PURCHASE AND SALE AGREEMENT FOR MEMBERSHIP INTERESTS IN WINDGATE CAPITAL PARTNERS LLC
PURCHASE
AND SALE AGREEMENT FOR MEMBERSHIP INTERESTS
IN
WINDGATE
CAPITAL PARTNERS LLC
This
agreement ("Agreement") is made and entered into on January 27, 2011 by and
between Windgate Global LLC, a Delaware limited liability company and Windgate
Acquisition Ltd., a Delaware corporation.
RECITALS
A. WHEREAS,
the Seller is the owner of the Interest, as Interest is defined hereinbelow;
and,
B. WHEREAS,
the Seller desires to sell the Interest to the Purchaser on the terms and
conditions set forth in this Agreement; and,
C. WHEREAS,
the Purchaser desires to purchase the Interest on the terms and conditions set
forth in this Agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the recitals set forth hereinabove, the covenants
and agreements set forth hereinafter and other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
|
1.
|
Definitions: The
following definitions shall apply to the terms of this Agreement unless
stated otherwise herein:
|
|
1.1.
|
“Purchaser"
shall mean and refer to Windgate Acquisition
Ltd.
|
|
1.2.
|
“Closing”
shall have the meaning ascribed to it in Section 5 of this
Agreement.
|
|
1.3.
|
“Closing
Date” shall mean and refer to the date on which the Closing
occurs.
|
|
1.4.
|
”Company"
shall mean and refer to Windgate Capital Partners
LLC.
|
|
1.5.
|
"Effective
Date" shall mean and refer to January 20,
2011.
|
|
1.6.
|
"Interest"
shall mean and refer to all of the outstanding membership interests of the
Company that are owned by Seller, which are one hundred percent (100%) of
the outstanding membership interests of the
Company.
|
|
1.7.
|
"Seller"
shall mean and refer Windgate Global
LLC.
|
|
2.
|
Assets: The
"Assets" of the Company consist of the
following:
|
1
|
2.1.
|
The
name Windgate Capital Partners LLC.
|
|
2.2.
|
The
goodwill of the Company.
|
|
2.3.
|
All
files of the Company.
|
|
2.4.
|
The
domain name
xxxxxxxxxxxxxxxxxxxxxxx.xxx.
|
|
2.5.
|
All
right, title and interest in and to that certain Purchase and Sale
Agreement by and between the XX Xxxxxx, LLC, a Montana limited liability
company, as Seller, and the Company, as Buyer, dated January 19, 2011 the
subject property of which is:
|
Lot 2 of
the Amended Subdivision Plat of Lots 1 and 2A of the Amended Subdivision Plat of
McChesncy Industrial Park, City of Bozeman, Gallatin County, Montana, according
to the official plat thereof on file and of record in the office of the County
Clerk and Recorder, Gallatin County, Montana. (Plat Reference:
J-50-D)
|
2.6.
|
All
other rights and property of any kind, real and personal, tangible and
intangible owned by the Company on the Closing
Date.
|
|
3.
|
Sale of
Interest: Upon the terms and conditions set forth in
this Agreement, the Seller agrees to sell, transfer, assign and deliver to
the Purchaser, and the Purchaser agrees to purchase from the Seller, the
Interest.
|
|
4.
|
Consideration: The
consideration for the Interest shall be five million (5,000,000) shares of
Purchaser (“Shares”) which shall be transferred by Seller to Purchaser at
Closing in accordance with the terms and conditions of this
Agreement.
|
|
5.
|
Closing: The
Closing of the transaction contemplated by this Agreement (“Closing”)
shall take place at a time and place to be determined by
Seller. At the Closing, the parties shall execute all documents
reasonably necessary, desirable or appropriate to close the said
transaction, including, but not limited to, certificates, escrow
agreements and assignments which shall be in a form acceptable to counsel
for the Seller.
|
|
6.
|
Resignation of
Manager. At Closing, the sole Manager of the Company,
Xxx Diego shall resign as Manager of the
Company.
|
|
7.
