Exhibit 10.2
Page 8 of 5
ASSET PURCHASE AGREEMENT
This AGREEMENT dated this ___ day of October, 1999, by and between
TopListing (a sole proprietorship owned by Xxxx Xxxxxxxxx only), having its
principal place of business at 00 Xxxx Xxxxxxx Xx., 0xx Xxxxx, Xxxxx 0, Xxxxxx
Xxxxxx, XX, 00000 (hereafter "TopListing"), and XxxXxxxxxx.xxx Corporation, a
Colorado corporation having its principal place of business at 0000 Xxxxx Xx.,
Xxxxx 000, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 (hereafter "Xxx.xxx").
WHEREAS, TOPLISTING is desirous of selling all its assets to Xxx.xxx.
WHEREAS, Xxx.xxx is desirous of acquiring all, or substantially all, of the
assets of the TOPLISTING including XxxxxxxxXxxxxx.xxx, an operating subsidiary
of TOPLISTING;
IT IS HEREFORE AGREED that in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Exchange of Assets.
1.1 Subject to the terms and conditions of this Agreement and the
performance by the parties hereto of their respective obligations hereunder,
TOPLISTING shall exchange, transfer, convey, assign and deliver to Xxx.xxx, and
Xxx.xxx shall receive, acquire and accept on the Closing Date (as such term is
hereinafter defined) all of the rights, title and interest of TOPLISTING in and
to the business, assets, goodwill, and rights of TOPLISTING in all or
substantially all of its assets, including customer lists, inventory, as
specified in the list of Assets attached hereto as Exhibit I (the "Assets &
Allocation"), as the same shall exist on the Closing Date, including, without
limitation, rights in tradenames, trademarks and copyrights, patent and patent
pendings, all rights relating to or arising out of the business conducted by
TOPLISTING under express or implied warranty (as from the suppliers of
TOPLISTING with respect to the Assets being transferred to Xxx.xxx) , all books
and records, correspondence and files of or relating to the business or Assets
of TOPLISTING being exchanged with Xxx.xxx and all of TOPLISTING's rights, title
and interest in and to each, contract, agreement, purchase order or commitment
to which TOPLISTING is a party or in which TOPLISTING has rights (all of such
assets are collectively referred to hereinafter as the "Assets"), free and clear
of all liabilities, obligations, liens and encumbrances, except as expressly
assumed by Xxx.xxx under Section 2 below.
1.2 The transfer of the Assets as herein provided shall be effected by
bills of sale, endorsements, assignments, drafts, checks, deeds and other
instruments of transfer and conveyance delivered to Xxx.xxx on the Closing Date
in form sufficient to transfer the Assets as contemplated by this Agreement and
as shall be reasonably requested by Xxx.xxx. TOPLISTING covenants that (i) it
will, at any time and from time to time after the Closing Date, execute and
deliver such other instruments of transfer and conveyance and do all such
further acts and things as may be reasonably requested by Xxx.xxx to transfer
and deliver to Xxx.xxx or to aid and assist Xxx.xxx in collecting and reducing
to possession, any and all of the Assets; (ii) Xxx.xxx, after the Closing Date,
shall have the right and authority to collect, for the account of Xxx.xxx, all
checks, notes and other evidences of indebtedness or obligations to make payment
of money and other items which shall be transferred to Xxx.xxx as provided and
to endorse with the name of Xxx.xxx any such checks, notes or other instruments
received after the Closing Date; and (iii) TOPLISTING will transfer and deliver
to Xxx.xxx all other property that TOPLISTING may receive after the Closing Date
in respect of or arising out of the business conducted by TOPLISTING.
1.3 TOPLISTING covenants that between the date hereof and the Closing Date
and, if reasonably requested by Xxx.xxx, after the Closing Date, TOPLISTING
shall use its best efforts to obtain the consent of any parties to any
contracts, licenses, leases, commitments, sales orders, purchase orders or other
agreements being assigned by TOPLISTING to Xxx.xxx hereunder as shall be
reasonable requested by Xxx.xxx. If any such required consent is not obtained,
this Agreement shall constitute an agreement to assign the instrument relating
thereto to Xxx.xxx.
2. Assumption of Liabilities. Xxx.xxx shall assume no liabilities of
TOPLISTING.
