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ASSET PURCHASE AGREEMENT
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by and between
JOHN BORDYNUIK, INC.
as Seller
and
310 HOLDINGS, INC.
as Purchaser
June 25, 2009
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ASSET PURCHASE
AGREEMENT
This Agreement
(“Agreement”) is entered into as of June 25, 2009, by
and between 310 Holdings, Inc., a Nevada Corporation (the
“Purchaser”), and John Bordynuik, Inc., a Delaware
corporation (the “Seller”).
WHEREAS, Seller is a business
primarily centered around reading high volume legacy data computer
tapes (the “ Business ”);
WHEREAS, Seller wishes to sell to
Purchaser and Purchaser wishes to purchase and assume from Seller,
certain assets with respect to the Business on the terms and
subject to the conditions set forth in this Agreement.
NOW THEREFORE, In consideration of
the mutual covenants, agreements, representations and warranties
contained in this Agreement, the parties agree as
follows:
ARTICLE I
PURCHASE AND SALE OF
ASSETS
1.1 Sale
and Transfer of Assets . On and subject to the terms
and conditions set forth in this Agreement, Seller agrees to sell,
convey, transfer, assign and deliver to Purchaser, and Purchaser
agrees to purchase and acquire from Seller, free and clear of any
encumbrances, all of Seller’s right, title, and interest in
and to all of the assets of Seller as set forth on Exhibit A
attached hereto (“Purchased Assets”) at the Closing in
consideration for the payment by Purchaser of the Purchase Price as
specified below in Section 1.3.
1.2 No
Assumption of Liabilities . The Purchaser shall in
no event assume or be responsible for any liabilities, liens,
security interests, claims, obligations or encumbrances of Seller,
contingent or otherwise.
1.3
Consideration . Upon the terms and subject to the
satisfaction of the conditions contained in this Agreement, in
consideration of the aforesaid sale, assignment, transfer and
delivery of the Purchased Assets, Purchaser will pay or cause to be
paid a purchase price consisting of eight hundred nine thousand
five hundred ninety-three (809,593) shares of the Buyer’s
common stock, par value $0.001 per share (the “Common
Stock”).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
SELLER
Seller represents and warrants to Purchaser that
the statements contained in this Article II are correct and
complete as of the date hereof:
2.1. Due
Incorporation . Seller is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation and has the requisite
corporate power to own its properties and to carry on its business
as now being conducted. Seller is duly qualified as a
foreign corporation to do business and is in good standing in each
jurisdiction where the nature of the business conducted or property
owned by it makes such qualification necessary, other than those
jurisdictions in which the failure to so qualify would not have a
material adverse effect on the business, operations or financial
condition of Seller.
2.2. Authority;
Enforceability . This Agreement and any other
agreements delivered together with this Agreement or in connection
herewith have been duly authorized, executed and delivered by
Seller and are valid and binding agreements enforceable in
accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights
generally and to general principles of equity; and Seller has full
corporate power and authority necessary to enter into this
Agreement, and such other agreements delivered together with this
Agreement or in connection herewith and to perform its obligations
hereunder and under all other agreements entered into by Seller
relating hereto.
2.3.
Approvals; Consents . Seller has, and on the
Closing Date will have, the right, power and authority to enter
into this Agreement and to sell, transfer and deliver the Purchased
Assets and to perform all undertakings and obligations
hereunder. No approval, authorization, consent, order or
other action of, or filing with, any third party, including without
limitation, any public, governmental, administrative or regulatory
authority, agency or body (collectively, “consents”),
is required in connection with the execution, delivery and/or
performance of this Agreement by Seller or the consummation of the
transactions contemplated hereby.
2.4. Liens.
Seller has good and marketable title to the
Purchased Assets and has full power and authority to sell, assign
and transfer to Purchaser all of the Purchased Assets free and
clear of restrictions on or conditions to transfer or assignment,
and free and clear of mortgages, liens, pledges, charges,
encumbrances, equities, claims, covenants, conditions, or
restrictions. All of the Purchased Assets are in good
operating condition and repair, ordinary wear and tear
excepted.
