Exhibit 10.1
Form 8-K dated January 2, 2002
▇▇▇▇▇▇▇.▇▇▇, Inc.
File No. 000-26027
ASSET PURCHASE AGREEMENT
Between
▇▇▇▇▇▇▇.▇▇▇, INC.
and
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dated December 27, 2001
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Index
1. Definitions 1
2. Basic Transaction 5
3. Representations and Warranties of Seller 6
4. Representations and Warranties of Buyer 9
5. Pre-closing Covenants 10
6. Post-closing Covenants 11
7. Conditions to ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇
▇. Remedies for Breach of This Agreement 14
9. Termination 17
10. Miscellaneous 18
Exhibit A -- Form of Assignment
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into as of
this 27th day of December 2001, by and between ▇▇▇▇▇▇▇.▇▇▇, INC.,
a Utah corporation (the "Buyer") and ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an
individual ("Seller"). The Buyer and Seller are referred to
collectively herein as the "Parties."
This Agreement contemplates a transaction in which the Buyer
will purchase certain of the assets and contractual rights of the
business conducted by the Seller as a sole proprietorship under
the name "Amerex" in return for cash and common stock of Buyer.
Now, therefore, in consideration of the premises and the
mutual promises herein made, and in consideration of the
representations, warranties, and covenants herein contained, the
Parties agree as follows.
1. Definitions.
"Acquired Assets" means all right, title, and interest in
and to all of the assets constituting the Business described on
Exhibit A attached hereto.
"Adverse Consequences" means all actions, suits,
proceedings, hearings, investigations, charges, complaints,
claims, demands, injunctions, judgments, orders, decrees,
rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes,
liens, losses, expenses, and fees, including court costs and
attorneys' fees and expenses.
"Affiliate" has the meaning set forth in Rule 12b-2 of the
regulations promulgated under the Securities Exchange Act of
1934, as amended.
"Business" means all of the assets and contractual rights of
the business conducted by the Seller as a sole proprietorship
under the name "Amerex," of or pertaining to trip hazard removal
and concrete cutting.
"Buyer" has the meaning set forth in the preface above.
"Income Tax" means any federal, state, local, or foreign
income tax, including any interest, penalty, or addition thereto,
whether disputed or not.
"Income Tax Return" means any return, declaration, report,
claim for refund, or information return or statement relating to
Income Taxes, including any schedule or attachment thereto, and
including any amendment thereof.
"Indemnified Party" has the meaning set forth in 8(d)
below.
"Indemnifying Party" has the meaning set forth in 8(d)
below.
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"Leases" means all leases, subleases, licenses, concessions
and other agreements (written or oral), including all amendments,
extensions, renewals, guaranties and other agreements with
respect thereto, pursuant to which the Business holds an interest
in any real property.
"Ordinary Course of Business" means the ordinary course of
business consistent with past custom and practice (including with
respect to quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation,
an association, a joint stock company, a trust, a joint venture,
an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"Purchase Price" has the meaning set forth in 2(c) below.
"Securities Act" means the Securities Act of 1933, as
amended.
"Security Interest" means any mortgage, pledge, lien,
encumbrance, charge, or other security interest, other than (a)
mechanic's, materialmen's, and similar liens, (b) liens for taxes
not yet due and payable, (c) purchase money liens and liens
securing rental payments under capital lease arrangements, and
(d) other liens arising in the Ordinary Course of Business and
not incurred in connection with the borrowing of money.
"Seller" has the meaning set forth in the preface above.
"Tax" means any federal, state, local, or foreign income,
gross receipts, license, payroll, employment, excise, severance,
stamp, occupation, premium, windfall profits, environmental,
customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration,
value added, alternative or add-on minimum, estimated, or other
tax of any kind whatsoever, including any interest, penalty, or
addition thereto, whether disputed or not.
"Tax Return" means any return, declaration, report, claim
for refund, or information return or statement relating to Taxes,
including any schedule or attachment thereto, and including any
amendment thereof.
"Third Party Claim" has the meaning set forth in 8(d)
below.
