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EXHIBIT 10.68
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered into as of
December 30, 1997, by and among Golden Eagle Ice-Texas, Inc., a Texas
corporation ("Buyer"), Big "R" Ice Company, Inc., an Arkansas corporation ("Big
R"), Sellit, Inc., an Arkansas corporation and an affiliate of Big R ("Sellit")
(and together with Big R the "Sellers"), ▇▇▇▇▇▇▇ Bros., an Arkansas general
partnership and an affiliate of Sellers (the "Lessors"), ▇▇▇ ▇. ▇▇▇▇▇▇▇,
Administrator of the Estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an
individual residing in the state of Arkansas, who jointly control all the shares
of Sellers (the Administrator and the individual are, collectively, the
"Shareholders"). Big R, Sellit, the Shareholders and Lessors, are all affiliates
and are hereinafter collectively known as the "Selling Group."
PRELIMINARY STATEMENTS
Sellers are engaged in the production, distribution and sale of
packaged ice products (such business being herein referred to herein as the
"Sellers' Business" or the "Business"); and
Sellers are desirous of selling to Buyer and Buyer is desirous of
purchasing certain assets of Sellers' Business, upon the terms and conditions
hereafter set forth; and
The Selling Group is desirous of entering into a noncompetition
agreement and other ancillary agreements.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, covenants, representations and warranties hereafter set forth, the
parties hereby agree as follows:
I. DEFINITIONS
Unless the context otherwise requires, the terms defined in this
Section I shall have the meanings herein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
herein defined.
"Assets" shall mean those assets of the Sellers which are more fully
described in Section 2.1 and Schedule 2.1 of this Agreement. The Assets shall
not include the Excluded Assets (defined hereinbelow).
"Assumed Liabilities" shall mean only those liabilities expressly
assumed by Buyer which are more fully described in Section 2.5 of this
Agreement.
"▇▇▇▇ of Sale" shall refer to the ▇▇▇▇ of Sale conveying title to the
Assets from Sellers to Buyer attached to this Agreement as Exhibit A.
"Closing" shall mean the consummation of this Agreement.
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"Closing Date" shall mean the date on which this Agreement will be
consummated.
"Common Stock" shall mean the $.01 par value common stock of Packaged
Ice, Inc.
"Escrow Agreement" shall mean the escrow agreement between the Selling
Group and Buyer attached to this Agreement as Exhibit C.
"Escrow Agent" shall mean Metropolitan National Bank, Little Rock,
Arkansas.
"Escrow Amount" shall have the meaning set forth in Section 2.5 of this
Agreement.
"Excluded Assets" shall have the meaning set forth in Section 2.2 and
Schedule 2.2 of this Agreement.
"Financial Statements" shall have the meaning set forth in Section 3.3
of this Agreement.
"Governmental Authority" shall mean any federal, state, local, foreign
or other governmental agency, department, commission, board, bureau,
instrumentality or body.
"Intangible Assets" shall mean all patents, trademarks, trademark
licenses, trade names, brand names, slogans, copyrights, reprint rights,
franchises, licenses, authorizations, inventions, processes, know-how, formulas,
trade secrets and other intangible assets of and only of the Business (together
with all pending applications, continuations-in-part and extensions for any of
the above).
"Investment Letter" shall mean a letter from the party receiving Common
Stock in the form attached to this Agreement as Exhibit B.
"Purchase Price" shall have the meaning set forth in Section 2.3 of
this Agreement.
"Selling Group's Disclosure Memorandum" shall mean a memorandum
prepared by the Selling Group and delivered to Buyer that lists all disclosures
by the Selling Group concerning the Assets and the Business which are the
subject of this Agreement.
"Taxes" shall mean all excise, added value, sales, use, real and
personal property, occupancy, business and occupation, mercantile, real estate,
or other tax (including interest and penalties thereon and including estimated
taxes thereof).
II. PURCHASE AND SALE
2.1 PURCHASE AND SALE OF ASSETS. Subject to the terms and conditions of
this Agreement, Sellers agree to sell, convey, assign, transfer and deliver to
Buyer, and Buyer agrees to purchase, at the Closing, the personal property,
intangible assets, contracts and rights of Sellers related to the Sellers'
Business which are described on Schedule 2.1 attached hereto and incorporated
herein by reference, and all of the goodwill of Sellers' Business associated
therewith (collectively the "Assets").
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2.2 EXCLUDED ASSETS. The Assets shall not include, and Buyer shall not
acquire, the assets and properties described in Schedule 2.2 attached hereto
(the "Excluded Assets").
2.3 PURCHASE PRICE. The purchase price for the Assets shall be
$3,750,000 less the adjustment set forth in Section 2.4 hereof (the "Purchase
Price"). The Purchase Price shall be payable in accordance with Section 2.5 of
this Agreement.
2.4 ADJUSTMENTS; ASSUMPTION OF LIABILITIES. It is hereby agreed and
understood that Buyer is assuming no liabilities whatsoever of Sellers other
than an asset based loan with NationsBank, ordinary trade payables and accrued
expenses (collectively, the "Assumed Liabilities"). If the ratio of collectible
accounts receivable and inventory ("Current Assets") to ordinary trade payables,
accrued expenses and the NationsBank loan is below the threshold ratio of 1:1,
the Purchase Price shall be reduced by an amount equal to the difference between
the Assumed Liabilities and the Current Assets. Sellers shall be responsible for
all employment related expenses which accrue before Closing Date, including,
without limitation, salaries, wages, accrued vacation pay, sick pay or leave,
unemployment compensation, pension and profit sharing plans, income tax
withholding, and social security taxes. Sellers will terminate their employees
as of the Closing Date, and Buyer may thereafter hire any or all of such
employees. The parties agree that Buyer is not assuming any of Sellers' pension
or profit sharing plans, and Sellers shall be remain responsible therefor.
2.5 PAYMENT OF PURCHASE PRICE. $3,750,000 of the Purchase Price (less
any adjustment made in accordance with Section 2.4 of this Agreement) shall be
payable in cash. The cash portion of the Purchase Price shall be payable as
follows:
(a) the Closing Date payoff amounts of all current and long
term interest bearing debt (other than the NationsBank loan) and
operating and capital leases (including any unpaid interest and
prepayment penalties) shall be paid directly to Sellers' creditors;
(b) $375,000 shall be placed in escrow with the Escrow Agent
pursuant to the Escrow Agreement; and
(c) the remaining cash amount shall be paid to the Sellers as
follows:
(i) $267,003 to Sellit; and
(ii) the remaining amount to Big R.
The $375,000 cash placed in escrow is known as the "Escrow Amount"
2.6 PRORATION. The parties shall prorate at the Closing the current
year's ad valorem taxes and vehicle license fees on the property comprising the
Assets, based on the latest available statements from taxing authorities,
whether for the current tax year or the preceding tax year. Sellers' pro rata
share of such taxes and vehicle license fees shall be the portion attributable
to the period through the day preceding the Closing Date, prorated by days. The
prorated amounts shall be payable in the manner set forth below:
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(a) If a prorated amount is payable by Buyer and determinable
at the Closing, it shall be added to the amount payable by Buyer at the
Closing.
(b) If a prorated amount is payable by Buyer and not
determinable at the Closing, it shall be billed by Sellers when
determinable and promptly paid by Buyer to Sellers.
(c) If a prorated amount is payable by Sellers and
determinable at the Closing, it shall be deducted from the amount
otherwise payable by Buyer at the Closing.
(d) If a prorated amount is payable by Sellers and not
determinable at the Closing, it shall be billed by Buyer when
determinable and promptly paid by Sellers to Buyer.
2.7 ALLOCATION. The parties hereto agree and acknowledge that the
Purchase Price shall be allocated as agreed in good faith by the parties hereto
on a date after the Closing, but in no event shall such date be later than six
months after the Closing Date, and Sellers and Buyer agree to file all Tax
returns or reports including, without limitation, IRS Form 8594, for their
respective taxable years in which the Closing occurs and to reflect the
allocation of the Purchase Price on any such return or report and agree not to
take any position inconsistent therewith before any Governmental authority
charged with the collection of any Tax or in any administrative proceeding.
2.8 LEASE. The parties shall enter into lease agreements for the real
property described in Schedule 2.8 (the "Leased Properties") in the form of
Leases attached hereto as Exhibit 2.8-A (the "Leases"). The Leases shall entitle
Buyer to lease the Leased Properties for an initial period of five (5) years
(the "Initial Period"), with the option to renew the Leases for three additional
periods of five (5) years each (the "Renewal Periods"). The Leases shall also
provide that the Buyer shall have the option to purchase any of the Leased
Properties during the Initial Period or any Renewal Period at the higher of the
respective value indicated for each property on Schedule 2.8-A or the Fair
Market Value (as hereafter defined) of each such property. In the event that
Buyer wishes to exercise its option to purchase one of the Leased Properties,
the Fair Market Value of the Leased Properties shall be determined by obtaining
an appraisal by a nationally recognized appraisal firm hired by Buyer with the
approval of Lessors, such approval not to be unreasonably withheld. Buyer
acknowledges that Lessors shall have the right to use a portion of the premises
in Pine Bluff, Arkansas for the storage of merchandise associated with the
Selling Group's pizza business. Buyer also acknowledges that Lessors shall be
able to continue to lease a portion of the real property located in Springdale,
Arkansas to current third parties. Lessors shall also provide the services of
▇▇▇▇▇ ▇▇▇▇▇▇ (approximately 60% of her time) to Buyer following the Closing for
a period of one (1) year without cost to Buyer in partial consideration of the
sale of the assets and the Leases.
2.9 EMPLOYMENT AGREEMENT. Buyers shall enter into an Employment
Agreement in the form of Exhibit 2.9 attached hereto, with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
for a period of one (1) year with a salary of $60,000.
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III. REPRESENTATIONS AND WARRANTIES
OF THE SELLING GROUP
Except as otherwise disclosed in the Selling Group's Disclosure
Memorandum, each of the Selling Group represents and warrants to Buyer as
follows:
3.1 ORGANIZATION. Each of Big R and Sellit is a corporation duly
incorporated and organized under the laws of the state of Arkansas. ▇▇▇▇▇▇▇
Brothers is a general partnership doing business in the state of Arkansas. The
Sellers have all requisite power and authority to own, lease and operate the
Business as presently conducted and to enter into this Agreement and to perform
their respective obligations hereunder.
3.2 EXECUTION, DELIVERY AND PERFORMANCE OF AGREEMENT. The execution,
delivery and performance by the Selling Group of this Agreement and the
consummation of each of them of the transactions contemplated hereby have been
duly authorized by all necessary corporate or partnership action. This Agreement
has been duly executed and delivered by the Selling Group and constitutes the
valid and binding obligation of each individual or entity of the Selling Group,
enforceable against them in accordance with its terms. The execution, delivery
and performance of this Agreement by the Selling Group will not, with or without
the giving of notice, the passage of time, or both, violate, conflict with,
result in a default, breach or loss of rights under, or result in the creation
of any lien, claim or encumbrance pursuant to, any lien, encumbrance,
instrument, agreement, or understanding, or any law, regulation, rule, order,
judgment or decree, to which any member of the Selling Group is a party or by
which they are bound or affected, respectively.
3.3 FINANCIAL STATEMENTS. Sellers have previously caused to be
furnished to Buyer the compiled balance sheets of both Big R and Sellit as at
December 29, 1996, and the related compiled statements of income and statements
of cash flow for the period then ended, and the internally prepared balance
sheets of Big R and Sellit as at September 28, 1997 and the related internally
prepared statement of income and statement of cash flow for the accounting
period ending September 28, 1997 (such balance sheets and related statements are
collectively referred to herein as the "Financial Statements"). The Financial
Statements taken as a whole present fairly the financial position of Sellers as
of December 29, 1996 and September 28, 1997, respectively, in accordance with
generally accepted accounting principles ("GAAP") consistently applied, except
that the September 28, 1997 document does not contain the full disclosure
footnotes required by GAAP.
Except as and to the extent reflected or reserved against in the
Financial Statements or as disclosed by the Selling Group in the Selling Group's
Disclosure Memorandum and except for liabilities arising in the ordinary course
of business and consistent with past practice since the date of the September
28, 1997 balance sheets of Big R and Sellit, Sellers have operated the Business
in the ordinary course and has incurred no material liabilities which would be
required to be reflected in accordance with generally accepted accounting
principles on a balance sheet as of the date hereof or disclosed in the notes
thereto. Since December 29, 1996, there has not been any material adverse change
in the business, operations, properties, prospects, assets or condition of
Sellers, and no event has occurred or circumstance exists that may result in
such a material adverse change.
3.4 ENCUMBRANCES ON THE ASSETS. Except as set forth on the Selling
Group's Disclosure Memorandum, there are no debts, liabilities, mortgages,
liens, security interests, charges, pledges,
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conditional sale agreements, or adverse claims or restrictions, transfers or any
other encumbrances (hereinafter "Encumbrances") whatsoever against the Assets.
3.5 BUSINESS OPERATIONS AND CONDITION OF ASSETS. The Selling Group
acknowledges that Buyer is purchasing the Assets for the express purpose of
operating a packaged ice manufacturing and distribution business. All items
comprising the Assets have been continuously used by Sellers in Sellers'
Business and are now in serviceable condition unless expressly disclosed to the
contrary by Sellers in the Selling Group's Disclosure Memorandum.
3.6 TITLE TO PERSONAL PROPERTY. Except as set forth in the Selling
Group's Disclosure Memorandum, Sellers have good, legal and marketable title to
all of the personal property comprising the Assets; at the Closing, Sellers
shall deliver to Buyer good, legal and marketable title to the Assets free from
all Encumbrances.
3.7 LITIGATION. Except as set forth in the Selling Group's Disclosure
Memorandum, there is no pending claim, action, suit, proceeding or investigation
(judicial, governmental or otherwise), nor any order, decree or judgment in
effect or threatened, against or relating to Sellers or the Assets, or the
transactions contemplated by this Agreement, and no event has occurred or
circumstances exist that will, or is reasonably likely to, give rise to or serve
as a basis for the commencement of any claim, action, suit, proceeding or
investigation.
3.8 COMPLIANCE WITH LAWS. Sellers have complied with all laws, rules,
regulations, ordinances, orders, judgments and decrees relating to the Assets.
The ownership and use of the Assets and the conduct of the Business as it
specifically relates to the Assets and the Leased Properties do not conflict
with the rights of any other person.
3.9 TAXES. All returns, including estimated tax returns, required to be
filed after the Closing Date by or with respect to Sellers with respect to
Taxes, that, if unpaid, might result in a lien upon any of the Assets, will be
duly filed and will be true, correct and complete, and all Taxes payable
pursuant thereto will be paid except such Taxes, if any, as may be contested in
good faith. No deficiency or adjustment in respect to any Taxes that have been
assessed against or with respect to Sellers that, if unpaid, might result in a
lien upon any of the Assets remains unpaid.
All Taxes that relate to the Assets and that are payable by or
accruable by Sellers or as to which Sellers have any liability with respect to
events occurring on or before the Closing Date have been paid in full or have
been adequately provided for in the reserve for taxes on the books of Sellers on
or before the Closing Date, except for income, franchise or capital stock taxes
and transfer, sales and other taxes arising in connection with the transactions
contemplated by this Agreement.
3.10 ENVIRONMENTAL. The Selling Group, to the best of its knowledge has
complied in all respects with all laws (including rules, regulations, codes,
plans, injunctions, judgments, orders, decrees, rulings, and charges thereunder)
of any Governmental Authorities which have jurisdiction over the Selling Group
and their subsidiaries concerning pollution or protection of the environment,
public health and safety, or employee health and safety, including laws relating
to emissions, discharges, releases, or threatened releases of pollutants,
contaminants, or chemical, industrial,
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hazardous, or toxic materials or wastes into ambient air, surface water, ground
water, or lands or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport, or handling of
pollutants, contaminants, or chemical, industrial, hazardous, or toxic materials
or wastes, and no action, suit, proceeding, hearing, investigation, charge,
complaint, claim, demand, or notice (collectively, an "Environmental Action")
has been filed or commenced against any of them alleging any failure of any
member of the Selling Group so to comply, nor is any member of the Selling Group
aware of any circumstances or conditions which may cause any such Environmental
Action to be filed or commenced against Sellers.
Without limiting the generality of the preceding sentence, the Selling
Group, to the best of its knowledge has obtained and been in material compliance
with all of the terms and conditions of all permits, licenses, and other
authorizations which are required under, and has complied, in all material
respects, with all other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules, and timetables which are
contained in such laws. Buyer, at Buyer's expense, shall have the right to
conduct any and all environmental investigations and surveys necessary to
satisfy Buyer as to the environmental condition of the Assets or the Leased
Properties.
3.11 EMPLOYEE BENEFITS. All employee benefit plans (whether or not
covered by ERISA), deferred compensation or executive compensation plans for
employees, directors or independent contractors, and all other employee or
independent contractor arrangements or programs that are maintained or
contributed to by the Sellers have (collectively, the "Company Plans") been
administered and operated in all material respects in compliance with their
terms, ERISA, if applicable, the Code and other applicable law. All Company
Plans that are intended to be qualified under Section 401(a) of the Code are so
qualified and a current favorable IRS determination letter exists for each such
plan and covers the amendments required by the Tax Reform Act of 1986. All
funded Company Plans are fully funded according to their terms and applicable
law. To the knowledge of the Selling Group, no prohibited transaction or breach
of fiduciary duty under ERISA has been committed by any fiduciary, disqualified
person or party in interest of any Company Plan. The Sellers have no liability,
contingent or otherwise, under Title IV of ERISA.
3.12 COMPLETE AND ACCURATE DISCLOSURE. No representation or warranty
made to Buyer in this Agreement or in connection with this transaction contains
or will contain an untrue statement of a material fact, or omits or will omit to
state a material fact necessary to make such representation or warranty not
misleading or necessary to enable a prospective purchaser of Sellers' Business,
the Assets or the Leased Properties to make a fully informed decision. All
documents and information which have been or will be delivered to Buyer or its
representatives by or on behalf of the Selling Group, or any of its members, are
and will be true, correct and complete copies of the documents they purport to
represent.
Except as set forth in the Selling Group's Disclosure Memorandum, no
consent or approval of any public body or authority and no consents or waivers
from other parties to material licenses, franchises, permits, agreements or
other instruments are required to be obtained by any member of the Selling Group
as a result of the transfer of the Assets contemplated by this Agreement to (i)
avoid the loss of any material license, franchise, permit or other instrument or
the creation of any lien or other claim on any Asset pursuant to the terms of
any law, regulation, order, agreement
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or other legal requirement binding upon Sellers or other members of the Selling
Group relating to the Business or to which any such Asset may be subject, or
(ii) to enable Buyer to continue the operation of the Business substantially as
conducted prior to the Closing.
3.13 CONTRACTS. Sellers are not a party to any contracts relating to
the Business or the Assets that are not terminable at will, other than those
contracts of Sellers relating to the Business listed and described in the
Selling Group's Disclosure Memorandum.
3.14 INSURANCE AND WARRANTIES.
(a) Insurance. Sellers have in force all policies of insurance
described in Section 3.14(a) of the Selling Group's Disclosure Memorandum
insuring it (including descriptions of whether such policies and binders are
"claims made" or "occurrences" policies, and the respective issuers and
expiration dates thereof). Unless otherwise described on the Selling Group's
Disclosure Memorandum, the members of the Selling Group have not been advised
(i) of any risks or any fact or matter which might render such policies void or
voidable, or (ii) any cancellations of insurance coverage, or material increases
in premium, or other costs related to insurance, to take effect, or that are
proposed, or that may or will occur, following the Closing. To the Selling
Group's knowledge, all such policies are underwritten by reputable insurers, and
there is no basis to believe the insurers are or are likely to become
financially unsound. Sellers have not been refused insurance or been notified of
any cancellation or involuntary reduction or other limitation of insurance
during the past three years. Section 3.14(a) of the Selling Group's Disclosure
Memorandum lists all claims made or dues to be made by Sellers, and all matters
for which a claim could reasonably have been but was not made, against an
insurer on account of events occurring since December 31, 1996.
(b) Warranties. Except as described in Section 3.14(b) of the
Selling Group's Disclosure Memorandum, (i) Sellers have not agreed to become
responsible for consequential damages or made any express warranties to third
parties with respect to any products distributed or sold by Sellers and (ii)
there are no warranties (express or implied) outstanding with respect to any
products other than any such implied by law. A copy of each standard warranty of
Sellers with respect to such product is included in Section 3.14(b) of the
Selling Group's Disclosure Memorandum.
3.15 INVENTORIES.
(a) All inventories shown on the September 28, 1997 Balance
Sheets of Big R and Sellit consisted of, and all inventories thereafter acquired
will consist of, items of good and merchantable quality and quantity usable or
salable in the ordinary and regular course of Sellers' business except for
obsolete items and items below standard quality, all of which have been written
off, or written down to net realizable value on the September 28, 1997 Balance
Sheets of Big R and Sellit. Each inventory or class was priced at the lower of
cost or market on the first-in, first-out basis and, as to the classes of items
inventoried and methods of counting and pricing, such inventories were
determined in a manner consistent with prior years. Except to the extent, if
any, disclosed in Section 3.15 of the Selling Group's Disclosure Memorandum,
Sellers have neither sold any of their inventory under agreements with an
express right of return, nor consigned any inventory, and Sellers and
Shareholders have no knowledge of any pending returns of inventory in any
material quantity.
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(b) There have been no material changes in the inventories
reflected in the September 28, 1997 Balance Sheets of Big R and Sellit and there
will be no further changes in any such inventories except those changes
resulting from write down or write offs, purchases in the ordinary and regular
course of business and sale of merchandise inventory in the ordinary and regular
course of business.
3.16 SUPPLIERS AND CUSTOMERS. Except as set forth in Section 3.16 of
the Selling Group's Disclosure Memorandum and to Sellers' and Shareholders'
actual knowledge, no customer of Sellers have communicated to Sellers or
Shareholders in any manner his or its intention to cease to do business with or
trade with Sellers, or materially alter, modify or amend the terms with which it
has conducted business with Sellers whether as a result of, or in contemplated
of, the consummation of the transactions contemplated by this Agreement.
3.17 ACCOUNTS RECEIVABLE. Except as otherwise indicated in Section 3.17
of the Selling Group's Disclosure Memorandum, all accounts receivable of Sellers
have arisen out of bona fide transactions in the ordinary course of business,
and each such account receivable constitutes a valid and binding obligation of
the obligor, maker, comaker, guarantor, endorser or debtor thereof or thereunder
and is collectible in full within 60 days.
IV. REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 CORPORATE EXISTENCE; GOOD STANDING; CAPITALIZATION. Buyer is a
corporation, duly organized, validly existing and in good standing under the
laws of the State of Texas and is qualified to conduct business in the State of
Arkansas.
4.2 POWER AND AUTHORITY. Buyer has the requisite corporate power and
authority, and has been duly authorized, to enter into this Agreement and to
perform all of its obligations hereunder. Buyer represents and warrants to the
Selling Group that this Agreement has been duly executed and delivered by Buyer,
and constitutes a valid and binding obligation in accordance with its terms. The
execution, delivery and performance of this Agreement by the Buyer will not,
with or without the giving of notice, the passage of time, or both, violate,
conflict with, result in a default, breach or loss of rights under, or result in
the creation of any lien, claim or encumbrance pursuant to, any lien,
encumbrance, instrument, agreement, or understanding, or any law, regulation,
rule, order, judgment or decree, to which the Buyer is a party or by which it is
bound or affected.
V. COVENANTS OF THE SELLING GROUP
The Selling Group hereby covenants and agrees as follows:
5.1 CONDUCT OF BUSINESS. Between the date hereof and the Closing Date,
Sellers shall operate the Business in the ordinary course and continue normal
capital expenditures and maintenance in connection with the Assets prior to the
Closing Date, except (i) as may be permitted by this Agreement or (ii) as
necessary to consummate the transactions contemplated hereby.
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5.2 INVESTIGATION BY BUYER.
(a) Between the date hereof and the Closing Date, the Selling
Group shall (i) give Buyer and its authorized representatives and advisors
access, at reasonable times and on reasonable notice, to all items of personal
property comprising the Assets, books and records, personnel, offices, and other
facilities of the Assets, (ii) permit Buyer to make such inspections thereof as
Buyer may reasonably require, and (iii) cause its employees, and its advisors to
furnish to Buyer and its authorized representatives and advisors such financial
and operating data and other information with respect to the Business prepared
in the ordinary course of the Business as Buyer or its agent shall from time to
time reasonably request.
(b) The Selling Group agrees that, subsequent to the Closing
Date, Buyer and its agents and accountants will be permitted reasonable access,
during normal business hours, and as often as Buyer may reasonably request,
consistent with reasonable requirements of the Selling Group, to the books and
records of Sellers and their affiliates, insofar as such books and records
contain information or data pertaining to the Assets and the Leased Properties
prior to the Closing Date to the extent such information is not otherwise
available at the offices or other facilities of the Buyer, and Buyer shall have
the right to make copies thereof and excerpts therefrom.
5.3 CLOSING CONDITIONS. The Selling Group will, to the extent within
its control, use its best efforts to cause the conditions set forth in Article
VII to be satisfied by the Closing Date.
5.4 CONFIDENTIALITY. From and after the date hereof, the Selling Group
will, and will cause their respective officers, employees, representatives,
consultants and advisors to, hold in confidence all confidential information in
the possession of the Selling Group, their affiliates or their financial
advisors concerning the Assets and the Leased Properties. The Selling Group will
not release or disclose any such information to any person other than Buyer and
its authorized representatives. Notwithstanding the foregoing, the
confidentiality obligations of this Section shall not apply to information:
(a) which any member of the Selling Group is compelled to
disclose by judicial or administrative process, or, in the reasonable
opinion of counsel, by other mandatory requirements of law;
(b) which can be shown to have been generally available to the
public other than as a result of a breach of this Section; or
(c) which can be shown to have been provided to the Selling
Group by a third party who obtained such information other than as a
result of a breach of a confidential relationship.
5.5 PUBLIC ANNOUNCEMENT. The Selling Group and Buyer will cooperate in
the public announcement of the transactions contemplated by this Agreement, and,
other than as may be required by applicable law, no such announcement will be
made by either party without the consent of the other party, which consent shall
not be unreasonably withheld.
5.6 NO SHOPPING. The members of the Selling Group shall not solicit,
initiate or participate, directly
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or indirectly, or cause any other person to solicit, initiate or participate,
directly or indirectly, in discussions or negotiations with, or provide any
information to, any other person (other than the Buyer) concerning, or enter
into any agreement providing for (other than in the ordinary course of business)
the acquisition of the Assets or the Leased Properties or part thereof (whether
by merger, purchase of stock or assets or other similar transaction), other than
the acquisition contemplated by this Agreement. The restrictions of this
paragraph shall terminate if the Closing has not taken place by the date
referred to in Section 7.1.
5.7 FURTHER ASSURANCES. The members of the Selling Group will use their
best efforts to implement the provisions of this Agreement, and for such purpose
the Selling Group, at the request of Buyer, at or after the Closing Date, will,
without further consideration, promptly execute and deliver, or cause to be
executed and delivered, to Buyer such deeds, assignments, bills of sale,
consents, documents evidencing title and other instruments in addition to those
required by this Agreement, in form and substance satisfactory to Buyer, as
Buyer may reasonably deem necessary or desirable to implement any provision of
this Agreement.
5.8 INSURANCE. Sellers and Lessors shall maintain insurance through the
Closing Date with financially sound and reputable insurers unaffiliated with the
Selling Group in such amounts and against such risks as are adequate to protect
the Assets and the Business.
5.9 NONCOMPETITION AGREEMENT. At the Closing, the Selling Group will
enter into a noncompetition agreement in the form attached hereto as Exhibit 5.9
(the "Noncompetition Agreement").
5.10 CESSATION OF BUSINESS/CHANGE OF NAME. At and after the Closing,
the Selling Group will cease to conduct any business constituting the
manufacturing, packaging, distribution and/or storage of packaged ice products.
In addition, Selling Group will promptly after Closing (but in no event more
than 30 days after the Closing Date) effectuate the change of the names of the
businesses from Big "R" Ice Company, Inc. and Sellit, Inc. by filing all
necessary documents with the Arkansas Secretary of State's office or such other
proper Arkansas governmental authority as is necessary to effectuate such name
change. Selling Group further agrees it will execute any and all other documents
requested by Buyer to facilitate Buyer's use of the name "Big "R" Ice Company,
Inc." and "Sellit, Inc." or any variant thereof.
5.11 OPINION OF LEGAL COUNSEL. At the Closing, the Selling Group shall
deliver to Buyer a Legal Opinion of Sellers' counsel in the form attached hereto
as Exhibit 5.11 (the "Sellers Opinion of Counsel").
5.12 DISCHARGE OF SELLERS' DEBTS. Sellers hereby agree and acknowledge
that Buyer is not assuming any debts of Sellers', other than the Assumed
Liabilities, and that Sellers remain responsible for and will discharge all
debts, other than the Assumed Liabilities, that relate to the Business and were
incurred by Sellers at or prior to the Closing.
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VI. COVENANTS OF BUYER
6.1 ANCILLARY AGREEMENTS. At the Closing, Buyer will pay the purchase
price and enter into the Noncompetition Agreement, the Escrow Agreement, the
Leases, and all other ancillary documents required hereunder.
6.2 BUYER'S LEGAL OPINION. At the Closing, Buyer shall deliver to
Sellers a Legal Opinion of Buyer's counsel in the form attached hereto as
Exhibit 6.2 (the "Buyer's Opinion of Counsel").
VII. CLOSING
7.1 TIME AND PLACE. The consummation of the sale and purchase of the
Assets and the execution of the Noncompetition Agreement (the "Closing") shall
take place at a mutually agreeable time and in a mutually agreeable manner to
include, but not limited to, the exchange of facsimile signature page
counterparts that have been signed by the appropriate parties to this Agreement.
The date of the Closing shall herein be referred to as the "Closing Date" and
shall take place no later than December 31, 1997.
