Exhibit
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement dated this 3rd day of
December, 2002 and is effective as of December 31, 2002
(hereinafter THE "AGREEMENT") is made and enter into by and among TRSG
CORPORATION, A DELAWARE CORPORATION (hereinafter THE "SELLER") and GATEWAY
DISTRIBUTORS, INC., A NEVADA CORPORATION (hereinafter THE "BUYER"). Throughout
this Agreement, the Buyer and the Seller may be referred to collectively as the
"Parties".
WITNESSETH:
WHEREAS, the Seller intends to sell to the Buyer all assets of
Seller, all as set forth in Exhibit "A", attached hereto and incorporated
herein(hereinafter THE "ASSETS");
WHEREAS, the Seller is a duly formed and validly existing corporation
in good standing under the laws of the State of Delaware; and
WHEREAS, the Buyer is a duly formed and validly existing corporation
in good standing under the laws of the State of Nevada; and
WHEREAS, Buyer wishes to purchase from the Seller and the Seller
desires to sell to the Buyer the Assets, and WHEREAS, the parties are desirous
of documenting their representations, warranties, covenants, agreements and
conditions relating to the purchase and sale of the Shares into a written
agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants, representations, agreements and warranties herein contained, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
1. RECITALS: The foregoing recitals are true and correct in all
material respects and are incorporated herein as if fully stated.
2. DEFINITION: The following terms shall have the following meanings
for the purposes of this Agreement:
2.1 "AGREEMENT" shall mean this Asset Purchase Agreement,
including all exhibits and schedules attached hereto, as may be amended from
time to time.
2.2 "CLOSING" shall mean the completion of the transactions
contemplated in this Agreement.
2.3 "CLOSING DATE" shall mean the date on which the Closing occurs or
is to occur.
2.4 "CONTRACT" shall mean any contract, lease, commitment,
understanding, sales order, purchase order, agreement, indenture, mortgage,
note, bond, instrument, plan, permit or license, whether written or verbal,
which intended or purports partnership or limited partnership, such Person's
which is a corporation, general partnership or limited partnership, such
Person's certificate or articles of incorporation and by-laws or partnership
agreement, as the case may be.
2.5 "GOVERNMENTAL AUTHORITY" shall mean the government of the
United States or any foreign country or any state or political subdivision
thereof and any entity, body or authority exercising executive, legislative ,
judicial, regulatory or administrative functions of or pertaining to government,
including the pension benefit guaranty corporation and other quasi governmental
entities established to perform such functions.
2.6 "LAW" shall mean any law, statue, regulation, ordinance, rule,
order, decree, judgment, consent decree, settlement agreement or governmental
requirement enacted, promulgated, entered into, agree or imposed by any
governmental authority.
2.7 "LIEN" shall mean any mortgage, lien (except for any lien for
taxes not yet due and payable), charge, pledge, security interest, option, lease
or sublease, claim, right of any third party or encumbrance.
2.8 "PERSON" shall mean any individual, corporation, proprietorship,
firm, partnership, limited partnership, trust, association or other entity.
2.9 "PURCHASE PRICE" shall mean the aggregate amount set forth in
this Agreement subject to the adjustment provided for in this Agreement.
2.10 "TAXES" shall mean all taxes, charges, fees, duties, levies or
other assessments, including income, gross receipts, net proceeds, ad valor,
turnover, real and personal property taxes(tangible and intangible), sales, use,
franchise, excise, value added, stamp, leasing, lease, user, transfer, fuel,
excess profits, occupational, windfall profits, interest equalization,
severance, employees' income withholding, unemployment and social security taxes
and other withholding taxes, which are imposed by any governmental authority,
and such terms shall include any interest, penalties or additions to tax
attributable thereto.
3. SALE AND PURCHASE OF ASSETS: The Seller hereby agrees to sell to
the Buyer and the Buyer shall purchase and acquire from the Seller all of the
described Assets of the Seller as set forth in Exhibit "A" (the "Assets").
4. PURCHASE PRICE AND METHOD OF PAYMENT: The Purchase Price for the
Assets shall consist of the following:
(a) All debt of the Seller is as set forth in the balance sheet as of
the Closing Date (attached hereto as Exhibit "B") shall be assumed
and shall be the sole obligation of the Buyer, except as follows:
(i) Promissory Note of the Company to Feng Shui Consulting, Inc.
dated December 31, 2001, in the face value of $175,000.00, a true
and correct copy of which is attached hereto as Exhibit "C" and
incorporated herein;
(ii) Promissory Note of the Company to Xxxxxx Consulting Group,
Inc. dated December 31, 2001, in the face value of $175,000.00, a
true and correct copy of which is attached hereto as Exhibit "D"
and incorporated herein;
(iii) $200,000.00 in aged debt to be selected by the Seller from
the Exhibit "B" balance sheet of the Company.
(iv) Buyer shall indemnify and hold the Seller harmless from all
claims of creditors of Seller with respect to all debts of Seller
assumed by Buyer pursuant to this Agreement.
