Exhibit 10.13
ASSET SALE AND
PURCHASE
AGREEMENT
BY AND BETWEEN
NEW STAFF INC.
AND
ALLIED CONTRACT SERVICES,
LLC
JUNE 18, 2004
ASSET SALE AND PURCHASE
AGREEMENT
This ASSET SALE AND PURCHASE
AGREEMENT (this “ Agreement ”), dated
June 18, 2004 (the “ Effective Date ”), is
by and between, New Staff Inc., a California corporation (“
New Staff ”) and Allied Contract Services, LLC, a
Pennsylvania limited liability company (“ Allied
”). New Staff and Allied are individually referred to in this
Agreement as a “Party” and collectively, as the
“Parties.”
RECITALS
WHEREAS , Allied is in the business of providing
permanent and temporary staffing services to companies in the
transportation industry; and
WHEREAS , Allied desires to sell substantially all of
its assets and New Staff desires to purchase such assets upon the
terms and conditions provided herein.
NOW, THEREFORE
, in consideration of the covenants
and the mutual promises made herein, and for such other good and
valuable consideration, the Parties agree as follows:
AGREEMENT
ARTICLE 1
ASSETS;
CONSIDERATION
1.1 Asset Acquisition . Upon
the terms and subject to the conditions of this Agreement, Allied
agrees to sell, transfer, convey, assign and deliver to New Staff,
and New Staff agrees to purchase from Allied all of Allied’s
right, title and interest in the following assets:
a. Branch Offices and Related
Assets . All leases, furniture, equipment and fixtures related
to the branch offices more particularly set forth in Exhibit
A attached hereto (collectively, the “Branch Office
Assets”);
b. Miscellaneous Assets . All
other miscellaneous assets as more particularly set forth in
Exhibit B attached hereto (the “ Miscellaneous
Assets ” and together with the Branch Office Assets
collectively referred to in this Agreement as the “
Assets ”).
1.2 Allocation of Asset Value
. The Parties agree that solely for tax purposes, the consideration
for the Assets shall be apportioned as follows: (a) Branch
Office Assets - $
; and (b) Miscellaneous Assets - $
.
1.3 Consideration . Upon the
terms and subject to the conditions of this Agreement, at the
Closing (as defined below), Allied shall pay for the Assets, the
aggregate amount of TWO MILLION EIGHT HUNDRED THOUSAND AND 00/100
DOLLARS ($2,800,000) as follows:
a. $1,000,000.00 by wire transfer in
immediately available funds; and
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b. A secured promissory note in the
aggregate principal amount of ONE MILLION EIGHT HUNDRED THOUSAND
AND 00/100 DOLLARS ($1,800,000.00) (the “ Note
”) in substantially the form attached hereto as Exhibit
C ;
c. Security Agreement;
1.4 New Staff Deliverables .
Upon the terms and subject to the conditions of this Agreement, at
the Closing New Staff shall: (a) Deliver the Assets to New
Staff in “AS IS” condition; (b) Execute and
deliver the Bill of Sale in substantially the form attached hereto
as Exhibit D ; and (c) Execute and deliver all such
other instruments of sale, transfer, conveyance, assignment,
delivery and confirmation and take such action as Allied may
reasonably deem necessary or desirable in order to more effectively
transfer, convey and assign the Assets to Allied.
1.5 Allied Deliverables .
Upon the terms and subject to the conditions of this Agreement, at
the Closing Allied shall: (a) Wire $1,000,000.00 to New Staff
in immediately available funds; (b) Execute and deliver the
Note; (c) Execute and deliver the Security Agreement in
substantially the form attached hereto as Exhibit E ; and
(d) Execute and deliver all such other instruments of sale,
transfer, conveyance, assignment, delivery and confirmation and
take such action as New Staff may reasonably deem necessary or
desirable in order to effectuate the transactions contemplated by
this Agreement.
1.6 No Assumption of Liabilities
by New Staff . New Staff expressly disclaims and shall not
assume or become liable for any obligations, debts, expenses, taxes
contracts, warranty obligations, commitments or liabilities of
Allied of any kind, whether known or unknown, absolute, contingent
or otherwise, including, but not limited to, accounts payable,
notes payable, sales taxes, payroll taxes or obligations, accrued
expenses, etc.
1.7 Taxes . Allied shall be
responsible for and shall pay all sales, use, documentary, excise,
transfer or other transaction taxes, duties and other similar
charges (whether assessed or unassessed) applicable to the sale of
the Assets.
1.8 Closing . Subject to the
terms and conditions set forth herein, the closing of the
transactions contemplated hereby shall occur at: 301 Commerce
Street, Suite 1700, Fort Worth, Texas 76102 before the close of
business on June 18, 2004, or at such other place, time and
date to which the Parties may agree in writing or by mail (the
“ Closing ”).
1.9 Cash on Hand . The
Parties agree that all cash on hand as of the Closing shall remain
with New Staff.
1.10 Side Letter Agreement .
[TBD] in the form attached hereto as Exhibit F
.
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ARTICLE 2
REPRESENTATIONS AND
WARRANTIES
2.1 Representations of New
Staff . New Staff hereby represents and warrants to Allied that
the following are true as of the Effective Date:
a. Organization of New Staff;
Authority . New Staff is a corporation duly organized and
validly existing under the laws of the State of California. New
Staff has full power and authority to enter into this Agreement,
perform its obligations hereunder and consummate the transactions
contemplated hereby and this Agreement constitutes a valid and
binding obligation of New Staff.
b. No Conflict or Default .
Neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate
any statute, regulation or ordinance of any governmental authority,
or result in the breach of any material agreement, deed, contract,
mortgage, indenture, writ, order, decree or instrument to which New
Staff is a party or by which it is bound prior to the
Closing.
c. Brokers, Finders . There
is no broker, finder or other person who has been retained by New
Staff or authorized to act on its behalf and who is entitled to a
commission, fee or like payment in connection with the transactions
contemplated by this Agreement.
d. Representations and Warranties
Bring-Down . To the extent that there are any representations
and warranties related to the Assets which arose pursuant to that
certain Asset Purchase Agreement, dated June 14, 2004 by and
among Checkmate Staffing, Inc., et al and New Staff, to the extent
possible, such representations and warra
