EXHIBIT 10.1
Asset Purchase Agreement, dated March 31, 1996, between
Home Builders International, Inc. and the Company
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into as
of the 31st day of March, 1996, by and between HOME BUILDERS INTERNATIONAL,
INC., a Minnesota corporation ("Seller"), to INTERNATIONAL BUILDING CONCEPTS,
LTD., a Minnesota corporation ("Buyer").
RECITALS:
WHEREAS, Seller has been engaged in the business of producing, marketing
and selling monolithic housing structures (the "Business"); and
WHEREAS, Seller desires to sell, assign and transfer to Buyer, and Buyer
desires to purchase and acquire from Seller, certain assets of Seller used in
connection with the Business, and Buyer has agreed to assume the Assumed
Liabilities (as defined herein), for the consideration and on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants and agreements herein set forth, the parties agree as follows:
ARTICLE I
SALE AND PURCHASE OF ASSETS
1.1 ASSETS TO BE TRANSFERRED. Subject to the terms and conditions set
forth in this Agreement, Seller will sell, assign and transfer to Buyer, and
Buyer will purchase and acquire from Seller, at the Closing (as defined in
Section 2.1), all of Seller's right, title and interest in and to certain assets
of the Business as the same exist on the Closing Date, including all inventory,
accounts receivable, customer contracts, and records and documents related to
the operation of the Business, as well as the personal property set forth on
SCHEDULE 1.1 attached to this Agreement and hereby made a part hereof (the
"Assets").
1.2 EXCLUDED ASSETS. In addition to any tax loss carry forward of Seller,
none of which Buyer shall obtain, Seller shall retain, and Buyer shall not
purchase from Seller, the following assets (collectively, the "Excluded
Assets"):
1.2.1 UNIHOME TRADE NAME. The trade name "UniHome," which relates
to the technology and invention set forth in United States Patent No. 5,351,453
held by Xxxxxx X. Xxxxxx.
1.2.2 ENVIROBOARD TRADE NAME AND TECHNOLOGY. The trade name
"Enviroboard" and all right, title and interest in and to the Enviroboard
process and technology.
1.2.3 CUSTOMER LEADS. All customer leads directly resulting from
the article in PARADE MAGAZINE, dated April 10, 1994, describing the UniHome
technology.
1.2.4 MONTE ALTO PROJECT. All right, title and interest in and to
all real and personal property constituting the 32-unit rental housing project
built by Seller in Monte Alto, Texas.
1.3 CONSIDERATION; ASSUMPTION OF LIABILITIES. In consideration for the
transfer of the Assets pursuant to this Agreement, and subject to the terms and
conditions set forth in this Agreement, at the Closing Buyer shall assume all
the obligations and liabilities of Seller amounting to $516,863.38 as set forth
in SCHEDULE 1.3 attached to this Agreement (the "Assumed Liabilities"), which
Buyer has paid, satisfied, honored and discharged as of the date hereof, or
hereby agrees to pay, satisfy, honor and discharge when due.
1.4 LIABILITIES NOT ASSUMED. The Buyer does not and shall not assume, pay,
perform, or discharge any liabilities or obligations of the Seller, other than
the Assumed Liabilities, and without limiting the foregoing, it is expressly
agreed that the Buyer shall not assume any liabilities or obligations of the
Seller except those expressly assumed under Section 1.3.
1.5 CERTAIN TAXES, FEES, ETC. All taxes and fees payable in connection
with the sale, transfer and delivery of the Assets, including, without
limitation, sales, use and transfer taxes, and recording taxes and fees, shall
be paid and borne by Buyer.
ARTICLE II
CLOSING
2.1 PLACE AND DATE. The closing of the sale and purchase of the Assets
(the "Closing") shall take place at such time and place as the parties hereto
may mutually determine. The date so fixed for the Closing is herein called the
"Closing Date." The Closing shall be effective as of the Closing Date.
2.2 DELIVERIES BY THE PARTIES.
2.2.1 DELIVERIES BY SELLER. At the Closing, Seller shall deliver
or shall cause to be delivered to Buyer the following:
(a) a duly executed xxxx of sale, assignment and general
conveyance, substantially in a form satisfactory to Buyer;
(b) possession of the Assets; and
(c) a copy of resolutions of Seller's Board of Directors, duly
certified by Seller's corporate Secretary, authorizing the
transactions contemplated herein.
