SHELL ACQUISITION AGREEMENT
This SHELL ACQUISITION AGREEMENT dated as of December 28, 2001 (this
Agreement) is by and between Trivantage Group, Inc., a Nevada corporation
(TVGE), Sitestar corporation, a shareholder of TVGE which is the owner of
176,660,280 shares (the TVGE Shares) representing approximately 90% of all of
the issued and outstanding common stock (the Shareholders) and Proteo, Inc., a
Nevada corporation (Proteo).
The respective Boards of Directors of TVGE and Proteo and the Shareholder
deem it advisable and in the best interests of their corporations and the
respective shareholders of their corporations that Proteo acquire securities of
TVGE in accordance with the terms and conditions of this Reorganization and
Stock Purchase Agreement.
1. Pre-Closing Actions of TVGE. Immediately upon execution of this
Agreement and prior to any Closing as set forth herein, the Shareholder shall
cause TVGE and TVGE shall undertake the following actions:
The Board of Directors of TVGE shall unanimously approve and deliver
resolutions with respect to approval of (a) a one for one hundred fifty reverse
stock split of its shares such that the total issued and outstanding shares
subsequent to the reverse stock split shall be approximately 1,306,667 shares;
(b) approving the transaction set forth herein; (c) electing six persons to the
board of directors of TVGE and (d) approving a name change of the corporation to
Proteo, Inc. contingent upon completion of the Closing herein.
TVGE shall undertake a transaction or transactions pursuant to which the
assets and business of TVGE will be taken out of TVGE. TVGE anticipates that
such transaction such be completed by the acquisition of the assets in
consideration for outstanding obligations. TVGE acknowledges and agrees that
subsequent to such transaction or transactions, the total liabilities of TVGE
shall not exceed $500 prior to the Closing;
The Shareholder shall forward to Xxxxxx Law Group in escrow the TVGE Shares
to be delivered at the Closing, together with medallion guaranteed stock powers
sufficient to transfer such shares (the Escrowed TVGE Shares).
The Shareholder shall forward to Xxxxxx Law Group in escrow the original
copy of that certain Stock Purchase Agreement dated as of July 30, 2001, between
Wellington Capital Management and Sargasso Partners, LLC (the Option),
permitting the purchase of up to 10,053,920 shares of common stock (pre-split)
of TVGE.
The Shareholder and Wellington Capital Managemetn shall forward to Xxxxxx
Law Group in escrow a fully-executed copy of that certain Settlement Agreement
dated as of December 27, 2001 reflecting resolution of any and all disputes
relating to the Option and that certain Consulting Agreement dated as of July
11, 2001 (the Settlement).
The Shareholder shall forward or direct Sargasso Partners LLC to forward to
Xxxxxx Law Group in escrow 10,053,920 shares (the Option Shares), together with
medallion guaranteed stock powers sufficient to transfer the Option Shares to a
third party investor.
Proteo shall deliver to Xxxxxx Law Group in escrow $500,000 in immediately
available funds necessary to complete the Closing. A third party independent
and unrelated investor identified by Proteo shall also deliver to Xxxxxx Law
Group in escrow a total of $55,000 in additional funds to exercise the Option
and acquire the Option Shares
2. At the Closing.
Immediately prior to the Closing, the Shareholder shall be the owners of or
otherwise represent not less than 176,660,280 shares of the issued and
outstanding shares of common stock of TVGE consisting of approximately 90% of
the then issued and outstanding Shares. At the Closing, Wellington Capital
Management (Wellington) shall receive by wire transfer on behalf of the
Shareholders an aggregate of $325,000.00 in immediately available funds (the
Wellington Proceeds). At the Closing, Sargasso Partners LLC shall receive by
wire transfer $230,000 in immediately available funds (the Sargasso Proceeds,
and, together with the Wellington Proceeds, the Cash Proceeds). The parties
hereto understand and agree that the Sargasso Proceeds reflect $55,000 to
exercise and option the Option Shares on behalf of the third party investor
identified by Proteo and the balance paid to Sargasso reflects amounts due and
payable in connection with the Settlement Agreement. On or before the Closing
Date, the Board of Directors of TVGE will deliver to Proteo the corporate
records of TVGE.
3. Timing of Closing. The Closing shall occur upon the satisfaction of
the conditions set forth in this Agreement and upon instructions from the
parties hereto to the Escrow Agent. The Closing Date shall occur on December
30, 2001 unless the Escrow Agent receives instructions otherwise from the
parties or notice from a party that the conditions set forth herein have not
occurred. In the event the Closing does not occur on or before January 4, 2002
(unless otherwise extended in writing by the parties), the Escrow Agent shall
return the Escrowed TVGE Shares to the Shareholder; shall return the Option to
the Shareholder, shall release $500,000 back to Proteo and shall release $55,000
back to the third party investor.
