EXHIBIT 2.5
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT dated as of September 27, 2002, is made
by and among Pacific Rocky Mountain, Inc., a Florida corporation located at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx X, Xxxxxxxxxx, XX 00000 ("Seller"), and The Tantivy
Group, Inc., a Nevada corporation located at 00000 Xxxxx 00xx Xxxxxx, Xxxxxxx,
XX 00000 ("Buyer"). Buyer and Seller are sometimes referred to herein
collectively as the "Parties."
RECITALS
WHEREAS, Seller is engaged in the development of various mining claims,
and has, during the course of such activity, developed and accumulated certain
properties of both a tangible and intangible nature (the "Assets");
WHEREAS, Seller desires to sell, convey, transfer, assign and deliver
all of Seller's right, title and interest in and to Seller's Assets to Buyer;
and
WHEREAS, Buyer desires to acquire such Assets from the Seller, all in
accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, and the
respective representations, warranties, covenants and agreements set forth
herein, and intending to be legally bound hereby, the Parties agree as follows:
SECTION ONE: DEFINED TERMS
--------------------------
1.1 DEFINED TERMS: As used in this Agreement, and unless the context
otherwise requires, capitalized terms shall have the meanings set forth
below.
(a) "ACTION" shall mean any action, suit, or legal, administrative or
arbitral proceeding by or before any Governmental Authority.
(b) "AGREEMENT" shall mean this Agreement and all Schedules and
Exhibits hereto, as the same may from time to time be amended.
(c) "CLOSING" shall have the meaning set forth in Section 3.1.
(d) "CLOSING DATE" shall mean the date on which the Closing actually
takes place.
(e) "COMMON STOCK" shall mean Buyer's common stock, par value $.001
per share.
(f) "CONSENT" shall mean any consent, approval or authorization of,
notice to, or designation, registration, declaration or filing
with, any Person.
(g) "GOVERNMENTAL AUTHORITY" shall mean any federal, state, local or
foreign government or any subdivision, agency, instrumentality,
authority, department, commission, board or bureau thereof or any
federal, state, local or foreign court or tribunal.
(h) "INTELLECTUAL PROPERTY" shall mean: (a) all inventions (whether
patentable or unpatentable and whether or not reduced to
practice), all rights to research and development, all
innovations, all improvements thereto, and all patents, patent
applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions,
extensions, and reexaminations thereof; (b) all trademarks,
service marks, trade dress, logos, trade names and corporate
names, together with all translations, adaptations, derivations,
and combinations thereof and including all goodwill associated
therewith, and all applications, registrations, and renewals in
connection therewith; (c) all copyrightable works (including, but
not limited to, training materials and instruction manuals), all
copyrights, and all applications, registrations, and renewals in
connection therewith; (d) all mask works and all applications,
registrations, and renewals in connection therewith; (e) all trade
secrets and confidential business information (including ideas,
research and development, know-how, formulae, compositions,
manufacturing and production processes and techniques, technical
data, designs, drawings, specifications, customer and supplier
lists, pricing and cost information, and business and marketing
plans and proposals); (f) all computer software (including data
and related documentation); (g) all other proprietary rights
relative to any of the foregoing; and (h) all copies and tangible
embodiments thereof (in whatever form or medium).
(i) "LIEN" shall mean any mortgage, pledge, hypothecation, lien,
security interest, financing statement, charge or other similar
encumbrance.
(j) "ORDER" shall mean any judgment, award, order, writ, injunction or
decree issued by any Governmental Authority or by any arbitrator.
(k) "PERMITS" shall mean all permits, licenses, approvals, franchises,
notices, certifications or other authorizations or consents issued
by any Governmental Authority.
(l) "PERSON" shall mean any individual, partnership, joint venture,
association, limited liability company, corporation, trust,
unincorporated organization, Governmental Authority, or other
entity.