2. Basic Transaction.
(a) Purchase and Sale of Assets. On and subject to the
terms and conditions of this Agreement, the Buyer agrees to
purchase from Seller, and Seller agrees to sell, transfer,
convey, and deliver to the Buyer, all of the Acquired Assets at
the closing for the consideration specified below in this 2.
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(b) Assumption of Liabilities. Buyer will not assume or be
responsible for any of the liabilities of Seller pertaining to
the Business existing as of the date of sale of the Acquired
Assets to Buyer.
(c) Purchase Price. The Buyer agrees to pay to Seller on
the effective date of the transaction as the full purchase price
for the Acquired Assets 175,000 shares of the restricted common
stock of Buyer, and cash in the amount of $200,000.
(d) Effective Date. The effective date of the purchase and
sale of the Acquired Assets is January 1, 2002. The closing of
the transactions contemplated by this Agreement shall take place
at the offices of Buyer at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, commencing at 2:00 p.m. local time January 3, 2002.
(e) Deliveries at the Closing. At the closing, (i) Seller
will execute, acknowledge (if appropriate), and deliver to the
Buyer (A) assignments in the forms attached hereto as Exhibit A
and (B) such other instruments of sale, transfer, conveyance, and
assignment as the Buyer and its counsel may request; and (ii) the
Buyer will deliver to Seller the consideration specified in 2(c)
above.
(f) Allocation. The Parties agree to allocate the Purchase
Price (and all other capitalizable costs) among the Acquired
Assets for all purposes (including financial accounting and tax
purposes) in accordance with the allocation set forth on Exhibit
A attached hereto.
3. Representations and Warranties of Seller. Seller represents
and warrants to the Buyer that the statements contained in this
3 are correct and complete as of the date of this Agreement and
will be correct and complete as of the closing date (as though
made then and as though the closing date were substituted for the
date of this Agreement throughout this 3).
(a) Organization of Seller. Seller is a sole
proprietorship doing business in the state of Utah under the name
"Amerex."
(b) Authorization of Transaction. Seller has full power
and authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement constitutes
the valid and legally binding obligation of Seller, enforceable
in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby (including the assignments
referred to in 2 above), will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government,
governmental agency, or court to which any of Seller and its
Affiliates is subject or (ii) conflict with, result in a breach
of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify,
or cancel, or require any notice under any agreement, contract,
lease, license, instrument, or other arrangement to which any of
Seller and its Affiliates is a party or by which it is bound or
to which any of its assets is subject (or result in the
imposition of any Security Interest upon any of its assets),
except where the violation, conflict, breach, default,
acceleration,
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termination, modification, cancellation, failure to
give notice, or Security Interest would not have a material
adverse effect on the business, financial condition, operations,
results of operations, or future prospects of the Business or on
the ability of the Parties to consummate the transactions
contemplated by this Agreement. Seller is not required to give
any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in
order for the Parties to consummate the transactions contemplated
by this Agreement (including the assignments referred to in 2
above), except where the failure to give notice, to file, or to
obtain any authorization, consent, or approval would not have a
material adverse effect on the business, financial condition,
operations, results of operations, or future prospects of the
Business or on the ability of the Parties to consummate the
transactions contemplated by this Agreement.
(d) Brokers' Fees. Seller has no liability or obligation
to pay any fees or commissions to any broker, finder, or agent
with respect to the transactions contemplated by this Agreement
for which the Buyer could become liable or obligated.
(e) Title to Assets. The Seller has good and marketable
title to, or a valid leasehold interest in, the properties and
assets used by it, located on its premises as of the closing.
Without limiting the generality of the foregoing, the Seller has
good and marketable title to all of the Acquired Assets, free and
clear of any Security Interest or restriction on transfer.
(f) Disclosure. The representations and warranties
contained in this 3 do not contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements and information contained in this 3
not misleading.
(g) Investment. Seller (i) understands that the Buyer's
common stock has not been, and will not be, registered under the
Securities Act, or under any state securities laws, and is being
sold in reliance upon federal and state exemptions for
transactions not involving any public offering and for
transactions by a person other than an issuer, underwriter, or
dealer, (ii) is acquiring the Buyer's common stock solely for its
own account for investment purposes, and not with a view to the
distribution thereof, (iii) has received certain information
concerning Buyer and has had the opportunity to obtain additional
information as desired in order to evaluate the merits and the
risks inherent in holding the Buyer's common stock, and (iv) is
able to bear the economic risk and lack of liquidity inherent in
holding the Buyer's common stock.
