MEMORANDUM OF UNDERSTANDING
FOR ASSET SALE
This Memorandum of Understanding is hereby made and entered into as of
28th day of May 2003 between Springfield Investment Company, a Nevada
Corporation, (known hereafter as ("Seller") 0000 Xxxxx Xxxxx Xxxxxx, Xxxx Xxxx
Xxxx, Xxxx 00000-0000 and Tango Incorporated, ("Buyer") a Florida Corporation,
000-0000 00xx Xxx XX, Xxxxxxx Xxxxxxx X0X 0X0 and the management of Pacific
Print Work LLC., is Xxxx Xxxxxx ("Management") and Pacific Print Works LLC., an
Oregon Limited Liability Corporation ("Corporation") 0000 Xxxxxxxxx 000xx
Xxxxxx, Xxxxxxxx Xxxxxx.
Whereas the Seller owns 100% interest in of Corporation and desires to
sell to the Buyer 100% interest in Corporation to the Buyer; and
Whereas the Buyer desires to acquire 100% interest in Corporation; and
Whereas all parties benefit from the proposed transaction
NOW, THEREFORE, and in consideration of the mutual representations,
warranties, covenants and undertakings herein contained, and on the terms and
subject to the conditions set forth herein, the parties hereto agree as follows:
DEFINTION
1.1 In this Agreement, the following terms shall have the following meanings:
(a) "Agreement" means this Memorandum of Understanding;
(b) "Business" means the business of screen printing;
(c) "Cause" means the termination of the Agreement by the Buyer for any reason
which would entitle the Buyer to terminate the Agreement without notice or
payment in lieu of notice at common law, or under the provisions of any
other applicable law or regulation and includes, without limiting the
generality of the foregoing:
(d) Fraud, misappropriation of property or funds, embezzlement, malfeasance,
misfeasance or nonfeasance in which is willfully or grossly negligent on the
part of the any party;
(e) "Change of Control" means:
For the purposes of this Agreement, a Change of Control shall be deemed to have
occurred at such time as:
(i) the sale, lease or transfer by the Corporation of all or
substantially all of the assets of the Corporation to any Person
other than the Seller;
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(ii) approval by the shareholders of the Corporation of the
liquidation, dissolution or winding-up of the corporation; and
(iii) transfer of ownership of more than 51% of the total capitalization
in the Corporation.
(f) "Company Property" includes any materials, tools, equipment, devices,
records, files, data, tapes, computer programs, computer disks, software,
communications, letters, proposals, memoranda, lists, drawings, blueprints,
correspondence, specifications or any other documents or property belonging
to the Corporation or any Related Corporation;
(g) "Confidential Information" means any information of a confidential nature
which relates to the Business of the Corporation or any Related Corporation,
including, without limiting the generality of the foregoing, trade secrets,
technical information, marketing strategies, sales and pricing policies,
financial information, business, marketing or technical plans, programs,
methods, techniques, concepts, formulas, documentation, intellectual
property, software, industrial designs, products, strategic studies, client
and supplier lists, shareholder data and personnel information of the
Corporation and any Related Corporation. Notwithstanding the foregoing,
Confidential Information shall not include any information which:
(i) was in the possession of or known to the public, without any
obligation to keep it confidential, before it was disclosed
by the Corporation; or
(ii) is or becomes public knowledge through no fault of the
Corporation or Buyer; or
(iii) is independently developed by the any person or entity outside
the scope of this agreement; or
(iv) is disclosed by the Corporation to another Person without any
restriction on its use or disclosure; or
(h) "Closing" is the date in which the first transfer of cash or equity from
either party transfers to another party pursuant to this agreement.
Therefore upon the first transfer of any payment, transfer of equity of this
agreement shall be deemed binding on all parties.
(h) "Effective Date" means May 28, 2003 or such other date as the parties may
mutually agree to;
(i) "Entity" means a Person other than a natural person;
(j) "Person" means a natural person, firm, corporation, company, body corporate,
trust, partnership, joint venture, association, unincorporated organization,
government or any agency thereof;
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(k) "Related Corporation" means any subsidiary, parent company, division,
Affiliate, predecessor or successor of the Corporation;
(l) "TNGO" - the Stock ticker symbol for Tango Incorporated which is currently
quoted on the OTC BB.
(m) "Client" - means those persons, firms or corporations which have requested,
or to whom the Corporation has made a proposal to provide goods, services,
information or technical expertise whether for remuneration or not; and
specifically includes the identity or name of such client;
(n) "Financing" - means any different types of financial instruction necessary
to fund additional business transaction. Equity Investment, Debt financing
PO financing and credit lines shall be considered the acceptable financial
instruction for this transactions.
