Exhibit 10.1
ASSET PURCHASE AGREEMENT
by and among
NATIONAL ASSET RECOVERY CORP.
a Nevada Company
and
ADVANCED RECOVERY FLORIDA
A sole proprietorship
and
MICHAEL JAMES BLACKBURN
The owners of Advanced Recovery Florida
DATED: October 19, 2010
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement, dated as of October 19, 2010, is made by and
among National Asset Recovery Corp., a Nevada corporation (the "NARC"),
Advanced Recovery Florida, a sole proprietor (the "Company"), and the Michael
James Blackburn , owner of the Company (the "Owner").
RECITALS
WHEREAS, the Owner has agreed to transfer to NARC, and NARC has agreed to
acquire from the Owner, , all of the assets and certain liabilities of Company
in exchange the mutually agreed purchase price set forth in this Agreement;
and
NOW THEREFORE, in consideration of the premises and the mutual covenants,
agreements, representations and warranties contained herein, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION I
EXCHANGE OF SHARES AND SHARE CONSIDERATION
1.1 Purchased Assets. At the Closing, the Owner shall transfer 100% of the
Assets listed on Schedule 1.1 hereto of the Company to NARC in consideration
of an aggregate of 625,000 fully paid and nonassessable shares of Common Stock
of NARC, which shall represent approximately 0.7% of the issued and
outstanding shares of NARC.
1.2 Assumed Liabilities. At the Closing, NARC shall assume the Liabilities
of the Company listed on Schedule 1.2.
SECTION II
2.1 The NARC Common Stock to be to the Company shall be deemed to constitute
$250,000. The number of shares is based at $0.40 per share, totaling 625,000
shares (the "Guaranteed Shares"). All of the shares shall be deemed to be
"restricted" as that term is defined in the Securities Act of 1933, as
amended. NARC shall deliver NARC Shares within two business days of the
Closing Date. If the closing price of NARC's Common Stock is such that the
value of the Guaranteed Shares is less than $120,000 on the date which is six
month after the issuance date (or next trading day in the event such date is a
weekend day or holiday), the Company shall purchase an aggregate of 300,000
shares of Guaranteed Shares for $120,000. Also, if the closing price of the
Company's shares of Common Stock on the date which is eight months after
issuance (or next trading day in the event such date is a weekend day or
holiday) is less than $0.40 per share, the Company shall issue additional
shares of Common Stock to render the market value of the unsold Guaranteed
Shares to be equal to $0.40 per share, up to an aggregate of $250,000. If NARC
files for bankruptcy protection within the first 8 months then the Owner will
receive all equipment returned and the leased buildings must be vacated
immediately.
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2.2 Michael J. Blackburn shall hold a lien(s) on the equipment that is to be
transferred to NARC, pursuant to this agreement. Michael J. Blackburn shall
perfect the lien(s) with the State of Florida. Once all terms of Section 2.1
of this agreement are met, Michael J. Blackburn shall issue a release of all
liens on the equipment that is to be transferred to NARC.
SECTION III
CLOSING DATE
3.1 Closing Date. The closing of the Purchase (the "Closing") shall take
place at 10:00 a.m. Eastern Time on the day all of the closing conditions set
forth in this Agreement have been satisfied or waived, or at such other time
and date as the parties hereto shall agree in writing (the "Closing Date"), at
the offices of executive offices of NARC, or at another mutually agreed upon
time and place.
SECTION IV
REPRESENTATIONS AND WARRANTIES OF OWNER
4.1 Generally. Subject to the disclosures contained in the relevant
Schedules attached hereto, the Owner hereby represents and warrants to NARC as
follows:
4.1.1 Authority. The Owner has the right, power, authority and capacity to
execute and deliver this Agreement and each of the Transaction Documents to
which the Owner is a party, to consummate the transactions contemplated by
this Agreement and each of the Transaction Documents to which the Owner is a
party, and to perform the Owner's obligations under this Agreement and each of
the Transaction Documents to which the Owner is a party. This Agreement has
been, and each of the Transaction Documents to the Owner is a party will be,
duly and validly authorized and approved, executed and delivered by the Owner.
Assuming this Agreement and the Transaction Documents have been duly and
validly authorized, executed and delivered by the parties thereto other than
the Owner, this Agreement is, and each of the Transaction Documents to which
the Owner is a party have been, duly authorized, executed and delivered by the
Owner and constitutes the legal, valid and binding obligation of the Owner,
enforceable against the Owner in accordance with their respective terms,
except as such enforcement is limited by general equitable principles, or by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors rights generally.
4.1.2 No Conflict. Neither the execution or delivery by each the Owner of
this Agreement or any Transaction Document to which the Owner is a party, nor
the consummation or performance by the Owner of the transactions contemplated
hereby or thereby will, directly or indirectly, (a) contravene, conflict with,
or result in a violation of any provision of the organizational documents of
the Owner ; (b) contravene, conflict with, constitute a default (or an event
or condition which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination or acceleration of, any agreement
or instrument to which the Owner is a party or by which the properties or
assets of the Owner are bound; or (c) contravene, conflict with, or result in
a violation of, any law or order to which the Owner, or any of the properties
or assets of the Owner , may be subject.
