Exhibit 10.8
EXECUTION
VERSION
CONSULTING AGREEMENT
THIS
CONSULTING AGREEMENT (this “Agreement”), dated as of
July 15, 2019, is entered into by and between Command Center, Inc.
(“CCNI”) and (b) Dock Square HQ, LLC, a
Delaware limited liability company (“Dock Square”). CCNI and
Dock Square are referred to collectively herein as the
“Parties” and individually
as a “Party”.
RECITALS
WHEREAS, pursuant to an Agreement and
Plan of Merger dated April 8, 2019, among CCNI One, Inc.
(“Merger Sub
1”), CCNI, HQ Holdings, Command Florida, LLC
(“Merger Sub
2”), and Richard Hermanns, as Member Representative
(the “Merger
Agreement”), (i) Merger Sub 1will merge with and into
HQ Holdings, and HQ Holdings will be the surviving entity in such
merger, (ii) HQ Holdings will then merge with and into Merger Sub
2, and Merger Sub 2 will be the surviving entity in such merger,
(iii) CCNI will be converted to a Delaware corporation, and (iv)
the members of HQ Holdings will receive shares of common stock of
CCNI, in each case on the terms and subject to the conditions set
forth in the Merger Agreement;
WHEREAS, Dock Square desires to provide
to CCNI, and CCNI desires to receive from Dock Square, the Services
in exchange for the issuance by CCNI of CCNI Shares to Dock Square,
in each case on the terms and subject to the conditions set forth
herein; and
WHEREAS, the Parties desire to enter
into this Agreement in connection with and pursuant to the Merger
Agreement.
NOW, THEREFORE, in consideration of the
foregoing and the respective representations, warranties,
covenants, and agreements set forth herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties, intending to be legally bound,
hereby agree as follows:
1. Definitions.
For
purposes of this Agreement (a) references to
“Exhibits”, “Schedules” and
“Sections” are to Exhibits, Schedules and Sections of
this Agreement unless expressly indicated otherwise, (b) references
to statutes include all rules and regulations promulgated
thereunder, and all amendments and successors thereto from time to
time, (c) the word “including” shall be construed as
“including without limitation”, (d) all
“Exhibits”, Recitals and “Schedules” of
this Agreement are incorporated herein by reference, (e) unless the
context otherwise requires, the words “hereof’,
“hereby” and “herein” and words of similar
meaning when used in this Agreement refer to this Agreement in its
entirety (including all Exhibits and Schedules hereto) and not to
any particular Exhibit, Schedule, Section or provision of this
Agreement, and (f) all references in
this Agreement to any gender include references to all genders, and
references to the singular include references to the plural and
vice versa. Certain capitalized terms are defined in this Agreement
where they first appear. Certain other capitalized terms used in
this Agreement are defined in this Section
1 as
follows:
“2% Owner” is defined in
the definition of Independent Third Party.
“3-Year Look-Back Test” is
defined in Schedule
I.
“3-Year Look-Back
Threshold” shall mean three (3) times the applicable
Gross Revenue Threshold attributed to the applicable CCNI
Shares.
“3-Year Measurement
Period” shall mean the remaining portion of the fiscal
year in which the Gross Revenue Threshold (including
“contracted” and “non-contracted” revenue)
was achieved, plus 3 additional fiscal years
thereafter.
“Affiliate” means, with
respect to any Person, (a) any other Person, directly or
indirectly, controlled by, under common control of, or controlling
such Person; (b) any other Person, directly or indirectly, in which
such Person holds, of record or beneficially, 5% or more of the
equity or voting securities; (c) any other Person that holds, of
record or beneficially, 5% or more of the equity or voting
securities of such Person; or (d) any director, officer, manager
(if such Person is a limited liability company) or general partner
of such Person.
“Agreement” is defined in
the Preamble of this Agreement.
“Board” means the board of
directors of CCNI.
“Business Day” means any
day that is not a Saturday, Sunday or any other day on which banks
are required or authorized to be closed in Berkeley County, South
Carolina.
“CCNI” is defined in the
Preamble of this Agreement.
“CCNI Share” or
“CCNI
Shares” means unregistered, voting common stock in
CCNI, which shall be issued to Dock Square in return for services
provided to CCNI or any of its subsidiaries by Dock Square, subject
to the terms of this Agreement.
“Contract” means any
written or oral contract, agreement, instrument, obligation,
commitment, arrangement, or undertaking of any nature (including
leases, licenses, mortgages, notes, guarantees, sublicenses,
subcontracts, letters of intent, bonds, pledges, indentures,
options, concessions, franchises and purchase orders).
“control” (including, with
correlative meanings, the terms “controlled by” and
“under common
control with”) means, as used with respect to any
Person, the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such Person, whether through ownership of voting securities, by
contract or agreement or otherwise.
“Dock Square” is defined
in the Preamble of this Agreement.
“Equity Holders” means any
Persons that holds any Equity Interests in any another
Person.
“Equity Interests” means
(a) any partnership interests, (b) any membership or limited
liability company interests or units, (c) any shares of capital
stock (including CCNI Shares), (d) any other interest or
participation (including profits interests) that confers on a
Person the right to receive a share of the profits and losses of,
or Distributions of, the issuing entity, (e) any subscriptions,
calls, warrants, options, or commitments of any kind or character
relating to, or entitling any Person or entity to purchase or
otherwise acquire membership or limited liability company interests
or units, capital stock, or any other equity securities, (f) any
securities convertible into or exercisable or exchangeable for
partnership interests, membership or limited liability company
interests or units, capital stock, or any other equity securities,
or (g) any other interest classified as an equity security of a
Person.
“Gross Revenue” means any
and all revenue (whether or not from any Contract) generated by
CCNI or any of its subsidiaries or any franchise (or similar
enterprise of CCNI or any of its subsidiaries, in each case,
directly or indirectly, attributed (as determined in good faith by
CCNI) to the Services (including the use of Dock Square (or any of
its officer’s, director’s or equity holder’s)
name, brand or derivation thereof); provided, however, that (a) revenue shall
be determined when paid to the applicable Person and for any
applicable 12-month period, Gross Revenue shall include any
accounts receivable that is collected within the standard and
customary accounts receivable payment cycle for, or as contracted
by, CCNI with respect to the specific customer after the expiration
of such 12-month period, and (b) if CCNI or Dock Square elects to
specifically target or meet with a new or existing customer, CCNI
shall use commercially reasonable efforts to inform Dock Square,
and Dock Square shall use commercially reasonable efforts to inform
CCNI, of the same. By way of example, if a customer orders and pays
CCNI $2,000,000 annually prior to the date hereof and Dock Square
provides Services such that the customer orders and pays CCNI
$6,000,000 annually, Gross Revenue shall equal the difference, or
$4,000,000.
“Gross Revenue Threshold”
and “Gross Revenue
Thresholds” is defined in Schedule I.
“Immediate Family Member”
means with respect to any Person who is an individual, each
grandparent, parent, spouse, civil or domestic partner, sibling
(including step-siblings), niece, nephew, or child (including those
adopted) or other lineal descendant (including all grandchildren,
great grandchildren, etc.) of such individual and each custodian or
guardian of any property of one or more of such Persons in the
capacity as such custodian or guardian.
“Independent Third Party”
means any Person, who, immediately prior to a contemplated
transaction, directly or indirectly (including through such
Person’s Affiliates), (a) does not own in excess of 2% of any
of CCNI’s Equity Interests (a “2% Owner”), (b) is not,
or was not, a member of the Board of CCNI , (c) is not controlling,
controlled by or under common control with, any such 2% Owner or a
member of the Board of CCNI , and (d) is not an Immediate Family
Member of any such 2% Owner or a member of the Board of CCNI or a
trust for the benefit of such 2% Owner, a member of the Board of
CCNI, and/or such other Persons.
“Merger Agreement” is
defined in the Recitals of this Agreement.
“Merger Sub 1” is defined
in the Recitals of this Agreement.
“Merger Sub 2” is defined
in the Recitals of this Agreement.
“Organizational and Governing
Documents” means (a) any certificate or articles of
incorporation, bylaws, certificate or articles of formation,
operating agreement or partnership agreement, (b) any documents
comparable to those described in clause (a) as may be applicable
pursuant to any law and (c) any amendment, restatement or
modification to any of the foregoing.
“Party” and
“Parties” is defined in
the Preamble of this Agreement.
“Person” means an
individual, partnership, joint venture, association, corporation,
trust, estate, limited liability company, limited partnership,
limited liability limited partnership, limited liability
partnership, unincorporated entity of any kind, governmental
entity, or any other legal entity.
“Services” means any
actions taken by Dock Square to (a) make introductions to any
prospective customers on behalf of CCNI or its subsidiaries, (b)
attend meetings either in person or telephonically, participate on
telephone calls, or correspond with any prospective or existing
customers on behalf of CCNI or its subsidiaries, (c) expand a
relationship with any existing customers on behalf of CCNI, (d)
participate in the execution of a Contract (or amendment thereof)
or arrangement with any customer on behalf of CCNI or its
subsidiaries, in each case that results in an executed Contract or
additional business for CCNI or its subsidiaries, and/or (e) use of
Dock Square’s name or brand (or that of any of its officers,
directors, managers, equity holders or Affiliates) with any
prospective or existing customers on behalf of CCNI or its
subsidiaries; provided, however, that if CCNI or Dock
Square elects to specifically target or meet with a new or existing
customer, CCNI shall use commercially reasonable efforts to inform
Dock Square, and Dock Square shall use commercially reasonable
efforts to inform CCNI, of the same.
“Transaction
Documents” means this Agreement and each of the other
agreements, certificates, documents and instruments contemplated
hereby and thereby, including all Schedules and Exhibits
hereto.
2. Services; Business Opportunities;
Reimbursements.
(a) During the period
commencing on the date hereof, Dock Square (on a consulting basis)
shall provide the Services to CCNI or its subsidiaries, as
applicable. In performing the Services provided for hereunder, Dock
Square is acting as an independent contractor. Nothing in this
Agreement shall be interpreted or construed as creating or
establishing an employment relationship between CCNI or its
subsidiaries and Dock Square. Dock Square acknowledges and agrees
that Dock Square is solely responsible for all taxes, withholdings,
and other similar statutory obligations including self-employment
tax and workers’ compensation insurance incurred in
connection with the provision of Services hereunder.
(b) The
doctrine of corporate opportunity, or any analogous doctrine, shall
not apply to Dock Square or any of its officers, directors,
managers, equity holders or Affiliates. CCNI renounces any interest
or expectancy of CCNI in, or in being offered an opportunity to
participate in, business opportunities that are from time to time
presented to Dock Square or any of its respective Affiliates.
