EXHIBIT 10.24
SETTLEMENT AGREEMENT
THIS SETTLEMENT AGREEMENT is entered into the 23rd day of November, 2001,
but effective as of November 15, 2001 (the "Effective Date"), by and among
NESCO, Inc., an Oklahoma corporation ("NESCO"); Xxxxxxx Appraisal Services,
Inc., a Missouri corporation wholly-owned by NESCO ("HAS"); Xxxxx X. Xxxxxxx
("DEH"); Xxxxx X. Xxxxxxx ("MLH"); and HVS, Inc., a Missouri corporation
wholly-owned by DEH ("HVS").
In consideration of the mutual covenants contained herein, the parties
agree as follows:
1. RECITALS.
(a) NESCO, DEH, MLH and HVS are parties in an action styled NESCO, Inc. v.
Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx, Xxxxx Rule and Xxxxxxx
Valuation Services, Case No. 01-0528-CV-W-1, presently pending in the United
States District Court for the Western District of Missouri (the "Litigation").
(b) The parties to this Agreement have agreed to settle the Litigation upon
the terms set forth herein. The terms of the settlement include, without
limitation, (i) the parties' agreement to dismiss all claims and counterclaims
made by them in the Litigation with prejudice, (ii) the agreement of HVS to
cease all operations and transfer the business and certain of the assets of HVS
to HAS, (iii) the agreement of DEH to resume his employment with HAS under terms
here after described, (iv) the agreement of NESCO, DEH and MLH to affirm the
obligations and restrictions of the non-competition obligations to NESCO and HAS
under that certain Non-Competition Agreement dated June 12, 2000 (the
"Non-Competition Agreement"), and (v) a mutual release of all claims under that
certain Purchase and Sale Agreement dated June 12, 2000 (the "Purchase and Sale
Agreement").
2. EMPLOYMENT OF DEH BY HAS.
(a) HAS hereby employs DEH in the capacity of President.
(b) The term of DEH's employment shall commence on the Effective Date and
shall continue until June 1, 2005 (the "Term").
(c) DEH acknowledges that his employment by HAS shall be "at will," and
that HAS shall have the right to terminate the employment of DEH at any time for
any reason or for no reason.
(d) DEH acknowledges that his job duties give him access to trade secrets
and confidential information belonging to HAS, including, without limitation,
lists of past, present and future customers and the database of assembled
appraisal information. DEH responsibilities include using commercially
reasonable efforts and diligence to protect such secret and confidential
material and refraining from disclosing it to any person without the consent of
the
Board of Directors of HAS. Upon leaving the employment of HAS for any reason,
DEH agrees not to take any files, computer disks or printouts, address books or
files, or other unpublished material belonging to HAS unless he has obtained the
prior written consent of the Board of Directors of HAS to do so or as provided
by Section 11. DEH further acknowledges that his breach of this covenant shall
cause irreparable harm to HAS and that HAS shall be entitled to injunctive
relief to prevent any such violations.
(e) During the Term, HAS shall pay DEH a base salary at the rate of $10,000
per month, commencing as of the Effective Date.
(f) Subject to the provisions of Sections 2(g), (h) and (i), in addition to
base salary, HAS shall pay DEH a monthly bonus equal to 15% of the EBITDA (as
defined below) of HAS for the previous month, payable on or before the 15th day
of each month commencing the month after HAS has achieved a cumulative EBITDA of
$1,000,000 from and after the Effective Date.
