ASSET PURCHASE AGREEMENT May 25, 2005 Sea Change Group LLC to Innopump, Inc.
May
25, 2005
Sea
Change
Group LLC
to
Innopump,
Inc.
THIS
ASSET PURCHASE AGREEMENT (this
“Agreement”) is made this 25 day of May __, 2005, by and among Sea Change
Group LLC, a New York limited liability company (the “Seller”), and Innopump,
Inc., a Nevada corporation (the “Buyer”).
RECITALS:
| A. |
Seller
and Buyer may hereafter be referred to as the Parties and capitalized
terms are used as defined within this
agreement.
|
| B. |
The
Seller is engaged in the business of developing, marketing and selling
the
Versadial® delivery pump (the “Business”).
|
| C. |
The
Seller owns or leases the assets used in the conduct of the Business,
including, without limitation, inventory, equipment, contract rights,
intellectual property and related items to the conduct of the Business.
|
| D. |
The
Seller desires to sell and the Buyer desires to purchase certain
assets of
the Business and assume certain liabilities of the Business in accordance
with the terms and conditions of this
Agreement.
|
| E. |
Contemporaneously
with the execution hereof, Seller and Buyer are entering into that
certain
Sub-License, Development and Technology Transfer Agreement for Versadial®
Delivery Pump which together with this agreement constitutes the
transfer
and license of rights and materials to Buyer (the
“Transaction”).
|
AGREEMENT:
NOW,
THEREFORE,
in
consideration of the payments herein provided for and the covenants herein
contained, the parties hereby agree as follows.
ARTICLE
1.
SALE
AND PURCHASE OF ASSETS
On
the
terms and subject to the conditions of this Agreement, and for the consideration
set forth in ARTICLE
3
(“Purchase Price”), the Seller shall on the Closing Date (as defined below),
sell, transfer and convey to the Buyer, free and clear of any and all liens,
claims, pledges, encumbrances, mortgages, security interests and charges of
any
kind (collectively, “Liens”) other than as specifically set forth herein, all of
the Seller’s right, title and interest in and to the following assets
(collectively, the “Assets”):
1.1.
Inventory. All of the Business’ inventory (including, without limitation,
raw materials, work in progress, component parts, finished goods and related
inventory items, supplies and packaging materials) as of the Closing Date,
whether in the Seller’s possession, in transit to or from the Seller or held by
any third party (the “Inventory”);
1
1.2.
Contracts. All contracts and agreements (verbal or written) which are in
force and effect as of the Closing Date as identified on Schedule 1.2,
attached hereto (the “Contracts”) and liabilities incurred in the ordinary
course of business and consistent with past practice of the Seller since the
Balance Sheet Date not involving borrowings;
1.3.
Leases. The leasehold interests in the real property, equipment and
vehicles identified on Schedule 1.3, attached hereto, including the
security deposits thereunder (the “Assigned Leases”).
1.4.
Tangible Property. All tangible personal property, including all
machinery, molds, tooling, production lines, equipment, furniture, computers,
related office equipment and all fixtures and leasehold improvements located
within the space contemplated by the Assigned Leases (the “Tangible Property”) ,
as identified on Schedule 1.4);
1.5.
Intangible Property. All intangible property, including all internet
sites, domain names, telephone and fax numbers, computer software, patents,
copyrights, trademark, trade names and service names, as identified on
Schedule 1.5;
1.6.
Prepaid Items and Deposits. All prepaid items of the Seller, including
without limitation prepaid rentals, insurance, taxes and deposits relating
to
the Business and Seller’s operations, as identified on Schedule
1.6;
1.7.
Accounts Receivable. All accounts receivable of the Seller and other
rights of Seller to receive payments for merchandise sold and/or services
rendered, including without limitation all trade account receivables arising
from sales of inventory and services in the ordinary course of
business;
1.8.
Names All of Seller’s right, title and interest in and to the names
“Versadial®” and any derivatives thereof employed in the Business and all
goodwill associated therewith;
1.9.
Lists and Records. All of the Seller’s books and records, manufacturer,
customer and supplier lists, sales and promotional materials, cost and shipping
records, research and development reports and records, production reports and
records, service and warranty records, equipment logs, operating guides and
manuals, advertising materials, computer programs, studies, reports,
correspondence and other lists and documents (other than the corporate minute
books, stock books and stock transfer ledgers), of the Seller primarily or
exclusively related to the Assets or the Business;
1.10.
Goodwill. The goodwill and value of Seller as a going concern, including
the right to use the name, rights and goodwill respecting and arising out of
the
name “Versadial”; and
1.11.
Excluded Assets. Seller’s name, cash and cash equivalent assets (the
“Excluded Assets”).
2
ARTICLE
2.
LIABILITIES
2.1.
Assumption of Liabilities. Upon the transfer of the Assets in accordance
with this Agreement, the Buyer shall assume and agree to pay, discharge or
perform, as appropriate, all of Seller’s obligations and liabilities from and
after the Closing Date under the Contracts and the Leases and the liabilities
associated with the liabilities specifically identified on Schedule 2.1,
including, but not by way of limitation, outstanding trade debt, $700,000 of
debt held by Ocean Drive Holdings, LLC and $400,000 in other long term
obligations(the “Assumed Liabilities”).
2.2.
Retained Liabilities. The Buyer shall not assume or become in any way
liable for any debts, liabilities, claims, contingencies or other obligations
of
any kind at any time owed by Seller which are not expressly provided in
Section 2.1 above.
ARTICLE
3.
PURCHASE
PRICE
3.1.
Purchase Price. The aggregate purchase price for the Assets shall be
comprised of the following (the “Purchase Price”):
| 3.1.1. |
$231,500
previous receipt of which is hereby
acknowledged;
|
| 3.1.2. |
$600,000
payable only upon the conclusion of (i) any merger, consolidation
or other
business combination or or sale of all or substantially all of the
assets
of the Buyer, or (ii) a debt or equity financing (or series thereof)
resulting in no less than an aggregate of $3,000,000 in gross proceeds
to
Buyer;
|
| 3.1.3. |
the
assumption of the Assumed
Liabilities;
|
| 3.1.4. |
the
payment of expenses related to the maintenance of rights in the Dispenser;
and
|
| 3.1.5. |
the
expenses of effecting this transaction, including legal expenses
of both
Seller and Buyer hereunder and all expenses incident to effecting
the
transfer(s) of the underlying technologies and intellectual rights
and
properties pursuant to that certain Sub-License, Development and
Technology Transfer Agreement for Versadial® Delivery Pump between the
Parties of even date herewith.
|
3.2.
Payment. Buyer shall assume the Assumed Liabilities as of the Closing
Date by execution of any and all such documents as may be reasonably necessary
to effect such assumptions. Buyer further agrees to execute and deliver to
Seller from time to time thereafter any and all necessary and/or appropriate
documents consistent with the intent of this Agreement
3
3.3.
Allocation of the Purchase Price. The Purchase Price shall be allocated
among the Assets being sold hereunder in the manner set forth in Schedule 3.3
hereto. Buyer and Seller agree that except as otherwise required by law (i)
the
Allocation shall be binding on Buyer and Seller for all federal, state, and
local tax purposes and (ii) Buyer and Seller, if required, shall file with
their
respective federal income tax returns consistent IRS Forms 8594 -- Asset
Acquisition Statements Under Section 1060, including any required amendments
thereto which shall reflect the allocations set forth in the
Allocation.
ARTICLE
4.
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
The
Seller hereby represents and warrants to the Buyer, except as set forth on
the
Schedule of Exceptions to Representations and Warranties attached hereto as
Exhibit ARTICLE 4 (the “Seller Schedule of Exceptions”), the
following:
4.1.
Existence and Good Standing. The Seller is duly formed, validly exists
and in good standing (including tax good standing) under the laws of the State
of New York, with the requisite power and authority to own its property and
to
carry on the Business as it is now being conducted. The Seller is not required
to be qualified to do business in any other jurisdictions where the failure
to
qualify would have a Material Adverse Effect. The Seller has no
subsidiaries.
4.2.
Financial Statements and No Material Changes. The following have
previously been provided to the Buyer: (a) the Seller prepared balance sheets
of
the Seller as at December 31, 2004, and the related audited statements of income
for the fiscal year then ended and (b) the Seller prepared balance sheet of
the
Seller as at March 31, 2005 and the related reviewed statements of income for
the three (3) months then ended (the balance sheet of the Seller as at March
31,
2005 being referred to herein as the “Balance Sheet”). Such financial statements
have been prepared in accordance with GAAP throughout the periods indicated.
Each balance sheet fairly presents the financial condition of the Seller, at
the
respective date thereof, and reflects all claims against and all debts and
liabilities of the Seller, fixed or contingent, as at the respective date
thereof, required to be shown thereon under GAAP and the related statements
of
income fairly present the results of income for the respective period indicated.
Since March 31, 2005 (the “Balance Sheet Date”), there has been no material
adverse change in the assets or liabilities, or in the Business or condition,
financial or otherwise, or in the results of operations of the
Seller.
4.3.
Books and Records. All accounts, books, ledgers and other records
material to the Seller have been properly and accurately kept and are complete
in all material respects, and there are no material inaccuracies or
discrepancies of any kind contained or reflected therein.
4.4.
Title to Properties; Encumbrances. The Seller now has good and valid
title to, or enforceable leasehold interests in or valid rights under contract
to use, all the Assets (tangible and intangible), in each case free and clear
of
all Liens, except for Liens set forth on Schedule 4.4. The property and
equipment, whether owned or otherwise contracted for, is in a state
of
good maintenance and repair (ordinary wear and tear excepted) and is adequate
and suitable for the purposes for which they are presently being
used.
4
4.5.
Real Property.
4.5.1.
Owned Real Property. The Seller does not own any real property
(including
ground leases) or hold a freehold interest in any real property or any option
or
right of first refusal or first offer to acquire any real property and the
Seller is not obligated by Contract or otherwise to purchase any real property.
4.5.2.
Leased Real Property. Schedule 4.5.2 contains an accurate and
complete list of all real property leases, subleases, licenses and other
occupancy agreements, including without limitation, any modification, amendment
or supplement thereto and any other related document or agreement executed
or
entered into by the Seller (including, without limitation, any Real Property
Lease which the Seller has subleased or assigned to another Person and as to
which the Seller remains or will remain liable) (each individually, a “Real
Property Lease” and collectively, the “Real Property Leases”). Each Real
Property Lease set forth on Schedule 4.5.2 is valid, binding and in full
force and effect, enforceable against the Seller in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors’ rights and (ii) general principles of equity that restrict the
availability of equitable remedies; (b) all rents and additional rents and
other
sums, expenses and charges due thereunder to date on each such Real Property
Lease have been paid; (c) there exists no default or event of default by the
Seller or by any other party to any Real Property Lease; and there exists no
occurrence, condition or act (including the purchase of the Purchased Stock
hereunder) which, with the giving of notice, the lapse of time or the happening
of any further event or condition, would become a default or event of default
by
the Seller under any Real Property Lease; and (d) there are no outstanding
claims of breach or indemnification or notice of default or termination of
any
Real Property Lease. The Seller holds the leasehold estate on all the Real
Property Leases free and clear of all Liens except as set forth on Schedule
4.5.2 and any mortgagees’ liens on the real property in which such leasehold
estate is located and liens which do not and will not materially detract from
or
interfere with the use of the properties, or otherwise materially impair
business operations involving such properties. The real property leased by
the
Seller is in a state of good maintenance and repair, is adequate and suitable
for the purposes for which it is presently being used and there are no material
repair or restoration works likely to be required in connection with any of
such
leased real properties.
4.6.
Contracts.
4.6.1.
The Seller has delivered to the Buyer accurate and complete copies of all of
the
Contracts. All of the Contracts are in full force and effect and are valid,
binding and enforceable in accordance with their terms. Except as disclosed
on
Schedule 4.6.1, the Seller has performed and is performing all
obligations required to be performed by it under the Contracts, and the Seller
is not in default (with or without notice, the passage of time, or both) of
any
obligations under any of the Contracts.
5
4.6.2.
Except as disclosed on Schedule 4.6.2, the Seller has not received any
written notice of default under any of the Contracts, nor to Seller’s knowledge,
has any event occurred which with notice or lapse of time or both would
constitute a default by the Seller thereunder.
4.6.3.
Except as disclosed on the Schedule 4.6.3, the Seller has not received
any written or verbal notice of intent to terminate any Contract.
