PURCHASE AND SALE AGREEMENT
Exhibit 10
This Purchase and Sale Agreement
(“Agreement”) is entered into on March 19, 2010, , by and between TBC Global
News Network, Inc., a Nevada corporation (“TGLN”), Sterling Yacht Sales, Inc., a
Florida corporation (“Sterling”), and Sterling stockholders Xxxxx X. XxXxxxxx,
Xx., and Xxxxxx XxXxxxxx, individually (collectively, “Stockholders”), for the
transfer of common stock to Stockholders from TGLN in exchange for all of
Sterling’s outstanding issued and outstanding shares of common stock to TGLN (
hereinafter, all parties to this Agreement referred to as the
“Parties”).
RECITALS
The Stockholders as named above own
100% of Sterling’s issued and outstanding shares of common stock (“Sterling
Shares”). Stockholders desire to transfer all of Sterling’s
outstanding shares to TGLN, and TGLN desires to issue from treasury and transfer
an amount of restricted shares of common stock that equals eighty-two and
one-half percent (82.5%) of its outstanding shares (“TGLN Shares”) to the
Stockholders.
In further consideration of the mutual
covenants, agreements, representations, and warranties contained in this
Agreement, the parties hereto agree as follows:
ARTICLE
ONE: PURCHASE AND SALE; CLOSING
1.1 Purchase and
Sale.
Subject to the terms and conditions
contained in this Agreement, on the Closing (defined below), the Stockholders
shall sell, assign, transfer and deliver to TGLN certificated representing the
Sterling Shares. TGLN shall sell, assign, transfer and deliver to the
Stockholders, individually, issued in the names of Xxxxx XxXxxxxx and Xxxxx
XxXxxxxx, pro rata, certificates representing the TGLN Shares.
1.2. Closing.
The closing (“Closing”) of the sale and
purchase of the Shares shall be the date that all conditions herein have been
satisfied, including completion of the financial statements as specified in
Article Nine of this Agreement, the Parties meet in the offices of Xxxxx X.
Xxxxxxxx, A Professional Law Corporation not later than March 31, 2010 to
transfer the required shares, or at such other time and place as the parties may
agree to in writing, and all required documents have been executed.
1.3 Consideration and Other
Terms of this Agreement
Subject to the terms and conditions set
forth in this Agreement, the Parties agree to the following
conditions:
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TGLN shall nominate and elect Xxxxx
XxXxxxxx to the Board of Directors (the “Board”) and all current Board members
agree to then resign. The current Board members shall then forfeit
fifty percent (50%) of their current TGLN stock holdings: one hundred million
one hundred thousand (100,100,000) shares held by Xxxx Xxxxx, one hundred
million (100,000,000) shares held by Xxxxx Xxxxxx, and one hundred fifty million
five hundred thousand seven hundred eight (150,500,708) shares held by Xxxx
Xxxxxxx. Thus, the total number of shares to be returned to TGLN
treasury shall be one hundred seventy-five million seven hundred fifty thousand
three hundred fifty-four (175,750,354).
Furthermore, the Parties agree that the
loan, and any accompanying documents, in connection with inventory (i.e. certain
vessels/yachts) (see section subsections (a) and (b) below) shall remain in the
names of Xxxxx and Xxxxxx XxXxxxxx individually; however, TGLN agrees to assume
and will be responsible for making the required monthly payments of the
principal balance of this loan in the amount of $933,000.00 until these vessels
in inventory are sold.
Additionally, Stockholders, in their
individual capacity as 82.5% owners of TGLN, agree to the
following:
(a) Pay
all necessary audits of TGLN upon closing of this transaction, and will maintain
the TGLN status as a fully reporting public entity.
(b) Retain
TGLN’s current corporate and securities attorney, Xxxxx X. Xxxxxxxx, under the
same annual fee structure and other terms according to the current retainer
agreement.
(c) Maintain
the relationship with TGLN’s current auditor, Child, Xxx Xxxxxxx & Xxxxxxxx,
PLLC, and assume and pay the current balance in the amount of approximately
$40,000.00 owed for 2009, and $35,000.00 for auditing services during the fiscal
year 2010.
(d) Pay
the one-time business consulting fees in the amount of 150,000,000 free trading
shares of common stock to Kaptiva Group and its assigns and affiliates, such
shares being registered under a Form S-8 registration statement filed with the
Securities and Exchange Commission in exchange for Kaptiva Group assisting TGLN
in its efforts to move the business forward and execute its business plan and
strategies. This consulting work shall extend for a period of twelve
(12) months from the Closing.
(e) Appoint
two (2) additional members to the TGLN Board of Directors within one hundred
fifty (150) days of the Closing, which persons will not include previous Board
members of TGLN who with be resigning.
Furthermore,
the Parties to this Agreement agree to act in good faith and best interests in
order to ensure that this transaction occurs and closes according to the terms
set forth herein.
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ARTICLE
TWO: REPRESENTATIONS AND WARRANTIES
OF
STOCKHOLDERS AND STERLING
Sterling represents and
warrants:
2.1 Validity of
Transaction.
The Stockholders own the number of
Sterling Shares set forth above. The Stockholders have all requisite
power and authority to execute, deliver, and perform this Agreement and to sell
to TGLN the Sterling Shares to be sold by the Stockholders pursuant
hereto. All necessary corporate proceedings or other similar actions
by the Sterling and the Stockholders have been duly taken to authorize the
execution, delivery, and performance of this Agreement and to authorize the sale
of the Sterling Shares by the Stockholders. This Agreement has been
duly authorized, executed, and delivered by Sterling and the Stockholders, is
the legal, valid, and binding obligation of Sterling and the Stockholders, and
is enforceable as to Sterling and the Stockholders in accordance with its terms
except as may be limited by bankruptcy, insolvency, moratorium or other similar
laws affecting creditors’ rights generally, and subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law). No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or of any court or other
tribunal is required by Sterling and the Stockholders for the execution,
delivery, or performance of this Agreement by Sterling and the Stockholders, and
except as would not affect the ability of Sterling or the Stockholders to
perform any of his material obligations under this Agreement. No
consent of any party to any contract, agreement, instrument, lease, license,
arrangement, or understanding to which Sterling or the Stockholders are a party,
or by which any of its properties or assets is bound, shall be required for the
execution, delivery, or performance by Sterling and the Stockholders of this
Agreement, except for such consents as have been obtained at or prior to the
date of this Agreement, and except as would not affect the ability of Sterling
or the Stockholders to perform any of his material obligations under this
Agreement. The execution, delivery, and performance of this Agreement
by Sterling and the Stockholders will not violate, result in a breach of,
conflict with, or (with or without the giving of notice or the passage of time
or both) entitle any party to terminate or call a default under, any such
contract, agreement, instrument, lease, license, arrangement, or understanding,
or violate or result in a breach of any term of the certificate or articles of
incorporation or by-laws (or other organizational document) of Sterling, or
violate, result in a breach of, or conflict with any law, rule, regulation,
order, judgment, or decree binding on Sterling or the Stockholders or to which
any of its/his/her operations, business, properties, or assets is subject,
except as would not affect the ability of Sterling or the Stockholders to
perform any of its material obligations under this Agreement. The
Shares sold by the Stockholders have been duly authorized and validly issued and
are fully paid and nonassessable and have not been issued in violation of any
preemptive right of stockholders or rights of first refusal. Upon the
transfer of the Sterling Shares, sold by the Stockholders to TGLN at the
Closing, TGLN shall acquire good and valid title to the Sterling Shares free and
clear of all claims, liens, pledges, charges, encumbrances, stockholders’
agreements, and voting trusts (other than any created for and in favor of
TGLN).
