ASSET PURCHASE AGREEMENT
This AGREEMENT dated this 26th day of October, 1999, by and between
Showcase Technologies, LLC, having its principal place of business at 00 Xxxx
Xxxxxxx Xx., 0xx Xxxxx, Xxxxx 0, Xxxxxx Xxxxxx, XX, 00000 (hereafter
"SHOWCASE"), 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, SHOWCASE is desirous of selling all rights, title and interest
relating to the product lines known as TopListing and Designer Studio.
WHEREAS, Xxx.xxx is desirous of acquiring all rights, title and interest
relating to the product lines known as TopListing and Designer Studio from
SHOWCASE.
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,
SHOWCASE 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 relating to the
product lines known as TopListing and Designer Studio in and to the business,
assets, goodwill, and rights of SHOWCASE in all or substantially all of its
assets, including technology, software, web sites, 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
SHOWCASE as they relate to TopListing and Designer Studio under express or
implied warranty (as from the suppliers of SHOWCASE 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 and Designer Studio being
exchanged with Xxx.xxx and all of SHOWCASE's rights, title and interest in and
to each, contract, agreement, purchase order or commitment to which SHOWCASE is
a party or in which SHOWCASE 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. SHOWCASE 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) SHOWCASE will transfer and deliver to
Xxx.xxx all other property that SHOWCASE may receive after the Closing Date in
respect of or arising out of the business conducted by TopListing and Designer
Studio.
1.3 SHOWCASE covenants that between the date hereof and the Closing Date
and, if reasonably requested by Xxx.xxx, after the Closing Date, SHOWCASE 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 SHOWCASE 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
SHOWCASE, TopListing or Designer Studio.
3. Closing. The Closing hereunder (the "Closing") shall take place at ___ on
the 1st day of November 1999, at 00 Xxxx Xxxxxxx Xx., 0xx Xxxxx, Xxxxx 0, Xxxxxx
Xxxxxx, XX.
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 SHOWCASE or its assignees.
5. Representations and Warranties of SHOWCASE. SHOWCASE hereby represents
and warrants as follows:
5.1 SHOWCASE is a LLC. On or before closing SHOWCASE 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. SHOWCASE 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 SHOWCASE in the
manner heretofore conducted.
5.2 SHOWCASE has two subsidiaries, "Designer Studio " and "TopListing"
5.3 SHOWCASE is fully empowered to enter into this transaction.
5.4 SHOWCASE has full power and authority, corporate and otherwise, to
enter into this Agreement on behalf of TopListing and Designer Studio and to
cause SHOWCASE to assume and perform its, his or her obligations hereunder. The
execution and delivery of this Agreement and the performance by SHOWCASE of its
obligations hereunder have been duly authorized by the shareholders and
directors of SHOWCASE and no further action or approval, corporate or otherwise,
is required in order to constitute this Agreement as a binding and enforceable
obligation of SHOWCASE. The execution and delivery of this Agreement and the
performance by SHOWCASE of its obligations hereunder do not and will not violate
any provision of the Certificate of Incorporation or By-Laws of SHOWCASE 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 SHOWCASE is a party or which is or
purports to be binding upon SHOWCASE 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 SHOWCASE in order to constitute this agreement as a binding and
enforceable obligation of SHOWCASE in accordance with its terms.
5.5 SHOWCASE 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 being transferred.
5.6 SHOWCASE 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
consultants.
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 SHOWCASE TECHNOLOGIES, LLC
BY: /s/XXXXXXX XXXX BY: /s/XXXX XXXXXXXXX
XXXXXXX XXXX XXXX XXXXXXXXX
Director & Secretary PRESIDENT
EXHIBIT I
ASSETS & ALLOCATION
CUSTOMER LIST
Name
Address
City, State, zip
Phone
INVENTORY
RAW (MATERIAL)
Quantity Description Value
FINISHED
Quantity Description Value
TOOLING -PATERNS - DIES
Quantity Description Value
DRAWINGS
Description Value
SPECIFICATIONS
Description Value
PATENTS
Description Value
TRADEMARKS/TRADENAMES/COPYRIGHTS
Description Value
VENDOR LISTS
Name
Address
City, State, zip
Phone
CONTRACTS, AGREEMENTS, PURCHASE ORDERS
Description Value
