Exhibit A
AGREEMENT AND PLAN OF MERGER between FIRST RATE STAFFING CORPORATION, a Delaware corporation, formerly Moosewood Acquisition Corporation ("First Rate (Delaware)"), FIRST RATE STAFFING, LLC a California limited liability corporation ("First Rate LLC") and the persons listed in Exhibit A hereof (collectively the "Members"), being the owners of record of all of the membership interests of First Rate LLC. First Rate (Delaware) and First Rate (LLC) being sometimes referred to herein as the "Constituent Corporations."
WHEREAS, the board of directors and members of the Constituent Corporations deem it advisable that the Constituent Corporations merge into a single corporation (the "Merger"); and
NOW, THEREFORE, in consideration of the premises and the respective mutual covenants, representations and warranties herein contained, the parties agree as follows:
1. Surviving Corporation. First Rate LLC shall be merged with and into First Rate (Delaware) which shall be the surviving corporation (hereinafter the "Surviving Corporation") in accordance with the applicable laws of the State of Delaware and the State of California.
2. Merger Date. The Merger shall become effective (the "Merger Date") upon the completion of:
(i) Adoption of this Agreement by the Members of First Rate LLC pursuant to the California Corporations Code and by the shareholders of First Rate (Delaware) pursuant to the General Corporation Law of Delaware;
(ii) Execution and filing of the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the General Corporation Law of Delaware.
(iii) Execution and filing of the Certificate of Merger with the Secretary of State of the State of California in accordance with the California Corporations Code.
3. Time of Filings. The Certificate of Merger shall be filed with the Secretary of State of Delaware upon the approval of this Agreement by the shareholders of the Constituent Corporations and the fulfillment or waiver of the terms and conditions herein and with the Secretary of State of California as soon as possible thereafter.
4. Accounting Period. Notwithstanding any other provision herein relating to the Merger Date, for all accounting purposes the effective date of the Merger shall be as of November 9, 2012.
5. Governing Law
The Surviving Corporation shall be governed by the laws of the State of Delaware.
6. Certificate of Incorporation
The Certificate of Incorporation of First Rate (Delaware) shall be the Certificate of Incorporation of the Surviving Corporation from and after the Merger Date, subject to the right of the Surviving Corporation to amend its Certificate of Incorporation in accordance with the laws of the State of Delaware.
7. Bylaws
The Bylaws of the Surviving Corporation shall be the Bylaws of First Rate (Delaware) as in effect on the date of this Agreement.
8. Name of Surviving Corporation
The name of the Surviving Corporation will be that of First Rate Staffing Corporation.
9. Conversion
The mode of carrying the merger into effect and the manner and basis of converting the membership interests of First Rate LLC into shares of the Surviving Corporation are as follows:
9.1. The percentage membership interests in First Rate LLC shown opposite each Members name in the attached Exhibit A shall be exchanged, by virtue of the Merger and without any action on the part of the holders of such membership interests, for an aggregate of 2,000,000 shares of voting common stock of First Rate (Delaware) on a pro rata basis adjusted by any increase for fractional shares and reduced by any Dissenting Interests (defined below). .
9.2. All outstanding warrants, options, membership rights and all other securities of First Rate LLC owned by the Members shall be exchanged and adjusted, subject to the terms contained in such warrants, options, stock rights or other securities, for similar securities of First Rate (Delaware).
9.3. Fractional shares of First Rate (Delaware) Common stock shall not be issued, but in lieu thereof First Rate (Delaware) shall round up fractional membership interests to the next highest whole number.
9.4. The shares of First Rate (Delaware) common stock to be issued in exchange for First Rate LLC membership interests hereunder shall be proportionately reduced by any membership interests owned by First Rate LLC members who shall have timely objected to the merger (the "Dissenting Interests") in accordance with the provisions of the General Corporation Law of Delaware, which objections will be dealt with as provided in those sections.
9.5. Each membership interest of First Rate LLC that is outstanding and owned by First Rate LLC on the Merger Date shall, by virtue of the merger and without any action on the part of First Rate LLC, be retired and canceled.
