EXHIBIT 10.1
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ASSET PURCHASE AGREEMENT
DATED MAY 15, 2005
BY AND AMONG
THE RESOURCING SOLUTIONS GROUP, INC.
AS BUYER,
ALLEGRO, INC
AS SELLER
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of the 15th
day of May, 2005 ("Agreement"), by and among The Resourcing Solutions Group,
Inc., a Nevada corporation ("Seller") and Allegro, Inc., a South Carolina
corporation ("Buyer").
RECITALS:
WHEREAS, Seller is engaged in the business of providing professional
and administrative services to employers (the "Business"); and
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, on the terms and conditions set forth herein, certain assets of
Seller described herein;
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained herein, the parties hereto, intending to be
legally bound hereby, agree as follows:
1. SALE OF ASSETS; ASSUMPTION OF LIABILITIES.
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1.1 Sale of Assets of Seller. Subject to the terms and conditions
hereof, Seller will sell, convey, assign, transfer and deliver to Buyer at the
Closing (as hereafter defined), and Buyer will purchase and accept at the
Closing, the assets listed on Schedule 1.1 hereto.
1.2 Assets Retained by Seller. There shall be excluded from the Assets
and retained by Seller all of Seller's assets not listed on Schedule 1.1.
1.3 No Assumption of Liabilities. At the Closing, Buyer shall assume,
and shall agree to satisfy and discharge as the same become due only those
liabilities and obligations of Seller arising out directly out of the contracts
listed on Schedule 1.1 (the "Assumed Obligations"). Buyer's assumption of the
Assumed Obligations shall in no way expand the rights and remedies of third
parties against Buyer as compared to the rights and remedies which such parties
would have had against Seller had this Agreement not been consummated.
1.4. Assignment of Contracts. As part of the sale and purchase of
Assets described in described herein, Seller shall assign the to Buyer the
contracts described in the Assignment and Assumption Agreement attached hereto
as Exhibit 1.4, and Seller shall execute the Assignment and Assumption Agreement
as a condition of performance by Buyer under this Agreement.
1.5 Payment for Assets. Buyer shall purchase the Assets for a purchase
price described in Exhibit 1.5 attached hereto.
1.6 Encumbrances. The Assets shall be sold and conveyed to Buyer free
and clear of all mortgages, security interests, charges, encumbrances, liens,
assessments, covenants, claims, title defects, pledges, encroachments and
burdens of every kind or nature whatsoever.
1.7 Proration. Seller shall pay at Closing all applicable transfer,
sales, use, bulk sales and other taxes, and all documentary, filing, recording
and vehicle registration fees payable as a result of the transfer of the Assets.
2. CLOSING DATE.
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2.1 Time and Place of Closing. The closing of the sale and purchase of
the Assets (the "Closing") will take place at Charlotte, North Carolina, at
12:01 am Standard Time, on May 15, 2005, or at such other time and place as the
parties may establish (the date of the Closing being hereinafter referred to as
the "Closing Date"). The transactions contemplated hereby shall be deemed to be
effective as of 12:01 a.m., Central Daylight Time, on the Closing Date.
2.2 Deliveries by Seller. At or prior to the Closing, Seller shall
execute and deliver or cause to be executed and delivered to Buyer the
following:
(a) A ▇▇▇▇ of Sale for the Assets attached hereto as Exhibit 2.2(a);
(b) An Assignment and Assumption Agreement listing the contracts
described in Schedule 1.1;
(c) A Certificate executed as of the Closing Date by a duly authorized
officer of Seller certifying the resolutions of the Board of Directors and
Shareholders of Seller approving the transactions contemplated hereby; and
(d) Such other instruments of sale, transfer, conveyance and assignment
as Buyer and its counsel may reasonably request.
2.3 Deliveries by Buyer. At or prior to Closing, Buyer shall execute
and deliver or cause to be executed and delivered to Seller the following:
(a) The Assignment and Assumption Agreement;
(b) A Certificate executed as of the Closing Date by a duly authorized
officer of Buyer certifying the resolutions of the Board of Directors of Buyer
approving the transactions contemplated hereby; and
(c) Such other instruments of assumption as Seller and its counsel may
reasonably request.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. As a material inducement to Buyer
to enter into this Agreement and consummate the transactions contemplated
hereby, Seller makes the following representations and warranties to Buyer. The
term "knowledge" or similar language used in this Section 3 shall, in each case,
mean the best knowledge of Seller, as the case may be, after reasonable
investigation.
3.1 Contracts. Neither Seller nor Seller's clients are in default under
any of the contracts described in Schedule 1.1 (the "Contracts"). None of the
Contracts prohibits an assignment as contemplated by this Agreement. Seller does
not need authority from any of its clients to sell or assign the Contracts.
Seller has performed all material obligations under the Contracts as of the date
of this Agreement.
3.2 Title to the Assets. Seller will have transferred to Buyer good,
marketable and unencumbered title to the Assets as of the Closing Date.
3.3 Corporate Status of Seller. Seller is a corporation duly organized,
validly existing and in good standing under the laws of the State of Nevada.
Seller is qualified to do business and in good standing in each jurisdiction
where the operation of its business requires that it be so qualified. Seller has
all requisite corporate power and authority to own and operate the Assets, to
conduct its business as it is now being conducted, to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby.
3.4 Authority Concerning this Agreement. The execution, delivery and
performance by Seller of this Agreement and of each agreement, document or
instrument executed and delivered or to be executed and delivered in connection
with the transactions contemplated hereby, and the consummation of the
transactions contemplated hereby and thereby, have been duly and validly
authorized and approved by all necessary corporate action of Seller. This
Agreement is (and, when executed and delivered, each agreement, document or
instrument to be executed and delivered in connection with the transactions
contemplated hereby will be) valid and binding upon Seller, and enforceable
against Seller in accordance with their respective terms except to the extent
that enforcement thereof may be limited by applicable bankruptcy,
reorganization, insolvency or moratorium laws, or other laws affecting the
enforcement of creditors' rights or by the principles governing the availability
of equitable remedies.
3.5 Consents and Approvals; No Violation. Neither the execution nor
delivery by Seller of this Agreement, or any agreement, document or instrument
executed and delivered or to be executed and delivered in connection with the
transactions contemplated hereby, nor the consummation by Seller of the
transactions contemplated hereby or thereby, nor compliance by Seller with any
of the provisions hereof or thereof, will: (a) conflict with or result in a
breach of any provision of Seller's Articles of Incorporation or Bylaws; (b)
result in the breach of, or conflict with, any of the terms and conditions of,
or constitute a default (with or without the giving of notice or the passage of
time or both) with respect to, or result in the cancellation or termination of,
or the acceleration of the performance of any obligations or of any indebtedness
under, any Material Agreement; (c) result in the creation of a lien, security
interest, charge or encumbrance upon any of the Assets; or (d) violate any law
or any rule or regulation of any administrative agency or governmental body, or
any order, writ, injunction or decree of any court, administrative agency or
governmental body to which any Seller or its properties or assets may be
subject. No approval, authorization, consent or other action of, or filing with,
or notice to any court, administrative agency or other governmental authority or
any other person or entity is required for the execution and delivery by any
Seller of this Agreement or any agreement, document or instrument executed and
delivered or to be executed and delivered in connection
with the transactions contemplated hereby or thereby, or the consummation of the
transactions contemplated hereby or thereby.
3.6 Licenses and Authorizations. Seller is currently licensed in all
states in which it is providing services to the customers pursuant to the
Contracts.
3.7 Guarantees. Neither the Business nor any of the Assets is nor will
be at the Closing, directly or indirectly: (i) liable, by guarantee or
otherwise, upon or with respect to, (ii) obligated, by discount or repurchase
agreement or in any other way, to provide funds in respect of; or (iii)
obligated to guarantee or assume, any debt, dividend or other obligation of, any
person, corporation, association, partnership or other entity including, without
limitation, Seller or any of its affiliates.