4. Representations of TVGE and the Shareholder. Each of TVGE and the
Shareholder individually and not jointly or severally represent and warrant as
follows:
(a) Ownership of Shares. As of the Closing Date the Shareholder will
be sole owner of the Escrowed TVGE Shares appearing of record in its name. The
Escrowed TVGE Shares will be free from claims, liens or other encumbrances and,
the Shareholder will have the unqualified and unrestricted right to transfer
such Escrowed TVGE Shares except as provided under applicable federal and state
securities laws;
(b) Fully paid and Nonassessable. The Escrowed TVGE Shares constitute
duly and validly issued shares of TVGE, and are fully paid and nonassessable,
and they further represent that they have the power and the authority to execute
this Agreement and to perform the obligations contemplated hereby;
(c) Organization of TVGE; Authorization. TVGE is a corporation duly
organized, validly existing and in good standing under the laws of Nevada with
full corporate power and authority to execute and deliver this Agreement and to
perform its obligations hereunder. The execution, delivery and performance of
this Agreement have been duly authorized by all necessary corporate action of
TVGE and this Agreement constitutes a valid and binding obligation of TVGE;
enforceable against it in accordance with its terms.
(d) Capitalization. The authorized capital stock of TVGE consists of
300,000,000 shares of common stock, par value $0.001 per share, and 10,000,000
shares of preferred stock. As of the date of this Agreement, TVGE has
196,000,000 shares of common stock issued and outstanding and no shares of
preferred stock issued and outstanding. TVGE has issued two certificates for an
additional 17,857,142 shares each but those certificates have been sent to the
transfer agent for cancellation. TVGE and the Shareholder represent that such
additional shares shall be cancelled prior to closing and TVGE shall forward
evidence acceptable to the Escrow Agent of such cancellation prior to Closing.
No shares have otherwise been registered under state or federal securities laws.
As of the Closing Date, all of the issued and outstanding shares of common stock
of TVGE are validly issued, fully paid and non-assessable and, other than the
Option, there is not and as of the Closing Date there will not be outstanding
any warrants, options or other agreements on the part of TVGE obligating TVGE to
issue any additional shares of common or preferred stock or any of its
securities of any kind. TVGE will not issue any shares of capital stock from
the date of this Agreement through the Closing Date. TVGE is a reporting
company in accordance with Section 12(b) or 12(g) of the Securities Act of 1934,
as amended (the Exchange Act), and has filed all required and/or appropriate
annual, periodic and other reports required under the Exchange Act with the
Securities and Exchange Commission. The Common Stock of TVGE is presently
listed and trading on the OTCBB under the symbol TVGE.
(e) Ownership of TVGE Shares. The delivery of certificates provided
herein for both the Escrowed Shares and the Option Shares will result in the
Proteos or assigns, the Escrow Agents or the shareholders of Proteo, as the
case may be, immediate acquisition of record and beneficial ownership of the
Escrowed TVGE Shares and the Option Shares, free and clear of all Encumbrances
other than as required by Federal and State securities laws. Except with respect
to the Option, there are no outstanding options, rights, conversion rights,
agreements or commitments of any kind relating to the issuance, sale or transfer
of any Equity Securities or other securities of TVGE.
(f) No Conflict as to TVGE and Subsidiaries. Neither the execution and
delivery of this Agreement nor the consummation of the sale of the TVGE Shares
will (a) violate any provision of the certificate of incorporation or by-laws
(or other governing instrument) of TVGE or any of its Subsidiaries or (b)
violate, or be in conflict with, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required by, or
excuse performance by any Person of any of its obligations under, or cause the
acceleration of the maturity of any debt or obligation pursuant to, or result in
the creation or imposition of any Encumbrance upon any property or assets of
TVGE or any of its Subsidiaries under, any material agreement or commitment to
which TVGE or any of its Subsidiaries is a party or by which any of their
respective property or assets is bound, or to which any of the property or
assets of TVGE or any of its Subsidiaries is subject, or (c) violate any
statute or law or any judgment, decree, order, regulation or rule of any court
or other Governmental Body applicable to TVGE or any of its Subsidiaries except,
in the case of violations, conflicts, defaults, terminations, accelerations or
Encumbrances described in clause (b) of this Section for such matters which are
not likely to have a material adverse effect on the business or financial
condition of TVGE and its Subsidiaries, taken as a whole.
