Exhibit 99.3
ASSET PURCHASE AGREEMENT
This Agreement is made and entered into as of this
31st day of July, 1995, by and between Carme International, Inc.,
a Delaware corporation ("BUYER") and Carme, Inc., a Nevada corporation
("SELLER").
RECITALS
WHEREAS, Seller is engaged in the business (the "BUSINESS") of
manufacturing and selling health and beauty aids including without limitation
those listed on Schedule A attached hereto (the "PRODUCTS") with its principal
place of business located at 00 Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000;
WHEREAS, Seller intends to file a petition under chapter 11, title 11
of the United States Code (the "BANKRUPTCY CODE") in order to reorganize its
financial structure; and
WHEREAS, Seller desires to sell to Buyer substantially all of Seller's
assets related to the Business and Buyer desires to purchase said assets, all on
the terms and subject to the conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Purchase and Sale of Assets
1.1. Purchased Assets. At Closing, Buyer shall purchase and Seller
shall sell, transfer, assign and deliver to Buyer for the consideration and upon
the terms and conditions hereinafter set forth, all assets of the Business, (the
"PURCHASED ASSETS") not otherwise expressly excluded pursuant to Section 1.2 of
this Agreement. The Purchased Assets shall include, but not be limited to, the
following:
(a) Those contracts and agreements with customers, suppliers and
lessors of the Business and other third parties listed on Schedule 1.1(a)
attached hereto (the "CONTRACTS"), and all of Seller's rights under the
Contracts;
(b) All products that are in all respects ready for distribution and
sale, with the exception of final packaging for shipment (the "Finished
Goods Inventories") of the Business that meet all of the following
criteria:
(i) have been produced in the eighteen months prior to the Closing
Date;
(ii) are packaged in the most current packaging for such product; and
(iii) are the current formulation for such product; plus
all raw materials, work-in-progress, samples, supplies and packaging
related to the product lines included in such Finished Goods Inventory (the
"Primary Inventory"); provided, however, that the Primary Inventory does
not include any Finished Goods Inventories that are in greater quantities
of each such Product than can reasonably be expected to be sold within the
six month period following the Closing Date based on the sales of such
product in the six month period immediately prior to the date of this
Agreement plus 10% of such six-month sales, including all raw materials,
work-in-progress, samples, supplies and packaging related to such Finished
Goods Inventories;
(c) All other inventories of the Business not included within the
definition set forth in Section 1.1(b) above (the "Secondary Inventory");
(d) All customer files and all records of the Business;
(e) All trademarks, trade names, trade styles and logos (and all
goodwill associated therewith), registered or unregistered, and all
applications and registrations therefor, including without limitation those
listed on Schedule 1(e) hereto and all claims or causes of action of Seller
against third parties relating to any of the foregoing;
(f) All outstanding and uncollected accounts and notes receivable
listed on Seller's Aged Receivables Report attached hereto as Schedule
1.1(f)(i) (the "ACCOUNTS RECEIVABLE"); but the Accounts Receivable do not
include those accounts described on Schedule 1.1(f) (ii) attached hereto
(the "Excluded Accounts Receivable");
(g) All fixed assets and leasehold improvements (the "FIXED ASSETS"),
including those listed on Schedule 1.1(g); and
(h) All of Seller's trade secrets, including but not limited to the
rights to the formulas to the Products.
EXCEPT AS SPECIFICALLY PROVIDED IN ARTICLE III, SELLER IS SELLING THE
PURCHASED ASSETS TO BUYER IN AS IS, WHERE IS CONDITION. ALL WARRANTIES, EXPRESS
OR IMPLIED WITH RESPECT TO THE PURCHASED ASSETS AND THE BUSINESS, INCLUDING
WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED.
1.2. Excluded Assets. The Excluded Assets are as follows:
(a) all cash on hand and in banks, cash equivalents and investments;
(b) all avoidance actions, claims (and benefits arising therefrom)
and litigation against third parties to the extent such actions, claims and
litigation are not related directly to continuation of the Business;
including, without limitation, actions, claims and litigations against: (i)
Xxxx Xxxxx, its officers, shareholders, agents and representatives; and
(ii) Seller's current and former officers, directors, shareholders,
employees, agents and auditors;
(c) all tax refunds;
(d) Seller's rights under this Agreement;
(e) Seller's corporate charter, minute and stock record books, and
corporate seal;
(f) the Excluded Accounts Receivable;
(g) Seller's executory contracts, except the Contracts and those
other executory contracts assumed pursuant to Section 1.3 below; and
(h) Seller's rights under any insurance policies.
