Exhibit 2.1
ASSET PURCHASE AGREEMENT
By and among
RESOLVE STAFFING, INC.,
TRUCKERS PLUS LEASING, INC.,
and
THE SHAREHOLDER
Of
TRUCKERS PLUS LEASING, INC.,
As of August 15, 2005
This ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into
effective as of August 15, 2005, by and among (i) Resolve Staffing, Inc., a
Nevada corporation (the "Buyer"), (ii) Truckers Plus Leasing, Inc., a Tennessee
corporation (the "Seller"), and (iii) Xxxxxx Xxxxxxx, the holder of all of the
issued and outstanding common stock of the Seller (the "Stockholder").
Preliminary Statements
A. The Board of Directors of the Seller and the Stockholder deem it
advisable for their welfare and best interests that the Seller sell and the
Buyer purchase all of assets of Seller, upon the terms and subject to the
conditions hereinafter set forth.
B. Capitalized terms used herein but not defined herein shall have the
respective meanings given such terms in Article IX and elsewhere in this
Agreement.
Agreement
In consideration of the premises, mutual covenants and agreements contained
herein and the benefits to accrue to the parties hereto, and subject to the
satisfaction or waiver of the conditions contained herein, the parties hereto
hereby agree as follows:
ARTICLE I.
SALE AND PURCHASE OF ASSETS
Section 1.01 Assets to be Acquired. At the Closing, Seller shall sell,
convey, assign, transfer and deliver to Buyer, free and clear of any Liens, and
Buyer shall purchase, acquire, accept and pay for, all of Seller's right, title
and interest in and to all of the properties, assets and other rights (excluding
the Excluded Assets), personal or mixed, tangible or intangible, owned or leased
by or licensed to Seller on the Closing Date (collectively, the "Assets"),
including but not necessarily limited to the Assets set forth on Schedule 1.01.
The Assets shall include the following:
(a) All Seller's fixed assets, furniture, equipment, fixtures, and
software;
(b) All contracts, contract rights, agreements, commitments or other
arrangements for which Seller receives any benefit or to which Seller is a party
(collectively, the "Contracts");
(c) All client lists, client files, computer files and records of
Seller, including lists and electronic databases of Seller's temporary
employees;
(d) To the extent transferable under applicable law, all Seller's
franchises, approvals, permits, licenses, orders, registrations, certificates
and variances;
(e) All Proprietary Rights (as defined in Section 3.08 below);
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(f) Any and all non-compete agreements between Seller and any
employee or agent of Seller acting on behalf of Seller;
(g) All telephone, fax and e-mail numbers and addresses and
listings; and
(h) All rights, actions and claims against third parties arising out
of or related to other assets.
Section 1.02 Excluded Assets. Seller's accounts receivable as of August
12, 2005 (the "Excluded Assets") shall be excluded from the Assets and retained
by Seller.
Section 1.03 Assumption of Liabilities.
(a) Buyer hereby assumes such liabilities as are owed as of the
Closing Date by Seller to Employee Leasing Services, Inc., an Ohio corporation,
under that certain Client Service Agreement dated February 23, 2005 and such
other liabilities are associated with the Contracts (the "Assumed Liabilities").
(b) Buyer assumes no other liabilities of Seller except as
specifically set forth in this Agreement. In order to preserve for Buyer the
opportunity to maintain good relations with vendors, suppliers, trade creditors,
clients and employees of Seller, Seller agrees to pay or otherwise satisfy and
discharge in accordance with their terms all of the liabilities other than the
Assumed Liabilities that are owed to third parties. Seller may contest any such
liability or otherwise negotiate terms for the payment of such liabilities
provided such contest or negotiation shall not result in any Lien on any Asset
or materially or adversely interfere with Buyer's operations of the Assets
following the Closing.
Section 1.04 Purchase Price; Allocation of Purchase Price.
(a) Purchase Price. The purchase price (the "Purchase Price") shall
be as follows:
(i) $1, which Buyer shall pay at Closing in cash;
(ii) Buyer shall issue to each of the Stockholder and to Xxx
Xxxxxx ("Xxxxxx") 50,000 shares of common stock, par value
$0.0001 per share, of Buyer (the "Shares"). The Shares shall
be deemed to be "restricted securities" as defined in Rule
144(a)(3) promulgated under the Securities Act of 1933 (the
"Securities Act"); and
(iii) Buyer shall assume such liabilities as are owed as of
the Closing Date by Seller to Employee Leasing Services, Inc.,
an Ohio corporation, under that certain Client Service
Agreement dated February 23, 2005.
(b) Allocation of Purchase Price. The Purchase Price shall be
allocated among the Assets as set forth on Exhibit A hereto. Within sixty (60)
days after the Closing, each party agrees to complete Internal Revenue Service
Form 8594, Asset Acquisition Statement under Section 1060, consistent with the
Purchase Price allocation. Buyer, Stockholder, and Seller hereby covenant and
agree that they will not take a position on any income tax return before any
Governmental Authority charged with the collection of any income tax or in any
judicial proceeding that is in any way inconsistent with the terms of this
Section 1.04.
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ARTICLE II.
CLOSING
Section 2.01 Closing. The closing of the transactions contemplated hereby
(the "Closing") shall be held at 1:00 p.m., Eastern Standard Time, on August 17,
2005 (the "Closing Date") at the offices of the Buyer at 0000 Xxxx Xxxxx,
Xxxxxxxxxx, XX 00000 or on such other date and/or at such other place as is
agreed to by the parties hereto. The date upon which the Closing occurs is
hereinafter referred to as the "Closing Date." The Closing shall be deemed
completed as of 11:59 p.m. Eastern Standard Time on and as of August 15, 2005
(the "Effective Date").
Section 2.02 Deliveries by Seller. At the Closing, Seller shall deliver to
Buyer:
(a) an executed xxxx of sale in the form of Exhibit B hereto (the
"Xxxx of Sale") and other instruments of transfer and conveyance reasonably
deemed necessary or appropriate by Buyer to convey the Assets to Buyer as of the
Effective Date, all in form and substance reasonable satisfactory to Buyer;
(b) an assignment and assumption agreement in the form of Exhibit C
(the "Assignment and Assumption Agreement") and other instruments deemed
necessary or appropriate by Buyer regarding the assignment and of all contracts
included in the Assets and the assumption of the Assumed Liabilities executed by
Seller;
(c) a certificate of the Secretary of the Seller certifying, as
complete and accurate as of the Closing, as to actions taken by Seller's
directors and the Stockholder approving the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby;
(d) a certificate of good standing of Seller issued by the Secretary
of State of Tennessee dated no more than 7 days before the Closing;
(e) employment agreements in the form of Exhibit D hereto (the
"Employment Agreement"), executed by the Stockholder and Xxxxxx, respectively,
and Buyer; and
Section 2.03 Deliveries by Buyer. At the Closing, Buyer shall deliver to
the Seller:
(a) the payment described in Section 1.04(a)(i) as being required to
be paid by Buyer at the Closing;
(b) a certified copy of all necessary corporate action on behalf of
Buyer approving its execution, delivery and performance of this Agreement;
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(c) the Assignment and Assumption Agreement referenced in Section
2.02(b) hereof executed by Buyer;
(d) stock certificates representing the Shares; and
(e) the Employment Agreements referenced in Section 2.02(e) hereof,
executed by Buyer.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER AND THE STOCKHOLDER
Subject to the limitations of Section 6.04 hereof, the Seller and the
Stockholder, jointly and severally, represent and warrant to Buyer as of the
Closing Date as set forth in this Article:
Section 3.01 Corporate Existence and Qualification. Seller is a
corporation duly organized and validly existing under the laws of Tennessee, and
is not required to be qualified to do business as a foreign corporation in any
other jurisdiction where the failure to so qualify would have a Material Adverse
Effect. Seller has all requisite corporate power and authority to own its Assets
and carry on its business as presently conducted. The copies of the Articles of
Incorporation and Bylaws of Seller attached as Schedule 3.01 are complete and
reflect all amendments thereto through the date hereof.
Section 3.02 No Seller Defaults or Consents. Except as set forth on
Schedule 3.02, neither the execution and delivery of this Agreement nor the
carrying out of the transactions contemplated hereby will:
(a) violate or conflict with any of the terms, conditions or
provisions of the Articles of Incorporation or Bylaws of the Seller;
(b) violate any Legal Requirements applicable to the Seller;
(c) result in the creation of any Lien, charge or other encumbrance
on any of the Assets; or
(d) require the Stockholder or the Seller to obtain or make any
waiver, consent, action, approval or authorization of, or registration,
declaration, notice or filing with, any private non-governmental third party or
any Governmental Authority.
Section 3.03 No Proceedings. No suit, action or other proceeding is
pending or, to the Knowledge of the Stockholder, threatened before any
Governmental Authority seeking to restrain Seller or the Stockholder or prohibit
their entry into this Agreement or prohibit the Closing, or seeking damages
against Seller or its Assets, as a result of the consummation of the
transactions contemplated by this Agreement.
Section 3.04 Title to the Shares. Except for the Lien arising from that
certain Stock Pledge Agreement dated August 12, 2005 between the Stockholder and
ELS Human Resource Solutions, Inc., an Ohio corporation, as of the Closing Date
the Stockholder owns beneficially and of record, free and clear of any Lien,
option or other encumbrance, all of the issued and outstanding shares of stock
in Seller.
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Section 3.05 Employee Matters.
(a) Schedule 3.05 contains a complete and accurate list of the
names, titles and compensation of all employees of Seller (other than Seller's
temporary employees who are hired to be assigned to work for customers)
(collectively, the "Section 3.05 Employees"). In addition, Schedule 3.05
contains a complete and accurate description of any promised increases in
compensation of the Section 3.05 Employees that have not yet been effected.
Seller shall also specify in Schedule 3.05 whether any Section 3.05 Employee has
executed a non-competition or non-disclosure agreement with Seller, and Seller
shall attach to Schedule 3.05 copies of any such agreements.
