Exhibit 2.1
ASSET PURCHASE AGREEMENT
This
Asset Purchase Agreement ("AGREEMENT") is entered into this 31st
day
of July, 2008 ("EFFECTIVE Date") by and between DANBOM TEMPORARY,
INC., an Iowa
corporation ("BUYER"), and CRAGAR INDUSTRIES, INC., a Delaware
corporation
("SELLER").
The
Seller is engaged in the business of selling and licensing others
to
sell various customized vehicles, vehicle parts, kits, and other
goods and
services (the "PRODUCTS") distributed under various trademarks and
trade dress
(the "TRADEMARKS") through its offices located at 1600 North Desert
Drive, #301,
Tempe, AZ 85281 (the "BUSINESS"). Seller desires to sell, and Buyer
desires to
purchase, substantially all of Seller's assets used in connection
with the
Business for the consideration and on the terms set forth in this
Agreement.
The
parties, intending to be legally bound, agree as follows:
1. PURCHASE AND SALE.
1.1. PURCHASED ASSETS.
Subject to the terms and conditions stated in this
Agreement, Seller shall sell to Buyer and Buyer shall purchase
from
Seller, free and clear of all liens and encumbrances, all of
Seller's
rights, title and interest in and to the assets of Seller relating
to
or arising from the conduct of the Business (the "PURCHASED
ASSETS")
as listed below:
1.1(a). All books,
records, customer lists, customer information and
credit files, supplier lists, correspondence and other files
owned by Seller and used or intended for use by Seller in the
Business, including, but not limited to, physical and digital
files and folders regardless of where or on which computer
they are stored; provided, however, that Seller shall retain
the right to reasonable access to all such books and business
records for tax and business records related to the Business
or Agreement (the "BOOKS AND RECORDS");
1.1(b). All of the
intangible rights and property of Seller,
including all trade secrets; proprietary information;
know-how;
inventions; going concern value; goodwill; all
trade names, corporate or other business names, trademarks,
service marks, trade dress rights, and domain names
(including all applications, registrations and common law
rights in any of the aforementioned and all goodwill
associated with any of the aforementioned); telephone,
telecopy, e-mail addresses; patents, patent applications and
all inventions claimed therein or related thereto; copyright
registrations and unregistered copyrights owned by Seller,
including, without limitation, all rights Seller has in the
rights
listed on SCHEDULE A attached hereto (the "SCHEDULED
INTELLECTUAL Property") (all of the aforementioned
collectively comprising "SELLER'S INTELLECTUAL PROPERTY");
1.1(c). The right to
sue and collect damages for past and future
infringement of Seller's Intellectual Property;
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1.1(d). The content of
the website of Seller (including all
copyrights relating thereto): www.cragar.com (the "WEBSITE")
and the domain name for www.cragar.com (the "DOMAIN NAME");
1.1(e). The telephone
number 1-877-8CRAGAR (1-877-827-2427);
1.1(f). All
catalogues, catalogue layouts, artwork, photography,
etc., necessary to complete a catalogue layout.
1.1(g). The contents
of a storage unit located at 4950 E. McDowell
Rd., Unit 17 Phoenix, AZ 85008, including but not limited to
items listed in SCHEDULE C;
1.1(h).
Certain race wheel
dies stored at Dunkel Bros Machinery
Moving, 14500 Firestone Blvd., La Mirada, CA 90638;
1.1(i). All inventory
owned by Seller including, but not limited to,
those items of inventory described in SCHEDULE D, except
items of inventory sold in the regular course of business
prior to the Closing Date;
1.1(j). All equipment
owned by Seller including, but not limited to,
those items of equipment described in SCHEDULE E;
1.1(k). All
memorabilia and promotional items owned by Seller from
Seller's offices including, but not limited to, those items
listed on SCHEDULE F.
1.2.
INTELLECTUAL PROPERTY AGREEMENTS. As of the Effective Date,
Buyer
shall assume all benefits and obligations under all license
agreements
relating to Seller's Intellectual Property between Seller and
any
third party, including but not limited to those licenses described
in
SCHEDULE G.
1.3.
EXCLUDED ASSETS. Buyer and Seller acknowledge that the
insurance
policies, corporate and financial records (except as provided
in
Subsection 1.1(a)), employee benefit plans, bank accounts,
accounts
receivable, cash, cash equivalent assets, and investments of
Seller
are not included as part of the Assets to be conveyed in this
transaction.
2. EXCLUDED
LIABILITIES. Buyer does not assume and shall have no obligation
with
respect to any of the liabilities, claims, obligations or
agreements
of
Seller except as otherwise expressly provided in this Agreement,
and
Seller shall indemnify Buyer against such non-assumed liabilities,
claims,
obligations or agreements until the end of the applicable statute
of
limitations for such non-assumed liabilities, claims, obligations
or
agreements. By way of illustration, and not in limitation of the
foregoing,
Buyer does not assume:
2.1.
Any liabilities or obligations of, or claims against, Seller
which
arise out of the operation of the Business prior to the
Closing;
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2.2.
Any warranty and/or service obligations or product liability
claims,
suits, losses, damages, expenses, costs or obligations related to
or
arising from Products manufactured, replaced, sold or distributed
in
connection with the Business prior to the date of Closing;
2.3.
Any claims, suits, losses, damages, expenses, costs or
obligations
arising prior to Closing out of or in connection with any
employee
benefits or compensation;
2.4.
Any leases for equipment or office space;
2.5.
Any federal, state or local income, sales, property, or other
taxes
payable by Seller;
2.6.
Any amount owing to Katt Worldwide Logistics, Dunkel Bros.
Machinery
Moving Inc., Now Courier, or Power Stop;
2.7. Any agreement between
Seller and Auto World Marketing, including, but
not limited to, the Sales Incentive Agreement;
2.8.
Notwithstanding subsection 1.1(f) above, Buyer is not acquiring
the
Order Motion Software and Buyer will have no obligation or
liability
with respect to such software or any license agreements
relating
thereto.
3. PURCHASE
PRICE, ADDITIONAL CONSIDERATION AND TERMS
3.1.
PURCHASE PRICE. The purchase price for the Purchased Assets shall
be
$1,900,000.00.
3.1(a). UNAMORTIZED
DEFERRED INCOME. In addition to the purchase
price in Subsection 3.1 above, Seller will pay to Buyer at
Closing the remaining amount of unamortized deferred income
from the Carlisle Tire and Wheel Co. wheel agreement.
Pursuant to this agreement there was an unamortized balance
of $53,706.80 as of May 31, 2008. The amount to be paid at
Closing will be the most recent computed number of the
unamortized balance prior to Closing. If it is determined
after Closing that the balance of the unamortized amount as
of the Closing date was less than the amount paid at Closing,
then Buyer shall reimburse Seller the difference within 15
days of such determination. If it is determined after Closing
that the balance of the unamortized amount as of the Closing
date was more than the amount paid at Closing, then Seller
shall reimburse Buyer the difference within 15 days of such
determination.
3.2.
PAYMENT TERMS. The purchase price shall be payable in cash at the
time
of Closing.
3.3.
INTELLECTUAL PROPERTY AND OTHER INTANGIBLE ASSETS.
3.3(a). ASSIGNMENT OF
SELLER'S INTELLECTUAL PROPERTY: Seller hereby
irrevocably grants, conveys, transfers, assigns and
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relinquishes exclusively to Buyer all of its rights, title
and interest in and to Seller's Intellectual Property and any
reasonably foreseeable or otherwise contemplated expansions
thereof and/or extensions thereto.
