Exhibit 10.48
EXECUTION
VERSION
AGREEMENT FOR THE PURCHASE AND
SALE OF ASSETS
By And Among
REGALE, INC.,
a North Carolina Corporation
VCG HOLDING CO.
a Colorado Corporation
and
RALEIGH RESTAURANT CONCEPTS,
INC.
a North Carolina Corporation
Dated: March 23,
2007
TABLE OF CONTENTS
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1.
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ASSETS BEING
ACQUIRED; LIABILITIES BEING ASSUMED.
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1
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2.
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PURCHASE PRICE
AND PAYMENT THEREOF.
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4
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3.
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ALLOCATION OF
PURCHASE PRICE.
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5
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4.
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TAXES.
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6
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5.
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REPRESENTATIONS
AND WARRANTIES OF SELLER.
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6
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6.
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REPRESENTATIONS
AND WARRANTIES OF BUYER GROUP.
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10
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7.
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CONDITIONS
PRECEDENT.
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12
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8.
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LEASE.
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14
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9.
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BULK
SALES.
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14
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10.
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TIME AND PLACE
OF CLOSING.
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15
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11.
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ITEMS TO BE
DELIVERED AT CLOSING.
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15
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12.
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OPERATION OF
BUSINESS BY SELLER.
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16
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13.
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NON-COMPETITION; NON-SOLICITATION.
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17
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14.
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CONFIDENTIALITY.
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17
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15.
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ADDITIONAL
DOCUMENTS AFTER CLOSING.
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18
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16.
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PAYMENT OF
EXPENSES; BROKERS.
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19
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17.
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LIABILITIES NOT
ASSUMED.
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20
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18.
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EMPLOYEES AND
EMPLOYEE BENEFITS.
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20
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19.
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SURVIVAL OF
REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
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21
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20.
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TERMINATION OF
AGREEMENT.
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23
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21.
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STOCK TRANSFER
RESTRICTIONS.
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23
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22.
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REGISTRATION
RIGHTS.
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24
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23.
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MISCELLANEOUS.
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24
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ii
EXHIBITS
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Exhibit A
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Bill of
Sale
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Exhibit
B
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Indemnification
Agreement
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Exhibit
C
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Sublease
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Exhibit
D
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Parking Lot
Lease
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iii
DISCLOSURE
SCHEDULES
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Schedule 1.2
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Certain
Excluded Assets
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Schedule
1.4
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Excluded
Liabilities
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Schedule
5.3
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Violations
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Schedule
5.4
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Rights to
Acquire Shares
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Schedule
5.5
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Leased
Assets
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Schedule
5.6
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Taxes
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Schedule
5.7
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Litigation
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Schedule
5.9
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Liabilities of
the Business
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iv
AGREEMENT FOR THE PURCHASE AND
SALE OF ASSETS
THIS AGREEMENT
(this “ Agreement
”) is made and entered into this 23rd day of March, 2007 (the
“ Agreement Date ”), by and among Regale, Inc.,
a North Carolina corporation (“ Seller ”), VCG
Holding Co., a Colorado corporation (“ Parent ”)
and Raleigh Restaurant Concepts, Inc., a North Carolina corporation
(“ Buyer ,” and together with Parent, “
Buyer Group ”).
WHEREAS , Seller wishes to sell substantially all of the
assets related to its Business (defined below) located at 3210
Yonkers Road, Raleigh, Wake County, North Carolina, as more fully
described in this Agreement; and
WHEREAS , Buyer wishes to purchase such assets from
Seller;
NOW THEREFORE
, in consideration of the mutual
promises, covenants and conditions hereinafter set forth, and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, it has been and is hereby agreed as
follows:
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1.
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ASSETS BEING
ACQUIRED; LIABILITIES BEING ASSUMED .
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1.1 At the closing (the “
Closing ”), and subject to the terms and conditions
hereinafter set forth (including Section 1.2, which lists
certain assets of Seller that Buyer is not purchasing), Seller
agrees to sell to Buyer and Buyer agrees to purchase from Seller
substantially all of Seller’s assets necessary to operate the
adult nightclub presently known as Thee Dollhouse, located at
3210 Yonkers Road, Raleigh, North Carolina 27604 (the “
Business ”), including: all fixtures and personal
property located on the Business premises; all food and beverage
supplies; all contracts and contract rights, except as specifically
excluded in this Agreement; all improvements on the premises; all
patents, software and software license agreements;
computers
and other equipment (whether owned or leased);
all licenses, including (to the extent transferable) all liquor
licenses and permits from the City of Raleigh, the County of Wake
or the State of North Carolina or any other relevant authorities
(the “ Governmental Authorities ”) necessary to
operate the Business (the “ Required Licenses
”); and any other asset of Seller that is not an Excluded
Asset (as defined in Section 1.2), free and clear of all
liens, security interests, and encumbrances, except as noted herein
(collectively, the “ Assets ”).
