EXHIBIT 2.2
ASSET PURCHASE AGREEMENT
DATED AS OF JANUARY 19, 1998
BY AND BETWEEN
CRUEL XXXX ENTERPRISES, LLC.
AS BUYER,
OUTSOURCE INTERNATIONAL OF AMERICA, INC.
AS SELLER, AND
XXXXXXX X. XXXXX AND XXXXX X. XXXXX
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of the 19th
day of January, 1998 ("Agreement"), by and among Cruel Xxxx Enterprises, L.L.C.,
an Arkansas limited liability company ("Buyer"), OutSource International of
America, Inc., a Florida corporation ("Seller"), Xxxxxxx X. Xxxxx ("Xxxxxxx
Xxxxx") and XxXxx X. Xxxxx ("XxXxx Xxxxx").
RECITALS:
WHEREAS, Seller, Tempus, Inc., a Tennessee corporation ("Tempus") and
Xxxx Xxxxxxx entered into that certain Asset Purchase Agreement dated January
12, 1998 pursuant to which Seller acquired from Tempus substantially all of the
assets of its temporary and permanent staffing business (the "Business");
WHEREAS, Xxxxxxx Xxxxx and Xxxxx Xxxxx own all of the membership units
of Buyer;
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, on the terms and conditions set forth herein, substantially all of
the assets of each of the four (4) offices of the Business set forth on EXHIBIT
A hereto (the "Purchased Offices");
WHEREAS, OutSource Franchising, Inc. (as assignee of Labor World of
America, Inc.), an affiliate of Seller ("OFI"), and Xxxxxxx Xxxxx are parties to
a Franchise Agreement dated March 13, 1995 (the "Franchise Agreement");
WHEREAS, Xxxxxxx Xxxxx has assigned his rights under the Franchise
Agreement to Buyer;
WHEREAS, as a condition to the consummation of the transactions
contemplated hereby, OFI and Buyer will amend the Franchise Agreement (the
"Amendment to Franchise Agreement");
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. SALE OF ASSETS; ASSUMPTION OF LIABILITIES.
1.1 SALE OF ASSETS OF SELLER. Subject to the terms and conditions
hereof, Seller will sell, convey, assign, transfer and deliver to Buyer at the
Closing (as hereafter defined), and Buyer will purchase and accept at the
Closing, all assets, office equipment, computers, furniture, decorative items,
customer lists, properties, privileges, rights, interests, business and goodwill
(except the Excluded Assets, as hereinafter defined) used or held for use in
connection with the operation of the Purchased Offices, of every kind and
description, real, personal and mixed, tangible and intangible and wherever
located as listed on SCHEDULE 1.1 hereto (such assets,
properties, privileges, rights, interests, business and goodwill being
transferred hereunder are hereinafter referred to collectively as the "Assets").
1.2 ASSETS RETAINED BY SELLER. There shall be excluded from the Assets
and retained by Seller all of the following (collectively, the "Excluded
Assets"):
(a) All of Seller's cash, cash equivalents and accounts
receivable;
(b) The SUTA rates of the Purchased Offices; and
(c) Any of the rights of Seller under this Agreement (or under
any agreement between Seller on the one hand and Buyer on the other hand entered
into on or after the date of this Agreement).
1.3 ASSUMPTION OF LIABILITIES. At the Closing, Buyer shall assume, and
shall agree to satisfy and discharge as the same become due only those
liabilities and obligations of Seller specifically listed on SCHEDULE 1.3 hereto
(the "Assumed Obligations") and, subject to Section 1.4 of this Agreement, the
Assumed Leases (as hereafter defined). The Assumed Liabilties and the Assumed
Obligations are the only liabilties of Seller to be assumed by Buyer hereunder.
Seller further agrees to satisfy and discharge as the same shall become due all
of its obligations and liabilities not specifically assumed by Buyer hereunder.
