Exhibit 10.1
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ACQUISITION AGREEMENT
By and Between
T&G2, INC.
and
XXXXXXXXXX & TEAM GMBH
Dated as of March 29, 2004
ACQUISITION AGREEMENT
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THIS ACQUISITION AGREEMENT is made and entered into this 15th day of
March, 2004 (the "Agreement") by and between T&G2, Inc. a Nevada corporation
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("Buyer"), and Xxxxxxxxxx & Team, GmbH, a German company ("Seller").
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WHEREAS, Seller operates a marketing an distribution company located at
Xxxxxxxxxxxxxx Xxxxxxx 00, Xxxxxxxxx xx Xxxx, Xxxxxxx 60598 (the "Business");
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and
WHEREAS, the purchase price for all of the assets of Buyer by Seller,
together with 100% (one hundred percent) of all equity interest of Seller (the
"Purchased A&E") is Ten Million Shares of Buyer's restricted Class A Common
Stock (the "Acquisition Shares"); and
WHEREAS, subject to the foregoing, Seller desires to sell and Buyer
desires to purchase the Purchased A&E in accordance with the terms, conditions,
and agreements hereinafter contained.
NOW THEREFORE, in consideration of the mutual premises and the covenants
and promises hereinafter contained, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
intending to be legally bound hereby agree as follows:
Section 1. Sale and Purchase of Assets and Equity.
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1.1 Sale of Purchased Assets.
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On the terms and subject to the conditions set forth in this Agreement,
at the Closing, Seller will sell, convey, transfer and assign to Buyer, and
Buyer will purchase and accept from Seller all right, title and interest in and
to all assets of Seller (other than the Excluded Assets, as hereinafter defined)
used in the operation of the Business, (collectively, the "Purchased Assets"),
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including, without limitation, the following:
(a) Personal Property.
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The tangible and intangible personal property set forth on
Schedule 1.1(a) (the "Personal Property").
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(b) Leases.
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The rights of Seller under the real and personal property leases
and subleases set forth on Schedule 1.1(b).
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(c) Contracts.
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The rights and benefits of Seller under all contracts, agreements,
license agreements, vendor agreements, purchase orders, commitments, sales
orders and supply agreements set forth on Schedule 1.1(c).
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(d) Permits.
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The certificates, permits, license rights, consents, grants,
ordinances, leaseholds, and all rights to construct, maintain and operate the
Business and every right of every character whatever in connection therewith,
and the obligations thereof, and all renewals, extensions, additions or
modifications of any of the foregoing; as identified in Schedule 1.1(d), but
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only to the extent that Seller's rights to the foregoing are transferable under
applicable federal, state, local, foreign or other laws, rules, regulations,
orders, injunctions, building and other codes, ordinances, permits, licenses,
decrees of federal, state, local, foreign or other authorities (collectively,
"Laws"), (collectively, the "Permits");
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(e) Customer List.
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The customer list of the Business and all books, files, papers,
supplier lists (identified in Schedule 1.1(e) and other databases, licensee
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lists, distributor lists, bid information and customer correspondence relating
exclusively to the Business.
(f) Goodwill.
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The goodwill associated exclusively with the Business.
1.2 Excluded Assets.
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Notwithstanding Section 1.1 of this Agreement and its subparts, the
Purchased A&E shall specifically exclude the Excluded Assets (as hereinafter
defined), which Excluded Assets shall remain the sole and exclusive property of
Seller. The Excluded Assets shall include: (a) those Excluded Assets, if any,
specifically identified in Schedule 1.2.
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1.3 Method of Conveyance.
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(a) Upon delivery of the Acquisition Shares, the sale,
transfer, conveyance, assignment and delivery by Seller of the Purchased A&E to
Buyer in accordance with Section 1.1 shall be effected on the Closing Date by
Seller's execution and delivery of one or more bills of sale, assignments, and
other instruments of conveyance and transfer.
