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Exhibit 2.1
ASSET PURCHASE
AGREEMENT
This Asset Purchase Agreement ("Agreement") is made as of the
date last shown below by and between VPGI CORP., a Texas
corporation ("Purchaser"), and TRIDENT GROWTH FUND, LP, a Delaware
limited partnership ("Seller").
Seller desires to sell and Purchaser desires to purchase certain
assets of Seller on the terms and conditions set forth in this
Agreement.
In consideration of the mutual promises of the parties; in
reliance on the representations, warranties, covenants, and
conditions contained in this Agreement; and for other good and
valuable consideration, the parties agree as follows:
ARTICLE 1: SALE
1.01 Sale of Assets .
Seller agrees to sell, convey, transfer, assign, and deliver to
Purchaser, and Purchaser agrees to purchase or accept from Seller,
all of the following assets owned by Seller, which were acquired
from People Solutions, Inc., a Texas corporation, as of May 30,
2006 (the "Assets" or "Intellectual Property"):
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(a) all of Seller's worldwide right, title and interest in, to
and under the registered and unregistered domestic and foreign
copyrights and copyright applications, service marks, trademarks,
trade dress, trademark applications, and trade names, including
without limitation the copyright registrations and/or copyright
applications and/or copyright rights, service marks, trademarks,
service mark and trademark applications and trade names listed on
Exhibit "A" annexed hereto and incorporated herein by
reference;
(b) all formulae, know-how, patent rights, patent applications,
letters patents, trade secrets, inventions, models, processes,
computer software, object code, source code, computer operating
procedures, and all other proprietary rights used or useful or
developed for use in connection with the Assets;
(c) all applications for or registrations of any of the
foregoing items, promotional designs, concepts, literature, and
rights against other persons in respect to these items;
(d) all rights to sue for infringement or violation of any such
intellectual property comprising the Assets, whether arising prior
to or subsequent to the date of this Agreement, all rights to
collect any damages for past infringements or violations of such
rights, and any and all renewals and extensions thereof that may
hereafter be secured under the laws now or hereafter in effect in
the United States, Canada and in any other jurisdiction, the same
to be held and enjoyed by the said Purchaser, its successors and
assigns from and after the date hereof as fully and entirely as the
same would have been held and enjoyed by the said Seller had this
Agreement not been made; and
(e) all papers and records (whether in written, digital or other
form) presently in or in the future coming into the care, custody,
or control of Seller relating to the Assets sold to Purchaser
pursuant to this Agreement, including without limitation:
blueprints, specifications, software documentation, promotional
material and plans and designs relating to the Assets, if any.
1.02 Consideration . In
consideration of the sale and transfer of the Assets and the
representations, warranties, and covenants of Seller set forth in
this Agreement, Purchaser shall issue or cause to be issued to
Seller on the Closing Date Two Million (2,000,000) shares of par
value $.001 common stock of Purchaser (the "Securities"); Purchaser
shall not assume any liability or obligation associated with the
Assets, other than the indemnification obligations of Purchaser
contained herein.
1.03 Closing . The date of
execution of this Agreement shall be deemed the "Closing Date" of
this transaction. All terms and conditions to the Closing of this
Agreement shall have been met on the Closing Date.
ARTICLE 2: SELLER'S REPRESENTATIONS AND
WARRANTIES
Seller hereby represents and warrants to Purchaser that, to the
actual knowledge of Seller, without independent investigation, the
following facts and circumstances are true and correct as of the
date of this Agreement:
2.01 Title to Assets .
Seller has good and marketable title to the Assets.
2.02 Trade Names, Trademarks,
Copyrights, and Patents . Exhibit "A" attached to this
Agreement contains a true and correct list of all Intellectual
Properties acquired from People Solutions, Inc. and owned by
Seller. Seller is not a party to, and is not aware of, any current
license, agreement, or arrangement with respect to the Intellectual
Properties that has not been disclosed to Purchaser. All of the
Intellectual Properties are free and clear of any liens,
encumbrances, restrictions, or legal or equitable claims of others
arising through Seller.
