ASSET PURCHASE AND SALE AGREEMENT
This Asset Purchase and Sale Agreement
(the “Agreement”) is entered into concurrent with the completion of the Merger,
as defined below (the “Effective Time”), by and between Tedom Capital, Inc. (the
“Seller”) and Naven Properties, LLC (the “Buyer”), with reference to the
following facts and circumstances:
Recitals
A. Seller
is the owner of the Assets, as defined below.
B. Seller,
Seller’s wholly-owned subsidiary (the “Merger Sub”) and eLayaway, Inc. (“xXX”)
have previously entered into a Merger Agreement (the “Agreement”) pursuant to
which, among other things, (i) shares of xXX will be converted into shares of
Seller and (ii) Merger Sub will be merged into xXX (the “Merger”), with xXX
continuing as the surviving corporation. Pursuant to the Agreement,
as a condition to the completion of the Merger, (i) Seller is required to divest
itself of the Assets and the Liabilities (as defined below) and (ii) Buyer is
required to surrender for cancellation the 21,000,000 post-split shares of
Seller’s $0.001 par value common stock that Buyer currently owns (the
“Shares”).
C. In
order to comply with the terms of the Agreement and allow the completion of the
Merger, Buyer desires to purchase the Assets from Seller and assume the
Liabilities, and Seller desires to accomplish such a sale and assumption, in
each case on the terms and conditions set forth herein.
Now, therefore, in consideration of the
representations, warranties and agreements herein contained, and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Agreement
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1.
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Purchase and Sale of
Assets; Assumption of
Liabilities.
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(a) Purchase and Sale of the
Assets. Subject to the terms and conditions of this Agreement,
and on the basis of and in reliance on the representations, warranties and
agreements contained herein, at the Effective Time, Seller hereby sells,
conveys, assigns, transfers and delivers the Assets to Buyer, and Buyer hereby
purchases the Assets from Seller.
(b) Purchase Price. The
purchase price for the Assets (the “Purchase Price”) shall consist of (i) the
surrender of the Shares for cancellation and (ii) Buyer’s assumption of the
Liabilities.
(c) The
Assets. The assets being purchased by Buyer consist of (i) an
unsecured promissory note by Xxxx Xxxxxx dated May 19, 2007, in the initial
principal amount of $10,491.00, (ii) an unsecured promissory note by Xxxxx Xxxx
dated February 7, 2008, in the initial principal amount of $3,000.00 and (iii)
all of Seller’s books, records and other documentation with respect to the
foregoing (collectively, the “Assets”). The Assets do not include any
of Seller's (i) corporate books, (ii) accounts receivable or (iii) cash on hand
or in the bank. Except as provided in Section 2 below, Buyer agrees that the
Assets are being acquired in “as is” condition without representation or
warranty of any kind, including warranties as to marketability and fitness for
any particular purpose.
(d) Assumption of
Liabilities. At the Effective Time, Buyer hereby assumes
(i) all of Seller’s rights and obligations under the four Convertible 10%
Promissory Notes (the “Notes”) issued by Seller to Ameris, LLC is the aggregate
principal amount of $73,500 and (ii) all other liabilities of Seller that are
known to exist at the Effective Time (collectively, the
“Liabilities”).
(e) Deliveries by
Seller. Simultaneous with the execution of this Agreement,
Seller shall deliver to Buyer the following:
(i) the
Assets, together with such bills of sale and other documents, if any, as may be
necessary to transfer to Buyer good title to all of the Assets; and
(ii) such
other documents as may be reasonably requested by Buyer in connection
herewith.
(f) Deliveries by
Buyer. Simultaneous with the execution of this Agreement,
Buyer shall deliver to Seller the following:
(i) the
certificate(s) for the Shares accompanied by stock powers executed in blank
bearing a Medallion signature guarantee; and
(ii) such
other documents as may be reasonably requested by Seller in connection
herewith.
2. Seller’s
Representations and Warranties. As an
inducement to Buyer to enter into this Agreement and to consummate the
transactions contemplated herein, Seller hereby represents and warrants to
Buyer, and agrees, as follows:
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(a) Authority
.. Seller has the full right, power and authority to enter into this
Agreement and all other agreements entered into in connection herewith and to do
and perform all acts required under this Agreement and such other
agreements. The execution and delivery of this Agreement and such
other agreements, the consummation of the transactions contemplated hereby or
thereby, and the compliance with or fulfillment of the terms and provisions of
this Agreement and such other agreements, will not conflict with or result in a
breach of the provisions of (i) any law or regulation applicable to
Seller or the Assets or (ii) any agreement, judgment, order, award, decree or
other instrument or restriction to which Seller is a party or by which Seller is
bound. Except for disclosure required by the Securities and Exchange
Commission, no authorization, approval or consent of, or notice to or filing
with, any person or entity or any governmental department, commission, bureau or
agency or other public body or authority is or will be required for the
execution, delivery or performance by Seller of this Agreement or any other
agreement entered into in connection herewith or for the consummation by Seller
of the transactions contemplated hereby or thereby. This Agreement
and such other agreements constitute legal, valid and binding obligations of
Seller and will be enforceable against Seller in accordance with their
respective terms.
(b) Title to Assets; Absence of
Liens and Encumbrances. Seller has good and marketable title
to all of the Assets, free and clear of all liens, mortgages, security
interests, claims and encumbrances.
(c)
Performance with Respect to
the Liabilities. As of the Effective Time, Seller has
performed all material obligations to be performed by it with respect to the
Liabilities. The consummation of the transactions contemplated hereby will not
result in the breach or cancellation of any of the Liabilities.
(d) Broker's
Fees. No person or entity is entitled, by reason of any act or
omission of Seller or its agents, to any broker's or finder's fee, commission or
other similar compensation in connection with the execution and delivery of this
Agreement or any related agreement, or with respect to the consummation of the
transactions contemplated herein.
