ASSET PURCHASE AGREEMENT
Exhibit
10.2
This
Asset Purchase Agreement ("Agreement") is entered into this 18th day of
March, 2009 by and between AmeriResource Technologies, Inc., a Delaware
corporation (“ARIO”), with a principal office located at 0000 X. Xxxxxxx Xxxx,
Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, and ATTO Enterprises, Inc., a Utah
corporation, (“Utah-ATTO”) for the purpose of transferring the ownership of
certain assets as identified herein (hereinafter “Property”).
WHEREAS, Utah ATTO desires to
acquire 100% ownership of the PROPERTY in exchange for the issuance of ONE
HUNDRED THOUSAND shares of Utah ATTO’s Common Stock; and
WHEREAS, ARIO desires to
transfer to Utah ATTO 100% of their ownership interest in the Property and in
exchange for ONE HUNDRED THOUSAND (100,000) shares of Utah ATTO Common
Stock..
NOW, THEREFORE with the above
being incorporated into and made a part hereof for the mutual consideration set
out herein and, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Exchange. The
parties will exchange shares as follows:
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F.
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G.
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ARIO
will transfer title to the Property or its ownership interest in Property,
to equal to and not less than 100% of all ownership interest, in Property
to Utah ATTO on or before the Closing Date and ARIO will deliver the
Property ownership rights with all the necessary paperwork to establish
ownership in Utah ATTO of 100% of
Property.
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H.
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The
Property to be transferred by ARIO is described as follows: all
software and software copyrights of Atto Solutions, LLC, all equipment,
inventory, fixtures, furnishings, personal property, intangible property,
computers, software, and documents and as made subject to the court orders
in Case No.. 080403306 from the Fourth Judicial District Court in and for
Utah County, State of Utah, entitled, GoJoe Incorporated v. Atto
Solutions, LLC and Xxxxx Xxxxxx. The Property includes but is
not limited to the items specified in Exhibit “A” Equipment List made a
part hereof.
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2. Termination. This
Agreement may be terminated at any time prior to the Closing Date under the
following circumstances:
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A. By Utah ATTO or
ARIO:
(1) If
there shall be any actual or threatened action or proceeding by or before any
court or any other governmental body which shall seek to restrain, prohibit, or
invalidate the transactions contemplated by this Agreement and which, in the
judgment of such Board of Directors made in good faith and based upon the advice
of legal counsel, makes it inadvisable to proceed with the transactions
contemplated by this Agreement; or
(2) If
the Closing shall have not occurred prior to March 31, 2009, or such later date
as shall have been approved by parties hereto, other than for reasons set forth
herein.
B. By ARIO:
(1) If
Utah ATTO shall fail to comply in any material respect with any of their
covenants or agreements contained in this Agreement or if any of the
representations or warranties of Utah ATTO contained herein shall be inaccurate
in any material respect; or
(2) If
Utah ATTO files for bankruptcy protection or otherwise takes any action to place
liens against the Property.
C. By Utah
ATTO:
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(3)
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If
ARIO shall fail to comply in any material respect with any of its
covenants or agreements contained in this Agreement or if any of the
representations or warranties of ARIO contained herein shall be inaccurate
in any material respect;
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(4)
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If
ARIO files for bankruptcy protection prior to the satisfaction of Property
debts currently secured by the
Property.
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In the
event this Agreement is terminated pursuant to this Paragraph, this Agreement
shall be of no further force or effect, no obligation, right, or liability shall
arise hereunder, and each party shall bear its own costs as well as the legal,
accounting, printing, and other costs incurred in connection with negotiation,
preparation and execution of the Agreement and the transactions herein
contemplated.
3. Representations and
Warranties of Utah ATTO. Utah ATTO hereby represents and
warrants that effective this date and the Closing Date, the following
representations are true and correct:
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A.
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Authority. Utah
ATTO has the full power and authority to enter into this Agreement and to
carry out the transactions contemplated by this
Agreement.
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B.
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No Conflict With Other
Instruments. The execution of this Agreement will not
violate or breach any document, instrument, agreement, contract, or
commitment material to the ownership of Property or to which Utah ATTO is
individually or jointly a party and has been duly authorized by all
appropriate and necessary action.
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C.
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No Conflict with Other
Instrument. The execution of this agreement will not
violate or breach any document, instrument, agreement, contract, or
commitment material to the Property or Utah
ATTO.
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4. Representations and
Warranties of ARIO.
ARIO
hereby represents and warrants that, effective this date and the Closing Date,
the representations and warranties listed below are true and
correct.
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A.
