affiliates
may be liable.  With respect to the
Business, Seller and its Affiliates have complied in all material respects with
all Requirements of Law relating to the payment, withholding and reporting of
Taxes relating to the Business (including sections 1441, 1442, 3102, 3401 and
3406 of the Code) and have withheld from employee wages and paid over, in a
timely manner, to the proper authorities all amounts required to be so withheld
and paid over under all Requirements of Law. 
Seller is not party to any Contract providing for the allocation or
sharing of Taxes relating to the conduct of the Business that will continue in
force after the Closing Date.  The
Assumed Liabilities do not include any obligation to make any payments that
will be nondeductible under section 280G of the Code (or any corresponding
provision of state, local or foreign income Tax law).  There are


 


12





















 


no
Encumbrances with respect to Taxes (except for Permitted
Encumbrances) upon any of the Purchased Assets.  Seller is not a “foreign person” within the
meaning of section 1445(a) of the Code.


 


5.6                                 Leased
Real Property.  Schedule 5.6
contains a brief description of each parcel of Leased Real Property.  With respect to the Leased Real Property,
except as set forth in Schedule 5.6:


 


(a)                                  Seller
or its applicable Affiliate enjoys peaceful and undisturbed possession of all
the Leased Real Property;


 


(b)                                 The
leasehold interest of Seller or its applicable Affiliate in each Leased Real
Property is not subject or subordinate to any Encumbrance, except for Permitted
Encumbrances;


 


(c)                                  Neither
Seller nor any of its Affiliates have received notice of any condemnation
proceedings with regard to the Leased Real Property and, to Seller’s Knowledge,
there are no such proceedings contemplated by any governmental authority;


 


(d)                                 Neither
Seller nor any of its Affiliates is party to any sublease, license or other
occupancy agreement granting to any third Person the right to use or occupy any
Leased Real Property;


 


(e)                                  To
Seller’s Knowledge, the present maintenance, operation, use and occupancy of
the Leased Real Property does not violate any Requirement of Law in any manner
that would have a Material Adverse Effect; and


 


(f)                                    The
Real Property Leases for the Westmont Office Facility and the Logistics
Facilities are in full force and effect and constitute legal, valid and binding
agreements of Seller, enforceable against Seller in accordance with their
terms, and, to Seller’s Knowledge, each other party thereto; and except as
disclosed in Schedule 5.6, neither Seller, its Affiliates nor, to
Seller’s Knowledge, any other party to such Real Property Leases is in
violation or breach of or default under any such Real Property Lease (or with
notice or lapse of time or both, would be in violation or breach of or default
under any such Real Property Lease) except for such violation, breach or
default as would not have a Material Adverse Effect.


 


5.7                                 Title
to Property.  Seller has good and
marketable title to all of the Purchased Assets, free and clear of all
Encumbrances other than the Permitted Encumbrances.  The Purchased Assets conveyed to Buyer,
together with the premises to be subleased by Buyer pursuant to the Real
Property Subleases, include all of those assets (real, personal, tangible and
intangible) necessary for the conduct of the Business in substantially the same
manner as the Business is currently conducted (other than the Excluded Assets
and worn out or obsolete fixed assets disposed of in the ordinary course of the
Business).


 


5.8                                 Tangible
Personal Property.  Seller is in
possession of and has good and marketable title to, or has valid leasehold
interests in or valid rights under Contract to use, all the Tangible Personal
Property and intangible assets, property and rights included in the Purchased


 


13





















 


Assets.  All of such Tangible
Personal Property and intangible assets, property and rights is free and clear
of all Encumbrances except Permitted Encumbrances, is in a condition sufficient
for the operation of the Business, and complies in all respects with all
Requirements of Law, except as would not have a Material Adverse Effect.   The Tangible Personal Property of Seller
that is included in the Purchased Assets includes all of the tangible personal
property necessary to meet the requirements of all outstanding Contracts with,
and material commitments to, customers of the Business and all necessary
Tangible Personal Property is in working condition.  Except as set forth on Schedule 5.8,
none of the Tangible Personal Property is held under any lease, security
agreement, conditional sales contract or other title retention or security
arrangement or is located other than on the premises of Seller.  No unreleased mortgage, trust deed, chattel
mortgage, security agreement, financing statement or other instrument
encumbering any of the Assets has been recorded, filed, executed or delivered.


 


5.9                                 Intellectual
Property.  Attached to this Agreement
as Schedule 5.9 is a complete and accurate list and description of
each item of Intellectual Property (other than trade secrets and know-how)
included in the Purchased Assets, together with, in the case of registered and
applied-for Intellectual Property included in the Purchased Assets:  the (i) applicable registration or
application number; (ii) filing, registration, issue or application date; (iii) record
owner; (iv) country; (v) title or description; (vi) remaining
life; and (vii) whether any actions must be taken within four (4) months
from the date of this Agreement to obtain, maintain or renew such registered or
applied-for Intellectual Property.  In
addition, Schedule 5.9 identifies whether each item of such
Intellectual Property is owned by Seller or possessed and used by Seller under
any Contract.  Such Intellectual Property
constitutes valid and enforceable rights and, to Seller’s Knowledge, does not
infringe or conflict with the rights of any other Person.  There is neither pending, nor to Seller’s
Knowledge, threatened, any Legal Proceeding contesting the validity or right of
Seller to use any of such Intellectual Property, and neither Seller nor any of
its Affiliates have received any notice of infringement upon or conflict with
any asserted right of others with respect to such Intellectual Property or the
conduct of the Business nor, to Seller’s Knowledge, is there a basis for such a
notice.  To Seller’s Knowledge, no Person
is infringing upon its rights to such Intellectual Property.  Except as otherwise provided in Schedule 5.9,
Seller does not have any obligation to compensate others for the use of any
such Intellectual Property.


 


5.10                           Contracts.  Schedule 5.10 contains a true and
complete list of each of the following Contracts or other arrangements included
in the Purchased Assets (true and complete copies or, if none, reasonably
complete and accurate written descriptions of which, together with all
amendments and supplements thereto and all waivers of any terms thereof, have
been provided to Buyer prior to the execution of this Agreement) of Seller or
any of its Affiliates relating to the Business:


 


(a)                                  All
such Contracts relating to future capital expenditures;


 


(b)                                 All
such loans (other than Accounts Receivable) and advances to (other than
ordinary course travel and other allowances to the employees and independent
contractors of Seller), and investments in, any Person and all such Contracts
relating to the making of any such loan, advancement or investment;


 


14





















 


(c)                                  All
such Contracts evidencing any indebtedness, including loan and credit
agreements, promissory notes and other instruments of indebtedness;


 


(d)                                 All
such Contracts with any Person containing any provision or covenant prohibiting
or limiting the ability to engage in any business activity or compete with any
Person or limiting the ability of any Person to compete with Seller or its
Affiliates;


 


(e)                                  All
such guarantees or other contingent liabilities in respect of any indebtedness
or obligation of any Person (other than the endorsement of negotiable
instruments for collection in the ordinary and usual course of business
consistent with past custom and practice);


 


(f)                                    All
such Contracts for management service, consulting, maintenance or anything
similar (including any employee lease or outsourcing arrangement) providing for
annual aggregate payments of more than $50,000 in 2004 or potential annual
payment, as currently anticipated, of more than $50,000 in 2005;


 


(g)                                 All
such Contracts relating to the future disposition or acquisition of any assets
for more than $50,000, other than Contracts for the dispositions or
acquisitions of supplies in the ordinary course of business consistent with
past practice;


 


(h)                                 All
collective bargaining or similar labor Contracts covering any Business Employee
(as defined in Section 5.11(a));


 


(i)                                     All
such Contracts relating to the ownership, use or licensing of any Intellectual
Property that involve a future commitment by Seller in excess of $25,000, or
that restrict the rights of the Business regarding, or permit other Persons to
use or register, any material Intellectual Property;


 


(j)                                     All
Assigned Real Property Leases and all Tangible Personal Property Leases;


 


(k)                                  All
material Contracts included in the Purchased Assets and relating to currently
effective warranties or representations made in respect of any services
provided or sold or creating any other liability or obligation to service,
repair, maintain, take back or otherwise do or not do anything in respect to
any such services;


 


(l)                                     All
such Contracts with any Affiliate, holder of more than 10% of the equity or
Employee (including any officer, director or consultant) of Seller other than
ordinary course unwritten agreements for employment at will;


 


(m)                               All
such Contracts that (i) involve the annual payment pursuant to the terms
of any such Contract of more than $50,000 or more in 2004 or potential annual
payment, as currently anticipated, of more than $50,0000 in 2005 or (ii) cannot
be terminated within 30 calendar days after giving notice of termination
without resulting in any cost or penalty to Seller;


 


15





















 


(n)                                 All
such Contracts regarding confidentiality on the part of Seller with customers
identified on Schedule 5.18; and


 


(o)                                 Any
other Contracts entered into outside the ordinary course of the Business or
otherwise material to the operation of the Business.


 


All such
Contracts of Seller are in full force and effect and constitute legal, valid
and binding agreements of Seller, enforceable against Seller in accordance with
their terms, and, to Seller’s Knowledge, each other party thereto; and except
as disclosed in Schedule 5.10, neither Seller, its Affiliates nor,
to Seller’s Knowledge, any other party to such Contract is in violation or
breach of or default under any such Contract (or with notice or lapse of time
or both, would be in violation or breach of or default under any such Contract)
except for such violation, breach or default as would not, individually or in
the aggregate, have a Material Adverse Effect.


 


5.11                           Employee
Relations; Benefit Plans.


 


(a)                                  Schedule 5.11(a) lists
the names and job titles of all employees of Seller or any of its Affiliates
providing services exclusively or primarily with respect to the Business (“Business
Employees”).


 


(b)                                 Except as disclosed in Schedule 5.11(b):


 


(i)                                     None
of Seller or any of its Affiliates is party to, or bound by, any labor
agreement, collective bargaining agreement, work rules or practices, or
any other labor-related agreements or arrangements with any labor union, labor
organization or works council concerning any Business Employees; no labor
union, labor organization, works council, or group of Business Employees has
made a pending demand for recognition or certification, and there are no
representation or certification proceedings or petitions seeking a
representation proceeding presently pending or threatened in writing to be
brought or filed with the National Labor Relations Board or any other labor
relations tribunal or authority with respect to the Business; and, to Seller’s
Knowledge, there are no labor union organizing activities with respect to any
Business Employees.


 


(ii)                                  From
January 1, 2004 to the date of this Agreement, there has been no actual
or, to Seller’s Knowledge, threatened strikes, lockouts, slowdowns or work stoppages by
the Business Employees with respect to the Business.


 


(iii)                               Seller
and its Affiliates are in
substantial compliance with all applicable laws respecting employment and
employment practices with respect to the Business, including, without
limitation, all laws respecting terms and conditions of employment, health and
safety, wages and hours, child labor, immigration, employment discrimination,
disability rights or benefits, equal opportunity, plant closures and layoffs,
affirmative action, workers’ compensation, labor relations, employee leave
issues and unemployment insurance.


 


16





















 


(iv)                              Seller
and its Affiliates have not received, with respect to the Business:  since January 1, 2004, (A) notice
of any unfair labor practice charge or complaint pending or threatened in
writing before the National Labor Relations Board or any other Governmental
Body against them, (B) notice
of any arbitrations or grievances arising out of any collective bargaining
agreement or any other arbitration procedures against them, (C) notice of
any charge or complaint with respect to or relating to them pending before the
Equal Employment Opportunity Commission or any other Governmental Body responsible for the prevention of
unlawful employment practices, (D) notice of the intent of any
Governmental Body responsible for
the enforcement of labor, employment, wages and hours of work, child labor,
immigration, or occupational safety and health laws to conduct an investigation
with respect to or relating to them or notice that such investigation is in
progress, or (E) notice of any complaint, lawsuit or other proceeding
pending or threatened in writing in any forum by or on behalf of any present or
former employee of such entities, any applicant for employment or classes of
the foregoing alleging breach of any express or implied contract of employment,
any applicable law governing employment or the termination thereof or other
discriminatory, wrongful or tortuous conduct in connection with the employment
relationship.


 


(v)                                 To Seller’s Knowledge, no
Business Employee is in any respect in violation of any term of any employment
agreement, nondisclosure agreement, common law nondisclosure obligation,
fiduciary duty, noncompetition agreement, restrictive covenant or other
obligation to a former employer of any such employee relating (i) to the
right of any such employee to be employed by Seller or (ii) to the
knowledge or use of trade secrets or proprietary information.


 


(vi)                              The
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement will not result in any breach or other violation
of any collective bargaining agreement, employment agreement, consulting
agreement or any other labor-related agreement to which Seller or its
Affiliates is a party.


 


17





















 


(c)                                  No liability under
Title IV or Section 302 of ERISA has been incurred by Seller or any ERISA
Affiliate that has not been satisfied in full, and no condition exists that
presents a material risk to Seller or any ERISA Affiliate of incurring any such
liability, other than liability for premiums due the Pension Benefit Guaranty
Corporation (which premiums have been paid when due).


 


(d)                                 Except as disclosed in
Schedule 5.11(d) or as provided in Section 8.2,
the consummation of the transactions contemplated by this Agreement will not,
either alone or in combination with another event, (i) entitle any
Transferred Employee to severance pay, unemployment compensation or any other
payment or (ii) accelerate the time of payment or vesting, or increase the
amount of compensation due any Transferred Employee.


 


(e)                                  There has been no
material failure of a Benefit Plan that is a group health plan (as defined in Section 5000(b)(1) of
the Code) to meet the requirements of Section 4980B(f) of the Code
with respect to a qualified beneficiary (as defined in Section 4980B(g) of
the Code).  Neither Seller nor or any
ERISA Affiliate has contributed to a nonconforming group health plan (as
defined in Section 5000(c) of the Code) and no ERISA Affiliate has
incurred a tax under Section 5000(e) of the Code which is or could
become a liability of Seller or an ERISA Affiliate.


