Exhibit 10.1
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ASSET PURCHASE AGREEMENT
by and among
RUTGERS INVESTMENT GROUP, LLC,
a Delaware limited liability company,
as
SELLER,
LEARNED ASSOCIATES OF NORTH AMERICA, LLC,
a New Jersey limited liability company,
SEVEN HILLS MANAGEMENT, LLC,
a Pennsylvania limited liability company,
and PETER S. FOX,
as MEMBERS of SELLER,
and
RUTGERS INVESTMENT GROUP, INC.,
a Texas corporation,
as
BUYER
Dated July 23, 2007
This ASSET PURCHASE AGREEMENT (this "AGREEMENT"), dated July
23, 2007, is
by and among Rutgers Investment Group, LLC, a Delaware limited
liability company
("SELLER"), Learned Associates of North America, LLC, a New
Jersey limited
liability company, Seven Hills Management, LLC, a Pennsylvania
limited liability
company, and Peter S. Fox (each a "MEMBER" and collectively, the
"MEMBERS") and
Rutgers Investment Group, Inc., a Texas corporation ("BUYER").
W I T N E S S E T H:
Seller desires to sell to Buyer and Buyer desires to
purchase and assume
from Seller substantially all of the assets and liabilities
related to Seller's
commercial and consumer lending business (the "BUSINESS"), as more
particularly
set forth herein.
Members are the sole members of Seller.
NOW, THEREFORE, in consideration of the premises and
the mutual
representations, warranties, covenants and undertakings
contained herein, and
for other good and valuable consideration, the receipt and
sufficiency of which
are hereby acknowledged, the parties hereto, intending to be
legally bound,
agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
Section 1.1 CERTAIN DEFINITIONS. As used in this Agreement,
the following
terms have the meanings set forth below:
"ACCOUNTS RECEIVABLE" are as defined in SCHEDULE 2.1.
"AFFILIATE" means, with respect to any Person, any
Person directly
or indirectly controlling, controlled by, or under common
control with, such
other Person. For purposes of this definition, the term "control"
(including the
correlative meanings of the terms "controlled by" and "under
common control
with"), as used with respect to any Person, means the possession,
directly or
indirectly, of the power to direct or cause the direction of
the management
policies of such Person, whether through the ownership of voting
securities or
by contract or otherwise.
"ANCILLARY AGREEMENTS" means collectively the
Assignment and
Assumption Agreement and the Bill of Sale, to be entered into at
Closing between
Buyer and Seller.
"BOOKS AND RECORDS" means all books, ledgers, files,
reports, plans,
records, manuals and other materials (in any form or medium) of,
or maintained
for, the Business, but excluding any such items to the extent
(i) they are
included in or primarily related to any Excluded Assets or Excluded
Liabilities,
(ii) any Law prohibits their transfer or (iii) any transfer
thereof otherwise
would subject Seller or any of its Affiliates to any Liability to
anyone other
than Buyer.
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"BUSINESS DAY" means any day other than Saturday,
Sunday or a day on
which banks in Philadelphia, Pennsylvania are authorized or
obligated by Law or
executive order to close.
"BUYER SHARES" is as defined in SECTION 2.5.
"CLIENT CONTRACTS" are as defined in SCHEDULE 2.1.
"CLOSING" means the closing of the asset sale that is
the subject of
this Agreement.
"CODE" means the Internal Revenue Code of 1986, as
amended.
"COMMON STOCK" means the common stock of FirstPlus,
as defined in
SECTION 4.3.
"CONTRACTS" means all personal property leases,
agreements and
contracts, including the Client Contracts and the Vendor Contracts.
"FINANCIAL STATEMENTS" is as defined in SECTION 3.5.
"FIRSTPLUS" means FirstPlus Financial Group, Inc.,
a Nevada
corporation.
"GAAP" means United States generally accepted
accounting principles
as in effect from time to time, consistently applied.
"GOVERNMENT ENTITY" means any federal, state,
local, foreign or
domestic court, administrative body or other governmental or
quasi-governmental
entity with competent jurisdiction.
"LAW" means any law, statute, ordinance, rule,
regulation, code,
order, judgment, injunction or decree enacted, issued, promulgated,
enforced or
entered by a Government Entity.
"LIABILITY" or "LIABILITIES" means any and all debts,
liabilities,
commitments and obligations of any kind, whether fixed, contingent
or absolute,
matured or unmatured, liquidated or unliquidated, accrued or
not accrued,
asserted or not asserted, known or unknown, determined,
determinable or
otherwise, whenever or however arising (including, whether
arising out of any
contract or tort based on negligence or strict liability) and
whether or not the
same would be required by GAAP to be reflected in financial
statements or
disclosed in the notes thereto.
"LIEN" shall mean any security interest, lien,
claim, pledge,
mortgage, charge, restriction on transfer, right under
conditional sales
contract or other encumbrance or charge of any nature whatsoever.
"MATERIAL ADVERSE EFFECT" is as defined in SECTION 3.1.
"MEMBERS' AGENT" is as defined in SECTION 9.12.
"NON-COMPETITION PERIOD" is as defined in SECTION 5.8.
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"ORDINARY COURSE" or "ORDINARY COURSE OF BUSINESS"
means the conduct
of the Business in accordance with Seller's normal day-to-day
customs, practices
and procedures.
"PERMITS" is as defined in SECTION 3.10.
"PERSON" means any individual, corporation,
partnership, limited
liability company, limited liability partnership, firm,
joint venture,
association, joint-stock company, trust, unincorporated
organization, estate,
sole proprietorship, association, Government Entity or other
entity.
"REGULATION D" means Regulation D of the United
States Securities
and Exchange Commission, as amended, issued under the Securities
Act.
"RIGHTS" means warrants, options, rights, convertible
securities and
other capital stock equivalents which obligate an entity
to issue its
securities.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"TAX RETURNS" means all reports, returns or other
information filed
or required to be filed with respect to Taxes, including any
amendments thereto.
"TAX" or "TAXES" means all federal, state or local
and all foreign
taxes, including income, gross receipts, windfall profits,
value added,
property, sales, use, duty, license, excise, franchise, employment,
withholding
or similar taxes, together with any interest, additions or
penalties with
respect thereto and any interest in respect of such additions or
penalties.
"TRANSACTION" means the purchase and sale of the
Transferred Assets
and the assumption of the Assumed Liabilities pursuant to this
Agreement.
"VENDOR CONTRACTS" are as defined in SCHEDULE 2.1.
Section 1.2 OTHER DEFINITIONAL PROVISIONS. Unless the
express context
otherwise requires: (a) the words "hereof", "herein", and
"hereunder" and words
of similar import, when used in this Agreement, shall refer to this
Agreement as
a whole and not to any particular provision of this Agreement;
(b) the terms
defined in the singular have a comparable meaning when used in the
plural, and
vice versa; (c) the terms "Dollars" and "$" mean United States
Dollars; (d)
references herein to a specific Section, Subsection or Schedule
shall refer,
respectively, to Sections, Subsections or Schedules of this
Agreement; (e)
wherever the word "include," "includes," or "including" is
used in this
Agreement, it shall be deemed to be followed by the words "without
limitation;"
and (f) references herein to any gender includes each other gender.
ARTICLE II
PURCHASE AND SALE OF THE BUSINESS
Section 2.1 PURCHASE AND SALE OF ASSETS. On the terms and
subject to the
conditions set forth herein, except as provided in SECTION 2.2
hereof, at the
Closing, Seller shall sell, convey, transfer, assign and deliver
to Buyer, free
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and clear of all Liens, and Buyer shall purchase from Seller
all of Seller's
right, title and interest, as of the Closing, in and to the
assets of Seller,
including without limitation, those set forth on SCHEDULE 2.1
(collectively, the
"TRANSFERRED ASSETS").
Section 2.2 EXCLUDED ASSETS. Notwithstanding anything
herein to the
contrary, from and after the Closing, Seller shall retain all of
its existing
right, title and interest in and to, and there shall be excluded
from the sale,
conveyance, assignment or transfer to Buyer hereunder, those
specified assets
listed on SCHEDULE 2.2 (collectively, the "EXCLUDED ASSETS").
Section 2.3 ASSUMPTION OF LIABILITIES. On the terms and
subject to the
conditions set forth herein, at the Closing, Buyer shall assume and
discharge or
perform when due the Liabilities relating to or arising out of
the conduct of
the Business or the Transferred Assets set forth on SCHEDULE 2.3
(the "ASSUMED
LIABILITIES").
Section 2.4 EXCLUDED LIABILITIES. Seller shall retain and
be responsible
for those liabilities specified on SCHEDULE 2.4 and all other
Liabilities
relating to or arising out of the conduct of the Business or the
Transferred
Assets not expressly included within the Assumed Liabilities
(the "EXCLUDED
LIABILITIES").