(b) At the Closing, Seller shall sell, transfer, convey, assign
and deliver to Buyer title to: (i) the Personal Property specifically set forth
on Schedule 1.1(a) hereto by a separate Xxxx of Sale and Assignment in the form
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attached hereto as Exhibit 5.5(a), free and clear of any and all liens, security
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interests and rights of Seller (collectively, "Liens"), except for Liens,
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encumbrances and other encroachments specifically identified in Schedule 1.3(b)
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(collectively, the "Permitted Liens") and Liens, if any, created by Buyer, and
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subject to the Assumed Obligations
(c) At the Closing, except as expressly set forth in Section
1.3(b) with respect to the Personal Property, Seller shall remise, release and
quitclaim to Buyer all Seller's right, title and interest in and to the
Purchased A&E, without warranties or covenants of title or otherwise, and
subject to the Assumed Obligations. The form of such quitclaim conveyance shall
be in a form reasonably acceptable to counsel for Seller and Buyer giving effect
to the terms of this Agreement.
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1.4 Assumed Obligations.
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At the Closing, Buyer shall assume and shall agree to satisfy and
discharge, as the same shall become due, (a) all of the liabilities,
obligations, contracts and commitments arising under the Purchased A&E or from
the operation of the Business, including, without limitation, those set forth on
Schedule 1.1(b) and Schedule 1.1(c); and (b) all liabilities, obligations and
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commitments set forth on Schedule 1.4(b) (collectively, the "Assumed
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Obligations").
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1.5 Excluded Obligations.
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Buyer is not assuming, and Seller shall remain fully responsible for, all
indebtedness, liabilities, obligations, contracts and commitments of Seller that
are not Assumed Obligations (the "Excluded Obligations").
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1.6 Closing Date.
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The closing of the transactions contemplated by this Agreement shall
occur on or about April 1, 2004 (the "Closing" or "Closing Date") or at such
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other date, time and place as may be agreed upon by the parties.
Section 2. Purchase Price.
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2.1 Purchase Price.
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At the Closing, Seller shall convey, transfer, assign and deliver to
Buyer the Purchased A&E in exchange for (a) Buyer's assumption of the Assumed
Obligations; and (b) issuance of the Acquisition Shares, fully paid, non
assessable and duly issued (collectively, the "Purchase Price").
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2.2 Payment Terms.
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(a) Payment.
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The Purchase Price shall be payable to Seller as follows:
(i) On the Closing Date, Buyer shall cause the delivery,
as appropriate, of the Purchase Price to Seller by hand delivery or
internationally recognized overnight delivery service, or as otherwise agreed to
by the parties.
2.3 Restrictive Legend
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Seller and Buyer agree that the Acquisition Shares have not been
registered in any jurisdiction and will bear the restrictive legend as set forth
on Schedule 2.3.
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Section 3. Representations and Warranties.
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3.1 Seller.
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Seller hereby represents and warrants to Buyer, all of which
representations and warranties are true, complete, and correct in all material
respects as of the date hereof and as of the Closing Date, as follows:
(a) Brokers.
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Seller has not dealt with any broker, salesman, finder or similar
person in connection with any part of the transactions contemplated by this
Agreement, and, to Seller's actual knowledge, without inquiry, no broker,
salesman, finder or similar person is entitled to any commission or fee with
respect to such transactions as a result of Seller's actions.
(b) Title to Purchased Assets.
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As of the Closing Date, to the extent of Seller's interest
therein, Seller shall have good and valid title to the Personal Property
specifically set forth on Schedule 1.1(a) hereto, free and clear of any Liens
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except Permitted Liens, and except for Liens, if any, created by Buyer, and
subject to the Assumed Obligations.
(c) Restrictions on Transfer.
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Seller acknowledges that the Acquisition Shares are being issued
in accordance with Regulation S and will bear a restrictive legend as required
by Law. Seller represents that it will take no action contrary to the
restrictions on transfer set forth in Regulation S and will take all reasonable
efforts to ensure compliance with same.
3.2 Buyer.
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Buyer hereby represents and warrants to Seller, all of which
representations and warranties are true, complete, and correct in all material
respects as of the date hereof and as of the Closing Date, as follows:
(a) Brokers.
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Buyer has not dealt with any broker, salesman, finder or similar
person in connection with any part of the transactions contemplated by this
Agreement, and, to Buyer's actual knowledge without inquiry, no broker,
salesman, finder or similar person is entitled to any commission or fee with
respect to such transactions as a result of Buyer's actions.
(b) Restrictions on Transfer.
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Buyer acknowledges that the Acquisition Shares are being issued in
accordance with Regulation S and will bear a restrictive legend as required by
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Law. Buyer represents that it will take no action contrary to the restrictions
on transfer set forth in Regulation S and will take all reasonable efforts to
ensure compliance with same.
