Exhibit 10.1
ASSET PURCHASE AGREEMENT
THIS AGREEMENT effective as of the 14th day of November 2003, by and
between Roehampton Aid Corp., a Florida corporation (the "RAC") and Total First
Aid, Inc., a Florida corporation ("Seller").
W I T N E S S E T H:
WHEREAS, Seller desires to sell and RAC desires to purchase certain
assets of the of Seller used in the conduct of its business, subject to
assumption by RAC of the liabilities of Seller associated with such assets and
the conduct of operations of Seller relating to the business as hereinafter
described.
NOW, THEREFORE, in consideration of the mutual covenants, agreements,
representations and warranties contained in this Agreement, the parties hereto
agree as follows:
SECTION 1. SALE AND PURCHASE OF ASSETS.
1.1 Transfer of Assets. Upon the terms and subject to the conditions of
this Agreement, RAC, at the Closing (as hereinafter defined), RAC will acquire
from Seller the following assets (collectively, the "Assets"): all of the assets
comprising Seller's Roehampton Supply product line, and all of the assets
comprising Seller's Total First Aid product line all as set forth on Schedule
1.1 attached hereto (collectively the Seller's Roehampton Supply product line
and the Total First Aid product line are referred to as the "Business").
1.2 Components. Without limiting the generality of the foregoing, the
Assets will include the following components of the Business:
(a) all customer lists;
(b) all accounts receivable;
(c) all inventory;
(d) all trade names and trademarks;
(e) all customer records and all other documents, records
and files, regardless of the form or medium in which
maintained, which pertain to the Assets and the
Business;
(f) all permits;
(g) all goodwill;
(h) all contracts;
(i) all purchase orders, including purchase orders
transmitted but not received; and
(j) all rights, interests and contracts relating to
employees of the Business.
1.3 Excluded Assets. No assets will be transferred to RAC except as
provided in Section 1.0 above. Specifically, but without limitation, RAC will
acquire or have assigned to third party(ies) all rights, title and interest in
and to the real property lease covering the premises at 5607 Hiatus Road, Suite
500, Tamarac, Florida, including all physical assets therein that are not part
of the Business and not owned by Van Dyne Crotty.
SECTION 2. ASSUMPTION OF LIABILITIES.
From and after the Closing, RAC shall assume and accept responsibility
for the full, complete and prompt payment of all liabilities of Seller relating
to the Business post closing of this transaction as set forth in Schedule 1,
including, without limitation, all obligations for employees of the Business
commencing with the date hereof and subject to allocation by the parties for
accrued liabilities relating to such employees, as well as all obligations
associated with purchase orders transmitted prior to, or subsequent to, the date
hereof. RAC will also assume and accept responsibility for the full balance of
the lease dated July 25, 2002, with Westpoint Center Ltd. covering the premises
located at 5607 Hiatus Road, Suite 500, Tamarac, Florida ("Lease"), and the
employees of the Business. RAC agrees to indemnify and hold Seller harmless from
all liabilities and obligations transferred by Seller and assumed by RAC
pursuant to this Agreement.
SECTION 3. PURCHASE PRICE.
3.1 The Purchase Price. The purchase price to be paid by RAC for all of
the Assets and assumption of the Lease will be $100.00 and other good and
valuable consideration, and Seller will have a 30% of pre-tax profits interest
("Profit Interest") of the Business for 24 months from the date of Closing of
this transaction, providing Seller lends to the Buyer $60,000 on a three year 6%
Note ("Note") (interest payable annually). The profits interest will commence
when the loan is received by RAC (the "Purchase Price") will be payable at
Closing. The Profit Interest will become effective providing the Note is funded
before January 1, 2004.
3.2 Allocation of Purchase Price. The parties have agreed to allocate
the total Purchase Price as set forth in Schedule 3.2. The parties agree that
any tax returns or other tax information that they may be filed in the
government agency shall be prepared and filed consist with such allocation. RAC
and Seller will upon written request to the other, provide the requesting party
with those portions of the appropriate internal revenue service forms which may
be required by the requesting party in connection with an examination of the
requesting parties tax returns.
