Exhibit 10.1
DOCUMENT BOOK
ACQUISITION OF
ROSSAR HR, LLC
BY
THE RESOURCING SOLUTIONS GROUP, INC.
September 21, 2004
TABLE OF CONTENTS
Document Title Tab No.
--------------------------------------------------------------------------------
Asset Purchase Agreement..................................................... 1
Exhibits to Asset Purchase Agreement:
-------------------------------------
Exhibit 1.4 Management Agreement............................................. 2
Exhibit 3.2 Promissory Note.................................................. 3
Exhibit 4.3(b) ▇▇▇▇ of Sale and Assignment................................... 4
Exhibit 4.3(c) Unemployment Certificate...................................... 5
Exhibit 4.4(c) Assumption Agreement.......................................... 6
Exhibit 4.4(d) Employment Agreement.......................................... 7
Certificate of Resolutions of Rossar HR, LLC................................. 8
Unanimous Consent of Rossar HR,LLC........................................... 9
Certificate of Resolutions of The Resourcing Solutions Group, Inc............ 10
Unanimous Consent of The Resourcing Solutions Group, Inc..................... 11
Schedules to Asset Purchase Agreement........................................ 12
-------------------------------------
1.1(b) Furniture, fixtures and equipment
1.1(c) Real Property Leases
1.1(d) Computer Hardware and Software
1.1(e) Licenses, Including Software
1.1(g) Trade Names and Trademarks
1.1(h) Non-workers Compensation Deposits
1.1(j) Cash and Cash Equivalent Exceptions
3.3 Purchase Price Allocation
5.3 Noncontravention Exceptions
5.4 Encumbrances and Liens
5.5 Personal Property
5.6 Customer Agreements
5.7 Customer List
5.10 Sellers' Jurisdictions
5.11 Governmental Approvals and Filings Exceptions
5.13 Material Changes, Events and Developments
7.6(g)(iii) Bank Accounts
ASSET PURCHASE AGREEMENT
between
ROSSAR HR, LLC
Seller,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
and
THE RESOURCING SOLUTIONS GROUP, INC.
Buyer
This ASSET PURCHASE AGREEMENT is entered into as of September 21, 2004
(the "Purchase Agreement") by and between THE RESOURCING SOLUTIONS GROUP, INC.,
a Nevada corporation ("Buyer"), and ROSSAR HR, LLC, a Pennsylvania limited
liability company ("Seller"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
("Owners").
WITNESSETH:
WHEREAS, Seller operates a professional employer services business in
Coraopolis, Pennsylvania (the business referred to as the "Purchased Business");
and
WHEREAS, the parties desire that Seller transfers, conveys and assigns
to Buyer those certain assets, properties and rights of the Purchased Business
as a going concern; and that Buyer purchase and acquire the same, upon the terms
set forth below;
WHEREAS, the Owners collectively own one hundred percent (100%) of the
membership interests of Seller, and have agreed as part of the sale of the
Purchased Business to certain restrictive covenants in Article VII;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements set forth below, the
parties agree as follows:
ARTICLE I
TRANSFER OF PURCHASED ASSETS AND RELATED MATTERS
1.1 PURCHASED ASSETS. On the terms and subject to the conditions
of this Agreement, Seller shall transfer, convey and assign to Buyer, and Buyer
shall purchase and acquire from Seller the following assets, properties and
rights of Seller, effective as of the date provided in the ▇▇▇▇ of Sale and
Assignment attached hereto as Exhibit 4.3(b):
(a) all customers of the Purchased Business as named and
described in Schedule 5.7 attached hereto;
(b) all furniture, fixtures, and equipment used in the
Purchased Business as set forth in Schedule 1.1(b);
(c) all real property leases as set forth in Schedule
1.1(c) attached hereto;
(d) all computer hardware and software used in the
business, including, but not limited to Accountix PEO Pro as described
in Schedule 1.1(d) attached hereto;
(e) all licenses used in the Purchased Business,
including, but not limited to, software licenses, as described, in
Schedule 1.1(e) attached hereto;
(f) all customer contracts of Seller as of the Closing
Date as described in Schedule 5.6 attached hereto;
1
(g) the Trade Names and Trademarks (including Service
Marks) of Seller used in the Purchased Business as described on
Schedule 1.1(g) attached hereto; and
(h) all non-workers compensation deposits relating to the
Purchased Business as described in Schedule 1.1(h) attached hereto
(i) all records and files, including, but not limited to,
property records, purchasing and sales records, correspondence with
suppliers and customers (both actual and prospective), personnel
records, mailing lists, customer and vendor lists and records used
exclusively in the Purchased Business.
(j) Unless specifically described in Schedule 1.1(j), all
cash and cash equivalents generated from the operation of the Purchased
Business (i.e. amounts invoiced to customers).
For convenience of reference, the assets, properties and rights to be
transferred, conveyed and assigned to Buyer hereunder, exclusive of the Excluded
Assets, are herein collectively called "Purchased Assets".
The parties agree and acknowledge that Buyer is purchasing substantially all of
the assets of Seller by way of this Purchase Agreement.
1.2 EXCLUDED ASSETS. Anything contained in Section 1.1 hereof to
the contrary notwithstanding, there are expressly excluded from the assets,
properties and rights to be transferred, conveyed and assigned to Buyer all
assets of Seller except those specifically conveyed to the Buyer as provided in
Section 1.1 including, but not limited to the following:
(a) all notes receivable; and
(b) all corporate records, including, but not limited to,
corporate minute books, accounting records, payroll records and tax
returns, provided, however, Buyer shall have reasonable access to all
such corporate records of Seller prior to and after the closing Date;
all amounts received by Seller after the Closing in respect to services
provided by Seller prior to Closing; and
(c) all assets not specifically included as a Purchased
Asset, including, but not limited to, leases for personal property and
contracts for insurance and contracts for services not described in
Schedules 5.6 and 1.1(c)
For convenience of reference, the assets, properties and rights which are not to
be transferred, conveyed and assigned to Buyer hereunder are herein collectively
called "Excluded Assets".
1.3 PASSAGE OF TITLE AND RISK OF LOSS. Legal and equitable title
and risk of loss with respect to the Purchased Assets will not pass to Buyer, as
a result of this Agreement, until such assets are transferred on the Effective
Date.
1.4 MANAGEMENT AGREEMENT. The Parties shall execute a Management
Agreement effective as of the Closing Date substantially in the form as in
Exhibit 1.4 attached hereto.
2
ARTICLE II
ASSUMPTION OF CERTAIN LIABILITIES
2.1 ASSUMED OBLIGATIONS. At the closing, Buyer will assume the
following liabilities and obligations, and only the following liabilities and
obligations, of Seller:
The liabilities and obligations arising after the Effective Date under
those contracts, licenses, leases, and other written agreements set
forth on Schedules 1.1(c) and (e) and Schedule 5.6.
For convenience of reference, the liabilities and obligations being assumed by
Buyer as stated above are herein collectively called the "Assumed Obligations".
Buyer shall also have an option to assume any personal property leases relating
to the Purchased Business at any time prior to December 31, 2004. To exercise
such an option, Buyer shall notify Seller in writing of its intent to assume a
lease and describe the lease.
2.2 EXCLUDED OBLIGATIONS. Any other provision of this Agreement to
the contrary notwithstanding, Buyer does not assume any liability or obligation
of Seller not included in the Assumed Obligations, and Schedules 1.1(c) and (e)
and Schedule 5.6, including, but not limited to, the following:
(a) any liabilities and obligations of Seller for
Federal, state or local taxes, fines, interest or penalties (including,
without limitation, franchise, income, personal, real property, sales,
use, unemployment, gross receipts, excise, payroll, withholding or
other taxes);
(b) any claims, demands, liabilities or obligations of
any nature whatsoever which arose or were incurred at or before the
Effective Date, or which are based on any event that occurred or
existed at or before the Effective Date, or which are based on services
performed by Seller at or before the Effective Date, irrespective of
when a claim or demand is made (including if the claim is made after
Effective Date) irrespective of whether the liability or obligation
becomes manifest, after the Effective Date, and regardless of whether
or not set forth or otherwise disclosed on any Schedule attached hereto
(whether or not required to be so set forth or disclosed), including,
but not limited to, that certain claim by Envirotrol;
(c) any actions, suits, claims, investigations or legal,
administrative or arbitration proceedings pending or threatened against
Seller;
(d) any liabilities and obligations of Seller for amounts
owed to any person affiliated with Seller, in his or her capacity as an
owner of Seller;
(e) any liabilities and obligations of Seller existing at
the Closing under an employment agreement, written or verbal, or
relating to in any way wages, commissions, bonuses, fees, expenses,
accrued holiday, vacation and severance pay;
3
(f) any liabilities or obligations for payments due or
required to be made under any health, dental, vision, pension,
retirement, savings or other compensation or employee benefit plan
maintained by Seller or any other entity;
(g) any liabilities and obligations of Seller under any
contract, license, lease or other agreement which is not listed on
Schedules 1.1(b)-(e) or Schedule 6.6 attached hereto;
(h) any liabilities relating in any way to an injury to
an employee of Seller;
(i) any liability to pay any amounts under a contract or
policy of insurance; and
(j) any other liabilities and obligations of Seller not
being specifically assumed by Buyer pursuant to Section 2.1 above.
For convenience of reference, the liabilities and obligations of Seller not
being assumed by Buyer as aforesaid are collectively called the "Excluded
Obligations". Seller shall take any and all commercially reasonable actions
which may be necessary to prevent any person, firm or governmental authority
from having recourse against the Purchased Business, any of the Purchased Assets
or against Buyer with respect to any Excluded Obligations.
ARTICLE III
PURCHASE PRICE
3.1 PURCHASE PRICE. The aggregate consideration (the "Purchase
Price") to be paid to Seller for the Purchased Assets is valued at $272,000, to
be paid in accordance with Section 3.2 below.
3.2 PAYMENT OF PURCHASE PRICE. Unless otherwise stated below,
Buyer shall provide the following consideration to Seller for the Purchased
Assets on the Closing Date:
Buyer will deliver to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ the following
Promissory Note in the principal amount of $272,000 in the form as
in Exhibit 3.2 attached hereto; and
3.3 ALLOCATION. The Purchase Price will be allocated as set forth
on Schedule 3.3. The parties will use such allocation in reporting the
transaction for Federal and state tax purposes.
ARTICLE IV CLOSING
4.1 CLOSING DATE. The closing for the consummation of the
transaction contemplated by this Agreement (the "Closing") will take place at
Pittsburgh, PA on September 2004, or on such other date and at such other time
or place as Buyer and Seller may mutually agree, but the
4
purchase, sale, and assignment of assets shall be effective as of 12:01 a.m. on
January 1, 2005 (the "Effective Date").
4.2 SIMULTANEOUS ACTIONS. All actions to be taken and all
documents to be executed and delivered by the parties at the Closing will be
deemed to have been taken and executed simultaneously and no actions will be
deemed taken or any documents executed or delivered until all have been taken,
executed and delivered.
4.3 DELIVERIES BY SELLER ON CLOSING DATE. On or before the Closing
Date, Seller will deliver to Buyer the following:
(a) Closinq Certificate. An accurate certificate, dated
the Closing Date, of Seller, satisfactory in form and substance to
Buyer, certifying that:
(1) the representations and warranties of Seller
contained in this Agreement are true and accurate on and as of
the Closing Date with the same force and effect as if made on
the Closing Date;
(2) Seller has performed and complied with all
covenants, obligations and agreements to be performed or
complied with by them on or before the Closing Date pursuant
to this Agreement;
(3) attached hereto are true and complete copies
of resolutions adopted by Seller' board of directors or
members, as applicable, approving this Agreement and the
transactions contemplated hereby; and
(4) the incumbency and specimen signature of
each officer of Seller executing this Agreement and any other
document to be executed by Seller are as set forth in such
certificate; and
(b) Instruments of Transfer. A duly executed ▇▇▇▇ of sale
and general instrument of assignment, which ▇▇▇▇ of sale and assignment
shall be in substantially the form of Exhibit 4.3(b) attached hereto.
(c) Unemployment Certificate. Executed Certificate from
Seller as required under Pennsylvania law stating that all unemployment
contributions and obligations of Seller have been paid in full as of
the Closing Date in substantially the form of Exhibit 4.3(c) attached
hereto;
(d) Employment Aqreement. A duly executed Employment
Agreement by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in the form of Exhibit 3.2 attached
hereto; and
(e) Management Agreement. A duly executed Management
Agreement between Seller and Buyer in the form of Exhibit 1.4 attached
hereto.
5
4.4 DELIVERIES BY BUYER ON CLOSING DATE. On or before the Closing
Date, Buyer will have delivered to Seller the following:
(a) Closing Certificate. An accurate certificate, dated
the Closing Date, of a duly authorized officer of Buyer, satisfactory
in form and substance to Seller, certifying that:
(1) the representations and warranties of Buyer
contained in this Agreement are true and accurate on and as of
the Closing Date with the same force and effect as if made on
the Closing Date;
(2) Buyer has performed and complied with all
covenants, obligations and agreements to be performed or
complied with by it on or before the Closing Date pursuant to
this Agreement;
(3) attached hereto are true and complete copies
of resolutions adopted by Buyer's board of directors approving
this Agreement and the transactions contemplated hereby; and
(4) the incumbency and specimen signature of
each officer of Buyer executing this Agreement and any other
document to be executed by Buyer are as set forth in such
certificate.
(b) Delivery of Consideration. Buyer shall provide an
executed Promissory Note as required by Section 3.2.
