AGREEMENT FOR PURCHASE AND SALE OF ASSETS
(MPI of Northern Florida)
This AGREEMENT FOR PURCHASE AND SALE OF ASSETS is entered into with
an effective date of the 13th day of December, 1999, by and between MPI OF
NORTHERN FLORIDA, a Colorado general partnership (the "Seller"), and VENTURI
TECHNOLOGIES, INC., a Nevada corporation, having its principal office at 763
North 530 East, Orem, Utah 84097 ("Purchaser" or "VTI").
WHEREAS, Seller owns and operates a carpet and furniture cleaning
business located in both Jacksonville, Florida (the "Business");
WHEREAS, Purchaser desires to purchase from Seller, and Seller
desires to sell to Purchaser all of the Seller's Assets used in, and
connected with, the Business in exchange for cash, a promissory note,
assumption by Purchaser of certain liabilities, and Purchaser's conveyance of
an amount of its common stock upon the terms described in this Agreement and
the Restated Global Agreement of Purchase and Sale, with an effective date of
October 6, 1999 (hereinafter referred to as the "Global Agreement").
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties agree as follows:
1. PURCHASE AND SALE OF BUSINESS. Seller shall assign, transfer,
convey and deliver to the Purchaser all of its right, title and interest in
and to the properties, assets, claims, contracts and businesses of every
kind, character and description, whether tangible or intangible, whether
accrued, contingent or otherwise, and wherever located (each of which is
referred to as an "Asset") relating to or comprising the Business; and
including, without limitation, all equipment and machinery; goodwill and all
unfilled customer orders or service requests; all inventories, accounts
receivable, cash on hand and petty cash, prepayments, notes receivable,
advances, deposits and other receivables; all leaseholds, fixtures and
leasehold improvements; all supplies, vehicles, furniture, office furnishings
and fixtures; all claims, rights and benefits under contracts, purchase
orders or otherwise; all coverage under Seller's existing insurance policies
(if VTI so elects); all trade names and service marks and registrations and
applications therefor, trademarks, trademark applications and registrations,
copyright applications and registrations, patents and patent applications and
registrations; all trade secrets, know-how, licenses, processes, formulae
(excluding "Red Express"), royalties, customer lists and files, inventories,
discoveries, improvements, proprietary or technical information, computer
hardware and software, data, plans, specifications, drawings and the like,
all memberships; all financial, inventory, marketing, personnel, and other
books and records, product literature and advertising; governmental permits,
approvals and authorization (excluding telephone exchange); all business
records and plans, all licenses, assignments, secrecy and royalty agreements
relating to any proprietary rights or trade secrets; and
(i) all of the Assets reflected on the Balance Sheet of the
respective specific Business operation as of the Closing Date; and
(ii) Assets of a nature not normally reflected on a Balance
Sheet in accordance with generally accepted accounting principles which are
used primarily in or are primarily related to the Business; and
(iii) those Assets held by other divisions or affiliates of
the Seller set forth on Exhibit A attached to this Agreement.
The Assets described above and as set forth within Exhibit "A" are referred
to collectively as the "Seller's Assets."
2. PAYMENT FOR SELLER'S ASSETS.
2.1 The total payment for the Seller's Assets shall be in the
monetary equivalent amount of $85,000.00 comprised of the
following:
2.1.1 CASH AND PROMISSORY NOTE. At the Closing,
Purchaser will pay or deliver to Seller the following as partial consideration
for the Seller's Assets:
(a) $17,000.00 cash at closing;
(b) A promissory note duly executed by
Purchaser in the principal amount of $34,000.00 in
the form and pursuant to the terms of Exhibit
B, attached hereto.
(c) A promissory note duly executed by Purchaser
in the principal amount of $13,976.81 in the form
and pursuant to the terms of Exhibit "C", attached
hereto [to cover Accounts Payable].
2.1.2 VENTURI STOCK. As additional consideration for the
Seller's Assets, Purchaser shall issue to Seller and deliver to the Escrow
Agent 8,500 shares of Purchaser's authorized but unissued $0.001 par value
common stock (the "Venturi Shares").
2.1.3 LIABILITIES UNDERTAKING. At the Closing, Purchaser
shall also execute a "Liabilities Undertaking" in the form of the attached
Exhibit "D", pursuant to which Purchaser agrees to pay or discharge the
obligations set forth therein.
2.1.4 EMPLOYMENT OF SELLER'S PRINCIPALS. As partial
consideration for Seller's Assets, Purchaser has entered into separate
employment agreements with Mitchell J. Martin and Lloyd E. Peterman.