(b) The closing of the sale shall take place at the offices of
Seller. At the closing, Seller shall deliver to buyer such deeds,
bills of sale, assignments, and other instruments of transfer as may
be necessary to vest in buyer good and marketable title to the
property and assets sold under this Agreement. Seller shall do such
additional acts and provide such additional documents as is necessary
for compliance with statutory requirements pertaining to bulk sales
or certificates of disposition of corporate assets sold. At closing,
Buyer shall execute such documents as is necessary to assume the
identified debt of Seller as final consideration for Buyer's
obligations hereunder. All documents and papers to which the parties
are entitled under this agreement, unless otherwise specified in this
agreement, shall also be delivered at the closing.
5. REPRESENTATIONS AND WARRANTIES OF SELLER AND BUYER: The Seller
represents and warrants to the Buyer, as of the date of this Agreement and as of
the Closing Date (as if such representations and warranties were remade on the
Closing Date). As follows:
5.1 The Seller is a corporation duly organized, validly existing and
in good standing under the laws of Delaware, with all requisite power and
authority to own, lease and operate its businesses as it now being owned,
operated and conducted. The Seller is licensed or qualified to do business and
is in good standing as a foreign corporation authorized to do business in Nevada
and in each jurisdiction where the nature of the properties owned, leased or
operated by it and the business where the nature of the properties owned, leased
or operated by it in and the business transacted by it requires such licensing
or qualification. The Seller has no direct or indirect Subsidiaries, either
wholly or partially owned, and the Seller does not hold any economic, voting or
management interest in any Person or own any security issued by any Person.
True, correct and complete copies of the Certificate of Incorporation, By-laws
as amended, and minutes (or written consents in lieu of meetings) of the Board
of Directors (and all committees thereof) and stockholders of the Seller have
been delivered to the Buyer.
5.2 The Buyer is a corporation duly organized, validly existing and
in good standing under the laws of Nevada, with all requisite power and
authority to own, lease and operate its businesses as it now being owned,
operated and conducted. The Buyer is licensed or qualified to do business and is
in good standing as a foreign corporation authorized to do business in each
jurisdiction where the nature of the properties owned, leased or operated by it
and the business where the nature of the properties owned, leased or operated by
it in and the business transacted by it requires such licensing or
qualification. True, correct and complete copies of the Certificate of
Incorporation, By-laws as amended, and minutes (or written consents in lieu of
meetings) of the Board of Directors (and all committees thereof) and
stockholders of the Buyer have been delivered to the Seller.
5.3 AUTHORIZATIONS: The Seller has full power and authority to enter
into this Agreement and to consummate the transaction contemplated hereby. The
Seller has duly and validly executed and delivered this Agreement and has duly
and validly executed and delivered any related agreements required hereby. This
Agreement constitutes the legal, valid and binding obligations of the Seller and
is enforceable against the Seller in accordance with the terms contained herein.
5.4 APPROVALS: The execution, delivery and performance by the Seller
of this Agreement does not and will not (i) violate or conflict with, result in
a breach termination of, constitute a default (or a circumstance which, with or
without notice or lapse of time or both, would constitute a default), or give
any third party any additional right (including a termination right) under,
permit cancellation of, or result in the creation of any lien upon any of the
assets or properties of the Seller, or the Seller is a party or by which the
Seller, a Subsidiary or any of their respective assets or properties are bound;
(ii) permit the acceleration of the maturity of any of the circumstances in
which they were made, not misleading. Except for the assumed debt set forth in
Paragraph 3, the Seller has no liabilities, debts, claims or obligations,
whether accrued, absolute, contingent or otherwise, whether due or to become
due.
5.5 MARKETABLE TITLE. Seller has good and marketable title to all
assets and property sold under this Agreement, except as otherwise stated in the
exhibits attached to this agreement and except for property disposed of or
encumbered in the ordinary course of business. All tangible property sold under
this agreement is in good condition and repair and conforms to all applicable
zoning, building, safety, and other regulations.
5.6 CONSENTS TO TRANSFERS. Seller agrees to use its best efforts to
obtain the necessary consents for the assignment or transfer of any contract,
lease, license, or permit to be assigned or transferred under this agreement and
to perform its duties under such contracts, leases, licenses, and permits
without default until the closing date.
5.7 ORDINARY COURSE OF BUSINESS. Until the closing date of this
agreement, Seller shall not, without the written consent of Buyer, dispose of or
encumber any of the assets or property to be sold under this agreement, with the
exception of any transactions occurring in the ordinary course of Seller's
business. Seller shall use its best efforts to preserve its business and good
will. Seller further agrees to permit buyer and its representatives full access
to its property and records any time prior to the closing date during normal
business hours and to supply all information concerning its property and affairs
as buyer may reasonably demand.
The Buyer represents and warrants to the Seller, as of the date of
this Agreement and as of the Closing Date (as if such representations and
warranties were remade on the Closing Date). As follows:
5.5 AUTHORIZATIONS: The Buyer has full power and authority to enter
into this Agreement and to consummate the transaction contemplated hereby. The
Buyer has duly and validly executed and delivered this Agreement and has duly
and validly executed and delivered any related agreements required hereby. This
Agreement constitutes the legal, valid and binding obligations of the Buyer and
is enforceable against the Seller in accordance with the terms contained herein.
