EXHIBIT 99.12
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (the "Agreement") is made and entered into
effective as of the 17th day of July, 2001, by and between Browand, LaMeire &
Associates, Inc., ("Browand & LaMeire") an Oregon corporation, Bill Browand and
Jeanette LaMeire, its sole shareholders, ("Shareholders"), collectively with
Browand & LaMeire ("Sellers") and R-Tec Holding, Inc., an Idaho Corporation
("Buyer").
R E C I T A L S
A. Browand & LaMeire is engaged in the marketing and sale of products and
services in the high-tech industry and desire to sell some, but not all, of its
assets to Buyer.
B. Buyer desires to purchase the assets of Sellers upon the terms and
conditions set forth in this Agreement.
A G R E E M E N T
In consideration of the foregoing recitals and the respective covenants,
agreements, representations and warranties contained herein, the parties hereto
agree as follows:
ARTICLE I: PURCHASE AND SALE OF ASSETS
1.1 Purchase and Sale of Assets. Subject to the terms and conditions of
this Agreement, Sellers agrees to sell, transfer, assign and deliver to Buyer,
and Buyer agrees to purchase from Sellers, all of Sellers' right, title and
interest in and to the assets of Sellers ("Purchased Assets") as set forth in
Exhibit A attached hereto and incorporated herein by reference.
1.2 Purchased Assets Free of Liens. All of the Purchased Assets shall be
transferred by Sellers to Buyer free and clear of all liens, claims,
encumbrances, restrictions or rights of others of every kind and description.
1.3 No Liabilities Assumed. Buyer shall not assume any liabilities or
obligations of Sellers pursuant to this Agreement.
1.4 Purchase Price. The total purchase price for the Purchased Assets is
Three Hundred Eighty Thousand Dollars ($380,000) which Buyer shall pay to
Sellers as follows:
Buyer shall issue to Browand, LaMeire & Associates, Inc., 380,000
shares of restricted common stock of Buyer containing the standard
R-144 restrictions. The parties acknowledge and agree that the fair
market value of Buyer's common stock for purposes of this Agreement is
$1.00 per share.
ARTICLE II: REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers hereby represent and warrant to Buyer, and Buyer, in agreeing to
consummate the transactions contemplated by this Agreement, has relied upon such
representations and warranties with respect to the operations, business and
assets (including the Purchased Assets) of Sellers, the following:
2.1 Organization and Existence. Browand & LaMeire is a corporation duly
organized and validly existing under the laws of the State of Oregon. Browand &
LaMeire has all requisite power and authority to conduct the Business as now
conducted and to own and use the Purchased Assets.
2.2 Title to Purchased Assets. Sellers own all of the assets used by them
in the business. Sellers have good and marketable title to all of the Purchased
Assets being transferred to Buyer as part of this Agreement, free and clear of
all mortgages, security interests, liens, encumbrances, restrictions, claims and
other burdens. Title to the Purchased Assets shall be transferred by Sellers to
Buyer free and clear of all mortgages, security interests, liens, encumbrances,
restrictions, claims and other burdens. The assets to be transferred are in good
operating condition and repair and are adequate and sufficient for the purposes
for which they are intended.
2.3 No Materially Adverse Contracts, etc. Sellers are not parties to and
none of the Purchased Assets are bound or affected by, any agreement or
instrument, or is subject to any order, injunction, judgment, rule, regulation,
or other action of any court or other governmental or public authority or agency
and the sale of assets contemplated by this Agreement will not violate any
federal or state laws including, but not limited to, any state Bulk Sales laws.
2.4 No Conflict. The execution and delivery of this Agreement by Sellers
and the performance of obligations hereunder, (a) is not in violation or breach
of, and will not conflict with or constitute a default under any of the terms of
any current or former employment agreements or contracts binding upon Sellers;
(b) will not result in the imposition of any lien, encumbrance or restriction in
favor of any third party upon any of the Purchased Assets; and (c) will not
conflict with or violate any applicable law, regulation, judgment or decree of
any government, governmental instrumentality or court having jurisdiction over
Sellers or any of the Purchased Assets.