1.4 LEASES. Buyer shall assume all of the liabilities and obligations
of Seller under the real property leases listed on SCHEDULE 1.4 hereto (the
"Assumed Leases") with respect to periods after the Closing Date.
1.5 PAYMENT FOR ASSETS. As payment for the Assets, at Closing, Buyer
shall issue and deliver to Seller a promissory note in the principal amount of
Seven Hundred Eighty Thousand Dollars and No Cents ($780,000.00), bearing
compound interest at the rate of eight percent (8%) per annum (the "Note"),
substantially in the form attached hereto as EXHIBIT B. Seller agrees to provide
Buyer, on a periodic basis, a statement with respect to the application of
payments on the Note to the outstanding principal and interest components of the
Note.
1.6 POST-CLOSING ADJUSTMENT TO NOTE. Within one hundred twenty (120)
days following the Closing Date, Seller shall disclose to Buyer in writing (the
"1997 Sales Notice") the 1997 sales of the Business during its 1997 fiscal year
attributible to the Purchased Offices (the "1997 Sales"). If the 1997 Sales were
less than $3,000,000.00, (the "Minimum 1997 Sales"), the outstanding principal
amount of the Note shall be reduced, retroactive to the effective date of the
Note, by the product of (i) 0.26 and (ii) the difference between the Minimum
1997 Sales and the 1997 Sales. Upon delivery of the 1997 Sales Notice, Seller
shall also deliver to Buyer copies of the work papers reviewed by Seller in
connection with its calculation of the 1997 Sales.
1.7 SERVICE MARKS. Seller hereby grants Buyer the non-exclusive right
to use the service marks of Seller listed on SCHEDULE 1.7 hereto for a period of
ninety (90) days following the Closing Date in connection with the operation of
the Purchased Offices.
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1.8 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated
among the Assets as set forth on EXHIBIT C hereto (the "Allocation"). The
Allocation shall be made in accordance with Section 1060 of the Internal Revenue
Code of 1986, as amended (the "Code") and applicable Treasury regulations. Buyer
and Seller shall: (i) be bound by the Allocation for purposes of determining any
Taxes (as hereafter defined); (ii) prepare and file tax returns on a basis
consistent with the Allocation; and (iii) take no position inconsistent with the
Allocation in any proceeding before any taxing authority or otherwise. In the
event that the Allocation is disputed by any taxing authority, the party
receiving notice of the dispute shall promptly notify the other parties hereto
of the receipt of such notice. Seller and Buyer each shall timely after the
Closing file form 8594 with the Internal Revenue Service detailing this
allocation. In the event that Seller determines that any adjustments to such
allocation are necessary, and Buyer consents to such adjustments, Buyer shall
make such modifications as are necessary in Buyer's form 8594 or any tax report
or return filed or to be filed by Buyer in order to conform to Seller's
allocation as adjusted.
1.9 FEES. Buyer shall pay at Closing all applicable transfer, sales,
use, bulk sales and other taxes, and all documentary, filing, recording and
vehicle registration fees payable as a result of the transfer of the Assets. All
such payments shall be made at the Closing.
2. CLOSING DATE.
2.1 TIME AND PLACE OF CLOSING. The closing of the sale and purchase of
the Assets (the "Closing") will take place at the office of Xxxxxx Xxxxx
Attorneys, Suite 401, 0000 Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx at 1:00 p.m.,
Central Standard Time, on January 19, 1997, provided that the consummation of
the acquisition of the Business has occurred on such date, or at such other time
and place as the parties may establish (the date of the Closing being
hereinafter referred to as the "Closing Date"). The transactions contemplated
hereby shall be deemed to be effective as of 12:01 a.m., Central Daylight Time,
on the Closing Date.