Section 4. Covenants Prior to Closing.
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4.1 Seller's Covenants.
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Seller covenants that, except as otherwise consented to in writing by
Buyer, from and after the date hereof until the Closing or the earlier
termination of this Agreement, the Business will be conducted only in the
ordinary course and in substantially the same manner as heretofore conducted
except as required by this Agreement; and Seller will use reasonable efforts
consistent with past practice to preserve the organization of the Business and
continuing business relationships with suppliers, customers, clients and others
having business relations with Seller with respect to the Business.
4.2 Access.
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From and after the date hereof and until the Closing or the termination
of this Agreement, Seller shall, upon reasonable prior notice, give to Buyer and
to Buyer's counsel, accountants, consultants and other representatives and
designees, reasonable access during normal business hours as Seller may approve,
to the properties, agreements, and records with respect to the Business and will
furnish to Buyer, at Buyer's expense, copies, at a cost of no more than $0.10
per page, of all documents and all such information concerning the properties
and affairs of the Business as Buyer may reasonably request.
4.3 Cooperation.
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Buyer and Seller agree (a) to cooperate with each other in determining
whether any filings are required to be made or consents required to be obtained
in any jurisdiction in connection with the consummation of the transactions
contemplated hereby and in making or causing to be made any such filings
promptly and in seeking to obtain in a timely manner any such consents; and (b)
to use all reasonable efforts to obtain promptly the satisfaction of the
conditions to the Closing of the transactions contemplated herein. Buyer and
Seller shall furnish to each other and to each other's counsel all such
information as may be reasonably required in order to effectuate the foregoing.
Section 5. Closing.
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5.1 Conditions to Buyer's Obligations.
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The obligations of Buyer under this Agreement, including, without
limitation, the obligation to consummate and effect the purchase of the
Purchased Assets, shall be subject to satisfaction of the following conditions,
unless waived by Buyer:
(a) Buyer shall have a period of ten (10) days from the
execution of this Agreement in which to complete its due diligence including,
but not limited to, verification of income and expenses. In the event Buyer is
not completely satisfied, Buyer may terminate this Agreement.
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(b) Seller shall have performed in all material respects all
agreements, and satisfied in all material respects all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date.
(c) All representations and warranties of Seller herein shall
have been true and correct in all material respects when made, shall have
continued to have been true and correct in all material respects at all times
subsequent thereto, and shall be true and correct in all material respects on
and as of the Closing Date as though made on, as of and with reference to such
date.
(d) Seller shall have executed and delivered to Buyer all
documents contemplated by Section 5.5 of this Agreement.
(e) Prior to the Closing Date, Buyer and Seller shall have
obtained all necessary authorizations, consents, approvals and permits required
by Law for the consummation of the transactions contemplated by this Agreement
(collectively, "Regulatory Approvals").
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5.2 Conditions to Seller's Obligations.
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The obligations of Seller under this Agreement, including, without
limitation, the obligation to consummate and effect the sale of the Purchased
A&E shall be subject to satisfaction of the following conditions, unless waived
by Seller:
(a) Buyer shall have performed in all material respects all
agreements, and satisfied in all material respects all conditions on its part to
be performed or satisfied hereunder at or prior to the Closing Date.
(b) All of the representations and warranties of Buyer herein
shall have been true and correct in all material respects when made, shall have
continued to have been true and correct in all material respects at all times
subsequent thereto, and shall be true and correct in all material respects on
and as of the Closing Date as though made on, as of, and with reference to such
date.
(c) Buyer shall have executed and delivered to Seller all
documents contemplated by Section 5.4 of this Agreement.
(d) Prior to the Closing Date, Buyer and Seller shall have
obtained all necessary Regulatory Approvals.
5.3 Conditions to Seller's and Buyer's Obligations.
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The obligations of Seller and Buyer to consummate and effect the sale of
the Purchased A&E pursuant to this Agreement shall be subject to the following
additional condition, unless waived by Seller and Buyer:
(a) No injunction or temporary restraining order shall have
been granted restraining or prohibiting the consummation of the transactions
contemplated by this Agreement, and no action, suit or other proceeding
instituted by any federal, state, or local governmental authority seeking such
an injunction or order shall be pending or threatened.
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5.4 Buyer's Closing Documents.
