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Exhibit 10.23
ASSET PURCHASE AGREEMENT ENTERED INTO BY AND BETWEEN XXXXXX ASSOCIATES, LTD.
(HEREINAFTER REFERRED TO AS "Seller"), PARTY OF THE FIRST PART, AND X'XXXX-XXXX
& XXXXXXXXXX ARMORING COMPANY (HEREINAFTER REFERRED TO AS THE "Buyer"), PARTY OF
THE SECOND PART, PURSUANT TO THE FOLLOWING REPRESENTATIONS AND CLAUSES:
R E P R E S E N T A T I O N S
I. SELLER HEREBY REPRESENTS:
A. That Seller is an international business company duly organized and validly
existing under the laws of the Bahamas
B. That Seller is the owner of certain data bases described on EXHIBIT "1"
hereto, which data bases (the "Data Bases") were acquired from its affiliate
Xxxxxx Associates, S.C., of Mexico.
C. That Seller is also the owner of a client list as set forth in EXHIBIT "2"
attached hereto (the "Client List").
D. That Seller wishes to sell the Data Bases and Client List to Buyer pursuant
to the terms herein contained, as its shareholders have agreed to such sale.
II. BUYER HEREBY REPRESENTS:
A. A. That it is a company duly organized and validly existing under Delaware
Law.
B. That it wishes to acquire the Data Base and Client List according to the
terms and conditions hereof.
IN VIEW OF THE ABOVE, the parties agree as follows:
C L A U S E S:
SECTION 1. Seller hereby sells to Buyer, and Buyer hereby purchases from Seller,
the Data Bases and Client List.
SECTION 2. Seller transfers the Data Bases and Client List free of any charge
and encumbrance and without limitation as to title thereto. The Seller
undertakes a covenant of title and guarantees any obligation assumed hereunder
during a 5 (five) year term counted from the date of execution hereof.
Seller represents that the information on the Data Bases are accurate and can be
used as described on EXHIBIT "1".
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SECTION 3.
A. In consideration for the transfer of the Data Bases and Client List, the
Buyer shall pay Seller the amount of Nine Hundred Fifty Thousand Dollars in
United States currency ($ 950,000.00) as follows:
i- by check in the amount of $ 450,000.00 that Buyer shall
deliver to Seller on a date (the "Closing Date") within three
days of the initial public offering of Buyer's affiliate, The
O'Gara Company, in the United States;
ii- by a promissory note in the face amount of $500,000.00
delivered on the Closing Date, payable as set forth on
EXHIBIT "3".
B. On or before the Closing, Seller shall deliver to Buyer any and all invoices
and documentation evidencing title to the Assets.
SECTION 4. Seller hereby agrees to indemnify and hold Buyer harmless from and
against: a) any of Seller's liabilities not expressly assumed hereby in Buyer,
including any claims by Associate's shareholders, and b) any losses, damages,
charges, claims, expenses, liabilities or obligations, including but not limited
to attorney's fees and legal expenses arising from Seller's failure to comply
with any representation made or obligation assumed hereunder.
SECTION 5. REPRESENTATIONS OF SELLER.
Seller represents as follows, intending that Buyer may rely on the same in
consummating the transactions herein contemplated:
A. Seller is a corporation duly organized, validly existing and in good standing
under the laws of the Bahamas with full power to own, lease and operate its
properties and assets to engage in its business as presently conducted; the sale
of the Data Bases and Client List by Seller has been duly authorized and
approved, together with the performance of all of its obligations hereunder, and
execution of any other instruments necessary to consummate the transactions
contemplated hereby.
B. Seller is the absolute owner of the Data Bases and Client List, free and
clear of all liens or encumbrances.
C. All taxes and assessments which Seller is required by law to pay, withhold or
collect have been and will be duly withheld, collected and paid to the proper
governmental authorities.
D. No dispute or controversy concerning the terms and conditions of employment
exists with any employee or contractor of Seller.
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E. No litigation or adverse claim of any nature is pending against Seller, and
none has been threatened, including, without limitation, any investigation,
proceedings or audit by any governmental agency.
F. No statement contained herein or in any document or furnished or to be
furnished by Seller to Buyer pursuant to or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement or omission
of any material fact necessary in order to make the statement therein not
misleading.
