EXHIBIT 10.1
AGREEMENT IN PRINCIPLE
This Agreement In Principle ("AIP" or "Agreement") is agreed to and made
retroactive to June 27, 2002 in order to preserve the respective rights of the
parties as set out below, and is executed this 24th day of July, 2002, by and
between 37Point9 ("37.9" or "Company"), a Nevada corporation, with its principle
place of business at San Diego, California, and Global Glass Source, Ltd.
("G.G.S." or "G.G.S. Ltd."), a Hong Kong corporation, with its principal place
of business in Hong Kong.
It is understood by the parties that this Agreement In Principle is intended,
unless specifically limited to the contrary in a particular provision, to be a
binding agreement enforceable by a court of competent jurisdiction, obligating
and binding the parties.
BACKGROUND
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WHEREAS, 37.9 is a Nevada holding corporation, which is publicly traded on the
OTC/BB stock exchange under the trading symbol "TSPN," and which is ready,
willing, and able to enter into agreements of all kinds with third parties for
any lawful purpose consistent with its corporate charter, and
WHEREAS, Global Glass Source, Ltd., which is a client of the Lin Client Group,
is a Hong Kong incorporated business with annual revenues in excess of five
million dollars (U.S. $5,000,000), and is profitable.
WHEREAS, the Lin Client Group, which, while not a party to this Agreement In
Principle, privately owns, holds or controls 100 percent (100%) of the stock of
G.G.S., Ltd., a Hong Kong corporation, and which desires to be acquired, through
the sale of its common stock, by a publicly traded corporation whose business
plan is compatible with its own business plans, and
WHEREAS, the parties, after considerable analysis, discussion, and negotiation
recognize that they share mutual ideas for future business development in the
medical field, especially with respect to marketing in those geographical areas
known commonly as "Pacific Rim" and "North America," and involves the unique
capabilities and business objectives of the respective parties, and
WHEREAS, the principals of the parties believe that a profitable liaison can be
achieved through a full Stock Purchase Agreement, whereby Company acquires all
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the stock of G.G.S., Ltd., which will enable them to proceed with the timely
development of a business plan involving the essential elements described below,
and
WHEREAS, the parties have come to an Agreement In Principle in order that their
mutual business plans and objectives may move forward toward accomplishment, and
that this Agreement In Principle, as to the provisions so stated, shall be fully
binding when executed by all parties; and
NOW THEREFORE it is the understanding of the parties, and the intent of the
parties, based on the mutual covenants and promises made herein, and other
valuable consideration, receipt of which is hereby acknowledged, to enter into
this binding Agreement In Principle, expressing their agreement as follows:
1. BACKGROUND RECITALS INCORPORATED. The foregoing background recitals are
incorporated into the body of this agreement by this reference.
2. THIS AGREEMENT IN PRINCIPLE TO LEAD TO FULL STOCK PURCHASE AGREEMENT. The
parties acknowledge that this Agreement In Principle is expected to lead
directly to a full Stock Purchase Agreement to close not later than October 30,
2002. The parties may agree to limited extensions, for consideration, if the
Stock Purchase Agreement does not close on or before October 30, 2002. Each
party shall be responsible for its due diligence.
3. NO NEGOTIATIONS WITH OTHER PARTIES. Each party represents, affirms,
acknowledges, and agrees that, owing to the substantial commitments, resources
and expenses required of each party during the term of this Agreement In
Principle, it will not engage in talks, discussions or negotiations with any
other party or parties relative to an agreement containing the essential terms,
conditions, ideas and concepts being negotiated by the parties. This provision
shall be effective immediately upon signing hereof and remain in force through
October 30, 2002 unless terminated earlier by written mutual agreement.
4. REPRESENTATIONS AND OBLIGATIONS OF 37.9.
A. AUTHORIZED AND OUTSTANDING. Company, upon entry into this AIP, has
400,000,000 common shares authorized, and 50,000,000 preferred shares
authorized.
