-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, W0Mpp+sIWYI+khHR0ojAB1YGX61Xd55ZIZGW+ldQJFzG6Rn0hGdVHlj7Dn2jXVmm cYvKPXRX7cMUgFkWP+JTug== 0000804731-03-000015.txt : 20030728 0000804731-03-000015.hdr.sgml : 20030728 20030725192819 ACCESSION NUMBER: 0000804731-03-000015 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20030630 ITEM INFORMATION: Acquisition or disposition of assets ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030728 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TENERA INC CENTRAL INDEX KEY: 0000804731 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-ENGINEERING SERVICES [8711] IRS NUMBER: 943213541 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-09812 FILM NUMBER: 03804462 BUSINESS ADDRESS: STREET 1: ONE MARKET, SPEAR TOWER STREET 2: SUITE 1850 CITY: SAN FRANCISCO STATE: CA ZIP: 94105-1018 BUSINESS PHONE: 4155364744 MAIL ADDRESS: STREET 1: ONE MARKET, SPEAR TOWER STREET 2: SUITE 1850 CITY: SAN FRANCISCO STATE: CA ZIP: 94105-1018 FORMER COMPANY: FORMER CONFORMED NAME: TENERA LP DATE OF NAME CHANGE: 19920703 8-K 1 form8k072503.txt DISPOSITION OF ASSETS JUNE 30, 2003 Page 1 of 3 UNITED STATES 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 June 30, 2003 Date of Report (date of earliest event reported) Commission File Number 1-9812 TENERA, INC. (Exact name of registrant as specified in its charter) Delaware 94-3213541 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 100 Bush Street, Suite 850, San Francisco, California 94104 (Address of principal executive offices) (Zip Code) (415) 445-3200 (Registrant's telephone number, including area code) (Former name or former address, if changed since last report) Page 2 of 3 Item 2. Acquisition or Disposition of Assets On June 30, 2003, TENERA Rocky Flats, LLC. ("Rocky Flats"), a wholly-owned subsidiary of TENERA, Inc. ("TENERA" or "the Company") approved the transfer (in exchange for a small amount of cash, assumption of certain of the joint venture management responsibilities and recruitment of remaining key personnel) of Rocky Flats' remaining contracted work scopes for the Department of Energy sites and its majority joint venture interest in Closure Mission Support Services, LLC ("CMSS") to The S.M. Stoller Corporation, a Colorado corporation and one of Rocky Flats' minority joint-venture partners in CMSS. The purchase price and other terms of the asset sale were determined in arms-length negotiations between the parties. The Asset Purchase Agreement entered into by and between Rocky Flats LLC and Stoller concerning the asset sale is attached hereto as Exhibit 2.1, and is incorporated herein by reference. The press release announcing the closing of the asset sale are attached hereto as Exhibit 99.1 and is incorporated herein by reference. Item 7. Financial Statements and Exhibits (b) Pro Forma Financial Information The unaudited pro forma financial information required by this item is attached hereto as Exhibit 99.2, and is incorporated herein by reference. (c) Exhibits The following Exhibits are filed as part of this report: Exhibit No. 2.1 Asset Purchase Agreement, dated as of June 30, 2003, by and between TENERA Rocky Flats, LLC and The S.M. Stoller Corporation. 99.1 Press Release, dated as of July 1, 2003, entitled "TENERA Announces Further Actions." 99.2 Unaudited Pro Forma Condensed Consolidated Financial Information. 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, thereunto duly authorized. TENERA, Inc. By: /s/ Jeffrey R. Hazarian --------------------------------- Jeffrey R. Hazarian Chief Executive Officer Date: July 25, 2003 Page 3 of 3 EXHIBIT INDEX Exhibit No. Description 2.1 Asset Purchase Agreement, dated as of June 30, 2003, by and between TENERA Rocky Flats, LLC and The S.M. Stoller Corporation. 99.1 Press Release, dated as of July 1, 2003, entitled "TENERA Announces Further Actions." 99.2 Unaudited Pro Forma Condensed Consolidated Financial Information. EX-2 3 ex21stollerassetpurchase.txt ASSET PURCHASE AGREEMENT JUNE 30, 2003 Exhibit 2.1 ASSET PURCHASE AGREEMENT between the S.M. STOLLER CORPORATION and Tenera ROCKY FLATS, LLC June 30, 2003 ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT (the "Agreement"), dated this ____ day of June, 2003, is made by and between The S.M. Stoller Corporation, a Colorado corporation ("Purchaser") and TENERA Rocky Flats, LLC, a Colorado limited liability company ("Seller"). RECITALS WHEREAS, the parties hereto desire to enter into this Agreement pursuant to which Purchaser will purchase certain of Seller's assets and assume obligations related thereto upon the terms and conditions set forth herein. NOW, THEREFORE, in consideration of the premises and the mutual promises, representations, warranties and covenants hereinafter set forth, the parties hereto agree as follows: Article 1 DEFINITIONS As used herein, the following terms shall have the following meanings: "Agreement" shall have the meaning set forth in the introductory paragraph. "Assets" shall have the meaning set forth in Section 2.1. "Assumed Liabilities" shall have the meaning set forth in Section 2.3(a) hereof. "Closing" shall mean the consummation of the transactions provided for in this Agreement as of the date hereof. "CMSS" shall mean Closure Mission Support Services, LLC, a Colorado limited liability company. "Excluded Assets" shall have the meaning set forth in Section 2.1 hereof. "Indemnitor" shall have the meaning set forth in Section 5.3(a) hereof. "Indemnitee" shall have the meaning set forth in Section 5.3(a) hereof. "Joint Venture Interests" shall have the meaning set forth in Section 2.1. "Member Agreement" shall mean the agreement between Seller, Purchaser, CMSS and all other members of CMSS, dated as of August 10, 2000, as amended. "Operating Agreement" shall mean the CMSS Operating Agreement, as amended. "Purchased Contracts" shall have the meaning set forth in Section 2.1. "Purchaser" shall have the meaning set forth in the introduction hereto. "Retained Liabilities" shall