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10. Exchange of Certificates
Each holder of membership interests in First Rate LLC (except Dissenting Interests) shall surrender evidence of such ownership interest to First Rate (Delaware) and shall receive in exchange a certificate or certificates representing the number of full shares of First Rate (Delaware) common stock into which the membership interest so surrendered shall have be converted. The transfer of First Rate LLC membership interests by the Members shall be effected by the delivery to First Rate (Delaware) at the Closing of documentation representing the transferred interests endorsed in blank or accompanied by appropriate transfer documents.
11. Unexchanged Certificates
Until surrendered, each outstanding membership interest that prior to the Merger Date represented an interest in First Rate LLC (except Dissenting Interests) shall be deemed for all purposes, other than the payment of dividends or other distributions, to evidence ownership of the pro rata number of shares of First Rate (Delaware) common stock into which it was converted. No dividend or other distribution payable to holders of First Rate (Delaware) common stock as of any date subsequent to the Merger Date shall be paid to the holders of outstanding membership interests of First Rate LLC; provided, however, that upon surrender and exchange of such outstanding membership interest, there shall be paid to the record holders of the certificates issued in exchange therefor the amount, without interest thereon, of dividends and other distributions that would have been payable subsequent to the Merger Date with respect to the shares of First Rate (Delaware) common stock represented thereby.
12. Board of Directors and Officers
The members of the board of directors of the Surviving Corporation shall be the members of the board of directors of First Rate (Delaware) on the Merger Date. The officers of the Surviving Corporation shall be the officers of First Rate (Delaware) on the Merger Date.
13. Effect of the Merger
On the Merger Date, the separate existence of First Rate LLC shall cease (except insofar as continued by statute), and it shall be merged with and into the Surviving Corporation. All the property, real, personal, and mixed, of each of the Constituent Corporations, and all debts due to either of them, shall be transferred to and vested in the Surviving Corporation, without further act or deed. The Surviving Corporation shall thenceforth be responsible and liable for all the liabilities and obligations, including liabilities to holders of Dissenting Interests, of each of the Constituent Corporations, and any claim or judgment against either of the Constituent Corporations may be enforced against the Surviving Corporation.
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14. Approval of Shareholders
This Agreement shall be adopted by the Members of First Rate LLC and the shareholders of First Rate (Delaware) at meetings thereof called for that purpose or by written consent pursuant to the laws applicable thereto. There shall be required for the adoption of this Agreement the affirmative vote of the holders of at least a majority of the membership interest of First Rate LLC and a majority of the holders of all the shares of the common stock issued and outstanding and entitled to vote for First Rate (Delaware).
15. Representations and Warranties of First Rate LLC
First Rate LLC represents and warrants that:
15.1. Corporate Organization and Good Standing. First Rate LLC is a limited liability corporation duly organized, validly existing, and in good standing under the laws of the State of California, and is qualified to do business as a foreign corporation in each jurisdiction, if any, in which its property or business requires such qualification.
15.2. Capitalization. First Rate LLC is a limited liability corporation and its membership consists of one member. The membership interests are all fully paid and nonassessable.
15.3. Corporate Authority. First Rate LLC has all requisite corporate power and authority to own, operate and lease its properties, to carry on its business as it is now being conducted and to execute, deliver, perform and conclude the transactions contemplated by this Agreement and all other agreements and instruments related to this Agreement.
15.4. Authorization. Execution of this Agreement has been duly authorized and approved by First Rate LLC's managers.
15.5. Subsidiaries. First Rate LLC has no subsidiaries.
15.6. Financial Statements. The financial statements of First Rate LLC ("First Rate LLC's Financial Statements"), furnished to First Rate (Delaware) are correct and fairly present the financial condition of First Rate LLC as of the dates and for the periods involved, and such statements were prepared in accordance with generally accepted accounting principles consistently applied.
15.7. Absence of Undisclosed Liabilities. Except to the extent reflected or reserved against in First Rate LLC's Financial Statements, First Rate LLC did not have at that date any liabilities or obligations (secured, unsecured, contingent, or otherwise) of a nature customarily reflected in a corporate balance sheet prepared in accordance with generally accepted accounting principles.