3.3(b). Seller shall
not on or after the Effective Date:
3.3(b)(i) Make any claims or threats against Buyer or any third
party alleging infringement or violation of Seller's
Intellectual Property;
3.3(b)(ii) Make any claim of ownership of or right in or to any
of Seller's Intellectual Property;
3.3(b)(iii) Do or cause to be done any act contesting,
challenging or in any way impairing the validity or
enforceability of or Buyer's right, title and/or interest in
or to any part of Seller's Intellectual Property;
3.3(b)(iv) File any application seeking or otherwise attempt to
obtain any rights in any patents, trademarks, service marks,
trade dress, domain names, or copyrights that dominate,
cover, or otherwise relate to the Business, Seller's
Intellectual Property, or any of the assets transferred to
Buyer hereunder;
3.3(b)(v) Do or cause to be done any act to enforce or
purporting
or attempting to enforce any of Seller's Intellectual
Property; or
3.3(b)(vi) Do or cause to be done any act to or purporting to
license, assign, otherwise transfer, covenant not to sue,
grant a non-assert, or give permission to practice any of
Seller's Intellectual Property to any third party.
3.3(c). After the
Closing Date, Buyer shall have the exclusive right
to seek and/or procure any intellectual property and similar
and/or related protection for or related to the Business,
Seller's Intellectual Property, or any of the Purchased
Assets,
and Seller shall reasonably assist Buyer in Buyer's
efforts to procure and/or enforce such rights.
3.4.
INTELLECTUAL PROPERTY WARRANTIES AND REPRESENTATIONS.
3.4(a). Seller hereby represents and warrants to Buyer:
3.4(a)(i) At Closing, Seller will deliver free and clear of all
liens, security interests, claims, restrictions, or
other encumbrances, all of Seller's Intellectual
Property, including, without limitation, the Scheduled
Intellectual Property, provided, however, Seller shall
obtain releases of such liens, security interests,
claims, restrictions, or other encumbrances held by
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Foothill Capital Corp. and Norwest Business Credit,
Inc. (or their respective successors in interest, as
applicable) to Buyer within 15; days after Closing;
3.4(a)(ii) To Seller's knowledge: (a) Seller has not received
any notice of a claim that any of Seller's trademark
registrations listed in the Scheduled Intellectual
Property; and (b) none of Seller's trademark
registrations listed in the Scheduled Intellectual
Property are invalid or have even been found invalid or
unenforceable for any reason in any administrative,
arbitration, judicial or other proceeding;
3.4(a)(iii) To Seller's knowledge, all filings necessary to
maintain the validity, enforceability and effectiveness
of all Seller's trademark registrations listed in the
Scheduled Intellectual Property with the listed
registering authority have been made, and all
statements made in such filings are accurate;
3.4(a)(iv) To Seller's knowledge, none of the trademark
registration applications listed in the Scheduled
Intellectual Property have been cancelled or
terminated, or been finally rejected, and all
statements made in such registration applications are
accurate;
3.4(a)(v) To Seller's knowledge, there are no limitations,
defects or other circumstances or threats, pending that
could reasonably be expected to cause the invalidity,
unenforceability or other loss of any of the trademark
registrations listed in the Scheduled Intellectual
Property;
3.4(a)(vi) Seller is not aware of any third-party claims
assertions, or threats leading Seller to believe any of
the trademark registrations listed in the Scheduled
Intellectual Property are or may be found or held by a
court of competent jurisdiction to be invalid,
unenforceable;
3.4(a)(vii) Subject to the provisions of Section 6.14 of this
Agreement, Seller has the right to use and to freely
transfer to Buyer as set forth herein, without any
obligation or liability whatsoever to make any payments
or provision of other compensation by way of royalties,
fees or otherwise, all of Seller's trademark
registrations and applications listed in the Scheduled
Intellectual Property;
3.4(a)(viii) To the Seller's knowledge, no claims are pending
against Seller by any
person or entity regarding the
use of any intellectual property, similar and/or
related right or other proprietary right, including,
without limitation, Seller's Intellectual Property,
which includes, without limitation, the Scheduled
Intellectual Property;
3.4(a)(ix) To the Seller's knowledge, no claims or proceedings
