Exhibit 10.3
Asset Purchase Agreement
EXHIBIT 10.3
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into
this day of October , 2001, by and between LONG REACH, INC., a Delaware
corporation ("Seller"), whose principal business address is 00000 Xxxxxx Xxxxx,
Xxxxxxx, Xxxxx 00000 and PCC OLOFSSON INC., a Delaware corporation, whose
principal address is 0000 Xxxxxx Xxxxxx, Xxxxxxx, XX 00000 ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller is engaged in the business of, among other things, the
manufacture and sale of (i) masts and associated spare parts, and (ii) integral
carriages sold to OEM lift truck manufacturers and associated spare parts
(collectively, the "Mast Business"); and
WHEREAS, Seller desires to sell and Buyer desires to purchase certain
assets associated with the Mast Business on the terms and conditions hereinafter
set forth; and
NOW, THEREFORE, in consideration of the promises and subject to the
conditions in this Agreement, Buyer and Seller agree as follows:
1. Definitions:
(a) OEM LIFT TRUCK MANUFACTURER - An Original Equipment Manufacturer
in the Material Handling Industry. To include but not be limited to past,
present, and prospective customers of Long Reach, examples of which follow:
Big Xxx Xxxxxxx
Calaveras Manufacturing Xxxxx
Xxxxx Marine Travelift
Daewoo MCFA
Finning Nacco
Gradal Nissan
Hoist Liftruck Plymouth
Hyster Xxxxxx Machine Works
Kalmar Toyota
KD Manitou Yale
(b) DEALER - A supplier of parts and services to the end user of
Material Handling Equipment. A dealer does not manufacture original equipment.
2. PURCHASE OF ASSETS. Seller will sell and Buyer will purchase the
following assets associated with the Mast Business (collectively, the "Assets"):
(i) All patents, trademarks, trade names and service marks and
registrations thereof and applications therefor, copyrights, know-how,
designs, bills of material, routings, other technical information and
proprietary rights relating to the Mast Business and database data
related to the Mast Business to be downloaded and copied onto a
computer disc for Buyer (including part numbers, price list and sales
history) (collectively, "Intellectual Property"), including the
tradename "Swingshift" and the registered patents and trademarks
listed on Schedule 1 attached hereto, but excluding the tradename
"Xxxxx" or any derivatives thereof;
(ii) The fixtures, tooling and equipment relating to the Mast
Business and listed on Schedule 2 attached hereto ; and
(iii) Sales and business records, files, invoices, customer lists,
cost and pricing information, supplier lists, research and development
files and credit records of customers (the "Records").
3. PURCHASE PRICE.
(a) The purchase price ("Purchase Price") for the Assets shall be the
sum of Nine Hundred Thousand Dollars ($900,000).
(b) Buyer will pay to Seller the Purchase Price by certified check or
wire transfer at the time of Closing less the Warranty Escrow (as defined In
Section 6(c) below) which Warranty Escrow shall be paid in accordance with
Section 6(c).
(c) Buyer and Seller shall cooperate in the preparation of Internal
Revenue Service Form 8594, entitled Asset Acquisition Statement Under Section
1060, or any other similar form required to be filed by Buyer or Seller under
the Internal Revenue Code of 1986, as amended.
4. OPTION TO PURCHASE INVENTORY.
(a) Buyer has the option to purchase Seller's inventory relating to
the Mast Business listed on Schedule 3 attached hereto to the extent Seller has
such inventory available (collectively, the "Inventory").
(b) The purchase price paid by Buyer for the Inventory shall be the
lesser of 50% of book value or 100% of fair market value. Fair market value is
defined as a valid and current quotation for the same product as demonstrated by
Buyer. Upon exercise of the option by Buyer, Buyer shall pay the purchase price
for the Inventory within 30 days of receipt of Seller's invoice for such
Inventory.
