EXHIBIT 2.5
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") is made and entered into as of
the 4th day of March, 2002, by and among DESIENCE CORPORATION, a corporation
organized and existing under the laws of the State of California (the "SELLER")
and XXXX XXXXXXX CORP., a corporation organized and existing under the laws of
the State of California (the "PURCHASER").
WHEREAS, the Seller designs and distributes state-of-the-art, modular,
electronic workstation enclosure systems (the "BUSINESS"); and
WHEREAS, subject to the terms and conditions contained herein, the
Seller desires to sell, transfer, convey and assign to the Purchaser, and the
Purchaser desires to purchase, acquire and assume certain assets and some of the
liabilities of the Seller, in accordance with this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, and of the
mutual promises, covenants, representations and warranties herein contained, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties, intending to be legally bound, hereby
agree as follows:
Section 1. ACQUISITION OF ASSETS AND ASSUMPTION OF LIABILITIES.
1.01 ACQUIRED ASSETS. Subject to the terms and conditions set forth herein,
the Seller agrees to sell, transfer, assign and deliver to the
Purchaser, and the Purchaser agrees to purchase or accept from the
Seller, all of the assets and properties of the Seller used or useful
in the conduct of the Business as currently conducted (other than the
Excluded Assets, as defined in Section 1.05 hereof), wherever located,
including without limitation the following (collectively, the "ACQUIRED
ASSETS"):
(a) TANGIBLE ASSETS. All of the items of tangible property owned
by the Seller at the Closing (as such term is hereinafter
defined), whether real, personal or mixed, including without
limitation the specific tangible assets set forth on SCHEDULE
1.01(a) attached hereto;
(b) MATERIALS AND SUPPLIES. All materials and supplies of any kind
owned by the Seller at the Closing, whether or not such
materials and supplies are specifically set forth on SCHEDULE
1.01(a) attached hereto;
(c) CONTRACT RIGHTS. All GSA contract rights, to the extent
transferable by the Seller, documents, instruments, and other
general intangibles inuring to or for the benefit of the
Seller as of the Closing Date, other than those set forth as
Excluded Assets, as defined in Section 1.04 hereof;
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(d) PROMOTIONAL RIGHTS. All (i) trademarks, service marks, logos,
copyrights, "d/b/a's" and trade names, whether or not the same
have been registered federally or with any state or municipal
office, and all applications for or registrations of any of
the foregoing, marketing or promotional designs, brochures,
advertisements, concepts, literature, website content, the
domain name "xxxxxxxx.xxx", the toll-free "800" number
(800-457-1092), rights against other persons in respect of any
of the foregoing and any other promotional items including,
without limitation, all of the Seller's rights and interests
in and to the name DESIENCE CORPORATION, and any derivations
thereof; and (ii) formulas, recipes, know-how, trade secrets,
processes, designs, licenses, pricing policies, customer lists
or profiles, information as to the identities or requirements
of existing customers or potential customers or vendors,
market information, market analyses, marketing plans and all
other proprietary rights (collectively, the "PROPRIETARY
RIGHTS") used or useful or developed or acquired for use in
the Business and owned, licensed or otherwise in the
possession of the Seller as of the Closing Date; and
(e) BOOKS AND RECORDS. All papers and records (whether in written
or other form) of any kind presently in or hereafter coming
into the care, custody or control of the Seller (including,
without limitation, any such papers or records held by others
on behalf of the Seller) relating to any of the Acquired
Assets, to the Business, or to the past, present or future
operation thereof including, but not limited to, purchase and
sales records, computer programs, software packages, computer
printouts, business and financial reports and records, manuals
and forms, personnel and labor relations records,
environmental control records, accounting and management
manuals, business stationary, blank forms, and any papers and
records relating to any of the Seller's Proprietary Rights.
