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EXHIBIT 3
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 2 of 13 Page ID#: 112
ASSET PURClIASEAGREEMENT
TBIS AGltE£MENT has been entered into as of the 24th day of July, 2009.
BETWlJ:EN:
G.I. JOE'S, INC. and G~ JOE'S BOLDING CORP., oo%porationssubsisting
under the laws of the Sta~ of Delaware, U.S.A.
(collectively
-
the "Sellers")
-AND-
t1F~ HOLDINGS, INC., a corporation subsisting under the laws of the State of
Utah. U.S.A. .
(the "Pun:baser")
WHEREAS pUl'SUllUt to an. off$! to purchase made by the Purchaser to the Sellers and approved
by the U.ni~ Stales Bankruptcy Court for the S~e of Dol aware as of July 14. 2009. the Sellers
have agreed to sell and the Purchaser has agreed to purchase certain assets of the Sellers, upon
the tenns and subject to the conditions set out herein;
ARTICLE 1
INTERPRETATION
. . 1.1 Definitions.
Unless the context o1herwise requires, the following terms and expressions sball have the
meanings set forth below wherever. used in tbis Agreement:
Agreement"
II means this Asset Purchase Agreement, together with all Schedules attached
hereto, as the same may be mod!fled in accordance with the provisions herein contained;
"Assets" means aU of the trademarks, trade names, dornain names and service marks
(including logos) and related IntellectUli1 Property rights therein. and all goodwill
associated therewith. as more panicttlw;ly Set forth in Schedule "A" hereto;
"Closing Date" means July 29, 2009 ot such other date as may be agreed to in writing
between the Sellers and the Purohaset;
IICiosing Time" means 11 ;00 a.m. CST on the Closing Date, or suoh other time .as may
be agreed to in writing between the Sellers and the Purchaser; -
"Closing" means the sale, transfer and/or assignment of the Assets by the Sellers to the
Purchaser and the delivery by the Purchaser TOthe sellers oflbat portion of the Fu:rohase
Ramsden
Ramsden Decl.
Decl. Exhibit
Exhibit 3 Page
Page 1
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 3 of 13 Page ID#: 113
",..'
.
Price due' on the Closing. Dam and the oompletion of all matters inoldenm.i thereto as
.
. heeeln provided; . .
lfCOurt Ordel'" Ine&mi the oIder ofthe'United States :BaJlkruptcy Court for the State of
Delaware referred ·to in the first preambular pamgmph above;
"l>eplIsit Aulount" has the meaning IPVeJ1to such term·in Section 4.1(11);
"Intellectual Property!) means in'respect of the Asse~ all proprietaryrlghu an.ywhere in
the w01'ld provided '\tt1der ttadllmark, trade secret or Other statutoiY or: common law
.,nnclples ~plicable to llitelleotual property. and all applieatl.ons and reglstrations in
1'¢$peCt thereof; '..,
"Lot A Assets" has the meaclng given to it ~ Sobednle "A";
"P'm'chlWt Price" means·the purchase priqe for the Assots as set fo.rtb in Section 2.2r
"Transaction" IneMS the sale oltho AsseTS to the 1?urchaser pursuant to this Agreement,
1.Z lleadings.
..
. The di'Visl.on oftbis A.greelnen1 into Articles, Sections and paragraphs and the insertion of
headings' is for .convenience of reference only and tiball not 4lft"oot the construction -or
intetpretation heJ:eof.' Unle$S otherwise stated, aU tefe.cenccs berein to Articles or
Sections are to those ofthill Agreement.
1.3 Schedules.
Ramsden
Ramsden Decl.
Decl. Exhibit
Exhibit 3 Page
Page 2
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 4 of 13 Page ID#: 114
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1.6 Cnnency.
All amounts stated herein are slated hi the currency of the United' Slates of America,
unless otherwise specifically required.
ARTICLE 2
SALE AND PURCHASE
Any and all taxes and duties whatsoever arising with respect to the sale and purchase of
the Assets herein shall be borne by the Purchaser, save and except taxes arising on the
SeUers' net Income or gain. ' .
AltTICLE 3 .
CLOSING
The Closing sl:1alItake plaoe at the Closing Time at the. offices of Potter, Anderson &
Corroon LLP. Wilmingto~ Delaware or as otherWise agreed to by the Sellers and the
Purchaaer in wrlting.
3.2 Sellers' De1ivenes at Closing.
At the Closing, the Sellets shall denver to the Purohaser the following documents:
(a) bills of sale, 'transfers, assignments, conveyances and such other documents with
respect to the Assets as may reasonably be required by the Purchaser to effect the
transactions contemplated herein. including, ~out litnitation. all third party
consents required to effect the sale and pnrchase herein;
Ramsden
Ramsden Decl.
Decl, Exhibit
Exhibit 3 Page
Page 3
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 5 of 13 Page ID#: 115
(b) certlfioates signed by..a senior officer of eaoh of the .SeUers~ng thilt the
representations and warranties made by the Sellers in this Agreement are trse and
cotrect: as oithe ClosingTime:
(e) a copy 'of the Com Orderas entered by the nppncable court and a copy of 831Y
approval ot(ler iasued by the applicable coUrt after execution hei:cof;
(d) tcasonabl~ evidence of1h~tmnination of any conUacts. ammgemell11s, licences or
other bindingcommitmentll ~e between·the Sellers and any third parties
affecting O~ relating to 1heAssets Ondtor thls ~OD; ,
(el such <focununtation ooncerning the Asse1;S as are in 1h¢ possession or control of
the' Sellers and the courts at the Closing J?ate, includitlg dooomentation as to
registmtions orappliuations ibrregistratiou; and
(f) such other documents or instruments as thc'PUtthaser may rWonllbly require.
3.3 Pur(lh88er'd)eHverl~
at Closing,
At the Closing Time, the Pnrohaser shall deliver:
(a) a, CertifiCatesigned bya ~or officer of 1he PUtohaset certifYing that the
tepresen't3tions andwamm.tles made by the Purchaser in this Agr¢e.lnentare mre
and oo:rreot as of the Closing T'mte;
(b) ~ch other d~1D1'relrtS or iIlSt%1lrnentS as the Sellers may reasonably :require; and
" To the wdent any delivery of tangible property is made pursuant· hereto. the slltne shaH
occur at Wihnmgton, Delaware, . .
3.4 :RI$kofLnss
Upon closing .and completion of the sale and purchase ~saction herein at the Closing
TIme, risk ofl()ss mend to the.As$ets shall 'transfer to the Purcltaser.
ARlICLE4
PAmmr'
4.1 payment offurehase Pr1~
Ramsden
Ramsden Decl.
Decl. Exhibit
Exhibit 3 Page
Page 4
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 6 of 13 Page ID#: 116
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terminate and no party shall be farth.er liable beteunder. In the event the CloSing
does not oecur as a result of the SeUers:fulling to fulfill their obligations hmlri or
for any other reason (other than a breach hereof by the Purchaser), then the
Deposit Amount anti. ~cOtUedlnterest shall be repaid forthwUh to the Purchaser,
this Agreement sball 1ennl:oateIlI1d no party shall be iimher liable hereunder; and
(b) the l11rohase Prlce, less the Deposit Am.O\J11t, shall be paid and satisfied by.
payment at the Closing time in £all by bank draft or solioitGr's trust cheque
payable to Potter~ Anderson & Corrool1'LLP. in trust for the Vendors.
. ARTICLES
llEPRF.J8EN'l'ATIONS. WAgR.ANrms MfD 'COVENANTS
5.1 , Representations, Wro:ranties and Covenants of the SeJ]et'8.
The Sellers t'eprc.sent. warrant and covenant as of the Closing Date to the Purchaser and
aoknowledge and conflrm that ·tnt? Purohaser ;is r~lying upon such representations,
warranties and «rvenants in, connection wi~ the p\lrQhase oftbe Asset~:
(a) the sale and mmsfel' fot-'the Assets to the Purehsser on the- Closing Date shall be
fte6 and clear of any and all encumbrances, seourl.ty interests" oharges., liens)
adverse claims, restrictive covenants. options Of privileges Or any agreement to
. otelUe any, of the foregoing; ,
1':s:O :h:> *"" ~~\t!.."'!l.' k."olAl~~..>
. (b) }:.neither the exeeution and delivery of thls Agreement. nor the completion of the
~ T.ta11saotion shall: .
(I) . violate, nor be in Ol)nflict 'With, any provlslon (If any agreement or
instrument to whioh the Sellers are parties·OJ: by whioh t1iey are bound, or
any of the tenns of the to'nStatipg'documents of the Vendors. or any order,
decree, statute. ,by-law, regulation, covenan1, or restrictioD, applicable to,
lhe Sellers or ~nyof the AssetS; OJ.'
,(li) give. any person any rlght to tenninate,' cancel, or remove any of the'
Assets;
(0) this Ag:reement bas been duly eXCQtrtedend deHveredby the Seller$ and all other
doouments «(\louted end delivered by tbe Sellers pursuant hereto shall have been
duly execute(! and (ieliveredby the Sellers. This A,greement. does and such
deeuments will constimte legal; \'alid and binding <lbligatiODS of the Sellers;
Cd) the Sellers are the legal and- benefioial owners of the Assets with good marketable
title thereto and'havcthe right to seUthe same pnrsuanthereto;
Ramsden
Ramsden Decl.
Decl, Exhibit
Exhibit 3 Page
Page 5
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 7 of 13 Page ID#: 117
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'P.l'O -t'1-
e,••.• ,,+
-l'\- ce...•.••.
~ ()rJ.~ ~
The Purchaser hereby tepresents, warrants and covenants to the best of. its knowledge
information and bellef, as of each' ofilia date hereof and the Cl~ing Date, to the SenetS,
and tho Purchnser aokilowledges and confirms that the,SeUers lU'C l'elying upon such
representations and warranties and covenants in connection with the sale of the .Assets:
(8) • the Purchaser is duly incorporated and validly subsisting under the laws of the
State ofUtab. with full right, power ami authority to enter into ~ pexfonn all its
obligations under this Agreement; and
(b)' all corporate ll.ll.d other prooeedfngs required to be taken' by me :PurchilSer, to
authl:>= this Agreement and the transactions provided for bewin· have been or
will 1» \laUdly taken. llJI of the Closing Tinle. •
Ramsden
Ramsden Decl.
Decl, Exhibit
Exhibit 3 Page
Page 6
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 8 of 13 Page ID#: 118
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5:3 Condition
It is understood and agreed tl"tat the~sale and purahnse oithe Assets shall be meAe on'an
"as iSfi basi$ \Uld· the Sellers .make no' representations or warranties whatsoever to :the
Purobaser as to the oondition, meIClmmabUity, quality oditness, for purpose of the Ass~
oratty of them
(, ~ ART1CLE(i
\.•• ~~ INDEMlSl'fIES
6.l ers'lrtdemmtyo
~S~~ .'
Ramsden
Ramsden Decl.
Decl. Exhibit
Exhibit 3 Page
Page 7
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 9 of 13 Page ID#: 119
~
~
il31po~n
-------.
any party for
consequential, indirect or punitive <;lamages • .," out limitation, consequential
business losses or losses of value, or profits suffered oy
6.4
ARTICLE 7
~QTICES
7.1 Notices.
Any .notioes or other communications required or given under this AgJ:eament shall be in
writing, shall be delivered in person or by faoslmile and shall be deemed to have been
given and received when delivered in person or when communicated by facsimile during
normal business hours on a business day of the addressee (and otherwise on the next
business day):
(a.) itto the Sellers, addressed to:
Facsimile; (302)778.()l07
Faosimile: (403)5704030
or at such other place or places or to su~ other person or persons as shall be designated
in wrltingby a party. to this' Agreement in the manner herein provided.
Ramsden
Ramsden Decl.
Decl. Exhibit
Exhibit 3 Page
Page 8
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 10 of 13 Page ID#: 120
·,
ARTICLES
MlSCELL6NEOUS
8.1 Enurement.
'this Agreement shan' be binding·upon and enure to the benefit of the parties hereto and
their tespective, successors and pm~ assigns, Thi&Agreement may m~tbe ~signed
by any party hereto, by operation of law Ci' otherwise, witho-nt the ptiorwrlUen consent of
the other parties hCl'eto and any requfred eo'llrt order.
8.2 EntireAgreement
This Agreement, including the SChedule,. together with the agreemen1s and other
documents to be exeouted 'lUld delivo...ell as referred to herein. constitute the entire
agreement among the paniea with 1(lspect' to the transactionS CO!llemplm:ed hereby and
supersedes cit othtlr prior agreements, undertakings. negotiations and discussiom.
whether oral or ~ of 1b~ pat1ies ,with respect to tile transactions coDtemp{ated
hefeby (lllcluding without limi1atlon any ofi'er.l to pnrchase) and there are no wammties.
representations. covenants or other agreements among the paIti¢s. ex¢.ept lIS specifically
set fol1b h~ein.
8.3 SevembUlty.
In case ~y provision m. tbis A~eemep.t shall. be prohibited; invalid" illegal or
unenfuroeable m any jurisdiction.
such provision shall bp ineffective qnIy to theexWnt of
such lllollibition, invalidity, filegality Ot ~roeability in such jurisdiotion without
aff'ectinif or impairing the validity, legality or e!l£or¢ea'bllity of the remaining provisions
hereof; and any such proliibition, invalidity, illegality or uuenfotecabllity shall not-affect
or impair sueh provision in any other jurisdiotion.
8.4 lJ'nrtherAssurances.
Each of the parties hereto, l''t the reQuest and expense of the other pllrties hereto shiill
deliver sltCh further or additional (IoOllOlentB and instruments as may reasonably be
considered necesslIl)' or desirable to pt'Operly reflect and carry out tile tmelntent and
meaning of this Agreement. . •
8.5 Sui'vl'va.l.
The representations, wattanttes. covenants and agreements made by the parties each to
the other· in or pursuant to this ~ent $ball survive the ClosinlJi of the transactions
herein piovided. for. .
8.7 WaiteI'.
Ramsden
Ramsden Decl.
Decl. Exhibit
Exhibit 3 Page
Page 9
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FaiJuxe by any party bereto to ·insist in anyone or mOte Instances upon. the ~ct
p¢t.fQrmance of auy one of'the llOvenlmtSllOnbiined herein sbnll. not be cODlll.tued as a
waiver or relinquIsbtnent l)f such covenant No waiver by·any party hereto ,of any such
covenant lIlulll be deemed tQ hllve been made unless expressed in writing and signed by
the waiving party. .
8.8 Amendment..
This Agreement may not be amended. modified or terminated ell:cept by an mstroxnenf in
.
writing signed by aU of the parties hereto •
8.9' . Counblrparts aud Jl'aeshnile.
ThIs 'AgJ:eement may be executed in counterparts. ej1Ch of whiah when 110 executed shall
be deemed to be an original and 11'11 oounterpatts together shall 90nstltute one and '!he
same instn'llnent. A signed counterpart provided by way of fllO$itnile ttansmission shaU
be 8S binding upon the parties !IS an originally signed counterpart.
Ramsden
Ramsden Decl.
Decl. Exhibit
Exhibit 3 Page
Page 10
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IN WITNESS WHEREOF the parties hereto have ClUl9ed'thi$ Agreement to be. el{ecuted;and
deliv~d e:ffeative as of'fhe date fust written above. '
'G.I. JOE·SllNC.
Per: ~tf?J1i.~
Ch/ ••.~ 'Ke- ~ff~i).rl 'q' O~UJj
Title:
Per: a~9-C!1/.~
CJtlf:f..f. 7Ce~~"1 O~~
Title:
UF~
Per:
OWJ5"t-.<,( ~"",f(J(.",,1
Title:
Ramsden
Ramsden Decl.
Decl. Exhibit
Exhibit 3 Page
Page 11
Case 3:10-cv-00639-ST Document 7-3 Filed 06/07/10 Page 13 of 13 Page ID#: 123
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SCHEDULE "An
ASSETS
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Ol.loo'& tbo SpIll1:I el:. AIltO StotO lI1IJemark 1~89m 2962544 61141200' 6113f.2/HI
l~Il'S Spcntll OUldoor & MOTQ(relit) tntdc:mark mml4 3+16102 611012008' 51912014
Joo'sSJ><ltt9, Outdoor & M'O(¢ (S1w) Mdemarll: T12S~13 3-4S14lili &11912008 1lI1BI2014
4IS0000~ .
PAC·925S84v.3 01f2Ul0lJ95'mpm
Ramsden
Ramsden Decl.
Decl, Exhibit
Exhibit 3 Page
Page 12