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5. TRANSITION SERVICES. Seller will provide one supervisor of Buyer's
choosing and one engineer of Buyer's choosing each for a period of four weeks on
a full-time basis to support the transition of the Mast Business from Seller to
Buyer at no additional cost to Buyer.
6. LIABILITIES RELATING TO THE MAST BUSINESS.
(a) Subject to the provisions of this Agreement, Buyer shall not
assume any liabilities, obligations or commitments of Seller relating to the
Assets and the ownership or operation of the Mast Business to the extent arising
prior to the Closing Date, including, without limitation, any liabilities or
obligations for any product manufactured by Seller prior to the Closing Date.
Buyer agrees to assume, pay, satisfy, perform and discharge all liabilities and
obligations relating to the Assets and the operation of the Mast Business, to
the extent such liabilities and obligations arise on or after the Closing Date,
except to the extent they relate to Seller's activities prior to the Closing
Date ("Assumed Liabilities"). The Assumed Liabilities shall include any and all
product liability claims for products manufactured by Buyer on or after the
Closing Date. Seller shall retain liabilities, obligations or commitments which
relate to its ownership or operation of the Mast Business prior to the Closing
Date and shall be responsible for liabilities, obligations or commitments
relating to Seller's employees and environmental claims relating to Seller's
properties regardless of when they arise (the "Retained Liabilities").
(b) From and after the Closing, Seller shall be responsible for
warranty claims relating to the Mast Business for products which Seller
manufactured, and Buyer shall be responsible for warranty claims relating to the
Mast Business for products which Buyer manufactures. Within seven days after the
Closing, Seller shall provide written notification to the customers of the Mast
Business of the sale of the Mast Business and of the foregoing warranty policy
substantially in the form of letter attached hereto as Exhibit B.
(c) At Closing, a portion of the Purchase Price in the amount of
twenty thousand dollars ($20,000) ("Warranty Escrow") shall be placed by Buyer
into an escrow account to be held in escrow for a period of nine months after
the Closing for the purpose of handling any warranty claims for products
manufactured by Seller prior to Closing relating to the Mast Business which are
not resolved by Seller and are referred to Buyer, which escrow shall be held
pursuant to the terms and provisions of the escrow arrangement described on
Exhibit A attached hereto.
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7. CLOSING.
(a) The closing of the purchase and sale of the Assets will be on or
about October 5 , 2001 (the "Closing" or the "Closing Date") or such other date
as Buyer and Seller mutually agree. Except as otherwise provided in this
Agreement, at the Closing, all instruments, documents and papers required to
close the purchase will be executed by Buyer and Seller, the Purchase Price will
be paid to Seller and possession of the Assets will be delivered to the Buyer.
(b) On the Closing Date, the parties shall deliver the following:
(i) Seller shall deliver to Buyer a xxxx of sale, assignment of
patents and trademarks and all other instruments or assignments
necessary to transfer title to the Assets to Buyer, free and clear of
all liens, security interests and encumbrances, with such documents to
be in form reasonably satisfactory to Buyer and Buyer's counsel.
(ii) Seller and Buyer shall each deliver to the other a good
standing certificate, copies of their organizational documents and a
copy of the written consent or minutes of a meeting of their
respective Board of Directors authorizing the transactions
contemplated hereby, the execution of this Agreement, and any other
documents necessary for the closing, along with a Secretary's
certificate certifying as to the foregoing.
(iii) All other agreements, instruments and documents as may be
reasonably required by Buyer or Seller to close the purchase and sale
of the Assets referred to in this Agreement.
8. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller makes the following
representations and warranties to Buyer:
(a) AUTHORITY. Seller has the full right, power and authority to
execute, deliver and perform this Agreement and all actions and transactions
contemplated hereby.
(b) VALIDITY. This Agreement constitutes a valid and binding
obligation of Seller enforceable in accordance with its terms. The execution,
delivery and performance of this Agreement by Seller will not result in any
breach of any term or provision of any contract, agreement or other instrument,
or any judgment, decree or order of any court to which Seller is a party, or by
which Seller may be bound.
(c) TITLE. Seller has good and marketable title to all of the Assets,
free and clear of all liens, pledges, security interests, encumbrances and/or
other claims or charges of any kind whatsoever, including claims of Seller's
bank lenders and other creditors. To the knowledge of Seller, none of the
Intellectual Property infringes on the proprietary rights of any third party.
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(d) CONDITION. The fixtures, tooling and equipment listed on Schedule
2 are in operating condition, subject to ordinary wear and tear, and are in such
condition as is necessary to permit the Mast Business to continue to be operated
in the regular and ordinary course.
(e) CUSTOMERS. Seller does not know of any plan or intention of, and
has not received any written threat or notice from, any OEM Lift Truck
Manufacturer that has been Seller's customer in the period from January 1, 2000
to the present to terminate, cancel or modify its relationship with Seller.
9. REPRESENTATIONS AND WARRANTIES OF BUYER. The Buyer represents
and warrants to Seller as follows:
(a) AUTHORITY. Buyer has the full right, power and authority to
execute, deliver and perform this Agreement and all actions and transactions
contemplated hereby.
(b) VALIDITY. This Agreement constitutes a valid and binding
obligation of Buyer enforceable in accordance with its terms. The execution,
delivery and performance of this Agreement by Buyer will not result in any
breach of any term or provision of any contract, agreement or other instrument,
or any judgment, decree or order of any court to which Buyer is a party, or by
which Buyer may be bound.
10. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, THE ASSETS ARE TRANSFERRED "AS IS, WHERE IS" AND WITH ALL FAULTS AND
SELLER MAKES NO WARRANTIES EXPRESS OR IMPLIED, REGARDING THE ASSETS, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. NOTWITHSTANDING ANY OTHER PROVISIONS HEREUNDER INCLUDING THE PROVISIONS
OF SECTION 14 HEREOF, UNDER NO CIRCUMSTANCES WILL SELLER BE LIABLE TO BUYER FOR
INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING FROM A BREACH OF
THIS AGREEMENT WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING
NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. BULK SALES WAIVER. Buyer hereby waives compliance by Seller with the
provisions of any bulk sales or bulk transfer laws of any jurisdiction in
connection with the transaction contemplated hereby and Seller agrees to
indemnify Buyer and hold it harmless against any liability, loss or damage
arising from claims or demands of whatever nature asserted by any present of
future creditor of Seller or other person against Buyer or the Assets for
noncompliance with bulk transfer laws which may be applicable to the sale of the
Assets hereunder.
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12. COVENANT NOT TO COMPETE.
(a) For a period of four years after the Closing, Seller will not
directly or indirectly operate a business that is similar to the Mast Business,
and Seller will refer to Buyer all leads that it receives for Mast Business.
(b) For a period of four years after the Closing, Buyer will not
directly or indirectly operate a business involved in the manufacture and sale
of integral carriages to Dealers located in the United States and Canada, and
Buyer will refer to Seller all leads that it receives for such business.
13. CONDITIONS PRECEDENT TO CLOSING. The obligation of the Seller and
Buyer to close the purchase of the Assets is subject to the following conditions
which, unless waived by the affected party, must be satisfied on or prior to the
Closing Date:
(i) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the parties shall be true and accurate in all material
respects as of the Closing.
(ii) NO MATERIAL CHANGE. The Assets will not have been materially
adversely affected as a result of fire, explosion, flood, earthquake,
disaster, accident, casualty, act of God, riot, civil disturbance,
labor dispute or other disruption.
(iii) COMPLIANCE WITH AGREEMENT. Seller and Buyer will have
performed and complied in all material respects with all obligations
under this Agreement which are to be performed or complied with on or
prior to the Closing Date.
(iv) PROCEEDINGS AND INSTRUMENTS SATISFACTORY. All documents
required by Buyer and Seller under this Agreement will have been
delivered to the appropriate party.
