ASSET PURCHASE AGREEMENT
Exhibit
10.1
|
|
|
by
and between
XXXX
XXXXXXXXX, INC.
as
Seller
and
as
Purchaser
June
25, 2009
|
This
Agreement (“Agreement”) is entered into as of June 25, 2009, by and between 310
Holdings, Inc., a Nevada Corporation (the “Purchaser”), and Xxxx Xxxxxxxxx,
Inc., a Delaware corporation (the “Seller”).
WHEREAS,
Seller is a business primarily centered around reading high volume legacy data
computer tapes (the “Business”);
WHEREAS,
Seller wishes to sell to Purchaser and Purchaser wishes to purchase and assume
from Seller, certain assets with respect to the Business on the terms and
subject to the conditions set forth in this Agreement.
NOW
THEREFORE, In consideration of the mutual covenants, agreements, representations
and warranties contained in this Agreement, the parties agree as
follows:
ARTICLE
I
PURCHASE AND SALE OF
ASSETS
1.1 Sale and Transfer of
Assets. On and subject to the terms and conditions set forth
in this Agreement, Seller agrees to sell, convey, transfer, assign and deliver
to Purchaser, and Purchaser agrees to purchase and acquire from Seller, free and
clear of any encumbrances, all of Seller’s right, title, and interest in and to
all of the assets of Seller as set forth on Exhibit A attached
hereto (“Purchased Assets”) at the Closing in consideration for the payment by
Purchaser of the Purchase Price as specified below in Section 1.3.
1.2
No Assumption of
Liabilities. The Purchaser shall in no event assume or be
responsible for any liabilities, liens, security interests, claims, obligations
or encumbrances of Seller, contingent or otherwise.
1.3
Consideration. Upon
the terms and subject to the satisfaction of the conditions contained in this
Agreement, in consideration of the aforesaid sale, assignment, transfer and
delivery of the Purchased Assets, Purchaser will pay or cause to be paid a
purchase price consisting of eight hundred nine thousand five hundred
ninety-three (809,593) shares of the Buyer’s common stock, par value $0.001 per
share (the “Common Stock”).
ARTICLE
II
REPRESENTATIONS AND
WARRANTIES OF SELLER
Seller
represents and warrants to Purchaser that the statements contained in this
Article II are correct and complete as of the date hereof:
2.1. Due
Incorporation. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. Seller is duly
qualified as a foreign corporation to do business and is in good standing in
each jurisdiction where the nature of the business conducted or property owned
by it makes such qualification necessary, other than those jurisdictions in
which the failure to so qualify would not have a material adverse effect on the
business, operations or financial condition of Seller.
2
2.2. Authority;
Enforceability. This Agreement and any other agreements
delivered together with this Agreement or in connection herewith have been duly
authorized, executed and delivered by Seller and are valid and binding
agreements enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity; and Seller has full corporate power and
authority necessary to enter into this Agreement, and such other agreements
delivered together with this Agreement or in connection herewith and to perform
its obligations hereunder and under all other agreements entered into by Seller
relating hereto.
2.3. Approvals;
Consents. Seller has, and on the Closing Date will have, the
right, power and authority to enter into this Agreement and to sell, transfer
and deliver the Purchased Assets and to perform all undertakings and obligations
hereunder. No approval, authorization, consent, order or other action
of, or filing with, any third party, including without limitation, any public,
governmental, administrative or regulatory authority, agency or body
(collectively, “consents”), is required in connection with the execution,
delivery and/or performance of this Agreement by Seller or the consummation of
the transactions contemplated hereby.
2.4. Liens. Seller
has good and marketable title to the Purchased Assets and has full
power and authority to sell, assign and transfer to Purchaser all of the
Purchased Assets free and clear of restrictions on or conditions to transfer or
assignment, and free and clear of mortgages, liens, pledges, charges,
encumbrances, equities, claims, covenants, conditions, or
restrictions. All of the Purchased Assets are in good operating
condition and repair, ordinary wear and tear excepted.
2.5.
Taxes. Seller
has filed all federal, state, local, foreign or other tax returns which are
required Taxes to be filed by any of them or been approved for an extension of
same, and such returns are, to the best knowledge of Seller, true and
correct. There is no material liability for the payment of any
federal, state, local, foreign or other taxes whatsoever (including any interest
or penalties) with respect to Seller except for which non-compliance would not
have a material adverse effect on the business, operations or financial
condition of Seller.
2.6. Applicable
Laws. Seller has complied with all applicable laws, rules and
regulations of the City, County, State and federal government as required except
for which non-compliance would not have a material adverse effect on the
business, operations or financial condition of the Seller.