4.7.
Execution and Validity; Non-Contravention; Approvals and
Consents.
4.7.1.
Execution and Validity. The Seller has the full power and authority to
enter into this Agreement and the agreements contemplated hereunder and to
perform its obligations hereunder and thereunder. The execution and delivery
of
this Agreement by the Seller and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all required
corporate or other action on behalf of the Seller. Each of this Agreement and
the agreements contemplated hereunder has been duly and validly executed and
delivered by Seller and, assuming due authorization, execution and delivery
by
the Buyer and any other parties thereto, constitutes a legal, valid and binding
obligation of the Seller, enforceable against it accordance with its terms,
except (a) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors’ rights and (b) general principles of equity that restrict the
availability of equitable remedies.
4.7.2.
Non-Contravention. Except as set forth in Schedule 4.7.2, the
execution, delivery and performance by the Seller of its obligations under
this
Agreement and the consummation of the transactions contemplated hereby and
thereby, will not (a) violate, conflict with or result in the breach of any
provision of the Articles of Organization and Management provisions of the
Seller; (b) result in the violation by the Seller of any laws or orders of
any
governmental or regulatory authority applicable to the Seller or any of its
assets or properties, or (c) if the consents and notices set forth in
Schedule 4.7.3 are obtained, given or waived, conflict with, result in a
violation or breach of, constitute (with or without notice or lapse of time
or
both) a default under, or require the Seller to obtain any consent, approval
or
action of, make any filing with or give any notice to, or result in or give
to
any Person any right of payment or reimbursement, termination, cancellation,
modification or acceleration of, or result in the creation or imposition of
any
Lien upon any of the assets or properties of the Seller, or under any of the
terms, conditions or provisions of any Contract to which the Seller is a party
or by which the Seller or any of its assets or properties were or are bound.
The
entering into and the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby and thereby (a) will have
been duly and validly authorized by any required corporate action of the Seller,
and (b) will constitute the legal, valid, and binding obligation of the Seller,
enforceable against it in accordance with their respective terms.
4.7.3.
Approvals and Consents. Except as set forth on Schedule 4.7.3, no
consent, approval or action of, filing with or notice to any governmental or
regulatory Authority or other Person is necessary or required under any of
the
terms, conditions or provisions of any law or order of any governmental or
regulatory authority or any Contract to which the Seller is a party,
or
by which its assets or properties were or are bound for the execution and
delivery of this Agreement by the Seller, the performance by the Seller of
its
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby.
6
4.8.
Litigation. Except as set forth on Schedule 4.8, there is no
action, suit, proceeding at law or in equity by any Person, or any employee
grievance, arbitration or any administrative or other proceeding by or before
any investigation by any governmental or regulatory authority, pending or
threatened, against the Seller with respect to this Agreement or the
transactions contemplated hereby, or against or affecting the Business; and
no
acts, facts, circumstances, events or conditions occurred or exist which are
a
basis for any such action, proceeding or investigation. Except as set forth
in
Schedule 4.8, the Seller is not subject to any Order entered in any
lawsuit or proceeding relating to the Business or the Assets. Schedule
4.8 also sets forth with respect to each pending or threatened action, suit
or proceeding listed thereon, the amount of costs, expenses or damages the
Seller has incurred to date.
4.9.
Taxes. The Seller has filed or will file all tax returns and tax reports
required to be filed by it with respect to the Business or the Assets,
including, without limitation, those returns and reports pertaining to federal,
state, provincial, local, foreign or other income taxes, gross receipt taxes,
ad
valorem taxes, transfer taxes, excise taxes, sales and use taxes, payroll taxes,
withholding taxes, occupation taxes, property taxes and franchise taxes. All
such tax returns and tax reports are or will be correct and complete, and all
taxes, interest and penalties shown or claimed to be due thereon have been
paid
or will be paid when due. There are no Liens for taxes on the Assets or with
respect to the Business.
4.10.
Liabilities. Except as set forth on the Balance Sheet or as set forth on
Schedule
4.10, the Seller has no outstanding claims, liabilities or indebtedness of
any
nature whatsoever as to which the Seller is or may become responsible
(collectively in this Section 4.10, “Liabilities”), whether accrued,
absolute or contingent, determined or undetermined, asserted or unasserted,
and
whether due or to become due, other than (i) Liabilities specifically disclosed
in any Schedule hereto; (ii) Liabilities under Contracts of the type required
to
be disclosed on any Schedule and so disclosed or which because of the dollar
amount or other qualifications are not required to be listed on such Schedule;
and (iii) Liabilities incurred in the ordinary course of business and consistent
with past practice of the Seller since the Balance Sheet Date not involving
borrowings.
4.11.
Insurance. Schedule 4.11 contains a true and complete list
(including the names and addresses of the insurers, the names of the Persons
to
whom such insurance policies have been issued, the expiration dates thereof,
the
annual premiums and payment terms thereof, whether it is a “claims made” or an
“occurrence” policy and a brief description of the interests insured thereby) of
all liability, property, workers’ compensation and other insurance policies
currently in effect that insure the property, assets or business of the Seller
or the employees of the Seller (other than self-obtained insurance policies
by
such employees). Each such insurance policy is valid and binding and in full
force and effect, all premiums due thereunder have been paid and the Seller
has
not received any notice of cancellation or termination in respect of any such
policy or default thereunder. In light of the nature of the Seller’s business,
assets and properties, Seller believes they are in amounts and have coverage
that are reasonable and customary
for Persons engaged in the such business and having such assets and properties.
Neither the Seller nor the Person to whom such policy has been issued has
received notice that any insurer under any policy referred to in this Section
4.11 is denying liability with respect to a claim thereunder or defending
under a reservation of rights clause. The Seller has not filed for any claims
exceeding $25,000 against any of its insurance policies, exclusive of automobile
and health insurance policies. The Seller has not received any notice of
cancellation of any such policy. The Seller has not received notice from any
of
the Seller’s insurance carriers that any premiums will be materially increased
in the future or that any insurance coverage listed on Schedule 4.11 will not
be
available in the future on substantially the same terms now in
effect.
7
4.12.
Intellectual Properties.
4.12.1.
Definitions. For purposes of this Agreement, the following terms have the
following definitions:
4.12.1.1.
“Intellectual Property” shall include, without limitation, any or all of the
following and all rights associated therewith: (a) all domestic and foreign
patents, and applications therefore, and all reissues, reexaminations,
divisions, renewals, extensions, continuations and continuations-in-part
thereof; (b) all inventions (whether patentable or not), invention disclosures,
improvements; (c) trade secrets, confidential and proprietary information,
know
how, technology, technical data and customer lists, financial and marketing
data, pricing and cost information, business and marketing plans, databases
and
compilations of data, rights of privacy and publicity, and all documentation
relating to any of the foregoing; (d) all copyrights, copyright registrations
and applications therefore, unregistered copyrights, the content of all World
Wide Web sites of the Seller, and all other rights corresponding thereto
throughout the world; (e) all mask works, mask work registrations and
applications therefore; (f) all industrial designs and any registrations and
applications therefore; (g) all trade names, Seller names, logos, trade dress,
common law trademarks and service marks, trademark and service ▇▇▇▇
registrations and applications therefore and all goodwill associated therewith;
(h) any and all Internet domain names and Web sites (including all software
and
applications, and all components and/or modules thereof), used in connection
therewith; and (i) all computer software including all source code, object
code,
firmware, development tools, files, records and data, all media on which any
of
the foregoing is recorded, and all documentation related to any of the
foregoing.
4.12.1.2.
“Intellectual Property of the Seller” shall mean any Intellectual Property that:
(a) is owned by or exclusively licensed to the Seller, or (b) which is used
in
the operation of the Business, but shall specifically not include any rights
which are subject to an assignment in favor of clients of the
Seller.
4.13.
Representations. Schedule 4.13 hereto contains an accurate and
complete list of all patents, patent applications, registered trademarks,
applications for registered trademarks, registered service marks, applications
for registered service marks, logos, registered copyrights and applications
for
registered copyrights which are used in connection with the operation of the
Business or the Assets (the “Registered IP”).
8
4.13.1.
Except as set forth on Schedule 4.13, the registrations and applications
of the Registered IP listed on Schedule 4.13 are owned by and are in the
name of the Seller and are valid, in proper form, enforceable and subsisting,
all necessary registration and renewal fees in connection with such
registrations have been made and all necessary documents and certificates in
connection with such registrations have been filed with the relevant patent,
copyrights and trademark authorities in the United States or other jurisdiction
for the purposes of maintaining such Intellectual Property registrations, and
applications therefore.
4.13.2.
No registration, or application therefore, for any of the Registered IP has
lapsed, expired, or been abandoned, and no such registrations, or applications
therefore, are the subject of any opposition, interference, cancellation, or
other legal, quasi-legal, or governmental proceeding pending before any
governmental, registration, or other authority in any jurisdiction.
4.13.3.
Except as set forth on Schedule 4.13, (i) no Person has any rights to use
any of the Intellectual Property of the Seller, (ii) the Seller has not granted
to any Person, nor authorized any Person to retain, any rights in the
Intellectual Property of the Seller, and (iii) the Seller owns all rights,
title
and interest in, or has the right to use, all Intellectual Property used in,
or
necessary for, the conduct of the Business, free and clear of all
Liens.
4.13.4.
Except as set forth on Schedule 4.13, the consummation of the
transactions contemplated hereby will not result in any loss or impairment
of
Seller’s rights to own or use any Intellectual Property, nor will such
consummation require the consent of any third party in respect of any
Intellectual Property.
4.13.5.
The operation of the Business does not infringe the Intellectual Property of
any
other Person.
4.13.6.
There are no proceedings pending or threatened against the Seller with respect
to the Intellectual Property, or with respect to any other Intellectual
Property, alleging the infringement or misappropriation by the Seller of any
Intellectual Property of any Person.
4.13.7.
There are no claims pending or threatened challenging the validity of any
Intellectual Property of the Seller or any Intellectual Property used by the
Seller in the conduct of the Business.
4.13.8.
The Seller has not entered into or is otherwise bound by any consent,
forbearance or any settlement agreement which limits the rights of the Seller
to
use the Intellectual Property of the Seller.
4.13.9.
To the knowledge of Seller no Person is infringing or misappropriating any
of
the Intellectual Property of the Seller.
4.14.
Compliance with Laws; Permits.
4.14.1.
Compliance. The Seller is, and the Business has been conducted, in
compliance with all applicable Laws and Orders, except in each case (other
than
with respect to compliance
with environmental Laws and Orders relating to the regulation or protection
of
the environment and public health and safety (“Environmental Laws and Orders”))
where the failure to so comply would not reasonably be expected to have a
Material Adverse Effect, including without limitation: (a) all laws and orders
promulgated by the Federal Trade Commission or any other governmental or
regulatory authority; (b) all Environmental Laws and Orders; and (c) all Laws
and Orders relating to labor, civil rights, and occupational safety and health
laws, worker’s compensation, employment and wages, hours and vacations, or pay
equity. The Seller has not been charged with or threatened with or under any
investigation with respect to, any charge concerning any violation of any Laws
or Orders.
9
4.14.2.
Permits. With respect to the jurisdictions in which it conducts business,
the Seller holds and is in compliance with all permits, licenses, and other
government certificates, authorizations and approvals (“Permits”) required by
any governmental or regulatory authority (including, without limitation, those
Permits required under applicable Environmental Laws and Orders) for the
operation of the Business as presently operated or used, except where the
failure to have such Permits would not reasonably be expected to have a Material
Adverse Effect. All of the Permits are in full force and effect and no action
or
claim is pending, or threatened, to revoke or terminate any such Permit or
declare any such Permit invalid in any material respect Schedule 4.14.2
sets forth a list of the Permits that are utilized by the Seller in the
operation of the Business.
4.14.3.
Hazardous Materials. There have been no chemicals, substances or
materials listed under, governed or regulated by Environmental Laws and Orders
(collectively “Hazardous Materials”) spilled, released, discharged, emitted or
disposed of by the Business except in compliance with Environmental Laws and
Orders. There is no existing contamination at, under or around any part of
the
Facility that would result in any Material Adverse Effect. The Seller has not
received any notices, claims, demands, or requests for information from any
governmental or regulatory authority or any third party with respect to
Hazardous Materials generated, spilled, released, discharged, emitted or
disposed of by the Business. True, complete and correct copies of the written
reports, and all parts thereof, of all environmental audits or assessments
that
have been conducted with respect to the Business, either by the Seller or any
environmental consultant or engineer engaged for such purpose, have been made
available to Buyer.
