Exhibit A ASSIGNMENT AND ASSUMPTION

 

 

       OMGI SUB, LLC

 

 

                                                                        AND

 

                   ORION MARINE GROUP, INC., A <?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" />DELAWARE COPORATION

 

 

 

 

 

 

                                                                        AND

 

 

 

               february 29, 2008

 

ARTICLE 1.......... definitions..................................................................................... 1

 

ARTICLE 2.......... CLOSING............................................................................................. 1

 

ARTICLE 3.......... THE TRANSACTION.......................................................................... 1

 

3.1...... Assets.......................................................................................................... 1

 

3.2...... Purchase Price............................................................................................. 1

 

3.3...... Assumed Liabilities....................................................................................... 3

 

3.4...... Excluded Liabilities....................................................................................... 4

 

ARTICLE 4.......... REPRESENTATIONS AND WARRANTIES  of seller AND THE SHAREHOLDER.............................................................................................................. 4

 

4.1...... Organization, Qualification and Corporate Power.......................................... 4

 

4.2...... Authorization of Transaction......................................................................... 4

 

4.3...... Non-contravention....................................................................................... 4

 

4.4...... Governmental Consent................................................................................. 5

 

4.5...... Stock Ownership; Other Interests................................................................. 5

 

4.6...... Financial Statements..................................................................................... 5

 

4.7...... Indebtedness; Undisclosed Liabilities............................................................ 6

 

4.8...... Inventory...................................................................................................... 6

 

4.9...... Recent Events.............................................................................................. 6

 

4.10.... Real Property............................................................................................... 7

 

4.11.... Tangible Personal Property........................................................................... 8

 

4.12.... Compliance with Laws................................................................................. 8

 

4.13.... Affiliate Agreements..................................................................................... 8

 

4.14.... Agreements, Encumbrances.......................................................................... 8

 

4.15.... Intellectual Property...................................................................................... 9

 

4.16.... Employee Benefits...................................................................................... 10

 

4.17.... Labor, Employee Relations......................................................................... 10

 

4.18.... Litigation.................................................................................................... 10

 

4.19.... Environmental Matters................................................................................ 11

 

4.20.... Tax Matters............................................................................................... 11

 

4.21.... Brokers Fees............................................................................................. 12

 

4.22.... Approvals and Consents............................................................................. 12

 

4.23.... Sufficiency of Assets................................................................................... 12

 

4.24.... Disclosures................................................................................................. 12

 

            4.25     Insurance Coverage……………………………………………………...13

 

 

 

ARTICLE 5.......... REPRESENTATIONS AND WARRANTIES of BUYER................ 13

 

5.1...... Organization............................................................................................... 13

 

5.2...... Authorization of Transaction....................................................................... 13

 

5.3...... Non-contravention..................................................................................... 13

 

5.4...... Broker’s Fees............................................................................................ 14

 

5.5...... Governmental Consent............................................................................... 14

 

ARTICLE 6.......... closing deliveries.................................................................... 14

 

6.1...... Deliveries by Seller at the Closing............................................................... 14

 

6.2...... Deliveries by Buyer at the Closing............................................................... 15

 

6.3...... Deliveries after Closing............................................................................... 15

 

ARTICLE 7.......... INDEMNIFICATION........................................................................ 15

 

7.1...... Indemnification by Seller and the Shareholder.............................................. 15

 

7.2...... Certain Limits on Indemnification by Seller; Offset....................................... 16

 

7.3...... Indemnification by Buyer............................................................................ 16

 

7.4       Certain Limits on Indemnification by Buyer.............................................16 

 

7.5       Matters Involving Third Parties………………………………………….17                 

 

          

 

ARTICLE 8.......... CERTAIN post-closing COVENANTS AND AGREEMENTS…………………………………………….............. 17

 

            8.1       Tax Allocation……………………………………………………...........17   

 

            8.2       Transfer Taxes……………………………………………………...........18

 

8.3...... Payroll Taxes............................................................................................. 18

 

8.4...... Certain Provisions Related to Consents....................................................... 18

 

8.5...... Post-Closing Assistance............................................................................. 19

 

8.6...... Buyer/Shareholder Confidentiality............................................................... 19

 

8.7...... Tax Return Cooperation............................................................................. 20

 

8.8...... Litigation Support....................................................................................... 20

 

8.9...... Books and Records.................................................................................... 20

 

8.10.... Receivables; Certain Payables.................................................................... 20

 

8.11.... Non-competition........................................................................................ 21

 

            8.12     Access and Reasonable Support…………………………………………22

 

 

 

ARTICLE 9.......... Employment................................................................................. 22

 

9.1...... Offer to hire............................................................................................... 22

 

9.2...... Terms of Employment................................................................................. 22

 

9.3...... Severance.................................................................................................. 22

 

9.4...... Health and Welfare Benefits........................................................................ 22

 

9.5...... Employee Benefit Plans.............................................................................. 23

 

9.6...... Wage Reporting......................................................................................... 23

 

            9.7       WARN Act………………………………………………………………23

 

9.8...... Employee Rights......................................................................................... 23

 

ARTICLE 10........ Survival......................................................................................... 24

 

10.1.... Survival...................................................................................................... 24

 

ARTICLE 11          PERFORMANCE AND PAYMENT BONDS; INSURANCE…….24

 

           

 

11.1          Assignment or Transfer………………………………………………….24

 

11.2          Bond Indemnity Obligations…………………………………………….24

 

11.3          Cooperative Efforts……………………………………………………...24

 

11.4          Additional Insureds……………………………………………………...24

 

 

 

ARTICLE 12........ Miscellaneous........................................................................... 25

 

12.1.... Press Releases and Announcements............................................................ 25

 

12.2.... Third Party Beneficiaries............................................................................. 25

 

12.3.... Entire Agreement........................................................................................ 25

 

12.4.... Succession and Assignment........................................................................ 25

 

12.5.... Counterparts.............................................................................................. 25

 

12.6.... Headings.................................................................................................... 25

 

12.7.... Notices...................................................................................................... 25

 

12.8.... Governing Law........................................................................................... 27

 

12.9.... Amendments and Waivers.......................................................................... 27

 

12.10.. Severability................................................................................................ 27

 

12.11.. Expenses; Transfer Taxes........................................................................... 27

 

12.12.. Construction............................................................................................... 28

 

12.13.. Incorporation of Annexes, Exhibits and Schedules....................................... 28

 

12.14.. Certain Remedies....................................................................................... 28

 

12.15.. Business Days............................................................................................ 28

 

            12.16   Joint and Several Liability……………………………………………….28

 

 

 

 

 

 

 

Annex I – Definitions

 

EXHIBITS

 

 

 

 

 

 

 

 

Schedule 3.2.4              Current Retainage Amounts—Transferred Projects

 

Schedule 4.1                 Jurisdictions

 

Schedule 4.3                 Conflicts, Required Consents

 

Schedule 4.4                 Governmental Consents

 

Schedule 4.5                 Stock Ownership

 

Schedule 4.6                 Financial Statements

 

Schedule 4.7(a)             Indebtedness

 

Schedule 4.7(b)             Undisclosed Liabilities

 

Schedule 4.8                 Inventory Matters

 

Schedule 4.9                 Recent Events

 

Schedule 4.10.1            Real Property

 

Schedule 4.10.2            Lease Agreements

 

Schedule 4.11               Personal  Property, Leases

 

Schedule 4.12               Legal Compliance

 

Schedule 4.13               Affiliate Agreements

 

Schedule 4.14               Agreements, Encumbrances

 

Schedule 4.14-1            Assumed Contracts

 

Schedule 4.15              Intellectual Property

 

Schedule 4.16              Employee Benefit Plans

 

Schedule 4.17               Labor Relations

 

Schedule 4.18               Litigation

 

Schedule 4.19               Environmental Matters

 

Schedule 4.20               Tax Deficiencies

 

Schedule 4.23               Sufficiency of Assets Exceptions

 

Schedule 5.5                 Governmental Consents

 

Schedule 8.11.1            Activities Scope

 

Schedule A                    Excluded Assets

 

 

 

 

THIS ASSET PURCHASE AGREEMENT (this “Agreement”) dated February 29, 2008 (the “Closing Date”), is by and between OMGI Sub, LLC, a Florida limited liability company (“Buyer”), and Orion Marine Group, Inc., a Delaware corporation and parent company of Buyer (“OMGI”), on the one hand, and Subaqueous Services, Inc., a Florida corporation (“Seller”), and Lance Young, individually and as the sole holder of stock of Seller (“Shareholder”), on the other hand. Buyer, OMGI, Seller and the Shareholder are sometimes referred to individually herein as a “Party” and collectively herein as the “Parties.” 

 

WHEREAS, on the terms and subject to the conditions set forth in this Agreement, Seller desires to sell, and Buyer desires to buy, the Assets; and

 

WHEREAS, on the terms and subject to the conditions set forth in this Agreement, the Shareholder desires for Seller to sell the Assets to Buyer; and

 

WHEREAS, on the terms and subject to the conditions set forth in this Agreement, each of the Shareholder and OMGI is willing to make the representations and warranties and to enter into the covenants and agreements set forth herein with respect to the purchase and sale of the Assets;

 

NOW, THEREFORE, in consideration of the representations, warranties,   covenants, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

 

 

Capitalized terms used in this Agreement but not defined in this Agreement shall have the meanings ascribed to them in Annex I , which is attached to and incorporated in this Agreement.

 

 

The closing of the transactions provided for herein (the “Closing”) is taking place at 12:00 noon Central Standard Time on the Closing Date.

 

 

3.1              Assets.   On the terms and subject to the conditions set forth in this Agreement, Seller is selling, transferring, conveying, assigning and delivering to Buyer, and Buyer is purchasing from Seller, free and clear of any and all Claims, Encumbrances, Indebtedness, Taxes, Working Capital Liabilities, restrictions and limitations (except for the Assumed Liabilities), all of the Assets.

 

3.2              Purchase Price . 

 

3.2.1        Purchase Price . In consideration for the transfer of Assets to Buyer as described in Section 3.1 above and otherwise as provided in and subject to the terms and conditions of this Agreement, and in consideration for the other agreements and obligations of Seller and of Shareholder set forth or described herein, the total purchase price is $35,000,000, subject to the provisions, terms and conditions of and adjustments set forth in this Agreement (“Purchase Price”).