1.02 PURCHASE PRICE; CLOSING.
(a) PURCHASE PRICE. In consideration of the sale, conveyance and
transfer of the Acquired Assets and the representations,
warranties and covenants set forth herein and in the other
documents and instruments delivered or to be delivered at or
prior to the Closing pursuant hereto (collectively, the
"CLOSING DOCUMENTS"), the Purchaser agrees as follows:
(i) to pay to the Seller in immediately available funds
the sum of Fifty Thousand Dollars ($50,000) (the
"INITIAL PAYMENT") upon the time of execution of this
Agreement (the "CLOSING");
(ii) to deliver to the Seller not later than the fifth
(5th) day of each month, commencing with the month of
April 2002, a monthly payment equal to Twenty Five
Thousand Dollars ($25,000) (the "MONTHLY PAYMENT"),
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for each consecutive month until eight (8) Monthly
Payments have been delivered to the Seller. The eight
(8) Monthly Payments of Twenty Five Thousand Dollars
($25,000) each equal an aggregate amount of Two
Hundred Thousand Dollars ($200,000), and together
with the Initial Payment, constitute the purchase
price for the Acquired Assets of Two Hundred Fifty
Thousand Dollars ($250,000) (the "PURCHASE PRICE");
(iii) upon the closing of and the full collection by the
Purchaser on the pending sales transaction with the
U.S. Central Intelligence Agency (the "CIA SALE"), if
the CIA Sale closes before the end of calendar year
2002 for not less than Seven Hundred Thousand Dollars
($700,000), the Purchaser shall pay to the Seller in
immediately available funds the sum of One Hundred
Thousand Dollars ($100,000), and if the CIA Sale
closes before the end of calendar year 2002 for less
than Seven Hundred Thousand Dollars ($700,000) but
not less than Three Hundred Fifty Thousand Dollars
($350,000), the Purchaser shall pay to the Seller in
immediately available funds the sum of Fifty Thousand
Dollars ($50,000), although the parties acknowledge
that there is no guarantee that the CIA Sale will
ultimately close. If the CIA Sale closes for less
than Three Hundred Fifty Thousand Dollars ($350,000),
the Purchaser shall owe nothing to the Seller related
to the CIA Sale; and
(iv) the Initial Payment, all Monthly Payments, and any
payment made related to the CIA Sale to the Seller
shall be payable by check to DESIENCE CORPORATION,
unless the Seller provides notice to the Purchaser to
the contrary.
(b) CLOSING. The execution of this Agreement and consummation of
the transactions contemplated in this Agreement and in the
other Closing Documents shall take place at such location, on
the date of the Closing (the "CLOSING DATE"), at such time as
the parties shall mutually agree.
1.03 LIABILITIES.
(a) LIMITATION ON LIABILITIES OF PURCHASER. It is expressly
understood and agreed that, except the liability for and
obligation to fulfill the order placed by IBM with the Seller
for placement at the U.S. Department of State under IBM
Purchase Order number 5000988954 and listed as the Seller's
order number 13897 ( the "STATE DEPARTMENT ORDER"), the Seller
shall defend and indemnify the Purchaser against, and that the
Purchaser is not assuming, and shall not in any way become or
be deemed to be liable for, any claim, liability, charge or
obligation of the Seller, or of any officer, director,
shareholder, employee, agent or affiliate thereof, whether
such liability is known or unknown to the Purchaser or the
Seller, fixed or contingent, accrued or unaccrued, including,
without limitation, any of the following:
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(i) any claim, liability or obligation for sales and use
taxes, or for federal, state or local taxes
(including, without limitation, interest and
penalties), including but not limited to taxes on or
measured by the net income of the Seller or the sale
of assets thereby including, without limitation, any
such claim, liability, charge or obligation arising
out of or connected to the sale of the Acquired
Assets pursuant hereto;
(ii) any claim, liability, charge or obligation with
respect to the employment of any employee or group of
employees, or the terms thereof, whether union or
nonunion, whether such claim, liability, charge or
obligation calls for performance or observance
before, at or after the Closing and whether the
claim, liability, charge or obligation arises from a
collective bargaining agreement or other form of
contract (whether oral or written and whether express
or implied in fact or in law), or any past practice
or custom or otherwise, it being understood and
agreed that the Purchaser does not and will not have
any obligation to offer employment to any existing
employee of the Seller and, to the extent it may
choose to do so, the Purchaser will itself be
specifying the terms on which it offers employment to
any individual to whom it, in its sole discretion,
chooses to offer employment and will not be bound by
any term of employment in effect at, or at any time
prior to, the Closing;
(iii) any claims, liabilities, charges, or obligations
incurred by the Seller in violation of, or as a
result of a violation of, this Agreement; and
(iv) any fee or expense incurred by the Seller incident to
the preparation, negotiation, consummation or
performance of this Agreement and/or any Closing
Document, including any obligation for successor
liability imposed by statute or by Contract; and
(v) any claim, liability, charge or obligation with
respect to product liability of any products shipped
by the Seller prior to the Closing Date, other than
any such claims, liability, charges or obligations
resulting from any act or omission by or of the
Purchaser for any products manufactured by the
Purchaser for the Seller and sold by the Seller prior
to the Closing.
