ASSET PURCHASE
AGREEMENT
AGREEMENT,
dated as of November 22, 2006 between G-3 Global Investments,
Inc., a Texas Corporation ("Seller"), and TXP Corporation, a
Nevada corporation with offices at 1299 Commerce Drive, Richardson,
TX 75082 (the "Purchaser").
RECITALS
A. Seller is
the owner of certain assets relating to the SMT
JUKI line of equipment, as set forth in Exhibit A to that
certain Equipment Lease (the "Lease") dated as of May 1, 2005 by
and between G3 Global Investments Inc., and Texas Prototypes, Inc.
, a wholly owned subsidiary of TXP Corporation. A copy of
such Lease is annexed hereto as Exhibit A.
B. Purchaser
desires to acquire the assets from Seller.
Seller desires
to sell the same to Purchaser.
D. It is
intended that the sale of the Assets shall qualify for United
States federal income tax purposes as a tax free transfer of
property within the meaning of Section 351 of the Internal Revenue
Code of 1986, as amended (the “Code”).
NOW, THEREFORE,
in consideration of the mutual representations, warranties,
covenants and agreements herein set forth, the parties hereto
hereby agree as follows:
1. Sale of
Assets. Subject to the terms and conditions of this Agreement, at
the closing under this Agreement (the "Closing"), Seller shall
sell, convey, assign, transfer and deliver to Purchaser, and
Purchaser shall purchase, acquire and accept from Seller all right,
title, and interest in and to the following assets (the
"Assets"):
SMT production line equipment
It is expressly
understood that Purchaser shall not assume, pay or be liable for
any liability or obligation of Seller of any kind or nature at any
time existing or asserted, whether, known, unknown, fixed,
contingent or otherwise, not specifically assumed herein by
Purchaser.
2. Purchase
Consideration. In consideration of the purchase and sale of the
Assets, Purchaser and Seller agree to terminate the Lease. In
addition, TXP Corporation agrees to pay to the Purchaser THREE
HUNDRED THOUSAND DOLLARS ($300,000.00) at the Closing (the
“Purchase Consideration”) for the Assets.
3.
Closing.
3.1 Place and
Time. The Closing shall take place at the offices of Sichenzia Ross
Friedman Ference LLP, 1065 Avenue of the Americas, 21st Floor, New
York, New York 10018, on November 22, 2006, or at such other time
or place as Purchaser and Seller may mutually agree as may be
evidenced by their effecting the Closing (the "Closing
Date").
3.2 Deliveries
by Seller. At the Closing, Seller shall deliver the following to
the Purchaser:
(a) All of the
tangible Assets including without limitation all books and records
related thereto and/or the rights to take possession
thereof.
(b) Such deeds,
bills of sale, assignments and other instruments of conveyance and
transfer, and such powers of attorney, as shall be effective to
vest in Purchaser title to or other interest in, and the right to
full custody and control of, the Assets, free and clear of all
liens, charges, encumbrances and security interests whatsoever
including, but not limited to, the Bill of Sale form annexed hereto
as Exhibit 3.2(b).
(c) All other
documents, certificates, instruments or writings reasonably
required by Purchaser to be delivered by Seller at or prior to the
Closing pursuant to this Agreement.
3.3 Deliveries
by Purchaser. At the Closing, Purchaser shall deliver the following
to the Seller:
(a) the
Purchase Consideration in the form of a check in the amount of
THREE HUNDRED THOUSAND DOLLARS ($300,000).
3.4
Proceedings. All proceedings which shall be taken and all documents
which shall be executed and delivered by the parties on the Closing
Date shall be deemed to have been taken and executed
simultaneously, and no proceeding shall be deemed taken nor any
documents executed or delivered until all have been taken, executed
and delivered.
3.5 Conditions
to Purchaser' Obligations. The obligations of Purchaser to effect
the Closing shall be subject to the satisfaction at or prior to the
Closing of the following conditions, any one or more of which may
be waived by Purchaser:
(a) There shall
not be in effect any injunction, order or decree of a court of
competent jurisdiction that prohibits or delays consummation of any
or all of the transactions contemplated in this Agreement nor shall
any proceeding seeking any of the foregoing have been
commenced.
(b) The
representations and warranties of Seller set forth in this
Agreement shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date as though
made at such time.
(c) Seller
shall have performed and complied in all material respects with the
agreements contained in this Agreement required to be performed and
complied with by it prior to or at the Closing.
3.6 Conditions
to Seller's Obligations. The obligations of Seller to effect the
Closing shall be subject to the satisfaction at or prior to the
Closing of the following conditions, any one or more of which may
be waived by Seller:
(a) There shall
not be in effect any injunction, order or decree of a court of
competent jurisdiction that prohibits or delays the consummation of
any or all of the transactions contemplated herein nor shall any
proceeding seeking any of the foregoing have been
commenced.
(b) The
representations and warranties of the Purchaser set forth in this
Agreement shall be true and correct in all material respects as of
the date of this Agreement and as of the Closing Date as though
made at such time.
(c) The
Purchaser shall have performed and complied in all material
respects with the agreements contained in this Agreement required
to be performed and complied with by it prior to or at the
Closing.
4.
Representations and Warranties of Seller. Seller hereby represents
and warrants to Purchaser as follows:
No
Conflicts.
(a) Seller has
the right, power, authority and capacity to execute and deliver
this Agreement and to perform its obligations under this
Agreement.