3. CLOSING. The consummation of the purchase and sale of the
Seller's Assets as provided for in this Agreement will take place by the
execution of documents in counterpart in both Denver, Colorado and
Jacksonville, Florida, by the appropriate and designated signatories
("Closing").
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4. SELLER'S OBLIGATIONS AT CLOSING; FURTHER ASSURANCES.
4.1 At the Closing, Seller shall deliver to the Escrow Agent:
4.1.1 a Bill of Sale and Assignment signed by Seller in
the form attached as Exhibit "D-1";
4.1.2 any other instruments of assignment and transfer
necessary to vest in Purchaser good and marketable title to Seller's Assets;
4.1.3 all contracts and records relating to Seller's
Assets;
4.1.4 the Global Escrow Agreement signed by both Seller
and Purchaser.
4.1.5 all documents required by this Agreement.
4.2 At any time after the Closing, Purchaser may request and
Seller must sign and/or deliver any documents necessary to transfer and assign
to Purchaser, and confirm Purchaser's title to Seller's Assets, and to assist
Purchaser in the exercise of all rights thereto. After the Closing, Seller
shall have access to the books and records pertaining to its pre-closing
operations.
4.3 Purchaser shall have the right to collect any receivables
that may be transferred to Purchaser under this Agreement as of the Closing
date and to endorse Seller's name on checks received for such receivables.
Seller shall transfer to Purchaser any cash or other property Seller receives
for such receivables.
4.4 The Parties agree that with each disbursement or release
from Escrow that upon instructions from Escrow Agent all payments on the Note
may be made directly to the constituent parties comprising the Seller Entities.
VTI further agrees to forward a photocopy of all checks or wire transfer debits
made to the Escrow Agent.
5. REPRESENTATIONS AND WARRANTIES BY SELLER. To the best of its
knowledge and belief, Seller represents and warrants to Purchaser as follows:
5.1 ORGANIZATION, STANDING AND QUALIFICATION. Seller is a
general partnership duly organized, validly existing and in good standing under
the laws of the State of Colorado. All Fours Distributing, Inc., a Colorado
corporation, is the holder of 51% of the partnership interest of the Seller,
and McNamara Enterprises, Inc., a Florida corporation, is the holder of 49% of
the partnership interest of Seller. Seller has all requisite power and
authority and is entitled to carry on its business as now being conducted and
to own, lease or operate its properties as and in the places where such
business is now conducted.
5.2 EXECUTION AND PERFORMANCE OF AGREEMENT; AUTHORITY. The
performance of this Agreement by Seller will not result in a default or breach
of any other agreement to which Seller is a party. Seller and the signatories
for Seller have the authority to enter into this Agreement.
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5.3 FINANCIAL STATEMENTS. The copies of the following financial
statements given to Purchaser and prepared by Seller (called the "Financial
Statements") are complete and correct, have been prepared from the records of
Seller in accordance with generally accepted accounting principles.
5.3.1 unaudited balance sheets of Seller (the "Balance
Sheet") as of December 25, 1998 (the "Balance Sheet Date") and December 25, 1997
and Sellers' unaudited income or cash flow statement for the periods ended
December 25, 1998 and December 25, 1997; also attached is an unaudited Balance
Sheet for the period ending December 4, 1999, hereinafter referenced as
Exhibit D.
Such statements of earnings do not contain any items of special income or any
other income not earned in the ordinary course of business except as
specified therein, and such interim financial statements include all
adjustments, which consist only of normal recurring accruals, necessary for
such fair presentation.
5.4 ABSENCE OF UNDISCLOSED LIABILITIES. Except as reflected
in Exhibit D or on the Balance Sheet, as of the Balance Sheet Date Seller had
no debts or obligations of any nature whatsoever, including any tax liabilities
incurred in respect of Seller's income, or its period prior to the close of
business on the Balance Sheet Date or any other debts or obligations relating
to any act, omission or other condition which occurred or existed on or before
the Balance Sheet Date.
5.5 TAXES. All taxes and assessments imposed by any taxing
authority, whether federal, state, local, foreign or otherwise which are due
or payable by Seller, and all interest and penalties thereon, have been paid
in full (except Use tax returns). All tax returns required to be filed have
been accurately prepared and filed and all deposits required to be made by
Seller with respect to employees' withholding taxes have been made. Seller and
VTI further agree to each file Form 8594 based upon the allocation stipulated
to by the parties as to the Purchase Price.
5.6 ABSENCE OF CHANGES OR EVENTS. Between the Balance Sheet
Date and the Closing Date, there has not been any material adverse change in
the business, operations, properties, prospects, assets, or condition of the
Company, and no event has occurred or circumstance exists that may result in
such a material adverse change.
