Exhibit 10.23 


 


CAPITAL CONTRIBUTION AGREEMENT


 


THIS CAPITAL CONTRIBUTION
AGREEMENT (this “Agreement”) is made as of the 3rd day of December, 2012, by and among TAGLICH PRIVATE
EQUITY, LLC, a Delaware limited liability company (“Obligor”), LTN STAFFING, LLC, a Delaware limited liability
company (“LTN Staffing”), BG STAFFING, LLC, a Delaware limited liability company (“BG Staffing”),
BG PERSONNEL SERVICES, LP, a Texas limited partnership (“BG Personnel Services”), BG PERSONNEL, LP, a Texas
limited partnership (“BG Personnel”), and B G STAFF SERVICES INC., a Texas corporation (“B G Staff
Services”, and together with LTN Staffing, BG Staffing, BG Personnel Services and BG Personnel, collectively, “Borrowers”
and each a “Borrower”), and FIFTH THIRD BANK, an Ohio banking corporation, successor by merger with Fifth Third
Bank, a Michigan banking corporation (together with its successors and assigns, hereinafter referred to as “Lender”).


 


WITNESSETH:


 


WHEREAS, Borrowers
and Lender are parties to that certain Loan and Security Agreement dated as of May 24, 2010, as amended from time to time (as restated,
modified or supplemented and in effect from time to time, the “Loan Agreement”), pursuant to which Lender has
made or may from time to time hereafter make loans and advances to or extend other financial accommodations to Borrowers;


 


WHEREAS, Obligor is
the direct or indirect principal owner of Borrowers and has a direct and substantial financial interest in Borrowers, and thus
is desirous of having Lender extend and/or continue the extension of credit to Borrowers;


 


WHEREAS, Borrowers
have requested that Lender increase the amounts of credit it makes available to Borrowers and make certain other changes to the
terms and conditions of the Loan Agreement and the other Loan Documents (as defined in the Loan Agreement); and


 


WHEREAS, Lender is
willing to accommodate such requests of Borrowers, on and subject to the terms and conditions of that certain Sixth Amendment to
Loan and Security Agreement and Other Loan Documents dated as of the date hereof among Lender and Borrowers (the “Sixth
Amendment”); and


 


WHEREAS, among other
things, Obligor’s entering into this Agreement is a condition to Lender’s obligations under the Sixth Amendment and
the other Loan Documents as amended thereby;


 


NOW, THEREFORE, in
consideration of foregoing recitals, which are incorporated herein by this reference thereto, the mutual agreements contained herein,
and other good and valuable consideration, Obligor and Lender agree as follows:


 


1.           Defined
Terms. Terms that are capitalized but which are not defined herein and are defined in the Loan Agreement shall have the meanings
ascribed to such terms in the Loan Agreement. In addition, the following terms shall have the meanings indicated:


 




    	 



    	 



    

 


“API”
shall mean American Partners, Inc., a Rhode Island corporation.


 


“API
Earn Out Payments” shall mean those payments made or required to be made by BG Staffing pursuant to Section 1.6 of the
API Purchase Agreement.


 


“API
Purchase Agreement” shall mean that certain Asset Purchase Agreement dated as of December 3, 2012 by and among BG Staffing,
API and Thomas Leonard, Justin Franks and Ronald Wnek.


 


“API
Purchase Transaction” shall mean the purchase by BG Staffing of certain of the assets of and the assumption by BG Staffing
of certain liabilities of API pursuant to the terms of the API Purchase Agreement.


