Exhibit 10.9
ASSET PURCHASE AGREEMENT
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THIS ASSET PURCHASE AGREEMENT (the "AGREEMENT") made and entered into this
23rd day of February, 1996, by and between BUSINESS CARDS TOMORROW, INC., (BCT),
a Florida Corporation, hereinafter referred to as the "SELLER", and E. V.
ANTRIM, ROSEMARY R. ANTRIM and WILLIAM A. WILKERSON, jointly & severally,
hereinafter referred to as the "BUYERS".
W I T N E S S E T H :
That in consideration of the mutual covenants, conditions and agreements
herein contained, the Parties do hereby agree as follows:
1. ASSETS TO BE PURCHASED. The SELLER agrees to sell and the BUYERS agree
to buy, upon the terms and conditions hereinafter set forth, the following
described assets (the "ASSETS") of the Business owned and operated by SELLER
known as BCT, located at 801 Moowaa Street, Building A, Honolulu, Hawaii, 96817,
to-wit:
Certain leasehold improvements, existing Lease Agreement, furniture,
fixtures, transferable licenses, equipment, trade name, customer list,
accounts receivable and goodwill of the going Business known as BCT
HAWAII (#3045), located at 801 Moowaa Street, Building A, Honolulu,
Hawaii, 96817. A list of said furniture, fixtures, and equipment is
attached hereto as Exhibit "A", and the allocation of the Purchase
Price between the aforedescribed ASSETS shall be as follows:
A. Furnishings, fixtures
and equipment $145,000.00
B. Goodwill, trade name
and customer list $138,000.00
C. Inventory $ 25,000.00
D. Accounts Receivable $ 50,000.00
E. Leasehold and leasehold
improvements $ 42,000.00
TOTAL $400,000.00
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The purchase price will be adjusted at closing to reflect the actual
value of the inventory and accounts receivable.
2. PURCHASE PRICE: The Purchase Price for the sale, conveyance and
delivery of the ASSETS described in paragraph 1 shall be Four Hundred Thousand
Dollars ($400,000.00), and payment shall be as follows:
A. Upon the CLOSING of this transaction, BUYERS shall execute and
deliver a Promissory Note ("NOTE 1") in favor of SELLER in the principal sum of
Three Hundred, Twenty-Five Thousand Dollars ($325,000.00), bearing interest at
the rate of eight percent (8%) per annum, with principal and interest being
payable in equal monthly installments with a fifteen (15) year amortization and
a ten (10) year balloon commencing one (1) month from the date of CLOSING.(*)
NOTE 1 shall be secured by a Security Agreement as provided in paragraph 4
below.
3. INVENTORY AND ACCOUNTS RECEIVABLE. At CLOSING, BUYERS shall purchase
SELLER's paper stock inventory, supplies, inventory and accounts receivable,
which shall be taken and verified by the Parties on the date prior to CLOSING.
BUYERS shall execute and deliver a Promissory Note ("NOTE 2") to SELLER for the
SELLER's cost of the paper stock inventory, supplies and accounts receivable as
shown on SELLER's books. The agreed value of SELLER's accounts receivable shall
be determined as follows:
A. 100% of accounts billed less than 45 days.
B. 90% of accounts billed 45 days or more but
less than 90 days.
C. 80% of accounts billed 60 days or more but
less than 90 days.
D. 0% of accounts billed 90 days or more.
NOTE 2 will bear interest at the rate of eight percent (8%) per annum, with
principal and interest being payable in equal monthly installments over five (5)
years commencing one (1) month from the date of CLOSING and shall be secured by
a Security Agreement as provided in paragraph 4 below.
4. SECURITY DOCUMENTS. At CLOSING, NOTE 1 and NOTE 2 will be secured by
the following described documents:
A. Security Agreement (the "SECURITY AGREEMENT").
B. Collateral Assignment of Lease Agreement (the "COLLATERAL
ASSIGNMENT").