(c) Assumption Agreement. A duly executed instrument of
assumption whereby Buyer shall assume the Assumed Obligations as
provided herein, which instrument of assumption shall be in
substantially the form of Exhibit 4.4(c) attached hereto.
(d) Employment Agreement. An Employment Agreement between
Buyer and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ substantially in the form as set forth in
Exhibit 4.4(d) attached hereto.
(e) Life Insurance Policy. If ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is
insurable with reasonable efforts, Buyer will purchase a level
ten-year, term life insurance policy in the name of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
that will include a death benefit in an amount equal to $1,000,000 to a
beneficiary of her choice. The Company will pay the annual premium for
this policy in years 1-5. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ may elect to continue the
policy beyond year five, but she will be solely responsible for paying
the annual premium for years 6-10.
4.5 POST-CLOSING DELIVERIES OF BUYER
Reaffirmation of Representations and Warranties. Buyer shall
provide representations and warranties as provided in Article VI herein that
shall be effective as of December 31, 2004.
6
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLERS
Seller represents and warrants to Buyer as follows:
5.1 ORGANIZATIONAL MATTERS. Seller is a limited liability company
duly organized, validly existing and in good standing under the laws of the
Commonwealth of Pennsylvania.
5.2 AUTHORITY. Seller has all requisite power and authority to:
own, lease and operate its respective properties; carry on the Purchased
Business as now being conducted; enter into this Agreement; perform its
respective obligations hereunder; and consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by Seller, and
the consummation of the transactions contemplated hereby, have been duly and
validly authorized by all necessary corporate action on the part of each of the
Seller. This Agreement has been duly and validly executed by each Seller, and is
a valid and binding obligation of each Seller, enforceable in accordance with
its terms.
5.3 NON-CONTRAVENTION. Except as stated in Schedule 5.3, neither
the execution, delivery and performance of this Agreement by Seller, nor the
consummation by Seller of the transactions contemplated hereby nor compliance by
Seller with any of the provisions hereof will:
(a) conflict with or result in a breach of any provision
of, as applicable, the Articles of Organization or Operating Agreement
of Seller;
(b) as of the Closing Date, cause a default (or give rise
to any right of termination, cancellation, or acceleration) under any
of the terms of any note, bond, lease, mortgage, indenture, license,
warranty or other instrument or agreement to which Seller is a party,
or by which Seller or any of its assets are or may be bound or
benefited; or
(c) violate any law, statute, rule or regulation or
order, writ, judgment, injunction or decree applicable to Seller or any
of its respective assets.
No consent or approval by, or any notification or filing with, and no permit, or
authorization of, any public body or authority is required in connection with
the execution, delivery, and performance by Seller or the consummation by Seller
of the transactions contemplated by this Agreement.
5.4 TITLE TO ASSETS.
(a) Seller has good and marketable title to (or a valid
leasehold interest in) all of the Purchased Business and each of the
Purchased Assets, free and clear of all mortgages, liens, pledges,
charges, security interests, rights of way, options, rights of first
refusal, conditions, restrictions or encumbrances of any kind or
character, whether or not relating to the extension of credit or the
borrowing of money (collectively, "Encumbrances"), except for the
Encumbrances set forth on Schedule 5.4, and liens for taxes and
governmental charges incurred in the ordinary course of business for
Seller's services not yet due and payable.
7
(b) The Purchased Assets include all assets and
properties and all rights that Seller believes are necessary to carry
on the Purchased Business as presently conducted by Seller. Seller has
complete and unrestricted power and the unqualified right to sell,
convey, assign, transfer and deliver the Purchased Assets (subject to
obtaining any consents or waivers of third parties disclosed on
Schedule 5.4 and required in connection with such sale, conveyance,
assignment, transfer and delivery of the Purchased Assets or any part
thereof). The instruments of transfer, conveyance and assignment
executed and delivered by Seller to Buyer at the Closing will be valid
and binding obligations of Seller, enforceable in accordance with their
respective terms, except in each case to the extent limited by
application of general principles of equity and by bankruptcy,
insolvency, debtor relief, and similar laws of general application
affecting the enforcement of creditors' rights and debtors'
obligations, and sufficient to transfer, convey and assign to Buyer all
of Seller's interest in and to the Purchased Assets, and sufficient to
vest in Buyer the full right, power and authority to conduct the
Purchased Business as presently conducted.
5.5 PERSONAL PROPERTY. Schedule 5.5 attached hereto contains a
summary and brief description of all material tangible personal properties and
assets of the Purchased Business. All such personal property is in good
operating condition and repair (excepting normal wear and tear), is adequate and
suitable for the uses for which intended by Seller in the ordinary course of the
Purchased Business, and there does not exist any condition which interferes in
any material way with the use or economic value thereof.
5.6 AGREEMENTS. Schedule 5.6 attached hereto sets forth a true,
complete and correct list of all Customer Agreements to which and of the Seller
were a party as of the Closing Date.
5.7 CUSTOMERS. Schedule 5.7 attached hereto contains a true and
complete list of the customers of the Purchased Business as of the Closing Date.
5.8 BROKERS. Neither Seller, nor any of its officers, directors,
employees or members, has employed any broker or finder in connection with the
transactions contemplated by this Agreement. Seller shall indemnify, defend and
hold Buyer harmless from any and all claims or losses relating to brokerage
fees, commissions or finder's fees owed or claimed to be owed to any broker or
finder engaged or claimed to be engaged by Seller.
5.9 BENEFIT PLANS/ERISA. Seller is not a party to, and is not a
sponsor, administrator or fiduciary of any employee benefit plan, including, but
not limited to, an employee benefit plan defined in Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") which is maintained
or contributed to by the Company or any organization which is a member of a
controlled group of organizations within the meaning of Code Sections 414(b),
(c), (m) or (o) of which any of the Sellers is a member (the "Controlled Group")
or under which any of the Sellers or any member of the Controlled Group has any
liability or contingent liability ("Benefit Plans"), and which cover any
employee of the Seller.
5.10 JURISDICTIONS. Seller are duly authorized, qualified, and if
required by state law, licensed to transact the Purchased Business in the states
listed on Schedule 5.10 attached
8
hereto. Seller is current on all reports, fees, and licensing required by the
states listed on Schedule 5.10.
5.11 GOVERNMENTAL APPROVALS AND FILINGS. Except as set forth in
Schedule 5.11, Seller has no Knowledge of any required consent, approval or
action of, filing with or notice to any Governmental or Regulatory Authority on
the part of the Seller is required in connection with the execution, delivery
and performance of this Agreement or any of the Related Agreements or the
consummation of the transactions contemplated hereby or thereby.
5.12 ABSENCE OF CHANGES. Except for the execution and delivery of
this Agreement and the transactions to take place pursuant hereto on or prior to
the Closing Date, since August 30, 2004, and except as set forth in Schedule
5.13 and particular to the business that the Company is in (i.e. not involving
the general economy), there has not been any change, event or development which,
individually or together with other such events, could reasonably be expected to
have a Material Adverse Effect on the Seller or the Purchased Business. Without
limiting the foregoing, except as set forth in Schedule 5.13, there has not
occurred between August 30, 2004 and the Closing Date:
(a) any physical damage, destruction or other casualty
loss (not covered by insurance) affecting the Purchased Business in an
amount exceeding $10,000 individually or $20,000 in the aggregate;
(b) any write-off or write-down, or any determination to
write off or write down in an amount exceeding $10,000 individually or
$20,000 in the aggregate;
(c) any re-negotiation of a service agreement between the
Seller and a major customer or any monetary condition contained therein
that would exceed $10,000;
(d) any incurrence of a Lien (other than a Permitted
Lien) in excess of $10,000 on any of the Company's property;
(e) any (i) amendment of the organizational documents of
the Seller, (ii) re-capitalization, reorganization, liquidation or
dissolution of the Seller or (iii) merger or other business combination
involving the Seller;
(f) any entering into, or material amendment,
modification, termination (partial or complete) or granting of a waiver
under or giving any consent with respect to any Contract or any License
that in the aggregate exceed $10,000;
(g) any commencement or termination by the Seller of any
line of business;
(h) any other material transaction involving or
development affecting the Purchased Business outside the ordinary
course of business, consistent with past practice;
(i) any entering into a Contract or committing to do or
engage in any of the foregoing after the date hereof;
9
(j) any termination of a material service agreement
between the Company and a client of the Seller;
(k) a termination of an insurance contract or policy of
the Seller that the Seller is unable to replace within a reasonable
time; or
(l) any distributions to equity holders of the Seller or
any payments to employees in excess of such employees base compensation
or to any other persons other than in the ordinary course of business.
5.13 TAXES.
(a) All Tax Returns required to be filed by or on behalf
of the Seller have been duly filed on a timely basis and such Tax
Returns are true, complete and correct. All Taxes owed by the, Seller
have been paid in full (whether or not shown on or reportable on such
Tax Returns).
(b) All payroll taxes of the Seller have been paid and/or
held in trust awaiting payment for all payroll processed by the Seller
through the date of Closing.
(c) None of the Purchased Assets is subject to any Lien
arising in connection with any failure or alleged failure to pay any
Tax.
5.14 COMPLIANCE WITH LAWS AND ORDERS. Seller has not at any time
within the last five (5) years, received any notice of a violation of or in
default under any Law, assigned License or Order.
In the event that Seller fails to comply with any of the requirements of Article
V, Buyer, in its sole discretion, shall be entitled to terminate the Purchase
Agreement and all other agreements relating thereto, and/or offset any losses,
costs, expenses, and liabilities caused by such non-compliance from the
Promissory Note.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
6.1 ORGANIZATIONAL MATTERS. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
6.2 AUTHORITY. Buyer has all requisite corporate power and
authority to enter into this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, have been duly and validly authorized by all necessary
corporate action on the part of Buyer. This Agreement has been duly and validly
executed and delivered by Buyer, and is a valid and binding obligation of Buyer,
enforceable in accordance with its terms.
10
6.3 NON-CONTRAVENTION. Neither the execution, delivery and
performance of this Agreement by Buyer, nor the consummation by Buyer of the
transactions contemplated hereby, nor compliance by Buyer with any of the
provisions hereof will:
(a) conflict with or result in a breach of any provision
of the Articles of Incorporation or Bylaws of Buyer;
(b) cause a default (or give rise to any right of
termination, cancellation or acceleration) under any of the terms of
any agreement, instrument or obligation to which Buyer is a party, or
by which any of its properties or assets may be bound, in each case
excluding the Purchased Assets as to which no representation or
warranty is made by Buyer; or
(c) violate any statute, rule or regulation or judgment,
order, writ, injunction or decree of any court, administrative agency
or governmental body, in each case applicable to Buyer or any of its
assets.
No consent or approval by, or any notification or filing with, and no permit, or
authorization of, any public body or authority is required in connection with
the execution, delivery, and performance by Buyer or the consummation by Buyer
of the transactions contemplated by this Agreement.
6.4 BROKERS. Buyer has engaged Sugarhill Financial Services, LLP
("Sugarhill"), and agreed to pay a fee to Sugarhill upon the completion of the
transaction that is the subject of this Agreement. Neither Buyer nor its
officers, directors, employees or members, has employed any other broker or
finder in connection with the transactions contemplated by this Agreement. Buyer
shall indemnify, defend and hold Seller harmless from any and all claims or
losses relating to brokerage fees, commissions or finder's fees owed or claimed
to be owed to any broker or finder engaged or claimed to be engaged by Buyer.
ARTICLE VII
COVENANTS OF SELLERS
Seller hereby covenants and agrees with Buyer as follows:
7.1 ACCESS TO PROPERTIES AND RECORDS. Seller will give to Buyer
and to its counsel, accountants, and other representatives reasonable access
during normal business hours to its properties, personnel, books, tax returns,
contracts, commitments and records and the right to make copies thereof. Seller
will furnish to Buyer and such representatives all such additional documents and
financial and other information concerning the Purchased Business as Buyer or
its representatives may from time to time reasonably request and permit Buyer
and such representatives to examine all records and working papers relating to
the preparation, review and audits of the financial statements and tax returns
relating to the Purchased Business.
7.2 APPROVALS. Seller will use all reasonable effort to obtain in
writing prior to the Closing Date all approvals, consents and waivers required
to be obtained by Seller in order to
11
effectuate the transactions contemplated hereby, and Seller shall obtain all
such approvals, consents, and waivers prior to the Effective Date.
7.3 FURTHER ASSURANCES. Seller will at any time and from time to
time after the Closing, upon the request of Buyer, do, execute, acknowledge and
deliver, and cause to be done, executed, acknowledged or delivered, all such
further acts, deeds, assignments, transfers, conveyances, powers of attorney or
assurances as may be required for the better transferring, assigning, conveying,
granting, assuring and confirming to Buyer, or for aiding and assisting in the
collection of or reducing to possession by Buyer, of the Purchased Assets, or to
vest in Buyer good, valid and marketable title to the Purchased Assets and
otherwise to consummate the transactions contemplated by this Agreement.
7.4 RESTRICTIVE COVENANTS.
(a) COVENANT NOT TO COMPETE. Seller, and its respective
successors, assigns, affiliates, and subsidiaries, and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, individually, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, individually, shall
not, for a period of two years from the Closing Date, for any reason,
directly or indirectly, engage in any business or venture that is
similar to, or competes with, the business of Buyer within the
Commonwealth of Pennsylvania, and the states of Maryland, Ohio, West
Virginia, and any other state in which Seller conducted business prior
to the Closing Date.