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At the Closing, Buyer will deliver to Seller, in form and substance
consistent with this Agreement:
(a) The Purchase Price as provided in Section 2.1.
(b) An instrument of assumption assuming the Assumed
Obligations, which instrument shall have terms and conditions conforming to this
Agreement.
(c) Such other documents as Seller may reasonably request to
effectuate the transactions contemplated by this Agreement.
5.5 Seller's Closing Documents.
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At the Closing, Seller will deliver to Buyer, in form and substance
consistent with this Agreement:
(a) A Xxxx of Sale in the form attached hereto as Exhibit
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5.5(a).
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(b) Assignment of the real property lease, if any.
(c) Copies of company resolutions authorizing the execution and
delivery of, and performance of Seller's obligations under, this Agreement.
(d) A certificate of Seller, certifying and warranting that the
representations, warranties and agreements of Seller contained in this Agreement
are true and accurate in all material respects as of the Closing Date and that
Seller has satisfied and performed all of its respective obligations hereunder.
(e) Such other documents as Buyer shall reasonably request to
effectuate the transactions contemplated by this Agreement.
5.6 Closing Apportionments.
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(a) The following items shall be apportioned as of the close of
business on the day immediately prior to the Closing Date (with such meter
readings as shall be appropriate) and paid by Seller or Buyer to the other, as
the case may be, or credited against the Purchase Price, in respect of all
periods prior to the Closing Date:
NONE
5.7 Adjustments/Prorations.
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NONE
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Section 6. Additional Covenants.
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If the Closing occurs hereunder, then from and after the Closing Date,
the parties hereto shall be bound by the following covenants:
6.1 Post-Closing Access.
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Buyer shall, following the Closing, give to Seller and its respective
authorized representatives such reasonable access, at Seller's cost and expense,
during normal business hours and upon prior notice, to books and records
constituting part of the Purchased A&E (including without limitation all such
accounting books and tax records) as Seller may reasonably require in connection
with the preparation and filing of tax returns or any claim made by any party
with respect to a liability or obligation.
6.2 Nondisclosure.
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If this Agreement and the transactions provided for herein shall be
terminated or abandoned for any reason whatsoever, each party shall return to
the other parties any and all proprietary, confidential and secret information
and data furnished to such party in connection herewith and hold in confidence
its knowledge of any and all such proprietary, confidential and secret
information or data and not disclose or publish the same directly or indirectly
(a) without the prior written consent of such other party or (b) until the same
has been theretofore publicly disclosed by such other party or otherwise ceased
to be secret or confidential as evidenced by general public knowledge; provided,
however, that each party shall have the right to disclose such information,
without consent to the extent that (x) such party is required by Law to do so,
or (y) such disclosure is required in connection with litigation pertinent to
such information. For purposes of this Section 6.2, proprietary, confidential
and secret information shall include without limitation confidential and/or
proprietary information regarding the business and financial affairs of such
party.
6.3 Non-Compete.
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Unless the Seller receives the prior written consent of the Buyer, the
Seller, and any of its Members agrees that for a period of five (5) years after
the Closing (the "Restricted Period"), Seller, and any of its officers,
directors and/or key employees, will not directly or indirectly compete with the
Business of the Company within a ten (10) mile radius of the premises. In the
event of a decision of the Buyer to terminate the Business and liquidate its
assets, or the filing of a petition in bankruptcy, following such liquidation,
or the issuance of an Order of Discharge in the bankruptcy, there shall be no
Restricted Period. The term "not compete" as used herein, shall mean that the
Seller, and any of its officers, directors, key employees, shall not own,
manage, operate, consult or be employed in a business substantially similar to,
or in competition with the Business. Should the Seller breach this provision,
the Company shall be entitled to an injunction restraining the Seller, and any
of its officers, directors, key employees, from owning, managing, operating,
consulting or being employed in a business substantially similar to, or in
competition with, the Business. Additionally, the Company shall be entitled to
punitive damages for such conduct and need not prove that such damages are
recoverable by law. The right to secure an injunction, or recover punitive
damages, are not to be considered the Buyer's exclusive rights and the Buyer may
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pursue any other remedies it may have, in law or in equity, against the Seller,
or any of its officers, directors, key employees, for a breach of this
provision.
6.4 Further Assurances.
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Each of the parties hereto will cooperate with the other and execute and
deliver to the other parties hereto such other instruments and documents and
take such other actions as may be reasonably requested from time to time by any
other party hereto as necessary to carry out, evidence and confirm the intended
purposes of this Agreement. Notwithstanding the foregoing, Seller and Buyer
agree that any of the Purchased A&E not specifically set forth in Schedules
1.1(a) which may be subsequently conveyed by Seller to Buyer pursuant to this
Section 6.4, shall be conveyed to Buyer in a quitclaim form consistent with the
provisions and intent of Section 1.3(c).
Section 7. Survival of Representations and Warranties; Indemnification.
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7.1 Survival of Representations and Warranties.
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The representations and warranties of Buyer and Seller set forth in this
Agreement and in any certificate, agreement, or instrument delivered in
connection with the transactions contemplated hereby, shall survive Closing for
the following periods:
(a) With respect to the representations and warranties arising
under Section 3.1(a), Section 3.1(b) and Section acknowledges that the
Acquisition Shares are being issued in accordance with Regulation S and will
bear a restrictive legend as required by Law. Seller represents that it will
take no action contrary to the restrictions on transfer set forth in Regulation
S and will take all reasonable efforts to ensure compliance with same.
3.2(a) of this Agreement, for a period of 24 months; and
(b) With respect to the representations and warranties arising
under Section 3.2(b) and of this Agreement, for an indefinite period of time.
7.2 Indemnification by Seller.
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Seller shall, defend, indemnify, and hold harmless Buyer and officers,
directors, shareholders, agents, employees and affiliates, and their successors
and permitted assigns (individually, a "Buyer Indemnitee" and collectively the
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"Buyer Indemnitees"), from and against any and all claims, losses, deficiencies,
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liabilities, obligations, damages, penalties, punitive damages, costs, and
expenses (including, without limitation, legal, accounting and consulting fees),
resulting from third party claims (collectively, "Losses"), suffered by a Buyer
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Indemnitee, which arise out of or result from:
(a) any material inaccuracy or material misrepresentation in or
material breach of any of the covenants or agreements made by Seller in this
Agreement or in any document, certificate or affidavit delivered by Seller
pursuant to the provisions of this Agreement;
(b) any taxes arising from the operation of the Business prior
the Closing Date;
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(c) the Excluded Obligations;
(d) the Excluded Assets; and
(e) any other matter related to the conduct of the Business
prior to the Closing Date or use of the Purchased Assets prior to the Closing
Date, other than Assumed Obligations.
7.3 Indemnification by Buyer.
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Buyer shall defend, indemnify and hold harmless Seller and Seller's
officers, directors, shareholders, agents, employees and affiliates, and their
successors and permitted assigns (individually, a "Seller Indemnitee" and
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collectively the "Seller Indemnitees") from and against any and all Losses,
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suffered by a Seller Indemnitee, which arise out of or result from:
(a) any material inaccuracy or material misrepresentation in or
material breach of any of the covenants or agreements made by Buyer in this
Agreement or in any document, certificate or affidavit delivered by Buyer
pursuant to the provisions of this Agreement;
(b) any taxes arising from the operation of the Business from
and after the Closing Date;
(c) any of the Assumed Obligations; and
(d) any other matter related to the conduct of the Business
from and after the Closing Date or the use of the Purchased A&E from and after
the Closing Date.
7.4 Indemnification Payments.
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All indemnity payments, whether by Buyer or Seller, to be made under this
Agreement shall be made in immediately available funds.
7.5 Procedure for Third Party Claims.
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(a) Notice to the indemnifying party shall be given within ten
(10) days (or such later time period if the party seeking indemnification will
be materially prejudiced by such ten day notice requirement, but in such cases,
as promptly as possible) after receipt by any Seller Indemnitee or Buyer
Indemnitee of actual knowledge of the commencement of any action or the
assertion of any claim that will likely result in a claim by it for indemnity
pursuant to this Agreement. Such notice shall set forth in reasonable detail the
nature of such action or claim to the extent known, and include copies of any
written correspondence from the party asserting such claim or initiating such
action. The indemnifying party shall be entitled, at its own expense, to assume
or participate in the defense of such action or claim. In the event that the
indemnifying party assumes the defense of such action or claim, it shall be
conducted by counsel chosen by such party and approved by the party seeking
indemnification, which approval shall not be unreasonably withheld. No
settlement of a matter by the party seeking indemnification shall be binding on
the indemnifying party for purposes of establishing such party's indemnification
obligations hereunder.
