EXHIBIT 10(K)
AGREEMENT AND ASSIGNMENT OF RIGHTS
----------------------------------
This Agreement and Assignment of Rights (the "Agreement") is entered into
effective as of the 1st day of February, 2003 (the "Effective Date"), by and
between ACCORD HUMAN RESOURCES, INC. ("Accord"), an Oklahoma corporation,
GREENLAND CORPORATION ("Greenland"), a Nevada corporation, and IMAGE
TECHNOLOGIES CORPORATION ("I Tech"), a Delaware corporation.
WITNESSETH
WHEREAS, Greenland is a provider of Professional Employer Organization
Services which include, but are not limited to, human resource consultants,
payroll processing services, human resources management services, safety
services, workers compensation, medical, dental, short term and long term
disability coverages, and other employment related benefits products
(collectively, "PEO Services");
WHEREAS, Accord is a provider of PEO Services to the persons or entities
described on the attached Exhibit A (each, an "Existing Client") and Accord has
previously provided PEO Services to the persons or entities described on the
attached Exhibit B (each, a "Previous Client") (Existing Clients and Previous
Clients are each sometimes referred to herein as an "Accord Client");
WHEREAS, benefits available to Existing Clients (the "Benefits") and union
agreements applicable to Existing Clients ("Union Contracts") are described on
the attached Exhibit C;
WHEREAS, pursuant to the terms of this Agreement, Accord desires to assign all
of its rights and delegate certain of its obligations arising out of its
relationship with the Existing Clients as a provider of PEO Services;
WHEREAS, pursuant to the terms of this Agreement, Greenland desires to acquire
all rights and assume certain obligations of Accord arising under or related to
the provision of PEO Services to the Existing Clients; and
WHEREAS, I Tech owns a controlling interest in Greenland.
NOW THEREFORE, in consideration of the mutual promises made herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby covenant and agree as follows:
1. ASSIGNMENT OF CONTRACT RIGHTS.
--------------------------------
1.1 ACCORD hereby irrevocably assigns, conveys and transfers to Greenland
all of its right, title, and interest in and to all of the rights and benefits
arising under or out of Personnel Staffing Agreements with the Existing Clients
as described on the attached Exhibit "A" (each, an (Accord Contract").
Greenland agrees to notify each Existing Client of this assignment within five
(5) days following the Effective Date. Such notification will be made in a form
and manner approved by Accord, which shall not be unreasonably withheld or
delayed.
1.2 INSURANCE AND BENEFIT CONTRACTS. Greenland shall obtain its own
insurance policies and employee benefits programs which will provide coverage or
benefits to the Existing Clients or employees of the Existing Clients, including
but not limited to all workers' compensation policies, health, dental, vision,
life and disability insurance or indemnity policies, retirement plans or other
employee benefit plans or agreements.
2. TRANSITION PERIOD. For a period of sixty (60) days following the date of
------------------
this agreement, Accord agrees to provide reasonable assistance to Greenland and
each Existing Client in the transition from Accord to Greenland as the provider
of PEO Services.
3. ASSUMPTION OF OBLIGATIONS BY GREENLAND. Greenland assumes all duties,
------------------------------------------
liabilities, and obligations of Accord to each Existing Client, co-employee,
governmental authority, and other third party accruing on or after the Effective
Date and arising under or with respect to the Accord Contracts, including, by
way of example but without limitation, the obligation to provide worker's
compensation insurance and all Benefits , to pay all employment taxes and
California Environmental Fees, and to perform all obligations under all
applicable Union Contracts (collectively, the "Assumed Liabilities"). Greenland
shall defend, indemnify and hold Accord harmless from and against any and all
loss, liability, cost, claims, and expenses (including but not limited to
attorneys fees) which directly or indirectly, either in whole or in part, arises
out of or is related to any of the Assumed Liabilities. Accord retains exclusive
responsibility for all duties, liabilities and obligations of Accord which
accrued prior to the Effective Date (collectively, the "Retained Liabilities").
