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EXHIBIT 2(b)
STOCK PURCHASE AGREEMENT
by and among
HEKS Corporation
and
▇▇▇▇▇▇-Field Health Products, Inc.,
Lumex/Basic American Holdings, Inc.
relating to the capital stock of
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ Tanners,Inc.
Kroy Tanning Company, Incorporated
and
Seagrave Leather Corporation
Dated as of
January 27, 1998
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is made as of this 27th day of January,
1998, by and among HEKS CORPORATION, a Maine corporation (the "Purchaser"), on
the one hand, and ▇▇▇▇▇▇-FIELD HEALTH PRODUCTS, INC., a Delaware corporation
("GFHP"), LUMEX/BASIC AMERICAN HOLDINGS, INC., a Delaware corporation ("Lumex")
(GFHP and Lumex collectively, the "Seller"), on the other hand; and relating to
the purchase and sale of all the issued and outstanding capital stock of
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇ TANNERS, INC., a Delaware corporation ("HEC"), KROY TANNING
COMPANY, INCORPORATED, a Delaware corporation ("Kroy") and SEAGRAVE LEATHER
CORPORATION, a Maine corporation ("Seagrave") (HEC, Kroy, and Seagrave
collectively, the "Company").
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Lumex owns all of the issued and outstanding shares of stock of the
Company, which in turn owns certain assets and real estate formerly used for the
processing and manufacturing of leather and related products. The Seller is
willing to sell to the Purchaser, and the Purchaser is willing to purchase from
the Seller, upon the terms and conditions herein set forth, the Stock, as
hereafter defined. Therefore, in consideration of the premises and the mutual
benefits to be derived from this Agreement, the parties hereto, intending
legally to be bound, hereby agree as follows:
ARTICLE I
PURCHASE AND SALE OF STOCK
1.1 Purchase and Sale. The Seller hereby sells, transfers, conveys,
assigns and delivers to the Purchaser, and the Purchaser hereby purchases from
the Seller, all of the issued and outstanding shares of common stock of HEC
(par value $1.00), Kroy (par value $1.00), and Seagrave (par value $1.00)
(collectively, the "Stock"), by delivery to the Purchaser of certificates
representing the Stock, duly enclosed in blank or accompanied by duly executed
stock powers in blank.
ARTICLE II
CONSIDERATION
2.1 Consideration. The consideration to be paid by the Purchaser pursuant
to this Agreement shall be ONE DOLLAR ($1.00) per share of Stock, for a total
purchase price of ONE THOUSAND FOUR HUNDRED DOLLARS ($1,400.00) (the "Purchase
Price"), to be payable in cash or equivalent immediately available funds at the
Closing, as hereafter defined. The
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parties hereto acknowledge and agree that the Purchase Price is good and
sufficient consideration for the Stock.
ARTICLE III
CLOSING
3.1 Closing Time and Place. The closing of the transactions contemplated
by this Agreement (the "Closing") is taking place concurrently with the
execution and delivery of this Agreement at the offices of Verrill & ▇▇▇▇, One
Portland Square, Portland, Maine, at 9:30 a.m. on January 27, 1998 (the "Closing
Date"). At the Closing, the Seller is transferring good and sufficient
instruments of transfer and assignment as are effective to vest in the Purchaser
good and valid title to the Stock. Simultaneously, Purchaser is paying the
Purchase Price in accordance with Section 2.1.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of the Seller. As a material
inducement to the Purchaser to enter into and perform its obligations pursuant
to this Agreement, the Seller represents and warrants as of the date hereof as
follows:
4.1.1 Organization and Good Standing of the Company. The Company is
a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, in the case of HEC and Kroy, and
Maine, in the case of Seagrave, and the Company is qualified as a foreign
corporation in the State of Maine, in the case of HEC and Kroy, and the
Company has corporate power to carry on its business as it is now being
conducted.
