CONSULTING AGREEMENT
Exhibit 10.8
EXECUTION
VERSION
THIS
CONSULTING AGREEMENT (this “Agreement”), dated as of
July 15, 2019, is entered into by and between Command Center, Inc.
(“CCNI”) and (b) Dock Square HQ, LLC, a
Delaware limited liability company (“Dock Square”). CCNI and
Dock Square are referred to collectively herein as the
“Parties” and individually
as a “Party”.
RECITALS
WHEREAS, pursuant to an Agreement and
Plan of Merger dated April 8, 2019, among CCNI One, Inc.
(“Merger Sub
1”), CCNI, HQ Holdings, Command Florida, LLC
(“Merger Sub
2”), and Xxxxxxx Xxxxxxxx, as Member Representative
(the “Merger
Agreement”), (i) Merger Sub 1will merge with and into
HQ Holdings, and HQ Holdings will be the surviving entity in such
merger, (ii) HQ Holdings will then merge with and into Merger Sub
2, and Merger Sub 2 will be the surviving entity in such merger,
(iii) CCNI will be converted to a Delaware corporation, and (iv)
the members of HQ Holdings will receive shares of common stock of
CCNI, in each case on the terms and subject to the conditions set
forth in the Merger Agreement;
WHEREAS, Dock Square desires to provide
to CCNI, and CCNI desires to receive from Dock Square, the Services
in exchange for the issuance by CCNI of CCNI Shares to Dock Square,
in each case on the terms and subject to the conditions set forth
herein; and
WHEREAS, the Parties desire to enter
into this Agreement in connection with and pursuant to the Merger
Agreement.
NOW, THEREFORE, in consideration of the
foregoing and the respective representations, warranties,
covenants, and agreements set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound,
hereby agree as follows:
1. Definitions.
For
purposes of this Agreement (a) references to
“Exhibits”, “Schedules” and
“Sections” are to Exhibits, Schedules and Sections of
this Agreement unless expressly indicated otherwise, (b) references
to statutes include all rules and regulations promulgated
thereunder, and all amendments and successors thereto from time to
time, (c) the word “including” shall be construed as
“including without limitation”, (d) all
“Exhibits”, Recitals and “Schedules” of
this Agreement are incorporated herein by reference, (e) unless the
context otherwise requires, the words “hereof’,
“hereby” and “herein” and words of similar
meaning when used in this Agreement refer to this Agreement in its
entirety (including all Exhibits and Schedules hereto) and not to
any particular Exhibit, Schedule, Section or provision of this
Agreement, and (f) all references in
this Agreement to any gender include references to all genders, and
references to the singular include references to the plural and
vice versa. Certain capitalized terms are defined in this Agreement
where they first appear. Certain other capitalized terms used in
this Agreement are defined in this Section
1 as
follows:
“2% Owner” is defined in
the definition of Independent Third Party.
“3-Year Look-Back Test” is
defined in Schedule
I.
“3-Year Look-Back
Threshold” shall mean three (3) times the applicable
Gross Revenue Threshold attributed to the applicable CCNI
Shares.
1
“3-Year Measurement
Period” shall mean the remaining portion of the fiscal
year in which the Gross Revenue Threshold (including
“contracted” and “non-contracted” revenue)
was achieved, plus 3 additional fiscal years
thereafter.
“Affiliate” means, with
respect to any Person, (a) any other Person, directly or
indirectly, controlled by, under common control of, or controlling
such Person; (b) any other Person, directly or indirectly, in which
such Person holds, of record or beneficially, 5% or more of the
equity or voting securities; (c) any other Person that holds, of
record or beneficially, 5% or more of the equity or voting
securities of such Person; or (d) any director, officer, manager
(if such Person is a limited liability company) or general partner
of such Person.
“Agreement” is defined in
the Preamble of this Agreement.
“Board” means the board of
directors of CCNI.
“Business Day” means any
day that is not a Saturday, Sunday or any other day on which banks
are required or authorized to be closed in Berkeley County, South
Carolina.
“CCNI” is defined in the
Preamble of this Agreement.
“CCNI Share” or
“CCNI
Shares” means unregistered, voting common stock in
CCNI, which shall be issued to Dock Square in return for services
provided to CCNI or any of its subsidiaries by Dock Square, subject
to the terms of this Agreement.
