PARENT VOTING AGREEMENT
Exhibit 10.1
THIS PARENT VOTING AGREEMENT (this
“Agreement”)
is made and entered into as of April ___, 2019, by and among
Command Center, Inc., a Washington corporation
(“Parent”),
the undersigned shareholder (“Shareholder”)
of Parent, and Hire Quest Holdings, LLC, a Florida limited
liability company (the “Company”).
RECITALS
A. Concurrently
with the execution of this Agreement, Parent, Parent’s
subsidiary, CCNI One, Inc., a Florida corporation
(“Merger
Sub 1”), Parent’s
subsidiary, Command Florida, LLC, a Florida limited liability
company (“Merger
Sub 2”), and the Company
have entered into an Agreement and Plan of Merger (the
“Merger
Agreement”), which
provides for (i) the merger of Merger Sub 1 with and into the
Company (the “First
Merger”), with the
Company surviving the First Merger, (ii) immediately followed by
the merger of the Company with and into Merger Sub 2 (the
“Second
Merger” and collectively
with the First Merger, the “Merger”).
B. The
parties to the Merger intend that promptly after the Merger
and subject to the approval of Parent’s shareholders, Parent
will be converted to a Delaware corporation.
C. In
the Merger, upon the terms and subject to the conditions of the
Merger Agreement, all of the membership interests of the
Company’s members in the Company will be converted into the
right to receive the consideration set
forth in the Merger Agreement, all upon the terms and subject to
the conditions set forth in the Merger
Agreement.
D. As
of the date hereof, Shareholder is the beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”)) of the number of
shares of outstanding capital stock of Parent and other securities
convertible into, or exercisable or exchangeable for, shares of
capital stock of Parent (the “Shares”)
set forth on the signature page of this
Agreement.
E. As
a material inducement to the Company to enter into and to
consummate the transactions contemplated by the Merger Agreement,
Company has required that Shareholder agree, and Shareholder is
willing to agree, to restrict the transfer or disposition of any of
the Shares, or any other shares of capital stock of the Parent
acquired by Shareholder
hereafter and prior to the Expiration Time (as defined in
Section 1(a)
hereof), and to vote the Shares and
any other such shares of capital stock of Parent as set forth in
this Agreement.
NOW,
THEREFORE, the parties hereto hereby agree as follows:
1. Agreement
to Retain Shares.
(a) Transfer. Shareholder
agrees that, at all times during the period beginning on the date
hereof and ending at the Expiration Time, Shareholder shall not
Transfer (as defined below) any of the Shares or any New Shares (as
defined in Section 1(b)
hereof), or make any agreement
regarding any Transfer, in each case without the prior written
consent of the Company. Shareholder agrees that any
Transfer in violation of this Agreement shall be void and of no
force or effect. Notwithstanding anything to the contrary contained
herein, Shareholder’s participation in the Offer (as defined
in the Merger Agreement) shall not be deemed a Transfer and shall
not be limited by the terms of this Agreement.
