ASSET PURCHASE AGREEMENT
Exhibit
99.1
This
Asset Purchase Agreement (“Agreement”) is entered into effective the 1st of
October, 2006, by and among Vivid Learning Systems, Inc., a Delaware corporation
[“Vivid”], with its corporate office at 000 Xxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000 and Nuvotec USA,
Inc.
[“Nuvotec”], with its corporate office at 000 Xxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000.
WHEREAS,
Vivid and Nuvotec have determined that the purchase of certain assets of
Nuvotec
[a
list
thereof attached hereto as Exhibit A]
by
Vivid pursuant to, and subject to all of the terms and conditions of, this
Agreement, is advisable, fair, and in the best interests of Vivid and
Nuvotec;
ARTICLE
I
Section
1.1 The
Purchase.
Upon the
terms and subject to the conditions of this Agreement, at the Effective Time
(as
hereinafter defined), Nuvotec
will sell to Vivid, and Vivid
shall
purchase
and
have
lawful, valid, and indefeasible title to certain assets of Nuvotec,
[reference
attached
Exhibit
A,
hereinafter the “Assets”].
Further, Vivid shall assume the liabilities associated with the Assets
[reference Section 3.2.3]. This Agreement in no manner shall be interpreted
to
be either
a
purchase, in whole or in part, of the Nuvotec
corporate entity or
a
purchase of the shares of Nuvotec.
Section
1.2 Effective
Time of the Purchase.
The
Purchase shall have an effective date of October 1, 2006.
Section
1.3 Closing.
The
Closing of the transactions contemplated by this Agreement shall take place
at
8:00 a.m. local time, at 000 Xxx Xxxxxxx, Xxxxxxxx, Xxxxxxxxxx, xx or
before
December
31, 2006. On the Closing date or as specified below, Vivid shall deliver
all
funds and documents required by this Agreement and Nuvotec shall deliver
a xxxx
of sale for the Assets
in
the form attached as Exhibit B [“Xxxx of Sale”].
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ARTICLE
II
In
consideration
for
the
Assets
sold by
Nuvotec to Vivid, Vivid shall
pay
Nuvotec One Dollar [$1.00].
ARTICLE
III
Section
3.1 Representations
and Warranties of Vivid.
Vivid
hereby represents and warrants to Nuvotec that:
3.1.1 Organization;
Corporate Power and Authority. Vivid
is
a corporation duly and validly organized and existing under the laws of the
State of Delaware. Vivid has full power, legal capacity, and authority to
carry
on its business as it is now conducted, to own, lease, and operate its assets
and properties, and to enter into, perform, and comply with this
Agreement.
3.1.2 Authorization;
Enforceability; No Conflict. The
execution, delivery, and performance of this Agreement by Vivid has been
duly
authorized by all necessary corporate action. This Agreement constitutes
the
valid and binding obligation of Vivid, enforceable in accordance with its
terms
except as limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium, and similar laws affecting creditors generally and
by the
availability of equitable remedies. The execution, delivery, and performance
of
this Agreement will not, and
at
Closing shall not, conflict with, or result in the breach or termination
of, or
constitute a default under, the articles of incorporation or bylaws of Vivid
or
any agreement, commitment, or instrument, judgment, or decree to which Vivid
is
a party or by which Vivid or its properties are bound.
3.1.3 Disclosure.
To the
best knowledge of Vivid, neither this Agreement nor any other
instrument/document delivered to Nuvotec pursuant to this Agreement nor
any
due
diligence documents
or other materials delivered to Nuvotec in connection with this Agreement
contain
any
untrue statement of material fact or omits to state any material fact required
to be stated herein or therein or necessary to make the statements,
representations, or warranties, and information contained herein or therein
to
be not misleading.
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Section
3.2 Representations
and Warranties of Nuvotec.
Nuvotec
hereby represents and warrants to Vivid that:
3.2.1 Organization;
Corporate Power and Authority. Nuvotec
is a corporation duly and validly organized and existing under the laws of
Washington. Nuvotec has full power, legal capacity, and authority to carry
on
its business as it is now conducted, to own, lease, and operate its assets
and
properties, and to enter into, perform, and comply with this
Agreement.
