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Split-off Agreement

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Sectors: Services
Governing Law: Nevada, View Nevada State Laws
Effective Date: July 02, 2008
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Exhibit 10.1



SPLIT-OFF AGREEMENT



This SPLIT-OFF AGREEMENT , dated as of July 2, 2008 (this "Agreement"), is entered into by and among ProMana Solutions, Inc., a Nevada corporation ("Seller"), Pro Mana Technologies, Inc., a New Jersey corporation ("Split-Off Subsidiary"), Crownbutte Wind Power, Inc., a North Dakota corporation ("Crownbutte"), and Robert A. Basso and Lawrence J. Kass (each, a "Buyer" and collectively, the " Buyers").



RECITALS:



WHEREAS , Seller is the owner of all of the issued and outstanding capital stock of Split-Off Subsidiary. Split-Off Subsidiary is a wholly-owned subsidiary of Seller which will acquire the business assets and liabilities previously held by Seller. Seller has no other businesses or operations prior to the Merger (as defined herein);



WHEREAS , contemporaneously with the execution of this Agreement, Seller, Crownbutte and a newly-formed wholly-owned North Dakota subsidiary of Seller, Crownbutte Acquisition Sub Inc. ("Acquisition Sub"), will enter into an Agreement and Plan of Merger and Reorganization (the "Merger Agreement") pursuant to which Acquisition Sub will merge with and into Crownbutte with Crownbutte remaining as the surviving entity (the "Merger ?). The equity holders of Crownbutte will receive securities of Seller in exchange for their equity interests in Crownbutte;



WHEREAS , the execution and delivery of this Agreement is required by Crownbutte as a condition to its execution of the Merger Agreement, and the consummation of the assignment, assumption, purchase and sale transactions contemplated by this Agreement is also a condition to the completion of the Merger pursuant to the Merger Agreement, and Seller has represented to Crownbutte in the Merger Agreement that the transactions contemplated by this Agreement will be consummated immediately following the closing of the Merger, and Crownbutte relied on such representation in entering into the Merger Agreement;



WHEREAS , Buyers desire to purchase the Shares (as defined in Section 2.1 ) from Seller, and to assume, as between Seller and Buyers, all responsibility for any debts, obligations and liabilities of Seller (prior to the Merger) and Split-Off Subsidiary, on the terms and subject to the conditions specified in this Agreement; and



WHEREAS , Seller desires to sell and transfer the Shares to the Buyers, on the terms and subject to the conditions specified in this Agreement.



NOW, THEREFORE , in consideration of the premises and the covenants, promises and agreements herein set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending legally to be bound, agree as follows:
















I. ASSIGNMENT AND ASSUMPTION OF SELLER'S ASSETS AND LIABILITIES .



Subject to the terms and conditions provided below:



1.1 Assignment of Assets. Seller hereby contributes, assigns, conveys and transfers to Split-Off Subsidiary, and Split-Off Subsidiary hereby receives, acquires and accepts, all assets and properties of Seller as of the Effective Time, including but not limited to the following, but excluding in all cases (i) the right, title and assets of Seller in, to and under the Transaction Documentation and (ii) the capital stock of Crownbutte and Split-Off Subsidiary :



(a) all cash and cash equivalents;




(b) all accounts receivable;




(c) all inventories of raw materials, work in process, parts, supplies and finished products;




(d) all of Seller's rights, title and interests in, to and under all contracts, agreements, leases, licenses (including software licenses), supply agreements, consulting agreements, commitments, purchase orders, customer orders and work orders, and including all of Seller's rights thereunder to use and possess equipment provided by third parties, and all representations, warranties, covenants and guarantees related to the foregoing (provided that to the extent any of the foregoing or any claim or right or benefit arising thereunder or resulting therefrom is not assignable by its terms, or the assignment thereof shall require the consent or approval of another party thereto, this Agreement shall not constitute an assignment thereof if an attempted assignment would be in violation of the terms thereof or if such consent is not obtained prior to the Effective Time, and in lieu thereof Seller shall reasonably cooperate with Split-Off Subsidiary in any reasonable arrangement designed to provide Split-Off Subsidiary the benefits thereunder or any claim or right arising thereunder);