SECTION 2. PURCHASE AND SALE OF ASSETS
--------------------------------------
2.1 ASSETS TO BE PURCHASED BY BUYER. Upon the terms and conditions of this
Agreement, at the Closing, Seller shall sell, convey, transfer, assign
and deliver to Buyer, and Buyer shall purchase from Seller, all of
Seller's right, title and interest in and to all of the Assets of
record owned by Seller as of this date which includes the "J & J" and
the "Xxxxx" assets. (the "Assets"):
2.2 ASSUMPTION OF LIABILITIES. It is understood and agreed that the Buyer
will assume all liabilities, of any nature and description, that may be
associated with the Assets, and that Buyer shall assume any and
liabilities and obligations of Seller.
2.3 PURCHASE PRICE. In consideration of the sale, conveyance, transfer and
assignment of the Assets, and in reliance upon the representations,
warranties and undertakings herein made by and of Seller, Buyer shall
(a) deliver to Seller or its designees at Closing (i) Fifty Million
(50,000,000) shares of Buyer's $.001 par value common stock.
SECTION 3. THE CLOSING
----------------------
3.1 TIME AND PLACE OF CLOSING. Subject to the satisfaction or waiver of the
conditions precedent set forth in Section 7, the closing of the
purchase and sale referred to in Section 2 (the "Closing") shall take
place September 27, 2002 by facsimile with faxed signatures having the
same effect as originals. The Effective Date and time of the Closing
shall be 12:01 a.m., Eastern Standard Time, on the Closing Date (the
"Effective Date").
3.2 DELIVERIES AT CLOSING. At the Closing, to the extent the parties have
not previously delivered the following items, Seller and Buyer shall
deliver the following items to each other in a form satisfactory to
each other:
(a) Seller shall execute and deliver to Buyer such bills of sale,
certificates of title, endorsements, assignments and other
instruments of conveyance, in each case in such form as may be
reasonably satisfactory to Buyer, as shall be sufficient to vest
in Buyer good and marketable title to and deliver to Buyer each of
the Assets, free and clear of all Liens and other encumbrances
whatsoever except those being assumed by Buyers; and
(b) Buyer shall deliver to Seller the Purchase Price, in certificate
form as set forth above. When so delivered, the Buyer's common
stock shall be fully paid and non-assessable.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER
---------------------------------------------------
4.1 ORGANIZATION AND GOOD STANDING. Seller is a corporation duly formed,
validly existing and in good standing under the laws of the State of
Florida. Seller has full power and authority to own, operate and lease
its properties and assets and to carry on its business as now being
conducted.
4.2 AUTHORIZATION. Seller has full power, authority and legal right to
execute and deliver, and perform its obligations under, this Agreement
and to consummate the transactions contemplated by this Agreement, and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly executed by
Seller and constitutes a legal, valid and binding obligation of Seller,
as the case may be, enforceable against Seller in accordance with its
terms.
4.3 COMPLIANCE WITH LAWS AND VALIDITY OF CONTEMPLATED TRANSACTIONS. Seller
is in compliance with all laws applicable to it or the operation,
ownership and use of the Assets. Neither the execution, delivery and
performance of this Agreement nor the consummation of the transactions
contemplated hereby will (a) conflict with or result in any violation
of or constitute a default under any term of the Articles of
Incorporation or Bylaws of Seller, (b) conflict with or result in any
violation of or constitute a default under any Law or Contract which is
applicable to Seller or by which Seller is bound or to which any of its
properties or assets are subject, or (c) result in the creation or
imposition of any Lien on any of the acquired Assets.
4.4 TITLE TO AND CONDITION OF ACQUIRED ASSETS AND PROPERTY. All items of
personal property to be transferred hereunder are in satisfactory
operating condition, normal wear and tear excepted. Seller has good,
valid and marketable title to, or valid and enforceable leasehold
interests in, as the case may be, all of the acquired Assets, free and
clear of all Liens or other encumbrances or defects in title other than
Permitted Encumbrances, and Seller has the complete and unrestricted
power and unqualified right to sell, convey, assign, transfer and
deliver the acquired Assets to Buyer and to vest in Buyer good title to
the acquired Assets.
4.5 CONSENTS. No Consent of or with any Governmental Authority or any third
party is required to be obtained, satisfied or made pursuant to any
Laws or Contracts by or with respect to Seller in connection with the
execution and delivery of this Agreement by Seller or the performance
by Seller of the transactions contemplated by this Agreement.