Section 2.5 Section 2.5 PURCHASE PRICE. On the terms and
subject to the
conditions set forth herein, in consideration of the sale of the
Transferred
Assets, Buyer shall pay and deliver to Seller (a) ONE MILLION
EIGHT HUNDRED
TWENTY FIVE THOUSAND DOLLARS ($1,825,000) in cash at the Closing
and (b) within
five Business Days after the Closing, FIVE HUNDRED THOUSAND
(500,000) shares of
common stock of FirstPlus (the "BUYER SHARES") issued to the
Seller under
Regulation D (the "PURCHASE Price").
Section 2.6 PURCHASE PRICE ALLOCATION. The Purchase
Price (which for
purposes hereof shall include the dollar amount of the Assumed
Liabilities)
shall be allocated among the Transferred Assets as set forth on
SCHEDULE 2.6
hereof for all Tax purposes including, without limitation, Code
Section 1060.
Seller and Buyer (and its Affiliates) shall file all Tax Returns
consistent with
the allocation described in this SECTION 2.6 hereof and use
their reasonable
commercial efforts to sustain such allocation in any subsequent
tax audit or
dispute. Each party shall file its respective IRS Form 8594
consistent herewith.
Section 2.7 CLOSING. The Closing shall take place at
the offices of
FirstPlus at 3:00PM prevailing Central Time, on the later of
July 23, 2007 or
the day on which all of the conditions precedent set forth in
ARTICLE VI shall
have been satisfied or waived. Such time and date are herein
referred to as the
"CLOSING DATE." Subject to the provisions of ARTICLE VIII
hereof, failure to
consummate such transactions on the date and the time determined
pursuant to
this SECTION 2.7 shall not result in the termination of this
Agreement and shall
not relieve any party of any obligation under this Agreement.
Section 2.8 DELIVERIES BY BUYER. (a) At the Closing,
Buyer shall
deliver to Seller the following:
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(i) the cash portion of the Purchase Price payable at
the Closing in
immediately available funds by wire transfer to an account or
accounts which
have been designated by Seller;
(ii) counterparts of an assignment and assumption
agreement, duly
executed by Buyer to effect Buyer's assumption of the Assumed
Liabilities and
the effective assignment of the Transferred Assets, substantially
in the form of
EXHIBIT A (the "ASSIGNMENT AND ASSUMPTION AGREEMENT");
(iii) duly executed counterparts of each of
the Ancillary
Agreements, if any, as applicable;
(iv) Resolutions of the Board of Directors of Buyer
authorizing the
execution and delivery of this Agreement by Buyer and the
performance of its
obligations hereunder, certified by the Secretary of Buyer; and
(v) Such other separate instruments of assumption
that Seller may
reasonably deem necessary or appropriate in order to confirm or
evidence Buyer's
assumption of the Assumed Liabilities.
(b) Within five Business Days after the Closing Date,
Buyer shall
deliver to Seller a duly issued share certificate(s)
representing the Buyer
Shares.
Section 2.9 DELIVERIES BY SELLER. At the Closing,
Seller shall
deliver, or cause to be delivered, to Buyer the following:
(a) a bill of sale, duly executed by Seller,
transferring the
tangible personal property included in the Transferred
Assets to Buyer,
substantially in the form of Exhibit B (the "BILL OF SALE");
(b) the Books and Records (provided that Seller may
retain copies
for archived purposes);
(c) duly executed counterparts of each of the
other Ancillary
Agreements, as applicable;
(d) Resolutions of the Members of Seller adopted at
meetings or by
consent authorizing the execution and delivery of this Agreement
by Seller and
the performance of its obligations hereunder, certified by
the Manager of
Seller;
(e) A certificate of the Secretary of State of the
State of Delaware
dated as of a recent date as to the good standing of Seller in such
state; and
(f) Such other separate bills of sale, assignments or
documents of
transfer that Buyer may reasonably deem necessary or
appropriate in order to
perfect, confirm or evidence title to all or any part of the
Transferred Assets.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER AND MEMBERS
Seller and Members jointly and severally represent and
warrant to Buyer as
of the date hereof and as of the Closing as follows:
Section 3.1 ORGANIZATION. Seller is a limited liability
company duly
organized, validly existing and in good standing under the laws of
Delaware, and
has all requisite power and authority to own, lease and operate
the Transferred
Assets, and to carry on the Business as currently conducted.
