EXHIBIT 2.3
ASSET PURCHASE AGREEMENT
Between
▇▇▇▇▇▇▇.▇▇▇, INC.
and
BGS (SOUTHWEST FLORIDA) INC.
Dated as of August 4, 1999
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made and entered into this 4th day of
August, 1999 (the "Agreement") between ▇▇▇▇▇▇▇.▇▇▇, inc., a Florida corporation
(the "Buyer") and BGS (Southwest Florida) Inc., a Florida corporation (the
"Seller").
WHEREAS, the Seller owns and operates Whoodoo Studios (the "Business")
with facilities located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
WHEREAS, the Buyer wishes to purchase the Assets, as defined herein it
being the intention of the Buyer to employ such Assets as part of its own
business and not to continue the Seller's enterprise as such, it being
understood that the Buyer shall not be deemed to be a successor to, or a
continuation of the Seller; and
WHEREAS, subject to the foregoing, the Seller desires to sell and the
Buyer desires to purchase the Assets, in accordance with the terms, conditions,
and agreements hereinafter contained.
NOW THEREFORE, in consideration of the mutual premises and the
covenants and promises hereinafter contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto intending to be legally bound hereby agree as follows:
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Section 1. DEFINITIONS.
"ASSETS" shall have the same meaning as in Section 2.1
"ASSUMED LEASES" shall have the same meaning as in Section 2.1(c)
"ASSUMED OBLIGATIONS" shall have the same meaning as in Section 2.4
"BUYER INDEMNITEE(S)" Shall have the same meaning as in Section 8.2
"CLOSING DATE FINANCIAL STATEMENTS" shall have the same meaning as in
Section 4.1(v)
"CLOSING DATE or CLOSING" shall have the same meaning as in Section 2.6
"CONTRACTS" shall have the same meaning as in Section 2.1(d)
"EXCLUDED ASSETS" shall have the same meaning as in Section 2.2
"EXCLUDED OBLIGATIONS" shall have the same meaning as in Section 2.5
"FINANCIAL STATEMENTS" shall have the same meaning as in Section 4.1(v)
"INTANGIBLE ASSETS" shall have the same meaning as in Section 2.1(g)
"INTELLECTUAL PROPERTY" shall have the same meaning as in Section 2.1(f)
"Laws" shall have the same meaning as in Section 4.1(o)
"LEASE(S)" shall have the same meaning as in Section 4.1(i)
"LICENSES AND PERMITS" shall have the same meaning as in Section 4.1(l)
"LIENS" shall have the same meaning as in Section 2.3(b)
"LOSSES" shall have the same meaning as in Section 8.2
"PERSON" shall have the same meaning as in Section 2.5(b)
"PERSONAL PROPERTY" shall have the same meaning as in Section 2.1(b)
"PREPAID ITEMS" shall have the same meaning as in Section 2.4
"PURCHASE PRICE" shall have the same meaning as in Section 3.1
"REAL PROPERTY" shall have the same meaning as in Section 4.1(h)
"SELLER INDEMNITEE(S)" shall have the same meaning as in Section 8.3
"TAXES" shall have the same meaning as in Section 4.1(g)
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Section 2. SALE AND PURCHASE OF ASSETS.
2.1 SALE OF ASSETS. On the terms and subject to the conditions set
forth in this Agreement, at the Closing, the Seller will sell, convey, transfer
and assign to the Buyer, and the Buyer will purchase and accept from the Seller
all right, title and interest in and to all of the assets of the Seller used in
or related to the Business, including, without limitation, the assets described
in subsections (a) through (m) hereof, and excluding only the Excluded Assets
(collectively, the "Assets"), free and clear of all Liens.
(a) PREPAID ASSETS. All prepaid and deferred items or credits,
such as unbilled charges, deposits and other similar items reflected on Schedule
2.1(a).
(b) PERSONAL PROPERTY. All tangible personal property,
including, without limitation, all machinery, equipment, tools, dies, molds,
parts, furniture, furnishings, leasehold improvements, fixtures, computer
hardware and software, office equipment, vehicles and supplies including,
without limitation, those assets described on Schedule 2.1(b) (the "Personal
Property").
(c) LEASES. All rights of the Seller under the Leases set
forth on Schedule 2.1(c) (the "Assumed Leases").
(d) CONTRACTS. All rights and benefits of the Seller under all
contracts, agreements, license agreements, vendor agreements, purchase orders,
commitments, sales orders and supply agreements, including, without limitation,
those set forth on Schedule 2.1(d) (the "Contracts").
(e) LICENSES AND PERMITS. All right, title and interest in and
to all licenses, permits, approvals, and authorizations including, without
limitation, applications therefor, relating to the Seller's operation of the
Business which are held by or have been granted to, or have been applied for, by
the Seller, to the extent assignment or transfer is permitted by applicable Law.
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(f) INTELLECTUAL PROPERTY. All right, title and interest in
and to all URLs patents, licenses, copyrights, trademarks, trade names, service
marks (including the trademark and name of the Seller or any derivation
thereof), logos and slogans, and all of the goodwill associated therewith,
rights to software currently developed or being developed prior to this
acquisition or in the future and all registrations, applications and other
rights associated with the foregoing, if any, whether registered or
unregistered, now used or presently planned to be used by the Seller in
connection with the Business, including, without limitation, those set forth on
Schedule 2.1(f), including the right to ▇▇▇ for past infringement thereof
(collectively, the "Intellectual Property").
(g) INTANGIBLE ASSETS. All right, title and interest in and to
all know-how, technology, slogans, data, studies, confidential information,
restrictive covenants, computer software (including documentation and related
object and source codes), indemnity rights, and other intangible assets now used
or presently planned to be used by the Seller, and all of the goodwill
associated therewith, confidentiality obligations and similar obligations of
present and former shareholders, officers and employees of the Seller
(collectively, the "Intangible Assets").
(h) RECORDS AND DOCUMENTS. All books, records, files, papers,
technical and research analyses, engineering, sales, marketing and other
studies, data and plans, records and other data located at the Seller's
facilities in Naples, Florida or elsewhere in the Seller's custody or control,
or pertaining to the Business, including, without limitation, all supplier and
customer lists and other databases, licensee lists, distributor lists, bid
information, customer correspondence, quality assurance records, test reports,
invoices, job orders and technique sheets.
(i) TELEPHONE NUMBERS. The Seller's interest in and to all
telephone, e-mail and telex (if any) numbers and telephone and other directory
listings utilized in connection with the Business.
(j) WARRANTIES. All rights benefiting the Seller under any
warranty, express or implied, which relate to the Assets.
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(k) OTHER ASSETS. All tangible, intangible, real, personal and
mixed property, assets and rights which constitute part of the Business as an
ongoing business, wherever located, including, but not limited to, those assets
set forth on the Financial Statements, except as expressly set forth in Section
2.2, are to be conveyed to the Buyer as part of the Assets.
2.2 EXCLUDED ASSETS. Any provisions of this Agreement to the contrary
notwithstanding, there shall be excluded from the purchase and sale contemplated
hereunder those assets of the Seller described on Schedule 2.2 to this
Agreement, which assets shall not be considered or treated as Assets (the
"Excluded Assets").
2.3 METHOD OF CONVEYANCE.
(a) Upon payment of the Purchase Price described in Section 3,
the sale, transfer, conveyance, assignment and delivery by the Seller of the
Assets to the Buyer in accordance with Section 2.3(b) shall be effected on the
Closing Date by the Seller's execution and delivery of one or more bills of
sale, assignments, and other instruments of conveyance and transfer.
(b) At the Closing, the Seller shall sell, transfer, convey,
assign and deliver to the Buyer fee simple absolute title to and exclusive
possession of all of the Assets free and clear of
any and all liens, encumbrances, claims, charges, security interests, rights of
the Seller and any third party, rights of redemption, equities, and any other
restrictions of any kind or nature whatsoever, including any leases, escrows,
options, security or other deposits, rights of redemption, chattel mortgages,
conditional sales contracts, collateral security arrangements and other title or
interest retention arrangements (collectively, the "Liens") except as set forth
on Schedule 2.3(b).
(c) The Seller covenants and agrees that if either (i) any of
the Assets cannot be transferred or assigned by the Seller without the consent
of or notice to a third party and in respect of which any necessary consent or
notice has not been obtained or given as of the Closing Date, or (ii) any of the
Assets are non-assignable in their nature, the Seller will cause the beneficial
interest in and to the
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same, in any event, to pass to the Buyer; and the Seller covenants and agrees,
on and after the Closing Date, (1) to hold such Assets in trust for, and for the
benefit of, the Buyer; and (2) to use its best efforts to obtain and secure and
will have obtained and secured such consent within 30 days of the Closing Date
and to give such notice as may be required to effect valid transfer(s) or
assignment(s) of such Assets; and (3) to make or complete such transfer(s) or
assignment(s) as soon as possible.
2.4 ASSUMED OBLIGATIONS. At the Closing, the Buyer shall assume and
shall, subject to all rights of offset, defenses, causes of action,
counterclaims and claims of any nature against third parties that may be
available to the Buyer in respect of the Assumed Obligations, agree to satisfy
and discharge, as the same shall become due, (a) all of the Seller's obligations
under the contracts, agreements, commitments and Leases of the Seller which are
specifically identified in Schedule 2.4 and are assigned to the Buyer at
Closing, if and to the extent assignable, but only to the extent any such
obligations arise and accrue after the Closing and then only in respect of
events and time periods occurring after the Closing except with respect to the
prepaid and partially prepaid goods and services which arose prior to the
Closing (the "Prepaid Items"); and (b) all of the Seller's obligations under all
Licenses and Permits which are specifically identified in Schedule 2.4 and are
transferred to the Buyer at Closing, if and to the extent transferable, but only
to the extent any such liabilities and obligations accrue after the Closing and
then only in respect of events and time periods occurring after the Closing
(collectively, the "Assumed Obligations").
2.5 EXCLUDED OBLIGATIONS. The Buyer is not assuming, and the Seller
shall remain fully responsible for, all past, present and future indebtedness,
liabilities, obligations, contracts and commitments of the Seller and any
predecessors in interest of the Business, known or unknown, fixed or contingent,
whether arising out of or resulting from the Business or the assets thereof, or
otherwise, that are not Assumed Obligations (the "Excluded Obligations").
