AGREEMENT
FOR PURCHASE AND SALE OF ASSETS
THIS
AGREEMENT FOR PURCHASE AND SALE OF ASSETS
,
made
and entered into on June 13, 2006, by and between COMMAND SECURITY CORPORATION,
a New York corporation (hereinafter referred to as “PURCHASER”), STERLING
PROTECTIVE GROUP, INC., a Florida corporation (hereinafter referred to as
“SELLER”), and Howard Chusid, individually and sole stockholder of Seller
(“Stockholder”); and for purposes of Sections 4.1.2 only, Cliff Ingber
(“Ingber”).
WITNESSETH
WHEREAS
,
Seller
is presently engaged in soliciting and providing security guard services
(“Security Guard Business”); and
WHEREAS
,
Seller
and Stockholder desire to sell and Purchaser desires to purchase all of Seller’s
right, title and interest in and to the Security Guard Business.
NOW
,
THEREFORE
,
in
consideration of the foregoing, the mutual promises, conditions and covenants
herein contained, and other good and valuable considerations, the receipt
of
which is hereby acknowledged, it is agreed as follows:
1.1
Subject
to the terms and conditions of this Agreement, Seller does hereby sell, assign
and transfer to Purchaser, Seller’s Guard Business, including: (a) all of
Seller’s right, title and interest in and to all Seller’s guard service accounts
attached hereto, including the Contract rights of Seller to such guard service
accounts (“Contracts”); and (b) all tangible and intangible property of Seller
utilized in the ordinary course of business including, without limitation,
the
name “Sterling Protective Group” and all variations thereof; all uniforms,
client books, records and employment files, office equipment, supplies,
vehicles, radios, and detex or electronic clocks; all general intangibles;
and
all telephone and facsimile numbers as described in Schedules 1(b) attached
hereto; (collectively, “Working Assets”) (assets described in
Sections
1.1(a)
and
1.
1(b)
collectively, “Purchased Assets”). For purposes of Section 4.2 below the
Contract for the Account known as Waterford is defined as the “Waterford
Account”.
1.2
Command
further agrees to assume all obligations arising after the Closing under
the
leases set forth in Schedule 1.2.
2.
All
assets and liabilities of Seller including, but not necessarily limited to,
accounts receivable to the Effective Date (as defined) bank deposits, tax
refunds, prepaid insurances and insurance refunds (if any), shareholder
transactions, as described in Schedule 2 , shall remain the property of Seller
(“Excluded Assets”).
3.1
Payments
for services rendered by Seller prior to the Effective Date shall remain
the
property of Seller (“Pre Effective Date Receivables”) and any payment received
by Purchaser for such Pre Effective Date Receivables shall be delivered promptly
to Seller. Conversely, payments for services rendered on or after the Effective
Date (“Post Effective Date Receivables”) shall be the property of Purchaser and
any payment received by Seller for such Post Effective Date Receivables shall
be
delivered promptly to Purchaser. In the event payment for service is received
by
Seller and the payment does not identify the invoice or date of service for
which the payment is made, said payment shall be delivered promptly to Purchaser
and Purchaser shall use commercially reasonable efforts to identify the services
for which payment is made, and shall notify Seller of the results of its
efforts. Any payment identified as a Pre Effective Date Receivable shall
be
returned to Seller. In the event Purchaser is unable to determine the service
dates or invoices for which payment has been made, payment shall be applied
to
the earliest undisputed and outstanding invoice for said account and shall
be
forwarded to Seller or retained by Purchaser, as the case may be.
3.2
As
set
forth in Schedule 3.2, there is accrued vacation pay that may be due within
12
months from the Seller to employees at the time of Closing. The parties hereby
agree that when the Purchaser pays any or all of the accrued vacation due
Purchaser may offset the next scheduled note payment by said amount. Purchaser
hereby agrees to continue, or improve upon, the Seller’s existing vacation
policy (as set forth on Schedule 3.2) for 18 months following the
Closing.