are pending or threatened, against Seller alleging that
Seller is infringing upon or otherwise violating, or
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causing, contributing to or inducing its customers or
other persons or entities to infringe upon or otherwise
violate, any known right or claimed right of any person
or entity under or with respect to any intellectual
property of any other person or entity, or challenging
the validity or enforceability of any of Seller's
Intellectual Property (including, without limitation,
the Scheduled Intellectual Property);
3.4(a)(x) Seller is not aware of any infringements or
violations
by third parties of Seller's Intellectual Property
(including, without limitation, the Scheduled
Intellectual Property), and Seller has not made any
claims or threats alleging any such infringement or
violation by third parties;
3.4(a)(xi) To its knowledge, Seller is not using any
confidential and/or proprietary information or know-how
or any trade secrets of others, and none of the
Purchased Assets comprise any confidential and/or
proprietary information or know-how or any trade
secrets of others;
3.4(a)(xii) To its knowledge, Seller has not disclosed to any
person not obligated to maintain the confidentiality
thereof, any trade secret, confidential and/or
proprietary information or other information the value
of which is contingent upon confidentiality or secrecy
thereof without securing an appropriate confidentiality
agreement, and there have been no material violations
of any such confidentiality obligations or any such
agreements;
3.4(a)(xiii) Other than those comprising part of Seller's
Intellectual Property, Seller has not filed any
application seeking or obtained any rights in any
patents, trademarks,
service marks, trade dress, domain
names, or copyrights that dominate, cover, or otherwise
relate to the Business, the Products, or any of the
assets transferred to Buyer hereunder;
3.4(a)(xiv) Seller is not aware of any intellectual property
right or similar and/or related right that dominates
any of the registered or unregistered trademarks listed
in the Scheduled Intellectual Property;
3.4(a)(xv) Seller has not licensed, assigned, otherwise
transferred, covenanted not to sue, granted a
non-assert, or given permission to practice any of
Seller's Intellectual Property to any third party,
other than as set forth in SCHEDULE G. Notwithstanding
anything to the contrary in this Agreement, to the
extent any agreement between Seller and any third party
relating to the Purchased Assets is not listed in
Schedule G (an "UNSCHEDULED AGREEMENT"), for a period
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of thirty (30) days from the later of Closing or when
Buyer becomes aware of such Unscheduled Agreement,
Buyer shall have the option, but not the obligation, to
assume any or all benefits and/or obligations under
such Unscheduled Agreement. Unscheduled Agreements
include, but are not limited to, the Sales Incentive
Agreement between Cragar and Auto World Marketing
effective August 1, 2006. By the time of Closing,
Seller shall provide notice of termination of the Sales
Incentive Agreement between Cragar and Auto World
Marketing to Auto World Marketing in the manner
specified in that agreement.
3.4(a)(xvi) Seller disclaims all representations and warranties
of Seller not expressly stated herein, including: any
implied warranties including those of fitness for a
particular purpose or merchantability.
3.4(B).
INDEMNIFICATION: THE SELLER SHALL DEFEND AND INDEMNIFY
AGAINST, AND HOLD BUYER AND ITS Employees, DIRECTORS,
OFFICERS AND AGENTS HARMLESS FROM, ANY LOSS, COST, LIABILITY
OR EXPENSE (INCLUDING COURT COSTS AND REASONABLE FEES OF
ATTORNEYS AND OTHER PROFESSIONALS) INCURRED FROM ANY CLAIM TO
THE EXTENT ARISING OR Alleged TO ARISE OUT OF THE SELLER'S
BREACH OF ANY TERM OR CONDITION OF THIS SUBSECTION 3.4 OF
THIS
AGREEMENT.
3.5.
At the execution of this agreement and as additional
consideration
hereof, Buyer and Seller shall enter into a Notice of Assignment
for
the purpose of evidencing and/or recording the above
assignments
substantially in the form of EXHIBIT I attached hereto. The
parties
shall also enter into a Notice of Assignment and Assumption for
the
purpose of notifying licensees of the change in ownership of
the
Purchased Assets substantially in the form of EXHIBIT K
attached
hereto.
3.6.
ACCOUNTING FOR ROYALTIES. Seller is entitled to retain any
royalties
earned prior to Closing. All royalty customers shall be notified
by
Seller immediately after Closing to make royalty payments to
Buyer.