(g) Consents and Approvals of Governmental Authorities. Other than a
filing under Rule 14f-1, no consent, approval or authorization of, or
declaration, filing or registration with, any Governmental Body is required to
be made or obtained by TVGE or any of either of their Subsidiaries in connection
with the execution, delivery and performance of this Agreement by TVGE or the
consummation of the sale of the TVGE Shares.
(h) Other Consents. No consent of any Person is required to be obtained
by TVGE to the execution, delivery and performance of this Agreement or the
consummation of the sale of the TVGE Shares, including, but not limited to,
consents from parties to leases or other agreements or commitments, except for
any consent which the failure to obtain would not be likely to have a material
adverse effect on the business and financial condition of TVGE.
(i) Financial Statements. TVGE has delivered to the Proteo consolidated
balance sheets of TVGE and its Subsidiaries as at December 31, 2000, December
31, 1999, and statements of income and changes in financial position for each of
the years in the two-year periods then ended, together with the report thereon
of TVGEs Stonefield Xxxxxxxxx, Inc., independent accountants, and the interim
financial statements of TVGE as at March 31, 2001, June 30, 2001 and September
30, 2001 (the TVGE Financial Statements). Such TVGE Financial Statements and
notes fairly present the consolidated financial condition and results of
operations of TVGE and its Subsidiaries as at the respective dates thereof and
for the periods therein referred to, all in accordance with generally accepted
United States accounting principles consistently applied throughout the periods
involved, except as set forth in the notes thereto, and shall be utilizable in
any SEC filing in compliance with Rule 310 of Regulation S-B promulgated under
the Securities Act. TVGE has delivered or otherwise made available to Proteo
copies of all annual, quarterly and other periodic reports filed by TVGE with
the SEC in accordance with the Exchange Act.
(j) Title to Properties. Either TVGE or one of its Subsidiaries owns all
the material properties and assets that they purport to own (real, personal and
mixed, tangible and intangible), including, without limitation, all the material
properties and assets reflected in the TVGE Financial Statements and all the
material properties and assets purchased or otherwise acquired by TVGE or any
of its Subsidiaries since the date of the TVGE Financial Statements. All
properties and assets reflected in the TVGE Financial Statements are free and
clear of all material Encumbrances and are not, in the case of real property,
subject to any material rights of way, building use restrictions, exceptions,
variances, reservations or limitations of any nature whatsoever except, with
respect to all such properties and assets, (a) mortgages or security interests
shown on the TVGE Financial Statements as securing specified liabilities or
obligations, with respect to which no default (or event which, with notice or
lapse of time or both, would constitute a default) exists, (b) mortgages or
security interests incurred in connection with the purchase of property or
assets after the date of the TVGE Financial Statements (such mortgages and
security interests being limited to the property or assets so acquired), with
respect to which no default (or event which, with notice or lapse of time or
both, would constitute a default) exists, (c) as to real property, (i)
imperfections of title, if any, none of which materially detracts from the value
or impairs the use of the property subject thereto, or impairs the operations of
TVGE or any of its Subsidiaries and (ii) zoning laws that do not impair the
present or anticipated use of the property subject thereto, and (d) liens for
current taxes not yet due. The properties and assets of TVGE and its
Subsidiaries include all rights, properties and other assets necessary to permit
TVGE and its Subsidiaries to conduct TVGEs business in all material respects in
the same manner as it is conducted on the date of this Agreement.
(k) Buildings, Plants and Equipment. The buildings, plants, structures and
material items of equipment and other personal property owned or leased by TVGE
or its Subsidiaries are, in all respects material to the business or financial
condition of TVGE and its Subsidiaries, taken as a whole, in good operating
condition and repair (ordinary wear and tear excepted) and are adequate in all
such respects for the purposes for which they are being used. TVGE has not
received notification that it or any of its Subsidiaries is in violation of any
applicable building, zoning, anti-pollution, health, safety or other law,
ordinance or regulation in respect of its buildings, plants or structures or
their operations, which violation is likely to have a material adverse effect on
the business or financial condition of TVGE and its Subsidiaries, taken as a
whole or which would require a payment by TVGE or any of its subsidiaries in
excess of $2,000 in the aggregate, and which has not been cured.
(l) No Condemnation or Expropriation. Neither the whole nor any portion of
the property or leaseholds owned or held by TVGE or any of its Subsidiaries is
subject to any governmental decree or order to be sold or is being condemned,
expropriated or otherwise taken by any Governmental Body or other Person with or
without payment of compensation therefor, which action is likely to have a
material adverse effect on the business or financial condition of TVGE and its
Subsidiaries, taken as a whole.
