ASSIGNMENT AND ASSUMPTION AGREEMENT, OPTION AND BILL OF SALE
ASSIGNMENT AND ASSUMPTION
AGREEMENT, OPTION AND XXXX OF SALE
This ASSIGNMENT AND ASSUMPTION
AGREEMENT, OPTION and XXXX OF SALE (the “Agreement”),
is made and entered into this 18th day of
November, 2009 (“Effective
Date”), by and between ClearPoint Resources, Inc., a Delaware corporation
(the “Company”)
and Staffchex, Inc, a California corporation (“STX”). The
Company and STX may be referred to herein each as a “Party”
and collectively as the “Parties.”
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties hereto, intending to be legally bound hereby, agree as
follows:
1. Assignment. For
good and valuable consideration as set forth in Section 3 below, STX,
on behalf of itself and its subsidiaries, hereby gives, grants, bargains,
conveys, assigns, sells, transfers and delivers to the Company, its successors
and assigns, all of STX’s and/or its subsidiaries’ right, title, benefits,
privileges and interest in, to and under the customer contracts set forth on
Schedule A
attached hereto (the “Contracts”),
including but not limited to the right to collect, assert or enforce any claim,
right, title or interest of any kind in and to the Contracts and to institute
and prosecute all actions, suits and proceedings in order to collect, assert or
enforce any such claim, right, title or interest. The Contracts are
assigned free and clear of all liens, encumbrances, security interests, pledges
and other such rights. The Company hereby accepts the assignment of
such Contracts, at and as of the date hereof.
2. Assumption of Liabilities
and Obligations. In conjunction with the transfer of the
Contracts made under Section 1 hereof, the Company hereby assumes the
obligations under the Contracts; provided that the Company does not assume any
liabilities whatsoever, known or unknown, occurring on or before the Effective
Date, but not limited to;
(a) any
Liabilities in respect of taxes attributable to Contracts for taxable periods or
any portion of any taxable period ending on or before the Effective
Date;
(b) any
payment obligations of STX, including accounts or notes payable, arising prior
to the Effective Date;
(c) any
fines and penalties imposed by any Governmental Authority resulting from any
breach, default or other act or omission by STX or its direct or indirect
subsidiaries or parent companies that occurred prior to the date
hereof;
(d) any
income Taxes attributable to income received by STX;
(e) any
Liability of STX arising as a result of its execution and delivery of this
Agreement or any Ancillary Agreement, the performance of its obligations
hereunder or thereunder, or the consummation by STX of the transactions
contemplated hereby or thereby;
(f)
any Liability arising out of (A) any Claim pending or threatened as of, or
arising out of any event, circumstance or condition occurring or existing prior
to, the Effective Date, or (B) any actual or alleged violation of law prior to
the Effective Date, including without limitation any and all Liabilities for
workers compensation premiums, workers compensation claims, and losses related
to injuries, and any and all liabilities related to any litigation, action,
proceeding or other claim against or affecting or related to the Contracts; in
each case occurring prior to the Effective Date; and
(g) any
Liability of STX based on their acts or omissions after the Effective
Date.
3. Consideration. In
consideration of the assignment hereunder:
a. The
Company hereby surrenders, assigns and delivers to STX all of its right, title
and interest in and to its rights to Twelve Thousand Four Hundred and Five
(12,405) shares of STX currently owned by the Company which represents 40% of
the shares of STX currently owned by the Company and all rights of the Company
assignable by the Company with respect to such shares and shall, on the date
hereof deliver all certificates evidencing all shares of STX currently owed by
the Company for cancellation and shall reissue Eighteen Thousand Six Hundred and
Seven (18,607) shares to the Company, which shall be evidence the entire amount
of the STX shares then-owned by the Company (the “Option
Shares”).
b. The
Company hereby grants to STX the option to purchase the Option Shares at any
time prior to the earlier of: (i) 5:00 p.m. California Time on the second
anniversary of this Agreement or (ii) the date on which the Company duly assigns
and delivers the Option Shares to STX in accordance with the Success Fee, as
defined and required under the Second Amendment (the “Option
Notice Deadline”). At any time prior to the Option Notice
Deadline, STX may elect, by delivering written notice to the Company (the “Option
Exercise Notice”), to purchase all (but not less than all), right, title
and interest in and to the Option Shares and rights of the Company assignable by
the Company with respect to the Option Shares (the “Option Acquired Rights”),
for a purchase price (the “Option
Price”) equal to $250,000. In the event STX exercises the
Option and the Option Exercise Notice is received by the Company before the
Option Notice Deadline, on a date (the “Option
Closing Date”) specified in the Option Exercise Notice but not less than
thirty (30) days after the date of the Option Exercise Notice, STX will purchase
from the Company and the Company will sell and assign to STX, all, right, title
and interest in and to the Option Shares and the Acquired Rights assignable by
the Company with respect to the Option Notes, for the Option
Price. The Company hereby agrees that, prior to the Option
Notice Deadline, it shall not and not cause or permit any of its affiliates to
transfer, sell, assign or otherwise dispose of the Option Shares.
c. The
Company shall further amend (the further amendment hereafter referred to as the
“Second Amendment” and incorporated herein as part of this Agreement) the iLabor Network Supplier Agreement dated
February 28, 2008 as Amended on March 16, 2009 (“the Agreement”), to reduce the
Fee as defined in Paragraph 3 of the Agreement. The Fee reduction
will be subject to the terms and conditions as defined in the Second
Amendment.
4. Further
Assurances. STX hereby covenants and agrees that, at any time
and from time to time after the delivery of this Agreement, at the Company’s
reasonable request and without further consideration, STX, its successors and
assigns will do, execute, acknowledge and deliver, or will cause to be done,
executed, acknowledged and delivered, any and all such further conveyances,
transfers, assignments, powers of attorney and assurances as the Company
reasonably may request to more effectively contribute, assign, transfer and
deliver the Contracts to the Company, or to better enable the Company to realize
upon or otherwise enjoy the Contracts or to carry into effect the intent and
purposes of this Agreement.
5. Title to Contracts and Right
to Transfer. STX represents and warrants that it holds, and on
the date hereof shall hold, all legal and beneficial right, title and interest
in and to the Contracts, free and clear of any lien, encumbrances, security
interests, pledges and other such rights. STX represents and warrants
that it has the right to transfer and assign Contracts pursuant to the terms of
this Agreement.
6. Remedies for
Breach. If STX breaches this Agreement, the Company shall have
all legal and equitable remedies available to it. Additionally, in
the event of a bankruptcy of STX, the Company shall have the immediate right, in
its sole discretion, to return the Contracts to STX and immediately increase the
Fee to its original, amended rate of 1.25%.
7. Governing
Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Pennsylvania without
reference to the choice of law principles thereof. Any legal action
or proceeding arising out of or in connection with this Agreement shall be
brought in the federal or state courts located in Philadelphia or Bucks
Counties, Pennsylvania, and the parties hereto irrevocably submit to the
exclusive jurisdiction of such courts. Each of the parties hereto
hereby irrevocably waives any objection to the laying of venue, in personam
jurisdiction or based on grounds of forum non-conveniens which it may now or
hereafter have to the bringing of any action or proceeding in such
jurisdiction.
7. Binding
Effect. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
heirs, administrators, personal representatives, successors and assigns of the
Parties hereto.
8. No Third Party
Beneficiaries. Nothing in this Agreement, express or
implied, is intended or shall be construed to confer upon or give to any person,
firm or corporation, other than the Company or STX and their successors and
assigns, any remedy or claim under or by reason of this Agreement or any term,
covenant, condition, promise or agreement hereof, and all of the terms,
covenants, promises and agreements contained in this Agreement shall be for the
sole and exclusive benefit of the Company or STX and their successors and
assigns.
9. Amendment;
Waiver. This Agreement shall not be amended or modified except
by a written instrument duly executed by each of the Parties
hereto. Any extension or waiver by any Party of any provision hereto
shall be valid only if set forth in an instrument in writing signed on behalf of
such Party.
10. Counterparts. This
Agreement may be executed in two counterparts, each of which shall be deemed an
original, but all of which shall be considered one and the same
agreement.
[SIGNATURES
ON FOLLOWING PAGE]
IN WITNESS WHEREOF, this Assignment and
Assumption Agreement and Xxxx of Sale has been signed by or on behalf of each of
the Parties as of the date first written above.
| STAFFCHEX, INC. | |||
|
|
By:
|
/s/ Xxxxx Xxxxx | |
| Name: Xxxxx Xxxxx | |||
| Title: CEO | |||
| CLEARPOINT RESOURCES, INC. | |||
|
|
By:
|
/s/ Xxxxxxx Xxxxxx | |
| Name: Xxxxxxx Xxxxxx | |||
| Title: CEO | |||
SCHEDULE
A
CONTRACTS
