AGREEMENT made this 13th day of October, 1995, by and between ▇▇▇▇▇▇
▇▇▇▇▇▇ & CO., INC., a New York corporation ("Seller") and THE ▇▇▇▇▇ GROUP,
INC., a Delaware corporation ("Buyer").
W I T N E S S E T H:
--------------------
WHEREAS, Seller desires to sell to Buyer and Buyer desires to purchase
from Seller certain of the assets of Seller constituting the operating business
of Seller (the "Seller's Business"), subject to and upon, the following terms,
covenants and conditions:
ARTICLE I
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Sale of Assets
--------------
1.1 Assets To Be Sold. Subject to the terms and conditions of this
Agreement, on the Closing Date (as defined in Section 6.1), Seller shall sell,
transfer and assign to Buyer, subject only to the liens, encumbrances and
charges hereinafter set forth, all of Seller's right, title and interest in and
to the following assets and properties (collectively the "Assets"):
(a) All inventories of raw materials, supplies, work in progress and
finished goods used or held in connection with the Seller's Business or its
products as of the Closing [as hereinafter defined] (collectively the
"Inventory");
(b) All furnishings, vehicles, fixtures, spare parts, tools, machinery
and equipment, computer equipment, office equipment and packing and packaging
materials wherever located, used or held in connection with Seller's Business;
(c) All accounts receivable held by Seller as of the Closing (the
"Accounts Receivable");
(d) The Assumed Liabilities (as hereinafter defined);
(e) Any patents, trademarks and trade names, trademark and trade name
registrations, service marks and service ▇▇▇▇ registrations, copyrights and
copyright registrations, the applications therefor and the licenses and
franchises with respect thereto, together with the goodwill and the business
appurtenant thereto; and all trade secrets, technology (including technology
with respect to which Seller is a sublicensee, in such case only insofar as
permitted under the applicable sublicense agreement), processes, inventions,
designs, drawings, blueprints, specifications, patterns, royalties, privileges,
permits and all other similar intangible personal property, in each case, used
or held in connection with Seller's Business, as limited by the provisions of
Schedule 1.1(e);
(f) All papers, documents, instruments, books and records, files,
agreements, books of account and other records pertaining to the Assets or
Seller's Business (including without limitation customer invoices, customer
lists, vendor and supplier lists, drafts and other documents and materials
relating to customer transactions), other than those that pertain primarily to
the Excluded Assets (as hereinafter defined) and are not reasonably necessary
for the operation of Seller's Business and other than the Warehouse Sublease
and Long Island Railroad documents (each as hereinafter defined); and
(g) All other assets and rights of every kind and nature, personal,
tangible or intangible, that are owned and used by Seller in connection with
Seller's Business, including the Lease and the Warehouse Sublease, except for
assets and rights specifically excluded pursuant to Section 1.2.
1.2 Assets Excluded From Sale: The following assets and properties are
specifically excluded from the Assets (collectively the "Excluded Assets") of
Seller to be sold to Buyer:
(a) Seller's Real Properties and the improvements thereon;
(b) Seller's cash and cash equivalents;
(c) Seller's marketable securities, if any;
(d) Life insurance policies owned by Seller, including their cash
surrender value;
(e) Seller's prepaid expenses;
(f) Seller's deferred pension and finance costs;
(g) Deferred income taxes;
(h) Security deposit under the Warehouse Lease; and
(i) Any receipts with respect to customers whose accounts receivable
were previously written off and not included in the Accounts Receivable.
ARTICLE II
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Assumption of Liabilities
-------------------------
2.1 Assumption of Certain Liabilities by Buyer. At the Closing, Buyer
shall assume and agree to pay and perform all obligations to be paid and
performed by Seller pursuant to the leases, contracts and other agreements and
arrangements to which Seller is then a party or is bound (i) disclosed on
Schedule 7.6 hereto; or (ii) in writing and not required to be disclosed on
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Schedule 7.6 hereof; provided, however, that the same shall have been entered
into or incurred in the ordinary course of Seller's Business (the "Assumed
Liabilities").
2.2 Liabilities Not Assumed by Buyer. Buyer shall not assume or be
responsible for any of the following liabilities or obligations (the "Excluded
Liabilities"):
(a) Seller's accounts payable;
(b) Any liabilities or obligations relating to the Excluded Assets;
(c) Any liabilities or obligations of the Company arising prior to the
Closing, including, without limitation, any of Seller's tax liabilities arising
out of the transactions contemplated by this Agreement; except, however, that
Buyer shall be responsible for its share of sales and use taxes payable in
connection with the purchase and sale of the Assets, if any;
(d) Any liabilities or obligations arising solely out of any action,
suit or proceeding based upon an event occurring or a claim arising prior to
the Closing Date, all of which shall be the sole responsibility of Seller.
ARTICLE III
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Purchase Price.
---------------
3.1 The purchase Price for the Assets (the "Purchase Price") shall be
Four Million Seven Hundred Fifty Thousand Dollars ($4,750,000) plus the
Inventory Value determined under Section 3.2 plus the total Accounts Receivable
at Closing determined under Section 3.3.
3.2 Inventory Value.
(a) "Inventory Value" shall mean the value of the Inventory as of the
Closing Date, determined in accordance with Generally Accepted Accounting
Principles, ("GAAP"), on the first in, first-out (FIFO) method, consistently
applied and consistent with the February 28, 1995 audited FIFO inventory in
Seller's financial statements, based upon the actual cost of the materials
(such cost to be determined by reference to invoice cost when it can be
specifically identified to such materials, less all available trade and payment
discounts, plus, in the case of items of Inventory which have been manufactured
by Seller, the direct labor costs and manufacturing overhead (such allocation
to be consistent with the past practices of Seller).
(b) A physical Inventory count will be taken by Buyer and Seller at
the close of business on the day preceding the Closing Date. The Inventory
count and valuations will be recorded on an inventory sheet, a copy of which,
when approved by Buyer,
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will be signed by authorized representatives of each of Seller and Buyer. Where
there is a dispute as to Inventory Value, Seller and Buyer will use their best
efforts to come to a reasonable resolution of the dispute, but if they cannot
resolve the dispute within thirty (30) business days after completion of the
physical Inventory count, they will submit the dispute to binding arbitration
in accordance with the rules of the American Arbitration Association, in New
York, New York, before a single arbitrator.
(c) The out-of-pocket costs of any arbitration will be borne one-half
(1/2) by Buyer and one-half (1/2) by Seller but neither Seller nor Buyer will
be entitled to reimbursement for their or their respective employees' time or
their counsels' or accountants' fees in connection therewith.
3.3 Accounts Receivable.
(a) "Accounts Receivable" shall mean the aggregate of Seller's trade
accounts receivable, all of which shall be purchased by Buyer and transferred
and assigned to it by Seller at the Closing.