(g) For the purposes of calculating the monthly bonus payable to DEH,
"EBITDA" shall mean and be defined as the net income of HAS, as reflected on the
unaudited income statement of HAS submitted to NESCO on or before the 10th day
of each month commencing the 10th day of December, 2001. The income statement
shall be prepared in accordance with generally accepted accounting principles
consistently applied (except for footnotes), and after deduction from net
revenues all ordinary and necessary business expenses incurred by HAS,
including, without limitation, cost of goods sold, selling, general and
administrative expenses, depreciation and amortization of goodwill, transaction
expenses and other non-cash items, interest expenses and federal, state and
local income taxes paid or accrued for the month in question; provided, however,
for purposes of calculating EBITDA, there shall be added back or deducted from
such net income, as the case may be, the following:
(i) there shall be added back to such net income that portion of all
federal, state and local income taxes paid or accrued (or deducted from
such net income all tax credits from net operating loss carryforwards or
otherwise) in the previous month in respect of the operations of HAS;
(ii) there shall be deducted from such net income all gains realized,
and added back to such net income all losses incurred, in the previous
month from the disposition of any assets other than in the ordinary course
of business of HAS;
(iii) there shall be deducted from or added to such net income all
"extraordinary items" of gain or loss, as that term is defined in GAAP,
paid or accrued in the previous month;
(iv) there shall be added back to such net income all interest paid or
accrued in respect of indebtedness for money borrowed by HAS, irrespective
of whether such indebtedness was incurred prior or subsequent to the
Effective Date;
(v) there shall be added back to such net income any deductions in the
previous month in respect of depreciation or the amortization of goodwill
or transaction expenses (including attorneys' fees, accounting fees,
brokers or finders fees);
(vi) there shall be added back to such net income any deductions in
the previous month in respect of the salary of DEH paid or accrued;
(vii) there shall be added back to such net income that portion of
NESCO corporate overhead allocated to HAS during the previous month; and
(viii) there shall be added back to such net income any cash payments
made by HAS during the previous month to any of the contract appraisers
described on Exhibit A hereto, for the purpose of reducing the indebtedness
owed by HAS to such contract appraisers for services rendered to HAS prior
to May 8, 2001, as set forth on such Exhibit A.
(h) The books of HAS shall be maintained on the accrual basis. No monthly
bonus shall be paid to DEH unless HAS shall have, after payment of the bonus,
sufficient cash to pay the next thirty (30) days of HAS' normal operating
expenses. If HAS has insufficient cash to pay the monthly bonus to DEH, the same
shall accrue until HAS has sufficient cash available to pay the bonus to DEH and
meet its expense reserve requirement.
(i) The books and records of HAS shall be maintained in Tulsa, Oklahoma and
Independence, Missouri and shall be subject to inspection (including an audit)
by either HAS or DEH at any time at the inspecting party's expense. If, upon
completion of any such inspection it is determined that there has been an
underpayment or overpayment of monthly bonuses to DEH for the accounting period
that is the subject of the inspection or audit, the DEH shall promptly remit to
HAS (in the case of an overpayment of bonuses), or HAS shall promptly pay to DEH
(in the case of an underpayment of bonuses), the amount of the discrepancy,
without interest. In lieu of payment, the adjustment may be made by an
appropriate debit or credit to the amount owed by HAS to DEH the month or months
following the inspection.
(j) During the Term, and for so long as DEH remains an employee of HAS, HAS
shall:
(i) retain for the benefit of all HAS employees, DEH and his family
the same Blue Cross and Blue Shield health insurance coverage currently
maintained and provided for by HVS; and
(ii) take such action as is necessary to allow DEH to serve on the Key
Management and Incentive Plan Committee of HAS, without compensation and
not as an employee or officer of NESCO.
3. TRANSFER OF HVS ASSETS TO HAS.
(a) Upon the execution of this Agreement, HVS shall (i) cease all
operations, (ii) terminate the employment of all employees and contractors,
(iii) cease billing customers under the name of "Xxxxxxx Valuation Services,"
(iv) file an amendment to its Certificate of Incorporation changing the
corporate name of HVS to DEH, Inc., and (v) execute a consent in the form of
Exhibit B hereto, permitting HAS to conduct business under the name of "HVS" or
"Xxxxxxx Valuation Services, Inc." in the state of Missouri and any other state.
Exhibit C attached hereto is a list of all of the states in which HVS has
qualified to do business as a foreign corporation. HVS agrees to take such steps
as are necessary to avoid confusion between HAS and HVS in such states,
including withdrawing HVS from the state or amending HVS' qualification papers
to reflect the change of its name to DEH, Inc.