have the meaning set forth in Section 2.3(b) hereof. "Seller" shall have the meaning set forth in the introduction hereto. Article 2 PURCHASE 2.1 Purchase and Sale of Assets. (a) Purchaser and Seller agree that, upon the terms and subject to the conditions contained herein, and in reliance on the respective representations and warranties of the parties, Seller hereby sells, assigns, transfers, conveys and delivers to Purchaser, and Purchaser hereby purchases from Seller for the consideration specified in Section 2.2 of this Agreement, all of Seller's right, title and interest in (i) all contracts, subcontracts, purchase orders, instruments or other agreements listed on Schedule 2.1(a) attached hereto (the "Purchased Contracts") and (ii) its membership interests in CMSS as more particularly described on Schedule 2.1(a) attached hereto (the "Joint Venture Interests" and, together with the Purchased Contracts, the "Assets"). (b) Notwithstanding the foregoing, the Assets shall not include (a) any contracts listed on Schedule 2.1(b), (b) any other contracts or agreements of Seller (including any employee agreement or employee benefit plan) not listed on Schedule 2.1(a), or (c) any other assets of Seller not specifically described in Section 2.1(a) (collectively, the "Excluded Assets"). 2.2 Purchase Price. For and in consideration of the sale, transfer, conveyance, assignment and delivery of the Assets herein by Seller, Purchaser hereby assumes the liabilities arising from the Purchased Contracts and the Joint Venture Interests after the date hereof in accordance with this Agreement and shall pay Seller in cash at the Closing immediately upon execution hereof, Eight Thousand Dollars ($8,000.00). 2.3 Liabilities. Immediately following the Closing, Purchaser shall assume, perform and discharge as and when due all liabilities and obligations of Seller arising under the Purchased Contracts (the "Assumed Liabilities"), except as expressly provided otherwise herein. (a) In no event shall Purchaser become liable for any Retained Liabilities, as defined below. For purposes of this Agreement, "Retained Liabilities" shall include any liability or obligation of Seller not specifically assumed by Purchaser as set forth above, being of whatever nature or kind, and such shall be deemed Retained Liabilities regardless of whether any of the foregoing are presently or hereafter known, asserted or unasserted, suspected or unsuspected, fixed, contingent, matured or unmatured, and whether sounding in law, equity, contract, tort, statute or otherwise, all as though fully set forth herein. All customarily proratable items relating to the Purchased Contracts or the Joint Venture Interests payable subsequent to the date hereof and relating to a period of time both prior to and subsequent to the date hereof will be prorated as of the close of business on the day before the date hereof between Purchaser and Seller. 2.4 Employees. 2 (a) Seller agrees to use its best efforts to assist Purchaser to cause certain of the employees and consultants of Seller, designated by Purchaser, to be hired by Purchaser after Closing. Seller covenants not to offer such employees, at any time after Closing, alternative employment without the prior written consent of Purchaser. Purchaser shall have no obligation to hire any employees or consultants of Seller, whether so designated or otherwise. (b) As to any such employee designated by Purchaser prior to or as of the date hereof who is employed by Purchaser after the Closing, Seller hereby releases such employee as of the date hereof from any contractual provision with Seller or any affiliate of Seller under Seller's control, which would impair the utility of such employee's services to Purchaser or which would impose upon such employee any monetary or other obligation to Seller which otherwise would be occasioned by the termination of such employee's employment including, without limitation, any agreements of noncompetition or confidentiality relating to Seller. 2.5 Assignment. (a) This Agreement constitutes the assignment of all Assets by Seller and an assumption of the Assumed Liabilities by Purchaser; provided that, this Agreement shall not constitute an assignment or assumption, or an attempted assignment or an attempted assumption, of any Asset until the assignment of such Asset has been consented to or approved by the applicable department or division of the United States Federal Government, any other party to a Purchased Contract, any member of CMSS other than Seller, or any other person or entity required by law or contract to provide such consent or approval. (b) The parties understand and agree that it will be necessary for Seller to obtain consent or approval of the United States Federal Government to assign and novate certain of the Purchased Contracts, and that said novation may occur at a date subsequent to the effective date of this Agreement. For any of the Purchased Contracts not novated as of the date hereof, Seller agrees to subcontract with Purchaser for the performance of such Purchased Contracts at the same price (with zero mark-up) until the novation is completed. (c) With respect to any Purchased Contract the assignment of which requires the consent or approval of the U.S. Federal Government, as soon as practicable, Purchaser shall prepare (with Seller's assistance), in accordance with Federal Acquisition Regulation ("FAR") Part 42, section 42.12, and any applicable agency regulations or policies, a written request ("Request") to the Responsible Contracting Officer(s). The Request shall be submitted by Seller to the Responsible Contracting Officer(s) for the U.S. Government to (i) recognize Purchaser as Seller's successor-in-interest to all of the Government Contracts, and (ii) to enter into a novation agreement substantially in the form set forth in FAR 42.1204 (the "Novation Agreement"), pursuant to which, subject to FAR Part 42, all of Seller's rights, title and interest in and to, and all of Seller's obligations and liabilities under, each Purchased Contract shall be validly conveyed, transferred and assigned and novated to Purchaser by all parties thereto. Purchaser shall provide to Seller any information regarding Purchaser required in connection with such Request. Seller and Purchaser shall each use their best efforts to obtain all consents, approvals and waivers required for the purpose of processing, entering into and completing any Novation Agreement, including responding to any requests for information by the U.S. Government with regard to such Novation Agreement. 3 (d) With respect to any Asset which requires, whether by law or by contract, the consent or approval or any person or entity other than the U.S. Federal Government, Purchaser shall use its best efforts to obtain all such consents or approvals and shall cause to be prepared, and approved by Purchaser's counsel, all documents and instruments necessary or advisable to effect the transfers and assignments contemplated by this Agreement. (e) Any payments pursuant to such Purchased Contracts received by Seller for work performed after the date hereof shall be remitted to Purchaser. Any payments pursuant to such Purchased Contracts received by Purchaser for work performed prior to the date hereof shall be remitted to Seller. Article 3 REPRESENTATIONS AND WARRANTIES OF THE SELLER The Seller represents and warrants to Purchaser as follows: 3.1 Organization and Standing. Seller is a limited liability company duly organized, validly existing and in good standing under the laws of the state of Colorado and has the full power and authority to carry on its business in places in which it is now being conducted. 3.2 Authority and Status. Seller has the power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby without the necessity of any act or consent of any other person whomsoever. The execution, delivery and performance by Seller of this Agreement and each agreement, document and instrument provided for herein has been duly authorized and approved by the necessary limited liability action. This Agreement and each and every agreement, document and instrument to be executed, delivered and performed by Seller in connection herewith, constitutes the valid and legally binding obligations of Seller, enforceable against it in accordance with their respective terms. 3.3 Agreement Does Not Violate Other Instruments. The execution and delivery of this Agreement by Seller does not, and the consummation of the transactions contemplated hereby will not, violate any provision of its charter documents, as amended; or violate or constitute an occurrence of default under any provision of, or conflict with, or result in acceleration of any obligation under, or give rise to a right by any party to terminate its obligations under, any Purchased Contract. 3.4 Purchased Contracts. Seller has delivered or made available to Purchaser true, complete and correct copies of all Purchased Contracts. Each Purchased Contract assigned to Purchaser hereunder is in full force and effect and is valid, binding and enforceable in accordance with its terms against Seller. No party to any Purchased Contract or any agreement included in the Joint Venture Interests or any successor or assignee thereof, is in default of any material provision thereof and there exists no event or condition which does or would, by itself, or with the giving of notice or the passage of time or both, constitute a breach of or default of any material provision under any Purchased Contract or result in the acceleration of any obligation thereunder. 4 3.5 Joint Venture Interests. (a) Seller's Joint Venture Interests being transferred hereby are equal to eighty percent (80%) of the ownership interests in CMSS. Such Joint Venture Interests are duly authorized and validly issued and outstanding, fully paid and nonassessable. Except for the owners of membership interests in CMSS identified by Seller to Purchaser, there are no other owners of interests in CMSS. The Joint Venture Interests have not been issued in violation of, and are not subject to, any purchase option, call, right of first refusal, preemptive, subscription or similar rights under any provision of applicable law, rulings, orders, contract, agreement or instrument to which CMSS or Seller is subject, bound, a party or otherwise. There are no outstanding warrants, options, rights, "phantom" membership rights, agreements, convertible or exchangeable securities or other commitments (other than this Agreement) pursuant to which CMSS or Seller is or may become obligated to issue, sell, purchase, return or redeem any membership interests or other interests of CMSS. There are no outstanding bonds, debentures, notes or other indebtedness having the right to vote on any matters on which members of CMSS may vote. (b) Upon Seller's receipt of the purchase price described in Section 2.2, good and valid title to the Joint Venture Interests shall pass to Purchaser, free and clear of any liens, claims encumbrances, security interests, options, charges and restrictions of any kind. Other than this Agreement, the Member Agreement and the Operating Agreement, the Joint Venture Interests will not be, as of the Closing, subject to any voting trust agreement or other contract, agreement, arrangement, commitment or understanding restricting or otherwise relating to the Joint Venture Interest. 3.6 Liabilities. There are no suits, actions, proceedings, claims, judgments, or investigations pending or threatened against CMSS or affecting the Joint Venture Interests or the assets of CMSS, and there exists no basis or grounds for any such suit, action, proceedings, claim, judgment, or investigation. Except as otherwise disclosed to Seller, CMSS has no liability or obligation (whether accrued, absolute, contingent, unliquidated or otherwise). No liability disclosed to Seller, singly or in the aggregate, would have a material adverse effect on the Joint Venture Interests, the assets of CMSS, or the right of Seller to consummate the transactions contemplated hereby. 