EXHIBIT 10.15
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is made as of this 10th day of
January, 1997 by and between FENCO TOOL & DIE, LTD., a Florida limited
partnership ("Seller"), and HIREL TECHNOLOGIES, INC., a Florida corporation
("Buyer").
WI T N E S S E T H:
WHEREAS, Seller is engaged in the business of designing, prototyping,
manufacturing, assembling and marketing components for machined and/or
manufactured parts (the "Business"); and
WHEREAS, subject to the terms and conditions set forth herein, Seller
desires to sell to Buyer, and Buyer desires to purchase from Seller, the
Purchased Assets (as hereinafter defined).
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of the parties hereinafter expressed, it is hereby agreed as follows:
ARTICLE I
RECITALS, EXHIBITS
The foregoing recitals are true and correct and, together with the
exhibits referred to hereafter, are hereby incorporated into this Agreement by
this reference. Definitions of terms that are not set forth in text are set
forth in Article V.
ARTICLE II
PURCHASE AND SALE OF ASSETS, ASSUMPTION OF LIABILITIES
2.1 Purchase and Sale. In exchange for the Purchase Price (as hereinafter
defined) and subject to the terms and conditions hereof, Seller hereby sells,
transfers, conveys and delivers to Buyer all Seller's Assets and the Business as
a going concern ("Purchased Assets") and Buyer hereby purchases the Purchased
Assets. Upon the execution hereof, Seller shall execute and deliver to Buyer a
Xxxx of Sale ("Xxxx of Sale") in the form of Exhibit A hereto. The Purchased
Assets include the Assets identified on Exhibit 1 to the Xxxx of Sale.
2.2 Purchase Price. The purchase price for the Purchased Assets shall be
Sixty Thousand Dollars ($60,000) ("Cash Portion"), plus the assumption of those
liabilities set forth on Exhibit B hereto ("Purchase Price"). The Cash Portion
shall be paid on or before January 31, 1997.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties to Buyer,
each of which is true and correct on the date hereof:
3.1 Corporate Existence and Qualification. Seller is a limited
partnership, duly organized, validly existing and in good standing under the
Laws of the State of Florida. Seller has the power and authority to own and use
its properties and to transact the business in which it is engaged, holds all
franchises, licenses and permits necessary and required therefor and is not
required to be licensed or qualified to do business in any other jurisdiction.
Seller has no subsidiaries.
3.2 Authority and Approval of Agreement by Seller.
(a) The execution and delivery of this Agreement by Seller and the
performance of all Obligations of Seller hereunder have been duly authorized and
approved by the Board of Directors and shareholders of the general partner of
Seller pursuant to all applicable Laws. Seller has full power and authority to
enter into this Agreement and to perform its Obligations hereunder.
(b) This Agreement and each of the other documents, instruments and
agreements executed by Seller in connection herewith constitutes the valid and
legally binding agreements of Seller, enforceable against Seller in accordance
with its terms.
3.3 No Violations. The execution, delivery and performance by Seller of
this Agreement and all other documents, instruments and agreements executed in
connection herewith, and the consummation by Seller of the transactions
contemplated hereby, does not and will not (i) constitute a violation of or
default (either immediately, upon notice or upon lapse of time) under Seller's
Certificate or Agreement of Limited Partnership, the Articles of Incorporation
or Bylaws of Seller's general partner, any provision of any Contract to which
Seller or Seller's Assets may be bound, any Judgment or any Law; or (ii) result
in the creation or imposition of any Encumbrance upon, or give to any third
person any interest in or right to, any of the Purchased Assets.
3.4 Purchased Assets. Seller has good and marketable title to all the
Purchased Assets free and clear of all Encumbrances and there exists no
restriction on the transfer or use of the Purchased Assets. Upon the execution
hereof, legal and beneficial ownership of the Purchased Assets will be
transferred to Buyers free and clear of all Encumbrances.
3.5 Taxes. Except as set forth on Exhibit B, all Taxes due, owing and
payable, or which may be due, owing and payable by the Seller have been fully
paid. No claim for any Tax due from or assessed against the Seller is being
contested. None of the Seller's Tax returns or reports have been audited by the
Internal Revenue Service or any state or local Tax authority, and the Seller has
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not received any notice of deficiency or other adjustment from the Internal
Revenue Service or any state or local Tax authority. There are no agreements,
waivers, or other arrangements providing an extension of time with respect to
the assessment of any Tax against the Seller, nor are there any Tax Proceedings
now pending or threatened against the Seller. The Seller has made all deposits
required by Law, to be made with respect to employees' withholding and other
employment taxes. No state of facts exists or has existed, nor has any event
occurred, which would constitute grounds for the assessment of any further Tax
against the Seller.
