SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): September 11, 1995
THE LORI CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware
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State or Other Jurisdiction of Incorporation
1-6081 36-23262248
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Commission File Number I.R.S. Employer
Identification No.
500 Central Avenue, Northfield, IL 60093
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Address of principal executive offices Zip Code
Registrant's telephone number, including area code: (708) 441-7300
Not Applicable
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Former name, former address and former fiscal year, if changed since last report
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Item 5. Other Events
On September 11, 1995, the Lori Corporation ("Lori" or the
"Registrant") signed a stock purchase agreement to participate
in the acquisition of one hundred percent of the capital stock
of Spectrum Global Services, Inc. d/b/a YIELD Global
("YIELD"), a wholly owned subsidiary of Spectrum Information
Technologies, Inc. ("SIT"), for cash of approximately $6
million. YIELD provides telecommunications and computer
technical staffing services worldwide to Fortune 1000
companies and maintains an extensive, global database of
technical specialists, with an emphasis on wireless
communications capability.
The acquisition of YIELD, is subject to approval of the
bankruptcy court in which SIT's chapter 11 petition is
pending.
Effective July 4, 1995, Lori and ARTRA entered into an
employment or consulting services agreement with certain
individuals to manage Lori's entry into and development of the
telecommunications and computer technical staffing services
business.
ARTRA GROUP Incorporated through its wholly-owned subsidiary
Fill-Mor Holding Inc. currently owns 62.6% of Lori.
Item 7. Exhibits
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10.1 STOCK PURCHASE AGREEMENT, Dated September 11, 1995 by
and Among Spectrum Technologies, Inc., The Lori
Corporation, Comforce Corp.; ARTRA Group Incorporated,
Peter R. Harvey, Marc L. Werner, James L. Paterek,
Michael Ferrentino, and Christopher P. Franco.
10.2. Letter Agreement dated June 29, 1995, regarding
employment or consulting services between The Lori
Corporation, ARTRA Group Incorporated, James L.
Paterek, Michael Ferrentino, and Christopher P. Franco.
99.1 Press Release dated September 11, 1995
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunder duly authorized.
THE LORI CORPORATION
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Registrant
Dated: October 11, 1995 JAMES D. DOERING
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Vice President and Chief Financial Officer
EXHIBIT 10.1
EXECUTION COPY
STOCK PURCHASE AGREEMENT
Dated September 11, 1995
By and Among
Spectrum Information Technologies, Inc.,
The Lori Corporation,
Comforce Corp.,
ARTRA Group Incorporated,
Peter R. Harvey,
Marc L. Werner,
James L. Paterek,
Michael Ferrentino,
and
Christopher P. Franco
<PAGE>
TABLE OF CONTENTS
I. DEFINITIONS
1.1 Certain Definitions
1.2 Certain Terms
II. PURCHASE AND SALE OF STOCK
2.1 Purchase and Sale
2.2 Deposit and Guarantee
2.3 Purchase Price
2.4 Closing Date
2.5 Delivery and Payment
III. REPRESENTATIONS AND WARRANTIES OF SELLER
IV. REPRESENTATIONS AND WARRANTIES OF THE PURCHASING GROUP
V. COVENANTS AND AGREEMENTS BY SELLER
5.1 Conduct of Business
5.2 Bankruptcy Court Approval Order
5.3 Further Assurances
VI. COVENANTS AND AGREEMENTS BY THE PURCHASING GROUP 6.1 Further Assurances
6.2 Use of Spectrum Name 6.3 Pre-Closing Confidentiality 6.4
Post-Closing Confidentiality 6.5 Assumption of Certain Compensation
Expenses
VII. ADDITIONAL COVENANTS AND AGREEMENTS
BY THE MANAGERS AND FRANCO
7.1 Further Assurances
VIII. SELLERS CONDITIONS TO CLOSING
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IX. PURCHASERS CONDITIONS TO CLOSING
X. TERMINATION
10.1 Termination
10.2 Effect of Termination
XI. RELEASES, INDEMNIFICATION AND SURVIVAL OF REPRESENTATIONS 11.1 Releases
11.2 Indemnification by Seller 11.3 Indemnification by Purchaser and
Lori 11.4 Indemnification by Paterek and Ferrentino 11.5
Indemnification by Guarantors 11.6 [Intentionally Omitted] 11.7
Indemnification Procedures
11.7.1 Notice of Asserted Liability
11.7.2 Defense of Asserted Liability
11.8 Termination of Indemnification Obligations
11.8 Termination of Indemnification Obligations
XII. MISCELLANEOUS
12.1 Expenses 12.3 Non-Competition Agreement 12.4 Governing Law 12.5
Jurisdiction 12.6 Captions 12.7 Notices 12.8 Parties in Interest 12.9
Severability 12.10 Counterparts 12.11 Entire Agreement 12.12 Amendments
12.13 Third Party Beneficiaries 12.14 Gender
12.15 Protection of the Value of the Company
12.16 Cooperation - Tax Matters
XIII. BANKRUPTCY COURT APPROVALS AND PROCEDURES
13.1 Sale Order
13.2 [Intentionally Omitted]
13.3 Notice
13.4 Competing Bid
13.5 Competing Bidders
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EXHIBITS
Exhibit A Form of Escrow Agreement Exhibit B Form of Guarantee of Peter R.
Harvey Exhibit C Form of Guarantee of Marc L. Werner Exhibit D [INTENTIONALLY
OMITTED] Exhibit E Form of Guarantee of The Lori Corporation Exhibit F Form of
Guarantee of ARTRA Group Incorporated Exhibit G [INTENTIONALLY OMITTED] Exhibit
H Form of Certification that an Entity Transferor
is Not a Foreign Person
Exhibit I Form of General Release and Waiver of Donald J. Amoruso
Exhibit J Form of General Release and Waiver of Gordian Group, L.P.
Exhibit K Form of Mutual Release and Waiver Between Spectrum Global
Services, Inc. and Gerald K. Sandler
Exhibit L [INTENTIONALLY OMITTED]
Exhibit M Form of Mutual Release Between Spectrum Information
Technologies Inc. and James L. Paterek
Exhibit N Form of Mutual Release Between Spectrum Information
Technologies, Inc. and Michael Ferrentino
Exhibit O Form of Mutual Release Between Spectrum Information
Technologies, Inc. and Christopher P. Franco
Exhibit P Form of Manager Escrow Agreement
Exhibit Q Form of Non-Competition Agreement
Exhibit R Form of Confidentiality Agreement
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated September 11, 1995 by and among
SPECTRUM INFORMATION TECHNOLOGIES, INC., a corporation organized under the laws
of the State of Delaware ("Seller") and THE LORI CORPORATION, a corporation
organized under the laws of the State of Delaware ("Lori"), COMFORCE CORP., a
corporation organized under the laws of the State of Delaware ("Purchaser"),
ARTRA GROUP INCORPORATED, a corporation organized under the laws of the State of
Pennsylvania ("ARTRA"), PETER R. HARVEY ("Harvey"), MARC L. WERNER ("Werner"),
JAMES L. PATEREK ("Paterek"), MICHAEL FERRENTINO ("Ferrentino"), and CHRISTOPHER
P. FRANCO ("Franco").
W I T N E S S E T H :
WHEREAS, Seller owns 100 shares of common stock, $0.01 par
value, being all of the issued and outstanding shares of capital stock (the
"Stock") of SPECTRUM GLOBAL SERVICES, INC. d/b/a YIELD GLOBAL (the "Company"),
and the Company owns 100 shares of common stock, $0.01 par value, being all of
the issued and outstanding shares of capital stock of SUMTEC CORPORATION
("Sumtec"), each a corporation organized under the laws of the State of
Delaware; and
WHEREAS, on January 26, 1995 Seller commenced case no.195 1069
0260 under chapter 11 of title 11 of the United States Bankruptcy Code, 11
U.S.C. ss.ss. 101 et. seq. (the "Bankruptcy Code" and the "Chapter 11 Case"), in
the United States Bankruptcy Court for the Eastern District of New York (the
"Bankruptcy Court"); and
WHEREAS, Seller desires to sell and transfer to Purchaser, and
Purchaser desires to purchase and accept from Seller, 100 percent of the Stock
pursuant to the terms of this Agreement (as defined below);
NOW, THEREFORE, in consideration of the mutual covenants and
agreements of the parties contained herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. In addition to the terms defined throughout
this Agreement (as defined below), the following terms shall have the following
meanings (such meanings to be equally applicable to the singular and plural
forms thereof):
"Affiliate" means any other Person which, directly or indirectly,
controls or is controlled by or is under common control with such Person and,
without limiting the
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generality of the foregoing, includes (i) any Person which beneficially
owns or holds 25% or more of any class of voting securities of such Person or
25% or more of the equity interest in such Person, (ii) any Person of which such
Person beneficially owns or holds 25% or more of any class of voting securities
or in which such Person beneficially owns or holds 25% or more of the equity
interest in such Person and (iii) any director, officer or employee of such
Person. For the purposes of this definition, the term "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.
"Agreement" means this Agreement together with all exhibits, schedules,
supplements and documents as may be attached hereto or incorporated herein by
reference.
"Asserted Liability" has the meaning ascribed thereto in Section 11.7.1
"Audited Statements" has the meaning ascribed thereto in Section 3.5.
"Bankruptcy Code" has the meaning ascribed thereto in the Recitals.
"Bankruptcy Court" has the meaning ascribed thereto in the Recitals.
"Bankruptcy Court Approval Order" means an order by the Bankruptcy
Court for the Eastern District of New York approving this Agreement and the
transactions contemplated hereunder pursuant to Sections 105, 363, 365 of the
Bankruptcy Code, and including, without limitation, a decretal paragraph
pursuant to Section 363(f) of the Bankruptcy Code that the Stock shall be sold
to Purchaser free and clear of any interest, rights or options and/or any liens,
claims, encumbrances of any kind in such Stock of any Person whatsoever.
"Business" means the business of the Company, as it is presently
conducted by the Company, of providing, on a temporary, project or peak period
basis, personnel (a) who are qualified designers, drafters, engineers, computer
programmers, systems analysts, technicians and/or other skilled personnel and
(b) who under the direct supervision and control of a particular client (or
under the direct supervision and control of any such personnel who is under the
direct supervision and control of a particular client) provide technical and
consulting services to industrial, commercial, communications and governmental
customers and clients in the areas of computer programming, information
technology, design, drafting, engineering, telecommunications, wireless,
transmission, switching, CATV systems, OSP and construction, premises network
and data services, support services, systems analysis, technical publications,
consulting and technical staff augmentation services.
"Chapter 11 Case" has the meaning ascribed thereto in the Recitals.
"Claims Notice" has the meaning ascribed thereto in Section 11.7.1.
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"Closing" means the consummation of the transaction described
herein including the execution and delivery of all Property in Seller's
possession as described in Section 2.5(b)(iii), funds, documents, certificates,
resolutions, assignments and opinions contemplated in this Agreement.
"Closing Adjustment" means the adjustment, if any, made at Closing to
the Closing Payment to reflect the amount (i) by which the cash of the Company
has been reduced as a result of the payment of cash dividends pursuant to
Section 5.1(b)(i); (ii) by which Seller shall be reimbursed by the Purchaser for
any amounts of salary, expenses, benefits or other compensation actually paid on
or after July 1, 1995 by Seller to each of the Managers and Franco pursuant to
Section 6.5; (iii) by which the Purchaser shall be reimbursed by the Seller for
any amounts of salary, expenses, benefits or other compensation actually paid on
or after July 1, 1995 to Gerald K. Sandler, Gus Petruzzelli and Albert D.
Panico; and (iv) of the increase in the Closing Payment equal to one-half of the
intercompany payables reflected on Schedule 1.1 - Closing Adjustment effective
as of the Closing. Schedule 1.1-- Closing Adjustment shall set forth the amount
of such adjustment as of the date hereof, which shall be updated by mutual
consent of Purchaser and Seller to reflect the amount of such adjustment
effective as of the Closing. If Purchaser and Seller shall be unable to agree on
the amount of the Closing Adjustment, then such amount shall be determined by an
accounting firm jointly selected by Seller and Purchaser, which determination
shall be final and binding. If Purchaser and Seller cannot agree upon the
selection of an accounting firm, then each of Seller and Purchaser shall choose
an accounting firm and such accounting firms shall jointly choose an accounting
firm to determine the Closing Adjustment, the choice of which shall be binding
upon each of Purchaser and Seller. The costs of obtaining such determination
shall be shared equally by Seller and Purchaser.
"Closing Date" means the established time for Closing, which shall be
prior to any termination of this Agreement pursuant to Section 10.1 or Section
10.3 and shall mean the later of (a) immediately upon the Bankruptcy Court
Approval Order or (b) such other time as shall be agreed upon by Purchaser and
Seller.
"Closing Payment" has the meaning ascribed thereto in Section 2.3(a).
"Company" has the meaning ascribed thereto in the Recitals.
"Competing Bid" has the meaning ascribed thereto in Section 13.4.
"Competing Bidder" has the meaning ascribed thereto in Section 13.4.
"Confidentiality Agreement" has the meaning ascribed thereto in
Section 13.5.
"Deposit" means the payment of Five Hundred Thousand Dollars ($500,000)
in cash made by Purchaser to Seller on the date hereof pursuant to Section
2.2(a).
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"Dollars or $" means the currency of the United States of America.
"Escrow Agent" means Cleary, Gottlieb, Steen & Hamilton.
"Escrow Agreement" has the meaning ascribed thereto in Section 2.2(b).
"Ferrentino" has the meaning ascribed thereto in the Preamble.
"Franco" has the meaning ascribed thereto in the Preamble.
"GAAP" means United States generally accepted accounting principles as
in effect at the date of Closing.
"Guarantees" means the guarantees made for the benefit of Seller
(substantially in the form of Exhibits B, C, D, E and F hereto) and delivered on
the date hereof by Harvey, Werner, Lori, and ARTRA pursuant to Section 2.2(c).
"Guarantors" means Harvey, Werner, Lori and ARTRA.
"Harvey" has the meaning ascribed thereto in the Preamble.
"Indemnified Party" means the party who has made a claim for
indemnification.
"Indemnifying Party" means the party against whom a claim for
indemnification is made.
"Lori" has the meaning ascribed thereto in the Preamble.
"Manager or Managers" means, individually, Paterek or Ferrentino or,
collectively, Paterek and Ferrentino, as the context requires.
"Manager Escrow Agreement" has the meaning ascribed thereto in Section
11.4(b).
"Paterek" has the meaning ascribed thereto in the Preamble.
"Person" means an individual, a corporation, a limited liability
company, a partnership, an association, a business trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Property" means all of the following assets of the Company to the
extent the same are owned and utilized by Company in connection with the
operation of the Business as of the date hereof:
(a) "General Intangibles" - (i) the right to use the names
"YIELD TechniGlobal", "Yield Global", "Sumtec", and (ii) any similar names, and
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the right to utilize any and all of the following associated with, arising out
of, relating to or utilized, as of the date hereof, in connection with the
Business: (A) any and all trade names, trademarks, copyrights, service marks,
logos and slogans (including, without limitation, all registrations, filings and
certificates and the sole and exclusive rights to file and/or prosecute any such
registrations, filings and certificates); (B) proprietary information and
know-how developed in the Business and owned by the Company; and (C) software
owned by the Company; provided, however, that the term "General Intangibles"
shall not include the names "Spectrum Global Services, Inc." or "Spectrum" or
any similar name, and, except as provided in Section 6.2, the Company or its
Affiliates shall not use or have the right to use "Spectrum Global Services,
Inc." or "Spectrum" or any similar name and shall not utilize any of the
foregoing in association with the name of "Spectrum Global Services, Inc." or
"Spectrum";
(b) "Customer Materials" - any and all agreements, orders,
requirements and inquiries relating to the operation of the Business from or
with the Company's customers (present or past) or prospective customers;
(c) "Records" - the originals or copies of those business or
financial records of the Company, evidencing the Customer Materials, Resumes,
General Intangibles, Equipment or relating to Company employees;
(d) "Equipment" - all of the furniture and equipment owned
and utilized by the Company in connection with the operation of the Business;
(e) "Other Assets" - all of the office supplies, stock, paper,
computer software, and other tangible personal property owned and used by the
Company in connection with the operation of the Business;
(f) "Accounts Receivable" - means all accounts receivable of
the Company, whether billed or unbilled, as they exist in the financial books
and records of the Company; provided, however, that in no event shall any
include any intercompany receivable due to the Company from Seller or its
Affiliates be deemed an account receivable;
(g) "Resumes" - all information for or with respect to current
or former or prospective employees or candidates in whatever medium that it be
currently manifested, depicted, stored or presented including, but not limited
to, paper, hardcopy, computer disks, tapes and databases of the Company, whose
services are or have been provided or may be provided to the Company's customers
prior to the date hereof; and
(h) "Real Property" - those leasehold interests described on
Schedule 1.1 - Real Property.
"Purchase Price" has the meaning ascribed thereto in Section 2.3.
"Purchaser" has the meaning ascribed thereto in the Preamble.
<PAGE>
"Purchasing Group" means Lori, Purchaser, ARTRA, Harvey,
Werner, the Managers and Franco.
"Release" means the mutual releases entered into between Seller and
each of Paterek, Ferrentino and Franco, dated the Closing Date, substantially in
the forms of Exhibits M, N, and O hereto, respectively.
"Seller" has the meaning ascribed thereto in the Preamble.
"Stock" has the meaning ascribed thereto in the Recitals.
"Systems Integration" means consulting services and systems integration
relating to the systems analysis, design, support, development and/or
implementation of solutions to clients in the fields of telecommunications,
computing and information technology, including the providing of services on a
contract labor basis for the purposes of performing the services listed above
but only to the extent such services are directly related to the project,
engagement, system or solution for which Seller's Systems Integration business
was retained by the client.
"To the knowledge of Seller" means to the actual knowledge of the
officers of Seller, other than Franco, as set forth in the most recent
Securities and Exchange Commission Form 10-K.
"Werner" has the meaning ascribed thereto in the Preamble.
1.2 Certain Terms. All references to Articles and Sections herein are
to the Articles and Sections of this Agreement unless otherwise specified.
ARTICLE II
PURCHASE AND SALE OF STOCK
2.1 Purchase and Sale. Subject to the terms and conditions herein
stated, and pursuant to Sections 105, 363 and 365 of the Bankruptcy Code, Seller
agrees to sell and transfer to Purchaser on the Closing Date, and Purchaser
agrees to purchase and accept from Seller on the Closing Date, the Stock.
2.2 Deposit and Guarantee.
(a) On the date hereof, Purchaser shall deliver to the Escrow
Agent on behalf of Seller the Deposit of Five Hundred Thousand Dollars ($
500,000) in cash, to be held in escrow pursuant to Section 2.2(b) below, which
Deposit shall be refundable to Purchaser only under the circumstances provided
in Section 10.2(b).
<PAGE>
(b) The Deposit shall be held in escrow and disposed of
pursuant to the terms of an escrow agreement of even date herewith (the "Escrow
Agreement") among Seller, Purchaser and the Escrow Agent substantially in the
form of Exhibit A hereto.
(c) On the date hereof, Harvey, Werner, Lori and ARTRA shall
deliver to Seller the Guarantees accompanied by financial statements for a
period ending no earlier than a date which is four (4) months prior to the date
hereof. For purposes of this Agreement, Seller acknowledges Werner's letter
setting forth his net worth constitutes his financial statements.
2.3 Purchase Price.
(a) The aggregate Purchase Price for the Stock is Six Million
Dollars ($6,000,000), which amount is comprised of (i) the Deposit (as described
in Section 2.2) and (ii) the closing payment of Five Million Five Hundred
Thousand Dollars ($ 5,500,000) which shall be payable on the Closing Date in
immediately available funds by federal funds check or certified check or bank
wire to an account designated by Seller (the "Closing Payment") and which shall
be subject to the Closing Adjustment.
(b) On or before the Closing, Seller and Purchaser shall
adjust the Closing Payment by the Closing Adjustment, if applicable.
(c) As additional mutual consideration, Seller and each of the
Managers and Franco shall enter into the Releases on the Closing Date.
2.4 Closing Date . Delivery of the Stock and payment to Seller of the
Purchase Price at the Closing shall take place at the offices of Cleary,
Gottlieb, Steen & Hamilton at One Liberty Plaza, New York, New York, on the
Closing Date or at such other location as shall be necessary or appropriate to
close this transaction prior to the issuance of any stay of the Bankruptcy Court
Approval Order.
2.5 Delivery and Payment. At the Closing, each of the following
deliveries shall be made by the parties as hereinbelow indicated and each such
delivery shall be and be deemed to be made simultaneously:
(a) Purchaser shall deliver to Seller:
(i) The Closing Payment, after taking into account any
Closing Adjustment, in immediately available funds by federal funds check or
certified check or bank wire to an account designated by Seller; and
(ii) Executed counterparts, and/or certified copies, as
the case may be, of the instruments and documents required to be delivered to
Seller at the Closing as herein provided.
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(b) Seller shall deliver and/or transfer ownership of to
Purchaser (or if so indicated, the designee of Purchaser):
(i) Certificates representing the Stock duly endorsed
in blank or accompanied by duly executed stock assignment power, in either case
with signatures guaranteed;
(ii) The resignations of the officers and directors of
the Company (other than with respect to those parties designated by Purchaser)
effective immediately following the Closing;
(iii) The items listed on Schedule 2.5(b)(iii) (subject
to finalization of corporate-wide inventory with respect to items owned by
Persons other than Seller) provided that, notwithstanding anything to the
contrary contained herein, Seller makes no representation concerning the
completeness or effectiveness of any of the corporate documents of Sumtec
referred to thereon; and
(iv) Executed counterparts, and/or certified copies, as
the case may be, of the instruments and documents required to be delivered to
Purchaser at the Closing as herein provided.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
In order to induce Purchaser to execute and perform this Agreement,
Seller does hereby represent and warrant (which representations and warranties
shall be and be deemed to be continuing and survive in accordance with Section
11.8(a) the execution and delivery of this Agreement and the Closing Date) as
follows:
3.1 Each of Seller and the Company is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation. Each of Seller and, to the knowledge of Seller, the Company is
duly qualified to do business as a foreign corporation, and is in good standing,
in all jurisdictions, if any, wherein such qualification is necessary and where
failure so to qualify would have material adverse effect on the business,
properties or finances of either such corporation. To the knowledge of Seller,
Seller has received no notice that the Company does not have all licenses,
permits, certifications, registrations, approvals, consents and franchises
necessary to own or lease and operate the Company's properties and to conduct
the Company's Business as presently being conducted; and Seller has received no
notice that Seller does not have all licenses, permits, certifications,
registrations, approvals, consents and franchises, the lack of which would
materially adversely affect the ability of Seller to consummate this
transaction.
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3.2 To the knowledge of Seller, Seller has received no notice that the
Company does not own the Company's Accounts Receivable, Equipment or Other
Assets; and to the knowledge of Seller, Seller has received no notice that the
Company does not own, or otherwise have the right to use, the General
Intangibles except as listed on Schedule 3.2. Except as listed on Schedule 3.2,
Seller has not licensed, sold, leased or encumbered the Property (other than
those assets the lack of which would not materially adversely affect the
Business). To the knowledge of Seller, Seller has received no notice that the
Company does not have the right to use the Resumes.
3.3 The authorized and outstanding capitalization of the Company is as
set forth on Schedule 3.3. As of the date hereof there is no authorized and/or
issued and outstanding shares of capital stock of the Company and/or rights to
purchase shares of capital stock of the Company except as set forth on Schedule
3.3. The issued and outstanding shares of the Company have been duly authorized
and validly issued, and all such outstanding shares are fully paid and
nonassessable. There are no outstanding options, warrants and similar rights to
purchase shares of the Company's capital stock. There are no preemptive rights.
Except as set forth on Schedule 3.3, no cash or non-cash dividends or other
distributions of the assets of the Company have been declared, made or paid, or
set aside for payment on or with respect to the capital stock of the Company.
Upon the delivery of the certificates evidencing the Stock duly endorsed in
blank or accompanied by duly executed stock assignment powers, Purchaser shall
acquire good and marketable title in and to the Stock free and clear of all
liens, claims and encumbrances and rights and options of others.
3.4 Subject to the approval of the Bankruptcy Court and compliance with
applicable requirements of the Bankruptcy Code: (i) Seller has the full
corporate power and authority to execute, deliver and perform this Agreement and
to consummate the transactions contemplated hereby; (ii) the execution, delivery
and performance of this Agreement, the consummation by Seller of the
transactions herein contemplated and the compliance by Seller with the terms of
this Agreement have been duly authorized by all necessary corporate action, and
this Agreement has been duly and properly authorized, executed and delivered by
Seller; (iii) this Agreement is the valid and binding obligation of Seller,
enforceable in accordance with its terms, subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and the discretion of
courts in granting equitable remedies; (iv) the execution, delivery and
performance of this Agreement by Seller and the consummation by Seller of the
transactions herein contemplated does not, and will not, with or without the
giving of notice or the lapse of time, or both, (A) result in any violation of
the Certificate of Incorporation or By-laws of Seller, (B) result in a breach of
or conflict with any of the terms or provisions of, or constitute a default
under, or result in the modification or termination of, or result in the
creation or imposition of any lien, security interest, charge or encumbrance
upon any of the properties or assets of Seller and/or pursuant to, any
indenture, mortgage, note, contract, commitment or other agreement or instrument
to which Seller is a party or by which it or any of its properties or assets are
or may be bound or affected which would have a material adverse effect on
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Seller's ability to consummate the transactions herein contemplated; (C) violate
any existing applicable law, rule, regulation, judgment, order or decree of any
governmental agency or court, domestic or foreign, having jurisdiction over
Seller or any of its properties or businesses; or (D) have any material effect
on any permit, certification, registration, approval, consent, license or
franchise necessary for Seller to own or lease and operate of its properties and
to conduct its businesses or the ability of Seller to make use thereof. Since
commencingits Chapter 11 Case, Seller has been duly authorized to operate its
businesses and manage its properties pursuant to Sections 1107 and 1108 of the
Bankruptcy Code. No consent, approval, authorization or order of any court
(other than the Bankruptcy Court), governmental agency, authority or body or any
party to an agreement to which Seller is a party or by which it is bound, is
required in connection with the execution, delivery and performance of this
Agreement, or the consummation by Seller of the transactions contemplated by
this Agreement.
