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EXHIBIT 10.11
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") dated as of November
17, 1999 by and between Xxxxxx Xxxxxxx ("Reckles"), Xxxx X. Xxxxxxx ("Xxxxxxx"),
and Xxxxxxx Xxxxxx ("Xxxxxx") (Reckles, Xxxxxxx and Xxxxxx may collectively be
referred to as "Members") and Peachtree FiberOptics, Inc., a Delaware
corporation ("Purchaser"). Definitions of capitalized terms used in Articles 1
through 7 herein which are not otherwise defined are set forth in Section 8.1.
W I T N E S S E T H:
WHEREAS, the Members are engaged in the capital finance and consulting
business as an unincorporated enterprise (the "Company") having operated
previously as a specialty finance group of First Atlanta Securities and prior to
that as the "JWGenesis Specialty Finance Group" and the Members are desirous of
selling certain of the business assets and assigning certain of its business
liabilities of the Company to Purchaser; and
WHEREAS, in reliance upon the representations, warranties and covenants
of the Company contained in this Agreement, Purchaser desires to acquire
substantially all of the assets of the Company.
NOW, THEREFORE, in consideration of the foregoing premises, and the
representations, warranties, covenants and agreements contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
ARTICLE 1.
PURCHASE AND SALE OF ASSETS
SECTION 1.1 PURCHASE AND SALE. Subject to the provisions of this
Agreement, on the Closing Date (as hereinafter defined), the Company shall sell,
convey, transfer, assign and deliver to Purchaser, and Purchaser shall purchase
and accept, for the consideration hereinafter provided, the respective assets
and rights of the Company described herein (the "Assets"), wherever located and
whether or not shown on the books of account or other records of the Company,
specifically including, but without limitation, the following:
(a) EQUIPMENT. The equipment, machinery, furniture,
fixtures, materials, supplies, consumable items and other assets;
(b) RECEIVABLES. The receivables of the Company not
otherwise owned by the Members prior employer;
(c) MISCELLANEOUS ASSETS. All right title and interest in
and to the tangible and intangible assets of the Company generally described
below (the "Miscellaneous Assets") wherever located and whether or not on the
books of account or other records. including, without limitation:
(i) all assets currently used by the Members in
operating the Company except assets in the personal name of the Members and/or
their spouses;
(ii) equipment leasehold deposits;
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(iii) all patents, technical processes,
compilations, formulations, formulas, strategies, analytic data and models,
and/or other such information developed or used by the Company, or which the
Company has a right to use, and all know-how and trade secrets which are owned
by third parties in which the Company has any interest by license or otherwise,
and all processes, marketing procedures, formulae, supplier, referral, business
source and customer lists and files and records of the Company, all lists of
potential customers, suppliers, referrals and business sources, all data bases
relating to customers, suppliers, referrals and business sources and all other
data of any kind or nature on any and all media, product and sales literature of
the Company, all software owned by the Company and all rights, authority and
privileges enjoyed by the Company in connection with any and all software owned
by third parties, all trade names, trademarks, service marks, copyrights, trade
dress (whether registered or at common law), including, without limitation, the
names "Xxxxxxxxxxxxxxx.xxx, Xxxxxxxxxxxxxxx.xxx, Xxxxxxxxxxxxxxxxx.xxx,
Xxxxxxxxxxxxxxxxx.xxx" (collectively hereinafter referred to as "Intellectual
Property");
(iv) all trade and/or other accounts receivable,
rights to payments and other non-cash consideration payable to the Company other
than those owned by the Member's former employer and all other notes receivable,
miscellaneous accounts and installment contracts;
(v) by Purchaser at its sole discretion on or
before or after Closing, the real estate lease associated with the current
offices of the Company;
(vi) copies of all books and records, wherever
located, all customer, referral and supplier lists or lists of potential
customers, referring parties or suppliers, trade secrets, business source,
technical information, product and sales literature, deposits, prepayments and
