EXHIBIT 10(J)
ACQUISITION AGREEMENT
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THIS ACQUISITION AGREEMENT (hereafter referred to as the "Agreement") is made
and entered into on September 1, 2003, by and between IMAGING TECHNOLOGIES
CORPORATION (hereafter referred to as "ITEC"), a Delaware corporation, with
principle executive offices located at 00000 Xxx xxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, and XXXXXXX STAFFING, INC. (hereafter referred to as " JACKSON
STAFFING") a Michigan corporation, with principal offices located at 000 X.
Xxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000.
RECITALS
WHEREAS, ITEC is a provider of Professional Employer Organization Services
which include but are not limited to, human resource consultants, payroll
processing services, human resource management services, safety services,
workers compensation and other employment related benefits products
(collectively, "PEO Services"); and
WHEREAS, XXXXXXX STAFFING is a provider of Temporary Staffing Services which
primarily provides clients with the temporary services of one (1) or more
individuals under contract with the client characterized by a series of
limited-term assignments; and
WHEREAS, ITEC wishes to purchase all of the issued and outstanding shares of all
class of capital stock of XXXXXXX STAFFING and XXXXXXX STAFFING desires to sell
to ITEC such stock;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and in reliance upon the representations and warranties
hereinafter set forth, the parties agree as follows:
1. CONSIDERATION
2.
1.1 At the Closing, XXXXXXX STAFFING will issue to ITEC all of the issued
and outstanding shares of all class of capital stock of XXXXXXX STAFFING.
1.2 At the Closing, ITEC shall pay to XXXXXXX STAFFING the purchase price of
$1.00 as good and valuable consideration for all of the issued and outstanding
shares of all class of capital stock of XXXXXXX STAFFING. The sum of $1.00
shall be paid in cash on closing.
1.3 At the Closing, XXXXXXX STAFFING shall deliver to ITEC stock
certificates for the purchased shares duly endorsed, with documentary stamps
affixed, free from all encumbrances, rights, and interests of others.
2. CLOSING
2.1 The Closing shall occur at the offices of ITEC no later than September
1, 2003.
2.2 ITEC shall deliver the following at the Closing:
2.2.1 an Officer's Certificate as to (i) the accuracy at Closing of all of
ITEC's representations and warranties as if made at and as of the Closing Date,
(ii) the fulfillment of all of ITEC's agreements and covenants to be performed
at or before the Closing Date, and (iii) the satisfaction of all Closing
conditions to be satisfied by ITEC; and
2.2.2 copies of resolutions adopted by ITEC's Board of Directors approving
the execution, delivery and performance of this Agreement and approving all of
the transactions contemplated by this Agreement; and
2.2.3 such other instruments or documents as may be necessary or appropriate
to carry out the transactions contemplated hereby.
2.3 XXXXXXX STAFFING shall deliver the following at the Closing:
2.3.1 an Officer's Certificate as to (i) the accuracy at Closing of all of
XXXXXXX STAFFING's representations and warranties as if made at and as of the
Closing Date, (ii) the fulfillment of all of XXXXXXX STAFFING's agreements and
covenants to be performed at or before the Closing Date, and (iii) the
satisfaction of all Closing conditions to be satisfied by XXXXXXX STAFFING;
2.3.2 copies of resolutions adopted by XXXXXXX STAFFING's Board of Directors
approving the execution, delivery and performance of this Agreement and
approving all of the transactions contemplated by this Agreement;
2.3.3 such other endorsements, instruments or documents as may be necessary
or appropriate to carry out the transactions contemplated hereby or are
reasonably requested by ITEC to demonstrate satisfaction of the XXXXXXX STAFFING
Pre-Closing Actions.
3. REPRESENTATIONS AND WARRANTIES OF XXXXXXX STAFFING
XXXXXXX STAFFING represents and warrants to ITEC as of the execution of this
Agreement and as of the date of the Closing as follows:
3.1 XXXXXXX STAFFING has all of the requisite right, power and authority,
without the consent of any other person or entity, to execute and deliver this
Agreement and the agreements to be executed and delivered hereby and to carry
out the transactions contemplated hereby and thereby. All actions required to be
taken by XXXXXXX STAFFING to authorize the execution, delivery and performance
of this Agreement and all agreements and transactions contemplated hereby have
been duly and properly taken, with the exception of those actions specifically
identified in Section 6 hereof ("Conditions Precedent to Obligations of ITEC")
to be taken by XXXXXXX STAFFING subsequent to the execution of this Agreement
but prior to the Closing.