(o) "Functional specifications" - means the functional specifications prepared
by or provided to the Corporation for use in the design of Programs written
or to be written for a client and includes menu and screen designs, hardware
system analysis, flowcharts, algorithms, database design, specifications,
manuals, printouts, notes, annotations, lay-outs, cards, card decks, charts
and other like material and documentations, together with all included
information, and know-how (technical or otherwise);
(p) "Implementations plans" - means the time schedules for the completion of
proposals, projects or the preparation and delivery of programs or services
by the Corporation;
(q) "Information" - means programs, functional specifications, implementation
plans, operating manuals, trade secrets, employees contracts, employment
issues, proprietary and confidential information of the Corporation (which
specifically includes clients) together with any and all other information
disclosed to the Consultant by the corporation which relates to the past,
present and future research, development and business activities of the
Corporation or its clients;
(r) "Operating manuals" - means the operational and technical manuals prepared
by the Corporation which describe overviews of the operation of the
Functional specifications and Programs and includes instruction to users
and/or technicians;
(r) "PPW Shares" - means membership interest of Pacific Print Works LLC
(s) "Programs" - means any application or operating system software, firmware,
programs or portions thereof, user interfaces, programmers libraries of
routines and subroutines, etc. written, enhanced or assembled by the
Corporation;
(t) "Services" - means any activities carried on by the Corporation in the
performance of its business obligations, whether or not such services are
provided by the Corporation to any client; "Source Code" - means the source
codes of the Programs in either eye-readable form in the language or
languages used for the programs or in machine readable form (whether
complied or not);
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(u) "Trade Secrets" - means that information used by the Corporation which may
be available, or disclosed by the Corporation or obtained through
observation or examination of the Corporation's customers or suppliers, but
which information is not disclosed to clients or third parties.
ARTICLE I
CHANGE OF CONTROL
1.01 Change of Control. (A) Subject to and upon the terms and
conditions contained herein, the Seller shall sell, assign, transfer, convey and
deliver to the Buyer, free and clear of any liens, claims, encumbrances and
charges whatsoever, and Buyer shall purchase, accept and acquire from the Seller
the number of PPW Shares in the aggregate constitute 100% of the issue and
outstanding shares of PPW Shares and owned by the Seller. This transaction shall
be deemed Change of Control in which the Buyer shall then own all of the Company
Property.
(B) In consideration of the PPW Shares to be purchased from the
Seller, Buyer at the Closing shall deliver to the Seller, certificates
representing the number of Exchange Shares set forth opposite or under each
Seller' name on an aggregate of 3,000,000 TNGO common shares free and clear of
any liens, claims, encumbrances or charges whatsoever, except as otherwise
provided in this Agreement; and
1.02 Instruments of Transfer; Further Assurances. In order to
consummate the transaction hereby, the following documents and instruments shall
be delivered:
(a) Documents from Seller. Seller shall deliver (i) to Buyer at the
Closing an assignment of its membership interest representing the PPW
Shares plus (a) a duly executed instrument of transfer for each such
assignment with appropriate signature guarantees in proper form to
transfer to Buyer good and marketable title to the PPW Shares;
(b) Documents From Buyer. Buyer shall deliver to Seller, at the Closing
stock certificates representing 3,000,000 TNGO common shares in good
and marketable title in the Seller's name.
(c) Further Documents. At the Closing, and at all times thereafter as may
be necessary (i) Seller shall execute and deliver to Buyer such other
instruments of transfer as shall be reasonably necessary or appropriate
to vest in Buyer good and indefeasible title to the PPW Shares and to
comply with the purposes and intent of this Agreement, and (ii) Buyer
shall execute and deliver to Seller such other instruments,
certificates and documents as shall be reasonably necessary or
appropriate to convey to Seller respectively 3,000,000 TNGO shares to
comply with the purposes and intent of this Agreement.
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(d) Documents from the Management to the Buyer. (i) At Closing, the
Management shall execute employment contracts with the Buyer, (ii) and
a consent to the Change of Control (iii) execute a declaration that
they will transfer to the Buyer the trade secrets, services, programs,
operating manuals, information, implementation plans, functional
specification and clients.
ARTICLE II
CAPITAL PLAN FOR THE MERGERED COMPANY
2.01 SHARES TO SPRINGFIELD INVESMTENTS. Pursuant to Article I of
this agreement the Buyer will issue Three million (3,000,000) shares of it
common stock to the Seller of 100% of the shares in the Corporation. It is the
intent of the respective parties that this Agreement be treated as a tax free
exchange under the Section 368 of the Internal Revenue Code.
The Seller acknowledges the following risk factors associated in regards to the
TNGO shares:
a. Investment Intent. The Seller is acquiring the Shares for its
own account and for its nominees and investment purposes only and not with the
view to the resale or distribution of such shares within the period prescribed
by Rules 144 and 145 of the Securities and Exchange Commission. Except for the
transfer to its nominee, the Seller has no present intention, agreement or
arrangement for the distribution, transfer, assignment, resale or subdivision
thereof. The Seller, except for the transfer to its nominee, does not intend to
divide its participation with others or to resell or otherwise dispose of all or
any part of the Shares. The Seller understands that, due to the lack of any
market existing or likely to exist for the Shares, its investment in the Shares
will be highly illiquid and, most likely, will have to be held indefinitely. The
Seller is able to bear the economic risk of its acquisition of the Shares and,
in making this statement, consideration has been given to whether it can afford
to hold the Shares for an indefinite period of time and whether it can afford a
complete loss of its investment. The Seller has adequate means of providing for
its current needs and possible contingencies and has no need for liquidity in
the Shares.
b. Access to Information. The Seller has had access to all of
the Company's public filings via XXXXX. The Company has provided access to all
information which the Seller has requested to verify or investigate the matters
referred to in the public filings and all other matters related to the Buyer,
its business or the Shares. The Seller has had the opportunity to communicate
with such officers, employees, accountants or other representatives of as he has
deemed necessary or prudent to fully inform himself concerning the Buyer, its
business, the Shares and the risks associated therewith.
c. No Representations or Warranties. No representations or
warranties by or anyone acting on its behalf have been made to the Seller in
connection with the Shares.