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2.2 Finder or
Broker.
No Stockholder has incurred any fee as
a result of any negotiation with any finder, broker, intermediary, or similar
person in connection with the transaction contemplated hereby that will result
in any liability to TGLN.
2.3 Accredited
Investor.
Each of the Stockholders is a
“sophisticated” or “accredited” investor, as those terms are defined in
Regulation D promulgated under the Securities Act of 1933, as amended
(“Securities Act”). The Stockholders have received all requested
documents from TGLN, including without limitation, and has had an opportunity to
ask questions of and receive answers from the officers of TGLN with respect to
the business, results of operations, financial condition, and prospects of
TGLN.
2.4 Investment
Intent.
The Stockholders are acquiring the TGLN
Shares for their own account for investment and not with a view to, or for sale
in connection with, any public distribution thereof in violation of the
Securities Act, it being understood that the Stockholders, being affiliates of
TGLN, shall have the right to sell a portion of such shares in their sole
discretion in accordance with the requirements of the minimum six (6) months
hold period under Rule 144. The Stockholders understand that the TGLN
Shares, as of the Closing, have not been registered for sale under the
Securities Act of 1933, as amended (“Securities Act”) or qualified under
applicable state securities laws and that the TGLN Shares shall be delivered to
the Stockholders pursuant to one or more exemptions from the registration or
qualification requirements of such securities laws and that the representations
and warranties contained in this section are given with the intention that TGLN
may rely thereon for purposes of claiming such exemptions. The
Stockholders understand that the TGLN Shares cannot be sold unless registered
under the Securities Act and qualified under state securities laws, or unless an
exemption from such registration and qualification is available
2.5 Transfer of Common
Stock.
The Stockholders shall not sell or
otherwise dispose of any TGLN Shares unless (a) a registration statement with
respect thereto has become effective under the Securities Act and such shares
have been qualified under applicable state securities laws or (b) such
registration and qualification are not required and, if TGLN so requests, there
is presented to TGLN a legal opinion reasonably satisfactory to TGLN to such
effect. The Stockholders consent that the transfer agent for the TGLN
Shares may be instructed not to transfer any TGLN Shares acquired pursuant
hereto unless it receives satisfactory evidence of compliance with the foregoing
provisions, and that there may be endorsed upon any certificate representing the
TGLN Shares acquired pursuant hereto (and any certificates issued in
substitution therefor) the following legend calling attention to the foregoing
restrictions on transferability and stating in substance:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ISSUED WITHOUT REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
QUALIFICATION UNDER THE BLUE SKY LAWS OF ANY JURISDICTION. SUCH
SECURITIES MAY NOT BE SOLD, ASSIGNED, TRANSFERRED OR OTHERWISE DISPOSED OF,
BENEFICIALLY OR ON THE RECORDS OF THE CORPORATION, UNLESS THE SECURITIES
REPRESENTED BY THIS CERTIFICATE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT
AND QUALIFIED UNDER APPLICABLE BLUE SKY LAWS, OR AN EXEMPTION FROM SUCH
REGISTRATION AND QUALIFICATION IS AVAILABLE.”
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TGLN
shall, upon the request of any holder of a certificate bearing the foregoing
legend and the surrender of such certificate, issue a new certificate without
such legend if (i) the security evidenced by such certificate has been
effectively registered under the Securities Act and qualified under any
applicable state securities law and sold by the holder thereof in accordance
with such registration and qualification or (ii) such holder shall have
delivered to TGLN a legal opinion reasonably satisfactory to TGLN to the effect
that the restrictions set forth herein are no longer required or necessary under
the Securities Act or any applicable state law.
2.6 Corporate
Existence.
Sterling is a Florida corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Florida, and has all corporate powers and all governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. Sterling is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where such qualification is necessary, except for those jurisdictions where
failure to be so qualified would not, individually or in the aggregate, be
material to the business of Sterling. Sterling is not in violation of
any of the provisions of its Articles of Incorporation, its Bylaws, or any
regulations governing them.
2.7 Capitalization.
(a)
The
authorized equity of Sterling consists of one thousand (1,000) shares of common
stock, all of which are issued and outstanding.
(b)
To the
knowledge of the Stockholders, (i) all outstanding Sterling Shares have been
duly authorized and validly issued and are fully paid and non-assessable and are
not subject to preemptive rights created under Florida law, its Articles of
Incorporation, its Bylaws, or any regulations governing them, or any agreement
or document to which Sterling is a party or by which it or its assets are bound,
(ii) all outstanding Sterling Shares have been issued and granted in compliance
with all applicable securities law and other legal requirements and all
requirements set forth in applicable agreements or instruments, and (iii) none
of the outstanding Sterling Shares is unvested or is subject to a repurchase
option, risk of forfeiture or other condition providing that the Sterling Shares
may be forfeited or repurchased by Sterling or otherwise vest upon termination
of a Stockholder’s or grantee’s employment, directorship or other relationship
with Sterling under the terms of any restricted stock agreement or other
agreement with Sterling.
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(c) Other
than the Sterling Shares, there are no outstanding (i) shares of equity or
voting securities of Sterling, (ii) securities of Sterling convertible into or
exchangeable for shares of capital stock or voting securities of Sterling or
(iii) options or other rights to acquire from Sterling, or other obligation of
Sterling to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of
Sterling. There are no registration rights, and there is no voting
trust, proxy, rights plan, anti-takeover plan or other agreement or
understanding to which Sterling is a party. There are no outstanding
obligations of Sterling to repurchase, redeem or otherwise acquire any
shares.
2.8 Financial
Statements.
The Sterling Stockholders acknowledges
that the books and records of Sterling fairly and correctly set out and disclose
in all material respects, in accordance with generally accepted accounting
principles (“GAAP”), the financial position of Sterling as at the date hereof,
and all material financial transactions of the Sterling have been accurately
recorded in such books and records. However, completion of an audit
of said books and records, and accompanying pro forma financial statements,
shall be required to be disclosed in an amended Form 8-K filing with the
Securities and Exchange Commission (“SEC”) within seventy-one (71) days from the
filing of the Form 8-K (which must be filed within four (4) business days of the
Closing).
2.9 No Undisclosed Material
Liabilities.