2.03 Organization . Seller
is a limited partnership duly organized and validly existing, and
is in good standing under the laws of the state of Delaware.
2.04 Authority . Seller has
full power and authority to execute, deliver, and consummate this
Agreement, subject to the conditions to Closing set forth in this
Agreement.
2.05 Full Disclosure . No
representation, warranty, or covenant made to Purchaser in this
Agreement nor any document, certificate, exhibit, or other
information given or delivered to Purchaser pursuant to this
Agreement contains or will contain any untrue statement of a
material fact, or omits or will omit a material fact necessary to
make the statements contained in this Agreement or the matters
disclosed in the related documents, certificates, information, or
exhibits not misleading.
2.06 Suit or Proceeding .
No suit or proceeding, legal or administrative, relating to any of
the transactions contemplated by this Agreement have been overtly
threatened or commenced against Seller relating to the Intellectual
Property.
2.07 Broker . Neither
Seller, nor any of its officers, directors, employees, or
stockholders, has retained, consented to, or authorized any broker,
investment banker, or third party to act on its behalf, directly or
indirectly, as a broker or finder in connection with the
transactions contemplated by this Agreement.
2.08 Compliance with Securities
Laws . (a) Seller acknowledges that Purchaser is relying upon
the accuracy and completeness of the statements and representations
contained in this section in complying with its obligations under
the federal and state securities laws. Seller acknowledges and
represents that:
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(i) Seller is in a financial position to hold the Securities for
an indefinite period of time, is able to bear the economic risk of
an investment in the Securities and may withstand a complete loss
of Seller's investment in the Securities;
(ii) The Seller believes that it, either alone or together with
the assistance of its own professional advisor or advisors, has the
knowledge and experience in business and financial matters that
make it capable of reading and interpreting financial statements of
and concerning Purchaser and of evaluating the merits and risks of
an investment in the Securities;
(iii) Seller has obtained, to the extent it deems necessary, its
own personal professional advice with respect to the risks inherent
in an investment in the Securities and to the suitability of an
investment in the Securities in light of its financial condition
and investment needs;
(iv) Seller understands that an investment in the Securities is
highly speculative but that it believes that an investment in the
Securities is suitable based upon Seller's investment objectives
and financial needs, and that it has adequate means for providing
for its current financial needs and contingencies and has no need
for liquidity of investment with respect to the Securities;
(v) Seller acknowledges access to full and complete information
regarding Purchaser and has utilized that access to Seller's
satisfaction for the purpose of obtaining information concerning an
investment in the Securities and the terms and conditions of this
offering of the Securities, and has either attended or been given
reasonable opportunity to attend a meeting with representatives of
Purchaser for the purpose of asking questions of, and receiving
answers from, these representatives concerning Purchaser, an
investment in the Securities and the terms and conditions of this
offering of the Securities, and for the purpose of obtaining any
additional information to the extent reasonable available that is
necessary to verify the information provided;
(vi) Seller recognizes that the Securities as an investment
involve a high degree of risk;
(vii) Seller realizes that (A) the purchase of the Securities is
a long-term investment; (B) the Seller must bear the economic risk
of investment for an indefinite period of time because the
Securities have not been registered under the Securities Act of
1933, as amended, or the securities laws of any state, and,
therefore, cannot be sold unless they are subsequently registered
under these laws or exemptions from registrations are available;
(C) there presently is no public market for the Securities and
Seller may not be able to liquidate Seller s investment in the
Securities in the event of an emergency or to pledge the Securities
as collateral for loans; and (D) the transferability of the
Securities is restricted, and (1) requires conformity with the
restrictions contained hereinbelow, and (2) will be further
restricted by legends placed on the certificates representing the
Securities referring to the applicable restrictions on
transferability;
(b) Seller has been advised that the Securities have not been
registered under the Securities Act of 1933, as amended, or
applicable state securities laws, that the Securities are being
offered and sold pursuant to exemptions from the registration
requirements of these laws, and that the reliance of Purchaser on
these exemptions is predicated in part on Seller's representations
contained in this section. Seller represents and warrants that the
Securities are being purchased for its own account and for
investment and without the intention of reselling or redistributing
the Securities, that Seller has not made any agreement with any
other person or entity regarding any of the Securities, and that
Seller's financial condition is such that it is not likely that it
will be necessary for Seller to dispose of the Securities in the
foreseeable future. Seller is aware that, in the view of the
Securities and Exchange Commission, a purchase of the Securities
with an intent to resell the Securities by reason of any
foreseeable specific contingency or anticipated change in market
values, or any change in the condition of Seller or its business,
or in connection with a contemplated liquidation or settlement of
any loan obtained for the acquisition of the Securities and for
which the Securities was pledged as security, would represent an
intent that is inconsistent with the representations set forth
above. Seller further represents and agrees that, if, contrary to
Seller's foregoing intentions, Seller later should desire to
dispose of or transfer any of the Securities in any manner, Seller
will not do so without first obtaining (A) an opinion of
independent counsel to the effect that the proposed disposition or
transfer lawfully can be made without registration of the
Securities pursuant to the Securities Act of 1933 an then in effect
and applicable state securities law, or (B) such registration.
(c) Seller represents and warrants that the Securities are being
received by Seller in Seller's own name solely for Seller's own
beneficial interest, and not as nominee for, or on behalf of, or
for the beneficial interest of, or with the intention to transfer
to, any other person, trust or organization, except as specifically
set forth hereinbelow.
(d) Seller is informed of the significance to Purchaser of the
foregoing representations, agreements and consents, and they are
made with the intention that Purchaser may rely upon them and
agrees to indemnify Purchaser, and its officers, directors and
agents (the "Indemnified Parties") for any loss, claim or liability
which any Indemnified Party might incur as a result of reliance
upon any fact misrepresented by Seller in this section.
(e) Seller additionally represents that the representations
contained in this section have been duly authorized by all
necessary action on the part of Seller, has been duly executed by
an authorized officer or representative of Seller, and is a legal,
valid and binding obligation of Seller enforceable according to its
terms.
ARTICLE 3: PURCHASER'S REPRESENTATIONS AND
WARRANTIES
Purchaser represents and warrants to Seller that:
3.01 Authority . Purchaser
has full power and authority to execute, deliver, and consummate
this Agreement subject to the conditions to Closing set forth in
this Agreement. All corporate acts, reports, and returns required
to be filed by Purchaser with any government or regulatory agency
with respect to this transaction have been or will be properly
filed prior to the date of this Agreement. No provisions exist in
any contract, document, or other instrument to which Purchaser is a
party or by which Purchaser is bound that would be violated by
consummation of the transactions contemplated by this
Agreement.
3.02 Organization and Standing
of Purchaser . Purchaser is a corporation duly organized,
validly existing, and in good standing under the laws of the state
of Texas, with corporate power to own property and carry on its
business as it is now being conducted.
3.03 Inspection; No
Warranties . Purchaser acknowledges that it has had ample
opportunity to inspect the Assets and Purchaser accepts the Assets
as is, where is, without warranty of any kind from Seller, except
as otherwise provided in this Agreement.
3.04 Securities Duly Authorized.
The Securities are duly authorized and, when issued and paid for in
accordance with this Agreement, will be duly and validly issued,
fully paid and nonassessable, free and clear of all liens and
encumbrances other than restrictions on transfer contained on the
certificate(s) for such shares. The Securities, when issued in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, free and clear of all liens
and encumbrances. The Purchaser has not, and to the knowledge of
the Purchaser, no Affiliate of the Purchaser has sold, offered for
sale or solicited offers to buy or otherwise negotiated in respect
of any security (as defined in Section 2 of the Securities Act)
that would be integrated with the offer or sale of the Securities
in a manner that would requir
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