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4.1.3 Litigation. There is no pending legal proceeding against the Owner that
involves the Company or that challenges, or may have the effect of preventing,
delaying or making illegal, or otherwise interfering with, any of the
transactions contemplated by this Agreement and, to the knowledge of the
Owner, no such legal proceeding has been threatened, and no event or
circumstance exists that is reasonably likely to give rise to or serve as a
basis for the commencement of any such legal proceeding.
4.1.4 No Brokers or Finders. No Person has, or as a result of the
transactions contemplated herein will have, any right or valid claim against
the Owner for any commission, fee or other compensation as a finder or broker,
or in any similar capacity, and the Owner will indemnify and hold NARC
harmless against any liability or expense arising out of, or in connection
with, any such claim.
4.2 Investment Representations. The Owner hereby represents and warrants,
solely with respect to NARC as follows:
4.2.1 Acknowledgment. The Owner understands and agrees that NARC Shares to be
issued pursuant to this Agreement have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), or the securities
laws of any state of the U.S.
4.2.2 Stock Legends. The Owner hereby agrees with NARC as follows:
(a) Securities Act Legend - Accredited Investor. The certificate(s)
evidencing NARC Shares issued to the Owner and each certificate issued in
transfer thereof, will bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER SUCH SECURITIES NOR ANY INTEREST THEREIN MAY BE
OFFERED, SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS OR (2) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS, IN WHICH CASE THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE COMPANY AN OPINION OF COUNSEL, WHICH COUNSEL AND OPINION ARE
REASONABLY SATISFACTORY TO THE COMPANY, THAT SUCH SECURITIES MAY BE OFFERED,
SOLD, PLEDGED, ASSIGNED OR OTHERWISE TRANSFERRED IN THE MANNER CONTEMPLATED
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS.
(b) Opinion. The Owner will not transfer any or all of NARC Shares absent
an effective registration statement under the Securities Act and applicable
state securities law covering the disposition of the Shareholders' NARC Shares
without first providing NARC with an opinion of counsel (which counsel
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and opinion are reasonably satisfactory to NARC) to the effect that such
transfer will be exempt from the registration and the prospectus delivery
requirements of the Securities Act and the registration or qualification
requirements of any applicable U.S. state securities laws.
SECTION V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Subject to the disclosures contained in the relevant Schedules attached
hereto, the Company represents and warrants to NARC as follows:
5.1 Organization and Qualification.
5.1.1 The Company has all requisite authority and power, governmental
licenses, authorizations, consents and approvals to carry on its business as
presently conducted, to own, hold and operate its properties and assets as now
owned, held and operated by it.
5.2 Subsidiaries. - The Company does not own directly or indirectly, any
equity or other ownership interest in any corporation, partnership, joint
venture or other entity or enterprise.
5.3 Organizational Documents and Financial Statements.
5.3.1 The Company has delivered its audited financial statements for the past
two years (including the year ended December 31, 2009) and the Company
represents that they comply with generally accepted accounting principles
(GAAP) and are true and correct.
5.4 Authorization and Validity of this Agreement. The Company has all
requisite authority and power (corporate and other), authorizations, consents
and approvals to enter into this Agreement and each of the Transaction
Documents to which the Company is a party, to consummate the transactions
contemplated by this Agreement and each of the Transaction Documents to which
the Company is a party, to perform its obligations under this Agreement and
each of the Transaction Documents to which the Company is a party, The
execution, delivery and performance by the Company of this Agreement and each
of the Transaction Documents to which the Company is a party requires no
authorization, consent, approval, license, exemption of or filing or
registration with any governmental authority or other person.
5.5 Binding Obligations. Assuming this Agreement and the Transaction
Documents have been duly and validly authorized, executed and delivered by the
parties hereto and thereto other than the Company, this Agreement and each of
the Transaction Documents to which the Company is a party are duly authorized,
executed and delivered by the Company and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforcement is limited
by general equitable principles, or by bankruptcy, insolvency and other
similar laws affecting the enforcement of creditors rights generally.
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5.6 No Violation. Neither the execution nor the delivery by the Company of
this Agreement or any Transaction Document to which the Company is a party,
nor the consummation or performance by the Company of the transactions
contemplated hereby or thereby will, directly or indirectly, (a) contravene,
conflict with, or result in a violation of any provision of the organizational
documents of the Company; (b) contravene, conflict with, constitute a default
(or an event or condition which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination or acceleration of,
or result in the imposition or creation of any lien under, any agreement or
instrument to which the Company is a party or by which the properties or
assets of the Company are bound; (c) contravene, conflict with, or result in a
violation of, any law or order to which the Company, or any of the properties
or assets owned or used by the Company, may be subject; or (d) contravene,
conflict with, or result in a violation of, the terms or requirements of, or
give any governmental authority the right to revoke, withdraw, suspend,
cancel, terminate or modify, any licenses, permits, authorizations, approvals,
franchises or other rights held by the Company or that otherwise relate to the
business of, or any of the properties or assets owned or used by, the Company.
5.7 Compliance with Laws and Other Instruments. The business and operations
of the Company have been and are being conducted in accordance with all
applicable laws and orders.
5.8 Certain Proceedings. There is no pending legal proceeding that has been
commenced against the Company and that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of
the transactions contemplated in this Agreement. To the Company's knowledge,
no such legal proceeding has been threatened.