There are no liabilities of Sterling of
any kind whatsoever, whether accrued, contingent, absolute, determined or
determinable, and no existing condition, situation or set of circumstances which
could reasonably result in such a liability, other than:
(a) liabilities
recorded in full or reserved for; and
(b) liabilities
incurred in the ordinary course of the business of Sterling consistent with past
practice, none of which has or may reasonably be expected to have, individually
or in the aggregate, a material adverse effect on the business, results of
operations, or financial condition of Sterling.
2.10 Litigation.
There is no action, suit, investigation
or proceeding (or to the Sterling Stockholders knowledge any basis therefor)
pending against, or to the knowledge of the Sterling Stockholders, threatened
against or affecting, the Stockholders, Sterling or any of their respective
properties before any court or arbitrator or any governmental body, agency or
official which, individually or in the aggregate, if determined or resolved
adversely in accordance with the plaintiff’s demands, could reasonably be
expected to have a material adverse effect on the business, results of
operations, or financial condition of Sterling or which in any manner challenges
or seeks to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement.
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2.11 Absence
of Liens and Encumbrances; Title to Properties.
Sterling has good, valid and marketable
title to all properties and assets used in the conduct of its business free of
all liens, mortgages, pledges, charges, security interests, encumbrances or
other adverse claims of any kind, except as set forth in its financial
statements, including, but not limited to, the following:
(a) 48
foot Fairline Yacht with a fair market value of one million three hundred fifty
thousand dollars ($1,350,000.00) (title in the name of Xxxxx and Xxxxxx
XxXxxxxx, individually)
(b) 35
foot Jupiter Yacht with a fair market value of three hundred thousand dollars
($300,000.00) (title in the name of Xxxxx and Xxxxxx XxXxxxxx,
individually). This boat is current under contract to be sold not
later than March 31, 2010.
(c) Customer
List. Such list includes: the previously sold prospects of the
aforementioned yachts and other vessels during the course of the last 30 years
Stockholders have been doing business as yacht brokers or their family members;
and all vendor, dealer, manufacture relationships formed during the course of
the last 30 years to the present, with whom Stockholders did
business.
2.12 Intellectual
Property.
Sterling has good and valid title to
and ownership of all Intellectual Property (defined herein as trade marks, trade
names or copyrights, patents, domestic or foreign) necessary for its business
and operations, including, but not limited to, Sterling’s family name
(XxXxxxxx). There are no outstanding options, licenses or agreements
of any kind to which Sterling is a party or by which it is bound relating to any
Intellectual Property, whether owned by Sterling or another person. To the
knowledge of the Sterling, the business of Sterling as formerly and presently
conducted did not and does not conflict with or infringe upon any Intellectual
Property right, owned or claimed by another.
2.13 Compliance
with Laws and Court Orders.
(a) Sterling
is not in violation of, and to the knowledge of the Stockholders is not under
investigation with respect to and has not been threatened to be charged with or
given notice of any violation of, any applicable law, rule, regulation,
judgment, injunction, order or decree, except for violations that have not had
and could not reasonably be expected to have, individually or in the aggregate,
a material adverse effect on the business, results of operations or financial
condition of Sterling.
(b) To
the knowledge of the Stockholders, each executive officer and director of
Sterling has complied with all applicable laws in connection with or relating to
actions within the scope of Sterling’s business, except where the failure to
comply would not be material to Sterling. No executive officer or
director of Sterling is a party to or the subject of any pending or threatened
suit, action, proceeding or investigation by any governmental entity that would
have a material adverse effect on the business, results of operations or
financial condition of Sterling.
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2.14 Material
Contracts.
Sterling is not a party to or bound by
any Contract (as defined below) that (a) is a material contract, or (b)
materially limits or otherwise materially restricts Sterling or that would,
after the Closing, materially limit or otherwise materially restrict
TGLN or any of its subsidiaries or any successor thereto, from
engaging or competing in any material line of business in any geographic area or
that contains most favored nation pricing provisions or exclusivity or
non-solicitation provisions with respect to customers. As used
herein, “Contract” shall mean any written or oral agreement, contract,
commitment, lease, license, contract, note, bond, mortgage, indenture,
arrangement or other instrument or obligation. Sterling is not in, or
has received notice of, any violation of or default under (or any condition
which with the passage of time or the giving of notice would cause such a
violation of or default under) any Contract or any other Contract to which it is
a party or by which it or any of its properties or assets is bound, except for
violations or defaults that would not have a material adverse effect on the
business, results of operations or financial condition of Sterling or, after
giving effect to the Closing, TGLN or any of its subsidiaries.
2.15 Taxes.
(a) Sterling
has timely filed all tax returns required to be filed on or before the Closing
and all such tax returns are true, correct and complete in all respects.
Sterling has paid in full on a timely basis all taxes owed by it, whether or not
shown on any tax return, except where the failure to file such return or pay
such taxes would not have a material adverse effect. No claim has
ever been made by any authority in any jurisdiction where Sterling does not file
tax returns that Sterling may be subject to taxation in that
jurisdiction.
(b) There
are no ongoing examinations or claims against Sterling for taxes, and no notice
of any audit, examination or claim for taxes, whether pending or threatened, has
been received. Sterling has not waived or extended the statute of limitations
with respect to the collection or assessment of any tax.
2.16 Interested Party
Transactions.
No officer, director or stockholder of
Sterling or any “affiliate” (as such term is defined in Rule 405 under the
Securities Act) of any such person or Sterling has or has had, either directly
or indirectly, (a) an interest in any person that (i) furnishes or sells
services or products that are furnished or sold or are proposed to be furnished
or sold by Sterling other than Sterling, or (ii) purchases from or sells or
furnishes to Sterling any goods or services, or (b) a beneficial interest in any
contract or agreement to which Sterling is a party or by which it may be bound
or affected (other than routine compensation and expense reimbursement programs
in the ordinary course of business).
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ARTICLE
THREE: REPRESENTATIONS AND WARRANTIES OF TGLN
TGLN represents and warrants
that:
3.1 Validity of
Transaction.