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(b) LIMITATION ON LIABILITIES OF SELLER. It is expressly
understood and agreed that from the Closing Date and
thereafter, the Purchaser shall defend and indemnify the
Seller against, and that the Seller is not, and shall not in
any way become or be deemed to be liable for, any claim,
liability, charge or obligation of the Purchaser (or any
affiliated company thereof), or of any officer, director,
shareholder, employee, agent or affiliate thereof, whether
such liability is known or unknown to the Purchaser or the
Seller, fixed or contingent, accrued or unaccrued, including,
without limitation, any of the following:
(i) any claim, liability or obligation for sales and use
taxes, or for federal, state or local taxes
(including, without limitation, interest and
penalties), including but not limited to taxes on or
measured by the net income of the Purchaser or the
acquisition of assets thereby including, without
limitation, any such claim, liability, charge or
obligation arising out of or connected to the
acquisition of the Acquired Assets pursuant hereto;
(ii) any claim, liability, charge or obligation with
respect to the employment of any employee or group of
employees, or the terms thereof, whether union or
nonunion, whether such claim, liability, charge or
obligation calls for performance or observance
before, at or after the Closing and whether the
claim, liability, charge or obligation arises from a
collective bargaining agreement or other form of
contract (whether oral or written and whether express
or implied in fact or in law), or any past practice
or custom or otherwise, it being understood and
agreed that the Purchaser does not and will not have
any obligation to offer employment to any existing
employee of the Seller and, to the extent it may
choose to do so, the Purchaser will itself be
specifying the terms on which it offers employment to
any individual to whom it, in its sole discretion,
chooses to offer employment and will not be bound by
any term of employment in effect at, or at any time
prior to, the Closing;
(iii) any claims, liabilities, charges, or obligations
incurred by the Purchaser in violation of, or as a
result of a violation of, this Agreement; and
(iv) any claim, liability, charge or obligation with
respect to product liability of any products shipped
by the Purchaser after the Closing Date.
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1.04 EXCLUDED ASSETS. The parties expressly acknowledge and agree that the
Acquired Assets to be transferred under this Agreement shall not
include certain assets belonging to or currently used by the Seller,
which assets are set forth on SCHEDULE 1.04 hereof (the "EXCLUDED
ASSETS").
1.05 INSTRUMENTS OF CONVEYANCE; TRANSFER OF POSSESSION. At the Closing, the
Seller will deliver to the Purchaser a duly completed and executed xxxx
of sale in the form of EXHIBIT A and a duly completed assignment
agreement in the form of EXHIBIT B attached hereto and the Seller shall
execute, acknowledge and deliver at or after the Closing such further
instruments of conveyance as the Purchaser deems reasonably necessary
or advisable to carry out and perfect the transfer of the Acquired
Assets contemplated hereby. Simultaneously with the Closing, the Seller
shall put the Purchaser into full possession and enjoyment of the
Acquired Assets.
Section 2. REPRESENTATIONS AND WARRANTIES OF THE SELLER. The Seller hereby makes
for the benefit of the Purchaser the following representations and warranties,
which representations and warranties are true and correct as of the date hereof
and as of the Closing Date, and are relied upon as material to the Purchaser in
inducing the Purchaser to enter into the transactions contemplated hereby:
2.01 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Seller is a
corporation duly organized, validly existing and in good standing under
the laws of the State of California, and has all necessary power and
authority to own its properties and assets and to carry on the Business
as now owned and conducted by it.
2.02 AUTHORITY. The Seller has full power and authority to enter into,
perform and comply with this Agreement and the Closing Documents in
accordance with their respective terms. All corporate action required
to be taken by the Seller, or by its officers, directors and
shareholders, to authorize the execution, delivery and performance of
and compliance with this Agreement and the Closing Documents has been
properly taken. Each person signing this Agreement (and any Closing
Document to which the Seller is a party) is an executive officer of the
Seller shall be the duly elected and qualified executive officer of the
Seller, with full power and authority to enter into, execute and cause
the performance of said agreements by the Seller in accordance with
their respective terms. Once executed and delivered by the Seller, this
Agreement and the other Closing Documents to which it is a party shall
constitute the valid and binding obligation of the Seller, enforceable
against it in accordance with their respective terms.