2.7. Material
Information. No material fact regarding Seller has been
omitted which would reasonably affect a prudent investor’s decision to purchase
the assets being sold to Purchaser herein; and the information furnished by or
on behalf of Seller in connection with this Agreement and the transactions
contemplated hereby do not contain any untrue statement of a material fact, or
omit to state a material fact, necessary in order to make the statements made,
in light of the circumstances under which they were made, not
misleading.
3
2.8. No
Brokers. No broker, finder or intermediary has been employed
by or on behalf of Purchaser in connection with the transactions contemplated
hereby, and there is no such person entitled, as a result of Purchaser’s action,
to any fee or commission upon the consummation of the transactions contemplated
hereby.
2.9. Legal
Proceedings. To the best knowledge of the Seller, there is no
(a) legal proceeding pending or threatened, against, involving or affecting the
Seller and/or any of its respective assets or rights, including the Purchased
Assets; (b) judgment, decree, injunction, rule, or order of any governmental
entity applicable to the Seller that has had or is reasonably likely to have,
either individually or in the aggregate, a Material Adverse Effect; (c) legal
proceeding pending or threatened, against the Seller that seeks to restrain,
enjoin or delay the consummation of this Agreement or any of the other
transactions contemplated by this Agreement or that seeks damages in connection
therewith; or (d) injunction, of any type.
2.10. Licenses; Compliance with
Regulatory Requirements.
The
Seller holds all licenses, franchises, ordinances, authorizations, permits,
certificates, variances, exemptions, concessions, leases, rights of way,
easements, instruments, orders and approvals, domestic or foreign (collectively,
the “Licenses”) required for or which are material to the ownership of the
Purchased Assets. The Seller is in compliance with, and has conducted its
business so as to comply with, the terms of its respective Licenses and with all
applicable laws, rules, regulations, ordinances and codes (domestic or
foreign). Without limiting the generality of the foregoing, the
Seller (i) has all Licenses of foreign, state and local governmental entities
required for the operation of the facilities being operated on the date hereof
by the Seller (the “Permits”), (ii) has duly and currently filed all reports and
other information required to be filed with any governmental entity in
connection with such Permits and (iii) is not in violation of any of such
Permits.
ARTICLE
III
PURCHASER'S
REPRESENTATIONS
Purchaser
hereby represents and warrants to Seller that the statements contained in this
Article III are correct and complete as of the date hereof:
3.1. Due
Incorporation. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation and has the requisite corporate power to own its properties and to
carry on its business as now being conducted. Purchaser is duly
qualified as a foreign corporation to do business and is in good standing in
each jurisdiction where the nature of the business conducted or property owned
by it makes such qualification necessary, other than those jurisdictions in
which the failure to so qualify would not have a material adverse effect on the
business, operations or financial condition of Purchaser or its
subsidiaries.
4
3.2. Authority;
Enforceability. This Agreement and any other agreements
delivered together with this Agreement or in connection herewith have been duly
authorized, executed and delivered by Purchaser and are valid and binding
agreements enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights generally and
to general principles of equity; and Purchaser has full corporate power and
authority necessary to enter into this Agreement and such other agreements
delivered together with this Agreement or in connection herewith and to perform
its obligations hereunder and under all other agreements entered into by
Purchaser relating hereto.
3.3. No
Brokers. No broker, finder or intermediary has been employed
by or on behalf of Purchaser in connection with the transactions contemplated
hereby, and there is no such person entitled, as a result of Purchaser’s action,
to any fee or commission upon the consummation of the transactions contemplated
hereby.
3.4. Valid
Issuance. The Common Stock, when issued pursuant to this
Agreement, will be duly and validly authorized and issued, fully paid and
non-assessable. The issuance of the Securities to the Seller is exempt from the
registration requirements of the Securities Act of 1933, as amended (the
“Securities Act”), pursuant to an exemption provided by Section 4(2) and Rule
506 promulgated thereunder.
ARTICLE
IV.
THE
CLOSING
4.1. The
Closing. The closing (“Closing”) of the transactions
contemplated by this Agreement shall take place at the offices of Xxxxxx &
Xxxxxx, LLP on July 15, 2009 (“the Closing Date”).
4.2 Seller's Obligations at
Closing. At the Closing, Seller shall deliver or cause to be
delivered to Purchaser:
4.2.1.
Instruments transferring to Purchaser all right, title and interest in and to
Purchased Assets, or such other forms as Purchaser may reasonably
request.
4.2.2. Such
other items as may be reasonably necessary for the Closing to
occur.
4.3. Cooperation by
Seller. Seller, at any time before or after the Closing Date,
will execute, acknowledge, and deliver any further assignments, conveyances, and
other assurances, documents, and instruments of transfer, reasonably requested
by Purchaser, and will take any other Seller consistent with the terms of this
Agreement that may reasonably be requested by Purchaser for the purpose of
assigning, transferring, granting, conveying, and confirming to Purchaser, or
reducing to possession, any or all property to be conveyed and transferred by
this Agreement.