4.1.2 Ownership of Shares; Ownership Interests. Lumex owns all of
the issued and outstanding shares of capital stock of the Company and all
other equity securities of the Company, if any, and there are no
outstanding securities or options, warrants or other rights to acquire
any securities of the Company. All of the issued and outstanding shares
of capital stock of the Company have been validly issued, fully paid and
are nonassessable, and Lumex has full authority to vote such shares on
all matters, if any, relating to the transactions contemplated by this
Agreement. Set forth on Schedule 4.1.2 is a list of all capital stock,
securities or other ownership interests owned or held by the Company in
any subsidiary or other entity.
4.1.3 Authorization. The execution and delivery by the Seller of
this Agreement, and the consummation by the Seller of the transactions
contemplated hereby and the
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performance of all of its obligations hereunder, have been duly
authorized by all necessary action on the part of its Board of Directors,
and this Agreement, when executed and delivered by the Seller, will be
the valid and binding obligation of the Seller, enforceable in accordance
with its terms except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
the rights of creditors generally and except as the enforceability of
this Agreement is subject to the application of general principles of
equity (regardless of whether considered in a proceeding in equity or at
law), including without limitation (i) the possible unavailability of
specific performance, injunctive relief or any other equitable remedy and
(ii) concepts of materiality, reasonableness, good faith and fair
dealing.
4.1.4 Title to Stock. Lumex has valid, marketable title to the
Stock, in its own name, free and clear of all claims, liens, charges,
encumbrances, and claimed interests of any kind of any other person or
persons whatsoever, and has full right, power and authority to sell,
transfer, assign and deliver the Stock to the Purchaser hereunder,
without any required consent or approval by any other party.
4.1.5 Non-Violation. The execution and delivery of this Agreement
by the Seller, and the consummation by it of the transactions
contemplated hereby, does not and will not violate the provisions of (i)
any applicable laws of the United States, the State of Delaware, or the
State of Maine, (ii) the Seller's Certificate of Incorporation, HEC and
Kroy's Certificate of Incorporation, and Seagrave's Articles of
Incorporation or the Seller's or the Company's Bylaws, or (iii) any
order, judgment or decree or any other restriction of any kind or
character applicable to the Seller or the Company. No default or breach
will occur by virtue of the consummation of the transactions contemplated
hereunder in any material respect under any contract, agreement, deed of
trust, indenture or other instrument applicable to the Seller, and no
rights of the Seller under any such existing contract, agreement,
indenture, deed of trust, or other instrument will be limited, impaired
or extinguished by virtue of the consummation of the transactions
contemplated hereunder, nor will the consummation of the transactions
contemplated hereunder result in the creation of any lien, charge or
encumbrance upon the Stock.
4.1.6 Tax Matters. Except as set forth on Schedule 4.1.6, the
Seller has paid all taxes, interest and penalties due or assessed and
owed by it relating to the Stock, and has duly filed all federal, state,
local or other tax returns which are required to be filed. Except as set
forth on Schedule 4.1.6, no proceedings or other actions which are still
pending or open have been taken for the assessment or collection of
additional taxes of any kind from the Seller or, to the Seller's
knowledge, the Company, no statute of limitations in respect of any taxes
has been waived or extended by or on behalf of the Seller or the Company,
and no examination by the federal or any state taxing authorities or any
other taxing authority is currently pending. Present taxes which the
Seller or, to the Seller's knowledge, the Company is required by law to
withhold or collect have been withheld or collected and have been paid
over to the proper governmental authorities or are properly held by the
Company for such payment and will be paid when due.