4.6 LITIGATION. There exists (a) no Action or investigation pending or, to
the best of Seller's knowledge, threatened against any of the acquired
Assets, or against Seller in any way related to the Assets, or against
the transactions contemplated by this Agreement, or (b) to Seller's
knowledge, no event, fact or circumstance which could reasonably be
expected to give rise to any such Action or investigation, or (c) no
outstanding Order of any Governmental Authority or arbitrator against
Seller in any way related to the Business or affecting any of the
acquired Assets.
4.7 INTELLECTUAL PROPERTY. As to those Intellectual Property Assets being
transferred to Buyer pursuant to this Agreement, Seller owns (or
possesses adequate and enforceable rights to use without payment of
royalties) all Intellectual Property to be transferred to Seller as
Assets, and such Intellectual Property will be owned or available for
use by Buyer on identical terms and conditions immediately subsequent
to the Closing. Each of Seller's employees has executed a
confidentiality agreement with respect to Seller's Confidential
Information.
(a) There are no claims of patent, trade name, trademark, or copyright
infringement, or of misappropriation or misuse of the trade
secrets, know-how or confidential information of any Person,
pending or threatened against Seller and relating to the Assets
and there are no facts or circumstances which could reasonably be
anticipated to result in any such claim. To Seller's knowledge, no
Person is infringing any of Seller's rights to the Intellectual
Property.
4.8 DISCLOSURES. Neither this Agreement nor any certificate, document,
written statement or other instrument furnished to Buyer by or on
behalf of Seller pursuant to this Agreement, contains any untrue
statement of material fact or omits any material fact necessary in
order to make the statements contained herein or therein not
misleading. Any documents furnished to Buyer by or on behalf of Seller
are, in all material respects, true, correct and complete copies
thereof and there have been no amendments or modifications thereto
except as otherwise set forth on such documents. To Seller's knowledge,
Seller has disclosed to Buyer in writing any fact, occurrence, or
circumstance that could reasonably be anticipated to have a material
adverse effect on the acquired Assets.
4.9 BROKERS. No broker or finder has acted for Seller in connection with
the transactions contemplated by this Agreement, and no broker or
finder is entitled to any broker's or finder's fee or other commission
in respect thereof based in any way on agreements, understandings or
arrangements with Seller.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF BUYER
--------------------------------------------------
5.1 ORGANIZATION AND GOOD STANDING. Buyer is a corporation duly formed,
validly existing and in good standing under the laws of the State of
Nevada and has full power and authority and legal right to own, operate
and lease its properties and assets and to carry on its business as now
being conducted.
5.2 AUTHORITY. Buyer has full power, authority and legal right to execute
and deliver, and to perform its obligations under, this Agreement and
to consummate the transactions contemplated by this Agreement, and has
taken all necessary action to authorize the transactions contemplated
hereby on the terms and conditions of this Agreement and to authorize
the execution, delivery and performance of this Agreement. This
Agreement has been duly executed by Buyer and constitutes a legal,
valid and binding obligation of Buyer enforceable against Buyer in
accordance with its terms.
5.3 COMPLIANCE WITH LAWS AND VALIDITY OF CONTEMPLATED TRANSACTIONS. Neither
the execution, delivery and performance of this Agreement nor the
consummation of the transactions contemplated hereby will (a) conflict
with or result in a breach of the Articles of Incorporation or Bylaws
of Buyer, (b) conflict with or result in any violation of or constitute
a default under any Law which is applicable to Buyer or by which Buyer
is bound or to which any of its properties or assets are subject, or
(c) result in the creation or imposition of any Lien upon or with
respect to any material property now owned by Buyer.
5.4 BROKERS. No broker or finder has acted for Buyer in connection with the
transactions contemplated by this Agreement, and no broker or finder is
entitled to any broker's or finder's fee or other commission in respect
thereof based in any way on agreements, understandings or arrangements
with Buyer.
