ASSET PURCHASE AGREEMENT
Exhibit
2.3
This
Asset Purchase Agreement ("Agreement") is made as of the 26th day of February,
2007, by and among Accountabilities, Inc., a Delaware
corporation ("Buyer") with its principal business offices located at 000 Xxxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000, and ReStaff Services,
Inc., a California corporation ("Seller") with its principal business
offices located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx X0, Xxxxxxxxx, Xxxxxxxxxx
00000 and Xxxxxx Xxxxx, an individual maintaining a business address at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxx X0, Xxxxxxxxx, Xxxxxxxxxx 00000.
WHEREAS,
the Buyer desires to purchase from the Seller, and the Seller desires to sell
to
the Buyer certain of the properties, rights, assets and business of the Seller
(the “Acquired Business”), all upon and subject to the terms and conditions
hereinafter set forth.
NOW,
THEREFORE, in consideration of the mutual promises hereinafter set forth and
for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Purchase
and Sale and Delivery of the Assets.
1.1. Purchase
and Sale and Delivery of the Assets.
(a) Purchased
Assets. Subject to and upon the terms and conditions of this
Agreement and excluding the assets retained by the Seller as set forth in
Section 1.1(b) herein, as of the “Effective Date” (as defined in Section 1.5
below), the Seller shall sell, transfer, convey, assign and deliver, to the
Buyer, and the Buyer shall purchase from the Seller, free and clear of all
liens
and encumbrances (except for Permitted Liens as defined in Section 2.8), all
of
the properties, rights, assets and business as a going concern, of every kind
and nature, real, personal or mixed, tangible or intangible, wherever located,
which are owned, leased, licensed or used by Seller in the conduct of
its business at its offices located at Fairfield, California, Napa, California,
Vicksburg, Mississippi, (the “Offices”) and which exist on the “Effective Date”
(as defined in Section 1.5 below) (collectively, the "Purchased Assets"),
including, without limitation, the following assets:
(i) all
office supplies and similar materials (the "Supplies");
(ii) all
contracts, agreements, leases, arrangements and/or commitments of any kind,
whether oral or written, relating to the Purchased Assets as set forth on
Schedule 2.12 attached hereto (the "Contracts");
(iii) all
customer lists, files, records and documents (including credit information)
relating to customers and vendors of the Purchased Assets and all other
business, financial and employee books, records, files, documents, reports
and
correspondence relating to the Purchased Assets, except to the extent required
by Sections 2.22 and 7.2(d) herein (collectively, the "Records");
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(iv) all
rights of the Seller, if any, under express or implied warranties from the
suppliers of the Seller in connection with the Purchased Assets;
(v) all
furnishings, furniture, fixtures, tools, machinery, equipment and leasehold
improvements owned by the Seller and related to the Purchased Assets, whether
or
not reflected as capital assets in the accounting records of the Seller
(collectively, the "Fixed Assets"), as set forth on Schedule 2.8;
and
(vi) all
patents, trademarks and tradenames and applications therefor which are owned
by
the Seller and related to the Purchased Assets, including, but not limited
to,
the trade name Xxxxxxxx.xxx;
(vii) all
computers, computer programs, computer databases, hardware and software owned
or
licensed by the Seller and used in connection with the Purchased
Assets;
(viii) all
municipal, state and federal franchises, licenses, authorizations and permits
of
the Seller which are necessary to operate or are related to the Purchased
Assets;
(ix) all
prepaid charges, deposits, sums and
fees of Seller relating to the Purchased
Assets;
(x) all
outstanding receivables of Seller;
(xi) all
claims and rights of Seller related to or arising from the Purchased Assets;
and
(xii) all
of the goodwill;
(xiii) all
rights in the names, Xxxxxxxx.xxx, Xxxxxxxx.xxx, Inc. and derivatives
thereof
(b) Retained
Assets. Notwithstanding anything to the contrary set forth in
this Agreement, the following assets of the Seller are not included in the
sale
of Purchased Assets contemplated hereby: (i) the cash and cash equivalents,
prepaid security deposits on Real Property Lease (as defined in Section 2.10)
and deposits or prepaid expenses related to insurance contracts, (ii) the
Purchase Price (as hereinafter defined) and the other rights of the Seller
under
or relating to this Agreement, (iii) the corporate minute books, stock records,
qualification to conduct business as a foreign corporation, and other documents
relating to the formation, maintenance or existence as a California corporation
of the Seller, except that Seller agrees that it will provide copies of any
such
document from the corporate minute books as reasonably requested by the Buyer
which the Buyer believes are necessary for the use and operation of the
Purchased Assets after the Effective Date, and (iv) motor vehicles.
1.2. Purchase
Price. The aggregate purchase price for the Purchased Assets (the
"Purchase Price") shall be Three Million Nine Hundred Thousand Dollars
($3,900,000) and shall be payable and subject to adjustment as
follows:
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(a) the
Buyer shall deliver by wire transfer or certified check Four Hundred Thousand
Dollars ($400,000) to Seller upon the execution of this Agreement;
(b) If
the Effective Date shall have occurred, Buyer shall pay by wire transfer or
certified check Three Hundred Thousand Dollars ($300,000) to Seller no later
than ninety (90) days after the date of this Agreement;
(c) On
the Effective Date, the Buyer shall deliver a note to Seller in the form
attached hereto as Exhibit A-1 (the “$300,000 Note”) which shall provide that
(i) if the Buyer raises $2,500,000 or more in a private offering of securities
within the 90 day period following the date of this Agreement, then Buyer shall
pay by wire transfer or Buyer check Three Hundred Thousand Dollars ($300,000)
to
Seller within such 90 day period and (ii) if the Buyer does not raise $2,500,000
or more in a private offering of securities within the 90 day period following
the date of this Agreement, Buyer shall pay by wire transfer or certified check
Three Hundred Thousand Dollars ($300,000) to Seller together with interest
thereon at the rate of six percent (6%) per annum no later than the twenty-four
month (24) anniversary of the date of this Agreement;
(d) On
the Effective Date, the Buyer shall execute and deliver a promissory note,
in
the principal amount of Two Million Nine Hundred Thousand Dollars ($2,900,000)
in the form attached hereto as Exhibit A-2 (the “Note”). The Note
shall bear interest at 6% per annum and shall be payable in forty eight equal
monthly installments, with the first installment payable on the 121st day after
the
Effective Date. The principal amount of the Note should be subject to
proportionate reduction in accordance with the terms of the Note if the Net
Income (as defined below) of the Acquired Business is less than $1,000,000
in
any calendar year in which the Note is outstanding. The Note shall be
subordinated to the Buyer’s present and future bank and other financial
institution debt and the debt listed on Schedule 1.2(a) hereof, but shall rank
senior to all future acquisition indebtedness and shall rank no worse than
pari
pasau with all other future indebtedness of the Buyer. The term “Net
Income” shall mean the gross revenues less (i) cost of sales (which shall
include temporary employee wages, payroll taxes and worker’s compensation
expense) and (ii) operating expenses of the Acquired Business (including
interest charges but excluding any allocation of corporate overhead not related
to the Acquired Business);
(e) If
the net income of the Seller reflected on the audited income statement of Seller
(containing mutually agreed upon recast numbers) for the year ended December
31,
2006 is less than One Million Three Hundred Fifty Thousand Dollars ($1,350,000),
then the Three Million Nine Hundred Thousand Dollars ($3,900,000) Purchase
Price
shall be reduced to an amount determined by multiplying $3,900,000 by a
fraction, the numerator of which will be the actual net income reflected on
such
audited income statement and the denominator of which shall be
$1,350,000. Any reduction of the Purchase Price may be applied by
Buyer to any payment of Purchase Price remaining due and payable under this
Agreement;
(f) No
later than ninety (90) days after the Effective Date Buyer shall deliver ca
certificate representing 500,000 shares of Buyer common stock issued in the
name
of Xxxxxx
Xxxxx, which shares shall vest in equal annual installments over a three year
vesting period commencing upon the Effective Date.