2.2 DELIVERIES BY SELLER. At or prior to the Closing, Seller shall
execute and deliver or cause to be executed and delivered to Buyer the
following:
(a) An Assignment and Xxxx of Sale, in substantially the form
attached as EXHIBIT D hereto;
(b) An Assignment and Assumption Agreement, in substantially
the form attached as EXHIBIT E hereto;
(c) An Assignment and Assumption of Lease for each of the
Assumed Leases substantially in substantially the form attached as EXHIBIT F
hereto; and
(d) Such other instruments of sale, transfer, conveyance and
assignment as Buyer and its counsel may reasonably request.
2.3 DELIVERIES BY BUYER. At or prior to Closing, Buyer shall execute
and deliver or cause to be executed and delivered to Seller the following:
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(a) The Note;
(b) A Guaranty executed by Xxxxxxx X. Xxxxx and Xxxxx X.
Xxxxx, in substantially the form attached hereto as EXHIBIT G;
(c) The Assignment and Assumption Agreement;
(d) An Assumption and Assumption of Lease for each of the
Assumed Leases, in substantially the form of EXHIBIT F hereto;
(e) The Amendment to Franchise Agreement, in substantially the
form attached hereto as EXHIBIT H; and
(f) An Opinion of Buyer's Counsel substantially in the form
attached hereto as EXHIBIT I; and
(g) Such other instruments of assumption as Seller and its
counsel may reasonably request.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller, as a material inducement to
Buyer to enter into this Agreement and consummate the transactions contemplated
hereby, makes the following representations and warranties to Buyer. The term
"knowledge" or similar language used in this Section 3 shall, in each case, mean
the best knowledge of Seller, after reasonable investigation.
3.1 TRANSFER OF TITLE TO ASSETS. Pursuant to this Agreement and the
Exhibits hereto, Seller shall sell, convey assign and transfer good and
marketable title to the Assets free and clear from any liens or encumbrances.
Seller is in actual or constuctive possession of all of the Assets.
3.2 ORGANIZATION. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida. Seller has
all requisite corporate power to execute, deliver and perform its obligations
under this Agreement and to consummate the transactions contemplated hereby.
Seller has the requisite corporate power to carry on its business as it is now
being conducted and to own and operate the properties and assets now owned and
operated by it. Seller is duly qualified to transact business as a foreign
corporation in the State of Arkansas.
3.3 AUTHORITY CONCERNING THIS AGREEMENT. The execution, delivery and
performance by Seller of this Agreement and of each agreement, document or
instrument executed and delivered or to be executed and delivered in connection
with the transactions contemplated hereby, and the consummation of the
transactions contemplated hereby and thereby, have been duly and validly
authorized and approved by all necessary corporate action of Seller. This
Agreement is (and, when executed and delivered, each agreement, document or
instrument to be executed and delivered in connection with the transactions
contemplated hereby will be) valid and binding upon Seller, and enforceable
against Seller in accordance with their respective terms except to the extent
that enforcement thereof may be limited by applicable bankruptcy,
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reorganization, insolvency or moratorium laws, or other laws affecting the
enforcement of creditors' rights or by the principles governing the availability
of equitable remedies.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. As a material inducement for Seller
to enter into this Agreement and to consummate the transactions contemplated
hereby, Buyer, Xxxxxxx Xxxxx and Xxxxx Xxxxx, jointly and severally, represent
and warrant to Seller as follows:
4.1 ORGANIZATION. Buyer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Arkansas.
Buyer has all requisite power and authority to own and operate its properties,
to carry on its business as now being conducted and to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby.
4.2 AUTHORITY CONCERNING THIS AGREEMENT. The execution, delivery and
performance by Buyer of this Agreement and of each agreement, document or
instrument executed and delivered or to be executed and delivered in connection
with the transactions contemplated hereby, and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized and approved by all necessary action of Buyer. This Agreement is
(and, when executed and delivered, each agreement, document or instrument to be
executed and delivered in connection with the transactions contemplated hereby
will be) valid and binding upon Buyer, and enforceable against Buyer in
accordance with their respective terms except to the extent that enforcement
thereof may be limited by applicable bankruptcy, reorganization, insolvency or
moratorium laws, or other laws affecting the enforcement of creditors' rights or
the principles governing the availability of equity remedies.
5. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE. Seller's obligation to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment, at or prior to Closing, of each of the following conditions
precedent (any or all of which may be waived in writing, in whole or in part, by
Seller):
5.1 ACQUISITION OF THE BUSINESS. Seller shall have successfully
consummated the acquisition of the Business.
5.2 PERFORMANCE OF OBLIGATIONS. Buyer shall have performed all of the
obligations and complied with all of the covenants required to be performed or
to be complied with by it under this Agreement on or prior to the Closing Date.
5.3 BOARD OF DIRECTORS. The board of directors of Seller shall have
approved Seller entering into this Agreement and the consummation of the
transactions contemplated hereby.
5.4 APPROVALS. Seller shall have obtained any and all approvals,
consents or assignments necessary for the consummation of the transactions
contemplated hereby, including, without limitation, any consents required by any
governmental or administrative body or other third parties.
5.5 LITIGATION. There shall not have been instituted, pending or
threatened against Buyer, any suit, action or other proceeding by any private
party or governmental agency,
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commission, bureau or body seeking to restrain or prohibit any of the
transactions contemplated by this Agreement.
5.6 DELIVERIES. Buyer shall have delivered or caused delivery of the
items set forth in Section 2.3 hereof.
5.7 REPRESENTATIONS AND WARRANTIES. Each representation and warranty of
Buyer contained in this Agreement shall be true and correct both at the date on
which this Agreement is signed and at and as of the Closing Date as if made anew
at and as of such time.
5.8 RETENTION OF INDEPENDENT ACCOUNTING FIRM. Buyer shall have
retained, at its sole cost and expense, an independent public accounting firm,
reasonably acceptable to Seller, to audit and maintain Buyer's financial records
from the Closing Date through the term of the Note.
6. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. Buyer's obligation to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment, at or prior to Closing, of each of the following conditions
precedent (any or all of which may be waived in writing, in whole or in part, by
Buyer):
6.1 PERFORMANCE OF OBLIGATIONS. Seller shall have performed all of its
obligations and complied with all of its covenants required to be performed or
to be complied with by it under this Agreement on or prior to the Closing Date.
6.2 REPRESENTATIONS AND WARRANTIES. Each representation and warranty of
Seller contained in this Agreement shall be true and correct both at the date on
which this Agreement is signed and at and as of the Closing Date as if made at
and as of such time.
6.3 DELIVERIES. Seller shall have delivered or caused delivery of the
items set forth in Section 2.2 of this Agreement.
7. POST-CLOSING COVENANTS OF BUYER. Buyer covenants and agrees with Seller that
from and after the date of this Agreement, except to the extent contemplated by
this Agreement or otherwise consented to in writing by Seller:
(a) Buyer shall operate its business in the same manner as
presently conducted and only in the ordinary and usual course and consistent
with past practice, and will use all reasonable efforts to preserve intact its
present business organization and to keep available the services of all
employees, representatives and agents. Buyer shall use all reasonable efforts,
consistent with its past practices, to promote its business and shall not take
or omit to take any action which causes, or which is likely to cause, any
deterioration of their present business or relationships with suppliers or
customers.
(b) Buyer will maintain all of its properties and assets,
tangible or intangible, in substantially the same condition and repair as such
properties and assets are maintained as of the date hereof, ordinary wear and
tear excepted, and shall take all reasonable steps necessary to
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maintain and protect its intangible assets. Buyer shall not sell, lease or
otherwise dispose of any of its Assets except in the ordinary course of business
consistent with past practice.
(c) For a period of six (6) months following the Closing Date,
Buyer shall not terminate any of the employees of the Purchased Offices without
the prior written consent of Seller, which consent shall not be unreasonably
withheld.
