Exhibit 10.9
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made and entered into this 4 day, of October, 2005 by
and among Art's-Way Manufacturing Co., Inc., a Delaware corporation ("Buyer"),
and Premier Bank, a bank organized and existing under the laws of the State
of Iowa ("Seller").
RECITALS
Seller is presently the owner as the secured party transferee of certain
assets and properties formerly used by Vessel Systems, Inc., in the business
of the design, manufacture, and distribution to third party purchasers of
steel pressure tanks and vessels and related parts and accessories (the
"Subject Business") which assets were voluntarily surrendered to Seller who
was the holder of a security interest therein. Buyer desires to purchase the
Subject Business, including the assets connected therewith, from Seller all on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants,
agreements and other good and valuable consideration hereinafter set
forth, the receipt and legal sufficiency of which are hereby acknowledged,
the parties do hereby promise and agree as follows:
1. ASSETS TO BE PURCHASED AND EXCLUDED.
(a) Personal Property. Subject to the terms and conditions set
forth in this Agreement, Seller agrees to sell, convey, assign and deliver to
Buyer and Buyer agrees to purchase from Seller at the Closing (as defined in
Section 6) the following assets owned as provided above by Seller and used by
Vessel Systems, inc., in the operation of the Subject Business as they exist
on the Closing Date (collectively, the "Subject Assets"):
(i) all machinery, equipment, furniture and fixed assets
surrendered by Vessel Systems, Inc. to Seller including without
limitation those items identified or described, on attached Exhibit A
and incorporated herein. It is understood that the following property
formerly owned by Marke, LLC will be transferred to Buyer at closing:
paint booth; blast booth; 4 overhead cranes; and 2 hydro tanks located
outside the building; also conveyed are all warranties, instructions,
operating manuals, service records and software associated with any
of the foregoing.
(ii) all inventories of raw materials, work in process, and
finished goods (including all such inventory at Vessel Systems, lnc.'s
facility in Dubuque, Iowa); (the "Inventory");
(iii) all drawings, designs, specifications, process
information, performance data, software, programs, backlog,
contracts, proprietary designs and other information, and data
relating to the Subject Business and related equipment listed;
(iv) all sales and customer lists and records, personnel
and payroll records, purchasing, supplier and sale records (the
"Subject Business Records");
(v) all supplies, packaging materials, marketing and sales
literature, consumable materials and other miscellaneous items of
similar character; and,
(vi) any and all intellectual property, trademarks, patents,
phone numbers, website, e-mail addresses, and any other goodwill of the
Subject Business.
(vii) all accounts receivable arising in the ordinary course
of Vessel Systems, Inc.'s business from the sale of products to
customers.
(viii) all other property located at Vessel Systems, Inc's
facility in Dubuque, Iowa.
(b) Excluded Assets. Except as provided, the Subject Assets
shall not include any of the following (collectively, the "Excluded Assets"):
(i) any cash, or cash equivalent assets of Subject Business;
(ii) Vessel System's lnc.'s corporate minute book, financial
statements and records, stock records or tax returns;
(iii) any personal effects of the shareholders, directors,
officers and employees of the Vessel Systems, Inc. described on the
attached Exhbit B; and,
(iv) a certain Tital 10 MG-Xxxxxx Global Control High
Definition Lasar burning table subject to a lease with BBC Community
Leasing Service, Inc. of Madison, Wisconsin..
2. NO ASSUMPTION OF LIABILITIES. Buyer shall assume no obligations or
liabilities of Seller or Vessel Systems, Inc., whatsoever, of any kind
or nature, whether they are accrued, absolute, contingent or otherwise.
Vessel Systems, Inc. shall be liable for any sales or transfer taxes
payable in connection with consummation of the transactions contemplated
herein.
3. PURCHASE PRICE; ADJUSTMENT; PAYMENT; ALLOCATION.
(a) Purchase Price for Personal Property. Subject to the
adjustments in Section 3(b), the purchase price for the Subject Assets is
One Million Two Hundred Fifty Thousand Dollars ($1,250,000). Buyer has
deposited with Vessel Systems, Inc.'s broker, Equity Partners, Inc. the sum of
$150,000 as xxxxxxx money (herein "Xxxxxxx Money") which Xxxxxxx Money,
together with any interest thereon, shall be applied to the purchase
price at closing.
(b) Adjustments to Purchase Price. The Purchase Price shall be
adjusted upward or downward by the sum of the following adjustments:
(i) Accounts Receivable Adjustment. The purchase price shall
be increased by the amount that the value of the accounts receivable
transferred at closing shall be more than $339,317.11, or shall be
decreased by the amount that the value of the accounts receivable
transferred at closing shall be less than $339,317.11. In calculating
the foregoing adjustment the accounts receivable transferred shall be
valued as a percentage of their face amount according to age as
follows:
those less than 30 days old shall be valued at 90% of the
face amount thereof;
those 31 to 60 days old shall be valued at 85% of the face
amount thereof;
those 61 to 90 days old shall be valued at 75% of the face
amount thereof; and those more than 90 days old shall be
valued at 44% of the face amount thereof.
To illustrate, the valuation of the currently existing accounts
receivable (as represented by Vessel Systems, Inc.) valued using the
foregoing schedule, would be calculated as set forth in the following
table:
Age Less Than 31-60 Days 61-90 Days Over 90 Total
30 Days Days Valuation
Face 125,370.00 71,527.00 6,084.00 366,189.00
Amount*
Percentage 0.90 0.85 0.75 0.44
of Face Amount
Valuation 112,833.00 60,797.95 4,563.00 161,123.16 339,317.11
*The foregoing table is for illustration only and does not constitute Buyers
agreement that any amount shown therein is properly included in the
calculation of the value ofthe accounts receivable under the requirements
of this paragraph.
No account receivable shall be given a value in making such
calculation that is not an account receivable from a customer
arising from the sale of goods by Vessel Systems, Inc., in the
ordinary course of business. In applying the foregoing valuation,
the face amount of all accounts receivable shall be net of all
offsets and applicable discounts. No account receivable which is
contested in whole or in part by the debtor thereon shall be included
as an account receivable in determining the foregoing valuation nor
shall it be transferred to Buyer but shall be retained by Seller.
(ii) Inventory Adjustment. The purchase price shall be
increased by the amount that the value of the inventory (including
work in process (WIP) and other inventory) transferred at closing
shall be more than $423,800.00, or shall be decreased by the amount
that the value of the inventory transferred shall be less than
$423,800.00. In calculating the foregoing adjustment the inventories
transferred shall be valued as a percentage of such inventory's
original cost or its current market value if lower than original cost
(hereinafter "Inventory Cost") according to age as follows:
Inventories (including both Work in Process (WIP) and other inventory
less than six months old shall be valued at 88% of the Inventory Cost
thereof,
Inventories (including both Work in Process (WIP) and other inventory
six month old or more than six months old shall be valued at 40% of the
Inventory Cost thereof,
The valuation of the currently existing Inventory valued using the
foregoing schedule, is illustrated in the following table:
Age WIP Less than Other inventory Inventory over 6 Total Value
6 months old Less than 6 months old
months old
Inventory
Cost 45,000.00 385,000.00 113,500.00
Percentage of
Inventory Cost 0.88 0.88 0.40
Totals 39,600.00 338,800.00 45,400.00 423,800.00
*The foregoing table is for illustration only and does not constitute Buyer's
agreement that any amount shown therein is properly included in the
calculation of the value of the inventory under the requirements of this
paragraph.
Any item of inventory that is not new, is damaged, is otherwise unusable
for the purpose intended, is in excess of a 6 month supply at current
production rates, or is not used in the production of products in
Pressure Systems, Inc.'s current product line shall be given a value of
zero and shall be retained by Seller.
Three (3) days immediately preceding the Closing, Seller and Buyer shall
take a physical inventory and the inventory figures so determined shall
be used to make the adjustment to purchase price called for herein.
(c) Payment of Purchase Price. At the Closing, Buyer shall pay
the Purchase Price via cashier's check or wire transfer, as the parties
shall agree. Seller agrees that certain lien, lease, tax, commissions or
other payments with respect to the Subject Assets and the property subject
to the lease provided for in Paragraph 4. shall be made out of the purchase
price and that the purchase price shall be distributed to those persons and
in those amounts shown on the Schedule of Distribution of Purchase Price
attached hereto as Exhibit C at closing. Payment of the Purchase Price in
accordance with said Schedule shall constitute full payment of the Purchase
Price by Buyer.