2.2.2 DELIVERIES BY BUYER. At the Closing, Buyer shall
deliver to Seller a copy of resolutions of Buyer's Board of Directors, duly
certified by Buyer's corporate Secretary, authorizing the transactions
contemplated herein.
2.2.3 DELIVERIES BY SELLER AND BUYER. At the Closing, Seller
and Buyer shall execute and deliver or shall cause to be executed and delivered
all other documents reasonably required by either party hereto pertaining to
this Agreement and the transactions contemplated hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer as follows:
3.1 ORGANIZATION, STANDING, ETC. Seller is a corporation duly organized
and validly existing under the laws of the State of Minnesota. Seller has all
requisite power and authority to carry on the Business as now conducted by it,
to own and operate the Assets it owns and, in the places where the Assets are
now owned or operated, to sell and transfer the Assets it owns and perform its
other obligations hereunder. Seller has the requisite power and authority to
execute and deliver this Agreement, and to perform its obligations hereunder.
3.2 AUTHORITY; BINDING EFFECT. The execution and delivery of this
Agreement and the other agreements, documents, certificates and instruments
required to be delivered by Seller pursuant to this Agreement, and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary action on the part of Seller. This Agreement and the other
agreements, documents, certificates and instruments required to be delivered by
Seller pursuant to this Agreement have been duly executed and delivered by
Seller and constitute the valid, legal and binding obligations of Seller,
enforceable against Seller in accordance with their terms, except as such
enforceability may be limited by applicable bankruptcy, moratorium, insolvency
or other similar laws affecting the rights of creditors generally and by general
equitable principles (whether enforcement is sought by proceedings in equity or
at law).
3.3 NO CONFLICTS. The execution, delivery and performance of this
Agreement and the other agreements, documents, certificates and instruments
required to be delivered by Seller pursuant to this Agreement will not result in
(a) any conflict with Seller's Articles of Incorporation and/or Bylaws as
amended to date, (b) any material breach or violation of or default under any
statute, law, rule, regulation, judgment, decree or order, or any material
mortgage, deed of trust, indenture or agreement relating to borrowed money, to
which Seller is a party or by which any of the Assets is bound, or (c) the
creation or imposition of any material lien, charge, pledge or encumbrance on
any Asset.
3.4 OWNERSHIP OF ASSETS. Seller has legal and beneficial ownership of all
tangible personal property owned by it and included in the Assets, and valid
leasehold interests in all real
property and tangible personal property held under lease and included in the
Assets, in each case subject to no lien or other encumbrance.
3.5 CONDITION OF ASSETS. None of the Assets has been disposed of as of
the Closing Date, except for obsolete or surplus equipment sold or disposed of
in the ordinary course of Seller's business. All such Assets are in good
operating condition and repair, subject only to normal wear and tear and are, as
of the Closing Date, usable in the ordinary course of business consistent with
Seller's past practices.
3.6 DISCLOSURES. Neither this Agreement, any schedule or exhibit to this
Agreement, nor any other agreement, documents or written statement made by
Seller or furnished by the Seller to the Buyer in connection with the
transactions contemplated hereby, contains any untrue statement of material fact
or omits to state any material fact necessary to make the statements contained
herein or therein not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to the Seller as follows:
4.1 ORGANIZATION, STANDING, ETC. Buyer is a corporation duly organized
and validly existing under the laws of the State of Minnesota. Buyer has all
requisite power and authority to execute and deliver this Agreement and the
other agreements, documents certificates and instruments required to be
delivered by Buyer pursuant to this Agreement and to perform its obligations
hereunder and thereunder.
4.2 AUTHORITY; BINDING EFFECT. The execution and delivery of this
Agreement and the other agreements, documents, certificates and instruments
required to be delivered by Buyer pursuant to this Agreement, and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of Buyer. This
Agreement and the other agreements, documents, certificates and instruments
required to be delivered by Buyer pursuant to this Agreement, have been duly
executed and delivered by Buyer and constitute valid, legal and binding
obligations of Buyer, enforceable against Buyer in accordance with their terms,
except as such enforceability may be limited by applicable bankruptcy,
moratorium, insolvency or other similar laws affecting the rights of creditors
generally and by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
ARTICLE V
COVENANTS
5.1 OBLIGATIONS OF THE PARTIES; BEST EFFORTS. The parties shall apply for
and diligently prosecute all applications for, and shall use their best efforts
promptly to obtain, such consents, authorizations and approvals from such
governmental authorities, lessors and other third parties as
shall be necessary to permit the consummation of the transactions
contemplated by this Agreement, and shall use their best efforts to effect
the consummation of the transactions contemplated by this Agreement.
5.2 CONSENTS. Anything in this Agreement to the contrary notwithstanding,
this Agreement shall not constitute an agreement to assign any agreement,
contract, license, lease, commitment, claim or right or any benefit arising
thereunder or resulting therefrom if any attempted assignment thereof, without
the consent of a third party thereto, would constitute a breach thereof or in
any way affect the respective rights of Buyer or Seller thereunder. If such
consent is not obtained, or if an attempted assignment thereof would be
ineffective or would affect the rights thereunder so that Buyer would not
receive all such rights, Seller will cooperate with Buyer in any reasonable
arrangement to provide Buyer the benefits thereunder, and any transfer or
assignment to Buyer of any agreement or contract which shall require the consent
or approval of any third party shall be made subject to such consent or approval
being obtained.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 CONDITIONS TO OBLIGATIONS OF THE SELLER. The obligation of Seller to
consummate the transactions contemplated by this Agreement shall be subject to
the satisfaction, on or before the Closing Date, of each and every one of the
following conditions, all or any of which may be waived, in whole or in part, by
Seller.
6.1.1 REPRESENTATIONS AND WARRANTIES OF THE BUYER. The
representations and warranties in Article IV shall be true and correct when made
and at and as of the Closing Date with the same effect as though made at and as
of such time, except to the extent that another date shall be specified therein.
Buyer shall have duly performed and complied in all material respects with all
agreements contained herein required to be performed or complied with by it at
or before the Closing.
6.1.2 ASSUMPTION OF LIABILITIES; DELIVER OF AGREEMENTS. Buyer
shall have taken all actions necessary to assume the Assumed Liabilities, and
shall have executed and delivered to the Seller the other documents required to
be delivered by Buyer hereunder.
6.1.3 CONSENTS. Any required consents or waivers in connection
with the execution, delivery and performance of this Agreement and the other
documents and agreements required hereunder shall have been obtained.
6.2 CONDITIONS TO OBLIGATIONS OF THE BUYER. The obligation of Buyer
to consummate the transactions contemplated by this Agreement shall be subject
to the satisfaction, on or before the Closing Date, of each and every one of the
following conditions, all or any of which may be waived, in whole or in part, by
Buyer.
6.2.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER. The
representations and warranties in Article III shall be true and correct when
made and at and as of the Closing Date with the same effect as though made at
and as of such time, except to the extent that another date shall be specified
therein. The Seller shall have duly performed and complied in all material
respects with all agreements contained herein required to be performed or
complied with by it at or before the Closing.
6.2.2 DELIVERIES BY SELLER. The Seller shall have executed and
delivered to the Buyer each of the documents and agreements to be delivered by
Seller under this Agreement.
ARTICLE VII
GENERAL PROVISIONS
7.1 ENTIRE AGREEMENT. This Agreement, including the Schedules and
Exhibits hereto (which are hereby incorporated by reference and made a part
hereof), supersedes all other prior agreements, understandings, representations
and warranties, oral or written, between the parties hereto in respect of the
subject matter hereof.
7.1 MODIFICATION; WAIVER. This Agreement may be modified only by a
written instrument executed by the parties hereto. Any of the terms and
conditions of this Agreement may be waived in writing at any time on or prior to
the Closing Date by the party entitled to the benefits thereof.
7.3 EXPENSES. Whether or not the transactions contemplated herein shall
be consummated, except as expressly provided in this Agreement, each party shall
pay all fees and expenses incurred by it in connection with this Agreement and
the consummation of the transactions contemplated hereby.
7.4 FURTHER ASSURANCES. Each party shall execute and deliver such further
instruments of transfer and assignment and other documents and take such other
actions as may reasonably be requested by the other party in order to transfer
to Buyer title to the Assets in accordance herewith and to consummate or
implement the transactions contemplated hereby.
7.6 NOTICES. The parties hereto shall keep each other apprised of their
addresses until all of the obligations arising under this Agreement have been
discharged. All notices, requests, demands, and other communications hereunder
shall be in writing and shall be deemed to have been duly given if delivered or
mailed, by registered mail, first-class postage paid, return receipt requested,
or any other delivery service with proof of delivery.
7.7 ASSIGNMENT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns, but shall not be assignable, by operation of law or otherwise, by
either party hereto without the prior written consent of the other party.
7.8 COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, and all of which shall constitute one and the
same instrument.
7.9 CAPTIONS. The section headings in this Agreement are for convenience
of reference only and shall not be deemed to alter or affect the meaning or
interpretation of any provision hereof.
