ASSET PURCHASE AGREEMENT
Asset Purchase Agreement (the "Agreement") dated as of the 3rd day of March,
2005, by and between Envirokare Composite Corp., a Delaware corporation,
("Seller") and LRM Industries, LLC, a Delaware limited liability company
("Buyer").
RECITALS
WHEREAS, pursuant to a Plan and Agreement of Merger dated as of even date
herewith (the "Merger Agreement") by and among Seller, Envirokare Tech Inc.
("Parent") and Thermoplastic Composite Designs, Inc. ("TCD"), TCD is merging
into Seller (the "Merger");
WHEREAS, as a result of the Merger, Seller is acquiring, by operation of law,
all of TCD's right, title and interest in and to its assets (the "Assets");
WHEREAS, Buyer desires to purchase from Seller all of Seller's right, title and
interest in and to certain of the assets as specified on Schedule A hereto (the
"Acquired Assets") in accordance with the terms of this Agreement.
NOW, THEREFORE, for the consideration set forth herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereby agree as follows:
ARTICLE 1
DEFINITIONS AND CONSTRUCTION
1.1 Specific Definitions. As used in this Agreement, the following terms
shall have the meaning ascribed to them below:
"Acquired Assets" shall have the meaning provided in the third recital
above.
"Agreement" shall have the meaning given it in the preamble.
"Assets" have the meaning provided in the second recital above.
"Closing" shall mean the consummation of the transactions contemplated
in this Agreement to occur on the Closing Date.
"Closing Date" shall mean March 3, 2005.
1.2 Construction.
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1.2.1 Any reference to an exhibit or section or other provision shall be, unless
otherwise specified, to exhibits, sections or other provisions of this Agreement
which are incorporated herein by reference.
1.2.2 Any reference in this Agreement to another agreement or document shall be
construed as a reference to that other agreement or document as the same may
have been, or may from time to time be, varied, amended, supplemented,
substituted, novated, assigned or otherwise transferred.
1.2.3 Any reference in this Agreement to "this Agreement", "herein", "hereof" or
"hereunder" shall be deemed to be a reference to this Agreement as a whole and
not limited to the particular article, section, exhibit or provision in which
the relevant reference appears and this Agreement as amended, supplemented,
substituted, novated, assigned or otherwise transferred from time to time.
1.2.4 References to any Party shall, where appropriate, include any successors,
transferees and permitted assigns of such Party.
1.2.5 All references in this Agreement designated "Articles" or "Sections" and
other subdivisions are only to the designated articles, sections or subdivisions
of this Agreement.
ARTICLE 2
purchase and sale of assets
2.1 Purchase and Sale. Subject to and upon the terms and conditions of this
Agreement, on the Closing Date and immediately after the Effective Time (as
defined in the Merger Agreement), Seller shall irrevocably and unconditionally
sell, assign, transfer, convey and deliver to Buyer all of Seller's right, title
and interest in the Acquired Assets and Buyer shall irrevocably and
unconditionally purchase, acquire and accept from Seller all of Seller's right,
title and interest in the Acquired Assets.
2.2 Further Assurances. At any time, and from time to time after the Closing
Date, at Buyer's reasonable request and without further consideration to Seller,
Seller shall promptly execute, acknowledge and deliver all such further
instruments of sale, transfer, conveyance, assignment and confirmation, as are
reasonably required, to transfer, convey and assign the Acquired Assets to Buyer
in accordance with this Agreement.
ARTICLE 3
PURCHASE PRICE AND PAYMENT
3.1 Purchase Price. The purchase price for the Acquired Assets shall be payment
of an amount equal to the Merger Consideration, as such term is defined in the
Merger Agreement, which shall be payable to Seller as and when Seller is
required to pay the Merger Consideration provided by the Merger Agreement.
ARTICLE 4
closing
4.1 Place of Closing.
The Closing shall take place at the offices of Seller's counsel in New York, New
York, or at such other location as the Parties may agree, on the Closing Date.
4.2 Closing Deliveries.
At the Closing, the following items shall be delivered:
4.2.1 Bill of Sale.
Seller shall deliver to Buyer a Bill of Sale in the form of Exhibit A hereto.
4.2.2 Security Agreement.
Seller and Buyer shall each execute and deliver a General Security Agreement,
including all exhibits and schedules thereto, in the form of Exhibit B hereto.
ARTICLE 5
representations and warranties of seller
Seller represents and warrants to Buyer as follows:
5.1 Organization.
Seller is a corporation duly formed, validly existing and in good standing under
the laws of the State of Delaware and has all requisite power and authority to
execute and deliver this Agreement, and each other agreement, document or
instrument to be executed by it in connection herewith ("Seller's Documents")
and to perform the obligations to be performed by it hereunder and thereunder.
5.2 Authorization.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby by Seller have been duly authorized by
all requisite action of Seller and no other action or proceeding on the part of
Seller is necessary to authorize this Agreement and Seller's Documents and the
transactions contemplated hereby and thereby.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as follows:
6.1 Organization.
Buyer is a limited liability company duly formed, validly existing and in good
standing under the laws of the State of Delaware and has all requisite power and
authority to execute and deliver this Agreement, and each other agreement,
document or instrument to be executed by it in connection herewith ("Buyer's
Documents") and to perform the obligations to be performed by it hereunder and
thereunder.
6.2 Authorization.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby by Buyer have been duly authorized by
all requisite action of Buyer and no other action or proceeding on the part of
Buyer is necessary to authorize this Agreement and Buyer's Documents and the
transactions contemplated hereby and thereby.
ARTICLE 7
NOTICES
Any communications between the Parties or regular notices provided herein to be
given shall be given to the following addresses:
To Buyer:
LRM Industries, LLC
7400 State Road, #46
Mims, Florida 32754
To Seller
Envirokare Composite Corp.
225 W. Glades Road, Suite 112E
Boca Raton, Florida 33431
Any notice that is personally served shall be effective upon the date of
service; any notice given by U.S. Mail shall be deemed effectively given, if
deposited in the United States Mail, registered or certified with return receipt
requested, postage prepaid and addressed as provided above, on the date of
receipt, refusal or non-delivery indicated on the return receipt. In addition,
any party may send notices by facsimile, electronic transmission or by
nationally recognized overnight courier service which provides written proof of
delivery. Any notice sent by facsimile or electronic transmission shall be
effective upon confirmation of receipt in legible form, and any notice sent by a
nationally recognized overnight courier shall be effective on the date of
delivery to the party at its address specified above as set forth in the
courier's delivery receipt. Any party may, by notice to the other from time to
time in the manner herein provided, specify a different address for notice
purposes.
ARTICLE 8
MISCELLANEOUS
8.1 Entire Agreement. This Agreement and all exhibits hereto represent the
entire understanding and agreement between the parties hereto with respect to
the subject matter hereof and supersede all prior oral and written and all
contemporaneous oral negotiations, commitments and understandings between the
parties.
8.2 Exhibits. All exhibits attached hereto are, by this reference, incorporated
into and made a part of this Agreement.
8.3 Modifications and Waivers. This Agreement may be amended, modified or
waived only by a separate writing signed by the parties.
8.4 No Waiver. No failure or delay in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or
the exercise of any right, power or privilege hereunder.
8.5 Severability. If any term, provision or covenant of this Agreement or the
application thereof to any person or circumstances shall, to any extent, be
construed to be invalid or unenforceable in whole or in part, then such
term, provision or covenant shall be construed in a manner as to permit its
enforceability to the fullest extent permitted by applicable law. In any
case, the remaining provisions of this Agreement or the application thereof
to any person or circumstances, other than those to which they have been
held invalid or unenforceable, shall remain in full force and effect.
8.6 Binding Agreement. This Agreement constitutes a binding agreement of the
parties and shall inure to the benefit of and be binding upon each Party
and its respective successors and assigns. No party shall assign any rights
or obligations under this Agreement without the prior written consent of
the other parties.
8.7 Governing Law. The validity, interpretation, enforceability and performance
of this Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to its conflict of laws
principles.
8.8 Section Headings. The section headings are for the convenience of the
Parties and, in no way, alter, modify, amend, limit or restrict the
contractual obligations of the Parties.
8.9 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original, but all of which shall be one
and the same document.
8.10 No Third Party Beneficiaries. This Agreement is entered into for the sole
benefit of the Parties hereto, and except as specifically provided herein, no
other person shall be a direct or indirect beneficiary of, or shall have any
direct or indirect cause of action or claim in connection with, this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed by their authorized representatives as of the Effective Date.
ENVIROKARE COMPOSITE CORP.
By: /s/ George Kazantzis
Name: George Kazantzis
Title: CEO
LRM INDUSTRIES, LLC
By: John Verbicky
Name: John Verbicky
Title: CEO