2.03 NO CONFLICT. The execution and delivery of this Agreement and the
Closing Documents, and the performance of and compliance with this
Agreement and such Closing Documents, will not give rise to, accelerate
the maturity of or otherwise modify any obligation of the Seller, or
result in a breach of or constitute (with or without the giving of
notice or the passage of time or both) a default under or result in the
creation of any lien, charge, security interest, liability or other
encumbrance of any kind or nature (all of the foregoing being
hereinafter referred to collectively as a "Lien") on any of the
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Acquired Assets pursuant to the terms, conditions, or provisions of (a)
any statute, law, ordinance, rule or regulation applicable to the
Seller, or (b) any provision of the charter documents or bylaws of the
Seller, or of any permit, concession, grant, franchise, license,
judgement, order, decree, Contract or other instrument to which the
Seller is a party or by which any of its assets or properties is bound.
For purposes of this Agreement, the term "CONTRACT" shall mean any
contract, agreement, arrangement, undertaking, or understanding,
whether oral or written, to which the Seller is a party or by which is
otherwise bound.
2.04 REQUIRED CONSENTS. There is no consent, permit or approval of, filing
with or notice to any governmental agency, or to any other person,
whether under law or by Contract or otherwise, which is required to be
obtained, made or given by the Seller in connection with the execution,
delivery or performance of this Agreement or any Closing Document, or
the consummation of the transactions contemplated hereby or thereby.
2.05 FINANCIAL STATEMENTS. The Seller has delivered to the Purchaser true
and correct financial information covering the past five (5) years of
the Seller's Business, and has made the Purchaser aware of any changes
that have occurred since such financial information was delivered
(collectively, the "FINANCIAL STATEMENTS").
2.06 NATURE OF ACQUIRED ASSETS.
(a) TITLE TO ACQUIRED ASSETS. The Seller has good and marketable
title in and to the Acquired Assets being conveyed and
transferred by it hereunder, free and clear of any Lien or
other encumbrance or defect in such title.
(b) CONDITION OF ACQUIRED ASSETS. All of the Acquired Assets being
sold by the Seller hereunder are in good condition and repair,
normal wear and tear excepted, and the Seller has not received
notice, nor is it aware, of any material defect or other
problem with any of the Acquired Assets being transferred to
the Purchaser hereunder.
(c) LOCATION. The Acquired Assets being transferred to the
Purchaser hereunder are located at the Seller's principal
place of business at 0000 Xxxxxx Xxxx., X-0, Xxxxx Xxxx,
Xxxxxxxxxx 00000, and in the Seller's leased storage facility
at 0000 Xxxxxx Xxxxxx, Xxxx X, Xx Xxxxx, Xxxxxxxxxx 00000. The
Purchaser acknowledges that both such locations also contain
property owned by one or more third parties, and thus not
subject to this Agreement. Therefore, the Purchaser
acknowledges and agrees to cooperate with the Seller in
identifying the Acquired Assets at the Seller's two locations
when the transfer occurs.
(d) COMPLETENESS. SCHEDULE 1.01(a) attached hereto sets forth a
complete and accurate list of all of the material tangible
assets and properties owned by the Seller and used or useful
in the conduct of its Business. The Acquired Assets set forth
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on SCHEDULE 1.01(a) attached hereto, together with the other
materials and supplies being conveyed by the Seller pursuant
to this Agreement, constitute all of the tangible property and
assets owned, used or useful by the Seller in the conduct of
its respective Business, other than the Excluded Assets. The
Acquired Assets constitute all of the properties and assets
necessary for the conduct by the Purchaser of the Business as
currently being conducted by the Seller. The Seller holds all
licenses and other rights in the property of others necessary
for its conduct of the Business as currently being conducted.
The Seller is not aware of any capital expenditure (exclusive
of maintenance or other repairs in the ordinary course), which
is necessary for the continued conduct of its Business as
presently being conducted.