3. Buyer’s
Representations and Warranties. As
an inducement to Seller to enter into this Agreement and to consummate the
transactions contemplated herein, Buyer hereby represents and warrants to
Seller, and agrees, as follows:
(a) Authority. Buyer
has the full right, power and authority to enter into this Agreement and all
other agreements entered into in connection herewith and to do and perform all
acts required under this Agreement and such other agreements. The
execution and delivery of this Agreement and such other agreements, the
consummation of the transactions contemplated hereby or thereby, and the
compliance with or fulfillment of the terms and provisions of this Agreement and
such other agreements, will not conflict with or result in a breach of the
provisions of (i) any law or regulation applicable to Buyer or (ii)
any agreement, judgment, order, award, decree or other instrument or restriction
to which Buyer is a party or by which Buyer is bound. No
authorization, approval or consent of, or notice to or filing with, any person
or entity or any governmental department, commission, bureau or agency or other
public body or authority is or will be required for the execution, delivery or
performance by Buyer of this Agreement or any other agreement entered into in
connection herewith or for the consummation by Buyer of the transactions
contemplated hereby or thereby. This Agreement and such other
agreements constitute legal, valid and binding obligations of Buyer and will be
enforceable against Buyer in accordance with their respective
terms.
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(b) Broker's
Fees. No person or entity is entitled, by reason of any act or
omission of Buyer or its agents, to any broker's or finder's fee, commission or
other similar compensation in connection with the execution and delivery of this
Agreement or any related agreement, or with respect to the consummation of the
transactions contemplated herein.
4. Miscellaneous
Provisions.
(a) Further
Acts. From time-to-time after the Effective Time, each party
agrees to promptly perform, at its expense, any acts and execute and deliver any
further documents which may be reasonably requested by the other party in order
to consummate more effectively the transactions contemplated
hereby.
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(b)
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Prorations;
Expenses .
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(i) The
following shall be prorated and/or adjusted between Seller and Buyer in cash
promptly after the Effective Time: (i) personal property and other taxes which
are a lien upon any of the Assets for the current year (which shall be prorated
on the basis of the most recent ascertainable tax xxxx), (ii) all deposits of
any kind and (iii) all prepayments, if any, with respect to the
Liabilities.
(ii) All
expenses (including attorney's and accountant's fees) in connection with (A) the
preparation and negotiation of this Agreement and any other documents referred
to herein and (B) the consummation of the transactions referred to herein or
therein, shall be borne by the party who incurred them.
(c) Survival. The
provisions of this Agreement shall survive the Effective Time and
continue in full force and effect at all times thereafter.
(d) Notices. All
notices and other communications required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been sufficiently
given if personally delivered, telecopied, or sent by overnight courier,
addressed to the party to whom it is to be given, at the address set forth
below. A notice or other communication shall be deemed received (i)
upon receipt, if personally delivered, (ii) on the first business day after
dispatch, if sent by overnight courier and (iii) on the first business day after
dispatch, if transmitted by telecopy. A party hereto may change his
address by written notice in accordance with this Section.
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If to
Seller, at:
c/o
eLayaway, Inc.
0000
Xxxxxx Xxxx Xxxxx
Xxxxxxxx
Xxxxxxxx, Xxxxx 000
Xxxxxxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxxx Xxxxx
Fax:
(000) 000-0000
If to
Buyer, at:
0000
Xxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxx
Xxxxx, Xxxxxx 00000
Attn:
Xxxxx Xxxxxxx, Manager
(e) Entire Agreement; Amendment
and Waiver. This Agreement, together with any other documents
expressly referred to herein, contains the entire agreement of the parties with
respect to its subject matter and supersedes all prior negotiations, agreements
and understandings, written or oral, with respect to such subject
matter. Other than as set forth herein or in any other document
delivered pursuant hereto, the parties make no representations or warranties of
any kind, whether express or implied, in connection with the transactions
contemplated hereby. No waiver or amendment of any provision of this
Agreement shall be effective unless in writing and signed by the party to be
bound. No delay or omission of any party hereto in exercising any
right or remedy hereunder shall constitute a waiver of such right or remedy, and
no waiver as to any obligation shall operate as a continuing waiver or as a
waiver of any subsequent breach.
(f) Assignment. This
Agreement and all provisions hereof shall be binding upon and inure only to the
benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either party hereto
without the prior written consent of the other party.
(g) Headings. The
descriptive headings of the Sections of this Agreement are inserted for
convenience only, do not constitute a part of this Agreement, and shall not
affect in any way the meaning or interpretation of this Agreement.
(h) Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed to be
an original, and all of which together shall be deemed to be one and the same
instrument.
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(i) Applicable
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California, without regard to the
conflicts of laws rules thereof.
(j) Interpretation. Each
party intends that this Agreement be deemed and construed to have been jointly
prepared by the parties. As a result, the parties agree that any
uncertainty or ambiguity existing herein shall not be interpreted against either
of them. The parties also intend that the rights and remedies
hereunder be cumulative, so that exercise of any one or more of such rights or
remedies shall not preclude the later or concurrent exercise of any other rights
or remedies.
IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered by the
parties hereto at the Effective Time.
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By:
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Xxxxx
Xxxxxxx, President
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NAVEN
PROPERTIES, LLC
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By:
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Title:
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Consent of Ameris,
LLC
The undersigned hereby (i) consents
to Buyer’s assumption of Seller’s rights and obligations under the Notes and
(ii) agrees that its ability to convert the amounts due under the Notes into
shares of Seller’s common stock is terminated.
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Dated
at the Effective Time
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AMERIS,
LLC
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By:
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Title:
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