|
Access To Books And
Records: Subsequent to the Effective Date and until the
Closing or termination of the this Agreement, Seller shall permit
Purchaser to have access to the Seller’s books and records for the
purposes of Purchaser deems reasonably necessary for Purchaser to perform
its due diligence in connection with the transaction contemplated by this
Agreement. Such access shall be during regular business hours
upon a minimum of twenty-four (24) hours notice to the
Purchaser.
|
|
8.
|
Representations Of The
Seller Regarding the Company: With respect to the
Company, the Seller covenants, represents, and warrants in favor of the
Purchaser that through the Closing
Date:
|
2
|
8.1.
|
The
Company shall not engage in any sale, enter into any transaction,
contract, or commitment, incur any liability or obligation, or make any
disbursement, not in the ordinary course of
business.
|
|
8.2.
|
The
Company shall not amend, modify, or terminate any agreement to which the
it is a party, except in the ordinary course of
business.
|
|
8.3.
|
There
will be no increase in any compensation payable or to become payable by
the Company to the Seller or any employees or agents of the
Company.
|
|
8.4.
|
The
Company shall use its best efforts to preserve the business organization
and all of its equipment and records in good order, to keep available for
the Purchaser all of the Company's present employees, if any, and to
preserve for the Company the good will of suppliers, customers, and others
having business relationships with the
Company.
|
|
8.5.
|
No
major changes shall be made in the Company's method of operation or
quality of services.
|
|
8.6.
|
The
Company shall keep in full force and effect present insurance policies or
other comparable insurance
coverage.
|
|
8.7.
|
The
Company is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full
authority to enter into this
Agreement.
|
|
8.8.
|
The
execution, delivery and performance of this Agreement by the Company shall
not result in any breach of or violate or constitute a default under any
agreement or instrument to which the Company is a
party.
|
|
8.9.
|
The
Company has filed with the appropriate governmental agencies all required
tax returns and tax reports. The Company has paid all taxes,
assessments, fees, and other governmental charges levied upon the Assets
and its income, other than those not yet due and payable or
delinquent. The Company has not had its state or federal tax
returns audited by the appropriate authorities since the Company was
formed.
|
|
8.10.
|
There
are no outstanding orders, judgments, injunctions, awards or decrees of
any court, governmental authority or arbitration tribunal by which the
Company, or its ownership interests, assets, properties or business is
bound or subject. There are no actions, suits, legal,
administrative or arbitration proceedings or inquiries relating to the
Company pending or threatened (whether or not the defense thereof or
liabilities in respect thereof are covered by insurance) against the
Company, or any officer, shareholder, manager, or employee of the Company
(in his, her or its capacity as
such).
|
|
8.11.
|
Without
the prior written consent of the Purchaser, the Seller shall not permit
the Company to:
|
|
8.11.1.
|
Declare
or pay any dividend or make any distribution in respect of the Interest
whether now or hereafter outstanding, or purchase, redeem or otherwise
acquire or retire for value any of the
Interest.
|
3
|
8.11.2.
|
Create,
assume or permit to exist any mortgage, pledge or other lien or
encumbrance upon any assets of the Company whether now owned or hereafter
acquired, except as permitted or disclosed in this
Agreement.
|
|
8.11.3.
|
Sell,
assign, lease or otherwise transfer or dispose of any assets of the
Company except in the ordinary course of
business.
|
|
9.
|
Representations
Of The Seller Regarding the Seller: The Seller
covenants, represents, and warrants in favor of the Purchaser that through
the Closing Date:
|
|
9.1.
|
The
Seller is the owner of the Interest free and clear of all
encumbrances.
|
|
9.2.
|
The
Interest is one hundred percent (100%) of all outstanding membership
interests in the Company.
|
|
9.3.
|
The
execution, delivery and performance of this Agreement by the Seller shall
not result in any breach of or violate or constitute a default under any
agreement or instrument to which the Seller is a
party.
|
|
9.4.