 


2.           Obligor’s
Capital Contributions Obligations.


 


(a)          Borrowers
have informed Lender that BG Staffing intends to acquire substantially all of the assets and business of API pursuant to the API
Purchase Transaction and Borrowers have requested that Lender consent to such actions. In connection with the API Purchase Transaction,
BG Staffing will enter into the API Purchase Agreement and become obligated to pay the API Earn Out Payments, on and subject to
the terms and conditions of the API Purchase Agreement. Borrowers acknowledge, however, that the API Earn Out Payments will not
be subordinated to Borrowers’ Debt to Lender. Accordingly, Lender is only willing to consent to the API Purchase Transaction
on the condition that Borrowers agree that no API Earn Out Payment shall be paid if, when such payment is due, an Event of Default
then exists or would occur as a result of the payment thereof, except if such payment is funded by capital contributions from Obligor
and/or arranged by Obligor to be contributed by other persons and entities.


 


(b)          Accordingly,
and in consideration of Lender’s entering into the Sixth Amendment, Borrowers and Obligor hereby agree that, when any API
Earn Out payment shall become due, if there then exists an Event of Default under the Loan Agreement, or an Event of Default would
occur as a result of the payment of such API Earn Out Payment by BG Staffing or any other Borrower, then, unless otherwise agreed
by Borrowers and Lender, neither BG Staffing nor any other Borrower shall make any such payment or payments unless (i) Borrowers
and Obligor agree that such payments should be made, and then only if Obligor agrees to promptly facilitate the investment of additional
capital into BG Staffing in an amount equal to the amount of the API Earn Out Payment which is due, and (ii) and such amount of
additional capital is actually received by BG Staffing before or concurrently with making such payment.


 


(c)          BG
Staffing agrees that it will notify Lender and Obligor in writing, not less than ten (10) Business Days prior to the date upon
which any API Earn Out Payment is to become due, of the amount which is expected to be payable in respect thereof and the date
upon which such payment is to be made. In addition, such notice shall state whether any Event of Default exists or is expected
to occur as a result of making such payment. In the event that such notice states that an Event of Default then exists or is expected
to arise as a result of such payment, then such notice shall also constitute a demand by BG Staffing to Obligor for a contribution
of the required amount of additional capital on or before the date specified as the date upon which payment of the applicable API
Earn Out Payment will be due.


 




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(d)          Any
capital contributions required to be made by Obligor pursuant to the requirements of this Agreement shall be provided to BG Staffing
not later than the Business Day prior to the date upon which the corresponding API Earn Out Payment is due. Proceeds of any such
capital contributions shall be contributed by Obligor directly to BG Staffing unless otherwise agreed by Lender and such capital
contribution shall otherwise be on terms reasonably acceptable to Lender.


 


(e)          BG
Staffing and Obligor shall jointly notify Lender in writing of funding of any capital contribution promptly (and in any event on
the same day) upon the occurrence thereof.


 


3.           Event
of Default; Lender’s Enforcement Rights. Borrowers and Obligor acknowledge and agree that failure by Obligor to comply
with any of the requirements of this Agreement, including, without limitation, to promptly make any capital contribution payment
required to be made by it pursuant to Section 2 hereof, in addition to being a breach of this Agreement by Obligor shall be an
immediate Event of Default under the Loan Documents. In addition, Obligor expressly agrees and acknowledges that its undertakings
under this Agreement are for the direct benefit of Lender and that Lender shall be entitled to enforce this Agreement against Obligor,
and shall be entitled to seek specific performance of such obligations, or otherwise exercise any and all remedies provided at
law or in equity.


 


4.           Reinstatement.
The obligations of Obligor hereunder shall continue to be effective or automatically be reinstated, as the case may be, if at any
time payment of any amount by Obligor pursuant to this Agreement is rescinded or otherwise must be restored or returned by any
of Borrowers upon the insolvency, bankruptcy or reorganization of Obligor, or otherwise, all as though such payment had not been
made.


 


5.           Successors
and Assigns. This Agreement shall inure to the benefit of Lender, and its successors and assigns. This Agreement shall be binding
on Obligor and its successors and assigns and its estates, and shall continue in full force and effect until all of Borrowers’
obligations and liabilities to Lender are indefeasibly paid and performed in full and the Loan Agreement is terminated.