SECTION 6. ADDITIONAL DUTIES OF BUYER AND SELLER
------------------------------------------------
6.1 COVENANTS OF SELLER.
(a) EXECUTION OF FURTHER DOCUMENTS. From and after the Closing, upon
the reasonable request of Buyer, Seller shall, at its expense,
execute, acknowledge and deliver all such further acts, deeds,
bills of sale, endorsements, adjustments, assignments, transfers,
conveyances, powers of attorney and assurances as may reasonably
be required to convey and transfer to and vest in Buyer and
protect its right, title and interest in all of the acquired
Assets, and as may otherwise be appropriate to carry out the
transactions contemplated by this Agreement.
(b) CONFIDENTIALITY. Seller acknowledges and agrees that by reason of
its ownership of the acquired Assets, Seller's officers,
directors, and employees have had access to and become informed of
"Confidential Information" the disclosure of which would be
harmful to the interests of Buyer as the owner and operator of the
Assets after the Closing. As used in this Agreement, "Confidential
Information" shall mean information related to the Assets (i)
which derives economic value, actual or potential, from not being
generally known to, or readily ascertainable by proper means by,
other Persons who can obtain economic value from its disclosure or
use, and (ii) which is the subject of efforts that are reasonable
under the circumstances to maintain its secrecy. At or promptly
after the Closing, Seller shall deliver to Buyer any Confidential
Information which is in its possession, custody or control
(excluding the normal business, accounting and tax records of
Seller which may be retained by Seller).
6.2 COVENANTS OF BUYER.
(a) EMPLOYEE MATTERS. Buyer shall have the right (but not the
obligation) to offer employment from and after the Closing Date to
certain employees of the Seller who are employed in the operation
of the Assets on the Closing Date (the "Hired Employees") on such
terms and conditions as Buyer may, in its sole discretion,
determine.
(b) COOPERATION. Buyer shall use all reasonable efforts to cause the
transactions contemplated by this Agreement to be consummated,
and, without limiting the generality of the foregoing, to cause
all of the conditions to Seller's obligations under this Agreement
within the direct or indirect control of Buyer to be satisfied
prior to the Closing Date. Buyer shall not take any action or
omit, to take any action, which would prevent the conditions to
Seller's obligations under this Agreement to be satisfied prior to
the Closing Date.
SECTION 7. CONDITIONS TO CLOSING
--------------------------------
7.1 CONDITIONS TO SELLER'S OBLIGATIONS. The obligations of Seller to
consummate the transactions contemplated by this Agreement shall be
subject to the fulfillment, at or prior to the Closing, of each of the
following conditions (any of which may be waived by Seller in writing):
(a) REPRESENTATIONS AND WARRANTIES OF BUYER. The representations and
warranties of Buyer shall be true, correct and complete, in all
material respects, except as affected by transactions expressly
contemplated or permitted by this Agreement;
(b) COVENANTS OF BUYER. Buyer shall have performed, in all material
respects, all of its obligations and agreements and complied, in
all material respects, with all of its covenants contained in this
Agreement to be performed and complied with by Buyer prior to or
at the Closing;
(c) NO ADVERSE ACTION. No preliminary or permanent injunction or other
Order (including a temporary restraining Order) of any
Governmental Authority which prevents the consummation of the
transactions contemplated by this Agreement shall have been issued
and remain in effect nor shall any Action seeking to restrain or
prohibit the consummation of the transactions contemplated by this
Agreement, or seeking damages in connection therewith, be pending,
nor shall any such Action be overtly threatened;
7.2 CONDITIONS TO BUYER'S OBLIGATIONS. The obligations of Buyer to effect
the transactions contemplated by this Agreement shall be subject to the
fulfillment, at or prior to the Closing, of each of the following
conditions (each of which may be waived by Buyer in writing):
(a) REPRESENTATIONS AND WARRANTIES OF SELLER. The representations and
warranties of Seller in this Agreement and the Schedules hereto
shall be true, correct and complete, in all material respects,
except as affected by transactions expressly contemplated or
permitted by this Agreement;
(b) COVENANTS OF SELLER. Seller shall have performed, in all material
respects, all of its obligations and agreements and complied, in
all material respects, with all of its covenants contained in this
Agreement to be performed and complied with by Seller prior to or
at the Closing;
(c) NO MATERIAL ADVERSE CHANGE. There shall not have been any material
adverse change in the acquired Assets since the date of the
execution of the Letter of Intent;
(d) NO ADVERSE ACTION. No preliminary or permanent injunction or other
Order (including a temporary restraining Order) of any
Governmental Authority which prevents the consummation of the
transactions contemplated by this Agreement shall have been issued
and remain in effect, nor shall any Action seeking to restrain or
prohibit the consummation of the transactions contemplated by this
Agreement, or seeking damages in connection therewith, be pending,
nor shall any such Action be overtly threatened;
SECTION 8. GENERAL PROVISIONS
-----------------------------
8.1 SEVERABILITY. If any provision of this Agreement or the application of
any such provision to any party or circumstances shall be determined by
any court of competent jurisdiction to be invalid and unenforceable to
any extent, the remainder of this Agreement, or the application of such
provision to such Person or circumstance other than those to which it
is so determined to be invalid and unenforceable, shall not be affected
thereby and shall be enforceable to the fullest extent permitted by
law, and in substitution for such invalid or unenforceable provision
there shall be substituted a provision of similar import reflecting the
original intent of the parties hereto to the extent permissible under
Law.