1.3. Assumed Obligations. At Closing, Seller shall assign, and Buyer
shall assume and agree to discharge in a timely fashion, all of Seller's
liabilities and obligations arising under the Contracts. Further, Buyer shall
agree to assume and discharge all obligations, whether arising by contract,
course of dealing or otherwise, to customers of the Business with respect to the
return of Products or credits for unsold merchandise. Buyer is expressly not
assuming any other obligations or liabilities, whether accrued, absolute,
contingent, matured, unmatured or other of Seller.
ARTICLE II
Consideration, Manner of Payment and Closing
2.1. Consideration. The purchase price consideration (the "PURCHASE
PRICE") for the Purchased Assets is as follows:
(a) $2,000,000 for the items listed in Sections 1.1(a), (d), (e) and
(h); plus
(b) $300,000 for Seller's Fixed Assets (as defined in Section 1.1(g);
plus
(c) 87.5 percent of the face value of all Accounts Receivable on the
Closing Date (the "RECEIVABLES VALUE"); plus
(d) An amount equal to the aggregate sum of the product of each of
the Agreed Values (as hereinafter defined) for the Primary Inventory
multiplied by the respective inventory count on the Closing Date (the
"PRIMARY INVENTORY VALUE"); plus
(e) An amount equal to 25% of the aggregate sum of the product of
each of the Agreed Values of the Secondary Inventory multiplied by the
respective inventory count on the Closing Date, provided that such purchase
price shall not exceed $50,000 (the "SECONDARY INVENTORY VALUE").
The Primary Inventory Value and Secondary Inventory Value are collectively
referred to as the "INVENTORY VALUES".
"Agreed Value" shall mean the final value assigned by the parties to each item
of Primary Inventory and Secondary Inventory as specified on Schedule 2.1, upon
completion of the procedures set forth in this paragraph:
(1) A preliminary version of Schedule 2.1 is attached to this
Agreement;
(2) Price Waterhouse LLP ("PW"), independent auditors, will determine
promptly the values of each item of Primary Inventory and Secondary
Inventory by: (i) the invoice price of each of the raw materials purchased
in their normal production quantities, (ii) the standard cost of each of
the finished goods and; (iii) the cost of each other inventory item;
(3) Seller shall be entitled to have representatives present while PW
is making its determination of such values and Seller shall assist PW in
the determination of the values of the Primary Inventory and the Secondary
Inventory;
(4) PW will provide its report to Buyer and Buyer will provide Seller
with a revised Schedule 2.1 based upon the report by PW (the "REVISED
SCHEDULE 2.1") within 10 business days of the execution of this Agreement;
(5) If Seller disputes any of the values on the Revised Schedule 2.1,
then Seller will have 10 business days from receipt of the Revised Schedule
2.1 to give written notice to Buyer, specifying those items on the Revised
Schedule 2.1 whose value Seller disputes; and
(6) Any non-disputed values on the Revised Schedule 2.1 shall become
final Agreed Values and any disputed values on which Seller and Buyer are
unable to agree shall be submitted to the Court for resolution.
Seller and Buyer agree that for purposes of Closing the: (i) the Receivables
Value shall be estimated at that aggregate amount set forth on Seller's Aged
Receivables Report attached hereto as Schedule 1.1(f)(i), less the Excluded
Accounts Receivable listed on Schedule 1.1(f)(ii), and shall be adjusted at
Closing as set forth in Section 2.3 below; (ii) the Inventory Values shall be
calculated from the final Agreed Values determined as set forth above and
adjusted at Closing as set forth in Section 2.3 below; and (iii) the Secondary
Inventory Value shall not exceed $200,000.
2.2. Payment of Consideration. At Closing, Buyer shall deliver to
Michigan National Bank, by wire transfer, (i) $4,370,000 for immediate credit
against Seller's account; plus (ii) $230,000 for deposit in escrow account with
Michigan National Bank and shall be subject to the adjustment provisions set
forth in Section 2.3 (the "ESCROW FUND").
