CONTRACT FOR SALE OF BUSINESS AND ASSETS
----------------------------------------
This agreement ("Agreement") is made as of June 30, 2006, between Xxxxxxxx
Distributing, L.L.C., a Utah limited liability company and EMS Business
Development, Inc., a California corporation (collectively "Seller"), Xxxxx X.
Xxxxxxx ("Property Owner") and Gateway Distributors, Ltd., a Nevada corporation,
("Buyer").
RECITALS
A. The Seller is the owner and operator of a herbal and health food
supplement distributing business (the 'Business Operations") with its principal
business office located at 0000 Xxxx 0000 Xxxxx Xxxx Xxxx Xxxx, Xxxx, 00000,
(the "Property"). Sellers assets relating to the Business Operations are
hereinafter referred to as the "Business Assets" and are described in Exhibit
"A" attached hereto.
B. Property Owner owns the Property and currently leases the Property
to Seller.
C. Seller desires to sell and Buyer desires to purchase the Business
Operations and Business Assets from Seller upon the terms and conditions set
forth herein.
D. Property Owner desires to sell and Buyer desires to purchase the
Property from the Property Owner upon the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Buyer, Seller and Property Owner agree as follows:
1. Purchase and Sale. Upon the terms and subject to the conditions set
-----------------
forth in this Agreement, Seller and Property Owner shall sell, convey, assign,
transfer and deliver to Buyer and Buyer shall purchase and acquire from Seller
and Property Owner the following:
a. The Business Operations as conducted by Seller as of June 30,
2006.
b. The Business Assets of the Seller which are utilized in
conjunction with the Business Operations as of June 30, 2006, specifically
including all right, title and interest in and to the assets, personal
properties, goodwill and rights as a going concern, of every nature, kind
and description, tangible and intangible, wherever located and whether or
not carried or reflected on the books and records of the Seller. The
Business Assets shall include, without limitation, all items reflected on
the Seller's June 30, 2006 balance sheet (the "Balance Sheet") a copy of
which is attached hereto as Exhibit "A". The Business assets shall only
include those assets of E.M.S. Business Development, Inc., which are
described on Exhibit "A" attached hereto. All other assets of E.M.S.
Business Development, Inc., are excluded from the Business Assets. Except
as otherwise provided in this Agreement, the Business Assets shall be
conveyed at the Closing (as defined below) free and clear of any mortgage,
pledge, lien, security interest, encumbrance, claim, easement, restriction
or charge of any kind or nature (whether or not of record).
1
c. The Property which shall be free and clear of all liens,
encumbrances and other matters of record except for items 1, 2, 3, 4 and 5
(the "Permitted Exceptions") shown on the preliminary title report ("PTR")
attached hereto as Exhibit "B". Seller and Property Owner shall mutually
terminate their existing lease agreement pertaining to the Property (the
"Lease") at the Closing and Buyer shall incur no liability therefor or
thereafter.
2. Purchase Price. The purchase price for the Business Operations,
---------------
Business Assets and the Property (the "Purchase Price") shall be $6,000,000.00
plus Buyer's assumption of the liabilities of $1,241,301.00 as set forth in the
Liabilities Undertaking attached hereto as Exhibit "C". The Purchase Price
shall be allocated as follows:
Business Operations and Assets $6,471,301.00
Property (Equity) $ 770,000.00
Assumption of Liabilities $1,241,301.00
Total Purchase Price $7,241,301.00
=============
3. Payment of Purchase Price. The Purchase Price shall be paid as
----------------------------
follows:
a. On or before the Closing Date, Buyer shall execute and deliver
to Seller Buyer's promissory note in the sum of Five Million Two Hundred
Thirty Thousand and No/100 Dollars ($5,230,000.00) (the "Operations &
Assets Note") in the form attached as Exhibit "D". The Operations & Assets
Note shall be secured as provided in the Security Agreement attached hereto
as Exhibit "E" and the Financing Statement UCC-1 attached hereto as Exhibit
"F".