3.2 This Agreement and the other agreements and other documents to be
delivered at the Closing by XXXXXXX STAFFING have been duly executed and
delivered by XXXXXXX STAFFING and constitute valid and binding obligations of
XXXXXXX STAFFING enforceable in accordance with their respective terms. The
execution and delivery of this Agreement and the other agreements contemplated
hereby and the consummation of the transactions contemplated hereby and thereby
will not (immediately, or upon notice, with the passage of time, or both) result
in the creation of any lien, charge or encumbrance of any kind or the
termination or acceleration of any indebtedness or other obligation of XXXXXXX
STAFFING, and are not prohibited by, do not and will not violate or conflict
with any provision of, and do not and will not constitute a default under or a
breach of (i) the articles of formation or operating agreement of XXXXXXX
STAFFING, (ii) any contract, agreement or other instrument to which XXXXXXX
STAFFING is a party or by which XXXXXXX STAFFING is bound, (iii) any order,
decree or judgment of any court or governmental agency binding upon XXXXXXX
STAFFING, or (iv) any law, rule or regulation applicable to JACKSON STAFFING.
3.3.
3.3.1 XXXXXXX STAFFING is a Michigan corporation duly organized, validly
existing and in good standing under the laws of Michigan and has full power and
authority and all requisite rights, licenses and permits to carry on its
business as it is presently conducted by XXXXXXX STAFFING. XXXXXXX STAFFING
maintains its primary office in the State of Michigan.
3.3.2 Except as set forth on Schedule 3.3 all of the XXXXXXX STAFFING
capital stock has been duly and validly authorized and granted or sold and there
are no contributions, capital calls or other amounts outstanding with respect to
any JACKSON STAFFING interests. The XXXXXXX STAFFING capital stock was not
issued in violation of any preemptive or other right of any person. There are no
outstanding options, rights, warrants, conversion rights or other agreements or
commitments to which XXXXXXX STAFFING is a party or binding upon XXXXXXX
STAFFING for the sale or transfer by JACKSON STAFFING of any interest in XXXXXXX
STAFFING except as described on Schedule 3.3. IT IS EXPRESSLY AGREED TO AND
WARRANTED BY XXXXXXX STAFFING THAT THE PURCHASE BY ITEC SHALL REPRESENT
OWNERSHIP BY ITEC OF ALL OF THE CVAPITAL STOCK OF XXXXXXX STAFFING.
3.3.3 No approval, authorization, registration, consent, order or other
action of or filing with any person, including any court, administrative agency
or other governmental authority, is required for (i) the execution and delivery
of this Agreement or the agreements contemplated hereby, or (ii) the
consummation of the transactions contemplated hereby and thereby.
3.3.4 XXXXXXX STAFFING currently maintain workers compensation policy covering
the State of Michigan.
3.5
3.5.1 The unaudited financial statements for XXXXXXX STAFFING at and as of
September 1, 2003 ("XXXXXXX STAFFING Financial Statements") (i) are attached
hereto as Schedule 3.5; and (ii) are accurate and complete.
3.5.2 XXXXXXX STAFFING is not subject to any liability or obligation
(whether absolute, accrued, contingent or otherwise and whether matured or
unmatured) other than liabilities and obligations described in the XXXXXXX
STAFFING Financial Statements and/or on Schedule 3.5.
3.6 The books of account and other records (financial and otherwise) of
XXXXXXX STAFFING are complete and correct and are maintained in accordance with
good business practices and generally accepted accounting practices.
3.7 Since its inception, XXXXXXX STAFFING has operated its business only in
the ordinary course, and there has not been any of the following in connection
with XXXXXXX STAFFING except as disclosed in the XXXXXXX STAFFING Financial
Statements, Schedule 3.5 or as set forth below:
3.7.1 any material adverse change in the financial condition, assets,
liabilities, personnel, prospects or business affairs of XXXXXXX STAFFING in its
relationships with suppliers, vendors, customers, representatives, employees or
others, nor has there been the occurrence of any event or condition which could
reasonably be expected to have such an effect;
3.7.2 any declaration or payment of any dividend or other distribution;
3.7.3 any forgiveness, cancellation, write-off or write-down of debts or
claims, or waiver of any rights related to XXXXXXX STAFFING other than in the
ordinary course of negotiating settlements of creditor claims and settlement of
litigation filed against XXXXXXX STAFFING, as disclosed on Schedule 3.7;
3.7.4 any increase or decrease in the compensation, benefits or method or
rate of reimbursement paid, payable or to become payable by XXXXXXX STAFFING to
any employee, independent contractor or other person who renders services in
connection with XXXXXXX STAFFING or its business, or any payments of
compensation other than salary to any of such employees;
3.7.5 any incurrence of debt;
3.7.6 any entry into any material agreement, commitment or transaction in
excess of ten thousand dollars ($10,000) or any capital expenditure in excess of
five thousand dollars ($5,000);
3.7.7 any incurrence of any security interest, lien, charge, encumbrance or
claim on, or any damage or loss to, any of the assets of XXXXXXX STAFFING;
3.7.8 any change in the method of operation or practices of XXXXXXX
STAFFING, including any change in the accounting, billing or invoicing
procedures of XXXXXXX STAFFING;
3.7.9 any sale, transfer or disposal by or for XXXXXXX STAFFING or purchase
by or for XXXXXXX STAFFING of any properties or assets, except in the ordinary
course of negotiating settlements of creditor claims and settlement of
litigation as disclosed on Schedule 3.7; or
3.7.10 any agreement, commitment or understanding by XXXXXXX STAFFING to do
any of the foregoing.
3.8 XXXXXXX STAFFING owns or otherwise controls the contracts, assets,
leases, accounts receivable, trademarks, patents and other tangible and
intangible property which is carried on its Financial Statements, and XXXXXXX
STAFFING has good and marketable title to such assets, and such assets are not
and will not be subject to any pledge, option, escrow, hypothecation, lien,
security interest, financing statement, lease, license, easement, right of way,
encumbrance or other restriction of any kind except as disclosed on Schedule
3.8.
3.9 XXXXXXX STAFFING does not own any real property.
3.10 Except as described on Schedule 3.10, XXXXXXX STAFFING does not lease
any personal property. Schedule 3.10 sets forth an accurate, correct and
complete list of all office furnishings and other personal property leased by
XXXXXXX STAFFING.
3.11 Schedule 3.11 contains a list of all information in the nature of trade
secrets, know-how or proprietary information, including but not limited to,
software, copyrighted and copyrightable material, electronic data processing
systems, program specifications and technical information relating to or used by
XXXXXXX STAFFING (the "Proprietary Information"). The Proprietary Information
does not violate or infringe upon any trade secret rights, patents, trademarks
or copyrights of any other person. Except as set forth on Schedule 3.11, the
Proprietary Information is owned exclusively by XXXXXXX STAFFING and no other
person or entity has any claim thereto or rights therein.
3.12 Except as set forth in Schedule 3.12, XXXXXXX STAFFING has paid all
taxes required to be paid and has filed all returns, declarations and reports or
information returns and statements required to be filed.
3.13 Except as set forth in Schedule 3.13, XXXXXXX STAFFING is not engaged
in, or a party to, or to the best of XXXXXXX STAFFING's knowledge, threatened
with, any suit, action, proceeding, or investigation or legal, administrative,
arbitration or other method of settling disputes, and no officer of XXXXXXX
STAFFING knows, anticipates or has notice of any basis for any such action.
XXXXXXX STAFFING has not received notice of any investigation, suit or
proceeding threatened or contemplated by any foreign, federal, state or local
government or regulatory authority including, without limitation, those
involving XXXXXXX STAFFING's employment notices or policies or compliance with
environmental regulations.
3.14 XXXXXXX STAFFING has not retained any broker or finder or incurred any
liability or obligation for any brokerage fees, commissions or finder's fees
with respect to this Agreement or the transactions contemplated hereby.
3.15 XXXXXXX STAFFING has no accounts or notes receivable with the exception
of those described in Schedule 3.15, for which no defenses to payment have been
asserted, nor does XXXXXXX STAFFING have reason to believe that such receivables
would not be paid (with the exception of the obligor's inability to pay for
financial reasons).
3.16 Neither this Agreement nor any attachment, schedule, certificate or
other statement delivered pursuant to this Agreement in or in connection with
the transactions contemplated hereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material fact
necessary in order to make the statements and information contained herein or
therein, in light of the circumstances in which they were made, not misleading.
Each schedule delivered pursuant to this Agreement is accurate and complete. To
XXXXXXX STAFFING's knowledge, there is no information necessary to enable a
prospective purchaser of XXXXXXX STAFFING or its common stock to make an
informed decision with respect to the purchase of XXXXXXX STAFFING or its common
stock which has not been expressly disclosed to ITEC in this Agreement or in
writing in connection with ITEC's due diligence process.
2. REPRESENTATIONS AND WARRANTIES OF ITEC
ITEC hereby represents and warrants to XXXXXXX STAFFING as of the date hereof as
follows:
4.1 ITEC has all requisite right, power and authority, without the consent
of any other person or entity, to execute and deliver this Agreement and the
agreements to be executed and delivered at Closing and to carry out the
transactions contemplate hereby and thereby. All actions required to be taken by
ITEC to authorize the execution, delivery and performance of this Agreement and
all agreements and transactions contemplated hereby have been duly and properly
taken.
4.2 This Agreement has been, and the agreements and other documents to be
delivered at Closing by ITEC and will be, duly executed and delivered by ITEC
and constitute valid and binding obligations of ITEC, enforceable in accordance
with their respective terms. The execution and delivery of this Agreement and
the other agreements contemplated hereby and the consummation of the
transactions contemplated hereby and thereby do not and will not violate or
conflict with any provision of, and do not and will not constitute a default
under or a breach of (i) the Certificate of Incorporation or Bylaws of ITEC,
(ii) any contract, agreement or other instrument to which ITEC is a party, (iii)
any order or judgment of any court or governmental agency, or (iv) any law,
rule, or regulation applicable to ITEC.
4.3 No approval, authorization, registration, consent, order or other action
of or filing with any person, including any court, administrative agency or
other governmental authority is required for the execution and delivery by ITEC
of this Agreement or the agreements contemplated hereby or the consummation of
the transactions contemplated hereby and thereby.
4.4 ITEC is a corporation duly organized and validly existing under the laws
of the State of Nevada, and has full corporate power and authority to carry on
the business in which it is engaged.
4.5 Except as set forth in Schedule 4.5, ITEC is not engaged in, or a party
to, or to the best of its knowledge, threatened with, any suit, action,
proceeding, or investigation or legal, administrative, arbitration or other
method of settling disputes, which (if determined adversely to ITEC) would
materially and adversely affect the ability of ITEC to perform hereunder or
under any other agreement, document or instrument required to be executed and
delivered by ITEC in connection with the consummation of the transactions
contemplated hereby, and ITEC neither knows, anticipates or has notice of any
basis for any such action.
4.6 ITEC has not retained any broker or finder or incurred any liability or
obligation for any brokerage fees, commissions or finder's fees with respect to
this Agreement or the transactions contemplated hereby.