(e) all intellectual property, including but not limited to issued patents, patent applications (whether or not patents are issued thereon and whether modified, withdrawn or resubmitted), unpatented inventions, product designs, copyrights (whether registered or unregistered), know-how, technology, trade secrets, technical information, notebooks, drawings, software, computer coding (both object and source) and all documentation, manuals and drawings related thereto, trademarks or service marks and applications therefor, unregistered trademarks or service marks, trade names, logos and icons and all rights to sue or recover for the infringement or misappropriation thereof;




(f) all fixed assets, including but not limited to the machinery, equipment, furniture, vehicles, office equipment and other tangible personal property owned or leased by Seller;





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(g) all customer lists, business records, customer records and files, customer financial records, and all other files and information related to customers, all customer proposals, all open service agreements with customers and all uncompleted customer contracts and agreements; and




(h) to the extent legally assignable, all licenses, permits, certificates, approvals and authorizations issued by Governmental Entities and necessary to own, lease or operate the assets and properties of the Seller and to conduct the Seller's business as it is presently conducted;




all of the foregoing being referred to herein as the "Assigned Assets."



1.2 Assignment and Assumption of Liabilities . Seller hereby assigns to Split-Off Subsidiary, and Split-Off Subsidiary hereby assumes and agrees to pay, honor and discharge all debts, adverse claims, liabilities, judgments and obligations of Seller as of the Effective Time, whether accrued, contingent or otherwise and whether known or unknown, including those arising under any law (including the common law) or any rule or regulation of any Governmental Entity or imposed by any court or any arbitrator in a binding arbitration resulting from, arising out of or relating to the assets, activities, operations, actions or omissions of the Seller, or products manufactured or sold thereby or services provided thereby, or under contracts, agreements (whether written or oral), leases, commitments or undertakings thereof, but excluding in all cases the obligations of Seller under the Transaction Documentation (all of the foregoing being referred to herein as the "Assigned Liabilities").



The assignment and assumption of Seller's assets and liabilities provided for in this Article I is referred to as the "Assignment."



II. PURCHASE AND SALE OF STOCK .



2.1 Purchased Shares . Subject to the terms and conditions provided below, Seller shall sell and transfer to Buyers and Buyers shall purchase from Seller, on the Closing Date (as defined in Section 3.1 ), all of the issued and outstanding shares of capital stock of Split-Off Subsidiary (the "Shares"), pro rata in the proportions set forth in Exhibit A attached hereto.



2.2 Purchase Price . The purchase price for the Shares shall be the transfer and delivery by each Buyer to Seller of the type and number of shares of common stock and other securities of Seller that such Buyer owns (the "Purchase Price Securities"), as set forth in Exhibit A attached hereto, deliverable as provided in Section 3.3 .



III. CLOSING .



3.1 Closing . The closing of the transactions contemplated in this Agreement (the "Closing" ) shall take place as soon as practicable following the execution of this Agreement; provided, however, that the Closing must occur immediately after the closing of the Merger. The date on which the Closing occurs shall be referred to herein as the "Closing Date."







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3.2 Transfer of Shares . At the Closing, Seller shall deliver to each Buyer certificates representing the Shares purchased by such Buyer, duly endorsed to such Buyer or as directed by such Buyer, which delivery shall vest such Buyer with good and marketable title to such Shares, free and clear of all liens and encumbrances.



3.3 Payment of Purchase Price . At the Closing, each Buyer shall deliver to Seller a certificate or certificates representing such Buyer ?s Purchase Price Securities duly endorsed to Seller, which delivery shall vest Seller with good and marketable title to the Purchase Price Securities, free and clear of all liens and encumbrances.