 

3.2.2    Purchase Price Adjustment . The following terms as referenced in this subsection shall have the meanings assigned to them below:

 

A. “Billings in Excess of Costs and Estimated Earnings” means the current liability as of the Closing Date, as properly recorded on Seller’s balance sheet in accordance with GAAP, representing the amount, in the aggregate, invoiced to customers but not yet earned, as determined in accordance with GAAP.

 

B. “Costs and Estimated Earnings in Excess of Billings” means the current asset as of the Closing Date, as properly recorded on Seller’s balance sheet in accordance with GAAP, representing the amount, in the aggregate, earned on contracts but not yet invoiced to customers, as determined in accordance with GAAP.

 

The amounts in items A. and B. above shall, subject to the provisions below, be determined using Seller’s estimating and costing methods (which shall be consistent with and in accordance with GAAP) and shall be determined without consideration  or regard for any operations, events, acts, circumstances or matters which occur after the Closing Date.

 

On the Closing Date, the Purchase Price shall be adjusted by an amount to reflect the difference between items A. and B. above as of the Closing Date (“Purchase Price Adjustment”). Seller shall have completed the preparation of its financial statements (which shall have been prepared in accordance with GAAP) for the period ending on and as of the Closing Date and shall have provided such financial statements and reasonable supporting documents to Buyer prior to the Closing Date. During such preparation period, Seller shall have consulted with Buyer periodically regarding its progress and results, and Buyer, at its request, shall have been entitled from time to time to observe and review Seller’s preparation of such financial statements and supporting documentation. After such financial statements and documents shall have been provided to Buyer, Buyer and Seller shall have consulted and exercised all reasonable efforts to agree upon the actual difference between items A. and B. above. If Seller and Buyer have been unable to agree, such matter shall have been or shall be referred for determination to an independent outside accounting firm acceptable to Seller and Buyer for resolution.

 

After agreement to or determination of such amount, the Purchase Price shall have been or shall be adjusted (i) downward by any amount by which item A. above exceeds item B above; (ii) upward by any amount by which item B. above exceeds item A. above; or (iii) not at all, in the event the amounts of items A. and B above are equivalent. In the case of (i), the amount of the adjustment shall be paid by subtracting such amount from the Purchase Price at Closing. In the case of (ii), the amount of the adjustment shall be paid by adding such amount to the Purchase Price at Closing. In the case of (iii), no adjustment to the Purchase Price shall be made.

 

3.2.3.       Payment of Purchase Price . The Purchase Price shall be payable to Seller as follows (collectively, the “Closing Payment”):

 

(a)                At Closing, but subject to the provisions, terms and conditions of this Agreement, including Section 3.2.2 above, a payment in immediately available funds of $35,000,000 (the “Closing Payment”).

 

(b)               The Purchase Price Adjustment, if any, shall be payable at Closing as provided in 3.2.2 above.

 

(c)        As respectively provided in Sections 3.2.4 and 3.2.5 below.

 

3.2.4    Retainage—Transferred Projects . Seller and Shareholder represent, warrant and covenant that Schedule 3.2.4 hereto sets forth, as of the Closing Date, on a project by project basis, amounts of retainage currently (as of the Closing Date) (i) withheld by project owners with respect to all projects the subject of any Assumed Contract (collectively, “Transferred Projects”), which amounts are, subject only to time of release restrictions in the corresponding Assumed Contract, validly and fully due and owing to Seller; and (ii) withheld by SSI from subcontractors, suppliers or other third parties with respect to Transferred Projects, which amounts are likewise, subject only to time of release restrictions in the corresponding subcontracts or other contractual arrangements, validly and fully due and owing to such subcontractors, suppliers or other third parties. Individual retainage amounts described in ‘(i)” above, net of (subtracting) corresponding individual retainage amounts described in “(ii)” above, are hereinafter referred to in this subsection as “Net Retainage Amounts.” To the extent that any such individual Net Retainage Amounts with respect to individual Transferred Projects (other than any and all retainage amounts with respect to the Goodby’s Creek project/corresponding Assumed Contract, which are  transferred hereby in their entirety by Seller to Buyer as an Asset) have not been previously collected by or paid or transferred to Seller, Buyer shall pay to Seller those individual Net Retainage Amounts under specific Assumed Contracts at Closing, but only with respect to those Transferred Projects/Assumed Contracts for which Buyer has received from Seller a Comfort Letter in the form of Exhibit D hereto with no qualifications or exceptions to the statements therein and with no negative indications as to project status, executed and delivered by such project owner (“Comfort Letter”), and only after receipt of such Comfort Letter. Any such payment by Buyer to Seller of such Net Retainage Amounts shall, with respect to any specific Transferred Project Net Retainage Amount, be due promptly after Buyer’s receipt of such corresponding Comfort Letter. The Parties acknowledge and agree that with respect to any Net Retainage Amount held at Closing pursuant to any Assumed Contract with respect to which Buyer has not received such corresponding Comfort Letter, Buyer shall have no obligation to pay to Seller any amount of any such retainage, until and only if and after Buyer has received any such corresponding Comfort Letter.

 

3.2.5.   Support Payment . In exchange for the access to facilities and personnel and support services described in Section 8.12 below, Buyer shall pay to Seller on the Closing Date an additional amount of $60,000.

 

3.3              Assumed Liabilities .  On and as of the Closing Date, subject to the terms and conditions of this Agreement, and in consideration for the sale and transfer of the Assets, Buyer is assuming only the Assumed Liabilities.

 

3.4              Excluded Liabilities .  The Parties hereby acknowledge and agree that Seller is retaining the Excluded Liabilities, and Seller shall have the sole responsibility, obligation and liability to pay, discharge and perform all Excluded Liabilities. SELLER AND SHAREHOLDER EXPRESSLY ACKNOWLEDGE AND AGREE THAT OTHER THAN THE ASSUMED LIABILITIES BUYER SHALL HAVE NO LIABILITY OR RESPONSIBILITY TO DISCHARGE, PAY, SUFFER, OR INCUR ANY OBLIGATION, INDEBTEDNESS, LOSS, CLAIM OR LIABILITY OF THE SELLER OR RELATED TO THE BUSINESS. The Parties further acknowledge and agree that nothing in this Agreement or otherwise is intended to, nor should it be deemed or construed to, imply that Buyer is assuming or is accepting responsibility for any liability of any nature whatsoever, with the sole exception of the Assumed Liabilities. Without limiting the generality of the foregoing, Seller and Shareholder acknowledge and agree that Seller and/or Shareholder retain sole responsibility and  liability to pay and discharge, and that Seller and/or Shareholder shall pay and discharge when due all (i) Indebtedness of the Seller or related to the Business; (ii) all Working Capital Liabilities (including, without limitation, accounts payable) of the Seller or related to the Business; (iii) all Taxes of the Seller or related to the Business; and (iv) all insurance premiums of Seller or related to the Business that  are necessary to maintain coverage under all of Seller’s insurance policies for the period up to and including the Closing Date.

 

 

As a material inducement to Buyer and OMGI to enter into this Agreement and to consummate the transactions contemplated hereby, each of Seller and Shareholder jointly and severally represents and warrants, to the best of their respective Knowledge (and all of the following representations and warranties are qualified accordingly), the following to Buyer and to OMGI:

 

4.1              Organization, Qualification and Corporate Power . Seller is a corporation duly organized, validly existing, and in good standing under the laws of the State of Florida. Seller has full corporate power and authority to carry on its businesses and to own and use the properties and assets owned and used by it.  Schedule 4.1 hereto includes a list of all jurisdictions in which Seller conducts business or owns properties or assets.

 

4.2              Authorization of Transaction .  Seller has full corporate power and authority and the Shareholder has full right and authority to execute and deliver this Agreement and the other agreements contemplated hereby to which it is a party and to perform its obligations hereunder and there under. Without limiting the generality- of the foregoing, the board of directors and Shareholder of Seller have duly authorized and approved the execution, delivery and performance of this Agreement and the other agreements contemplated herein to which it is a party, and the transactions contemplated herein and therein. This Agreement and the other agreements contemplated hereby to which Seller or Shareholder is a party constitute the valid and legally binding obligations of Seller and Shareholder, enforceable against them in accordance with their respective terms, except as enforceability may be limited by bankruptcy, similar laws of debtor relief and general principles of equity.

 

4.3              Non-contravention .  Except as disclosed on Schedule 4.3 , neither the execution, the delivery nor the performance of this Agreement or the other agreements contemplated hereby, nor the consummation of the transactions contemplated hereby or thereby, will violate, conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify, or cancel, or require any authorization, consent, approval, execution or other action by or notice to any third party under, (i) the articles of incorporation, bylaws, or other organic documents of Seller, (ii) any contract, lease, sublease, license, sublicense, franchise, Permit, Environmental Permit, indenture, agreement, instrument of Indebtedness, Encumbrance, or other arrangement by which Seller (or any of its properties or assets) or Shareholder is bound or affected, or (iii) any law, statute, Environmental Law, rule, regulation, order, judgment, decree, stipulation, injunction, charge or other restriction, to which Seller or any of its assets or properties, or Shareholder, is subject.

 

4.4              Governmental Consent .  Except as set forth on Schedule 4.4 , neither Seller nor Shareholder is required to make any declaration to or registration or filing with any Person, or to obtain any Permit, in connection with the execution, delivery or performance of this Agreement or the consummation of any of the transactions contemplated hereby. Without limiting the generality of the foregoing, neither Seller nor Buyer has any obligations or responsibilities under or pursuant to the federal Workers Adjustment, Retraining, and Notification Act, or any state counterpart thereof (the “WARN Act”).

 

4.5              Stock Ownership; Other Interests .  Set forth on Schedule 4.5 is a true, correct and complete list of all classes of capital stock of Seller, including common and preferred and voting and non-voting, and the number of shares in each class and the number of shares of each class owned by the Shareholder.  All of the issued and outstanding shares of stock of Seller have been duly authorized, are validly issued, fully paid and non-assessable, and are owned, beneficially and of record, by the Shareholder as shown on Schedule 4.5 free and clear of any Encumbrances.  Seller does not, directly or indirectly, beneficially or of record, own or have any right to acquire an equity interest in any Person.  Except as set forth on Schedule 4.5 , Seller has not issued any debt securities.

 

4.6              Financial Statements .  Seller has furnished Buyer with the following financial statements of Seller, which are or shall be attached hereto as Schedule 4.6 (collectively, the “ Financial Statements ”):

 

(i)                  the unaudited (and the extent available, audited) balance sheets of Seller as of December 31, 2007 (the “Latest Balance Sheet”), and for each interim quarterly period, and related statements of income, cash flows and changes in shareholder equity for the periods then ended, including all supporting documentation, together with the same or acceptable substitutes for the period January 1, 2008 to the Closing Date;

 

(ii)                the audited balance sheets of Seller as of December 31, 2004, 2005, and 2006, and the related statements of income, cash flows and changes in shareholder’s equity for the periods then ended;

 

(iii)               the financial statements and supporting documentation referenced in Section 3.2.2 above; and

 

(iv)              the financial statements and supporting documentation referenced in Section 4.9 below.

 

The Financial Statements (including in all cases any notes thereto) fairly present the financial condition and results of operations of Seller as of the times and for the periods referred to therein, and have been prepared in accordance with GAAP, consistently applied throughout the periods indicated, subject in the case of interim and unaudited financial statements, to normal year-end adjustments (none of which are material).  The Financial Statements are accurate and complete in all material respects and are consistent with the information in Seller’s books and records (which, in turn, are accurate and complete in all material respects).

 

Since the date of the Latest Balance Sheet and since the date that Seller’s last audited financial statements were issued, no event, condition or circumstance has occurred, arisen or existed that requires or required, as the case may be, Seller to (i) eliminate profits previously recognized for accounting purposes by Seller or (ii) adjust downward the future profits to be recognized for accounting purposes by Seller, with respect to any fixed-priced, lump sum  or guaranteed fixed price contract, or any other contract which has a fixed revenue component (including but not limited to management fees or bonus or penalty clauses), in either case in order to comply with GAAP (including the percentage of completion method of accounting) and involving an amount exceeding $25,000 in the aggregate. 

 

4.7              Indebtedness, Working Capital Liabilities; Undisclosed Liabilities .  Set forth on Schedule 4.7(a) is a list of (a) all Indebtedness and Working Capital Liabilities (including, without limitation, the payee, the principal balance and all accrued interest, prepayment penalties or other obligations required to be paid to extinguish such Indebtedness and Working Capital Liabilities on the Closing Date) of Seller or related to the Assets or Business, and which are outstanding as of the Closing Date, and (b) all Encumbrances related to such Indebtedness or to any of the Assets, all of which have been discharged and released as of the Closing Date. Seller has no other material liabilities or obligations (whether absolute or contingent, liquidated or unliquidated, or due or to become due) except for liabilities and obligations set forth in Schedule 4.7(b) or in the Latest Balance Sheet. All Indebtedness, Working Liabilities, and Taxes of the Seller or related to the Business have been paid as of the Closing Date, or, if not due then, shall be paid by Seller when due.

 

4.8              Inventory . The amounts shown for inventories on the Financial Statements were determined in accordance with the valuation principles set forth on Schedule 4.8 and in accordance with GAAP.  Except as set forth on Schedule 4.8, the value of obsolete, damaged or excess inventory and of inventory below standard quality has been written down to net realizable value on the Latest Balance Sheet or adequate reserves have been provided therefor, and the inventories are carried on the Latest Balance Sheet at the lower of cost or market value. Except as expressly set forth herein, all inventory included in the Assets is being transferred by Seller to Buyer on an “AS IS WHERE IS BASIS,” with all faults and defects whatsoever. Other than the representations and warranties made by Seller and Shareholder herein, neither makes any other representations or warranties as to condition, value or otherwise of inventory and hereby disclaims all other representations and warranties with respect thereto, whether express or implied, and specifically disclaims THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTUCULAR PURPOSE.

 

4.9              Recent Events .  Excepts as set forth on Schedule 4.9 , since December 31, 2007, (i) there has not been any Material Adverse Change; (ii) Seller has not sold, leased, transferred, assigned or otherwise Encumbered any of the Assets; (iii) no Person has accelerated, terminated, modified, or canceled any Indebtedness, contract, lease, sublease, license, or sublicense (or series of related contracts, leases, subleases, licenses, and sublicenses) involving more than $50,000 to which Seller is a party or by which Seller or the Assets is bound, (iv) Seller  has not canceled, compromised, waived, or released any Claim (or series of related Claims) either involving more than $50,000 or outside the Ordinary Course of Business; (v) Seller has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its properties or assets (other than ordinary wear and tear not caused by neglect); (vi) Seller has not entered into any transaction, arrangement or contract with, or distributed or transferred any property or other assets to, any officer, director, shareholder or other insider or affiliate of Seller, other than salaries and employee benefits and other transactions in the Ordinary Course of Business and consistent with past practice; (vii) Seller has not entered into any other material transaction (exceeding $50,000) outside the Ordinary Course of Business; (viii) Seller has maintained its cash management practices and policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, establishment of reserves and adjustments related to all other working capital assets, accrual of accounts receivable, inventory control, prepayment of expenses, payment of accounts payable, accrual of other expenses, deferral of revenue, and acceptance of customer deposits, in each case in accordance with applicable GAAP and consistent with the Ordinary Course of Business; (ix) Seller has not reduced or increased accounts receivable or accounts payable, or allowed accounts receivable or accounts payable to be reduced or increased, below or above levels consistent with the Ordinary Course of Business; (x) Seller has not reduced inventory or work-in-process levels, or allowed inventory or work-in-process levels to be reduced, below levels consistent with the Ordinary Course of Business, (xi) Seller has maintained, repaired and replaced their respective assets consistent with Ordinary Course of Business operations; (xii) Seller has not made any loans or advances to any Person except petty cash advances in the Ordinary Course of Business not exceeding $5,000 in the aggregate; (xiii) Seller has not incurred any other liability or obligation or made payments in respect of any liability or obligations, except in the Ordinary Course of Business and; (xiv) Seller has not entered into a binding commitment to do any of the foregoing.

 

4.10          Real Property . 

 

4.10.1                            Seller owns no real property. Schedule 4.10.1 sets forth a complete and correct list of all real property leased by Seller (the "Real Property").  The Real Property is the only real property used by Seller in the current operation of the Business. Seller has not received any notice from any utility company or municipality of any fact or condition that could result in the discontinuation of presently available or otherwise necessary sewer, water, electric, telephone or other utilities (or capacity allocations related thereto) or services for the Real Property or Transferred Projects sites. The Real Property and Transferred Projects sites have access to sufficient quantities of water, sewer, electric, telephone, and other utilities required to conduct the Business as presently conducted by Seller. 

 

4.10.2                            True, correct and complete copies of the Hill Street Lease and the Orange Avenue Lease (which are the only leases to which Seller is a party) are attached hereto as Schedule 4.10.2 (the “Lease Agreements”).  The Lease Agreements are in full force and effect and enforceable in accordance with their respective terms and Seller is in full compliance with all Lease Agreement terms and conditions. There is no threatened or pending Claim (or basis therefor) that any party to the Lease Agreements is in default or otherwise not in compliance with the Lease Agreements. There is no basis to terminate, suspend or modify the Lease Agreements or any rights or privileges set forth in the Lease Agreements. Seller and Shareholder shall provide access to premises and related facilities as provided in Section 8.12 below. Seller and Shareholder shall cooperate with Buyer and exercise reasonable efforts to assist Buyer in entry into a new lease for the Jacksonville Yard.

 

4.11  Tangible Personal Property .  Schedule 4.11 contains a list of all material personal property that is either owned or leased by Seller or used or useful in the Business, including, without limitation, any and all equipment, vessels, machinery, and all appurtenances, spare parts, and other related tangible personal property. Seller has good and marketable title to all owned personal property constituting Assets subject to no Encumbrances, Working Capital Liabilities, Taxes, or Indebtedness, and Seller is conveying to Buyer at Closing, good and marketable title to the Assets, in each case free and clear of all Encumbrances, Working Capital Liabilities, Taxes, and Indebtedness.  All leases under which Seller leases any of the personal property, which are set forth on Schedule 4.11, are in full force and effect and binding upon the parties thereto. None of the parties to such leases is in breach of any of the provisions thereof (nor is there a basis therefor).  All personal property leases in effect with respect to the Business are included in the Assets and are, and upon consummation of the transactions contemplated hereby, will be validly assigned and transferred to Buyer and will continue to be, in full force and effect and constitute and will constitute valid and legally binding agreements. Any required consents or notifications for assignment thereof are set forth on Schedule 4.11 .  The Assets are all either owned by or validly leased to Seller and to no other entity or Person, and at the Closing Date are free and clear of any and all Encumbrances, Indebtedness, Taxes, Working Capital Liabilities, and Claims. Except as expressly set forth herein, all tangible personal property included in the Assets is being transferred by Seller to Buyer on an “AS IS WHERE IS BASIS,” with all faults and defects whatsoever. Other than the representations and warranties made by Seller and Shareholder herein, neither makes any other representations or warranties as to condition, value or otherwise of tangible personal property and hereby disclaims all other representations and warranties with respect thereto, whether express or implied, and specifically disclaims THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTUCULAR PURPOSE.

 

4.12     Compliance with Laws .  Except as set forth on Schedule 4.12 , (i) Seller is in compliance in all material respects and has operated the Business in compliance in all material respects with all applicable federal, state, municipal, county, local and foreign laws, statutes, ordinances, regulations, rules, policies, orders, judgments, injunctions, awards, Permits and decrees applicable to the Business or the ownership, lease or operation of any of the Assets, (ii) neither Seller nor the Shareholder is aware of any basis of alleged or potential non-compliance with any such laws, etc. or Permits related to the Business or ownership, lease or operation of the Assets, and (iii) all Permits are in full force and effect and no proceeding is pending or threatened to revoke, limit or modify any such Permit.  Any such Permits are separately listed on Schedule 4.1 2.

 

4.13          Affiliate Agreements .  Except as set forth on Schedule 4.13 , there are no written or oral contracts, agreements, arrangements or understandings between any shareholder and Seller, or between any affiliate of any shareholder and Seller.

