Exhibit 2.1
ASSET ACQUISITION AGREEMENT
This Agreement dated this 18th day of December 2003 between Consulting
Services, LLC, a Delaware Corporation ("SELLER") and Consumer Direct of
America, Inc., a Nevada corporation, with its principal place of business
in Las Vegas, Nevada. ("BUYER"),
WITNESS THAT,
WHEREAS SELLER owns certain assets (the "Assets") which SELLER wishes to
sell to BUYER for Assets of BUYER and which BUYER wishes to acquire from
SELLER on the terms hereinafter set forth; and
WHEREAS SELLER deems that it is in its best interest for BUYER to purchase
the Assets, and SELLER is entering into this Agreement to induce the BUYER
to enter into this tax-free exchange of Assets in accordance with this
Agreement;
NOW, THEREFORE, the parties hereby agree as follows:
1. EXCHANGE OF ASSETS:
1.1 SELLER hereby sells, assigns and delivers to BUYER certain Assets of
SELLER as more particularly described in EXHIBIT A hereto in
exchange for BUYER"S delivery to SELLER of Four Million Seven
Hundred Sixty-Four Thousand Four Hundred Twenty Seven (4,764,427)
shares of the common stock of BUYER of which Two million shares
shall be freely trading and BUYER'S assumption of the liabilities
listed in EXHIBIT B, which liabilities BUYER agrees to pay off or
resolve. BUYER shall deliver One million freely trading shares to
SELLER at closing and an additional One million freely trading
shares thirty days from closing.
2. COVENANTS OF SELLER
2.1 From the date of this Agreement until the second anniversary
thereof, SELLER will not engage directly or indirectly in developing
or operating a call center based direct solicitation mortgage
brokerage business (the "Business"), except in connection with
SELLER'S call center based direct solicitation mortgage brokerage
business, and will not invest in or provide loans or other credit
facilities to any person,
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corporation, partnership or other entity which engages directly or
indirectly in any aspect of the Business, but this covenant will not
preclude SELLER from acquiring securities which are traded publicly.
2.2 SELLER will not use or disclose any of BUYER'S trade secrets or
other proprietary or confidential information pertaining to any
aspect of the Business.
2.3 SELLER acknowledges that violation of any of the provisions of this
Section 2 may cause irreparable loss and harm to both the Company
and BUYER, which cannot be reasonably or adequately compensated by
damages in an action at law. Accordingly, in the event of a breach
or related breach by SELLER of any of the provisions of this Section
2, BUYER shall be entitled to seek injunctive and other equitable
relief to prevent or cure any breach or threatened breach thereof.
2.4 Notwithstanding the foregoing, SELLER and BUYER may have other legal
remedies as may be appropriate under the circumstances including,
inter alia, recovery of damages occasioned by such breach.
2.5 If it is determined that any of the provisions of this Section 2 are
unreasonable in scope, time or geography, SELLER is able to enforce
the same in such narrower scope, shorter time or lesser geography as
a court determines to be reasonable under all the circumstances.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 SELLER represents and warrants to the BUYER as follows:
(a) SELLER is duly incorporated and validly existing under the
laws of Delaware. SELLER is duly qualified to conduct business
in all jurisdictions where it is required to qualify. SELLER
has the corporate power and authority to execute, deliver and
perform this Agreement and any other agreement or document
executed by either of them under or in connection with this
Agreement. SELLER has taken all necessary corporate action to
authorize the execution, delivery and performance of this
Agreement and any such other agreement or document. This
Agreement constitutes, and any such other agreement or
document when executed will constitute, the legal, valid and
binding obligations of
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SELLER enforceable against SELLER in accordance with their
respective terms.
(b) Neither the execution nor delivery of this Agreement nor the
transactions contemplated herein, nor compliance with the
terms and conditions of this Agreement will:
(i) contravene any provision of law or any statute, decree,
rule or regulation binding upon SELLER or contravene any
judgment, decree, franchise, order or permit applicable
to SELLER; or
(ii) conflict with or result in any breach of any terms,
covenants, conditions or provisions of, or Constitute a
default (with or without the giving of notice or passage
of time or both) under the Articles of Incorporation or
By-Laws of SELLER or any agreement or other instrument
to which SELLER is a party or by which SELLER is bound,
or result in the creation or imposition of any lien,
security interest, charge or encumbrance upon any of the
assets, rights, contracts or other property of SELLER.
(c) All authorizations, consents, approvals of, or exemptions by,
any governmental, judicial or public body or authority
required in connection with (i) the execution, delivery and
performance of this Agreement by SELLER, or (ii) any of the
transactions contemplated by this Agreement, or (iii) any of
the certificates instruments or agreements executed by SELLER
in connection with Agreement or (iv) the taking of any action
required of SELLER , have been or at the Closing will have
been obtained and at the Closing will be in full force and
effect.
(d) EXHIBIT A herein contains true and complete copies of the
Articles of Incorporation and By-Laws of the Company, and the
same have not been amended and are in full force and effect.
(f) EXHIBIT B sets forth all of the assets , tangibles and
intangibles of the Company, including third party contracts
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which are to be sold to BUYER and all the liabilities BUYER is
to assume. All of the information concerning the Company's
Assets and liabilities contained in said EXHIBIT B is true and
correct.
(g) There is no material litigation or arbitration or
administrative proceeding or claim asserted pending or
threatened respecting or involving the business or SELLER or
any of SELLER'S Assets or other assets of SELLER other than as
set forth in Exhibit B.
