ACQUISITION AGREEMENT
Acquisition agreement made this 23rd day of December, 1998 among:
CPM Associates Holding Corp.
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▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
("Buyer")
and
Contracting, Planning, Management, Associates, Inc.
D/b/a CPM Associates, Inc.
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▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
a New Hampshire corporation
(the "Company")
and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Married individuals
("Seller")
WHEREAS;
A. Buyer, directly and through one or more subsidiaries, intends to engage in
the Furniture and Fixture business.
B. The parties hereto deem it to be in the best interest of each of them that
Buyer purchase 80 percent of the issued and outstanding capital stock of the
Company, an S Corporation, and generally succeed to the business of the Company,
all pursuant to such terms, provisions and conditions as the parties hereto
shall agree.
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NOW, THEREFORE, WITNESSETH, that for and in consideration of the premises and of
the mutual promises and covenants hereinafter set forth, the parties hereto
agree as follows:
I. CERTAIN DEFINITIONS
As used in this agreement, the term:
A. "Environmental, Health and Safety Laws" means, collectively, the
Comprehensive Environmental Response, Compensation and Liability act, 42 USC
Section 9601 et. seq.; Emergency Planning and Community Right to Know Act, 42,
USC 11001 et.seq.; the Resource Conservation and Recovery Act, 42 USC Section
691 et. seq.; the Federal Water Pollution Act, 33 USC Section 1251, et. seq.;
the Safe Drinking Water Act, 42 USC Section 330(f) et. seq.; the Toxic Substance
Control Act, 15 USC Section 7401 et. seq.; the Occupational Safety and Health
Act, 29 USC Section 651, et. seq.; 42 U.S.C. Section 7401 et. seq. Each as
amended together with the regulations promulgated in connection with the above
statutes and those pertaining to asbestos including 40 CFR part 61 subpart M and
29 CFR 1910.1001 and 1926.58; ▇.▇. ▇▇▇ ▇▇▇-▇, 125-I, 146-A, 146-C, 147, 147-A,
147-B, 149-M, 482-A, 485, 485-A, 485-C; including all regulations thereunder.
B. "Knowledge" (including derivatives, e.g. "Know", etc.) means actual
knowledge, including that knowledge which would result from a reasonable
investigation following actual knowledge of any underlying facts or
circumstances relating thereto, but nothing herein shall obligate a Party to
undertake any special investigation in conjunction with the transaction
contemplated by this
Agreement.
C. "Liability" means any liability (whether known or unknown, whether asserted
or unasserted, whether absolute or contingent, whether accrued or unaccrued,
whether liquidated or unliquidated, and whether due or to become due), including
any liability for Taxes and including Loans.
II. PURCHASE AND PAYMENT
1. Purchase and Sale of Stock.
A. Buyer agrees to purchase from the Seller and Seller agrees to sell, assign,
transfer and deliver to Buyer 80 percent of the issued and outstanding shares of
stock of the company owned by Seller as described in Schedule A annexed hereto
and made a part of (collectively, the "Stock").
B. The purchase and payment for the Stock by Buyer shall take place as the time
and in the manner hereinafter provided, and the sale, assignment, transfer and
delivery of the Stock by the Seller, shall take place on the Closing Date at the
Closing as those terms are hereinafter defined, subject tot the fulfillment of
the conditions hereinafter provided.
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III. REPRESENTATION AND WARRANTIES OF BUYER.
Buyer hereby represents and warrants that (I) Buyer is a duly organized and
validly existing corporation under the laws of the State of Nevada, (ii) the
execution, delivery and performance of this Agreement by the Buyer has been duly
authorized by all necessary corporate action, (iii) this Agreement is a valid
and legally binding obligation of the Buyer enforceable in accordance with the
terms hereof, (iv) no governmental authorization, approval, order, license,
permit, franchise or consent and no registration or fling with any governmental
authority is required in connection with the execution, delivery or performance
of this Agreement by the Buyer, (v) the Buyer acknowledges that the Company w8ll
lose its status an as S corporation as a result of the closing of the
transaction contemplated by this Agreement (the "Transaction"), (vi) the
business and financial condition of the company has deteriorated since the date
of the internal Financial Statements, as such term is defined herein, and that,
(vii) after having performed such due diligence through its experienced and
sophisticated principals and such experts as they deemed necessary or
appropriate, are buying the lettered or restricted Stock for its investment
purposes and not with a view to redistribution on the terms set forth herein
IV. REPRESENTATIONS AND WARRANTIES OF SELLER AND THE COMPANY.
Seller and the Company hereby warrant and represent to Buyer that, as of the
date hereof except as otherwise stated herein and to the best of their Knowledge
as businesspersons, but not as accountants or attorneys, on such date, the
following statements are true and correct in all material respects, except for
such exemptions as are set forth in Schedule D annexed hereto and made a part
hereof, or elsewhere in this Agreement, except as to statements in Sections C.2
and C.6. which are made only by Seller who owns the Stock with respect to which
the statement is made.
1. Corporate Status.
The Company is (a) duly organized, validly existing and in good standing under
the laws of the State of New Hampshire; (b) has full corporate power to own all
of its properties and carry on its business as it is now being conducted; and
(c) is qualified to do business as a foreign corporation in each of the
jurisdictions in which it operates and the character of the properties owned by
the Company or could qualify to do business as a foreign corporation without
payment of any significant penalty should qualifications prove to be necessary,
or the nature of the business transacted by the company does not make
qualification necessary in any other jurisdiction or jurisdictions.
2. Authority to Sell.
Except for any limitations or restrictions imposed by federal and state statutes
regulating, restricting or governing the sale of unregistered securities (the
"Securities Regulation Statutes"), Seller has full right, power and authority
with the terms of this Agreement, and otherwise to consummate and close the
transaction provided for in this Agreement in the manner and upon the terms
herein specified herein.
3. Hazardous Substances.
Except for hazardous substances and wastes, as such terms are used in the
Environmental health and Safety laws generated, stored or used by the Company at
its business premises in the ordinary course of business, the Company has not
generated, stored or used hazardous substances or wastes on or within its
business premises to the best of the Company's and the Seller's Knowledge.
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4. Financial Statements.
On or about September __, 1998, the Company delivered to Buyer internal
financial statements dated as of August 31, 1998, comprising Schedule E - 1
hereto (the "Internal Financial Statements"), including the related notes and
explanatory notes, present fairly the financial position of the company as of
the date thereof and the results of its operations for the periods therein
indicated.
5. Period Since Date of Internal Financial Statements.
From the date of the Balance Sheet constituting a part of the Internal Financial
Statements included in the Company's Schedule E Financials, the Company has:
A. Not affirmatively waived, canceled or compromised any of its rights, debts
or claims of substantial value, except for its claims, demands and causes of
action against Fleet Bank-NH.
B. No issued any additional shares of stock, rights or options to purchase or
convert into such stock or other securities.
C. Not made any distribution to its shareholders, as shareholders, of any
assets, by way of dividends, purchase of shares or otherwise, except as
disclosed on Schedule D hereto.
D. Not mortgaged, pledged or granted a lien or encumbrance on any of its
properties or assets, except with respect to equipment purchased by the company
during such period.
E. Not sold or transferred any of its assets, tangible or intangible, except
motor vehicles and except inventory and other assets sold or disposed of in the
ordinary and usual course of business.
F. Not incurred any uninsured casualty losses and/or incurred or become liable
for any obligations or liabilities except the new, current liabilities incurred
in the ordinary and usual course of business, or made any extraordinary
expenditures other than for the purchase of motor vehicles and for additions and
betterments to existing plant, equipment and facilities.
G. Not increased the rate of compensation for any of its officers or directors
nor for any executive employees, except as may be in accord with pas practices
and in the usual and ordinary course of business of the Company
H. Not experienced any material adverse effect on its business, properties and
assets as the result of fire, explosion, flood, drought, windstorm, accident,
strike, embargo, confiscation of vital equipment, material or inventory,
cancellation of contracts by any domestic or foreign government, or any agency
thereof, or customer whose business with seller represents 5% or more of sellers
gross revenue, riot, activities of armed forces, or acts of God or the public
enemy although the Company has missed or been forced to notify customers or
re-scheduled delivery dates.
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6. Capital Structure.
The Company (a) had authority under its charter and applicable law to issue
capital stock of the type and having par values as set forth in Schedule A
hereto; (b) has no issued and outstanding shares of its capital stock whatever,
except as specifically indicated in Schedule A hereto, all of which such shares
are fully paid and non-assessable; (c) does not have authorized, issued or
outstanding any subscription, option, warrant, conversion or other rights to the
issuance or receipt of shares of its capital stock except as set forth in
Schedule A hereto other than pre-emptive rights appurtenant to the shares
identified in Schedule A; (d) has all voting rights vested exclusively in the
presently issued and outstanding capital stock; and (e) has outstanding no
bonds, debentures or other similar evidences of long-term indebtedness except as
specifically disclosed in its balance sheet as of August 31, 1998, (and related
notes thereto).
7. Ownership of Stock.
All of the issued and outstanding shares of capital stock of the company are
owned by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, individuals
married to each other. Seller owns beneficially and of record the number of
shares set forth in Schedule A hereto opposite Seller's name. Seller holds such
stock free and clear of all liens, claims, debts, encumbrances and assessments,
and any and all restrictions as to sale, assignment or transferability thereof,
except as otherwise disclosed in the Certificate for such Stock or herein.
Subject to compliance with the requirements of all federal and state statutes
and administrative regulations governing or restricting the issuance of
securities to the extent necessary. Seller has full right, power and authority
to sell, transfer and delivery all of the shares of Stock owned by said Seller
and the certificates therefor, sold hereunder, to Buyer in accordance wit the
terms of this Agreement, and otherwise to consummate and close the transaction
provided for in this Agreement in the manner and upon the terms herein
specified.
8. Title to Assets.
The company has good and marketable title to all of the assets which it owns, as
set forth on Schedule B hereto, which good and marketable title is free and
clear of all mortgages, pledges, liens, credit agreements, title retention
agreements (other than leases), security agreements, taxes, claims, debts and
other obligations and encumbrances except (a) as specifically set forth in
Schedule D, including the security interests held by Fleet Bank-NH, (b) if any,
of current taxes not yet due and payable and (c) such additional encumbrances or
imperfections of title, if any, which are not substantial in character, amount
or extent and which do not materially detract from the value, or materially
interfere wit the present or future intended use, of the properties subject
thereto or affected thereby, and which do not otherwise materially impair or
affect the business and operations of the Company. The Company hereby
acknowledges that it shall pay any and all present outstanding taxes owed to the
New Hampshire State Sales Tax Division and the Internal Revenue Service.
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9. Peaceable Possession of Assets.
The ownership and/or possession of all of the assets of the company have been
peaceably and undisturbed and the title thereto has never been disputed or
question to the knowledge of the company, nor does the Company know of any facts
by reason of which the possession or title thereof by the company might be
disturbed or questioned or by reason of which any claim to its assets might
arise or be set up adverse to the company. This section is predicated on the
acceptance of a proposed chapter 11 filing by the appropriate jurisdiction of
the Bankruptcy court of Hillsboro County, New Hampshire.
10. Regulatory Good Standing.
The Company has all material rights, certificates, authorities, permits,
licenses, franchises and other authorizations necessary to and has complied in
material respects with all laws applicable to, the conduct of its business in
the manner and in the areas in which such business is presently being conducted
and all such certificates, authorities, rights, permits, licenses, franchises
and authorizations are valid, in good standing, in full force and effect, under
no orders of suspension or restraints, and subject to no disciplinary,
probationary or other orders. To the best of its knowledge, the Company has
engaged in no activity whatever which would cause or lead to proceedings
involving revocation, suspension, restraint, disciplinary action or any other
action whereby any of such certificates, authorities, rights, permits, licenses,
franchises or authorizations, or any part thereof, might be canceled,
terminated, suspended, impaired, lost or otherwise adversely affected, and no
action or proceeding looking to or contemplating any of the foregoing is pending
or to the company's knowledge threatened, except as specifically set forth in
Schedule D annexed hereto and made a part hereof. The foregoing shall not be
deemed to constitute a warranty or representation that the company as not
heretofore or shall not hereafter suffer to be committed minor and unintentional
violations of any governmental regulations of such nature as not to cause either
suspension or revocation of the Company's operating authority.
11. Insurance.
The policies of insurance described in Schedule F are presently in full force
and effect.
12. Litigation.
Except as set forth in Schedule B or D hereof, the on-going IRS audit and the
pending litigation with Fleet, the Company is not a party to any pending or to
its Knowledge threatened suit, action, proceeding, prosecution or litigation
which might materially adversely affect the financial condition, business,
assets, properties, certificates, rights, authorities, franchises or
authorizations of the Company, or materially interfere therewith, nor to the
knowledge of the Company is there any threatened or pending governmental
investigation involving the company or any of its operations, including
inquires, citations or complains by any federal, state or local administration
or agency, which would materially adversely affect the financial condition,
business assets or properties of the company; and there are no outstanding,
existing or pending judgments, orders, decrees, rulings, directives,
stipulations or other mandates of any court or any public or quasi-public
agency, body or official which have been in any way violated as they relate to
or affect the Company or any of the Company's properties, businesses,
operations, affairs or activities.
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13. Defaults.
Except as set forth in Schedule B or D annexed hereto and made a part hereof,
there are no material defaults on the part of the company under any material
contract, lease, mortgage, pledge, credit agreement, title retention agreement,
security agreement, lien, encumbrance or any other commitment, contract,
agreement or undertaking to which the Company is a party.
14. Tax Returns.
Except as set forth in Schedule B or D annexed hereto and mad a part hereof or
otherwise disclosed herein, all returns for federal, state and other
governmental income taxes, surtaxes, excess profits taxes, franchise taxes,
sales and use taxes, real and personal property taxes and any and all other
taxes to which the Company, or its assets, operations or income may be subject,
due as of the date hereof, have been duly prepared and filed in good faith and
all taxes shown thereon have been paid or are accrued on the books of the
Company.
15. Tax Accruals.
Except for the unpaid payroll taxes due the IRS and any sums which have been or
are assess as a result of the Audit, all other taxes and other assessments and
levies which the company 8s required by law to withhold or to collect have been
duly withheld and collected and have been paid over to the proper governmental
authorities or are held by the Company for such payment and all such withholding
and collections and all other payments unpaid and due in connection therewith as
of August 31, 1998 are duly reflected in the balance sheet of the company as of
said date.
16. Labor Problems.
Except as set forth in Schedule B or D annexed hereto and made a part hereof, no
labor or labor union problems or difficulties, strikes, walk-outs, slow downs,
job actions, boycotts, arbitrations, investigations, litigations or similar
proceedings with respect thereto, are presently existing, suffered, pending, or
threatened with respect to the Company, its employees, business operations,
assets or properties.
17. Compliance with Law.
Except as set forth in Schedule B or D annexed hereto and made a part hereof,
all of the properties, assets and business operations of the company conform in
material respects with all applicable ordinances, regulations, laws and
statutes, including but not limited to building, zoning, safety, highway and
other such laws, rules, regulations and ordinances.
18. Infringements.
The Company has never been charged with infringement or violation of any
adversely held patent, trademark, trade name, or copyright, with claims reading
on operations of the company or on apparatus or methods employed by the Company
in effecting the same, which would materially adversely affect any operations of
the Company, nor is the Company using or in any way making use of any
confidential information or trade secrets, of any former employer or any present
or past employee of the Company except as a result of the acquisition of the
business of such former employer.
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19. Truth of Representation.
No representation by the Company made in this Agreement and no statement made in
any certif8icate or schedule furnished in connection with the transaction herein
contemplated contains or will contain any knowingly untrue statement of a
material fact or knowingly omits or will omit to state any material fact
reasonably necessary to make any such representation or any such statement not
misleading to the Buyer in light of the due diligence of the Buyer and its
officers, employees and agents have performed and will perform prior to the
Closing.
