Agreement for the Sale of the Assets of
American Paints, Inc.
THIS AGREEMENT MADE THIS 20th day of November, 1998, by and between American
Paints, Inc., hereinafter referred to as "Seller," and Thermacell Technologies,
Inc., a corporation incorporated under and existing by virtue of the laws of the
State of Florida having its principal place of business in Sarasota, Florida,
hereinafter referred to as "Buyer."
WHEREAS, the Seller owns the assets of American Paints, Inc.,
hereinafter referred to as the "Company," and
WHEREAS, the Seller desires to sell and the Buyer desires to purchase all of the
assets of the Company owned by the Seller on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and
agreements contained herein be it agreed;
First: Representations and Warranties of the Seller-The Seller represents and
warrants to the Buyer as follows:
(a) The Company is a corporation duly organized, existing and in good standing
under the law of the State of Florida.
(b) The Company has no subsidiaries of other affiliated corporations.
(c) All of the issued and outstanding capital stock of the Company has been
validly issued and is fully paid and nonassessable; there are no outstanding
options, warrants, or rights to purchase any of its capital stock or assets; the
Company has not in any manner altered or amended its charter or articles of
incorporation since it filed its original Certificate of Incorporation.
(d) The Seller represents and warrants that he is the sole and absolute owner of
the assets attached hereto as Composite Exhibit "A"; such assets are free and
clear of any liens, encumbrances or restrictions on sale and has complete power,
right and authority to sell the same.
(e) The Seller has furnished to the buyer financial statements consisting
of the balance sheet of the Company as of October 31, 1998 and the statement of
income for the twelve months then ended, and the balance sheet and profit and
loss statement as of October 31, 1998, copies of which financial statements are
attached hereto as part of Composite Exhibit "A." Such financial statements are
correct and complete and present fairly the financial position
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of the Company. The Company has also furnished to Buyer income tax (state and
federal and franchise tax returns for the last two years and Seller represents
that they are true and correct. Since the time period covered as reflected by
Composite Exhibit "A", there has not been any material adverse change in the
than changes in the normal and usual course of its business. All tax returns and
reports of the Company required by any governmental agency or the laws of
Florida and any other jurisdiction in which the Company is qualified have been
duly filed and all taxes assessments upon or measured by any of the properties,
franchises, income or recipients of the company have been audited by taxing
officials as set forth in Exhibit "B" and no deficiencies have been proposed as
a result of such audit which have not been paid.
(f) Exhibit "C" hereto attached contains a listing and description of all leases
under which the Company is presently either lessor or lessee, including, as part
of such description, term, expiration date, rental, and renewal or purchase
privilege. The Company represents that they are in full force and effect and
that no default, or breach, has occurred which would make said agreement
unenforceable. All leases are to be prorated based on the date of closing.
(g) There are no actions, suits or proceedings pending or to the knowledge of
the Seller or the Company, threatened against or affecting the Company or any of
its properties at law or in equity or before or be any federal, state municipal
or other governmental department, commission, board, bureau, agency or
instrumentality which involve the possibility of any judgement, liability or
order which may result in any material adverse change in the business,
operations, properties, assets or liabilities of the Company, and the Company is
not, to the knowledge of the Seller or the Company, in default in respect of any
order, injunction or decree of any court or any government instrumentality.
Notwithstanding the foregoing, there is a lawsuit pending with Finvest which
Seller shall continue to take full responsibility for in terms of litigating
said costs, any judgments and/or awards and all costs and fees associated
therewith.
(h) The Company owns outright and absolutely all properties and assets reflected
on its books at the date hereof as being owned by it, including assets in the
ordinary course of business, and other than is disclosed in Exhibit "D" hereto,
subject to no liens,
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mortgages or encumbrances of any kind except as noted in Exhibits "A" and "D."
(i) Except as set forth in Exhibit "E" attached hereto, the Company is not a
party to any written or oral contract which would affect the assets of the
Company.
