EXHIBIT 10.1
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement") is made as of the 1st day
of April, 2002, by and between XXXXXXXXXX INTERNATIONAL GROUP, INC., a Maine
corporation with a principal place of business in Falmouth, Maine (the "Buyer");
and PRESTO LIFTS, INC., a Rhode Island corporation with a principal place of
business in Pawtucket, Rhode Island (the "Seller").
WITNESSETH:
WHEREAS, the Seller is engaged in the business of, among other things,
manufacturing, and selling to material handling dealers and industrial
catalogues, lift tables, stackers, pallet trucks and related parts
(collectively, the "Seller's Business"); and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, the
Seller's Business and substantially all of the Seller's assets; and
WHEREAS, the Seller is the debtor in the bankruptcy case (the Case")
bearing case number 02-11154 now pending before the United States Bankruptcy
Court for the District of Rhode Island (the "Court"); and
WHEREAS, the Court has signed an Order dated March 30, 2002 (the "Order")
in the Case approving the sale of the Seller's Business and substantially all of
the Seller's assets to the Buyer on the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, and for other good, fair and valuable consideration, the
receipt, reasonable equivalency and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1. DEFINITIONS
The following terms shall have the following meanings when used in this
Agreement:
1.1 "Purchased Assets" means all right, title and interest in and to all
of the following assets of the Seller as of the Closing Date, including, without
limitation, those items listed on Schedule 1.1 attached hereto:
(a) all fixed and movable equipment, machinery, furniture, fixtures,
rolling stock, tools, tooling, accessories, parts, leasehold improvements,
computer equipment and hardware, computer software, and other tangible personal
property of the Seller used, intended to be used, or otherwise associated with,
the Seller's Business;
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(b) all inventories used, intended to be used, or otherwise related to
the Seller's Business including, without limitation, raw materials,
finished goods, work in process, parts, goods in transit, packaging and shipping
materials, supplies and accessories;
(c) all leases of fixtures, tangible personal property and motor
vehicles, used by the Seller, and approved by Buyer on or before Closing,
and all rights of the Seller under such leases, except for such leases which by
their terms may not be assigned or transferred without the consent of the lessor
and for which the Seller does not obtain appropriate consents to allow the
transfer of its interest therein to Buyer;
(d) all outstanding purchase orders and sales orders, contracts or
agreements with customers of the Seller for the sale and distribution of goods
and/or services in connection with the Seller's Business (collectively, the
"Customer Orders"), and all purchase orders with vendors and suppliers in
connection with the Seller's Business;
(e) all license agreements, distributor agreements, franchise agreements,
service contracts, maintenance agreements, investments in buying co-ops and
other contracts, agreements and commitments, whether written or oral, to which
the Seller is a party and which are directly related, are used, are intended to
be used, or are related to or necessary for, the conduct of the Seller's
Business in the ordinary course and which may be transferred to Buyer, either by
their terms or for which the Seller has obtained the consent to such transfer
from all parties required to permit such transfer. Such shall include, without
limitation, all contracts, bids, proposals and offers for the sale of inventory
and all outstanding purchase orders and sales orders, and all rights of the
Seller under all of the foregoing (collectively, the "Contracts");
(f) all mailing, customer, vendor and supplier lists, names and addresses
of customers, vendors and suppliers, and all other information related to
customers, vendors and suppliers of the Seller in the Seller's Business,
including, but not limited to, sales and business records, invoices, research
and development files, and customer credit information;
(g) all files, books and records (including all employee records related
to the Seller's Business), whether written, on magnetic tapes, disks or other
media, and all essential business information wherever located;
(h) all approvals, permits, licenses, orders, registrations,
certificates, variances, exemptions and similar rights obtained from
governments, governmental agencies or third parties (to the extent assignable);
(i) the Seller's Intellectual Property (as defined below) used, intended
to be used, or related to the Seller's Business;
(j) all trade accounts receivable;
(k) all prepaid expenses, accounts, and other receivables to the extent
the same may be assigned to the Buyer;
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(l) all good will associated with the Seller's Business; and
(m) all other assets of the Seller (other than leases of real estate)
used, or intended to be used, or related to, the Seller's Business, or required
to maintain the Seller's Business as a going concern.