Without limiting the foregoing, the Excluded Obligations shall include, but not
limited to, any and all liabilities arising from or related to:
(a) the negligent acts or omissions of the Seller, whether in
tort or otherwise;
(b) product liability or similar claims for injury to any
person, corporation,
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association, partnership, limited liability company, joint venture,
organization, business, individual, government or any agency or political
subdivision thereof or any other entity (a "Person") or property with respect to
products purchased, manufactured or sold by the Seller prior to Closing;
(c) any suits, actions, or claims alleging infringement by the
Seller, prior to Closing, of patents, trademarks, trade names or other
intellectual property rights held by others;
(d) any liability for commitments made by the Seller relating
to the employment, relocation or termination (including, but not limited to,
severance pay) of any employee, officer or director of the Seller except as set
forth on Schedule 2.5(d);
(e) any liability or obligation of the Seller in respect of
any prior purchase and sale transactions;
(f) any other suits, actions or claims against the Seller;
(g) any liability or obligation relating to an Excluded Asset;
(h) any inter-company liabilities including liabilities
between the Seller and its subsidiaries, if any;
(i) any liability or obligation for prepaid and partially
prepaid goods and services in excess of the Prepaid Items set forth on Schedule
2.5(i);
All Excluded Obligations shall remain the sole responsibility of the
Seller, and the Seller agrees to pay, perform, discharge, and indemnify, in
accordance with Section 2.5 hereof, the Buyer from and against, any and all such
indebtedness, obligations and liabilities.
2.6 CLOSING DATE. The closing of the transactions contemplated by this
Agreement shall take place on August 4, 1999 at 10:00 a.m. (the "Closing" or
"Closing Date") at the offices of ▇▇▇▇▇▇▇
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▇▇▇▇▇▇, P.A. or, at such other date, time and place as may be agreed upon by the
parties.
Section 3. PURCHASE PRICE.
3.1 PURCHASE PRICE. At the Closing, the Seller shall convey, transfer,
assign and deliver to the Buyer the Assets in exchange for (a) the Buyer's
assumption of the Assumed Obligations and (b) the Buyer's delivery to the Seller
of a cashier's or certified check in the amount of $100,000 U.S. dollars made
payable to the Seller (the "Purchase Price").
3.2 ALLOCATION. The Seller and the Buyer agree that the Purchase Price
shall be allocated among the Assets in accordance with Schedule 3.2. The Seller
further agrees to cooperate with the Buyer in completing and delivering to the
Buyer or the Internal Revenue Service such information concerning the
determination of the Purchase Price as may be required pursuant to the Internal
Revenue Code.
3.3 ADJUSTMENT TO PURCHASE PRICE. The Purchase Price shall be reduced
to reflect those adjustments to the Purchase Price as set forth on Schedule 3.3
as well as those adjustments to give effect to pro-rated items pursuant to
Section __.
Section 4. REPRESENTATIONS AND WARRANTIES.
4.1 THE SELLER'S REPRESENTATIONS AND WARRANTIES. The Seller hereby
represents and warrants to the Buyer, all of which representations and
warranties are true, complete, and correct in all respects as of the date hereof
and as of the Closing Date, as follows:
(a) ORGANIZATION AND QUALIFICATION. The Seller is a
corporation duly organized, validly existing and in good standing under the Laws
of the jurisdiction of its incorporation. The Seller has all requisite power and
authority to own those properties and conduct those businesses presently owned
or conducted by it, and is duly qualified to do business as it is now being
conducted and is in good standing as a foreign corporation in each other
jurisdiction where the property owned, leased or
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used by it or the conduct of its business makes such qualification necessary.
The copies of the Articles of Incorporation and bylaws of the Seller, which have
been delivered to the Buyer, are complete and correct and are in full force and
effect at the date hereof.
(b) AUTHORIZATION; NO RESTRICTIONS, CONSENTS OR APPROVALS. The
Seller has full power and authority to enter into and perform this Agreement and
all corporate action necessary to authorize the execution and delivery of this
Agreement and the performance its obligations hereunder has been duly taken.
This Agreement has been duly executed by the Seller and constitutes the legal,
valid, binding and enforceable obligation of the Seller, enforceable against the
Seller in accordance with its terms subject to the qualification that the
enforcement of certain rights and remedies contained in the Agreement may be
limited or affected by applicable bankruptcy, insolvency, reorganization, and
other federal and state laws relating to or affecting creditors or secured
parties' rights and remedies and to general principles of equity. The execution
and delivery of this Agreement, the sale of the Assets and the consummation by
the Seller of the transactions contemplated herein, do not and will not on the
Closing Date (i) conflict with or violate any of the terms of the Articles of
Incorporation and bylaws of the Seller or any applicable bylaws relating to the
Seller, (ii) conflict with, or result in a breach of any of the terms of, or
result in the acceleration of any indebtedness or obligations under, any
agreement, obligation or instrument by which the Seller is bound or to which any
property of the Seller is subject, or constitute a default thereunder, (iii)
result in the creation or imposition of any Lien on any of the Assets, (iv)
except as set forth in Schedule 4.1 (b), constitute an event permitting
termination of any agreement or instrument to which the Seller is a party or by
which any property or asset of the Seller is bound or affected, pursuant to the
terms of such agreement or instrument, or (v) conflict with, or result in or
constitute a default under or breach or violation of or grounds for termination
of, any license, permit or other governmental authorization to which the Seller
is a party or by which the Seller may be bound, or result in the violation by
the Seller or of any Laws to which the Seller or any assets of the Seller or may
be subject, which would materially adversely affect the transactions
contemplated herein. Except as set forth in Schedule 4.1(b) no authorization,
consent or approval of, notice to, or filing with, any public body or
governmental authority or any other person is necessary or required in
connection with the execution and delivery by the Seller and of this Agreement
or the performance by the Seller and of their respective obligations hereunder.
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(c) CAPITALIZATION. The authorized capital stock of the Seller
consists of 10,000 shares of common stock of which _____ shares are issued and
outstanding. The shareholders of the Seller have approved the transactions
contemplated by this Agreement including the sale of the Assets. All of the
issued and outstanding shares are validly issued and are fully paid,
non-assessable and free of preemptive rights.
(d) SUBSIDIARIES. Except as disclosed on Schedule 4(d), the
Seller has no Subsidiaries and does not own any interest in any corporation,
partnership, joint venture, limited liability company, association, trust or
entity.
(e) 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 the Seller could become
liable or obligated.
(f) ABSENCE OF CERTAIN CHANGES. Except to the extent set forth
on Schedule 4.1(f), since June 30, 1999, there has not been any material adverse
change or development involving a prospective material adverse change with
respect to the Business or the financial position or results of operations of
the Business taken as a whole, including without limitation, (i) any damage or
destruction or property loss whether or not covered by insurance, materially and
adversely affecting the properties or business of the Seller, (ii) any increase
in the compensation or bonus, incentive compensation, profit sharing,
retirement, insurance, medical reimbursement or other employee benefit plan or
arrangement payable or owed or to become payable or owed by the Seller, other
than increases made on the basis of historical practice and in the ordinary
course of business, compensation increases attendant to promotions and falling
within the normal range for the new position and scheduled increases under the
existing collective bargaining agreement, (iii) any sale or other disposition of
any capital asset other than sales or disposition of Excluded Assets or sales or
disposition of scrap made in the ordinary course of business, (iv) any entry by
the Seller into any material commitment or transaction (including, without
limitation, any borrowing, or capital expenditure), other than those commitments
and transactions entered into in the ordinary course of business, or those
contemplated by or within the limits permitted
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by this Agreement, (v) any release or waiver of any material right or claim of
the Seller with respect to any of the Contracts, the Leases, the Licenses and
Permits or the Intellectual Property, (vi) any Lien on any of the Assets, or
(vii) any material change by the Seller in accounting principles or methods.
(g) TAXES. Except as set forth on Schedule 4.1(g), the Seller
has timely filed (timely being understood to include all properly granted
extensions) all returns required to be filed by it with respect to all foreign,
federal, state and local and foreign income, payroll, employment, unemployment,
withholding, excise, sales, personal property, use, business and occupation,
franchise and occupancy, real estate, or other taxes (all of the foregoing taxes
including interest and penalties thereon and including estimated taxes, being
hereinafter collectively the "Taxes") and has paid or reserved all Taxes which
are shown to have become due pursuant to such returns and has paid or reserved
all other Taxes for which it has received a notice of assessment or demand for
payment or has otherwise been made aware of a deficiency. All such returns or
reports are true and correct in all material respects.
(h) TITLE TO ASSETS. The Seller has good and marketable title
to all of the Assets, free and clear of any Lien. The Seller has valid and
perfected security interests in all assets consigned to third parties. Schedule
4.1 (h) contains an accurate and complete list of all the real property owned,
leased or operated by the Seller, including without limitation, all structures,
improvements and fixtures thereon and all water lines, rights-of-way, other
rights, privileges, uses, licenses, easements, hereditaments and appurtenances
belonging or appertaining thereto (collectively, the "Real Property").
(i) LEASES. Schedule 4.1 (i) sets forth a complete and
accurate listing or description of all real and personal property leases,
subleases, concessions, licenses, occupancy agreements, conditional sales
agreements or other title retention agreements (collectively, the "Leases" and
individually a "Lease") to which the Seller is a party in connection with the
Business. Each of the Leases is valid, binding and enforceable in accordance
with its terms, subject to the qualification that the enforcement of certain
rights and remedies contained in the Leases may be limited or affected by
applicable bankruptcy, insolvency, reorganization, and other federal and state
laws relating to or
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affecting creditors or secured parties' rights and remedies and to general
principles of equity, and is in full force and effect; to the best of the
Seller's knowledge, there are no existing defaults on the part of the Seller or,
to the best of the Seller's knowledge, any other party, under any Lease, and no
event of default under any such Lease has occurred and is continuing which
(whether with or without the giving of notice, lapse of time or both, or the
happening of any other event) would constitute a default under such Lease; each
such Lease will, subject to obtaining any consent listed in Schedule 2.4,
continue to be in full force and effect on the same terms and conditions
immediately after the Closing without the need for any action on the part of the
Buyer; to the best of the Seller's knowledge, each such Lease reflects the
complete understanding among the parties thereto; and accurate and complete
copies of each such Lease including all amendments thereto, have been delivered
to the Buyer at or prior to the date hereof. The Seller's interest in each of
the Leases is free and clear of all Liens or other encumbrances (other than any
created by the Buyer) and are not, in the case of real property, except as set
forth in Schedule 4.1(h), subject to any rights of way, building use
restrictions, exceptions, variances, easements (recorded or unrecorded), rights
of redemption, reservations or limitations of any nature whatsoever of which the
Seller has knowledge which may materially interfere with the Buyer's use thereof
in a manner consistent with the Seller's use thereof prior to Closing.
(j) CONTRACTS AND OTHER DOCUMENTS. Except for those Contracts
which are listed on Schedule 4.1(j) and those Leases listed on Schedule 4.1(i),
or which have been entered into by the Seller in the ordinary course of business
and do not involve payment or receipt of more than $2,500, the Seller is not a
party to any Contract, Lease or similar document. Neither the Seller nor, to the
best of the Seller's knowledge, any other party is in default under any Contract
or other instrument to which the Seller is a party or by which it is bound. No
Contract continues for a period of more than three (3) months from the Closing
Date or is in excess of the normal, ordinary and usual requirements of the
Business.
