AGREEMENT OF SALE
AGREEMENT OF SALE, made as of
March 10, 2010, between Reflectkote, Inc, a Nevada corporation, having an
address at 000 Xxxx 00xx Xxxxxx, Xxx 0X, Xxx Xxxx, XX 00000
(“Seller”), and Extreme Mobile Coatings Worldwide Corp., a Delaware corporation,
having an address at 000 Xxxxx Xx., Xxxxxxxxxxxxx, XX 00000
(“Purchaser”).
WITNESSETH:
WHEREAS, Purchaser desires to
acquire, and Seller desires to sell, the assets of the business known as
Reflectkote hereinafter specified, upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, in
consideration of the covenants and agreements hereafter set forth, and other
valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto agree as follows:
1. Agreement
to Sell. Seller agrees to sell, transfer and deliver to
Purchaser, and Purchaser agrees to purchase, upon the terms and conditions
hereinafter set forth, all of the assets (other than cash, certificates of
deposit, securities, cash equivalents and accounts receivable) of the business
known as Reflectkote (the “Assets”), including without limitation the
following:
(a) the
patents and rights described in Exhibit A-1 hereto (the “Patents”);
and
(b) all
right, title and interest of Seller in the name Reflectkote and any variants
thereof (the “Name”)
2. Purchase
Price. The purchase price to be paid by Purchaser, as
follows:
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(a)
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Assumption
of those certain liabilities of REFLECTKOTE Existing Indebtedness
identified in Exhibit B hereto in said principal amount, and paying the
same according to the terms
thereof,
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(b)
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The
issuance of a total of 50,000,000 shares of common stock of Extreme Mobile
Coatings Worldwide Corp. (the “Extreme Common Stock”), which shall be
subject to a Registration Statement on Form S-4 and distributed to the
shareholders of records of Reflectkote, Inc. as of the record date set and
established by the Board of Directors of Reflectkote, Inc., that date
being March 9, 2010. The Extreme Common Stock shall not be
distributed to the shareholders of Reflectkote, Inc., until the
effectiveness of the Registration Statement on Form
S-4.
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3. The
Closing. The “closing” means the settlement of the obligations
of Seller and Purchaser to each other under this agreement, including the
payment of the purchase price to Seller as provided in Article 1 hereof and the
delivery of the closing documents provided for in Article 4
hereof. The closing shall be held at the offices of Xxxxxxx X. Xxxxx,
Esq., 0 Xxxx Xxxxx, Xxxx Xxxxx, XX 00000, at 10 A.M. on March 10,
2010 (the “closing date”).
4. Closing
Documents. At the closing Seller shall execute and deliver to
Purchaser:
(a) a
Xxxx of Sale substantially in the form of Exhibit C hereto
(b) such
other instruments as may be necessary or proper to transfer to Purchaser all
other ownership interests in the Assets to be transferred under this
agreement
Seller
shall advise Purchaser of, and cause to be delivered to Purchaser, all trade
secrets and proprietary information pertaining to the business.
At the
closing Purchaser shall execute and deliver to Seller:
(a) an
Assumption of the Existing Indebtedness in form and substance satisfactory to
Seller's attorney
5. Closing
Adjustments. The following items shall be apportioned as of
midnight of the day preceding the closing date:
(a) interest
on the Existing Indebtedness, if any.
6. Use of
Purchase Price to Pay Encumbrances. If there is any lien or
encumbrance against the Assets, or anything else affecting this sale, which
Seller is obligated to pay and discharge at the closing, Seller may use any
portion of the balance of the purchase price to discharge it, or Seller may
allow to Purchaser the amount thereof as a credit at the
closing. Purchaser agrees to provide separate certified checks as
reasonably requested to assist in clearing up these matters.
7. Representations
and Warranties of Seller. Seller represents and warrants to
Purchaser as follows:
(a) Seller
is a corporation duly organized and validly existing under the laws of Nevada,
and is duly qualified to do business in New York. Seller has full
power and authority to conduct its business as now carried on, and to carry out
and perform its undertakings and obligations as provided herein. The
execution and delivery by Seller of this agreement and the consummation of the
transactions contemplated herein have been duly authorized by the Board of
Directors of Seller and will not conflict with or breach any provision of the
Certificate of Incorporation or Bylaws of Seller.
(b) No
action, approval, consent or authorization of any governmental authority is
necessary for Seller to consummate the transactions contemplated
hereby.
(c) Seller
is the owner of and has good and marketable title to the Assets, free of all
liens, claims and encumbrances, except as set forth herein.