(b) Attached hereto as part of Schedule 3.05 is a copy of each
written employment agreement entered into between Seller and its Section 3.05
Employees (the "Section 3.05 Employment Agreements").
(c) To the Knowledge of Seller and the Stockholder, no unwritten
material amendments have been made, whether by oral communication, pattern of
conduct or otherwise, with respect to the Section 3.05 Employment Agreements or
employee policies and procedures in effect.
(d) Seller (i) has been and is in material compliance with all laws,
rules, regulations and ordinances respecting employment and employment
practices, terms and conditions of employment and wages and hours, and (ii) is
not liable in any material amount for any arrears of wages or penalties for
failure to comply with any of the foregoing. Seller has not engaged in any
unfair labor practice or discriminated on the basis of race, color, religion,
sex, national origin, age or handicap in its employment conditions or practices.
There are no (A) unfair labor practice charges or complaints or racial, color,
religious, sex, national origin, race or handicap discrimination charges or
complaints pending or, to the knowledge of the Stockholder, threatened against
Seller before the National Labor Relations Board or any similar state or foreign
commission or agency or (B) existing or threatened material labor strikes,
disputes, grievances or controversies against Seller or any of its respective
employees.
(e) Seller is not and has not been a party to any agreement with any
union, labor organization or collective bargaining unit. No employee of Seller
is represented by any union, labor organization or collective bargaining unit.
To the Knowledge of Seller and the Stockholder, no remaining employees of Seller
have threatened to organize or join a union, labor organization or collective
bargaining unit.
(f)
(i) At Closing, Buyer shall have no legal obligation to assume
any obligations of Seller under any employment contract or other employment
relationship to which Seller is a party other than those expressly assumed by
Buyer under this Agreement. Except as otherwise stated in Section 3.05(f)(ii)
below, Buyer shall have no legal obligation to hire or employ any Section 3.05
Employees; however, if Buyer desires to hire any such Section 3.05 Employee,
Seller will take no action to interfere with Buyer's efforts to hire such
employee. Buyer shall have no obligation or liability to any Section 3.05
Employee who refuses, for any reason, any offer of employment made to such
employee by Buyer. Seller has paid in full, or will pay, to all employees of
Seller, in the normal course of its operations, all wages, salaries,
commissions, bonuses and other direct compensation for remuneration for all
services performed by them. Upon Closing and upon termination of the employment
of any of said employees by Seller, Buyer will not be liable to any of said
employees for severance pay, unused paid time off or any other payments.
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(ii) Buyer agrees to hire, for a transitional period to be
determined in Buyers sole discretion, the following employees of Seller: Xxxxx
Xxxxxxxx, Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx and Xxxxxx Xxxxxx. Such employees will
be employed by Buyer on substantially similar terms as they are currently
employed by Seller. Upon the termination of the transitional period, Buyer shall
have no further obligation to retain such employees. In the event that Buyer
chooses to terminate such employees upon the termination of the transitional
period, Buyer agrees to pay each such terminated employee one month's salary as
severance pay. However, in the event that Buyer offers such employees continued
employment with Buyer, whether or not in the same capacity as they have been
serving, and such employees refuse such offer, then Buyer may terminate such
employees and shall have no obligation to make any severance payment or extend
any other benefits after the effective date of the respective employee's
termination.
Section 3.06 Employee Benefit Matters.
(a) Schedule 3.06 contains a complete and accurate list of all
Employee Benefit Plans sponsored by Seller or an ERISA Affiliate or to which
Seller or an ERISA Affiliate contributes on behalf of its employees. No
unwritten amendment exists with respect to any Employee Benefit Plan. For
purposes of this Agreement an "Employee Benefit Plan" means each employee
benefit plan, as such term is defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") maintained by Seller or an
ERISA Affiliate; provided, however, that with respect to the representations and
warranties set forth in subsection (b) of this Section, "Employee Benefit Plan"
shall exclude any and all "multiemployer plans" within the meaning of Section
3(37) of ERISA. For purposes of this Agreement, an "ERISA Affiliate" means any
corporation who is a member of a controlled group of corporations (as defined in
Code ss.414(b)) that includes Seller, any trades or businesses (whether or not
incorporated) which are under common control (as defined in Code ss.414(c)) with
Seller, any entity that is a member of an affiliated service group (as defined
in Code ss.414(m)) that includes Seller, or any other entity that is an
arrangement described in Code ss.414(o) that include the Seller.
(b) Except as set forth on Schedule 3.06, each Employee Benefit Plan
has been administered and maintained in compliance with all laws, rules and
regulations. No Employee Benefit Plan is currently the subject of an audit,
investigation, enforcement action or other similar proceeding conducted by any
state or federal agency. No prohibited transaction (within the meaning of
Section 4975 of the Internal Revenue Code of 1986, as amended, and the
regulations promulgated thereunder (the "Code")) has occurred with respect to
any Employee Benefit Plan. No pending or, to the Knowledge of the Stockholder,
threatened, claims, suits or other proceedings exist with respect to any
Employee Benefit Plan other than normal benefit claims filed by participants or
beneficiaries. All contractual obligations relating to the Plans listed in
Schedule 3.06 are terminable by Seller with no more than 30 days notice and
without cause or penalty. All required contributions to, and premium payments on
account of, each Employee Benefit Plan have been made on a timely basis. The
consummation of the transactions contemplated under this Agreement will not, by
itself or together with any other event, increase the amount of or accelerate
the vesting or payment of any benefit under any Employee Benefit Plan or
Employment Agreement.
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(c) Neither Seller nor any ERISA Affiliate has maintained,
contributed to or otherwise participated in, or has any liability or obligation
with respect to, any multiemployer plan within the meaning of Section 3(37) of
ERISA.
Section 3.07 Absence of Certain Changes. Except as set forth in Schedule
3.07, from July 1, 2005 to the date of this Agreement, Seller has not:
(a) suffered any Material Adverse Change, whether or not caused by
any deliberate act or omission of Seller or the Stockholder, in its condition
(financial or otherwise), operations, assets, liabilities or business;
(b) contracted for the purchase of any capital assets having a cost
in excess of $5,000 or paid any capital expenditures in excess of $5,000, except
in the ordinary course of business consistent with past practice;
(c) incurred any indebtedness for borrowed money or issued or sold
any debt securities, except in the ordinary course of business consistent with
past practice which shall be satisfied at Closing;
(d) incurred or discharged any liabilities or obligations except in
the ordinary course of business consistent with past practice;
(e) paid any amount on any indebtedness prior to the due date,
forgiven or canceled any debts or claims or released or waived any rights or
claims, except in the ordinary course of business consistent with past practice;
(f) mortgaged, pledged or subjected to any security interest, Lien,
lease or other charge or encumbrance any of the Assets;
(g) suffered any damage or destruction to or loss of the Assets
(whether or not covered by insurance) that has materially adversely affected, or
could materially adversely affect, its business;
(h) acquired or disposed of any Assets except in the ordinary course
of business consistent with past practice;
(i) increased the compensation of any Section 3.05 Employee except
in accordance with Schedule 3.05;
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(j) made any payments to any person or entity except in the ordinary
course of business consistent with past practice or loaned any money to any
person or entity that is not reflected in Seller's financial statements as
disclosed to buyer;
(k) formed or acquired or disposed of any interest in any
corporation, partnership, joint venture or other entity;
(l) redeemed, purchased or otherwise acquired, or sold, granted or
otherwise disposed of, directly or indirectly, any of its capital stock or
securities or any rights to acquire such capital stock or securities, or agreed
to change the terms and conditions of any such rights or paid any dividends or
made any distribution to the holders of the Seller's capital stock;
(m) entered into or terminated any material agreement with any
person or group, or modified or amended in any material respect the terms of any
existing agreement except in the ordinary course of business consistent with
past practice;
(n) entered into, adopted or amended any Employee Benefit Plan;
(o) received any indication from any customer or supplier that it
intends to discontinue or change the terms of its relationship with Seller;
(p) materially changed its accounting methods; or
(q) entered into any agreement (written or oral) to do any of the
foregoing.
Section 3.08 Patents, Trade-marks, Service Marks and Copyrights.
(a) Seller owns all patents, trade-marks, service marks and
copyrights (collectively "Proprietary Rights"), if any, necessary to conduct its
business, or possesses adequate licenses or other rights (except for licenses
for the use of non-customized software), if any, therefor, without conflict with
the rights of others.
(b) Seller has the sole and exclusive right to use the Proprietary
Rights without infringing or violating the rights of any third parties. Use of
the Proprietary Rights does not require the consent of any other person and the
Proprietary Rights are freely transferable. No claim has been asserted by any
person to the ownership of or right to use any Proprietary Right or challenging
or questioning the validity or effectiveness of any license or agreement
constituting a part of any Proprietary Right. Each of the Proprietary Rights is
valid and subsisting, has not been canceled, abandoned or otherwise terminated
and, if applicable, has been duly issued or filed.
Section 3.09 Title to Assets; Condition of Assets.
(a) Seller owns no real property.
(b) Except as disclosed on Schedule 3.09, Seller has good and
marketable title to the Assets (other than those disposed of in the ordinary
course of business), free and clear of all Liens, except for Liens for taxes not
yet due and payable or being contested in good faith in appropriate proceedings.
All facilities, machinery, equipment, fixtures, vehicles and other properties
owned, leased or used by Seller are in good operating condition and repair,
normal wear and tear excepted, are adequate and sufficient for the business of
Seller and conform in all material respects with all applicable ordinances,
regulations and laws relating to their use and operation.
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(c) Except as disclosed in Schedule 3.09, the Stockholder has no
interest in any of the Assets except for salary, and the Stockholder has no
financial interest in any transaction of Seller.
Section 3.10 Compliance with Laws. Seller has all material franchises,
Permits, licenses and other rights and privileges necessary to permit it to own
its Assets and to conduct its businesses as presently conducted. The business
and operations of Seller have been and are being conducted in all material
respects in accordance with all applicable laws, rules and regulations, and
Seller is not in violation of any judgment, law or regulation except where any
such violation could not reasonably be expected to have a Material Adverse
Effect. Seller has not received any notice from any Governmental Authority or
any other person or entity regarding any actual, alleged or potential violation
or failure to comply with any Legal Requirement. Schedule 3.10 contains a
complete and accurate list of all Permits, licenses, and registrations held by
Seller or related to Seller's Driver Leasing Business
Section 3.11 Litigation; Default. There are no claims, actions, suits,
investigations or proceedings against Seller pending or, to the Knowledge of
Seller or the Stockholder, threatened in any court or before or by any
Governmental Authority, or before any arbitrator, other than worker's
compensation claims that are covered by Seller's workers compensation insurance.
Section 3.12 Customers. Except as otherwise set forth in Schedule 3.12,
since August 1, 2005, there has been no Material Adverse Change in the business
relationship of Seller with any customer. No customer has terminated or
materially altered, or notified Seller in writing of any intention to terminate
or materially alter, its relationship with Seller.
Section 3.13 Other Transactions. Except as contemplated by this Agreement,
neither Seller nor the Stockholder has entered into any agreement or arrangement
and there are no pending offers or discussions concerning or providing for the
merger or consolidation of Seller, the sale of all or any substantial portion of
its Assets, the sale by the Stockholder of any securities of Seller or any
similar transaction affecting Seller or the Stockholder.
Section 3.14 Financial Statements. Attached as Schedule 3.14 are true,
correct, and complete copies of the Company's (i) un-audited income statement
and balance sheet for the fiscal year ended December 31, 2004, (ii) un-audited
balance sheet as of August 15, 2005 and (iii) un-audited income statement and
balance sheet as of and for the three months ended August 15, 2005 (the "Balance
Sheet Date"). All of such statements (collectively the "Company Financial
Statements") (i) have been prepared consistently with past practices and from
the books and records of the Company, and (ii) present fairly the financial
condition of the Company and its results of operations as at and for the
respective periods then ended.
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Section 3.15 Tax Matters.
(a) Except as set forth in Schedule 3.15 hereto:
(i) Seller has timely filed all federal income Tax Returns,
and all other material Tax Returns which it is required to file under applicable
laws and regulations;
(ii) all such Tax Returns are true and accurate in all
material respects;
(iii) Seller has withheld and paid over to the appropriate
taxing authority all Taxes which it is required to withhold from amounts paid or
owing to any employee, the Stockholder, creditor or other third party;
(iv) Seller currently is not the beneficiary of any extension
of time within which to file any Tax Return.
(b) To the Knowledge of Seller or the Stockholder, Seller has not
received notice of a claim by a taxing authority in a jurisdiction where Seller
does not file Tax Returns that Seller is or may be subject to taxation by that
jurisdiction.
(c) (i) there are no foreign, federal, state or local Tax audits
or administrative or judicial proceedings pending or being conducted with
respect to Seller;
(ii) no information related to Tax matters has been requested
by any foreign, federal, state or local taxing authority and no written notice
indicating an intent to open an audit or other review has been received by
Seller from any foreign, federal, state or local taxing authority; and
(iii) there are no material unresolved claims concerning
Seller's Tax liability.
(d) Seller is an S corporation as defined in Code Section 1361, and
Seller is not and has not been subject to either the built-in gains tax under
Code Section 1374 or the passive income tax under Code Section 1375.
Section 3.16 Authority to Execute and Perform Agreement. (a) The
Stockholder has the full legal right and power and all authority and approval
required to enter into, execute and deliver this Agreement and each other
agreement to which the Stockholder is a party and to perform fully the
Stockholder's obligations hereunder and thereunder. This Agreement and each
other agreement to which the Stockholder is a party has been duly executed and
delivered by the Stockholder and is a valid and binding obligation of the
Stockholder enforceable in accordance with its terms, except as such
enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, and except as the availability of equity remedies
may be limited by the application of general principles of equity (regardless of
whether such equitable principles are applied in a proceeding at law or in
equity). The execution and delivery by the Stockholder of this Agreement and
each other agreement to which the Stockholder is a party and the performance by
the Stockholder of this Agreement and each other agreement to which the
Stockholder is a party in accordance with their terms and conditions will not
(i) require the approval or consent of any foreign, federal, state, county,
local or other governmental or regulatory body or the approval or consent of any
other person; or (ii) conflict with or result in any breach or violation of any
of the terms and conditions of, or constitute (or with notice or lapse of time
or both constitute) a default under, any statute, regulation, order, judgment or
decree applicable to the Stockholder or to the shares of stock held by the
Stockholder, or any instrument, contract or other agreement to which the
Stockholder is a party or by or to which the Stockholder is or the shares of
stock held by the Stockholder are bound or subject.
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(b) Seller has the full corporate right and power and all authority
and approval required to enter into, execute and deliver this Agreement and to
perform fully such Seller's obligations hereunder. This Agreement has been duly
executed and delivered by Seller and is a valid and binding obligation of Seller
enforceable in accordance with its terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally, and
except as the availability of equity remedies may be limited by the application
of general principles of equity (regardless of whether such equitable principles
are applied in a proceeding at law or in equity). The execution and delivery by
Seller of this Agreement and the performance by Seller of this Agreement in
accordance with its terms and conditions will not (i) require the approval or
consent of any foreign, federal, state, county, local or other governmental or
regulatory body or the approval or consent of any other person; or (ii) conflict
with or result in any breach or violation of any of the terms and conditions of,
or constitute (or with notice or lapse of time or both constitute) a default
under, any statute, regulation, order, judgment or decree applicable to Seller
or any instrument, contract or other agreement to which Seller is a party or by
or to which Seller is bound or subject.
Section 3.17 No Stockholder Defaults or Consents. The execution and
delivery of this Agreement by the Stockholder and the performance by the
Stockholder of her obligations hereunder will not violate any provision of law
or any judgment, award or decree or any indenture, agreement or other instrument
to which the Stockholder is a party.
Section 3.18 Contracts. Except as set forth in Schedule 3.09, the
Stockholder has no, nor may she acquire any rights under, any contract or
agreement that relates to Seller's business or any of the Assets. Each Contract
and other agreement to which Seller is a party is in full force and effect,
valid and enforceable in accordance with its terms. To the Knowledge of Seller
or the Stockholder, Seller is in compliance in all material respects with the
terms of all Contracts and no event has occurred that (with or without notice or
lapse of time) may contravene, conflict with or result in a breach of any
Contract.
Section 3.19 Securities Matters. Each of the Stockholder and Xxxxxx
represents and warrants to Buyer that, with respect to the Shares to be issued
pursuant to Section 1.04(a)(ii) above:
(a) The Shares will be acquired by the Stockholder and Xxxxxx for
his or her own account, not as a nominee or agent, for investment and without a
view to resale or other distribution within the meaning of the Securities Act,
and neither the Stockholder nor Xxxxxx shall distribute or transfer any of the
Shares in violation of the Securities Act;
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(b) Neither the Stockholder nor Xxxxxx has any agreement,
arrangement or understanding for transfer of any of the Shares or any interest
therein;
(c) Each of the Stockholder and Xxxxxx (i) acknowledges that the
Shares to be issued pursuant to Section 1.04(a)(ii) above are "restricted
securities" under the Securities Act, are not registered under the Securities
Act and must be held indefinitely by the Stockholder and Xxxxxx unless the
Shares are subsequently registered under the Securities Act or an exemption from
registration is available, (ii) is aware that any routine sales of the Shares
made under Rule 144 of the Securities and Exchange Commission under the
Securities Act may be made only in limited amounts and in accordance with the
terms and conditions of that Rule and that in such cases where the Rule is not
applicable, registration or compliance with some other registration exemption
will be required, (iii) is aware that Rule 144 is not now and for a period of at
least one year following the Closing Date, if not more, will not be, available
for use by the Stockholder or Xxxxxx for resale of the Shares, and (iv) is aware
that Buyer is not obligated to register any sale, transfer or other disposition
of the Shares;
(d) Each of the Stockholder and Xxxxxx is aware that no market may
exist for resale of the Shares;
(e) Each of the Stockholder and Xxxxxx (i) has been given or had
access to sufficient information regarding Buyer and have such knowledge and
experience in financial and business matters, or has the advice or
representation of a person having such knowledge and experience, to be able to
evaluate the merits and risks of an investment in the Shares, (ii) understands
the nature of the investment in the Shares and is able to bear the economic risk
of the investment in the Shares, which may include a total loss of his or her
investment, and is able to hold the same for purposes of investment despite such
risk, and (iii) is familiar with the business and financial matters of Buyer;
and
(f) Each of the Stockholder and Xxxxxx acknowledges and agrees that
the certificates representing the Shares issuable to the Stockholder and Xxxxxx
will contain a restrictive legend noting the restrictions on transfer described
in this Section and under federal and applicable state securities laws, and that
appropriate "stop-transfer" instructions will be given to Buyer's stock transfer
agent.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Stockholder and Seller as of the Closing
Date that:
Section 4.01 Corporate Existence and Qualification; Corporate Documents.
Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Nevada, and is not required to be qualified to do
business as a foreign corporation in any other jurisdiction where the failure to
so qualify would have a material adverse effect on Buyer. Buyer has all required
corporate power and authority to own its properties and to carry on its business
as presently conducted.
12
Section 4.02 Authority, Approval and Enforceability. This Agreement has
been duly executed and delivered by Buyer and Buyer has all requisite corporate
power and legal authority to execute and deliver this Agreement, to consummate
the transactions contemplated hereby, and to perform its obligations hereunder.
This Agreement will constitute the legal, valid and binding obligation of Buyer,
enforceable in accordance with its terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally, and
except as the availability of equity remedies may be limited by the application
of general principles of equity (regardless of whether such equitable principles
are applied in a proceeding at law or in equity).
Section 4.03 No Defaults or Consents. Neither the execution and delivery
of this Agreement nor the carrying out of the transactions contemplated hereby
will:
(a) violate or conflict with any of the terms, conditions or
provisions of the Articles of Incorporation or Bylaws of Buyer;
(b) violate any Legal Requirements applicable to Buyer;
(c) result in the creation of any Lien, charge or other encumbrance
on the membership interests or any Property of Buyer; or
(d) require Buyer to obtain or make any waiver, consent, action,
approval or authorization of, or registration, declaration, notice or filing
with, any private non-governmental third party or any Governmental Authority
Section 4.04 No Proceedings. No suit, action or other proceeding is
pending or, to the Knowledge of the Buyer, threatened before any Governmental
Authority seeking to restrain Buyer or prohibit its entry into this Agreement or
prohibit the Closing, or seeking damages against Buyer or its Properties, as a
result of the consummation of the transaction contemplated by this Agreement.
ARTICLE V.
SURVIVAL
Section 5.01 Survival of Representations and Warranties. Notwithstanding
any right of any party hereto fully to investigate the affairs of any other
party hereto and notwithstanding any knowledge of facts determined or
determinable by any party hereto pursuant to such investigation or right of
investigation, each of Buyer, on the one hand, and Seller and Stockholder, on
the other hand, has the right to rely fully upon the representations,
warranties, covenants and agreements of Buyer and Seller and the Stockholder, as
the case may be, contained in this Agreement, or in any certificate delivered
pursuant to any of the foregoing; provided, that no party hereto shall be
entitled to rely on any representation or warranty made by any other party
hereto herein to the extent that such party has actual knowledge that such
representation or warranty is untrue or incorrect in any material respect. All
such representations and warranties shall survive the execution and delivery of
this Agreement and the Closing hereunder, and, except as otherwise specifically
provided in this Agreement, shall thereafter terminate and expire at the end of
the twenty fourth (24th) month following the Closing Date, subject to the
limitations on indemnification set forth in Section 6.04 hereof. Notwithstanding
the foregoing, the representations and warranties set forth in Sections 3.01,
3.09, 3.15, 3.19, 4.01 and 4.02, and all covenants and agreements, shall survive
indefinitely and shall not terminate or expire.
13
ARTICLE VI.
INDEMNIFICATION
Section 6.01 Obligation of the Seller and the Stockholder to Indemnify.
Subject to the limitations contained in Article V and Section 6.04 hereof,
Seller and the Stockholder, jointly and severally, agree to indemnify, defend
and hold harmless Buyer (and its Affiliates, successors and assigns and their
respective officers and directors) from and against all losses, liabilities,
damages, deficiencies, costs or expenses (including interest, penalties and
reasonable attorneys' fees and disbursements, but offset by any proceeds from
insurance and taking into account the present value of any tax savings to Buyer
or Seller resulting from such losses, liabilities, damages, deficiencies, costs
or expenses) ("Losses") based upon, arising out of or otherwise in respect of
(i) any inaccuracy in or any breach of any representation, warranty, covenant or
agreement of Seller or the Stockholder contained in this Agreement, (ii) any
account payable of Seller accrued through or for services rendered prior to the
Closing Date, whether or not set forth in Seller's financial statements provided
to Buyer, including, without limitation, all insurance payments, (iii) any and
all Taxes due and owing (A) for all taxable periods ending on or before the
Closing Date or (B) that are attributable to gain from sale of the Assets, (iv)
any liability of Seller that is not an Assumed Liability, or (v) the operation
of Seller's Driver Leasing Business prior to the Closing.
Section 6.02 Obligation of Buyer to Indemnify. Subject to the limitations
contained in Article V and Section 6.04 hereof, Buyer agrees to indemnify,
defend and hold harmless Seller and the Stockholder from and against any Losses
based upon, arising out of or otherwise in respect of any inaccuracy in or any
breach of any representation, warranty, covenant or agreement of Buyer contained
in this Agreement.
Section 6.03 Notice and Opportunity to Defend.
(a) Notice of Asserted Liability. Promptly after receipt by any
party hereto (the "Indemnitee") of notice of any demand, claim or circumstance
which, with the lapse of time, would or might give rise to a claim or the
commencement (or threatened commencement) of any action, proceeding or
investigation (an "Asserted Liability") that may result in a Loss, the
Indemnitee shall give notice thereof (the "Claims Notice") to any other party
(or parties) obligated to provide indemnification pursuant to Section 6.01 or
6.02 (the "Indemnifying Party"). The Claims Notice shall describe the Asserted
Liability in reasonable detail and shall indicate the amount (estimated, if
necessary and to the extent feasible) of the Loss that has been or may be
suffered by the Indemnitee.
14
(b) Opportunity to Defend. The Indemnifying Party may elect to
compromise or defend, at its own expense and by its own counsel, any Asserted
Liability. If the Indemnifying Party elects to compromise or defend such
Asserted Liability, it shall within thirty (30) days (or sooner, if the nature
of the Asserted Liability so requires) notify the Indemnitee of its intent to do
so, and the Indemnitee shall cooperate, at the expense of the Indemnifying
Party, in the compromise of, or defense against, such Asserted Liability at the
sole cost of the Indemnifying Party. If the Indemnifying Party elects not to
compromise or defend the Asserted Liability, fails to notify the Indemnitee of
its election as herein provided or contests its obligation to indemnify under
this Agreement, the Indemnitee may pay, compromise or defend such Asserted
Liability. Notwithstanding the foregoing, neither the Indemnifying Party nor the
Indemnitee may settle or compromise any claim over the objection of the other,
provided, however, that consent to settlement or compromise shall not be
unreasonably withheld. In any event, the Indemnitee and the Indemnifying Party
may participate (but not control), at their own expense, in the defense of such
Asserted Liability. If the Indemnifying Party chooses to defend the claim, the
Indemnitee shall make available to the Indemnifying Party any books, records or
other documents within its control that are necessary or appropriate for such
defense.
Section 6.04 Limitations on Indemnification. The indemnification provided
for in Sections 6.01 and 6.02 shall be subject to the following limitations:
(a) Neither Seller nor the Stockholder shall be obligated to pay any
amounts for indemnification under this Article VI arising out of any Losses
based upon, arising out of or otherwise in respect of any inaccuracy or breach
disclosed in writing to Buyer and specifically waived in writing by Buyer prior
to the Closing.
(b) After the Closing, the indemnification rights set forth in this
Article VI shall be each party's sole and exclusive remedy against the other
party for any breach of any representation, warranty or covenant contained in
this Agreement. Notwithstanding the foregoing, nothing herein shall prevent any
party from bringing an action based upon allegations of fraud in connection with
this Agreement.
Section 6.05 Guarantee of Indemnification Obligations. Xxxxxx agrees to
unconditionally guarantee the full and prompt payment of any and all amounts
owed to Buyer by Seller and Stockholder by virtue of Seller's and Stockholder's
indemnification obligations pursuant to Section 6.01 of this Agreement (the
"Obligations"). Upon any default by Seller or Stockholder in the payment to
Buyer of any of the Obligations, Buyer may, at its sole election, proceed
directly and at once, without notice, against Xxxxxx to collect and recover the
full amount or any portion of the Obligations, without first proceeding against
Seller or Stockholder.
ARTICLE VII.
POST-CLOSING OBLIGATIONS
Section 7.01 Further Assurances. Following the Closing, Seller, the
Stockholder and Buyer shall execute and deliver such documents, and take such
other action, as shall be reasonably requested by any other party hereto to
carry out the transactions contemplated by this Agreement.
15
Section 7.02 Access to Records. From and after the Closing, (i) Seller and
the Stockholder shall (A) deliver to Buyer all books, records, files, agreements
and other information of Seller, and (B) use their best efforts to permit Buyer
and its authorized employees, agents, accountants, legal counsel and other
representatives to have access to the employees, counsel, accountants and other
representatives of Seller and Stockholder, in each case, to the extent and at
all times reasonably requested by Buyer for the purpose of investigating or
defending any claim made against Buyer or Seller relating to or affecting the
Assets in connection with periods ending on or before the Closing Date, and (ii)
Buyer shall (A) permit Seller and Stockholder, and their authorized employees,
agents, accountants, legal counsel and other representatives to have access to
Seller's books, records, files, agreements and other information in the
possession of Buyer or its affiliates, and (B) use its best efforts to permit
Seller and Stockholder, and their respective authorized employees, agents,
accountants, legal counsel and other representatives to have access to the
employees, counsel, accountants and other representatives of Buyer, Seller and
their Affiliates, in each case, to the extent and at all times reasonably
requested by Seller and/or the Stockholder, or any of them, for the purpose of
(I) investigating or defending any claim made against Seller and/or the
Stockholder in connection with Article VI hereof or (II) with respect to any
pre-Closing Date tax matters affecting Seller or the Stockholder.
Section 7.03 Non-Competition; Non-Solicitation.
(a) Seller, Stockholder and Xxxxxx, jointly and severally, agree
that for a period of twenty-four (24) months after the Closing Date, neither
Seller, Stockholder nor Xxxxxx will directly or indirectly engage in any
business competitive with Seller's Driver Leasing Business, those in which Buyer
or any of Buyer's Affiliates engage in, any business reasonably expected at the
Closing Date to thereafter be engaged in by Buyer or any of Buyer's Affiliates,
or any business planned or discussed, but not implemented, by Buyer or any of
Buyer's Affiliates at the Closing Date (collectively, the "Competing Business").