4.15.
Accounts Receivable; Work-in-Process; Accounts Payable. The amount of all
work-in-process, accounts receivable, unbilled invoices (including without
limitation unbilled invoices for services and out-of-pocket expenses) and other
debts due or recorded in the records and books of account of the Seller as
being
due to the Seller and reflected on the Balance Sheet represent valid obligations
arising from sales actually made or services actually performed in the ordinary
course of business, will be good and collectible in full (less the amount of
any
provision, reserve or similar adjustment therefore reflected on the Balance
Sheet) in the ordinary course of business, and none of the accounts receivable
is or will be subject to any counterclaim or set-off except to the extent of
any
such provision, reserve or adjustment. There has been no change since the
Balance Sheet Date in the amount or aging of the work-in-process, accounts
receivable, unbilled invoices, or other debts due to the Seller, or the reserves
with respect thereto, or accounts payable of the Seller which would have a
Material Adverse Effect.
10
4.16.
Employee Relations. Except as set forth on Schedule 4.16, (a) no
unfair labor practice complaint against the Seller is pending before any
governmental or regulatory authority; (b) there is no organized labor strike,
dispute, slowdown or stoppage actually pending or threatened against or
involving the Business; (c) there are no labor unions representing or attempting
to represent the employees of the Seller; (d) no claim or grievance nor any
arbitration proceeding arising out of or under any collective bargaining
agreement is pending against the Seller, and no such claim or grievance has
been
threatened; (e) no collective bargaining agreement is currently being negotiated
by the Seller; and (f) the Seller has not experienced any work stoppage or
similar organized labor dispute. Except as set forth on Schedule 4.8,
there is no legal action, suit, proceeding or claim pending or threatened
between the Seller and any employees or former employees of the Seller, agents
or former agents of the Seller, job applicants or any association or group
of
any employees of the Seller.
4.17.
Employee Benefit Matters.
4.17.1.
List of Plans. Schedule 4.17.1 to this Agreement lists all
employee benefit plans (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”)) and all bonus, incentive,
deferred compensation, stock option, restricted stock, stock appreciation
rights, phantom stock rights, retiree medical or life insurance, supplemental
retirement, severance or other benefit plans, programs or arrangements, and
all
termination, severance or other Contracts, whether covering one Person or more
than one Person, and whether or not subject to any of the provisions of ERISA,
which are or have been maintained, contributed to or sponsored by the Seller,
any subsidiary of the Seller or any ERISA Affiliate (as defined in Section
4.17.3) for the benefit of any employee (each item listed on Schedule
4.16 being referred to herein individually, as a “Plan” and collectively, as
the “Plans”). The Seller has delivered to the Buyer, to the extent applicable, a
complete and accurate copy of: (a) each written Plan and descriptions of any
unwritten Plan (including all amendments thereto whether or not such amendments
are currently effective); (b) each summary plan description and all summaries
of
material modifications relating to a Plan; (c) each trust agreement or other
funding arrangement with respect to each Plan, including insurance contracts;
(d) the most recently filed IRS Form 5500 relating to each Plan; (e) the most
recently received IRS determination letter for each Plan; and (f) the three
most
recently prepared actuarial reports and financial statements in connection
with
each Plan. The Seller has not made any commitment, (i) to create or cause to
exist any Plan not set forth on Schedule 4.17.1 or (ii) to modify, change
or terminate any Plan.
4.17.2.
Severance. None of the Plans, nor any employment agreement or other
Contract to which the Seller is a party or bound, (a) provides for the payment
of or obligates the Seller to pay separation, severance, termination or
similar-type benefits to any Person; or (b) obligates the Seller to pay
separation, severance, termination or similar-type benefits as a result of
any
transaction contemplated by this Agreement or as a result of a “change in
control,” within the meaning of such term under Section 280G of the Internal
Revenue Code, as amended (the “Code”), either alone or in conjunction with any
subsequent occurrence.
4.17.3.
Multi-Employer Plans. Neither the Seller nor any ERISA Affiliate has
maintained, contributed to or participated in a multi-employer plan (within
the
meaning of Section
3(37) or 4001(a)(3) of ERISA) or a multiple employer plan subject to Sections
4063 and 4064 of ERISA, nor has any obligations or liabilities, including
withdrawal, reorganization or successor liabilities, regarding any such plan.
As
used herein, the term “ERISA
Affiliate”
means
any Person that is or has been a member of a controlled group of organizations
(within the meaning of Sections 414(b), (c), (m) or (o) of the Code) of which
the Seller is a member.
11
4.17.4.
Welfare Benefit Plans. The Seller has expressly reserved the right, in
all Plan documents relating to welfare benefits provided to employees, former
employees, officers, directors and other participants and beneficiaries, to
amend, modify or terminate at any time the Plans which provide for welfare
benefits, and is not aware of any fact, event or condition that could reasonably
be expected to restrict or impair such rights. Except as required under Section
601 of ERISA, neither the Seller nor any ERISA Affiliate has made any promises
or commitments to provide, and is not obligated to provide (i) medical benefits
(including without limitation through insurance) to retirees or former employees
of the Seller or any ERISA Affiliate
or their respective dependants, or (ii) life insurance or other death benefits
to retired employees or former employees of the Seller or the Predecessor Entity
or any ERISA Affiliate or their respective dependants.
4.17.5.
Administrative Compliance. Each Plan is now and has been operated in all
material respects in accordance with the requirements of all applicable Laws,
including, without limitation, ERISA, the Health Insurance Portability and
Accountability Act of 1996 and the Code, the Age Discrimination in Employment
Act, Family and Medical Leave Act, the Americans with Disabilities Act, the
Equal Pay Act, and Title VII of the Civil Rights Act of 1964, and the
regulations and authorities published thereunder. The Seller has performed
all
material obligations required to be performed by it under, is not in any respect
in default under or in violation of, any default or violation by any Person
under, any Plan. Except as set forth on Schedule 4.16, no legal action,
suit, audit, investigation or claim is pending or threatened with respect to
any
Plan (other than claims for benefits in the ordinary course), and no fact,
event
or condition exists that would be reasonably likely to provide a legal basis
for
any such action, suit, audit, investigation or claim. All reports, disclosures,
notices and filings with respect to such Plans required to be made to employees,
participants, beneficiaries, alternate payees and any governmental or regulatory
authority have been timely made or an extension has been timely obtained. With
respect to any insurance policy providing funding for benefits or an investment
alternative under any Plan, (i) no liability or loss shall be incurred by the
Seller or any such Plan in the nature of a retroactive rate adjustment, loss
sharing arrangement or other liability or loss, and (ii) no insurance Seller
issuing any such policy is in receivership, conservatorship, liquidation or
similar proceeding and no such proceedings with respect to any insurer are
imminent.
4.17.6.
Tax-Qualification. Each Plan which is intended to be qualified under
Sections 401(a) or 408(k) of the Code is qualified under Sections 401(a) and
408(k) of the Code (and, if applicable, complies with the requirements of
Section 401(k) of the Code), and has received a favorable determination letter
from the IRS that it is so qualified. Each trust established in connection
with
any Plan which is intended to be exempt from federal income taxation under
Section 501(a) of the Code is exempt under Section 501(a) of the Code and has
received a determination letter from the IRS that it is so exempt; and no fact
or event has occurred
or condition exists since the date of such determination letter from the IRS
which would be reasonably likely to adversely affect the qualified status of
any
such Plan or the exempt status of any such trust.
12
4.17.7.
Funding; Excise Taxes. There has been no prohibited transaction (within
the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect
to
any Plan subject to ERISA. Neither the Seller nor any subsidiary of the Seller
has incurred any liability for any excise tax arising under Sections 4971,
4972,
4973, 4974, 4975, 4976, 4977, 4978, 4978B, 4979, 4979A, 4980, 4980B, 4980D
or
4980E of the Code or any civil penalty arising under Sections 409, 502(i) or
502(l) of ERISA, and no fact, event or condition exists which could give rise
to
any such liability. Neither the Seller nor any ERISA Affiliate has incurred
any
liability under, arising out of or by operation of Section 302(c)(11) or Title
IV of ERISA (other than liability for premiums to the Pension Benefit Guaranty
Corporation (“PBGC”) arising in the ordinary course), including, without
limitation, any liability in connection with the termination of any employee
benefit plan subject to Title IV of ERISA (a “Title IV Plan”); and, no fact,
event or condition exists which could give rise to any such liability. No
complete or partial termination has occurred within the five years preceding
the
date hereof with respect to any Plan maintained by the Seller or any ERISA
Affiliate, and no reportable event (within the meaning of Section 4043 of
ERISA), notice of which has not been waived by the PBGC, has occurred or is
expected to occur with respect to any Plan maintained by the Seller or any
ERISA
Affiliate. The transactions contemplated by this Agreement will not result
in
liability to the Seller or the Buyer under Section 4069 of ERISA. No Title
IV
Plan or Plan subject to Section 302 of ERISA maintained by the Seller or any
ERISA Affiliate had an accumulated funding deficiency (within the meaning of
Section 302 of ERISA or Section 412 of the Code), whether or not waived, as
of
the most recently ended plan year of such Plan. None of the assets of the Seller
or any ERISA Affiliate is the subject of any Lien arising under Section 302(f)
of ERISA or Section 412(n) of the Code; neither the Seller nor any ERISA
Affiliate has been required to post any security under Section 307 of ERISA
or
Section 401(a)(29) of the Code relating to any Plan; and no fact or event exists
which could give rise to any such Lien or requirement to post any such security.
As of the Closing Date, no Plan which is a Title IV Plan will have an “unfunded
benefit liability” (within the meaning of Section 4001(a)(18) of ERISA) and no
Plan which is subject to Section 302 of ERISA will have an “accumulated funding
deficiency” (within the meaning of Section 302(a)(2) of ERISA).
4.17.8.
Tax Deductions. All contributions, premiums or payments (including all
employer contributions and, if applicable, employee salary reduction
contributions) required to be made, paid or accrued with respect to any Plan
have been made, paid or accrued on or before their due dates, including
extensions thereof. All such contributions have been fully deducted or in the
case of the current year will be deducted for income tax purposes and no such
deduction has been challenged or disallowed by any governmental or regulatory
authority, and no fact or event exists which could give rise to any such
challenge or disallowance.
4.18.
Interests in Customers, Suppliers, Etc. Except as set forth on
Schedule 4.18, no officer, director, or employee of the Seller, or any
parent, brother, sister, child or spouse of any such officer, director, key
executive or employee of the Seller (collectively, the “Related Group”), or any
Person controlled by anyone in the Related Group:
13
4.18.1.
owns, directly or indirectly, any interest in (excepting for ownership, directly
or indirectly, of less than 1% of the issued and outstanding shares of any
class
of securities of a publicly held and traded Seller), or is an officer, director,
employee, agent or consultant of, any Person which is, or is engaged in business
as, a competitor, lessor, lessee, supplier, distributor of the
Seller;
4.18.2.
owns, directly or indirectly, in whole or in part, any material tangible or
intangible property (including, but not limited to Intellectual Property),
that
the Seller used in the conduct of the Business, other than immaterial personal
items owned and used by employees at their work stations; or
4.18.3.
has any cause of action or other claim whatsoever against, or owes any amount
to
the Seller, except for claims in the ordinary course of business such as for
accrued vacation pay, accrued benefits under employee benefit plans, and similar
matters and agreements existing on the date hereof.
4.19.