2.5. Taxes.
Seller has filed all federal, state, local, foreign or
other tax returns which are required Taxes to be filed by any of
them or been approved for an extension of same, and such returns
are, to the best knowledge of Seller, true and
correct. There is no material liability for the payment
of any federal, state, local, foreign or other taxes whatsoever
(including any interest or penalties) with respect to Seller except
for which non-compliance would not have a material adverse effect
on the business, operations or financial condition of
Seller.
2.6. Applicable
Laws. Seller has complied with all applicable laws,
rules and regulations of the City, County, State and federal
government as required except for which non-compliance would not
have a material adverse effect on the business, operations or
financial condition of the Seller.
2.7.
Material Information. No material fact regarding
Seller has been omitted which would reasonably affect a prudent
investor’s decision to purchase the assets being sold to
Purchaser herein; and the information furnished by or on behalf of
Seller in connection with this Agreement and the transactions
contemplated hereby do not contain any untrue statement of a
material fact, or omit to state a material fact, necessary in order
to make the statements made, in light of the circumstances under
which they were made, not misleading.
2.8.
No Brokers. No broker, finder or intermediary
has been employed by or on behalf of Purchaser in connection with
the transactions contemplated hereby, and there is no such person
entitled, as a result of Purchaser’s action, to any fee or
commission upon the consummation of the transactions contemplated
hereby.
2.9. Legal
Proceedings . To the best knowledge of the Seller,
there is no (a) legal proceeding pending or threatened, against,
involving or affecting the Seller and/or any of its respective
assets or rights, including the Purchased Assets; (b) judgment,
decree, injunction, rule, or order of any governmental entity
applicable to the Seller that has had or is reasonably likely to
have, either individually or in the aggregate, a Material Adverse
Effect; (c) legal proceeding pending or threatened, against the
Seller that seeks to restrain, enjoin or delay the consummation of
this Agreement or any of the other transactions contemplated by
this Agreement or that seeks damages in connection therewith; or
(d) injunction, of any type.
2.10. Licenses; Compliance
with Regulatory Requirements .
The Seller holds all
licenses, franchises, ordinances, authorizations, permits,
certificates, variances, exemptions, concessions, leases, rights of
way, easements, instruments, orders and approvals, domestic or
foreign (collectively, the “Licenses”) required for or
which are material to the ownership of the Purchased Assets. The
Seller is in compliance with, and has conducted its business so as
to comply with, the terms of its respective Licenses and with all
applicable laws, rules, regulations, ordinances and codes (domestic
or foreign). Without limiting the generality of the
foregoing, the Seller (i) has all Licenses of foreign, state and
local governmental entities required for the operation of the
facilities being operated on the date hereof by the Seller (the
“Permits”), (ii) has duly and currently filed all
reports and other information required to be filed with any
governmental entity in connection with such Permits and (iii) is
not in violation of any of such
Permits.
ARTICLE III
PURCHASER'S
REPRESENTATIONS
Purchaser hereby represents and
warrants to Seller that the statements contained in this Article
III are correct and complete as of the date hereof:
3.1. Due
Incorporation . Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation and has the requisite
corporate power to own its properties and to carry on its business
as now being conducted. Purchaser is duly qualified as a
foreign corporation to do business and is in good standing in each
jurisdiction where the nature of the business conducted or property
owned by it makes such qualification necessary, other than those
jurisdictions in which the failure to so qualify would not have a
material adverse effect on the business, operations or financial
condition of Purchaser or its subsidiaries.
3.2. Authority;
Enforceability . This Agreement and any other
agreements delivered together with this Agreement or in connection
herewith have been duly authorized, executed and delivered by
Purchaser and are valid and binding agreements enforceable in
a
