EXHIBIT 9.1.1
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement") is made and entered
into on September 2, 2005, by and between O2 HR, LLC (the "Buyer")
and Certified Services, Inc. (the "Seller"). The Buyer and the
Seller are referred to herein individually as a "Party" and
collectively as the "Parties."
RECITALS
WHEREAS, this Agreement contemplates a transaction in which
simultaneously with the execution and delivery of this Agreement the
Buyer will purchase, and the Seller will sell and assign to Buyer,
100% (except as otherwise noted) of the outstanding capital stock
and/or membership interests (the "Shares") of the entities listed in
Schedule 3.09 hereto (each, a "Company" and collectively, the
"Companies") and Seller's rights related to certain customer accounts
to which it enjoys a right to direct the servicing of as set forth in
Schedule 3.05 (the "Brokered Accounts").
NOW, THEREFORE, in consideration of the premises and the mutual
promises made in this Agreement, and in consideration of the
representations, warranties, and covenants contained in this
Agreement, the Parties agree as follows.
1.0 DEFINITIONS. For purposes of this Agreement and the
Acquisition Documents, the capitalized terms shall have the meanings
set forth in the attached Glossary of Terms.
2.0 BASIC TRANSACTION.
2.01 Purchase and Sale of Shares and Brokered Accounts. Upon and
subject to the terms and conditions of this Agreement, simultaneously
with the execution and delivery of this Agreement, the Buyer is
purchasing from the Seller, and the Seller is selling, transferring,
conveying, assigning, and delivering to the Buyer, the Shares and the
Brokered Accounts, free and clear of all liens, claims, charges,
Security Interests, and encumbrances of any kind or nature.
2.02 Purchase Price and Payment. The purchase price ("Purchase
Price") for the Shares is $4,355,546. $4,241,459 shall be paid by
Buyer assuming responsibility for certain liabilities of the
Companies and Seller as set forth in Schedule 2.02 pursuant to the
Assignment and Assumption Agreement set forth as Exhibit 2.02. The
cash portion of the Purchase Price shall be paid as follows. Buyer
shall receive a $100,000 credit against the balance of the Purchase
Price for pre-payments made during the two week period immediately
prior hereto for the benefit of Seller and the Companies. At the
Closing Buyer shall pay Seller the balance of the Purchase Price by
a check in the amount of $14,087 (the "Cash Payment").
2.03 The Closing. The consummation of the transactions
contemplated hereby (the "Closing") is taking place simultaneously
with the execution and delivery of this Agreement on September 2,
2005 (the "Closing Date"). The Closing shall be effective and deemed
to occur for all purposes hereunder at 12:01 a.m. on Monday, August
29, 2005 (the "Effective Time").
2.04 Deliveries at the Closing. In addition to any other
documents to be delivered under the other provisions of this
Agreement, at the Closing:
(a) the Seller has executed, acknowledged (if appropriate)
and delivered to the Buyer
(i) certificates representing the Shares, together with
accompanying stock powers or instruments of assignment, duly endorsed
in blank for the transfer of the Shares to Buyer; and
(ii) the Assignment and Assumption Agreement
(b) the Buyer has executed and delivered to Seller
(i) the Assignment and Assumption Agreement, and
(ii) the Cash Payment
3.0 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller
represents and warrants to the Buyer that:
3.01 The Companies' Organization, Standing. Each Company is a
corporation or limited liability company duly organized, validly
existing, and in good standing under the laws of its state of
organization, and has the corporate power and authority to carry on
its business in the manner in which such business is now being
conducted and to own, lease and operate the assets which it now owns
and leases. The Seller has delivered to the Buyer correct and
complete copies of the organizational documents of each such Company
(as amended to date).
3.02 Authorization of Transaction. Seller has full corporate
power and authority to execute and deliver the Acquisition Documents
to which it is a party and to perform its obligations in all
respects as required by the Acquisition Documents. The board of
directors of the Seller have duly authorized the execution, delivery
and performance of the Acquisition Documents to which Seller is a
party. The Acquisition Documents constitute valid and legally binding
obligations of the Seller, enforceable in accordance with their terms
and conditions, in each case subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general application
relating to or affecting creditors' rights and to general equity
principles.