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d. Unregistered Shares. The Seller fully understands that the
Shares have not been registered under the Securities Act of 1933 as amended (the
"Act") or under any state securities law as may be applicable and are being
delivered to him pursuant to an exemption from registration under the Act. The
Seller understands that because they are unregistered, the Shares will be
subject to a prohibition imposed by law and regulation on transfer, pledge or
hypothecation during a restriction period, which will prevent liquidation of the
investment during such period, and in this regard, there will be affixed to the
certificates representing the Shares a legend in customary form advising of the
unregistered, restricted nature of the Shares. The Seller further understands
and agrees that the Shares may not be re-offered, sold, transferred, pledged or
hypothecated to any person or entity in the absence of registration under the
Act or evidence (which may be required to include an opinion of counsel)
satisfactory to the Buyer that such registration is not required.
e. Start-Up Company. Lack of Liquidity. The Seller understands
that: (i) the Buyer is a start-up company with little operating history and no
demonstrated ability to generate sufficient revenue to produce profits or even
maintain itself as a going concern; (ii) its investment in the Shares will be
highly speculative; (iii) in addition to the restriction on transfer during the
one-year period imposed by law, liquidity may be further reduced by the market
for the shares, and it may have to hold the Shares for an indefinite period of
time; and (iv) its investment in the Shares could become worthless during such
period.
f. Sophisticated Investor. The Seller has had significant
experience with investments and with businesses engaged in business similar to
that in which the Buyer is engaged and significant prior investment experience;
and it has such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of the investment in the Shares
and of making an informed investment decision.
g. Taxes. The Seller agrees that it is aware that it may incur a
present tax liability upon its receipt of the Shares. The Buyer has not offered
Seller any advice concerning this potential tax liability, and possible
contingencies and has no need for liquidity in the Shares.
2.02 Payment of Promissory Note. The Corporation has heretofore
borrowed from the Seller various amounts. Seller agrees to accept a Promissory
Note (Exhibit 1) in the amount of Six hundred ($600,000.00) thousand dollars as
payment for all amounts now outstanding. The buyer agrees to pay said Promissory
Note as follows:
a. The Buyer will pay the Seller fifty thousand and no/100 dollars
($50,000.00) together with accrued interest on or before September 15th
2003; and
b. The Buyer will pay the Seller Fifty thousand and no/100 dollars
($50,000.00) together with accrued interest on or before October 15th 2003;
and
c. The Buyer will repay the Seller fifty thousand and no/100 dollars ($50,000)
together with accrued interest on or before November 15th 2003; and
d. The Buyer will repay the Seller Fifty thousand and no/100 dollar
($50,000.00) together with accrued interest on or before December 15th
2003; and
e. The Buyer will pay the Seller fifty thousand and no/100 dollars
($50,000.00) together with accrued interest on or before January 15th 2004;
and
f. The Buyer will pay the Seller Fifty thousand and no/100 dollars
($50,000.00) together with accrued interest on or before February 15th
2004; and
g. The Buyer will repay the Seller fifty thousand and no/100 dollars ($50,000)
together with accrued interest on or before March 15th 2004; and
h. The Buyer will repay the Seller Fifty thousand and no/100 dollar
($50,000.00) together with accrued interest on or before April 15th 2004;
and
i. The Buyer will pay the Seller fifty thousand and no/100 dollars
($50,000.00) together with accrued interest on or before May 15th 2004; and
j. The Buyer will pay the Seller Fifty thousand and no/100 dollars
($50,000.00) together with accrued interest on or before June 15th 2004;
and
k. The Buyer will repay the Seller fifty thousand and no/100 dollars ($50,000)
together with accrued interest on or before July 15th 2004; and
l. The Buyer will repay the Seller Fifty thousand and no/100 dollar
($50,000.00) together with accrued interest on or before August 15th 2004;
and
2.03 SHARES SET ASIDE FOR CAPITAL RAISE. The Buyer has agreed to
set aside five million shares from their authorized but un-issued capital. One
Million unregistered and restricted shares shall be sold to raise the initial
cash requirement. The remaining four million shares shall be available for a
capital raise to be completed within twelve months from the closing. It is
mutually agreed by all parties that these shares shall not be sold for less than
$.835 per share and the Buyer has retained the right to increase the offering
price.
2.04 Piggy Back Registration Rights. The Buyer agrees to include
all of the shares owned by the Seller in the first available registration
statement. Therefore the Buyer has agreed to give the Seller "Piggy- Back
Registration Rights".