2.07 COMPLIANCE WITH LAWS AND CONTRACTS.
(a) NO VIOLATIONS. The Seller is not, nor has it been during the
last five (5) years, in violation of any applicable federal,
state or local statute, law, order, judgement, decree,
requirement or regulation (including, without limitation,
those relating to the environment, employee health and safety,
consumer protection, civil or human rights, labor relations,
employment discrimination, zoning or buildings or their
electrical, plumbing or other systems) applicable to the
Business, or any of its operations, properties or assets. The
Seller has not received during the last five (5) years, (i)
any notice, claim or assertion, formal or informal, oral or
written, of any such violation from any person or governmental
agency, or (ii) any request or demand from such governmental
agency that the Seller modify or terminate any of its
operations, or modify or dispose of any of its properties or
assets.
(b) PERMITS AND LICENSES. The Seller possesses all permits,
concessions, grants, franchises, licenses and other
governmental authorizations and third-party approvals
(collectively, "PERMITS") necessary for the conduct of its
Business as presently being conducted. All of such Permits
have been duly obtained and are in full force and effect, and
there are no proceedings pending or threatened against the
Seller which may result in the revocation, cancellation or
suspension, or any materially adverse modification, of any of
such Permits.
(c) CONTRACTS. The Seller is not a party to any Contract which is
not terminable unilaterally by the Seller or able to be
assumed by the Purchaser under the terms and conditions of
this Agreement. No event has occurred and no condition exists
which constitutes, or with notice or lapse of time or both
would constitute, a default by the Seller or any other party
under any of the Contracts to which the Seller is bound or by
which any of its properties or assets are bound. The Seller
has not received any notice that any party to any of such
Contracts intends to cancel or terminate any of them or to
exercise or not exercise any options or other rights granted
under any of them. The Seller currently possesses all rights
under Contracts which are necessary for the conduct of the its
Business as presently being conducted, all of which Contracts
shall continue to be valid and in full force and effect on and
as of the Closing Date. Notwithstanding the previous sentence,
Seller acknowledges that Purchaser is not assuming any
Contracts in place at closing, except for the GSA contract.
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2.08 INTELLECTUAL PROPERTY RIGHTS. The Seller has not registered any
trademark, service xxxx, tradename, logo, symbol, copyright, patent or
other type of intellectual property right (an "INTELLECTUAL PROPERTY
RIGHT"), nor has it filed any application to register any such
Intellectual Property Right. The Seller has not used, and does not use,
in the ordinary course of its Business any Intellectual Property Right
belonging to any other person. The Seller has all of the Proprietary
Rights necessary to conduct its Business in the manner in which such
Business is currently being conducted.
2.09 LEGAL PROCEEDINGS. The Seller has not been advised of any claims,
lawsuits, actions, arbitrations, legal, administrative or other
proceedings or governmental investigations to which it is a party, or
which is (to the best of its knowledge) threatened against it, or which
affects its financial condition, liabilities, Business, properties,
assets or prospects. The Seller is not in default with respect to any
judgement, order, writ, injunction, decree or award of any court,
governmental agency, arbitrator or arbitration panel.
2.10 NO REQUIRED STATE FILINGS. The Seller expressly represents and warrants
to the Purchaser the following, and acknowledges to the Purchaser its
understanding that such Purchaser, in material reliance thereupon, will
not take, or fail to take any action, or withhold any amounts from the
Purchase Price, which actions or withholding would otherwise be an
obligation of the Purchaser under applicable California law if the
representations and warranties given in this Section 2.10 were not
accurate, true and complete as follows:
(a) the purchase and sale transactions contemplated by this
Agreement or in any Closing Document does not, as to the
Seller, constitute a "bulk sale" as defined in Section 6103 of
the California Uniform Commercial Code - Bulk Sales, and are
not subject to or governed by Division 6 of the California
Commercial Code as currently in effect;
(b) the Seller, by engaging in any transaction contemplated by
this Agreement or any Closing Document, is engaging in a sale
by an employer of the organization, trade or business, or
substantially all of the assets thereof, as such terms are
used in Section 1732 of the California Unemployment Insurance
Code; and
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(c) the Seller, by engaging in any transaction contemplated by
this Agreement or any Closing Document, is or will be liable
for any amount under the California Sales and Use Tax Law, as
set forth in Sections 6001, ET. SEQ. of the California Revenue
and Taxation Code, by virtue of such Seller engaging in
selling out its business or stock of goods, or quitting its
business, as such terms are used in Section 6811 of said Sales
and Use Tax Law.