C. Uniform Commercial Code Financing Statement (the "UCC-1").
The aforedescribed Agreements (the 'SECURITY DOCUMENTS") provide
certain collateral for the payment of NOTE 1 and Note 2 to SELLER as hereinabove
specifically described. The SECURITY DOCUMENTS and all related documents
described or contemplated therein as determined to be appropriate by counsel for
SELLER, shall encumber the ASSETS being transferred herein during such time any
amounts remain outstanding on NOTE 1 or NOTE 2. The SECURITY DOCUMENTS shall
prohibit the transfer of the ASSETS by BUYERS during the term thereof, and shall
not be assumable by any third party. The aforedescribed SECURITY DOCUMENTS shall
contain such other additional terms and provisions as shall be approved by
counsel for SELLER.
5. CONVEYANCE OF ASSETS. Upon the CLOSING of this transaction as
hereinafter described, SELLER shall deliver to BUYERS all such bills of sale,
endorsements, assignments, acknowledgments, certificates and other good and
sufficient instruments of transfer as shall be effective to vest in BUYERS
good title to the ASSETS and rights described in Paragraph 1 above as approved
by counsel for BUYERS. In addition, at CLOSING, BUYERS shall execute and deliver
to SELLER the standard form of Franchise Agreement and related documents (the
"FRANCHISE AGREEMENT") currently in use by SELLER in connection with its
BUSINESS CARDS TOMORROW franchise operations. BUYERS acknowledge having
previously received SELLER's Uniform Franchise Offering Circular and hereby
consent to and approve the FRANCHISE AGREEMENT.
6. ASSUMPTION OF TRADE DEBT. Except as otherwise provided herein, it is
hereby agreed between the Parties that BUYERS are not assuming any trade
obligations or non-trade obligations of SELLER which exist at the time of the
CLOSING of this transaction. All accounts payable as shall accrue before the
effective date hereof shall belong to, and be the responsibility of, SELLER. The
Parties acknowledge that certain adjustments of expense must be made between
them subsequent to CLOSING, for items of income and expense which will have
accrued as of the effective date, but not able to be reduced to a liquidated sum
by the date of CLOSING. The Parties agree to adjust such items of income and
expense between themselves within thirty (30) days subsequent to CLOSING.
7. REPRESENTATIONS BY SELLER. The SELLER makes the following
representations and warranties to the BUYERS, all of which shall survive the
CLOSING:
A. That SELLER is a corporation duly organized and existing in good
standing under the laws of the State of Florida. The Board of
Directors of said corporation have approved the sale described
hereunder and have authorized the officers executing this AGREEMENT
to do so. SELLER agrees to deliver a Corporate Resolution to BUYERS
at closing reflecting approval by the Board of Directors of this
transaction.
B. That SELLER is the owner of, and has good and marketable title to,
the ASSETS described in Paragraph 1 above, free and clear of all
debts and encumbrances, except as otherwise reflected in this
AGREEMENT.
C. That SELLER has entered into no contract materially restricting the
ASSETS described in Paragraph 1 above.
D. That there are no judgments, liens, actions or proceedings pending
against SELLER which adversely affect the ASSETS and that SELLER
has complied with all laws, rules regulations imposed by and
governmental authority or otherwise relating to the ASSETS.
8. REPRESENTATIONS BY BUYERS: The BUYERS make the following
representations and warranties to the SELLER, all of which shall survive the
CLOSING:
A. BUYERS have all requisite power and authority to own all of their
properties and to carry on their business as contemplated by this
AGREEMENT and the BUYERS have unrestricted power and authority to
execute and deliver this AGREEMENT and to perform the transactions
contemplated hereby.
B. This AGREEMENT and all other agreements, documents and instruments
executed by the BUYERS pursuant hereto are and will be the legal,
valid and binding obligations of the BUYERS enforceable in
accordance with their terms.
C. The execution and delivery of this AGREEMENT do not, and the
consummation of the transactions contemplated hereby will not
constitute a violation of, and are not, and will not be, a default
under or conflict with the terms of any contract, lease, indenture,
agreement, order, judgment or decree to which BUYERS are a
party or by which they are bound or to which any of their assets
are subject and do not, and will not, violate or constitute a
default under any statute, rule, regulation, order or ordinance of
any governmental, judicial or arbitral body.