4.4. Purchaser's Obligations at
Closing. Purchaser will deliver or cause to be delivered the
required consideration; and such other items as may be reasonably necessary for
the Closing to occur.
4.4.1. a certificate
registered in the name of Seller representing the number of shares of Common
Stock to be issued to Seller.
5
ARTICLE
V
GENERAL
5.1. Indemnities.
(a) Seller shall indemnify, defend and
hold Purchaser, each of the officers, agents and directors and current
shareholders of Purchaser as of the Closing Date, harmless against and in
respect of any and all claims, demands, losses, costs, expenses, obligations,
liabilities, damages, recoveries and deficiencies, including, without
limitation, reasonable attorneys' fees (collectively, “Losses”), that it shall
incur or suffer, which directly or indirectly arise out of, result from, or
relate to any breach, or failure to perform, any of Seller's representations,
warranties, covenants, or agreements in this Agreement or in any schedule,
certificate, exhibit, or other instrument furnished or to be furnished by Seller
under this Agreement. The indemnification described herein shall also
apply in the event of an assertion against Purchaser, or the Purchased Assets,
by any person, entity, government or subdivision thereof, of any claim, demand,
penalty, fine, or tax accruing prior to the Closing. The
indemnification provided for in this paragraph shall survive the Closing and
consummation of the transactions contemplated hereby and termination of this
Agreement.
(b) Upon Notice to Seller specifying in
reasonable detail the basis therefore. Purchaser may set off any
amount to which it may be entitled under this Article V against amounts
otherwise payable under this Agreement. Neither the exercise nor the
failure to exercise such right of setoff shall limit Purchaser in any manner in
the enforcement of any other remedies that may be available to it.
5.2. Confidentiality. Each
party hereto agrees with the other party that, unless and until the transactions
contemplated by this Agreement have been consummated, they and their
representatives will hold in strict confidence all data and information obtained
with respect to another party or any subsidiary thereof from any representative,
officer, director or employee, or from any books or records or from personal
inspection, of such other party, and shall not use such data or information or
disclose the same to others, except: (i) to the extent
such data is a matter of public knowledge or is required by law to be published;
and (ii) to the extent that such data or information must be used or
disclosed in order to consummate the transactions contemplated by this
Agreement.
5.3. Transition. Seller
shall cooperate and shall use best efforts to assist Purchaser in the smooth
transition of the ownership of the Purchased Assets and in the preservation for
Purchaser of the goodwill of Seller’s advertisers, customers, suppliers, and
others having business relations with Sellers and related to the Purchased
Assets.
5.4. Effect of
Heading. The subject headings of the paragraphs and
subparagraphs of this Agreement are included for purposes of convenience only
and shall not affect the construction or interpretation of any of its
provisions.
5.5. 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. Fax or PDF copies of signatures shall be
treated as originals for all purposes.
6
5.6. Schedules. All
schedules referred to herein shall be deemed incorporated by reference in their
entirety as though fully set forth at the places to which they are
referred. Unless otherwise stated, all references to schedules are
references to schedules to this Agreement.
5.7. Gender. Wherever
appropriate in this Agreement, plural shall be deemed also to refer to the
singular, the neuter shall be deemed to refer to the masculine, and vice
versa.
5.8. Parties in
Interest. Nothing in this Agreement whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than the parties to it and their respective
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third persons to any party to this
Agreement, nor shall any provision give any third person any right of
subrogation or Seller over or against any party to this Agreement.
5.9. Assignment. This
Agreement shall be binding on, and shall inure to the benefit of, the parties to
it and their respective heirs, legal representatives, successors and assigns;
provided, however, no party may assign any or all of its rights under this
Agreement without the prior written consent of the others.
5.10. Survival. All
representations, warrants and covenants contained in this Agreement shall
survive the Closing and remain in full force and effect until the third
anniversary of the Closing Date.
5.11. Preparation of
Agreement. Each party acknowledges that: (i) the
party had the advice of, or sufficient opportunity to obtain the advice of,
legal counsel separate and independent of legal counsel for any other party
hereto; (ii) the terms of the transactions contemplated by this Agreement are
fair and reasonable to such party; and (iii) such party has voluntarily entered
into the transactions contemplated by this Agreement without duress or
coercion. Each party further acknowledges that such party was not
represented by the legal counsel of any other party hereto in connection with
the transactions contemplated by this Agreement, nor was he or it under any
belief or understanding that such legal counsel was representing his or its
interests. Each party agrees that no conflict, omission or ambiguity
in this Agreement, or the interpretation thereof, shall be presumed, implied or
otherwise construed against any other party to this Agreement on the basis that
such party was responsible for drafting this Agreement.