2.5 Full Disclosure. To the best knowledge of Sellers, all material facts
relating to the Business and the Purchased Assets have been disclosed to Buyer
in connection with this Agreement. No representation, warranty or other
statement or information of or from Sellers contained in this Agreement or in
the Exhibits or any other document furnished or to be furnished to Buyer in
connection with the transactions contemplated by this Agreement contains or will
contain any untrue statement of a material
fact or omits or will omit to state a material fact required to be stated herein
or therein necessary to make the statements and facts contained herein or
therein, in light of the circumstances in which they are made, not false or
misleading.
2.6 Investment Representations. Each Shareholder represents and warrants
that he/she has been given full access to the books and records of Buyer and to
such other information concerning Buyer necessary to allow him/her to make an
informed decision as to the merits and risks associated with the acquisition of
shares of Buyer's common stock pursuant to this Agreement, including, without
limitation, form 10-KSB filed by Buyer with the Securities and Exchange
Commission for the period ended December 31, 2000. Each Shareholder represents
and warrants that he/she has sufficient business or financial experience to have
the capacity to protect his/her own interest in connection with the acquisition
of shares of Buyer's common stock, and if such transaction is consummated, each
Shareholder will be able to bear the economic risks of his/her investment in
Buyer's common stock for an indefinite period of time. The shares of Buyer to be
acquired by each Shareholder pursuant to this Agreement, are for his/her own
account, not as a nominee or agent, and not with a view to the sale or
distribution of all or a part thereof, and no Shareholder has a present
intention of selling or otherwise distributing the same. Each Shareholder
understands that the shares of Buyer's common stock are not registered under the
Securities Act of 1933, as amended (the"1933 Act"), or any state securities law
and such shares are being offered pursuant to exemptions from registration
contained in Section 4(2) of the 1933 Act, and applicable exemptions from state
law registration requirements. Each Shareholder further understands that such
shares may not be sold, transferred or otherwise disposed of without
registration under the 1933 Act and any applicable state securities laws or an
exemption therefrom.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Sellers as follows:
3.1 Organization of Buyer. Buyer is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Idaho.
3.2 Authorization of Transaction. Buyer has all requisite corporate power
and authority to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of Buyer, enforceable in accordance with its terms, except as
enforceability hereof may be limited by applicable bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally and by the
exercise of judicial discretion in accordance with equitable principles. The
persons who have executed this Agreement on behalf of Buyer have been duly
authorized to do so.
ARTICLE IV: THE CLOSING
4.1 Closing. The closing (the "Closing") of the sale and purchase of the
Purchased Assets shall take place on July 17, 2001, at Buyer's offices in Boise,
Idaho or at such other place and time as may be mutually agreed to by the
parties.
4.2 Sellers's Obligations. At the Closing, Sellers shall deliver to Buyer
the following:
(a) Bill of Sale for the Purchased Assets or such other instruments of
transfer as requested by Buyer which may be reasonably necessary to
transfer to Buyer all of Sellers' right, title and interest in and to
the Purchased Assets;
(b) Instruments of assignment and transfer of all Purchased Assets of
every kind and description and wherever situated; and
(c) Resolutions of the Sellers as may be required by this Agreement.
Sellers, at any time before or after the Closing, will execute, acknowledge
and deliver any further assignments, conveyances and other assurances, documents
and instruments of transfer, reasonably requested by Buyer, and will take any
other action consistent with the terms of this Agreement that may reasonably be
requested by Buyer, for the purpose of assigning, transferring, granting,
conveying and confirming to Buyer, or reducing to possession, any or all
property to be conveyed and transferred by this Agreement.