(d) Allocation of Purchase Price. The Purchase Price shall be
allocated among the Subject Assets as follows:
Item Amount
Equipment and Machinery 481,882.89
Intellectual Property and Intangibles 5,000.00
Accounts Receivable (Subject to Adjustment) 339,317.11
Inventories (Subject to Adjustment) 423,800.00
Total 1,250,000.00
The parties hereto agree to report the amounts payable under this
Agreement and under the documents and agreements executed in connection
herewith in a manner consistent with the intentions of the parties as
indicated in such documents and agreements.
In addition, the parties hereto agree not to take any position on
their respective federal income tax returns (including Internal Revenue
Service form 8594) which is inconsistent with such allocations. The
allocations above contain the allocation of purchase price among whole
categories of Assets. Buyer may at any time up to the date of closing
make further allocations of the amount designated for each category of
Assets to the specific items within each such category.
(e) Good Faith Deposit. Buyer has deposited with Vessel
Systems, lnc.'s broker, Equity Partners, Inc. $150,000.00 representing
a Good Faith Deposit. Said Good Faith Deposit, together with all accrued
interest, shall be applied against payment of the purchase price set
forth above at Closing.
4. LEASE OF REAL ESTATE. Subject to and in accordance with the
terms of this Agreement, Marke, LLC shall lease the premises located at 0000
Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxx to Buyer on the terms and conditions
contained in a Real Estate Lease in substantially the form of Exhibit D
and incorporated herein.
5. CLOSING.
(a) Time and Place of Closing. The closing of the purchase
and sale contemplated herein (the "Closing") shall take place on October 4,
2005 or as soon thereafter after as Buyer shall be satisfied with Seller's
ability to deliver clear title to the assets being sold. Closing shall
take place at the offices of Premier Bank, in Dubuque, Iowa or such
other time and place as Seller and Buyer may agree. The effective time
of the Closing shall be deemed to 12:01 a.m. CDT on the Closing Date.
(b) Seller's Deliveries. At the Closing, Seller shall deliver
to Buyer the following:
(i) a transfer statement pursuant to Section 554.9619 of
the Iowa Code, together with any bills of sale, assignments,
certificates of title and such other instruments of conveyance
(including such documents from Marke, LLC with respect to
those items of the Subject Assets owned by Marke, LLC and
further including such documents from the lessors thereof
with respect to any of the Subject Assets presently subject
to a lease) as Buyer shall reasonably require, in a form
reasonably satisfactory to Buyer and Buyer's counsel, duly
executed, conveying to Buyer the Subject Assets, free and
clear of all liens, claims and encumbrances;
(ii) a certificate from the Secretary of Seller, in a
form reasonably satisfactory to Buyer and Buyer's counsel,
setting forth the resolutions adopted by the board of directors
of Seller authorizing the execution of this Agreement and all
documents to be executed in connection herewith and the taking
of any and all actions deemed necessary and advisable to
consummate the sale of the Subject Assets;
(iii) actual or constructive possession of the Subject
Assets and the Subject Business Records;
(iv) duly executed satisfactions, termination statements
and/or releases in form and substance reasonably satisfactory to
Buyer and its counsel sufficient to release any and all liens,
claims or encumbrances of Seller affecting the Subject Assets;
(v) Duly executed lease from Marke, LLC referred to in
paragraph 4. above together with non disturbance agreements from
Seller with respect to all deeds of trust, mortgages or other
liens on the real estate described in the lease agreeing that
any foreclosure of such liens shall be subject to said lease.
(vi) such other instruments as Buyer may reasonably request
to vest in Buyer, full and unencumbered title to the Subject
Assets.
(c) Buyer's Deliveries. At the Closing, Buyer shall deliver to
Seller the Purchase Price in the manner specified pursuant to Section 3(a).
6. WARRANTIES AND REPRESENTATIONS OF SELLER. Seller hereby
warrants and represents to Buyer, which warranties and representations
shall survive the Closing as hereinafter set forth, as follows:
(a) Corporate Matters.
(i) Seller is a corporation duly incorporated and validly
existing under the laws of the State of Iowa and has the authority
and power, corporate and otherwise, to carry on all business
activities currently or previously conducted by it. Seller has the
corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement, the agreements and instruments relating
hereto and the consummation of the transactions contemplated hereby
have been approved by the board of directors of Seller and are and
shall constitute valid and legally binding obligations of Seller,
enforceable against it in accordance with their respective terms.
(ii) The execution of this agreement and the consummation
hereof, do not conflict, or result in the breach of, or constitute
a default under, the articles of incorporation or bylaws of Seller
or any material agreement or instrument affecting the Subject Assets
of which Seller has knowledge and to which Seller is a party or by
which it is bound.
(b) No Consent. No consent, approval, order or authorization of,
registration, 6 declaration or filing with, any court, administrative agency
or commission or other governmental authority or instrumentality, domestic
or foreign, is required to be obtained or made by or with respect to the
Subject Assets as a condition to the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(c) Title to Subject Assets. Seller owns as hereinbefore provided,
and shall at closing assign, transfer and convey to Buyer all of Vessel
Systems, Inc.'s rights to legal and beneficial ownership of all of the
Subject Assets free and clear of all liens or encumbrances whatsoever.
(d) Compliance with Law. Seller has complied in all material respects
with aplicable Iowa Law concerning obtainment of the Subject Assets and
transfer of same to Buyer.
(d) Location of Assets: All of the Subject Assets are located at 0000
Xxxxxxxxxx Xxxx, Xxxxxxx, Xxxx.
(e) Notice Regarding Changes: Seller shall promptly inform Buyer in
writing of any change in facts and circumstances that will render any of
the representations or warranties made herein by Seller inadequate or
misleading if such representations and warranties had been made upon the
occurrence of the fact or circumstance in question.
7. CONDITIONS TO CLOSING. The obligations of the Buyer to close this
transaction are specifically conditioned upon the occurrence of, or
satisfaction of, the following events and conditions:
(a) Vessel Systems, Inc. and Buyer shall have conducted a physical
inventory on or before closing which results are satisfactory to Buyer
and approved and accepted by Vessel Systems, Inc. for purposes of
determining an adjustment to the purchase price under paragraph 3(b);
(b) All representations and warranties of Seller as contained in
this agreement shall be true and correct in all material respects at
and as of the closing as if such representations and warranties were
made at and as of the closing (except for changes contemplated by the
terms of this agreement), and Seller shall have performed and satisfied
in all material respects all covenants and agreements required by this
agreement to be performed and satisfied by it at or prior to closing.
(c) There shall not have occurred any damage, destruction or loss
of any of the Subject Assets (whether or not covered by insurance).
8. CONDUCT SUBSEQUENT TO CLOSING,
(a) Execution and Delivery of Further Instruments by Seller. Seller
shall as reasonably necessary upon the request of Buyer or its
successors or assigns, execute, acknowledge and deliver to Buyer or its
successors or assigns such further instruments of conveyance,
assignment, transfer, powers of attorney, consents and assurances and
shall take such other action as Buyer or its successors or assigns may
reasonably request in order to convey, assign, transfer and deliver any
of the Subject Assets to Buyer.
(b) Execution and Delivery of Further Instruments by Buyer. Buyer
shall at any time, and from time to time after the Closing upon the request of
Seller, or its successors or assigns, execute, acknowledge and deliver to
the requesting party such further instruments and take such other actions
as Seller may reasonably request in order to more effectively consummate
the transactions contemplated by this Agreement.
(c) Access to Business Records. From and after the Closing Date,
the Buyer shall use ordinary care to maintain the business records of Vessel
Systems, Inc. acquired by it pursuant hereto and, damage by fire or
other casualty or accident excepted, shall not for a period of seven (7)
years after the Closing Date destroy or dispose of any such records
unless it shall first have notified Seller of its intention to do so in
writing and shall have afforded Seller an opportunity to take possession
thereof. For the seven calendar years following closing, Seller, Vessel
Systems, Inc. and its owners shall have access to business records of
Vessel Systems, Inc., as needed, on all normal business days provided
that Seller, Vessel Systems, Inc., or either of its owners, Xxxx
Xxxxxxxx and Xxxxxxx Xxxxxxxxxx, provide 48 hour written notice to Buyer
or its assigns. The obligation contained heein to provide access to
business records shall survive the closing and shall be an obligation of
any successor in interest to Buyer.
(d) Survival of Obligations. Unless otherwise provided, the
representations and obligations contained in this Agreement will survive
the consummation of the transactions contemplated by this Agreement. Any
investigation made at any time by Buyer or Buyer's representatives shall
not constitute a waiver of Buyer's rights under any representation set
forth in this Agreement.
9. BUYER'S RIGHT OF TERMINATION: Buyer shall have the right and option
to terminate this contract immediately upon the happening of any of the
following:
a. Upon breach by Seller of any representation or warranty made by
Seller herein.
b. Upon Seller's ceasing, prior to closing, operations of its business
in the normal course and as a going concern.
c. Upon the failure of Seller to satisfy any condition precedent to
Buyer's obligation to close hereunder set forth in this agreement.
In the event Buyer shall elect to terminate this agreement pursuant to
the option to terminate contained in this Paragraph 9, upon written
notice of such election by Buyer to Seller, this contract shall be
deemed terminated.
10. MISCELLANEOUS.
(a) Expenses. The parties hereto shall pay their own expenses,
including, without limitation, accountants' and attorneys' fees incurred
in connection with the negotiation and consummation of the transactions
contemplated by this Agreement.
(b) Notices. All notices or other communications required or
permitted to be given hereunder to either party shall be in writing and
shall be considered to be given and received in all respects when personally
delivered or sent by prepaid telex, cable or telecopy or sent by reputable
overnight courier service or three days after deposited in the United States
mail, certified mail, postage prepaid, return receipt requested, addressed
as follows, or to such other address as shall be designated by notice duly
given:
IF TO BUYER: Art's-Way Manufacturing Co., Inc.
Attn: Xxxx Xxxxxxxx, President
XX Xxx 000
Xxxxxxxxx, Xxxx 00000
(000) 000-0000, ext. 222
fax (000) 000-0000
e-mail xxxxxxx@xxx.xxx
WITH A COPY TO: Xxxxxxxx X Xxxxxx, Xx.
000 Xxxxx Xxxx.
Xxxxxxx, XX 00000-0000
(000) 000-0000
fax (000) 000-0000
e-mail xxxxxxxxxxx@xxxxxxxxx.xxx
IF TO SELLER: Premier Bank
c/o Xxxxx Xxxxxxx, Xx. V.P.
0000 Xxxx X. Xxxxxxx Xx.
Xxxxxxx, Xxxx 00000
WITH A COPY TO: Xxxx X. Xxxxxx
X'Xxxxxx & Xxxxxx P.C.
P. O. Xxx 000
Xxxxxxx, Xxxx 00000-0000
(c) Public Announcements. The parties shall mutually agree as to
what, if any, public announcements are to be made after the sale. Except as
may be required by law there shall be no announcement of the Purchase
Price by either party.
(d) Entire Agreement. This Agreement, and the agreements executed
and delivered simultaneously herewith constitute the entire agreement
between the parties hereto relating to the subject matter hereof, and
all prior agreements, correspondence, discussions and understandings of
the parties (whether oral or written) are hereby superseded, it being
the intention of the parties hereto that this Agreement shall serve as
the complete and exclusive statement of the terms of their agreement
together. No amendment, waiver or modification hereto or hereunder shall
be valid unless in writing signed by an authorized signatory of the
party or parties to be affected thereby.
(e) Binding Effect. This Agreement shall be binding upon the parties
hereto, their respective legal representative, successors, and assigns.
(f) Paragraph Headings, The headings in this Agreement are for
purposes of convenience and ease of reference only and shall not be construed
to limit or otherwise affect the meaning of any part of this Agreement.
(g) Severability. The parties agree that if any provision of this
Agreement shall under any circumstances be deemed invalid or inoperative,
this Agreement shall be construed with the invalid or inoperative provision
deleted, and the rights and obligations of the parties shall be construed
and enforces accordingly.
(h) Applicable Law. This Agreement and all questions arising in
connection herewith shall be governed by and construed in accordance with
the laws of the State of Iowa.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day, month and year first above written.
SELLER: BUYER:
Premier Bank Art's-Way Manufacturing Co., Inc.
By: By:
Xxxxxxx P Mozona, President Xxxx Xxxxxxxx, President
Marke, LLc as to Paragraphs 1(a)(i), 4, and 5(b)(i) & (vi)
By:
Xxxxxxx X. Xxxxxxxxxx, Manager
By:
Xxxx X. Xxxxxxxx, Manager