ARTICLE III
REPRESENTATIONS AND WARRANTIES FROM THE MANAGEMENT AND THE SELLER
The Seller, jointly and severally, represent, warrant and covenant that:
3.01 Organization and Good Standing. The Corporation is a
corporation dully organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, with all requisite power and
authority to carry on the business in which it is and/or has been engaged, to
own the properties it owns, to execute and deliver this Agreement, to consummate
the transactions contemplated hereby and to take all of the other actions
provided for in or contemplated hereby. The Corporation is and has been
qualified to transact business and is in good standing in all jurisdictions
where the nature or conduct of its business so requires.
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3.02 Authorization and Validity. The execution, delivery and
performance of this Agreement by Management or the Seller, as the case may be,
is duly authorized by the respective Board of Directors of Seller and
constitutes the valid and binding agreement of the Seller, enforceable in
accordance with its terms, and neither the execution or delivery of this
Agreement nor the consummation by the Seller of the transaction contemplated
hereby (i) violates any statue or law or any rule, regulation or order of any
court or any governmental authority, or (ii) violates any statue or law or any
rule, or constitutes a default under or will constitute a default under, any
contract, commitment, agreement, understanding, arrangement, or restriction of
any kind to which the Corporation or Seller are a party or by which the Seller
or the Corporation are bound. Each Seller has full right and power to sell and
deliver the assignment of partnership interest owned by it to the Buyer as
contemplated by this Agreement.
3.03 No Violations. Neither the execution, delivery or performance
of this Agreement nor the consummation of any of the transactions contemplated
hereby now or at any time, in the future (whether with the giving of notice or
passage of time or both) will (a) conflict with, or result in a violation or
breach of the terms, conditions and provisions of, or constitute a default
under, the Articles of Incorporation or by-laws or Corporation or any agreement,
indenture or other instrument or undertaking of any kind or nature under which
Corporation is bound or to which the assets of Corporation are subject, or
result in the creation or imposition on any lien, claim, charge or encumbrance
upon any of such assets or upon any of the stock of Corporation, or (b) violate
or conflict with any judgment, decree, order, statue, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over Corporation or the properties or assets of Corporation.
Corporation has complied in all material respects with all applicable laws,
regulations and licensing requirements, and to best of its knowledge has or will
file with the proper authorities all necessary statements and reports, tax
returns and all other filings of any kind or nature due at any time up through
the Closing Date. Corporation possesses all necessary licenses, franchises,
permits and governmental authorizations to conduct its business as now or
heretofore conducted and as this Agreement contemplates it will be conducted
after the Closing.
3.04 Capitalization. As of the date hereof the Seller has 100% of
the Membership Interest of the Corporation
3.05 Corporate Records. The copies of the Articles of
Incorporation and all amendments thereto and the by-laws of Corporation that
will be delivered to Buyer at the Closing will be true, correct and complete.
The minute book of Corporation, copies of which will be delivered to Buyer at
the Closing will contain minutes of all meetings of and consents to all actions
taken without meetings by the Board of Directors and the shareholders of
Corporation since the formation of Corporation, all of which will be accurate in
all material respects. The books and records, financial and other of Corporation
are in all material respects complete and correct and have been maintained in
accordance with good business and accounting principles.
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3.06 Financial Statement. The reviewed financial statements of
Corporation for the period March 31, 2003 will fairly present the financial
position of Corporation as of the balance sheet dates included therein and the
results of its operations and changes in cash flow for the period covered. The
Corporation Financial Statements have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved reconciled, if necessary, to U.S. GAAP. Each of the balance sheets
contained in the Corporation Financial Statements presents fairly the financial
condition as of its date. The Corporation did not have, as of the date of each
such balance sheet, except as to the extent reflected or reserved against
therein, any liabilities or obligations (absolute or contingent) which should be
reflected in the balance sheet or the notes thereto prepared in accordance with
generally accepted accounting principles. Such statements of operations and
stockholders' equity present fairly the result of operations and changes in
stockholder's equity of Corporation for the periods indicated. Such statements
of changes in cash flow present fairly the information which should be presented
therein in accordance with generally accepted accounting principles.
3.07 Absence of Liabilities. Except as disclosed on the financial
statements, the Corporation has no liabilities, whether fixed or contingent, due
or not yet done, asserted or not yet asserted, including without limitation all
amounts which may be due under any contracts, agreements or undertakings entered
into by or on behalf of Corporation except as set forth hereto. In addition,
Corporation has not guaranteed, become liable for or agreed to stand behind or
assume the obligations of any person or entity, and is not contingently liable
for any debt, obligation, expense or liability.
3.08 Absence of Certain Changes. Since March 31st 2003, except for
having to guarantee a possible $48,000 payment to Royal Avalon, the Corporation
has not (a) suffered any material adverse change in its financial condition,
assets, liabilities or business; (b) contracted for or paid any capital
expenditures; (c) acquired or disposed of any assets or incurred any
indebtedness or borrowed money, issued or sold any debt or equity securities or
discharged or incurred any liabilities or obligations except in the ordinary
course of business as heretofore conducted; (d) mortgaged, pledged or subjected
to any lien, lease, security interest or other charge or encumbrance any of
their properties or assets; (e) paid any material amount of indebtedness prior
to the due date, forgiven or any material amount on any indebtedness prior to
the due date, forgiven or canceled any material debts or claims or released or
waived any material rights or claims; (f) suffered any damage or destruction to
or loss of any assets (whether or not covered by insurance); (g) made any
payments to its affiliates or associates or loaned any money to any person or
entity; (h) formed or acquired or disposed of any interest in any corporation,
partnership, joint venture or other entity; (i) entered into any employment,
compensation, consulting or collective bargaining agreement or any other
agreement of any kind or nature with any person or group, or modified or amended
in any respect the terms of any such existing agreement; (j) entered into any
other commitment or transaction or experience any other event that relates to or
affect in any way this Agreement or to the transactions contemplated hereby, or
that has affected, or may adversely affect Corporation's business, operations,
assets, liabilities or financial condition; or (k) amended its Certificate of
Incorporation or by-laws.