(m) Litigation. There is no action, suit, inquiry, proceeding or
investigation by or before any court or Governmental Body pending or threatened
in writing against or involving TVGE or any of its Subsidiaries which is likely
to have a material adverse effect on the business or financial condition of
TVGE and any of its Subsidiaries, taken as whole, or which would require a
payment by TVGE or its subsidiaries in excess of $2,000 in the aggregate or
which questions or challenges the validity of this Agreement. Neither TVGE nor
any or its Subsidiaries is subject to any judgment, order or decree that is
likely to have a material adverse effect on the business or financial condition
of TVGE or any of its Subsidiaries, taken as a whole, or which would require a
payment by TVGE or its subsidiaries in excess of $2,000 in the aggregate.
(n) Absence of Certain Changes. Since the date of the TVGE Financial
Statements, neither TVGE nor any of its Subsidiaries has:
1. suffered the damage or destruction of any of its properties or assets
(whether or not covered by insurance) which is materially adverse to the
business or financial condition of TVGE and its Subsidiaries, taken as a whole,
or made any disposition of any of its material properties or assets other than
in the ordinary course of business;
2. made any change or amendment in its certificate of incorporation or
by-laws, or other governing instruments;
3. issued or sold any Equity Securities or other securities, acquired,
directly or indirectly, by redemption or otherwise, any such Equity Securities,
reclassified, split-up or otherwise changed any such Equity Security, or granted
or entered into any options, warrants, calls or commitments of any kind with
respect thereto;
4. organized any new Subsidiary or acquired any Equity Securities of any
Person or any equity or ownership interest in any business;
5. borrowed any funds or incurred, or assumed or become subject to, whether
directly or by way of guarantee or otherwise, any obligation or liability with
respect to any such indebtedness for borrowed money;
6. paid, discharged or satisfied any material claim, liability or obligation
(absolute, accrued, contingent or otherwise), other than in the ordinary course
of business;
7. prepaid any material obligation having a maturity of more than 90 days
from the date such obligation was issued or incurred;
8. canceled any material debts or waived any material claims or rights,
except in the ordinary course of business;
9. disposed of or permitted to lapse any rights to the use of any material
patent or registered trademark or copyright or other intellectual property owned
or used by it;
10. granted any general increase in the compensation of officers or
employees (including any such increase pursuant to any employee benefit plan);
11. purchased or entered into any contract or commitment to purchase any
material quantity of raw materials or supplies, or sold or entered into any
contract or commitment to sell any material quantity of property or assets,
except (i) normal contracts or commitments for the purchase of, and normal
purchases of, raw materials or supplies, made in the ordinary course business,
(ii) normal contracts or commitments for the sale of, and normal sales of,
inventory in the ordinary course of business, and (iii) other contracts,
commitments, purchases or sales in the ordinary course of business;
12. made any capital expenditures or additions to property, plant or
equipment or acquired any other property or assets (other than raw materials and
supplies) at a cost in excess of $2,000 in the aggregate;
13. written off or been required to write off any notes or accounts
receivable in an aggregate amount in excess of $2,000;
14. written down or been required to write down any inventory in an
aggregate amount in excess of $ 2,000;
15. entered into any collective bargaining or union contract or agreement;
or
16. other than the ordinary course of business, incurred any liability
required by generally accepted accounting principles to be reflected on a
balance sheet and material to the business or financial condition of TVGE and
its subsidiaries taken as a whole.
(o) No Material Adverse Change. Since the date of the TVGE Financial
Statements, there has not been any material adverse change in the business or
financial condition of TVGE and its Subsidiaries taken as a whole. The TVGE
SEC filings contain all material information with respect to the business,
financial condition and operations of TVGE.
(p) Contracts and Commitments. Neither TVGE nor any of its Subsidiaries
is a party to any:
1. Contract or agreement (other than purchase or sales orders entered into
in the ordinary course of business) involving any liability on the part of TVGE
or one of its Subsidiaries of more than $2,000 and not cancelable by TVGE or
the relevant Subsidiary (without liability to TVGE or such Subsidiary) within 60
days. TVGE has delivered to Proteo or the Escrow Agent copies of any and all
agreements, arrangements, contracts or other matters relating to TVGE.
2. Lease of personal property involving annual rental payments in excess of
$2,000 and not cancelable by TVGE or the relevant Subsidiary (without liability
to TVGE or such Subsidiary) within 90 days;
3. Employee bonus, stock option or stock purchase, performance unit,
profit-sharing, pension, savings, retirement, health, deferred or incentive
compensation, insurance or other material employee benefit plan (as defined in
Section 2(3) of ERISA) or program for any of the employees, former employees or
retired employees of TVGE or any of its Subsidiaries;
4. Commitment, contract or agreement that is currently expected by the
management of TVGE to result in any material loss upon completion or performance
thereof;
5. Contract, agreement or commitment that is material to the business of
TVGE and its Subsidiaries, taken as a whole, with any officer, employee, agent,
consultant, advisor, salesman, sales representative, value added reseller,
distributor or dealer; or
6. Employment agreement or other similar agreement that contains any
severance or termination pay, liabilities or obligations.