Complete and
correct copies of Certificate of Formation of Seller and all
amendments thereto,
certified by the Secretary of State of the State of Delaware, and
of the Limited
Liability Company Operating Agreement of Seller, and all
amendments thereto,
previously have been delivered to Buyer. Seller is duly qualified
to do business
as a foreign limited liability company, and is in good
standing in each
jurisdiction where the character of the properties owned, leased
or operated by
it or the nature of its activities makes such qualification
necessary, except
where the failure to be so duly qualified and in good
standing would not
reasonably be expected to have a Material Adverse Effect. For
the purposes of
this Agreement, "MATERIAL ADVERSE EFFECT" means any effect or
change that would
be materially adverse to the Business or the Transferred Assets of
Seller on one
hand or Buyer on the other hand, or on the ability of either party
to consummate
timely the transactions contemplated hereby.
Section 3.2 AUTHORIZATION. Each of Seller and Members has
full power and
authority to execute and deliver this Agreement and each of
the Ancillary
Agreements to which it is a party, and to perform its obligations
hereunder and
thereunder. The execution, delivery and performance by Seller
and Members of
this Agreement and such Ancillary Agreements has been duly
and validly
authorized and no additional limited liability company
authorization or consent
is required in connection with the execution, delivery and
performance by Seller
or Members of this Agreement or such Ancillary Agreements.
Assuming the due
execution and delivery of this Agreement by Buyer, this
Agreement is a legal,
valid and binding obligation of Seller and Members, enforceable
against them in
accordance with its terms, subject to applicable bankruptcy,
insolvency,
reorganization and moratorium laws and other laws of general
application
affecting the enforcement of creditors' rights generally, and
the fact that
equitable remedies or relief (including, but not limited to,
the remedy of
specific performance) are subject to the discretion of the court
from which such
relief may be sought.
Section 3.3 NO BREACH OF STATUTE OR CONTRACT. Neither the
execution and
delivery of this Agreement by Seller or Members, nor the
consummation by Seller
or Members of the transactions contemplated hereby, nor compliance
by Seller or
Members with any of the provisions hereof will violate or cause a
default under
any statute (domestic or foreign), judgment, order, writ,
decree, rule or
regulation of any Governmental Entity applicable to Seller or
Members or any of
their respective properties; breach or conflict with any of
the terms,
provisions or conditions of the Certificate of Formation or
Limited Liability
Company Operating Agreement of Seller; or violate, conflict with
or breach any
agreement, contract, mortgage, instrument, indenture or license to
which Seller
or Members is a party or by which Seller or Members is or may
be bound with
respect to the Transferred Assets or the Business, or constitute
a default (in
and of itself or with the giving of notice, passage of time or
both) thereunder,
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or result in the creation or imposition of any Lien upon, or give
to any other
party or parties any claim, interest or right, including rights
of termination
or cancellation in, or with respect to, the Transferred Assets.
Section 3.4 SUBSIDIARIES. Seller has no subsidiaries or
equity investments
in any other corporation, association, partnership, joint
venture or other
entity that carries on the Business.
Section 3.5 FINANCIAL STATEMENTS. The following
unaudited financial
statements of Seller (collectively, the "FINANCIAL STATEMENTS"),
which have been
furnished previously to Buyer by Seller, have been prepared
from and are in
accordance with the books and records of Seller in conformity with
GAAP applied
on a consistent basis throughout the periods involved, and
fairly present the
financial condition of Seller as at the dates stated and the
results of
operations of Seller for the periods then ended: balance sheets
of Seller at
December 31, 2005 and 2006 and the income statements for the
years then ended,
including footnotes (audited); and balance sheet of Seller at March
31, 2007 and
income statement for the three months then ended, including
footnotes.
Section 3.6 ABSENCE OF CERTAIN CHANGES AND EVENTS. Except as
set forth on
SCHEDULE 3.6, since December 31, 2006 there has not been with
respect to the
Business:
(i) Any material adverse change in its operations (as
now conducted
or as presently proposed to be conducted), assets, properties
or rights,
prospects or condition (financial or otherwise);
(ii) Any material transaction entered into or carried
out other than
in the ordinary and usual course of its business including,
without limitation,
any transaction resulting in the incurrence of liabilities or
obligations;
(iii) Any material change made in the methods of doing
business or
in the accounting principles or practices or the method of
application of such
principles or practices;
(iv) Any Lien imposed or agreed to be imposed on or
with respect to
the Transferred Assets that will not be discharged prior to the
Closing;
(v) Any modification, waiver, change, amendment,
release, rescission
or termination of, or accord and satisfaction with respect
to any term,
condition or provision of any Contract, other than any
satisfaction by
performance in accordance with the terms thereof in the
ordinary and usual
course of its business; or
(vi) Any damage, destruction or similar loss, whether
or not covered
by insurance, adversely affecting the Business.