4. Representations and Warranties of the Buyer. The Buyer
represents and warrants to Seller that the statements contained
in this 4 are correct and complete as of the date of this
Agreement and will be correct and complete as of the closing date
(as though made then and as though the closing date were
substituted for the date of this Agreement throughout this 4).
(a) Organization of the Buyer. The Buyer is a corporation
duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation.
(b) Authorization of Transaction. The Buyer has full power
and authority (including full corporate power and authority) to
execute and deliver this Agreement and to perform its
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obligations
hereunder. This Agreement constitutes the valid and legally
binding obligation of the Buyer, enforceable in accordance with
its terms and conditions.
(c) Noncontravention. Neither the execution and the
delivery of this Agreement, nor the consummation of the
transactions contemplated hereby (including the assignments
referred to in 2 above), will (i) violate any constitution,
statute, regulation, rule, injunction, judgment, order, decree,
ruling, charge, or other restriction of any government,
governmental agency, or court to which the Buyer is subject or
any provision of its charter or bylaws or (ii) conflict with,
result in a breach of, constitute a default under, result in the
acceleration of, create in any party the right to accelerate,
terminate, modify, or cancel, or require any notice under any
agreement, contract, lease, license, instrument, or other
arrangement to which the Buyer is a party or by which it is bound
or to which any of its assets is subject, except where the
violation, conflict, breach, default, acceleration, termination,
modification, cancellation, failure to give notice, or Security
Interest would not have a material adverse effect on the ability
of the Parties to consummate the transactions contemplated by
this Agreement. The Buyer does not need to give any notice to,
make any filing with, or obtain any authorization, consent, or
approval of any government or governmental agency in order for
the Parties to consummate the transactions contemplated by this
Agreement (including the assignments referred to in 2 above),
except where the failure to give notice, to file, or to obtain
any authorization, consent, or approval would not have a material
adverse effect on the ability of the Parties to consummate the
transactions contemplated by this Agreement.
(d) Brokers' Fees. The Buyer has no liability or
obligation to pay any fees or commissions to any broker, finder,
or agent with respect to the transactions contemplated by this
Agreement for which Seller could become liable or obligated.
(e) Periodic Reports. The Buyer has delivered to Seller
copies of its annual report on Form 10-KSB for the year ended
December 30, 2000, and quarterly reports on Form 10-QSB for each
of the calendar quarters ended March 31, June 30, and September
30, 2001. All of such reports do not contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements and information
contained in therein not misleading.
(f) Disclosure. The representations and warranties
contained in this 4 do not contain any untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements and information contained in this 4
not misleading.
5. Pre-closing Covenants. The Parties agree as follows with
respect to the period between the execution of this Agreement and
the closing.
(a) General. Each of the Parties will use its reasonable
best efforts to take all action and to do all things necessary,
proper, or advisable in order to consummate and make effective
the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth
in 7 below).
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(b) Operation of Business. Seller will not cause or permit
the Business to engage in any practice, take any action, or enter
into any transaction outside the Ordinary Course of Business.
(c) Preservation of Business. Seller will cause the
Business to keep its business and properties substantially
intact, including its present operations, physical facilities,
working conditions, and relationships with lessors, licensors,
suppliers, customers, and employees.
(d) Full Access. Seller will permit (and will cause the
Business to permit) representatives of the Buyer to have full
access at all reasonable times, and in a manner so as not to
interfere with the normal business operations of the Business, to
all premises, properties, personnel, books, records (including
tax records), contracts, and documents of or pertaining to the
Business.
(e) Notice of Developments. Each Party will give prompt
written notice to the other Party of any material adverse
development causing a breach of any of its own representations
and warranties in 3 and 4 above.
(f) Leases. Seller will not cause or permit any Lease to
be amended, modified, extended, renewed or terminated; nor shall
the Business enter into any new lease, sublease, license or other
agreement for the use or occupancy of any real property without
the prior written consent of the Buyer.