other credits, if any, of the Business;
(vii) unless rejected by Purchaser at its sole and
absolute discretion at any time on or before or after Closing, all insurance
policies owned or possessed by the Company;
(viii) the exclusive use of the names
"Xxxxxxxxxxxxxxx.xxx, Xxxxxxxxxxxxxxx.xxx, Xxxxxxxxxxxxxxxxx.xxx,
Xxxxxxxxxxxxxxxxx.xxx" and all other trade names of the Company;
(ix) all licenses, permits, approvals and all
applications therefor of the Company with all Governmental Bodies and other
regulatory authorities relating to the Company;
(x) all interests and rights of the Company to
enforce all Contractual Rights and to obtain injunctive relief and damages with
respect to any and all confidentiality and non-competitive agreements and
restrictive covenants against any party; and
(xi) any and all other assets, properties,
business and goodwill of the Company of any kind, character and description,
whether tangible or intangible, real, personal or mixed, and wherever located or
by whomever possessed, including, but not limited to: telephone numbers and
listings, maintenance operations, rights and claims to refunds, prepaid
expenses, customer deposits, deposits by the Company with any other person,
policies and procedures, discounts and adjustments of every kind, express or
implied warranties, and all information and records (including, without
limitation, personnel records to the extent not prohibited by law) acquired for,
used in or in any way related to the Business.
The sale of the Assets shall be made free and clear of all liabilities
and obligations of any kind or nature. Purchaser shall not assume any
liabilities or obligations whatsoever of the Company. All obligations and
liabilities of the Company, whether existing or hereafter arising, shall remain
the sole responsibility of the Members (hereinafter referred to as "Retained
Liabilities"). Purchaser shall have no responsibility or obligation whatsoever
for any Retained Liabilities or any other liabilities relating to, arising out
of or in connection therewith.
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SECTION 1.2 PURCHASE PRICE.
(a) The aggregate purchase price (the "Purchase Price") of the
Assets shall be 773,500 shares of the Purchasers common stock (the "Shares")
payable at Closing and they are the only shares common shares of the Purchaser
referenced in the Employment Agreements and Schedules thereto by and between the
Members and the Purchaser dated as of the date of this Agreement (collectively,
the "Employment Agreements"). The Shares shall be subject to escrow and
divestment pursuant to Paragraph 4 (b) and other applicable terms and conditions
of the Employment Agreements.
(b) The Shares referenced herein above shall be allocated to the
Members with such allocation described in Paragraph 4 (b) of the respective
Employment Agreements as follows:
(i) Xxxx Xxxxxxx: 400,000 Shares
(ii) Xxxx Xxxxxxx 300,000 Shares
(iii) Xxxxx Xxxxxx: 73,500 Shares
ARTICLE 2.
CLOSING
SECTION 2.1 THE CLOSING. The consummation of the transactions contemplated by
this Agreement (the "Closing") shall take place simultaneous at the offices of
the Purchaser. The date of the Closing shall be referred to as the "Closing
Date".
SECTION 2.2 DELIVERIES AT CLOSING. At the Closing:
(a) There shall be delivered to the Company;
(i) Employment Agreements executed by Purchaser and each
of Xxxxxxx, Reckles and Xxxxxx, respectively;
(ii) Stock Option Agreements executed by Purchaser and
each of Xxxxxxx, Reckles and Xxxxxx, respectively;
(b) There shall be delivered to Purchaser:
(i) Employment Agreements executed by Xxxxxxx, Reckles
and Xxxxxx, respectively;
(ii) Stock Option Agreement executed by Xxxxxxx, Reckles
and Xxxxxx, respectively;
(iii) All written consents and approvals necessary or
required to transfer all of the Assets and to consummate the transactions
contemplated hereby in form reasonably satisfactory to Purchaser's counsel;
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ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company, Xxxxxxx, Reckles and Xxxxxx jointly and severally
represent and warrant to Purchaser as follows:
SECTION 3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. The Members have full
power, capacity and authority to execute and deliver this Agreement and each
other Transaction Document to which it is a party and to consummate the
transactions contemplated hereby and thereby (the "Contemplated Transactions").
