Exhibit 10.3
ASSET PURCHASE AGREEMENT
This AGREEMENT dated this ___ day of October, 1999, by and between Showcase
Technologies, LLC (owned by Xxxx Xxxxxxxxx only), having its principal place of
business at 00 Xxxx Xxxxxxx Xx., 0xx Xxxxx, Xxxxx 0, Xxxxxx Xxxxxx, XX 00000
(hereafter "Show"), and DoubleCase Corporation, a Kansas Corporation having its
principal place of business at 0000 Xxxxx Xx., Xxxxx 000, Xxxxxxxx Xxxxxxx,
Xxxxxxxx 00000 (hereafter "DoubleCase").
WHEREAS, SHOW is desirous of selling all its assets to DoubleCase.
WHEREAS, DoubleCase is desirous of acquiring all, or substantially all, of
the assets of the SHOW;
IT IS HEREFORE AGREED that in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto
agree as follows:
1. Exchange of Assets.
1.1 Subject to the terms and conditions of this Agreement and the
performance by the parties hereto of their respective obligations hereunder,
SHOW shall exchange, transfer, convey, assign and deliver to DoubleCase, and
DoubleCase shall receive, acquire and accept on the Closing Date (as such term
is hereinafter defined) all of the rights, title and interest of SHOW in and to
the business, assets, goodwill, and rights of SHOW in all or substantially all
of its assets, including customer lists, inventory, as specified in the list of
Assets attached hereto as Exhibit I (the "Assets & Allocation"), as the same
shall exist on the Closing Date, including, without limitation, rights in
tradenames, trademarks and copyrights, patent and patent pendings, all rights
relating to or arising out of the business conducted by SHOW under express or
implied warranty (as from the suppliers of SHOW with respect to the Assets being
transferred to DoubleCase) , all books and records, correspondence and files of
or relating to the business or Assets of SHOW being exchanged with DoubleCase
and all of SHOW's rights, title and interest in and to each, contract,
agreement, purchase order or commitment to which SHOW is a party or in which
SHOW has rights (all of such assets are collectively referred to hereinafter as
the "Assets"), free and clear of all liabilities, obligations, liens and
encumbrances, except as expressly assumed by DoubleCase under Section 2 below.
1.2 The transfer of the Assets as herein provided shall be effected by
bills of sale, endorsements, assignments, drafts, checks, deeds and other
instruments of transfer and conveyance delivered to DoubleCase on the Closing
Date in form sufficient to transfer the Assets as contemplated by this Agreement
and as shall be reasonably requested by DoubleCase. SHOW covenants that (i) it
will, at any time and from time to time after the Closing Date, execute and
deliver such other instruments of transfer and conveyance and do all such
further acts and things as may be reasonably requested by DoubleCase to transfer
and deliver to DoubleCase or to aid and assist DoubleCase in collecting and
reducing to possession, any and all of the Assets; (ii) DoubleCase, after the
Closing Date, shall have the right and authority to collect, for the account of
DoubleCase, all checks, notes and other evidences of indebtedness or obligations
to make payment of money and other items which shall be transferred to
DoubleCase as provided and to endorse with the name of DoubleCase any such
checks, notes or other instruments received after the Closing Date; and (iii)
SHOW will transfer and deliver to DoubleCase all other property that SHOW may
receive after the Closing Date in respect of or arising out of the business
conducted by SHOW.
1.3 SHOW covenants that between the date hereof and the Closing Date and,
if reasonably requested by DoubleCase, after the Closing Date, SHOW shall use
its best efforts to obtain the consent of any parties to any contracts,
licenses, leases, commitments, sales orders, purchase orders or other agreements
being assigned by SHOW to DoubleCase hereunder as shall be reasonable requested
by DoubleCase. If any such required consent is not obtained, this Agreement
shall constitute an agreement to assign the instrument relating thereto to
DoubleCase.
2. Assumption of Liabilities. DoubleCase shall assume no liabilities of
SHOW.
3. Closing. The Closing hereunder (the "Closing") shall take place on the
___ day of October, 1999 at _________________________ or at such other time and
place as may be agreed by DoubleCase and SHOW (the "Closing Date").
4. Exchange Terms; Allocation.
4.1 In consideration of the exchange and transfer of the Assets herein
contemplated, on the Closing Date, DoubleCase shall deliver at Closing:
a) $80,000 promissory note, plus the total value of SHOW liabilities
not to exceed $35,000; Terms of the $80,000 Promissory note as follows: -
6% annual interest - Payment Schedule - 15% of gross revenue (less
discounts and returns) Pd the 15th of month following - Unpaid principal
and interest shall become due and payable on the one anniversy
b) 266,667 shares of Banyan Corporation common stock valued at
$200,000 per the closing market price three days before closing, In no
event shall the Banyan common stock be valued less than $0.75 per share.
Said shares shall be issued exempt from registration under Rule 144.
5. Representations and Warranties of SHOW. SHOW hereby represents and
warrants as follows:
5.1 SHOW is a corporation duly organized, validly existing and in good
standing under the laws of New York and has full power and authority to own its
properties and carry on its business as and in the places where such properties
are now owned or such business is now being conducted. On or before closing SHOW
shall establish to the satisfaction of DoubleCase that it has title to the
Assets and authority to convey the same in accordance with the terms of this
Agreement. SHOW has taken no action and has not failed to take any action, which
action or failure would preclude or prevent DoubleCase from conducting the
business of SHOW in the manner heretofore conducted.