(b) As of the Effective Date, HVS shall assign and transfer all of its
Accounts Receivable, Business and Proprietary Rights, to HAS, and shall enter
into an agreement with HAS pertaining to its current premises and Equipment, in
the form of Exhibit D attached hereto. NESCO shall indemnify and defend HVS, DEH
and/or MLH from and for any loss, liability or claim arising out of HAS' failure
to satisfy the obligations of HVS' lease or Exhibit D. As used herein,
(i) "Accounts Receivable" means the accounts receivable of HVS as of
the Effective Date.
(ii) "Equipment" means the computers, copiers, office furniture, phone
system and other miscellaneous property listed on Exhibit E hereto.
(iii) "Business" means the current business of HVS of commercial
appraisal and related services and any other business of or activity by HVS
necessary to accomplish the foregoing purposes.
(iv) "Proprietary Rights" means all trade secrets, copyrights,
patents, trademarks, service marks, customer lists, databases and all
similar types of intangible property developed, created, or owned by HVS,
or used by HVS in connection with its Business, whether or not the same are
entitled to legal protection, including without limitation: (i) all
designs, methods, inventions and know-how related thereto, (ii) all
trademarks, trade names, service marks, and copyrights claimed or used by
HVS whether or not they have been registered, and (iii) all customer lists
of HVS, and (iv) corporate names used by HVS.
(c) All invoices issued by HAS after the Effective Date, whether or not the
invoices are attributable to services rendered by HVS prior to the Effective
Date, shall be sent to customers under the name of "Xxxxxxx Appraisal Services,
Inc., d/b/a Xxxxxxx Valuation Services, Inc."
(d) All liabilities of HVS as of the Effective Date, or incurred by HVS
after the Effective Date, shall be retained by HVS, except the liabilities under
HVS' lease, HVS' obligations under Exhibit D, and payments due appraisal
subcontractors by HVS or HAS.
(e) Attached hereto as Exhibit F are the balance sheet of HVS as of the
Effective Date, and the income statement of HVS for the accounting period then
ended. DEH and HVS represent and warrant to NESCO and HAS that such financial
statements have been prepared in accordance with generally accepted accounting
principles consistently applied (except for footnotes), are complete in all
material respects and present fairly the financial condition of HVS as at the
Effective Date and the results of operations for the period indicated.
(f) Upon the execution and delivery of this Agreement, HVS shall
irrevocably deliver to HAS a check in the amount of $50,000. In addition, all
cash, checks and other revenues collected by HVS and/or HAS after the Effective
Date, that are attributable to operations conducted by HVS prior to the
Effective Date, shall be deposited in HAS' account in Kansas City at
____________Bank (account number __________), or such other account as may be
approved by DEH and NESCO (the "HAS Account"). The authorized signers on the HAS
Account shall be Xxxxx X. Xxxxxxx, Xxxxxxx Xxxxx and Xxxxxx Xxxx. The deposits
to the HAS Account shall be used only for the following purposes and in the
following order of priority:
(i) The first disbursements from the HAS Account shall be used to pay
all operating expenses of HAS that shall become due and payable on or
before December 7, 2001; provided, however, if as of such date the amount
on deposit in the HAS Account is not sufficient to pay all such expenses,
HVS and/or DEH shall promptly and irrevocably make such deposits to the HAS
Account as are necessary to make up the deficiency;
(ii) The next $150,000 in the HAS Account shall be delivered to HVS,
after deducting an estimated amount to be held in reserve to pay the next
thirty (30) days' operating expenses of HAS; and
(iii) After an aggregate of $150,000 has been delivered to HVS
pursuant to Section 3(f)(ii), the balance in the HAS Account shall be
delivered to NESCO, after deducting an estimated amount to be held in
reserve to pay the accrued monthly bonus to DEH, as provided by Section
2(f).