5.9 No Brokers or Finders No person has, or as a result of the transactions
contemplated herein will have, any right or valid claim against the Company
for any commission, fee or other compensation as a finder or broker, or in any
similar capacity, and the Company will indemnify and hold NARC harmless
against any liability or expense arising out of, or in connection with, any
such claim.
5.10 Title to and Condition of Properties. The Company owns (with good and
marketable title in the case of real property) or holds under valid leases or
other rights to use all real property, plants, machinery and equipment
necessary for the conduct of the business of the Company as presently
conducted, free and clear of all liens. The material buildings, plants,
machinery and equipment necessary for the conduct of the business of the
Company as presently conducted are structurally sound, are in good operating
condition and repair and are adequate for the uses to which they are being
put, in each case, taken as a whole, and none of such buildings, plants,
machinery or equipment is in need of maintenance or repairs, except for
ordinary, routine maintenance and repairs that are not material in nature or
cost.
5.11 Liabilities. Except as indicated in Company's balance sheet dated
August 1, 2010 totaling a maximum of $50,00,000 Company has not incurred any
external liabilities, obligations, claims or losses (whether liquidated or
unliquidated, secured or unsecured, absolute, accrued, contingent or
otherwise) which, individually or in the aggregate, are reasonably likely to
cause a material adverse effect.
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SECTION VI
REPRESENTATIONS AND WARRANTIES OF NARC
Subject to the disclosures contained in the relevant Schedules attached
hereto, NARC represents and warrants to Owner and the Company as follows:
6.1 Organization and Qualification. NARC is duly organized, validly
existing and in good standing under the laws of Nevada, has all requisite
corporate authority and power, governmental licenses, authorizations, consents
and approvals to carry on its business as presently conducted and to own, hold
and operate its properties and assets as now owned, held and operated by it.
NARC is duly qualified, licensed or domesticated as a foreign corporation in
good standing in each jurisdiction wherein the nature of its activities or its
properties owned, held or operated makes such qualification, licensing or
domestication necessary, except where the failure to be so duly qualified,
licensed or domesticated and in good standing would not have a material
adverse effect.
6.2 Authorization. NARC has all requisite authority and power (corporate
and other), governmental licenses, authorizations, consents and approvals to
enter into this Agreement and each of the Transaction Documents to which NARC
is a party, to consummate the transactions contemplated by this Agreement and
each of the Transaction Documents to which NARC is a party and to perform its
obligations under this Agreement and each of the Transaction Documents to
which NARC is a party. The execution, delivery and performance by NARC of
this Agreement and each of the Transaction Documents to which NARC is a party
have been duly authorized by all necessary corporate action and do not require
from NARC's Board of Directors any consent or approval that has not been
validly and lawfully obtained.
6.3 Binding Obligations. Assuming this Agreement and the Transaction
Documents have been duly and validly authorized, executed and delivered by the
parties hereto and thereto other than NARC, this Agreement and each of the
Transaction Documents to which NARC is a party are duly authorized, executed
and delivered by NARC and constitute the legal, valid and binding obligations
of NARC, enforceable against NARC in accordance with their respective terms,
except as such enforcement is limited by general equitable principles, or by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors rights generally.
6.4 No Violation. Neither the execution nor the delivery by NARC or any
Transaction Document to which NARC is a party, nor the consummation or
performance by NARC of the transactions contemplated hereby or thereby will,
directly or indirectly, contravene, conflict with, or result in a violation of
any provision of the organizational documents of NARC or ; b) any agreement or
instrument to which NARC is a party or by which the properties or assets of
NARC are bound-
6.5 Capitalization and Related Matters.
6.5.1 Capitalization. The authorized capital stock of NARC consists of
220,000,000 shares: 200,000,000 shares of which are Common Stock, par value
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$0.001, of which 82,640,000 shares are issued and outstanding immediately
prior to the Closing and 20,000,000 of which are Preferred Stock, par value
$0.001, of which none are outstanding. All issued and outstanding shares of
NARC's Common Stock immediately prior to the Closing - are duly authorized,
validly issued, fully paid and nonassessable, and have not been issued in
violation of any preemptive or similar rights.
6.5.2 Duly Authorized. The issuance of NARC Shares has been duly authorized
and, upon delivery to the Owner of certificates therefor in accordance with
the terms of this Agreement, NARC Shares will have been validly issued and
fully paid, and will be nonassessable, have the rights, preferences and
privileges specified, will be free of preemptive rights and will be free and
clear of all Liens and restrictions, other than liens created by the
Shareholder and restrictions on transfer imposed by this Agreement and the
Securities Act.
6.6 Certain Proceedings. There is no pending legal proceeding that has been
commenced against NARC and that challenges, or may have the effect of
preventing, delaying, making illegal, or otherwise interfering with, any of
the transactions contemplated by this Agreement. To the knowledge of NARC, no
such Proceeding has been threatened.