This covenant shall apply to the following geographical area: a fifty (50) mile
radius of any of Seller's offices (the "Restricted Territory"). To "directly or
indirectly engage in" a Competing Business includes, but is not limited to: (a)
engaging in such a business as owner, partner, or agent (except for owning less
than five percent (5%) of the equity of any publicly traded entity); (b)
becoming an employee, consultant, or contractor of any party that is engaged in
such business; or (c) becoming interested directly or indirectly in any such
business; and
(b) Seller, Stockholder and Xxxxxx, jointly and severally, agree
that for a period of twenty-four (24) months after the Closing Date, neither
Seller, Stockholder nor Xxxxxx shall, directly or indirectly, (i) solicit any
employee, supplier, or consultant of Buyer or any of Buyer's Affiliates or
anyone performing services for Buyer or any of Buyer's Affiliates for employment
or the performance of services for any current or future employer of Seller or
the Stockholder, for any entity for whom Seller or the Stockholder is performing
services, for Seller or the Stockholder itself, himself or herself, or for any
other person or entity except for Buyer, or (ii) solicit any existing or
potential customer or supplier of Buyer or any of Buyer's Affiliates for the
benefit of a third party that is engaged in a Competing Business.
Notwithstanding the foregoing, neither the Stockholder nor Xxxxxx shall not be
in breach of this Section 7.03 by virtue of their entering into and performing
their obligations on behalf of Buyer under the Employment Agreements as
contemplated in Section 2.02(e) above.
16
Section 7.04 Web Site. Seller's web site located at xxx.xxxxxxxxxxxx.xxx
and Seller's e-mail server address at xxxxxxxxxxxx.xxx shall be considered
Assets to be transferred to Buyer pursuant to Section 1.01 above. Seller shall
execute all documents deemed necessary or appropriate by Buyer, and shall
cooperate fully with Buyer, in order to transfer the aforementioned website and
e-mail serve address to Buyer. Seller and the Stockholder agree that
notwithstanding the execution of any such document, as of the Effective Date,
Buyer shall have the sole and exclusive right to use the website
xxx.xxxxxxxxxxxx.xxx and the email server address xxxxxxxxxxxx.xxx, and Seller
and the Stockholder shall cease using such name for any purpose without the
consent of Buyer.
ARTICLE VIII.
MISCELLANEOUS
Section 8.01 Brokers. Regardless of whether the Closing shall occur, (i)
Seller and the Stockholder shall jointly and severally indemnify and hold
harmless Buyer from and against any and all liability for any brokers or
finders' fees arising with respect to brokers or finders retained or engaged by
Seller or the Stockholder in respect of the transactions contemplated by this
Agreement, and (ii) Buyer shall indemnify and hold harmless Seller and the
Stockholder from and against any and all liability for any brokers' or finders'
fees arising with respect to brokers or finders retained or engaged by Buyer in
respect of the transactions contemplated by this Agreement.
Section 8.02 Costs and Expenses. Each of the parties to this Agreement
shall bear its own expenses incurred in connection with the negotiation,
preparation, execution and closing of this Agreement and the transactions
contemplated hereby.
Section 8.03 Notices. Any notice, request, instruction, correspondence or
other document to be given hereunder by any party hereto to another (herein
collectively called "Notice") shall be in writing and delivered personally or
mailed by registered or certified mail, postage prepaid and return receipt
requested, or by telecopier, as follows:
BUYER: 0000 Xxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxxx, Esq.
Xxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000-0000
Telecopy No.: (000) 000-0000
SELLER and Xxxxxx Xxxxxxx
STOCKHOLDERS: 0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
17
XXXXXX: Xxx Xxxxxx
000 Xxxx Xx.
Xxxxxxxxx, XX 00000
Each of the above addresses for notice purposes may be changed by providing
appropriate notice hereunder. Notice given by personal delivery or registered
mail shall be effective upon actual receipt. Notice given by telecopier shall be
effective upon actual receipt if received during the recipient's normal business
hours, or at the beginning of the recipient's next normal business day after
receipt if not received during the recipient's normal business hours. All
Notices by telecopier shall be confirmed by the sender thereof promptly after
transmission in writing by registered mail or personal delivery. Anything to the
contrary contained herein notwithstanding, Notices to any party hereto shall not
be deemed effective with respect to such party until such Notice would, but for
this sentence, be effective both as to such party and as to all other persons to
whom copies are provided above to be given.
Section 8.04 Governing Law. The provisions of this Agreement and the
documents delivered pursuant hereto shall be governed by and construed in
accordance with the laws of the State of Ohio (excluding any conflict of law
rule or principle that would refer to the laws of another jurisdiction), and any
arbitration award issued pursuant to Section 8.12 hereof may be entered in any
court having proper jurisdiction.
Section 8.05 Entire Agreement, Amendments and Waivers. This Agreement,
together with all exhibits and schedules attached hereto, constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the parties, and there are no warranties,
representations or other agreements between the parties in connection with the
subject matter hereof except as set forth specifically herein or contemplated
hereby. No supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (regardless of whether similar), nor shall any such
waiver constitute a continuing waiver unless otherwise expressly provided.
Section 8.06 Binding Effect and Assignment. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, permitted successors and assigns; but
neither this Agreement nor any of the rights, benefits or obligations hereunder
shall be assigned, by operation of law or otherwise, by any party hereto without
the prior written consent of the other party. Nothing in this Agreement, express
or implied, is intended to confer upon any person or entity, other than the
parties hereto and their respective heirs, executors, legal representatives,
permitted successors and assigns, any rights, benefits or obligations hereunder.
Section 8.07 Remedies. The rights and remedies provided by this Agreement
are cumulative, and the use of any one right or remedy by any party hereto shall
not preclude or constitute a waiver of its right to use any or all other
remedies provided by this Agreement.
18
Section 8.08 Exhibits and Schedules. The exhibits and schedules referred
to herein are attached hereto and incorporated herein by this reference.
Section 8.09 Multiple Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 8.10 References. Whenever required by the context, and as used in
this Agreement, the singular number shall include the plural and pronouns and
any variations thereof shall be deemed to refer to the masculine, feminine,
neuter, singular or plural, as the identification of the person may require.
References to monetary amounts and specific named statutes are intended to be
and shall be construed as references to United States dollars and statutes of
the United States, respectively, unless the context otherwise requires.
Section 8.11 Survival. Any provision of this Agreement which contemplates
performance or the existence of obligations after the Closing Date, and any and
all representations and warranties set forth in this Agreement, shall not be
deemed to be merged into or waived by the execution and delivery of the
instruments executed at the Closing, but shall expressly survive Closing for the
time period set forth in Section 6.01 hereof and shall be binding upon the party
or parties obligated thereby in accordance with the terms of this Agreement,
subject to any limitations expressly set forth in this Agreement.
Section 8.12 Arbitration. The parties hereto agree to submit any dispute,
controversy or claim arising out of or relating to this Agreement to binding
arbitration before a sole arbitrator in conformance with the J*A*M*S ("JAMS")
Streamlined Arbitration Rules and Procedures, and further provided that,
notwithstanding Rule 14 thereof, the parties hereby agree that the location of
any such arbitration shall be Lexington, KY. Notwithstanding anything to the
contrary contained herein, if, due to a breach or threatened breach or default
or threatened default, a party is suffering irreparable harm for which monetary
damages are inadequate, such party may petition a court of competent
jurisdiction for injunctive relief, specific performance or other equitable
relief without resorting to arbitration.
ARTICLE IX.
DEFINITIONS
Capitalized terms used in this Agreement shall have the respective
meanings ascribed to such terms in this Article IX, unless otherwise defined in
this Agreement.
Section 9.01 Affiliate. The term "Affiliate" shall mean, with respect to
any person, any other person controlling, controlled by or under common control
with such person. The term "control" as used in the preceding sentence means,
with respect to a corporation, the right to exercise, directly or indirectly,
more than fifty percent (50%) of the voting rights attributable to the shares of
the controlled corporation and, with respect to any person other than a
corporation, the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such person.
19
Section 9.02 Governmental Authority. The term "Governmental Authority"
shall mean any nation or country (including but not limited to the United
States) and any commonwealth, territory or possession thereof and any political
subdivision of any of the foregoing, including but not limited to courts,
departments, commissions, boards, bureaus, agencies, ministries or other
instrumentalities.
Section 9.03 Knowledge. The term "Knowledge" shall mean the actual
knowledge of a party and, in the case of Buyer or Seller, of any of such
entity's directors or executive officers with respect to the representation
being made, and, in the case of the Stockholder, such knowledge as reasonably
should have been obtained upon due investigation and inquiry into the
representation being made.
Section 9.04 Legal Requirements. The term "Legal Requirements", when
described as being applicable to any person, shall mean any and all laws
(statutory, judicial or otherwise), ordinances, regulations, judgments, orders,
directives, injunctions, writs, decrees or awards of, and any contracts with,
any Governmental Authority, in each case as and to the extent applicable to such
person or such person's business, operations or Property.
Section 9.05 Liens. The term "Lien" shall mean any mortgage, pledge, deed
of trust, hypothecation, right of others, claim, security interest, encumbrance,
burden, title defect, title retention agreement, lease, sublease, license,
occupancy agreement, easement, covenant, condition, encroachment, interest,
option, right of first offer, negotiation or refusal, preemptive right, proxy,
charge or other restrictions or limitations of any nature whatsoever.
Section 9.06 Material Adverse Change. The term "Material Adverse Change"
shall mean a material adverse change in Seller's condition (financial or
otherwise), operations, results of operations, business, Property or
liabilities.
Section 9.07 Material Adverse Effect. The term "Material Adverse Effect"
shall mean a material adverse effect on Seller's operations, business, Property,
financial condition or results of operations.
Section 9.08 Permits. The term "Permits" shall mean any and all permits or
orders under any Legal Requirement or otherwise granted by any Governmental
Authority.
Section 9.09 Property. The term "Property" shall mean any and all property
and assets (real, personal, mixed, tangible or intangible).
Section 9.10 Regulations. The term "Regulations" shall mean any and all
regulations promulgated by the Department of the Treasury pursuant to the Code.
Section 9.11 Seller's Driver Leasing Business. The term "Seller's Driver
Leasing Business" shall mean the truck driver leasing business that Seller
operates throughout the United States of America through Truckers Plus Leasing,
Inc., a Tennessee corporation.