No Changes Since the Balance Sheet Date. Since the Balance Sheet Date,
except as specifically stated on Schedule 4.19, the Seller has not (i)
incurred any liability or obligation of any nature (whether accrued, absolute,
contingent or otherwise), except in the ordinary course of business, (ii)
permitted any of its assets to be subjected to any Lien, (iii) sold, transferred
or otherwise disposed of any assets except in the ordinary course of business,
(iv) made any capital expenditure or commitment therefor which individually
or
in the aggregate exceeded $50,000; (v) declared or made any distributions on
any
equity interest or other equity or redeemed, purchased or otherwise acquired
any
other equity or any option, warrant or other right to purchase or acquire any
such equity, (vi) made any bonus or profit sharing distribution, (vii) increased
or prepaid its indebtedness for borrowed money, except current borrowings under
credit lines, or made any loan to any Person other than to any employee for
normal travel and expense advances, (viii) wrote down the value of any
work-in-process, or wrote off as uncollectible any notes or accounts receivable,
except write-downs and write-offs in the ordinary course of business, none
of
which individually or in the aggregate, were material to the Seller, (ix)
granted any increase in the rate of wages, salaries, bonuses or other
remuneration of any employee who, whether as a result of such increase or prior
thereto, received aggregate compensation from the Seller at an annual rate
of
$5,000 or more, or except in the ordinary course of business to any other
employees, (x) entered into any employment or exclusive consulting agreement
which is not cancelable by the Seller without penalty or other financial
obligation within 30 days, (xi) canceled or waived any claims or rights of
material value, (xii) made any change in any method of accounting procedures,
(xiii) otherwise conducted the Business or entered into any transaction, except
in the usual and ordinary manner and in the ordinary course of its business,
(xiv) amended or terminated any agreement which is material to the Business,
(xv) renewed, extended or modified any lease of real property or any lease
of
personal property, except in the ordinary course of business, (xvi) adopted,
amended or terminated any Plan or (xvii) agreed, whether or not in writing,
to
do any of the actions set forth in any of the above clauses.
4.20.
Company Controls. The Seller has not and no officer, authorized agent,
employee, or consultant has, directly or indirectly, used any corporate fund
for
unlawful contributions, gifts, or
other
unlawful expenses relating to political activity; made any unlawful payment
to
foreign or domestic government officials or employees or to foreign or domestic
political parties or campaigns from corporate funds; established or maintained
any unlawful or unrecorded fund of corporate monies or other assets; made any
false or fictitious entry on its books or records; participated in any
racketeering activity; or made any bribe, rebate, payoff, influence payment,
kickback, or other unlawful payment, or other payment of a similar or comparable
nature, to any Person, private or public, regardless of form, whether in money,
property, or services, to obtain favorable treatment in securing business or
to
obtain special concessions, or to pay for favorable treatment for business
secured or for special concessions already obtained.
14
4.21.
Brokers. Other than as listed on Schedule 4.21, no broker, finder,
agent or similar intermediary has acted on behalf of the Seller in connection
with this Agreement or the transactions contemplated hereby, and no brokerage
commissions, finder’s fees, consulting fees or similar fees or commissions are
payable by the Seller in connection therewith based on any agreement,
arrangement or understanding with any of them.
4.22.
Copies of Documents. The Seller has caused to be made available for
inspection and copying by the Buyer and its advisers, true, complete and correct
copies of all documents referred to in this ARTICLE 4 or in any Schedule.
4.23.
Inventory. The Inventory included in the Financial Statements consists
only of products of a quality and quantity usable and saleable in the ordinary
course of business. The Seller is not in possession of any Inventory not owned
by the Seller, including goods already sold.
4.24.
No Material Adverse Change. Except as disclosed on Schedule 4.24,
since the Balance Sheet Date, Seller has conducted its Business in the ordinary
course and there has not occurred:
4.24.1.
any material uninsured damage to, destruction or loss of any Asset;
4.24.2.
any material revaluation by the Seller of any of the Assets, including, without
limitation, writing down the value of Inventory;
4.24.3.
any sale or transfer of a material amount of the Assets, other than sales of
inventory in the ordinary course of business.
4.24.4.
any license, transfer, pledge, mortgage or other disposition of, or granting
of
a Lien on, any Asset material to the operation of the Business, except in the
ordinary course of business or except as may be discharged prior to the
Closing;
4.24.5.
any change in compensation payable to any employee other than in the ordinary
course of business;
4.24.6.
any change in the accounting methods, practices or policies used by the Seller,
except as required by applicable accounting authorities;
15
4.24.7.
any settlement or compromise of any material litigation or governmental
investigation involving the Business or any Asset; or
4.24.8.
any agreement, commitment or understanding, whether in writing or otherwise,
for
the Seller to take any of the actions specified in items 4.24.4, 4.24.5, 4.24.6
or 4.24.7 above.
4.25.
Employees; Labor Relations.
4.25.1.
Schedule 4.25.1 sets forth, as of the date hereof, the names of all
Persons employed by the Seller in the conduct of the Business (the “Seller
Employees”).
4.25.2.
With respect to the Business, the Seller has not received any written notice
of
any unfair labor practice complaints or any other action, suit, complaint,
charge, arbitration, inquiry, proceeding or investigation pending before the
National Labor Relations Board or any other agency having jurisdiction thereof
and, to the Seller’s knowledge, no such complaint has been threatened. The
Seller has not received any written notice of any activities or proceedings
of
any labor union (or representatives thereof) to organize any non union Seller
Employees, or of any strikes, slowdowns, work stoppages, lockouts or threats
thereof, by or with respect to any Seller Employees of the Seller and, to the
Seller’s knowledge, within the twelve (12) months prior to the date of this
Agreement, no such activities or proceedings are or were underway nor has the
Seller been the subject of any strikes, slowdowns, work stoppages, lockouts
or
threats thereof. With respect to the Seller Employees, except as set forth
on
the Schedule 4.25.2, there are no unsatisfied claims, grievances,
arbitration proceedings, workers’ compensation proceedings. The Seller is not a
party to or otherwise bound by, any consent decree with, or citation by, any
government agency relating to any Seller Employee or employment practices,
wages, hours, and terms and conditions of employment with respect to the
Business.
ARTICLE
5.
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
The
Buyer
hereby represents and warrants to the Seller, except as set forth on the
Schedule of Exceptions to Representations and Warranties attached hereto as
Exhibit ARTICLE 5 (the “Buyer Schedule of Exceptions”), the
following:
5.1.
Subsidiaries. The Buyer does not presently own or control, directly or
indirectly, any interest in any other corporation, association, or other
business entity. The Buyer is not a party to any joint venture, partnership,
or
similar arrangement.
5.2.
Organization, Good Standing, and Qualification. The Buyer is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Nevada, and has all requisite corporate power and authority
to carry on its business as now conducted. The Buyer is duly qualified to
transact business and is in good standing in each jurisdiction in which the
failure
so to qualify would have a Material Adverse Effect (as hereafter defined) on
the
Buyer’s business or properties.
16
5.3.
Capitalization and Voting Rights. The number of authorized, issued and
outstanding capital stock of the Buyer as of the date hereof is set forth in
Schedule 5.3. Except as disclosed in Schedule 5.3, no securities
of the Buyer are entitled to preemptive or similar rights, nor is any holder
of
securities of the Buyer entitled to preemptive or similar rights arising out
of
any agreement or understanding with the Buyer by virtue of any of the
Transaction Documents (defined hereinafter). Except as disclosed in Schedule
5.3, there are no outstanding options, warrants, script rights to subscribe
to, calls or commitments of any character whatsoever relating to, or securities,
except as a result of the purchase and sale of the Securities, or rights or
obligations convertible into or exchangeable for, or giving any Person (as
defined below) any right to subscribe for or acquire, any shares of capital
stock, or contracts, commitments, understandings, or arrangements by which
the
Buyer is or may become bound to issue additional shares of capital stock, or
securities or rights convertible or exchangeable into shares of capital
stock.
5.4.
Authorization. All corporate action on the part of the Buyer, its
officers, directors, and shareholders necessary for the authorization,
execution, and delivery of this Agreement and applicable assignment and
assumption documents (collectively, the “Transaction Documents”), the
performance of all obligations of the Buyer hereunder and thereunder and the
authorization, issuance (or reservation for issuance), and delivery of the
assumption documents being issued hereunder, has been taken or will be taken
prior to the Closing, and the Transaction Documents constitute valid and legally
binding obligations of the Buyer, enforceable in accordance with their
respective terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement of creditors’ rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies, and (iii) to the extent the indemnification provisions contained
in
the Transaction Documents may be limited by applicable federal or state laws.
5.5.
Filings, Consents and Approvals. Except as set forth on Schedule
5.5, the Buyer is not required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with, any
court or other federal, state, local or other governmental authority or other
Person in connection with the execution, delivery and performance by the Buyer
of the Transaction Documents.
5.6.
Litigation. There is no action, suit, proceeding, claim or investigation
pending or, to the knowledge of the Buyer, currently threatened against the
Buyer which questions the validity of the Transaction Documents, or the right
of
the Buyer to enter into any of them, or to consummate the transactions
contemplated hereby or thereby, or which might result, either individually
or in
the aggregate, in any material adverse changes in the assets, condition,
affairs, or prospects of the Buyer, financially or otherwise, or any change
in
the current equity ownership of the Buyer, nor is the Buyer aware that there
is
any basis for the foregoing. The foregoing includes, without limitation,
actions, pending or threatened (or any basis therefor known to the Buyer),
involving the prior employment of any of the Buyer’s employees, their use in
connection with the Buyer’s business of any information or techniques allegedly
proprietary to
any of
their former employers, or their obligations under any agreements with prior
employers. The Buyer is not a party or subject to the provisions of any order,
writ, injunction, judgment, or decree of any court or government agency or
instrumentality.
17
5.7.
Compliance with Other Instruments. The Buyer is not in violation or
default of any provisions of its Certificate of Incorporation or Bylaws, as
amended, or of any instrument, judgment, order, writ, decree, mortgage,
indenture, lease, license or contract to which it is a party or by which it
is
bound or, to its knowledge, of any provision of federal, state, or local
statute, rule, or regulation applicable to the Buyer, except as would not
reasonably be expected, singly or in the aggregate, to have a material adverse
effect. The execution, delivery, and performance of the Transaction Documents
and the consummation of the transactions contemplated thereby will not result
in
any such violation or be in conflict with or constitute, with or without the
passage of time and giving of notice, either a default under any such provision,
instrument, judgment, order, writ, decree or contract, or an event which results
in the creation of any lien, charge, or encumbrance upon any assets of the
Buyer
or the suspension, revocation, impairment, forfeiture, or non-renewal of any
material permit, license, authorization, or approval applicable to the Buyer,
its business or operations, or any of its assets or properties, except as would
not reasonably be expected, singly or in the aggregate, to have a material
adverse effect.
5.8.
Permits. The Buyer has all material franchises, permits, licenses, and
any similar authority necessary for the conduct of its business as now being
conducted by it, the lack of which could materially and adversely affect the
business, properties, prospects, or financial condition of the Buyer and
believes it can obtain, without undue burden or expense, any similar authority
for the conduct of its business as planned to be conducted. The Buyer is not
in
default in any material respect under any of such franchises, permits, licenses,
or other similar authority.
5.9.
Compliance with Laws. The conduct of business by the Buyer as presently
and proposed to be conducted is not subject to continuing oversight,
supervision, regulation or examination by any governmental official or body
of
the United States or any other jurisdiction wherein the Buyer conducts or
proposes to conduct such business, except such regulation as is applicable
to
commercial enterprises generally. The Buyer has not received any notice of
any
violation of or noncompliance with, any federal, state, local or foreign laws,
ordinances, regulations and orders (including, without limitation, those
relating to environmental protection, occupational safety and health, federal
securities laws, equal employment opportunity, consumer protection, credit
reporting, "truth-in-lending", and warranties and trade practices) applicable
to
its business, the violation of, or noncompliance with, which would have a
materially adverse effect on either the Buyer's business or operations, and
the
Buyer knows of no facts or set of circumstances which would give rise to such
a
notice.
5.10.
Disclosure. This Agreement and any other statements or certificates made
or delivered in connection herewith or therewith, when taken together with
the
Disclosure Materials (as defined below), do not contain any untrue statement
of
a material fact or omits to state a material fact necessary to make the
statements herein or therein not misleading.
18
5.11.
Brokers. No broker, finder, agent or similar intermediary has acted on
behalf of the Buyer in connection with this Agreement or the transactions
contemplated hereby, and no brokerage commissions, finder’s fees or similar fees
or commissions are payable by the Buyer in connection therewith based on any
agreement, arrangement or understanding with any of them.
5.12.
No Misrepresentation. No representation or warranty by the Buyer in this
Agreement
(including Schedules and Exhibits) contains any untrue statement of a material
fact or omits to state a material fact necessary to make the statements
contained in this Agreement not misleading.
ARTICLE
6.
COVENANTS
OF THE SELLER
The
Seller covenants and agrees with the Buyer as follows:
6.1.
Conduct of Business Prior to the Closing Date. From and after the date
hereof until the Closing Date or earlier termination of this Agreement, Seller
shall:
6.1.1.
Carry on the Business in substantially the same manner as it has heretofore
been
conducted;
6.1.2.
