EXHIBIT 10.50
ASSETS SALE AND PURCHASE AGREEMENT
This Sale and Purchase Agreement ("Agreement") dated as of the 4th day of
December, 1998 by and between LONE STAR LASER TECHNOLOGIES, ("Purchaser"), and
WATERMARC FOOD MANAGEMENT CO., a Texas corporation ("Seller").
INTRODUCTION
Seller desires to sell and Purchaser desires to purchase all of the assets
set forth in Article I below, of Seller's Xxxxx' & Xxxx'x Food Products
Division, ("Xxxxx' & Pitt's") as a going concern on the terms and conditions set
forth in this Agreement.
In consideration of the mutual promises of the parties; in reliance on the
representations, warranties, covenants, and conditions contained in this
Agreement; and for other good and valuable consideration, the parties agree as
follows:
ARTICLE I
SALE
SALE OF ASSETS
1.01. Seller agrees to sell, convey, transfer, assign, and deliver to
Purchaser, and Purchaser agrees to purchase and accept from Seller, all of the
following assets of Xxxxx' & Xxxx'x:
(a) All raw materials, packaging materials and inventories of Xxxxx' &
Pitt's in existence at the close of business on December 3, 1998.
(b) All of Seller's rights and interests in and to all contracts
associated with Xxxxx' & Xxxx'x to the extent that they can lawfully be assigned
or transferred to Purchaser.
(c) All papers and records (whether in written or other form) of any
kind presently in or in the future coming into the care, custody, or control of
Seller relating to any of the assets sold to Purchaser pursuant to this
Agreement.
(d) All permits, licenses, franchises, consents, authorities, special
authorities, and other similar acts of any government body (federal, state,
local or foreign) held by Seller relating to Xxxxx' & Pitt's that may lawfully
be assigned or transferred, subject to any action by such body that may be
required in connection with such assignment or transfer.
(e) All of Seller's rights, titles, and interests in and to the
trademarks, service marks, and trade names related to Xxxxx' & Xxxx'x and its
products.
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(f) All of Seller's rights, titles, and interests in and to the Xxxxx'
& Pitt's name or any variant thereof.
(g) Accounts receivable of Xxxxx' & Xxxx'x on and after December 4,
1998 (the "Closing Date").
ALLOCATION OF PURCHASE PRICE
1.02. In consideration of the sale and transfer of the assets of Xxxxx' &
Pitt's and the representations, warranties, and covenants of Seller set forth in
this Agreement, Purchaser shall do the following:
(a) Forgive and cancel the promissory note dated November 2, 1998 in
the amount of $300,000.00 executed by Seller, as maker, in favor of Purchaser,
attached hereto as Exhibit 1;
(b) Assume and discharge, and indemnify and hold Seller harmless
against all debts, obligations and liabilities of Seller relating to Seller's
5-Year 9% Convertible Subordinated Debentures due on March 16, 1999;
(c) Issue a lien on the assets of Xxxxx' & Xxxx'x, including, but not
limited to, the raw materials, packaging materials and inventories, in the name
of Dallas Collateral Agency, Inc. as Collateral Agent for the 9% Convertible
Subordinated Debentureholders, for the purpose of securing said
Debentureholders' interests under the 9% Convertible Subordinated Debentures;
(d) Pay to Seller the sum of $_______0__________ in cash at closing.
ASSUMPTION OF LIABILITIES
COMPLETION OF CONTRACTS
1.03 Purchaser will assume all liabilities of Seller relating to Xxxxx' &
Pitt's and the assets of Xxxxx' & Xxxx'x that existed prior to or arise after
the Closing Date, including, but not limited to, accounts payable, notes,
contracts and taxes.
ARTICLE II
SELLER'S REPRESENTATIONS
AND WARRANTIES
Seller hereby represents and warrants to Purchaser that the following
facts and circumstances are and at all times up to the Closing Date will be true
and correct.
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ORGANIZATION
2.01 Seller is a corporation duly organized, validly existing, and in good
standing under the laws of Texas. Seller has all requisite power and authority
(corporate and, when applicable, government) to own, operate, and carry on the
Xxxxx' & Pitt's business as now being conducted.
