EXHIBIT 10.5
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement"), dated as of the 12th
day of July, 2002 (the "Effective Date"), is by and among IES ELECTRONICS
INDUSTRIES USA, INC., a Delaware corporation, as purchaser ("Purchaser"), SUMMIT
TRAINING INTERNATIONAL, INC., an Arkansas corporation ("Summit"), and CENTER FOR
LAW ENFORCEMENT LEARNING, INC., an Arkansas mutual benefit corporation
("Center"), as sellers (Summit and Center being collectively referred to herein
as "Sellers"), and DAC TECHNOLOGIES GROUP INTERNATIONAL, INC., a Florida
corporation (the "Parent").
W I T N E S S E T H:
WHEREAS, Sellers desire to sell to Purchaser, and Purchaser desires to
purchase from Sellers, certain assets of Sellers more particularly described
herein, and Sellers and Purchaser desire to set forth the terms and conditions
of their agreement;
WHEREAS, the Parent is the owner of all the outstanding interest in the
Sellers, and expects to materially benefit from the transactions described
herein;
NOW, THEREFORE, for and in consideration of the premises, the mutual
promises and covenants contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Sellers and Purchaser hereby agree as follows:
1. PURCHASE AND SALE.
1.1 PURCHASE AND SALE. On the terms and subject to the
conditions of this Agreement, Sellers, at the Closing referred to in Section 7,
agree to grant, sell, transfer, convey and deliver to Purchaser, free and clear
of all liens, claims, encumbrances and interests, and Purchaser agrees to
purchase from Sellers, certain assets of Sellers (the "Assets"), which Assets
shall consist of the following: all of Sellers' right, title and interest in and
to the names "Summit Training International" and "Center for Law Enforcement
Learning" (collectively, the "Names"), and the goodwill arising out of the
businesses operated under the Names, including any trademark rights in the Names
and any logo utilized by Sellers (the "Goodwill"), all banners, advertising
materials and websites owned by the Sellers and those additional assets as are
listed on EXHIBIT "1.1" hereto.
1.2 EXCLUDED ASSETS AND LIABILITIES. Except for the Assets
specifically described herein (including the exhibits hereto), no other assets
of Sellers shall be conveyed pursuant to this Agreement. Purchaser shall not
assume, be subject to, or be in any way be liable or responsible for, and
Sellers shall, jointly and severally, indemnify and hold Purchaser harmless
from, any liabilities or obligations of Sellers of any kind or nature, known or
unknown, relating to the Assets or Sellers.
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2. PURCHASE PRICE. The purchase price for the Assets (the "Purchase
Price"), shall be FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00). Of the
Purchase Price, $5,000.00 shall be paid by Purchaser's check at Closing payable
to the order of Sellers, and the remainder of the Purchase Price shall be
evidenced by a promissory note in the principal amount of $45,000.00, made by
Purchaser and payable to the order of Sellers, and having the terms and
conditions as set forth in the form of promissory note attached hereto as
EXHIBIT "2" (the "Note").
3. REPRESENTATIONS AND WARRANTIES OF SELLERS AND PARENT. Sellers and
the Parent, jointly and severally, represent and warrant to and agree with
Purchaser that:
3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. This Agreement has
been duly executed and delivered by Sellers pursuant to resolutions duly
approved by the Board of Directors of each of the Sellers. This Agreement has
been duly executed and delivered by the Parent pursuant to resolutions duly
approved by the Board of Directors of Parent. No further corporate action is
necessary with respect to Sellers or the Parent to make this Agreement a valid
and binding obligation of Sellers and Parent, enforceable in accordance with its
terms. Neither the execution, delivery nor performance of this Agreement by
Sellers or Parent will:
(a) result in a violation or breach of any term or
provision under the Articles of Incorporation or Bylaws or any resolution of the
Boards of Directors or shareholders of Sellers or Parent;
(b) violate any order, writ, injunction or decree of
any court, administrative agency or governmental body;
(c) require any consent, authorization or approval of
any person, entity or governmental authority other than as set forth in this
Article 3.1; or
(d) result in the creation or imposition of any lien,
charge or encumbrance upon the property of Sellers or Parent.
3.2 ORGANIZATION AND EXISTENCE. Sellers are corporations duly
organized, validly existing and in good standing under the laws of Arkansas, and
each has all requisite corporate power to carry on its business as now conducted
and to enter into and perform this Agreement. The Parent is a corporation duly
organized, validly existing and in good standing under the laws of Florida, and
has all requisite corporate power to carry on its business as now conducted and
to enter into and perform this Agreement.