3. Closing. The Closing hereunder (the "Closing") shall take place at ___ on
the ___ day of October, 1999 at _________________________ or at such other time
and place as may be agreed by Xxx.xxx and TOPLISTING (the "Closing Date").
4. Exchange Terms; Allocation.
4.1 In consideration of the exchange and transfer of the Assets herein
contemplated, on the Closing Date, Xxx.xxx shall deliver at Closing:
a) $100,000 US Funds (less deposit of $2,500);
b) 300,000 shares of Banyan Corporation common stock valued at the
previous days closing bid price. Said shares shall be issued
exempt from registration under Rule 144.
to TOPLISTING or its assignees.
5. Representations and Warranties of TOPLISTING. TOPLISTING hereby
represents and warrants as follows:
5.1 TOPLISTING is a sole proprietorship. On or before closing TOPLISTING
shall establish to the satisfaction of Xxx.xxx that it has title to the Assets
and authority to convey the same in accordance with the terms of this Agreement.
TOPLISTING has taken no action and has not failed to take any action, which
action or failure would preclude or prevent Xxx.xxx from conducting the business
of TOPLISTING in the manner heretofore conducted.
5.2 TOPLISTING has one subsidiary, "XxxxxxxxXxxxxx.xxx"
5.3 TOPLISTING is fully empowered to enter into this transaction.
5.4 TOPLISTING has full power and authority, corporate and otherwise, to
enter into this Agreement on behalf of the TOPLISTING and to cause the
TOPLISTING to assume and perform its, his or her obligations hereunder. The
execution and delivery of this Agreement and the performance by TOPLISTING of
its obligations hereunder have been duly authorized by the owner of TOPLISTING,
Xxxx Xxxxxxxxx, and no further action or approval, corporate or otherwise, is
required in order to constitute this Agreement as a binding and enforceable
obligation of TOPLISTING. The execution and delivery of this Agreement and the
performance by TOPLISTING of its obligations hereunder do not and will not
violate any provision of the Certificate of Incorporation or By-Laws of
TOPLISTING and do not and will not conflict with or result in any breach of any
condition or provision of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any of the Assets
by reason of the terms of any contract, mortgage, lien, lease, agreement
indenture, instrument, judgment or decree to which TOPLISTING is a party or
which is or purports to be binding upon TOPLISTING or which affects or purports
to affect any of the Assets.
5.4 No action, approval, consent or authorization, including but not limited
to any action, approval, consent or authorization by any governmental or
quasi-governmental agency, commission, board, bureau or instrumentality is
necessary as to TOPLISTING in order to constitute this agreement as a binding
and enforceable obligation of TOPLISTING in accordance with its terms.
5.5 TOPLISTING has not incurred any obligation or liability (absolute or
contingent, liquidated or unliquidated, xxxxxx or inchoate) except current
obligations and liabilities incurred in the ordinary course of their businesses
which would act as a lien against the Assets.
5.6 TOPLISTING has not leased or effected any transfer of any of the Assets.
6. Representations and Warranties of Xxx.xxx. Xxx.xxx hereby represents and
warrants that on the closing date all of the following will be true:
6.1 Xxx.xxx is a corporation duly organized, validly existing and
in good standing under the laws of the state of Colorado.
6.2 Xxx.xxx is a wholly owned subsidiary of Banyan Corporation.
7. Miscellaneous.
a) This Agreement shall constitute the entire agreement of the parties
hereto and may not be amended, except by written consent of the parties hereto
in writing executed by them.
b) This Agreement shall be construed according to the laws of the State of
Colorado and shall be enforceable in any court of competent jurisdiction located
in the State of Colorado.
c) This Agreement shall insure to the benefit of the parties and their
successors in interest, if any, but shall not otherwise be assignable.
d) Where in this Agreement one gender or the other is used, of the singular
or the plural is used, and if to effect the intent of the parties hereto the use
of the other gender or number is needed then it is understood that such gender
or both or such number or both is implied.
e) This Agreement may be executed in counterparts and receipt of facsimile
transmission of signatures shall be sufficient to effect acceptance of this
Agreement, although the parties hereto agree to submit within a reasonable time
duplicate original signed copies of this Agreement to each other.