3.8 Accuracy of Information Furnished. No statement contained in this
Agreement or any Exhibit or Schedule attached hereto, and no statement contained
in any certificate or other instrument or document furnished by or on behalf of
Seller pursuant to this Agreement, contains or will contain any untrue statement
of a material fact or omits or will omit to state any material fact that is
necessary to make the statements contained herein or therein not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER. As a material inducement for Seller
to enter into this Agreement and to consummate the transactions contemplated
hereby, Buyer represents and warrants to Seller as follows:
4.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of South Carolina.
Buyer has all requisite corporate power and authority to own and operate its
properties, to carry on its business as now being conducted and to execute,
deliver and perform its obligations under this Agreement and to consummate the
transactions contemplated hereby.
4.2 Authority Concerning this Agreement. The execution, delivery and
performance by Buyer of this Agreement and of each agreement, document or
instrument executed and delivered or to be executed and delivered in connection
with the transactions contemplated hereby, and the consummation of the
transactions contemplated hereby and thereby have been duly and validly
authorized and approved by all necessary corporate action of Buyer. This
Agreement is (and, when executed and delivered, each agreement, document or
instrument to be executed and delivered in connection with the transactions
contemplated hereby will be) valid and binding upon Buyer, and enforceable
against Buyer in accordance with their respective terms except to the extent
that enforcement thereof may be limited by applicable bankruptcy,
reorganization, insolvency or moratorium laws, or other laws affecting the
enforcement of creditors' rights or the principles governing the availability of
equity remedies.
5. INDEMNIFICATION.
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5.1 Indemnification Obligation of Seller. Seller hereby agrees to
defend, indemnify and hold harmless Buyer from, against and in respect of any
loss, cost, damage or expense, including but not limited to, legal and
accounting fees and expenses (and sales taxes thereon, if
any) asserted against, imposed upon or paid, incurred or suffered by Buyer (a
"Loss") as a result of, arising from or in connection with any breach of any
representation, warranty, covenant or agreement of Seller in this Agreement or
in any agreement, document or instrument executed and delivered in connection
with the transactions contemplated hereby.
5.2 Indemnification Obligation of Buyer. Buyer hereby agrees to defend,
indemnify and hold harmless Seller from, against and in respect of any Loss as a
result of, arising from or in connection with any breach of any representation,
warranty, covenant or agreement of Buyer in this Agreement or in any agreement,
document or instrument executed and delivered in connection with the
transactions contemplated hereby.
6. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE. Buyer's obligation to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment, at or prior to Closing, of each of the following conditions
precedent (any or all of which may be waived in writing, in whole or in part, by
Buyer):
6.1 Performance of Obligations. Seller shall have performed all of the
obligations and complied with all of the covenants required to be performed or
to be complied with by them under this Agreement on or prior to the Closing
Date.
6.2 Approvals. Seller shall have delivered to Buyer any and all
approvals, consents or assignments necessary for the consummation of the
transactions contemplated hereby, including, without limitation, any consents
required: (i) by any governmental or administrative body; (ii) under any
Material Agreement; (iii); or (iv) under any Permit.
6.3 Representations and Warranties. Each representation and warranty of
Seller contained in this Agreement shall be true and correct both at the date on
which this Agreement is signed and at and as of the Closing Date as if made anew
at and as of such time.
7. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE. Seller's obligation to
consummate the transactions contemplated by this Agreement shall be subject to
the fulfillment, at or prior to Closing, of each of the following conditions
precedent (any or all of which may be waived in writing, in whole or in part, by
Seller):
7.1 Performance of Obligations. Buyer shall have performed all of its
obligations and complied with all of its covenants required to be performed or
to be complied with by it under this Agreement on or prior to the Closing Date.
7.2 Representations and Warranties. Each representation and warranty of
Buyer contained in this Agreement shall be true and correct both at the date on
which this Agreement is signed and at and as of the Closing Date as if made at
and as of such time.
7.3 Approval. The board of directors of Buyer shall have approved Buyer
entering into this Agreement and consummation of the transactions contemplated
hereby.
8. MISCELLANEOUS.
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8.1 Entire Agreement. This Agreement and the Exhibits and Schedules to
this Agreement constitute the entire agreement between the parties hereto with
respect to the subject matter hereof and supersede all prior negotiations,
understandings, agreements, arrangements and understandings, both oral and
written, between the parties hereto with respect to such subject matter. The
Exhibits and Schedules to this Agreement are incorporated into and constitute
part of this Agreement.
8.2 Amendment. This Agreement may not be amended or modified in any
respect, except by the mutual written agreement of the parties hereto.
8.3 No Third Party Beneficiary. Nothing expressed or implied in this
Agreement is intended, or shall be construed, to confer upon or give any person,
firm, corporation, partnership, association or other entity, other than the
parties hereto and their respective successors and permitted assigns, any rights
or remedies under or by reason of this Agreement.
8.4 Survivability. Notwithstanding any investigation made by or on
behalf of any party to this Agreement, the representations and warranties made
under and in connection with this Agreement shall be true and correct on and as
of the Closing Date with the same effect as if made on and as of such date and
shall survive the Closing and consummation of all the transactions contemplated
hereby.
8.5 Waivers and Remedies. The waiver by any of the parties hereto of
any other party's prompt and complete performance, or breach or violation, of
any provision of this Agreement shall not operate nor be construed as a waiver
of any subsequent breach or violation, and the waiver by any of the parties
hereto to exercise any right or remedy which it may possess hereunder shall not
operate nor be construed as a bar to the exercise of such right or remedy by
such party upon the occurrence of any subsequent breach or violation.
8.6 Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses, sections or subsections contained in this Agreement
shall not affect the enforceability of the remaining portions of this Agreement
or any part hereof, all of which are inserted conditionally on their being valid
in law, and, in the event that any one or more of the words, phrases, sentences,
clauses, sections or subsections contained in this Agreement shall be declared
invalid by a court of competent jurisdiction, this Agreement shall be construed
as if such invalid word or words, phrase or phrases, sentence or sentences,
clause or clauses, section or sections, or subsection or subsections had not
been inserted.
8.7 Descriptive Headings/Recitals. Descriptive headings contained
herein are for convenience only and shall not control or affect the meaning or
construction of any provision of this Agreement. The recitals are incorporated
into and made a part of this Agreement.
8.8 Counterparts and Facsimile Signatures. This Agreement may be
executed in counterparts by the separate parties hereto, all of which shall be
deemed to be one and the same
instrument. Facsimile signatures shall have the same effect as original
signatures.
8.9 Notices. All notices, consents, requests, instructions, approvals
and other communications provided for herein and all legal process in regard
hereto shall be in writing and shall be deemed to have been duly given: (i) when
delivered by hand; (ii) when delivered by facsimile (if written confirmation of
receipt of the facsimile is obtained from the party to be charged with notice);
(iii) five (5) days after being deposited in the United States mail by
registered or certified mail, return receipt requested, postage prepaid; or (iv)
on the second business day after being sent (prepaid for next day delivery), via
Federal Express, United Parcel Service, DHL or other nationally recognized
delivery service, as follows:
If to Seller: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Buyer: ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
or to such other address as any party hereto may from time to
time designate in writing delivered in a like manner.
8.7 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns. None of the parties hereto shall assign any of its rights
or obligations hereunder without the express written consent of the other party
hereto.
8.10 Applicable Law. This Agreement shall be governed by, and shall be
construed, interpreted and enforced in Accordance with, the laws of the State of
South Carolina.
8.11 Expenses. Except as otherwise provided herein, each of the parties
hereto agrees to pay all of the respective expenses incurred by it in connection
with the negotiation, preparation, execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby,
including accountants' and attorneys' fees.
(Signature Page to Follow)
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the date
first above written.
BUYER:
Witness:
ALLEGRO, INC.
By:/s/▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chairman
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SELLER:
Witness:
THE RESOURCING SOLUTIONS GROUP, INC.
By:/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
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SCHEDULE 1.1
ASSETS
See Attached
EXHIBIT A
CONTRACTS
RSG CUSTOMER NO. CUSTOMER NAME
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4002 SeaSide Custom Exteriors, Inc.
