EXHIBIT 2.1
PURCHASE AND SALE AGREEMENT
for
DTC Data Technology Assets and Certain Liabilities
This agreement is made effective December 31, 1999, by and between Xxxxx
Xxx ("Buyer"), and Photonics Corporation, 0000 Xxxxxxxxx Xxx., Xxxxxxxxx, XX
00000, a California corporation ("Seller").
Whereas, Seller is operating under an plan of liquidation for the benefit
of its debt holders and shareholders: and
Whereas, DTC Data Technology ("DTC") is an operating division of Seller,
but is not a core asset for reorganization; and
Whereas, Seller has received two offers to purchase the inventory of
DTC, consisting of two lots, for $ 14,500 and $ 5,100 , respectively, both
offers dated July 29, 1999, and attached hereto as Exhibit "A"; and
Whereas the line of credit established by Seller against the accounts
receivable 's of DTC has been reduced to the loan balance of $22,760 against
an Accounts Receivable of $531, 816 at end of October 1999 after an auditing
by the bank, without the guarantee of Buyer but conditioned upon an advance
of $ 15,000 by Buyer as further described in Exhibit "B" attached; and
Whereas, Seller has received one purchase offer for the name, trademark
and other intangible assets of DTC in an amount equal to $ 50,000 which offer
has expired under its own terms , as further described in Exhibit "C" attached;
and
Whereas Buyer is a major shareholder of Seller, the former CEO, and has
been a member of the Board of Directors and now serves in the capacity of
Liquidation Trustee; and
Whereas Seller has entered into an acquisition/merger agreement with
XxxxXxxxx0Xxxx.xxx (RE4S) as of February 2, 2000; And
Whereas, after proper due diligence, the Board of Directors of
XxxxXxxxxx0Xxxx.xxx has determined that the DTC assets are not core assets for
the purpose of the merger and future operations.
Now therefore, in consideration of the mutual promises and conditions
contained in this agreement and for valuable consideration, the receipt and
adequacy of which are hereby acknowledged and confessed, the parties hereto
agree as follows:
1.0 Incorporation of DTC. Seller agrees to incorporate its operating
division, DTC as follows:
(a) Incorporate the business owned by Seller, being conducted under the
business name DTC, located at 0000 Xxxxxxxxx Xx. Xxxxxxxxx,
Xxxxxxxxxx into a new entity ("the Business");
(b) The Business shall include as its assets and liabilities the
following:
(i) all of the stock in trade, inventory, and merchandise of DTC as
described in Exhibit "D" attached to this agreement;
(ii) all of the fixtures, equipment, and other tangible assets of DTC as
shown on attached Exhibit "E";
(iii) any leasehold interest owned by Seller under the lease for the
premises where DTC is located;
(iv) all the accounts receivable, trade, business name, trademark,
patents, goodwill, and other tangible or intangible assets of DTC; and
(v) all business operating liabilities incurred by DTC after December
31, 1999 save and except for any liabilities relating to any claim, lawsuit,
judgment or other civil action that was commenced or relates to the time period
prior to December 31, 1999. Such liabilities are listed in Exhibit "F" attached
hereto.
(vi) All shares owned by Seller of DTC Hong Kong, a corporation
incorporated in the special district of Hong Kong, China.
1.1 Stock Dividend. Following the incorporation of the Business, Seller
shall declare a stock dividend to its shareholders, which shall be comprised of
ten percent (10%) of the shares of the Business. Seller shall be responsible
for the issuance of the appropriate shares to its shareholders and shall use
the date of the incorporation of the Business as the "record date" for the
determination of the recipients of the stock dividend.
2.0 Purchase Price. The total purchase price ("Purchase Price") to be
paid by Buyer to Seller for ninety percent (90%) of the shares of the
Business shall be $ 75,000 cash.
3.0 Approval by the Shareholders of Seller. The obligations of both the
Buyer and Seller are subject to the ratification and approval of the closing of
this Agreement by the shareholders and board of directors of Seller. Such
approval shall be obtained by the calling of a special meeting of the
shareholders and a special meeting of the board of directors of Seller. The
ratification and approval of this Agreement shall be listed as part of the
agenda in the "Notice and Call for a Special Meeting of the Shareholder of
Photonics Corporation". At the special meeting of the shareholders, this
Agreement shall be read into the minutes of the meeting and its ratification
and approval shall be voted upon by the shareholders. The procedure for such
ratification and approval of the closing of this agreement shall be in
accordance with the Articles and By-laws of Photonics Corporation. The
shareholders shall elect a board of directors that shall then approve this
Agreement.
4.0 Closing. The closing of the sale and purchase of the Business ("xxx
Xxxxxxx") shall take place at the law firm of Xxxxx Xxxxxxx Xxxxxx, PC, on or
before March 31, 2000, or at such other place and date as the parties may agree
to in writing.
At the closing the Seller shall:
(a) Transfer ninety percent (90%) of the shares of the Business to Buyer;
(b) execute the Assignment of Assumed Name Certificate attached as Exhibit
"H" to this agreement;
(c) execute any other documents necessary to finalize this Agreement.
At the Closing the Buyer shall:
(a) pay the Purchase Price to Seller; and
(b) execute any other documents necessary to finalize this Agreement.
The liabilities and obligations incurred by Seller in connection with the
Business prior to December 31, 2000 are assumed by Seller, except the lease
obligation of the office located at 0000 Xxxxxxxxx Xx. Xxxxxxxxx, Xx.
Liabilities and obligations relating to DTC or the Business incurred after
December 31, 1999 will be assumed by the Buyer, except those derived from
liabilities and obligations incurred before December 31, 1999.
5.0 Conditional Agreement. In the event that the shareholders and the
board of directors of the Seller fail to ratify and approve this agreement,
this agreement shall be null and void and the Buyer will have a right of first
refusal for any sale of the assets of Photonics Corp. Seller shall refund the
$75,000, less any costs paid relating to the pending sale, immediately upon any
such failure to ratify before June 30, 2000 and within three business days
thereafter, Buyer shall transfer the 90% of the shares of the Business to
Seller. Pending shareholder and board of director approval of Seller, Buyer
shall continue to operate the Business as he in his sole discretion deems to be
in the shareholders best interests, provided, Buyer shall not incur any debt
in the name of the Business or distribute any assets of the Business.
6.0 Choice of Law. This Agreement shall be governed by the laws of the
State of California.
AGREED the first date stated above.
SELLER: BUYER:
Photonics Corporation Xxxxx X. Xxx
/s/ Xxxxx Xxxxxxxx /s/ Xxxxx X. Xxx
By: Xxxxx Xxxxxxxx, Secretary
/s/ Xxxxx X. Xxx
By: Xxxxx X. Xxx, Consultant & Former CEO