“Contract” means any
written or oral contract, agreement, instrument, obligation,
commitment, arrangement, or undertaking of any nature (including
leases, licenses, mortgages, notes, guarantees, sublicenses,
subcontracts, letters of intent, bonds, pledges, indentures,
options, concessions, franchises and purchase orders).
“control” (including, with
correlative meanings, the terms “controlled by” and
“under common
control with”) means, as used with respect to any
Person, the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such Person, whether through ownership of voting securities, by
contract or agreement or otherwise.
“Dock Square” is defined
in the Preamble of this Agreement.
“Equity Holders” means any
Persons that holds any Equity Interests in any another
Person.
“Equity Interests” means
(a) any partnership interests, (b) any membership or limited
liability company interests or units, (c) any shares of capital
stock (including CCNI Shares), (d) any other interest or
participation (including profits interests) that confers on a
Person the right to receive a share of the profits and losses of,
or Distributions of, the issuing entity, (e) any subscriptions,
calls, warrants, options, or commitments of any kind or character
relating to, or entitling any Person or entity to purchase or
otherwise acquire membership or limited liability company interests
or units, capital stock, or any other equity securities, (f) any
securities convertible into or exercisable or exchangeable for
partnership interests, membership or limited liability company
interests or units, capital stock, or any other equity securities,
or (g) any other interest classified as an equity security of a
Person.
2
“Gross Revenue” means any
and all revenue (whether or not from any Contract) generated by
CCNI or any of its subsidiaries or any franchise (or similar
enterprise of CCNI or any of its subsidiaries, in each case,
directly or indirectly, attributed (as determined in good faith by
CCNI) to the Services (including the use of Dock Square (or any of
its officer’s, director’s or equity holder’s)
name, brand or derivation thereof); provided, however, that (a) revenue shall
be determined when paid to the applicable Person and for any
applicable 12-month period, Gross Revenue shall include any
accounts receivable that is collected within the standard and
customary accounts receivable payment cycle for, or as contracted
by, CCNI with respect to the specific customer after the expiration
of such 12-month period, and (b) if CCNI or Dock Square elects to
specifically target or meet with a new or existing customer, CCNI
shall use commercially reasonable efforts to inform Dock Square,
and Dock Square shall use commercially reasonable efforts to inform
CCNI, of the same. By way of example, if a customer orders and pays
CCNI $2,000,000 annually prior to the date hereof and Dock Square
provides Services such that the customer orders and pays CCNI
$6,000,000 annually, Gross Revenue shall equal the difference, or
$4,000,000.
“Gross Revenue Threshold”
and “Gross Revenue
Thresholds” is defined in Schedule I.
“Immediate Family Member”
means with respect to any Person who is an individual, each
grandparent, parent, spouse, civil or domestic partner, sibling
(including step-siblings), niece, nephew, or child (including those
adopted) or other lineal descendant (including all grandchildren,
great grandchildren, etc.) of such individual and each custodian or
guardian of any property of one or more of such Persons in the
capacity as such custodian or guardian.
“Independent Third Party”
means any Person, who, immediately prior to a contemplated
transaction, directly or indirectly (including through such
Person’s Affiliates), (a) does not own in excess of 2% of any
of CCNI’s Equity Interests (a “2% Owner”), (b) is not,
or was not, a member of the Board of CCNI , (c) is not controlling,
controlled by or under common control with, any such 2% Owner or a
member of the Board of CCNI , and (d) is not an Immediate Family
Member of any such 2% Owner or a member of the Board of CCNI or a
trust for the benefit of such 2% Owner, a member of the Board of
CCNI, and/or such other Persons.
“Merger Agreement” is
defined in the Recitals of this Agreement.
“Merger Sub 1” is defined
in the Recitals of this Agreement.
“Merger Sub 2” is defined
in the Recitals of this Agreement.
“Organizational and Governing
Documents” means (a) any certificate or articles of
incorporation, bylaws, certificate or articles of formation,
operating agreement or partnership agreement, (b) any documents
comparable to those described in clause (a) as may be applicable
pursuant to any law and (c) any amendment, restatement or
modification to any of the foregoing.
