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Exhibit 10.0
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is
made as of January __ , 2005, by and among AIMS WORLDWIDE, INC.
("Buyer"), PRIME TIME CABLE, INC. (“Seller”)
and WILLIAM STRICKLER (“Strickler”).
WITNESSETH:
WHEREAS, Seller provides facilities based
broadband services to residential and commercial properties and
provides satellite installation and consulting services in
connection therewith (all of which, together with all business
operations of Seller, is herein referred to as the
“Business”); and
WHEREAS, Seller owns certain real and personal
property used in the operation of the Business;
WHEREAS, Seller acquired the Business from
Strickler who had conducted the Business as a sole proprietor
and who is the controlling shareholder of Seller; and
WHEREAS, Seller desire to sell to Buyer and
Buyer desires to purchase from Seller all of Seller’s
right, title and interest in and to the Purchased Assets which
include, without limitation, the Assumed Agreements, the
Equipment Leases, the real property and the tangible and
intangible assets (including, without limitation, various
agreements) used in or held for use in connection with the
Business which are set forth on Schedule 1.01 to this Agreement;
and
WHEREAS, Seller and Buyer desire to enter into
this Agreement to effect the purchase and sale of such Purchased
Assets free and clear of all liens and encumbrances pursuant to
the terms set forth herein;
NOW THEREFORE, in consideration of the covenants
and agreements contained herein, and for other valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
ARTICLE I
DEFINITIONS
1.01
In this Agreement:
“ Assumed Agreements ” means
all contracts and agreements of any nature assumed by the Buyer
hereunder and listed on Schedule 1.01.
" Bankruptcy " means with respect to any
Party (i) the making by the Party of a general assignment
for the benefit of creditors or an admission in writing of the
Party's inability to pay its debts when due; (ii) the
commencement by or against the Party of any liquidation,
dissolution, bankruptcy, reorganization, insolvency, or other
proceeding for the relief of financially distressed debtors, or
the appointment for the Party, or for a substantial part of the
Party's assets, of a receiver, liquidator, custodian,
or trustee, and if any of the events referred to in this item
(ii) occurs involuntarily, the failure of the same to be
dismissed, stayed, or discharged within ninety days; or
(iii) the entry of an order for relief against the Party
under Title II of the United States Bankruptcy Code.
" Closing " means the consummation of the
transactions contemplated in this Agreement in accordance
with its provisions.
" Closing Date " means the date on which
the Closing occurs.
" Environmental Laws " means the
Comprehensive Environmental Response, Compensation and Liability
Act, the Resource Conservation and Recovery Act ("RCRA"), the
Clean Water Act, the Toxic Substances Control Act, the Hazardous
Materials Transportation Act, the Clean Air Act, super lien laws
and any other Federal, state or local statute, law, regulation,
ordinance, code or rule or judicial or administrative order or
decree regulating relating to or imposing liability or standards
of conduct concerning any Hazardous Materials, and all
amendments thereto, now or at any time hereinafter in
effect.
" Equipment Leases " means those certain
equipment leases listed in Schedule 1.01 attached hereto.
" Hazardous Materials " means those
materials, wastes and substances defined as hazardous substances
in 42 U.S.C. § 9601(14), and all other materials, wastes
and substances (including, without limitation, solids, liquids
and gases), now or hereafter designated or defined as hazardous,
toxic, dangerous or otherwise regulated under any federal, state
or local environmental pollution, contamination, protection or
waste management, treatment, storage, handling or disposal and
any other materials or substances (including, without
limitation, petroleum and other substances, specifically
excluded from the definition of hazardous substances under 42
U.S.C. § 9601(14)), the exposure to which is prohibited,
limited or regulated by any governmental or regulatory authority
or under any Environmental Laws, or which does or could pose a
hazard to human health or the environment.
" Liens " means all liens, liabilities,
claims, mortgages, obligations, restrictions, or other
encumbrances of any kind or nature, whether absolute, legal,
equitable, accrued, contingent or otherwise, including without
limitation any rights of first refusal.
" Material Breach " means the occurrence
of any of the events set forth in Section 8.02 and 8.03 of this
Agreement.
" Permits " means all state and local
zoning, building, and other permits required to operate the
Business as it is currently operated.
" Person " means an individual,
corporation, association, partnership, joint venture, trust,
estate, or other entity or organization, other than either Party
hereto.
