ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is made effective as of this18th
day of January 2006 by and among TRIBEKA TEK, INC. (""TTI" or "Buyer"), a
corporation with the principal office located at 0000 00 Xx., Xxxxxxxx, XX
00000, and NYN International LLC. ("NYN" or "Seller") Texas Corporation located
at 0000 Xxxxx Xxxx., Xxxxxxx, Xx. 00000.
RECITALS
A. Buyer desires to purchase from Seller the Purchased Assets on the following
terms and conditions; and
B. Seller desires to sell to Buyer the Purchased Assets on the following terms
and conditions.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, representations, warranties, conditions, and agreements hereinafter
expressed, the Parties agree as follows:
ARTICLE I. DEFINITIONS
In addition to those capitalized terms defined throughout this Agreement, the
following terms shall have the meanings ascribed to them here below:
1.1 "CLOSING" means the consummation of the transactions contemplated by this
Agreement.
1.2 "CLOSING DATE" MEANS THE date hereof, or such later mutually agreeable date
within ten (10) days of the date hereof as the Parties may designate in writing.
1.3 "EFFECTIVE TIME" means the effective time of the Closing, which shall be as
of 11:59 p.m. on the day preceding the Closing Date.
1.4 "PERSON" means any natural person, any corporation, partnership, limited
liability company, limited liability partnership, joint venture, association,
company, or other legal entity, and any Government.
ARTICLE II.
PURCHASE AND SALE OF PURCHASED ASSETS
2.1 ASSETS TO BE PURCHASED.
a) Subject to the terms and conditions hereof on the Closing Date, and as of the
Effective Time, Seller shall sell to Buyer, free and clear of all liens, claims,
restrictions or encumbrances of any kind, unless otherwise provided herein, all
assets and property and associated rights and interests, real, personal, and
mixed, tangible and intangible, of whatever kind, owned, used or held for use by
Seller (the "Purchased Assets") in connection with the business and operations
of Seller (the "Business"). Without limiting the generality of the foregoing,
the Purchased Assets include the following items:
(i) All assets reflected and/or described on the asset list attached as Schedule
-------- A;
(ii) All accounts receivable of Seller in connection with the Business;
(iii) All contracts of Seller with customers, all contracts for the leasing of
equipment by Seller and all of Seller's software licenses or other intellectual
property licenses;
(iv) All permits, approvals, licenses and certifications issued to Seller by any
government authority or by a private testing or certifying authority in
connection with the Business, to the extent assignable under the terms thereof
and applicable law;
(v) All patents, trademarks, service marks, trade names, corporate names,
copyrights, and copyrighted works; registrations thereof and applications
therefore; trade secrets, software (whether in source code or object code),
firmware, mask works, programs, inventions, discoveries, proprietary processes,
and items of proprietary know-how, information, data or intellectual property,
proprietary prospect lists, customer lists, projections, analyses, and market
studies; and licenses, sublicenses, assignments, and agreements in respect of
any of the foregoing (the "Intellectual Property"), documentation thereof and
the goodwill associated therewith and the right and power to assert, defend and
recover title thereto in the same manner and to the same extent as Seller could
or could cause to he done if the transactions contemplated hereby did not occur,
and the right to recover for past damages on account of the infringement,
misuse, or theft thereof. (vi) All records, including business, computer,
engineering, and other records, and all associated documents, discs, tapes, and
other storage or recordkeeping media of Seller prepared or held in connection
with the Business, including but not limited to all sales data, customer lists,
accounts, bids, contracts, supplier records, and other data and information of
the Business, excluding corporate minute books of Seller;
(vii) All rights and claims against others under contracts; and
(viii) All other claims against others, rights, and choses in action, liquidated
or unliquidated, of Seller arising from the Business, including those arising
under insurance policies.
2.2 CONSIDERATION. The consideration to be paid by Buyer to Seller shall be as
follows:
Buyer has effected a forward split of 826.67 shares for every one share of
Tribeka Tek, Inc. outstanding, bringing the outstanding shares from 1500 to
1,240,000.
Upon Closing Buyer will deliver 2,760,000 restricted shares to shareholders of
NYN International LLC., to be designated by Seller and authorized the Name
change from Tribeka Tek, Inc. to VGTel, Inc.
Buyer appointed Xxx Xxxxxx as CEO, Chairman and Treasurer, and Xxxxxx Xxxxx as
VP Marketing & Director and Xxxx Xxxxxx as Secretary. Xxxxx Xxxxxxxx and Xxxxx
Xxxxxxxx resigned as officers and directors.
Buyer undertakes to conduct best efforts to prepare all of the necessary filings
and due diligence for filing an SB-2 with the SEC. Once effective, buyer shall
arrange with market maker for filing an A-211 and shall be responsible for
coordinating all of the steps necessary to submit the appropriate information to
the NASD.
2.3 CLOSING. The Closing shall take place at 12:00 p.m. on the Closing Date via
email and fax communication.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby make the following representations and warranties, each of which
is true and correct on the date hereof and each of which shall be true and
correct on the Closing Date and shall survive the Closing Date and the
transactions contemplated hereby.
3.1 CORPORATE EXISTENCE AND POWER OF SELLER. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Texas. Except as set forth on the attached Schedules, Seller has the
corporate power and authority to own and use its assets and to transact the
business in which it is engaged, holds all franchises, licenses and permits
necessary and required therefore, is duly licensed or qualified to do business
as a foreign corporation and is in good standing in each jurisdiction where such
license or qualification is required. Seller has the corporate power to enter
into this Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby.
3.2 APPROVAL AND ENFORCEABILITY OF AGREEMENT. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized, approved and ratified by all necessary action on the part of
Seller. Certified copies of all required resolutions, authorizations, consents,
approvals and/or ratifications have been provided to Buyer and no such
resolution, authorization, consent or approval has been altered, amended,
rescinded, repealed or revoked. Seller has full authority to enter into and
deliver this Agreement, to perform its obligations hereunder, and to consummate
the transactions contemplated hereby. Assuming the due execution and delivery
hereof by Buyer, this Agreement is the legal, valid and binding obligation of
Seller, enforceable against Seller according to its terms.
3.3 UNDISCLOSED LIABILITIES. Seller does not have any liabilities whatsoever,
known or unknown, asserted or unasserted, liquidated or unliquidated, accrued,
absolute, contingent, or otherwise, and there is no basis for any claim against
Seller for any such liability except (a) to the extent set forth in the
Financial Statements, or (b) to the extent set forth on Schedule B. ----------
3.4 TAXES. Except as set forth on Schedule B, all tax and information ----------
returns required to be filed by Seller on or prior to the Closing Date with
respect to taxes imposed on or assessed to Seller have been or will be timely
filed. All amounts shown on each of such returns have been paid or will be paid
when due. Any taxes which are to be assumed by Buyer in respect of the Purchased
Assets which at the Closing Date are not yet due and owing will be adequately
reflected on Schedule B. There are no grounds for the assertion or assessment of
-------- - any taxes against Seller, the Purchased Assets or the Business other
than those reflected or reserved against on the Financial Statements or Schedule
B hereto. ---------- Neither the Purchased Assets nor the Business are
encumbered by any liens arising out of any unpaid taxes and there are no grounds
for the assertion or assessment of any liens against the Purchased Assets or the
Business in respect of any taxes (other than liens for taxes if payment thereof
is not yet required, and which are set forth on Schedule B hereto). The
transactions contemplated by ---------- this Agreement will not give rise to (i)
the creation of any liens against the Purchased Assets or the Business in
respect of any taxes or (ii) the assertion of any additional taxes against the
Purchased Assets or the Business. There is no action or proceeding or unresolved
claim for assessment or collection, pending or threatened, by, or present or
expected dispute with, any government authority for assessment or collection
from Seller of any taxes of any nature affecting the Purchased Assets or the
Business There is no extension or waiver of the period for assertion of any
taxes against Seller affecting the Purchased Assets or the Business. None of the
Purchased Assets are subject to a tax indemnification agreement.
3.5 PERSONAL PROPERTY - OWNED. Except as set forth on Schedule A ----------
hereto, Seller has good and marketable title to all personal property included
in the Purchased Assets, including in each case all personal property reflected
in the Financial Statements or acquired after the date thereof (except any
personal property subsequently sold in the ordinary course of the Business),
free and clear of all liens, claims and encumbrances and there exists no
restriction on the use or transfer of such property.
3.6 REAL AND PERSONAL PROPERTY - LEASED TO SELLER. Set forth on Schedule G
hereto is a copy of each lease under which Seller is the lessee of --- any real
property in connection with the Business, and on Schedule G hereto is a
---------- description of each lease under which Seller is the lessee of any
personal property in connection with the Business. Seller has delivered to Buyer
a true, correct and complete copy of each lease identified on Schedule G. The
premises ---------- or property described in said leases are presently occupied
or used by Seller as lessee under the terms of such leases. Except as set forth
on Schedule U, all ---------- rentals due under such leases have been paid and
there exists no default under the terms of any such leases and no event has
occurred which, upon passage of time or the giving of notice, or both, would
result in any event of default or prevent Seller from exercising and obtaining
the benefits of any rights or options contained therein. Seller has all right,
title and interest of the lessee under the terms of said leases, free of all
liens and all such leases are valid and in fill force and effect. Except as set
forth on Schedule 0, no ---------- consent is necessary for the assignment to
Buyer of such leases under which Seller is lessee, Upon the Closing, Buyer will
have all right, title and interest of the lessee under the terms of such leases,
free of all liens. There is no default or basis for acceleration or termination
under, nor has any event occurred nor does any condition exist which, with the
passage of time or the giving of notice, or both, would constitute a default or
basis for acceleration under any underlying lease, agreement, mortgage or deed
of trust which default or basis for acceleration would adversely affect any
lease described on Schedules U or the property or use of the property covered by
such lease. --- Subject to any consent required of a lessor as set forth on
Schedule U, there ---------- will be no default or basis for acceleration under
any such underlying lease, agreement, mortgage or deed of trust as a result of
the transactions provided for in this Agreement.
3.7 INTELLECTUAL PROPERTY.
(a) Schedule H contains a true, complete and accurate list of all ----------
Seller's Intellectual Property.
3.8 NECESSARY PROPERTY AND TRANSFER OF PURCHASED ASSETS. The Purchased Assets
constitute all of Seller's property and property rights now used, useful or
necessary for the conduct of the Business in the manner and to the extent
presently conducted and planned by Seller. No such assets or property are in the
possession of others and Seller holds no property on consignment. No consent is
necessary to, and there exists no restriction on, the transfer of any of the
Purchased Assets. There exists no condition, restriction or reservation
affecting the title to or utility of the Purchased Assets or Assumed Liabilities
which would prevent Buyer from occupying or utilizing the Purchased Assets or
enforcing the rights under the Assumed Liabilities, or any part thereof to the
same full extent that Seller might continue to do so if the sale and transfer
contemplated hereby did not take place.
Upon the Closing, good and marketable title to the Purchased Assets and the
rights under the Assumed Liabilities shall be vested in Buyer free and clear of
all liens, claims and encumbrances.
3.9 USE AND CONDITION OF PROPERTY. Seller shall take all action necessary to
provide to Buyer the benefit of all manufacturer's warranties and maintenance
contracts covering equipment included in the Purchased Assets, to the extent
that such warranties exist and are in the possession of the Seller. Seller has
taken no action nor has Seller failed to take any action that might nullify or
release any such manufacturer from any liabilities under such warranties or
maintenance contracts.
EXCEPT AS PROVIDED HEREIN, NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IS
MADE WITH RESPECT TO THE CONDITION OR FITNESS FOR A PURPOSE OR PARTICULAR USE OF
THE ASSETS INCLUDED IN THE PURCHASED ASSETS, IT BEING UNDERSTOOD THAT SUCH
ASSETS ARE ACQUIRED OR PURCHASED BY BUYER IN AN "AS IS" CONDITION.
3.10 LICENSES AND PERMITS. Set forth on Schedule Ehereto is a ----------
description of each license or permit held or pending for the Seller, which
licenses or permits are required for the conduct of the Business together with
the name of the government agency or entity that issues such license or permit.
Such licenses and permits are valid and in full force and effect or are pending,
as indicated on Schedule E. Except as noted on Schedule E, such licenses and
---------- ---------- permits are freely transferable by Seller, and upon
Closing, Buyer will have the right, title and interest of the holder thereof.
3.11 CONTRACTS-DISCLOSURE. Set forth on Schedule Fis a list of all ----------
contracts of Seller. Each contract is a valid and binding obligation of the
parties thereto, enforceable in accordance with its terms, and in full force and
effect. No party to any contract is in breach or violation thereof or default
thereunder. No event has occurred which, through the passage of time or the
giving of notice, or both, would constitute, and neither the execution of this
Agreement nor the Closing do or will constitute or result in, a breach or
violation of or default under any contract, or would cause the acceleration of
any obligation of any party thereto or the creation of a lien upon any Purchased
Asset. Each such contract will be duly assigned to Buyer on the Closing Date and
upon such assignment, Buyer will acquire all right, title and interest of Seller
in and to such contract and will be substituted for Seller under the terms of
such contract. Except as set forth on Schedule F, no consent is required for
---------- such assignment.
3.12 NO BREACH OF LAW OR GOVERNING DOCUMENTS. Except as set forth on Schedule E
Seller has complied with and is not in default under or in breach or --------
violation of any applicable law' of any government body, or the provisions of
any franchise or license, or in default under or in breach or violation of any
provision of its articles or certificate of incorporation or its bylaws. Neither
the execution of this Agreement nor the Closing will constitute or result in any
such default, breach or violation. No government permits or consents are
necessary to effect the transactions contemplated hereby.
3.13 LITIGATION AND ARBITRATION. Except as set forth on Schedule I ----------
hereto, there is no suit, claim, action or proceeding now pending or, to the
best knowledge of Seller, its officers and directors, threatened before any
court, grand jury, administrative or regulatory body, government agency,
arbitration or mediation panel or similar body, nor are there any grounds
therefore, to which Seller, officers or directors is a party or which may result
in any judgment, order, decree, liability, award or other determination which
will, or could, individually or in the aggregate, result in a Material Adverse
Change. No such judgment, order, decree or award has been entered against Seller
nor has any such liability been incurred which has, or could have, such effect.
There is no claim, action or proceeding now pending or threatened before any
court, grand jury, administrative or regulatory body, government agency,
arbitration or mediation panel or similar body which will, or could, prevent or
hamper the consummation of the transactions contemplated by this Agreement,
Seller, its officers and directors are not now nor have been threatened or
subject to, and there are no grounds for, any suit, claim, litigation,
proceeding (administrative, judicial, or in arbitration, mediation or
alternative dispute resolution), government or grand jury investigation, or
other action or order, writ, injunction, or decree of any court or other
Government relating to personal injury, death, or property or economic damage
arising from products of the Seller.
3.14 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS AND OTHERS. Except as set
forth on Schedule B, (a) Seller is not indebted to any shareholder, ----------
director, officer, employee or agent of Seller except for amounts due as normal
salaries, wages and bonuses and in reimbursement of ordinary expenses on a
current basis and (b) no shareholder, director, officer, employee or agent of
Seller is indebted to Seller except for advancements for ordinary business
expenses in a normal amount.
3.15 LABOR AGREEMENTS AND EMPLOYMENT AGREEMENTS. Except as set forth on Schedule
F, Seller is not a party to (a) any union collective bargaining, works
---------- council, or similar agreement or arrangement, or (b) any written or
oral employment agreement. True, correct and complete copies of all documents
creating or evidencing any agreement or arrangement listed on Schedule F have
---------- been delivered to Buyer. Seller is in compliance in all material
respects with all laws respecting employment conditions and practices, has
withheld and paid all amounts required by applicable law to be withheld from the
wages and salaries of its employees, and is not liable for any arrears of wages
or any taxes (other than wages and taxes that have not become due or payable) or
penalties for failure to comply with any of the foregoing,
3.16 EMPLOYEE BENEFIT PLANS. Except as set forth on Schedule I, Seller has
---------- no pension, thrift, savings, profit sharing, retirement, incentive
bonus or other bonus, medical, dental, life, accident insurance, benefit,
employee welfare, disability, group insurance, stock appreciation, stock option,
executive or deferred compensation, hospitalization or other similar fringe or
employee benefit plans, programs or arrangements. Each such employee plan or
agreement has been furnished to Buyer. Seller is in compliance with all
provisions of the Employee Retirement Security Act of 1934, as amended
("ERJSA"). Buyer is not required under ERJSA or the Internal Revenue Code of
1986, as amended (the "Code") to establish, maintain or continue any employee
plan agreement maintained by Seller. The consummation of the transactions
contemplated by this Agreement will not (A) entitle any current or former
employee of Seller to severance pay, unemployment compensation or any other
payment, (B) accelerate the time of payment or vesting, or increase the amount
of compensation due to any such employee or former employee, (C) result in any
prohibited transaction described in Section 406 of ERISA or Section 4975 of the
Code for which an exemption is not available, or (D) give rise to the payment of
any amount that would not be deductible pursuant to the terms of Section 280G of
the Code.
3.17 INSURANCE POLICIES. Set forth on Schedule A hereto is a list of ----------
all insurance policies and bonds in force covering or relating to the Purchased
Assets or the Business. Policies thereon described evidence insurance in such
amounts and against such risks and losses as are generally maintained with
respect to comparable businesses and properties.
3.18 BROKER'S FEES. Seller has not retained any broker, finder or agent or
agreed to pay any broker's fees, finder's fees or commissions with respect to
the transactions contemplated by this Agreement.
3.19 BOOKS AND RECORDS. The books of account, stock record books and minute
books and other corporate records of Seller are in all material respects
complete and correct, have been maintained in accordance with good business
practices and the matters contained therein are accurately reflected on the
Financial Statements. The minute books and stock books of Seller have been made
available to Buyer and are correct and complete to the date hereof
3.20 DISCLOSURE. No representation or warranty of Seller herein and no
statement, information or certificate furnished or to be furnished by or on
behalf of Seller pursuant hereto or in connection with the transactions
contemplated hereby contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary in order to make
the statements contained herein or therein not misleading.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties each of which is
true and correct on the date hereof and each of which shall be true and correct
on the Closing Date and shall survive the Closing Date and the sale contemplated
hereby,
4.1 CORPORATE EXISTENCE OF BUYER. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York. Buyer has
the corporate power and authority to own and use its properties and to transact
the business in which it is engaged. As of the date hereof, "TTI" is qualified
to do business in New York. "TTI" does not own any shares of capital stock or
other interest in any corporation, partnership, association or other entity.
4.2 APPROVAL OF AGREEMENT. THE EXECUTION AND delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized,
approved and ratified by all necessary action on the part of Buyer. Copies of
all required resolutions, authorizations, consents, approvals and/or
ratifications have been provided to Seller and no such resolution,
authorization, consent or approval has been altered, amended, rescinded,
repealed or revoked. Buyer has full authority to enter into and deliver this
Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. Assuming the due execution and delivery hereof
by Seller, this Agreement is the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms,
4.3 NO BREACH OF ARTICLES OR INDENTURES. The execution of this Agreement and the
consummation of the transactions contemplated hereby has not and will not
constitute or result in the breach of any of the provisions of, or constitute a
default under, the operating agreement of Buyer, or any material indenture,
evidence of indebtedness or other commitment to which Buyer is a party or by
which it is bound, which breach of default would have a material adverse effect
on the consummation of the transactions contemplated by this Agreement.
4.4 BROKER'S FEES. Buyer has not retained any broker, finder or agent or agreed
to pay any broker's fees, finder's fees or commissions with respect to the
transactions contemplated by this Agreement.
4.5 CAPITALIZATION. The number of authorized, issued and outstanding shares of
Company Stock as of the date hereof is 200,000,000. The number of Shares issued
and outstanding following the issuance and cancellations outlined in Paragraph
2.3 shall be:
An aggregate of 4,000,000 Common Shares issued. No Preferred Shares have been
issued to date.