b. On or before the Closing Date, Buyer shall execute and deposit
in Escrow an all inclusive installment note (the "Property Note") in the
principal sum of Seven Hundred Seventy Thousand and No/100 Dollars
($770,000.00) payable to the Property Owner in the form attached hereto as
Exhibit "G". The Property Note shall be secured by an all inclusive deed of
trust on the Property (the "Property Deed of Trust") which shall be in the
form attached hereto as Exhibit "H". On or before the Closing Date,
Property Owner will deposit into Escrow, for delivery to Buyer at Closing a
good and sufficient deed transferring title to the Property to Buyer.
c. On or before the Closing Date, Buyer shall execute and deliver
to Seller the Liabilities Undertaking and shall assume the liabilities as
provided in this Agreement.
d. Seller and Property Owner covenant and agree that:
i. a portion of the Operations & Assets Note proceeds
(approximately $3,786,062) will be used to pay the balance owing on
the following obligations which are currently owed by the Seller
and/or its affiliates to Xxxxxxxx Xxxxxxx and/or Xxxx Xxxxxxx (the
"Janssens"): ($1,025,000 Bank of Stockton #1, $437,450 Bank of
Stockton #2, $748,612 Farmers & Merchants #1, $75,000 Xxxxx Fargo,
$225,000 Xxxxx Xxxxxxx Personal Note #1, $525,000
2
Xxxxxxx Personal Note #2, $750,000 Farmers & Merchants #2 to be drawn
upon through transition)(hereafter collectively the "Xxxxxxx Debts");
and
ii. the proceeds from the Property Note (approximately
$770,000) will be paid to the Property Owner for the Property as
provided in Paragraph 2 above and the Property Owner shall satisfy and
discharge the underlying note and underlying deed of trust.
iii. Seller and Property Owner further covenant and agree
that the proceeds from the Purchase Price shall be applied as follows:
First to the unpaid balance of the Xxxxxxx Debts to
the Janssens;
Second to pay the unpaid balance on the Property Note
and the Property Deed of Trust ($770,000) in favor of Xxxxx Xxxxxxx;
Third, One Million Dollars to the Janssens; and
Fourth, the remainder of the Purchase Price will be
disbursed to the Seller.
e. The parties understand and agree that Buyer has no
responsibility to ensure that any proceeds of the sale due Seller or
Property Owner are applied by them in the manner described in subparagraph
d above and that the failure of Seller and Property Owner to apply any
proceeds of sale in said manner shall not affect their obligations to the
Buyer created in this Agreement.
f. Notwithstanding the pro visions of this subparagraph 3 above,
it is understood and agreed that the Janssens' Debt will continue to be
serviced by Buyer throughout the Holding Period (defined below). Any
accrued and unpaid interest at the end of the Holding Period will be added
to the Purchase Price and to the Operations & Assets Note.
g. Payment of the Purchase Price will be secured by the (a)
Business Operations; and (b) the Business Assets and (c) 12,000,000
shares of Cal-Bay International, Inc., preferred B Stock (the "CBAY
Shares") owned by Buyer's affiliate Gateway Venture Holdings, Inc. Gateway
Venture Holdings, Inc. will deposit into an escrow account with Turn-Key
Financial Services, Inc. ("Escrow Holder") the CBAY Shares which shall be
restricted for one year and which shall be retained by Escrow Holder as
part of the security for the full and timely payment of the Purchase Price.
At the Closing Buyer shall provide the Escrow Holder with irrevocable
instructions to pay the Purchase Price in full on or before September 1,
2007 (the "Holding Period"). Said instructions shall be approved by Gateway
Venture Holdings, Inc., and shall further provide that if the Purchase
Price has not been paid in full at the end of the Holding Period, the CBAY
Shares shall (to the extent necessary) be sold by the Escrow Holder and the
proceeds shall be used to pay the Purchase Price.