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Corporate
Authority. ARIO has the full corporate power and
authority to enter this Agreement and to carry out the transactions
contemplated by this Agreement. The Board of Directors of ARIO
has duly authorized the execution, delivery, and performance of this
Agreement.
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B.
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No Conflict With Other
Instruments. The execution of this Agreement will not
violate or breach any document, instrument, agreement, contract, or
commitment material to the business of ARIO to which ARIO is a party and
has been duly authorized by all appropriate and necessary
action.
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C.
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No Conflict with Other
Instrument. The execution of this agreement will not
violate or breach any document, instrument, agreement, contract, or
commitment material to ARIO.
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I.
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Deliverance of
Property. As of the Closing Date, the property or
ownership interest to be delivered to Utah ATTO, or its designee is valid
and legal ownership interest in and of the
Property.
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J.
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Complete Lien
Disclosure. Prior to the closing ARIO shall fully and
completely disclose and provide all relevant documents related to any lien
or obligation secured by the Property made the subject of this agreement
to Utah ATTO and shall respond to and provide information to reply to any
inquiry regarding any such obligations by
ARIO.
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F.
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Good
Title. ARIO warrants and represents that it will be
transferring good and clear title to the Property and that there are no
known defects or clouds on title and hereby agrees to indemnify and hold
Utah ATTO harmless from any such lack of clean title or and damages
resulting from any defects or clouds on title that exist as of the date of
closing, unless or except as clearly disclosed in writing to Utah ATTO
prior to the closing and which Utah ATTO agrees to excuse from this
provision.
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5. Closing. The
Closing as herein referred to shall occur upon such date as the parties hereto
may mutually agree upon, but is expected to be on or before March 31,
2009.
6. Conditions Precedent of ARIO
to Effect Closing. All obligations of ARIO under this
Agreement are subject to fulfillment prior to or as of the Closing Date, as
follows:
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A.
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The
representations and warranties by or on behalf of Utah ATTO contained in
this Agreement or in any certificate or documents delivered to ARIO
pursuant to the provisions hereof shall be true in all material respects
as of the time of Closing as though such representations and warranties
were made at and as of such time.
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B.
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Utah
ATTO shall have performed and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied with by
them prior to or at the Closing.
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K.
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All instruments and documents delivered to ARIO pursuant to the provisions hereof shall be reasonably satisfactory to ARIO's legal counsel. |
7. Conditions Precedent of Utah
ATTO to Effect Closing. All obligations of Utah ATTO under
this Agreement are subject to fulfillment prior to or as of the date of Closing,
as follows:
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A.
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The
representations and warranties by or on behalf of ARIO contained in this
Agreement or in any certificate or documents delivered to Utah ATTO
pursuant to the provisions hereof shall be true in all material respects
as of the time of Closing as though such representations and warranties
were made at and as of such time.
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B.
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ARIO
shall have performed and complied with all covenants, agreements and
conditions required by this Agreement to be performed or complied with by
it prior to or at the Closing.
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C.
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All
instruments and documents delivered to Utah ATTO pursuant to the
provisions hereof shall be reasonably satisfactory to Utah ATTO’s legal
counsel.
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8. Damages and Limit of
Liability. Each party shall be liable, for any material breach
of the representations, warranties, and covenants contained herein which results
in a failure to perform any obligation under this Agreement, only to the extent
of the expenses incurred in connection with such breach or failure to perform
Agreement.
9. Nature and Survival of
Representations and Warranties. All representations,
warranties and covenants made by any party in this Agreement shall survive the
Closing hereunder. All of the parties hereto are executing and
carrying out the provisions of this Agreement in reliance solely on the
representations, warranties and covenants and agreements contained in this
Agreement or at the Closing of the transactions herein provided for and not upon
any investigation upon which it might have made or any representations,
warranty, agreement, promise, or information, written or oral, made by the other
party or any other person other than as specifically set forth
herein.
10. Indemnification
Procedures. If any claim is made by a party which would give
rise to a right of indemnification under this paragraph, the party seeking
indemnification (Indemnified Party) will promptly cause notice thereof to be
delivered to the party from whom indemnification is sought (Indemnifying
Party). The Indemnified Party will permit the Indemnifying Party to
assume the defense of any such claim or any litigation resulting from the
claims. Counsel for the Indemnifying Party which will conduct the
defense must be approved by the Indemnified Party (whose approval will not be
unreasonably withheld), and the Indemnified Party may participate in such
defense at the expense of the Indemnified Party. The Indemnifying
Party will not in the defense of any such claim or litigation, consent to entry
of any judgment or enter into any settlement without the written consent of the
Indemnified Party (which consent will not be unreasonably
withheld). The Indemnified Party will not, in connection with any
such claim or litigation, consent to entry of any judgment or enter into any
settlement without the written consent of the Indemnifying Party (which consent
will not be unreasonably withheld). The Indemnified Party will
cooperate fully with the Indemnifying Party and make available to the
Indemnifying Party all pertinent information under its control relating to any
such claim or litigation. If the Indemnifying Party refuses or fails
to conduct the defense as required in this Section, then the Indemnified Party
may conduct such defense at the expense of the Indemnifying Party and the
approval of the Indemnifying Party will not be required for any settlement or
consent or entry of judgment.