3.5 Prior to the date hereof, Seller has delivered to Purchaser
consolidated financial statements, which include the accounts of the Company as
of March 31, 1995, and the results of operations of the Company for the fiscal
year ended March 31, 1995, audited by BDO Seidman, LLP ("Audited Statements")
and the most recent unaudited consolidated interim financial statements, which
include the accounts and results of operations of the Company. To the knowledge
of Seller, the Audited Statements fairly present the financial position of the
Company as of the respective dates thereof and the results of operations, and
changes in financial position of the Company, for each of the periods covered
thereby. To the knowledge of Seller, the Audited Statements have been prepared
in conformity with GAAP, applied on a consistent basis throughout the periods
covered. As of the date of any balance sheet forming a part of the Audited
Statements, and except as and to the extent reflected or reserved against
therein, the Company, to the knowledge of Seller, did not have any material
liabilities, debts, liens, security interests or encumbrances, obligations or
claims (absolute or contingent) asserted against it which should have been
reflected in a balance sheet or the notes thereto.
3.6 Seller has not incurred any liability for any finder's fees or
similar payments in connection with the transactions herein contemplated except
as set forth on Schedule 3.6.
3.7 To the knowledge of Seller, except as set forth on Schedule 3.7,
the Company is not in default, in any material respect, under the terms of any
outstanding agreement which is material to the Business, operations, Properties,
or condition of the Company; and there exists no event of default or event
which, with notice and/or the passage of time, or both, would constitute any
such default. In addition, to the knowledge of Seller, except as set forth on
Schedule 3.7, there are no material claims, actions, suits, proceedings,
arbitrations, investigations or inquiries against the Company before any court
or governmental agency, court or tribunal, domestic or foreign, or before any
private arbitration tribunal, pending, or, to the knowledge of Seller,
threatened against the Company or involving its Properties or Businesses which,
if determined adversely to the Company, would, individually or in the aggregate,
result in a material adverse change in the financial position, shareholder's
equity,
<PAGE>
results of operations, Properties, Business, management or affairs of the
Company, or which would prevent the consummation of the transaction described
herein. To the knowledge of Seller, except as set forth on Schedule 3.7, there
are no outstanding orders, judgments or decrees or any court, governmental
agency or other tribunal specifically naming the Company or enjoining the
Company from taking, or requiring the Company to take, any action by which the
Company or its Properties or Business would be materially adversely affected.
3.8 Seller has included the Company in its consolidated federal income
tax returns and has filed all applicable state and local income tax returns for
the periods November 1, 1993 through March 31, 1994, which were required to be
filed under the laws of the United States and all applicable states, and has
paid all such income taxes which were shown on such returns to be due or are
otherwise due and owing (other than such taxes that are being disputed in good
faith), except to the extent that the failure to file such returns or pay such
tax would not have a material adverse effect on the Business. Seller has also
filed a consolidated federal and all applicable state tax extension forms for
the periods April 1, 1994 through March 31, 1995. No penalties or other charges
are due with respect to the late filing of any such income tax return. To the
knowledge of Seller, each such income tax return heretofore filed by Seller with
respect to the Company correctly and accurately reflects the amount of its
income tax liability thereunder.
3.9 The officers and members of the Board of Directors of the Company
are as set forth on Schedule 3.9.
3.10 Since the date of the most recent balance sheet included in the
Audited Statements, there has not been, with respect to the Company (except as
set forth in or permitted by this Agreement, or as set forth on Schedule 3.10,
or in the ordinary course of business):
(i) To the knowledge of Seller, any change in its
accounting methods or practices (including, without limitation, any change in
depreciation, amortization and/or goodwill policies or rates);
(ii) To the knowledge of Seller, any loan by the
Company to any Person or the issuance of any guaranty by the Company for or with
respect to its own or another obligation;
(iii) To the knowledge of Seller, any waiver or release
of any material right or claim of the Company;
(iv) To the knowledge of Seller, any amendment,
termination or modification of any material agreement or license to which the
Company is a party which has or may have a material affect on the financial
condition, Business or Property of the Company; and
<PAGE>
(v) To the knowledge of Seller, any agreement by the
Company to do or perform any of the things described in this Section 3.10.
3.11 To the knowledge of Seller, no material breach or default exists
with respect to the customer contracts of the Company.
3.12 The representations, warranties, covenants and agreement of Seller
contained in this Agreement are true, accurate, correct and complete in all
material respects as of the date hereof and shall be true, accurate and complete
in all material respects as of the Closing.
3.13 Notwithstanding anything to the contrary contained herein, Seller
makes no representations concerning Sumtec.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASING GROUP
In order to induce Seller to execute and perform this Agreement, the
members of the Purchasing Group, where relevant, do hereby severally represent
and warrant (which representations and warranties shall be and be deemed to be
continuing and survive in accordance with Section 11.8(b) the execution and
delivery of this Agreement and the Closing Date) as follows:
4.1 Each of Purchaser and Lori is a corporation duly organized, validly
existing and in good standing under the laws of the state of its incorporation.
Each of Purchaser and Lori is duly qualified to do business as a foreign
corporation, and is in good standing, in all jurisdictions, if any, wherein such
qualification is necessary and where failure so to qualify would have material
adverse effect on the ability to consummate this transaction.
4.2 (i) Each member of the Purchasing Group states for itself that it
has the full power and authority, whether corporate or otherwise, or in such
member's individual capacity, as the case may be, to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby;
(ii) the execution, delivery and performance of this Agreement, the consummation
by Purchaser, Lori and ARTRA of the transactions herein contemplated and the
compliance by Purchaser, Lori and ARTRA with the terms of this Agreement have
been duly authorized by all necessary corporate action, and this Agreement has
been duly and properly authorized, executed and delivered by Purchaser, Lori and
ARTRA; (iii) this Agreement is the valid and binding obligation of each member
of the Purchasing Group enforceable in accordance with its terms, subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency, reorganization,
moratorium and other laws affecting the rights of creditors generally and the
discretion of courts in granting equitable remedies; (iv) the execution,
delivery and performance of this Agreement by Purchaser, Lori and ARTRA and the
consummation by Purchaser, Lori and ARTRA of the transactions herein
contemplated does not, and will not, with or without the giving of notice or the
lapse of time,
<PAGE>
or both, (A) result in any violation of the Certificate of
Incorporation or By-laws of Purchaser, Lori and ARTRA, (B) result in a breach of
or conflict with any of the terms or provisions of, or constitute a default
under, or result in the modification or termination of, or result in the
creation or imposition of any lien, security interest, charge or encumbrance
upon any of the properties or assets of Purchaser, Lori or ARTRA and/or pursuant
to, any indenture, mortgage, note, contract, commitment or other agreement or
instrument to which Purchaser, Lori or ARTRA is a party or by which it or any of
its properties or assets are or may be bound or affected; (C) violate any
existing applicable law, rule, regulation, judgment, order or decree of any
governmental agency or court, domestic or foreign, having jurisdiction over
Purchaser, Lori and ARTRA or any of its properties or businesses; or (D) have
any material effect on any permit, certification, registration, approval,
consent, license or franchise necessary for Purchaser, Lori and ARTRA to own or
lease and operate any of its properties and to conduct its businesses or the
ability of Purchaser, Lori and ARTRA to make use thereof. No consent, approval,
authorization or order of any court, governmental agency, authority or body or
any party to an agreement to which Purchaser, Lori or ARTRA is a party or by
which it is bound, is required in connection with the execution, delivery and
performance of this Agreement, or the consummation by Purchaser, Lori or ARTRA
of the transactions contemplated by this Agreement.
4.3 Each of the Guarantors hereby represents and warrants that the
financial statements delivered pursuant to Section 2.2(c) fairly present the
financial position of such Guarantor as of the respective dates thereof and, in
the case of Lori and ARTRA, the results of operations, and changes in financial
position of each, for the periods covered thereby.
4.4 The Managers and Franco have been employed by Seller; the Managers
are aware of the operational aspects of the Business and the Company's financial
condition and results of operations; and Franco is generally aware of the
operational aspects of the Business and the Company's financial conditions and
results of operations. The Managers and Franco hereby represent and warrant
that, to the best of their knowledge and belief, the representations and
warranties made by Seller herein for which the Managers and Franco have
responsibility or control or actual knowledge are true, accurate and complete.
4.5 Each of Paterek and Ferrentino hereby represents and warrants that
to his knowledge no facts, events or circumstances exist that could reasonably
be expected to give rise to any obligations, expenses or liabilities of
whatsoever nature of Seller or its Affiliates other than as set forth on
Schedule 4.5 and except such obligations, expenses or liabilities arising in the
ordinary course of business.
4.6 Each member of the Purchasing Group hereby represents and warrants
that, and each other member of the Purchasing Group hereby represents and
warrants that to its actual knowledge, no former director or officer of Spectrum
or any of its corporate Affiliates is a member of the Purchasing Group or is an
active participant in the management of a member of the Purchasing Group other
than Paterek, Ferrentino and Franco.
<PAGE>
4.7 Purchaser hereby represents and warrants that it shall not have
unreasonably small capital for the business in which each of them is engaged and
proposes to be engaged following the consummation of the transaction herein
contemplated.
4.8 The representations, warranties, covenants and agreement of each
member of the Purchasing Group, contained in this Agreement are true, accurate
and correct in all respects as of the date hereof and shall be true, accurate
and correct in all material respect as of the Closing.
ARTICLE V
COVENANTS AND AGREEMENTS BY SELLER
From the date hereof until the Closing Date, and after the Closing Date
with respect to Section 5.1(h), Seller covenants to and agrees with Purchaser
that:
5.1 Conduct of Business.
(a) Seller shall cause and shall permit each Manager to cause
the Company to operate the Business in the usual and ordinary course;
(b) Seller shall not remove or transfer to itself from the
Company any assets, including but not limited to, the payment of cash dividends;
provided, however, that (i) Seller reserves the right to withdraw current
profits through the payment of cash dividends, to the extent allowed by the
Bankruptcy Court, which payments shall offset on a dollar for dollar basis the
Closing Payment as a Closing Adjustment; (ii) Seller shall remove those assets
in the Company's possession or located at the Company's premises designated on
Schedule 2.5(b)(iii) (subject to finalization of corporate-wide inventory with
respect to times owned by Persons other than Seller); and (iii) Seller reserves
the right to transfer to itself an amount equal to any amount paid by Seller to
a third party on behalf of the Company consistent with past practice (such as,
e.g., comprehensive general liability coverage, medical insurance, worker's
compensation in New York and Texas and New York State disability) or any other
payment required to be paid by Seller in order to avoid a breach of any
representation, warranty, covenant or agreement of Seller herein. The parties
hereto acknowledge that, except as specifically provided for herein, the
underlying Property owned by the Company on the Closing Date will continue to be
owned by the Company immediately after the Closing;
(c) Seller shall not prohibit or hinder the Managers from
functioning as the senior management team of the Company, and Seller understands
that at Closing Purchaser shall reimburse Seller, by means of a Closing
Adjustment due to Seller from Purchaser, any amounts for salary or other
compensation actually paid on or after July 1, 1995, by Seller to each of the
Managers;
<PAGE>
(d) Seller shall not prohibit or hinder Franco from performing
the necessary legal duties of the Company, and Seller understands that at
Closing Purchaser shall reimburse Seller, by means of a Closing Adjustment due
to Seller from Purchaser, any amounts for salary, expenses, benefits or other
compensation actually paid on or after July 1, 1995, by Seller to Franco;
(e) Seller shall not prohibit or hinder the officers and other
authorized representatives of Purchaser from (i) access, from time to time and
at one or more times, to the plants, properties, offices and books and records
of the Company, during normal business hours and upon reasonable advance notice,
and in connection with such books and records, such inspection shall be at the
offices where such records are normally maintained, and such parties shall be
entitled to make copies of and abstracts from any of such books and records for
purposes of verifying the representations and warranties of Seller hereunder;
(ii) the opportunity to meet during normal business hours and upon reasonable
advance notice, correspond and communicate with the officers, directors,
employees, counsel and accountants to the Company, and to secure from each such
information as such parties shall deem necessary or appropriate; and (iii) the
opportunity to review and copy such other, further and additional financial and
operating data, materials and information as to the business and operations of
the Company as may be reasonably requested by such parties for purposes of
verifying the representations and warranties of Seller hereunder; provided
however, that all such information and material secured by such parties in the
course of such investigation shall be and be deemed to be confidential and shall
be used solely in connection with the transactions herein described, and all
written memoranda and documents and other tangible evidence of such information
shall be required, pursuant to a confidentiality agreement, either to be
returned to the Company or destroyed in the event the subject acquisition is not
consummated; and provided, further, that the foregoing does not unreasonably
interfere with or disrupt the Business or Seller's business;
(f) At all times prior to the Closing Date, Seller shall
promptly notify Purchaser in writing of the occurrence of any event that will or
may result in the failure to satisfy the conditions contained in Article IX
hereof; and
(g) Seller shall refrain from making any adverse statements
about any member of the Purchasing Group and such member's business that could
reasonably be expected to, and that do, have a material adverse consequence to
any member of the Purchasing Group, other than any such statements included in
the filing of a complaint or as required by law or in testimony (or in any
interview with an officer of the court or governmental agency) in connection
with a legal action in which it is a party or is threatened to be made a party
or pursuant to valid legal process.
5.2 Bankruptcy Court Approval Order. Seller shall promptly, but not
later than five (5) business days from the date of execution of this Agreement,
make a motion to the Bankruptcy Court seeking entry of an order pursuant to
Sections 363(b) and 363(f) of the
<PAGE>
Bankruptcy Code approving this Agreement and the transactions
contemplated hereunder. Such motion shall be made in accordance with such terms,
conditions and procedures as the Bankruptcy Court may deem appropriate and shall
be subject to higher and better offers and other requirements. Seller shall use
its best efforts in good faith to cause the issuance of the Bankruptcy Court
Approval Order. Seller shall also obtain confidentiality, nondisclosure and
indemnity agreements from prospective purchasers or bidders prior to
disseminating any confidential or proprietary information with respect to the
Company to such prospective purchasers or bidders.
5.3 Further Assurances. Seller shall take such additional action and
shall coordinate with Purchaser as may be reasonably necessary or appropriate
for the consummation of the transactions contemplated hereby to carry out and
effectuate the terms and conditions of this Agreement; provided, however, that
nothing in this Section 5.3 shall obligate Seller to take any actions related to
the Bankruptcy Court Approval Order other than as provided in Section 5.2.
5.4 Assumption of Certain Compensation Expenses. Seller shall reimburse
Purchaser, by means of a Closing Adjustment, any salary, expenses, benefits or
other compensation actually paid on or after July 1, 1995 by the Company to
Gerald K. Sandler, Gus Petruzzelli, and Albert D. Panico, pursuant to each such
individual's respective employment agreement.
ARTICLE VI
COVENANTS AND AGREEMENTS BY THE PURCHASING GROUP
From the date hereof until the Closing Date, and after the Closing Date
with respect to Sections 6.1(c), 6.2, 6.3 and 6.4, Purchaser and Lori covenant
and agree, and where so specifically stated, each member of the Purchasing Group
covenants and agrees, that:
6.1 Further Assurances. (a) Each member of the Purchasing Group shall
take such additional action and shall use its best efforts to coordinate with
Seller as may be reasonably necessary or appropriate for the consummation of the
transactions contemplated hereby to carry out and effectuate the terms and
conditions of this Agreement, including, but not limited to, using its best
efforts in good faith to cause the issuance of the Bankruptcy Court Approval
Order and all other necessary approvals, authorizations and waivers;
(b) At all times prior to the Closing Date, Purchaser shall
promptly notify Seller in writing of the occurrence of any event that will or
may result in the failure to satisfy the conditions contained in Article VIII
hereof; and
(c) Purchaser shall provide Seller with reasonable access to
any Records after the date hereof (other than the Resumes) subject to reasonable
confidentiality restrictions.
<PAGE>
6.2 Use of Spectrum Name. Except as required by law, no member of the
Purchasing Group shall use in the conduct of such member's business the name and
mark "Spectrum Global Services, Inc." or "Spectrum", whether alone or in
combination with other words; provided, however, that the Company may use the
name "Spectrum Global Services, Inc." or "Spectrum" solely in order to explain
its historical corporate background but in no case in order to promote the
Business or any other business into which the Company or its affiliates may
enter.
6.3 Pre-Closing Confidentiality. Each member of the Purchasing Group
other than the Managers and Franco and each of the officers, employees and other
representatives of each such member, if applicable, shall treat as confidential,
keep secret and not use in the course of its business any information of a
confidential nature relating in any way to the affairs of the Company or Seller
and, at any time before the Closing Date, will not, without the prior written
consent of Seller, disclose, furnish or make known or accessible to, or use for
the benefit of, anyone any information of a confidential nature relating in any
way to the Business unless such information is otherwise publicly available. If,
for any reason, including without limitation, termination of this Agreement
pursuant to Article X, the transactions contemplated hereby are not consummated,
each member of the Purchasing Group shall and shall cause each of the officers,
employees and other representatives of each such member, if applicable, to
promptly return to Seller, all documents, papers, books, records and other
materials (and all copies thereof) obtained by any of them in connection with
the investigation and evaluation of the Business or the transactions
contemplated hereby, destroy all other documents prepared by any member of the
Purchasing Group which are based on the documents so obtained, and refrain from
making any adverse statements about Seller, its business and its Affiliates that
could reasonably be expected to, and that do, have a material adverse
consequence to Seller or its corporate Affiliates other than any such statements
included in the filing of a complaint or as required by law or in testimony (or
in any interview with an officer of the court or governmental agency) in
connection with a legal action in which such member is a party or is threatened
to be made a party or pursuant to valid legal process.
6.4 Post-Closing Confidentiality. After the Closing Date, each member
of the Purchasing Group covenants and agrees that it shall promptly return to
Seller all documents, papers, books, records and other materials (and all copies
thereof) concerning Seller's business obtained by such member in connection with
the investigation and evaluation of the Business or the transactions
contemplated hereby, destroy all other documents prepared by such member which
are based on the documents so obtained, refrain from using any information in
the documents of a confidential nature relating in any way to Seller, and
refrain from making any adverse statements about Seller, its business and its
Affiliates that could reasonably be expected to, and that do, have a material
adverse consequence to Seller or its corporate Affiliates other than any such
statements included in the filing of a complaint or as required by law or in
testimony (or in any interview with an officer of the court or governmental
agency) in connection with a legal action in which such member is a party or is
threatened to be made a party or pursuant to valid legal process.
<PAGE>
6.5 Assumption of Certain Compensation Expenses. At Closing Purchaser
shall reimburse Seller, by means of a Closing Adjustment due to Seller from
Purchaser, any amounts for salary, expenses, benefits or other compensation
actually paid on or after July 1, 1995 by Seller to each of the Managers and
Franco.
ARTICLE VII
ADDITIONAL COVENANTS AND AGREEMENTS BY THE MANAGERS AND FRANCO
7.1 Further Assurances. From the date hereof until the Closing Date the
Managers and Franco covenant and agree that:
(a) the Managers (i) shall perform their duties as the senior
management team of the Company in the ordinary course of business consistent
with past practice; (ii) shall not intentionally cause by either of their
actions or omissions any representation or warranty of Seller contained herein
to become untrue; (iii) shall not intentionally take any action to cause Seller
to breach any of its covenants or agreements; (iv) shall promptly notify Seller
if either of them becomes aware of any condition or event that will or may
reasonably be expected to result in the failure to satisfy the conditions
contained in Article IX; and (v) shall cooperate fully with due diligence
activities related to Seller's marketing of the Company, although they shall not
be required to interface directly with any prospective bidders;
(b) Franco (i) shall perform the necessary legal duties of the
Company from the date hereof; (ii) shall not intentionally cause by his actions
or omissions any representation or warranty of Seller contained herein to become
untrue; (iii) shall not intentionally take any action to cause Seller to breach
any of its covenants or agreements; (iv) shall promptly notify Seller if he
becomes aware of any condition or event that will or may reasonably be expected
to result in the failure to satisfy the conditions contained in Article IX; and
(v) shall cooperate fully with due diligence activities related to Seller's
marketing of the Company, although he shall not be required to interface
directly with any prospective bidders; and
(c) All material business decisions made by the Managers or
Franco and all omissions of the Managers or Franco respecting material business
decisions from the date hereof until the Closing shall be subject to the prior
written approval of the Chief Executive Officer of Seller. The consequence of
any failure to obtain such approval with respect to a material decision
(including with respect to an inadvertent omission) shall be that (i) Seller
shall be released from all responsibility and liability with respect to any
breach of the representations, warranties, agreements or covenants made by
Seller in this Agreement (or any failure of any Schedule to be true, complete
and accurate) resulting from such material decision or omission; (ii) the
requirements of Section IX(c) shall be waived with respect to each such
representation and warranty and the requirements of Section IX(b) shall be
waived with respect to each such agreement and covenant; and (iii) Seller shall
not be deemed to be in
<PAGE>
material breach of any such representation, warranty, agreement or
covenant for purposes of Section 10.2(b) hereof. The Chief Executive Officer of
Seller shall respond to any request for such approval promptly after due
deliberation and the failure to so respond shall be deemed to constitute an
approval.
ARTICLE VIII
SELLER'S CONDITIONS TO CLOSING
The obligation of Seller to consummate the transactions contemplated by
this Agreement is, unless waived by Seller, subject to the fulfillment, on or
before the Closing, of each of the following conditions:
(a) No injunction or restraining order shall be in effect
which prohibits, restricts or enjoins, and no suit, action or proceeding shall
be pending which seeks to prohibit, restrict, enjoin, nullify, seek material
damages with respect to or otherwise materially adversely affect the
consummation of the transactions contemplated hereby;
(b) All covenants of each member of the Purchasing Group under
this Agreement to be performed prior to the Closing shall have been performed in
all material respects, except to the extent attributable to actions expressly
permitted or consented to by Seller in writing;
(c) Seller shall have received a certificate, executed by each
of the President and Secretary of Purchaser, Lori and ARTRA, and each of the
Managers, Franco, Harvey and Werner (effective as of the Closing), and in form
and content reasonably acceptable to Seller, certifying the truth and accuracy
of the representations and warranties of each contained herein;
(d) Seller shall have received from Purchaser, Lori and ARTRA
a certificate from the Department of State of the state of incorporation of each
to the effect that each of Purchaser, Lori and ARTRA are in good standing in
such state;
(e) The Bankruptcy Court Approval Order shall have been
entered; all material statutory requirements for the valid consummation by
Purchaser of the transactions herein described shall have been fully and timely
satisfied; all material authorizations, approvals or waivers of any federal or
state regulatory body shall have been obtained in order to permit consummation
by Purchaser of the transactions herein described, and/or to permit Purchaser to
assume the Business at the Closing; and no action or proceeding to suspend,
revoke, cancel, terminate, modify or alter any of such authorizations, approvals
or waivers shall be pending or threatened;
(f) Seller shall have received all certificates, instruments,
agreements and other documents to be delivered by each member of the Purchasing
Group at or before Closing as
<PAGE>
provided in this Agreement and a certificate signed
individually or by an officer of each member of the Purchasing Group, as the
case may be, confirming the matters set forth in paragraphs (a), (b) and (e)
(other than with respect to the Bankruptcy Court Approval Order) above;
(g) [Intentionally Omitted]
(h) The Purchasing Group shall tender to Seller the Closing
Payment, after taking into account any mutually agreed upon Closing Adjustments,
in immediately available funds by federal funds check or certified check or bank
wire to an account designated by Seller; and
(i) Seller shall have received all the documentation required
to be delivered to it pursuant to the provisions of this Agreement, in form and
content reasonably satisfactory to Seller and its Counsel.
ARTICLE IX
PURCHASER'S CONDITIONS TO CLOSING
The obligation of the Purchaser to consummate the transactions, and the
obligations of the Guarantors to fulfill their obligations under the Guarantees
contemplated by this Agreement is, unless waived by Purchaser, subject to the
fulfillment, on or before the Closing, of each of the following conditions:
(a) No injunction or restraining order shall be in effect
which prohibits, restricts or enjoins, and no suit, action or proceeding shall
be pending which seeks to prohibit, restrict, enjoin, nullify, seek material
damages with respect to or otherwise materially adversely affect the
consummation of the transactions contemplated hereby other than those set forth
on Schedule 3.7;
(b) All covenants of Seller under this Agreement to be
performed prior to the Closing shall have been performed in all material
respects, except to the extent attributable to actions expressly permitted or
consented to by Purchaser in writing;
(c) Purchaser shall have received a certificate, executed by
the President and Secretary of Seller (effective as of the Closing), and in form
and content reasonably acceptable to Purchaser, certifying the truth and
accuracy of the representations and warranties of Seller contained herein;
(d) Purchaser shall have received from each of Seller and the
Company a certificate from the Department of State of the State of Delaware to
the effect that each of Seller and the Company is in good standing in such
state;
<PAGE>
(e) The Bankruptcy Court Approval Order shall have been
entered; all material statutory requirements for the valid consummation by
Seller of the transactions herein described shall have been fully and timely
satisfied; all material authorizations, approvals or waivers of any federal or
state regulatory body shall have been obtained in order to permit consummation
by Seller of the transactions herein described, and/or to permit Purchaser to
assume the Business at the Closing; and no action or proceeding to suspend,
revoke, cancel, terminate, modify or alter any of such authorizations, approvals
or waivers shall be pending;
(f) Purchaser shall have received all certificates,
instruments, agreements, Property in Seller's possession (as described in
Section 2.5(b)(iii)) and other documents to be delivered by Seller at or before
Closing as provided in this Agreement, including a certificate signed by an
officer of Seller confirming the matters set forth in paragraphs (a), (b) and
(e) (other than with respect to the Bankruptcy Court Approval Order) above;
(g) Purchaser has received such documentation as may be
necessary to establish that Purchaser is not required to withhold any portion of
the Purchase Price pursuant to Section 1445 of the United States Internal
Revenue Code of 1986 (substantially in the form of Exhibit H hereto);
(h) Purchaser shall have received releases from all guarantees
by the Company (all of which are set forth on Schedule IX(h) hereto) including
but not limited to those related to the employment agreement of Donald J.
Amoruso with Seller (substantially in the form of Exhibit I hereto) and the
engagement agreement of Gordian Group, L.P. with Seller (substantially in the
form of Exhibit J hereto) and a release from the employment agreement with
Gerald K. Sandler (substantially in the form of Exhibit K hereto);
(i) Seller shall tender to Purchaser certificates representing
the Stock duly endorsed and in form for transfer to Purchaser or accompanied by
stock powers endorsed in blank; and
(j) Purchaser shall have received all the documentation
required to be delivered to it pursuant the provisions of the Agreement, in form
and content reasonably satisfactory to Purchaser and its counsel.
ARTICLE X
TERMINATION
10.1 Termination. Anything herein or elsewhere to the contrary
notwithstanding, this Agreement and any agreement ancillary hereto may be
terminated and the transactions contemplated hereby abandoned at any time prior
to or at the Closing by:
<PAGE>
(a) mutual consent of Seller and Purchaser upon the express
approval of the respective Boards of Directors of Seller and Purchaser and the
express approval of Managers and Franco;
(b) Seller, if any of the conditions set forth in Article VIII
shall not have been met and shall not have been waived by Seller as of the
Closing Date and at such time Seller is not in material breach or default of its
covenants, representations or other obligations contained in this Agreement, or
if, prior to the Closing, any member of the Purchasing Group is in material
breach or default of its covenants, representations or other obligations
contained in this Agreement;
(c) Purchaser, if any of the conditions set forth in Article
IX shall not have been met and shall not have been waived by Purchaser as of the
Closing Date and at such time Purchaser is not in material breach or default of
any of its covenants, representations or other obligations contained in this
Agreement, or if, prior to the Closing, Seller is in material breach or default
of its covenants, representations or other obligations contained in this
Agreement; or
(d) automatically, if the Bankruptcy Court approves a
competing bid for the Stock or a bid for all or substantially all of the assets
of the Company.
Any party desiring to terminate this Agreement pursuant to this Article
X shall give notice of such termination to the other party hereto in accordance
with Section 12.7.
10.2 Effect of Termination.
(a) If this Agreement is terminated in accordance with Section
10.1 or 10.3, then all rights and obligations of the parties hereunder shall
terminate and be of no further effect; provided, however, that no such
termination shall relieve any party of liability for any breach of its
obligations under this Agreement or any other obligation to indemnify arising
under this Agreement prior to such termination; and, provided further, that
Sections 6.3, 10.2(b) and 11.8 shall apply.
(b) (A) If prior to the time of termination pursuant to
Section 10.1, this Agreement is terminated pursuant to Section 10.3(a), one-half
of the Deposit (including earnings on such portion) shall be immediately
refunded to Purchaser and the remainder of the Deposit (including earnings on
such portion) shall be released from escrow and transferred to Seller pursuant
to the terms of the Escrow Agreement; (B) if prior to the time of other
termination pursuant to Section 10.1 or 10.3(a), (i) this Agreement is
terminated pursuant to Section 10.3(b); or (ii) this Agreement is terminated
because Seller is in material breach or default of any of its covenants,
representations or other obligations under this Agreement or (iii) this
Agreement is terminated because at the Closing, Purchaser has not received, or
waived the receipt of, the items listed in Article IX(c), (d), (g) and (h) and
the Closing has not occurred or (iv) this Agreement is terminated pursuant to
Section 10.1(d), the Deposit (including earnings on such portion) shall be
immediately refunded to Purchaser; and (C) in all
<PAGE>
other cases of termination, the Deposit (including earnings on
such portion) shall be released from escrow and transferred to Seller pursuant
to the terms of the Escrow Agreement.
10.3 Bankruptcy Court Approval Order.
(a) From October 28, 1995, through and until November 27,
1995, and only during such period, if the Bankruptcy Court Approval Order has
not been entered at the time, Purchaser shall have the right, at its option, to
terminate this Agreement and to abandon the transactions contemplated hereby by
providing written notice to Seller in accordance with Section 12.7.
(b) On or after January 1, 1996, if the Bankruptcy Court
Approval Order has not been entered at the time, Purchaser and Seller shall each
have the right, at their options, to terminate this Agreement and to abandon the
transactions contemplated hereby.
(c) For purposes of this Agreement, if at any time there is in
effect a stay of the Bankruptcy Court Approval Order issued by a court of
competent jurisdiction, the Bankruptcy Court Approval Order shall be deemed as
not having been entered at such time. Purchaser and Seller agree to use best
efforts to cause this transaction to be closed prior to the issuance of any such
stay and to extinguish any such stay which is issued.
ARTICLE XI
RELEASES, INDEMNIFICATION AND SURVIVAL OF REPRESENTATIONS
11.1 Releases. At the Closing, Seller, the Managers and Franco agree
to execute the Releases.
11.2 Indemnification by Seller. (a) Seller agrees to indemnify and hold
harmless Purchaser from and against all demands, claims, actions or causes of
action, assessments, losses, damages, expenses and liabilities (collectively,
the "Damages") asserted against or incurred by Purchaser as a result of any
breach of any representation, covenant or agreement by Seller contained herein.
(b) Seller agrees to indemnify and hold harmless Purchaser from and
against any Damages arising from the nonpayment of any federal or state income
taxes, or penalties thereon, that are due and payable with respect to any
taxable period (or portion thereof) of the Company ending on or before the
Closing Date.
11.3 Indemnification by Purchaser and Lori. Purchaser and Lori jointly
and severally agree to:
(a) indemnify and hold harmless Seller and, prior to the
Closing, the Company, from and against all Damages asserted against or incurred
by Seller or the Company, as the <PAGE>
case may be, as a result of any breach of any representation,
covenant or agreement by any member of the Purchasing Group, including a member
other than Purchaser and Lori, contained herein; and
(b) indemnify and hold harmless Seller and its Affiliates from
and against all Damages asserted against or incurred by Seller or its Affiliates
arising from the Business or the conduct of any employee or officer of the
Company (other than the actual conduct of Donald J. Amoruso), except for such
actions of Paterek in his former capacity as a director of Seller; provided,
however, that such indemnification obligations shall not apply with respect to
Damages arising under Section 11.2, unless such Damages arising under Section
11.2 are the result of any actions or omissions by any of Paterek, Ferrentino or
Franco.
11.4 Indemnification by the Managers and Franco.
The Managers and Franco will jointly and severally indemnify
and hold harmless Seller and its Affiliates from and against all Damages
asserted against or incurred by Seller or its Affiliates which arise as a result
of the willful misconduct of any of them; provided, however, that this
obligation to indemnify and hold harmless Seller and its Affiliates shall not
exceed the sum of Fifty Thousand Dollars ($ 50,000), which amount shall be
deposited in escrow, pursuant to the terms of an escrow agreement of even date
herewith (the "Manager Escrow Agreement") among Seller, the Managers, Franco and
the Manager Escrow Agent (as defined in the Manager Escrow Agreement)
substantially in the form of Exhibit P hereto, on the Closing Date and held in
escrow until the first anniversary of the Closing Date. Notwithstanding anything
herein to the contrary, the obligation of the Managers and Franco to indemnify
and hold harmless Seller and its Affiliates contained in this Section 11.4(b)
shall be continuing and survive, in accordance with Section 11.8(d), the
execution and delivery of this Agreement and the Closing Date.
11.5 Indemnification by Guarantors. The Guarantors other than Lori each
severally agree to indemnify and hold harmless Seller and, prior to the Closing,
the Company, from and against all Damages asserted against or incurred by Seller
or the Company, as the case may be, as a result of any breach of any
representation, covenant or agreement by any such Guarantor contained herein.
11.6 [Intentionally Omitted]
11.7 Indemnification Procedures.
11.7.1 Notice of Asserted Liability. Each party seeking
indemnification shall promptly give notice to the party from whom
indemnification is sought (each such notice, a "Claims Notice") of any demand,
claim or circumstance which gives rise, or with the lapse of time would or might
give rise to a claim or the commencement (or threatened commencement) of any
action, proceeding or investigation that may result in any losses (an "Asserted
Liability"), without regard to limitations on indemnification set forth above.
The Claims
<PAGE>
Notice shall describe the Asserted Liability in reasonable detail,
and shall indicate the amount (estimated, if necessary, and to the extent
feasible) of the losses that have been suffered by an Indemnified Party.
11.7.2 Defense of Asserted Liability. If the facts giving rise to
the claim for indemnification shall involve any actual or threatened claim or
demand by any third party against or by any Indemnified Party or by an
Indemnified Party against any third party, the relevant Indemnified Party shall
defend or prosecute such claim through counsel of such Indemnified Party's
choosing, which counsel shall be reasonably satisfactory to the Indemnifying
Party, and the reasonable expenses of which shall be borne by the Indemnifying
Party (subject to the limitations set forth above); provided, however, that the
Indemnifying Party shall not be responsible for fees and expenses of more than
one counsel in each jurisdiction and provided further that in the case of a
claim for indemnification relating to Section 3.8 (dealing with tax matters),
Seller shall defend or prosecute such claim through counsel of its choosing. No
Indemnifying Party shall be subject to any liability for any settlement made
without such Indemnifying Party's consent; provided, however, that such consent
shall not be unreasonably withheld; and provided, further, that no such consent
shall be required of an Indemnifying Party with respect to any settlement if
such settlement would give rise to no liability on the part of such Indemnifying
Party.
11.8 Termination of Indemnification Obligations.
(a) The obligation of Seller to indemnify under Section 11.2
shall survive the Closing Date and terminate on the second anniversary of the
Closing Date, except (i) in each case as to matters as to which any Indemnified
Party has given a Claims Notice under Section 11.7.1 on or prior to such date,
in which case the right to indemnification with respect thereto shall survive
the expiration of any such period until such claim is finally resolved and any
obligations with respect thereto are fully satisfied; and (ii) with respect to
any Claims Notice arising solely from the matters contained in Section 3.8, in
which case the right to indemnification with respect thereto shall survive the
Closing Date and terminate on the third anniversary following the filing of any
income tax return referred to in Section 3.8 or upon such other expiration of
the limitation period relevant to such income tax return.
(b) The obligation of each of Purchaser and Lori to indemnify
under Section 11.3(a) and the obligation of each of the Guarantors to indemnify
under Section 11.5 shall each survive the Closing Date and terminate on the
second anniversary of the Closing Date, except in each case as to matters as to
which any Indemnified Party has given a Claims Notice under Section 11.7.1 on or
prior to such date, in which case the right to indemnification with respect
thereto shall survive the expiration of any such period until such claim is
finally resolved and any obligations with respect thereto are fully satisfied.
<PAGE>
(c) The obligation of each of Purchaser and Lori to indemnify
under Section 11.3(b) shall survive the Closing Date and the expiration of any
such period until any such claim is finally resolved and any obligations with
respect thereto are fully satisfied.
(d) The obligation of each of the Managers and Franco to
indemnify under Section 11.4 shall survive the Closing Date and terminate
eighteen (18) months after the Closing Date, except in each case as to matters
as to which any Indemnified Party has given a Claims Notice under Section 11.7.1
on or prior to such date, in which case the right to indemnification with
respect thereto shall survive the expiration of any such period until such claim
is finally resolved and any obligations with respect thereto are fully
satisfied.
11.9 Certain Representations and Covenants
Except as provided in Section 11.4, neither the Managers nor Franco
shall have any personal liability for any breach of any representation,
warranty, agreement or covenant made by them herein (a "Manager or Franco
Breach"). However, in the event of any such Manager or Franco Breach (i) Seller
shall be released from all responsibility and liability with respect to the
breach of any representations, warranties, agreements or covenants made by
Seller in this Agreement (or any failure of any Schedule to be true, complete
and accurate) as a result of any such Manager or Franco Breach or as a result of
the event, circumstance or condition causing such Manager or Franco breach; (ii)
the requirements of Section IX(c) shall be waived with respect to each such
representation or warranty and the requirements of Section IX (b) shall be
waived with respect to each such agreement or covenant; and (iii) Seller shall
not be deemed to be in material breach of any such representation, warranty,
agreement or covenant for purposes of Section 10.2(b) hereof as a result of any
such Manager or Franco Breach or as a result of the event, circumstance or
condition causing such Manager or Franco Breach.
ARTICLE XII
MISCELLANEOUS
12.1 Expenses . Subject to the rights of indemnity contained in Article
XI, each of the parties to this Agreement shall pay all of its own expenses
relating to the transaction contemplated by this Agreement, including, without
limitation, the fees and expenses of its respective counsel, accountants,
financial advisers and any broker's, finder's or similar agent's fee.
12.2 Role of the Managers and Franco in Negotiations. Seller agrees
that: (i) the Managers and Franco are not and shall not be deemed to be
representatives of Spectrum for the purpose of negotiating this Agreement and
other actions incident hereto; (ii) the Managers and Franco may act on behalf of
Purchaser and Lori for such purpose; and (iii) the actions referenced in clauses
(i) and (ii) immediately above and actions consistent with such purpose
<PAGE>
do not constitute a breach of fiduciary or other duties pursuant to the
terms of their respective employment agreements with Spectrum, under the common
law, or otherwise.
ss.12.3 Non-Competition Agreement. Seller shall enter into and deliver
to Purchaser at the Closing an agreement substantially in the form of Exhibit Q
hereto not to compete in the Business for a period of not less than three and
one-half (3.5) years; provided, however, that Seller, at its option, may provide
services on a contract labor basis to the extent such services are only directly
related to the project, engagement, system or solution for which Seller's
Systems Integration business was retained by the client; and provided, further,
that the Company and each member of the Purchasing Group shall enter into and
deliver to Seller at the Closing the Non-Competition Agreement (substantially in
the form of Exhibit Q hereto) not to compete in Seller's wireless data
communication software product business for a period of not less than three and
one-half (3.5) years unless it first offers the opportunity to Seller of
participating in a joint project or venture with respect to such business.
12.4 Governing Law. The interpretation and construction of this
Agreement, and all matters relating hereto, shall be governed by the domestic
laws of the State of New York and the Bankruptcy Code to the extent applicable.
12.5 Jurisdiction. Any judicial proceeding brought against any of the
parties to this Agreement on any dispute arising out of this Agreement or any
matter related hereto shall be brought in the courts of the State of New York or
in the United States District Court for the Eastern District of New York (or the
Bankruptcy Court), and, by execution and delivery of this Agreement, each of the
parties to this Agreement accepts for itself or himself the process in any
action or proceeding by the mailing of copies of such process to such party at
its or his address as set forth in Section 12.7, and irrevocably agrees to be
bound by any judgment rendered thereby in connection with this Agreement. Each
party hereto irrevocably waives to the fullest extent permitted by law any
objection that it or he may now or hereafter have to the laying of the venue of
any judicial proceeding brought in such courts and any claim that any such
judicial proceeding has been brought in an inconvenient forum. The foregoing
consent to jurisdiction shall not constitute general consent to service of
process in the State of New York for any purpose except as provided above and
shall not be deemed to confer rights on any person other than the respective
parties to this Agreement. EACH PARTY HERETO WAIVES TRIAL BY JURY, IF ANY, IN
ANY JUDICIAL PROCEEDING UNDER THIS AGREEMENT OTHER THAN A RIGHT FOR TRIAL BY
JURY IN ANY JUDICIAL PROCEEDING IN THE BANKRUPTCY COURT DURING THE PENDENCY OF
SELLER'S CHAPTER 11 CASE.
12.6 Captions. The Article and Section captions used herein are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
12.7 Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder by any party to any other
party shall be in writing and
<PAGE>
shall be deemed to have been given (a) upon personal delivery, if
delivered by hand, (b) three (3) days after the date of sending such notice by
certified mail, return receipt requested, or (c) the next business day if sent
by facsimile transmission or by an over night courier service, and in each case
of mailing, postage prepaid and at the respective addresses or numbers set forth
below:
If to the Purchasing Group, addressed to:
ARTRA Group Incorporated
Mr. Peter R. Harvey
Mr. Marc L. Werner
The Lori Corporation
500 Central Avenue
Post Office Box 8902
Northfield, IL 60093-8902
Attention: Mr. Peter R. Harvey
Fax: (708) 441-6959
Comforce Corp.
2001 Marcus Ave. - Suite N216
Lake Success, NY 11042
Attn: Mr. Christopher P. Franco
Mr. James L. Paterek
86 South Drive
Plandome, NY 11030
FAX: 516-352-3362
Mr. Michael Ferrentino
956 Cedar Swamp Road
Glen Head, NY 11545
Mr. Christopher P. Franco
37 Lockwood Lane
Riverside, CT 06875
with a copy to:
Marc D. Freedman, Esq.
Attorney At Law
70 Hilltop Road, Suite 2000
<PAGE>
Ramsey, NJ 07446
FAX: 201-825-4505
If to Seller, addressed to:
Spectrum Information Technologies, Inc.
2700 Westchester Avenue
Purchase, NY 10577
Attention: Mr. Donald J. Amoruso
FAX: 914-251-1811
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza, Suite 4300
New York, NY 10006
Attention: Edwin B. Mishkin, Esq.
FAX: 212-225-3999
or in any case to such other address or number as any party may fix by notice.
12.8 Parties in Interest. This Agreement may not be transferred,
assigned, pledged or hypothecated by any party hereto, other than by operation
of law or with the prior written consent of the other parties hereto, and any
purported transfer, assignment, pledge or hypothecation in violation of this
Section shall be void. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective administrators,
successors and permitted assigns.
12.9 Severability. In the event any provision of this Agreement is
found to be void and unenforceable by a court of competent jurisdiction or
arbitration panel, the remaining provisions of this Agreement shall nevertheless
be binding upon the parties with the same effect as though the void or
unenforceable part had been severed and deleted.
12.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
taken together shall constitute one instrument.
12.11 Entire Agreement. This Agreement, including the other documents
referred to herein, contains the entire understanding of the parties hereto with
respect to purchase of the Stock by Purchaser and supersedes all prior
agreements, correspondence, conversation, negotiations and understandings
between the parties with respect to such subject matter.
12.12 Amendments. This Agreement may not be changed orally, but only by
an agreement in writing signed by all of the parties hereto, and no waiver of
compliance with any
<PAGE>
provision or condition hereof and no consent provided for herein shall
be effective unless evidenced by an instrument in writing duly executed by the
party against whom such waiver or consent is sought.
12.13 Third Party Beneficiaries. Subject to the provisions in Sections
6.3 and 6.4 relating to adverse statements about Seller's Affiliates, in Section
10.2(b) relating to the effect of termination and in Article XI relating to the
indemnification and release of Seller's Affiliates, each party hereto intends
that this Agreement shall not benefit or create any right or cause of action in
or on behalf of any person other than the parties hereto and their respective
successors and assigns as permitted under Section 12.8.
12.14 Gender. As used in this Agreement, any gender includes a
reference to all other genders and the singular includes a reference to the
plural and vice versa.
12.15 Protection of the Value of the Company. The Seller intends not to
distribute any detailed proprietary customer information unless to a serious
bidder; provided, however, that the determination of whether a bidder is a
serious bidder shall be within the sole discretion of Seller.
12.16 Cooperation - Tax Matters. The Seller, on the one hand, and the
Company and the Purchasing Group on the other hand, will cooperate fully with
each other, on a reasonable basis, in connection with the preparation, signing
and filing of any tax returns and in any administrative, judicial or other
proceeding involving taxes, including but not limited to the furnishing or
making available of records, books of account or other materials necessary or
helpful for the defense against assertions of any taxing authority as to any tax
returns for such year or period. Seller shall be responsible for the preparation
of, and shall deliver to the Company for signing and filing to the extent
necessary, any income tax return relating to the Company for any period ending
on or prior to the Closing Date.
ARTICLE XIII
BANKRUPTCY COURT APPROVAL AND PROCEDURES
13.1 Sale Order. Subject to the Seller's fiduciary duties to their
creditors, including their duties under Section 363, the Seller agrees to
support and shall use their best efforts to obtain in timely fashion approval of
this transaction by the Bankruptcy Court under Sections 105 and 363 of the
Bankruptcy Code. The form of notice to creditors and parties in interest of this
transaction shall incorporate substantially the material provisions of Sections
13.4 and 13.5 below.
13.2 [Intentionally Omitted]
13.3 Notice. Notice to creditors and parties in interest shall include,
inter alia, that any party in interest objecting to this transaction shall file
its objection in writing on or before
<PAGE>
5:00 p.m., three business days prior to the scheduled hearing on this
Agreement with the Clerk of the Bankruptcy Court [INSERT ADDRESS], with a copy
of its objection delivered to (A) Debtor's counsel, [INSERT NAMES AND ADDRESSES]
and (B) Purchaser's counsel, [INSERT NAMES AND ADDRESSES]; and that any party in
interest that makes a Competing Bid (as defined in this Agreement) shall file
its Competing Bid in writing on or before 5:00 p.m. three business days before
the scheduled hearing on this Agreement, with the Clerk of the Bankruptcy Court
[INSERT ADDRESS], with a copy of its Competing Bid delivered to (A) Debtor's
counsel, [INSERT NAMES AND ADDRESSES] and (B) Purchaser's counsel, [INSERT NAMES
AND ADDRESSES]. During such three business day period, the Purchaser may respond
to any such Competing Bids.
13.4 Competing Bid. In order to qualify for consideration by the
Bankruptcy Court as a higher and better offer relating to this transaction (a
"Competing Bid") from a party in interest (a "Competing Bidder"), a Competing
Bid shall be reduced to writing, and: (i) provide for aggregate consideration
having a value greater than the sum of (A) the Purchase Price and (B) $60,000;
(ii) not be contingent upon financing necessary to its consummation or the
outcome of any unperformed due diligence; and include a certified check payable
to Sellers equal to ten percent of the Competing Bid (the "Competing Bid
Deposit"); (iv) provide for a closing not later than three weeks after the
Bankruptcy Court approves the Competing Bid; (v) provide that the Purchase Price
shall be paid in cash and/or marketable securities and (vi) provide for a
purchase of all the Stock of the Company provided, however, that should a
Competing Bidder or the Purchaser increase its respective bid during the course
of the hearing on this Agreement, the determination of who has made the highest
and best offer shall not be affected by the necessity of immediately increasing
the bidder's deposit.
13.5 Competing Bidders.(a)Any third-party that in good faith requests
of Sellers in writing an opportunity to conduct due diligence to prepare and
submit a Competing Bid (i) shall be given complete access to public information;
and (ii) with respect to nonpublic information of a proprietary or confidential
nature, shall be given access for the sole purpose of submitting a Competing
Bid, provided that the Competing Bidder first executes a confidentiality
agreement, substantially in the form of Exhibit R hereto (the "Confidentiality
Agreement"), which contains a provision in which the Competing Bidder is advised
and acknowledges that the Managers and Franco are members of the Purchasing
Group and submits to the jurisdiction of the Bankruptcy Court for purposes of
enforcement of such Confidentiality Agreement.
(b) If a closing under an agreement with a successful
Competing Bidder is not timely concluded, the Seller shall be authorized without
further Bankruptcy Court Order promptly to conclude the transaction with the
next highest willing bidder in accordance with the terms of the next highest
Competing Bid (provided the next highest Competing Bid otherwise complies with
this Agreement).
<PAGE>
(c) Any and all Competing Bid Deposits submitted by
unsuccessful Competing Bidders shall be returned to their respective Competing
Bidder, unless the Competing Bidder shall have been deemed to have been in
default of its Competing Bid in which case the Competing Bid Deposit shall be
kept by the Seller.
<PAGE>
IN WITNESS WHEREOF, Seller, Lori, Purchaser and ARTRA have
caused their corporate names to be hereunto subscribed by their officers
thereunto duly authorized, and Harvey, Werner, Paterek, Ferrentino and Franco
have signed as individuals thereunto, all as of the day and year first above
written.
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By:_____________________________________
Name:
Title:
THE LORI CORPORATION
By:_____________________________________
Name:
Title:
COMFORCE CORP.
By:_____________________________________
Name:
Title:
ARTRA GROUP INCORPORATED
By:_____________________________________
Name:
Title:
PETER R. HARVEY
----------------------------------------
<PAGE>
MARC L. WERNER
----------------------------------------
JAMES L. PATEREK
----------------------------------------
MICHAEL FERRENTINO
----------------------------------------
CHRISTOPHER P. FRANCO
----------------------------------------
<PAGE>
STOCK PURCHASE AGREEMENT SCHEDULES
Schedule 1.1 -- Closing Adjustment
Between Spectrum Information Technologies, Inc. ("Spectrum" or "Seller") and
Spectrum Global Services, Inc. ("Global" or the "Company")
(i) Cash dividends to Spectrum None
from Global
<TABLE>
<CAPTION>
July 1995 August 1995
Payroll Benefits Payroll Benefits Total
------- -------- ------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
(ii) Salary, expenses, benefits or other $ $ $ $ $
compensation paid by Spectrum
James L. Paterek* - 285 - 4,170 4,455
Michael Ferrentino* - 91 - 324 415
Christopher P. Franco 12,680 187 12,680 697 26,245
------- -------- ------- -------- --------
12,680 563 12,680 5,191 31,115
(iii) Salary, expenses, benefits or other
compensation paid by Global
Gus Petruzzelli - - - - 0
Gerald K. Sandler*** 3,586 - 4,482 - 8,068
Albert D. Panico - - - - 0
------- -------- ------- -------- --------
3,586 0 4,482 0 8,068
Net salary, expenses, benefits or other
compensation due to Spectrum from Global $9,095 $563 $8,198 $5,191 $23,047
(iv) Intercompany payables on or after
January 26, 1995 due to Spectrum (from
next page)
Total Closing Adjustment $150,841
due to Spectrum as of the date hereof** ========
<FN>
* Paterek and Ferrentino went on Global's payroll system starting
April 1, 1995.
** The Closing Adjustment shall be updated to reflect the amount of such
Closing Adjustment as of the Closing.
*** Pending addition of documented travel and entertainment expenses.
</FN>
</TABLE>
<PAGE>
Spectrum Post-petition Intercompany Reconciliation w/Global
As of August 31, 1995**
Schedule 1.1 -- Closing Adjustment
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Post-petition
Furn/ Monthly
Payroll Benefits Rent Frishkoff Equip. Misc. Cash Total
------- -------- -------- --------- ------- ----- -------- --------
Intercompany activity 1/26-31/95 $ 4,972 $ 218 $ 535 $ $ $ $ $ 5,807
82
Intercompany activity 2/95 23,104 4,903 3,315 (25,033) 34 6,323
Intercompany activity 3/95 36,227 1,842 3,315 377 41,760
Intercompany activity 4/95 2,717 3,315 283 (12,130) (5,816)
Intercompany activity 5/95 14,785 4,822 1,647 21,254
Intercompany activity 6/95 10,849 12,457 30,825 186 54,316
Intercompany activity 7/95 9,207 3,824 (14) 13,016
Intercompany activity 8/95 8,877 5,747 4 14,628
------- -------- -------- --------- ------- ----- -------- --------
108,021 36,529 10,480 (25,033) 30,825 2,598 (12,130) 151,288
Potential adjustments:
Payroll and benefits for Gus Petruzzelli for July and August (18,624)
Payroll and benefits for Albert D. Panico for July and August 0
Payroll and benefits for James L. Paterek for July and August (4,455)
Payroll and benefits for Michael Ferrentino for July and August (415)
--------
Intercompany payables on or after January 26, 1995 due to Spectrum 127,794
========
<FN>
** The Closing Adjustment shall be updated to reflect the amount of such Closing Adjustment as of the Closing.
</FN>
</TABLE>
<PAGE>
Schedule 1.1 -- Real Property Leases
Real Property Lease between Equitable Life Assurance Society of the United
States and Spectrum Global Services, Inc. d/b/a Yield TechniGlobal, Inc. for
space known as Suite N216 in the building known as 2001 Marcus Avenue, Lake
Success, New York 11042.
<PAGE>
SCHEDULE 2.5(b)(iii)
ITEMS TO BE DELIVERED AT CLOSING TO GLOBAL FROM SPECTRUM
Global - Corporate Documents
1. Certificate of Incorporation as filed September 20, 1993;
2. Various Applications for and/or Certificates of Authority:
(a) Application for Authority and Notice of Approval - Arizona
(b) Affidavit of Publication of Application for Authority - Arizona
(c) Certificate of Authority and Application - Illinois
(d) Certificate of Qualification - California
(e) Statement and Designation by Foreign Corporation - California
(f) Certificate of Authority and Application - Missouri
(g) Certificate of Authority and Application - New Jersey
(h) Application for Certificate of Authority - Pennsylvania
(i) Certificate of Authority - Virginia
(j) Certificate of Authority and Application - Wisconsin
(k) Notification Regarding Authorization - Florida
(l) Certificate of Authority - Connecticut
(m) Certificate of Authority and Application - Indiana
(n) Certificate of Authority and Application - New Mexico
(o) Certificate of Authority and Application - Texas
(p) Certificate of Authority and Application - Michigan
3. Written Consent of Sole Incorporator in Lieu of Organization Meeting;
4. Written Consent of Sole Director in Lieu of First Meeting;
[Not Executed]
5. Subscription Letter; [Not Executed]
6. By-laws;
7. Stock Certificate #1 as issued to Spectrum [Not Executed];
8. Stock Certificate Book and Ledger;
9. Corporate Minute Book; and
<PAGE>
Sumtec Corporation - Corporate Documents
1. Certificate of Incorporation as filed in Delaware on December 20, 1993;
2. Written Consent of Incorporator;
3. Written Consent in Lieu of First Meeting of Sole Director [Not Executed];
4. Subscription Letter; [Not Executed]
5. Stock Certificate as issued to Global [Not Executed];
6. By-laws;
7. Certificates of Authority re:
(a) Arizona
(b) Illinois;
(c) Massachusetts
(d) Michigan;
(e) New York
(f) North Carolina
(g) Ohio
(h) Pennsylvania
8. Corporate Minute Book; and
9. Corporate Seal.
Other Property
Any key identified by Spectrum to Global's Offices
ITEMS THE OWNERSHIP OF WHICH SHALL BE TRANSFERRED AT CLOSING TO GLOBAL FROM
SPECTRUM
ASSETS UTILIZED BY THE BUSINESS AND NOT ON GLOBAL'S GENERAL LEDGER
(1) Desk in storage (pending identification)
(1) Gray guest table in Gus Petruzzelli's office
(1) Gray guest table in Michael Ferrentino's office
(1) End table in Michael Ferrentino's office
(1) Fellows shredder machine next to water cooler
(1) Xerox typewriter in Michelle's cubicle
(1) Small circular brown table in James L. Paterek's office
(1) IBM PS Value point 466 DXZ computer hard drive (monitor accounted for)
in Roy Pisarki's cubicle
(1) Compaq computer monitor in kitchen area cubicle
(3) Cubicle overhead long open shelves in Matt & Rose's cubicles
(7) Blue secretarial chairs (per Roy Pisarki - Hayworth chairs)
(1) Toshiba laptop (model #T4400C) in James L. Paterek's office
(1) AMDEX computer monitor in James L. Paterek's office
(1) Fax machine (XEROX model #7024) next to water cooler/copier
(1) Compaq Prolinea 4/33 computer hard drives
(1) Multisync 2V computer monitors
<PAGE>
Software
-Novell 4.0*
-Windows NT*
Hardware from Computer Closet
(1) Server NEC Business Mate 486/25E serial #1312339UB**
(1) Compaq monitor serial #25114544N971
(1) Keyboard
(2) SMC Elite 3512TP 10 Base-T Concentrator
(1) Tripplite battery B/U system BC 500
(1) Safe Power 650 surge protector serial #11BD01657
(1) American Power Enversion Smart UPS 900
(1) Compaq Prolinea 4/33 computer hard drives
(1) Multisync 2V computer monitors
ITEMS NOT UTILIZED BY THE BUSINESS AND NOT ON GLOBAL'S GENERAL LEDGER TO BE
TRANSFERRED TO SELLER PURSUANT TO SECTION 5.1(b)
(2) Compaq Prolinea 4/33 computer hard drives
(2) Multisync 2V computer monitors
Executive furniture in Albert D. Panico's office-(1)desk,(1)credenza &(1)armoire
Schedule 3.2 -- Property Ownership
Notifications Regarding General Intangibles
None.
Encumbrances
Gordian Group, L.P. Engagement Letter guarantee
Donald J. Amoruso Employment Agreement with Spectrum guarantee
L.H. Frishkoff & Company guarantee of fees
<PAGE>
Schedule 3.3 -- Authorized and Outstanding Capitalization
One Hundred (100) shares common stock, par value $.01 authorized and issued to
Spectrum
Schedule 3.6 -- Finders Fees or Similar Payments
Gordian Group, L.P.
Six percent (6%) of aggregate consideration if
definitive contract executed within four (4) months
of the Bankruptcy Court Approval of the April 1, 1995
retention letter of Gordian Group, L.P;
Five and one half percent (5.5%) of aggregate
consideration if definitive contract executed within five (5) to seven (7)
months; and
Five percent (5%) of aggregate consideration if
definitive contract executed over seven (7) months
Schedule 3.7 -- Material Defaults by Company under Material Agreements
None.
Material Claims, Actions, Suits, Proceedings, Arbitrations,
Investigations or Inquiries
Such claims, actions, suits, proceedings, arbitrations,
investigations or inquiries referred to in Seller's Form
10-Q filed with the Securities and Exchange Commission for
the period ended June 30, 1995 as they relate to the
Company.
Schedule 3.9 -- Directors and Officers of the Company
Directors: Donald J. Amoruso
Officers: Donald J. Amoruso - Chief Executive Officer
James L. Paterek - President
Michael Ferrentino - Vice President
Gus Petruzzelli - Vice President
Salvatore T. Marino - Assistant Secretary and
Assistant Treasurer
Schedule 3.10 -- Changes Since the Date of the Most Recent Balance Sheets
Seller has agreed to swap the NEC Business Mate 486/2SE
Server referred on Schedule 2.5(b)(iii) for a server owned
by Seller under jointly acceptable arrangements.
Schedule 4.5 -- Liabilities of Seller and its Affiliates
None
<PAGE>
EXHIBIT A
ESCROW AGREEMENT
ESCROW AGREEMENT dated as of September 11, 1995 among Comforce
Corp., The Lori Corporation, each a Delaware corporation ("Purchaser" and
"Lori", respectively), and Spectrum Information Technologies, Inc., a Delaware
corporation ("Seller"), and Cleary, Gottlieb, Steen & Hamilton, as escrow agent
(the "Escrow Agent"). Capitalized terms used herein and not otherwise defined
shall have the meaning ascribed to such terms in the Stock Purchase Agreement,
dated as of the date hereof, by and among Seller, Lori, Purchaser, ARTRA Group
Incorporated, Peter R. Harvey, Marc L. Werner, James L. Paterek, Michael
Ferrentino and Christopher P. Franco (the "Stock Purchase Agreement").
WHEREAS, pursuant to Sections 2.2(a) and (b) of the Stock
Purchase Agreement, Purchaser is to deposit on the date hereof a portion of the
Purchase Price with the Escrow Agent, to be held and released in accordance with
the terms herein;
NOW, THEREFORE, in consideration of the premises and the
respective agreements hereinafter set forth, the parties hereby agree as
follows:
I. Appointment of Escrow Agent
The Escrow Agent is hereby appointed by Purchaser and Seller
and acknowledges its appointment and agrees to act as agent for such parties
under this Agreement, subject to the terms and condition hereof.
II. Delivery of Funds
Contemporaneously with the execution and delivery of this
Agreement by all parties hereto, Purchaser shall deposit with the Escrow Agent
the sum of Five Hundred Thousand U.S. Dollars ($500,000) to be held by the
Escrow Agent in accordance with the terms of this Agreement. The Escrow Agent
hereby acknowledges receipt of such funds. Any funds held from time to time by
the Escrow Agent pursuant to this Agreement (including earnings thereon, if any)
are hereinafter referred to as the "Escrow Funds."
III. Investment of Escrow Funds
The Escrow Agent shall invest the Escrow Funds as directed by
Seller. If no direction by Seller is received by the Escrow Agent, the Escrow
Agent shall invest the Escrow Funds in the Premium U.S. Treasury Reserves
Landmark Funds account managed by Citibank, N.A. <PAGE>
IV. Release of Escrow Funds
4.1. The Escrow Agent shall release the Escrow Funds, together
with any and all interest earned on the Escrow Funds from the date such amount
was deposited with the Escrow Agent up to the date of such release, to Seller
three business days after the Escrow Agent's (i) receipt from Seller of notice
of the failure of the conditions of Article VIII to be fulfilled at the Closing
Date and of a copy of the Bankruptcy Court Approval Order or (ii) receipt of
notice from Seller of termination of the Stock Purchase Agreement pursuant to
Section 10.1(b) of the Stock Purchase Agreement or (iii) receipt from Seller of
a copy of the Bankruptcy Court Approval Order and the items listed in Article
IX(c), (d), (g) and (h) of the Stock Purchase Agreement or (iv) upon receipt of
notice from Seller that the Closing has occurred.
4.2. The Escrow Agent shall release the Escrow Funds, together
with any and all interest earned on the Escrow Funds from the date such amount
was deposited with the Escrow Agent up to the date of such release, to Purchaser
three business days after the Escrow Agent's (i) receipt from Purchaser of
notice of termination of the Stock Purchase Agreement pursuant to Section
10.1(c), 10.1(d) or 10.3(b) of the Stock Purchase Agreement or (ii) receipt from
Purchaser of a copy of the Bankruptcy Court Approval Order and of notice that
the items listed in Article IX(c), (d), (g) and (h) of the Stock Purchase
Agreement has not been received by it nor has it waived receipt of such items
and that the Closing has not occurred.
4.3. The Escrow Agent shall release one-half of the Escrow
Funds, together with any and all interest earned on such portion of the Escrow
Funds, to each of the Purchaser and Seller not later than three business days
after receipt by the Escrow Agent of notice from Purchaser of termination of the
Stock Purchase Agreement pursuant to Section 10.3(a) thereof.
4.4. In the event that the Escrow Agent receives any
instrument in writing, signed by Purchaser and Seller, directing the release of
the Escrow Funds, the Escrow Agent shall release the Escrow Funds in accordance
with such instrument. In the event that an order is entered by any court of
competent jurisdiction directing the Escrow Agent to release the Escrow Funds,
the Escrow Agent shall release the Escrow Funds in accordance with such order.
In the event of any dispute regarding the release of the Escrow Funds, if Seller
is successful in such dispute, Purchaser and Lori shall be jointly and severally
responsible and shall indemnify Seller for its reasonable legal fees, costs and
expenses incurred in connection therewith and, if Purchaser is successful in
such dispute, Seller shall pay the legal fees, costs and expenses of Lori and
Purchaser incurred in connection therewith.
4.5. As of the date that the Escrow Agent has delivered the
Escrow Funds to Seller or Purchaser in accordance with the provisions hereof,
this Agreement shall terminate as to the Escrow Agent, except that the
provisions of Article V shall survive such termination.
<PAGE>
4.6. Notwithstanding the foregoing provisions of this Article
IV, in the event that prior to the Escrow Agent's release of the Escrow Funds
pursuant to Sections 4.1 or 4.2 hereof, either Purchaser or Seller objects to
such release by notifying the Escrow Agent in writing of its objection and
specifying in detail the reasons therefor, the Escrow Agent shall not so release
the Escrow Funds.
V. Rights of the Escrow Agent
5.1 The Escrow Agent shall have no duties or responsibilities
except those expressly set forth herein and shall not be subject to, nor obliged
to recognize, monitor or enforce the terms of any other agreement between, or
direction or instruction of, Purchaser or Seller, even though reference thereto
may be made herein; provided, however, that these escrow instructions may be
amended at any time or times by an instrument in writing signed by the parties
hereto.
5.2 The Escrow Agent is authorized, in its sole discretion, to
disregard any and all notices or instructions given by any of the undersigned or
by any other person, firm or corporation, except only such notices or
instructions as are hereinabove provided for and orders or process of any court
entered or issued with or without jurisdiction. If any property subject hereto
is at any time attached, garnished, or levied upon under any court order or in
case the payment, assignment, transfer, conveyance or delivery of any such
property shall be stayed or enjoined by any court order, or in case any order,
judgment or decree shall be made or entered by any court affecting such property
or any part thereof, then and in any of such events the Escrow Agent is
authorized, in its sole discretion, to rely upon and comply with any such order,
writ, judgment or decree which it is so advised by legal counsel of its own
choosing is binding upon it, and if it complies with any such order, writ,
judgment or decree it shall not be liable to any of the parties hereto or to any
other person, firm or corporation by reason of such compliance even though such
order, writ, judgment or decree may be subsequently reversed, modified,
annulled, set aside or vacated.
5.3 The Escrow Agent may rely upon any instrument in writing
believed in good faith by it to be genuine and sufficient and shall not be
liable or responsible for any action taken or omitted in accordance with the
provisions thereof.
5.4 The Escrow Agent shall not be personally liable for any
act taken or omitted hereunder except for its gross negligence, bad faith or
willful misconduct.
5.5 Purchaser, Lori and Seller (the "Indemnifying Parties")
hereby agree to be jointly and severally liable for, and indemnify the Escrow
Agent and hold it harmless against any loss, liability, cost and expense
(including reasonable attorneys' fees) which may be imposed upon or incurred by
the Escrow Agent hereunder, except through the Escrow Agent's own gross
negligence, bad faith or willful misconduct. The Escrow Agent shall notify the
Indemnifying Parties promptly of any claim for which it may seek indemnity,
although the failure to notify shall only excuse the obligations of an
Indemnifying Party hereunder to the
<PAGE>
extent that it prejudices the ability of such Indemnifying
Party to contest any such claim. The Indemnifying Parties may contest the claim,
and the Escrow Agent shall cooperate in any such contest, in which case the
Escrow Agent may at its discretion have separate counsel, and the Indemnifying
Parties shall pay the reasonable fees and expenses of such counsel. The
Indemnifying Parties need not pay for any settlement made without their consent.
5.6 In the event of any disagreement between any of the
parties hereto resulting in adverse claims or demands being made in connection
with the subject matter of this Agreement, or in the event that the Escrow Agent
should be in doubt as to what action it should take hereunder, the Escrow Agent
may, at its option, refuse to comply with any claims or demands on it, or refuse
to take any other action hereunder, so long as such disagreement continues or
such doubt exists, and in any such event, the Escrow Agent shall not be or
become liable for damages, interest, or in any other way or to any person for
its failure or refusal to act, and the Escrow Agent shall be entitled to
continue so to refrain from acting until (a) the rights of all parties shall
have been fully and finally adjudicated by a court of competent jurisdiction or
by the mutual agreement of Purchaser , Lori and Seller and (b) the Escrow Agent
shall have received appropriate evidence of the foregoing, in which event the
Escrow Agent shall release the Escrow Funds in accordance with such adjudication
or agreement, as the case may be. In the alternative, the Escrow Agent, may, but
shall not be obligated to, file a suit in interpleader (the parties hereto
consenting to the filing of such action in the Bankruptcy Court for the Eastern
District of New York) for a declaratory judgment for the purpose of having the
respective rights of the parties adjudicated, and may deposit with such court
the Escrow Funds, in which case Purchaser and Lori agree to pay all costs,
expenses and attorneys' fees incurred by the Escrow Agent in connection
therewith, the amount thereof to be fixed and such judgment therefor to be
rendered by the court in such suit.
5.7 Purchaser and Lori acknowledge and agree that the Escrow
Agent has acted and will continue to act as counsel to the Seller, including,
without limitation, in connection with any dispute arising hereunder.
VI. Miscellaneous Provisions
6.1 Purchaser , Lori and Seller shall attempt in good faith to
resolve promptly any disputes arising hereunder.
6.2 All notices, requests and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed given if
delivered personally (including by courier), given by prepaid telegram or mailed
first class, postage prepaid, registered or certified mail or via Federal
Express overnight delivery, addressed as follows: <PAGE>
(a) If to Seller:
Spectrum Information Technologies, Inc.
2700 Westchester Avenue
Purchase, New York 10577
Attention: Mr. Donald J. Amoruso
Fax: (914) 251-1811
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza, Suite 4300
New York, New York 10006
Attention: Edwin B. Mishkin, Esq.
Fax: (212) 225-3999
(b) If to Purchaser:
Comforce Corp.
The Lori Corporation
500 Central Avenue
Post Office Box 8902
Northfield, IL 60093-8902
Attention: Mr. Peter R. Harvey
Fax: (708) 441-6954
with a copy to:
Marc D. Freedman
Attorney At Law
70 Hilltop Road, Suite 2000
Ramsey, NJ 07446
Attention: Marc D. Freedman, Esq.
Fax: (201) 825-4505
(c) If to the Escrow Agent:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza, Suite 4300
New York, New York 10006
Attention: George Weisz, Esq.
Fax: (212) 225-3999
<PAGE>
Each of the foregoing shall be entitled to specify a different
address by giving notice as aforesaid to the others.
All notices, requests and other communications shall be deemed
to have been received at the time that they are actually received, but not later
than three days after delivery by mail. Whenever under the terms hereof the time
for giving a notice or performing an act falls upon a Saturday, Sunday, or
holiday, such time shall be extended to the next business day. Purchaser and
Seller shall provide to each other any notice provided by either to the Escrow
Agent, using the same method of delivery.
6.3 This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.4 This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and assigns;
provided, however, that any assignment of this Agreement or the rights hereunder
by any party hereto without the written consent of the other parties shall be
void. Nothing in this Agreement, expressed or implied, is intended to confer
upon any other person any rights or remedies under or by reason of this
Agreement.
6.5 This Agreement, and all matters relating hereto, shall be
governed by and construed and enforced in accordance with the laws of the State
of New York.
6.6 No consent or waiver, expressed or implied, by any party
of any breach or default by any other in the performance by the other of its
obligations hereunder shall be deemed or construed to be a consent or waiver to
or of any other breach or default in the performance by such party of the same
or any obligations of the party. Failure on the part of any party to complain of
any act or failure to act of the other party or to declare the other party in
default, irrespective of how long such failure continues, shall not constitute a
waiver by that party of its rights under this Agreement or otherwise.
6.7 No modification, amendment, waiver or discharge of this
Agreement shall bind any party unless in writing and signed by or on behalf of
such party.
6.8 The Article captions used herein are for reference
purposes only, and shall not in any way affect the meaning or interpretation of
this Agreement.
6.9 This Agreement contains the entire understanding of the
parties hereto with respect to the subject matter contained herein and
supersedes all prior agreements, correspondence, conversations, negotiations and
understandings between the parties with respect to such subject matter.
6.10 As used in this Agreement, any gender includes a
reference to all other genders and the singular includes a reference to the
plural and vice versa.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
SPECTRUM INFORMATION
TECHNOLOGIES, INC.
By__________________________
Name:
Title:
COMFORCE CORP.
By__________________________
Name:
Title:
THE LORI CORPORATION
By__________________________
Name:
Title:
CLEARY, GOTTLIEB, STEEN & HAMILTON
as Escrow Agent
By__________________________
George Weisz, a Partner
<PAGE>
GUARANTEE
Spectrum Information Technologies, Inc.
2700 Westchester Ave.
Purchase, NY 10577
Ladies and Gentlemen:
I refer to the Stock Purchase Agreement, dated as of the date hereof,
by and among Spectrum Information Technologies, Inc., a corporation organized
under the laws of the State of Delaware ("Seller"), and The Lori Corporation, a
corporation organized under the laws of the State of Delaware ("Lori"), Comforce
Corp., a corporation organized under the laws of the State of Delaware
("Purchaser"), ARTRA Group Incorporated, a corporation organized under the laws
of the State of Delaware, Peter R. Harvey ("Harvey"), Marc L. Werner, James L.
Paterek, Michael Ferrentino, and Christopher P. Franco (the "Stock Purchase
Agreement"). Terms used herein and not otherwise defined herein shall have the
meanings assigned thereto in the Stock Purchase Agreement.
To induce you to enter into the Stock Purchase Agreement, the
undersigned, Harvey, a director of Lori, hereby guarantees pursuant to Section
2.2(c) of the Stock Purchase Agreement the prompt, full and complete payment
when due in accordance with the Stock Purchase Agreement on the Closing Date of
the Closing Payment of Five Million Five Hundred Thousand U.S. Dollars
($5,500,000), subject to the Closing Adjustments, if any, and hereby agrees to
pay such amount in full immediately upon demand in immediately available funds
by federal funds check or certified check or bank wire to an account designated
by Seller in the event such Closing Payment is not paid to Seller on the Closing
Date by Purchaser. Also, pursuant to Section 2.2(c) of the Stock Purchase
Agreement, the undersigned attaches financial statements for a period ending no
earlier than four (4) months prior to the date hereof.
The liability of the undersigned under this Guarantee shall be
irrevocable and unconditional, and shall not be subject to any reduction,
limitation, impairment or termination for any reason, irrespective of any
circumstance which might otherwise constitute a defense, setoff, counterclaim or
recoupment available to, or a discharge of, as a matter of law or equity, any
member of the Purchasing Group, including the undersigned.
Notwithstanding anything to the contrary contained in this Guarantee,
it is understood and agreed that the Guarantor's obligation will arise only upon
the satisfaction or waiver of all contractual conditions precedent to the
Purchaser's obligation to pay the Purchase Price pursuant to the Stock Purchase
Agreement.
<PAGE>
The undersigned hereby represents and warrants to Seller that he has
the capacity to enter into and deliver this Guarantee and to perform its
obligations hereunder.
The undersigned hereby represents and warrants to Seller that this
Guarantee has been duly and validity executed and delivered by the undersigned
and this Guarantee constitutes a valid, binding and enforceable agreement of the
undersigned.
THIS GUARANTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
This Guarantee is made for your benefit and the benefit of any
permitted assignee of your rights under the Stock Purchase Agreement.
The undersigned hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of Purchaser or any other member of the Purchasing Group, any right to require a
proceeding first against Purchaser or any other member of the Purchasing Group
to meet such member's obligations, protest and notice, and all demands
whatsoever and covenants that this Guarantee will not be discharged except by
complete performance of the obligations contained in this Guarantee.
The undersigned hereby waives and releases all rights of subrogation
against Purchaser or any other member of the Purchasing Group and such member's
property and all rights of indemnification, contribution and reimbursement from
Purchaser or any other member of the Purchasing Group and such member's
property, in each case in connection with this Guarantee and any payments made
hereunder, and regardless of whether such rights arise by operation of law,
pursuant to contract or otherwise; provided, however that such waiver and
release will expire one year and one day after the complete and indefeasible
payment in full of the Purchase Price (adjusted by the Closing Adjustments) by
the Purchaser, unless at such time any of the Purchaser or any Guarantor is the
subject of a bankruptcy, insolvency or similar proceeding.
<PAGE>
Seller acknowledges that the Guarantor's obligations hereunder shall
also be discharged by the complete and indefeasible payment in full of the
Purchase Price (adjusted by the Closing Adjustments) by the Purchaser.
Peter R. Harvey
Director, The Lori Corporation
Solely in respect of its acknowledgment in the last paragraph hereof.
SPECTRUM INFORMATION
TECHNOLOGIES, INC.
By: ______________________________
Donald J. Amoruso
<PAGE>
GUARANTEE
Spectrum Information Technologies, Inc.
2700 Westchester Ave.
Purchase, NY 10577
Ladies and Gentlemen:
I refer to the Stock Purchase Agreement, dated as of the date hereof,
by and among Spectrum Information Technologies, Inc., a corporation organized
under the laws of the State of Delaware ("Seller") and The Lori Corporation, a
corporation organized under the laws of the State of Delaware, Comforce Corp., a
corporation organized under the laws of the State of Delaware ("Purchaser"),
ARTRA Group Incorporated, a corporation organized under the laws of the State of
Delaware, Peter R. Harvey, Marc L. Werner ("Werner"), James L. Paterek, Michael
Ferrentino, and Christopher P. Franco (the "Stock Purchase Agreement"). Terms
used herein and not otherwise defined herein shall have the meanings assigned
thereto in the Stock Purchase Agreement.
