EXHIBIT 10.4
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made the____ day of November 1997.
BETWEEN:
ACTIVITY LINK, INC., (ALI), a Nevada Corporation to be
formed under the laws of the State of Nevada.
AND:
TRI-NATIONAL RESORT MANAGEMENT, INC., (TNRM) a Nevada
Corporation, a subsidiary of Tri-National Development
Corp.,("TND"), a corporation incorporated under the
laws of Wyoming and both entities having offices at
Suite 140, 000 Xxxxxx xxx Xxx X., Xxx Xxxxx, Xxxxxxxxxx
00000.
WHEREAS:
A. "ALI" owns intellectual rights to a resort and leisure reservation
service, which allows hotel guests to obtain reservations for leisure
activities through an entirely automated system utilizing the
company's automated proprietary network, and
B. "ALI" wishes to sell, and "TNRM" wishes to purchase an 85% interest in
"ALI" and the assets including the intellectual rights to the
company's automated network and the business to be operated by "ALI"
on the terms and conditions set out in this agreement,
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
premises and the covenants, agreements, representations, warranties and
payments set out and provided for in this Agreement the parties hereto
covenant and agree with each other as follows:
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ARTICLE 1
INTERPRETATION
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1.1 DEFINITIONS In this Agreement, the following capitalized words and
phrases shall have the meaning set forth in this section 1.1:
(a) "Assets" shall have the meaning set out in section 2. 1;
(b) "Business" means the automated network business carried on by
"ALI" under the name Activity Link, Inc.,
(c) "Closing" means the completion of the purchase and sale
transaction herein contemplated and "Closing Date" means the date
on which the Closing is scheduled to occur, in each case as
provided in Section 6.1.
(d) "Effective Date" means the opening of business on November 14,
1997;
(e) "Excluded Assets" means the business and assets of "ALI" which
are to be excluded from the purchase and sale contemplated
herein as described in section 2.2;
(f) "Fixed Assets" means the equipment, and other assets described in
subsection 2.1(a);
(g) "Goodwill shall have the meaning set out in subsection 2. 1 (b);
(h) "Material Contracts" shall have the meaning set out in subsection
2. 1 (c);
(i) "Purchase Price" means the amount payable by "TNRM" to "ALI" for
the Assets as set out in this Agreement;
1.2 SCHEDULES. The following Schedules to this Agreement are incorporated
herein by reference and are deemed to be part of this Agreement'.
Schedule A - Fixed Assets
Schedule B - Material Contracts
Schedule C - Employees
Schedule D - Form of Management Agreement
1.3 SECTIONS AND HEADINGS. The division of this Agreement into Articles,
sections, subsections and paragraphs and the insertion of headings is
for the convenience of reference only and shall not affect the
interpretation or construction of this Agreement.
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1.4 BUSINESS DAY. Where used in this Agreement, the term "business day"
means any day other than Saturday, Sunday or any statutory holiday.
1.5 CURRENCY. Except as otherwise stated herein, all dollar amounts
referred to in this Agreement shall be in lawful currency of the
United States.
1.6 GENDER, ETC. Words importing the masculine, feminine or neuter gender
shall be interpreted to include all genders and words in the singular
include the plural and vice versa, unless the context requires
otherwise.
1.7 STATUTES. References to statutes or statutory provisions shall be
construed as references to those statutes or provisions as amended or
re-enacted (whether with or without amendment) from time to time or as
their application is modified (whether before or after the date of
this Agreement) and shall include any statute or statutory provisions
of which they are re-enactments (whether with or without amendment)
and any orders, regulations, instruments or other subordinate
legislation made under the relevant statute or statutory provisions.
1.8 AGREEMENT REFERENCES. The term "Agreement" means this agreement,
including Schedules, as amended or modified from time to time, and the
words "herein", "hereof', "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular
Article, section, paragraph or other part of this Agreement, and any
reference contained in this agreement to a particular "Article",
"section", "paragraph" or "schedule" is to the particular Article,
section or paragraph of this Agreement or schedule to this Agreement.
ARTICLE 2
PURCHASE AND SALE OF ASSETS
---------------------------
2.1 DESCRIPTION OF ASSETS. On the terms and subject to the condition
hereof, "ALI" shall sell, assign and transfer to "TNRM", and "TNRM"
shall purchase from "ALI", at the Closing but effective as of and from
the Effective Date, the undertaking and the following property and
assets used in the Business on a going concern basis, free and clear
of all liens, claims, charges, mortgages and other security interests
and encumbrances whatsoever;
(a) all equipment, apparatus, machinery, furniture, furnishings,
appliances, accessories, fixtures, supplies and other goods and
chattels described in Schedule A ("Fixed Assets");
(b) all of the accounts receivable, trade accounts, notes receivable,
deposits and other debts owned, due or accruing due to "ALI" and
which have been outstanding for less than 90 days as described in
Schedule B to this Agreement (the "Accounts Receivable");
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(c) all right, title and interest of "ALI" in and to those contracts,
leases and agreements listed in Schedule C hereto to the extent
the same are assignable or transferable (the "Material
Contracts");
(d) the goodwill of the Business, including without limitation all
trade marks, trade names, trade secrets and intellectual rights
relating to the Business, all lists of customers and suppliers,,
sales records, brochures, samples, price lists and other
information relating to the day to day operation of the Business,
and the exclusive right to carry on the Business under the name
Activity Link, Inc. (collectively, the "Goodwill");
(e) all pre-paid expenses of the Business,
all of which properties and assets are collectively referred to
herein as the "Assets",
2.2 EXCLUDED ASSETS.. There shall be specifically excluded from the
purchase and sale herein and from the Assets described in section 2.1
and in Schedules A and B hereto, the Following
(a) any specific items or other assets as may be agreed to be
excluded by the parties prior to Closing.
2.3 LIABILITIES. "TNRM" shall not assume or be responsible for any
liabilities or obligations of "ALI" relating to the Business or
otherwise other than for the obligations of "ALI" contained in the
Material Contracts arising in respect of the period after the
effective Date.
ARTICLE 3
PURCHASE PRICE AND PAYMENT
--------------------------
3.1 PURCHASEPRICE. The Purchase Price and payment for the Assets and
equity described herein shall be as follows:
(a) "TNRM" shall cause funds in the amount of $228,000 to be
available to "ALI" pursuant to an established budget attached
hereto as Exhibit A1;
(b) the portion of the Purchase Price for all other Assets shall
be US$1.00.
(c) an employment agreement for the three principals of "ALI",
being Xxxxx X. Xxxxxxxx, Xxxxx Xxxxxx and Xxxxxx Xxxxxxxx, and
being appointed President, Senior Vice President-Secretary and
Vice President respectively.
(d) "TNRM" will cause the formation of the "ALI" corporation in
Nevada, with the officers as indicated above and with the
addition of Xxxxxxx Xxxxxxx as Treasurer. The directors of the
new company will include Wallgren, Martin, Aguilera, Fuentes, M.
Sunstein, Xxxxxx and X. Xxxxxxxx.
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(e) 25,000 shares of TND to be issued to each of Xxxxxxxx, Xxxxxx
and Aguilera upon the successful completion of the beta site.
(f) Options to be granted to the employees of "ALI" pursuant to
and in conformance with the companys' employee option plan under
development (attached hereto as Exhibit 2).
(g) Xxxxxxxx, Xxxxxx and Xxxxxxxx will be entitled to the
quarterly distribution of profits in the amount of 15%, once the
company has achieved $300,000 in net profits and equally
thereafter.
3.2 DEPOSIT. Upon the execution of this Agreement, "TNRM" shall pay to
"ALI" US$21,000, for payments required for the month of November in
accordance with the attached budget. At the Closing, "TNRM" shall be
credited by this payment to "ALI" under subsection 3.2(a) the amount
of such payment.
3.3 ASSUMPTION OF MATERIAL CONTRACTS. "TNRM" shall assume the performance
of all obligations of "ALI" arising out of or in connection with the
Material Contracts from and after the Effective Date.