The execution and delivery of this Agreement and the consummation of the
Contemplated Transactions to which the Company is a party have been duly and
validly authorized by the Company and no other proceedings on the part of the
Company (or any other person) are necessary to authorize the execution and
delivery by the Company of this Agreement or the consummation of the
Contemplated Transactions to which the Company is a party. This Agreement and
the other Transaction Documents to which the Company is a party have been duly
and validly executed and delivered by each of the Company and (assuming the
valid execution and delivery thereof by the other parties thereto) constitute
the legal, valid and binding agreements of the Company enforceable against the
Company in accordance with their respective terms.
SECTION 3.2 LIABILITIES. There has been (i) no material adverse change
in the Assets or Liabilities, or in the Business or condition of the Company,
financial or otherwise, or the result of operations of the Company, and (ii) no
change in the Assets or Liabilities or in the Business or condition of the
Company, financial or otherwise, or in the results of operations or prospects of
the Company, except in the ordinary course of business; and (iii) no factor or
condition exists or, to the Company's knowledge and belief, is contemplated or
threatened, which might cause such a change in the future.
SECTION 3.3 ABSENCE OF CERTAIN CHANGES. The Company has conducted the
Business in the ordinary course consistent with past practices and there has not
been: (a) any material adverse change in the Condition of the Business or any
event, occurrence or circumstance that could reasonably be expected to cause
such a material adverse change; (b) any transaction or Contract with respect to
the purchase, acquisition, lease, disposition or transfer of any Assets or to
any capital expenditure (in each case, other than in the ordinary course of the
Business in accordance with past practice), in excess of $5,000; (c) any change
in any method of accounting or accounting practice by the Company; (d) any
material adverse change in the relationships of the Company with its customers,
suppliers and vendors; or (e) except in the ordinary course of the Business,
consistent with past practice, any payment, directly or indirectly, of and
Liability before or after the same became due in accordance with its terms.
SECTION 3.4 PROPERTIES. The Company has good and marketable title to
all of the Assets, including, without limitation, personal property used in the
Business, free and clear of all Liens. The equipment and other tangible personal
property constituting a part of the Assets (whether owned or leased), are in
good condition and repair (subject to normal wear and tear) and are adequate in
quantity and quality for the operation of the Business as presently conducted.
SECTION 3.5 CONTRACTS.
Members have provided the Purchaser with an accurate and
complete list of all material Contracts to which the Company is a party or by
which it or its Assets are bound or subject. True and complete copies of all
written Contracts of the Company and summaries of the material provisions of all
oral Contracts so listed have been delivered to Purchaser.
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SECTION 3.6 INTANGIBLE PROPERTY. The Company has not been notified by
any third party that the Intellectual Property Rights infringe upon or conflict
with the rights or intellectual property of third parties. There are no
outstanding claims, liens, encumbrances, options, licenses or agreements of any
kind relating to the Intellectual Property Rights, nor is the Company bound by
or party to any options, licenses or agreements of any kind with respect to the
patents, trademarks, service marks, trade names, copyrights, trade secrets,
licenses, information, proprietary rights and processes of any other person or
entity. The Company has full title and ownership of all Intellectual Property
Rights without any conflict with or infringement of the rights of others. The
Company has not infringed or violated in any way any valid patent, trademark,
trade name or copyright of others, nor has the Company received any notice,
claim or protest respecting any such violation or infringement. At Closing, the
Purchaser will have sole right, title and interest in and to the Intellectual
Property Rights free and clear of any claims by any person.
SECTION 3.7 CLAIMS AND PROCEEDINGS. There are no outstanding Orders of
any Governmental Body against or involving the Company or the Business. There
are no actions, suits, claims or counterclaims or legal, administrative or
arbitral proceedings or investigations (collectively, "Claims") (whether in
respect thereof are covered by insurance), pending or, to the knowledge of the
Company, threatened on the date hereof, against or involving the Company, any of
the Company's Assets or the Business.
SECTION 3.8 COMPLIANCE WITH LAWS. The Company is not in violation of
any order, judgment, injunction, award, citation, decree, consent decree or writ
applicable to the Company (collectively, "Orders"), or any law, statute, code,
ordinance, rule, regulation or other requirement (collectively, "Laws"), of any
government or political subdivision thereof, whether federal, state, local or
foreign, or any agency or instrumentality of any such government or political
subdivision, or any court or arbitrator (collectively, "Governmental Bodies")
affecting its Assets or the Business.
SECTION 3.9 FINDERS FEES. There is no investment banker, broker, finder
or other intermediary which has been retained by or is authorized to act on
behalf of the Company who might be entitled to any fee or commission from the
Company upon consummation of the Contemplated Transactions.
SECTION 3.10 APPROVALS. The Members and managers of the Company have
(i) determined that the Contemplated Transactions are fair to and in the best
interests of the Company and the Members, (ii) approved the Contemplated
Transactions, and (iii) resolved to execute and deliver this Agreement.
SECTION 3.11 ACCURACY OF INFORMATION. No representation, statement or
information made or furnished by the Members to Purchaser, in this Agreement,
the Transaction Documents and the schedules hereto and thereto contains, or
shall contain, any untrue statement of fact or omits or shall omit any fact
necessary to make the information contained in such representation, or
information not misleading, and, there are no obligations, contingent or
otherwise, of the Company that are not disclosed herein or in any schedule to
this Agreement.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser makes the following representations and warranties to the
Company, Xxxxxxx, Reckles and Xxxxxx:
SECTION 4.1 ORGANIZATION AND GOOD STANDING. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Florida and is duly qualified to do business in all states where its
activities make such qualification necessary.
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SECTION 4.2 AUTHORITY. Purchaser has full power and has taken all
corporate action necessary to execute, deliver and perform this Agreement and to
carry out the transactions contemplated hereby. The execution, delivery and
performance of the obligations of Purchaser under this Agreement has been, or
will be on the Closing Date, duly and effectively authorized by Purchaser's
Board of Directors and no further corporate authority therefor or approval
thereof is required by law.
SECTION 4.3 CONFLICTS. The execution, delivery and performance of this
Agreement shall not conflict with or result in the breach or violation of the
Purchaser's Articles of Incorporation, By-Laws or any contract, agreement,
lease, commitment, license, permit, authorization or concession to which it is a
party or by which it is bound, or any statute, rule, regulation, ordinance,
code, order, judgment, writ, injunction, decree or award of any court or
administrative or governmental body, or constitute an event which with notice,
lapse of time, or both, would result in any such breach, or violation and which
would have a material adverse effect on the Purchaser.
SECTION 4.4 CHARTER DOCUMENTS AND CORPORATE RECORDS. The Company has
heretofore delivered to Purchaser true and complete copies of the Articles of
Incorporation and Bylaws, as in effect on the date hereof.
ARTICLE 5.
CONDITIONS PRECEDENT TO CLOSING
SECTION 5.1 CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. All
obligations of the Company hereunder are subject, at the option of the Company,
to the fulfillment prior to or at the Closing of each of the following
conditions:
(a) PERFORMANCE. Purchaser shall have performed and complied
in all material respects with all agreements, obligations and covenants required
by this Agreement to be performed or complied with by it at or nor to the
Closing Date.
SECTION 5.2 CONDITIONS TO THE OBLIGATIONS OF PURCHASER. All obligations
of Purchaser hereunder are subject, at the option of Purchaser, to the
fulfillment prior to or at the Closing of each of the following further
conditions,
(a) PERFORMANCE. The Company shall have performed and complied
in all respects with all agreements, obligations and covenants required by this
Agreement to be performed or complied with by it or him at or prior to the
Closing Date.
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ARTICLE 6.