Neither Dock Square nor any of its officers, directors, managers,
equity holders or Affiliates who acquires knowledge of a potential
transaction, agreement, arrangement or other matter that may be an
opportunity for CCNI, shall have any duty to communicate or offer
such opportunity to CCNI, and neither Dock Square nor any of its
officers, directors, managers, equity holders or Affiliates shall
not be liable to CCNI, or to its Equity Holders for breach of any
fiduciary or other duty by reason of the fact that Dock Square or
any of its officer, directors, equity holders or Affiliates pursues
or acquires for, or directs such opportunity to another Person or
does not communicate such opportunity or information to CCNI or its
Equity Holders; provided, however, that (i) no amendment
or repeal of this Section
2(b) shall apply unless approved in writing by Dock Square,
(ii) in no event shall this Section 2(b) with respect to
Dock Square apply to any temporary staffing opportunities (Dock
Square shall present all such temporary staffing opportunities to
CCNI), and (iii) the foregoing restrictions in clause (ii) shall not (A) apply with
respect to any such temporary staffing opportunities if Dock Square
offers a temporary staffing opportunity to CCNI and CCNI does not
notify Dock Square of its election to pursue such opportunity
within twenty (20) days thereafter, and/or (B) prevent any Dock
Square employee from participating in any venture in the same
capacity that they participate on the date hereof.
(c) CCNI
will directly pay or reimburse Dock Square or any of its officers,
directors, managers, equity holders or Affiliates, as the case may
be, for such Person’s reasonable and actual business and
travel expenses incurred in the course of providing (or related to)
the Services; provided,
that in no event shall any such payments or reimbursements be made
for Dock Square’s overheard, salaries, or similar
costs.
3. Dock
Square’s CCNI Shares. Subject to the satisfaction of the grant and
vesting requirements of the CCNI Shares set forth in
Schedule
I, CCNI shall issue to Dock
Square the number of CCNI Shares set forth in such
schedule.
4. Information
Rights. In the event that Rick
Hermanns is no longer an officer actively involved in the control
of business operations of CCNI, upon written request by Dock
Square, CCNI shall furnish to Dock Square customer and related
Gross Revenue information to the extent necessary to enable Dock
Square to verify Gross Revenue related to the Services.
Notwithstanding the foregoing, nothing in this provision shall be
interpreted to require CCNI to provide such information in any
specific or unreasonable format that would be overly burdensome to
CCNI. All information provided pursuant to this Section 4
shall be subject to the terms and
conditions set forth in Section
7.
5. Registration Rights; Legend
Removal. CCNI covenants and agrees as follows:
(a) Registration.
If CCNI proposes to register any shares of its common stock
(“Common
Stock”) under the Securities Act of 1933, as amended
(the “Securities
Act”), in connection with the public offering of such
Common Stock solely for cash (other than in an Excluded
Registration) (such shares, the “CCNI Registrable
Shares”), CCNI shall promptly give Dock Square notice
of such registration at least 30 days before the anticipated filing
date. Within ten (10) days after receipt of such notice by Dock
Square, Dock Square may request in writing to have its Registrable
Securities included in such offering. Thereafter, CCNI shall,
subject to the provisions of Section 5(b), use commercially
reasonable efforts to cause to be registered all of the Registrable
Securities that Dock Square has requested to be included in such
registration. CCNI shall have the right to terminate or withdraw
any registration initiated by it under this Section 5(a) before the
effective date of such registration, whether or not Dock Square has
elected to include the Registrable Securities in such registration.
The expenses (other than Selling Expenses) of such withdrawn
registration shall be borne by CCNI.
(b) Underwriting
Requirements. In connection with any registration pursuant
to Section 5(a),
CCNI shall include the Registrable Securities that are requested by
Dock Square to be included in such registration on the same terms
and conditions as the CCNI Registrable Shares otherwise being sold
in such registration; provided, however, that with respect to
any such registration initiated by CCNI, (x) Dock Square shall
accept all reasonable terms of the underwriting agreement as agreed
upon between CCNI and the managing underwriter, and (y) if the
managing underwriter advises CCNI in writing that, in its
reasonable opinion, the inclusion of all CCNI Registrable Shares,
together with the Registrable Securities requested by shareholders
to be included in such registration would interfere with the
successful marketing (including pricing) of the CCNI Registrable
Shares, then the number of CCNI Registrable Shares and the
Registrable Securities to be included in such registration shall be
reduced pro rata based on the number of CCNI Registrable Shares and
Registrable Securities with registration rights owned by each shareholder, including Dock Square,
who is participating in such offering, or in such other proportions
as shall mutually be agreed to by such shareholders (including Dock
Square).
(c) Information
Requirements. It shall be a condition precedent to the
obligations of CCNI to take any action pursuant to this
Section 5 with
respect to the Registrable Securities of Dock Square that Dock
Square shall furnish to CCNI such information regarding itself, the
Registrable Securities held by it, and the intended method of
disposition of such Registrable Securities as is reasonably
required to effect the registration of the Registrable
Securities.
(d) Expenses
of Registration. All expenses (other than Selling Expenses)
incurred in connection with registrations or filings pursuant to
Section 5(a),
including all registration and filing fees; printers’ and
accounting fees; and fees and disbursements of counsel for CCNI,
shall be borne and paid by CCNI. All Selling Expenses relating to
the Registrable Securities registered pursuant to this Section 5 shall be borne and
paid by Dock Square.
(e) Indemnification.
CCNI agrees to indemnify, to the extent permitted by applicable
law, Dock Square, its officers and directors and each Person who
controls Dock Square against any losses, claims, damages,
liabilities and expenses (including reasonable attorneys’
fees) (collectively, “Damages”) incurred and
caused by any untrue or alleged untrue statement of material fact
contained in any registration statement or any amendment thereof or
supplement thereto, or any omission or alleged omission of a
material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as the same
are caused by or contained in any information furnished in writing
to CCNI by or on behalf of Dock Square expressly for use therein.
Dock Square agrees to indemnify, to the extent permitted by
applicable law, CCNI and its directors, each of its officers who
signs the registration statement, each Person who controls CCNI,
legal counsel and accountants for CCNI, any underwriter and any
other shareholder of CCNI Registrable Shares against any Damages
incurred, in each case only to the extent that such Damages are
caused by or contained in any information furnished in writing to
CCNI by or on behalf of Dock Square expressly for use in connection
with such registration; provided, however, that in no event shall
the amounts payable under this Section 5(e) exceed the net
proceeds from the offering received by Dock Square, except in the
case of fraud or intentional misconduct by Dock
Square.
(f) Legend
Removal. Upon the request of Dock Square from time to time
following the expiration of the applicable holding period for any
Registrable Securities under Rule 144 of the Securities Act
(“Rule
144”), CCNI agrees to cooperate with Dock Square and,
following the delivery by Dock Square of the information described
in clauses (i)
through (iii)
below, take all steps reasonably necessary in order to promptly
effect the removal of any restrictive legend on the Registrable
Securities, provided, however, that if such request is made with
respect to Registrable Securities acquired from CCNI or an
affiliate (as defined under Rule 144) of CCNI within one year of
such request, CCNI shall only be required to remove any restrictive
legend on such Registrable Securities in connection with a sale.
CCNI shall bear all costs associated with the removal of such
legend, regardless of whether the request is made in connection
with a sale or otherwise, so long as Dock Square provides to CCNI
any information CCNI deems reasonably necessary to determine that
the legend is no longer required under the Securities Act or
applicable state securities laws, including (if there is no
applicable registration statement) (i) a certification that the
holder is not an affiliate (as defined under Rule 144) of CCNI,
(ii) a covenant to inform CCNI if it should thereafter become an
affiliate (as defined under Rule 144) of CCNI and to consent to the
notation of an appropriate restriction in such event, and (iii) a
certification as to the length of time the Registrable Securities
have been held.
(g) Defined
Terms. The following terms used in this Section 5 have the respective
meanings set forth below:
(i) “Excluded
Registration” means (a) a registration relating to the
grant, issuance or sale of securities to employees of the Company
or a subsidiary pursuant to a stock option, stock purchase, or
similar plan or other compensatory arrangement; (b) a registration
relating to an SEC Rule 145 transaction; (c) a registration on SEC
Forms S-4 and S-8, any successor forms thereto, or any other form
not available for registering the resale of the Registrable
Securities or that does not include substantially the same
information as would be required to be included in a registration
statement covering the resale of the Registrable Securities; or (d)
a registration in which the only Common Stock being registered is
Common Stock issuable upon conversion of debt securities that are
also being registered.
(ii) “Registrable
Securities” means the shares of Common Stock that have
vested and been issued to Dock Square pursuant to this Agreement;
provided,
however, that
“Registrable Securities” shall exclude in all cases (x)
any securities sold by a Person in a transaction in which the
applicable rights under
this Agreement are not assigned
pursuant to Section
10(c), or (y) any securities
that may be sold pursuant to an effective registration
statement; provided,
further,
that “Registrable Securities” shall exclude any
securities that may be sold without restriction pursuant to Rule
144 and with respect to which an approval for listing has been
obtained by CCNI at its sole expense from the trading market on
which the Common Stock is then listed. For the avoidance of
doubt, “Registrable Securities” shall not include any
CCNI Shares that are not vested to Dock Square pursuant to the
terms of this Agreement.
(iii) “Selling
Expenses” means all underwriting discounts, selling
commissions, and stock transfer taxes applicable to the resale of
the Registrable Securities, and fees and disbursements of counsel
for Dock Square.
6. Dividends.
Any dividends may be made when and in
the amounts determined by CCNI in its sole discretion to
CCNI’s holders of shares of common stock on a pro rata basis
based on their relative number of shares of common stock;
provided,
however,
that for the purpose of this
Section
6, the number of CCNI Shares
held by Dock Square at the time of such dividends shall be subject
to the vesting provisions pursuant to, and in accordance
with, Schedule I
(and for the avoidance of doubt Dock
Square (A) shall be entitled to receive any dividends with respect
to any CCNI Shares that (1) have been earned by achieving the
applicable 12-Month Gross Revenue Thresholds pursuant to, and in
accordance with, Schedule I,
and (2) remain unvested during the
applicable 3-Year Measurement Period with respect to such 3-Year
Look-Back Test, and (B) shall not be entitled to receive any
dividends with respect to any CCNI Shares that (1) remain unvested
upon the expiration of the applicable 3-Year Measurement Period
with respect to such 3-Year Look-Back Test and/or (2) are unearned
by not achieving the applicable 12-Month Gross Revenue Thresholds
pursuant to, and in accordance with, Schedule I
and shall remain unearned until the
applicable 12-Month Gross Revenue Threshold is met. For the
avoidance of doubt, Dock Square has no right to cause CCNI to
declare or pay any dividends. Dock Square will enter into any
agreement reasonable necessary to effect the applicable limitations
on the payment of dividends set forth in this Section
6.