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B. INVESTED CAPITAL. The basis of invested capital by several
shareholders to date amounts to $315,000 ("majority shareholders"), pursuant to
agreements for non-dilutive investment, actually delivered to the Company,
entitling majority shareholders to a voting and equity interest of 52.5%. There
is also outstanding approximately $25,000 in convertible notes at a rate of
$0.005 per share.
C. REVERSE STOCK SPLIT. Company shall exercise a reverse split of its
common shares, at a suggested ratio of 1:10 (that is, one re-issued share for
each ten of the issued and outstanding shares owned by any stockholder) of its
up to 400 million issued and outstanding stock, common shares only, resulting in
common shares issued and outstanding at the time the Full Stock Purchase
Agreement is consummated of an up to reverse split of 40 million common shares.
D. TOTAL SHARES AFTER CONSUMMATION. The approximate number of shares
anticipated to be outstanding at the time of consummating the Stock Purchase
Agreement is approximately 87.7 million shares, as follows: public shareholders:
approximately 40.0 million shares plus Lin Client Group (including Finders):
approximately 47.7 million shares. Total: approximately 87.7 million shares,
excluding the convertible notes referred to in B, above.
E. FINDER'S FEE. Company shall authorize a finder's fee amounting to
four percent (4%) of the transaction amount of approximately 87.7 million shares
the total shares outstanding at the conclusion of the transaction, namely, or
approximately 3.5 million shares, to be paid to the designee(s) of G.G.S. for
finder's fee.
F. LITIGATION DISCLOSED. Company makes full disclosure that it is
presently in litigation, as plaintiff, with its former President, Chairman, and
CEO, Xxxxxxx Xxxxxxxx, over issues relating to the ownership of certain patents
and products, and that such litigation is not material to the intended business
plans of the parties of this agreement.
G. G.G.S. TO BE WHOLLY OWNED. It is contemplated that, upon
consummation of the Stock Purchase Agreement, G.G.S. shall become a wholly-owned
(100%) subsidiary of Company.
H. CURRENT PRESIDENT MANAGEMENT CONTRACT. Company shall approve a
management contract wherein the current President of G.G.S. [also referred to
herein as "Managing Director--G.G.S."] shall remain as President, CEO and COO of
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G.G.S., and shall reimburse him for all legitimate expenses incurred in
furtherance of this AIP and the Stock Purchase Agreement it is contemplated that
it will lead to (see Para 5.C, below).
I. SEAT ON BOARD OF DIRECTORS. Company has resolved, and represents
that, immediately upon consummation of the Stock Purchase Agreement, Company
Director J. Xxxxx Xxxxxxx MD DDS will resign his seat on the Board of Directors
of Company, but will continue as an advisor to the company. The current
President of G.G.S., or a designee thereof, if appropriate, shall be nominated,
elected, and/or appointed to fill the seat vacated by Xx. Xxxxxxx. The new Board
of Directors shall adopt a resolution to increase the number of seats on the
Board of Directors to seven, and the first of such new expanded Board seats
shall be filled by Xx. Xxxxxxx, who will be nominated, elected and/or appointed
to the expanded Board of Directors.
J. DESIGNATED AUDITOR. The auditor shall be Xxxxxxxx & Company or a
mutually acceptable, SEC qualified CPA firm.
K. H & H GLASS, INC. This entity shall continue to be G.G.S.'s sole
distributor in the North America, with Xx. Xxx continuing as an officer thereof.
5. REPRESENTATIONS AND OBLIGATIONS OF G.G.S., LTD.
A. CONTROL OF G.G.S. Lin Client Group owns or controls all the stock
(100%) of G.G.S., and represents that it can deliver all the necessary
covenants, commitments, agreements and signatures to carry out its duties and
obligations under the terms of this Agreement In Principle.
B. G.G.S. INCOME PERFORMANCE/PROFITIBILITY. G.G.S., Ltd. represents and
covenants that the before-tax income of G.G.S., Ltd., at the time of the
consummation of the Stock Purchase Agreement contemplated by this Agreement in
Principle, shall be profitable.
