ASSET PURCHASE AGREEMENT
Asset
Purchase Agreement ("Agreement") made this 11th day of March, 2005, by and
between Global Modular Inc ("Purchaser"), a Nevada corporation having its
principal place of business located at 0000 Xxxxxxx Xxxx, Xxxxxxxxxx, XX 00000;
and Impact Modular Leasing, Inc. ("Seller") a Nevada corporation, with its
principal place of business located at 000 X. 00xx, Xxx X, Xxxxxx, XX 00000,
sometimes collectively referred to herein as the "Parties."
WHEREAS,
Seller has acquired title to certain intellectual properties (the "Assets")
from
the Bankruptcy Trustee of Aurora Modular Industries, Inc. bankruptcy
auction;
WHEREAS,
Seller wishes to sell the Assets to Purchaser and Purchaser wishes to purchase
the Assets,
NOW,
upon
the following terms and conditions, it is agreed as follows:
1.0.
PURCHASE AND SALE OF ASSETS: In reliance on the representations, warranties
and
covenants contained in this Agreement, on the Closing Date, Seller shall sell,
assign, deliver and transfer to Purchaser, and Purchaser agrees to purchase
and
acquire from Seller, free and clear of all encumbrances and on the terms and
subject to the conditions set forth in this Agreement, the Assets set forth
in
Schedule I.
2.0
PURCHASE PRICE: The purchase price for the Assets shall be Five Hundred Thousand
Dollars ($500,000), payable by the delivery by Purchaser to Seller of a
promissory note (the "Note), a copy of which is attached hereto a Exhibit "A."
The terms of the Note shall provide, among other things, that Note bear interest
at five per cent (5%) per annum and shall be payable as follows: Three hundred
thousand dollars ($300,000.00) plus accrued interest upon the unpaid balance
shall be payable upon the first anniversary date of the Note, and two hundred
thousand dollars ($200,000.00) plus accrued interest shall be payable upon
the
second anniversary date of the Note. Upon the second anniversary date of the
Note, Seller shall have the option of receiving the $200,000, plus accrued
interest, in cash or by requiring Purchaser to issue to Seller, five million
shares of Purchaser's unregistered common stock (the "Payment Shares".)
Purchaser shall have the right to pre-pay all or any portion of the Note at
any
time, with any pre-payments being first applied to accrued interest and then
to
principal.
3.
PAYMENT SHARES: All Payment Shares issued to the Seller will not have been
registered under the Securities Act of 1933, as amended (the "Act"), on the
basis that this transaction is exempt under the Act and such shares shall have
the status of securities acquired under Section 4(2) of the Securities Act
of
1033 (the "Act"), as not involving any public offering. (See "Representations
and Warranties of Seller" below)
4.0
REPRESENT A TIONS AND WARRANTIES OF SELLER. As a material inducement to
Purchaser to enter into this Agreement and with the understanding that Purchaser
will be relying thereon in consummating the transaction contemplated by this
Agreement, Seller represents and warrants to Purchaser as follows:
4.1
CORPORATE AUTHORIZATION. Seller has full corporate power and authority to enter
into this Agreement and to sell the Assets in accordance with the terms of
this
Agreement. The execution, delivery and performance of this Agreement by Seller,
and all other agreements or instruments to be executed by Seller pursuant to
this Agreement, have been duly and effectively authorized by its board of
directors and its and no other corporate proceedings on its part are necessary
to authorize this Agreement or the transactions contemplated by this Agreement.
This Agreement constitutes, and such other agreements or instruments will
constitute, the legal, valid and binding obligations of Seller and in accordance
with their respective terms, except as enforcement may be limited by bankruptcy,
insolvency, or other similar laws affecting the enforcement of creditors' rights
in general, moratorium laws or by general principles of equity.