(b) COVENANT NOT TO SOLICIT OR SELL TO CUSTOMERS. In
addition to the restrictions described in paragraph 7.4(a), Seller and
its successors, assigns, subsidiaries or affiliates, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
individually, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, individually, shall not, for a
period of two years from the Closing Date, for any reason, directly or
indirectly, sell, offer or solicit Competitive Services, (as defined in
paragraph 7.4 (d)), to any current or former customer, or prospective
customer of the Seller, its subsidiaries, affiliates or franchisees,
without the prior written consent of the Buyer.
(c) COVENANT NOT TO INTERFERE. Seller and its successors,
assigns, subsidiaries or affiliates, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
individually, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, individually, shall not,
during the two year period immediately following the Closing Date, for
any reason, employ or attempt to employ any employee of Buyer (as of
the Closing Date) or any former employee of Seller, or otherwise
encourage or attempt to encourage any such person to leave their
respective employment.
(d) DEFINITIONS. References to "former" customers shall
mean a person that was a customer of the Seller during the twelve (12)
month period prior to the Closing Date and references to "prospective"
customers shall mean a person to whom the Seller has made a
presentation within the twelve (12) month period prior to the Closing
Date. The Term "Competitive Services" shall include employee leasing
services, payroll outsourcing, human resources advice and outsourcing,
temporary staffing services, "temp to hire" assignments, or what is
commonly referred to as payrolling.
(e) Divisibility OF COVENANT PERIOD. If any portion of
the restrictive covenants contained herein is held to be unreasonable,
arbitrary or against public policy, each covenant shall be considered
divisible as to time, customer base and personnel,
12
such that each month within the specified period shall be deemed a
separate period of time, each customer shall be deemed a separate
customer, resulting in an intended requirement that the duration of
time and lesser time and largest lesser customer base and personnel
base determined not to be unreasonable, arbitrary or against public
policy shall remain effective and be specifically enforceable against
the Seller.
(f) COVENANT INDEPENDENT. Each restrictive covenant set
forth in this Agreement shall be construed as a covenant independent of
any other covenant or provision of this Agreement or any other
agreement which the Seller or the ▇▇▇▇▇▇▇▇ may have, whether fully
performed or executory, and the existence of any claim or cause of
action by the Seller against the Buyer, whether predicated upon another
covenant or provision of this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Buyer of such
restrictive covenant.
(g) ASSIGNABILITY; SURVIVAL OF COVENANTS. All restrictive
covenants contained in this Agreement shall be fully assignable to any
successor or transferee of the Buyer with the written consent of the
Seller, which consent shall not be unreasonably withheld.
Notwithstanding this restriction on assignment, Buyer may assign the
restrictive covenants contained herein to an affiliate of Buyer without
the prior, written consent of any party to this Agreement. In the event
of such an assignment, the parties agree and understand that the
restrictive covenants shall be enforceable only to the extent as they
would apply prior to any assignment.
In the event that Seller violates a restrictive covenant described in Section
7.4, Buyer must provide Seller with notice of such violation and give Seller a
10 day cure period which if not resolved after such cure period to the
satisfaction of Buyer, Buyer, in its sole discretion, shall be entitled to
terminate the Purchase Agreement and all other agreements relating thereto
and/or offset any losses, costs, expenses, and liabilities caused by such
non-compliance from the Promissory Note.
7.5 CONDUCT AND TRANSACTIONS PRIOR TO THE EFFECTIVE DATE. From and
after the Closing Date until the Effective Date, except to the extent stated in
this Agreement or otherwise consented to in writing by Buyer:
(a) In accordance with the terms and conditions of the
Management Agreement, Seller will not manage the Purchased Business
after the Closing Date. Seller also agrees not take any actions
regarding the Purchased Business that would be contrary to the manner
that Seller presently conducts the Purchased Business, or otherwise
damaging to the Purchase Business. Seller agrees that it will not take
or cause any action that would be harmful to the Purchased Business,
including, but not limited to, any actions directed towards its
employees, representatives and agents of the Purchased Business. Seller
shall not take or omit to take any action which causes, or which is
likely to cause, any deterioration of its present business or
relationships with suppliers or customers.
(b) Subject to the terms and conditions of the Management
Agreement, Seller will maintain the Purchased Assets in substantially
the same condition and repair as such properties and assets are
maintained as of the date hereof, ordinary wear and
13
tear excepted, and shall take all reasonable steps necessary to
maintain and protect the Purchased Business.
(c) Seller shall cooperate fully with Buyer to keep the
Purchased Assets insured to the same extent as insured on the date
hereof.
(d) Seller shall not take any action or omit to take any
action that could cause (with or without the giving of notice or the
passage of time or both) the breach, default, acceleration, amendment,
termination or waiver of or under the Purchase Agreement or the
imposition of any lien, encumbrance, mortgage or other claim or charge
against the Purchased Assets.
(e) Seller will maintain its books, accounts and records
in accordance with good business practice and generally accepted
accounting principles consistently applied.
(f) Seller shall not take any action that would cause its
representations and warranties set forth herein not to be true and
correct at and as of the Closing Date as if made at and as of such
time.
(g) Seller shall not do any of the following without the
prior written, consent of the President of TRSG:
(1) other than as approved by Buyer pursuant to
the Management Agreement, and for amounts due to Worksite
Employees by contract, make any distributions or payments to
any person of funds from the operations of the Purchased
Business;
(2) Open or close any bank accounts relating to
the Purchased Business;
(3) Withdraw any funds from any bank account
listed on Schedule 7.6(g)(iii) attached hereto;
(4) Enter into a contract relating in any way to
the Purchased Business;
(5) Hire any employee without the prior, written
approval of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President of Buyer;
(6) Other than as required to process and
deliver payroll to Worksite employees pursuant to a client
invoice for which the client has provided funds for such
payroll, transfer any funds from a bank account of the
Purchased Business, or Seller in any manner whatsoever,
including, but not limited to, via check, draft, money order,
wire, or ACH;
(h) Seller shall continue to employ all employees who
work at a client location who are subject to a written agreement
between Seller and a client ("Worksite Employee"). Although Seller will
outsource operational tasks to Buyer pursuant to the Management
Agreement, Seller shall continue to be responsible to process the
payroll of
14
all Worksite Employees, collect and remit payroll taxes of the Worksite
Employees, and comply with all terms and conditions of all client
contracts, all subject to the terms and conditions of the Management
Agreement; or
(i) Cause or allow any of the Purchased Assets to become
encumbered or subject to any lien or security interest of any kind.
In the event that Seller fails to comply with any of the requirements of Section
7.5, Buyer must provide Seller with notice of such violation and give Seller a
10 day cure period which if not resolved after such cure period, Buyer, in its
sole discretion, shall be entitled to terminate the Purchase Agreement and all
other agreements relating thereto and/or offset any losses, costs, expenses, and
liabilities caused by such non-compliance from the Promissory Note.
ARTICLE VIII
COVENANTS OF BUYER
8.1 CONFIDENTIALITY; RETURN OF DOCUMENTS. Unless and until the
transactions contemplated by this Agreement are consummated on the Closing Date
(or other date mutually agreed upon by the parties hereto), Buyer will keep in
confidence all proprietary and financial information of Seller including
information concerning its customers, and will not, except to the extent
required by law, financing and securities disclosure requirement or to the
extent any such information is otherwise publicly available or received from a
third party not affiliated with Seller, without the prior written consent of
Seller, reveal any such financial or proprietary information to any third party
other than affiliates or representatives of Buyer and potential lenders,
investors and other providers of funds each of whom shall agree to be bound by
the same restrictions with respect to confidentiality imposed on Buyer
hereunder. If the transactions contemplated by this Agreement are not
consummated, Buyer will return to Seller, at Seller' request, all documents
supplied to Buyer by Seller and notes derived therefrom, pursuant to the
provisions of this Agreement.
8.2 FUNDING ADVANCES TO SELLER PRIOR TO EFFECTIVE DATE. In the
event that, based on the performance of the Purchased Business between the
Closing Date and the Effective Date, Seller experiences a net loss from
revenues, Buyer agrees to provide funds, the amount to be in the sole discretion
of Buyer, to cover any such losses.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION.
(a) Seller Indemnity. Seller will indemnify, defend and
save Buyer harmless from, against, for and in respect of the following:
(1) any and all liabilities and obligations of
Seller (whether absolute, accrued, contingent or otherwise and
whether a contractual, tax or any other type
15
of liability, obligation or claim) not specifically assumed by
Buyer pursuant to this Agreement and the Assumption Agreement;
(2) any damages, losses, obligations,
liabilities, claims, actions or causes of action sustained or
suffered by Buyer and arising from a breach of any material
representation or warranty of Seller contained in or made
pursuant to this Agreement (including the Schedules and
Exhibits attached hereto), or in any certificate, instrument
or agreement delivered by Seller pursuant hereto or in
connection with the transactions contemplated hereby;
(3) any damages, losses, obligations,
liabilities, claims, actions or causes of action sustained or
suffered by Buyer and arising from a breach of any material
covenant or agreement of Seller contained in or made pursuant
to this Agreement; and
(4) all reasonable costs and expenses
(including, without limitation, reasonable attorneys',
accountants', and other professional fees and expenses)
incurred by Buyer in connection with any action, suit,
proceeding, demand, investigation, assessment or judgment
incident to any of the matters indemnified against under this
Section 9.2(a).
(b) Buyer's Indemnity. Buyer will indemnify, defend and
save Seller harmless from, against, for and in respect of the
following:
(1) any liabilities or obligations of Seller
assumed by Buyer pursuant to this Agreement and the Assumption
Agreement;
(2) any damages, losses, obligations,
liabilities, claims, actions or causes of action sustained or
suffered by Seller and arising from a breach of any
representation or warranty of Buyer contained in or made
pursuant to this Agreement or in any certificate, instrument
or agreement delivered by it pursuant hereto or in connection
with the transactions contemplated hereby;
(3) any damages, losses, obligations,
liabilities, claims, actions or causes of action sustained or
suffered by Seller and arising from a breach of any covenant
or agreement of Buyer contained in or made pursuant to this
Agreement; and
(4) all reasonable costs and expenses
(including, without limitation, reasonable attorneys',
accountants', and other professional fees and expenses)
incurred by Seller in connection with any action, suit,
proceeding, demand, investigation assessment or judgment
incident to any of the matters indemnified against under this
Section 9.2(b).
9.2 THIRD PARTY Claims. With respect to claims resulting from
assertion of liability by third parties, the obligations and liabilities of the
party responsible for indemnification (the "Indemnifying Party") hereunder with
respect to indemnification claims by the party entitled to indemnification (the
"Indemnified Party") will be subject to the following terms and conditions:
16
(a) The Indemnified Party will give prompt written notice
to the Indemnifying Party of any assertion of liability by a third
party which might give rise to a claim by the Indemnified Party against
the Indemnifying Party based on the indemnity agreements contained in
Section 9.2 hereof, stating the nature and basis of said assertion and
the amount thereof, to the extent known.
(b) If any action, suit or proceeding is brought against
the Indemnified Party, with respect to which the Indemnifying Party may
have liability under the indemnity agreement contained in Section 9.2
hereof, the action, suit or proceeding will, upon the written agreement
of the Indemnifying Party that it is obligated to indemnify under the
indemnity agreement contained in Section 9.2 hereof, be defended
(including all proceedings on appeal or for review which counsel for
the defendant shall deem appropriate) by the Indemnifying Party at the
expense of the Indemnifying Party. The Indemnified Party will have the
right to select legal counsel in any such case, and the fees and
expenses of such counsel will be at the expense of the Indemnifying
Counsel. If the Indemnifying Party does not agree, promptly after the
notice to it provided in subsection (a) above, that it is obligated to
indemnify under the indemnity agreement contained in Section 9.2
hereof, that such Indemnified Party reasonably concludes that such
action, suit or proceeding involves to a significant extent matters
beyond the scope of the indemnity agreement contained in Section 9.2
hereof, or that there may be defenses available to it which are
different from or additional to those available to the Indemnifying
Party, the Indemnifying Party will not have the right to direct the
defense of such action, suit or proceeding on behalf of the Indemnified
Party and that portion of such fees and expenses reasonably related to
matters covered by the indemnity agreement contained in Section 9.2
hereof will be borne by the Indemnifying Party. The Indemnified Party
will be kept fully informed of such action, suit or proceeding at all
stages thereof whether or not it is so represented. The Indemnifying
Party will make available to the Indemnified Party and its attorneys
and accountants all books and records of the Indemnifying Party
relating to such proceedings or litigation and the parties hereto agree
to render to each other such assistance as they may reasonably require
of each other in order to ensure the proper and adequate defense of any
such action, suit or proceeding.
(c) The Indemnifying Party will not make any settlement
of any claims without the written consent of the Indemnified Party,
provided, that if the Indemnified Party fails to consent to a
settlement of any claim, demand, suit or cause of action described in
this Section 9.3, the Indemnifying Party's obligation to indemnify an
award of damages shall in no event exceed the amount that the
Indemnifying Party would have been required to indemnify for had such
settlement offer been accepted by the Indemnified Party.
ARTICLE X
MISCELLANEOUS
10.1 EXPENSES; TRANSFER TAXES. All fees, costs and expenses
incurred by Seller in connection with, relating to or arising out of the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby, including, without limitation, legal and
accounting fees and expenses, will be borne by Seller. All fees and expenses
17
incurred by Buyer in connection with this Agreement will be borne by Buyer. All
registration, recording or transfer taxes which may be payable in connection
with the transactions contemplated by this Agreement will be paid by Buyer.