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4.1.8 Litigation. Except as disclosed on Schedule 4.1.8, no
litigation, proceeding, investigation or claim is pending or, to the
Seller's knowledge, threatened against or relating to the Stock nor does
the Seller know of any basis for any such litigation, proceeding,
investigation or claim. The Seller is not involved in and has not been
served or put on notice of any litigation, claim, proceeding or
governmental investigation pending or, to Seller's knowledge, threatened
against or relating to the Company that will adversely affect the
Seller's ability to consummate the transactions contemplated by this
Agreement. To the Seller's knowledge, no investigation of the Seller has
been conducted or is intended, nor remedial action taken or intended
against the Seller, by any governmental authority, which would affect its
ability to consummate the transactions contemplated by this Agreement. As
used in this Agreement, the phrase "to the Seller's knowledge" shall mean
knowledge of matters about which ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
know or had reason to know and shall not include the knowledge of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ and the other executive officers of the Company.
4.1.9 Brokers. Except as set forth in Schedule 4.1.9, neither the
Seller nor the Company has incurred any obligation to pay compensation or
commissions to any broker or other intermediary in connection with the
transactions contemplated hereby. The Seller will, independent of the
provisions of Article V, indemnify the Purchaser and hold the Purchaser
harmless without deduction or offset against payment of any such
compensation or commissions.
4.1.10 Disclosure. No representation or warranty by the Seller made
herein, or in any Exhibit or Schedule hereto, contains any untrue
statement of material fact, or omits to state a material fact necessary
to make the statements contained herein and therein, in light of the
circumstances under which they were made, not misleading.
4.2 Representations by the Purchaser. As a material inducement to the
Seller to enter into and perform its obligations pursuant to this Agreement, the
Purchaser represents and warrants, as of the date hereof and the Closing Date,
as follows:
4.2.1 Organization and Good Standing of the Purchaser. The
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Maine and has corporate power to
carry on its business as it is now being conducted and to enter into an
perform its obligations pursuant to this Agreement.
4.2.2 Authorization by the Purchaser. The execution and delivery by
the Purchaser of this Agreement, and the consummation by the Purchaser of
the transactions contemplated hereby, have been duly authorized by all
necessary action on the part of the Purchaser, and this Agreement, when
executed and delivered by the Purchaser, will be the valid and binding
obligation of the Purchaser, enforceable in accordance with its terms
except as enforcement may be subject to laws relating to bankruptcy,
insolvency and creditors' rights.
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4.2.3 Non-Violation. The execution and delivery of this Agreement
by the Purchaser and the consummation of the transactions contemplated
hereby, does not and will not violate the provisions of (i) any
applicable laws of the United States, the State of Maine, or of any other
state of jurisdiction in which the Purchaser does business, (ii) the
Purchaser's Articles of Incorporation or Bylaws, or (iii) any order,
judgment or decree or any other restriction of any kind or character
applicable to the Purchaser. No default or breach will, by virtue of the
consummation of the transactions contemplated hereunder, occur in any
material respect under any material contract, agreement, deed of trust,
indenture or other instrument applicable to the Purchaser.
4.2.4 Litigation. The Purchaser is not involved in and has not been
served or put on notice of any material litigation, proceeding or
governmental investigation pending or threatened against or relating to
the Purchaser that will adversely affect the Purchaser's ability to
consummate the transactions contemplated by this Agreement.
4.2.5 HSR Act. For purposes of section 7A of the ▇▇▇▇▇▇▇ Act, 15
U.S.C. Section 18a, and the rules and regulations thereunder, 16 C.F.R.
Section 801.1 et seq., (i) the Purchaser is not "controlled" by any other
entity and (ii) the Purchaser, including all entities which it
"controls," does not have "annual net sales" or "total assets" of $10
million or more, as determined pursuant to such act and the rules and
regulations promulgated thereunder.
4.2.6 Nature of Purchase; Accredited Investor. (a) The Purchaser is
acquiring the Stock for its own account for investment, not as a nominee
or agent, and not with a view to the resale or distribution of the Stock
or any part thereof, and the Purchaser has no present intention of
selling, granting any participation in, or otherwise distributing the
same. The Purchaser acknowledges that the sale of the Stock pursuant to
this Agreement will not be registered under the Securities Act or any
state securities or blue sky law, on the grounds that the offering and
sale of the Stock contemplated by this Agreement are exempt from
registration pursuant to exceptions available under such laws, and that
the Seller's reliance upon such exemptions is predicated upon the
Purchaser's representations set forth in this Agreement.