4.6 FINANCIAL STATEMENTS. The Financial Documents contain the (i) audited
balance sheets of "TTI" as of December 30 , 2004, and December 30, 2005
(including the notes thereto), and the related statements of operations, cash
flows and shareholders' equity (deficit) for each of the years then ended, and
The "TTI" Financial Statements fairly present the financial condition and the
results of operations, changes in stockholders' equity and cash flows of "TTI"
at the respective dates of and for the periods referred to in the "TTI"
Financial Statements, which were prepared in conformity with GAAP, consistently
applied.
FINANCIAL STATEMENT COMPLIANCE. "TTI"s Financial Statements have been prepared
in accordance with Regulation S-X or S-B, as applicable, adopted under the 1934
Act, for the periods specified.
ARTICLE V. CLOSING
5.1 DELIVERIES BY SELLER. On the Closing Date, Seller shall deliver or cause to
be delivered the following to Buyer:
(a) Xxxx of Sale. Seller shall deliver a Xxxx of Sale in form and ------- ----
substance as attached hereto as Schedule K, and any other necessary or
---------- appropriate documents conveying to Buyer good and marketable title to
the Purchased Assets; and
(b) Assignment and Assumption Agreement. Seller shall deliver an
------------------------------------ Assignment and Assumption Agreement in form
and substance as attached hereto as Schedule L, with related consents, if any
are so required. ----------
5.2 DELIVERIES BY BUYER ON THE Closing Date, Buyer shall deliver, or cause to be
delivered to Seller:
(a) Payment of Purchase Price. Seller shall receive from Buyer the ----------
-------------- Purchase Price and the Assignment and Assumption Agreement, duly
executed by Buyer.
(b) Member's Interest. One or more certificates representing the
----------------- Member's Interests described in Section 2.3(c).
(c) Employment Contract. Buyer shall have executed separate employment
-------------------- agreements with [IF APPLICABLE] in form and substance as
set forth in Schedule M ----------
ARTICLE VI. INDEMNIFICATION
6.1 INDEMNIFICATION OF BUYER. Seller hereby agrees to indemnify and hold Buyer,
its shareholders, directors, officers, employees, Affiliates, successors,
assigns and agents of each of them (collectively, the "Indemnified Parties")
harmless from, against and in respect of, and waives any claim for contribution
or indemnity with respect to, any and all claims, losses, damages, liabilities,
expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses
incurred in connection with Losses and/or enforcement of this Agreement, plus
interest from the date incurred through the date of payment at the prime lending
rate as published in the Wall Street Journal from time to time prevailing (in
all, "Indemnified Losses") incurred or to be incurred by any of them (a) to the
extent resulting from or arising out of, or alleged to result from or arise out
of, any breach or violation of the representations, warranties, covenants or
agreements of Seller contained in this Agreement, or in any exhibit, statement,
schedule, certificate, instrument or document delivered pursuant hereto,
including provisions of this Article VII, and (b) to the extent resulting from
or arising out of, or alleged to result from or arise out of, any liability or
obligation of Seller not expressly assumed by Buyer hereunder.
6.2 INDEMNIFICATION OF SELLER. Buyer hereby agrees to indemnify and hold Seller,
its shareholders, directors, officers, employees, Affiliates, successors,
assigns and agents of each of them (collectively, the "Indemnified Parties")
harmless from, against and in respect of, and waives any claim for contribution
or indemnity with respect to, any and all claims, losses, damages, liabilities,
expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses
incurred in connection with Losses and/or enforcement of this Agreement, plus
interest from the date incurred through the date of payment at the prime lending
rate as published in the Wall Street Journal from time to time prevailing (in
all, "Indemnified Losses") incurred or to be incurred by any of them to the
extent resulting from or arising out of, or alleged to result from or arise out
of, any breach or violation of the representations, warranties, covenants or
agreements of Buyer contained in this Agreement, or in any exhibit, statement,
schedule, certificate, instrument or document delivered pursuant hereto.
6.3 PARTICIPATION IN LITIGATION. In the event any suit or other proceeding is
initiated against an Indemnified Party with respect to which Buyer alleges
Seller is or may be obligated to indemnify an Indemnified Party hereunder,
Seller shall be entitled to participate in such suit or proceeding, at its
expense and by counsel of its choosing, provided that (a) such counsel is
reasonably satisfactory to Buyer, and (b) Buyer shall retain primary control
over such suit or proceeding. Such counsel shall be afforded access to all
information pertinent to the suit or proceeding in question. Buyer shall not
settle or otherwise compromise any such suit or proceeding without the prior
consent of Seller, which consent shall not be unreasonably withheld, if the
effect of such settlement or compromise would be to impose liability on Seller,
hereunder.
6.4 CLAIMS PROCEDURE. In the event from time to time Buyer believes that it or
any other Indemnified Party has or will suffer any Losses for which Seller is
obligated to indemnify it hereunder, it shall promptly notify Seller in writing
of the matter, specifying therein the reason why Buyer believes that Seller is
or will be obligated to indemnify, the amount, if liquidated, to be indemnified,
and the basis on which Buyer has calculated such amount; if not yet liquidated,
the notice shall so state; provided, however, that the right of a person to be
indemnified hereunder shall not be adversely affected by a failure to give such
notice unless, and then only to the extent that, an Indemnifying Party is
prejudiced thereby. Seller shall pay any amount to be indemnified hereunder not
more than five days after receipt of notice from Buyer of the liquidated amount
to be indemnified.
ARTICLE VII. DISPUTE RESOLUTION
7.1 SCOPE; INITIATION. Resolution of any and all disputes arising from or in
connection with this Agreement, whether based on contract, tort, statute or
otherwise, including, disputes over arbitrability or disputes in connection with
claims by third persons ("Disputes") shall be exclusively governed by and
settled in accordance with the provisions of this Article VII provided, that the
foregoing shall not preclude equitable or other judicial relief to enforce the
provisions hereof or to preserve the status quo pending resolution of Disputes
hereunder; and provided further that resolution of Disputes with respect to
claims by third persons shall be deferred until any judicial proceedings with
respect thereto are concluded. Either Party to this Agreement may commence
proceedings hereunder by delivery of written notice providing a reasonable
description of the Dispute to the other, including a reference to this Article
VII (the "Dispute Notice").
7.2 ARBITRATION. Arbitration shall be the sole and exclusive remedy for any
dispute, claim, or controversy of any kind or nature arising out of, related to,
or connected with this Agreement and the arbitration shall be governed by and
conducted in accordance with the Arbitration Agreement attached hereto and
incorporated herein by reference as Schedule N. ----------
ARTICLE VLLL 8.3 OFFICERS & BOARD OF DIRECTORS:
As of the date of this agreement, the Officers & Directors shall be:
OFFICERS & DIRECTORS:
CHAIRMAN & CEO & TREASURER - XXX XXXXXX, XXXX XXXXXX SECRETARY, DIRECTOR XXXXXX
XXXXX, DIRCTOR
RESIGNING OFFICERS AND DIRECTORS
XXXXX XXXXXXXX XXXXX XXXXXXXX
ARTICLE VLX. MISCELLANEOUS
9.1 ASSIGNMENT; BINDING AGREEMENT. Neither this Agreement nor any of Buyer's or
Sellers rights or obligations hereunder may be assigned without the other
Party's prior written consent. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and to their respective successors
and permitted assigns Nothing in this Agreement, express or implied, is intended
to confer upon any person other than the Parties and their respective successors
and permitted assigns, any tights, remedies or obligations under or by reason of
this Agreement.
9.2 NON-DISCLOSURE OF INFORMATION. Seller expressly covenants and agrees that it
will not at any time, directly or indirectly, on any basis for any reason, use
or permit third parties within their control or authority or under their
supervision to use any trade secrets, confidential information or proprietary
information of, or relating to, the Business ("Confidential Information"), other
than in furtherance of the Business Confidential Information shall include,
without limitation, data and other information relating to any of such party's
processes, apparatus, products, software, packages, programs, trends in
research, product development techniques or plans, research and development
programs and plans or any works and all secrets, customer lists lists of haulers
and carters, lists of employees, sales representatives and their territories,
mailing lists, details of consultant contracts, pricing policies, operational
methods, marketing plans or strategies, business acquisition plans, new
personnel acquisition plans, designs and design projects and other confidential
business affairs concerning the Buyer and the Buyer's business~ Seller, Buyer or
any Affiliate of Seller or Buyer, whether for its own account or otherwise, and
will not divulge such Confidential Information to any Person other than in
furtherance of this Business. Seller shall not be prohibited from divulging
information deemed to be a trade secret or confidential or proprietary
information of the Business; (i) if the specific item of information becomes
generally available to the public without violation of this Agreement or any
other confidentiality agreement among or between Buyer and Seller, or (ii) if
such disclosure is compelled by law, in which event Seller agrees to give Buyer
prior written notice of any disclosure to be made pursuant to this subsection
(ii), and Seller, at Buyer's expense, shall cooperate fully with Buyer to obtain
protective orders, confidential treatment or other such protective action as may
be available to preserve the confidentiality of the information required to be
disclosed.
9.3 REMEDIES. Nothing contained herein is intended to or shall be construed to
limit the remedies which either party may have against the other in the event of
a breach of or default under this Agreement, it being intended that any remedies
shall be cumulative and not exclusive.
9.4 ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement, including the
Schedules attached hereto and the documents delivered pursuant hereto,
constitutes the entire agreement between the parties. No changes of,
modifications of, or additions to this Agreement shall be valid unless the same
shall be in writing and signed by all parties hereto. No action taken pursuant
to this Agreement, including any investigation by or on behalf of any Party,
shall be deemed to constitute a waiver by the Party taking the action of
compliance by the other Party with any representation, warranty, covenant or
agreement contained herein or in any document delivered pursuant hereto. The
waiver by any party hereto of any condition or of a breach of another provision
hereof shall not operate or be construed as a waiver of any other condition or
subsequent breach. The waiver by any party of any of the conditions precedent to
its obligations under this Agreement shall not preclude it for seeking redress
for breach of this Agreement other than with respect to the condition so waived.
9.5 SEVERABILITY. If any provision of this Agreement shall be determined to be
contrary to law and unenforceable by any court of law, the remaining provisions
shall be severable and enforceable in accordance with their terms,
9.6 COUNTERPARTS. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
9.7 HEADINGS INTERPRETATION. The table of contents and article and section
headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of the Agreement. Both
parties have participated substantially in the negotiation and drafting of this
Agreement and each party hereby disclaims any defense or assertion in any
litigation or arbitration that any ambiguity herein should be construed against
the draftsman.
9.8 GOVERNING LAW. This Agreement shall be construed and interpreted according
to the Laws of the State of New York, without regard to its principles of
conflicts of laws. Any proceeding brought by the parties to this Agreement shall
be brought in the Courts of the State of New York.
9.9 PAYMENT OF TAXES, FEES AND EXPENSES. Each party hereto shall pay all fees
and expenses of such party's respective counsel, accountants and other experts
and all other expenses incurred by such party incident to the negotiation,
preparation and execution of this Agreement and the consummation of the
transaction contemplated hereby, including any finder's or brokerage fees.
Seller shall be solely liable for any and all taxes imposed on Seller as a
result of the transactions or otherwise arising from this Agreement.
9.10 NOTICES. Any notice, demand or communication required, permitted or desired
to be given hereunder shall be in writing and shall be deemed effectively given
when personally delivered, delivered by facsimile or other electronic means
(including telecopy and telex) or overnight courier, or five (5) days after
being deposited in the United States mail, postage prepaid, certified or
registered, return receipt required. All notices shall be addressed as follows:
If to Buyer: If to Seller:
Tribeka Tek, Inc. NYN International LLC. 1510 51 St. 0000 Xxxxx Xxxx., Xxxxxxxx,
XX 00000 Xxxxxxx, Xx. 00000.
Any such notice shall be effective upon: (i) receipt if delivered by facsimile
transmission or overnight or other courier service, or (ii) if mailed, five (5)
days after deposit with the U.S. Postal Service or the date of delivery as shown
on the return receipt therefore. Either Party may change the address to which
notices are to be addressed by giving the other Party notice in the manner
herein set forth.
9.11 FURTHER ACTS. Buyer and Seller shall, without further consideration,
execute and deliver such further instruments and documents and do such other
acts and things as the other may reasonably request in order to confirm the
transactions contemplated by this Agreement. Without limiting the foregoing,
Seller shall deliver to Buyer any and all checks, drafts or other forms of
payment received in respect of any of the Accounts Receivable acquired by Buyer
pursuant to the terms of this Agreement and any of the Accounts Receivable
subsequent to the Closing Date derived from the operations of the Business after
the Effective Time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
day and year first above written.
BUYER:
TRIBEKA TEK, INC.
By-/s/ Xxxxx Xxxxxxxx, President
SELLER: NYN International LLC.
By-_ /s/ Xxx Xxxxxx, President
TABLE OF SCHEDULES
SCHEDULE A Purchased Assets, Purchased Assets - Required Consents, Personal
Property Owned, Excluded Assets, Insurance Policies.
1. Assignment of Provisional Patent Docket # NYN002 2. Assignment of Reciprocal
Enhanced Services International Agreement with Novolink Management LLC. 3.
Assignment of Agreement with Kanaga Network Solutions 4. Assignment of Agreement
with Platin
SCHEDULE B Assumed Liabilities, Assumed Liabilities - Required Consents,
Undisclosed Liabilities, Taxes Owing, Outstanding Liens, Indebtedness to and
from Officers, Directors and Others
NONE
SCHEDULE C Intentionally Blank
SCHEDULE D Intentionally Blank
SCHEDULE E Licenses and Permits, Required Consents
SCHEDULE F Contracts, Contracts - Required Consents, Employment Agreements 1.
Assignment of Reciprocal Enhanced Services International Agreement with Novolink
Management LLC. 2. Assignment of Agreement with Kanaga Network Solutions 3
Assignment of Agreement with Platin
SCHEDULE G Rental Due, Leases Subject to Consent for Assignment t to Buyer
SCHEDULE H Intellectual Property
1. Assignment of Provisional Patent Docket # NYN002
SCHEDULE I Pending Litigation and Arbitration
SCHEDULE J Employee Benefit Plans NONE
SCHEDULE K Xxxx of Sale
SCHEDULE L Assignment and Assumption Agreement
SCHEDULE M Employment Agreements NONE
SCHEDULE N Arbitration Agreement
XXXX OF SALE & ASSIGNMENT AND ASSUMPTION AGREEMENT
This Xxxx of Sale and Assignment and Assumption Agreement (this "Assignment and
Assumption") is made as of January 18, 2006 between NYN International LLC
("Seller/ Transferor"), and the Buyer, Tribeka Tek, Inc.
This Assignment and Assumption Agreement is entered into pursuant to, and is
subject to, the Asset Purchase Agreement dated as of January 18, 2006 by and
between Seller and Purchaser (the "Agreement").
This Assignment and Assumption Agreement shall have the meanings given to such
terms in the Asset Purchase Agreement. In consideration of the foregoing
premises, all of the Assets and described in Schedule A-N of the Asset Purchase
Agreement and sufficiency of which are hereby acknowledged, Seller does hereby
sell, Sell , assign and convey unto Buyer, its successors and assigns, all of
the Assets, and Buyer does not assume any liabilities. No provisions set forth
in this Assignment and Assumption shall be deemed to enlarge, alter or amend the
terms and provisions of the Asset Purchase Agreement. In the event of any
conflict between the provisions of this Assignment and Assumption and the
provisions of the Asset Purchase Agreement, the Asset Purchase Agreement shall
control.
This Assignment and Assumption is made solely for the benefit of Seller and
Purchaser and no third party shall have any right to enforce its terms or to
rely on it. This instrument and the rights of the parties under it shall be
governed by and construed in accordance with laws of the State of New York
without regard to its conflicts of laws rules.
This Assignment and Assumption may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Assignment and Assumption
effective as of the date first written above.
SIGNATURE PAGES
SELLER
NYN INTERNATIONAL LLC
XXX XXXXXX, /s/ PRESIDENT
BUYER
TRIBEKA TEK, INC.
XXXXX SCHWARTZ_/s/PRESIDENT
ARBITRATION AGREEMENT
THIS AGREEMENT ("Arbitration Agreement") between the parties that are signatory
to an Asset Purchase Agreement , a copy of which is/are attached hereto as
Exhibit A (each individually referred to herein as a "party" or collectively
referred to herein as the "parties").
WITNESSETH
A. WHEREAS, the parties have entered into certain written agreements in
connection with a transaction where Tribeka Tek, Inc. is purchasing all of the
assets and intellectual properties of VGTel from NYN International LLC.
B. WHEREAS, the parties wish to provide arbitration as the sole remedy for
resolution of any dispute, claim or controversy of any kind or nature arising
out of or relating to the breach, termination, or validity of such written
agreements, except as specified herein:
NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants
contained herein, and other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Exclusive Remedy.
Arbitration shall be the sole and exclusive remedy for any dispute, claim or
controversy of any kind or nature (a "Claim") arising out of or relating to the
breach, termination or validity of any the agreements (the "Agreements") entered
into by the parties hereto and identified in the attached Exhibit A
2. Claims not Subject to Arbitration.
This Agreement does not apply to (a) any legal action by the parties seeking
injunctive relief for breach or enforcement of any provision in any of the
Agreements which would cause the complaining party or parties irreparable harm
and for which there is no adequate remedy at law and (b) any agreement,
provision or undertaking that provides it is not subject to arbitration.
3. Procedure.
Any Claim submitted to arbitration shall be decided by a single neutral
arbitrator (the "Arbitrator"). The parties to the arbitration shall mutually
select the Arbitrator not later than forty-five (45) days after service of the
demand for arbitration. If the parties for any reason do not mutually select the
Arbitrator within the forty-five (45) day period, then any party may apply to a
court of competent jurisdiction as noted in paragraph 4 below, to appoint a
retired judge as the Arbitrator. The parties agree that arbitration shall be
conducted in accordance with the commercial arbitration rules then in effect of
the American Arbitration Association.
The Arbitrator shall apply the substantive federal, state, or local laws of the
County and City of New York, Borough of Manhattan and of the United States
District Court for the Southern District of New York, applicable to any Claim
submitted to arbitration. In ruling on any such Claim, the Arbitrator shall have
the authority to award only such remedies or forms of relief as are provided for
under the substantive law governing such Claim, but in any event, the Arbitrator
shall not award any punitive, exemplary or consequential damages. The award
entered by the Arbitrator shall be final and binding on all parties
participating in the arbitration.
4. Consent to Jurisdiction
The parties consent to the jurisdiction of the Supreme Court of the State,
County and city of New York, Borough of Manhattan and of the United States
District Court of the Southern District of the Sate of New York for the
arbitration proceedings and to enforce the judgment of the award in such
arbitration proceedings, but not otherwise. The parties may bring an action in
any such court to compel arbitration in accordance with the terms of this
Arbitration Agreement.
5. Costs
Any fees and costs incurred in the arbitration will be shared equally by the
parties participating in the arbitration, except that the Arbitrator may
reallocate such fees among such parties if the Arbitrator determines that an
equal allocation would impose an unreasonable financial burden on any one or
more parties.
The parties shall be responsible for their own attorneys' fees and costs, except
that the Arbitrator shall have the authority to award attorneys' fees and costs
to the prevailing party iii accordance with the applicable law governing the
dispute.
6. Interpretation.
The Arbitrator, and not any federal or state court, shall have the exclusive
authority to resolve any issue relating to the interpretation, formation or
enforceability of this Agreement, or any issue relating to whether a Claim is
subject to arbitration under this Arbitration Agreement
IN WITNESS WHEREOF, this Agreement has been entered into by the parties as of
January18, 2006.
BUYER: SELLER:
Tribeka Tek, Inc. NYN International LLC
_ By /s/ Xxxxx Xxxxxxxx, President By /s/ By Xxx Xxxxxx, President
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is made effective as of this18th
day of January 2006 by and among TRIBEKA TEK, INC. (""TTI" or "Buyer"), a
corporation with the principal office located at 0000 00 Xx., Xxxxxxxx, XX
00000, and NYN International LLC. ("NYN" or "Seller") Texas Corporation located
at 0000 Xxxxx Xxxx., Xxxxxxx, Xx. 00000.