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4005 ▇▇ ▇▇▇ Company
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4007 DSS
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4008 HIS
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4009 PPC
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▇▇▇▇ ▇ & ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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6001 PSL Child Care
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6003 Spas Pools & Patio
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6005 Bits & Pieces, Inc.
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1013 ▇▇▇▇▇▇ Transportation
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1014 Alpha United
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1015 Unique Living
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1027 ▇▇▇▇▇▇▇ Realty & Construction
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1053 Underground Camera Service, Inc.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Holding Corp.
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1071 Ram ▇▇▇▇ LLC
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1073 Brunswick Insulation, Inc.
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1086 Ram ▇▇▇▇ of Charlotte, LLC
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1088 Elan Trading, Inc.
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1090 ▇▇▇▇▇ Excavating Service, Inc.
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1093 A & A Building Systems, Inc.
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1107 Leathermen's Guild
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▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Parners
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1112 Dallas Machine Company, Inc.
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1167 Inside and Out Construction Co., Inc.
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1174 Delta Equipment Enterprises, Inc.
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2152 Lincoln Consulting
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SCHEDULE 2.2 (a)
▇▇▇▇ of Sale
See Attached
Exhibit 2.2
▇▇▇▇ OF SALE
KNOW ALL MEN BY THESE PRESENTS, that THE RESOURCING SOLUTIONS GROUP,
INC., a Nevada corporation ("Seller") for good and valuable consideration paid
by Allegro, Inc., a South Carolina corporation ("Buyer"), the receipt of which
is hereby acknowledged by Seller, does, pursuant to the Asset Purchase Agreement
dated May 15, 2005 between the parties (the "Purchase Agreement"), hereby agrees
to transfer, convey and assign to Buyer, its successors and assigns, forever,
the following described property effective as of May, 2005 (the "Effective
Date"):
SEE EXHIBIT "A"
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.
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 15th day of May, 2005.
SELLER:
THE RESOURCING SOLUTIONS GROUP, INC.
a Nevada corporation
By:/s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
EXHIBIT 1.4
Assignment of Contracts
See Attached
EXHIBIT 1.5
Payment
See Attached
(Payment)
The parties hereby agree that the Buyer will pay for the Assets as follows:
For each Contract (as that term is defined in the Agreement) identified in the
attachment to the Assignment and Assumption Agreement (attached to this
Agreement as Exhibit 1.4), Buyer will pay to the Seller fifty percent (50%) of
the Administrative Fee, as that term is defined below, collected by the Buyer
each month, for a period of twelve months following the effective date of the
Agreement (the Monthly Payments"). Seller agrees that it is only entitled to
payments as described above to the extent Buyer has been finally paid each month
pursuant to the Contracts. If a Contract is terminated for any reason, no
further payments shall be due to Seller for such Contract(s). No payments shall
be due for Administrative Fees attributable to services provided by Buyer
pursuant to the Contracts more than twelve (12) months after the effective date
of the Agreement. After Buyer has remitted payments in full to Seller for
Administrative Fees as described herein for the twelve month period immediately
following the effective date of the Agreement, Buyer's obligation for payment of
the Assets shall terminate and no other funds or payments shall be due. For the
months of May 2005 and May 2006, Buyer shall be obligated to pay Administrative
Fees on a pro rata basis based on the number of days in these months during
which the Agreement is in effect. Buyer shall remit Seller's share of
Administrative Fee to Seller within fifteen (15) days of receipt.
Buyer shall provide to Seller a written accounting of the funds received
pursuant to the Contracts and a calculation of the Administrative Fee along with
each remittance of payment as described herein. Seller shall have the right to
inspect the books and records of Buyer regarding the payment of Administrative
Fees hereunder after providing to Buyer reasonable advance notice, which notice
shall be no less than ten business days. In any such inspection, Buyer shall
provide copies of documents necessary to determine the Administrative Fee(s)
due, and Seller shall have no right to access Buyer's premises unless agreed to
in writing by Buyer.
The term "Administrative Fee" for purposes of this Exhibit 1.5 shall mean Gross
Revenues remitted by a customer pursuant to a Contract, less all taxes (i.e.,
FICA, FUTA, SUI), insurance premiums and benefits or other employee deductions.