 


6.           No
Waiver of Rights. No delay or failure on the part of Lender to exercise any right, power or privilege under this Agreement,
or any of the other Loan Documents shall operate as a waiver thereof, and no single or partial exercise of any right, power or
privilege shall preclude any other or further exercise thereof or the exercise of any other power or right, or be deemed to establish
a custom or course of dealing or performance between the parties hereto. The rights and remedies herein provided are cumulative
and not exclusive to any rights or remedies provided by law. No notice to or demand on Obligor in any case shall entitle Obligor
to any other or further notice or demand in the same, similar or other circumstance.


 


7.           Modification.
The terms of this Agreement may be waived, discharged, or terminated only by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought. No amendment, modification, waiver or other change
of any of the terms of this Agreement shall be effective without the prior written consent of Lender.


 




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8.           Costs
and Expenses. Obligor agrees to pay on demand all costs and expenses incurred by or on behalf of Lender (including, without
limitation, attorneys’ fees and expenses) in enforcing the obligations of Obligor under this Agreement.


 


9.           Severability.
Whenever possible, each provision hereof will be interpreted in such manner as to be effective and valid under applicable law,
but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such provision will be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability
without invalidating the remainder of such invalid, illegal or unenforceable provision or provisions or any other provisions hereof,
unless such a construction would be unreasonable. Upon any such determination that any term or other provision hereof is invalid,
illegal or unenforceable, the parties hereto 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 extent possible in the circumstances.


 


10.          Notices.
Unless otherwise specifically provided herein, any notice or other communication required or permitted to be given shall be in
writing addressed to the respective party as set forth below and may be personally served, telecopied, telexed or sent by overnight
courier service or United States mail and shall be deemed to have been given, (a) if delivered in person, when delivered: (b) if
delivered by telecopy or telex, on the date of transmission if transmitted on a Business Day before 4:00 p.m. (Chicago time) or,
if not, on the next succeeding Business Day; (c) if delivered by overnight courier, one day after delivery to such courier properly
addressed; or (d) if by U.S. Mail, four Business Days after depositing in the United States mail with postage prepaid and properly
addressed. Notices shall be addressed as follows:


 


	If to Obligor:	 	Taglich Private Equity, LLC
	 	 	275 Madison Avenue
	 	 	New York, NY 10016
	 	 	Attn: Douglas E. Hailey
	 	 	Fax: (212) 661-6826
	 	 	 
	If to Borrowers:	 	LTN Staffing, LLC
	 	 	BG Staffing, LLC
	 	 	BG Personnel Services, LP
	 	 	BG Personnel, LP
	 	 	B G Staff Services Inc.
	 	 	14900 Landmark Blvd., Suite 300
	 	 	Dallas, TX 75254
	 	 	Attn: L. Allen Baker, Jr.
	 	 	Fax: (972) 692-2444
	 	 	 
	 	 	 
	If to Lender:	 	Fifth Third Bank
	 	 	222 South Riverside Plaza, 32nd Floor
	 	 	Chicago, IL 60606
	 	 	Attn: Ingrid Deroubaix, Vice President
	 	 	Fax: (312) 704-2980


 




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	With a copy to.	 	Dykema Gossett PLLC
	 	 	10 South Wacker Drive, Suite 2300
	 	 	Chicago, IL  60606
	 	 	Attn:  Diana Y. Tsai
	 	 	Fax: (312) 627-2302


 


or to such other address
as the party addressed shall have previously designated by written notice to the serving party, given in accordance with this Section
10. A notice not given as provided above shall, if it is in writing, be deemed given if and when actually received by the party
to whom given.


 


11.          APPLICABLE
LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.


 


12.          CONSENT
TO JURISDICTION. OBLIGOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COUNTY OF COOK,
STATE OF ILLINOIS AND IRREVOCABLY AGREES THAT, SUBJECT TO LENDER’S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH COURTS. EACH PARTY HERETO EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION
OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. OBLIGOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS
AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON SUCH PERSON BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED,
ADDRESSED TO OBLIGOR AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME
HAS BEEN POSTED.


