ESSI Payroll & Staffing Services, Inc. ATME Acquisitions, Inc. EMTA Holdings, Inc. LETTER OF INTENT Agreement Date: 10/17/2008 Seller and Purchasers: Seller – Shareholders of Easy Staffing Solutions, Inc. (“Seller”) Buyer – ATME Acquisitions, Inc., a...
EXHIBIT
10.1
ESSI
Payroll & Staffing Services,
Inc.
ATME
Acquisitions, Inc.
LETTER
OF INTENT
Agreement
Date: 10/17/2008
Seller
and Purchasers:
Seller –
Shareholders of Easy Staffing Solutions, Inc. (“Seller”)
Buyer – ATME
Acquisitions, Inc., a wholly owned subsidiary of EMTA Holdings, Inc.
(“ATME”)
Target – Easy
Staffing Solutions, Inc. and subsidiaries (“ESSI” or the “Company”), a Delaware
corporation
Price:
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1.
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Stock exchange under
Section 368(B) or 368(C) of the Internal Revenue Code, as to be
determined.
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2.
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The exchange of all
of the outstanding shares or ESSI for 12,500,000 restricted shares of EMTA
Holdings, Inc., the parent company of ATME Acquisitions,
Inc.
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3.
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Assumption of all debt (subject to audit) | $ | 8,900,000 | ||||
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4.
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Cash payments to Sellers and brokers(a)(b) | 1,575,000 | |||||
| $ | 10,475,000 | ||||||
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a. |
Payable
in 4 equal annual installments or at the option of the payee take shares
of EMTA Holdings in lieu of cash payment at a price of 85% of the then
current quoted market price of the stock provided such price is not less
than $0.25 per share.
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| b. |
To
be adjusted for amounts due to and due from
shareholders.
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Other
Items:
1. The Company will enter into an employment agreement
with Xxxxx Xxxxx as President of the “Employment
Entity”. The agreement will be attached hereto as Exhibit
D.
2.
ATME will
assume the existing debt of the ESSI and pay such amounts as due or earlier if
appropriate at the discretion of ATME. ATME will hold harmless or
indemnify Xxxxx Xxxxx for any civil liability that may arise from these
obligation.
3.
ESSI will
complete the necessary audits for applicable SEC filing, These would consist of
2 years of audits by a PCAOB qualified auditor, acceptable to ATME, plus review
if any stub periods that are necessary.
4.
Upon
execution, the control of the ESSI will immediately transfer and be the
responsibility of ATME Acquisitions, Inc. Pending the final closing,
neither the Seller, the Company nor ATME Acquisitions will do any action nor
fail to take any action that would diminish the value of the
Company.
5.
The
Closing is to occur not later than January 15, 2009 or such other date as the
parties may agree.
6.
At
closing, the Company will exchange up to 250,000 stock options in ESSI for stock
options of EMTA Holdings, Inc. at an exercise price of $0.06 per share,
exercisable for the shorter of 3 years or 30 days after termination of
employment. Such shares will be free trading upon issue and the
options will be issued to the employees as provided on Exhibit E
hereto.
Reps
and Warranties
I.
Seller
hereby represents and warrants as follows:
1.
The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation as set forth above and
has all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now conducted. The Seller
is duly qualified or authorized to do business as a foreign corporation and is
in good standing under the laws of each jurisdiction in which it owns or leases
real property and each other jurisdiction in which the conduct of its business
or the ownership of its properties requires such qualification or authorization,
except where failure to be so qualified would not have a material adverse effect
on the business, assets or financial condition of the Company taken as a whole
(“Material Adverse Effect”).
2. Seller
has all requisite power, authority and legal capacity to execute and deliver the
Agreement, and each other agreement, document, or instrument or certificate
contemplated by the Agreement or to be executed by the Seller in connection with
the consummation of the transactions contemplated by the Agreement (together
with this Agreement, the “Seller Documents”), and to consummate the transactions
contemplated hereby and thereby. This Agreement has been, and each of
the Seller Documents will be at or prior to the closing of the transactions
contemplated by this agreement (the “Closing”), duly and validly executed and
delivered by the Seller and (assuming the due authorization, execution and
delivery by the other parties hereto and thereto) this Agreement constitutes,
and each of the Seller Documents when so executed and delivered will constitute,
legal, valid and binding obligations of the Seller, enforceable against the
Seller in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally, and subject, as to enforceability, to
general principles of equity, including principles of commercial reasonableness,
good faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3. Seller
owns the shares to be sold to ATME hereunder, free and clear of any and all
liens, charges or encumbrances or any kind or nature.
4. The
authorized capital stock of the Company consists of _________ shares of common
stock, of which [approximately 8,000,000 shares] are issued and outstanding all
of which are owned by Seller. All of the shares to be sold to the
ATME are duly authorized, validly issued, fully paid and
non-assessable. There are no options, warrants or other rights,
agreements, arrangements or commitments of any character relating to the issued
or unissued capital stock of the Company or obligating the Company to issue or
sell any shares of capital stock of or other equity interests in the
Company. There is no personal liability, and there are no preemptive
rights with regard to the capital stock of the Company, and no right-of-first
refusal or similar catch-up rights with regard to such capital stock. Except for
the transactions contemplated by this Agreement, there are no outstanding
contractual obligations or other commitments or arrangements of the Company to
(A) repurchase, redeem or otherwise acquire any shares (or any interest therein)
or (B) to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any other entity, or (C) issue or
distribute to any person any capital stock of the Company, or (D) issue or
distribute to holders of any of the capital stock of the Company any evidences
of indebtedness or assets of the Company. All of the outstanding
securities of the Company have been issued and sold by the Company in full
compliance with applicable federal and state securities laws or an exemption
available thereto.
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5. Neither
the execution and delivery by the Seller of this Agreement and the Seller
Documents, the consummation of the transactions contemplated hereby or thereby,
or compliance by the Seller with any of the provisions hereof or thereof will
(i) conflict with, violate, result in the breach or termination of, or
constitute a default under any note, bond, mortgage, indenture, license,
agreement or other instrument or obligation to which Seller is a party or by
which Seller or any of Seller’s properties or assets is bound; (ii) violate any
statute, rule, regulation, order or decree of any governmental body or authority
by which the Seller is bound; or (iii) result in the creation of any Lien upon
the properties or assets of the Company except, in case of clauses (ii) and
(iii) for such violations, breaches or defaults as would not, individually or in
the aggregate, have a Material Adverse Effect. No consent, waiver,
approval, order, permit or authorization of, or declaration or filing with, or
notification to, any person or governmental body is required on the part of the
Seller in connection with the execution and delivery of this Agreement or the
Seller Documents, or the compliance by the Seller as the case may be, with any
of the provisions hereof or thereof.
6. The
Company has good and marketable title to all of its assets free and clear of all
mortgages, pledges, security interests, charges, liens, restrictions and
encumbrances of any kind whatsoever, except as reflected on the books of the
Company and on the accompanying financial statements. Such assets include all of
the assets and properties held for use by the Company to conduct its business as
presently conducted. All of the Company’s tangible assets are in good
repair, have been well maintained and are in good operating condition, do not
require any material modifications or repairs, and comply in all material
respects with applicable laws, ordinances and regulations, ordinary wear and
tear excepted.
7. Unaudited
financial statements of the Company for the nine months ended September 30,
2008, are attached hereto as Exhibit A (collectively, the “Company Financial
Statements”). The Company Financial Statements were prepared in
accordance with GAAP consistently applied and fairly present the financial
position and results of operations of the Company as of the respective dates
thereof and for the periods covered thereby, all in accordance with
GAAP. The balance sheets contained in the Company Financial
Statements fairly reflect all liabilities of the Company of the types normally
reflected in balance sheets as of the dates thereof. The Company has elected to
eliminate the footnotes that would normally accompany a full set of financial
statements.
8. (A)
Except for tax returns for the fiscal year ended December 31, 2007 (which return
is in the process of being prepared and filed), all federal and state tax
returns required to be filed by or on behalf of the Company have been properly
prepared and duly and timely filed with the appropriate taxing authorities in
all jurisdictions in which such tax returns are required to be filed (after
giving effect to any valid extensions of time in which to make such filings),
and all such tax returns were true, complete and correct in all material
respects; (B) all Taxes payable by or on behalf of the Company or in respect of
its income, assets or operations have been fully and timely paid, and adequate
reserves or accruals for taxes have been provided with respect to any period for
which tax returns have not yet been filed or for which taxes are not yet due and
owing; and (C) neither Seller nor the Company has executed or filed with the
Internal Revenue Service (the “IRS”) or any other taxing authority any
agreement, waiver or other document or arrangement extending or having the
effect of extending the period for assessment or collection of taxes (including,
but not limited to, any applicable statute of limitation), and no power of
attorney with respect to any tax matter is currently in force, except as may
identified in Exhibit B, hereto. “Tax or taxes” means all federal,
state, local, payroll, excise, income or other taxes or similar governmental
charges, fees, levies or assessments.
9. The
Company has complied in all material respects with all applicable laws, rules
and regulations relating to the payment and withholding of taxes and has duly
and timely withheld from employee salaries, wages and other compensation and has
paid over to the appropriate taxing authorities all amounts required to be so
withheld and paid over for all periods under all laws. There are no
liens as a result of any unpaid taxes upon any of the assets of the
Company.
