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EXHIBIT 10.29
PARTICIPATING CONSULTANT AGREEMENT ASSIGNMENT
This Participating Consultant Agreement Assignment (this "AGREEMENT") is
made as of December 14, 1998, by ProfitSource Corporation, a Delaware
corporation ("PROFITSOURCE") and The Ringco Group LLC, a California limited
liability company (the "CONSULTANT").
RECITALS
A. National Benefits Consultants, LLC, a Nevada limited liability
company ("NBC") and Consultant entered into that certain Participating
Consultant Agreement ("CONSULTANT AGREEMENT") dated as of January 1, 1997,
pursuant to which NBC has certain payment and other obligations to Consultant.
B. Pursuant to that certain Equity Purchase Agreement of even date
herewith by and between ProfitSource and NBC (ProfitSource and NBC collectively
referred to herein as the "COMPANY") ProfitSource is acquiring all of the
outstanding equity interests of NBC.
C. The Company desires to assume from Consultant and Consultant desires
to assign to the Company all of Consultant's right, title, and interest in and
to the Consultant Agreement and all amendments, additions or documents related
thereto, including, without limitation, all rights to payments arising
thereunder, as of the Closing Date (as defined herein) as specified in this
Agreement.
NOW, THEREFORE, in consideration of the execution and delivery of this
Agreement, and of the promises contained herein, effective as of the Closing
Date the parties hereto agree as follows:
ARTICLE 1
ASSIGNMENT
At the Closing (as defined herein) Consultant shall assign to the
Company and the Company shall assume from Consultant all of Consultant's right,
title and interest in and to the Consultant Agreement and all amendments,
additions or documents related thereto including, without limitation, all rights
to payments arising at any time thereunder (the "ASSIGNMENT"). Notwithstanding
the foregoing, the Company is not assuming any obligation or liability of
Consultant arising out of representations or promises made by Consultant in the
course of sales pursuant to the Consultant Agreement.
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ARTICLE 2
EFFECT OF ASSIGNMENT
Consultant acknowledges that as a result of the Assignment described in
Article 1, Consultant will no longer have any right to receive payments pursuant
to, and will no longer be entitled to conduct business under, the Consultant
Agreement. The Company shall succeed to all such rights and obligations and the
Company shall have no further obligations whatsoever to Consultant arising
under, or in connection with, the Consultant Agreement including, without
limitation, those obligations arising at any time with respect to, or in
connection with, the Approved Customers (as such term is defined in the
Consultant Agreement) listed on Schedule 1 attached hereto .
ARTICLE 3
CONSIDERATION
3.1 CONSIDERATION. In consideration of the terms hereof, the Company
shall at the Closing:
(a) Cash Payment. Deliver to Consultant One Hundred Thousand
Dollars ($100,000) by wire transfer of immediately available funds to the
account set forth below:
Pacific National Bank
Acct # 1004856701
(b) Common Stock. Issue to Consultant 193,804 shares of Series A
Common Stock of the Company (the "SHARES"), certificates for which will be
retained by the Company in order to facilitate replacement of such certificates
upon an initial public offering of the Company's stock (an "IPO") with the
transfer agent's form of certificate, and to facilitate enforcement of the
Stockholder Agreement described in Section 3.4. The Company will keep custody of
the certificates representing such Shares until the IPO and until such Shares
are no longer subject to the Stockholder Agreement and recipients of shares will
execute and deliver blank stock powers. This custody arrangement will not affect
the rights as a stockholder of any permitted recipient of such Shares.
3.2 ASSIGNMENT SAVINGS.
(a) Guaranty. As a result of the Assignment described in Article
1, Consultant guarantees that the Company shall avoid payments that would
otherwise be due Consultant under the Consultant Agreement of a minimum of One
Million Eight Hundred and Seventy Five Thousand Dollars between the Closing Date
and the Closing Date's fifth anniversary (the "TOTAL AVOIDED PAYMENT AMOUNT"),
in amounts equal to at least Three Hundred and Seventy-Five Thousand Dollars per
Measurement Period (the "YEARLY AVOIDED PAYMENT AMOUNT") . For purposes hereof
"MEASUREMENT PERIOD" refers to those five twelve month measurement periods, the
first Measurement Period commencing on the Closing Date, and the succeeding
Measurement Periods commencing on the first, second, third and fourth
anniversaries of the Closing Date, respectively.
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(b) Offset. In the event that the Company fails to avoid payments
equal to the Yearly Avoided Payment Amount for any particular Measurement
Period, the Company shall have the right to offset any payment due to Consultant
under any other agreement between the Consultant and the Company or its
affiliates, whether such agreement is now or hereafter existing, until the
Company avoids payments to Consultant equal to the Yearly Avoided Payment
Amount.
(c) Surplus. In the event that the Company avoids payments to
Consultant in an amount greater than the Yearly Avoided Payment Amount during
any particular Measurement Period, the amount of surplus will be carried forward
and applied to future Measurement Periods in the event that in a future
Measurement Period the Company fails to avoid the Yearly Avoided Payment Amount.