3.3 FINANCIAL CONDITION. Sellers have paid all their
liabilities as such liabilities have come due or they have made arrangement to
pay all such liabilities and have adequate resources available to pay such
liabilities. Sellers will pay all liabilities outstanding as of the date of the
Closing with respect to the Assets. Sellers further represent that each is not
presently insolvent.
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3.4 TAXES. Within the applicable deadlines and in the manner
prescribed by law, Sellers have filed all federal, state, local and foreign tax
returns with respect to the Assets and have paid all taxes, assessments and
penalties due and payable with respect to the Assets. There are no present
disputes as to taxes of any nature payable by Sellers with respect to the
Assets, nor any tax liens, whether existing or inchoate, with respect to the
Assets.
3.5 COMPLIANCE WITH LAWS. Sellers have fully complied, and are
currently in full compliance in all material respects with, all applicable
federal, state and local laws, regulations and ordinances.
3.6 LITIGATION. There are no claims, actions, suits,
proceedings or investigations pending, or, to the best knowledge of Sellers,
threatened against Sellers, their assets or properties, at law or in equity or
before any court or federal, state, municipal or other governmental department,
commission, board, agency or instrumentality.
3.7 RIGHTS TO PURCHASE THE ASSETS. Other than Purchaser
pursuant to this Agreement, no person, firm or entity has any right to purchase
any of the Assets or any part thereof.
3.8 TITLE TO ASSETS. Sellers have good and marketable title to
the Assets and will convey the Assets to Purchaser, free and clear of all liens,
claims, security interests and encumbrances, at Closing.
3.9 MISCELLANEOUS. All agreements, reports and other documents
furnished by Sellers to Purchaser are true, accurate and complete copies of the
agreements, reports and other documents they purport to be.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser represents
and warrants to and agrees with Sellers that:
4.1 PURCHASER'S AUTHORITY RELATIVE TO THIS AGREEMENT. This
Agreement has been duly executed and delivered by Purchaser, and no further
corporate action is necessary with respect to Purchaser to make this Agreement a
valid and binding obligation of Purchaser, enforceable in accordance with its
terms. The execution, delivery and performance of this Agreement by Purchaser
will not result in a violation or breach of any term or provision under the
Articles of Incorporation or Bylaws or any resolution of the Board of Directors
or shareholders of Purchaser or constitute a default or breach of, or accelerate
the performance required under, or require the consent of any person or entity
under any indenture, mortgage, deed of trust or other contract or agreement to
which Purchaser is a party or by which it or any of its assets are bound, or
violate any order, writ, injunction or decree of any court, administrative
agency or governmental body.
4.2 ORGANIZATION AND EXISTENCE. Purchaser is a corporation
duly organized, validly existing and in good standing under the laws of the
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State of Delaware and has all requisite corporate power to carry on its business
as now conducted and to enter into and perform this Agreement.
5. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Regardless of
any investigation at any time made by or on behalf of any party hereto or of any
information any party may have in respect thereof, all representations and
warranties made hereunder or pursuant hereto shall survive the Closing.
6. NON-COMPETITION AGREEMENT. The parties recognize that Purchaser
would not have entered into the Agreement but for the agreement of Sellers and
the Parent to enter into a non-competition agreement. Sellers and the Parent
shall execute and deliver to Purchaser a Non-Competition Agreement, in a form
substantially similar to the form attached hereto as EXHIBIT "6", whereby
Sellers and the Parent agree for a period of four (4) years from Closing not to
own, manage, participate in (as an employee or otherwise), advise or otherwise
consult with any business that provides instruction or educational services to
law enforcement and/or security agencies, entities or personnel (collectively
"Security Services"), within the United States of America. Sellers and Parent
expressly agree that such Non-Competition Agreement is ancillary to this
Agreement and is designed to enforce Sellers' and Parent's obligations to
Purchaser hereunder and to enable Purchaser to realize the value of the
consideration acquired by Purchaser hereunder.
6.1 PROPRIETARY INFORMATION AND NON-DISCLOSURE AGREEMENT. The
Sellers and the Parent agree that they have each done business in the Security
Services sector and that they have developed proprietary, confidential
information related to Security Services (the "Information"), the disclosure of
which by the Sellers or the Parent would injure the Purchaser's business
interests and the value of the Goodwill acquired by the Purchaser hereunder. The
Seller and Parent hereby agree not to utilize or disclose any Information to any
party other than the Purchaser for four (4) years from the Effective Date in a
manner that is calculated to or will negatively affect the Purchaser's business
interests or the value of the Goodwill conveyed under this Agreement.