(k) LABOR DIFFICULTIES. Except as set forth in Schedule
4.1(k), (i) the Seller is not a party with respect to the Business to a union
agreement or collective bargaining agreement and no attempt to organize any
employees of the Seller has been made, proposed or threatened; (ii) there is no
labor strike, formal labor dispute, formal labor grievance, labor arbitration
proceeding, general
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slowdown or stoppage, or charge of unfair labor practice pending before a court,
regulatory body or arbitration tribunal, or, to the best of the Seller's
knowledge, threatened against or affecting the Assets or the Business, and to
the best of the Seller's knowledge no event has occurred which would constitute
reasonable grounds for such a strike, dispute, grievance, proceeding or charge;
(iii) no union representation question exists respecting any employees of the
Seller; (iv) to the best of the Seller's knowledge, there are no charges or
complaints of discrimination pending before the United States Equal Employment
Opportunity Commission or any other federal, state, local or foreign agency or
tribunal against the Seller in connection with the Business; (v) to the best of
the Seller's knowledge, the Seller does not presently employ, and at no time
during the past year did it employ, any illegal alien; and (vi) the Seller is in
compliance in all material respects with all federal, state and local labor and
employment-related Laws applicable to the Business.
(l) LICENSES AND PERMITS. The Seller has obtained, has fully
paid for, and has in full force and effect all licenses, franchises, permits,
approvals, certificates, certifications and other authorizations from all
applicable governmental authorities which are necessary for the conduct of the
Business as currently conducted and the ownership, use, occupancy and operation
of the Assets (the "Licenses and Permits"). Schedule 4.1(l) sets forth a
complete and accurate list of all Licenses and Permits. The execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in the revocation, cancellation, suspension,
modification, or limitation of any of the Licenses and Permits and will not give
to any Person any right to revoke, cancel, suspend, modify, or limit any of the
Licenses and Permits. Renewal of each of the Licenses and Permits has been, or
will be as of the Closing Date, timely applied for to the extent required under
all Laws, including but not limited to, all environmental laws and to the extent
appropriate to protect renewal rights thereunder. To the best of the Seller's
knowledge, there is no fact or event which is likely to prevent the renewal of
any of the Licenses and Permits under existing Law or which, with the passage of
time or the giving of notice or both, is likely to constitute a violation of the
terms of any of the Licenses and Permits or of any applications or agreements
made in connection therewith. No action or proceeding is pending or, to the best
of the Seller knowledge, threatened which could result in the revocation,
cancellation, suspension, modification, or limitation of any of the Licenses and
Permits. All Licenses and Permits are transferable to the Buyer. The Seller
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does not owe any monies for the Licenses and Permits which have been granted to
it.
(m) ACCOUNTS RECEIVABLE. Schedule 4.1(m) sets forth a complete
and accurate schedule including an aging schedule for all of the Seller's
Accounts Receivable as of five business days prior to the date hereof, all of
the Seller's Accounts Receivable arose from bona fide transactions in the
ordinary course of business of the Seller, have not been discounted, and no
counterclaim or right of set-off has been asserted with respect thereto.
(n) ABSENCE OF UNDISCLOSED LIABILITIES. Except as set forth in
Schedule 4.1(n), the Seller does not have any material liability or obligation
of any nature, whether contingent, accrued, absolute, unasserted or otherwise,
other than liabilities or obligations reflected in the Financial Statements or
the Closing Date Financial Statements.
(o) COMPLIANCE WITH LAW. Except as set forth in Schedule
4.1(o), the Seller has at all times operated in all respects and is presently in
compliance in all material respects with all applicable federal, state, local,
foreign or other laws, rules, regulations, guidelines, orders, injunctions,
building and other codes, ordinances, permits, licenses, authorizations,
judgments, decrees of federal, state, local, foreign or other authorities, and
all orders, writs, decrees and consents of any governmental or political
subdivision or agency thereof, or any court or similar Person established by any
such governmental or political subdivision or agency thereof (collectively, the
"Laws"), including but not limited to all applicable domestic and foreign Laws,
rules and regulations relating to the safe conduct of business, employment
discrimination, wages and hours, employment of illegal aliens, collective
bargaining, the payment of withholding and social security taxes, product
labeling, antitrust, consumer protection, occupational safety and health,
consumer product safety, the importation of goods, product liability, currency
exchange, securities and trading with the enemy matters, and to the best of the
Seller's knowledge no event has occurred which would constitute reasonable
grounds for a claim that non-compliance has occurred or is occurring and any
non-compliance will not materially and adversely affect the Assets.
(p) INTELLECTUAL PROPERTY AND INTANGIBLE ASSETS. The Seller
owns or possesses valid
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and binding licenses or other rights to use, whether or not registered, all
Intellectual Property and Intangible Assets. Schedule 4.1(p) sets forth a
complete and accurate list of all such Intellectual Property and Intangible
Assets (identifying those owned and those licensed), including all United
States, state and foreign registrations or applications for registration thereof
and all agreements (including, without limitation, agreements pursuant to which
the Seller has granted licenses to third parties to use any Intellectual
Property or Intangible Asset) relating thereto. All actions necessary to
maintain the registered Intellectual Property and Intangible Assets have been
taken by the Seller. The Seller is not required to pay any royalty, license fee
or similar compensation with respect to the Intellectual Property or Intangible
Assets in connection with the current or prior conduct of its business. The use
by the Seller of any of the Intellectual Property or Intangible Assets does not
violate the proprietary rights of any other Person and no claims have been
asserted by any Person with respect to the use of the Intellectual Property or
Intangible Assets by the Seller. To the best of the Seller's knowledge, no
Person is infringing upon the Intellectual Property or Intangible Assets. The
Seller has taken reasonable security measures to protect the secrecy,
confidentiality and value of the Intellectual Property. No Person, other than
the Seller, owns or has any proprietary, financial or other interest, direct or
indirect, in whole or in part, in any Intellectual Property or Intangible Asset.
Except as set forth in Schedule 4.1(p), the Seller is not a party to any
confidentiality, secrecy or similar agreements with third parties.
(q) PENDING LITIGATION. Except as set forth in Schedule 4(q),
the Seller is not (i) subject to any outstanding injunction, judgment, order,
decree, ruling, or charge, or (ii) a party or, to the Knowledge of the Seller
and the directors and officers (and employees with responsibility for litigation
matters) of the Seller, is threatened to be made a party to any action, suit,
proceeding, hearing, or Investigation of, in, or before any court or
quasi-judicial or administrative agency of any federal, state, local, or foreign
jurisdiction or before any arbitrator. None of the actions, suits, proceedings,
hearings, and Investigations set forth in Schedule 4.1(q) could result in any
material adverse change in the business, financial condition, operations,
results of operations, or future prospects of any of the Seller or which
otherwise could result in any Liability to the Seller. The Seller and its
directors and officers (and employees with responsibility for litigation
matters) of the Seller has any reason to believe that any such action, suit,
proceeding, hearing, or Investigation may be brought
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or threatened against any of the Seller.
(r) CUSTOMER LIST. Schedule 4.1(r) sets forth a complete and
accurate copy of the Seller's customer list as of the date first written above.
To the best of the Seller's knowledge, the Seller has not received any notice,
whether written or oral, indicating that any of these customers intend to cease
doing business with the Seller, or to materially alter the amount of business it
has previously done or is presently doing with the Seller.
(s) ASSETS; OWNERSHIP OF NECESSARY ASSETS AND RIGHTS. The
assets, properties and rights included in the Assets comprise all of the assets,
properties, and rights of every type and description, real, personal and mixed,
tangible and intangible, used by the Seller in, and necessary to, the conduct of
the Business as presently conducted. The Assets are in good condition and repair
and have received proper maintenance in the ordinary course of business. The
Assets on the Closing Date shall be free and clear of all Liens.
(t) SUBSIDIARIES AND OTHER INVESTMENTS. The Seller does not
own, directly or indirectly, any interest or investment (whether equity or debt)
in any corporation, partnership, limited liability company, joint venture
business, trust, or other entity.
(u) DISCLOSURE. No statement, representation or warranty by
the Seller in this Agreement, including the Schedules hereto, contains any
untrue statement of material fact, or omits to state a material fact, necessary
to make such statements, representations and warranties not misleading. There is
no fact known to the Seller which has specific application to the Business or,
so far as the Seller can reasonably foresee, materially threatens in the future,
the assets, business, prospects, financial condition or results of operations of
the Business which has not been set forth in this Agreement or the Schedules
hereto.
(v) FINANCIAL STATEMENTS. Schedule 4.1(v) sets forth the
unaudited financial statements as of _________, which include the balance sheet
of the Seller as at , statement of operations and retained earnings of the
Seller for the fiscal year ending
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____________________, and statements of cash flows and Shareholders' Equity of
the Seller for the fiscal year ending ____________________, together with the
related notes thereto (collectively, the "Financial Statements") in each case
certified by the Chief Financial Officer of the Seller. On the Closing Date, the
Seller shall deliver to the Buyer the unaudited balance sheet of the Seller as
at ________________, 1999, and an unaudited statement of operations and retained
earnings and an unaudited statements of cash flows and Shareholders' Equity of
the Seller for the twelve month period then ended (collectively, the "Closing
Date Financial Statements"). The Financial Statements and the Closing Date
Financial Statements are or will be complete and correct in all material
respects and fairly present the financial condition of the Seller as of the
dates thereof and the results of its operations for the fiscal years and periods
ended on such dates. The Financial Statements and Closing Date Financial
Statements have been prepared in accordance with generally accepted accounting
principles consistently applied.