(v) TAXES. Buyer shall pay all sales or transfer taxes due any
governmental authority arising from this transaction.
14.SURVIVAL; INDEMNITY AND HOLD HARMLESS AGREEMENT.
(a) Seller will indemnify and hold Buyer, its officers, directors or
affiliates, harmless from any liability or expenses, including reasonable
attorney's fees, costs and expenses incurred by Buyer to defend or prosecute any
action or proceeding, resulting from (i) a breach of this Agreement by Seller or
the inaccuracy or breach of any representation, warranty, covenant or agreement
contained in this Agreement or in any certificate, schedule, exhibit or
instrument delivered to Buyer by or on behalf of Seller under this Agreement,
and (ii) the assertion of any claims relating to any liabilities or obligations
of Seller other than the Assumed Liabilities, but specifically including the
Retained Liabilities.
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(b) Buyer shall indemnify and hold Seller, its officers, directors,
and affiliates, harmless from any liability or expenses, including reasonable
attorney's fees, costs and expenses incurred by Seller to defend or prosecute
any action or proceeding, resulting from (i) a breach of this Agreement by Buyer
or the inaccuracy or breach of any representation, warranty, covenant or
agreement contained in this Agreement or in any certificate, schedule, exhibit
or instrument delivered to Seller by or on behalf of Buyer under this Agreement,
and (ii) the Assumed Liabilities.
(c) A party seeking indemnification hereunder ("Indemnitee") shall
promptly give written notice to the party from which indemnification is sought
(the "Indemnitor") of any matter with respect to which the Indemnitee seeks to
be indemnified (a "Claim"), stating in such notice the nature of the Claim and
all facts known to Indemnitee giving rise to such Claim, provided that the delay
or failure of the Indemnitee to provide such notice shall not relieve the
Indemnitor from its indemnification obligations hereunder except to the extent
that it is materially prejudiced by such delay or failure. The Indemnitee shall
permit the Indemnitor, at the Indemnitor's option and expense, to assume the
defense of such action, suit, proceeding, claim, demand or assessment with full
authority to conduct such defense. The Indemnitor and the Indemnitee shall
cooperate with each other in the defense of any Claim and each shall have notice
of, and access to, all discovery, trial or other proceedings and all documents
relating to any such Claim. The Indemnitor shall not, without the Indemnitee's
prior written consent, settle or compromise any action, claim or proceeding or
consent to entry of any judgment with respect to any such action, claim or
proceeding, which consent shall not be unreasonably withheld or delayed.
(d) The representations, warranties and agreements made by Seller and
Buyer in this Agreement will survive forever in the case of those set forth in
Section 8 (a), (b) and (c) and Section 9 (a) and (b) and for a period of six
months after the Closing in the case of all others provided, that Claims, if
any, asserted in writing prior to the end of the six-month period, shall survive
until finally resolved and satisfied in full.
15. GENERAL PROVISIONS.
(a) ENTIRE AGREEMENT. This Agreement is the entire agreement between
Buyer and Seller, and no agreements, representations or warranties have been
made other than those in this Agreement, except as appear on the exhibits
attached to this Agreement. This Agreement may not be modified except by a
writing executed by Buyer and Seller.
(b) SUCCESSORS AND ASSIGNS. This Agreement is binding upon and inures
to the benefit of, and may be enforced by Seller and Buyer and their respective
successors and assigns.
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(c) ASSIGNMENT. Neither party may assign the rights or obligations of
such party under this Agreement to any third party without the other party's
prior written consent.
(d) NOTICES. All notices, requests, demands and other communications
hereunder will be deemed to have been duly given if delivered by hand,
nationally recognized overnight courier, or mail (certified or registered with
postage prepaid, return receipt requested) as follows:
If to the Seller: Long Reach, Inc.