(b) At the election of Buyer, Seller shall repurchase any Accounts
Receivable not collected within ninety (90) days after the Closing Date;
provided, however, that Buyer shall have used its best efforts to collect such
Accounts Receivable consistent with Seller's ordinary course of business.
Seller shall be entitled to a credit against such repurchase equal to the
amount of the reserves for cash and normal trade allowances and bad debts
deducted by Buyer under Section 4.1(d) hereof, or if the amount of such
reserves shall exceed the amount of such repurchase, such excess shall be paid
by Buyer to Seller. If Buyer and Seller shall have made sales of Seller's
products to the respective customer, all payments made by such customer shall
be applied by Buyer to the respective customer's indebtedness in the order in
which the same was incurred unless otherwise specified by the respective
customer in writing. If Seller shall receive directly any payments respecting
any Account Receivable, it shall remit such payments to Buyer.
ARTICLE IV
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Payment of Purchase Price.
--------------------------
4.1 Buyer shall pay the Purchase Price to Seller as follows:
(a) Seventy-Five Thousand ($75,000) Dollars concurrently herewith, to
be held in escrow pending the Closing or sooner termination of this Agreement
by Seller's attorneys, Steckler, Gutman, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, (the "Escrow
Agent").
(b) Two Million Four Hundred Twenty-Five Thousand ($2,425,000) Dollars
in immediate funds at Closing.
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(c) The Inventory Value shall be paid in immediate funds at Closing;
provided, however, that to the extent, if any, that the Inventory Value shall
be in dispute, such portion of the Inventory Value shall be so paid within five
(5) business days following resolution of such dispute.
(d) The total amount of the Accounts Receivable less reserves for cash
and normal trade allowances and bad debt shall be paid in immediate funds at
Closing.
(e) Two Million Two Hundred Fifty Thousand ($2,250,000) Dollars shall
be paid by delivery to Seller of Buyer's Promissory Note in the form of Exhibit
4.1(e) annexed hereto.
ARTICLE V
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Leases
------
5.1 Seller is the owner of premises known as ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ and ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, in which it
presently conducts Seller's Business. Both properties are herein called
"Seller's Real Properties."
5.2 Seller and Buyer shall execute and deliver at Closing a two-year
(2) lease for Seller's Real Properties in the form of Exhibit 5.2 annexed
hereto at a rental of Three Hundred Ninety Thousand ($390,000) Dollars per
annum, payable in equal monthly installments on a net, net, net basis except
for (a) roof and other structural and outside repairs; (b) violations of any
Federal, State or local law, code or ordinance or any administrative rule or
regulation except to the extent, if any, relating to Buyer's use of Seller's
Real Properties; (c) damage by fire or other event to be covered by the
insurance policies required to be maintained in respect of Seller's Real
Properties; and (d) conditions existing as of the Closing Date, all of which
shall be Seller's obligations; granting Buyer a right to extend the term of the
lease for three (3) successive periods of one (1) year each; and further
granting Buyer the option to purchase Seller's Real Properties at a purchase
price and on terms to be determined in the manner provided in the Lease, such
option to be exercised at least six (6) months prior to the expiration of the
lease term.
5.3 Seller is the lessee of a warehouse facility at ▇▇-▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ (the "Warehouse") owned by J&J Farms Creamery, Inc. which
obtained financing from the New York City Industrial Development Agency and the
New York City Financial Services Corporation. Seller and Buyer shall execute
and deliver at Closing, a sublease for the Warehouse in the form of Exhibit 5.3
annexed hereto. Seller will not be required to obtain the consent of the New
York City Industrial Development Agency or the New York City Financial Services
Corporation or the landlord to the sublease; provided, however, that Seller, in
addition to any other indemnification obligations contained in this Agreement,
will indemnify, defend and hold Buyer harmless with respect to any
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damages, liabilities, claims, losses and expenses, including reasonable legal
fees and court costs and any rent amounts which Buyer must pay in excess of the
rent payments due under the sublease during the specified term thereof, which
may be incurred by Buyer as a result of the parties' entering into and
implementing the sublease without any required consents. Seller has furnished
Buyer with a copy of the Warehouse Lease and the extensions thereof for a term
now expiring on April 30, 1996.
ARTICLE VI
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Closing
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6.1 Closing Date. The closing of the transactions contemplated by this
Agreement (the "Closing") will take place at the offices of the Escrow Agent,
at 10:00 A.M. on November 30, 1995 (the "Closing Date"). If any of the
conditions precedent to Seller's or Buyer's obligation to close this
transaction set forth below are not satisfied on the scheduled Closing Date and
the respective party does not wish to waive such condition, such party may, at
its sole discretion, on notice to the other of at least three (3) business
days, reschedule the Closing for another date (which must be a business day)
not later than .
6.2 Actions to be Taken at the Closing. At the Closing, the parties
shall take the following actions and deliver the following documents:
(a) Seller shall execute and deliver to Buyer a ▇▇▇▇ of Sale in the
form of Exhibit 6.2(a) annexed hereto covering the Assets described in Sections
1.1(a), 1.1(b) and 1.1(c) of this Agreement.
(b) Seller and Buyer shall execute and deliver an Assignment and
Assumption Agreement covering the assets described in Sections 1.1(d), 1.1(e)
and 1.1(f) of this Agreement.
(c) Seller shall deliver to Buyer corporate resolutions of Seller's
Board of Directors and shareholders authorizing the delivery, execution and
consummation of this Agreement, certified by an officer of Seller as being
valid and effective.
(d) Buyer shall deliver to Seller corporate resolutions of Buyer's
Board of Directors and shareholders authorizing the delivery, execution and
consummation of this Agreement, certified by an officer of Buyer as being valid
and effective.
(e) Seller shall deliver a Certificate executed by an officer of
Seller, dated as of the Closing Date and in form and substance reasonably
acceptable to Buyer, certifying as to Seller's full compliance with each of its
representations, warranties and covenants under this Agreement.
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(f) Buyer shall deliver a Certificate executed by an officer of Buyer,
dated as of the Closing Date and in form and substance reasonably acceptable to
Buyer, certifying as to Buyer's full compliance with each of its
representations, warranties and covenants under this Agreement.
(g) Seller shall deliver to Buyer an amendment to Seller's corporate
charter (in form ready for immediate filing with the New York Department of
State) changing Seller's corporate name to a name which is (i) wholly
dissimilar from "▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc." and (ii) available for use in
the State of New York; Buyer shall file this amendment immediately after the
Closing and deliver the filing receipt thereof, or a copy, to Seller.
(h) Buyer and Seller shall execute and deliver the lease for Seller's
Real Properties.