All such contracts and agreements are in full force and effect. Neither TVGE nor
any or its Subsidiaries is in breach of, in violation of or in default under,
any agreement, instrument, indenture, deed of trust, commitment, contract or
other obligation of any type to which TVGE or any of its Subsidiaries is a party
or is or may be bound that relates to the business of TVGE or any of its
Subsidiaries or to which any of the assets or properties of TVGE or any of its
Subsidiaries is subject, the effect of which breach, violation or default is
likely to materially and adversely affect the business or financial condition of
TVGE and its Subsidiaries, taken as a whole.
(q) Labor Relations. Neither TVGE nor any of its Subsidiaries is a
party to any collective bargaining agreement. Except for any matter which is not
likely to have a material adverse effect on the business or financial condition
of TVGE and its Subsidiaries, taken as a whole, (a) TVGE and each of its
Subsidiaries is in compliance with all applicable laws respecting employment and
employment practices, terms and conditions of employment and wages and hours,
and is not engaged in any unfair labor practice, (b) there is no unfair labor
practice complaint against TVGE or any of its Subsidiaries pending before the
National Labor Relations Board, (c) there is no labor strike, dispute, slowdown
or stoppage actually pending or threatened against TVGE or any of its
Subsidiaries, (d) no representation question exists respecting the employees of
TVGE or any of its Subsidiaries, (e) neither TVGE nor any of its Subsidiaries
has experienced any strike, work stoppage or other labor difficulty, and (f) no
collective bargaining agreement relating to employees of TVGE or any of its
Subsidiaries is currently being negotiated.
(r) Employee Benefit Plans. No material employee pension and welfare
benefit plans covering employees of TVGE and its Subsidiaries is (1) a
multi-employer plan as defined in Section 3(37) of ERISA, or (2) a defined
benefit plan as defined in Section 3(35) of ERISA, any listed individual account
pension plan is duly qualified as tax exempt under the applicable sections of
the Code, each listed benefit plan and related funding arrangement, if any, has
been maintained in all material respects in compliance with its terms and the
provisions of ERISA and the Code.
(s) Compliance with Law. The operations of TVGE and its Subsidiaries
have been conducted in accordance with all applicable laws and regulations of
all Governmental Bodies having jurisdiction over them, except for violations
thereof which are not likely to have a material adverse effect on the business
or financial condition of TVGE and its Subsidiaries, taken as a whole, or which
would not require a payment by TVGE or its Subsidiaries in excess of $2,000 in
the aggregate, or which have been cured. Neither TVGE nor any of its
Subsidiaries has received any notification of any asserted present or past
failure by it to comply with any such applicable laws or regulations. TVGE and
its Subsidiaries have all material licenses, permits, orders or approvals from
the Governmental Bodies required for the conduct of their businesses, and are
not in material violation of any such licenses, permits, orders and approvals.
All such licenses, permits, orders and approvals are in full force and effect,
and no suspension or cancellation of any thereof has been threatened.
(t) Tax Matters.
1. TVGE and each of its Subsidiaries (1) shall file prior to Closing all
nonconsolidated and noncombined Tax Returns and all consolidated or combined Tax
Returns that include only TVGE and/or its Subsidiaries and not Seller or its
other Affiliates (for the purposes of this Section, such tax Returns shall be
considered nonconsolidated and noncombined Tax Returns) required to be filed
through the date hereof and will have paid any Tax due through the date hereof
with respect to the time periods covered by such nonconsolidated and noncombined
Tax Returns and shall timely pay any such Taxes required to be paid by it after
the date hereof with respect to such Tax Returns and (2) shall prepare and
timely file all such nonconsolidated and noncombined Tax Returns required to be
filed after the date hereof and through the Closing Date and pay all Taxes
required to be paid by it with respect to the periods covered by such Tax
Returns; (B) all such Tax Returns filed pursuant to clause (A) after the date
hereof shall, in each case, be prepared and filed in a manner consistent in all
material respects (including elections and accounting methods and conventions)
with such Tax Return most recently filed in the relevant jurisdiction prior to
the date hereof, except as otherwise required by law or regulation. Any such
Tax Return filed or required to be filed after the date hereof shall not reflect
any new elections or the adoption of any new accounting methods or conventions
or other similar items, except to the extent such particular reflection or
adoption is required to comply with any law or regulation.
