ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT (the “Agreement”)
is
dated July 31, 2008 by and among, Trebor Industries, Inc., a Florida corporation
(the “Buyer”)
and
Xxxxxx X. Xxxxxxxxxx, an individual residing in the State of Florida (the
“Seller”).
W
I T N E S S E T H:
WHEREAS,
the Seller owns certain intellectual property itemized on Exhibit A;
WHEREAS,
the Buyer currently licenses such intellectual property from the Seller in
consideration of a royalty fee;
WHEREAS,
Buyer believes that it would be in the best interests of the Buyer to acquire
the intellectual property, thereby eliminating the royalty fee, and providing
the Buyer with an opportunity to license the intellectual property to third
parties; and
WHEREAS,
the Buyer wishes to purchase or acquire from the Seller and the Seller wishes
to
sell, assign and transfer to the Buyer, the intellectual property upon the
terms
and subject to the conditions hereinafter set forth.
NOW,
THEREFORE, in consideration of the mutual covenants, representations and
warranties made herein, and of the mutual benefits to be derived hereby, the
parties hereto agree as follows:
DEFINITIONS
The
terms
defined below, whenever used in this Agreement (including the Exhibits and
Schedules attached hereto), shall have the respective meanings indicated below
for all purposes of this Agreement. All references herein to a Section, Article,
Exhibit or Schedule are to a Section, Article, Exhibit or Schedule of or to
this
Agreement, unless otherwise indicated.
Affiliate:
of a
Person shall mean a Person that directly or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
the
first Person. “Control” (including the terms “controlled by” and “under common
control with”) means the possession, directly or indirectly, of the power to
direct or cause the direction of the management policies of a person, whether
through the ownership of voting securities, by contract or credit arrangement,
or otherwise.
Agreement:
shall
have the meaning provided in the first paragraph, above.
Applicable
Law:
shall
mean all applicable provisions of all constitutions, treaties, statutes, laws
(including the common law), rules, regulations, ordinances, codes or orders
of
any governmental authority.
Assets:
shall
have the meaning provided in Section 1.1.
Buyer:
shall
mean Trebor Industries, Inc., a Florida corporation, and any of its successors
and assigns.
Closing:
shall
have the meaning provided in Section 2.1.
Closing
Date:
shall
have the meaning provided in Section 2.1.
Code:
shall
mean the Internal Revenue Code of 1986, as amended.
Collateral
Documents:
shall
mean the Intellectual Property Assignments.
Confidential
Information:
shall
mean any information (in any form whatsoever) concerning the Assets that is
not
already generally available to the public.
Consent:
shall
mean any consent, approval, authorization, waiver, permit, grant, franchise,
concession, agreement, license, exemption or order of registration, certificate,
declaration or filing with, or report or notice to, any Person, including but
not limited to any Governmental Authority.
Contract:
shall
mean all agreements and contracts related to the Assets, whether oral or
written.
Intellectual
Property Assets:
shall
have the meaning provided in Section 3.1.4(a)
Intellectual
Property Assignments:
shall
have the meaning provided in Section 4.
IRS:
shall
mean the Internal Revenue Service.
Lien:
shall
mean any mortgage, pledge, hypothecation, right of others, claim, security
interest, encumbrance, lease, sublease, license, occupancy agreement, adverse
claim or interest, easement, covenant, encroachment, burden, title defect,
title
retention agreement, voting, trust agreement, interest, equity, option, lien,
right of first refusal, charge or other restrictions or limitations of any
nature whatsoever, including but not limited to such as may arise under any
Contracts.
Person:
shall
mean any natural person, firm, partnership, association, corporation, company,
limited liability company, trust, business trust, Governmental Authority or
other entity.
Seller:
shall
mean Xxxxxx X. Xxxxxxxxxx.