4.7 with respect to the XXXXXXX STAFFING capital stock being acquired by
ITEC:
4.7.1 ITEC is acquiring the XXXXXXX STAFFING capital stock for its own
account, and not with a view toward the subdivision, resale, distribution, or
fractionalization thereof; ITEC has no contract, undertaking, or arrangement
with any person to sell, transfer, or otherwise dispose of the XXXXXXX STAFFING
limited Liability Interests (or any portion thereof hereby subscribed for), and
has no present intention to enter into any such contract, undertaking, agreement
or arrangement;
4.7.2 ITEC hereby acknowledges that: (i) the offering of the XXXXXXX
STAFFING capital stock was made only through direct, personal communication
between ITEC and XXXXXXX STAFFING; (ii) ITEC has had full access to material
concerning XXXXXXX STAFFING's planned business and operations, which material
was furnished or made available to ITEC by officers or representatives of
JACKSON STAFFING; (iii) XXXXXXX STAFFING has given ITEC the opportunity to ask
any questions and obtain all additional information desired in order to verify
or supplement the material so furnished; and (iv) ITEC understands and
acknowledges that a purchaser of the XXXXXXX STAFFING Shares must be prepared to
bear the economic risk of such investment for an indefinite period because of:
(A) the heightened nature of the risks associated with an investment in XXXXXXX
STAFFING, including without limitation the risk of loss of the entire amount of
their investment; and (B) illiquidity of the XXXXXXX STAFFING Shares due to the
fact that (1) the XXXXXXX STAFFING Shares have not been registered under the
Securities Act of 1933 (the "Act") or any state securities act (nor passed upon
by the SEC or any state securities commission), and (2) the XXXXXXX STAFFING
capital stock may not be registered or qualified by ITEC under federal or state
securities laws solely in reliance upon an available exemption from such
registration or qualification, and hence such Limited Liability Interests cannot
be sold unless they are subsequently so registered or qualified, or are
otherwise subject to any applicable exemption from such registration
requirements; and (3) substantial restrictions on transfer of the XXXXXXX
STAFFING capital stock, as set forth by legend on the face or reverse side of
every certificate evidencing the ownership of XXXXXXX STAFFING; and
4.7.4 ITEC has been advised to consult with an attorney regarding all legal
matters concerning the purchase and ownership of the XXXXXXX STAFFING capital
stock, and with a tax advisor regarding the tax consequences of purchasing such
capital stock.
3. COVENANTS
XXXXXXX STAFFING and ITEC hereby agree to keep, perform and fully discharge the
following covenants and agreements.
5.1 XXXXXXX STAFFING and ITEC agree to use their commercially reasonable
efforts to satisfy the Closing conditions set forth herein by the Closing Date,
or earlier if possible.
5.2 From the date of this Agreement until Closing Date, XXXXXXX STAFFING
shall:
5.2.1 use commercial best efforts to preserve intact its business
organization, licenses, and permits; and
5.2.2. perform, in all material respects, all obligations under
agreements.
5.3 From the date of this Agreement until the Closing Date, XXXXXXX STAFFING
will not, without the prior written consent of ITEC, do any of the following:
5.2.3 take any action, which would (i) adversely affect the ability of any
party hereto to obtain any consents required for the transactions contemplated
thereby, or (ii) adversely affect the ability of any party hereto to perform its
covenants and agreements;
5.2.4 make any distribution related to earnings any payment of cash to any
shareholder of XXXXXXX STAFFING other than normal payments made in the ordinary
course of business consistent with past practices;
5.2.5 impose on any material asset, or suffer the imposition on any material
asset of, any lien;
5.2.6 sell, pledge or encumber, or enter into any contract to sell, pledge
or encumber, any interest in the assets of XXXXXXX STAFFING;
5.2.7 purchase, lease or otherwise acquire any assets or properties, whether
real or personal, tangible or intangible, or sell, lease or otherwise dispose of
any assets or properties, whether real or personal, tangible or intangible,
except in the ordinary course of business and consistent with past practices;
5.2.8 grant any increase in compensation or benefits to the employees or
officers; pay any severance or termination pay or any bonus other than pursuant
to written policies or written contracts in effect as of the date hereof and
disclosed on the schedules hereto, unless such action is first approved in
writing by ITEC's Chief Executive Officer;
5.2.9 enter into or amend any employment contract (unless such amendment is
required by law) that XXXXXXX STAFFING does not have the unconditional right to
terminate without liability (other than liability for services already
rendered), at any time on or after the Closing;
5.2.10 make any significant change in any tax or accounting methods or
systems of internal accounting controls, except as may be appropriate to conform
to changes in tax laws or regulatory accounting requirements or GAAP;
5.2.11 commence any litigation other than in accordance with past practice,
settle any litigation involving any liability for material money damages or
restrictions upon the Business;
5.2.12 except in the ordinary course of business and which is not material,
modify, amend or terminate any material contract or waive, release, compromise
or assign any material rights or claims;
5.2.13 make or commit to make any capital expenditure, or enter into any
lease of capital equipment as lessee or lessor;
5.2.14 take any action, or omit to take any action, which would cause any of
the representations and warranties contained herein to be or become untrue or
incorrect;
5.2.15 make any loan to any person or increase the aggregate amount of any
loan currently outstanding to any person that would be payable following the
Closing; or
5.2.16 grant any rights, securities or other instruments that include or
contain any right to purchase or otherwise obtain limited liability interests of
XXXXXXX STAFFING, which extends beyond the Closing Date.