RECITALS
A. Buyer desires to purchase from Seller the Purchased Assets on the following
terms and conditions; and
B. Seller desires to sell to Buyer the Purchased Assets on the following terms
and conditions.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, representations, warranties, conditions, and agreements hereinafter
expressed, the Parties agree as follows:
ARTICLE I. DEFINITIONS
In addition to those capitalized terms defined throughout this Agreement, the
following terms shall have the meanings ascribed to them here below:
1.1 "CLOSING" means the consummation of the transactions contemplated by this
Agreement.
1.2 "CLOSING DATE" MEANS THE date hereof, or such later mutually agreeable date
within ten (10) days of the date hereof as the Parties may designate in writing.
1.3 "EFFECTIVE TIME" means the effective time of the Closing, which shall be as
of 11:59 p.m. on the day preceding the Closing Date.
1.4 "PERSON" means any natural person, any corporation, partnership, limited
liability company, limited liability partnership, joint venture, association,
company, or other legal entity, and any Government.
ARTICLE II.
PURCHASE AND SALE OF PURCHASED ASSETS
2.1 ASSETS TO BE PURCHASED.
(a) Subject to the terms and conditions hereof on the Closing Date, and as of
the Effective Time, Seller shall sell to Buyer, free and clear of all liens,
claims, restrictions or encumbrances of any kind, unless otherwise provided
herein, all assets and property and associated rights and interests, real,
personal, and mixed, tangible and intangible, of whatever kind, owned, used or
held for use by Seller (the "Purchased Assets") in connection with the business
and operations of Seller (the "Business"). Without limiting the generality of
the foregoing, the Purchased Assets include the following items:
(i) All assets reflected and/or described on the asset list attached as Schedule
-------- A;
(ii) All accounts receivable of Seller in connection with the Business;
(iii) All contracts of Seller with customers, all contracts for the leasing of
equipment by Seller and all of Seller's software licenses or other intellectual
property licenses;
(iv) All permits, approvals, licenses and certifications issued to Seller by any
government authority or by a private testing or certifying authority in
connection with the Business, to the extent assignable under the terms thereof
and applicable law;
(v) All patents, trademarks, service marks, trade names, corporate names,
copyrights, and copyrighted works; registrations thereof and applications
therefore; trade secrets, software (whether in source code or object code),
firmware, mask works, programs, inventions, discoveries, proprietary processes,
and items of proprietary know-how, information, data or intellectual property,
proprietary prospect lists, customer lists, projections, analyses, and market
studies; and licenses, sublicenses, assignments, and agreements in respect of
any of the foregoing (the "Intellectual Property"), documentation thereof and
the goodwill associated therewith and the right and power to assert, defend and
recover title thereto in the same manner and to the same extent as Seller could
or could cause to he done if the transactions contemplated hereby did not occur,
and the right to recover for past damages on account of the infringement,
misuse, or theft thereof. (vi) All records, including business, computer,
engineering, and other records, and all associated documents, discs, tapes, and
other storage or recordkeeping media of Seller prepared or held in connection
with the Business, including but not limited to all sales data, customer lists,
accounts, bids, contracts, supplier records, and other data and information of
the Business, excluding corporate minute books of Seller;
(vii) All rights and claims against others under contracts; and
(viii) All other claims against others, rights, and choses in action, liquidated
or unliquidated, of Seller arising from the Business, including those arising
under insurance policies.
2.2 CONSIDERATION. The consideration to be paid by Buyer to Seller shall be as
follows:
Buyer has effected a forward split of 826.67 shares for every one share of
Tribeka Tek, Inc. outstanding, bringing the outstanding shares from 1500 to
1,240,000.
Upon Closing Buyer will deliver 2,760,000 restricted shares to shareholders of
NYN International LLC., to be designated by Seller and authorized the Name
change from Tribeka Tek, Inc. to VGTel, Inc.
Buyer appointed Xxx Xxxxxx as CEO, Chairman and Treasurer, and Xxxxxx Xxxxx as
VP Marketing & Director and Xxxx Xxxxxx as Secretary. Xxxxx Xxxxxxxx and Xxxxx
Xxxxxxxx resigned as officers and directors.
Buyer undertakes to conduct best efforts to prepare all of the necessary filings
and due diligence for filing an SB-2 with the SEC. Once effective, buyer shall
arrange with market maker for filing an A-211 and shall be responsible for
coordinating all of the steps necessary to submit the appropriate information to
the NASD.
2.3 CLOSING. The Closing shall take place at 12:00 p.m. on the Closing Date via
email and fax communication.
ARTICLE III. REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby make the following representations and warranties, each of which
is true and correct on the date hereof and each of which shall be true and
correct on the Closing Date and shall survive the Closing Date and the
transactions contemplated hereby.
3.1 CORPORATE EXISTENCE AND POWER OF SELLER. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Texas. Except as set forth on the attached Schedules, Seller has the
corporate power and authority to own and use its assets and to transact the
business in which it is engaged, holds all franchises, licenses and permits
necessary and required therefore, is duly licensed or qualified to do business
as a foreign corporation and is in good standing in each jurisdiction where such
license or qualification is required. Seller has the corporate power to enter
into this Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby.
3.2 APPROVAL AND ENFORCEABILITY OF AGREEMENT. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized, approved and ratified by all necessary action on the part of
Seller. Certified copies of all required resolutions, authorizations, consents,
approvals and/or ratifications have been provided to Buyer and no such
resolution, authorization, consent or approval has been altered, amended,
rescinded, repealed or revoked. Seller has full authority to enter into and
deliver this Agreement, to perform its obligations hereunder, and to consummate
the transactions contemplated hereby. Assuming the due execution and delivery
hereof by Buyer, this Agreement is the legal, valid and binding obligation of
Seller, enforceable against Seller according to its terms.
3.3 UNDISCLOSED LIABILITIES. Seller does not have any liabilities whatsoever,
known or unknown, asserted or unasserted, liquidated or unliquidated, accrued,
absolute, contingent, or otherwise, and there is no basis for any claim against
Seller for any such liability except (a) to the extent set forth in the
Financial Statements, or (b) to the extent set forth on Schedule B. ----------
3.4 TAXES. Except as set forth on Schedule B, all tax and information ----------
returns required to be filed by Seller on or prior to the Closing Date with
respect to taxes imposed on or assessed to Seller have been or will be timely
filed. All amounts shown on each of such returns have been paid or will be paid
when due. Any taxes which are to be assumed by Buyer in respect of the Purchased
Assets which at the Closing Date are not yet due and owing will be adequately
reflected on Schedule B. There are no grounds for the assertion or assessment of
-------- - any taxes against Seller, the Purchased Assets or the Business other
than those reflected or reserved against on the Financial Statements or Schedule
B hereto. ---------- Neither the Purchased Assets nor the Business are
encumbered by any liens arising out of any unpaid taxes and there are no grounds
for the assertion or assessment of any liens against the Purchased Assets or the
Business in respect of any taxes (other than liens for taxes if payment thereof
is not yet required, and which are set forth on Schedule B hereto). The
transactions contemplated by ---------- this Agreement will not give rise to (i)
the creation of any liens against the Purchased Assets or the Business in
respect of any taxes or (ii) the assertion of any additional taxes against the
Purchased Assets or the Business. There is no action or proceeding or unresolved
claim for assessment or collection, pending or threatened, by, or present or
expected dispute with, any government authority for assessment or collection
from Seller of any taxes of any nature affecting the Purchased Assets or the
Business There is no extension or waiver of the period for assertion of any
taxes against Seller affecting the Purchased Assets or the Business. None of the
Purchased Assets are subject to a tax indemnification agreement.
3.5 PERSONAL PROPERTY - OWNED. Except as set forth on Schedule A ----------
hereto, Seller has good and marketable title to all personal property included
in the Purchased Assets, including in each case all personal property reflected
in the Financial Statements or acquired after the date thereof (except any
personal property subsequently sold in the ordinary course of the Business),
free and clear of all liens, claims and encumbrances and there exists no
restriction on the use or transfer of such property.
3.6 REAL AND PERSONAL PROPERTY - LEASED TO SELLER. Set forth on Schedule G
hereto is a copy of each lease under which Seller is the lessee of --- any real
property in connection with the Business, and on Schedule G hereto is a
---------- description of each lease under which Seller is the lessee of any
personal property in connection with the Business. Seller has delivered to Buyer
a true, correct and complete copy of each lease identified on Schedule G. The
premises ---------- or property described in said leases are presently occupied
or used by Seller as lessee under the terms of such leases. Except as set forth
on Schedule U, all ---------- rentals due under such leases have been paid and
there exists no default under the terms of any such leases and no event has
occurred which, upon passage of time or the giving of notice, or both, would
result in any event of default or prevent Seller from exercising and obtaining
the benefits of any rights or options contained therein. Seller has all right,
title and interest of the lessee under the terms of said leases, free of all
liens and all such leases are valid and in fill force and effect. Except as set
forth on Schedule 0, no ---------- consent is necessary for the assignment to
Buyer of such leases under which Seller is lessee, Upon the Closing, Buyer will
have all right, title and interest of the lessee under the terms of such leases,
free of all liens. There is no default or basis for acceleration or termination
under, nor has any event occurred nor does any condition exist which, with the
passage of time or the giving of notice, or both, would constitute a default or
basis for acceleration under any underlying lease, agreement, mortgage or deed
of trust which default or basis for acceleration would adversely affect any
lease described on Schedules U or the property or use of the property covered by
such lease. --- Subject to any consent required of a lessor as set forth on
Schedule U, there ---------- will be no default or basis for acceleration under
any such underlying lease, agreement, mortgage or deed of trust as a result of
the transactions provided for in this Agreement.
3.7 INTELLECTUAL PROPERTY.
(a) Schedule H contains a true, complete and accurate list of all ----------
Seller's Intellectual Property.
3.8 NECESSARY PROPERTY AND TRANSFER OF PURCHASED ASSETS. The Purchased Assets
constitute all of Seller's property and property rights now used, useful or
necessary for the conduct of the Business in the manner and to the extent
presently conducted and planned by Seller. No such assets or property are in the
possession of others and Seller holds no property on consignment. No consent is
necessary to, and there exists no restriction on, the transfer of any of the
Purchased Assets. There exists no condition, restriction or reservation
affecting the title to or utility of the Purchased Assets or Assumed Liabilities
which would prevent Buyer from occupying or utilizing the Purchased Assets or
enforcing the rights under the Assumed Liabilities, or any part thereof to the
same full extent that Seller might continue to do so if the sale and transfer
contemplated hereby did not take place.
Upon the Closing, good and marketable title to the Purchased Assets and the
rights under the Assumed Liabilities shall be vested in Buyer free and clear of
all liens, claims and encumbrances.
3.9 USE AND CONDITION OF PROPERTY. Seller shall take all action necessary to
provide to Buyer the benefit of all manufacturer's warranties and maintenance
contracts covering equipment included in the Purchased Assets, to the extent
that such warranties exist and are in the possession of the Seller. Seller has
taken no action nor has Seller failed to take any action that might nullify or
release any such manufacturer from any liabilities under such warranties or
maintenance contracts.
EXCEPT AS PROVIDED HEREIN, NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IS
MADE WITH RESPECT TO THE CONDITION OR FITNESS FOR A PURPOSE OR PARTICULAR USE OF
THE ASSETS INCLUDED IN THE PURCHASED ASSETS, IT BEING UNDERSTOOD THAT SUCH
ASSETS ARE ACQUIRED OR PURCHASED BY BUYER IN AN "AS IS" CONDITION.
3.10 LICENSES AND PERMITS. Set forth on Schedule Ehereto is a ----------
description of each license or permit held or pending for the Seller, which
licenses or permits are required for the conduct of the Business together with
the name of the government agency or entity that issues such license or permit.
Such licenses and permits are valid and in full force and effect or are pending,
as indicated on Schedule E. Except as noted on Schedule E, such licenses and
---------- ---------- permits are freely transferable by Seller, and upon
Closing, Buyer will have the right, title and interest of the holder thereof.
3.11 CONTRACTS-DISCLOSURE. Set forth on Schedule Fis a list of all ----------
contracts of Seller. Each contract is a valid and binding obligation of the
parties thereto, enforceable in accordance with its terms, and in full force and
effect. No party to any contract is in breach or violation thereof or default
thereunder. No event has occurred which, through the passage of time or the
giving of notice, or both, would constitute, and neither the execution of this
Agreement nor the Closing do or will constitute or result in, a breach or
violation of or default under any contract, or would cause the acceleration of
any obligation of any party thereto or the creation of a lien upon any Purchased
Asset. Each such contract will be duly assigned to Buyer on the Closing Date and
upon such assignment, Buyer will acquire all right, title and interest of Seller
in and to such contract and will be substituted for Seller under the terms of
such contract. Except as set forth on Schedule F, no consent is required for
---------- such assignment.
3.12 NO BREACH OF LAW OR GOVERNING DOCUMENTS. Except as set forth on Schedule E
Seller has complied with and is not in default under or in breach or --------
violation of any applicable law' of any government body, or the provisions of
any franchise or license, or in default under or in breach or violation of any
provision of its articles or certificate of incorporation or its bylaws. Neither
the execution of this Agreement nor the Closing will constitute or result in any
such default, breach or violation. No government permits or consents are
necessary to effect the transactions contemplated hereby.
3.13 LITIGATION AND ARBITRATION. Except as set forth on Schedule I ----------
hereto, there is no suit, claim, action or proceeding now pending or, to the
best knowledge of Seller, its officers and directors, threatened before any
court, grand jury, administrative or regulatory body, government agency,
arbitration or mediation panel or similar body, nor are there any grounds
therefore, to which Seller, officers or directors is a party or which may result
in any judgment, order, decree, liability, award or other determination which
will, or could, individually or in the aggregate, result in a Material Adverse
Change. No such judgment, order, decree or award has been entered against Seller
nor has any such liability been incurred which has, or could have, such effect.
There is no claim, action or proceeding now pending or threatened before any
court, grand jury, administrative or regulatory body, government agency,
arbitration or mediation panel or similar body which will, or could, prevent or
hamper the consummation of the transactions contemplated by this Agreement,
Seller, its officers and directors are not now nor have been threatened or
subject to, and there are no grounds for, any suit, claim, litigation,
proceeding (administrative, judicial, or in arbitration, mediation or
alternative dispute resolution), government or grand jury investigation, or
other action or order, writ, injunction, or decree of any court or other
Government relating to personal injury, death, or property or economic damage
arising from products of the Seller.
3.14 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS AND OTHERS. Except as set
forth on Schedule B, (a) Seller is not indebted to any shareholder, ----------
director, officer, employee or agent of Seller except for amounts due as normal
salaries, wages and bonuses and in reimbursement of ordinary expenses on a
current basis and (b) no shareholder, director, officer, employee or agent of
Seller is indebted to Seller except for advancements for ordinary business
expenses in a normal amount.
3.15 LABOR AGREEMENTS AND EMPLOYMENT AGREEMENTS. Except as set forth on Schedule
F, Seller is not a party to (a) any union collective bargaining, works
---------- council, or similar agreement or arrangement, or (b) any written or
oral employment agreement. True, correct and complete copies of all documents
creating or evidencing any agreement or arrangement listed on Schedule F have
---------- been delivered to Buyer. Seller is in compliance in all material
respects with all laws respecting employment conditions and practices, has
withheld and paid all amounts required by applicable law to be withheld from the
wages and salaries of its employees, and is not liable for any arrears of wages
or any taxes (other than wages and taxes that have not become due or payable) or
penalties for failure to comply with any of the foregoing,
3.16 EMPLOYEE BENEFIT PLANS. Except as set forth on Schedule I, Seller has
---------- no pension, thrift, savings, profit sharing, retirement, incentive
bonus or other bonus, medical, dental, life, accident insurance, benefit,
employee welfare, disability, group insurance, stock appreciation, stock option,
executive or deferred compensation, hospitalization or other similar fringe or
employee benefit plans, programs or arrangements. Each such employee plan or
agreement has been furnished to Buyer. Seller is in compliance with all
provisions of the Employee Retirement Security Act of 1934, as amended
("ERJSA"). Buyer is not required under ERJSA or the Internal Revenue Code of
1986, as amended (the "Code") to establish, maintain or continue any employee
plan agreement maintained by Seller. The consummation of the transactions
contemplated by this Agreement will not (A) entitle any current or former
employee of Seller to severance pay, unemployment compensation or any other
payment, (B) accelerate the time of payment or vesting, or increase the amount
of compensation due to any such employee or former employee, (C) result in any
prohibited transaction described in Section 406 of ERISA or Section 4975 of the
Code for which an exemption is not available, or (D) give rise to the payment of
any amount that would not be deductible pursuant to the terms of Section 280G of
the Code.
3.17 INSURANCE POLICIES. Set forth on Schedule A hereto is a list of ----------
all insurance policies and bonds in force covering or relating to the Purchased
Assets or the Business. Policies thereon described evidence insurance in such
amounts and against such risks and losses as are generally maintained with
respect to comparable businesses and properties.
3.18 BROKER'S FEES. Seller has not retained any broker, finder or agent or
agreed to pay any broker's fees, finder's fees or commissions with respect to
the transactions contemplated by this Agreement.
3.19 BOOKS AND RECORDS. The books of account, stock record books and minute
books and other corporate records of Seller are in all material respects
complete and correct, have been maintained in accordance with good business
practices and the matters contained therein are accurately reflected on the
Financial Statements. The minute books and stock books of Seller have been made
available to Buyer and are correct and complete to the date hereof
3.20 DISCLOSURE. No representation or warranty of Seller herein and no
statement, information or certificate furnished or to be furnished by or on
behalf of Seller pursuant hereto or in connection with the transactions
contemplated hereby contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary in order to make
the statements contained herein or therein not misleading.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties each of which is
true and correct on the date hereof and each of which shall be true and correct
on the Closing Date and shall survive the Closing Date and the sale contemplated
hereby,
4.1 CORPORATE EXISTENCE OF BUYER. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York. Buyer has
the corporate power and authority to own and use its properties and to transact
the business in which it is engaged. As of the date hereof, "TTI" is qualified
to do business in New York. "TTI" does not own any shares of capital stock or
other interest in any corporation, partnership, association or other entity.
4.2 APPROVAL OF AGREEMENT. THE EXECUTION AND delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized,
approved and ratified by all necessary action on the part of Buyer. Copies of
all required resolutions, authorizations, consents, approvals and/or
ratifications have been provided to Seller and no such resolution,
authorization, consent or approval has been altered, amended, rescinded,
repealed or revoked. Buyer has full authority to enter into and deliver this
Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. Assuming the due execution and delivery hereof
by Seller, this Agreement is the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms,
4.3 NO BREACH OF ARTICLES OR INDENTURES. The execution of this Agreement and the
consummation of the transactions contemplated hereby has not and will not
constitute or result in the breach of any of the provisions of, or constitute a
default under, the operating agreement of Buyer, or any material indenture,
evidence of indebtedness or other commitment to which Buyer is a party or by
which it is bound, which breach of default would have a material adverse effect
on the consummation of the transactions contemplated by this Agreement.
4.4 BROKER'S FEES. Buyer has not retained any broker, finder or agent or agreed
to pay any broker's fees, finder's fees or commissions with respect to the
transactions contemplated by this Agreement.
4.5 CAPITALIZATION. The number of authorized, issued and outstanding shares of
Company Stock as of the date hereof is 200,000,000. The number of Shares issued
and outstanding following the issuance and cancellations outlined in Paragraph
2.3 shall be:
An aggregate of 4,000,000 Common Shares issued. No Preferred Shares have been
issued to date.
4.6 FINANCIAL STATEMENTS. The Financial Documents contain the (i) audited
balance sheets of "TTI" as of December 30 , 2004, and December 30, 2005
(including the notes thereto), and the related statements of operations, cash
flows and shareholders' equity (deficit) for each of the years then ended, and
The "TTI" Financial Statements fairly present the financial condition and the
results of operations, changes in stockholders' equity and cash flows of "TTI"
at the respective dates of and for the periods referred to in the "TTI"
Financial Statements, which were prepared in conformity with GAAP, consistently
applied.
FINANCIAL STATEMENT COMPLIANCE. "TTI"s Financial Statements have been prepared
in accordance with Regulation S-X or S-B, as applicable, adopted under the 1934
Act, for the periods specified.