1.2 "Affiliate" means TBM Holdings, Inc. and any direct or indirect
subsidiary or affiliate of TBM Holdings, Inc.
1.3 "Closing" means the delivery of the documents necessary to transfer
the Purchased Assets to the Buyer as provided in this Agreement.
1.4 "Closing Date" means April 1, 2002.
1.5 "Intellectual Property" means (a) all trade secrets and confidential
business information (including customer and supplier compositions,
manufacturing and production processes and techniques, technical data, designs,
engineering and other drawings, specifications, pricing and cost information,
and business and marketing plans and proposals), (b) all trademarks, service
marks, trade dress, logos, trade names, and corporate names, together with all
translations, adaptations, derivations, and combinations thereof and including
all goodwill associated therewith, and all applications, registrations, and
renewals in connection therewith, (c) all inventions (whether patentable or
unpatentable and whether or not reduced to practice), all improvements thereto,
and all patents, patent applications, and patent disclosures, together with all
reissuances, continuations, continuations-in-part, revisions, extensions, and
reexamination thereof, (d) all copyrightable works, all copyrights, and all
applications, registrations, and renewals in connection therewith, (e) all
computer software (including data and related documentation), (f) all other
proprietary rights, and (g) all copies and tangible and intangible embodiments
of any of the foregoing (in whatever form or medium).
1.6 "Lender" means Bank One, NA, a national banking association.
1.7 "Long Reach" means Long Reach, Inc., a corporation duly organized and
existing under the laws of the State of Delaware with its principal place of
business in Houston, Texas.
1.8 "Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company or partnership,
a trust, a joint venture, an unincorporated organization, or a governmental
entity (or any department, agency, or political subdivision thereof).
1.9 "Purchase Price" means the sum of Four Million and 00/100 Dollars
($4,000,000.00), as the same may be adjusted pursuant to Section 2.2 of this
Agreement.
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ARTICLE 2. PURCHASE AND SALE
2.1 Purchase and Sale of Assets. Upon and subject to the terms and
conditions of this Agreement, the Buyer agrees to purchase from the Seller, and
the Seller agrees to sell to the Buyer, the Purchased Assets. At the Closing,
the Seller will transfer the Purchased Assets to the Buyer, free and clear of
all liens, security interests, claims, charges, encumbrances and interests as
provided and authorized in the Order.
2.2 Purchase Price. Subject to the adjustments set forth in this Section
2.2, the Buyer agrees to pay the Purchase Price to the order of the Lender at
the Closing for the Purchased Assets. The amount of the Purchase Price shall be:
(a) decreased by of the total of all payments upon the Seller's trade accounts
receivable received by the Seller or by the Lender, during the period from and
including March 25, 2002 through and including March 29, 2002; and (b) increased
by the amount of all new accounts receivable created through shipments made in
the ordinary course of business during that period. All payments upon trade
accounts receivable received by the Seller or the Lender on or before March 29,
2002 shall not be included in the Purchased Assets. All such payments received
after March 29, 2002 shall be included in the Purchased Assets and the Seller
and the Lender will immediately forward any payments that they, or either of
them, receive on or after that date to the Buyer. The Purchase Price, as so
adjusted, shall be paid by wire transfer to the Lender in Dallas, Texas, in
immediately available funds, pursuant to wire instructions provided by the
Lender to the Buyer.
2.3 The Closing. The Closing shall take place at the offices of the
Buyer's counsel and the Seller's counsel on or before the Closing Date at such
time as the Seller and the Buyer may mutually determine. In no event shall the
Closing occur later than the Closing Date unless the parties hereto otherwise
mutually agree in writing.