(d) Shortfall Amount. In the event that the Company does not avoid
payments to the Consultant equal to the Total Avoided Payment Amount prior to
the fifth anniversary of the Closing Date (the "ANNIVERSARY DATE"), Consultant
shall be obligated to pay to the Company the difference between the sum of the
actual avoided payments attributable to the Assignment described in Section 1
plus any offsets taken pursuant to Section 3.2(b) and the Total Avoided Payment
Amount (the "SHORTFALL AMOUNT"). On the Anniversary Date Consultant shall
execute a promissory note in the principal amount of the Shortfall Amount,
bearing interest at a rate of (10%), and secured by any payment due to
Consultant under any other agreement between the Consultant and the Company or
its Affiliates, whether such agreement is now or hereafter existing.
3.3 SECURITIES RESTRICTIONS. (a) In addition to the contractual
restrictions on transfer set forth in the Stockholder Agreement referred to in
Section 3.3, the Shares (or interests therein) cannot be offered, sold or
transferred unless the Shares are registered and qualified under the Securities
Act and applicable state securities laws or exemptions from such registration
and qualification requirements are available, or such registration and
qualification requirements are inapplicable, as reflected in an opinion of
counsel to any transferring stockholders in form and substance reasonably
satisfactory to the Company. In the absence of an effective registration
statement covering the Shares or an available exemption from registration under
the Securities Act, the Shares must be held indefinitely, and may not be sold
pursuant to Rule 144 promulgated under the Securities Act unless all of the
conditions of that rule are met.
(b) The Certificates will bear a legend to the effect set forth
below, and appropriate stop transfer instructions against the Shares will be
placed with any transfer agent of the Company to ensure compliance with the
restrictions set forth herein.
"THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW
AND MAY NOT BE SOLD, OFFERED FOR SALE, TRANSFERRED, ASSIGNED,
PLEDGED, OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER SUCH
ACT AND ANY APPLICABLE STATE SECURITIES LAWS, OR UNLESS
PROFITSOURCE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL TO THE
HOLDER OF THE SHARES OR OTHER EVIDENCE, SATISFACTORY TO
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PROFITSOURCE CORPORATION AND ITS COUNSEL, THAT SUCH REGISTRATION
IS NOT REQUIRED."
(c) Each recipient of Shares or interests therein shall, as a
condition to transfer of any Shares or interests therein, cause the transferee
to enter into the Stockholder Agreement described in Section 3.5 and the Voting
Agreement described in Section 3.5, provided that, with respect to each such
agreement, this requirement will not apply to transfers made after the agreement
has terminated.
3.4 REGISTRATION. Consultant will not have any rights to demand
registration of any of the Shares, or to participate in any registration
undertaken by the Company except as set forth in this Section 3.4. If the
Company files a registration statement with the Securities and Exchange
Commission for an IPO of its equity securities or any subsequent public offering
within twenty-four (24) months of the closing of the IPO (not including a
registration statement filed in connection with an acquisition or employee
benefit plan), and if the managing underwriter of such offering believes that
the market will accommodate selling stockholders in the offering, then
Consultant, shall have the right to include in such registration statement and
offering up to that number of Shares and other common stock of the Company (the
"COMMON STOCK") listed on Schedule 3.3. Other stockholders (including but not
limited to stockholders who acquired Common Stock in the Consolidation
Transactions (as defined in Section 5.3) and stockholders who acquired Common
Stock in connection with the formation, or work on behalf of, the Company) will
have rights to include shares of Common Stock in such offering, and if the
aggregate amount of shares that all stockholders with such rights (collectively,
the "SELLING STOCKHOLDERS") desire to include exceeds the number of shares of
Common Stock that can be sold by all Selling Stockholders, then all Selling
Stockholders desiring to sell in the offering will participate pro-rata on the
basis of the relative numbers of shares of Common Stock they originally sought
to include. In general, in such offerings, no Selling Stockholder will be
permitted to include in the aggregate more than half of the shares of Common
Stock held by such Selling Stockholder, or any shares subject to
performance-related restrictions. Shares of Common Stock may only be included
pursuant to the underwriting agreement negotiated between the Company and the
underwriters, and Selling Stockholders must enter into the underwriting
agreement with respect to any shares held by them to be included in the
offering. Each Selling Stockholder shall pay (i) all underwriting discounts and
commissions applicable to such Selling Stockholder's sale of shares of Common
Stock, (ii) such Selling Stockholder's ratable share (based on the relative
number of shares of Common Stock included in the offering) of any fees and
disbursements of a single counsel for all Selling Stockholders, which counsel
shall be selected by the two Selling Stockholders (or affiliated stockholder
groups) selling the most shares of Common Stock in the offering, and (iii) the
fees and costs of any separate counsel retained by such Selling Stockholder
alone.
3.5 STOCKHOLDER AGREEMENT. Consultant shall enter into a "STOCKHOLDER
AGREEMENT" substantially in the form of Exhibit A and a "VOTING AGREEMENT"
substantially in the form of Exhibit B concurrently with the execution of this
Agreement.