4.1.1
In
consideration for the sale and transfer of Seller’s Guard Business including
without limitation the Purchased Assets, Purchaser agrees to pay to Seller
as
the full purchase price the amount of SEVEN HUNDRED FIFTY THOUSAND ($750,000)
DOLLARS (“Purchase Price”) payable as follows: (i) Fifty-five (55%) percent, or
$412,500, payable in cash or check at the time of Closing; (ii) Fifteen (15%)
percent or $112,500 payable six months from the Closing Date; (iii) fifteen
(15%) percent or $112,500 payable twelve months from the Closing Date; and
(iv)
the remaining Fifteen (15%) percent or $112,500 payable eighteen (18) months
from the Closing Date. Purchaser’s obligations with respect to payments “ii”,
“iii” and “iv” shall be evidenced by a Promissory Note in the form as set forth
in
Exhibit
4.1
(hereinafter “Note”) executed and delivered by Purchaser at the Closing. Said
Note shall bear interest at the rate of 7.75% per annum and shall be subject
to
adjustments pursuant to the provisions of
Sections
3.2, 4.2
,
9.2 and
10.1 herein.
4.1.2
The
parties hereby acknowledge that the initial portion of the Purchase Price
is not
sufficient for Seller to pay all liabilities due and transfer clear title
to all
Working Assets at the time of Closing. Specifically, there are liens and
claims
by federal and state taxing authorities as set forth in Schedule 4.1.2
(“Seller’s Tax Lien(s)”). Based on this knowledge and to ensure that Purchaser
ultimately obtains clear title to all assets, the parties have agreed that
the
Purchase Price proceeds from this Agreement shall be paid to an escrow account
(“Escrow Account”) maintained by Cliff Ingber. All of the proceeds shall be
disbursed as provided on Schedule 4.1.2. To pay the Seller’s Tax Lien(s) and any
and all interest and penalties assessed therein.
4.2
The
Purchase Price shall be reduced in proportion to the amount by which the
average
permanent monthly revenue from the Seller’s Security Guard Business during the
twelve months following the Closing Date (excluding the Waterford Account)
is
less than the Closing Monthly Revenue (excluding the Waterford Account) (as
defined in Section 6.13 below). In the event the Purchase Price is reduced
by an
amount exceeding any monies owed by Purchaser then Seller shall promptly
pay to
Purchaser all amounts due. Said reduction may, in turn, be offset by Replacement
Business as provided in
Section
4.3
below.
In the event there is to be a reduction in the Purchase Price due to a reduction
in the monthly revenue from Seller’s Security Guard Business, Purchaser may
reduce the upcoming Note payment by notifying Seller thereof and setting
forth
the basis for such reduction at the time the Note payment is due. Purchaser’s
failure to reduce any Note payment shall not be deemed a waiver of its rights
to
setoff or repayment of any portion of the Purchase Price otherwise due
hereunder. Additionally, the same reductions shall be made for the Waterford
Account by comparing the Waterford account Closing Monthly Revenue to the
average monthly revenue from the Waterford account during the eighteen months
following the Closing Date.
4.3
Notwithstanding
anything to the contrary, any reduction due under
Section
4.2
will be
offset by any new or expanded security guard services in Miami Dade County
obtained by Purchaser which commences within three months after Closing
(“Replacement Business”). In addition, any new or expanded security guard
services in Miami Dade County which is proposed on during the first three
months
and commences within the first six months after Closing will also be considered
Replacement Business. Replacement Business shall not exceed 504 hours per
week.
Any Replacement Business must be at terms and conditions acceptable to and
accepted in writing by Purchaser. As part hereof, Purchaser agrees (i)
to provide security services to the guard service Accounts minimally at the
same
level of service that is provided to all of Purchaser’s accounts in Miami-Dade
County subsequent to the Effective Date; (ii) to offer employment to all of
Seller's Security officers assigned to each Account, who meet the standards
of employment of Purchaser, minimally on the terms and conditions currently
provided by Purchaser ; provided, that during the eighteen month period
following the Closing Employees’ wages will not be reduced from rates paid to
said employees by Seller immediately prior to Closing. The offset value
amount of such Replacement Business will be the amount of revenues during
the
twelfth full calendar month following commencement of services by Purchaser
to
each such Replacement Business account multiplied by a factor of “3.5”. Any
adjustment due pursuant to this section shall occur on the thirteenth month
following commencement of services to the Replacement Business. In addition
to
the above, the accounts listed on Schedule 4.3 will be considered Replacement
Business provided that they commence within 6 months after Closing.