10.2 PARTIES IN INTEREST. This Agreement is not assignable by
either Buyer or Seller without the prior written consent of the other, except
that without relieving Buyer of any of its obligations under this Agreement,
Buyer may assign this Agreement to any subsidiary or affiliate of Buyer. Subject
to the foregoing, this Agreement will be binding upon, inure to the benefit of,
and be enforceable by, the respective successors, heirs, legal representatives,
and assigns of the parties hereto. This Agreement constitutes an agreement among
the parties hereto and none of the agreements, covenants, representations or
warranties contained herein is for the benefit of any third party not a party to
this Agreement.
10.3 ENTIRE AGREEMENT; AMENDMENTS. This Agreement (including the
Schedules and Exhibits attached hereto) contains the entire understanding of the
parties with respect to its subject matter. This Agreement supersedes all prior
agreements and understandings between the parties with respect to the subject
matter hereof. This Agreement may be amended only by a written instrument duly
executed by the parties, and any condition to a party's obligations hereunder
may only be waived in writing by such party.
10.4 HEADINQS. The article and section headings contained in this
Agreement are for reference purposes only and will not affect in any way the
meaning or interpretation of this Agreement.
10.5 NOTICES. All notices, claims, certificates, requests, demands
and other communications hereunder will be in writing and shall be deemed given
if delivered personally, if mailed (by registered or certified mail, return
receipt requested and postage prepaid), if sent by reputable overnight courier
service for next business day delivery, or if sent by facsimile transmission, as
follows:
IF TO SELLER: WITH A COPY TO:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
YourStaff SolutionsTM ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, LLC
▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇ ▇▇▇▇▇
IF TO BUYER: WITH COPY TO:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Asmara Services II, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. Any such
communication will be effective on the date of receipt (or, if received on a
non-business day, on the first business day after the date of receipt).
18
10.6 PUBLICITY. The parties agree that, except as otherwise
required by law, the issuance prior to Closing of any reports, statements or
releases pertaining to this Agreement or the transactions contemplated hereby
will require the prior, written consent of the Buyer. Buyer agrees to provide to
Seller a copy of any written materials that Buyer intends to publish regarding
the Asset Purchase and Buyer has 48 hours to provide its comments.
10.7 COUNTERPARTS. This Agreement may be signed in any number of
counterparts and by different parties in separate counterparts, each of which
will be deemed an original instrument, but all of which together will constitute
one agreement. This Agreement will become effective when one or more
counterparts have been signed by Seller and Buyer, and delivered to Buyer and
Seller, respectively. Any party may deliver an executed copy of this Agreement
(and an executed copy of any documents contemplated by this Agreement) by
facsimile transmission to another party, and such delivery will have the same
force and effect as any other delivery of a manually signed copy of this
Agreement (or such other document).
10.8 GOVERNING LAW. This Agreement will be governed by and
construed in accordance with the internal laws of the Commonwealth of
Pennsylvania.
10.9 GENDER. Any reference to a particular gender will be deemed to
include all other genders unless the context otherwise requires.
10.10 WAIVERS. Any provision of this Agreement may be waived only by
a written instrument executed by the party to be charged with such waiver. The
waiver by any party hereto of a breach of any provision of this Agreement will
not operate or be construed as a waiver of any subsequent breach.
10.11 DEFINED TERMS. Throughout this Agreement various terms have
been defined by being enclosed in quotation marks, usually in parentheses, and
used with their initial letters capitalized. Unless the context otherwise
requires, such defined terms will have their designated meaning whenever used in
this Agreement or any attached schedules. Unless an express reference is made to
a different document, all references to a Section or Article shall be understood
to refer to the indicated Section or Article of this Agreement, and all
references to a Schedule or Exhibit shall be understood to refer to the
indicated Schedule or Exhibit attached to this Agreement.
10.12 TIME. Time is of the essence to the performance of the
obligations set forth in this Agreement.
10.13 CONSTRUCTION. This Agreement is the result of negotiations
between Seller and Buyer. No provision of this Agreement shall be construed
against a party because of such party's role as the drafter of the provision.
10.14 ATTORNEYS' FEES. If there is any litigation related to this
Agreement or the transactions contemplated by this Agreement, each party will be
responsible for its own costs and expenses (including, without limitation,
reasonable attorneys', accountants' and other professional fees and expenses).
19
DEFINITIONS
Definitions. As used herein, the following terms have the meanings set forth
below:
"Actions or Proceedings" means any action, suit, proceeding, arbitration or
investigation or audit by any Governmental or Regulatory Authority.
"Affiliate" means any Person that directly, or indirectly through one or more
intermediaries, controls or is controlled by or is under common control with the
Person specified.
"Books and Records" means all documents, instruments, papers, books and records,
books of account, files and data (including customer and supplier lists),
catalogs, brochures, sales literature, promotional material, certificates and
other documents used in or associated with the conduct of the Business or the
ownership of the Company's property, including, without limitation, financial
statements, Tax Records (including Tax Returns), ledgers, minute books, copies
of Contracts, Licenses and Permits, operating data and environmental studies and
plans.
"Business" means the business and goodwill of the Company as a going concern.
"Claim" means any action, suit, proceeding, hearing, investigation, litigation,
charge, complaint, claim or demand.
"Code" means the Internal Revenue Code of 1986, as amended.
"Contract" means any agreement, lease, evidence of Indebtedness, mortgage,
indenture, security agreement or other contract or agreement (whether written or
oral).
"Disclosure Schedule" means the schedules attached hereto and incorporated
herein by reference of the Seller and the Buyer as appropriate in the context
and as referenced throughout this Agreement.
"GAAP" means generally accepted accounting principles consistently applied (as
such term is used in the American Institute of Certified Public Accountants
Professional Standards) as of the date of the Financial Statements
"Governmental or Regulatory Authority" means any court, tribunal, arbitrator,
authority, agency, commission, official or other instrumentality of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision.
"Indebtedness" of any Person means any obligations of such Person (a) for
borrowed money, (b) evidenced by notes, bonds, indentures or similar
instruments, (c) for the deferred purchase price of goods and services (other
than trade payables incurred in the ordinary course of business), (d) under
capital leases and (e) in the nature of guarantees of the obligations described
in clauses (a) through (d) above of any other Person.
"Intellectual Property" means all know-how, patents, copyright registrations,
trademark and service ▇▇▇▇ registrations, applications for any of the foregoing,
whether or not registered, all designs, copyrights, trademarks, service marks,
trade names, secret formulae, trade secrets, secret processes, computer programs
and confidential information, including all rights to any such property that is
owned by and licensed from others and any goodwill associated with any of the
above.
"Knowledge of the Seller," "the Seller's Knowledge," or other like words mean
the knowledge of the Company, Shareholders and the individuals set forth in
Section 9.1 of the Disclosure Schedule after due inquiry.
"Laws" means all laws, statutes, rules, regulations, ordinances and other
pronouncements in effect on the date of this Agreement having the effect of law
of the United States, any foreign country or any domestic or foreign state,
county, city or other political subdivision or of any Governmental or Regulatory
Authority.
20
"Liabilities" means all Indebtedness and other liabilities, including, without
limitation, strict liability, and obligations to pay, perform or discharge any
costs, expenses and obligations of a Person (whether known, unknown, absolute,
accrued, contingent, fixed or otherwise or whether due or to become due) and all
costs, expenses and obligations related to any of the foregoing.
"Licenses" means all licenses, permits, certificates of authority,
authorizations, approvals, registrations, franchises, and similar consents
granted or issued by any Person and are associated with or necessary to operate
the Company and/or used in connection with the Business.
"Liens" means any mortgage, pledge, assessment, security interest, lease, lien,
adverse claims, levy, charge, option, right of first refusal, charges,
debentures, indentures, deeds of trust, easements, rights-of-way, restrictions,
encroachments, licenses, leases, permits, security agreements, or other
encumbrance of any kind and other restrictions or limitations on the use or
ownership of real or personal property or irregularities in title thereto or any
conditional sale Contract, title retention Contract or other Contract to give
any of the foregoing.
"Material Adverse Effect" means, with respect any Person, material adverse
changes in the business, assets, financial condition, results or prospects of
operations of such Person.
"Order" means any writ, judgment, decree, injunction or similar order of any
Governmental or Regulatory Authority (in each such case whether preliminary or
final). "Related Agreements" means any other agreement, certificate or similar
document executed pursuant to this Agreement.
"Taxes" means any and all taxes, fees, levies, duties, tariffs, import and other
charges, imposed by any taxing authority, together with any related interest,
penalties or other additions to tax, or additional amounts imposed by any taxing
authority, and without limiting the generality of the foregoing, shall include
net income taxes, alternative or add-on minimum taxes, gross income taxes, gross
receipts taxes, sales taxes, use taxes, ad valorem taxes, value added taxes,
franchise taxes, profits taxes, license taxes, transfer taxes, recording taxes,
escheat taxes, withholding taxes, payroll taxes, employment taxes, excise taxes,
severance taxes, stamp taxes, occupation taxes, premium taxes, property taxes,
windfall profit taxes, environmental taxes, custom duty taxes or other
governmental fees or other like assessments or charges of any kind whatsoever,
and any transferee or secondary liability in respect of any tax (whether imposed
by Law, contract or otherwise).
"Tax Returns" means all reports, estimates, declarations of estimated tax,
information statements and returns relating to, or required to be filed in
connection with, any Taxes, including information returns or reports with
respect to backup withholding and other payments to third parties. Other Terms.
Other terms may be defined elsewhere in the text of this Agreement and shall
have the meaning indicated throughout this Agreement.
Other Definitional Provisions.
------------------------------
The words "hereof," "herein" and "hereunder," and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole
and not any particular provision of this Agreement.
The terms defined in the singular shall have a comparable meaning when
used in the plural, and vice versa.
The terms defined in the neuter or masculine gender shall include the
feminine, neuter and masculine genders, unless the context clearly indicates
otherwise.
For purposes of this Agreement, "ordinary course of business" shall
include, without limitation negotiating contract renewals consistent with past
practices.
(Signature Page to Follow)
21
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered on the date first above written.
SELLER: BUYER:
------- ------
ROSSAR HR, LLC THE RESOURCING SOLUTIONS GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Managing Member President
40% Owner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Member
60% Owner
The following individuals are signing this Agreement only in regards to the
covenants made in Section 7.4 herein:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇
------------------------------ ----------------------------------
22
MANAGEMENT AGREEMENT
THIS MANAGEMENT AGREEMENT (the "Agreement") is entered into as of
September , 2004, by and between ROSSAR HR, LLC, a Pennsylvania Limited
Liability corporation ("Client"), and The Resourcing Solutions Group, Inc, a
Nevada corporation ("TRSG"). All terms used but not otherwise defined herein
shall have the meaning assigned to them in that certain Asset Purchase Agreement
dated September , 2004, by and between Client and TRSG (the "Purchase
Agreement"). This Agreement shall be executed on the Closing Date.
WHEREAS, Client and TRSG have executed the Purchase Agreement whereby
TRSG has agreed, pursuant to the terms and conditions of the Purchase Agreement,
to purchase substantially all of the operating assets of Client, effective
January 1, 2005;
WHEREAS, the parties desire that between the Closing Date and the
Effective Date, TRSG should manage the Purchased Business and employ the
necessary full and part-time non-Worksite employees of Client;
WHEREAS, Client desires, and TRSG has agreed to provide, certain
management services to Client as a result of the execution of the parties of the
Purchase Agreement; and
WHEREAS, Client and TRSG desire to set forth herein the terms under
which the services will be provided.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
promises set forth below and other good and valuable consideration, the receipt
and legal sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
1 SERVICES
1.1 DESCRIPTION OF SERVICES. TRSG agrees during the term of this Agreement
to provide services as described herein relating to the operations and
management of the Purchased Business as more fully described in Exhibit A, which
is incorporated herein by reference (collectively, the "Services"). Client
understands that as a result of this Agreement and the Services provided herein,
Client is agreeing to delegate completely to TRSG the responsibility to manage
the operations of the Purchased Business, and further understands that Client is
agreeing to follow the directions and instructions of TRSG with respect to the
management of the Purchased Business. The parties agree and understand that TRSG
is not assuming any obligations or liabilities of Client by way of this
Agreement.
Any services not specifically described in Exhibit "A" are not included in the
definition of "Services". Any additional services shall be performed at a cost
that is mutually agreed upon by Client and TRSG.
1.2 INDEPENDENT CONTRACTOR. TRSG and its subcontractors, employees and
agents are independent contractors as to Client for all purposes related to and
at all times during this Agreement. TRSG has the responsibility for, and control
over, the means and details of performing the Services in accordance with this
Agreement, and all Services performed by such persons shall be controlled and
supervised exclusively by TRSG, other than as stated otherwise in this
Agreement, subject to the ability of Client to identify deficiencies of any such
Service provided. Other than where direct payments shall be paid by Client
directly to third party service providers, Client will incur no responsibility
or obligation to subcontractors, employees and agents or other parties utilized
by TRSG to perform Services.
1.3 SCOPE OF SERVICES. During the term hereof, TRSG shall devote such
resources as are necessary for the rendering of the Services.
1.4 INSURANCE COVERAGE. Client shall maintain all insurance coverage(s) in
effect as of the Closing Date relating to the Purchased Business, including, but
not limited to the insurance policies listed on Exhibit "B" attached hereto and
made a part hereof, and Client shall not reduce, cancel or non-renew any such
insurance coverage during the Term of this Agreement. Although Client shall be
responsible for paying for such insurance, TRSG, pursuant to its duties under
this Agreement, shall be responsible for remitting the funds on behalf of Client
for such insurance.