11. Default at
Closing. Notwithstanding the provisions hereof, if either
party shall fail or refuse to deliver any of the Shares or Property, or shall
fail or refuse to consummate the transaction described in this Agreement prior
to the Closing Date, such failure or refusal shall constitute a default by that
party and the other party at its option and without prejudice to its rights
against such defaulting party, may either (a) invoke any equitable remedies to
enforce performance hereunder including, without limitation, an action or suit
for specific performance, or (b) terminate all of its obligations hereunder with
respect to the defaulting party.
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12. Costs and
Expenses. ARIO and Utah Atto shall bear their own costs and
expenses in the proposed exchange and transfer described in this
Agreement. ARIO and Utah ATTO have been represented by their own
attorneys in this transaction, and shall pay the fees of their attorneys, except
as may be expressly set forth herein to the contrary.
13. Notices. Any
notice under this Agreement shall be deemed to have been sufficiently given if
sent by registered or certified mail, postage prepaid, addressed as
follows:
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To
Utah ATTO:
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To
ARIO:
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Xxxxx
Fast
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AmeriResource
Technologies, Inc.
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Xxxx 000 Xxxxx, Xxxxxx Xxxxx
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0000
X. Xxxxxxx Xxxx, Xxxxx 000
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Xxxx
Xxxx Xxxx, Xxxx 00000
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Xxx
Xxxxx, Xxxxxx 00000
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14. Miscellaneous.
A. Further
Assurances. At any time and from time to time, after the
effective date, each party will execute such additional instruments and take
such additional steps as may be reasonably requested by the other party to
confirm or perfect title to any property transferred hereunder or otherwise to
carry out the intent and purposes of this Agreement.
B. Waiver. Any
failure on the part of any party hereto to comply with any of its obligations,
agreements, or conditions hereunder may be waived in writing by the party to
whom such compliance is owed.
C. Brokers. Neither
party has employed any brokers or finders with regard to this Agreement not
disclosed herein.
D. Headings. The
section and subsection headings in this Agreement are inserted for convenience
only and shall not affect in any way the meaning or interpretation of this
Agreement.
E. Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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F. Governing
Law. This Agreement was negotiated and is being contracted for
in the State of Utah, and shall be governed by the laws of the State of Utah,
notwithstanding any conflict-of-law provision to the contrary. Any
issue regarding title to the Property shall be governed by the laws of the State
of Utah where the Property is located. Any suit, action or legal
proceeding arising from or related to this Agreement shall be submitted for
binding arbitration resolution to the American Arbitration Association, in Salt
Lake City, Utah, pursuant to their Rules of Procedure or any other mutually
agreed upon arbitrator. The parties agree to abide by decisions
rendered as final and binding, and each party irrevocably and unconditionally
consents to the jurisdiction of such arbitrator and waives any objection to the
laying of venue in, or the jurisdiction of, said Arbitrator.
G. Binding
Effect. This Agreement shall be binding upon the parties
hereto and inure to the benefit of the parties, their respective heirs,
administrators, executors, successors, and assigns.
H. Entire
Agreement. The Agreement contains the entire agreement between
the parties hereto and supersedes any and all prior agreements, arrangements or
understandings between the parties relating to the subject matter
hereof. No oral understandings, statements, promises or inducements
contrary to the terms of this Agreement exist. No representations,
warranties covenants, or conditions express or implied, other than as set forth
herein, have been made by any party.
I. Severability. If
any part of this Agreement is deemed to be unenforceable the balance of the
Agreement shall remain in full force and effect.
IN
WITNESS WHEREOF, the parties have executed this Agreement the day and year first
above written.
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ATTO
Enterprises, Inc.