SECTION VII
COVENANTS AND AGREEMENTS OF THE PARTIES
7.1 Conduct of Business. Subject to the provisions hereof, from the date
hereof through the Closing, each party hereto shall (i) conduct its business
in the ordinary course and in such a manner so that the representations and
warranties contained herein shall continue to be true and correct in all
material respects as of the Closing as if made at and as of the Closing and
(ii) not enter into any material transactions or incur any material liability
(except in the ordinary course of its business) not required or specifically
contemplated hereby, without first obtaining the written consent of the
Company and the holders of a majority of voting stock of the Company, on the
one hand, and NARC and the holders of a majority of NARC Common Stock, on the
other hand. Without the prior written consent of the Company, the
Shareholders, or NARC, except as required or specifically contemplated hereby,
each party shall not undertake or fail to undertake any action if such action
or failure would render any of said warranties and representations untrue in
any material respect as of the Closing.
7.2 Public Disclosure. Except to the extent previously disclosed or to the
extent the parties are required by applicable law or regulation to make
disclosure, prior to Closing, no party shall issue any statement or
communication to the public regarding the transaction contemplated herein
without the consent of the other party, which consent shall not be
unreasonably withheld. To the extent a party hereto believes it is required
by law or regulation to make disclosure regarding the transaction, it shall,
if possible, immediately notify the other party prior to such disclosure and
provide the opportunity for the other party to make reasonable comments to
such disclosure.
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7.3 Employment Agreement. NARC shall have entered into a three-year
employment agreement attached hereto as Exhibit A with Michael James Blackburn
pursuant to which Mr. Blackburn shall serve as the Manager of the Company and
shall receive a salary of $80,000 per year.
7.4 Bankruptcy. In the event NARC voluntary or involuntary files for
bankruptcy protection within the first eight months after the consummation of
the transactions contemplated by this Agreement or the Transaction Agreements,
NARC and the Principal Shareholder of NARC will take any and all actions to
petition the Court to return the Assets of the Company transferred to NARC
under this Agreement to the Company.
SECTION VIII
INDEMNIFICATION; REMEDIES
8.1 Survival. All representations, warranties, covenants, and obligations
in this Agreement shall expire eighteen (18) months following the date this
Agreement is executed (the "Survival Period"). The right to indemnification,
payment of damages or other remedy based on such representations, warranties,
covenants, and obligations will not be affected by any investigation conducted
with respect to, or any knowledge acquired (or capable of being acquired) at
any time, whether before or after the execution and delivery of this
Agreement, with respect to the accuracy or inaccuracy of or compliance with,
any such representation, warranty, covenant, or obligation. The waiver of any
condition based on the accuracy of any representation or warranty, or on the
performance of or compliance with any covenant or obligation, will not affect
the right to indemnification, payment of damages, or other remedy based on
such representations, warranties, covenants, and obligations.
8.2 Indemnifications. (i) From and after the execution of this Agreement
until the expiration of the Survival Period, NARC shall indemnify and hold
harmless the Company and the Owner from and against any damages arising,
directly or indirectly, from or in connection with:
(a) any breach of any representation or warranty made by NARC in this
Agreement or any Transaction Document or in any certificate delivered by NARC
pursuant to this Agreement;
(b) any breach by NARC of any covenant or obligation of NARC in this
Agreement or any Transaction Document required to be performed by NARC on or
prior to the Closing Date or after the Closing Date; or
(c) any and all losses, claims, damages, or liabilities against NARC,
occurring on or prior to the Closing Date.
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Notwithstanding anything to the contrary contained herein, NARC's total
indemnification obligations under this Section - shall be limited to and shall
not under any circumstances exceed US $250,000.
(ii) From and after the execution of this Agreement until the expiration of
the Survival Period, the Company shall indemnify and hold i) (ii) From and
after the execution of this Agreement until the expiration of the Survival
Period, the Company and the Owner shall jointly and severally indemnify and
harmless NARC , from and against any damages arising, directly or indirectly,
from or in connection with:
(a) any breach of any representation or warranty made by the Company and the
Owner in this Agreement or any Transaction Document or in any certificate
delivered by the Company or Owner pursuant to this Agreement;
(b) any breach by the Company or Owner of any covenant or obligation of the
Company or the Owner in this Agreement or any Transaction Document required to
be performed by the Company and the Owner on or prior to the Closing Date or
after the Closing Date; or
((c) any and all losses, claims, damages, or liabilities against the Company
and , occurring on or prior to the Closing Date.
Notwithstanding anything to the contrary contained herein, the Company and the
Owner's total indemnification obligations under this Section shall be limited
to and shall not under any circumstances exceed US $25,000.
SECTION IX
GENERAL PROVISIONS
9.1 Expenses. Except as otherwise expressly provided in this Agreement,
each party to this Agreement will bear its respective expenses incurred in
connection with the preparation, execution, and performance of this Agreement
and the transactions contemplated by this Agreement, including all fees and
expenses of agents, representatives, counsel, and accountants. In the event
of termination of this Agreement, the obligation of each party to pay its own
expenses will be subject to any rights of such party arising from a breach of
this Agreement by another party.