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3.09 Disclosure. No representation or warranty by Management or the
Seller in the Agreement nor any statement or certificate furnished or to be
furnished by it pursuant hereto or in connections with the transaction
contemplated hereby contains or will contain any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained therein not misleading or necessary in order to provide Buyer with
complete and accurate information
3.10 Consents. No authorization, consent, approval, permit or
license of, or filing with, any governmental or public body or authority, any
lender or lessor or any person or entity is required to authorize, or is
required in connection with the execution, delivery and performance of this
Agreement, the agreements contemplated hereby, or the consummation of the
transactions contemplated hereby or thereby, on the part of either the Seller or
Management.
3.11 Compliance with Laws. There are no existing violations of any
applicable federal, state or local regulation involving the property or business
of Corporation; there are no known, noticed or threatened violations or any
state of facts involving Corporation which would constitute such a violation;
and this Agreement and the consummation of the transactions contemplated hereby
will not give rise to any such violation.
3.12 Litigation. With the exception of non-material normal business
issues, Management and the Seller have not had any legal action or
administrative proceeding or investigation instituted or threatened against
them. The Management and the Seller are not (a) subject to any continuing court
or administrative order, writ, injunction or decree applicable specifically to
Corporation, the Seller or to their business, assets, operations or employees,
or (b) in default with respect to any such order, writ, injunction or decree.
Such persons know of no basis for any such action, proceeding or investigation.
3.13 Tax and Franchise Returns. The Corporation will prepared and
filed, or cause to be filed, with the appropriate national (including, if
applicable the U.S. Internal Revenue Service), state and local government
agencies, and all political subdivisions thereof, all tax and franchise returns
required to be filed by, on behalf of or on account of the operations of
Corporation; all such returns required to be filed have been so filed; and all
taxes, assessments, interest and penalties required to be paid in respect of all
periods covered thereby have and will be paid.
3.14 Contracts. There are no material contracts, employee fringe
benefits, leases or other commitments to which Corporation is a party or by
which it is bound. Corporation is not now nor has it been in breach or violation
of the terms of any Material Contract.
3.15 Approval of Third Parties. To the extent any consent and
approvals of third parties are necessary to effect the transactions contemplated
in this agreement, the Seller will obtain written consent from Management to
execute this Agreement.
3.16 Investment Intent. the Seller represents and confirms to the
Buyer that it (a) is aware of the limits on resale imposed by virtue of the
nature of this Agreement, and (b) that none of the Exchange Shares have not been
registered under the Securities Act of 1933, as amended (the "1933 Act") in
reliance on the exemption from registration contained in Section 4(2) of the
1933 Act, for investment and without any view to the sale, resale or other
distribution thereof in any manner that is in violation of the 1933 Act. The
certificates representing such securities, when delivered to the Seller, may
have appropriate orders restricting transfer placed against them on the records
of the transfer agent for such securities and will have placed upon them the
following legend"
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"THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE BEEN ACQUIRED FOR INVESTMENT AND HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. THESE SECURITIES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR IN ACCORDANCE WITH AN
APPLICABLE EXEMPTION THERE FROM UNDER SAID ACT.
3.17 Title to Property and Related Matters. The Corporation has
good and marketable title to all the properties, interests in properties and
assets, real, personal and mixed, reflected on the Corporation's Balance Sheet.
3.18 Transferor's Title to the Membership Interest of Corporation
Common. the Seller is the lawful Seller, of record and beneficially, of the
Membership Interest of Corporation designated opposite his or its name on hereto
and has, and will transfer to the Buyer at the closing, good and marketable
title to the Membership Interest to be sold to Buyer hereunder, free and clear
of any claims, liens, charges or encumbrances of any kind and with no
restriction on the voting rights and other incidents of record and beneficial
ownership pertaining thereto. There are no outstanding options, warrants or
rights to purchase or acquire any of the membership interests of the Corporation
owned by the Seller, and there are no agreements or understandings between the
Seller and any other person with respect to the Membership Interest of
Corporation owned by the Seller or any other matter. The Seller further
represents and warrants that such the Seller has full right and power to sell
and deliver the Membership Interest owned by it to the Buyer as contemplated by
this Agreement.
ARTICLE IV
INDEMNIFICATION
4.01 Mutual Indemnification. The CORPORATION and the Seller
agree, jointly and severally, to indemnify, defend and hold harmless the Buyer
(and their respective officers and directors) and the Buyer agree to indemnify,
defend and hold harmless the management and the Seller, from and against any and
all liabilities, damages, losses, claims, costs and expenses (including
reasonably attorney's fees) suffered or incurred as a result of any
misrepresentation or breach of any of their respective representations and
warranties or non-performance of any of their respective covenants, agreements
or obligations to be performed under this Agreement.
