SHARE PURCHASE AGREEMENT
RELATING TO THE ACQUISITION OF ALL OF THE
OUTSTANDING CAPITAL STOCK OF
AMERICA'S PEO HOLDINGS, INC.
(A DELAWARE CORPORATION)
BY
CERTIFIED SERVICES, INC.
(A NEVADA CORPORATION)
TABLE OF CONTENTS
Section Page
1. Definitions.......................................................... 4
2. Purchase and Sale.................................................... 10
3. Representations and Warranties of Shareholders....................... 13
4. Representations and Warranties of Buyer.............................. 23
5. Covenants of Shareholders............................................ 24
6. Covenants of Buyer................................................... 27
7. Mutual Covenants..................................................... 27
8. Conditions Precedent to Obligations of Shareholders.................. 29
9. Conditions Precedent to Obligations of Buyer......................... 29
10. Indemnification...................................................... 30
11. Termination.......................................................... 33
12. General Matters...................................................... 34
13. Remedies............................................................. 36
14. Notices.............................................................. 36
15. Governing Law........................................................ 37
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Schedules
3.3 Shareholder Required Consents
3.4 Stock Ownership
3.5 Financial Statements
3.6 Encumbrances
3.7 Real Property
3.8 Tangible Personal Property
3.9 Non-Real Estate Leases
3.11 Inventory and Equipment
3.12 Liabilities
3.13 Taxes
3.15 Litigation
3.16 Contracts
3.17 Insurance
3.18(a) Intellectual Property
3.18(b) Intellectual Property Contracts
3.18(c) Know-How
3.19 Directors and Officers of the Company
3.20 ERISA
3.22(c) Compensation
3.22(h) Payments to Affiliates of the Company
3.23 Customers
3.28 Additional Information
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT is made as of November 15, by and among
CERTIFIED SERVICES, INC., a Nevada corporation ("Buyer"), AMERICA'S PEO
HOLDINGS, INC., a Delaware corporation (the "Company") and XXXXXXXX XXXXXXX,
XXXXXX XXXXXXXXXX and XXXX XXXXXX (collectively, the "Shareholders"). Certain
other terms are used herein as defined below in Section 1 or elsewhere in this
Agreement.
Background
Shareholders are the owners of all the issued and outstanding shares
(the "Shares") of capital stock of the Company. Buyer desires to purchase from
Shareholders, and Shareholders desire to sell to Buyer, all the Shares in
accordance with the provisions of this Agreement.
Witnesseth
NOW, THEREFORE, in consideration of the respective covenants contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
1. Definitions:
For convenience, certain terms used in more than one part of this
Agreement are listed in alphabetical order and defined or referred to below
(such terms as well as any other terms defined elsewhere in this Agreement shall
be equally applicable to both the singular and plural forms of the terms
defined).
"Acquisition Proposal" is defined in Section 5.3.
"Action" is defined in Section 10.6.
"Affiliates" (referred to herein at times as "AFFILIATES") means, with
respect to a particular party, persons or entities controlling, controlled by or
under common control with that party, as well as any officers, directors and
majority-owned entities of that party and of its other Affiliates, specifically
set forth, but not limited to America's PEO, Inc. Omni Financial Services, Inc.
National Labor Force, Inc., American Labor Services, Inc., National Labor Force
I, Inc., Western American Labor Force, Inc., Mid Atlantic Equities, Inc.,
Delaware Valley Properties, Inc. and Granhill Asset Management, Inc. For the
purposes of the foregoing, ownership, directly or indirectly, of 20% or more of
the voting stock or other equity interest shall be deemed to constitute control.
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"Agreement" means this Agreement and the Exhibits and Disclosure
Schedules hereto, as each may be amended, restated, supplemented or modified
from time to time.
"Assets" means all of the assets, properties, goodwill and rights of
every kind and description, real and personal, tangible and intangible, wherever
situated and whether or not reflected in the most recent Financial Statements,
that are owned or possessed by the Company.
"Balance Sheet" is defined in Section 3.5.
"Balance Sheet Date" is defined in Section 3.5.
"Benefit Plan" means: (i) as to employees employed in the United
States, any (y) "employee benefit plan" as defined in Section 3(3) of ERISA, and
(z) supplemental retirement, bonus, deferred compensation, severance, incentive
plan, program or arrangement or other employee fringe benefit plan, program or
arrangement; and (ii) as to employees employed outside the United States of
America, all employee benefit, health, welfare, supplemental unemployment
benefit, bonus, pension, profit sharing, deferred compensation, stock
compensation, stock purchase, retirement, hospitalization insurance, medical,
dental, legal, disability and similar plans or arrangements or practices.
"Business" means the Company's entire business, operations and facilities.
"Buyer Indemnified Party" is defined in Section 10.1.
"Buyer Required Consents" is defined in Section 4.3.
"Charter Documents" means an entity's certificate or articles of
incorporation, certificate defining the rights and preferences of securities,
articles of organization, general or limited partnership agreement, certificate
of limited partnership, joint venture agreement or similar document governing
the entity.
"Claim Notice" is defined in Section 10.4.
"Claim Response" is defined in Section 10.4(a).
"Closing" is defined in Section 2.1.
"Closing Certificates" means the certificates to be delivered by
Shareholders under Section 9.3 and any other provisions hereof.
"Closing Date" is defined in Section 2.1.
"Code" means the Internal Revenue Code of 1986, as amended.
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"Company Contracts" is defined in Section 3.16(b).
"Confidential Information" means any confidential information or trade
secrets of the Company, including personnel information, know-how and other
technical information, customer lists, customer information and supplier
information.
"Contract" means any written or oral contract, agreement, lease,
instrument, or other commitment that is binding on any person or its property
under applicable law.
"Copyrights" means all copyrights in both published works and
unpublished works.
"Court Order" means any judgment, decree, injunction, order or ruling
of any federal, state, local or foreign court or governmental or regulatory body
or authority that is binding on any person or its property under applicable law.
"Damages" is defined in Section 10.1.
"Default" means (a) a breach, default or violation, (b) the occurrence
of an event that with or without the passage of time or the giving of notice, or
both, would constitute a breach, default or violation or (c) with respect to any
Contract, the occurrence of an event that with or without the passage of time or
the giving of notice, or both, would give rise to a right of termination,
renegotiation or acceleration or a right to receive damages or a payment of
penalties.
"Disclosure Schedule" means the any of the Schedules containing
information relating to the Company or any Shareholder pursuant to Section 3 and
other provisions hereof that has been provided to Buyer on the date hereof.
"Encumbrances" means any lien, mortgage, security interest, pledge,
restriction on transferability, defect of title or other claim, charge or
encumbrance of any nature whatsoever on any property or property interest.
"Environmental Condition" is defined in Section 3.15(b).
"Environmental Law" means all Laws and Court Orders relating to
pollution or protection of public safety, safety or the environment as well as
any principles of common law under which a Party may be held liable for the
release or discharge of any materials into the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Date" is defined in Section 10.5.
"Financial Statements" is defined in Section 3.5.
"GAAP" means generally accepted accounting principles.
"Governmental Permits" means all governmental permits, licenses,
registrations, certificates of occupancy, approvals and other governmental
authorizations.
"Hazardous Substances" means any toxic or hazardous gaseous, liquid or
solid material or waste that may or could pose a hazard to the environment or
human health or safety including (i) any "hazardous substances" as defined by
the federal Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. (S)(S) 9601 et seq., (ii) any "extremely hazardous substance",
"hazardous chemical," or "toxic chemical" as those terms are defined by the
federal Emergency Planning and Community Xxxxx-xx-Xxxx Xxx, 00 X.X.X. (X)(X)
00000 et seq., (iii) any "hazardous waste," as defined under the federal Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42
U.S.C. (S)(S) 6901 et seq., (iv) any "pollutant," as defined under the federal
Water Pollution Control Act, 33 U.S.C. (S)(S) 1251 et seq., as any of such laws
in clauses (i) through (iv) as amended, and (v) any regulated substance or waste
under any Laws or Court Orders that have been enacted, promulgated or issued by
any federal, state or local governmental authorities concerning protection of
the environment.
"Immaterial Lease" is defined in Section 3.9.
"Indemnified Party" is defined in Section 10.4.
"Indemnitor" is defined in Section 10.4.
"Intellectual Property" means any Copyrights, Patents, Trademarks,
servicemarks, trade names, information, proprietary rights, processes,
technology rights and licenses, trade secrets, franchises, know-how, inventions
and other intellectual property.
"Knowledge" means actual knowledge.
"Inventory" means all inventory, including raw materials, supplies,
work in process and finished goods.
"Law" means any statute, law, ordinance, regulation, order or rule of
any federal, state, local, foreign or other governmental agency or body or of
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any other type of regulatory body, including those covering environmental,
energy, safety, health, transportation, bribery, recordkeeping, zoning,
anti-discrimination, antitrust, wage and hour, and price and wage control
matters.
"Liability" means any direct or indirect liability, indebtedness,
obligation, claim, loss, damage, deficiency, guaranty or endorsement of or by
the Company, absolute or contingent, accrued or unaccrued, due or to become due,
liquidated or unliquidated.
"Liquidated Claim Notice" is defined in Section 10.4(a).
"Litigation" means any lawsuit, action, arbitration, administrative or
other proceeding, criminal prosecution or governmental investigation or inquiry.
"Material Adverse Effect" means a material adverse effect on the
Business, including the Assets, financial condition, results of operations,
liquidity, products, competitive position, customers and customer relations
thereof.
"Minor Contract" means any Contract that is terminable by a party on
not more than 30 days' notice without any Liability and any Contract under which
the obligation of a party (fulfilled and to be fulfilled) involves an amount of
less than $5,000.
"Non-Real Estate Leases" is defined in Section 3.9.
"Ordinary course" or "ordinary course of business" means the ordinary
course of business that is consistent with past practices.
"Patents" means all patents, patent applications, and inventions and
discoveries that may be patentable.
"Person" means any natural person, corporation, partnership, limited
liability company, proprietorship, association, trust or other legal entity.
"Prime Rate" means the prime lending rate as announced from time to
time in The Wall Street Journal.
"Purchase Price" is defined in Section 2.1.
"Real Estate Leases" is defined in Section 3.7.
"Real Property" is defined in Section 3.7.
"Response Period" is defined in Section 10.4(a).
"Securities Act" means the Securities Act of 1933, as amended.
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"Shareholder Representatives" means any investment advisors,
accountants, counsel, agents or other Persons who may act on behalf of
Shareholders.
"Shareholder Required Consents" is defined in Section 3.3.
"Taxes" means all taxes, duties, charges, fees, levies or other
assessments imposed by any taxing authority including, without limitation,
income, gross receipts, value-added, excise, withholding, personal property,
real estate, sale, use, ad valorem, license, lease, service, severance, stamp,
transfer, payroll, employment, customs, duties, alternative, add-on minimum,
estimated and franchise taxes (including any interest, penalties or additions
attributable to or imposed on or with respect to any such assessment).
"Tax Return" means any return (including any information return),
report, statement, schedule, notice, form, estimate or declaration of estimated
tax relating to or required to be filed with any governmental authority in
connection with the determination, assessment, collection or payment of any Tax.
"Termination Date" is defined in Section 2.2.
"Trade Secrets" means all know-how, trade secrets, confidential
information, customer lists, software, technical information, data, process
technology, plans, drawings, and blue prints, owned, used or licensed (as
licensor or licensee) by the Company, except for any such item that is (i)
generally available to the public, (ii) becomes available to a Person on a non-
confidential basis from a source other than the Company or its representatives,
which has represented to the Person (and which the Person has no reason to
disbelieve after due inquiry) that it is entitled to disclose it or (iii) was in
the possession of or was known to the Person on a non-confidential basis prior
to the disclosure thereof to the Person by the Company or its representatives.
"Transaction Documents" means this Agreement and the documents
contemplated hereby.
"Transactions" means the sale of the Shares and the other transactions
contemplated by the Transaction Documents.
"Unliquidated Claim" is defined in Section 10.4(a).
"Welfare Plan" is defined in Section 3.20(g).
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2. Purchase and Sale
2.1. Purchase and Sale. Subject to the terms and conditions contained
in this Agreement, on the Closing Date, Shareholders shall sell, assign,
transfer and deliver to Buyer, and Buyer shall purchase from Shareholders, all
of the Shareholders' issued and outstanding shares of capital stock of any form,
class or designation of the Company, in exchange for a purchase price of
$17,500,000 (the "Purchase Price"), which shall be paid under the terms and
conditions as set forth herein.
2.1.1 Purchase Price The Purchase price for the Shareholders' Shares
shall be transferred to the Shareholders as follows: (i) shares of Buyer common
stock ("Buyer Shares") having an aggregate value of $12,200,000 ("Stock
Consideration"), (ii) certified check or wire transfer in the amount of
$1,100,000 (the "Cash Consideration"), (iii) two promissory notes in the
aggregate amount of $4,200,000, as described below ("Loan Consideration") and
(iv) earn-out payments related to the net profit, before taxes of the surviving
corporation as described below ("Incentive Consideration").
The Purchase Price shall be paid to the Shareholders pro rata in
accordance with their holdings of shares of Company Common Stock immediately
prior to the Closing (their "Pro Rata Portion")
Notwithstanding the foregoing, the Stock Consideration or Loan
Consideration, at the option of CSRV shall be reduced by $825,000 for each year
in fiscal years 2002, 2003 and 2004 in which the net profit, before taxes is
less than $900,000, excluding consulting fees charged by Buyer and fees and
charges associated with the Buyer's cost of remaining a reporting company with
the Securities and Exchange Commission, provided that Sellers may unanimously
elect to allocate, as additional net profit, before taxes for any such year,
Incentive Consideration otherwise due them. Such reduction shall be allocated
against the first payment to be made to Sellers after determination and shall be
allocated in accordance with each Seller's Pro Rata Portion.
(a) Payment of Cash Consideration. The Cash Consideration shall be paid
on the Closing Date in immediately available by wire transfer to an account or
accounts designated by Sellers to Buyer in writing.
(b) Issuance of Stock Consideration. The Stock Consideration shall be
issued and delivered by the Buyer to the Sellers as follows: (i) on the Closing
Date, the Buyer shall issue to the Sellers one share of Buyer's Class B
Preferred Stock which shall be convertible into a total of 4,066,667
newly-issued Buyer Shares valued at $3.00 per share and distributed to the
Shareholders in the following manner: Xxxxxxxx Xxxxxxx 1,850,333; Xxxxxx
Xxxxxxxxxx 1,108,167; Xxxx Xxxxxx 1,108,167. The Class B Preferred Stock shall
not be convertible until Buyer's shareholders have approved a reverse stock
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split of the Buyer's issued and outstanding common stock on a 1 for 10 basis.
The "value" of the Buyer Shares delivered on such post-Closing anniversary date
shall be the Average Closing Sale Price (as defined above) for the Buyer Shares
during the period commencing 18 trading days before the issuance date and ending
3 trading days before the issuance date.
(c) Incentive Consideration. Incentive Consideration shall be earned by
and paid to the Sellers based on the following schedule of net profit before
taxes ("NBTA") commencing for the year 2002: (i) twenty-five percent (25%) of
the NBTA between $1 and $999,999; (ii) twenty percent (20%) of NBTA between
$1,000,000 and $1,999,999; (iii) fifteen percent (15%) of NBTA between
$2,000,000 and $2,999,999; and (iv) ten percent (10%) of NBTA in excess of
$3,000,000.
(d) Loan Consideration. Buyer shall execute two (2) promissory notes.
The first promissory note shall be in the principal sum of $3,200,000, payable
in four equal, annual installments of principal and interest commencing fifteen
(15) days after the Buyer has filed each annual report with the Securities and
Exchange Commission for the fiscal year 2002. If Buyer fails to maintain its
status as a reporting entity, the Earnout Payments shall be made as promptly as
practicable(the "Principal Payments"). The second promissory note shall be in
the principal sum of $1,000,000, payable in equal, monthly installments over
five years, commencing January 10, 2002, to the Sellers.
The Principal Payments will be retired, without further notice, at the
option of the Buyer, upon any of the following: (i) the Company's making an
assignment for the benefit of creditors or admitting in writing its inability to
pay its debts generally as they become due; or (ii) the entry of an order,
judgment or decree adjudicating the Company or any subsidiary bankrupt or
insolvent; or (iii) the Company's petitioning or applying to any tribunal for
the appointment of a trustee or receiver of the Company within the meaning of
the Securities Act, or of any substantial part of the assets of the company, or
commencing any proceedings (other than proceedings for the voluntary liquidation
and dissolution of a subsidiary) relating to the Company or a subsidiary under
any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation law of any jurisdiction whether now or hereafter in
effect; or (iv) the filing of any such petition or application, or the
commencement of any such proceedings, against the Company, if the Company by any
act indicates its approval thereof, consent or acquiescence therein, or the
entry of an order, judgment or decree appointing any such trustee or receiver,
or approving the petition in any such proceedings, if such order, judgment or
decree remain unstayed and in effect for more than 60 days; or (v) the entry of
any order, judgment, or decree in any proceedings against the Company or any
subsidiary within the meaning of the Securities Act decreeing the dissolution of
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the company if such order, judgment or decree remains unstayed and in effect for
more than 60 days; or (vi) the entry of any order, judgment or decree in any
proceedings against the Company or any subsidiary decreeing a split-up of the
Company which requires the divestiture of a substantial part of the consolidated
assets of the Company and it subsidiaries.
(e) Payment of Incentive Consideration. The Earnout Payments shall be
made by the Buyer fifteen (15) days after the Buyer has filed its annual report
with the Securities and Exchange Commission. If Buyer fails to maintain its
status as a reporting entity, the Earnout Payments shall be made as promptly as
practicable. Cash Earnout Payments shall be made to Sellers in immediately
available funds..
(f) Final Payment Following Fifth Anniversary of Closing. If, as of the
fifth anniversary date of the Closing, the value realized (as defined below)
from the sale of the Stock Consideration by any Seller is less than such
Seller's Pro Rata Portion of $8,052,000, then Buyer shall pay to such Seller in
shares of Buyer's common stock in an amount equal to the difference between (i)
such Seller's Pro Rata Portion of $8,052,000, and (ii) the Total Cash Realized
by such Seller (the "Final Payment"). Such payment shall be made in a number of
shares equal to such difference divided by a denominator equal to the fifteen
(15) day average bid close price of Buyer's common stock. For purposes hereof,
the "value realized" shall be equal to the gross cash proceeds received by
Seller in respect of sales of his Stock Consideration plus the value of any
Stock Consideration that has been registered and is freely tradable still held
by such Seller (or transferred by a Seller for less than fair value, such
transfers not being deemed "sales" for purposes of determining "value realized"
hereunder) on such fifth anniversary date.