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As used herein, the term
“Expiration
Time” shall mean the
earliest to occur of (i) the Effective Time (as defined in the
Merger Agreement), (ii) the termination of the Merger Agreement in
accordance with the terms thereof, including without limitation
pursuant to Section 7.04(a) thereof, or (iii) the occurrence of a
Material Adverse Amendment. As used herein (A) the term
“Material
Adverse Amendment” shall
mean an amendment, modification or waiver to the Merger Agreement
that (i) (1) directly or indirectly increases the Merger
Consideration (as defined in the Merger Agreement) payable in
connection with the Merger, (2) waives, amends or modifies any
condition to the obligation of Parent to consummate the Merger, (3)
waives any breach of representation, warranty, covenant or
agreement of Company contained in the Merger Agreement, (4) waives,
amends or modifies any representation, warranty, covenant or
agreement of Company so as to reduce the scope thereof, or the
obligation thereunder, or (5) materially and adversely affects the
Shareholder and (ii) is approved by the Parent’s Board of
Directors regardless of whether in such vote the
Shareholder’s nominee (if any) on the Parent’s Board of
Directors (or the Shareholder in his capacity as a director) voted
against such amendment. As used herein, the term
“Transfer”
shall mean, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, pledge, hypothecation, or the
gift, placement in trust, or the Constructive Sale (as defined
below) or other disposition of such security (excluding transfers
by testamentary or intestate succession or otherwise by operation
of law) or any right, title or interest therein (including, but not
limited to, any right or power to vote to which the holder thereof
may be entitled, whether such right or power is granted by proxy or
otherwise), or the record or beneficial ownership thereof, the
offer to make such a sale, transfer, Constructive Sale or other
disposition, and each agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing,
excluding any of the foregoing effected (A) pursuant to a court
order, (B) pursuant to the Merger, (C) pursuant to a Rule 10b5-1
trading plan, (D) to any transferee if such transferee, prior to
the Transfer, executes a binding agreement with Parent and the
Company substantially in the form of this Agreement. As
used herein, the term “Constructive
Sale” shall mean, with
respect to any security, a short sale with respect to such
security, entering into or acquiring an offsetting derivative
contract with respect to such security, entering into or acquiring
a futures or forward contract to deliver such security or entering
into any other hedging or other derivative transaction that has the
effect of materially changing the economic benefits and risks of
ownership.
(b) New
Shares. Shareholder
agrees that any shares of capital stock of the Parent that
Shareholder purchases or with respect to which Shareholder
otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Time, including, without
limitation, shares issued or issuable upon the conversion, exercise
or exchange, as the case may be, of all securities held by
Shareholder which are convertible into, or exercisable or
exchangeable for, shares of capital stock of the Parent
(“New
Shares”), shall be
subject to the terms and conditions of this Agreement to the same
extent as if they constituted Shares as of the date
hereof.
2. Agreement
to Vote Shares. Until the Expiration Time, at every
meeting of shareholders of the Parent called with respect to any of
the following, and at every adjournment or postponement thereof,
and on every action or approval by written consent of shareholders
of the Parent with respect to any of the following, Shareholder
shall vote, to the extent not voted by the person(s) appointed
under the Proxy (as defined in Section
3), the outstanding Shares and
any outstanding New Shares (to the extent any such New Shares may
be voted):
(i) in
favor of approval of the increase in the number of Parent’s
authorized shares of common stock as set forth in the Merger
Agreement;
(ii) in
favor of approval of the conversion of the Parent from a Washington
corporation to a Delaware corporation as set forth in the Merger
Agreement;
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(iii) in
favor of approval of the issuance of shares of the common stock of
the Parent as consideration for the Merger and in favor of the
related change of control transaction for purposes of Nasdaq
listing rules as set forth in the Merger Agreement;
(iv) in
favor of approval of the change in name of Parent to
“HireQuest, Inc.” as set forth in the Merger
Agreement;
(v)
against approval of any proposal made in opposition to, or in
competition with, any of the above proposals;
(vi) against
any action which the Parent is prohibited from taking under Section
5.02 of the Merger Agreement;
(vii) in
favor of waiving any notice that may have been or may be required
relating to any reorganization of the Parent or any subsidiary of
the Parent, any issuance, reclassification or recapitalization of
the capital stock of the Parent or any subsidiary of the Parent,
any sale or purchase of assets, change of control of or acquisition
by the Parent or any subsidiary of the Parent or any other person,
or any consolidation or merger to which the Parent or any
subsidiary of the Parent is the surviving entity.
Prior to the Expiration Time, Shareholder shall
not enter into any agreement or understanding with any person to
vote or give instructions in any manner inconsistent with
this Section
2.
3. Irrevocable
Proxy. Concurrently
with the execution of this Agreement, Shareholder agrees to deliver
to Company an irrevocable proxy in the form attached hereto
as Appendix A
(the “Proxy”),
which shall be irrevocable to the fullest extent permitted by
applicable law, covering the total number of Shares and New
Shares.