3.03 Non-contravention. Neither the execution and the delivery of
the Acquisition Documents, nor the consummation or performance of the
transactions contemplated in the Acquisition Documents, will (a)
violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, or other restriction of any
government, governmental agency or court to which Seller or any
Company is subject or any provision of the charter or bylaws of
Seller or any Company, or (b) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or
2
require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Seller or Company is a
party or by which Seller or any Company is bound, or a material
adverse effect on the ability of Seller to consummate the
transactions contemplated in the Acquisition Documents.
3.04 Title to Shares. Seller has good title to all of the Shares
and the Brokered Accounts, free and clear of all Security Interests
or restrictions on transfer. The delivery to Buyer of the Shares and
Brokered Accounts as contemplated in this Agreement will transfer to
Buyer valid title thereto, free and clear of all liens.
3.05 Client Information. Seller has delivered to Buyer a
schedule listing each customer of the Companies as of August 7, 2005
(the "Clients"). The annualized gross revenues derived by Seller
from the Clients was not less than $96,000,000 during the four week
period commencing July 11, 2005 and ending August 7, 2005. There has
been no material adverse change in the Companies' businesses since
August 7, 2005. Attached as Schedule 3.05 is a listing of the
Brokered Accounts being transferred to Buyer.
3.06 Client Service Agreements. As to the Seller and to the
Knowledge of the Seller as to any other Party: (i) each Client
Service Agreement is legal, valid, binding, enforceable and in full
force and effect, in each case subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general application
relating to or affecting creditors' rights and to general equity
principles; (ii) neither any Company nor any other party to any
Client Service Agreement is in material breach or default (including
with respect to payment of fees and expenses or the giving of
notices), and, no event has occurred which, with notice or the lapse
of time, would constitute such a breach or default, or permit
termination or modification, of any Client Service Agreement; and
(iii) no party to any Client Service Agreement has repudiated to any
Company any provision thereof or indicated to any Company its intent
to cancel such Client Service Agreement.
3.07 Worksite Employees.
(a) No Company is a party to or bound by any collective
bargaining agreement related to any Client or Worksite Employees. No
Company has, since January 1, 2004, experienced any strikes,
grievances, claims of unfair labor practices, or other collective
bargaining disputes involving such Company, related to any Client or
Worksite Employees. Since January 1, 2004, no Company has committed
or been charged or threatened with a charge of any unfair labor
practice. Seller has no Knowledge of any organizational effort
presently being made or threatened by or on behalf of any labor union
with respect to any Client or any Worksite Employees.
3
(b) Each Company is in material compliance with all
applicable federal, state, local and foreign laws and regulations
concerning the employer-employee relationship and with all agreements
relating to the employment of its Worksite Employees, including
applicable wage and hour laws, fair employment laws, safety laws,
workers' compensation statutes, unemployment laws, and social
security laws. With respect to each Company and its PEO Business,
there are no pending or, to the Knowledge of the Seller, threatened
claims, investigations, charges, citations, hearings, consent
decrees, or litigation concerning: wages, compensation, bonuses,
commissions, awards, or payroll deductions, equal employment or
human rights violations regarding race, color, religion, sex,
national origin, age, handicap, veteran's status, marital status,
disability, or any other recognized class, status, or attribute
under any federal, state, local or foreign equal employment law
prohibiting discrimination; representation petitions or unfair
labor practices; grievances or arbitrations pursuant to current or
expired collective bargaining agreements; occupational safety and
health; workers compensation; wrongful termination, negligent hiring,
invasion of privacy or defamation; immigration or any other Labor
Claims. No Company is liable for any unpaid wages, bonuses, or
commissions (other than those not yet due) or any tax, penalty,
assessment, or forfeiture for failure to comply with any of the
foregoing. There is no outstanding agreement or arrangement to which
any Company is a party with respect to severance payments with
respect to any employee or any Worksite Employee.
3.08 Disclosure. No representation or warranty of the Seller in
this Agreement or in any Schedule furnished by the Seller, or in
connection with the transactions contemplated herein, contains any
untrue statement of material fact or omits to state any material fact
necessary in order to make the statements contained therein not
misleading, and all such representations, warranties and Schedules
are true and complete.
3.09 Capital Stock. The Companies are set forth in Schedule 3.09.
Except as set forth in Schedule 3.09 the sole outstanding equity
interests of each Company consists solely of the Shares being
transferred by Seller to Buyer hereunder. The Companies have no
other authorized class of capital stock or other equity interest.
All of the Shares have been duly and validly issued, are fully paid
and nonassessable. There are no outstanding warrants, options,
rights, calls or other commitments of any nature relating to the
Shares of the Companies, and there are no outstanding securities of
the Companies convertible into or exchangeable for capital stock of,
or other ownership or equity interests in, the Companies. No Company
is obligated to issue any shares of its capital stock for any
purpose, and no Person has entered into any contract or option or any
right or privilege (whether pre-emptive or contractual) capable of
becoming a contract or option for the purchase, subscription or
issuance of any of the authorized but unissued capital stock of any
Company.
3.10 Subsidiaries and Investments. The Companies have no
subsidiaries and do not own, directly or indirectly, any capital
stock or other equity, ownership, proprietary or voting interest in
any Person, other than Certified HR Solutions Co. owns a 49%
membership interest in ITH Certified Solutions, LLC.
4
4.0 REPRESENTATIONS AND WARRANTIES OF THE BUYER. The Buyer
represents and warrants to the Seller that:
4.01 Authorization of Transaction. The Buyer has full power and
authority (including full corporate power and authority) to execute
and deliver the Acquisition Documents to which it is a party and to
perform its obligations thereunder. The governing board of the Buyer
has duly authorized the execution, delivery, and performance of the
Acquisition Documents to which the Buyer is a party. No approval of
the members of the Buyer is required in order for the Buyer to
consummate the transactions contemplated by this Agreement. The
Acquisition Documents constitute the valid and legally binding
obligations of the Buyer, enforceable in accordance with their terms
and conditions.
4.02 Non-contravention. Neither the execution and the delivery of
the Acquisition Documents to which it is a party, nor the
consummation of the transactions contemplated in the Acquisition
Documents, will (a) violate any constitution, statute, regulation,
rule, injunction, judgment, order, decree, ruling, charge, or other
restriction of any government, governmental agency, or court to
which the Buyer is subject or any provision of its charter or bylaws,
or (b) conflict with, result in a breach of, constitute a default
under, result in the acceleration of, create in any party the right
to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other
arrangement to which the Buyer is a party or by which it is bound or
to which any of its assets is subject. The Buyer does not need to
give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions
contemplated by the Acquisition Documents.
4.03 Organization and Qualification. Buyer is an Illinois limited
liability company duly organized, validly existing and in good
standing under the laws of the State of Illinois and has full power
and authority to carry on its current business and to own, use and
sell its assets and properties.
5.0 POST-CLOSING COVENANTS. The Parties agree with respect to the
period following the Closing:
5.01 Litigation Support. In the event and for so long as any
Party actively is contesting or defending against any action, suit,
proceeding, hearing, investigation, charge, complaint, claim, or
demand in connection with (i) any transaction contemplated under the
Acquisition Documents or (ii) any fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction occurring prior to
the Effective Time involving the Seller or any Company, each of the
other Parties will cooperate with each other and their counsel in the
contest or defense, make available their personnel, and provide such
testimony and access to their books and records as shall be
reasonably necessary in connection with the contest or defense, all
at the sole cost and expense of the contesting or defending Party
(unless the contesting or defending Party is entitled to
indemnification therefor).
5
5.02 Tax Matters. The following provisions shall govern the
allocation of responsibility as between the Buyer and the Seller for
certain tax matters following the Closing Date:
(a) The Buyer and the Seller shall cooperate fully, as and to
the extent reasonably requested by the other, in connection with the
filing of Tax Returns and any audit, litigation or other proceeding
with respect to Taxes. Such cooperation shall include the retention
and (upon the other's reasonable request) the provision of records
and information which are reasonably relevant to any such audit,
litigation or other proceeding and making employees available on a
mutually convenient basis to provide additional information and
explanation of any material provided. The Seller and the Buyer agree
(i) to retain all books and records with respect to Tax matters
relating to any taxable period beginning before the Closing Date
until the expiration of the statute of limitations (and, to the
extent notified by the Buyer or the Seller, any extensions thereof)
of the respective taxable periods, and to abide by all record
retention agreements entered into with any taxing authority, and (ii)
to give the other reasonable written notice prior to transferring,
destroying or discarding any such books and records and, if the party
so requests, to allow the other party to take possession of such
books and records.
(b) The Buyer and the Seller further agree, upon reasonable
request, to use their reasonable best efforts to obtain any
certificate or other document from any governmental authority or any
other Person as may be necessary to mitigate, reduce or eliminate any
Tax imposed (including with respect to the transactions contemplated
herein).
6.0 REMEDIES FOR BREACHES OF THIS AGREEMENT.
6.01 Survival of Representations, Warranties, Covenants and
Agreements.
(a) All of the representations and warranties of the Seller
contained herein shall survive the Closing (even if the Buyer knew
or had reason to know of any misrepresentation or breach of warranty
at the time of the Closing) and continue in full force and effect
until the fifth anniversary of the Closing Date.
(b) All of the representations and warranties of the Buyer
shall survive the Closing (even if the Seller knew or had reason to
know of any misrepresentation or breach of warranty at the time of
the Closing) and and continue in full force and effect until the
fifth anniversary of the Closing Date.
6.02 Indemnification Provisions for Benefit of the Buyer.
(a) In the event that the Seller breaches any of its
representations, warranties, covenants and agreements contained in
this Agreement, and, provided that the Buyer makes a written claim
for indemnification against the Seller prior to the fifth anniversary
of the Closing Date, the Seller agrees to indemnify the Buyer from
and against the entirety of any Adverse Consequences the Buyer may
suffer resulting from, arising out of or caused by the breach. The
Parties acknowledge that Seller is in breach of numerous
representations and warranties made herein and that, notwithstanding
such acknowledgement and Buyer's prior awareness thereof, Buyer shall
be entitled to indemnification therefore in accordance herewith.
6
(b) The Seller also agrees to indemnify the Buyer and its
affiliates, officers, employees, agents and representatives (the
"Indemnified Parties") from and against the entirety of any Adverse
Consequences they may suffer resulting from, arising out of, in
connection with, or caused by:
(i) any liability, act, event, occurrence or
circumstances in respect of or relating to any Company that occurred
prior to the Effective Time, other than the Assumed Liabilities;
(ii) any Liability of the Companies for unpaid Taxes with
respect to any Tax year or portion thereof ending before the
Effective Time (or for any Tax year beginning before and ending after
the Effective Time to the extent allocable to the portion of such
period beginning before and ending immediately prior to the
Effective Time), other than an amount of such Taxes as are included
in the Assumed Liabilities; or
(iii) any Adverse Consequences suffered by them in
defending or otherwise becoming involved in any proceeding directly
or indirectly relating to the transactions contemplated hereby,
including without limitation actions by Seller's or Companies'
creditors involving the Indemnified Parties, and specifically
including as Adverse Consequences 150% of the time value of Buyer's
employees lost to involvement in any such proceedings, but excluding
actions as to which Seller enjoys a right to indemnification
hereunder, and excluding actions wherein the Indemnified Party is
adjudged to have acted with criminal intent.
Any amounts due Buyer or an Indemnified Party from Seller hereunder
may be satisfied by Buyer offsetting its obligations under the Note
or under any other monetary obligation owing to Buyer from Seller.
6.03 Indemnification Provisions for Benefit of the Seller.
(a) In the event the Buyer breaches any of its
representations, warranties, covenants and agreements contained in
this Agreement and provided that the Seller makes a written claim for
indemnification against the Buyer prior to the fifth anniversary of
the Closing Date, then the Buyer agrees to indemnify the Seller from
and against the entirety of any Adverse Consequences the Seller may
suffer resulting from, arising out of, or caused by the breach.
(b) The Buyer also agrees to indemnify the Seller from and
against the entirety of any Adverse Consequences the Seller may
suffer resulting from, arising out of, in connection with, or caused
by:
7
(i) any act, event, occurrence or circumstances in
respect of or relating to the Companies that occurs after the
Effective Time, other than an act, event, occurrence or circumstance
which is subject to indemnification under Section 6.02; or
(ii) any Assumed Liability.
6.04 Matters Involving Third Parties.
(a) If any Third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third party
Claim") which may give rise to a claim for indemnification against
any other Party (the "Indemnifying Party"), then the Indemnified
Party shall promptly notify each Indemnifying Party thereof in
writing; provided, however, that no delay on the part of the
Indemnified Party in notifying any Indemnifying Party shall relieve
the Indemnifying Party from any obligation hereunder unless (and
then solely to the extent) the Indemnifying Party thereby is
prejudiced.
(b) Any Indemnifying Party will have the right to defend the
Indemnified Party against the Third party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party so long as
(i) the Indemnifying Party notifies the Indemnified Party in writing
within fifteen (15) days after the Indemnified Party has given notice
of the Third party Claim that the Indemnifying Party will assume the
defense of such Third party Claim, (ii) the Indemnifying Party
provides the Indemnified Party with evidence reasonably acceptable
to the Indemnified Party that the Indemnifying Party will have the
financial resources to defend against the Third party Claim and
fulfill its indemnification obligations, (iii) the Third party Claim
involves only money damages and does not seek an injunction or other
equitable relief, (iv) settlement of, or an adverse judgment with
respect to, the Third party Claim is not, in the good faith judgment
of the Indemnifying Party, likely to establish a precedential custom
or practice adverse to the continuing business interests of the
Indemnified Party, and (v) the Indemnifying Party conducts the
defense of the Third party Claim actively and diligently. So long as
the Indemnifying Party is conducting the defense of the Third party
Claim, the Indemnified Party may retain separate co-counsel at its
sole cost and expense and participate in the defense of the Third
party Claim.
(c) In the event any of the conditions in Subparagraph 6.04
(b) is or becomes unsatisfied, (i) the Indemnified Party may assume
the defense of the Third party Claim with counsel of its choice, (ii)
the Indemnifying Parties will reimburse the Indemnified Party
promptly and periodically for any Adverse Consequences suffered by
the Indemnified Party in defending against the Third party Claim,
and (iii) the Indemnifying Parties will remain responsible for any
Adverse Consequences the Indemnified Party may suffer resulting from,
arising out of, relating to, in the nature of, or caused by the Third
party Claim to the fullest extent provided by this Agreement.
(d) The Indemnified Party will not consent to the entry of
any judgment or enter into any settlement with respect to any Third
party Claim if such settlement would obligate the indemnifying Party
to pay money, perform obligations or admit liability without the
prior written consent of the Indemnified Party (not to be withheld
unreasonably), and the Indemnifying Party will not consent to the
8
entry of any judgment or enter into any settlement with respect to
any Third party Claim if such settlement would obligate the
Indemnified Party to pay money, perform obligations or admit
liability without the prior written consent of the Indemnifying Party
(not to be withheld unreasonably).
6.05 Exclusive Remedies. Except for remedies that cannot be
waived as a matter of law and injunctive and provisional relief
(including specific performance), this Article 6.0 and Section 7.11
shall be the exclusive remedy for breaches of this Agreement
(including any covenant, obligation, representation or warranty
contained in this Agreement or in any certificate delivered pursuant
to this Agreement).
6.06 Mitigation. Each of the Parties agrees to take all
reasonable steps to mitigate their respective Adverse Consequences
upon and after becoming aware of any event or condition which could
reasonably be expected to give rise to any Adverse Consequences that
are indemnifiable hereunder.
7.0 MISCELLANEOUS.
7.01 Governing law, Venue. This Agreement shall be governed by
and construed in accordance with the internal laws of the
Commonwealth of Kentucky. The parties hereby irrevocably submit to
the exclusive jurisdiction and venue of any state court sitting in
Jefferson County, Kentucky in any action or proceeding arising out
of or relating to this Agreement, and the parties hereby irrevocably
agree that all claims in respect of such action or proceeding may
be heard and determined in such State Court. The parties hereby
irrevocably waive, to the fullest extent they may do so, the defense
of an inconvenient forum to the maintenance of such action or
proceeding. The parties hereby consent and agree that the summons
and complaint and any other process which may be serviced in any such
action or proceeding may be served by mailing (by registered or
certified mail) or delivering a copy of such process to the opposing
party at its address set forth below. The parties agree that a
final judgment in any such action or proceeding shall be conclusive
and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law.
7.02 Press Releases and Public Announcements. No Party shall
issue any press release or make any public announcement relating to
the subject matter of this Agreement without the prior written
approval of the other Party; provided, however, that any Party may
make any public disclosure it believes in good faith is required by
applicable law or any trading agreement concerning its publicly-
traded securities (in which case the disclosing Party will use its
reasonable best efforts to advise the other Party prior to making the
disclosure, and to allow such other Party the opportunity to review
and comment on such disclosure).
9
7.03 No Third party Beneficiaries. Except as set forth in Section
6.02, this Agreement shall not confer any rights or remedies upon any
Person other than the Parties and their respective successors and
permitted assigns.
7.04 Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective
successors and permitted assigns. No Party may assign either this
Agreement or any of its rights, interests, or obligations hereunder
without the prior written approval of the other Party, provided that
Buyer may assign this Agreement in connection with a transfer of all
or substantially all of its assets and business.
7.05 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together will constitute one and the same instrument. Delivery
of facsimile signature pages shall have the same legal and
evidentiary effect as delivery of original signature pages.
7.06 Amendments and Waivers. No amendment of any provision of
this Agreement shall be valid unless the same shall be in writing and
signed by the Buyer and the Seller. No waiver by any Party of any
default, misrepresentation, or breach of warranty or covenant
hereunder, whether intentional or not, shall be deemed to extend to
any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights
arising by virtue of any prior or subsequent such occurrence.
7.07 Severability. Any term or provision of this Agreement that
is invalid or unenforceable in any situation in any jurisdiction
shall not affect the validity or enforceability of the remaining
terms and provisions hereof or the validity or enforceability of the
offending term or provision in any other situation or in any other
jurisdiction.
7.08 Expenses. Each of the Buyer and the Seller will bear its own
costs and expenses (including legal and accounting fees and expenses)
incurred in connection with this Agreement and the transactions
contemplated herein.
7.09 Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity
or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the Parties and no presumption
or burden of proof shall arise favoring or disfavoring any Party by
virtue of the authorship of any of the provisions of this Agreement.
Any reference to any federal, state, local, or foreign statute or
law shall be deemed also to refer to all rules and regulations
promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation. The
Parties intend that each representation, warranty, and covenant
contained herein shall have independent significance. If any Party
has breached any representation, warranty, or covenant contained
10
herein in any respect, the fact that there exists another
representation, warranty, or covenant relating to the same subject
matter (regardless of the relative levels of specificity) which the
Party has not breached shall not detract from or mitigate the fact
that the Party is in breach of the first representation, warranty,
or covenant. References to the singular shall include the plurals
and vice versa.
7.10 Incorporation of Exhibits and Schedules. The Exhibits,
Glossary of Terms, and Schedules identified in this Agreement are
incorporated herein by reference and made a part hereof.
7.11 Specific Performance. Each of the Parties acknowledges and
agrees that the other Party would be damaged irreparably in the event
any of the provisions of this Agreement are not performed in
accordance with their specific terms or otherwise are breached.
Accordingly, each of the Parties agrees that the other Party shall
be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this
Agreement and the terms and provisions hereof in any action
instituted in any court of the United States or any state thereof
having jurisdiction over the Parties and the matter, in addition to
any other remedy to which it may be entitled, at law or in equity.
IN WITNESS WHEREOF, the Parties hereto have executed this
Purchase Agreement on the date first above written.
O2 HR, LLC
BY:/s/ Xxxxxx Xxxx
-----------------------
Xxxxxx Xxxx, Manager
Address:
00000 Xxxxxxx Xxx.
Xxxxxxxxxx, XX 00000
CERTIFIED SERVICES, INC.
BY: /s/ Xxxxx Xxxxxx
--------------------------
Xxxxx Xxxxxx, President
Address:
000 Xxxxx Xx.
Xxxxx 000
Xxxx Xxxxxxx, XX 00000
11
GLOSSARY OF TERMS
1.0 Definitions.
"Acquisition Documents" means this Agreement and all other
documents or agreements related to the consummation of the
transactions contemplated in this Agreement.
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues,
penalties, fines, costs, amounts paid in settlement, Liabilities,
obligations, Taxes, liens, losses, expenses, and fees, including
court costs and reasonable attorneys' fees and expenses, in each
case, net of any insurance proceeds received in respect thereof;
including without limitation punitive, special or consequential or
opportunity cost damages of any kind or the loss of anticipated or
future business profits.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event,
incident, action, failure to act, or transaction that forms or could
reasonably form the basis for any specified consequence.
"Client Service Agreement" means each contract between a Company,
on the one hand, and a client, on the other hand, pursuant to which
such Company provides PEO Services to such client.
"Governmental Body" means any federal, state, local, municipal,
foreign or other government or any governmental or quasi-governmental
authority of any nature (including any agency, branch, department,
board, commission, court, tribunal or other entity exercising
governmental or quasi-governmental powers).
"Knowledge" means actual knowledge and with respect to the
Seller, such knowledge after due inquiry.
"Labor Claims" means claims based on an employment relationship
or termination of an employment relationship.
"Legal Requirement" means any federal, state, local, municipal,
foreign, international, multinational or other constitution, law,
ordinance, principle of law, code, regulation, statute or treaty.
"Liability" means any liability (whether known or unknown,
asserted or unasserted, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated, or due or to become due), including any
liability for Taxes.
"PEO Services" means the services provided by the Company to its
clients under Client Service Agreements as part of the PEO Business.
12
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization, or a
Governmental Body.
"Representative" with respect to a particular Person, any
director, officer, manager, employee, agent, consultant, advisor,
accountant, financial advisor, legal counsel or other representative
of such Person.
"Security Interest" means any mortgage, pledge, lien,
encumbrance, charge, or other security interest.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes
under Code Section 59A), customs duties, capital stock, franchise,
profits, withholding, social security (or similar), unemployment,
disability, real property, personal property, sales, use, transfer,
registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any
amendment thereof.
"Transferred Client" and "Transferred Clients" means individually
and collectively each client who is party to a Client Service
Agreement with Seller.
"Worksite Employees" means the employees of the Company's clients
who by reason of the Client Service Agreements are also employed by
the Company.
13
Schedule 2.02 - Assumed liabilities
1. Promissory Note between Seller and Xxxxxxxx Xxxxxxx in the
amount of $2,204,927
2. Aggregate State and Federal tax obligations of the Companies in
the amount of $1,730,532
3. Settlement agreements in the aggregate amount of $306,000
14
Schedule 3.05 - Brokered Accounts
[intentionally deleted]
Schedule 3.09 - The Companies
American Staff Resources Corporation
American Staff Resources Corp. I
American Staff Resources Corp. IV
Certified HR Solutions Co.
Certified HR Services Company III
Certified HR Services Company IV
Certified HR Services Company V
Certified HR Services Company VI
Certified HR Holdings, Inc.
Vanguard Management Services, Inc.
Premier Employee Solutions, Inc. [51%]
Certified Transportation Services, Inc.
15
Exhibit 2.02 - Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT
O2 HR, LLC ("Assignee") hereby assumes responsibility for the
obligations (and rights, if applicable) of Certified Services, Inc.
("Assignor") under the agreements and instruments set forth in
Schedules 2.02 and the rights associated with the Brokered Accounts
set forth in Schedule 3.05 of the Purchase Agreement between them
dated the date hereof (the "Agreement"), in partial consideration of
the purchase price paid by Assignee to Assignor under the Agreement.
There shall be no third party beneficiaries to this Agreement.
Dated: September 2, 2005
O2 HR, LLC
BY: /s/ Xxxxxx Xxxx
--------------------------
Xxxxxx Xxxx, Manager
CERTIFIED SERVICES, INC.
BY: /s/ Xxxxx Xxxxxx
---------------------------
Xxxxx Xxxxxx, President
16