5.
The
Closing Date shall be June 13, 2006 at Noon at the offices of Moffa &
Gainor, P.A. or at such other time or place as may be mutually agreed upon
in
writing (“Closing” or “Closing Date”). The effective date shall be June, 5, 2006
at 12:01 a.m. (“Effective Date”).
6.
With
respect to its Security Guard Business, Seller and Stockholder jointly and
severally represent and warrant to Purchaser as follows:
6.1
The
Seller is a corporation duly organized, validly existing, and in good standing
under the laws of the State of Florida and has full corporate power and
authority to carry on the Security Guard Business as now conducted and to
own
and operate said Security Guard Business. The Seller has full corporate power
and authority to execute and deliver this Agreement and the other agreements
contemplated hereby, to perform its obligations hereunder and thereunder
and to
consummate the transactions contemplated hereby and thereby.
6.2
All
of
the issued and outstanding shares of capital stock of Seller is owned by
Stockholder. No other person, firm or entity has any right, option or privilege
(whether preemptive, contractual or otherwise) to purchase any shares of
Seller’s capital stock or any other equity ownership interests in Seller.
6.3
Seller
has the full power and authority necessary to enter into and perform its
obligations under this Agreement and to consummate the transaction contemplated
hereby. The execution and delivery of this Agreement and the other agreements
contemplated herein and the performance of Seller of its obligations hereunder
have been duly authorized by all necessary corporate action and no other
corporate act or proceeding on the part of Seller, its Board of Directors,
the
Stockholder or any third party is necessary to authorized the execution,
delivery or performance by Seller of this Agreement or any other agreement
contemplated hereby or the consummation of the transactions contemplated
herein.
6.4
The
execution, delivery and performance by Seller of this Agreement and the other
agreements contemplated herein do not (i) violate, conflict with, result
in any
breach of, constitute a default under, result in the termination or acceleration
of, create in any part the right to accelerate, terminate, modify or cancel,
or
require any notice under Seller’s certificate of incorporation or bylaws, or any
contract, agreement, indenture, mortgage, loan agreement, lease, sublease,
license, sublicense, franchise, permit, indenture, mortgage, obligation or
instrument to which Seller or Stockholder is a party or by which either of
them
is bound or affected or to which any of the Purchased Assets is bound or
affected, (ii) result in the creation or imposition of any lien, security
interest, charge, restriction or encumbrance upon any of the Purchased Assets,
(iii) other than the Defined Consents (as defined at
Section
6.13
below),
require any authorization, consent, approval, exemption by any other person
or
entity under the provisions of any law, statute, rule, regulation, judgment,
order or decree or any contract, agreement, lease, sublease, license, franchise
permit, indenture, mortgage, obligation or instrument to which Seller is
subject, bound or affected, or (iv) violate or require any consent or notice
under law, statute, regulation, rule, judgment, decree, order, stipulation,
injunction, charge or other restriction of any government, governmental agency
or court to which Seller or the Security Guard Business is subject, bound
or
affected.
6.5
Intentionally
left blank.
6.6
Seller
has conducted its business only in the ordinary course of business consistent
with past practice and has not made any changes in its accounting methods
or
practices, and (ii) there has been no material adverse change in its Business
and no event has occurred which is reasonably anticipated to result in such
a
material adverse change.
6.7
Schedule
6.7 is a correct and complete listing of the trade accounts receivable of
Seller
as of the date set forth on such Schedule. All trade accounts receivable
represent monies due for, and have arisen solely out of,
bona
fide
sales
and deliveries of goods, performance of services and other business transactions
entered into in the ordinary course of business.