(w) EVENTS SUBSEQUENT TO MOST RECENT FISCAL YEAR END. Except
as otherwise provided in Section ______ since June 30, 1999, there has not been
any material adverse change in the business, financial condition, operations,
results of operations or future prospects of the Seller. Without limiting the
generality of the foregoing, since that date:
(i) the Seller has not sold, leased, transferred, or
assigned any of its Assets, tangible or intangible, other than for a fair
consideration in the ordinary course of business;
(ii) except as otherwise disclosed in this Agreement,
the Seller has not entered into any agreement, contract, lease, or license (or
series of related agreements, contracts, leases, and licenses) involving (A)
more than $1,000, (B) a term of more than one year, or (C) outside the ordinary
course of business;
(iii) no party (including the Seller) has
accelerated, terminated, modified, or cancelled any agreement, contract, lease
or license (or series of related agreements, contracts, leases, and licenses) to
which the Seller is a party or by which it is bound involving (A) more than
$1,000; or (B) a term of more than one year;
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(iv) the Seller has not imposed any Security Interest
upon any of its Assets, tangible or intangible;
(v) the Seller has not made any capital expenditure
(or series of related capital expenditures) either involving more than $1,000 or
outside the ordinary course of business;
(vi) the Seller has have not made any capital
investment in, any loan to, or any acquisition of the securities or assets of,
any other Person (or series of related capital investments, loans, and
acquisitions) either involving (A) more than $1,000, (B) or outside the ordinary
course of business;
(vii) the Seller has not issued any note, debenture,
bond, or other debt security or created, incurred, assumed, or guaranteed any
indebtedness for borrowed money or capitalized lease obligation either involving
more than $1,000 singly or $5,000 in the aggregate;
(viii) the Seller has not delayed or postponed the
payment of accounts payable and other Liabilities outside the ordinary course of
business;
(ix) the Seller has not cancelled, compromised,
waived, or released any right or claim (or series of related rights and claims)
either involving (A) more than $1,000, or (B) outside the ordinary course of
business;
(x) the Seller has not granted any license or
sublicense of any rights under or with respect to any Intellectual Property;
(xi) the Seller has not declared, set aside, or paid
any dividend or made any distribution in cash or in kind or redeemed, purchased,
or otherwise acquired any shares of common stock;
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(xii) the Seller has not experienced any material
damage, destruction, or loss (whether or not covered by insurance) to its
property;
(xiii) the Seller has not made any loan to, or
entered into any other transaction with, any of its employees involving more
than $1,000 in the aggregate outside the Ordinary Course of Business
(xiv) the Seller has not entered into any employment
contract, written or oral, or modified the terms of any existing such contract
or agreement involving more than $1,000 in the aggregate or entered into any
collective bargaining agreement;
(xv) the Seller has not granted any increase in the
base compensation of any of its directors, officers or any of its family
members;
(xvi) the Seller has not granted adopted, amended,
modified, or terminated any bonus, profit-sharing, incentive, severance, or
other plan, contract, or commitment for the benefit of any of its directors,
officers, or family members (or taken any such action with respect to any other
Employee Benefit Plan);
(xvii) the Seller has not made any other change in
employment terms for any of its directors and officers;
(xviii) the Seller has not made or pledged to make
any charitable or other capital contribution in excess of $1,000 and outside the
ordinary course of business;
(xix) there has not been any other occurrence, event,
incident, action, failure to act, or transaction outside the ordinary course of
business involving the Seller;
(xx) the Seller has not terminated or amended any
insurance policies nor has any insurance company done so with regard to a policy
paid for by the Seller; and
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(xxi) the Seller has not committed to do any of the
foregoing.
(x) STOCKHOLDER APPROVAL. The stockholders of the
Seller have approved the sale of the Assets contemplated by this Agreement. No
dissenter's or appraisal rights exist. The approval of the stockholders by its
terms may not be revoked.
4.2 THE BUYER. The Buyer hereby represent and warrant to the Seller,
all of which representations and warranties are true, complete, and correct in
all respects as of the date hereof and as of the Closing Date, as follows:
(a) ORGANIZATION AND QUALIFICATION. The Buyer is a corporation
duly incorporated, validly existing and in good standing under the Laws of the
jurisdiction of its respective incorporation, and is duly qualified to do
business in each other jurisdiction where the property owned, leased or used by
it or the conduct of its business makes such qualification necessary.
(b) AUTHORIZATION; NO RESTRICTIONS, CONSENTS OR APPROVALS. The
Buyer has full power and authority to enter into and perform this Agreement, and
has taken all necessary corporate action to authorize the execution and delivery
of this Agreement and the performance by the Buyer of its obligations hereunder.
This Agreement has been duly executed by the Buyer and constitutes the legal,
valid, binding, and enforceable obligation of the Buyer, enforceable against the
Buyer in accordance with its terms. The execution and delivery of this Agreement
and the consummation by the Buyer of the transactions contemplated herein or
hereby, do not and will not on the Closing Date (i) conflict with or violate any
of the terms of the Buyer's Articles of Incorporation or Bylaws or any
applicable Law relating to the Buyer, (ii) conflict with, or result in a breach
of any of the terms of, or result in the acceleration of any indebtedness or
obligations under, any agreement, obligation, or instrument by which the Buyer
is bound or to which any property of the Buyer is subject, or constitute a
default thereunder, or (iii) result in the violation by the Buyer of any laws to
which the Buyer or any assets of the Buyer may be subject which would materially
adversely affect the transaction contemplated herein. Except as set forth in
Schedule 4.2(b), no authorization, consent, or approval of
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any governmental authority or any other person is necessary or required in
connection with the execution and delivery by the Buyer of this Agreement or the
performance by the Buyer of the Buyer's obligations hereunder.
Section 5. COVENANTS PRIOR TO CLOSING.
5.1 THE SELLER'S COVENANTS. The Seller covenants that, except as
otherwise consented to in writing by the Buyer, from and after the date hereof
until the Closing or the earlier termination of this Agreement:
(a) Except as set forth in Schedule 5.1(a), the Business will
be conducted only in the ordinary course and in the same manner as heretofore
conducted except as required by this Agreement; and the Seller will use
reasonable efforts consistent with past practice to preserve the organization of
the Business, the services of the present officers, employees, agents, and
representatives thereof and continuing business relationships with suppliers,
customers, clients and others having business relations with the Seller.
(b) Except with the prior written consent of the Buyer, which
consent will not be unreasonably withheld or delayed:
(i) No contract, lease, license, obligation,
indebtedness, commitment, purchase or sale will be entered into, assumed or made
by the Seller except in the ordinary course of business of the Business;
(ii) The Seller shall not enter into or assume any
mortgage, pledge, conditional sale or other title retention agreement, or permit
any Lien to be placed upon any of the Assets, whether now owned or hereafter
acquired (other than Liens arising by operation of law in the Ordinary Course of
Business); and
(iii) The Seller shall not make any commitment for
any capital expenditure
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whatsoever.
(c) All real property, machinery and equipment and other
operating properties used in the Business will be kept and maintained in good
repair and working order (ordinary wear and tear excepted) on a basis consistent
with past practices of the Business, and the Seller will duly observe and
conform to all material terms and conditions upon or under which any of such
properties are held.
(d) The Seller shall use its best efforts to maintain in full
force and effect in all material respects all insurance coverages for the
Business currently in effect and shall undertake to obtain equivalent
replacement coverage with respect to any policies hereafter canceled or
terminated.
5.2 ACCESS. From and after the date hereof and until the Closing or the
termination of this Agreement, the Seller shall, upon reasonable prior notice,
give to the Buyer and to the Buyer's counsel, accountants, consultants and other
representatives and designees, reasonable access during normal business hours to
the offices, properties, facilities, agreements, records, and executive or
management personnel of the Seller and will furnish to the Buyer copies of all
documents and all such information concerning the properties and affairs of the
Seller as the Buyer may reasonably request.
5.3 COOPERATION. The Buyer and the Seller agree (a) to cooperate with
each other in determining whether any filings are required to be made or
consents required to be obtained in any jurisdiction in connection with the
consummation of the transactions contemplated hereby and in making or causing to
be made any such filings promptly and in seeking to obtain in a timely manner
any such consents; and (b) to use all reasonable efforts to obtain promptly the
satisfaction of the conditions to the Closing of the transactions contemplated
herein. The Buyer and the Seller shall furnish to each other and to each other's
counsel all such information as may be reasonably required in order to
effectuate the foregoing.
Section 6. CLOSING.
6.1 CONDITIONS TO THE BUYER'S OBLIGATIONS. The obligations of the Buyer
under this
23
Agreement, including, without limitation, the obligation to consummate and
effect the purchase of the Assets, shall be subject to satisfaction of the
following conditions, unless waived by the Buyer:
(a) The Seller shall have performed in all material respects
all agreements, and satisfied in all material respects all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date.
(b) All representations and warranties of the Seller herein
shall have been true and correct in all material respects when made, shall have
continued to have been true and correct in all material respects at all times
subsequent thereto, and shall be true and correct in all material respects on
and as of the Closing Date as though made on, as of and with reference to such
date.
(c) All consents, approvals, certificates and authorizations
required to be obtained by the Seller, and/or the Buyer in connection with the
sale of the Assets, including without limitation, all approvals by and
clearances from all governmental authorities, lenders, and other third parties,
shall have been obtained and no such consent, approval or authorization shall be
subject to any condition which is unduly burdensome; and as of the Closing Date,
no legislation, rule or regulation shall have been enacted or deemed applicable
to the transactions contemplated by this Agreement which would materially
interfere with or restrict the use and operation of the Business after the
Closing or materially detract from the value of the Assets.
(d) The Seller shall have obtained written consents to the
assignment to the Buyer of each Lease and Contract listed on Schedule ____ with
respect to which a consent is required in connection with the consummation of
the transactions contemplated by this Agreement.
(e) There shall not have occurred, since _________________,
except as set forth in Schedule 6.1(e) any material adverse change with respect
to the Business, financial condition, results of operations, prospects, assets
or backlog of the Seller.
(f) The Seller shall have afforded the Buyer and its
representatives reasonable
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access to the facilities and Real Property, utilized by the Seller in the
conduct of the Business for the purpose of conducting facility surveys, and the
results of such surveys shall have been satisfactory in all respects to the
Buyer in its sole and absolute discretion.
(g) The Seller shall have executed and delivered to the Buyer
all documents necessary to convey title to the Assets to the Buyer as
contemplated by this Agreement.
(h) The Buyer shall have entered into a management agreement
with the Seller to provide management expertise to Buyer on a cost plus
percentage basis sufficient to generate a pre-tax profit of ___________________.
(i) The Buyer shall have entered into an employment agreement
with Mr. Paulo Mylla at an annual salary of $___________ for a period of no less
than three years.
(j) The Buyer shall have obtained written consents to
assignments of all Assumed Leases of real property, pursuant to which the Seller
is a lessee, executed by the lessors.
(k) The agreements between the Seller and certain related
parties set forth on Schedule 6.1(k) shall have been terminated, and the Seller
and the Buyer shall have been released from all liability or obligation
whatsoever therefor.
(l) The Seller shall have provided to the Buyer a complete and
accurate schedule including an aging schedule for all of the Seller's Accounts
Receivable as of not more than two business days prior to the Closing Date.
(m) The Buyer and the Seller shall have entered into
Assignment and Assumption Agreements with respect to all Assumed Leases of Real
Property.
6.2 CONDITIONS TO THE SELLER'S OBLIGATIONS. The obligations of the
Seller under this Agreement, including, without limitation, the obligation to
consummate and effect the sale of the
25
Assets shall be subject to satisfaction of the following conditions, unless
waived by the Seller:
(a) The Buyer shall have performed in all material respects
all agreements, and satisfied in all material respects all conditions on its
part to be performed or satisfied hereunder at or prior to the Closing Date.