7.10 GOVERNING LAW. This Agreement and the respective rights and
obligations of the parties hereto shall be governed by and construed, performed
and enforced in accordance with the laws of the State of Minnesota.
[CONTINUED ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their authorized representatives as of the date first above
written.
BUYER: SELLER:
INTERNATIONAL BUILDING CONCEPTS LTD. HOME BUILDERS INTERNATIONAL, INC.
By: By:
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Name: Name:
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Title: Title:
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Attest: Attest:
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Name: Name:
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Title: Title:
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SCHEDULE 1.1
PERSONAL PROPERTY
Model Home Mahogany Desks
Forklift Oak Desks
Dust Collector Conference Room Tables
Compressor Conference Room Chairs
Cement Mixer Loveseat
Belt Sander Wing-Back Chairs
Drills Book Shelves
Staple Guns Compaq 386
Bank Saw Citizen Printer
Drillpress NEC Monitor
Circular Saw IBP PSI
Sawbuck PSI 5VGA Monitor
Miter Saw HP Deskjet Printer
Chop Saw Headline Computer
Hand Saws Leading Edge Monitor
Routers HP Laserjet III
Grinders Panasonic Printer
Panel Saw HP Deskjet 550 Printer
Shop Vacuum White Board
Scale Filing Cabinets
SCHEDULE 1.3
ASSUMED LIABILITIES
Note Payable X. Xxxxx 7,000
Note Payable The Xxxxxxx X. Xxxxxx Institute 11,500
Note Payable X. Xxxxxxxxx 9,000
Note Payable International Building Systems, Inc. 10,000
Note Payable X. Xxxxxx 5,000
Convertible Debt International Building Systems, Inc. 360,000
Accounts Payable Trade 31,961
Accrued Payroll 27,799
Accrued Rent 10,000
Payroll Tax Liability Federal 36,184
Payroll Tax Liability State 8,419
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516,863
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XXXX OF SALE, ASSIGNMENT
AND
GENERAL CONVEYANCE
THIS XXXX OF SALE is made, executed and delivered as of the 10th day of
June, 1996, by HOME BUILDERS INTERNATIONAL, INC., a Minnesota corporation (the
"Seller"), to INTERNATIONAL BUILDING CONCEPTS LTD., a Minnesota corporation (the
"Buyer").
FOR THE GOOD AND VALUABLE CONSIDERATION given to the Seller under the Asset
Purchase Agreement, dated the date hereof, between the Buyer and the Seller (the
"Asset Purchase Agreement"), the receipt and sufficiency of which the Seller
hereby acknowledges, the Seller, by these presents, does hereby grant, sell,
convey, transfer, assign, set over, release and confirm unto the Buyer, and its
successors and assigns, all of the Seller's rights, title and interest in and to
the Assets (as defined in the Asset Purchase Agreement), all as the same shall
exist on the date hereof, TO HAVE AND TO HOLD the same unto the Buyer, its
successors and assigns forever.
The Seller does, for itself and its successors and assigns, hereby
reconfirm the representations and warranties set forth in the Asset Purchase
Agreement with respect to the Assets and does further represent and warrant (i)
that it alone has exclusive legal and beneficial ownership of all the Assets,
(ii) that the same in each case is subject to no lien, claim, charge, security
interest or other encumbrance of any kind or nature, and is sold, transferred
and conveyed free and clear of any such encumbrance of any kind or nature, and
(iii) that it has all requisite power and authority to sell and transfer the
Assets.
The Seller, for itself and its successors and assigns, by this Xxxx of
Sale, covenants and agrees that the Seller and its successors and assigns shall
do or cause to be done all such further acts and shall execute, acknowledge and
deliver, or shall cause to be executed, acknowledged, and delivered any and all
such further bills of sale, deeds, instruments, assignments, transfers,
conveyances, powers of attorney, consents, assurances and other documents and
instruments as the Buyer may reasonably request to vest in the Buyer and its
successors and assigns, the assets intended to be transferred, conveyed and
assigned to the Buyer hereby.
This Xxxx of Sale shall be governed by and construed and enforced in
accordance with the laws of the State of Minnesota applicable to agreements made
and performed entirely within such state.
IN WITNESS WHEREOF, the Sellers has executed this Xxxx of Sale on the day
and year first written above.
SELLER:
HOME BUILDERS INTERNATIONAL, INC.
By:
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Xxxxxx X. Xxxxxx, President