(d) Buyer shall keep its properties and business insured to
the same extent as insured on the date hereof.
(e) Buyer will use its best efforts to obtain, within thirty
(30) days after the Closing Date, non-competition agreements, in form and
substance reasonably acceptable to Seller, from the employees of the Purchased
Offices pursuant to which they shall agree not to compete with Seller in
Pulaski, Faulkner, Lonoke and Saline Counties in the State of Arkansas for a
period of one (1) year following cessation of their employment with Buyer.
(f) Buyer will maintain its books, accounts and records in
accordance with good business practice and generally accepted accounting
principles consistently applied.
(g) Buyer shall not take any action that would cause its
representations and warranties set forth herein not to be true and correct at
and as of the Closing Date as if made at and as of such time.
(h) Buyer will do, execute, acknowledge and deliver, or cause
to be done, executed, acknowledged and delivered, any and all such further acts,
instruments, papers and documents as may be reasonably necessary to carry out
and effectuate the intent and purposes of this Agreement.
(i) Buyer agrees that any sums of money received by Buyer for
services rendered by Seller (or Tempus) prior to the Closing Date will be
delivered to Seller within twenty-one (21) days following receipt thereof (the
"Buyer Forwarding Period"). Payments not delivered by Buyer within the Buyer
Forwarding Period shall begin to accrue interest at the rate of twelve percent
(12%) per annum commencing on the day following the Buyer Forwarding Period.
8. POST-CLOSING COVENANTS OF SELLER.
(a) Seller intends to make the existing computer software of
the Business compatible with the computer software of Seller (the "Software
Conversion"). Buyer agrees to pay Seller an amount equal to 17.5% of the
aggregate costs incurred by Seller in connection with the Software Conversion.
Cost breakdowns shall be provide to Buyer.
(b) Following forty-five (45) days after the Closing Date,
Seller agrees that any sums of money received by Seller for services rendered by
Buyer will be delivered to Buyer within twenty-one (21) days from receipt
thereof (the "Seller Forwarding Period"). Payments not delivered by Seller
within the Seller Forwarding Period shall begin to accrue interest at the rate
of twelve percent (12%) per annum commencing on the day following the Seller
Forwarding Period.
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(c) Seller will use its reasonable best efforts to obtain the
consent of the landlords to the assignment to Buyer of each of the Assumed
Leases.
(d) Seller shall provide Buyer with a copy of the Form 8-K
filed by OutSource International, Inc. ("OSI", Seller's parent) relating to the
acquisition of the Business within fifteen (15) days after filing such Form 8-K
with the Securities and Exchange Commission (the "SEC").
(e) Buyer shall be given reasonable and unrestricted access to
operational and financial data related to the locations purchased by Buyer and
located at the former Tempus offices.
9. MISCELLANEOUS.
9.1 ENTIRE AGREEMENT. This Agreement and the Exhibits and Schedules to
this Agreement constitute the entire agreement between the parties hereto with
respect to the subject matter hereof and supersede all prior negotiations,
understandings, agreements, arrangements and understandings, both oral and
written, between the parties hereto with respect to such subject matter. The
Exhibits and Schedules to this Agreement are incorporated into and constitute
part of this Agreement.
9.2 AMENDMENT. This Agreement may not be amended or modified in any
respect, except by the mutual written agreement of the parties hereto.
9.3 NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person,
firm, corporation, partnership, association or other entity, other than the
parties hereto and their respective successors and permitted assigns, any rights
or remedies under or by reason of this Agreement.
9.4 SURVIVABILITY. Notwithstanding any investigation made by or on
behalf of any party to this Agreement, the representations and warranties made
under and in connection with this Agreement shall be true and correct on and as
of the Closing Date with the same effect as if made on and as of such date and
shall survive the Closing and consummation of all the transactions contemplated
hereby.