4. Representations, Warranties and Covenants of Seller. In order to
------------------------------------------------------
induce Buyer to enter into this Agreement, Seller represents, warrants and
covenants to Buyer that:
3
x. Xxxxxxxx Distributing, LLC is a limited liability company duly
organized, validly existing and in good standing under the laws of the
state of Utah, and is qualified and licensed to do business as it is now
being conducted.
b. EMS Business Development, Inc., is a California corporation,
validly existing and in good standing under the laws of the State of
California and is qualified and licensed to do business as it is now being
conducted.
c. The Seller has good and marketable title to the Business Assets
free and clear of all mortgages, pledges, charges, security interests,
encumbrances and any other liens of any nature whatsoever except as
described herein and/or shown on the Balance Sheet.
d. The Property Owner has and shall deliver good and marketable
title to the Property except or the Permitted Exceptions shown on the PTR.
e. Upon execution of this Agreement by all parties this Agreement
shall be a valid and binding Agreement of Seller except as limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights.
f. There are no suits or claims relating to the Seller, the
Property Owner, the Business Operations, the Business Assets, or the
Property which are currently pending against Seller, or the Property Owner
which have been threatened or asserted against Seller or the Property
Owner.
g. Except as disclosed pursuant to this Agreement, there are no
liabilities (whether absolute or contingent, liquidated or unliquidated,
due or to become due) relating to the Seller or the Property, nor has any
condition existed or event occurred which could reasonably be expected to
give rise to such liability.
h. This Agreement contains the entire agreement and understanding
of the parties and there are no other representations, warranties or
promises upon which the parties rely, each of the parties hereto having
performed his or its own due diligence in investigating the transactions
described herein. Buyer further acknowledges and agrees that (i) except and
only as expressly set forth in this Agreement, it has not relied on any
representations warranties or covenants of either Seller, Property Owner or
anyone acting for or on behalf of Seller or Property Owner; and (ii) Buyer
shall purchase the Business Operations, Business Assets and Property based
on its own independent inspection and examination thereof.
5. Representations, Warranties and Covenants of Buyer. In order to
------------------------------------------------------
induce Seller and Property Owner to enter into this Agreement, Buyer represents,
warrants and covenants to Seller and Property Owner that:
a. Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada and is qualified and
licensed to do business as it is now being conducted.
4
b. The Buyer has full corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated herein. The
Boards of Directors of the Buyer have taken all action required by law,
their respective articles of incorporation and bylaws or otherwise to
authorize the execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated herein.
c. Upon execution of this Agreement by all parties this Agreement
shall be a valid and binding legal obligation of the Buyer enforceable
against it in accordance with its terms.
d. Buyer is the sole owner of the CBAY Shares, free and clear of
any liens or encumbrances save and except the restrictions imposed on all
preferred B shares issued by CBAY.
e. Buyer and any entity or person that owns or controls Buyer are
not bankrupt or insolvent under any applicable Federal state standard, have
not filed for protection or relief under any applicable bankruptcy or
creditor protection statute and have not been threatened by creditors with
an involuntary application of any applicable bankruptcy or creditor
protection statute.
f. Neither this Agreement, nor any of the Exhibits hereto, nor any
document, certificate, or statement referred to herein or furnished to the
Seller by Buyer in connection with the transaction contemplated herein
(whether delivered prior to, simultaneously with, or subsequent to the
execution of this Agreement) contains any untrue statement of material
fact, or, to the best of Buyer's knowledge, omits to state a material fact
in any way concerning the Buyer or the transaction contemplated hereby.
g. This Agreement contains the entire agreement and understanding
of the parties and there are no other representations, warranties, or
promises upon which the parties rely, each of the parties hereto having
performed his or its own due diligence in investigating the transactions
described herein. Seller and Property Owner further acknowledge and agree
that (i) except and only as expressly set forth in this Agreement, they
have not relied on any representations, warranties or covenants of Buyer or
anyone acting for or on behalf of Buyer; and (ii) Seller and Property Owner
shall sell the Business Operations, Business Assets and Property based on
their own independent inspection and examination thereof.
h. Purchaser covenants and agrees that during the period from the
Closing and continuing through the end of the Holding Period that:
i. Buyer shall continue to manage and operate the Seller's
Business Operations in accordance with Seller's current practices and
that Buyer shall make no change in Seller's current management,
personnel, practices or policies regarding the Business Operations
unless it receives the Seller's prior written consent thereto.