7. Non-Disclosure. Each Party
hereto agrees that all non-public information furnished to such
Party pursuant to this Agreement will be kept confidential and will
not be disclosed by such Party, or by any of such Party’s
agents, representatives, employees or Affiliates, in any manner, in
whole or in part, except that such Party shall be permitted to
disclose such information (a) to such Party’s agents,
representatives, employees and Affiliates who need to be familiar
with such information in connection with such Party’s
performance of its obligations hereunder or the monitoring of such
Party’s investment in CCNI, and who are informed of the
confidential nature thereof, (b) to the extent requested by any
government agency or self-regulatory body having jurisdiction over
such Party, (c) to the extent required by applicable law (so long
as such Party shall have, to the extent legally permissible, first
provide the other Party a reasonable opportunity to contest the
necessity of disclosing such information) or the rules of any
securities exchange, (d) to the extent necessary for the
enforcement of any right of such Party arising under this
Agreement, to any Person who is informed of, and agrees to be bound
by, the confidential nature hereof or thereof, and (f) if such
information is known or becomes generally available to the public
other than as a result of the unauthorized disclosure of such
information by such Party or such Party’s agents,
representative, employees or Affiliates; provided, however, that any Party shall
also be permitted to disclose such information to its current and
prospective partners and equity holders in connection with its
Affiliates’ normal fund raising, marketing, informational or
reporting activities so long as they are informed of the
confidential nature thereof and agree to keep such information
confidential on the terms set forth herein. Each Party will be
responsible for any breaches or violations by its respective
agents, representatives, employees and Affiliates of the
obligations contained in this Section 7.
8. Representations,
Warranties and Covenants. Each
of the Parties hereby severally represents and warrants to the
other Parties, as the case may be, as follows:
(a) Such Party (i) if
an entity, is duly formed, validly existing and in good standing
under the laws of its jurisdiction of organization and has all
requisite power and authority to enter into, deliver, and perform
its obligations under, this Agreement and the other Transaction
Documents, and to consummate the transactions contemplated hereby
and thereby, and (ii) if an individual, has all legal capacity and
authority to enter into, deliver, and perform its obligations
under, this Agreement and the other Transaction Documents, and to
consummate the transactions contemplated hereby and thereby. With
respect to each Party which is an entity, the execution, delivery
and performance of this Agreement and the other Transaction
Documents the transactions contemplated hereby and thereby have
been duly authorized by the Board or its Board of Managers, as
applicable.
(b) This Agreement and
the other Transaction Documents have been duly authorized by all
necessary action and does not contravene any provision of any
Party’s Organizational and Governing Documents or any law,
regulation, rule, decree, order, judgment or contractual
restriction binding on such Party or any of its
assets.
(c) All consents,
approvals, authorizations, permits of, filings with and
notifications to, any Person necessary for the due execution,
delivery and performance of this Agreement and the other
Transaction Documents by such Party have been obtained or made and
all conditions thereof have been duly complied with, and no other
action by, and no notice to or filing with, any Person is required
in connection with the execution, delivery or performance of this
Agreement and the other Transaction Documents by such
Party.
(d) This Agreement and
the other Transaction Documents constitute a legal, valid and
binding obligation of such Party enforceable against such Party in
accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditors’ rights
generally, and (ii) general equitable principles (whether
considered in a proceeding in equity or at law).
(e) When the CCNI
Shares are issued by CCNI as contemplated by this Agreement, such CCNI Shares
will be duly and validly issued free and clear of any lien,
security interest, mortgage, pledge, encumbrance, charge, claim or
restriction of any kind whatsoever (other than restrictions imposed
by applicable securities law), and no liability for any capital
contributions or for any obligations to CCNI will attach
thereto.
(f) CCNI is duly
organized, validly existing and in good standing under the laws of
the State of its incorporation or formation with all requisite
power and authority to own its properties and to carry on its
business as such business is now conducted.
(g) The execution,
delivery and performance of this Agreement by such Party does not
and will not conflict with, violate or cause a breach of any
agreement, contract or instrument to which such Party is a party or
any judgment, order or decree to which such Party is
subject.
(h) CCNI is not in
default under or in violation of any provision of its
Organizational and Governing Documents.
9. Closing.
(b) The
closing of the transactions contemplated hereunder (the
“Closing”)
will take place by exchange of
electronic counterpart signatures on the date hereof, concurrently
with the closing pursuant to the Merger Agreement (the
“Closing
Date”). All transfers and
deliveries hereunder will be deemed to have been made
simultaneously and will become effective as of 12:01 a.m. (Eastern
Time) on the Closing Date.
(c) At or prior to the
Closing, each of the Parties (as applicable) shall deliver,
or cause to be delivered, to the
Parties (as the case may be) the separate instruments
reasonably required by a Party in connection with the consummation
of the transactions contemplated under this Agreement.
10. Miscellaneous.
(a) Notices. All notices, requests,
demands and other communications required or permitted hereunder
shall be in writing and shall be deemed to have been duly given (a)
one (1) Business Day after being delivered by hand, (b) five (5)
Business Days after being mailed first class or certified with
postage paid, (c) one (1) Business Day after being couriered by
overnight receipted courier service, or (d) one (1) Business Day if
sent by email or confirmed facsimile transmission, in each case to
the Parties at addresses set forth on the signature pages hereto,
or to any other address as any Party may designate by written
notice to the other Parties.
(b) Modification.
No amendment or modification to this
Agreement shall be binding on any Party, unless the amendment or
modification is in writing and executed by all of the Parties with
the same formality as this Agreement.
(c) Successors;
Assigns. This Agreement shall
be binding upon the Parties, their heirs, administrators,
successors, executors and assigns. Dock Square shall not assign any
of its rights or obligations under this Agreement without the prior
written consent of CCNI.
(d) Counterparts.
This Agreement may be executed in
multiple counterparts (including by means of facsimile or
electronically transmitted portable document format (PDF) signature
pages), any one of which need not contain the signatures of more
than one Party, but all such counterparts taken together shall
constitute one and the same instrument and shall have the same
force and effect as an original fully executed version of this
Agreement.
(e) Headings.
All headings set forth in this
Agreement are intended for convenience only and shall not control
or affect the meaning, construction or effect of this Agreement or
of any of its provisions.
(f) Entire
Agreement. This Agreement
(including the Exhibit and Schedules hereto) constitutes the entire
agreement of the Parties with respect to the contemplated
transactions set forth herein, and it is agreed that any prior oral
or written agreements are null and void.
(g) Severability.
The invalidity of any one or more
provisions of this Agreement shall not affect the enforceability of
the remaining provisions of this Agreement. In the event that any
one or more of the provisions contained in this Agreement shall be
declared invalid, this Agreement shall be construed as if the
invalid provision or provisions had not been
inserted.
(h) No
Third Party Beneficiary. Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any Person,
other than the Parties and their respective heirs, personal
representatives, legal representatives, successors and assigns, any
rights or remedies under or by reason of this
Agreement.
(i) Schedules,
Exhibits, Sections and Articles. All Schedules and Exhibits attached to this
Agreement shall be deemed part of this Agreement and incorporated
into this Agreement, as if fully contained in this Agreement. All
references in this Agreement to an Exhibit, Section, or Schedule
shall mean an Exhibit, Section, or Schedule to this Agreement
(unless otherwise indicated). All references in this Agreement to
this Agreement shall include all of the Exhibits or Schedules
attached to this Agreement.
(j) Further
Assurances. Each of the
Parties, at the Closing, or at any time or times thereafter, upon
request of any Party, will execute such additional instruments,
documents or certificates as any Party deems reasonably necessary
in order to effect the transactions contemplated
hereby.
(k) Governing
Law. This Agreement shall be
governed by and construed and enforced in accordance with the laws
of the State of Florida, without regard to its conflicts of laws
principles.
(l) Arbitration.
The Parties (and all Persons claiming
by or through them) agree that any dispute, suit, action or
proceeding whatsoever relating to, arising out of, in connection
with, or with respect to, this Agreement, its validity or the
subject matter hereof that cannot be resolved by negotiation or
mediation between the Parties within thirty (30) days will be
resolved exclusively by binding confidential arbitration under the
Commercial Rules (Expedited) of the American Arbitration
Association (AAA) then in effect. Arbitration will take place in
New York City, New York before a panel of three (3) arbitrators.
Each Party will select one (1) arbitrator and those two arbitrators
will select a third arbitrator who will act as chair. Any questions
as to the arbitrability of any such dispute, suit, action or
proceeding and as to the validity of this Section 10(1)
shall be determined by the 3-member
arbitration panel. The arbitration shall commence upon service of a
demand for arbitration in accordance with the AAA Rules. There
shall be no discovery allowed in the arbitration, except that each
Party shall be entitled to serve ten (10) requests for production
of documents and ten (10) interrogatories from the other Party,
which must be responded to within ten (10) Business Days of
service, and each Party shall provide to the other Party five (5)
Business Days in advance of the hearing the written evidence upon
which it intends to rely. The final arbitration hearing shall be
conducted within thirty (30) days of the appointment of the
arbitration panel. The final arbitration hearing shall last no
longer than two (2) days. The Parties may, by mutual agreement,
waive any or all of the foregoing deadlines. If either Party fails
or refuses to pay its share of any fee due to or advance requested
by the AAA or the arbitration panel, the other Party may advance
it, and that sum shall be credited or awarded in the final award to
the Party advancing the fees, whether or not it is the prevailing
Party, in addition to any other sums the arbitrators may award, if
any. The final award shall include an award in favor of the
prevailing Party of actual costs and reasonable attorneys’
fees, including, without limitation, the filing and arbitration
fees. Orders to compel arbitration, or in aid of arbitral
jurisdiction, and to enforce any arbitral award, may be entered in
any court having jurisdiction thereof, including costs and
reasonable attorneys’ fees incurred in enforcing such award.
Proceeding to arbitration and obtaining an award thereunder shall
be a condition precedent to the bringing or maintaining of any
action in any court with respect to any dispute whatsoever arising
under this Agreement, except for an action in aid of arbitral
jurisdiction. Each Party hereby waives any right to seek removal of
any dispute to any state or federal courts except as provided in
this Agreement. WITHOUT WAIVER OR COMPROMISE, IN ANY WAY, OF THE
FOREGOING, EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE SUBJECT MATTER HEREOF.
[REMAINDER OF PAGE INTENTIONAL LEFT BLANK]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first above written.
|
|
COMMAND CENTER, INC.
By:
/s/ Richard
Hermanns
Name:
Richard Hermanns
Title:
Chief Executive Officer, President
Address:
111 Springhall Drive
Goose
Creek, SC 29445
Attn:
Richard Hermanns
E-Mail:
rfhermanns@hirequestllc.com
|
[Signature
Page to Consulting Agreement]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first above written.
|
|
DOCK SQUARE:
DOCK SQUARE HQ, LLC
By:
/s/ Amar
Bajpai
Name:
Amar
Bajpai
Title:
Authorized
Signatory
Address:
1200 Anastasia
Way
Suite
500
Coral
Gables, FL 33134
Attn:
Amar
Bajpai
Facsimile:
(___)
E-Mail:
amar@docsquarecapital.com
|
[
Schedule Redacted ]
[Signature Page to
Consulting Agreement]
RESTRICTED SHARES AWARD AGREEMENT
This Restricted Shares Award Agreement (this
“Agreement”) is made and entered into as of
______________________________ (the “Grant Date”) by and between HireQuest, Inc., a
Delaware corporation (the “Company”) and ______________________ (the
“Director”).