6.8
Except
as
set forth in Schedule 4.1.2 (“Seller’s Tax Lien(s)”), the Purchased Assets shall
be conveyed by the Purchaser free and clear of all liens, claims, liabilities,
liens, licenses or other encumbrances. As a condition subsequent to Closing
the
Seller shall satisfy each obligation underlying the Seller’s Tax Lien(s) and
obtain proof of termination thereof in accordance with Schedule
4.1.2.
6.9
Seller
has not made or committed to make any bribe, kickback payments or other illegal
payments.
6.10
No
party
(including Seller) has accelerated, terminated, modified, or canceled any
contract, lease, sublease, license, sublicense or other agreement set forth
on
the
Schedule
1(a)
attached
hereto.
6.11
Schedule
1(b)
contains
a true and complete list of all Working Assets, including without limitation,
equipment, tangible or intangible personal property, rights and assets owned,
leased or used by Seller in connection with the Security Guard Business.
Seller
is the sole owner of each and every Purchased Asset and has the right to
convey
the Purchased Assets, and upon consummation of the transactions which is
the
subject to this Agreement, Purchaser will be vested with good and marketable
title to the Purchased Assets, free and clear of all liens, mortgages, charges,
security interest, pledges, or other encumbrances or adverse claims or interests
of any nature (collectively, “Liens”).
6.12
The
assets listed in
Schedule
1(b)
are in
good condition and repair, and none requires any material repair or replacement
except for maintenance in the ordinary course of Seller’s operations. Seller has
good, valid and marketable title to all of the Purchased Assets and is herewith
transferring the Purchased Assets to Purchaser free and clear of all liens.
6.13
Schedule
1(a)
identifies every agreement, license, lease and contract, written or oral,
to
which Seller is a party and which is related to the Security Guard Business
(the
“Contracts”) and except as disclosed on
Schedule
1(a)
,
all of
such Contracts may be assigned and transferred to Purchaser without the consent,
approval, novation or waiver (collectively, “Defined Consents”) of any party to
such contract (other than Seller) or any other third party or governmental
authority or instrumentality.
Schedule
1(a)
lists as
at the Closing (i) the permanent hours of weekly services provided to each
account (“Final Closing Hours”), (ii) each billing rate charged to each account,
(iii) the permanent monthly revenue for each Account; (iv) the average pay
rate
paid to employees assigned to each account and the monthly revenue for each
said
Account during the last full calendar month period immediately preceding
Closing
(“Closing Monthly Revenue”). Seller is not in default, and no event has occurred
which, with the giving of notice or the passage of time or both would constitute
a default, under any contract made or obligation owed by Seller with respect
to
the Security Guard Business which default would adversely affect, individually
or together with such other defaults, the financial condition, assets or
properties of Seller. Attached hereto are accurate and complete copies of
all of
the written agreements and contracts referred to in
Schedule
1(a)
and a
summary of all oral agreements and contracts so listed.
6.14
Except
as
provided in
Schedule
6.14
,
Seller’s activities and conditions at, or in connection with, the Security Guard
Business do not violate any applicable law, ordinance or regulation of any
federal, state, local or foreign government or agency. Seller has not received
notice of any such violation, alleged violation or liability or any
correspondence from any governmental agency relating thereto.
6.15
Except
as
listed in
Schedule
6.15
,
Seller
is not a party to or obligated in connection with the Security Guard Business
with respect to any (a) outstanding contracts with current or former employees,
agents, consultants, advisers, salesman, sales representatives, distributors,
sales agents or dealers or, (b) collective bargaining agreements or contracts
with any labor union or other representative of employees or any employee
benefits provided for by any such agreement. Attached hereto is a true and
complete copy of each document listed in
Schedule
6.15.
No
strike, union organizational activity, allegation, charge or complaint of
employment discrimination or other similar occurrence has occurred which
is
related to the Security Guard Business during Seller’s past three years, or is
pending or threatened against Seller or otherwise might affect the Security
Guard Business; nor does Seller know any basis for any such allegation, charge
or complaint. Seller has complied with all applicable laws relating to the
employment of labor, including provisions thereof relating to wages, hours,
equal opportunity, collective bargaining and the payment of social security
and
other taxes. Except as set forth in
Schedule
6.15.1
,
there
are no administrative charges or court complaints pending or threatened against
the Seller before the U.S. Equal Employment Opportunity Commission or any
state
or federal court of agency concerning alleged employment discrimination or
any
other matter relating to the employment of labor. There is no unfair labor
practice charge or complaint pending or threatened against Seller before
the
National Labor Relations Board or any similar state or local body.