3.4 Transfer of Records . On or before the Closing, Seller shall transfer to Split-Off Subsidiary all existing corporate books and records in Seller's possession relating to Split-Off Subsidiary and its business, including but not limited to all agreements, litigation files, real estate files, personnel files and filings with governmental agencies; provided , however , when any such documents relate to both Seller and Split-Off Subsidiary, only copies of such documents need be furnished. On or before the Closing, Buyers and Split-Off Subsidiary shall transfer to Seller all existing corporate books and records in the possession of Buyers or Split-Off Subsidiary relating to Seller, including but not limited to all corporate minute books, stock ledgers, certificates and corporate seals of Seller and all agreements, litigation files, real property files, personnel files and filings with governmental agencies; provided , however , when any such documents relate to both Seller and Split-Off Subsidiary or its business, only copies of such documents need be furnished.



3.5 Instruments of Assignment . At the Closing, Seller and Split-Off Subsidiary shall deliver to each other such instruments providing for the Assignment as the other may reasonably request (the "the Instruments of Assignment").



IV. BUYERS' REPRESENTATIONS AND WARRANTIES . Each Buyer represents and warrants to Seller and Crownbutte that:



4.1 Capacity and Enforceability . Buyer has the legal capacity to execute and deliver this Agreement and the documents to be executed and delivered by Buyer at the Closing pursuant to the transactions contemplated hereby. This Agreement and all such documents constitute valid and binding agreements of Buyer, enforceable in accordance with their terms.



4.2 Compliance . Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby by Buyer will result in the breach of any term or provision of, or constitute a default under, or violate any agreement, indenture, instrument, order, law or regulation to which Buyer is a party or by which Buyer is bound.







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4.3 Purchase for Investment . Buyer is financially able to bear the economic risks of acquiring the Shares and the other transactions contemplated hereby, and has no need for liquidity in his investment in the Shares. Buyer has such knowledge and experience in financial and business matters in general, and with respect to businesses of a nature similar to the business of Split-Off Subsidiary (after giving effect to the Assignment), so as to be capable of evaluating the merits and risks of, and making an informed business decision with regard to, the acquisition of the Shares and the other transactions contemplated hereby. Buyer is acquiring the Shares solely for his own account and not with a view to or for resale in connection with any distribution or public offering thereof, within the meaning of any applicable securities laws and regulations, unless such distribution or offering is registered under the Securities Act of 1933, as amended (the " Securities Act"), or an exemption from such registration is available. Buyer has (i) received all the information he has deemed necessary to make an informed decision with respect to the acquisition of the Shares and the other transactions contemplated hereby; (ii) had an opportunity to make such investigation as he has desired pertaining to Split-Off Subsidiary (after giving effect to the Assignment) and the acquisition of an interest therein and the other transactions contemplated hereby, and to verify the information which is, and has been, made available to him; and (iii) had the opportunity to ask questions of Seller concerning Split-Off Subsidiary (after giving effect to the Assignment). Buyer acknowledges that Buyer is a current director and officer of Seller, and a current director and officer of Split-Off Subsidiary and, as such, has actual knowledge of the business, operations and financial affairs of Split-Off Subsidiary (after giving effect to the Assignment). Buyer has received no public solicitation or advertisement with respect to the offer or sale of the Shares. Buyer realizes that the Shares are "restricted securities" as that term is defined in Rule 144 promulgated by the Securities and Exchange Commission under the Securities Act, the resale of the Shares is restricted by federal and state securities laws and, accordingly, the Shares must be held indefinitely unless their resale is subsequently registered under the Securities Act or an exemption from such registration is available for their resale. Buyer understands that any resale of the Shares by him must be registered under the Securities Act (and any applicable state securities law) or be effected in circumstances that, in the opinion of counsel for Split-Off Subsidiary at the time, create an exemption or otherwise do not require registration under the Securities Act (or applicable state securities laws). Buyer acknowledges and consents that certificates now or hereafter issued for the Shares will bear a legend substantially as follows:



THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR QUALIFIED UNDER ANY APPLICABLE STATE SECURITIES LAWS (THE "STATE ACTS"), HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND QUALIFICATION UNDER THE STATE ACTS OR PURSUANT TO EXEMPTIONS FROM SUCH REGISTRATION OR QUALIFICATION REQUIREMENTS (INCLUDING, IN THE CASE OF THE SECURITIES ACT, THE EXEMPTIONS AFFORDED BY SECTION 4(1) OF THE SECURITIES ACT AND RULE 144 THEREUNDER). AS A PRECONDITION TO ANY SUCH TRANSFER, THE ISSUER OF THESE SECURITIES SHALL BE FURNISHED WITH AN OPINION OF COUNSEL OPINING AS TO THE AVAILABILITY OF EXEMPTIONS FROM SUCH REGISTRATION AND QUALIFICATION AND/OR SUCH OTHER EVIDENCE AS MAY BE SATISFACTORY THERETO THAT ANY SUCH TRANSFER WILL NOT VIOLATE THE SECURITIES LAWS.