2.4 Deliveries at the Closing. At the Closing, the Seller, as the
debtor-in possession in the Case, will deliver to the Buyer:
a. A Xxxx of Sale (the "Xxxx of Sale") in the form attached as Schedule
2.4 hereto;
b. All other documents which shall be necessary and sufficient to vest in
the Buyer all of the Seller's right, title and interest in and to the Purchased
Assets; and
c. All other documents necessary and sufficient to permit the Buyer to
file and/or record evidence of the transfer of the Purchased Assets in any
offices where such may be required to perfect or provide notice of that
conveyance.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
OF SELLER
Except as otherwise explicitly set forth in this Agreement, or in the
agreement referenced in Section 6.9 of this Agreement, the sale of the Purchased
Assets to the Buyer is "AS-IS, WHERE-IS" and the Seller makes no warranties,
express or implied, in connection with the Purchased Assets or its sale of the
same to the Buyer. Without limiting the generality of the
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foregoing, the Seller hereby DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR
OF FITNESS FOR A PARTICULAR PURPOSE with respect to the Purchased Assets or its
sale of the same to the Buyer.
ARTICLE 4. NO ASSUMPTION OF LIABILITIES BY BUYER
Except as may otherwise be explicitly provided in this Agreement, Buyer
shall not assume any debts, liabilities, or obligations of the Seller of any
nature, whether present or future, fixed or contingent, disclosed or
undisclosed, including, but not limited to, any and all liabilities for any
claims, debts, defaults, warranties, or duties of the Seller of any kind.
ARTICLE 5. TERMINATION
5.1 Termination. If the Closing has not occurred on or before 5:00 p.m.,
EST, on April 1, 2002, or such other date as the parties shall mutually approve
in writing, the Seller and the Buyer shall each be entitled to terminate this
Agreement and shall have no further liability hereunder of any kind whatsoever.
ARTICLE 6. CONDITIONS OF CLOSING FOR THE BENEFIT OF BUYER
The obligation of Buyer to consummate the transactions contemplated
hereunder is subject to the satisfaction as of the Closing Date of each of the
following conditions:
6.1 Obligations Performed. The Seller shall have performed its
obligations hereunder.
6.2 Delivery of Transfer Instrument. The Seller shall have complied with
Section 2.4.
6.3 Legal Matters. All actions, proceedings, instruments, documents and
legal matters required to carry out this Agreement, or as may be incidental
thereto, shall be reasonably satisfactory to counsel for Buyer.
6.4 No Material Adverse Changes. From the date hereof to the Closing
Date, the Seller shall not have disposed of any interest that it may have in the
Purchased Assets, and shall not consent to a disposal of any interest in the
Purchased Assets by the Seller (other than sales of inventory in the ordinary
course of the Seller's business).
6.5 No Lawsuits. No suits, actions, litigation or other proceeding or
investigation (other than the filing of the Case) shall be threatened or pending
for or by any court or governmental agency concerning this Agreement or the
consummation of the transactions contemplated.
6.6 Non-Competition Agreement. The Buyer, the Seller, and TBM shall have
entered into a non-competition agreement in the form attached as Schedule 6.6
hereto.
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6.7 Corporate Approvals, Etc. The Seller shall have taken such corporate
and other actions as may be required to consummate the transactions contemplated
hereunder.
6.8 Leased Equipment. Incidental to the sale of the Purchased Assets, and
subject to the provisions of the leases and applicable insurance policies, the
Xxxx of Sale will include, the Seller's interest in all leased machines and
equipment which constitute any portion of the Purchased Assets, provided,
however, that no such leasehold interest shall be transferred to the Buyer to
the extent that the Buyer determines, in its sole discretion, that it does not
desire to accept the same. The Purchase Price shall not be adjusted as a result
of any decision by Buyer not to accept any such leasehold interest.
6.9 Additional Agreement. The Seller, Long Reach and TBM shall, at or
before the Closing have executed and delivered to Buyer an agreement dealing
with warranties, representations and indemnification obligations in the form
attached as Schedule 6.9 hereto. Buyer hereby agrees and acknowledges that (a)
any claim which Buyer, or any of its affiliates and its or their successors and
assigns, may ever have against the Seller, Long Reach, or TBM under the
aforesaid agreement shall be unsecured, and that any claim that they or any of
them may have against the Seller or Long Reach (but not any claim that they or
any of them may have against TBM) under the terms of that agreement, any related
agreement, or any claim in any way related to the transactions contemplated
hereby, shall be fully and completely subordinate and inferior to any secured or
unsecured claim which the Lender or any of its affiliates and its or their
successors and assigns may ever have against, the Seller or Long Reach or any of
their affiliates other than TBM), and (b) neither Buyer nor any of its
affiliates or any of their successors or assigns will ever directly or
indirectly attack, or encourage or assist anyone else in directly or indirectly
attacking, the validity, enforceability, perfection or priority of any rights,
liens or security interests of the Lender or any of its affiliates or any of its
or their successors or assigns, against the Seller or Long Reach or against or
in any property interest of the Seller or Long Reach. The parties understand,
acknowledge and agree that the Lender would not have agreed to the transactions
contemplated hereby but for the provisions of this Section 6.9, and,
accordingly, Lender shall be a third party beneficiary of this Section 6.9.