Accord shall defend, indemnify and hold Greenland harmless from and against any
and all loss, liability, cost, claims, and expenses (including but not limited
to attorneys fees) which directly or indirectly, either in whole or in part,
arises out of or is related to any of the Retained Liabilities.
4. PAYMENTS BYGREENLAND.
---------------------
4.1 COMMISSIONS. Greenland shall pay Accord an amount ("Accord
Commission") equal to (25%) twenty-five percent of Gross Profits generated
during a (3) three year period (the "Commission Period") beginning on the later
to occur of February 1, 2003, or the date of Greenland's first payroll covering
Existing Clients. Gross Profits shall mean an amount equal to Greenland's total
▇▇▇▇▇▇▇▇ to Clients and Previous Clients procured by Greenland on or after
February 1, 2003, less wages paid to such client's employees and other direct
employee costs, including but not limited to federal, state, and local income
taxes, FICA, workers' compensation insurance and benefits paid with respect to
such employees, and a payroll administration fee equal to the payroll
administration fee currently charged to the Accord Clients, which in most cases
is 1% of gross wages.
4.2 PAYMENTS. The Accord Commissions shall be paid monthly, in
arrears, on the 15th day of each month and shall be submitted with a monthly
report of all Accord Clients and Gross Profits earned from each Accord Client.
All past due amounts shall bear interest at the rate of 18% per annum from the
due date until paid. Accord retains the right to access Greenland's books and
records at reasonable times for the purpose of auditing the Accord Commissions
5. SALES AGENTS. Greenland shall, within ten (10) days following the
-------------
Effective Date, enter into an commission agreement with ▇▇▇▇▇ ▇▇▇▇▇ and any
other former Accord sales agent receiving commissions from Accord as of the
Effective Date in connection with the Accord Contracts. Each such commission
agreement shall provide for payment by Greenland to each such agent of sales
commissions during the Commission Period equal to thirty percent (30%) of an
amount equal to Gross Profits less the Accord Commission.
6. ASSIGNMENT BY GREENLAND. In the event of any assignment or other
--------------------------
transfer for value during the Commission Period of Greenland's rights as a
provider of PEO Services to any of the Accord Clients, Greenland shall pay to
Accord an amount equal to the then present value of the remaining unpaid Accord
Commissions with respect to such Accord Clients. The present value shall be
determined based on the assumption that the Gross Profits generated during the
payroll period immediately prior to the effective date of such transfer would,
but for such transfer, continue throughout the remainder of the Commission
Period.
7. ACCORD OFFICE SPACE.Greenland shall either assume Accord's obligations
----------------------
under its current lease of California office space or sub-let such space from
Accord. Greenland acknowledges that the office is located at ▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇ and includes 4725 square feet at the rate of $6725.00
per month through the remainder of December 31, 2003. Greenland shall advise
Accord of its election within three (3) days following the Effective Date and
the parties shall complete documentation of assignment or sublease in a
commercially reasonable form within ten (10) days following the Effective Date.
Greenland shall not be entitled to possession of such space until documentation
is complete. Greenland shall defend, indemnify and hold Accord harmless from
and against any and all loss, liability, cost, claims, and expenses (including
but not limited to attorneys fees) which directly or indirectly, either in whole
or in part, arises out of or is related to Accord's current lease and
Greenland's occupancy and use of such space.
8. TERM OF THE AGREEMENT. The term of this Agreement shall commence as of
------------------------
the Effective Date and shall expire upon payment of all amounts due to Accord
hereunder.