6. Post-closing Covenants. The Parties agree as follows with
respect to the period following the closing.
(a) General. In case at any time after the closing any
further action is necessary to carry out the purposes of this
Agreement, each of the Parties will take such further action
(including the execution and delivery of such further instruments
and documents) as the other Party may request, all at the sole
cost and expense of the requesting Party (unless the requesting
Party is entitled to indemnification there for under 8 below).
Seller acknowledges and agrees that from and after the closing
the Buyer will be entitled to possession of all documents, books,
records (including tax records), agreements, and financial data
of any sort relating to the Business. From and after the closing
Buyer will grant to Seller the right to examine and copy during
normal business hours at the sole cost and expense of Seller all
books, records (including tax records), and financial data, as
may be reasonably required for Seller to prepare its annual
financial statements and tax returns for the year ended December
31, 2001.
(b) Litigation Support. In the event and for so long as
any Party actively is contesting or defending against any action,
suit, proceeding, hearing, investigation, charge, complaint,
claim, or demand in connection with (i) any transaction
contemplated under this Agreement or (ii) any fact, situation,
circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act, or
transaction on or prior to the closing date involving the
Business, the other Party will cooperate with the contesting or
defending Party and its counsel in the contest or defense, make
available its personnel, and provide such testimony and access to
its books and records as shall be necessary in connection with
the contest or defense, all at the sole
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cost and expense of the
contesting or defending Party (unless the contesting or defending
Party is entitled to indemnification there for under 8 below).
(c) Transition. Seller will not take any action that is
designed or intended to have the effect of discouraging any
lessor, licensor, customer, supplier, or other business associate
of the Business from maintaining the same business relationships
with the Buyer after the closing as it maintained with the
Business prior to the closing.
7. Conditions to Obligation to Close.
(a) Conditions to Obligation of the Buyer. The obligation
of the Buyer to consummate the transactions to be performed by it
in connection with the closing is subject to satisfaction of the
following conditions:
(i) the representations and warranties set forth in 3
above shall be true and correct in all material respects at
and as of the closing date;
(ii) Seller shall have performed and complied with all
of its covenants hereunder in all material respects through
the closing;
(iii) no action, suit, or proceeding shall be
pending before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction
or before any arbitrator wherein an unfavorable injunction,
judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this
Agreement, (B) cause any of the transactions contemplated by
this Agreement to be rescinded following consummation, or
(C) affect adversely the right of the Buyer to own the
Acquired Assets and to operate the former businesses of the
Business; and
(iv) all actions to be taken by Seller in connection
with consummation of the transactions contemplated hereby
and all certificates, instruments, and other documents
required to effect the transactions contemplated hereby will
be reasonably satisfactory in form and substance to the
Buyer.
The Buyer may waive any condition specified in this 7(a) if it
executes a writing so stating at or prior to the closing.
(b) Conditions to Obligation of Seller. The obligation of
Seller to consummate the transactions to be performed by it in
connection with the closing is subject to satisfaction of the
following conditions:
(i) the representations and warranties set forth in 4
above shall be true and correct in all material respects at
and as of the closing date;
(ii) the Buyer shall have performed and complied with
all of its covenants hereunder in all material respects
through the closing;
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(iii) no action, suit, or proceeding shall be
pending before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction
or before any arbitrator wherein an unfavorable injunction,
judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this
Agreement or (B) cause any of the transactions contemplated
by this Agreement to be rescinded following consummation
(and no such injunction, judgment, order, decree, ruling, or
charge shall be in effect); and
(iv) all actions to be taken by the Buyer in connection
with consummation of the transactions contemplated hereby
and all certificates, instruments, and other documents
required to effect the transactions contemplated hereby will
be reasonably satisfactory in form and substance to Seller.
Seller may waive any condition specified in this 7(b) if it
executes a writing so stating at or prior to the closing.
8. Remedies for Breaches of This Agreement.
(a) Survival of Representations and Warranties. All of the
other representations and warranties of the Parties contained in
this Agreement shall survive the closing (even if the damaged
Party knew or had reason to know of any misrepresentation or
breach of warranty at the time of closing) and continue in full
force and effect for a period of two years thereafter.