Section 3.7 LIABILITIES. Except as set forth on SCHEDULE
3.7, Seller has
no liability or obligation of any nature (whether liquidated,
unliquidated,
accrued, absolute, contingent or otherwise and whether due or to
become due) in
respect of the Business except:
(i) those set forth or reflected in the Financial
Statements that
have not been paid or discharged since the date thereof;
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(ii) those arising under agreements or other
commitments listed on
any Schedule hereto; and
(iii) current liabilities arising in the ordinary and
usual course
of the Business subsequent to March 31, 2007 that are accurately
reflected in
the Books and Records in a manner consistent with past practice.
Section 3.8 TAXES. Except as set forth on SCHEDULE 3.8:
(i) Seller has duly filed all federal, state, local
and foreign tax
returns and tax reports required to be filed by it. All such
returns and reports
are true, correct and complete in all material respects, none of
such returns
and reports has been amended, and all taxes, assessments,
fees and other
governmental charges due with respect to the periods covered by
such returns and
reports have been fully paid;
(ii) SCHEDULE 3.8 sets forth the dates and results
of any and all
audits of federal, state, local and foreign tax returns of Seller
performed by
federal, state, local or foreign taxing authorities. No
waivers of any
applicable statutes of limitations are outstanding. All
deficiencies proposed as
a result of any audits have been paid or settled. There is no
pending or to
Seller's knowledge threatened federal, state, local or foreign
tax audit of
Seller and no agreement with any federal, state, local or foreign
tax authority
that may affect the subsequent tax liabilities of Seller; and
(iii) Seller has no liabilities for taxes other than
those that are
not yet due and payable, and no federal, state, local or foreign
tax authority
is now asserting or threatening to assert any deficiency or
assessment for
additional taxes with respect to Seller.
Section 3.9 LITIGATION. Except as set forth on SCHEDULE 3.9,
there are no
claims, actions, suits or proceedings pending or, to the knowledge
of Seller or
Members, threatened against or affecting Seller or any
Member, officer or
director of Seller in connection with the Business or the
Transferred Assets,
before any federal, state, local or foreign court or
Governmental Entity.
Neither Seller nor Members is subject to or in default with
respect to any
judgment, order, writ, injunction or decree that is binding
upon Seller or
Members with respect to the Business.
Section 3.10 COMPLIANCE WITH LAWS. Except as listed on
SCHEDULE 3.10,
(i) Each of Seller and Members are in compliance in
all material
respects with all laws, ordinances, regulations and orders
applicable to the
Business and the Transferred Assets and has no notice or
knowledge of any
violations, whether actual, claimed or alleged, thereof.
(ii) SCHEDULE 3.10 lists all franchises,
licenses, permits,
consents, authorizations, approvals and certificates of any
Governmental Entity
(collectively, the "PERMITS") used in conducting the Business.
Each of the
Permits is currently valid and in full force and effect and
the Permits
constitute all franchises, licenses, permits, consents,
authorizations,
approvals, and certificates of any Governmental Entity necessary
to the conduct
of the Business. Neither Seller nor Members is in violation
of any of the
Permits. There is no pending or, to the knowledge of Seller
or Members,
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threatened proceeding that could result in the revocation or
cancellation of, or
inability of Seller to renew, any Permit.
Section 3.11 EMPLOYEE BENEFIT PLANS. Seller has no pension,
retirement,
profit-sharing, deferred compensation, bonus, stock option or
other incentive
plan, or other employee benefit program, arrangement,
agreement or
understanding, or medical, vision, dental or other health
plan, or life
insurance or disability plan, or any other employee benefit plan
as defined in
Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended
("ERISA"), (whether or not any such employee benefit plans are
otherwise exempt
from the provisions of ERISA, whether or not legally
binding), adopted,
established, maintained or contributed to by Seller or under
which it would
otherwise be a party or have liability and under which
employees or former
employees (whether or not retired employees) of Seller (or their
beneficiaries)
are eligible to participate or derive a benefit.