 


13.          WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT EACH PARTY HAS RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND LENDER IS RELYING ON THIS AGREEMENT IN CONNECTION
WITH EXTENDING CREDIT TO BORROWERS, AND THAT EACH PARTY WILL CONTINUE TO RELY ON SUCH WAIVER IN ITS RELATED FUTURE DEALINGS. EACH
PARTY HERETO WARRANTS AND REPRESENTS THAT IT HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND THAT
IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.


 


14.          REPRESENTATION.
OBLIGOR ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO HAVE THE ASSISTANCE OF COUNSEL IN CONNECTION WITH THIS AGREEMENT AND HAS
EITHER CONSULTED WITH SUCH COUNSEL OR ELECTED NOT TO CONSULT.


 




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15.          Other
Interpretive Provisions. The meanings of defined terms are equally applicable to the singular and plural forms of the defined
terms. Whenever the context so requires, the neuter gender includes the masculine and feminine, the single number includes the
plural, and vice versa, and in particular the words “Borrower” and “Borrowers” shall be so construed.


 


[Remainder of page
intentionally left blank; signature pages follow]


 




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IN WITNESS WHEREOF,
the parties hereto have duly executed this Capital Contribution Agreement as of the day and year first above written.


 


	 	OBLIGOR:
	 	 
	 	TAGLICH PRIVATE EQUITY, LLC, a Delaware limited liability company
	 	 
	 	By:	 /s/ Douglas E. Hailey
	 	Name:	Douglas E. Hailey
	 	Title:	Managing Member


 


	 	BORROWERS:
	 	 
	 	LTN STAFFING, LLC, a Delaware limited liability company
	 	 	 
	 	By:	 /s/ L. Allen Baker, Jr.
	 	Name:	L. Allen Baker, Jr.
	 	Title:	President and Chief Executive Officer


 


	 	BG STAFFING, LLC, a Delaware limited liability company
	 	 
	 	By:	LTN Staffing, LLC, a Delaware limited liability company
	 	Its:	Sole Member


 


	 	By:	 /s/ L. Allen Baker, Jr.
	 	Name:	L. Allen Baker, Jr.
	 	Title:	President and Chief Executive Officer


 




    	 



    	 



    

 


	 	BG PERSONNEL SERVICES, LP, a Texas limited partnership
	 	 	 
	 	By:	BG Staffing, LLC, a Delaware limited liability company
	 	Its:	General Partner


 


	 	By:	LTN Staffing, LLC, a Delaware limited liability company
	 	Its:	Sole Member


 


	 	By:	 /s/ L. Allen Baker, Jr.
	 	Name:	L. Allen Baker, Jr.
	 	Title:	President and Chief Executive Officer


 


	 	BG PERSONNEL, LP, a Texas limited partnership
	 	 
	 	By:	BG Staffing, LLC, a Delaware limited liability company
	 	Its:	General Partner


 


	 	By:	LTN Staffing, LLC, a Delaware limited liability company
	 	Its:	Sole Member


 


	 	By:	 /s/ L. Allen Baker, Jr.
	 	Name:	L. Allen Baker, Jr.
	 	Title:	President and Chief Executive Officer


 


	 	B G STAFF SERVICES INC., a Texas corporation
	 	 
	 	By:	 /s/ L. Allen Baker, Jr.
	 	Name:	L. Allen Baker, Jr.
	 	Title:	President and Chief Executive Officer


 




    	 



    	 



    

 


	 	LENDER:
	 	 
	 	FIFTH THIRD BANK, an Ohio banking corporation, successor by merger with Fifth Third Bank, a Michigan banking corporation
	 	 	 
	 	By:	 /s/ Ingrid H. Deroubaix
	 	Name:	Ingrid H. Deroubaix
	 	Title:	Vice President