ARTICLE V. CLOSING
5.1 DELIVERIES BY SELLER. On the Closing Date, Seller shall deliver or cause to
be delivered the following to Buyer:
(a) Xxxx of Sale. Seller shall deliver a Xxxx of Sale in form and ------- ----
substance as attached hereto as Schedule K, and any other necessary or
---------- appropriate documents conveying to Buyer good and marketable title to
the Purchased Assets; and
(b) Assignment and Assumption Agreement. Seller shall deliver an
------------------------------------ Assignment and Assumption Agreement in form
and substance as attached hereto as Schedule L, with related consents, if any
are so required. ----------
5.2 DELIVERIES BY BUYER ON THE Closing Date, Buyer shall deliver, or cause to be
delivered to Seller:
(a) Payment of Purchase Price. Seller shall receive from Buyer the ----------
-------------- Purchase Price and the Assignment and Assumption Agreement, duly
executed by Buyer.
(b) Member's Interest. One or more certificates representing the
----------------- Member's Interests described in Section 2.3(c).
(c) Employment Contract. Buyer shall have executed separate employment
-------------------- agreements with [IF APPLICABLE] in form and substance as
set forth in Schedule M ----------
ARTICLE VI. INDEMNIFICATION
6.1 INDEMNIFICATION OF BUYER. Seller hereby agrees to indemnify and hold Buyer,
its shareholders, directors, officers, employees, Affiliates, successors,
assigns and agents of each of them (collectively, the "Indemnified Parties")
harmless from, against and in respect of, and waives any claim for contribution
or indemnity with respect to, any and all claims, losses, damages, liabilities,
expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses
incurred in connection with Losses and/or enforcement of this Agreement, plus
interest from the date incurred through the date of payment at the prime lending
rate as published in the Wall Street Journal from time to time prevailing (in
all, "Indemnified Losses") incurred or to be incurred by any of them (a) to the
extent resulting from or arising out of, or alleged to result from or arise out
of, any breach or violation of the representations, warranties, covenants or
agreements of Seller contained in this Agreement, or in any exhibit, statement,
schedule, certificate, instrument or document delivered pursuant hereto,
including provisions of this Article VII, and (b) to the extent resulting from
or arising out of, or alleged to result from or arise out of, any liability or
obligation of Seller not expressly assumed by Buyer hereunder.
6.2 INDEMNIFICATION OF SELLER. Buyer hereby agrees to indemnify and hold Seller,
its shareholders, directors, officers, employees, Affiliates, successors,
assigns and agents of each of them (collectively, the "Indemnified Parties")
harmless from, against and in respect of, and waives any claim for contribution
or indemnity with respect to, any and all claims, losses, damages, liabilities,
expenses or costs ("Losses"), plus reasonable attorneys' fees and expenses
incurred in connection with Losses and/or enforcement of this Agreement, plus
interest from the date incurred through the date of payment at the prime lending
rate as published in the Wall Street Journal from time to time prevailing (in
all, "Indemnified Losses") incurred or to be incurred by any of them to the
extent resulting from or arising out of, or alleged to result from or arise out
of, any breach or violation of the representations, warranties, covenants or
agreements of Buyer contained in this Agreement, or in any exhibit, statement,
schedule, certificate, instrument or document delivered pursuant hereto.
6.3 PARTICIPATION IN LITIGATION. In the event any suit or other proceeding is
initiated against an Indemnified Party with respect to which Buyer alleges
Seller is or may be obligated to indemnify an Indemnified Party hereunder,
Seller shall be entitled to participate in such suit or proceeding, at its
expense and by counsel of its choosing, provided that (a) such counsel is
reasonably satisfactory to Buyer, and (b) Buyer shall retain primary control
over such suit or proceeding. Such counsel shall be afforded access to all
information pertinent to the suit or proceeding in question. Buyer shall not
settle or otherwise compromise any such suit or proceeding without the prior
consent of Seller, which consent shall not be unreasonably withheld, if the
effect of such settlement or compromise would be to impose liability on Seller,
hereunder.
6.4 CLAIMS PROCEDURE. In the event from time to time Buyer believes that it or
any other Indemnified Party has or will suffer any Losses for which Seller is
obligated to indemnify it hereunder, it shall promptly notify Seller in writing
of the matter, specifying therein the reason why Buyer believes that Seller is
or will be obligated to indemnify, the amount, if liquidated, to be indemnified,
and the basis on which Buyer has calculated such amount; if not yet liquidated,
the notice shall so state; provided, however, that the right of a person to be
indemnified hereunder shall not be adversely affected by a failure to give such
notice unless, and then only to the extent that, an Indemnifying Party is
prejudiced thereby. Seller shall pay any amount to be indemnified hereunder not
more than five days after receipt of notice from Buyer of the liquidated amount
to be indemnified.
ARTICLE VII. DISPUTE RESOLUTION
7.1 SCOPE; INITIATION. Resolution of any and all disputes arising from or in
connection with this Agreement, whether based on contract, tort, statute or
otherwise, including, disputes over arbitrability or disputes in connection with
claims by third persons ("Disputes") shall be exclusively governed by and
settled in accordance with the provisions of this Article VII provided, that the
foregoing shall not preclude equitable or other judicial relief to enforce the
provisions hereof or to preserve the status quo pending resolution of Disputes
hereunder; and provided further that resolution of Disputes with respect to
claims by third persons shall be deferred until any judicial proceedings with
respect thereto are concluded. Either Party to this Agreement may commence
proceedings hereunder by delivery of written notice providing a reasonable
description of the Dispute to the other, including a reference to this Article
VII (the "Dispute Notice").
7.2 ARBITRATION. Arbitration shall be the sole and exclusive remedy for any
dispute, claim, or controversy of any kind or nature arising out of, related to,
or connected with this Agreement and the arbitration shall be governed by and
conducted in accordance with the Arbitration Agreement attached hereto and
incorporated herein by reference as Schedule N. ----------
ARTICLE VLLL 8.3 OFFICERS & BOARD OF DIRECTORS:
As of the date of this agreement, the Officers & Directors shall be:
OFFICERS & DIRECTORS:
CHAIRMAN & CEO & TREASURER - XXX XXXXXX, XXXX XXXXXX SECRETARY, DIRECTOR XXXXXX
XXXXX, DIRCTOR
RESIGNING OFFICERS AND DIRECTORS
XXXXX XXXXXXXX XXXXX XXXXXXXX
ARTICLE VLX. MISCELLANEOUS
9.1 ASSIGNMENT; BINDING AGREEMENT. Neither this Agreement nor any of Buyer's or
Sellers rights or obligations hereunder may be assigned without the other
Party's prior written consent. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and to their respective successors
and permitted assigns Nothing in this Agreement, express or implied, is intended
to confer upon any person other than the Parties and their respective successors
and permitted assigns, any tights, remedies or obligations under or by reason of
this Agreement.
9.2 NON-DISCLOSURE OF INFORMATION. Seller expressly covenants and agrees that it
will not at any time, directly or indirectly, on any basis for any reason, use
or permit third parties within their control or authority or under their
supervision to use any trade secrets, confidential information or proprietary
information of, or relating to, the Business ("Confidential Information"), other
than in furtherance of the Business Confidential Information shall include,
without limitation, data and other information relating to any of such party's
processes, apparatus, products, software, packages, programs, trends in
research, product development techniques or plans, research and development
programs and plans or any works and all secrets, customer lists lists of haulers
and carters, lists of employees, sales representatives and their territories,
mailing lists, details of consultant contracts, pricing policies, operational
methods, marketing plans or strategies, business acquisition plans, new
personnel acquisition plans, designs and design projects and other confidential
business affairs concerning the Buyer and the Buyer's business~ Seller, Buyer or
any Affiliate of Seller or Buyer, whether for its own account or otherwise, and
will not divulge such Confidential Information to any Person other than in
furtherance of this Business. Seller shall not be prohibited from divulging
information deemed to be a trade secret or confidential or proprietary
information of the Business; (i) if the specific item of information becomes
generally available to the public without violation of this Agreement or any
other confidentiality agreement among or between Buyer and Seller, or (ii) if
such disclosure is compelled by law, in which event Seller agrees to give Buyer
prior written notice of any disclosure to be made pursuant to this subsection
(ii), and Seller, at Buyer's expense, shall cooperate fully with Buyer to obtain
protective orders, confidential treatment or other such protective action as may
be available to preserve the confidentiality of the information required to be
disclosed.
9.3 REMEDIES. Nothing contained herein is intended to or shall be construed to
limit the remedies which either party may have against the other in the event of
a breach of or default under this Agreement, it being intended that any remedies
shall be cumulative and not exclusive.
9.4 ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement, including the
Schedules attached hereto and the documents delivered pursuant hereto,
constitutes the entire agreement between the parties. No changes of,
modifications of, or additions to this Agreement shall be valid unless the same
shall be in writing and signed by all parties hereto. No action taken pursuant
to this Agreement, including any investigation by or on behalf of any Party,
shall be deemed to constitute a waiver by the Party taking the action of
compliance by the other Party with any representation, warranty, covenant or
agreement contained herein or in any document delivered pursuant hereto. The
waiver by any party hereto of any condition or of a breach of another provision
hereof shall not operate or be construed as a waiver of any other condition or
subsequent breach. The waiver by any party of any of the conditions precedent to
its obligations under this Agreement shall not preclude it for seeking redress
for breach of this Agreement other than with respect to the condition so waived.
9.5 SEVERABILITY. If any provision of this Agreement shall be determined to be
contrary to law and unenforceable by any court of law, the remaining provisions
shall be severable and enforceable in accordance with their terms,
9.6 COUNTERPARTS. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
9.7 HEADINGS INTERPRETATION. The table of contents and article and section
headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of the Agreement. Both
parties have participated substantially in the negotiation and drafting of this
Agreement and each party hereby disclaims any defense or assertion in any
litigation or arbitration that any ambiguity herein should be construed against
the draftsman.
9.8 GOVERNING LAW. This Agreement shall be construed and interpreted according
to the Laws of the State of New York, without regard to its principles of
conflicts of laws. Any proceeding brought by the parties to this Agreement shall
be brought in the Courts of the State of New York.
9.9 PAYMENT OF TAXES, FEES AND EXPENSES. Each party hereto shall pay all fees
and expenses of such party's respective counsel, accountants and other experts
and all other expenses incurred by such party incident to the negotiation,
preparation and execution of this Agreement and the consummation of the
transaction contemplated hereby, including any finder's or brokerage fees.
Seller shall be solely liable for any and all taxes imposed on Seller as a
result of the transactions or otherwise arising from this Agreement.
9.10 NOTICES. Any notice, demand or communication required, permitted or desired
to be given hereunder shall be in writing and shall be deemed effectively given
when personally delivered, delivered by facsimile or other electronic means
(including telecopy and telex) or overnight courier, or five (5) days after
being deposited in the United States mail, postage prepaid, certified or
registered, return receipt required. All notices shall be addressed as follows:
If to Buyer: If to Seller:
Tribeka Tek, Inc. NYN International LLC. 1510 51 St. 0000 Xxxxx Xxxx., Xxxxxxxx,
XX 00000 Xxxxxxx, Xx. 00000.
Any such notice shall be effective upon: (i) receipt if delivered by facsimile
transmission or overnight or other courier service, or (ii) if mailed, five (5)
days after deposit with the U.S. Postal Service or the date of delivery as shown
on the return receipt therefore. Either Party may change the address to which
notices are to be addressed by giving the other Party notice in the manner
herein set forth.
9.11 FURTHER ACTS. Buyer and Seller shall, without further consideration,
execute and deliver such further instruments and documents and do such other
acts and things as the other may reasonably request in order to confirm the
transactions contemplated by this Agreement. Without limiting the foregoing,
Seller shall deliver to Buyer any and all checks, drafts or other forms of
payment received in respect of any of the Accounts Receivable acquired by Buyer
pursuant to the terms of this Agreement and any of the Accounts Receivable
subsequent to the Closing Date derived from the operations of the Business after
the Effective Time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
day and year first above written.
BUYER:
TRIBEKA TEK, INC.
By-/s/ Xxxxx Xxxxxxxx, President
SELLER: NYN International LLC.
By-_ /s/ Xxx Xxxxxx, President
TABLE OF SCHEDULES
SCHEDULE A Purchased Assets, Purchased Assets - Required Consents, Personal
Property Owned, Excluded Assets, Insurance Policies.
1. Assignment of Provisional Patent Docket # NYN002 2. Assignment of Reciprocal
Enhanced Services International Agreement with Novolink Management LLC. 3.
Assignment of Agreement with Kanaga Network Solutions 4. Assignment of Agreement
with Platin
SCHEDULE B Assumed Liabilities, Assumed Liabilities - Required Consents,
Undisclosed Liabilities, Taxes Owing, Outstanding Liens, Indebtedness to and
from Officers, Directors and Others
NONE
SCHEDULE C Intentionally Blank
SCHEDULE D Intentionally Blank
SCHEDULE E Licenses and Permits, Required Consents
SCHEDULE F Contracts, Contracts - Required Consents, Employment Agreements 1.
Assignment of Reciprocal Enhanced Services International Agreement with Novolink
Management LLC. 2. Assignment of Agreement with Kanaga Network Solutions 3
Assignment of Agreement with Platin
SCHEDULE G Rental Due, Leases Subject to Consent for Assignment t to Buyer
SCHEDULE H Intellectual Property
1. Assignment of Provisional Patent Docket # NYN002
SCHEDULE I Pending Litigation and Arbitration
SCHEDULE J Employee Benefit Plans NONE
SCHEDULE K Xxxx of Sale
SCHEDULE L Assignment and Assumption Agreement
SCHEDULE M Employment Agreements NONE
SCHEDULE N Arbitration Agreement
XXXX OF SALE & ASSIGNMENT AND ASSUMPTION AGREEMENT
This Xxxx of Sale and Assignment and Assumption Agreement (this "Assignment and
Assumption") is made as of January 18, 2006 between NYN International LLC
("Seller/ Transferor"), and the Buyer, Tribeka Tek, Inc.
This Assignment and Assumption Agreement is entered into pursuant to, and is
subject to, the Asset Purchase Agreement dated as of January 18, 2006 by and
between Seller and Purchaser (the "Agreement").
This Assignment and Assumption Agreement shall have the meanings given to such
terms in the Asset Purchase Agreement. In consideration of the foregoing
premises, all of the Assets and described in Schedule A-N of the Asset Purchase
Agreement and sufficiency of which are hereby acknowledged, Seller does hereby
sell, Sell , assign and convey unto Buyer, its successors and assigns, all of
the Assets, and Buyer does not assume any liabilities. No provisions set forth
in this Assignment and Assumption shall be deemed to enlarge, alter or amend the
terms and provisions of the Asset Purchase Agreement. In the event of any
conflict between the provisions of this Assignment and Assumption and the
provisions of the Asset Purchase Agreement, the Asset Purchase Agreement shall
control.
This Assignment and Assumption is made solely for the benefit of Seller and
Purchaser and no third party shall have any right to enforce its terms or to
rely on it. This instrument and the rights of the parties under it shall be
governed by and construed in accordance with laws of the State of New York
without regard to its conflicts of laws rules.
This Assignment and Assumption may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Assignment and Assumption
effective as of the date first written above.
SIGNATURE PAGES
SELLER
NYN INTERNATIONAL LLC
XXX XXXXXX, /s/ PRESIDENT
BUYER
TRIBEKA TEK, INC.
XXXXX SCHWARTZ_/s/PRESIDENT
ARBITRATION AGREEMENT
THIS AGREEMENT ("Arbitration Agreement") between the parties that are signatory
to an Asset Purchase Agreement , a copy of which is/are attached hereto as
Exhibit A (each individually referred to herein as a "party" or collectively
referred to herein as the "parties").
WITNESSETH
A. WHEREAS, the parties have entered into certain written agreements in
connection with a transaction where Tribeka Tek, Inc. is purchasing all of the
assets and intellectual properties of VGTel from NYN International LLC.
B. WHEREAS, the parties wish to provide arbitration as the sole remedy for
resolution of any dispute, claim or controversy of any kind or nature arising
out of or relating to the breach, termination, or validity of such written
agreements, except as specified herein:
NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants
contained herein, and other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Exclusive Remedy.
Arbitration shall be the sole and exclusive remedy for any dispute, claim or
controversy of any kind or nature (a "Claim") arising out of or relating to the
breach, termination or validity of any the agreements (the "Agreements") entered
into by the parties hereto and identified in the attached Exhibit A
2. Claims not Subject to Arbitration.
This Agreement does not apply to (a) any legal action by the parties seeking
injunctive relief for breach or enforcement of any provision in any of the
Agreements which would cause the complaining party or parties irreparable harm
and for which there is no adequate remedy at law and (b) any agreement,
provision or undertaking that provides it is not subject to arbitration.
3. Procedure.
Any Claim submitted to arbitration shall be decided by a single neutral
arbitrator (the "Arbitrator"). The parties to the arbitration shall mutually
select the Arbitrator not later than forty-five (45) days after service of the
demand for arbitration. If the parties for any reason do not mutually select the
Arbitrator within the forty-five (45) day period, then any party may apply to a
court of competent jurisdiction as noted in paragraph 4 below, to appoint a
retired judge as the Arbitrator. The parties agree that arbitration shall be
conducted in accordance with the commercial arbitration rules then in effect of
the American Arbitration Association.
The Arbitrator shall apply the substantive federal, state, or local laws of the
County and City of New York, Borough of Manhattan and of the United States
District Court for the Southern District of New York, applicable to any Claim
submitted to arbitration. In ruling on any such Claim, the Arbitrator shall have
the authority to award only such remedies or forms of relief as are provided for
under the substantive law governing such Claim, but in any event, the Arbitrator
shall not award any punitive, exemplary or consequential damages. The award
entered by the Arbitrator shall be final and binding on all parties
participating in the arbitration.
4. Consent to Jurisdiction
The parties consent to the jurisdiction of the Supreme Court of the State,
County and city of New York, Borough of Manhattan and of the United States
District Court of the Southern District of the Sate of New York for the
arbitration proceedings and to enforce the judgment of the award in such
arbitration proceedings, but not otherwise. The parties may bring an action in
any such court to compel arbitration in accordance with the terms of this
Arbitration Agreement.
5. Costs
Any fees and costs incurred in the arbitration will be shared equally by the
parties participating in the arbitration, except that the Arbitrator may
reallocate such fees among such parties if the Arbitrator determines that an
equal allocation would impose an unreasonable financial burden on any one or
more parties.
The parties shall be responsible for their own attorneys' fees and costs, except
that the Arbitrator shall have the authority to award attorneys' fees and costs
to the prevailing party iii accordance with the applicable law governing the
dispute.
6. Interpretation.
The Arbitrator, and not any federal or state court, shall have the exclusive
authority to resolve any issue relating to the interpretation, formation or
enforceability of this Agreement, or any issue relating to whether a Claim is
subject to arbitration under this Arbitration Agreement
IN WITNESS WHEREOF, this Agreement has been entered into by the parties as of
January18, 2006.
BUYER: SELLER:
Tribeka Tek, Inc. NYN International LLC
_ By /s/ Xxxxx Xxxxxxxx, President By /s/ By Xxx Xxxxxx, President
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is made effective as
of this18th day of January 2006 by and among TRIBEKA TEK, INC. (""TTI" or
"Buyer"), a corporation with the principal office located at 0000 00 Xx.,
Xxxxxxxx, XX 00000, and NYN International LLC. ("NYN" or "Seller") Texas
Corporation located at 0000 Xxxxx Xxxx., Xxxxxxx, Xx. 00000.
RECITALS
A. Buyer desires to purchase from Seller the Purchased Assets on the
following terms and conditions; and
B. Seller desires to sell to Buyer the Purchased Assets on the
following terms and conditions.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, representations, warranties, conditions, and agreements hereinafter
expressed, the Parties agree as follows:
ARTICLE I.
DEFINITIONS
In addition to those capitalized terms defined throughout this Agreement,
the following terms shall have the meanings ascribed to them here below:
1.1 "CLOSING" means the consummation of the transactions contemplated
by this Agreement.