ii. Buyer shall pay its employees all wages, salaries and
benefits of any kind, including without limitation, vacation accruing
to such employees in a
5
timely manner and the Seller shall have no duty or obligation to pay
any salary, benefits, or other compensation to Buyer's employees for
the time period following the Closing.
iii. Buyer shall not sell, mortgage, pledge, hypothecate or
otherwise transfer or dispose of all or any part of the Business
Assets; the assets acquired as a result of the Business Operations
following the Closing; or any interest therein except (a) for
inventory in the ordinary course of the Business Operations; or (b) if
the Seller consents thereto in writing.
iv. Buyer shall not terminate, modify, extend, amend or
assign any lease or contract or enter into any new lease or contract
without the prior written consent of the Seller except that the
consent of Seller shall not be necessary for new contracts which are
entered into in the ordinary course of business.
v. Buyer shall maintain in full force and effect, the same
insurance coverages currently maintained by Seller in conjunction with
its Business Operations.
vi. Upon prior notice and at reasonable times Seller shall
have access to the Property and the Business Assets to inspect the
same to and assure that Buyer is complying with the requirements of
this Agreement.
vii. Buyer acknowledges and agrees that a monthly review of
the Business Operations, Business Assets and the Property are
contemplated by the Seller and Seller shall be provided access to the
Property, Business Assets and Buyer's business records during normal
business hours for such purposes, upon reasonable advance notice.
6. Conditions Precedent to Buyer's Obligation to Close. Buyer's
---------------------------------------------------------
obligation to purchase the Business Operations, Business Assets and Property and
to take the other actions required to be taken by Buyer on or before the Closing
is subject to the satisfaction or waiver by Buyer of each of the following
conditions on or before the Closing Date:
a. Each of Seller's representations and warranties in this
Agreement shall have been accurate in all material respects as of the date
of this Agreement, and shall be accurate in all material respects as of the
time of the Closing as if then made.
b. Each of the covenants and obligations that Seller is required
to perform or to comply with pursuant to this Agreement at or prior to the
Closing shall have been duly performed and complied with in all material
respects.
c. Any consents required to sell assign and transfer the Business
Operations, Business Assets and the Property to Buyer shall have been
obtained and shall be in full force and effect.
d. Seller shall have caused the following documents to be
delivered (or tendered subject only to Closing) to Buyer:
6
i. A copy of each of the Seller's articles of organization
and all amendments thereto.
ii. Certificates or other documents dated as of a date not
earlier than the thirty business days prior to the Closing confirming
the good standing of Xxxxxxxx Distributing, LLC in the State of Utah
and EMS Business Development, Inc., in the State of California.
iii. An Assignment and Xxxx of Sale in the form attached
hereto as Exhibit "I".
iv. A termination of the Lease executed by both Seller and
the Property Owner.
v. Escrow Holder's commitment to issue Title insurance
insuring that fee title to the Property is held by Buyer free and
clear of all easements, liens, encumbrances, covenants and/or
restrictions, except the Permitted Exceptions.
vi. A good and sufficient deed conveying the Property to the
Buyer.
7. Conditions Precedent to Seller's Obligation to Close. Seller's
---------------------------------------------------------
obligations to sell the Business Operations, Business Assets and the Property
and to take the other actions to be taken by Seller on or before the Closing are
subject to the satisfaction or waiver by Seller of each of the following
conditions on or before the Close of Escrow:
a. Each of Buyer's representations and warranties in this
Agreement shall have been accurate in all material respects as of the date
of this Agreement, and shall be accurate in all material respects as of the
time of the Closing as if then made.
b. Each of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing shall have been performed and complied with in all material
respects.
c. Buyer shall cause each of the following documents to be duly
executed and delivered to Seller on or before the Close of Escrow:
i. Operations & Assets Note;
ii. Security Agreement;
iii. Financing Statement;
iv. Property Note;
v. Property Deed of Trust; and
vi. Liability Undertaking.
d. Buyer shall have deposited the CBAY Shares with Escrow Holder
and the duly executed irrevocable escrow instruction as provided in
paragraph 3e above.