“Party” and
“Parties” is defined in
the Preamble of this Agreement.
“Person” means an
individual, partnership, joint venture, association, corporation,
trust, estate, limited liability company, limited partnership,
limited liability limited partnership, limited liability
partnership, unincorporated entity of any kind, governmental
entity, or any other legal entity.
3
“Services” means any
actions taken by Dock Square to (a) make introductions to any
prospective customers on behalf of CCNI or its subsidiaries, (b)
attend meetings either in person or telephonically, participate on
telephone calls, or correspond with any prospective or existing
customers on behalf of CCNI or its subsidiaries, (c) expand a
relationship with any existing customers on behalf of CCNI, (d)
participate in the execution of a Contract (or amendment thereof)
or arrangement with any customer on behalf of CCNI or its
subsidiaries, in each case that results in an executed Contract or
additional business for CCNI or its subsidiaries, and/or (e) use of
Dock Square’s name or brand (or that of any of its officers,
directors, managers, equity holders or Affiliates) with any
prospective or existing customers on behalf of CCNI or its
subsidiaries; provided, however, that if CCNI or Dock
Square elects to specifically target or meet with a new or existing
customer, CCNI shall use commercially reasonable efforts to inform
Dock Square, and Dock Square shall use commercially reasonable
efforts to inform CCNI, of the same.
“Transaction
Documents” means this Agreement and each of the other
agreements, certificates, documents and instruments contemplated
hereby and thereby, including all Schedules and Exhibits
hereto.
2. Services; Business Opportunities;
Reimbursements.
(a) During the period
commencing on the date hereof, Dock Square (on a consulting basis)
shall provide the Services to CCNI or its subsidiaries, as
applicable. In performing the Services provided for hereunder, Dock
Square is acting as an independent contractor. Nothing in this
Agreement shall be interpreted or construed as creating or
establishing an employment relationship between CCNI or its
subsidiaries and Dock Square. Dock Square acknowledges and agrees
that Dock Square is solely responsible for all taxes, withholdings,
and other similar statutory obligations including self-employment
tax and workers’ compensation insurance incurred in
connection with the provision of Services hereunder.
(b) The
doctrine of corporate opportunity, or any analogous doctrine, shall
not apply to Dock Square or any of its officers, directors,
managers, equity holders or Affiliates. CCNI renounces any interest
or expectancy of CCNI in, or in being offered an opportunity to
participate in, business opportunities that are from time to time
presented to Dock Square or any of its respective Affiliates.
Neither Dock Square nor any of its officers, directors, managers,
equity holders or Affiliates who acquires knowledge of a potential
transaction, agreement, arrangement or other matter that may be an
opportunity for CCNI, shall have any duty to communicate or offer
such opportunity to CCNI, and neither Dock Square nor any of its
officers, directors, managers, equity holders or Affiliates shall
not be liable to CCNI, or to its Equity Holders for breach of any
fiduciary or other duty by reason of the fact that Dock Square or
any of its officer, directors, equity holders or Affiliates pursues
or acquires for, or directs such opportunity to another Person or
does not communicate such opportunity or information to CCNI or its
Equity Holders; provided, however, that (i) no amendment
or repeal of this Section
2(b) shall apply unless approved in writing by Dock Square,
(ii) in no event shall this Section 2(b) with respect to
Dock Square apply to any temporary staffing opportunities (Dock
Square shall present all such temporary staffing opportunities to
CCNI), and (iii) the foregoing restrictions in clause (ii) shall not (A) apply with
respect to any such temporary staffing opportunities if Dock Square
offers a temporary staffing opportunity to CCNI and CCNI does not
notify Dock Square of its election to pursue such opportunity
within twenty (20) days thereafter, and/or (B) prevent any Dock
Square employee from participating in any venture in the same
capacity that they participate on the date hereof.
(c) CCNI
will directly pay or reimburse Dock Square or any of its officers,
directors, managers, equity holders or Affiliates, as the case may
be, for such Person’s reasonable and actual business and
travel expenses incurred in the course of providing (or related to)
the Services; provided,
that in no event shall any such payments or reimbursements be made
for Dock Square’s overheard, salaries, or similar
costs.