Buyer shall provide an accounting to Seller for all royalties
received
after Closing that were earned prior to Closing. Seller will be
entitled to all royalties earned prior to Closing; Buyer will
be
entitled to all other royalties. Buyer will remit to Seller its
share
of the royalties within thirty (30) days of receipt. If Seller
receives any unearned royalty after Closing it shall immediately
remit
such royalty to Buyer to be accounted for as provided herein.
3.7.
ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated
among the Purchased Assets as set forth in SCHEDULE H, such
allocation
to be made as provided in Section 1060 of the Internal Revenue Code
of
1986 ("CODE"). Buyer and Seller shall each file Form 8594
(Asset
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Acquisition Statement under Section 1060) and any required
amendment
thereto on a timely basis reporting the allocation of the
Purchase
Price consistent with the allocation in SCHEDULE H. Buyer and
Seller
shall not take any position on their respective income tax
returns
that is inconsistent with the allocation of the Purchase Price
as
agreed to in SCHEDULE H.
3.8.
AGREEMENTS NOT TO COMPETE. At execution of this Agreement,
Seller
shall enter into an Agreement Not to Compete substantially in the
form
of EXHIBIT J attached
hereto.
4. CLOSING DATE
AND PLACE. The Closing shall take place on July 31, 2008 (the
"CLOSING DATE") in Tempe, AZ at the offices of Global
Entertainment
Corporation or at such other time and location as the parties may
agree.
Time
is of the essence for this Agreement.
5. FURTHER
COOPERATION.
5.1.
EXECUTION OF DOCUMENTS. At the reasonable request of the other
party,
each party will execute and deliver such other instruments and do
and
perform such other acts and things as may be necessary or
desirable
for effecting completely the consummation of the transactions
contemplated hereby, including, without limitation, execution,
acknowledgment, and recordation of other such papers, and using
commercially reasonable efforts to obtain the same from the
respective
inventors or other individuals or parties, as necessary or
desirable
for fully perfecting and conveying unto the parties the benefit of
the
transactions contemplated hereby.
5.2.
PRIVILEGED AND PROTECTED INFORMATION. To the extent any
attorney-client privilege or the attorney work-product doctrine
applies to any documents, files, or other information relating to
the
Purchased Assets, Seller will ensure that, if any such
documents,
files, or other information remains under Seller's possession
or
control after Closing, it is not disclosed to any third party
unless
(a)
disclosure is ordered by a court of competent jurisdiction,
after
all appropriate efforts to prevent disclosure have been exhausted,
and
(b) Seller gave Buyer prompt notice upon learning that any third
party
sought or intended to seek a court order requiring the disclosure
of
any such portion of such documents, files, or other information.
In
addition, Seller will continue to reasonably prosecute, maintain,
and
defend the Purchased Assets at its sole expense until the
Closing.
5.3.
PROSECUTION AND LITIGATION ASSISTANCE. Seller will also, at the
reasonable request of Buyer after Closing, assist Buyer in
providing,
and obtaining, from individuals who are employees of Seller at
the
time of Buyer's request, prompt production of pertinent facts
and
documents, otherwise giving of testimony, execution of
petitions,
oaths, powers of attorney, specifications, declarations or
other
papers and other assistance reasonably necessary for filing
patent
applications, trademark applications, trademark renewals,
enforcement
or other actions and proceedings with respect to the claims under
the
Purchased Assets. Buyer shall compensate Seller for any
reasonable,
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documented disbursements and time incurred after Closing in
connection
with providing assistance under this subparagraph 5.3 in
connection
with any enforcement or other infringement action regarding the
Purchased Assets, under a standard billable hour rate of
Seller.
Seller shall furnish Buyer an advance, written estimate of the
fees
and costs for such assistance and Buyer shall have agreed in
writing
to pay such fees and costs.
5.4.
Seller shall pass through to Buyer all manufacturer warranties,
if
any, on the inventory items listed in Schedule D.
6.
REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to
Buyer as follows:
6.1.
LEGAL STATUS. Seller is a corporation duly organized, validly
ex