2. TVGE represents that prior to Closing, all consolidated or combined Tax
Returns (except those described in subparagraph (1) above) required to be filed
by any person through the date hereof that are required or permitted to include
the income, or reflect the activities, operations and transactions, of TVGE or
any of its Subsidiaries for any taxable period shall have been timely filed, and
the income, activities, operations and transactions of TVGE and Subsidiaries
shall have been properly included and reflected thereon. TVGE shall prepare and
file, or cause to be prepared and filed, all such consolidated or combined Tax
Returns that are required or permitted to include the income, or reflect the
activities, operations and transactions, of TVGE or any Subsidiary, with
respect to any taxable year or the portion thereof ending on or prior to the
Closing Date, including, without limitation, TVGEs consolidated federal income
tax return for such taxable years. TVGE will timely file a consolidated federal
income tax return for the taxable year ended December 31, 2001 and such return
shall include and reflect the income, activities, operations and transactions of
TVGE and Subsidiaries for the taxable period then ended, and hereby expressly
covenants and agrees to file a consolidated federal income tax return, and to
include and reflect thereon the income, activities, operations and transactions
of TVGE and Subsidiaries for the taxable period through the Closing Date. All
Tax Returns filed pursuant to this subparagraph (2) after the date hereof shall,
in each case, to the extent that such Tax Returns specifically relate to TVGE or
any of its Subsidiaries and do not generally relate to matters affecting other
members of TVGEs consolidated group, be prepared and filed in a manner
consistent in all material respects (including elections and accounting methods
and conventions) with the Tax Return most recently filed in the relevant
jurisdictions prior to the date hereof, except as otherwise required by law or
regulation. TVGE has paid or will pay all Taxes that may now or hereafter be
due with respect to the taxable periods covered by such consolidated or combined
Tax Returns.
3. Neither TVGE nor any of its Subsidiaries has agreed, or is required, to
make any adjustment (x) under Section 481(a) of the Code by reason of a change
in accounting method or otherwise or (y) pursuant to any provision of the Tax
Reform Act of 1986, the Revenue Act of 1987 or the Technical and Miscellaneous
Revenue Act of 1988.
4. Neither TVGE nor any of its Subsidiaries or any predecessor or Affiliate
of the foregoing has, at any time, filed a consent under Section 341(f)(1) of
the Code, or agreed under Section 341(f)(3) of the Code, to have the provisions
of Section 341(f)(2) of the Code apply to any sale of its stock.
5. There is no (nor has there been any request for an) agreement, waiver or
consent providing for an extension of time with respect to the assessment of any
Taxes attributable to TVGE or its Subsidiaries, or their assets or operations
and no power of attorney granted by TVGE or any of its Subsidiaries with respect
to any Tax matter is currently in force.
6. There is no action, suit, proceeding, investigation, audit, claim,
demand, deficiency or additional assessment in progress, pending or threatened
against or with respect to any Tax attributable to TVGE, its Subsidiaries or
their assets or operations.
7. All amounts required to be withheld as of the Closing Date for Taxes or
otherwise have been withheld and paid when due to the appropriate agency or
authority.
8. No property of TVGE is tax-exempt use property within the meaning of
Section 168(h) of the Code nor property that TVGE and/or its Subsidiaries will
be required to treat as being owned by another person pursuant to Section
168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect
immediately prior to the enactment of the Tax Reform Act of 1986.
9. There shall be delivered or made available to the Proteo at or prior to
Closing true and complete copies of all income Tax Returns (or with respect to
consolidated or combined returns, the portion thereof) and any other Tax Returns
requested by the Proteo as may be relevant to TVGE, its Subsidiaries, or their
assets or operations for any and all periods ending after December 31, 1998, or
for any Tax years which are subject to audit or investigation by any taxing
authority or entity.
10. There is no contract, agreement, plan or arrangement, including but not
limited to the provisions of this Agreement, covering any employee or former
employee of TVGE or its Subsidiaries that, individually or collectively, could
give rise to the payment of any amount that would not be deductible pursuant to
Section 280G or 162 of the Code.
(t) Environmental Matters.
1. At all times prior to the date hereof, TVGE and its Subsidiaries have
complied in all material respects with applicable environmental laws, orders,
regulations, rules and ordinances relating to the Properties (as hereinafter
defined), the violation of which would have a material adverse effect on the
business or financial condition of TVGE and its Subsidiaries, taken as a whole,
or which would require a payment by TVGE or its Subsidiaries in excess of
$2,000 in the aggregate, and which have been duly adopted, imposed or
promulgated by any legislative, executive, administrative or judicial body or
officer of any Governmental Body.