2.3. Adjustment of Consideration.
(a) Within ten business days from the Closing Date, Seller shall
deliver to Buyer a report (the "PRELIMINARY REPORT") which shall list, as
of Closing, (i) the Accounts Receivable and the Receivables Value, and (ii)
the Inventory (based on a physical inventory thereof and prepared on an
item-by-item basis) and the Inventory Values (collectively, the
"PRELIMINARY VALUATION"). Buyer shall be entitled to be present during the
physical inventory. Seller shall also deliver to Buyer copies of any
supporting documentation used in the preparation of the Preliminary Report.
(b) Buyer shall have ten business days from the date of delivery of
the Preliminary Report (the "DISPUTE PERIOD") to determine whether Buyer
agrees with the Preliminary Valuation. In the event that Buyer does not
agree with the Preliminary Report, Buyer shall notify Seller within the
Dispute Period, specifying the basis for the disagreement (a "DISPUTE
NOTICE").
(i) If no Dispute Notice is given, Buyer shall be deemed to have
accepted the Preliminary Valuation.
(ii) If a Dispute Notice is given, the parties shall attempt to
resolve the matter. If they are unable to do so within five business
days after delivery of a Dispute Notice, the items in dispute shall be
promptly submitted to the Court, as defined below, for resolution.
(c) Upon final determination of the Receivables Value and the
Inventory Values (collectively, the "COMBINED VALUES"), Buyer shall pay to
Michigan National Bank, for immediate credit to Seller's account, the
amount by which the Combined Values exceeds the Estimated Value and the
Escrow Fund shall be credited to Seller's account, or the amount by which
the Estimated Value exceeds the Combined Values shall be refunded to Buyer
from the Escrow Fund. Any such payment shall be made within five days
after the Combined Values is determined either by the parties hereto or by
the Court. Such payment obligation shall bear interest at the rate of
eight percent (8%) per annum for the period from the Closing Date to the
date of such payment.
2.4. Allocation of Purchase Price. The Purchase Price shall be
allocated among the Purchased Assets in the manner required by Section 1060 of
the Internal Revenue Code of 1986, as amended, as shall be agreed prior to
Closing.
2.5. Closing. The transaction contemplated by this Agreement shall be
consummated (the "CLOSING") at 9:00 a.m., at 00 Xxxxx Xxxxx, Xxxxxx, Xxxxxxxxxx
00000 or such other place as Seller and Buyer mutually agree, on the date (the
CLOSING DATE") that is 10 days after approval of the United States Bankruptcy
Court for the District of Delaware, or such other court of competent
jurisdiction (the "COURT").
ARTICLE III
Representations and Warranties of Seller
Seller hereby represents and warrants to Buyer as of the date hereof
as follows:
3.1. Due Organization. Seller is a corporation validly existing and
in good standing under the laws of Nevada with full power and authority to carry
on the Business as it is now conducted.
3.2. Authority. Except for the consent of the Court, Seller has all
requisite power and authority, without the consent of any other person (except
those which have been obtained), to execute and deliver this Agreement and to
carry out the transactions contemplated hereby. All actions required to be
taken by Seller to permit the proper execution, delivery and performance of this
Agreement and all transactions contemplated hereby have been duly and properly
taken.
3.3. Valid and Binding Obligation.
(a) This Agreement has been duly executed and delivered and, subject
to the approval of the Court, constitutes the valid and legally binding
obligation of Seller, enforceable against Seller in accordance with its terms,
except as enforcement may be limited by applicable bankruptcy, reorganization,
insolvency, moratorium and other laws affecting creditors' rights generally and
by general equitable principles.
(b) The sale of the Purchased Assets:
(1) will not result in the creation of any lien or
encumbrance of any kind on the Purchased Assets; and
(2) is not prohibited by, does not violate or conflict with
any provision of, and does not constitute a default under or a breach
of:
(i) Seller's Articles of Incorporation or bylaws;
(ii) any contract, agreement or other instrument to which
Seller is a party or by which Seller or any of the Purchased Assets is
bound, except as to (A) Contracts for which a consent has been
obtained; and (B) those contracts, agreements or other instruments
whose conflicting provisions are not enforceable under Section 541(c)
of the Bankruptcy Code;
(iii) any order, writ, injunction, decree or judgment of a court
or governmental agency; or
(iv) any law, rule or regulation applicable to Seller.
Except as to Court approval, no approval, authorization, consent or other order
or action of or filing with any court, administrative agency or other
governmental authority is required for the execution and delivery by Seller of
this Agreement or the consummation by Seller of the transactions contemplated
hereby.
3.4. Purchased Assets. Seller is the sole legal and equitable owner
and has good and marketable title to all of the Purchased Assets, subject to a
lien in favor of Michigan National Bank. None of such Purchased Assets (other
than Inventory which may be subject to sales agreements with customers) are
subject to (i) any contract of lease, license or sale or restriction on use or
disposition (other than as provided by the Bankruptcy Code), or (ii) any
security interest, pledge, lien or encumbrance. Seller is not a party to any
agreement obligating it to pay royalties or
license fees to third parties other than sales commission arrangements.
3.5. Net Sales Information. The historical revenue data attached
hereto on Schedule 3.5 is true and accurate in all material respects.
3.6. Accounts Receivable. All accounts and notes receivable which
constitute Accounts Receivable represent actual claims for goods delivered in
the ordinary course of the Business of Seller and constitute valid and
enforceable claims. SELLER MAKES NO REPRESENTATION AS TO THE COLLECTABILITY OF
ANY ACCOUNT OR NOTE CONSTITUTING AN ACCOUNT RECEIVABLE AND DISCLAIMS ANY
LIABILITY WITH RESPECT TO THE COLLECTION OF THE ACCOUNTS RECEIVABLE.
3.7. Contracts. Seller has provided Buyer with copies of all
material Contracts, licenses and agreements to which Seller is a party.
3.8. Litigation. Schedule 3.8 lists all pending litigation to which
Seller is a party, all threatened litigation to which Seller may become a party
and written claims against Seller of which Seller is aware as of Closing.
3.9. Fixed Assets. Schedule 1.1(g) contains a complete listing of
those items constituting Fixed Assets which are individually valued in excess of
$1,000.
3.10. Environmental Matters. Except as set forth in Schedule 3.10,
the Seller hereby represents and warrants as of Closing that to the best of
Seller's knowledge: (i) the Seller has substantially complied with all
Environmental Laws with respect to Seller's operations and any transportation,
transfer, recycling, storage, use, treatment, manufacture of, or any other
activity involving Hazardous Materials or any product containing a Hazardous
Materials ("Hazardous Material Activities"); (ii) the Seller has not exposed any
person to a Hazardous Material in a manner which has caused an adverse health
effect to said person; (iii) no Hazardous Material is present in violation of
Environmental Laws at Seller's facilities, located at 84 and 00 Xxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxx (the "Facilities"); (iv) Seller holds all approvals, permits,
licenses, clearances or consents required to be obtained from any private person
or any governmental authority with respect to Seller's Hazardous Material
Activities as currently conducted ("Environmental Permits") and all such
Environmental Permits are valid, in full force and effect, and will survive
Closing without modification provided that the permits are by law transferrable
and Buyer complies with all requirements for transferring environmental permits
in full force and effect; and (v) no circumstances exist which will cause the
Permits to be revoked or otherwise invalidated after the closing provided that
the Permits are by law transferrable and Buyer complies with all requirements
for transferring environmental permits in full force and effect; (vi) Seller has
delivered to Buyer or made available for inspections by Buyer all records
concerning the Hazardous Material Activities and all environmental audits and
environmental assessments of the Facilities conducted at Seller's request.
For purposes of this Agreement, "Hazardous Material" or "Hazardous
Materials" means any material or substance that is now or hereafter prohibited
or regulated by any environmental law or that is now or hereafter designated by
any governmental authority to be radioactive, toxic or hazardous or otherwise a
danger to the environment; including, without limitation, (i) oil and petroleum
products, (ii) explosives, (iii) radioactive substances and materials, (iv)
hazardous, ultra-hazardous or toxic substances or wastes, (v) asbestos, (vi)
urea formaldehyde, (vii) polychlorinated biphenyls and transformers or other
equipment which contain fluid containing polychlorinated biphenyls, (viii) radon
gas, and (ix) all chemicals, materials or substances now or hereafter defined or
included in the definition of "hazardous substance", "hazardous waste",
"hazardous material", "toxic substance", "pollutant", or words of similar
impact, under any Law as now or hereafter amended, including, but not limited
to, the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 as now or hereafter amended ("CERCLA"), the Hazardous Materials
Transportation Act, the Resource Conservation Recovery Act, the Federal Water
Pollution Control Act, the Clean Air Act, the Montreal Protocol, the Xxxxxxxxx-
Xxxxxxx-Xxxxxx Hazardous Substance Account Act, the Xxxxxx-Cologne Water Quality
Control Act, and similar Laws, whether or not more strict in the application,
now or hereafter enacted. For purposes of this Agreement, "Environmental Laws"
means all laws, rules, regulations, guidelines, orders, treaties, statutes, and
codes promulgated by any governmental authority which prohibits, regulates or
controls any Hazardous Material or any Hazardous Material Activity.