2.11 MISSTATEMENTS AND OMISSIONS. Neither the representations and warranties
made in this Section 2 nor anything set forth in the Schedules attached
hereto or any other written materials furnished to the Purchaser
hereunder or in connection with the transactions contemplated hereby,
contain any untrue statement of a material fact or omits to state any
material fact necessary to make the statements contained herein or
therein not misleading.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The Purchaser hereby
makes for the benefit of the Seller the following representations and
warranties, which representations and warranties are true and correct as of the
date hereof and as of the Closing Date, and are relied upon as material to the
Seller in inducing the Seller to enter into the transactions contemplated
hereby:
3.01 ORGANIZATION, GOOD STANDING AND QUALIFICATION. The Purchaser is a
corporation duly organized, validly existing and in good standing under
the laws of the State of California.
3.02 AUTHORITY. The Purchaser has full power and authority to enter into,
perform and comply with this Agreement and the Closing Documents in
accordance with their respective terms. All corporate action required
to be taken by the Purchaser, or by its officers, directors and
shareholders, to authorize the execution, delivery and performance of
and compliance with this Agreement and the Closing Documents has been
properly taken. Each person signing this Agreement (and any Closing
Document to which the Purchaser is a party) is an executive officer of
the Purchaser shall be the duly elected and qualified executive officer
of the Purchaser, with full power and authority to enter into, execute
and cause the performance of said agreements by the Purchaser in
accordance with their respective terms. Once executed and delivered by
the Purchaser, this Agreement and the other Closing Documents to which
it is a party shall constitute the valid and binding obligation of the
Purchaser, enforceable against it in accordance with their respective
terms.
3.03 NO CONFLICT. The execution and delivery of this Agreement and the
Closing Documents, and the performance of and compliance with this
Agreement and the Closing Documents, will not give rise to, accelerate
the maturity of or otherwise modify any obligation of the Purchaser, or
result in a breach of or constitute (with or without the giving of
notice or the passage of time or both) a default under or result in the
creation of any Lien on any of the business or properties of the
Purchaser pursuant to the terms, conditions, or provisions of any
statute, law, ordinance, rule or regulation applicable to the
Purchaser, or any provision of any Contract to which the Purchaser is
bound.
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3.04 REQUIRED CONSENTS. There is no consent, permit or approval of, filing
with or notice to any governmental agency or to any other person,
whether under law or by Contract or otherwise, which is required to be
obtained, made or given by the Purchaser in connection with the
execution, delivery or performance of this Agreement or any Closing
Document, or the consummation of the transactions contemplated hereby
or thereby.
Section 4. CONDITIONS PRECEDENT TO THE PURCHASER'S PERFORMANCE. The obligations
of the Purchaser to be performed under this Agreement at or after the Closing
are subject to the satisfaction, at or before the Closing, of all of the
conditions set forth in this Section 4. The Purchaser may waive any or all of
such conditions in whole or in part without prior notice. No such waiver of a
condition shall, however, constitute a waiver by the Purchaser of any of its
other rights or remedies, at law or in equity, if the Seller shall breach or be
in default under any of its representations, warranties or covenants made under
or pursuant to this Agreement.
4.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties set forth in Section 2 above or all written statements that
shall be delivered to the Purchaser pursuant hereto shall be true and
correct at all times during the consummation of the transactions
contemplated hereby and in the Closing Documents.
4.02 SELLER'S PERFORMANCE. The Seller shall have performed, satisfied and
complied with all covenants, agreements and conditions required by this
Agreement to be performed, satisfied or complied with by it before, at
or after the Closing.
4.03 CLOSING DELIVERIES. At the Closing, the Seller shall have delivered to
the Purchaser originally-executed copies of (a) this Agreement; (b)
Xxxx of Sale in the form of EXHIBIT A attached hereto; (c) an
Assignment Agreement in the form of EXHIBIT B attached hereto; and (d)
excerpts from the resolutions of the Board of Directors (and, if
required, the Shareholders) of the Seller authorizing the execution,
delivery and performance by the Seller of this Agreement, the Closing
Documents, and the transactions contemplated hereby and thereby,
certified by the duly authorized and qualified corporate secretary of
the Seller.
