ASSET PURCHASE AGREEMENT BETWEEN STUART GRAHAM AND TRANSWORLD BENEFITS INTERNATIONAL INC.
BETWEEN
XXXXXX
XXXXXX
AND
THIS ASSET PURCHASE AGREEMENT
(this "Agreement")
is made effective as of the 1st day of March, 2008, the ("Effective
Date") by and between Xxxxxx Xxxxxx, an individual ("Seller") and TransWorld
Benefits International Inc., a California corporation (the "TBII").
RECITALS
WHEREAS,
TBII is an existing public shell company and has conducted a reorganization (the
"Reorganization")
whereby TBII will no longer be a wholly owned subsidiary of TransWorld
Benefits, Inc. ("TWBI"). TBII will undergo a name change, and TBII will engage,
among other related activities, in the prepaid gift card and customer loyalty
business (the "Business");
WHEREAS,
TBII has or will promptly after the Closing Date adopt a business plan reviewed,
developed and commented on by a party qualified and approved by TBII to advise
on such business plans;
WHEREAS,
following the Closing Date, TBII will use its best efforts to secure financing
for the operation of the Business;
WHEREAS,
following the Closing Date TBII will enter into a licensing agreement with
TransWorld Benefits Inc. ("TWBI")
whereby TWBI shall grant TBII permission to use all of the products and
services of TWBI;
WHEREAS,
the Seller has agreed to perform certain tasks for the benefit of TBII and sell
the Purchased Assets to TBII in exchange for certain equity interests in
TBII;
WHEREAS,
Seller hereby agrees to enter into this Agreement and deliver to TBII any and
all assignments and other documents or instruments of assignment, transfer or
conveyance as TBII deems necessary or appropriate to effectuate the sale to
TBII; and
WHEREAS,
TBII desires, by execution and delivery of this Agreement, to purchase and
accept the Purchase Assets from the Seller.
NOW,
THEREFORE, in consideration of the foregoing and the mutual representations,
warranties, covenants, and agreements herein contained, the Seller and TBII
agree as follows:
AGREEMENT
1. Purchase and
Sale of the Purchased Assets
1.1.
Agreement to Sell and
Purchase Purchased Assets. Subject to the terms, provisions, conditions,
waivers and disclaimers set forth in this Agreement, and effective as of the
Closing Date (as defined below), Seller shall sell and TBII shall purchase, all
of Seller's right, title, and interest in and to the Purchased
Assets.
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1.2.
Purchased Assets.
For purposes of this Agreement the "Purchase Assets" shall mean
all of Seller's right title and interest in and to assets described on Schedule 1.2 to the
extent legally assignable by Seller.
1.3.
Purchase Price.
Subject to the terms and conditions of this Agreement and in
consideration of the promises, acts, and sale of the Purchased Assets by the
Seller, TBII shall pay to Seller the "Purchase Price" as
follows:
1.3.1.
Cash. Four
Hundred Thousand United States Dollars ($400,000) payable (a) promptly from the
proceeds of a capital raise effectuated by TBII from a lender in an amount of at
least five million dollars ($5,000,000) and upon consent from the lender for
such a payout of the capital raise proceeds; or (b) in the event that a capital
raise is not effectuated or the lender does not consent to the payout, in equal
monthly payments over a twenty-four month period commencing upon the first month
that TBII obtains positive cash flow from operations; and
1.3.2.
Common Stock.
Sixty-Seven Million (67,000,000) shares of TBII common stock subject to a
restrictive legend, which shares shall be duly authorized by TBII and delivered
upon the Closing Date.
1.4.
Closing. The
closing of the transactions contemplated by this Agreement (the "Closing") shall take place at
such place as may be mutually agreed upon by TBII and Seller on March 1, 2008
(the "Closing Date"), or
at such other date or time as may be mutually agreed upon in writing by TBII and
Seller.
2. Covenants.
2.1.
Convents of Seller.
Seller hereby agrees as follows:
2.1.1.
The Seller shall execute and deliver, or cause to be executed and delivered, any
and all such other assignments and other documents or instruments of assignment,
transfer or conveyance as TBII shall reasonably deem necessary or appropriate to
effectuate the sale, assignment, conveyance, and delivery of the Purchased
Assets as contemplated by Section 1.1 of this Agreement.
2.1.2.
The Seller shall take all action necessary to enter into an executive employment
agreement with TBII promptly after the Closing Date.
2.2.
Covenants of TBII.
TBII hereby agrees as follows:
2.2.1.
TBII shall perform all tasks necessary to effectuate the transfer, assignment,
conveyance, and delivery of the Purchase Price to the Seller, including without
limitation obtaining the proper consents, executing share certificates, and
delivering share certificates to the Seller.
2.2.2.
TBII promptly shall provide notice to the Seller of any assignments or other
documents or instruments of assignment, transfer or conveyance as TBII shall
reasonably deem necessary or appropriate to effectuate the sale of the Purchased
Assets.
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2.2.3.
TBII shall take all action necessary to enter into an executive employment
agreement with Seller promptly after the Closing Date.
3. Representations and
Warranties.
3.1.
Representations
and Warranties of Seller: Seller hereby represents and warrants, as of
the date of this Agreement and as of the Closing Date as follows:
3.1.1.
Seller is a sophisticated investor and has knowledge and experience in financial
and business matters that enable him to evaluate the merits and risks of the
transactions contemplated by this Agreement.
3.1.2.
Seller is duly and legally authorized to enter into this Agreement and any
ancillary documents contemplated hereunder. Seller represents and warrants that
he has or will have prior to the Closing Date, the authority to sell, transfer
and assign all of the Purchased Assets pursuant to this Agreement free and clear
of all claims, or encumbrances of any kind whatsoever.