3.6 SECURITIES MATTERS.
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(a) Consultant understands that (i) neither the Shares nor the
offer and sale thereof have been registered or qualified under the Securities
Act or any state securities or "BLUE SKY" laws, on the ground that the sale
provided for in this Agreement and the issuance of securities hereunder is
exempt from registration and qualification under Sections 4(2) and 18 of the
Securities Act, and (ii) the Company's reliance on such exemptions is predicated
on Consultant's representations set forth herein.
(b) Consultant acknowledges that an investment in the Company
involves an extremely high degree of risk, lack of liquidity and substantial
restrictions on transferability and that Consultant may lose its entire
investment in the Shares.
(c) the Company has made available to Consultant and Consultants'
advisors the opportunity to obtain information to evaluate the merits and risks
of the investment in the Shares, and Consultant has received all information
requested from the Company. Consultant has had an opportunity to ask questions
and receive answers from the Company regarding the terms and conditions of the
offering of the Shares and the business, properties, plans, prospects, and
financial condition of the Company and to obtain additional information as
Consultant has deemed appropriate for purposes of investing in the Shares
pursuant to this Agreement.
(d) Consultant, personally or through advisors, has expertise in
evaluating and investing in private placement transactions of securities of
companies in a similar stage of development to the Company and has sufficient
knowledge and experience in financial and business matters to assess the
relative merits and risks of an investment in the Company. In connection with
the purchase of the Shares, Consultant has relied solely upon independent
investigations made by Consultant, and has consulted its own investment
advisors, counsel and accountants. Consultant has adequate means of providing
for current needs and personal contingencies, and has no need for liquidity and
can sustain a complete loss of the investment in the Shares.
(e) The Shares to be issued by the Company hereunder will be
acquired for the recipient's own account, for investment purposes, not as a
nominee or agent, and not with a view to or for sale in connection with any
distribution of the Shares in violation of applicable securities laws.
(f) Consultant understands that no federal or state agency has
passed upon the Shares or made any finding or determination as to the fairness
of the investment in the Shares.
(g) Each Member of Consultant represents and warrants that he, she
or it, as the case may be, is an "Accredited Investor" as defined in Rule 501(a)
under the Securities Act and has documented such accredited status by delivery
to the Company of a completed questionnaire in the form of Exhibit C attesting
thereto (the "ACCREDITED INVESTOR QUESTIONNAIRE"). Consultant represents and
warrants that each of its Members is an Accredited Investor.
(h) Consultant has not received any general solicitation or
general advertising concerning the Shares, nor is Consultant aware of any such
solicitation or advertising.
3.7 CONSULTANT ACKNOWLEDGMENTS.
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(a) Consultant is aware that:
(i) The Company has recently been organized and has no
financial or operating history.
(ii) There can be no assurance that any of the
Consolidation Transactions will occur, that the Company will be successful in
accomplishing the purpose for which it was formed or that it will ever be
profitable. No assurance can be given regarding what companies, if any, will
ultimately be acquired by the Company. No company is obligated to participate in
the Consolidation Transactions unless a written agreement to such effect is
entered into by the Company and such company.
(iii) No assurance can be given that an initial public
offering ("IPO") of the Company's securities will occur. If an IPO does occur,
no assurances can be given as to timing of the IPO, whether Consultant would be
able to participate, or the price at which any shares of Common Stock would be
sold.
(iv) No assurance can be given to the ultimate value of the
Common Stock or any Shares issued as consideration for the transactions
contemplated by this Agreement or the liquidity thereof.
(v) All decisions regarding the Consolidation Transactions,
any IPO, and the Company's management and operations will be made by the
Company's management, and certain individuals involved in planning the
Consolidation Transactions and managing the business of the Company will have
the right to vote the Shares pursuant to the Voting Agreement referred to in
Section 3.6.
(b) Consultant acknowledges that no assurances have been made to
Consultant with respect to any of the foregoing and no representations, oral or
written, have been made to Consultant by the Company or any of its employees,
representatives or agents concerning the potential value of the Shares issued as
consideration for the transactions contemplated by this Agreement or the
prospects of the Company, except as set forth herein.
ARTICLE 4
INDEMNIFICATION
4.1 INDEMNIFICATION BY CONSULTANT.
Subject to the limits set forth in this Article 4, Consultant and its
successors and assigns shall indemnify, defend, reimburse and hold harmless the
Company, persons controlling, controlled by, or under common control with the
Company ("AFFILIATES"), and their successors and assigns, and the officers,
directors, employees and agents of any of them, from and against any and all
claims, losses, damages, liabilities, obligations, assessments, penalties and
interest, demands, actions and expenses, whether direct or indirect, known or
unknown, absolute or contingent (including, without limitation, settlement costs
and any legal, accounting and other
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expenses for investigating or defending any actions or threatened actions)
("LOSSES") reasonably incurred by any such indemnitee, arising out of or in
connection with any of the following:
(a) the operations and liabilities of Consultant (other than
obligations assumed by the Company) including, without limitation, any
representations or promises made by Consultant in the course of sales pursuant
to the Consultant Agreement;
(b) any untruth, inaccuracy or material omission of any
representation or warranty made by Consultant or any Member in this Agreement;
or
(c) the breach of any covenant, agreement or obligation of
Consultant contained in this Agreement.
4.2 INDEMNIFICATION PROCEDURE.
(a) Whenever any claim shall arise for indemnification hereunder
(a "CLAIM"), the Company shall promptly give written notice to Consultant with
respect to the Claim after the receipt by the Company of reliable information of
the facts constituting the basis for the Claim; but the failure to timely give
such notice shall not relieve Consultant from any obligation under this
Agreement, except to the extent, if any, that Consultant is materially
prejudiced thereby.
(b) Upon receipt of written notice from the Company of a Claim,
Consultant shall provide counsel (such counsel subject to the reasonable
approval of the Company) to defend the Company against the matter from which the
Claim arose, at Consultant's sole cost, risk and expense. The Company shall
cooperate in all reasonable respects, at Consultant's sole cost, risk and
expense, with Consultant in the investigation, trial, defense and any appeal
arising from the matter from which the Claim arose; provided, however, that the
Company may (but shall not be obligated to) participate in any such
investigation, trial, defense and any appeal arising in connection with the
Claim. If the Company's participation in any such investigation, trial, defense
and any appeal arising from such Claim relates to a legal position or defense
that varies materially from the legal positions or defenses pursued by
Consultant, and if the Company reasonably believes that the Company's interests
will be adversely and materially affected if such legal position or defense is
not pursued, Consultant shall bear the sole cost, risk and expense of the
Company's separate participation, including all fees, costs and expenses of one
separate counsel for the Company (or multiple Companies). If the Company elects
to so participate, Consultant shall cooperate with the Company, and Consultant
shall deliver to the Company or its counsel copies of all pleadings and other
information within Consultant's knowledge or possession reasonably requested by
the Company or its counsel that is relevant to the defense of such Claim and
that will not prejudice Consultant's position, claims or defenses. The Company
and its counsel shall maintain confidentiality with respect to all such
information consistent with the conduct of a defense hereunder. Consultant shall
have the right to elect to settle any claim for monetary damages only without
the Company's consent, if the settlement includes a complete release of the
Company. If the settlement does not include such a release, it will be subject
to the consent of the Company, which will not be unreasonably withheld.
Consultant may not admit any liability of the Company or waive any of the
Company's rights without the Company's prior written consent, which will not be
unreasonably withheld. If the subject of any Claim results in a judgment or
settlement, Consultant shall promptly pay such judgment or settlement.
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(c) If Consultant fails to assume the defense of the subject of
any Claim in accordance with the terms hereof, if Consultant fails diligently to
prosecute such defense, or if Consultant has, in the Company's good faith
judgment, a conflict of interest, the Company may defend against the subject of
the Claim, at Consultant's sole cost, risk and expense, in such manner and on
such terms as the Company deems appropriate, including, without limitation,
settling the subject of the Claim after giving reasonable notice to Consultant.
If the Company defends the subject of a Claim in accordance with this Section,
Consultant shall cooperate with the Company and its counsel, at Consultant's
sole cost, risk and expense, in all reasonable respects, and shall deliver to
the Company or its counsel copies of all pleadings and other information within
Consultant's knowledge or possession reasonably requested by the Company or its
counsel that are relevant to the defense of the subject of any such Claim and
that will not prejudice Consultant's position, claims or defenses. The Company
shall maintain confidentiality with respect to all such information consistent
with the conduct of a defense hereunder.
(d) The obligation of Consultant to indemnify the Company against
Losses arising under this Agreement shall be in addition to any other
obligations Consultant might otherwise have and any other rights the Company
might otherwise have.
4.3 PAYMENT. All payments owing under this Article 4 will be made
promptly as indemnifiable Losses are incurred. If the Company defends the
subject matter of any Claim in accordance with Section 4.2(c) or proceeds with
separate counsel in accordance with Section 4.2(b), the expenses (including
attorneys' fees) incurred by the Company shall be paid by Consultant in advance
of the final disposition of such matter as incurred by the Company, if the
Company undertakes in writing to repay any such advances in the event that it is
ultimately determined that the Company is not entitled to indemnification under
the terms of this Agreement or applicable law.
4.4 SET-OFF. In addition to any rights of set off or other rights that
the Company of any of the other indemnitees may have at common law, by statute
or otherwise, each such indemnitee shall have the right to set off any amount
that is owed by such indemnitee to Consultant against any amount otherwise
payable by Consultant to such indemnitee.
4.5 LIMITATIONS.
(a) Notwithstanding any provision of this Agreement to the
contrary, Consultant shall have no obligation to indemnify any person entitled
to indemnity under this Article 4 or to pay damages in respect of contract
claims arising under this Agreement unless the persons so entitled to indemnity
or recovery thereunder have suffered Losses in an aggregate amount attributable
to all Claims and obligors in excess of Ten Thousand Dollars ($10,000) (the
"THRESHOLD"). Once the aggregate amount of Losses exceeds the Threshold, persons
entitled to recovery shall be entitled to recover the full amount of all Losses,
including any amounts which constituted the Threshold. No person shall be
entitled to indemnification under this Article 4 for Losses directly or
indirectly caused by a breach by such person of any representation, warranty,
covenant or other agreement set forth in this Agreement or any duty to
Consultant.