 


5.12                           Absence
of Certain Changes.  Except as
disclosed in Schedule 5.12, since December 31, 2004, there has
not occurred any event or development that, individually or together with other
such events, has had a Material Adverse Effect. 
Except as disclosed in Schedule 5.12, since December 31,
2004, the Business has been conducted only in the ordinary course consistent
with past custom and practice, and has incurred no liabilities other than in
the ordinary course of business consistent with past custom and practice.  Without limitation of the foregoing and
except as set forth on Schedule 5.12, since December 31, 2004:


 


(a) Seller has not, to Seller’s Knowledge after reasonable
investigation, with respect to the business:


 


(i)                           incurred any liabilities or obligations except current
liabilities or obligations for trade payables in connection with the purchase
of goods or services in the ordinary and usual course of business consistent
with past custom and practice;


 


(ii)                        paid, discharged or satisfied any liabilities other than the
payment, discharge or satisfaction in the ordinary course of business
consistent with past practice of liabilities reflected or reserved against in
the Financial Statements or current liabilities incurred since December 31,
2004 in the ordinary and usual course of business consistent with past
practice;


 


(iii)                     permitted or allowed any of their properties or assets (real,
personal or mixed, tangible or intangible) to be subjected to any Encumbrances
(other than Permitted Encumbrances);


 


18





















 


(iv)                    purchased any asset (whether or not in the ordinary and usual
course of business consistent with past practice) for a cost in excess of
$75,000;


 


(v)                       modified, amended or terminated any Contract to the extent
that it involves in excess of $75,000 or waived, released or assigned any
material rights or claims under any Contract except in the ordinary course of
business consistent with past practice.


 


(vi)                    received notification that any client, customer or supplier
who paid Seller or received from Seller at least $50,000 in revenue in 2004 or
$20,000 in the five months ending May 31, 2005 will (i) stop or
decrease in any respect the rate of business done with the Business, (ii) make
any or seek to make any other alteration to its relationship with the Business
or Buyer or (iii) seek to have any agreement, arrangement, contract or
commitment amended or otherwise modified in a manner that has the effect of
reducing the margins of the Business or Buyer or otherwise adversely affects
the Business or Buyer;


 


(vii)                 permitted any material insurance policy naming Seller as a
beneficiary or a loss payee to be cancelled or terminated, except those that
expired according to their terms;


 


(viii)                                                written down the value of any inventories or written off as
uncollectible any accounts receivable, except in the ordinary course of
business consistent with past practice;


 


(ix)                      canceled any debts or waived any material claims or rights
except in the ordinary course of business consistent with past practice;


 


(x)                         except for obligations of Seller under existing Contracts,
made, or permitted any other Person to make, any change in the rate of
compensation, commission, bonus or other direct or indirect remuneration
payable, or paid or agreed or promised to pay, conditionally or otherwise, any
bonus, incentive, retention or other compensation, to or in respect of any
officer, employee or consultant of Seller, or made or granted any increase in,
or established, amended or terminated, any existing plan, program, policy or
arrangement, including, without limitation, any Benefit Plan or arrangement, or
adopted any new Benefit Plan or arrangement or entered into any new collective
bargaining agreement or other union contract or arrangement or multiemployer
plan that was not generally applicable to all of Seller’s employees;


 


(xi)                      made, or directed any other Person to make, any change in the
rate of compensation, commission, bonus or other direct or indirect
remuneration payable, or paid or agreed or promised to pay, conditionally or
otherwise, any bonus, incentive, retention or other compensation, to or in
respect of any of the agents of Seller set forth on Schedule 5.12(xi);


 


(xii)                   adopted or made any change in any method of financial or Tax
accounting or reporting or financial or Tax accounting or reporting practice,
except as required by GAAP, or made or changed any Tax elections;


 


19





















 


(xiii)                conducted the cash management customs and practices
(including the timing of collection of receivables and payment of payables and
other current liabilities) and maintained the books and records of the Business
other than in the ordinary and usual course of business consistent with past
practice;


 


(xiv)               made any loans or advances to, or guarantees for the benefit
of, or entered into any similar transaction with any employee, officer,
director or shareholder of a Seller other than in the ordinary and usual course
of business consistent with past practice.


 


(xv)                  borrowed any money (other than trade payables or other
current expenses, all in the ordinary and usual course of business consistent
with past practice) or issued any bonds, debentures, notes or other corporate
securities evidencing money borrowed;


 


(xvi)               suffered any extraordinary loss, damage, destruction or
casualty loss or waived any rights of material value, whether or not covered by
insurance; and


 


(xvii)            agreed, in writing or otherwise, to take any of the foregoing
actions.


 


(b)                                 Seller has not with respect to the Business:


 


(i)                           sold, transferred, or otherwise disposed of any of its
properties or assets (real, personal or mixed, tangible or intangible), except
for sales of assets or inventory in the ordinary and usual course of business
consistent with past practice;


 


(ii)                        sold, assigned, transferred, abandoned or permitted to lapse
any Permits or any portion thereof, or any of the Intellectual Property or
other intangible assets, disclosed any material confidential information or
trade secret to any person or granted any license or sublicense of any rights
under or with respect to any Intellectual Property or other intangible assets;


 


(iii)                     made any single capital expenditure or commitment in excess
of $50,000 or made aggregate capital expenditures and commitments in excess of
$100,000; or


 


(iv)                    hired or terminated any employee (whether or not in the
ordinary course of business) who has an annual salary in excess of $75,000.


 


5.13                           Environmental
Matters.  Except as disclosed in Schedule 5.13,
to Seller’s Knowledge:


 


(a)                                  Seller
has complied with all applicable Environmental Laws with respect to the
Business and the Leased Real Property, except to the extent any non-compliance
would not have a Material Adverse Effect;


 


20





















 


(b)                                 With
respect to the Business and the Leased Real Property, to Seller’s Knowledge,
there have been no (i) environmental audits, assessments or occupational
health studies; (ii) analyses of water (including groundwater analyses),
soil, air, asbestos or other building materials samples; (iii) inspections
of facilities by the Environmental Protection Agency, any counterpart state
agency, or other relevant environmental authority; (iv) written
communications with environmental agencies relating to issues of noncompliance,
Releases or contamination; or (v) written claims or written complaints
concerning environmental matters;


 


(c)                                  With
respect to the Business, other than in compliance with Environmental Laws,
neither Seller nor its Affiliates have generated, treated, stored or disposed
of, or arranged for the storage, disposal or treatment of, any Contaminant or
other solid waste in, under or on the Leased Real Property or at any other site
or location not permitted for such treatment, storage or disposal;


 


(d)                                 With
respect to the Business, neither Seller nor its Affiliates (i) have
leased, used or owned a site or location that, pursuant to CERCLA or other
similar state law, has been placed on the National Priorities List or its state
equivalent or (ii) are on written notice of, or subject to a written
claim, Court Order, administrative order or other demand either to take “response
action,” “removal” or “remedial” action as those terms are defined respectively
in 42 U.S.C. §§ 9601(25), (23) and (24), RCRA or other federal or state
Environmental Law or to reimburse any person who has taken “response,” “removal”
or “remedial” action in connection with that site;


 


(e)                                  Neither
Seller nor its Affiliates have, with respect to the Business, owned or operated
and do not currently own or operate, any underground storage tanks as defined
in 42 U.S.C. § 6991(1).  Schedule 5.13
sets forth the age, contents or former contents of any above ground or
underground storage tanks located on the Leased Real Property;


 


(f)                                    Neither
Seller nor any third parties has disposed of or buried any solid wastes as
defined in 42 U.S.C. § 6903(27), drums or containers on, in or under the
ground or any surface waters located on the Leased Real Property;


 


(g)                                 There
has been no unpermitted Release of Contaminants at the Leased Real Property
that poses a material risk to human health or the environment, and there are no
Contaminants in the soil or groundwater at the Leased Real Property in
quantities or under circumstances that would require investigation or
remediation pursuant to Environmental Law or that pose a material risk to human
health or the environment; and


 


(h)                                 To
Seller’s Knowledge, no facts, events or conditions with respect to the past or
present operations or facilities of the Business exist which could reasonably
be expected to interfere with or prevent compliance with, or could give rise to
any common law or statutory liability or otherwise form the basis of any
environmental claim against or involving the Business, its assets or the conduct
of its respective business and operations under any Environmental Law now
existing, based on any such fact, event or


 


21





















 


circumstance, including, without limitation, liability for cleanup
costs, personal injury or property damage.


 


5.14                           No
Default, Violation or Litigation. 
Except as disclosed in Schedule 5.14, the Business is not in
violation of and has been operated in compliance with all Requirements of Law,
except as such violation or non-compliance would not have a Material Adverse
Effect, and neither Seller nor any of its Affiliates have received any notice
of claimed noncompliance.  Except as
disclosed in Schedule 5.14 and except as would not have a
Materially Adverse Effect, individually or in the aggregate, (i) there are
no Legal Proceedings pending or, to Seller’s Knowledge, threatened against or
involving the Business or against or involving any of the Purchased Assets or
to which the Business or the Purchased Assets may be bound or affected, at law
or in equity, and there is no basis for any of the foregoing, and (ii) there
are no judgments, orders, consents, decrees, injunctions, or any other judicial
or administrative mandates outstanding against or otherwise relating to or
affecting the Purchased Assets or the Business, nor has Seller received any
written opinion or memorandum or legal advice from legal counsel retained by
Seller to the effect that the Purchased Assets or the Business is exposed, from
a legal standpoint, to any liability which may be material.  Except as disclosed on Schedule 5.14,
Seller is not engaged in any legal action to recover monies due the Business or
for damages sustained by the Business.  Schedule 5.14
sets forth a list of all closed litigation matters which related to the
Business since January 1, 2004, the date such litigation was commenced or
concluded and the nature of the resolution thereof (including amounts paid in
settlement or judgment).


 


5.15                           Insurance
Policies.  Schedule 5.15
is a correct and complete list and description, including policy number,
coverage and deductible, of all insurance policies related to the Business
owned by Seller, correct and complete copies of which policies have previously
been delivered to Buyer.  To Seller’s
Knowledge, such policies are in full force and effect, all premiums due thereon
have been paid and Seller is not in default thereunder.  Seller has not received any written notice of
cancellation or intent to cancel or increase or intent to increase premiums
with respect to such insurance policies. 
Schedule 5.15 also contains a list of all claims related to
the Business to Seller’s Knowledge filed since January 1, 2004 with any
insurance company by Seller.


 


5.16                           Licenses
and Permits.  Schedule 5.16
sets forth a list of all national permits, licenses, registrations,
authorizations, consents, certificates, orders, franchises, variances and
approvals of Governmental Bodies used or held by Seller in connection with the
ownership, use, occupancy or operation of the Purchased Assets and the conduct
and operation of the Business (“Permits”).  Seller is in material compliance with the
terms of the Permits, and Seller has not received any written or oral notices
to the contrary.


 


5.17                           Interests
in Clients, Etc.  Except as set forth
on Schedule 5.17, none of Seller or, to Seller’s Knowledge, any of
its Affiliates owns more than 20% of any competitor, client, customer or
supplier of the Business or of any Person from whom or to whom the Business
leases any real or personal property or of any other Person with whom the
Business has any material business relationship.


 


5.18                           Clients
.  Schedule 5.18 is a
complete and correct list of all customers of the Business who paid Seller at
least $50,000 in revenue in 2004.  Except
as set forth on Schedule 5.18,


 


22





















 


and during the period January 1 through the date hereof, no
customers of the Business who paid Seller at least $100,000 in revenue in 2004,
or paid Seller at least $40,000 in the five months ending May 31, 2005,
has cancelled or otherwise terminated, or threatened to cancel or terminate in
writing, its relationship with the Business.


 


5.19                           Transactions
with Affiliates.  Except as set forth
in Schedule 5.19, no officer, director, employee or, to Seller’s
Knowledge, Affiliate of Seller or any Affiliate of any such Person: (i) owns
any property or right, whether tangible or intangible, which is used by the
Business; (ii) has any claim or cause of action against the Business; (iii) owes
any money to or is owed money from the Business except in the ordinary course
of Business; (iv) is a party to any contract or other arrangement, written
or oral, with the Business (other than normal employment relationships); or
provides or causes to be provided any assets, services or facilities used or
held for use in connection with the Business, and the Business does not provide
or cause to be provided any assets, services or facilities to any such
Person.  Schedule 5.19 sets
forth every business relationship to Seller’s Knowledge (other than normal
employment relationships) between the Business, on the one hand, and
Seller’s officers, directors and employees, on the other hand.


 


5.20                           Software.  The Software of Seller that is included in
the Purchased Assets and the Software provided or supported under the SBA and
specifically identified therein is all of the Software necessary to meet the
requirements of all outstanding Contracts with, and material commitments to,
customers of the Business.  The Software
of Seller that is included in the Purchased Assets and the Software provided or
supported under the SBA and specifically identified therein is all of the
Software necessary to conduct the Business as currently conducted.  With respect to the use of the Software that
is included in the Purchased Assets, (i) no capital expenditures are
necessary with respect to the use of such Software other than capital
expenditures in the ordinary course of business that are consistent with the
past practice of Seller, and (ii) Seller has not experienced any material
defects in such Software, including any material error or omission in the
processing of any transactions other than defects which have been
corrected.  There is neither pending, nor
to Seller’s Knowledge threatened, any Legal Proceeding alleging a violation of
any Person’s privacy or personal information or data rights with respect to the
Business, nor to Seller’s Knowledge is there a basis for such a Legal
Proceeding.


 


5.21                           Agent
Commissions .  Schedule 5.21
lists the name and compensation (including rate of commission) of the agents of
Seller being paid in connection with the Business in 2004 and through May 31,
2005.


 


5.22                           Solvency
of Seller.


 


(a)                                  Seller is not now
insolvent nor will it be rendered insolvent by the transactions contemplated by
this Agreement.  As used in this Section 5.22,
“insolvent” with respect any Person means that the sum of the liabilities of
such Person exceeds the present fair market value of such Person’s assets.


 


(b)                                 Immediately after
giving effect to the consummation of the transactions contemplated by this
Agreement:  (i) Seller will be able
to pay its liabilities as they become due in the ordinary course of its
business; (ii) Seller will not have unreasonably


 


23





















 


small capital with which to
conduct its present business; and (iii) Seller will be able to satisfy any
judgments and other obligations to which it is subject, as well as any
judgments that are likely to arise as a result of any pending or threatened
litigation against it.


 


5.23                           Brokers.  All negotiations relative to this Agreement
and the transactions contemplated hereby have been carried out by Seller
directly with Buyer without the intervention of any Person on behalf of Seller
in such manner as to give rise to any claim by any Person against Buyer or any
of the Purchased Assets for a finder’s fee, brokerage commission or similar
payment, except for Seller’s retention of Lazard Freres & Co., LLC,
and Seller and its Affiliates shall be responsible for all amounts owed to
Lazard Freres & Co., LLC.