3.7 Schedules. All Schedules attached hereto are true, correct and complete as of the signing of this Agreement. 3.8 Full Disclosure. None of the representations and warranties made in this Agreement, the Schedules hereto or any document, instrument, written statement or other information furnished by or on behalf of Seller in connection with the negotiations and transactions set forth herein, contains any untrue statement of a material fact or omits a material fact necessary to make the statements contained therein or herein not misleading. 5 Article 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER Purchaser represents and warrants to Seller as follows: 4.1 Organization and Standing. Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the state of Colorado and has the full power and authority (corporate and otherwise) to carry on its business in places in which it is now being conducted. 4.2 Authority and Status. Purchaser has the power and authority to execute and deliver this Agreement, to perform its obligations hereunder, and to consummate the transactions contemplated hereby without the necessity of any act or consent of any other person whomsoever. The execution, delivery and performance by Purchaser of this Agreement and each agreement, document and instrument provided for herein, have been duly authorized and approved by its directors. This Agreement and each and every agreement, document and instrument to be executed, delivered and performed by Purchaser in connection herewith, constitutes the valid and legally binding obligations of Purchaser, enforceable against it in accordance with their respective terms. 4.3 Agreement Does Not Violate Other Instruments. The execution and delivery of this Agreement by Purchaser does not, and the consummation of the transactions contemplated hereby will not, violate any provision of the Articles of Incorporation, as amended, or Bylaws, as amended, of Purchaser. Article 5 COVENANTS, INDEMNIFICATION AND UNDERTAKINGS 5.1 Seller's Indemnification. Seller shall protect, defend, indemnify and hold harmless Purchaser and its partners, employees, successors and assigns from and against any losses, damages and expenses (including, without limitation, reasonable counsel fees, costs and expenses incurred in investigating and defending against the assertion of such liabilities) which may be sustained, suffered or incurred by Purchaser or its partners, employees, successors and assigns and which (a) relate to any breach by Seller of its representations, warranties or covenants in this Agreement, or (b) arise out of the failure of Purchaser to satisfy any of the Retained Liabilities. 5.2 Purchaser's Indemnification. Purchaser shall protect, defend, indemnify and hold harmless Seller and its partners, employees, successors and assigns from and against any losses, damages and expenses (including, without limitation, reasonable counsel fees, costs and expenses incurred in investigating and defending against the assertion of such liabilities) which may be sustained, suffered or incurred by Seller or its partners, employees, and assigns and which (a) relate to any breach by Purchaser of its representations, warranties or covenants in this Agreement or (b) arise out of the failure of Purchaser to satisfy any of the Assumed Liabilities. 5.3 Notice of Indemnification. 6 (a) If any action, suit or proceeding shall be commenced, or any claim or demand shall be asserted, in respect of which a party entitled to indemnification pursuant to this Agreement (the "Indemnitee") demands indemnification under this Article, the party from which such indemnification is demanded under this Article (the "Indemnitor") shall be notified to that effect with reasonable promptness and shall have the right to assume the entire control of (including the selection of counsel), subject to the right of the Indemnitee to participate (with counsel of Indemnitee's choice) in the defense, compromise or settlement thereof. Failure of Indemnitee to give such notice to Indemnitor shall not relieve Indemnitor from any obligation under this Article unless such failure prejudices the defense of the action or proceeding by Indemnitor. (b) The Indemnitee shall cooperate fully in all respects with the Indemnitor in any such defense, compromise or settlement, including, without limitation, by making available all pertinent information under its control to the Indemnitor. The Indemnitor will not compromise or settle any such action, suit, proceeding, claim or demand without the prior written consent of the Indemnitee; provided, however, that in the event such consent is withheld, then the liabilities of the Indemnitor shall be limited to the total sum representing the amount of the proposed compromise or settlement and the amount of counsel fees accumulated at the time such consent is withheld. 5.4 Cooperation. Seller and Purchaser shall cooperate fully with each other after the Closing with respect to any claims, demands, tax or other audits, suits, actions and proceedings by or against Seller or Purchaser, as the case may be, in respect of the Purchased Contracts or the liabilities related thereto, whether or not Assumed Liabilities and whether or not either party has notified the other of a claim for indemnity with respect to such matter. 5.5 Deliveries at Closing. (a) Seller's Deliveries. Simultaneously with the execution of this Agreement, Seller shall deliver to Purchaser (1) the Joint Venture Interests, (2) copies of any Purchased Contract not previously provided to Purchaser, (3) satisfactory evidence of any necessary approval to the transactions contemplated hereunder by any regulatory authorities, any party to any Purchased Contracts, any member of CMSS, or any other required party and (4) such other evidence of the performance of all covenants and satisfaction of all conditions required of Seller by this Agreement, at or prior to the Closing, as Purchaser or its counsel may reasonably require. (b) Purchaser's Deliveries. Simultaneously with the execution of this Agreement, Purchaser shall deliver to Seller (1) the purchase price described in Section 2.2, and (2) such other evidence of the performance of all covenants and satisfaction of all conditions required of Purchaser by this Agreement, at or prior to the Closing, as Seller or its counsel may reasonably require. 7 Article 6 GENERAL PROVISIONS 6.1 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be delivered by hand, telecopy, overnight delivery service or mailed by registered, certified mail or electronic mail with acknowledgement of receipt requested, addressed as follows: (a) If to Seller to: TENERA, Inc. 100 Bush Street, Suite 850 San Francisco, CA 94104 Attn: Chief Executive Officer Fax: 415.445.3250 Email: jhazarian@tenera.com with a copy to: Tom Loo, Esq. Greenberg Traurig LLP 2450 Colorado Ave, Suite 400E Santa Monica, CA 90404 Fax: 310. 586.7800 Email: loot@gtlaw.com (b) If to the Purchaser to: The S.M. Stoller Corporation 990 S. Public Road, Suite A Lafayette, Colorado 80026 Attn: Joseph W. Gordon Fax: 303.443.1408 Email: jgordon@stoller.com with a copy to: Sonnenschein Nath & Rosenthal 1301 K St., N.W., Suite 600, East Tower Washington, D.C. 20005 Attn: Joseph P. Hornyak Fax: 202.408.6399 Email: jhornyak@sonnenschein.com (c) If delivered personally or by telecopier, the date on which a notice, request, instruction or document is delivered shall be 8 the date on which such delivery is made and, if delivered by mail, electronic mail or overnight service, the date on which such notice, request, instruction or document is received shall be the date of delivery. 6.2 Further Assurances. Each party covenants that at any time, and from time to time, after the Closing, it will execute such additional instruments and take such actions as may be reasonably requested by the other party to confirm or perfect or otherwise to carry out the intent and purposes of this Agreement. 6.3 Waiver. Any failure on the part of any party hereto to comply with any of its obligations, agreements or conditions hereunder may be waived by any other party to whom such compliance is owed. No waiver of any provision of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. 6.4 Expenses. Except as expressly set forth herein, all expenses incurred by the parties hereto in connection with or related to the authorization, preparation and execution of this Agreement and the Closing of the transactions contemplated hereby, including, without limitation of the generality of the foregoing, all costs or fees incurred by Seller in connection with the novation or transfer of any Purchased Contract, if any, and any fees and expenses of agents, representatives, counsel and accountants employed by any such party, shall be borne solely and entirely by the party which has incurred the same. 6.5 Survival of Representations and Warranties. All representations and warranties made by Seller or Purchaser in this Agreement or in any document or instrument executed and delivered pursuant hereto are material, have been relied upon by the other party, shall survive the Closing and shall not merge in the performance of any obligation by any party hereto. All representations and warranties shall survive the Closing for twelve (12) months from the date hereof. 6.6 Binding Effect; Third Party Beneficiaries; Assignment. This Agreement shall be binding upon and inure to the benefits of the parties hereto and their respective legal representatives, executors, administrators, successors and assigns. Nothing in this Agreement shall be construed to create any rights in any other persons or entities as third party beneficiaries or otherwise. This Agreement shall not be assigned by any party without the prior written consent of the other party. 6.7 Headings. The section and other headings in this Agreement are inserted solely as a matter of convenience and for reference, and are not a part of this Agreement. 6.8 Entire Agreement; Changes in Writing. This Agreement constitutes the entire agreement among the parties hereto and supersedes and cancels any prior agreements, representations, warranties, or communications, whether oral or written, among the parties hereto relating to the transactions contemplated hereby or the subject matter herein. Neither this Agreement nor any provision hereof may be changed, waived, discharged or terminated orally, but only by an agreement in writing signed by the party against whom or which the enforcement of such change, waiver, discharge or termination is sought. 9 6.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Colorado without regard to the conflict of laws provisions thereof. 6.10 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 6.11 Schedules and Exhibits Incorporated. All Schedules and Exhibits attached hereto are incorporated herein by reference.IN WITNESS WHEREOF, each party hereto has caused this Asset Purchase Agreement to be executed on their behalf as of the date first above written. SELLER: TENERA ROCKY FLATS, LLC ____________________________________________ Name: Title: PURCHASER: THE S.M. STOLLER CORPORATION ____________________________________________ Name: Title: 10 EX-99 4 pressreleasejuly12003.txt PRESS RELEASE JULY 1, 2003 Page 1 of 2 Exhibit 99.1 [OBJECT OMITTED] TENERA, Inc. 100 Bush Street, Suite 850 San Francisco, CA 94104 TENERA Announces Further Actions For Immediate Release Tuesday, July 1, 2003 Contact: Jeffrey Hazarian, Chief Executive Officer James Robison, Controller and Treasurer (415) 445-3200 SAN FRANCISCO, CALIFORNIA-- As previously announced, TENERA, Inc. (AMEX: TNR; the "Company") has undertaken efforts to either sell or dispose of its operating segments as quickly as possible this year or permit its operating units to dispose of their assets. The Company then reported the dispositions of the operating assets