5.7 LITIGATION. There is no claim, order, investigation or
other proceeding against Seller, its employees, its properties, or business
or the transactions contemplated by this Agreement, and Seller knows of no
basis for the same.
5.8 COMPLIANCE WITH LAWS AND OTHER INSTRUMENTS. To the best
of Seller's knowledge Seller has complied with all laws applicable to its
business and the ownership and use of Seller's Assets as well as the conduct
of its business will not conflict with the rights of any other person or
entity, and will not cause a default under any agreement to which Seller is a
party. Seller is not aware of any proposed laws, condemnations or other
proceedings which would affect its business or Seller's Assets.
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5.9 TITLE TO PROPERTIES. Seller has good title to Seller's
Assets. None of Seller's Assets are subject to any lien, lease, license, or
adverse claim except (i) as expressly set forth in the schedules attached to
this Agreement, or (ii) insubstantial imperfections of title which have arisen
in the ordinary course of business. To the best of Seller's knowledge, except
as set forth in the schedules attached to this Agreement, Seller's Assets are
in good operating condition and repair, are suitable for the purposes used, and
are adequate for all current operations of Seller.
5.10 ENVIRONMENTAL COMPLIANCE. To the best of Seller's
knowledge: (a) Seller's business is being operated in compliance with all
environmental laws and with all terms of required permits and licenses, (b)
Seller is not aware of any circumstances that may interfere with its compliance
with environmental laws or which may give rise to any liability, or which would
otherwise form the basis of any claim or investigation, and that is based on
Seller's manufacture, storage, disposal, transport, or handling, or the release
into the environment, of any hazardous substance, (c) Seller is unaware of any
claim, investigation, or proceeding pending or threatened against Seller, in
connection with the Seller's Assets or its business relating to environmental
laws, and (d) Seller currently maintains all material government permits,
licenses and agreements required to operate Seller's Assets and business, and
has complied with all requirements relating thereto.
5.11 SCHEDULES. Exhibit E contains a complete list and
description of:
5.11.1 All real property in which Seller has any
ownership or other interest and which is used in connection with the operation
of its business.
5.11.2 All equipment, motor vehicles, and other personal
property (other than inventory and supplies), owned or leased by Seller setting
forth a summary description of all leases, claims, and conditions relating
thereto.
5.11.3 All patents, trademarks, service marks, service
names, trade names, and copyrights together with any registrations, applications
and licenses related thereto, owned by Seller or used in the operation of
Seller's business.
5.11.4 All insurance policies insuring Seller or its
assets, specifying the name of the insurer, the risk insured against, the limits
of coverage, the deductible amount, the premium rate and the date through which
coverage will continue by virtue of premiums already paid.
5.11.5 All contracts or agreements relating to the Assets
to which Seller is a party.
5.11.6 All employment and consulting agreements,
compensation plans, pension plans or retirement plans, group life, health and
accident insurance and other employee benefit plans, including holiday,
vacation, Christmas and other bonus practices, to which Seller is a party.
To the best of Seller's knowledge, all of the agreements, leases and licenses
required to be listed on Exhibit E (other than those which have been fully
performed) are valid and binding. Except as
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disclosed in Exhibit E, no payment required to be made under any such
agreement, lease or license has been prepaid more than 30 days prior to its
due date, and there is not any default, or event which would constitute a
default, and none of such agreements, leases or licenses is unduly burdensome
or adverse to Seller's Assets or business or likely to result in any material
loss or liability. None of Seller's existing or completed contracts is
subject to renegotiation with any government body.
5.12 NO GUARANTIES. No obligation of Seller is guaranteed by
any other person or entity, nor has Seller guaranteed any obligation of any
other person or entity.
5.13 RECEIVABLES. All Seller's receivables have arisen only
from transactions in the ordinary course of business and are customarily
collectible within 90 days after each receivable arose, without offset or
resort to litigation.
5.14 RECORDS. The accounting books of Seller are complete and
correct, and to the best of Seller's knowledge, no transactions which are
required to be recorded therein have been omitted.
5.16 DISCLOSURE. All of Seller's representations made in this
Agreement and its related documents are true and contain no untrue statements
and do not omit important facts. Seller has disclosed to Purchaser in writing
all the adverse facts concerning the Seller's Assets and its business.
5.17 NO CONFLICT. To the best of Seller's knowledge,
performance of this Agreement by Seller will not conflict with any regulations
or agreements to which Seller is a party. No authorization or filing, which has
not already been completed, is necessary for Seller to perform this Agreement.
6. REPRESENTATIONS AND WARRANTIES BY PURCHASER. Purchaser represents
and warrants to Seller as follows:
6.1 ORGANIZATION. Purchaser is a corporation organized and in
good standing under the laws of the State of Nevada and has full authority to
enter into this Agreement and to carry on its business and to own and operate
its properties.
6.2 AUTHORIZATION AND APPROVAL OF AGREEMENT. All actions
required to be taken by Purchaser relating to the signing of this Agreement
shall have been taken at or prior to the Closing.
6.3 EXECUTION AND PERFORMANCE OF AGREEMENT. The performance
of this Agreement by Purchaser will not result in a default of any other
agreement to which Purchaser is a party. Purchaser has the authority to enter
into this Agreement.
6.4 LITIGATION. There is no claim, order, investigation or
other proceeding, against Purchaser relating to the transactions contemplated
by this Agreement and Purchaser does not know or have any reason to be aware
of any basis for the same.
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7. CONDUCT OF BUSINESS PRIOR TO CLOSING.
7.1 Prior to the Closing, Seller shall conduct its business
only in a manner consistent with its prior practice and shall preserve its
assets and properties in good condition and maintain insurance thereon in
accordance with present practices, and Seller will use its best efforts (i) to
preserve the business and organization of Seller intact, (ii) to keep available
the services of Seller's present employees, agents and independent contractors,
(iii) to preserve the goodwill of Seller's suppliers, customers, landlords and
others having business relations with it, and (iv) to cooperate with Purchaser
and assist in obtaining the consent of any party to any lease or contract with
Seller where the consent of such party may be required by reason of this
Agreement.
7.2 If there is a change in any information contained in this
Agreement or its related documents prior to closing, Seller shall give Purchaser
prompt written notice.
7.3 Seller shall consult with and follow the recommendations
of Purchaser with respect to (i) canceling agreements to which Seller is a
party, including purchase orders and commitments for capital expenditures or
improvements, (ii) discontinuing particular items or operations and
(iii) purchasing, pricing or selling policy (including offering services at
discounts); provided, however, that nothing contained in this Section shall
require Seller to take action that is likely to result in a penalty or claim
for damages against Seller, or in losses to Seller, or to interfere with the
conduct of Seller's business consistent with prior practice, or to result in a
breach by Seller of any of its representations contained in this Agreement
(unless the breach is waived by Purchaser).
8. ACCESS TO INFORMATION AND DOCUMENTS. Upon Purchaser's request,
Seller shall give Purchaser access to Seller's personnel and all its properties,
documents and records and shall furnish copies of documents requested by
Purchaser. Purchaser shall not improperly disclose the same prior to the
Closing.
9. EMPLOYMENT MATTERS.
9.1 Purchaser shall offer employment to those current employees
of Seller that are listed on Exhibit F attached hereto, at the compensation
listed therein.
9.2 Within a reasonable period following the Closing Date
Purchaser shall provide training and support to Seller's employees to enable
them to use and sell Purchaser's products and services.
10. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. All obligations
of Purchaser under this Agreement are subject to, at Purchaser's option, each
of the following conditions at or prior to the Closing, and Seller shall use
its best efforts to cause each condition to be fulfilled:
10.1 All representations of Seller in this Agreement or the
related documents shall be correct when made and shall be deemed to have been
made again as of the Closing Date, and shall then be correct except for changes
allowed under the terms of this Agreement.
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10.2 All duties required by this Agreement to be performed by
Seller at or before the Closing shall be performed.
10.3 Since the date of this Agreement there shall be no material
adverse change in the condition of Seller's Assets or its business.
10.4 All documents required to be delivered to Purchaser at or
prior to the Closing shall be delivered.
11. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. All obligations of
Seller at the Closing are subject to, at Seller's option, each of the following
conditions at or prior to the Closing, and Purchaser shall use its best efforts
to cause each condition to be fulfilled:
11.1 All representations of Purchaser contained in this
Agreement or the related documents shall be correct when made and as of the
Closing.
11.2 All duties required by this Agreement to be performed by
Purchaser at or before the Closing shall be performed.
12. INDEMNIFICATION.
12.1.1 any loss suffered by Purchaser because a representation
was not true, a warranty was breached or a duty was not performed by Seller
contained in this Agreement or a related document;
12.1.2 any loss suffered by Purchaser in connection with any of
Seller's liabilities which are not assumed by Purchaser under the Liabilities
Undertaking;
12.1.3 any liabilities or debts of Seller, which exist as of the
Closing Date or which arise after that date but which are based upon any
transaction, state of facts or other condition which occurred on or before the
Closing, except to the extent reflected on the schedules attached to this
Agreement;
12.1.4 any liabilities or debts of Seller, which exist as of the
Closing Date or which arise after that date but which are based upon any
transaction, state of facts or other condition which occurred on or before the
Closing Date, except to the extent (i) reflected on the schedules attached to
this Agreement or incurred in connection with a purchase in the ordinary course
of Seller's business and in conformity with the representations contained in
this Agreement, and (ii) assumed by Purchaser under the terms of the Liabilities
Undertaking; and
12.1.5 any claims, judgments and expenses, including legal fees,
incurred for any of the foregoing or for attempting to avoid or oppose the same
or for enforcing this indemnity.
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12.2 Purchaser hereby agrees to indemnify and hold Seller
harmless from:
12.2.1 any loss suffered by Seller because a
representation was not true, a warranty was breached or a duty was not performed
by Purchaser contained in this Agreement or a related document;
12.2.2 any liabilities or debts of Seller assumed by
Purchaser under this Agreement or the Liabilities Undertaking; and
12.2.3 any claims, judgments and expenses, including legal
fees, incurred for any of the foregoing or for attempting to avoid or oppose
the same or for enforcing this indemnity.
13. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties contained in this Agreement shall survive the
Closing.
14. NOTICES. Any notices described under this Agreement shall be in
writing and shall be deemed given when personally delivered or mailed by first
class registered mail, return receipt requested, addressed to the parties at
the addresses set forth above.
15. ARBITRATION. Any action, dispute, controversy or claim between
or among the Parties, whether sounding in contract, tort, or otherwise
("Dispute") shall, at the request of any Party, be finally resolved by
arbitration as set forth and provided for within Paragraph 10 of the Global
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
signed as of the date first written above.
SELLER:
MPI OF NORTHERN FLORIDA,
a Colorado general partnership
By: ALL FOURS DISTRIBUTING, INC.,
a Colorado corporation
By: /s/ Lloyd E. Peterman
-----------------------------
Lloyd E. Peterman,
By:
-----------------------------
Mitchell J. Martin
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STATE OF COLORADO )
) ss.
COUNTY OF ADAMS )
The foregoing instrument was acknowledged before me this 13th day of
December, 1999, by Lloyd R. Peterman, President of ALL FOURS DISTRIBUTING,
INC., a Colorado corporation, general partner of MPI OF NORTHERN FLORIDA, a
Colorado general partnership.
Witness my hand and official seal.
My commission expires: 3/30/2003 .
-----------------------------------
/s/ Lisa M. Huber
-----------------------------
Notary Public
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MPI OF NORTHERN FLORIDA,
a Colorado general partnership
By: ALL FOURS DISTRIBUTING, INC.
a Colorado corporation
By: /s/ Mitchell J. Martin
---------------------------------
Mitchell J. Martin
STATE OF FLORIDA )
) ss.
COUNTY OF ORANGE )
The foregoing instrument was acknowledged before me this 15th day of
December, 1999, by Mitchell J. Martin, Vice President of ALL FOURS DISTRIBUTING,
INC., a Colorado corporation, general partner of MPI OF NORTHERN FLORIDA, a
Colorado general partnership.
Witness my hand and official seal.
My commission expires: --SEAL-- .
-----------------------------------------
/s/ Kim M. Hutchison
-------------------------------
Notary Public
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By: MCNAMARA ENTERPRISES, INC.,
a Georgia corporation
By: /s/ Lanny Mcnamara
--------------------------------
Lanny McNamara, President
STATE OF GA )
) ss.
COUNTY OF GWINNETT )
The foregoing instrument was acknowledged before me this 15 day of
December, 1999, by Lanny McNamara, President of MCNAMARA ENTERPRISES, INC., a
Georgia corporation, general partner of MPI OF NORTHERN FLORIDA, a Colorado
general partnership.
Witness my hand and official seal.
My commission expires: ---SEAL--- .
--------------------------------------------
/s/ illegible
------------------------------------
Notary Public
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PURCHASER:
VENTURI TECHNOLOGIES, INC.,
a Nevada corporation
By: /s/ John Hopkins
----------------------------------
Its: President
-----------------------------
STATE OF UTAH )
) ss.
COUNTY OF UTAH )
The foregoing instrument was acknowledged before me this 13th day of
December, 1999, by John Hopkins, President of VENTURI TECHNOLOGIES, INC., a
Nevada corporation.
Witness my hand and official seal.
My commission expires: 5-15-2001 .
-------------------------
/s/ Vickie F. Johnson
--------------------------
Notary Public
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