2.2. Closing. The closing (the "Closing") of the sale and purchase of
the Shares shall take place at the offices of the Company, commencing at 10:00
A.M., local time, on or before November 15, 2001, at 11:00 a.m. at the offices
of Levy Boonshoft & Xxxxxxxx, P.C., but not later than January 31, 2002 (the
"Termination Date"). The date of the Closing is sometimes herein referred to as
the "Closing Date."
2.3. Items to be Delivered Immediately Prior to or at Closing. At the
Closing: (i) in exchange for the payment by Buyer to Shareholders of the
Purchase Price, Shareholders shall deliver to Buyer a certificate or
certificates representing all of the Shares, duly endorsed in blank or
accompanied by stock powers duly executed in blank, (ii) Shareholders shall also
deliver to Buyer, and Buyer shall deliver to Shareholders, the certificates
referred to in Sections 8 and 9, and (iii) Buyer shall deliver to each of the
Shareholders the Purchase Price pro rata in accordance with their holding of
shares of Company Common Stock, immediately prior to the Closing.
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3. Representations and Warranties of Shareholders
Each Shareholder hereby represents and warrants to Buyer the
representations and warranties set forth in Sections 3.2 and 3.3 and Xxxxxxxx
Xxxxxxx, Xxxxxx Xxxxxxxxxx and Xxxx Xxxxxxxxx, jointly and severally, hereby
represent and warrant to Buyer the representations and warranties in this
Section 3.
3.1. Corporate Status. The Company and Affiliates are corporations duly
organized, validly existing and in good standing under the Laws of the State of
Delaware and are qualified to do business as foreign corporations in any
jurisdiction where required to be so qualified. The Charter Documents and bylaws
of the Company and the Affiliates that have been delivered to Buyer as of the
date hereof are effective under applicable Laws and are current, correct and
complete.
3.2 Authorization Each Shareholder has the requisite power and
authority to execute and deliver the Transaction Documents to which it is a
party and to perform the Transactions performed or to be performed by it. Each
Transaction Document executed and delivered by Shareholders has been duly
executed and delivered by each Shareholder and constitutes a valid and binding
obligation of Shareholders, enforceable against such Shareholder in accordance
with its terms.
3.3 Consents and Approvals. Neither the execution and delivery by any
Shareholder of the Transaction Documents to which it is a party, nor the
performance of the Transactions performed or to be performed by any Shareholder,
require any filing, consent or approval, constitute a Default or cause any
payment obligation to arise under (a) any Law or Court Order to which any
Shareholder is subject, (b) the Charter Documents or bylaws of the Company and
the Affiliates or (c) any Contract, Governmental Permit or other document to
which the Company or the Affiliates is a party or by which the properties or
other assets of the Company or the Affiliates may be subject.
3.4 Stock Ownership
(a) The Shareholders are the sole record and beneficial owners of all
of the issued and outstanding shares of capital stock of any form, class and
designation (and options to purchase capital stock) of the Company and the
Affiliates, and the respective shares owned by the Shareholders are specified on
SCHEDULE 3.4. There are no existing options, warrants, calls, commitments or
other rights of any character (including conversion or preemptive rights)
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relating to the acquisition of any issued or unissued common stock or other
securities of the Company or the Affiliates.
(b) the Shareholders recognize that the Buyer would have no adequate
remedy at law if the Shareholders have created, issued or otherwise any shares
of the capital stock not set forth in SCHEDULE 3.4. Therefore, the Shareholders
hereby agree and covenant that the existence of any shares not set forth in
SCHEDULE 3.4 shall result in the incurring of liquidated damages in the amount
of Twenty Million Dollars ($20,000,000) and the revocation of any of the
obligations of the Buyer in this Agreement. The parties herein acknowledge that
the damages to the Buyer as a result of the Shareholder's breach of this section
could not be easily computed. This amount is not intended to be a penalty.
3.5. Financial Statements. Attached hereto as SCHEDULE 3.5 are the
following financial statements of the Company and the Affiliates (collectively,
the "Financial Statements"): (i) the audited balance sheets as of December 31,
1999 and December 31, 2000 and the audited related statements of operations,
shareholders' equity and cash flows for the fiscal years ended December 31, 1999
and December 31, 2000, and (ii) the unaudited profit and loss statements for the
fiscal quarter ended September 30, 2001. The Financial Statements have been
prepared in accordance with GAAP and (with the exception of Note 6 (Income
Taxes)) present fairly, in all material respects, the financial position of the
Company, and the results of its operations and its cash flows for the period
then ended.
3.6. Title to Assets and Related Matters The Company and the Affiliates
have good and marketable title to, valid leasehold interests in or valid
licenses to use, all of their Assets, free from any Encumbrances except those
specified in SCHEDULE 3.6. The use of the Assets are not subject to any
Encumbrances (other than those specified in the preceding sentence), and such
use does not, to the Knowledge of the Shareholders, encroach on the property or
rights of anyone else. Except as set forth on SCHEDULE 3.11, all tangible
personal property (other than Inventory) included in the Assets are suitable for
the purposes for which they are used, in good working condition, reasonable wear
and tear excepted, and are free from any known defects.
3.7. Real Property SCHEDULE 3.7 describes all real estate used in the
operation of the Business as well as any other real estate that is owned, in the
possession of or leased by the Company and the improvements (including and other
structures) located on such real estate (collectively, the "Real Property"), and
lists any lease buildings under which any such Real Property is possessed (the
"Real Estate Leases"). SCHEDULE 3.7 also describes any other real estate
previously owned, leased, occupied or otherwise operated by the Company and the
time periods of any such ownership, lease, occupation or operation. All of the
Real Property (a) is usable in the ordinary course of business and (b) to
Shareholders' Knowledge, conforms with any applicable Laws relating to its
construction, use and operation and with applicable zoning Laws. The Company,
the Affiliates or the landlord of any Real Property leased by the Company or the
Affiliates have obtained all licenses and rights-of-way from governmental
entities or private parties that are necessary to ensure vehicular and
pedestrian ingress and egress to and from the Real Property.
3.8. Certain Personal Property. SCHEDULE 3.8 describes all items of
tangible personal property that were included in the Balance Sheet at a net book
value of at least $_______. Except as specified in SCHEDULE 3.8, since the
Balance Sheet Date, the Company has not acquired any items of tangible personal
property that have a carrying value in excess of $________. All of such personal
property included in SCHEDULE 3.8 is, and any such personal property acquired
after the date hereof in accordance with Section 5.1 will be, usable in the
ordinary course of business, and all such personal property included in SCHEDULE
3.8 conforms, and all of such personal property acquired after the date hereof
will conform, with any applicable Laws relating to its construction, use and
14
operation. Except for those items subject to the Non-Real Estate Leases and
certain computer hardware and software owned by the Company's employees or
consultants with an aggregate value of less than $5,000, no Person other than
the Company or the Affiliates owns any vehicles, material equipment or other
material tangible assets located on the Real Property that have been used in the
Business or that are necessary for the operation of the Business.
3.9. Non-Real Estate Leases SCHEDULE 3.9 lists all assets and property
(other than Real Property) that are possessed by the Company or the Affiliates
under an existing lease, including all trucks, automobiles, forklifts,
machinery, equipment, furniture and computers, except for any lease under which
the aggregate annual payments are less than $10,000 (each, an "Immaterial
Lease"). SCHEDULE 3.9 also lists the leases under which such assets and property
listed in SCHEDULE 3.8 are possessed. All of such leases (excluding Immaterial
Leases) are referred to herein as the "Non-Real Estate Leases."
3.10. Accounts Receivable All accounts receivable of the Company (a)
are valid and genuine, (b) arise out of bona fide sales and deliveries of goods,
performance of services or other business transactions, (c) are not subject to
valid defenses, set-offs or counterclaims other than normal returns and
allowances and (d) were generated only in the ordinary course of business.
3.11. Inventory and Equipment. All inventory and equipment of the
Company and the Affiliates reflected on the Balance Sheet, and all inventory and
equipment owned by the Company or the Affiliates was acquired and has been
maintained in accordance with their regular business practices, consists of
items of a quality and quantity useable in the ordinary course of their business
consistent with past practice, and is valued in conformity with generally
15
accepted accounting principles applied on a consistent basis; except as set
forth on SCHEDULE 3.11, no significant amount of such inventory or equipment is
obsolete.
3.12. Liabilities The Company or the Affiliates do not have any
material Liabilities, other than (a) Liabilities specified in SCHEDULE 3.12, (b)
Liabilities specified in the Balance Sheet (except as heretofore paid or
discharged), (c) Liabilities incurred in the ordinary course since the Balance
Sheet Date that, individually or in the aggregate, are not material to the
Business, or (d) Liabilities under any Contracts that were not required under
GAAP to have been specifically disclosed or reserved for on the Balance Sheet.
3.13. Taxes
(a) The Company has timely filed all Tax Returns required to be filed
on for the Company and the Affiliates or before the Closing Date and all such
Tax Returns are true, correct and complete in all respects. The Company has paid
in full on a timely basis all Taxes owed by it, whether or not shown on any Tax
Return, except where the failure to file such return or pay such taxes would not
have a Material Adverse Effect. No claim has ever been made by any authority in
any jurisdiction where the Company does not file Tax Returns that the Company
may be subject to taxation in that jurisdiction.