3.1.3.
This Agreement and all of the obligations of Seller hereunder are (or when
executed and delivered, will be) the legal, valid and binding obligations of
Seller, enforceable in accordance with the terns of this Agreement, except as
such enforcement may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting the enforcement of creditors' rights generally and
by general equity principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
3.1.4.
The representations and warranties set forth in this Section 3.1 shall survive
the closing of the transactions herein contemplated until the date that is
twelve (12) months following the Closing Date.
3.2.
Representations
and Warranties of TBII: TBII hereby
represents and warrants, as of the date of this Agreement and as of the Closing
Date as follows:
3.2.1.
TBII has taken all corporate action and is duly and legally authorized to enter
into this Agreement.
3.2.2.
This Agreement and all of the obligations of TBII hereunder are (or when
executed and delivered, will be) the legal, valid and binding obligations of
TBII, enforceable in accordance with the terms of this Agreement, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general equity principles (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
4. Miscellaneous:
4.1.
Governing
Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of California without reference to that state's rules
regarding choice of law.
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4.2.
Assignment.
This Agreement may not be assigned by any party hereto without the prior
written consent of all TBII and the Seller.
4.3.
Severability.
If any term, covenant, condition or provision hereof is unlawful, invalid
or unenforceable for any reason whatsoever, and such illegality, invalidity or
unenforceability does not affect the remaining parts of this Agreement, then all
such remaining parts hereof shall be valid and enforceable and have full force
and effect as if the invalid or unenforceable part had not been
included.
4.4.
Rights Cumulative:
Waivers. The rights of each of the parties under this Agreement are
cumulative and may be exercised as often as any party considers appropriate
under the terms and conditions specifically set forth. The rights of each of the
parties hereunder shall not be capable of being waived or varied otherwise than
by an express waiver or variation in writing. Any failure to exercise or any
delay in exercising any of such rights shall not operate as a waiver or
variation of that or any other such right. Any defective or partial exercise of
any of such rights shall not preclude any other or further exercise of that or
any other such right. No act or course of conduct or negotiation on the part of
any party shall in any way preclude such party from exercising any such right or
constitute a suspension or any variation of any such right.
4.5.
Headings. The
headings of the Sections contained in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
4.6.
Construction.
Unless the context otherwise requires, singular nouns and pronouns, when
used herein, shall be deemed to include the plural of such noun or pronoun and
pronouns of one gender shall be deemed to include the equivalent pronoun of the
other gender. Any references herein to a particular Section or Schedule means a
Section of or Schedule to, this Agreement unless another agreement is
specified.
4.7.
Binding Effect.
This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights and benefits hereof, including the Schedules
hereto, shall be binding upon, and shall inure to the benefit of, the
undersigned parties and their respective heirs, executors, administrators,
representatives, successors and permitted assigns.
4.8.
Prior Understandings.
This Agreement supersedes any and all prior discussions and agreements
between the parties hereto with respect to matters contained herein, and this
Agreement contains the sole and entire understanding between the parties hereto
with respect to the transactions contemplated herein.
4.9. Amendment. This
Agreement shall not be amended, altered or otherwise modified except by a
subsequent writing, signed by all of the parties hereto.
4.10.
Counterparts.
This Agreement may be executed in any number of counterparts, each of
which shall constitute one and the same instrument, and either party hereto may
execute this Agreement by signing any such counterpart. A signature page of this
Agreement executed and transmitted via facsimile or electronic PDF file shall be
deemed an original for all purposes.
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4.11.
No Third-Party
Beneficiaries. This Agreement is for the sole and exclusive benefit of
the parties hereto, and none of the provisions of this Agreement shall be deemed
to be for the benefit of any other person or entity.
4.12.
Further Assurances.
Following the Closing, the Seller and TBII shall execute and deliver such
documents, and take such other action, as shall be reasonably requested by the
other party hereto to carry out the transactions contemplated by this
Agreement.
[Signatures
on the Following Page]
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this
Asset Purchase Agreement as of the date first set forth above.
SELLER:
Xxxxxx
Xxxxxx,
an
individual
/s/
Xxxxxx Xxxxxx,
TBII:
TransWorld
Benefit International, Inc., a California corporation
By: /s/
Xxxxxxx Seven
Name:
Xxxxxxx Seven
Its:
Chief Executive, Officer
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Schedule
1.2
Purchased
Assets
|
1.
|
Checkmate
Rewards LLC.
|
2.
Intellectual
property pertaining to Checkmate Rewards including patent and
trademarks.
3.
Contract
with Primary Pay Card.
4.
Contracts
with Wild at Work.
|
5.
|
All
the assets and liabilities transferred from Allureis, Inc. to Sentinel
Technology Services, LLC.
|
|
6.
|
Xxxxxx
Xxxxxx'x best efforts, contacts and expertise in the loyalty and card
industry.
|
|
7.
|
Narrowcasting
— Health Fitness and Wellness programming using interne protocol
television.
|
|
8.
|
Dining
Card — Allows consumer to purchase a set of gift certificates at a fixed
price.
|
|
9.
|
Thanks
Rewards discounted gift certificates offered through a
website
|
|
10.
|
Dineasaurus
— Restaurant search engine with multiple filtering
options.
|
|
11.
|
Red
Carpet ID (RFID) — Customer recognition rewards and communications system
using radio frequency identification
technology.
|
|
12.
|
Advertising
— Online advertising utilizing wild at work and other company
products.
|
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