ARTICLE IV
Representations and Warranties of Buyer
Buyer hereby represents and warrants to Seller as of the date hereof
as follows:
4.1. Due Organization. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of Delaware, and has full
power and authority to carry on the business in which it is engaged.
4.2. Authority. Buyer has all requisite power and authority, without
the consent of any other person (except those which have been obtained), to
execute and deliver this Agreement and to carry out the transactions
contemplated hereby. All actions required to be taken by Buyer to permit the
proper execution, delivery and performance of this Agreement and all
transactions contemplated hereby have been duly and properly taken.
4.3. Valid and Binding Obligation.
(a) This Agreement has been duly executed and delivered and
constitutes the valid and legally binding obligations of Buyer, enforceable
against Buyer in accordance with its terms, except as enforcement may be limited
by applicable bankruptcy, reorganization, insolvency, moratorium and other laws
affecting creditors' rights generally and by general equitable principles.
(b) No approval, authorization, consent or other order or action of
or filing with any court, administrative agency or other governmental authority
is required for the execution and delivery by Buyer of this Agreement or the
consummation by Buyer of the transaction contemplated hereby.
ARTICLE V
Additional Covenants and Agreements
5.1. Access to Records. Buyer shall acquire the books and records
relating to the Business (other than permanent records required for tax and
accounting purposes); provided, however, that each party shall have reasonable
access to the books and records retained by the other party and its agents or
affiliates.
5.2. Access to Employees. Buyer shall authorize and direct its
employees to provide such reasonable assistance to Seller following Closing as
is necessary for Seller to consummate the transactions contemplated by this
Agreement, including, but not limited to, Seller's final accounting.
ARTICLE VI
Conduct Prior to Closing
6.1. Seller's Obligations. The following are Seller's obligations
pending Closing:
(a) Seller shall give to Buyer's officers, employees, attorneys,
consultants, accountants and lenders reasonable access during normal
business hours to all of the properties, books, contracts, documents,
records and personnel of Seller and shall furnish to Buyer such information
as Buyer may at any time and from time to time reasonably request; and
(b) Seller shall use all reasonable efforts to conduct the Business
on a going concern basis.
6.2. Buyer's Obligations. The following are Buyer's obligations
pending Closing:
(a) Buyer shall continue to be bound by its obligations pursuant
to that certain Confidentiality Agreement by and between the parties
hereto.
6.3. Joint Obligations. The following shall apply with equal force to
Seller and Buyer:
(a) Seller and Buyer shall use all reasonable efforts to take,
or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable to consummate the transaction
contemplated hereby as soon as practicable, subject to Seller's
fiduciary duties, including duties as a debtor in possession.
(b) Each party shall promptly give the other party written
notice of the existence or occurrence of any condition which would
make any representation or warranty herein contained of either party
untrue or which might reasonably be expected to prevent the
consummation of the transaction contemplated hereby.
6.4. Bankruptcy Case. Promptly following the execution of the
Agreement, Seller shall file with the Court a voluntary petition under Chapter
11 of the Bankruptcy Code which shall commence a bankruptcy case (the
"BANKRUPTCY CASE"). Seller shall request the Court in the Bankruptcy Case to
approve Seller's assumption and performance of this Agreement.
ARTICLE VII
Conditions to Closing
7.1. Conditions to Seller's Obligations. The obligation of Seller to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Seller's option, be
terminated pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made by Buyer shall be
true and correct in all material respects as if originally made on and as of the
Closing Date;
(b) All obligations of Buyer to be performed hereunder through,
and including on, the Closing Date shall have been performed;
(c) Approval of this Agreement by the Court; and
(d) No suit, proceeding or investigation shall have been commenced by
any governmental authority or private person on any grounds to restrain,
enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby which is not disposed
of by the Order.
7.2. Conditions to Buyer's Obligations. The obligation of Buyer to
consummate the transaction contemplated hereby is subject to the fulfillment of
all of the following conditions on or prior to the Closing Date, upon the non-
fulfillment of any of which this Agreement may, at Buyer's option, be terminated
pursuant to and with the effect set forth in Article IX:
(a) Each and every representation and warranty made
by Seller shall be true and correct in all material respects
as if originally made on and as of the Closing Date;
(b) All obligations of Seller to be performed hereunder through,
and including on, the Closing Date shall have been performed;
(c) The Court shall have entered an order (the "ORDER") in the
Bankruptcy Case authorizing the purchase and sale of the Purchased
Assets under this Agreement, upon the terms and conditions set forth
in this Agreement, and otherwise free and clear of: (i) all liens,
title claims, encumbrances and security interests; (ii) all contracts,
agreements and employment agreements, other than the Contracts; and
(iii) all obligations and liabilities. The Order shall contain a
finding of fact that Buyer is making its purchase in good faith within
the meaning of Section 363(m) of the Bankruptcy Code. No stay of the
Order shall have been issued by the Court or any other court. As of
the Closing Date, the Order shall not have been modified, amended,
dissolved, revoked or rescinded in any way materially adverse to the
Buyer; and
(d) No suit, proceeding or investigation shall have been commenced by
any governmental authority or private person on any grounds to restrain,
enjoin or hinder, or to seek material damages on account of, the
consummation of the transaction contemplated hereby which is not disposed
of by the Order.
ARTICLE VIII
Closing
8.1. Form of Documents. At Closing, the parties shall deliver the
documents, and shall perform the acts, which are set forth in this Article VIII.
8.2. Buyer's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.2 of this Agreement, Buyer shall execute
and/or deliver to Seller all of the following:
(a) the Purchase Price;
(b) a certified copy of Buyer's Certificate of Incorporation and
By-laws;
(c) a certificate of good standing of Buyer, issued not earlier than
ten days prior to the Closing Date by the Secretary of State of Delaware;
(d) an incumbency and specimen signature certificate with respect to
the officers of Buyer executing this Agreement and all agreements
contemplated hereby and on behalf of Buyer;
(e) an agreement of assumption of all liabilities and obligations to
be assumed by Buyer as provided herein, in a form reasonably acceptable to
all parties;
(f) a certified copy of resolutions of Buyer's board of
directors, authorizing the execution, delivery and performance of this
Agreement and all agreements contemplated hereby; and
(g) a closing certificate executed by Buyer, pursuant to which
Buyer represents and warrants to Seller that Buyer's representations
and warranties to Seller are true and correct in all material respects
as of the Closing Date as if then originally made, that all covenants
required by the terms hereof to be performed by Buyer on or before the
Closing Date, to the extent not waived by Seller in writing, have been
so performed, and that all documents to be executed and delivered by
Buyer at Closing have been executed by duly authorized officers of
Buyer.
8.3. Seller's Deliveries. Subject to the fulfillment or waiver of the
conditions set forth in Section 7.1 hereof, Seller shall deliver to Buyer
physical possession of all tangible Purchased Assets, and shall execute and/or
deliver or cause to be executed and/or delivered to Buyer all of the following:
(a) certified copies of Seller's Articles of Incorporation and
Bylaws;
(b) certificates of good standing of Seller, issued not earlier
than ten days prior to the Closing Date by the Secretary of State of
Nevada;
(c) an incumbency and specimen signature certificate with respect to
the officers of Seller executing this Agreement and all documents
contemplated hereby;
(d) a certified copy of resolutions of Seller's board of directors
and stockholders, authorizing the execution, delivery and performance of
this Agreement and all documents contemplated hereby;
(e) a xxxx of sale, executed by Seller, conveying all of the
Purchased Assets to Buyer, in a form reasonably acceptable to all parties;
(f) a closing certificate duly executed by Seller, pursuant to which
Seller represents and warrants to Buyer that Seller's representations and
warranties to Buyer are true and correct in all material respects as of the
Closing Date as if then originally made, that all covenants required by the
terms hereof to be performed by Seller on or before the Closing Date, to
the extent not waived by Buyer in writing, have been so performed, and that
all documents to be executed and delivered by Seller at Closing have been
executed by duly authorized officers of Seller;
(g) a certified copy of the Order;
(h) an amendment to Seller's Articles of Incorporation whereby Seller
changes its name to a name that is not similar to "Carme, Inc.";
(i) trademark assignments for all trademarks constituting a part of
the Purchased Assets, in a form suitable for recording and reasonably
acceptable to all parties; and
(j) an index of all trade secrets and computer files containing
said trade secrets.