(b) All of the representations and warranties of the Buyer
herein shall have been true and correct in all material respects when made,
shall have continued to have been true and correct in all material respects at
all times subsequent thereto, and shall be true and correct in all material
respects on and as of the Closing Date as though made on, as of, and with
reference to such date.
(c) All consents, approvals and authorizations required to be
obtained by the Buyer and/or Seller in connection with the sale of the Assets,
including all approvals by and clearances from all governmental authorities,
have been obtained.
(d) The Buyer shall have entered into the management and
employment agreements referred to in Section 6.1(h) and (i), respectively.
(e) The Buyer and the Seller shall have entered into
Assignment and Assumption Agreements with respect to all Assumed Leases of Real
Property.
6.3 CONDITIONS TO THE SELLER'S AND THE BUYER'S OBLIGATIONS. The
obligations of the Seller and the Buyer to consummate and effect the sale of the
Assets pursuant to this Agreement shall be subject to the following additional
condition, unless waived by each party:
(a) No injunction or temporary restraining order shall have
been granted restraining or prohibiting the consummation of the transactions
contemplated by this Agreement, and no action, suit or other proceeding
instituted by any federal, state, or local governmental authority seeking such
an injunction or order shall be pending or threatened.
26
(b) The Buyer shall have entered into the management and
employment agreements referred to in Sections 6.1(h) and (i), respectively.
(c) The Buyer has entered into a Business Combination
Agreement (defined as a Merger, Consolidation or Share Exchange under the laws
of Florida or a Amalgamation under the laws of Bermuda) which results in the
Buyer itself becoming, or the Buyer becoming a 100% held subsidiary of, a public
company with at least ______ shareholders, which public company has received
gross proceeds from the sales of its securities in the amount of at least
$1,725,000 U.S. dollars.
(d) The public company has outstanding capital of 12,000,000
shares of common stock and Paulo Mylla and/or his assigns are beneficial owners
of no less than 5,280,000 of such shares; provided, however, the number of
shares outstanding and beneficially held may be adjusted pro rata.
6.4 THE BUYER'S CLOSING DOCUMENTS. At the Closing, the BUYER will
deliver to the Seller, in form and substance reasonably satisfactory to the
Seller and consistent with this Agreement:
(a) An instrument of assumption by the Buyer assuming the
Assumed Obligations, which instrument shall have terms and conditions conforming
to this Agreement.
(b) Copies of consents of the board of directors of the Buyer
authorizing the execution and delivery of, and performance of their obligations
under this Agreement, certified by the Secretary or an Assistant Secretary of
the Parent and the Buyer.
(c) A Good Standing Certificate for the Buyer issued by the
Secretary of State of the jurisdiction of its incorporation and dated not more
than 20 business days prior to the Closing Date.
(d) A certificate of an officer of the BUYER certifying and
warranting that the representations, warranties and agreements of the BUYER
contained in this Agreement are true and accurate in all material respects as of
the Closing Date and that the Buyer has satisfied and performed
27
all of its respective obligations hereunder.
6.5 THE SELLER'S CLOSING DOCUMENTS. At the Closing, the Seller shall
deliver to the Parent and the Buyer, in form and substance reasonably
satisfactory to the Parent and the Buyer, all consents required under the
Contracts, and appropriate documents to effect or evidence the sale, conveyance,
assignment and transfer to the Buyer of the Assets as contemplated hereby and
necessary to place the Buyer, its officers, agents and employees in full
possession and enjoyment of all Assets as contemplated hereby, including the
following:
(a) A ▇▇▇▇ of Sale and Assignment, containing such covenants
and warranties of title as are consistent with the Seller's representations and
warranties under this Agreement and providing for full substitution and
subrogation of the Buyer in and to all covenants and warranties by others
theretofore given or made in respect of such assets, and such other instruments
of assignment or transfer as shall be necessary or reasonably desirable to vest
in the Buyer all of the Seller's right, title and interest in and to all
Contracts, Intellectual Property, Intangible Assets, Personal Property, Assumed
Leases and other intangible property of the Seller to be sold or transferred to
the Buyer under this Agreement.
(b) Copies of resolutions adopted by the board of directors of
the Seller authorizing the execution and delivery of, and performance of the
Seller's obligations under, this Agreement, certified by the Secretary or an
Assistant Secretary of the Seller.
(c) A Good Standing Certificate for the Seller issued by the
Secretary of State of the jurisdiction of their respective incorporation and
dated not more than 20 business days prior to the Closing Date.
(d) A certificate of the President of the Seller, certifying
and warranting that the representations, warranties and agreements of the Seller
contained in this Agreement are true and accurate in all material respects as of
the Closing Date and that Seller has satisfied and performed all of its
obligations hereunder.
28
(e) Evidence of any authorization, consent, approval or filing
with any public body or governmental authority or any other Person necessary in
connection with this Agreement.
(f) Such other documents as the Buyer shall reasonably
request.
Section 7. ADDITIONAL COVENANTS. If Closing occurs hereunder, then from and
after the Closing Date, the parties hereto shall be bound by the following
covenants:
7.1 POST-CLOSING ACCESS. The Buyer shall, following the Closing, give
to the Seller and its respective authorized representatives such reasonable
access, at the Seller's cost and expense, during normal business hours and upon
prior notice, to books and records constituting part of the Assets (including
without limitation all such accounting books and tax records) as the Seller may
reasonably require in connection with the preparation and filing of tax returns,
collection by the Buyer of the Accounts Receivable, audits or any claim made by
any party with respect to a liability or obligation that is not an Assumed
Obligation.
7.2 COOPERATION IN THIRD-PARTY LITIGATION.
(a) After the Closing, the Seller shall provide such
cooperation as the Buyer or its counsel may reasonably request in connection
with (i) any proceedings related to the Business other than the Excluded Assets
or the Excluded Obligations; (ii) the Seller's conduct of the Business prior to
the Closing which are hereafter pending or threatened and to which the Buyer is
a party, (iii) any proceedings for which the Seller is entitled to
indemnification from the Buyer under Section __. Such cooperation shall include,
but not be limited to, making employees of the Seller available upon the
reasonable request and at the expense of the Buyer or its counsel to consult
with and assist the Buyer and its counsel in connection with any such
proceedings and to prepare for and testify in any such proceedings, including
depositions, trials and arbitration proceedings.
29
(b) The Buyer agrees that after the Closing, the Buyer shall
provide such cooperation as the Seller or its counsel may reasonably request in
connection with (i) pending or threatened proceedings set forth in Schedule ___;
(ii) any proceedings relating to the Business which are hereafter pending or
threatened and to which the Seller is a party; and (iii) any proceedings for
which the Buyer is entitled to indemnification from the Seller under Section 8.3
hereof. Such cooperation shall include, but not be limited to, making employees
of the Buyer available upon the reasonable request and at the expense of the
Seller or its counsel to consult with and assist the Seller and its counsel
regarding any such proceedings and to prepare for and testify in connection with
any such proceedings, including depositions, trials and arbitration proceedings.
(c) The provisions of this Section 7.2 are not intended to
conflict with, and shall not override the provisions of Sections ___ hereof.
7.3 DISCHARGE OF BUSINESS OBLIGATIONS. From and after the Closing Date,
the Seller shall pay and discharge when due all obligations and liabilities of
the Seller incurred prior to the Closing Date (except for the Assumed
Obligations), and in furtherance of the foregoing shall discharge on a timely
basis all such liabilities or obligations to employees, trade creditors,
suppliers and customers.
7.4 FURTHER ASSURANCES. The Seller from time to time after the Closing,
at the Buyer's request, will execute, acknowledge and deliver to the Buyer such
other instruments of conveyance and transfer and will take such other actions
and execute and deliver such other documents, certifications and further
assurances as the Buyer may reasonably require in order to vest more effectively
in the Buyer, or to put the Buyer more fully in possession of, any of the
Assets. Each of the parties hereto will cooperate with the other and execute and
deliver to the other parties hereto such other instruments and documents and
take such other actions as may be reasonably requested from time to time by any
other party hereto as necessary to carry out, evidence and confirm the intended
purposes of this Agreement.
Section 8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
30
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND COVENANTS. The
representations, warranties, covenants, and obligations of the Buyer and the
Seller set forth in this Agreement and in any certificate, agreement, or
instrument delivered in connection with the transactions contemplated hereby,
shall survive the Closing for a period equal to the greater of (i) the
applicable statute of limitations or (ii) a period of three years.
8.2 INDEMNIFICATION BY THE SELLER. In addition to and not in limitation
of the Seller's indemnification obligations set forth elsewhere in this
Agreement, the Seller shall, defend, indemnify, and hold harmless the Parent and
the Buyer and their affiliates and their respective officers, directors,
shareholders, agents and employees (individually, a "Buyer Indemnitee" and
collectively the "Buyer Indemnitees"), from and against any and all claims,
losses, deficiencies, liabilities, obligations, damages, penalties, punitive
damages, costs, and expenses (including, without limitation, reasonable legal,
accounting and consulting fees), whether or not resulting from third party
claims (collectively, "Losses"), suffered by a Buyer Indemnitee, which arise out
of or result from:
(a) any inaccuracy or misrepresentation in or breach of any of
the representations, warranties, covenants or agreements made by the Seller in
this Agreement or in any document, certificate or affidavit delivered by the
Seller pursuant to the provisions of this Agreement;
(b) any obligation, liability, debt or commitment of the
Seller which is not an Assumed Obligation (or is an Excluded Obligation),
whether or not paid by the Buyer; and
(c) any claims by any Person arising out of or due to the
failure to comply with the bulk transfers laws, fraudulent conveyance or other
laws for the protection of creditors of the State of Florida including, without
limitation, any claims by any Person against all or any part of the Assets.
(d) any other matter related to the conduct of the Business by
the Seller or any predecessor or the use or ownership of the Assets prior to the
Closing (including, but not limited to, all acts, omissions and conditions
existing or occurring prior to the Closing for which any of the Buyer
Indemnitees is alleged to be liable pursuant to any successor or similar theory
of liability).
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8.3 INDEMNIFICATION BY THE BUYER. The Buyer shall defend, indemnify and
hold harmless, the Seller and the Seller's respective officers, directors,
agents and employees (individually, a "Seller Indemnitee" and collectively the
"Seller Indemnitees") from and against any and all Losses, suffered by a Seller
Indemnitee, which arise out of or result from (a) any inaccuracy or
misrepresentation in or breach of any of the representations, warranties,
covenants or agreements made by the Buyer in this Agreement or in any document,
certificate or affidavit delivered by the Buyer pursuant to the provisions of
this Agreement; (b) any Taxes arising from the operation by the Buyer after the
Closing Date of the Business purchased by the Buyer; or (c) any of the Assumed
Obligations.
8.4 INDEMNIFICATION PAYMENTS. All indemnity payments, whether by the
Buyer or the Seller, to be made under this Agreement shall be made in
immediately available funds.
8.5 PROCEDURE FOR THIRD PARTY CLAIMS.
(a) Notice to the indemnifying party shall be given promptly
after receipt by any Seller Indemnitee or Buyer Indemnitee of actual knowledge
of the commencement of any action or the assertion of any claim that will likely
result in a claim by it for indemnity pursuant to this Agreement. Such notice
shall set forth in reasonable detail the nature of such action or claim to the
extent known, and include copies of any written correspondence or pleadings from
the party asserting such claim or initiating such action. The indemnifying party
shall be entitled, at its own expense, to assume or participate in the defense
of such action or claim. In the event that the indemnifying party assumes the
defense of such action or claim, it shall be conducted by counsel chosen by such
party and approved by the party seeking indemnification, which approval shall
not be unreasonably withheld.
(b) With respect to actions as to which the indemnifying party
does not exercise its right to assume the defense, the party seeking
indemnification shall assume and control the defense of and contest such action
with counsel chosen by it and approved by the indemnifying party, which approval
shall not be unreasonably withheld. The indemnifying party shall be entitled to
participate in the defense of such action, the cost of such participation to be
at its own expense. The indemnifying
32
party shall be obligated to pay the reasonable attorneys' fees and expenses of
the party seeking indemnification to the extent that such fees and expenses
related to claims as to which indemnification is payable under Sections __ or
__, as such expenses are incurred.
(c) Both the indemnifying party and the indemnified party
shall cooperate fully with one another in connection with the defense,
compromise, or settlement of any such claim or action, including, without
limitation, by making available to the other all pertinent information and
witnesses within its control.
8.6 REMEDIES CUMULATIVE. The remedies provided for herein shall be
cumulative and shall not preclude assertion by any party of any other rights or
the seeking of any other remedies against any other party. Nothing contained in
this Section 8.6 shall be construed in any way to limit, impair or modify any
provisions of this Agreement or to otherwise impose any additional liability or
obligation on the Buyer at any time for any liability or obligation of the
Seller other than the Buyer's obligation to indemnify the Seller hereunder.
8.7 SUCCESSORS. The merger, consolidation, liquidation, dissolution or
winding up of, or any similar transaction with respect to, the parties hereto
shall not affect in any manner the obligations of the parties pursuant to
Section 8.7 or any other term or provision of this Agreement, and the parties
covenant and agree to make adequate provision for their liabilities and
obligations hereunder in the event of any such transaction.
8.8 LIMITS ON INDEMNIFICATION. Notwithstanding the provisions of
Sections 8.2 and 8.3 above, neither the Buyer Indemnitees nor the Seller
Indemnitees shall be entitled to receive indemnification under this Agreement
for a claim relating to a breach of a representation or warranty contained
herein until the aggregate amount of indemnification claims they shall have
asserted hereunder shall exceed $10,000; provided that if the Buyer Indemnitees
or the Seller Indemnitees shall successfully assert claims for indemnification
hereunder in excess of $10,000 in the aggregate they shall be entitled to
receive indemnification for the full amount of the indemnity claims without
regard to the $10,000 "threshold".
33
Section 9. BROKERAGE.
9.1 FINDERS AND BROKERS FEES. Each of the parties represents that it
has dealt with no broker or finder in connection with any of the transactions
contemplated by this Agreement, and, insofar as it knows, no broker or other
person is entitled to any compensation including, without limitation, a
commission or finder's fee, in connection with any of these transactions. The
parties each agree to indemnify and hold harmless one another against any loss,
liability, damage, cost, claim, or expense incurred by reason of any
compensation, including, without limitation, brokerage, commission, or finder's
fee, alleged to be payable because of any act, omission, or statement or the
indemnifying party.
Section 10. GENERAL PROVISIONS.
10.1 SALES AND TRANSFER TAXES. The Seller shall pay any and all taxes,
federal, state, or local, in the nature of income, sales, use, transfer gains,
conveyance, recording, ad valorem, stamp, transfer and any similar tax, fee or
duty required to be paid in respect of the conveyance, assignment, or transfer
to the Buyer of the Assets and the filing and recording thereof (collectively,
the "Transfer Taxes").
10.2 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement is
intended, nor shall it be construed, to confer any rights or benefits upon any
Person (including, but not limited to, any employee or former employee of the
Seller) other than the parties hereto, and solely to the extent provided in
Section 8, the other the Seller Indemnitees and the Buyer Indemnitees, and no
other Person shall have any rights or remedies hereunder.
10.3 EXPENSES OF THE PARTIES; CERTAIN LITIGATION. All expenses involved
in the preparation, authorization, and consummation of this Agreement, incurred
up to and including the Closing, including, without limitation, all fees and
expenses of agents, representatives, counsel, and accountants in connection
therewith, shall be borne solely by the party who shall have incurred the same,
and the
34
other parties shall have no liability in respect thereof; provided, however,
that nothing herein shall be construed to release or impair any claim for
damages by any party.
10.4 AMENDMENT AND WAIVER. This Agreement may not be changed or
terminated orally. No waiver of compliance with any provision or condition
hereof, and no consent provided for herein shall be effective unless evidenced
by an instrument in writing duly executed by the party hereto sought to be
charged with such waiver or consent.
10.5 MISCELLANEOUS. The Section headings of this Agreement are for
convenience of reference only and do not form a part hereof and do not in any
way modify, interpret, or construe the intentions of the parties. This Agreement
may be executed in one or more counterparts and all such counterparts shall
constitute one and the same instrument. This Agreement shall be governed by and
construed in accordance with the Laws of the State of Florida; without giving
effect to the conflict of laws principles thereof.
10.6 BINDING EFFECT. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective administrators, legal
representatives, successors and permitted assigns.
10.7 PUBLICITY. No party hereto or its representatives will, without
the prior written consent of the other parties, disclose to any other person any
information that has been made available in connection with this Agreement
(other than information which has been published or made publicly available
other than by unauthorized disclosure of a party), make any public announcement
concerning the transactions contemplated hereby or disclose any of the terms,
conditions, or other facts with respect to this Agreement, except as required by
Law. If circumstances make it impossible to give such prior written notice, then
any disclosure made shall be no more extensive than is necessary to meet the
minimum requirement imposed on the party making such disclosure.
10.8 COMPLETE AGREEMENT. This Agreement and Schedules and other
documents referred to herein contain the entire agreement between the parties
hereto with respect to the transactions
35
contemplated herein and supersede all previous negotiations, commitments, and
writings.
10.9 NOTICES. Any notice, report, demand, waiver, consent or other
communication given by a party under this Agreement (each a "notice") shall be
in writing, may be given by a party or its legal counsel, and shall deemed to be
duly given (i) when personally delivered, or (ii) upon delivery by United States
Express Mail or similar overnight courier service which provides evidence of
delivery, or (iii) when five days have elapsed after its transmittal by
registered or certified mail, postage prepaid, return receipt requested,
addressed to the party to whom directed at that party's address as it appears
below or another address of which that party has given notice, or (iv) when
transmitted by telex (or equivalent service), the sender having received the
answer back of the addressee, or (v) when delivered by facsimile transmission if
a copy thereof is also delivered in person or by overnight courier. Notices of
address change shall be effective only upon receipt notwithstanding the
provisions of the foregoing sentence.
Notice to the Seller shall be sufficient if given to:
BGS (SouthWest) Inc.
---------------------------------
ATTN: Mr.
------------------------
Fax:
-----------------------------
with a copy to:
Fax:
Notice to the Buyer shall be sufficient if given to:
36
▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇.
ATTN: Mr. Paulo Mylla
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, P.A.
1645 Palm Beach ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ATTN: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10.10 SEVERABILITY. If any term or provision of this Agreement shall be
held to be invalid or unenforceable for any reason, such term or provision shall
be ineffective to the extent of such invalidity or unenforceability without
invalidating the remaining terms and provisions hereof, and this Agreement shall
be construed as if such invalid or unenforceable term or provisions had not been
contained herein.
10.11 EFFECT OF INVESTIGATION. Any inspection, preparation or
compilation of information or schedules, or audit of the inventories,
properties, financial condition or other matters relating to the Seller
conducted by or on behalf of the Buyer pursuant to this Agreement shall in no
way limit, affect or impair the ability of the Buyer to rely upon the
representations, warranties, covenants and agreements of the Seller set forth
herein.
10.12 TERMINATION.
(a) This Agreement may be terminated at any time prior to the
Closing by mutual written consent of the Seller and the Buyer.
37
(b) If this Agreement is terminated as provided herein: (i)
each party will redeliver all documents, work papers and other material of the
other party or parties relating to the transactions contemplated hereby, whether
so obtained before or after the execution hereof, to the party furnishing the
same; (ii) no information received by any party hereto with respect to the
business of the other party or their affiliated companies (other than
information which is a matter of public knowledge or which has heretofore been
or is hereafter published in any publication for public distribution or filed or
available as public information with any governmental authority) shall at any
time be used for the advantage of, or disclosed to third parties, by such party
for any reason whatsoever; and (iii) no party shall have any liability or
further obligation to any other party to this Agreement except as provided by
this Section ___, except to the extent such claim or obligation has accrued
prior to such termination of this Agreement.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed under seal as of the date first above written.
▇▇▇▇▇▇▇.▇▇▇, Inc.
-----------------------------
By:
------------------------------------
Mr. Paulo Mylla, President
-----------------------------
BGS (SouthWest) Inc.