(b) The maximum aggregate liability of Consultant for all claims
arising under this Agreement shall equal the aggregate consideration paid to
Consultant hereunder. For purposes of
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this Section 4.5(b), the value of Shares received shall be (i) prior to the IPO,
the per share Agreed Price (as defined in the Stockholder Agreement) then
prevailing; and (ii) after the IPO, the per share closing price on the primary
exchange or market on which the Common Stock is traded on the date such
indemnifiable Losses become payable, except that the value of any Shares sold in
bona fide third party transactions will be the gross proceeds to Consultant of
such sale.
ARTICLE 5
MISCELLANEOUS
5.1 CLOSING. The closing of the transactions contemplated by this
Agreement (the "CLOSING") will take place at the offices of Gibson, Dunn &
Crutcher LLP, 4 Park Plaza, Irvine, California, on a date to be selected by the
Company (the "CLOSING Date"). Prior to the Closing Date, the Company shall
provide written notice (the "CLOSING NOTICE") to Consultant informing Consultant
of the date selected as the Closing Date.
5.2 CONFIDENTIALITY. For purposes hereof, Consultant will keep the
matters contemplated herein and all information provided by the Company related
to the Company and the Consolidation Transactions (as defined below) and
potential participants therein, including without limitation Deloitte and Touche
LLP, confidential, and will not provide information about such matters to any
party or use such information except to the extent necessary to effect the
transactions contemplated hereby. The Company will keep the matters contemplated
herein and all information provided by Consultant related to Consultant
confidential, and will not provide information about such matters to any party
or use such information except to the extent necessary to effect the
transactions contemplated hereby. The Company and Consultant shall each cause
their respective Affiliates, officers, directors, members, employees, agents,
and advisors to keep confidential all information received in connection with
the transactions contemplated hereby. Consultant acknowledges that the Company
may provide information about Consultant to other participants in the
Consolidation Transactions. If this Agreement terminates without consummation of
the Closing, Consultant and the Company shall, and shall cause their Affiliates
to, each maintain the confidentiality of any information obtained from the other
in connection with the transactions contemplated hereby, the Consolidation
Transactions, and the Company's business plans (the "INFORMATION"), other than
Information that (i) was in the public domain before the date of this Agreement
or subsequently came into the public domain other than as a result of disclosure
by the party to whom the Information was delivered; or (ii) was lawfully
received by a party from a third party free of any obligation of confidence of
or to such third party; or (iii) was already in the possession of the party
prior to receipt thereof, directly or indirectly, from the other party; or (iv)
is required to be disclosed in a judicial or administrative proceeding after
giving the other party as much advance notice of the possibility of such
disclosure as practicable so that the other party may attempt to stop such
disclosure; or (v) is subsequently and independently developed by employees of
the party to whom the Information was delivered without reference to the
Information. If this Agreement terminates without consummation of the Closing,
the Company, on the one hand, and Consultant, on the other, shall return to the
other all material containing or reflecting the Information provided by the
other, shall not retain any copies, extracts, or other reproductions thereof or
derived therefrom, and shall thereafter refrain from using the Information and
shall maintain its confidentiality pursuant to this Agreement.
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5.3 CONSOLIDATION TRANSACTION. Concurrent with the Closing hereof, the
Company is acquiring in a series of transactions various other companies engaged
in the business of cost reduction, cost recovery and profit enhancement services
by means of mergers into the Company, or acquisitions by the Company of all or
substantially all of the assets or stock or other equity interests of such
companies (collectively, the "CONSOLIDATION TRANSACTIONS"). Consultant
acknowledges that as a result of the complexity of the transactions contemplated
hereby and the Consolidation Transactions, the Closing contemplated hereby and
the closing of the Consolidation Transactions must be concurrent at a time
designated by the Company. Accordingly, Consultant shall upon receipt of the
Closing Notice but prior to the Closing Date (i) provide any outstanding
documentation required to effect the Closing pursuant to this Agreement in
escrow pending release upon authorization by Consultant at the Closing, (ii)
complete performance of their respective obligations hereunder by the Closing.
5.4 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed given upon personal delivery
or three (3) days after being mailed by certified or registered mail, postage
prepaid, return receipt requested, or one (1) business day after being sent via
a nationally recognized overnight courier service if overnight courier service
is requested from such service or upon receipt of electronic or other
confirmation of transmission if sent via facsimile to the parties, their
successors in interest or their assignees at the following addresses and
telephone numbers, or at such other addresses or telephone numbers as the
parties may designate by written notice in accordance with this Section 5.4:
If to the Company: Chief Executive Officer
ProfitSource Corporation
695 Town Center Drive, Suite 400
Costa Mesa, California 92626
Tel: (714) 429-5500
Fax: (714) 429-5559
With a copy to: Brian W. Copple
Gibson, Dunn & Crutcher LLP
4 Park Plaza, Jamboree Center
Irvine, California 92614
Tel: (949) 451-3800
Fax: (949) 451-4220
If to Consultant: Mark Coleman
ProfitSource Corporation
695 Town Center Drive, Suite 400
Costa Mesa, California 92626
Tel: (714) 429-5500
Fax: (714) 429-5559
5.5 GOVERNING LAW. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, without
regard to its conflicts-of-law principles.