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(g) The
parties hereto acknowledge and agree that in the event of the termination of
this Agreement after a material breach by Seller, the damages of Buyer will
be
uncertain and difficult and impossible to calculate. As a result, as
liquidated damages and not a penalty , if this Agreement shall have been
terminated prior to the Effective Date by (i) Buyer by reason of a material
breach of Seller or (ii) if Seller shall have ceased to use its reasonable
efforts to effect the timely consummation of this Agreement, by Seller for
any
reason other than breach by Buyer, Seller shall pay to Buyer by wire transfer
or
Seller check no later than thirty (30) days after such termination the sum
of
One Million Dollars ($1,000,000).
1.3. Assumption
of Liabilities.
(a) Assumed
Liabilities. Effective as of the Effective Date, the Buyer agrees
to assume and to pay, perform and discharge all liabilities and obligations
arising under the Contracts on and after the Effective Date and with respect
to
the use and operation of the Purchased Assets by the Buyer after the Effective
Date, and also agrees to assume all Seller’s debt to its secured lender AGR
Financial and as set forth on Schedule 1.3 hereto (the “Assumed
Liabilities”). To the extent that any personal property included as
part of the Purchased Assets is leased by Seller as of the Effective Date and
the Buyer and Seller agree that the lease agreement cannot be formally assigned
to the Buyer, the Buyer will thereafter pay the rental charge or lease payment
for same to the Seller, and the Seller shall be required to make such payments
directly to the Lessor. If at any time, Seller, in its sole
discretion, chooses to pay off the lease liability of any such asset in one
lump
sum, Buyer shall reimburse Seller for such payment and title to such asset
shall
pass to Buyer.
(b) Liabilities
Retained by the Buyer. Except for the Assumed Liabilities, the Buyer shall
not assume, be liable for or pay, and none of the Purchased Assets shall be
subject to, and the Seller shall retain, be unconditionally liable for and
pay,
any liability or obligation (whether known or unknown, matured or unmatured,
stated or unstated, recorded or unrecorded, fixed or contingent, currently
existing or hereafter arising) of the Seller, without limitation, the
following:
(i) any
obligation or liability of Seller arising out of this Agreement, any agreement
entered into in connection herewith or the transactions contemplated hereby
or
thereby;
(ii) except
as otherwise provided herein, any obligation or liability of Seller for the
fees
and expenses of its counsel, accountants and other experts and all other
expenses incurred by Seller incident to the negotiation, preparation and
execution of this Agreement and any agreement entered into in connection
herewith and the performance by Seller of its obligations hereunder or
thereunder;
(iii) except
as otherwise provided herein, any obligation or liability of Seller and its
directors, officers, employees, consultants and other representatives,
arising
out of or resulting from any business, activity, course of conduct, action
or
omission before, on or after the Effective Date;
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(iv) all
accounts payable of the Seller (other than as set forth on Schedule 1.3
hereto);
(v) any
liability or obligation under or in connection with the Retained
Assets.
(vi) any
federal, state, local or other foreign tax payable by the Seller whether such
tax is due and payable prior to or after the Effective Date;
(vii) any
indebtedness of the Seller for borrowed money;
(viii) all
liabilities of the Seller with respect to any claim, litigation or proceeding
accruing with respect to, or arising from or relating to any business, activity,
course of conduct, action or omission before, on or after the Effective Date,
including, without limitation, those matters set forth on Schedule 2.9, whether
such claim, litigation or proceeding is presented or instituted prior to or
after the Effective Date;
(ix) all
liabilities, obligations, payments, benefits, costs and expenses including,
without limitation, any salary, wage, vacation, bonus, severance, expense
reimbursement or other benefit: (a) accruing and payable to staff and
part-time employees of the Seller who become employed by the Buyer after
the Effective Date with respect to any period before the Effective Date as
set
forth in Schedule 1.3 attached hereto, (b) accruing and payable to all other
employees of the Seller with respect to any period before or after the Effective
Date, (c) accruing and payable to all former employees of the Seller whose
employment terminated before the Effective Date, (d) accruing and payable
pursuant to any employee benefit plans (including pension plans) of the Seller
or under federal and state laws governing such plans, whether before or after
the Effective Date, including, without limitation, in connection with the
termination of participation under such plan by a staff or part-time employee;
or (e) accruing and payable in connection with the termination of any such
employee benefit plan of the Seller, whether before or after the Effective
Date.
(x) all
warranty liability of the Seller, including without limitation, for claims
which
arise prior to the Effective Date, whether such claims are presented prior
to or
after the Effective Date.
1.4. Other
Agreements. As further consideration for the transactions
contemplated hereby, the Seller (a) will enter into a Non-Competition Agreement
attached hereto as Exhibit B-1, and (b) shall cause Xx. Xxxxxx Xxxxx
(“Xx. Xxxxx”), to enter into a Non-Solicitation Agreement, as attached hereto as
Exhibit B-2.
1.5. Closing. The
closing (the “Closing”) shall take place at the offices of the Seller in
Fairfield, California, at 3:00 PM Pacific Time, on a date (the
“Effective Date” or “Closing Date”) selected by the Buyer which shall in no
event be more than ninety (90) days after the date of this
Agreement. Buyer shall advise Seller of the Closing Date by written
notice delivered to Seller no later than five (5) days prior to the Effective
Date. At the Closing the parties
will exchange facsimile executed documents and they will promptly send each
other original signature pages by overnight mail.
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1.6. Allocation
of Purchase Price. The Purchase Price shall be allocated among
the various Purchased Assets by mutual agreement of the parties as set forth
on
Schedule 1.6 and such allocations shall include amounts allocable to Seller
and
Xx. Xxxxx, under the Non-Competition and Non-Solicitation Agreements referenced
in Section 1.4 of this Agreement. The parties covenant and agree with
each other that this allocation was arrived at by arm’s length negotiation and
that none of them will take a position on any income tax return, before any
governmental agency charged with the collection of any income tax or in any
judicial proceeding that is in any manner inconsistent with the terms of this
Section 1.6 without the written consent of the other parties to this
Agreement. Each of Buyer and Seller covenant and agree to execute and
timely file U.S. Treasury Form 8594 consistent with Schedule 1.6, and upon
a
party’s reasonable request the other party shall execute and file such other
documents as may be necessary to document such allocation.
2. Representations
of the Seller. The Seller and, with respect only to Section 2.11,
Xx. Xxxxx, jointly and severally represent and warrant to the Buyer as
follows:
2.1. Organization. The
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of California. The Seller is not required
to be qualified or licensed to do business as a foreign corporation or other
organization in any other jurisdiction, except such jurisdictions, if any,
in
which the failure to be so qualified or licensed will not have a material
adverse effect on the conduct of its business or use of any of its properties
or
assets. The Seller has delivered to the Buyer complete and correct
copies of the Seller’s Articles of Incorporation and By-Laws as in effect on the
date hereof. The Seller is not in default under or in violation of
any provision of its Articles of Incorporation or By-Laws. The Seller
has all requisite power and authority (corporate and other) to execute and
deliver this Agreement and the documents, instruments and agreements
contemplated herein, and to consummate the transactions contemplated hereby
and
thereby.
2.2. Affiliates
and Other Equity Investments. The Seller does not own, directly
or indirectly, any shares of capital stock of any corporation or any equity
investment in any partnership, limited liability company, association or other
business organization.
2.3. Authorization. The
Seller has the power to enter into this Agreement and to carry out its
obligations hereunder. The execution, delivery and performance of
this Agreement, and the agreements provided for herein by the Seller, and the
consummation by the Seller of all transactions contemplated hereby and thereby,
have been duly authorized by all requisite entity action. This
Agreement and all such other agreements and obligations entered into and
undertaken in connection with the transactions contemplated hereby to which
the
Seller is a party constitute the valid and legally binding obligations of the
Seller, enforceable against the Seller in accordance with their respective
terms, except as the same may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and general equitable principles, regardless of
whether such enforceability is considered in a proceeding at law or in
equity.
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2.4. No
Violation. Except as set forth in Schedule 2.4, neither the
execution, delivery or performance of this Agreement and the agreements provided
for herein, nor the consummation of any of the transactions contemplated hereby
or thereby (i) will violate or conflict with the Articles of Incorporation
or
By-Laws of Seller, or (ii) conflict with, result in any breach of, constitute
(with or without due notice or lapse of time or both) a default under, or result
in the acceleration of, create in any party the right to accelerate, terminate,
modify or cancel, or require notice, consent or waiver under any provision
of
any contract or agreement of any kind to which the Seller is a party or by
which
the Seller is bound (including, without limitation, the Contracts) or to which
any property or asset (including, without limitation, the Purchased Assets)
of
any of them is subject, (iii) is prohibited by or requires the Seller to obtain
or make any consent, authorization, approval, registration or filing under
any
statute, law, ordinance, regulation, rule, judgment, decree or order of any
court or governmental agency, board, bureau, body, department or authority,
(iv)
will cause any acceleration of maturity of any note, instrument or other
obligation to which Seller is a party or by which Seller
is bound or with respect to which Seller is an obligor or guarantor, or (v)
will
result in the creation or imposition of any lien, claim, charge, restriction,
equity or encumbrance of any kind whatsoever upon or give to any other person
any interest or right (including any right of termination or cancellation)
in or
with respect to any of the properties, assets (including, without limitation,
the Purchased Assets), business, agreements or contracts (including, without
limitation, the Contracts) of Seller.
2.5. Financial
Statements. Seller has delivered to Buyer unaudited compilation
financial statements, for the annual period ended December 31, 2006, for the
Seller’s operations as a whole. Such financial statements fairly
present the financial position of Seller as of the date thereof and the results
of its operations and cash flows for the period indicated.
2.6. No
Undisclosed Liabilities. Since December 31, 2006, except for the
transactions contemplated by this Agreement and except as set forth in Schedule
2.6, Seller has not incurred any material liability or obligation (absolute,
accrued, contingent or otherwise) of any nature, other than liabilities and
obligations incurred in the ordinary course of business.
2.7. Absence
of Certain Changes. Since December 31, 2006, except for the
execution and delivery of this Agreement and except as set forth in Schedule
2.7, Seller has not (i) had any change in its condition (financial or
otherwise), operations (present or prospective), business (present or
prospective), assets or liabilities, other than changes in the ordinary course
of business, none of which has been materially adverse; (ii) incurred or agreed
to incur any indebtedness for borrowed money; (iii) paid or obligated itself
to
pay in excess of ten thousand dollars ($10,000) in the aggregate for Fixed
Assets; (iv) suffered any substantial loss or waived any substantial right;
(v)
agreed to sell, transfer or otherwise dispose any of the Purchased Assets;
(vi)
mortgaged, pledged or subjected to any charge, lien, claim or encumbrance,
or
agreed to mortgage, pledge or subject to any charge, lien, claim or encumbrance,
any of the Purchased Assets; (vii) made or permitted any material amendment
or
termination of any Contract, license or permit to which it is a party other
than
in the ordinary course of business; (viii) experienced any shortage or
difficulty in obtaining qualified personnel to meet customer orders, demands
and
requirements; (ix) made any change in its accounting methods or practices with
respect to its condition, operations, business, properties, assets or
liabilities; or (x) entered into any transaction not in the ordinary course
of
the business.
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2.8. Title;
Ownership, Condition and Adequacy of the Assets. Except with
respect to Purchased Assets that are leased and except as set forth in Schedule
2.8, Seller has good and marketable title to all of its respective properties
and assets included in the Purchased Assets, and valid leasehold interests
in
all such Purchased Assets leased by it under any personal property lease, in
each case free and clear and not subject to any mortgage, pledge, conditional
sales contract, lien, security interest, right of possession in favor of any
third party, claim or other encumbrance, except for Permitted
Liens. The Fixed Assets are in good operating condition and repair,
subject only to the ordinary wear and tear. Schedule 2.8 sets forth
an accurate, correct and complete list of all of the Fixed Assets owned or
used
by the Seller with respect to the Purchased Assets. As used herein,
the term “Permitted Liens” means (i) carrier’s, warehousemen’s, mechanic’s,
materialmen’s, repairmen’s or other like liens or encumbrances arising in the
ordinary course of business which are not overdue for a period of more than
thirty (30) days or which are being contested in good faith and by appropriate
proceedings, if adequate reserves with respect thereto are maintained on the
books of Seller; and (ii) those liens or encumbrances described on Schedule
2.8
attached hereto, if any.
2.9. Litigation. Except
as set forth in Schedule 2.9, there are no actions, suits, proceedings or
investigations, either at law or in equity, or before any commission or other
administrative authority in any United States or foreign jurisdiction, of any
kind now pending or, to the best of Seller's knowledge, threatened involving
Seller that (i) if asserted and decided adversely to Seller, could materially
and adversely affect the use or operations of the Purchased Assets (in a manner
consistent with Seller’s past practices), or (ii) questions the validity of this
Agreement or the other agreements to be entered into in connection herewith,
or
(iii) seeks to delay, prohibit or restrict in any manner any action taken or
contemplated to be taken by the Seller under this Agreement or the other
agreements to be entered into in connection herewith. Except as set
forth in Schedule 2.9, there is no arbitration proceeding pending or, to
Seller’s knowledge, threatened or proposed in any manner under any collective
bargaining agreement or other agreement or otherwise. Neither Seller
nor any of the Purchased Assets are subject to any judicial or administrative
judgment, order, decree or restraint.
2.10. Real
Property; Leases. Seller does not own any real property used in
connection with the Purchased Assets. Schedule 2.10 attached hereto
sets forth a true, correct and complete list as of the date hereof of all leases
of real property to which the Seller is a party in connection with the Purchased
Assets (collectively, the "Real Property Leases"). Except as set
forth on Schedule 2.10, true, correct and complete copies of the Real Property
Leases, and all amendments and modifications thereof, have previously been
delivered by the Seller to the Buyer. The Real Property Leases have not been
modified or amended since the date of delivery to the Buyer. No party
to any Real Property Lease has sent written notice to the other claiming that
such other party is in default thereunder, which alleged default remains
uncured.
2.11. Tax
Matters. All federal, state, local and foreign tax and
information returns required to have been filed prior to the date of this
Agreement by Seller have been duly filed, and each such return correctly
reflects the income, franchise or other tax liability and all other information
required to be reported thereon, and the Seller has paid or accrued all income,
franchise and other taxes due by it as reflected on said
returns. There are not pending, nor to the knowledge of Seller,
threatened, any audits, examinations, investigations or other proceedings in
respect
of taxes or tax matters and there are not, to the knowledge of Seller, any
unresolved questions or claims concerning Seller's tax liability.
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2.12. Contracts. Schedule
2.12 contains a true and complete list of all Contracts. The Seller
has made available to the Buyer a true and complete copy of each such written
Contract and a true, correct and complete written description of each such
oral
Contract. Except as set forth as Schedule 2.12, neither the Seller,
nor, to the knowledge of the Seller, any other party, is in default under or
in
breach or in violation of any Contract, nor has an event occurred that (with
or
without notice, lapse of time, or both) would constitute a default, breach
or
violation by the Seller, or, to the knowledge of the Seller, by any other party,
under any Contract.
2.13. Compliance
with Agreements and Laws. Except as set forth in Schedule 2.15,
Seller has complied in all material respects with all federal, state, local
and
foreign statutes, laws, ordinances, regulations, rules, permits, judgments,
orders or decrees applicable to it, and to Seller’s knowledge there does not
exist any basis for any claim of default under or violation of any such statute,
law, ordinance, regulation, rule, judgment, order or decree except such defaults
or violations, if any, that in the aggregate do not and will not materially
and
adversely affect the Purchased Assets or the operation, financial condition
or
prospects of the Purchased Assets.
2.14. Governmental
Authorizations and Regulations. Schedule 2.14 lists all licenses,
franchises, permits and other governmental authorizations held by Seller
material to the use of the Purchased Assets. Such licenses,
franchises, permits and other governmental authorizations are valid, and Seller
has not received any notice that any governmental authority intends to cancel,
terminate or not renew any such license, franchise, permit or other governmental
authorization. Except as set forth on Schedule 2.14, Seller holds all
licenses, franchises, permits and other governmental authorizations, the absence
of any of which could have a material adverse effect on the use of the Purchased
Assets.
2.15. Accounting
Practices. The books and accounts of Seller are complete and
correct, and fully and fairly reflect the assets and transactions of the
Company.
2.16. Shareholders. Xxxxxxxx.xxx
is the sole shareholder of Seller, and Xxxxxx Xxxxx is the sole
shareholder of Xxxxxxxx.xxx.
2.17. Insurance. Schedule
2.17 contains a true and complete list of all policies of fire, liability,
workers' compensation and other forms of insurance owned by or held by Seller,
and Seller has made available for inspection by the Buyer true and complete
copies of all of such policies. All such policies are in full force
and effect, all premiums with respect thereto covering all periods to the date
of this Agreement have been paid, and no notice of cancellation or termination
has been received with respect to any such policy. Except as set
forth in Schedule 2.17, such policies (i) are sufficient for compliance with
all
requirements of law and all agreements to which Seller is a party, (ii) are
valid, outstanding and enforceable policies, (iii) will remain in full force
and
effect through the Effective Date, and (iv) will not in any way be affected
by,
or terminate or lapse by reason of, the transactions contemplated by this
Agreement. Except as set forth in Schedule 2.17, Seller has not made
any material claims under such insurance policies.
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2.18. Labor
Matters. Seller is not the subject of any proceeding asserting
that it has committed an unfair labor practice or is seeking to compel it to
bargain with any labor union or labor organization nor is there pending or,
to
the Seller’s knowledge, threatened, nor has there been for the past five years,
any labor strike, dispute, walkout, work stoppage, slow-down or lockout
involving it.
2.19. Intellectual
Property Rights. Schedule 2.19 contains an accurate and complete
description of all domestic and foreign patents, trademarks, trademark
registration, service marks, service marks registration, logos, trade names,
assumed names, copyrights and copyright registrations and all applications
therefor, presently owned or held by Seller or under which Seller owns or holds
any license, or in which Seller owns or holds any direct or indirect interest,
and no others are necessary for the use of the Purchased Assets. To
the knowledge of Seller, no products sold or services provided by Seller, nor
any patents, formulae, know-how, secrets, trademarks, trademark registrations,
service marks, service marks registration, logos, trade names, assumed names,
copyrights, copyright registrations, or designation used or licensed for use
in
connection with the Purchased Assets, infringe on any patents, trademarks,
licenses, or copyrights, or any other rights, of any person. Seller
is the sole owner of, has the sole and exclusive right to use, has the right
and
power to sell, and has taken all reasonable measures to maintain and protect,
the patents, trademarks, trademark registrations, logos, trade names, assumed
names, copyrights, copyright registrations, service marks and service xxxx
registrations listed in Schedule 2.19. Except as set forth in
Schedule 2.19, no claims have been asserted against Seller in writing by any
person and received by it challenging the use of any such patents, trademarks,
trademark registrations, service marks, service xxxx registrations, logos,
trade
names, assumed names, copyrights and copyright registrations or challenging
or
questioning the validity or effectiveness of any such license or agreement,
or
the use of any formula, know-how or secrets used in connection with the
Purchased Assets and, to the knowledge of the Seller, there is no valid basis
for any such claim. Except as set forth in Schedule 2.19, to Seller’s
knowledge, no other party is infringing on the patents, trademarks,
trademark registrations, logos, tradenames, assumed names, copyrights copyright
registrations, service marks and service xxxx registrations listed in Schedule
2.19.
2.20. Receivables. Seller
has delivered to Buyer a true and complete aging report of Seller’s accounts
receivable as of December 31, 2006.
2.21. Employees. Schedule
2.21 contains a complete list of the name, position, and salary, of all staff
employees of Seller, including persons who are temporarily absent from active
employment by Seller. Seller has no employment agreement,
patent disclosure agreement, non-compete agreement, or any other written
contract or agreement relating to the right of any such staff employee to be
employed by Seller. To the knowledge and belief of Seller, no staff
employee has any present intention of terminating his or her employment with
the
Seller, and Seller has no present intention of terminating such
employment.
2.22. ERISA. The
only employee benefit plans of Seller are group medical and dental insurance
policies.
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2.23. Customers. The
accounts receivable aging report delivered pursuant to Section 2.23 lists all
current customers of the Seller. Except as set forth in Schedule 2.23
the Seller
has not received any written threat or written notice that any one or more
customers who in the aggregate purchased goods or services in excess of $10,000
from it during the twelve months ended December 31, 2004 intends to discontinue
or to reduce significantly purchases of such goods or services or default under
or terminate any Contract whether as a result of the transactions contemplated
by this Agreement or otherwise and the Seller has not received any written
notice of, nor is it aware of any basis for, any material dispute between any
such customer and the Seller, whether with respect to payment due, workmanship
or otherwise.
2.24. No
Untrue Statements. No statement by Seller contained in this
Agreement and no written statement contained in any certificate or other
document required to be furnished by Seller, or any officer, or other agent
of
Seller to Buyer pursuant to this Agreement, contains or will contain any untrue
statement of a material fact, or omits or will omit to state a material fact
necessary in order to make the statements therein contained not
misleading.
3. Representations
of the Buyer. The Buyer represents and warrants to the Seller as
follows:
3.1. Organization
and Authority. The Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and has
requisite power and authority (corporate and other) to own its properties and
to
carry on its business as now being conducted. The Buyer has full
power to execute and deliver this Agreement and all other documents, instruments
and agreements to be delivered by it hereunder and to consummate the
transactions contemplated hereby and thereby. The Buyer has delivered
to the Seller complete and correct copies of the Buyer’s Articles of
Incorporation and By-Laws as in effect on the date hereof. The Buyer
is not in default under or in violation of any provision of its Articles of
Incorporation or By-Laws. The Buyer has all requisite power and
authority (corporate and other) to execute and deliver this Agreement and the
documents, instruments and agreements contemplated herein, and to consummate
the
transactions contemplated hereby and thereby.
3.2. Authorization. The
execution and delivery of this Agreement by the Buyer, and the agreements
provided for herein, and the consummation by the Buyer of all transactions
contemplated hereby and thereby, have been duly authorized by all requisite
corporate action. This Agreement and all such other agreements and
written obligations entered into and undertaken in connection with the
transactions contemplated hereby constitute the valid and legally binding
obligations of the Buyer, enforceable against it in accordance with their
respective terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors’ rights generally and general equitable principles, regardless of
whether such enforceability is considered in a proceeding at law or in
equity.
3.3. No
Violation. The execution, delivery and performance of this
Agreement and the agreements provided for herein, and the consummation by the
Buyer of the transactions contemplated hereby and thereby, will not, with or
without the giving of notice or the passage of time or both, (a) violate the
provisions of any law, rule or regulation applicable to the Buyer; (b) violate
the provisions of the Buyer's Articles of Incorporation or By-Laws; (c) violate
any judgment, decree, order or award of any court, governmental body or
arbitrator; or (d) conflict with
or
result in the breach or termination of any term of provision of, or constitute
a
default under, or cause any acceleration under, or cause the creation of any
lien, charge or encumbrance upon the properties or assets of the Buyer pursuant
to, any indenture, mortgage, deed of trust or other agreement or instrument
to
which it or its properties is a party or by which the Buyer is or may be
bound.
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3.4. Consents. Except
for the consent of the Buyer’s Lender, Action Capital, and the Seller’s Lender,
Resource Funding Group, no consent, approval, authorization or other action
by,
or filing with, any governmental authority or any third party is required in
connection with the execution, delivery and performance by the Buyer of its
obligations under this Agreement and the agreements provided for herein, and
the
consummation by the Buyer and the Seller of the transactions contemplated
hereby.
3.5. Litigation. No
action, investigation, audit, review, claim, suit or proceeding by any
governmental authority or third party is pending or, to the knowledge of the
Buyer, threatened against the Buyer which seeks to delay or prevent the
consummation of the transactions contemplated by this Agreement, or which may
adversely affect or restrict the Buyer’s ability to consummate the transactions
contemplated hereby. The Buyer is not bound by any outstanding
judgment, order, injunction or decree of any governmental authority or any
third
party which would prevent the Buyer from consummating the transactions
contemplated by this Agreement.
3.6. Brokers. Except
for Pylon Management, Inc. (“Pylon”), with offices located at 000 Xxxxx Xxxx,
Xxxxx 000, Xxxxxxxxx, Xxx Xxxxxx 00000, all negotiations relative to this
Agreement and the transactions contemplated hereby have been carried on by
Buyer
directly with Seller and without the intervention of any other person and in
such manner as not to give rise to any valid claim against any of the parties
for any finder's fee, brokerage commission or like payment.