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4.02 Notice of Claim. In the event that any legal proceedings shall
be instituted or that any claim shall be asserted by any person in respect of
which payment may be sought by any party hereto (the "Claimant") from any other
party hereto (the "Indemnitor") under the provisions of this Article 4, the
Claimant shall promptly cause written notice of the assertion of any claims of
which it, he or they, have knowledge which is covered by this indemnity to be
forwarded to the Indemnitor, and the Indemnitor shall have the right, at its,
his or their option and sole expense, to be represented by counsel of its choice
and to defend against, negotiate, settle or otherwise deal with any proceeding,
claim or demand which relates to any loss, liability, damage or deficiency
indemnified against hereunder; provided, however, that the Claimant may
participate in any such proceeding with counsel of its choice and at its
expense. To the extent the Indemnitor elects not to defend such proceeding,
claim or demand and the Claimant defends against, settles or otherwise deals
with such proceeding, claim or demand, the Claimant will act reasonably and in
accordance with its good faith business judgment. The parties hereto agree to
cooperate fully with each other in connection with the defense, negotiation or
settlement of any such legal proceeding, claim or demand. After any final
judgment or award shall have been rendered by a court, arbitration board or
administrative agency of competent jurisdiction and the expiration of the time
in which to appeal there from, or a settlement shall have been consummated, or
the Claimant and the Indemnitor shall have arrived at a mutually binding
agreement with respect to each separate matter indemnified by the Indemnitor
hereunder, the Claimant shall forward to the Indemnitor notice of any sums due
and owing by it pursuant to this Agreement with respect to such matter and the
Indemnitor shall be required to pay all of the sums so owing to the Indemnitor
within ten (10) days after the date of such notice.
ARTICLE V
POST CLOSING CONDITIONS
5.01 Board Representation. At the Closing, the current number of
the Board of Directors of Buyer is three. The Seller shall have the right to
appoint two additional member to the board and retain the right to two
additional Board Seats. The total number of board seats will be five seats.
5.02 Lock up. All other parties to this agreement, including the
Officers and Directors of the Buyer must sign and execute a lock agreement in
regards to ownership of their shares. The lock agreement should read will
restrict all parties from selling any unless the average thirty day closing bid
price is greater than $1.25 bid and all party agree not to sell any shares until
the price of $1.25 on the bid has been maintained for the thirty days prior to
the anniversary of the execution of these document. Upon the first day after the
anniversary of the execution of the Lock-up agreement and the price is above
$1.25 each party shall have the right to sell not more than 40,000 shares in a
calendar year except for the Seller who then shall have the right with the
consent of the company to file a registration statement, the cost of which will
be incurred by the Buyer, to sell 1,500,000 shares they own, if the Price is
above $2.00 each party shall have the right to sell not more than 50,000 shares
in a calendar year, and if the Price is above $3.00 each party shall have the
right to sell not more than 100,000 shares in a calendar year, $4.00 each party
shall have the right to sell not more than 100,000 shares in a calendar year,
and the lock is released upon the Stock trading for a ninety moving average @
above $5.00 per share.
5.03 Vendor Inducement. In a continuing effort to induce certain vendor
to provide the company with more favorable term and conditions the Buyer will
deposit with the Seller or its nominee, 400,000 shares to assist certain vendors
into restructuring their current billing arrangement. Seller has agreed to
assist the company in negotiating the most favor deals for the Corporation.
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5.04 XXXX ONE. the Buyer shall pay Xxxx One 250,000 restricted shares
as payment as a finders fee on behalf of all parties. Xxxx One has currently
made two loans in the amount of $45,000 to the Corporation and has introduced
three convertible note holders to the Corporation in the amount of $135,000. The
Buyer will repay the note to Xxxx One on August 15th, 2003. The convertible note
holder in the amount of $135,000 will be converted into 290,000 restricted
shares. Buyer will indemnify and save Seller harmless from any and all liability
that may result for Xxxx One Agreement, attached as Exhibit "A"
ARTICLE VI
BUYER'S REPRESENTATION AND WARRANTIES
6.01 Representations of Buyer. No representations or warranties
are made by any director, officer, employee, or shareholder of buyer as
individuals, except as and to the extent stated in this Agreement or in a
separate written statement.
6.02 Organization and Good Standing. The Corporation is a
corporation dully organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, with all requisite power and
authority to carry on the business in which it is and/or has been engaged, to
own the properties it owns, to execute and deliver this Agreement, to consummate
the transactions contemplated hereby and to take all of the other actions
provided for in or contemplated hereby. The Corporation is and has been
qualified to transact business and is in good standing in all jurisdictions
where the nature or conduct of its business so requires.