TGLN has all requisite power and
authority to execute, deliver, and perform this Agreement and to issue and sell
to the Stockholders the TGLN Shares. All necessary corporate
proceedings of TGLN have been duly taken to authorize the execution, delivery,
and performance of this Agreement, and the issuance and sale to the Stockholders
of the TGLN Shares. This Agreement has been duly authorized,
executed, and delivered by TGLN, is the legal, valid, and binding obligation of
TGLN, and is enforceable as to TGLN in accordance with its terms, except as may
be limited by bankruptcy, insolvency, moratorium, or other similar laws
affecting creditors’ rights generally, and subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law). No consent, authorization, approval, order,
license, certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or of any court or other
tribunal is required by TGLN for the execution, delivery, or performance of this
Agreement by TGLN, except as would not affect the ability of TGLN to perform any
of its material obligations under this Agreement. No consent of any
party to any contract, agreement, instrument, lease, license, arrangement, or
understanding to which TGLN is a party, or by which any of its properties or
assets is bound, is required for the execution, delivery, or performance by TGLN
of this Agreement, except for such consents as have been obtained at or prior to
the date of this Agreement, and except as would not affect the ability of TGLN
to perform any of its material obligations under this Agreement. The
execution, delivery, and performance of this Agreement by TGLN will not violate,
result in a breach of, conflict with, or (with or without the giving of notice
or the passage of time or both) entitle any party to terminate or call a default
under any contract, agreement, instrument, lease, license, arrangement, or
understanding to which TGLN is a party, or violate or result in a breach of any
term of the Articles of Incorporation or By-laws of TGLN, or violate, result in
a breach of, or conflict with any law, rule, regulation, order, judgment, or
decree binding on TGLN or to which any of its operations, business, properties,
or assets is subject, except as would not affect the ability of TGLN to perform
any of its material obligations under this Agreement. The shares of
TGLN Common Stock have been duly authorized and, upon receipt by the
Stockholders from TGLN of the stock certificates representing the TGLN Shares
being sold pursuant to this Agreement, will be validly issued, fully paid, and
nonassessable, will not have been issued in violation of any preemptive right of
stockholders or rights of first refusal, and the Stockholders will have good
title to the TGLN Shares, free and clear of all liens, security Shares, pledges,
charges, encumbrances, stockholders agreements, and voting trusts (other than
any created by the Stockholders).
3.2 Finder or
Broker.
Neither TGLN nor any person acting on
behalf of TGLN has negotiated with any finder, broker, intermediary, or similar
person in connection with the transaction contemplated herein.
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3.3 Accredited
Investor.
TGLN is a “sophisticated investor,” as
that term is defined in Rule 501 of Regulation D promulgated under the
Securities Act.
3.4 Investment
Intent.
TGLN is acquiring the Sterling Shares
for its own account for investment and not with a view to, or for sale in
connection with, any public distribution thereof in violation of the Securities
Act. TGLN understands that it must bear the economic risk of its
investment in Sterling for an indefinite period of time, and the Sterling Shares
being purchased from the Stockholders cannot be sold unless registered under the
Securities Act and qualified under state securities laws, unless an exemption
from such registration and qualification is available.
3.5 Full
Disclosure.
All documents filed by TGLN pursuant to
the Securities Exchange Act of 1934, as amended (“Exchange Act”), since December
31, 2003 (“TGLN Exchange Act Documents”) (i) were prepared in accordance with
the requirements of the Exchange Act and the rules and regulations thereunder,
(ii) did not at the time they were filed contain any untrue statement of a
material fact, and (iii) did not at the time they were filed omit to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. The TGLN
Exchange Act Documents do not omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. So far as TGLN is aware, from the date as of
which information is given in the most recent report filed by TGLN under the
Exchange Act to the date of this Agreement, there has not been any material
adverse change in, or any adverse development which materially affects, the
business, results of operations, or financial condition of TGLN and its
subsidiaries taken as a whole.
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3.6
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Other
Stockholders.
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TGLN has not entered into any other
agreement, other than this Agreement with the Stockholders, with respect to the
acquisition of Sterling Shares by TGLN.
3.7 TGLN’s Corporate
Existence.
TGLN is a corporation duly
incorporated, validly existing and in good standing under the laws of Nevada and
has all corporate powers and all governmental licenses, authorizations, permits,
consents and approvals required to carry on its business as now
conducted. TGLN is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where such
qualification is necessary, except for those jurisdictions where failure to be
so qualified would not, individually or in the aggregate, be materially adverse
to the business of TGLN. TGLN is not in violation of any of the
provisions of its Articles of Incorporation or its Bylaws.
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3.8 Capitalization.
(a) As
of the date of this Agreement, the authorized capital stock of TGLN consists of
five billion (5,000,000,000) shares of TGLN common stock. As of the
date of this Agreement, there are five hundred sixty-five million six hundred
fifty-two thousand eight hundred eighty-two (565,652,882) shares of TGLN common
stock issued and outstanding.
(b) All
outstanding shares of capital stock of TGLN have been duly authorized and
validly issued and are fully paid and non-assessable and are not subject to
preemptive rights created under Nevada, the Articles of Incorporation or Bylaws
of TGLN or any agreement or document to which TGLN is a party or by which it or
its assets are bound. All outstanding shares of capital stock
of TGLN have been issued and granted in compliance with all applicable
securities law and other legal requirements and all requirements set forth in
applicable agreements or instruments. None of the outstanding
TGLN Securities (as defined below) is unvested or is subject to a repurchase
option, risk of forfeiture or other condition providing that such TGLN
Securities may be forfeited or repurchased by TGLN or otherwise vest upon
termination of stockholder’s or grantee’s employment, directorship or other
relationship with TGLN or a TGLN Subsidiary (as defined below) under the terms
of any restricted stock agreement or other agreement with TGLN. No
TGLN debt has voting rights. As used herein, “TGLN Subsidiary” shall
mean any entity of which securities or other ownership Shares having ordinary
voting power to elect a majority of the board or directors or other persons
performing similar functions are at the time directly or indirectly owned by
TGLN.
(c) Except
as set forth in this Section, there are no outstanding (i) shares of capital
stock or voting securities of TGLN, (ii) securities of TGLN convertible into or
exchangeable for shares of capital stock or voting securities of TGLN or (iii)
options or other rights to acquire from TGLN, or other obligation of TGLN to
issue, any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of TGLN (the items in
clauses (a), (b) and (c) of this Section 3.8 being referred to collectively as
the “TGLN Securities”). There are no registration rights and there is
no voting trust, proxy, rights plan, anti-takeover plan or other agreement or
understanding to which TGLN or any of TGLN’s Subsidiaries is a party or by which
it is bound with respect to any TGLN Securities. There are no
outstanding obligations of TGLN or any TGLN Subsidiary to repurchase, redeem or
otherwise acquire any TGLN Securities.
3.9 Litigation.
There is no action, suit, investigation
or proceeding (or to TGLN’s knowledge any basis therefor) pending against, or to
the knowledge of TGLN, threatened against or affecting, TGLN or any TGLN
Subsidiary or any of their respective properties before any court or arbitrator
or any governmental body, agency or official which, individually or in the
aggregate, if determined or resolved adversely in accordance with the
plaintiff’s demands, could reasonably be expected to have a material adverse
effect on the business, results of operations, or financial condition of TGLN
and its subsidiaries taken as a whole or which in any manner challenges or seeks
to prevent, enjoin, alter or materially delay the transactions contemplated by
this Agreement.
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3.10 Compliance with Laws and
Court Orders.
(a) Neither
TGLN nor any TGLN Subsidiary is in violation of, and has not since December 31,
2003 violated, and to the knowledge of TGLN is not under investigation with
respect to and has not been threatened to be charged with or given notice of any
violation of, any applicable law, rule, regulation, judgment, injunction, order
or decree, except for violations that have not had and could not reasonably be
expected to have, individually or in the aggregate, a material adverse effect on
the business, results of operations or financial condition of TGLN and its
subsidiaries taken as a whole.