|
There
are no outstanding orders, judgments, injunctions, awards or decrees of
any court, governmental authority or arbitration tribunal by which the
Seller, or its ownership interests, assets, properties or business is
bound or subject. There are no actions, suits, legal,
administrative or arbitration proceedings or inquiries relating to the
Seller pending or threatened (whether or not the defense thereof or
liabilities in respect thereof are covered by insurance) against the
Seller, or any officer, shareholder, manager, or employee of the Seller
(in his, her or its capacity as
such).
|
|
10.
|
Representations
Of The Purchaser: The Purchaser represents and warrants
in favor of the Seller that as of the date hereof, the Effective Date and
the date of Closing, the
following:
|
|
10.1.
|
The
Purchaser has been given access to all records of the Company, including,
but not limited to, tax, financial and work files, and that through such
records the Seller and the Company have adequately disclosed all
conditions regarding the Company.
|
|
10.2.
|
The
Purchaser has inspected all of the Assets and that the Assets are in
conditions acceptable to Purchaser.
|
|
10.3.
|
The
execution, delivery and performance of this Agreement by the Purchaser
shall not result in any breach of or violate or constitute a default under
any agreement or instrument to which the Purchaser is a
party.
|
|
10.4.
|
The
Purchaser is a newly formed corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full
authority to enter into this
Agreement.
|
|
10.5.
|
Purchaser
has no liabilities of any kind.
|
4
|
10.6.
|
There
are no outstanding orders, judgments, injunctions, awards or decrees of
any court, governmental authority or arbitration tribunal by which the
Purchaser, or its ownership interests, assets, properties or business is
bound or subject. There are no actions, suits, legal,
administrative or arbitration proceedings or inquiries relating to the
Purchaser pending or threatened (whether or not the defense thereof or
liabilities in respect thereof are covered by insurance) against the
Purchaser, or any officer, shareholder, manager, or employee of the
Purchaser (in his, her or its capacity as
such).
|
|
10.7.
|
Upon
the consummation of the transaction contemplated by this Agreement, all of
the outstanding shares of the Purchaser, except for two hundred fifty
thousand (250,000) shares that will be owned beneficially and of record by
Tiber Creek Corporation and two hundred fifty thousand (250,000) shares
that will be owned beneficially and of record by MB Americus, LLC, will be
owned beneficially and of record by Seller free and clear of all liens and
encumbrances, including without limitation, any agreement, understanding
or restriction affecting the voting rights or other incidents of record or
beneficial ownership pertaining to the Purchaser’s
ownership.
|
|
11.
|
Indemnification: The
Seller hereby agrees to indemnify the Purchaser against any and all
liabilities, claims and obligations of the Seller of any nature, whether
accrued, absolute, contingent, unknown or otherwise, existing or asserted
to exist as of the Closing Date to the extent any of the foregoing are not
expressly assumed by the Purchaser in this Agreement. Such
indemnification shall include, but not be limited to, actual damages,
court costs and reasonable attorney fees. The Purchaser hereby
agrees to indemnify the Seller against any and all liabilities, claims and
obligations of the Purchaser of any nature, whether accrued, absolute,
contingent, unknown or otherwise, existing or asserted to exist as of the
Closing Date to the extent any of the foregoing are not expressly assumed
by the Seller in this Agreement. Such indemnification shall
include, but not be limited to, actual damages, court costs and reasonable
attorney fees.
|
|
12.
|
Notice: All
notices under this agreement shall be in writing and at the option of the
sender be either personally served upon the party or parties to whom such
notice is directed or shall be mailed by certified mail, postage paid, to
the party or parties to whom directed at the address set forth hereinafter
or such other place as each party may from time to time give in writing to
the other parties hereto. Notice shall be deemed to have
occurred upon receipt by the party to whom sent or when returned to the
sender.
|
If to
Purchaser:
Xxxxxxx
X. Xxxxxxx
President
#
341
000 00xx
Xxxxxx Xxxxx
Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
5
If to
Seller:
Xxxxxx X.