WHEREAS, the Company has
adopted the Command Center, Inc. 2016 Stock Incentive Plan (the
“Equity Incentive
Plan”) under which awards
of Restricted Shares may be granted; and
WHEREAS, the Company has
adopted the 2019 HireQuest, Inc. Non-Employee Director Compensation
Plan (the “Director Compensation
Plan”);
and
WHEREAS, the Compensation
Committee and Board of Directors of the Company have determined
that it is in the best interests of the Company and its
shareholders to grant the award of Restricted Shares provided for
herein.
NOW, THEREFORE, the parties
hereto, intending to be legally bound, agree as
follows:
1. Grant
of Restricted Shares. Pursuant
to Section 8 of the Equity Incentive Plan, entitled Restricted
Awards, the Company hereby issues to the Director on the Grant Date
a Restricted Shares Award consisting of, in the aggregate,
________________ shares of Common Stock of the Company (the
"Restricted
Shares"), on the terms and
conditions and subject to the restrictions set forth in this
Agreement, the Director Compensation Plan, and the Equity Incentive
Plan. Capitalized terms that are used but not defined herein have
the meaning ascribed to them in the Equity Incentive Plan or the
Director Compensation Plan, as the case may be.
2. Consideration.
The grant of the Restricted Shares is made in consideration of the
services already rendered and to be rendered by the Director to the
Company and constitutes the entirety of the Initial Award of
Initial Restricted Shares as set forth in the Director Compensation
Plan.
3. Restricted Period;
Vesting.
3.1 Except
as otherwise provided herein, provided that the Director does not
experience a Separation from Service prior to the applicable
vesting date, the Restricted Shares will vest in accordance with
the following schedule:
[
reserved for vesting schedule ]
The period over which the Restricted Shares vest
is referred to as the "Restricted
Period". If any vesting date,
as set forth above, would otherwise occur during a blackout period
pursuant to the Company’s Insider Trading Policy, said shares
shall vest on the first day immediately following the end of the
blackout period.
3.2 Except
as otherwise provided herein, if the Director experiences a
Separation from Service before the Restricted Shares vest, then the
unvested portion of the Restricted Shares shall be automatically
forfeited, provided,
however, that if the Director
is serving on the First Vesting Date or any anniversary thereof, he
or she shall not forfeit that year’s vesting solely because
vesting occurs during a blackout period.
3.3 The
foregoing vesting schedule notwithstanding, if the Director’s
service is involuntarily terminated other than for Cause and the
Director’s termination date occurs within 12 months following
the occurrence of a Change in Control, 100% of the unvested
Restricted Shares shall vest as of the date of the Director’s
termination of service.
4. Restrictions.
Subject to any exceptions set forth in this Agreement, the Director
Compensation Plan, and the Equity Incentive Plan, during the
Restricted Period, the Restricted Shares or the rights relating
thereto may not be assigned, alienated, pledged, attached, sold or
otherwise transferred or encumbered by the Director. Any attempt to
assign, alienate, pledge, attach, sell or otherwise transfer or
encumber the Restricted Shares or the rights relating thereto
during the Restricted Period shall be wholly ineffective and, if
any such attempt is made, the Restricted Shares will be forfeited
by the Director and all of the Director's rights to such shares
shall immediately terminate without any payment or consideration by
the Company.
5. Rights
as Shareholder; Dividends.
5.1 During
the Restricted Period, the Director shall have the right to vote
the Restricted Shares. In addition, the Director’s Restricted
Share Account shall be credited with stock equivalent to all
dividends paid by the Company during the Restricted Period. Said
dividends are subject to vesting of the Restricted Shares and shall
be forfeited in the event that the Restricted Shares do not vest
for any reason.
5.2 The
Company may issue stock certificates or evidence the Director's
interest by using a restricted book entry account with the
Company's transfer agent. Physical possession or custody of any
stock certificates that are issued shall be retained by the Company
until such time as the Restricted Shares vest.
5.3 If
the Director forfeits any rights he or she has under this Agreement
in accordance with Section 3 of this Agreement, the Director shall,
on the date of such forfeiture, no longer have any rights as a
shareholder with respect to the Restricted Shares and any stock
paid as dividends with respect to the Restricted Shares, and shall
no longer be entitled to vote or receive dividends on such
shares.
6. No
Right to Continued Service on the Board. Neither the Equity Incentive Plan, the Director
Compensation Plan, nor this Agreement shall confer upon the
Director any right to be retained as a Director of the Company or
in any other capacity. Further, nothing in the Equity Incentive
Plan, the Director Compensation Plan, or this Agreement shall be
construed to limit the discretion of the Company to terminate the
Director's Continuous Service at any time.
7. Adjustments.
If any change is made to the outstanding Common Stock or the
capital structure of the Company, if required, the shares of Common
Stock shall be adjusted or terminated in any manner as contemplated
by Section 14 of the Equity Incentive Plan, entitled Adjustments
Upon Changes in Stock.
8. Tax
Liability and Withholding.
8.1 As
a condition to the issuance of any Restricted Shares, the Company
may withhold, or require the Director to pay or reimburse the
Company for, any taxes which the Company determines are required to
be withheld under federal, state or local law in connection with
the grant or vesting of the Restricted Shares.
8.2 Notwithstanding
any action the Company takes with respect to any or all income tax,
social insurance, payroll tax, or other tax-related withholding
("Tax-Related
Items"), the ultimate liability
for all Tax-Related Items is and remains the Director's
responsibility and the Company (a) makes no representation or
undertakings regarding the treatment of any Tax-Related Items in
connection with the grant or vesting of the Restricted Shares or
the subsequent sale of any shares and (b) does not commit to
structure the Restricted Shares to reduce or eliminate the
Director's liability for Tax-Related Items.
9. Compliance
with Law. The issuance and
transfer of shares of Common Stock shall be subject to compliance
by the Company and the Director with all applicable requirements of
federal and state securities laws and with all applicable
requirements of any stock exchange on which the Company's shares of
Common Stock may be listed. No shares of Common Stock shall be
issued or transferred unless and until any then applicable
requirements of state and federal laws and regulatory agencies have
been fully complied with to the satisfaction of the Company and its
counsel. The Director understands that the Company is under no
obligation to register the shares of Common Stock with the
Securities and Exchange Commission, any state securities commission
or any stock exchange to effect such
compliance.
10. Legends.
A legend may be placed on any certificate(s) or other document(s)
delivered to the Director indicating restrictions on
transferability of the Restricted Shares pursuant to this Agreement
or any other restrictions that the Committee may deem advisable
under the rules, regulations and other requirements of the
Securities and Exchange Commission, any applicable federal or state
securities laws or any stock exchange on which the shares of Common
Stock are then listed or quoted.
11. Notices.
Any notice required to be delivered to the Company under this
Agreement shall be in writing and addressed to the Secretary of the
Company at the Company's principal corporate offices. Any notice
required to be delivered to the Director under this Agreement shall
be in writing and addressed to the Director at the Director's
address as shown in the records of the Company. Either party may
designate another address in writing (or by such other method
approved by the Company) from time to time.
12. Governing
Law. This Agreement will be
construed and interpreted in accordance with the laws of the State
of Delaware without regard to conflict of law
principles.
13. Interpretation.
Any dispute regarding the interpretation of this Agreement shall be
submitted by the Director or the Company to the Board of Directors
for review. The resolution of such dispute by the Board of
Directors shall be final and binding on the Director and the
Company.
14. Restricted
Shares Subject to Equity Incentive Plan. This Agreement is subject to the Equity
Incentive Plan as approved by the Company's shareholders. The terms
and provisions of the Equity Incentive Plan as it may be amended
from time to time are hereby incorporated herein by reference. In
the event of a conflict between any term or provision contained
herein and a term or provision of the Equity Incentive Plan, the
applicable terms and provisions of the Equity Incentive Plan will
govern and prevail. In the event of a conflict between any term or
provision contained herein and a term or provision of the Director
Compensation Plan, the Director Compensation Plan will govern and
prevail. In the event of a conflict between any term or provision
contained in the Director Compensation Plan and the Equity
Incentive Plan, the Equity Incentive Plan will govern and
prevail.
15. Section
409A.
This Agreement is intended to comply
with the requirements of Section 409A, to the extent applicable,
and shall be interpreted accordingly. Notwithstanding the
foregoing, the Company makes no representations or covenants that
any compensation paid or awarded under this Agreement will comply
with Section 409A.
16. Successors
and Assigns. The Company may
assign any of its rights under this Agreement. This Agreement will
be binding upon and inure to the benefit of the successors and
assigns of the Company. Subject to the restrictions on transfer set
forth herein, this Agreement will be binding upon the Director and
the Director's beneficiaries, executors, administrators and the
person(s) to whom the Restricted Shares may be transferred by will
or the laws of descent or distribution.
17. Severability.
The invalidity or unenforceability of any provision of the Equity
Incentive Plan, the Director Compensation Plan, or this Agreement
shall not affect the validity or enforceability of any other
provision of the Equity Incentive Plan, the Director Compensation
Plan, or this Agreement, and each provision of the Equity Incentive
Plan, the Director Compensation Plan, and this Agreement shall be
severable and enforceable to the extent permitted by
law.
18. Discretionary
Nature of Equity Incentive Plan. The Equity Incentive Plan is discretionary and
may be amended, cancelled or terminated by the Company at any time,
in its discretion. The grant of the Restricted Shares in this
Agreement does not create any contractual right or other right to
receive any Restricted Shares or other Awards in the future. Future
Awards, if any, will be at the sole discretion of the Company. Any
amendment, modification, or termination of the Plan shall not
constitute a change or impairment of the terms and conditions of
the Director's membership on the Board.
19. Amendment.
The Board of Directors has the right to amend, alter, suspend,
discontinue or cancel the Restricted Shares, prospectively or
retroactively; provided,
that, no such amendment shall
adversely affect the Director's material rights under this
Agreement without the Director's consent.
20. Arbitration.
Any and all claims arising out of or
relating to this Agreement shall be resolved by binding
arbitration. Arbitration shall occur in Charleston, South Carolina.
Arbitration shall proceed pursuant to the rules of the American
Arbitration Association except where this agreement conflicts with
those rules. In case of conflict, the terms of this agreement shall
govern. A mutually agreeable neutral arbitrator shall be selected
by the parties from a list provided by the local office of the
American Arbitration Association in the Charleston, South Carolina
region. The arbitration proceedings and opinion shall be
confidential. The arbitration hearing shall occur within 120 days
of the date it is filed. Notwithstanding anything in the rules of
the American Arbitration Association, the parties shall be allowed
to engage in discovery according to the following rules: each party
shall serve all interrogatories and requests for documents within
30 days of filing the arbitration. Each party shall be limited to
10 interrogatories and 5 document requests. Discovery shall be
fully responded to within 30 days of receipt. The parties may each
take 1 deposition including the deposition of an opposing party. No
other discovery shall be allowed except upon written motion to the
arbitrator. The arbitrator shall issue a written opinion including
findings of fact and conclusions of law within thirty days of the
conclusion of the arbitration hearing. The arbitrator may award any
relief, legal or equitable, to either party available under law or
which may be awarded by a court of competent jurisdiction where the
arbitration takes place provided, however
that the arbitrator shall not be
empowered to award punitive, consequential, or other exemplary
damages. The parties hereby expressly waive their right to recover
punitive, consequential, and exemplary damages in such a
proceeding. The parties shall have the rights to appeal or seek
confirmation or modification of such a decision that are set forth
in the Federal Arbitration Act. This arbitration agreement and any
arbitration shall be governed by the Federal Arbitration Act to the
exclusion of state law inconsistent therewith. The parties shall
share equally the administrative fees and arbitrator’s fees
and expenses unless a contrary provision of law governs. All other
costs and expenses associated with the arbitration, including,
without limitation, each party’s respective attorney’s
fees, shall be borne by the party incurring the
expense.
21. Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original but all of which together will constitute one
and the same instrument. Counterpart signature pages to this
Agreement transmitted by facsimile, by electronic mail in portable
document format (.pdf), or by any other electronic means intended
to preserve the original graphic and pictorial appearance of a
document, will have the same effect as physical delivery of the
paper document bearing an original signature.
22. Acceptance.
The Director hereby acknowledges receipt of a copy of the Equity
Incentive Plan, Director Compensation Plan, and this Agreement. The
Director has read and understands the terms and provisions thereof,
and accepts the Restricted Shares subject to all of the terms and
conditions of the Equity Incentive Plan, the Director Compensation
Plan, and this Agreement. The Director acknowledges that there may
be adverse tax consequences upon the grant or vesting of the
Restricted Shares or disposition of the shares and that the
Director has been advised to consult a tax advisor prior to such
grant, vesting or disposition.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
|
|
COMPANY
HireQuest, Inc.
|
|
|
By: ________________________
Name:
Title:
|
|
|
DIRECTOR
[ Reserved for Director Name ]
|
|
|
By: ________________________
|
ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT (the “Agreement”) is effective
as of the 15th day of July, 2019 (the “Effective Date”) as
between COMMAND CENTER,
INC., a Washington corporation, or its successors,
(collectively, “Seller”), and
______________, a_____________________ (“Buyer”). Seller and Buyer
are collectively referenced herein as the “Parties.”
RECITALS
A.
Seller desires to sell to Buyer and Buyer desires to purchase from
Seller, on the terms and subject to the conditions of this
Agreement, all the assets and properties of Seller as specifically
set forth herein regarding Seller’s business operations
located at __________________________, with the exception only of
those assets and properties described in Schedule 2.1 attached to this
Agreement (the “Excluded
Assets”).
B.
Seller is the owner and operator of a staffing business at
__________________________________ and Seller provides temporary
workers in day labor, light industrial, as well as office and
clerical positions.
C.
As Buyer is also in the staffing business, the Parties have agreed
that Buyer will purchase from Seller the Included Assets of the
Purchased Location, as that term is defined herein, under the terms
set forth in this Agreement.
AGREEMENTS
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants, conditions, and agreements contained in this Agreement,
and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, the
parties to this Agreement hereby agree as follows:
1.
Purchase and
Sale. Subject to the terms and conditions of this Agreement
and with the exception of the Excluded Assets, Seller agrees to
sell, convey, transfer, assign, and deliver to Buyer, and Buyer
agrees to purchase from Seller on the Closing Date, free and clear
of any liens or encumbrances, all of Seller’s right, title
and interest in the business now conducted at the following
physical address: __________________________________ (the
“Purchased
Location”). The assets herein conveyed, transferred,
assigned, and delivered, as provided by this Agreement, include all
rights, title and interest of the assets and property rights, now
owned or hereafter acquired, whether tangible or intangible, which
will include all fixtures, furnishings and equipment; all
inventories, goods and supplies; all telephone listings and
telephone numbers; and all passwords, codes and documentation
needed for use of the same; all transferrable permits, licenses,
franchises and any other authorization obtained from federal, state
or local governments or agencies necessary to operate the Purchased
Location; goodwill of the Purchased Location; all real property
leases and leasehold improvements, including prepaid rent and
deposits; all customer lists and other customer information; all
signs and signage at or within the Purchased Location; assignment
of all contracts requested by Command Center, including employee
contracts, equipment leases, vendor and customer contracts; prepaid
deposits, including lease deposits; and all other assets and
property of every kind and description, all of which are referred
to collectively in this Agreement as the “Included
Assets” provided,
however, that nothing in this Agreement shall be construed
to convey to Buyer any assets of Seller utilized in any locations
other than in the Purchased Location.
The
Assets to be conveyed, transferred, assigned, and delivered as
provided by this Agreement will include the following, which may be
set forth in additional detail in Schedule A of the Bill of Sale
attached to this Agreement:
1.1.
Leasehold Interests
in Real Property. All leasehold interests held by Seller in
all land, buildings, structures, fixtures, and other improvements
located on or attached to such leasehold interests and all
easements and other rights, title or interests appurtenant to,
including but not limited to security deposits, reserves or prepaid
rents paid in connection therewith, or owned or used by Seller at
the Purchased Location (“Leasehold Interests”),
including, without limitation, the Leasehold Interests described on
Schedule 1.1
attached to this Agreement;
1.2.
Inventory.
All equipment, materials, work in process, and finished goods
produced or used at the Purchased Location (“Inventory”);
1.3.
Personal
Property. All
equipment, tools, machinery, furniture, computers, telephones,
supplies, materials, and other tangible personal property used in
any manner in connection with the Purchased Location, whether owned
or leased (“Personal
Property”), including, but not limited to all items
listed in the Bill of Sale, attached hereto as Exhibit A;
1.4.
Contractual
Rights. As may be
requested by Buyer, any and all rights in any manner related to the
ownership, possession, lease, or use of the Assets or to the
ownership, operation, or conduct of Seller’s business, rights
in or claims under leases, permits, licenses, franchises, purchase
and sales orders, covenants not to compete, and all other contracts
of any nature whatsoever concerning the Purchased Location
(“Contractual
Rights”);
1.5.
Goodwill.
Goodwill, all tangible and intangible, which relates to the
operation of the Purchased Location and all rights to continue to
use the Assets in the conduct of the going business at the
Purchased Location; and
1.6. Prepaid
Expenses. All prepaid
expenses, credits, advance payments, claims, security, refunds,
rights of recovery, rights of set-off, rights of recoupment,
deposits, charges, sums and fees (including any such item relating
to the payment of any taxes) with respect to the Assets and Assumed
Liabilities subject to the limitations set forth in this
Agreement;
1.7 Customer
Lists and Marketing Materials. All customer and supplier
lists for the Purchased Location, together with all sales and
marketing literature, sales quotes and bids, and catalogues and
brochures of any kind. Notwithstanding anything in this Agreement
to the contrary, Seller shall have the right to access and/or copy
any and all financial or other information as may be necessary or
helpful in any audit of state or federal taxes, workers
compensation, or for any other business purpose.
2.
Excluded Assets;
Assumed Liabilities.
2.1.
Excluded
Assets. Buyer will not assume or be deemed to have purchased
the Excluded Assets set forth on Schedule 2.1 attached to this
Agreement.
2.2.
Assumed
Liabilities. Buyer will not assume or be deemed to have
assumed, or to have any obligations with respect to, any
liabilities or obligations of Seller other than the contracts,
liabilities and obligations specifically assumed pursuant to this
Section 2.2
and specified on Schedule
2.2 (“Assumed
Liabilities”). All liabilities and obligations of
Seller other than those listed on Schedule 2.2 will remain solely
the liabilities and obligations of Seller (the “Retained
Liabilities”).
3.
Purchase Price;
Closing.
3.1.
Purchase
Price. The purchase price for the Assets will be paid by the
assumption of the Assumed Liabilities and by the payment of
____________________________
($_______________) (“Purchase Price”).
3.2.
Payment
of Purchase Price.
3.3.
Allocation of the
Purchase Price. Buyer and Seller agree to cooperate in
reporting the allocation of the Purchase Price as provided on the
attached Schedule
3.3.
3.4.
Closing
Date. The
“Closing
Date” or “Closing” will occur on
July 15, 2019, at 6:00 a.m., EDT, and will take place at the
offices of Seller, at 111 Springhall Drive, Goose Creek, South
Carolina, or at such other time and place as the parties may agree
to in writing.
A. Control.
At Closing, upon payment of the Purchase Price to Seller, and
subject to the terms set forth in the Promissory Note, Buyer shall
have sole and unfettered operational control, possession and right
to occupancy of the Assets and the Purchased Location.
B. Deliveries
at Closing. At the Closing: (a) Seller shall deliver to
Buyer the duly executed various agreements, certificates,
instruments and documents referred to in Section 9.1; and
(b) Buyer shall deliver to Seller the duly executed various
agreements, certificates, instruments and documents referred to in
Section 9.2.
C. Risk
and Loss Prior to Closing. Subject to the provisions of
Section 3.4 A, possession and title of the Assets will be given to
Buyer at the Closing, and assumption of the Assumed Liabilities
will occur at the Closing. Buyer will not acquire any title to the
Assets or assume any of the Assumed Liabilities until possession
has been given to it in accordance with this Section 3.4 and
accordingly, all risk and loss with respect to the Assets will be
borne by Seller until possession has been given to Buyer at the
Closing.
3.5.
Payment
of Taxes and Other Charges. Buyer will pay any and all
transaction privilege tax, sales tax, use tax, property tax, income
tax, payroll tax, excise tax, business and occupation tax, or other
transfer fee, tax, charge, or assessment which may be imposed by
any governmental agency with respect to the sale, transfer,
conveyance, and assignment of the Assets and Assumed Liabilities
pursuant to this Agreement.
3.6
Security Deposits,
Rent, and Prepaid Expenses. Buyer authorizes Seller, or
Seller’s subsidiary or affiliate, to deduct from
Buyer’s Franchisee Share (as that term is defined in the
Franchise Agreement) an amount equal all security deposits paid by
Seller and held by any landlord of the premises subject to the
Leasehold Interests and an amount to cover the rent prepaid by
Seller for the portion of any month after the Closing including,
without limitation, payments for the last month’s rent. Buyer
further authorizes Seller or Seller’s subsidiary or affiliate
to deduct from Buyer’s Franchisee Share an amount equal to
all Prepaid Expenses as defined in paragraph 1.6
hereof.
4.
Conditions to
Obligation of Buyer to Perform. The obligation of Buyer to
purchase the Assets and assume the Assumed Liabilities from Seller
at the Closing is subject to the satisfaction, on or before the
Closing Date, of all of the following conditions precedent, any or
all of which may be waived by Buyer by delivery to Seller of a
written notice of such waiver:
4.1
Approval.
Seller shall have obtained approval from its Board of Directors
authorizing it to enter into this Agreement and to consummate the
transactions contemplated hereby;
4.2
Representations and
Warranties True on the Closing Date. The representations and
warranties of Seller contained in this Agreement, in the exhibits
and schedules attached hereto, or in any certificate, document, or
statement delivered pursuant to the provisions hereof, will be true
and correct on and as of the Closing Date as though such
representations and warranties were made on and as of the Closing
Date;
4.3.
Compliance with
Agreement. Seller will have performed and complied with all
agreements, covenants, conditions, and obligations required by this
Agreement prior to or on the Closing Date;
4.4.