6.16
Attached
hereto as
Schedule
6.16
is
a
correct and complete list setting forth the names and current salaries or
wage
rates, as the case may be, of the employees of Seller, regardless of the
amount
of annual compensation. Except as set forth in
Schedule
6.16
,
Seller
has made no promise to any employee orally or in writing of any bonus or
increase in compensation or a general increase or change in any Employee
Benefit
Plan, whether or not legally binding.
6.17
Except
as
provided in
Schedule
6.17
there is
no claim, counterclaim, action, suit, proceeding or governmental investigation
pending or threatened against or involving Seller with respect to or affecting
Seller or the Security Guard Business. Seller knows of or has any reasonable
grounds to know of any basis for any such claim, action, suit, proceeding
or
governmental investigation. Seller nor the Security Guard Business is directly
subject to or affected by any order, judgment, decree or ruling of any court
of
governmental agency.
6.18
Except
as
identified in schedule 4.1.2, all taxes due and payable by the Seller shall
have
at or before the Closing been paid in full by Seller and/or Stockholder.
The
liens, claims and underlying obligations set forth in Schedule 6.18 are not
obligations of Seller or any predecessor entity and do not and will not affect
or attach to any of the Purchased Assets.
6.19
Other
than the Defined Consents, no consent, approval or authorization of, or
declaration, filing or registration with, any federal, state or local
governmental or regulator authority, or any other party, is required to be
made
or obtained by Seller in connection with the execution, delivery and performance
of this Agreement and the transactions contemplated hereby. Obtaining all
Defined Consents shall be a condition of Purchaser’s obligation under this
Agreement.
6.20
All
plans, programs and agreements which Seller has maintained, sponsored, adopted,
made contributions to or obligated itself to make contributions to or to
pay any
benefits or grant rights under or with respect to any plan of deferred
compensation, medical plan, life insurance plan, long-term disability plan,
dental plan, or other plan providing for the welfare of any of the Seller’s
employees or former employees or beneficiaries thereof, personnel policy
(including but not limited to, vacation time, holiday pay, bonus program,
moving
expense reimbursement programs, tool allowance or other allowance, and sick
leave), excess benefit plan, bonus or incentive plan (including but not limited
to, stock options, restricted stock, stock bonus, deferred bonus plans),
salary
reduction agreement, change-of-control agreement, employment agreement,
consulting or any other benefit, program or contract, whether or not written
or
pursuant to a collective bargaining agreement, which could give rise to Seller
or Purchaser or result in Seller or Purchaser having any debt, liability,
claim
or obligation of any kind or nature, whether accrued, absolute, contingent,
direct, indirect, known or unknown, perfected or inchoate or otherwise and
whether or not due or to become due, are set forth in
Schedule
6.20
attached
hereto.
6.21
Seller
represents that none of the contracts set forth in
Schedule
1(a)
were
awarded to Seller on the basis of its representation to be or status as a
Small,
Disadvantaged or Minority Business Enterprise as such term is defined by
the
United States Small Business Administration or any federal, state or local
governmental agency or authority.
6.22
Except
as
set forth in
Schedule
6.22
,
(i)
neither Seller nor Stockholder has any direct or indirect interest in any
competitor, supplier or customer of the Security Guard Business; and (ii)
Seller
is not a successor of or to SHPA, Inc., a Florida corporation.
6.23
All
financial information provided by Seller or Stockholder, to the best of their
knowledge, to Purchaser is correct and complete in all material
respects.
6.24
During
the six (6) month period preceding the execution of this Agreement there
has
been no material adverse change in the status or operations of Seller’s Security
Guard Business transferred herein.
7.
With
respect to its Security Guard Business, Purchaser represents and warrants
to
Seller as follows:
7.1
Good
Standing and Authority. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York and
has
the corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated in this Agreement. This Agreement and the
consummation of the transactions contemplated in this Agreement have been
duly
authorized and approved by all necessary and proper corporate action on
Purchaser’s part. This Agreement and all related documents required to
consummate the transactions contemplated in this Agreement to which Purchaser
is
a party, when executed and delivered, will constitute legal, valid and binding
obligations of Purchaser enforceable against Purchaser in accordance with
their
respective terms.
7.2
Non-Violative
Agreement. Neither the execution and delivery of this Agreement and any related
documents required to consummate the transactions contemplated in this Agreement
to which Purchaser is a party nor the consummation of the transactions
contemplated in this Agreement will conflict with, result in the breach or
violation of or constitute a default under the terms, conditions or provisions
of Purchaser’s Articles of Incorporation, Bylaws or any other agreement or
instrument to which Purchaser is a party or to which they may be
subject.
7.3
Brokerage
or Finder’s Fee. Except as set forth in paragraph 17 below, no broker, finder,
agent or similar intermediary has acted for or on behalf of Purchaser in
connection with this Agreement or the transactions contemplated hereby and
no
broker, finder, agent or similar intermediary is entitled to any broker’s,
finder’s or similar fee or other commission in connection therewith based on any
agreement, arrangement or understanding with Purchaser.
8.1
Seller shall, at the Closing, execute and deliver to Purchaser a Bill of
Sale
and such other documents as may be necessary to convey, transfer and assign
to
Purchaser good and marketable title to the accounts and the Purchased Assets
which are the subject matter of this Agreement. Subsequent to the Closing,
Seller and the Stockholder shall, from time to time, execute and deliver,
at the
request of Purchaser, all such further instruments of conveyance, transfer
and
assignment of such accounts and business as may be reasonably requested by
Purchaser.
8.2
Seller
shall furnish to Purchaser a certified copy of a Resolution of Seller’s Board of
Directors and Stockholder authorizing and approving Seller’s execution of this
Agreement and the sale described herein.
9.1
Purchaser
shall not assume or be responsible for any liability or obligation of Seller,
or
any claim of such liability or obligation, or any costs or expenses (legal
or
otherwise), including but not limited to those relating to or arising from,
(a)
any claim by any customer or supplier of Seller or any other person based
on
alleged tort, breach of contract or failure in performance by Seller or other
cause of action arising as a result of activities of Seller prior to, at
or
after the Closing Date; (b) any trade payables due from Seller or vacation,
sick
time, overtime or other benefits accrued by Seller’s employees at or prior to
the Effective Date; (c) Seller is not mailing bulk sales or similar notices;
and
(d) Seller’s Tax Liens.
9.2
All
obligations and liabilities of the Seller shall remain the obligation and
responsibility of Seller, and Purchaser shall not become responsible for
or
incur any tort or other liability or obligation of any nature of Seller,
whether
matured or unmatured, fixed or contingent, known or unknown, arising out
of
occurrences prior to, at or after the Effective Date. Notwithstanding the
above,
in the event Purchaser incurs, intends to pay, or pays any liability of Seller,
Purchaser shall give Seller at least ten days prior written notice. In the
event
that Purchaser actually pays any obligation, then the amount due under the
upcoming Note payment shall be reduced by a like amount. If the amount incurred
or paid by Purchaser exceeds the amount of the upcoming Note payment then
the
Seller shall, upon receipt of notice, promptly reimburse Purchaser for the
difference.
10.1
Without
limitation of any other provision of this Agreement or any other rights and
remedies available to Purchaser at law or in equity, Seller and Stockholder,
jointly and severally, covenant and agree to protect, indemnify, defend and
hold
harmless Purchaser and its business and properties and Purchaser’s stockholders,
officers, directors, employees, representatives, successors and assigns from
all
liabilities, losses, claims, demands, damages, interest, penalties, fines,
costs
and expenses, whether or not arising out of third party claims (including
without limitation, diminution in value and consequential damages, reasonable
attorneys’ and accountants’ fees and expenses) actually or allegedly arising out
of, in connection with or relating to (i) any act or omission, or any condition
occurring or existing, or any contract for guard services performed, on or
prior
to the Closing Date, in each case by or with respect to Seller or Seller’s
Security Guard Business, operations or properties of Seller; (ii) any breach
of
any covenant, representation or warranty of Seller, or (iii) any debt,
obligation or liability (including contingent liabilities) incurred by Seller
with respect to the Security Guard Business.
10.2
Without
limitation of any other provision of this Agreement or any other rights and
remedies available to Seller or the Stockholder at law or in equity, Purchaser
covenants and agrees to protect, indemnify, defend and hold harmless Seller
and
the Stockholder from all liabilities, losses, claims, demands, damages,
interest, penalties, fines, costs, and expenses, whether or not arising out
of
third party claims (including without limitation, diminution in value and
consequential damages, reasonable attorneys’ and accountants’ fees and expenses)
actually
or
allegedly arising out of, in connection with or relating to (i) any act or
omission or any condition occurring or existing of Purchaser subsequent to
the
Closing Date, with respect to Seller’s Security Guard Business, transferred
herein, or (ii) any breach of any covenant, representation or warranty of
Purchaser, or (iii) any debts, obligations or liabilities (including contingent
liabilities) incurred by Purchaser with respect to Purchaser’s obligations
hereunder.
11.1
As
additional consideration for entering into this Agreement and the transaction
contemplated herein, the Seller and the Stockholder, agree, that for a period
of
five (5) years subsequent to the later of (i) the Closing Date; or (ii)
Stockholder’s termination of employment with Purchaser, if applicable, they will
not, directly or indirectly, do any of the following:
(a)
Within
the City of Miami, Florida and a two hundred (200) mile radius of the City
of
Miami, Florida, own, manage, control or participate in the ownership, management
or control of any corporation, partnership, proprietorship, firm, association,
or other business entity, which engages, in any manner in the Security Guard
Business, other than the business of Purchaser;
(b)
Direct,
interfere or attempt to divert or interfere in any business and/or contractual
relationship between Purchaser and any third party;
(c)
Induce
any person who is an employee of Seller or Purchaser to terminate his or
her
employment; and
(d)
Disclose,
divulge, discuss or otherwise use, in any manner, the customer account lists
of
Seller or Purchaser, except for the direct benefit of Purchaser.
11.2
Covenantors
expressly agree and understand that the remedy at law for any breach by them
of
this covenant will be inadequate and the Purchaser shall be entitled to
immediate injunctive relief. Covenantors further agree that the in the event
Purchaser shall bring any action to enforce the provisions of this Covenant
Not
to Compete, the prevailing party shall receive from the other party the costs
and expenses, including reasonable attorney’s fees, incurred by the prevailing
party in such action. Nothing contained in this Section, however, shall be
deemed to constitute Purchaser’s exclusive remedy at law or equity for any
breach of this Covenant Not to Compete by Covenantors. Any Covenant part
contained hereinabove, which may be specifically enforceable shall,
nevertheless, if breached, give rise to a cause of action for all other remedies
available at law or in equity.
11.3
Notwithstanding
anything to the contrary herein, it is expressly agreed that Stockholder
may
operate an investigation business for the purpose of providing investigative
services only.
12.
The
laws
of the State of Florida shall apply to the interpretation and enforcement
of any
term of this Agreement. If any disputes shall arise concerning the terms
and
conditions of this Agreement, or performance thereunder, the parties shall
submit said dispute to the jurisdiction of the courts of the State of
Florida.
13.
This
Agreement shall be binding upon, apply and inure to the benefit of the heirs,
personal representatives, successors and assigns of the respective parties
hereto.
14.
All
necessary notices, demands and requests required or permitted to be given
hereunder shall be deemed duly given when mailed by registered or certified
mail, return receipt requested, with first class postage pre-paid and properly
addressed as follows:
|
|
If
to Purchaser:
|
Command
Security Corporation
P.O.
