PACIFIC INDUSTRIAL CORPORATION
A Nevada Corporation
Exhibit 2a
Asset Purchase Agreement with Pacific Challenge Pte., Ltd.
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and
entered into this 12th day of January, 1999, by and between
Pacific Challenge Pte., Ltd., Inc., a Singapore corporation
("Seller") and Pacific Industrial Corporation, a Nevada
corporation ("Buyer").
RECITALS
A. Seller is the owner of certain assets, a list of which is
attached hereto at Exhibit A and incorporated herein by
reference (the "Assets").
B. Buyer desires to purchase and acquire from Seller such
Assets, and Seller desires to transfer and convey the same
to Buyer, in accordance with the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the mutual
representations, warranties and covenants contained herein,
and on the terms and subject to the conditions herein set
forth, the parties hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall have
the meanings set forth below:
1.1 Closing. "Closing" shall mean the closing of the
transaction contemplated by this Agreement, which shall
occur at 10:00 a.m., Pacific Standard Time, on the Closing
Date in the offices of Buyer, or at such other time and
place as shall be mutually agreed in writing by the parties
hereto.
1.2 Closing Date. "Closing Date" shall mean January 12,
1999, unless otherwise mutually agreed in writing by the
parties hereto.
1.3 Assets. "Assets" shall mean all rights and interests in
the assets listed at Exhibit A hereto.
ARTICLE II
Purchase and Sale
2.1 Sale and Purchase of Assets. Subject to and upon the
terms and conditions contained herein, at the Closing,
Seller shall sell, transfer, assign, convey, and deliver to
Buyer, free and clear of all liens, claims and encumbrances,
and Buyer shall purchase, accept and acquire from Seller the
Assets.
2.2 Purchase Price. The total purchase price for the Assets
shall be FOUR HUNDRED FIFTY THOUSAND DOLLARS ($450,000.00),
payable by Buyer to Seller in the form of a Note. The Note
shall be substantially in the form of Exhibit B attached
hereto.
2.3 Instruments of Transfer,- Further Assurances.'.
(a) At the Closing, Seller shall deliver to Buyer:
(i)An assignment of each Asset, in form and substance
satisfactory to Buyer;
(ii) Such other instrument or instruments of transfer as
shall be necessary or appropriate, as Buyer shall reasonably
request, to vest in Buyer good and marketable title to the
Assets.
(b) At the Closing, Buyer shall deliver to Seller
such instrument or instruments as shall be necessary
or appropriate, as Seller shall reasonably request.
ARTICLE III
Representations and Warranties of Buyer
Buyer represents and warrants that the following are
true and correct as of this date and will be true and
correct through the Closing Date as if made on that
date:
3.1 Organization and Good Standing . Buyer is a
corporation duly organized, validly existing and in
good standing under the laws of the State of Nevada,
with all the requisite power and authority to carry on
the business in which it is engaged, to own the
properties it owns and to execute and deliver this
Agreement and to consummate the transactions
contemplated hereby.
3.2 Authorization and Validity . The execution,
delivery and performance by Buyer of this Agreement
and the other agreements contemplated hereby, and the
consummation of the transactions contemplated hereby,
have been duly authorized by Buyer. This Agreement and
each other agreement contemplated hereby have been or
will be prior to Closing duly executed and delivered
by Buyer and constitute or will constitute legal,
valid and binding obligations of Buyer, enforceable
against Buyer in accordance with their respective
terms.
3.3 No Violation. Neither the execution and
performance of this Agreement or the other agreements
contemplated hereby, nor the consummation of the
transactions contemplated hereby or thereby, will (a)
conflict with, or result in a breach of the terms,
conditions and provisions of, or constitute a default
under, the Articles of Incorporation or Bylaws of
Buyer or any agreement, indenture or other instrument
under which Buyer is bound, or (b) violate or conflict
with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over
Buyer or the properties or Assets of Buyer.
3.4 Consents. No authorization, consent, approval,
permit or license of, or filing with, any governmental
or public body or authority, any lender or lessor or
any other person or entity is required to authorize,
or is required in connection with, the execution,
delivery and performance of this Agreement or the
agreements contemplated hereby on the part of Buyer.