4. Representations,
Warranties and Covenants of Shareholder. Shareholder represents, warrants and
covenants to Company as follows:
(i) Shareholder
is the beneficial owner of the Shares, with full power to vote or
direct the voting of the Shares for and on behalf of any and all
beneficial owners of the Shares.
(ii) As
of the date hereof, the Shares are, and at all times up until the
Expiration Time the Shares will be, free and clear of any rights of
first refusal, co-sale rights, security interests, liens, pledges,
claims, options, charges or other encumbrances of any kind or
nature, in each case that would impair Shareholder’s ability
to fulfill its obligations under Section 2. The
execution and delivery of this Agreement by Shareholder do not, and
Shareholder’s performance of its obligations under this
Agreement will not conflict with or violate any order, decree,
judgment or agreement known by the Shareholder to be applicable to
such Shareholder or by which Shareholder or any of
Shareholder’s properties or Shares is
bound.
(iii) Shareholder
does not beneficially own any shares of capital stock of the
Parent, or any securities convertible into, or exchangeable or
exercisable for, shares of capital stock of the Parent, other than
as set forth on the signature page hereto.
(iv) Shareholder
has full power and authority to make, enter into and carry out the
terms of this Agreement, the Proxy and any other related agreements
to which Shareholder is a party.
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5. Additional
Documents. Shareholder hereby covenants and
agrees to execute and deliver any additional documents reasonably
necessary or desirable to carry out the purpose and intent of this
Agreement.
6. Termination. This
Agreement and the Proxy delivered in connection herewith shall
terminate automatically and shall have no further force or effect
as of the Expiration Time.
7. Parent
Covenants. The Parent agrees to make a notation
on its records and give instructions to its transfer agent(s) not
to permit, prior to the Expiration Time, the transfer of any Shares
or New Shares, except as permitted pursuant to Section 1(a).
8. Miscellaneous.
(a) Directors
and Officers. Notwithstanding any provision of
this Agreement to the contrary, Shareholder has entered into this
Agreement in its, his or her capacity as a Shareholder of the
Parent, and nothing in this Agreement shall limit or restrict
Shareholder or any representative of Shareholder from acting, if
applicable, in the Shareholder’s or such
representative’s capacity as a director or officer of the
Parent (it being understood that this Agreement shall apply to
Shareholder solely in Shareholder’s capacity as a shareholder
of the Parent) or voting in Shareholder’s sole discretion on
any matter other than those matters referred to in Section 2. Company
covenants that it will not bring, commence, institute, maintain,
prosecute, participate in or voluntarily aid any action, claim,
suit or cause of action, in law or in equity, in any court or
before any governmental entity, which (i) alleges that any action
taken (or not taken) by Shareholder or Shareholder’s
representative solely in Shareholder’s or such
representative’s capacity as a director or officer of the
Parent breaches or violates or would breach or violate any
provision of this Agreement or the Proxy or (ii) challenges the
right of Shareholder to vote or challenges the validity of or seeks
to enjoin any vote by Shareholder (or the grant of a proxy with
respect thereto) on any matter other than those matters set forth
in Section
2.
(b) Waiver. No
waiver by any party hereto of any condition or any breach of any
term or provision set forth in this Agreement shall be effective
unless in writing and signed by the other party
hereto. The waiver of any breach of any term or
provision of this Agreement shall not operate as or be construed to
be a waiver of any other previous or subsequent breach of any term
or provision of this Agreement. No delay or omission by
Company in exercising any right under this Agreement shall operate
as a waiver of that right or any other right under this
Agreement.