(b) The amount of the Company's liability for unpaid Taxes as of the
Balance Sheet Date did not exceed the amount of the current liability accruals
for Taxes (excluding reserves for deferred Taxes) shown on the Balance Sheet.
(c) There are no ongoing examinations or claims against the Company for
Taxes, and no notice of any audit, examination or claim for Taxes, whether
pending or threatened, has been received. The Company has not waived or extended
the statute of limitations with respect to the collection or assessment of any
Tax.
(d) The Company has a taxable year ended on December 31, in each year
commencing from the incorporation of the Company. The Company currently utilizes
the cash method of accounting for income Tax purposes and such method of
accounting has not changed in the past 10 years.
(e) The Company has withheld and paid over to the proper governmental
authorities all Taxes required to have been withheld and paid over, and complied
with all information reporting and backup withholding requirements, including
maintenance of required records with respect thereto, in connection with amounts
paid to any employee, independent contractor, creditor or third party.
16
(f) Copies of (A) any Tax examinations, (B) extensions of statutory
limitations for the collection or assessment of Taxes and (C) the Tax Returns of
the Company and each Subsidiary for the last two fiscal years have been made
available to Buyer
(g) There are (and as of immediately following the Closing there will
be) no Liens on the assets of the Company relating to or attributable to Taxes,
except for liens for Taxes not yet due. To the Shareholders' Knowledge, there is
no basis for the assertion of any claim relating to or attributable to Taxes
which, if adversely determined, would result in any Lien on the assets of the
Company or otherwise have an adverse effect on the Company or its business.
(h) There are no contracts, agreements, plans or arrangements,
including but not limited to the provisions of this Agreement, covering any
employee or former employee of the Company that, individually or collectively,
would reasonably be expected to give rise to any payment (or portion thereof)
that would not be deductible pursuant to Sections 280G, 404 or 162 of the Code.
The Company has not filed a consent under Section 341(f) of the Code. The
Company is not and has not been a United States real property holding company
within the meaning of Section 897(c) during the period specified in Section
897(c)(1)(A)(ii).
(i) The Company has not been at any time, a party to a tax sharing, tax
indemnity or tax allocation agreement, and the Company has not assumed the tax
liability of any other person under contract.
3.14. Subsidiaries Following is a list of the Company's wholly-owned
subsidiaries (as defined herein as "Affiliates") of which the Company is the
owner of all issued and outstanding shares of capital stock in any form, class
and designation:
America's PEO, Inc.
Omni Financial, Inc.
American Labor Force, Inc.
American Labor Services, Inc.
Western America Labor Force, Inc.
National Labor Force, Inc.
National Labor Force I, Inc.
Mid-Atlantic Equities, Inc.
Delaware Valley Properties, Inc.
3.15. Legal Proceedings and Compliance with Law.
(a) There is no Litigation that is pending or, to Shareholders'
Knowledge, threatened against the Company or the Affiliates. To the Shareholders
Knowledge, there has been no Default under any Laws applicable to the Company or
17
the Affiliates, including Laws relating to pollution or protection of the
environment, and the Company and the Affiliates have not received any notices
from any governmental entity regarding any alleged Defaults under any Laws.
There has been no Default with respect to any Court Order applicable to the
Company or the Affiliates.
(b) Without limiting the generality of Section 3.15(a), to the
Shareholders' Knowledge, there is not and never has been any Environmental
Condition (i) at the premises at which the Business has been conducted by the
Company, the Affiliates, or any predecessor of the Company, (ii) (A) at any
property owned, leased, occupied or operated at any time by the Company or (B)
at any property owned, leased, occupied or operated at any time by any Person
controlled by the Company, the Affiliates or any predecessor of any of them in
connection with the Business, or (iii) at any property at which wastes have been
deposited or disposed by, from or at the behest or direction of any of the
foregoing, nor has the Company or the Affiliates received written notice of any
such Environmental Condition. "Environmental Condition" means any condition or
circumstance, including the presence of Hazardous Substances, whether created by
the Company or any third party, at or relating to any such property or premises
specified in any of clauses (i) through (iii) above that did, does or may
reasonably be expected to (A) require abatement or correction under an
Environmental Law, (B) give rise to any civil or criminal liability on the part
of the Company under an Environmental Law, or (C) create a public or private
nuisance.
(c) The Company has delivered to Buyer complete copies of any written
reports, studies or assessments in the possession or control of the Company, the
Affiliates, or any Shareholder that relate to any Environmental Condition and to
the Business or any Assets and has identified on SCHEDULE 3.15 all other
reports, studies and assessments of which the Company or any Shareholder has
Knowledge.
(d) The Company has obtained and is in full compliance with all
material Governmental Permits, along with their respective expiration dates,
that are required for the complete operation of the Business as currently
operated or that relates to the Real Property, (ii) all of such Governmental
Permits are currently valid and in full force and (iii) the Company has filed
such timely and complete renewal applications as may be required with respect to
its Governmental Permits. To Shareholders' Knowledge, no revocation,
cancellation or withdrawal thereof has been threatened.
18
3.16 Contracts
(a) SCHEDULE 3.16 lists all Contracts of the following types to which
the Company or the Affiliates are a party or by which they are bound, except for
Minor Contracts:
(i) Contracts with any present or former shareholder, director,
officer, employee, partner or consultant of the Company or any
Affiliate thereof.
(ii) Contracts for the future purchase of, or payment for,
supplies or products, or for the lease of any real or personal
property from or the performance of services by a third party;
(iii) Contracts to sell or supply products or to perform services
that involve an amount in excess of $5,000 in any individual case;
(iv) Contracts to lease to or to operate for any other party any
real or personal property that involve an amount in excess of $5,000
in any individual case;
(v) Any notes, debentures, bonds, conditional sale agreements,
equipment trust agreements, letter of credit agreements, reimbursement
agreements, loan agreements or other Contracts for the borrowing or
lending of money (including loans to or from officers, directors,
partners, shareholders or Affiliates of the Company or any members of
their immediate families), agreements or arrangements for a line of
credit or for a guarantee of, or other undertaking in connection with,
the indebtedness of any other Person;
(vi) Any Contracts under which any Encumbrances exist; and
(vii) Any other Contracts (other than Minor Contracts and those
described in any of (i) through (vi) above) not made in the ordinary
course of business.
(b) The Contracts listed in SCHEDULE 3.16 and the Minor Contracts
excluded from SCHEDULE 3.16 based on the term or amount thereof are referred to
herein as the "Company Contracts." The Company or the Affiliates are not in
material Default under any Company Contract (including any Real Estate Leases
and Non-Real Estate Leases). The Company and the Affiliates have not received
any communication from, or given any communication to, any other party
indicating that the Company, the Affiliates, or such other party, as the case
may be, is in Default under any Company Contract. To the Knowledge of the
Shareholders, (i) none of the other parties in any such Company Contract is in
Default thereunder, and (ii) each such Company Contract is enforceable against
any other parties thereto in accordance with terms thereof.
19
3.17 Insurance SCHEDULE 3.17 lists all policies or binders of insurance
held by or on behalf of the Company and the Affiliates, specifying with respect
to each policy the insurer, the amount of the coverage, the type of insurance,
the risks insured, the expiration date, the policy number and any pending claims
thereunder. To the Shareholders' Knowledge, there is no Default with respect to
any such policy or binder, nor has there been any failure to give any notice or
present any claim under any such policy or binder in a timely fashion or in the
manner or detail required by the policy or binder. There is no notice of
nonrenewal or cancellation with respect to, or disallowance of any claim under,
any such policy or binder that has been received by the Company.
3.18 Intellectual Property
(a) Intellectual Property. The Company has good and valid title to and
ownership of all Intellectual Property necessary for its Business and operations
(as now conducted and as proposed to be conducted). A list of all Intellectual
Property owned by the Company or the Affiliates is set forth on SCHEDULE
3.18(A). There are no outstanding options, licenses or agreements of any kind to
which the Company or the Affiliates are a party or by which they are bound
relating to any Intellectual Property, whether owned by the Company, the
Affiliates, or another person, except as disclosed on SCHEDULE 3.18(A). To the
Knowledge of the Shareholders, the business of the Company as formerly and
presently conducted did not and does not conflict with or infringe upon any
Intellectual Property right, owned or claimed by another.
(b) Contracts. SCHEDULE 3.18(B) contains a complete and accurate list
and summary description, including any royalties paid or received by the Company
or the Affiliates, of all Contracts relating to the Intellectual Property to
which the Company is a party or by which the Company is bound, except for any
license implied by the sale of a product and perpetual, paid-up licenses for
commonly available software programs with a value of less than $5,000 under
which the Company is the licensee. There are no outstanding and, to
Shareholders' Knowledge, no threatened disputes or disagreements with respect to
any such agreement.
(c) Know-How Necessary for the Business The Intellectual Property
included in the Assets constitutes all of the Intellectual Property that is, to
the Shareholders Knowledge, necessary for the operation of the Business as it is
currently conducted. Except as described on SCHEDULE 3.18(C), the Company and
the Affiliates are the owner of all right, title and interest in and to each
item of Intellectual Property, free and clear of any Encumbrances, and to the
Knowledge of the Shareholders have the right to use without payment to a third
party all of the Intellectual Property.