" Purchased Assets " means all tangible
and intangible assets owned by Seller which are reasonably
necessary for the operation of the Business, including any
such assets acquired after the date of this Agreement until
the date of Closing, except as otherwise provided herein but
excluding any bank accounts or securities in public companies
owned by either the Seller or Strickler. A Schedule of the
Purchased Assets is attached hereto as Schedule 1.01, and shall
be revised and delivered to Buyer at least ten (10) days before
Closing.
" Purchase Price " means the
consideration to be paid by Buyer to Seller hereunder, as
provided in Section 2.05 of this Agreement.
“ Taxes ” means all federal,
state, local, foreign and other sales, use, ad valorem,
transfer, franchise, lease, service, service use, withholding,
payroll, employment, excise, property or other taxes, fees,
assessments or charges of any kind whatever in connection with
the use, sale or transfer of the Purchased Assets or the
operation of the Business prior to the Closing, together with
any interest and any penalties, additions to tax or additional
amounts with respect thereto, and the term “Tax”
means any one of the foregoing Taxes.
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.01
Purchase and Sale of Assets .
Subject to the terms and conditions hereof, on
the Closing Date, Seller agrees to and shall assign, transfer,
sell, convey and deliver to Buyer all of Seller’s right,
title and interest in and to all of the Purchased Assets, free
and clear of all Liens.
2.02
Assumed Liabilities . In connection
with the purchase and sale of the Purchased Assets pursuant to
Section 2.01, the Purchaser shall not assume any of
Seller’s debts liabilities, contracts or obligations (both
known and unknown of any nature whatsoever) in connection with
the Business existing at or incurred prior to Closing, or
arising out of transactions or events occurring prior to
Closing, except for those liabilities and obligations for the
following:
(a)
that certain Lease Agreement dated as of
February 1, 2003 between Vineland Properties, Inc. as
landlord and Seller, as tenant;
(b)
the Equipment Leases, including telephone lines
(land, cellular and wireless), auto insurance, and other
insurance policies;
(c)
the Assumed Agreements; and
(d)
all obligations, responsibilities, duties, and
liabilities directly or indirectly arising out of, relating to,
or resulting from the Purchased Assets being acquired by
Purchaser to the extent that such first exist, are incurred, or
arise after the Closing Date
(collectively referred to as the “Assumed
Liabilities”).
2.03
Retained Liabilities . The
Purchaser does not assume, and shall not be responsible for, any
of the following liabilities or obligations of the Seller
(collectively, the “Retained Liabilities”):
(a)
expenses of the Seller payable to third parties
arising in connection with the Seller’s execution,
delivery and performance of this Agreement or any of the
transactions contemplated hereby (including, without limitation,
legal and accounting fees);
(b)
liabilities or obligations for Taxes that relate
to the Purchased Assets for periods or portions thereof ending
prior to the date of Closing;
(c)
any liability for or related to indebtedness of
Seller to banks, financial institutions or other persons or
entities with respect to borrowed money;
(d)
any liabilities of Seller under any leases,
contracts, insurance policies, commitments, sales orders,
purchase orders, Permits which are not otherwise Assumed
Liabilities;
(e)
any claims against or liabilities of Seller for
injury to or death of persons or damage to or destruction of
property (including any workmen’s compensation claim) that
occurs prior to the Closing Date regardless of when said claim
or liability is asserted, including any claim or liability for
consequential or punitive damages in connection with the
foregoing;
(f)
any liabilities of Seller to pay severance
benefits to employees of Seller employed at in the Business
whose employment is terminated prior to the Closing Date or in
connection with or following the sale of the Purchased Assets
pursuant to the provisions hereof;
(g)
any liability under any federal or state civil
rights laws resulting from termination of employment of
Seller’s employees;
(h)
any liabilities for medical or other employee
benefits for claims incurred on or prior to the Closing
Date;
(i)
any liability under COBRA and the regulations
thereunder with respect to health/medical coverage of current or
former employees of Seller and their dependents who elect
coverage under COBRA as required by applicable law;
(j)
any liabilities arising out of or in connection
with any of Seller’s retirement plans or employee benefit
plans;
(k)
any bonus or other compensation payments to
Seller’s employees which are owed by reason of the sale of
the Purchased Assets, and any liabilities for salaries, wages,
bonuses, and other compensation which are owed to employees of
Seller for services rendered through the Closing Date;
(l)
any liabilities arising out of or in connection with any violation
by Seller, of any applicable statute or governmental rule,
regulation or directive; and
(m)
without limitation by the specific enumeration of the foregoing,
any liabilities of Seller not expressly assumed by Purchaser
pursuant to the provisions of Section 2.02.