D. There is no suit, action or legal, administrative, arbitration or
other proceeding of any nature pending, or, to the knowledge of the
BUYERS, threatened, against them which might affect the legality or
validity of this AGREEMENT, or the transactions contemplated
hereby, and there is no factual basis known to BUYERS for any such
suit, action or proceeding.
9. UNIFORM COMMERCIAL CODE BULK TRANSFER COMPLIANCE. The Parties
acknowledge that this transaction shall be closed in accordance with any
applicable Uniform Commercial Code (the "U.C.C.") provisions in effect in the
State of Hawaii, and the Parties agree to take all such action as may be
required to protect BUYERS in compliance with the U.C.C.
10. CLOSING. The closing and transfer of the title of the ASSETS being
purchased herein (the "CLOSING") shall take place on or before February 29, 1996
at the offices of SELLER, 3000 N.E. 30th Place, 5th Floor, Fort Lauderdale,
Florida 33306. Each of the Parties will execute and deliver at the CLOSING, or
as soon thereafter as reasonably practicable, all instruments reasonably
required to carry out the terms of this AGREEMENT, and all bills of sale,
endorsements, assignments, promissory notes, SECURITY DOCUMENTS, UCC-1 financing
statements and other good and sufficient instruments to effectively transfer to
the BUYERS full title to the ASSETS and rights as described herein, and to
secure the lien of SELLER therein. The Parties shall provide the customary and
necessary corporate resolutions and approvals, properly executed,
authorizing this transaction. Possession of the ASSETS described in Paragraph 1
above shall be delivered to BUYERS at CLOSING.
11. PRORATIONS. The Parties agree that upon the CLOSING of this
transaction, all rents, security deposits, insurance policies, utilities,
utility deposits, and any and all items of income and expense, of a proratable
nature, shall be prorated, and a schedule of same included in the Closing
Statement.
12. FURTHER ASSURANCES. The parties hereby agree that at any time, and
from time to time after the CLOSING, at the request of the other party, and
without further consideration, each party will execute, acknowledge and deliver
such other instruments of conveyance, transfer or which may be required to
establish liens, and take such other action as the other party reasonably might
require to more effectively convey to, transfer to and vest in the other party,
any or all of the ASSETS, properties, liens, rights and goodwill being conveyed
and delivered hereunder.
13. CONDUCT OF BUSINESS PRIOR TO CLOSING. SELLER hereby agrees that,
subsequent to the execution of this AGREEMENT and prior to CLOSING, except as
otherwise consented to by BUYERS in writing:
A. Ordinary Course. SELLER's Business described in paragraph 1 above
shall be conducted only in ordinary course and in the normal and
regular manner. The SELLER will not violate the terms of any
contracts or other obligations of the Business. The SELLER will not
remove or cause to be removed any inventory or stock-in-trade
except as it may be consumed in the regular course of trade.
B. Changes in Compensation. No extraordinary increase (exceeding 20
percent increase per year) will be made in the compensation or
employee benefits payable or to become payable to any employee or
agent of BCT
HAWAII, except as may be approved by SELLER in writing.
C. Preservation of Organization. SELLER will use its best efforts to
preserve the BCT HAWAII (#3045) organization intact, and make no
material changes therein.
D. Maintenance. SELLER will maintain its property and in
substantially its present order and condition subject to normal
wear and tear or replacement.
14. DEFAULT. If any Party fails to perform any of the covenants of this
AGREEMENT, the other Party shall be entitled to all remedies at law and in
equity, including the appointment of a Receiver and specific performance.
15. LITIGATION. In the event of a dispute arising out of this AGREEMENT,
the prevailing Party shall be entitled to recover its reasonable costs and
attorney's fees including, but not limited to, such fees incurred prior to the
institution of litigation, or in litigation, from the non-prevailing Party.
16. NON-WAIVER. The failure of either Party to require the performance of
any terms of this AGREEMENT, or the waiver by either Party of any breach of this
AGREEMENT, shall not prevent a subsequent enforcement of this term or be deemed
a waiver of any subsequent breach.
17. NOTICES. All notices given under the provision of this Agreement
shall be deemed given when sent by Certified Mail, Return Receipt Requested, to
the following addresses:
For SELLER: Mr. A. George Cann, President
Business Cards Tomorrow, Inc.