7
8. Termination. Buyer acknowledges that each of Buyer's
-----------
representations, warranties and covenants set forth in paragraph 5 above are
material to the Seller entering into this Agreement. In the event that Buyer
shall breach any representation, warranty and/or covenant in paragraph 5 or
should Buyer be in default of any of its obligations under this Agreement, then
Seller and/or Property Owner shall give Buyer notice of the breach and/or
default in writing and said notice shall be sent to the Buyer via certified mail
at the address shown below. The notice will describe with reasonable detail the
nature of the breach and/or default. The Buyer shall then have 20 days after
the postmark on the envelope containing the notice within which to cure and
correct the alleged default. If the default has not been cured at the
expiration of the 20th day, then:
a. Seller may, if Seller so elects, give written notice to Buyer
of its election to terminate this Agreement and except as otherwise
provided in this Agreement, the Agreement will thereupon terminate and be
of no further force or effect;
b. Escrow Holder shall liquidate sufficient CBAY Shares held in
the escrow account and shall pay to the Seller (on behalf of Buyer) the sum
of $200,000.00 in consideration for the Seller having entered into this
Agreement and having removed the business from the market place;
c. The Business Operations shall be immediately turned over to
Seller;
d. All Business Assets as well as any additional assets acquired
as a result of the Business Operations conducted after the Closing shall
thereupon be deemed assigned to the Seller and possession thereof shall
immediately be returned to Seller;
e. Possession and title to the Property shall immediately be
reconveyed to the Property Owner. Title to the Property, shall be free and
clear of all matters of record, save and except those matters of record at
the Closing; and.
f. If termination occurs pursuant to this paragraph 8, the parties
will cooperate to return the Business Operations and Business Assets to the
Seller and the Property to Property Owner.
9. Indemnity Agreement. Other than the Seller's liabilities expressly
--------------------
assumed by Buyer as provided herein, Seller shall indemnify and hold Buyer
harmless from any and all liabilities, obligations and claims arising out of or
relating to: a) the Business Operations conducted by the Seller prior to the
Closing; or b) the ownership or operation of the Business Assets by Seller prior
to the Closing; or c) the use and/or ownership of the Property by the Seller
and/or Property Owner prior to the Closing.
10. Buyer's Indemnity Agreement. Other than the Seller's obligation to
---------------------------
discharge the Xxxxxxx'x Debt and the Property Note and Property Deed of Trust as
provided in paragraph 3d above, Buyer shall indemnify and hold Seller and
Property Owner harmless from any and all liabilities, obligations and claims
arising out of or relating to: a) the Business Operations conducted by the Buyer
after the Closing; or b) the ownership or operation of the Business Assets by
Buyer after the Closing; or c) the use and/or ownership of the Property by the
Buyer after the Closing.
8
11. Compliance With Bulk Sales Law. Buyer and Seller each waive the
---------------------------------
requirement, if any, to publish, record or otherwise prove any notices of this
transaction to Seller's creditors or other third parties. The parties have
agreed that since the balance of the Purchase Price is payable at the end of the
Holding Period that any such notice need not be given as part of this purchase
and sale.
12. As Is Condition.
-----------------
a. Buyer hereby acknowledges and agrees that except and only as
expressly set forth in this Agreement, neither Seller, Property Owner nor
anyone acting for or on behalf of Seller or Property Owner has made any
representations, warranties or promises whatsoever to Buyer concerning (i)
The Business Operations, Business Assets and/or the Property or any part
thereof (including, without limitation, the presence or absence of any
Hazardous Materials as defined by any environmental statutes or
regulations); (ii) the feasibility, desirability or suitability of Business
Operations, Business Assets and/or the Property or any part thereof for
Buyer's intended use or for any other particular use or purpose; (iii) the
compliance or non-compliance of Business Operations, Business Assets and/or
the Property or any part thereof with any applicable laws, rules or
regulations, including, without limitation, licenses, use permits, building
codes, fire and safety codes; (iv) the accuracy or completeness of any
business records, returns or reports provided by Seller to Buyer.
b. Buyer further acknowledges and agrees that (i) except and only
as expressly set forth in this Agreement, it has not relied on any
representations, warranties or covenants of either Seller, Property Owner
or anyone acting for or on behalf of Seller or Property Owner; (ii) all of
the matters set forth in 12a above, or otherwise concerning Business
Operations, Business Assets and/or the Property have been independently
reviewed and verified by Buyer to its full satisfaction; (iii) Buyer shall
purchase the Business Operations, Business Assets and Property based on its
own independent inspection and examination thereof; and (iv) Buyer shall
purchase the Business Operations, Business Assets and the Property in their
"AS-IS" condition as they exist on the Close of Escrow.
13. Time and Place of Closing. The sale and purchase shall close on or
-------------------------
before August 9, 2006 at 5:00 p.m. at 0000 Xxxx Xxxxxxxxx Xxx, Xxxx Xxxx Xxxx
Xxxx, 00000 (the "Closing" and/or the "Close of Escrow").
14. General Provisions. The General Provisions are as follows:
-------------------
a. Except as otherwise provided in this Agreement, each party to
this Agreement will bear its respective fees and expenses incurred in
connection with the preparation, negotiation, execution and performance of
this Agreement and the transactions contemplated herein.
b. Any public announcement, press release or similar publicity
with respect to this Agreement or the transactions contemplated herein will
be issued, if at all, at such time and in such manner as Buyer determines.
9
c. All notices, consents, waivers and other communications
required or permitted by this Agreement (excepting a notice of breach
and/or default which shall be given as provided in Section 8) shall be in
writing and shall be deemed given to a party when (i) delivered to the
appropriate address by hand or by nationally recognized overnight courier
service (costs prepaid); (ii) sent by facsimile or email with confirmation
of transmission by the transmitting equipment; or (iii) received or
rejected by addressee, if sent by certified mail, return receipt requested,
in each case to the following addresses, facsimile numbers or email
addresses and marked to the attention of the person (by name or title)
designated below (or to such other address, facsimile number, email address
or person as a party may designate by notice to the other parties):
SELLER: Xxxxxxxx Distributing, LLC
Attention: Xxxxx Xxxxxx
0000 Xxxx Xxxxxxxxx Xxx
Xxxx Xxxx Xxxx, XX 00000
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Email Address: xxxxx@xxxxxxxxxx.xxx
--------------------
And EMS Business Development, Inc.
Attention: Xxxxxxxx X. Xxxxxxx
0000 X. Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Email Address: XXX@Xxxxxxx.xxx
---------------
BUYER Gateway Distributors, Ltd.
0000 Xxxx Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Phone No: (000) 000-0000
Fax No: (000) 000-0000
Email Address: xxx@xxxxxxxxxxxxx.xxx
---------------------
and xxx@xxxxxxxxxxxxx.xxx
---------------------
d. Notwithstanding the fact that the Business Operations are
primarily conducted in Utah, the Buyer and Seller hereby agree that any
proceeding arising out of or relating to this Agreement or any transaction
contemplated herein shall be brought in the courts of the State of Nevada
and each of the parties irrevocable submits to the exclusive jurisdiction
of such court in any such proceeding, waives any objection it may now or
hereafter have to venue or to convenience of forum, agrees that all claims
in respect to the proceeding shall be heard and determined only in any such
court and agrees not to bring any proceeding arising out of or relating to
this Agreement or any transaction contemplated herein in any other court.
The parties further agree that with the sole exception of the injunctive
relief contemplated in paragraph e below; the enforcement of any security
interest granted to Seller pursuant to this Agreement; or an action for
Possession of the Property, any controversy or claim arising out of or
relating to this Agreement, or the making, performance or interpretation
thereof, including without
10
limitation alleged fraudulent inducement thereof, shall be settled by
binding arbitration in Las Vegas, Nevada, by a panel of three arbitrators
in accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Judgment upon any arbitration award may be entered
in any court having jurisdiction thereof and the parties consent to the
jurisdiction of the courts located in the State of Nevada for this purpose.