Maintain and keep the Assets in as reasonable condition and repair, reasonable
wear and tear excepted, as the condition and repair the Assets are in as of
the
date hereof;
6.1.3.
Not sell, lease, pledge, mortgage or otherwise dispose of or encumber any of
the
Assets except for the sale, lease, pledge, mortgage or disposal or encumbrance
of any of the Assets, including Inventory, in the ordinary course of business
which would not, individually or in the aggregate, be material to the operation
of the Business.
6.1.4.
Perform all of its obligations under the Contracts and Assigned
Leases;
6.1.5.
Not (i) enter into any contract outside the ordinary course of business, (ii)
modify or change any material contract, (iii) cancel any debts or waive any
claims or rights where such cancellation or waiver would reasonably be expected
to have a material adverse effect, or (iv) make any loan to, or enter into
any
business transaction, agreement, arrangement or understanding of any other
nature with, any employee of the Business or any officer or director of the
Seller or any affiliate or associate of any such officer or
director;
6.1.6.
Not (i) grant any increases in wages, salaries or benefits of any of the Seller
Employees except increases in the ordinary course of business in accordance
with
the Seller’s existing policies, (ii) enter into any employment agreements with
respect to any employees of the Business, (iii) pay or agree to pay any pension,
retirement allowance or other employee benefit not required by any existing
plan, agreement or arrangement to any officer or employee of the Business,
whether past or present, or (iv) with respect to the Seller’s Employees, commit
to any additional pension, profit-sharing, bonus, incentive, deferred
compensation,
group insurance, severance pay, retirement or other employee benefit plan,
agreement or arrangement, or to any employment or consulting agreement with
or
for the benefit of any Seller Employee, or to terminate or amend any of such
plans or any of such agreements in existence on the date of this
Agreement;
19
6.1.7.
Not take any action that would prevent the transfer of the Assets to the Buyer
at the Closing, pursuant to the terms of this Agreement, free and clear of
all
Liens;
6.1.8.
Maintain its books, accounts and records with respect to the Business and the
Assets in the usual, regular and ordinary manner, and comply with all
Laws;
6.1.9.
Keep and maintain all permits in full force and effect, continue their business
pursuant to such permits and take all steps necessary to meet requirements
on
pending applications for permits;
6.1.10.
Continue to operate and maintain the Business and the Assets in accordance
with
applicable Laws;
6.1.11.
Use commercially reasonable efforts consistent with sound business judgment
to
preserve intact its present business and organization, to retain the services
of
its present employees, to preserve its relationships with its customers,
suppliers and others having business relationships with it.
6.2.
Access by the Buyer to Properties and Records; Furnishing Information.
Following the date hereof, the Seller will make available to the Buyer and
its
representatives, from time to time as the Buyer may reasonably request, copies
of all records, documentation and other data retained by the Seller, consistent
with the Seller’s document retention policies and past practice, relating to the
Business, the Assets and the Assumed Liabilities as may be reasonably required
to enable the Buyer to defend against or assert claims related to or arising
from ownership of the Assets, the assumption of the Assumed Liabilities and
to
handle tax and financial audits involving the Business and otherwise cooperate
and assist, to the extent reasonably requested by the Buyer, with Buyer’s
investigation of the properties, assets and financial condition related to
the
Seller and involving the Business; provided, however, that the Buyer agrees
to
hold such records in confidence, except to the extent required to defend or
assert such claims and to handle such audits, and to return the same to the
Seller promptly upon the conclusion of their use by the Buyer for the purposes
herein specified.
6.3.
Third-Party Consents. Following the date hereof, the Seller shall use
commercially reasonable efforts to obtain as expeditiously as possible all
consents required to consummate the transactions contemplated under this
Agreement.
6.4.
Transfer of Warranties. In the event that any of the Assets are under any
warranty or vendor’s indemnification agreement from the manufacturer or the
original seller thereof, the Buyer may be entitled to the benefit of the
warranty or vendor’s indemnification agreement to the extent that the warranty
or vendor’s indemnification agreement is available to the transferee,
and
the
Seller shall, at Buyer’s expense, execute such instruments as may be required to
transfer the warranty to the Buyer.
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6.5.
Negotiations with Third Parties. From the date hereof through the Closing
Date or earlier termination of this Agreement, neither the Seller nor any of
their respective officers, directors, agents or employees will initiate or
solicit proposals or conduct negotiations for the sale, transfer or other
disposition of the Business or any of the Assets with any prospective purchasers
other than the Buyer.
6.6.
Insurance. The Seller shall maintain in full force and effect all
policies of insurance in effect in connection with the Assets and the Business
on the date of this Agreement.
6.7.
Delivery of Financial Statements. Seller shall, at the cost of Buyer,
cooperate in providing Buyer with such accounting records and reporting
(including audited financial statements for such time period as Buyer may
request) as Buyer may reasonably need to pursue business opportunities,
including without limitation, acquisition transactions. This obligation shall
survive the Closing.
ARTICLE
7.
CONDITIONS
TO OBLIGATIONS OF THE BUYER
The
obligations of the Buyer under this Agreement are subject to the satisfaction
at
or prior to the Closing Date of the following conditions, any of which may
be
waived in whole or in part by the Buyer in its sole discretion by delivery
of a
written notice to that effect to the Seller, which shall constitute a release
by
the Buyer with respect to such condition.
7.1.
Assigned Leases; Estoppel Certificates. As of the Closing Date, the
Seller shall have obtained a fully executed Estoppel Certificate for each
Assigned Lease listed on Schedule 7.1, attached hereto. Each Estoppel
Certificate shall be in a form reasonably satisfactory to the Buyer and shall
provide that (i) the subject Lease is in full force and effect, (ii) all rent
is
current, and (iii) there are no other outstanding, past due obligations owed
by
the Seller. Seller will use its best efforts to obtain the Estoppel
Certificates. The failure to obtain one or more of such Estoppel Certificates
shall be a condition precedent to Buyer’s obligations at the
Closing.
7.2.
Corporate Approvals. As of the Closing Date, the Seller shall have
secured all authorizations made necessary by applicable corporate Laws and
the
Seller’s organizational documents (the “Corporate Approvals”).
7.3.
Non-Competition Agreements. As of the Closing Date, the Buyer and each of
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Block and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall enter into two (2)
year non-competition agreements, all of which shall be in the form attached
as
Exhibit “A” (the “Non-Competition Agreements”).
7.4.
No Litigation. At the Closing Date, no litigation, proceeding,
investigation, or inquiry shall be pending or to Seller’s knowledge, threatened
before any court or other governmental
authority to enjoin or prevent the consummation of the transactions contemplated
by this Agreement, or involving any of the Assets.
21
7.5.
No Casualty. Prior to the Closing Date, there shall not have occurred any
single uninsured casualty in or to any of the Assets as a result of which the
monetary amount of damage or destruction totals $25,000 or a lesser amount
if
such damage or destruction has or would reasonably be expected to have a
material adverse effect, unless the Seller agrees to replace the damaged or
destroyed Assets (at no cost to the Buyer) or unless the parties mutually agree
to an adjustment in the Purchase Price.
7.6.
Truth of Representations and Warranties. The representations and
warranties of the Seller contained herein shall be true and correct in all
material respects at and as of the Closing as if made as of the Closing. The
Seller shall furnish the Buyer with appropriate officers’ certificates, dated
the Closing Date, to that effect.
7.7.
Performance by the Seller. All of the covenants and agreements required
by this Agreement to have been performed and complied with by the Seller shall
have been performed and complied with by the Seller in all material respects
prior to or on the Closing Date. The Seller shall have delivered to the Buyer
appropriate officers’ certificates to that effect dated the Closing
Date.
7.8.
No Material Adverse Change. There shall have not been any adverse change
in the financial condition or property of the Business as such is currently
conducted, the effect of which is materially adverse to the value of the Assets
taken as a whole or materially adverse to the Business, the condition (financial
or otherwise) or results of operations of the Business, in each case taken
as a
whole.
7.9.
Other Deliverables. The Seller shall have delivered to the Buyer those
items set forth in Section 9.3 hereof.
ARTICLE
8.
CONDITIONS
TO OBLIGATIONS OF THE SELLER
The
obligations of the Seller under this Agreement are subject to the satisfaction
at or prior to the Closing Date of the following conditions, any of which may
be
waived in whole or in part by the Seller in its sole discretion by delivery
of a
written notice to that effect to the Buyer, which shall constitute a release
by
the Seller with respect to such condition.
8.1.
No Litigation. At the Closing Date, no litigation, proceeding,
investigation, or inquiry shall be pending or threatened to enjoin or prevent
the consummation of the transactions contemplated by this
Agreement.
8.2.
Truth of Representations and Warranties. The representations and
warranties of the Buyer, contained herein, shall be true and correct in all
material respects at and as of the Closing as if made as of the Closing. The
Buyer shall have delivered to the Seller an appropriate officer’s certificate to
that effect dated the Closing Date.
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8.3.
Performance by the Buyer. All of the covenants and agreements required by
this Agreement to have been performed and complied with by the Buyer shall
have
been performed and complied with by the Buyer in all material respects prior
to
or on the Closing Date. The Buyer shall have delivered to the Seller an
appropriate officer’s certificate to that effect dated the Closing
Date.
8.4.
Corporate Approvals. As of the Closing Date, Seller shall have secured
all of the Corporate Approvals.
8.5.
Other Deliverables. The Buyer shall have delivered to the Seller those
items set forth in Section 9.2 hereof, duly executed by the
Buyer.
ARTICLE
9.
CLOSING
9.1.
The Closing Date. The Closing shall take place at the offices of ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, at 10:00 a.m., on or before June 1, 2005, or at
such other place, date and time as the parties may agree upon in writing. Such
date is herein called the “Closing Date.” If all of the conditions specified in
ARTICLE 8 and ARTICLE 7 shall have been fulfilled or waived in
writing by the Buyer or by the Seller, as the case may be, on or by the Closing
Date, then, on the Closing Date, the Buyer and the Seller shall make the
deliveries set forth in Sections 9.2 and 9.3,
respectively.
9.2.
Deliveries by the Buyer. Subject to the terms and conditions of this
Agreement, at the Closing, the Buyer shall deliver or cause to be delivered
to
the Seller:
9.2.1.
the Purchase Price as specified in ARTICLE 3, above;
9.2.2.
a
fully executed Assignment and Assumption Agreement in the form set forth on
Exhibit “B”, attached hereto;
9.2.3.
fully executed assignments of leases (the “Assignments of Leases”) in the form
set forth on Exhibit “C”, attached hereto, for each of the Assigned
Leases.
9.2.4.
resolutions of the Board of Directors of the Buyer, certified by an officer
of
the Buyer, authorizing the execution of this Agreement and the transactions
contemplated hereby and thereby;
9.2.5.
the certificates referred to in Sections 8.2 and 8.3;
and
9.2.6.
a
certificate dated within thirty (30) days prior to the Closing Date from the
Secretary of State of the state of organization of Buyer, certifying that the
Buyer is validly existing and in good standing under the laws of said state;
23
9.3.
Deliveries by the Seller. Subject to the terms and conditions of this
Agreement, at the Closing, the Seller shall deliver or cause to be delivered
to
the Buyer:
9.3.1.
a
fully executed general assignment and ▇▇▇▇ of sale in the form set forth as
Exhibit “D”;
9.3.2.
a
fully executed Assignment and Assumption Agreement;
9.3.3.
the Assignments of Leases;
9.3.4.
fully executed Estoppel Certificates as required by Section
7.1.
9.3.5.
fully executed Non-Competition Agreements;
9.3.6.
resolutions of the Seller, certified by an officer of the Seller, authorizing
the execution of this Agreement and the transactions contemplated hereby and
thereby;
9.3.7.
resolutions of the members of the Seller, authorizing the execution of this
Agreement and the transactions contemplated hereby and thereby;
9.3.8.
the certificates referred to in Section 7.6 and 7.7;
9.3.9.
a
certificate dated within thirty (30) days prior to the Closing Date from the
Secretary of State of the State of New York certifying that Seller is validly
existing and in good standing under the laws of the State of New York;
9.3.10.
a
fully executed Sub-License, Development and Technology Transfer Agreement for
Versadial® Delivery Pump between the Seller and Buyer;
9.4.
Rights to Possession. The Buyer’s right to possession of the Assets shall
commence at the close of business on the Closing Date, and the Buyer shall
take
possession of the Assets at the places they are located on the Closing
Date.