(b) The Purchaser is an "accredited investor" within the meaning of
Regulation D promulgated under the Securities Act.
4.2.7 Brokers. The Purchaser has incurred no obligation to pay
compensation or commissions to any broker or other intermediary in
connection with the consummation of the transactions contemplated hereby.
4.2.8 Disclosure. No representation or warranty by the Purchaser
herein contains or will contain any untrue statement of material fact, or
omits or will omit to state a material fact necessary to make the
statements contained herein, in light of the circumstances in which they
were made, not misleading.
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ARTICLE V
INDEMNIFICATION
5.1 Indemnification by the Seller. The Seller shall indemnify, defend,
and save and hold harmless the Purchaser from and against any damage, liability,
loss, expense or injury (including without limitation reasonable attorneys' fees
and costs and expenses incident to any claim, suit, action or proceeding)
suffered by the Purchaser in respect of any and all breaches of any
representation, warranty, or nonfulfillment of any covenant by the Seller
contained in this Agreement, including the Exhibits and Schedules hereto and any
certificate or other instrument furnished or to be furnished to the Purchaser by
or on behalf of the Seller or the Company.
5.2 Indemnification by the Purchaser. The Purchaser shall indemnify,
defend, and save and hold harmless the Seller from and against any damage,
liability, loss, expense or injury (including without limitation reasonable
attorneys' fees and costs and expenses incident to any claim, suit, action or
proceeding), suffered by the Seller in respect of any and all breaches of any
representation, warranty, or nonfulfillment of any covenant by the Purchaser
made or contained in this Agreement, including the Exhibits and Schedules hereto
and any certificate or other instrument furnished or to be furnished to the
Seller by or on behalf of the Purchaser.
5.3 Survival of Representations and Warranties; Limitations. The
representations, warranties and covenants set forth in this Agreement shall
survive the Closing. Notwithstanding any provision of law which may apply to
limit the right to bring an action for indemnification under this Article V, no
party shall assert any claim for indemnification hereunder later than June 30,
1999, except for claims relating to noncompliance with the covenants and
undertakings set forth in this Agreement or any document constituting a Schedule
or an Exhibit hereto, which may be asserted at any time subject to applicable
statutes in respect thereof.
5.4 Notice of Claims and Response. If the party seeking indemnification
hereunder (for purposes of this Article V, the "Indemnified Party") shall demand
indemnification hereunder against the other party (for purposes of this Article
V, the "Indemnifying Party"), such Indemnified Party shall notify the
Indemnifying Party of the facts and circumstances giving rise to such claim for
indemnification. The Indemnified Party shall afford to the Indemnifying Party
access to all records and information relating to such claim, facts and
circumstances (except those matters privileged under applicable state or federal
law or rules of evidence) reasonably necessary to permit the Indemnifying Party
to evaluate the merits of such claim or the accuracy of such facts and
circumstances. Within thirty (30) days after receipt of any such demand for
indemnification, the Indemnifying Party shall by notice to the Indemnified Party
acknowledge its obligation to indemnify the Indemnified Party in respect of such
claim, fact or circumstance, or reject the demanded indemnification. A failure
to respond to any such demand within said thirty day period shall be deemed to
be a rejection of the demand.
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5.5 Opportunity to Cure. Notwithstanding any rejection of a demand for
indemnification pursuant to Section 5.4, the Indemnifying Party shall be
entitled, within thirty (30) days after notice of any demand for
indemnification, at its sole cost and expense, to undertake to cure any
circumstances or pay or settle any claim which is the subject of said notice,
provided, however, that any indemnification hereunder with respect to such
claim, fact or circumstance shall continue to be available notwithstanding such
undertaking to cure.
