Exhibit 10.1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the
"Agreement") is made this 26th day of
January, 2009, by and among Advanced Technologies
Group, Ltd. ("Seller"), a
Nevada corporation, having its principal place of
business at 249 Washington
Street, Jersey City, NJ 07302, FX Direct Dealer, LLC
("Purchaser"), a Delaware
limited liability company, having its
principal place of business at 75 Park
Place, 4th floor, New York, NY 10007 (Seller
and Purchaser are hereinafter
sometimes referred to individually as
a "Party" or collectively as the
"Parties"), MaxQ Investments, LLC., a Delaware limited liability
company, having
a principal place of business at 75 Park Place, 4th
Floor, New York, New York
10007 (MaxQ Investments LLC ("MaxQ") is sometimes
referred to as the "Majority
MEMBER"), and Tradition, N.A., having its principal place of
business at 75 Park
Place, 4th floor, New York, New York 10007
("Tradition"), but with respect to
Tradition only as to Section 5 (e) of this Agreement.
WHEREAS, the Parties,
MaxQ and Tradition agree and acknowledge
that,
although this Agreement is being executed as of
the date hereof and a Closing
with respect to the purchase and sale transaction referenced
herein is proposed
to occur hereafter, the Parties reached
substantial agreement subject to the
closing conditions contained herein, and intend such
Closing to have occurred,
as of December 31, 2008;
WHEREAS, Purchaser
desires to purchase substantially all
of Seller's
Membership Interest in an amount equal to 99.96% of Seller's
Percentage Interest
(as defined in that certain Operating Agreement of
Purchaser, dated March 20,
2002 (the "Operating Agreement") in
Purchaser (which 99.96% of Seller's
Percentage Interest purchased hereunder shall be the "Interest
Purchased"), such
that Seller shall retain a Membership
Interest equal to a .01% Percentage
Interest in Purchaser (such Percentage Interest as calculated after
the purchase
is consummated) (which retained Units
owned by Seller are the "Retained
Interest");
WHEREAS, the Parties desire to
resolve any and all claims that the Seller
Parties (those parties as defined in the
"Mutual General Release" attached
hereto as Exhibit A) and the Purchaser Parties (as defined in the
Mutual General
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Release) may each have as against the
others, as set forth in such Mutual
General Release;
WHEREAS, in connection with Seller's sale
of the Interest Purchased, Seller
and Purchaser shall agree to the terms of an
Amended and Restated Operating
Agreement, on or before the Closing Date (defined in Section 1 (b)
below) of the
sale of the Interest Purchased, which Amended and
Restated Operating Agreement
shall amend the Operating Agreement in recognition of
the Sale Transaction as
defined in Section 1(b) below;
WHEREAS, in accordance with
the terms hereof, the Purchaser will make a
cash down payment and will execute a subordinated
note and cash subordinated
note agreement in favor of Seller (which subordinated
note and agreement shall
comply with all applicable regulatory guidelines), the
payment of which cash as
set forth in Section 1 hereof, and the issuance, execution and
delivery of which
documents, in addition to satisfaction or waiver of the
closing conditions set
forth in Section 5 hereof, shall operate to transfer the
Interest Purchased to
Purchaser;
WHEREAS, Seller desires to
sell the Interest Purchased and
Purchaser,
acting by authority conferred by the
Majority Member as reflected by its
execution hereof, desires to purchase the
Interest subject to the terms and
conditions set forth herein.
NOW THEREFORE, in
consideration of the premises, promises and
covenants
set forth herein, and for other good and valuable consideration,
the receipt and
sufficiency of which is hereby
acknowledged, the Parties hereby agree
as
follows:
1. PURCHASE AND SALE.
(a) Recitals. The Recitals
hereto are incorporated by reference in this
Agreement and made a part hereof.
(b) Sale of Interest.