ARTICLE 4
CONDITIONS P)RECEDENT
---------------------
4.1 "TNRM"'S CONDITIONS. The obligation of "TNRM" to consummate the
transaction contemplated in this Agreement at the Closing is subject
to the fulfillment of each of the following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE - the
representations and warranties of "ALI" made pursuant
to section 7.1 shall be true and accurate in all
respects at the time of Closing as if made at and as of
the time of Closing, except as may be otherwise
contemplated herein or as may be in writing disclosed
to and approved by "TNRM";
(b) COVENANTS PERFORMED - the covenants and obligations of "ALI"
contained herein which are to be complied with and performed
at or before the Closing shall have been duly complied and
performed in all respects except as may be in writing
disclosed to and approved by "TNRM";
(c) NO MATERIAL LOSS - from the date hereof to the Closing,
"ALI" shall not have experienced any material loss, damage
or destruction to the Assets or the Business and none of the
Assets shall have been sold or disposed of except in the
ordinary course of the Business;
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(d) NO GOVERNMENTAL ACTION - from the date hereof to the
Closing, no federal, provincial, state or municipal
government, or any agency or other governmental authority
shall have instituted or threatened and not discontinued or
withdrawn any action, suit or investigation to restrain,
prohibit or challenge the acquisition of the Assets by
"TNRM" as herein contemplated;
4.2 "ALI"'S BENEFIT. The conditions in section 4.1 are inserted for
the exclusive benefit of ALI and may be waived in whole or in
part by "ALI" at any time.
4.3 "ALI"'S CONDITIONS. The obligation of "ALI" to consummate the
transaction herein contemplated at the Closing is subject to the
fulfillment of each of the following conditions;
(a) REPRESENTATIONS AND WARRANTIES TRUE - the
representations and warranties of "TNRM" made pursuant
to section 7.2 shall be true and accurate in all
respects at the time of Closing as if made at and as of
the time of Closing, except as may be in writing
disclosed to and approved by "ALI";
(b) COVENANTS PERFORMED - the covenants and obligations of
"TNRM" contained herein which are to be complied with
and performed at or before the Closing shall have been
duly complied with and performed in all respects', and
(e) NO GOVERNMENTAL ACTION - from the date hereof to the
Closing, no federal, provincial, state or municipal
government, or any agency or other governmental authority
shall have instituted or threatened and not discontinued or
withdrawn any action, suit or investigation to restrain,
prohibit or challenge the sale of the Assets to "TNRM" as
herein contemplated.
4.4. "ALI"'S BENEFIT. The conditions in section 4.3 are inserted for
the exclusive of "TNRM" and may be waived in whole or in part by
"TNRM" at any time.
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ARTICLE 5
COVENANTS
---------
5.1 "ALI" COVENANTS. "ALI" shall:
(a) Conduct of Business - from the date hereof to the
Closing "ALI" will use its best efforts to carry on the
Business in its ordinary course and to preserve and
maintain the Assets and the goodwill of the Business,
all in the manner heretofore carried on and maintained
by "ALI";
(b) Access - from the date hereof to the Closing, "TNRM"
and "TNRM"' s solicitors, accountants and other
representatives will be afforded access at all
reasonable times during normal business hours to all
the properties, books, contracts, commitments and
records of "ALI" relating to the Assets and the
Business and will be furnished with such copies thereof
and other information relating to the Business and
permitted to conduct such reviews and tests and take
such samples as "TNRM" from time to time may reasonably
request;
(c) CONFIDENTIAL INFORMATION - from and after the date
hereof "ALI" shall not disclose or permit to be
disclosed the terms of this Agreement nor any
confidential information relating to the Business,
including without limitation any information relating
to the trade marks, trade names, copyrights, designs,
licenses, authorities or other rights used in the
Business or lists of customers, or correspondence or
any other confidential information related to the
Business, to any person or persons whatsoever other
than as directed by or for the purposes of "TNRM" or as
required by law, nor will "ALI" use any information
that it may have relating to the Business for any
purpose;
(d) INDEMNITY - from and after the Closing "ALI" shall
indemnify and hold "TNRM" harmless from and against any
and all losses, damages, costs, claims, charges and
expenses paid, suffered or incurred by "TNRM" as a
result of;
(i) any and all liabilities, whether accrued,
absolute, contingent or otherwise,
including, without limitation,
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any third party liability, existing at or
arising prior to the time of Closing and
which are not expressly agreed to in writing
to be assumed by "TNRM" pursuant to this
Agreement,
(ii) any misrepresentation, breach of warranty or
non-fulfillment of the terms of any covenant
made by "ALI" herein or made in or omitted
from any certificate or other instrument or
document furnished or to be furnished to
"TNRM" hereunder, and
(iii) any and all actions, suits, proceedings,
demands, assessments, judgements, costs and
legal or other expenses incident to any of the
foregoing;
provided, however, that no claim may be made by "TNRM"
hereunder unless notice of the proposed claim shall be
given to "ALI" within one years after the Closing Date,
(e) SECURITY INTEREST - on and after the Closing Date,
"ALI" shall consent to the registration in the State of
Nevada by "TNRM" of its interest in the Assets; and
ARTICLE 6
CLOSING
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6.1 TIME OF CLOSING. The Closing of the transaction contemplated by
this Agreement shall take place at the offices of "TNRM" located
at 000 Xxxxxx xxx Xxx X., Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx at
10:00 a.m. on the 14th day of November 1997, or at such other
time, date or place as the parties may agree in writing.
6.2 OBLIGATIONS. At the Closing "ALI" shall:
(a) deliver or cause to be delivered to "TNRM" all such
bills of sale, transfers, assignments and other
documents and instruments, in registrable form where
applicable, as are reasonably necessary to transfer to
"TNRM" good and saleable title to the Assets free and
clear of all liens, claims, charges, mortgages and
other security interests and encumbrances whatsoever;
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(b) deliver to "TNRM" a certificate executed by a director
or senior officer of "ALI" dated the Closing Date
certifying on behalf of "ALI" and to the best of his or
her knowledge, after reasonably inquiry, that at and as
of the Closing the representations and warranties of
"ALI" made by "ALI" pursuant to section 7.1 are true
and accurate in all respects;
(c) deliver to "TNRM" certified copies of resolutions of
the directors and shareholders of "ALI" approving the
execution and delivery of this Agreement and the
completion of the transaction herein contemplated;
(d) deliver to "TNRM" appropriate discharges and releases,
in registrable form where applicable, of all liens,
charges, mortgages and other security interests and
encumbrances registered against or otherwise charging
the Assets, including all necessary clearance
certificates of governmental authorities to release any
liens on the Assets for unpaid fees, duties, taxes or
assessments;
(e) deliver to "TNRM" possession of the Assets;
6.3 "TNRM"'S OBLIGATIONS. At the Closing "TNRM" shall:
(a) deliver to "ALI" a certificate executed by a director
or senior officer of "TNRM" dated the Closing Date
certifying on behalf of "TNRM" and to the best of his
or her knowledge, after reasonable inquiry, that at and
as of the Closing the representations and warranties of
"TNRM" made pursuant to section 7.2 are true and
accurate in all respects except to the extent otherwise
disclosed in writing to "ALI";
(b) deliver to "ALI" a certified copy of resolutions of the
directors of "TNRM" approving the execution and
delivery of this Agreement and the completion of the
transactions herein contemplated;
(c) pay to "ALI", the initial cash portion of the Purchase
Price due at Closing as provided in subsection 3.2(a)
of this Agreement;
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(d) execute and deliver to "ALI" a management agreement as
described in of this Agreement.
(e) execute and deliver to "ALI" the prinicpal's option
plan ("Exhibit 2").
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
------------------------------
7.1 REPRESENTATIONS-AND WARRANTIES OF "ALI". "ALI" hereby represents
and warrants to "TNRM" as follows:
(a) INCORPORATION - "ALI" is a corporation to be formed
which will be duly incorporated and validly existing
under the laws of the State of Nevada;
(b) CORPORATE AUTHORITY - "ALI" has fully corporate power, capacity
and authority to enter into this Agreement, to perform its
obligations hereunder and to sell, transfer and assign its
Assets to "TNRM" as herein contemplated;
(c) AGREEMENT BINDING - the execution and delivery of this
Agreement and the completion of the transaction
contemplated hereby have been duly and validly
authorized by all necessary corporate actions and
proceedings on the part of "ALI" and this Agreement
constitutes a legal, valid and binding obligation of
"ALI" enforceable against it in accordance with its
terms except to the extent enforcement may be limited
by laws of general application affecting the rights of
creditors and the availability of equitable remedies;
(d) NO DEFAULT.. ETC. - neither the execution and deliver
of this Agreement nor the consummation of the
transactions contemplated hereby nor the due observance
and performance by "ALI" of its obligations contained
herein;
(i) will conflict with or result in a breach of or violate
any of the terms and of the conditions or provisions of
the constating documents of "ALI";
(ii) will conflict with or result in a breach of or
violate any of the terms, conditions or provisions of
any law, judgement, order, injunction, decree,
regulation or ruling of any court or government
authority, domestic or foreign, to which "ALI" is
subject;
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(iii) will conflict with or result in a breach of or
constitute or result in a default under any material
agreement, contract or commitment to which "ALI" is a
party or by which it is bound or to which it is
subject; or
(iv) will GIVE to any government or governmental
authority, including any governmental department,
commission, bureau, board or administrative agency, any
right of termination, cancellation or suspension of, or
constitute a breach of or result in a default under,
any permit, license, consent or authority issued to
"ALI" and which is necessary or desirable in connection
with the conduct and operation of the Business and the
ownership over the Assets as the same is now conducted
and owned;
(e) NO BANKRUPTCY, ETC. - "ALI" has not committed an act of
bankruptcy, is not insolvent, has not proposed a
compromise or arrangement to its creditors generally,
has not had any petition for any receiving order in
bankruptcy filed against it, has not made a voluntary
assignment in bankruptcy, has not taken any proceeding
with respect to a compromise or arrangement, has not
taken any proceeding to have itself declared bankrupt
or wound-up nor taken any proceeding to have a receiver
appointed over all or any part of its assets;
(f) QUALIFICATION - "ALI" wil be duly registered or
qualified to carry on business under the applicable
legislation of the State of Nevada;
(g) LICENSES, PERMITS, ETC. - "ALI" holds all material
governmental licenses, permits and authorizations as
may be requisite for the carrying on of its Business in
the places and in the manner heretofore carried on and
has not received notice of any material default under
any of such licenses, permits or authorizations;
(h) TITLE TO ASSETS - at the Closing, "ALI" will have good
and marketable title to the Assets free and clear of
any actual or threatened lien, claim, charge., mortgage
or other security interest or encumbrance whatsoever;
(i) STATE OF REPAIR - the Assets are all in good operating
condition and repair, normal wear and tear excepted;
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(j) MATERIAL CONTRACTS - Schedule B lists all contacts relating
to the Business to which "ALI" is a party which cannot be
terminated on thirty days (or less) notice without liability to
"ALI";
(k) CONTRACTS - all of the material Contracts have been
made in the ordinary course of the Business on "ALI"'
s standard terms and conditions and at current standard
prices of the applicable services,
(l) DEFAULT UNDER CONTRACTS - "ALI" is not in default under
or in breach of any term of any of the Material
Contracts or other contacts to which is a party nor is
"ALI" aware of any existing default of any term thereof
by any of the other parties to such agreements;
(m) BOOKS AND RECORDS - the books and records of "ALI" relating
to the Business fairly and accurately set out and disclose in all
material respects, in accordance with generally accepted
principles the financial condition of the business as at the date
hereof and all material financial transactions of "ALI" relating
to the Business have been accurately recorded in such books and
records-,
(o) NO MATERIAL CHANGE - since 11/1/97, there
have been no change in the affairs,
business, prospects, operations or condition
of the Business, financial or otherwise,
except changes occurring in the ordinary
course of "ALI"'s business, which changes
have not adversely affected and will not
adversely affect the Assets or goodwill of
the Business or the prospects or financial
condition of the Business nor is "ALI" aware
of any future event or condition which is
likely to occur and which would materially
and adversely affect the Assets or the
financial prospects of the Business;
(p) ORDINARY COURSE - the Business will be
carried on in the ordinary course up to the
Closing;
(q) LITIGATION - there are no actions, claims,
suits, judgements, litigation, orders,
investigations or proceedings outstanding
or, to the knowledge of "ALI", pending or
threatened by or against or concerning "ALI"
in any court or before or by any federal,
provincial, municipal or other governmental
department, commission, board, bureau or
agency, or before any arbitrator of any kind
nor is "ALI" aware of any basis for the
same;
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(r) COMPLIANCE WITH LAWS - "ALI" has obtained
all material permits, licenses and other
authorizations which are required with
respect to the Business and the Assets under
the applicable laws, regulations and other
requirements of governmental bodies and
"ALI" has not received notice of any past or
present events, conditions, circumstances,
activities, practices, incidents, actions or
plans which may interfere in a material
respect with or prevent continued compliance
in a material respect with any of the
requirements of such laws., regulations and
requirements;
(s) LABOR MATTERS - "ALI" is not a party to any
collective bargaining or other agreement
with any labor union or other association of
employees and there are no labor disputes,
grievances, strikes or lookouts currently in
existence or, to the knowledge of "ALI",
threatened with respect to any employees of
the Business;
(t) EMPLOYEES - Schedule C contains a complete and
accurate list of the names, positions, wage and salary
rates, bonuses and other compensation and benefits,
dates of hire, location of employment (including with
respect to termination or severance) of all of the
employees of the business; and
(u) EMPLOYMENT CONTRACTS - there are no written employment,
management or consulting agreements or commitments between "ALI"
and any person employed or engaged by the Business and no
contract of employment between "ALI" and any employee of the
Business provides for a period 6f notice or payment of any amount
in lieu of notice to any such employee with respect to
termination or severance of employment which is greater than the
minimum period or amount to which the employee would be entitled
at common law or by statute.