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(b) With respect to actions as to which the indemnifying party
does not exercise its right to assume the defense, the party seeking
indemnification shall assume and control the defense of and contest such action
with counsel chosen by it and approved by the indemnifying party, which approval
shall not be unreasonably withheld. The indemnifying party shall be entitled to
participate in the defense of such action, the cost of such participation to be
at its own expense. The indemnifying party shall be obligated to pay the
reasonable attorneys' fees and expenses of the party seeking indemnification to
the extent that such fees and expenses relate to claims as to which
indemnification is payable under Sections 7.2 or 7.3.
(c) Both the indemnifying party and the indemnified party shall
cooperate fully with one another in connection with the defense, compromise, or
settlement of any such claim or action, including, without limitation, by making
available to the other all pertinent information and witnesses within its
control. Without limitation of the foregoing, any party granted the right to
direct the defense of a threatened or actual suit, investigation or proceeding
hereunder shall: (i) keep the other fully informed of material developments in
the action, suit, investigation or proceeding at all stages thereof; (ii)
promptly submit to the other copies of all pleadings, responsive pleadings,
motions and other similar legal documents and papers received in connection with
the action, suit, investigation or proceeding; (iii) permit the other and its
counsel, to the extent practicable, to confer on the conduct of the defense of
the action, suit, investigation or proceeding; and (iv) to the extent
practicable, permit the other and its counsel an opportunity to review all legal
papers to be submitted prior to their submission. The parties shall make
available to each other and each other's counsel and accountants all of its or
their books and records relating to the action, suit, investigation or
proceeding, and each party shall render to the other such assistance as may be
reasonably required in order to insure the proper and adequate defense of the
action, suit, investigation or proceeding. The parties shall use their
respective good faith efforts to avoid the waiver of any privilege of either
party.
(d) In the event that a party makes an indemnity claim that is
determined by a court of competent jurisdiction to be without reasonable basis
in law or fact, that party shall bear all costs and expenses (including court
costs and reasonable legal and accounting fees) incurred by the other party in
investigating and defending against such claim.
7.6 Indemnification Exclusive Remedy.
--------------------------------
This Section 7 constitutes the sole and exclusive remedy of the parties
with respect to any subject matters addressed herein, and Buyer, on the one
hand, and Seller, on the other hand, hereby waive and release the other from any
and all other claims or other causes of action, including without limitation
claims for contribution, relating to any such subject matter.
7.7 Successors.
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The merger, consolidation, liquidation, dissolution or winding up of, or
any similar transaction with respect to, the parties hereto shall not affect in
any manner the obligations of the parties pursuant to Section 7 or any other
term or provision of this Agreement, and the parties covenant and agree to make
adequate provision for their liabilities and obligations hereunder in the event
of any such transaction.
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7.8 Limits on Indemnification.
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Notwithstanding the provisions of Sections 7.2 and 7.3 and above, neither
the Buyer Indemnitees nor the Seller Indemnitees shall be entitled to receive
indemnification under this Agreement for a claim relating to a breach of a
representation or warranty contained herein.
Section 8. General Provisions.
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8.1 No Third Party Beneficiaries.
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Nothing in this Agreement is intended, nor shall it be construed, to
confer any rights or benefits upon any person, corporation, association,
partnership, limited liability company, joint venture, organization, business,
individual, government or government agency or political subdivision thereof or
any other entity (a "Person") other than the parties hereto, their successors
and assigns pursuant to Section 8.5, and solely to the extent provided in
Section 7, the other Seller Indemnitees and Buyer Indemnitees, and no other
Person shall have any rights or remedies hereunder.
8.2 Expenses of the Parties; Certain Litigation.
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All expenses involved in the preparation, authorization, and consummation
of this Agreement, incurred up to and including the Closing, including, without
limitation, all fees and expenses of agents, representatives, counsel, and
accountants in connection therewith, shall be borne solely by the party who
shall have incurred the same, and the other part[ies] shall have no liability in
respect thereof; provided, however, that nothing herein shall be construed to
release or impair any claim for damages by any party.