e. Buyer, Seller and Property Owner acknowledge and agree that
each of them would be irreparably damaged if any of the provisions of this
Agreement are not performed in accordance with their specific terms and
that any breach of this Agreement by any of them could not be adequately
compensated in all cases by monetary damages alone. Accordingly, in
addition to any other right or remedy to which they may be entitled, at law
or in equity, each of them, Seller, Property Owner and/or Buyer shall be
entitled to enforce any provisions of this Agreement by a decree of
specific performance and to temporary, preliminary and permanent injunctive
relief to prevent breaches or threatened breaches of any of the provisions
of this Agreement.
f. The rights and remedies of the parties to this Agreement are
cumulative and not alternative.
g. This Agreement supersedes all prior agreements, whether written
or oral, between the parties with respect to its subject matter (including
any letter of intent and any confidentiality agreement between Buyer and
Seller) and constitutes (along with the Exhibits and other documents
delivered pursuant to this Agreement) a complete and exclusive statement of
the terms of the agreement between the parties with respect to its subject
matter. This Agreement may not be amended, supplemented, or otherwise
modified except by a written agreement executed by the party to be charged
with the amendment.
h. No party may assign any of its rights or delegate any of its
obligation under this Agreement without the prior written consent of the
other party. Subject to the preceding sentence, this Agreement will apply
to, be binding in all respect upon and inure to the benefit of the
successors and permitted assigns of the parties. Nothing expressed or
referred to in this Agreement will be construed to give any person other
than the parties to this Agreement any legal or equitable right, remedy or
claim under or with respect to this Agreement or any provision of this
Agreement, except such rights as shall inure to a successor or permitted
assignee pursuant to this paragraph.
i. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions
of this Agreement will remain in full force and effect. Any provision of
this Agreement held invalid or unenforceable only in part or degree will
remain in full force and effect to the extent not held invalid or
unenforceable.
j. The headings of any Articles, Sections or Paragraphs in this
Agreement are provided for the convenience only and will not affect its
construction or interpretation.
11
k. This Agreement will be governed by and construed under the laws
of the State of California without regard to conflicts-of-laws principals
that would require the application of any other law.
l. This Agreement may be executed in one or more counterparts,
each of which will be deemed to be an original copy of this Agreement and
all of which, when taken together, will be deemed to constitute one and the
same agreement. The exchange of copies of this Agreement and of signature
pages by facsimile transmission shall constitute effective execution and
delivery of this Agreement as to the parties and may be used in lieu of the
original Agreement for all purposes. Signature of the parties transmitted
by facsimile shall be deemed to be their original signatures for all
purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
SELLER: BUYER:
Xxxxxxxx Distributing, L.L.C. Gateway Distributors, Ltd.
a Utah limited liability company a Nevada corporation
By: By:
--------------------------------- --------------------------------
By:
---------------------------------
EMS Business Development, Inc.
a California corporation
By:
---------------------------------
Xxxxxxxx X. Xxxxxxx, President
By:
---------------------------------
Xxxx Xxxxxxx, Secretary
CONSENT
-------
Gateway Venture Holdings, Inc., a wholly owned subsidiary of Gateway
Distributors, Ltd. and owner of the CBAY Shares described in the foregoing
Agreement, hereby consents and agrees and to all of the terms and conditions in
said Agreement, specifically including, but not limited to those applicable to
the CBAY Shares as set forth therein.
Gateway Venture Holdings, Inc.
By:
-------------------------------------
Its:
------------------------------
12
JUNE 30, 2006
BALANCE SHEET
ASSETS AND LIABILITIES AS OF JUNE 30, 2006
TO BE ATTACHED
Exhibit "A"
PRELIMINARY TITLE REPORT
(ATTACHED)
Exhibit "B"
LIABILITY UNDERTAKING
(ATTACHED)
Exhibit "C"
OPERATIONS & ASSETS NOTE
(ATTACHED)
Exhibit "D"
SECURITY AGREEMENT
(ATTACHED)
Exhibit "E"
FINANCING STATEMENT
UCC-1
(ATTACHED)
Exhibit "F"
PROPERTY NOTE
(ATTACHED)
Exhibit "G"
PROPERTY DEED OF TRUST
(ATTACHED)
Exhibit "H"
ASSIGNMENT
AND
XXXX OF SALE
(ATTACHED)
Exhibit "I"