9.2 Notices. All notices, demands, consents, requests, instructions and
other communications to be given or delivered or permitted under or by reason
of the provisions of this Agreement or in connection with the transactions
contemplated hereby shall be in writing and shall be deemed to be delivered
and received by the intended recipient as follows: (i) if personally
delivered, on the business day of such delivery (as evidenced by the receipt
of the personal delivery service), (ii) if mailed certified or registered
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mail return receipt requested, two (2) business days after being mailed, (iii)
if delivered by overnight courier (with all charges having been prepaid), on
the business day of such delivery (as evidenced by the receipt of the
overnight courier service of recognized standing), or (iv) if delivered by
facsimile transmission, on the business day of such delivery if sent by 6:00
p.m. in the time zone of the recipient, or if sent after that time, on the
next succeeding business day (as evidenced by the printed confirmation of
delivery generated by the sending party's telecopier machine). If any notice,
demand, consent, request, instruction or other communication cannot be
delivered because of a changed address of which no notice was given (in
accordance with this Section 12.4), or the refusal to accept same, the notice,
demand, consent, request, instruction or other communication shall be deemed
received on the second business day the notice is sent (as evidenced by a
sworn affidavit of the sender). All such notices, demands, consents,
requests, instructions and other communications will be sent to the following
addresses or facsimile numbers as applicable.
If to NARC:
William G. Forhan
National Asset Recovery Corp.
9000 Burma Road, Suite 103
Palm Beach Gardens, FL 33403
Telephone: 561-932-1422
with a copy, which shall not constitute notice, to:
The Sourlis Law Firm
214 Broad Street
Red Bank, New Jersey 07701
Attention: Virginia K. Sourlis, Esq.
Tel No.: 732-530-9007
Fax No.: 732-530-9008
If to the Owner:
Michael James Blackburn
138 Palm Coast Parkway;
NE 175
Palm Coast, FL. 32137
with a copy, which shall not constitute notice, to:
Donald Appignani, P.A.
Attorney At Law
West Point Plaza
389 Palm Coast Pkwy., SW
Suite 4
Palm Coast, Florida 32137
Telephone: (386) 206-9170
Facsimile: (888) 861-2726
E-mail: appignani@aol.com
Web Site: www.donaldappignani.com
9.3 Arbitration. Any dispute or controversy under this Agreement shall be
settled exclusively by arbitration in the City of Palm Beach Gardens of
Florida in accordance with the rules of the American Arbitration Association
then in effect. Judgment may be entered on the arbitration award in any court
having jurisdiction.
9.4 Further Assurances. The parties agree (a) to furnish upon request to
each other such further information, (b) to execute and deliver to each other
such other documents, and (c) to do such other acts and things, all as the
other party may reasonably request for the purpose of carrying out the intent
of this Agreement and the documents referred to in this Agreement.
9.5 Waiver. The rights and remedies of the parties to this Agreement are
cumulative and not alternative. Neither the failure nor any delay by any
party in exercising any right, power, or privilege under this Agreement or the
documents referred to in this Agreement will operate as a waiver of such
right, power, or privilege, and no single or partial exercise of any such
right, power, or privilege will preclude any other or further exercise of such
right, power, or privilege or the exercise of any other right, power, or
privilege.
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9.6 Entire Agreement and Modification. This Agreement supersedes all prior
agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a
complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This Agreement may not be amended
except by a written agreement executed by the party against whom the
enforcement of such amendment is sought.
9.7 Assignments, Successors, and No Third-Party Rights. No party may assign
any of its rights under this Agreement without the prior consent of the other
parties. Subject to the preceding sentence, this Agreement will apply to, be
binding in all respects upon, and inure to the benefit of and be enforceable
by the respective successors and permitted assigns of the parties. Nothing
expressed or referred to in this Agreement will be construed to give any
Person other than the parties to this Agreement any legal or equitable right,
remedy, or claim under or with respect to this Agreement or any provision of
this Agreement. This Agreement and all of its provisions and conditions are
for the sole and exclusive benefit of the parties to this Agreement and their
successors and assigns.
9.8 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
9.9 Section Headings, Construction. The headings of Sections in this
Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or "Sections"
refer to the corresponding Section or Sections of this Agreement. All words
used in this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word
"including" does not limit the preceding words or terms.
9.10 Governing Law. This Agreement will be governed by the laws of the State
of Florida without regard to conflicts of laws principles.
9.11 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement. In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a ".pdf" format data file,
such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or ".pdf" signature page were an original
thereof.
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[COUNTERPART SIGNATURE PAGE]
IN WITNESS WHEREOF, the parties have executed and delivered this Share
Exchange Agreement as of the date first written above.
NARC:
National Asset Recovery Corp.
Signed: /s/ William G. Forhan
Name: William G. Forhan
Title: Chief Executive Officer
Company:
Advanced Recovery Florida
Signed: /s/ Michael James Blackburn
Name: Michael James Blackburn
Title: Owner
Owner:
Signed: /s/ Michael James Blackburn
Name: Michael James Blackburn, individually
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Schedule 1.1
Purchased Assets of the Company by NARC
1. 2000 Ford F-450
2. 2005 TETE Flatbed
3. 1998 Dyna Flatbed Trailer
4. 1994 Ford L8000 Semi Tractor
5. 2009 HME Trailer/motor cycle
6. 1996 SRCR 6 Car Auto Transport Trailer
7. 1996 Chevy HT 3500 Lift Truck
8. 1994 TAKE 53 FT Wedge Trailer
9. 1999 Chevy HD 3500 Wheel Lift Truck
10. 1999 GMC HD 3500 Wheel Lift Truck
11. 2000 International DT 466 Flatbed
12. 1999 International DT 466 Box Truck
13. 2000 ELES 12000 LB Flatbed Trailer
14. 2005 Chevy C 6500 Box Truck
15. 1999 Wally MO 7 Car Hauler
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Schedule 1.2
Liabilities of the Company Assumed by NARC
1. Balance on 2004 Ford - $20,000
2. Balance on copy machine - $10,059
3. Car - $13,500
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Exhibit A
Michael James Blackburn's Employment Agreement
EMPLOYMENT AGREEMENT
THIS AGREEMENT (the "Agreement") effective the 11th day of October 2010,
entered into by and between Michael James Blackburn (Employee") and National
Asset Recovery Corp. a Nevada Corporation doing business as National Asset
Recovery Corp ("the Company"), with its principal place of business in Palm
Beach Gardens, Florida.
