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Exhibit 10.1
ASSET REPURCHASE AGREEMENT
This
Asset Repurchase Agreement is entered into this 27 th
day of March 2008 by and among Richard C. Klein,
II (“Buyer”)
and W.E. Rock Event, Inc. , a Nevada corporation (“Seller”)
.
RECITALS
WHEREAS,
Buyer and Seller entered into an Asset Purchase Agreement
dated September 28, 2007 (“Purchase
Agreement”) pursuant to which the Seller acquired
certain assets and assumed certain liabilities of the Buyer
( referred
to as “ Acquired Assets” and “Assumed
Liabilities” in the Purchase
Agreement).
WHEREAS,
Seller desires to resell and reassign the Acquired Assets to
Buyer and Buyer wishes to
repurchase the Acquired Assets and reassume the Assumed
Liabilities.
NOW.
THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the
representations, warranties covenants contained herein, the
parties agree as follows:
1.
Definitions
. When used in this Agreement, the terms set forth below and
those defined throughout the Agreement when initially
capitalized shall have the meanings ascribed to
them.
"
Adverse
Consequences " means all legal actions, suits,
proceedings, hearings, governmental investigations,
complaints, claims, demands, injunctions, judgments, orders,
decrees, rulings, damages, penalties, fines, costs,
liabilities, obligations, taxes, liens, losses, expenses, and
fees, including litigation costs and reasonable attorneys'
fees and expenses.
"
Acquired
Assets " means all of the right, title, and interest
that Seller possesses and has the right to transfer in and to
the assets set forth in Schedule A attached hereto and
incorporated by this reference.
"
Assumed
Liabilities " means the liabilities and obligations of
Seller set forth in Schedule B attached hereto and
incorporated by this reference.
"
Closing "
has the meaning set forth in Section 2(d) below.
"
Closing
Date " has the meaning set forth in Section 2(d)
below.
"
Code "
means the Internal Revenue Code of 1986, as
amended.
"
Confidential
Information " means any confidential, trade secret or
other proprietary information (in whatever form or media, and
whether or not marked as confidential) pertaining to Seller
including without limitation any and all information,
documents and other materials concerning the business and
affairs of Seller that is not already generally available to
the public at the time of disclosure to Buyer
hereunder.
"
GAAP "
means United States generally accepted accounting principles
as in effect from time to time.
Asset Repurchase Agreement- Page 1
"
Income
Tax " means any federal, state, local, or foreign
income tax, including any interest, penalty, or addition
thereto, whether disputed or not.
"
Income Tax
Return " means any return, declaration, report, claim
for refund, or information return or statement relating to
Income Taxes, including any schedule or attachment
thereto.
"
Knowledge
" means actual knowledge without independent
investigation.
"
Ordinary Course
of Business " means the ordinary course of business
consistent with past custom and practice, including with
respect to quantity and frequency.
"
Party "
has the meaning set forth in the preface above.
"
Person "
means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture,
an unincorporated organization, or a governmental entity (or
any department, agency, or political subdivision
thereof).
"
Purchase
Price " has the meaning set forth in Section 2(c)
below.
"
Securities
Act " means the Securities Act of 1933, as
amended.
"
Securities
Exchange Act " means the Securities Exchange Act of
1934, as amended.
"
Security
Interest " means any mortgage, pledge, lien,
encumbrance, charge, or other security interest, other
than (a) mechanic's, materialmen's, and similar liens,
(b) liens for taxes not yet due and payable or for taxes that
the taxpayer is contesting in good faith through appropriate
proceedings, (c) purchase money liens and liens securing
rental payments under capital lease arrangements, and (d)
other liens arising in the Ordinary Course of Business and not
incurred in connection with the borrowing of
money.
"
Subsidiary
" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common
stock or has the power to vote or direct the voting of
sufficient securities to elect a majority of the
directors.
2.
Basic
Transaction .
(a)
Purchase and
Sale of Assets . On and subject to the terms
and conditions of this Agreement, Seller agrees to purchase
from Buyer, and Buyer agrees to sell, transfer, convey, and
deliver to Seller, all of the Acquired Assets at the Closing
for the consideration specified below in this Section
2.
(b)
Assumption of
Liabilities . On and subject to the terms
and conditions of this Agreement, Buyer agrees to assume and
become responsible for all of the Assumed Liabilities at the
Closing.
(c)
Purchase
Price . The purchase price to be paid by
Buyer for the Acquired Assets will be as follows:
Asset Repurchase Agreement- Page 2
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(i)
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The
assumption of the Assumed Liabilities;
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(ii)
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The
cancellation by Buyer of Seller’s of its
non-negotiable secured convertible demand promissory note
(“Original Seller
Note”) delivered to Buyer under the Asset
Purchase Agreement;
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(iii)
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Termination
by Buyer of the General Security Agreement dated September 28,
2007 between Seller and Buyer (“Original
Security Agreement”) ;
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(iv)
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Issuance
by Buyer to Seller, or Seller’s designee, of $125,000 of
sponsorship considerations for all events to be held by Buyer
during calender year 2008.
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(d)
The
Closing . The closing of the transactions
contemplated by this Agreement ("Closing" )
shall take place at the offices of Robert C. Laskowski,
Attorney at Law, at 520 SW Yamhill, Suite 600,
Portland, OR 97204 on the second business day following the
satisfaction or waiver of all conditions to the obligations of
the Parties to consummate the transactions contemplated
hereby, other than conditions with respect to actions the
respective Parties will take at the Closing
itself, or such other date as the Parties may
mutually determine ( "Closing
Date"); provided,
however that the Closing Date shall be no later than
April 1, 2008.