C. SUBSEQUENT G.G.S. INCOME PERFORMANCE. In the event that, at the time
of entering into the Stock Purchase Agreement, there is any diminution in the
annual revenues referred to in 5.B, above, it shall be charged against the
residual common shares owned by the Lin Client Group and not against their
preferred shares in the Company.
D. FINDER'S FEE. G.G.S. shall authorize a finder's fee, to be paid in
free-trading stock of Company at the consummation of the Stock Purchase
Agreement or shortly thereafter, amounting to four percent (4%) of the
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transaction amount or 3.5 million shares, with 87.7 million shares to be
outstanding at the conclusion of the transaction, and shall, in a separate
instrument previously agreed by the parties, designate and approve the Finders
to receive the finder's fee.
6. JOINT OBLIGATIONS OF THE PARTIES.
A. JOINT AUTHORIZATION OF FINDER'S FEE. The parties shall jointly
authorize a finder's fee amounting to four percent (4%) of the transaction
amount of 87.7 million shares, namely the total shares outstanding at the
conclusion of the transaction, or 3.5 million shares, to be paid to the finder
designee of Lin Client Group.
B. MANAGEMENT CONTRACT FOR G.G.S. MANAGING DIRECTOR. The parties shall
approve a management contract wherein the Managing Director of G.G.S. shall
remain as President, CEO and COO of G.G.S., Ltd., which shall become a wholly
owned subsidiary of Company, and that person shall be appointed to the Board of
Directors of the Company upon consummation of the Stock Purchase Agreement.
C. FULL STOCK PURCHASE AGREEMENT. Each party represents, affirms,
acknowledges, and agrees that this Agreement In Principle is intended to lead
expeditiously, specifically not later than October 30, 2002 to a full, exclusive
Stock Purchase Agreement expressing all of the essential agreements, terms, and
conditions of the parties and lead to the performance of other acts, agreements,
duties, obligations and conditions designed to carry out and fully implement the
intent of the parties.
D. DUE DILIGENCE. The parties acknowledge and agree that this Agreement
will bind the parties throughout negotiations, but that each party shall have a
reasonable time to conduct its own due diligence, at its own expense.
E. INSURANCE. The parties shall authorize, through the Board of
Directors, the obtaining by Company of full Directors and Officers liability
insurance coverage and Errors and Omissions insurance coverage for all
management personnel, the costs of which are to be borne by Company.
F. STOCK TO BE ISSUED. After the Stock Purchase Agreement has been
entered into, the Lin Client Group, including finders, shall be issued the
common stock of Company amounting to approximately 47.7 million shares. Four
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percent of said issue shall be for the compensation of the Finders, who have
been designated and will be identified pursuant to a separate "Letter of
Understanding--Finders."
H. AGENCY AND GOOD FAITH. Each party represents, affirms, acknowledges
and warrants that the agent for each entity signing this Agreement In Principle
has the full and complete authority to bind the principal owner(s), partners,
and/or shareholder(s) of that signing entity, and is executing said agreement
and all its terms and conditions in good faith. Each party further represents,
warrants, acknowledges and affirms that all necessary corporate actions and
resolutions have been duly taken to approve and enter into this Agreement In
Principle.
I. FINANCIAL INFORMATION. Each party represents, affirms, acknowledges,
and agrees that any financial and other information provided, or to be provided,
to any party hereto is complete, accurate, and reliable for all purposes in
connection with this Agreement In Principle and any subsequent formal agreement
it contemplates.
J. TAX AND LEGAL IMPLICATIONS. Each party represents, affirms,
acknowledges, and agrees that it is independently responsible for its own full
knowledge and professional advice relative to the tax and legal implications of
the principal terms of the proposed transaction.
K. TIME OF THE ESSENCE/PENALTY. The parties recognize and agree that,
given the considerable investment required in time, money and effort to comply
with the terms of this AIP, time shall be of the essence of this Agreement.
L. CONFIDENTIALITY. Each party represents, affirms, acknowledges, and
agrees that it will keep in strict confidence, presently and in the future, any
and all confidential and/or proprietary information (except such as is publicly
available or freely useable material as otherwise obtained from another
legitimate source) with respect to any party hereto and with respect to any of
the provisions of this AIP or provisions of the contemplated full agreement.