1.2 "CLOSING DATE" MEANS THE date hereof, or such later mutually
agreeable date within ten (10) days of the date hereof as the Parties may
designate in writing.
1.3 "EFFECTIVE TIME" means the effective time of the Closing, which
shall be as of
11:59 p.m. on the day preceding the Closing Date.
1.4 "PERSON" means any natural person, any corporation, partnership,
limited liability company, limited liability partnership, joint venture,
association, company, or other legal entity, and any Government.
ARTICLE II.
PURCHASE AND SALE OF PURCHASED ASSETS
2.1 ASSETS TO BE PURCHASED.
a) Subject to the terms and conditions hereof on the Closing Date, and
as of the Effective Time, Seller shall sell to Buyer, free and clear of all
liens, claims, restrictions or encumbrances of any kind, unless otherwise
provided herein, all assets and property and associated rights and
interests, real, personal, and mixed, tangible and intangible, of whatever
kind, owned, used or held for use by Seller (the "Purchased Assets") in
connection with the business and operations of Seller (the "Business").
Without limiting the generality of the foregoing, the Purchased Assets
include the following items:
(i) All assets reflected and/or described on the asset list attached as Schedule
--------
A;
(ii) All accounts receivable of Seller in connection with the Business;
(iii) All contracts of Seller with customers, all contracts for the
leasing of equipment by Seller and all of Seller's software licenses or
other intellectual property licenses;
(iv) All permits, approvals, licenses and certifications issued to Seller by any
government authority or by a private testing or certifying authority in
connection with the Business, to the extent assignable under the terms thereof
and applicable law;
(v) All patents, trademarks, service marks, trade names, corporate
names, copyrights, and copyrighted works; registrations thereof and
applications therefore; trade secrets, software (whether in source code or
object code), firmware, mask works, programs, inventions, discoveries,
proprietary processes, and items of proprietary know-how, information, data
or intellectual property, proprietary prospect lists, customer lists,
projections, analyses, and market studies; and licenses, sublicenses,
assignments, and agreements in respect of any of the foregoing (the
"Intellectual Property"), documentation thereof and the goodwill associated
therewith and the right and power to assert, defend and recover title
thereto in the same manner and to the same extent as Seller could or could
cause to he done if the transactions contemplated hereby did not occur, and
the right to recover for past damages on account of the infringement,
misuse, or theft thereof.
(vi) All records, including business, computer, engineering, and other
records, and all associated documents, discs, tapes, and other storage or
recordkeeping media of Seller prepared or held in connection with the
Business, including but not limited to all sales data, customer lists,
accounts, bids, contracts, supplier records, and other data and information
of the Business, excluding corporate minute books of Seller;
(vii) All rights and claims against others under contracts; and
(viii) All other claims against others, rights, and choses in action, liquidated
or unliquidated, of Seller arising from the Business, including those arising
under insurance policies.
2.2 CONSIDERATION. The consideration to be paid by Buyer to Seller shall be as
follows:
Buyer has effected a forward split of 826.67 shares for every one share of
Tribeka Tek, Inc. outstanding, bringing the outstanding shares from 1500 to
1,240,000.
Upon Closing Buyer will deliver 2,760,000 restricted shares to shareholders of
NYN International LLC., to be designated by Seller and authorized the Name
change from Tribeka Tek, Inc. to VGTel, Inc.
Buyer appointed Xxx Xxxxxx as CEO, Chairman and Treasurer, and Xxxxxx Xxxxx
as VP Marketing & Director and Xxxx Xxxxxx as Secretary. Xxxxx Xxxxxxxx and
Xxxxx Xxxxxxxx resigned as officers and directors.
Buyer undertakes to conduct best efforts to prepare all of the necessary
filings and due diligence for filing an SB-2 with the SEC. Once effective, buyer
shall arrange with market maker for filing an A-211 and shall be responsible for
coordinating all of the steps necessary to submit the appropriate information to
the NASD.
2.3 CLOSING. The Closing shall take place at 12:00 p.m. on the Closing Date
via email and fax communication.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby make the following representations and warranties, each of
which is true and correct on the date hereof and each of which shall be true and
correct on the Closing Date and shall survive the Closing Date and the
transactions contemplated hereby.
3.1 CORPORATE EXISTENCE AND POWER OF SELLER. Seller is a corporation
duly incorporated, validly existing and in good standing under the laws of
the State of Texas. Except as set forth on the attached Schedules, Seller
has the corporate power and authority to own and use its assets and to
transact the business in which it is engaged, holds all franchises,
licenses and permits necessary and required therefore, is duly licensed or
qualified to do business as a foreign corporation and is in good standing
in each jurisdiction where such license or qualification is required.
Seller has the corporate power to enter into this Agreement, to perform its
obligations hereunder, and to consummate the transactions contemplated
hereby.
3.2 APPROVAL AND ENFORCEABILITY OF AGREEMENT. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized, approved and ratified by all
necessary action on the part of Seller. Certified copies of all required
resolutions, authorizations, consents, approvals and/or ratifications have
been provided to Buyer and no such resolution, authorization, consent or
approval has been altered, amended, rescinded, repealed or revoked. Seller
has full authority to enter into and deliver this Agreement, to perform its
obligations hereunder, and to consummate the transactions contemplated
hereby. Assuming the due execution and delivery hereof by Buyer, this
Agreement is the legal, valid and binding obligation of Seller, enforceable
against Seller according to its terms.
3.3 UNDISCLOSED LIABILITIES. Seller does not have any liabilities
whatsoever, known or unknown, asserted or unasserted, liquidated or
unliquidated, accrued, absolute, contingent, or otherwise, and there is no basis
for any claim against Seller for any such liability except (a) to the extent set
forth in the Financial Statements, or (b) to the extent set forth on Schedule B.
----------
3.4 TAXES. Except as set forth on Schedule B, all tax and information
---------- returns required to be filed by Seller on or prior to the
Closing Date with respect to taxes imposed on or assessed to Seller have
been or will be timely filed. All amounts shown on each of such returns
have been paid or will be paid when due. Any taxes which are to be assumed
by Buyer in respect of the Purchased Assets which at the Closing Date are
not yet due and owing will be adequately reflected on Schedule B. There are
no grounds for the assertion or assessment of -------- - any taxes against
Seller, the Purchased Assets or the Business other than those reflected or
reserved against on the Financial Statements or Schedule B hereto.
---------- Neither the Purchased Assets nor the Business are encumbered by
any liens arising out of any unpaid taxes and there are no grounds for the
assertion or assessment of any liens against the Purchased Assets or the
Business in respect of any taxes (other than liens for taxes if payment
thereof is not yet required, and which are set forth on Schedule B hereto).
The transactions contemplated by ---------- this Agreement will not give
rise to (i) the creation of any liens against the Purchased Assets or the
Business in respect of any taxes or (ii) the assertion of any additional
taxes against the Purchased Assets or the Business. There is no action or
proceeding or unresolved claim for assessment or collection, pending or
threatened, by, or present or expected dispute with, any government
authority for assessment or collection from Seller of any taxes of any
nature affecting the Purchased Assets or the Business There is no extension
or waiver of the period for assertion of any taxes against Seller affecting
the Purchased Assets or the Business. None of the Purchased Assets are
subject to a tax indemnification agreement.
3.5 PERSONAL PROPERTY - OWNED. Except as set forth on Schedule A
---------- hereto, Seller has good and marketable title to all personal
property included in the Purchased Assets, including in each case all
personal property reflected in the Financial Statements or acquired after
the date thereof (except any personal property subsequently sold in the
ordinary course of the Business), free and clear of all liens, claims and
encumbrances and there exists no restriction on the use or transfer of such
property.
3.6 REAL AND PERSONAL PROPERTY - LEASED TO SELLER. Set forth on
Schedule G hereto is a copy of each lease under which Seller is the lessee
of --- any real property in connection with the Business, and on Schedule G
hereto is a ---------- description of each lease under which Seller is the
lessee of any personal property in connection with the Business. Seller has
delivered to Buyer a true, correct and complete copy of each lease
identified on Schedule G. The premises ---------- or property described in
said leases are presently occupied or used by Seller as lessee under the
terms of such leases. Except as set forth on Schedule U, all ----------
rentals due under such leases have been paid and there exists no default
under the terms of any such leases and no event has occurred which, upon
passage of time or the giving of notice, or both, would result in any event
of default or prevent Seller from exercising and obtaining the benefits of
any rights or options contained therein. Seller has all right, title and
interest of the lessee under the terms of said leases, free of all liens
and all such leases are valid and in fill force and effect. Except as set
forth on Schedule 0, no ---------- consent is necessary for the assignment
to Buyer of such leases under which Seller is lessee, Upon the Closing,
Buyer will have all right, title and interest of the lessee under the terms
of such leases, free of all liens. There is no default or basis for
acceleration or termination under, nor has any event occurred nor does any
condition exist which, with the passage of time or the giving of notice, or
both, would constitute a default or basis for acceleration under any
underlying lease, agreement, mortgage or deed of trust which default or
basis for acceleration would adversely affect any lease described on
Schedules U or the property or use of the property covered by such lease.
--- Subject to any consent required of a lessor as set forth on Schedule U,
there ---------- will be no default or basis for acceleration under any
such underlying lease, agreement, mortgage or deed of trust as a result of
the transactions provided for in this Agreement.
3.7 INTELLECTUAL PROPERTY.
(a) Schedule H contains a true, complete and accurate list of all
---------- Seller's Intellectual Property.
3.8 NECESSARY PROPERTY AND TRANSFER OF PURCHASED ASSETS. The Purchased
Assets constitute all of Seller's property and property rights now used,
useful or necessary for the conduct of the Business in the manner and to
the extent presently conducted and planned by Seller. No such assets or
property are in the possession of others and Seller holds no property on
consignment. No consent is necessary to, and there exists no restriction
on, the transfer of any of the Purchased Assets. There exists no condition,
restriction or reservation affecting the title to or utility of the
Purchased Assets or Assumed Liabilities which would prevent Buyer from
occupying or utilizing the Purchased Assets or enforcing the rights under
the Assumed Liabilities, or any part thereof to the same full extent that
Seller might continue to do so if the sale and transfer contemplated hereby
did not take place.
Upon the Closing, good and marketable title to the Purchased Assets
and the rights under the Assumed Liabilities shall be vested in Buyer free
and clear of all liens, claims and encumbrances.
3.9 USE AND CONDITION OF PROPERTY. Seller shall take all action
necessary to provide to Buyer the benefit of all manufacturer's warranties
and maintenance contracts covering equipment included in the Purchased
Assets, to the extent that such warranties exist and are in the possession
of the Seller. Seller has taken no action nor has Seller failed to take any
action that might nullify or release any such manufacturer from any
liabilities under such warranties or maintenance contracts.
EXCEPT AS PROVIDED HEREIN, NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, IS MADE WITH RESPECT TO THE CONDITION OR FITNESS FOR A PURPOSE OR
PARTICULAR USE OF THE ASSETS INCLUDED IN THE PURCHASED ASSETS, IT BEING
UNDERSTOOD THAT SUCH ASSETS ARE ACQUIRED OR PURCHASED BY BUYER IN AN "AS
IS" CONDITION.
3.10 LICENSES AND PERMITS. Set forth on Schedule Ehereto is a
---------- description of each license or permit held or pending for the
Seller, which licenses or permits are required for the conduct of the
Business together with the name of the government agency or entity that
issues such license or permit. Such licenses and permits are valid and in
full force and effect or are pending, as indicated on Schedule E. Except as
noted on Schedule E, such licenses and ---------- ---------- permits are
freely transferable by Seller, and upon Closing, Buyer will have the right,
title and interest of the holder thereof.
3.11 CONTRACTS-DISCLOSURE. Set forth on Schedule Fis a list of all
---------- contracts of Seller. Each contract is a valid and binding
obligation of the parties thereto, enforceable in accordance with its
terms, and in full force and effect. No party to any contract is in breach
or violation thereof or default thereunder. No event has occurred which,
through the passage of time or the giving of notice, or both, would
constitute, and neither the execution of this Agreement nor the Closing do
or will constitute or result in, a breach or violation of or default under
any contract, or would cause the acceleration of any obligation of any
party thereto or the creation of a lien upon any Purchased Asset. Each such
contract will be duly assigned to Buyer on the Closing Date and upon such
assignment, Buyer will acquire all right, title and interest of Seller in
and to such contract and will be substituted for Seller under the terms of
such contract. Except as set forth on Schedule F, no consent is required
for such assignment.
3.12 NO BREACH OF LAW OR GOVERNING DOCUMENTS. Except as set forth on
Schedule E Seller has complied with and is not in default under or in
breach or -------- violation of any applicable law' of any government body,
or the provisions of any franchise or license, or in default under or in
breach or violation of any provision of its articles or certificate of
incorporation or its bylaws. Neither the execution of this Agreement nor
the Closing will constitute or result in any such default, breach or
violation. No government permits or consents are necessary to effect the
transactions contemplated hereby.
3.13 LITIGATION AND ARBITRATION. Except as set forth on Schedule I
----------
hereto, there is no suit, claim, action or proceeding now pending or, to the
best knowledge of Seller, its officers and directors, threatened before any
court, grand jury, administrative or regulatory body, government agency,
arbitration or mediation panel or similar body, nor are there any grounds
therefore, to which Seller, officers or directors is a party or which may result
in any judgment, order, decree, liability, award or other determination which
will, or could, individually or in the aggregate, result in a Material Adverse
Change. No such judgment, order, decree or award has been entered against Seller
nor has any such liability been incurred which has, or could have, such effect.
There is no claim, action or proceeding now pending or threatened before any
court, grand jury, administrative or regulatory body, government agency,
arbitration or mediation panel or similar body which will, or could, prevent or
hamper the consummation of the transactions contemplated by this Agreement,
Seller, its officers and directors are not now nor have been threatened or
subject to, and there are no grounds for, any suit, claim, litigation,
proceeding (administrative, judicial, or in arbitration, mediation or
alternative dispute resolution), government or grand jury investigation, or
other action or order, writ, injunction, or decree of any court or other
Government relating to personal injury, death, or property or economic damage
arising from products of the Seller.
3.14 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS AND OTHERS. Except as
set forth on Schedule B, (a) Seller is not indebted to any shareholder,
----------
director, officer, employee or agent of Seller except for amounts due as normal
salaries, wages and bonuses and in reimbursement of ordinary expenses on a
current basis and (b) no shareholder, director, officer, employee or agent of
Seller is indebted to Seller except for advancements for ordinary business
expenses in a normal amount.
3.15 LABOR AGREEMENTS AND EMPLOYMENT AGREEMENTS. Except as set forth on
Schedule F, Seller is not a party to (a) any union collective bargaining, works
----------
council, or similar agreement or arrangement, or (b) any written or oral
employment agreement. True, correct and complete copies of all documents
creating or evidencing any agreement or arrangement listed on Schedule F have
----------
been delivered to Buyer. Seller is in compliance in all material respects with
all laws respecting employment conditions and practices, has withheld and paid
all amounts required by applicable law to be withheld from the wages and
salaries of its employees, and is not liable for any arrears of wages or any
taxes (other than wages and taxes that have not become due or payable) or
penalties for failure to comply with any of the foregoing,
3.16 EMPLOYEE BENEFIT PLANS. Except as set forth on Schedule I, Seller has
----------
no pension, thrift, savings, profit sharing, retirement, incentive bonus or
other bonus, medical, dental, life, accident insurance, benefit, employee
welfare, disability, group insurance, stock appreciation, stock option,
executive or deferred compensation, hospitalization or other similar fringe or
employee benefit plans, programs or arrangements. Each such employee plan or
agreement has been furnished to Buyer. Seller is in compliance with all
provisions of the Employee Retirement Security Act of 1934, as amended
("ERJSA"). Buyer is not required under ERJSA or the Internal Revenue Code of
1986, as amended (the "Code") to establish, maintain or continue any employee
plan agreement maintained by Seller. The consummation of the transactions
contemplated by this Agreement will not (A) entitle any current or former
employee of Seller to severance pay, unemployment compensation or any other
payment, (B) accelerate the time of payment or vesting, or increase the amount
of compensation due to any such employee or former employee, (C) result in any
prohibited transaction described in Section 406 of ERISA or Section 4975 of the
Code for which an exemption is not available, or (D) give rise to the payment of
any amount that would not be deductible pursuant to the terms of Section 280G of
the Code.
3.17 INSURANCE POLICIES. Set forth on Schedule A hereto is a list of
----------
all insurance policies and bonds in force covering or relating to the Purchased
Assets or the Business. Policies thereon described evidence insurance in such
amounts and against such risks and losses as are generally maintained with
respect to comparable businesses and properties.
3.18 BROKER'S FEES. Seller has not retained any broker, finder or agent or
agreed to pay any broker's fees, finder's fees or commissions with respect to
the transactions contemplated by this Agreement.
3.19 BOOKS AND RECORDS. The books of account, stock record books and
minute books and other corporate records of Seller are in all material respects
complete and correct, have been maintained in accordance with good business
practices and the matters contained therein are accurately reflected on the
Financial Statements. The minute books and stock books of Seller have been made
available to Buyer and are correct and complete to the date hereof
3.20 DISCLOSURE. No representation or warranty of Seller herein and no
statement, information or certificate furnished or to be furnished by or on
behalf of Seller pursuant hereto or in connection with the transactions
contemplated hereby contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary in order to make
the statements contained herein or therein not misleading.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties each of
which is true and correct on the date hereof and each of which shall be true and
correct on the Closing Date and shall survive the Closing Date and the sale
contemplated hereby,
4.1 CORPORATE EXISTENCE OF BUYER. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York. Buyer has the corporate power and authority to own and use its
properties and to transact the business in which it is engaged. As of the date
hereof, "TTI" is qualified to do business in New York. "TTI" does not own any
shares of capital stock or other interest in any corporation, partnership,
association or other entity.
4.2 APPROVAL OF AGREEMENT. THE EXECUTION AND delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized, approved and ratified by all necessary action on the part of Buyer.
Copies of all required resolutions, authorizations, consents, approvals and/or
ratifications have been provided to Seller and no such resolution,
authorization, consent or approval has been altered, amended, rescinded,
repealed or revoked. Buyer has full authority to enter into and deliver this
Agreement, to perform its obligations hereunder, and to consummate the
transactions contemplated hereby. Assuming the due execution and delivery hereof
by Seller, this Agreement is the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms,
4.3 NO BREACH OF ARTICLES OR INDENTURES. The execution of this
Agreement and the
consummation of the transactions contemplated hereby has not and will not
constitute or result in the breach of any of the provisions of, or constitute a
default under, the operating agreement of Buyer, or any material indenture,
evidence of indebtedness or other commitment to which Buyer is a party or by
which it is bound, which breach of default would have a material adverse effect
on the consummation of the transactions contemplated by this Agreement.
4.4 BROKER'S FEES. Buyer has not retained any broker, finder or agent or
agreed to pay any broker's fees, finder's fees or commissions with respect to
the transactions contemplated by this Agreement.
4.5 CAPITALIZATION. The number of authorized, issued and
outstanding shares of Company Stock as of the date hereof is 200,000,000. The
number of Shares issued and outstanding following the issuance and cancellations
outlined in Paragraph 2.3 shall be:
An aggregate of 4,000,000 Common Shares issued. No Preferred Shares have been
issued to date.
4.6 FINANCIAL STATEMENTS. The Financial Documents contain the
(i) audited balance sheets of "TTI" as of December 30 , 2004, and December 30,
2005 (including the notes thereto), and the related statements of operations,
cash flows and shareholders' equity (deficit) for each of the years then ended,
and The "TTI" Financial Statements fairly present the financial condition and
the results of operations, changes in stockholders' equity and cash flows of
"TTI" at the respective dates of and for the periods referred to in the "TTI"
Financial Statements, which were prepared in conformity with GAAP, consistently
applied.
FINANCIAL STATEMENT COMPLIANCE. "TTI"s Financial Statements have been prepared
in accordance with Regulation S-X or S-B, as applicable, adopted under the 1934
Act, for the periods specified.
ARTICLE V.