(d) There
are no violations of any law or governmental rule or regulation pending against
Seller or the Assets.
(e) There
are no judgments, liens, suits, actions or proceedings pending against Seller or
the Assets, except as set forth in Exhibit D herein.
(f) Seller
has not entered into, and the Assets are not subject to, any: (i)
written contract or agreement for the employment of any employee of the
business; (ii) contract with any labor union or guild; (iii) pension,
profit-sharing, retirement, bonus, insurance, or similar plan with respect to
any employee of the business; or (iv) similar contract or agreement affecting or
relating to the Assets.
8. Representations
and Warranties of Purchaser. Purchaser represents and warrants
to Seller as follows:
(a) Purchaser
is a corporation duly organized and validly existing under the laws of Delaware,
and is duly qualified to do business in New York. Purchaser has full
power and authority to carry out and perform its undertakings and obligations as
provided herein. The execution and delivery by Purchaser of this
agreement and the consummation of the transactions contemplated herein have been
duly authorized by the Board of Directors of Purchaser and will not conflict
with or breach any provision of the Certificate of Incorporation or Bylaws of
Purchaser.
(b) No
action, approval, consent or authorization of any governmental authority is
necessary for Purchaser to consummate the transactions contemplated
hereby.
9.
No Other
Representations. Purchaser acknowledges that neither Seller
nor any representative or agent of Seller has made any representation or
warranty (expressed or implied) regarding the Assets or the business, or any
matter or thing affecting or relating to this agreement, except as specifically
set forth in this agreement. Seller shall not be liable or bound in
any manner by any oral or written statement, representation, warranty, agreement
or information pertaining to the Assets or the business or this agreement
furnished by any broker, agent or other person, unless specifically set forth in
this agreement. Purchaser has inspected the Assets, Purchaser agrees
to take the Assets “as is” and in their present condition, subject to reasonable
use, wear, tear and deterioration between now and the closing date.
10. Conduct
of the Business. Seller, until the closing,
shall:
(a) conduct
the business in the normal, useful and regular manner;
(b) use
its best efforts to preserve the business and the goodwill of the customers and
suppliers of the business and others having relations with Seller;
and
(c) give
Purchaser and its duly designated representatives reasonable access to Seller's
premises and the books and records of the business, and furnish to Purchaser
such data and information pertaining to Seller's business as Purchaser from time
to time reasonably may request.
Unless
and until the closing shall take place, Purchaser shall hold in confidence all
information obtained in connection with this agreement, and, if for any reason
the closing shall not take place, Purchaser shall return to Seller all documents
received hereunder.
11. Income
And Expenses Before and After the Closing. Except as otherwise
provided in this agreement, Seller shall be liable for the payment of all bills
for merchandise, goods and inventory delivered to the business before the
closing; and Purchaser shall be liable for the payment of all bills for
merchandise, goods and inventory delivered to the business after the date of the
closing.
All money
received by Purchaser after the closing, on account of Seller's accounts
receivable and other receivables (including without limitation credits for
unsold merchandise returned to suppliers before the closing) shall belong to
Seller, and shall be collected by Purchaser and promptly remitted to
Seller.
Seller
shall be liable for the payment of all salaries, payroll deductions and taxes
levied upon the employer in connection with the employee's work performed before
the closing. Purchaser shall be responsible for the payment of all
salaries, payroll deductions and taxes levied upon the employer in connection
with the employee's work performed after the closing.
12. Conditions
to Closing. The obligations of the parties to close hereunder
are subject to the following conditions:
(a) All
of the terms, covenants and conditions to be complied with or performed by the
other party under this agreement on or before the closing shall have been
complied with or performed in all material respects.
(b) All
representations or warranties of the other party herein are true in all material
respects as of the closing date.
(c) On
the closing date, there shall be no liens or encumbrances against the Assets,
except as provided for herein.
If
Purchaser shall be entitled to decline to close the transactions contemplated by
this agreement, but Purchaser nevertheless shall elect to close, Purchaser shall
be deemed to have waived all claims of any nature arising from the failure of
Seller to comply with the conditions or other provisions of this agreement of
which Purchaser shall have actual knowledge at the closing.
13. Brokerage. The
parties hereto represent and warrant to each other that they have not dealt with
any broker or finder in connection with this agreement or the transactions
contemplated hereby, and no broker or any other person is entitled to receive
any brokerage commission, finder's fee or similar compensation in connection
with this agreement or the transactions contemplated hereby. Each of
the parties shall indemnify and hold the other harmless from and against all
liability, claim, loss, damage or expense, including reasonable attorneys' fees,
pertaining to any broker, finder or other person with whom such party has
dealt.