(g) Revenues collected by HAS that are attributable to services rendered by
HAS after the Effective Date shall also be deposited to the HAS Account, but
shall be accounted for separately from the deposits made pursuant to Section
3(f). All deposits made pursuant to this Section 3(g) shall be delivered to
NESCO after reserving an amount sufficient to pay at least thirty (30) days of
HAS' normal operating expenses, and an amount sufficient to pay the accrued
monthly bonus to DEH, as provided by Section 2(f); provided, however, neither
such reserve shall be made to the extent it has been previously established
pursuant to Sections 3(f)(ii) and (iii).
(h) Payments to NESCO pursuant to Sections 3(f)(iii) and 3(g) shall be made
on the 1st and 15th of each month, commencing with the 15th day of December,
2001.
4. GOVERNANCE OF HAS.
(a) During the Term, and as long as DEH remains an employee of HAS, NESCO
agrees to vote its shares of voting stock of HAS to maintain a board of
directors of HAS of four (4) persons, one of whom shall be DEH and the remainder
NESCO designees.
(b) During the Term, and as long as DEH remains an employee of HAS, NESCO
agrees to vote its shares of voting stock of HAS to cause the election Xxxxx X.
Xxxxxxx and Xxxxxx Xxxx as the President and a Vice President of HAS,
respectively.
5. AFFIRMATION OF ORIGINAL NON-COMPETITION OBLIGATIONS OF HVS, DEH, MLH.
All obligations of HVS, DEH and MLH under the Non-Competition Agreement, a
copy of which is attached hereto as Exhibit G, are hereby affirmed and ratified
as though fully set forth herein.
6. DISMISSAL OF LITIGATION.
Upon execution and delivery of this Agreement, NESCO agrees to dismiss with
prejudice all claims filed against HVS, DEH and MLH in the Litigation, and each
of HVS, DEH and MLH agrees to dismiss or cause the dismissal with prejudice of
all counterclaims filed by them against NESCO in the Litigation.
7. RELEASES BY HVS, DEH AND MLH.
(a) Each of HVS, DEH and MLH (collectively "Xxxxxxx") does hereby remise,
release, and forever discharge each of NESCO and HAS (collectively, "NESCO"),
its employees, agents, officers and directors, as well as its successors and
assigns, of and from all and all manner of actions, causes of action, suits,
proceedings, debts, dues, contracts, judgments, damages, claims, and demands
whatsoever in law or equity, which against NESCO Xxxxxxx ever had, now has, or
which Xxxxxxx' successors, heirs, executors, or administrators hereafter can,
shall, or may have for or by reason of any matter, cause, or thing whatsoever,
including but not limited to any manner of actions, causes of action, suits,
proceedings, debts, dues, contracts, judgments, damages, claims, and demands
whatsoever arising out of
(i) any breach or alleged breach by NESCO of its obligations under the
Purchase and Sale Agreement, or any other documents signed in conjunction
with ort related to the Purchase and Sale Agreement, including, without
limitation, (A) the failure of NESCO to pay Xxxxxxx the $200,000 Holdback
amount described therein, (B) the failure of NESCO to issue 50,000 shares
of NESCO stock to Xxxxxxx as additional consideration thereunder, and (C)
the failure of NESCO to pay Xxxxxxx a $30,000 cash bonus pursuant to his
employment agreement dated June 12, 2000;
(ii) any breach or alleged breach by NESCO of its obligations to
Xxxxxxx in connection with the acquisition of the business and assets of
Xxxxx Rule and/or Rule & Company (collectively, "Rule"), including, without
limitation, the failure of NESCO to reimburse Xxxxxxx the $200,000 advanced
by Xxxxxxx to Rule;
(iii) the failure of NESCO (A) to pay or cause the payment of amounts
owed by HAS to certain of its vendors, which vendors have held or may seek
to hold Xxxxxxx personally liable for nonpayment, and (B) the failure of
NESCO to reimburse Xxxxxxx for all amounts advanced to such vendors;
(iv) any of the facts pled in the counterclaims made by Xxxxxxx in the
Litigation; and
(vi) all attorneys fees and other costs incurred by Xxxxxxx in
connection with the foregoing.
(b) Xxxxxxx further acknowledges and represents that:
(i) NESCO, by entering into this Agreement, makes no admission of
wrongdoing or liability of any kind, but instead is compromising disputed
matters.