 

4.14          Agreements, Encumbrances .  Set forth on Schedule 4.14 is a list of all contracts, agreements, and similar arrangements, whether written or oral, to which Seller is a party including, without limitation, each (i) contract, purchase order, agreement and similar arrangement for or with respect to (and all other rights and interests with respect to) any and all jobs or projects in process or awarded as of the Closing Date, and  all outstanding offers, bids and solicitations made by or to Seller (including all “low bidder” and quotation rights), and other similar arrangements; (ii) employment agreement or similar arrangement between Seller and any current or former employee; (iii) mortgage, indenture, note,  installment obligation, or other instrument for or relating to any Indebtedness or borrowing of money, (iv) guaranty of any obligation for borrowings or other Indebtedness, or performance, or guaranty or warranty of products or services, excluding endorsements or guaranties of instruments made in the Ordinary Course of Business in connection with the deposit of items for collection, and express product and statutory warranties, (v) agreement or arrangement for the sale or lease of any of the Assets, (vi) agreement or other arrangement for the purchase of any real estate, machinery, equipment, or other assets, (vii) contract pursuant to which it is or may be obligated to make payments, contingent or otherwise, on account of or arising out of prior acquisitions or sales of businesses, assets, or stock of other companies, (vii) joint venture, partnership, partnering, materials supply, representation, broker, sales agency, or advertising contract, agreement or arrangement, excepting any such contract that is terminable at will, or by giving notice of 30 days or less, without liability, (vii) lease or other agreement for the use of personal property other than in the Ordinary Course of Business, (viii) agreement imposing non-competition or exclusive dealing obligations on Seller, (ix) contract for the future purchase of materials, supplies, services, merchandise, or equipment parts, except contracts made in the usual, regular, and Ordinary Course of Business, and (x) contract or other agreement for the sale or provision of goods or services or otherwise related to Assets or the Business as currently conducted.  Except as set forth in Schedule 4.14 , neither Seller nor any other party thereto is in default under any of the contracts, agreements or similar arrangements nor has any event occurred (nor does any condition exist) which upon notice or the passage of time would result in any such default, and all such contracts, agreements or similar arrangements are in full force and effect and are enforceable in accordance with their respective terms. Schedule 4.14-1, Assumed Contracts , sets forth the contracts, agreements, etc. that are being assumed by Buyer pursuant to the terms of this Agreement; and Schedule 4.14-1 sets forth all contracts, purchase orders, agreements and similar arrangements for (and all other rights and interests with respect to) any and all jobs or projects in process or awarded as of the Closing Date, and  all outstanding bids, offers and solicitations made by or to Seller (including, without limitation, all “low bidder” and quotation rights), and other similar arrangements. Any required consents or notification for the assignment of the Assumed Contracts are set forth separately on Schedule 4.14-1 .  Seller has made available to Buyer a copy of each contract, agreement or similar arrangement listed on Schedule 4.14-1 or other written description of the obligations related thereto, and all amendments thereto. Only those items listed in Schedule 4.14-1 are being assumed by Buyer (subject to the terms and conditions of this Agreement); Seller retains sole responsibility and liability with respect to all other items listed or described on Schedule 4.14 , and all related Claims and Losses. Subject to Sections 3.3, 3.4, 7.1, 7.3, and 8.4 of this Agreement, Buyer and OMGI shall be responsible for completing the balance of the scope of work under Assumed Contracts for Transferred Projects.

 

4.15          Intellectual Property .  Set forth on Schedule 4.15 is (i) a list of the Intellectual Property owned by Seller or used by Seller in the Business, (ii) a complete description of every license, fee, royalty and other amount payable by Seller in connection with the use of any Intellectual Property, and (iii) a description of the terms and conditions on which and periods for which such amounts are payable. Except as set forth in Schedule 4.15 , Seller either owns or has the right to use by license, sublicense, agreement, or permission all of the Intellectual Property, and all rights granted or retained in licenses under any Intellectual Property which is used in connection with the conduct of the Business as presently conducted.  Except as set forth on Schedule 4.15 , there is no basis for, and none of the Intellectual Property which is used in connection with the conduct of the Business is, or has been in the past five (5) years involved in, or the subject of, any pending or threatened infringement, interference, opposition or similar Claim or has otherwise been challenged in any way.  Neither Seller nor the Shareholder is aware that any of the Intellectual Property infringes any intellectual property owned or used by a third party.  Except as set forth on Schedule 4.15 , the Intellectual Property will afford Buyer the right to use all technology, know-how, technical and other information, data and other Intellectual Property, whether patentable or unpatentable, and whether owned by Seller, or any other Person, necessary for the conduct of the Business in the Ordinary Course of Business. Buyer shall have exclusive ownership of and rights with respect to the names “Subaqueous Services, Inc.,” “Subaqueous,” “Subaqueous Services,” “SSI” and any and all derivations thereof, the stylized “S,” and all other trade names, trademarks, trade dress and other Intellectual Property related to the Assets or the Business.

 

4.16          Employee Benefits . 

 

4.16.1    Employee Benefit Plans .  Schedule 4.16 lists all Employee Benefit Plans that Seller maintains or to which Seller contributes for the benefit of Seller’s Employees (as defined in Section 9.1), and copies of such Employee Benefit Plans have been made available to Buyer..

 

4.16.2    Multi-Employer Plans .  Neither Seller nor any member of its Controlled Group currently or in the six (6) years prior to the Closing Date sponsored, maintained or contributed to a Multi-Employer Plan.

 

4.16.3    Compliance .  With respect to each Employee Benefit Plan (i) if intended to under Section 401(a) of the Code, such Employee Benefit Plan so qualifies and its related trust is exempt from taxation under Code Section 501(a); (ii) such Employee Benefit Plans have been administered in all material respects in accordance with their terms and applicable law; (iii) there are no pending or threatened Claims with respect to any such Employee Benefit Plan, other than ordinary course requests for the payment or provision of benefits; and (iv) there are no liabilities, breaches, violations, defaults or other Claims or Losses (including, without limitation, in respect of Taxes, but other than ordinary course requests for the payment or provision of benefits) (collectively, “Employee Benefits Liabilities”) under, threatened, pending, or with respect to any such Employee Benefit Plan sponsored or maintained by Seller or by any other organization which is or is a member of a Controlled Group of which Seller is also member; and (v) without limiting “(iv)” immediately above, there are no such Employee Benefits Liabilities which would or could subject the Assets or Buyer to any Claims or Losses.

 

4.17          Labor, Employee Relations .  Except as set forth on Schedule 4.17 , Seller is not a party to any collective bargaining agreement, there are no controversies or Claims pending or threatened between Seller and any of its current or former employees or any labor or other collective bargaining unit representing any current or former employee of Seller that could reasonably be expected to result in a labor strike, dispute, slow-down or work stoppage or otherwise have an adverse effect on Buyer.  There is no organizational effort presently being made or threatened by or on behalf of any labor union with respect to employees of Seller.

 

4.18          Litigation .  Except as set forth in Schedule 4.18 , there are no Claims pending or threatened against Seller or the Shareholder affecting the Assets or the operation of the Business at law, in equity, or before or by any governmental department, commission, board, bureau, agency, or instrumentality, domestic or foreign, or private mediator or arbitrator. Seller is not in default with respect to any order, writ, injunction, or decree of any court or governmental department, commission, board, bureau, agency, or instrumentality, domestic or foreign, or with respect to any settlement or consent agreement.

 

4.19          Environmental Matters .  Except as set forth on Schedule 4.19 , (i) Seller has been in all material respects and is in compliance with all Environmental Laws and Environmental Permits related to the ownership, use, maintenance or operation of the Assets or otherwise related to the conduct of the Business, (ii) no Environmental Claims are pending or threatened with respect to the Assets or the Business, (iii) no Environmental Claims have been made with respect to the Assets or the Business in the last five (5) years, (iv) no Hazardous Materials have been released to the environment by the Seller or on or under any Asset, or other property or premises that Seller leases or has leased or at which Seller has performed any work, except in full compliance with Environmental Laws and Environmental Permits, (v) with respect to this subparagraph “(v)” only and no other representation or warranty or provision in this Agreement, and notwithstanding the definition herein of “Knowledge,” to Seller’s or Shareholder’s actual knowledge (in lieu and instead of “Knowledge”), there are no underground storage tanks on, or asbestos containing materials on or in, the Assets or the Real Property, and (vi) all Environmental Permits necessary for the conduct of the Business and required to be held or obtained by Buyer (if any) are in full force and effect and copies thereof have been provided to Buyer, if any.

 

4.20          Tax Matters .

 

4.20.1    Returns Filed and Taxes Paid . Seller and Shareholder are “US Persons” as defined under Section 1445 of the Internal Revenue Code. All Tax Returns required to be filed by or on behalf of Seller or in connection with the Business have been prepared in the manner required by applicable laws and regulations, were accurate and complete in all material respects and have been duly filed on a timely basis with the appropriate taxing authority in all jurisdictions in which such Tax Returns are or were required to be filed. All Taxes shown to be payable on the Tax Returns or on subsequent assessments with respect thereto have been paid in full on a timely basis, and no other Taxes are payable by Seller or the Shareholder with respect to items or periods covered by such Tax Returns (whether or not shown on or reportable on such Tax Returns) or with respect to any period prior to the Closing Date. Seller has withheld and paid over all Taxes required to have been withheld and paid over, and complied with all information reporting and backup withholding requirements, including maintenance of required records with respect thereto, in connection with amounts paid or owing to any employee, creditor, independent contractor, or other third party.  All Taxes of Seller, related to the Business, or with respect to the Assets for all years prior to calendar year 2007 have been paid in full on a timely basis and there are no Encumbrances on any of the assets of Seller (including, without limitation, the Assets) with respect to Taxes, other than Encumbrances for Taxes not yet due and payable, all of which Taxes Seller shall pay in full as of the Closing Date, or if not then due, when due or payable.

 

4.20.2    Tax Deficiencies; Audits; Statutes of Limitations .  Except as set forth on Schedule 4.20 , the Tax Returns related to the Business have never been audited by a government or Taxing authority, nor is any such audit in process, pending or threatened (either in writing or verbally, formally or informally).  No deficiencies have been asserted (either in writing or verbally, formally or informally) or are expected to be asserted with respect to Taxes of Seller or otherwise in connection with the Business, and neither Seller nor Shareholder has received notice (either in writing or verbally, formally or informally) or expects to receive notice that it has not filed a Tax Return (or other required document) or paid Taxes required to be filed or paid by it. Neither seller nor Shareholder is a party to any Claim for assessment or collection of Taxes, nor has such event been asserted or threatened (either in writing or verbally, formally or informally) against Seller or Shareholder or any of the assets of the Business.  No waiver or extension of any statute of limitations is in effect with respect to Taxes or Tax Returns related to the Business.  No extension of time to file any Tax Return in respect of any taxable period has been requested which has not since been filed.  No power of attorney with respect to Taxes imposed on or incurred by Seller, or Shareholder has been granted which is currently in force.  Neither the Seller nor Shareholder has received a Tax ruling or entered into a closing agreement with any Taxing authority that could have an adverse effect on any of the Assets or the Business after the Closing Date. No Taxing authority has made a pending or threatened Claim with respect to the filing of the Tax Returns and/or payment of Tax in any jurisdiction in which Seller has not previously filed Tax Returns or paid Tax.

 

4.20.3    Tax Sharing Agreements .  Neither Seller nor Shareholder is (nor have either of them ever been) a party to any Tax sharing agreement and neither has any liability for the Taxes of any other Person, whether by contract, or as transferor, transferee, successor, or under any applicable law, or otherwise.

 

4.20.4    Tax Elections and Special Tax Status .  Seller is not a party to any safe harbor lease within the meaning of Section 168(f)(8) of the Code, as in effect prior to amendment by the Tax Equity and Fiscal Responsibility Act of 1982.  None of the assets of Seller is "tax-exempt use property" within the meaning of Code Section 168(h). Seller has not been a United States real property holding corporation (as defined in Code Section 897(c)(2)) during the applicable period specified in Code Section 897(c)(1)(A)(ii). Neither Shareholder nor Seller is a "foreign person" as that term is defined in Code Section 1445.  None of the Assets or other assets of the Business directly or indirectly secures any Indebtedness the interest on which is tax exempt under Section 103(a) of the Code.

 

4.21          Brokers Fees .  Neither Seller nor Shareholder has any liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Buyer could become liable or obligated.

 

4.22          Approvals and Consents .  Except for the approvals, authorizations, consents and other actions described in Schedule 4.3 , Schedule 4.4 , Schedule 4.11 and Schedule 4.14 (all of which Seller and Shareholder shall exercise their respective reasonable efforts to obtain or take), no approval, authorization, consent or other action by, or filing with, any governmental authority, administrative agency, court or other Person is necessary for Seller’s or Shareholder’s execution and delivery of this Agreement or performance of its obligations hereunder or the consummation of the transactions contemplated hereby.

 

4.23          Sufficiency of Assets .  Except as set forth on Schedule 4.23 hereto, all of the assets used or useful in the Business are owned or leased by Seller and included in the Assets, and none of such assets are owned or leased by any other party. As of the Closing Date, the Assets will be sufficient to permit Buyer to carry on the Business (as presently conducted by Seller) as a going concern in the Ordinary Course of Business on a stand-alone basis.  Without limiting the generality of the foregoing, the Assets include all computer hardware and software for management information systems required to conduct the Business (as presently conducted by Seller) in the Ordinary Course of Business.

 

4.24          Disclosures .  No representation, warranty or statement made by Seller or the Shareholder in this Agreement (including the Schedules) or any document, instrument or written communication delivered by Seller or the Shareholder to Buyer or its representatives in connection with the transactions contemplated hereby contains or will contain any untrue statement of a material fact or omits or will omit to state any material fact necessary to make the statements contained herein or therein not misleading.

 

  4.25       Insurance Coverage . As of the Closing Date and at all times prior, Seller maintains and has maintained in full force and effect all insurance policies necessary or appropriate for the conduct  of the Business with limits, and deductibles appropriate to the conduct of the Business. Except for employment practices liability policies, all such polices are and have been written on an “occurrences,” not a “claims made” basis, and Seller has paid as of the Closing Date all premiums necessary to continue coverage under all such policies with respect to the Closing Date and any period prior thereto. Seller has provided to Buyer a summary of all such policies currently in effect.

 

 

As a material inducement to Seller and the Shareholder to execute this Agreement and consummate the transactions contemplated hereby, each of Buyer and OMGI, to the best of their respective Knowledge (and the following representations and warranties are qualified accordingly), hereby represents and warrants the following to Seller and Shareholder:

 

5.1              Organization .  Buyer is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Florida. OMGI is a corporation duly organized, validly existing and in good standing under the laws of the Sate of Delaware.

 

5.2              Authorization of Transaction .  Each of Buyer and OMGI has full power and authority to execute and deliver this Agreement and the other agreements, documents and instruments contemplated hereby to which it is a party, and to perform its respective obligations hereunder and there under. This Agreement and the other agreements contemplated herein to which the Buyer or OMGI is a party constitute the valid and legally binding obligation of Buyer or OMGI, as the case may be, enforceable against Buyer or OMGI, as the case may be, in accordance with their respective terms, except as enforceability may be limited by bankruptcy, similar laws of debtor relief and general principles of equity.

 

5.3              Non-contravention . Assuming the accuracy and completeness of the representations and warranties and Schedules of Seller and the Shareholder set forth in or attached to this Agreement, neither the execution, delivery or performance of this Agreement or the other agreements contemplated hereby to which the Buyer or OMGI is a party, nor the consummation of the transactions contemplated hereby or thereby, will violate, conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify, or cancel, or require any authorization, consent, approval, execution or other action by or notice to any third party under, (i) the articles of formation, operating agreement or other organic documents of the Buyer or OMGI, as the case may be, (ii) any contract, lease, sublease, license, sublicense, franchise, Permit, indenture, agreement, instrument of Indebtedness, Encumbrance, or other arrangement to which the Buyer (or OMGI, as the case may be) or any of the Buyer’s (or OMGI’s, as the case  may be) respective properties or assets is bound or affected, or (iii) any law, statute, Environmental Law, rule, regulation, order, judgment, decree, stipulation, injunction, charge or other restriction, to which the Buyer (or OMGI, as the case may be) or any of the Buyer’s (or OMGI’s, as the case may be) respective properties or assets is bound or affected.

 

5.4              Broker’s Fees .  Buyer and OMGI have no liability or obligation to pay any fees or commissions to any broker, finder, or agent with respect to the transactions contemplated by this Agreement for which Seller or Shareholder could become liable or obligated.

 

5.5              Governmental Consent .  Except as set forth on Schedule 5.5 , no approval, authorization, consent or other action by, or filing with, any governmental authority, administrative agency, court or other party is necessary for Buyer’s or OMGI’s, as the case may be, execution and delivery of this Agreement or performance of its obligations hereunder or the consummation of the transactions contemplated hereby.

 

 

6.1              Deliveries by Seller at the Closing .  At the Closing, simultaneously with the deliveries by Buyer specified in Section 6.2 below, Seller is delivering or causing to be delivered to Buyer the following:

 

(i)                  (a) A certified copy of the resolutions by which the corporate action on the part of Seller and Shareholder necessary to approve this Agreement, and the transactions contemplated hereby were taken, and (b) an incumbency certificate signed by a duly authorized officer of Seller certifying the signature and office of each officer executing this Agreement or any other agreement, certificate or other instrument executed pursuant hereto;

 

(ii)                An Assignment and Assumption Agreement in the form attached hereto as Exhibit A , executed by Seller;

 

(iii)               A Bill of Sale in the form attached hereto as Exhibit B , and Trademarks and Copyrights Assignment in the form attached hereto as Exhibit E , each executed by Seller;

 

 (iv)        A Consulting Agreement between the Buyer and Lance Young, in the form of Exhibit C hereto, executed by Shareholder;

 

 (v)         Copies of all consents, notices and authorizations referenced in this Agreement (to the extent available; all not available shall be provided post-Closing, in each case promptly after being obtained);

 

(vi)               Certificates of Insurance naming Buyer and its affiliates as additional   insureds under all of Seller’s insurance policies (other than worker’s compensation);

 

(vii)             A mutually agreed Allocation of Purchase Price, attached hereto as Exhibit F ; and

 

(viii)           Such other documents or instruments as Buyer reasonably requests in order to effect the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.

 

6.2              Deliveries by Buyer at the Closing .  At the Closing, simultaneously with the deliveries by Seller specified in Section 6.1 above, Buyer is delivering or causing to be delivered to Seller the following:

 

(i)         The Closing Payment (by wire transfer to account(s) specified by Seller);

 

(ii)        A certified copy of the text of the resolutions by which the corporate action on the part of Buyer necessary to approve this Agreement were taken and (b) an incumbency certificate signed by a duly authorized officer of Buyer certifying the signature and office of each officer executing this Agreement or any other agreement, certificate or other instrument executed pursuant hereto;

 

(iii)       An Assignment and Assumption Agreement in the form attached hereto as Exhibit A , executed by Buyer; and

 

(iv)       A Consulting Agreement in the form attached hereto as Exhibit C , executed by Buyer and OMGI, and a mutually agreed Allocation of Purchase Price, attached hereto as Exhibit F ..

 

(v)        Certificates of Insurance naming Seller and Shareholder as additional insureds under all of Buyer’s insurance policies (other than worker’s compensation); and

 

(vii)             Such other documents or instruments as Seller or Shareholder reasonably requests in order to effect the transactions contemplated hereby in accordance with the terms and conditions of this Agreement.

 

6.3                  Deliveries after Closing .  Immediately upon the Closing, Seller will file amendments to Seller's articles of incorporation (and other filed organic documents) changing Seller’s name to new names which do not have the words “Subaqueous Services”, “Subaqueous Services, Inc.,” “Subaqueous,” “SSI,” or any derivations thereof, the stylized “S,”or any other words indicating that Seller may be involved in the Business (as conducted before of after the Closing Date) or otherwise indicating the Seller is continuing in the Business.

 

 

7.1                  Indemnification by Seller and Shareholder.   In addition to any rights or remedies Buyer or its affiliates may otherwise have at law or in equity, subject to Section 7.2, Seller and Shareholder jointly and severally hereby release and discharge and shall indemnify, defend and hold harmless Buyer and its affiliates, the directors, officers, employees, controlling persons, lenders, insurers, agents and representatives of Buyer or of any of Buyer’s affiliates,  and the  respective successors and assigns of any of the foregoing (the “Buyer Covered Persons”) from and against any and all Claims, Environmental Claims and Losses constituting, arising out of, relating to, or attributable to (i) any Excluded Liability; (ii) any Excluded Asset; (iii) any breach of any representation or warranty of Seller or any Shareholder set forth in this Agreement; (iv) any breach of any covenant or agreement of Seller or Shareholder set forth in this Agreement; (v) any act, omission or event occurring, or any condition or circumstance existing, prior to the Closing Date (regardless of whether it continues after the Closing Date), or any other condition, circumstance or event attributable to any act, omission or event prior to the Closing Date (regardless of whether it continues after the Closing Date), including, without limitation, any Claims, Environmental Claims, Taxes, Working Capital Liabilities or Losses disclosed on any Schedule hereto, but excluding Assumed Liabilities; or (vi) any Employee Benefit Plan of Seller or any employment or similar agreement to which Seller is a party; provided, however, that Seller’s and Shareholder’s indemnification obligations under this Section 7.1 shall not apply to any Claims, Environmental Claims or Losses arising from, out of or in any manner connected with any Claims, Environmental Claims or Losses for which any Seller Covered Person may be entitled to indemnity pursuant to Section 7.3 below.

 

7.2                      Certain Limits on Indemnification by Seller; Offset .  The obligations set forth in Section 7.1 above are subject to the following limitations:

 

7.2.1        Certain Limitations .  With respect to the indemnification obligations under Section 7.1 (v) above only and only with respect to Environmental Claims, the parties acknowledge and agree that such obligations of Seller and Shareholder shall not extend to Environmental Claims in respect of environmental conditions on or under the property leased under the Hill Street Lease, or on or under property on which Transferred Projects are being conducted as of the Closing Date, to the extent those conditions are (i) attributable to the operations of (a) previous owners, operators or lessees of any such property or (b) previous contractors, subcontractors or suppliers on any such property, that are and were in all cases not affiliated with, did not work for or with, and were not directly or indirectly retained by either Seller or Shareholder, and (ii) are not attributable to the operations of Seller or Shareholder. The Seller and Shareholder shall not be liable under Section 7.1 until the Buyer Covered Persons have first suffered, sustained or incurred aggregate Claims, Environmental Claims and Losses relating to such matters in excess of $25,000 in the aggregate, at which point Seller and Shareholder shall be liable to indemnify the Buyer Covered Persons and hold them harmless from and against such $25,000, and all other such Claims, Environmental Claims and Losses in excess of the $25,000 basket.

 

7.2.2        Offset .  To the extent any portion of the Purchase Price remains unpaid, Seller’s and the Shareholder’ obligations and liabilities under Section 7.1 shall be offset against such remaining Purchase Price until it has been fully offset, after which time, Seller and the Shareholder shall pay in cash to Buyer Covered Persons any additional amounts they from time to time may be obligated to pay under Section 7.1.

 

7.3                  Indemnification by Buyer . Subject to Sections 7.1 and 7.4, Buyer and OMGI jointly and severally hereby releases and discharges and shall indemnify, defend and hold harmless Seller and its affiliates, directors, officers, employees, controlling persons, including the Shareholder, lenders, insures, agents and representatives and their respective successors and assigns (the “Seller Covered Persons”) from and against any Claims, Environmental Claims and Losses constituting, arising out of, relating to, or attributable to (i) any Assumed Liability, (ii) any breach of any representation or warranty of Buyer set forth in this Agreement; and (iii) any breach of any covenant of Buyer set forth in this Agreement; provided, however, that Buyer’s and OMGI’s indemnification obligations under this Section 7.3 shall not apply to any Claims, Environmental Claims or Losses arising from, out of or in any manner connected with  any Claims, Environmental Claims or Losses for which any Buyer Covered Person may be entitled to indemnity pursuant to Section 7.1 above.

 

7.4         Certain Limits on Indemnification by Buyer .  Buyer and OMGI shall not be liable under Section 7.3 until the Seller Covered Persons have first suffered, sustained or incurred aggregate Claims, Environmental Claims, and Losses relating to such matters in excess of $25,000 in the aggregate, at which point Buyer and OMGI shall be liable to indemnify the Seller Covered Persons and hold them harmless from and against such $25,000, and all other such Claims, Environmental Claims and Losses in excess of the $25,000 basket amount.

 

7.5         Matters Involving Third Parties .  If any third party (including, without limitation, any Taxing authority) shall make or assert a Claim against any Party (the " Indemnified Party ") with respect to any matter which may give rise to a claim for indemnification against any other Party (the " Indemnifying Party ") under this Article 7, then the Indemnified Party shall notify each Indemnifying Party thereof promptly; provided, however, that no delay on the part of the Indemnified Party in notifying any Indemnifying Party shall relieve the Indemnifying Party from any liability or obligation under this Agreement unless (and then solely to the extent) the Indemnifying Party is damaged or prejudiced thereby. In the case of any such Claim pursuant to which only the recovery of a sum of money is being sought and the Indemnifying Party (i) enters into an agreement with the Indemnified Party (in form and substance reasonably satisfactory to the Indemnified Party) pursuant to which the Indemnifying Party agrees to be fully responsible (with no reservation of any rights other than the right to be subrogated to the rights of the Indemnified Party) for all Losses relating to such Claim and unconditionally guarantees the payment and performance of any Loss which may arise with respect to such Claim or the facts giving rise to such Claim for indemnification, and (ii) furnishes the Indemnified Party with evidence that the Indemnifying Party, in the Indemnified Party's reasonable judgment, is and will be able to satisfy any such Claim, the Indemnifying Party may, by giving written notice to the Indemnified Party, assume the defense thereof. In such case, (A) the Indemnifying Party will defend the Indemnified Party against such matter with counsel of its choice satisfactory to the Indemnified Party and (B) the Indemnified Party may retain separate co-counsel at its sole cost and expense (except that the Indemnifying Party will be responsible for the fees and expenses of any separate counsel to the Indemnified Party incurred prior to the date upon which the Indemnifying Party effectively assumes control of such defense). In the event that the Indemnifying Party is precluded from assuming control of the defense of a Claim pursuant to the terms of this Section 7.5, the Indemnifying Party may retain separate co-counsel at its sole cost and expense to participate in such defense and, in any event the Indemnified Party shall (i) provide the Indemnifying Party with all material information requested by such party relating to the defense of such Claim, (ii) confer with the Indemnifying Party as to the most cost-effective manner in which to defend such Claim and (iii) use its reasonable efforts to minimize the cost of defending such Claim. The Indemnified Party will not consent to the entry of any judgment or enter into any settlement with respect to such matter without the written consent of the Indemnifying Party (not to be withheld unreasonably), and the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to such matter without the written consent of the Indemnified Party (not to be withheld unreasonably).

 

 

 

 

8.1                  Tax Allocation . The Parties have agreed upon the allocation of the Purchase Price among the Assets using the allocation method required by Section 1060 of the Code and such allocation is set forth in Exhibit F hereto.  The Parties agree to report the federal, state and local tax consequences of the transactions contemplated herein in a manner consistent with such allocation and to not take any position inconsistent with such allocation in any tax return, refund claim, litigation, investigation or otherwise.

 

8.2                  Transfer Taxes .  Any and all transfer Taxes and fees imposed as a result of the transactions contemplated hereby (which for clarity, the Parties acknowledge and agree do not include income, capital gains or similar Taxes of Seller or Shareholder), including, without limitation, fees payable in connection with “stamping” or other public recordation or notification of documents or instruments, shall be paid in full by Buyer.  If applicable, Seller shall provide to Buyer such properly completed resale exemption and similar certificates or instruments as are necessary to claim available Tax exemptions under applicable law.

 

           8.3             Payroll Taxes .  Seller shall (and the Shareholder shall cause Seller to) make a clean cut-off of payroll and payroll Tax reporting with respect to Transferred Employees, and shall pay over to appropriate federal, state and local governmental or quasi-governmental authorities those amounts of such Taxes respectively withheld or required to be withheld for any and all periods ending on or prior to the Closing Date. Seller also shall issue by the date(s) proscribed by applicable law (including the Code) Forms W-2 for wages and salaries paid through the Closing Date.

 

8.4           Certain Provisions Related to C onsents. 

 

(a)                            To the extent that any Assumed Contract, Permit or Environmental Permit is not capable of being transferred by Seller to Buyer pursuant to this Agreement without the consent of a third party (including a governmental entity), and such consent is not obtained prior to Closing, or if such transfer or attempted transfer would constitute a breach or a violation of any law, nothing in this Agreement will constitute a transfer or an attempted transfer thereof. In the event that any such consent is not obtained on or prior to the Closing Date, Seller shall (i) provide to Buyer the benefits of the applicable Assumed Contract, Permit or Environmental Permit, (ii) cooperate in any reasonable and lawful arrangement designed to provide such benefits to Buyer, and (iii) enforce at the request and expense of Buyer and for the account of Buyer, any rights of Seller arising from any such Assumed Contract (including the right to elect to terminate such Assumed Contract in accordance with the terms thereof upon the request of Buyer). If any Permit or Environmental Permit required for the operation of the Business or the ownership or use of the Assets or the Real Property is not transferred to Buyer at Closing, Seller authorizes (to the extent permitted by law) Buyer to operate under any such Permit until the necessary consent to transfer or a new Permit or Environmental Permit is obtained.

 

 

 

 

                 8.5        Post-Closing Assistance .  In case at any time after the Closing any further action is reasonably necessary or desirable to carry out the purposes of this Agreement and to effect, consummate, confirm or evidence the consummation of the transactions contemplated hereby, each of the Parties will take such further action (including, without limitation, the execution and delivery of such further instruments and documents) as any other Party reasonably may request. Without limiting the generality of the foregoing, Seller and Shareholder will cooperate with Buyer and OMGI in the provision of any and all information requested by Buyer or OMGI in connection with (i) the administration of this Agreement, or (ii) the filing or provision of financial or other information with or to the federal Securities and Exchange Commission or other authorities, and filings with any such authority that contain any such information.

 

   8.6    Seller and Shareholder Confidentiality .

 

8.6.1    Information Concerning the Parties, the Assets, the Business . After the Closing, Seller and the Shareholder shall keep confidential and not disclose to any third party any and all information regarding (i) Buyer, or any of its affiliates (including, without limitation, the terms, conditions and existence of this Agreement and the agreements referenced herein); (ii) the Business (both as conducted prior to and after the Closing Date); or (iii) the Assets. The foregoing notwithstanding, none of the provisions in this Section 8.6.1 shall apply to any information which (i) becomes generally available to the public other than as a result of any breach of this Section 8.6.1; or (ii) first becomes available to Seller or Shareholder after the Closing Date on a non-confidential basis from a source other than Buyer or any affiliates of Buyer (provided that, to the best of the Knowledge of Seller or Shareholder, such source is not bound by a confidentiality agreement with, or other legal or fiduciary obligation to, any of Buyer or any of its affiliates). Moreover, these restrictions shall not apply to Shareholder in the performance of his obligations under the Consulting Services Agreement, in the form attached hereto as Exhibit C , provided that disclosure of any such information by Shareholder is necessary for the performance of any such obligations, is made solely for that purpose, and is not more expansive than necessary for the performance of such obligation.

 

8.6.2    Notice of Compulsory Disclosure .  In the event Seller or Shareholder is required to disclose any confidential information pursuant to applicable law, such Seller or Shareholder shall promptly notify Buyer in writing, which notification shall include the nature of the legal requirement and the extent of the required disclosure, and shall cooperate with Buyer to preserve the confidentiality of such information consistent with applicable law.

 

8.7          Tax Return Cooperation .  Seller, the Shareh older, OMGI and Buyer shall cooperate fully with each other and make available or cause to be made available to each other in a timely fashion such Tax data, prior Tax Returns and filings and other information as may be reasonably required for the preparation by Buyer, OMGI, Seller or the Shareholder of any Tax Returns, elections, consents or certificates required to be prepared and filed by any of them and in connection with any audit or other examination by any Taxing authority, or judicial or administrative proceeding relating to liability for Taxes including, without limitation, sales taxes and sales tax audits.  Each of Seller, the Shareholder, OMGI and Buyer will retain and provide to the other Parties all records and other information which may be relevant to any such Tax Return, audit or examination, proceeding or determination, and will each provide the other Parties with any final determination of any such audit or examination, proceeding or determination that affects any amount required to be shown on any Tax Return of any other Party for any period.  Without limiting the generality of the foregoing, Seller and the Shareholder will retain copies of all Tax Returns, supporting work schedules and other records relating to Tax periods or portions thereof ending prior to or on the Closing Date.

 

8.8           Litigation Support .  In the event and for so long as any Party is actively contesting or defending against any Claim in connection with (a) any transaction contemplated under this Agreement or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act or transaction on or prior to the Closing Date involving any Party, the other Parties will cooperate with the contesting or defending Party and its counsel in such contest or defense, make available its personnel, and provide such access to its books and records as may be necessary in connection with the contest or defense, at the sole cost and expense of the contesting or defending party.

 

8.9           Books and Records .   After the Closing Date, Buyer shall give Seller and the Shareholder reasonable access to the Books and Records and the opportunity to make copies thereof, at their expense, during normal business hours for reasonable and lawful business purposes relating to pre-Closing events or circumstances affecting Seller and the Shareholder and pertaining to the Assets.  Buyer shall keep the Books and Records safe and in good order for a reasonable period after the Closing Date and, at their expense, for such further periods as Seller or the Shareholder may reasonably request in writing; provided, however, that Buyer may deliver any Books and Records to Seller and the Shareholder at any time and shall have reasonable access thereto.

 

8.10         Receivables; Certain Payables .  If any monies or other assets are received by Seller or the Shareholder to which Buyer is entitled hereunder or that are included in the Assets, Seller or the Shareholder shall hold such monies and assets so received in trust for Buyer and shall account for and pay the same to Buyer within 15 days after receipt.  If any monies or other assets are received by Buyer to which Seller is entitled hereunder or that are included in Excluded Assets, Buyer shall hold such monies and assets so received in trust for Seller and shall account for and pay the same to Seller within 15 days after receipt. Further, if Buyer receives any invoices or similar instruments which under the terms hereof are the responsibility of Seller to pay or discharge, Buyer likewise shall hold and provide any such invoices or similar instruments to Seller, and Seller shall pay all such items within terms. Likewise, if Seller receives any invoice or similar instruments which under the terms hereof are the responsibility of Buyer to pay or discharge, Seller shall hold and provide any such invoices or similar instruments to Buyer, and Buyer shall pay all such items within terms. Without limiting the generality hereof, (i) Buyer (in lieu and satisfaction of any payment obligations of Buyer or OMGI under Section 3.2.4 above) shall promptly remit to Seller any payments it receives of retainage amounts deducted from payments to Seller under any Assumed Contract prior to the Closing Date; and (ii) Seller shall promptly remit to Buyer any payments it receives of retainage amounts deducted from payments to Buyer under any Assumed Contract on or after the Closing Date.

 

8.11         Non-competition .  In consideration of the mutual covenants and obligations set forth in this Agreement, including, without limitations, the payment of $100,000 of the Purchase Price:

 

8.11.1  Restrictions .  For a period of three (3) years beginning on the Closing Date, neither Seller nor Shareholder  shall (a) represent, act for, be employed by, engage in, carry on, provide consulting services to (except as provided under the Consulting Agreement, in the form attached hereto as Exhibit C ), or have a financial interest in (directly or indirectly, individually, as a member of a partnership or limited liability company, equity owner, stockholder, investor, owner, officer, director, trustee, manager, employee, agent, representative, associate or consultant), the Business (as conducted on and after the Closing Date) or any other business which competes with any of the businesses or operations of OMGI or of any of its subsidiaries or affiliates, including, without limitation, the Buyer, (as such operations and businesses are generally described on Schedule 8.11.1 hereto) within or in respect to the States of Florida or the Caribbean region (which for purposes of clarification includes, without limitation, the Bahamas) during such three (3) year period; or (b) directly or indirectly, whether as a principal, agent, officer, director, employee, consultant, independent contractor or otherwise, alone, in association with or on behalf of any other person, firm, corporation or other business organization, (1) solicit, sell, call upon, advise, do or attempt to do business with or otherwise contact for a business purpose any customer with respect to the Business (as conducted on and after the Closing Date), or (2) (I) hire or attempt to hire any employee of Buyer (after giving effect to the Closing) or any of its subsidiaries or affiliates, (II) encourage any such employee to terminate his/her employment with Buyer (after giving effect to the Closing) or any of its subsidiaries or affiliates, or (III) solicit, encourage or induce any customer of Buyer or of any of its affiliates to terminate, suspend, or other modify its relationship with Buyer (after giving effect to the Closing) or any of its subsidiaries or affiliates.

 

8.11.2      Reasonable Limitations . Seller and Shareholder agree that, and acknowledge and agree that the limitations set forth herein on their rights to compete and otherwise are incident to the sale of a business and are reasonable and necessary for the protection of Buyer and its affiliates.  In this regard, Seller and Shareholder specifically agree that the limitations as to period of time and geographic area, as well as all other restrictions on its activities specified herein, are reasonable and necessary for the protection of Buyer and its affiliates and the value of the Assets purchased by Buyer under this Agreement. Seller and Shareholder agree that, and acknowledge and agree that it is the Parties' expressed contractual intent that, in the event that the provisions of these provisions should ever be deemed to exceed the scope of business, time or geographic limitations permitted by applicable law, such provisions shall be and are hereby reformed to the maximum scope of business, time or geographic limitations permitted by applicable law.

 

8.11.3        Extension . Any violation of the covenant not to compete described in this Article 8 shall extend the time period thereof for a period of time equal to the period of time during which such violation continues. In the event Buyer or any of its affiliates is required to seek relief from such violation in any court, board of arbitration or other tribunal, then the covenant shall be extended for a period of time equal to the pendency of such proceedings and any appeals thereof.

 

            8.12     Access and Reasonable Support. In consideration of the payment by Buyer to Seller of $60,000 on the Closing Date, on and after the Closing Date, Seller and Shareholder, at their sole cost and expense, shall provide reasonably sufficient office space and support to Buyer and its employees, agents and representatives for Buyer’s Orlando, FL transitional operations for the period from the Closing Date until and including September 30, 2008. Such support shall include, without limitation, access to office premises and all assets and facilities at such premises (which shall include all such assets and facilities necessary or appropriate for conduct of the Business, as currently conducted by Seller), and to all relevant Seller personnel as of the Closing Date. In addition, Seller and Shareholder shall provide all reasonable transitional support as Buyer may reasonably request, including support services of any such personnel.

 

ARTICLE 9
Employment

 

9.1              Offer to hire .  Buyer and Seller acknowledge that, while Buyer has no obligation to make an offer of employment to any of Seller’s employees, Buyer is making offers of employment to certain of Seller’s employees (the “Employees”) with employment with Buyer effective as of Closing Date. Seller and Stockholder shall exercise reasonable efforts to insure that Employees, to whom Buyer makes employment offers, accept employment with Buyer. Each Employee who accepts Buyer’s offer of employment shall hereinafter be referred to as a “Transferred Employee”.

 

9.2              Terms of Employment .  Except as herein expressly and specifically provided otherwise, the terms of each Transferred Employee’s employment shall be as arranged between Buyer and such Transferred Employee. Prior to any such employment with Buyer, Seller shall release the Transferred Employee from any Employment Agreement with Seller, and Seller shall be solely responsible for any and all payments, obligations, liabilities, Claims and Losses as a result of the termination of employment with Seller, or otherwise with respect to any such Transferred Employee.

 

9.3              Severance . With respect to Employees who are not offered employment by Buyer, and with respect to Transferred Employees, if applicable, Seller shall be solely responsible for severance pay and similar costs and expenses in the event any of them are severed, and all other payments, obligations, liabilities, Losses and Claims.

 

9.4              Health and Welfare Benefits .  Seller and/or Shareholder shall provide all notices and fulfill all obligations, if any, under Section 4980B(f) of the Code with respect to the Transferred Employees. At Buyer’s request, and only to the extent permitted by applicable law, Seller and/or Shareholder shall deliver to Buyer (and if requested) to Buyer’s present or proposed insurance carriers or third-party administrators, on a census basis, as soon as practicable after identification of Transferred Employees, information with respect to all health, accident, workers’ compensation, disability and related claims filed by the Transferred Employees (including, without limitation, information regarding the total number of claims filed by, the total amount of benefits claimed by, and the total amount of benefits paid to such persons), to the extent requested in the case of any such carriers or administrators. At Buyer’s request, and only to the extent permitted by applicable law, Seller and/or Shareholder shall deliver to Buyer (and if requested) to Buyer’s health insurance carriers or third-party administrators, on a census basis, to the extent requested in the case of any such carriers or administrators, an update of such information through the Closing Date, as soon as practicable but no later than 15 days after the Closing Date. Such information, which may be provided directly from Seller’s computer database, shall be satisfactory in form and substance to such carriers and administrators. Effective on the Closing Date, Buyer shall provide the Transferred Employees with health and welfare benefits substantially equivalent to those provided to similarly situated current Buyer (or affiliate) employees, subject, however, to eligibility requirements under plans or policies of Buyer or its affiliates (it being understood that Transferred Employees shall be given credit for service accumulated by any such Transferred Employee with Seller for purposes of eligibility, but for not other purposes); provided, however , that Buyer reserves the right to modify or terminate such benefits from time to time after the Closing Date. Such Transferred Employees shall (subject to eligibility requirements) participate under Buyer’s health and welfare benefit plans as of the Closing Date, and neither Buyer nor OMGI shall be responsible for any hospitalization, medical, survivor benefits, life insurance, or disability Claims (or other Claims or benefits) based upon medical or dental services rendered and disability, life insurance and survivor benefits (or otherwise) which became due and owing while such Transferred Employee was employed by the Seller. In no event shall Buyer or OMGI be required to provide post-retirement medical or life insurance benefits to Transferred Employees.

