STOCK TRANSFER AGREEMENT
Exhibit
10.5
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DATE:
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April
15, 2006
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BETWEEN:
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Pacel
Corp., a Nevada corporation
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0000
Xxxxxx Xxx., Xxxxx 000
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Xxxxxxxxx,
XX 00000
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(“Pacel”)
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AND:
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The
Resourcing Solutions Group, Inc. a Nevada
corporation
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0000
Xxxxxx Xxx., Xxxxx 000
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Xxxxxxxxx,
XX 00000
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(“Resourcing”)
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RECITALS
A. Pacel
holds all of the issued and outstanding common stock of PiedmontHR, Inc., World
Wide Personnel Services of Maine, Inc. and United Personnel Services, Inc.,
respectively, (collectively referred to as “ Personnel Services” and
the stock thereof referred to as “Personnel Stock”);
B. Resourcing
is the wholly-owned subsidiary of Pacel and Pacel desires to transfer, assign
and deliver the Personnel Stock to Resourcing as part of a plan of
reorganization of Pacel and Personnel Services, pursuant to the terms
and conditions of this Agreement.
NOW,
THEREFORE, in
consideration of the mutual promises and agreements set forth herein, the
parties hereto do hereby agree as follows:
AGREEMENT
1. Effective
Date The effective
date of
this Agreement shall be January 1, 2006 for United Personnel, Inc. and
Piedmont HR, Inc. and April 1, 2006 for World Wide Personnel Services of Maine,
Inc. (“Effective Date”).
2. Purchase
of Personnel Stock. At the Closing,
as
defined in Section 8 of this Agreement, Pacel shall assign, transfer and deliver
to Resourcing the Personnel Stock. The purchase price of the Personnel Stock
shall be $525,000.00(“Purchase Price”). The Purchase Price
shall be paid by a promissory note in the form attached hereto as Exhibit “A”
(“Resourcing Note”). The assignment, transfer, and delivery by Pacel of
the Personnel Stock to Resourcing shall be effected on the Closing Date by
Pacel’s execution and delivery of documents and instruments necessary to assign,
transfer, and deliver the Personnel Stock, free and clear of any and all liens,
encumbrances, security interests, claims and other restrictions or charges
of
any kind whatsoever in exchange for the delivery to Pacel of the Resourcing
Note.
3. Warranties
and Representations of Pacel Pacel
warrants and
represents to Resourcing, as of the date hereof, as follows:
(a) Pacel
is a corporation duly organized under the laws of the State of Nevada, validly
existing and in good standing, is authorized to exercise all its corporate
powers, rights and privileges and has the corporate power and authority to
own
and operate its properties and to carry on its businesses as now
conducted.
(b) Pacel
has all requisite legal and corporate power to execute and deliver this
Agreement, consummate the transactions contemplated hereby and perform its
obligations hereunder.
(c) All
corporate action on the part of Pacel necessary for the authorization,
execution, delivery and performance of all obligations under this Agreement
will
be taken and this Agreement constitutes a legal, valid and binding obligation
enforceable according to its terms.
(d) Pacel
has, and will have at Closing, legal and beneficial ownership of the Personnel
Stock, free and clear of any and all liens and encumbrances or other
restrictions or limitations and has, and will have at Closing, all required
legal and corporate power to transfer and convey the Personnel
Stock.
(e) There
are no claims, actions, suits, investigations or proceedings against Pacel
pending or, to the knowledge of Pacel, threatened in any court or before or
by
any governmental authority, or before any arbitrator, that might have an adverse
effect on Pacel, Personnel Services or the Personnel Stock, and to the knowledge
of Pacel, there is no basis for any such claim., action, suit, investigation
or
proceeding that is likely to result in a judgment, decree or order having an
adverse effect on Pacel, Personnel Services or the Personnel Stock. Pacel
is not in default under, and no condition exists that would (i)
constitute a default under, or breach or violation of, any legal requirement,
permit or contract applicable to Pacel or (ii) accelerate or permit the
acceleration of the performance required under, or give any party the right,
to
terminate any contract.