(b) Indemnification Provisions for Benefit of the Buyer.
(i) In the event Seller breaches any of its
representations, warranties, and covenants contained in this
Agreement, and, if there is an applicable survival period
pursuant to 8(a) above, provided that the Buyer makes a
written claim for indemnification against Seller pursuant to
10(g) below within such survival period, then Seller agrees
to indemnify the Buyer from and against the entirety of any
Adverse Consequences the Buyer may suffer through and after
the date of the claim for indemnification (including any
Adverse Consequences the Buyer may suffer after the end of
any applicable survival period) resulting from, arising out
of, relating to, in the nature of, or caused by the breach;
provided, however, that (A) Seller shall not have any
obligation to indemnify the Buyer from and against any
Adverse Consequences resulting from, arising out of,
relating to, in the nature of, or caused by the breach of
any representation, warranty, or covenant of Seller until
the Buyer has suffered Adverse Consequences by reason of all
such breaches in excess of a $5,000 aggregate deductible
(after which point Seller will be obligated only to
indemnify the Buyer from and against further such Adverse
Consequences) and (B) there will be a $200,000 aggregate
ceiling on the obligation of Seller to indemnify the Buyer
from and against Adverse Consequences resulting from,
arising out of, relating to, in the nature of, or caused by
breaches of the representations, warranties, and covenants
of Seller contained in this Agreement.
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(ii) Seller agrees to indemnify the Buyer from and
against the entirety of any Adverse Consequences the Buyer
may suffer resulting from, arising out of, relating to, in
the nature of, or caused by:
(A) any liability of Seller existing as of the
date of closing (including any liability of Seller that
becomes a liability of the Buyer under any bulk
transfer law of any jurisdiction, under any common law
doctrine of de facto merger or successor liability, or
otherwise by operation of law); or
(B) any liability of the Seller or its Affiliates
for unpaid Income Taxes or other unpaid Taxes with
respect to any Tax year or portion thereof ending on or
before the effective date.
(c) Indemnification Provisions for Benefit of Seller.
(i) In the event the Buyer breaches any of its
representations, warranties, and covenants contained in this
Agreement, and, if there is an applicable survival period
pursuant to 8(a) above, provided that Seller makes a
written claim for indemnification against the Buyer pursuant
to 10(g) below within such survival period, then the Buyer
agrees to indemnify Seller from and against the entirety of
any Adverse Consequences Seller may suffer through and after
the date of the claim for indemnification (including any
Adverse Consequences Seller may suffer after the end of any
applicable survival period) resulting from, arising out of,
relating to, in the nature of, or caused by the breach;
provided, however, that (A) the Buyer shall not have any
obligation to indemnify Seller from and against any Adverse
Consequences resulting from, arising out of, relating to, in
the nature of, or caused by the breach of any
representation, warranty, or covenant of the Buyer until
Seller has suffered Adverse Consequences by reason of all
such breaches in excess of a $5,000 aggregate deductible
(after which point the Buyer will be obligated only to
indemnify the Seller from and against further such Adverse
Consequences) and (B) there will be a $200,000 aggregate
ceiling on the obligation of the Buyer to indemnify the
Seller from and against Adverse Consequences resulting from,
arising out of, relating to, in the nature of, or caused by
breaches of the representations, warranties, and covenants
of the Buyer contained in this Agreement.
(d) Matters Involving Third Parties.
(i) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third
Party Claim") which may give rise to a claim for
indemnification against the other Party (the "Indemnifying
Party") under this 8, then the Indemnified Party shall
promptly notify the Indemnifying Party thereof in writing;
provided, however, that no delay on the part of the
Indemnified Party in notifying the Indemnifying Party shall
relieve the Indemnifying Party from any obligation hereunder
unless (and then solely to the extent) the Indemnifying
Party thereby is prejudiced.
(ii) The Indemnifying Party will have the right to
assume the defense of the Third Party Claim with counsel of
its choice reasonably satisfactory to the Indemnified
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Party
at any time within 15 days after the Indemnified Party has
given notice of the Third Party Claim; provided, however,
that the Indemnifying Party must conduct the defense of the
Third Party Claim actively and diligently thereafter in
order to preserve its rights in this regard; and provided
further that the Indemnified Party may retain separate co-
counsel at its sole cost and expense and participate in the
defense of the Third Party Claim.