5.6 Resolution of Dispute as to Indemnification. Any dispute relating to
indemnification may, at the election of any party, be resolved by an arbitration
to be held at Portland, Maine, and to be conducted in accordance with the rules
then in effect of the American Arbitration Association, except that the
arbitrators shall be appointed as follows: (a) within fifteen (15) days after
any rejection of a demand for indemnification, the parties jointly shall appoint
a single arbitrator whose resolution of the dispute shall be conclusive, or (b)
if the parties fail jointly to appoint a single arbitrator within said fifteen
day period, either the Indemnified Party or the Indemnifying Party may appoint
one arbitrator by notice to the other such party, and the other party shall name
a second arbitrator within fifteen (15) days after receipt of such notice,
whereupon the two arbitrators so named shall jointly select a third arbitrator
within fifteen (15) days after the date of appointment of the second arbitrator,
failing which the third arbitrator shall be appointed by the President of the
American Arbitration Association. In the event that any party entitled to name
the second arbitrator as set forth in this Section 5.6 fails to do so within the
time period provided herein, the arbitrator appointed by the other party shall
be the sole arbitrator. Any arbitrator or arbitrators shall promptly conduct an
arbitration and render a decision resolving the dispute, and the parties agree
to abide by the decision of any single arbitrator or by a decision of a majority
of any three arbitrators appointed as aforesaid. The costs and expenses of any
arbitrator shall be borne by the party appointing such arbitrator, except that
the costs and expenses of any arbitrator jointly named or appointed as a third
arbitrator shall be borne fifty percent by the Indemnified Party and fifty
percent by the Indemnifying Party.
5.7 Defense of Claims. Should any claims be made or suits or proceedings
be instituted which, if successfully prosecuted, would give rise to any
obligation to indemnify under this Article V, the control of the defense thereof
shall be vested in the Indemnifying Party, and the Indemnified Party shall be
entitled to participate in such defense. Notwithstanding the foregoing control
of the defense provisions, no settlement of any claim, suit or proceeding which
will result in liability pursuant to this Article V may be made without the
consent of the party bearing such liability, which consent will not unreasonably
be withheld.
5.8 Limitations on Liability. Notwithstanding the foregoing, no payments
in respect of any indemnification claim shall be required of any Indemnifying
Party (i) unless and until and then only to the extent that the total amount of
all indemnification claims payable by such Indemnifying Party has exceeded Two
Hundred Fifty Thousand Dollars ($250,000), and (ii) to the extent that the total
amount of all indemnification claims payable by such Indemnifying
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Party will exceed Two Million Dollars ($2,000,000.00), provided, however, the
limitations hereunder shall not apply to the parties' obligations set forth in
Sections 7.12, 7.13, 7.14, and 7.15.
5.9 Exclusive Remedy. The parties agree that, except for the
representations contained in Sections 4.1.2, 4.1.3, 4.1.4, 4.1.5, 4.1.9, 4.2.2,
4.2.3, and 4.2.7, their sole and exclusive remedy for breach of Article IV shall
be indemnification under this Article V. Except as otherwise provided in this
Agreement, no party shall have a separate cause of action under contract, tort
or otherwise except for a claim brought under, and subject to the limitations
of, this Article V.
ARTICLE VI
CLOSING DATE DELIVERIES AND ACTIONS
6.1 Deliveries and Actions of the Seller. Simultaneously with the
delivery of the Stock and the Purchase Price on the date hereof, Seller is
taking the following actions or delivering to Purchaser the following items:
6.1.1 Delivery of Certificates. (a) a certificate dated the
Closing Date and signed by the Secretary of the Seller as to the
adoption of resolutions on behalf of the Board of Directors necessary
to authorize the transactions contemplated by this Agreement, (b) a
certificate dated the Closing date and signed by the Secretary or
Clerk of Lumex and the Companies containing copies of Lumex's and the
Company's Certificate of Incorporation and Bylaws as then in effect,
(c) a certificate as to the legal existence and good standing of the
Company and a certificate issued by the Secretary of State of each
state in which the Company is qualified to transact business, if any,
as to the qualification and good standing of the Company in each such
state, (d) a certificate of tax clearance or similar certificate
issued by the appropriate taxing authorities of the States of Maine
and Delaware certifying that the Seller and the Company have paid all
taxes due and payable in respect of the Stock and or the Company (or
reasonably acceptable certification in lieu thereof if such official
certificates are unavailable at the Closing), and (e) a certificate
dated the Closing Date and signed by the Secretary of the Seller as
to (i) the incumbency of any officers executing on behalf of the
Seller, (ii) this Agreement and (iii) any document contemplated by
this Agreement.