(ii) It is Xxxxxxx' intent to release all current or potential claims
of any type or kind whatsoever, withholding and preserving nothing.
(iii) No inducement or representation of any kind, save and except the
covenants set forth in this Agreement, has been made to Xxxxxxx in
connection with this general release.
8. RELEASES BY NESCO AND HAS.
(a) NESCO does hereby remise, release, and forever discharge Xxxxxxx, its
employees, agents, officers and directors (with the exclusion of Xxxxx Xxxxxxxx
and Rule, each of whom has entered or will enter into a separate agreement with
NESCO), as well as its successors and assigns, of and from all and all manner of
actions, causes of action, suits, proceedings, debts, dues, contracts,
judgments, damages, claims, and demands whatsoever in law or equity, which
against Xxxxxxx NESCO ever had, now has, or which NESCO's successors, heirs,
executors, or administrators hereafter can, shall, or may have for or by reason
of any matter, cause, or thing whatsoever, including but not limited to any
manner of actions, causes of action, suits, proceedings, debts, dues, contracts,
judgments, damages, claims, and demands whatsoever arising out of
(i) any breach or alleged breach by Xxxxxxx of its obligations under
the Purchase and Sale Agreement, or any other documents signed in
conjunction with or related to the Purchase and Sale Agreement;
(ii) any breach or alleged breach by Xxxxxxx of its obligations to
NESCO under the Non-Competition Agreement or Employment Agreement;
(iii) any breach or alleged breach by Xxxxxxx of its obligations to
NESCO in connection with the acquisition of the business and assets of
Rule;
(iv) any of the facts pled in the claims made by NESCO in the
Litigation; and
(v) all attorneys fees and other costs incurred by NESCO in connection
with the foregoing.
(b) NESCO further acknowledges and represents that:
(i) Xxxxxxx, by entering into this Agreement, makes no admission of
wrongdoing or liability of any kind, but instead is compromising disputed
matters.
(ii) It is NESCO's intent to release all current or potential claims
of any type or kind whatsoever, withholding and preserving nothing.
(iii) No inducement or representation of any kind, save and except the
covenants set forth in this Agreement, has been made to NESCO in connection
with this general release.
9. PURCHASE OPTION.
(a) Subject to the provisions of Section 9(b), NESCO hereby grants DEH an
option ("Purchase Option") to acquire the assets of HAS d/b/a HVS, including
data bases, files, client lists, software, the DEH non-compete obligation, the
Rule non-compete obligation, the Hatutian non-compete obligation, the property
sublease, tradenames, trademarks and other general intangibles/goodwill. The
Purchase Price shall total $3,000,000, of which amount $300,000 shall be paid in
cash at the closing and the balance by the execution and delivery of a
promissory note by DEH and MLH to NESCO in the form of Exhibit H hereto. The
note shall be in the principal amount of $2,700,000, and shall be repaid in
monthly installments equal to 15% of the acquiring entity's gross revenue
receipts, plus simple interest on the outstanding principal balance at a fixed
rate of ten percent (10%) per annum; provided, all outstanding principal and
accrued interest thereon shall be due and payable on the fifth anniversary of
such note. The note shall be secured by all of the assets acquired. No
prepayment premium shall apply.