(i) Seller and Buyer shall execute and deliver the Sublease for the
Warehouse.
(j) Seller and Buyer shall deliver the Opinion Letters of their
respective attorneys described in Sections 12.1(c) and 12.2(c) of this
Agreement.
(k) Buyer shall make the payments required by Sections 4(b) through
4(d) and deliver its Promissory Note required by Section 4(e).
(l) Seller and Buyer shall execute and deliver such other documents
and Certificates as are required by the terms of this Agreement or as may be
reasonably requested by the other party.
6.3 Prorations. At the Closing, all payments respecting the Assumed
Liabilities and all service and utility charges shall be prorated as of the
Closing Date.
ARTICLE VII
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Representations and Warranties to Buyer
---------------------------------------
7. Seller represents and warrants to Buyer as follows:
7.1 Organization; Power and Authority. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
New York, and has the corporate power and authority to (a) own, operate and
lease the properties it now owns, operates and leases, (b) carry on the
Seller's Business as it is now being conducted, (c) enter into this Agreement
and (d) consummate the transactions contemplated by this Agreement. Seller owns
Seller's Real Properties and has full power and authority to enter into and to
consummate the transactions contemplated by the lease to Buyer of Seller's Real
Properties.
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7.2 Authorization; Due Execution, No Conflicts.
(a) This Agreement has been duly authorized by all necessary action on
the part of Seller and its shareholders. Upon the execution and delivery of
this Agreement, this Agreement will constitute the legal, valid and binding
obligation of Seller enforceable against Seller in accordance with its terms.
(b) Seller's execution, delivery and performance of this Agreement
will not (i) constitute a breach or violation of (A) Seller's corporate charter
or By-Laws, (B) any law, rule or regulation, or (C) any material agreement,
indenture, deed of trust, mortgage, loan agreement or other material instrument
to which Seller is a party or by which Seller is bound, including any Assumed
Liabilities other than with respect to the loan documents for loans to Seller
from National Westminster Bank (U.S.A.) which loans will be repaid to Seller in
full, with interest, at the Closing; (ii) constitute a violation of any order,
judgment or decree to which Seller is a party or by which Seller's assets or
properties are bound or affected; (iii) result in the acceleration of any
material debt owed by Seller; or (iv) result in the creation of any lien,
charge or encumbrance upon any of the Assets.
7.3 Title to and Condition of the Assets.
(a) At the Closing, Buyer will receive good and marketable title to
all of the Assets, free and clear of all security interests, mortgages, liens,
pledges, charges or encumbrances of any nature and that the present mortgages
and liens held by National Westminster Bank (U.S.A.) on certain of Seller's
assets shall be satisfied and discharged at the Closing and Seller shall
deliver to Buyer at Closing such instruments as may be necessary to discharge
the same of record.
(b) To the best of Seller's knowledge, all of Seller's Real
Properties, machinery and equipment are in good operating condition, subject
only to ordinary wear and tear, and fit for their intended purpose, except to
the extent described in Schedule 7.3(b) to this Agreement.
(c) All of the Assets are owned by Seller and, except as set forth on
Schedule 7.3(c) to this Agreement, Seller is not leasing nor holding on
consignment, any of the Assets.
(d) All Assets which comprise Inventory have been purchased and/or
manufactured for sale or use by Seller in the ordinary course of Seller's
Business.
7.4 Claims; Litigation; Compliance With Laws.
(a) To the best of Seller's knowledge, there are no persons holding
any claims of any nature against Seller, including claims arising out of, or in
connection with, the operation of Seller's Business or of any of the Assets,
except for such claims
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arising from goods sold or services rendered to Seller in the ordinary course
of Seller's Business which do not exceed in the aggregate $20,000. No such
claims or liabilities, if any, shall be assumed by Buyer.
(b) Except as disclosed in Schedule 7.4(b) to this Agreement, Seller
is not: (i) a party to any litigation, proceeding or administrative
investigation, and to Seller's knowledge none is pending or threatened against
it, relating to Seller, Seller's Business or the Assets or in connection with
the transactions contemplated by this Agreement or (ii) subject to any
outstanding order, writ, injunction or decree of any court, government or
governmental authority against or affecting Seller, the Assets or Seller's
business.
(c) To the best of Seller's knowledge, Seller is not in violation of,
and Seller's actions in the consummation of the transactions contemplated by
this Agreement do not violate or infringe on, any federal, state or local law
or ordinance or any administrative rule or regulation. To the best of Seller's
knowledge, Seller has maintained all licenses and permits and has filed all
registrations, reports and other documents required by local, state and federal
authorities and regulating bodies in connection with the Assets or Seller's
Business.
7.5 Accounts Receivable. Schedule 7.5 to this Agreement initialed by
the parties for identification sets forth the total amount of all accounts
receivable held by Seller as of October 9, 1995. The amounts shown on Schedule
7.5 are accurate in all material respects and determined in accordance with
GAAP, consistently applied. The Accounts Receivable arose from bona fide
transactions, and no further goods or services are required to be provided in
order to entitle Seller or its assignee to collect the Accounts Receivable in
full (it being understood, however, that Seller makes no representation or
warranty with respect to the callectibility of the Accounts Receivable). None
of the Accounts Receivable has been assigned or pledged to any other person,
corporation or other entity and, to the knowledge of Seller, no defense or
set-off has been asserted by any account obligor, except as set forth on
Schedule 7.5.
7.6 List of Leases, Contracts and Other Data. Annexed hereto as
Schedule 7.6 is a list setting forth with respect to the operations of Seller's
Business, as of the dates specified on such Schedule, the following:
(a) All real property owned by Seller and all leases of real or
personal property involving payments in excess of $20,000 per annum to which
Seller is a party, either as lessee or lessor, with a brief description of the
property to which each such lease relates and the significant rental terms
(including rents, termination dates and renewal conditions);
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(b) All collective bargaining agreements, employment and consulting
agreements, executive compensation plans, bonus plans, deferred compensation
agreements, employee pension plans or retirement plans, employee profit sharing
plans, employee stock purchase and stock option plans, group life insurance,
hospitalization insurance or other plans or arrangements providing for benefits
to employees of Seller engaged in Seller's Business;
(c) Any patents, trademarks and trade names, trademark and trade name
registrations, service marks and service ▇▇▇▇ registrations, copyrights and
copyright registrations that are unexpired on the date hereof and relate to
Seller's Business, all applications therefor and all licenses and sublicenses
with respect thereto;
(d) To the best of Seller's knowledge, all contracts, understandings
and commitments (including without limitation powers of attorney, mortgages,
indentures and loan agreements or obligations for borrowed money including,
without limitation, guarantees) to which Seller is a party or to which Seller
or any of the Assets are subject and which are not specifically referred to in
(a), (b) or (c) above, and which (A) is a contract or group of related
contracts which involve payments exceeding $25,000 per annum in amount, (B) is
a sales contract of an open-ended or blanket nature or provides for prepaid
commissions or rebates, (C) contains warranties by Seller in excess of those
customary in Seller's conduct of Seller's Business, (D) contains penalty
provisions for late delivery or completion, or (E) contains a prohibition on
the assignment thereof without the consent of the other party thereto; and
(e) The names and current annual compensation rates of all employees
of Seller engaged in Seller's Business earning in excess of $70,000 per annum.