SECTION 6. REPRESENTATIONS OF BUYER.
Buyer represents as follows:
A. The execution, delivery and performance of this Agreement has been duly
authorized by all necessary corporate action of Buyer.
B. This Agreement constitutes the legal, valid and binding obligation of Buyer,
enforceable in accordance with its terms (subject to bankruptcy and other laws
affecting the rights of creditors generally);
SECTION 7. SURVIVAL OF REPRESENTATIONS.
The above stated representations by Buyer and Seller shall survive the date
hereof and continue in full force and effect after the consummation of the
transactions contemplated by this Agreement.
SECTION 8. All notices to be given hereunder shall be given in writing and
delivered in an unquestionable manner at the addresses of the parties mentioned
in the Representations hereof.
SECTION 9. For the interpretation of and compliance with this agreement, the
parties expressly submit to the jurisdiction of the courts of Xxxxxxxx County,
Ohio, USA, hereby waiving any other jurisdiction that may correspond to them by
reason of their present or future domiciles.
SECTION 10. SUPPLEMENTAL DELIVERIES OF INSTRUMENTS.
At the request of Buyer, Seller shall hereafter execute and deliver to Buyer
supplementary instruments of transfer or assignment or such other documents as
may be necessary or desirable to consummate the transactions contemplated
herein.
SECTION 12. LIABILITIES; INDEMNIFICATION.
A. The parties agree that all claims presented to Buyer by customers on account
of services performed by Seller prior to the
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date hereof shall be referred to Seller for settlement; Seller shall be
responsible and pay for any settlement therefor.
B. Buyer shall not assume any liabilities of any nature or any kind whatsoever.
C. Seller shall indemnify, defend and hold Buyer and its affiliates harmless
from (a) all liabilities of Seller not expressly assumed by Buyer hereunder,
including any claims made by the other shareholders of Seller and (b) any and
all losses, damages, charges, claims, expense, liabilities, indebtedness or
obligations, including, without limitation, attorneys' fees and court costs, as
a result of any breach by Seller of any of the representations made in or
obligations assumed under this Agreement or in any of the transactions
contemplated hereunder.
SECTION 13. BINDING AGREEMENT.
A. This Agreement shall be binding upon and inure to the benefit of the parties
their respective heirs, executors, administrators and assigns. The foregoing
notwithstanding, no party shall assign his or its rights or delegate its duties
hereunder.
B. In the event that any section or clause of this Agreement is held or declared
to be void or illegal for any reason, the offending section or clause shall be
stricken and all other sections or clauses of this Agreement shall nevertheless
remain in full force and effect.
All notices and communications hereunder shall be in writing and sent by fax,
courier, express mail service or otherwise delivered in an unquestionable
manner, addressed as follows:
To Buyer: X'Xxxx-Xxxx & Xxxxxxxxxx Armoring
Company
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxx 00000
With a copy to: Xxxx, Stettinius & Hollister
0000 Xxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000 XXX
Attn: Xxxx X. Wales, Esq.
To Seller: Xxxxxx X. Xxxxxx
% Xxxxxx Associates, S.C.
Polo Santo 00-0, Xxxxx Xxxxx
Xxxxxxxxxx Xxxxxx Xxxxxxx
00000 Xxxxxx, D.F., Mexico
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SECTION 14. GOVERNING LAW.
This Agreement is of a commercial nature and for any dispute the parties agree
that the laws of the State of Ohio, U.S.A. shall apply.
B. The parties expressly waive any other jurisdiction to which they may be
entitled by virtue of their present domicile or otherwise.
THIS AGREEMENT is executed this October 29, 1996.
THE "SELLER" THE "BUYER"
X'XXXX-XXXX & XXXXXXXXXX
ARMORING COMPANY
By:/s/ Xxxxxx X. Xxxxxx By:/s/ Xxxxxxxx X. Xxxxxxxxxx
-------------------------- -------------------------------
Xx. Xxxxxx X. Xxxxxx Xxxxxxxx X. Xxxxxxxxxx
Executive Vice President
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxxx
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Exhibit "1"
DATA BASES
1. KIDNAP (for xxxxxx) data bases from January 1993 to present. We have roughly
1,200 names in this data base.