 

9.5          Seller’s Employee Benefit Plans .  The Parties agree that, effective as of the Closing, Seller shall continue its exclusive sponsorship of all Employee Benefit Plans of Seller (if any), including, without limitation, any “401(k) Plan”, and Seller and/or Shareholder shall be solely responsible and liable for all obligations, responsibilities, Claims and Losses related to any such Employee Benefit Plan.

 

9.6         Wage Reporting .  As applicable, the Parties shall comply with Section 4 of the Revenue Procedure 84-77, 19&4-2 C.B. 753. Seller and/or Shareholder shall furnish (or cause to be furnished) to each Transferred Employee in accordance with Section 4 of the Revenue Procedure a Treasury Form W-2 for 2007 and 2008 (to date) for the salaries and wages paid by Seller, no later than January 31, 2009.  Buyer and/or OMGI shall furnish (or cause to be furnished) to each Transferred Employee in accordance with Section 4 of such Revenue Procedure a Treasury Form W-2 for 2008 (from the Closing Date) for the salaries and wages paid by Buyer. Buyer and/or OMGI shall file (or cause to be filed) appropriate Treasury Forms W-2 and W-3 covering the Transferred Employee(s) with the Social Security Administration for salaries and wages paid and amounts withheld by Buyer during 2008 (from the Closing Date).

 

             9.7      WARN Act . To the extent, if any, that the provisions of the WARN Act are triggered as a result of any cessation of employment with Seller, Seller and/or Shareholder shall be solely responsible for discharging any and all obligations or duties under or with respect to the WARN Act.

 

 9.8  Employee Rights .  Nothing contained herein (i) shall confer upon any former, current or future employee of Seller, Buyer or OMGI or any legal representative or beneficiary thereof any rights or remedies, including, without limitation, any right to employment or continued employment of any nature, for any specified period, or (ii) shall cause the employment status of any former, present or future employee of Buyer or OMGI to be other than terminable at will.

 

 

10.1          Survival .  The representations and warranties of the Parties contained in Articles 4 and 5 shall survive through the second (2nd) anniversary date of the Closing Date (the " Survival Period "); provided that the representations and warranties set forth in Sections 4.11 and 4.20 shall have no limitation on survival. The Parties respective representations and warranties there under shall expire as of the expiration of the applicable Survival Period and no claim for indemnification may thereafter be made with respect to any breach of any representation or warranty, the applicable Survival Period of which shall have expired, except to the extent that written notice of such breach shall have been given to the Party against which such claim is asserted on or before the date of such expiration. The covenants and agreements of the Parties herein and in other documents and instruments executed and delivered in connection with the closing of the transactions contemplated hereby shall survive (subject to the provisions of such covenants and agreements) for the maximum period permitted by law.

 

 

 

            11.1     Assignment or Transfer .  All payment, performance, bid and other bonds currently in place with respect to any Assumed Contract for work being performed or services being provided to any customer or client (collectively, “Bonds”) shall remain in place unmodified except as provided below, and except that Buyer, as of the Closing Date, shall be a principal with respect to the Bonds.

 

            11.2     Bond Indemnity Obligations . Buyer and OMGI shall assume all indemnity obligations with respect to the Bonds but only to the extent that the matter giving rise to any such obligation is attributable to Buyer’s or OMGI’s acts or omissions, or events, conditions or circumstances first and exclusively arising or existing after the Closing Date. Seller and Shareholder shall retain all indemnity obligations with respect to the Bonds to the extent that the matter giving rise to any such obligation is attributable to Seller’s acts or omissions, or events, conditions or circumstances arising or existing on or before the Closing Date.

 

            11.3.    Cooperative Efforts . All parties shall exercise reasonable efforts through their respective agents to secure arrangements with their sureties to effect the agreements in Sections 11.1 and 11.2 above.

 

            11.4     Additional Insureds . As of the Closing Date, (i) Buyer shall name Seller and Shareholder as additional insureds under Buyer’s insurance policies, with the exception of workers’ compensation policies; and (ii) Seller shall name Buyer and all of its affiliates as additional insureds under Seller’s insurance policies, with the exception of workers’ compensation policies. Neither party’s insurance coverage shall be primary or deemed to be primary, and neither party shall be required to secure waivers of subrogation rights.

 

 

 

 

 

 

12.1     Press Releases and Announcements .  All interviews, press releases and other public announcements and all announcements relating to the transactions contemplated hereby (the "Announcements") shall be prepared by Buyer, with Buyer having full editorial control over such releases and announcements; provided, however, that the Shareholder shall be consulted with respect to all such Announcements and all reasonable comments provided by the Shareholder shall be considered.

 

12.2     Third Party Beneficiaries .  Except as expressly provided in Article 7 (with respect to certain other parties who or that are entitled to be indemnified there under), this Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.

 

12.3   Entire Agreement .  This Agreement and the agreements executed pursuant hereto constitute the entire agreement between the Parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, that may have related in any way to the subject matter hereof, excluding the Confidentiality Agreement (which shall terminate at Closing with respect to prospective obligations there under).

 

12.4     Succession and Assignment .  This Agreement shall be binding upon and inure to the benefit of the Parties named herein and their respective heirs, successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests, or obligations hereunder (whether by contract, consent, merger, consolidation, operation of law or otherwise) without the prior written consent and approval of the other Party or Parties hereto.

 

12.5     Counterparts . This Agreement and all other agreements, documents and instruments executed in connection herewith may be executed in two or more counterparts (including by telecopied or emailed signature pages), each of which shall be deemed an original but all of which together will constitute one and the same instrument.

 

12.6     Headings .  The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

 

12.7   Notices .  All notices, requests, demands, claims, and other communications hereunder will be in writing. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given (i) when delivered, if personally delivered, (ii) when receipt is electronically confirmed, if faxed (with hard copy to follow via first class mail, postage prepaid), or (iii) one day after deposit with a reputable overnight courier, in each case addressed to the intended recipient as set forth below:

 

 

 

 

390 N. Orange Ave., Suite 2600,

 

Orlando, FL 32801

 

 

 

 

Facsimile:         407 ###-###-####

 

 

Email:   ***@***

 

 

 

 

390 N. Orange Ave., Suite 2600,

 

Orlando, FL 32801

 

 

 

 

Facsimile:         407 ###-###-####

 

 

Email:   ***@***

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12.8     Governing Law .  This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Florida, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Florida. Seller, Shareholder, Buyer, and OMGI hereby voluntarily consent to the jurisdiction of federal and state courts sitting in Hillsborough County, Florida, but solely with respect to litigation of disputes arising out of or relating to this Agreement, and, solely with respect to such litigation, agree that exclusive and proper venue for such litigation shall be in Hillsborough County, Florida

 

12.9     Amendments and Waivers .  No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by each Party.  No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder shall be effective unless reduced to writing and signed by the waiving Party for such purpose; and no such waiver shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.

 

12.10   Severability .  If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the Parties agree that the court making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.

 

12.11   Expenses; Transfer Taxes .  Except as set forth herein, each Party will bear his, hers or its own costs and expenses (including legal, accounting and broker fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby.  Notwithstanding the foregoing, all documentary, sales, use, registration and other transfer taxes (including, but not limited to, all applicable real estate transfer, “stamp” or stock transfer Taxes) and fees incurred in connection with the transactions contemplated hereby shall be paid by Buyer (for purposes of clarity any and all income, capital gains or similar Taxes of Seller of Shareholder are not included in such transfer taxes). If applicable, Seller shall provide to Buyer such properly completed resale exemption and similar certificates or instruments as are necessary to claim available Tax exemptions under applicable law.

 

12.12       Construction .  The Parties have jointly participated in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumptions or burdens of proof shall arise favoring any Party by virtue of the authorship of any of the provisions of this Agreement. Nothing in the disclosure Schedules shall be deemed adequate to disclose an exception to a representation or warranty made herein unless the disclosure Schedule identifies the exception with reasonable particularity and describes the relevant facts in reasonable detail.

 

12.13       Incorporation of Annexes, Exhibits and Schedules .  The Annexes, Exhibits and Schedules identified in this Agreement are incorporated herein by reference and made a part hereof.

 

12.14       Certain Remedies .  Each of the Parties acknowledges and agrees that each other Party would be damaged irreparably in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached. Accordingly, each of the Parties agrees that each other Party shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, in addition to any other remedy to which it may be entitled, at law or in equity.  It is the Parties' expressed contractual intent that the foregoing provisions be fully enforceable in accordance with their terms, regardless of the enforceability of any other provision of this Agreement with the same or similar effect.

 

12.15       Business Days .  If any time period for giving notice or taking action hereunder expires on a day which is a Saturday, Sunday or legal holiday, the time period shall automatically be extended to the business day immediately following such Saturday, Sunday or legal holiday.

 

12.16       Joint and Several Liability . With respect to all agreements, covenants, obligations, representations, warranties, and commitments under and the provisions of this Agreement (including the performance thereof) (i) of or respecting Seller and/or Shareholder, Seller and Shareholder shall in each case be jointly and severally liable under this Agreement; and (ii) of or respecting Buyer and/or OMGI, Buyer and OMGI shall in each case be jointly and severally liable under this Agreement, provided that the Parties acknowledge and agree that the Assets are being purchased by and sold and transferred to Buyer, only.

 

IN WITNESS WHEREOF, the Parties hereto have duly executed and delivered this Agreement as of the date first above written.