7. THE CLOSING. Immediately following the execution of this Agreement
(the date thereof being referred to as the "Closing Date"), Sellers and
Purchaser hereby agree to consummate the closing of the sale and purchase of the
Assets (the "Closing"), at the offices of Boyar & Miller, 4265 San Felipe, Suite
1200, Houston, Texas 77027, or by U.S. Mail or other carrier. At the Closing,
the following shall occur:
7.1 BILL OF SALE. Sellers and Purchaser shall execute a Bill
of Sale (the "Bill of Sale"), in the form attached hereto as EXHIBIT "7.1",
conveying good and marketable title to the Assets to Purchaser free and clear of
all liens, claims, encumbrances and interests.
7.2 PURCHASE PRICE. Purchaser shall pay $5,000.00 of the
Purchase Price in the manner described in Section 2.1 above.
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7.3 NOTE. The Note in the form of EXHIBIT "2" shall be
executed by Purchaser and delivered to Sellers.
7.4 NAMES. At Closing, Sellers agree to execute and promptly
file such documents as are required to change their names so as not to be the
same as, or substantially similar to, the Names.
8. CHANGE OF NAMES. Sellers and the Parent agree that, as of the
Closing Date, they will discontinue any and all uses of the Names.
9. FURTHER ACTS. Sellers covenant and agree that, from time to time on
and after the Closing Date, at the request of the Purchaser, they will execute
and deliver all consummatory bills of sale, assignments and other documents that
may reasonably be required to confirm and assure Purchaser of its title and
interest in the entirety of the Assets.
10. EXPENSES AND COMMISSIONS. Each of the Sellers, the Parent and
Purchaser will pay their own expenses incident to the transaction contemplated
by this Agreement. Purchaser and Sellers represent to each other that there are
no agents or brokers entitled to a commission in connection with this purchase
and sale of the Assets. Sellers and the Parent hereby agree to indemnify and
hold harmless Purchaser against any and all claims of any agent, broker, finder
or similar party claiming through Sellers or the Parent, and Purchaser hereby
agrees to indemnify and hold harmless Sellers and the Parent against any and all
claims of any agent, broker, finder, or other similar party claiming through
Purchaser.
11. INDEMNIFICATION. Sellers and the Parent, jointly and severally,
hereby agree to indemnify Purchaser against and agree to defend and hold
Purchaser harmless from all fees, charges, fines, penalties, losses, expenses,
(including reasonable attorneys' fees and costs of litigation), claims, demands,
liabilities, causes of action and suits of any nature whatsoever, arising out
of: (i) any and all activities related to Sellers and the ownership or operation
of the Assets prior to the Closing Date; (ii) any debts, obligations or
liabilities of the Sellers (including, but not limited to any state sales tax
liability); (iii) any breach or default in a representation, warranty or
covenant made by Sellers herein or in any certificate or writing furnished
pursuant hereto; (iv) any liability or claim arising out of a transaction or
undertaking by Sellers in violation of this Agreement; and (v) any liability or
claim arising out of the sale of the Assets. To the extent that Sellers and the
Parent are obligated to indemnify Purchaser under the terms hereof, Purchaser
shall be entitled to offset such amounts against any unpaid portions of the
Note.
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12. MISCELLANEOUS.
12.1 NOTICES. All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed to have been
given if personally delivered, faxed, or mailed, first class, registered or
certified mail, postage prepaid to the following:
If to Sellers, to: Summit Training International, Inc.
1601 Westpark Drive, Suite 4C
Little Rock, AR 72204
Attn: Robert Goodwin
Telecopy No. 501-661-9108
And:
Center For Law Enforcement Learning, Inc.
1601 Westpark Drive, Suite 4C
Little Rock, AR 72204
Attn: Robert Goodwin
Telecopy No. 501-661-9108
If to the Parent, to: DAC Technologies Group International, Inc.
1601 Westpark Drive, Suite 4C
Little Rock, AR 72204
Attn: Robert Goodwin
Telecopy No. 501-661-9108
If to Purchaser, to: IES Electronics Industries USA, Inc.
8250 E. Park Meadows Drive, Suite 110
Littleton , CO 80124
Telecopy No. 303-662-1211
Attn: Greg Otte, President
With a copy to: Gary W. Miller
Boyar & Miller
4265 San Felipe, Suite 1200
Houston, Texas 77027
Telecopy No. 832- 615-4239
or to such other address as shall be given in writing by any party to the
others. If sent by U. S. mail in accordance with this Section 12.1, such notices
shall be deemed given and received on the earlier to occur of (a) actual receipt
at the above specified address of the mailed addressee, or (b) the third (3rd)
business day after deposit with the U.S. Postal Service in the manner herein
provided. Notices delivered by any means other than those described hereinabove
shall be deemed given and received upon actual receipt of the above specified
address of the addressee.
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12.2 ENTIRE AGREEMENT. This Agreement (including the Exhibits
and Schedules attached hereto) is the entire agreement among the parties hereto
regarding the subject matter dealt with herein and supersedes all prior
agreements and understandings whether written or oral.