7..2 REPRESENTATIONS, AND WARRANTIES OF "TNRM". "TNRM" hereby represents
and warrants to "ALI" as follows:
(a) "TNRM" INCORPORATION- - "TNRM" is a Nevada corporation duly
incorporated and organized, validly existing and in good standing
in the office of the Registrar of Companies of Nevada with
respect to the filing of annual reports;
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(b) CORPORATE AUTHORITY - "TNRM" has full corporate power, capacity,
authority and legal right to enter into this Agreement and to
carry out the transactions herein contemplated;
(c) AGREEMENT BINDING - the execution and delivery of this Agreement
and the completion of the transaction contemplated hereby have
been duly and validly authorized by all necessary corporate
actions and proceedings on the part of "TNRM" and this Agreement
constitutes a legal, valid and binding obligation of "TNRM"
enforceable against "TNRM" in accordance with its terms except to
the extent enforcement may be limited by laws of general
application affecting the rights of creditors and the
availability of equitable remedies;
(d) NO DEFAULT, ETC - neither the execution and delivery of this
Agreement nor the completion of the transaction contemplated
hereby will violate any of the terms or provisions of the
constating documents, articles or bylaws of "TNRM" nor result in
the breach of any term or provision of , or constitute a default
under, any indenture, mortgage, deed of trust or other agreement
to which "TNRM" is a party or by which it is bound; and
(e) NO BANKRUPTCY, ETC. - "TNRM" has not committed an act of
bankruptcy, is not insolvent, has not proposed a compromise or
arrangement to its creditors generally, has not had any petition
for a receiving order in bankruptcy filed against it, has not
made a voluntary assignment in bankruptcy, has not taken any
proceeding with respect to a compromise or arrangement, has not
taken any proceeding to have itself declared bankrupt or wound-up
and has not taken any proceeding to have a receiver appointed
over all or any part of its assets.
ARTICLE 8
EMPLOYEES,
---------
8.1 TERMINATION BY "ALI" - Immediately following the Closing "ALI" shall
terminate the employment of all employees, if any, then employed by it
in the Business (or shall reassign such ernployees to other
employment with "ALI") effective as of midnight on the Closing Date,
and "ALI" shall thereafter be responsible for and pay all wages,
salaries, bonuses and other compensation and benefits due or accruing
due to such employees prior to the Closing date as well as all
severance costs, if any, as may be payable to such employees as a
result of the termination of their employment as herein contemplate,
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8.2 EMPLOYMENT BY "TNRM". In accordance with the management agreement
described in section 9, I of this Agreement, immediately following the
Closing "ALI" shall be responsible for and provide all employees
required to operate the Business at the same salary and benefits as
currently paid by "ALI" and identified in Schedule C.
8.3 INDEMNITY FROM "ALI". "ALI" shall indemnify and save harmless "TNRM"
from and against any and all claims by any employees of the Business
for or with respect to wages, salaries, bonuses and other compensation
and benefits and severance costs.
ARTICLE 9
MANAGEMENT OF BUSINESS
----------------------
9.1 MANAGEMENT AGREEMENT. "TNRM" shall enter into a management agreement
with "ALI" in respect of the management of the day to day operation of
the Business by "ALI" in the form set out in Schedule D to this
Agreement.
ARTICLE 10
RIGHT OF FIRST REFUSAL
----------------------
10.1 "ALI" 'S RIGHT OF FIRST REFUSAL.