8.3 Amendment and Waiver.
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This Agreement may not be changed or terminated orally. No waiver of
compliance with any provision or condition hereof, and no consent provided for
herein shall be effective unless evidenced by an instrument in writing duly
executed by the party hereto sought to be charged with such waiver or consent.
8.4 Miscellaneous.
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The section headings of this Agreement are for convenience of reference
only and do not form a part hereof and do not in any way modify, interpret, or
construe the intentions of the parties. This Agreement may be executed in one or
more counterparts and all such counterparts shall constitute one and the same
instrument. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement. This Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey; without giving effect to
the conflict of laws principles thereof. Each of the parties hereto consents to
submit to the exclusive jurisdiction of the courts of the State of New Jersey
and of the United States District Court for the District of New Jersey, for any
litigation arising out of or relating to this Agreement or any certificate,
agreement or instrument delivered in connection with the transactions
contemplated hereby and thereby (and agrees not to commence any litigation
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relating hereto or thereto except in such courts). Each of the parties hereto
hereby agrees that any such litigation brought in any court of the State of New
Jersey or of the United States District Court for the District of New Jersey has
been brought in the proper venue and forum.
8.5 Binding Effect.
--------------
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective administrators, legal representatives,
successors and permitted assigns.
8.6 Publicity.
---------
No party hereto or its representatives will, without the prior written
consent of the other parties, disclose to any other Person any information that
has been made available in connection with this Agreement (other than
information which has been published or made publicly available other than by
unauthorized disclosure of a party), make any public announcement concerning the
transactions contemplated hereby or disclose any of the terms, conditions, or
other facts with respect to this Agreement, except (i) as required by Law, and
(ii) with respect to a proposed or ultimate purchaser of all or a portion of the
assets or capital stock of Seller or parent entity of Seller. If circumstances
make it impossible to give prior written notice of any such requirement of Law,
then any disclosure made shall be no more extensive than is necessary to meet
the minimum requirement imposed on the party making such disclosure
8.7 Complete Agreement.
------------------
This Agreement and the Exhibits and Schedules and other documents
referred to herein contain the entire agreement between the parties hereto with
respect to the transactions contemplated herein and supersede all previous
negotiations, commitments, and writings.
8.8 Notices.
-------
Any notice, report, demand, waiver, consent or other communication given
by a party under this Agreement (each a "Notice") shall be in writing, may be
given by a party or its legal counsel, and shall be deemed to be duly given (i)
when personally delivered, or (ii) upon delivery by United States Express Mail
or similar overnight courier service which provides evidence of delivery, or if
refused upon the first date of attempted delivery or (iii) when five (5) days
have elapsed after its transmittal by registered or certified mail, postage
prepaid, return receipt requested, addressed to the party to whom directed at
that party's address as it appears below or another address of which that party
has given notice, or (iv) when delivered by facsimile transmission if a copy
thereof is also delivered in person or by overnight courier. Notices of address
change shall be effective only upon receipt notwithstanding the provisions of
the foregoing sentence.
Notice to Buyer shall be sufficient if given to:
T&G2, Inc.
0 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
Fax: (908)
-13-
with a copy to: Xxxxxxx Law Firm
0 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
Notice to Seller shall be sufficient if given to:
Xxxxxxxxx & Team, GmbH
Xxxxxxxxxxxxxx Xxxxxxx 00,
Xxxxxxxxx xx Xxxx, Xxxxxxx 60598
Attn: Xxxxxxxxx Xxxxxxxxx
Fax:
with a copy to:
8.9 Assignment.
----------
Except as expressly provided herein, this Agreement and any rights
pursuant hereto shall not be assignable by Seller or Buyer without the prior
written consent of the other party.
8.10 Severability.
------------
If any term or provision of this Agreement shall be held to be invalid or
unenforceable for any reason, such term or provision shall be ineffective to the
extent of such invalidity or unenforceability without invalidating the remaining
terms and provisions hereof, and this Agreement shall be construed as if such
invalid or unenforceable term or provisions had not been contained herein.
8.11 Termination.
-----------
(a) This Agreement may be terminated at any time prior to the
Closing by mutual written consent of Seller and Buyer.
(b) This Agreement may be terminated by the Buyer (i) during
the Due Diligence Period, in Section 5.1(a), if Buyer is not completely
satisfied with the verification of revenue and expenses; or (ii) in the event
the required consents are not obtained to assign/assume the real property lease
and equipment/machinery note.