9. REPRESENTATIONS AND WARRANTIES.
--------------------------------
9.1 REPRESENTATIONS AND WARRANTIES OF ACCORD. Accord represents and warrants
to Greenland that it has the requisite power and authority to execute, deliver
and fully perform all of its obligations under this Agreement, and all other
documents and instruments contemplated by this Agreement, according to their
respective terms. Accord and the person(s) signing this Agreement on behalf of
Accord in a representative capacity (such as an officer, general partner,
manager or trustee of a party) each represent and warrant to Greenland that each
person signing this Agreement on behalf of Accord in a representative capacity
has obtained all organizational or other approvals necessary to vest him with
actual authority to execute and deliver this Agreement on behalf of Accord and
that upon execution of this Agreement by such person(s) on behalf of Accord in
their stated representative capacity and delivery of this Agreement to
Greenland, this Agreement will be a valid and binding obligation of and upon
Accord which is fully enforceable according to its terms. Accord further
represents and warrants to Greenland that the execution, delivery and
performance of this Agreement, and any other documents or instruments
contemplated by this Agreement (with or without the giving of notice, the lapse
of time, or both), by Accord: (i) does not require the consent of any
governmental or regulatory authority or any third party; (ii) will not conflict
with any provision of Accord's organizational documents; and (iii) to the best
of Accord's knowledge, will not conflict with, result in a breach of, or
constitute a default under any law, ordinance, regulation, ruling, judgment,
order or injunction of any court or governmental instrumentality to which Accord
is a party or by which Accord is bound.
9.2 REPRESENTATIONS AND WARRANTIES OF GREENLAND. Greenland represents and
warrants to Accord that it has the requisite power and authority to execute,
deliver and fully perform all of its obligations under this Agreement, and all
other documents and instruments contemplated by this Agreement, according to
their respective terms. Greenland and the person(s) signing this Agreement on
behalf of Greenland in a representative capacity (such as an officer, general
partner, manager or trustee of a party) each represent and warrant to Accord
that each person signing this Agreement on behalf of Greenland in a
representative capacity has obtained all organizational or other approvals
necessary to vest him with actual authority to execute and deliver this
Agreement on behalf of Greenland and that upon execution of this Agreement by
such person(s) on behalf of Greenland in their stated representative capacity
and delivery of this Agreement to Accord, this Agreement will be a valid and
binding obligation of and upon Greenland which is fully enforceable according to
its terms. Greenland further represents and warrants to Accord that the
execution, delivery and performance of this Agreement, and any other documents
or instruments contemplated by this Agreement (with or without the giving of
notice, the lapse of time, or both), by Greenland: (i) does not require the
consent of any governmental or regulatory authority or any third party; (ii)
will not conflict with any provision of Greenland's organizational documents;
and (iii) to the best of Greenland's knowledge, will not conflict with, result
in a breach of, or constitute a default under any law, ordinance, regulation,
ruling, judgment, order or injunction of any court or governmental
instrumentality to which Greenland is a party or by which Greenland is bound.
10. CONFIDENTIALITY. Except as authorized by the other party, neither Accord
---------------
nor Greenland shall disclose the terms of this Agreement either during or after
termination of this Agreement.
11. CONTRACT MODIFICATION. Except as otherwise provided in this Agreement,
----------------------
this Agreement may only be modified, amended, rescinded or terminated by a
written agreement executed by all parties to this Agreement and no oral
statement shall in any manner modify or otherwise affect the terms and
conditions set forth herein.
12. WAIVER. Any waiver by any party of a breach of any provision of this
------
Agreement shall not operate as or be construed to be a waiver of any other
breach of any other provision of this Agreement. Any waiver must be in writing.
Failure by any party to insist upon strict adherence to any term of this
Agreement on one or more occasions shall not be considered a waiver or deprive
such party of the right thereafter to insist upon strict adherence to that term
or any other term of this Agreement.
13. CONTROLLING LAW. The parties agree that this Agreement will be
----------------
interpreted and enforced under the laws of the State of Oklahoma, excluding any
-
choice of law rules which may direct the application of laws of any other
jurisdiction.
14. ASSIGNMENT AND DELEGATION. The parties agree that neither party may
---------------------------
assign any of the benefits derived from this Agreement or delegate any of its
obligations under this Agreement without the prior written consent of the other
party which shall not be unreasonably withheld.