(b) Except as otherwise provided in Section 9(c), the Purchase Option shall
be exercisable only upon the receipt by HAS of written notice of exercise by DEH
within sixty (60) days after the occurrence of one of the following events
(referred to herein as a "Triggering Event"):
(i) the voluntary filing of a bankruptcy proceeding by HAS;
(ii) any filing by HAS' creditors of a valid involuntary proceeding in
bankruptcy against HAS, thereby causing HAS' assets and/or obligations to
come under the jurisdiction and/or control of any bankruptcy court
(excluding any jurisdiction related to NESCO's lenders who are determined
to have a valid and perfected security interests in HAS/HVS accounts
receivable and other collateral);
(iii) the filing of a valid dissolution or liquidation proceeding
against HAS by a third party;
(iii) the inability of HAS to meet its direct, non-contingent
obligations as they become due; or
(iv) the termination of DEH's employment by HAS without Cause, or
forced removal of DEH from the board of HAS without Cause. As used herein,
"Cause" shall mean
(A) DEH shall have committed a willful and serious act against
HAS intending to enrich himself at the expense of HAS;
(B) DEH shall have engaged in conduct that has caused
demonstrable and serious injury, monetary or otherwise, to HAS as
evidenced by a binding and final judgment, order, or decree of a court
or administrative agency of competent jurisdiction in effect after
exhaustion of all rights of appeal of the action, suit or proceeding,
whether civil, criminal, administrative, or investigative;
(C) DEH, in carrying out his duties hereunder, shall have been
guilty of willful gross neglect or willful gross misconduct resulting,
in either case, in material harm to HAS;
(D) DEH shall have refused to carry out his duties in gross
dereliction of duty and, after receiving written notice to such effect
from HAS, shall have failed to cure the problem within thirty (30)
days;
(E) DEH shall have been convicted of a Class A felony; or
(F) DEH or HVS shall have breached any of his or its obligations
under this Agreement or the Non-Competition Agreement and, after
receiving notice to such effect from HAS, shall have failed to cure
the breach within ten (10) days.
(c) None of the events described in Section 9(b) shall be a Triggering
Event if the event was caused by or resulted from the disbursement of $150,000
to HVS pursuant to Section 3(f).
(d) The Purchase Option shall expire if not exercised on or before the
expiration of the expected Term of DEH's employment or any mutually agreeable
renewal thereof.
10. SITE TRAC.
(a) NESCO shall pay DEH a bonus equal to 5% of net revenue for collected
sales of the Site Trac system to New Customers which result from DEH's direct
contacts and efforts after the date of this Agreement.
(i) "New Customers" shall exclude any Person utilizing the Site Trac
system as of the date of this Agreement, or any Affiliates of such Person.
(ii) "Affiliate," means, with respect to any specified Person, any
other Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control
with, such specified Person.
(iii) "Person" means a natural person, or governmental agency or other
unit, or an entity, including, without limitation, a trust, estate,
association, partnership, or domestic or foreign limited partnership,
limited liability company, limited liability partnership or corporation.
(b) All expenses directly incurred by DEH in the marketing of Site Trac
shall be subject to approval by NESCO for reimbursement, which approval shall
not be unreasonably withheld.
(c) All expenses incurred by Site Trac in connection with the marketing of
the Site Trac system shall be borne solely by Site Trac.
11. ACCESS TO FILES.
DEH and each contract appraiser performing work for HAS shall have access
to any files pertaining to the services performed for HAS by the contract
appraiser and shall have the right to retain a copy of any such file at DEH's
expense. DEH's copies shall be for use with regulators and for compliance with
any state licensing requirements. DEH's access and retention to such files shall
be for the sole purpose of regulatory compliance (unless acquired pursuant to
the Purchase Option).
12. NOTICES.
(a) Each notice required or given under this Agreement shall be in writing
and shall be deemed given (i) when received, if personally delivered; (ii) the
day after it is sent, if sent by a recognized expedited delivery service with
next-day delivery requested; or (iii) five days after it is sent, if mailed,
postage prepaid, via certified mail, return receipt requested. In each case,
notice shall be sent to the following, as applicable, or such other address as
such party shall have specified by notice in writing to the other parties:
If to NESCO or HAS: NESCO, Inc.
00000 X. 00xx Xx.
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxx
Phone: 000-000-0000
Fax: 000-000-0000
E-mail: xxxx@xxxxx-xxx.xxx
With copy to: H. Xxxxx Xxxxxx
Doerner, Saunders, Xxxxxx & Xxxxxxxx, LLP
000 X. Xxxxxx Xxx., Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-mail: xxxxxxxx@xxxx.xxx
If to HVS, DEH or MLH: Xxxxx X. Xxxxxxx
0000 X. Xxxxxx Xxxxx, Xxxxxxxx 00
Xxxxxxxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-mail: xxxxxxxx@xxxxxxxxxxxxxxxx.xxx
With copy to: Xxxxxx X. Xxxxxx
0000 Xxxx 000xx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-Mail: xxxxxxx@xxxxxx.xxx
(b) Whenever any notice is required to be given under the provisions of law
or this Agreement, a waiver thereof, in writing, signed by the party or parties
entitled to such notice, whether before or after the time stated therein, shall
be deemed equivalent to notice.