20
3.19 Employees The Company and the Affiliates are not (a) a party to,
involved in or, to Shareholders' Knowledge, threatened by, any labor dispute or
unfair labor practice charge, or (b) currently negotiating any collective
bargaining agreement. The Company has not experienced during the last three
years any work stoppage. Shareholders have delivered to Buyer a complete and
correct list of the names and salaries, bonus and other cash compensation of all
employees (including officers) of the Company. SCHEDULE 3.19 lists the directors
and officers of the Company.
3.20 ERISA
(a) SCHEDULE 3.20 contains a complete list of all Benefit Plans
sponsored or maintained by the Company or the Affiliates or under which the
Company or the Affiliates are obligated. Shareholders have delivered to Buyer
(i) accurate and complete copies of all such Benefit Plan documents and all
other material documents relating thereto, including (if applicable) all summary
plan descriptions, summary annual reports and insurance contracts, (ii) accurate
and complete detailed summaries of all unwritten Benefit Plans, (iii) accurate
and complete copies of the most recent financial statements and actuarial
reports with respect to all such Benefit Plans for which financial statements or
actuarial reports are required or have been prepared and (iv) accurate and
complete copies of all annual reports for all such Benefit Plans (for which
annual reports are required) prepared within the last three years. Each such
Benefit Plan providing benefits that are funded through a policy of insurance is
indicated by the word "insured" placed by the listing of the Benefit Plan in the
SCHEDULE 3.20.
(b) To the Knowledge of any of the Shareholders, all such Benefit Plans
conform (and at all times have conformed) in all material respects to, and are
being administered and operated (and have at all time been administered and
operated) in material compliance with, the requirements of ERISA, the Code and
all other applicable Laws. All returns, reports and disclosure statements
required to be made under ERISA and the Code with respect to all such Benefit
Plans have been timely filed or delivered. To the Knowledge of any of the
Shareholders, there have not been any "prohibited transactions," as such term is
defined in Section 4975 of the Code or Section 406 of ERISA involving any of the
Benefit Plans, that could subject any Shareholder or the Company to any material
penalty or tax imposed under the Code or ERISA.
(c) Except as is set forth in SCHEDULE 3.20, any such Benefit Plan that
is intended to be qualified under Section 401(a) of the Code and exempt from tax
under Section 501(a) of the Code has been determined by the Internal Revenue
Service to be so qualified or an application for such determination is pending.
Any such determination that has been obtained remains in effect and has not been
revoked, and with respect to any application that is pending, the Company does
not have any reason to suspect that such application for determination will be
21
denied. Nothing has occurred since the date of any such determination that is
reasonably likely to affect adversely such qualification or exemption, or result
in the imposition of excise taxes or income taxes on unrelated business income
under the Code or ERISA with respect to any such Benefit Plan.
(d) The Company or the Affiliates do not sponsor a defined benefit plan
subject to Title IV of ERISA, nor does it have a current or contingent
obligation to contribute to any multi employer plan (as defined in Section 3(37)
of ERISA). The Company does not have any liability with respect to any employee
benefit plan (as defined in Section 3(3) of ERISA) other than with respect to
such Benefit Plans.
(e) There are no pending or, to Shareholders' Knowledge, any threatened
claims by or on behalf of any such Benefit Plans, or by or on behalf of any
individual participants or beneficiaries of any such Benefit Plans, alleging any
breach of fiduciary duty on the part of the Company, the Affiliates, or any of
its officers, directors or employees under ERISA or any other applicable
regulations, or claiming benefit payments (other than those made in the ordinary
operation of such plans), nor is there, to Shareholder's Knowledge, any basis
for such claim. The Benefit Plans are not the subject of any pending (or to
Shareholder's Knowledge, any threatened) investigation or audit by the Internal
Revenue Service or the Department of Labor.
(f) The Company and the Affiliates have timely made all required
contributions under such Benefit Plans.
(g) With respect to any such Benefit Plan that is an employee welfare
benefit plan (within the meaning of Section 3(1) of ERISA) (a "Welfare Plan")
and except as specified in SCHEDULE 3.20, (i) each Welfare Plan for which
contributions are claimed by the Company as deductions under any provision of
the Code complies with all applicable requirements pertaining to such deduction,
(ii) with respect to any welfare benefit fund (within the meaning of Section 419
of the Code) related to a Welfare Plan, there is no disqualified benefit (within
the meaning of Section 4976(b) of the Code) that would result in the imposition
of a tax under Section 4976(a) of the Code, (iii) any Benefit Plan that is a
group health plan (within the meaning of Section 4980B(g)(2) of the Code)
complies, and in each and every case has complied, with all of the applicable
requirements of Section 4980B of the Code, ERISA, Title XXII of the Public
Health Service Act and the Social Security Act, and (iv) all Welfare Plans may
be amended or terminated at any time on or after the Closing Date. Except as
specified in SCHEDULE 3.20, no Benefit Plan provides any health, life or other
welfare coverage to employees of the Company beyond termination of their
22
employment with the Company by reason of retirement or otherwise, other than
coverage as may be required under Section 4980B of the Code or Part 6 of ERISA,
or under the continuation of coverage provisions of the laws of any state or
locality.
3.21 Corporate Records. The minute books of the Company and the
Affiliates contain complete, correct and current copies of their Charter
Documents and bylaws and of all minutes of meetings, resolutions and other
proceedings of its Board of Directors and shareholders. The stock record books
of the Company and the Affiliates are complete, correct and current.
3.22. Absence of Certain Changes Except as contemplated by this
Agreement, the Company and the Affiliates have conducted the Business in the
ordinary course since inception, and there has not been with respect to the
Business any of the items specified below since the Balance Sheet Date:
(a) any change that has had or is reasonably likely to have a Material
Adverse Effect;
(b) any distribution or payment declared or made in respect of its
common stock by way of dividends, purchase or redemption of shares or otherwise;
(c) any increase in the compensation payable or to become payable to
any director, officer, employee or agent, except for increases for non-officer
employees made in the ordinary course of business, nor any other change in any
employment or consulting arrangement except in the ordinary course of business;
(d) any sale, assignment or transfer of Assets, or any additions to or
transactions involving any Assets, other than those made in the ordinary course
of business;
(e) other than in the ordinary course of business, any waiver or
release of any claim or right or cancellation of any debt held;
(f) materially decrease its working capital;
(g) other than in the ordinary course of business, any incurrence of
indebtedness for borrowed money or issuance of any debt securities; or
(h) any payments to any Affiliate of the Company,
3.23. Customers The Company has used reasonable business efforts to
maintain, and currently maintains, good working relationships with all of its
customers. SCHEDULE 3.23 contains a list of the names of each of the 10
customers that, in the aggregate, for the period from January 1, 2001 through
September 30, 2001 were the largest dollar volume customers of products or
services, or both, sold by the Company. None of such customers has given the
23
Company or the Affiliates written notice terminating, canceling or threatening
to terminate or cancel any Contract or relationship with the Company or the
Affiliates.
3.24 Previous Sales; Warranties. The Company or the Affiliates have not
breached any express or implied warranties in connection with the sale or
distribution of goods or the performance of services, except for breaches that,
individually and in the aggregate, are not material and are consistent with the
past practices of the Business.
3.25 Finder's Fees No Person retained by the Company, the Affiliates or
any Shareholder is or will be entitled to any commission or finder's or similar
fee in connection with the Transactions.
3.26 Accuracy of Information. To the Shareholders' Knowledge, no
representation or warranty by the Company, the Affiliates or any Shareholder in
any Transaction Document, and no information contained therein contains any
untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances under which such statements were made.
3.27 Intentionally Omitted
3.28 Additional Information SCHEDULE 3.28 accurately lists the
following:
(a) the names and addresses of every bank or other financial
institution in which the Company or the Affiliates maintain an account (whether
checking, saving or otherwise), lock box or safe deposit box, and the account
numbers and names of Persons having signing authority or other access thereto;
and
(b) all names under which the Company or the Affiliates have conducted
the Business or which it has otherwise used at any time during the past five
years.
4. Representations and Warranties of Buyer
Buyer hereby represents and warrants to Shareholders as follows:
4.1 Organizational Status Buyer is a corporation duly organized,
validly existing and in good standing under the Laws of the State of Nevada and
is qualified to do business in any jurisdiction where it is required to be so
qualified. The Charter Documents of Buyer that have been delivered to
Shareholders as of the date hereof are effective under applicable Laws and are
current, correct and complete.
24
4.2 Authorization. Buyer has the requisite power and authority to own
its assets and to carry on its business. Buyer has the requisite power and
authority to execute and deliver the Transaction Documents to which it is a
party and to perform the Transactions performed or to be performed by it. Such
execution, delivery and performance by Buyer have been duly authorized by all
necessary corporate action. Each Transaction Document executed and delivered by
Buyer has been duly executed and delivered by Buyer and constitutes a valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms.
4.3 Consents and Approvals. Neither the execution and delivery by Buyer
of the Transaction Documents to which it is a party, nor the performance of the
Transactions performed or to be performed by Buyer, require any filing, consent
or approval, constitute a Default or cause any payment obligation to arise under
(a) any Law or Court Order to which Buyer is subject, (b) the Charter Documents
or bylaws of Buyer or (c) any Contract, Governmental Permit or other document to
which Buyer is a party or by which the properties or other assets of Buyer may
be subject.