15. AGREEMENT BINDING ON SUCCESSORS AND ASSIGNS. This Agreement shall be
-----------------------------------------------
binding upon the parties' successors and permitted assigns.
16. SEVERABILITY. Each section, subsection and lesser section of this
------------
Agreement constitutes a separate and distinct undertaking, covenant or provision
hereof. In the event that any provision of this Agreement shall be determined
to be invalid or unenforceable, such provision shall be deemed limited by
construction in scope and effect to the minimum extent necessary to render the
same valid and enforceable, and, in the event such a limiting construction is
impossible, such invalid or unenforceable provision shall be deemed severed from
this Agreement, but every other provision of this Agreement shall remain in full
force and effect.
17. CONSTRUCTION. In the event an ambiguity or question of intent or
------------
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties and no presumption or burden of proof shall arise favoring or
disfavoring either party by virtue of the authorship of any of the provisions of
this Agreement.
18. HEADINGS. Any paragraph heading, section heading, or caption herein is
--------
inserted only for convenience and is in no way to be construed as part of this
Agreement.
19. DISPUTE RESOLUTION. Any dispute between the parties arising out of this
-------------------
Agreement will be settled under binding arbitration to be held within Oklahoma
City, Oklahoma County, Oklahoma, in accordance with the American Arbitration
Association Commercial Dispute Resolution Procedures. The prevailing party in
any dispute under this Agreement will be awarded attorney fees and any court or
arbitration costs incurred by it.
20. COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original for all purposes.
----
21. SURVIVAL OF TERMS. The terms and provisions of Section 3 and Sections 10
-----------------
through 24 (inclusive) shall survive any termination or expiration of this
Agreement.
22. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding
-----------------
between Accord, Greenland, and I Tech with respect to its subject matter, and
supersedes all prior written and oral proposals, understandings, agreements and
representations, all of which are merged herein, including but not limited to
the letter of intent, dated January 17, 2003 between Accord and Greenland's
subsidiary, ExpertHR.
23. GUARANTY. I Tech guarantees to Accord the absolute, complete and
--- --------
punctual performance of the obligations of Greenland contained in the Agreement,
---
including, without limitation, the payment of all sums now or hereafter owed by
Greenland hereunder. The obligation of I Tech hereunder is an absolute,
unconditional, continuing guaranty of payment and will not terminate until
Greenland has paid in full all amounts owing and performed all of Greenland's
obligations under this Agreement. Accord may, at its option, proceed to enforce
this guaranty directly against I Tech without first proceeding against Greenland
or any other person liable for payment or performance under this Agreement. I
Tech waives diligence, presentment, protest, notice of dishonor, demand for
payment, notice of nonpayment or nonperformance, notice of acceptance of this
guaranty and all other notices of any nature in connection with the exercise of
Accord's rights under the Agreement or this guaranty. I Tech waives all rights
to setoffs and counterclaims against Accord and any rights, which the I Tech
might now or hereafter hold against Greenland. This Guaranty will be binding on
I Tech and its successors and assigns and will inure to the benefit of Accord
and its successors and assigns.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of
the Effective Date.
"Accord":
ACCORD HUMAN RESOURCES, INC., an Oklahoma corporation
By: ___________________________________________________
▇▇▇▇ ▇▇▇▇▇▇▇, President
"Greenland":
GREENLAND, INC., a Nevada Corporation
By: ___________________________________________________
▇▇▇ ▇▇▇▇▇▇, CEO
"I Tech":
IMAGING TECHNOLGIES CORPORATION, a Delaware Corporation
By: ___________________________________________________
▇▇▇▇▇ ▇▇▇▇▇, CEO
EXHIBIT A
ExpertHR Client List -As of January 28, 2003
[CONFIDENTIAL]
EXHIBIT B
Expert HR Client Listing -Cancelled Clients (1/1/2002-12/31/2002)
[CONFIDENTIAL]
EXHIBIT C
Summary of Benefit Plans Offered - As of January 28, 2003
[CONFIDENTIAL]