6.1.2 Contribution of Debt. Lumex is contributing to the
capital of each of Kroy and Seagrave the indebtedness of Kroy and
owing to Lumex.
6.2 Deliveries and Actions of the Purchaser. Simultaneously
with the delivery of the Stock and the Purchase Price on the date
hereof, Purchaser is taking the following actions or delivering to
Seller the following items:
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6.2.1 Delivery of Certificates. (a) a certificate dated the Closing
Date and signed by the Clerk of the Purchaser as to the adoption of
resolutions on behalf of the Purchaser necessary to authorize the
transactions contemplated by this Agreement, (b) a certificate issued by
the Secretary of State of Maine as to the legal existence and good
standing of the Purchaser, and (c) a certificate dated the Closing Date
and signed by the Clerk of the Purchaser as to the incumbency of any
officers executing this Agreement or any document contemplated by this
Agreement on behalf of the Purchaser.
ARTICLE VII
GENERAL
7.1 Confidentiality. Each party to this Agreement acknowledges that it
has received or may have received information from other parties of a
confidential or proprietary nature and, except for such information to be used
by the Purchaser in the conduct of the Business after the Closing, each party
agrees to maintain such information as confidential. The foregoing does not
apply to the disclosure by the parties of the existence of this Agreement and
the transaction contemplated hereunder.
7.2 Further Assurances. (a) The parties hereto agree to execute and
deliver, at any time after the Closing Date, any and all papers and documents
which may be reasonably necessary to carry out the terms of this Agreement.
(b) Following the Closing, each party shall afford the other party,
its counsel, accountants, and professional advisors, during normal business
hours, reasonable access to the properties, books, records and other data
relating to the Company in its possession with respect to periods prior to the
Closing and the right to make copies and extracts therefrom, to the extent that
such access may be reasonably required by the requesting party in connection
with (i) the preparation of tax returns, (ii) the determination or enforcement
of rights and obligations under this Agreement, (iii) compliance with the
requirements of any governmental or regulatory authority, (iv) the determination
or enforcement of the rights and obligations of any party to this Agreement, (v)
in connection with any actual or threatened litigation or proceeding, or (vi)
other reasonable business purposes.
7.3 Entire Agreement. The Exhibits and Schedules annexed hereto and
delivered concurrently herewith shall be deemed to be incorporated into and made
part of this Agreement. This Agreement, including said Exhibits and Schedules,
contains the entire agreement between the parties hereto and there are no
agreements, representations, or warranties which are not set forth herein. This
Agreement may not be amended or revised except by a writing signed by all
parties hereto, and no waiver hereunder shall be effective unless in writing.
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7.4 Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns; provided, however, except as provided below, this Agreement and all
rights hereunder may not be assigned except by written consent of all parties
hereto. The foregoing notwithstanding, the Purchaser shall be entitled to assign
all or any portion of its rights and/or obligations hereunder to a wholly-owned
subsidiary of the Purchaser upon written notice thereof to the Seller.
7.5 Separate Counterparts. This Agreement may be executed in several
identical counterparts, each of which shall be deemed an original, but all of
which together shall constitute but one and the same instrument.
7.6 Transactional Costs. Each party to this Agreement shall be
responsible for its own costs for any legal, accounting and other consulting
services, if any, attendant to the transactions contemplated by this Agreement.