1. The parties agree that the provisions protecting the
other's sources and prohibiting contacts with such sources apply to all
employees, professional consultants, contractors, and agents whose
responsibilities require knowledge of such information.
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2. Regardless of the consummation of any transaction between
the parties relative to this Agreement, all of the non-disclosure and
non-circumvention provisions expressed herein shall continue to apply
indefinitely.
M. NON-CIRCUMVENTION. The parties agree that during the term of this
Agreement, no party shall enter into discussions with, negotiate with, or
disclose, directly or indirectly, any of its proprietary information relative to
the subject matter of this Agreement to any third parties, with the exception of
a Business Wire press release, or other prospective participant(s) in a business
relationship whatsoever, and that to make such disclosures, discussions or
negotiations shall constitute a circumvention of this Agreement and shall
subject such offending party to all legal remedies available against it and in
favor of the other parties.
1. This Agreement applies to any transactions involving
successors, assigns affiliates or subsidiary companies, entities, or persons.
2. The parties agree that no effort shall be made to
circumvent the terms and conditions of this Agreement to gain remuneration in
any form including, but not limited to, a fee, a finder's fee, a commission, a
payment, or a strategic benefit or a strategic relationship of any form.
3. With respect to any attempt at circumvention of this
Agreement, any injured party is entitled to seek any and all fees or
compensation equal to those received or committed or agreed to be paid in the
agreement governing the transaction between the parties and the same are due and
payable to the circumvented party under the terms of this agreement.
N. PUBLICITY. No party will or may issue any public announcement
without the prior approval of the other parties, except as required by law.
O. FEES AND EXPENSES. Each party will bear and pay all legal and all
other fees incurred by it with respect to this Agreement In Principle, whether
or not a full and final agreement is eventually achieved. This agreement
contemplates a finder's fee amounting to four percent (4.0%) of the total
transaction, payable in free-trading stock at closing to the designee of Xxxxx
Xxx, as disclosed in a separate instrument.
P. SEVERABILITY/GOVERNING LAW. If one or more of the provisions of this
Agreement In Principle, or the Full Agreement hereby contemplated, are deemed
void by law, then the remaining provisions will continue in full force and
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effect. The laws of the State of California shall govern the validity,
interpretation, effect, and enforcement of this Agreement.
Q. CONSIDERATION. The mutual promises, covenants, interests, and
advantages described in this Agreement In Principle, constitute mutual
consideration, receipt of which is hereby acknowledged, by the parties.
R. PARTNERSHIP NOT CREATED. The parties agree that, in no way shall
this Agreement be construed as creating a partnership or being an act of
partnership between the parties and that neither shall have, as a result of the
execution of this agreement, any liability for the commitment, obligations,
debts, or claims of any other party.
S. RESOLUTION OF CONTROVERSY. The parties agree that any unresolvable
controversy, claim or dispute arising from this Agreement or from any
transaction covered hereby, or any alleged breach hereof, will be decided by
arbitration before a panel of three which arbitration is to take place in
accordance with the rules of commercial arbitration of the American Arbitration
Association.
1. Proceedings in arbitration shall be based on California law
and are to take place in Orange County or Los Angeles County, California, unless
the parties mutually agree upon another location.
2. The parties acknowledge and agree that the prevailing party
shall be entitled to reimbursement of all arbitration costs, reasonable attorney
fees and any other costs or charges reasonably necessary to the adjudication of
the controversy.
3. Any judgment or award rendered by arbitration may be
entered in any court having jurisdiction. Nothing contained herein shall deprive
any party of the right to obtain injunctive or other equitable relief.
T. ABILITY TO AMEND. Both parties agree that amendments can be made to
this Agreement, but will not change materially the basic Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
parties, agents or officers on this 24th day of July, 2002.
37 POINT 9:
By: /s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX, PRESIDENT
GLOBAL GLASS SOURCE, LTD.:
By: /s/ Xxxxxx Xxx
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(MANAGING DIRECTOR)
Xxx Xxxx Sum Xxxxxx
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(Please print name)
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