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Title: |
Asset Purchase Agreement |
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Date: |
2004 |
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Preview shows 11KB of 53KB total |
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$53 |
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ID: |
#1211852 |
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<SEQUENCE>2
<FILENAME>may03k-ex21.txt
<TEXT>
[EXHIBIT 2.1]
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT ("Agreement) dated as of April
____, 2004 is by and among (i) Giant Motorsports, Inc., a Nevada
corporation ("Buyer"), (ii) King's Motorsports, Inc. d/b/a
Chicago Cycle, an Illinois corporation ("Seller"), (iii) Mr.
Jason Haubner and (iv) Mr. Jerry Fokas (collectively, the
"Shareholders").
RECITALS
A. Seller owns and operates a retail motorcycle, all
terrain vehicle and off-road vehicle dealership at 7320 N.
Western Avenue, Chicago, Illinois (the "Business").
B. Seller desires to sell and transfer to, and Buyer
desires to purchase and assume from Seller, substantially all of
the assets of the Business and specifically identified
liabilities and obligations of the Business, on the terms and
subject to the conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises
hereinafter set forth and other good and valuable consideration,
the parties hereto hereby agree as follows:
ARTICLE 1
ASSETS SUBJECT TO THIS AGREEMENT
--------------------------------
1.1 Purchase and Sale of Assets
---------------------------
Upon the terms and subject to the conditions of this
Agreement, Seller shall sell, assign, transfer, deliver and
convey to Buyer, and Buyer shall purchase and acquire from
Seller, at the Closing (as defined in Section 7.1 hereof), all
rights, properties and assets, wherever situated, owned by Seller
in connection with the Business (collectively, the "Acquired
Assets"), but expressly excluding therefrom the Excluded Assets
(as defined in Section 1.2 hereof). The Acquired Assets shall
include, without limitation, the following:
1.1.1 Tangible Personal Property
--------------------------
All machinery, equipment, attachments, tools,
supplies, tooling, furniture, fixtures, parts, accessories,
telephones, alarms, computers, office furniture and
equipment and all other tangible assets and personal
property of every kind and nature owned by Seller and used
in the Business as of the Closing, including, without
limitation, as set forth on Schedule 1.1.1 (the "Tangible
Personal Property").
1.1.2 Inventory
---------
All new and used inventory used in the Business at
the Closing (the "Inventory"). The parties acknowledge and
agree that Buyer shall purchase and/or obtain the rights to
the motorcycles, all terrain vehicles and off-road vehicles
separate and apart from this Agreement.
1.1.3 Assumed Contract
----------------
Except as otherwise provided in Section 2.2 hereof,
all rights and incidents of interest of, and benefits
accruing to, Seller in and to the Contracts (as defined in
1
<PAGE>
Section 4.1.4) listed or described on Schedule 1.1.3 hereto
(the "Assumed Contracts").
1.1.4 Records
-------
All books, files, documents, customers lists,
customers' records, supplier lists, supplier records,
promotional and advertising material, files of promotional
literature, technical information, correspondence, artwork,
operating records, other business information relating to
the Business which has been reduced to writing or other
records of Seller (collectively, "Records").
1.1.5 Going Concern Value
-------------------
The Business carried on and conducted by Seller as a
going concern, including any and all goodwill and similar
intangibles associated therewith.
1.1.6 Intangible Property Rights
--------------------------
All municipal, state and federal franchises,
permits, licenses, agreements, waivers, authorizations and
any and all other intangible property rights held or used in
connection with, or required for, the Business to the extent
transferable (the "Intangible Personal Property").
1.1.7 Intellectual Property
---------------------
Any shop rights or other rights to inventions,
formulas and proprietary software, patent, patent
applications, trade secrets, service marks, trademarks,
domain names, copyrights and trade names owned, licensed,
used or applied for by Seller and used exclusively in the
Business, including, without limitation, the items listed on
Schedule 1.1.7 hereto (collectively, the "Intellectual
Property").
1.1.8 Telephone and Facsimile Numbers
-------------------------------
All of Seller's right, title and interest in all
telephone and facsimile numbers and e-mail addresses used in
connection with the Business.
1.1.9 Warranty Claims
---------------
All rights under or pursuant to all warranties,
representations and guarantees made by suppliers,
manufacturers, contractors and other third parties in
connection with the operation of the Business and affecting
any of the Acquired Assets, in each case, only to the extent
transferable.
1.1.10 Scheduled Items
---------------
All of the items listed on Schedule 1.1.10.
1.2 Excluded Assets
---------------
Notwithstanding anything to the contrary contained in
this Agreement, only the following assets (collectively, the
"Excluded Assets") shall be retained by Seller and shall not be
included in the Acquired Assets sold, transferred, assigned,
conveyed and delivered to Buyer:
1.2.1 Cash
----
All cash and cash equivalents of Seller or relating
to the conduct of the Business outstanding as of the
Closing.
1.2.2 Accounts Receivable
-------------------
All accounts and notes receivable of Seller or
relating to the conduct of the Business outstanding as of
the Closing.
1.2.3 Tax Refunds
-----------
Any and all tax refunds associated with the Business
owed for periods prior to the Closing.
2
<PAGE>
1.2.4 Dealer Payments
---------------
Any and all dealer payments, holdbacks, retail
bonuses or like payments owed in connection with the
Business for periods prior to Closing.
1.2.5 Automobile Inventory
--------------------
The automobiles listed on Schedule 1.2.5.
1.2.6 Scheduled Items
---------------
All of the items listed on Schedule 1.2.6.
ARTICLE 2
ASSUMED LIABILITIES AND LIABILITIES NOT ASSUMED
-----------------------------------------------
2.1 Assumed Liabilities
-------------------
Upon the terms and subject to the conditions of this
Agreement, Buyer shall assume as of the Closing and thereafter
shall promptly pay, perform and fully satisfy when due only the
liabilities listed in this Section 2.1 (all such assumed
liabilities and obligations are hereinafter collectively referred
to as the "Assumed Liabilities"). The Assumed Liabilities shall
consist only of:
2.1.1 Assumed Contracts
-----------------
Those performance obligations of Seller arising
after the Closing Date to complete the services pursuant to
the Assumed Contracts listed on Schedule 1.1.3.
2.1.2 Post Closing Obligations
------------------------
Any and all obligations, payments or other
liabilities incurred by Buyer or which are associated with
the Acquired Assets and/or the Assumed Liabilities, which
arise after the Closing.
2.1.3 Floor Plan Financing. Subject to the receipt of
--------------------
Manufacturer Approvals (as defined in the Management Agreement),
the floor plan financing of Seller.
2.2 Liabilities Not Assumed
-----------------------
Except as set forth in Section 2.1 hereof, Buyer shall
have no responsibility for and shall not assume or be liable for
any liabilities or obligations of Seller whatsoever, whether
fixed, contingent or otherwise, and whether known or unknown
(collectively, "Liabilities Not Assumed"). Without in any
manner limiting the foregoing, except for liabilities expressly
assumed by Buyer in Section 2.1 hereof, the Liabilities Not
Assumed shall include the following:
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