Effective upon the closing of this transaction
as
hereinafter provided
(the "Closing" and such date the "Closing
Date"),
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Seller shall irrevocably sell,
convey, assign and transfer to Purchaser,
and Purchaser shall
purchase, acquire and accept from Seller,
all of
Seller's right, title
and interest in and to the Interest
(the "Sale
Transaction") free and clear of any
liens, charges, security interests,
pledges, mortgages or
other encumbrances (other than
restrictions on
transfer generally arising under the
Securities Act of 1933, as amended or
other applicable laws) (collectively,
"Liens").
(c) Purchase Price. The purchase price for
the Interest Purchased is TWENTY
SIX MILLION U.S. DOLLARS ($26,000,000)
(the "Purchase Price"). The Purchase
Price is payable on the Closing Date by
means of a cash down payment equal
to NINE MILLION U.S. DOLLARS
($9,000,000) (the "Down Payment") made to
Seller as indicated in Section 5(c)(ii)
hereof, and the duly authorized and
executed Subordinated
Note attached hereto as Exhibit B ("Note") in the
amount of
SEVENTEEN MILLION U.S.
DOLLARS ($17,000,000) (the
"Indebtedness"),
pursuant to the terms and
conditions of a Cash
Subordinated Loan Agreement
attached hereto as Exhibit C (the "CSLA") and
the Note.
2. REPRESENTATIONS AND WARRANTIES OF
SELLER. Seller hereby represents and
warrants to Purchaser that, as of
the date of this Agreement and at and as
of the Closing Date:
(a) Seller is a
publicly-traded corporation duly registered
under the
Securities Exchange Act of 1934 and
incorporated, validly existing and in
good standing under the
laws of the State of Nevada. Seller has
full
corporate power and authority
necessary for the execution, delivery and
performance by Seller of this Agreement
and the transactions and agreements
contemplated hereby.
(b) This Agreement has been duly
authorized by all requisite corporate acts
or proceedings of the Seller in accordance
with applicable laws, including
all federal and state
securities laws (subject to the
requirements of
Regulation 14C of the Securities
Exchange Act of 1934), and has been duly
executed and delivered by Seller and,
assuming due authorization, execution
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and delivery hereof
by Purchaser, is the legal,
valid and binding
obligation of Seller,
enforceable against Seller in accordance with
its
terms.
(c) The execution, delivery
and performance of this Agreement and
the
consummation of the transactions
contemplated hereby, including, without
limitation the Sale
Transaction (subject to compliance with
applicable
securities law requirements), does
not conflict with or result in a breach
or violation of any of the terms or
provisions of, or constitute a default
under: (i) the articles of
incorporation or by-laws of Seller, or, as of
the Closing Date, the Amended and
Restated Operating Agreement, (ii) any
indenture, mortgage, deed of
trust, loan agreement or other agreement or
instrument to which Seller is a
party or by which Seller is bound, or to
which any of the property or assets of
Seller is subject, or (iii) any law,
order, rule judgment,
decree or regulation of any court or governmental
agency or body having jurisdiction over
Seller or the property of Seller.
(d) Seller is the sole record
and beneficial owner of, and has good and
valid title to, the Interest, free and
clear of all Liens.
(e) No claim, legal action, suit,
arbitration, governmental investigation
or other legal or administrative
proceeding is pending or, to the knowledge
of the Seller, threatened in
writing against the Seller that would enjoin
or delay the consummation of the
transactions contemplated hereby.
(f) Seller is not a party to any agreement
with any finder or broker, or in
any way obligated to any
finder or broker for any commissions, fees or
expenses, in connection
with the origin, negotiation,
execution or
performance of this
Agreement for which any of the
Purchaser or the
Majority Member would be liable.
(g) Seller has received and reviewed the
financial statements and business
plans of the Purchaser
(including audited financial statements
dated
12/31/07 Form 1-FR prepared in
accordance with regulations of the U.S.
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Commodity Futures Trading Commission
("CFTC Regulations") as of 11/30/08),
has had the opportunity to ask
questions of Purchaser and its management
regarding the financial
and operating status of the Purchaser and the
current status of all material
facts affecting the business or operations
of Purchaser, and has considered all
this information thoroughly prior to
executing this Agreement.
Seller has sought appropriate legal, tax and
investment advice regarding sale of its
Interest Purchased to Purchaser and
is selling the
Interest Purchased freely, voluntarily
and with all
reasonable information to make an informed
decision.
3. REPRESENTATIONS AND WARRANTIES OF
PURCHASER. Purchaser hereby represents
and warrants to Seller that, as of the
date of this Agreement and at and as
of the Closing Date:
(a) Purchaser is a
limited liability company duly
organized, validly
existing and in good
standing under the laws of the State of
Delaware.
Purchaser has full limited power and
authority necessary for the execution,
delivery and performance by Seller
of this Agreement and the transactions
contemplated hereby.
(b) This Agreement has
been duly authorized by all requisite
acts or
proceedings of the
Purchaser and has been duly executed and delivered by
Purchaser and is the legal,
valid and binding obligation of Purchaser,
enforceable against
Purchaser in accordance with its
terms. The Sale
Transaction has been duly
authorized by all requisite acts or proceedings
of the Purchaser prior to the Closing
Date.
(c) The execution, delivery
and performance of this Agreement and
the
consummation of the transactions
contemplated hereby, including without
limitation the Sale
Transaction (subject to appropriate
approvals by
applicable regulatory
authorities, including the Regulators) does
not
conflict with or result in a
breach or violation of any of the terms or
provisions of, or constitute a default
under: (i) any indenture, mortgage,
deed of trust, loan agreement
or other agreement or instrument to which
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Purchaser is a party or by which Purchaser
is bound, or to which any of the
property or assets of Purchaser is
subject, or (ii) any law, order, rule
judgment, decree or regulation of
any court or governmental agency or body
having jurisdiction over Purchaser or the
property of Purchaser.
(d) No claim, legal action, suit,
arbitration, governmental investigation
or other legal or administrative
proceeding is pending or, to the knowledge
of the Purchaser, threatened
in writing against the Purchaser that would
enjoin or delay the consummation of the
transactions contemplated hereby.
(e) Purchaser is not a party to any
agreement with any finder or broker, or
in any way obligated to any finder or
broker for any commissions, fees or
expenses, in connection
with the origin, negotiation,
execution or
performance of this Agreement.
(f) The Majority Member, Seller and
Tradition, N.A., constitute all of the
members of Purchaser. By
its execution of this Agreement, the Majority
Member hereby confirms
that (i) the Purchaser's Board of Managers
has
approved such Agreement; and
(ii) Purchaser has the authority to execute
this Agreement and consummate the
transaction contemplated hereunder.
(g) (A) The audited financial statements
of the Purchaser as of and for the
year ended December
31, 2007, together with the
related notes and
schedules, if any and the most
recent Form 1-FR prepared by the Purchaser
(collectively, the "Available
Financial Statements"), attached hereto as
Schedule 3(g) are true, correct and
complete in all respects, (B) have been
prepared in
accordance with GAAP; (C)
subject to normal auditing
adjustments, present fairly, and are
true, correct and complete statements
in all material respects of
the financial condition and the results of
operations, retained
earnings, members' equity and cash
flows of the
Purchaser as at and for the periods
therein specified; and (D) have been
prepared from and are in
accordance with the books and records of
the
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Purchaser. For the purposes of this
subsection, "GAAP" means United States
generally accepted accounting
principles.
(h) Except as disclosed on Schedule
3(h), since December 31, 2007, there
has not been any material
adverse change in the condition, operations,
assets, liabilities,
earnings, business, results of operations
or the
Adjusted Net Capital
(defined below) of the Purchaser or its ability to
repay its obligations.
"Adjusted Net Capital" means: (i) an amount
of
capital held by Purchaser, if such
Purchaser were registered to engage in
the business of foreign
exchange under CFTC Regulations, which would
be
required to be reported on a Form 1-FR by
the National Futures Association
("NFA"); less (ii)
haircuts related to risks associated with
carrying
positions in currencies; less
(iii) non-allowable assets, all determined
pursuant to the CFTC Regulations.
(i) Purchaser and the Majority
Member are not aware of any pending actions
or proceedings, nor are they aware of any
facts which would reasonably form
the basis of an action or
proceeding, which action or proceeding
would
materially and adversely effect the
business of Purchaser, its Adjusted Net
Capital or its ability to repay its
obligations.
(j) Except for (i) Liabilities
(defined below) expressly reflected or
reserved for in the Financial
Statements, (ii) Liabilities incurred in the
ordinary course of business
consistent with past practice of Purchaser
since the date of the Form 1-FR
incorporated in the Financial Statements,
(iii) Liabilities which
individually or in the aggregate are not material
to the Purchaser, and (iv)
Liabilities set forth on Schedule 3(j) hereto,
the Purchaser does not have
any Liabilities, subordinated or otherwise,
which are material to the condition
(financial or otherwise) of the assets,
properties, or business of the
Purchaser and which would materially and
adversely effect the business of the
Purchaser, its Adjusted Net Capital or
its ability to repay its
obligations. For the purposes of this Section 3
(j), "Liabilities" means all liabilities
and obligations, known or unknown,
asserted or unasserted,
absolute or contingent, accrued or
unaccrued,
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liquidated or unliquidated,
whether due or to become due, which relate to
the operation of the Purchaser's business
prior to the Closing.
(k) The Purchaser has
available to it sufficient funds to pay Seller the
Down Payment without violating its minimum
capital requirements established
by the NFA.
(l) Purchaser and the
Majority Member represent and warrant
that, if
Purchaser were a
registered entity as of the date
hereof, it would
currently comply with the
minimum capital requirements established
by
applicable regulatory authorities.
4. COVENANTS OF THE PARTIES.
(a) Waiver. Effective
immediately as of the date of this Agreement, each
Party hereby waives any and
all rights arising or existing under
the
Operating Agreement, the
Purchaser's Certificate of Organization or any
other agreement that would in any way
prohibit or restrict the consummation
of the Sale Transaction.
(b) Non-Solicitation;
Non-Interference; Non-Use; Non-Competition. From and
after the date of execution of this
Agreement, the Seller and the Purchaser
shall not: (i) hire, recruit,
solicit or otherwise attempt to employ or
engage any person
employed by the other Party, or induce or attempt
to
induce any person
to leave such employment, other
than soliciting
employment by placement
of general advertisements for such persons in
newspapers or other media of general
circulation, (ii) in any way interfere
with the relationship between
Purchaser or Seller, as the case may be, and
any employee, customer, sales
representative, broker, supplier, licensee or
other business relation (or any
prospective customer, supplier, licensee or
other business
relationship) of the other Party
(including, without
limitation, by
making any negative or
disparaging statements or
communications regarding
the other Party or any of
its operations,
officers, managers or
members); (iii) use, display or distribute
any
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intellectual property or other
assets or attributes of the other Party; or
(iv) directly or indirectly
engage in any business that competes with the
business of the other Party;
provided, however, Seller may engage in the
business of software
development but not for the purpose of supplying or
serving businesses
principally engaged in the exchange or ownership
of
currencies, or trading in spot, Over
The Counter ("OTC") foreign exchange
transactions.
(c) The Parties
acknowledge their respective obligations
under this
Agreement, the CSLA and the
Note shall continue following Closing
and
further acknowledge that
references to the Agreement, to the CSLA and to
the Note shall, where the context
requires, include reference to the other
transaction documents. To the
extent, if any, there is a conflict between
the terms and
conditions of this Agreement and
either the terms and
conditions of the CSLA or the terms
and conditions of the Note, the terms
and provisions of the
Agreement shall control; provided,
however, if
applicable regulatory authorities require
otherwise, the provisions of the
CSLA shall control in any event.