True and complete copies of all documents referred to in Schedule 7.6 hereto
have been provided or made available to Buyer or its Counsel. Except as
disclosed in said Schedule, to the knowledge of Seller, no claim has been
asserted that any lease or other contract referred to in the Schedule is not
valid and enforceable in accordance with its terms for the periods stated
therein, and Seller has not been notified of any claims that there is under any
such lease or other contract any existing default or any condition, event or
act that, with notice or lapses of time or both would constitute such a
default, nor would consummation of the transactions contemplated hereby result
in a default or any such condition, event or act, which in any such case, would
have a material adverse effect on Seller's Business, the Assets or the
financial condition of Seller's Business from and after the Closing Date.
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7.7 Employees; Employee Benefits.
(a) Except as set forth in Schedule 7.7(a)(1), to this Agreement none
of Seller's employees has any understanding or agreement (written or
otherwise), with Seller. Except as set forth in Schedule 7.7(a)(2), Seller does
not have any collective bargaining or union contracts or agreements. There have
not been any unfair labor practice complaints, labor difficulties or work
stoppages, or threats thereof, affecting any of Seller's activities. Seller
knows of no union campaign presently being conducted to solicit employees to
authorize a union to request a national labor relations board certification
election with respect to any of Seller's employees.
(b) Except as set forth on Schedule 7.7(b) to this Agreement, Seller
is not a party to and has no liability (contingent or otherwise) under, any
pension, disability, group life insurance, hospitalization insurance, profit
sharing, retirement or other employee benefit plan or arrangement or for
funding of past services of employees.
(c) Schedule 7.7(c) to this Agreement is a true and complete list of
all notes and receivables due to Seller from its officers, employees, directors
and shareholders and all other transactions involving Seller and any of its
officers, employees, directors and shareholders.
7.8 Environmental and Occupational Matters.
(a) To the best of Seller's knowledge, all federal, state and local
permits, licenses and authorizations required for, or used in, the
construction, occupancy, use and operation of Seller's Real Properties have
been obtained and are presently valid and in full force and effect. A complete
list of all such permits, licenses and authorizations is attached as Schedule
7.8(a) to this Agreement. To the best of Seller's knowledge, no permits,
licenses or authorizations are necessary, or required for the construction,
occupancy, use and operation of Seller's Real Properties or any other aspect of
the conduct of Seller's Business.
(b) To the best of Seller's knowledge, none of Seller's Real
Properties nor any property of its predecessors has been used to handle, treat,
store or dispose of any chemical, hazardous or toxic waste or substance
including air, atmosphere, all soils, ground water and surface waters located
on, in, over or under Seller's Real Properties, are not contaminated with any
chemical, hazardous or toxic waste or substance or other substances or
pollutants which contamination may give rise to any obligation under any
currently existing federal, state or local law (statutory or common), rule,
regulation or ordinance. To the best of Seller's knowledge, no real or personal
property or air or atmosphere of any sort or description, wherever situated,
has, by reason of the handling, storage, transportation, treatment, disposal or
emission of any chemical, hazardous or toxic, waste or material or other
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substance or pollutant by Seller (its employees, agents or contractors) been
contaminated or adversely affected with or by such wastes, substances,
materials or other substances or pollutants which contamination or adverse
effect has or may give rise to any liability or expense under or by reason of
any currently existing federal, state or local law, rule, regulation or
ordinance, the common law or any claim.
(c) The previously used underground tank on Seller's Real Properties
has been rendered inoperable as shown by Exhibit 7,8(c) to this Agreement, and
Seller shall be and remain responsible for any required removal of such tank
and for any remediation associated therewith if required by applicable law.
(d) Seller has not received notice of any outstanding violations of,
or any consent decrees pending or entered against Seller, regarding
environmental, occupational (meaning worker or workplace related), safety or
land use matters, including matters affecting the emission of air pollutants,
the discharge of water pollutants, the management of hazardous or toxic
substances or wastes or noise.
(e) To the best of Seller's knowledge, there are no threatened
violations affecting Seller or its predecessors or their properties with
respect to any federal, state or local environmental, occupational or safety
law, rule, regulation, ordinance, permit, license or authorization, and there
are no present discussions with any federal, state or local governmental agency
concerning any alleged violation of environmental, occupational or safety laws,
rules, regulations, ordinances, permits, licenses or authorizations.
(f) Seller has not received notice of any pending threatened claims,
lawsuits or administrative proceedings against Seller regarding environmental,
occupational or safety compliance, control or liability.
7.9 Gross Sales. Seller's monthly gross sales from March 1, 1995
through August 31, 1995 are set forth on Schedule 7.9 to this Agreement.
Buyer's representatives will have the right, during business hours and upon at
least two (2) business days' notice, to examine Seller's books and records to
verify gross sales after August 31, 1995.
7.10 Financial Statements. Seller has delivered to Buyer complete
copies of its financial statements for the five (5) fiscal years ended February
28, 1991, February 29, 1992, February 28, 1993, 1994 and 1995, respectively,
with the corresponding accountants' reports, including balance sheets and
accompanying statements of profit and loss and related schedules of costs and
expenses for the covered periods (collectively the "Financial Statements").
Each of the Financial Statements truly and completely reflects the financial
condition, results of operations and related costs and expenses of Seller as of
such dates and for
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the period then ended, and all of such statements were prepared in accordance
with GAAP, consistently applied.
7.11 Undisclosed Liabilities. Seller does not know of any liability or
obligation not reflected on the Financial Statements. Seller knows of no basis
for the assertion of any claim or liability against Seller which is not fully
reserved against in the Financial Statements.
7.12 Taxes. Except for the returns and reports listed on Schedule 7.12
to this Agreement for which extensions of the time to file have been obtained,
Seller has prepared and timely filed all federal, state and local tax returns
and reports as are and have been required to be filed, and such returns were
prepared accurately and are on a basis consistent with Seller's financial
records and all taxes shown thereon to be due have been timely paid in full.
Seller is current in its payment of all federal, state and local income,
unemployment, withholding, social security and other taxes and no claims have
been made, threatened or asserted against Seller by the United States
Government or by any state or local government for any such taxes. Seller will
promptly discharge any and all tax deficiencies asserted against it. Seller's
U.S. Corporation Income Tax Return for the fiscal year ended February 28, 1994
has been selected for audit by the Internal Revenue Service.