4.4. Finder's Fees. No Person retained by Buyer is or will be entitled
to any commission or finder's or similar fee in connection with the
Transactions.
4.5. Accuracy of Information. To Buyer's actual knowledge, no
representation or warranty by Buyer in any Transaction Document, and no
information contained therein or otherwise delivered by or on behalf of Buyer to
any other Party in connection with the Transactions contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements contained herein or therein not misleading in light
of the circumstances under which such statements were made.
5. Covenants of Shareholders.
5.1 Conduct of the Business. Except as contemplated or otherwise
consented to by Buyer in writing, after the date of this Agreement the Company
shall carry on the Business in the ordinary course. In furtherance of and in
addition to such restriction, (a) the Company shall not: amend its Charter
Documents or bylaws; merge or consolidate with, or purchase substantially all of
the assets of, or otherwise acquire any business of, any corporation,
partnership or other business organization or business division thereof; split,
combine or reclassify its outstanding capital stock; enter into any Contract or
otherwise incur any Liability outside the ordinary course of business; discharge
or satisfy any Encumbrance or pay or satisfy any material Liability except
25
pursuant to the terms thereof; compromise, settle or otherwise adjust any
material claim or litigation; make any capital expenditure involving in any
individual case more than $5,000; incur any indebtedness for borrowed money or
issue any debt securities; declare or pay any dividend or other distribution on
its capital stock; materially decrease its working capital; increase the
salaries or other compensation payable to any employee, or take any action, or
fail to take any reasonable action within its control, as a result of which any
of the changes or events listed in Section 3.22 would be likely to occur, and
(b) the Company shall maintain and service the Assets consistent with past
practice and preserve intact the current business organization of the Company.
5.2 Access to Information. From the date of this Agreement to the
closing Date, the Shareholders shall cause the Company to give to Buyer and its
officers, employees, counsel, accountants and other representatives access to
and the right to inspect, during normal business hours, all of the assets,
records, contracts and other documents relating to the Company as the other
party may reasonably request. Buyer shall not use such information for purposes
other than in connection with the transactions contemplated by this Agreement
and shall otherwise hold such information in confidence until such time as such
information otherwise becomes publicly available and will sign such standard and
customary non-disclosure agreements as are reasonably requested by the Company.
5.3 No Solicitation From and after the date hereof until the earlier of
the Termination Date or the date of termination of this Agreement pursuant to
Section 11, without the prior written consent of Buyer, each Shareholder and the
Company will not, and will not authorize or permit any Shareholder
Representative to, directly or indirectly, solicit, initiate or encourage
(including by way of furnishing information) or take any other action to
facilitate knowingly any inquiries or the making of any proposal that
constitutes or may reasonably be expected to lead to an Acquisition Proposal
from any Person, or engage in any discussion or negotiations relating thereto or
accept any Acquisition Proposal. The Company or any Shareholder that receives
any such inquiries, offers or proposals shall (a) notify Buyer orally and in
writing of any such inquiries, offers or proposals (including the terms and
conditions of any such proposal and the identity of the person making it),
within 48 hours of the receipt thereof, (b) keep Buyer informed of the status
and details of any such inquiry, offer or proposal, and (c) give Buyer five
days' advance notice of any agreement to be entered into with, or any
information to be supplied to, any Person making such inquiry, offer or
proposal. As used herein, "Acquisition Proposal" means a proposal or offer
(other than pursuant to this Agreement) for a tender or exchange offer, merger,
consolidation or other business combination involving any or any proposal to
acquire in any manner a substantial equity interest in, or all or substantially
all of the Assets. Notwithstanding the foregoing, the Shareholders will remain
free to participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
26
other manner, any effort or attempt by any Person to do or seek any of the
foregoing to the extent their fiduciary duties may require.
5.4 Existing Employment Agreements and Other Liabilities Each
Shareholder, effective as of the Closing, hereby consents to the cancellation of
any Contract that the Shareholders have with the Company, including any
employment agreement, and also releases and discharges Shareholder and any of
its Affiliates from any and all Liabilities other than those arising out of this
Agreement or any other Transaction Documents and those related to wages due to
the Shareholders in the ordinary course.
5.5 Expenses. Each party to this Agreement shall pay all of its legal,
accounting and other expenses in excess incurred in connection with the
Transactions.
5.6 Confidentiality.
(a) Each Shareholder recognizes and acknowledges that by reason of its
or his involvement with or employment in the Business, it or he has or may have
had access to Trade Secrets relating to the Business. Each Shareholder
acknowledges that such Trade Secrets are a valuable and unique asset and
covenants that it or he will not disclose any such Trade Secrets to any Person
for any reason whatsoever, unless such information (a) is in the public domain
through no wrongful act of such Shareholder, (b) has been rightfully received
from a third party without restriction and without breach of this Agreement or
(c) except as may be required by law.
(b) The terms of this Section 5.6 shall apply to each Shareholder and
to any other Person controlled by any Shareholder and any of their respective
Affiliates that it or he controls to the same extent as if they were parties
hereto, and each such party shall take whatever actions may be necessary to
cause any such party or Affiliate to adhere to the terms of this Section 5.6.
(c) In the event of any breach or threatened breach by any party of any
provision of Section 5.6, Buyer shall be entitled to injunctive or other
equitable relief, restraining such party from using or disclosing any Trade
Secrets in whole or in part, or from engaging in conduct that would constitute a
breach of the obligations of a party under Section 5.6. Such relief shall be in
addition to and not in lieu of any other remedies that may be available,
including an action for the recovery of Damages, all of which may be sought only
in accordance with the arbitration provisions of this Agreement.
5.7 Transfer of Assets and Business. Shareholders shall, and shall
cause the Company to, take such reasonable steps as may be necessary or
27
appropriate, in the judgment of Buyer, so that Buyer shall be placed in actual
possession and control of all of the Assets and the Business.
5.8 Accounts Receivable.
(a) After the Closing, Buyer shall cause the Company to use reasonable
and diligent efforts to collect the accounts receivables of the Company
outstanding as of the Balance Sheet Date (the "Closing Accounts Receivables"),
without any obligation to compromise the gross amount of any such account
receivable, commence legal proceedings or retain collection agencies.
5.9 Indemnification of Xxxxxxxx Xxxxxxx.
Buyer shall indemnify Xxxxxxxx Xxxxxxx against any and all damages,
costs and expenses incurred by Xxxxxxxx Xxxxxxx as a result of any personal
guarantees executed in favor of any obligation of the Company related to its
business operations.
6. Covenants of Buyer.
6.1 Fulfillment of Closing Conditions. At and prior to the Closing,
Buyer shall use commercially reasonable efforts to fulfill the conditions
specified in Sections 8 and 9 to the extent that the fulfillment of such
conditions is within its control. In connection with the foregoing, each such
party will (a) refrain from any actions that would cause any of its
representations and warranties to be inaccurate in any material respect as of
the Closing, (b) execute and deliver the applicable agreements and other
documents referred to in Sections 8 and 9, (c) comply in all material respects
with all applicable Laws in connection with its execution, delivery and
performance of this Agreement and the Transactions, (d) use commercially
reasonable efforts to obtain in a timely manner all necessary waivers, consents
and approvals required under any Laws, Contracts or otherwise, including any
Buyer Required Consents, and (e) use commercially reasonable efforts to take, or
cause to be taken, all other actions and to do, or cause to be done, all other
things reasonably necessary, proper or advisable to consummate and make
effective as promptly as practicable the Transactions.
7. Mutual Covenants
7.1 Fulfillment of Closing Conditions. At and prior to the Closing,
each party shall use commercially reasonable efforts to fulfill, and to cause
each other to fulfill, as soon as practicable after the conditions specified in
Sections 8 and 9 to the extent that the fulfillment of such conditions is within
its or his control. In connection with the foregoing, each party will (a)
refrain from any actions that would cause any of its representations and
warranties to be inaccurate as of the Closing, and take any reasonable actions
within its control that would be necessary to prevent its representations and
warranties from being inaccurate as of the Closing, (b) execute and deliver the
applicable agreements and other documents referred to in Sections 8 and 9, (c)
28
comply in all material respects with all applicable Laws in connection with its
execution, delivery and performance of this Agreement and the Transactions, (d)
use commercially reasonable efforts to obtain in a timely manner all necessary
waivers, consents and approvals required under any Laws, Contracts or otherwise,
including any Shareholder Required Consents in the case of Shareholders and any
Buyer Required Consents in the case of Buyer, (e) use commercially reasonable
efforts to take, or cause to be taken, all other actions and to do, or cause to
be done, all other things reasonably necessary, proper or advisable to
consummate and make effective as promptly as practicable the Transactions.
7.2 Disclosure of Certain Matters Each Shareholder on the one hand, and
Buyer, on the other hand, shall give Buyer and Shareholders, respectively,
prompt notice of any event or development that occurs that (a) had it existed or
been known on the date hereof would have been required to be disclosed by such
party under this Agreement, (b) would cause any of the representations and
warranties of such party contained herein to be inaccurate or otherwise
misleading, except as contemplated by the terms hereof, or (c) gives any such
party any reason to believe that any of the conditions set forth in Sections 8
and 9 will not be satisfied prior to the Termination Date (defined below).
7.3 Intentionally omitted.
7.4 Public Announcements. Shareholders and Buyer shall consult with
each other before issuing any press release or making any public statement with
respect to this Agreement and the Transactions and, except as may be required by
applicable law, Federal, State or Local Securities, none of such Parties nor any
other Parties shall issue any such press release or make any such public
statement without the consent of the other parties hereto.