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15.8. No Material Changes. There has been no material adverse change in the business, properties, or financial condition of First Rate LLC since the date of First Rate LLC's Financial Statements.
15.9. Litigation. There is not, to the knowledge of First Rate LLC, any pending, threatened, or existing litigation, bankruptcy, criminal, civil, or regulatory proceeding or investigation, threatened or contemplated against First Rate LLC or against any of its officers.
15.10. Contracts. First Rate LLC is not a party to any material contract not in the ordinary course of business that is to be performed in whole or in part at or after the date of this Agreement.
15.11. Title. First Rate LLC has good and marketable title to all the real property and good and valid title to all other property included in First Rate LLC Financial Statements. Except as may be set out therein, the properties of First Rate LLC are not subject to any mortgage, encumbrance, or lien of any kind except minor encumbrances that do not materially interfere with the use of the property in the conduct of the business of First Rate LLC.
15.12. No Violation. Consummation of the merger will not constitute or result in a breach or default under any provision of any charter, bylaw, indenture, mortgage, lease, or agreement, or any order, judgment, decree, law, or regulation to which any property of First Rate LLC is subject or by which First Rate LLC is bound.
16. Representations and Warranties of First Rate (Delaware)
First Rate (Delaware) represents and warrants that:
16.1. Corporate Organization and Good Standing. First Rate (Delaware) is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware, and is qualified to do business as a foreign corporation in each jurisdiction, if any, in which its property or business requires such qualification.
16.2. Reporting Company. First Rate (Delaware) has filed with the Securities and Exchange Commission a registration statement on Form F-10 which was declared effective pursuant to the Securities Exchange Act of 1934 and is a reporting company pursuant to §12 thereunder.
16.3. Reporting Company Status. First Rate (Delaware) has timely filed and is current on all reports required to be filed by it pursuant to §12(g) of the Securities Exchange Act of 1934.
16.4. Capitalization. First Rate (Delaware)'s authorized capital stock consists of 100,000,000 shares of common stock, $.0001 par value, of which 1,500,000 shares are issued and outstanding, and 20,000,000 shares of non-designated preferred stock of which no shares are outstanding.
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16.5. Stock Rights. There are no stock grants, options, rights, warrants or other rights to purchase or obtain the First Rate (Delaware) common or preferred stock issued or committed to be issued.
16.6. Issued Stock. All the outstanding shares of its common stock were duly authorized and validly issued, fully paid and non-assessable.
16.7. Corporate Authority. First Rate (Delaware) has all requisite corporate power and authority to own, operate and lease its properties, to carry on its business as it is now being conducted and to execute, deliver, perform and conclude the transactions contemplated by this Agreement and all other agreements and instruments related to this Agreement.
16.8. Authorization. Execution of this Agreement has been duly authorized and approved by First Rate (Delaware)'s board of directors.
16.9. Subsidiaries. First Rate (Delaware) has no subsidiaries.
16.10. Financial Statements. The financial statements of First Rate (Delaware) ("First Rate Delaware's Financial Statements"), furnished to First Rate LLC are correct and fairly present the financial condition of First Rate Delaware as of the dates and for the periods involved, and such statements were prepared in accordance with generally accepted accounting principles consistently applied.
16.11. Absence of Undisclosed Liabilities. Except to the extent reflected or reserved against in the First Rate Delaware's Financial Statements, First Rate (Delaware) did not have at that date any liabilities or obligations (secured, unsecured, contingent, or otherwise) of a nature customarily reflected in a corporate balance sheet prepared in accordance with generally accepted accounting principles.
16.12. No Material Changes. There has been no material adverse change in the business, properties, or financial condition of First Rate (Delaware) since the date of the First Rate Delaware's Financial Statements.
16.13. Litigation. There is not, to the knowledge of First Rate (Delaware), any pending, threatened, or existing litigation, bankruptcy, criminal, civil, or regulatory proceeding or investigation, threatened or contemplated against First Rate (Delaware) or against any of its officers.