7.13 Absence of Changes or Events. Except as disclosed on Schedule
7.13 to this Agreement or as disclosed in the Financial Statements, Seller has
operated its business only in the ordinary course and there has not been, since
February 28, 1995: (i) any material adverse change in the financial condition
or results of operation of Seller; (ii) any damage, destruction or loss,
regardless of whether covered by insurance, which materially and adversely
affected Seller's Business or the Assets; or (iii) any commitment to a
transaction material to Seller's Business with a related party or not in the
regular course of Seller's Business.
7.14 Creditors. Schedule 7.14 to this Agreement is a true and complete
list of all of Seller's creditors as of August 31, 1995.
7.15 Disclosure. No statement, representation or warranty made by
Seller in this Agreement, any other documents or statement relating to Seller,
or Seller's Business and provided to Buyer contains any untrue statement of any
material fact or omits a material fact necessary to make the statements
contained in this Agreement or such schedules or exhibits in light of the
circumstances in which they were made, not misleading.
-13-
ARTICLE VIII
------------
Buyer's Representations and Warranties
--------------------------------------
8.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has
the corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement and to enter into
the lease of Seller's Real Properties.
8.2 Authorization; Due Execution; No Conflicts.
(a) This Agreement has been duly authorized by all necessary corporate
action on the part of Buyer. Upon the execution and delivery by Buyer of this
Agreement and the lease of Seller's Real Properties will each constitute the
legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms.
(b) Buyer's execution, delivery and performance of this Agreement will
not (i) constitute a breach of violation of (A) Buyer's Articles of
Incorporation or By-Laws, (B) any law, rule or regulation, or (C) any material
agreement, indenture, deed of trust, mortgage, loan agreement or other material
instrument to which Buyer is a party or by which Buyer is bound; or (ii)
constitute a violation of any order, judgment or decree to which Buyer is a
party or by which any of Buyer's assets are bound or affected.
8.3 Disclosure. No statement, representation or warranty made by Buyer
in this Agreement, any other document or statement relating to Buyer and
provided to Seller contains any untrue statement of any material fact or omits
a material fact necessary to make the statements contained in this Agreement or
any statement of Buyer's financial condition, in light of the circumstances in
which they were made, not misleading.
ARTICLE IX
----------
Brokers
-------
9.1 Seller acknowledges that it used Private Corporate Advisors, Inc.
as a broker in connection with the transactions contemplated by this Agreement.
Seller shall be solely responsible for any and all fees, commissions or other
expenses which are owed to Private Corporate Advisors, Inc. Buyer and Seller
each represents and warrants to the other that it has not employed any broker
or finder (other than Private Corporate Advisors, Inc.) in connection with the
transactions contemplated by this Agreement.
-14-
ARTICLE X
---------
Survival of Obligations,
Representations and Warranties
------------------------------
10.1 The provisions of this Agreement (including Seller's and Buyer's
representations and warranties) shall survive for three (3) years after the
Closing; provided, however, that the indemnities of Buyer with respect to
Assumed Liabilities and of Seller with respect to the Excluded Liabilities
shall survive without limitation.
ARTICLE XI
Covenants Pending Closing
-------------------------
11.1 Conduct of Seller's Business Through The Closing Date. Prior to
the Closing Date, Seller shall (except as otherwise consented to in writing by
Buyer):
(a) Operate Seller's Business in the ordinary course as historically
conducted (including with respect to buying, production and sales).
(b) Reorder Inventory in the ordinary course as historically
conducted.
(c) Not enter into any transaction, take any action or fail to take
any action which would result in, or could reasonably be expected to result in
any of Seller's representations, warranties, disclosures or agreements in this
Agreement or the exhibits or schedules to this Agreement, or in connection with
the consummation of the transactions contemplated by this Agreement to not be
true and complete immediately after the occurrence of such transaction. Seller
shall: (i) maintain its assets in good operating condition, subject to ordinary
wear and tear; (ii) maintain Seller's present insurance in force; and (iii)
comply with the provisions of all agreements, leases, laws and regulations
applicable to Seller or Seller's Business.
(d) Not enter into any agreements, contracts, purchases or sales other
than in the ordinary course of business without the written consent of Buyer,
including any agreements which would dispose of or encumber any of the Assets.
(e) Use its best efforts to preserve Seller's present business
organization and goodwill intact, including the present business relationships
and goodwill with customers, suppliers and employees and others having business
dealings with Seller.
(f) Pay all undisputed costs, expenses, liabilities and obligations of
Seller in the ordinary course when due, regardless of whether any such items
are to be reimbursed by Buyer under this Agreement.
-15-
11.2 Approvals, Consents and Renewals. Seller and Buyer, if required,
shall obtain, in writing, all necessary governmental and third-party approvals
and consents required in order to authorize and approve this Agreement and the
sale of the Assets to Buyer. With respect to the automobile and truck leases
identified on Schedule 11.2(a) to this Agreement, at Buyer's reasonable
request, Seller will attempt to have any or all of such leases assigned to
Buyer. Obligations under any leases which are not so assigned will be retained
by Seller, and, in such cases, Buyer will either make timely payments directly
to the lessors or timely pay Seller, which will in turn make payments to the
lessors (including insurance payments in connection therewith).
11.3 List of Creditors. Seller shall provide Buyer with a complete
list of Seller's creditors, including amounts owed to each creditor, signed and
sworn to by an authorized officer of Seller, not later than the last day of the
month preceding the Closing. If the Closing Date is delayed and, in Buyer's
reasonable discretion, the list of Seller's creditors needs to be updated,
Seller will provide to Buyer such an updated list, prepared in accordance with
the immediately preceding sentence, not less than twenty (20) days prior to the
new date proposed by Buyer as the Closing Date.
11.4 Advice of Changes. Between the date of this Agreement and the
Closing Date, Seller shall promptly notify Buyer in writing of any fact which,
if existing or known at the date of this Agreement, would have been required to
be set forth in this Agreement or disclosed pursuant to this Agreement or which
would materially affect or change any of the information set forth in the
exhibits or schedules of this Agreement.
11.5 Notice of Litigation. Buyer, on the one hand, and Seller, on the
other hand, shall promptly notify the other in writing if either receives any
notice, or otherwise becomes aware, of any action or proceeding instituted or
threatening before any court or governmental agency by any third party to
restrain or prohibit, or obtain substantial damages in respect of, this
Agreement or the consummation of the transactions contemplated by this
Agreement.