6.10 Rol-Lift License; Seller Name. The Seller shall at the Closing, and
at no additional cost to Buyer, provide the Buyer with a perpetual,
royalty-free, exclusive license to use the "Rol-Lift" name and trademark, and
any similar names and trademarks, in connection with the manufacture of manual
pallet trucks, and shall have taken all action necessary to ensure that the
Buyer will acquire all rights in the "Presto Lifts" name and trademark and any
similar or derivative names and trademarks as part of the Purchased Assets.
6.11 Filing Fee. The Seller shall, prior to the Closing, have paid all
filing fees required for the conversion and/or filing of the Case to one arising
under Chapter 11 of the United States Bankruptcy Code.
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ARTICLE 7. CONDITIONS OF CLOSING FOR THE BENEFIT OF THE SELLER
The obligation of the Seller to consummate the transactions contemplated
hereunder is subject to the satisfaction on the Closing Date of each of the
following conditions:
All actions, proceedings, instruments, documents and legal matters
required to carry out this Agreement, or as may be incidental thereto, shall be
reasonably satisfactory to counsel to the Seller.
ARTICLE 8. MISCELLANEOUS
8.1 Survival of Representations and Warranties. All of the
representations, warranties, covenants and agreements contained in this
Agreement and in any certificate, schedule, document, or other writing delivered
pursuant hereto have been relied upon and shall survive for a period of three
(3) years after the Closing.
8.2 Further Assurances. The Seller shall from time to time after the
Closing at the request of Buyer and without further consideration, execute and
deliver such further instruments of transfer and assignment and take such other
actions as Buyer may reasonably request to transfer more effectively and assign
to or vest in Buyer the Purchased Assets, provided that (a) no such instrument
or action will have the effect of increasing or changing any liability or of
modifying any disclaimer of liability, representation or warranty by the Seller,
and (b) at the time of making any request, Buyer will provide to the Seller
reasonable backup information verifying, to the satisfaction of the Seller, the
reason and need for such instrument or action.
8.3 Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given upon receipt if it
is sent by facsimile, or reputable express courier, and addressed or otherwise
sent to the intended recipient as set forth below:
(a) If to the Seller:
Xxxxxxx X. Xxxxxxxx
TBM Holdings, Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxxx, Esquire
Xxxxx Xxxxxxx Xxxxxxx & Xxxxx
1251 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Fax (000) 000-0000
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(b) If to the Buyer:
Xxxxxxxxxx International Group, Inc.
X.X. Xxx 0000
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx XxXxxxxx, President
with a copy to:
Xxxxxx Xxxxx Xxxxxxx & Xxxxx
Ten Free Street
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attention: Xxxxx X. Xxxx, Esq.
(c) And a copy of all notices provided hereunder shall also be sent to
the Lender at:
Xx. Xxxx X. Xxxxxx
First Vice President
Managed Assets Department
0000 Xxxx Xx., 0xx Xxxxx
Xxxxxx, XX 00000
with a copy to:
Xx. Xxxxx X. Xxxx
Xxxxxxxxx & Xxxxxxxx L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Any party may send any notice, request, demand, claim or other communication
hereunder to the intended recipient at the address or facsimile number set forth
above using any other means (including personal delivery, messenger service,
ordinary mail, or electronic mail), but no such notice, request, demand, claim
or other communication shall be deemed to have been duly given unless and until
it actually is received by the intended recipient. Any party may change the
address or facsimile number to which notices, requests, demands, claims and
other communications hereunder are to be delivered by giving the other party
notice in the manner herein set forth.
8.4 Controlling Law. This Agreement shall be construed under and governed
by the laws of the State of Maine.
8.5 Entire Agreement. This Agreement and the agreements and documents
referred to herein constitute the entire agreement of the parties with respect
to the transactions contemplated
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hereby and supersede all other agreements between the parties, whether
written or oral, with respect to such transactions.
8.6 Binding Effect. This Agreement shall inure to the benefit of and bind
the parties hereto and their respective heirs, successors and assigns.
8.7 Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties named herein and their respective successors
and permitted assigns. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other party; provided, however, that the Buyer may assign any or all of
its rights and interests, and delegate its duties and obligations, to one or
more corporations, limited liability companies, or other entities of which Buyer
and/or Buyer's shareholders collectively own a majority of the outstanding
equity interests.
8.8 Expenses and Fees. Each party shall pay its respective costs and
expenses, including, without limitation, legal and accounting fees in connection
with this Agreement and the transactions contemplated hereby.
8.9 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
8.10 Amendments and Waivers. Anything in this Agreement to the contrary
notwithstanding, if any one or more of the conditions specified in Article 6
hereof shall not have been satisfied, Buyer shall have the right, in addition to
any other right which may be available to it, to waive in writing such
conditions and nevertheless to proceed with the transactions contemplated
hereby; and if one or more of the conditions specified in Article 7 hereof shall
not have been satisfied, the Seller shall have the right, in addition to any
other right which may be available to it, to waive in writing such conditions
and nevertheless to proceed with the transactions contemplated hereby. In the
event of any such waiver, the party exercising its right shall not thereafter
have the right to proceed against the other party for damages resulting from the
breach so waived. No amendment of any provision of this Agreement shall be valid
unless the same shall be in writing and signed by each of the parties hereto. No
waiver by any party of any default, misrepresentation, or breach of warranty or
covenant hereunder, whether intentional or not, shall be deemed to extend to any
prior or subsequent default, misrepresentation, or breach of warranty or
covenant hereunder or affect in any way any rights arising by virtue of any
prior or subsequent such occurrence.
8.11 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction.
8.12 Incorporation of Exhibits and Schedules. The Schedules identified in
this Agreement are incorporated herein by reference and made a part hereof.
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8.13 Knowledge Standard. For purposes of this Agreement, an individual
will be deemed to have "knowledge" of a particular fact or other matter if: (a)
such individual is actually aware of such fact or matter, or (b) a prudent
individual could be expected to discover or otherwise become aware of such fact
or other matter in the course of conducting a reasonably comprehensive
investigation concerning the existence of such fact or other matter; a Person,
other than an individual, will be deemed to have "knowledge" of a particular
fact or other matter if any individual who is a shareholder, director, officer,
member or manager of such Person has, or at any time had, knowledge of such fact
or other matter.
IN WITNESS WHEREOF, the parties hereto have duly caused this Agreement to
be executed as of the day and year first above written.
BUYER:
WITNESS: XXXXXXXXXX INTERNATIONAL
GROUP, INC.
_______________________________ By:_________________________________
Print Name: Xxxxx XxXxxxxx
Title: President
SELLER:
PRESTO LIFTS, INC.
Debtor-in-Possession
________________________________ By:_________________________________
Print Name:
Title:
SEEN AND AGREED To:
WITNESS: LONG REACH, INC.
________________________________ By:_________________________________
Print Name:
Title:
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TBM HOLDINGS, INC.
________________________________ By:_________________________________
Print Name:
Title:
W.B. Engineering, Inc. signs below to acknowledge and agree to the
provisions of section 6.9 of this Agreement.
W.B. ENGINEERING, INC.
________________________________ By:_________________________________
Print Name:
Title:
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SCHEDULE INDEX
Schedule No. Description
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1.1 Asset Listing
2.4 Xxxx of Sale
6.6 Noncompetition Agreement
6.9 Agreement dealing with warranties, representations
and indemnification obligations of the Seller, Long
Reach, Inc and TBM