ARTICLE IV
Representations and Warranties of Seller
Seller represents and warrants that the following are
true and correct as of this date and will be true and
correct through the Closing Date as if made on that
date:
4.1 Organization and Good Standing . Seller is a
corporation duly organized, validly existing and in
good standing under the laws of Singapore, with all
the requisite power and authority to carry on the
business in which it is engaged, to own the properties
it owns and to execute and deliver this Agreement and
to consummate the transactions contemplated hereby.
4.2 Authorization and Validity. The execution,
delivery and performance by Seller of this Agreement
and the other agreements contemplated hereby, and the
consummation of the transactions contemplated hereby,
have been duly authorized by Seller. This Agreement
and each other agreement contemplated hereby have been
or will be prior to Closing duly executed and
delivered by Seller and constitute or will constitute
legal, valid and binding obligations of Seller,
enforceable against Seller in accordance with their
respective terms.
4.3 Title. Seller has good and marketable title to the
Assets which are the subject of this Agreement. Upon
consummation of the
transactions contemplated hereby, Buyer shall receive
good, valid and marketable title to all the Assets
free and clear of all liens, claims, and encumbrances.
4.4 Commitments. Except as set forth in Exhibit C,
Seller has not entered into, nor are the Assets or the
business of Seller bound by, whether or not in
writing, any (i) partnership or joint venture
agreement; (ii) deed of trust or other security
agreement; (iii) guaranty or suretyship,
indemnification or contribution agreement or
performance bond; (iv) employment, consulting or
compensation agreement or arrangement, including the
election or retention in office of any director or
officer; (v) labor or collective bargaining agreement;
(vi) debt instrument, loan agreement or other
obligation relating to indebtedness for borrowed money
or money tent to another; (vii) deed or other document
evidencing an interest in or contract to purchase or
sell real property; (viii) agreement with dealers or
sales or commission agents, public relations or
advertising agencies, accountants or attorneys; (ix)
lease of real or personal property, whether as lessor,
lessee, sublessor, or sublessee; (x) agreement
relating to any material matter or transition in which
an interest is held by a person or entity which is an
affiliate of Seller; (xi) powers of attorney; or (xii)
contracts containing noncompetition covenants.
4.5 Adverse Agreements. Seller is not a party to any
agreement or instrument or subject to any charter or
other corporate restriction or any judgment, order,
writ, injunction, decree, rule or regulation which
materially and adversely affects or, so far as Seller
can now foresee, may in the future materially and
adversely affect the business operations, prospects,
properties, Assets or condition, financial or
otherwise, of Seller.
4.6 No Violation. Neither the execution and
performance of this Agreement or the other agreements
contemplated hereby, nor the consummation of the
transactions contemplated hereby or thereby, will (a)
conflict with, or result in a breach of the terms,
conditions and provisions of, or constitute a default
under, the Articles of Incorporation or Bylaws of
Seller or any agreement, indenture or other instrument
under which Buyer is bound, or (b) violate or conflict
with any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over
Seller or the properties or Assets of Seller.
4.7 Consents. No authorization, consent, approval,
permit or license of, or filing with, any governmental
or public body or authority, any lender or lessor or
any other person or entity is required to authorize,
or is required in connection with, the execution,
delivery and performance of this Agreement or the
agreements contemplated hereby on the part of Seller.
4.8 Compliance with Laws. 'Mere are no existing
violations by Seller of any applicable federal, state
or local law or regulation, except to the extent that
any such violations would not have a material adverse
effect on the property or business of Seller.
4.9 Accuracy of Information Furnished. All information
furnished to Buyer by Seller is true, correct and
complete in all material respects. Such information
states all material facts required to be stated
therein or necessary to make the statements therein,
in light of the circumstances under which such
statements are made, true, correct and complete.
4.10 Proceedings. No action, proceeding or order by
any court or
governmental body or agency shall have been threatened
in writing, asserted, instituted or entered to
restrain or prohibit the carrying out of the
transactions contemplated by Us Agreement.