(f) No
suit, action or other proceeding is pending or, or to the knowledge of Pacel,
threatened before any governmental authority seeking to restrain Pacel or
prohibit its entry into this Agreement or prohibit the Closing, or seeking
damages against Pacel as a result of the consummation of this
Agreement.
(g) Neither
the execution and delivery of this Agreement nor the carrying out of any of
the
transactions contemplated hereby will:
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i.
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violate
or conflict with any of the terms and conditions or provisions of
the
articles of incorporation or bylaws of Pacel or of Personnel
Services;
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ii.
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violate
any legal requirement applicable to Pacel or to Personnel
Services;
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iii.
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violate,
conflict with, result in a breach of, constitute a default under,
or
accelerate or permit the acceleration of the performance required
by, or
give any other party the right to terminate, any contract or permit
applicable to Pacel or to Personnel
Services;
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iv.
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result
in the creation of any lien, charge or other encumbrance on any
property of Pacel or Personnel Services, other than as provided for
herein; or
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v.
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require
Pacel or Personnel Services to obtain or make any waiver, consent,
action,
approval or authorization of, or registration, declaration, notice
or
filing with, any private non-governmental third party or any governmental
authority.
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4. Warranties
and Representations of
Resourcing Resourcing
warrants and represents to Pacel as follows:
(a) Resourcing
is a corporation duly organized under the laws of the State of Nevada, validly
existing and in good standing, is authorized to exercise all its corporate
powers, rights and privileges and has the corporate power and authority to
own
and operate its properties and to carry on its businesses as now
conducted.
(b) Resourcing
has all requisite legal and corporate power to execute and deliver this
Agreement, consummate the transactions contemplated hereby and perform its
obligations hereunder.
(c) All
corporate action on Resourcing’s part necessary for the authorization,
execution, delivery and performance of all obligations under this Agreement
and
for the issuance and delivery of the Resourcing Note will be taken, and this
Agreement constitutes a legal, valid and binding obligation of Resourcing
enforceable according to its terms.
(d) Neither
the execution and delivery of this Agreement nor the carrying out of any of
the
transactions contemplated hereby will:
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i.
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violate
or conflict with any of the terms and conditions or provisions of
the
articles of incorporation or bylaws of
Resourcing;
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ii.
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violate
any legal requirement applicable to
Resourcing;
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iii.
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violate,
conflict with, result in a breach of, constitute a default under,
or
accelerate or permit the acceleration of the performance required
by, or
give any other party the right to terminate, any contract or permit
applicable to Resourcing;
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iv.
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result
in the creation of any lien, charge or other encumbrance on any
property of Resourcing; or
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v.
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require
Resourcing to obtain or make any waiver, consent, action, approval
or
authorization of, or registration, declaration, notice or filing
with, any
private non-governmental third party or any governmental
authority.
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(e) No
suit, action or other proceeding is pending or, to Resourcing’s best knowledge,
threatened before any governmental authority seeking to restrain Resourcing
or
prohibit entry into this Agreement or prohibit the Closing, or seeking damages
against Resourcing or its properties as a result of the consummation of this
Agreement.
(f) The
Resourcing Note, when issued and delivered in accordance with the terms of
this
Agreement and for the consideration expressed herein, shall be duly and validly
issued.
5. Covenants.
5.1 Approval
of Directors Prior to the
effective date of this Agreement, Pacel and Resourcing, to the extent required,
shall each hold a special meeting of their respective Boards of Directors to
approve the Agreement and the transactions contemplated thereby.
5.2 Third
Party Consents Resourcing and
Pacel
each agree to use their respective best efforts to obtain, as soon as reasonably
practicable, all permits, authorizations, consents, waivers and approvals from
third parties or governmental authorities necessary to consummate this Agreement
and the transactions contemplated hereby.