1.5 TAXES. TRSG shall have no responsibility or obligation under this
Agreement to provide payroll to any employees reported under the Federal
Employer Identification Number ("FEIN") of Client or one of its affiliates, or
collect any payroll taxes for such employees of Client or one of its affiliates.
However, TRSG shall have the responsibility under this Agreement to make any and
all tax payments on behalf of Client that are due based on amounts received from
customers of Client .
2 COMPENSATION
2.1 FEES AND EXPENSES. For and in consideration of the Services to be
provided by TRSG, and subject to the limitations set forth below, TRSG shall be
paid by Client via TRSG collecting the fees as described in Exhibit "C" attached
hereto, and incorporated herein by reference. In addition to the fees described
in Exhibit "C", TRSG shall collect for reimbursement for all out-of-pocket costs
reasonably and directly incurred by TRSG to third parties (other than Affiliates
of TRSG) as a result of the performance of the Services in the ordinary course
of business.
2.2 PAYMENT PROCEDURES. No more frequently than monthly throughout the term
of this Agreement, TRSG shall submit a summary of its Fees under this Agreement
to Client. Payments shall be made as described in Exhibit "C" attached hereto.
3 TERM AND TERMINATION
3.1 TERM. Subject to Section 3.2 below, the term of this Agreement begins
on the Closing Date and shall end on either the Effective Date, or if the Asset
Purchase contemplated in the Purchase Agreement does not occur, or the Purchase
Agreement
-2-
is terminated, then TRSG shall provide Client with 30 days written notice of
termination (the "Termination Date"). TRSG shall be required to perform all of
the Services up to the Termination Date unless otherwise instructed by Client.
3.2 TERMINATION. No Termination of Agreement by Client. So long as the
Purchase Agreement is in effect and the Effective Date has not yet occurred,
Client may not terminate this Agreement. If the Purchase Agreement has been
terminated, then Client may terminate this Agreement by providing to Buyer 10
days written notice of termination. Sellers shall be obligated to pay all fees
earned under this Agreement through the effective date of such a termination.
4 INDEMNIFICATION
4.1 INDEMNIFICATION BY TRSG. TRSG shall indemnify, defend and hold harmless
Client, and its directors, officers, employees, and agents from and against any
and all losses, claims, actions, damages, liabilities, costs and expenses
(including reasonable attorneys' fees and court costs) caused by any act or
omission of TRSG or its agents, employees, representatives or contractors under
this Agreement.
4.2 INDEMNIFICATION BY CLIENT. Client shall indemnify, defend and hold
harmless TRSG, and its directors, officers, employees and agents from and
against any and all losses, claims, actions, damages, liabilities, costs and
expenses (including reasonable attorneys' fees and court costs) caused by any
act or omission by Client or its agents, employees, representatives or
contractors (other than TRSG) under this Agreement. including, but not limited
to, any act or omission relating to Client's employment of Worksite Employees,
Client's breach of contract with a customer of Client, or any failure of Client
to pay premiums, collect and remit taxes, or administer any employee welfare
benefit or other plan, if directed by TRSG to do so.
4.3. PROCEDURE. The procedure for seeking indemnification under this
Agreement shall be governed by and implemented in accordance with Section 10.3
of the Purchase Agreement.
5 MISCELLANEOUS
5.1 NON-WAIVER. No failure of any party to exercise any power or right
under this Agreement or to insist on compliance with any obligation under this
Agreement, and no custom or practice of any other party that varies from the
terms of this Agreement, shall waive the right of the first party to demand full
compliance with this Agreement.
5.2 SEVERABILITY. In the event any court holds one or more clauses of this
Agreement void or unenforceable, TRSG and Client shall treat that clause or
those clauses as separate and shall treat the remainder of this Agreement as
valid and in full force and effect. The terms of this Agreement shall be
equitably adjusted to compensate the appropriate party for any consideration
lost because of the elimination of the clause or clauses. Should any term of
this Agreement be considered void or inconsistent with Pennsylvania law, then
such term shall be void and any inconsistency
-3-
shall be construed and governed by Pennsylvania law to the extent the term is
void or inconsistent.
5.3 GOVERNING LAW. This Agreement shall be interpreted in accordance with
the Commonwealth of Pennsylvania applicable to contracts made and performed (or
as if they were made and performed) entirely in Pennsylvania.
5.4 ENTIRE AGREEMENT. This Agreement and the Purchase Agreement constitute
the entire agreement of the parties regarding the subject matter hereof, is a
complete, exclusive statement thereof, and supersedes any and all prior or
contemporary agreements and understandings.
5.5 NOTICE. Any notice or other communication required to be given pursuant
to this Agreement shall be deemed duly given if delivered personally or by
overnight delivery service or marked by certified or registered mail, return
receipt requested and postage prepaid, or sent by facsimile addressed to the
relevant party at its address and facsimile number as follows:
TO THE BUYER: WITH A COPY TO:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
President Law Offices of ▇▇▇▇▇ ▇▇▇▇▇▇, P.A.
TRSG 550 North Reo Street
1080 Industrial Drive Suite 300
Pineville, North Carolina ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
TO THE CLIENT: WITH A COPY TO:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
YourStaff Solutions(TM) ▇▇▇▇▇ ▇▇▇▇, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or facsimile number as any party may provide to the
other party in writing. All such notices and other communications shall be
effective on the date of delivery, mailing, or facsimile transmission, as the
case may be.
5.6 AMENDMENT. No modifications of this Agreement shall be valid unless
made in writing and signed by each of the parties hereto.
5.7 ASSIGNMENT. Neither party shall assign, in whole or in part, any of its
rights, obligations or benefits under this Agreement without the prior written
consent of the other party, which consent shall not be unreasonably withheld.
-4-
5.8 SURVIVAL. The provisions of Section 5 of this Agreement and this
Section 5.8 shall survive the expiration or termination of this Agreement, and
shall be enforceable thereafter to the full extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE RESOURCING SOLUTIONS GROUP, INC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
PRESIDENT
ROSSAR HR, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
MANAGING MEMBER
-5-
EXHIBIT "A" TO MANAGEMENT AGREEMENT
1 SERVICES
TRSG shall provide the following Services to Client during the Term of the
Agreement:
1. Management of the day-to-day activities and operations of the
Purchased Business. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as President of TRSG, shall
direct all operations relating to the Purchased Business, and make
all day-to-day decisions regarding the operations of the Purchased
Business.
2. As part of the Services, TRSG shall be authorized to collect, on
behalf of Client, all revenues of Client generated from the
Purchased Business, and TRSG shall, on behalf of Client, pay and
remit all obligations of Client.
3. Provide management, oversight and consulting advice regarding all
strategic and operational decisions affecting the Purchased
Business.
4. Direct the employees of the Client, including the sole right to
hire and fire the employees of Client.
All Services provided as described herein shall be on behalf of Client and as
agent for Client. TRSG shall have no liability or responsibility for any
obligations or liabilities of Client as a result of this Management Agreement.
i
EXHIBIT "B" TO MANAGEMENT AGREEMENT
2 INSURANCE CONTRACTS AND POLICIES
Erie Insurance Exchange General Liability
(NEED ALL) (i.e., WC, DENTAL, VISION, HEALTH, ETC.)
-ii-
EXHIBIT "C" TO MANAGEMENT AGREEMENT
3 FEES
In exchange for the Services described herein, Client agrees to pay the
following fees:
Pursuant to the Management Agreement, TRSG is authorized to collect, on behalf
of Client, all revenues of Client and to pay and remit all obligations of
Client. Each month, TRSG shall collect such revenue and pay and remit such
obligations of Client, and to the extent there is earnings before interest,
taxes, depreciation, and amortization ("EBITDA") realized by Client, TRSG shall
collect 100% of such EBITDA as its fees under this Agreement directly from the
revenue it collects on behalf of Client each month. TRSG shall monthly submit an
accounting of such EBITDA to Client.
Unless otherwise provided under the Purchase Agreement, TRSG shall have no
responsibility for any obligations or liabilities of Client in providing the
Services under the Management Agreement.
-iii-
Exhibit 3.2 to
Asset Purchase Agreement
PROMISSORY NOTE
$272,000.00 SEPTEMBER 21, 2004
FOR VALUE RECEIVED, the undersigned, THE RESOURCING SOLUTIONS GROUP,
INC ("Maker"), a Nevada corporation, hereby promises to pay to the order of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual and resident of the State of Pennsylvania, the
aggregate, principal sum of $272,000.00, together with interest on the unpaid
principal balance, in accordance with the schedule attached hereto and
incorporated herein.
1. The principal and interest indebtedness evidenced hereby shall be a
payable in accordance with Schedule 1 attached hereto and made a part hereof.
2. All payments on account of the indebtedness represented by this Note
shall be applied first to accrued and unpaid interest and the remainder to
principal. This Note may be prepaid by Maker at any time, in whole or in part,
without premium or penalty There shall be no default under paragraph 1(a) unless
the required amount is not received by the holder of this Note by the tenth day
of the month.
3. Payments shall be made to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other address as the holder of this Note may
designate in writing.
4. The holder of this Note agrees and understands that payments due
hereunder are subject to set off under the terms of that certain Asset Purchase
Agreement between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Maker, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and Rossar HR,
LLC (the "Purchase Agreement"), and that the terms of the Purchase Agreement are
incorporated herein by reference and made a part hereof. In addition, holder
understands that, in addition to the events of cancellation described in
paragraph six herein, this Promissory Note is also subject to cancellation under
certain circumstances as described more fully in the Purchase Agreement. On any
transfer of this Note by holder or by any subsequent transferee, the transferee
will become vested with all rights, benefits and privileges of holder under this
Note and by law provided, as well as all obligations, conditions, and terms
described herein and in the Purchase Agreement, including, but not limited to,
the rights of set off and cancellation of Maker. The term "holder" will mean
each subsequent transferee or transferees. All parties to this Note jointly and
severally waive presentment for payment, demand, protest, notice of protest and
notice of dishonor
5. In the event of a default by Maker under this Note or the Security
Agreement, the holder of this Note shall have the following rights: (a) to
enforce one or more remedies available to it under law, equity or hereunder, and
such action shall not operate to stop or prevent it from pursuing any further
remedy which it may have; (b) to declare the entire unpaid balance due at any
time; (c) to impose a late charge equal to five percent (5%) of the unpaid
amount if any payment to be made hereunder is not received in full by the due
date; and (d) to increase the rate of interest applicable to
the entire unpaid principal balance of this Note by an increment of an
additional five percent (5%) per annum, unless such increase exceeds the maximum
increase permitted by applicable law in such circumstances, in which event said
rate of interest shall be increased by that increment which is the maximum
increase permitted by law in such circumstances.
6. This Promissory Note shall automatically terminate and be cancelled
upon the occurrence of any of the following events: (i) the death of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ within five years of the date of this Promissory Note; (ii) failure of
holder or her assigns to pay each installment of the Loans as required by the
terms of the Loans described in Schedule 1 attached hereto, or a default under
the terms of the Loans; and (iii) a breach of the Purchase Agreement
(collectively referred to as an "Event of Default"). Maker shall provide written
notice of any such Event of Default to holder, and this promissory Note shall
terminate and be cancelled as of the date of such notice. Maker shall have no
further obligations whatsoever under this Promissory Note after providing the
notice described herein.
7. The acceptance by the holder of this Note of any partial payment made
hereunder after the due date of any installment under this Note shall not
establish a custom or waive any rights of said holder to enforce prompt payment
hereof. Demand, presentment for payment, protest, and notice of nonpayment and
protest are hereby waived by the undersigned.
8. By exercising or failing to exercise any of its rights, options or
elections hereunder, the holder of this Note shall not be deemed to have waived
any breach or default on the part of Maker or to have released Maker from any of
its obligations hereunder, unless such waiver or release is in writing and
signed by the holder of this Note. In addition, the waiver by the holder of this
Note of any breach hereof or default in payment of any indebtedness secured
hereby shall not be deemed to constitute a waiver of any succeeding breach or
default.
9. All notices, demands, and other communications given hereunder shall be
in writing and shall be sent by overnight courier, to such address as the holder
of this Note or Maker shall have furnished the other in writing, and shall be
deemed to have been given at the time received.
10. All agreements, conditions, and provisions of this Note shall apply to
and bind the successors and assigns of all parties hereto. Every provision
hereof is intended to be severable. If any provision of this Note is determined
by a court of competent jurisdiction to be illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the balance of the
provisions hereof which shall remain binding and enforceable.
11. THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE COMMONWEALTH OF PENNSYLVANIA MAKER HEREBY IRREVOCABLY
CONSENTS TO JURISDICTION IN THE COMMONWEALTH OF PENNSYLVANIA AND VENUE IN THE
COUNTY OF_____________________________________FOR SUCH PURPOSES AND SERVICE OF
PROCESS BY U.S. MAIL AND WAIVES ANY AND ALL RIGHTS TO CONTEST SUCH JURISDICTION
AND VENUE FOR THE PURPOSE OF ENFORCING THIS NOTE AND ALL RELATED DOCUMENTS
DELIVERED IN CONNECTION THEREWITH.