3.3 Prorations. Within thirty (30) days after the Closing, the RAC and
Seller shall determine any final Closing prorations and any other settlements
necessary to properly compensate each party for payments made on each others
behalf.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller makes the representations and warranties to RAC set forth below.
4.1 Due Incorporation. Seller is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
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4.2 Corporate Power of Seller. Seller has the full legal right and
power and all authority and approval required to enter into, execute and deliver
this Agreement and to perform fully its obligations hereunder.
4.3 Due Authority. Seller has all power and authority necessary to
enable it to carry out the transactions contemplated by this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated by it have been authorized by all necessary corporate
action on the part of Seller. This Agreement is a valid and binding agreement of
Seller, enforceable against Seller in accordance with its terms. Neither the
execution and delivery of this Agreement by Seller nor the consummation of the
transactions contemplated by this Agreement will violate, result in a breach of,
or constitute a default under any agreement or instrument to which Seller is a
party or by which Seller is bound, or any order, rule or regulation of any court
or governmental agency having jurisdiction over Seller.
4.4 No Consents. No governmental filings, authorizations, approvals or
consents are required to permit Seller to fulfill all of its obligations under
this Agreement.
4.5 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
(i) violate any provision of the Articles of Incorporation or By-Laws of Seller;
(ii) violate, conflict with or result in the breach of any of the terms of,
result in a material modification of, otherwise give any other contracting party
the right to terminate, or constitute (or with notice or lapse of time or both)
a default under any contract or other agreement to which Seller is a party;
(iii) violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon Seller,
or upon the properties or business of Seller; or (iv) violate any statute, law
or regulation of any jurisdiction applicable to Seller.
4.6 Compliance with Laws. Seller has complied in all material respects
with all federal, state, county and local laws, ordinances, regulations,
inspections, orders, judgments, injunctions, awards or decrees applicable to the
Assets.
4.7 Actions and Proceedings. There is no outstanding order, judgment,
injunction, award or decree of any court, governmental or regulatory body or
arbitration tribunal against or involving the Seller in respect of, or in
connection with, the Assets; (ii) there is no action, suit, claim or legal,
administrative or arbitration proceeding or, to the best knowledge of Seller
after due inquiry, any investigation (whether or not the defense thereof or
liabilities in respect thereof are covered by insurance) pending, which would
effect the Assets.
4.8 No Liens. Seller owns the Assets free and clear of all liens,
charges, encumbrances and security interests, and at the Closing, RAC will
acquire good and marketable title to the Assets.
4.9 Brokers' Fees. Seller nor its affiliates have no liability or
obligation to pay any fees or commissions to any broker, finder or agent with
respect to the transactions contemplated by this Agreement for which the RAC
could become liable or obligated.
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF RAC.
RAC represents and warrants to Seller as follows:
5.1 Due Incorporation. RAC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida.
5.2 Corporate Power of RAC. RAC has the full legal right and power and
all authority and approval required to enter into, execute and deliver this
Agreement and to perform fully its obligations hereunder.
5.3 Due Authority. RAC has all power and authority necessary to enable
it to carry out the transactions contemplated by this Agreement. The execution
and delivery of this Agreement and the consummation of the transactions
contemplated by it have been authorized by all necessary corporate action on the
part of RAC, including shareholder approval, if required. This Agreement is a
valid and binding agreement of RAC, enforceable against RAC in accordance with
its terms. Neither the execution and delivery of this Agreement by RAC nor the
consummation of the transactions contemplated by this Agreement will violate,
result in a breach of, or constitute a default under, any agreement or
instrument to which RAC is a party or by which RAC is bound, or any order, rule
or regulation of any court or governmental agency having jurisdiction over RAC.
5.4 No Breach. The execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby will not
(i) violate any provision of the Articles of Incorporation or By-Laws of RAC;
(ii) violate, conflict with or result in the breach of any of the terms of,
result in a material modification of, otherwise give any other contracting party
the right to terminate, or constitute (or with notice or lapse of time or both)
a default under any contract or other agreement to which RAC is a party; (iii)
violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon RAC, or
upon the properties or business of RAC; or (iv) violate any statute, law or
regulation of any jurisdiction applicable to RAC.