11.6 Access to Properties and Records; Inspection. From the date of
this Agreement through the Closing Date, Buyer and its employees, counsel,
accountants and other representatives will be given full access during normal
business hours to all of the financial and operating data, books, tax returns,
contracts, commitments and records of Seller, including such access as is
needed to conduct a physical inspection of the Real Properties and the
Warehouse.
11.7 Other Actions. Buyer and Seller will take any and all such other
and further actions, consistent with this Agreement, as the other may
reasonably request.
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ARTICLE XII
Conditions Precedent To The Parties' Obligation To Close
--------------------------------------------------------
12.1 Buyer's Conditions Precedent. Buyer's obligations under this
Agreement are subject to the satisfaction at or before the Closing Date of each
of the following conditions, the fulfillment of any of which may be waived in
writing by Buyer:
(a) All terms, covenants and conditions of this Agreement to be
complied with or performed by Seller prior to or on the Closing Date will have
been fully complied with and performed by Seller in all material respects.
(b) All representations, warranties, disclosures and statements of
Seller contained in this Agreement and the other documents and statements
furnished to Buyer will be true and complete in all material respects as of the
date of this Agreement and the Closing Date. Any amendments to the exhibits and
schedules to this Agreement which are proposed to be delivered from and after
the date of this Agreement must be reasonably satisfactory to Buyer.
(c) Seller shall have furnished to Buyer an opinion of Seller's
counsel, dated as of the Closing Date, in form and in substance reasonably
satisfactory to Buyer and its counsel, to the effect that:
(1) Seller is a corporation duly organized and validly existing and in
good standing under the laws of this State of New York, with corporate
power and authority to enter into this Agreement and to transfer the Assets
as contemplated in this Agreement and to otherwise perform its obligations
under this Agreement.
(2) Seller has the power and authority to enter into the lease of the
Seller's Real Properties and to perform its obligations under such lease.
(3) This Agreement has been duly authorized, executed and delivered by
Seller and each constitutes the legal, valid and binding obligation of
Seller enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency or other similar laws affecting the enforcement
of creditors' rights generally and subject to general principles of equity.
(4) The execution, delivery and performance by Seller of its
obligations under this Agreement will not violate any provision of Seller's
corporate charter, By-Laws or applicable law.
-17-
Such opinion may expressly rely as to matters of fact upon Certificates
furnished by Seller and appropriate officers and directors of Seller and by
public officials.
(d) There will not have been any material adverse change in the
financial condition or the business of Seller, or in the condition of the
Seller's Real Properties.
(e) There will have been no material damage, from the date of the
execution of this Agreement through the Closing Date, to the Assets or Seller's
Real Properties.
12.2 Seller's Conditions Precedent. Seller's obligations under this
Agreement are subject to the satisfaction at, or prior to, the Closing Date of
the following conditions precedent (the fulfillment of any of which may be
waived in writing by Seller):
(a) All terms, covenants and conditions of this Agreement to be
complied with or performed by Buyer prior to or on the Closing Date will have
been fully complied with and performed by Buyer in all material respects,
including Buyer's timely taking of all actions and delivery of all documents
required to be taken and delivered by it under this Agreement.
(b) The representations, warranties, disclosures and statements of
Buyer contained in this Agreement and the other documents and statements
furnished to Seller shall be true and complete in all material respects as of
the date of this Agreement and on the Closing Date.
(c) Buyer will have furnished to Seller an opinion of Buyer's Counsel
dated the Closing Date, in form and substance reasonably satisfactory to Seller
and its Counsel, to the effect that:
(1) Buyer is a corporation duly organized and validly existing under
the laws of the State of Delaware, with corporate power and authority to
purchase the Assets and assume the liabilities and obligations under this
Agreement and otherwise perform its obligations under this Agreement.
(2) This Agreement has been duly authorized, executed and delivered by
Buyer and constitute legal, valid and binding obligations of Buyer,
enforceable in accordance with their terms, except as may be limited by
bankruptcy, insolvency or other similar laws affecting the enforcement of
creditors' rights generally and subject to general principles of equity.
(3) The execution, delivery and performance by Buyer of its
obligations under this Agreement will not violate any provision of Buyer's
Articles of Incorporation, By-Laws or applicable law.
-18-
Such opinion may expressly rely as to matters of fact upon Certificates
furnished by appropriate officers and directors of Buyer and by public
officials.
(d) Buyer and Seller shall have entered into the lease of Seller's
Real Properties and the sublease of the Warehouse.
12.3 Mutual Condition Precedent. Unless waived in writing by each
party, it will be a further condition to the consummation of this transaction
that no litigation will have been commenced or threatened to challenge the
right of any party to consummate the transactions contemplated under this
Agreement; except, however, that the foregoing shall not apply with respect to
any such litigation arising out of the sublease of the Warehouse.
ARTICLE XIII
------------
Default; Termination of Agreement
---------------------------------
13.1 Default. Buyer's, on the one hand, and Seller's, on the other
hand, obligations under this Agreement are of a special and unique character
and Buyer's or Seller's failure to perform its obligations will cause
irreparable injury to the other party, the amount of which would be extremely
difficult, if not impossible, to estimate or determine and which may not be
adequately compensable by monetary damages alone. Therefore, the injured party
will be entitled, as a matter of course, to an injunction, restraining order,
writ of mandamus or other equitable relief from the U.S. District Court,
Eastern District of New York, including specific performance, restraining any
violation or threatened violation of any term of this Agreement, or requiring
compliance with or performance of any obligation under this Agreement, by the
violating party or parties, or such other persons as the court may order.
Buyer's and Seller's rights under this Section 13.1 are cumulative and are in
addition to the rights and remedies otherwise available to them under Section
13.2 below and any other agreement or applicable law.
13.2 Termination. This Agreement may be terminated at any time before
the Closing as follows:
(a) At the election of Buyer, by notice to Seller at any time if any
of Buyer's conditions precedent to Closing, as specified in Sections 12.1 or
12.3 above, has not been satisfied as of the Closing Date or has at any time
become incapable of being satisfied by the Closing Date.
(b) At the election of Seller, by notice to Buyer, if any of Seller's
conditions precedent to Closing, as specified in Sections 12.2 or 12.3 above,
has not been satisfied as of the Closing Date or has at any time become
incapable of being satisfied by the Closing Date.
-19-
(c) If this Agreement terminates in accordance with this Section 13.2,
the Seventy-Five Thousand ($75,000.00) Dollar payment made by Buyer
concurrently herewith shall be returned to Buyer and this Agreement will be
null and void and have no further force or effect; provided, however, that in
the event Seller terminates this Agreement pursuant to Section 13.2(b), said
Seventy-Five Thousand ($75,000.00) Dollar payment shall be released by the
Escrow Agent and paid to Seller. The parties' rights under this Section 13.2
are cumulative and are in addition to the other rights and remedies available
to them under Section 13.1 above, or under applicable law.
ARTICLE XIV
-----------
Indemnification
---------------
14.1 Indemnification by Seller. Seller will indemnify and hold Buyer
harmless with respect to any damages, liabilities, claims, losses and expenses
(including reasonable legal fees, costs and court costs) which may be incurred
by Buyer arising out of:
(a) Any breach by Seller of any of its representations, warranties,
covenants or agreements made in this Agreement or in any document or statement
furnished by it to Buyer or in the enforcement of the foregoing indemnity.
(b) Any attempt (regardless of whether successful and regardless of
whether litigation is commenced) by any person or entity to cause or require
Buyer to pay or discharge any actual or claimed debt, obligation, liability or
commitment of or associated with Seller which is not expressly assumed by Buyer
under this Agreement, including all Excluded Liabilities.
(c) Any action, suit, proceeding, investigation, assessment or
judgment relating to any of the matters indemnified against in this Section
14.1, including reasonable fees and disbursements of counsel (whether prior to
or at trial or in appellate proceedings).
14.2 Indemnification by Buyer. Buyer will indemnify and hold Seller
harmless with respect to any and all damages, liabilities, claims, losses and
expenses (including reasonable legal fees, costs and court costs) which may be
incurred by Seller arising out of:
(a) Any breach by Buyer of any of Buyer's representations, warranties,
covenants or agreements made in this Agreement or in any document or statement
furnished by it to Seller or in the enforcement of the foregoing indemnity.
(b) Any attempt (regardless of whether successful and regardless of
whether litigation is commenced) by any person or entity to cause or require
Seller to pay or discharge any debt,
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obligation, liability or commitment expressly assumed by Buyer under this
Agreement including all Assumed Liabilities.
(c) Any action, suit, proceeding, assessment or judgment relating to
any of the matters indemnified against in this Section 14.2, including
reasonable fees and disbursements of counsel (whether prior to or at trial or
in appellate proceedings).
14.3 Claims for Indemnification.
(a) Whenever any claim is made for indemnification under Sections 14.1
or 14.2 or Section 5.3, the person claiming such indemnification (the
"Indemnified Party") will promptly notify in writing the party against whom
indemnification is sought (the "Indemnitor"), by certified or registered U.S.
Mail, postage prepaid, after the Indemnified Party has actual knowledge of any
event which might give rise to a claim for indemnification under this
Agreement; provided that if the Indemnified Party receives a complaint,
petition or any other pleading in connection with a claim which requires the
filing of an answer or other responsive pleading, it will furnish the
Indemnitor with a copy of such pleading as soon as possible after receipt.
(b) The failure by the Indemnified Party to give notice of a claim as
required in Section 14.3(a) above or a delay in giving such notice will not
affect the validity or amount of such claim and the indemnification obligations
of the Indemnitor will remain in effect as to such claim, except to the extent
that the Indemnitor has been prejudiced or adversely affected thereby.
14.4 Notice of and Defense Against Claims of Third Parties. Promptly
after receipt by the Indemnified Party of a claim or demand or notice of the
commencement of any action by a third party which would give rise to the right
of indemnification under Sections 14.1, 14.2 or 5.3, the Indemnified Party
shall, if a claim in respect thereof is to be made against the Indemnitor, send
notice of the commencement thereof to the Indemnitor. In case any such action
shall be brought against the Indemnified Party and it shall notify the
Indemnitor of the commencement thereof, the Indemnitor shall be entitled to
participate in, and, to the extent that it shall wish to assume the defense
thereof, and after notice from the Indemnitor to such Indemnified Party of its
election so to assume the defense thereof, the Indemnitor shall not be liable
to the Indemnified Party under such action for any legal or other expenses
subsequently incurred by the Indemnified Party after the date such notice is
given to such Indemnified Party in connection with the defense thereof. The
Indemnitor shall not be liable for any settlement of any claim or action
pursuant to this Article XIV effected by or on behalf of the Indemnified Party
without its prior written consent.
14.5 Limitations on Indemnification. Seller will not be obligated to
indemnify Buyer under Section 14.1 above unless and until the aggregate amount
of all claims to which the Buyer is
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entitled to indemnification under such Section exceeds Twenty-Five Thousand
($25,000.00) Dollars; provided, however, that such limitation shall not apply
to claims arising under Section 2.1 (as to Excluded Liabilities), 9.1, 15.2 or
15.4. Neither Buyer nor Seller shall be liable for any claim which is brought
after expiration of the three-year (3) period.
ARTICLE XV
----------
Other Covenants
---------------
15.1 Further Assurances. If at any time after the execution of this
Agreement, Buyer or Seller reasonably considers or is advised that any further
actions, assignments or assurances on its part are necessary or desirable to
carry out the intent and accomplish the purposes of this Agreement, it will
take such actions, execute and make all such instruments and do all things
necessary or appropriate to carry out the intent and accomplish the purposes of
this Agreement, or otherwise consummate the transactions contemplated by this
Agreement.
15.2 Employees.
(a) If Buyer shall hire any of Seller's employees, Buyer will assume
no past or future obligations of Seller to such employees, including any
obligations to pay severance pay, vacation pay or other benefits to such
employees as of or preceding the Closing Date; and such obligations will be and
remain obligations of Seller, as will any similar obligations to any employees
of Seller who are not hired by Buyer. Buyer shall not refuse to hire employees
covered by the union contracts referred to in Schedule 7.7(a)(2) except as
provided by their respective terms.
(b) The Non-Union employees of Seller who shall be hired by Buyer
shall, to the extent possible, receive uninterrupted fringe benefits, taking
into account the differences between the employee benefits conferred by Seller
and those conferred by Buyer. If a switchover is required to another plan such
as a health and/or hospital plan, any waiting period required for eligibility
shall be waived. Vacation pay which shall be payable to Seller's employees as
of the Closing Date shall be paid to Buyer and Buyer shall pay the same to the
employee. To the extent of any such payment of vacation pay made for the
respective employee, Buyer shall hold Seller harmless from and indemnify Seller
against any claim by the respective employee for vacation pay which may be made
against Seller. Such employees shall be entitled to the same length of vacation
as they received while employed by Seller, which does not exceed three (3)
weeks.
(c) Buyer will assume all of Seller's obligations under both union
contracts referred to in Schedule 7.7(a)(2) (to the extent such obligations are
set forth in the actual written contracts delivered to Buyer), arising from and
after the Closing Date with respect to employees hired by Buyer and Seller will
pay
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to its employees or their respective union all amounts payable under such
contracts as of the Closing Date, including, without limitation, accrued
vacation pay.
15.3 Receipt of Mail. From and after the Closing Date, each party will
have the sole and exclusive right to receipt of all mail addressed to it and
each party will promptly deliver to the other party any such mail received by
it on or after the Closing Date.
15.4 Payment of Creditors. Seller will maintain sufficient assets to
pay, and will pay, all known undisputed amounts owing its creditors when due
(other than in respect of obligations or liabilities assumed by Buyer under
this Agreement).
15.5 Books and Records. Buyer shall preserve the books and records of
Seller delivered to Buyer for a period of five (5) years after the Closing
Date, or the applicable statute of limitations, if longer. Buyer shall not
cause or permit their destruction or disposal without first offering to
surrender such books and records to Seller. Where there is a legitimate
purpose, including without limitation a Third-Party Claim, or an audit or
notice of deficiency or inquiry of Seller by any taxing authority having
jurisdiction, Buyer shall allow Seller and its representatives access to such
books and records relating to the business of Seller during regular business
hours on reasonable notice and shall permit Seller or its representatives to
make photocopies of any portion or portions of said books and records.
ARTICLE XVI
-----------
Non-Competitive Agreements
--------------------------
16.1 Non-Competition. In order to induce Buyer to enter into this
Agreement and to consummate the transactions contemplated hereby, each of
Seller and L. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), Seller's President and the owner of six
and one-third (6.33%) per cent of the issued and outstanding capital stock of
Seller, hereby covenants and agrees that, for a period of three (3) years
following the Closing, neither it nor any of its affiliates nor ▇▇▇▇▇▇ shall,
directly or indirectly, as a partner, shareholder, employee, officer, director,
manager, broker, agent, associate or otherwise, sell, manufacture or distribute
from or within a radius of three hundred (300) miles of Seller's Real
Properties, any products that compete directly with the products sold,
manufactured or distributed by Seller as of the Closing Date. Nothing in this
Section 16.1 contained shall prohibit Seller or ▇▇▇▇▇▇ from owning one (1%)
percent or less of the securities of a publicly-held company which sells such
products.
16.2 Remedy. Seller and ▇▇▇▇▇▇ acknowledge that Buyer would be
irreparably harmed by any breach of this Section 16.1, and that there would be
no adequate remedy at law or in damages to compensate Buyer for any such
breach.
-23-
ARTICLE XVII
------------
Miscellaneous
-------------
17.1 Successors and Assigns. This Agreement shall bind and enure to
the benefit of the parties and their respective successors and assigns;
provided, however, that Buyer shall not assign its rights hereunder without
Seller's written consent, except to a wholly-owned subsidiary of or other
entity under common control with Buyer, in which case Buyer shall guarantee the
performance by such subsidiary or other entity of Buyer's obligations under
this Agreement and under the lease of Seller's Real Properties, if applicable.
No such assignment shall relieve Buyer of its obligations under this Agreement.
17.2 Notices. Any notice, consent, approval, election, or other
communication required or permitted to be given under this Agreement shall be
effective only if in writing and sent by certified or registered mail, return
receipt requested, postage prepaid, as follows:
(a) To Buyer: The ▇▇▇▇▇ Group, Inc.
c/o ▇▇▇▇▇▇ ▇▇▇▇▇
Executive Vice President
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(b) To Seller: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Co., Inc.
c/o L. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
With a copy to: Steckler, Gutman, ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇▇, Esqs.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Such notices shall count from the date of receipt thereof.
Any of the above addresses may be changed upon notice sent to the
other addressees by certified or registered mail, return receipt requested,
postage prepaid, and shall become effective ten (10) days thereafter.
17.3 No Waiver. No waiver of any breach of any provision of this
Agreement shall be deemed a waiver of any preceding or succeeding breach of
such provision or of any other provision of this Agreement. No extension of
time for performance
-24-
of any obligations or acts shall be deemed an extension of the time for
performance of any other obligations or acts.
17.4 Paragraph Headings. The paragraph headings herein have been
inserted for convenience of reference only and shall in no way be deemed to
modify or restrict any of the terms or provisions hereof.
17.5 Severability. The provisions of this Agreement will be deemed
severable, and if any provision or part of this Agreement is held illegal, void
or invalid under applicable law, such provision or part may be changed to the
extent reasonably necessary to make the provision or part, as so changed,
legal, valid and binding. If any provision of this Agreement is held illegal,
void or invalid in its entirety, the remaining provisions of this Agreement
shall not in any way be affected or impaired but shall remain binding in
accordance with their terms.
17.6 Entire Agreement; Amendment. This Agreement and the schedules and
the exhibits attached to this Agreement contain the entire agreement of the
parties with respect to the purchase and sale of the Assets and the other
transactions contemplated in this Agreement and no representations heretofore
or hereafter made by either party shall have any force or effect unless set
forth in this Agreement. This Agreement may be amended or modified only by an
instrument in writing, duly executed by Buyer and Seller.
17.7 Counterparts. This Agreement may be executed in counterparts,
which together will be deemed an original of this Agreement.
17.8 Applicable Law. This Agreement will be construed in accordance
with and governed by the laws of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇ & CO., INC.
By: /s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
L. ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
THE ▇▇▇▇▇ GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, Executive
Vice President
-25-
Agreed to this 13th day of
October, 1995 by
L. ▇▇▇▇▇▇ ▇▇▇▇▇▇ as to
ARTICLE XVI.
/s/ L. ▇▇▇▇▇▇ ▇▇▇▇▇▇
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L. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Agreed to this 13th day of
October, 1995 by
STECKLER, GUTMAN, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
as Escrow Agent:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Partner
-26-
ABC WITH ▇▇▇▇▇
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Schedule 1.1(e) Trademarks, etc.
Exhibit 4.1(e) Promissory Note
Exhibit 5.2 Lease
Landlord's Waiver
Exhibit 5.3 Sublease
Exhibit 6.2(a) ▇▇▇▇ of Sale
Schedule 7.3(b) Machine Not in Operating Condition
Schedule 7.3(c) Leases of Personal Property
Schedule 7.4(b) Litigation
Schedule 7.5 Accounts Receivable
Schedule 7.6 Real Property Owned and Leased, Personal
Property Leased, Agreements and Arrangements,
Service Contracts
Schedule 7.7(a)(1) Employee Benefits
Schedule 7.7(a)(2) Union Contracts
Schedule 7.7(b) Non-Union Employee Benefits, Including
Pension, Insurance Plans, etc.
Schedule 7.7(c) Loans to Employees, etc.
Schedule 7.8(a) Permits, Licenses, etc.
Schedule 7.8(c) Underground Tank
Schedule 7.9 Gross Sales
Schedule 7.12 Tax Extensions
Schedule 7.13 Adverse Changes, etc.
Schedule 7.14 List of Creditors
Schedule 11.2(a) Automobile and Truck Leases