(d) On or before the
Note is paid in full, subject to all
applicable
regulatory requirements,
Purchaser will use its commercially reasonable
efforts to:
(i) pay and discharge, as the
same shall become due and payable, all its
obligations and liabilities,
including (A) all material tax liabilities,
assessments and governmental charges or
levies upon it or its properties or
assets, and (B) all lawful claims
(including, without limitation, claims of
landlords, warehousemen,
customs brokers, and carriers) which, if unpaid,
would by law become a lien upon its
property;
(ii) preserve, renew and
maintain in full force and effect its
legal
existence and good
standing under the laws of the jurisdiction
of its
organization and take
all reasonable action to maintain
all rights,
privileges, permits, licenses and
franchises necessary or desirable in the
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normal conduct of its business,
except to the extent that failure to do so
could not reasonably be expected to
have a material and adverse effect on
its business and operations; and
preserve or renew all of its intellectual
property, except to the extent such
intellectual property is no longer used
or useful in the conduct of the business
of the Purchaser;
(iii) maintain, preserve and
protect all of its material properties and
equipment necessary in the operation
of its business in good working order
and condition, ordinary
wear and tear excepted; and make all necessary
repairs thereto and renewals
and replacements thereof, except where the
failure to do so could not
reasonably be expected to have a material and
adverse effect on its business and
operations;
(iv) maintain with financially
sound and reputable insurance companies,
insurance with respect to
its properties and business against loss
or
damage of the kinds
customarily insured against by persons engaged in the
same or similar business and operating in
the same or similar locations or
as is required by applicable law, of
such types and in such amounts (after
giving effect to
any self-insurance compatible
with the following
standards) as are customarily
carried under similar circumstances by such
other persons;
(v) comply in all material respects
with the requirements of all U.S. laws
and all U.S. orders, writs,
injunctions and decrees applicable to it or to
or property, except in such
instances in which (A) such requirement of law
or order, writ, injunction or
decree is being contested in good faith by
proceedings diligently
conducted and with respect to
which adequate
reserves have been set aside and
maintained in accordance with GAAP; and
(B) such contest effectively
suspends enforcement of the contested laws,
and (C) the failure to comply therewith
would not reasonably be expected to
have a material and adverse effect on its
business, operations and Adjusted
Net Capital;
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(vi) maintain proper books of record
and account, in which full, true and
correct entries in conformity with GAAP
consistently applied shall be made
of all financial
transactions and matters involving
its assets and
business; and maintain
such books of record and account in
material
conformity with all applicable
requirements of it Regulators (defined in
Section 5(a)(i) below), as the case may
be;
(vii) make available to Seller
within 20 days of completion to Purchaser's
satisfaction: (a) copies of Form 1-FR
statements filed monthly with the NFA
upon registration therewith,
and (b) audited financial statements of the
Purchaser for each fiscal year of
Purchaser's business until the Purchase
Price is paid in full.
(viii) execute any and all further
documents, agreements and instruments,
and take all such further actions that may
be required under any applicable
law, or which Seller may reasonably
request, to effectuate the transaction
contemplated by this Agreement.
(e) Until the Purchase Price
has been paid in full to Seller, Purchaser
shall use
commercially reasonable efforts
in its sole discretion,
consistent with industry norms in the
foreign currency exchange business,
to maintain net capital in an amount which
is materially greater than that
which is required by applicable regulatory
authorities.
(f) One (1) business day following payment
in full of the Purchase Price by
Purchaser to Seller in
accordance with CFTC Regulations, Seller
hereby
agrees to sell the Retained Interest
to Purchaser, conditioned only upon
payment of $5,000 by Purchaser to Seller
in consideration thereof.