12.3. CONTROLLING LAW. The execution, validity, interpretation
and performance of this Agreement shall be determined and governed by the laws
of the State of Delaware, exclusive of any principles under which the law of
another jurisdiction might be applied.
12.4 SCHEDULES AND EXHIBITS. All schedules and exhibits
attached to and referenced in this Agreement are incorporated in this Agreement
and made a part hereof.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties as of
the date first set forth above.
SELLERS:
SUMMIT TRAINING INTERNATIONAL,
INC., an Arkansas corporation
By: /s/ Robert Goodwin
----------------------------------------------
Robert Goodwin, Chief Financial Officer
CENTER FOR LAW ENFORCEMENT
LEARNING, INC., an Arkansas mutual benefit
corporation
By: /s/ Robert Goodwin
----------------------------------------------
Robert Goodwin, Chief Financial Officer
PARENT:
DAC TECHNOLOGIES GROUP
INTERNATIONAL, INC., a Florida corporation
By: /s/ Robert Goodwin
----------------------------------------------
Robert Goodwin, Chief Financial Officer
PURCHASER:
IES ELECTRONICS INDUSTRIES USA, INC.,
a Delaware corporation
By: /s/ Greg Otte
-----------------------------------------------
Greg Otte, President
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EXHIBITS:
EXHIBIT "1.1" List of Assets -- Not attached
EXHIBIT "2" Promissory Note
EXHIBIT "6" Form of Non-Competition Agreement
-- Not attached
EXHIBIT "7.1" Form of Bill of Sale -- Not attached
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EXHIBIT "1.1"
LIST OF ASSETS
EXHIBIT "2"
PROMISSORY NOTE
$45,000.00 HOUSTON, TEXAS JULY 12, 2002
The undersigned, IES ELECTRONICS INDUSTRIES USA, INC., a Delaware
corporation ("Maker"), for value received, promises to pay to the order of
SUMMIT TRAINING INTERNATIONAL, INC., an Arkansas corporation ("Summit"), and
CENTER FOR LAW ENFORCEMENT LEARNING, INC., an Arkansas mutual benefit
corporation (Center) (Summit and Center being collectively, "Payee"), in lawful
money of the United States of America, the aggregate principal sum of FORTY-FIVE
THOUSAND AND NO/100 DOLLARS ($45,000.00). All principal hereunder shall be
payable at 1601 Westpark Drive, Suite 4C, Little Rock, AR 72204, or such other
place that Payee may hereinafter designate in writing. This Note shall not bear
interest. All capitalized terms used but not defined herein shall have the
meanings ascribed to them in that certain Asset Purchase Agreement by and
between Maker, Payee and certain other parties of even date herewith (the
"Agreement").
This Note shall be due and payable in full on the date that is eighteen
(18) months and thirty (30) days after the Effective Date; provided, however, as
a mandatory prepayment hereunder (until this Note is otherwise due or payment is
made in full), Maker shall make quarterly payments on this Note equal to ten
percent (10%) of the sales revenue earned by Maker under the purchased Names
during the calendar quarter immediately preceding the Quarterly Payment Date (as
defined below), with the first such installment payment due on the thirtieth
(30th) day following the first calendar quarter after the Effective Date and
continuing regularly on the thirtieth (30th) day after each of the next five (5)
calendar quarters thereafter (the "Quarterly Payment Dates").
In addition to the mandatory prepayments described above, Maker shall
have the privilege to make additional prepayments under this Note at any time,
and from time to time, in whole or in part, without penalty or premium.
This Note, and all of the indebtedness owed hereunder, shall become
immediately due and payable, at the option of the holder hereof, without
presentment or demand or any notice to Maker or any other person obligated
hereon, upon the occurrence of any of the following (herein, an "Event of
Default"): (i) failure to pay of any of the principal within fifteen (15)
business days after Maker's receipt of written notice from Payee of Maker's
failure to receive such payment when due, (ii) the filing of a petition in
bankruptcy by or relating to Maker, or (iii) the assignment of assets for the
benefit of creditors of Maker.
Maker represents, warrants and covenants that the loan evidenced by
this Note is made solely for business, commercial or investment purposes (and
not for personal, family, or agricultural purposes).
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Payment under this Note is subject to offset pursuant to the provisions
set forth in the Agreement.
This Note has been executed and delivered in, and shall be construed in
accordance with and governed by the laws of, the State of Delaware and the
United States of America, without giving effect to principals of conflicts of
laws.
MAKER:
IES ELECTRONICS INDUSTRIES USA, INC., a Delaware
corporation
By: /s/ Greg Otte
-----------------------------------------------
Greg Otte, President
Date: 7/16/02
----------------------------------------------
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