4.2
NO
LIENS OR ENCUMBRANCES. Seller will transfer and convey to Purchaser, good,
marketable and insurable title to the Assets, and, the Assets shall be free
and
clear of all mortgages, liens, claims, charges, encumbrances, leases, security
interests, pledges, and tit1e retention agreements of any kind or nature
(collectively, "Encumbrances")
4.4
SELLER AS AN INVESTOR IN PURCHASER'S SECURITIES. In the event Seller shall
choose to receive Payment Shares, Seller acknowledges that in accepting
Purchaser's common stock as payment for the Assets, Seller becomes an investor
in the common stock of the Purchaser, and in that capacity Seller represents
and
warrants to and with Purchaser as follows:
4.4.1
HIGH DEGREE OF RISK Seller acknowledges that investment in Purchaser's stock
is
speculative and involves a high degree of risk and the possible loss of its
entire investment.
4.4.2
REVIEW OF AVAILABLE FINANCIAL INFORMATION Seller is familiar with the operations
of the Purchaser, has and will evaluate the merits and risks of the transaction,
will make its independent judgment as to the value of the securities to be
issued by reviewing the financial and other information regarding the Purchaser
that is and will be publicly available and on file with the Securities and
Exchange Commission.
4.4.3
ACQUIRED SHARES FOR INVESTMENT Seller will be acquiring the Purchase Shares
for
the purpose of investment in the Purchaser and not for the purpose of
distributing or publicly selling the shares to others, reselling, assigning,
pledging or hypothecating the shares, or dividing its participation in ownership
of the shares with others.
4.4.4.
UNREGISTERED SHARES. Seller understands and acknowledges that it has been
advised by the Purchaser that Purchase Shares will not have been registered
under the Act, on the basis that (i) this transaction is exempt under the Act
and the shares shall have the status of securities acquired under Section 4(2)
of the Act, as not involving any public offering, and (ii) in the view of the
Securities and Exchange Commission (the "SEC"), the statutory basis for the
exemption would not be present if, notwithstanding the forgoing, the Seller
will
have a present intention to dispose of such shares or any portion
thereof.
4.4.5.
NO
ASSURANCE OF LIQUIDITY Seller recognizes that the Purchaser may not comply
in
the future with the requirements, which would permit it to sell the shares
of
Purchaser pursuant to Rule 144. As such, Seller agrees that such shares may
have
to be held for an indeterminate period of time. Seller understands that the
certificates representing the shares shall be stamped with a legend in
substantially the following form:
"The
shares of common stock represented by this certificate have not been registered
under the Securities Act of 1933 or under applicable state securities laws
and
may not be sold, transferred, or pledged in the absence of such registration,
unless pursuant to an exemption from the registration requirements of the
Securities Act of 1933 and applicable state securities laws. The Company
reserves the right to require on opinion of counsel satisfactory to it before
effecting any transfer of the shares."
Purchaser's
shares cannot be expected to be readily liquidated, if at all. Seller is aware
that there is currently a very limited public market for the shares of
Purchaser.
4.46
REPRESENTATIONS AND WARRANTIES. The representations and warranties of Seller
have been made with the knowledge and expectation that Purchaser is relying
on
them, and such representations and warranties shall survive the date of this
Agreement.
5.0
REPRESENTATIONS AND WARRANTIES OF PURCHASER. As a material inducement to Seller
to enter into this Agreement and with the understanding that Seller will be
relying thereon in consummating the transactions contemplated by this Agreement,
Purchaser represents and warrants to Seller as follows:
5.1
ORGANIZATION AND STANDING. Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada, and has
all
requisite corporate power to carry on its business as it is now being
conducted.
5.2
CORPORATE AUTHORIZATION. Purchaser has the full corporate power and authority
to
enter into this Agreement and purchase the Assets in accordance with the terms
of this Agreement. The execution, delivery and performance of this Agreement
by
Purchaser pursuant to this Agreement have been duly and effectively authorized
by the board of directors of Purchaser and no other corporate proceedings on
the
part of Purchaser are necessary to authorize this Agreement or the transactions
contemplated by this Agreement. This Agreement constitutes, and such other
agreements and instruments will constitute, the legal, valid and binding
obligations of Purchaser which are, or will be, enforceable against Purchaser
in
accordance with their respective terms, except as enforcement may be limited
by
bankruptcy, insolvency, or other similar laws affecting the enforcement of
creditors rights in general, moratorium laws or by general principles of
equity.