(a) "TNRM" shall not, within five years of the date of this Agreement,
sell, transfer or otherwise dispose of, or offer to sell, transfer or
otherwise dispose of, the Business or all of the shares of any subsidiary
of "TNRM" which owns the Business (the "Investment") unless "TNRM" first
offers to "ALI" by notice in writing (the "Offer") delivered to "ALI" the
prior right to purchase, receive or otherwise acquire the Investment.
(b) The Offer shall state that "TNRM" has determined to sell the
Investment and shall set forth:
(i) the Investment offered for sale, which must represent 100% of the
Investment then held by "TNRM",
(ii) the consideration therefor expressed only in lawful money of the
United States of America and shall be expressed in the aggregate and,
if the Investment involves the sale of shares, in amounts per share
(the "Investment Purchase Price");
(iii) that the terms and conditions of the sale are that at Closing,
100% of the Investment Purchase Price is to be paid by certified
check to "TNRM"; and
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(iv) that the Offer shall either be accepted in its entirety or not at
all and that it is open for acceptance by "ALI" for a period of 60
days after receipt of such Offer by "ALI".
(c) If the Offer is not wholly accepted by "ALI" within the 60 days that
it is open, "TNRM" may, within 120 days after the expiry of the said 60 day
period for acceptance, sell, transfer or otherwise dispose of the whole and
not less than the whole of the Investment to any other person, firm or
corporation (a "Third Party") for not less than the price and on terms and
conditions of payment not substantially more favorable to the Third Party
than those set out in the Offer. Upon the expiry of the said 120 day
period without the completion of a sale to a Third Party, the provisions of
section 10.1 shall again become applicable to the sale, transfer or other
disposition of the Investment and so on from time to time.
(d) Upon the acceptance of the Offer in whole, a binding contract of sale
and purchase of the Investment at the price and on the terms and conditions
referred to above shall be deemed to come into existence, and "ALI" shall
purchase, and "TNRM" shall sell, at the purchase price determined as
aforesaid, the Investment and the closing of the purchase and sale thereof
shall take place at the registered office of "TNRM" at I 0: 00 a. m. on the
3Oth day following the date of acceptance of the Offer or, if that day is
not a business day then on the next business day (or such other date as the
parties thereto may agree), at which time the appropriate parties shall
execute and deliver such certified checks, share certificates (duly
endorsed for transfer), instruments, conveyances, assignments, and releases
and other documents as may be reasonably required to effect and complete
the sale of the Investment, which shall be sold free and clear of all
charges, security interests, encumbrances.. pledges, mortgages, liens,
hypothecation's and adverse claims whatsoever (but subject to the terms of
this Agreement),
(e) Notwithstanding the foregoing, "TNRM" may sell, assign or transfer any
or all of its interest in the Business or in Assets or in any subsidiary
which owns the Business or Assets to an affiliate.
ARTICLE II
SURVIVAL AND REMEDIES
---------------------
11.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES, ETC. Notwithstanding
any investigations made by "TNRM" or its representatives prior to closing,
the representations, warrants, covenants and agreements of "ALI" contained
in this Agreement and in any certificate or other document delivered
pursuant hereto shall survive the Closing, and notwithstanding the
completion of the purchase and sale herein provided for or any
reorganization, amalgamation, sale, transfer or assignment of "ALI", "TNRM"
or the Business, shall continue in full force and effect, except to the
extent expressly waived in writing by "TNRM".
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11.2 REMEDIES FOR BREACH. In the event that any of the
representations or warranties of "ALI" are found to be untrue or there is
a breach of any covenant or agreement of "ALI", "TNRM" shall have the
right, without prejudice to any other rights or remedies which it may have,
to claim from "ALI" a reduction of the Purchase Price equivalent to the
loss or damage suffered by "TNRM" as a result of such misrepresentation or
breach of warranty, covenant or agreement and without limiting in any
manner the rights of "TNRM" with respect thereto, any such claim may be set
off against any amount howsoever owing to "ALI" by "TNRM".
ARTICLE 12
MISCELLANEQUS PROVISIONS
------------------------
12.1 ANNOUNCEMENTS. No announcement or news release shall be
authorized, made or published by either "ALI" or "TNRM" relating to the
transactions herein contemplated without the prior written consent of 'the
other, such consent not to be unreasonably withheld, except to the extent
required by law, regulatory authority or rules of any stock exchange, and
in any event no announcement or news release shall be authorized, made or
published without first informing the other party of the contents thereof.