1.2 The Assets to be conveyed to
Buyer shall not include: the Agreement (licensing the use of a
trademark), dated as of June 15, 1992, between Seller and Thee
Dollhouse Productions N.C., Inc., a Florida corporation, and any
written or oral amendments thereto, or any other written or oral
understandings, agreements or arrangements under which the parties
to the Agreement currently operate, including without limitation
any right to use the trademark (collectively, the “
Production Contract ”); any motor vehicles owned or
leased by Seller or its affiliates; furniture and other personal
property not used in the Business (as set forth on Schedule
1.2 ); Seller’s rights under any real property lease with
respect to the Business premises; cash, cash equivalents and
short-term investments; any of Seller’s organizational
documents, minute books, stock records, corporate seals and other
corporate records; the shares of capital stock of Seller held in
treasury, if any; all insurance policies and rights thereunder,
including all claims, refunds, and credits from insurance policies
due or to become due with respect to such policies; all Tax credits
and claims for refund of Taxes or other governmental charges of
whatever nature pertaining to the Business or the Assets that are
attributable to the pre-Closing tax period; all rights relating to
deposits and prepaid expenses and claims for refunds and rights to
offset in respect thereof listed on Schedule 1.2 ; all
rights of Seller under this Agreement or the Bill of Sale,
including all rights to the Purchase Price consideration; and such
other assets of Seller that
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are set forth on Schedule 1.2
(collectively, the “ Excluded Assets ”). The
Assets to be acquired by Buyer under this Agreement will be
effected by delivery by Seller to Buyer Group at Closing of a duly
executed bill of sale in the form attached hereto as Exhibit
A (the “ Bill of Sale ”); and the leased
Assets to be assigned by Seller will be effected by delivery to
Buyer Group at Closing of duly executed instruments of assignments,
as needed.
1.3 To the extent permitted by the
applicable Governmental Authorities, Seller hereby consents to the
transfer of any of its Required Licenses to Buyer, subject in all
respects to the prior approvals of the applicable Governmental
Authorities. Buyer Group hereby agrees to use its best efforts to
obtain the Required Licenses as promptly as possible following the
Agreement Date.
1.4 On the Agreement Date, Buyer
Group will deliver to Seller an instrument of indemnification in
the form attached hereto as Exhibit B (the “
Indemnification Agreement ”), whereby Buyer Group
fully and unconditionally will indemnify, defend and hold Seller,
its affiliates and shareholders (including without limitation S.
Barry Sandman and Barry L. Green) and all of their respective
officers, directors, employees and agents, harmless from, any and
all claims, liabilities and obligations (including any reasonable
attorneys fees related thereto) of such parties, including without
limitation any and all claims, liabilities and obligations, whether
known or unknown, accrued or unaccrued, absolute or contingent as
set forth in the Indemnification Agreement. In the event the
Closing does not occur under this Agreement, the Indemnification
Agreement shall be deemed null and void, except as set forth in
Section 19.5 hereof or in the Indemnification Agreement.
Notwithstanding the foregoing, Buyer Group will assume all
liabilities and obligations of Seller and the Business
(i) that arise from and after the Effective Time and
(ii) that are not Excluded Liabilities (as defined below)
(collectively, the
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“ Assumed Liabilities ”).
Buyer Group will not undertake, assume or agree to fully or
partially perform, pay and discharge when due any debts,
liabilities and obligations (i) to the extent arising under
the Excluded Assets, (ii) that are expressly retained by
Seller as set forth on Schedule 1.4 , (iii) except as
set forth in the Indemnification Agreement, that arise, accrue or
are incurred by Seller prior to the Effective Time (as defined in
Section 10 below), or (iv) in connection with Taxes
accrued or incurred prior to Closing (as more fully described in
Section 4.1 of this Agreement) (collectively, the “
Excluded Liabilities ”). Seller is responsible for
performing, paying and discharging the Excluded
Liabilities.
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2.
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PURCHASE
PRICE AND PAYMENT THEREOF .
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The purchase price (the “
Purchase Price ”) to be paid by Buyer to Seller for
the Assets shall be a total of Ten Million Two Hundred Thousand
Dollars ($10,200,000) in cash and common stock of Parent. The
Purchase Price shall be payable as follows:
2.1 Cash in the amount of One
Hundred Thousand Dollars ($100,000) (the “ Earnest
Money ”), to be delivered on the Agreement Date. The
delivery of the Earnest Money shall be via wire transfer of
immediately available funds to an account designated in writing by
Seller prior to the Agreement Date, or alternatively such delivery
may be in the form of a cashier’s check, in either case on
the Agreement Date; provided, that the Earnest Money shall be
returned promptly (within five business days) upon written demand
of Buyer in the sole event that this Agreement is terminated
pursuant to Section 20(b) of this Agreement, provided that any
refund of Earnest Money in such event shall be returned to Buyer
net of Seller’s reasonable costs and expenses (including
reasonable attorney’s fees) incurred or accrued as of the
termination date.