Third
Party Consents. Seller will have obtained all consents,
waivers, permits, approvals, and authorizations and completed all
filings or registrations required and will have delivered executed
copies or other written evidence thereof to Buyer;
4.5.
Transfer of
Licenses. Except as contained within Schedule 2.1, Seller will have
transferred or assigned to Buyer on or before the Closing Date all
licenses, permits, franchises, certificates, and authorizations
which are transferable or assignable and which are required or
necessary to enable Buyer to operate and conduct Seller’s
Business in the manner in which Seller currently operates and
conducts its business; and
4.6.
Assignment of
Warranties. Seller will assign to Buyer any and all
warranties covering or affecting the Personal Property or
Inventory.
5.
Conditions to
Obligation of Seller to Perform. The obligation of Seller to
sell the Assets at the Closing is subject to the satisfaction, on
or before the Closing Date, of all of the following conditions
precedent, any or all of which may be waived by Seller by delivery
to Buyer of a written notice of such waiver:
5.1.
Representations and
Warranties True on the Closing Date. The representations and
warranties of Buyer contained in this Agreement, in the exhibits
and schedules attached hereto, or in any certificate, document, or
statement delivered pursuant to the provisions hereof, will be true
and correct on and as of the Closing Date as though such
representations and warranties were made on and as of the Closing
Date;
5.2. Compliance
with Agreement. Buyer will have performed and complied with
all agreements, covenants, conditions, and obligations required by
this Agreement prior to or on the Closing Date;
5.3. Franchise
Agreement.
Buyer will have duly executed and delivered a franchise agreement
(the “Franchise Agreement”) in a form agreed to by the
parties, allowing Buyer to operate the Purchased Location as a
franchise of Seller. Buyer will also have executed and delivered
any and all documents required of the Franchise Agreement,
including but not limited to any required non-competition or
non-solicitation agreements;
5.4.
Assignment of
Leases. The Assignment and Assumption of Lease and Landlord
Consent Agreement attached hereto in Exhibit B shall have been duly
executed;
5.5
Merger
with Hire Quest Holdings, LLC. The mergers contemplated by
and more accurately described in that certain Agreement and Plan of
Merger dated April 8, 2019 by and among Hire Quest Holdings, LLC,
Command Center, Inc., CCNI One, Inc., Command Florida, LLC, and
Richard Hermanns, as Member Representative, (the “Merger
Agreement”) shall have been completed to the sole
satisfaction of Seller; and
5.6
Deliveries.
Buyer shall have delivered or caused delivery of executed copies of
all documents and agreements called for in this Agreement
including, without limitation, those agreements attached as
Exhibits B and D hereto.
6.
Representations and
Warranties of Seller. Seller represents and warrants to
Buyer that, as of the Effective Date and as of the Closing the
following are true and accurate:
6.1.
Organization and
Standing. Seller is a corporation duly organized, validly
existing, and in good standing under the laws of the State in which
it is organized. Seller is qualified to do business as a foreign
corporation under the laws of each jurisdiction where Seller
conducts its business outside of its state of incorporation,
including at the locations of the Purchased Location. Seller has
the requisite corporate power and authority to own, lease, and
operate its properties and is duly authorized and licensed to carry
on its businesses in the places where, and in the manner in which,
such business is presently being conducted, including the Purchased
Location.
6.2.
Capacity.
Seller has full corporate power, legal capacity, and authority to
execute and deliver this Agreement, to consummate the transactions
contemplated hereby, and to perform its obligations under this
Agreement. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the
performance of Seller’s obligations under this Agreement have
been duly authorized by Seller’s Board of Directors and no
other corporate proceedings on the part of the Seller are necessary
in connection therewith. This Agreement constitutes, and each other
agreement or instrument to be executed and delivered by Seller in
connection with this Agreement will constitute, valid and binding
obligations of Seller, enforceable against Seller in accordance
with their respective terms.
6.3.
Authority.
Neither the execution and delivery of this Agreement by Seller, the
consummation of the transactions contemplated hereby, nor the
performance of Seller’s obligations hereunder will: (a)
violate any provisions of the Articles of Incorporation or Bylaws
of Seller; (b) violate any statute, code, ordinance, rule, or
regulation of any jurisdiction applicable to Seller or the Assets
or Assumed Liabilities or the business operations at the Purchased
Location; (c) violate any judgment, order, writ, decree,
injunction, or award of any court, arbitrator, mediator,
government, or governmental agency or instrumentality, which is
binding upon Seller or which would have an adverse effect on the
Assets or Assumed Liabilities or the business operations at the
Purchased Location; or (d) violate, breach, conflict with,
constitute a default under (whether with or without notice or lapse
of time, or both), result in termination of, or accelerate the
performance required by, any of the terms, conditions, or
provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement, or other instrument or obligation to
which Seller is a party or by which Seller, the Assets or Assumed
Liabilities, or the Purchased Location are bound.
6.4.
Consents.
No consents, approvals, filings, or registrations with or by any
federal, state, or local court, administrative agency or commission
or other governmental authority or instrumentality, whether
domestic or foreign (each a “Governmental Entity”) or
any other person or entity are necessary in connection with the
execution and delivery by Seller of this Agreement, the
consummation by Seller of the transactions contemplated hereby, or
the performance of Seller’s obligations under this
Agreement.
6.5.
Absence
of Defaults. Seller
is not in default under, or in violation of, any provision of its
Articles of Incorporation or Bylaws or any indenture, mortgage,
deed of trust, loan agreement, or similar debt instrument, or any
other agreement to which Seller is a party or by which Seller is
bound or to which any of their properties are subject, nor is
Seller aware of any fact, circumstance, or event that has occurred
which, upon notice, lapse of time, or both, would constitute such a
default or violation. Seller is not in violation of any statute,
rule, regulation, or order of any Governmental Entity having
jurisdiction over Seller or any of its properties, including the
Purchased Location.
6.6.
Financial
Statements. The following documents are attached hereto as
Exhibit C:
unaudited statements of the Seller’s income and expenses for
the Purchased Location for the twelve-months ended March 29, 2019
(collectively referred to as “Financial Statements”).
The Financial Statements do not contain any untrue statement of
material fact or omit to state any material fact necessary to make
the statements or information therein not misleading. The Financial
Statements have not been prepared in accordance with United States
generally accepted accounting principles (“GAAP”), applied on a
consistent basis for the periods indicated, and each of the
Financial Statements is a compilation of the books and records of
the Seller.
6.7.
Absence
of Specified Changes. As regards Seller’s business
operations at each of the Purchased Location, from March 31, 2019,
through the Closing Date there has not been any:
A. Transactions
by Seller except in the ordinary course of business;
B. Capital
expenditures by Seller exceeding $15,000;
C. Materially
adverse change in the Assets, the financial condition, liabilities,
business, operations, or prospects of the Purchased
Location;
D. Destruction,
material damage to, or loss of any of the Assets (whether or not
covered by insurance) that adversely affects the financial
condition, business, operations, or prospects of the Purchased
Location;
E. Acquisition
or disposition of any of the Assets, except in the ordinary course
of business;
F. Amendment
or termination of any contract, agreement, or license to which
Seller is a party, except in the ordinary course of
business;
G. Waiver
or release of any right or claim of Seller, except in the ordinary
course of business;
H. Other
event or condition of any character that has or might have a
materially adverse effect on the Assets, or the financial
condition, business operations, or prospects of Seller’s
operations at the Purchased Location;
I. Incurrence
of any liability or obligation (whether absolute, accrued, or
contingent) affecting the Seller’s operations at the
Purchased Location or the Assets; or
J. Agreement
or any action or omission by Seller that would result in any of the
things described in the preceding Subsections A. through J.,
inclusive.
6.8.
Litigation and
Claims. Seller is not a party to any, and there are no
pending or threatened, suit, action, arbitration, legal,
administrative, or other proceeding or governmental investigation
against Seller that will, may or could affect the Assets or the
business operations at the Purchased Location. To the best of
Seller’s knowledge, there is no basis for the assertion of
any such proceeding, claim, action, or governmental investigation
that could affect the Assets or Seller’s ability to transfer
the Assets to Buyer. No event has occurred or circumstances exist
that may give rise to, or serve as a basis for, any such actions.
Seller is not a party to any judgment or decree, nor is Seller in
default with respect to any order, writ, injunction, or decree of
any federal, state, local, or foreign court, department, agency, or
instrumentality which will, or is likely to, affect the Assets,
Seller’s title thereto, the ability of Seller to perform its
obligations under this Agreement, or the business operations at the
Purchased Location. No event has occurred or circumstances exist
that may constitute or result in (with or without notice or lapse
of time) a violation of any governmental orders respecting the
Purchased Location.
6.9.
Compliance with
Laws. Seller is in
compliance with and not in default under any applicable foreign,
federal, state, and local statutes, regulations, ordinances, zoning
laws, engineering standards, safety standards, environmental
standards, and any other applicable laws in connection with the
ownership and use of the Assets and the conduct and operations at
the Purchased Location. Seller holds all required franchises,
permits, licenses, certificates, and authorizations necessary or
appropriate in connection with the ownership and use of the Assets
and the conduct and operations at the Purchased Location, and all
are current and valid as of the Effective Date and the Closing
Date. All required fees and charges with respect to such permits,
licenses, franchises, certificates or authorizations have been paid
in full. No event has occurred that, with or without notice or
lapse of time or both, would reasonably be expected to result in
the revocation, suspension, lapse or limitation of any permits,
licenses, franchises, certificates or authorizations.
6.10.
Title
to Assets. Seller will convey at Closing good and marketable
title to the Assets, free and clear of all liens, deeds of trust,
mortgages, pledges, charges, security interests, encumbrances,
claims, conditional sales agreements, easements, licenses,
rights-of-way, covenants, conditions, restrictions on transfer, or
other restrictions or other rights of third parties. All Assets are
adequate for their intended use, in good operating condition and
repair, reasonable wear and tear excepted, and are sufficient for
the conduct of the Seller’s business operations at the
Purchased Location as currently conducted and as proposed to be
conducted up to the Closing.
6.11.
Leasehold
Interests. Seller’s representations, warranties, and
statements regarding the Leasehold Interests are complete, current,
and accurate, do not contain or will not contain any untrue
statement of material fact, and do not omit or will not omit to
state any fact necessary to make each such representation,
warranty, or statement accurate and not misleading in any material
respect. As to the Leasehold Interests: (a) all leases under which
the Seller leases any real property (the “Real Property Leases”)
are valid and in full force and effect and constitute binding
obligations of the Seller and the counterparties thereto, and
Seller enjoys peaceful and undisturbed possession of the Real
Property Leases, in accordance with their respective terms; (b)
there are not any existing defaults by Seller under any of the Real
Property Leases that would give the lessor under such Real Property
Lease the right to terminate such Real Property Lease or amend or
modify such Real Property Lease in a manner adverse to Seller or
Buyer (after Closing); (c) no event has occurred which, after
notice or lapse of time or both, would constitute a default by
Seller under any Real Property Lease, where such default if uncured
would give the lessor under such Real Property Lease the right to
terminate such Real Property Lease or amend or modify such Real
Property Lease in a manner adverse to the Seller or Buyer (after
Closing); (d) Seller has not subleased, assigned or otherwise
granted to any person the right to use or occupy such Real Property
Leases or any portion thereof; and (e) Seller will convey all Real
Property Leases free of pledges, mortgages or other encumbrances on
all leasehold interests in any Real Property Lease.