5.3
FULLY
PAID AND V ALIDL Y ISSUED SHARES. The Purchase Shares, when issued and delivered
to Seller, shall be deemed to be, and shall be, fully paid and validly issued
shares of stock of Purchaser and Seller shall not be liable to any further
call
or assessment thereon, and any holder of said shares of stock shall not be
liable for any further payment in respect thereto.
5.5
CAPITALIZATION. The current capitalization of Purchaser, is set forth in the
filings made with the Securities and Exchange Commission ("SEC".) .
5.6
REPRESENTATIONS AND WARRANTIES. The representations and warranties of Purchaser
have been made with the knowledge and expectation that Seller is relying on
them, and such representations and warranties shall survive the Date of this
Agreement.
6.
BINDING EFFECT. This Agreement shall be binding upon and inure to the benefit
of
and be enforceable against the Parties and their respective successors and
permitted assigns. Nothing in this Agreement, express or implied, is intended
to, or shall confer on, any person other than any of the parties hereto any
rights, benefits or remedies of any nature whatsoever under or by reason of
this
Agreement.
7.
GOVERNING LAW. This Agreement shall in all respects be governed by, and enforced
and interpreted in accordance with the laws of the State of California without
giving effect to choice of law principles.
8.
NOTICES. All notices, consents, requests, demands, instructions or other
communications provided for in this Agreement shall be in writing and shall
be
deemed validly given, made and served when delivered personally, or sent by
certified or registered mail, postage prepaid, overnight courier or by telephone
facsimile, pending the designation of another address, addressed as
follows:
If
to
Seller: Impact
Modular Leasing, Inc.
000
X.
00xx,
Xxx
X
Xxxxxx,
XX 00000 in Street Bldg. “C”
Attn:
Mr.
Xxxxxxx Xxxxxxx
Fax
No.
(000) 000-0000
If
to
Purchaser: Global
Modular Inc.
0000
Xxxxxxx Xxxx
Xxxxxxxxxx,
XX 00000
Attn:
Xxxxxxx Xxxxxxxx
Fax
No.
(000) 000-0000
9.
ENTIRE
AGREEMENT AND COUNTERPARTS. This Agreement and the attached Exhibits and
Schedules evidence the entire agreement among the Seller and Purchaser relating
to the purchase and sale of the Assets supersede in all respects any and all
prior oral or written agreements or understandings. This Agreement shall be
amended or modified only by written instrument signed by Seller and Purchaser.
This Agreement may be executed in counterparts
10.
HEADINGS. Section and article headings used in this Agreement have no legal
significance and are used solely for convenience of reference.
11.
EXPENSES. Each party shall pay for its own legal, accounting and other similar
expenses incurred in connection with the transactions contemplated by this
Agreement, whether or not such transactions are consummated.
12.
SEVERABILITY. If one or more provisions of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
13.
ARBITRATION. This agreement shall be deemed to be made, governed by, interpreted
under and construed in all respects in accordance with the commercial rules
of
Judicial Arbitration and Mediation Service ("JAMS"). This chosen jurisdiction
is
irrespective of the country or place of domicile or residence of either party.
In the event of controversy arising out of the interpretation, construction,
performance or breach of this agreement, the parties hereby consent to
adjudication under the commercial rules of JAMS. Said venue of the arbitration
shall be in Stanislaus County, California. Judgment on the award rendered by
the
arbitrator may be entered in any federal or state court in Stanislaus County,
California.
14.
CONSENTS. The person signing this Agreement on behalf of each party hereby
represents and warrants that he has the necessary power, consent and authority
to execute and deliver this Agreement on behalf of such party
15.
INTERPRETATION; CONSTRUCTION. Each party to this Agreement has consulted with
independent counsel and tax advisors with respect to the terms of this
Agreement. The Parties acknowledge that each Party and its counsel has reviewed
and revised, or had an opportunity to review and revise, this Agreement, and
the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed and
delivered as of the date first above written.
|
Impact
Modular Leasing, Inc.
|
Global
Modular Inc
|
|
By:
/s/ Xxxxxxx Xxxxxxx
|
By:
/s/ Xxxx XxXxxx
|
|
Xxxxxxx
Xxxxxxx
|
Xxxx
XxXxxx
|
|
Title:
President & CEO
|
Title:
Vice President & Treasurer
|