2. The environmental licenses, permits and authorizations that are material
to the operations of TVGE and its Subsidiaries, taken as a whole, are in full
force and effect.
3. Neither TVGE nor any of its Subsidiaries has released or caused to be
released on or about the properties currently owned or leased by TVGE or any of
its Subsidiaries (the Properties) any (i) pollutants, (ii) contaminants, (iii)
Hazardous Substances, as that term is defined in Section 101(14) of the
Comprehensive Environmental Response Act, as amended or (iv) Regulated
Substances, as that term in defined in Section 9001 of the Resource Conservation
and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended, which would be
required to be remediated by any governmental agency with jurisdiction over the
Properties under the authority of laws, regulations and ordinances as in effect
and currently interpreted on the date hereof, which remediation would have a
material adverse effect on the business or financial condition of TVGE and its
Subsidiaries, taken as a whole.
(u) Absence of Certain Commercial Practices. Neither TVGE nor any of
its Subsidiaries has, directly or indirectly, paid or delivered any fee,
commission or other sum of money or item of property, however characterized, to
any finder, agent, government official or other party, in the United States or
any other country, which is in any manner related to the business or operations
of TVGE or its Subsidiaries, which TVGE or one of its Subsidiaries knows or has
reason to believe to have been illegal under any federal, state or local laws of
the United States or any other country having jurisdiction; and neither TVGE nor
any of its Subsidiaries has participated, directly or indirectly, in any
boycotts or other similar practices affecting any of its actual or potential
customers in violation of any applicable law or regulation.
(v) Transactions with Directors and Officers. TVGE and its
Subsidiaries do not engage in business with any Person in which any of TVGEs
directors or officers has a material equity interest. No director or officer of
TVGE owns any property, asset or right which is material to the business of TVGE
and its Subsidiaries, taken as a whole.
(w) Borrowing and Guarantees. TVGE and its Subsidiaries (a) do not have
any indebtedness for borrowed money, (b) are not lending or committed to lend
any money (except for advances to employees in the ordinary course of business),
and (c) are not guarantors or sureties with respect to the obligations of any
Person.
(x) Printing Obligation. TVGE acknowledges and represents that it
presently has received an invoice for approximately $9,000 from Xxxxxxx
Corporation reflecting a printing xxxx. TVGE disputes that invoice and
represents that it is presently contesting that obligation. The Shareholder
hereby assumes any and all liability, costs, or other obligations with respect
to such liability and hereby indemnifies Proteo and TVGE with respect to such
obligation.
6. Representations of Proteo. Proteo represents and warrants as follows:
(a) Proteo has taken all necessary corporate action to authorize the
execution of this Agreement and the transactions contemplated hereunder.
(b) Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will violate any provision
of the Articles of Incorporation or Bylaws of Proteo; will violate, conflict
with or result in the breach or termination of or otherwise give any contracting
party the right to terminate or constitute a default under the terms of any
agreement or instrument to which Proteo is a party or by which any of its
property or assets may be bound; will result in the creation of any lien, charge
or encumbrance upon the properties or assets of Proteo, or will violate any
judgment, order, injunction, decree or award against or binding upon Proteo, or
upon its securities, property or business.
7. Prohibited Acts. Except as otherwise expressly set forth herein,
the Shareholder agrees to cause TVGE not to do any of the following things prior
to the Closing Date, and the Shareholder agrees that prior to the Closing Date
it will not request or permit TVGE to do any of the following things:
(a) Declare or pay any dividends or other distributions on its stock or
purchase or redeem any of its stock; or
(b) Issue any stock or other securities, including any rights or
options to purchase or otherwise acquire any of its stock, and shall not issue
any notes or other evidences of indebtedness.
(c) Enter into any agreements or contracts binding TVGE with respect to
any matters.
8. Resignation of Officers and Directors of TVGE. Immediately prior to
the Closing Date, all but one officer and director of TVGE will submit their
resignations. Such remaining officer and director will appoint new management
as directed by Proteo so as to effect an orderly change of control. In
connection therewith, such remaining director shall appoint Xxxxxx Xxxxxx, Xxxxx
Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxx Xx ser, Xxxxxxx Xxxxxxx and Xxxxx Alte to the
Board of Directors of TVGE. After such directors are appointed, the remaining
officer and/or director of TVGE will resign and the Shareholders will
subsequently effectuate the transfer of the Transferred TVGE Shares in
accordance with the Closing.