To induce you to enter into the Stock Purchase Agreement, the
undersigned, Werner, hereby guarantees pursuant to Section 2.2(c) of the Stock
Purchase Agreement the prompt, full and complete payment when due in accordance
with the Stock Purchase Agreement on the Closing Date of the Closing Payment of
Five Million Five Hundred Thousand U.S. Dollars ($5,500,000), subject to the
Closing Adjustments, if any, and hereby agrees to pay such amount in full
immediately upon demand in immediately available funds by federal funds check or
certified check or bank wire to an account designated by Seller in the event
such Closing Payment is not paid to Seller on the Closing Date by Purchaser.
The liability of the undersigned under this Guarantee shall be
irrevocable and unconditional, and shall not be subject to any reduction,
limitation, impairment or termination for any reason, irrespective of any
circumstance which might otherwise constitute a defense, setoff, counterclaim or
recoupment available to, or a discharge of, as a matter of law or equity, any
member of the Purchasing Group, including the undersigned.
Notwithstanding anything to the contrary contained in this Guarantee,
it is understood and agreed that the Guarantor's obligation will arise only upon
the satisfaction or waiver of all contractual conditions precedent to the
Purchaser's obligation to pay the Purchase Price pursuant to the Stock Purchase
Agreement.
<PAGE>
The undersigned hereby represents and warrants to Seller that he has
the capacity to enter into and deliver this Guarantee and to perform its
obligations hereunder.
The undersigned hereby represents and warrants to Seller that this
Guarantee has been duly and validity executed and delivered by the undersigned
and this Guarantee constitutes a valid, binding and enforceable agreement of the
undersigned.
THIS GUARANTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
This Guarantee is made for your benefit and the benefit of any
permitted assignee of your rights under the Stock Purchase Agreement.
The undersigned hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of Purchaser or any other member of the Purchasing Group, any right to require a
proceeding first against Purchaser or any other member of the Purchasing Group
to meet such member's obligations, protest and notice, and all demands
whatsoever and covenants that this Guarantee will not be discharged except by
complete performance of the obligations contained in this Guarantee.
The undersigned hereby waives and releases all rights of subrogation
against Purchaser or any other member of the Purchasing Group and such member's
property and all rights of indemnification, contribution and reimbursement from
Purchaser or any other member of the Purchasing Group and such member's
property, in each case in connection with this Guarantee and any payments made
hereunder, and regardless of whether such rights arise by operation of law,
pursuant to contract or otherwise; provided, however that such waiver and
release will expire one year and one day after the complete and indefeasible
payment in full of the Purchase Price (adjusted by the Closing Adjustments) by
the Purchaser, unless at such time any of the Purchaser or any Guarantor is the
subject of a bankruptcy, insolvency or similar proceeding.
<PAGE>
Seller acknowledges that the Guarantor's obligations hereunder shall
also be discharged by the complete and indefeasible payment in full of the
Purchase Price (adjusted by the Closing Adjustments) by the Purchaser.
Marc L. Werner
President, Manufacturers Indemnity
and Insurance Company of America
Solely in respect of its acknowledgment in the last paragraph hereof.
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By: ______________________________
Donald J. Amoruso
<PAGE>
GUARANTEE
Spectrum Information Technologies, Inc.
2700 Westchester Ave.
Purchase, NY 10577
Ladies and Gentlemen:
We refer to the Stock Purchase Agreement, dated as of the date hereof,
by and among Spectrum Information Technologies, Inc., a corporation organized
under the laws of the State of Delaware ("Seller") and The Lori Corporation, a
corporation organized under the laws of the State of Delaware ("Lori"), Comforce
Corp., a corporation organized under the laws of the State of Delaware
("Purchaser"), ARTRA Group Incorporated, a corporation organized under the laws
of the State of Delaware, Peter R. Harvey, Marc L. Werner, James L. Paterek,
Michael Ferrentino, and Christopher P. Franco (the "Stock Purchase Agreement").
Terms used herein and not otherwise defined herein shall have the meanings
assigned thereto in the Stock Purchase Agreement.
To induce you to enter into the Stock Purchase Agreement, the
undersigned, Lori, hereby guarantees pursuant to Section 2.2(c) of the Stock
Purchase Agreement the prompt, full and complete payment when due in accordance
with the Stock Purchase Agreement on the Closing Date of the Closing Payment of
Five Million Five Hundred Thousand U.S. Dollars ($5,500,000), subject to the
Closing Adjustments, if any, and hereby agrees to pay such amount in full
immediately upon demand in immediately available funds by federal funds check or
certified check or bank wire to an account designated by Seller in the event
such Closing Payment is not paid to Seller on the Closing Date by Purchaser.
Also, pursuant to Section 2.2(c) of the Stock Purchase Agreement, the
undersigned attaches financial statements for a period ending no earlier than
four (4) months prior to the date hereof.
The liability of the undersigned under this Guarantee shall be
irrevocable and unconditional, and shall not be subject to any reduction,
limitation, impairment or termination for any reason, irrespective of any
circumstance which might otherwise constitute a defense, setoff, counterclaim or
recoupment available to, or a discharge of, as a matter of law or equity, any
member of the Purchasing Group, including the undersigned.
Notwithstanding anything to the contrary contained in this Guarantee,
it is understood and agreed that the Guarantor's obligation will arise only upon
the satisfaction or waiver of all contractual conditions precedent to the
Purchaser's obligation to pay the Purchase Price pursuant to the Stock Purchase
Agreement.
<PAGE>
The undersigned hereby represents and warrants to Seller that it has
the capacity to enter into and deliver this Guarantee and to perform its
obligations hereunder.
The undersigned hereby represents and warrants to Seller that this
Guarantee has been duly and validity executed and delivered by the undersigned
and this Guarantee constitutes a valid, binding and enforceable agreement of the
undersigned.
THIS GUARANTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
This Guarantee is made for your benefit and the benefit of any
permitted assignee of your rights under the Stock Purchase Agreement.
The undersigned hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of Purchaser or any other member of the Purchasing Group, any right to require a
proceeding first against Purchaser or any other member of the Purchasing Group
to meet such member's obligations, protest and notice, and all demands
whatsoever and covenants that this Guarantee will not be discharged except by
complete performance of the obligations contained in this Guarantee.
The undersigned hereby waives and releases all rights of subrogation
against Purchaser or any other member of the Purchasing Group and such member's
property and all rights of indemnification, contribution and reimbursement from
Purchaser or any other member of the Purchasing Group and such member's
property, in each case in connection with this Guarantee and any payments made
hereunder, and regardless of whether such rights arise by operation of law,
pursuant to contract or otherwise; provided, however that such waiver and
release will expire one year and one day after the complete and indefeasible
payment in full of the Purchase Price (adjusted by the Closing Adjustments) by
the Purchaser, unless at such time any of the Purchaser or any Guarantor is the
subject of a bankruptcy, insolvency or similar proceeding.
<PAGE>
Seller acknowledges that the Guarantor's obligations hereunder shall
also be discharged by the complete and indefeasible payment in full of the
Purchase Price (adjusted by the Closing Adjustments) by the Purchaser.
THE LORI CORPORATION
----------------------------------
By:
Title:
Solely in respect of its acknowledgment in the last paragraph hereof.
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By: ______________________________
Donald J. Amoruso
<PAGE>
GUARANTEE
Spectrum Information Technologies, Inc.
2700 Westchester Ave.
Purchase, NY 10577
Ladies and Gentlemen:
We refer to the Stock Purchase Agreement, dated as of the date hereof,
by and among Spectrum Information Technologies, Inc., a corporation organized
under the laws of the State of Delaware ("Seller") and The Lori Corporation, a
corporation organized under the laws of the State of Delaware, Comforce Corp., a
corporation organized under the laws of the State of Delaware ("Purchaser"),
ARTRA Group Incorporated, a corporation organized under the laws of the State of
Delaware ("ARTRA"), Peter R. Harvey, Marc L. Werner, James L. Paterek, Michael
Ferrentino, and Christopher P. Franco (the "Stock Purchase Agreement"). Terms
used herein and not otherwise defined herein shall have the meanings assigned
thereto in the Stock Purchase Agreement.
To induce you to enter into the Stock Purchase Agreement, the
undersigned, ARTRA, hereby guarantees pursuant to Section 2.2(c) of the Stock
Purchase Agreement the prompt, full and complete payment when due in accordance
with the Stock Purchase Agreement on the Closing Date of the Closing Payment of
Five Million Five Hundred Thousand U.S. Dollars ($5,500,000), subject to the
Closing Adjustments, if any, and hereby agrees to pay such amount in full
immediately upon demand in immediately available funds by federal funds check or
certified check or bank wire to an account designated by Seller in the event
such Closing Payment is not paid to Seller on the Closing Date by Purchaser.
Also, pursuant to Section 2.2(c) of the Stock Purchase Agreement, the
undersigned attaches financial statements for a period ending no earlier than
four (4) months prior to the date hereof.
The liability of the undersigned under this Guarantee shall be
irrevocable and unconditional, and shall not be subject to any reduction,
limitation, impairment or termination for any reason, irrespective of any
circumstance which might otherwise constitute a defense, setoff, counterclaim or
recoupment available to, or a discharge of, as a matter of law or equity, any
member of the Purchasing Group, including the undersigned.
Notwithstanding anything to the contrary contained in this Guarantee,
it is understood and agreed that the Guarantor's obligation will arise only upon
the satisfaction or waiver of all contractual conditions precedent to the
Purchaser's obligation to pay the Purchase Price pursuant to the Stock Purchase
Agreement.
<PAGE>
The undersigned hereby represents and warrants to Seller that it has
the capacity to enter into and deliver this Guarantee and to perform its
obligations hereunder.
The undersigned hereby represents and warrants to Seller that this
Guarantee has been duly and validity executed and delivered by the undersigned
and this Guarantee constitutes a valid, binding and enforceable agreement of the
undersigned.
THIS GUARANTEE SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
This Guarantee is made for your benefit and the benefit of any
permitted assignee of your rights under the Stock Purchase Agreement.
The undersigned hereby waives diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of Purchaser or any other member of the Purchasing Group, any right to require a
proceeding first against Purchaser or any other member of the Purchasing Group
to meet such member's obligations, protest and notice, and all demands
whatsoever and covenants that this Guarantee will not be discharged except by
complete performance of the obligations contained in this Guarantee.
The undersigned hereby waives and releases all rights of subrogation
against Purchaser or any other member of the Purchasing Group and such member's
property and all rights of indemnification, contribution and reimbursement from
Purchaser or any other member of the Purchasing Group and such member's
property, in each case in connection with this Guarantee and any payments made
hereunder, and regardless of whether such rights arise by operation of law,
pursuant to contract or otherwise; provided, however that such waiver and
release will expire one year and one day after the complete and indefeasible
payment in full of the Purchase Price (adjusted by the Closing Adjustments) by
the Purchaser, unless at such time any of the Purchaser or any Guarantor is the
subject of a bankruptcy, insolvency or similar proceeding.
<PAGE>
Seller acknowledges that the Guarantor's obligations hereunder shall
also be discharged by the complete and indefeasible payment in full of the
Purchase Price (adjusted by the Closing Adjustments) by the Purchaser.
ARTRA CORPORATION
----------------------------------
By:
Title:
Solely in respect of its acknowledgment in the last paragraph hereof.
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By: ______________________________
Donald J. Amoruso
<PAGE>
EXHIBIT H
FORM OF CERTIFICATION THAT AN ENTITY TRANSFEROR
IS NOT A FOREIGN PERSON
Section 1445 of the Internal Revenue Code provides that a
transferee of a U.S. real property interest must withhold tax if the transferor
is a foreign person. To inform the transferee that withholding of tax is not
required upon the disposition of a U.S. real property interest by Spectrum
Information Technologies, Inc. ("Seller"), the undersigned hereby certifies the
following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Seller's U.S. employer identification number is 75-1940923;
and
3. Seller's office address is: 2700 Westchester Avenue
Purchase, New York 10577
Seller understands that this certification may be disclosed to
the Internal Revenue Service by the transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of Seller.
Date: ______________________ _____________________
Name:
Title:
<PAGE>
EXHIBIT I
FORM OF GENERAL RELEASE AND WAIVER OF DONALD J. AMORUSO
This General Release and Waiver is dated as of the __ day of
__, 1995, among Donald J. Amoruso, a resident of the State of New York
("Amoruso"), Spectrum Information Technologies, Inc., a corporation organized
under the laws of the State of Delaware ("Spectrum") and Spectrum Global
Services, Inc. ("Global"), a corporation organized under the laws of the State
of Delaware.
WHEREAS, Amoruso and Spectrum have entered into that certain
employment agreement, dated January 1, 1995 (the "Spectrum Employment
Agreement"), pursuant to which Spectrum may have incurred, and may in the future
incur, certain obligations to Amoruso;
WHEREAS, the Spectrum Employment Agreement provides for the
employment of Amoruso by Spectrum, and Amoruso has been an employee of Spectrum
since January 1, 1995;
WHEREAS, Global has entered into that certain guaranty of the
full and faithful performance and payment by Spectrum of the Spectrum Employment
Agreement (the "Guaranty of Employment Agreement"), pursuant to which Global may
have incurred, and may in the future incur, certain obligations to Amoruso;
WHEREAS, Spectrum has entered into a Stock Purchase Agreement,
dated [_________], 1995 (the "Stock Purchase Agreement") by and among Spectrum,
The Lori Corporation, Comforce Corp. ("Purchaser"), ARTRA Group Incorporated,
Peter R. Harvey, Marc L. Werner, James L. Paterek, Michael Ferrentino and
Christopher P. Franco, under which Spectrum agrees to sell and Purchaser agrees
to purchase all of the outstanding capital stock of Global; and
WHEREAS, in consideration of the mutual agreements and
covenants set forth in the Stock Purchase Agreement, Amoruso desires to release
Global from the Guaranty of Employment Agreement on the terms and conditions set
forth below;
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
<PAGE>
I. GENERAL RELEASE AND WAIVER
AMORUSO AGREES TO RELEASE, REMISE, ACQUIT AND DISCHARGE GLOBAL
AND ITS OFFICERS, AGENTS, EMPLOYEES, GUARANTORS, CONSULTANTS, INDEPENDENT
CONTRACTORS, ATTORNEYS, ADVISERS, SUCCESSORS AND ASSIGNS (THE "GLOBAL GROUP"),
JOINTLY AND SEVERALLY, FROM ANY AND ALL CLAIMS, KNOWN OR UNKNOWN, WHICH AMORUSO,
HIS HEIRS, SUCCESSORS, OR ASSIGNS HAVE, OR MAY NOW OR IN THE FUTURE HAVE,
AGAINST ANY MEMBER OF THE GLOBAL GROUP AND ANY AND ALL LIABILITY WHICH ANY
MEMBER OF THE GLOBAL GROUP HAS, OR MAY NOW OR IN THE FUTURE HAVE TO AMORUSO
UNDER THE GUARANTY OF EMPLOYMENT AGREEMENT, WHETHER DENOMINATED CLAIMS, DEMANDS,
CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES, RELATING TO ANY MATTER,
CAUSE OR THING WHATSOEVER FROM THE BEGINNING OF THE WORLD TO THE DATE OF THIS
GENERAL RELEASE AND WAIVER. THIS RELEASE IS FOR ANY RELIEF, NO MATTER HOW
DENOMINATED, INCLUDING, BUT NOT LIMITED TO, WAGES, BACK PAY, FRONT PAY,
COMPENSATORY DAMAGES OR PUNITIVE DAMAGES. AMORUSO FURTHER AGREES THAT HE WILL
NOT FILE OR PERMIT TO BE FILED ON HIS BEHALF ANY SUCH CLAIM.
SPECTRUM RELEASES THE GLOBAL GROUP FROM ANY LIABILITY OR CLAIM
IT HAS AGAINST THE GLOBAL GROUP TO ENFORCE THE OBLIGATIONS OF THE GLOBAL GROUP
UNDER THE GUARANTY OF EMPLOYMENT AGREEMENT.
II. Identified Consideration
Amoruso acknowledges and agrees that Purchaser has agreed to
enter into the Stock Purchase Agreement, a requirement of which is his release
evidenced hereby, and that Purchaser's entering into the Stock Purchase
Agreement is good and valuable consideration for such release. In addition,
Amoruso represents and warrants that he has not transferred or assigned any
rights under the Guaranty of Employment Agreement to any third party.
III. Third-Party Beneficiary Rights
Amoruso agrees that the terms of this General Release and
Waiver shall inure to the benefit of and shall be enforceable by each member of
the Global Group, each of whom is intended to be a third-party beneficiary
hereof, and its respective successors and assigns.
IV. General Provisions
(a) This General Release and Waiver constitutes the entire
understanding of Global and Amoruso with respect to the subject matter hereof,
and supersedes all prior understandings, written or oral, except as expressly
provided herein. The terms of this General Release and Waiver may be changed,
modified or discharged only by an instrument in writing signed by the parties
hereto. A failure of a party to insist on strict compliance with any provision
of this General Release and Waiver shall not be deemed a waiver of such
provision or any other provision hereof. In the event that any provision of this
General Release and Waiver is determined to be so broad as to be unenforceable,
such provision shall <PAGE>
be interpreted to be only so broad as is enforceable.
(b) This General Release and Waiver shall be construed,
enforced and interpreted in accordance with and governed by the laws of the
State of New York without reference to the principles of conflicts of law. The
courts of New York shall have jurisdiction to entertain any action arising
hereunder.
V. Knowing and Voluntary Waiver
Amoruso agrees and acknowledges that he has read this General
Release and Waiver, has consulted with an attorney of his choosing with respect
hereto and completely understands the terms and consequences hereof and that the
execution of this General Release and Waiver is his knowing, free and voluntary
act.
Donald J. Amoruso
SPECTRUM GLOBAL SERVICES, INC.
By:
Name:
Title:
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT J
FORM OF GENERAL RELEASE AND WAIVER OF
GORDIAN GROUP, L.P. AND OTHERS
This General Release and Waiver is made as of the __ day of
__, 1995, among Gordian Group, L.P. ("Gordian"), Spectrum Global Services, Inc.
("Global"), Spectrum Information Technologies, Inc. ("Spectrum"), Spectrum
Cellular Corporation ("Spectrum Cellular") and Dealer Service Business Systems,
Inc. ("Data One"), each a corporation organized under the laws of the State of
Delaware (all parties other than Global, the "Releasing Persons").
WHEREAS, Gordian, Spectrum, Global, Spectrum Cellular and Data
One have entered into that certain engagement letter, dated as of February 15,
1995 (the "Engagement Letter"), pursuant to which Global may have incurred, and
may in the future incur, certain obligations to Gordian;
WHEREAS, the Engagement Letter provides for the engagement of
Gordian by Spectrum, and Gordian has been financial advisor to Spectrum since
the Bankruptcy Court approved of Gordian's retention on April 4, 1995;
WHEREAS, the Engagement Letter provides for Global's guarantee
of all of Spectrum's obligations under the Engagement Letter;
WHEREAS, Spectrum has entered into a Stock Purchase Agreement,
dated as of [ ] with The Lori Corporation, Comforce Corp. ("Purchaser"), ARTRA
Group Incorporated, Peter R. Harvey, Marc L. Werner, James L. Paterek, Michael
Ferrentino and Christopher P. Franco (the "Stock Purchase Agreement") under
which Spectrum agrees to sell and Purchaser agrees to purchase all of the
outstanding capital stock of Global; and
WHEREAS, Gordian has been requested to release Global from its
guarantee, pursuant to this General Release and Waiver, on the terms and
conditions set forth below;
NOW, THEREFORE, effective upon, and only upon, Bankruptcy
Court approval of Gordian's requested fees in respect of the sale of Global, the
parties hereto hereby agree as follows:
I. GENERAL RELEASE AND WAIVER
THE RELEASING PERSONS AGREE THEY WILL RELEASE, REMISE, ACQUIT
AND DISCHARGE GLOBAL AND ITS OFFICERS, AGENTS, EMPLOYEES, CONSULTANTS,
INDEPENDENT CONTRACTORS, ATTORNEYS, ADVISERS, SUCCESSORS AND ASSIGNS (THE
"GLOBAL GROUP"), AND ONLY THE
<PAGE>
GLOBAL GROUP, JOINTLY AND SEVERALLY, FROM ANY AND ALL CLAIMS,
KNOWN OR UNKNOWN, WHICH THEY, THEIR SUCCESSORS OR ASSIGNS HAVE, OR MAY NOW OR IN
THE FUTURE HAVE, AGAINST ANY MEMBER OF THE GLOBAL GROUP AND ANY AND ALL
LIABILITY WHICH ANY MEMBER OF THE GLOBAL GROUP HAS, OR MAY NOW OR IN THE FUTURE
HAVE TO THE RELEASING PERSONS, WHETHER DENOMINATED CLAIMS, DEMANDS, CAUSES OF
ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES, ARISING UNDER THE ENGAGEMENT LETTER
RELATING TO ANY MATTER, CAUSE OR THING WHATSOEVER FROM THE BEGINNING OF THE
WORLD TO THE DATE OF THIS GENERAL RELEASE AND WAIVER. THIS RELEASE IS FOR ANY
RELIEF, NO MATTER HOW DENOMINATED. THE RELEASING PERSONS FURTHER AGREE THAT THEY
WILL NOT FILE OR PERMIT TO BE FILED ON THEIR BEHALF ANY SUCH CLAIM.
II. No Admission
Global admits no liability of any sort to any of the Releasing
Persons and nothing herein is intended to, or shall be deemed to, constitute an
admission of liability of any kind by any member of the Global Group.
III. Third-Party Beneficiary Rights
The Releasing Persons agree that the terms of this General
Release and Waiver shall inure to the benefit of and shall be enforceable by
each member of the Global Group, each of whom is intended to be a third-party
beneficiary hereof, and its respective successors and assigns.
IV. General Provisions
(a) This General Release and Waiver constitutes the entire
understanding of Global and the Releasing Persons with respect to the subject
matter hereof, and supersedes all prior understandings, written or oral, except
as expressly provided herein. The terms of this General Release and Waiver may
be changed, modified or discharged only by an instrument in writing signed by
the parties hereto. A failure of a party to insist on strict compliance with any
provision of this General Release and Waiver shall not be deemed a waiver of
such provision or any other provision hereof. In the event that any provision of
this General Release and Waiver is determined to be so broad as to be
unenforceable, such provision shall be interpreted to be only so broad as is
enforceable.
(b) This General Release and Waiver shall be construed,
enforced and interpreted in accordance with and governed by the laws of the
State of New York without reference to the principles of conflicts of law. The
courts of New York shall have jurisdiction to entertain any action arising
hereunder.
<PAGE>
V. Knowing and Voluntary Waiver
The Releasing Persons agree and acknowledge that they have
read this General Release and Waiver, consulted with an attorney of their
choosing with respect hereto and completely understands the terms and
consequences hereof and that the execution of this General Release and Waiver is
their knowing, free and voluntary act.
GORDIAN GROUP, L.P.
By:
Name:
Title:
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By:
Name:
Title:
SPECTRUM CELLULAR CORPORATION, INC.
By:
Name:
Title:
DEALER SERVICES BUSINESS SYSTEMS, INC.
By:
Name:
<PAGE>
EXHIBIT K
FORM OF MUTUAL RELEASE AND WAIVER BETWEEN
SPECTRUM GLOBAL SERVICES INC. AND GERALD K. SANDLER
This Mutual Release and Waiver is made as of the __ day of __,
1995, between Gerald K. Sandler ("Sandler") and Spectrum Global Services, Inc.
("Global").
WHEREAS, Sandler and Global have entered into an Employment
Agreement, dated May 31, 1995 (the "Global Employment Agreement"), pursuant to
which Global may have incurred, and may in the future incur, certain obligations
to Sandler;
WHEREAS, the Global Employment Agreement provides for the
employment of Sandler by Global, and Sandler has been an employee of Global,
effective June 1, 1995;
WHEREAS, Sandler may have incurred certain obligations to
Global in connection with his service as an employee of Global;
WHEREAS, Spectrum Information Technologies, Inc. ("Spectrum")
has entered into a Stock Purchase Agreement, dated as of [ ] with The Lori
Corporation, Comforce Corp. ("Purchaser"), ARTRA Group Incorporated, Peter R.
Harvey, Marc L. Werner, James L. Paterek, Michael Ferrentino and Christopher P.