5.2 SHOW has no subsidiaries,
5.3 SHOW has obtained written approval of over two-thirds of its
stockholders and is fully empowered by them to enter into this transaction.
5.4 SHOW has full power and authority, corporate and otherwise, to enter
into this Agreement on behalf of the SHOW and to cause the SHOW to assume and
perform its, his or her obligations hereunder. The execution and delivery of
this Agreement and the performance by SHOW of its obligations hereunder have
been duly authorized by the Board of Directors of SHOW and no further action or
approval, corporate or otherwise, is required in order to constitute this
Agreement as a binding and enforceable obligation of SHOW. The execution and
delivery of this Agreement and the performance by SHOW of its obligations
hereunder do not and will not violate any provision of the Certificate of
Incorporation or By-Laws of SHOW and do not and will not conflict with or result
in any breach of any condition or provision of, or constitute a default under,
or result in the creation or imposition of any lien, charge or encumbrance upon
any of the Assets by reason of the terms of any contract, mortgage, lien, lease,
agreement indenture, instrument, judgment or decree to which SHOW is a party or
which is or purports to be binding upon SHOW or which affects or purports to
affect any of the Assets.
5.4 No action, approval, consent or authorization, including but not
limited to any action, approval, consent or authorization by any governmental or
quasi-governmental agency, commission, board, bureau or instrumentality is
necessary as to SHOW in order to constitute this agreement as a binding and
enforceable obligation of SHOW in accordance with its terms.
5.5 SHOW has not incurred any obligation or liability (absolute or
contingent, liquidated or unliquidated, xxxxxx or inchoate) except current
obligations and liabilities incurred in the ordinary course of their businesses
which would act as a lien against the Assets.
5.6 SHOW has not leased or effected any transfer of any of the Assets.
6. Representations and Warranties of DoubleCase. DoubleCase hereby
represents and warrants that on the closing date all of the following will be
true:
6.1 DoubleCase is a corporation duly organized, validly existing and in
good standing under the laws of the state of Kansas
6.2 DoubleCase is a wholly owned subsidiary of Banyan Corporation.
7. Miscellaneous.
a) This Agreement shall constitute the entire agreement of the parties
hereto and may not be amended, except by written consent of the parties
hereto in writing executed by them.
b) This Agreement shall be construed according to the laws of the
State of Colorado and shall be enforceable in any court of competent
jurisdiction located in the State of Colorado.
c) This Agreement shall inure to the benefit of the parties and their
successors in interest, if any, but shall not otherwise be assignable.
d) Where in this Agreement one gender or the other is used, of the
singular or the plural is used, and if to effect the intent of the parties
hereto the use of the other gender or number is needed then it is
understood that such gender or both or such number or both is implied.
e) This Agreement may be executed in counterparts and receipt of
facsimile transmission of signatures shall be sufficient to effect
acceptance of this Agreement, although the parties hereto agree to submit
within a reasonable time duplicate original signed copies of this Agreement
to each other.
8. Indemnification.
Each party to this Agreement shall indemnify and hold harmless each other
party at all times after the date of closing against and in respect of any
liability, damage or deficiency, all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses, including attorney's fees incident
to any of the foregoing, resulting from any misrepresentation, breach of
covenant or warranty for non-fulfillment of any agreement on the part of such
party under this Agreement, or from any misrepresentation in or omission from
any certificate furnished or to be furnished to a party hereunder. Subject to
the terms of this Agreement, the defaulting party shall reimburse the other
party or parties on demand for any reasonable payments made by said parties at
any time after the date of closing, in respect to any liability or claim to
which the foregoing indemnity relates, if such payment is made after reasonable
notice to the other party to defend or satisfy the same, and such party failed
to defend or satisfy the same.
9. Expenses. Each party shall pay its own expenses.
10. Brokers. DoubleCase shall not be liable for the payment of any finder's
or consultant's.
IN WITNESS WHEREOF THE PARTIES HERETO, CORPORATE PARTIES HAVING BEEN DULY
AUTHORIZED BY THEIR RESPECTIVE BOARDS OF DIRECTORS, HAVE SET THEIR HANDS AND
SEALS ON THE DATE FIRST ABOVE WRITTEN.
DOUBLECASE CORPORATION SHOWCASE TECHNOLOGIES, LLC
BY:/s/XXXXXXX XXXX BY: /s/XXXX XXXXXXXXX
XXXXXXX XXXX XXXX XXXXXXXXX
PRESIDENT PRESIDENT
BULK XXXX OF SALE
Pursuant to the Asset Purchase Agreement dated the ___ day of October, 1999,
(hereafter "APA") by and between Showcase Technologies, LLC, owned by Xxxx
Xxxxxxxxx, and DoubleCase Corporation, a Kansas Corporation and a wholly owned
subsidiary of Banyan Corporation, this Bulk Xxxx of Sale hereby confirms and
perfects the transfer of assets provided by the "APA".
Upon receipt of 266,667 shares of Banyan Corporation common stock (pursuant to
paragraph 4.1(b) of the "APA") all of the Assets as contemplated in Paragraph 1
and elsewhere in the "APA" are hereby transferred, assigned and conveyed from
Showcase Technologies, LLC to DoubleCase Corporation.
Receipt of a Promissory Note in the amount of $80,000, pursuant to paragraph 4.1
(a) of the "APA" is hereby acknowledged.
DoubleCase Corporation Showcase Technologies, LLC
BY: /S/ XXXXXXX XXXX BY:/S/ XXXX XXXXXXXXX
XXXXXXX XXXX XXXX XXXXXXXXX
President Owner and President
Date: Date:
