EX-2.3
MODIFICATION OF BUSINESS ASSET SALE, LICENSE AGREEMENT & ASSIGNMENT OF RIGHTS
MODIFICATION OF BUSINESS ASSET SALE,
LICENSE AGREEMENT & ASSIGNMENT OF RIGHTS
This Agreement supersedes the Business Asset Sale, License Agreement &
Assignment of Rights that was originally executed on July 1, 2003.
Effective September 15, 2003, the parties agree by and between:
Sonic Jet Performance, Inc., a Colorado company ("Seller")
- and -
Rockwell Power Systems, Inc., a Delaware company ("Buyer").
WITNESSETH
Whereas, Seller owns and operates several business units,
including a Fire & Rescue Boat Division doing business under the name
of "Sonic Jet Performance;" and
Whereas, Buyer desires to affiliate with Seller by acquiring
certain assets of such Division in exchange for a portion of its
capital stock; and
Whereas, Seller is willing to transfer such assets to Buyer
subject to the terms and conditions hereof, and in connection
therewith is willing to license the use of the "Sonic Jet Performance"
name to Buyer and to assign to Buyer certain contractual rights
relating to the manufacture of the Fire & Rescue boats; and
Whereas, Buyer is willing to license such name and accept such
assignment subject to the terms and conditions hereof;
Now, therefore, in consideration of foregoing preamble and the mutual
agreements contained herein, the Parties agree as follows:
Sale of Business Division Assets
For and in consideration of the purchase price and other obligations
set forth herein, the Seller hereby sells to Buyer and Buyer hereby
buys from Seller all Seller's right, title and legal interest in and
to the tangible and intangible assets of its Fire & Rescue Boat
Division which are set forth on the "Xxxx of Sale" attached hereto as
Exhibit A (the "Assets"). The parties acknowledge and agree that such
sale and transfer is expressly limited to the items set forth in
Exhibit A and shall not be construed so as to transfer any legal
interest whatsoever to Buyer in any of Seller's other assets or
business operations.
In addition, for consideration for payment equal to the book value of
the assets, the Seller agrees to transfer any and all remaining assets
associated with the recreational boat business on or before March 1, 2004.
In connection with such sale of Assets, Seller hereby consents to the
transfer of employment to Buyer of the Fire & Rescue Division
employees listed on the "Employee Transfer Consent" attached hereto as
Exhibit X.
Xxxxx of License
As additional consideration for payment of the purchase price and the
other obligations set forth herein, the Seller hereby grants to the
Buyer for a period of 20 years an irrevocable, transferable but non-
exclusive right (the "License") to use the name "Sonic Jet
Performance" as a trade name in connection with the operation of the
Fire & Rescue Boat Division business (the "SJP Name"). There shall be
no other use of the SJP Name. In connection with the License, the
Buyer may market and sell Fire & Rescue boats anywhere in the world
using the SJP Name and the goodwill associated therewith, provided
however that all marketing and sales activities in the Middle East
(including Egypt, Lebanon, Turkey, Syria, Jordan, Iraq, Iran, Saudi
Arabia, Bahrain, Oman, Qatar, the UAE and Yemen) shall be conducted
through the Xxxxxxxx Xx Xxxxxx Establishment in Jeddah, Saudi Arabia.
Assignment of Contract Rights
In connection with the sale of Assets and in furtherance thereof,
Seller hereby assigns to Buyer the Seller's contractual right to use
the Fire & Rescue Jet Design as provided for under that certain "2001
License Agreement" made by and between Seller and Xxxxxxxxx Marine
Design et al and dated December 27, 2001. Buyer acknowledges receiving
a copy of such Agreement, and confirms its understanding that the
assignment of rights hereunder relates only to the Fire & Rescue boat
Design and not to any other Design covered by such agreement.
Furthermore Buyer hereby covenants and warrants that it will comply
with the Seller's obligations set forth in such agreement, including
the requirement to pay royalties on the sale of Fire & Rescue boats.
Purchase Price
In consideration of the sale of the Assets, grant of License and
Assignment of Rights, Buyer hereby covenants and obligates itself as follows:
1. Buyer shall finance the operation of the Fire & Rescue Boat
Division as follows:
a. Procure not less than $100,000 working capital in equity as
of the date hereof.
b. Collect or factor the receivable from the New York Port
Authority and pay to Sonic Jet Performance a lump sum of
$100,000.00 upon the collection of the outstanding monies.
2. Within a period of 90 days (or such other period acceptable to
Seller) Buyer shall become listed as a publicly traded company,
having the following capital structure:
a. 2/3 (Two-third) of authorized common stock issued to Buyer
(or third parties)
b. 1/3 (One-third) of authorized common stock issued to Seller
c. 500 shares of "Series A" preferred convertible stock issued
to Seller upon receipt of all assets outlined in Exhibit A,
each share having a face value of $1,000 per share and
convertible into common stock at a 10-day average low bid
prior to conversion. The shares can be converted anytime
after Three (3) years of issuance. All conversions must be
made within five years.
3. Effective the date of this agreement, the Buyer shall do all
things and take all steps necessary immediately to assume control
of the Seller's Fire & Rescue Boat Division business operations
being conducted at Xxxx 00, 00000 Xxxxxxx Xxx. in Stanton
California, including without limitation:
a. Assuming the lease of such premises
b. Assuming possession and control of all Assets as per Exhibit A
c. Establishing management structure for the business
d. Accepting transfer of all existing Employees as per Exhibit B
e. Transferring to its name telephone, DSL and utilities service
f. Securing licenses, permits and other authorizations
necessary to conduct the business
g. Securing appropriate insurance for product & general
liability in an amount of $1 million or more naming the
seller as additional insured.
h. Satisfying existing orders
i. Soliciting new business
j. Assuming full responsibility for all ongoing business operations
4. Buyer shall assume full responsibility for all prior customers of
Seller's Fire & Rescue Boat Division and shall perform at its own
cost, any warranty work required on Fire & Rescue Boats sold by
the Seller prior to the date hereof up to a maximum of $10,000
per year. Seller shall reimburse Buyer for any actual out-of-
pocket costs for warranty work approved by it in excess of such amount.
Term & Termination
This Agreement shall remain in full force and effect for so long as
Buyer continues to market and sell Fire & Rescue Boats. The Seller
may terminate this Agreement at any time in the event Buyer breaches
any obligation hereof and fails to correct such breach within ninety
(90) days of notice by the Seller. Upon such termination, Buyer shall
return the Assets to Seller, and shall immediately cease using the SJP
Name and cease marketing and selling Fire & Rescue Boats. In lieu of
damages for such breach (and not as a penalty) Seller shall be
entitled to retain any of Buyer's shares in its possession.
Representations, Warranties and Undertakings
In connection with this Agreement the parties make the following
representations and warranties, acknowledging the reliance thereon by
the other:
a. Buyer represents that it has had the opportunity to make a full
and comprehensive review of all aspects of Seller's Fire & Rescue
Boat Division operations, including technical and financial
issues, that it is aware of the risks associated with such
business, that it has not relied on any statements or
representations made by Seller or its agents and representatives
(except for those set forth herein) as an inducement to enter
this agreement, that it has entered into this agreement freely
and voluntarily based on its own business interests and that
Seller shall have responsibility whatsoever for the success or
failure of the Buyer's business.
b. Seller represents it has the power and authority to execute,
deliver and perform this Agreement, and that this Agreement
constitutes the legal, valid and binding obligations of Seller
enforceable against Seller in accordance with its terms. Except
as otherwise set forth in the "Disclosure Notice" attached as
Exhibit C, Seller warrants it is the owner of the Assets and the
SJP Name, that it may transfer and license them to Buyer pursuant
to this Agreement without the consent or approval of any person,
that the Assets are free and clear of any liens, claims,
encumbrances, interests, third-party rights or restrictions of
any kind, and the Assignment of Contractual Rights is a valid
assignment of rights.
c. Buyer represents and warrants to Seller that Buyer has the power
and authority to execute, deliver and perform this Agreement, and
this Agreement constitutes the legal, valid and binding
obligations of Buyer enforceable against Buyer in accordance with
its terms.
d. Seller warrants that upon the execution hereof it shall deliver
to Buyer the Assets together with all related keys, documents and
information and shall take such additional steps as may be
necessary to complete the full legal transfer of the Assets to Buyer.
e. Buyer represents and warrants it shall not intentionally take any
action which would diminish the reputation and goodwill
associated with the SJP Name and will comply with any reasonable
request by Seller to correct any act or omission which could have
such effect.
Apart from the express warranties contained in this Agreement, the
Seller makes no representation or warranty of any kind, whether
express or implied and whether as to merchantability, fitness for
purpose or as to any other condition, quality or characteristic. All
of the Assets are sold and transferred "AS IS" and Buyer acknowledges
and agrees that is had had full opportunity to inspect the Assets and
hereby accepts them "AS IS."
Release & Indemnity
Buyer shall indemnify Seller and shall hold and save harmless Seller
from and against all debts, claims, actions, or causes of action,
losses, damages and attorney's fees that may hereafter arise from
Buyer's ownership of the Assets, use of the SJP Name and/or operation
of the Fire & Rescue Boat Division, whether directly or indirectly,
except as otherwise provided herein. Buyer shall indemnify and hold
Seller harmless from and pay any loss, damage, cost or expense
(including, without limitation, legal fees and court costs) incurred
by Seller as a result of any representation or warranty made herein
being incorrect or as a result of any breach by Buyer of the covenants
or obligations under this Agreement.
Concluding Provisions
This Agreement may not be amended except by an instrument in writing
signed by the parties hereto. Buyer shall not assign any portion of
this Agreement without the Seller's prior written consent.
This Agreement shall be governed by and construed in accordance with
the laws of California, and any disputes which cannot be settled
amicably between the parties shall be submitted to California courts
for resolution.
In Witness Whereof, each of the Parties hereto has caused this
Agreement to be executed by its duly authorized representatives,
effective as of the date first above written.
Seller:
Sonic Jet Performance, Inc.
By: /s/ Xxxxxxx Xxx Xxxxxx
Xxxxxxx Xxx Xxxxxx, President
Buyer:
Rockwell Power Systems, Inc.
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Director
XXXX OF SALE
(Exhibit A)
Sonic Jet Performance, Inc. ("Seller"), for and in consideration of
the sum of One Dollar ($1.00) and other good and valuable consideration
the receipt and sufficiency of which are hereby acknowledged, does
hereby bargain, sell, grant and convey unto Rockwell Power Systems,
Inc. ("Buyer"), all of Seller's right, title and interest in the
following Assets "AS IS" located at 00000 Xxxxxxx Xxxxxx, Xxxx 00,
Xxxxxxx Xxxxxxxxxx:
- All office furniture, supplies and equipment
- All brochures, videos and other marketing materials
- All customer lists and sales information
- All workshop tools and plant
- All Fire & Rescue Boat hardware, fittings and appurtenances
- All Fire & Rescue fiberglass boat hulls and parts (approx. 30 boats)
- Existing Boat Orders (including 2 Units ordered by NY Port Authority)
- Existing Fire & Rescue Demonstration Boats (2 units)
- Existing Fire & Rescue 15 ft Prototype (1 unit)
- Sonic Jet Performance WebSite and Domain registration
This xxxx of sale is expressly made subject to and a part of that
certain Business Assets Sale, License Agreement & Assignment of Rights
effective as from July 1, 2003 by and between Seller and Buyer and all
rights and responsibilities relating to this Xxxx of Sale shall be
governed thereby.
IN WITNESS WHEREOF, Seller and Buyer have executed this xxxx of sale:
July 1, 2003
Sonic Jet Performance, Inc.
By: /s/ Xxxxxxx Xxx Xxxxxx
Xxxxxxx Xxx Xxxxxx, President
Buyer:
Rockwell Power Systems, Inc.
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Director
EMPLOYEE TRANSFER CONSENT
(Exhibit B)
Rockwell Power Systems, Inc. as "Buyer" under that certain Business
Division Sale and License Agreement effective as from July 1, 2003 and
Sonic Jet Performance, Inc. as "Seller" do hereby consent and agree
that effective from July 1, 2003 the following employees shall be
transferred from the Seller's employment to employment by Buyer:
Xxxxxx Xxxxxxxxx Production
By signing above, each employee does hereby consent to the transfer of
his/her employment from Seller to Buyer preserving the terms of
his/her existing employment agreement, and each such employee hereby
acknowledges receipt from Seller of all compensation of whatever kind
to the date hereof and hereby forever releases Seller from any and all
claims of whatever kind arising out of his/her prior employment by Seller.
IN WITNESS WHEREOF, Seller and Buyer hereby acknowledge and consent to
such transfer of the above employees, and from the effective date
hereof Buyer hereby agrees and accepts to fulfill all contractual,
legal and tax obligations as the employer thereof.
July 1, 2003
Sonic Jet Performance, Inc.
By: /s/ Xxxxxxx Xxx Xxxxxx
Xxxxxxx Xxx Xxxxxx, President
Buyer:
Rockwell Power Systems, Inc.
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Director
DISCLOSURE NOTICE
(Exhibit C)
In connection with the Sale of Assets of the Fire & Rescue Boat
Division and the Assignment of Contractual Rights associated
therewith, Seller and Buyer acknowledge that a dispute has arisen
under the terms of the 2001 License Agreement pursuant to which Seller
is authorized to manufacture the Fire & Rescue Boats and that the
outcome of such dispute could impact the right of Seller and/or Buyer
to manufacture, market and sell such boats. Buyer acknowledges that
it has informed itself as to all pertinent matters relating to such
Agreement and the dispute arising thereunder, and Buyer hereby
releases and forever discharges Seller from any and all debts,
demands, actions, damages and claims of whatever kind arising out of
or related to such dispute and/or the Assignment of Contractual Rights
made under this agreement.
Post Acquisition Capital Structure
(Exhibit D)
Shareholder Address City, State, Zip Shares
X.X. Xxxxxx 0000 Xxxxxxxxx Xxx. Xxxxxxx Xxxxx, XX 00000 30,000
Xxxxxxx Xxxxxx 0000 Xxxxxxx Xxx. Xxxxxx, XX 00000 20,000
0000 Xxxxxxx Xxx. Xxxxxx, XX 00000
Xxx Xxxxx 0000 Xxxxx Xxxxx Xxxxx
#X000 Xxxxx Xxxx, XX 00000 20,000
Xxxxxxx Xxx 0000 Xxxxxxx Xxx. Xxxxxx, XX 00000 20,000
Xxxxxx X. Xxxx 0000 Xxxxx X,
Xxxxxxxxxxx Xxx. Xxxxxxxxxxx, XX 00000 20,000
Xxxxxx Xxxxx &
Xxxx Xxxxx 00000 Xxxxxxxxx
Xxxxx, #000 Xxxxxxxx, XX 00000-0000 20,000
Xxxxxx X. Xxxx 00000 Xxxxxxxxxxx Xx. Xxxxxxxx, XX 00000 20,000
Al Tamsebi 0000 Xxxxxx Xx. Xxxxxxxx, XX 00000 20,000
Xxxxx X. Xxx 00000 Xxxxxxxx Xxxxxx Xxx Xxxxx, XX 00000 20,000
Xxxxx Xxxx Xxxx 0000 Xxxxxxxx Xxx. Xxxxxxx Xxxxx, XX 00000 20,000
40 Bretagne Xxxxxxx Xxxxx, XX 00000
Microcap Alliance,
Inc. 000 X. 00xx Xx.
Xxxxx #000 Xxxxx Xxxx, XX 00000 20,000
Xxxx Xxxxxxx 0000 Xxxx Xxxxxx
Xxxxx 000 Xxxxxxx Xxxxx, XX 00000 40,000
Sonic Jet
Performance 11782 Western,
Xxxx 00 Xxxxxxx, XX 00000 2,500,000
eFund Capital
Partners, LLC 000 X. Xxxxx Xxxx.
Xxxxx 000 Xxxx Xxxxx, XX 00000 4,730,000
Total 7,500,000
September 15, 2003
Sonic Jet Performance, Inc.
By: /s/ Xxxxxxx Xxx Xxxxxx
Xxxxxxx Xxx Xxxxxx, President
Buyer:
Rockwell Power Systems, Inc.
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Director