9.5 WAIVERS AND REMEDIES. The waiver by any of the parties hereto of
any other party's prompt and complete performance, or breach or violation, of
any provision of this Agreement shall not operate nor be construed as a waiver
of any subsequent breach or violation, and the waiver by any of the parties
hereto to exercise any right or remedy which it may possess hereunder shall not
operate nor be construed as a bar to the exercise of such right or remedy by
such party upon the occurrence of any subsequent breach or violation.
9.6 SEVERABILITY. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part hereof, all of which are inserted conditionally on their being valid
in law, and, in the event that any one or more of the words, phrases, sentences,
clauses, sections or subsections contained in this Agreement shall be declared
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invalid by a court of competent jurisdiction, this Agreement shall be construed
as if such invalid word or words, phrase or phrases, sentence or sentences,
clause or clauses, section or sections, or subsection or subsections had not
been inserted.
9.7 DESCRIPTIVE HEADINGS/RECITALS. Descriptive headings contained
herein are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement. The recitals are incorporated
into and made a part of this Agreement.
9.8 COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be
executed in counterparts by the separate parties hereto, all of which shall be
deemed to be one and the same instrument. Facsimile signatures shall have the
same effect as original signatures.
9.9 NOTICES. All notices, consents, requests, instructions, approvals
and other communications provided for herein and all legal process in regard
hereto shall be in writing and shall be deemed to have been duly given: (i) when
delivered by hand; (ii) when delivered by facsimile (if written confirmation of
receipt of the facsimile is obtained from the party to be charged with notice);
(iii) five (5) days after being deposited in the United States mail by
registered or certified mail, return receipt requested, postage prepaid; or (iv)
on the second business day after being sent (prepaid for next day delivery), via
Federal Express, United Parcel Service, DHL or other nationally recognized
delivery service, as follows:
If to Buyer:
Cruel Xxxx Enterprises, LLC
0000 Xxxx Xxxxxx
Xxxxx Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
With a copy to:
Xxxxxx X. Xxxxxxx, Xx.
Lax, Vaughan, Xxxxxx & Xxxxx, P.A.
First Commercial Building
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
If to Seller:
OutSource International of America, Inc.
0000 Xxxx Xxxxxxx Xxxxxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
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With copies to:
Xxxxx X. Xxxxxx, Esq.
Vice President and General Counsel
OutSource International, Inc.
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Phone: (000) 000-0000
and
Xxxx X. Xxxxxx, Esq.
Holland & Knight LLP
One East Broward Boulevard, Suite 1300
Ft. Xxxxxxxxxx, Xxxxxxx 00000
or to such other address as any party hereto may from time to
time designate in writing delivered in a like manner.
9.10 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. None of the parties hereto shall assign any of its rights
or obligations hereunder without the express written consent of the other party
hereto.
9.11 APPLICABLE LAW. This Agreement shall be governed by, and shall be
construed, interpreted and enforced in Accordance with, the laws of the State of
Florida.
9.12 BROKERS AND AGENTS. Buyer has not retained any broker with respect
to the transaction contemplated pursuant to this Agreement. Buyer agrees to
indemnify Seller with respect to any claims made by any third party claiming a
brokerage fee or commission arising out of the transaction contemplated by this
Agreement from Seller.
9.13 EXPENSES. Except as otherwise provided herein, each of the parties
hereto agrees to pay all of the respective expenses incurred by it in connection
with the negotiation, preparation, execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby,
including accountants' and attorneys' fees.
9.14 CONFIDENTIALITY. No party hereto shall divulge any proprietary or
confidential information about another party that such party may have acquired
in connection with the transactions contemplated hereby (except as may be
required in connection with a party's consultation with its legal counsel,
financial institutions, or agents and representatives thereof) without the prior
written approval of all of the parties hereto, except and as to the extent: (i)
obligated by law, or (ii) necessary for such party to defend or prosecute any
litigation in connection with the transactions contemplated hereby. The parties
hereto acknowledge that any breach of the foregoing will give rise to
irreparable injury that is not compensable in damages and agree that any party
may seek and obtain equitable relief in the form of specific enforcement,
temporary restraining order, temporary or permanent injunction, or any other
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equitable remedy that may then be available to such party against the breach or
threatened breach of such covenants, in addition to any other legal remedies
which may be available.