(g) (i) Purchaser represents
and covenants, as the case may be, that (A)
Purchaser is in the process of
registering as a Foreign Exchange Dealer
("FED") pursuant to CFTC
Regulations with the NFA, (B) the CSLA and the
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Note must be
approved by the NFA as a condition
to achieving such
registration, (C) there
exists a remote possibility that the NFA
may
require that the terms of the CSLA and/or
the Note be amended to conform to
its interpretation of
CFTC Regulations, and (D) Purchaser is willing to
close the Sale Transaction without
approval of the CSLA and the Note by the
NFA.
(ii) In consideration of
the foregoing, in the event that: (A) the NFA
requires any amendments
to the Note or the CSLA (which amendments
if
required shall be the "NFA Amendments") as
a condition to FED registration,
the effect of which NFA
Amendments would deny Seller the benefit of
any
portion of the economic bargain made by it
pursuant to this Agreement, the
CSLA and Note, and (B) Seller has a
resulting, reasonable good faith belief
that it has been denied
the economic benefit, or any portion,
of its
bargain as set forth in this
Agreement, the Note and the CSLA, then the
Parties agree to use their good faith
efforts to (x) obtain the referenced
FED registration and not to obstruct or
prevent same, and (y) thereafter to
settle any differences they
may have for a period of no less than 30 days
from the date of notification by the NFA
as to its final position regarding
such CSLA or Note. After such 30 day
period, in the event Seller continues
to have a reasonable good faith
belief that it is being denied any portion
thereof of the economic
benefit bargained for based upon
reasonably
demonstrable facts, then it shall provide
notice to Purchaser describing in
reasonable detail the
economic benefit lost and explaining the
causal
effect between the NFA Amendments required
and the alleged loss of economic
benefit. Purchaser shall
promptly compensate Seller for actual
lost
economic benefit based upon reasonably
detailed evidence thereof.
(h) In the event that
Seller is charged with any tax
liability by
applicable taxing authorities relating to
the Interest Purchased and/or the
Retained Interest which
liability is attributable to any period during or
after the 2009 calendar year (such
period during or after 2009 is the "Tax
Stub Period"), resulting
from income allocated by such
authority or
authorities to the Seller for such
Tax Stub Period, Purchaser shall take
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responsibility for payment of, and shall
make payment with respect to, such
tax liability charged to Seller during
such Tax Stub Period.
5. CLOSING CONDITIONS; DELIVERABLES AT CLOSING; ISSUES WITH THE
REGULATORS.
(a) Preparations for Closing.
(i) Prior to the Closing Date:
(A) Purchaser shall take all
necessary steps as soon as
practicable following the execution of
this Agreement to secure approval of
this transaction by the NFA and such other
U.S. regulatory agencies having
jurisdiction over Purchaser's
business, from which Purchaser would have an
obligation to secure
prior approval if it were a registered FED
(the
"Regulators"); provided, however,
the approval of the Regulators shall not
be a condition to the Closing.
(B) Seller shall prepare and
file with the Securities and
Exchange Commission ("SEC") as
promptly as practical following the date of
this Agreement, but in no
event later than thirty (30) days
following
execution of this
Agreement, an information
statement meeting the
requirements of Regulation 14C under
the Securities Exchange Act of 1934,
as amended, with respect to approval
of this Agreement by written consent
of the holders of a
majority of Seller's outstanding shares of
common
stock.
(C) Purchaser shall draft an Amended
and Restated Operating
Agreement and shall
deliver same to Seller for its review and
approval
prior to the Closing
Date, which approval shall not be
unreasonably
withheld.
(b) Mutual Conditions to Closing
(i) At the Closing Date:
(A) there shall not be in effect any
injunction, restraining
order or decree of any nature of any
governmental entity that prohibits or
materially restricts the
consummation of the transactions contemplated
hereby; provided, however, that the
benefits of this Section 5(b) shall not
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be available to a Party whose failure to
fulfill its obligations hereunder
shall have been the cause of, or shall
have resulted in, such injunction,
restraining order or decree; and
(B) the conditions set forth below shall have
been met by both
Parties.