The Company desires to employ Employee as its Chief Operating Manager of
Advanced Recovery Florida (COM) and Employee desires to be so employed and;
NOW, THEREFORE, the parties desire to memorialize herein the terms and
conditions of Employee's employment. In consideration of the mutual covenants
and promises contained herein and other good and valuable consideration, the
parties hereby acknowledge the receipt and sufficiency of which hereto, the
parties agree as follows:
1. Position & Duties
Employee shall serve as COM upon the terms set forth in this Agreement.
Employee shall have the responsibilities inherent in this position and shall
report to the COO and the Board of Directors of the Company and Employee shall
perform any other duties reasonably required by Company's COO and Board of
Directors. The primary duties are: implement corporate business plan, operate
the daily business geared for profits, create manuals for operations, train
employees, target mergers and acquisitions, and increase corporate market
valuation.
2. Term of Employment.
Subject to the provisions of this Agreement, the term of Employee's employment
under this Agreement ("Period of Employment") shall commence on October 11,
2010 until October 11, 2013 (the "Initial Term"). Unless either party elects
to terminate this Agreement at the end of the initial or any renewal term by
giving the other party written notice of such election at least ninety (90)
days before the expiration of the then current term, this Agreement shall be
deemed to have been renewed for an additional term of one (1) year commencing
on the day after the expiration of the then current term. Either party may
elect not to renew this Agreement with or without cause, in which case this
Section 2 shall govern Employee's termination, and not Section 5. Upon
expiration of this Agreement after notice of non-renewal, Company shall
provide Employee all compensation and benefits to which Employee is entitled
through the date of termination and thereafter Company's obligation hereunder
shall cease.
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3. Compensation and Benefits.
Salary. The Company shall pay Employee an annual base salary of eighty
thousand dollars ($80,000) during the term of Employee's employment, payable
in accordance with the Company's semi-monthly payroll disbursement cycle
("Base Compensation"). Employee's base compensation shall be reviewed each
year during the term of Employee's employment, provided that the Company's
performance criteria are achieved as set forth by the Company each year.
3.1 Vacation and Sick Leave. Employee will be entitled to four (4) weeks
of vacation, and sick leave equal to six (6) days per year, and 6 personal
days. Vacation time, personal days and sick leave shall not be accumulated
after the end of any year. Employee's use of vacation time shall be subject to
the prior approval of the COO of the Company. Sick leave shall accumulate at
the rate of one half day per month.
3.2 Expenses. With the prior approval of the COO, the Company shall
reimburse Employee for all expenses incurred in connection with his duties on
behalf of the Company, provided that Employee shall keep, and present to the
Company, records and receipts relating to reimbursable expenses incurred by
Employee. Such records and receipts shall be maintained and presented in a
format, and with such regularity, as the Company reasonably may require in
order substantiating the Company's right to claim income tax deductions for
such expenses.
3.3 Benefits. Employee will be entitled to participate in the employee
benefit plans or programs of the Company, including medical and life insurance
and ISOP, to the fullest extent possible, subject to the rules and regulations
applicable hereto and to standard eligibility and vesting requirements of any
coverage and shall be furnished with other services and perquisites
appropriate to Employee's position. Without limiting the generality of the
foregoing, Employee shall be entitled to Comprehensive medical insurance for
Employee and family.
4. Termination
4.1 Due to Disability
(a) If Employee becomes unable to perform the duties specified
hereunder due to partial or total disability or incapacity resulting from a
mental or physical illness, injury or any other cause, Company will the
payment of Employee's base salary at its then current rate for a period of (4)
weeks following the date Employee is first unable to perform such duties due
to such disability or incapacity. Thereafter, Company shall have no obligation
for base salary, bonus or other compensation payments to Employee during the
continuance of such disability or incapacity. Company will continue to provide
benefits to Employee so long as Employee remains employed;
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(b) If Employee is unable to perform the duties specified hereunder due to
partial or total disability or incapacity resulting from a mental or physical
illness, injury or any other cause for a period of TEN (10) consecutive weeks
or for a cumulative period of SEVENTY (70) business days during any FIVE (5)
month period ("Disability"), then, to the extent permitted by law, Company
shall have the right to terminate this Agreement thereafter, in which event
Company shall have no further obligations or liabilities hereunder after the
date of such termination except Employee will be deemed disabled and eligible
for the payments outlined in paragraph 5.1(a). EMPLOYEE REPRESENTS THAT TO THE
BEST OF EMPLOYEE'S KNOWLEDGE EMPLOYEE HAS NO MEDICAL CONDITION THAT COULD
CAUSE PARTIAL OR TOTAL DISABILITY THAT WOULD RENDER EMPLOYEE UNABLE TO PERFORM
THE DUTIES SPECIFIED IN THIS AGREEMENT OTHERWISE THE BENEFITS IN PARAGRAPH
5.1(a) SHALL BE NULL AND VOID.