by two of its operating subsidiaries, TENERA Energy, LLC, and GoTrain Corp, and that it was reviewing various disposition alternatives involving its last remaining subsidiary, TENERA Rocky Flats, LLC. Today, in furtherance of this program, the Company announced that TENERA Rocky Flats, LLC approved the transfer (in exchange for a small amount of cash, assumption of certain of the joint venture management responsibilities and recruitment of remaining key personnel) of TENERA Rocky Flats, LLC's remaining contracted work scopes for the Department of Energy sites to The S.M. Stoller Corporation, a Colorado corporation and one of the Company's joint-venture partners for the Rocky Flats Site contract. Management continues to anticipate that the cash resources of the Company and its subsidiaries, although increased by the net proceeds of these sales, will be substantially used to fund acquisition escrow requirements and complete course work obligations associated with the GoTrain Corp. sale, retire the Company's and Go-Train's indebtedness, applied toward the obligations of the Company's other creditors, and offset costs associated with the disposition plan underway. The Company presently is examining the best alternatives for any available cash after all of its present and future obligations are determined, including a wind-down of its operations. However, we cannot predict the amount of cash, if any, that will be available for distribution to TENERA's shareholders should a wind-down be effected. Also previously announced, the American Stock Exchange ("AMEX") had notified the Company that it does not meet certain of the Exchange's continued listing standards. The Company has now submitted a response acknowledging the notification and that it is conducting a review of the alternatives available to the Company. There can be no assurance however that the Company will be able to present a plan that will meet the continued AMEX listing standards, or if it does not, will be able to provide an alterative market for its outstanding shares. Statements contained in this press release which are not historical facts are forward-looking statements as that term is defined in the Private Securities Litigation Reform Act of 1995. Such forward-looking statements are subject to risks and uncertainties that could cause actual results to differ materially from those projected. Such risks and uncertainties include plan to Page 2 of 2 dispose of operating segments, economic slowdown, uncertainty of access to capital, reliance on major customers, history of losses, uncertainty of future profitability, competition, reliance on key personnel, uncertainty regarding industry trends and customer demand, and risk of government contracts audits. Additional risks are detailed in the Company's filings with the Securities and Exchange Commission, including its most recent Form 10-K filed on April 15, 2003. ### EX-99 5 proformafinancialinfo.txt UNAUDITED PRO FORMA FINANCIAL INFORMATION Page 1 of 6 Exhibit 99.2 Unaudited Pro Forma Condensed Consolidated Financial Statements The following unaudited pro forma condensed consolidated financial statements, including the notes thereto, are qualified in their entirety by reference to, and should be read in conjunction with the historical consolidated financial statements and notes thereto of TENERA, Inc. ("the Company") included in the Company's Annual Report on Form 10-K filed with the Securities and Exchange Commission (the "Commission") April 15, 2003, and the Company's March 31, 2003 unaudited quarterly consolidated financial statements included on the Company's Quarterly Report on Form 10-Q filed with the Commission May 14, 2003. The unaudited pro forma condensed consolidated financial statements have been prepared to give effect to the sale of substantially all of the contracts of the Company's wholly-owned subsidiary, TENERA Rocky Flats, LLC ("Rocky Flats") and its majority joint venture interest in Closure Mission Support Services, LLC, relating to its Professional and Technical Services - government clients business (the "Sale") as of and for the periods presented. The unaudited pro forma condensed financial statements have also been prepared to give cumulative effect to the previously announced sales of the Company's other two wholly-owned subsidiaries, TENERA Energy, LLC ("Energy") and GoTrain Corp. ("GoTrain"), which transactions were also completed within first six months of 2003 (the "Cumulative Sale"). The Company previously reported the effect of the GoTrain business sale on its Form 8K filed June 19, 2003. Although previously announced by the Company, it has not previously shown the effect of the Energy business sale because the single transaction involved assets and revenue that did not meet the minimum threshold for submission of a Form 8K. The Energy business sale is included in the Cumulative Sale presentation herewith due to the proximity of the transaction within the disposition of the Company's operating subsidiaries in 2003. The unaudited pro forma condensed consolidated balance sheet shows the Company's condensed consolidated balance sheet as of March 31, 2003, giving effect to the Sale and Cumulative Sale as if they had occurred on March 31, 2003. The unaudited pro forma condensed consolidated statements of operations show the Company's historical results for the year ended December 31, 2002, and the three months ended March 31, 2003, giving effect to the Sale and Cumulative Sale as if they had occurred at January 1, 2002 and 2003, respectively. The unaudited pro forma condensed consolidated information is presented for illustrative purposes only and is not necessarily indicative of the operating results or financial position that would have occurred if the Sale and Cumulative Sale had been consummated at the beginning of the earliest period presented, nor is it necessarily indicative of future operating results or financial position. The pro forma adjustments are based upon information and assumption available at the time of the filing of this report. Page 2 of 6 TENERA, INC. UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET MARCH 31, 2003 (In thousands, except share amounts)
------------------------------------------- Pro Forma Adjustments - ------------------------------------------------------------------------------------------------------------------------------- As Reported Rocky Flats GoTrain Pro Forma Adjusted - ------------------------------------------------------------------------------------------------------------------------------- ASSETS Current Assets Cash and cash equivalents ................... $ 427 $ (25) a $ 3,053 b $ 3,455 Trade receivables, less allowance of $539 at Mar 31, 2003 and Dec 31, 2002 Billed .................................... 489 5 a (122) b 372 Unbilled .................................. 812 (484) a (67) b 261 Other current assets ........................ 228 -- (48) b 180 ---------------- ----------------- --- ----------------- --- ----------------- Total Current Assets .................... 1,956 (504) 2,816 4,268 Property and Equipment, Net ................... 152 -- (123) b 29 Other Assets .................................. 473 -- (436) b 37 ---------------- ----------------- --- ----------------- --- ----------------- Total Assets ......................... $ 2,581 $ (504) $ 2,257 $ 4,334 ================ ================= === ================= === ================= LIABILITIES AND STOCKHOLDERS' DEFICIT Current Liabilities Accounts payable ............................ $ 1,316 $ (487) a $ (452) b $ 377 Accrued compensation and related expenses ... 1,195 -- -- 1,195 Deferred revenue ............................ 394 -- (394) b -- Subordinated debt and accrued interest ...... 1,635 -- (1,635) b -- Subordinated debt and accrued interest payable to related party....................... 85 -- -- 85 ---------------- ----------------- --- ----------------- --- ----------------- Total Current Liabilities ............... 4,625 (487) (2,481) 1,657 Stockholders' Deficit Common Stock, $0.01 par value, 25,000,000 authorized, 10,417,345 issued, and 9,984,259 outstanding at Mar 31, 2003 and Dec 31, 2002. 104 -- -- 104 Paid in capital, in excess of par ........... 5,697 -- -- 5,697 Accumulated (deficit) earnings............... (7,352) (17) a 4,738 b (2,631) Treasury stock-- 433,086 shares at Mar 31, 2003 and Dec 31, 2002 ..................... (493) -- -- (493) ---------------- ----------------- --- ----------------- --- ----------------- Total Stockholders' (Deficit) Equity .... (2,044) (17) 4,738 (2,677) ---------------- ----------------- --- ----------------- --- ----------------- Total Liabilities and Stockholders' Deficit $ 2,581 $ (504) $ 2,257 $ 4,334 ================ ================= === ================= === ================= =============================================================================================================================== See accompanying notes.
Page 3 of 6 TENERA, INC. UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS FOR THE THREE MONTH PERIOD ENDED MARCH 31, 2003 (In thousands, except per share amounts)
----------------------------------- Pro Forma Adjustments - ---------------------------------------------------------------------------------------------------------------------------- As reported Rocky Flats GoTrain and Pro Forma Energy Adjusted - ------------------------------------------------------ --------------- -------------- --- ---------------- -- -------------- Revenue ............................................. $ 2,631 $ (1,799) c $ (832) d $ -- Direct Costs ........................................ 2,232 (1,617) c (600) d 15 General and Administrative Expenses ................. 1,486 (216) c (846) d 424 Other Expense ....................................... -- -- -- -- --------------- -------------- --- ---------------- -- -------------- Operating Loss .................................... (1,087) 34 614 (439) Interest (Expense) Income, net ...................... (30) 35 e 5 --------------- -------------- --- ---------------- -- -------------- Net Loss Before Income Tax Expense................. (1,117) 34 649 (434) Income Tax Expense .................................. 6 -- -- 6 --------------- -------------- --- ---------------- -- -------------- Net Loss ............................................ $ (1,123) $ 34 $ 649 $ (440) =============== ============== === ================ == ============== Net Loss per Share-- Basic .......................... $ (0.11) $ (0.04) =============== ============== Net Loss per Share-- Diluted ........................ $ (0.11) $ (0.04) =============== ============== Weighted Average Number of Shares Outstanding-- Basic ............................................... 9,984 9,984 =============== Weighted Average Number of Shares Outstanding-- Diluted ............................................. 9,984 9,984 =============== ============== ============================================================================================================================ See accompanying notes.
Page 4 of 6 TENERA, INC. UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2002 (In thousands, except per share amounts)