Franco (the "Stock Purchase Agreement") under which Spectrum agrees to sell and
Purchaser agrees to purchase all of the outstanding capital stock of Global; and
WHEREAS, Sandler and Spectrum have entered into an Employment
Agreement, dated as of the date hereof (the "Spectrum Employment Agreement")
and, in consideration of the mutual agreements and covenants set forth therein
and herein, Sandler desires to release Global, and Global desires to release
Sandler, from the Global Employment Agreement on the terms and conditions of
this Mutual Release and Waiver;
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
I. MUTUAL RELEASE AND WAIVER
SANDLER AGREES TO RELEASE, REMISE, ACQUIT AND DISCHARGE GLOBAL
AND ITS OFFICERS, AGENTS, EMPLOYEES, GUARANTORS, CONSULTANTS, INDEPENDENT
CONTRACTORS, ATTORNEYS, ADVISERS, SUCCESSORS AND ASSIGNS (THE "GLOBAL GROUP"),
JOINTLY AND SEVERALLY, FROM ANY AND ALL CLAIMS, KNOWN OR UNKNOWN, WHICH SANDLER,
HIS HEIRS, SUCCESSORS, OR ASSIGNS HAVE, OR MAY NOW OR IN THE FUTURE HAVE,
AGAINST ANY MEMBER OF THE GLOBAL GROUP
<PAGE>
AND ANY AND ALL LIABILITY WHICH ANY MEMBER OF THE GLOBAL GROUP
HAS, OR MAY NOW OR IN THE FUTURE HAVE TO SANDLER, WHETHER DENOMINATED CLAIMS,
DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES, ARISING FROM ANY
AND ALL BASES, INCLUDING BUT NOT LIMITED TO ANY CLAIMS UNDER ANY POLICY,
AGREEMENT, ARRANGEMENT OR PRACTICE OF OR WITH ANY MEMBER OF THE GLOBAL GROUP
(INCLUDING ANY INDEMNIFICATION AGREEMENT OR OBLIGATION) OR ANY FEDERAL, STATE,
OR LOCAL LAW OR REGULATION, RELATING TO ANY MATTER, CAUSE OR THING WHATSOEVER
FROM THE BEGINNING OF THE WORLD TO THE DATE OF THIS MUTUAL RELEASE AND WAIVER,
INCLUDING, WITHOUT LIMITATION, ANY SUCH CLAIMS THAT ARISE OUT OF OR RELATE TO
(I) SANDLER'S RELATIONSHIP WITH THE GLOBAL GROUP, (II) THE TERMINATION OF SUCH
RELATIONSHIP OR (III) THE EMPLOYMENT AGREEMENT, BUT EXCLUDING ANY CLAIMS FOR
INDEMNIFICATION UNDER THE EMPLOYMENT AGREEMENT OR THE BY-LAWS OF GLOBAL. THIS
RELEASE IS FOR ANY RELIEF, NO MATTER HOW DENOMINATED, INCLUDING, BUT NOT LIMITED
TO, WAGES, BACK PAY, FRONT PAY, COMPENSATORY DAMAGES OR PUNITIVE DAMAGES.
SANDLER FURTHER AGREES THAT HE WILL NOT FILE OR PERMIT TO BE FILED ON HIS BEHALF
ANY SUCH CLAIM.
THE GLOBAL GROUP AGREES TO RELEASE, REMISE, ACQUIT AND
DISCHARGE SANDLER AND HIS HEIRS, SUCCESSORS AND ASSIGNS (THE "SANDLER GROUP"),
JOINTLY AND SEVERALLY, FROM ANY AND ALL CLAIMS, KNOWN OR UNKNOWN, WHICH THE
GLOBAL GROUP HAS, OR MAY NOW OR IN THE FUTURE HAVE, AGAINST ANY MEMBER OF THE
SANDLER GROUP AND ANY AND ALL LIABILITY WHICH ANY MEMBER OF THE SANDLER GROUP
HAS, OR MAY NOW OR IN THE FUTURE HAVE TO THE GLOBAL GROUP, WHETHER DENOMINATED
CLAIMS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES, ARISING
FROM ANY AND ALL BASES, INCLUDING BUT NOT LIMITED TO ANY CLAIMS UNDER ANY
POLICY, AGREEMENT OR ARRANGEMENT OR ANY FEDERAL, STATE, OR LOCAL LAW OR
REGULATION, RELATING TO ANY MATTER, CAUSE OR THING WHATSOEVER FROM THE BEGINNING
OF THE WORLD TO THE DATE OF THIS MUTUAL RELEASE AND WAIVER. THIS RELEASE IS FOR
ANY RELIEF, NO MATTER HOW DENOMINATED. THE GLOBAL GROUP FURTHER AGREES THAT IT
WILL NOT FILE OR PERMIT TO BE FILED ON ITS BEHALF ANY SUCH CLAIM.
II. Identified Consideration
Sandler and Global each acknowledge that they have entered
into this Mutual Release and Waiver and Sandler acknowledges and agrees that
Spectrum, and Global acknowledges and agrees that Sandler, has entered into the
<PAGE>
Spectrum Employment Agreement, in consideration for the mutual release evidenced
hereby and that such consideration is good and valuable consideration for such
release.
III. No Admission
(a) Global admits no liability of any sort to Sandler, and
nothing herein is intended to, or shall be deemed to, constitute an admission of
liability of any kind by the Global Group.
(b) Sandler admits no liability of any sort to Global, and
nothing herein is intended to, or shall be deemed to, constitute an admission of
liability of any kind by Sandler.
IV. Third-Party Beneficiary Rights
Sandler agrees that the terms of this Mutual Release and
Waiver shall inure to the benefit of and shall be enforceable by each member of
the Global Group, each of whom is intended to be a third-party beneficiary
hereof, and its respective successors and assigns.
V. General Provisions
(a) This Mutual Release and Waiver constitutes the entire
understanding of Global and Sandler with respect to the subject matter hereof,
and supersedes all prior understandings, written or oral, except as expressly
provided herein. The terms of this Mutual Release and Waiver may be changed,
modified or discharged only by an instrument in writing signed by the parties
hereto. A failure of a party to insist on strict compliance with any provision
of this Mutual Release and Waiver shall not be deemed a waiver of such provision
or any other provision hereof. In the event that any provision of this Mutual
Release and Waiver is determined to be so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
(b) This Mutual Release and Waiver shall be construed,
enforced and interpreted in accordance with and governed by the laws of the
State of New York without reference to the principles of conflicts of law. The
courts of New York shall have jurisdiction to entertain any action arising
hereunder.
(c) Sandler acknowledges that he has been given more than 21
days to consider this agreement and eight days to revoke his agreement hereto.
This agreement shall only become effective upon the Closing (as such term is
defined in the Stock Purchase Agreement).
<PAGE>
VI. Knowing and Voluntary Waiver
Sandler and Global each agree and acknowledge that they have
read this Mutual Release and Waiver, have consulted with an attorney of his or
its choosing with respect hereto and completely understands the terms and
consequences hereof and that the execution of this Mutual Release and Waiver is
his or its knowing, free and voluntary act.
---------------------------------
Gerald K. Sandler
SPECTRUM GLOBAL SERVICES, INC.
----------------------------------
By: Donald J. Amoruso,
Chief Executive Officer
<PAGE>
EXHIBIT M
FORM OF MUTUAL RELEASE AND WAIVER BETWEEN
SPECTRUM INFORMATION TECHNOLOGIES, INC. AND JAMES L. PATEREK
This Mutual Release and Waiver is made as of the __ day of __,
1995, between James L. Paterek, a resident of the State of New York, ("Paterek")
and Spectrum Information Technologies, Inc. ("Spectrum"), a corporation
organized under the laws of the State of Delaware.
WHEREAS, Paterek and Spectrum have entered into an Employment
Agreement, dated as of October 31, 1993, as amended to date (the "Employment
Agreement"), pursuant to which Spectrum may have incurred, and may in the future
incur, certain obligations to Paterek;
WHEREAS, the Employment Agreement provides for the employment
of Paterek by Spectrum, and Paterek has been an employee of Spectrum, since
October 31, 1993;
WHEREAS, Spectrum and its Affiliates (as such term is defined
in the Stock Purchase Agreement, dated _________, 1995 by and among Spectrum and
The Lori Corporation, a corporation organized under the laws of the State of
Delaware ("Lori"), Comforce Corp., a corporation organized under the laws of the
State of Delaware ("Purchaser"), ARTRA Group Incorporated, a corporation
organized under the laws of the State of Delaware, Peter R. Harvey, Marc L.
Werner, Paterek, Michael Ferrentino, and Christopher P. Franco (the "Stock
Purchase Agreement"), may have incurred, and may in the future incur, certain
obligations to Paterek in connection with Paterek's employment by Spectrum;
WHEREAS, Paterek has accepted an offer to become an employee
of, or consultant to, Lori upon the consummation of the transactions
contemplated by the Stock Purchase Agreement;
WHEREAS, pursuant to the Stock Purchase Agreement, Spectrum
has agreed to sell and Purchaser has agreed to purchase all of the issued and
outstanding shares of capital stock of Spectrum Global Services, Inc.
("Global");
WHEREAS, Paterek may have incurred certain obligations to
Spectrum and its Affiliates in connection with his service as an employee of
Spectrum, in connection with his being an officer of Global or in connection
with his membership on the Board of Directors of Spectrum; and <PAGE>
WHEREAS, Spectrum's obligations under the Stock Purchase
Agreement are subject to the execution by Paterek, and Paterek's obligations
under the Stock Purchase Agreement are subject to the execution by Spectrum, of
this Mutual Release and Waiver;
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
I. MUTUAL RELEASE AND WAIVER
PATEREK AGREES TO RELEASE, REMISE, ACQUIT AND DISCHARGE
SPECTRUM AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES,
SHAREHOLDERS, CONSULTANTS, INDEPENDENT CONTRACTORS, ATTORNEYS, ADVISERS,
SUCCESSORS AND ASSIGNS (THE "SPECTRUM GROUP"), JOINTLY AND SEVERALLY, FROM ANY
AND ALL CLAIMS, KNOWN OR UNKNOWN, WHICH PATEREK, HIS HEIRS, SUCCESSORS, OR
ASSIGNS HAVE, OR MAY NOW OR IN THE FUTURE HAVE, AGAINST ANY MEMBER OF THE
SPECTRUM GROUP AND ANY AND ALL LIABILITY WHICH ANY MEMBER OF THE SPECTRUM GROUP
HAS, OR MAY NOW OR IN THE FUTURE HAVE TO PATEREK, WHETHER DENOMINATED CLAIMS,
DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES, ARISING FROM ANY
AND ALL BASES, INCLUDING BUT NOT LIMITED TO ANY CLAIMS UNDER ANY POLICY,
AGREEMENT, ARRANGEMENT OR PRACTICE OF OR WITH ANY MEMBER OF THE SPECTRUM GROUP
(INCLUDING ANY INDEMNIFICATION AGREEMENT OR OBLIGATION) OR ANY FEDERAL, STATE,
OR LOCAL LAW OR REGULATION, RELATING TO ANY MATTER, CAUSE OR THING WHATSOEVER
FROM THE BEGINNING OF THE WORLD TO THE DATE OF THIS MUTUAL RELEASE AND WAIVER,
INCLUDING, WITHOUT LIMITATION, ANY SUCH CLAIMS THAT ARISE OUT OF OR RELATE TO
(I) ANY EVENT OCCURRING IN WHOLE OR IN PART PRIOR TO SPECTRUM'S ACQUISITION OF
GLOBAL ON OCTOBER 31, 1993, (II) PATEREK'S RELATIONSHIP WITH THE SPECTRUM GROUP,
THE TERMINATION OF SUCH RELATIONSHIP OR THE PURCHASE, OWNERSHIP AND SALE BY
SPECTRUM OF GLOBAL, (III) THE EMPLOYMENT AGREEMENT OR (IV) THE PENDING
INDICTMENT OF PATEREK IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW
YORK, EXCEPT FOR ANY CLAIM WHICH PATEREK MAY HAVE FOR INDEMNIFICATION FOR
LIABILITY RELATING TO CIVIL CORPORATE MATTERS OF SPECTRUM IN WHICH PATEREK IS
INVOLVED BECAUSE HE WAS AN OFFICER OF GLOBAL OR A DIRECTOR OF SPECTRUM OR IS
ALLEGED TO HAVE BEEN AN OFFICER OF SPECTRUM (UNLESS A COURT DETERMINES THAT
PATEREK WAS AN ACTIVE PARTICIPANT IN THE EVENT GIVING RISE TO SUCH CLAIM). THIS
RELEASE IS FOR ANY RELIEF, NO MATTER HOW DENOMINATED, INCLUDING, BUT NOT
<PAGE>
LIMITED TO, WAGES, BACK PAY, FRONT PAY, COMPENSATORY DAMAGES
OR PUNITIVE DAMAGES. PATEREK FURTHER AGREES THAT HE WILL NOT FILE OR PERMIT TO
BE FILED ON HIS BEHALF ANY SUCH CLAIM.
THE SPECTRUM GROUP AGREES TO RELEASE, REMISE, ACQUIT AND
DISCHARGE PATEREK AND HIS HEIRS, SUCCESSORS AND ASSIGNS (THE "PATEREK GROUP"),
JOINTLY AND SEVERALLY, FROM ANY AND ALL CLAIMS, KNOWN OR UNKNOWN, WHICH THE
SPECTRUM GROUP HAS, OR MAY NOW OR IN THE FUTURE HAVE, AGAINST ANY MEMBER OF THE
PATEREK GROUP AND ANY AND ALL LIABILITY WHICH ANY MEMBER OF THE PATEREK GROUP
HAS, OR MAY NOW OR IN THE FUTURE HAVE TO THE SPECTRUM GROUP, WHETHER DENOMINATED
CLAIMS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES, ARISING
FROM ANY AND ALL BASES, INCLUDING BUT NOT LIMITED TO ANY CLAIMS UNDER ANY
POLICY, AGREEMENT OR ARRANGEMENT OR ANY FEDERAL, STATE, OR LOCAL LAW OR
REGULATION, RELATING TO ANY MATTER, CAUSE OR THING WHATSOEVER FROM THE BEGINNING
OF THE WORLD TO THE DATE OF THIS MUTUAL RELEASE AND WAIVER, EXCEPT FOR ANY
CLAIMS, KNOWN OR UNKNOWN, WHICH THE SPECTRUM GROUP HAS, OR MAY NOW OR IN THE
FUTURE HAVE, AGAINST ANY MEMBER OF THE PATEREK GROUP ARISING UNDER SECTION 6.2,
6.4, 11.4, 12.3 OR 12.16 OF THE STOCK PURCHASE AGREEMENT AND EXCEPT AS PROVIDED
IN ARTICLE III HEREIN. THIS RELEASE IS FOR ANY RELIEF, NO MATTER HOW
DENOMINATED. THE SPECTRUM GROUP FURTHER AGREES THAT IT WILL NOT FILE OR PERMIT
TO BE FILED ON ITS BEHALF ANY SUCH CLAIM. NOTHING CONTAINED IN THIS MUTUAL
RELEASE AND WAIVER WILL LIMIT THE EFFECT OF SECTION 11.9 OF THE STOCK PURCHASE
AGREEMENT.
II. Identified Consideration
Paterek acknowledges and agrees that Spectrum, and Spectrum
acknowledges and agrees that Paterek, has entered into the Stock Purchase
Agreement in consideration for the mutual release evidenced hereby, and that
Spectrum's and Paterek's entering into the Stock Purchase Agreement is good and
valuable consideration for such release.
III. Acknowledgment Regarding Certain Agreements
Paterek acknowledges and agrees that his obligations under
Sections 6 and 8(g) of the Employment Agreement between Spectrum and Paterek
with respect to the business of the Spectrum Group (excluding Global) shall
continue in effect in accordance with their terms following the date hereof.
Paterek further agrees that such obligations shall be incorporated herein and
made a part hereof as if repeated herein and that Spectrum's agreement to enter
into the Stock Purchase Agreement constitutes additional consideration for his
agreement to be bound by such obligations.
<PAGE>
IV. Certain Statutory Benefits
Spectrum agrees that Paterek may be entitled under applicable
U.S. federal or state law to exercise continuation of coverage or conversion
rights under certain insurance and other welfare plans of Spectrum. This Mutual
Release and Waiver does not and is not intended to diminish his rights and
entitlements under any such plans.
V. No Admission
(a) Spectrum admits no liability of any sort to Paterek and
nothing herein is intended to, or shall be deemed to, constitute an admission of
liability of any kind by any member of the Spectrum Group.
(b) Paterek admits no liability of any sort to Spectrum and
nothing herein is intended to, or shall be deemed to, constitute an admission of
liability of any kind by any member of the Paterek Group.
VI. Third-Party Beneficiary Rights
Paterek agrees that the terms of this Mutual Release and
Waiver shall inure to the benefit of and shall be enforceable by each member of
the Spectrum Group, each of whom is intended to be a third-party beneficiary
hereof, and its respective successors and assigns. Spectrum agrees that the
terms of this Mutual Release and Waiver shall inure to the benefit of and be
enforceable by each member of the Paterek Group, each of whom is intended to be
a third-party beneficiary hereof, and its respective successors and assigns.
VII. General Provisions
(a) This Mutual Release and Waiver constitutes the entire
understanding of Paterek and Spectrum with respect to the subject matter hereof,
and supersedes all prior understandings, written or oral, except as expressly
provided herein. The terms of this Mutual Release and Waiver may be changed,
modified or discharged only by an instrument in writing signed by the parties
hereto. A failure of a party to insist on strict compliance with any provision
of this Mutual Release and Waiver shall not be deemed a waiver of such provision
or any other provision hereof. In the event that any provision of this Mutual
Release and Waiver is determined to be so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
(b) This Mutual Release and Waiver shall be construed,
enforced and interpreted in accordance with and governed by the laws of the
State of New York without reference to the principles of conflicts of law. The
courts of New York shall have jurisdiction to entertain any action arising
hereunder.
<PAGE>
VIII. Knowing and Voluntary Waiver
Paterek and Spectrum each agrees and acknowledges that they
have read this Mutual Release and Waiver, have consulted with an attorney of his
or its choosing with respect hereto and completely understands the terms and
consequences hereof and that the execution of this Mutual Release and Waiver is
his or its knowing, free and voluntary act.
-----------------------------------
James L. Paterek
SPECTRUM INFORMATION TECHNOLOGIES, INC.
--------------------------------------
By: Donald J. Amoruso,
Chief Executive Officer
<PAGE>
EXHIBIT N
FORM OF MUTUAL RELEASE AND WAIVER BETWEEN SPECTRUM
INFORMATION TECHNOLOGIES, INC. AND MICHAEL FERRENTINO
This Mutual Release and Waiver is made as of the __ day of __,
1995, between Michael Ferrentino, a resident of the State of [ ], ("Ferrentino")
and Spectrum Information Technologies, Inc. ("Spectrum"), a corporation
organized under the laws of the State of Delaware.
WHEREAS, Ferrentino and Spectrum have entered into an
Employment Agreement, dated as of October 31, 1993[, as amended to date] (the
"Employment Agreement"), pursuant to which Spectrum may have incurred, and may
in the future incur, certain obligations to Ferrentino;
WHEREAS, the Employment Agreement provides for the employment
of Ferrentino by Spectrum, and Ferrentino has been an employee of Spectrum,
since October 31, 1993;
WHEREAS, Spectrum and its Affiliates (as such term is defined
in the Stock Purchase Agreement, dated _________, 1995 by and among Spectrum and
The Lori Corporation, a corporation organized under the laws of the State of
Delaware ("Lori"), Comforce Corp., a corporation organized under the laws of the
State of Delaware ("Purchaser"), ARTRA Group Incorporated, a corporation
organized under the laws of the State of Delaware, Peter R. Harvey, Marc L.
Werner, James L. Paterek, Ferrentino, and Christopher P. Franco (the "Stock
Purchase Agreement"), may have incurred, and may in the future incur, certain
obligations to Ferrentino in connection with Ferrentino's employment by
Spectrum;
WHEREAS, Ferrentino has accepted an offer to become an
employee of or consultant to Lori upon the consummation of the transactions
contemplated by the Stock Purchase Agreement;
WHEREAS, Ferrentino may have incurred certain obligations to
Spectrum and its Affiliates in connection with his service as an employee of
Spectrum or in connection with his being an officer of Spectrum Global Services,
Inc. ("Global");
WHEREAS, pursuant to the Stock Purchase Agreement, Spectrum
has agreed to sell and Purchaser has agreed to purchase all of the issued and
outstanding shares of capital stock of Global; and
<PAGE>
WHEREAS, Spectrum's obligations under the Stock Purchase
Agreement are subject to the execution by Ferrentino, and Ferrentino's
obligations under the Stock Purchase Agreement are subject to the execution by
Spectrum, of this Mutual Release and Waiver;
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
I. MUTUAL RELEASE AND WAIVER
FERRENTINO AGREES TO RELEASE, REMISE, ACQUIT AND DISCHARGE
SPECTRUM AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES,
SHAREHOLDERS, CONSULTANTS, INDEPENDENT CONTRACTORS, ATTORNEYS, ADVISERS,
SUCCESSORS AND ASSIGNS (THE "SPECTRUM GROUP"), JOINTLY AND SEVERALLY, FROM ANY
AND ALL CLAIMS, KNOWN OR UNKNOWN, WHICH FERRENTINO, HIS HEIRS, SUCCESSORS, OR
ASSIGNS HAVE, OR MAY NOW OR IN THE FUTURE HAVE, AGAINST ANY MEMBER OF THE
SPECTRUM GROUP AND ANY AND ALL LIABILITY WHICH ANY MEMBER OF THE SPECTRUM GROUP
HAS, OR MAY NOW OR IN THE FUTURE HAVE TO FERRENTINO, WHETHER DENOMINATED CLAIMS,
DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES, ARISING FROM ANY
AND ALL BASES, INCLUDING BUT NOT LIMITED TO ANY CLAIMS UNDER ANY POLICY,
AGREEMENT, ARRANGEMENT OR PRACTICE OF OR WITH ANY MEMBER OF THE SPECTRUM GROUP
(INCLUDING ANY INDEMNIFICATION AGREEMENT OR OBLIGATION) OR ANY FEDERAL, STATE,
OR LOCAL LAW OR REGULATION, RELATING TO ANY MATTER, CAUSE OR THING WHATSOEVER
FROM THE BEGINNING OF THE WORLD TO THE DATE OF THIS MUTUAL RELEASE AND WAIVER,
INCLUDING, WITHOUT LIMITATION, ANY SUCH CLAIMS THAT ARISE OUT OF OR RELATE TO
(I) ANY EVENT OCCURRING IN WHOLE OR IN PART PRIOR TO SPECTRUM'S ACQUISITION OF
GLOBAL ON OCTOBER 31, 1993, (II) FERRENTINO'S RELATIONSHIP WITH THE SPECTRUM
GROUP, THE TERMINATION OF SUCH RELATIONSHIP OR THE PURCHASE, OWNERSHIP AND SALE
BY SPECTRUM OF GLOBAL OR (III) THE EMPLOYMENT AGREEMENT, EXCEPT FOR ANY CLAIM
WHICH FERRENTINO MAY HAVE FOR INDEMNIFICATION FOR LIABILITY RELATING TO CIVIL
CORPORATE MATTERS OF SPECTRUM IN WHICH FERRENTINO IS INVOLVED BECAUSE HE WAS AN
OFFICER OF GLOBAL OR IS ALLEGED TO HAVE BEEN AN OFFICER OF SPECTRUM (UNLESS A
COURT DETERMINES THAT FERRENTINO WAS AN ACTIVE PARTICIPANT IN THE EVENT GIVING
RISE TO SUCH CLAIM). THIS RELEASE IS FOR ANY RELIEF, NO MATTER HOW DENOMINATED,
INCLUDING, BUT NOT LIMITED TO, WAGES, BACK PAY, FRONT PAY, COMPENSATORY DAMAGES
OR PUNITIVE DAMAGES. FERRENTINO FURTHER
<PAGE>
AGREES THAT HE WILL NOT FILE OR PERMIT TO BE FILED ON HIS
BEHALF ANY SUCH CLAIM.
THE SPECTRUM GROUP AGREES TO RELEASE, REMISE, ACQUIT AND
DISCHARGE FERRENTINO AND HIS HEIRS, SUCCESSORS AND ASSIGNS (THE "FERRENTINO
GROUP"), JOINTLY AND SEVERALLY, FROM ANY AND ALL CLAIMS, KNOWN OR UNKNOWN, WHICH
THE SPECTRUM GROUP HAS, OR MAY NOW OR IN THE FUTURE HAVE, AGAINST ANY MEMBER OF
THE FERRENTINO GROUP AND ANY AND ALL LIABILITY WHICH ANY MEMBER OF THE
FERRENTINO GROUP HAS, OR MAY NOW OR IN THE FUTURE HAVE TO THE SPECTRUM GROUP,
WHETHER DENOMINATED CLAIMS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR
LIABILITIES, ARISING FROM ANY AND ALL BASES, INCLUDING BUT NOT LIMITED TO ANY
CLAIMS UNDER ANY POLICY, AGREEMENT OR ARRANGEMENT OR ANY FEDERAL, STATE, OR
LOCAL LAW OR REGULATION, RELATING TO ANY MATTER, CAUSE OR THING WHATSOEVER FROM
THE BEGINNING OF THE WORLD TO THE DATE OF THIS MUTUAL RELEASE AND WAIVER, EXCEPT
FOR ANY CLAIMS, KNOWN OR UNKNOWN, WHICH THE SPECTRUM GROUP HAS, OR MAY NOW OR IN
THE FUTURE HAVE, AGAINST ANY MEMBER OF THE FERRENTINO GROUP ARISING UNDER
SECTION 6.2, 6.4, 11.4. 12.3 OR 12.16 OF THE STOCK PURCHASE AGREEMENT AND EXCEPT
AS PROVIDED IN ARTICLE III HEREIN. THIS RELEASE IS FOR ANY RELIEF, NO MATTER HOW
DENOMINATED. THE SPECTRUM GROUP FURTHER AGREES THAT IT WILL NOT FILE OR PERMIT
TO BE FILED ON ITS BEHALF ANY SUCH CLAIM. NOTHING CONTAINED IN THIS MUTUAL
RELEASE AND WAIVER WILL LIMIT THE EFFECT OF SECTION 11.9 OF THE STOCK PURCHASE
AGREEMENT.
II. Identified Consideration
Ferrentino acknowledges and agrees that Spectrum, and Spectrum
acknowledges and agrees that Ferrentino, has entered into the Stock Purchase
Agreement in consideration for the mutual release evidenced hereby, and that
Spectrum's and Ferrentino's entering into the Stock Purchase Agreement is good
and valuable consideration for such release.
III. Acknowledgement Regarding Certain Agreements
Ferrentino acknowledges and agrees that his obligations under
Sections 6 and 8(g) of the Employment Agreement between Spectrum and Ferrentino
with respect to the business of the Spectrum Group (excluding Global) shall
continue in effect in accordance with their terms following the date hereof.
Ferrentino further agrees that such obligations shall be incorporated herein and
made a part hereof as if repeated herein and that Spectrum's agreement to enter
into the Stock Purchase Agreement constitutes additional consideration for his
agreement to be bound by such obligations.
<PAGE>
IV. Certain Statutory Benefits
Spectrum agrees that Ferrentino may be entitled under
applicable U.S. federal or state law to exercise continuation of coverage or
conversion rights under certain insurance and other welfare plans of Spectrum.