(e)
Deliveries at
the Closing . In addition to any other
documents to be delivered under other provisions of this
Agreement, at the Closing:
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(i)
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Seller will
execute and deliver to Buyer:
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(A)
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a
bill of sale for the Acquired Assets in the form attached hereto as
Exhibit 2(e)(i);
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(B)
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such
other deeds, bills of sale, assignments, certificates of
title, documents and other instruments as may reasonably be
requested by Buyer, each in a form and substance satisfactory
to Buyer, as the case may be, and their legal
counsel;
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(ii)
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Buyer
will deliver to Seller:
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(A)
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the
Original Seller Note marked
“CANCELLED”;
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(B)
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the
termination of the Original Security Agreement;
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(C)
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the
Assumption Agreement in the form attached hereto as
Exhibit
2(e)(ii);
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(D)
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the
termination of Buyer’s employment agreement with
Seller.
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3.
Representations
and Warranties of Seller . Seller represents
and warrants to Buyer that the statements contained in this
Section 3 are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing
Date, as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this
Section
Asset Repurchase Agreement- Page 3
(a)
Noncontravention
. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions
contemplated hereby, including the assignments and assumptions
referred to in Section 2 above, will (i) violate any
constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Seller is
subject, or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate,
modify, or cancel, or require any notice under any agreement,
contract, lease, license, instrument, or other arrangement to
which Seller is a party or by which he is bound or to which
any of his assets is subject, or result in the imposition of
any Security Interest upon any of his assets, except where the
violation, conflict, breach, default, acceleration,
termination, modification, cancellation, failure to give
notice, or Security Interest would not have a material adverse
effect or on the ability of the Parties to consummate the
transactions contemplated by this Agreement. Seller
shall not be required to give any notice to, make any filing
with, or obtain any authorization, consent, or approval of any
government or governmental agency in order for the Parties to
consummate the transactions contemplated by this Agreement,
including the assignments and assumptions referred to in
Section 2 above, except where the failure to give notice, to
file, or to obtain any authorization, consent, or approval
would not have a material adverse effect on the ability of the
Parties to consummate the transactions contemplated by this
Agreement.
(b)
Brokers'
Fees . Seller has no liability or obligation
to pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this
Agreement for which Buyer could become liable or
obligated.
(c)
Title
to Assets . Seller has good
and marketable title to the Acquired Assets free of
any liens and encumbrances.
(d)
Disclaimer of
other Representations and Warranties
. Except as expressly set forth in this Section 3,
Seller makes no representation or warranty, express or
implied, at law or in equity, in respect of the Acquired
Assets and the Assumed Liabilities with respect to
merchantability or fitness for any particular purpose, and any
such other representations or warranties are hereby expressly
disclaimed. Buyer hereby acknowledges and agrees
that, except to the extent specifically set forth in this
Section 3, it is purchasing the Acquired Assets on an "as-is,
where-is" basis. Without limiting the generality of
the foregoing, Seller makes no representation or warranty
regarding any assets other than the Acquired Assets or any
liabilities other than the Assumed Liabilities, and none shall
be implied at law or in equity.
4.
Pre-Closing
Covenants . The Parties agree as follows
with respect to the period between the execution of this
Agreement and the Closing.
(a)
General
. Each of the Parties will use its reasonable best
efforts to take all action and to do all things necessary in
order to consummate and make effective the transactions
contemplated by this Agreement, including satisfaction, but
not waiver, of the closing conditions set forth in Section 6
below.
(b)
Ownership of
Acquired Assets . Seller will not engage in
any practice, take any action, or enter into any transaction
which will have the affect of causing an Adverse Consequence
to the Acquired Assets.
Asset Repurchase Agreement- Page 4
(c)
Confidentiality
. Each of the Parties will treat and hold in the
strictest confidence any Confidential Information it receives
from the other in the course of the negotiation and
preparation of this Agreement and will not use any of the
Confidential Information except in connection with this
Agreement, and in addition shall not directly or indirectly
disclose, copy, distribute, republish or allow any third party
to have access to any Confidential Information except to the
extent necessary to effect the transactions contemplated under
this Agreement, and in such cases solely to their respective
officers, counsel, accountants and similar agents , and, if this
Agreement is terminated for any reason whatsoever, will return
to Company all tangible embodiments, and all copies
of the Confidential Information which are in their respective
possession, custody or control.
5.
Conditions to
Obligation to Close .
(a)
Conditions to
Obligation of Buyer . The obligation of
Buyer to consummate the transactions to be performed by them
in connection with the Closing is subject to satisfaction of
the following conditions:
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(i)
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the
representations and warranties set forth in Section 3 above
shall be true and correct in all material respects at and as
of the Closing Date;
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(ii)
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Seller
shall have performed and complied with all of its covenants
hereunder in all material respects through the
Closing;
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(iii)
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there
shall not be any injunction, judgment, order, decree, ruling,
or charge in effect preventing consummation of any of the
transactions contemplated by this Agreement;
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(iv)
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all
actions to be taken by Seller in connection with consummation
of the transactions contemplated hereby and all certificates,
instruments, and other documents required to effect the
transactions contemplated hereby will be reasonably
satisfactory in form and substance to Rhino and
Seller.
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Each
Buyer may waive any condition specified in this Section 5(a)
if it executes a writing so stating at or prior to the
Closing.
(b)
Conditions to
Obligation of Seller . The obligation of
Seller to consummate the transactions to be performed by him
in connection with the Closing is subject to satisfaction of
the following conditions:
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(i)
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there
shall not be any injunction, judgment, order, decree, ruling,
or charge in effect preventing consummation of any of the
transactions contemplated by this A
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