00000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
If to the Buyer: PCC Superior Fabrication
00000 X. Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxxxx
(e) SEVERABILITY. If any one or more of the provisions in this
Agreement or any application of the provisions of this Agreement is declared
invalid, illegal or unenforceable by any court of competent jurisdiction, the
validity, legality or enforceability of the remaining provisions of this
Agreement will not be impaired by such declaration, and this Agreement will be
construed as if such invalid, illegal or unenforceable provision was not
contained in this Agreement.
(f) Singular/Plural. The singular of any word shall include the plural
and vice versa unless the Contract requires otherwise.
(g) PRESS RELEASES AND PUBLIC ANNOUNCEMENTS. No party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other Party (and such
approval shall not be unreasonably withheld), except as may be required by
applicable law, including, without limitation, federal securities laws.
16. BROKERS. The parties represent to each other that no broker was
involved in bringing together the parties and consummating transactions
contemplated by this Agreement. Each party shall indemnify and hold harmless the
other for a breach of this representation.
17. COUNTERPARTS. This Agreement may be signed in counterparts, each
of which shall be deemed an original and all of which, taken together, shall
constitute one and the same agreement.
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18. ORDER BACKLOG/PARTS REPLACEMENT.
(a) Buyer shall manufacture all of Seller's order backlog relating to
the Mast Business scheduled for shipment on or after October 26, 2001. In
addition, Buyer shall have the option, by notification to Seller on or prior to
Closing, to manufacture the following orders scheduled for October shipment: (i)
for masts and carriages, Cal-Lift order # 141671 with a shipping date scheduled
for October 16, 2001; and (ii) for integrals, Hoist lifttruck order # 143025
scheduled for shipment on October 17, 2001; and (iii) Xxxxx order #140559
scheduled for shipment on October 19, 2001.
All other order backlog relating to the Mast Business scheduled for
shipment prior to October 26, 2001 shall be manufactured by Seller.
(b) Notwithstanding any provision to the contrary contained herein,
from the Closing until November 30, 2001, Seller agrees to process orders for
spare or replacement parts relating to the Mast Business on behalf of Buyer upon
Buyer's request. Seller shall pay to Buyer ten percent of its sales for such
orders. On and after December 1, 2001, all orders for spare or replacement parts
relating to the Mast Business shall be processed by Buyer.
Executed and agreed to on the day and year first above written.
SELLER: BUYER:
LONG REACH, INC. PCC OLOFSSON INC.
By: /s/ Xxxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxx
---------------------- -----------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxx Xxxxxxx
Title: President Title: President
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EXHIBIT A
ESCROW ARRANGEMENT
Buyer will place the Warranty Escrow in a separate interest-bearing account
("Escrow Account") to be used solely for the purposes set forth in Section 6(c)
of this Agreement. Bank fees related to the Escrow Account will be payable first
out of interest earned on the account and then shall be borne equally by Seller
and Buyer. Upon written notice to Seller describing the warranty claim and
providing supporting detail and charges associated with the correction of such
claim, Buyer may make withdrawals from the Escrow Account solely for the purpose
of handling costs associated with warranty claims described in Section 6(c).
Buyer shall provide Seller and Bank One, N.A., Seller's lender, a monthly
accounting of funds in the Escrow Account.
In the event the Escrow Account balance falls below $5000 during the nine month
warranty period, Seller must deposit an additional $5000 in the Escrow Account
within 10 business days of being notified by the Buyer of such shortfall in
writing.
Buyer acknowledges that all amounts released to Seller from the Escrow Account
are subject to a security interest in favor of Seller's lender, Bank One, N.A.
Accordingly, any unused funds in the Escrow Account will be returned to Bank
One, N.A. (if any obligations remain outstanding from Seller to Bank One, N.A)
at the end of the nine-month escrow period.
This escrow arrangement will not relieve the Seller of any warranty
responsibility or liability to its customers for warranty claims with respect to
the Mast Business for products manufactured prior to the Closing as set forth in
the Agreement.