4.2 Due to Death. If Employee dies during the period of employment,
Employee's employment with Company shall terminate as of the end of the
calendar month in which the death occurs. Company shall have no obligation to
Employee or Employee's estate for Base Compensation or other form of
compensation or benefit other than amounts accrued through the date of
Employee's death, except as otherwise required by law or by benefit plans
provided at Company expense.
In the event of the termination of Employee's employment due to Employee's
death or Disability, Employee or Employee's legal representatives, as the case
may be, shall be entitled to:
(a) In the case of death, unpaid Base Compensation earned or accrued through
Employee's date of death and continued Base Compensation at a rate in effect
at the time of death, through the end of one (1) calendar year after which
Employee's death occurs or the end of the employment term which ever is the
lesser amount;
(b) Any performance or special incentive bonus earned but not yet paid;
(c) A pro rata performance bonus for the year in which employment terminates
due to death or Disability based on the performance of Company for the year
during which such termination occurs or, if performance results are not
available, based on the performance bonus paid to Employee for the prior year;
and
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(d) Any other compensation and benefits to which Employee or Employee's
legal representatives may be entitled under applicable plans, programs and
agreements of Company to the extent permitted under the terms thereof,
including, without limitation, life insurance as provided in Section 4.5
above.
4.3 For Cause. Company may terminate Employee's employment relationship with
Company at any time and with ten (10) days prior notice for Cause.
(a) For purposes of this Agreement, termination of employment of Employee by
the Company for cause means termination for the following reasons: (i)
frequent and unjustifiable absenteeism, other than solely by reason of
Employee's illness or physical or mental disability; (ii) failing to follow
the reasonable instructions of the President; (iii) proven dishonesty
materially injurious to the Company or to its business, operations, assets or
condition (an "Adverse Effect"); or gross violation of Company policy or
procedure after being warned, notified, or Employee's acknowledged, gross or
willful misconduct, or willful neglect to act, which misconduct or neglect is
committed or omitted by Employee in bad faith and had an Adverse Effect; and
(b) Company shall have no obligation to Employee for Base Compensation or
other form of compensation or benefits, except as otherwise required by law,
other than (a) amounts accrued through the date of termination, and (b)
reimbursement of appropriately documented expenses incurred by Employee before
the termination of employment, to the extent that Employee would have been
entitled to such reimbursement but for the termination of employment.
4.4 Termination Obligations.
(a) All tangible Company property shall be returned promptly to Company upon
termination of the Period of Employment;
(b) All benefits to which Employee is otherwise entitled shall cease upon
Employee's termination, unless explicitly continued either under this
Agreement or under any specific written policy or benefit plan of Company;
(c) Upon termination of the Period of Employment, Employee shall be deemed
to have resigned from all offices and directorships then held with Company or
any Affiliate;
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(d) Employee's obligations under this Section 5.5 on Termination
Obligations, Section 6 on Confidentiality and Non-Disclosure, Section 8 on
Inventions, Section 9 on Arbitration, and Section 11 on Non-Competition shall
survive the termination of the Period of Employment and the expiration or
termination of this Agreement; and
(e) Following any termination of the Period of Employment, Employee shall
cooperate fully with Company in all matters relating to completing pending
work on behalf of Company and the orderly transfer of work to other employees
of Company. Employee shall also cooperate in the defense of any action brought
by any third party against Company that relates in any way to Employee's acts
or omissions while employed by Company.
5. Confidentiality and Non-Disclosure.
Employee agrees to abide by the terms of the Confidentiality and Non-
Disclosure Agreement, and proprietary information policies now in effect by
the Company or as may be established in the future.
6. Company Property.
All products, records, designs, patents, plans, data, manuals, brochures,
memoranda, devices, lists and other property delivered to Employee by or on
behalf of the Company, all confidential information including, but not limited
to, lists of potential customers, prices, and similar confidential materials
or information respecting the business affairs of the Company, such as
hardware manufacturers, software developers, networks, strategic partners,
business practices regarding technology and schedules, legal actions and
personnel information, and all records compiled by Employee which pertain to
the business of the Company, and all rights, title and interest now existing
or that may exist in the future in and to any intellectual property rights
created by Employee for the Company, in performing Employee's duties during
the term of this Agreement shall be and remain the property of the Company.
Employee agrees to execute and deliver at a future date any further documents
that the Company, determines may be necessary or desirable to perfect the
Company's ownership in any intellectual or other property rights.