7.5 Confidentiality. If the Transactions are not consummated, each
party shall treat all information obtained in its investigation of another party
or any Affiliate thereof, and not otherwise known to them or already in the
public domain, as confidential and shall not use or otherwise disclose such
information to any third party and shall return to such other party or Affiliate
all copies made by it or its representatives of Confidential Information
provided by such other party or Affiliate.
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8. Conditions Precedent to Obligations of Shareholders.
All obligations of Shareholders to consummate the Transactions are
subject to the satisfaction prior thereto of each of the following conditions:
8.1. Representations and Warranties. The representations and warranties
of Buyer contained in this Agreement shall be true and correct on the date
hereof and (except to the extent such representations and warranties speak as of
an earlier date) shall also be true and correct on and as of the Closing Date
with the same force and effect as if made on and as of the Closing Date.
8.2. Agreements, Conditions and Covenants. Buyer shall have performed
or complied with all agreements, conditions and covenants required by this
Agreement to be performed or complied with by it on or before the Closing Date.
8.3. Certificates. Shareholders shall have received a certificate of an
executive officer of Buyer to the effect set forth in Sections 8.1 and 8.2 with
respect to Buyer.
8.4. Legality. No Law or Court Order shall have been enacted, entered,
promulgated or enforced by any court or governmental authority that is in effect
and has the effect of making the purchase and sale of the Assets illegal or
otherwise prohibiting the consummation of such purchase and sale.
8.5. Buyer Required Consents. Buyer shall have obtained Buyer Required
Consents without any modification that Shareholders reasonably deem
unacceptable.
8.6. Employment Agreement. Contemporaneously with the Closing, Buyer
shall execute and deliver an employment agreement with Xxxx Xxxxxxx, which
agreement shall become effective on the Closing Date.
8.7. Legal Fees. The legal fees and expenses of Xxxxxxx, Phleger &
Xxxxxxxx LLP set forth in Schedule 3.12 shall have been paid.
9. Conditions Precedent to Obligations of Buyer.
All obligations of Buyer to consummate the Transactions are subject to
the satisfaction (or waiver) prior thereto of each of the following conditions:
9.1. Representations and Warranties. The representations and warranties
of Shareholders contained in this Agreement shall be true and correct on the
date hereof and (except to the extent such representations and warranties speak
as of an earlier date) shall also be true and correct on and as of the Closing
30
Date, except for changes contemplated by this Agreement, with the same force and
effect as if made on and as of the Closing Date.
9.2. Agreements, Conditions and Covenants. Shareholders shall have
performed or complied in all material respects with all agreements, conditions
and covenants required by this Agreement to be performed or complied with by
them on or before the Closing Date.
9.3. Certificates. Buyer shall have received a certificate of an
executive officer of the Company and each Shareholder to the effect set forth in
Sections 9.1 and 9.2.
9.4. Legality. No Law or Court Order shall have been enacted, entered,
promulgated or enforced by any court or governmental authority that is in effect
and (a) has the effect of making the purchase and sale of the Assets illegal or
otherwise prohibiting the consummation of such purchase and sale or (b) has a
reasonable likelihood of causing a Material Adverse Effect.
9.5. Exhibits. The parties hereto expressly agree that, in the event
that all of the exhibits to this Agreement have not been finalized at the time
that this Agreement is executed, Buyer and Shareholders shall use their best,
respective efforts to negotiate in good faith the terms and conditions of such
exhibits and shall endeavor, in good faith to provide any such exhibits as soon
as possible.
10 Indemnification.
10.1 By Shareholders. From and after the Closing Date, the
Shareholders, jointly and severally, shall indemnify and hold harmless Buyer and
its successors and assigns, and their respective officers, directors, employees,
shareholders, agents, Affiliates and any Person who controls any of such Persons
within the meaning of the Securities Act or the Exchange Act (each, a "Buyer
Indemnified Party") from and against any liabilities, claims, demands,
judgments, losses, costs, damages or expenses whatsoever (including reasonable
attorneys', consultants' and other professional fees and disbursements of every
kind, nature and description incurred by such Buyer Indemnified Party in
connection therewith including consequential damages) (collectively, "Damages")
that such Buyer Indemnified Party may sustain, suffer or incur and that result
from, arise out of or relate to (a) any breach of any of the respective
representations, warranties, covenants or agreements of any Shareholder
contained in this Agreement or in the Closing Certificates, (b) any
Environmental Condition existing on or before the Closing, and (c) any Liability
of any Shareholder involving Taxes due and payable by, or imposed on the Company
with respect to any Shareholder for any and all taxable periods ending on or
prior to the Closing Date (whether or not such Taxes have been due and payable).
31
Shareholder Indemnified Parties' obligations under this Section 10 are joint and
several.
10.2. By Buyer. From and after the Closing Date, Buyer shall indemnify
and hold harmless Shareholders and their respective successors and assigns, and
(if any) their respective officers, directors, employees, shareholders, agents,
Affiliates and any Person who controls any of such Persons within the meaning of
the Securities Act or the Exchange Act (each, a "Shareholder Indemnified Party")
from and against any Damages that such Shareholder Indemnified Party may
sustain, suffer or incur and that result from, arise out of or relate to any
breach of any of the respective representations, warranties, covenants or
agreements of Buyer contained in this Agreement. Buyer shall not be liable under
this Agreement for an aggregate amount in excess of the Purchase Price.
10.3. Procedure for Claims.
(a) Any Person that desires to seek indemnification under any part of
this Section 10 (each, an "Indemnified Party") shall give notice (a "Claim
Notice") to each party responsible or alleged to be responsible for
indemnification hereunder (an "Indemnitor") prior to any applicable Expiration
Date specified below. Such notice shall explain with specificity the nature of
the claim, the specific section of this Agreement to which the claim relates and
the parties known to be invoked, and shall specify the amount thereof. If the
matter to which a claim relates shall not have been resolved as of the date of
the Claim Notice, the Indemnified Party shall estimate the amount of the claim
in the Claim Notice, but also specify therein that the claim has not yet been
liquidated (an "Unliquidated Claim"). If an Indemnified Party gives a Claim
Notice for an Unliquidated Claim, the Indemnified Party shall also give a second
Claim Notice (the "Liquidated Claim Notice") within 60 days after the matter
giving rise to the claim becomes finally resolved, and the Second Claim Notice
shall specify the amount of the claim. Each Indemnitor to which a Claim Notice
is given shall respond to any Indemnified Party that has given a Claim Notice (a
"Claim Response") within 60 days (the "Response Period") after the later of (i)
the date that the Claim Notice is given or (ii) if a Claim Notice is first given
with respect to an Unliquidated Claim, the date on which the Liquidated Claim
Notice is given. Any Claim Notice or Claim Response shall be given in accordance
with the notice requirements hereunder, and any Claim Response shall specify
whether or not the Indemnitor giving the Claim Response disputes the claim
described in the Claim Notice. If any Indemnitor fails to give a Claim Response
within the Response Period, such Indemnitor shall be deemed not to dispute the
claim described in the related Claim Notice. If any Indemnitor elects not to
32
dispute a claim described in a Claim Notice, whether by failing to give a timely
Claim Response or otherwise, then the amount of such claim shall be conclusively
deemed to be an obligation of such Indemnitor. For the purposes of the
immediately preceding sentence, an Indemnitor's failure to give a timely Claim
Response shall not be deemed an election not to dispute a Claim Notice unless
the Indemnified Party shall have given a second Claim Notice after expiration of
the Response Period and another 20 days after the date on which the Indemnified
Party shall have given such second Claim Notice shall have expired without the
Indemnitor's having given a Response Notice within such period.
(b) If any Indemnitor shall be obligated to indemnify an Indemnified
Party hereunder, such Indemnitor shall pay to such Indemnified Party within 30
days after the last day of the Claim Response Period the amount to which such
Indemnified Party shall be entitled. If there shall be a dispute as to the
amount or manner of indemnification under this Section 10, the Indemnified Party
may pursue whatever legal remedies may be available for recovery of the Damages
claimed from any Indemnitor in accordance with the arbitration provisions of
this Agreement. If any Indemnitor fails to pay all or part of any
indemnification obligation when due, then such Indemnitor Party shall also be
obligated to pay to the applicable Indemnified Party interest on the unpaid
amount for each day during which the obligation remains unpaid at an annual rate
equal to the Prime Rate, and the Prime Rate in effect on the first business day
of each calendar quarter shall apply to the amount of the unpaid obligation
during such calendar quarter.
10.5 Claims Period. Any claim for indemnification under this Section 10
shall be made by giving a Claim Notice under Section 10.4 on or before the first
anniversary of the Closing Date (the "Expiration Date"). So long as an
Indemnified Party gives a Claim Notice for an Unliquidated Claim on or before
the Expiration Date, such Indemnified Party shall be entitled to pursue its
rights to indemnification regardless of the date on which such Indemnified Party
gives the related Liquidated Claim Notice.
10.6 Third Party Claims.
(a) If any third party shall notify any Indemnified Party with respect
to any actions, suits or other administrative or judicial proceedings (each, an
"Action") which may give rise to a claim for indemnification against any
Indemnifying Party under this Section 10, then the Indemnified Party shall
promptly (and in any event within five Business Days' after receiving notice of
the Action) notify each Indemnifying Party thereof in writing.