4
3. Dock
Square’s CCNI Shares. Subject to the satisfaction of the grant and
vesting requirements of the CCNI Shares set forth in
Schedule
I, CCNI shall issue to Dock
Square the number of CCNI Shares set forth in such
schedule.
4. Information
Rights. In the event that Xxxx
Xxxxxxxx is no longer an officer actively involved in the control
of business operations of CCNI, upon written request by Dock
Square, CCNI shall furnish to Dock Square customer and related
Gross Revenue information to the extent necessary to enable Dock
Square to verify Gross Revenue related to the Services.
Notwithstanding the foregoing, nothing in this provision shall be
interpreted to require CCNI to provide such information in any
specific or unreasonable format that would be overly burdensome to
CCNI. All information provided pursuant to this Section 4
shall be subject to the terms and
conditions set forth in Section
7.
(a) Registration.
If CCNI proposes to register any shares of its common stock
(“Common
Stock”) under the Securities Act of 1933, as amended
(the “Securities
Act”), in connection with the public offering of such
Common Stock solely for cash (other than in an Excluded
Registration) (such shares, the “CCNI Registrable
Shares”), CCNI shall promptly give Dock Square notice
of such registration at least 30 days before the anticipated filing
date. Within ten (10) days after receipt of such notice by Dock
Square, Dock Square may request in writing to have its Registrable
Securities included in such offering. Thereafter, CCNI shall,
subject to the provisions of Section 5(b), use commercially
reasonable efforts to cause to be registered all of the Registrable
Securities that Dock Square has requested to be included in such
registration. CCNI shall have the right to terminate or withdraw
any registration initiated by it under this Section 5(a) before the
effective date of such registration, whether or not Dock Square has
elected to include the Registrable Securities in such registration.
The expenses (other than Selling Expenses) of such withdrawn
registration shall be borne by CCNI.
(b) Underwriting
Requirements. In connection with any registration pursuant
to Section 5(a),
CCNI shall include the Registrable Securities that are requested by
Dock Square to be included in such registration on the same terms
and conditions as the CCNI Registrable Shares otherwise being sold
in such registration; provided, however, that with respect to
any such registration initiated by CCNI, (x) Dock Square shall
accept all reasonable terms of the underwriting agreement as agreed
upon between CCNI and the managing underwriter, and (y) if the
managing underwriter advises CCNI in writing that, in its
reasonable opinion, the inclusion of all CCNI Registrable Shares,
together with the Registrable Securities requested by shareholders
to be included in such registration would interfere with the
successful marketing (including pricing) of the CCNI Registrable
Shares, then the number of CCNI Registrable Shares and the
Registrable Securities to be included in such registration shall be
reduced pro rata based on the number of CCNI Registrable Shares and
Registrable Securities with registration rights owned by each shareholder, including Dock Square,
who is participating in such offering, or in such other proportions
as shall mutually be agreed to by such shareholders (including Dock
Square).
(c) Information
Requirements. It shall be a condition precedent to the
obligations of CCNI to take any action pursuant to this
Section 5 with
respect to the Registrable Securities of Dock Square that Dock
Square shall furnish to CCNI such information regarding itself, the
Registrable Securities held by it, and the intended method of
disposition of such Registrable Securities as is reasonably
required to effect the registration of the Registrable
Securities.
5
(d) Expenses
of Registration. All expenses (other than Selling Expenses)
incurred in connection with registrations or filings pursuant to
Section 5(a),
including all registration and filing fees; printers’ and
accounting fees; and fees and disbursements of counsel for CCNI,
shall be borne and paid by CCNI. All Selling Expenses relating to
the Registrable Securities registered pursuant to this Section 5 shall be borne and
paid by Dock Square.
(e) Indemnification.
CCNI agrees to indemnify, to the extent permitted by applicable
law, Dock Square, its officers and directors and each Person who
controls Dock Square against any losses, claims, damages,
liabilities and expenses (including reasonable attorneys’
fees) (collectively, “Damages”) incurred and
caused by any untrue or alleged untrue statement of material fact
contained in any registration statement or any amendment thereof or
supplement thereto, or any omission or alleged omission of a
material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as the same
are caused by or contained in any information furnished in writing
to CCNI by or on behalf of Dock Square expressly for use therein.