9. Conditions to the Obligations of Proteo and the Shareholders.
(a) The obligations of Proteo to consummate the transactions
contemplated by this Agreement are subject to the fulfillment, at or before the
Closing Date of the following further conditions: (i) each of the
representations and warranties of the Shareholder and TVGE contained in this
Agreement, or in any written statement, exhibit, addendum, financial statement
or schedule or other document delivered pursuant hereto or in connection with
the transaction contemplated hereby shall be true in all respects as at the
Closing Date, as required specifically herein, as if then made (except to the
extent waived hereunder or as affected by the transactions contemplated hereby);
(ii) the Shareholder and TVGE shall have performed and complied with all
covenants, agreements and conditions required by this Agreement to be performed
or complied with by them prior to at the Closing Date and Proteo shall have been
furnished with a certificate of the President and Treasurer of TVGE dated the
Closing Date certifying in such details as Proteo may reasonably request to the
fulfillment of such conditions; and (iii) all documents and proceedings of the
Shareholder, TVGE and Proteo in connection with the transactions contemplated
hereby shall have been approved as to form and substance by Proteo and its legal
counsel.
(b) All of the representations and warranties of TVGE and the
Shareholder contained in this Agreement, or any exhibit thereto shall have been
acknowledged by the Shareholder and TVGE and shall be true in all material
respects on the Closing Date as if then made. All such representations and
warranties shall survive the Closing Date of this transaction.
(c) Proteo shall have completed to its reasonable satisfaction a due
diligence investigation of the books, records, assets and properties of TVGE and
shall not have found anything which would adversely impact on the financial
condition, operations or status of TVGE in the sole and absolute discretion of
Proteo.
10. Conditions to the Obligations of TVGE and the Shareholder.
(a) The obligations of TVGE and the Shareholder to consummate the
transactions contemplated by this Agreement are subject to the fulfillment, at
or before the Closing Date, of the following further conditions; (i) each of the
representations and warranties of Proteo contained in this Agreement or in any
written statement, exhibit, addendum, financial statement or schedule or other
document delivered pursuant hereto or in connection with the transactions
contemplated hereby shall be true in all respects as at the Closing Date, as if
then made (except to the extent waived hereunder or as affected by the
transactions contemplated hereby); and (ii) Proteo shall have performed and
complied with all covenants, agreements and conditions required by this
Agreement to be performed or complied with by them prior to the Closing Date
(including without limitation the payment set forth herein).
11. Notices. Any notice which any of the parties hereto may desire
to serve upon any of the other parties hereto shall be in writing and shall be
conclusively deemed to have been received by the party at its address, if
mailed, postage prepaid, United States mail, registered, return receipt
requested, to the following addresses:
If to TVGE or the Shareholder: Wellington Capital Management
00000 Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxx
If to Proteo: c/o Cutler Law Group
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: M. Xxxxxxx Xxxxxx
12. Successors. This Agreement shall be binding upon and inure to
the benefit of the heirs, personal representatives and successors and assigns of
the parties.
13. Choice of Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of California.
14. Counterparts. This Agreement may be signed in one or more
counterparts, all of which taken together shall constitute an entire agreement.
15. Entire Agreement. This Agreement, together with the Exchange
Agreement, sets forth the entire agreement and understanding of the Parties
hereto with respect to the transactions contemplated hereby, and supersedes all
prior agreements, arrangements and understandings related to the subject matter
hereof. No understanding, promise, inducement, statement of intention,
representation, warranty, covenant or condition, written or oral, express or
implied, whether by statute or otherwise, has been made by any Party hereto
which is not embodied in this Agreement or the written statements, certificates,
or other documents delivered pursuant hereto or in connection with the
transactions contemplated hereby, and no party hereto shall be bound by or
liable for any alleged understanding, promise, inducement, statement,
representation, warranty, covenant or condition not so set forth.
16. AttorneysFees Should any action be commenced between the parties
to this Agreement concerning the matters set forth in this Agreement or the
right and duties of either in relation thereto, the prevailing party in such
action shall be entitled, in addition to such other relief as may be granted, to
a reasonable sum as and for its Attorney's Fees and Costs.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
TRIVANTAGE GROUP, INC. PROTEO, INC.,
a Nevada corporation a Nevada corporation
By: /s/ Xxxxxxxxx X. Xxxxxxxx By: /s/ Joerg Alte
Its: Xxxxxxxxx X. Xxxxxxxx, Its: Joerg Alte, President
Executive Chairman
THE SHAREHOLDER (OWNING NOT LESS 176,660,280 OF THE SHARES):
SITESTAR CORPORATION
a Nevada corporation
By: /s/ Xxxxxxxxx X. Xxxxxxxx
Its: Xxxxxxxxx X. Xxxxxxxx,
Executive Chairman