Section 5. CONDITIONS PRECEDENT TO THE SELLER'S PERFORMANCE. The obligations of
the Seller to be performed under this Agreement at or after the Closing are
subject to the satisfaction, at or before the Closing, of all of the conditions
set forth in this Section 5. The Seller may waive any or all of such conditions
in whole or in part without prior notice. No such waiver of a condition shall,
however, constitute a waiver by the Seller of any of its other rights or
remedies, at law or in equity, if the Purchaser shall breach or be in default
under any of its representations, warranties or covenants made under or pursuant
to this Agreement.
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5.01 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties set forth in Section 3 above or all written statements that
shall be delivered to the Seller pursuant hereto shall be true and
correct at all times during the consummation of the transactions
contemplated hereby and in the Closing Documents.
5.02 PURCHASER'S PERFORMANCE. The Purchaser shall have performed, satisfied
and complied with all covenants, agreements and conditions required by
this Agreement to be performed, satisfied or complied with by it
before, at or after the Closing.
5.03 CLOSING DELIVERIES. At the Closing, the Purchaser shall have delivered
to the Seller originally-executed copies of (a) this Agreement; (b) the
Initial Payment; (c) Xxxx of Sale in the form of EXHIBIT A attached
hereto; and (d) an Assignment Agreement in the form of EXHIBIT B
attached hereto.
Section 6. SURVIVAL. The provisions of this Section 6 and Sections 1.02, 7.01,
7.03, 7.04 and 7.08 of this Agreement shall survive the Closing of this
Agreement until such time as all payments owed under this Agreement have been
received by the Seller.
Section 7. MISCELLANEOUS PROVISIONS.
7.01 TRANSACTIONAL EXPENSES. Each party shall pay its own fees and expenses
incident to the negotiation, preparation, execution, delivery and
performance hereof, including, without limitation, the fees and
expenses of its counsel, accountants and other agents and
representatives.
7.02 ACCESS. Until the Closing and for a reasonable period thereafter
throughout the transition of the Business, the Seller hereby agrees to
(i) provide the Purchaser and its representatives full access to the
books, records, facilities and senior management and financial
personnel of the Seller, and (ii) permit the Purchaser and its
representatives to make copies and retain other documentation with
respect to the Seller, its Business, operations, financial position,
prospects and the Acquired Assets.
7.03 NON-DISCLOSURE, NON-COMPETE. The Seller agrees that, after the Closing
Date, it shall not, and shall cause its officers, directors,
shareholders, employees, agents and representatives not to, disclose or
reveal to any person, directly or indirectly, any confidential or
proprietary information relating to the customers, business practices
and policies, operations, financial condition, prospects or any other
aspect of the Seller's Business, which confidential or proprietary
information is hereby acknowledged by the Seller to constitute a
portion of the Acquired Assets being purchased hereunder, and that, for
a period of five (5) years, the Seller will not enter into any business
activity that competes directly against the Purchaser with products
similar to those of the Business related to the transaction
contemplated by this Agreement.
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7.04 BROKERS. Each party represents and warrants to the others that it has
dealt with no broker or finder in connection with any of the
transactions contemplated by this Agreement and, insofar as each party
knows, no broker, finder or other person is entitled to any brokerage
commission or finder's fee in connection with any of such transactions.
Each party agrees to indemnify and hold harmless the other parties from
and against any claim of brokerage fees, commissions or other
remuneration resulting from any action taken by the indemnifying party
hereunder.
7.05 AMENDMENTS; WAIVERS. This Agreement may be amended, modified or
supplemented only by a written instrument signed by the parties hereto.
No waiver of any provision of this Agreement shall be deemed to be or
shall constitute a waiver of any other provision, whether or not
similar, nor shall any waiver constitute a continuing waiver. No waiver
shall be binding unless executed in writing by the party making the
waiver.
7.06 SCHEDULES AND EXHIBITS. All of the Schedules and Exhibits attached
hereto are hereby incorporated into this Agreement by reference and
made an integral part hereof as fully as if the same had been set out
completely as a part of this Agreement. All representations,
warranties, covenants and other agreements contained herein shall be
applicable to such Schedules and Exhibits.