Dock Square agrees to indemnify, to the extent permitted by
applicable law, CCNI and its directors, each of its officers who
signs the registration statement, each Person who controls CCNI,
legal counsel and accountants for CCNI, any underwriter and any
other shareholder of CCNI Registrable Shares against any Damages
incurred, in each case only to the extent that such Damages are
caused by or contained in any information furnished in writing to
CCNI by or on behalf of Dock Square expressly for use in connection
with such registration; provided, however, that in no event shall
the amounts payable under this Section 5(e) exceed the net
proceeds from the offering received by Dock Square, except in the
case of fraud or intentional misconduct by Dock
Square.
(f) Legend
Removal. Upon the request of Dock Square from time to time
following the expiration of the applicable holding period for any
Registrable Securities under Rule 144 of the Securities Act
(“Rule
144”), CCNI agrees to cooperate with Dock Square and,
following the delivery by Dock Square of the information described
in clauses (i)
through (iii)
below, take all steps reasonably necessary in order to promptly
effect the removal of any restrictive legend on the Registrable
Securities, provided, however, that if such request is made with
respect to Registrable Securities acquired from CCNI or an
affiliate (as defined under Rule 144) of CCNI within one year of
such request, CCNI shall only be required to remove any restrictive
legend on such Registrable Securities in connection with a sale.
CCNI shall bear all costs associated with the removal of such
legend, regardless of whether the request is made in connection
with a sale or otherwise, so long as Dock Square provides to CCNI
any information CCNI deems reasonably necessary to determine that
the legend is no longer required under the Securities Act or
applicable state securities laws, including (if there is no
applicable registration statement) (i) a certification that the
holder is not an affiliate (as defined under Rule 144) of CCNI,
(ii) a covenant to inform CCNI if it should thereafter become an
affiliate (as defined under Rule 144) of CCNI and to consent to the
notation of an appropriate restriction in such event, and (iii) a
certification as to the length of time the Registrable Securities
have been held.
(g) Defined
Terms. The following terms used in this Section 5 have the respective
meanings set forth below:
(i) “Excluded
Registration” means (a) a registration relating to the
grant, issuance or sale of securities to employees of the Company
or a subsidiary pursuant to a stock option, stock purchase, or
similar plan or other compensatory arrangement; (b) a registration
relating to an SEC Rule 145 transaction; (c) a registration on SEC
Forms S-4 and S-8, any successor forms thereto, or any other form
not available for registering the resale of the Registrable
Securities or that does not include substantially the same
information as would be required to be included in a registration
statement covering the resale of the Registrable Securities; or (d)
a registration in which the only Common Stock being registered is
Common Stock issuable upon conversion of debt securities that are
also being registered.
6
(ii) “Registrable
Securities” means the shares of Common Stock that have
vested and been issued to Dock Square pursuant to this Agreement;
provided,
however, that
“Registrable Securities” shall exclude in all cases (x)
any securities sold by a Person in a transaction in which the
applicable rights under
this Agreement are not assigned
pursuant to Section
10(c), or (y) any securities
that may be sold pursuant to an effective registration
statement; provided,
further,
that “Registrable Securities” shall exclude any
securities that may be sold without restriction pursuant to Rule
144 and with respect to which an approval for listing has been
obtained by CCNI at its sole expense from the trading market on
which the Common Stock is then listed. For the avoidance of
doubt, “Registrable Securities” shall not include any
CCNI Shares that are not vested to Dock Square pursuant to the
terms of this Agreement.
(iii) “Selling
Expenses” means all underwriting discounts, selling
commissions, and stock transfer taxes applicable to the resale of
the Registrable Securities, and fees and disbursements of counsel
for Dock Square.