(iii) So long as the Indemnifying Party has assumed
and is conducting the defense of the Third Party Claim in
accordance with 8(d)(ii) above, (A) the Indemnifying Party
will not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without
the prior written consent of the Indemnified Party (not to
be withheld unreasonably) unless the judgment or proposed
settlement involves only the payment of money damages by the
Indemnifying Party and does not impose an injunction or
other equitable relief upon the Indemnified Party and (B)
the Indemnified Party will not consent to the entry of any
judgment or enter into any settlement with respect to the
Third Party Claim without the prior written consent of the
Indemnifying Party (not to be withheld unreasonably).
(iv) In the event the Indemnifying Party does not
assume and conduct the defense of the Third Party Claim in
accordance with 8(d)(ii) above, however, (A) the
Indemnified Party may defend against, and consent to the
entry of any judgment or enter into any settlement with
respect to, the Third Party Claim in any manner it
reasonably may deem appropriate (and the Indemnified Party
need not consult with, or obtain any consent from, the
Indemnifying Party in connection therewith) and (B) the
Indemnifying Party will remain responsible for any Adverse
Consequences the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of, or
caused by the Third Party Claim to the fullest extent
provided in this 8.
(e) Determination of Adverse Consequences. The Parties
shall make appropriate adjustments for tax consequences and
insurance coverage and take into account the time cost of money
(using the Applicable Rate published by the Internal Revenue
Service for the month in which the dollar value of the Adverse
Consequences are finally determined as the discount rate) in
determining Adverse Consequences for purposes of this 8. All
indemnification payments under this 8 shall be deemed
adjustments to the Purchase Price.
(f) Exclusive Remedy. The Buyer and Seller acknowledge and
agree that the foregoing indemnification provisions in this 8
shall be the exclusive remedy of the Buyer and Seller with
respect to the Business and the transactions contemplated by this
Agreement.
9. Termination.
(a) Termination of Agreement. Certain of the Parties may
terminate this Agreement as provided below:
(i) the Buyer and Seller may terminate this Agreement
by mutual written consent at any time prior to the closing;
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(ii) the Buyer may terminate this Agreement by giving
written notice to Seller at any time prior to the closing
(A) in the event Seller has breached any material
representation, warranty, or covenant contained in this
Agreement in any material respect, the Buyer has notified
Seller of the breach, and the breach is not cured prior to
closing, or (B) if the closing shall not have occurred on or
before January 2, 2002, by reason of the failure of any
condition precedent under 7(a) hereof (unless the failure
results primarily from the Buyer itself breaching any
representation, warranty, or covenant contained in this
Agreement); and
(iii) Seller may terminate this Agreement by giving
written notice to the Buyer at any time prior to the closing
(A) in the event the Buyer has breached any material
representation, warranty, or covenant contained in this
Agreement in any material respect, Seller has notified the
Buyer of the breach, and the breach is not cured prior to
closing, or (B) if the closing shall not have occurred on or
before January 2, 2002, by ▇▇▇▇▇ of the failure of any
condition precedent under 7(b) hereof (unless the failure
results primarily from Seller itself breaching any
representation, warranty, or covenant contained in this
Agreement).
(b) Effect of Termination. If any Party terminates this
Agreement pursuant to 9(a) above, all rights and obligations of
the Parties hereunder shall terminate without any liability of
any Party to the other Party (except for any liability of any
Party then in breach).
10. Miscellaneous.
(a) Press Releases and Public Announcements. No Party
shall issue any press release or public announcement relating to
the subject matter of this Agreement prior to the closing without
the prior written approval of the other Party; provided, however,
that any Party may make any public disclosure it believes in good
faith is required by applicable law or any listing or trading
agreement concerning its publicly-traded securities (in which
case the disclosing Party will use its reasonable best efforts to
advise the other Party prior to making the disclosure).
(b) No Third-Party Beneficiaries. This Agreement shall not
confer any rights or remedies upon any Person other than the
Parties and their respective successors and permitted assigns.