(b) Neither the
execution, delivery or performance of this Agreement by Seller nor
the consummation by Seller of the transactions contemplated hereby
will, directly or indirectly (with or without notice or lapse of
time or both):
(i) contravene, conflict with or result in a
violation or breach of (A) any legal requirement or any
governmental order to which Seller or any of the properties or
assets owned or used by Seller may be subject, or (B) any
authorization, license or permit of any governmental authority,
including any private investigatory license or other similar
license, which is held by Seller or that otherwise relates to the
business of, or any of the assets owned or used by
Seller;
(ii) result in a violation or breach of or
constitute a default, give rise to a right of termination,
cancellation or acceleration, create any entitlement to any payment
or benefit or require the consent or approval of or any notice to
or filing with any third party under any contract to which Seller
is a party or to which his or his properties or assets may be
bound, or require the consent or approval of or any notice to or
filing with any governmental authority to which the Seller or his
properties or assets may be subject; or
(iii) result in the imposition or creation of
any encumbrance upon or with respect to any of the properties or
assets owned or used by Seller.
4.2 No
Undisclosed Liabilities. Seller has no material liabilities or
obligations of any nature (whether absolute, accrued, contingent,
or otherwise) with respect to the Assets except for liabilities or
obligations which have previously been disclosed to Purchaser and
current liabilities incurred in the ordinary course of business,
which current liabilities are consistent with the representations
and warranties contained in this Agreement and will not,
individually or in the aggregate, have a material adverse change in
the business, operations, properties, prospects, liabilities,
results of operations, assets or condition (financial or otherwise)
of Seller.
4.3 Taxes. With
respect to the Assets, Seller has properly and timely filed all
federal, state and local Tax returns and has paid all Taxes,
assessments and penalties due and payable. All such Tax returns
were complete and correct in all respects as filed, and no claims
have been assessed with respect to such returns. There are no
present, pending, or threatened audit, investigations, assessments
or disputes as to Taxes of any nature payable by the Seller, nor
any Tax liens whether existing or inchoate on any of the assets of
the Seller, except for current year Taxes not presently due and
payable. The federal income Tax returns of the Seller have never
been audited. No IRS or foreign, state, county or local Tax audit
is currently in progress. The Seller has not waived the expiration
of the statute of limitations with respect to any Taxes. There are
no outstanding requests by the Seller for any extension of time
within which to file any Tax return or to pay Taxes shown to be due
on any Tax return. Other than with respect to the Seller, the
Seller is not liable for Taxes of any other person or entity or is
currently under any contractual obligation to indemnify any person
or entity with respect to Taxes or is a party to any Tax sharing
agreement or any other agreement providing for payments by the
Seller with respect to Taxes.
For purposes of
this Agreement, the term “Tax” shall mean any United
States federal, national, state, provincial, local or other
jurisdictional income, gross receipts, property, sales, use,
license, excise, franchise, employment, payroll, estimated,
alternative or add-on minimum, ad valorem, transfer or excise tax,
or any other tax, custom, duty, governmental fee or other like
assessment or charge imposed by any governmental authority,
together with any interest or penalty imposed thereon.
4.4 Compliance
with Law; Governmental Authorizations. To the best of
Seller’s knowledge, Seller is in compliance with all federal,
state and local laws, authorizations, licenses and permits of any
governmental authority and all governmental orders affecting the
properties and assets of Seller, including federal, state and
local: (i) Occupational Safety and Health Laws; (ii) private
investigatory and other similar laws; (iii) the Fair Credit
Reporting Act and similar state and local laws; and (iv) laws
regarding or relating to trespass or violation of privacy rights.
Seller has not been charged with violating, nor to the knowledge of
Seller, threatened with a charge of violating, nor, to the
knowledge of Seller, is Seller under investigation with respect to
a possible violation of any provision of any federal, state or
local law relating to any of, properties or assets.
4.7 Effect of
Agreement. This Agreement has been duly executed and delivered by
Seller and constitutes, and such other agreements and instruments
to be executed by Seller pursuant hereto, when so duly executed and
delivered, will constitute, legal, valid and binding obligations of
Seller, enforceable in accordance with their respective terms,
except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other
similar laws relating to or affecting the rights of creditors
generally and by general equity principles (regardless of whether
such enforcement is considered in a proceeding in equity or at
law).
4.8 Title to
Assets. After giving effect to the transactions contemplated by
this Agreement, Purchaser will have good and valid title to all of
the Assets, free and clear of all, liens, encumbrances,
restrictions, security interests, mortgages, and claims (including
any related to duty or customs), except with respect to any of the
foregoing which may be incurred by Purchaser.
4.9 Broker's
Fees. Seller has not employed any broker or finder or incurred any
liability for any broker's or finder's fees or commissions in
connection with this Agreement or the transactions contemplated
herein.
4.10
Intentionally Left Blank.
4.11
Disclosure. No representation or warranty by Seller in this
Agreement, nor in any certificate, schedule or exhibit delivered or
to be delivered pursuant to this Agreement contains or will contain
any untrue statement of material fact, or omits or will omit to
state a material fact necessary to make the statements herein or
therein, in light of the circumstances under which they were made,
not misleading.
4.13 Legal
Proceedings. There is no pending claim, action, investigation,
arbitration, litigation, suit or other proceeding
(“Proceeding”):
(a) that has
been commenced by or against the Seller or that otherwise relates
to or may affect the business of, or any of the properties or
assets owned, held or used by, the Seller; or
(