6. Dividends.
Any dividends may be made when and in
the amounts determined by CCNI in its sole discretion to
CCNI’s holders of shares of common stock on a pro rata basis
based on their relative number of shares of common stock;
provided,
however,
that for the purpose of this
Section
6, the number of CCNI Shares
held by Dock Square at the time of such dividends shall be subject
to the vesting provisions pursuant to, and in accordance
with, Schedule I
(and for the avoidance of doubt Dock
Square (A) shall be entitled to receive any dividends with respect
to any CCNI Shares that (1) have been earned by achieving the
applicable 12-Month Gross Revenue Thresholds pursuant to, and in
accordance with, Schedule I,
and (2) remain unvested during the
applicable 3-Year Measurement Period with respect to such 3-Year
Look-Back Test, and (B) shall not be entitled to receive any
dividends with respect to any CCNI Shares that (1) remain unvested
upon the expiration of the applicable 3-Year Measurement Period
with respect to such 3-Year Look-Back Test and/or (2) are unearned
by not achieving the applicable 12-Month Gross Revenue Thresholds
pursuant to, and in accordance with, Schedule I
and shall remain unearned until the
applicable 12-Month Gross Revenue Threshold is met. For the
avoidance of doubt, Dock Square has no right to cause CCNI to
declare or pay any dividends. Dock Square will enter into any
agreement reasonable necessary to effect the applicable limitations
on the payment of dividends set forth in this Section
6.
7. Non-Disclosure. Each Party
hereto agrees that all non-public information furnished to such
Party pursuant to this Agreement will be kept confidential and will
not be disclosed by such Party, or by any of such Party’s
agents, representatives, employees or Affiliates, in any manner, in
whole or in part, except that such Party shall be permitted to
disclose such information (a) to such Party’s agents,
representatives, employees and Affiliates who need to be familiar
with such information in connection with such Party’s
performance of its obligations hereunder or the monitoring of such
Party’s investment in CCNI, and who are informed of the
confidential nature thereof, (b) to the extent requested by any
government agency or self-regulatory body having jurisdiction over
such Party, (c) to the extent required by applicable law (so long
as such Party shall have, to the extent legally permissible, first
provide the other Party a reasonable opportunity to contest the
necessity of disclosing such information) or the rules of any
securities exchange, (d) to the extent necessary for the
enforcement of any right of such Party arising under this
Agreement, to any Person who is informed of, and agrees to be bound
by, the confidential nature hereof or thereof, and (f) if such
information is known or becomes generally available to the public
other than as a result of the unauthorized disclosure of such
information by such Party or such Party’s agents,
representative, employees or Affiliates; provided, however, that any Party shall
also be permitted to disclose such information to its current and
prospective partners and equity holders in connection with its
Affiliates’ normal fund raising, marketing, informational or
reporting activities so long as they are informed of the
confidential nature thereof and agree to keep such information
confidential on the terms set forth herein. Each Party will be
responsible for any breaches or violations by its respective
agents, representatives, employees and Affiliates of the
obligations contained in this Section 7.
7
8. Representations,
Warranties and Covenants. Each
of the Parties hereby severally represents and warrants to the
other Parties, as the case may be, as follows:
(a) Such Party (i) if
an entity, is duly formed, validly existing and in good standing
under the laws of its jurisdiction of organization and has all
requisite power and authority to enter into, deliver, and perform
its obligations under, this Agreement and the other Transaction
Documents, and to consummate the transactions contemplated hereby
and thereby, and (ii) if an individual, has all legal capacity and
authority to enter into, deliver, and perform its obligations
under, this Agreement and the other Transaction Documents, and to
consummate the transactions contemplated hereby and thereby. With
respect to each Party which is an entity, the execution, delivery
and performance of this Agreement and the other Transaction
Documents the transactions contemplated hereby and thereby have
been duly authorized by the Board or its Board of Managers, as
applicable.
(b) This Agreement and
the other Transaction Documents have been duly authorized by all
necessary action and does not contravene any provision of any
Party’s Organizational and Governing Documents or any law,
regulation, rule, decree, order, judgment or contractual
restriction binding on such Party or any of its
assets.
(c) All consents,
approvals, authorizations, permits of, filings with and
notifications to, any Person necessary for the due execution,
delivery and performance of this Agreement and the other
Transaction Documents by such Party have been obtained or made and
all conditions thereof have been duly complied with, and no other
action by, and no notice to or filing with, any Person is required
in connection with the execution, delivery or performance of this
Agreement and the other Transaction Documents by such
Party.