(b) Any Indemnifying Party will have the right to assume and thereafter
conduct the defense of the Action with counsel of his or its choice reasonably
satisfactory to the Indemnified Party; provided, however, that the Indemnifying
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the Action without the prior written consent of the Indemnified
Party (which consent shall not be unreasonably withheld) unless the judgment or
proposed settlement involves only the payment of money damages and does no
impose an injunction or other equitable relief upon the Indemnified Party.
33
(c) Unless and until an Indemnifying Party assumes the defense of the
Action, the Indemnified Party may defend against the Action in any manner he or
it reasonably may deem appropriate.
(d) In no event will the Indemnified Party consent to the entry of any
judgment or enter into any settlement with respect to any Action without the
prior written consent of each of the Indemnifying Parties (which consent shall
not be unreasonably withheld).
11. Termination.
11.1 Grounds for Termination. This Agreement may be terminated at any
time before the Closing Date:
(a) By mutual written consent of Shareholders and Buyer;
(b) By Shareholders or Buyer if the Closing shall not have been
consummated on or before the Termination Date; provided, however, that the right
to terminate this Agreement under this Section 10.1(b) shall not be available to
any party whose failure to fulfill any obligation under this Agreement has been
the cause of, or resulted in, the failure of the Closing to occur on or before
the Termination Date;
(c) By Shareholders or Buyer if a court of competent jurisdiction or
govern mental, regulatory or administrative agency or commission shall have
issued a Court Order (which Court Order the parties shall use commercially
reasonable efforts to lift) that permanently restrains, enjoins or otherwise
prohibits the Transactions, and such Court Order shall have become final and
nonappealable;
(d) By Buyer, if any Shareholder shall have breached, or failed to
comply with, any of its or his obligations under this Agreement or any
representation or warranty made by any Shareholder shall have been incorrect
when made, and such breach, failure or misrepresentation is not cured within 20
days after notice thereof; and
(e) By any Shareholder, if Buyer shall have breached, or failed to
comply with any of its obligations under this Agreement or any representation or
warranty made by it shall have been incorrect when made, and such breach,
failure or misrepresentation is not cured within 20 days after notice thereof,
and in either case, any such breaches, failures or misrepresentations,
individually or in the aggregate, results or would reasonably be expected to
affect materially and adversely the benefits to be received by the Shareholders
hereunder.
34
11.2 Effect of Termination. If this Agreement is terminated pursuant to
Section 11.1, the agreements contained in Section 7.5 shall survive the
termination hereof and any party may pursue any legal or equitable remedies that
may be available if such termination is based on a breach of another party.
12. General Matters.
12.1 Arbitration.
(a) All disputes concerning this Agreement shall be decided by
arbitration in accordance with the commercial rules and regulations of the
American Arbitration Association (except to the extent such rules and
regulations are inconsistent with the provisions of this Section).
(b) If the parties agree on one arbitrator, the arbitration shall be
conducted by such arbitrator. If the parties do not so agree, the parties shall
each select one independent, qualified arbitrator. For this purpose, all parties
whose interest in the matter being arbitrated are substantially identical shall
be treated as a single party entitled to select on arbitrator. If an even number
of arbitrators is selected, such arbitrators shall select an additional
arbitrator.
(c) Each party reserves the right to object to any individual
arbitrator who is employed by or affiliated with an organization that competes
with such party.
(d) The parties shall have the right to conduct discovery as specified
for up to three months. Such discovery shall include the right to take
depositions and subpoena witnesses.
(e) At the request of any party, arbitration proceedings shall be
conducted in the utmost secrecy. In such case, all documents, testimony, and
records shall be received, heard and maintained by the arbitrators in secrecy
under seal, available for the inspection only of the parties and their
respective attorneys and experts who have agreed in advance in writing to
receive and maintain all such information in confidence until such information
becomes generally known.
(f) The arbitrators shall act by majority vote. The arbitrators shall
issue a written opinion of their findings of fact and their conclusions of law
at the request and at the expense of either party.
(g) The arbitrators shall be able to decree any and all relief of an
equitable nature, including without limitation such relief as a temporary
restraining order and a preliminary or permanent injunction, and shall also be
able to award damages, with or without an accounting, and costs, except that the
prevailing party shall be entitled to its reasonable attorneys fees. The decree
or judgment of an award rendered by the arbitrators shall be binding upon the
parties and may be entered in any court having jurisdiction thereof.
35
(h) Reasonable notice of the time and place of arbitration shall be
given to all persons as required by law. Such persons and their authorized
representatives shall have the right to attend or participate in all the
arbitration hearings in such manner as the law requires.
12.2 Contents of Agreement. This Agreement, together with the other
Transaction Documents, sets forth the entire understanding of the parties with
respect to the Transactions and supersedes all prior agreements or
understandings among the parties regarding those matters.
12.3 Amendment, Parties in Interest, Assignment, Etc. This Agreement
may be amended, modified or supplemented only by a written instrument duly
executed by each of the parties hereto. If any provision of this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect any other
provision hereof, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective heirs, legal representatives, successors and permitted assigns
of the parties. Nothing in this Agreement shall confer any rights upon any
Person other than Shareholders and Buyer and their respective heirs, legal
representatives, successors and permitted assigns. No party hereto shall assign
this Agreement or any right, benefit or obligation hereunder. Any term or
provision of this Agreement may be waived at any time by the party entitled to
the benefit thereof by a written instrument duly executed by such party.
12.4 Further Assurances. At and after the Closing, Shareholders and
Buyer shall execute and deliver any and all documents and take any and all other
actions that may be deemed reasonably necessary by their respective counsel to
complete the Transactions.
12.5 Interpretation. Unless the context of this Agreement clearly
requires otherwise, (a) references to the plural include the singular, the
singular the plural, the part the whole, (b) references to any gender include
all genders, (c) "or" has the inclusive meaning frequently identified with the
phrase "and/or," (d) "including" has the inclusive meaning frequently identified
with the phrase "but not limited to" and (e) references to "hereunder" or
"herein" relate to this Agreement. The section and other headings contained in
this Agreement are for reference purposes only and shall not control or affect
the construction of this Agreement or the interpretation thereof in any respect.
Section, subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified. Each accounting term used herein that is not
36
specifically defined herein shall have the meaning given to it under GAAP. Any
reference to a party's being satisfied with any particular item or to a party's
determination of a particular item presumes that such standard will not be
achieved unless such party shall be satisfied or shall have made such
determination in its sole or complete discretion.
12.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be binding as of the date first written above,
and all of which shall constitute one and the same instrument. Each such copy
shall be deemed an original.
12.7 Schedules. Any items listed or described on SCHEDULES shall be
listed or described under a caption that identifies the Sections of this
Agreement to which the item relates.
13. Remedies.
The indemnification rights under Section 10 are independent of and in
addition to such rights and remedies as the parties may have at law or in equity
or otherwise (subject to Section 12 hereof) for any misrepresentation, breach of
warranty or failure to fulfill any agreement or covenant hereunder on the part
of any party hereto, including the right to seek specific performance,
rescission or restitution, none of which rights or remedies shall be affected or
diminished by Section 10. Buyer acknowledges that Section 10 shall be the
exclusive remedy of the Buyer for any breach of the representations and
warranties in Section 3 above with respect to such individuals, except for any
willful misrepresentation, willful breach of warranty or willful failure to
fulfill any agreement or covenant.
14. Notices.
All notices that are required or permitted hereunder shall be in
writing and shall be sufficient if personally delivered or sent by mail,
facsimile message or Federal Express or other delivery service. Any notices
shall be deemed given upon the earlier of the date when received at, or the
third day after the date when sent by registered or certified mail or the day
after the date when sent by Federal Express to, the address or fax number set
forth below, unless such address or fax number is changed by notice to the other
Party hereto:
If to Shareholders:
America's PEO Holdings, Inc.
000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Fax:
37
with a required copy to:
XxXxxxxxx, Will & Every
000 00xx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to Buyer:
Certified Services, Inc.
00000 Xxxxxxxxxx Xxxxxx, #0
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxx
FAX: (000) 000-0000
with a required copy to:
Levy, Boonshoft & Xxxxxxxx, P.C.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx
FAX: 000-000-0000
15. Governing Law.
This Agreement shall be construed and interpreted in accordance with
the laws of the State of New York without regard to its provisions concerning
conflict of laws.
16. Additional Documents.
The parties hereto expressly covenant and agree that if any further
documents are required to finalize and consummate the terms of this transaction,
or if any documents require amendment, which amendment would not change any of
the terms of this Share Purchase Agreement or any of the obligations of the
parties, then the parties shall execute such documents upon written request by
any other party or its representative.
[The rest of this page left intentionally blank]
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IN WITNESS WHEREOF, this Share Purchase Agreement has been executed by
the parties hereto as of the day and year first written above.
CERTIFIED SERVICES, INC.
BY:_______________________
XXXXXXX XXXXXX
President
AMERICA'S PEO HOLDINGS, INC.
BY:________________________
XXXXXXXX XXXXXXX
President
AMERICA'S PEO HOLDINGS, INC.
BY:________________________
XXXXXX XXXXXXXXXX
Secretary
---------------------------
XXXXXXXX XXXXXXX
---------------------------
XXXXXX XXXXXXXXXX
---------------------------
XXXX XXXXXX
39