5.6 APPROVALS: The execution, delivery and performance by the Buyer
of this Agreement does not and will not (i) violate or conflict with, results in
a breach termination of, constitute a default (or a circumstance which, with or
without notice or lapse of time or both, would constitute a default) or give any
third party any additional right (including a termination right) under, permit
cancellation of, or result in the creation of any lien upon any of the assets or
properties of the Buyer or the Buyer is a party or by which the Buyer or any of
their respective assets or properties are bound; (ii) permit the acceleration of
the maturity of any of the circumstances in which they were made, not
misleading.
6.0 MISCELLANEOUS MATTERS:
(a) Subject to the provisions herein, the Buyer and Seller agree to
indemnify, defend and hold each other harmless from and against all demands,
claims, actions, losses, damages, liabilities, costs and expenses, including
without limitation, interest, penalties and attorneys' fees and expenses
asserted against or imposed or incurred by either party by reason of or
resulting from any action or a breach of any representation, warranty, covenant,
condition, or agreement of the other party to this Agreement. To the maximum
extent permitted by law, Buyer, on behalf of itself and any affiliate thereof,
shall hereby and hereafter release, indemnify, hold-harmless and defend Seller
from all liability of the Seller (except as provided in Paragraph 4 (a)(i)-(iii)
hereinabove) and any other claim or demand regarding the Seller or the
activities of the Seller.
(b) Wherever the context shall require, all words herein in the
masculine gender shall be deemed to include the feminine or neuter gender, all
singular words shall include the plural, and all plural shall include the
singular.
(c) If any provision hereof is deemed unenforceable by a court of
competent jurisdiction, the remainder of this Agreement, and the application of
such provision in other circumstances shall not be affected thereby.
(d) From and after the date of this Agreement, each of the parties
hereto agrees to execute whatever additional documentation or instruments as are
necessary to carry out the intent and purposes of this Agreement or to comply
with any law.
(e) No waiver of any provision of this Agreement shall be valid
unless in writing and signed by the waiving party. The failure of any party at
any time to insist upon strict performance of any condition, promise, agreement
or understanding set forth herein, shall not be construed as a waiver or
relinquishment of any other condition, promise, agreement or understanding set
forth herein or of the right to insist upon strict performance of such waived
condition, promise, agreement or understanding at any other time.
(f) Except as otherwise provided herein, each party hereto shall bear
all expenses incurred by each such party in connection with this Agreement and
in the consummation of the transactions contemplated hereby and in preparation
thereof.
(g) This Agreement may only be amended or modified at any time, and
from time to time, in writing, executed by the parties hereto.
(h) Any notice, communication, request, reply or advice (hereinafter
severally and collectively called "Notice") in this Agreement provided or
permitted to be given, shall be made or be served by delivering same by
overnight mail or by delivering the same by a hand-delivery service, such Notice
shall be deemed given when so delivered. For all purposes of Notice, the
addresses of the parties set out below their signatures herein shall be their
addresses unless later advised in writing.
(i) Captions herein are for the convenience of the parties and shall
not affect the interpretation of this Agreement.
(j) This Agreement may be executed 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 and this Agreement may be executed by fax.
(k) This Agreement is not assignable without the written consent of
the parties.
(l) Provisions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the parties, their heirs, executors,
administrators, other permitted successors and assigns, if any. Nothing
contained in this Agreement, whether express or implied, is intended to confer
any rights or remedies under or by reason of this Agreement on any persons other
than the parties to it and their respective successors and assigns, not is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third persons to any party to this Agreement, not shall any
provision give any third persons any right of subrogation over, or action
against, any party to this Agreement.
(m) This Agreement constitutes the entire agreement and understanding
of the parties on the subject matter hereof and supercedes all prior agreements
and understandings on the subject thereof.
(n) The parties hereto agree to cooperate with one another in respect
of this Agreement, including reviewing and executing any document necessary for
the performance of this Agreement, to comply with law or as reasonably requested
by any party hereto, or legal counsel to any party hereto.
(o) The parties hereto agree to cooperate with one another in respect
of this Agreement, including reviewing and executing any document necessary for
the performance of this Agreement, to comply with law or as reasonably requested
by any party hereto, or legal counsel to any party hereto.
(p) The parties hereto agree that (i) Gateway has retained
independent legal counsel in connection with the preparation and of this
Agreement, (ii) Gateway has been advised of the importance of retaining legal
counsel, and (iii) by the execution of this Agreement, each party who has not
retained independent legal counsel acknowledges having waived such right.
(q) The law of the State of Illinois shall apply to this Agreement
without reference to conflict of law principles, and the sole venue for any
dispute or suit between the parties shall be a court of competent jurisdiction
in the location of the ADVISOR in Illinois.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date above written.
TRSG CORPORATION, A DELAWARE CORPORATION, SELLER
BY: /S/ XXX XXXXX
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XXX XXXXX, PRESIDENT
GATEWAY DISTRIBUTORS, INC., A NEVADA CORPORATION, BUYER
BY: /S/ XXXX XXXXXX