This Mutual Release and Waiver does not and is not intended to diminish his
rights and entitlements under any such plans.
V. No Admission
(a) Spectrum admits no liability of any sort to Ferrentino and
nothing herein is intended to, or shall be deemed to, constitute an admission of
liability of any kind by any member of the Spectrum Group.
(b) Ferrentino admits no liability of any sort to Spectrum and
nothing herein is intended to, or shall be deemed to, constitute an admission of
liability of any kind by any member of the Spectrum Group.
VI. Third-Party Beneficiary Rights
Ferrentino agrees that the terms of this Mutual Release and
Waiver shall inure to the benefit of and shall be enforceable by each member of
the Spectrum Group, each of whom is intended to be a third-party beneficiary
hereof, and its respective successors and assigns. Spectrum agrees that the
terms of this Mutual Release and Waiver shall inure to the benefit of and shall
be enforceable by each member of the Ferrentino Group, each of whom is intended
to be a third-party beneficiary hereof, and its respective successors and
assigns.
VII. General Provisions
(a) This Mutual Release and Waiver constitutes the entire
understanding of Spectrum and Ferrentino with respect to the subject matter
hereof, and supersedes all prior understandings, written or oral, except as
expressly provided herein. The terms of this Mutual Release and Waiver may be
changed, modified or discharged only by an instrument in writing signed by the
parties hereto. A failure of a party to insist on strict compliance with any
provision of this Mutual Release and Waiver shall not be deemed a waiver of such
provision or any other provision hereof. In the event that any provision of this
Mutual Release and Waiver is determined to be so broad as to be unenforceable,
such provision shall be interpreted to be only so broad as is enforceable.
(b) This Mutual Release and Waiver shall be construed,
enforced and interpreted in accordance with and governed by the laws of the
State of New York without reference to the principles of conflicts of law. The
courts of New York shall have jurisdiction to entertain any action arising
hereunder.
<PAGE>
VIII. Knowing and Voluntary Waiver
Ferrentino and Spectrum each agree and acknowledge that they
have read this Mutual Release and Waiver, have consulted with an attorney of his
or its choosing with respect hereto and completely understands the terms and
consequences hereof and that the execution of this Mutual Release and Waiver is
his or its knowing, free and voluntary act.
-------------------------------------
Michael Ferrentino
SPECTRUM INFORMATION TECHNOLOGIES, INC.
--------------------------------------
By: Donald J. Amoruso,
Chief Executive Officer
<PAGE>
EXHIBIT O
FORM OF MUTUAL RELEASE AND WAIVER BETWEEN SPECTRUM
INFORMATION TECHNOLOGIES INC. AND CHRISTOPHER P. FRANCO
This Mutual Release and Waiver is made as of the __ day of __,
1995, between Christopher P. Franco, a resident of the State of Connecticut,
("Franco") and Spectrum Information Technologies, Inc. ("Spectrum"), a
corporation organized under the laws of the State of Delaware.
WHEREAS, Franco and Spectrum have entered into an Employment
Agreement, dated October 29, 1993, as amended to date (the "Employment
Agreement"), pursuant to which Spectrum may have incurred, and may in the future
incur, certain obligations to Franco;
WHEREAS, the Employment Agreement provides for the employment
of Franco by Spectrum, and Franco has been an employee of Spectrum, since
November 15, 1993;
WHEREAS, Spectrum and its Affiliates (as such term is defined
in the Stock Purchase Agreement, dated _________, 1995 by and among Spectrum and
The Lori Corporation, a corporation organized under the laws of the State of
Delaware ("Lori"), Comforce Corp., a corporation organized under the laws of the
State of Delaware ("Purchaser"), ARTRA Group Incorporated, a corporation
organized under the laws of the State of Delaware, Peter R. Harvey, Marc L.
Werner, James L. Paterek, Michael Ferrentino, and Franco (the "Stock Purchase
Agreement"), may have incurred, and may in the future incur, certain obligations
to Franco in connection with Franco's employment by Spectrum;
WHEREAS, Franco has accepted an offer to become an employee of
or consultant to Lori upon the consummation of the transactions contemplated by
the Stock Purchase Agreement;
WHEREAS, Franco may have incurred certain obligations to
Spectrum and its Affiliates in connection with his service as an employee of
Spectrum or in connection with his being an officer of Spectrum;
WHEREAS, pursuant to the Stock Purchase Agreement, Spectrum
has agreed to sell and Purchaser has agreed to purchase all of the issued and
outstanding shares of capital stock of Spectrum Global Services, Inc.
("Global"); and
WHEREAS, Spectrum's obligations under the Stock Purchase
Agreement are subject to the execution by Franco, and Franco's obligations under
the Stock Purchase Agreement are subject to the execution by Spectrum, of this
Mutual Release and Waiver;
<PAGE>
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto hereby agree as
follows:
I. MUTUAL RELEASE AND WAIVER
FRANCO AGREES TO RELEASE, REMISE, ACQUIT AND DISCHARGE
SPECTRUM AND ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES,
SHAREHOLDERS, CONSULTANTS, INDEPENDENT CONTRACTORS, ATTORNEYS, ADVISERS,
SUCCESSORS AND ASSIGNS (THE "SPECTRUM GROUP"), JOINTLY AND SEVERALLY, FROM ANY
AND ALL CLAIMS, KNOWN OR UNKNOWN, WHICH FRANCO, HIS HEIRS, SUCCESSORS, OR
ASSIGNS HAVE, OR MAY NOW OR IN THE FUTURE HAVE, AGAINST ANY MEMBER OF THE
SPECTRUM GROUP AND ANY AND ALL LIABILITY WHICH ANY MEMBER OF THE SPECTRUM GROUP
HAS, OR MAY NOW OR IN THE FUTURE HAVE TO FRANCO, WHETHER DENOMINATED CLAIMS,
DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR LIABILITIES, ARISING FROM ANY
AND ALL BASES, INCLUDING BUT NOT LIMITED TO ANY CLAIMS UNDER ANY POLICY,
AGREEMENT, ARRANGEMENT OR PRACTICE OF OR WITH ANY MEMBER OF THE SPECTRUM GROUP
(INCLUDING ANY INDEMNIFICATION AGREEMENT OR OBLIGATION) OR ANY FEDERAL, STATE,
OR LOCAL LAW OR REGULATION, RELATING TO ANY MATTER, CAUSE OR THING WHATSOEVER
FROM THE BEGINNING OF THE WORLD TO THE DATE OF THIS MUTUAL RELEASE AND WAIVER,
INCLUDING, WITHOUT LIMITATION, ANY SUCH CLAIMS THAT ARISE OUT OF OR RELATE TO
(I) ANY EVENT OCCURRING IN WHOLE OR IN PART PRIOR TO SPECTRUM'S ACQUISITION OF
GLOBAL ON OCTOBER 31, 1993, (II) FRANCO'S RELATIONSHIP WITH THE SPECTRUM GROUP,
THE TERMINATION OF SUCH RELATIONSHIP OR THE PURCHASE, OWNERSHIP AND SALE BY
SPECTRUM OF GLOBAL OR (III) THE EMPLOYMENT AGREEMENT, BUT EXCLUDING ANY CLAIMS
FOR INDEMNIFICATION UNDER THE EMPLOYMENT AGREEMENT OR THE BY-LAWS OF SPECTRUM.
THIS RELEASE IS FOR ANY RELIEF, NO MATTER HOW DENOMINATED, INCLUDING, BUT NOT
LIMITED TO, WAGES, BACK PAY, FRONT PAY, COMPENSATORY DAMAGES OR PUNITIVE
DAMAGES. FRANCO FURTHER AGREES THAT HE WILL NOT FILE OR PERMIT TO BE FILED ON
HIS BEHALF ANY SUCH CLAIM.
THE SPECTRUM GROUP AGREES TO RELEASE, REMISE, ACQUIT AND
DISCHARGE FRANCO AND HIS HEIRS, SUCCESSORS AND ASSIGNS (THE "FRANCO GROUP"),
JOINTLY AND SEVERALLY, FROM ANY AND ALL CLAIMS, KNOWN OR UNKNOWN, WHICH THE
SPECTRUM GROUP HAS, OR MAY NOW OR IN THE FUTURE HAVE, AGAINST ANY MEMBER OF THE
<PAGE>
FRANCO GROUP AND ANY AND ALL LIABILITY WHICH ANY MEMBER OF THE
FRANCO GROUP HAS, OR MAY NOW OR IN THE FUTURE HAVE TO THE SPECTRUM GROUP,
WHETHER DENOMINATED CLAIMS, DEMANDS, CAUSES OF ACTION, OBLIGATIONS, DAMAGES OR
LIABILITIES, ARISING FROM ANY AND ALL BASES, INCLUDING BUT NOT LIMITED TO ANY
CLAIMS UNDER ANY POLICY, AGREEMENT OR ARRANGEMENT OR ANY FEDERAL, STATE, OR
LOCAL LAW OR REGULATION, RELATING TO ANY MATTER, CAUSE OR THING WHATSOEVER FROM
THE BEGINNING OF THE WORLD TO THE DATE OF THIS MUTUAL RELEASE AND WAIVER, EXCEPT
FOR ANY CLAIMS, KNOWN OR UNKNOWN, WHICH THE SPECTRUM GROUP HAS, OR MAY NOW OR IN
THE FUTURE HAVE, AGAINST ANY MEMBER OF THE FRANCO GROUP ARISING UNDER SECTION
6.2, 6.4, 11.4, 12.3 OR 12.16 OF THE STOCK PURCHASE AGREEMENT AND EXCEPT AS
PROVIDED IN ARTICLE III HEREIN. THIS RELEASE IS FOR ANY RELIEF, NO MATTER HOW
DENOMINATED. THE SPECTRUM GROUP FURTHER AGREES THAT IT WILL NOT FILE OR PERMIT
TO BE FILED ON ITS BEHALF ANY SUCH CLAIM. NOTHING CONTAINED IN THIS MUTUAL
RELEASE AND WAIVER WILL LIMIT THE EFFECT OF SECTION 11.9 OF THE STOCK PURCHASE
AGREEMENT.
II. Identified Consideration
Franco acknowledges and agrees that Spectrum, and Spectrum
acknowledges and agrees that Franco, has entered into the Stock Purchase
Agreement in consideration for the mutual release evidenced hereby, and that
Spectrum's and Franco's entering into the Stock Purchase Agreement is good and
valuable consideration for such release.
III. Acknowledgment Regarding Certain Agreements
Franco acknowledges and agrees that his obligations under
Section 6 of the Employment Agreement between Spectrum and Franco with respect
to the business of the Spectrum Group (excluding Global) shall continue in
effect in accordance with its terms following the date hereof. Franco further
agrees that such obligations shall be incorporated herein and made a part hereof
as if repeated herein and that Spectrum's agreement to enter into the Stock
Purchase Agreement constitutes additional consideration for his agreement to be
bound by such obligations.
IV. Certain Statutory Benefits
Spectrum agrees that Franco may be entitled under applicable
U.S. federal or state law to exercise continuation of coverage or conversion
rights under certain insurance and other welfare plans of Spectrum. This Mutual
Release and Waiver does not and is not intended to diminish his rights and
entitlements under any such plans.
<PAGE>
V. No Admission
(a) Spectrum admits no liability of any sort to Franco and
nothing herein is intended to, or shall be deemed to, constitute an admission of
liability of any kind by any member of the Spectrum Group.
(b) Franco admits no liability of any sort to Spectrum and
nothing herein is intended to, or shall be deemed to, constitute an admission of
liability of any kind by any member of the Spectrum Group.
VI. Third-Party Beneficiary Rights
Franco agrees that the terms of this Mutual Release and Waiver
shall inure to the benefit of and shall be enforceable by each member of the
Spectrum Group, each of whom is intended to be a third-party beneficiary hereof,
and its respective successors and assigns. Spectrum agrees that the terms of
this Mutual Release and Waiver shall inure to the benefit of and shall be
enforceable by each member of the Franco Group, each of whom is intended to be a
third-party beneficiary hereof, and its respective successors and assigns.
VII. General Provisions
(a) This Mutual Release and Waiver constitutes the entire
understanding of Spectrum and Franco with respect to the subject matter hereof,
and supersedes all prior understandings, written or oral, except as expressly
provided herein. The terms of this Mutual Release and Waiver may be changed,
modified or discharged only by an instrument in writing signed by the parties
hereto. A failure of a party to insist on strict compliance with any provision
of this Mutual Release and Waiver shall not be deemed a waiver of such provision
or any other provision hereof. In the event that any provision of this Mutual
Release and Waiver is determined to be so broad as to be unenforceable, such
provision shall be interpreted to be only so broad as is enforceable.
(b) This Mutual Release and Waiver shall be construed,
enforced and interpreted in accordance with and governed by the laws of the
State of New York without reference to the principles of conflicts of law. The
courts of New York shall have jurisdiction to entertain any action arising
hereunder.
<PAGE>
VIII. Knowing and Voluntary Waiver
Franco and Spectrum each agree and acknowledge that they have
read this Mutual Release and Waiver, have consulted with an attorney of his or
its choosing with respect hereto and completely understands the terms and
consequences hereof and that the execution of this Mutual Release and Waiver is
his or its knowing, free and voluntary act.
Christopher P. Franco
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By: Donald J. Amoruso,
Chief Executive Officer
<PAGE>
EXHIBIT P
FORM OF MANAGER ESCROW AGREEMENT
ESCROW AGREEMENT dated as of [ ], 1995 among James L. Paterek
("Paterek"), Michael Ferrentino ("Ferrentino" and collectively with Paterek the
"Managers"), Spectrum Information Technologies, Inc., a Delaware corporation
("Seller"), and Marc D. Freedman, as escrow agent (the "Manager Escrow Agent").
Capitalized terms used herein and not otherwise defined shall have the meaning
ascribed to such terms in the Stock Purchase Agreement, dated as of the date
hereof, by and among the Managers, Seller, The Lori Corporation, Comforce Corp.,
ARTRA Group Incorporated, Peter R. Harvey, Marc L. Werner and Manufacturers
Indemnity and Insurance Company of America (the "Stock Purchase Agreement").
WHEREAS, pursuant to Section 11.4(b) of the Stock Purchase Agreement,
the Managers are to deposit on the Closing Date (as defined in the Stock
Purchase Agreement) the sum of Fifty Thousand U.S. Dollars ($50,000) with the
Manager Escrow Agent, to be held and released in accordance with the terms
herein;
NOW, THEREFORE, in consideration of the premises and the respective
agreements hereinafter set forth, the parties hereby agree as follows:
I. Appointment of Manager Escrow Agent
The Manager Escrow Agent is hereby appointed by the Managers and Seller
and acknowledges its appointment and agrees to act as agent for such parties
under this Agreement, subject to the terms and condition hereof.
II. Delivery of Funds
On the Closing Date (as defined in the Stock Purchase Agreement), the
Managers shall deposit with the Manager Escrow Agent the sum of Fifty Thousand
U.S. Dollars ($50,000) to be held by the Manager Escrow Agent in accordance with
the terms of this Agreement. Any funds held from time to time by the Manager
Escrow Agent pursuant to this Agreement (including earnings thereon, if any) are
hereinafter referred to as the "Escrow Funds."
<PAGE>
III. Investment of Escrow Funds
The Manager Escrow Agent shall invest the Escrow Funds in the Premium
U.S. Treasury Reserves Landmark Funds account managed by Citibank, N.A.
IV. Release of Escrow Funds
4.1 The Manager Escrow Agent shall release the Escrow Funds, together
with any and all interest earned on the Escrow Funds from the date such amount
was deposited with the Manager Escrow Agent up to the date of such release three
business days after the earlier to occur of (i) the expiration of the escrow in
accordance with the provisions of Section 11.4 of the Stock Purchase Agreement,
unless a claim has been filed against such escrow in accordance with such
Section prior to such expiration and (ii) in accordance with any instrument in
writing signed by each of the Managers and Seller or in accordance with any
order of a court of competent jurisdiction directing the Manager Escrow Agent to
release the Escrow Funds.
4.2. As of the date that the Manager Escrow Agent has delivered the
Escrow Funds to Seller or the Managers in accordance with the provisions hereof,
this Agreement shall terminate as to the Manager Escrow Agent, except that the
provisions of Article V hereof shall survive such termination.
V. Rights of the Manager Escrow Agent
5.1 The Manager Escrow Agent shall have no duties or responsibilities
except those expressly set forth herein and shall not be subject to, nor obliged
to recognize, monitor or enforce the terms of any other agreement between, or
direction or instruction of, the Managers or Seller, even though reference
thereto may be made herein; provided, however, that these escrow instructions
may be amended at any time or times by an instrument in writing signed by the
parties hereto.
5.2 The Manager Escrow Agent is authorized, in its sole discretion, to
disregard any and all notices or instructions given by any of the undersigned or
by any other person, firm or corporation, except only such notices or
instructions as are hereinabove provided for and orders or process of any court
entered or issued with or without jurisdiction. If any property subject hereto
is at any time attached, garnished, or levied upon under any court order or in
case the payment, assignment, transfer, conveyance or delivery of any such
property shall be stayed or enjoined by any court order, or in case any order,
judgment or decree shall be made or entered by any court affecting such property
or any part thereof, then and in any of such events the Manager Escrow Agent is
authorized, in its sole discretion, to
<PAGE>
rely upon and comply with any such order, writ, judgment or decree which it is
so advised by legal counsel of its own choosing is binding upon it, and if it
complies with any such order, writ, judgment or decree it shall not be liable to
any of the parties hereto or to any other person, firm or corporation by reason
of such compliance even though such order, writ, judgment or decree may be
subsequently reversed, modified, annulled, set aside or vacated.
5.3 The Manager Escrow Agent may rely upon any instrument in writing
believed in good faith by it to be genuine and sufficient and shall not be
liable or responsible for any action taken or omitted in accordance with the
provisions thereof.
5.4 The Manager Escrow Agent shall not be personally liable for any act
taken or omitted hereunder except for its gross negligence, bad faith or willful
misconduct.
5.5 The Managers and Seller (the "Indemnifying Parties") hereby agree
to be jointly and severally liable for, and indemnify the Manager Escrow Agent
and hold it harmless against any loss, liability, cost and expense (including
reasonable attorneys' fees) which may be imposed upon or incurred by the Manager
Escrow Agent hereunder, except through the Manager Escrow Agent's own gross
negligence, bad faith or willful misconduct. The Manager Escrow Agent shall
notify the Indemnifying Parties promptly of any claim for which it may seek
indemnity, although the failure to notify shall only excuse the obligations of
an Indemnifying Party hereunder to the extent that it prejudices the ability of
such Indemnifying Party to contest any such claim. The Indemnifying Parties may
contest the claim, and the Manager Escrow Agent shall cooperate in any such
contest, in which case the Manager Escrow Agent may have at its discretion
separate counsel, and the Indemnifying Parties shall pay the reasonable fees and
expenses of such counsel. The Indemnifying Parties need not pay for any
settlement made without their consent.
5.6 In the event of any disagreement between any of the parties hereto
resulting in adverse claims or demands being made in connection with the subject
matter of this Agreement, or in the event that the Manager Escrow Agent should
be in doubt as to what action it should take hereunder, the Manager Escrow Agent
may, at its option, refuse to comply with any claims or demands on it, or refuse
to take any other action hereunder, so long as such disagreement continues or
such doubt exists, and in any such event, the Manager Escrow Agent shall not be
or become liable for damages, interest, or in any other way or to any person for
its failure or refusal to act, and the Manager Escrow Agent shall be entitled to
continue so to refrain from acting until (a) the rights of all parties shall
have been fully and finally adjudicated by a court of competent jurisdiction or
by the mutual agreement of the Managers and Seller and (b) the Manager Escrow
Agent shall have received appropriate evidence of the foregoing, in which event
the Manager Escrow Agent shall release the Escrow Funds in accordance with such
adjudication or agreement, as the case may be. In the alternative, the Manager
Escrow Agent, may, but shall not be obligated to, file a suit in interpleader
(the parties hereto consenting to the filing of such action in the Bankruptcy
Court for the Eastern District of New York) for a declaratory judgment for the
purpose of having the
<PAGE>
respective rights of the parties adjudicated, and may deposit with such court
the Escrow Funds, in which case the Managers agree to pay all costs, expenses
and attorneys' fees incurred by the Manager Escrow Agent in connection
therewith, the amount thereof to be fixed and such judgment therefor to be
rendered by the court in such suit.
5.7 Seller acknowledges and agrees that the Manager Escrow Agent has
acted and will continue to act as counsel to the Managers, including, without
limitation, in connection with any dispute arising hereunder.
VI. Miscellaneous Provisions
6.1 Subject to Section 5.6 hereof, if the Closing (as defined in the
Stock Purchase Agreement) does not occur under the Stock Purchase Agreement for
any reason, or if the Stock Purchase Agreement is terminated pursuant to Section
10.1 thereof, this Agreement shall terminate and be of no force or effect.
6.2 The Managers and Seller shall attempt in good faith to resolve
promptly any disputes arising hereunder.
6.3 All notices, requests and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed given if
delivered personally (including by courier), given by prepaid telegram or mailed
first class, postage prepaid, registered or certified mail or via Federal
Express overnight delivery, addressed as follows:
(a) If to Seller:
Spectrum Information Technologies, Inc.
2700 Westchester Avenue
Purchase, New York 10577
Attention: Mr. Donald J. Amoruso
Fax: (914) 251-1811
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza, Suite 4300
New York, New York 10006
Attention: Edwin B. Mishkin, Esq.
Fax: (212) 225-3999
<PAGE>
(b) If to the Managers:
James L. Paterek
86 South Drive
Plandome, NY 11030
Fax: (516) 352-3362
Michael Ferrentino
956 Cedar Swamp Road
Glen Head, NY 11545
with a copy to:
Marc D. Freedman
Attorney At Law
70 Hilltop Road, Suite 2000
Ramsey, NJ 07446
Attention: Marc D. Freedman, Esq.
Fax: (201) 825-4505
(c) If to the Manager Escrow Agent:
Marc D. Freedman
Attorney At Law
70 Hilltop Road, Suite 2000
Ramsey, NJ 07446
Attention: Marc D. Freedman, Esq.
Fax: (201) 825-4505
Each of the foregoing shall be entitled to specify a different address
by giving notice as aforesaid to the others.
All notices, requests and other communications shall be deemed to have
been received at the time that they are actually received, but not later than
three days after delivery by mail. Whenever under the terms hereof the time for
giving a notice or performing an act falls upon a Saturday, Sunday, or holiday,
such time shall be extended to the next business day. The Managers and Seller
shall provide to each other any notice provided by either of them to the Manager
Escrow Agent, using the same method of delivery.
6.4 This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
<PAGE>
6.5 This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, personal
representatives, successors and assigns; provided, however, that any assignment
of this Agreement or the rights hereunder by any party hereto without the
written consent of the other parties shall be void. Nothing in this Agreement,
expressed or implied, is intended to confer upon any other person any rights or
remedies under or by reason of this Agreement.
6.6 This Agreement, and all matters relating hereto, shall be governed
by and construed and enforced in accordance with the laws of the State of New
York.
6.7 No consent or waiver, expressed or implied, by any party of any
breach or default by any other in the performance by the other of its
obligations hereunder shall be deemed or construed to be a consent or waiver to
or of any other breach or default in the performance by such party of the same
or any obligations of the party. Failure on the part of any party to complain of
any act or failure to act of the other party or to declare the other party in
default, irrespective of how long such failure continues, shall not constitute a
waiver by that party of its rights under this Agreement or otherwise.
6.8 No modification, amendment, waiver or discharge of this Agreement
shall bind any party unless in writing and signed by or on behalf of such party.
6.9 The Article captions used herein are for reference purposes only,
and shall not in any way affect the meaning or interpretation of this Agreement.
6.10 This Agreement contains the entire understanding of the parties
hereto with respect to the subject matter contained herein and supersedes all
prior agreements, correspondence, conversations, negotiations and understandings
between the parties with respect to such subject matter.
6.11 As used in this Agreement, any gender includes a reference to all
other genders and the singular includes a reference to the plural and vice
versa.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
SPECTRUM INFORMATION
TECHNOLOGIES, INC.
By__________________________
Name:
Title:
JAMES L. PATEREK
----------------------------
MICHAEL FERRENTINO
----------------------------
MARC D. FREEDMAN
as Manager Escrow Agent
--------------------------
<PAGE>
EXHIBIT Q
NON-COMPETITION AGREEMENT
AGREEMENT, dated this 11th day of September, 1995, between
SPECTRUM INFORMATION TECHNOLOGIES, INC., a corporation organized under the laws
of the State of Delaware ("Spectrum"), and SPECTRUM GLOBAL SERVICES, INC., a
corporation organized under the laws of the State of Delaware ("Global"), acting
as agent for the Purchasing Group (as hereinafter defined). Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to such
terms in the Stock Purchase Agreement.
WHEREAS, Spectrum has entered into a Stock Purchase Agreement,
dated as of the date hereof (the "Stock Purchase Agreement") with The Lori
Corporation, a corporation organized under the laws of the State of Delaware
("Lori"), Comforce Corp., a corporation organized under the laws of the State of
Delaware ("Purchaser"), ARTRA Group Incorporated, a corporation organized under
the laws of the State of Delaware ("ARTRA"), Peter R. Harvey ("Harvey"), Marc L.
Werner ("Werner"), James L. Paterek ("Paterek"), Michael Ferrentino
("Ferrentino"), and Christopher P. Franco ("Franco"), under which Spectrum
agrees to sell and Purchaser agrees to purchase all of the outstanding capital
stock of Global;
WHEREAS, in consideration for the mutual agreements and
covenants set forth in the Stock Purchase Agreement, the Purchasing Group
desires that Spectrum enter into this Agreement with Global not to engage in
certain activities during the period and on the terms and conditions set forth
below; and
WHEREAS, in consideration for mutual agreements and covenants
set forth in the Stock Purchase Agreement, Spectrum desires to obtain and the
Purchasing Group desires to give the Purchasing Group's agreement not to engage
in certain activities during the period and on the terms and conditions set
forth below;
NOW, THEREFORE, for good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Spectrum Covenant Not to Compete.