4.3 Buyer's Obligations. At the Closing, Buyer shall deliver to Sellers the
following:
(a) Resolutions of the board of directors and of Buyer as required by
this Agreement;
(b) Issue to Browand & LaMeire 380,000 shares of restricted common
stock of Buyer with the standard R-144 restrictions.
ARTICLE V: INDEMNIFICATION
5.1 Indemnification.
(a) Each party hereto shall indemnify and hold harmless (the
"Indemnitor") the other party (the "Indemnitee") in respect of any and all
claims, losses, damages, liabilities and expenses (including, without
limitation, settlement costs and any legal, accounting and other expenses
for investigating or defending any actions o threatened actions) reasonably
incurred by the Indemnitee, in connection with each and all of the
following:
(i) Any breach of any representation or warranty made by
Indemnitor in this Agreement;
(ii) The breach of any covenant, agreement or obligation of
Indemnitor contained in this Agreement or any other instrument
contemplated by this Agreement;
(iii) Any misrepresentation contained in any statement or
certificate furnished by Indemnitor pursuant to this Agreement or in
connection with the transactions contemplated by this Agreement;
(iv) Any claims against, or liabilities or obligations of
Indemnitor not specifically assumed by Indemnitee pursuant to this
Agreement; and
(b) Whenever any claim arises for indemnification hereunder, the
Indemnitee shall promptly notify the Indemnitor of the claim and, when
known, the facts constituting the basis for such claim. The Indemnitee
shall not settle or compromise any claim by a third party for which it
is entitled to indemnification hereunder, without the prior written
consent of the Indemnitor (which shall not be unreasonably withheld)
unless suit shall have been instituted against it and the Indemnitor
shall not have taken control of such suit after notification thereof
as provided in this Section 5.1(b).
ARTICLE VI: CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
6.1 Time Period and Scope of Restriction. Except as otherwise provided in
this Agreement, Sellers, individually and collectively agree that for a period
of two (2) years from the date of this Agreement, they will not directly or
indirectly provide services to or become an employee, owner, partner, agent,
consultant, stockholder, director or officer of any person, firm or entity that
directly or indirectly competes with the business of Buyer in any area where
Buyer currently conducts business or has customers and specifically in the
states of Utah, California, Nevada, Arizona, Idaho, Oregon and Washington.
6.2 Consideration and Acknowledgement The Shareholders of Browand & LaMeire
understand and acknowledge that the strict performance of the agreements set
forth in this Article VI, is a substantial inducement to the execution and
performance of this Agreement by Buyer. The principal Shareholders of Browand &
LaMeire have carefully considered the nature and extent of the restrictions upon
the rights and remedies conferred upon Buyer under this Agreement and agree that
said restrictions, rights and remedies are reasonable, are supported by
sufficient consideration and are not disproportionate to the respective benefits
conferred upon them. The principal Shareholder of Browand & LaMeire further
acknowledge that the enforcement of said restrictions will not prevent either of
them from earning a living.
6.3 Confidential Information. The Shareholders jointly and severally agree
that they will keep confidential any and all Confidential information of the
Buyer. The term "Confidential Information" shall include, without limitation,
(i) customer and vendor lists, (ii) costs, uses, customers, and vendors of the
Sellers' or Buyer's products or services, (iii) price lists, and (iv) all
records, files, memoranda, sketches, bids, contracts, (v) the terms and
conditions of this Agreement, (vi) Buyer's trade secrets, operations, and
processes, and (vii) any and all other documents or information relating to the
business of the Seller and of the Buyer.
6.4 Survival of Covenants. All provisions of Article VI shall survive
termination of this Agreement.
ARTICLE VII: MISCELLANEOUS PROVISIONS
7.1 Severability. Nothing contained herein shall be construed to require
the commission of any act contrary to law. Should there be any conflict between
any provisions hereof and any present or future statute, law, ordinance,
regulation, or other pronouncement having the force of law, the latter shall
prevail, but the provision of this Agreement affected thereby shall be curtailed
and limited only to the extent necessary to bring it within the requirements of
the law, and the remaining provisions of this Agreement shall remain in full
force and effect.