-14-
(c) At any time on or prior to the Closing Date, if Buyer shall
default in the observance or in the due and timely performance of any of its
material covenants herein contained, or if there shall exist any breach by Buyer
of any of its representations and warranties set forth in this Agreement, and
such default or breach is not cured within a period of ten (10) days after
written notice is given to Buyer, then Seller may (i) terminate this Agreement,
or (ii) resort to Seller's right to seek an equitable remedy of specific
performance of this Agreement against Buyer.
(d) At any time on or prior to the Closing Date, if Seller
shall default in the observance or in the due and timely performance of any of
its material covenants herein contained, or if there shall exist any breach by
Seller of any of its representations and warranties set forth in this Agreement,
and such default or breach is not cured within a period of ten (10) days after
written notice is given to Seller, then Buyer may (i) terminate this Agreement,
or (ii) resort to Buyer's right to seek an equitable remedy of specific
performance of this Agreement against Seller.
(e) If this Agreement is terminated as provided herein: (i)
each party will redeliver all documents, work papers and other material of the
other party or parties relating to the transactions contemplated hereby, whether
so obtained before or after the execution hereof, to the party furnishing the
same; and (ii) no information received by any party hereto with respect to the
business of the other party or their affiliated companies (other than
information which is a matter of public knowledge or which has heretofore been
or is hereafter published in any publication for public distribution or filed or
available as public information with any governmental authority) shall at any
time be used for the advantage of, or disclosed to third parties, by such party
for any reason whatsoever; and thereafter (iii) no party shall have any
liability or further obligation to any other party to this Agreement except as
provided by this Section 8.11, except to the extent such claim or obligation has
accrued prior to such termination of this Agreement.
8.12 Dispute Resolution.
------------------
The parties to this Agreement agree that should any dispute arise out of
any portion of this Agreement that, the parties will submit such dispute to
binding mediation before mutually agreed upon independent third party. Such
mediation shall be conducted under the Rules of the American Arbitration
Association or such other rules as the parties may mutually agree upon.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed as of the date first above written.
T&G2, INC., a Nevada Corporation
By:
-------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President & C.E.O
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XXXXXXXXX & TEAM, GMBH, a German company
By:
-------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Owner
-16-
Schedule 1.1(a)
to the
Asset Purchase Agreement
------------------------
1. Any and all equipment, machinery, furniture and fixtures located at the
Seller's offices, including, without limitation the equipment used to
operate the Business, as set forth below:
Make Model No.
---- ---------
Sun MicroSystems 420E Server
2. The Seller's Telephone Number for the Business;
3. All warranties, operating manuals, and other documents which are relevant
to the Purchased Assets;
4. Government approvals, permits and licenses, if any, necessary to own and
operate the Business;
5. Goodwill;
6. Customer Lists; and
7. Trade Name for the sole use of operating the Business.
Schedule 1.1(b)
to the
Asset Purchase Agreement
------------------------
Real Property Leases
--------------------
NONE
Equipment Leases
----------------
NONE
Schedule 1.1(c)
to the
Asset Purchase Agreement
------------------------
Contracts and Other Documents
-----------------------------
Loan Agreement with Xxxxxxx Holdings dated December 1, 2003.
Schedule 1.1(d)
to the
Asset Purchase Agreement
------------------------
List of Permits
---------------
NONE
Schedule 1.1(e)
to the
Asset Purchase Agreement
------------------------
List of Suppliers, Vendors and Customers
----------------------------------------
As supplied by Seller
Schedule 1.2
to the
Asset Purchase Agreement
------------------------
Excluded Assets
---------------
NONE
Schedule 1.3(b)
to the
Asset Purchase Agreement
------------------------
Permitted Liens
---------------
NONE
Schedule 1.4(b)
to the
Asset Purchase Agreement
------------------------
Assumed Obligations
-------------------
Loan Commitment from Xxxxxxx Holdings dated December 1, 2003
Schedule 2.3
to the
Restrictive Legend
------------------
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED UNLESS COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH ACT HAS
BEEN MADE OR UNLESS AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION
PROVISIONS HAS BEEN ESTABLISHED, OR UNLESS SOLD PURSUANT TO RULE 144 UNDER THE
SECURITIES ACT OF 1933.
Exhibit 5.5(a)
Form of Xxxx of Sale
--------------------
See attached.