ARTICLE IX
Termination
9.1. Right to Terminate. This Agreement and the transaction contemplated
hereby may be terminated by either of the parties to this Agreement if the Court
shall not have issued the Order at or before August 31, 1995; provided, however,
that the right to terminate this Agreement under this Section 9.1 shall not be
available to any party whose failure to fulfill any material obligation under
this Agreement has been the cause of or resulted in the failure of Closing to
occur.
9.2. Certain Effects of Termination. In the event of the termination of
this Agreement by either Seller or Buyer as provided in Section 9.1, each party,
if so requested by the other party, will promptly return every document
furnished to it by the other party (or its subsidiary, division, associate or
affiliate) in connection with the transaction contemplated hereby, whether so
obtained before or after the execution of this Agreement, and any copies thereof
(except for copies of documents publicly available) which may have been made,
and will use reasonable efforts to cause its representatives and any
representatives of financial institutions and others to whom such documents were
furnished to promptly return such documents and any copies thereof.
This Section 9.2 shall survive any termination of this Agreement.
9.3. Reimbursement of Expenses. If this Agreement has not been terminated
pursuant to Section 9.1 or there is a failure of a material condition and the
Purchased Assets are sold to another buyer, Buyer shall be paid from the initial
proceeds of such sale an amount equal to the fees and expenses expended by Buyer
in connection with the negotiation and performance of this Agreement (including
without limitation, all accounting and legal fees), but such amount shall not
exceed $100,000. Buyer and Seller agree that this is reasonable, considering
all of the circumstances existing on the date of this Agreement.
ARTICLE X
Miscellaneous
10.1. Expenses; Taxes. Buyer and Seller shall each bear their own
respective expenses incurred in connection with this Agreement and in connection
with all obligations required to be performed by each of them under this
Agreement. Buyer shall pay all sales, use and transfer taxes with respect to
the transfer of the Purchased Assets.
10.2. Publicity. Neither Buyer nor Seller shall issue any press
release or public announcement of any kind concerning the transactions
contemplated by this Agreement without the prior written consent of the other
party, except with respect to disclosures which either party is advised by
counsel are appropriate under applicable laws, and as to which each party will
consult with the other.
10.3. Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be delivered in person or
sent by registered or certified mail, postage prepaid, commercial overnight
courier (such as Express Mail, Federal Express, etc.) with written verification
of receipt or by telecopy. A notice shall be deemed given: (a) when delivered
by personal delivery (as evidenced by the receipt); (b) five days after deposit
in the mail if sent by registered or certified mail; (c) one (1) day after
having been sent by commercial overnight courier as evidenced by the written
verification of receipt; or (d) on the date of confirmation if telecopied.
(a) If to Buyer:
Carme International, Inc.
00 Xxxxxx Xxxxxx
Xxxxxx XX000XX
Attention: Xxxx X. Xxxxx
Telecopy: 011-44-171-828-8081
With a copy to:
Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx, Xx., Esq.
Telecopy: (000) 000-0000
(b) If to Seller:
c/o International Research and
Development Corporation
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
With a copy to:
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Either party may change its address for receiving notice by written notice given
to the other party.
10.4. Benefit and Assignment. All of the terms and provisions of
this Agreement shall bind and benefit, and be enforceable by, the successors and
assigns of the parties hereto.
10.5. Entire Agreement. This Agreement constitutes the entire
agreement between the parties relating to the subject matter hereof and
supersedes any previous written or oral agreements or understandings in
connection therewith.
10.6. Severability. If any term, provision, covenant or condition
of this Agreement is held by a court of competent jurisdiction to be invalid,
void, or unenforceable, the remainder of the provisions hereof shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
10.7. 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.
10.8. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.9. Governing Law. This Agreement is made pursuant to, and
shall be governed by, the internal substantive laws of the State of Delaware.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to
be executed on its behalf all as of the date first written above.
CARME INTERNATIONAL, INC.
By: /s/ Xxxxxx Xxxxx
Name: XXXXXX XXXXX
Title: PRESIDENT & CEO
CARME, INC.
By: /s/ Xxxxxxx X. Xxxxx
Chairman of the Board
and
Chief Executive Officer