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Buyer understands that the Shares are being sold to him pursuant to the exemption from registration contained in Section 4(1) of the Securities Act and that the Seller is relying upon the representations made herein as one of the bases for claiming the Section 4(1) exemption.



4.4 Liabilities . Following the Closing, Seller will have no liability for any debts, liabilities or obligations of Split-Off Subsidiary or its business or activities, and there are no outstanding guaranties, performance or payment bonds, letters of credit or other contingent contractual obligations that have been undertaken by Seller directly or indirectly in relation to Split-Off Subsidiary or its business and that may survive the Closing.



4.5 Title to Purchase Price Securities . Each Buyer is the sole record and beneficial owner of his Purchase Price Securities. At Closing, Buyer will have good and marketable title to his Purchase Price Securities, which Purchase Price Securities are, and at the Closing will be, free and clear of all options, warrants, pledges, claims, liens and encumbrances, and any restrictions or limitations prohibiting or restricting transfer to Seller, except for restrictions on transfer as contemplated by applicable securities laws.



V. SELLER'S AND SUBSIDIARY'S REPRESENTATIONS AND WARRANTIES . Seller and Split-Off Subsidiary, jointly and severally, represent and warrant to Buyers that:



5.1 Organization and Good Standing . Each of the Seller and Split-Off Subsidiary is a corporation duly incorporated, validly existing, and in good standing under the laws of the State of Nevada and the State of New Jersey, respectively.



5.2 Authority and Enforceability . The execution and delivery of this Agreement and the documents to be executed and delivered at the Closing pursuant to the transactions contemplated hereby, and performance in accordance with the terms hereof and thereof, have been duly authorized by Seller and all such documents constitute valid and binding agreements of Seller enforceable in accordance with their terms.



5.3 Title to Shares . Seller is the sole record and beneficial owner of the Shares. At Closing, Seller will have good and marketable title to the Shares, which Shares are, and at the Closing will be, free and clear of all options, warrants, pledges, claims, liens and encumbrances, and any restrictions or limitations prohibiting or restricting transfer to Buyers, except for restrictions on transfer as contemplated by Section 4.3 above. The Shares constitute all of the issued and outstanding shares of capital stock of Split-Off Subsidiary.



5.4 WARN Act . Split-Off Subsidiary does not have a sufficient number of employees to make it subject to the Worker Adjustment and Retraining Notification Act.



5.5 Representations in Merger Agreement . Split-Off Subsidiary represents and warrants that all of the representations and warranties by Seller, insofar as they relate to Split-Off Subsidiary, contained in the Merger Agreement are true and correct.







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VI. OBLIGATIONS OF BUYERS PENDING CLOSING . Each Buyer covenants and agrees that between the date hereof and the Closing:



6.1 Not Impair Performance . Buyer shall not take any intentional action that would cause the conditions upon the obligations of the parties hereto to effect the transactions contemplated hereby not to be fulfilled, including, without limitation, taking or causing to be taken any action that would cause the representations and warranties made by any party herein not to be true, correct and accurate as of the Closing, or in any way impairing the ability of Seller to satisfy its obligations as provided in Article VII .



6.2 Assist Performance . Buyer shall exercise its reasonable best efforts to cause to be fulfilled those conditions precedent to Seller ?s obligations to consummate the transactions contemplated hereby which are dependent upon actions of Buyer and to make and/or obtain any necessary filings and consents in order to consummate the sale transaction contemplated by this Agreement.



VII. OBLIGATIONS OF SELLER PENDING CLOSING . Seller covenants and agrees that between the date hereof and the Closing:

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