These have 7 fields: full name
age/sex
State of the Republic
date of capture-date of release
Amount Demanded - amount paid
Status (releases unharmed, killed)
Comments on circumstances
(such as captures on open road;
taken out of their home or office;
e.g. kidnapper modus operandi)
To the best of our knowledge, this is the only such data base on Mexican
kidnaps. The possession of this data base enables us, iter alia, to counsel
clients on kidnap profile, kidnapper modus operandi and how to avoid kidnap.
The immediate applicability to O-H&E is this information enabled us to press for
an ability to armor pick-up trucks - since the majority of kidnaps in Mexico are
occurring on the open road while the victims (ranchers and farmers) are en route
to their farms. Additionally, these same persons are natural buyers for the
ComSat capabilities that O-H&E is selling through O'Gara Satellite Services.
2. Truck Driver Hijackings
A. These have 7 fields with roughly 1,800 names of hijacked drivers. The point
is that a majority of hijacks have driver complicity. We were also looking for
same driver involvement in multiple incidents. This information has enabled us
to brief clients and to built toward an overall "secure trucking" program.
date of hijack
full name of driver
date of birth (when available)
location of hijack
name of transportation company
product identification
comments on modus operandi and or
possible driver complicity.
B. These have only 4 fields with roughly 300 names of individuals arrested for
cargo truck hijacking - as a natural meld with the foregoing.
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full name
date of birth
date of arrest
any details
With the addition of QUALCOM and/or other O-H&E technical competence, we should
be able to make expanded use of this capability. Our ambition is to dramatically
expand this data base with cooperation from various local and international
insurance companies. We are in the throes of a major project with AETNA's joint
venture partner (Seguros Monterrey/Aetna) based largely on the information that
we were able to pull out of these data bases.
3. BOARD OF DIRECTORS OF MEXICO'S PUBLICLY HELD COMPANIES:
The Mexican Stock Exchange (BMV) produces a tome each year - listing all of the
publicly held companies. The companies are not listed in alphabetical order and
this large (1,400 pages) book is very difficult to use. Each listing contains
some economic information (Believe it at your peril!) and also contains a list
of the boards of directors of each company. Some pages have as many as twelve
companies on each page.
Since no one in Mexico has bothered to retrieve, much less sort) the names, we
did. This data base has 4 fields, as follows:
full names
name of company
page in the BMV book
Chairmen of the Board are in CAPS
We find this data base invaluable as we begin reputational due diligence
research projects - to see which if any boards the individual is on and to see
who else is on the same boards and other forms of inter-relationships.
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Exhibit "2"
CLIENT LIST
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Exhibit "3"
$ 500,000.00 November __, 1996
Cincinnati, Ohio
PROMISSORY NOTE
---------------
For value received, X'XXXX-XXXX & XXXXXXXXXX ARMORING COMPANY, a
Delaware corporation, whose address is 0000 XxXxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000
("Debtor"), promises to pay to the order of XXXXXX ASSOCIATES, LTD, a Bahamian
corporation ("Payee"), whose address is ________, or at such other place as
Payee may from time to time designate in writing, the principal sum of Five
Hundred Thousand Dollars ($500,000.00), payable in two annual principal
installments, of Two Hundred Fifty Thousand Dollars ($250,000.00) each, on
December 31, 1997 and 1998, plus interest at seven percent (7%), also paid
annually.
Failure of Debtor to make payment within thirty (30) days of the date
on which any installment is due as more particularly set forth above shall be
deemed to be an event of default. On the occurrence of an event of default,
Payee may declare the entire amount due hereunder immediately due and payable,
and the interest rate hereunder shall be increased from and after such default
to ten percent (10%).
This Note has been delivered by Debtor pursuant to the terms and
provisions of an Asset Purchase Agreement entered into this date, by which Payee
transferred to Debtor, for this and other valuable consideration, certain assets
described therein.
This Note and any installment payment due hereunder may be prepaid at
any time without charge or penalty, provided that any prepayment shall be
applied against the last installment(s) due. This note shall be binding upon
Debtor and Debtor's legal representatives, successors and assigns.
This Note shall be governed by the laws of the State of Ohio and may
not be changed or terminated orally.
Witnessed by: X'XXXX-XXXX & XXXXXXXXXX
ARMORING COMPANY
By:
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