3.7. No
Untrue Statements. No statement by the Buyer contained in this
Agreement and no written statement contained in any certificate or other
document required to be furnished by any officer, or other agent of Buyer to
Seller pursuant to this Agreement, contains or will contain any untrue statement
of a material fact, or omits or will omit to state a material fact necessary
in
order to make the statements therein contained not misleading.
4. Closing
Deliveries.
4.1. By
Seller. The Seller shall deliver to the Buyer at the Closing or,
if so indicated, on the Effective Date, each of the following
documents:
(a) this
Agreement, duly executed by Seller and Xx. Xxxxx;
(b) a
Xxxx of Sale (Exhibit G), duly executed by Seller;
(c) an
Assignment and Assumption of Contracts and Liabilities executed by the Seller
evidencing the Seller's assignment and the Buyer's assumption of the Assumed
Liabilities contemplated by Section 1.3 hereof (Exhibit D) (the
"Assignment and Assumption Agreement");
12
(d) the
Non-Competition and Non-Solicitation Agreements in the form attached hereto
as
Exhibits B-1 and B-2, respectively, duly executed by Seller and Xx.
Xxxxx, respectively;
(e) the
Records, on the Effective Date;
(f) copies
of the general ledgers and books of account of the Seller pertaining to the
Purchased Assets for the period December 31, 2004, to the Effective
Date, on the Effective Date.
(g) cross
receipt executed by the Seller (Exhibit F), ("Cross
Receipt");
(h) a
certificate executed by the Chief Executive Officer of the Seller that all
representations and warranties made herein by Seller are true and correct and
that all terms, conditions and provisions of this Agreement have been performed
and complied with at the time of Closing;
(i) a
certificate from the secretary of the Seller attesting to the accuracy of
resolutions to be attached thereto approved by the Board of Directors and the
shareholders of the Seller authorizing the sale of the Purchased Assets and
providing incumbency information for the individual signing this Agreement
on
behalf of the Seller;
(j) such
certificates or other documents as may be reasonably requested by Buyer,
including, without limitation, certificates of legal existence, good standing
and certified charter documents from the Secretary of State of California,
and
certificates of the Chief Executive Officer/Members of the Seller with respect
to minutes, resolutions, by-laws and any other relevant matters concerning
the
Seller in connection with the transactions contemplated by this
Agreement;
(k) the
Employment Agreement between Buyer and Xx. Xxxxx in the form annexed hereto
as
Exhibit C (the “Employment Agreement”) duly executed by Xx.
Xxxxx;
4.2. By
the Buyer. The Buyer shall deliver to the Seller at the Closing
or, if so indicated, on the Effective Date, each of the following
documents:
(a) this
Agreement, executed by the Buyer;
(b) the
Assignment and Assumption Agreement, executed by Buyer (Exhibit
D);
(c) the $300,000
Note (Exhibit A-1), executed by the Buyer;
(d) the
$2,900,000 Note (Exhibit A-2), executed by Buyer;
(e) the
Cross Receipt (Exhibit F), executed by the Buyer;
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(f) a
certificate executed by the President of the Buyer that all representations
and
warranties made herein are true and correct and that all terms, conditions
and
provisions of this Agreement have been performed and complied with at the time
of Closing;
(g) a
certificate of the secretary of the Buyer authorizing the purchase of the
Purchased Assets and providing incumbency information for the individual signing
this Agreement on behalf of the Buyer;
(h) such
certificates or other documents as may be reasonably requested by Seller,
including, without limitation, certificates of legal existence, good standing
and certified charter documents from the Secretary of State of California,
and
certificates of an officer of the Buyer with respect to directors’ resolutions,
by-laws and other matters;
(i) A
UCC-3 Termination Statement from Seller’s Lender, AGR Financial;
(j) A
payoff letter in favor of Seller’s Lender, AGR Financial;
(k) The
Employment Agreement between Buyer and Xxxxxx Xxxxx duly executed by Buyer
(Exhibit C);
(l) certificate
representing 500,000 shares of Buyer’s common stock issued in the name of Xx.
Xxxxx.
(i)
(ii)
a
5. Indemnification.
5.1. Survival
of Representations. Except for the representations in Sections
2.9 and 2.11 which shall survive three (3) years after the Effective Date,
all
representations and warranties made by the parties herein or in any instrument
or document furnished in connection herewith shall survive for a period of
one
(1) year (or the date of final payment on the Note, whichever is sooner),
following the Effective Date and any investigation at any time made by or on
behalf of the parties hereto.
5.2. By
the Seller. The Seller hereby agrees to indemnify and hold
harmless each of the Buyer, its affiliates and their respective directors,
officers, employees, agents, representatives and successors (the
“Buyer Indemnitees”) from and against any and all actions, claims, liabilities
(whether known or unknown, matured or unmatured, stated or unstated, fixed
or
contingent), obligations, damages of any kind (including, without limitation,
general, special, incidental and consequential damages), judgments, liens,
injunctions, charges, orders, decrees, rulings, demands, losses, dues,
assessments, taxes, fines, fees, penalties, amounts paid in settlement, costs
or
expenses (including, without limitation, reasonable attorney's and expert fees
and expenses in connection with investigating, defending or settling any action
or threatened action) (each, a “Loss” and collectively, “Losses”) that any of
the Buyer Indemnitees may incur, or to which it, he or she may become subject,
arising out of, resulting from or relating to:
14
(i) any
misrepresentation or breach of any warranty of Seller or Xx. Xxxxx contained
in
this Agreement or in any schedule of Seller or any certificate delivered by
Seller pursuant to this Agreement;
(ii) any
breach of any covenant of Seller contained in this Agreement;
(iii) any
debt, liability or obligation of Seller other than the Assumed Liabilities;
and
(iv) the
operations of the Purchased Assets prior to the Effective Date.
5.3. By
the Buyer. The Buyer shall indemnify and hold harmless the Seller
and Xx. Xxxxx and their respective directors, officers, shareholders, employees,
agents, representatives and successors (the “Seller Indemnitees”) from and
against any and all Losses that any of the Seller Indemnitees may incur, or
to
which it, he or she may become subject, arising out of, resulting from or
relating to:
(i) any
misrepresentation or breach of warranty of Buyer contained in this Agreement
or
in any schedule of Buyer or in any certificate delivered by
Buyer pursuant to this Agreement;
(ii) any
breach of any covenant of Buyer contained in this Agreement;
(iii) any
of the Assumed Liabilities;
(iv) the
use or operation of the Purchased Assets after the Effective Date;
and
(v) the
failure to obtain any of the Real Property Lease consents and releases described
in Section 7.5.
5.4. Reduction
for Insurance Proceeds. To the extent that any Buyer Indemnitee
or Seller Indemnitee shall receive payment under any insurance policies on
account of claims arising under Section 5.2 or Section 5.3 hereof, the amount
(if any) payable by the indemnifying party on account of such claims shall
be
reduced by the amount of such payment or, if the Buyer Indemnitee or Seller
Indemnitee shall have already collected on such claims from the indemnifying
party, then the Buyer Indemnitee or Seller Indemnitee shall repay to the
indemnifying party the amount of such payment.
5.5. Procedure
for Indemnification Claims. For purposes of this Agreement, each
of Seller, Xx. Xxxxx and Buyer may be referred to as an “Indemnifying Party” in
connection with their indemnification obligations herewith. For
purposes of this Agreement, Buyer Indemnitees and Seller Indemnitees may be
referred to individually as an “Indemnitee” or collectively as
“Indemnitees.” The procedures to be followed with respect to
indemnification claims based upon or arising out of any claim, action or
proceeding by any person not a party to this Agreement, shall be as
follows:
15
(a) If
an Indemnitee believes that it has suffered or incurred any Loss, such
Indemnitee shall so notify the Indemnifying Party promptly in writing describing
such Loss, the amount thereof, if known, and the method of computation of such
Loss, all with reasonable particularity and containing a reference to the
provisions of this Agreement or other agreement, instrument or certificate
delivered pursuant hereto in respect of which such Loss shall have
occurred. In the event that any claim or demand in respect of which
an Indemnitee may seek recovery of a Loss under this Section 5 is asserted
against or sought to be collected from such Indemnitee by a third party, the
Indemnitee shall notify the Indemnifying Party promptly in writing as soon
as
practicable but in any event within 30 days following receipt of notice of
such
third party claim or demand.
(b) Unless
in the reasonable judgment of Indemnitee (i) there is a conflict between the
positions of the Indemnifying Party and the Indemnitee in conducting the defense
of such claim or (ii) legitimate business considerations would require the
Indemnitee to defend or respond to such claim in a manner different from that
recommended by the Indemnifying Party, the Indemnifying Party shall, by giving
notice thereof to the Indemnitee confirming the Indemnifying Party’s obligation
under this Section 5 to indemnify the Indemnitee in respect of such claim,
be
entitled to assume and control such defense with counsel chosen by
it. The Indemnitee shall be entitled to participate therein after
such assumption, but the costs of such participation (other than the costs
of
providing witnesses or documents at the request of the Indemnifying Party or
in
response to legal process) following such assumption shall be at the expense
of
the Indemnitee. Upon assuming such defense, the Indemnifying Party
shall have full right to enter into any compromise or settlement which is
dispositive of the matter involved; provided that except for the settlement
of a
claim that involves no obligation of the Indemnitee other than the payment
of
money for which indemnification is provided hereunder, the Indemnifying Party
shall not settle or compromise any claim without the prior written consent
of
the Indemnitee, which consent will not be unreasonably withheld; and provided,
further, the Indemnifying Party may not consent to entry of any judgment or
enter into any settlement in respect of a claim which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to the
Indemnitee of a release from all liability in respect of such
claim.
(c) With
respect to a claim as to which the Indemnifying Party (i) does not have the
right to assume the defense under Section (b) or (ii) shall not have exercised
its right to assume the defense, the Indemnitee shall assume and control the
defense of and contest such claim with counsel chosen by it and the Indemnifying
Party shall be obligated to pay all reasonable attorneys’ fees and expenses of
the Indemnitee incurred in connection with such defense. The
Indemnifying Party shall be entitled to participate in the defense of such
claim, but the cost of such participation shall be at its own
expense. Notwithstanding the foregoing, the Indemnitee shall not be
required to defend any claim under this Section (c) unless the Indemnifying
Party confirms its obligation under this Section 5 to indemnify the Indemnitee
in respect of such claim by written notice to the Indemnitee. If the
Indemnitee is not required to defend any claim under the immediately preceding
sentence, it shall owe no duties to the Indemnifying Party with respect to
such
claim and may defend, fail to defend or settle such claim without affecting
its
right to indemnity hereunder.
(d) If
the Indemnitee assumes the defense of a claim pursuant to Section (c) above,
the
Indemnitee may compromise or settle any claim against it at any time; provided,
however, that the Indemnitee shall not settle or compromise any claim without
the prior written consent of the Indemnifying Party, which consent will not
be
unreasonably withheld; provided, further, that if in the reasonable judgment
of
the Indemnitee it would be materially harmed or otherwise prejudiced by not
entering into a proposed settlement or compromise and the Indemnifying Party
withholds consent to such settlement or compromise, the Indemnitee may enter
into such settlement or compromise and such settlement or compromise shall
not
be conclusive as to, or otherwise be used to establish, the existence or amount
of the liability of the Indemnifying Party to the Indemnitee or any third
party. The Indemnitee may not consent to entry of any judgment or
enter into any settlement or compromise with respect to a claim which does
not
include as an unconditional term thereof the giving by the claimant or plaintiff
to the Indemnifying Party of a release from all liability in respect of such
claim.
16
(e) Both
the Indemnifying Party and the Indemnitee shall cooperate fully with one another
in connection with the defense, compromise or settlement of any claim, including
without limitation making available to the other all pertinent information
and
witnesses within its control at reasonable intervals during normal business
hours.
5.6. Exclusive
Remedy. The parties hereto agree that the indemnification
provisions set forth in this Section 5 are the exclusive remedy for any
indemnifiable Loss.
5.7. Set-Off. Buyer
may offset any Loss indemnifiable by Seller and/or Xx. Xxxxx under this
Agreement against any amounts payable to Seller or to Xx. Xxxxx or any heir,
beneficiary or assign by Buyer at or after the Effective Date pursuant to this
Agreement, the $300,000 Note, the $2,900,000 Note, the
Non-Competition Agreements or otherwise, whether or not Seller or Xx. Xxxxx
continues to be the holder or beneficiary of such obligations of Buyer upon
the
determination of the amount of such Loss upon fifteen (15) days written notice
to Seller and Xx Xxxxx..
6. Other
Agreements.
6.1. Transferring
Employees. From the date of this Agreement until the Effective
Date, Seller has not paid or obligated itself to pay, any compensation,
commission or bonus to any staff employee or independent contractor as such,
except for the regular compensation, accrued benefits and commissions payable
to
such staff employee or independent contractor at the rate in effect on the
date
of this Agreement. Seller agrees to notify Buyer of the departure or
pending departure of any staff employee prior to the Effective
Date.
6.2. Conduct
of Business. From the date of this Agreement through the
Effective Date, Seller will use its best efforts to preserve the Purchased
Assets intact, to keep available to Buyer the services of its employees and
independent contractors and to preserve for Buyer its relationships with
suppliers, licensees, distributors and customers and others having business
relationships with the Purchased Assets. From the date of this
Agreement through the Effective Date, the Seller shall carry on its business
of
the Purchased Assets substantially in the same manner as heretofore and shall
not make or institute any unusual or new methods of
17
purchase,
sale, performance, lease, management, accounting or operation. From
the date of this Agreement through the Effective Date, all of the Purchased
Assets shall be used, operated, repaired and maintained by the Seller in a
normal business manner consistent with past practice. Unless
instructed otherwise by the Buyer in writing, the Seller will accept customer
requests for services in the ordinary course of business and consistent with
past practice for all services offered by the Seller but expected to be
performed by the Buyer after the Effective Date. From the date of
this Agreement through the Effective Date, the Seller will not, and will not
obligate itself to, sell or otherwise dispose of or pledge or otherwise encumber
any of the Purchased Assets except in the ordinary course of business and Seller
will maintain the Fixed Assets and its facilities in good operating condition
and repair, subject only to ordinary wear and tear. The Seller will
comply with all laws and regulations which are applicable to its ownership
of
the Purchased Assets or the use of the Purchased Assets and will perform and
comply with all of the Contracts and other commitments and obligations by which
it is bound. Seller will continue to carry all of its existing
insurance until the Effective Date. Seller agrees to notify and
consult with Buyer with respect to all decisions outside of the ordinary course
relating to the Purchased Assets until the Effective Date.
6.3. Schedules. No
later than ten (10) days after the date of this Agreement, Seller shall provide
to Buyer any schedules (the “Schedules”) which it did not deliver to Buyer upon
the signing of this Agreement.
6.4. Keep
Informed. From the date hereof through the Effective Date, Seller
shall promptly notify Buyer of (i) any changes to the information disclosed
on
any schedule hereto, including changes occurring after the date hereof (although
such disclosure shall not in any way amend or supplement any schedule) and
(ii)
any condition, circumstance, fact or other information that may cause the
representations and warranties of the Seller and Xx. Xxxxx contained herein
to
be incomplete or untrue as of the Effective Date as if made on and as of such
time or cause the Seller to be unable to perform its covenants contained herein
that it is required to perform on or before the Effective Date.
6.5.Audited
Financials. Seller shall deliver to Buyer no later than 45 days
after the Effective date such audited financial statmetns as shall be required
to enable Buyer to fuklfill its obligations under Form 8-K and other applicable
securities laws regulations (it being agreed that the Buyer shall bear fifty
percent (50%) the cost of such audit)
7. Post-Closing
Agreements. The Seller and the Buyer, as the case may be, agree
that from and after the Closing Date:
7.1. Proprietary
Information.
(a) The
Seller shall hold in confidence, and use its best efforts to have all of the
officers, managers, members, directors, employees, other personnel and agents
of
the Seller to hold in confidence, all knowledge and information of a secret
or
confidential nature with respect to the Purchased Assets and shall not disclose,
publish or make use of the same without the consent of the Buyer, except (i)
to
the extent that such information shall have become public knowledge other than
through the act of Seller, or any of its officers, directors and personnel
except as would be permitted under (ii) and (iii) of this Section 7.1(a), (ii)
as may be required
to enforce any of Seller's rights against Buyer, or (iii) as may be required
by
applicable law or legal process.
18
(b) The
Seller agrees that the remedy at law for any breach of this Section 7.1 may
be
inadequate and that the Buyer shall be entitled to seek injunctive relief in
addition to any other remedy it may have upon breach of any provision of this
Section 7.1.
7.2. Further
Assurances and Data.
(a) At
any time and from time to time after the Effective Date, at the Buyer's
reasonable request and without further consideration, the Seller shall execute
and deliver such instruments of sale, transfer, conveyance, assignment and
confirmation, and take such other action, all at the Buyer's sole cost and
expense, as the Buyer may reasonably request to more effectively transfer,
convey and assign to the Buyer, and to confirm the Buyer's title to, all the
Purchased Assets, to put the Buyer in actual possession and operating control
thereof, to assist the Buyer in exercising all rights with respect thereto,
and
to carry out the purpose and intent of this Agreement. Immediately
after the Effective Date, the Seller shall, to the extent applicable, authorize
the release to the Buyer of all files pertaining to the Purchased Assets held
by
any federal, state, county or local authorities, agencies or
instrumentalities. The Seller and the Buyer will cooperate in
communications with suppliers and customers to accomplish the transfer of the
Purchased Assets to the Buyer.
(b) The
parties agree that from and after the Effective Date, as to any monies received
that rightfully belong to the other party, they shall remit such monies promptly
to the other party.
(c) Within
fifteen (15) business days after the Effective Date, the parties shall mutually
agree on the pro-ration as of the Effective Date of rent, utilities and
telephone relative to the Purchased Assets, and the party obligated to pay
the
net amount of such prorated items to the other party will make such payment
ten
(10) days after the agreement on pro-rations is consummated. Seller
will pay the premiums for the health benefits of Seller’s employees to be
employed by Buyer through March 31, 2007.
(d) Each
party shall have the right, for a period of three (3) years following the
Effective Date, to have reasonable access to those books, records and accounts,
including financial and tax information, correspondence, employment records
and
other records that may, at that time, be in the possession of the other party
to
the extent that any of the foregoing relates to the Purchased Assets and is
needed by such party in order to comply with its obligations under applicable
securities, tax, environmental, employment or other laws and
regulations.
(e) Notwithstanding
anything in this Agreement to the contrary, this Agreement shall not constitute
an agreement to assign any approval, agreement, contract, lease, or other
commitment included in the Purchased Assets if an attempted assignment thereof
without the consent of a party thereto would constitute a breach
thereof.
(f) Seller
is delivering as of the date of this Agreement to Buyer an aging schedule of
Seller’s accounts receivable as of February 26, 2007 and shall deliver an update
of such schedule as of the Effective Date on the Effective Date.
19
7.3. Cooperation
in Litigation. Each party hereto will reasonably cooperate with
the other in the defense or prosecution of any litigation or proceeding already
instituted or which may be instituted hereafter against or by such party
relating to or arising out of the use of the Purchased Assets prior to the
Effective Date (other than litigation arising out of the transactions
contemplated by this Agreement). The party requesting such
cooperation shall pay the out-of-pocket expenses (including legal fees and
disbursements) of the party providing such cooperation and of its officers,
directors, employees, other personnel and agents reasonably incurred in
connection with providing such cooperation, but shall not be responsible to
reimburse the party providing such cooperation for such party's time spent
in
such cooperation or the salaries or costs of fringe benefits or similar expenses
paid by the party providing such cooperation to its officers, directors,
employees, other personnel and agents while assisting in the defense or
prosecution of any such litigation or proceeding.
7.4. Accounts
Receivable and Accounts Payable.
(a) The
Seller agrees that it will utilize normal collection efforts consistent with
past business practices of the Seller in collecting the outstanding Accounts
Receivable of the Seller as of the Effective Date. The Seller shall
not undertake any formal collection action (whether legal action, referral
to a
collection agency or otherwise) with respect to any such account receivable
without first consulting with the Buyer. The Seller agrees to pay, in
a manner consistent with past business practice of the Seller, the outstanding
accounts payable of the Seller as of the Effective Date. The Buyer
shall not, and shall not permit its employees, officers, directors, independent
contractors or agents to, directly or indirectly, encourage any customer of
Seller not to make payment on any accounts receivable of Seller or commit any
action which could reasonably lead or cause any customer not to make such a
payment and the Buyer shall otherwise cooperate with Seller and its designees
(and cause its personnel and accountants to cooperate) in Seller’s collection
efforts.
(b) The
parties agree that in the event
payments are received by either of the parties on accounts receivable from
customers who are customers of both of the Buyer and Seller, such payments
shall
be applied in accordance with the customer's instruction. In the event
that the customer has not provided instructions on the face of the
remittance or any accompanying documentation or correspondence, then such
payments shall be applied first to the newest outstanding invoice(s). In
the event that either party receives proceeds of accounts receivable which
belong to the other party, such party will immediately remit such proceeds,
in
kind, to the other party.
7.5. Consents. Seller
and Buyer will use their commercially reasonable best efforts to obtain by
the
Effective Date, consent in a form reasonably satisfactory to
Buyer from landlord relating to the Real Property Lease
identified on Schedule 2.10 attached hereto, consenting to the assumption of
such Real Property Lease by the Buyer and the release of Seller from all
obligations and liabilities under such Real Property Lease and any related
guarantees, and
any
other consents required under any Contract or otherwise in connection with
the
transactions contemplated by this Agreement.
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Buyer
shall pay all costs and fees payable to landlords in connection with obtaining
the consents related to the Real Property Lease. If a consent is not
obtained with respect to any Real Property Lease by the Effective Date, Buyer
shall continue to pay Seller, when and as the same becomes due, the monthly
rental due pursuant to such Real Property Lease.
Buyer
shall pay all costs and fees payable to landlord in connection with obtaining
the consents related to the Real Property Lease. If a consent is not
obtained with respect to any Real Property Lease by the Effective Date, Buyer
shall continue to pay Seller, when and as the same becomes due, the monthly
rental due pursuant to such Real Property Lease.
8. Conditions
Precedent to Seller's Obligation to Sell the Assets. The
obligations of Seller to sell the Assets is subject to the fulfillment prior
to
or at the Closing of the following conditions:
8.1. Buyer's
Performance. There shall not be any material error, misstatement
or omission in the representations and warranties made by Buyer in this
Agreement; all representations and warranties by Buyer contained in this
Agreement or in any written statement delivered by Buyer to Seller pursuant
to
this Agreement shall be true in all material respects at and as of the Closing
as though such representations and warranties were made at and as of said time
(except (i) as contemplated by this Agreement and (ii) to the extent, if any,
Seller shall waive the same); and Buyer shall have performed and complied with
all the terms, provisions and conditions of this Agreement to be performed
and
complied with by Buyer at or before the Closing.
8.2. Transaction
Agreements. Buyer shall have executed and delivered this
Agreement, all related transaction agreements contemplated herein, and all
other
documents identified in Section 4.2 of this Agreement.
8.3. Charter
Documents and Certificates. Buyer shall have delivered such
certificates or other documents as may be reasonably requested by Seller,
including, without limitation, certificates of legal existence, good standing
and certified charter documents from the Secretary of State of Delaware, and
certificates of an officer of the Buyer with respect to directors’ resolutions,
by-laws and other matters.
8.4. Consents
and Approvals. Buyer shall have provided all notices and obtained
all consents, authorizations and approvals under all statutes, laws, ordinances,
regulations, rules, judgments, decrees and orders of any court or governmental
agency, board, bureau, body, department or authority or of any other person
required to be provided or obtained by Buyer, in connection with the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby.
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9. Conditions
Precedent to Buyer's Obligation to Purchase the Assets. The
obligation of Buyer to purchase the Assets is subject to
the fulfillment prior to or at the Closing of the following
conditions:
9.1. Seller's
Performance. There shall not be any material error, misstatement
or omission in the representations and warranties made by Seller or Xx. Xxxxx
in
this Agreement; all representations and warranties by Seller or Xx Xxxxx
contained in this Agreement or in any written statement delivered by Seller
or
Xx. Xxxxx to Buyer pursuant to this Agreement shall be true in all material
respects at and as of the Closing as though such representations and warranties
were made at and as of said time (except (i) as contemplated by this Agreement
and (ii) to the extent, if any, Buyer shall waive the same); and Seller shall
have performed and complied with all the terms, provisions and conditions of
this Agreement to be performed and complied with by Seller at or before the
Closing.