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10. Except as
would not reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect, the Company has (or will have, at Closing) good and
marketable title to that certain real property (the "Property") situated in the
City of Scottsdale, County of Maricopa, State of Arizona, free and clear of all
Liens of any nature whatsoever, except (i) statutory liens securing payments not
yet due (or being conducted in good faith and for which adequate reserves have
been established), (ii) liens for real property taxes not yet due and payable,
(iii) easements, rights of way, and other similar encumbrances that do not
materially affect the use of the properties or assets subject thereto or
affected thereby or otherwise materially impair business operations at such
properties, and (iv) such imperfections or irregularities of title or liens as
do not materially affect the use of the properties or assets subject thereto or
affected thereby or otherwise materially impair business operations at
such.
11. There is
no suit, action, proceeding, investigation, claim or order pending or, to the
knowledge of the Seller, overtly threatened against the Company (or to the
knowledge of the Seller, pending or threatened, against any of the officers,
directors or key employees of the Company with respect to their business
activities on behalf of the Company, or to which the Company is otherwise a
party, which, if adversely determined, would have a Material Adverse Effect,
before any court, or before any governmental department, commission, board,
agency, or instrumentality; nor to the knowledge of the Seller is there any
reasonable basis for any such action, proceeding, or investigation, except as
listed in Exhibit C, hereto.
12. The
Company is in compliance with all federal, state and local statutes, laws,
rules, regulations, orders and ordinances applicable to it or to the conduct of
its business or operations or the use of its properties (including any leased
properties) and assets, except for such non-compliances as would not,
individually or in the aggregate, have a Material Adverse Effect. The
Company has all governmental permits and approvals from state, federal or local
authorities which are required for it to operate its business, except for those
the absence of which would not, individually or in the aggregate, have a
Material Adverse Effect.
13. The
operations of the Company are in compliance with all applicable laws promulgated
by any governmental entity which prohibit, regulate or control any hazardous
material or hazardous material activity (“Environmental Laws”) and all permits
issued pursuant to Environmental Laws or otherwise and the Company has obtained
all permits required under all applicable Environmental Laws necessary to
operate its business. The Company has not received any written
communication alleging either or both that it may be in violation of any
Environmental Law, or any permit issued pursuant to Environmental Law, or may
have any liability under any Environmental Law, and there are no investigations
of the business, operations, or currently or previously owned, operated or
leased property of the Company pending or, to the Seller’s knowledge, threatened
which could lead to the imposition of any liability pursuant to Environmental
Law. The Company is indemnified by each client for which it provides
labor personnel against any environmental or other risks that should be the
obligation of the operating client. To the Seller’s knowledge, there is not
located at any of the properties of the Company any (i) underground storage
tanks, (ii) asbestos-containing material or (iii) equipment containing
polychlorinated biphenyls.
14. No
representation or warranty of the Seller or the Company contained in this
Agreement or in any schedule hereto or in any certificate or other instrument
furnished by the Seller to the Purchaser pursuant to the terms hereof, taken as
a whole, contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements contained herein or therein not
misleading.”
II.
“Survival of Reps and Warranties and Indemnification” are as
follows:
1. “All
representations and warranties made herein shall
survive the Closing for a period of 6 months, except that the representation
made under paragraph 3 of the section entitled “Reps and Warranties of the
Seller” shall survive the Closing for a period of 18
months.”
2. The ESSI and the Shareholders will execute the reps
and warranties substantially in the form provided, herein.
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3. There are no other liabilities direct or contingent
that are not on the books and record of ESSI at September 30, 2008, subject only
to slight variations on balance at close.
4. Shareholders will deliver the company stock
certificates at closing representing 100% of the issued and outstanding shares
of ESSI.
Agreed:
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/s/ Xxxxx
Xxxxx
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/s/
Xxxxxx X. Xxxxxxxx
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Xxxxx
Xxxxx, CEO and major shareholder
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Xx
Xxxxxxxx, Presdient and CEO for EMTA
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and
representing all shareholders of the
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Holdings,
Inc. and ATME Acquisitions, Inc.
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| Company |
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/s/
Xxxxx Xxxxx
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Xxxxx Xxxxx re: employment
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5
EXHIXIT A
–
[Financial
Statements to be provided]
EXHIBIT B
–
[Tax
Matters to be provided]
Exhibit C
–
[Litigation,
Pending, Threatened or Possible to be provided]
Exhibit D
-
[Employment
Agreement to be provided]
Exhibit E
–
[Option
holders list to be provided]
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