6.03 Authorization and Validity. The execution, delivery and
performance of this Agreement by Management or the Seller, as the case may be,
is duly authorized by the respective Board of Directors of Seller and
constitutes the valid and binding agreement of the Seller, enforceable in
accordance with its terms, and neither the execution or delivery of this
Agreement nor the consummation by the Seller of the transaction contemplated
hereby (i) violates any statue or law or any rule, regulation or order of any
court or any governmental authority, or (ii) violates any statue or law or any
rule, or constitutes a default under or will constitute a default under, any
contract, commitment, agreement, understanding, arrangement, or restriction of
any kind to which the Corporation or Seller are a party or by which the Seller
or the Corporation are bound. The Seller has full right and power to sell and
deliver the Membership Interest of the Corporation owned by it to the Buyer as
contemplated by this Agreement.
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6.04 No Violations. Neither the execution, delivery or performance
of this Agreement nor the consummation of any of the transactions contemplated
hereby now or at any time, in the future (whether with the giving of notice or
passage of time or both) will (a) conflict with, or result in a violation or
breach of the terms, conditions and provisions of, or constitute a default
under, the Articles of Incorporation or by-laws or Corporation or any agreement,
indenture or other instrument or undertaking of any kind or nature under which
Corporation is bound or to which the assets of Corporation are subject, or
result in the creation or imposition on any lien, claim, charge or encumbrance
upon any of such assets or upon any of the stock of Corporation, or (b) violate
or conflict with any judgment, decree, order, statue, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over Corporation or the properties or assets of Corporation.
Corporation has complied in all material respects with all applicable laws,
regulations and licensing requirements, and has filed with the proper
authorities all necessary statements and reports, tax returns and all other
filings of any kind or nature due at any time up through the Closing Date.
Corporation possesses all necessary licenses, franchises, permits and
governmental authorizations to conduct its business as now or heretofore
conducted and as this Agreement contemplates it will be conducted after the
Closing.
6.05 Capitalization. As of the date hereof the authorized capital
of BUYER is now 400 million common shares, and 10 million Preferred Shares as
accurately set forth in its most recent 10-Q for the quarter ending January 31,
2003, on file with the Securities and Exchange Commission (as subsequently
adjusted for the 1 for 20 reverse stock split completed in February 2003); the
fully diluted shares outstanding is approximately 6,781,591 million common
shares; The Company also has 12 million Class B common shares issued and
outstanding which are voting shares but do not represent an economic interest in
the Company. The Buyer in the process of returning to the Buyer's Treasury
375,000 preferred shares and 1,100,000 shares of common stock, and canceling
650,000 cashless warrants prior to closing of the transaction. The Buyer shall
secure the Proxy from 12 Million Class B common shares, if Seller and Buyer both
agree that if its is necessary and in the best interest to further restructure
the Tango Incorporation.
6.06 Financial Statement. The reviewed financial statements of
Buyer for the period January 31, 2003 fairly present the financial position of
the Buyer as of the balance sheet dates included therein and the results of its
operations and changes in cash flow for the period covered. The Buyer's
Financial Statements have been prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods involved
reconciled, if necessary, to U.S. GAAP. Each of the balance sheets contained in
the Buyer's Financial Statements presents fairly the financial condition as of
its date. The Buyer did not have, as of the date of each such balance sheet,
except as to the extent reflected or reserved against therein, any liabilities
or obligations (absolute or contingent) which should be reflected in the balance
sheet or the notes thereto prepared in accordance with generally accepted
accounting principles. Such statements of operations and stockholders' equity
present fairly the result of operations and changes in stockholder's equity of
the Buyer for the periods indicated. Such statements of changes in cash flow
present fairly the information which should be presented therein in accordance
with generally accepted accounting principles.
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6.07 Absence of Liabilities. The Buyer has no liabilities,
whether fixed or contingent, due or not yet done, asserted or not yet asserted,
including without limitation all amounts which may be due under any contracts,
agreements or undertakings entered into by or on behalf of the Buyer except as
set forth hereto. In addition, the Buyer has not guaranteed, become liable for
or agreed to stand behind or assume the obligations of any person or entity, and
is not contingently liable for any debt, obligation, expense or liability.
6.08 Disclosure. No representation or warranty by the Buyer in the
Agreement nor any statement or certificate furnished or to be furnished by it
pursuant hereto or in connections with the transaction contemplated hereby
contains or will contain any untrue statement of a material fact or omits to
state a material fact necessary to make the statements contained therein not
misleading or necessary in order to provide the Seller and Management with
complete and accurate information.
6.09 Compliance with Laws. There are no existing violations of any
applicable federal, state or local regulation involving the property or business
of the Buyer; there are no known, noticed or threatened violations or any state
of facts involving the Buyer which would constitute such a violation; and this
Agreement and the consummation of the transactions contemplated hereby will not
give rise to any such violation.
6.10 Litigation. With the exception of non-material normal business
issues, the Buyer has not had any legal action or administrative proceeding or
investigation instituted or threatened against them. The Buyer are not (a)
subject to any continuing court or administrative order, writ, injunction or
decree applicable specifically to the Buyer, or to their business, assets,
operations or employees, or (b) in default with respect to any such order, writ,
injunction or decree. Such persons know of no basis for any such action,
proceeding or investigation.
ARTICLE VII
MISCELLANEOUS
7.01 Amendment. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by the party against
which enforcement of the amendment, modification or supplement is sought.
7.02 Parties in Interest. This Agreement shall be binding on and
inure to the benefit of and be enforceable by Seller, Management and the Buyer,
their respective heirs, executors, administrators, legal representative,
successors and assigns. The representations, warranties, and other provisions
hereof shall survive the Closing.