Box 340
1133
Route 55, Suite D
Lagrangeville,
NY 12540
Attn:
Barry Regenstein
|
|
|
With
a copy to:
|
The
Ingber Law Firm, PLLC
6
Stallion Trail
Greenwich,
CT 06831
Attn:
Clifford J. Ingber, Esq.
|
|
If
to Seller or
|
Sterling
Protective Group, Inc.
|
|
Stockholder:
|
3001
W. Hallandale Beach Blvd.
Suite
302
Pembroke
Park, FL 33009
Attn:
Howard Chusid
|
|
With
a copy to:
|
Moffa
and Gainor, PA
One
Financial Plaza, Suite 2202
Ft.
Lauderdale, FL 33394
Attn:
Joseph C. Moffa, Esq
|
|
If
to Ingber:
|
Clifford
J. Ingber, Esq.
The
Ingber Law Firm, PLLC
6
Stallion Trail
Greenwich,
CT 06831
|
15.
This
Agreement, and the Schedules attached hereto and the other documents referred
to
or provided for herein represent the entire contract among the parties with
respect to the subject matter hereof, and shall not be modified or affected
by
any offer, proposal, statement or representation and by or for any party
in
connection with the negotiation of the terms hereof, unless evidenced in
writing
executed by the duly authorized representatives of the parties
hereto.
16.
Nothing
herein expressed or implied is intended or shall be construed to confer upon
or
give to any person, firm or corporation, other than the parties hereto and
their
respective permitted successors and assigns, any rights or remedies under
or by
reason of this Agreement, such third parties specifically including, without
limitation, any employees of Seller.
17.
The
only
broker utilized by either Seller or Purchaser is David Heller & Company,
LLC, and Seller and Stockholder shall be solely responsible for any payment
due
to said broker.
18.
No
amendment, waiver or modification to this Agreement shall be effective unless
it
is in writing and has been signed by the parties hereto.
19.
The
failure or delay of any party at any time or times to require strict performance
of any provision of this Agreement shall in no manner affect such party’s right
to enforce that provision. No single or partial waiver by any party of any
condition of this Agreement, or the breach of any term, agreement or covenant
or
the inaccuracy of any representation or warranty of this Agreement, whether
by
conduct or otherwise, in any one or more instances shall be construed or
deemed
to be a further or continuing waiver of any such condition, breach or inaccuracy
or a waiver of any other condition, breach or inaccuracy.
20.
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but all of which counterparts shall together
constitute one and the same instrument. Photostatic or facsimile reproductions
of this Agreement may be made and relied upon to the same extent as
originals.
21.
Each
party shall bear its costs incurred in connection with this transaction.
22.
It
is
hereby acknowledged between the parties that during a transition period some
operating income and expenses paid or received by one party may be for the
benefit of the other party. Not later than 45 days after the Closing Date,
the
parties shall make an accounting of any such amounts and promptly pay or
reimburse the other party any amounts due. One such reimbursable item to
Seller
is uniforms purchased by Seller prior to Closing for which employees pay
to
Purchaser.
23.
From
time
to time after the Closing Date, either party may request without further
consideration that the other party execute and deliver or cause to be executed
and delivered such further instruments of conveyance, assignment and transfer
and shall take such other action as may reasonably be required to effectively
consummate the transactions contemplated by this Agreement
.
Purchaser
hereby agrees to allow Seller access to any books and records from prior
to the
Effective Date should they be needed.
24.
This
Closing will be held in escrow by the respective attorneys until the Purchaser
obtains an executed employment agreement with Ralph Diaz in the form set
forth
in Exhibit 2A
.
IN
WITNESS WHEREOF
,
the
parties hereto have hereunder set their hands, the day, month and year first
hereinabove written, and they hereby acknowledge that this agreement fully
and
completed sets forth their entire agreement.
|
COMMAND
SECURITY CORPORATION
By: ___________________________
Title: __________________________
|
STERLING
PROTECTIVE GROUP, INC.
By: ___________________________
Title: __________________________
|
Howard
Chusid, individually
For
purposes of Section 4.1.2.
______________________________
Cliff
Ingber