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AmeriResource
Technologies, Inc.,
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A
Utah corporation
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A
Delaware corporation
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By: /s/ Xxxxx Fast
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By:
/s/ Xxxxxx
Xxxxxxx
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Name: Xxxxx
Fast
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Name: Xxxxxx
Xxxxxxx
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Its: President
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Its:
President
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Exhibit
“A” Equipment List
Office
rack:
NETGEAR
24-PORT GIGABIT SMART SWITCH
M#
GS724T
S#
1C04755n00B40
CISCO
2801 Router
Attoserver2
Supermicro
S#
S5015PT26B10396
Build
date: 01/30/2007
1U RM BLK
PD LGA775 DVD FD 1066MHZ
Intel
Dual Core 3.0 GHZ 2X1M 800MHZ
1MEG DDR2
PC4200 RAM
1 80 GIG
SATA HD
Atto Dev
server
SUPERMICRO
OS -
LINUX
Build
date: 01/01/04 (est)
2 Intel
XEON 2.80GHZ
2 80 GB
HD
2 1 GB
DIMMS
Atto
Exchange server
OS -
WINDOWS SERVER 2003
APP -
MICROSOFT EXCHANGE
Build
date: 01/01/04 (est)
SUPERMICRO
2 Intel
XEON 2.80GHZ
2 80 GB
HD
2 1 GB
DIMMS
**************
Consonus
rack:
(listed
in order physically in rack)
TOP
CISCO ASA
5510 ROUTER
S#
JMX1051K1CY
Atto Web
server
OS -
DEBIAN LINUX
APPS -
APACHE, PHP
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Supermicro
S#
S6015B327169758
Build
date: 01/30/2007
1U RM
6015B-3RB BLKFORD DP-XEON XXX
0 XXXXX
XXXX XX 0.0XXX 0X0XX BOXED
0
XXXXXXXX 0XX XXX0 XXX000X0X0X0/0X FB DIMM
2 SEAGATE
250GB SATA 8MB CACHE
Atto DB
Readonly
OS -
DEBIAN LINUX
DB -
MYSQL
Supermicro
Build
date: 01/30/2007
S#
S6025B327108180
2U RM
6025B-3RV 500P DP-XEON BLACK
2 INTEL
XEON DC 2.0GHZ 2X4MB BOXED
0
XXXXXXXX 0XX XXX0 XXX000X0X0X0/0X FB DIMM
2 SEAGATE
250GB SATA 8MB CACHE
Atto DB
ReadWrite
OS -
DEBIAN LINUX
DB -
MYSQL
Supermicro
Build
date: 01/30/2007
S#
S6025B327102642
2U RM
6025B-3RV 500P DP-XEON BLACK
2 INTEL
XEON DC 2.0GHZ 2X4MB BOXED
0
XXXXXXXX 0XX XXX0 XXX000X0X0X0/0X FB DIMM
2 SEAGATE
250GB SATA 8MB CACHE
Atto
Windows server
OS -
WINDOWS SERVER 2003
APPS -
FOXPRO, SOURCESAFE, SOURCEOFFSITE
Supermicro
Build
date: 01/30/2007
S#
S6025B327108182
1 INTEL
QUAD CORE XEON 1.60GHZ 2X4MB BOXED
2
XXXXXXXX 0XX XXX XXX000X0X0X0X0/0X XX XXXX(0X0XX)
6 SEAGATE
500GB SATA 16MB
2 SEAGATE
80 GB SATA 7200
1 ADAPTEC
SATA RAID 1210SA 2 PORT LOW PROFILE
BOTTOM
Following
2 servers bought same time
Calculated
research and technology (801-222-0930)
Phoenix
Web server
OS -
DEBIAN LINUX
APPS -
APACHE, PYTHON, DJANGO
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Intel®
Server System SR1530AH
S#
QSHC7100038
Tag#
D66619-005
Product #
SR1530AH
Asset
tag# 12222259
Build
Date 05/15/07
1 INTEL
XEON 3050 2MB CACHE
1 GB
DDR2-667MODULE NON-ECC
1
Kingston 1GB XXX0-000 XXX-XXX
1 CDRW+DVD SLIMLINE BLACK
1 CDRW+DVD SLIMLINE BLACK
0 XXXXXXX
000 XX ATA 100 7200 RPM
Phoenix
DB server
OS -
LINUX
DB -
POSTGRES
Intel®
Server System SR1530AH
S#
QSHC7100040
Tag#
D66619-005
Product #
SR1530AH
Asset
tag# 12222260
Build
Date 05/15/07
1 INTEL
XEON 3050 2MB CACHE
1 GB
DDR2-667MODULE NON-ECC
1
Kingston 1GB XXX0-000 XXX-XXX
1
CDRW+DVD SLIMLINE BLACK
0 XXXXXXX
000 XX ATA 100 7200 RPM
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