CLOSING
5.1 DELIVERIES BY SELLER. On the Closing Date, Seller shall deliver or
cause to be delivered the following to Buyer:
(a) Xxxx of Sale. Seller shall deliver a Xxxx of Sale in form and
------- ----
substance as attached hereto as Schedule K, and any other necessary or
----------
appropriate documents conveying to Buyer good and marketable title to the
Purchased Assets; and
(b) Assignment and Assumption Agreement. Seller shall deliver an
------------------------------------
Assignment and Assumption Agreement in form and substance as attached hereto as
Schedule L, with related consents, if any are so required.
----------
5.2 DELIVERIES BY BUYER ON THE Closing Date, Buyer shall deliver, or
cause to be delivered to Seller:
(a) Payment of Purchase Price. Seller shall receive from Buyer the
---------- --------------
Purchase Price and the Assignment and Assumption Agreement, duly executed by
Buyer.
(b) Member's Interest. One or more certificates representing the
-----------------
Member's Interests described in Section 2.3(c).
(c) Employment Contract. Buyer shall have executed separate employment
--------------------
agreements with [IF APPLICABLE] in form and substance as set forth in Schedule M
----------
ARTICLE VI.
INDEMNIFICATION
6.1 INDEMNIFICATION OF BUYER. Seller hereby agrees to indemnify and
hold Buyer, its shareholders, directors, officers, employees, Affiliates,
successors, assigns and agents of each of them (collectively, the
"Indemnified Parties") harmless from, against and in respect of, and waives
any claim for contribution or indemnity with respect to, any and all
claims, losses, damages, liabilities, expenses or costs ("Losses"), plus
reasonable attorneys' fees and expenses incurred in connection with Losses
and/or enforcement of this Agreement, plus interest from the date incurred
through the date of payment at the prime lending rate as published in the
Wall Street Journal from time to time prevailing (in all, "Indemnified
Losses") incurred or to be incurred by any of them (a) to the extent
resulting from or arising out of, or alleged to result from or arise out
of, any breach or violation of the representations, warranties, covenants
or agreements of Seller contained in this Agreement, or in any exhibit,
statement, schedule, certificate, instrument or document delivered pursuant
hereto, including provisions of this Article VII, and (b) to the extent
resulting from or arising out of, or alleged to result from or arise out
of, any liability or obligation of Seller not expressly assumed by Buyer
hereunder.
6.2 INDEMNIFICATION OF SELLER. Buyer hereby agrees to indemnify and
hold Seller, its shareholders, directors, officers, employees, Affiliates,
successors, assigns and agents of each of them (collectively, the
"Indemnified Parties") harmless from, against and in respect of, and waives
any claim for contribution or indemnity with respect to, any and all
claims, losses, damages, liabilities, expenses or costs ("Losses"), plus
reasonable attorneys' fees and expenses incurred in connection with Losses
and/or enforcement of this Agreement, plus interest from the date incurred
through the date of payment at the prime lending rate as published in the
Wall Street Journal from time to time prevailing (in all, "Indemnified
Losses") incurred or to be incurred by any of them to the extent resulting
from or arising out of, or alleged to result from or arise out of, any
breach or violation of the representations, warranties, covenants or
agreements of Buyer contained in this Agreement, or in any exhibit,
statement, schedule, certificate, instrument or document delivered pursuant
hereto.
6.3 PARTICIPATION IN LITIGATION. In the event any suit or other
proceeding is initiated against an Indemnified Party with respect to which
Buyer alleges Seller is or may be obligated to indemnify an Indemnified
Party hereunder, Seller shall be entitled to participate in such suit or
proceeding, at its expense and by counsel of its choosing, provided that
(a) such counsel is reasonably satisfactory to Buyer, and (b) Buyer shall
retain primary control over such suit or proceeding. Such counsel shall be
afforded access to all information pertinent to the suit or proceeding in
question. Buyer shall not settle or otherwise compromise any such suit or
proceeding without the prior consent of Seller, which consent shall not be
unreasonably withheld, if the effect of such settlement or compromise would
be to impose liability on Seller, hereunder.
6.4 CLAIMS PROCEDURE. In the event from time to time Buyer believes that it
or any other Indemnified Party has or will suffer any Losses for which Seller is
obligated to indemnify it hereunder, it shall promptly notify Seller in writing
of the matter, specifying therein the reason why Buyer believes that Seller is
or will be obligated to indemnify, the amount, if liquidated, to be indemnified,
and the basis on which Buyer has calculated such amount; if not yet liquidated,
the notice shall so state; provided, however, that the right of a person to be
indemnified hereunder shall not be adversely affected by a failure to give such
notice unless, and then only to the extent that, an Indemnifying Party is
prejudiced thereby. Seller shall pay any amount to be indemnified hereunder not
more than five days after receipt of notice from Buyer of the liquidated amount
to be indemnified.
ARTICLE VII.
DISPUTE RESOLUTION
7.1 SCOPE; INITIATION. Resolution of any and all disputes arising from
or in connection with this Agreement, whether based on contract, tort,
statute or otherwise, including, disputes over arbitrability or disputes in
connection with claims by third persons ("Disputes") shall be exclusively
governed by and settled in accordance with the provisions of this Article
VII provided, that the foregoing shall not preclude equitable or other
judicial relief to enforce the provisions hereof or to preserve the status
quo pending resolution of Disputes hereunder; and provided further that
resolution of Disputes with respect to claims by third persons shall be
deferred until any judicial proceedings with respect thereto are concluded.
Either Party to this Agreement may commence proceedings hereunder by
delivery of written notice providing a reasonable description of the
Dispute to the other, including a reference to this Article VII (the
"Dispute Notice").
7.2 ARBITRATION. Arbitration shall be the sole and exclusive remedy for
any dispute, claim, or controversy of any kind or nature arising out of, related
to, or connected with this Agreement and the arbitration shall be governed by
and conducted in accordance with the Arbitration Agreement attached hereto and
incorporated herein by reference as Schedule N.
----------
ARTICLE VLLL
8.3 OFFICERS & BOARD OF DIRECTORS:
As of the date of this agreement, the Officers & Directors shall be:
OFFICERS & DIRECTORS:
CHAIRMAN & CEO & TREASURER - XXX XXXXXX,
XXXX XXXXXX SECRETARY, DIRECTOR
XXXXXX XXXXX, DIRCTOR
RESIGNING OFFICERS AND DIRECTORS
XXXXX XXXXXXXX
XXXXX XXXXXXXX
ARTICLE VLX.
MISCELLANEOUS
9.1 ASSIGNMENT; BINDING AGREEMENT. Neither this Agreement nor any of
Buyer's or Sellers rights or obligations hereunder may be assigned without
the other Party's prior written consent. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and to their
respective successors and permitted assigns Nothing in this Agreement,
express or implied, is intended to confer upon any person other than the
Parties and their respective successors and permitted assigns, any tights,
remedies or obligations under or by reason of this Agreement.
9.2 NON-DISCLOSURE OF INFORMATION. Seller expressly covenants and
agrees that it will not at any time, directly or indirectly, on any basis
for any reason, use or permit third parties within their control or
authority or under their supervision to use any trade secrets, confidential
information or proprietary information of, or relating to, the Business
("Confidential Information"), other than in furtherance of the Business
Confidential Information shall include, without limitation, data and other
information relating to any of such party's processes, apparatus, products,
software, packages, programs, trends in research, product development
techniques or plans, research and development programs and plans or any
works and all secrets, customer lists lists of haulers and carters, lists
of employees, sales representatives and their territories, mailing lists,
details of consultant contracts, pricing policies, operational methods,
marketing plans or strategies, business acquisition plans, new personnel
acquisition plans, designs and design projects and other confidential
business affairs concerning the Buyer and the Buyer's business~ Seller,
Buyer or any Affiliate of Seller or Buyer, whether for its own account or
otherwise, and will not divulge such Confidential Information to any Person
other than in furtherance of this Business. Seller shall not be prohibited
from divulging information deemed to be a trade secret or confidential or
proprietary information of the Business; (i) if the specific item of
information becomes generally available to the public without violation of
this Agreement or any other confidentiality agreement among or between
Buyer and Seller, or (ii) if such disclosure is compelled by law, in which
event Seller agrees to give Buyer prior written notice of any disclosure to
be made pursuant to this subsection (ii), and Seller, at Buyer's expense,
shall cooperate fully with Buyer to obtain protective orders, confidential
treatment or other such protective action as may be available to preserve
the confidentiality of the information required to be disclosed.
9.3 REMEDIES. Nothing contained herein is intended to or shall be
construed to limit the remedies which either party may have against the
other in the event of a breach of or default under this Agreement, it being
intended that any remedies shall be cumulative and not exclusive.
9.4 ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement,
including the Schedules attached hereto and the documents delivered
pursuant hereto, constitutes the entire agreement between the parties. No
changes of, modifications of, or additions to this Agreement shall be valid
unless the same shall be in writing and signed by all parties hereto. No
action taken pursuant to this Agreement, including any investigation by or
on behalf of any Party, shall be deemed to constitute a waiver by the Party
taking the action of compliance by the other Party with any representation,
warranty, covenant or agreement contained herein or in any document
delivered pursuant hereto. The waiver by any party hereto of any condition
or of a breach of another provision hereof shall not operate or be
construed as a waiver of any other condition or subsequent breach. The
waiver by any party of any of the conditions precedent to its obligations
under this Agreement shall not preclude it for seeking redress for breach
of this Agreement other than with respect to the condition so waived.
9.5 SEVERABILITY. If any provision of this Agreement shall be
determined to be contrary to law and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with
their terms,
9.6 COUNTERPARTS. This Agreement may be executed in one or more
identical counterparts, each of which shall be deemed an original but all
of which together will constitute one and the same instrument.
9.7 HEADINGS INTERPRETATION. The table of contents and article and
section headings contained in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of the
Agreement. Both parties have participated substantially in the negotiation
and drafting of this Agreement and each party hereby disclaims any defense
or assertion in any litigation or arbitration that any ambiguity herein
should be construed against the draftsman.
9.8 GOVERNING LAW. This Agreement shall be construed and interpreted
according to the Laws of the State of New York, without regard to its
principles of conflicts of laws. Any proceeding brought by the parties to
this Agreement shall be brought in the Courts of the State of New York.
9.9 PAYMENT OF TAXES, FEES AND EXPENSES. Each party hereto shall pay
all fees and expenses of such party's respective counsel, accountants and
other experts and all other expenses incurred by such party incident to the
negotiation, preparation and execution of this Agreement and the
consummation of the transaction contemplated hereby, including any finder's
or brokerage fees. Seller shall be solely liable for any and all taxes
imposed on Seller as a result of the transactions or otherwise arising from
this Agreement.
9.10 NOTICES. Any notice, demand or communication required, permitted
or desired to be given hereunder shall be in writing and shall be deemed
effectively given when personally delivered, delivered by facsimile or
other electronic means (including telecopy and telex) or overnight courier,
or five (5) days after being deposited in the United States mail, postage
prepaid, certified or registered, return receipt required. All notices
shall be addressed as follows:
If to Buyer: If to Seller:
Tribeka Tek, Inc. NYN
International LLC.
1510 51 St.
0000 Xxxxx Xxxx.,
Xxxxxxxx, XX 00000 Xxxxxxx,
Xx. 00000.
Any such notice shall be effective upon: (i) receipt if delivered by facsimile
transmission or overnight or other courier service, or (ii) if mailed, five (5)
days after deposit with the U.S. Postal Service or the date of delivery as shown
on the return receipt therefore. Either Party may change the address to which
notices are to be addressed by giving the other Party notice in the manner
herein set forth.
9.11 FURTHER ACTS. Buyer and Seller shall, without further
consideration, execute and deliver such further instruments and documents and do
such other acts and things as the other may reasonably request in order to
confirm the transactions contemplated by this Agreement. Without limiting the
foregoing, Seller shall deliver to Buyer any and all checks, drafts or other
forms of payment received in respect of any of the Accounts Receivable acquired
by Buyer pursuant to the terms of this Agreement and any of the Accounts
Receivable subsequent to the Closing Date derived from the operations of the
Business after the Effective Time.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of
the day and year first above written.
BUYER:
TRIBEKA TEK, INC.
By-/s/ Xxxxx Xxxxxxxx, President
SELLER:
NYN International LLC.
By-_ /s/ Xxx Xxxxxx, President
TABLE OF SCHEDULES
SCHEDULE A Purchased Assets, Purchased Assets - Required Consents,
Personal Property Owned, Excluded Assets, Insurance Policies.
1. Assignment of Provisional Patent Docket # NYN002
2. Assignment of Reciprocal Enhanced Services International Agreement with
Novolink Management LLC.
3. Assignment of Agreement with Kanaga Network Solutions
4. Assignment of Agreement with Platin
SCHEDULE B Assumed Liabilities, Assumed Liabilities - Required Consents,
Undisclosed Liabilities, Taxes Owing, Outstanding Liens, Indebtedness to and
from Officers, Directors and Others
NONE
SCHEDULE C Intentionally Blank
SCHEDULE D Intentionally Blank
SCHEDULE E Licenses and Permits, Required Consents
SCHEDULE F Contracts, Contracts - Required Consents, Employment
Agreements
1. Assignment of Reciprocal Enhanced Services International Agreement with
Novolink Management LLC.
2. Assignment of Agreement with Kanaga Network Solutions
3 Assignment of Agreement with Platin
SCHEDULE G Rental Due, Leases Subject to Consent for Assignment t
to Buyer
SCHEDULE H Intellectual Property
1. Assignment of Provisional Patent Docket # NYN002
SCHEDULE I Pending Litigation and Arbitration
SCHEDULE J Employee Benefit Plans
NONE
SCHEDULE K Xxxx of Sale
SCHEDULE L Assignment and Assumption Agreement
SCHEDULE M Employment Agreements
NONE
SCHEDULE N Arbitration Agreement
XXXX OF SALE & ASSIGNMENT AND ASSUMPTION AGREEMENT
This Xxxx of Sale and Assignment and Assumption Agreement (this
"Assignment and Assumption") is made as of January 18, 2006 between NYN
International LLC ("Seller/ Transferor"), and the Buyer, Tribeka Tek, Inc.
This Assignment and Assumption Agreement is entered into pursuant to,
and is subject to, the Asset Purchase Agreement dated as of January 18,
2006 by and between Seller and Purchaser (the "Agreement").
This Assignment and Assumption Agreement shall have the meanings given
to such terms in the Asset Purchase Agreement. In consideration of the
foregoing premises, all of the Assets and described in Schedule A-N of the
Asset Purchase Agreement and sufficiency of which are hereby acknowledged,
Seller does hereby sell, Sell , assign and convey unto Buyer, its
successors and assigns, all of the Assets, and Buyer does not assume any
liabilities. No provisions set forth in this Assignment and Assumption
shall be deemed to enlarge, alter or amend the terms and provisions of the
Asset Purchase Agreement. In the event of any conflict between the
provisions of this Assignment and Assumption and the provisions of the
Asset Purchase Agreement, the Asset Purchase Agreement shall control.
This Assignment and Assumption is made solely for the benefit of
Seller and Purchaser and no third party shall have any right to enforce its
terms or to rely on it. This instrument and the rights of the parties under
it shall be governed by and construed in accordance with laws of the State
of New York without regard to its conflicts of laws rules.
This Assignment and Assumption may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Assignment and
Assumption effective as of the date first written above.
SIGNATURE PAGES
SELLER
NYN INTERNATIONAL LLC
XXX XXXXXX, /s/ PRESIDENT
BUYER
TRIBEKA TEK, INC.
XXXXX SCHWARTZ_/s/PRESIDENT
ARBITRATION AGREEMENT
THIS AGREEMENT ("Arbitration Agreement") between the parties that are signatory
to an Asset Purchase Agreement , a copy of which is/are attached hereto as
Exhibit A (each individually referred to herein as a "party" or collectively
referred to herein as the "parties").
WITNESSETH
A. WHEREAS, the parties have entered into certain written agreements
in connection with a transaction where Tribeka Tek, Inc. is purchasing all of
the assets and intellectual properties of VGTel from NYN International LLC.
B. WHEREAS, the parties wish to provide arbitration as the sole remedy for
resolution of any dispute, claim or controversy of any kind or nature arising
out of or relating to the breach, termination, or validity of such written
agreements, except as specified herein:
NOW THEREFORE, in consideration of the foregoing recitals, the mutual covenants
contained herein, and other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Exclusive Remedy.
Arbitration shall be the sole and exclusive remedy for any dispute, claim or
controversy of any kind or nature (a "Claim") arising out of or relating to the
breach, termination or validity of any the agreements (the "Agreements") entered
into by the parties hereto and identified in the attached Exhibit A
2. Claims not Subject to Arbitration.
This Agreement does not apply to (a) any legal action by the parties seeking
injunctive relief for breach or enforcement of any provision in any of the
Agreements which would cause the complaining party or parties irreparable harm
and for which there is no adequate remedy at law and (b) any agreement,
provision or undertaking that provides it is not subject to arbitration.
3. Procedure.
Any Claim submitted to arbitration shall be decided by a single neutral
arbitrator (the "Arbitrator"). The parties to the arbitration shall mutually
select the Arbitrator not later than forty-five (45) days after service of the
demand for arbitration. If the parties for any reason do not mutually select the
Arbitrator within the forty-five (45) day period, then any party may apply to a
court of competent jurisdiction as noted in paragraph 4 below, to appoint a
retired judge as the Arbitrator. The parties agree that arbitration shall be
conducted in accordance with the commercial arbitration rules then in effect of
the American Arbitration Association.
The Arbitrator shall apply the substantive federal, state, or local laws of the
County and City of New York, Borough of Manhattan and of the United States
District Court for the Southern District of New York, applicable to any Claim
submitted to arbitration. In ruling on any such Claim, the Arbitrator shall have
the authority to award only such remedies or forms of relief as are provided for
under the substantive law governing such Claim, but in any event, the Arbitrator
shall not award any punitive, exemplary or consequential damages. The award
entered by the Arbitrator shall be final and binding on all parties
participating in the arbitration.
4. Consent to Jurisdiction
The parties consent to the jurisdiction of the Supreme Court of the State,
County and city of New York, Borough of Manhattan and of the United States
District Court of the Southern District of the Sate of New York for the
arbitration proceedings and to enforce the judgment of the award in such
arbitration proceedings, but not otherwise. The parties may bring an action in
any such court to compel arbitration in accordance with the terms of this
Arbitration Agreement.
5. Costs
Any fees and costs incurred in the arbitration will be shared equally by the
parties participating in the arbitration, except that the Arbitrator may
reallocate such fees among such parties if the Arbitrator determines that an
equal allocation would impose an unreasonable financial burden on any one or
more parties.
The parties shall be responsible for their own attorneys' fees and costs, except
that the Arbitrator shall have the authority to award attorneys' fees and costs
to the prevailing party iii accordance with the applicable law governing the
dispute.
6. Interpretation.
The Arbitrator, and not any federal or state court, shall have the exclusive
authority to resolve any issue relating to the interpretation, formation or
enforceability of this Agreement, or any issue relating to whether a Claim is
subject to arbitration under this Arbitration Agreement
IN WITNESS WHEREOF, this Agreement has been entered into by the parties
as of January18, 2006.
BUYER: SELLER:
Tribeka Tek, Inc. NYN
International LLC
_ By /s/ Xxxxx Xxxxxxxx, President
By /s/ By Xxx Xxxxxx,
President
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is made effective as
of this18th day of January 2006 by and among TRIBEKA TEK, INC. (""TTI" or
"Buyer"), a corporation with the principal office located at 0000 00 Xx.,
Xxxxxxxx, XX 00000, and NYN International LLC. ("NYN" or "Seller") Texas
Corporation located at 0000 Xxxxx Xxxx., Xxxxxxx, Xx. 00000.
RECITALS
A. Buyer desires to purchase from Seller the Purchased Assets on
the following terms and conditions; and
B. Seller desires to sell to Buyer the Purchased Assets on the
following terms and conditions.
NOW, THEREFORE, in consideration of the foregoing recitals and
the mutual covenants, representations, warranties, conditions, and
agreements hereinafter expressed, the Parties agree as follows:
ARTICLE I. DEFINITIONS
In addition to those capitalized terms defined throughout this
Agreement, the following terms shall have the meanings ascribed to
them here below:
1.1 "CLOSING" means the consummation of the transactions
contemplated by this Agreement.