20
Section 9.12 Taxes or Tax. The term "Taxes" or "Tax" means any federal,
state, local, or foreign income, gross receipts, license, payroll, employment,
gift, excise, severance, stamp, occupation, premium, windfall profits,
environmental (including taxes under Code ss.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.
Section 9.13 Tax Returns. The term "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.
21
EXECUTED as of the date first written above.
RESOLVE STAFFING, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------
Xxxxxx X. Xxxxxxxx
Chief Executive Officer
TRUCKERS PLUS LEASING, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Xxxxxx Xxxxxxx
President
STOCKHOLDER:
/s/ Xxxxxx Xxxxxxx
----------------------------------
Xxxxxx Xxxxxxx
For purposes of Sections 3.19, 6.05
and 7.03 only:
----------------------------------
Xxx Xxxxxx
Signature Page
EXHIBIT A
Purchase Price Allocation
Fixed Assets:
Goodwill:
Total
A-1
EXHIBIT B
XXXX OF SALE
1. Sale and Transfer of Assets. For good and valuable consideration, the
receipt, adequacy and legal sufficiency of which are hereby acknowledged, and as
contemplated by Section 1.01 of that certain Asset Purchase Agreement dated as
of August 15, 2005 (the "Purchase Agreement"), to which Truckers Plus Leasing,
Inc., a Tennessee corporation (the "Seller"), Resolve Staffing, Inc., a Nevada
corporation (the "Buyer"), and Xxxxxx Xxxxxxx (the "Shareholder") are parties,
Seller hereby sells, transfers, assigns, conveys, grants and delivers to Buyer,
effective as of 11:59 p.m. (Eastern Standard Time) on August 15, 2005 (the
"Effective Time"), all of Seller's right, title and interest in and to all of
the Assets (as defined in Section 1.01 of the Purchase Agreement).
2. Power of Attorney. Seller hereby constitutes and appoints Buyer the true and
lawful agent and attorney in fact of Seller, with full power of substitution and
resubstitution, in whole or in part, in the name and stead of Seller but on
behalf and for the benefit of Buyer and its successors and assigns, from time to
time:
a. to demand, receive and collect any and all of the Assets and to give
receipts and releases for and with respect to the same, or any part thereof;
b. to institute and prosecute, in the name of Seller or otherwise, any and
all proceedings at law, in equity or otherwise, that Buyer or its successors and
assigns may deem proper in order to collect or reduce to possession any of the
Assets and in order to collect or enforce any claim or right of any kind hereby
assigned or transferred, or intended so to be; and
c. to do all things legally permissible, required, or reasonably deemed by
Buyer to be required to recover and collect the Assets and to use Seller's name
in such manner as Buyer may reasonably deem necessary for the collection and
recovery of same.
3. Terms of the Purchase Agreement. The terms of the Purchase Agreement,
including but not limited to Seller's representations, warranties, covenants,
agreements and indemnities relating to the Assets, are incorporated herein by
this reference. Seller acknowledges and agrees that the representations,
warranties, covenants, agreements and indemnities contained in the Purchase
Agreement shall not be superseded hereby but shall remain in full force and
effect to the full extent provided therein. In the event of any conflict or
inconsistency between the terms of the Purchase Agreement and the terms hereof,
the terms of the Purchase Agreement shall govern.
[Signature Page to Follow]
B-1
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale effective as of August
15, 2005.
Truckers Plus Leasing, Inc.
------------------------------------------
By: Xxxxxx Xxxxxxx
Its: President
B-2
EXHIBIT C
Assignment and Assumption Agreement
This assignment and assumption agreement (the "Assignment and Assumption
Agreement") is made and entered into as of August 15, 2005, by and among
Truckers Plus Leasing, Inc., a Tennessee corporation ("Assignor"), and Resolve
Staffing, Inc., a Nevada corporation ("Assignee").
WHEREAS, Assignor and Assignee are parties to that certain Asset Purchase
Agreement dated as of August 15, 2005 (the "Purchase Agreement"), pursuant to
which Assignee has purchased certain assets of Assignor; and
WHEREAS, pursuant to the Purchase Agreement, Assignor has agreed to assign
certain rights and agreements (the "Contracts") to Assignee, and Assignee has
agreed to assume certain obligations of Assignor (the "Assumed Liabilities"), as
set forth herein, and this Assignment and Assumption Agreement is contemplated
by Section 2.02(b) of the Purchase Agreement;
NOW, THEREFORE, for and in consideration of the promises and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt, adequacy and legal sufficiency of which are hereby acknowledged, the
parties do hereby agree as follows:
1. Capitalized Terms. Capitalized terms used but not defined herein shall
have the meanings for such terms as set forth in the Purchase Agreement.
2. Assignment and Assumption. Effective as of 12:01 a.m. (Eastern Standard
Time) on August 15, 2005 (the "Effective Time"), Assignor hereby assigns, sells,
transfers and sets over (collectively, the "Assignment") to Assignee all of
Assignor's right, title, benefit, privileges and interest in and to, and all of
Assignor's burdens, obligations and liabilities in connection with, each of the
Contracts and Assumed Liabilities, other than liability for breach or default
under such Contracts or Assumed Liabilities occurring prior to the Closing Date.
Assignee hereby accepts the Assignment and assumes and agrees to observe and
perform all of the duties, obligations, terms, provisions and covenants, and to
pay and discharge all of the liabilities of Assignor to be observed, performed,
paid or discharged from and after the Closing, in connection with the Contracts
and Assumed Liabilities, other than liability for breach or default under such
Contracts or Assumed Liabilities occurring prior to the Closing Date. Assignee
assumes no liabilities other than the Assumed Liabilities, and the parties
hereto agree that all liabilities not assumed by Assignee shall remain the sole
responsibility of Assignor.
3. Power to Collect for Own Account. On and after the date of this
Assignment and Assumption Agreement, the Assignee shall have the right and
authority to collect, for its own account, all sums accruing for any and all
periods or partial periods starting with, or coming due on or after, the date of
this Assignment and Assumption Agreement with respect to the Contracts and the
Assignee shall have the right and authority to endorse the name of the Assignor
on any checks or drafts received that evidence payment of any such sums. The
Assignor agrees that it will promptly transfer and deliver to the Assignee from
time to time any cash or other property that the Assignor may receive on or
after the date of this Assignment in respect of any of the Contracts (including,
without limitation, any amounts payable as interest in respect thereof) which
shall have accrued or come due on or after the Closing.
C-1
4. Power of Attorney. The Assignor hereby constitutes and appoints the
Assignee, and the Assignee's successors and assigns, the true and lawful
attorney of the Assignor with full power of substitution, having full right and
authority, in the name of the Assignor or otherwise, and for the benefit and at
the expense of the Assignee and the Assignee's successors and assigns:
a. to institute and prosecute all proceedings which the Assignee may
deem proper in order to collect, assert, or enforce any claim or right arising
or accruing on or after the date of this Assignment under the Contracts, to
defend and compromise any and all actions, suits, or proceedings in respect of
any such claim or right, and to do all such acts and things in relation thereto
as the Assignee shall deem advisable; and
b. to take all actions which the Assignee shall deem proper in order
to provide for the Assignee the benefits under any and all of the Contracts
where any required consent of another party to the assignment thereof to the
Assignee shall not theretofore have been obtained.
5. Terms of the Purchase Agreement. The terms of the Purchase Agreement,
including but not limited to Assignor's representations, warranties, covenants,
agreements and indemnities relating to the Assumed Liabilities, are incorporated
herein by this reference. Assignor acknowledges and agrees that the
representations, warranties, covenants, agreements and indemnities contained in
the Purchase Agreement shall not be superseded hereby but shall remain in full
force and effect to the full extent provided therein. In the event of any
conflict or inconsistency between the terms of the Purchase Agreement and the
terms hereof, the terms of the Purchase Agreement shall govern.
6. Further Actions. Each of the parties hereto covenants and agrees, at
its own expense, to execute and deliver, at the request of the other party
hereto, such further instruments of transfer and assignment and to take such
other action as such other party may reasonably request to more effectively
consummate the assignments and assumptions contemplated by this Assignment and
Assumption Agreement.
7. Choice of Law. This Agreement shall be governed by the laws of the
State of Ohio.
8. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one in the same agreement.
[Signature Page to Follow]
C-2
IN WITNESS WHEREOF, the parties have executed this Assignment and
Assumption Agreement as of the date first above written.
ASSIGNOR ASSIGNEE
Truckers Plus Leasing, Inc. Resolve Staffing, Inc.
--------------------------------- -----------------------------------
By: Xxxxxx Xxxxxxx By: Xxxxxx Xxxxxxxx
Its: President Its: Chief Executive Officer
C-3
EXHIBIT D
Employment Agreement
This Employment Agreement (this "Agreement") is made and entered into as
of ____________, 2005 by and between Resolve Staffing, Inc., a Nevada
corporation ("Employer"), and _______________________ ("Employee").
RECITALS:
A. Employer is acquiring certain assets of Truckers Plus Leasing, Inc., a
Tennessee corporation ("Seller").
B. Prior to the date of this Agreement, Employee was employed by Seller.
C. Employer desires to be assured of the services of Employee by employing
Employee in the capacity and on the terms set forth below, and Employee desires
to commit himself/herself to serve Employer on such terms.
D. Employee and Employer acknowledge that the parties' entering into this
Agreement is a material inducement to and condition of Employer's consummating
the acquisition of Seller's assets, which Employee acknowledges and agrees is of
substantial benefit to him/her.
NOW, THEREFORE, in consideration of the recitals and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Employer and Employee agree as follows:
1. Position and Term. Effective as of the effective date of the
acquisition referred to above, Employer hires Employee, and Employee accepts
employment with Employer for a term of _________ (__) years ("Initial Term").
Employee's duties shall include those set forth in the job description attached
hereto as Exhibit A and such other duties as may be assigned to him/her by
Employer's President. At the end of the Initial Term, Employer may, in its sole
discretion, offer to extend Employee's employment for a one-year renewal term
("Renewal Term"), with employment for any such Renewal Term to be set forth in a
writing signed by both parties and on substantially the same terms and
conditions as are set forth herein. In the absence of any written agreement to
the contrary, at any time after the end of the Initial Term and any Renewal
Term, Employer may terminate Employee for any reason or for no reason and
Employee shall be an at-will employee of Employer. Employee shall abide by the
rules, regulations, policies, and procedures established from time to time by
Employer, shall adhere to all of Employer's record-keeping, service, and safety
policies, and shall be responsible for maintaining a good working relationship
with suppliers, customers, persons, and business entities with which Employer
does business. While he/she is employed by Employer, Employee shall devote
his/her entire productive time, ability, and attention for the benefit of the
business of Employer and shall not directly or indirectly render any service of
a business, commercial, or professional nature to any other person or
enterprise, whether for compensation or otherwise, without the prior written
consent of Employer; provided, however, that as long as none of the following
activities negatively impacts the ability of Employee to carry out his/her
obligations hereunder and to devote his/her full business efforts to Employer,
Employee may (a) engage in appropriate professional, educational, civic,
charitable, or religious activities, and (b) devote reasonable time to
Employee's real estate acquisitions and rentals activities and to other private
investments.
1
2. Best Efforts. Employee shall exercise his/her good faith best efforts
to perform his/her duties under this Agreement faithfully and industriously and
to the reasonable satisfaction of Employer. Such duties shall be provided,
consistent with the terms of this Agreement, at such place(s) as the needs,
business, and/or opportunities of Employer may require from time to time.
3. Compensation and Benefits.
a. Employer shall pay Employee a salary of _______________________
Dollars ($____________) per year, which shall be paid in accordance with
Employer's standard payroll policies. In addition, Employee shall be entitled to
the following commission bonuses:
_______________________________________________________________________________
_______________________________________________________________________________.
Employer shall pay such commission bonuses monthly to Employee.
b. Employee shall be entitled to participate in such other group
employee benefits as may be established and maintained by Employer for the
benefit of its employees similarly situated to Employee, including life
insurance and health and dental insurance; provided, however, that Employer may
modify, limit, cancel, or replace any policies, benefits, and/or plans and the
terms thereof without any obligation to Employee.
c. Employee shall be entitled to _______ (__) weeks of paid vacation
time per year, to be scheduled consistent with the needs of Employer and with
the consent of Employer's President; and
d. Employer shall reimburse Employee for cell phone and professional
automobile expenses up to an aggregate maximum of $_____ per month.
4. Confidentiality.
a. Employee recognizes that Employer has and will have information
that is confidential or proprietary to Employer, whether relating to Employer or
Seller, including, without limitation: (i) the terms of any contracts and
prospective contracts; (ii) pricing and bidding strategies; (iii) marketing
methods; (iv) financial forecasts and results; (v) lists of suppliers,
customers, and prospective suppliers and customers; (vi) strategic plans; (vii)
other information disclosed by or on behalf of Employer to Employee, or learned
of by Employee, relating to Employer, Seller or its business, whether by means
of written or oral disclosure or otherwise; (viii) analyses, compilations,
reports, and studies; and (xii) economic, and business information, ideas,
concepts, strategies, products, technology, know-how, trade secrets, characters,
works of authorship, copyrights, internet domain names, and other confidential
information (any and all of the foregoing being referred to in this Agreement
both individually and collectively as the "Proprietary Information").
Information shall not be considered Proprietary Information if it is established
by Employee that such information: (A) at the time of disclosure to Employee, is
published, known publicly, or is otherwise in the public domain; or (B) after
disclosure to Employee, is published or becomes known publicly or otherwise
becomes part of the public domain, through no violation of this Agreement or act
or fault of Employee.
2
b. Employee agrees that he/she will not, except in performing
his/her duties for the benefit of Employer, at any time or in any manner, either
directly or indirectly, use any Proprietary Information or divulge, disclose, or
communicate any Proprietary Information to any third party without the prior
written consent of Employer. Employee will protect the Proprietary Information
and treat it as strictly confidential.
c. Upon Employee's ceasing to be employed by Employer or at any time
upon Employer's demand therefor, Employee shall immediately deliver to Employer:
(i) all Proprietary Information and any design, drawing, report, audio, visual,
or textual work or any combination thereof, or any product or program, that
embodies or is based upon any of the Proprietary Information, including, without
limitation, reports, papers, surveys, letters, documents, computer printouts,
computer files, computer hardware, computer software programs, computer systems,
images, audio, video, graphic or textual work, and manuals; and (ii) all
property, equipment, and similar items of Employer or its suppliers or customers
or their respective businesses.
The provisions of this Section 4 shall remain in full force and effect
during Employee's employment by Employer and at all times after Employee ceases
to be employed by Employer.
5. Inventions. With respect to any and all improvements and inventions,
whether or not patentable, which Employee may learn of, conceive, or first
actually reduce to practice, and/or works of authorship, whether or not
copyrightable, which Employee may originate, either solely or jointly with
others, during his/her performance under this Agreement, which relate to the
business of Employer, or which grow out of any work Employee may do for or on
behalf of Employer, or information which Employee receives from Employer or
persons associated with Employer during performance under this Agreement,
Employee shall promptly disclose said improvement, invention, and/or work of
authorship to Employer and shall cause to assign and transfer, and by these
presents does hereby assign and transfer, to Employer all right, title, and
interest, including patents and copyrights, in and to such improvements,
inventions, and/or works of authorship. The provisions of this Section 5 shall
remain in full force and effect during Employee's employment by Employer and at
all times after Employee ceases to be employed by Employer.
6. Non-Competition. Employee recognizes that the various items of
Proprietary Information are special and unique assets of Employer and need to be
protected from improper disclosure. Employee further recognizes that in the
course of his/her employment, he/she will have contact with customers,
suppliers, and other business associates of Employer. In consideration of the
disclosure of the Proprietary Information to Employee, Employer's entering into
this Agreement and agreeing to employ Employee, Employer's good will with which
Employee will be vested, Employee covenants and agrees that during the period
that Employee is employed by Employer and for a period of twenty four (24)
months after Employee ceases to be employed by Employer, Employee will not
directly or indirectly engage in any business competitive with those in which
Employer engages at the time Employee ceases to be employed by Employer, any
business reasonably expected at the time Employee ceases to be employed by
Employer to thereafter be engaged in by Employer, or any business planned or
discussed, but not implemented, by Employer at or before the time Employee
ceases to be employed by Employer (collectively, the "Competing Business"). This
covenant shall apply to the geographical area that includes the designated
business territory of Employer, which is defined in Exhibit B attached hereto
(the "Restricted Territory"). To "directly or indirectly engage in" a Competing
Business includes, but is not limited to: (a) engaging in such a business as
owner, partner, or agent (except for owning less than five percent (5%) of the
equity of any publicly traded entity); (b) becoming an employee, consultant, or
contractor of any party that is engaged in such business; or (c) becoming
interested directly or indirectly in any such business. This covenant on
Employee's part shall be construed as an agreement independent of any other
provision of this Agreement, and the existence of any claim or cause of action
of Employee against Employer, whether predicated on this Agreement or otherwise,
shall not constitute a defense to the enforcement by Employer of this covenant.
Employee acknowledges and agrees that these noncompetition provisions are
reasonable and are necessary for the protection of Employer's legitimate
competitive business interests, and Employee agrees that this noncompetition
provision will not adversely affect Employee's livelihood.
3
7. Non-Solicitation. Employee shall not, during Employee's employment by
Employer and for a period of twenty four (24) months after Employee ceases to be
employed by Employer, directly or indirectly, (i) solicit any employee,
supplier, or consultant of Employer or anyone performing services for Employer
for employment or the performance of services for any current or future employer
of Employee, for any entity for whom Employee is performing services, for
Employee himself or herself, or for any other person or entity except for
Employer, or (ii) solicit any existing or potential customer or supplier of
Employer for the benefit of a third party that is engaged in any Competing
Business.
8. Breach. The parties agree that Employee's agreements contained in
Sections 4 through 7 of this Agreement relate to matters of a unique character
and peculiar value impossible of replacement, that breach of any such agreements
by Employee will cause Employer great and irreparable injury, and that the
remedy at law for any breach of such agreements will be inadequate. In the event
of a breach or threatened breach by Employee of any of the provisions contained
in Sections 4 through 7 of this Agreement during or after his employment by
Employer, Employer, in addition to any other relief available to it, shall be
entitled to temporary restraining orders and temporary and permanent injunctive
relief or other equitable relief without the necessity of proving actual damage
or posting bond so as to prevent a breach of the agreements contained in
Sections 4 through 7 of this Agreement and to secure the enforcement thereof.
Nothing herein shall be construed as prohibiting Employer from pursuing other
remedies, including a claim for losses and damages.
9. Termination. Notwithstanding that the Initial Term or Renewal Term, if
any, has not expired, if Employee breaches any of his obligations under this
Agreement, or if Employee at any time refuses or fails to perform, or improperly
performs, any of his or her obligations under or in connection with this
Agreement, or if Employee commits any dishonest or fraudulent act or is guilty
of misconduct in connection with Employer's business or operations, or if
Employee conducts himself or herself in any manner having a reasonable
possibility of damaging the business or reputation of Employer (which shall
include, without limitation, Employee's commission of, or being charged with, a
criminal offense), or if Employee shall die or shall otherwise become physically
or mentally incapable of fully performing his or her duties under this
Agreement, or if Employee shall be absent by reason of illness, incapacity,
inability to perform, or any other reason for more than thirty (30) consecutive
calendar days, Employer may forthwith terminate the employment of Employee
immediately upon providing Employee notice (which, in such instance, may be
written or oral) of such termination. In addition, if, after the Initial Term
and any Renewal Term specified in Section 1 above or at any other time, Employee
becomes an at-will employee of Employer, Employer may at any time terminate the
employment of Employee for any reason or for no reason immediately upon
providing Employee notice (which, in such instance, may be written or oral) of
such termination. Upon termination of Employee's employment with Employer,
Employer shall have no further obligation to provide Employee with any of the
benefits contemplated hereunder, except as required by law, or to pay to
Employee any salary or other amounts attributable to dates after Employee's
termination of employment. Termination of Employee's employment with Employer
shall not affect Employee's continuing obligations under this Agreement.