8. Indemnification.
Each party to this Agreement shall indemnify and hold harmless each other
party at all times after the date of closing against and in respect of any
liability, damage or deficiency, all actions, suits, proceedings, demands,
assessments, judgments, costs and expenses, including attorney's fees incident
to any of the foregoing, resulting from any misrepresentation, breach of
covenant or warranty for non-fulfillment of any agreement on the part of such
party under this Agreement, or from any misrepresentation in or omission from
any certificate furnished or to be furnished to a party hereunder. Subject to
the terms of this Agreement, the defaulting party shall reimburse the other
party or parties on demand for any reasonable payments made by said parties at
any time after the date of closing, in respect to any liability or claim to
which the foregoing indemnity relates, if such payment is made after reasonable
notice to the other party to defend or satisfy the same, and such party failed
to defend or satisfy the same.
9. Expenses. Each party shall pay its own expenses.
10. Brokers. Xxx.xxx shall not be liable for the payment of any finder's or
consultant's.
IN WITNESS WHEREOF THE PARTIES HERETO, CORPORATE PARTIES HAVING BEEN DULY
AUTHORIZED BY THEIR RESPECTIVE BOARDS OF DIRECTORS, HAVE SET THEIR HANDS AND
SEALS ON THE DATE FIRST ABOVE WRITTEN.
XXXXXXXXXX.XXX CORPORATION TOPLISTING
BY: /S/XXXXXXX XXXX BY: /S/ XXXX XXXXXXXXX
XXXXXXX XXXX XXXX XXXXXXXXX
Director & Secretary Owner
PROMISSORY NOTE
$80,000.00 November 1, 0000
Xxxxxxxx Xxxxxxx, XX
FOR VALUE RECEIVED, the undersigned , DoubleCase Corporation, a
Kansas Corporation, hereby promised to pay to Xxxx Xxxxxxxxx., or holder, the
sum of eighty thousand dollars ($80,000) together with interest thereon at the
rate of six percent (6%) per annum, said interest to commence on the 1st. day of
November, 1999.
The principal sum, together with accumulated interest, shall be due and
payable on or before November 1, 2000
Payments shall be made pursuant to the Asset Purchase Agreement of
October 26, 1999, by and between DoubleCase Corporation and Showcase
Technologies which are: 15% of the gross revenue of DoubleCase Corporation paid
on the 15th of each month on sales of the month prior.
It is further specifically understood and agreed that the maker hereof
shall have the right, without penalty, to prepay prior to its becoming due any
installment due hereunder, or may prepay without penalty, all or any part of the
unpaid balance due hereunder.
All signers, endorsers and parties to this instrument waive
presentment, notice of dishonor, protest and expressly agree that this note, or
any payment thereunder, may be extended from time to time without in any way
affecting the liability of the makers and endorsers hereof; and this note is to
be construed according to the laws of Colorado.
DoubleCase Corporation
BY:________________________
Xxxxxxx Xxxx President
BULK XXXX OF SALE
Pursuant to the Asset Purchase Agreement dated the ___ day of October, 1999,
(hereafter "APA") by and between TopListing, a sole proprietorship owned by Xxxx
Xxxxxxxxx, and XxxXxxxxxx.xxx Corporation, a Colorado Corporation and a wholly
owned subsidiary of Banyan Corporation, this Bulk Xxxx of Sale hereby confirms
and perfects the transfer of assets provided by the "APA".
Upon cleared funds from Banyan Corporation check number ______ written on
October 26, 1999, in the amount of $97,500, receipt hereby acknowledged,
combined with a previous deposit of $2,500 which occurred August 17, 1999, (for
a grand total of $100,000 pursuant to paragraph 4.1(a) of the "APA") and with
the receipt of 300,000 shares of Banyan Corporation common stock (pursuant to
paragraph 4.1(b) of the "APA") all of the Assets as contemplated in Paragraph 1
and elsewhere in the "APA" are hereby transferred, assigned and conveyed from
TopListing to XxxXxxxxxx.xxx.
XxxXxxxxxx.xxx Corporation TopListing
BY:/S/ XXXXXXX XXXX BY: /s/XXXX XXXXXXXXX
XXXXXXX XXXX XXXX XXXXXXXXX
Director & Secretary Owner
Date: Date:
