EXECUTION COPY
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ASSET PURCHASE AGREEMENT
BY AND AMONG
AURA SYSTEMS, INC. AND
EMERALD COMMERCIAL LEASING, INC.
MAY 15, 2008
_______________________________
Schedule 1.1 and General Assignment and Bill of
Sale
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Schedule
1.1
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Inventory
(Assets)
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General
Assignment and Bill of Sale
ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement (this “Agreement”), dated
May 15, 2008, effective as of May 15, 2008, is made by and
between Aura Systems, Inc., a Delaware corporation (the
“Buyer”), having its principal place of business
at 2330 Utah Avenue, El Segundo, California 90245 and Emerald
Commercial Leasing, Inc. a Georgia corporation (the
“Seller”), having its principal place of business
at 4225 Moreland Avenue, Conley, Georgia 30288.
RECITALS
WHEREAS, Seller
is engaged in the business of leasing complete refrigeration
transport systems, which include, among other things, the design
and installation of generators, and refrigeration systems onto
commercial diesel vehicles for use in interstate commerce in the
United States (the “Business”); and
WHEREAS ,
Buyer desires to purchase and Seller desires to sell certain
inventory assets relating to refrigeration transport systems as
described below; and
WHEREAS ,
this Agreement sets forth the terms and conditions upon which the
Buyer will purchase from Seller, and Seller will sell to Buyer, the
aforementioned inventory assets for the consideration provided
herein.
NOW THEREFORE ,
In consideration of the foregoing, the mutual representations,
warranties and covenants set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties to this Agreement hereby agree as
follows:
ARTICLE I
PURCHASE AND SALE OF ASSETS
1.1
Agreement of Sale and Purchase. Seller
hereby sells, bargains, assigns, transfers and conveys to Buyer and
Buyer hereby purchases and acquires the following assets (the
“Assets”) of Seller on the terms and conditions set
forth in this Agreement:
(a)
all
right, title and interest of the Seller in and to the
inventory attached hereto in Schedule 1.1 (the
“Assets”).
Seller
is retaining any and all other assets and liabilities of the
Business.
1.2
Purchase Price
. The
purchase price for the Assets is $384,894.89.
1.3
Time and Place of Closing
. The
closing of described herein (the “Closing”) shall take
place simultaneously with the execution of this Agreement. The date
and time at which the Closing actually occurs is hereinafter
referred to as the “Closing Date.”
1.4
Execution and Delivery of Documents of Title by the
Seller
. At
the Closing, the Seller shall execute and deliver to the Buyer a
general assignment and bill of sale in form and substance
acceptable to Buyer, (the “Bill of Sale”) and such
deeds, conveyances, certificates of title, assignments, assurances
and other instruments and documents as the Buyer may reasonably
request in order to effect the sale, conveyance, and transfer of
the Assets from the Seller to the Buyer. Such instruments and
documents shall be sufficient to convey to the Buyer good and
marketable title in all of the Assets. The Seller will, from time
to time after the Closing Date, take such additional actions and
execute and deliver such further documents as the Buyer may
reasonably request in order to more effectively sell, transfer and
convey the purchased Assets to the Buyer and to place the Buyer in
position to operate and control all of the purchased
Assets.
1.5
Allocation of the Purchase Price. The
purchase price for the assets shall be allocated to the Assets as
set forth in the attached Schedule 1.1, which represent the fair
market value allocable to each of the Assets to be purchased by
Buyer under this Agreement, were arrived at by arm’s length
negotiations, and shall be used by each party in reporting the
transaction contemplated by this Agreement for federal income tax
purposes. As to assets purchased at Buyer’s cost, such shall
be noted in Schedule 1.1.
1.6
Waiver of Compliance with the Bulk Sales Act.
In
connection with the transactions contemplated hereby, only if
applicable, the parties shall waive compliance with the provisions
of Article 6 of the Uniform Commercial Code - Bulk Transfers and
the Bulk Sales Act, to the extent applicable, and any other
applicable United States, state or provincial bulk sales act or
statute (“Bulk Sales Acts”).
1.7
Payment Terms. Subsequent
to the Closing, Buyer shall pay for each asset item in accordance
with the pricing set forth in Schedule 1.1, upon Buyer’s sale
to third parties of its all electric refrigeration transport mobile
power systems, incorporating items comprising the Assets contained
in Schedule 1.1, net fifteen calendar days of Buyer’s receipt
of payment for each such asset item sold. Payment to Seller of the
purchase price in total for the Assets shall be without interest to
Buyer and within a period not to exceed two years from the date
Buyer takes physical possession of the Assets.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF THE SELLER
2.1
The
Seller hereby represents and warrants to the Buyer that the
following statements are true and correct.
(a)
Organization and Qualification
. The
Seller is a corporation duly organized, validly existing and in
good standing under the laws of the state of its incorporation. The
Seller has full corporate power and authority to own, use and lease
its properties and to conduct its business as such properties are
currently owned, used or leased and as such business is currently
conducted. The Seller is qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which
the conduct of its business would require such
qualification.
(b)
Authority; No Violation
. The
Seller has all requisite corporate power and authority to enter
into this Agreement and to carry out the transactions contemplated
hereby or thereby. The execution, delivery and performance by the
Seller of this Agreement have been duly and validly authorized and
approved by all necessary corporate action. This Agreement
constitutes the legal and binding obligation of the Seller,
enforceable in accordance with its terms. Assuming the accuracy of
the representations and warranties of the Buyer hereunder, the
entering into of this Agreement by the Seller does not, and the
consummation by the Seller of the transactions contemplated hereby,
including specifically the transfer of the Assets to the Buyer by
the Seller, will not violate the provisions of (i) any
applicable laws of the United States or any other state or
jurisdiction in which the Seller does business, or (ii) the
Seller’s Articles of Incorporation or Bylaws.
2.2
The
Seller hereby represents and warrants that it has no any
actual knowledge that any of the following statements are not
true or correct in all material respects.
(a)
No Violation .
The consummation, execution, delivery and performance of this
Agreement will not conflict with any provision of, or result in a
default or acceleration of any obligation under, result in any
change in the rights or obligations of the Seller under or require
any consent under, any Lien, contract agreement, license, lease,
instrument, indenture, order, arbitration award, judgment, or
decree to which the Seller is a party or by which it is bound, or
to which any property of the Seller is subject and which now has a
material adverse effect on the Seller.
(b)
Consents
. No
consent, waiver, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative
agency or commission or other federal, state, county, local or
other foreign govern
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