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2.2 Cash in the amount of Ten
Million Dollars ($10,000,000), payable at Closing via wire transfer
of immediately available funds to an account or accounts designated
in writing by Seller prior to the date of Closing (the “
Closing Date ”), or alternatively such delivery may be
in the form of a cashier’s check, in either case at the
Closing.
2.3 One Hundred Thousand Dollars
($100,000) in shares of Parent common stock (the “
Shares ”), valued at the average per share closing
price of Parent common stock on the American Stock Exchange (traded
under the symbol: PTT) for the ten (10) trading day period
prior to the Agreement Date. The issuance of the Shares to Seller
at Closing will be subject to the provisions set forth in
Section 22 hereof.
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3.
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ALLOCATION
OF PURCHASE PRICE .
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The Purchase Price
provided for in Section 2 hereof shall be allocated to the
Assets as follows:
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A.
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All Furniture
Fixtures and Equipment
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$
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250,000
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B.
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Leasehold
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3,750,000
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C.
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Goodwill
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6,150,000
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D.
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Inventory
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50,000
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TOTAL
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$
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10,200,000
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After the Closing, the parties shall
make consistent use of the allocation specified above for all tax
purposes and in all filings, declarations and reports with the
Internal Revenue Service (“ IRS ”) in respect
thereof, including the reports required to be filed under
Section 1060 of the Internal Revenue Code of 1986 and the
rules and regulations promulgated thereunder, as amended (the
“ Code ”). Buyer Group shall prepare and deliver
IRS Form 8594 to Seller within forty-five (45) days after the
Closing Date to be filed with the IRS. In any proceeding related to
the determination of any Tax (as defined in Section 4.1),
neither Seller nor Buyer Group shall contend or represent that such
allocation is not a correct allocation.
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The parties agree as
follows:
4.1 Except as provided in
Section 4.2, Seller is responsible for paying any and all
taxes of the Business, including but not limited to, state and
local sales and use taxes, unemployment taxes, workmen’s
compensation, state and federal withholding taxes, and income taxes
(“ Taxes ”) which accrue up to the Effective
Time, but not thereafter. Seller hereby agrees to hold Buyer Group
harmless from any Taxes which may be due and owing by Seller and
not assumed by Buyer under this Agreement arising from any time
that Seller operated the Business, up to and including the
Effective Time, but not thereafter.
4.2 Buyer will pay when due any and
all Taxes which may become payable as a result of the transactions
contemplated by this Agreement, including all sales and use Taxes,
levies, fees and charges of any kind without contribution from
Seller.
4.3 Buyer shall be responsible for
any and all Taxes or charges of any nature relating to the Assets
and the operation of the Business which accrue after the Effective
Time. In addition, Buyer Group hereby agrees to hold Seller
harmless from any Taxes which may be due and owing by Buyer or
Parent.
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5.
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REPRESENTATIONS AND WARRANTIES OF
SELLER .
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As an inducement to Buyer Group to
enter into this Agreement, Seller represents and warrants to Buyer
Group as follows:
5.1 Organization and Good
Standing . Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of North
Carolina.
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5.2 Authority and
Enforceability . Seller has the corporate power to own its
properties and Assets, and to carry on its Business as now being
conducted by it with respect to the Assets. Seller has the
corporate power and authority to enter into and deliver this
Agreement and the other transaction documents contemplated hereby
to which it is a party, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby
and thereby, including assigning and transferring to Buyer at
Closing all of the Assets specified in this Agreement.
Seller’s execution, delivery and performance of this
Agreement and the other transaction documents contemplated hereby
to which it is a party and its consummation of the transactions
contemplated hereby and thereby have been duly and validly
authorized by all corporate action required of Seller by applicable
law or its Articles of Incorporation or By Laws.
5.3 No Violation . Except as
set forth on Schedule 5.3 , the execution and delivery of
this Agreement does not and the consummation of the transactions
contemplated hereby will not violate any material provision of the
documents controlling the operation of the Business, nor violate
any provision of Seller’s Articles of Incorporation or By
Laws, or any material mortgage, lease, lien, agreement, instrument,
order, judgment or decree to which Seller is a party, or whereby it
or the Business is bound, and, to the knowledge of Seller, will not
violate any other restriction of any other kind or character to
which Seller or the Business is subject. Seller has taken or will
take all action required by law, its Articles of Incorporation and
By Laws, or otherwise, to authorize execution and delivery of this
Agreement and the consummation of the transactions described
herein.