2.02. Seller is the sole owner of Xxxxx' & Xxxx'x with the right to sell
or dispose of its assets.
INVENTORIES
2.03. All inventories of Xxxxx' & Pitt's owned by Seller ("Inventories")
are being sold to Purchaser "AS IS, WHERE IS" WITHOUT WARRANTIES, GUARANTEES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER WHATSOEVER, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTY OF MERCHANTABILITY AND WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE.
OTHER TANGIBLE PERSONAL PROPERTY
2.04. All other tangible personal property sold under this Agreement is
being sold to Purchaser "AS IS, WHERE IS" WITHOUT WARRANTIES, GUARANTEES OR
REPRESENTATIONS OF ANY KIND OR CHARACTER WHATSOEVER, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, WARRANTY OF MERCHANTABILITY AND WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE.
TITLE TO ASSETS AND PROPERTIES
2.05. Seller has good and marketable title to all of the assets and
properties, tangible and intangible, that are material to the Xxxxx' and Xxxx'x
business.
INSURANCE POLICIES
2.06. Seller has maintained and now maintains insurance on the assets and
properties sold under this Agreement of a type customarily insured. The
insurance covers property damage by fire or other casualty, as well as
adequately protects against all normal liabilities, claims, and risks against
which it is customary to insure. Seller shall maintain this insurance until
December 31, 1998. Seller and Purchaser agree to a mutual waiver of subrogation
between the parties during this period. After December 31, 1998 Seller's
insurance coverage shall terminate and Purchaser shall be responsible for
obtaining its own insurance coverage on the assets purchased.
EMPLOYEES
2.07. Seller shall terminate the employment of all employees of the Xxxxx'
& Pitt's Food Products Division at the close of business on December 20, 1998.
All employment benefits and fringe benefits, including, but not limited to,
health insurance, 401K plans, bonuses, vacations, worker's compensation and the
like, for these employees shall terminate on December
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20, 1998. Thereafter, those employees shall be considered employees of Purchaser
for all purposes.
AUTHORITY
2.08. Seller has full power and authority to execute, deliver, and/or
consummate this Agreement. All reports and returns required to be filed with any
government or regulatory agency with respect to this transaction have been or
will be properly filed.
BROKERS
2.09. Neither Seller nor any of its officers, directors, employees, or
shareholders has retained, consented to, or authorized any broker, investment
banker, or third party to act on Seller's behalf, directly or indirectly, as a
broker or finder in connection with the transaction contemplated by this
Agreement.
ARTICLE III
PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser hereby represents and warrants to Seller that:
AUTHORITY
3.01. Purchaser has full power and authority to execute, deliver, and/or
consummate this Agreement. All corporate acts, reports, and returns required to
be filed by Purchaser with any government or regulatory agency with respect to
this transaction have been or will be properly filed prior to the Closing Date.
No provisions exist in any contract, document, or other instrument to which
Purchaser is a party or by which Purchaser is bound that would be violated by
consummation of the transaction contemplated by this Agreement.
LICENSES AND PERMITS
3.02 Purchaser shall take all necessary steps to obtain in its own name
all licenses and permits necessary or required for the operation of the Xxxxx' &
Xxxx'x business. Purchaser shall defend, indemnify and hold Seller harmless from
any claims, costs, fines, actions and liabilities of any kind or character
brought by any individual or entity arising out of Purchaser's operation of the
Xxxxx' & Pitt's business on or after the Closing Date prior to receiving said
licenses and permits in its own name.
TAXES
3.03. All real and personal property taxes assessed on the Xxxxx' & Xxxx'x
business by any taxing authority for the 1998 tax year shall be paid by
Purchaser when the same are due.
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BROKERS
3.04. Neither Purchaser nor any of Purchaser's officers, directors,
employees or shareholders, has retained, consented to, or authorized any broker,
investment banker, or third party to act on its behalf, directly or indirectly,
as a broker or finder in connection with the transaction contemplated by this
Agreement.