3.6 Permits. Seller has obtained and presently hold all Permits which are
required under applicable Law to conduct the Business as and where currently
conducted. All such Permits are presently in effect, are included in the
Purchased Assets and are transferable to the Buyer, and no consent, approval or
authorization of any governmental or regulatory authority or person or entity is
required in connection with the transfer of any such Permit in connection with
the transactions contemplated by this Agreement. Seller is not in default under,
nor has it received any notice of any claim of default or any other notice with
respect to, any such Permit.
3.7 Intangibles. Seller does not infringe upon or unlawfully or wrongfully
uses any Intangible owned or claimed by any other person or entity. No present
or former employee of the Seller or any other person or entity owns or has any
proprietary, financial or other interest, direct or indirect, in whole or in
part, in any Intangible which the Seller owns, possesses or uses in the
Business. Seller is not a party to a noncompetition, confidentiality or
nondisclosure agreement, nor is any employee of the Seller a party to any such
agreement that relates to or could have material adverse effect on the Business.
3.8 Proceedings. Seller is not a party to, the subject of, or threatened
with any Proceeding nor, to the best of the Seller's knowledge, is there any
basis for any Proceeding. Seller is not contemplating the institution of any
Proceeding.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties to Seller,
each of which is true and correct on the date hereof:
4.1 Existence and Qualification. Buyer is a corporation duly organized,
validly existing and in good standing under the Laws of the State of Florida.
Buyer has the power and authority to own and use its properties and to transact
the business in which it is engaged, holds all franchises, licenses and permits
necessary and required therefor and is not required to be licensed or qualified
to do business in any other jurisdiction.
4.2 Authority and Approval of Agreement by Buyer.
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(a) The execution and delivery of this Agreement by Buyer and the
performance of all Obligations of Buyer hereunder and thereunder have been duly
authorized and approved by Buyer pursuant to all applicable Laws. Buyer has full
power and authority to enter into this Agreement and to perform its Obligations
hereunder and thereunder.
(b) This Agreement and each of the other documents, instruments and
agreements executed by Buyer in connection herewith constitutes the valid and
legally binding agreements of Buyer, enforceable against Buyer in accordance
with its terms.
4.3 No Violations. The execution, delivery and performance by Buyer of
this Agreement, the Note and all other documents, instruments and agreements
executed in connection herewith and therewith, and the consummation by Buyer of
the transactions contemplated hereby or thereby, does not and will not (i)
constitute a violation of or default (either immediately, upon notice or upon
lapse of time) under Buyer's Articles of Incorporation or By-laws, any provision
of any Contract to which Buyer may be bound, any Judgment or any Law; or (ii)
result in the creation or imposition of any Encumbrance upon, or give to any
third person any interest in or right to, any of the Purchased Assets.
ARTICLE V
DEFINED TERMS
All defined terms used in this Agreement and not specifically defined in
context are as defined in this Article V.
5.1 "Asset" means any real, personal, mixed, tangible or intangible
property of any nature whatsoever, including, without limitation, Equipment,
accounts receivable, inventory, permits, intangibles and Contract rights.
5.2 "Contract" means any written or oral contract, agreement, order or
commitment of any nature whatsoever, including, without limitation, any sales
order, purchase order, lease, sublease, license agreement, sublicense agreement,
loan agreement, security agreement, guarantee, management contract, employment
agreement, consulting agreement, partnership agreement, buy-sell agreement,
option, warrant, subscription, call or put.
5.3 "Encumbrance" means any lien, security interest, pledge, mortgage,
easement, leasehold, assessment, covenant, restriction, reservation, conditional
sale, prior assignment, or any other encumbrance, claim, burden or charge of any
nature whatsoever.
5.4 "Equipment" means any equipment, machinery, fixtures, furniture,
leasehold improvements, vehicles, office equipment, office supplies or other
tangible personal property of any nature whatsoever.
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5.5 "Intangible" means any name, corporate name, partnership name,
fictitious name, trademark, trademark application, trade name, brand name,
slogan, trade secret, know-how, patent, patent application, copyright, copyright
application, design, formula, invention, blueprint, product right, software
right, license, franchise, authorization or any other intangible property of any
nature whatsoever.
5.6 "Judgment" means any order, writ, injunction, fine, citation, award,
decree, or any other judgment of any nature whatsoever of any foreign, federal,
state or local court, any governmental, administrative or regulatory authority,
or any arbitration tribunal.
5.7 "Law" means any provision of any law, statute, ordinance,
constitution, charter, treaty, rule or regulation of any foreign, federal, state
or local governmental, administrative or regulatory authority.
5.8 "Obligation" means any debt, liability or obligation of any nature
whatsoever, whether secured, unsecured, recourse, nonrecourse, liquidated,
unliquidated, accrued, absolute, fixed, contingent, ascertained, unascertained,
known, unknown obligations under executory Contracts.
5.9 "Permit" means any license, permit, approval, waiver, order,
authorization, right or privilege of any nature whatsoever, granted, issued,
approved or allowed by any foreign, federal, state or local governmental,
administrative or regulatory authority.