6.12.
Brokers.
No broker or finder has acted for Seller in connection with this
Agreement or the transactions contemplated hereby and no broker or
finder is entitled to any brokerage commissions, finder’s
fee, or other compensation based on agreements or arrangements made
by Seller.
6.13.
Taxes.
A. No
deficiencies or adjustments for any tax have been claimed,
proposed, or assessed, or to the knowledge of Seller, threatened as
regards the Assets or the business operations at the Purchased
Location. For the purposes of this Agreement, the terms
“tax” and “taxes” will include all federal,
state, local, and foreign taxes, assessments, duties, tariffs,
registration fees, and other governmental charges including,
without limitation, all income, franchise, property, production,
sales, use, payroll, license, windfall profits, severance,
withholding, excise, gross receipts, and other taxes, as well as
any interest, additions, or penalties relating thereto and any
interest in respect of such additions or penalties.
B. At the
time of Closing, there are no liens for taxes upon the Assets.
Seller has withheld all taxes required to be withheld in respect of
wages, salaries, and other payments to all employees at the
Purchased Location and timely paid all such amounts withheld to the
proper taxing authority. Seller shall at all
times remain responsible for payment of all taxes in any way
resulting from the operation of the Purchased Location through the
end of the day on the Closing.
6.14.
Full
Disclosure. The representations, warranties, and statements
of Seller in this Agreement, in any exhibit or schedule attached
hereto, or in any certificate or other document furnished by Seller
to Buyer pursuant to this Agreement are complete, current, and
accurate, do not contain or will not contain any untrue statement
of material fact, and do not omit or will not omit to state any
material fact necessary to make each representation, warranty, or
statement accurate and not misleading in any material respect.
Seller has, and prior to Closing will have, provided to Buyer, in
writing, any information necessary to ensure that all
representations, warranties, or statements made by Seller to Buyer
are complete, current, and accurate and are not misleading in any
material respect.
7.
Representations and
Warranties of Buyer. Buyer represents and warrants to Seller
that, as of the Effective Date and as of the Closing
Date:
7.1.
Organization and
Standing. Buyer is a limited liability company duly
organized, validly existing, and in good standing under the laws of
the State of Florida. Buyer has the requisite power and authority
to own, lease, and operate its properties and is duly authorized
and licensed to carry on its business in the places where and in
the manner in which its business is presently being conducted )if
any) and, in particular, where the Assets and the Purchased
Location are located.
7.2.
Capacity.
Buyer has full corporate power, legal capacity, and authority to
execute and deliver this Agreement, to consummate the transactions
contemplated hereby, and to perform its obligations under this
Agreement. The execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, and the
performance of Buyer’s obligations under this Agreement have
been duly authorized by the members or shareholders of Buyer, and
no other corporate proceedings on the part of Buyer are necessary
in connection therewith. This Agreement constitutes, and each other
agreement or instrument to be executed and delivered by Buyer in
connection with this Agreement will constitute valid and binding
obligations of Buyer, enforceable against Buyer in accordance with
their respective terms.
7.3.
Authority.
Neither the execution and delivery of this Agreement by Buyer, the
consummation of the transactions contemplated hereby, nor the
performance of Buyer’s obligations hereunder will: (a)
violate any provision of the Articles of Incorporation, Operating
Agreements or Bylaws of Buyer; (b) violate any statute, code,
ordinance, rule, or regulation of any jurisdiction applicable to
Buyer, or its properties or assets; (c) violate any judgment,
order, writ, decree, injunction, or award of any court, arbitrator,
mediator, government, or governmental agency or instrumentality,
which is binding upon Buyer or which would have an adverse effect
on its properties or assets; or (d) violate, breach, conflict with,
constitute a default under, result in termination of, or accelerate
the performance required by, any of the terms, conditions, or
provisions of any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement, or other instrument or obligation to
which Buyer is a party or by which Buyer or any of its properties
or assets is bound.
7.4.
Consents.
No consents, approvals, filings, or registrations with or by any
governmental agency or instrumentality or any other person or
entity are necessary in connection with the execution and delivery
by Buyer of this Agreement, the consummation by Buyer of the
transactions contemplated hereby, or the performance of
Buyer’s obligations under this Agreement.
7.5.
Absence
of Defaults. Buyer is
not in default under, or in violation of, any provision of its
Articles of Incorporation, or Operating Agreement or Bylaws or any
indenture, mortgage, deed of trust, loan agreement, or similar debt
instrument, or any other agreement to which Buyer is a party or by
which Buyer is bound or to which any of their properties or assets
are subject, nor is Buyer aware of any fact, circumstance, or event
that has occurred which, upon notice, lapse of time, or both, would
constitute such a default or violation. Buyer is not in violation
of any statute, rule, regulation, or order of any Governmental
Entity having jurisdiction over Buyer or any of its properties or
assets.
7.6.
Compliance with
Laws. Buyer is in
compliance with and not in default under any applicable foreign,
federal, state, and local statutes, regulations, ordinances, zoning
laws, engineering standards, safety standards, environmental
standards, and any other applicable laws in connection with the
prospective ownership and use of the Assets and the conduct and
operations at the Purchased Location. Buyer holds (or at the
Closing Date will hold) all required franchises, permits, licenses,
certificates, and authorizations necessary or appropriate in
connection with the ownership and use of the Assets and the conduct
and operations at the Purchased Location. All required fees and
charges with respect to such permits, licenses, franchises,
certificates or authorizations have been paid in full or will be
paid in full as of the Closing Date. No event has occurred that,
with or without notice or lapse of time or both, would reasonably
be expected to result in the revocation, suspension, lapse or
limitation of any permits, licenses, franchises, certificates or
authorizations required to own, use and operate the Assets and the
business at the Purchased Location.
7.7.
Brokers.
No broker or finder has acted for Buyer in connection with this
Agreement or the transactions contemplated hereby and no broker or
finder is entitled to any brokerage commissions, finder’s
fee, or other compensation based on agreements or arrangements made
by Buyer.
7.8.
Tax
Consequences. Buyer represents
that it has consulted with a qualified attorney, tax advisor, or
accountant and assumes the risk of all potential income tax risks
associated with the transactions contemplated by this
Agreement.
7.9.
Full
Disclosure. The representations, warranties, and statements
of Buyer in this Agreement, in any exhibit or schedule attached
hereto, or in any certificate or other document furnished by Buyer
to Seller pursuant to this Agreement are complete, current, and
accurate, do not contain or will not contain any untrue statement
of material fact, and do not omit or will not omit to state any
material fact necessary to make each representation, warranty, or
statement accurate and not misleading in any material
respect.
7.10
Due
Diligence. Buyer warrants and represents that it has had
adequate time to conduct and complete its due diligence and has
been given access to all information that it requested during its
due diligence with respect to the terms and obligations contained
in this Agreement and its purchase of the Purchased Location. Buyer
is satisfied with the results of such due diligence.
8.
Obligations at
Closing.
8.1.
Seller’s
Obligations at Closing. At the Closing, Seller will deliver
or cause to be delivered to Buyer the following:
A.
All instruments of transfer (to the extent required to transfer
such rights), properly executed by Seller and acknowledged,
including, but not limited to, a bill of sale, deeds, and
assignments, transferring and assigning to Buyer all of
Seller’s rights, title, and interest in and to the Assets and
Assumed Liabilities, including, but not necessarily limited to, the
following:
(1)
Bill of Sale in a form substantially identical to Exhibit A attached to this
Agreement;
(2)
Assignment and Assumption of Leases for each of the Purchased
Location offices of Seller in a form substantially identical to
Exhibit B attached
to this Agreement;
(3)
Assignment and Assumption Agreement in a form substantially
identical to Exhibit
D attached to this Agreement;
B.
All instruments evidencing any and all consents, waivers, permits,
approvals, authorizations, filings, or registrations as provided
for in this Agreement;
C.
All keys, items or information that provide access the property,
offices or any personal property of or related to the Assets,
including security cards, security codes, passwords or any other
item or information necessary or required to access, operate or
possess any of the Assets or the Purchased Location;
D.
At the time of closing, Seller agrees to transfer to Buyer all of
Seller’s right, title and interest in and to the telephone
lines, cell phone numbers, facsimile lines, listings and numbers
presently assigned to the Assets at the Purchased Location, which
are the subject of this sale, including specifically, but not
limited to, the telephone numbers, facsimile number and mobile
telephone numbers stated in in Schedule A of the Bill of Sale
attached to this Agreement. Seller agrees to execute any necessary
documents and to cooperate fully with Buyer in accomplishing the
transfer of the aforesaid telephone numbers to Buyer;
and
E. All
material agreements and covenants required by this Agreement to be
performed or complied with by the Seller on or prior to the Closing
Date.
8.2.
Buyer’s
Obligation at Closing. On the Closing Date, Buyer will
deliver or cause to be delivered to Seller the
following:
A.
All instruments of transfer (to the extent required to transfer
such rights), properly executed by Buyer and acknowledged,
including, but not limited to, a bill of sale, deeds, and
assignments, transferring and assigning to Buyer all of
Seller’s rights, title, and interest in and to the Assets and
Assumed Liabilities, including, but not necessarily limited to, the
following:
(1)
Bill of Sale in a form substantially identical to Exhibit A attached to this
Agreement;
(2)
Assignment and Assumption of Leases for each of the Purchased
Location offices of Seller in a form substantially identical to
Exhibit B attached
to this Agreement;
(3)
Assignment and Assumption Agreement in a form substantially
identical to Exhibit
D attached to this Agreement;
B.
The duly executed Promissory Note for the amount of the Purchase
Price as set forth in Section 3, which is then deliverable to
Seller in terms set forth in the Promissory Note;
C.
The duly executed Franchise Agreement; and
D.
Executed resolutions of Buyer’s Board of Directors, members,
or governing body authorizing the execution and performance of this
Agreement and all actions taken by Buyer in furtherance of this
Agreement along with a certificate executed as of the Closing by a
duly authorized officer of Buyer certifying the accuracy of said
resolution and the representations and warranties made by Buyer in
this Agreement.
9.
Obligations After
Closing.
9.1.
Buyer’s
Indemnification.
A.
Buyer agrees to indemnify and hold Seller and its officers,
directors, employees, members, managers, and successors and any
subsidiaries thereof (collectively, the “Seller Indemnified
Parties”) harmless for, from, and against any and all
damages, of any kind, including, without limitation, costs of
investigation, interest, penalties, reasonable attorneys’
fees, and any and all costs, expenses, and fees incident to any
suit, action, or proceeding, incurred or sustained by Seller
Indemnified Parties, which arise out of, result from, or are
related to: (a) any inaccuracy in or omission or Buyer’s
breach or non-fulfillment of any representation, warranty,
condition, agreement, or covenant contained in this Agreement; (b)
any and all liabilities or obligations relating to the operation of
Buyer’s business after the Closing Date, including, without
limitation, all tax liabilities, liabilities for breach of
contract, liabilities arising in tort, liabilities for materials
sold or services rendered, payroll liabilities and liabilities to
any creditors, or third parties, except to the extent such
liabilities or obligations have been expressly excluded by Buyer in
writing pursuant to this Agreement; and (c) any damages, costs,
penalties and attorneys’ fees incurred due to the loss,
damage or destruction of the paper business records presently
located at each of the Purchased Location.