ARTICLE IV
INDEMNIFICATION
4.01. To the extent not assumed by Purchaser under the terms of this
Agreement, Seller shall indemnify, defend and hold harmless Purchaser, including
specifically its officers, directors, shareholders, and employees, from and
against all claims, expenses, obligations, damages, costs, payments,
liabilities, refunds, fines, and penalties, including, but not limited to, costs
and expenses of litigation (including costs of investigation) and reasonable
attorney's fees, that are caused by, arise out of or are attributable to:
(a) The assets sold under this Agreement which occurred prior to the
Closing Date; or
(b) The non-performance of any covenants, agreements or other
obligations pursuant to this Agreement required to be performed by Seller after
the Closing Date; or
(c) The breach by Seller of any of its representations and warranties
contained in this Agreement.
4.02. Purchaser shall indemnify, defend and hold harmless Seller and its
officers, directors, shareholders, and employees, from and against all claims,
expenses, obligations, damages, costs, payments, liabilities, refunds, taxes,
fines and penalties, including, but not limited to, costs and expenses of
litigation (including costs of investigation) and reasonable attorney's fees,
that are caused by, arise out of or are attributable to:
(a) The assets sold under this Agreement which occurred on or after
the Closing Date; or
(b) The non-performance of any covenants, agreements, or other
obligations pursuant to this Agreement required to be performed by Purchaser on,
at or subsequent to the Closing Date; or
(c) The breach by Purchaser of any of its representations and
warranties contained in this Agreement; or
(d) Purchaser's operation of the Xxxxx' & Pitt's business without
permits or licenses in its own name on or after the Closing Date.
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4.03. When either party proposes to assert the right to be indemnified
under this Article IV with respect to third-party claims, actions, suits, or
proceedings, that party (hereinafter referred to as "Indemnitee") shall, within
30 days after the receipt of notice of the commencement of the claim, action,
suit, or proceeding, notify the other party (hereinafter referred to as
"Indemnitor") in writing, enclosing a copy of all papers served or received. On
receipt of this notice, Indemnitor shall have the right to direct the defense of
the matter, but Indemnitee shall be entitled to participate in the defense by
employing its own separate counsel in any such action at its own expense.
ARTICLE V
GENERAL PROVISIONS
SURVIVAL OF REPRESENTATIONS,
WARRANTIES AND COVENANTS
5.01. The representations, warranties, covenants, and agreements of the
parties contained in this Agreement or contained in any writing delivered
pursuant to this Agreement shall survive the Closing Date for the period of time
set forth in this Agreement.
ASSIGNMENT OF AGREEMENT
5.02. This Agreement shall be binding on and inure to the benefit of the
parties to this Agreement and their respective successors and permitted assigns.
This Agreement may not be assigned by any party without the written consent of
both parties and any attempt to make an assignment without consent is void.
GOVERNING LAW
5.03. This Agreement shall be construed and governed by the laws of the
state of Texas.
AMENDMENTS; WAIVER
5.04. This Agreement may be amended only in writing by the mutual consent
of all of the parties, evidenced by all necessary and proper corporate
authority. No waiver of any provision of this Agreement shall arise from any
action or inaction of any party, except an instrument in writing expressly
waiving the provision executed by the party entitled to the benefit of the
provision.
ENTIRE AGREEMENT
5.05. This Agreement, together with any documents and exhibits given or
delivered pursuant to this Agreement, constitutes the entire agreement between
the parties to this Agreement. No party shall be bound by any communications
between them on the subject matter of this Agreement unless the communication is
(a) in writing, (b) bears a date contemporaneous with or subsequent to the date
of this Agreement, and (c) is agreed to by all parties to this
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Agreement. On execution of this Agreement, all prior agreements or
understandings between the parties shall be null and void.
SEVERABILITY
5.06. Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provisions
in any other jurisdiction.
IN WITNESS WHEREOF, WATERMARC FOOD MANAGEMENT CO. and LONE STAR LASER
TECHNOLOGIES have executed this Agreement as of the date first above written.
WATERMARC FOOD MANAGEMENT CO.
By: S/
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XXXXXX X. XXXXXXXXXX
President
LONE STAR LASER TECHNOLOGIES
By: S/
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Title: OWNER
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