ARTICLE V
Indemnification
5.1 Seller's indemnity. Subject to the terms of this
Section, Seller hereby agrees to indemnify, defend and
hold harmless Buyer and its officers, directors,
agents, attorneys, accountants and affiliates from and
against any and all losses, claims, obligations,
demands, assessments, penalties, liabilities, costs,
damages, reasonable attorneys' fees and expenses
("Damages") asserted against or incurred by Buyer by
reason of or resulting from a breach by Seller of any
representation, warranty or covenant contained herein,
or in any agreement executed pursuant thereto.
5.2 Buyer's Indemnity. Subject to the terms of this
Section, Buyer hereby agrees to indemnify, defend and
hold harmless Seller and its officers, directors,
agents, attorneys, accountants and affiliates from and
against any and all losses, claims, obligations,
demands, assessments, penalties, liabilities, costs,
damages, reasonable attorneys' fees and expenses
("Damages") asserted against or incurred by Seller by
reason of or resulting from a breach by Buyer of any
representation, warranty or covenant contained herein,
or in any agreement executed pursuant thereto.
5.3 Remedies Not Exclusive. The remedies provided for
in this Section shall not be exclusive of any other
rights or remedies available by one party against the
other, either at law or in equity.
ARTICLE VI
Termination
6.1 Termination for Cause. This Agreement may be
terminated prior to Closing upon notice to the other
party at any time by a party if any representation or
warranty of the other party contained in this
Agreement or in any certificate or other document
executed and delivered by one party to the other is or
becomes untrue or breached in any material respect or
if one party fails to comply in any material respect
with any covenant or agreement contained herein, and
any such misrepresentation, breach or noncompliance is
not cured, waived, or eliminated before Closing.
6.2 Termination Without Cause. Anything herein or
elsewhere to the contrary notwithstanding, this
Agreement may be terminated and abandoned at any time
without further obligation or liability on the part of
any party in favor of any other by mutual consent of
Purchaser and Seller.
ARTICLE VII
Miscellaneous Provisions
7.1 Amendment and Modification. Subject to applicable
law, Us Agreement may be amended, modified or
supplemented only by a written agreement signed by
Buyer and Seller.
7.2 Waiver of Compliance; Consents.
7.2.1 Any failure of any party to comply with any
obligation, covenant, agreement or condition herein
may be waived by the party entitled to the performance
of such obligation, covenant or agreement or who has
the benefit of such condition, but such waiver or
failure to insist upon strict compliance with such
obligation, covenant, or agreement or condition will
not operate as a waiver of, or estoppel with respect
to, any subsequent or other failure.
7.2.2 Whenever this Agreement requires or permits
consent by or on behalf of any party hereto, such
consent will be given in a manner consistent with the
requirements for a waiver of compliance as set forth
above.
7.3 Notices. All Notices, requests, demands and other
communications required or permitted hereunder will be
in writing and will be deemed to have been duly given
when delivered by (i) hand; (ii) reliable overnight
delivery service; or (iii) facsimile transmission.
If to Buyer, to:______________________________________
If to Seller, to:_____________________________________
7.4 Titles and Captions. All section titles or
captions contained in this Agreement are for
convenience only and shall not be deemed part of the
context nor effect the interpretation of this
Agreement.
7.5 Entire Agreement. This Agreement contains the
entire understanding between and among the parties and
supersedes any prior understandings and agreements
among them respecting the subject matter of this
Agreement.
7.6 Agreement Binding. This Agreement shall be binding
upon the heirs, executors, administrators, successors
and assigns of the parties hereto.
7.7 Attorneys' Fees. In the event an arbitration, suit
or action is brought by any party under this Agreement
to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party
shall be entitled to reasonable attorneys fees to be
fixed by the arbitrator, trial court, and/or appellate
court.
7.8 computation of Time. In computing any period of
time pursuant to this Agreement, the day of the act,
event or default from which the designated period of
time begins to run shall be included, unless it is a
Saturday, Sunday or a legal holiday, in which event
the period shall begin to run on the next day that is
not a Saturday, Sunday or legal holiday.