SURVIVAL
SECTION 6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
(a) Notwithstanding any right of Purchaser fully to
investigate the affairs of the Company and notwithstanding any knowledge of
facts determined or determinable by Purchaser pursuant to such investigation or
right of investigation, Purchaser has the right to rely fully upon the
representations, warranties, covenants and agreements of Xxxxxxx, Reckles and
Xxxxxx contained in this Agreement, or listed or disclosed on any Schedule
hereto or in any instrument delivered in connection with or pursuant to any of
the foregoing. All such representations, warranties, covenants and agreements
shall survive the execution and delivery of this Agreement and the Closing
hereunder.
(b) All representations, warranties, covenants and agreements
of Purchaser shall survive the execution and delivery of this Agreement and the
Closing hereunder.
ARTICLE 7.
MISCELLANEOUS PROVISIONS
SECTION 7.1 NOTICES. All notices which are permitted or required under
this Agreement shall be in writing and delivered by hand, by verified overnight
delivery, or by certified mail, postage prepaid, addressed as follows, or to
such other person or address as may be designated by written notice by one party
to the other parties:
If to Purchaser: Peachtree Fiberoptics, Inc.
0000 XXX Xxxxxxxxx, Xxxxx 000
Xxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
Attention: President
With a copy to: Xxxxxxx X. Xxxxxxxxx, Esq.
Cohen, Berke, Xxxxxxxxx,
Xxxxxx & Kondell, P.A.
Terremark Centre, 19th Floor
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
If to the Members: At the address provided under their respective
Employment Agreements
Notices shall be deemed delivered when delivered by the carrier as provided
above, as determined by the carrier receipt and/or confirmation of delivery
notice. The addresses set forth above shall be conclusive for all purposes
unless and until written notice of a change of address shall be sent to the
parties herein.
SECTION 7.2 OFFSET. Notwithstanding anything contained herein to the
contrary and in addition to, without limiting any of Purchaser's other rights
and remedies hereunder, Purchaser may, at its option, deduct, withhold and/or
otherwise offset the sum of any and all Losses from or against any payments due
or payable to an Indemnifying Party hereunder or otherwise in the event of any
Losses incurred by Purchaser for breach of this Agreement by the Members.
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SECTION 7.3 NO ASSIGNMENT. This Agreement may not be assigned by either
party without the prior written consent of the other party.
SECTION 7.4 SEVERABILITY. Any provision of this Agreement which is
invalid or unenforceable shall be ineffective to the extent of such invalidity
or unenforceability, without affecting in any way the remaining provision
hereof.
SECTION 7.5 GOVERNING LAW. This Agreement is deemed to have been made
in the State of Florida and its interpretations, its construction and the
remedies for its enforcement or breach are to be applied pursuant to, and in
accordance with, the laws of the State of Florida for contracts made and to be
performed in that State.
SECTION 7.6 SCHEDULES. It is acknowledged and agreed that all exhibits
and schedules to this Agreement are an integral part hereof and are
incorporated, in total, by reference fully as a part of this Agreement in all
respects.
SECTION 7.7 INCORPORATION AND AMENDMENT. This writing constitutes the
entire Agreement of the parties superseding and extinguishing all prior
agreements or understandings, representations or warranties, relating to the
subject matter hereof. This Agreement may not be modified, amended or terminated
except by written agreement specifically referring to this Agreement signed by
the parties hereto.
SECTION 7.8 REMEDIES. Each of the parties hereto agrees that any
dispute arising among the parties hereto shall be settled by a court of
competent jurisdiction in accordance with applicable law and that the parties
shall be free to petition the court for all appropriate legal and/or equitable
remedies inclusive of specific performance and injunctive relief.
SECTION 7.9 WAIVER. No waiver of any breach or default hereunder shall
be considered valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any subsequent breach or
default of the same or similar nature.
SECTION 7.10 HEADINGS. The paragraph headings contained herein are for
the purpose of convenience only and are not intended to define or limit the
contents of said paragraphs.
SECTION 7.11 FURTHER ACTION. Each party hereto shall take such further
action and shall execute and deliver such further documents as may be reasonably
requested by the other party in order to carry out the provisions and purposes
of this Agreement.
SECTION 7.12 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which taken together shall be deemed one original.
SECTION 7.13 VENUE. The parties hereto mutually agree that proper venue
with respect to any dispute arising hereunder, related hereto and connected
herewith shall be Broward County, Florida.
SECTION 7.14 NO THIRD-PARTY BENEFICIARY. Except as otherwise provided
herein, nothing expressed or implied in this Agreement is intended, or shall be
construed, to confer upon or give any person other than the parties hereto and
their respective heirs and permitted successors or assigns hereunder any rights
or remedies under or by reason of this Agreement.
SECTION 7.15 REMEDIES CUMULATIVE. No remedy made available by any of
the provisions of this Agreement is intended to be exclusive of any other
remedy, each and every remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity.
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SECTION 7.16 PUBLIC ANNOUNCEMENTS. Neither party shall, without prior
written consent from the other, issue any press release or furnish any written
statement to its employees or to the public concerning the transactions
contemplated by this Agreement.
ARTICLE 8.
DEFINITIONS
SECTION 8.1 DEFINITIONS. The following terms, as used herein, have the
following meanings:
"AFFILIATE" of any person means any other person directly or
indirectly through one or more intermediary persons, controlling, controlled by
or under common control with such person.
"BUSINESS" shall mean the ownership and operation of the
Assets comprising the business operations of the Company.
"CONTRACT" shall mean any contract, agreement, indenture,
note, bond, lease, conditional sale contract, mortgage, license, franchise,
instrument, commitment or other binding, arrangement, whether written or oral.
The term "KNOWLEDGE" with respect to (a) any individual shall
mean actual knowledge and (b) any entity shall mean the actual knowledge of the
directors and the executive officers of such entity; and "KNOWS" has a
correlative meaning.
"LIABILITY" shall mean any direct or indirect indebtedness,
liability, assessment, claim. loss, damage, deficiency, obligation or
responsibility, fixed or unfixed, xxxxxx or inchoate. liquidated or
unliquidated, secured or unsecured, accrued, absolute, actual or potential,
contingent or otherwise (including any liability under any guaranties, letters
of credit, performance credits or with respect to insurance loss accruals).
"LIEN" shall mean, with respect to any Asset, any mortgage,
lien (including mechanics, warehousemen, laborers and landlords liens), claim,
pledge, charge, security interest, preemptive right, right of first refusal,
option, judgment, title defect, or encumbrance of any kind in respect of or
affecting such Asset.
"PERSON" or "PERSON" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity, including a government or political subdivision or an agency or
instrumentality thereof.
"REGULATORY ACTIONS" shall mean any claim, demand, action,
suit or proceeding brought or instigated by any Governmental Body in connection
with any Environmental Law, Including, without limitation, civil, criminal
and/or administrative proceedings, whether or not seeking costs, damages,
penalties or expenses.
"TRANSACTION DOCUMENTS" shall mean, collectively, this
Agreement, and each of the other agreements and instruments to be executed and
delivered by all or some of the parties hereto in connection with the
consummation of the transactions contemplated hereby.
SECTION 8.2 INTERPRETATION. Unless the context otherwise requires, the
terms defined in Section 8.1 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural forms of
any of the terms defined herein. When a reference is made in this Agreement to
Sections, such reference shall be to a Section of this Agreement unless
otherwise indicated. 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. Whenever the words "include", "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation."
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first written above.
PURCHASER:
PEACHTREE FIBEROPTICS, INC., a Delaware
corporation
By: /s/ XXXXXX XXXXXXX
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Title: CEO
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MEMBERS
/s/ XXXX X. XXXXXXX
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Xxxx X. Xxxxxxx
/s/ XXXXXX XXXXXXX
-------------------------------------
Xxxxxx Xxxxxxx
/s/ XXXXXXX XXXXXX
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Xxxxxxx Xxxxxx