16.14. Contracts. First Rate (Delaware) is not a party to any material contract not in the ordinary course of business that is to be performed in whole or in part at or after the date of this Agreement.
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16.15. Title. First Rate (Delaware) has good and marketable title to all the real property and good and valid title to all other property included in the First Rate Delaware's Financial Statements. Except as set out in the balance sheet thereof, the properties of First Rate (Delaware) are not subject to any mortgage, encumbrance, or lien of any kind except minor encumbrances that do not materially interfere with the use of the property in the conduct of the business of First Rate (Delaware).
16.16. No Violation. Consummation of the merger will not constitute or result in a breach or default under any provision of any charter, bylaw, indenture, mortgage, lease, or agreement, or any order, judgment, decree, law, or regulation to which any property of First Rate (Delaware) is subject or by which First Rate (Delaware) is bound.
17. Representations and Warranties of the Members
The Members, individually and separately, represent and warrant as follows:
17.1. Title to Membership Interests. The Members, and each of them, are the owners, free and clear of any liens and encumbrances, of the amount of their First Rate LLC membership interests which are listed in the attached schedule and which they have contracted to exchange.
17.2. Litigation. There is no litigation or proceeding pending, or to each Member's knowledge threatened, against or relating to the membership interests of First Rate LLC held by the Members.
18. Conduct of First Rate LLC Pending the Merger Date
First Rate LLC covenants that between the date of this Agreement and the Merger Date:
18.1. No change will be made in First Rate LLC's certificate of formation, operating agreement or other charter document.
18.2. First Rate LLC will not make any change in membership interest.
18.3. First Rate LLC will submit this Agreement for its Members' approval with a favorable recommendation by its managers and will use its best efforts to obtain the requisite approval.
18.4. First Rate LLC will use its best efforts to maintain and preserve its business organization, employee relationships, and goodwill intact, and will not enter into any material commitment except in the ordinary course of business.
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19. Conduct of First Rate (Delaware) Pending the Merger Date
First Rate (Delaware) covenants that between the date of this Agreement and the Merger Date:
19.1. No change will be made in First Rate (Delaware)'s certificate of incorporation or bylaws.
19.2. First Rate (Delaware) will not make any change in its authorized or issued capital stock, declare or pay any dividend or other distribution or issue, encumber, purchase, or otherwise acquire any of its capital stock otherwise than as provided herein.
19.3. First Rate (Delaware) will submit this Agreement for its shareholders' approval with a favorable recommendation by its board of directors and will use its best efforts to obtain the requisite shareholder approval.
19.4. First Rate (Delaware) will use its best efforts to maintain and preserve its business organization, employee relationships, and goodwill intact, and will not enter into any material commitment except in the ordinary course of business.
20. Conditions Precedent to Obligation of First Rate LLC and the Members
First Rate LLC and the Members' obligation to consummate this Merger shall be subject to fulfillment on or before the Merger Date of each of the following conditions, unless waived in writing by First Rate LLC or the Members as appropriate:
20.1. First Rate (Delaware)'s Representations and Warranties. The representations and warranties of First Rate (Delaware) set forth herein shall be true and correct at the Merger Date as though made at and as of that date, except as affected by transactions contemplated hereby.
20.2. First Rate (Delaware)'s Covenants. First Rate (Delaware) shall have performed all covenants required by this Agreement to be performed by it on or before the Merger Date.
20.3. Board of Director Approval. This Agreement shall have been approved by the Board of Directors of First Rate (Delaware).
20.4. Supporting Documents of First Rate (Delaware). First Rate (Delaware) shall have delivered to First Rate LLC supporting documents in form and substance satisfactory to First Rate LLC, to the effect that:
(i) First Rate (Delaware) is a corporation duly organized, validly existing, and in good standing.
(ii) First Rate (Delaware)'s authorized and issued capital stock is as set forth herein.
(iii) The execution and consummation of this Agreement have been duly authorized and approved by First Rate (Delaware)'s board of directors.
