EXHIBIT 10.9
ASSET PURCHASE AGREEMENT
DATED MARCH 3, 1997
BY AND AMONG
OUTSOURCE INTERNATIONAL OF AMERICA, INC.
AS BUYER
AND
SUPERIOR TEMPORARIES, INC.
AS SELLER
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of the 3rd day of
March, 1997 ("Agreement"), by and among OutSource International of America,
Inc., an Florida corporation ("Buyer"), and Superior Temporaries, Inc., a
Florida corporation ("STI"), sometimes referred to as "Seller".
RECITALS:
WHEREAS, the Seller operates a temporary help business, from ten (10)
locations, under the terms of five (5) various Franchise Agreements dated June
1, 1994 for Miami, FL, Ft. Lauderdale, FL and West Palm Beach, FL, May 1, 1994
for Orlando, FL and , 1996 for Sarasota, FL, all with OutSource
Franchising, Inc., an affiliate of Buyer, (the "Business").
WHEREAS, Seller desires to sell to Buyer, and Buyer desires to purchase
from Seller, on the terms and conditions set forth herein, all of the designated
assets of the Seller, listed in section 1.1 below, which together constitute
substantially all of the assets that are used in connection with, necessary for,
or beneficial to, the operation of the Business;
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.
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, all
designated assets, privileges, rights, interests, business and goodwill owned by
Seller or in which Seller have an interest (except the Excluded Assets, as
hereinafter defined), and used or held for use in connection with the operation
of the Business, of every kind and description, personal and mixed, tangible and
intangible and wherever located (such assets, properties, privileges, rights,
interests, business and goodwill being transferred hereunder are hereinafter
referred to collectively as the "Assets"). Without limiting the generality of
the foregoing, the Assets shall include all of Seller' right, title and interest
in and to the following (except to the extent any of the following constitute
Excluded Assets):
(a) All supplies, equipment, machinery, furniture, fixtures and
leasehold improvements owned by Seller or used by Seller in connection with the
Business, including the tangible assets which will be listed on SCHEDULE 1.1, by
Buyer, within 10 days of Closing.
(b) All of Seller' right, title and interest under all agreements or
contracts to which it is a party or by which it or the Assets are bound or which
otherwise relate to the Business,
including, without limitation, the documents listed in EXHIBIT A or SCHEDULE 3.8
hereto, with the exception of rights under Seller's agreements or contracts with
(i) Productivity Partners, Inc., (ii) Productivity Partners II, Inc., (iii)
liability insurance, and (iv) worker's compensation insurance;
(c) All of Seller' right, title and interest in and to the Intellectual
Property (as hereafter defined) owned by Seller or used in the Business;
(d) All proprietary knowledge, trade secrets, technical information,
quality control data, processes (whether secret or not), methods, and other
similar know-how or rights used in the Business;
(e) The Business as a going concern and its, customer lists, vendor
lists, restrictive covenants, choices in action, rights of recovery, rights of
recoupment, lists of temporary employees, together with all books, computer
software, files, papers, records and other data of Seller relating to their
respective assets, properties, business and operations;
(f) All other property and rights of every kind or nature owned by
Seller or used in the Business, including but not limited to the employment
applications of temporary staff (the "Applications"). Buyer agrees that, after
the Closing, Seller shall have unlimited right to access and copy said
Applications during all normal business hours and Buyer shall provide, and not
unreasonably withhold, reasonable assistance to the Seller in obtaining such
information (such as copying and faxing copies to Seller).
(g) All rights of Seller's in and to its trade names and trademarks
used in the Business, and variants thereof and all goodwill associated
therewith; and
(h) All other property and rights of every kind or nature owned by
Seller or used in the Business, including but not limited to the employment
applications of temporary and permanent staff (the "Applications") (Buyer agrees
that, after the Closing, Seller shall have unlimited right to access and copy
said Applications during all normal business hours).
1.2 ASSETS RETAINED BY SELLER. There shall be excluded from the Assets and
retained by Seller all of the following (collectively, the "Excluded Assets"):
(a) the corporate charters, qualifications to conduct business as a
foreign corporation, arrangements with registered agents relating to foreign
qualifications, taxpayer and other identification numbers, seals, minute books,
stock transfer books, blank stock certificates, and other documents relating to
the organization, maintenance, and existence of Seller as corporations;
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(b) any of the rights of Seller under this Agreement (or under any
agreement between Seller on the one hand and Buyer on the other hand entered
into on or after the date of this Agreement);
(c) the Franchise Agreements which are being terminated by the parties
simultaneous with the Closing; and
(d) all cash, accounts receivable, real estate of Seller and all of the
personal assets of the owner.
(e) all personal property of Seller located in the Seller's Orlando, FL
condominium which Seller is permitted to remove at their convenience following
the Closing.
(f) (i) worker's compensation insurance deposits, (ii) deposits with
Productivity Partners, Inc., (iii) Seller's deposit of $5,000.00 on its leased
property in Sarasota, FL, (iv) any tax refunds due Seller, and (iv) the cash
surrender value of any life insurance policies of Seller or its shareholders.
1.3 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 specifically listed on EXHIBIT A hereto
(the "Assumed Obligations") and, subject to Section 1.4 of this Agreement, the
Assumed Leases (as hereafter defined). Buyer shall not assume or be responsible
at any time for any liability, obligation, debt or commitment of Seller, whether
absolute or contingent, accrued or unaccrued, asserted or unasserted, or
otherwise, that is not expressly listed on EXHIBIT A hereto. Without limiting
the generality of the foregoing sentence, Buyer shall not assume or be
responsible for any amounts due any of Seller's creditors listed on EXHIBIT A
hereto, except that Seller shall pay any expenses prior to Closing and Buyer
shall be responsible for all ongoing expenses, that will benefit Buyer,
following the Closing.
Seller further agrees to satisfy and discharge as the same shall become due
all of its obligations and liabilities not specifically assumed by Buyer
hereunder. 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 LEASES. Notwithstanding any other provision of this Agreement, Buyer's
assumption of any liabilities or obligations of the Seller with respect to any
lease or leasehold interest (the "Assumed Leases") shall be subject to the terms
of the Lease Assignment and Assumption Agreements to be delivered pursuant to
Sections 2.2(i) of the Agreement.
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1.5 PAYMENT FOR ASSETS. Buyer shall purchase the Assets for an aggregate
purchase price (the "Purchase Price") of Nine-Million Dollars ($9,000,000.00)
calculated in the manner set forth on EXHIBIT F hereto.
1.6 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be allocated
among the Assets as set forth on EXHIBIT B hereto (the "Allocation"). The
Allocation shall be made in accordance with Section 1060 of the Internal Revenue
Code and applicable Treasury regulations. The Buyer and Seller shall (i) be
bound by the Allocation for purposes of determining any Taxes (as hereafter
defined), (ii) prepare and file tax returns on a basis consistent with the
Allocation and (iii) take no position inconsistent with the Allocation in any
proceeding before any taxing authority or otherwise. In the event that the
Allocation is disputed by any taxing authority, the party receiving notice of
the dispute shall promptly notify the other parties hereto of the receipt of
such notice.
1.7 PAYMENT OF PURCHASE PRICE. Buyer shall pay the Purchase Price as
follows:
(a) Cash at Closing of Nine-Million Dollars ($9,000,000.00) to be paid
by bank wire on the day of Closing.
1.8 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, except for the matters set forth in
SCHEDULE 3.3 hereto (the "Permitted Liens").
1.9 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. All
ad valorem and property taxes, and any similar assessment based upon or measured
by Seller' ownership interest in the Assets, shall be prorated between Seller
and Buyer as of the Closing Date based upon such taxes assessed against the
Assets for the tax period in question, or if there is insufficient information
for such tax period, based upon taxes assessed for the immediately preceding tax
period. All such taxes shall be prorated on the basis of a 365- day year. Seller
shall be charged for all such taxes and assessments based upon or measured by
Seller' ownership prior to the Closing Date and Buyer shall be charged for all
such taxes and assessments based upon or measured by Buyer's ownership on or
after the Closing Date. Seller shall have ten (10) business days to provide
Buyer of all such pro-rations, and Buyer shall have five (5) business days
following receipt of all such prorations to pay Seller; time is of the essence
in respect to the afore mentioned time periods. Either Buyer or Seller can seek
a re-proration based on actual taxes at the end of 1997.
2. CLOSING DATE.
2.1 TIME AND PLACE OF CLOSING/RECISSION PENALTY.
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(a) The closing of the sale and purchase of the Assets (the "Closing")
will take place at the offices of OutSource at 10:00 am, Eastern
Standard Time, on March 3, 1997 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., Eastern Standard Time, on the Closing Date.
(b) If, from January 16, 1997 through February 24, 1997, either party
rescinds then the rescinding party shall give notice to the other
and shall pay contemporaneously with such notice a recission fee of
$50,000.00. Notwithstanding the foregoing, if, between January 16,
1997 and February 24, 1997, as a result of OutSource's due
diligence, there is any material change in the business or its
historical financial data, OutSource may cancel the transaction
with no recission fee. If after February 24, 1997 either party
rescinds then the rescinding party shall give notice to the other
and shall pay contemporaneously with such notice a recission fee of
$100,000.00. Notwithstanding the foregoing, if, after February 24,
1997 there is any material change in the current business operation
of STI then OutSource may cancel the transaction with no recission
fee.
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 Bill of Sale, in substantially the form attached as EXHIBIT D
hereto;
(b) An Assignment and Assumption Agreement, in substantially the form
attached as EXHIBIT E hereto;
(c) A Release in substantially the form attached as EXHIBIT G hereto;
(d) Noncompetition Agreements in substantially the form attached as
EXHIBIT H hereto executed by all stockholders of Seller, by which they shall
agree not to compete within a 25 mile radius of any office location being
acquired by OutSource for a period of five years.
(e) An Assignment of Applications, in substantially the form attached
as EXHIBIT K hereto;
(f) A Certificate executed as of the Closing Date by a duly authorized
officer of STI certifying: (i) the resolutions of the Board of Directors and
Shareholders of STI approving the transactions contemplated hereby, and (ii) as
to the accuracy of STI's representations and warranties and as to the
performance and compliance of all of the terms, provisions and conditions to be
performed or complied with by STI at or before Closing;
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(g) The documents required pursuant to Sections 7.2, 7.3, 7.5, 7.11,
and 7.12 of this Agreement;
(h) A mutual termination of all of the Franchise Agreements with
OutSource Franchising, Inc., an affiliate of Buyer, substantially in the form
attached as EXHIBIT M hereto;
(i) An Assignment and Assumption of lease(s) substantially in the form
attached as EXHIBIT J hereto; and
(j) 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) An Assignment and Assumption Agreement, in substantially the form
attached as EXHIBIT E hereto;
(b) A Release in substantially the form attached as EXHIBIT I hereto;
(c) A Certificate executed as of the Closing Date by a duly authorized
officer of Buyer certifying: (i) the resolutions of the Board of Directors of
Buyer approving the transactions contemplated hereby, and (ii) as to the
reasonable accuracy of Buyer's representations and warranties and as to the
performance and compliance of all of the terms, provisions and conditions to be
performed or complied with by Buyer at or before Closing; and
(d) The Master Lease Agreement between Seller and Buyer;
(e) Such other instruments of assumption as Seller and their counsel
may reasonably request.
3. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller, as a material inducement to
Buyer to enter into this Agreement and consummate the transactions contemplated
hereby, make the following representations and warranties to Buyer. Exceptions
to such representations and warranties are set forth in the disclosure Schedule
accompanying this Agreement (the "Disclosure Schedule"). The Disclosure schedule
shall be effective to modify only those representations and warranties to which
the Disclosure schedule makes explicit reference. The phrase "to any Seller's
knowledge" or similar language used in this Section 3 shall, in each case, mean
the best knowledge of Seller.
3.1 TITLE TO ASSETS. Except as described in SCHEDULE 3.3 hereto, Seller has
good, marketable and unencumbered title to the Assets (or, with respect to any
real or personal property
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leases included in the Assets, a valid leasehold interest therein), free and
clear of all mortgages, security interests, liens, claims, encumbrances, title
defects (except for a title defect at Seller's 730 N. Andrews location which
Buyer hereby acknowledges, although the real property is not part of the
designated assets), pledges, charges, assessments, covenants, encroachments and
burdens of any kind or nature whatsoever, and has full right and authority to
transfer and deliver all the Assets. Except as described in SCHEDULE 3.3 hereto,
upon consummation of the transactions contemplated hereby, Seller will have
transferred to Buyer good, marketable and unencumbered title to the Assets (or
with respect to any real or personal property leases included in the Assets, a
valid leasehold interest therein), free and clear of all mortgages, security
interests, liens, claims, encumbrances, title defects, pledges, charges,
assessments, covenants, encroachments and burdens of any kind or nature
whatsoever. The Assets constitute all of the designated assets (except for the
Excluded Assets) that are used in connection with, necessary for, or beneficial
to the operation of the Business.
3.2 CORPORATE STATUS OF STI. STI is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida. STI is
qualified to do business and in good standing in each jurisdiction where the
operation of its business requires that it be so qualified. STI has all
requisite corporate power and authority to own, operate and lease its properties
and 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, with the exception of a Certificate of Use for
Seller's property located at 2425 N. Miami Avenue, which Buyer hereby
acknowledges (Seller hereby acknowledges that it represent to Buyer that Buyer
shall be able to obtain such Certificate as a tenant). An accurate and complete
copy of the Articles of Incorporation and Bylaws of STI, as presently in effect,
are included as an attachment to SCHEDULE 3.2 hereto.
3.3 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.
3.4 CONDITION OF REAL AND PERSONAL PROPERTY; LEASES. All real property
leased by Seller and used in the operation of the Business is listed and
described in SCHEDULE 1.4 hereto. To the best of Seller knowledge, all buildings
and improvements located thereon are in good, functional operating condition and
repair (as differentiated from aesthetic condition), subject only to normal wear
and tear (age alone is not to be considered a functional defect) and, in
Seller's opinion, are
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adequate to conduct the business as it is now being conducted, except for the
North Miami location which has a roof leak (which Seller will repair at Seller's
expense when Buyer obtains the Certificate of Use referred to in section 3.2
above). All material items of tangible personal property and assets owned or
leased by Seller and used in the operation of the Business are described in
SCHEDULE 1.1 hereto. All machinery and equipment, which will be listed in
SCHEDULE 1.1 by Buyer within 10 days following the Closing, conforms to all
applicable ordinances, regulations, and zoning or other laws. Except as
described in SCHEDULE 1.1, all items listed on SCHEDULE 1.1 are in good
operating condition and repair, subject only to normal wear and tear, and are
adequate to conduct the Business as it is now being conducted. Seller has
delivered to Buyer accurate and complete copies of all leases relating to real
and personal property leased by Seller and used in the operation of the Business
and, except as described in SCHEDULE 3.6, all such leases are in full force and
effect, no event of default has been declared thereunder and, to the Seller's
knowledge, no basis for any default exists.
3.5 FINANCIAL STATEMENTS; UNDISCLOSED LIABILITIES. Attached hereto as part
of SCHEDULE 3.7 are the Seller' Financial Statements up through the period
ending December 31, 1996. The Financial Statements (x) present fairly the
financial position and results of operations of the Seller for the dates or
periods indicated thereon, (y) have been prepared in Accordance with generally
accepted accounting principles applied on a consistent basis throughout the
period indicated and (z) accurately reflect the transactions, assets and
liabilities of Seller as of the dates and for the periods presented. Except as
set forth in the Financial Statements or on SCHEDULE 3.7 hereto, Seller has no
debts, liabilities or obligations (except ongoing normal operating items such as
pest control, water coolers, etc.), whether direct or indirect, accrued,
absolute, contingent, matured, known, unknown or otherwise, and whether or not
of a nature required to be reflected or reserved against in a balance sheet in
accordance with generally accepted accounting principles (except for amounts to
be written off due to post period bankruptcy of Waste Magic, Inc.). Seller is
not aware of any basis for the assertion of any claims or liabilities of any
nature which are not fully reflected or reserved against in the Financial
Statements or otherwise disclosed in SCHEDULE 3.7 hereto.
3.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Since January 16, 1997, Seller
have conducted their business only in the normal and ordinary course in
substantially the same manner as heretofore conducted and have used all
reasonable efforts consistent with normal business practices to preserve and
promote such business and to avoid any act that might have a material adverse
effect upon the value of such business as a going concern or upon the Assets. No
event has occurred to prevent the Seller's business from operating in a normal
and usual manner and in substantially the same manner as heretofore operated.
Except as expressly set forth in SCHEDULE 3.8 hereto, since January 16, 1997;
(a) there has not been any damage, destruction or loss, in excess of
$5,000.00, whether covered by insurance or not (other than normal worker's
compensation claims), materially and adversely affecting the Seller's business
or the Assets;
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(b) there has not been any (i) increase (other than normal merit or
cost-of-living increases in the ordinary course of business and consistent with
past practices) or material change: (y) in compensation or bonuses payable to or
to become payable by Seller to its officers, employees or agents, or (z) in any
insurance, pension or other benefit plan, payment or arrangement made to, for or
with any of such officers, employees or agents; or (ii) other material change in
the employment terms of any officer, employee or agent of Seller;
(c) there has not been any sale, transfer or other disposition of any
tangible or intangible asset, or real or personal property or interest therein,
or any mortgage, lien or encumbrance placed thereon except in the ordinary
course of business and consistent with past practice;
(d) there have not been any capital expenditures, capital additions,
capital improvements or charitable contributions made, or committed to be made,
involving, individually or in the aggregate, One Thousand Dollars ($1,000.00) or
more, without the prior written consent of Buyer;
(e) there has not been any failure to maintain any Seller's books,
accounts and records in the usual, regular and ordinary manner and in accordance
with good business practices and consistent with past practice;
(f) there has not been any action taken or omitted to be taken by Seller
which 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 any Material Agreement (as hereinafter defined) or the imposition of
any lien, encumbrance, mortgage or other claim or charge against the Assets;
(g) Seller has not entered into, nor has any Seller or the Assets become
subject to, any contracts, agreements, commitments, indentures, mortgages,
notes, bonds, license, real or personal property leases or other obligations of
the type required to be disclosed in SCHEDULE 3.9 hereto that are not otherwise
disclosed herein;
(h) there has been no change made or authorized in the charter or bylaws
of Seller;
(i) Seller has not issued, sold or otherwise disposed of any of its
capital stock or granted any options, warrants or other rights to purchase or
obtain any of its capital stock;
(j) Other than those amounts that Seller has withdrawn as personal
remuneration, Seller has not declared, set aside or paid any dividend or made
any distribution with respect to its capital stock (whether in cash or in kind)
or redeemed, purchased or otherwise acquired any of its capital stock, except
for a $100,000.00 distribution made to shareholders which Buyer hereby
acknowledges;
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(k) there has not been any other event or condition of any character
which, individually or in the aggregate, has had or could reasonably be expected
to have a material adverse effect on the Assets or on the business, financial
condition or operations of Seller; and
(l) there has not been any commitment to do any of the foregoing.
3.7 CONTRACTS AND COMMITMENTS. EXHIBIT A and SCHEDULE 3.9 hereto together
include a true, correct and complete list of all material contracts, agreements,
commitments, indentures, notes, bonds, licenses, real and personal property
leases and other obligations to which Seller is a party, by which Seller or
their assets or properties are bound or may be affected or which otherwise
relate to the Business (the "Material Agreements"). Without limiting the
generality of the foregoing, the term Material Agreement includes: (a) any lease
or license with respect to any Assets, whether a Seller is tenant, landlord,
licensor or licensee thereunder; (b) any agreement, contract, indenture or other
instrument relating to the borrowing of money or the guarantee of any obligation
or the deferred payment of the purchase price of any Assets; (c) any agreement
concerning a partnership or joint venture; (d) any agreement entered into
outside of the ordinary course of business; or (e) any other agreement (or group
of related agreements) which could involve expenditures (in cash or in kind) by
Seller in excess of $2,500.00 per year. True and complete copies of all of the
Material Agreements are included as part of SCHEDULE 3.9 hereto. Each of the
Material Agreements listed in EXHIBIT A and SCHEDULE 3.9 are valid, binding and
enforceable in accordance with their respective terms and are in full force and
effect and were entered into in the ordinary course of business on an "arms
length" basis. No part of Seller's rights or benefits under any Material
Agreement has been assigned, transferred, or in any way encumbered. Seller is
not in breach of nor has Seller defaulted under any of the Material Agreements
and no occurrence or circumstance exists which constitutes (with or without the
giving of notice or the passage of time or both) a breach or default by Seller
under any Material Agreement. To Seller's knowledge, the other parties to the
Material Agreements are not in default thereunder and no occurrence or
circumstance exists which constitutes or would constitute (with or without the
giving of notice or the passage of time or both) a breach or default by the
other party thereunder. Except as set forth on SCHEDULE 3.9 hereto, neither
Seller nor any of the Assets are bound by or subject to any contract, agreement,
commitment, indenture, mortgage, note, bond, license, real or personal property
lease or other obligation which on the Closing Date cannot be terminated upon
thirty (30) days' written notice by Seller or Buyer without penalty or other
obligation being incurred upon such termination.
3.8 ACCOUNTS RECEIVABLE. Except as set forth in SCHEDULE 3.10 hereto, all
of Seller' accounts receivable (as defined in Florida Statute 679.106 of the
Uniform Commercial Code) have arisen in the ordinary course of business and,
together with the allowance for doubtful accounts, have been reflected in the
Seller' Financial Statements in Accordance with generally accepted accounting
principles. All such accounts receivable are bona fide, valid and binding
receivables representing obligations for the face dollar amount thereof and
should be collected in full, except for an allowance for doubtful accounts, as
set forth on Seller' Financial Statements) within ninety (90) days of their due
date and are subject to
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no defenses, counterclaims or set-offs of any nature whatsoever. The allowance
for doubtful accounts set forth in the Seller' Financial Statements is believed
to be fully adequate to cover any losses anticipated on such receivables (except
a doubtful account with Waste Magic Recyclers, Inc for approximately
$225,000.00).
3.9 INTELLECTUAL PROPERTY. Seller own or are licensed to use all patents,
trademarks, copyrights, trade names, service marks and other trade designations,
including common law rights, registrations, applications for registration,
technology, know-how or processes necessary to conduct the Business
("Intellectual Property"), free and clear of and without conflict with the
rights of others. Each item of Intellectual Property owned or used by Seller
immediately prior to the Closing shall be owned or available for use by Buyer on
identical terms and conditions immediately subsequent to the Closing. Seller has
taken all necessary and desirable action to maintain and protect each item of
Intellectual Property that Seller owns or uses and to consummate the transfer
and assignment thereof to Buyer. Seller has not interfered with, infringed upon,
misappropriated or otherwise come into conflict with any Intellectual Property
Rights of third parties, and Seller has not received any charge, complaint,
claim, demand or notice alleging any such interference, infringement,
misappropriation or violation. To the knowledge of Seller, no third party has
interfered with, infringed upon, misappropriated or otherwise come into conflict
with any Intellectual Property rights of Seller. SCHEDULE 3.11 hereto contains a
true and correct description of the following:
(a) All Intellectual Property currently owned, in whole or in part, by
Seller, and all licenses, royalties, assignments and other similar agreements
relating to the foregoing to which Seller is a party; and
(b) All agreements relating to Intellectual Property that Seller is
licensed or authorized to use from others or which Seller licenses or authorizes
others to use.
3.10 TAXES. All federal, state, local and foreign tax returns (including
information returns) and reports of Seller required by any applicable law, rule,
regulation or procedure of any federal, state, local or foreign agency,
authority or body to be filed have been duly filed by such Seller. Seller has
either (i) paid all federal, state, county, local, foreign and other taxes
(hereinafter "Taxes" or individually a "Tax") required to be paid by them
through the Closing Date and all deficiencies or other additions to Tax,
including interest or penalties owed in connection with any such Taxes or (ii)
included adequate provision for all such Taxes and deficiencies or other
additions to Tax applicable to Seller in the Seller' Financial Statements. All
Taxes and other assessments and levies required to be collected or withheld by
Seller with respect to the operation of their business from customers with
respect to sales of products or from employees for income taxes, social security
taxes and unemployment insurance taxes have been collected or withheld, and
either paid to the respective governmental agencies, or set aside in an account
owned by Seller and established for that purpose.
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Seller is not a party to any pending action or proceeding regarding
assessment or collection of Taxes by any governmental authority. To Seller's
knowledge, no action or proceeding regarding assessment or collection of Taxes
is threatened against Seller. There are no facts or state of facts existing that
(with or without the giving of notice) or the passage of time or both) could
form the basis for any such action or proceeding. Seller has not executed or
filed any agreement with the Internal Revenue Service or any other taxing
authority extending the period for the assessment or collection of any Taxes.
3.11 LITIGATION. There is no suit, proceeding, action, claim or
investigation, at law or in equity, pending or, to Seller's knowledge,
threatened against or affecting in any way the assets, properties or property
interests of Seller, except for the title and environmental problems at Seller's
730 N. Andrews location which Buyer hereby acknowledges) . There are no facts or
state of facts existing that (with or without the giving or notice or the
passage of time or both) could form the basis for any such suit, proceeding,
action, claim or investigation. Neither Seller nor any of their assets, property
or property interests is subject to any judgement, order, writ, injunction or
decree of any court or any federal, state, municipal, foreign or other
governmental authority, department, commission, board, bureau, agency or other
instrumentality except as garnishments against certain employees of Seller.
3.12 EMPLOYEE BENEFIT PLANS; ERISA. Seller does not have any defined
benefit pension plans, defined benefit plans, 401-k plan, simplified employer
plan, or any other pension or thrift plan for its employees except as described
on SCHEDULE 3.12 hereto.
3.13 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.
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3.14 LICENSES, PERMITS AND AUTHORIZATIONS. Seller has all permits,
licenses, certificates of occupancy (other than the N. Miami Certificate of
Use), approvals or other authorizations from and registrations with federal,
state, municipal and foreign governmental agencies and private associations
necessary to operate their business (collectively the "Permits") and all such
Permits are in full force and effect and no suspension or cancellation of any
such Permit is threatened. All such Permits shall continue in full force and
effect on behalf of Buyer following consummation of the transactions
contemplated by this Agreement. A list of the Permits is included in SCHEDULE
3.13 hereto.
3.15 GUARANTEES. Neither the Business nor any of the purchased Assets is or
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.
3.16 CORPORATE AND PERSONNEL DATA; LABOR RELATIONS. Seller is in compliance
with all federal, state, local and foreign laws, rules and regulations affecting
employment and employment practices of Seller, including those relating to terms
and conditions of employment and wages. There are no complaints pending, or to
Seller's knowledge threatened (except for a single, isolated, sexual harassment
problem brought to the attention of Seller and hereby acknowledged by Buyer),
against Seller in connection with any employment related matters. Seller is not
a party to any collective bargaining agreement. SCHEDULE 3.16 includes a monthly
report which reflects Seller' current payroll; this report accurately reflects
Seller' entire current monthly payroll obligations to their employees. SCHEDULE
3.16 also includes a list of the names and compensation levels of any
consultants, independent contractors or temporary employees regularly utilized
by Seller.
3.17 COMPLIANCE WITH LAWS/ENVIRONMENTAL MATTERS.
(a) Seller has at all times conducted their business and the Assets
have been held in compliance with all applicable laws, regulations, ordinances,
orders and other requirements of governmental authorities having jurisdiction
over Seller. Seller has not received any formal or informal notice, advice,
claim or complaint alleging that Seller has violated or may have violated any
law, regulation, ordinance or order and, to Seller's knowledge, no such notice,
advice, claim or complaint of any type is threatened. Seller have at all times
complied and presently comply with all applicable federal, state, local and
foreign laws, rules and regulations respecting occupational safety and health
standards and Seller has not received complaints from any employee or any
federal, state, local or foreign agency alleging any violation of any federal,
state, local or foreign laws respecting occupational safety and health
standards.
(b) Without limiting the generality of the foregoing, (i) all real
property owned or leased by Seller and all buildings, fixtures, equipment and
other improvements located thereon and
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the present use thereof comply in all respects with applicable fire codes,
building codes (except for the North Miami office), health codes, ordinances and
regulations; (ii) the business operations of Seller (including without
limitation their leased and owned real property) are in compliance with all
applicable statutes, regulations, ordinances, decrees or orders of governmental
authorities relating to the environment (collectively the "Environmental Laws")
including without limitation those relating to Hazardous Materials (as
hereinafter defined); (iii) no Hazardous Material has been spilled, released,
deposited or discharged on any of Seller's owned or leased real property, no
such real property has been used as a landfill or waste disposal site, and such
real property is free from pollution, except for the N. Andrews and Sarasota
locations which Buyer hereby acknowledges; (iv) no notice, information, request,
citation, summons or order has been received by Seller and no complaint has been
filed and no penalty has been assessed or threatened by any governmental
authority with respect to (x) any alleged violation by Seller of any
Environmental Law, (y) any alleged failure by Seller to have any environmental
permit required in connection with the operation of their business or (z) any
generation, treatment, storage, recycling, transportation of disposal of any
Hazardous Material; and (v) there have not previously been and are not presently
any claims of any nature pursuant to any Environmental Law on any properties
owned or leased by Seller. (As used in this Agreement, the term Hazardous
Material means any hazardous or toxic substance, material or waste or
pollutants, contaminants or asbestos containing material which is regulated by
any authority in any jurisdiction in which Seller does business.)
3.19 ASSISTANCE. Rick Hermanns, Steve Willocks and Walter Escarzaga shall
make themselves available to Buyer, for up to twenty (20) hours per week, for
four (4) weeks from the date of Closing, at a rate of compensation of $500 per
week to assist in the transition of ownership. Such assistance will be at the
request of OutSource. For another sixty (60) days, following the expiration of
the 4 weeks assistance, Hermanns, Willocks and Escarzaga shall be available
without compensation and will not unreasonably withhold normal requests for
their assistance as may be requested by OutSource from time to time..
3.20 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 Illinois. 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.
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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.
4.3 NO PROHIBITION. No Agreement or Contract has been entered by Buyer
which would prohibit Buyer from entering or performing this Agreement.
4.4 PERMISSION. No permission of any person, individual, group, committee,
body or entity outside the Board of Directors of the Buyer is or will be
required in order for Buyer to lawfully enter or perform this Agreement or any
Agreement referenced herein, however this transaction was previously approved by
Bank of Boston, Triumph Capital Group and Bachow and Associates.
4.5 ENCUMBRANCES. No encumbrances, judgements, liens or tax liens exist
against the purchased property of the Buyer except those set forth in EXHIBIT N.
4.6 TAXES. All taxes levied against Buyer have been paid in full and Buyer
has received no notice of assessment, jeopardy assessment, notice of deficiency,
notice of seizure or other similar document by which Seller is notified that any
taxing entity has alleged any tax is overdue or any penalty is due to such
taxing authority.
4.7 BANKRUPTCY. Buyer has not filed nor had filed against it any bankruptcy
petition, receivership, composition of creditors or other legal proceeding based
on the insolvency of the Buyer or on the failure of Buyer to pay any creditor or
group of creditors, nor has Buyer been notified that any such proceeding is
contemplated.
5. INDEMNIFICATION AND SET OFF.
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"):
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(a) 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; or
(b) any material misrepresentation or inaccuracy in, or omission from
the Disclosure Schedule or from any certificate, schedule, statement, document
or instrument furnished by Seller to Buyer in connection with the transactions
contemplated by this Agreement.
5.2 INDEMNIFICATION OBLIGATION OF BUYER. Buyer hereby agrees to defend,
indemnify and hold harmless Seller 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 Seller (a "Loss"):
(a) 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; or
(b) as a result of, arising from or in connection with any unpaid
amounts due vendors relative to the Assumed Obligations prior to the date of
Closing.
5.3 INDEMNITY PROCEDURE. A party hereto agreeing to be responsible for or
to indemnify against any matter pursuant to this Agreement is referred to herein
as the "Indemnifying Party" and the other party claiming indemnity is referred
to as the "Indemnified Party." The Indemnified Party under this Agreement shall
give prompt written notice to the Indemnifying Party of any liability which
might give rise to a claim of indemnity under this Agreement; provided, however,
that any failure to give such notice will not waive any rights of the
Indemnified Party except to the extent the rights of the Indemnifying Party are
actually prejudiced. As to any claim, action, suit or proceeding by a third
party, the Indemnifying Party shall be entitled to assume defense thereof (at
its expense). The Indemnified Party shall provide such cooperation and such
access to its books, records and properties as the Indemnifying Party shall
reasonably request with respect to such matter; and the parties hereto agree to
cooperate with each other in order to ensure the proper and adequate defense
thereof. If in the Indemnified Party's reasonable judgment, a conflict of
interest between the Indemnified Party and the Indemnifying Party exists in
respect of a claim, or, if the Indemnifying Party, after written notice from the
Indemnified Party, fails to take timely action to defend a claim, the
Indemnified Party may assume defense of such claim or action with counsel of its
choosing at the Indemnifying Party's cost.
5.4 PAYMENT. The Indemnifying Party shall pay to the Indemnified Party any
amounts owed to the Indemnified Party pursuant to this Section 5 within twenty
(20) days after written request from the Indemnified Party to the Indemnifying
Party to make such payment accompanied by appropriate substantiating
documentation. In determining the amount owed hereunder, the
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parties shall make appropriate adjustments for tax benefits and insurance
proceeds. Upon the payment in full of any claim, the Indemnifying Party shall be
subrogated to the rights of the Indemnified Party against any person, firm or
entity with respect to the subject matter of the claim or litigation.
6. CONDITIONS PRECEDENT TO SELLER' OBLIGATION TO CLOSE. Seller' 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):
6.1 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.
6.2 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.
6.3 DELIVERIES. Buyer shall have delivered or caused delivery of the items
set forth in Section 2.3 of this Agreement.
7. 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):
7.1 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.
7.2 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.
7.3 ACCESS. Buyer shall have had full and complete access during normal
business hours to the properties, assets, books, agreements, files and records
of Seller for the purpose of verifying the information set forth herein. Buyer's
due diligence investigation shall not relieve Seller from any liability in
connection with its representations and warranties set forth in this Agreement.
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7.4 FINANCIAL STATEMENTS. Buyer shall have received a copy of the Financial
Statements. Buyer also shall have received a report of Seller' independent
auditors (if any), in form and substance satisfactory to Buyer, regarding
certain matters contained in the Financial Statements.
7.5 PROPERTY. All of Seller' real and personal property shall be in good,
functional operating condition and repair (as differentiated from aesthetic
condition), subject only to normal wear and tear (age alone is not to be
considered a functional defect) and, in Seller's opinion, are adequate to
conduct the business as it is now being conducted, except for the North Miami
location which has a roof leak (which Seller will repair at Seller's expense
when Buyer obtains the Certificate of Use referred to in section 3.2 above).
Notwithstanding the foregoing, Buyer acknowledges that Buyer is assuming Assumed
Leases and acquiring the Assets in SCHEDULE 1.1 in an "as is" condition.
7.6 APPROVAL. The board of directors of Seller shall have approved Seller
entering into this Agreement and the consummation of the transactions
contemplated hereby. The board of directors of Buyer shall have approved Buyer's
entering into this Agreement and consummation of the transactions contemplated
hereby.
7.7 LITIGATION. There shall not have been instituted, pending or threatened
against Seller, any suit, action or other proceeding by any private party or
governmental agency, commission, bureau or body seeking to restrain or prohibit
any of the transactions contemplated by this Agreement. 7.8 Noncompetition
Agreements. Buyer and all of Seller's shareholders shall have entered into a
Noncompetition Agreement prohibiting such shareholders from competing, for a
period of five (5) years from the closing, within a twenty-five (25) mile radius
of any location that Buyer is purchasing from Seller.
7.9 DISCLOSURE SCHEDULE. Seller shall have furnished to Buyer and its
representatives true, correct and complete copies of all documents, agreements
and instruments listed in the Disclosure schedule.
7.10 DELIVERIES. Seller and shall have delivered or caused delivery of the
items set forth in Section 2.2 hereof.
7.11 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.
7.12 OPINION OF SELLER' COUNSEL. Buyer shall have received an opinion from
counsel of Seller dated as of the Closing Date and in substantially the form
attached as EXHIBIT L hereto.
8. POST-CLOSING COVENANTS.
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8.1 FURTHER ASSURANCES. Seller covenants and agrees with Buyer, its
successors and assigns, that they will do, execute, acknowledge and deliver, or
cause to be done, executed, acknowledged and delivered, any and all such further
acts, instruments, papers and documents as may be necessary to carry out and
effectuate the intent and purposes of this Agreement.
9. MISCELLANEOUS.
9.1 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.
9.2 AMENDMENT. This Agreement may not be amended or modified in any
respect, except by the mutual written agreement of the parties hereto.
9.3 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.
9.4 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, for a
period of 365 days, shall survive the Closing and consummation of all the
transactions contemplated hereby.
9.5 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.
9.6 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.
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9.7 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.
9.8 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.
9.9 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: when delivered
by hand; when delivered by facsimile (if written confirmation of receipt of the
facsimile is obtained from the party to be charged with notice); five (5) days
after being deposited in the United States mail, by registered or certified
mail, return receipt requested, postage prepaid; or on the second business day
after being sent (PREPAID for next day delivery), via Federal Express, Purolator
Courier, DHL or other nationally recognized delivery service, as follows:
If to Seller Superior Temporaries, Inc.
9000 W. Sample Road
Suite 404
Coral Springs, FL 33065
954-344-8355
With a copy to: Oscar Soto
Fleming, O'Brian, Fleming
500 East Broward Blvd. - 17th Floor
Ft. Lauderdale, FL 33394
If to Buyer: OutSource International of America, Inc.
Attention: CEO
1144 East Newport Center Drive
Deerfield Beach, Florida 33442
954-418-6200
With a copy to: Steven Sonberg, Esq.
Holland & Knight
One East Broward Boulevard
Fort Lauderdale, FL 33301
Phone: 305 468-7819
Fax: 305 463-2030
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or to such other address as any party hereto may from time to time designate in
writing delivered in a like manner.
9.10 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.
9.11 APPLICABLE LAW. This Agreement shall be governed by, and shall be
construed, interpreted and enforced in Accordance with, the laws of the State of
Florida.
9.12 BROKERS AND AGENTS. Neither Seller nor Buyer has retained any broker
with respect to the transaction contemplated pursuant to this Agreement.
Accordingly, each party agrees to indemnify the other with respect to any claims
made by any third party claiming a brokerage fee or commission arising out of
the transaction contemplated by this Agreement from said party.
9.13 EXPENSES. 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.
9.14 CONFIDENTIALITY. No party hereto shall divulge the existence of the
terms of this Agreement, the transactions contemplated hereby or any information
about another party that such party may have acquired in connection with the
transaction, without the prior written approval of all of the parties hereto,
except and as to the extent (i) obligated by law or, (ii) necessary for such
party to defend or prosecute any litigation in connection with the transactions
contemplated hereby. The parties hereto acknowledge that any breach of the
foregoing will give rise to irreparable injury that is not compensable in
damages and agree that any party may seek and obtain equitable relief in the
form of specific enforcement, temporary restraining order, temporary or
permanent injunction, or any other equitable remedy that may then be available
to such party against the breach or threatened breach of such covenants, in
addition to any other legal remedies which may be available.
9.15 CERTAIN INTERPRETATIONS. Words such as "herein," "hereof," "hereunder"
and words of similar import refer to this Agreement as a whole and not to any
particular Section or subsection of this Agreement. The word "material" as used
in this Agreement shall mean a deviation of more than five (5%) percent.
9.16 CONSENT TO JURISDICTION. The parties to this Agreement agree that any
claim, suit, action or proceeding, brought by either party, arising out of or
relating to this Agreement or the transactions contemplated hereby shall be
submitted for adjudication exclusively in any Florida state or federal court
sitting in Broward County, Florida, and each of the parties hereto expressly
agrees to be bound by such selection of jurisdiction and venue for purposes of
such adjudication.
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Each party (i) waives any objection which it may have that such court is not a
convenient forum for any such adjudication, (ii) agrees and consents to the
personal jurisdiction of such court with respect to any claim or dispute arising
out of or relating to this Agreement or the transactions contemplated hereby and
(iii) agrees that process issued out of such court or in Accordance with the
rules of practice of such court shall be properly served if served personally or
served by certified mail or other form of substituted service, as provided under
the rules of practice of such court. In the event of any suit, action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby the prevailing party thereunder shall be entitled to recover
reasonable attorneys' and paralegal's fees (for negotiations, trials, appeals
and collection efforts) and court costs incurred in connection therewith in
addition to any other relief to which such party may be entitled.
9.17 EQUITABLE RELIEF. The parties hereto acknowledge and agree that any
party's remedy at law for any breach or threatened breach of this Agreement
which relates to requiring that the breaching party take any action or refrain
from taking any action, would be inadequate and such breach or threatened breach
shall be per se deemed as causing irreparable harm to such party. Therefore, in
the event of such breach or threatened breach, the parties hereto agree that in
addition to any available remedy at law, including but not limited to monetary
damages, an aggrieved party shall be entitled to obtain equitable relief in the
form of specific enforcement, temporary restraining order, temporary permanent
injunction, or any other equitable remedy that may then be available to the
aggrieved party.
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement
as of the date first above written.
BUYER:
Witness:
OutSource International of America, Inc.
/s/ ILLEGIBLE
- --------------------------
By: /s/ PAUL M. BURRELL
/s/ PHYLLIS J. HART ---------------------------
- -------------------------- Paul M. Burrell
President
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SELLER:
Witness:
Superior Temporaries, Inc.
/s/ SCOTT J. REIT
- --------------------------
By: /s/ RICHARD HERMANNS
--------------------------
/s/ OSCAR E. SOTO Richard Hermanns
- -------------------------- President
Oscar E. Soto
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LIST OF EXHIBITS
Exhibit A List of Assumed Obligations
Exhibit B Allocation of Purchase Price
Exhibit C Intentionally left blank
Exhibit D Bill of Sale
Exhibit E Assignment and Assumption Agreement
Exhibit F Calculation of Purchase Price
Exhibit G Release by Seller
Exhibit H Noncompetition Agreement
Exhibit I Release by Buyers
Exhibit J Lease Assignment and Assumption Agreement
Exhibit K Assignment of Applications
Exhibit L Opinion of Counsel
Exhibit M Termination of Franchise Agreement
Exhibit N Encumbrances, Judgements and Liens of Buyer
LIST OF SCHEDULES
Schedule 1 Locations
Schedule 1.1 Assets
Schedule 1.4 Assumed Leases
Schedule 3.1 Title to Assets
Schedule 3.2 Corporate Status of STI
Schedule 3.3 Permitted Liens
Schedule 3.6 Condition of Personal Property
Schedule 3.7 Financial Statements; Undisclosed Liabilities
Schedule 3.8 Absence of Certain Changes or Events
Schedule 3.9 Contracts and Commitments
Schedule 3.10 Accounts Receivable
Schedule 3.11 Intellectual Property
Schedule 3.12 Employee Benefit Plans; ERISA
Schedule 3.13 Licenses, Permits and Authorizations
Schedule 3.15 Insurance
Schedule 3.16 Corporate and Personnel Data; Labor Relations