For purposes of this Agreement,
“knowledge of Seller” shall mean the actual knowledge
of S. Barry Sandman, without any further inquiry, and
“knowledge of Buyer Group” shall mean the actual
knowledge of the senior officers of Parent, without any further
inquiry.
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5.4 Rights to Acquire Shares
. Except as set forth on Schedule 5.4 , there are no
outstanding rights to acquire shares of Seller, which rights would
require the holders thereof to approve the execution of this
Agreement or the consummation of the transactions contemplated
hereby.
5.5 Title . Seller has, or
will have by the Closing Date, good and marketable title to own all
of the Assets, free and clear of all liens and encumbrances, and
Seller does not lease any of its property or Assets relating to the
Business, except as set forth on Schedule 5.5 .
5.6 Taxes . Seller has filed
or will cause to be filed all material returns for federal, state
and local Taxes that it was required to file on a timely basis.
Seller has paid, or made provisions for the payment of, all Taxes
shown as owing on Seller’s tax returns for the years ended
December 31, 2005 and 2004 (all of which have been made
available to Buyer Group) or any assessment received by Seller from
any taxing authority, except such Taxes, if any, listed on
Schedule 5.6 that are being contested in good faith and as
to which adequate reserves have been provided in the most recent
balance sheet of the Business. Except as set forth on Schedule
5.6 , Seller is not currently the beneficiary of any extension
of time within which to file any Tax return. To the knowledge of
Seller, there are no assessments or additional Taxes threatened
against Seller or any of its properties. Seller is not delinquent
in the payment of any Tax assessment or governmental charge, does
not have any Tax deficiencies imposed or assessed against it and
has not executed any waiver of the statute of limitations on the
assessment or collection of any Taxes, where such delinquency,
deficiency or waiver would have a material adverse affect on
Seller’s title to any of the Assets to be transferred to
Buyer at Closing.
5.7 Litigation . Except as
set forth on Schedule 5.7 , there are no actions, suits, or
proceedings pending, or to its knowledge, threatened against
Seller, the Business or any of its
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properties or Assets, in law or in equity, which
might result in any judgment, order, injunction or decree having a
material adverse affect upon the operations, properties, assets or
financial condition of the Business.
5.8 Condition of Assets . The
equipment and other tangible Assets of Seller used in the operation
of the Business are in good operating condition and repair in all
material respects.
5.9 Absence of Undisclosed
Liabilities . Except for: (a) liabilities and obligations
reflected in Seller’s tax returns made available to Buyer
Group; (b) liabilities and obligations reflected on
Schedule 5.9 ; (c) liabilities and obligations incurred
in the ordinary course of business since December 31, 2006;
(d) liabilities or obligations arising out of or under
material contracts of the Business; (e) liabilities or
obligations incurred in connection with this Agreement; and
(f) other liabilities or obligations which, individually or in
the aggregate, would not have a material adverse effect on
Business, Seller has no material liabilities or obligations of any
nature, whether direct, indirect, accrued, contingent or otherwise,
of the type required to be disclosed on a balance sheet prepared in
accordance with GAAP.
5.10 Employees and Independent
Contractors . There is no collective bargaining or similar
agreement with any labor unions or associations representing
employees of the Business. To the knowledge of Seller, since
January 1, 2006 there have been no claims of discrimination or
harassment that have been made against Seller, the Business or an
employee of the Business before a governmental or regulatory
authority regarding actions or omissions of a Business employee
during the course of his or her employment with Seller. To the
knowledge of Seller, at all times while engaged by the Business,
all independent contractors and consultants of the Business were
independent contractors to, and not employees of, Seller or the
Business for
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purposes of all applicable federal and state
laws relating to wages and hours, all applicable federal and state
income tax withholding requirements, and any other law implicating
the relationship between Seller or the Business and any independent
contractor or consultant.
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6.
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REPRESENTATIONS AND WARRANTIES OF BUYER
GROUP .
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As an inducement to Seller to enter
into this Agreement, Buyer Group represents and warrants to Seller
as follows:
6.1 Organization and Good
Standing . Parent is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Colorado. Buyer is a corporation duly organized, validly existing
and in good standing under the laws of the State of North
Carolina.
6.2 Authority and
Enforceability . Each of Parent and Buyer has the requisite
power to own its properties and to carry on its business as now
being conducted. Each of Parent and Buyer has all requisite power
and authority to enter into and deliver this Agreement and the
other transaction documents contemplated hereby to which it is a
party, to perform its obligations hereunder and thereunder and to
consummate the transactions contemplated hereby and thereby. Each
of Parent and Buyer’s execution, delivery and performance of
this Agreement and the other transaction documents contemplated
hereby to which it is a party and each party’s consummation
of the transactions contemplated hereby and thereby have
bee