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5.6 COUNTERPARTS. Facsimile transmission of any signed original document
and/or retransmission of any signed facsimile transmission will be deemed the
same as delivery of an original. At the request of any party, the parties will
confirm facsimile transmission by signing a duplicate original document. This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which shall constitute but one and the same instrument.
5.7 PUBLICITY. Prior to the Closing Date, no party may, or may it permit
its Affiliates to, issue or cause the publication of any press release or other
public announcement with respect to this Agreement or the transactions
contemplated hereby without the prior written consent of the Company and
Consultant, except that the Company may disclose details of this Agreement to
other participants in, or as necessary to effect, the Consolidation
Transactions. Notwithstanding the foregoing, in the event any such press release
or announcement is required by law to be made by the party proposing to issue
the same, such party shall consult in good faith with the other party as far in
advance as practicable to the issuance of any such press release or
announcement.
5.8 COMPLETE AGREEMENT. This Agreement and the exhibits hereto contain
or will contain the entire agreement between the parties hereto with respect to
the transactions contemplated herein and therein and shall supersede all
previous oral and written and all contemporaneous oral negotiations,
commitments, and understandings.
5.9 MODIFICATIONS, AMENDMENTS AND WAIVERS. At any time prior to the
Closing Date of this Agreement, any party may, (a) waive any inaccuracies in the
representations and warranties of any other party contained in this Agreement;
and (b) waive compliance by any other party with any of the covenants or
agreements contained in this Agreement. No waiver of any of the provisions of
this Agreement will be considered, or will constitute, a waiver of any of the
rights of remedies, at law or equity, of the party entitled to the benefit of
such provisions unless made in writing and executed by the party entitled to the
benefit of such provision.
5.10 HEADINGS; REFERENCES. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. References herein to Articles, Sections and
Exhibits refer to the referenced Articles, Sections or Exhibits hereof unless
otherwise specified.
5.11 SEVERABILITY. Any provision of this Agreement which is invalid,
illegal, or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality, or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement invalid,
illegal, or unenforceable in any other jurisdiction.
5.12 EXPENSES OF TRANSACTIONS. All fees, costs and expenses incurred by
the Company in connection with the transactions contemplated by this Agreement
shall be borne by the Company, and all fees, costs, and expenses incurred by
Consultant in connection with the transactions contemplated by this Agreement
shall be borne by Consultant.
5.13 BINDING EFFECT. This Agreement will be binding upon and will inure
to the benefit of each of the parties and their respective successors, permitted
assigns and legal
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representatives. None of the parties may assign this Agreement without the prior
written consent of the other parties.
5.14 FURTHER ASSURANCES. Each of the parties shall execute such
documents and other papers and perform such further acts as may be reasonably
required or desirable to carry out the provisions hereof and the transactions
contemplated hereby.
5.15 INTERPRETATION OF AGREEMENT. In the event that interpretation of
this Agreement, or any portion thereof, be necessary, it is deemed that this
Agreement was prepared by each of the parties jointly and equally and shall not
be interpreted against any of the parties on the ground that such party drafted
the Agreement or caused it to be prepared.
5.16 ARBITRATION.
(a) Any controversy or claim arising out of or relating to this
Agreement shall be solely and finally settled by arbitration administered by the
American Arbitration Association (the "AAA") in accordance with its Commercial
Arbitration Rules as then in effect (the "RULES"), except to the extent such
Rules vary from the following provisions. The arbitration shall be conducted by
one independent and impartial arbitrator, appointed by the AAA; provided
however, if the claim and any counterclaim, in the aggregate, together with
other arbitrations that are consolidated pursuant to Section 5.16(f), exceed
Five Hundred Thousand Dollars ($500,000) (the "ARBITRATION THRESHOLD"),
exclusive of interest and attorneys' fees, the dispute shall be heard and
determined by three (3) arbitrators as provided herein (such arbitrator or
arbitrators are hereinafter referred to as the "ARBITRATOR"). The judgment of
the award rendered by the Arbitrator may be entered in any court having
jurisdiction thereof. The arbitration proceedings shall be held in Orange
County, California unless the parties to the arbitration agree to another
location.
(b) If a party hereto determines to submit a dispute for
arbitration pursuant to this Section 5.16, such party shall furnish the other
party with whom it has the dispute with a notice of arbitration as provided in
the Rules (an "ARBITRATION NOTICE") which, in addition to the items required by
the Rules, shall include a statement of the nature, with reasonable detail, of
the dispute. A copy of the Arbitration Notice shall be concurrently provided to
the AAA, along with a copy of this Agreement, and if pursuant to Section 5.16(a)
one (1) Arbitrator is to be appointed, a request to appoint the Arbitrator. If a
party has a counterclaim against the other party, such party shall furnish the
party with whom it has the dispute a notice of such claim as provided in the
Rules (a "NOTICE OF COUNTERCLAIM") within ten(10) days of receipt of the
Arbitration Notice, which, in addition to the items required by the Rules, shall
include a statement of the nature, with reasonable detail, of the dispute. A
copy of the Notice of Counterclaim shall be concurrently provided to the AAA. If
the claim set forth in the Notice of Counterclaim causes the aggregate amount in
dispute to exceed the Arbitration Threshold, the Notice of Counterclaim shall so
state. If pursuant to Section 5.16(a) three (3) Arbitrators are to be appointed,
within fifteen (15) days after receipt of the Arbitration Notice or the Notice
of Counterclaim as applicable, each party shall select one person to act as
Arbitrator and the two (2) selected shall select a third arbitrator within ten
(10) days of their appointment. If the Arbitrators selected by the parties are
unable or fail to agree upon the third arbitrator within such time, the third
arbitrator shall be selected by the AAA. Each arbitrator shall be a practicing
attorney or a retired or former judge with at least
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twenty (20) years experience with and knowledge of securities laws, complex
business transactions, and mergers and acquisitions.
(c) Once an Arbitrator is assigned to hear the matter, the
Arbitrator shall schedule a pre-hearing conference to reach agreement on
procedural and scheduling matters, arrange for the exchange of information,
obtain stipulations and attempt to narrow the issues.
(d) At the pre-hearing conference, the Arbitrator shall have the
discretion to order, to the extent the Arbitrator deems relevant and
appropriate, that each party may (i) serve a maximum of one set of no more than
twenty (20) requests for production of documents and one set of ten (10)
interrogatories (without subparts) upon the other parties; and (ii) depose a
maximum of five (5) witnesses. All objections to discovery are reserved for the
arbitration hearing except for objections based on privilege and proprietary or
confidential information. The responses to the document demand, the documents to
be produced thereunder, and the responses to the interrogatories shall be
delivered to the propounding party thirty (30) days after receipt by the
responding party of such document demand or interrogatory. Each deposition shall
be taken on reasonable notice to the deponent, and must be concluded within
eight (8) hours and all depositions must be taken within forty-five (45) days
following the pre-hearing conference. Any party deposing an opponent's expert
must pay the expert's fee for attending the deposition. All discovery disputes
shall be decided by the Arbitrator.
(e) The parties must file briefs with the Arbitrator at least
three (3) days before the arbitration hearing, specifying the facts each intends
to prove and analyzing the applicable law. The parties have the right to
representation by legal counsel throughout the arbitration proceedings. The
presentation of evidence at the arbitration hearing shall be governed by the
Federal Rules of Evidence. Oral evidence given at the arbitration hearing shall
be given under oath. Any party desiring a stenographic record may secure a court
reporter to attend the arbitration proceedings. The party requesting the court
reporter must notify the other parties and the Arbitrator of the arrangement in
advance of the hearing, and must pay for the cost incurred.
(f) Any arbitration can be consolidated with one or more
arbitrations involving other parties, which arise under agreement(s) between the
Company and such other parties, if more than one such arbitration is commenced
and any party thereto contends that two or more arbitrations are substantially
related and that the issues should be heard in one proceeding, the Arbitrator
selected in the first-filed of such proceedings shall determine whether, in the
interests of justice and efficiency, the proceedings should be consolidated
before that Arbitrator.
(g) The Arbitrator's award shall be in writing, signed by the
Arbitrator and shall contain a concise statement regarding the reasons for the
disposition of any claim.
(h) To the extent permissible under applicable law, the award of
the Arbitrator shall be final. It is the intent of the parties that the
arbitration provisions hereof be enforced to the fullest extent permitted by
applicable law.
5.17 SUBMISSION TO JURISDICTION. All actions or proceedings arising in
connection with this Agreement for preliminary or injunctive relief or matters
not subject to arbitration, if any, shall be tried and litigated exclusively in
the state or federal courts located in the County of
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Orange, State of California. The aforementioned choice of venue is intended by
the parties to be mandatory and not permissive in nature, thereby precluding the
possibility of litigation between the parties with respect to or arising out of
this Agreement in any jurisdiction other than that specified in this paragraph.
Each party hereby waives any right it may have to assert the doctrine of forum
non conveniens or similar doctrine or to object to venue with respect to any
proceeding brought in accordance with this paragraph, and stipulates that the
State and Federal courts located in the County of Orange, State of California
shall have in personam jurisdiction over each of them for the purpose of
litigating any such dispute, controversy, or proceeding. Each party hereby
authorizes and accepts service of process sufficient for personal jurisdiction
in any action against it as contemplated by this Section by registered or
certified mail, return receipt requested, postage prepaid, to its address for
the giving of notices as set forth in Section 5.4. Nothing herein shall affect
the right of any party to serve process in any other manner permitted by law.