5.4 From the date of this Agreement until Closing Date, ITEC shall perform
in all material respects all obligations under agreements.
5.5 From the date of this Agreement until the Closing Date, ITEC will not,
without the prior written consent of XXXXXXX STAFFING, do any of the following:
5.5.1 take any action, which would (i) adversely affect the ability of any
party hereto to obtain any consents required for the transactions contemplated
thereby, or (ii) adversely affect the ability of any party hereto to perform its
covenants and agreements;
5.5.2 enter into any agreement or commitment to do any of the
foregoing.
4. CONDITIONS PRECEDENT TO OBLIGATIONS OF ITEC
Each and all of the obligations of ITEC to consummate the transactions
contemplated by this Agreement are subject to fulfillment prior to or at the
Closing of the following conditions:
6.1 ITEC will have completed its due diligence review and satisfied itself
that the representations and warranties of XXXXXXX STAFFING contained herein are
accurate and shall be accurate in all respects as if made on and as of the
Closing Date. XXXXXXX STAFFING shall have performed all of the obligations and
complied with each and all of the covenants, agreements and conditions required
to be performed or complied with by it on or prior to the Closing Date
6.2 No action, suit, proceeding or investigation before any court,
administrative agency or other governmental authority shall be pending or
threatened wherein an unfavorable judgment, decree or order would prevent the
carrying out of this Agreement or any of the transactions contemplated hereby,
declare unlawful the transactions contemplated hereby, cause such transactions
to be rescinded, or which might affect the right of ITEC or its affiliates to
own, operate or control JACKSON STAFFING.
6.3 XXXXXXX STAFFING shall not have been adversely affected in any way by
any act of God, fire, flood, accident, war, labor disturbance, legislation, or
other event or occurrence, whether or not covered by insurance, and there shall
have been no change in the assets or the business JACKSON STAFFING or XXXXXXX
STAFFING's financial condition, properties or prospects, which would have a
material adverse effect thereon.
6.4 All corporate, member, regulatory and other actions and proceedings in
connection with the transactions contemplated hereby and all documents
incidental thereto, and all other related legal matters, shall be satisfactory
in form and substance to counsel for ITEC, and ITEC shall have received all such
resolutions, documents and instruments, or copies thereof, certified if
requested, as its counsel shall have reasonably requested.
6.5 There shall have been no change, circumstance or occurrence that has had
or would have a material adverse effect on the business, operations, and
properties, condition (financial or otherwise) or prospects of XXXXXXX STAFFING.
5. CONDITIONS PRECEDENT TO OBLIGATIONS OF XXXXXXX STAFFING
Each and all of the obligations of XXXXXXX STAFFING to consummate the
transactions contemplated by this Agreement are subject to fulfillment prior to
or at the Closing of the following conditions:
7.1 The representations and warranties of ITEC contained herein shall be
accurate in all respects as if made on and as of the Closing Date. ITEC shall
have performed all of the obligations and complied with each and all of the
covenants, agreements and conditions required to be performed or complied with
on or prior to Closing Date.
7.2 No action, suit, proceeding or investigation before any court,
administrative agency or other governmental authority shall be pending or
threatened wherein an unfavorable judgment, decree or order would prevent the
carrying out of this Agreement or any of the transactions contemplated hereby,
declare unlawful the transactions contemplated hereby or cause such transactions
to be rescinded.
7.3 All corporate and other actions and proceedings in connection with the
transactions contemplated hereby and all documents incidental thereto, and all
other related legal matters, shall be reasonably satisfactory in form and
substance to counsel for XXXXXXX STAFFING, and XXXXXXX STAFFING shall have
received all such resolutions, documents and instruments, or copies thereof,
certified if requested, as its counsel shall have reasonably requested.
8. SURVIVAL AND INDEMNIFICATION
8.1 All representations, warranties, covenants and agreements contained in
this Agreement or in any document delivered pursuant hereto shall be deemed to
be material and to have been relied upon by the parties hereto. All
representations and warranties contained in this Agreement shall survive the
Closing for the applicable statute of limitations period, and all
representations, warranties and covenants to be made or performed after the
Closing shall survive the Closing until made or performed and for the applicable
statute of limitations period after their due date. The indemnity obligations
of each party to this Agreement shall terminate (absent fraud or intentional
misrepresentation) one year from the Closing Date. Any claim for
indemnification that is asserted within one year of the Closing Date shall
survive until resolved or judicially determined. The representations and
warranties contained in this Agreement shall not be affected by any
investigation, verification or examination by any party hereto or by anyone on
behalf of any such party.