9.2. Transaction
Documents. Seller and Xx. Xxxxx shall have executed and delivered
this Agreement, and Seller shall have executed and delivered, or caused to
be
executed and delivered, all related transaction agreements contemplated herein
and all other documents set forth in Section 4.1 of this Agreement.
9.3. Charter
Documents and Certificates. Seller shall have delivered such
certificates or other documents as may be reasonably requested by Buyer,
including, without limitation, certificates of legal existence, good standing
and certified charter documents from the Secretary of State of the State of
California, and certificates of the Chief Executive Officer of the Seller with
respect to minutes, resolutions, by-laws and any other relevant matters
concerning the Seller in connection with the transactions contemplated by this
Agreement.
9.4. Schedules. Buyer
shall have received the Schedules and be reasonably satisfied with the contents
thereof.
9.5. Consents
and Approvals. Seller shall have provided notice and obtained all
consents, authorization and approvals under all statutes, laws, ordinances,
regulations, rules, judgments, decrees and orders of any court or governmental
agency, board, bureau, body, department or authority or of any other person
including, without limitation, as required by or under any Contract, required
to
be provided or obtained by Seller, as the case may be, in connection with the
execution, delivery and performance of this Agreement and the consummation
of
the transactions contemplated hereby.
9.6. Assets;
Material Adverse Change. There shall have occurred no material
damage to or destruction or loss of (whether or
not covered by insurance) any of the Assets, nor any
material adverse change in the business, financial condition, operating results
or prospects of Seller and its Affiliates with respect to the Acquired
Business.
9.7. Employees. Each
of the other Transferring Employees as of the date hereof shall have agreed
to
continue his or her employment with Buyer, and shall have entered into the
confidential information, non-solicitation agreement with Buyer in the form
of
Exhibit ___.
9.8. Release
of Liens. Any lien or encumbrance on the Assets shall have been
released.
10. Transfer
and Sales Tax. Notwithstanding any provisions of law imposing the
burden of such taxes on the Seller or the Buyer, as the case may be, the Buyer
shall be responsible for and shall pay (a) all sales, bulk sales, use and
transfer taxes, and (b) all governmental charges, if any, upon and due in
connection with the sale or transfer of any of the Purchased Assets
hereunder.
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11. Termination. This
Agreement may be terminated at any time prior to or on the Closing
Date:
(a) by
mutual written consent of the Buyer and the Seller; or
(b) by
Buyer who may, without liability to Seller, terminate this Agreement by notice
to Seller (i) at any time prior to the Closing if default shall be made by
Seller in the observance or in the due and timely performance of any of the
material terms hereof to be performed by Seller that cannot be cured at or
prior
to the Closing, (ii) at the Closing if any of the conditions precedent to the
performance of Buyer’s obligations at the Closing shall not have been fulfilled;
or
(c) by
Seller who may, without liability to Buyer, terminate this Agreement by notice
to Buyer (i) at any time prior to the Closing if default shall be made by Buyer
in the observance or in the due and timely performance of any of the terms
hereof to be performed by Buyer that cannot be cured at or prior to the Closing,
or (ii) at the Closing if any of the conditions precedent to the performance
of
Seller’s obligations at the Closing shall not have been fulfilled.
12. Notices. Any
notices or other communications required or permitted hereunder shall be in
writing and shall be sufficiently given if delivered personally or sent by
facsimile (with transmission confirmed), Federal Express, registered or
certified mail, return receipt requested, postage prepaid, addressed as follows
or to such other address or facsimile number of which the parties may have
given
notice:
To
the
Seller:
Xx.
Xxxxxx Xxxxx
ReStaff
Services, Inc.
2400
Xxxxxxxx Xxxxxxxxx, Xxxxx X0
Xxxxxxxxx,
XX 00000
With
a
copy to:
S.
Xxxxx
Xxxxxxxx
1200
Xxxxxx Xxxx., Xxxxx 000
Xxxxxxxxx,
XX 00000
Fax: 000-000-0000
To
the
Buyer:
Xx.
Xxxxx
Xxxxxxx
President
500
Xxxxx
Xxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Unless
otherwise specified herein, such notices or other communications shall be deemed
received (a) on the date delivered, if delivered personally, by facsimile or
by
Federal Express; or (b) three business days after being sent, if sent by
registered or certified mail.
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13. Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective heirs, successors and
assigns, except that neither party may assign its obligations hereunder without
the prior written consent of the other parties hereto; provided,
however, that the Buyer may assign Buyer's rights hereunder to a
subsidiary or affiliate of Buyer, provided that the Buyer shall remain
liable for its obligations hereunder. Any assignment in contravention
of this provision shall be null and void. No assignment shall release
the Buyer from any obligation or liability under this Agreement.
14. Entire
Agreement; Amendments; Attachments.
14.1. Entire
Agreement; Amendment. This Agreement, all schedules and exhibits
hereto, and all agreements and instruments to be delivered by the parties
pursuant hereto represent the entire understanding and agreement between the
parties hereto with respect to the subject matter hereof and supersede all
prior
oral and written, and all contemporaneous oral negotiations, commitments and
understandings between such parties including, without limitation, the proposed
letter of intent, dated February 19, 2007. The Buyer and the Seller,
by the consent of their respective Boards of Directors, or officers authorized
by such Boards, may amend or modify this Agreement, in such manner as may be
agreed upon, by a written instrument executed by the Buyer and the
Seller.
14.2. Attachments. If
the provisions of any schedule or exhibit to this Agreement are inconsistent
with the provisions of this Agreement, the provisions of this Agreement shall
prevail. The exhibits and schedules attached hereto or to be attached
hereafter are hereby incorporated as integral parts of this
Agreement.
15. Expenses. Except
as otherwise provided herein, each party hereto shall pay its own expenses
in
connection with this Agreement and the transactions contemplated
hereby.
16. Legal
Fees. In the event that legal proceedings are commenced by any
party hereto against any other party hereto in connection with this Agreement
or
the transactions contemplated hereby, the party which does not prevail in such
proceedings shall pay the reasonable attorneys' fees and costs incurred by
the
prevailing party in such proceedings.
17. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California, without regard to conflicts
of law principles.
18. Section
Headings. The section headings are for the convenience of the
parties and in no way alter, modify, amend, limit, or restrict the contractual
obligations of the parties.
19. Severability. The
invalidity or unenforceability of any provision of this Agreement shall not
affect the validity or enforceability of any other provision of this
Agreement.
20. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed an original but all of which, when taken together, shall be one and
the
same document.
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21. Public
Disclosure. Neither party shall make any public statement about,
nor issue any press release concerning this Agreement or the transactions
contemplated hereby without first consulting with the other party hereto as
to
the form and substance of any such press release or public disclosure; provided,
however, that nothing in this Section 18 shall be deemed to prohibit any party
hereto from making any disclosure that its counsel deems necessary or advisable
in order to satisfy such party's disclosure obligation imposed by
law.
22. WARN
Act. For a
period of at least forty-five (45) days from and after the Effective Date,
Buyer
shall employ substantially all, but in no event less than 70%, of the full-time
employees associated with the Purchased Assets and shall not terminate more
than
50 full time employees who were employed by the Seller as of the Effective
Date. Buyer shall be liable and responsible for any obligations under
the Worker Adjustment and Retraining Notification Act, as amended (the “WARN
Act”), arising out of Buyer’s breach of this Section 19 with respect to the
employees associated with the Purchased Assets.
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IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto
as
of the date first above written.
SELLER: RESTAFF SERVICES, INC. | |||
|
By:
|
/s/ Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
Title: President | |||
|
By:
|
/s/ Xxxxxx Xxxxx | |
Name: Xxxxxx Xxxxx | |||
BUYER: ACCOUNTABILITIES, INC. | |||
|
By:
|
/s/ Xxxxx Xxxxxxx | |
Name: Xxxxx Xxxxxxx | |||
Title: President | |||
26