ASSET PURCHASE AGREEMENT
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement") is entered into as of this 23rd
day of January 2004, by and between Appgen Technologies, Inc. a Delaware
corporation ("Seller"), and Aptus, Corp., a Delaware corporation ("Buyer").
Buyer and Seller are referred to collectively herein as the "Parties."
RECITALS
WHEREAS, Buyer's core business includes Software Solutions and proprietary
technology; and
WHEREAS, Buyer desires to purchase from Seller intellectual property,
including web site, promotional templates, documentation, technical support
logs, customer lists, VAR lists, trade name(s) or company name(s) used by the
Seller ("Assets"); and
WHEREAS, subject to the terms and conditions contained in this Agreement,
Seller desires to sell to Buyer, and Buyer agrees to purchase from Seller, the
Assets.
NOW, THEREFORE, in consideration of the mutual covenants, representations,
and warranties set forth in this Agreement, the parties agree as follows:
1. DEFINITIONS.
"Assets" are defined and set forth in Exhibit C.
"Buyer" has the meaning set forth in the preface above.
"Closing" has the meaning set forth in section 2(c) below.
"Closing Date" has the meaning set forth in section 2(c) below.
"Code" means the Internal Revenue Code of 1986, as amended.
"Disclosure Schedule" has the meaning set forth in section 3 below.
"Knowledge" means actual knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to
quantity and frequency).
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
"Post Closing Obligations" has the meaning set forth in section 8
below.
"Purchase Price" has the meaning set forth in section 2(b) below.
"Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's,
materialmen's, and similar liens, (b) liens for Taxes not yet due and
payable [or for Taxes that the taxpayer is contesting in good faith through
appropriate proceedings], (c) purchase money liens and liens securing
rental payments under capital lease arrangements, and (d) other liens
arising in the Ordinary Course of Business and not incurred in connection
with the borrowing of money.
"Seller" has the meaning set forth in the preface above.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under
Code section 59A), customs duties, capital stock, franchise, profits,
withholding, social security (or similar), unemployment, disability, real
property, personal property, sales, use, transfer, registration, value
added, alternative or add-on minimum, estimated, or other tax of any kind
whatsoever, including any interest, penalty, or addition thereto, whether
disputed or not.
2. BASIC TRANSACTION.
(a) Purchase and Sale of Assets. On and subject to the terms and conditions
of this Agreement, Buyer agrees to purchase from Seller, and Seller agrees to
sell, transfer, convey, and deliver to Buyer, all of the Assets at the Closing
for the consideration specified below in this section 2.
(b) Purchase Price. At Closing, which shall occur on or before
January 31, 2004, unless extended, Buyer shall pay as follows: 1. Upon the
signing of the definitive Purchase Agreement a cash payment of $9,000.
(c) Closing. Closing shall occur at 5:00 P.M., on January, 31, 2003 at 1127
Broadway Plaza, Suite 203, Tacoma, Washington 98402 as agreed to between Buyer
and Seller, and shall be contingent upon Seller delivering Exhibit C and any
required assignments attached hereto as Exhibits A and B and Buyer delivering
the consideration specified in section 2b. In addition, Seller shall provide
Buyer with Copies of all credit lines with any banks or other entities with whom
Seller has entered into equity financing that shall be approved by Buyer in
writing prior to close.
(d) Deliveries at the Closing. At the Closing, (i) Seller shall deliver to
Buyer the various certificates, instruments, and documents referred to in
section 6(a) below; (ii) Buyer shall deliver to Seller the various certificates,
instruments, and documents referred to in section 6(b) below; (iii) Seller shall
execute, acknowledge (if appropriate), and deliver to Buyer (A) assignments in
the forms attached hereto marked collectively Exhibit A, if required, and (B)
such other instruments of sale, transfer, conveyance, and assignment as Buyer
and its counsel reasonably may request; (iv) Buyer shall execute, acknowledge
(if appropriate), and deliver to Seller (A) an assumption in the form attached
hereto as Exhibit B, if required, and (B) such other instruments of assumption
as Seller and its counsel reasonably may request; and (v) Buyer shall deliver to
Seller, or on Seller's behalf, the consideration specified in section 2(b)
above.
(e) Notwithstanding anything else in this Agreement to the contrary, except
as specifically set forth in Exhibit D, Buyer shall not assume, pay, perform, or
discharge, and Seller shall solely retain, pay, perform and discharge, all
obligations and liabilities of Seller relating to the Business, whether
disclosed, undisclosed, direct, indirect, fixed or contingent, known or unknown,
incurred in the ordinary course of business or otherwise.
3. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller, to the best of Seller's knowledge, represents and warrants to Buyer
that the statements contained in this section 3 are correct and complete as of
the date of this Agreement and shall be correct and complete as of the Closing
Date (as though made then and as though the Closing Date were substituted for
the date of this Agreement throughout this section 3), except as set forth in
the Disclosure Schedule, attached as Exhibit D hereto, accompanying this
Agreement and initialed by the Parties ("Disclosure Schedule"). The Disclosure
Schedule shall be arranged in paragraphs corresponding to the lettered and
numbered paragraphs contained in this section 3.
(a) Organization of Seller. Seller is a Delaware corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Authorization of Transaction. Seller has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. Without limiting the
generality of the foregoing, the Board of Directors of Seller have duly
authorized the execution, delivery, and performance of this Agreement by
Seller. This Agreement constitutes the valid and legally binding obligation
of Seller, enforceable in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in ss.2 above),
shall (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Seller is subject or any
provision of the charter or bylaws of Seller or (ii) conflict with, result
in a breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Seller is a party or by which it
is bound or to which any of its assets is subject (or result in the
imposition of any Security Interest upon any of its assets). Seller is not
required to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or governmental
agency in order for the Parties to consummate the transactions contemplated
by this Agreement (including the assignments and assumptions referred to in
ss.2 above).
(d) Brokers' Fees. Seller has 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 Buyer could become
liable or obligated.
(e) Title to Assets. Seller has good and marketable title to all of
the Assets, free and clear of any Security Interest or restriction on
transfer. The assets of Seller being acquired through this Agreement
consist of various confidential business and technical information and
other operational relationships.
(f) Seller has not previously sold, leased, transferred, encumbered or
assigned any of the Assets;
(g) Seller has not imposed any Security Interest upon any of the
Assets;
(h) Seller has not experienced any substantial loss or change in the
Assets, their nature and scope within the past three months, except in
regard to the closure of the seller's business activities;
(i) Disclosure Schedule. The Disclosure Schedule shall list all
exceptions to the warranties set out in the preceding paragraph, in any.
The Disclosure Schedule shall be approved in writing by the Buyer before
closing. The Disclosure Schedule shall also set forth each instance in
which the Assets are subject to any outstanding injunction, judgment,
order, decree, ruling, or charge in any action, suit, proceeding, hearing,
or investigation of, in, or before any court or quasi-judicial or
administrative agency of any federal, state, local, or foreign jurisdiction
or before any arbitrator, or the absence thereof.
(j) Disclosure. The representations and warranties contained in this
section 3 do not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements and
information contained in this section 3 not misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER.
Buyer represents and warrants to Seller that the statements contained in
this section 4 are correct and complete as of the date of this Agreement and
shall be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this section 4), except as set forth in the Disclosure Schedule. The
Disclosure Schedule shall be arranged in paragraphs corresponding to the
lettered and numbered paragraphs contained in this section 4.
(a) Organization of Buyer. Buyer is a Nevada corporation duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its incorporation.
(b) Authorization of Transaction. Buyer has full power and authority
(including full corporate power and authority) to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement
constitutes the valid and legally binding obligation of Buyer, enforceable
in accordance with its terms and conditions.
(c) Noncontravention. Neither the execution and the delivery of this
Agreement, nor the consummation of the transactions contemplated hereby
(including the assignments and assumptions referred to in section 2 above),
shall (i) violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any
government, governmental agency, or court to which Buyer is subject or any
provision of its charter or bylaws or (ii) conflict with, result in a
breach of, constitute a default under, result in the acceleration of,
create in any party the right to accelerate, terminate, modify, or cancel,
or require any notice under any agreement, contract, lease, license,
instrument, or other arrangement to which Buyer is a party or by which it
is bound or to which any of its assets is subject. Buyer does not need to
give any notice to, make any filing with, or obtain any authorization,
consent, or approval of any government or governmental agency in order for
the Parties to consummate the transactions contemplated by this Agreement
(including the assignments and assumptions referred to in section 2 above).
5. PRE-CLOSING COVENANTS.
The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
(a) General. Each of the Parties shall use its reasonable best efforts
to take all action and to do all things necessary, proper, or advisable in
order to consummate and make effective the transactions contemplated by
this Agreement (including satisfaction, but not waiver, of the closing
conditions set forth in section 6 below).
(b) Notices and Consents. Seller shall give any notices to third
parties that Buyer reasonably may request in connection with the matters
referred to in section 3(c) above. Each of the Parties shall give any
notices to, make any filings with, and use its reasonable best efforts to
obtain any necessary authorizations, consents, and approvals.
(c) Preservation of the Asset. Seller shall keep the Asset
substantially intact, except in regard to the Sellers termination of
business activities.
(e) Full Access. Seller shall permit representatives of Buyer to have
full access at all reasonable times, and in a manner so as not to interfere
with the normal business operations of Seller to all premises, properties,
personnel, books, records (including Tax records), contracts, and documents
of or pertaining to Seller.
(f) Notice of Developments. Each Party shall give prompt written
notice to the other Party of any material adverse development causing a
breach of any of its own representations and warranties in section 3 and
section 4 above. No disclosure by any Party pursuant to this section 5(f),
however, shall be deemed to amend or supplement the Disclosure Schedule or
to prevent or cure any misrepresentation, breach of warranty, or breach of
covenant.
(g) Exclusivity. Seller shall not (i) solicit, initiate, or encourage
the submission of any proposal or offer from any Person relating to the
acquisition of any capital stock or other voting securities, or any
substantial portion of the assets, of Seller (including any acquisition
structured as a merger, consolidation, or share exchange) or (ii)
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner any effort or attempt by any Person to do or seek any of the
foregoing. Seller shall notify Buyer immediately if any Person makes any
proposal, offer, inquiry, or contact with respect to any of the foregoing.
6. CONDITIONS TO OBLIGATION TO CLOSE.
(a) Conditions to Obligation of Buyer. The obligation of Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in section 3 above
shall be true and correct in all material respects at and as of the Closing
Date;
(ii) Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) Seller shall have procured all of the third party consents
specified in section 5(b) above;
(iv) no action, suit, or proceeding shall be pending before any court
or quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement, (B)
cause any of the transactions contemplated by this Agreement to be
rescinded following consummation, or (C) affect adversely the right of
Buyer to own the Assets and to operate the former businesses of Seller; and
(v) Seller shall have delivered to Buyer a certificate to the effect
that each of the conditions specified above in section 6(a)(i)-(iv) is
satisfied in all respects.
Buyer may waive any condition specified in this section 6(a) if it executes a
writing so stating at or prior to the Closing.
(b) Conditions to Obligation of Seller. The obligation of Seller to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in section 4 above
shall be true and correct in all material respects at and as of the Closing
Date;
(ii) Buyer shall have performed and complied with all of its covenants
hereunder in all material respects through the Closing;
(iii) no action, suit, or proceeding shall be pending before any court
or quasi-judicial or administrative agency of any federal, state, local, or
foreign jurisdiction or before any arbitrator wherein an unfavorable
injunction, judgment, order, decree, ruling, or charge would (A) prevent
consummation of any of the transactions contemplated by this Agreement or
(B) cause any of the transactions contemplated by this Agreement to be
rescinded following consummation (and no such injunction, judgment, order,
decree, ruling, or charge shall be in effect); and
(iv) Buyer shall have delivered to Seller a certificate to the effect
that each of the conditions specified above in section 6(b)(i)-(iii) is
satisfied in all respects.
Seller may waive any condition specified in this section 6(b) if it
executes a writing so stating at or prior to the Closing.
7. TERMINATION.
(a) Termination of Agreement. Certain of the Parties may terminate this
Agreement as provided below:
(i) Buyer and Seller may terminate this Agreement by mutual written
consent at any time prior to the Closing;
(ii) Buyer may terminate this Agreement by giving written notice to
Seller at any time prior to the Closing (A) in the event Seller has
breached any material representation, warranty, or covenant contained in
this Agreement in any material respect, Buyer has notified Seller of the
breach, and the breach has continued without cure for a period of ten (10)
days after the notice of breach or (B) if the Closing shall not have
occurred on or before February 10, 2004, by reason of the failure of any
condition precedent under ss.6(a) hereof (unless the failure results
primarily from Buyer itself breaching any representation, warranty, or
covenant contained in this Agreement); and
(iii) Seller may terminate this Agreement by giving written notice to
Buyer at any time prior to the Closing (A) in the event Buyer has breached
any material representation, warranty, or covenant contained in this
Agreement in any material respect, Seller has notified Buyer of the breach,
and the breach has continued without cure for a period of ten (10) days
after the notice of breach or (B) if the Closing shall not have occurred on
or before January 31, 2004, by reason of the failure of any condition
precedent under section 6(b) hereof (unless the failure results primarily
from Seller itself breaching any representation, warranty, or covenant
contained in this Agreement).
(b) Effect of Termination. If any Party terminates this Agreement
pursuant to section 7(a) above, all rights and obligations of the Parties
hereunder shall terminate without any Liability of any Party to any other
Party (except for any Liability of any Party then in breach).
8. POST CLOSING OBLIGATIONS.
None.
9. MISCELLANEOUS.
(a) Survival of Representations and Warranties. All of the representations
and warranties of the Parties contained in this Agreement shall survive the
Closing hereunder as and to the extent provided in the Agreement with Seller
Stockholders.
(b) Press Releases and Public Announcements. No Party shall issue any press
release or make any public announcement relating to the subject matter of this
Agreement prior to the Closing without the prior written approval of the other
Party; provided, however, that any Party may make any public disclosure it
believes in good faith is required by applicable law or any listing or trading
agreement concerning its publicly-traded securities (in which case the
disclosing Party shall use its reasonable best efforts to advise the other Party
prior to making the disclosure).
(c) No Third-Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
(d) Entire Agreement. This Agreement (including the documents referred to
herein) constitutes the entire agreement between the Parties and supersedes any
prior understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
(e) Succession and Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties named herein and their respective successors
and permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Party; provided, however, that Buyer may (i) assign any or all of
its rights and interests hereunder to one or more of its Affiliates and (ii)
designate one or more of its Affiliates to perform its obligations hereunder (in
any or all of which cases Buyer nonetheless shall remain responsible for the
performance of all of its obligations hereunder).
(f) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(g) Headings. The section headings contained in this Agreement are inserted
for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(h) Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing. Any notice, request, demand,
claim, or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by "Priority International" or "Priority
Overnight" service through Federal Express, all fees prepaid, and addressed to
the intended recipient as set forth below:
If to Buyer:
John P. Gorst, President
Aptus, Corp.
1127 Broadway Plaza, Suite 203
Tacoma, Washington 98402
If to Seller:
Appgen Technologies, Inc.
P.O. Box 789
West Sayville, NY
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Party notice in the manner herein set forth.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Washington without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Washington or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Washington.
(j) Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by Buyer and
Seller. No waiver by any Party of any default, misrepresentation, or breach of
warranty or covenant hereunder, whether intentional or not, shall be deemed to
extend to any prior or subsequent default, misrepresentation, or breach of
warranty or covenant hereunder or affect in any way any rights arising by virtue
of any prior or subsequent such occurrence.
(k) Severability. Any term or provision of this Agreement that is invalid
or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(l) Expenses. Each of Buyer and Seller shall bear his or its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
(m) Construction. The Parties have participated jointly in the negotiation
and drafting of this Agreement. In the event an ambiguity or question of intent
or interpretation arises, this Agreement shall be construed as if drafted
jointly by the Parties and no presumption or burden of proof shall arise
favoring or disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires otherwise. The
word "including" shall mean including without limitation.
(n) Incorporation of Exhibits and Schedules. The Exhibits and Schedules
identified in this Agreement are incorporated herein by reference and made a
part hereof.
(o) Specific Performance. Each of the Parties acknowledges and agrees that
the other Party would be damaged irreparably in the event any of the provisions
of this Agreement are not performed in accordance with their specific terms or
otherwise are breached. Accordingly, each of the Parties agrees that the other
Party shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically this Agreement and
the terms and provisions hereof in any action instituted in any court of the
United States or any state thereof having jurisdiction over the Parties and the
matter (subject to the provisions set forth in section 8(p) below), in addition
to any other remedy to which it may be entitled, at law or in equity.
(p) Submission to Jurisdiction. Each of the Parties submits to the
jurisdiction of any state or federal court sitting in the Western District of
Washington in any action or proceeding arising out of or relating to this
Agreement and agrees that all claims in respect of the action or proceeding may
be heard and determined in any such court.
(q) Bulk Transfer Laws. Buyer acknowledges that Seller shall not comply
with the provisions of any bulk transfer laws, if any, of any jurisdiction in
connection with the transactions contemplated by this Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on as of the
date first above written..
SELLER:
Appgen Technologies, Inc
By: /s/Mark Andre
Mark Andre
Chief Executive Officer
BUYER:
Aptus, Inc.
By: /s/ John P. Gorst
Name: John P. Gorst
Title: President
EXHIBIT A
List and Forms of Assignments
EXHIBIT B
List and Forms of Assumptions
EXHIBIT C
List of Assets
EXHIBIT D
Disclosure Schedule