-----------------------------
By:
------------------------------------
, President
----------------------------- ------------------
38
TABLE OF SCHEDULES
Schedule 2.1(a)......................................................................................Prepaid Assets
Schedule 2.1(b)...................................................................................Personal Property
Schedule 2.1(c)............................................................................................. Leases
Schedule 2.1(d)...........................................................................................Contracts
Schedule 2.1(f)...............................................................................Intellectual Property
Schedule 2.2........................................................................................Excluded Assets
Schedule 2.3(b)...............................................................................................Liens
Schedule 2.4....................................................................................Assumed Obligations
Schedule 2.5(d).........................Excluded Obligations - exception for certain employees, officers, directors
Schedule 2.5(i).......................................................................................Prepaid Items
Schedule 3.2...........................................................................Allocation of Purchase Price
Schedule 3.3........................................................................................Pro-rated Items
Schedule 4.1(b)...............................................Authorization: NO Restrictions, Consents or Approvals
Schedule 4.1(d)........................................................................................Subsidiaries
Schedule 4.1(f)............................................................................Material Adverse Changes
Schedule 4.1(g)........................................................................Tax Returns not timely filed
Schedule 4.1(h)...........................................................................Interest in Real Property
Schedule 4.1(i).............................................Leases (include whether consent to assign is necessary)
Schedule 4.1(j).........................................................................Contracts & Other Documents
Schedule 4.1(k)..................................................................................Labor Difficulties
Schedule 4.1(l)..................................................................................Licenses & Permits
Schedule 4.1(m)................................................................Accounts Receivable & Aging Schedule
39
Schedule 4.1(n).............................................................................Undisclosed Liabilities
Schedule 4.1(o).............................................................................Non-Compliance with Law
Schedule 4.1(p)...................................................................Intellectual Property, Intangible
Assets and Confidentiality, secrecy or similar agreements
Schedule 4.1(q)..................................................................................Pending Litigation
Schedule 4.1(r)...................................................................Customer List as of July __, 1999
Schedule 4.1(v)................................................................................Financial Statements
Schedule 4.2(b)..................................................................Authorization, Consent or Approval
Schedule 5.1(a).............................................Business Conduct not in the ordinary course of business
Schedule 6.1(e)..................................................................Material Adverse Changes of Seller
Schedule 6.1(k).........................................Termination of Agreements between Seller of Related Parties
40
SCHEDULE 2.1(A)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
PREPAID ASSETS
N/A
41
SCHEDULE 2.1(B)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
Personal Property
A. Furniture and fixtures
1. ADMINISTRATION $
---------------------------------------------
DESK AND CREDENZA 1,054.81
LATERAL FILE 506.57
Chair 246.70
Guest Chair 163.13
Shelf 306.23
Picture 59.35
Picture 69.95
2. CONFERENCE ROOM $
---------------------------------------------
TABLE 437.89
8 Chairs 1,762.99
Picture 54.05
Picture 59.35
Picture 65.65
3. PRESIDENT $
---------------------------------------------
DESK AND CREDENZA 1,993.54
Chair 495.13
2 Guest Chairs 746.41
Book Case 706.91
Picture 289.00
Picture 75.25
Blinds 404.17
4. MANAGER $
---------------------------------------------
DESK AND CREDENZA 1,224.94
Shelf 306.23
Chair 220.37
42
2 Guest Chairs 326.27
5. DESIGNERS $
---------------------------------------------
4 WORK SURFACES 1,396.88
4 Chairs 941.03
Picture 43.45
Picture 48.75
Picture 43.45
Picture 43.45
6. SALES $
---------------------------------------------
4 Chairs 661.69
4 Desks (modules) 1,674.37
4 Fabric Panels 1,735.39
4 Boxfiles 1,204.03
Working area 932.80
2 Storage Cabinets 211.98
3 Lateral Files 635.97
Picture 287.25
Picture 75.25
Picture 266.05
Picture 80.55
7. SERVER $
---------------------------------------------
DESK 211.99
8. KITCHEN $
---------------------------------------------
Refridgerator 7-14CF Model SYO SR952W 317.99
B. OFFICE EQUIPMENT $
---------------------------------------------
XEROX COPIER 5016 1,500.00
FAX PANASONIC KXF1150 300.00
TELEVISION SET QUASAR SP3219 499.98
VIDEO CASSETTE QUASAR VHQ730 129.99
43
C. TELEPHONE SYSTEM $
---------------------------------------------
SAMSUNG DCS COMPACT COMMUNICATIUON SYSTEM 5,941.30
Consisting of:
- 1 Samsung DCS Compact Unit (Equip 8X16)
- 1 Samsung Basic Software
- 1 Samsung Ram 1 Card
- 2 Samsung 2X4 Expansion Card
- 2 Samsung 24-Button Display Phones
- 10 Samsung 12-Button Display Phones
- ▇ ▇▇▇▇▇▇▇ ▇▇ & ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
- ▇ Battery Back-up Unit
- 18 Inside Cable Runs
- 18 CAT-5 Computer Cable Runs W/24 Port Patch Panel
- 12 CAT-5
- Upgrade 24 Port to 48 Port
- Plywood back board
D. Alarm System $
Alarm System consisting of: 975.00
- 1 Control Panel Ademco 4110XM
- 1 Digital Keypad 6128
- 1 Inside Speaker Siren 747
- 2 Passage doors contacted 1125T
- 2 Glass Break Sensors 5820
- 1 Passive Infrared detector 998
E. COMPUTER EQUIPMENT $
---------------------------------------------
COMPUTER EQUIPMENT CONSISTING OF: 34,705.72
- 2 Dell Dimesion XPS 300MHz Pentium II MiniTower Base
with MMX Technology and 512K Cache
- 2 Microsoft PS2 Intellimouse, shipped with system
- 2 WIN95 Spacesaver Quiet Key, 104 Key Keyboard, Factory Installed
- 2 128MB, SDRAM, DIMM, ECC, Factory installed
- 2 Altec ACS90 Speakers shipped with system
- 2 Creative Labs AWE64 ISA Sound Card, Factory installed
- 2 12/24x ▇▇▇▇ ▇▇ ROM, Factory installed
- 2 Dell 1200HS, Model #D1226H, with 17.9" Viewable Image Size, Color monitor
- 2 STB, Nitro, 4MB, Virge GX, SPS PCI, Video Board, Factory Installed
44
- 2 3.5, 1.44MB Floppy Drive, Factory installed
- 2 4.3GB ▇▇▇▇ Ultra ATA Hard Drive, Factory installed
- ▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ for Windows 95 factory installed
- 2 Windows '95 CD ROM Factory installed
- 2 3 Com, 3C905-TX, Ethernet, Network Card, Windows 95 Factory installed
- 2 MS OFFICE 97 Small Business Edition, CD, Factory Installed US English
- 2 Ms Bookshelf 96 on CD, W95, NT4.0, US English, Factory installed.
- 1 Dell Dimension XPS 300MHz Pentium II Mini Tower Base with MMX Technology and
512K cache
- 1 MICROSOFT PS2 Intellimouse, shipped with system
- 1 WIN95 Spacesaver Quiet Key Keyboard, factory installed
- 1 128MB, SDRAM, DIMM, ECC, factory installed
- 1 Altec ACS90 speakers shipped with system
- 1 Creative labs AWE64 ISA Sound Card, factory installed
- 1 12/24x ▇▇▇▇ ▇▇ ROM Factory installed
- 1 Ultrascan 1000TX, Color Monitor, Model #D1025HTX,15.9"Vis, Factory installed
Dimension
- 1 STB, Nitro, 4MB, Virge GX, SPS PCI, Video Board, Factory installed
- 1 3.5, 1.44 Floppy Drive, factory installed
- 1 4.3 ▇▇▇▇ ultra ATA hard Drive, factory installed
- ▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ for Windows 95 factory installed
- 1 3 Com, 3C905-TX, Ethernet, Network Card, Windows 95 factory installed
- 1 MS OFFICE 97 Professional with Bookshelf Basics on CD factory installed, US,
English
- 1 Dell PowerEdge 220 Base, 266 MHz Processor with 512K Cache
- 1 Logitec System Mouse, with disks not factory installed
- 1 Performance 104 key keyboard for Windows 95 factory installed
- 1 Dell PowerEdge 4200, Processor Terminator Card, Factory installed
- 1 8x SCSI CD-ROM Drive, factory installed
- 1 Ultrascan 800 HS (13.7"VIS) Trinitron Model # D825HT with 13.7" Viewable
Image Size for Dell Optiplex, factory installed
- 1 9GB SCSI Hard Drive, factory installed
- 1 Hard Drive Configuration for Dell PowerEdge 2100 factory installed
- 1 1.4 MB Floppy Drive for Dell PowerEdge 2200 factory installed
- 1 12/24 GB Tape Backup, for Dell PowerEdge 2200 factory installed
- 1 ReadyWare Installation Fee per system
- 1 Intel EtherExpress PRO 100/B PCI Ethernet Adapter factory installed
- 1 Microsoft NTS 4.0 on CD, 10 Client Access Licenses OEM Packaging, US Version
non factory installed - 1 128 MB RAM (64MB Free) Upgrade, 1 DIMM, for Dell
PowerEdge 2200 factory installed.