3.2.2 Authorization;
Enforceability; No Conflict. The
execution, delivery, and performance of this Agreement by Nuvotec has been
duly
authorized by all necessary corporate action. This Agreement constitutes
the
valid and binding obligation of Nuvotec, enforceable in accordance with its
terms except as limited by bankruptcy, insolvency, reorganization, fraudulent
transfer, moratorium, and similar laws affecting creditors generally and
by the
availability of equitable remedies. The execution, delivery, and performance
of
this Agreement will not, and
at
Closing shall not, conflict with, or result in the breach or termination
of, or
constitute a default under, the corporate documents of Nuvotec or any agreement,
commitment, or instrument, judgment or decree to which Nuvotec is a party
or by
which Nuvotec or the properties of Nuvotec are bound.
3.2.3 Liabilities.
Nuvotec
has no liabilities or obligations of any nature or kind, whether absolute
or
contingent, known or unknown, accrued or unaccrued, due or to become due
related
to the Assets
being
purchased by Vivid
except
for contractual obligations under the on-going agreements included in the
Assets,
the
personal time bank account amounts for the transferred personnel, and accounts
payable associated with the Assets.
3.2.4 Disclosure.
To the
best knowledge of Nuvotec, neither this Agreement nor any other
instrument/document delivered to Vivid pursuant to this Agreement nor
any
due
diligence documents
or other materials delivered to Vivid in connection with this
Agreement
contain
any
untrue statement of material fact or omits to state any material fact required
to be stated herein or therein or necessary to make the statements,
representations, or warranties, and information contained herein or therein
to
be not misleading.
3.2.5 Title
to Assets.
Nuvotec
is the record and beneficial owner of the Assets
to be
purchased by Vivid from Nuvotec, free and clear of any security interest,
claim,
lien, pledge, encumbrance, or restriction whatsoever in law or in equity,
and
Nuvotec’s delivery and/or granting of access to Vivid on Closing of this
Agreement will convey to Vivid lawful, valid, and indefeasible title thereto,
free and clear of any security interest, claim, lien, pledge, encumbrance,
or
restriction whatsoever.
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Section
3.3 No
Further Representations or Warranties. The
parties hereto acknowledge that due diligence has occurred, and
that,
as
a
result, each party is adequately informed about the other’s past, current, and
planned business activities and strategies. Accordingly, the representations
and
warranties contained in Sections 3.1 and 3.2 of this Agreement are exclusive,
and no further representations or warranties shall be deemed to have been
made
by either party pursuant to this Agreement.
ARTICLE
IV
This
Agreement may be terminated at any time before the Closing by mutual consent
of
the parties.
ARTICLE
V
Section
5.1 Indemnification
of Nuvotec.
Without
in any way limiting or diminishing the warranties, representations, or
agreements herein contained or the rights or remedies available to
Nuvotec for a breach by
Vivid,
Vivid agrees to indemnify, defend, and hold harmless Nuvotec and its designees,
successors, and assigns from and against all losses, judgments, liabilities,
claims, damages, and
expenses (including reasonable attorneys’ fees) of every kind, nature, and
description in existence before or on the Closing, whether known or unknown,
absolute or contingent, joint or several, either arising out of any failure
of
any representation or warranty of Vivid contained in this Agreement to have
been
correct and materially complete when made or arising out of or relating to
the
breach of any covenant or agreement of Vivid contained in this
Agreement.
Section
5.2 Indemnification
of Vivid.
Without
in any way limiting or diminishing the warranties, representations, or
agreements herein contained or the rights or remedies available to
Vivid
for a breach by
Nuvotec, Nuvotec agrees to indemnify, defend, and hold harmless Vivid and
its
designees, successors, and assigns from and against all losses, judgments,
liabilities, claims, damages, and expenses (including reasonable attorneys’
fees) of every kind, nature, and description in existence before or on the
Closing,
whether
known or unknown, absolute or contingent, joint or several, either arising
out
of any failure of any representation or warranty of Nuvotec contained in
this
Agreement to have been correct and materially complete when made or arising
out
of or relating to the breach of any covenant or agreement of Nuvotec contained
in this Agreement.
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ARTICLE
VI
Section
6.1 Confidentiality.
Each of
the parties will treat and hold all of the confidential information of the
other
exchanged as a result of the due diligence and the transactions contemplated
by
this Agreement in
the
highest level of care and confidence. No information of the other party shall
be
released without the prior written approval of said party; provided, however,
the parties may disclose such information as is necessary to comply with
any
information or disclosure requirements of any governmental agency. In such
event, the party to whom the information belongs shall be immediately notified
by the party from whom the information has been requested.