(h) EXHIBIT C contains a full list of all the officers, directors,
employees and agents of SELLER.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 BUYER represents and warrants to SELLER and the Company as follows:
(a) BUYER is duly incorporated and validly existing under the laws
of Nevada. BUYER is duly qualified to conduct business in all
jurisdictions where it is required to qualify. BUYER has the
corporate power and authority to execute, deliver and perform
this Agreement and any other agreement or document executed by
either of them under or in connection with this Agreement.
BUYER has taken all necessary corporate action to authorize
the execution, delivery and performance of this Agreement and
any such other agreement or document. This Agreement
constitutes, and any such other agreement or document when
executed will constitute, the legal, valid and binding
obligations of BUYER enforceable against BUYER in accordance
with their respective terms.
(b) Neither the execution nor delivery of this Agreement, nor the
transactions contemplated herein, nor compliance with the
terms and conditions of this Agreement will:
(i) contravene any provision of law or any statute, decree,
or regulation binding upon BUYER or containing any
judgment, decree, franchise, order or permit applicable
to BUYER.
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(ii) conflict with or result in any breach of any terms,
covenants, conditions or provisions of, or Constitute a
default (with or without the giving of notice or passage
of time or both) under the Articles of Incorporation or
By-Laws of BUYER or any agreement or other instrument to
which BUYER is a party or by which BUYER is bound, or
result in the creation or imposition of any lien,
security interest, charge or encumbrance upon any of the
assets, rights, contracts or other property of BUYER.
(c) All authorizations, consents, approvals of, or exemptions by,
any governmental, judicial or public body or authority
required in connection with (i) the execution, delivery and
performance of this Agreement by BUYER, or (ii) any of the
transactions contemplated by this Agreement, or (iii) any of
the certificates instruments or agreements executed by BUYER
in connection with Agreement or (iv) the taking of any action
required of BUYER, have been or at the Closing will have been
obtained and at the Closing will be in full force and effect.
(d) EXHIBIT A herein contains true and complete copies of the
Articles of Incorporation and By-Laws of BUYER, and the same
have not been amended and are in full force and effect.
5. INDEMNITIES
5.1 The representations and warranties of SELLER and BUYER will be
deemed made on execution of this Agreement and all of those
representations and warranties and all of the covenants and
obligations of the parties under this Agreement will survive the
Closing.
5.2 BUYER will hold SELLER harmless from and pay any loss, damage, cost
or expense (including, without limitation, legal fees and court
costs) which SELLER incurs by reason of any representation or
warranty of BUYER being incorrect or by reason of any breach by
BUYER of any of its covenants or obligations under this Agreement,
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or by reason of any liability arising out of conduct by or actions
of BUYER prior to the date of this Agreement.
5.3 SELLER will hold BUYER harmless from and pay any loss, damage, cost
or expense (including, without limitation, legal fees and court
costs) which BUYER incurs by reason of any representation or
warranty of SELLER being incorrect or by reason of any breach by
SELLER of any of its covenants or obligations under this Agreement,
or by reason of any liability arising out of conduct by or actions
of SELLER prior to the date of this Agreement.
6. EMPLOYMENT OF XXXXX XXXXXXX AND XXXXX XXXXX
6.1 SELLER'S Managers, Xxxxx Xxxxxxx and Xxxxx Xxxxx shall be employed
by BUYER or one of BUYER'S subsidiaries, subject to the terms and
conditions of two Employment Agreements to be negotiated in good
faith and executed as soon as practicable after execution of this
Agreement, but in no event later than May 31, 2004. The employment
agreements will presume full time employment of Xxxxxx X. Xxxxxxx
and Xxxxx Xxxxx by said entity.
7. GOVERNING LAW
This Agreement will be governed by and construed in accordance with
the laws of the State of Georgia.
8. AMENDMENT AND WAIVER
8.1 This Agreement may not be amended or terminated except by an
instrument in writing signed by both parties hereto.
8.2 No provision of this Agreement and no right or obligation under this
Agreement may be waived except by an instrument in writing signed by
the party waiving the provision, right or obligation in question.
9. ASSIGNMENT
No party may transfer or assign any of its rights or obligations
under this Agreement and any attempt thereat shall be null and void.
10. NOTICES
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10.1 Any notice, request, demand, waiver, consent, approval, or other
communication which is required or permitted to be given to any
party under this Agreement shall be in writing and shall be sent to
that party at the addresses or fax numbers set forth below or in the
event of a change in any address or number, then to such other
address or fax number as to which written notice of the change has
been given.
(a) If to SELLER;
CONSULTING SERVICES, LLC
0000 XXXXXXX XXXXX XXXX, XXXXX 000
XXXXXXXX, XX 00000
ATTN: XXXXX XXXXXXX / XXXXX XXXXX
FAX: (000) 000-0000
(b) If to the BUYER;
CONSUMER DIRECT OF AMERICA INC.
0000 X. XXXXXXXX XX. XXXXX 0
XXX XXXXX, XXXXXX, 00000
ATTN: XXXXXXX X. XXXXXX
FAX: ___________________
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement among the parties
with respect to the matters described herein and no party has relied
upon any representation except those specifically set forth herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
SELLER
-----------------------------------------
CONSULTING SERVICES, LLC
BY: XXXXXX X. XXXXXXX
MANAGER
BUYER
-----------------------------------------
CONSUMER DIRECT OF AMERICA, INC.
BY: XXXXXXX X. XXXXXX
CHIEF EXECUTIVE OFFICER
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EXHIBIT A
ARTICLES OF INCORPORATION AND BY-LAWS OF BUYER AND SELLER
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EXHIBIT B
ASSETS, LIABILITIES, TANGIBLES AND INTANGIBLES OF SELLER TO BE ACQUIRED BY BUYER
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