- 1 SMART-UPS 1000VA Net Bundle w/
- 1 Superstack II Hub 100TX 12 POR
- 3 Dell Dimesion 166 MHz Minitower Base with MMX Technology, 512K Cache and
2 MB Video
- 3 Microsoft PS2 Intellimouse, factory installed
45
- 3 WIN 95 Spacesaver Quiet Key Keyboard, factory installed
- 3 64 MB RAM, 2 DIMMS, SDRAM, factory installed
- 3 Vibra 16C Sound Card for Windows 95, factory installed
- 3 Altec ACS90 speakers shipped with system
- 3 12/24 xEIDE CD ROM Factory installed
- 3 Ultrascan 800 HS Trinitron with 13.7" Viewable Image Size, Model # D825HT,
for Dell Dimesion Factory
installed
- 3 3.2 GB ▇▇▇▇ Hard Drive, Factory installed
- 3 3.5", 1.44 MB Boot Floppy Drive, Factory installed
- 3 Iomega, removable Storage Zip ▇▇▇▇, for Windows 95 factory installed
- 3 Windows '95 CD ROM Factory installed
- 3 3C905-TX ENET 10/100 Network Card factory installed
- 3 MS Office 97 Small Business edition, CD, factory installed US English
- 3 Ms Bookshelf 96 on CD, W95, NT4.0 US English
- 2 IBM PAR PNTR CENT DB25 MALE/36
- 1 HP Deskjet 890CXI EXTL
- 1 HP Scanjet 5P 24BIT CLR &8BIT
- 1 HP Jetdirect EX Hi-performance
- 1 Databurst ISDN 128K NTI V
- 1 CD-R 2006/Plus 2X INT Recorder
- 1 Digital Mavica still Camera
- 1 Adaptec Fast SCSI-2 32 Bit PCI Adapter
- 4 Back-ups 400 from APC
- 4 APC Back-ups 280 SBY 280VA/180W
- 4 APC Personal Surge Protection (7 outlet)
- APC Personal Surge Protection (7 outlet + Telephone)
- 1 NET3T Network SurgeArrest (3 Outlet + Modem/fax) from ▇▇▇
- ▇▇ ▇" ▇▇▇▇ ▇▇▇▇▇ Cable
- 3 14" CAT5 Patch Cable
- 3 25" CAT5 Patch Cable
- 4 3 Com Fast Ether Link XL/100Mbps PCI RJ 45 Network adapter
- 1 NetPort Express PRO/100 FastEthernet 2 Port Ext Multi OS Print Server by
Intel
- 1 Etherlink III Ethernet PCCARD RJ45 NIC Type II PCMCIA
- 1 19" 4Unit Rack Mount 9.3"x12"
- 1 Smart -ups 1000 from APC (6 outlet)
- 1 Microsoft Proxy server v2.0 for Windows NT CD
46
Description Serial # Current Book Depreciated Replacement
Value Cost
Adobe ABW80OC71
Illustrator 06961-806
Adobe MBW500B71
Premiere 5.0 07938-480
Adobe PWW401R7
Photoshop 4 121584-597
Adobe PWW401R7
Photoshop 5 121584-597
1 HP Scanning C6297-
Software 15500
HP Scanjet C5112-
Scanner 15501
HP Scanjet C5112-
Scanner 15501
HP Surestore C4380-
CD Writer Plus 12000
Easy Cd
Creator
Smart & 495148-00
Friendly
Pc Anywhere ▇▇-▇▇-▇▇▇▇▇
Version 8.0
Meta Info News 761lGl-74
Channel
Net Objects CM-W-
Fusion 10006-01
Corel OVW32<288
Web Designer >25OWDSN
E11078
HP LaserJet
6P&6MP
HP LaserJet
6P&6MP
Adobe Type On ▇▇▇▇▇▇▇▇▇/9
Call 6
Macromedia FLD200-
Flash 2 09365-
37071-93686
Macromedia FLD200-
Flash 2 02060-
47071-83617
Macromedia FLW300055 Listed item 22
Flash 3 69-57032-
2503
Kurzweil Voice KURZ2520-
Pro 11011928
Smart Business ▇▇-▇▇▇▇▇-▇▇
Card Reader
WebTrends 87585119
CorelDraw7 DR7-
8264C58514
Seagate #ST031001
Backup-Exec 220-201
#SBE-
CWWD-
001ST
Microsoft KRP8T-
Windows 98 B49XX-
83JDB-
89KRQ-
47
9FYW8
Microsoft HP-PC
Windows 98 DWPRQ-
XKGTY-
RFKQF-
BJCHM-
K4BWD
Microsoft 8078-
FrontPage97 3604645
Microsoft 3123-
FrontPage98 0623897
Microsoft 3123-
FrontPage98 0128494
Microsoft Office 8145-
97 Professional 2232667
edition with
Bookshelf
Basics
10 licenses
Microsoft 3256-
Publisher 98 2678642
Microsoft LIBRARY
Visual X03-86016
Studio6.0 LIBRARY
X03-73112
J++ 325-
1604253
VISUAL
STUDIO
814-8157151
Microsoft X03-46849
[ ]
Internet
Explorer
[ ]
Microsoft 814-7185167
[ ]
BackOffice
[ ]
Server
[ ]
1 license
[ ]
10 client
[ ]
license
[ ]
Microsoft 8145-
[ ]
Outlook 0703056
Microsoft 814-8497034
BackOffice
Small Business
Server
1 server license
2 client
licences
Microsoft 20097-OEM-
Windows NT 0024294-
Server 87919
Microsoft 815-3910726
48
Windows NT
Workstation
Microsoft Site 814-8376972
Server
Microsoft Proxy 810-1670752
Server
Microsoft 23097-OEM-
Bookshelf 96 0024276
Microsoft 23097-
Bookshelf 96 OEM002427
6-92526
Microsoft 23097-OEM-
Bookshelf 96 0024276-
58864
Microsoft Office 25297-OEM-
Small Business 00245555-
Version 76452
Microsoft Office 25297-OEM-
Small Business 0024564-
Version 02490
Microsoft Office 25297-OEM-
Small Business 0024555-
Version 77481
Intel 687439-001
NetportExpress
Print Server
Microsoft 25297-OEM-
Windows 95 0024555-
39362
Microsoft 12697-OEM-
Windows 95 0022343-
77777
Microsoft 26197-OEM-
Windows 95 0024796
Microsoft 05197-OEM-
Windows 95 0020903-
86476
Microsoft 25297-OEM-
Windows 95 0024555-
32071
Microsoft 26197-OEM-
Windows 95 0024796-
76665
Microsoft 26197-OEM-
Windows 95 0024796-
76687
Microsoft 19996-OEM-
Windows 95 0013604-
45959
Microsoft 05197-OEM-
Plus 1.O 0020937-
Money 5.0 57237
Encarta 97
3D Movie
maker
Bookshelf
Works
LaserJet 5021-0370
Internet
Publishing Kit
LaserJet 5021-0370
Internet
49
Publishing Kit
WillowwTalk
FileMaker 1-1014-
Pro4.0 0877-9606-
4362
Real Server 5.0 5e6lOzc862
Real Server 5.0 507930a5e3
3154030064
0702f000790
0021061054
1af7767d559
007702
Real Server 5.0 6c610zf1d2f
Upgrade 0793db59f35
7eO20011O7
0260007b00
0020043014
12cl65f8590
0740a
Real Server G2 P/N
Upgrade 23001008
Real Publisher 51002
Real Publisher 51002
Miro PPN CD-
VideoDC30 0007-3.0
Plus
TitleDeko PPN CD-
0010-1.OA
Peach Tree ▇▇▇▇▇▇▇▇
Complete
Accounting
QuickCam 1073-800-
002
PowerChute 991-2000
Plus
US Robotics 1.031.002-00
Software PVC-
Library Sony 130/150
Vaio
QuickCad 110-5734014
50
SCHEDULE 2.1(C)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
LEASES
Filed Pursuant to Regulation 232.202 of the Securities and Exchange Commission
51
SCHEDULE 2.1(D)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
CONTRACTS
N/A
52
SCHEDULE 2.1(F)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
INTELLECTUAL PROPERTY
N/A
53
SCHEDULE 2.2
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
EXCLUDED ASSETS
N/A
54
SCHEDULE 2.3(B)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
LIENS
N/A
55
SCHEDULE 2.4
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
ASSUMED OBLIGATIONS
1. Current Liabilities at June 30, 1999
Federal Payroll Taxes Payable $10,089.24
FUTA Tax Payable 112.03
SUTA Tax Payable 477.23
Other Current Liabilities
Nanologic Invoices, Inc. Invoices #23, 25, and 46 (▇. ▇▇▇▇▇, 4,460.00
Programmer)
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Associates (Accountant tax return) 2,500.00
American Express Corporate includes Domain Name Registrations 1,750.00
Gas Expenses, hardware (memory expansion/Dell) 4,320.34
▇▇▇▇▇▇▇ ▇▇▇▇, attorney: 2.25 hours (placement of shares, immigration 650.00
issue) +1 hour (Phone call - ▇. ▇▇▇▇▇▇)
Network Solutions: Domain Name Registrations - 630.00
Sprint (Toll free) 23.32
Sprint (Internet Access) 901.15
▇▇▇-▇▇.▇▇▇ 73.12
Gold Key Lease (Jeep lease) 489.92
Spring (Local Calls) 352.64
Federal Express 65.00
Accuweather 81.15
Crystal Springs 14.54
▇▇▇▇▇▇ ▇▇▇▇▇▇ (Crime-simplified insurance) 170.10
Florida Power & Light 189.06
Tell Office Pro-Lease Office 2,173.34
Network Solutions 630
Bankers Insurance 397
Long-Term Liabilities
Credit Line - Pelican N. Bank 9,805.00
Notes Payable
Ixora Loan 8,000.00
WQVF Radio 5,939.96
2. Liabilities incurred in the ordinary course of business subsequent to June
30, 1999.
----------------------
----------------------
----------------------
56
SCHEDULE 2.5(D)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
EXCLUDED OBLIGATIONS - EXCEPTION FOR CERTAIN EMLOYEES, OFFICERS, DIRECTORS
N/A
57
SCHEDULE 2.5(I)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
PREPAID ITEMS
N/A
58
SCHEDULE 3.2
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
ALLOCATION OF PURCHASE PRICE
N/A
59
SCHEDULE 3.3
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
PRO-RATED ITEMS
N/A
60
SCHEDULE 4.1(B)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
AUTHORIZATION: NO RESTRICTIONS, CONSENTS OR APPROVALS
N/A
61
SCHEDULE 4.1(D)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
SUBSIDIARIES
N/A
62
SCHEDULE 4.1(F)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
MATERIAL ADVERSE CHANGES
N/A
63
SCHEDULE 4.1(G)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
TAX RETURNS NOT TIMELY FILED
N/A
64
SCHEDULE 4.1(H)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
INTEREST IN REAL PROPERTY
N/A
65
SCHEDULE 4.1(I)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
LEASES (INCLUDE WHETHER CONSENT TO ASSIGN IS NECESSARY)
66
SCHEDULE 4.1(J)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
CONTRACTS & OTHER DOCUMENTS
N/A
67
SCHEDULE 4.1(K)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
LABOR DIFFICULTIES
N/A
68
SCHEDULE 4.1(L)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
LICENSES & PERMITS
FILED PURSUANT TO REGULATION 232.202 OF THE SECURITIES AND EXCHANGE COMMISSION
69
SCHEDULE 4.1(M)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
ACCOUNTS RECEIVABLE & AGING SCHEDULE
FILED PURSUANT TO REGULATION 232.202 OF THE SECURITIES AND EXCHANGE COMMISSION
70
SCHEDULE 4.1(N)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
UNDISCLOSED LIABILITIES
N/A
71
SCHEDULE 4.1(O)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
NON-COMPLIANCE WITH LAW
N/A
72
SCHEDULE 4.1(P)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
INTELLECTUAL PROPERTY, INTANGIBLE ASSETS AND CONFIDENTIALITY, SECRECY OR
SIMILAR AGREEMENTS
N/A
73
SCHEDULE 4.1(Q)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
PENDING LITIGATION
N/A
74
SCHEDULE 4.1(R)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
CUSTOMER LIST AS OF AUGUST 4, 1999
FILED PURSUANT TO REGULATION 232.202 OF THE SECURITIES AND EXCHANGE COMMISSION
75
SCHEDULE 4.1(V)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
FINANCIAL STATEMENTS
N/A
76
SCHEDULE 4.2(B)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
AUTHORIZATION, CONSENT OR APPROVAL
N/A
77
SCHEDULE 5.1(A)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
BUSINESS CONDUCT NOT IN THE ORDINARY COURSE OF BUSINESS
N/A
78
SCHEDULE 6.1(E)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
MATERIAL ADVERSE CHANGES OF SELLER
N/A
79
SCHEDULE 6.1(K)
TO THE ASSET PURCHASE AGREEMENT BETWEEN
▇▇▇▇▇▇▇.▇▇▇, INC. AND BGS (SOUTHWEST FLORIDA) INC.
TERMINATION OF AGREEMENTS BETWEEN SELLER OF RELATED PARTIES
N/A
80