ARTICLE
10.
SALES
AND TRANSFER TAXES
Buyer
shall be responsible for and shall pay all sales, bulk sales, use, transfer
(or
stamp duty) and documentary taxes and recording and filing fees, if any,
including, without limitation, all state or county sales taxes and any other
charges applicable to the transfer of the Assets and the assumption of the
Assumed Liabilities provided for by this Agreement.
24
ARTICLE
11.
SURVIVAL
OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS
11.1.
Survival of Representatives and Warranties. The representations,
warranties, covenants and agreements of each of the Sellers and the Buyer shall
survive the Closing for a period of eighteen (18) months.
11.2.
Notice of Claim. In the event notice of any claim for indemnification is
given (as provided for in ARTICLE 12 (Indemnification)) within the applicable
survival period and not resolved within such period, the representations,
warranties, covenants and agreements that are the subject of such
indemnification claim shall survive until such time as such claim or claims
are
finally resolved but only with respect to the specific unresolved claim or
claims made within the applicable survival period.
ARTICLE
12.
INDEMNIFICATION
12.1.
Indemnification of the Buyer Indemnified Parties. Subject to ARTICLE
11 (Survival of Representations, Warranties, Covenants and Agreements) and
the limitations contained in Section 12.4.1 and 12.5, the Seller hereby
agrees, on a joint and several basis to indemnify the Buyer and its affiliates,
stockholders, officers, directors, employees, agents, representatives and
successors and assigns (individually a “Buyer Indemnified Party” and
collectively the “Buyer Indemnified Parties”) against, and to protect, save and
keep harmless the Buyer Indemnified Parties from, and to pay on behalf of or
reimburse the Buyer Indemnified Parties as and when incurred for, any and all
liabilities (including liabilities for Taxes), obligations, losses, damages,
penalties, demands, claims, actions, suits, judgments, settlements, penalties,
interest, out-of-pocket costs, expenses and disbursements (including reasonable
costs of investigation, and reasonable attorneys’, accountants’ and expert
witnesses’ fees) of whatever kind and nature (collectively, “Losses”), incurred
by any Buyer Indemnified Party as a consequence of, in connection with, incident
to, resulting from or arising out of or in any way related to or by virtue
of:
(a) (i) in the case of any of the Seller, any misrepresentation, inaccuracy
or
breach of any warranty or representation contained in Sections 4.2
through 4.25 or in any certificate delivered by any of such parties with
respect to such sections at the Closing, (ii) in the case of the Seller, any
action, demand, proceeding, investigation or claim by any third party (including
any governmental or regulatory authority) against or affecting any Buyer
Indemnified Party which may give rise to or evidence the existence of or relate
to a misrepresentation or breach of any of the representations and warranties
of
such person contained in ARTICLE 4 hereof or in any certificate delivered
by Seller at the Closing; (c) in the case of the Seller, any breach or failure
by such person to comply with, perform or discharge any obligation, agreement
or
covenant by such Seller contained in this Agreement; and (d) in the case of
the
Seller, any liability or obligation or any assertion against any Buyer
Indemnified Party, arising out of or relating, directly or indirectly, in whole
or in part, out of the conduct of the Business prior to the Closing or any
of
the Retained Liabilities.
12.2.
Indemnification of the Seller Indemnified Parties. Subject to ARTICLE
11 (Survival of Representations, Warranties, Covenants and Agreements) and
the limitations set forth in Section 12.4.2, the Buyer hereby agrees to
indemnify the Seller and its affiliates, stockholders, officers, directors,
shareholders employees, agents, representatives and successors, permitted
assignees (individually, a “Seller Indemnified Party” and collectively, the
“Seller Indemnified
Parties”) against, and to protect, save and keep harmless the Seller Indemnified
Parties from, and to pay on behalf of or reimburse the Seller Indemnified
Parties as and when incurred for, any and all Losses that may be imposed on
or
incurred by the Seller Indemnified Parties as a consequence of, in connection
with, incident to, resulting from or arising out of or in any way related to
or
by virtue of: (a) any misrepresentation, inaccuracy or breach of any warranty
or
representation of the Buyer contained in ARTICLE 5 hereof or in any
certificate delivered by the Buyer at the Closing; or (b) any action, demand,
proceeding, investigation or claim by any third party (including any
governmental or regulatory authority) against any Seller Indemnified Party
which
may give rise to or evidence the existence of or relate to a misrepresentation
or breach of any of the representations and warranties of the Buyer contained
in
ARTICLE 5 hereof or in any certificate delivered by the Buyer at the
Closing; (c) any breach or failure by the Buyer to comply with, perform or
discharge any obligation, agreement or covenant by the Buyer contained in this
Agreement or (d) any liability or obligation or any assertion against any Seller
Indemnified Party, arising out of or relating directly to, the conduct of the
Seller’s business after the Closing to the extent and only to the extent such
liability or obligation relates to the Assumed Liabilities.
25
12.3.
Indemnification Procedures.
12.3.1.
Non-Third Party Claims
12.3.1.1.
In the event that any Person entitled to indemnification under this Agreement
(an “Indemnified Party”) asserts a claim for indemnification which does not
involve a Third Party Claim (as defined in Section 12.3.2) (the
“Non-Third Party Claim”, against which a Person is required to provide
indemnification under this Agreement (an “Indemnifying Party”, the Indemnified
Party shall give written notice to the Indemnifying Party (the “Non-Third Party
Claim Notice”, which Non-Third Party Claim Notice shall (i) describe the claim
in reasonable detail, and (ii) indicate the amount (estimated, if necessary,
and
to the extent feasible) of the Losses that have been or may be suffered by
the
Indemnified Party.
12.3.1.2.
The Indemnifying Party may acknowledge and agree by written notice (the
“Non-Third Party Acknowledgment of Liability”) to the Indemnified Party to
satisfy the Non-Third Party Claim within thirty (30) days of
receipt of the Non-Third Party Claim Notice. In the event that the Indemnifying
Party disputes the Non-Third Party Claim, the Indemnifying Party shall provide
written notice of such dispute (the “Non-Third Party Dispute Notice”) to the
Indemnified Party within thirty (30) days of receipt of the
Non-Third Party Claim Notice (the “Non-Third Party Dispute Period”), setting
forth a reasonable basis of such dispute. In the event that the Indemnifying
Party shall fail to deliver the Non-Third Party Acknowledgment of Liability
or
Non-Third Party Dispute Notice within the Non-Third Party Dispute Period, the
Indemnifying Party shall be deemed to have acknowledged and agreed to pay the
Non-Third Party Claim in full and to have waived any right to dispute the
Non-Third Party Claim. Once the Indemnifying Party has acknowledged and agreed
to pay any Non-Third Party Claim pursuant to this Section, or once any
dispute under this Section has been finally resolved in favor of
indemnification by a court or other tribunal of competent jurisdiction, the
Indemnifying Party shall pay the amount of such Non-Third Party Claim to the
Indemnified Party
within ten (10) days of the date of acknowledgment or resolution,
as the case may be, to such account and in such manner as is designated in
writing by the Indemnified Party.
26
12.3.2.
Third Party Claims.
12.3.2.1.
In the event that any Indemnified Party asserts a claim for indemnification
or
receives notice of the assertion of any claim or of the commencement of any
action or proceeding by any Person who is not a party to this Agreement or
an
affiliate of a party to this Agreement (a “Third Party Claim”) in respect of
which such Indemnified Party is entitled to indemnification by an Indemnifying
Party under this Agreement, the Indemnified Party shall give written notice
to
the Indemnifying Party (the “Third Party Claims Notice”) within ten
(10) Business Days after learning of such Third Party Claim (or within
such shorter time as may be necessary to give the Indemnifying Party a
reasonable opportunity to respond to such claim), together with a statement
specifying the basis of such Third Party Claim. The Third Party Claims Notice
shall (i) describe the claim in reasonable detail, and (ii) indicate the amount
(estimated, if necessary, and to the extent feasible) of the Losses that have
been or may be suffered by the Indemnified Party. The Indemnifying Party must
provide written notice to the Indemnified Party that it is either (i) assuming
responsibility for the Third Party Claim or (ii) disputing the claim for
indemnification against it (the “Indemnification Notice”) . The Indemnification
Notice must be provided by the Indemnifying Party to the Indemnified Party
with
ten (10) days after receipt of the Third Party Claims Notice or
within such shorter time as may be necessary to give the Indemnified Party
a
reasonable opportunity to respond to such Third Party Claim (the
“Indemnification Notice Period”) .
12.3.2.2.
If the Indemnifying Party provides an Indemnification Notice to the Indemnified
Party within the Indemnification Notice Period that it assumes responsibility
for the Third Party Claim, the Indemnifying Party shall conduct at its expense
the defense against such Third Party Claim in its own name, or if necessary
in
the name of the Indemnified Party. The Indemnification Notice shall specify
the
counsel it will appoint to defend such claim (“Defense Counsel”);
provided, however, that the Indemnified Party shall have the right
to approve the Defense Counsel, which approval shall not be unreasonably
withheld or delayed. In the event that the Indemnifying Party fails to give
the
Indemnification Notice within the Indemnification Notice Period, the Indemnified
Party shall have the right to conduct the defense and to compromise and settle
such Third Party Claim without the prior consent of the Indemnifying Party
and
the Indemnifying Party will be liable for all costs, expenses, settlement
amounts or other Losses paid or incurred in connection therewith.
12.3.2.3.
In the event that the Indemnifying Party disputes the claim for indemnification
against it, such Indemnifying Party shall notify the Indemnified Party to such
effect within ten (10) days after receipt of the Third Party
Claims Notice (or within such shorter time as may be necessary to give the
Indemnified Party a reasonable opportunity to respond to such Third Party Claim)
by delivering written notice thereof to the Indemnified Party. In such event,
the Indemnified Party shall have the right to conduct the defense and to
compromise and settle such Third Party Claim, without the prior consent of
the
Indemnifying Party. Once such dispute has been finally resolved in favor of
indemnification by a court or other tribunal of competent jurisdiction or by
mutual agreement of the Indemnified Party and Indemnifying Party, the
Indemnifying Party shall within ten (10) days of the date of such
resolution or agreement, pay to the Indemnified Party all Losses paid or
incurred by the Indemnified Party in connection therewith.
27
12.3.2.4.
In the event that the Indemnifying Party delivers an Indemnification
Notice pursuant to which it elects to conduct the defense of the Third Party
Claim, the Indemnifying Party shall be entitled to have the exclusive control
over the defense of the Third Party Claim and the Indemnified Party will
cooperate in good faith with and make available to the Indemnifying Party such
assistance and materials as it may reasonably request, all at the expense of
the
Indemnifying Party. The Indemnified Party shall have the right at its expense
to
participate in the defense assisted by counsel of its own choosing. The
Indemnifying Party will not settle the Third Party Claim or cease to defend
against any Third Party Claim as to which it has delivered an Indemnification
Notice (as to which it has assumed responsibility for the Third Party Claim),
without the prior written consent of the Indemnified Party, which consent will
not be unreasonably withheld or delayed; provided, however, such
consent may be withheld for any reason if, as a result of such settlement or
cessation of defense, (i) injunctive relief or specific performance would be
imposed against the Indemnified Party, or (ii) such settlement or cessation
would lead to liability or create any financial or other obligation on the
part
of the Indemnified Party for which the Indemnified Party is not entitled to
indemnification hereunder.
12.3.2.5.
If an Indemnified Party refuses to consent to a bona fide offer of settlement
which the Indemnifying Party wishes to accept, which provides for a full release
of the Indemnified Party and its affiliates relating to the Third Party Claims
underlying the offer of settlement and solely for a monetary payment, the
Indemnified Party may continue to pursue such matter, free of any participation
by the Indemnifying Party, at the sole expense of the Indemnified Party. In
such
an event, the obligation of the Indemnifying Party shall be limited to the
amount of the offer of settlement which the Indemnified Party refused to accept
plus the reasonable costs and expenses of the Indemnified Party incurred prior
to the date the Indemnifying Party notified the Indemnified Party of the offer
of settlement.
12.3.2.6.
