Exhibit 10.16
MUTUAL TERMINATION AND RELEASE AGREEMENT
This MUTUAL TERMINATION AND RELEASE AGREEMENT (this "Agreement"), dated
as of May 3, 2000, is by and among Westaff Acquisition Corp., a Delaware
corporation ("Merger Sub"), Westaff, Inc., a Delaware corporation (the
"Company"), The ▇▇▇▇▇▇ Revocable Trust, The ▇▇▇▇▇▇ 1999 Charitable Remainder
Unitrust, The ▇▇▇▇▇▇ Foundation, Cornerstone Equity Investors IV, L.P., and
Centre Capital Investors III, L.P.
WHEREAS, the parties hereto are all parties to that certain
Recapitalization Agreement and Plan of Merger dated March 7, 2000 (the
"Recapitalization Agreement");
WHEREAS, Merger Sub and the Company desire to terminate the
Recapitalization Agreement in accordance with Section 9.01(a) thereof; and
WHEREAS, in connection with such termination the parties hereto agree
to provide for the mutual releases and to make the payments as provided
herein. Capitalized terms which are used herein and are not otherwise
defined have the respective meanings set forth therefor in the Purchase
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained and intending to be legally bound,
the parties hereby agree as follows
1. Effective upon receipt by the Investor Group of the payment
contemplated by paragraph 3 hereof, the Recapitalization Agreement is hereby
terminated pursuant to Section 9.01(a) thereof and is of no further force or
effect.
2. Upon the execution of this Agreement and receipt by the Investor
Group of the payment contemplated by paragraph 3 hereof, each of the parties
hereto, on behalf of itself and each of its Affiliates, and their respective
officers, directors, divisions, subsidiaries, employees, agents and attorneys
(and the predecessors, heirs, executors, administrators and successors of
each of the foregoing), hereby releases and forever discharges each of the
other parties hereto and its and their respective Affiliates and each of
their respective officers, directors, divisions, subsidiaries, employees,
agents and attorneys (and the predecessors, heirs, executors, administrators
and successors of each of the foregoing), from any and all claims, demands,
actions, causes of action, and suits, in law or in equity, whether now known
or unknown, fixed or contingent, which any such party ever had or now has, or
hereafter can, shall or may have, for, upon or by reason of any manner, cause
or thing whatsoever, arising from the beginning of time relating to or
arising from the Recapitalization Agreement.
3. Promptly upon execution of this Agreement, the Company shall make a
payment in the aggregate amount of $500,000 to the Investor Group by wire
transfer of immediately available funds to an account or accounts designated
by the Investor Group.
4. Each of the parties hereto represents and warrants that this
Agreement and the transactions contemplated hereby have been duly authorized
by all necessary action on the part of such party, and that this Agreement
constitutes a legal and valid obligation of such party, enforceable against
it in accordance with the terms hereof.
5. Each of the parties hereto shall not issue any press release or
otherwise make any public statements with respect to this Agreement or the
Recapitalization Agreement, or any of the transactions contemplated hereby or
thereby, without the prior consent of the other parties (which consent shall
not be unreasonably withheld), except as may be required by Law or any
listing agreement with the NASD or any national securities exchange to which
Merger Sub or the Company is a party and, in such case, shall use reasonable
efforts to consult with all the parties hereto prior to such release or
statement being issued.
6. The provisions of this Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware (excluding any conflict
of law, rule or principle that would refer to the laws of another
jurisdiction).
7. This Agreement may be executed and delivered (including by facsimile
transmission) in two or more counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
agreement.
8. This Agreement constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among the parties, or any of them,
with respect to the subject matter hereof.
* * * *
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
WESTAFF ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
WESTAFF, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive V.P. and C.F.O.
THE ▇▇▇▇▇▇ REVOCABLE TRUST
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Trustee
THE ▇▇▇▇▇▇ 1999 CHARITABLE
REMAINDER UNITRUST
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Trustee
THE ▇▇▇▇▇▇ FOUNDATION
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Trustee
CORNERSTONE EQUITY INVESTORS IV, L.P.
By: CORNERSTONE IV, L.L.C.
Its: GENERAL PARTNER
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
CENTRE CAPITAL INVESTORS III, L.P.
By: Centre Partners , L.P.
As general partner of such partnership
By: Centre Partners Management LLC,
attorney-in-fact
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director