Section
6.2 Amendment.
This
Agreement may not be amended except by an instrument in writing signed on
behalf
of each of the parties hereto.
Section
6.3 Notices.
All
notices, requests, demands, or other communications which are required or
may be
given pursuant to the terms of this Agreement shall be in writing and shall
be
deemed to have been duly given: (i) on the date of delivery if personally
delivered by hand, (ii) upon the third day after such notice is
deposited in the United States mail, if mailed by registered or certified
mail,
postage prepaid, return receipt requested, (iii) on
the day after such notice is sent
by
overnight delivery via
a
nationally recognized overnight express courier, or iv)
upon
written confirmation (other than the automatic confirmation that is received
from the recipient's facsimile machine) of receipt by the recipient of such
notice
if sent
by facsimile transmission:
If
to
VIvid:
c/o
Xxxxxxx Xxxxx & Xxxxx, LLP
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000-0000
Attention:
Xxxxx Xxxxxxxxx
Telephone
No.: 206/
000-0000
Facsimile
No.: 206/
623-7022
If
to
Nuvotec:
Nuvotec
USA,Inc.
000
Xxx
Xxxxxxx
Xxxxxxxx,
XX 00000
Attention:
Xxxxxx Xxxxxx
Telephone
No.: 509/000-0000
Facsimile
No.: 509/943-5528
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Section
6.4
Survival
of Representations.
The
representations and warranties given under this Agreement shall be continuing
and survive the closing of the transaction contemplated by this
Agreement.
Section
6.5 Interpretation.
The
headings contained in this Agreement are for reference purposes only and
shall
not affect in any way the meaning or interpretation of this
Agreement.
Section
6.6 Miscellaneous.
This
Agreement (including the documents and instruments referred to herein):
(i) constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, among the parties,
or any
of them, with respect to the subject matter hereof; (ii) shall not be
assigned by operation of law or otherwise without the prior written consent
of
the other parties hereto; and (iii) shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Washington, exclusive of the conflict of laws provisions thereof.
Section
6.7 Counterparts.
This
Agreement may be executed in two or more counterparts, each of which shall
be
deemed to be an original, but all of which shall constitute one and the same
agreement.
Section
6.8 Parties
in Interest. This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective permitted successors and assigns,
and
nothing in this Agreement, express or implied, is intended to confer upon
any
other person any rights or remedies of any nature whatsoever under or by
reason
of this Agreement.
Section
6.9 Severability.
Any
term
or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of
such invalidity or unenforceability without rendering invalid or unenforceable
the remaining terms and provisions of this Agreement or affecting the validity
or enforceability of any of the terms or provisions of this Agreement in
any
other jurisdiction. If any provision of this Agreement is so broad as to
be
unenforceable, the provision shall be interpreted to be only so broad as
is
enforceable.
Signature
Page Follows
-7-
By:
/s/
Xxxxxxxxxxx
X. Xxxxxxx
Chief
Executive Officer
NUVOTEC
USA,
INC.
By: /s/
Xxxxxx
X.
Xxxxxxxx
Chief
Executive Officer
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EXHIBIT
B
XXXX
OF SALE
For
valuable consideration, Nuvotec USA,
Inc., a
Washington corporation [“Nuvotec”] hereby sells, assigns and transfer to Vivid
Learning Systems, Inc., a Delaware corporation, all of Nuvotec’s right, title,
and interest in and to the personal property described in attached
Exhibit A [“Assets”].
Nuvotec
warrants that title to the Assets is free and clear of any security interest,
claim, lien, pledge, encumbrance, or restriction whatsoever in law or in
equity.
EXCEPT AS SO PROVIDED, NUVOTEC MAKES NO WARRANTIES AND EXPRESSLY DISCLAIMS
ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL WARRANTIES
REGARDING THE VALUE, CONDITION, LOCATION, MERCHANTABILITY, AND FITNESS OF
THE
ASSETS FOR ANY PARTICULAR PURPOSE.
Dated:
December 15, 2006.
NUVOTEC
USA,
INC.
/s/
Xxxxxx
X. Xxxxxxxx
Chief
Executive Officer
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