Notwithstanding Section 12.3.2.5 above, the Indemnifying Party shall not be
entitled to control, but may participate in, and the Indemnified Party shall
be
entitled to have sole control over, the defense or settlement of (x) that part
of any Third Party Claim (i) that seeks a temporary restraining order, a
preliminary or permanent injunction or specific performance against the
Indemnified Party, or (ii) to the extent such Third Party Claim involves
criminal allegations against the Indemnified Party or (y) the entire Third
Party
Claim (i) if such Third Party Claim would impose liability on the part of the
Indemnified Party in an amount which is greater than the amount as to which
the
Indemnified Party is entitled to indemnification under this Agreement or (ii)
that if unsuccessful, would set a precedent that would have a material adverse
effect on, the business or financial condition of the Indemnified Party. In
the
event the Indemnified Party retains control of the Third Party Claim, the
Indemnified Party will not settle the subject claim without the prior written
consent of the Indemnifying Party, which consent will not be unreasonably
withheld or delayed.
28
12.3.2.7.
A failure by an Indemnified Party to give timely, complete or accurate notice
as
provided in this Section will not affect the rights or obligations of any party
hereunder except and only to the extent that, as a result of such failure,
any
party entitled to receive such notice was deprived of its right to recover
any
payment under its applicable insurance coverage or was otherwise directly and
materially damaged as a result of such failure to give timely
notice.
12.4.
Limitations On and Other Matters Regarding Indemnification.
12.4.1.
Termination of Indemnification Obligations of Seller Subject to
Sections 12.5 and 12.6, the obligation of Seller to indemnify
under Section 12.1 hereof shall terminate on the date that is eighteen
(18) months following the Closing Date, except as to matters as to which the
Buyer Indemnified Party has made a claim for indemnification on or prior to
such
date, in which case the right to indemnification with respect thereto shall
survive the expiration of such period until such claim for indemnification
is
finally resolved and any obligations with respect thereto are fully
satisfied.
12.4.2.
Termination of Indemnification Obligations of the Buyer Subject to
Section 12.6, the obligation of the Buyer to indemnify under Section
12.2 hereof shall terminate on the date that is eighteen (18) months
following the Closing Date, except as to matters as to which any Seller
Indemnified Party has made a claim for indemnification on or prior to such
date,
in which case the right to indemnification with respect thereto shall survive
such period until such claim for indemnification is finally resolved and any
obligations with respect thereto are fully satisfied.
12.5.
Indemnity Cushion and Cap.
12.5.1.
Subject to Section 12.6, the Seller shall not have any liability to any
Buyer Indemnified Party with respect to Losses arising out of any of the matters
referred to in Section 12.1 until such time as the amount of such
liability shall exceed $25,000 in the aggregate.
12.5.2.
Subject to Section 12.6, the Buyer shall not have any liability to any
Seller Indemnified Party with respect to Losses arising out of any of the
matters referred to in Section 12.2 until such time as the amount of such
liability shall exceed $25,000 in the aggregate.
12.5.3.
Subject to Section 12.6, the maximum liability of the Seller to all Buyer
Indemnified Parties with respect to all Losses arising out of any of the matters
referred to in Section 12.1 shall not exceed $250,000 in the
aggregate.
12.5.4.
Subject to Section 12.6, the maximum liability of the Buyer to all Seller
Indemnified Parties with respect to all Losses arising out of any of the matters
referred to in Section 12.2 shall not exceed $250,000 in the
aggregate.
29
12.6.
Limitations.
12.6.1.
The limitations set forth above in Section 12.5 shall in no event (a)
apply to any Losses incurred by a Buyer Indemnified Party which relate, directly
or indirectly, to (i) any fraudulent acts committed by Seller, or (y) the
covenant contained in the last sentence of ARTICLE 14, or (b) apply to any
Losses incurred by a Seller Indemnified Party which relate, directly or
indirectly, to any fraudulent acts committed by the Buyer.
12.6.2.
The limitations set forth in Section 12.4.1 shall not apply to any breach
of a representation or warranty contained in Sections 4.1 (first sentence
only), 4.9, 4.13 or 4.16, all of which shall survive until
the expiration of the applicable statute of limitations, with respect to such
claim.
12.6.3.
The limitations set forth in Section 12.4.2 shall not apply to any breach
of a representation or warranty contained in Sections 5.1 (first sentence
only), 5.9, or 5.11, all of which shall survive until the expiration of
the applicable statute of limitations, with respect to such claim.
ARTICLE
13.
TERMINATION
13.1.
Grounds. Anything herein or elsewhere to the contrary notwithstanding,
this Agreement may be terminated and the transactions contemplated hereby
abandoned under any of the following circumstances:
13.1.1.
At any time (by written notice delivered to the other party) prior to the
Closing:
13.1.1.1.
By the Buyer if the conditions set forth in ARTICLE 7 of this Agreement
are, in its sole discretion, unlikely to occur on or before the Closing Date
(provided that the right to terminate this Agreement under this Section
shall not be available to the Buyer if its breach under this Agreement has
been
the cause of the condition being unlikely to occur);
13.1.1.2.
By the Seller if the conditions set forth in ARTICLE 8 of this Agreement
are, in its sole discretion, unlikely to occur on or before the Closing Date
(provided that the right to terminate this Agreement under this Section
shall not be available to the Seller if its breach under this Agreement has
been
the cause of the condition being unlikely to occur);
13.1.1.3.
By the Seller or the Buyer if the Closing has not occurred on or prior to the
Closing Date, unless the absence of such occurrence shall be due to the delay
or
failure of the party seeking to terminate this Agreement (or its subsidiaries
or
affiliates) to perform in all material respects each of its obligations under
this Agreement required to be performed by it at or prior to the Closing Date;
13.1.1.4.
By either the Buyer or the Seller, if a court of competent jurisdiction or
governmental authority shall have issued an order, decree or ruling or taken
any
other action, in each case permanently restraining, enjoining or otherwise
prohibiting the transactions
contemplated by this Agreement and through no failure, delay or fault of or
breach by the terminating party, and such order, decree, ruling or other action
shall have become final and nonappealable;
30
13.1.2.
At any time by the mutual written consent of both the Buyer and the
Seller.
13.2.
Effect.
13.2.1.
If any of the conditions to the obligations of the Buyer in ARTICLE 7 or
of the Seller in ARTICLE 8 have not been satisfied on or prior to the
Closing Date, the Buyer or the Seller, as the case may be, shall have the right
either (i) to terminate this Agreement pursuant to, and with liability allocated
as set forth in this ARTICLE 13, or (ii) to waive and release their respective
conditions and to proceed with the Closing and the consummation of the
transactions contemplated by this Agreement without liability or further
obligation with respect to the nonfulfillment of such condition.
13.2.2.
In the event that this Agreement is terminated as permitted by Section
13.1, all obligations of the Seller and the Buyer hereunder shall terminate
without liability or further obligations.
13.2.3.
Notwithstanding the foregoing, any confidentiality agreement entered into by
the
parties, and any other agreements between the parties that do not expressly
provide for their termination, shall survive the termination of this
Agreement.
ARTICLE
14.
EXPENSES
Subject
to ARTICLE 10 (Sales and Transfer Taxes), whether or not the transactions
contemplated hereby are consummated, the Buyer will, except in the case of
any
breach of the terms and provisions of this Agreement for which either the Buyer
or the Seller, as the case may be, may be entitled to indemnification under
ARTICLE 12 (Indemnification) hereof, pay all expenses, income and other taxes
and costs (including, without limitation, the commissions, fees, disbursements
and expenses of its investment bankers, attorneys, accountants and consultants)
incurred by the Parties in negotiating, preparing, closing and carrying out
this
Agreement and the transactions contemplated hereby and thereby.
ARTICLE
15.
MAINTENANCE
OF BOOKS AND RECORDS - ACCOUNTINGS
15.1.
Subsequent to the closing, Buyer will, for a period of seven (7) years, maintain
all books and records delivered or turned over to Buyer by Seller, in connection
with the transactions contemplated by this agreement. Seller, and its
representatives shall have access to such books and records (including the
right
to copy and make extracts) upon reasonable notice to Buyer, during business
hours, in connection with, among other things, tax return preparation,
filings
and audits. Buyer shall reasonably cooperate with Seller and assist Seller
with
regard to Seller’s endeavors under this Article.
31
15.2.
Seller shall cooperate in providing Buyer with such accounting records and
reporting as Buyer may reasonably need to pursue business opportunities,
including without limitation, acquisition transactions.
ARTICLE
16.
EMPLOYEES
The
Buyer
shall have the right, but is not obligated to offer employment to some, or
all
of the Seller’s Employees upon such terms and conditions acceptable to the Buyer
in its sole discretion.
ARTICLE
17.
RULES
OF CONSTRUCTION AND DEFINITIONS
17.1.
Rules of Construction: The following rules of construction apply to this
Agreement:
17.1.1.
The singular includes the plural and the plural includes the singular;
“include”
and “including” are not limiting;
17.1.2.
“hereby”, “herein”, “hereof”, “hereunder”, “the Agreement”, “this Agreement”
or any like words refer to this Agreement;
17.1.3.
A
reference to a law includes any amendment or modification to such law and any
rules or regulations issued thereunder or any law enacted in substitution or
replacement therefor;
17.1.
4.
A reference herein to a Section, Exhibit, Attachment, Appendix or Schedule
without further reference is a reference to the relevant Section, Exhibit,
Attachment, Appendix or Schedule of this Agreement;
17.1.5.
Any right may be exercised at any time and from time to time unless
specified
otherwise herein;
17.1.6.
Any reference to days shall mean calendar days unless specifically noted
otherwise.
17.2.
Definitions: Unless the context otherwise requires, the capitalized terms
used herein shall have the respective meanings set forth in this Section for
all
purposes hereof.
17.2.1.
“Assets”“ shall have the meaning set forth in ARTICLE 1.
32
17.2.2.
“Assumed Liabilities” shall have the meaning set forth in Section
2.1.
17.2.3.
“Affiliate” As used in this Agreement, an “affiliate” of any Person, shall mean
any Person that directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with such Person.
17.2.4.
“Knowledge” Where any representation and warranty contained in this Agreement is
expressly specified by reference to the knowledge of a non-individual party
hereto, such term shall be limited to the actual knowledge of the executive
officers of such party, as the case may be, and unless otherwise stated, such
knowledge that would have been discovered by such executive officers after
reasonable due inquiry.
17.2.5.
“Material Adverse Effect” or similar phrase, shall mean any material and adverse
effect on the operations, business, assets, properties, prospects or financial
condition of the Seller.
17.2.6.
“Person” shall mean and include an individual, a company, a joint venture, a
corporation (including any non-profit corporation), an estate, an association,
a
trust, a general or limited partnership, a limited liability company, a limited
liability partnership, an unincorporated organization and a government or other
department or agency thereof.
17.2.7.
“Purchase Price” shall have the meaning set forth in ARTICLE
3.
ARTICLE
18.
MISCELLANEOUS
18.1.
Notices.
18.1.1.
Any notice, request, instruction, consent or other document to be given
hereunder by either party hereto to the other party shall be in writing and
delivered (a) personally, (b) by telecopy or (c) by a nationally recognized
overnight carrier, or (d) by registered or certified mail, return receipt
requested, postage prepaid, as follows:
| If to the Buyer: |
Innopump,
Inc.
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ Block, President
Fax:
▇▇▇-▇▇▇-▇▇▇▇
| If to the Seller: |
Sea
Change Group LLC
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇ Block, President
Fax:
▇▇▇-▇▇▇-▇▇▇▇
33
| With a copy to: |
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP
|
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax:
▇▇▇-▇▇▇-▇▇▇▇
or
at
such other address for a party as shall be specified in writing by that
party.
18.1.2.
Notices shall be deemed received the same day (when delivered personally or
by
telecopy with receipt confirmation), the next business day (when delivered
by
overnight carrier) or five (5) days after mailing (when sent by registered
or
certified mail).
18.2.
Waiver; Remedies Cumulative. The rights and remedies of the parties to
this Agreement are cumulative and not alternative. Neither any failure nor
any
delay by any party in exercising any right, power or privilege under this
Agreement will operate as a waiver of such right, power or privilege, and no
single or partial exercise of any such right, power or privilege will preclude
any other or further exercise of such right, power or privilege or the exercise
of any other right, power or privilege. Any of the terms or conditions of this
Agreement may be waived in writing at any time by the party which is entitled
to
the benefits thereof. No waiver of any of the provisions of this Agreement
shall
be deemed or shall constitute a waiver of such provision at any time in the
future or a waiver of any other provision hereof.
18.3.
Captions. The captions set forth in this Agreement are for convenience
only and shall not be considered as part of this Agreement, nor affect in any
way the meaning of the terms and provisions hereof.