(c) Notices. All
notices and other communications hereunder shall be in writing and
shall be deemed duly given (i) on the date of delivery if
delivered personally, (ii) on the date of confirmation of
receipt (or the first business day following such receipt if the
date is not a business day) if sent via facsimile (receipt
confirmed), or (iii) on the date of confirmation of receipt
(or the first business day following such receipt if the date is
not a business day) if delivered by a nationally recognized courier
service. All notices hereunder shall be delivered to the
parties at the following addresses or facsimile numbers (or
pursuant to such other instructions as may be designated in writing
by the party to receive such notice):
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If to
Company:
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Hire Quest Holdings, LLC
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000
Xxxxxxxxxx Xxxxx
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Xxxxx
Xxxxx, XX 00000
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Telephone: (000)
000-0000
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Facsimile:
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Attention:
Xxxx XxXxxxx
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With a
copy to:
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Hill
Xxxx Xxxxxxxxx
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000
Xxxx Xxxxxxx Xxxxxxxxx, Xxxxx 0000
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Xxxxx,
XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Attention:
Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxx
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If to
Parent:
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0000 X Xxxxxxxxx Xxxx Xxxxx 000
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Xxxxxxxx, XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
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Attention: Xxxxxxx
Xxxxxxxx
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With a
copy to:
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Xxxxxx
Frome Wolosky LLP
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0000
Xxxxxx xx xxx Xxxxxxxx
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Xxx
Xxxx, XX 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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Attention:
xxxxxxxxx@xxxxxxxxx.xxx
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If to
Shareholder:
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To the
address for notice set forth on the signature page
hereof
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(d) Headings. All
captions and section headings used in this Agreement are for
convenience only and do not form a part of this
Agreement.
(e) Counterparts. This
Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood
that all parties need not sign the same counterpart.
(f) Entire
Agreement; Amendment. This Agreement constitutes
the entire agreement among the parties with respect to the subject
matter hereof and supersedes all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof. This Agreement may
not be changed or modified, except by an agreement in writing
specifically referencing this Agreement and executed by each of the
parties hereto.
(g) Severability. In
the event that any provision of this Agreement, shall be determined
to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Agreement shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the
fullest extent permitted by law.
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(h) Governing
Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington,
regardless of the laws that might otherwise govern under applicable
principles of conflicts of law thereof. The venue and
consent to jurisdiction provisions of Section 8.05 of the Merger
Agreement shall apply to this Agreement as set forth
herein.
(i) Rules
of Construction. The parties hereto agree that they
have been represented by counsel during the negotiation and
execution of this Agreement and, therefore, waive the application
of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be
construed against the party drafting such agreement or
document.
(j) Remedies. The
parties acknowledge that Company will be irreparably harmed and
that there will be no adequate remedy at law for a violation of any
of the covenants or agreements of Shareholder set forth
herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Company upon any such
violation, Company shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any
other means available to Company at law or in equity.
(k) No
Assignment. Unless otherwise provided for herein,
Shareholder may not assign this Agreement. This
Agreement shall inure to the benefit of Parent, Company and their
respective successors and assigns.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement on
the date first above written.
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HIRE QUEST HOLDINGS, LLC
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SHAREHOLDER:
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By:
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Name:
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Signature
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Title:
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Print
Name
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Address
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Shares:
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By:
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Name:
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Parent
Common
Stock:
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Title:
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Parent
Preferred
Stock:
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Parent
Options:
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Parent
Warrants:
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[SIGNATURE PAGE TO PARENT VOTING AGREEMENT]
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APPENDIX A
IRREVOCABLE PROXY
The
undersigned shareholder (“Shareholder”)
of Command Center, Inc., a Washington corporation (the
“Parent”),
hereby irrevocably (to the fullest extent permitted by law)
appoints Xxxx Xxxxxxxx and Xxxx XxXxxxx of Hire Quest Holdings,
LLC, a Florida limited liability company (“Company”),
and each of them, as the sole and exclusive attorneys-in-fact and
proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights
(to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Parent that
now are or hereafter may be beneficially owned by the undersigned,
and any and all other shares or securities of the Parent issued or
issuable in respect thereof on or after the date hereof
(collectively, the “Shares”),
in accordance with the terms of this Proxy until the Expiration
Time (as defined in that certain Parent Voting Agreement, dated of
even date herewith, by and among Parent, the Company and
Shareholder (the “Voting
Agreement”)), subject to limitations herein and
therein. The Shares beneficially owned by the
undersigned shareholder of the Parent as of the date of this Proxy
are listed on the final page of this Proxy. Upon the
undersigned’s execution of this Proxy, any and all prior
proxies given by the undersigned with respect to any Shares for the
Specified Matters (as defined below) are hereby revoked and the
undersigned hereby agrees not to grant any subsequent proxies with
respect to the Shares until after the Expiration Time (as defined
in the Voting Agreement).