Xxxx
Windgate
Global LLC
#
341
000 00xx
Xxxxxx Xxxxx
Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
|
13.
|
Equitable
Relief: Should any of the parties hereto breach any its
covenants or agreements contained herein, the other party shall be
entitled, in addition to all other remedies at law or otherwise, to
equitable relief, including, but not limited to, an immediate
injunction. The parties hereby agree that no party shall be
required to post any security or bond in connection with any relief it
seeks.
|
|
14.
|
Modification: No
modification or alteration of this Agreement shall be effective unless
such modification shall be in writing and signed by all parties
hereto.
|
|
15.
|
Time Of The
Essence: It is agreed that time is of the essence of
this Agreement and each and every provision
hereof.
|
|
16.
|
Attorney
Fees: Should any of the parties hereto default in any of
its covenants or obligations herein provided and should any other party
hereto commence arbitration, legal or equitable action, the prevailing
party shall be awarded all costs of said arbitration, legal or equitable
action, including reasonable attorney
fees.
|
|
17.
|
Construction: Words
of any gender shall include all genders as is
appropriate. Words in the singular shall include the plural and
vice versa. This Agreement shall be construed according to its
fair meaning as if prepared by all parties hereto, and shall be deemed to
be and contain the entire understanding and agreement between the parties
hereto.
|
|
18.
|
|
19.
|
Effect Of Partial
Invalidity: The invalidity of any provision or
provisions of this Agreement will not and shall not be deemed to affect
the validity of any other provision hereof. In the event that
any provision of this Agreement is held to be invalid, the parties hereto
agree that the remaining provisions shall remain in full force and
effect.
|
|
20.
|
Waiver And
Non-Waiver: No waiver by the parties of any one or more
of the terms, covenants, conditions, and agreements of this Agreement
shall be deemed to imply or constitute a waiver of any succeeding or other
breach hereunder.
|
|
21.
|
Binding
Effect: This Agreement shall be binding upon and inure
to the benefit of all permitted assigns and successors of the parties
hereto.
|
6
|
22.
|
Further
Assurances: The parties hereto agree to execute and
deliver such additional documents and instruments and to perform such
additional acts as may be necessary or appropriate to effectuate, carry
out, and perform all of the terms, conditions, and provisions of this
Agreement.
|
|
23.
|
No Third Party
Beneficiaries: This Agreement is made solely and
specifically among and for the benefit of the parties hereto, together
with their permitted successors, if any, and no other person or entity
shall have any right, interest, or claim hereunder or be entitled to any
benefit hereunder or on account of this
Agreement.
|
|
24.
|
Assignment: No
party hereto shall assign its rights hereunder or delegate its duties
hereunder without the written consent thereto of all other parties
hereto.
|
|
25.
|
Headings: All
headings contained herein are for purposes of reference and convenience
only and shall not limit or define any rights or obligations of the
parties hereto.
|
|
26.
|
Complete
Agreement: The parties hereto agree that this Agreement
constitutes the entire agreement between and among them with respect to
the subject matter of this Agreement and that it supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions,
expressed or implied, oral or
written.
|
|
27.
|
Authority To
Sign: Each person signing this Agreement represents and
warrants that he or she has the authority to execute this Agreement on
behalf of the entity for which he or she is
signing.
|
|
28.
|
Counterparts: This
Agreement may be executed in counterparts and by facsimile
transmission. Facsimile signatures shall bind the parties
hereto.
|
|
29.
|
No Partnership Or
Other Relationship: The parties hereto acknowledge and
agree that in all respects no party shall be considered to be an agent,
partner, or joint venturer of any other party in any manner
whatsoever. No party shall have express or implied authority to
act on behalf of or make any representations whatsoever on behalf of any
other party except as specifically provided by this
Agreement. No party shall have any right to control any
activities of any other party other than as provided by the terms of this
Agreement.
|
|
30.
|
Survival Of
Covenants: All covenants, agreements, representations
and warranties contained herein shall survive the Closing of the
transaction contemplated by this
Agreement.
|
PURCHASER:
|
By:
|
/s/ Xxxxxxx X. Xxxxxxx
|
|
|
Xxxxxxx
X. Xxxxxxx, President
|
SELLER:
Windgate
Global LLC
|
By:
|
/s/ Xxx Diego
|
|
|
Xxx
Diego, Sole Managing Member
|
7