(c) Entire Agreement. This Agreement (including the
documents referred to herein) constitutes the entire agreement
between the Parties and supersedes any prior understandings,
agreements, or representations by or between the Parties, written
or oral, to the extent they relate in any way to the subject
matter hereof.
(d) Succession and Assignment. This Agreement shall be
binding upon and inure to the benefit of the Parties named herein
and their respective successors and permitted assigns. No Party
may assign either this Agreement or any of its rights, interests,
or obligations hereunder without the prior written approval of
the other Party.
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(e) Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but
all of which together will constitute one and the same
instrument.
(f) Headings. The section headings contained in this
Agreement are inserted for convenience only and shall not affect
in any way the meaning or interpretation of this Agreement.
(g) Notices. All notices, requests, demands, claims, and
other communications hereunder will be in writing. Any notice,
request, demand, claim, or other communication hereunder shall be
deemed duly given if (and then two business days after) it is
sent by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set
forth below:
If to the Buyer: ▇▇▇▇▇▇▇.▇▇▇, Inc.
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to Seller: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address
set forth above using any other means (including personal
delivery, expedited courier, messenger service, telecopy, telex,
ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the
intended recipient. Any Party may change the address to which
notices, requests, demands, claims, and other communications
hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
(h) Governing Law. This Agreement shall be governed by and
construed in accordance with the domestic laws of the state of
Utah without giving effect to any choice or conflict of law
provision or rule (whether of the state of Utah or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the state of Utah.
(i) Amendments and Waivers. No amendment of any provision
of this Agreement shall be valid unless the same shall be in
writing and signed by the Buyer and Seller. No waiver by any
Party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed
to extend to any prior or subsequent default, misrepresentation,
or breach of warranty or covenant hereunder or affect in any way
any rights arising by virtue of any prior or subsequent such
occurrence.
(j) Severability. Any term or provision of this Agreement
that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of
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the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(k) Expenses. The Parties will each bear its own costs and
expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated
hereby.
(l) Construction. The Parties have participated jointly in
the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal,
state, local, or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated there under,
unless the context requires otherwise. The word "including"
shall mean including without limitation.
(m) Incorporation of Exhibits. The Exhibits identified in
this Agreement are incorporated herein by reference and made a
part hereof.
(n) Tax Matters.
(i) Seller will be responsible for the preparation and
filing of all Income Tax Returns for the Business for all
periods as to which Income Tax Returns are due before or
after the closing date, including the tax period ending
December 31, 2001. Seller will make all payments required
with respect to any such Income Tax Return.
(ii) The Buyer will be responsible for the preparation
and filing of all Income Tax Returns for the Business for
all periods commencing on the effective date as to which
Income Tax Returns are due after the closing date. The
Buyer will make all payments required with respect to any
such Income Tax Return.
IN WITNESS WHEREOF, the Parties hereto have executed this
Agreement as of the date first above written.
▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
SELLER
/s/ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Exhibit A
ASSIGNMENT AND GENERAL CONVEYANCE
STATE OF UTAH }
: ss
COUNTY OF __________________ }
KNOW ALL MEN BY THESE PRESENTS:
This Assignment and General Conveyance is executed and
delivered effective on January 1, 2002, by ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, an
individual, as Seller ("SELLER"), to ▇▇▇▇▇▇▇.▇▇▇, INC., a Utah
corporation as Buyer ("BUYER").
W I T N E S S E T H:
WHEREAS, SELLER is selling to BUYER, and BUYER is purchasing
from SELLER, certain assets of SELLER listed on Exhibit A hereto
("Acquired Assets") pursuant to the terms and conditions of that
certain Asset Purchase Agreement between the parties dated
December 27, 2001 ("Agreement");
NOW, THEREFORE, in consideration of the premises, mutual
covenants and agreements of the parties herein contained, and for
other good and valuable consideration, the receipt, adequacy and
sufficiency of which are hereby acknowledged:
1. Conveyance and Delivery. SELLER does hereby convey,
grant, bargain, sell, transfer, set over, assign, deliver, and
release unto BUYER and BUYER's successors and assigns to have and
hold forever, good and marketable title to the Acquired Assets,
all as listed and described in the Agreement and Exhibit A
hereto.