 


5.24                           No
Knowledge of Breach of Representations . 
To Seller’s Knowledge, none of the representations and warranties of
Seller set forth in this Agreements, in any of the certificates, schedules, lists,
documents, exhibits, or other instruments delivered, or to be delivered, to
Buyer as contemplated by any provision hereof, contains any untrue statement of
a material fact or omits to state a material fact necessary, in light of the
circumstances under which it was made, to make the statements contained herein
or therein not misleading.  To Seller’s
Knowledge, there are no facts, events or occurrences that have not been
disclosed to Buyer which materially adversely affect or could reasonably be
expected to materially adversely affect the Business or Seller’s ability to
consummate the transactions contemplated hereby or in any other agreements
contemplated hereby.


 


5.25                           No
Other Representations or Warranties. 
Except for the representations and warranties contained in this ARTICLE 5,
Seller makes no express or implied representation or warranty.


 


ARTICLE 6


 


REPRESENTATIONS AND WARRANTIES OF BUYER


 


As an
inducement to Seller to enter into this Agreement and to consummate the
transactions contemplated hereby, Buyer hereby represents and warrants to
Seller and agrees that the statements contained in this ARTICLE 6 are true
and correct.


 


6.1                                 Organization.  Buyer is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware.


 


6.2                                 Authority.  Buyer has full power and authority to
execute, deliver and perform this Agreement and all of the Buyer Ancillary
Agreements.  The execution, delivery and
performance of this Agreement and the Buyer Ancillary Agreements by Buyer has
been duly authorized and approved by its board of directors, stockholders (if
required) or similar Persons and do not require any further authorization or
consent.  This Agreement has been duly executed
and delivered by Buyer and is the legal, valid and binding agreement of Buyer
enforceable in accordance with its terms, and each of the Buyer Ancillary
Agreements has been duly authorized by Buyer, as appropriate, and upon
execution and delivery by Buyer, as appropriate, will be a legal, valid and
binding obligation such party enforceable in accordance with its terms, except
as


 


24





















 


may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors’ rights in general
and subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).


 


6.3                                 No
Conflicts.  Neither the execution and
delivery of this Agreement or any of the Buyer Ancillary Agreements nor the
consummation of any of the transactions contemplated hereby or thereby nor
compliance with or fulfillment of the terms, conditions and provisions hereof
or thereof will:


 


(a)                                  Violate,
conflict with, result in a breach of the terms, conditions or provisions of, or
constitute a default, an event of default or an event creating rights of
acceleration, termination or cancellation or a loss of rights under (i) the
Organizational Documents of Buyer, (ii) any Contract or License of Buyer, (iii) any
Court Order to which Buyer is a party or by which Buyer is bound, or (iv) any
Requirements of Laws affecting Buyer; or


 


(b)                                 Require
the approval, consent, authorization or act of, or the making by Buyer of any
declaration, filing or registration with, any Person.


 


6.4                                 Funding
Commitment.  Buyer has received the
written commitment for funding to consummate the purchase of the Purchased
Assets in the form attached hereto as Schedule 6.4 (the “Commitment”).


 


6.5                                 Brokers.  All negotiations relative to this Agreement
and the transactions contemplated hereby have been carried out by Buyer
directly with Seller without the intervention of any Person on behalf of Buyer
in such manner as to give rise to any claim by any Person against Seller for a
finder’s fee, brokerage commission or similar payment.


 


6.6                                 No
Other Representations or Warranties. 
Except for the representations and warranties contained in this ARTICLE 6,
Buyer does not make any express or implied representation or warranty.


 


ARTICLE 7


 


ACTION PRIOR TO THE CLOSING DATE


 


The respective
parties hereto covenant and agree to take the following actions between the
date hereof and the Closing Date:


 


7.1                                 Preserve
Accuracy of Representations and Warranties. 
All of the parties hereto shall refrain from taking any action that
would render any representation or warranty contained in this Agreement
inaccurate as of the Closing Date.  Each
of Seller, on the one hand, and Buyer, on the other hand, shall promptly notify
the other of any Legal Proceeding that shall be instituted or threatened
against such party to restrain, prohibit or otherwise challenge the legality of
any transaction contemplated by this Agreement.


 


25





















 


7.2                                 Consents
of Third Parties; Governmental Approvals. 
Seller will act diligently and reasonably to secure, before the Closing
Date, the consent, approval or waiver, in form and substance reasonably
satisfactory to Buyer, from any party to any Contract required to be obtained
to assign or transfer any such Contracts to Buyer or to otherwise satisfy the
conditions set forth in Section 9.6 and Buyer will provide Seller
with reasonable assistance in obtaining such consents.


 


7.3                                 Investigation
by Buyer.  Seller will (i) provide
Buyer and its officers, managers, employees, agents, counsel, accountants,
financial advisors, consultants and other representatives (collectively, “Representatives”)
and any Person providing financing to Buyer and such Person’s Representatives
with full access, upon reasonable prior notice and during normal business
hours, to the officers, employees and agents of Seller who have responsibility
for the conduct of the Business, to Seller’s accountants and other consultants
and advisors and to the Purchased Assets, and (ii) furnish Buyer and such
other Persons with all such information and data (including, without
limitation, copies of Contracts and other books and records) concerning the
Business, the Purchased Assets and the Assumed Liabilities as Buyer or any of
such other Persons reasonably may request in connection with such
investigation.  The results of such
investigation shall not relieve Seller from its obligations with respect to
representations and warranties made by Seller in this Agreement.


 


7.4                                 Public
Announcement.  Neither Seller and its
Affiliates, on the one hand, nor Buyer and its Affiliates, on the other hand,
shall issue any public report, statement, press release or similar item or make
any other public disclosure with respect to the execution or substance of this
Agreement or the Closing prior to the consultation with and written approval of
the other party, except as required by law or regulation, including by the
federal securities laws and the rules and regulations of the New York
Stock Exchange.  To the extent reasonably
feasible, the initial press release or other announcement or notice regarding
the transactions contemplated by this Agreement shall be made jointly by the
parties.


 


7.5                                 Operations
Prior to the Closing Date.  Seller
shall operate and carry on the Business only in the ordinary course consistent
with past practice.  Without limiting the
generality of the foregoing, with respect to the Business, Seller will use all
reasonable efforts to:


 


(a)                                  (i) Preserve
intact the present business organization and reputation of the Business, (ii) keep
available (subject to dismissals and retirements in the ordinary course of
business consistent with past practice) the services of Seller’s employees, (iii) maintain
the Purchased Assets in good working order and condition, ordinary wear and
tear excepted, (iv) maintain the good will of customers, suppliers and
other Persons to whom Seller sells goods or provides services or with whom
Seller otherwise has significant business relationships, (v) continue all
current sales, marketing and promotional activities, and (vi) continue all
capital expenditures and maintenance;


 


(b)                                 (i) Cause
Seller’s books and records to be maintained in the usual, regular and ordinary
manner and (ii) not permit any change in the management practices of the
Business (including any material pricing, investment, accounting, financial
reporting, credit, allowance, or Tax practice or policy); and


 


26





















 


(c)                                  Comply,
in all material respects, with all Requirements of Law and promptly following
receipt thereof to give Buyer copies of any notice received from any
Governmental Body or other Person alleging any violation of any law or
regulation.


 


7.6                                 Employee
Matters.  Seller and its Affiliates,
with respect to the Business, will refrain from directly or indirectly:


 


(a)                                  Making
any representation or promise, oral or written, to any employee concerning any
Benefit Plan, except for statements as to the rights or accrued benefits of any
employee under the terms of any Benefit Plan and the effect of the transaction
described herein on such rights and accrued benefits and disclosures required
by ERISA or other Requirements of Law;


 


(b)                                 Making
any increase in the salary, wages or other compensation of any employee other
than scheduled annual increases disclosed in Schedule 7.6(b);


 


(c)                                  Adopting,
entering into, amending, modifying or terminating (partially or completely) any
Benefit Plan, except as necessary or appropriate to comply with Section 8.2,
or to the extent required by applicable law;


 


(d)                                 Establishing
or modifying any (i) targets, goals, pools or similar provisions in
respect of any fiscal year under any Benefit Plan or any employment Contract or
other compensation arrangement with or for Business Employees or (ii) salary
ranges, increase guidelines or similar provisions in respect of any Benefit
Plan or any employment Contract or other compensation arrangement with or for
Business Employees;


 


(e)                                  Voluntarily
recognizing any union or labor organization as a representative of any Business
Employee or entering into any collective bargaining agreements or other
labor-related contracts;


 


(f)                                    Hiring
any employee (whether or not in the ordinary course of business) who has annual
salary in excess of $50,000, except with the prior written consent of Buyer,
which will not be unreasonably withheld; or


 


(g)                                 Terminating
any employee who has annual salary in excess of $50,000, other than a
termination in connection with a disciplinary matter in the ordinary course of
business, except with the prior written consent of Buyer, which will not be
unreasonably withheld;.


 


Seller and its
Affiliates will use reasonable and good faith efforts to cause the Business
Employees to continue to provide services to the Business.


 


7.7                                 Certain
Restrictions.  Neither Seller nor any
of its Affiliates, with respect to the Purchased Assets or the Business, will
without the consent of Buyer (which consent shall not be unreasonably withheld
or delayed), directly or indirectly,


 


27










 













 


(a)                                  Conduct
the Business other than in the ordinary course consistent with past custom and
practice;


 


(b)                                 Conduct
the cash management customs and practices (including the timing of collection
of receivables and payment of payables and other current liabilities) other
than in the usual and ordinary course of business consistent with past custom
and practice;


 


(c)                                  Acquire,
dispose of or permit to lapse any assets or properties other than in the
ordinary course of business consistent with past practice, or mortgage, pledge
or subject them to any Encumbrance except for Permitted Encumbrances, or cancel
without fair consideration any material debts or claims owing to or held by it;


 


(c)                                  Make
any capital expenditures or commitments in excess of $25,000 for additions to property, plant or equipment constituting
capital assets or made aggregate capital expenditures or commitments for
additions to property, plant or equipment constituting capital assets in excess
of $50,000;


 


(d)                                 Make
any capital investment in, any loan to, or any acquisition of the securities or
material assets of any other Person or take any steps to incorporate any
subsidiary;


 


(e)                                  Make
any loans or advances to, or guarantees for the benefit of, or enter into any
transaction or agreement with any employee, officer or director, except for (x)
the transactions contemplated by this Agreement or the other agreements being
executed and delivered at the Closing pursuant to the terms hereof, and (y)
advances and other employee arrangements consistent with past custom and
practice made to any shareholders, employees, officers and directors for travel
and business expenses incurred in the ordinary course of business;


 


(f)                                    Engage
in or conduct any other material transaction involving the Purchased Assets,
whether or not in the ordinary course of business;


 


(g)                                 (A) Enter
into any Contract (1) out of the ordinary course of business or (2) restricting
in any respect the conduct of the Business as currently conducted, (B) make
any loans (other than advances for travel and business expenses incurred in the
ordinary course of business), (C) make any distributions of property other
than cash, (D) execute any guarantee, issue any debt or borrow any money,
except from suppliers in the ordinary course of business or buy or sell any
assets out of the ordinary course of business or (E) institute, settle or
compromise any litigation in excess of $50,000;


 


(h)                                 Enter
into any transaction or Contract (including, without limitation, with respect
to any transfer of any of the Purchased Assets or the placing of an Encumbrance
on any of the Purchased Assets) except on an arm’s-length basis in the ordinary
course of the Business consistent with past custom and practice;


 


28





















 


(i)                                     Modify,
amend or terminate any Contract under which Seller received or paid $100,000 or
more in 2004 or in the year to date in 2005 or waive, release or assign any
material rights or claims under any Contract;


 


(j)                                     Adopt
or make any change in any financial or Tax accounting methods, principles or
practices or make or change any Tax elections, except as may be required by
law, GAAP or Seller’s independent auditor;


 


(k)                                  Pay,
discharge or satisfy any liabilities other than the payment, discharge or
satisfaction in the ordinary course of business consistent with past practice
in the ordinary and usual course of business consistent with past practice;


 


(l)                                     Permit
any material insurance policy naming a Seller as a beneficiary or a loss payee
to be cancelled or terminated, except those that expired according to their
terms;


 


(m)                               Write
down the value of any inventories or write off as uncollectible any accounts
receivable, except in the ordinary course consistent with past practice;


 


(n)                                 (i) Sell,
assign, transfer, abandon or permit to lapse any Permits or any portion
thereof, or any of the Intellectual Property or other intangible assets, (ii) disclose
any material confidential information or trade secret to any person except in
the ordinary course of business consistent with past practice or (iii) grant
any license or sublicense of any rights under or with respect to any
Intellectual Property other than the pending license of CDS to Specialized
Transportation, Inc. (the portions of which relating to CDS will be
transferred to Buyer);


 


(o)                                 Amend,
modify, extend, terminate or renew any Real Property Lease or enter into a new
lease upon the termination of an existing Real Property Lease; or


 


(p)                                 Agree,
in writing or otherwise, to take any of the foregoing actions.


 


7.8                                 Bulk
Transfers; Bulk Sales Laws.  Prior to
and after the Closing, Seller shall cooperate with Buyer to comply with all
applicable provisions of state tax laws that in the absence of such compliance
would hold Buyer liable for unpaid Taxes of Seller.  Within 180 days of the Closing or at such
time as required by applicable Requirements of Law, Seller shall deliver to
Buyer tax clearance certificates for all such Taxes.  Notwithstanding anything to the contrary in Section 11.1
or elsewhere in this Agreement, Seller shall indemnify and hold Buyer harmless
against any and all Losses incurred by Buyer or any of its Affiliates as a
result of any failure by Seller to comply with any “bulk sales,” “bulk transfer”
or similar laws in connection with this Agreement or the transactions
contemplated hereby.


 


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ARTICLE 8


 


ADDITIONAL AGREEMENTS


 


8.1                                 Taxes.


 


(a)                                  Seller
shall be liable for and shall pay all Taxes (whether assessed or unassessed)
imposed on or required to be paid with respect to the Business or the Purchased
Assets for all periods (or portions thereof) ending on or prior to the Closing
Date.  Buyer shall be liable for and
shall pay all Taxes imposed on or required to be paid with respect to the
Business or the Purchased Assets for all periods (or portions thereof)
beginning after the Closing Date.