1.2 "CLOSING DATE" MEANS THE date hereof, or such later mutually
agreeable date within ten (10) days of the date hereof as the Parties
may designate in writing.
1.3 "EFFECTIVE TIME" means the effective time of the Closing,
which shall be as of 11:59 p.m. on the day preceding the Closing Date.
1.4 "PERSON" means any natural person, any corporation,
partnership, limited liability company, limited liability partnership,
joint venture, association, company, or other legal entity, and any
Government.
ARTICLE II.
PURCHASE AND SALE OF PURCHASED ASSETS
2.1 ASSETS TO BE PURCHASED.
(a) Subject to the terms and conditions hereof on the Closing
Date, and as of the Effective Time, Seller shall sell to Buyer, free
and clear of all liens, claims, restrictions or encumbrances of any
kind, unless otherwise provided herein, all assets and property and
associated rights and interests, real, personal, and mixed, tangible
and intangible, of whatever kind, owned, used or held for use by
Seller (the "Purchased Assets") in connection with the business and
operations of Seller (the "Business"). Without limiting the generality
of the foregoing, the Purchased Assets include the following items:
(i) All assets reflected and/or described on the asset list attached
as Schedule -------- A;
(ii) All accounts receivable of Seller in connection with the
Business;
(iii) All contracts of Seller with customers, all contracts for the
leasing of equipment by Seller and all of Seller's software licenses or
other intellectual property licenses;
(iv) All permits, approvals, licenses and certifications issued to
Seller by any government authority or by a private testing or certifying
authority in connection with the Business, to the extent assignable under
the terms thereof and applicable law;
(v) All patents, trademarks, service marks, trade names, corporate
names, copyrights, and copyrighted works; registrations thereof and
applications therefore; trade secrets, software (whether in source code or
object code), firmware, mask works, programs, inventions, discoveries,
proprietary processes, and items of proprietary know-how, information, data
or intellectual property, proprietary prospect lists, customer lists,
projections, analyses, and market studies; and licenses, sublicenses,
assignments, and agreements in respect of any of the foregoing (the
"Intellectual Property"), documentation thereof and the goodwill associated
therewith and the right and power to assert, defend and recover title
thereto in the same manner and to the same extent as Seller could or could
cause to he done if the transactions contemplated hereby did not occur, and
the right to recover for past damages on account of the infringement,
misuse, or theft thereof. (vi) All records, including business, computer,
engineering, and other records, and all associated documents, discs, tapes,
and other storage or recordkeeping media of Seller prepared or held in
connection with the Business, including but not limited to all sales data,
customer lists, accounts, bids, contracts, supplier records, and other data
and information of the Business, excluding corporate minute books of
Seller;
(vii) All rights and claims against others under contracts; and
(viii) All other claims against others, rights, and choses in action,
liquidated or unliquidated, of Seller arising from the Business, including
those arising under insurance policies.
2.2 CONSIDERATION. The consideration to be paid by Buyer to Seller
shall be as follows:
Buyer has effected a forward split of 826.67 shares for every one
share of Tribeka Tek, Inc. outstanding, bringing the outstanding shares
from 1500 to 1,240,000.
Upon Closing Buyer will deliver 2,760,000 restricted shares to
shareholders of NYN International LLC., to be designated by Seller and
authorized the Name change from Tribeka Tek, Inc. to VGTel, Inc.
Buyer appointed Xxx Xxxxxx as CEO, Chairman and Treasurer, and Xxxxxx
Xxxxx as VP Marketing & Director and Xxxx Xxxxxx as Secretary. Xxxxx
Xxxxxxxx and Xxxxx Xxxxxxxx resigned as officers and directors.
Buyer undertakes to conduct best efforts to prepare all of the
necessary filings and due diligence for filing an SB-2 with the SEC. Once
effective, buyer shall arrange with market maker for filing an A-211 and
shall be responsible for coordinating all of the steps necessary to submit
the appropriate information to the NASD.
2.3 CLOSING. The Closing shall take place at 12:00 p.m. on the
Closing Date via email and fax communication.
ARTICLE III. REPRESENTATIONS AND
WARRANTIES OF SELLER
Seller hereby make the following representations and warranties,
each of which is true and correct on the date hereof and each of which
shall be true and correct on the Closing Date and shall survive the
Closing Date and the transactions contemplated hereby.
3.1 CORPORATE EXISTENCE AND POWER OF SELLER. Seller is a
corporation duly incorporated, validly existing and in good standing
under the laws of the State of Texas. Except as set forth on the
attached Schedules, Seller has the corporate power and authority to
own and use its assets and to transact the business in which it is
engaged, holds all franchises, licenses and permits necessary and
required therefore, is duly licensed or qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where
such license or qualification is required. Seller has the corporate
power to enter into this Agreement, to perform its obligations
hereunder, and to consummate the transactions contemplated hereby.
3.2 APPROVAL AND ENFORCEABILITY OF AGREEMENT. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized, approved and ratified
by all necessary action on the part of Seller. Certified copies of all
required resolutions, authorizations, consents, approvals and/or
ratifications have been provided to Buyer and no such resolution,
authorization, consent or approval has been altered, amended,
rescinded, repealed or revoked. Seller has full authority to enter
into and deliver this Agreement, to perform its obligations hereunder,
and to consummate the transactions contemplated hereby. Assuming the
due execution and delivery hereof by Buyer, this Agreement is the
legal, valid and binding obligation of Seller, enforceable against
Seller according to its terms.
3.3 UNDISCLOSED LIABILITIES. Seller does not have any liabilities
whatsoever, known or unknown, asserted or unasserted, liquidated or
unliquidated, accrued, absolute, contingent, or otherwise, and there
is no basis for any claim against Seller for any such liability except
(a) to the extent set forth in the Financial Statements, or (b) to the
extent set forth on Schedule B. ----------
3.4 TAXES. Except as set forth on Schedule B, all tax and
information ---------- returns required to be filed by Seller on or
prior to the Closing Date with respect to taxes imposed on or assessed
to Seller have been or will be timely filed. All amounts shown on each
of such returns have been paid or will be paid when due. Any taxes
which are to be assumed by Buyer in respect of the Purchased Assets
which at the Closing Date are not yet due and owing will be adequately
reflected on Schedule B. There are no grounds for the assertion or
assessment of -------- - any taxes against Seller, the Purchased
Assets or the Business other than those reflected or reserved against
on the Financial Statements or Schedule B hereto. ---------- Neither
the Purchased Assets nor the Business are encumbered by any liens
arising out of any unpaid taxes and there are no grounds for the
assertion or assessment of any liens against the Purchased Assets or
the Business in respect of any taxes (other than liens for taxes if
payment thereof is not yet required, and which are set forth on
Schedule B hereto). The transactions contemplated by ---------- this
Agreement will not give rise to (i) the creation of any liens against
the Purchased Assets or the Business in respect of any taxes or (ii)
the assertion of any additional taxes against the Purchased Assets or
the Business. There is no action or proceeding or unresolved claim for
assessment or collection, pending or threatened, by, or present or
expected dispute with, any government authority for assessment or
collection from Seller of any taxes of any nature affecting the
Purchased Assets or the Business There is no extension or waiver of
the period for assertion of any taxes against Seller affecting the
Purchased Assets or the Business. None of the Purchased Assets are
subject to a tax indemnification agreement.
3.5 PERSONAL PROPERTY - OWNED. Except as set forth on Schedule A
---------- hereto, Seller has good and marketable title to all
personal property included in the Purchased Assets, including in each
case all personal property reflected in the Financial Statements or
acquired after the date thereof (except any personal property
subsequently sold in the ordinary course of the Business), free and
clear of all liens, claims and encumbrances and there exists no
restriction on the use or transfer of such property.
3.6 REAL AND PERSONAL PROPERTY - LEASED TO SELLER. Set forth on
Schedule G hereto is a copy of each lease under which Seller is the
lessee of --- any real property in connection with the Business, and
on Schedule G hereto is a ---------- description of each lease under
which Seller is the lessee of any personal property in connection with
the Business. Seller has delivered to Buyer a true, correct and
complete copy of each lease identified on Schedule G. The premises
---------- or property described in said leases are presently occupied
or used by Seller as lessee under the terms of such leases. Except as
set forth on Schedule U, all ---------- rentals due under such leases
have been paid and there exists no default under the terms of any such
leases and no event has occurred which, upon passage of time or the
giving of notice, or both, would result in any event of default or
prevent Seller from exercising and obtaining the benefits of any
rights or options contained therein. Seller has all right, title and
interest of the lessee under the terms of said leases, free of all
liens and all such leases are valid and in fill force and effect.
Except as set forth on Schedule 0, no ---------- consent is necessary
for the assignment to Buyer of such leases under which Seller is
lessee, Upon the Closing, Buyer will have all right, title and
interest of the lessee under the terms of such leases, free of all
liens. There is no default or basis for acceleration or termination
under, nor has any event occurred nor does any condition exist which,
with the passage of time or the giving of notice, or both, would
constitute a default or basis for acceleration under any underlying
lease, agreement, mortgage or deed of trust which default or basis for
acceleration would adversely affect any lease described on Schedules U
or the property or use of the property covered by such lease. ---
Subject to any consent required of a lessor as set forth on Schedule
U, there ---------- will be no default or basis for acceleration under
any such underlying lease, agreement, mortgage or deed of trust as a
result of the transactions provided for in this Agreement.
3.7 INTELLECTUAL PROPERTY.
(a) Schedule H contains a true, complete and accurate list of all
---------- Seller's Intellectual Property.
3.8 NECESSARY PROPERTY AND TRANSFER OF PURCHASED ASSETS. The
Purchased Assets constitute all of Seller's property and property
rights now used, useful or necessary for the conduct of the Business
in the manner and to the extent presently conducted and planned by
Seller. No such assets or property are in the possession of others and
Seller holds no property on consignment. No consent is necessary to,
and there exists no restriction on, the transfer of any of the
Purchased Assets. There exists no condition, restriction or
reservation affecting the title to or utility of the Purchased Assets
or Assumed Liabilities which would prevent Buyer from occupying or
utilizing the Purchased Assets or enforcing the rights under the
Assumed Liabilities, or any part thereof to the same full extent that
Seller might continue to do so if the sale and transfer contemplated
hereby did not take place.
Upon the Closing, good and marketable title to the Purchased Assets
and the rights under the Assumed Liabilities shall be vested in Buyer free
and clear of all liens, claims and encumbrances.
3.9 USE AND CONDITION OF PROPERTY. Seller shall take all action
necessary to provide to Buyer the benefit of all manufacturer's
warranties and maintenance contracts covering equipment included in
the Purchased Assets, to the extent that such warranties exist and are
in the possession of the Seller. Seller has taken no action nor has
Seller failed to take any action that might nullify or release any
such manufacturer from any liabilities under such warranties or
maintenance contracts.
EXCEPT AS PROVIDED HEREIN, NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, IS MADE WITH RESPECT TO THE CONDITION OR FITNESS FOR A PURPOSE OR
PARTICULAR USE OF THE ASSETS INCLUDED IN THE PURCHASED ASSETS, IT BEING
UNDERSTOOD THAT SUCH ASSETS ARE ACQUIRED OR PURCHASED BY BUYER IN AN "AS
IS" CONDITION.
3.10 LICENSES AND PERMITS. Set forth on Schedule Ehereto is a
---------- description of each license or permit held or pending for the
Seller, which licenses or permits are required for the conduct of the
Business together with the name of the government agency or entity that
issues such license or permit. Such licenses and permits are valid and in
full force and effect or are pending, as indicated on Schedule E. Except as
noted on Schedule E, such licenses and ---------- ---------- permits are
freely transferable by Seller, and upon Closing, Buyer will have the right,
title and interest of the holder thereof.
3.11 CONTRACTS-DISCLOSURE. Set forth on Schedule Fis a list of
all ---------- contracts of Seller. Each contract is a valid and
binding obligation of the parties thereto, enforceable in accordance
with its terms, and in full force and effect. No party to any contract
is in breach or violation thereof or default thereunder. No event has
occurred which, through the passage of time or the giving of notice,
or both, would constitute, and neither the execution of this Agreement
nor the Closing do or will constitute or result in, a breach or
violation of or default under any contract, or would cause the
acceleration of any obligation of any party thereto or the creation of
a lien upon any Purchased Asset. Each such contract will be duly
assigned to Buyer on the Closing Date and upon such assignment, Buyer
will acquire all right, title and interest of Seller in and to such
contract and will be substituted for Seller under the terms of such
contract. Except as set forth on Schedule F, no consent is required
for ---------- such assignment.
3.12 NO BREACH OF LAW OR GOVERNING DOCUMENTS. Except as set forth
on Schedule E Seller has complied with and is not in default under or
in breach or -------- violation of any applicable law' of any
government body, or the provisions of any franchise or license, or in
default under or in breach or violation of any provision of its
articles or certificate of incorporation or its bylaws. Neither the
execution of this Agreement nor the Closing will constitute or result
in any such default, breach or violation. No government permits or
consents are necessary to effect the transactions contemplated hereby.
3.13 LITIGATION AND ARBITRATION. Except as set forth on Schedule
I ---------- hereto, there is no suit, claim, action or proceeding now
pending or, to the best knowledge of Seller, its officers and
directors, threatened before any court, grand jury, administrative or
regulatory body, government agency, arbitration or mediation panel or
similar body, nor are there any grounds therefore, to which Seller,
officers or directors is a party or which may result in any judgment,
order, decree, liability, award or other determination which will, or
could, individually or in the aggregate, result in a Material Adverse
Change. No such judgment, order, decree or award has been entered
against Seller nor has any such liability been incurred which has, or
could have, such effect. There is no claim, action or proceeding now
pending or threatened before any court, grand jury, administrative or
regulatory body, government agency, arbitration or mediation panel or
similar body which will, or could, prevent or hamper the consummation
of the transactions contemplated by this Agreement, Seller, its
officers and directors are not now nor have been threatened or subject
to, and there are no grounds for, any suit, claim, litigation,
proceeding (administrative, judicial, or in arbitration, mediation or
alternative dispute resolution), government or grand jury
investigation, or other action or order, writ, injunction, or decree
of any court or other Government relating to personal injury, death,
or property or economic damage arising from products of the Seller.
3.14 INDEBTEDNESS TO AND FROM OFFICERS, DIRECTORS AND OTHERS.
Except as set forth on Schedule B, (a) Seller is not indebted to any
shareholder, ---------- director, officer, employee or agent of Seller
except for amounts due as normal salaries, wages and bonuses and in
reimbursement of ordinary expenses on a current basis and (b) no
shareholder, director, officer, employee or agent of Seller is
indebted to Seller except for advancements for ordinary business
expenses in a normal amount.
3.15 LABOR AGREEMENTS AND EMPLOYMENT AGREEMENTS. Except as set
forth on Schedule F, Seller is not a party to (a) any union collective
bargaining, works ---------- council, or similar agreement or
arrangement, or (b) any written or oral employment agreement. True,
correct and complete copies of all documents creating or evidencing
any agreement or arrangement listed on Schedule F have ---------- been
delivered to Buyer. Seller is in compliance in all material respects
with all laws respecting employment conditions and practices, has
withheld and paid all amounts required by applicable law to be
withheld from the wages and salaries of its employees, and is not
liable for any arrears of wages or any taxes (other than wages and
taxes that have not become due or payable) or penalties for failure to
comply with any of the foregoing,
3.16 EMPLOYEE BENEFIT PLANS. Except as set forth on Schedule I, Seller
has ---------- no pension, thrift, savings, profit sharing, retirement,
incentive bonus or other bonus, medical, dental, life, accident insurance,
benefit, employee welfare, disability, group insurance, stock appreciation,
stock option, executive or deferred compensation, hospitalization or other
similar fringe or employee benefit plans, programs or arrangements. Each
such employee plan or agreement has been furnished to Buyer. Seller is in
compliance with all provisions of the Employee Retirement Security Act of
1934, as amended ("ERJSA"). Buyer is not required under ERJSA or the
Internal Revenue Code of 1986, as amended (the "Code") to establish,
maintain or continue any employee plan agreement maintained by Seller. The
consummation of the transactions contemplated by this Agreement will not
(A) entitle any current or former employee of Seller to severance pay,
unemployment compensation or any other payment, (B) accelerate the time of
payment or vesting, or increase the amount of compensation due to any such
employee or former employee, (C) result in any prohibited transaction
described in Section 406 of ERISA or Section 4975 of the Code for which an
exemption is not available, or (D) give rise to the payment of any amount
that would not be deductible pursuant to the terms of Section 280G of the
Code.
3.17 INSURANCE POLICIES. Set forth on Schedule A hereto is a list
of ---------- all insurance policies and bonds in force covering or
relating to the Purchased Assets or the Business. Policies thereon
described evidence insurance in such amounts and against such risks
and losses as are generally maintained with respect to comparable
businesses and properties.
3.18 BROKER'S FEES. Seller has not retained any broker, finder or
agent or agreed to pay any broker's fees, finder's fees or commissions with
respect to the transactions contemplated by this Agreement.
3.19 BOOKS AND RECORDS. The books of account, stock record books
and minute books and other corporate records of Seller are in all
material respects complete and correct, have been maintained in
accordance with good business practices and the matters contained
therein are accurately reflected on the Financial Statements. The
minute books and stock books of Seller have been made available to
Buyer and are correct and complete to the date hereof
3.20 DISCLOSURE. No representation or warranty of Seller herein
and no statement, information or certificate furnished or to be
furnished by or on behalf of Seller pursuant hereto or in connection
with the transactions contemplated hereby contains or will contain any
untrue statement of a material fact or omits or will omit to state a
material fact necessary in order to make the statements contained
herein or therein not misleading.
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties
each of which is true and correct on the date hereof and each of which
shall be true and correct on the Closing Date and shall survive the
Closing Date and the sale contemplated hereby,
4.1 CORPORATE EXISTENCE OF BUYER. Buyer is a corporation
duly organized, validly existing and in good standing under the
laws of the State of New York. Buyer has the corporate power and
authority to own and use its properties and to transact the
business in which it is engaged. As of the date hereof, "TTI" is
qualified to do business in New York. "TTI" does not own any
shares of capital stock or other interest in any corporation,
partnership, association or other entity.
4.2 APPROVAL OF AGREEMENT. THE EXECUTION AND delivery of this
Agreement and the consummation of the transactions contemplated hereby
have been duly authorized, approved and ratified by all necessary
action on the part of Buyer. Copies of all required resolutions,
authorizations, consents, approvals and/or ratifications have been
provided to Seller and no such resolution, authorization, consent or
approval has been altered, amended, rescinded, repealed or revoked.
Buyer has full authority to enter into and deliver this Agreement, to
perform its obligations hereunder, and to consummate the transactions
contemplated hereby. Assuming the due execution and delivery hereof by
Seller, this Agreement is the legal, valid and binding obligation of
Buyer, enforceable against Buyer in accordance with its terms,
4.3 NO BREACH OF ARTICLES OR INDENTURES. The execution of this
Agreement and the consummation of the transactions contemplated hereby
has not and will not constitute or result in the breach of any of the
provisions of, or constitute a default under, the operating agreement
of Buyer, or any material indenture, evidence of indebtedness or other
commitment to which Buyer is a party or by which it is bound, which
breach of default would have a material adverse effect on the
consummation of the transactions contemplated by this Agreement.
4.4 BROKER'S FEES. Buyer has not retained any broker, finder or agent
or agreed to pay any broker's fees, finder's fees or commissions with
respect to the transactions contemplated by this Agreement.
4.5 CAPITALIZATION. The number of authorized, issued and
outstanding shares of Company Stock as of the date hereof is
200,000,000. The number of Shares issued and outstanding
following the issuance and cancellations outlined in Paragraph
2.3 shall be:
An aggregate of 4,000,000 Common Shares issued. No Preferred Shares
have been issued to date.
4.6 FINANCIAL STATEMENTS. The Financial Documents
contain the (i) audited balance sheets of "TTI" as of
December 30 , 2004, and December 30, 2005 (including the
notes thereto), and the related statements of operations,
cash flows and shareholders' equity (deficit) for each of
the years then ended, and The "TTI" Financial Statements
fairly present the financial condition and the results of
operations, changes in stockholders' equity and cash flows
of "TTI" at the respective dates of and for the periods
referred to in the "TTI" Financial Statements, which were
prepared in conformity with GAAP, consistently applied.
FINANCIAL STATEMENT COMPLIANCE. "TTI"s Financial Statements have been
prepared in accordance with Regulation S-X or S-B, as applicable, adopted
under the 1934 Act, for the periods specified.
ARTICLE V. CLOSING
5.1 DELIVERIES BY SELLER. On the Closing Date, Seller shall
deliver or cause to be delivered the following to Buyer:
(a) Xxxx of Sale. Seller shall deliver a Xxxx of Sale in form and
------- ---- substance as attached hereto as Schedule K, and any other
necessary or ---------- appropriate documents conveying to Buyer good
and marketable title to the Purchased Assets; and
(b) Assignment and Assumption Agreement. Seller shall deliver an
------------------------------------ Assignment and Assumption
Agreement in form and substance as attached hereto as Schedule L, with
related consents, if any are so required. ----------
5.2 DELIVERIES BY BUYER ON THE Closing Date, Buyer shall deliver,
or cause to be delivered to Seller:
(a) Payment of Purchase Price. Seller shall receive from Buyer
the ---------- -------------- Purchase Price and the Assignment and
Assumption Agreement, duly executed by Buyer.
(b) Member's Interest. One or more certificates representing the
----------------- Member's Interests described in Section 2.3(c).
(c) Employment Contract. Buyer shall have executed separate
employment -------------------- agreements with [IF APPLICABLE] in
form and substance as set forth in Schedule M ----------
ARTICLE VI. INDEMNIFICATION
6.1 INDEMNIFICATION OF BUYER. Seller hereby agrees to indemnify
and hold Buyer, its shareholders, directors, officers, employees,
Affiliates, successors, assigns and agents of each of them
(collectively, the "Indemnified Parties") harmless from, against and
in respect of, and waives any claim for contribution or indemnity with
respect to, any and all claims, losses, damages, liabilities, expenses
or costs ("Losses"), plus reasonable attorneys' fees and expenses
incurred in connection with Losses and/or enforcement of this
Agreement, plus interest from the date incurred through the date of
payment at the prime lending rate as published in the Wall Street
Journal from time to time prevailing (in all, "Indemnified Losses")
incurred or to be incurred by any of them (a) to the extent resulting
from or arising out of, or alleged to result from or arise out of, any
breach or violation of the representations, warranties, covenants or
agreements of Seller contained in this Agreement, or in any exhibit,
statement, schedule, certificate, instrument or document delivered
pursuant hereto, including provisions of this Article VII, and (b) to
the extent resulting from or arising out of, or alleged to result from
or arise out of, any liability or obligation of Seller not expressly
assumed by Buyer hereunder.
6.2 INDEMNIFICATION OF SELLER. Buyer hereby agrees to indemnify
and hold Seller, its shareholders, directors, officers, employees,
Affiliates, successors, assigns and agents of each of them
(collectively, the "Indemnified Parties") harmless from, against and
in respect of, and waives any claim for contribution or indemnity with
respect to, any and all claims, losses, damages, liabilities, expenses
or costs ("Losses"), plus reasonable attorneys' fees and expenses
incurred in connection with Losses and/or enforcement of this
Agreement, plus interest from the date incurred through the date of
payment at the prime lending rate as published in the Wall Street
Journal from time to time prevailing (in all, "Indemnified Losses")
incurred or to be incurred by any of them to the extent resulting from
or arising out of, or alleged to result from or arise out of, any
breach or violation of the representations, warranties, covenants or
agreements of Buyer contained in this Agreement, or in any exhibit,
statement, schedule, certificate, instrument or document delivered
pursuant hereto.
6.3 PARTICIPATION IN LITIGATION. In the event any suit or other
proceeding is initiated against an Indemnified Party with respect to which
Buyer alleges Seller is or may be obligated to indemnify an Indemnified
Party hereunder, Seller shall be entitled to participate in such suit or
proceeding, at its expense and by counsel of its choosing, provided that
(a) such counsel is reasonably satisfactory to Buyer, and (b) Buyer shall
retain primary control over such suit or proceeding. Such counsel shall be
afforded access to all information pertinent to the suit or proceeding in
question. Buyer shall not settle or otherwise compromise any such suit or
proceeding without the prior consent of Seller, which consent shall not be
unreasonably withheld, if the effect of such settlement or compromise would
be to impose liability on Seller, hereunder.
6.4 CLAIMS PROCEDURE. In the event from time to time Buyer
believes that it or any other Indemnified Party has or will suffer any
Losses for which Seller is obligated to indemnify it hereunder, it
shall promptly notify Seller in writing of the matter, specifying
therein the reason why Buyer believes that Seller is or will be
obligated to indemnify, the amount, if liquidated, to be indemnified,
and the basis on which Buyer has calculated such amount; if not yet
liquidated, the notice shall so state; provided, however, that the
right of a person to be indemnified hereunder shall not be adversely
affected by a failure to give such notice unless, and then only to the
extent that, an Indemnifying Party is prejudiced thereby. Seller shall
pay any amount to be indemnified hereunder not more than five days
after receipt of notice from Buyer of the liquidated amount to be
indemnified.
ARTICLE VII. DISPUTE RESOLUTION
7.1 SCOPE; INITIATION. Resolution of any and all disputes arising
from or in connection with this Agreement, whether based on contract,
tort, statute or otherwise, including, disputes over arbitrability or
disputes in connection with claims by third persons ("Disputes") shall
be exclusively governed by and settled in accordance with the
provisions of this Article VII provided, that the foregoing shall not
preclude equitable or other judicial relief to enforce the provisions
hereof or to preserve the status quo pending resolution of Disputes
hereunder; and provided further that resolution of Disputes with
respect to claims by third persons shall be deferred until any
judicial proceedings with respect thereto are concluded. Either Party
to this Agreement may commence proceedings hereunder by delivery of
written notice providing a reasonable description of the Dispute to
the other, including a reference to this Article VII (the "Dispute
Notice").
7.2 ARBITRATION. Arbitration shall be the sole and exclusive
remedy for any dispute, claim, or controversy of any kind or nature
arising out of, related to, or connected with this Agreement and the
arbitration shall be governed by and conducted in accordance with the
Arbitration Agreement attached hereto and incorporated herein by
reference as Schedule N. ----------
ARTICLE VLLL 8.3 OFFICERS & BOARD OF DIRECTORS:
As of the date of this agreement, the Officers & Directors shall be:
OFFICERS & DIRECTORS:
CHAIRMAN & CEO & TREASURER - XXX XXXXXX, XXXX
XXXXXX SECRETARY, DIRECTOR XXXXXX XXXXX, DIRCTOR
RESIGNING OFFICERS AND DIRECTORS
XXXXX XXXXXXXX XXXXX XXXXXXXX
ARTICLE VLX. MISCELLANEOUS
9.1 ASSIGNMENT; BINDING AGREEMENT. Neither this Agreement nor any
of Buyer's or Sellers rights or obligations hereunder may be assigned
without the other Party's prior written consent. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto
and to their respective successors and permitted assigns Nothing in
this Agreement, express or implied, is intended to confer upon any
person other than the Parties and their respective successors and
permitted assigns, any tights, remedies or obligations under or by
reason of this Agreement.
9.2 NON-DISCLOSURE OF INFORMATION. Seller expressly covenants and
agrees that it will not at any time, directly or indirectly, on any
basis for any reason, use or permit third parties within their control
or authority or under their supervision to use any trade secrets,
confidential information or proprietary information of, or relating
to, the Business ("Confidential Information"), other than in
furtherance of the Business Confidential Information shall include,
without limitation, data and other information relating to any of such
party's processes, apparatus, products, software, packages, programs,
trends in research, product development techniques or plans, research
and development programs and plans or any works and all secrets,
customer lists lists of haulers and carters, lists of employees, sales
representatives and their territories, mailing lists, details of
consultant contracts, pricing policies, operational methods, marketing
plans or strategies, business acquisition plans, new personnel
acquisition plans, designs and design projects and other confidential
business affairs concerning the Buyer and the Buyer's business~
Seller, Buyer or any Affiliate of Seller or Buyer, whether for its own
account or otherwise, and will not divulge such Confidential
Information to any Person other than in furtherance of this Business.
Seller shall not be prohibited from divulging information deemed to be
a trade secret or confidential or proprietary information of the
Business; (i) if the specific item of information becomes generally
available to the public without violation of this Agreement or any
other confidentiality agreement among or between Buyer and Seller, or
(ii) if such disclosure is compelled by law, in which event Seller
agrees to give Buyer prior written notice of any disclosure to be made
pursuant to this subsection (ii), and Seller, at Buyer's expense,
shall cooperate fully with Buyer to obtain protective orders,
confidential treatment or other such protective action as may be
available to preserve the confidentiality of the information required
to be disclosed.
9.3 REMEDIES. Nothing contained herein is intended to or shall be
construed to limit the remedies which either party may have against
the other in the event of a breach of or default under this Agreement,
it being intended that any remedies shall be cumulative and not
exclusive.
9.4 ENTIRE AGREEMENT, MODIFICATION AND WAIVER. This Agreement,
including the Schedules attached hereto and the documents delivered
pursuant hereto, constitutes the entire agreement between the parties.
No changes of, modifications of, or additions to this Agreement shall
be valid unless the same shall be in writing and signed by all parties
hereto. No action taken pursuant to this Agreement, including any
investigation by or on behalf of any Party, shall be deemed to
constitute a waiver by the Party taking the action of compliance by
the other Party with any representation, warranty, covenant or
agreement contained herein or in any document delivered pursuant
hereto. The waiver by any party hereto of any condition or of a breach
of another provision hereof shall not operate or be construed as a
waiver of any other condition or subsequent breach. The waiver by any
party of any of the conditions precedent to its obligations under this
Agreement shall not preclude it for seeking redress for breach of this
Agreement other than with respect to the condition so waived.
9.5 SEVERABILITY. If any provision of this Agreement shall be
determined to be contrary to law and unenforceable by any court of
law, the remaining provisions shall be severable and enforceable in
accordance with their terms,
9.6 COUNTERPARTS. This Agreement may be executed in one or more
identical counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same instrument.
9.7 HEADINGS INTERPRETATION. The table of contents and article
and section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or
interpretation of the Agreement. Both parties have participated
substantially in the negotiation and drafting of this Agreement and
each party hereby disclaims any defense or assertion in any litigation
or arbitration that any ambiguity herein should be construed against
the draftsman.
9.8 GOVERNING LAW. This Agreement shall be construed and
interpreted according to the Laws of the State of New York, without
regard to its principles of conflicts of laws. Any proceeding brought
by the parties to this Agreement shall be brought in the Courts of the
State of New York.
9.9 PAYMENT OF TAXES, FEES AND EXPENSES. Each party hereto shall
pay all fees and expenses of such party's respective counsel,
accountants and other experts and all other expenses incurred by such
party incident to the negotiation, preparation and execution of this
Agreement and the consummation of the transaction contemplated hereby,
including any finder's or brokerage fees. Seller shall be solely
liable for any and all taxes imposed on Seller as a result of the
transactions or otherwise arising from this Agreement.
9.10 NOTICES. Any notice, demand or communication required,
permitted or desired to be given hereunder shall be in writing and
shall be deemed effectively given when personally delivered, delivered
by facsimile or other electronic means (including telecopy and telex)
or overnight courier, or five (5) days after being deposited in the
United States mail, postage prepaid, certified or registered, return
receipt required. All notices shall be addressed as follows:
If to Buyer: If to Seller:
Tribeka Tek, Inc. NYN International LLC. 1510 51 St. 0000
Xxxxx Xxxx., Xxxxxxxx, XX 00000 Xxxxxxx, Xx. 00000.
Any such notice shall be effective upon: (i) receipt if delivered by
facsimile transmission or overnight or other courier service, or (ii) if
mailed, five (5) days after deposit with the U.S. Postal Service or the
date of delivery as shown on the return receipt therefore. Either Party may
change the address to which notices are to be addressed by giving the other
Party notice in the manner herein set forth.
9.11 FURTHER ACTS. Buyer and Seller shall, without further
consideration, execute and deliver such further instruments and
documents and do such other acts and things as the other may
reasonably request in order to confirm the transactions contemplated
by this Agreement. Without limiting the foregoing, Seller shall
deliver to Buyer any and all checks, drafts or other forms of payment
received in respect of any of the Accounts Receivable acquired by
Buyer pursuant to the terms of this Agreement and any of the Accounts
Receivable subsequent to the Closing Date derived from the operations
of the Business after the Effective Time.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement, as of the day and year first above written.
BUYER:
TRIBEKA TEK, INC.
By-/s/ Xxxxx Xxxxxxxx, President
SELLER: NYN International LLC.
By-_ /s/ Xxx Xxxxxx, President
TABLE OF SCHEDULES
SCHEDULE A Purchased Assets, Purchased Assets - Required Consents,
Personal Property Owned, Excluded Assets, Insurance Policies.
1. Assignment of Provisional Patent Docket # NYN002 2. Assignment of
Reciprocal Enhanced Services International Agreement with Novolink
Management LLC. 3. Assignment of Agreement with Kanaga Network Solutions 4.
Assignment of Agreement with Platin
SCHEDULE B Assumed Liabilities, Assumed Liabilities - Required
Consents, Undisclosed Liabilities, Taxes Owing, Outstanding Liens,
Indebtedness to and from Officers, Directors and Others
NONE
SCHEDULE C Intentionally Blank
SCHEDULE D Intentionally Blank
SCHEDULE E Licenses and Permits, Required Consents
SCHEDULE F Contracts, Contracts - Required Consents, Employment
Agreements 1. Assignment of Reciprocal Enhanced Services International
Agreement with Novolink Management LLC. 2. Assignment of Agreement with
Kanaga Network Solutions 3 Assignment of Agreement with Platin
SCHEDULE G Rental Due, Leases Subject to Consent for Assignment t to
Buyer
SCHEDULE H Intellectual Property
1. Assignment of Provisional Patent Docket # NYN002
SCHEDULE I Pending Litigation and Arbitration
SCHEDULE J Employee Benefit Plans NONE
SCHEDULE K Xxxx of Sale
SCHEDULE L Assignment and Assumption Agreement
SCHEDULE M Employment Agreements NONE
SCHEDULE N Arbitration Agreement
XXXX OF SALE & ASSIGNMENT AND ASSUMPTION AGREEMENT
This Xxxx of Sale and Assignment and Assumption Agreement (this
"Assignment and Assumption") is made as of January 18, 2006 between NYN
International LLC ("Seller/ Transferor"), and the Buyer, Tribeka Tek, Inc.
This Assignment and Assumption Agreement is entered into pursuant to,
and is subject to, the Asset Purchase Agreement dated as of January 18,
2006 by and between Seller and Purchaser (the "Agreement").
This Assignment and Assumption Agreement shall have the meanings given
to such terms in the Asset Purchase Agreement. In consideration of the
foregoing premises, all of the Assets and described in Schedule A-N of the
Asset Purchase Agreement and sufficiency of which are hereby acknowledged,
Seller does hereby sell, Sell , assign and convey unto Buyer, its
successors and assigns, all of the Assets, and Buyer does not assume any
liabilities. No provisions set forth in this Assignment and Assumption
shall be deemed to enlarge, alter or amend the terms and provisions of the
Asset Purchase Agreement. In the event of any conflict between the
provisions of this Assignment and Assumption and the provisions of the
Asset Purchase Agreement, the Asset Purchase Agreement shall control.
This Assignment and Assumption is made solely for the benefit of
Seller and Purchaser and no third party shall have any right to enforce its
terms or to rely on it. This instrument and the rights of the parties under
it shall be governed by and construed in accordance with laws of the State
of New York without regard to its conflicts of laws rules.
This Assignment and Assumption may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Assignment and
Assumption effective as of the date first written above.
SIGNATURE PAGES
SELLER
NYN INTERNATIONAL LLC
XXX XXXXXX, /s/ PRESIDENT
BUYER
TRIBEKA TEK, INC.
XXXXX SCHWARTZ_/s/PRESIDENT
ARBITRATION AGREEMENT
THIS AGREEMENT ("Arbitration Agreement") between the parties that are
signatory to an Asset Purchase Agreement , a copy of which is/are attached
hereto as Exhibit A (each individually referred to herein as a "party" or
collectively referred to herein as the "parties").
WITNESSETH
A. WHEREAS, the parties have entered into certain written agreements
in connection with a transaction where Tribeka Tek, Inc. is purchasing all
of the assets and intellectual properties of VGTel from NYN International
LLC.
B. WHEREAS, the parties wish to provide arbitration as the sole remedy
for resolution of any dispute, claim or controversy of any kind or nature
arising out of or relating to the breach, termination, or validity of such
written agreements, except as specified herein:
NOW THEREFORE, in consideration of the foregoing recitals, the mutual
covenants contained herein, and other good and valuable consideration,
receipt and sufficiency of which is hereby acknowledged, the parties agree
as follows:
1. Exclusive Remedy.
Arbitration shall be the sole and exclusive remedy for any dispute,
claim or controversy of any kind or nature (a "Claim") arising out of or
relating to the breach, termination or validity of any the agreements (the
"Agreements") entered into by the parties hereto and identified in the
attached Exhibit A
2. Claims not Subject to Arbitration.
This Agreement does not apply to (a) any legal action by the parties
seeking injunctive relief for breach or enforcement of any provision in any
of the Agreements which would cause the complaining party or parties
irreparable harm and for which there is no adequate remedy at law and (b)
any agreement, provision or undertaking that provides it is not subject to
arbitration.
3. Procedure.
Any Claim submitted to arbitration shall be decided by a single
neutral arbitrator (the "Arbitrator"). The parties to the arbitration shall
mutually select the Arbitrator not later than forty-five (45) days after
service of the demand for arbitration. If the parties for any reason do not
mutually select the Arbitrator within the forty-five (45) day period, then
any party may apply to a court of competent jurisdiction as noted in
paragraph 4 below, to appoint a retired judge as the Arbitrator. The
parties agree that arbitration shall be conducted in accordance with the
commercial arbitration rules then in effect of the American Arbitration
Association.
The Arbitrator shall apply the substantive federal, state, or local
laws of the County and City of New York, Borough of Manhattan and of the
United States District Court for the Southern District of New York,
applicable to any Claim submitted to arbitration. In ruling on any such
Claim, the Arbitrator shall have the authority to award only such remedies
or forms of relief as are provided for under the substantive law governing
such Claim, but in any event, the Arbitrator shall not award any punitive,
exemplary or consequential damages. The award entered by the Arbitrator
shall be final and binding on all parties participating in the arbitration.
4. Consent to Jurisdiction
The parties consent to the jurisdiction of the Supreme Court of the
State, County and city of New York, Borough of Manhattan and of the United
States District Court of the Southern District of the Sate of New York for
the arbitration proceedings and to enforce the judgment of the award in
such arbitration proceedings, but not otherwise. The parties may bring an
action in any such court to compel arbitration in accordance with the terms
of this Arbitration Agreement.
5. Costs
Any fees and costs incurred in the arbitration will be shared equally
by the parties participating in the arbitration, except that the Arbitrator
may reallocate such fees among such parties if the Arbitrator determines
that an equal allocation would impose an unreasonable financial burden on
any one or more parties.
The parties shall be responsible for their own attorneys' fees and
costs, except that the Arbitrator shall have the authority to award
attorneys' fees and costs to the prevailing party iii accordance with the
applicable law governing the dispute.
6. Interpretation.
The Arbitrator, and not any federal or state court, shall have the
exclusive authority to resolve any issue relating to the interpretation,
formation or enforceability of this Agreement, or any issue relating to
whether a Claim is subject to arbitration under this Arbitration Agreement
IN WITNESS WHEREOF, this Agreement has been entered into by the
parties as of January18, 2006.
BUYER: SELLER:
Tribeka Tek, Inc. NYN International LLC
_ By /s/ Xxxxx Xxxxxxxx, President By /s/ By Xxx Xxxxxx, President