4
10. Notices. All notices, consents, waivers, and other communications
required or permitted under this Agreement shall be in writing and shall be
deemed given to a party: (a) when delivered to the appropriate address by hand;
(b) on the first business day after being sent by a nationally recognized
overnight courier service (costs prepaid); (c) when sent by facsimile with
telephonic confirmation or electronic mail with confirmation of transmission by
the transmitting equipment; or (d) three (3) business days after deposit if sent
by certified mail, return receipt requested, whether received or rejected by the
addressee, in each case to the following addresses, facsimile numbers, or
electronic mail addresses, and marked to the attention of the person (by name or
title) designated below (or to such other address, facsimile number, electronic
mail address, or person as a party may designate by notice to the other
parties):
To Employer:
Resolve Staffing, Inc.
0000 Xxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile No.: (___) ___-____
E-mail address: xxxxxxxxx@xxxxxx.xxx
To Employee:
5
Facsimile No.: (___) ___-____
E-mail address:
Any party may change such party's address or facsimile number for purposes of
this Agreement by notice given in accordance herewith.
11. Entire Agreement. This Agreement supersedes all prior agreements,
whether written or oral, between the parties with respect to its subject matter
and constitutes (along with the documents, if any, referred to in this
Agreement) a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter.
12. Amendment. This Agreement may not be amended, supplemented, or
otherwise modified except by a written agreement executed by both parties. Any
amendments, supplements, or modifications to this Agreement must be signed by
the President of Employer on behalf of Employer or at the direction of
Employer's Board of Directors to be effective against Employer.
13. Severability. If any provision of this Agreement shall be held to be
invalid or unenforceable for any reason, the remaining provisions shall continue
to be valid and enforceable. If a court finds that any provision of this
Agreement is invalid or unenforceable, but that by limiting such provision it
would become valid or enforceable, then such provision shall be deemed to be
written, construed, and enforced as so limited.
14. Waiver. The rights and remedies of the parties are cumulative and not
alternative. No failure, delay, or single or partial exercise of any right,
power, or privilege by any party under this Agreement or any of the documents
referred to in this Agreement will operate as a waiver of such right, power, or
privilege or will preclude any other or further exercise of such right, power,
or privilege or the exercise of any other right, power, or privilege. To the
maximum extent permitted by applicable law: (a) no claim or right arising out of
this Agreement or any of the documents referred to in this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation of the
claim or right unless in writing signed by the other party; (b) no waiver that
may be given by a party will be applicable except in the specific instance for
which it is given; and (c) no notice to or demand on one party will be deemed to
be a waiver of any obligation of that party or of the right of the party giving
such notice or demand to take further action without notice or demand as
provided in this Agreement or the documents referred to in this Agreement.
15. Applicable Law; Venue. This Agreement shall be governed by the laws of
the State of Ohio without regard to conflicts of law principles that would
require the application of any other law. Employer and Employee agree that the
federal or state courts located within Xxxxxxxx County, Ohio shall have
exclusive jurisdiction and venue over any disputes arising out of or relating to
this Agreement. The parties hereby consent to in personam jurisdiction in such
courts.
6
16. Attorneys' Fees. If any action at law or in equity is necessary to
enforce the terms of this Agreement, Employee shall reimburse Employer for its
reasonable attorneys' fees, costs, and necessary disbursements in addition to
any other relief to which Employer may be entitled.
17. Binding Effect; Assignment. This Agreement shall be binding upon the
parties and their respective heirs, executors, administrators, successors, and
assigns; provided, however, that Employee shall not assign any part of his
rights or duties under this Agreement without the prior written consent of
Employer, which Employer may grant or withhold in its sole discretion, and any
such assignment by Employee without Employer's prior written consent shall be
void and of no force or effect. In the event of a merger, sale, transfer,
consolidation, or reorganization involving Employer, this Agreement shall
continue in full force and effect and shall be binding upon, and inure to the
benefit of, Employer's successors and assigns.
18. Acknowledgement. By executing this Agreement, Employee confirms that
he has read this Agreement, has had an opportunity to consult with his advisors
and attorneys regarding the terms of this Agreement, and fully understands this
Agreement.
19. Headings. The headings of the Sections and paragraphs of this
Agreement are included solely for convenience of reference and shall not control
the meaning or interpretation of any of the provisions of this Agreement.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. The exchange of copies of this Agreement and of
signature pages by facsimile or electronic mail transmission shall constitute
effective execution and delivery of this Agreement as to the parties and may be
used in lieu of the original Agreement for all purposes. Signatures of the
parties transmitted by facsimile or electronic mail shall be deemed to be their
original signatures for all purposes.
[SIGNATURE PAGE FOLLOWS]
7
IN WITNESS WHEREOF, the parties hereto have duly and validly entered into
and executed this Agreement as of the date first written above.
EMPLOYER EMPLOYEE
Resolve Staffing, Inc.
By: /s/ Xxxxxx Xxxxxxxx
------------------------------ ------------------------------
Printed Name: Xxxxxx Xxxxxxxx Printed Name:
-------------------- -----------------
Title: Chief Executive Officer
---------------------------
8
EXHIBIT A
---------
JOB DESCRIPTION
9
EXHIBIT B
---------
RESTRICTED TERRITORY
A 50-mile radius of any office of Employer
10
SCHEDULES TO THE ASSET PURCHASE AGREEMENT
1
SCHEDULE 1.01
ASSETS
2
SCHEDULE 3.01
ARTICLES OF INCORPORATION; BYLAWS OF SELLER
3
SCHEDULE 3.05
SELLER'S EMPLOYEES
Employee Poisition Weekly Salary/Hourly Rate
------------------------------ ------------------------------ -------------------------
Lebanon, TN
Xxxxxx Xxxxxxx Chief Financial Officer $1600 plus bonus
Xxxxx Xxxxx Branch Mgr. $700 plus bonus
Xxxxxxx Xxxxxxxxx Operations Mgr. $600
Xxxxxx Xxxxxx Admin Asst./Payroll Specialist $420
Xxxxx Xxxxxxxx Marketing Mgr. $625
Xxxxxxx Xxxxxx Payroll Mgr. $565 plus bonus
Xxxxxx Xxxx Payroll Asst. $8.50 hr.
Xxxxxx Xxxxxx Admin. Asst/Benefits Admin. $9.50 hr.
Atlanta, GA
Xxx Xxxxxx Operations Manager $675 due for $25 90 day raise
Xxx Xxxxxxx Area Sales Mgr. $575
Chanterris Xxxxxxx Asst. Ops. Manager $525
Austin, TX
Xxxx Xxxxxx Branch Mgr. $575 plus bonus
Xxxxxxx Xxxxxx Area Sales Mgr. $550
Birmingham, AL
Xxxxx Xxxxxxxx Vice President $875 plus bonus & co. car
Xxxxxx Xxxxxx Branch Mgr. $650 plus bonus
Xxxxxx Xxxxxxxxx Regional Sales Mgr. (West) $640
Xxxxxx Xxxxx Asst. Ops. Mgr. $500
Charlotte, NC
Xxx Xxxxxx President/CEO $1800 plus bonus
Xxxxx Xxxxx Regional Ops. Mgr (East) $700 plus bonus & co. car
Xxxxxxx Xxxxxx Operations Mgr. $650
Open Position Area Sales Mgr. $
Xxxxxxx Xxxxxx, Xx. Assistant $11 hr.
Chicago, IL
Xxxxxxx Xxxxx Operations Mgr. $625
Xxxxx Xxxxxxxxxxx Area Sales Mgr. $600
Dallas, TX
Xxxx Xxxxxxxx Operations Mgr. $675
Keshunia Xxxxxxx Area Sales Manager $500
4
Greenville, SC
Xxxxxx Xxxxxxxxx Area Sales Mgr. $592.25
Xxxxx Xxxxxxx Operations Mgr. $550
Houston, TX
Xxxxxx Xxxxx Area Sales Mgr. $600
Xxxx Xxxx Operations Mgr. $625
Jacksonville, FL
Xxx Xxxxxxx Operations Mgr. $725
Xxxxx Xxxxxx Area Sales Mgr. $600
Memphis, TN
Xxxxxxxx Xxxxxxx Regional Ops Mgr. (West) $675 plus bonus & co. car
Xxxxx Xxxxx Operations & Area Sales Mgr. $750
Xxxxx Xxxxxxx Asst. Ops. Mgr. $650
Orlando, FL
Xxxxx Xxxxxx Operations Mgr. $650
Xxxxxxx Xxxxxxx Area Sales Mgr. $550
5
SCHEDULE 3.06
-------------
SELLER'S EMPLOYEE BENEFIT PLANS
Truckers Plus Leasing, Inc. 401K plan
6
SCHEDULE 3.07
-------------
CHANGES TO SELLER'S BUSINESS
None
7
SCHEDULE 3.09
-------------
TITLE TO ASSETS
Seller granted a security interest in certain of its intangible assets to
Employee Leasing Services, Inc., an Ohio corporation, pursuant to a Security
Agreement dated June 20, 2005.
8
SCHEDULE 3.10
-------------
PERMITS AND LICENSES
9
SCHEDULE 3.14
-------------
SELLER'S FINANCIAL STATEMENTS
10
SCHEDULE 3.15
-------------
TAX MATTERS
Insert description of Seller's federal tax liability
11