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21. Conditions Precedent to Obligation of First Rate (Delaware)
First Rate (Delaware)'s obligation to consummate this merger shall be subject to fulfillment on or before the Merger Date of each of the following conditions, unless waived in writing by First Rate (Delaware):
21.1. First Rate LLC and the Members' Representations and Warranties. The representations and warranties of First Rate LLC and the Members set forth herein shall be true and correct at the Merger Date as though made at and as of that date, except as affected by transactions contemplated hereby.
21.2. First Rate LLC and the Members' Covenants. First Rate LLC and the Members shall have performed all covenants required by this Agreement to be performed by it on or before the Merger Date.
21.3. Board of Director Approval. This Agreement shall have been approved by the Board of Directors of First Rate (Delaware).
21.4. Membership Execution. This Agreement shall have been executed by the required number of membership interests of First Rate LLC.
21.5. Supporting Documents of First Rate LLC. First Rate LLC shall have delivered to First Rate (Delaware) supporting documents in form and substance satisfactory to First Rate (Delaware) to the effect that:
| (i) | First Rate LLC is a corporation duly organized, validly existing, and in good standing. |
(ii) First Rate LLC's authorized and issued capital stock is as set forth herein.
(iii) The execution and consummation of this Agreement have been duly authorized and approved by First Rate LLC's board of directors.
22. Designation of Agent for Service
As of the Merger Date, the Surviving Corporation hereby irrevocably appoints the Secretary of the State of Delaware, if required, as its attorney to accept service of process in any action, suit, or proceeding for the enforcement of any obligations of First Rate LLC for which the Surviving Corporation is liable under the California Corporations Code or this Agreement.
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23. Access
From the date hereof to the Merger Date, First Rate (Delaware) and First Rate LLC shall provide each other with such information and permit each other's officers and representatives such access to its properties and books and records as the other may from time to time reasonably request. If the merger is not consummated, all documents received in connection with this Agreement shall be returned to the party furnishing such documents, and all information so received shall be treated as confidential.
24. Closing The Closing contemplated herein shall be held on November 9, 2012 or such other date as the parties shall agree, at the principal offices of First Rate (Delaware), unless another place or time is agreed upon in writing by the parties without requiring the meeting of the parties hereof. All proceedings to be taken and all documents to be executed at the Closing shall be deemed to have been taken, delivered and executed simultaneously, and no proceeding shall be deemed taken nor documents deemed executed or delivered until all have been taken, delivered and executed. The date of Closing may be accelerated or extended by agreement of the parties.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission required by this Agreement or any signature required thereon may be used in lieu of an original writing or transmission or signature for any and all purposes for which the original could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission or original signature.
25. Indemnification
25.1. Indemnification of First Rate (Delaware). First Rate LLC agrees to indemnify First Rate (Delaware) against any loss, damage, or expense (including reasonable attorney fees) suffered by First Rate (Delaware) from (1) any breach by First Rate LLC or the Members of this Agreement or (2) any inaccuracy in or breach of any of the representations, warranties, or covenants by First Rate LLC or the Members herein; provided, however, that (a) First Rate (Delaware) shall be entitled to assert rights of indemnification hereunder only if and to the extent that it suffers losses, damages, and expenses (including reasonable attorney fees) exceeding $50,000 in the aggregate and (b) First Rate (Delaware) shall give notice of any claims hereunder within twenty-four months beginning on the date of the Closing. No loss, damage, or expense shall be deemed to have been sustained by First Rate (Delaware) to the extent of insurance proceeds paid to, or tax benefits realizable by, First Rate (Delaware) as a result of the event giving rise to such right to indemnification.
25.2. Proportionate Liability. The liability of each Member under this Section shall be in the proportion that the total number of First Rate (Delaware) shares to be received by him bears to the total number of First Rate (Delaware) shares to be received by all the Members. With respect to Members that are estates, trusts, or custodianships, the executor, trustee, or custodian is a party to this Agreement only in its fiduciary capacity and liability hereunder shall be limited to the fiduciary assets and shall not extend to the assets of the executor, trustee, or custodian.