ARTICLE
I
SALE
AND PURCHASE OF THE ASSETS
1.1 Assets.
Subject
to the terms, conditions and qualifications set forth herein and for the
consideration set forth in Article II hereof, Seller agrees to convey, transfer,
assign and deliver to the Buyer at the Closing all of Seller’s right, title and
interest in and to the Seller’s intellectual property described on Exhibit A
herein (including, without limitation, all goodwill associated with Seller’s
permits, claims, work in process), the Intellectual Property Assets, the
Confidential Information, any and all rights of the Sellers under Contracts
entered into by Seller relating to the Assets (the foregoing items are
collectively referred to herein as the “Assets”).
The
Assets transferred pursuant to this Agreement shall be sold and conveyed to
the
Buyer free and clear of all Liens of any nature or description. The Assets
are
described as follows: (a) pending United States Patent Application Serial No.
09/730,116 titled Active Control Releasable Ballast System for use with Dive
Equipment and (b) European Patent No. EP 1,404,571.
2
ARTICLE
II
THE
CLOSING
2.1 Date.
The
closing of the sale and purchase of the Assets (the “Closing”)
shall
take place on July 31, 2008 or on such date as all the parties hereto may agree
in writing (the “Closing
Date”).
2.2 Consideration.
In
consideration of the sale, assignment, conveyance and delivery by the Seller
of
the Assets to Buyer pursuant to the terms and conditions of this Agreement
on
the Closing Date, the Buyer shall pay to the Seller an aggregate purchase price
of Two Hundred Ninety-Seven Thousand Dollars ($297,000), consisting of (a)
shares of the Buyer’s common stock, and (b) $15,000 cash payment. The shares of
common stock of the Buyer shall have a value equal to $282,000. The number
of
shares issued to the Seller shall be determined based on the average closing
price of the Buyer’s common stock on the OTCBB for the 12 month period ending
three days prior to the Closing Date (the “Shares”).
2.3 Allocation
of Purchase Price.
The
consideration referenced in Section 2.2, above (and any and all other
capitalized costs), shall be allocated among the Assets in accordance with
an
allocation schedule to be prepared by the Buyer in accordance with the Code,
which allocation shall be binding upon the Buyer and the Seller.
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
3.1 Representations
and Warranties of the Seller.
Seller
represents, warrants and covenants to the Buyer as follows:
3.1.1 Authorization,
etc.
The
Seller has the power and authority to execute and deliver this Agreement and
each of the Collateral Documents to which it is a party, to perform fully its
obligations hereunder and thereunder, and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by the Seller of
this Agreement and the Collateral Documents to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, have been
duly
authorized by all requisite legal actions. The Seller has duly executed and
delivered this Agreement and each of the Collateral Documents to which it is
a
party. This Agreement is a legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, except that (a)
such enforcement may be subject to bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws now or hereafter in effect
relating to creditors’ rights and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the exercise of judicial discretion by the court before which
any proceeding therefore may be brought.
3
3.1.2 No
Conflicts, etc.
The
execution, delivery and performance by the Seller of this Agreement and each
of
the Collateral Documents to which it is a party, and the consummation of the
transactions contemplated hereby and thereby, do not and will not conflict
with
or result in a violation of or a default under (with or without the giving
of
notice or the lapse of time or both) (i) any Applicable Law applicable to the
Seller, or the Assets, (ii) the legal authority of the Seller, or (iii) any
Contract or other contract, agreement or other instrument to which the Seller
or
any Affiliate thereof is a party or by which the Seller may be bound or
affected.
3.1.3 Assets.
The
Seller has good title to all the Assets free and clear of any and all
Liens.
3.1.4 Intellectual
Property.
(a) Title.
Exhibit
A contains a correct list of all Intellectual Property that is owned by the
Seller and used in, held for use in connection with, or necessary for the
conduct of, or otherwise material to the Seller’s conveyance of the intellectual
property contemplated by this Agreement (the “Intellectual
Property Assets”).
The
Seller is the sole owner all of the Intellectual Property Assets, free from
any
Liens and free from any requirement of any past, present or future royalty
payments, license fees, charges or other payments, or conditions or restrictions
whatsoever.
(b) Transfer.