Section 3.12 TITLE TO TRANSFERRED ASSETS. (a) Seller
has good and
marketable title to all Transferred Assets owned by it and
valid leasehold
interests in all Transferred Assets leased by it in the
operation of the
Business, free and clear of all Liens, except as listed on SCHEDULE
3.12 hereto,
and excluding (i) liens for taxes, fees, levies, imposts, duties or
governmental
charges of any kind that are not yet delinquent or are being
contested in good
faith by appropriate proceedings that suspend the collection
thereof; or (ii)
liens for mechanics, materialmen, laborers, employees, suppliers
or others that
are not yet delinquent or are being contested in good faith by
appropriate
proceedings. Seller is not in violation of any covenant, condition,
restriction,
easement, agreement, order or regulation of any Governmental
Entity having
jurisdiction over the Transferred Assets that affects the
Transferred Assets or
the use thereof.
Except as listed on SCHEDULE 3.12, no financing
statement under the
Uniform Commercial Code or similar law naming Seller as debtor has
been filed in
any jurisdiction in respect of the Transferred Assets, and Seller
is not a party
to or bound under any agreement or legal obligation authorizing
any party to
file any such financing statement.
Section 3.13 CONTRACTS AND COMMITMENTS. SCHEDULE 2.1 lists
all Contracts.
Each of the Contracts is valid and binding, in full force and
effect and
enforceable in accordance with its respective provisions. Except as
set forth on
SCHEDULE 2.1, Seller has not assigned, mortgaged, pledged,
encumbered, or
otherwise hypothecated any of its right, title or interest under
the Contracts
and no Contract has been amended, supplemented or superseded.
Except as set
forth on SCHEDULE 2.1, neither Seller nor, to the knowledge
of Seller or
Members, any other party thereto is in material violation of,
in default in
respect of, nor, to knowledge of Seller or Members, has there
occurred an event
or condition which, with the passage of time or giving of
notice (or both),
would constitute a material violation or a default of any
Contract. No notice
has been received by Seller claiming any such default by Seller
or indicating
the desire or intention of any other party thereto to amend,
modify, rescind or
terminate any Contract.
Section 3.14 BOOKS OF ACCOUNT; RECORDS. The general
ledgers, books of
account and other records of Seller in respect of the Business are
complete and
correct in all material respects, have been maintained in
accordance with sound
business practices and the matters contained therein are
appropriately and
accurately reflected in the Financial Statements.
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Section 3.15 FINDERS' FEES. There is no investment banker,
broker, finder
or other intermediary that has been retained by or is
authorized to act on
behalf of Seller or Members who might be entitled to any fee or
commission from
Seller or Members in connection with the transactions contemplated
hereby.
Section 3.16 ACCOUNTS RECEIVABLE. As of the Closing, each of
the Accounts
Receivable is fully collectible without deduction or offset other
than for the
Deferred Revenue associated therewith.
Section 3.17 INVESTMENT STATUS. Seller represents that it
will receive the
Buyer Shares for its own account, for investment only and not with
a view to, or
any present intention of, effecting a distribution of such
securities or any
part thereof, except pursuant to a registration statement or
an available
exemption under applicable Law. Seller acknowledges that the
Buyer Shares have
not been registered under the Securities Act or the securities laws
of any state
or other jurisdiction and cannot be disposed of unless they are
subsequently
registered under the Securities Act and any applicable state Laws
or unless an
exemption from such registrations is available.
Section 3.18 DISCLAIMER; NO OTHER REPRESENTATIONS OR
WARRANTIES. EXCEPT AS
MAY OTHERWISE BE EXPRESSLY SET FORTH IN THIS AGREEMENT,
SELLER MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE
BUSINESS, THE
TRANSFERRED ASSETS OR THE ASSUMED LIABILITIES, EXPRESS OR
IMPLIED, INCLUDING
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR
A PARTICULAR
PURPOSE.
Section 3.19 CLOSING DATE EFFECT. All of the
representations and
warranties of Seller and Members are true and correct as of the
date hereof and
shall be true and correct on and as of the Closing Date with the
same force and
effect as if such representations and warranties were made by
Seller to Buyer on
the Closing Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller and Members as of
the date hereof
and as of the Closing as follows:
Section 4.1 ORGANIZATION. Buyer is a corporation duly
organized, validly
existing and in good standing under the laws of Texas.
Section 4.2 AUTHORIZATION. Buyer has all requisite
corporate power and
authority to own and operate its properties and ass
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