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7.03 Assignment. Neither this Agreement nor any right created
hereby shall be assignable by any party hereto.
7.04 Jurisdiction. Agents for Service of Process. Any judicial
proceeding brought against any of the parties to this Agreement on any dispute
arising out of this Agreement or any matter related hereto may be brought
exclusively the courts of the Federal Court System of the 9th District Court of
Oregon, or in the United States District Court of Oregon, and, by execution and
delivery of this Agreement, each of the parties to this Agreement accepts the
exclusive jurisdiction of such courts, and irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Agreement, subject to the
results of any appeals. The Buyer hereby appoints respectively Xxxxx Xxxxxxxxx
and the Seller hereby appoint Xxxxxx Xxxxxx as their respective agents to
receive on its or their behalf service of process in any proceeding in any such
court. The foregoing consents to exclusive jurisdiction and appointments of
agents to receive service of process shall not constitute general consents to
service of process any purpose except as provided above and shall not be deemed
to confer rights on any person other than the respective parties to this
Agreement. The prevailing party or parties in any such litigation shall be
entitled to receive from the losing party or parties all costs and expenses,
including reasonable counsel fees, incurred by the prevailing party or parties.
7.05 Notice. Any notice or other communications hereunder must be
in writing and given by depositing the same in the United States mail, addressed
to the party to be notified, postage prepaid and registered or certified with
return receipt requested or by delivering the same in person against receipt.
Notice shall be deemed received on the date on which it is hand delivered or on
the third business day following the date on which it is so mailed.
For purposes of notice, the addresses of the parties shall be:
If to the Seller:
Xxxxxx X. Xxxxxx
Springfield Investment Company
0000 Xxxxx Xxxxx
Xxxx Xxxx, Xxxx 00000
000-000-0000
If to Buyer:
Tango Incorporated
Attn: Xxxx Xxxxxxxx
000-0000-00xx Xxx XX
Xxxxxxx, Xxxxxxx X0X 0X0
403-209-4174
Any party may change its address or addresses for notice by written
notice given to the other parties in a manner describe herein.
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7.06 Entire Agreement. This Agreement and the exhibits hereto
supersede all prior agreements and understandings between the parties relating
to the subject matter hereof, except that the obligations of any party under any
agreement executed pursuant to this Agreement shall not be affected by this
Section.
7.07 Costs, Expenses and Legal Fees. Whether or not the
transactions contemplated hereby are consummated, each party hereto shall bear
its own costs and expenses (including attorneys' fees) except that each party
hereto agrees to pay the costs and expenses, including reasonable attorneys'
fees, incurred by the other parties in successfully (i) enforcing any of the
terms of this Agreement against a party alleged to be in breach, or (ii) proving
that the other parties breached any of the terms of this Agreement in any
material respect.
7.08 Severability. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision or by its severance hereof. Furthermore, in lieu of such
illegal, invalid or unenforceable provision, there shall be added automatically
as part of this Agreement, a provision as similar in its terms to such illegal,
invalid or unenforceable provision as may be possible and still be legal, valid
and enforceable.
7.09 Governing Law. This Agreement and the rights and obligations
of the parties hereto shall be governed, construed and enforced in accordance
with the laws of the Federal Law of the 0xx Xxxxxxxx Xxxxx of the Federal Court
System. The parties agree that any litigation relating directly or indirectly to
this Agreement must be brought before and determined by a court of competent
jurisdiction sitting in the 0xx Xxxxxxxx Xxxxx of the Federal Court System of
the United States of America.
7.10 Captions and Gender. The captions in this Agreement are for
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereto. Whenever required by the context hereof, the
singular shall include the plural and vice versa; the masculine gender shall
include the feminine and neuter gender and vice versa: the word "person" shall
include a natural person as well as a corporation, partnership, firm or other
form of association.
7.11 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same instrument.
7.12 Waiver. No waiver of any term or provision hereof shall be
effective unless in writing, signed by the parties to be charged.
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7.13 Exhibits and Schedules. The Exhibits and Schedules are a part
of and are incorporated into this Agreement. Each fact or statement recited or
contained in any exhibit, schedule, certificate or other instrument delivered by
or on behalf of the parties hereto, or in connection with the transactions
contemplated hereby, shall be deemed a representation and a warranty hereunder.
7.14 Confidential Information. Except in connection with the
consummation of transactions contemplated herein, each party agrees not to
disclose any confidential information or trade secrets received by it from any
other party pursuant to the terms of this Agreement, including but not limited
to, the contents of customer lists. In the event this Agreement is terminated
for any reason, each party shall continue to hold such information in confidence
and shall, to the extent requested by the party from which the information was
received, promptly return to the latter all written material received from it.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date first written above.
Tango Incorporated
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx Xxxxx
---------------------------- -----------------------------
Xxxx Xxxxxxxx, COO Xxxxxx Xxxxx, President
Pacific Print Works LLC
/s/ Xxxxxx Xxxxxx /s/ Xxxxx Xxxxxxxxx
---------------------------- -----------------------------
Xxxxxx Xxxxxx, President Xxxxx Xxxxxxxxx, Director