5.10 "Proceeding" means any demand, claim, suit, action, litigation,
investigation, study, arbitration, administrative hearing, or any other
proceeding of any nature whatsoever.
5.11 "Tax" means (a) any foreign, federal, state or local income, profits,
gross receipts, franchise, sales, use, occupancy, general property, real
property, personal property, intangible property, transfer, fuel, excise,
accumulated earnings, personal holding company, unemployment compensation,
social security, withholding taxes, payroll taxes, or any other tax of any
nature whatsoever, (b) any foreign, federal, state or local organization fee,
qualification fee, annual report fee, filing fee, occupation fee, assessment,
rent, or any other fee or charge of any nature whatsoever, or (c) any
deficiency, interest or penalty imposed with respect to any of the foregoing.
ARTICLE VI
MISCELLANEOUS
6.1 Notices. All notices required or allowed by this Agreement shall be
sent by certified or registered mail, return receipt requested, postage prepaid,
or by prepaid overnight courier (e.g., Federal Express) or by personal delivery
with receipt acknowledged in writing addressed to the party or person to whom
such notice is to be given at the following addresses or by fax transmission at
the following fax numbers. Notice given by certified or registered mail as
aforesaid shall be effective on the second business day after mailing of same;
notices given by overnight courier shall be effective on the next business day
following same being deposited with the overnight courier in time for such
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next day delivery; notices given by personal delivery with receipt acknowledged
in writing shall be effective when received; notices given by fax transmission
which is completed later than 4:00 p.m. on a business day shall be given at
10:00 a.m. on the next following business day:
(a) If to Seller:
Fenco Tool & Die, Ltd.
0000 Xxxxxxxxxx Xxxxxxx #0
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: President
(b) If to Buyer:
Hirel Technologies, Inc.
000 X.X. 00xx Xxxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attention: President
All notices sent in any other manner shall be deemed given when actually
received by the party to whom the same is directed. A notice may be given either
by a party or such party's attorney-at-law. Any party may change the address or
fax numbers to which notices are being sent or the person to receive notices by
giving notice of such change in accordance with the foregoing provisions.
6.2 Entire Agreement. This Agreement, including the Exhibits attached
hereto and the documents delivered pursuant hereto, sets forth all the promises,
covenants, agreements, conditions and understandings between the parties hereto,
and supersedes all prior and contemporaneous agreements, understandings,
inducements or conditions, expressed or implied, oral or written, except as
herein contained. No changes of or modifications or additions to this Agreement
shall be valid unless the same shall be in writing and signed by the parties
hereto.
6.3 Binding Effect; Assignment. This Agreement shall be binding upon the
parties hereto, their beneficiaries, heirs and administrators. No party may
assign or transfer its interests herein, or delegate its duties hereunder,
without the written consent of the other party.
6.4 No Waiver. No waiver of any provision of this Agreement shall be
effective, unless it is in writing and signed by the party against whom it is
asserted, and any such written waiver shall only be applicable to the specific
instance to which it relates and shall not be deemed to be a continuing or
future waiver.
6.5 Gender and Use of Singular and Plural. All pronouns shall be deemed to
refer to the masculine, feminine, neuter, singular or plural, as the identity of
the party or parties or their personal representatives, successors and assigns
may require.
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6.6 Counterparts. This Agreement and any amendments may be executed in one
or more counterparts, each of which shall be deemed an original and all of which
together will constitute one and the same instrument.
6.7 Headings. The article and section headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the meaning or
interpretation of the Agreement.
6.8 Governing Law. This Agreement shall be construed in accordance with
the Laws of the State of Florida and any proceeding arising between the parties
in any manner pertaining or related to this Agreement shall, to the extent
permitted by law, be held in Broward County, Florida.
6.9 Further Assurances. The parties hereto will execute and deliver such
further instruments and do such further acts and things as may be reasonably
required to carry out the intent and purposes of this Agreement.
6.10 Litigation. If any party hereto is required to engage in litigation
against any other party hereto, either as plaintiff or as defendant, in order to
enforce or defend any of its or his rights under this Agreement, and such
litigation results in a final judgment in favor of such party ("Prevailing
Party"), then the party or parties against whom said final judgment is obtained
shall reimburse the Prevailing Party for all direct, indirect or incidental
expenses incurred by the Prevailing Party in so enforcing or defending its or
his rights hereunder, including, but not limited to, all attorneys' fees,
paralegals' fees and all sales tax thereon, and all court costs and other
expenses incurred throughout all negotiations, trials or appeals undertaken in
order to enforce the Prevailing Party's rights hereunder.
THIS SPACE INTENTIONALLY BLANK
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year set forth above.
WITNESS: SELLER:
FENCO TOOL & DIE, LTD., a Florida limited
partnership
By: F & M INVESTMENTS, INC., its general
partner
By:
Name:
Title:
BUYER:
HIREL TECHNOLOGIES, INC., a Florida
corporation
By:
Name:
Title:
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