(k) All notes and accounts receivables of the Company are valid and enforceable
against a maker or debtor, as the case may be, for the original principal amount
or unpaid balance and for an aggregate amount at least equal to the amount of
such notes and accounts receivable shown in Exhibit "A" and provide for any
losses which may be sustained in realization of the receivables. To the
knowledge of the Seller and of the Company, no maker of any such note and no
debtor owing any such account is insolvent or unable to pay the amount owing to
the Company.
(l) The Company has not since the date of Exhibit "A" attached hereto (i) issued
or agreed to issue any stock, bonds or other securities, including securities
convertible into stock, except the capital stock issued and now owned by the
seller; (ii) declared or made any payment or distribution to shareholders or
purchased or redeemed any shares of its capital stock; (iii) mortgaged, pledged
or subjected to lien, charge or any other encumbrance, any of its assets; (iv)
suffered any damage or loss, whether or not covered by insurance, materially
affecting its property or business; (v) sold or transferred any of its assets
except in the ordinary and usual course of its business as conducted during
calendar year 1998, (vi) paid or agreed to pay to any officer, employee or other
person any extraordinary compensation or bonus, or increased the salary or other
compensation of any officer; or (vii) incurred any material obligations or
liabilities, absolute or contingent, except current liabilities incurred, and
obligations under contracts entered into, in the ordinary and usual course of
business.
(m) There are no provisions in the Certificate of Incorporation or Bylaws of the
Company, or any agreements to which the Company or the Seller is a party, which
prohibit, limit, or otherwise affect the right, power and authority of the
Seller to execute this agreement or to consummate the transactions contemplated
thereby.
(n) As of the execution of this agreement, the Seller and the Company will give
of cause to be given to the Buyer and to its properties owned by the Company and
to the books, records, contracts and the documents of the Company, and they will
furnish or cause to be furnished to the Buyer all information with respect to
the business affairs and property of the Company as the Buyer may from time to
time reasonably request and as maybe related to the terms of the Agreement.
(o) Except as otherwise provided herein, the Company will carry
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on its business in substantially the same manner as heretofore, cause its
properties to be maintained and kept in good condition, repair and working
order, keep in force and effect each and every lease, agreement and insurance
comparable in amount and scope to coverage now maintained by it, and use its
best efforts to maintain and preserve its business organizations intact, which
has been approved by the Buyer in its "as is" condition.
(p) The warranties and representations of each of the parties to this agreement
and the indemnity provisions hereof shall survive the date hereof, and the
consummation of the transactions contemplated herein, notwithstanding any
investigation or examination made for on behalf of the parties hereto or the
acceptance by the Buyer of any certificate or opinion furnished in connection
with this transactions. The Seller shall indemnify and hold harmless the Buyer
against any loss, damage or expense, including, but not limited to, legal and
other fees, for taxes, interest, assessments and penalties thereon of any kind
or nature, for any period prior to the date of this agreement, and any
retroactive insurance premiums incurred or sustained by the Buyer, or any loss,
damage or expense as a result of or attributable to any misrepresentation or
breach of warranty by the Seller and against any such loss, damage or expense
which would not have been incurred or sustained by the Buyer if such
representations and warranties had been true and correct.
Second: Representations and Warranties of the Buyer-The Buyer represents and
warrants to the Seller as Follows:
(a) The Buyer is a corporation duly
organized, existing and in good standing under the laws of the State of Florida
and is duly authorized to own the properties and conduct the business now owned
and conducted by it.
(b) As of the date hereof, the Buyer's authorized capital stock consists of
shares of no par value common stock. All of such issues shares have been validly
issued and are fully paid and nonassessable.
(c) As of the date hereof the Buyer has and shall have the Corporate power to
enter into and perform all of its obligations under this agreement and within
thirty (30) days from the date hereof the board of directors of the Buyer shall
ratify and approve the execution and delivery of this agreement by the Buyer.
(d) The Buyer has sufficient funds to carry out this transaction.
Third: Purchase of Assets and Liabilities. All assets and liabilities set forth
in Composite Exhibit "A" herein are hereby conveyed from Seller to Buyer by the
execution of this agreement. The Buyer shall pay the Seller a total of 572,000
shares of Buyer's
common stock which shall be freely trading as follows:
a) On or before December 1, 1998 200,000 shares
b) On or before May 31, 1999 300,000 shares
c) On or before November 30, 1999 72,000 shares
The shares referenced in paragraph (a) have an assumes value of $262,500; the
shares referenced in paragraph (b) have an assumed value of $525,000; and the
shares referenced in paragraph (c) have an assumed value of $213,500. If any of
the net proceeds received by the seller for the sales of any of the stock
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referenced herein falls below the assumed value assigned then the Buyer shall
pay the Seller that sum of money necessary to make sure the Seller has at least
received the assumed value assigned to each block of stock. The aforementioned
equalization of value shall be calculated on May 31, 1999 for the stock in
paragraphs (a); November 30, 1999 for the stock in paragraph (b) and May 31,
2000 for the stock in paragraph (c). All stock certificates will be issued at
closing with the respective time legends issued thereon and in the name of
Philadelphia Financial Inc.
In the event the Seller does not receive the monies referenced herein
the Seller shall have the right to request the Buyer to pay any deficiency in
monies anticipated to be received with the provision of thirty days notice by
the Seller to the Buyer. If the Buyer fails to pay within the thirty day notice
period then the Seller shall have the right to pursue any and all legal remedies
available under the laws of the state of Florida and the prevailing party in
such an action shall be entitled to recover its reasonable attorneys fees.
Fourth: Seller and its officers, directors and shareholders agree not to be in
competition with the Buyer in the industry the buyer is presently involved in as
of the date of this agreement or work for a competitor of the Buyer for a period
of two years from the date of this agreement in the state of Florida.
Fifth: Conditions for Consummation of this Agreement-
(a) All representations and warranties of the Buyer and Seller contained in this
agreement shall have been true in all material respects on the date thereof.
(b) During the period from the date of the balance sheets attached hereto as
Exhibit "A" to this date, there shall not have been any material adverse change
in or to the business or any of the rights or assets and properties, or any
material adverse change in the conditions, financial or otherwise, of the
Company. (
c) The Buyer shall execute those documents necessary to have
the Seller removed from any personal liability for the trade account it
maintains with Benjamin Moore paint company.
(d) The Seller shall have furnished to the Buyer as of this date, a letter from
the accountants for the Company stating that nothing has come to their attention
which would indicate that there had been any material adverse change in the
financial position or results of operations of the Company in the period of
calendar year 1998.
(e) All legal matters in connection with this agreement and all transactions
contemplated hereunder shall have been approved by counsel for the Buyer at the
time of execution.
(f) At the time of closing, the Buyer shall pay off the Seller's loan
from Nationsbank/Barnett in the approximate amount of twenty
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thousand dollars or take action to remove Seller's personal responsibility off
said loan and Seller shall also assume responsibility for the
Nationsbank/Barnett loan in the amount of approximately thirteen thousand
dollars for the Mitsubishi truck. An indemnification shall be prepared and
executed by Buyer at the time of the closing.
(g) Delivery of all the books and records and of the Company or copies
of the same to the Buyer regarding the assets and liabilities of the Company.
Sixth: Miscellaneous--
(a) The Buyer and Seller represent that no broker has been involved in this
transaction.
(b) The Seller and the Buyer, at any time after the date of this agreement
and from time to time upon request of the other party, will execute and deliver
such further instruments of conveyance, assignment and transfer, and take such
other action as such other party may reasonably request in order to effectuate
the purposes of this agreement.
(c) This agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective representative, successors, heirs and
assigns.
(d) Any notice or communication required hereunder shall be sufficiently
given if delivered or mailed by certified mail, postage prepaid, to the Seller
or to the Buyer at the addresses included herein.
(e) (Intentionally Blank)
(f) This agreement binds and constitutes the entire understanding between
the parties with respect to the sale and purchase provided herein and all prior
agreements, understandings, representations and statements, oral or written, are
merged into this agreement. No provision hereof may be waived, modified,
amended, discharged or terminated, except by instrument in writing signed by the
party against whom the enforcement of such waiver, modification, amendment,
discharge, or termination is sought and then only to the extent set forth in
such instrument.
(g) Section titles or headings in this agreement are inserted for
convenience and reference only and in no way define, describe or limit the scope
of the intent of this agreement or any provision hereof.
(h) Each and every provision of this agreement shall be carried out by the
party so charged in a manner deemed duly diligent, expeditious and in good
faith. Whenever the consent of a party is required under this agreement, the
same may not be unreasonably withheld.
(i) This instrument, executed via original or facsimile signature, as of
the date first written above, is a Florida contract, and any disputes thereunder
shall be resolved by the laws of the State of Florida, in the Circuit Court,
Palm Beach County,
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It is to take effect as a sealed instrument and sets forth the entire contract
between the parties. It is binding upon and inures to the benefit of the parties
hereto and their representatives, heirs, devisees, executors, administrators,
successors, and assigns and may be modified, amended or terminated only by a
written instrument executed by both the Seller and the Buyer.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day and
year first above written.
/S/ THOMAS SULLIVAN
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SELLER
AMERICAN PAINTS, INC.
THOMAS SULLIVAN, PRESIDENT
/S/ JOHN PIDORENKO
----------------------------
BUYER
THERMACELL TECHNOLOGIES, INC.
JOHN PIDORENKO, PRESIDENT
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American Paints, Inc.
1800 N. Powerline Road
Pompano Beach, Fl 33069
October 31, 1998
BALANCE SHEET
ACCT DESCRIPTION
ASSETS
CURRENT ASSETS
106 Accounts Receivable $392,801.19
120 Sales Tax Deposit 6,184.92
131 Inventory - American paints 100,000.00
132 Inventory - Associated Products 30,000.00
134 Inventory - Martin Senour 20,000.00
135 Inventory - Pittsburg Paints 29,377.00
136 Inventory - Equipment Parts 8,000.00
138 Inventory - Equipment Sales 1,000.00
140 Inventory - Wooster 6,500.00
141 Inventory - Painter's Wear 1,300,00
144 Inventory - Richard's 12,200.00
145 Inventory - Benjamin Moore 45,000.00
146 American Paints Raw Material 50,000.00
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TOTAL CURRENT ASSETS $702,663.24
FIXED ASSETS
TOTAL FIXED ASSETS (from list dated 8/14/98) $230,000.00
OTHER ASSETS
183 Security Deposits 240.00
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TOTAL OTHER ASSETS 240.00
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TOTAL ASSETS $932,903.24
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LIABILITIES
CURRENT LIABILITIES
205 Accounts Payable $163,271.00
206 Accounts payable - Martin Senour 54,617.00
207 Accounts Payable - Associated Products 0.00
208 Accounts Payable - Pittsburg Paints 21,692.29
210 Accounts Payable - Richard's 15,158.56
211 Accounts Payable - B. Moore 40,455.44
232 Accounts Payroll Tax - Federal .12
235 Accounts Unemployment Tax 77.15
236 Accrued Sales Tax 6,739.51
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TOTAL CURRENT LIABILITIES $302,011.07
LIABILITIES & EQUITY
LONG TERM LIABILITIES
262 Note Payable - Barnett Bank 13,377.19
265 Note Payable - Barnett Bank 19,500.00
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TOTAL LONG TERM LIABILITIES $32,877.19
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TOTAL LIABILITIES $334,888.26
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