This
Proxy is irrevocable (to the fullest extent permitted by applicable
law), is coupled with an interest and is granted pursuant to the
Voting Agreement, and is granted in consideration of Company
entering into that certain Agreement and Plan of Merger, dated as
of April ___, 2019, by and among Parent, the Company and certain
other parties (the “Merger
Agreement”). The Merger Agreement provides
for (i) the merger of Merger Sub 1 with and into the Company (the
“First
Merger”), with the Company surviving the First Merger,
(ii) immediately followed by the merger of the Company with and
into Merger Sub 2 (the “Second
Merger” and collectively with the First Merger, the
“Merger”).
The
attorneys-in-fact and proxies named above are hereby authorized and
empowered by the undersigned, at any time prior to the Expiration
Time (as defined in the Voting Agreement), to act as the
undersigned’s attorney-in-fact and proxy to vote the Shares,
and to exercise all voting, consent and similar rights of the
undersigned with respect to the Shares (including, without
limitation, the power to execute and deliver written consents), at
every annual, special, adjourned or postponed meeting of
shareholders of the Parent and in every written consent in lieu of
such meeting with respect to the following matters (the
“Specified
Matters”):
(i) in
favor of approval of the increase in the number of Parent’s
authorized shares of common stock as set forth in the Merger
Agreement;
(ii) in
favor of approval of the conversion of the Parent from a Washington
corporation to a Delaware corporation as set forth in the Merger
Agreement;
(iii) in
favor of approval of the issuance of shares of the common stock of
the Parent as consideration for the Merger and in favor of the
related change of control transaction for purposes of Nasdaq
listing rules as set forth in the Merger Agreement;
(iv) in
favor of approval of the change in name of Parent to
“HireQuest, Inc.” as set forth in the Merger
Agreement;
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(v)
against approval of any proposal made in opposition to, or in
competition with, any of the above proposals;
(vi) against
any action which the Parent is prohibited from taking under Section
5.02 of the Merger Agreement;
(vii) in
favor of waiving any notice that may have been or may be required
relating to any reorganization of the Parent or any subsidiary of
the Parent, any issuance, reclassification or recapitalization of
the capital stock of the Parent or any subsidiary of the Parent,
any sale or purchase of assets, change of control of or acquisition
by the Parent or any subsidiary of the Parent or any other person,
or any consolidation or merger to which the Parent or any
subsidiary of the Parent is the surviving entity.
The
attorneys-in-fact and proxies named above may not exercise this
Proxy on any other matter except for the Specified Matters as
described in clauses (i), (ii), (iii), (iv), (v), (vi) or (vii)
above, and Shareholder may vote the Shares on all other
matters.
Any
obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This
Proxy shall terminate, and be of no further force and effect,
automatically as of the Expiration Time.
[Remainder
of Page Intentionally Left Blank]
*****
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This
Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Time (as defined in the Voting
Agreement).
Dated:
____________, 2019
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Signature
Print
Name
Address
Shares:
Parent
Common Stock:
Parent
Preferred Stock:
Parent
Options:
Parent
Preferred Stock:
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[SIGNATURE PAGE TO PROXY]
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