(d) This Agreement and
the other Transaction Documents constitute a legal, valid and
binding obligation of such Party enforceable against such Party in
accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditors’ rights
generally, and (ii) general equitable principles (whether
considered in a proceeding in equity or at law).
(e) When the CCNI
Shares are issued by CCNI as contemplated by this Agreement, such CCNI Shares
will be duly and validly issued free and clear of any lien,
security interest, mortgage, pledge, encumbrance, charge, claim or
restriction of any kind whatsoever (other than restrictions imposed
by applicable securities law), and no liability for any capital
contributions or for any obligations to CCNI will attach
thereto.
(f) CCNI is duly
organized, validly existing and in good standing under the laws of
the State of its incorporation or formation with all requisite
power and authority to own its properties and to carry on its
business as such business is now conducted.
(g) The execution,
delivery and performance of this Agreement by such Party does not
and will not conflict with, violate or cause a breach of any
agreement, contract or instrument to which such Party is a party or
any judgment, order or decree to which such Party is
subject.
(h) CCNI is not in
default under or in violation of any provision of its
Organizational and Governing Documents.
8
9. Closing.
(b) The
closing of the transactions contemplated hereunder (the
“Closing”)
will take place by exchange of
electronic counterpart signatures on the date hereof, concurrently
with the closing pursuant to the Merger Agreement (the
“Closing
Date”). All transfers and
deliveries hereunder will be deemed to have been made
simultaneously and will become effective as of 12:01 a.m. (Eastern
Time) on the Closing Date.
(c) At or prior to the
Closing, each of the Parties (as applicable) shall deliver,
or cause to be delivered, to the
Parties (as the case may be) the separate instruments
reasonably required by a Party in connection with the consummation
of the transactions contemplated under this Agreement.
10. Miscellaneous.
(a) Notices. All notices, requests,
demands and other communications required or permitted hereunder
shall be in writing and shall be deemed to have been duly given (a)
one (1) Business Day after being delivered by hand, (b) five (5)
Business Days after being mailed first class or certified with
postage paid, (c) one (1) Business Day after being couriered by
overnight receipted courier service, or (d) one (1) Business Day if
sent by email or confirmed facsimile transmission, in each case to
the Parties at addresses set forth on the signature pages hereto,
or to any other address as any Party may designate by written
notice to the other Parties.
(b) Modification.
No amendment or modification to this
Agreement shall be binding on any Party, unless the amendment or
modification is in writing and executed by all of the Parties with
the same formality as this Agreement.
(c) Successors;
Assigns. This Agreement shall
be binding upon the Parties, their heirs, administrators,
successors, executors and assigns. Dock Square shall not assign any
of its rights or obligations under this Agreement without the prior
written consent of CCNI.
(d) Counterparts.
This Agreement may be executed in
multiple counterparts (including by means of facsimile or
electronically transmitted portable document format (PDF) signature
pages), any one of which need not contain the signatures of more
than one Party, but all such counterparts taken together shall
constitute one and the same instrument and shall have the same
force and effect as an original fully executed version of this
Agreement.
(e) Headings.
All headings set forth in this
Agreement are intended for convenience only and shall not control
or affect the meaning, construction or effect of this Agreement or
of any of its provisions.
(f) Entire
Agreement. This Agreement
(including the Exhibit and Schedules hereto) constitutes the entire
agreement of the Parties with respect to the contemplated
transactions set forth herein, and it is agreed that any prior oral
or written agreements are null and void.
(g) Severability.
The invalidity of any one or more
provisions of this Agreement shall not affect the enforceability of
the remaining provisions of this Agreement. In the event that any
one or more of the provisions contained in this Agreement shall be
declared invalid, this Agreement shall be construed as if the
invalid provision or provisions had not been
inserted.
9
(h) No
Third Party Beneficiary. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any Person,
other than the Parties and their respective heirs, personal
representatives, legal representatives, successors and assigns, any
rights or remedies under or by reason of this
Agreement.
(i) Schedules,
Exhibits, Sections and Articles. All Schedules and Exhibits attached to this
Agreement shall be deemed part of this Agreement and incorporated
into this Agreement, as if fully contained in this Agreement. All
references in this Agreement to an Exhibit, Section, or Schedule
shall mean an Exhibit, Section, or Schedule to this Agreement
(unless otherwise indicated). All references in this Agreement to
this Agreement shall include all of the Exhibits or Schedules
attached to this Agreement.