7.2 THE SELLING GROUP'S OBLIGATIONS AT CLOSING. At the Closing, the
members of the Selling Group shall, respectively, execute, acknowledge (where
appropriate)and deliver to Buyer in form reasonably satisfactory to Buyer:
(a) An assignment or assignments assigning to Buyer the use
and possession of all that property comprising the Assets;
(b) copies of all certificates of occupancy, licenses,
permits, authorizations, and approvals required by law and issued by
all Governmental Authorities having jurisdiction, if any, and the
original of each ▇▇▇▇ for current real estate and personal property
taxes, together with proof of payment thereof (if any of the same have
been paid);
(c) Bills of Sale, assignments or other suitable transfer
documents transferring to Buyer, the Assets, free and clear of all
liens and encumbrances, in form reasonably satisfactory to counsel for
Buyer which includes the form UCC-3 or other appropriate form
indicating release of liens by any secured party and that no action of
redress or reclamation shall be sought by any secured party against
Buyer or the Assets other than the Assumed Liabilities;
(d) the Noncompetition Agreement;
(e) a Certificate of Compliance, in form and substance
satisfactory to Buyer, from the Selling Group indicating that the
Selling Group has materially complied with their obligations contained
in this Agreement, that all representations and warranties contained in
this Agreement or in any certificate required to be delivered in
connection with this Agreement shall be accurate at and as of the
Closing with the same force and effect as though made at Closing, and
no material adverse change with respect to the Sellers has occurred;
(f) an executed copy of the Escrow Agreement to Buyer;
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(g) a copy of Sellers' Opinion of Counsel to Buyer;
(h) copies of executed Leases to the Leased Properties; and
7.3 BUYER'S OBLIGATIONS AT CLOSING. At the Closing, Buyer will:
(a) pay the Purchase Price in accordance with Section 2.5;
(b) Intentionally Omitted;
(c) deliver to the Selling Group executed counterparts of the
Noncompetition Agreement, the Escrow Agreement, the Leases
and all other ancillary documents required hereunder;
(d) deliver a Certificate of Compliance from an officer of
Buyer indicating that Buyer has materially complied with
its obligations, representations and warranties contained
in this Agreement; and
(e) deliver Buyer's Opinion of Counsel pursuant to Section
6.2.
VIII. CONDITIONS TO CLOSING
8.1 CONDITIONS TO OBLIGATIONS OF BUYER. The obligations of Buyer to
complete the transactions contemplated at the Closing shall be subject to the
satisfaction on or prior to the Closing Date of the following conditions:
(a) Performance. Each agreement and obligation of every member
of the Selling Group to be performed on or before the Closing Date
shall have been duly performed in all material respects;
(b) Representations and Warranties True; No Material Adverse
Change. The representations and warranties of the Selling Group
contained herein or in any certificate required to be delivered in
connection with this Agreement shall have been accurate on the date
hereof and shall be accurate at and as of the Closing, and since the
date hereof there shall have occurred no material adverse change in the
business operations, properties, prospects, Assets, Leased Properties
or condition of Sellers.
(c) No Violation of Statutes, Orders, etc. There shall not be
in effect any decree or judgment enjoining Buyer from consummating the
transactions contemplated hereby;
(d) Third Party Creditors. All third-party creditors of the
Business will be paid in full and have released all liens or claims
against the Assets, other than the Assumed Liabilities, or Sellers
shall provide to Buyer documentation from all third party creditors
indicating that the third party creditors have released their liens
against the Assets and
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consented to Sellers' conveyance of the Assets to Buyer free and clear
of all liens or other Encumbrances.
(e) Escrow Agreement. Sellers shall have delivered an executed
copy of the Escrow Agreement to Buyer.
(f) Opinion of Counsel. The Selling Group shall have delivered
Seller's Opinion of Counsel as described in Section 5.11 herein to
Buyer.
8.2 CONDITIONS TO OBLIGATIONS OF THE SELLING GROUP. The obligation of
the Selling Group to complete the transactions contemplated at the Closing shall
be subject to the satisfaction on or prior to the Closing Date of the following
conditions:
(a) Performance. Each agreement of Buyer to be performed on or
before the Closing Date shall have been duly performed in all material
respects;
(b) Representations and Warranties True. The representations
and warranties of Buyer contained herein shall have been true in all
material respects; and
(c) No Violation of Statutes, Orders, etc. There shall not be
in effect any decree or judgment enjoining the Selling Group from
consummating the transactions contemplated hereby.
IX. INDEMNIFICATION
9.1 INDEMNIFICATION OF BUYER BY THE SELLING GROUP. The Selling Group
agrees to individually and severally indemnify, defend and hold harmless Buyer
and Buyer's employees, agents, heirs, legal representatives, and assigns from
and against any and all claims, suits, losses, expenses (legal, accounting,
investigation and otherwise), damages and liabilities, including, without
limitation, tax liabilities (hereinafter, collectively "Damages"), arising out
of or relating to (i) any liability or obligation of any member of the Selling
Group or (ii) any inaccuracy of any representation or warranty set forth in this
Agreement or the breach of any covenant made by any of the Selling Group in or
pursuant to this Agreement.
9.2 INDEMNIFICATION OF THE SELLING GROUP BY BUYER. Buyer agrees to
indemnify, defend and hold harmless the Selling Group from and against only
those Damages arising out of or relating to any inaccuracy or any representation
or warranty of Buyer set forth in this Agreement or the breach of any covenant
made by Buyer in or pursuant to this Agreement.
9.3 CLAIMS FOR INDEMNIFICATION. Whenever any claim arises for
indemnification hereunder, the indemnified party (hereafter the "Indemnified
Party") shall notify the indemnifying party (hereafter the "Indemnifying Party")
in writing by registered or certified mail promptly after the Indemnified Party
has actual knowledge of the facts constituting the basis for such claim (the
"Notice of Claim"). Such notice shall specify all material facts known to the
Indemnified Party giving rise to such indemnification right, and to the extent
practicable, the amount or an estimate of the amount of the liability arising
therefrom. The failure of any Indemnified Party to promptly notify the
Indemnifying
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Party shall not relieve the Indemnifying Party of its obligation to indemnify in
respect to such action and shall not relieve the Indemnifying Party of any other
liability which they may have to any Indemnified Party unless such failure to
notify the Indemnifying Party prejudices the rights of the Indemnifying Party.
In addition to all other remedies provided hereunder or by law, Buyer shall
specifically have the right to make a claim against the Escrow Amount for any of
Buyer's Damages. To the extent any claim for indemnification is made by Buyer
against the Members, such amount of liability for indemnity by the Members shall
not exceed the Escrow Amount.
9.4 RIGHT TO DEFEND. If the facts giving rise to any such claim for
indemnification involve any actual or threatened claim or demand by any third
party against the Indemnified Party, the Indemnifying Party shall be entitled
(without prejudice to the right of the Indemnified Party to participate in the
defense of such claim or demand at its expense through counsel of its own
choosing) to assume the defense of such claim or demand in the name of the
Indemnified Party at the Indemnifying Party's expense and through counsel of its
own choosing, which counsel shall be reasonably satisfactory to the Indemnified
Party, if it gives written notice to the Indemnified Party within forty-five
(45) days after receipt of the Notice of Claim that the Indemnifying Party
intends to assume the defense of such claim and acknowledges its liability to
indemnify the Indemnified Party for any losses resulting from such claim;
provided, however, that if the Indemnifying Party does not elect to assume the
defense of any claim, then (a) the Indemnifying Party shall have the right to
participate in the defense of such claim or demand at its expense through
counsel of its own choosing, provided the Indemnified Party shall control the
defense of such claim, (b) the Indemnified Party may settle any such claim
without the consent of the Indemnifying Party, however, the Indemnifying Party
may not settle any such claim without the prior written consent of the
Indemnified Party; and (c) Section 9.5 hereof shall be inapplicable. Whether or
not the Indemnifying Party does choose to so defend such claim, the parties
hereto shall cooperate in the defense thereof and shall furnish such records,
information and testimony and attend such conferences, discovery proceedings,
hearings, trials and appeals as may be requested in connection therewith. To the
extent the Selling Group is the Indemnified Party for any actual or threatened
claim or demand by any third party, the Selling Group shall have the right to
control the prosecution of any counterclaim or right related to such a claim or
demand, provided that the Selling Group agrees to reasonably cooperate with
Buyer with respect to the prosecution of such counterclaim or right.
9.5 SETTLEMENT. Except as provided in Section 9.4, (i) the Indemnified
Party shall make no settlement of any claim that would give rise to liability on
the part of the Indemnifying Party under an indemnity contained in this Article
IX without the written consent of the Indemnifying Party, which consent shall
not be unreasonably withheld and (ii) the Indemnifying Party can settle without
the consent of the Indemnified Party only if the settlement involves only the
payment of money for which the Indemnifying Party will be fully liable. No other
settlement of any claim may be made without the consent of both the Indemnified
Party and the Indemnifying Party, which consent shall not be unreasonably
withheld.
9.6 EFFECT OF TERMINATION. Without limiting any other rights the
parties may have, the parties specifically agree that the covenants contained
in this Article will continue to be enforceable following termination
of this Agreement.
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9.7 TIME LIMITATIONS. If the Closing occurs, the Selling Group will
have no liability (for indemnification or otherwise) with respect to any
representation or warranty, or covenant or obligation to be performed and
complied with on or prior to the Closing Date or representations made again as
of the Closing Date, other than those in Sections 3.4, 3.6, 3.9 and 3.10, unless
on or before one year from the Closing Date, Buyer notifies Sellers of a claim
specifying the factual basis of that claim in reasonable detail to the extent
then known by Buyer. A claim with respect to Sections 3.4, 3.6, 3.9 or 3.10 must
be made prior to the expiration of the applicable statutory period of
limitations, including any extensions to such period, and shall thereupon
terminate. If the Closing occurs, Buyer will have no liability (for
indemnification or otherwise) with respect to any representation or warranty, or
covenant or obligation to be performed and complied with prior to the Closing
Date, unless on or before one year from the Closing Date, Sellers notify Buyer
of a claim specifying the factual basis of that claim in reasonable detail to
the extent then known by Sellers.
9.8 LIMITATIONS ON AMOUNT. The Selling Group will have no liability
(for indemnification or otherwise) with respect to the matters described in
Section 9.1 until the total of all Damages with respect to such matters and the
matters described in Section 9.1 exceeds $50,000 in the aggregate (the
"Basket"), and then the Selling Group shall be responsible for all Damages based
thereon from the first dollar of Damages without regard to the Basket; provided,
however, the Basket shall not apply to any claim for indemnification arising out
of a breach of any representations, warranties or covenants contained in
Sections 3.4, 3.6, 3.9 or 3.10 or any provisions herein to the extent of their
relation to any of the Excluded Assets and the Selling Group's obligation to
discharge all liabilities not assumed by Buyer or Damages related to calculation
of the Purchase Price. The Selling Group's maximum liability with respect to the
matters described in Section 9.1 will be limited to $375,000 in the aggregate
(the "Cap"); provided, however, this Cap will not apply to a claim for
indemnification arising out of a breach of any of the Company's representations,
warranties or covenants contained in Sections 3.4, 3.6, 3.9 or 3.10, Damages
resulting from willful or intentional misrepresentations, any provisions herein
to the extent of their relation to any of the Excluded Assets, and the Selling
Group's obligation to discharge all liabilities not assumed by Buyer or Damages
related to calculation of the Purchase Price.
X. TERMINATION
10.1 TERMINATION. This Agreement and the transactions contemplated
hereby may be terminated at any time prior to the Closing Date by any of the
following:
(a) Mutual Consent. By mutual written consent of the Selling
Group and Buyer;
(b) Misrepresentation or Breach. By the Selling Group or the
Buyer, if there has been a material misrepresentation or a material
breach of a warranty or covenant herein or in any agreement required to
be delivered pursuant hereto on the part of the other party hereto;
(c) Failure of Condition to Buyer's Obligations. By Buyer, if
all of the conditions set forth in Section 8.1 have not been satisfied;
(d) Failure of Condition to Selling Group's Obligations. By
the Selling Group, if all of the conditions set forth in Section 8.2
have not been satisfied;
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(e) Court Order. By the Selling Group or Buyer if consummation
of the transactions contemplated hereby shall violate any nonappealable
final order, decree or judgment of any court or governmental body
having competent jurisdiction;
(f) Material Adverse Change. By Buyer if any event has
occurred after the date hereof which is, or will result in a material
adverse change in the prospects, business or condition of the Assets.
10.2 EFFECT OF TERMINATION. If this Agreement is terminated pursuant to
Section 10.1(a), all further obligations of the Selling Group and Buyer under
this Agreement shall terminate without further liability of the Selling Group or
Buyer.
If the Selling Group fails to consummate the transactions contemplated
on its part to occur on or before December 31, 1997, in circumstances whereby
all conditions of the Closing set forth in Section 8.2 have been satisfied in
all material respects or waived, Buyer's sole remedy shall be to (i) to require
the Selling Group to consummate and specifically perform the transactions
contemplated hereby, in accordance with the terms of this Agreement, and to
obtain from the Selling Group any attorney fees incurred in connection with
procuring such specific performance or (ii) terminate this Agreement and obtain
reimbursement of its out-of-pocket expenses incurred directly in connection with
the negotiation, preparation and performance of this Agreement.
If Buyer fails to consummate the transactions contemplated on its part
to occur on the Closing Date, in circumstances whereby all conditions of the
Closing set forth in Section 8.1 have been satisfied in all material respects or
waived, the Selling Group's sole remedy shall be to (i) to require Buyer to
consummate and specifically perform the transactions contemplated hereby, in
accordance with the terms of this Agreement, and to obtain from Buyer any
attorney fees incurred in connection with procuring such specific performance or
(ii) terminate this Agreement and obtain reimbursement of its out-of-pocket
expenses incurred directly in connection with the negotiation, preparation and
performance of this Agreement.
10.3 RIGHT TO PROCEED. Notwithstanding anything in this Agreement to
the contrary, if any condition specified in Section 8.1 or 8.2 has not been
satisfied, the Selling Group and Buyer, in addition to any other rights which
may be available to it, shall have the right to waive any such condition that is
for its benefit and to require the other party hereto to proceed with the
Closing.
XI. MISCELLANEOUS
11.1 EXPENSES. Legal, accounting and other costs and expenses incurred
in connection with this transaction shall be paid by the party incurring such
expenses.
11.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties contained in or made in connection with this Agreement shall
survive the Closing.
11.3 INUREMENT; ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors, legal representatives and, if properly
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assigned, assigns. This Agreement may not be assigned by any party without the
written consent of the other parties hereto.
11.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement, the Schedules and
Exhibits hereto, and the related agreements referred to herein embody the entire
agreement of the parties hereto, and supersede all prior agreements and
understandings, with respect to the subject matter hereof.
11.5 SEVERABILITY. Any provision of this Agreement which is invalid,
unenforceable or illegal in any jurisdiction shall, as to such jurisdiction, be
ineffective only to the extent of such invalidity, unenforceability or
illegality without affecting the remaining provisions hereof and without
affecting the validity, enforceability or legality of such provision in any
other jurisdiction.
11.6 INCORPORATION OF EXHIBITS AND SCHEDULES. All Exhibits and
Schedules referenced in this Agreement, and any statements contained therein or
in any certificate or instrument delivered pursuant hereto, constitute an
integral part of this Agreement and shall be deemed made in this Agreement as if
set forth in full herein.
11.7 CAPTIONS AND HEADINGS; USE OF TERM "PERSON". Captions and headings
used herein are for convenience only, do not constitute a part of this
Agreement, and shall not be considered in construing this Agreement. Unless the
context otherwise requires, all article, section or subsection cross-references
are to articles, sections and subsections within this Agreement. As used herein,
the term "person" shall mean any corporation, partnership, venture,
proprietorship, trust, benefit plan or other entity or enterprise.
11.8 GOVERNING LAW; VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
11.9 NOTICE. All notices of requests, demands or other communications
required or to be given hereunder shall be delivered by hand, overnight courier,
facsimile transmission, or by United States Mail, postage prepaid, by registered
or certified mail (return receipt requested), to the addressed indicated below
and shall be deemed given when received by the addressee thereof:
to Sellers: Big R Ice Company, Inc.
Attn.: ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
to Shareholders: Attn.: ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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to Lessors: ▇▇▇▇▇▇▇ Bros.
Attn: ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
For any of the above, provide a copy to: Bridges, Young, ▇▇▇▇▇▇▇, & Drake PLC
Attn: ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
to Buyer: Packaged Ice, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇.▇. ▇▇▇▇▇ III, President
with a copy to: Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇,
L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, P.C.
or such other address or addresses as may be expressly designated by either
party by notice given in accordance with the foregoing provision.
11.10 AGENTS OR BROKERS. Buyer represents that it has not retained or
used the services of any broker or finder which would result in the imposition
of a fee upon the Selling Group or Buyer. The Selling Group has, however,
retained the services of B.K.D. Financial, L.L.C. and shall be unilaterally
responsible for any fees, charges, commissions or any other type of
consideration requested by, or to be found due to, B.K.D. Financial, L.L.C. for
their participation in the transactions contemplated by this Agreement. Buyer
expressly denies any obligation to compensate B.K.D. Financial, L.L.C. in any
way for their participation in this transaction.
11.11 TIME IS OF THE ESSENCE. Time is of the essence of this Agreement,
and all time limitations shall be strictly construed and rigidly enforced. The
failure or delay in the enforcement of any rights or interests granted herein
shall not constitute a waiver of any such right or interest or be considered as
a basis for estoppel.
11.12 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which shall constitute the
same instrument.
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11.13 ARBITRATION. Any controversy or claim arising out of or relating
to this Agreement, or the breach thereof, shall be settled by binding
arbitration in accordance with the Commercial Rules of the American Arbitration
Association by a single arbitrator to be located in San Antonio, Bexar County,
Texas, and judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof, and shall not be appealable.
[ASSET PURCHASE AGREEMENT SIGNATURE PAGE FOLLOWS]
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[ASSET PURCHASE AGREEMENT SIGNATURE PAGE]
Executed on the date first written above.
BUYER:
GOLDEN EAGLE ICE-TEXAS, INC.
By: /s/ ▇.▇. ▇▇▇▇▇ III
------------------------------------------
Print Name: ▇.▇. ▇▇▇▇▇ III
Print Title: President
SELLERS:
BIG R ICE COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Print Title: President
SELLIT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Print Title: President
SHAREHOLDERS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, An Individual
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇▇, Administrator of the
Estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
LESSORS:
▇▇▇▇▇▇▇ BROS.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Print Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Print Title: Partner