Immediately after the Closing, the Buyer will own or otherwise have the right
to
use all the Intellectual Property Assets, free from any Liens.
3.1.5 Investment.
(a) Seller
is
an Accredited Investor as that term is defined in Regulation D promulgated
under
the Securities Act of 1933, as amended (the "Act").
(b) Seller
acknowledges that the Shares are being acquired solely for the account of Seller
and not with a view to, or for resale in connection with, any distribution
in
any jurisdiction where such sale or distribution would be precluded. The Seller
does not intend to dispose of all or any part of the Shares except in compliance
with the provisions of the Act and applicable state securities laws, and
understands that the Shares are being offered pursuant to a specific exemption
under the provisions of the Act, which exemption(s) depends, among other things,
upon the compliance with the provisions of the Act.
3.2 Representations
and Warranties of the Buyer.
The
Buyer represents and warrants to the Seller as follows:
3.2.1 Authorization,
etc.
The
Buyer has the power and authority to execute and deliver this Agreement and
each
of the Collateral Documents to which it is a party, to perform fully its
obligations hereunder and thereunder, and to consummate the transactions
contemplated hereby and thereby. The execution and delivery by the Buyer of
this
Agreement and the Collateral Documents to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, have been
duly
authorized by all requisite action of the Buyer. The Buyer has duly executed
and
delivered this Agreement and each of the Collateral Documents to which it is
a
party. This Agreement is a legal, valid and binding obligation of the Buyer,
enforceable against it in accordance with its terms, except that (a) such
enforcement may be subject to bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium or other similar laws now or hereafter in effect relating
to creditors’ rights and (b) the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to equitable defenses and
to
the exercise of judicial discretion by the court before which any proceeding
therefore may be brought.
4
3.2.2 Organization.
The
Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation with full power and
authority to carry on its business and to own or lease and to operate its
properties as and in the places where such business is conducted and such
properties are owned, leased or operated.
3.2.3 No
Conflicts, etc.
The
execution, delivery and performance by the Buyer of this Agreement and each
of
the Collateral Documents to which it is a party, and the consummation of the
transactions contemplated hereby and thereby, do not and will not conflict
with
or result in a violation of or a default under (with or without the giving
of
notice or the lapse of time or both) (i) any Applicable Law applicable to the
Buyer, or (ii) the certificate of incorporation or bylaws of the Buyer.
3.2.4 Issuance
of the Shares.
The
Shares are duly authorized and, when issued and paid for in accordance with
this
Agreement, will be duly and validly issued, fully paid and nonassessable, free
and clear of all Liens and shall not be subject to preemptive rights or similar
rights of shareholders.
ARTICLE
IV
OBLIGATIONS
OF SELLER AT CLOSING
At
the
Closing, Seller will deliver to the Buyer all documents, certificates and
agreements necessary to transfer to the Buyer good and marketable title to
the
Assets, free and clear of any and all Liens thereon, including without
limitation, assignments with respect to the Intellectual Property Assets (the
“Intellectual
Property Assignments”).
ARTICLE
V
OBLIGATIONS
OF BUYER AT CLOSING
At
the
Closing, the Buyer will deliver to the Seller the consideration provided under
Section 2.2 and copies of the corporate resolutions necessary to authorize
the
execution, delivery and performance of this Agreement and the applicable
Collateral Documents by the Buyer.
5
ARTICLE
VI
MISCELLANEOUS
6.1 Expenses.
Subject
to the terms and provisions of this Agreement, the Seller, on the one hand,
and
the Buyer, on the other hand, shall bear their respective expenses, costs and
fees (including attorneys’ and accountants’ fees) in connection with the
preparation, execution and delivery of this Agreement and compliance
herewith.
6.2 Severability.
If any
provision of this Agreement, including any phrase, sentence, clause, Section
or
subsection is inoperative or unenforceable for any reason, such circumstances
shall not have the effect of rendering the provision in question inoperative
or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever.
6.3 Notices.
All
notices, requests, demands, waivers and other communication required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given if (a)
delivered personally, (b)
mailed
by first-class, registered or certified mail, return receipt requested, postage
prepaid, or (c)
sent by
reputable, nationally recognized next-day or overnight mail or delivery or
(d)
sent by
telecopy or telegram.
(i) if
to the
Seller to: Xxxxxx
X.
Xxxxxxxxxx
000
X.X.
0xx
Xxxxxx
Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
(ii) if
to the
Buyer to: Trebor
Industries, Inc.
000
X.X.
0xx
Xxxxxx
Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
or,
in
each case, at such other address as may be specified in writing to the other
parties hereto.
All
such
notices, requests, demands, waivers and other communications shall be deemed
to
have been received (w)
if by
personal delivery on the date of such delivery, (x)
if by
certified or registered mail, on the fifth (5th)
day
after the mailing thereof, (y)
if by
next-day or overnight mail or delivery, on the day delivered, (z)
if by
telecopy or telegram, on the next day following the day on which such telecopy
or telegram was sent, provided that a copy is also sent by certified or
registered mail.
6.4 Entire
Agreement.
This
Agreement (including the Exhibits and Schedules hereto) the Collateral Documents
(when executed and delivered) constitute the entire agreement and supersede
all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof.
6.5 Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original and all of which shall together constitute one and the same
instrument.
6
6.6 Governing
Law, etc.
This
Agreement shall be governed in all respects, including as to validity, under
the
laws of the State of Florida without giving effect to the conflict of laws
rules
thereof. The Buyer and the Seller hereby irrevocably submit to the jurisdiction
of the courts of the State of Florida and the Federal courts of the United
States of America located in the State of Florida, solely in respect of the
interpretation and enforcement of the provisions of this Agreement and of the
documents referred to in this Agreement, and hereby waive, and agree not to
assert, as a defense in any action, suit or proceeding for the interpretation
or
enforcement hereof or of any such document, that is not subject thereto or
that
such action, suit or proceeding may not be brought or is not maintainable in
said courts or that the venue thereof may not be appropriate or that this
Agreement or any of such document may not be enforced in or by said courts,
and
the parties hereto irrevocably agree that all claims with respect to such action
or proceeding shall be heard and determined in such court in Broward County,
Florida.
6.7 Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and there respective successors and permitted assigns.
6.8 Assignment.
This
Agreement shall be freely assignable or transferable by the Buyer to, and shall
inure to the benefit of, and be binding upon any other corporate entity that
shall succeed to the business presently being operated by the Buyer. This
Agreement shall not be assignable by the Seller without the prior written
consent of the Buyer.
6.9 Amendment;
Waivers, etc.
No
amendment, modification or discharge of this Agreement, and no waiver hereunder,
shall be valid or binding unless set forth in writing and duly executed by
the
party against whom enforcement of the amendment, modification, discharge or
waiver is sought.
IN
WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the
date first above written.
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BUYER:
|
|||
|
TREBOR
INDUSTRIES, INC. a Florida corporation
|
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|
By:
|
/s/
Xxxxxx X. Xxxxxxxxxx
|
||
|
Name:
Xxxxxx X. Xxxxxxxxxx
|
|||
|
Title:
President
|
|||
|
SELLER:
|
|||
|
/s/
Xxxxxx X. Xxxxxxxxxx
|
|||
|
Xxxxxx
X. Xxxxxxxxxx
|
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7
EXHIBIT
A
SCHEDULE
3.1.14
INTELLECTUAL
PROPERTY ASSETS
Patent
Properties
United
States Patent Applications:
|
Appln.
Serial No.
|
Title
|
Filing
Date
|
|
09/730,116
|
Active
Control Releasable Ballast System for use with Dive
Equipment
|
December
5, 2000
|
International
and Other Foreign Patent Applications:
|
Country
|
Patent
No.
|
Title
|
Filing
Date
|
|
United
Kingdom, France, Germany, Italy, Monaco, Netherlands and
Belgium
|
EP
1,404,571
|
Active
Control Releasable Ballast System for use with Dive
Equipment
|
July
27, 2001
|