V. COVENANTS OF THE SELLER AND THE COMPANY.
Seller hereby covenants and agrees as follows:
1. Inspection of Records.
Through the date of this Agreement (the "Due Diligence Period"), the Buyer has
had the right and opportunity at its own expense to make such examination and
investigations of the Company's business, properties and affairs as the Buyer
deemed necessary or desirable for all purposes relating to this Agreement (the
"Due Diligence") and to that end, throughout the Due Diligence Period, the
Company has allowed and granted the Buyer, its officers, counsel, accountants,
auditors and executive employees (collectively, the "Buyer") full, free and
continuos access, during normal business hours and without interference with the
conduct of the Company's business, to all of the premises, properties,
contracts, commitments, leases, books, papers, documents, instruments, books of
account, minutes and other records of the company and furnished and provided the
Buyer with all such financial and other statements and all such additional
information and particulars in respect of the business, properties and affairs
of the Company as the Buyer requested from time to time during the Due Diligence
Period.
2. Conduct of Business.
During the period from the date hereof to the Closing Date as that term is
hereinafter defined, the Company shall:
A. Conduct its business and operations solely in its normal and ordinary
course;
B. Issue no additional shares of stock, options, calls or other rights to
purchase such stock, or any other securities of any kind whatever;
C. Make no distributions to its shareholders, as shareholders of any of its
assets or properties by way of dividends, purchase of shares, redemptions or
otherwise;
D. Not transfer to any person, firm or corporation any customers, customer
lists or customer accounts of the Company;
E. Make no increase of any kind in salary, wages, bonus or compensation of any
officer, employee, representative or agent of the Company or pay any extra
compensation of any kind whatever to any of such persons, except with respect to
such increases in or additions to compensation as may be required to be paid in
accordance with existing firm and binding contracts and commitments of the
company and except as may be in accordance with past procedures and in the usual
and ordinary course of business of the Company;
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F. Not sell, transfer or dispose of any of the Stock;
G. Not sell, transfer or dispose of any of its business, properties or assets,
tangible or intangible, except for a full and fair consideration in the usual
and ordinary course of business;
H. Make no purchases or acquisitions of any real or personal property nor
increase or decrease inventory, except in the usual and ordinary course of
business;
I. Not subject any of its business, property or assets whatever, tangible or
intangible, to any mortgage, lien, pledge, hypothecation or encumbrance in any
manner except for a full and fair consideration in the usual and ordinary course
of business;
J. Not borrow any money, make any unusual or extraordinary expenditures or
incur or become liable for any obligations or liabilities except current
liabilities in the usual and ordinary course of its business
K. Not make any loans or advances or extend any credit except in the usual and
ordinary course of its business.
3. Publicity.
All notices to third parties other than Seller and all other publicity
concerning the transactions contemplated by this Agreement shall be planned and
coordinated jointly by Buyer and by the Company
VI. CONDITIONS PRECEDENT TO CLOSING.
1. Seller's Conditions Precedent:
All obligations of the Seller under this Agreement are subject to the
fulfillment of each of the following conditions, in additions to the fulfillment
of any and all other conditions set forth in this Agreement:
A. Bridge Loan.
Buyer shall make available to the Company a Bridge Loan in the amount of
$350,000 to provide working capital to the Company. This Loan shall be made at
the prime rate of interest as published in the "Wall Street Journal". This Loan
shall be made available pursuant to the acceptance and approval of the
appropriate jurisdiction of the Bankruptcy Court of Hillsboro County, New
Hampshire.
B. Performance of Covenants.
Each and every covenant herein made by Buyer and the Parent, which are to be
performed at or prior to the Closing Date, shall have been duly performed by
such times including, without limitation, the payment of the Purchase Price and
the execution and delivery of the related documents.
2. Buyer's Conditions of Precedent.
All of the obligations of the buyer under this Agreement are subject to the
fulfillment of each of the following conditions, in addition to the fulfillment
of any and all other conditions set forth in this Agreement:
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A. Effectiveness of Warranties.