B.
Seller agrees that, upon the receipt of a third-party claim in
respect of which indemnity may be sought under this Section 9.2
Seller will give written notice within ten (10) days of such claim
(the “Seller’s
Notice of Claim”) to Buyer. Seller will be entitled,
at its own expense, to participate in the defense of any such claim
or action against Buyer. Buyer will have the right to assume the
entire defense of such claim, provided that: (a) Buyer gives
written notice of its desire to defend such claim (the
“Seller’s
Notice of Defense”) to Seller within 15 days after
Seller’s receipt (either individually or collectively) of the
Seller’s Notice of Claim; (b) Buyer’s defense of such
claim will be without cost of Seller or prejudice to Seller’s
rights under this Section
9.2; (c) counsel chosen by Buyer to defend such claim will
be reasonably acceptable to Seller; (d) Buyer will bear all costs
and expenses in connection with the defense of such claim; (e)
Seller will have the right, at Seller’s expense, to have
Seller’s counsel participate in the defense of such claim;
and (f) Seller will have the right to receive periodic reports from
Buyer and Buyer’s counsel with respect to the status and
details of the defense of such claim and will have the right to
make direct inquiries to Seller’s counsel in this
regard.
C.
This Section 9.1 shall survive any termination of this
Agreement.
9.2.
Utilities.
Buyer and Seller will cooperate to take all steps necessary to
transfer all utilities and services related to the operation and
conduct of business at the Purchased Location, including, without
limitation, electric service, gas service, telephone service,
sewage, water, and trash removal, into Buyer’s name effective
as of the Closing Date; provided, however, that Buyer will pay for
any new deposits or connection fees required.
9.3.
Seller’s
Records.
A.
Buyer will keep and maintain all of Seller’s paper files,
records and archives presently within the Purchased Location,
including Forms I-9, work tickets, employee applications, etc., and
all shall be maintained in their present form and condition and
safe from damage or loss for 36 months from the Closing Date.
Seller shall have free access to such files upon reasonable notice
in order to make copies or digital copies. Thereafter, Buyer shall
dispose of all such files and records by a method ensuring the
records will be destroyed without release into the general
public.
B.
Buyer will specifically indemnify Seller for any damages, costs,
penalties and attorneys’ fees incurred due to the loss,
damage or destruction of the paper business records presently
located at each of the Purchased Location.
9.4.
Transition.
Seller will maintain the goodwill of Seller’s suppliers,
customers, and business, and will otherwise cooperate with Buyer to
effectuate a smooth and orderly transition in the operation and
conduct of the business at the Purchased Location following the
Closing Date.
10.1.
Remedies Prior to
or on Closing.
A. In
the event of any material breach or default of any representation,
warranty, covenant, agreement, condition, or other obligation of
Seller under this Agreement which Seller does not cure within ten
(10) business days after actual receipt of written notice from
Buyer, Buyer may, at its option, and without prejudice to any
rights or remedies Buyer may have at law or in equity for any such
breach or default, terminate this Agreement by delivering written
notice of termination to Seller. The notice will specify the
material breach or default.
B. In
the event of any material breach or default of any representation,
warranty, covenant, agreement, condition, or other obligation of
Buyer under this Agreement which Buyer does not cure within ten
(10) business days after actual receipt of written notice from
Seller, Seller may, at its option, and without prejudice to any
rights or remedies Seller may have at law or in equity for any such
breach or default, terminate this Agreement by delivering written
notice of termination to Buyer. The notice will specify the
material breach, or default.
C.
In the event of termination of this Agreement by either Buyer or
Seller as provided in this Section 10.1, this Agreement
will become null and void.
10.2.
Remedies Subsequent
to Closing. In the event of any breach or default of any
representation, warranty, covenant, agreement, condition, or other
obligation by either party to this Agreement, the non-defaulting
party may pursue whatever rights and remedies are available to such
party at law or in equity, including, without limitation, the
rights and remedies provided in this Agreement.
11.1.
Expenses.
Except as otherwise specifically provided in this Agreement, each
party will be responsible for its own fees, costs, and other
expenses incurred in negotiating and preparing this Agreement and
in closing and carrying out the transactions contemplated
hereunder, including the fees and expenses of its counsel and other
advisors.
11.2.
Survival of
Representations, Warranties, and Covenants. The respective
representations, warranties, and covenants of Buyer and Seller made
in this Agreement or in any certificate or other document delivered
pursuant to this Agreement, including, without limitation, the
obligations of indemnity hereunder, will survive the Closing Date,
and the consummation of the transactions contemplated hereby, until
the applicable statute of limitations has run, notwithstanding any
examination made by or for the party to whom such representations,
warranties, or covenants were made, the knowledge of any officers,
directors, shareholders, employees, or agents of the party, or the
acceptance of any certificate or opinion.
11.3.
Notices. All
notices, requests, demands, and other communications required under
this Agreement will be in writing and will be deemed duly given and
received: (a) when delivered
in person;
(b) upon confirmation of receipt
when transmitted by electronic mail (but, in the case of electronic
mail, only if followed by transmittal by national overnight courier
or hand for delivery on the next Business Day); (c) upon receipt after dispatch by registered or
certified mail, postage prepaid; or (d) on the next Business Day if transmitted by national overnight courier (with
confirmation of delivery), in each case, addressed as
follows:
|
If
to Seller:
|
COMMAND CENTER,
INC.
111
Springhall Drive
Goose Creek, South
Carolina 29445
|
|
If
to Buyer:
|
_____________________________
_____________________________
_______________________________
|
Any
party may change its above-designated address by giving the other
party written notice of such change in the manner set forth
herein.
11.4.
Headings.
Headings contained in this Agreement are inserted only as a matter
of convenience and in no way define, limit, extend, or describe the
scope of this Agreement or of any provision hereof.
11.5.
Entire
Agreement; Modification. This Agreement constitutes the
entire agreement among the parties and supersedes all prior and
contemporaneous agreements and undertakings of the parties with
respect to the sale and purchase of the Purchased Location. No
supplement, modification, or amendment of this Agreement will be
binding and enforceable unless executed in writing by the parties
hereto. Nothing in this
Agreement, express or implied, shall
confer upon any other person any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement.
11.6.
Waiver.
No waiver of any of the provisions of this Agreement will be
deemed, or will constitute, a waiver of any other provision hereof
(whether or not similar) nor will such waiver constitute a
continuing waiver, and no waiver will be binding unless executed in
writing by the party making the waiver.
11.7.
Exhibits,
Schedules, and Recitals. The Exhibits and Schedules attached
to this Agreement and the Recitals set forth above are hereby
incorporated into and made a part of this Agreement.
11.8.
Counterparts.
This Agreement may be executed in one or more counterparts, each of
which will be deemed an original, but all of which will constitute
one and the same instrument.
11.9.
Governing Law;
Jurisdiction; Dispute Resolution. Except as expressly
provided herein, this Agreement will be construed in accordance
with, and governed by, the laws of the State of South Carolina,
without regard to the application of conflicts of law principles.
Except in respect of an action commenced by a third party in
another jurisdiction, the parties agree that any legal suit,
action, or proceeding arising out of or relating to this Agreement
must be instituted in a state or federal court in Berkeley County,
State of South Carolina, and they hereby irrevocably submit to the
jurisdiction of any such court.
11.10
Waiver
of Jury Trial. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT
SUCH PARTY MAY HAVE TO TRIAL BY JURY IN ANY LEGAL ACTION, SUIT OR
PROCEEDING BETWEEN THE PARTIES HERETO ARISING OUT OF, BASED UPON OR
RELATING TO THIS AGREEMENT OR THE NEGOTIATION, EXECUTION OR
PERFORMANCE HEREOF. THIS WAIVER SHALL SURVIVE TERMINATION OF THE
AGREEMENT.
11.11. Attorneys’
Fees. In the event an action or suit is brought by any party
hereto to enforce the terms of this Agreement, the prevailing party
will be entitled to the payment of its reasonable attorneys’
fees and costs, incurred in connection with such action, including
any appeal of such action.
11.12.
Parties
in Interest. Except
as expressly provided below, nothing in this Agreement is intended
to confer upon any person other than the parties to this Agreement,
their respective heirs, representatives, successors, and permitted
assigns, any rights or remedies under or by reason of this
Agreement, nor is anything in this Agreement intended to relieve or
discharge the liability of any party to this Agreement, nor will
any provision of this Agreement give any entity any right of
subrogation against or action over or against any
party.
11.13.
Successors in
Interest. Except as otherwise provided herein, all
provisions of this Agreement will be binding upon, inure to the
benefit of, and be enforceable by and against the respective heirs,
executors, administrators, personal representatives, successors,
and assigns of any of the parties to this Agreement.
11.14. Severability.
The invalidity or unenforceability of any particular provision, or
any part thereof, of this Agreement will not affect the other
provisions hereof and this Agreement will be continued in all
respects as if such invalid or unenforceable provision were
omitted. Upon a determination that any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced,
the Parties shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the Parties as closely as
possible in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the greatest extent
possible.
11.15.
Further
Documentation. Each
party will execute and deliver such further instruments and
documents and do such further acts and things as may be required to
carry out the intent and purpose of this Agreement.
11.16.
Counsel
Review. The parties hereto acknowledge and agree that each
has had the opportunity to have this Agreement and all of its
Exhibits and Schedules reviewed by counsel and the parties have
participated equally in the final wording of this Agreement and its
Exhibits and Schedules. In the event of any dispute regarding the
meaning of any of the terms contained herein or in the Exhibits and
Schedules, such terms shall not be construed against either party
on account of its being the primary drafter.
11.17. Assignment.
Buyer shall not assign its rights, interests, or obligations under
this Agreement without prior written consent of Seller.
Seller shall not assign its rights,
interests, or obligations under this Agreement to any
non-affiliated entity without prior written consent of Buyer. No
assignment by any party shall
relieve such party of any of
its obligations hereunder.
Subject to the foregoing, this Agreement will be binding upon, inure to the benefit of and
be enforceable by the parties and their respective successors and permitted
assigns.
11.18. Name
Change and Redomestication. The Parties acknowledge and
agree that, in connection with the mergers contemplated by the
Merger Agreement, Seller may change its name, state of
incorporation, or other aspects of its corporate
being.
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[SIGNATURES ON FOLLOWING PAGE]
IN
WITNESS WHEREOF, the parties hereto have executed this Asset
Purchase Agreement on July 15, 2019.
SELLER:
COMMAND
CENTER, INC.
By:
_______________________
Name:
Title:
BUYER:
____________________________
By:
_________________________
Name:
Title:
[
Schedules Redacted ]