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25.3. Indemnification of First Rate LLC and the Members. First Rate (Delaware) agrees to indemnify First Rate LLC and the Members against any loss, damage, or expense (including reasonable attorney fees) suffered by First Rate LLC or by any of the Members from (1) any breach by First Rate (Delaware) of this Agreement or (2) any inaccuracy in or breach of any of First Rate (Delaware) 's representations, warranties, or covenants herein.
25.4. Defense of Claims. Upon obtaining knowledge thereof, the indemnified party shall promptly notify the indemnifying party of any claim which has given or could give rise to a right of indemnification under this Agreement. If the right of indemnification relates to a claim asserted by a third party against the indemnified party, the indemnifying party shall have the right to employ counsel acceptable to the indemnified party to cooperate in the defense of any such claim. As long as the indemnifying party is defending any such claim in good faith, the indemnified party will not settle such claim. If the indemnifying party does not elect to defend any such claim, the indemnified party shall have no obligation to do so.
26. Members’ Representative. The Members hereby irrevocably designate and appoint Devon Galpin as their agent and attorney in fact ("Members' Representative") with full power and authority until the Closing to execute, deliver, and receive on their behalf all notices, requests, and other communications hereunder; to fix and alter on their behalf the date, time, and place of the Closing; to waive, amend, or modify any provisions of this Agreement, and to take such other action on their behalf in connection with this Agreement, the Closing, and the transactions contemplated hereby as such agent or agents deem appropriate; provided, however, that no such waiver, amendment, or modification may be made if it would decrease the number of shares to be issued to the Members hereunder or increase the extent of their obligation to indemnify First Rate (Delaware) hereunder.
27. Survival of Representations and Warranties. The representations and warranties of First Rate LLC, the Members and First Rate (Delaware) set out herein shall survive the Closing.
28. Arbitration
The parties hereby agree that any and all claims (except only for requests for injunctive or other equitable relief) whether existing now, in the past or in the future as to which the parties or any affiliates may be adverse parties, and whether arising out of this agreement or from any other cause, will be resolved by arbitration before the American Arbitration Association.
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29. General Provisions
29.1. Further Assurances. From time to time, each party will execute such additional instruments and take such actions as may be reasonably required to carry out the intent and purposes of this Agreement.
29.2. Waiver. Any failure on the part of either party hereto to comply with any of its obligations, agreements, or conditions hereunder may be waived in writing by the party to whom such compliance is owed.
29.3. Brokers. Each party agrees to indemnify and hold harmless the other party against any fee, loss, or expense arising out of claims by brokers or finders employed or alleged to have been employed by the indemnifying party.
29.4. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been given if delivered in person or sent by prepaid First Rate LLC-class certified mail, return receipt requested, or recognized commercial courier service, as follows:
If to First Rate (Delaware), to:
First Rate Staffing Corporation
2775 West Thomas Road
Suite 107
Phoenix, Arizona 85018
If to First Rate LLC, to
30. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware.
31. Assignment. This Agreement shall inure to the benefit of, and be binding upon, the parties hereto and their successors and assigns; provided, however, that any assignment by either party of its rights under this Agreement without the written consent of the other party shall be void.
32. Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures sent by facsimile transmission shall be deemed to be evidence of the original execution thereof.
33. Effective Date. This effective date of this Agreement shall be November 9, 2012.
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IN WITNESS WHEREOF, the parties have executed this Agreement.
| FIRST RATE STAFFING CORPORATION | ||
| By | /s/ Cliff Blake | |
| FIRST RATE STAFFING LLC | ||
| By | /s/ Devon Galpin | |
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Exhibit A
| Percentage of | Number of | |||||
| First Rate Staffing | First Rate | Taxpaye | ||||
| LLC Interest | Staffing Corporation | Name of | Address | |||
| To Be | Shares To Be | Member | ID No. | |||
| Transferred | Received | |||||
| 25% | 500,000 | Devon Galpin | ||||
| 25% | 500,000 | Julie Galpin | ||||
| 25% | 500,000 | Joy Mautz | ||||
| 25% | 500,000 | Mike Mautz |