(Signature Page to Follow)
The Resourcing Solutions Group, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Its: President
Exhibit 4.3(b) to
Asset Purchase Agreement
▇▇▇▇ OF SALE AND ASSIGNMENT
KNOW ALL MEN BY THESE PRESENTS, that ROSSAR HR, LLC, a Pennsylvania
limited liability company ("Rossar"), ("Seller") for good and valuable
consideration paid by The Resourcing Solutions Group, Inc., a Nevada limited
liability company ("TRSG" or "Buyer"), the receipt of which is hereby
acknowledged by Seller, do, pursuant to the Asset Purchase Agreement dated
September 21, 2004 between the parties (the "Purchase Agreement"), hereby agree
to transfer, convey and assign to Buyer, its successors and assigns, forever,
the following described property (the "Purchases Assets") effective as of 12:01
a.m. on January 1, 2005 (the "Effective Date"):
(a) all customers of the Purchased Business as named and
described in Schedule 5.7 attached to the Purchase
Agreement;
(b) all furniture, fixtures, and equipment used in the
Purchased Business as set forth in Schedule 1.1(b)
attached to the Purchase Agreement;
(c) All leases as set forth in Schedule 1.1(c) attached
to the Purchase Agreement;
(d) all computer hardware and software as described in
Schedule 1.1(d) attached to the Purchase Agreement;
(e) All licenses used in the Purchased Business,
including, but not limited to, software licenses, as
described, in Schedule 1.1(e) attached to the
Purchase Agreement;
(f) All customer contracts of Sellers as of the Closing
Date as described in Schedule 5.6 attached to the
Purchase Agreement;
(g) The Trade Names and Trademarks (including Service
Marks) of Sellers used in the Purchased Business as
described on Schedule 1.1(g) attached to the Purchase
agreement;
(h) All non-workers compensation deposits relating to the
Purchased Business as described in Schedule 1.1(h)
attached to the Purchase Agreement;
(i) all records and files, including, but not limited to,
property records, purchasing and sales records,
correspondence with suppliers and customers (both
actual and prospective) personnel records, mailing
lists, customer and vendor lists and records used
exclusively in the Purchased Business; and
(j) Cash and cash equivalents generated from the
operation of the Purchased Business, unless
specifically described in Schedule 1.1(j) attached to
the Purchase Agreement.
AS OF THE EFFECTIVE DATE , TO HAVE AND TO HOLD the assets, properties
and rights transferred, conveyed and assigned hereinabove unto Buyer, its
successors and assigns, and for its and their own use forever.
ASSIGNMENT
As of the Effective Date, Seller hereby assigns and transfer to Buyer all of its
rights, title and interest in and to the Purchased Assets, and Buyer accepts the
assignment of the Purchased Assets. The Assignor shall execute whatever other
instruments of conveyance that may be necessary to vest all of its rights in the
Purchased Assets to the Assignee as may subsequently be requested by Buyer.
Seller hereby constitutes and appoints Buyer, its successors and assigns, the
true and lawful attorney of Seller with full power of substitution, in the name
of Buyer, or the name of Sellers, on behalf of and for the benefit of Buyer,
(a) to collect items being transferred, conveyed and assigned
to Buyer as provided herein,
(b) to institute and prosecute, in the name of Seller or
otherwise, all proceedings which Buyer may deem proper in order to
collect, assert or enforce any claim, right or title of any kind in or
to the Purchased Assets,
(c) to defend and compromise any and all actions, suits or
proceedings in respect of any of the Purchased Assets, and
d) to do all such acts and things in relation thereto as Buyer
may deem advisable.
Seller agrees that the foregoing powers are coupled with an interest and shall
be irrevocable by Seller, directly or indirectly, whether by the dissolution of
Seller, or in any manner or for any reason. Seller shall pay to Buyer, without
notice or demand, if and when received, any amounts which shall be received by
Seller the Closing in respect of any assets, properties, rights or business to
be transferred, conveyed and assigned to Buyer as provided herein.
This ▇▇▇▇ of Sale and Assignment shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
The parties agree that although this ▇▇▇▇ of Sale and Assignment has been
executed on the date indicated below, it shall not be effective until the
Effective Date, and no conveyance, transfer, sale, or assignment of the
Purchased Assets shall occur or be effective until the Effective Date. The
parties agree that no further action shall be required to effectuate this ▇▇▇▇
of Sale and Assignment on the Effective Date.
2
All capitalized terms used herein and not otherwise defined herein shall
have the respective meanings ascribed thereto in the Purchase Agreement.
IN WITNESS WHEREOF, Seller has duly executed and delivered this ▇▇▇▇ of
Sale on this 21st day of September, 2004.
------ ---------
ROSSAR HR, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Manager
3
Schedule 4.3(c) to the Asset Purchase Agreement
CERTIFICATE OF COMPLIANCE WITH 42 PENNSYLVANIA STATUTES SS. 788.3
-----------------------------------------------------------------
The undersigned hereby certifies that Rossar HR, LLC has complied with all
requirements of 42 Pennsylvania Statutes ss. 788.3 (Transfer of Assets;
Liability of Purchaser). The undersigned further certifies that all notices
required by 42 Pennsylvania Statutes ss. 788.3 have been filed with the
Pennsylvania Department of Labor and Industry in a timely manner, and that all
unemployment tax contributions have been paid to the Pennsylvania Department of
Labor and Industry and that no amounts are due and owing as of September 21,
2004. The certificate issued by the Pennsylvania Department of Labor and
Industry showing that all reports have been filed and contributions, interest
and penalties paid shall be furnished immediately to Buyer by Seller upon
receipt.
ROSSAR HR, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- ---------------------------------
Signature Print Name
Its: Managing Member
---------------------------------
Exhibit 4.4(c) to
Asset Purchase Agreement
ASSUMPTION AGREEMENT
--------------------
KNOW ALL MEN BY THESE PRESENTS, that THE RESOURCING SOLUTIONS
GROUP, INC. a Nevada corporation ("Buyer"), for and in consideration of the
transfer, conveyance and assignment by ROSSAR HR, LLC, a Pennsylvania Limited
Liability Company, ("Seller"), to Buyer of certain of the assets, properties and
rights of Seller (the "Purchased Business"), pursuant to the Asset Purchase
Agreement dated September 21, 2004 (the "Purchase Agreement"), between Buyer and
Seller and the ▇▇▇▇ of Sale and Assignment and other instruments of transfer,
conveyance and assignment dated as of the date hereof, from Seller to Buyer,
hereby assumes, as of January 1, 2005 (the "Effective Date") the following
liabilities and obligations, and only the following liabilities and obligations,
of Seller:
The liabilities and obligations arising after the Effective Date under
those contracts, licenses, leases, and other written agreements set
forth on Schedules 1.1(c) and (e) and Schedule 5.6 of the Purchase
Agreement.
Anything contained herein to the contrary notwithstanding, except for
those liabilities and obligations specifically assumed by Buyer as aforesaid,
Buyer is not assuming any other liabilities or obligations of Seller or the
Purchased Business, including, but not limited to, the following:
(a) any liabilities and obligations of Seller for Federal, state
or local taxes, fines, interest or penalties (including, without
limitation, franchise, income, personal, real property, sales, use,
unemployment, gross receipts, excise, payroll, withholding or other
taxes);
(b) any claims, demands, liabilities or obligations of any nature
whatsoever which arose or were incurred at or before the Effective
Date, or which are based on any event that occurred or existed at or
before the Effective Date, or which are based on services performed by
Seller at or before the Effective Date, irrespective of when a claim or
demand is made (including if the claim is made after Effective Date)
irrespective of whether the liability or obligation becomes manifest,
after the Effective Date, and regardless of whether or not set forth or
otherwise disclosed on any Schedule attached hereto (whether or not
required to be so set forth or disclosed), including, but not limited
to, that certain claim by Envirotol;
(c) any actions, suits, claims, investigations or legal,
administrative or arbitration proceedings pending or threatened against
Seller;
(d) any liabilities and obligations of Seller for amounts owed to
any person affiliated with Sellers, in his or her capacity as an owner
of Seller;
(e) any liabilities and obligations of Seller existing under an
employment agreement, written or verbal, or relating to in any way
wages, commissions, bonuses, fees, expenses, accrued holiday, vacation
and severance pay;
(f) any liabilities or obligations for payments due or required to
be made under any health, dental, vision, pension, retirement, savings
or other compensation or employee benefit plan maintained by Seller or
any other entity;
(g) any liabilities and obligations of Seller under any contract,
license, lease or other agreement which is not listed on Schedules
1.1(b)-(e) or Schedule 5.6 attached to the Purchase Agreement;
(h) any liabilities relating in any way to an injury to an
employee of Seller;
(i) any liability to pay any amounts under a contract or policy of
insurance ; and
(j) any other liabilities and obligations of Seller not being
specifically assumed by Buyer pursuant to Section 2.1 of the Purchase
Agreement.
This Assumption Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
All capitalized terms used herein and not otherwise defined herein
shall have the respective meanings ascribed thereto in the Purchase Agreement.
IN WITNESS WHEREOF, Buyer has duly executed and delivered this
Assumption Agreement on this September 21, 2004.
THE RESOURCING SOLUTIONS GROUP, INC.
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
ITS: PRESIDENT
EMPLOYMENT AGREEMENT
--------------------
THIS EMPLOYMENT AGREEMENT (the "Agreement") is entered into between
Asmara Services II, Inc. (the "Company" or "Employer"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(the "Employee").
WITNESSETH:
WHEREAS, the Company and Employee desire to enter into this Agreement
to set forth the agreement between them regarding Employee's employment by the
Company;
NOW, THEREFORE, in consideration of the premises and the
covenants, terms and conditions set forth herein, the Company and the Employee
agree as follows:
ARTICLE 1
EMPLOYMENT AND DUTIES
---------------------
1.1 EMPLOYMENT AND DUTIES. The Company agrees to employ the
Employee, and the Employee hereby accepts such employment, in the capacity of
Regional Director (Rossar HR Operations), or in any other equal or higher level
capacity as the Company shall direct from time to time. EMPLOYEE shall report to
the President of the Company, but the Company reserves the right to change the
person to whom EMPLOYEE reports. Except as stated herein, EMPLOYEE shall during
working hours devote her full and undivided time, energy, knowledge, skill and
ability exclusively to the operation, transaction and development of the
Company's business to the exclusion of all other business or sideline interests
unless otherwise agreed to in writing. EMPLOYEE will conscientiously and
diligently perform all required acts and duties to the best of her ability and
in a manner that is satisfactory to the Company in its sole discretion. EMPLOYEE
will faithfully discharge all responsibilities and duties entrusted to her. In
particular, Employee shall initially be responsible for the continuing
operations of the Company's business in the Pennsylvania area, and she shall be
responsible for marketing and servicing business in
Page 1 of 9
the Pennsylvania area for the Company.
1.2 EMPLOYMENT TERM. The Term of this Agreement shall be five
years unless terminated pursuant to Article 7.
ARTICLE 2
COMPENSATION AND BENEFITS
-------------------------
2.1 SALARY. In consideration of the services to be rendered by
EMPLOYEE, the Company shall pay EMPLOYEE compensation as set forth on Exhibit A
attached hereto and forming a part hereof, payable in such installments as the
Company customarily pays other employees of the Company ("Salary"). This
compensation may not be decreased during the term of this Agreement.
2.2 COMMISSION. In addition to the Salary described in Section
2.1, Employee shall be entitled to commissions as described in Exhibit "A"
attached hereto.
2.3 FRINGE BENEFITS. The Company will make available to the
Employee all Company sponsored benefit plans, including but not limited to,
insurance programs, flexible spending accounts, and 401(k) Plan, available to
other executives of the Company or its affiliates. Additionally, the Company
shall pay any premiums for dependent coverages under such plans.
ARTICLE 3
EXPENSES
--------
3.1 EXPENSES. The Employee shall be reimbursed for all reasonable and
prior approved expenses incurred on behalf of the Company in accordance with the
Company's expense reimbursement policy.
Page 2 of 9
ARTICLE 4
CONFIDENTIALITY
---------------
4.1 CONFIDENTIALITY. While employed under this Agreement and for
three (3) years following the termination of her employment, the Employee agrees
to maintain the confidential nature of all trade secrets, including, without
limitation, development ideas, acquisition strategies and plans, financial
information, records, "know-how", methods of doing business, customer, vendor,
supplier, partner, employee and distributor lists and all other confidential
information of the Company. The Employee shall not use (other than in connection
with her employment), in any way whatsoever, such trade secrets except as
authorized in writing by the Company. The Employee shall, upon the termination
of her employment, deliver to the Company any and all records, books, documents
or any other materials whatsoever (including all copies thereof) containing such
trade secrets, which shall be and remain the property of the Company.
4.2 NON-REMOVAL OF RECORDS. All documents, papers, materials,
notes, books, correspondence, drawings and other written and/or computer
generated records relating to the business of the Company which the Employee
shall prepare or use, or come into contact with, shall be and remain the sole
property of the Company and shall not be removed from their respective premises
without the Company's prior written consent.
ARTICLE 5
NON-SOLICITATION, AND NON-INTERFERENCE
--------------------------------------
5.1 COVENANT NOT TO SOLICIT OR SELL TO CUSTOMERS. Employee shall
not, for a period of two years following the termination of this Employment
Agreement, for any reason, directly or indirectly, sell, offer or solicit
Competitive Services, (as defined in Section 5.3), to any current, former or
prospective customer of Rossar, the Company, and their respective
Page 3 of 9
subsidiaries, affiliates or franchisees, without the prior written consent of
the Asmara Services II, Inc. or The Resourcing Solutions Group, Inc. ("TRSG").