7.7 Notices. All notices hereunder, to be effective, shall be in writing
and shall be delivered by hand or by certified mail, postage and fees prepaid,
or via facsimile transmission to the party to be notified as follows:
(i) If to the Purchaser, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
c/o Irving Tanning Company
▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No., (▇▇▇)▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Verrill & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No., (▇▇▇)▇▇▇-▇▇▇▇
(ii) If to the Seller, to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Vice President and General Counsel
▇▇▇▇▇▇-Field Health Products, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No., (▇▇▇)▇▇▇-▇▇▇▇
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with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No., (▇▇▇)▇▇▇-▇▇▇▇
unless and until notice of another or different address or facsimile number
shall be given as provided herein. Notice shall be deemed to be given and
received when delivered by hand or by courier service or, in the case of notice
sent by certified mail, three (3) business days after deposited with the
Canadian or the United States Postal Service, whichever shall apply.
7.8 Severability. The provisions of this Agreement are severable,
and the invalidity of any provision shall not affect the validity of any other
provision.
7.9 Index and Article Headings. The descriptive index and Article
headings in this Agreement have been inserted solely for convenience of
reference, and shall not be deemed to be a part of this Agreement.
7.10 Publicity. After the Closing, the parties shall be entitled to
make such public statements as each deems appropriate with regard to the
transactions contemplated by this Agreement.
7.11 Governing Law. The execution, interpretation, and performance
of this Agreement shall be governed by the laws in effect in the State of New
York.
7.12 Seller Taxes. The Seller shall be liable for, and shall hold
the Purchaser and the Company harmless from and against, any and all Taxes due
or payable by the Company for any taxable year or tax period ending on or before
the Closing Date. Taxes for which the Seller shall be liable and hold the
Purchaser and the Company harmless under the preceding sentence shall include,
without limitation, any liability for Taxes that arises because the Company
ceases on the Closing Date to be a member of a group filing consolidated returns
of which it had been a member and any and all Taxes due or payable by the
Company or by the Purchaser resulting from or arising out of the transactions
contemplated by this Agreement.
7.13 Purchaser Taxes. The Purchaser and the Company shall be liable
for, and shall hold the Seller harmless from and against, any and all Taxes due
or payable by the Company or by the Seller with respect to the Company for any
taxable year or tax period beginning after the Closing Date.
7.14 Liquidation of Company Assets. The Purchaser covenants, with
regard to the assets of the Company (all of which are listed on Schedule 7.14
attached hereto) (the
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"Assets"), that the Purchaser shall liquidate the Assets in an orderly manner as
it determines in its reasonable discretion, and shall expend the proceeds of
such liquidation, net of expenses associated therewith (and other reasonable
expenses), to discharge any and all environmental remediation costs and
expenses. As soon as practicable following the Closing, the Purchaser shall
contract with outside consultants to discharge the Company's environmental
liabilities in a commercially reasonable manner.
7.1.15 Irving Tanning Lease. The Purchaser or the appropriate
subsidiary of the Purchaser (the "Subsidiary") shall enter into a lease with
Irving Tanning Company substantially in the form attached hereto as Exhibit 7.15
(the "Lease"). The Purchaser further covenants and agrees that it will not
terminate, modify any material terms of, nor assign or permit assignment of, the
Lease by either party without the prior written consent of the Seller. The
Purchaser shall expend, or cause the Subsidiary to expend, the rents received
thereunder, net of expenses associated therewith (and other reasonable
expenses), to discharge any and all environmental remediation costs and
expenses.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representative as an instrument under seal
as of the day and year first above written.
WITNESS: SELLER:
▇▇▇▇▇▇-FIELD HEALTH PRODUCTS,
INC.
____________________________ By: ______________________________
Its: ______________________________
LUMEX/BASIC AMERICAN
HOLDINGS, INC.
____________________________ By:________________________________
Its:_______________________________
PURCHASER:
HEKS CORPORATION
____________________________ By: ______________________________
Its: ______________________________
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