5.12. Governing Law; Waiver of
Jury Trial. All questions concerning the construction,
interpretation and validity of this Agreement shall be governed by and construed
and enforced in accordance with the domestic laws of the State of New York
without giving effect to any choice or conflict of law provision or rule
(whether in the State of New York or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of New
York. In furtherance of the foregoing, the internal law of the State
of New York will control the interpretation and construction of this Agreement,
even if under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily or necessarily
apply.
7
BECAUSE
DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST
QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE
PARTIES WISH APPLICABLE LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE
PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE
BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL
RIGHT TO TRIAL BY JURY IN ANY SELLER, SUIT OR PROCEEDING BROUGHT TO ENFORCE OR
DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED
HERETO
.5.13. Submission to
Jurisdiction. Any legal action or proceeding with respect to
this Agreement must be brought in the courts of the State of New York or the
appropriate federal court located in New York and, by execution and delivery of
this Agreement, the parties hereby accept for themselves and in respect to their
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The parties hereby irrevocably waive, in connection with any
such Seller or proceeding, any objection, including, without limitation, any
objection to the venue or based on the grounds of forum non-convenience, which
it may now or hereafter have to the bringing of any such Seller or proceeding in
such respective jurisdictions.
5.14. Injunctive
Relief. The Parties agree that a breach of this Agreement may
cause Purchaser irreparable harm for which monetary damages are not
adequate. In addition to all other available legal remedies,
Purchaser shall have the right to injunctive relief to enforce this
Agreement.
5.15. Severability. It
is the desire and intent of the parties that the provisions of this Agreement be
enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall be
ineffective, without invalidating the remaining provisions of this Agreement or
affecting the validity or enforceability of such provision in any
jurisdiction. Notwithstanding the foregoing, if such provision could
be more narrowly drawn so as not to be invalid, prohibited or unenforceable in
such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other
jurisdiction.
5.16. Expenses. Each
of Seller and Purchaser will bear its own costs and expenses (including, without
limitation, fees and expenses of attorneys, accountants, investment bankers and
other advisors) incurred in connection with this Agreement and the transactions
contemplated hereby.
8
5.17. Notices. Any
notices or other communications required or permitted hereunder shall be
sufficiently given if personally delivered to it or sent by registered mail or
certified mail, postage prepaid, or by facsimile addressed as
follows:
If to
Seller:
Xxxx Xxxxxxxxx, Inc.
Attn: Xxxx
Xxxxxxxxx
0000 Xxxxxxx Xxxx
Xxxxxxx Xxxxx, Xxxxxxx Xxxxxx
X0X0X0
Tel: (000) 000-0000
Fax: ( )
-
With a copy
to:
Xxxxxx
& Xxxxxx, LLP
Attn:
Xxxxx X. Xxxxxx, Esq.
000 Xxxxx
0 Xxxxx, Xxxxx 000
Xxxxxxxxx,
Xxx Xxxxxx 00000
Tel:
(000) 000-0000
Fax:
(000) 000-0000
If to
Purchaser:
Attn:
Xxxx Xxxxxxxxx
0000
Xxxxxxx Xxxx
Xxxxxxx
Xxxxx, Xxxxxxx Xxxxxx X0X 0X0
Tel:
(000) 000-0000
Fax:
( ) ___-___
or such
other addresses as shall be furnished in writing by any party in the manner for
giving notices hereunder, and any such notice or communication shall be deemed
to have been given as of the date so delivered, mailed or
faxed.
5.18. Entire Agreement;
Modification; Waiver. This Agreement and the exhibits attached
hereto constitute the entire agreement between the parties pertaining to the
subject matter contained in it and supersedes all prior and contemporaneous
agreements, representations and understandings of the parties. No
supplement, modification, or amendment of this Agreement shall be binding unless
executed in writing by all parties. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of
any other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in
writing by the party making the waiver.
[Signature
page follows]
9
IN WITNESS WHEREOF the parties
have duly executed this Asset Purchase Agreement as of the date first written
above.
|
“Seller”
XXXX
XXXXXXXXX, INC.
By:
Name:
Title:
|
|
“Purchaser”
By:
Name:
Title: President,
Chief Executive Officer
|
10
EXHIBIT
A
PURCHASED
ASSETS
|
Equipment
|
$6,267
|
|
Office
Furniture & Equipment
|
$57,942
|
|
Telephone
System
|
$7,524
|
|
Computer
Software
|
$1,991
|
|
Tape
Reading Equipment
|
$259,511
|
|
Tape
Ovens
|
$6,753
|
|
Drive
Cooling System
|
$1,423
|
|
Moisture
Control Device
|
$4,389
|
|
Tools
|
$3,297
|
|
Mobile
Data Recovery Unit
|
$120,091
|
|
Liftruck
|
$8,473
|
|
$477,600
|
11