2.04
Risk of Loss .
The risk of loss with respect to the Purchased
Assets shall remain with Seller until the Closing at which time
risk of loss with respect to the Purchased Assets shall transfer
to Purchaser.
2.05
Purchase Price .
The Purchase Price for the Purchased Assets is
set forth on Schedule 2.05 and shall be paid as set forth on
such Schedule.
2.06
Closing .
The Closing hereunder shall take place at the
offices of Seyfarth Shaw LLP, 815 Connecticut Avenue, N.W.,
Suite 500, Washington, D.C. at 10:00 AM local time on the
fifteenth (15th) day after the satisfaction of all other
conditions specified in Article V hereof, or on such other date
as may be mutually agreed upon by the parties in writing.
The Closing or any Partial Closing may be held by mail or
other similar means by agreement of the parties.
2.07
Apportionments and Closing Costs .
Personal property taxes, utility charges, licenses, if
any, rents and any other charges pertaining to the Purchased
Assets, including without limitation income earned and expenses
incurred, shall be prorated and apportioned between the parties
as of the later of February 1, 2005 or the date of Closing (the
“Apportionment Date”), regardless of the date
assessed, paid or payable. In respect to any payments made
by or to either party, whether before or after Closing,
appropriate remittances shall be made promptly to assure that
such items are apportioned as of the Apportionment Date.
Either party shall have the right, for a period of one
year after the date of Closing, to audit (at its own expense)
the books and records of the other party which pertain to
expenses and revenues to be apportioned hereunder, and to make
any claim in connection with apportionment. The Purchaser
shall not be obligated to pay the Seller's income and capital
gain taxes allocable to the sale.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01
Representations and Warranties of Seller and
Strickler .
The Seller and Strickler hereby jointly and
severally make the following representations and warranties to
Buyer, as of the date of this Agreement, which representations
and warranties shall continue in full force and effect from the
date hereof until and through the Closing Date:
(a)
Authority .
Seller is a corporation which is duly
organized, validly existing and in good standing under the laws
of the state of Florida. Seller has all requisite power
and authority and the legal right to own its properties and to
conduct its business as currently conducted, and to execute,
deliver and perform this Agreement. Seller's execution,
delivery, and performance of this Agreement have been duly and
validly authorized by all necessary corporate action. This
Agreement has been duly executed and delivered by Seller and
constitutes Seller's legal, valid and binding obligation
enforceable in accordance with its terms against Seller.
(b)
No Restrictions Against Performance .
Except as noted on Schedule 3.01(b) hereto,
neither the execution, delivery, or performance of this
Agreement by Seller, or the consummation of the transactions
contemplated hereby will, with or without the giving of notice
or the passage of time, or both, violate any provisions of,
conflict with, result in a breach of, constitute a default
under, or result in the creation or imposition of any Lien or
condition under, (i) any or all of Seller's organizational
documents; (ii) any federal, state or local law, statute,
ordinance, regulation or rule, which is or may be applicable to
Seller or the Purchased Assets; (iii) any contract,
indenture, instrument, agreement, mortgage, lease, right or
other obligation or restriction to which Seller is a party or by
which Seller is or may be bound; or (iv) any order,
judgment, writ, injunction, decree, license, franchise, permit
or other authorization of any federal state or local court,
arbitration tribunal or governmental agency by which Seller or
the Purchased Assets or either of them is or may be bound.
The execution and delivery of this Agreement by Seller and
the performance by Seller of the transactions contemplated
herein will not constitute an act of Bankruptcy, preference,
insolvency or fraudulent conveyance under any bankruptcy act or
other law for the protection of debtors or creditors.
(c)
Third Party and Governmental Consents
.
Except as set forth on Schedule 3.01(c) hereto,
no approval, consent, waiver, order or authorization of, or
registration, qualification, declaration, or filing with, or
notice to, any federal, state or local governmental authority or
other third party is required on the part of Seller in
connection with the execution of this Agreement or the
consummation of the transactions contemplated hereby.
(d)
Title .
