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