 


(b)                                 In
the case of any real or personal property Taxes with respect to the Purchased
Assets that relate in whole or in part to periods both prior to and after the
Closing Date, such Taxes will be prorated between Buyer and Seller based upon
the number of days of the taxable period before and after the Closing
Date.  The proration of such Taxes shall
be addressed by direct payment between Buyer and Seller.


 


(c)                                  Any
Transfer Tax payable with respect to the sale or transfer of the Purchased
Assets from Seller to Buyer shall be the responsibility of the Seller.  Seller shall prepare and file all necessary
Tax Returns and other documentation with respect to such Taxes and, if required
by applicable law, Buyer shall join in the execution of any such Tax Returns
and other documentation.


 


(d)                                 After
the Closing, upon reasonable notice, Buyer, on the one hand, and Seller, on the
other hand, agree to furnish or cause to be furnished to each other and their
representatives, employees, counsel and accountants access, during normal
business hours, to such information and assistance relating to the Business and
the Purchased Assets as are reasonably necessary for financial reporting and
accounting matters relating to the Business and the Purchased Assets, the
preparation and filing of any Tax Returns, reports or forms relating to the
Business or the Purchased Assets, the defense of any Tax or other claim or
assessment relating to the Business or the Purchased Assets; provided, however,
that such access and assistance do not unreasonably disrupt the normal
operations of Buyer, in the case of access and assistance given to Seller, or
Seller, in the case of access and assistance given to Buyer.


 


(e)                                  Buyer
and Seller shall, to the extent reasonably possible, treat Buyer as a “successor
employer” and Seller as a “predecessor,” within the meaning of sections 3121(a)(1) and
3306(b)(1) of the Code and the applicable Treasury Regulations, with
respect to employees of Seller to be employed by Buyer for purposes of Taxes
imposed under the United States Federal Unemployment Tax Act or the United
States Federal Insurance Contributions Act.


 


8.2                                 Employees.


 


(a)                                  Except
as provided in (b) below, Buyer shall offer employment effective as of the
Closing Date to all Business Employees who are identified on Schedule 5.11(a) and
who are actively at work at Seller immediately prior to the Closing, except for
those listed on Schedule 8.2(a) who shall remain employees of
Seller.  Each offer of employment shall
be made on a date prior to the Closing Date that is mutually agreeable to Buyer
and Seller, shall be conditioned on the Business Employee actually working for
Seller up to the Closing and shall provide salary, position, bonus targets and
health


 


30





















 


benefits that in the aggregate are substantially comparable to the
salary, position, bonus targets and health benefits provided by Seller to the
Business Employee.  The offers of
employment shall provide a work location within a reasonable commute of the
work location provided by Seller to the Business Employee.  For the avoidance of doubt, nothing herein
shall preclude Buyer from amending or terminating any of the items set forth in
the preceding sentence following the Closing Date; provided, however, that, so
long as a Transferred Employee remains employed by Buyer, no such action taken
within the three month period following the Closing Date shall have the effect
of reducing or eliminating any such salary, position, bonus targets and health
benefits such that they are no longer substantially comparable to the salary,
position, bonus targets and health benefits provided by Seller to the
Transferred Employee.  All such employees
who accept and timely commence employment with Buyer are hereinafter referred
to as the “Transferred Employees.”


 


(b)                                 In
the case of any Business Employee identified on Schedule 5.11(a) and
not listed on Schedule 8.2(a) who is on an approved leave of
absence (including due to authorized short-term leave of absence or short-term
disability) as of the Closing Date (“Leave Status Employee”), if such
employee is able to return to work within 90 days following the Closing Date,
Buyer shall extend an offer of employment to such employee upon the same terms
described in (a) except that it shall be for employment effective as of
the employee’s return to work date, rather than the Closing Date.


 


(c)                                  Effective
as of the Closing (or the employee’s return to work date in the case of any
Leave Status Employee) (“Hire Date”), all Transferred Employees who
accept and commence employment with Buyer shall cease to be employees of Seller
and shall become employees of Buyer. 
Buyer shall neither adopt nor become a sponsoring employer of, or have
any obligations or liabilities under or with respect to, Seller’s Benefit
Plans.


 


(d)                                 Subject
to Section 8.2(e), Buyer shall provide all Transferred Employees
with credit for their service with Seller for purposes of eligibility to participate
and vesting under all employee benefit plans, programs and policies of Buyer in
which such employees are eligible to participate, except to the extent that the
provision of such credit would result in duplications of benefits.


 


(e)                                  On
the Closing Date, Buyer shall adopt a severance plan applicable to periods on
or following the Closing Date with substantially comparable benefits to those
described in Seller’s Severance Pay Policy for any Transferred Employee;
provided, however, that Buyer shall not be required to provide Transferred
Employees with credit for their service with Seller under such severance
plan.  For the avoidance of doubt,
nothing herein shall preclude Buyer from amending or terminating such severance
plan following the Closing Date; provided, however, that no such action taken
within the three month period following the Closing Date shall have the effect
of reducing or eliminating any such benefit.


 


(f)                                    Buyer
shall be solely responsible for providing continuation medical coverage as
required by Sections 601–607 of ERISA for all Transferred Employees and


 


31





















 


their dependents with respect to all qualifying events that occur on or
after the applicable Hire Date.  Seller
shall be solely responsible for providing continuation medical coverage as
required by Sections 601–607 of ERISA for all Business Employees and their
dependents with respect to all qualifying events that occur prior to the
applicable Hire Date.


 


(g)                                 Buyer
shall not provide any subsidy or incentive, directly or indirectly, to any
Transferred Employee for electing COBRA continuation coverage or retiree
medical insurance coverage offered by Seller, other than, in the event Seller
does not have its health benefit plans in place, with respect to COBRA
continuation coverage during the first 90 days immediately following the
Closing Date.


 


(h)                                 Without
limiting the obligation of Seller under applicable law, Seller shall cause the
accounts of each Transferred Employee under Seller’s 401(k) plan to become
fully vested immediately prior to the Closing Date.  Seller shall also cause each Transferred
Employee who would have been eligible to receive retiree medical benefits had
such employee retired from Seller and its Affiliates as of the Closing Date or
during the 24 month period following the Closing Date, had such employee
remained employed with Seller or an Affiliate, to receive such retiree medical
benefits if such employee retires from Buyer and its Affiliates during the 24
month period commencing on the Closing Date. 
Buyer shall notify Seller of any such retirement during such 24 month
period.


 


(i)                                     As
soon as practicable after the Closing Date, Buyer and Seller shall arrange for
the accounts of all Transferred Employees in Seller’s 401(k) plan to be
transferred to a 401(k) plan of Buyer or an Affiliate of Buyer in a
trustee-to-trustee transfer (which is intended to be qualified under §401 of
the Code).  The transfer shall be in the
form of (i) cash or other assets, such as mutual fund shares, acceptable
to the trustee of Buyer’s 401(k) plan and (ii) the promissory notes
representing any outstanding participant loans of the Transferred Employees.


 


(j)                                     As
soon as practicable after the Closing Date, Seller shall pay to each
Transferred Employee the value of all accrued, unused paid time off.


 


(k)                                  On
the first business day following the Closing Date, Seller shall provide a list
of the name and site of employment of any and all employees of the Business who
have experienced an employment loss or layoff (as defined by WARN or any
similar applicable state or local law requiring notice to employees in the
event of a closing or layoff) within ninety (90) days prior to the Closing
Date.


 


(l)                                     Nothing
in this Section 8.2 express or implied shall confer upon any
Transferred Employee, any current or former employee of Seller or other person
or legal representative thereof any rights or remedies, including any right to
employment, continued employment for any specified period, or compensation or
benefits of any nature or kind whatsoever under or by reason of this Agreement,
and no such person shall be considered a third party beneficiary of this
Agreement.


 


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(m)                               If
requested by Buyer, Seller shall, during the 90 day period following the
Closing Date, provide certain payroll and benefits administration services on
behalf of Buyer, in each case in the manner set forth in the Transitional
Services Agreement.  In order to perform
such services, Seller may be required to incur certain expenses with its
service providers on behalf of Buyer prior to Closing.  Upon any termination of this Agreement under Section 12.1,
except for a termination by Buyer under Section 12.1(c), Buyer
agrees to reimburse Seller within five days of such termination for any such
expenses approved by Buyer.


 


(n)                                 Seller
shall cause each Transferred Employee who has an account balance in any
deferred compensation plan sponsored by Seller or any of its Affiliates to be
paid out the full value of such account balance in accordance with each
Transferred Employee’s election under Seller’s deferred compensation plan.


 


(o)                                 Buyer
shall establish a dependent care spending account and a medical care spending
account (the “Buyer FSAs”) effective as of the Closing Date, which Buyer
FSAs shall have terms that are substantially identical to the analogous Seller
dependent care and medical care flexible spending accounts (the “Seller FSAs”)
as in effect immediately prior to the Closing Date.  Buyer and Seller shall take all steps
necessary or appropriate so that the account balances (if any) under the Seller
FSAs of each Transferred Employee who has elected to participate therein in the
year in which the Closing Date occurs shall be transferred, as soon as practicable
after the Closing Date from the Seller FSAs to the corresponding Buyer
FSAs.  The Buyer FSAs shall assume
responsibility as of the Closing Date for all outstanding dependent care and
medical care claims under the Seller FSAs of each Transferred Employee for the
year in which the Closing Date occurs and shall assume and agree to perform the
obligations of the analogous Seller FSA from and after the Closing Date.  Buyer shall take all steps necessary or
appropriate so that the contribution elections of each such Transferred
Employee as in effect immediately before the Closing Date remain in effect
under the Buyer FSAs following the Closing Date.


 


8.3                                 Noncompete
by Seller.  For a period beginning on
the Closing Date and ending five years thereafter, Seller and its Affiliates
shall not, directly or indirectly, in any capacity or by means of any corporate
or other device within the United States of America and Canada:


 


(a)                                  Own,
operate, manage, control, engage in, invest in any business or participate in
any manner in, act as a consultant or advisor to, render services for (alone or
in association with any Person), or otherwise assist any Person that engages in
any of the dedicated call center (for third parties other than Affiliates),
inventory management and transportation management services provided by the
Business operated as SIRVA Logistics in the twelve months prior to the Closing,
including, but not limited to, (i) operating as a Non-Asset Based lead
logistics provider, (ii) providing inventory management with a single
client across multiple storage locations utilizing a single instance relational
database, (iii) providing vendor managed inventory services utilizing a
serialized database, or (iv) providing Non Asset-Based reverse logistics
or transportation management services;


 


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(b)                                 Without
Buyer’s prior written consent, solicit business from any Person which is or was
a client or customer of the Business during the two (2) year period
preceding the Closing Date, or from any successor in interest to any such
Person, in any case, for the purpose of securing business or contacts for
services restricted by Section 8.3(a) above; or


 


(c)                                  Solicit,
encourage, initiate or knowingly participate in discussions or negotiations
with, or provide any information to, any present client, customer or supplier
of the Buyer or the Business operated as SIRVA Logistics on the Closing Date
with respect to the termination or other alteration of his, her or its
relationship with the Buyer;


 


(d)                                 Solicit,
encourage, initiate or knowingly participate in discussions or negotiations
with, or provide any information to, any New Party whose relationship to the
Buyer is known to the Seller with respect to the termination or other alteration
of his, her or its relationship with the Buyer as such relationship relates to
the services that Seller is restricted from providing by Section 8.3(a) above;


 


provided, however, that this Section 8.3
shall not preclude (i) Seller or its Affiliates from engaging in the
following activities:  (w) records
storage and management (other than involving the Business as it is currently
conducted by Seller); (x) household goods moving for individual, corporate and
government (including military) customers; (y) commercial relocation services
(including inter- and intra-facility transportation and moving of new and used
furniture, fixtures, equipment and miscellaneous goods not for resale) and
associated project management; and (z) employee relocation services (including
mortgage and title services); (ii) the transportation and storage of high
value products and related incidental support services as currently conducted
by Allied Van Lines, Inc.’s Special Products Division and Seller’s Flatbed
business or (iii) Seller from owning no more than 5% of the outstanding
equity of a Person with a class of equity registered under the Securities
Exchange Act of 1934, as amended.  In the
event that any of the territorial, time or scope limitations is deemed to be
unreasonable by a court of competent jurisdiction, Buyer and Seller agree, and
Seller submits, to the reduction of any or all of said territorial, time or
scope limitations to such an area, period or scope as said court shall deem
reasonable under the circumstances.  If
such partial enforcement is not possible, the provision shall be deemed
severed, and the remaining provisions of this Agreement shall remain in full
force and effect.  The parties
acknowledge that Seller and its Affiliates currently provide services to Canon
USA, Inc. and Philips Medical Systems North America Company; such services
are of the type that are not restricted by Section 8.3(a) and
the parties acknowledge that the Section 8.3(a) restrictions
are also applicable to such clients.


 


Seller acknowledges
that the restrictions contained in this Section 8.3 are reasonable
and necessary to protect the legitimate interests of Buyer, including, but not
limited to, the protection of the goodwill and Confidential Information (as
defined in Section 8.7 below) purchased hereunder.  Seller further acknowledges that the
restrictions contained in this Section 8.3 do not cause Seller or
its Affiliates undue hardship, and that any violations of any provision of this
Section 8.3 will result in irreparable injury to Buyer and that,
therefore, Buyer shall be entitled to preliminary and permanent injunctive
relief in any court of competent jurisdiction, without bond, and to an
equitable accounting of all earnings, profits and other benefits arising from
such


 


34





















 


violation, which rights shall be cumulative and in addition to any
other rights or remedies to which Buyer may be entitled.


 


8.4                                 Nonsolicitation
by Seller.  Seller and its Affiliates
shall not, directly or indirectly, in any capacity or by means of any corporate
or other device within the United States of America and Canada:


 


(a)                                  Hire,
employ, engage, recruit, solicit, or attempt to hire any Transferred Employee
for a period of two years from the Closing Date, without the prior written
consent of Buyer; or


 


(b)                                 Hire,
employ, engage, recruit, solicit, or attempt to hire any Transferred Employee
for a period beginning two years following the Closing Date until five years
after the Closing Date, without the prior written consent of Buyer, except (i) with
the prior consent of Buyer, (ii) if the employee initiates any employment
discussions with Seller or (iii) pursuant to a general solicitation by
means of a radio, internet, newspaper, television or similar advertisements not
specifically targeted to such employees.


 


8.5                                 Nonsolicitation
by Buyer.  Buyer shall not, directly
or indirectly, in any capacity or by means of any corporate or other device
within the United States of America and Canada:


 


(a)                                  Solicit
or recruit any employee of Seller, for a period of one year from the Closing
Date, except (i) with the prior consent of Seller, (ii) if the
employee initiates any employment discussions with Buyer or (iii) pursuant
to a general solicitation by means of a radio, internet, newspaper, television
or similar advertisements not specifically targeted to such employees; or


 


(b)                                 Solicit
or recruit any employee of Specialized Transportation Inc. or Gainey
Transportation Services, Inc., for a period of one year from the Closing Date,
except (i) with the prior consent of the applicable current employer, (ii) if
the employee initiates any employment discussions with Buyer or (iii) pursuant
to a general solicitation by means of a radio, internet, newspaper, television
or similar advertisements not specifically targeted to such employees.


 


8.6                                 Enforcement
of STI and Gainey Non-Solicitations. 
Upon the request of Buyer, Seller agrees to assign to Buyer Seller’s
right to enforce the non-solicitation provisions with respect to Buyer’s employees
in the STI Agreement and Gainey Agreement as they relate to the Business;
provided, however, to the extent that such right can not be assigned, Seller
agrees to take all necessary steps to enforce the non-solicitation provisions
described above at Buyer’s expense.


 


8.7                                 “As
Is” Condition.  Except as otherwise
expressly stated in this Agreement, Buyer agrees that it shall accept the
Purchased Assets in an “As is,” “Where is” condition at the Closing Date.


 


8.8                                 Confidential
Information.  From the date hereof
and thereafter, Seller and its Affiliates shall keep secret and retain in
strictest confidence, and shall not, without the prior written consent of
Buyer, furnish, make available or disclose to any third party or use for the


 


35





















 


benefit of itself or any third party, any Confidential
Information.  As used in this Section 8.7,
“Confidential Information” shall mean any information relating to the
Business and the business or affairs of Buyer, including, without limitation,
to information relating to the purchase price and terms of this Agreement, the
financial statements, client or customer identities, potential clients or
customers, employees, suppliers, servicing methods, equipment, programs,
strategies and information, analyses, profit margins or other proprietary
information; provided, however, that Confidential Information
shall not include any information which is in the public domain or becomes
generally known in the public domain through no wrongful act on the part of
Seller or its Affiliates.  If Seller or
any of its Affiliates is requested or required by Law, court order or similar process or
proceeding to disclose any Confidential Information, such party will
provide Buyer with prompt written notice of such request(s) so that Buyer may
seek an appropriate protective order, at Buyer’s expense, and/or waive
compliance with the provisions of this Section 8.7.  If, failing the entry of a protective order
or the receipt of a waiver hereunder, Seller or any of its Affiliates is
compelled to disclose Confidential Information, such party may disclose only
that portion of such information as is legally required without liability
hereunder; provided, that such party shall exercise its best efforts at Buyer’s
expense to obtain assurance that confidential treatment will be accorded such
Confidential Information. Seller
acknowledges that the Confidential Information is vital, sensitive,
confidential and proprietary to the Business and Buyer.


 


8.8                                 Discharge
of Liabilities.  Following the
Closing, Seller shall pay or discharge the Excluded Liabilities; provided this Section 8.8
shall not preclude Seller from contesting or challenging any Excluded
Liabilities that it determines in good faith are not obligations of Seller.


 


8.9                                 Financial
Statements.  Seller shall deliver:


 


(a)                                  at
Closing, the unaudited pro forma balance sheets of the Business as of December 31,
2004, 2003 and 2002 and the pro forma statements of operations and cash flow
for the twelve months then ended,  If
Closing shall occur on or before August 15th, at Closing,
Seller shall also deliver the unaudited pro forma balance sheets of the
Business as of  May 31, 2005 and the
pro forma statements of operations and cash flow for the five months then
ended.  If Closing shall occur after August 15th,
Seller shall also deliver the unaudited pro forma balance sheets of the
Business as of  June 30, 2005 and
the pro forma statements of operations and cash flow for the six months then
ended (such May or June financial statements, the “Interim
Financial Statements” and, together with the other financial statements
listed in this Section 8.9(a), collectively, the “Financial
Statements”).


 


(b)                                 as
soon as available, but in no event later than the earlier of 75 days after the
date hereof or sixty (60) days following the Closing Date, the unaudited pro
forma balance sheet of the Business as of the Closing Date and the pro forma
statements of operations and cash flow for the months in the fiscal year then
ended, prepared in accordance with GAAP applied on a basis consistent with the
Financial Statements, subject to the lack of the footnote disclosure otherwise
required by GAAP; and


 


(c)                                  as
soon as available, but in no event later than December 31, 2005, the
audited pro forma balance sheets of the Business as of December 31, 2003
and 2002 and the pro forma


 


36





















 


statements of operations and cash flow for the twelve months then
ended, prepared in accordance with GAAP applied on a basis consistent with the
Financial Statements.


 


ARTICLE 9


 


CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER


 


The
obligations of Buyer under this Agreement shall, at the option of Buyer, be
subject to the satisfaction, of the following conditions:


 


9.1                                 Representations
and Warranties.  The representations
and warranties of Seller set forth herein (i) that are qualified as to
materiality shall be true and correct both when made and at and as of the
Closing, as if made at and as of such time (except to the extent expressly made
as of an earlier date, in which case as of such date), and (ii) that are
not qualified as to materiality shall be true and correct both when made and at
and as of the Closing, as if made at and as of such time (except to the extent
expressly made as of an earlier date, in which case as of such date) in all
material respects.


 


9.2                                 Performance.  Seller shall have performed and complied
with, in all material respects, each agreement, covenant and obligation
required by this Agreement to be so performed or complied with by Seller at or
before the Closing.


 


9.3                                 Officer’s
Certificate.  Buyer shall have
received a certificate, dated as of the Closing Date, signed by an officer of
Seller, to the effect that the conditions set forth in Section 9.1
and Section 9.2 have been satisfied.


 


9.4                                 Orders
and Laws.  There shall not be in
effect on the Closing Date any Court Order, or Requirement of Law restraining,
enjoining or otherwise making unadvisable, undesirable or illegal or
prohibiting the consummation of any of the transactions contemplated by this
Agreement or that otherwise could reasonably be expected to result in a
material diminution of the benefits of the transactions contemplated by this
Agreement, and there shall not be pending or threatened on the Closing Date any
action or proceeding in, before or by any Governmental Body that could
reasonably be expected to result in the issuance of any such Court Order or the
enactment, promulgation or deemed applicability to Buyer, the Purchased Assets
or the transactions contemplated by this Agreement of any such Requirement of
Law.


 


9.5                                 Regulatory
Consents and Approvals.  All
consents, approvals and actions of, filings with and notices to any
Governmental Body necessary to permit Buyer and Seller to perform their
obligations under this Agreement and to consummate the transactions
contemplated hereby (i) shall have been duly obtained, made or given, (ii) shall
be in form and substance reasonably satisfactory to Buyer, (iii) shall not
be subject to the satisfaction of any condition that has not been satisfied or
waived and (iv) shall be in full force and effect, and all terminations or
expirations of waiting periods imposed by any Governmental Body necessary for
the consummation of the transactions contemplated by this Agreement shall have
occurred.


 


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9.6                                 Third
Party Consents.  All consents to the
performance by Buyer and Seller of their obligations under this Agreement or to
the consummation of the transactions contemplated hereby as are required under
any material Contract of Buyer or Seller as mutually agreed by Buyer and Seller
and set forth in Schedule 9.6: 
(i) shall have been obtained, (ii) shall be in form and
substance reasonably satisfactory to Buyer, (iii) shall not be subject to
the satisfaction of any condition that has not been satisfied or waived and (iv) shall
be in full force and effect.


 


9.7                                 Deliveries.  Seller shall have delivered to Buyer the
Seller Ancillary Agreements and all documents and agreements to be delivered by
Seller at or prior to Closing.


 


9.8                                 No
Material Adverse Effect.  There shall
not have been a change resulting in a Material Adverse Effect on the Business,
including its condition (financial or otherwise) or results of operations, or
of the Purchased Assets.


 


9.9                                 Real
Estate Matters.  Buyer and Seller
shall have reached mutual agreement on the terms of the Landlord Documents, the
Real Property Lease Assignments and all leases and subleases of the Leased Real
Property (including receipt of any consents from any lessors or sublessors).


 


9.10                           Loss
of Client(s).  Any current client or
group of clients which represents more than 5% of the revenues of the Business
shall have ceased to be a client of Seller.


 


9.11                           Employment
Agreements.  Buyer shall have entered
into Employment Agreements with the employees listed on Schedule 9.11.


 


9.12                           Key
Employees.  The employees listed on Schedule 9.12
shall have accepted employment with Buyer.


 


9.13                           Licenses.  Buyer and Seller shall have reached mutual agreement
on the terms of the License and the Trademark License.


 


9.14                           Transition
Services Agreement.  Buyer and Seller
shall have reached mutual agreement on the terms of the Transition Services
Agreement.


 


9.15                           Service
Bureau Agreement.  Buyer and Seller shall
have reached mutual agreement on the terms of the Service Bureau Agreement.


 


9.16                           Financial
Statements.  The Financial Statements
delivered to Buyer at the Closing shall be acceptable to Buyer, in Buyer’s
reasonable discretion.


 


ARTICLE 10


 


CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER


 


The
obligations of Seller under this Agreement shall, at the option of Seller, be
subject to the satisfaction, of the following conditions:


 


38





















 


10.1                           Representations
and Warranties. The representations and warranties of Buyer set forth
herein (i) that are qualified as to materiality shall be true and correct
both when made and at and as of the Closing, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of
such date), and (ii) that are not qualified as to materiality shall be
true and correct both when made and at and as of the Closing, as if made at and
as of such time (except to the extent expressly made as of an earlier date, in
which case as of such date) in all material respects.


 


10.2                           Performance.  Buyer shall have performed and complied with,
in all material respects, each agreement, covenant and obligation required by
this Agreement to be so performed or complied with by Buyer at or before the
Closing.


 


10.3                           Officer’s
Certificate.  Seller shall have
received a certificate, dated as of the Closing Date, signed by an officer of
Buyer, to the effect that the conditions set forth in Section 10.1
and Section 10.2 have been satisfied.


 


10.4                           Orders
and Laws.  There shall not be in
effect on the Closing Date any Court Order, or Requirement of Law restraining,
enjoining or otherwise making unadvisable, undesirable or illegal or
prohibiting the consummation of any of the transactions contemplated by this
Agreement, and there shall not be pending or threatened on the Closing Date any
action or proceeding in, before or by any Governmental Body that could
reasonably be expected to result in the issuance of any such Court Order or the
enactment, promulgation or deemed applicability to Seller, the Purchased Assets
or the transactions contemplated by this Agreement of any such Requirement of
Law.


 


10.5                           Regulatory
Consents and Approvals.  All
consents, approvals and actions of, filings with and notices to any
Governmental Body necessary to permit Buyer and Seller to perform their
obligations under this Agreement and to consummate the transactions
contemplated hereby (i) shall have been duly obtained, made or given, (ii) shall
not be subject to the satisfaction of any condition that has not been satisfied
or waived and (iii) shall be in full force and effect, and all
terminations or expirations of waiting periods imposed by any Governmental Body
necessary for the consummation of the transactions contemplated by this
Agreement shall have occurred.


 


10.6                           Deliveries.  Buyer shall have delivered to Seller the
Buyer Ancillary Agreements and all documents and agreements to be delivered by
Buyer at or prior to Closing.


 


10.7                           Real
Estate Matters  Buyer and Seller
shall have reached mutual agreement on the terms of all leases and subleases of
the Leased Real Property.


 


10.8                           Licenses.  Buyer and Seller shall have reached mutual
agreement on the terms of the License, the Software License Assignment and the
Trademark License.


 


10.9                           Transition
Services Agreement.  Buyer and Seller
shall have reached mutual agreement on the terms of the Transition Services
Agreement.


 


10.10                     Service
Bureau Agreement.  Buyer and Seller
shall have reached mutual agreement on the terms of the Service Bureau
Agreement.


 


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10.11                     No
Material Adverse Effect on Buyer . 
There shall not have been a Material Adverse Effect on Buyer.


 


ARTICLE 11


 


INDEMNIFICATION


 


11.1                           Indemnification
by Seller.  Seller will indemnify,
defend, save and hold harmless each Buyer Group Member from and against any and
all Losses and Expenses incurred by such Buyer Group Member in connection with
or arising from:


 


(a)                                  Any
non-compliance with or breach by Seller of any of its covenants in this
Agreement or in any Seller Ancillary Agreement;


 


(b)                                 Any
failure of Seller to perform any of its obligations in this Agreement or in any
Seller Ancillary Agreement;


 


(c)                                  Any
breach of any warranty or the inaccuracy of any representation of Seller
contained or referred to in this Agreement or in any certificate delivered by
or on behalf of Seller pursuant hereto, provided, however, that
for purposes of determining an inaccuracy in or breach of a representation or
warranty for purposes of an indemnification under this ARTICLE 11, the
representations and warranties in ARTICLE 5 shall be construed as if they
were not qualified by the terms “material”, “materiality” or Material Adverse
Effect;


 


(d)                                 Any
action, demand, proceeding, investigation or claim (whenever made) by any third
party (including Governmental Bodies) that, if successful, would give rise to
or evidence the existence of or relate to a misrepresentation or breach of any
of the representations and warranties or covenants of Seller in this Agreement
or in any Seller Ancillary Agreement;


 


(e)                                  Any
claim for payment of fees and/or expenses as a broker or finder in connection
with the origin, negotiation, execution or consummation of this Agreement based
upon any alleged agreement between the claimant and Seller;


 


(f)                                    Any
Excluded Liability; or


 


(g)                                 Any
claim or liability with respect to shipments loaded on or prior to the Closing
Date,


 


provided that, the foregoing notwithstanding, (i) Buyer
shall not be entitled to seek indemnification pursuant to Section 11.1(c) with
respect to any individual Loss or related group of Losses unless such Loss or
related group of Losses exceeds $50,000 and, together with all other such
Losses exceeds $250,000 and shall be entitled to indemnification thereunder
only for the amount of such excess and (ii) except for environmental
matters, Seller’s total obligations under Section 11.1(c) shall
not exceed $4,300,000.


 


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11.2                           Indemnification
by Buyer.  Buyer agrees to indemnify,
defend, save and hold harmless each Seller Group Member from and against any
and all Losses and Expenses incurred by such Seller Group Member in connection
with or arising from:


 


(a)                                  Any
non-compliance with or breach by Buyer of any of its covenants or agreements in
this Agreement or in any Buyer Ancillary Agreement;


 


(b)                                 Any
failure by Buyer to perform any of its obligations in this Agreement or in any
Buyer Ancillary Agreement;


 


(c)                                  Any
breach of any warranty or the inaccuracy of any representation of Buyer
contained or referred to in this Agreement or in any certificate delivered by
or on behalf of Buyer pursuant hereto, provided, however, that
for purposes of determining an inaccuracy in or breach of a representation or
warranty for purposes of an indemnification under this ARTICLE 11, the
representations and warranties in ARTICLE 6 shall be construed as if they
were not qualified by the terms “material”, “materiality” or Material Adverse
Effect;


 


(d)                                 Any
action, demand, proceeding, investigation or claim (whenever made) by any third
party (including Governmental Bodies) that, if successful, would give rise to
or evidence the existence of or relate to a misrepresentation or breach of any
of the representations and warranties or covenants of Buyer in this Agreement
or in any Buyer Ancillary Agreement;


 


(e)                                  Any
Assumed Liabilities; or


 


(f)                                    Any
claim or liability with respect to shipments loaded after the Closing Date,


 


provided that, the foregoing notwithstanding, (i) Seller
shall not be entitled to seek indemnification pursuant to Section 11.2(c) with
respect to any individual Loss or related group of Losses unless such Loss or
related group of Losses exceeds $50,000 and, together with all other such
Losses exceeds $250,000 and shall be entitled to indemnification thereunder
only for the amount of such excess and (ii) Buyer’s total obligations
under Section 11.2(c) shall not exceed $4,300,000.


 


11.3                           Indemnification
Procedures.


 


(a)                                  Any Person making a claim for indemnification pursuant to Section 11.1
or 11.2 above (an “Indemnified Party”) must give the Party from
whom indemnification is sought (an “Indemnifying Party”) written notice
of such claim describing such claim and the nature and amount of such Losses
(to the extent that the nature and amount of such Losses is known at such time)
(an “Indemnification Claim Notice”) as promptly as practicable after the
Indemnified Party learns of any action, lawsuit, proceeding, investigation or
other claim (a “Third Party Claim”) against or involving the Indemnified
Party by a Governmental Body or other third party or otherwise discovers the
liability, obligation or facts giving rise to such claim for indemnification;
provided that the failure to notify or delay in notifying an Indemnifying Party
will not relieve the Indemnifying


 


41





















 


Party of its obligations pursuant
to Sections 11.1 or 11.2, as applicable, except to the extent
that (and only to the extent that) such failure materially damaged such
party.  Subject to Section 11.3(e),
the Indemnifying Party shall have the right, upon written notice to the
Indemnified Party (the “Defense Notice”) within thirty (30) days after
receipt from the Indemnified Party of notice of such claim, which notice by the
Indemnifying Party shall specify the counsel it will appoint to defend such
claim (“Defense Counsel”), to conduct at its expense the defense against
such claim in its own name, or if necessary, in the name of the Indemnified
Party; provided that the Indemnifying Party acknowledges in writing and
without qualification its indemnification obligations under this Agreement; provided,
further, that the Indemnified Party shall have the right to approve the
Defense Counsel, which approval shall not be unreasonably withheld or delayed,
and in the event the Indemnifying Party and the Indemnified Party cannot agree
upon such counsel within five (5) days after the Defense Notice is
provided, then the Indemnifying Party shall propose an alternate Defense
Counsel, which shall be subject again to the Indemnified Party’s approval as
provided in this Section 11.3(a). 
The Indemnifying Party shall be liable for the reasonable fees and
expenses of counsel employed by the Indemnified Party for any period during
which the Indemnifying Party has not assumed the defense of any such Third
Party Claim in accordance with this Section 11.3(a).


 


(b)                                 In the event that the Indemnifying Party shall fail to give
the Defense Notice, it shall be deemed to have elected not to conduct the
defense of the subject claim, and in such event the Indemnified Party shall
have the right to conduct such defense and to compromise and settle the claim
without prior consent of the Indemnifying Party, but shall reserve its right to
indemnification from the Indemnifying Party hereunder.


 


(c)                                  In the event that the Indemnifying Party does deliver a
Defense Notice and thereby elects to conduct the defense of the subject claim,
the Indemnifying Party shall have the right to conduct such defense and, except
as provided in Section 11.3(d) below, to settle the claim
without the prior consent of the Indemnified Party.  The Indemnified Party will cooperate with and
make available to the Indemnifying Party such assistance and materials as the
Indemnifying Party may reasonably request, all at the expense of the
Indemnifying Party, and the Indemnified Party shall have the right at its
expense to participate in the defense assisted by counsel of its own choosing,
provided that the Indemnified Party shall have the right to compromise and
settle the claim only with the prior written consent of the Indemnifying Party,
which consent shall not be unreasonably withheld or delayed.


 


(d)                                 No Indemnifying Party shall consent to the entry of any
judgment or enter into any settlement without the prior written consent of the
Indemnified Party (A) if such judgment or settlement does not include as
an unconditional term thereof the giving by each claimant or plaintiff to each
Indemnified Party which is subject to the applicable claim, or a party to the
applicable action or proceeding, of a release from all liability in respect to
such claim, (B) if such judgment or settlement would result in the finding
or admission of any violation of Law against an Indemnified Party, or (C) if
as a result of such consent or settlement, injunctive or other equitable relief
would be imposed against


 


42





















 


the Indemnified Party or such
judgment or settlement would interfere with or adversely affect the lawful
business, operations or assets of the Indemnified Party.


 


(e)                                  The Indemnifying Party shall not be entitled to control, and
the Indemnified Party shall be entitled to have sole control over, the defense
or settlement of any claim (and the reasonable cost of such defense and any
Losses with respect to such claim shall constitute an amount for which the
Indemnified Party is entitled to indemnification hereunder) if (A) the
claim for indemnification is with respect to a criminal proceeding, action, indictment,
allegation or investigation, (B) the Indemnified Party has been advised by
counsel that a reasonable likelihood exists of a conflict of interest between
the Indemnifying Party and the Indemnified Party, or (C) the claim seeks
an injunction or other equitable relief against the Indemnified Party or Buyer
or any Subsidiary of Buyer.


 


11.4                           Environmental
Response.  Notwithstanding anything
to the contrary in Section 11.1 or elsewhere in this Agreement, so
long as Seller acknowledges full responsibility for any Losses, Seller shall
determine the manner of resolution of, and shall otherwise control the
management and implementation of any part of the defense, response, proceedings
or settlement relating to any Losses for which Seller has an indemnity obligation
under Section 11.1, which involves or relates to the investigation,
study, sampling, testing, abatement, monitoring, cleanup, removal, remediation,
or other response action relating to the Release or presence of Contaminants
at, from, in, to, on, under, or about the Leased Real Property (“Environmental
Response Action”), in accordance with the following procedures:


 


(a)                                  Seller
shall provide written notice (each such notice an “Environmental Response
Action Notice”) to Buyer setting forth with reasonable particularity the
nature of the condition or event giving rise to the related Environmental
Response Action Notice, the nature of the activities undertaken or to be
undertaken by Seller with respect thereto (to the extent then determinable),
and the estimated cost associated with such activities (to the extent then
capable of being estimated).


 


(b)                                 Buyer
shall within 30 days after receipt of an Environmental Response Action Notice,
notify Seller in writing that Buyer, in whole or in part, approves or objects
to the Environmental Response Action set forth in the Environmental Response
Action Notice.  Buyer shall not
unreasonably withhold or delay its approval of the Environmental Response
Action set forth in such Environmental Response Action Notice.


 


(c)                                  If
Buyer notifies Seller that Buyer approves of all or part of the Environmental
Response Action set forth in the related Environmental Response Action Notice,
the Losses (or the part thereof so approved by Buyer) associated with the
Environmental Response Action shall be conclusively deemed Losses for which
Seller has an indemnity obligation and Seller shall pay the amount of such
Losses to Buyer on demand.


 


(d)                                 In
the event Buyer objects to all or any part of an Environmental Response Action
Notice on a timely basis in accordance with this Section 11.4, in
whole or in part,


 


43





















 


then Buyer shall notify Seller in writing of its specific disagreement
(and the basis therefor) regarding such Environmental Response Action.  If Buyer’s objection relates to the nature of
the proposed activities or response of Seller to the relevant condition or
event, then Buyer shall provide an alternative proposal describing in
reasonable detail the proposed activities or response, including estimated
costs associated therewith (“Dispute Notification”), within 30 days of
its receipt of the related Environmental Response Action Notice.  Seller and Buyer shall thereafter negotiate
in good faith in an attempt to reach agreement as to the disputed Environmental
Response Action Notice and the Dispute Notification. In the event that Seller
and Buyer are unable to resolve the dispute within 30 days, either party may
initiate legal proceedings to resolve the dispute.


 


11.5                           Survival
of Obligations.  All representations,
warranties, covenants and obligations contained in this Agreement shall survive
the consummation of the transactions contemplated by this Agreement
indefinitely, provided that (i) the representations and warranties
contained in Sections 5.4, 5.6, 5.7 (except as to title to
the Purchased Assets), 5.8 (except as to title to the Tangible Personal
Property), 5.9, 5.10, 5.12 and 5.14 through 5.24
shall survive for a period of twenty (20) months following the Closing Date, (ii) the
representations and warranties set forth in Sections 5.11 and 5.13 shall survive until the applicable statute
of limitations has run (including any valid extension) plus 90 days and (iii) the
representations and warranties contained in Section 5.5 shall survive
until the later of (x) 90 days after the applicable statute of limitations on
assessment or refund of Tax has expired or (y) the date on which the applicable
taxable year (or portion thereof) has been closed, except that the
representations and warranties referred to in (i), (ii) or (iii) will
continue to survive if an Indemnification Claim Notice shall have been given
under Section 11.3 on or prior to such termination date, until the
related claim for indemnification has been satisfied or otherwise resolved.


 


11.6                           Exclusive
Remedy.  After the Closing, the
indemnification provisions contained in Sections 11.1 and 11.2
shall, absent fraud or intentional acts, be the sole and exclusive remedy of
the Indemnified Party against the Indemnifying Party.


 


ARTICLE 12


 


TERMINATION


 


12.1                           Termination.  Anything contained in this Agreement to the
contrary notwithstanding, this Agreement may be terminated at any time prior to
the Closing Date:


 


(a)                                  by
the written consent of all the parties hereto;


 


(b)                                 by
any party hereto if the Closing shall not have occurred on or before August 31,
2005 (or such later date as may be mutually agreed to by Buyer and Seller);


 


(c)                                  by
Buyer if (provided that Buyer is not then in material breach of any
representation, warranty, covenant or other agreement contained herein):


 


(i)                                     any
representation or warranty of Seller set forth herein (A) that is
qualified as to materiality shall not be true and correct both when made and at
and


 


44





















 


as of the date
of termination, as if made at and as of such time (except to the extent
expressly made as of an earlier date, in which case as of such date), or (B) that
is not qualified as to materiality shall not be true and correct both when made
and at and as of the date of termination, as if made at and as of such time
(except to the extent expressly made as of an earlier date, in which case as of
such date), in each case, in any material respect; provided that such failure
to be true and correct is not cured, or is incapable of being cured, within 15
days after the receipt by Seller of written notice of such failure;


 


(ii)                                  Seller
shall have failed to perform in any material respect any obligation required to
be performed by them at or prior to the Closing Date under this Agreement,
which failure to perform has not been cured within fifteen (15) days following
receipt by Seller of notice of such failure to perform;


 


(d)                                 by
Seller if (provided that Seller is not then in material breach of any
representation, warranty, covenant or other agreement contained herein):


 


(i)                                     any
representation or warranty of Buyer set forth herein (i) that is qualified
as to materiality shall not be true and correct both when made and at and as of
the date of termination, as if made at and as of such time (except to the
extent expressly made as of an earlier date, in which case as of such date), or
(ii) that is not qualified as to materiality shall not be true and correct
both when made and at and as of the date of termination, as if made at and as
of such time (except to the extent expressly made as of an earlier date, in
which case as of such date), in each case, in any material respect; provided
that such failure to be true and correct is not cured, or is incapable of being
cured, within fifteen (15) days after the receipt by Buyer of written notice of
such failure; or


 


(ii)                                  Buyer
shall have failed to perform in any material respect any obligation required to
be performed by it at or prior to the Closing Date under this Agreement, which
failure to perform has not been cured within fifteen (15) days following
receipt by Buyer of notice of such failure to perform;


 


(e)                                  by
any party hereto if any Governmental Body shall have issued an order, decree or
ruling or taken any other action permanently restraining, enjoining or
otherwise prohibiting the consummation of the transactions contemplated hereby.


 


12.2                           Notice
of Termination.  Any party desiring
to terminate this Agreement pursuant to Section 12.1 shall give
written notice of such termination to the other parties to this Agreement.


 


12.3                           Effect
of Termination.  In the event that
this Agreement shall be terminated pursuant to this ARTICLE 12, all
further obligations of the parties under this Agreement shall be terminated
without further liability of any party to the other, except as arising under Section 13.12
(which shall survive termination) and for liability for any breach of this
Agreement.  Nothing herein shall relieve
any party from liability for its breach of this Agreement or its


 


45





















 


obligations to comply with the confidentiality agreement and binding
provisions of the letter agreement dated April 15, 2005 between Lake
Capital Management, LLC and Seller.


 


ARTICLE 13


 


GENERAL PROVISIONS


 


13.1                           Notices.  All notices or other communications required
or permitted hereunder shall be in writing and shall be deemed given or
delivered when delivered personally or by registered or certified mail or by
private courier addressed as follows:


 


	
  If to Buyer, to:

  	
   

  	
  NAL Worldwide LLC

  
	
   

  	
   

  	
  676 North Michigan Avenue

  
	
   

  	
   

  	
  Suite 3900

  
	
   

  	
   

  	
  Chicago, Illinois  60611

  
	
   

  	
   

  	
  Attention:

  	
  Paul G. Yovovich

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  Skadden, Arps, Slate, Meagher &
  Flom LLP

  
	
   

  	
   

  	
  333 West Wacker Drive

  
	
   

  	
   

  	
  Suite 2100

  
	
   

  	
   

  	
  Chicago, Illinois  60606

  
	
   

  	
   

  	
  Attention:

  	
  Kimberly A. deBeers, Esq.

  
	
   

  	
   

  	
   

  	
  Peter C. Krupp, Esq.

  
	
   

  	
   

  	
   

  
	
  If to
  Seller, to:

  	
   

  	
  North
  American Van Lines, Inc.

  
	
   

  	
   

  	
  c/o SIRVA, Inc.

  
	
   

  	
   

  	
  700 Oakmont Lane

  
	
   

  	
   

  	
  Westmont, IL 60559

  
	
   

  	
   

  	
  Attention:

  	
  John M. Dupuy

  
	
   

  	
   

  	
   

  
	
  with a copy to:

  	
   

  	
  SIRVA, Inc.

  
	
   

  	
   

  	
  700 Oakmont Lane

  
	
   

  	
   

  	
  Westmont, IL 60559

  
	
   

  	
   

  	
  Attention:

  	
  General Counsel

  
					



 


or to such
other address as such party may indicate by a notice delivered to the other
party hereto.  Date of service of such
notice shall be (x) the date the notice is personally delivered, (y) three days
(3) days after the date of mailing if sent by certified or registered
mail, or (z) one (1) day after date of delivery to the overnight
courier if sent by overnight courier.


 


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13.2                           Successors
and Assigns.


 


(a)                                  The
rights of either party under this Agreement shall not be assignable by such
party hereto prior to the Closing without the written consent of the other,
except that Buyer may make a collateral assignment of its rights under this
Agreement to its lenders.


 


(b)                                 The
rights of either party under this Agreement shall not be assignable by such
party hereto following the Closing without the written consent of the other,
except that (i) Buyer may make a collateral assignment of its rights under
this Agreement to its lenders, (ii) Buyer may assign its rights and delegate its responsibilities,
liabilities and obligations under this Agreement to any purchaser of all or
substantially all of the assets of Buyer and (iii) either party may assign
its rights and delegate its responsibilities, liabilities and obligations under
this Agreement to one or more of its Affiliates, provided, however, that Seller
shall remain liable for its obligations under this Agreement indefinitely and
Buyer shall remain liable for its obligations under this Agreement for twenty
months following the Closing Date.


 


(b)                                 This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their successors and permitted assigns. 
Nothing in this Agreement, expressed or implied, is intended or shall be
construed to confer upon any Person other than the parties and their successors
and assigns permitted by this Section 13.2 any right, remedy or
claim under or by reason of this Agreement.


 


13.3                           Access
to Records after Closing.  For a
period of six years after the Closing Date, Seller and its Representatives
shall have reasonable access to all of the books and records of Seller
transferred to Buyer hereunder to the extent that such access may reasonably be
required by Seller in connection with matters relating to or affected by the
operations of the Business prior to the Closing Date.  Such access shall be afforded by Buyer upon
receipt of reasonable advance notice and during normal business hours.  Seller shall be solely responsible for any
costs or expenses incurred by it pursuant to this Section 13.3.  If Buyer shall desire to dispose of any of
such books and records prior to the expiration of such six-year period, Buyer
shall, prior to such disposition, give Seller a reasonable opportunity, at
Seller’s expense, to segregate and remove such books and records as Seller may
select.


 


For a period
of six years after the Closing Date, Buyer and its representatives shall have
reasonable access to all of the books and records relating to the Business that
Seller or any of its Affiliates may retain after the Closing Date.  Such access shall be afforded by Seller and
its Affiliates upon receipt of reasonable advance notice and during normal
business hours.  Buyer shall be solely
responsible for any costs and expenses incurred by it pursuant to this Section 13.3.  If Seller or any of its Affiliates shall
desire to dispose of any of such books and records prior to the expiration of
such six-year period, Seller shall, prior to such disposition, give Buyer a
reasonable opportunity, at Buyer’s expense, to segregate and remove such books
and records as Buyer may select.


 


13.4                           Entire
Agreement; Amendments.  This
Agreement and the Exhibits and Schedules referred to herein and the documents
delivered pursuant hereto contain the entire understanding of the parties
hereto with regard to the subject matter contained herein or therein, and
supersede


 


47





















 


all prior agreements, understandings or letters of intent between or
among any of the parties hereto, including that certain letter agreement dated April 15,
2005 between Buyer and Seller (other than the binding provisions thereof).  This Agreement shall not be amended, modified
or supplemented except by a written instrument signed by an authorized
representative of each of the parties hereto.


 


13.5                           Interpretation.  Article titles and headings to sections
herein are inserted for convenience of reference only and are not intended to
be a part of or to affect the meaning or interpretation of this Agreement.  The Schedules and Exhibits referred to herein
shall be construed with and as an integral part of this Agreement to the same
extent as if they were set forth verbatim herein.


 


13.6                           Waivers.  Any term or provision of this Agreement may
be waived, or the time for its performance may be extended, by the party or
parties entitled to the benefit thereof. 
Any such waiver shall be validly and sufficiently authorized for the
purposes of this Agreement, as to any party, only if it is authorized in
writing by an authorized representative of such party.  The failure of any party hereto to enforce at
any time any provision of this Agreement shall not be construed to be a waiver
of such provision, nor in any way to affect the validity of this Agreement or
any part hereof or the right of any party thereafter to enforce each and every
such provision.  No waiver of any breach
of this Agreement shall be held to constitute a waiver of any other or
subsequent breach.


 


13.7                           Partial
Invalidity.  Wherever possible, each
provision hereof shall be interpreted in such manner as to be effective and
valid under applicable law, but in case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such provision shall be ineffective to the
extent, but only to the extent, of such invalidity, illegality or
unenforceability without invalidating the remainder of such invalid, illegal or
unenforceable provision or provisions or any other provisions hereof, unless
such a construction would be unreasonable.


 


13.8                           Execution
in Counterparts.  This Agreement may
be executed in one or more counterparts, each of which shall be considered an
original instrument, but all of which shall be considered one and the same
agreement, and shall become binding when one or more counterparts have been
signed by each of the parties hereto and delivered to each of the parties
hereto.


 


13.9                           Further
Assurances.  On the Closing Date
Seller and its Affiliates shall (i) deliver to Buyer such other bills of
sale, deeds, endorsements, assignments and other good and sufficient
instruments of conveyance and transfer, in form reasonably satisfactory to
Buyer and its counsel, as Buyer may reasonably request or as may be otherwise
reasonably necessary to vest in Buyer all the right, title and interest in, to
or under any or all of the Purchased Assets, and (ii) take all steps as
may be reasonably necessary to put Buyer in actual possession and control of
all the Purchased Assets.  From time to
time following the Closing, Seller shall execute and deliver, or cause to be
executed and delivered, to Buyer such other instruments of conveyance and
transfer as Buyer may reasonably request or as may be otherwise necessary to
more effectively convey and transfer to, and vest in, Buyer and put Buyer in
possession of, any part of the Purchased Assets, and, in the case of licenses,
certificates, approvals, authorizations, agreements, contracts,


 


48





















 


leases, easements and other commitments included in the Purchased
Assets that cannot be transferred or assigned effectively without the consent
of third parties which consent has not been obtained prior to the Closing, to
cooperate with Buyer at its reasonable request in endeavoring to obtain such
consent promptly, at Buyer’s cost.


 


13.10                     Governing
Law.  This Agreement shall be
governed by and construed and enforced in accordance with, and all questions
concerning the construction, validity, interpretation and performance of this
Agreement shall be governed by, the internal laws (as opposed to the conflicts
of law provisions) of the State of Delaware.


 


13.11                     WAIVER
OF JURY TRIAL.  EACH PARTY HEREBY
WAIVES  (TO THE FULLEST EXTENT PERMITTED
BY LAW) ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.  THE PARTIES ACKNOWLEDGE THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO THIS AGREEMENT.  THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT
BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT
OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE TRANSACTIONS
CONTEMPLATED HEREBY.  IN THE EVENT OF
LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY
THE COURT.


 


13.12                     Payment
of Expenses.  Except as otherwise
expressly provided in this Agreement, whether or not the transactions contemplated
hereby are consummated, each party will pay its own costs and expenses incurred
in connection with the negotiation and execution of this Agreement and the
closing of the transactions contemplated hereby.


 


13.13                     No
Strict Construction.  The language
used in this Agreement shall be deemed to be the language chosen by the parties
hereto to express their mutual intent, and no rule of strict construction
will be applied against any person.  The
use of the word “including” in this Agreement or in any of the agreements
contemplated hereby shall be by way of example rather than by limitation.


 


13.14                     Right
to Set-off.  Notwithstanding anything
to the contrary contained herein or in any agreement contemplated hereby, at
any time after a final judgment or award or the entering into of a settlement
agreement entitling Buyer to indemnification hereunder, Buyer, at its election,
shall have the right to withhold and setoff against any amount or consideration
due Seller under this Agreement, the amount of any claim for indemnification or
payment of damages or any other amount to which Buyer may be entitled under
this Agreement, the agreements contemplated hereby or any other agreement
between Buyer, on the one hand, and Seller, on the other hand.


 


* * * * *


 


[Signatures Follow.]


 


49





















 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed and
delivered as of the day and year first above written.


 


 


	
   

  	
  NORTH AMERICAN VAN LINES, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ JOHN M. DUPUY

  	
   

  
	
   

  	
   

  	
  Its     President, Specialized
  Transportation and

  Corporate Development

  
	
   

  	
   

  	
   

  
	
   

  	
  NAL WORLDWIDE LLC

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/ EDWARD A. KOVAS

  	
   

  
					



 





















 


APPENDIX
A


 


DEFINITIONS


 


For purposes
of this Agreement, the following terms and variations thereof have the meanings
specified or referred to in this APPENDIX A.  Any agreement referred to below shall mean
such agreement as amended, supplemented and modified from time to time to the
extent permitted by the applicable provisions thereof and by this Agreement.


 


“Accountants”
has the meaning specified in Section 4.5(b).


 


“Accounts
Receivable” has the meaning specified in Section 2.2(c).


 


“Affiliate”
means, with respect to any Person, (i) any other Person which directly or
indirectly through one or more intermediaries controls, is controlled by or is
under common control with such Person, except that with respect to Seller, no
Person that acquires any interest in Buyer shall be deemed to be an Affiliate
of Seller.  For purposes of this
definition, control of a Person means the power, direct or indirect, to direct
or cause the direction of the management and policies of such Person whether by
Contract or otherwise and, in any event and without limitation of the previous
sentence, any Person owning 50% or more of the voting securities of a second
Person shall be deemed to control that second Person.


 


“Affiliated
Group” means an affiliated group as defined in Section 1504 of the
Code (or any analogous combined, consolidated or unitary group defined under
state, local or foreign income Tax law).


 


“Agreement”
has the meaning specified in the first paragraph of this Agreement.


 


 “AMS” means the Asset Management System
module of the COLT software included in Purchased Assets.


 


 “Assigned Real Property Leases” means
the leases of real property identified on EXHIBIT A
 as the “Assigned Real
Property Leases”.


 


“Assignment
and Bill of Sale” has the meaning specified in Section 4.4(c).


 


“Assumed
Liabilities” has the meaning specified in Section 2.3.


 


“Assumption
Agreement” has the meaning specified in Section 4.3(c).


 


 “Benefit Plan” means any “employee
benefit plans” (within the meaning of Section 3(3) of ERISA) and all
other employee benefit plans, agreements, programs, policies and other
arrangements, including, without limitation, retirement, savings, stock
purchase, stock option, severance, employment, change-in-control, fringe
benefit, collective bargaining, bonus, incentive and deferred compensation
plans, maintained or contributed to by Seller or any ERISA Affiliate of Seller,
under which any employee or former employee of the Business, or of Seller or
any Affiliate of Seller who is engaged in the operation of the Business, has
any present or future right to benefit, in each case existing at the Closing
Date or during the five-year period prior thereto.


 


i





















 


“Business”
means third-party logistics services business, including inventory management
solutions and transportation management in the United States and Canada.


 


“Business
Employees” has the meaning specified in Section 5.11(a).


 


 “Buyer” has the meaning specified in
the first paragraph of this Agreement.


 


“Buyer
Ancillary Agreements” means all agreements, instruments and documents being
or to be executed and delivered by Buyer under this Agreement or in connection
with the transactions contemplated hereby.


 


“Buyer
Group Member” means Buyer and its Affiliates, directors, officers,
employees, and agents and their respective successors and assigns.


 


“Buyer SFAs”
has the meaning specified in Section 8.2(o).


 


“CDS”
means the Cross Dock System module of the COLT software that is a derivative of
PTS and is included in Purchased Assets.


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. § 9601 et seq, as
amended.


 


“Closing”
has the meaning specified in Section 4.1.


 


“Closing
Date” has the meaning specified in Section 4.1.


 


“Code”
means the Internal Revenue Code of 1986, as amended and supplemented from time
to time, or any successors thereto.


 


“Commitment”
has the meaning specified in Section 6.4.


 


“Confidential
Information” has the meaning specified in Section 8.6.


 


 “Contaminant” means any Hazardous
Substance as defined in 42 U.S.C. § 9601(14), “Hazardous Waste” as defined
in 40 C.F.R. Part 261, petroleum including crude oil or any fraction
thereof, any radioactive material, including, without limitation, any source,
special nuclear or by-product material as defined in 42 U.S.C. § 2011 et
seq and asbestos in any form or condition or any other substance that is
regulated pursuant to Environmental Law.


 


“Contract”
means, with respect to any Person, any indentures, indebtedness, contracts,
leases, agreements, instruments, licenses, undertakings and other commitments,
whether written or oral, to which such Person is a party or by which such
Person or such Person’s properties are bound.


 


“Court
Order” means any judgment, order, award or decree of any foreign, federal,
state, local or other court or tribunal or any other Governmental Body and any
award in any arbitration proceeding.