Pro Forma Adjustments - -------------------------------------------------------------------------------------------------------------------------- As reported Rocky Flats GoTrain Pro Forma and Energy Adjusted - -------------------------------------------------------------------------------------------------------------------------- Revenue ............................................. $ 13,823 $ (9,808) c $ (4,01d) $ -- Direct Costs ........................................ 12,388 (9,121) c (3,548) d (281) General and Administrative Expenses ................. 5,953 (449) c (2,810) d 2,694 Impairment Loss ..................................... 350 -- -- 350 Other Expense........................................ (2) -- -- (2) --------------- -------------- --- ------------ ---- -------------- Operating Loss.................................... (4,870) (238) 2,343 (2,765) Interest (Expense) Income, net ...................... (92) -- 104 e 12 --------------- -------------- --- ------------ ---- -------------- Net Loss Before Income Tax (Benefit) Expense .... (4,962) (238) 2,447 (2,753) Income Tax (Benefit) Expense ........................ (156) -- -- (156) --------------- -------------- --- ------------ ---- -------------- Net (Loss) Earnings ................................. $ (4,806) $ (238) $ 2,447 $ (2,597) =============== ============== === ============ ==== ============== Net (Loss) Earnings per Share-- Basic ............... $ (0.48) $ (0.26) =============== ============== Net (Loss) Earnings per Share-- Diluted ............. $ (0.48) $ (0.26) =============== ============== Weighted Average Number of Shares Outstanding-- Basic 9,984 9,984 =============== ============== Weighted Average Number of Shares Outstanding-- Diluted.............................................. 9,984 9,984 =============== ============== See accompanying notes.
Page 5 of 6 TENERA, INC. NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS 1. BASIS OF PRO FORMA PRESENTATION Rocky Flats Adjustments Effective June 30, 2003, the Company's wholly-owned subsidiary, TENERA Rocky Flats, LLC ("Rocky Flats") closed the transfer to The S.M. Stoller Corporation, of substantially all of the work scope remaining on its client contracts and all of its joint venture interest in the related joint venture, Closure Mission Support Service, LLC ("CMSS"), established to manage the work scope for Rocky Flats LLC's work scope at the Department of Energy's Rocky Flats Site, in exchange for $8,000 and the assumption of certain of the joint venture management responsibilities and recruitment of remaining key personnel of Rocky Flats LLC . The Company uses the liability method to account for income taxes. Under this method, deferred tax assets and liabilities are determined based on differences between financial reporting and tax bases of assets and liabilities. Deferred tax assets and liabilities are measured using enacted tax rates and laws that will be in effect when the differences are expected to reverse. The Company does not expect to recognize a net gain on the sale of assets on the Company's consolidated tax returns and no additional provision for income tax is shown. The disposition of these assets resulted in a book loss of $2,000 after taxes in June 2003. If the disposition had occurred on March 31, 2003, or on December 31, 2002, it would have resulted in a book loss of $2,000 after taxes The assets related to the government services business consisted of the work scope remaining on client contracts, and the 80% joint venture interest in CMSS which assets and liabilities (cash, receivables and accounts payable) had been reported on a consolidated basis on the Rocky Flats financial statements. GoTrain and Energy Adjustments Effective June 4, 2003, the Company's wholly-owned subsidiary, GoTrain Corp. ("GoTrain") closed the sale to SkillSoft Corporation, of all of the assets and intellectual property rights relating to GoTrain's e-Learning business, for a sales price of $5.0 million net of approximately $0.2 million in expenses relating to the sale. The effects of the GoTrain sale have been previously shown on the Form 8K filed by the Company on June 19, 2003. Effective March 31, 2003, the Company closed the sale of the ownership and operations of TENERA Energy, LLC ("Energy"), part of the Professional and Technical Services segment, to the former employees of that subsidiary. This transfer has been achieved through the assumption of certain liabilities by the new owners, for which the Company would otherwise be obligated. The Company retained certain receivables. The transaction was reported in the Company's March 31, 2003 unaudited quarterly consolidated financial statements included on the Company's Quarterly Report on Form 10-Q filed with the Commission May 14, 2003. Therefore, no adjustments for the Energy sale transaction are necessary on the unaudited pro forma condensed consolidated balance sheet as of March 31, 2003, GoTrain and Energy Adjustments are reflected in order to show the impact of the Cumulative Sale on the unaudited pro forma statements. 2. PRO FORMA ADJUSTMENTS a) To reflect the net proceeds and expenses of the Sale relating to Rocky Flats, and the disposition of the assets as if the sale of the Rocky Flats business had occurred March 31, 2003. No additional provision for income tax is shown because the Company does not expect to recognize a net consolidated tax gain. b) In order to show the Cumulative Sale impact, the adjustments made to reflect the net proceeds and expenses of the sale of the assets of GoTrain, and the disposition of the assets as if the sale of the GoTrain business had occurred March 31, 2003. No adjustments are necessary to reflect the impact of the sale of the Energy business because the entries were already included in the Reported Results for the quarter ended March 31, 2002. No additional provision for income tax is shown because the Company does not expect to recognize a net consolidated tax gain from the sale of the GoTrain business. Page 6 of 6 c) To reflect elimination of the revenue, costs and expenses related to the Rocky Flats' business as if the acquisition had occurred January 1, 2002 and 2003, as applicable. d) In order to show the Cumulative Sale impact, the adjustments made to reflect elimination of the revenue, costs and expenses related to the GoTrain and Energy businesses as if the acquisitions had occurred January 1, 2002 and 2003, as applicable. e) In order to show the Cumulative Sale impact, the adjustments made to reflect elimination of the interest expenses associated with the GoTrain debentures as if the net proceeds were available to payoff the debentures on January 1, 2002 and 2003, as applicable. -----END PRIVACY-ENHANCED MESSAGE-----