(j) Further
Assurances. Each of the
Parties, at the Closing, or at any time or times thereafter, upon
request of any Party, will execute such additional instruments,
documents or certificates as any Party deems reasonably necessary
in order to effect the transactions contemplated
hereby.
(k) Governing
Law. This Agreement shall be
governed by and construed and enforced in accordance with the laws
of the State of Florida, without regard to its conflicts of laws
principles.
(l) Arbitration.
The Parties (and all Persons claiming
by or through them) agree that any dispute, suit, action or
proceeding whatsoever relating to, arising out of, in connection
with, or with respect to, this Agreement, its validity or the
subject matter hereof that cannot be resolved by negotiation or
mediation between the Parties within thirty (30) days will be
resolved exclusively by binding confidential arbitration under the
Commercial Rules (Expedited) of the American Arbitration
Association (AAA) then in effect. Arbitration will take place in
New York City, New York before a panel of three (3) arbitrators.
Each Party will select one (1) arbitrator and those two arbitrators
will select a third arbitrator who will act as chair. Any questions
as to the arbitrability of any such dispute, suit, action or
proceeding and as to the validity of this Section 10(1)
shall be determined by the 3-member
arbitration panel. The arbitration shall commence upon service of a
demand for arbitration in accordance with the AAA Rules. There
shall be no discovery allowed in the arbitration, except that each
Party shall be entitled to serve ten (10) requests for production
of documents and ten (10) interrogatories from the other Party,
which must be responded to within ten (10) Business Days of
service, and each Party shall provide to the other Party five (5)
Business Days in advance of the hearing the written evidence upon
which it intends to rely. The final arbitration hearing shall be
conducted within thirty (30) days of the appointment of the
arbitration panel. The final arbitration hearing shall last no
longer than two (2) days. The Parties may, by mutual agreement,
waive any or all of the foregoing deadlines. If either Party fails
or refuses to pay its share of any fee due to or advance requested
by the AAA or the arbitration panel, the other Party may advance
it, and that sum shall be credited or awarded in the final award to
the Party advancing the fees, whether or not it is the prevailing
Party, in addition to any other sums the arbitrators may award, if
any. The final award shall include an award in favor of the
prevailing Party of actual costs and reasonable attorneys’
fees, including, without limitation, the filing and arbitration
fees. Orders to compel arbitration, or in aid of arbitral
jurisdiction, and to enforce any arbitral award, may be entered in
any court having jurisdiction thereof, including costs and
reasonable attorneys’ fees incurred in enforcing such award.
Proceeding to arbitration and obtaining an award thereunder shall
be a condition precedent to the bringing or maintaining of any
action in any court with respect to any dispute whatsoever arising
under this Agreement, except for an action in aid of arbitral
jurisdiction. Each Party hereby waives any right to seek removal of
any dispute to any state or federal courts except as provided in
this Agreement. WITHOUT WAIVER OR COMPROMISE, IN ANY WAY, OF THE
FOREGOING, EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF.
[REMAINDER OF PAGE INTENTIONAL LEFT BLANK]
10
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first above written.
|
|
COMMAND CENTER, INC.
By:
/s/ Xxxxxxx
Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Chief Executive Officer, President
Address:
000 Xxxxxxxxxx Xxxxx
Xxxxx
Xxxxx, XX 00000
Attn:
Xxxxxxx Xxxxxxxx
E-Mail:
xxxxxxxxxx@xxxxxxxxxxxx.xxx
|
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first above written.
|
|
DOCK SQUARE:
DOCK SQUARE HQ, LLC
By:
/s/ Xxxx
Xxxxxx
Name:
Xxxx
Xxxxxx
Title:
Authorized
Signatory
Address:
0000 Xxxxxxxxx
Xxx
Xxxxx
000
Xxxxx
Xxxxxx, XX 00000
Attn:
Xxxx
Xxxxxx
Facsimile:
(___)
E-Mail:
xxxx@xxxxxxxxxxxxxxxx.xxx
|
[
Schedule Redacted ]
[Signature Page to
Consulting Agreement]