8.2
8.2.1 XXXXXXX STAFFING shall hold harmless and defend ITEC and its
successors and assigns from and against any and all claims related to, caused by
or arising from (a) any misrepresentation or breach of warranty or failure to
fulfill any covenant or agreement of XXXXXXX STAFFING set forth in this
Agreement, or any other misrepresentation, breach of warranty or failure to
fulfill a covenant or agreement by XXXXXXX STAFFING contained in any agreement
or other document delivered pursuant hereto, or (b) any and all claims of third
parties made based upon facts alleged that, if true, would have constituted such
a misrepresentation, breach or failure.
8.2.2 ITEC shall indemnify, hold harmless and defend XXXXXXX STAFFING and
its representatives, officers, members, managers, directors, affiliates,
successors and assigns, from and against any and all claims related to, caused
by or arising from (i) any misrepresentation, breach of warranty or failure to
fulfill any covenant or agreement of ITEC contained herein or in any agreement
or other document delivered pursuant hereto, or (ii) any and all claims of third
parties made based upon facts alleged that, if true, would constitute such a
misrepresentation, breach or failure.
8.3 The party seeking indemnification under this article (the "Indemnified
Party") shall give prompt written notice to the indemnifying party (the
"Indemnifying Party") of the facts and circumstances giving rise to any claim,
provided, however, that an Indemnified Party's failure to give such notice shall
not impair or otherwise affect such Indemnified Party's right to indemnification
except to the extent that the Indemnifying Party demonstrates actual damage
caused by such failure. All rights contained in this article are cumulative and
are in addition to all other rights and remedies, which are otherwise available,
pursuant to the terms of this Agreement or applicable law. All indemnification
rights shall be deemed to apply in favor of the indemnified party's officers,
directors, representatives, subsidiaries, affiliates, successors and assigns.
8.4 The Indemnified Party shall not settle or compromise any claim by a
third party for which the Indemnified Party is entitled to indemnification
hereunder without the prior written consent of the Indemnifying Party (which
consent shall not be unreasonably withheld), unless legal action shall have been
instituted against the Indemnified Party and the Indemnifying Party shall not
have taken control of such suit within fifteen (15) days after notification
thereof as provided herein. In connection with any claim giving rise to
indemnification hereunder resulting from or arising out of any claim by a person
other than the Indemnified Party, the Indemnifying Party shall, upon written
notice to the Indemnified Party, assume the defense of any such claim without
prejudice to the right of the Indemnifying Party thereafter to contest its
obligation to indemnify the Indemnified Party in respect to the claims asserted
therein. If the Indemnifying Party assumes the defense of any such claim, the
Indemnifying Party shall select counsel to conduct the defense in such claims
and at its sole cost and expense shall take all steps necessary in the defense
or settlement thereof. The Indemnifying Party shall not consent to a settlement
of, or the entry of any judgment arising from, any claim, without the prior
written consent of the Indemnified Party, unless the Indemnifying Party admits
in writing its liability to hold the Indemnified Party harmless from and against
any losses, damages, expenses and liabilities arising out of such settlement.
The Indemnified Party shall be entitled to participate in the defense of any
such action with its own counsel and at its own expense. If the Indemnifying
Party does not assume the defense of any such claim resulting there from in
accordance with the terms hereof, the Indemnified Party may defend such claim in
such a manner as it may deem appropriate, including settling such claim after
giving notice of the same to the Indemnifying Party on such terms as the
Indemnified Party may deem appropriate, and in any action by the Indemnified
Party seeking indemnification from the Indemnifying Party in accordance with the
provisions of this article, the Indemnifying Party shall not be entitled to
question the manner in which the Indemnified Party defended such claim or the
amount or nature of any such settlement. In the event of a claim by a third
party, the Indemnified Party shall cooperate with the Indemnifying Party in the
defense of such action (including making a personal contact with the third party
if deemed beneficial) and the relevant records of party shall be made available
on a timely basis.