7.2 Governing Law and Jurisdiction. This Agreement is made under and shall
be construed in accordance with the laws of the State of Idaho. Any legal action
brought by any party to enforce any provision of this Agreement shall be brought
and maintained in a court of competent jurisdiction in the State of Idaho.
7.3 Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersedes all prior oral or written agreements, arrangements, and
understandings with respect thereto. No representation, promise, inducement,
statement or intention has been made by any party hereto that is not embodied
herein, and no party shall be bound by or liable for any alleged representation,
promise, inducement, or statement not so set forth herein.
7.4 Modification. This Agreement may be modified, amended, superseded, or
canceled, and any of the terms, covenants, representations, warranties or
conditions hereof may be waived, only by a written instrument executed by the
party or parties to be bound by any such modification, amendment, supersession,
cancellation, or waiver.
7.5 Attorneys' Fees and Costs. In the event of any dispute arising out of
the subject matter of this Agreement, the prevailing party shall recover, in
addition to any other damages assessed, its attorney's fees and court costs
incurred in litigating or otherwise settling or resolving such dispute as
determined by a court of competent jurisdiction. In construing this Agreement,
none of the parties hereto shall have any term or provision construed against
such party solely by reason of such party having drafted the same.
7.6 Waiver. The waiver by any of the parties, express or implied, of any
right under this Agreement or any failure to perform under this Agreement by the
other party, shall not constitute or be deemed as a waiver of any other right
under this Agreement or of any other failure to perform under this Agreement by
the other party, whether of a similar or dissimilar nature.
7.7 Cumulative Remedies. Each and all of the several rights and remedies
provided in this Agreement, or by law or in equity, shall be cumulative, and no
one of them shall be exclusive of any other right or remedy, and the exercise of
any one of such rights or remedies shall not be deemed a waiver of, or an
election to exercise, any other such right or remedy.
7.8 Headings. The section and other headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement.
7.9 Notices. Any notice under this Agreement must be in writing, may be
telecopied, sent by express 24-hour guaranteed courier, or hand-delivered, or
may be served by depositing the same in the United States mail, addressed to the
party to be notified, postage-prepaid and registered or certified with a return
receipt requested. The addresses of the parties for the receipt of notice shall
be as follows:
If to Sellers: Browand, LaMeire & Associates, Inc.
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Shareholders Bill Browand
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Jeanette LaMeire
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If to Buyer: R-Tec Holding, Inc.
1471 E. Commercial Ave.
Meridian, Idaho 83642
Each notice given by registered or certified mail shall be deemed delivered
and effective on the date of delivery as shown on the return receipt, and each
notice delivered in any other manner shall be deemed to be effective as of the
time of actual delivery thereof. Each party may change its address for notice by
giving notice thereof in the manner provided above.
7.10 Survival. Any provision of this Agreement which imposes an obligation
after termination or expiration of this Agreement shall survive the termination
or expiration of this Agreement and be binding on all parties.
7.11 Legal Representation. Each party to this Agreement has had full and
adequate opportunity to review this Agreement and have the Agreement reviewed by
legal counsel of their choosing.
7.12 Effective Date. This Agreement shall become effective as of the date
set forth on page 1 when signed by all parties.
(Signature Page to Follow)
IN WITNESS WHEREOF, the parties hereto have caused this Asset Purchase
Agreement to be executed as of the date first set forth above.
BROWAND, LAMEIRE & ASSOCIATES, INC.
By /s/ Jeanette LaMeire
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Its President
SHAREHOLDER
/s/ Bill Browand
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Bill Browand
SHAREHOLDER
/s/ Jeanette LaMeire
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Jeanette LaMeire
R-TEC HOLDING, INC.
By: /s/ Douglas G. Hastings
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Its President