(b) TGLN
and each of its officers and directors have complied in all material respects
with the applicable provisions of the Xxxxxxxx-Xxxxx Act of
2002. TGLN has disclosed all of the information required to be
disclosed by TGLN pursuant to the certification requirements contained in Form
10-K and Form 10-Q under the Exchange Act. Since the enactment of
Xxxxxxxx-Xxxxx, neither TGLN nor any of its Affiliates has made any loans to any
executive officer or director of TGLN.
(c) Each
executive officer and director of TGLN has complied with all applicable laws in
connection with or relating to actions within the scope of TGLN’s business,
except where the failure to comply would not be material to TGLN. No
executive officer or director of TGLN is a party to or the subject of any
pending or threatened suit, action, proceeding or investigation by any
governmental entity that would have a material adverse effect on the business,
results of operations or financial condition of TGLN and its subsidiaries taken
as a whole, except as disclosed in TGLN Exchange Act Documents.
3.11 Financial
Statements.
The audited consolidated financial
statements and unaudited consolidated interim financial statements of TGLN
included in TGLN’s filings under the Exchange Act (collectively, “TGLN Financial
Statements”) (a) were prepared in accordance with and accurately reflect in all
material respects, TGLN’s books and records as of the times and for the periods
referred to therein, (b) complied in all material respects with applicable
accounting requirements and the published rules and regulations of
the SEC with respect thereto in effect during the periods included and (c)
fairly present in all material respects, in conformity with United States
generally accepted accounting principles applied on a consistent basis during
the periods involved (except as may be indicated in the notes thereto and except
in the unaudited financial statements as may be permitted by Form 10-Q), the
consolidated financial position of TGLN and its consolidated subsidiaries as of
the dates thereof and their consolidated results of operations and cash flows
for the periods then ended (subject to normal year end adjustments in the case
of any unaudited interim financial statements which were not and are not
expected to be material to TGLN).
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3.12 No Undisclosed Material
Liabilities.
There are no liabilities of TGLN or any
TGLN Subsidiary of any kind whatsoever, whether accrued, contingent, absolute,
determined or determinable, and no existing condition, situation or set of
circumstances which could reasonably result in such a liability, other
than:
(a) liabilities
recorded in full or reserved for in the unaudited financial statements included
in the TGLN Exchange Act Documents filed with respect to the periods ended
September 30, 2009 (“TGLN Balance Sheet Date”); and
(b) liabilities
incurred in the ordinary course of the business of TGLN consistent with past
practice since the TGLN Balance Sheet Date, none of which has or may reasonably
be expected to have, individually or in the aggregate, a material adverse effect
on the business, results of operations, or financial condition of TGLN and its
subsidiaries taken as a whole. In this regard, at Closing TGLN shall
provide to Stockholders a current list of creditors of TGLN.
ARTICLE
FOUR: COVENANTS OF STOCKHOLDERS AND STERLING
4.1 Fulfillment of Closing
Conditions.
At and prior to the Closing, the
Stockholders shall cause Sterling to use commercially reasonable efforts to
fulfill the conditions specified in this Agreement. In connection
with the foregoing, the Stockholders shall (a) refrain from any actions that
would cause any of their representations and warranties to be inaccurate in any
material respect as of the Closing, (b) execute and deliver the applicable
agreements and other documents referred to herein, (c) comply in all material
respects with all applicable laws in connection with its execution, delivery and
performance of this Agreement and the transactions, (d) use commercially
reasonable efforts to obtain in a timely manner all necessary waivers, consents
and approvals required under any laws, contracts or otherwise, and (e) use
commercially reasonable efforts to take, or cause to be taken, all other actions
and to do, or cause to be done, all other things reasonably necessary, proper or
advisable to consummate and make effective as promptly as practicable the
transactions.
4.2 Access to
Information.
From the date of this Agreement to the
Closing, the Stockholders shall provide to TGLN and its officers, employees,
counsel, accountants and other representatives access to and the right to
inspect, during normal business hours, all of the assets, records, contracts and
other documents relating to Sterling as the other party may reasonably
request. TGLN shall not use such information for purposes other than
in connection with the transactions contemplated by this Agreement.
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4.3 No
Solicitation.
From and after the date hereof until
the earlier of the Termination Date or the date of termination of this Agreement
pursuant to Section 13, without the prior written consent of the TGLN, the
Stockholders shall not, and shall not authorize or permit their representatives
to, directly or indirectly, solicit, initiate or encourage (including by way of
furnishing information) or take any other action to facilitate knowingly any
inquiries or the making of any proposal that constitutes or may reasonably be
expected to lead to an Acquisition Proposal (defined below) from any person, or
engage in any discussion or negotiations relating thereto or accept any
Acquisition Proposal. If the Stockholders receive any such inquiries,
offers or proposals, the Stockholders shall (a) notify TGLN orally and in
writing of any such inquiries, offers or proposals (including the terms and
conditions of any such proposal and the identity of the person making it),
within forty-eight (48) hours of the receipt thereof, (b) keep TGLN informed of
the status and details of any such inquiry, offer or proposal, and (c) give TGLN
five (5) days’ advance notice of any agreement to be entered into with, or any
information to be supplied to, any person making such inquiry, offer or
proposal. As used herein, “Acquisition Proposal” means a proposal or
offer (other than pursuant to this Agreement) for a tender or exchange offer,
merger, consolidation or other business combination involving any or any
proposal to acquire in any manner a substantial equity interest in, or all or
substantially all of the assets of Sterling. Notwithstanding the
foregoing, the Stockholders shall remain free to participate in any discussions
or negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner, any effort or attempt by any
person to do or seek any of the foregoing to the extent their fiduciary duties
may require.
4.4 Confidentiality.
The Stockholders agree that after
receipt (a) all information received by TGLN pursuant to this Agreement and (b)
any other information that is disclosed by TGLN shall be considered confidential
information until such time as such information otherwise becomes publicly
available. The Stockholders further agrees that they shall hold all
such confidential information in confidence and shall not disclose any such
confidential information to any third party except as required by law or
regulation (including the listing rules); provided that to the extent possible
TGLN shall have been provided with reasonable notice and the opportunity to seek
a protective order to the extent possible prior to such disclosure, other than
its counsel or accountants nor shall it use such confidential information for
any purpose other than its investment in TGLN; provided, however, that the
foregoing obligation to hold in confidence and not to disclose confidential
information shall not apply to any information that (1) was known to
the public prior to disclosure by TGLN, (2) becomes known to the public through
no fault of the Stockholders, (3) is disclosed to Sterling on a non-confidential
basis by a third party having a legal right to make such disclosure or (4) is
independently developed by Sterling.
4.5 Transfer of Assets and
Business.
The Stockholders shall, and shall cause
Sterling to, take such reasonable steps as may be necessary or appropriate, in
the judgment of TGLN, so that TGLN shall be placed in actual possession and
control of all of the assets and the business of Sterling, and Sterling shall be
owned and operated as a wholly owned subsidiary of TGLN.
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4.6 Disclosure of
Fundraising.
The Stockholders shall disclose to TGLN
any fund raising activities, which shall occur prior to the
Closing. Further, the Stockholders shall assure that all regulations,
rules and laws governing such fundraising are complied with and that such funds
will only be used in the furtherance of Sterling’s corporate purpose and
business plan. Prior written approval of TGLN is required to use
funds for any other purposes.
ARTICLE
FIVE: COVENANTS OF TGLN
5.1 Fulfillment of Closing
Conditions.
At and prior to the Closing, TGLN shall
use commercially reasonable efforts to fulfill the conditions specified in this
Agreement to the extent that the fulfillment of such conditions is within its
control. In connection with the foregoing, TGLN shall (a) refrain
from any actions that would cause any of its representations and warranties to
be inaccurate in any material respect as of the Closing, (b) execute and deliver
the applicable agreements and other documents referred to herein, (c) comply in
all material respects with all applicable laws in connection with its execution,
delivery and performance of this Agreement and the transactions, (d) use
commercially reasonable efforts to obtain in a timely manner all necessary
waivers, consents and approvals required under any laws, contracts or otherwise,
and (e) use commercially reasonable efforts to take, or cause to be taken, all
other actions and to do, or cause to be done, all other things reasonably
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions.
5.2 Access to
Information.
From the date of this Agreement to the
Closing, TGLN shall cause the company to provide to the Stockholders and their
employees, counsel, accountants and other representatives access to and the
right to inspect, during normal business hours, all of the assets, records,
contracts and other documents relating to TGLN as the other party may reasonably
request. The Stockholders shall not use such information for purposes
other than in connection with the transactions contemplated by this
Agreement.
5.3 Confidentiality.
TGLN agrees that after receipt (a) all
information received by it pursuant to this Agreement and (b) any other
information that is disclosed by the Stockholders to it shall be considered
confidential information until such time as such information otherwise becomes
publicly available. TGLN further agrees that it shall hold all such
confidential information in confidence and shall not disclose any such
confidential information to any third party except as required by law or
regulation (including the listing rules); provided that to the extent possible
the Stockholders shall have been provided with reasonable notice and the
opportunity to seek a protective order to the extent possible prior to such
disclosure, other than its counsel or accountants nor shall it use such
confidential information for any purpose other than its investment in Sterling;
provided, however, that the foregoing obligation to hold in confidence and not
to disclose confidential information shall not apply to any information that (1)
was known to the public prior to disclosure by the Stockholders, (2) becomes
known to the public through no fault the Stockholders, (3) is disclosed to TGLN
on a non-confidential basis by a third party having a legal right to make such
disclosure or (4) is independently developed by TGLN.
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5.4 Disclosure
of Fundraising.
TGLN shall disclose to the Stockholders
any fund raising activities, which shall occur prior to the
Closing. Further, TGLN shall assure that all regulations, rules and
laws governing such fundraising are complied with and that such funds will only
be used in the furtherance of TGLN’s corporate purpose and business
plan. Prior written approval of the Stockholders shall be required to
use funds for any other purposes.
ARTICLE
SIX: MUTUAL COVENANTS
6.1 Disclosure of Certain
Matters.
The Stockholders on the one hand, and
TGLN, on the other hand, shall give TGLN and the Stockholders, respectively,
prompt notice of any event or development that occurs prior to the Closing that
(a) had it existed or been known on the date hereof would have been required to
be disclosed by such party under this Agreement, (b) would cause any of the
representations and warranties of such party contained herein to be inaccurate
or otherwise misleading, except as contemplated by the terms hereof, or (c)
gives any such party any reason to believe that any of the conditions set forth
in this Agreement will not be satisfied prior to the Termination
Date.
6.2 Public
Announcements.
The Stockholders and TGLN shall consult
with each other before issuing any press release or making any public statement
with respect to this Agreement and the transactions and, except as may be
required by applicable law or regulation, a party hereto shall not issue any
such press release or make any such public statement without the consent of the
other party hereto.
6.3 Confidentiality.
If the transactions are not
consummated, each party shall treat all information obtained in its
investigation of another party or any affiliate thereof, and not otherwise known
to them or already in the public domain, as confidential and shall not use or
otherwise disclose such information to any third party except as required by law
or regulation (including the listing rules), and shall return to such other
party or affiliate all copies made by it or its representatives of confidential
information provided by such other party or affiliate.
ARTICLE
SEVEN: CONDITIONS PRECEDENT TO OBLIGATIONS
OF
STOCKHOLDERS AND STERLING
All obligations of the Stockholders and
Sterling to consummate the Transactions are subject to the satisfaction prior
thereto of each of the following conditions:
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7.1 Representations and
Warranties.
The representations and warranties of
TGLN contained in this Agreement shall be true and correct on the date hereof
and (except to the extent such representations and warranties speak as of an
earlier date) shall also be true and correct on and as of the Closing with the
same force and effect as if made on and as of the Closing.
7.2 Agreements, Conditions and
Covenants.
TGLN shall have performed or complied
with all agreements, conditions and covenants required by this Agreement to be
performed or complied with by it on or before the Closing.
7.3 Legality.
No law or court order shall have been
enacted, entered, promulgated or enforced by any court or governmental authority
that is in effect and has the effect of making the purchase and sale of the
assets illegal or otherwise prohibiting the consummation of such purchase and
sale.
ARTICLE
EIGHT: CONDITIONS PRECEDENT TO OBLIGATIONS OF TGLN
All obligations of TGLN to consummate
the transactions are subject to the satisfaction (or waiver) prior thereto of
each of the following conditions:
8.1 Representations and
Warranties.
The representations and warranties of
the Stockholders contained in this Agreement shall be true and correct on the
date hereof and (except to the extent such representations and warranties speak
as of an earlier date) shall also be true and correct on and as of the Closing,
except for changes contemplated by this Agreement, with the same force and
effect as if made on and as of the Closing.
8.2 Agreements, Conditions and
Covenants.
The Stockholders shall have performed
or complied in all material respects with all agreements, conditions and
covenants required by this Agreement to be performed or complied with by them on
or before the Closing.
8.3 Legality.
No law or court order shall have been
enacted, entered, promulgated or enforced by any court or governmental authority
that is in effect and (a) has the effect of making the purchase and sale of the
assets illegal or otherwise prohibiting the consummation of such purchase and
sale or (b) has a reasonable likelihood of causing a material adverse
effect.
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ARTICLE
NINE: POST-CLOSING OBLIGATIONS
The Stockholders shall cause an audit,
and accompanying pro forma financial statements, of Sterling to be completed
within seventy-one (71) days of the filing of the Form 8-K disclosing the
transaction represented by this Agreement to comply with applicable provisions
of Regulation S-X in connection with the acquisition of one company by
another.
ARTICLE
TEN: SURVIVAL OF REPRESENTATIONS AND
WARRANTIES;
INDEMNIFICATION
10.1 Nature and
Survival.
The covenants, representations and
warranties of the parties hereunder and all documents delivered pursuant hereto
shall survive the Closing for a period of twelve (12) months following the
Closing and all inspections, examinations or audits on behalf of the parties
whether conducted before or after the Closing.