9.15 CERTAIN INTERPRETATIONS. Words such as "herein," "hereof,"
"hereunder" and words of similar import refer to this Agreement as a whole and
not to any particular Section or subsection of this Agreement. The word
"material" as used in this Agreement shall mean a deviation of more than five
(5%) percent.
9.16 CONSENT TO JURISDICTION. The parties to this Agreement agree that
any claim, suit, action or proceeding, brought by either party, arising out of
or relating to this Agreement or the transactions contemplated hereby shall be
submitted for adjudication exclusively in any Florida state or federal court
sitting in Broward County, Florida, and each of the parties hereto expressly
agrees to be bound by such selection of jurisdiction and venue for purposes of
such adjudication. Each party: (i) waives any objection which it may have that
such court is not a convenient forum for any such adjudication; (ii) agrees and
consents to the personal jurisdiction of such court with respect to any claim or
dispute arising out of or relating to this Agreement or the transactions
contemplated hereby; and (iii) agrees that process issued out of such court or
in accordance with the rules of practice of such court shall be properly served
if served personally or served by certified mail or other form of substituted
service, as provided under the rules of practice of such court. In the event of
any suit, action or proceeding arising out of or relating to this Agreement or
the transactions contemplated hereby the prevailing party thereunder shall be
entitled to recover reasonable attorneys' and paralegals' fees (for
negotiations, trials, appeals and collection efforts) and court costs incurred
in connection therewith in addition to any other relief to which such party may
be entitled. The prevailing party shall be the party that prevails on its claim
whether or not an award or judgement is entered in its favor.
9.17 EQUITABLE RELIEF. The parties hereto acknowledge and agree that
any party's remedy at law for any breach or threatened breach of this Agreement
which relates to requiring that the breaching party take any action or refrain
from taking any action, would be inadequate and such breach or threatened breach
shall be per se deemed as causing irreparable harm to such party. Therefore, in
the event of such breach or threatened breach, the parties hereto agree that in
addition to any available remedy at law, including but not limited to monetary
damages, an aggrieved party shall be entitled to obtain equitable relief in the
form of specific enforcement, temporary restraining order, temporary permanent
injunction, or any other equitable remedy that may then be available to the
aggrieved party.
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IN WITNESS WHEREOF, the parties have executed and delivered
this Agreement as of the date first above written.
BUYER:
Witness:
Cruel Xxxx Enterprises, LLC
---------------------------
By: /s/ XXXXXXX X. XXXXX /s/ XXXXX X. XXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxx XxXxx X. Xxxxx
--------------------------- Title: Managing Members
Witness: XXXXXXX X. XXXXX
--------------------------- /s/ XXXXXXX X. XXXXX
-----------------------------------------
Xxxxxxx X. Xxxxx
---------------------------
Witness: XXXXX X. XXXXX
--------------------------- /s/ XXXXX X. XXXXX
-----------------------------------------
XxXxx X. Xxxxx
---------------------------
SELLER:
Witness:
OutSource International of America, Inc.
---------------------------
By: /s/ XXXXXX XXXXXXX
--------------------------------------
Name: Xxxxxx Xxxxxxx
--------------------------- Title: Executive Vice President
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LIST OF EXHIBITS
Exhibit A Purchased Offices
Exhibit B Note
Exhibit C Allocation of Purchase Price
Exhibit D Xxxx of Sale
Exhibit E Assignment and Assumption Agreement
Exhibit F Assignment and Assumption of Lease
Exhibit G Guaranty
Exhibit H Amendment to Franchise Agreement
Exhibit I Opinion of Buyer's Counsel