12.2 COSTS. Each party to this Agreement shall be responsible for the
payment of all costs and expenses incurred or to be incurred by it,
including all fees and disbursements of its legal, accounting and other
professional advisors and consultants, in negotiating and preparing this
Agreement and in otherwise performing the transactions contemplated by this
Agreement,
12.3 BROKERS. "ALI" and "TNRM" represent and warrant to each other
that no broker, agent or other intermediary acted for it in connection with
the transactions contemplated herein in such a manner as to give rise to
any claim against the other for any brokerage fees, finder's fees,
commissions or other like payments with respect to the transactions herein
contemplated and each of the parties does hereby agree to indemnify and
save harmless the other from and against any such claims whatsoever.
12.4 ENTIRE AGREEMENT. This Agreement and the terms hereof shall
constitute the entire agreement between the parties hereto with respect to
all of the matters herein and shall supersede all previous negotiations and
agreements with respect to the matters herein, and this Agreement shall not
be amended, altered or qualified except by a memorandum in writing,,
executed by or on behalf of all of the parties hereto, and any purported
amendment, or alteration or qualification hereof which is not so evidenced
shall be null and void.
12.5 RISK OF LOSS. In the event that any of the Assets are lost,
damaged, or destroyed or expropriated or seized by governmental or other
authority prior to the
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time of Closing and the loss or impairment of such Assets materially
adversely affects the continued operation of the Business in the opinion of
"TNRM", then "TNRM" may, at its option, terminate this Agreement and it
shall not be liable to "ALI" in respect of so doing. In the event that
such loss or impairment of the Assets does not materially adversely affect
the operation of the Business in the opinion of "TNRM", neither "ALI" nor
"TNRM" shall be entitled to terminate this Agreement, rather the Purchase
Price shall be reduced by an amount equal to the value of such loss as
determined by reference to the Purchase Price allocation herein provided
and the parties shall remain obligated to complete the transactions
contemplated herein,
12.6 NOTICES. All notices, requests, demands or other communications
required or permitted to be given by one party to another hereunder shall
be given in writing delivered to or sent by telecopier or by postage
prepaid registered mail to the other party at the following addresses:
TO "ALI":
ACTIVITY LINK, INC., "ALI"
0000 XXXXXXXXXX XXXXX
XXXXXXXX, XXXXXXXXXX 00000
ATTENTION: PRESIDENT-XXXXX X. XXXXXXXX
TELECOPIER: 000-000-0000
TO "TNRM"-
TRI-NATIONAL DEVELOPMENT CORP.
SUITE 140- 000 XXXXXX XXX XXX X.
XXX XXXXX, XXXXXXXXXX 00000
ATTENTION- PRESIDENT-XXXXXXX X. XXXXXXXX
TELECOPIER: 000-000-0000
or at such other address as may be indicated by any party by written
notice to the other and such notices, request, demands or other
communications shall be deemed to have been received when delivered or
sent by telecopier or, if mailed, four (4) business days after the
mailing thereof.
12.7 ATTORNMENT. Each of the parties hereto irrevocably attorns and
submits to
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the exclusive jurisdiction of the courts of the State of Nevada.
12.9 COUNTERPARTS. This Agreement may be executed by the parties by
facsimile and in counterparts,
12.9 ENUREMENT AND ASSIGNMENT. This Agreement shall enure to the
benefit of and be binding upon the parties hereto and their
respective successors and assigns. "TNRM" may assign this
Agreement to a wholly owned subsidiary, provided that "TNRM"
remains obligated to issue the shares described in subsection
3.2(b).
12.10 TIME OF ESSENCE. Time shall be of the essence of this
Agreement and of every part hereof and no extension or
variation of this Agreement shall operate as a waiver of this
provision,
12.11 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF the parties have executed and delivered this Agreement
as of the day and year first above written,
ACTIVITY LINK, INC.
Per: ________________________________
Xxxxx X. Xxxxxxxx, President
TRI-NATIONAL RESORT MANAGEMENT, INC.
Per: ___________________________________
Xxxxxxx X. Xxxxxxxx, President
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