2. Title to the Acquired Assets. SELLER hereby represents
and warrants that:
(a) SELLER has good and marketable title to each and every
item of the Acquired Assets free and clear of all liens, claims,
charges, encumbrances, mortgages, options, restrictions, security
agreements, or any other encumbrance of any kind, character, or
description whatsoever, except as set forth in the Agreement and
the exhibits thereto;
(b) SELLER has all requisite power and authority to sell,
transfer, convey, and deliver the Acquired Assets to BUYER
pursuant to this instrument of conveyance; and
(c) SELLER will defend good and marketable title to the
Acquired Assets against any and all adverse claims whatsoever.
3. Condition of the Acquired Assets. The Acquired Assets
are being sold pursuant to this Assignment and General Conveyance
in their respective "as is, where is" condition
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without any
representation, warranty, whether express or implied, except as
set forth in paragraph 2, above, and the Agreement.
4. Further Assurances. SELLER agrees to execute and
deliver to BUYER any certificates, instruments, releases, and
other documents reasonably required to further assure BUYER with
respect to, and provide BUYER evidence of its full right, title,
and interest in and to the Acquired Assets.
5. Definitions. This Assignment and General Conveyance is
subject to all the terms and conditions of the Agreement. All
defined terms in the Agreement have the same meaning herein as
set forth in the Agreement.
IN WITNESS WHEREOF, this Assignment and General Conveyance
has been duly executed and delivered on the ____ day of January
2002.
_____________________________
▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Before me, the undersigned, a Notary Public, in and for said
County and State, on this _____ day of January 2002, personally
appeared ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, to me known to be the identical
person who subscribed his name to the foregoing instrument and
acknowledged to me that he executed the same as his act and deed.
_____________________________
Notary Public
E-17
Exhibit A to Assignment
ACQUIRED ASSETS
1. All right to use the business use portion of the leased real
property at ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇.
2. All of the Business' tangible personal property located at
the above leased real property consisting of the following:
1 1989 Dodge 3/4 ton Van $2,500
1 1988 Toyota 1/2 ton Pickup $1,225
1 1972 International 3/4 ton Pickup $1,000
1 1994 Pace Trailer 8x5 $ 800
1 1991 E-Z Go Golf Cart $ 800
1 1994 ICM Gas powered compressor $ 250
1 1995 Quincy gas powered compressor $ 100
12 Bosh Saw Motors $ 900
6 Shindawai Blowers $ 450
7 Metabo Grinder Motors $ 350
1 1998 Generac Generator MC4000 $ 250
2 1999 Generac Generator 4000XL $ 500
4 2001 Generac Generator 4000XL $1,250
15 Hubs $ 750
10 Saw Blades $ 870
Miscellaneous tools $ 700
TOTAL $12,695
3. The balance of the purchase price shall be for the following
intangible assets:
All of the Business' agreements, contracts, other similar
arrangements, and rights there under.
All of the Business' franchises, approvals, permits, licenses,
orders, registrations, certificates, and similar rights
obtained from governments and governmental agencies.
All of the Business' books, records, ledgers, files,
documents, correspondence, customer lists, and specifications,
creative materials, advertising and promotional materials,
studies, reports, and other printed or written materials.
All of the Business' inventions (whether patentable or
unpatentable and whether or not reduced to practice), all
improvements thereto, and all patents, patent applications,
and patent disclosures, together with all reissuances,
continuations, continuations-in-part, revisions, extensions,
and reexaminations thereof.
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The name and service ▇▇▇▇ "Amerex" and all other trademarks,
service marks, trade dress, logos, slogans, trade names,
corporate names, Internet domain names, together with all
translations, adaptations, derivations, and combinations
thereof and including all goodwill associated therewith, and
all applications, registrations, and renewals in connection
therewith.
All of the Business' copyrightable works, all copyrights, and
all applications, registrations, and renewals in connection
therewith.
All of the Business' trade secrets and confidential business
information, including, ideas, research and development, know-
how, technical data, designs, drawings, specifications,
customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals.
All of the Business' computer software, including, source
code, executable code, data, databases and related
documentation.
All of the Business's advertising and promotional materials.
All of the Goodwill of Business.
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