18.4.
Successors and Assigns. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors and
assigns of the parties hereto; provided, however, that this Agreement may not
be
assigned by any party without the express written consent of the other party
hereto.
18.5.
Enforceability. If any provision of this Agreement as applied to any
party or to any circumstance shall be adjudged by a court to be invalid or
unenforceable, the same shall in no way affect any other provision of this
Agreement, the application of such provision in any other circumstances, or
the
validity or enforceability of this Agreement. The parties intend this Agreement
to be enforced as written. If any such provision, or part thereof, however,
is
held to be unenforceable because of the duration thereof or the area covered
thereby, the Seller and the Buyer agree that the court making such determination
shall have the power to reduce the duration and/or area of such provision,
and/or to delete the specific words or phrases, and in its amended form such
provision shall then be enforceable and shall be enforced. If any provision
of
this Agreement shall otherwise finally be determined to be unlawful, then such
provision shall be deemed to be severed from this Agreement and every other
provision of this Agreement shall remain in full force and effect.
18.6.
Counterparts. This Agreement may be executed in more than one
counterpart, each of which shall for all purposes be deemed to be an original
and all of which shall constitute one
and
the same agreement. A signature to this Agreement delivered by telecopy or
other
artificial means shall be deemed valid.
34
18.7.
Governing Law. The interpretation and construction of this Agreement, and
all matters relating hereto (including, without limitation, the validity or
enforcement of this Agreement), shall be governed by the laws of the State
of
New York without regard to any conflicts or choice of laws provisions of the
State of New York that would result in the application of the law of any other
jurisdiction.
18.8.
No Strict Construction. The language used in this Agreement will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against either
party.
18.9.
Public Announcements. The Buyer and the Seller shall agree on the terms
of the press releases to be issued upon the execution of this Agreement and
shall consult with each other before issuing any other press releases with
respect to this Agreement and the transactions contemplated hereby, including
without limitation, any termination of this Agreement for any reason.
18.10.
Miscellaneous. As used in this Agreement, the Schedules and the Exhibits
and as required by the context: the singular and plural shall be deemed to
include each other and each gender, to include all genders; the terms herein,
hereof, and hereunder or other similar terms refer to this Agreement, in which
they appear as a whole and not only to the particular sentence, paragraph,
subsection or section in which any such term is used except as expressly more
specifically limited; and words and phrases defined in this Agreement have
the
same meaning in the Schedules, Exhibits unless specifically provided to the
contrary in any thereof.
18.11.
Entire Agreement; Amendment. Except as set forth herein, this Agreement,
including all Schedules and Exhibits hereto constitute the sole understanding
of
the parties with respect to the matters contemplated hereby and thereby and
supersedes and renders null and void all other prior agreements and
understandings between the parties with respect to such matters. No amendment,
modification or alteration of the terms or provisions of this Agreement,
including all Schedules and Exhibits hereto, shall be binding unless the same
shall be in writing and duly executed by the party against whom such would
apply.
18.12.
Legal Fees. In the event legal action is instituted to enforce or
interpret the provisions of this Agreement, the prevailing party shall be
entitled to reasonable attorneys’ fees and all costs incurred.
35
IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed and delivered by its duly authorized representatives as of the date
first written above.
| SEA CHANGE GROUP LLC |
INNOPUMP,
INC.
|
||
|
By:
|
By:
|
||
|
Name:
Title:
|
Name:
Title:
|
|
|
36
TABLE
OF
CONTENTS
|
ARTICLE
1.
|
||
|
SALE
AND PURCHASE OF ASSETS
|
1
|
|
|
1.1.
Inventory
|
1
|
|
|
1.2.
Contracts
|
2
|
|
|
1.3.
Leases
|
2
|
|
|
1.4.
Tangible Property
|
2
|
|
|
1.5.
Intangible Property
|
2
|
|
|
1.6.
Prepaid Items and Deposits
|
2
|
|
|
1.7.
Accounts Receivable
|
2
|
|
|
1.8.
Names
|
2
|
|
|
1.9.
Lists and Records
|
2
|
|
|
1.10.
Goodwill
|
2
|
|
|
1.11.
Excluded Assets
|
2
|
|
|
ARTICLE
2.
|
||
|
LIABILITIES
|
3
|
|
|
2.1.
Assumption of Liabilities
|
3
|
|
|
2.2.
Retained Liabilities
|
3
|
|
|
ARTICLE
3.
|
||
|
PURCHASE
PRICE
|
3
|
|
|
3.1.
Purchase Price
|
3
|
|
|
3.2.
Payment
|
3
|
|
|
3.3.
Allocation of the Purchase Price
|
4
|
|
|
ARTICLE
4.
|
||
|
REPRESENTATIONS
AND WARRANTIES OF THE SELLER
|
4
|
|
|
4.1.
Existence and Good Standing
|
4
|
|
|
4.2.
Financial Statements and No Material Changes
|
4
|
|
|
4.3.
Books and Records
|
4
|
|
|
4.4.
Title to Properties; Encumbrances
|
4
|
|
|
4.5.
Real Property
|
5
|
|
|
4.6.
Contracts
|
5
|
|
|
4.7.
Execution and Validity; Non-Contravention; Approvals and
Consents
|
6
|
|
|
4.8.
Litigation
|
7
|
|
|
4.9.
Taxes
|
7
|
|
|
4.10.
Liabilities
|
7
|
|
|
4.11.
Insurance
|
7
|
|
|
4.12.
Intellectual Properties
|
8
|
|
|
4.13.
Representations
|
8
|
|
|
4.14.
Compliance with Laws; Permits
|
9
|
|
|
4.15.
Accounts Receivable; Work-in-Process; Accounts Payable
|
10
|
|
|
4.16.
Employee Relations
|
11
|
|
37
|
4.17.
Employee Benefit Matters
|
11
|
|
|
4.18.
Interests in Customers, Suppliers, Etc
|
13
|
|
|
4.19.
No Changes Since the Balance Sheet Date
|
14
|
|
|
4.20.
Company Controls
|
14
|
|
|
4.21.
Brokers
|
15
|
|
|
4.22.
Copies of Documents
|
15
|
|
|
4.23.
Inventory
|
15
|
|
|
4.24.
No Material Adverse Change
|
15
|
|
|
4.25.
Employees; Labor Relations
|
16
|
|
|
|
||
|
ARTICLE
5.
|
|
|
|
REPRESENTATIONS
AND WARRANTIES OF THE BUYER
|
16
|
|
|
5.1.
Subsidiaries
|
16
|
|
|
5.2.
Organization, Good Standing, and Qualification
|
16
|
|
|
5.3.
Capitalization and Voting Rights
|
17
|
|
|
5.4.
Authorization
|
17
|
|
|
5.5.
Filings, Consents and Approvals
|
17
|
|
|
5.6.
Litigation
|
17
|
|
|
5.7.
Compliance with Other Instruments
|
18
|
|
|
5.8.
Permits
|
18
|
|
|
5.9.
Compliance with Laws
|
18
|
|
|
5.10.
Disclosure
|
18
|
|
|
5.11.
Brokers
|
19
|
|
|
5.12.
No Misrepresentation
|
19
|
|
|
|
||
|
ARTICLE
6.
|
|
|
|
COVENANTS
OF THE SELLER
|
19
|
|
|
6.1.
Conduct of Business Prior to the Closing Date
|
19
|
|
|
6.2.
Access by the Buyer to Properties and Records; Furnishing
Information
|
20
|
|
|
6.3.
Third-Party Consents
|
20
|
|
|
6.4.
Transfer of Warranties
|
20
|
|
|
6.5.
Negotiations with Third Parties
|
21
|
|
|
6.6.
Insurance
|
21
|
|
|
6.7.
Delivery of Financial Statements
|
21
|
|
|
|
||
|
ARTICLE
7.
|
|
|
|
CONDITIONS
TO OBLIGATIONS OF THE BUYER
|
21
|
|
|
7.1.
Assigned Leases; Estoppel Certificates
|
21
|
|
|
7.2.
Corporate Approvals
|
21
|
|
|
7.3.
Non-Competition Agreements
|
21
|
|
|
7.4.
No Litigation
|
21
|
|
|
7.5.
No Casualty
|
22
|
|
|
7.6.
Truth of Representations and Warranties
|
22
|
|
|
7.7.
Performance by the Seller
|
22
|
|
|
7.8.
No Material Adverse Change
|
22
|
|
|
7.9.
Other Deliverables
|
22
|
|
38
|
ARTICLE
8.
|
||
|
CONDITIONS
TO OBLIGATIONS OF THE SELLER
|
22
|
|
|
8.1.
No Litigation
|
22
|
|
|
8.2.
Truth of Representations and Warranties
|
22
|
|
|
8.3.
Performance by the Buyer
|
23
|
|
|
8.4.
Corporate Approvals
|
23
|
|
|
8.5.
Other Deliverables
|
23
|
|
|
|
||
|
ARTICLE
9.
|
||
|
CLOSING
|
23
|
|
|
9.1.
The Closing Date
|
23
|
|
|
9.2.
Deliveries by the Buyer
|
23
|
|
|
9.3.
Deliveries by the Seller
|
24
|
|
|
9.4.
Rights to Possession
|
24
|
|
|
|
||
|
ARTICLE
10.
|
|
|
|
SALES
AND TRANSFER TAXES
|
24
|
|
|
|
||
|
ARTICLE
11.
|
|
|
|
SURVIVAL
OF REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS
|
25
|
|
|
11.1.
Survival of Representatives and Warranties
|
25
|
|
|
11.2.
Notice of Claim
|
25
|
|
|
|
||
| ARTICLE 12. |
|
|
|
INDEMNIFICATION
|
25
|
|
|
12.1.
Indemnification of the Buyer Indemnified Parties
|
25
|
|
|
12.2.
Indemnification of the Seller Indemnified Parties
|
25
|
|
|
12.3.
Indemnification Procedures
|
26
|
|
|
12.4.
Limitations On and Other Matters Regarding Indemnification
|
29
|
|
|
12.5.
Indemnity Cushion and Cap
|
29
|
|
|
12.6.
Limitations
|
30
|
|
|
|
||
|
ARTICLE
13.
|
|
|
|
TERMINATION
|
30
|
|
|
13.1.
Grounds
|
30
|
|
|
13.2.
Effect
|
31
|
|
|
|
||
|
ARTICLE
14.
|
|
|
|
EXPENSES
|
31
|
|
|
|
||
|
ARTICLE
15.
|
||
|
MAINTENANCE
OF BOOKS AND RECORDS - ACCOUNTINGS
|
31
|
|
39
|
ARTICLE
16.
|
||
|
EMPLOYEES
|
32
|
|
|
|
||
|
ARTICLE
17.
|
|
|
|
RULES
OF CONSTRUCTION AND DEFINITIONS
|
32
|
|
|
17.1.
Rules of Construction:
|
32
|
|
|
17.2.
Definitions:
|
32
|
|
|
|
||
|
ARTICLE
18.
|
|
|
|
MISCELLANEOUS
|
33
|
|
|
18.1.
Notices
|
33
|
|
|
18.2.
Waiver; Remedies Cumulative
|
34
|
|
|
18.3.
Captions
|
34
|
|
|
18.4.
Successors and Assigns
|
34
|
|
|
18.5.
Enforceability
|
34
|
|
|
18.6.
Counterparts
|
34
|
|
|
18.7.
Governing Law
|
35
|
|
|
18.8.
No Strict Construction
|
35
|
|
|
18.9.
Public Announcements
|
35
|
|
|
18.10.
Miscellaneous
|
35
|
|
|
18.11.
Entire Agreement; Amendment
|
35
|
|
|
18.12.
Legal Fees
|
35
|
|
40
LIST
OF SCHEDULES AND EXHIBITS
|
EXHIBITS
|
|
|
Exhibit
ARTICLE 4 - Seller Schedule of Exceptions
|
|
|
Exhibit
ARTICLE 5 - Buyer Schedule of Exceptions
|
|
|
Exhibit
A
|
Form
of Non-Competition Agreement
|
|
Exhibit
B
|
Form
of Assignment and Assumption Agreement
|
|
Exhibit
C
|
Form
of Assignment and Assumption of Lease and Consent to
Assignment
|
|
Exhibit
D
|
Form
of ▇▇▇▇ of Sale
|
|
SCHEDULES
- PER CONTRACT
|
|
41