Except as otherwise identified on Schedule
3.01(d) hereto, Seller has good, valid, marketable, legal and
beneficial title to the Purchased Assets, and all of Seller's
leasehold and option or other executory interests therein are
fully and freely assignable. Except as otherwise noted on
Schedule 1.01 hereto, all of the Purchased Assets are free and
clear of all Liens. There are no outstanding options,
warrants, commitments, agreements or any other rights of any
character, entitling any person or entity other than Buyer to
acquire any interest in all, or any part of, the Purchased
Assets.
(e)
Orders and Decrees .
Except as set forth in Schedule 3.01(e) hereto,
Seller nor the Purchased Assets is subject to any judicial or
administrative order, ordinance or zoning restriction, which
would materially and adversely affect or impose any condition on
Seller, any of the Purchased Assets, or the transaction
contemplated hereby.
(f)
Litigation .
There is no judicial or administrative action,
suit or proceeding, pending or threatened against or relating to
Seller, the Purchased Assets, or the transaction contemplated
hereby, before any federal, state or local court, arbitration
tribunal or governmental authority which could, individually or
in the aggregate, (i) result in the voluntary or involuntary
transfer of any of the Purchased Assets; or (ii) adversely
affect Seller, the Purchased Assets or the transaction
contemplated hereby. Seller knows of no fact or facts
establishing a reasonable basis for any such action, suit,
proceeding or any governmental investigation relating to the
same.
(g) Compliance with Laws .
Seller is in compliance in all material respects with all
applicable laws, regulations and administrative orders of (i)
the United States, (ii) any state, and (iii) any municipality,
county, or subdivision, to which Seller, the Purchased Assets
are or may be subject.
(h) Insurance . The
Purchased Assets are not insured by the Seller.
(i) Taxes . Except for 2003
federal tax returns which are in process, Seller has timely
filed all federal, state, local, foreign and other tax returns
and reports of every nature required to be filed in connection
with the Purchased Assets and the Business, and has paid all
taxes, including without limitation, sales and use taxes, and
other assessments due. Seller has not received any notice from
any governmental authority of any actual or proposed deficiency,
interest, penalty or other amount due in connection with any tax
return or report filed.
(j) Equipment . The
equipment listed on Schedule 1.01 is in good working condition,
excepted as noted on Schedule 1.01, subject to reasonable wear
and tear, in conformity with the manufacturers' specifications
(including the ability to perform the functions for which it was
designed), and in compliance with all Federal Communications
Commission and other regulations. The exceptions set forth
on Schedule 1.01 do not include any equipment currently
necessary for operations.
(k) No Misstatements or Omissions
. None of the information or documents furnished or to be
furnished by Seller to Buyer or to any of Buyer's
representatives, and no representation or warranty made in this
Agreement or in any agreement, document or instrument
contemplated hereby, is or will be false or misleading as to any
material fact, or omits or will omit to state a material fact
required to make any of the statements made therein not
misleading in any material respect.
(l) Broker's Fees . No
agent, broker or other person acting pursuant to the express or
implied authority of Seller is or may be entitled to a
commission or finder's fee in connection with the transactions
contemplated by this Agreement, or is or may be entitled to make
any claim against Buyer for a commission or finder's fee.
Seller agrees to indemnify Buyer against any claim for any
such commission or finder's fee made by any agent, broker or
other person acting pursuant to Seller’s express or
implied authority.
(m) Environmental Matters .
With respect to the real property listed on Schedule 1.01
hereto, including, without limitation, any real property leased
pursuant to a lease listed on Schedule 2.02 (any such real
property referred to hereinafter as the "Real Property"), no
Person has used, generated, manufactured, produced, stored,
released, discharged, or disposed of on, under, or about the
real property or transported to or from the real property any
hazardous material, hazardous substance, pollutant, or
contaminant, as those terms are defined in the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980,
as amended, the Resource Conservation and Recovery Act of 1976,
and the Hazardous Materials Transportation Act, or by the U.S.
Environmental Protection Agency or any state environmental
agency.
(n)
Agreements .
The Assumed Agreements are in full force and
effect, none of them has been modified or amended, and no action
to revoke, cancel or adversely affect in any manner any of the
Assumed Agreements has been initiated or threatened in writing;
except as expressly set forth on the face of it or a properly
executed amendment which has been tendered to Buyer, Seller is
not obligated to pay any additional rent or charges under any of
the Assumed Agreements. Seller has not received notice
from or given notice to any other party to any of the agreements
claiming that there is a default under any of the Assumed
Agreements. There is no event which, with the giving of
notice or the passage of time or both, wou
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