13. GENERAL.
(a) This Agreement shall be binding upon and inure to the benefit of the
parties, their heirs, personal representatives, successors and permitted
assigns.
(b) All section captions in this Agreement are for convenience only. They
shall not be deemed part of this Agreement and in no way define, limit, extend
or describe the scope or intent of any provisions hereof.
(c) This Agreement may be executed in several counterparts, each of which
shall be deemed an original, and said counterparts shall constitute but one and
the same instrument which may be sufficiently evidenced by one counterpart.
(d) Whenever the context may require, any pronoun used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns, pronouns and verbs shall include the plural and vice
versa.
(e) The parties to this Agreement shall execute and deliver all documents,
provide all information and take or refrain from taking action as may be
necessary or appropriate to achieve the purposes of this Agreement.
(f) This Agreement and the Non-Competition Agreement constitute all of the
agreements among the parties hereto pertaining to the subject matter hereof and
supersede all prior agreements and understandings pertaining thereto, including,
without limitation, the Purchase and Sale Agreement, the employment agreement
between NESCO and DEH dated June 12, 2000, and all prior settlement agreements
between the parties relating to the Litigation.
(g) No failure by any party to insist upon the strict performance of any
covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute waiver of any
such breach or any other covenant, duty, agreement or condition.
(h) This Agreement (other than the Non-Competition Agreement) shall be
governed by and construed in accordance with the domestic laws of the State of
Oklahoma without giving effect to any choice or conflict of law provision or
rule (whether of the State of Oklahoma or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Oklahoma. The Non-Competition Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Missouri without giving effect
to any choice or conflict of law provision or rule (whether of the State of
Missouri or any other jurisdiction) that would cause the application of the laws
of any jurisdiction other than the State of Missouri.
(i) If any action is brought to enforce, or to construe or determine the
validity of, any term or provision of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees and costs of the action.
(j) If any provision of this Agreement is or becomes invalid, illegal, or
unenforceable in any respect, the validity, legality, and enforceability of the
remaining provisions contained herein shall not be affected thereby.
(k) Each of the parties submits to the jurisdiction of any federal or state
court sitting in Tulsa, Oklahoma or Kansas City, Missouri, in any action or
proceeding arising out of or relating to this Agreement, and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court. Each of the parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought and waives any bond, surety,
or other security that might be required of any other party with respect
thereto. Any party may make service on any other party by sending or delivering
a copy of the process to the party to be served at the address and in the manner
provided for the giving of notices as described above in Section 12. Nothing in
this Section 13(k), however, shall affect the right of any party to bring any
action or proceeding arising out of or relating to this Agreement in any other
court or to serve legal process in any other manner permitted by law or in
equity. Each party agrees that a final judgment in any action or proceeding so
brought shall be conclusive and may be enforced by suit on the judgment or in
any other manner provided by law or in equity.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the 23 day of November, 2001.
NESCO, Inc.
By: /s/ Xxxxxx Xxxx
------------------------------------
Title: President
---------------------------------
Xxxxxxx Appraisal Services, Inc.
By: /s/ Xxxxxx Xxxx
------------------------------------
Title: President
---------------------------------
/s/ Xxxxx X. Xxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
HVS, Inc.
By: /s/ Xxxxx X. Xxxxxxx
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Title: President
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Exhibits:
A Indebtedness Owed By HAS to Certain Contract Appraisers
B Consent by HVS to Use of Corporate Name
C List of States In Which HVS is Qualified To Do Business
D Agreement Regarding HVS' Premises and Equipment
E List of Equipment of HVS
F Financial Statements of HVS
G Non-Competition Agreement of HVS, DEF and MLH
H Promissory Note