 


ii





















 


“Credit
Agreement” means the Credit Agreement, dated as of December 1, 2003,
among SIRVA Worldwide, Inc., the foreign subsidiary borrowers from time to
time parties thereto, the several lenders from time to time parties thereto,
JPMorgan Chase Bank, as administrative agent, Banc of America Securities LLC,
as syndication agent, and Credit Suisse First Boston, Deutsche Bank Securities, Inc.
and Goldman Sachs Credit Partners L.P. as documentation agents.


 


“Defense
Counsel” has the meaning specified in Section 11.3(a).


 


 “Defense Notice” has the meaning
specified in Section 11.3(a).


 


 “Disclosure Schedule” has the meaning
specified in the first paragraph of ARTICLE 5.


 


 “Dispute Notification” has the meaning
specified in Section 11.4(d).


 


“Encumbrance”
means any lien (including any Tax lien), claim, encumbrance, charge, security
interest, mortgage, pledge, easement, option, deed of trust, right of way,
conditional sale or other title retention agreement, defect in title, covenant
or any other restriction of any kind or nature.


 


“Environmental
Law” means all Requirements of Law derived from CERCLA, RCRA, the Clean Air
Act § 741 et seq. and the
Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 – 137 or any other
Requirement of Law concerning pollution, the environment or human health.


 


“Environmental
Response Action” shall have the meaning specified in Section 11.4.


 


“Environmental
Response Action Notice” shall have the meaning specified in Section 11.4(a).


 


“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended.


 


“ERISA
Affiliate” means any trade or business, whether or not incorporated, that
together with Seller would be deemed a “single employer” within the meaning of Section 4001(b) of
ERISA.


 


“Excluded
Assets” has the meaning specified in Section 2.2.


 


“Excluded
Liabilities” has the meaning specified in Section 2.4.


 


“Expenses”
means any and all costs, fees and expenses incurred in connection with investigating,
defending or asserting any claim, action, suit or proceeding incident to any
matter indemnified against hereunder (including, without limitation, court
filing fees, court costs, arbitration fees or costs, witness fees, and
reasonable fees and disbursements of legal counsel, paralegals, investigators,
expert witnesses, accountants and other professionals) and shall include those
incurred in connection with the enforcement of this Agreement, including
without limitation the indemnification provisions of ARTICLE 11.


 


“Financial
Statements” has the meaning specified in Section 8.9(a).


 


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“Flatbed”
means Seller’s North American flatbed division, including its successors and
assigns.


 


“Fort Wayne Lease” means a lease agreement in a form reasonably
acceptable to both parties, pursuant to which Seller shall lease to Buyer a
portion of the premises owned by Seller and located at 5001 US Highway 30 West,
Fort Wayne, Indiana;


 


“GAAP”
means generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board (or any successor authority) that are
applicable as the date of determination.


 


“Gainey
Agreement” means the Asset Purchase Agreement dated as of April 29,
2005, by and between Gainey Transportation Services, Inc. and North
American Van Lines, Inc.


 


“Governmental
Body” means any foreign, federal, state, local or other governmental
authority, regulatory body, commission board or department.


 


“Hire Date”
has the meaning specified in Section 8.2(b).


 


“Indemnified
Party” has the meaning specified in Section 11.3(a).


 


“Indemnification
Claim Notice” has the meaning specified in Section 11.3(a).


 


“Indemnifying
Party” has the meaning specified in Section 11.3(a).


 


“Intellectual
Property” means all of the following owned by, issued to, or licensed to
Seller or its Affiliates used in connection with or relating to the operation
of the Business, along with all associated income, royalties, damages and
payments due from or payable by any third party (including, without limitation,
damages and payments for past, present, or future infringements or
misappropriations thereof), all other associated rights (including, without
limitation, the right to sue and recover for past, present, or future
infringements or misappropriations thereof), and any and all corresponding
rights that, now or hereafter, may be secured throughout the United States of
America and Canada: (i) patents, patent applications, patent disclosures
and inventions (whether or not patentable and whether or not reduced to
practice) and any reissues, continuations, continuations-in-part, divisions,
extensions or reexaminations thereof; (ii) trademarks, service marks,
trade dress, logos, slogans, domain names, trade names, corporate names and
business names and any derivation of any of the foregoing (but excluding any
such names that constitute Excluded Assets as specified in Section 2.2)
and all registrations and applications for registration thereof, together with
all goodwill associated therewith; (iii) copyrights and works of
authorship, and all registrations and applications for registration thereof; (iv) computer
software (including, without limitation, data, data bases and related
documentation); (v) trade secrets, confidential information, and
proprietary data and information (including, without limitation, compilations
of data (whether or not copyrighted or copyrightable), ideas, formulae,
processes, know-how, techniques, research and development information,
drawings, specifications, designs, plans, improvements, proposals, technical
data, financial and accounting data, business and marketing plans, and customer
and supplier lists and related information); (vi) all other intellectual
property rights; and (vii) all


 


iv





















 


copies and tangible embodiments of the foregoing (in whatever form or
medium), including, without limitation, in the case of each of the foregoing
items (i) through (vi), the items set forth in Schedule 5.9
attached hereto.


 


“Landlord
Documents” means, collectively, (i) estoppel certificates executed by
each of the landlords under the Assigned Real Property Leases in a form
reasonably acceptable to the Buyer and (ii) non-disturbance agreements
executed by each of the landlords under the Real Property Leases for the real
property to be subleased by Seller to Buyer pursuant to the Real Property
Subleases in a form reasonably acceptable to the Buyer.


 


“Leased
Real Property” shall mean the real property leased under the Assigned Real
Property Leases, the Real Property Subleases and the Fort Wayne Lease.


 


“Leave
Status Employees” has the meaning specified in Section 8.2(b).


 


“Legal
Proceeding” shall mean any action, suit, arbitration, claim or
investigation by or before any Governmental Body, any arbitration or
alternative dispute resolution panel, or any other legal, administrative or
other proceeding.


 


“License”
has the meaning specified in Section 4.3(h).


 


 “Logistics Facilities” means the Leased
Real Property consisting of the logistics center facilities utilized by Seller
for the Business and located at (i) 1485 Westlake Parkway, Atlanta,
Georgia, (ii) 2043 Corporate Lane, Unit A, Naperville, Illinois, (iii) 1000
N. 27th Street, Dallas, Texas, (iv) 13021 Leffingwell Road,
Santa Fe Springs, California, (v) 6 Fitzgerald Avenue, Monroe Township,
New Jersey, (vi) 1710 Little Orchard, San Jose, California, (vii) 2110
Cloverleaf Street, Columbus Ohio, (viii) 44380-44384 Old Warm Springs
Blvd., Fremont, California, (ix) 120281 Leffingwell, Santa Fe Springs,
California, (x) 1551 Perry Road, Plainfield, Indiana, (xi)3100 40th
Ave NW, Rochester, Minnesota, (xii) 2303 John Glenn Ave, Columbus, Ohio and
(xxiii) 44400/44320 Osgood Road, Fremont, California


 


“Losses”
means any and all losses, costs, obligations, liabilities, settlement payments,
awards, judgments, fines, damages, expenses, demands, claims, suits, actions,
causes of action, assessments, deficiencies, actual or punitive damages or
costs or expenses of any and all investigations, proceedings, judgments,
environmental analyses, remediations, settlements and compromises (together
with interest and penalties thereon, if any).


 


“Material
Adverse Effect” means, with respect to Seller, an effect that (i) is
materially adverse to the value of all or any material part of the Purchased
Assets or materially adverse to the business, liabilities, properties,
condition (financial or otherwise), operations, prospects or results of
operations, cash flows or employee, client or customer relations of all or any
material part of the Business or (ii) could reasonably be expected to
impair the ability of Seller to consummate the transactions contemplated by
this Agreement.  The terms “material” and
“Material Adverse Effect” shall be deemed to exclude the impact of changes in
general economic conditions, interest rates or conditions affecting industry
generally so long as the Business operated by Seller’s SIRVA Logistics division
is not disproportionately impacted.  With
respect to Buyer, Material Adverse Effect means an effect that could reasonably
be expected to impair the ability of Buyer to consummate the transactions
contemplated by this Agreement.


 


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“New Party”
means any acquisition target, client, customer or supplier of the Buyer that
Buyer establishes a relationship with after the Closing Date and with which the
Business operated as SIRVA Logistics in the twelve months prior to the Closing
did not have a relationship.


 


“Non-Asset
Based” means the provision of transportation services by someone not acting
as a motor carrier or using its van line agents that are part of Seller’s
transportation network.


 


“Organizational
Documents” means (i) the articles or certificate of incorporation and
the bylaws of a corporation; (ii) the partnership agreement and any
statement of partnership of a general partnership; (iii) the limited
partnership agreement and the certificate of limited partnership of a limited
partnership; (iv) the articles of formation or organization and operating
agreement or limited liability company agreement of a limited liability
company; (v) any charter or similar document adopted or filed in
connection with the creation, formation or organization of a Person; and (vi) any
amendment to any of the foregoing.


 


“Permits”
has the meaning specified in Section 5.16.


 


 “Permitted Encumbrances” means (i) liens
securing Taxes, assessments, governmental charges and levies, or the claims of
materialmen, mechanics, carriers, landlords and like persons, in any such case
which are not yet due and payable or are being contested in good faith through
appropriate proceedings and for which adequate reserves are maintained, (ii) unperfected
security interests retained by sellers of goods to secure the purchase price of
such goods to the extent the obligation to pay such purchase price constitutes
a trade account payable, (iii) liens set forth in Schedule 5.6
and (iv) other liens arising in the ordinary course of business and not
incurred in connection with borrowing money that would not be reasonably
expected to give rise to a Material Adverse Effect.


 


“Person”
means any individual, sole proprietorship, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization or Governmental Body.


 


“Proceeding”
has the meaning specified in Section 11.3(a).


 


“Projections”
has the meaning specified in Section 5.4(b).


 


“Projects”
has the meaning specified in Section 5.18.


 


“PTS”
means the Product Tracking System module of the COLT software included in
Purchased Assets.


 


“Purchase
Price” has the meaning specified in Section 3.1.


 


“Purchased
Assets” has the meaning specified in Section 2.1.


 


“RCRA”
means the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.


 


vi





















 


“Real
Property Lease Assignments” means assignment agreements with respect to
each of the Assigned Real Property Leases, each in a form reasonably acceptable
to both parties.


 


“Real
Property Lease” means any lease or sublease of real property pursuant to
which Seller or any of its Affiliates lease or sublease real property used by
Seller or any of its Affiliates in connection with, or related to, the
Business.


 


“Real
Property Subleases” means sublease agreements, each of which shall be in a
form reasonably acceptable to both parties and shall include the respective
major terms set forth on EXHIBIT E,
pursuant to which Seller shall sublease to Buyer a portion of (i) the
Westmont Office Facility and (ii) the Logistics Facilities.


 


“Release”
means any “Release” of a “hazardous substance” as those terms are defined in
CERCLA.


 


“Requirement
of Law” means any applicable common law and any applicable foreign,
federal, state and local laws, statutes, regulations, rules, codes or
ordinances enacted, adopted, issued or promulgated by any Governmental Body.


 


“Representatives”
has the meaning specified in Section 7.3.


 


“Seller”
has the meaning specified in the first paragraph of this Agreement.


 


“Seller
Ancillary Agreements” means all agreements, certificates, instruments and
documents being or to be executed and delivered by Seller under this Agreement
or in connection with the transactions contemplated hereby.


 


“Seller
SFAs” has the meaning specified in Section 8.2(o).


 


“Seller’s
Knowledge” means the actual conscious knowledge of each of John M. Dupuy,
Anthony Pellegrino, Douglas E. Christensen, Victor Kaminski, Chris Stivers, Lee
Helmuth,  Cheryl Brand, Susan Hobson Kus
and Ann Harten.


 


“Service Bureau Agreement” has the meaning
specified in Section 4.3(j).


 


“Software”
means all computer software and subsequent versions thereof, including source
code, object, executable or binary code, objects, comments, screens, user
interfaces, report formats, templates, menus, buttons and icons and all files,
data, materials, manuals, design notes and other items and documentation
related thereto or associated therewith that are in the possession or under the
control of Seller.


 


“Software
License Assignment” has the meaning set forth in Section 4.3(g).


 


“STI
Agreement” means the asset purchase agreement between Seller and
Specialized Transportation Agent Group, Inc., d/b/a Specialized
Transportation, Inc., dated as of September 9, 2004.


 


“Tangible
Personal Property” has the meaning specified in Section 2.1(b).


 


vii





















 


“Tangible Personal
Property Leases” has the meaning specified in Section 2.1(c).


 


 “Tax” means (a) any federal,
state, local or foreign net income, alternative or add-on minimum, gross
income, gross receipts, property, sales, use, transfer, gains, license, excise,
estimated, employment, payroll, or other withholding or minimum tax, or any
other tax, custom, duty, governmental fee, or other like assessment, or charge
of any kind whatsoever, together with any interest or any penalty, addition to
tax or additional amount imposed by any Governmental Body; (b) any
liability of Seller for the payment of any amounts of the type described in the
foregoing clause (a) as a result of any express or implied obligation to
indemnify or otherwise assume or succeed to the liability of any other Persons;
and (c) liability of Seller for the payment of any amounts described in
clause (a) arising as a result of being (or ceasing to be) a member of any
Affiliated Group (or being included (or required to be included) in any Tax
Return related thereto).


 


“Tax Return”
means any return, report or similar statement filed or required to be filed
with respect to any Taxes (including any related or supporting schedules,
statements or information), including, without limitation, any information
return, claim for refund, amended return and declaration of estimated Tax.


 


“Third
Party Claim” has the meaning specified in Section 11.3(a).


 


 “Trademark License” has the meaning
specified in Section 4.3(i).


 


 “Transitional Services Agreement” has
the meaning specified in Section 4.3(d).


 


 “Transfer Tax” means any sales Tax, use
Tax, real property transfer or gains Tax, documentary stamp Tax and any other
similar Tax.


 


“Transferred
Employees” has the meaning specified in Section 8.2(a).


 


“Treasury
Regulations” means the final and temporary (but not proposed) income tax
regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).


 


“WARN”
means the Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101,
et seq.


 


“Westmont
Office Facility” means the office facility leased by Seller at 700 Oakmont
Lane, Westmont, Illinois.


 


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