10.2 Stockholders and Sterling
Indemnification.
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(a)
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Subject
to Section 10.3, each Stockholder agrees to indemnify and hold harmless
TGLN against and in respect of its pro rata share (determined on the basis
of the percentage of the total number of shares of TGLN Shares that were
issued to such Stockholder) of any and all Damages. “Damages,” as
used herein, shall include any claim, action, demand, loss, cost, expense,
liability (joint or several), penalty and other damage, including, without
limitation, reasonable counsel fees and other costs and expenses
reasonably incurred in investigation or in attempting to avoid the same or
oppose the imposition thereof or in enforcing this indemnity, resulting to
TGLN from (i) any inaccurate representation made by or on behalf of
Sterling or a Stockholder in this Agreement or any certificate or other
document referenced in, this Agreement and delivered pursuant hereto, (ii)
the breach of any of the warranties or agreements made by or on behalf of
Sterling or a Stockholder in this Agreement or any certificate or other
document referenced in this Agreement and delivered pursuant hereto, or
(iii) the breach or default in the performance by a Stockholder of any of
the obligations to be performed by any of them
hereunder.
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(b)
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If
any claim shall be asserted against TGLN by a third party for which TGLN
intends to seek indemnification from the Stockholders under this Section
10.2, TGLN shall given written notice to the Stockholders of the nature of
the claim asserted within forty-five (45) days after any executive officer
of TGLN learns of the assertion thereof and determines that TGLN may have
a right of indemnification with respect thereto, but the failure to give
this notice will not relieve the Stockholders of any liability hereunder
in respect of this claim. TGLN shall have the exclusive right
to conduct, through counsel of its own choosing, which counsel is approved
by the Stockholders (which approval may not be unreasonably withheld), the
defense of any such claim or action, and may compromise or settle such
claims or actions with the prior consent of the Stockholder Representative
(which shall not be unreasonably
withheld).
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18
10.3 Satisfaction of Stockholders
and Sterling Indemnification.
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(a)
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Any
Damages incurred, paid or borne by TGLN for which it is entitled to
indemnification from any Stockholder under this Section shall be
satisfied, in whole or in part, solely by such Stockholder delivering to
TGLN for cancellation, shares of TGLN Common Stock, without further
recourse to any Stockholder; provided, however, that
each Stockholder’s indemnification obligation shall be unlimited (and
shall be satisfied by a cash payment to the extent that TGLN Shares are
insufficient) with respect to Damages arising out of the intentional fraud
of such Stockholder. In the event that any Stockholder elects
to return TGLN Shares to satisfy any indemnification obligation, each such
TGLN Shares shall be valued at its Current Market Value (as defined below)
as of the date such shares are tendered to TGLN. Such Seller
shall also pay or reimburse TGLN for the out-of-pocket expenses (including
without limitation any fees payable to the transfer agent of the shares)
of canceling such returned shares.
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(b)
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“Current
Market Value” of the TGLN Common Stock as of a particular date shall mean
the average of the price of a share of TGLN Shares, determined on the
basis of the last reported sales price on the Over-the-Counter Bulletin
Board for the ten (10) consecutive trading days preceding such date
(“Measurement Days”); or, if such shares are not traded on the
Over-the-Counter Bulletin Board, the Current Market Value will be
determined by an independent reputable valuation and appraisal company
mutually agreed upon by TGLN and the Stockholders (which appraiser shall
be instructed to disregard any minority interest discount), and if no
agreement can be reached within a thirty (30)-day period, by the average
of the two Current Market Values as determined by independent reputable
valuation and appraisal companies retained by each of TGLN and the
Stockholders; provided, however, that
the aggregate fees and expenses of any such independent valuation and
appraisal company or companies shall be shared evenly between TGLN, on the
one hand, and the Stockholders, on the
other.
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10.4 TGLN
Indemnification.
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(a)
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Subject
to subsection (b) below, TGLN shall indemnify and hold the Stockholders
and Sterling harmless against and in respect of all Stockholders and
Sterling Damages. “Stockholders and Sterling Damages” shall
mean any claim, action, demand, loss, cost, expense, liability (joint or
several), penalty and other damage, including, without limitation,
reasonable counsel fees, and other costs and expenses reasonably incurred
in investigating or in attempting to avoid the same or oppose the
imposition thereof or in enforcing this indemnity, resulting to a
Stockholder from (i) any inaccurate representation made by TGLN in this
Agreement or any certificate or other document referenced in this
Agreement and delivered by it pursuant hereto, (ii) breach of any of the
warranties or agreements made by TGLN in this Agreement or any certificate
or other document referenced in this Agreement and delivered by it
pursuant hereto, or (iii) breach or default in the performance by TGLN of
any of the obligations to be performed by TGLN hereunder. TGLN
agrees to pay or reimburse the Stockholders for any payment made or amount
payable or loss suffered or incurred by the Stockholders at any time from
and after the Closing in respect of any Stockholder Damages to which the
foregoing indemnity relates.
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(b)
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If
any claim shall be asserted against the Stockholders and/or Sterling by a
third party for which the Stockholders and/or Sterling intend to seek
indemnification from TGLN under this Section 10.4, the Stockholders shall
given written notice to TGLN of the nature of the claim asserted within
forty-five (45) days after the Stockholders learn of the assertion thereof
and determines that the Stockholders and/or Sterling may have a right of
indemnification with respect thereto, but the failure to give this notice
will not relieve TGLN of any liability hereunder in respect of this
claim. the Stockholders and/or Sterling shall have the
exclusive right to conduct, through counsel of their own choosing, which
counsel is approved by TGLN (which approval may not be unreasonably
withheld), the defense of any such claim or action, and may compromise or
settle such claims or actions with the prior consent of TGLN (which shall
not be unreasonably withheld).
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10.5 Satisfaction of TGLN
Indemnification.
Any
Stockholder Damages incurred, paid or borne by a Stockholder and/or Sterling for
which it is entitled to indemnification from TGLN under this Section shall be
satisfied, in whole or in part, solely by TGLN delivering to the Stockholders,
additional shares of TGLN common stock up to an aggregate maximum for all
Stockholders of ten percent (10%) of the amount of TGLN Shares delivered on the
Closing, without further recourse to TGLN; provided, however, that TGLN’s
indemnification obligation shall be unlimited with respect to Stockholder
Damages arising out of the common-law fraud of TGLN. In the event
that TGLN elects to deliver shares of TGLN common stock to satisfy any
indemnification obligation, each such share of TGLN common stock shall be valued
at its Current Market Value as of the date such shares are tendered by
TGLN.
10.6 Xxxx Xxxxxxx
Indemnification.
As part
of this Agreement TGLN, by and through Board Member Xxxx Xxxxxxx, shall
indemnify the Stockholders and Sterling regarding any debts of TGLN that
existing on the date of this Agreement.
ARTICLE
ELEVEN: TERMINATION
11.1 Grounds for
Termination.
This Agreement may be terminated at any
time before the Closing:
(a) By mutual written
consent of the Stockholders and TGLN;
(b) By
the Stockholders or TGLN; provided, however, that the right to terminate this
Agreement shall not be available to any party whose failure to fulfill any
obligation under this Agreement has been the cause of, or resulted in, the
failure of the Closing to occur;
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(c) By
the Stockholders or TGLN if a court of competent jurisdiction or governmental,
regulatory or administrative agency or commission shall have issued a court
order (which court order the parties shall use commercially reasonable efforts
to lift) that permanently restrains, enjoins or otherwise prohibits the
transactions, and such court order shall have become final and
non-appealable;
(d) By
TGLN, if the Stockholders shall have breached, or failed to comply with, any of
its obligations under this Agreement or any representation or warranty made by
the Stockholders shall have been incorrect when made, and such breach, failure
or misrepresentation is not cured within twenty (20) days after notice thereof,
including failure to keep the TGLN current in its filings and honor existing
agreements; and
(e) By
the Stockholders, if TGLN shall have breached, or failed to comply with any of
its obligations under this Agreement or any representation or warranty made by
it shall have been incorrect when made, and such breach, failure or
misrepresentation is not cured within twenty (20) days after notice thereof, and
in either case, any such breaches, failures or misrepresentations, individually
or in the aggregate, results or would reasonably be expected to affect
materially and adversely the benefits to be received by the Stockholders
hereunder.
11.2 Effect of
Termination.
If this Agreement is terminated
pursuant to Section 13.1, the agreements contained in Section 6.3 shall survive
the termination hereof and any party may pursue any legal or equitable remedies
that may be available if such termination is based on a breach of another
party.
ARTICLE
TWELVE: MISCELLANEOUS
PROVISIONS
12.1 Expenses.
Each party shall pay all costs and
expenses incurred or to be incurred by it in negotiating and preparing this
Agreement and in signing and carrying out the transactions contemplated by this
Agreement.
12.2 Entire Agreement;
Amendment.
This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
thereof. This Agreement supersedes all prior agreements and
understandings among the parties hereto with respect to the subject matter
hereof and thereof. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein and
therein. This Agreement may be amended, modified or supplemented only
by a written instrument duly executed by each of the parties
hereto.
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12.3 Benefits;
Successors.
This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective heirs, legal
representatives, successors and permitted assigns of the
parties. Nothing in this Agreement shall confer any rights upon any
person other than the Stockholders and TGLN and their respective heirs, legal
representatives, successors and permitted assigns.
12.4 Assignment;
Waiver.
No party hereto shall assign this
Agreement or any right, benefit or obligation hereunder. Any term or
provision of this Agreement may be waived at any time by the party entitled to
the benefit thereof by a written instrument duly executed by such
party. However, failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
12.5 Further
Assurances.
At and after the Closing, the
Stockholders and TGLN shall execute and deliver any and all documents and take
any and all other actions that may be deemed reasonably necessary by their
respective counsel to complete the transactions.
12.6 Rights Cumulative;
Waivers.
The rights of each of the parties under
this Agreement are cumulative. The rights of each of the parties
hereunder shall not be capable of being waived or varied other 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.
12.7 Interpretation.
Unless the context of this Agreement
clearly requires otherwise, (a) references to the plural include the singular,
the singular the plural, the part the whole, (b) references to any gender
include all genders, (c) “or” has the inclusive meaning frequently identified
with the phrase “and/or,” (d) “including” has the inclusive meaning frequently
identified with the phrase "but not limited to" and (e) references to
“hereunder” or “herein” relate to this Agreement. The section and
other headings contained in this Agreement are for reference purposes only and
shall not control or affect the construction of this Agreement or the
interpretation thereof in any respect. Section, subsection, Schedule and Exhibit
references are to this Agreement unless otherwise specified. Each
accounting term used herein that is not specifically defined herein shall have
the meaning given to it under GAAP. Any reference to a party’s being
satisfied with any particular item or to a party's determination of a particular
item presumes that such standard will not be achieved unless such party shall be
satisfied or shall have made such determination in its sole or complete
discretion.
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12.8 Severability.
If any provision of this Agreement
shall be invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall not affect the validity or enforceability of the
remainder of this Agreement in that jurisdiction or the validity or
enforceability of any provision of this Agreement in any other
jurisdiction.
12.9 Counterparts.
This Agreement may be executed in two
or more counterparts, each of which shall be binding as of the date first
written above, and all of which shall constitute one and the same
instrument. Each such copy shall be deemed an original.
12.10 Notices.
All notices that are required or
permitted hereunder shall be in writing and shall be sufficient if personally
delivered or sent by mail, facsimile message or Federal Express or other
delivery service. Any notices shall be deemed given upon the earlier
of the date when received at, or the third day after the date when sent by
registered or certified mail or the day after the date when sent by Federal
Express to, the address or fax number set forth below, unless such address or
fax number is changed by notice to the other party hereto:
If to
Stockholders and Sterling:
Sterling
Yacht Sales, Inc.
2300 X.X.
00xx Xxxxx
Xxxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention:
Xxxxx X. XxXxxxxx, Xx., President
Telephone:
(000) 000-0000
Facsimile: (000) 000-0000
If to
TGLN:
130 Xxxx
Xxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Chief
Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
23
With copies to:
Xxxxx X. Xxxxxxxx, A Professional Law
Corporation
27000 Xxxxx Xxxxxx, Xxxxx
0000
Xxx Xxxx Xxxxxxxxxx, Xxxxxxxxxx
00000
Attention: Xxxxx
X. Xxxxxxxx, Esq.
Telephone:
(000) 000-0000
Facsimile: (000) 000-0000
12.11 Governing Law;
Venue.
The laws
of the State of Nevada shall govern all issues concerning the relative rights of
the Company and its stockholders. All other questions shall be
governed by and interpreted in accordance with the laws of the State of Nevada
without regard to the principles of conflict of laws. Each of the
Parties hereto agrees that any action or suit which may be brought by any Party
hereto against any other Party hereto in connection with this Agreement or the
transactions contemplated hereby may be brought only in a federal or state court
in Xxxxx County, Nevada.
|
12.12
|
Attorneys’ Fees and
Costs
|
In the event there is a dispute arising
out of or pertaining to the within Agreement, the Parties agree that the
prevailing party in any such dispute shall be entitled to the reasonable court
costs and attorneys’ fee as determined by a court of law.
IN WITNESS WHEREOF, this Agreement has
been executed by the parties hereto as of the day and year first written
above.
By: /s/ Xxxx
Xxxxxxx
Xxxx Xxxxxxx, Chief Executive
Officer
STERLING YACHT SALES,
INC.
By: /s/ Xxxxx X.
XxXxxxxx, Xx.
By: Xxxxx X. XxXxxxxx, Xx.,
President
STOCKHOLDERS
/s/ Xxxxx X.
XxXxxxxx, Xx.
Xxxxx X. XxXxxxxx,
Xx.
/s/ Xxxxxx
XxXxxxxx
Xxxxxx XxXxxxxx
24