9. MISCELLANEOUS
9.1. Payment of Fees and Expenses. If any legal action or any arbitration or
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other proceeding is brought for the enforcement of this Agreement, or because of
an alleged dispute, breach, default, or misrepresentation in connection with any
of the provisions of this Agreement, the successful or prevailing party or
parties shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled.
9.2. Entire Agreement. This Agreement, including the documents and writings
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referred to herein or delivered pursuant hereto, which form a part hereof,
contains the entire understanding of the parties with respect to its subject
matter. This Agreement supercedes all prior agreements and understandings
between the parties with respect to its subject matter.
9.3. Governing Law. This Agreement shall be governed by and construed
--------------
in accordance with the laws of the State of California, without regard to its
conflict of laws provisions.
9.4. Notices. Any and all notices, demands or other communications required
-------
or desired to be given by any party shall be in writing and shall be validly
given or made to another party if given by personal delivery, telex, facsimile,
telegram or if deposited in the United States mail, certified or registered,
postage prepaid, return requested.
If to ITEC:
Imaging Technologies Corporation
00000 Xxx xxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxx Xxxxx, CEO and Chairman
If to XXXXXXX STAFFING:
Xxxxxxx Staffing, Inc
000 X. Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Owner
9.5 Titles and Captions. Paragraph titles and captions contained in this
---------------------
Agreement are inserted only as a matter of convenience and for reference and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision.
9.10 Counterpart Signature Pages. This Agreement may be executed by the
-----------------------------
Parties through counterpart signature pages (and not as part of one document
bearing all signatures consecutively), all of which, when together, shall
constitute satisfaction of the signature requirements. Facsimile signature
pages shall also be acceptable.
9.11 Authority. The undersigned individuals and/or entities execute this
---------
Agreement on behalf of their respective parties, and represent and warrant that
said individual and/or entities are authorized to enter into and execute this
Agreement on behalf of such Parties, that the appropriate corporate resolutions
or other consents have been passed and/or obtained (if necessary), and that this
Agreement shall be binding on the Party on whose benefit they are executing this
Agreement.
9.12 Waiver, Modification and Amendment. All waivers hereunder must be made
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in a signed writing, and failure by either Party at any time to require the
other Party's performance of any obligation under this Agreement shall not
affect the right subsequently to require performance of that obligation. Any
waiver of a breach or violation of any provision of this Agreement shall not be
construed as a waiver of any continuing or succeeding breach of such provision
or a waiver or modification of the provision. This Agreement may be modified or
amended only by a later writing signed by all of the Parties.
9.13 Provisions Severable. The Parties expressly agree and contract that it
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is not the intention of any of them to violate any public policy, statutory or
common laws, rules, regulations, treaties or decisions of any government or
agency thereof. If any section, sentence, clause, word or combination thereof
in this Agreement is judicially or administratively interpreted or construed as
being in violation of any such provisions of any jurisdiction, such sections,
sentences, words, clauses or combinations thereof shall be inoperative in each
such jurisdiction and the remainder of this Agreement shall remain binding upon
the Parties in each such jurisdiction.
9.14 Successors. This Agreement is binding upon and shall inure to the
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benefit of the Parties and each Party's respective successors, assigns, heirs,
spouses, agents and personal representatives, enforceable against each of them
in accordance with its terms.
9.15 Assignment. This Agreement may not be assigned in whole or in part, by
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either Party, whether by operation of law or by contract, without the prior,
written consent of the other Party, which consent may be given or withheld in
the sole and exclusive discretion of such other Party.
9.16 Announcements. Neither Party shall make any public release or filing
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concerning this Settlement Agreement nor the transactions contemplated hereby
without prior approval of other Party. If no response is received from the Party
of whom response is requested within three (3) business days of receipt, then
right to publish such release or filing shall be deemed given.
IN WITNESS WHEREOF, the parties hereto have set forth their hand as of the date
and year first above written.
IMAGING TECHNOLOGIES CORPORATION
By: _______________________________
Xxxxx Xxxxx
Its Chief Executive Officer and Chairman
XXXXXXX STAFFING, INC.
by: ______________________________
Xxxxx Xxxxxxxxx
Its: Owner