3000 NE 30th Place, 5th Floor
Fort Lauderdale, FL 33306
For BUYERS: E. V. Antrim
Rosemary F. Antrim
2171 Executive Drive, Suite 300
Addison, Il 60101
William A. Wilkerson
321 Sunset Drive, #3
Fort Lauderdale, FL 33301
18. BROKER: SELLER and BUYERS each represent that neither of them have
had any discussions or negotiations with any broker concerning the subject
matter of this AGREEMENT. Each Party agrees to indemnify the other Party against
and from any claims for any brokerage commissions and all costs, expenses and
liabilities in connection therewith including, without limitation, reasonable
attorney's fees and expenses, for any breach of the foregoing representation.
19. ASSIGNMENT. This AGREEMENT shall not be assigned by BUYERS to anyone
without the prior written consent of the SELLER. SELLER may assign this
AGREEMENT, or any portion thereof, at its option.
20. BENEFIT. This AGREEMENT shall be binding upon the respective Parties,
their successors, heirs, personal representatives, nominees or assigns. All
words used herein in the singular number shall extend to and include the plural
number, and all words used herein in the plural number shall extend to and
include the singular number, when the context or facts require same. All words
used herein in any gender shall extend to and include all genders and any
pronoun will be taken to refer to the person or persons intended, regardless of
number or gender.
21. CONSTRUCTION. This AGREEMENT shall be construed without regard to any
presumption or other rule of law requiring construction against the Party
causing this AGREEMENT to be drafted.
22. APPLICABLE LAW. Any questions or matters arising under this AGREEMENT
as to validity, construction, performance or otherwise, shall be governed,
interpreted and enforced in accordance with the law of the State of Florida. In
the event of a dispute arising out of this AGREEMENT, venue shall lie in the
Circuit Court of Broward County, Florida, or the U.S. District Court for the
Southern District of Florida.
23. INVALIDITY OF ANY PROVISION. In case any one or more of the
provisions contained in this AGREEMENT shall be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
24. BINDING AGREEMENT. This AGREEMENT constitutes the entire and complete
AGREEMENT between the Parties hereto and supersedes all prior correspondence,
discussions, agreements and understandings between the Parties hereto relating
to the sale and purchase of the ASSETS. Neither this AGREEMENT nor any term or
provision hereof may be changed, waived, discharged or terminated except by an
instrument in writing signed by the Parties, including the same formalities with
which this instrument has been executed.
25. CAPTIONS. Paragraph headings shall not be deemed to be a part of the
provisions of such paragraph or have any effect upon the construction thereof,
but the same are inserted for purposes of reference only.
26. COUNTERPARTS. This AGREEMENT may be executed in counterparts, each of
which shall have the effect of being an original AGREEMENT.
IN WITNESS WHEREOF, the Parties hereto have hereunto set their hands
and seals the day and year first above written.
Signed, sealed and delivered
in the presence of:
Kerry Kabza E.V. Antrim
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E.V. Antrim
Kerry Kabza Rosemary F. Antrim
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Rosemary F. Antrim
Sharon Crowder William A. Wilkerson
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William A. Wilkerson
BUSINESS CARDS TOMORROW, INC.
a Florida Corporation
Sharon Crowder By: A. George Cann, President
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A. George Cann, President
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As to SELLER
ADDENDUM to Asset Purchase Agreement for E. V. ANTRIM, ROSEMARY R. ANTRIM and
WILLIAM A. WILKERSON:
(*)Note 1 represents Buyers' assumption of the indebtedness of Kevin J. Old and
Maria L. Old to BCT with respect to the Business pursuant to their $325,000
promissory note to BCT dated June 8, 1995.
ANNETTE FEDUS E.V. Antrim
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E.V. Antrim
ANNETTE FEDUS Rosemary F. Antrim
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Rosemary F. Antrim
Sharon Crowder William A. Wilkerson
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William A. Wilkerson
BUSINESS CARDS TOMORROW, INC.
a Florida Corporation
BETH CARLSON By: DONNA PAGANO - LEO
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Donna Pagano-Leo, V. President
Treasurer & Chief Financial
- ------------------------------ Officer
As to SELLER