Except for any representation or warranty which by its terms relates to a date
earlier than the closing or has been waived by the expiration of the Due
Diligence Period without objection insofar as any circumstance, event or fact
which existed on or before such expiration date, each and every on of the
warranties and representations of Seller and the Company as hereinbefore set
forth in Paragraph C hereof, shall be true at and as of the Closing Date as
though such representations were made at and as of such time.
B. Performance of Covenants.
Each and every covenant herein made by Seller and the company, as set forth in
paragraph D, which are to be performed at or prior to the Closing Date, shall
have been duly performed by such time.
VII. INDEMNIFICATION
1. Buyer shall be indemnified by Seller and the Company as follows:
Seller and the Company shall indemnify and hold harmless the buyer from and
against any losses, damages or expenses which may be suffered or incurred by
Buyer arising from or by reason of the inaccuracy of any Surviving
Representation. Without expanding Seller's liability under the terms of this
Agreement, Seller shall have no liability under this Section for any loss,
damage, expense or amount suffered or incurred by Buyer or the Company (a) as a
result of any election made by the Buyer or the Company subsequent to the
Closing under Section 338 of the Internal Revenue Code of 1954, as amended or
(b) which is covered by Insurance maintained by the Company on the Closing Date.
2. The Buyer shall indemnify the Company and Seller and shall hold the
Company and Seller harmless, on demand, from and against any losses, damages or
expenses which may be suffered or incurred by the Company or Seller arising from
or by reason of the inaccuracy of any statements, representation or warranty of
the Buyer made herein or in any statement, representation or warranty of the
Buyer made herein or in any document or instrument delivered by the Buyer to
Seller or the Company in connection with the transactions herein contemplated,
or the failure of Buyer to perform any agreement or covenant made by it herein
or in any document or instrument delivered by Buyer to Seller or the Company in
connection with the transactions herein contemplated.
VII. CLOSING
1. Time and Place.
The closing under this Agreement (the "Closing") and all deliveries hereunder
shall take place on a date and place acceptable to both parties (the "Closing
Date").
2. Delivery of Documents.
At the Closing, the Company will deliver to the Buyer the following documents:
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A. A written opinion, dated on the Closing Date, of counsel representing the
Company, in the form of Schedule G hereto, to the effect that the Company has
been duly incorporated and is on the closing date validly existing as a
corporation in good standing under the laws of the state of its incorporation;
that the Company is duly qualified or licenses as a foreign corporation in all
other states in which it does business; that the shares of capital stock
delivered by Seller to Buyer at the closing have been validly issued and are
outstanding, fully paid, and non-assessable, and constitute all of the issued
and outstanding shares of capital stock of the Company; that such counsel
knows of no litigation, proceeding or investigations pending or threatened
against the Company or Seller which might result in any material adverse
change in the validity of this Agreement or of any action taken or to be taken
pursuant to or in connection with the provisions of this Agreement, other than
as represented elsewhere in this Agreement; and that to thee knowledge of
such counsel the sale, transfer, assignment and delivery by Seller to Buyer of
the Stock pursuant to this Agreement will vest in buyer all rights, title and
interest in and to such Stock free and clear of all liens, encumbrances,
and equities.
B. A written confirmation dated the Closing Date, by the Accountant who
reviewed any and all of the financial statements of the Company and who most
recently examined the books and records of the Company in the form of Schedule H
hereto.
C. A certificate of the Chief Operating Officer and the Chief Financial Officer
of the Company, dated the Closing Date certifying to the best of his knowledge,
in reasonable detail as buyer may request on and as of said date, to the
fulfillment, as of the Closing Date, of each and every one of the conditions
precedent to the closing set forth in paragraph E hereof to the extent required
thereby.
D. Such additional copies or duplicate originals of the above described
documents and such other documents, undertakings and assurances as Buyer shall
reasonably require, all of which documents, undertakings and assurances shall be
delivered to Buyer sufficiently in advance of the Closing Date, as Buyer shall
reasonably require, so as to permit adequate inspect8ion and examination
thereof, all of which documents undertakings and assurances shall be in form
reasonably satisfactory to counsel to Buyer.
At the Closing, Buyer will deliver to each Seller the following:
E. A written opinion of counsel to Buyer, dated as of the Closing, to the
effect of the representations of Buyer and the Majority Stockholders in Section
B hereof.
IX. CONFIDENTIALITY.
All information and documentation provided or to be provided by the Company or
Seller to Buyer in connection with this Agreement and the transactions
contemplated hereby has been and shall be provided in the strictest confidence.
Pending the Closing, Buyer covenants and agrees not to use any of such
information or documentation in or for the benefit of any business engaged in
directly or indirectly by buyer and not to furnish or disclose any of such
information or documentation to any person or company. If the transactions
contemplated by this Agreement are not consummated, Buyer covenants and agrees
to return all such information and documentation to the Company and not retain
any copies thereof, and buyer further covenants and agrees to maintain the
confidentiality of such information and documentation and to neither use any of
it in or for the benefit of any business engaged in directly or indirectly by
the Buyer nor furnish or disclose any of it to any person or company.
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X. GENERAL PROVISIONS.
1. Brokerage Fees.
Buyer will pay brokerage fees to BKR International Mergers & Acquisitions group,
LLC and Leveson Associates, Inc. by separate agreements and the Buyer shall
hold the Seller harmless from any claim for the payment of such fees.
2. Conversion Rights.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ will have the right to
convert their stock into the shares of any public company that may in the future
acquire or merge with the Buyer.
3. Due Diligence.
The Buyer has conducted its own Due Diligence and has a right granted to it by
this Agreement the authority to have its own auditors conduct a full and
expansive audit of the books and records of CPM, in the normal course of
auditing for year end purposes on or before August 1, 1999 (the "Unwind Date").
Should it be finally determined that Seller or the Company has breached any
Surviving Representation, then the Buyer shall have the right to call upon the
un-wind provisions as delineated herein.
4. Restructure of Debt.
The Seller and the Company agree to make a good faith effort to restructure the
debt with Fleet Bank and various other vendors. The parameters of the
restructure is to include:
A. Fleet Bank accepting $360,.000 in full payment of debt owed to it from the
Company at closing.
B. Mutual releases covering Fleet Bank, the Company and the guarantors of the
debt.
C. The Company will make a good faith effort to restructure outstanding
accounts payable.
5. Employment Contracts.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. will continue as president and Chief Operating
Officer of the Company pursuant to an employment agreement terms of which to
include a salary of $100,000 per year for a 5 year period. This Agreement is
subject to the execution of Employment contracts satisfactory to both parties.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ will continue as Vice President and Chief Financial Officer
of the Company pursuant to an employment agreement terms of which to include a
salary of $40,000 per year for a 5 year period. This Agreement is subject to
the execution of Employment Contracts satisfactory to both parties.
6. Non-Compete Agreements.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ will sign non-compete agreements
satisfactory to the Buyer and to the Seller.
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7. Corporate Action.
Prior to the Closing Date, the Board of Directors of the Company and the Buyer
shall have duly adopted resolutions to the same effect with respect to the
aforesaid matters.
8. Termination.
In the event any of the foregoing conditions shall not be fulfilled prior to the
Closing, unless caused by any action or failure to act on the part of Buyer,
Buyer shall have the right to terminate the Agreement by notice thereof in
writing to the Company, and the parties thereto shall be restored as far as
possible to status quo, whereupon the parties hereto shall have no further
obligations or liabilities hereunder, one against the other, except for the
obligation of Buyer under Section H hereof which shall survive a termination of
this Agreement.
9. Refinancing of Certain Debt.
The Seller and the Company will make a good faith effort to pursue the
refinancing of certain corporate debt through key bank and will notify the Buyer
promptly of any change in the status of these negotiations.
10. Survival of Representations, Warranties and Covenants.
The affirmations, representations and warranties by Seller and/or the Company in
Paragraph IV, 3. and 4. of this Agreement (the "Surviving Representations")
shall survive the Closing until August 1, 1999 when they shall expire and become
non-actionable. Except for the Surviving Representations, the representations,
warranties, covenants indemnities and other agreements herein contained shall
not survive the closing and shall expire and become non-actionable automatically
at the conclusion of the Closing for a period not to exceed nine months from the
date of Closing.
11. Diligence.
The parties hereto agree that each shall with reasonable diligence proceed to
take all action which may be reasonably required to consummate the transaction
herein contemplated.
12. Waivers.
Each party hereto may:
A. Extend the time for performance of any of the obligations of the other
party;
B. Waive in writing any inaccuracies in representations and warranties made to
it contained in this Agreement or any schedule hereto or any certificate or
certificates delivered by any of the other parties pursuant to this Agreement;
and
C. Waive in writing the failure of performance of any of the agreements,
covenants, obligations or conditions of the other parties herein set forth or
alternatively terminate this Agreement for such failure.
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13. Non-Waiver.
The waiver by any party hereto of any breach, default, inaccuracy or failure by
another party with respect to any provision of this Agreement or any schedule
hereto shall not operate or be construed as a waiver of any other provision
thereof or of any subsequent breach thereof.
14. Further Assurances.
Each party hereto agrees to execute such further documents or instruments,
requested by the other party, s may be reasonably necessary or desirable to the
effect the purposes of this Agreement and to carry out its provisions, at the
expense of the party requesting the same.
15. Entire Agreement.
This Agreement constitutes a complete statement of all the arrangements,
understandings and agreements between the parties, and all prior memoranda and
oral understandings with respect thereto are merged in this Agreement. There
are no representations, warranties, covenants, conditions or other agreements
among the parties except as herein specifically set forth, and none of the
parties hereto shall rely on any statement by or on behalf of the other parties
which is not contained in this Agreement.
16 Governing Law.
Irrespective of the place of execution or performance of this Agreement, it
shall be governed by and construed in accordance with the laws of the State of
new Hampshire applicable to contracts made and to be performed in the State of
New Hampshire, and cannot be changed, modified, amended or terminated except in
writing, signed by the parties hereto.
17. Benefit and Assignablity.
This agreement shall bind and inure to the benefit of the parties hereto and
their respective legal representatives, successors and assigns, provided,
however, that this Agreement cannot be assigned by any party except by or with
the written consent of the others. Nothing herein expressed or implied is
intended or shall be construed to confer upon or to give any person, firm or
corporation other than the parties hereto and their respective legal
representatives, successors, and assigns any rights or benefits under or by
reason of this Agreement.
18. Approval of Counsel.
The form of all legal proceedings and of all papers and documents used or
delivered hereunder, shall be subject tot the approval of counsels to Buyer and
Seller.
19. Costs.
The Buyer shall not be entitled to reimbursement of the Buyer's costs and
expenses of the transaction. The costs and expenses of the Seller in connection
with this Agreement and the transactions contemplated hereby shall be borne and
paid by CPM Associates.
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20. Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same Agreement.
21. Notices.
Any notices and other communications under this Agreement shall be in writing
and shall be considered given if delivered personally or mailed by certified
mail to the party, for whom such notice is intended, at the address indicated at
the outset hereof (or at such other address as such party may specify by notice
to the other parties hereto).
22. Headings.
The headings in this Agreement are intended solely for the convenience of
reference and shall be given no effect in the construction or interpretation of
this Agreement.
23. Further Action.
Any further action required or permitted to be taken under this Agreement,
including giving notices, executing documents, waiving conditions, and agreeing
to amendments or modifications, may be taken on behalf of a party by its Board
of Directors, its President or any other person designated by its Board of
Directors, and when so taken shall be deemed the action of such party
IN WITNESS WHEREOF, the parties hereto have respectively executed this Agreement
the day and year first above written.
BUYER SELLER
CPM ASSOCIATES HOLDING CORP. By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
Witness: /s/ signed
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Vice President Witness: /s/ signed
Witness: /s/ signed THE COMPANY
CONTRACTING, PLANNING, MANAGEMENT,
ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇. President
Witness: /s/ signed