14. Notices. All
notices, demands and other communications required or permitted to be given
hereunder shall be in writing and shall be deemed to have been properly given if
delivered by hand or by Federal Express courier or by registered or certified
mail, return receipt requested, with postage prepaid, to Seller or Purchaser, as
the case may be, at their addresses first above written, or at such other
addresses as they may designate by notice given hereunder.
15. Survival. The
representations, warranties and covenant contained herein shall survive the
delivery of the Xxxx of Sale and shall continue in full force and effect after
the closing, except to the extent waived in writing.
16. Further
Assurances. In connection with the transactions contemplated
by this agreement, the parties agree to execute and deliver such further
instruments, and to take such further actions, as may be reasonably necessary or
proper to effectuate and carry out the transactions contemplated in this
agreement.
17. Entire
Agreement. This agreement contains all of the terms agreed
upon between Seller and Purchaser with respect to the subject matter
hereof. This agreement has been entered into after full
investigation. All prior oral or written statements, representations,
promises, understandings and agreements of Seller and Purchaser are merged into
and superseded by this agreement, which alone fully and completely expresses
their agreement.
18. Changes
Must Be In Writing. No delay or omission by either Seller or
Purchaser in exercising any right shall operate as a waiver of such right or any
other right. This agreement may not be altered, amended, changed,
modified, waived or terminated in any respect or particular unless the same
shall be in writing signed by the party to be bound. No waiver by any
party of any breach hereunder shall be deemed a waiver of any other or
subsequent breach.
19. Captions
And Exhibits. The captions in this agreement are for
convenience only and are not to be considered in construing this
agreement. The Exhibits annexed to this agreement are an integral
part of this agreement, and where there is any reference to this agreement it
shall be deemed to include said Exhibits.
20. Governing
Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York. If any provisions
of this agreement shall be unenforceable or invalid, such unenforceability or
invalidity shall not affect the remaining provisions of this
agreement.
21. Binding
Effect. This agreement shall not be considered an offer or an
acceptance of an offer by Seller, and shall not be binding upon Seller until
executed and delivered by both Seller and Purchaser. Upon such
execution and delivery, this agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, successors and permitted assigns. This agreement may
be executed in counterparts.
IN WITNESS WHEREOF, the
parties have executed this agreement as of the date first above
written.
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REFLECTKOTE,
INC
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By
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M.
Xxxxx Xxxxx, President
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EXTREME
MOBILE COATINGS WORLDWIDE CORP.
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By
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Xxxxxxx
Xxxxxxxx,
President
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EXHIBIT
A-1
Patents
a)
Patent
Application Number 61/132,569
Filing
Date: 06/28/2008
Confirmation
No.: 2571
b)
Patent
Application Number 61/273,098
Filing
Date: 07/31/2009
Confirmation
No.: 2776
EXHIBIT
B
Existing
Indebtedness
a) Settlement
Agreement by and between RKTE (f/k/a HVAG), Xxxxx Xxxxxxx and Xxxxx Xxxxxxx vs.
Xxxxxxx Xxxxxxxxx
b) Settlement
Agreement by and between RKTE (f/k/a HVAG), and Xxxxx Xxxxxxx vs. Xxxxxxx
Xxxxxx
c)
RKTE Consent Order, Final Judgment with the SEC
d)
RKTE Monetary Judgment with the SEC
e)
State of Illinois- payroll taxes
f)
State of Michigan – payroll taxes.
g)
Amount due to Manhattan Transfer and Registrar
EXHIBIT
C
XXXX OF
SALE
KNOW THAT, for valuable
consideration, Reflectkote, Inc, a Nevada corporation, having an address at 000
Xxxx 00xx Xxxxxx, Xxx 0X, Xxx Xxxx, XX 00000 (“Seller”), does hereby
grant, sell, transfer and assign unto Extreme Mobile Coatings Worldwide Corp., a
Delaware corporation, having an address at 000 Xxxxx Xx., Xxxxxxxxxxxxx,
XX 00000 (“Purchaser”), all right, title and interest of Seller in
and to the assets of the business known as Reflectkote, more particularly
described in Exhibit A attached hereto and made a part hereof,
TO HAVE AND TO HOLD the same
unto Purchaser and the heirs, executors, administrators, successors and assigns
of Purchaser forever.
IN WITNESS WHEREOF, Seller has
duly executed this Xxxx of Sale as of March 10, 2010.
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REFLECTKOTE,
INC
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By
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M.
Xxxxx Xxxxx,
President
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EXHIBIT
D
Judgments, Actions And
Proceedings