7. Arbitration.
7.1 Arbitral Claims. To the fullest extent permitted by law, all disputes
between Employee (and Employee's attorneys, successors and assigns) and
Company (and its Affiliates, shareholders, directors, officers, employees,
agents, successors, attorneys and assigns) of any kind whatsoever, including,
without limitation, all disputes arising under this Agreement ("Arbitral
Claims"), shall be resolved by arbitration. All persons and entities specified
in the preceding sentence (other than Company and Employee) shall be
considered third-party beneficiaries of the rights and obligations created
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by this Section on Arbitration. Arbitral Claims shall include, but are not
limited to, contract (express or implied) and tort claims of all kinds, as
well as all claims based on any federal, state or local law, statute or
regulation, excepting only claims under applicable workers' compensation law
and unemployment insurance claims. By way of example and not in limitation of
the foregoing, Arbitral Claims shall include any claims arising under Title
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act,
the Americans with Disabilities Act and the Nevada Fair Employment and Housing
Act;
7.2 Procedure. Arbitration of Arbitral Claims shall be in accordance with
the National Rules for the Resolution of Employment Disputes of the American
Arbitration Association, as amended ("AAA Employment Rules"), as augmented in
this Agreement. Arbitration shall be initiated as provided by the AAA
Employment Rules, although the written notice to the other party initiating
arbitration shall also include a statement of the claim(s) asserted and the
facts upon which the claim(s) are based. Arbitration shall be final and
binding upon the parties and shall be the exclusive remedy for all Arbitral
Claims.
7.3 Either party may bring an action in court to compel arbitration under
this Agreement and to enforce an arbitration award. Otherwise, neither party
shall initiate or prosecute any lawsuit or administrative action in any way
related to any Arbitral Claim. Notwithstanding the foregoing, either party
may, at its option, seek injunctive relief. All arbitration hearings under
this Agreement shall be conducted in Las Vegas, Nevada. THE PARTIES HEREBY
WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE
CLAIMS, INCLUDING, WITHOUT LIMITATION, ANY RIGHT TO TRIAL BY JURY AS TO THE
MAKING, EXISTENCE, VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE;
7.4 Arbitrator Selection and Authority. All disputes involving Arbitral
Claims shall be decided by a single arbitrator. The arbitrator shall be
selected by mutual agreement of the parties within thirty (30) days of the
effective date of the notice initiating the arbitration. If the parties cannot
agree on an arbitrator, then the complaining party shall notify the AAA and
request selection of an arbitrator in accordance with the AAA Employment
Rules. The arbitrator shall have authority to award equitable relief, damages,
costs and fees to the same extent that, but not greater than, a court would
have. The fees of the arbitrator shall be split between both parties equally,
unless this would render this Section of Arbitration unenforceable, in which
case the arbitrator shall apportion said fees so as to preserve
enforceability. The arbitrator shall have exclusive authority to resolve all
Arbitral Claims, including, but not limited to, whether any particular claim
is arbitral and whether all or any part of this Agreement is void or
unenforceable;
7.5 Continuing Obligations. The rights and obligations of Employee and
Company set forth in this Section on Arbitration shall survive the termination
of Employee's employment and the expiration of this Agreement.
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8. Prior Agreements; Conflicts of Interest. Employee represents to Company:
(a) that there are no restrictions, agreements or understandings, oral or
written, to which Employee is a party or by which Employee is bound that
prevent or make unlawful Employee's execution or performance of this
Agreement; (b) none of the information supplied by Employee to Company or any
representative of Company or placement agency in connection with Employee's
employment by Company misstated a material fact or omitted information
necessary to make the information supplied not materially misleading; and (c)
Employee does not have any business or other relationship that creates a
conflict between the interests of Employee and the Company.
9. Non-Competition. During the term of this Agreement Employee shall not:
9.1 Start employment with, offer consulting services to, or otherwise become
involved in, advise or participate on behalf of any other company, entity or
individual, in the field of the Company; and
9.2 Individually or through any agent, for Employee's benefit or on behalf
of any other person or entity (i) solicit employees of the Company, to entice
them to leave the Company; or (ii) solicit or induce and third party now or at
any time during the term of this Agreement who is providing services to the
Company, through license, contract, partnership, or otherwise to terminate or
reduce their relationships with the Company.
10. Miscellaneous Provisions.
10.1 Authority. Each party hereto represents and warrants that it has full
power and authority to enter into this Agreement and to perform this Agreement
in accordance with its terms.
10.2 Governing Law. This Agreement shall be construed, interpreted and
enforced in accordance with the laws of the State of Florida.
10.3 Successors and Assigns. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective successors and
assigns.
10.4 Captions. The captions of the sections of this Agreement are for
convenience of reference only and in no way define, limit or affect the scope
or substance of any section of this Agreement.
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10.5 Severability. In the event that any provision of this Agreement shall
be invalid, illegal or otherwise unenforceable, the validity, legality and
enforceability of the remaining provisions shall in no way be affected or
impaired thereby.
10.6 Amendment. This Agreement may be amended only in writing executed by
the parties hereto.
10.7 Attorney's Fees. In the event of a dispute the prevailing party shall
be entitled to be reimbursed for its legal fees by the other party.
10.8 Finality of Agreement. The document, when executed by the parties,
supersedes all other agreements of the parties with respect to the matters
discussed.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the day and year first set forth above.
"EMPLOYEE"
_________________________________
Michael James Blackburn
National Asset Recovery Corp.
By: _____________________________
William Forhan CEO
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