7.9 Pronouns and Plurals. All pronouns and any
variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural as the
identity of the person or persons may require.
7.10 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEVADA. THE PARTIES AGREE THAT ANY
LITIGATION RELATING DIRECTLY OR INDIRECTLY TO THIS
AGREEMENT MUST BE BROUGHT BEFORE AND DETERMINED BY A
COURT OF CONMETENT JURISDICTION WITHIN THE STATE OF
NEVADA.
7.11 Arbitration. If at any time during the term of
this Agreement any dispute, difference, or
disagreement shall arise upon or in respect of this
Agreement, and the meaning and construction hereof,
every such dispute, difference, and disagreement shall
be referred to a single arbiter agreed upon by the
parties, or if no single arbiter can be agreed upon,
an arbiter or arbiters shall be selected in accordance
with the rules of the American Arbitration Association
and such dispute, difference or disagreement shall be
settled by arbitration in accordance with the then
prevailing commercial rules of the American
Arbitration Association, and judgment upon the award
rendered by the arbiter may be entered in any court
having jurisdiction thereof
7.12 Presumption. Ms Agreement or any Section thereof
shall not be construed against any party due to the
fact that said Agreement or any section thereof was
drafted by said party.
7.13 Further Action. The parties hereto shall execute
and deliver all documents, provide all information and
take or forbear from all such action as may be
necessary or appropriate to achieve the purposes of
the Agreement.
7.14 Parties in Interest. Nothing herein shall be
construed to be to the benefit of any third party, nor
is it intended that any provision shall be for the-
benefit of any third party.
7.15 Savings Clause. If any provision of this
Agreement, or the application of such provision to any
person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of
such provision to persons or circumstances other than
those as to which it is held invalid, shall not be
affected hereby.
7.16 Confidentiality. The parties shall keep this
Agreement and its terms confidential, but any party
may make such disclosures as it reasonably considers
are required by law or necessary to obtain financing.
In the event that the transactions contemplated by
this Agreement are not consummated for any reason
whatsoever, the parties hereto agree not to disclose
or use any confidential information they may have
concerning the affairs of other parties, except for
information which is required by law to be disclosed.
Confidential information includes, but is not limited
to, financial records, surveys, reports, plans,
proposals, financial information, information relating
to personnel contracts, stock ownership, liabilities
and litigation.
7.17 Costs, Expenses and Legal Fees. Whether or not
the transactions contemplated hereby are consummated,
each party hereto shall bear its own costs and
expenses (including attorneys' fees), except as set
forth in the Escrow Agreement.
7.18 Severability. If any provision of this Agreement
is held to be illegal, invalid or unenforceable under
present or future laws effecting during the term
hereof, such provision shall be fully severable and
this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision never
comprised a part hereof-, and the remaining provisions
hereof shall remain in full force and effect and shall
not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom.
Furthermore, in lieu of such illegal, invalid and
unenforceable provision, there shall be added
automatically as part of this Agreement a provision as
similar in nature in its terms to such illegal,
invalid or unenforceable provision as may be possible
and be legal, valid and enforceable.
7.19 Counterparts and Facsimile Signatures. 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. For purposes of this Agreement, facsimile
signatures shall be treated as originals until such
time that applicable pages bearing non-facsimile
signatures are obtained from the relevant party or
parties.
7.20 Continuing Mature. All representations and
warranties contained in this Agreement shall survive
the Closing for a period of two (2) years and, if
applicable, all covenants, which, according to their
terms are to be performed after the execution of this
Agreement, shall survive the Closing for a period of
two (2) years.
IN WITNESS WHEREOF, the parties hereto have set thier
hands this 12th day of January, 1999
Pacific Industrial Corporation Pacific Challenge Pte., Ltd.
Nevada Corporation (Buyer) A Singapore Corporation (Seller)
by:/s/Xxxxxx Xxxxx, President by:/s/Xxxx Xxxxxx