5.2 COVENANT NOT TO INTERFERE. Employee shall not, during the
twelve month period immediately following the termination of this Agreement, for
any reason, employ or attempt to employ any employee of Company, TRSG or its
affiliates, or any former employee of Rossar (as of the Effective Date), or
otherwise encourage or attempt to encourage any such person to leave their
respective employment.
5.3 DEFINITIONS. The terms "Closing Date" and "Effective Date"
shall have the same meanings as in that certain asset purchase agreement between
The Resourcing Solutions Group, Inc. and Rossar HR, LLC. of even date herewith.
References to "former" customers shall mean a person that was a customer of the
Company, or any of its affiliates, including, but not limited to, TRSG, or
Rossar after the Closing Date, or a customer of Rossar during the twelve (12)
month period prior to the Closing Date. References to "prospective" customers
shall mean a person to whom Seller, or the Company made a presentation after the
Closing Date, or a person to whom the Seller made a presentation within the
twelve (12) month period prior to the Closing Date. The Term "Competitive
Services" shall include employee leasing services, payroll outsourcing, human
resources advice and outsourcing, temporary staffing services, "temp to hire"
assignments, or what is commonly referred to as payrolling. The term "Company"
as used herein and throughout this Agreement, shall mean Asmara Services, II,
Inc., its parent, and all of its affiliates and subsidiaries, including, but not
limited to, TRSG and Benecorp Business Services, Inc., and all respective
assigns and successors.
5.4 SEVERABILITY. If any covenant or provision contained in
Section 5.1 or 5.2 is determined to be void or unenforceable in whole or in
part, it shall not be deemed to affect or impair the validity of any other
covenant or provision. The parties intend that the covenants
Page 4 of 9
contained in Section 5.1 and 5.2 shall be deemed to be a series of separate
covenants, one for each market area of the Company. Except for geographic
coverage, each such separate covenant shall be deemed identical in terms to the
covenant contained in such Sections. If, in any proceeding a court shall refuse
to enforce all of the separate covenants deemed included in such Sections, then
such unenforceable covenants shall be deemed eliminated from the provisions
hereof for the purpose of such proceedings to the extent necessary to permit the
remaining separate covenants to be enforced in such proceedings.
5.5 RESTRICTIVE COVENANTS IN ASSET PURCHASE AGREEMENT. The
Employee acknowledges that in connection with the purchase of substantially all
of the assets of Rossar HR LLC ("Rossar"), Employee executed an Asset Purchase
Agreement as an owner of Rossar (The "Purchase Agreement"). The Purchase
Agreement contained restrictive covenants wherein Employee agreed not to compete
against TRSG, or solicit its customers or employees for a period of two (2)
years. Employee agrees that the restrictive covenants contained in this
Agreement are separate from the restrictive covenants contained in the Purchase
Agreement, and the parties do not intend to limit in any way the restrictions or
promises made by Employee in the Purchase Agreement by entering into this
Agreement.
ARTICLE 6
REMEDIES
--------
6.1 EQUITABLE REMEDIES. The Employee and the Company agree that
the services to be rendered by the Employee pursuant to this Agreement, and the
rights and interests granted and the obligations to be performed by the Employee
to the Company pursuant to this Agreement, are of a special, unique,
extraordinary and intellectual character, which gives them a peculiar value, the
loss of which cannot be reasonably or adequately compensated in damages in any
action at law, and that a breach by the Employee of any of the terms of the
Agreement will cause
Page 5 of 9
the Company great and irreparable injury and damage. In the event if a breach or
threatened breach of Section 4.1, Section 5.1, or Section 5.2, the Employee
hereby expressly agrees that the Company shall be entitled to the remedies of
injunction, specific performance and other equitable relief to prevent a breach
of the this Agreement.
ARTICLE 7
TERMINATION
-----------
7.1 DEATH. The Employee's employment hereunder shall terminate
upon her death.
7.2 CAUSE. The Company may only terminate the Employee's
employment hereunder for Cause effective immediately upon notice. For purposes
of this Agreement, the Company shall have "Cause" to terminate the Employee's
employment hereunder: (i) if the Employee intentionally engages in conduct which
has caused, or is reasonably likely to cause, substantial and serious injury to
Company; (ii) if the Employee is convicted of a felony involving dishonesty,
breach of fiduciary duty, theft, misappropriation of funds or conversion, as
evidenced by a binding and final judgment, order or decree of a court of
competent jurisdiction; (iii) chronic absenteeism; (iv) abuse of alcohol or
drugs: (v) the willful failure of the Employee to follow the lawful directives
of the President, CEO or the Board of Directors of the Company after adequate
warning and opportunity to cure; and (vi) violation of any restrictive covenant
contained in this Employment Agreement or the Purchase Agreement. Prior to any
termination for Cause by the Company of the Employee's employment under Section
7.2(iii) or (iv) hereunder, the Company shall provide the Employee with written
notice of its intention so to terminate (the "Termination Notice"). The
Termination Notice shall set forth in reasonable detail the grounds for the
termination for Cause. The Company hereby expressly acknowledges and agrees that
the Employee shall be granted a period of thirty (30) days from the date of the
receipt by the Employee of the Termination Notice, in order to remedy any act or
omission of
Page 6 of 9
the Employee which constitutes the grounds for Cause hereunder. Termination For
Cause based on any other ground described in Section 7.2 shall not require a
Termination Notice or opportunity to cure, and shall be effective immediately
upon providing written notice of termination. In the event that Employee is
terminated for Cause, Employer shall have no further obligation to compensate
Employee under this Agreement except for wages and commissions earned through
the date of termination.
7.3 TERMINATION BY EMPLOYEE. Employee may terminate this Agreement
at any time for any reason. If Employee provides to Employer sixty (60) days
prior, written notice of her intent to terminate, Employer shall pay Employee
for such sixty day period in exchange for employee's agreement to facilitate a
transition and provide employer an adequate opportunity to find a replacement.
Otherwise, Employee shall be entitled only to her Salary and any earned
commissions through the date on which she notifies Employer of her termination
of employment.
ARTICLE 8
MISCELLANEOUS
-------------
8.1 NO WAIVERS. The failure of either party to enforce any
provision of this Agreement shall not be construed as a waiver of any such
provision, nor prevent such party thereafter from enforcing such provision or
any other provision of this Agreement.
8.2 SEVERABILITY. The provisions of this Agreement are severable
and if any provision of this Agreement shall be held to be invalid or otherwise
unenforceable, in whole or in part, the remainder of the provisions, or
enforceable parts thereof, shall not be affected thereby.
8.3 SUCCESSORS AND ASSIGNS. The rights and obligations of the
Company under this Agreement shall inure to the benefit of and be binding upon
the successors and assigns of the Company, including the survivor upon any
merger, consolidation or combination of the Company
Page 7 of 9
with any other entity. The employee shall not have the right to assign, delegate
or otherwise transfer any duty or obligation to be performed by him hereunder to
any person or entity, nor to assign or transfer any rights hereunder.
8.4 ENTIRE AGREEMENT. With respect to the terms of Employee's
employment, this Agreement supersedes all prior agreements and understandings
between the parties hereto, oral or written, and may not be modified or
terminated orally. No modification, termination or attempted waiver shall be
valid unless in writing, signed by the party against whom such modification,
termination or waiver is sought to be enforced. This Agreement was the subject
of negotiation by the parties hereto. The parties agree that no prior drafts of
this Agreement shall be admissible as evidence in any proceedings that involves
the interpretation of any provisions of this Agreement.
8.5 GOVERNING LAW AND VENUE. This Agreement shall be governed by
and construed in accordance with the internal laws of the Commonwealth of
Pennsylvania. The exclusive venue to enforce the terms and conditions of this
Agreement shall be Pittsburgh, Pennsylvania.
8.6 SECTION HEADINGS. The section headings contained herein are
for purposes of convenience only and are not intended to define or limit the
contents of said sections.
8.7 FURTHER ASSURANCES. Each party hereto shall cooperate and
shall take such further action and shall execute and deliver such further
documents as may be reasonably requested by any other party in order to carry
out the provisions and purposes of this Agreement.
ARTICLE 9
SURVIVAL
--------
9.1 SURVIVAL. The provision of Articles 4, 5 and 6 of this
Agreement shall survive the termination of this Agreement.
(Signature Page to Follow)
Page 8 of 9
IN WITNESS WHEREOF, the parties hereto have executed this Employment
Agreement this 21st day of September 2004.
FOR THE COMPANY:
ASMARA SERVICES II, INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Page 9 of 9
EXHIBIT "A"
Salary and Commission
SALARY. During the term of this Agreement, Employee shall receive an annual
salary in the amount of $85,000, payable in equal installments in accordance
with the usual payroll periods of the Company.
COMMISSIONS. The Company will pay commissions monthly to Employee based upon the
previous month's performance of sales completed in the state(s) where the
primary locations of Rossar HR, LLC customers were located of as of September
21, 2004 (the "Territory"), in accordance with the following formula.
3% of the increase over the average, monthly gross profit amount in the
Territory for the twelve months immediately preceding the Closing Date (the
"Base Amount"). For purposes of these calculations, the Base Amount shall be
$35,000.
By way of example, if the Company realizes a $60,000 gross profit in the month
of March in the Territory, and the Base Amount is $35,000, then Employee would
be paid, at the end of the second payroll period in April, 3% times $25,000
($750)
Employee shall be entitled to commissions only if earned as described above, and
only if the Employment Agreement is in effect.
i
CERTIFICATE OF RESOLUTIONS OF
ROSSAR HR, LLC
The undersigned hereby certifies the following to The Resourcing Solutions
Group, Inc. ("TRSG"):
1. The undersigned is the duly appointed Manager of Rossar HR, LLC., a
Pennsylvania limited liability company (the "Company").
2. The representations and warranties of Seller contained in the Asset
Purchase Agreement are true and accurate on and as of the Closing Date with
the same force and effect as if made on the Closing Date;
3. Seller has performed and complied with all covenants, obligations and
agreements to be performed or complied with by them on or before the
Closing Date pursuant to the Asset Purchase Agreement;
4. The following resolutions were duly adopted by the Company's Members:
RESOLVED, that in connection with the sale of certain assets of the
Company to TRSG, the following agreements are hereby adopted, ratified
and approved in all respects:
A. Asset Purchase Agreement, to be dated as of September 21, 2004,
by and between the Company and TRSG; and
B. ▇▇▇▇ of Sale and Assignment, to be dated as of September 21,
2004, by and between the Company and TRSG; and
C. Management Agreement, to be dated as of September 21, 2004, by
and between the Company and TRSG; and
RESOLVED, that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Manager of the Company, is hereby
authorized and empowered to execute on behalf of the Company and
deliver each of the above described agreements, together with any
amendments to any such document or agreement, and to take such further
actions and execute such other documents as may be necessary to
consummate the transactions contemplated by the agreements ratified in
the foregoing resolution; and further
RESOLVED, that ▇▇. ▇▇▇▇▇▇▇ is hereby authorized and empowered
to execute on behalf of the Company and deliver to TRSG a Certificate
of Resolutions regarding the foregoing resolutions, in the form
attached hereto.
Dated this 21st day of September, 2004.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Manager
ROSSAR HR, LLC
-------------------
UNANIMOUS CONSENT IN LIEU OF
MEETING OF MEMBERS
------------------
The undersigned, constituting all of the Members of Rossar HR, LLC, a
Pennsylvania limited liability company (the "Company"), hereby consent to the
taking of the following actions without a meeting as of September 21 , 2004:
-------
The following preamble and resolutions are hereby adopted:
The managers of the Company have negotiated with The Resourcing
Solutions Group, Inc., ("TRSG") to sell certain of its assets, including its
office that provides staffing of light industrial, construction, clerical and
other workers Coraopolis, Pennsylvania. These negotiations have resulted in
definitive agreements being prepared to consummate the proposed sale, and the
forms of these agreements have been provided to the Members for review and
approval. The Members, after reviewing the definitive agreements, and
considering other relevant factors, deem it to be in the best interests of the
Company to authorize the Manager of the Company to execute and deliver the
definitive agreements and other documents, and to take such further action as
may be necessary in order to consummate the transactions contemplated by the
definitive agreements.
NOW, THEREFORE, BE IT
RESOLVED, that in connection with the sale of certain assets of the
Company to TRSG, the following agreements are hereby adopted, ratified
and approved in all respects:
A. Asset Purchase Agreement, to be dated as of September 21, 2004,
by and between the Company and TRSG; and
B. ▇▇▇▇ of Sale and Assignment, to be dated as of September 21,
2004, by and between the Company and TRSG; and
C. Management Agreement, to be dated as of September 21, 2004, by
and between the Company and TRSG; and
RESOLVED, that ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Manager of the Company, is hereby
authorized and empowered to execute on behalf of the Company and
deliver each of the above described agreements, together with any
amendments to any such document or agreement, and to take such further
actions and execute such other documents as may be necessary to
consummate the transactions contemplated by the agreements ratified in
the foregoing resolution; and further
RESOLVED, that ▇▇. ▇▇▇▇▇▇▇ is hereby authorized and empowered
to execute on behalf of the Company and deliver to TRSG a Certificate
of Resolutions regarding the foregoing resolutions, in the form
attached hereto.
IN WITNESS WHEREOF, the undersigned, have executed this instrument as
of the date set forth above.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------- --------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Manager ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇, Member
CERTIFICATE OF RESOLUTIONS
OF
THE RESOURCING SOLUTIONS GROUP, INC.
The undersigned hereby certifies the following to Rossar HR, LLC ("Rossar"):
1. The undersigned is the duly appointed President of The
Resourcing Solutions Group, Inc., a Nevada corporation (the "Company").