(c) Conditions to the Obligations of the
Purchaser. The obligations of the
Purchaser to consummate
the Sale Transaction shall be subject to
the
satisfaction or waiver by Purchaser
at or prior to the Closing Date of the
following conditions:
(i) the representations
and warranties of the Seller contained in
this
Agreement shall be true and correct
at and as of the date hereof and as of
the Closing Date (except that those
representations and warranties which
address matters only as of a
particular date shall remain true and correct
as of such date);
(ii) Seller shall have performed and
complied in all material respects with
all of its obligations
required by this Agreement to be
performed or
complied with at or prior to the Closing
Date; and
(iii) the Seller shall have delivered to
Purchaser:
(A) a certificate executed by an executive
officer of Seller,
dated as of the Closing Date,
certifying that the conditions specified in
subsection 5 (b)(i) above have been
satisfied and that the representations
in Section 2 hereof are true and correct
as of the Closing Date;
(B) any existing certificate or certificates
representing the
Interest owned by Seller;
(C) the Mutual General Release duly authorized
and executed by
the Seller Parties as
defined therein in the form attached hereto
as
Exhibit A;
(D) the CSLA and the Note duly authorized and executed by
Seller;
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(E) evidence of approval of the sale of
the Interest by the
Seller reasonably satisfactory to
Purchaser, including: (i) a resolution of
the board of directors of the Seller
approving the sale of the Interest,
(ii) appropriate disclosure, solicitation
of the stockholders of Seller and
evidence of approval of the sale of
the Interest by the stockholders of
Seller, in accordance with
applicable law, including an executed written
consent with respect to
this Agreement and the CSLA and Note from the
majority of Seller's shares
outstanding and written notice that Seller has
complied with all requirements of
Regulation 14C of the Securities Exchange
Act of 1934, as
amended, with respect to timely
distribution of an
information statement to its
stockholders at least twenty (20) days prior
to the Closing Date ;
(F) a legal opinion from counsel
to the Seller reasonably
satisfactory to the Purchaser
opining: (i) as to the valid, binding and
enforceable nature of this Agreement; (ii)
that due corporate authorization
has been obtained by Seller; and
(iii) that all corporate acts have been
taken thereby in accordance
with applicable law to consummate the Sale
Transaction;
(G) written evidence of approval by the shareholders of Seller
of
this Agreement, the CSLA, the Note and
this Agreement;
(H) a signed joinder to the Amended
and Restated Operating
Agreement of the Company; and
(I) other documentation reasonably requested which is
reasonably
satisfactory to the Purchaser
reducing Seller's interest in Purchaser to
the Retained Interest, the nature of
which documentation Purchaser shall
describe to Seller in writing no less than
two (2) business days before the
scheduled Closing Date.
(d) Conditions to the Obligations of
Seller. The obligations of the Seller
to consummate the Sale Transaction
shall be subject to the satisfaction or
waiver by Seller at
or prior to the Closing Date of
the following
conditions:
(i) the
Purchaser shall have delivered to Seller:
15
<PAGE>
(A) the Mutual General Release duly
executed by Purchaser,
Tradition North America, Inc,
Max Q Investments, LLC, Emil Assentato and
Joseph Botkier, in the form attached
hereto as Exhibit A;
(B) the CSLA duly executed by the Purchaser;
(C) the Note duly executed by the Purchaser;
(D) a certificate executed by
the Managing Member of the
Purchaser certifying to
the approval of the Sale
Transaction by the
Purchaser's Board of Managers;
(E) legal opinion from counsel to
the Purchaser reasonably
satisfactory to the
Seller opining: (i) as to the valid,
binding and
enforceable nature of this
Agreement; (ii) that due authorization has been
obtained by Purchaser; and (iii)
that all required corporate actions and
approvals have been taken thereby
in accordance with applicable law to
consummate the Sale Transaction,
with the exception of obtaining approval
of the Note, the CSLA, and if necessary
this Agreement, by the Regulators;
(F) a certificate signed by an executive officer of the
Purchaser
certifying that the
representations and warranties set forth in Section 3
&n