(a) From and after the Closing Date under the Stock Purchase
Agreement and until the date which is three and one-half (3.5) years after such
Closing Date, in accordance with Section 12.3 of the Stock Purchase Agreement,
Spectrum agrees not to engage in any aspect of the Business; provided, however,
that Spectrum, at its option, may provide services on a contract labor basis for
the purposes of performing consulting services and systems
<PAGE>
integration relating to the systems analysis, design, support, development
and/or implementation of solutions to clients in the fields of
telecommunications, computing and information technology, but only to the extent
such contract labor services are directly related to the project, engagement,
system or solution for which Seller's Systems Integration business was retained
by the client (the "Protected Business"). If the Closing does not occur under
the Stock Purchase Agreement for any reason, including, without limitation, if
the Stock Purchase Agreement is terminated pursuant to Section 10.1 thereof,
this Agreement shall terminate and be of no force or effect.
(b) Spectrum shall be deemed to be engaging in the Protected
Business if, and only if, it:
(i) engages in the Protected Business;
(ii) directly or indirectly, owns any Competitor (as
hereinafter defined); or
(iii) directly or indirectly, solicits any Person that
is a customer of Global as of the date hereof with a view to inducing such
customer to do business with Spectrum or any Competitor with respect to the
Protected Business.
(c) For purposes of this Section 1, the term "Competitor"
means any corporation, firm, partnership, proprietorship or other entity which
engages in the Protected Business.
2. Global and Purchasing Group Covenant Not to Compete.
(a) In accordance with Section 12.3 of the Stock Purchase
Agreement, Global and each member of the Purchasing Group agree not to engage in
any aspect of Spectrum's Business for a period of three and one-half (3.5) years
after the Closing Date, unless it first offers the opportunity to Seller of
substantially participating in a joint project or venture with respect to such
business.
(b) Global and each member of the Purchasing Group shall be
deemed to be engaging in Spectrum's Business (as hereinafter defined) if, and
only if, Global or such member:
(i) engages in Spectrum's Business;
(ii) directly or indirectly, owns any Competitor (as
hereinafter defined); or
<PAGE>
(iii) directly or indirectly, solicits any Person that
is a customer of Spectrum as of the date hereof with a view to inducing such
customer to do business with Global, any member of the Purchasing Group or any
Competitor with respect to Spectrum's Business.
(c) For the purposes of this Section 2:
(i) "Spectrum's Business" means the wireless data
communication software product business.
(ii) A "Competitor" is any corporation, firm,
partnership, proprietorship or other entity which engages in Spectrum's
Business.
3. Miscellaneous.
(a) All notices, requests and other communications required or
permitted to be given hereunder shall be in writing and shall be deemed given if
delivered personally (including by courier), given by prepaid telegram or mailed
first class, postage prepaid, registered or certified mail, addressed as
follows:
(i) If to Spectrum:
Spectrum Information Technologies, Inc.
2700 Westchester Avenue
Purchase, New York 10577
Attention: Mr. Donald J. Amoruso
Fax: (914) 251-1811
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza, Suite 4300
New York, New York 10006
Attention: Edwin B. Mishkin, Esq.
Fax: (212) 225-3999
(ii) If to the Purchasing Group:
Comforce Corp.
500 Central Avenue
Post Office Box 8902
Northfield, IL 60093-8902
Attention: Mr. Peter R. Harvey
<PAGE>
with a copy to:
Marc D. Freedman
Attorney At Law
70 Hilltop Road, Suite 2000
Ramsey, NJ 07446
Attention: Marc D. Freedman, Esq.
Fax: (201) 825-4505
Each of the foregoing shall be entitled to specify a different address
by giving notice as aforesaid to the others.
Whenever under the terms hereof the time for giving a notice or
performing an act falls upon a Saturday, Sunday, or holiday, such time shall be
extended to the next business day.
(b) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(c) This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators and other legal representatives. Neither this Agreement nor any
right or obligation hereunder may be assigned by either party hereto. Nothing in
this Agreement, expressed or implied, is intended to confer upon any other
person any rights or remedies under or by reason of this Agreement.
(d) This Agreement, and all matters relating hereto, shall be
governed by and construed and enforced in accordance with the laws of the State
of New York.
(e) No consent or waiver, expressed or implied, by any party
of any breach or default by any other in the performance by the other of its
obligations hereunder shall be deemed or construed to be a consent or waiver to
or of any other breach or default in the performance by such party of the same
or any obligations of the party. Failure on the part of any party to complain of
any act or failure to act of the other party or to declare the other party in
default, irrespective of how long such failure continues, shall not constitute a
waiver by that party of its rights under this Agreement or otherwise.
(f) No modification, amendment, waiver or discharge of this
Agreement shall bind any party unless in writing and signed by or on behalf of
such party.
(g) In the event any provision of this Agreement is found to
be void and unenforceable by a court of competent jurisdiction or arbitration
panel, the remaining provisions of this Agreement shall cease to be binding upon
the parties hereto.
<PAGE>
(h) The captions used herein are for reference purposes only,
and shall not in any way affect the meaning or interpretation of this Agreement.
(i) This Agreement, including the other documents referred to
herein, contains the entire understanding of the parties hereto with respect to
the subject matter contained herein and therein and supersedes all prior
agreements, correspondence, conversations, negotiations and understandings
between the parties with respect to such subject matter.
(j) As used in this Agreement, any gender includes a reference
to all other genders and the singular includes a reference to the plural and
vice versa.
(k) Any judicial proceeding brought against any of the parties
to this Agreement on any dispute arising out of this Agreement or any matter
related hereto shall be brought in the courts of the State of New York or in the
United States District Court for the Eastern District of New York (or the
Bankruptcy Court in that District), and, by execution and delivery of this
Agreement, each of the parties to this Agreement accepts for itself or himself
the process in any action or proceeding by the mailing of copies of such process
to such party at its or his address as set forth in 3(a), and irrevocably agrees
to be bound by any judgment rendered thereby in connection with this Agreement.
Each party hereto irrevocably waives to the fullest extent permitted by law any
objection that it or he may now or hereafter have to the laying of the venue of
any judicial proceeding brought in such courts and any claim that any such
judicial proceeding has been brought in an inconvenient forum. The foregoing
consent to jurisdiction shall not constitute general consent to service of
process in the State of New York for any purpose except as provided above and
shall not be deemed to confer rights on any person other than the respective
parties to this Agreement. EACH PARTY HERETO WAIVES TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING UNDER THIS AGREEMENT.
(l) Each party hereto intends that this Agreement shall not
benefit or create any right or cause of action in or on behalf of any person
other than the parties hereto and their respective successors and assigns as
permitted under 3(c).
<PAGE>
IN WITNESS WHEREOF, Spectrum and Lori have caused this
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the day and year first above written.
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By:
\ Name:
Title:
SPECTRUM GLOBAL SERVICES, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT R
FORM OF CONFIDENTIALITY AGREEMENT
Dear Sirs or Madams:
You have requested information from Spectrum Information
Technologies, Inc. (the "Seller") in connection with your consideration of a
possible transaction (a "Transaction") involving Spectrum Global Services, Inc.
(the "Company"). As a condition to our furnishing such information to you, we
are requiring that you agree, as set forth below, to treat confidentially such
information and any other information that the Seller, its agents or its
representatives (including attorneys and financial advisors) furnishes to you or
your designees (all of the foregoing collectively referred to as "your
Representatives"), whether furnished before or after the date of this letter,
and all analyses and studies, whether prepared by you or others, which contain
or otherwise reflect such information (collectively, the "Evaluation Material").
The term "Evaluation Material" does not include information
which (i) becomes generally available to the public other than as a result of a
disclosure by you or your Representatives, (ii) was available to you on a
non-confidential basis prior to its disclosure to you by the Seller, its
representatives or its agents, or (iii) becomes available to you on a
non-confidential basis from a source other than the Seller, its representatives
or its agents, provided that such source is not bound by a confidentiality
agreement with the Seller, its representatives or its agents or otherwise
prohibited from transmitting the information to you or your Representatives by a
contractual, legal or fiduciary obligation.
It is understood that you may disclose any of the Evaluation
Material to those of your Representatives who require such material for the
purpose of evaluating a possible Transaction (provided that such Representatives
shall be informed by you of the confidential nature of the Evaluation Material).
You agree that the Evaluation Material will be kept confidential by you and your
Representatives and, except with the specific prior written consent of the
Seller (or, in the event of a sale of the Company, of the Company) or as
expressly otherwise permitted by the terms hereof, will not be disclosed by you
or your Representatives. You further agree that you and your Representatives
will not use any of the Evaluation Material for any reason or purpose other than
to evaluate a possible Transaction.
In the event that you or any of your Representatives are
requested or required (by oral questions, interrogatories, requests for
information or documents, subpoena, Civil Investigative Demand or similar
process) to disclose any of the Evaluation Material, it is agreed that you or
such Representative, as the case may be, will provide the Seller and the Company
with prompt notice of such request(s) so that it may seek an appropriate
protective order or other appropriate remedy and/or waive your or such
Representative's compliance with the provisions of this Agreement. In the event
that such protective order or other remedy is not obtained, or that the Seller
(or, in the event of a sale of the Company, the Company)
<PAGE>
grants a waiver hereunder, you or such Representative may furnish that portion
(and only that portion) of the Evaluation Material which, in the written opinion
of your counsel, you are legally compelled to disclose and will exercise your
best efforts to obtain reliable assurance that confidential treatment will be
accorded any Evaluation Material so furnished.
Without the prior written consent of the Seller (or, in the
event of a sale of the Company, of the Company), (1) neither you nor those of
your Representatives who are aware of the Evaluation Material and/or the
possibility of a Transaction will initiate or cause to be initiated any
communications with any employee of the Company concerning the Evaluation
Material or any possible Transaction and (2) none of your directors, officers or
employees who are aware of the Evaluation Material and/or the possibility of a
Transaction will, for the one-year period from the date of this letter
agreement, solicit or cause to be solicited the employment of or hire any
employee of the Company.
You will promptly upon the written request of the Seller (or,
in the event of a sale of the Company, of the Company) deliver to the Seller or
the Company, as the case may be, all documents or other matter furnished by the
Seller or the Company or its agents or representatives to you or your
Representatives constituting Evaluation Material, together with all copies
thereof in the possession of you or your Representatives. In the event of such
request, all other documents or other matter constituting Evaluation Material in
the possession of you or your Representatives will be destroyed, with any such
destruction confirmed by you in writing to the Seller or the Company, as the
case may be.
Although you understand that the Seller and the Company have
endeavored to include in the Evaluation Material information known to them which
they believe to be relevant for the purpose of your investigation, you further
understand that neither the Seller, the Company nor their agents or their
representatives makes any representation or warranty as to the accuracy or
completeness of the Evaluation Material. You are advised that the Seller has
executed an agreement to sell the stock of the Company to a group of investors,
and such agreement (i) requires Bankruptcy Court approval and (ii) is subject to
receipt of "higher and better" offers for the Company's Stock. A hearing to
consider such agreement is scheduled for [ ], 1995. Moreover, you acknowledge
that James L. Paterek, Michael Ferrentino and Chris Franco are currently
employees of the Company or the Seller and, together with others, are
signatories to such agreement. You agree that neither the Seller, the Company
nor their agents or their representatives shall have any liability to you or any
of your Representatives resulting from the use of the Evaluation Material by you
or such Representatives. Only those representations and warranties that may be
made to you or your affiliates in a definitive written agreement for a
Transaction, when, as and if executed and subject to such limitations and
restrictions as may be specified therein, shall have any legal effect, and you
agree that if you determine to engage in a Transaction such determination will
be based solely on the terms of such written agreement and on your own
investigation, analysis and assessment of the business to be acquired. Moreover,
unless and until such a definitive written agreement is entered into, none of
the Seller, the Company or their agents,
<PAGE>
representatives or affiliates, or you or your Representatives will be under any
legal obligation of any kind whatsoever with respect to such a Transaction
except for the matters specifically agreed to in this Agreement. Without
limiting the generality of the foregoing, you specifically acknowledge and agree
that the Seller may conduct and change the process with respect to any possible
Transaction as it in its sole discretion shall determine, including, without
limitation, at any time terminating access to the Evaluation Material by you and
your Representatives without prior notice to you or any other person. The
agreements set forth in this Agreement may be modified or waived only by a
separate writing signed by the Seller, the Company and you expressly so
modifying or waiving such agreements.
You hereby agree to indemnify and hold harmless the Seller and
the Company from any damage, loss, cost or liability (including reasonable legal
fees) arising out of or resulting from any material breach by you or your
representatives of this Agreement. You also acknowledge that money damages would
be both incalculable and an insufficient remedy for any breach of this Agreement
by you or your Representatives and that any such breach would cause the Company
irreparable harm. Accordingly, you also agree that in the event of any breach or
threatened breach of this Agreement, the Company, in addition to any other
remedies at law or in equity it may have, shall be entitled, without the
requirement of posting a bond or other security, to equitable relief, including
injunctive relief and specific performance.
It is understood and agreed that no failure or delay by the
Seller or the Company in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of any
right, power or privilege hereunder. It is understood that this Agreement is for
the benefit of the Seller and the Company.
The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provisions of this letter agreement, which shall remain in full force and
effect.
You agree and consent to personal jurisdiction and service and
venue in any federal or state court within the State of New York (including the
United States Bankruptcy Court for the Eastern District of New York) having
subject matter jurisdiction, for the purposes of any action, suit or proceeding
arising out of or relating to this Agreement. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
<PAGE>
If you are in agreement with the foregoing, please sign and
return one copy of this letter, which thereupon will constitute our Agreement
with respect to the subject matter hereof.
Very truly yours,
SPECTRUM INFORMATION TECHNOLOGIES, INC.
By
Gordian Group, L.P.
on behalf of
Spectrum Information Technologies, Inc.
Confirmed and agreed to as of the date first above written:
[ ]
By
Title:
EXHIBIT 10.2
June 29, 1995
Mr. James L. Paterek Mr. Christopher P. Franco
86 South Drive 37 Lockwood Lane
Plandome, NY 11030 Riverside, Ct 06878
Mr. Michael Ferrentino
956 Cedar Swamp Road
Glen Head, NY 11545
Gentlemen:
This letter will confirm our offer of employment to each of you (the
"Managers"), and any other individuals you wish to hire, in the form of direct
employment or through a consulting arrangement, at your option, to become the
senior management team of The Lori Corporation ("Lori"). As you know, Lori is
currently a designer and distributor of fashion costume jewelry (the "Jewelry
Business"). If you accept our offer of employment, you and your team will devote
your full time to the business of Lori and will enter into and develop the
business of telecommunications and computer staffing (the "Staffing Business").
The Jewelry Business of Lori will be reorganized under a new wholly-owned
subsidiary of Lori, which subsidiary will be managed by the existing management
group of Lori. Thereafter, the Staffing Business will constitute the operation
of Lori and Lori will divest itself of the subsidiary containing the Jewelry
Business. Subject to post transaction Lori board approval, you will have full
business autonomy and discretion to develop such business through both internal
growth and by acquisition, and will have available requisite resources to
accomplish such growth more fully described in Attachment A hereto.
This offer of employment shall remain open until July 15, 1995, and shall be
further subject to those terms and conditions set forth in Attachment A hereto,
which is a part of this letter. If you agree to the terms and conditions set
forth herein and in Attachment A hereto, please so indicate by executing this
letter in the spaces provided below. Following acceptance of this letter, the
parties will conclude a formal agreement more fully covering the matters agreed
to herein. Notwithstanding the contemplated formal agreement, it is the
intention of the parties that this letter
<PAGE>
Paterek/Ferrentino
Page Two
June 29, 1995
agreement be binding on them. Lori acknowledges that the Managers will be taking
certain actions affecting their current employment in reliance of this letter
agreement. We look forward to a fruitful relationship.
Sincerely,
THE LORI CORPORATION
Peter R. Harvey
Director
ARTRA Guarantee
Lori is a subsidiary of ARTRA GROUP Incorporated ("ARTRA"). The agreements and
indemnities representations of Lori hereunder are acknowledged, confirmed and
guaranteed in full by ARTRA. ARTRA agrees that it shall cause Lori to fully
perform its covenants and agreements made herein, and will undertake any and all
actions necessary to cause Lori to perform such agreements or to make the
representations of Lori herein accurate and correct in all respects, including
but not limited to the advancement of funding to satisfy the liabilities of Lori
or adequately capitalize Lori in accordance with provisions hereof. ARTRA
further agrees to vote all its shares to achieve the objectives and obligations
contained herein including the election of the Managers' new Lori board of
directors.
All parties to this agreement agree that upon the latter of: (a) ARTRA GROUP's
divestiture of its Lori stock ownership; or (b) the divestiture by Lori of the
Jewelry Business, ARTRA GROUP's obligations under this agreement will terminate.
ARTRA GROUP INCORPORATED
By: ________________________________ ____________________
Peter R. Harvey Date
Its: ________________________________
<PAGE>
Paterek/Ferrentino
Page Three
June 29, 1995
MANAGERS:
Accepted and Agreed:
- --------------------------------- -----------------------
James L. Paterek Date
- --------------------------------- -----------------------
Michael Ferentino Date
- -------------------------------- -----------------------
Chris P. Franco Date
<PAGE>
ATTACHMENT A
1. Upon the commencement of the employment of Managers, which shall occur upon a
date designated by Managers following acceptance of this offer, Lori shall have
available for use exclusively in developing the Staff Business not less than
$500,000 (the "Cash Capital"). Within 90 days thereafter Lori shall have an
additional $500,000 cash available to the Staffing Business. Lori warrants and
represents that prior to the Managers' employment, Lori will be free and clear
of any liabilities except as expressly disclosed in writing to the Managers and
attached hereto. The obligations of the Jewelry Business will in no way impede
the profitability or financial condition of the Staffing Business.
2. Lori's capital structure shall be restructured so that in addition to shares
of common equity currently authorized and outstanding: (a) the Managers shall be
issued a number of common shares equal to twenty five percent (25%) of the total
outstanding shares of Lori, on a fully-diluted basis; (b) a number of additional
shares of common equity shall be authorized sufficient to fund, in part, the
acquisition and growth plans of Lori under the Managers; and (c) a number of
shares of common equity equal to not less than ten percent (10%) of all
outstanding common equity on a fully-diluted basis, shall be reserved for
issuance to management and employees of Lori, over a period of time, in the form
of stock options. In addition, in the event Managers are successful in acquiring
substantially all of the business of YIELD Global (as defined below), Managers
shall receive (i) a number of common shares equal to an additional ten percent
(10%) of outstanding Lori stock, on a fully-diluted basis, if the purchase price
for such acquisition is $4 million or less net (exclusive of cash, cash
equivalent and receivables), or (ii) a number of common shares equal to an
additional five percent (5%) of outstanding Lori stock on a fully diluted basis,
if the purchase price is greater than $4 million net (exclusive of cash, cash
equivalent and receivables) but $5 million or less.
3. Lori's board of directors shall be set at five (5) directors, four (4) of
whom shall be selected by the Managers. Upon acceptance by the Managers of this
offer, Lori agrees to nominate the four (4) directors of the Managers' choice
for the election to Lori's board.
4. Prior to the commencement of the employment of the Managers, Lori shall enter
into employment agreements with each of the Managers for a term of two (2)
years, on terms consistent with the employment agreements such individuals
currently have with their employer, including but not limited to: (a) all
indemnification benefits the Managers are entitled to receive under such prior
employment agreements; and (b) indemnification in full for any and all actions
brought against the Managers in whole or in part on account of their departure
from their previous employment and commencement of employment with Lori. Lori's
new board of directors shall have the authority to set reasonable compensation
and terms of employment for Lori's employees and management.
5. Lori shall obtain quotes on D & O insurance coverage for its directors and
corporate officers and retention of coverage will be left to the decision of the
newly constituted board of directors.
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6. Following the execution of this letter Lori shall offer the Jewelry Business
for sale. Upon the sale of the Jewelry Business, all proceeds received therefrom
shall be reinvested, under the Managers' direction, in the business of Lori. In
the event that less than $2 million cash is received from such sale, ARTRA shall
contribute an amount equal to such deficiency as additional capital to Lori,
which contribution shall not dilute the Managers' equity ownership position in
Lori (the "Managers' Equity"). Further, if such sale is not concluded on or
before December 31, 1995, ARTRA shall lend to Lori, $2 million cash to be
utilized as working capital of Lori. Such loan shall be repaid from the proceeds
of the sale of the Jewelry Business. Any portion of such loan unpaid on account
of a deficiency in the sale price received for the Jewelry Business shall be
forgiven by ARTRA and treated as a contribution to capital of Lori, which
contribution shall not dilute the Managers' Equity in Lori. Inclusive of the
Cash Capital and the proceeds from the sale of the Jewelry Business (together
the "Initial Capital"), Lori shall have not less than the equivalent of $5
million, raised either through the contribution to capital by ARTRA, issuance or
sale of Lori securities, senior debt financing, or the sale of the Jewelry
Business assets, for the purpose of pursuing acquisitions and growth of the
Staffing Business. The portion of such cash not comprised of the Initial Capital
(the "Additional Capital") obtained through private or public offerings of debt
or equity, or through some other financing, (provided such funding is available
upon terms reasonably acceptable to Managers) shall not dilute the Managers'
Equity. In the event that Lori is unable to obtain the Additional Capital on
terms reasonably acceptable to the Managers on or before December 31, 1995,
ARTRA shall lend to Lori, the deficiency of Additional Capital raised by Lori,
which loan shall be repaid at such time as such Additional Capital is obtained.
7. Lori acknowledges that if the Managers accept its offer of employment they
will direct an offer by Lori to acquire the business of Spectrum Global Services
Inc. (d/b/a "YIELD Global"). Notwithstanding anything contained herein to the
contrary, in the event Lori is unable to conclude the financing arrangements
described herein prior to such acquisition, ARTRA shall provide to Lori bridge
financing sufficient to: (a) provide a deposit, in an amount to be determined in
Managers' discretion for such acquisition; and (b) conclude such transaction as
soon as possible, all of which shall be repaid from the Initial Capital or
Additional Capital otherwise obtained in accordance with the provisions hereof.
Lori acknowledges and agrees that the Managers shall pursue developing the
Staffing Business if Lori fails to acquire YIELD Global and that the obligations
of Lori hereunder are not dependent on the acquisition of YIELD Global.
8. ARTRA agrees that upon commencement of employment of the Managers, ARTRA will
vote its Lori shares in favor of the Managers' nominees for the board. In
addition, such agreement shall provide: (a) Managers with the proxy of ARTRA
with respect to the election of directors, which shall be irrevocable except in
the case where ARTRA shall have conclusively demonstrated that any such Manager
has (i) exhibited gross or reckless disregard of Lori's business, or (ii)
engaged in intentional wrongful conduct with regard to Lori's business,
including but not limited to embezzlement or intentional wrong doing which shall
have caused material damage to Lori's assets; and (b) reciprocal buy-out
provisions to be agreed upon. The agreement for proxy shall terminate at such
time as the Lori shares held by ARTRA are "spun off" or otherwise disposed of
<PAGE>
to ARTRA shareholders, provided that no single ARTRA shareholder or any other
group of related shareholders holds directly, indirectly or beneficially more
than fifteen percent (15%) of Lori's outstanding capital stock following such
spin off.
9. Lori agrees to advance to, pay and/or reimburse Managers for all reasonable
legal and accounting fees and expenses incurred in connection with the Managers'
consideration and negotiation of employment arrangements with Lori.
10. Lori's and/or ARTRA's capital obligations per the terms of this agreement
shall not exceed $5 million total for the purpose of acquiring YIELD Global or
establishing a start up business previously referred to as the Staffing
Business.
FOR IMMEDIATE RELEASE
Contacts: COMFORCE/YIELD
Christopher P. Franco
(516) 352-3200
Lori Corporation
Robert S. Gruber
(212) 628-2554
LORI ANNOUNCES MAJOR TRANSFORMATION INTO
TELECOMMUNICATIONS AND COMPUTER STAFFING SERVICES;
ACQUISITION OF YIELD GLOBAL
Northfield, Illinois, September 11, 1995 - The Lori Corporation
(ASE:LRC) ("Lori") announced today that it had signed a stock purchase agreement
to acquire one hundred percent of the capital stock of Spectrum Global Services,
Inc. d/b/a YIELD Global ("YIELD"), a wholly owned subsidiary of Spectrum
Information Technologies, Inc. ("SIT"), for approximately $6 million. The
acquisition of YIELD is expected to be completed in the fourth quarter of 1995.
In addition, Lori plans to provide an incentive package to the YIELD management.
The completion of the acquisition is subject to approval of the bankruptcy court
in which SIT's chapter 11 petition is pending. YIELD had revenues of $9 million
for the fiscal year ended March 31, 1995 and, on a stand-alone basis before
corporate allocations, earned $920,000 for such period. YIELD provides
telecommunications and computer technical staffing services worldwide to Fortune
1000 companies and maintains an extensive, global database of technical
specialists, with an emphasis on wireless communications capability. Originally
founded in 1987 and sold to SIT in November 1993, YIELD was ranked one of the
fastest growing private companies in America by the INC. 500 for 1993 and 1994.
In connection with its new business direction, Lori intends to request
that its shareholders approve a change of its corporate name to COMFORCE
Corporation, which is more descriptive of the services the company will provide.
Following the acquisition of YIELD, the senior management of COMFORCE will be
comprised of Michael Ferrentino, as President, a founder and senior manager of
YIELD, and Christopher P. Franco, as Executive Vice President, an executive and
attorney with extensive corporate finance and securities experience. It is
expected that all of YIELD's current personnel will become employees of
COMFORCE. COMFORCE intends to announce additional key management positions at a
later date. James L. Paterek, former president of YIELD, will serve as a
consultant to COMFORCE.
The strategic vision of COMFORCE is to become the leading provider of
staffing solutions for the information superhighway, both domestically and
internationally, through internal growth as well as an aggressive program for
the acquisition of related businesses.
Lori is 62.6%-owned by ARTRA GROUP Incorporated (NYSE:ATA).
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