5.18 ATTORNEYS' FEES. If the Company or any of its Affiliates,
successors or assigns brings any action, suit, counterclaim, cross-claim,
appeal, arbitration, or mediation for any relief against Consultant or any of
its Affiliates, successors or assigns, or if Consultant or any of its
Affiliates, successors or assigns brings any action, suit, counterclaim,
cross-claim, appeal, arbitration, or mediation for any relief against the
Company or any of its Affiliates, successors or assigns, declaratory or
otherwise, to enforce the terms hereof or to declare rights hereunder
(collectively, an "Action"), in addition to any damages and costs which the
prevailing party otherwise would be entitled, the non-prevailing party shall pay
to the prevailing party a reasonable sum for attorneys' fees and costs (at the
prevailing party's attorneys' then-prevailing rates) incurred in bringing and
prosecuting such Action and/or enforcing any judgment, order, ruling, or award
(collectively, a "Decision") granted therein, all of which shall be deemed to
have accrued on the commencement of such Action and shall be paid whether or not
such action is prosecuted to a Decision. Any Decision entered in such Action
shall contain a specific provision providing for the recovery of attorneys' fees
and costs incurred in enforcing such Decision.
For the purposes of this Section, attorneys' fees shall include, without
limitation, fees incurred in the following: (1) postjudgment motions and
collection actions; (2) contempt proceedings; (3) garnishment, levy and debtor
and third party examinations; (4) discovery; and (5) bankruptcy litigation.
For purposes of this paragraph, "PREVAILING PARTY" includes, without
limitation, a party who agrees to dismiss an action on the other party's payment
of the sum allegedly due or performance of the covenants allegedly breached, or
who obtains substantially the relief sought by it. If there are multiple claims,
the prevailing party shall be determined with respect to each claim separately.
The prevailing party shall be the party who has obtained the greater relief in
connection with any particular claim, although, with respect to any claim, it
may be determined that there is no prevailing party.
5.19 ENFORCEMENT OF THE AGREEMENT. Consultant and the Company
acknowledge that irreparable damage would occur if any of the obligations of
Consultant under this Agreement were not performed in accordance with their
specific terms or were otherwise breached. The
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Company will be entitled to an injunction or injunctions to prevent breaches of
this Agreement by Consultant and to enforce specifically the terms and
provisions hereto, this being in addition to any other remedy to which the
Company is entitled at law or in equity.
5.20 TERMINATION. This Agreement and the transactions contemplated
hereby may be terminated (a) by the Company, if (i) Consultant fails to comply
in any material respect with any of its or their covenants or agreements
contained herein, or (ii) any of the representations and warranties of the
Consultant is breached or is inaccurate in any material way; (b) by the
Consultant if (i) the Company fails to comply in any material respect with any
of its covenants or agreements contained herein, or (ii) any of the
representations and warranties of the Company is breached or is inaccurate in
any material way; or (c) by the Company or Consultant if (i) a governmental
entity has issued a non-appealable order, decree or ruling or taken any other
action (which order, decree or ruling the parties hereto have used their best
efforts to lift), which permanently restrains, enjoins or otherwise prohibits
the transactions contemplated by this Agreement; or (ii) a condition to its
performance hereunder has not been satisfied or waived prior to November 30,
1998; provided, however that if the board of directors of Buyer should, in good
faith, determine that it is necessary to extend the Closing for the purpose of
facilitating the financing of the Consolidation Transactions, it may extend such
date by thirty-five (35) days. Notwithstanding the foregoing, a party may not
terminate this Agreement if the event giving rise to the termination right
results from the willful failure of such party to perform or observe any of the
covenants or agreements set forth herein to be performed or observed by such
party or if such party is, at such time, in material breach of this Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first above set forth.
COMPANY" "CONSULTANT"
PROFITSOURCE CORPORATION, a THE RINGCO GROUP LLC, a California limited
Delaware corporation liability company
By: /s/ ERIK WITTS By: /s/ MARK COLEMAN
----------------------------- -----------------------------------
Mark Coleman, in his capacity as a
Name: Erik Witts Manager and as a Member
-----------------------------
By: /s/ DAVID RINGLER
Title: President -----------------------------------
-------------------------- David Ringler, in his capacity as a
Manager and as a Member
By: /s/ DAVID SCHUPP
-----------------------------------
David Schupp, in his capacity as a
Manager and as a Member
By: /s/ FREDERICK TOWNSEND
-----------------------------------
Frederick Townsend, in his capacity
as a Manager and as a Member
By: /s/ JUKKA LIPPONEN
-----------------------------------
Jukka Lipponen, in his capacity as a
Manager and as a Member
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Exhibits
Exhibit A Form of Stockholder Agreement
Exhibit B Form of Voting Agreement
Exhibit C Form of Accredited Investor Questionnaire
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SCHEDULE 1 TO PARTICIPATING CONSULTANT AGREEMENT ASSIGNMENT
1. Travelers Indemnity Company
2. Hartford Fire Insurance Company
3. American Medical Security, Inc.
4. Fortis Insurance Company (Fortis Benefits, Time Insurance Company, John Alden Life
Insurance Company)
5. Bridgestone/Firestone, Inc.