2. The representations and warranties of Buyer contained in the
Asset Purchase Agreement are true and accurate on and as of the Closing Date
with the same force and effect as if made on the Closing Date.
3. Buyer has performed and complied with all covenants,
obligations and agreements to be performed or complied with by it on or before
the Closing Date pursuant to the Asset Purchase Agreement.
4. The following resolutions were duly adopted by the Company's
Board of Directors:
RESOLVED, that in connection with the sale of certain assets by Rossar
to the Company, the following agreements are hereby adopted, ratified
and approved in all respects:
A. Asset Purchase Agreement, to be dated as of September 21, 2004,
by and between Rossar and the Company; and
B. Assumption Agreement, to be dated as of September 21, 2004, by
and between Rossar and the Company; and
C. Management Agreement, to be dated as of September 21, 2004, by
and between Rossar and the Company; and
D. Promissory Note, to be dated as of September 21, 2004, by and
between Rossar and the Company; and
E. Employment Agreement, to be dated as of September 21, 2004by
and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Company; and
RESOLVED, that ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as President of the Company, is hereby
authorized and empowered to execute on behalf of the Company and
deliver each of the above described agreements, together with any
amendments to any such document or agreement, and to take such further
actions and execute such other
1
documents as may be necessary to consummate the transactions
contemplated by the agreements ratified in the foregoing resolution;
and further
RESOLVED, that ▇▇. ▇▇▇▇▇▇▇▇▇ is hereby authorized and
empowered to execute on behalf of the Company and deliver to Rossar a
Certificate of Resolutions regarding the foregoing resolutions, in the
form attached hereto.
Dated this 21st day of September, 2004.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
2
THE RESOURCING SOLUTIONS GROUP, INC
-------------------
UNANIMOUS CONSENT IN LIEU OF
MEETING OF BOARD OF DIRECTORS
-------------------
The undersigned, constituting all of the members of the Board of
Directors ("Board") of The Resourcing Solutions Group, Inc., a Nevada
corporation (the "Company"), hereby consent to the taking of the following
actions without a meeting as of September 21, 2004:
The following preamble and resolutions are hereby adopted:
The officers of the Company have negotiated with Rossar HR, LLC,
("Rossar") to purchase certain of the assets of Rossar, including its office
that provides staffing of light industrial, construction, clerical and other
workers Coraopolis, Pennsylvania. These negotiations have resulted in definitive
agreements being prepared to consummate the proposed purchase, and the forms of
these agreements have been provided to the Board for review and approval. The
Board, after reviewing the definitive agreements, and considering other relevant
factors, deems it to be in the best interests of the Company to authorize the
President of the Company to execute and deliver the definitive agreements and
other documents, and to take such further action as may be necessary in order to
consummate the transactions contemplated by the definitive agreements.
NOW, THEREFORE, BE IT
RESOLVED, that in connection with the purchase by the Company of
certain assets by Rossar, the following agreements are hereby adopted,
ratified and approved in all respects:
A. Asset Purchase Agreement, to be dated as of September 21, 2004,
by and between Rossar and the Company; and
B. Assumption Agreement, to be dated as of September 21, 2004, by
and between Rossar and the Company; and
C. Management Agreement, to be dated as of September 21, 2004, by
and between Rossar and the Company; and
D. Promissory Note, to be dated as of September 21, 2004, by and
between Rossar and the Company; and
E. Employment Agreement, to be dated as of September 21, 2004by
and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Company; and
RESOLVED, that ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as President of the Company, is hereby
authorized and empowered to execute on behalf of the Company and
deliver each of the above described agreements, together with any
amendments to any such document or agreement, and to take such further
actions and execute such other documents as may be necessary to
consummate the transactions contemplated by the agreements ratified in
the foregoing resolution; and further
RESOLVED, that ▇▇. ▇▇▇▇▇▇▇▇▇ is hereby authorized and
empowered to execute on behalf of the Company and deliver to Rossar a
Certificate of Resolutions regarding the foregoing resolutions, in the
form attached hereto.
IN WITNESS WHEREOF, the undersigned, have executed this instrument as
of the date set forth above.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Director
SCHEDULE 1.1(b)
OFFICE FURNITURE AND FIXTURES
Steel Case Modular Office Set-up
Seven cubical workstations
One Office with door
Fax/work desk
21 Small under the desk two and three drawer workstation filing cabinet
25 Workstation overhead storage flippers
10 Workstation chairs
2 Two-shelf cabinet
================================================================================
6 Two-drawer filing cabinet
4 Four-drawer filing cabinet
2 Five-drawer filing cabinet
1 Five-shelf cabinet
1 Storage cabinet
2 Fire proof filing cabinet
1 Reception desk
1 Credenza
5 Work Tables
1 Three panel white board
1 Conference Table
11 Side Chairs
1 TV with VCR
Miscellaneous Office Essentials
Schedule 1.1(c)
Leases
CAPITAL LEASES
1. Great American Corporation (Inter-Tel) -- phone system lease
2. American Express Business Finance (First Capital Funding)- Accountix software
OPERATING LEASES
1. ABB Business Finance -- Minolta copier
2. Dell Financial Services -- Dell Serve
3. Pitney ▇▇▇▇▇ Credit Corporation -- Postage Meter
OFFICE SPACE LEASE
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates
SCHEDULE 1.1(d) Page 1
SCHEDULE 1.1(d)
COMPUTER HARDWARE AND SOFTWARE
HARDWARE
Payroll Dept: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ monitor
Microsoft wireless keyboard and mouse
APC 300 battery backup
HP LaserJet IV printer
Server: Compaq Presario 1725S Monitor
APC 2200 battery backup
(Dell server listed under the leased equipment
schedule.)
Workstation 1: HP Pavilion mx70 monitor
Keyboard and mouse
APC battery backup
Workstation 2: HP Pavilion 7850 PC
KDS color monitor
Keyboard and mouse
APC battery backup
Workstation 3: Compaq Presario PC
CTX monitor
Keyboard and mouse
APC battery backup
Workstation 4: C/R PC
Color monitor
Keyboard and mouse
APC battery backup
Workstation 5: DTK PC
Samsung Sync Master 15GIi monitor
Keyboard and mouse
APC battery backup
Workstation 6: Acer 50X PC
Color Monitor
Keyboard and mouse
APC battery backup
Laptop: Compaq Presario 1622
Fax Station: Panafax U F770
APC battery backup
Store Location: PSI PC
Color Monitor
Keyboard and mouse
ABS PC
Keyboard and mouse
SCHEDULE 1.1(d) Page 2
SOFTWARE
Microsoft Windows 2000
Accountix PEO Pro Software
Microsoft Office
Professional Crystal Reports
WordPerfect Office 11
Norton Antivirus - Corporate Edition
m-BOP (Micro-Business Solutions Program) ACT!
Goldmine
Achieve
SCHEDULE 1.1 (e)
CUSTOMER LIST
None
Schedule 1.1(g)
Tradenames
YourStaff Solutions(TM)
SCHEDULE 1.1(h)
NON-WORKERS COMPENSATION DEPOSITS
$1,250.00 ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Associates -- Office Space Lease
$1,240.00 Chestnut Ridge Cemetery -- Client Prepayment
$1,006.00 ▇▇▇▇ Design Sales -- Client Prepayment
$2,314.00 State Street Bank -- Client Prepayment
$1,560.00 Weirnet , LLC -- Client Prepayment
SCHEDULE 1.1 (i)
CASH AND CASH EQUIVALENT EXCEPTIONS
None
SCHEDULE 3.3
PURCHASE PRICE ALLOCATION
None
SCHEDULE 5.3
NONCONTRAVENTION EXCEPTIONS
None
SCHEDULE 5.4
ENCUMBRANCES AND LIENS
None
SCHEDULE 5.5
PERSONAL PROPERTY
None
Schedule 5.6 Page 1
Schedule 5.6
CONTRACTS/AGREEMENTS
BENEFITS
UPMC Medical
Guardian Dental
GE Life/LTD
American Fidelity Voluntary
American Fidelity FSA Administration
Benexx/American National -- Rossar HR 401(k)
BUSINESS
Accountix -- Software Maintenance/Support
Erie Insurance Exchange -- General Liability G3
Technologies -- T1 and IT Support
X0-Allegiance Telecom -- Phone Service
CLIENTS
Air-Smart Technologies, LLC
Burgettstown-▇▇▇▇▇ Township Sewer
Authority CRI International, Inc.
Chestnut Ridge Cemetery Association
Global Links
JIMI Enterprises, Inc.
Perfection Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ & Associates
Price King South, Inc. d/b/a Rhythym House
▇▇▇▇ Design Sales
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ Attorney At Law
State Street Bank - G.H.R.
▇▇▇▇▇▇ Consulting Group
Unique Staging Solutions
Vintage Villas, Inc.
▇▇▇▇ Center For Integrative Health
Wee Care Children's Center
Weirnet, LLC
Schedule 5.7 Page 1
Schedule 5.7
CUSTOMERS
Air-SmartTechnologies, LLC - Commission employees
Total Worksite employees - 1
Client Number - AIRSMART
Contact - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Air-Smart Technologies, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Burgettstown-▇▇▇▇▇ Twp Joint Sewer Authority - Salary and Hourly employees
Total Worksite employees - 7
Client Number - BURG007
Contact - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Burgettstown-▇▇▇▇▇ Township Sewer Authority
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
C.R. International, Inc. - salary and Hourly employees
Total Worksite employees - 31
Client Number - CRI079A
Contact - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CRI INTERNATIIONAL, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
(▇▇▇) ▇▇▇-▇▇▇▇
Chestnut Ridge Cemetery - Salary and Hourly employees
Total Worksite employees - 4 part-time
Client Number - CHEST060
Contact - ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇
CHESTNUT RIDGE CEMETERY ASSOCIATION
▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Global Links - salary and Hourly employees
Total Worksite employees - 7
Client Number - GLO529
Contact - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
GLOBAL LINKS
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Schedule 5.7 - Page 2
JIMI Enterprises, Inc. - salary and Hourly employees
Total Worksite employees - 31
Client Number -JIMI808A
Contact - ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ENTERPRISES, INC.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
(▇▇▇)▇▇▇-▇▇▇▇
Perfection Services, Inc. - Hourly employee
Total Worksite employees - 1
Client Number - PSI547A
Contact - ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Perfection Services, Inc. ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ & Associates - Salary and Hourly employees
Total Worksite employees - 4
Client Number - PJA032
Contact - ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ & ASSOCIATES
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇
Price King South, Inc - (Rythym House) - Salary and Hourly employees
Total Worksite employees - 8
Client Number - RYTHYMH802
Contact - ▇▇▇▇▇▇ ▇▇▇▇
Price King South, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(412)287-7870
▇▇▇▇ Design Sales - Salary employee
Total Worksite employees - 1
Client Number - REES006
Contact - ▇▇▇▇ ▇▇▇▇
▇▇▇▇ Design Sales
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇, Attorney at Law - Hourly employee
Total Worksite employees - 1
Client Number - KLI008A
Contact - ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Schedule 5.7 - Page 3
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ Attorney At Law
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,▇▇ ▇▇▇▇▇
(412)264-4560
State Street Bank - G.H.R. - Salary employees
Total Worksite employees - 2
Client Number - STA528A
Contact - ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ - ▇.▇.▇.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Mutual Fund Financial
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
(▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Consulting Group - Salary employee
Total Worksite employees - 1
Client Number - TCG815
Contact - ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Consulting Group
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
(▇▇▇) ▇▇▇-▇▇▇▇
Unique Staging Solutions - Salary employees
Total Worksite employees - 2
Client Number - SUS815
Contact - ▇▇▇▇ ▇▇▇▇▇▇
Unique Staging Solutions
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
(▇▇▇)▇▇▇-▇▇▇▇
Vintage Villas, Inc. - Hourly Employees
Total Worksite employees - 1
Client Number - VIN810A
Contact- ▇▇▇▇▇▇ ▇▇▇▇▇▇
Vintage Villas, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇
▇▇▇▇ Center Integrative Health - Salary employees
Total Worksite employees - 2
Two agreements one PC and one ASC for physician
Client Number - WEBB807A
Client Number - ASOWEBB
Contact -- ▇▇▇▇▇ ▇▇▇▇
Schedule 5.7 - Page 4
▇▇▇▇ Center For Integrative Health
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
(▇▇▇)▇▇▇-▇▇▇▇
Two agreement one PEO and one ASO
Wee Care Children's Center - Salary and Hourly employees
Total Worksite employees - 28
Client Number - WEE809A
Contact - ▇▇▇▇▇ ▇▇▇▇▇
Wee Care Children's Center
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-
(▇▇▇)▇▇▇-▇▇▇▇
Weirnet, LLC - salary and Hourly employees
Total worksite employees - 3
Client Number - WEI024
Contact - ▇▇▇▇▇▇ ▇▇▇▇▇▇
Weirnet, LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ Creek Metals, Inc. - Quarterly Pay Bonus
Total Worksite employees - 4
Client Number - THOS5O1
Contact - ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Creek Metals, Inc.
▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇)▇▇▇-▇▇▇▇
SCHEDULE 5.10
SELLERS' JURISDICTIONS
None
SCHEDULE 5.11
GOVERNMENTAL APPROVALS AND FILINGS EXCEPTIONS
None
SCHEDULE 5.13
MATERIAL CHANGES, EVENTS AND DEVELOPMENTS
None
Schedule 7.6(g)(iii)
Bank Accounts
PNC Bank -- Checking & Money Market