8.2 NO WAIVER: No delay or omission to exercise any right, power, or remedy
accruing to a party on any breach or default of the other party under
the terms of this Agreement shall impair any such right, power, or
remedy of the non-defaulting party, nor shall it be construed to be a
waiver of any such breach or default, or an acquiescence in such breach
or default, or waiver of or acquiescence in any similar breach or
default occurring later; nor shall any waiver of any single breach or
default be considered a waiver of any other prior or subsequent breach
or default.
8.3 NOTICES. Any notice or other communication required or permitted to be
given under the terms of this Agreement shall be mailed, telecopied or
delivered to the other party at the address shown below and shall be
effective and deemed received (i) if mailed, three (3) days after
placement in the United States mail postage prepaid, by registered or
certified mail, return receipt requested, (ii) if telecopied, when
received; (iii) if via overnight mail, on the day delivered, or (iii)
if personally delivered, when delivered to either Buyer or Seller at
their respective addresses as set forth above.
8.4 APPLICABLE LAW. This Agreement shall be governed and construed and
interpreted in accordance with the internal substantive laws of the
State of Florida.
8.5 PUBLICITY. The Parties agree that no publicity release or announcement
concerning the transactions contemplated hereby shall be issued by any
party without the advance written consent of the others, except as such
release or announcement may be required by Law, in which case the party
making the release or announcement shall show such release or
announcement in advance to the other Parties.
8.6 ASSIGNMENT. This Agreement shall inure to the benefit of and be binding
upon the Parties hereto and their respective successors and assigns.
Notwithstanding the foregoing, this Agreement and the Parties' rights
and obligations under this Agreement shall not be assigned by a party
to another Person without the prior written consent of the other
Parties; provided, however, that Buyer shall be entitled to assign its
rights and benefits under this Agreement to any of its Affiliates or to
any Person that acquires the Acquired Assets or the Business whether by
means of any asset sale, merger or otherwise.
8.7 ENTIRE AGREEMENT. This Agreement, together with the Schedules and
Exhibits attached hereto and the certificates delivered in connection
herewith, embodies the entire agreement and understanding of the
Parties hereto and supersedes any prior agreement or understanding
between the Parties with respect to the subject matter of this
Agreement. This Agreement cannot be amended or terminated orally, but
only by a writing duly executed by the Parties.
8.8 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same document.
8.9 NO THIRD-PARTY BENEFICIARIES. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their
respective successors and permitted assigns.
IN WITNESS WHEREOF, the parties have executed this Asset Purchase Agreement as
of the date first above written.
THE TANTIVY GROUP, INC. PACIFIC ROCKY MOUNTAIN, INC.
BY: s/s Xxxxx X. Xxxxxx BY: S/S Xxxxx Xxxxx
----------------------------- --------------------------------
NAME: Xxxxx X. Xxxxxx NAME: Xxxxx Xxxxx
TITLE: President TITLE: Chief Executive Officer
DATE: September 27, 2002 DATE: September 27, 2002
