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EXHIBIT
1.0
ASSET
PURCHASE AGREEMENT
This
ASSET
PURCHASE AGREEMENT (this “Agreement”),
dated as of May 15, 2008 (the “Closing Date”), by
and between Bear Holdings,
Inc. (“Purchaser”), a wholly owned
subsidiary of Westmoore Holdings,
Inc. (the “Parent Company”), and
Bear
Industrial Supply & Manufacturing, Inc. (the
“Company”) on the other. The Purchaser,
the Parent Company, and the Company shall sometimes be
collectively referred to herein as the
“Parties”.
WHEREAS , Purchaser desires to acquire the assets of the
Company (the “Assets”) set forth in Exhibit A
hereto , pursuant to the terms of this
Agreement;
WHEREAS , the Company desires to sell the Assets to the
Company, pursuant to the terms of this Agreement.
NOW, THEREFORE , in consideration of the premises and the
representations, warranties, covenants and agreements herein
contained, the parties hereby agree as follows:
Sale of Assets . Upon execution of this Agreement
(the “Closing Date”), the Company shall acquire the
Assets set forth in Exhibit A hereto and assume certain liabilities
of the Company, set forth in Exhibit B hereto. The
purchase price of the assets shall be $2.25 million calculated as
follows (“Purchase Price”):
(a) $1
million dollars in cash, payable as cancellation of the loan
previously provided by the Purchaser to the Company;
and
(b) The
issuance of shares of common stock of the Parent Company equal
in value to $1.25 million, calculated at the closing bid price
of the Parent Company as of the Closing Date.
Valuation . It is acknowledged that certain
members of the Parent Company’s board of directors have a
conflict of interest in connection with the proposed acquisition in
that they are also shareholders (directly or through certain
controlled entities) of the Company. In this regard, the
Parties hereto have taken the following actions: (i) the Parent
Company has obtained the approval of all independent members of its
Board of Directors to the acquisition of the Assets by the
Purchaser; (ii) the Parent Company had an independent valuation
conducted of the Company by Avalon Advisers, Inc and (iii) the
interested members of the Board of Directors have disqualified
themselves from all consideration of the proposed acquisition of
the Assets.
Assurances . Company shall not, by amendment of
its organizational documents or any agreement or through any
reorganization, transfer of assets, consolidation, merger,
dissolution, issue or sale of securities or any other voluntary
action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by Company, but
shall at all times in good faith assist in the carrying out of all
the provisions of this Agreement and in taking of all such actions
as may be necessary or appropriate in order to protect the
conversion rights of Purchaser against impairment or
dilution.
Representations and Warranties of Company
. Company hereby represents and warrants to Purchaser as
follows:
Due Organization and Qualification . Company is a
corporation duly organized, validly existing and in good standing
under the laws of its state of its state of
incorporation. Company has all requisite power and
authority to own, lease and operate its assets and properties and
to carry on its business as presently conducted and as presently
contemplated. Company is duly qualified to transact
business and is in good standing in each jurisdiction in which the
nature of its business or the locations of its property requires
such qualification, except where the failure to do so would not
have a material adverse effect on Company’s business,
operations, assets or condition (financial or
otherwise).
Power and Authority . Company has the requisite
power and authority to execute and deliver this Agreement and all
other agreements contemplated by this Agreement and to perform its
obligations hereunder and thereunder. The execution,
delivery and performance of this Agreement and all other agreements
and documents contemplated by this Agreement have been duly
authorized by all necessary action on the part of
Company. This Agreement has been duly executed and
delivered by Company and is the valid and binding obligation of
Company, enforceable against Company in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, moratorium, insolvency, reorganization or other similar
laws now or hereafter in effect generally affecting the enforcement
of creditors’ rights, specific performance, injunctive or
other equitable remedies.
Compliance with Laws . Company is in compliance
in all material respects with all Federal, state, local and foreign
laws, statutes, ordinances, regulations, orders, judgments,
injunctions, awards or decrees (collectively, “Laws”),
applicable to it or any of its properties or operations. Company
has not received any notice of violation or alleged violation of
any Law by it. Company has all licenses, permits, orders
and approvals of Federal, state, local and foreign governmental or
regulatory bodies necessary for the conduct of its business and
operations as presently conducted and presently contemplated to be
conducted.
No Breach; Consents . The execution, delivery and
performance of this Agreement by Company and the consummation by
Company of the transactions contemplated hereby will not:
(i) result in any lien, pledge, mortgage, security interest,
claim, lease, charge, option, easement, servitude or other
encumbrance whatsoever (collectively, “Liens”) upon any
of the property or assets of Company (other than in favor of
Purchaser), or (ii) violate, conflict with or otherwise result
in the breach of any of the terms and conditions of, result in a
material modification of, accelerate or trigger the rights of any
person under, or constitute (or with notice or lapse of time or
both would constitute) a default under: (a) any material
instrument, contract or other agreement to which Company is a party
or by or to which it or any of its properties is bound or subject;
(b) Company’s organizational documents or bylaws (and
all amendments thereto up through the date hereof); or (c) any
law applicable to Company or any of its properties or
operations. No consent, approval or authorization of, or
declaration or filing with, any governmental authority, member of
Company or other person or entity is required on the part of
Company in connection with the execution, delivery or performance
of this Agreement or the consummation by it of the transactions
contemplated hereby.
Litigation . There are no material suits or
actions, administrative, arbitration or other proceedings or
governmental investigations pending or, to Company’s
knowledge, threatened against or affecting Company or any of its
properties or assets. There are no judgments, orders,
injunctions, decrees or awards against Company that are not
satisfied or remain outstanding.
Title to Property and Assets . Company has good
and marketable title to all of the Assets sold hereunder, free and
clear of all liens, except liens for current taxes and assessments
not yet due. With respect to the material property and
assets it leases, Company is in material compliance with such
leases and, to the best of its knowledge, holds a valid leasehold
interest free of all Liens, except for such Liens, which would not
materially impair the operations of
Company. Company’s properties and assets are in
good condition and repair, in all material respects, and are fit
for the purposes for which they are currently used, ordinary wear
and tear excepted.
Not a Regulated Entity . Company is not:
(i) an “investment company” or a “person
directly or indirectly controlled by or acting on behalf of an
investment company” within the meaning of the Investment
Company Act of 1940; (ii) a “holding company,” or
a “subsidiary company” of a “holding
company,” or an “affiliate” of a “holding
company” or of a “subsidiary company” of a
“holding company,” within the meaning of the Public
Utility Holding Company Act of 1935; or (iii) subject to
regulation under the Federal Power Act, the Interstate Commerce
Act, any public utilities code or any other Law regarding its
authority to incur indebtedness.
No Misrepresentations . The representations and
warranties of Company contained herein do not contain any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements contained herein or therein, in
light of the circumstances under which they were made, not
misleading.
Financial Statements . At or prior to the
Closing, the Company shall provide to the Purchaser copies of the
financial statements for the previous two operating years (the
“Financial Statements”). The Financial
Statements shall be true and correct and shall be prepared in
accordance with GAAP consistently applied and consistent with prior
periods. The balance sheet comprising a part of the
Financial Statements shall fairly present, in all material
respects, the financial position of the Company as of its date, and
the statements of operations shall fairly present, in all material
respects, the results of operations of the Company for the period
then ended.
No Material Adverse Change . Since the latest
date of the Financial Statements, there has not been any material
adverse change in the Company, operations, properties, prospects,
assets, or condition of the Company, and no event has occurred or
circumstance exists that may result in such a material adverse
change.
Books and Records . The books of account, minute
books, stock record books, and other records of the Company, all of
which have been made available to the Purchaser, are complete and
correct and have been maintained in accordance with sound Company
practices. At the Closing, all of those books and
records will be in the possession of the Company.
Title to Properties; Encumbrances . The Company
owns all the Assets free and clear of all encumbrances except for
liens for current taxes not yet due and payable.
Undisclosed Liabilities . Except as, and to the
extent reflected in the Financial Statements the Company does not
have, nor shall it have on the date of Closing, any liabilities or
obligations of any kind or nature, whether known or unknown or
secured or unsecured (whether absolute, accrued, contingent or
otherwise, and whether due or to become due) that would be required
to be reflected on a balance sheet, or the notes thereto, prepared
in accordance with GAAP.
Legal Compliance and Proceedings . The Company
has not received any notice from a governmental agency alleging
that it is not in compliance with all material legal requirements
associated with the operation of the Company and there is no
pending proceeding: (a) that has been commenced by or against the
Company or that otherwise relates to or may affect the Company of,
or any of the property or assets owned or used by, the Company; or
(b) that challenges, or that may have the effect of preventing,
delaying, making illegal, or otherwise interfering with,
any
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