5.5 Cash Flow Requirements. RAC acknowledges that it has been informed
by Seller that the anticipated cash flow requirements in the ordinary course of
the Business in which it is currently conducted should range from $35,000 to
$50,000 for up to the next 60 days.
5.6 Brokers' Fees. RAC nor its affiliates have no liability or
obligation to pay any fees or commissions to any broker, finder or agent with
respect to the transactions contemplated by this Agreement for which the Seller
could become liable or obligated.
SECTION 6. CLOSING ITEMS.
6.1 RAC's Deliveries. At Closing, RAC shall deliver to Seller the
following monies and documents:
(a) the Purchase Price, in accordance with Section 3.1
above;
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(b) a "good standing certificate" for RAC obtained from
the Florida Department of State dated as a date
reasonably proximate to the Closing Date;
(c) a certified copy of a resolution of RAC's Board of
Directors authorizing the execution and delivery of
this Agreement and the purchase of the Assets; and
(d) such other documents and instruments as Seller and
its counsel may reasonably request in connection with
the consummation of the transaction contemplated by
this Agreement.
6.2 Seller's Deliveries. At Closing, Seller shall deliver to RAC the
following monies and documents:
(a) a "good standing certificate" for Seller obtained
from the Florida Department of State dated as a date
reasonably proximate to the Closing Date;
(b) a certified copy of a resolution of Seller's Board of
Directors authorizing the execution and delivery of
this Agreement and the purchase of the Assets and
assumption of the liabilities; and
(c) such other documents and instruments as RAC and its
counsel may reasonably request in connection with the
consummation of the transaction contemplated by this
Agreement.
SECTION 7. INDEMNIFICATION.
7.1 Indemnification by Seller. Seller shall indemnify, defend, and hold
RAC and its representatives, successor, and assigns, harmless from and against
any and all damage, loss, judgments, or liability and all expenses (including
reasonable attorneys' fees) incurred by any of the above-named persons,
resulting from or in connection with:
(a) the Assets or the operation of the Business prior to
the Closing Date, and/or
(b) any material breach by Seller of any representation,
warranty or covenant made by Seller in, or any
obligation of Seller under, this Agreement.
The maximum amount which may be recovered from Seller pursuant
to this Section 7.1 shall not, in the aggregate, exceed the Purchase Price. No
claim for indemnification may be made under this Agreement by RAC unless Seller
is given written notice of such claim within two years after the date of this
Agreement.
7.2 Indemnification by RAC. RAC shall indemnify, defend, and hold
Seller and its representatives, successor, and assigns, harmless from and
against any and all damage, loss, judgments, or liability and all expenses
(including reasonable attorneys' fees) incurred by any of the above-named
persons, resulting from or in connection with:
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(a) the Assets or the operation of the Business on and
after to the Closing Date;
(b) any liabilities assumed by RAC under this Agreement;
and/or
(c) any material breach by RAC of any representation,
warranty or covenant made by RAC in, or any
obligation of RAC, this Agreement.
SECTION 8. FURTHER ASSURANCES.
Each of the parties shall execute such documents and other papers and
take such further actions as may be reasonably required or desirable to carry
out the provisions hereof and the transactions contemplated hereby. In addition
and following the Closing, RAC and Seller shall grant to the other reasonable
access to the books and records of the Business so as to permit, if necessary,
the filing of tax returns, audits of tax returns or other bona fide purposes.
SECTION 9. MISCELLANEOUS.
9.1 Notices. Any notice or other communication required or which may
given hereunder shall be in writing and shall be delivered personally,
telegraphed, telexed, sent by facsimile transmission or sent by certified,
registered, or express mail, postage prepaid, and shall be deemed given when so
delivered personally, telegraphed, telexed or sent by facsimile transmission or
if mailed, three (3) days after the date of mailing, as follows:
If to RAC: Roehampton Aid Corp.
5800 Hamilton Way
Boca Raton, FL 33496
Attention: James G. Dodrill, President
Telephone: (561) 862-0529
Fax: (561) 862-0927
If to Seller, to: Total First Aid, Inc.
5607 Hiatus Road, Suite 500
Tamarac, FL 33301
Attention: Michel Marengere, Chairman
Telephone: (954) 724-2929
Fax: (954) 724-1117
Any party may by notice given in accordance with this Section
to the other parties designate another address or person for receipt of notice
hereunder.
9.2 Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) and any collateral agreements executed in connection with the
consummation of the transactions contemplated herein contain the entire
agreement among the parties with respect to the subject matter hereof and
related transactions, and supersede all prior agreements, written or oral, with
respect thereto.
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9.3 Waivers and Amendments. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions hereof
may be waived, only by a written instrument signed by the parties or, in the
case of a waiver, by the party waiving compliance.
9.4 Remedies Not Exclusive. The rights and remedies herein provided are
cumulative and are not exclusive of any rights or remedies which any party may
otherwise have at law or in equity. The rights and remedies of any party based
upon, arising out of or otherwise in respect of any inaccuracy in or breach of
any representation, warranty, covenant or agreement contained in this Agreement
shall in no way be limited by the fact that the act, omission, occurrence or
other state of facts upon which the claim of any inaccuracy or breach is based
may also be the subject matter of any other representation, warranty, covenant
or agreement contained in this Agreement (or in any other agreement between the
parties) as to which there is no inaccuracy or breach.
9.5 Governing Law; Venue. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Florida,
without regard to the conflicts of law provisions thereof. The parties further:
(a) agree that any legal suit, action or proceeding arising out of or relating
to this Agreement shall be instituted exclusively in any Federal or State court
of competent jurisdiction within the County of Palm Beach, State of Florida, (b)
waive any objection that they may have now or hereafter to the venue of any such
suit, action or proceeding, and (c) irrevocably consent to the in personam
jurisdiction of any Federal or State court of competent jurisdiction within the
County of Palm Beach, State of Florida in any such suit, action or proceeding.
The parties each further agree to accept and acknowledge service of any and all
process which may be served in any such suit, action or proceeding in a Federal
or State court of competent jurisdiction within the County of Palm Beach, State
of Florida, and that service of process upon the parties mailed by certified
mail to their respective addresses set forth herein shall be deemed in every
respect effective service of process upon the parties, in any action or
proceeding.
9.6 Exhibits and Schedules. The Exhibits and Schedules to this
Agreement are a part of this Agreement as if set forth in full herein.
9.7 Headings. The headings in this Agreement are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
9.8 Severability. If any term or provision of this Agreement, or the
application thereof to any person or circumstance shall, to any extent, be
determined by a court of competent jurisdiction to be invalid or unenforceable,
the remainder of this Agreement or the application of such term or provision to
persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforced to the fullest extent permitted by
law.
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9.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed, shall constitute an original copy
hereof, but all of which together shall constitute but one and the same
document.
9.10 No Assignment. This Agreement may not be assigned by either party
without the written consent of the non-assigning party, which consent shall not
be unreasonably withheld.
9.11 Independent Legal Counsel. The parties have either (i) been
represented by independent legal counsel in connection with the negotiation and
execution of this Agreement, or (ii) each has had the opportunity to obtain
independent legal counsel, has been advised that it is in their best interests
to do so, and by execution of this Agreement has waived such right.
9.12 Further Assurances. The parties shall execute such documents and
other papers and take such further action as may be reasonably required or
desirable to carryout the provisions hereof and the transactions contemplated
hereby. In addition and following the Closing, RAC and Seller shall grant to the
other reasonable access to the books and records of the Business so as to
permit, if necessary, the filing of tax returns, audits of tax returns or other
bona fide purposes.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date first above written.
ROEHAMPTON AID CORP.
By: /s/ James G. Dodrill
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Name: James G. Dodrill
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Its: President
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TOTAL FIRST AID, INC.
By: /s/ Michel L. Marengere
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Name: Michel L. Marengere
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Its: Chairman and CEO
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