ASSET PURCHASE AGREEMENT
by any among
LIBERTY FOOD GROUP, LLC
as Buyer
and
FERRO FOODS CORPORATION
as Seller
▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
and
▇▇▇▇▇ ▇▇▇▇▇▇▇
November 23, 1999
TABLE OF CONTENTS
ARTICLE I
SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Assets to be Sold. . . . . . . 1
Section 1.2 Excluded Assets. . . . . . . . 3
Section 1.3 Reorganization . . . . . . . . 3
ARTICLE II
EXCLUSION OF LIABILITIES . . . . . . . . . . . . . . . . . 3
Section 2.1 Liabilities Not Assumed by the
Buyer . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE III
CLOSING; PURCHASE PRICE AND PAYMENT. . . . . . . . . . . . 4
Section 3.1 Closing. . . . . . . . . . . . 4
Section 3.2 Purchase Price . . . . . . . . 4
Section 3.3 Payment of Purchase Price. . . 5
Section 3.4 Deliveries . . . . . . . . . . 5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER . . . . . . . 7
Section 4.1 Due Incorporation and
Qualification . . . . . . . . . . . . . . . . . . . 7
Section 4.2 Subsidiaries . . . . . . . . . 7
Section 4.3 Authority to Execute and
Perform Agreements. . . . . . . . . . . . . . . . . 7
Section 4.4 Compliance . . . . . . . . . . 8
Section 4.5 Tax Matters. . . . . . . . . . 8
Section 4.6 No Loan Agreements . . . . . . 8
Section 4.7 Litigation . . . . . . . . . . 8
Section 4.8 Agreements . . . . . . . . . . 8
Section 4.9 Environmental and Other
Permits and Licenses. . . . . . . . . . . . . . . . 9
Section 4.10 Purchased Assets. . . . . . . 9
Section 4.11 Liens . . . . . . . . . . . .10
Section 4.12 Inventory; Accounts
Receivable; Equipment; Records;
Intellectual Property. . . . . . . .10
Section 4.13 Employee Matters. . . . . . .10
Section 4.14 Employee Benefit Plans. . . .10
Section 4.15 Bulk Transfer . . . . . . . .11
Section 4.16 Full Disclosure . . . . . . .11
Section 4.17 No Broker . . . . . . . . . .11
Section 4.18 Investment Intent . . . . . .12
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYER. . . . . . . .13
Section 5.1 Incorporation and
Qualification13
Section 5.2 Authority to Execute and
Perform Agreements. . . . . . . . . . . . . . . . .13
Section 5.3 The Shares. . . . . . . . . . .13
Section 5.4 No Broker. . . . . . . . . . .13
ARTICLE VI
COVENANTS AND AGREEMENTS . . . . . . . . . . . . . . . . .14
Section 6.1 Expenses of Sale . . . . . . .14
Section 6.2 Taxes. . . . . . . . . . . . .14
Section 6.3 Telephone Numbers. . . . . . .14
Section 6.4 Change of Name . . . . . . . .14
ARTICLE VII
BUYER'S CONDITIONS TO CLOSING. . . . . . . . . . . . . . .14
Section 7.1 Representations and Warranties.14
Section 7.2 Covenants. . . . . . . . . . .15
Section 7.3 Bulk Transfer. . . . . . . . .15
Section 7.4 Consents . . . . . . . . . . .15
ARTICLE VIII
RESTRICTIVE COVENANTS. . . . . . . . . . . . . . . . . . .15
Section 8.1 Confidential Information . . .15
Section 8.2 Non-Competition. . . . . . . .15
Section 8.3 Rights and Remedies Upon
Breach16
Section 8.4 Severability of Covenants. . .16
Section 8.5 Enforceability in
Jurisdictions16
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . . . .16
Section 9.1 Survival of Representations
and Warranties. . . . . . . . . . . . . . . . . . .16
ARTICLE X
INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . .17
Section 10.1 Obligation of the Seller to
Indemnify . . . . . . . . . . . . . . . . . . . . .17
Section 10.2 Notice to Indemnifying Party.18
ARTICLE XI
MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . .18
Section 11.1 Notices . . . . . . . . . . .18
Section 11.2 Entire Agreement. . . . . . .19
Section 11.3 Waivers and Amendments. . . .19
Section 11.4 Governing Law . . . . . . . .19
Section 11.5 Consent to Jurisdiction . . .19
Section 11.6 Assignment. . . . . . . . . .19
Section 11.7 Counterparts and Facsimile. .20
Section 11.8 Severability of Provisions . .20
Section 11.9 Exhibits and Schedules. . . .20
Section 11.10 Headings . . . . . . . . . .20
EXHIBITS
EXHIBIT A - ▇▇▇▇ of Sale and Assignment
EXHIBIT B - Release Agreement
EXHIBIT C - Lock-Up Letter
EXHIBIT D - Voting Trust and Proxy Statement
EXHIBIT E - Escrow Agreement
EXHIBIT F - Creditors
EXHIBIT F-1 - Bulk Sale Notice
SCHEDULES
Schedule 1.1 (i) - Accounts Receivable
Schedule 1.1 (ii) - Cash; Marketable Securities
Schedule 1.1 (iv) - Inventory
Schedule 1.1 (v) - Customers and Suppliers
Schedule 1.1 (vi) - Intellectual Property
Schedule 1.1 (vii) - Equipment
Schedule 1.1 (viii) - Vehicles
Schedule 1.1 (xii) - Contracts
Schedule 1.1 - Permitted Liens
Schedule 1.2 - Excluded Assets
Schedule 4.9 - Permits
ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT dated as of November 23, 1999 (this