7.07 NOTICES. All notices, requests, demands and other communications to be
given hereunder shall be in writing and shall be deemed to have been
duly given on the date of personal service or transmission by fax if
such transmission is received during the normal business hours of the
addressee, or on the first business day after sending the same by
overnight courier service or by telegram, or on the third business day
after mailing the same by first class mail, or on the day of receipt if
sent by certified or registered mail, addressed as set forth below, or
at such other address as any party may hereafter indicate by notice
delivered as set forth in this Section 7.07:
If to the Seller: Desience Corporation
0000 Xxxxxx Xxxx.
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxxx
President
If to the Purchaser: Xxxx Xxxxxxx Corp.
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attn: Xx. Xxxx Xxxxxxxxxxxxx
President
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7.08 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of California applicable
to the performance and enforcement of contracts made within such state,
without giving effect to the law of conflicts of laws applied thereby.
In the event that any dispute shall occur between the parties arising
out of or resulting from the construction, interpretation, enforcement
or any other aspect of this Agreement, the parties hereby agree to
accept the exclusive jurisdiction of the Courts of the State of
California sitting in and for the County of Orange. In the event either
party shall be forced to bring any legal action to protect or defend
its rights hereunder, then the prevailing party in such proceeding
shall be entitled to reimbursement from the non-prevailing party of all
fees, costs and other expenses (including, without limitation, the
reasonable expenses of its attorneys) in bringing or defending against
such action.
7.09 ACKNOWLEDGEMENT OF RIGHT TO INDEPENDENT COUNSEL. The parties each
hereby acknowledge and agree that they each had the opportunity to have
this Agreement reviewed by independent legal counsel, and to ask such
questions and request such documentation from the other as they desired
during the course of negotiating this Agreement. Accordingly, in
construing or interpreting this Agreement neither party shall assert
that such construction or interpretation should be held against the
other party merely because it initiated or completed the drafting
hereof.
7.10 BINDING AGREEMENT; ASSIGNABILITY. This Agreement shall constitute the
binding agreement of the parties hereto, enforceable against each of
them in accordance with its terms. This Agreement shall inure to the
benefit of and be binding upon the heirs, executors, administrators,
successors and assigns of the parties hereto. This Agreement may be
assigned by any party with the prior written consent of the other
parties hereto, which consent shall not be unreasonably withheld.
7.11 ENTIRE AGREEMENT. This Agreement and its Schedules and Exhibits
constitutes the entire and final agreement and understanding among the
parties on the subject hereof and the transactions contemplated hereby,
and supersedes any and all prior oral or written agreements,
statements, representations, warranties or understandings by any party
(other than as embodied in any Closing Document which is executed and
delivered by the parties pursuant to this Agreement), all of which are
deemed to be merged herein and superseded hereby.
7.12 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
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7.13 SEVERABLE PROVISIONS. The provisions of this Agreement are severable,
and if any one or more provisions is determined to be illegal,
indefinite, invalid or otherwise unenforceable, in whole or in part,
the remaining provisions of this Agreement, and any partially
unenforceable provisions to the extent enforceable in the pertinent
jurisdiction, shall continue in full force and effect and shall be
binding and enforceable on the parties.
7.14 SPECIFIC PERFORMANCE. The parties hereby agree with each other that, in
the event of any breach of this Agreement by any party where such
breach may cause irreparable harm to any other party, or where monetary
damages may not be sufficient or may not be adequately quantified, then
the affected party or parties shall be entitled to immediate specific
performance, injunctive relief or such other equitable remedies as may
be available to it, which remedies shall be cumulative and
non-exclusive, and in addition to such other remedies as such party may
otherwise have at law or in equity.
7.15 FURTHER DOCUMENTS AND ACTS. Each party agrees to execute such other and
further documents and to perform such other and further acts as may be
reasonably necessary to carry out the purposes and provisions of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first above written.
THE SELLER:
-----------
DESIENCE CORPORATION ATTEST:
By: /S/ Xxxx Xxxxxxxxx By: /S/ Xxxx XxXxx
------------------ --------------
Xxxx Xxxxxxxxx Xxxx XxXxx
President Secretary
THE PURCHASER:
--------------
XXXX XXXXXXX CORP. ATTEST:
By: /S/ Xxxx Xxxxxxxxxxxxx By: /S/ Xxxx Xxxxxxx
---------------------- ----------------
Xxxx Xxxxxxxxxxxxx Xxxx Xxxxxxx
President Secretary