6. Closing Subject
to the satisfaction of the conditions set forth in Section 9 and Section 10
of
this Agreement, the closing of the transactions contemplated hereby
(“Closing”) shall be held at 0000 Xxxxxx Xxx., Xxxxx 000, Xxxxxxxxx, Xxxxx
Xxxxxxxx. The date upon which the Closing occurs is hereinafter referred to
as
the “Closing Date”. If by the close of business on September 30, 2006,
Closing has not occurred, then either party hereto may terminate
this
Agreement by written notice to such effect to the other party without liability
to any other party to this Agreement unless the reason for the Closing having
not occurred is (i) such party’s willful breach of this
Agreement, or (ii) , if all of the conditions to such party’s obligations set
forth in Section 7 and Section 8 of this Agreement have
been satisfied or waived in writing by the date scheduled for the Closing,
the
failure of such party to perform its obligations under this Agreement on such
date. However, any termination pursuant to this Section 6 shall not
relieve any party hereto who was responsible for Closing having not occurred
of
liability for such party’s willful breach of this Agreement or the failure of
such party to perform its obligations under this Agreement on such
date.
7. Conditions
to Obligations of Resourcing The obligations
of
Resourcing to carry out the transactions contemplated by this Agreement are
subject, at the option of the Resourcing, to the satisfaction, or waiver by
Resourcing, of the following conditions:
(a) All
warranties and representations of Pacel contained in this Agreement shall be
true and correct in all material respects as of the Closing and Pacel shall
have
performed and satisfied in all material respects all agreements and covenants
required by this Agreement to be performed or satisfied by it at or prior to
the
Closing.
(b) As
of the Closing Date, no suit, action, or other proceeding, shall be pending
or
threatened before any court or governmental agency seeking to restrain
Resourcing or prohibit the Closing or seeking damages against Resourcing as
a
result of the consummation of this Agreement.
(c) Since
the date of this Agreement and up to and including the Closing there have not
been:
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i.
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any
changes in the business, operations, prospects or financial condition
of
Resourcing that had or might have a material adverse effect on Resourcing;
or
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ii.
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any
damage, destruction or loss to Resourcing that had or might have
an
adverse effect on Resourcing.
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(d) Pacel
shall have furnished Resourcing with a copy of all necessary corporate action
on
its behalf approving Pacel’s execution, delivery and performance of this
Agreement.
(e) Resourcing
shall have received written evidence, in form and substance satisfactory to
it,
of the consent to the transactions contemplated by this Agreement of all
governmental and private third parties where the absence of any such consent
would result in a violation of law or breach or default under any agreement
to
which Resourcing is a party.
8. Conditions
to Obligations of Pacel The obligations
of
Pacel to carry out the transactions contemplated by this Agreement are subject,
at the option of the Pacel, to the satisfaction or waiver by Pacel, of the
following conditions:
(a) Resourcing
shall have furnished Pacel with copies of all necessary corporate action on
its
behalf approving the execution, delivery and performance of this
Agreement.
(b) All
warranties and representations of Resourcing contained in this Agreement shall
be true and correct in all material respects as of the Closing and Resourcing
shall have performed and satisfied in all material respects all agreements
and
covenants required by this Agreement to be performed or satisfied by it at
or
prior to the Closing.
(c) As
of the Closing Date, no suit, action, or other proceeding, shall be pending
or
threatened before any court or governmental agency seeking to restrain Pacel
or
Personnel Services or prohibit the Closing or seeking damages against Pacel
or
Personnel Services as a result of the consummation of this
Agreement.
9. Indemnification Pacel
agrees
to indemnify and hold harmless Resourcing from and against any and all damages,
liabilities, obligations, penalties, fines, judgments, claims, deficiencies,
losses, costs, expenses and assessments arising out of, resulting from or in
any
way related to (a) a breach of, or failure to perform or satisfy any of, the
warranties and representations, covenants and agreements made by Pacel in this
Agreement or in any document or certificate delivered by Pacel at the Closing,
or (b) the existence of any liabilities or obligations of Personnel Services,
other than those disclosed to Resourcing.
10. Public
Announcements Neither party
shall
issue or approve a news release or other public announcement concerning the
transactions contemplated by this Agreement without the prior written consent
of
the other as to the contents of the announcement and its release, which approval
shall not be unreasonably withheld.
11. Expenses Each
party
shall bear the costs and expenses of its own fees and expenses of professional
advisors and other costs relating to this Agreement.
12. Arbitration
Required/Mediation First Option. Any dispute or
claim
that arises out of or that relates to this agreement, or to the interpretation
or breach thereof, or to the existence, scope, or validity of this agreement
or
the arbitration agreement, shall be resolved by arbitration in accordance with
the then effective arbitration rules of American Arbitration Association.
Judgment upon the award rendered pursuant to such arbitration may be entered
in
any court having jurisdiction thereof. The parties acknowledge that
mediation usually helps parties to settle their dispute. Therefore,
any party may propose mediation whenever appropriate through the
organization named above or any other mediation process or mediator
as the parties may agree upon.
13. Binding
Effect This Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; but neither this
Agreement nor any of the rights, benefits or obligations hereunder shall be
assigned, by operation of law or otherwise, by either party hereto without
the
prior written consent of the other party, which approval shall not be
unreasonably withheld.
14. Survival
of Warranties and Representations The warranties
and
Representations of the parties as set forth in this Agreement are the
exclusive warranties and representations of the parties. All warranties and
representations, covenants and agreements by the parties to this Agreement
shall
expressly survive the Closing.
15. Governing
Law This Agreement
and
the documents and instruments delivered pursuant hereto shall be governed by
and
construed in accordance with the laws of the State of North Carolina. Each
party
hereto irrevocably submits to the jurisdiction of the court of the State of
North Carolina, in any action or proceeding arising out of or relating to this
Agreement. Each party hereto consents to service of process by any means
authorized by applicable law and waives the defense of an inconvenient form
to
the maintenance of such action or proceeding in any such court.
16. Severability The
provisions of this Agreement are severable. If any one or more provisions may
be
determined to be illegal or otherwise unenforceable, in whole or in part, the
remaining provisions, to the extent enforceable, shall nevertheless be binding
and enforceable.
17. Non-Waiver Failure
by
any party at any time to require performance of the other party of the
provisions of this Agreement shall in no way affect any party’s rights hereunder
to enforce the same, nor shall any such waiver by either party of any breach
be
held to be a waiver of any succeeding breach or waiver of this
clause.
18. Remedies The
rights and remedies provided by this Agreement are cumulative and the use of
any
one right or remedy by any party hereto shall not preclude or constitute a
waiver of its rights to use any or all other remedies. Such rights and remedies
are given in addition to any other rights and remedies a party may have by
law,
statute or otherwise.
19. Attorneys’
Fees In the event
suit or action is brought, or an arbitration proceeding is initiated, to enforce
or interpret any of the provisions of this agreement, or that arise out of
or
relate to this agreement, the prevailing party shall be entitled to reasonable
attorney’s fees in connection therewith. The determination of who is
the prevailing party and the amount of reasonable attorney's fees to be paid
to
the prevailing party shall be decided by the arbitrator(s) (with respect to
attorney's fees incurred prior to and during the arbitration proceedings) and
by
the court or courts, including any appellate court, in which such matter is
tried, heard, or decided, including a court that hears a request to compel
or
stay litigation or that hears any exceptions or objections to, or requests
to
modify, correct, or vacate, an arbitration award submitted to it for
confirmation as a judgment (with respect to attorney's fees incurred in such
court proceedings).
20. Entire
Agreement This Agreement,
together with all exhibits attached hereto, constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, by any of the parties or by any officer or
representative of any party. No amendment or modification of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby.
21. Counterparts This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which together shall constitute one and
the
same instrument
IN
WITNESS WHEREOF, the parties have executed this Agreement on the dates
indicated below.
PACEL
CORP
By:
/s/ XXXX
XXXXXXXXX
Name:
Xxxx Xxxxxxxxx
Title:
President/Chief Executive Officer
THE
RESOURCING SOLUTIONS GROUP, INC.
By:
/s/ XXXX
XXXXXXXXX
Name:
Xxxx Xxxxxxxxx
Title:
President/Chief Executive Officer
Date: April
15, 2006
Page 8
- Stock Transfer Agreement