"Agreement") by and among LIBERTY FOOD GROUP, LLC, a Delaware limited liability
company (the "Buyer"), and FERRO FOODS CORPORATION, a New York corporation (the
"Seller"), and ▇▇▇▇▇ ▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇▇ (individually, a "Principal"
and, together, the "Principals").
W I T N E S S E T H
WHEREAS, the Seller, a corporation duly organized and existing under
the laws of the State of New York, is engaged in the business of wholesale food
distribution (the "Business"); and
WHEREAS, the Seller desires to sell to the Buyer, and the Buyer
desires to purchase from the Seller, all right, title and interest of the Seller
in and to substantially all the assets, properties and rights of the Seller as
provided herein, all upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, the Buyer and the Seller hereby
agree as follows:
ARTICLE I
SALE OF ASSETS
Section 1.1 Assets to be Sold. Except as otherwise provided in Section
1.2 below, at the Closing (as hereinafter defined) the Seller shall sell,
assign, convey, transfer and deliver to the Buyer, and the Buyer shall purchase
from the Seller, all right, title and interest of the Seller in and to the
assets, properties, rights and business of the Seller of every type and
description, real, personal and mixed, tangible and intangible, wherever located
and whether or not reflected on the books and records of the Seller relating to
or used in connection the Business (collectively, the "Purchased Assets"),
including, without limitation:
(i) all accounts receivable, whether collected or
uncollected on the date hereof, attributable to sales made by Seller and its
agents relating to the period commencing on the date which is 60 business days
prior to the Closing Date (as hereinafter defined), including without
limitation, those which are listed on Schedule 1.1(i) attached hereto (the
"Accounts Receivable");
(ii) all cash and marketable securities held or owned by
Seller on the date hereof in any bank or securities account, as set forth on
Schedule 1.1(ii) attached hereto;
(iii) the goodwill of the Seller;
(iv) all of the Seller's inventories on the Closing Date,
including, without limitation, all inventories of raw materials,
work-in-progress and active shipments and ordered goods whether located on the
premises of the Seller, in transit to or from such premises, in warehouses, in
the premises of manufacturers, or otherwise, including, without limitation,
those indicated on Schedule 1.1(iv) attached hereto (collectively, the
"Inventory");
(v) all of the Seller's customers and suppliers as set forth
on Schedule 1.1(v) attached hereto;
(vi) the name "Ferro Foods Corporation" and all trademarks,
service marks logos, copyrights and registrations and applications therefor, and
trade secrets and confidential business information, manufacturing and
production processes and techniques, research and development information,
customer and supplier data, drawings, specifications, designs, plans, proposals,
technical data, copyrightable works, financial, marketing and business data,
pricing and cost information, and business and marketing plans (the
"Intellectual Property"), including, without limitation, those indicated on
Schedule 1.1(vi) attached hereto;
(vii) all furniture, fixtures, equipment, machinery and
other tangible personal property used or held for use by the Seller at the
locations at which the Business is conducted, or otherwise owned or held by the
Seller at the Closing Date for use in conduct of the Business, including without
limitation, those listed on Schedule 1.1(vii) attached hereto (the "Equipment");
(viii) the vehicles used in the Business, including without
limitation, those indicated on Schedule 1.1(viii) attached hereto (the
"Vehicles");
(ix) all books of account, general, financial, tax and
personnel records, invoices, shipping records, sales invoices, warranties on all
supplies, equipment correspondence and other documents, records and files and
all computer software and programs and any rights thereto owned, associated with
or employed by the Seller or used in, or relating to, the Business, other than
organization documents, minutes and stock records books and the corporate seal
of the Seller (collectively the "Records");
(x) all claims, causes of action, choses in action, rights
of recovery and rights of set-off of any kind (including rights to insurance
proceeds and rights under and pursuant to all warranties, representations and
guaranties made by suppliers of products, materials or equipment, or components
thereof), pertaining to or arising out of, the Business and enuring to the
benefit of the Seller;
(xi) all sales and promotional literature and other
sales-related materials owned, used, associated with or employed by the Seller
in connection with the Business;
(xii) all written or oral contracts, licenses, sublicenses,
agreements, undertakings, commitments, and sales and purchase orders, quotations
and other executing contracts, including, without limitation, those listed on
Schedule 1.1(xii) attached hereto;
(xiii) all municipal, state and federal franchises, permits,
licenses, agreements, waivers and authorizations held or used by the Seller in
connection with, or required for, the Business, to the extent transferable; and
(xiv) all other assets, properties, rights and business of
every kind and nature owned or held by the Seller which are used by the Seller
in the Business, or in which the Seller has an interest, known or unknown, fixed
or unfixed, ▇▇▇▇▇▇ or inchoate, accrued, absolute, contingent or otherwise,
whether or not specifically referred to in this Agreement.
In confirmation of the foregoing sale, assignment, conveyance and
transfer, the Seller shall execute and deliver to the Buyer at the Closing a
▇▇▇▇ of Sale and Assignment in the form of Exhibit A attached hereto.
The Purchased Assets shall be conveyed and delivered to the Buyer free
and clear of all liens, encumbrances, security interests, claims, charges, and
other encumbrances of any kind, nature or character (collectively, "Liens"),
other than the Liens indicated on Schedule 1.1 attached hereto (the "Permitted
Liens").
Section 1.2 Excluded Assets. Notwithstanding the foregoing, there
shall be excluded from the assets, properties, rights and business to be
transferred to the Buyer hereunder those assets, properties and rights set forth
in Schedule 1.2 (collectively the "Excluded Assets").
Section 1.3 Reorganization. (a) It is intended that the transaction
described herein qualify as a tax-free reorganization under Section 368(a)(1)(C)
of the Internal Revenue Code of 1986, as amended (the "Code"). As such, and as
more fully described herein, Buyer will acquire substantially all of the assets
of the Seller solely in exchange for voting securities of Buyer.
(b) As soon as reasonably practicable, but in no event later than
12 months following the Closing Date (as hereinafter defined), Seller will be
liquidated pursuant to the requirements of Section 368(a)(2)(G) of the Code.
ARTICLE II
EXCLUSION OF LIABILITIES
Section 2.1 Liabilities Not Assumed by the Buyer. Anything in this
Agreement to the contrary notwithstanding, the Buyer shall not assume, or in any
way be liable or responsible for, any liabilities or obligations of the Business
or any liabilities or obligations of the Seller or the Principals, whether or
not such liabilities or obligations are in connection with or related to the
Business or the Purchased Assets. Without limiting the generality of the
foregoing, the Seller and the Principals shall retain, and shall be solely
responsible for paying, performing and discharging when due, and the Buyer shall
not assume or have any responsibility for, each of the following:
(i) any liability or obligation of the Seller arising out of
or in connection with the negotiation and preparation of this Agreement and the
consummation and performance of the transactions contemplated hereby, including,
without limitation, any tax liability so arising;
(ii) any liability or obligation under contracts and other
agreements to which the Seller is a party or by or to which it or its assets,
properties or rights are bound or subject;
(iii) any liability or obligation relating to or arising out
of the Purchased Assets and Excluded Assets;
(iv) any liability or obligation pertaining to any of the
employees of the Business;
(v) any tax, charge, duty, levy or other similar assessment
imposed by any federal, state local or foreign governmental department,
commission, board, bureau, agency or instrumentality (a "Taxing Authority"),
including without limitation, income, gross receipts, excise, property, sales,
gain, use, license, capital stock, transfer, franchise, payroll, withholding,
social security, unemployment insurance, medicaid or other taxes, including
without limitation any interest or penalties attributable thereto (collectively,
"Taxes"); and
(vi) any other liability or obligation of the Principals or
the Seller, and their respective stockholders, directors, officers, employees,
affiliates, agents or representatives and their respective successors and
assigns arising out of or relating to the Business or otherwise.
ARTICLE III
CLOSING; PURCHASE PRICE AND PAYMENT
Section 3.1 Closing. Subject to the terms and conditions of this
Agreement, the sale and purchase of the Purchased Assets contemplated by this
Agreement shall take place at a closing (the "Closing") to be held at the
offices of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on
November 23, 1999 or at such other date as the Seller and Buyer may mutually
agree; provided, however, that the Closing shall not occur prior to the tenth
(10th) day following the mailing of the notice to the creditors of the Seller as
provided in Section 4.15 below. The date upon which the Closing occurs is herein
called the "Closing Date."
Section 3.2 Purchase Price. The aggregate purchase price for the
Purchased Assets (the "Purchase Price") shall be two million five hundred
thousand (2,500,000) shares (the "Shares") of common stock, par value $.004 per
share, of Liberty Group Holdings, Inc., formerly known as Bio-Response, Inc., a
Delaware corporation (the "Issuer").
Section 3.3 Payment of Purchase Price. The Buyer shall pay the
Purchase Price to the Seller at the Closing by delivery to the Seller of a stock
certificate representing the Shares issued in the name of the Seller. The
certificate representing the Shares shall bear the following legends:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
SOLD OR OTHERWISE DISPOSED OF UNLESS (A) SUCH DISPOSITION IS PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR (B) THE HOLDER HEREOF SHALL HAVE DELIVERED TO THE
COMPANY AN OPINION, FROM COUNSEL AND IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT SUCH DISPOSITION IS
EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THAT ACT.
THIS CERTIFICATE IS SUBJECT TO AND IS TRANSFERABLE ONLY UPON
COMPLIANCE WITH THE PROVISIONS OF (i) THE ESCROW AGREEMENT DATED AS OF
NOVEMBER 23, 1999 BETWEEN LIBERTY FOOD GROUP, LLC AND FERRO FOODS
CORPORATION AND (ii) THE VOTING TRUST AND PROXY AGREEMENT DATED AS OF
NOVEMBER 23, 1999, AMONG LIBERTY FOOD GROUP, LLC, FERRO FOODS
CORPORATION, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇. AND ▇▇▇▇▇ ▇▇▇▇▇▇▇. ANY DIRECT OR
INDIRECT TRANSFER, GIFT, ASSIGNMENT, PROXY, PLEDGE, LIEN OR ANY OTHER
DISPOSITION OF THE SHARES REPRESENTED BY THIS CERTIFICATE IN VIOLATION
OF SAID AGREEMENTS SHALL BE INVALID."
Section 3.4 Deliveries. (a) On or before the Closing
Date the Seller shall have received the following from the Buyer,
all in form and substance satisfactory to the Seller:
(i) A stock certificate representing the Shares
issued in the name of the Seller;
(ii) Resolutions of the Buyer duly authorizing the execution,
delivery and performance of this Agreement and the sale of the
Purchased Assets to the Buyer contemplated hereunder and the other
documents executed by the Buyer in connection with this Agreement; and
(iii) Recent official evidence dated at least three days prior to
the Closing Date from appropriate governmental authorities of
appropriate domestic jurisdictions of the Buyer as to constituent
documents on file, good standing, payment of franchise taxes and
qualification to do business of the Buyer.
(b) On or before the Closing Date, the Buyer shall have received
the following from the Seller, all in form and substance satisfactory to the
Buyer;
(i) the ▇▇▇▇ of Sale and Assignment, duly executed
by the Seller;
(ii) the Release Agreement attached hereto as Exhibit B executed
by each of the Principals;
(iii) the Lock-Up Letter attached hereto as
Exhibit C duly executed by the Seller and each of the
Principals;
(iv) the Voting Trust and Proxy Agreement attached hereto as
Exhibit D duly executed by the Seller and each of the Principals;
(v) the Escrow Agreement attached hereto as Exhibit E duly
executed by the Seller;
(vi) the consent of each of the parties indicated on Schedule
1.1(xii) attached hereto;
(vii) Resolutions of the board of directors and stockholders of
the Seller duly authorizing the execution, delivery and performance of
this Agreement and the sale of the Purchased Assets to the Buyer
contemplated hereunder and the other documents executed by the Seller
in connection with this Agreement;
(viii) Recent official evidence dated at least three days prior
to the Closing Date from appropriate governmental authorities of
appropriate domestic jurisdictions of the Seller as to constituent
documents, on file, good standing, payment of franchise taxes and
qualification to do business of the Seller; and
(ix) Any other documents or agreements reasonably requested by
the Buyer or its counsel which are necessary or appropriate to
consummate the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE SELLER
As an inducement to the Buyer to enter into this Agreement, the Seller
and the Principals, jointly and severally, hereby represent and warrant to the
Buyer as follows:
Section 4.1 Due Incorporation and Qualification. The Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of New York and has the corporate power and lawful authority to
own, lease and operate its assets, properties and business and to carry on its
business as now conducted. The Seller is qualified to transact business and is
in good standing in each jurisdiction in which the nature of its business or
location of its properties requires such qualification, except where the failure
to be so qualified and in good standing would not result in a material adverse
effect on the Business, any of the Purchased Assets or the ability of the Seller
to perform its obligations hereunder or to consummate the transactions
contemplated by this Agreement.
Section 4.2 Subsidiaries. Neither the Seller nor any of the Principals
directly or indirectly owns or has the power to vote, or to exercise a
controlling influence with respect to the securities of any class of any person,
the holders of which class are entitled to vote for the election of directors
(or persons performing similar functions) of such person, and neither the Seller
nor any of the Principals is an affiliate of any person engaged in the same
business as the Seller or any business directly or indirectly related to the
Business, including without limitation, any supplier or customer of the
Business.
Section 4.3 Authority to Execute and Perform Agreements. Each of the
Seller and the Principals has full legal right and power and all authority and
approval required to enter into, execute and deliver this Agreement and to
perform fully their respective obligations hereunder, including, without
limitation, the sale and transfer of Purchased Assets to the Buyer. This
Agreement has been duly executed and delivered and constitutes the valid and
binding obligation of each of the Seller and the Principals, enforceable against
each of them in accordance with its terms. No approval or consent of any
foreign, federal, state, county, local or other governmental or regulatory body
is required in connection with the execution and delivery by the Seller and the
Principals of this Agreement and the consummation and performance by the Seller
and the Principals of the transactions contemplated hereby. The execution and
delivery of this Agreement, the consummation of the transactions contemplated
under this Agreement, and the performance by the Seller and the Principals of
this Agreement in accordance with its terms and conditions will not conflict
with or result in the breach or violation of any of the terms or conditions of,
or constitute (or with notice or lapse of time or both would constitute) a
default under, (i) the Certificate of Incorporation or By-Laws of the Seller;
(ii) any instrument, contract or other agreement by or to which the Seller or
the Principals is a party or by or to which it or he, or its or his, as the case
may be, assets or properties are bound or subject; (iii) any statute or any
regulation, order, judgment or decree of any court or governmental or regulatory
body; or (iv) any Permit (as defined in Section 4.9 below). The execution and
delivery of this Agreement by each of the Seller and the Principals does not,
and the performance of this Agreement by the Seller and the Principals will not,
require any consent, approval, authorization or permit of or filing with, or
notification to any person or entity other than those consents which are
indicated on Schedule (xii) attached hereto.
Section 4.4 Compliance. The Seller and the Principals have conducted
the Business through the date hereof in accordance with all applicable laws,
ordinances, statutes, rules, regulations and governmental orders applicable to
the Business or any of its properties or assets. The Seller holds all permits,
licenses, vacancies, order and appeals necessary in the conduct of its Business
as currently being conducted. Neither the Seller nor any of the Principals is in
conflict with, or in default or violation of: (i) any law, rule, regulation,
order, judgment or decree applicable to the Seller or the Principals by which
any property or asset of the Seller or Principals is bound or affected; or (ii)
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation to which either the Seller
or Principals is a party or by which the Seller or Principals or any of their
properties or assets are bound or affected.
Section 4.5 Tax Matters. Each of the Seller and the Principals has
filed all returns, reports or information returns required to be filed with any
Taxing Authority with respect of Taxes and has paid and discharged all Taxes
shown as due thereon and have paid all applicable Taxes. Neither the United
States Internal Revenue Service nor any other Taxing Authority is now asserting
or, to the best knowledge of the Seller and the Principals, threatening to
assert against the Seller any deficiency or claim for additional Taxes,
including without limitation, interest thereon or penalties in connection
therewith, other than the current audit of the Seller's 1995 financials (the
"Audit"). The Seller has not granted any waiver of any statute of limitations
with respect to, or any extension of a period for the assessment of any Tax. The
accruals and reserves for taxes reflected in the current balance sheet of the
Seller are adequate to cover all Taxes accruable through such date (including
interest and penalties, if any, thereon) in accordance with U.S. generally
accepted accounting principles, consistently applied.
Section 4.6 No Loan Agreements. The Seller is not, directly or
indirectly, a party to any contract or other agreement or arrangement relating
to borrowed money or extending credit or by or to which it or its assets or
properties are bound or subject, including without limitation, loan agreements,
credit lines, promissory notes, mortgages, pledges, guarantees, security
agreements, factoring agreements, letters of credit, powers of attorney or other
arrangements to loan or borrow money or extend credit.
Section 4.7 Litigation. Neither the Seller, nor the Principals is a
party to, or threatened with, any litigation or judicial, administrative or
arbitration proceeding other than in connection with the Audit. Neither the
Seller nor the Principals knows of any dispute with any person which materially
and adversely affects, or may materially and adversely affect, the Purchased
Assets, or the Business.
Section 4.8 Agreements. Schedule 1.1(xii) attached hereto sets forth
all of the following contracts and other agreements to which the Seller is a
party or by or to which it or its assets or properties are bound or subject: (i)
contracts and other agreements with any current or former officer, director,
employee, consultant or stockholder; (ii) agreements with any labor union or
association representing any employee; (iii) contracts and other agreements for
the sale of materials, products, supplies, equipment, merchandise or services;
(iv) licenses, royalty agreements or similar contracts; (v) warehousing,
distributorship, depository, representative, management, marketing, sales
agency, or advertising agreements; (vi) contracts and other agreements for the
sale of any of its assets or properties other than in the ordinary course of
business or for the grant to any person of any preferential rights to purchase
any of its assets or properties; (vii) joint venture agreements relating to the
assets, properties or business of the Seller or by or to which it or its assets
or properties are bound or subject; (viii) contracts or other agreements under
which it agrees to indemnify any party, to share the Tax liability of any party
or to refrain from competing with any party; or (ix) any other material contract
or other agreement whether or not made in the ordinary course of business. All
of the contracts and other agreements set forth on Schedule 1.1(xii) and
elsewhere referred to in this Agreement are in full force and effect and no
condition exists which with the lapse of time or notice would constitute a
default thereunder. Except as separately identified on Schedule 1.1(xii), the
Seller is not a party to or bound by any contract or other agreement which
either individually or in the aggregate materially and adversely affects its
assets, properties, business, or condition, financial or otherwise, or which was
entered into other than in the ordinary course of its business.
Section 4.9 Environmental and Other Permits and Licenses.
The Seller currently holds all the health and safety and other
permits, licenses, authorizations, certificates, exemptions and approvals of
governmental authorities, including, without limitation, environmental permits
(collectively "Permits"), a list of which is set forth on Schedule 4.9 attached
hereto, necessary or proper for the current use, occupancy or operation of any
asset or property of the Seller or the conduct of the Business, and all such
Permits are in full force and effect. There is no existing practice, action or
activity of the Seller and no existing condition of the properties or assets of
the Seller or the Business which will give rise to any civil or criminal
liability under, or violate or prevent compliance with, any health or
occupational safety or other applicable statute, regulation, ordinance or
decree. The Seller has not received any notice from any governmental authority
revoking, cancelling, rescinding, materially modifying or refusing to renew any
Permit or providing written notice of violations under any law, statute,
regulation, ordinance or decree. The Seller is in all respects in compliance
with the Permits. There has never been any spill, discharge, release,
contamination or other condition or event involving "Hazardous Materials" (as
defined or promulgated pursuant to applicable federal, state and local law) at
any real property owned or leased by the Seller or at any location at which the
Seller now or previously has conducted business and none of such locations or
real property has been used for the generation, storage, or use of "Hazardous
Materials."
Section 4.10 Purchased Assets. The Seller owns, leases or has the
legal right to use all the properties and assets, used or intended to be used in
the conduct of the Business. The Purchased Assets and the Excluded Assets
constitute all the properties, assets and rights forming a part of, used, held
or intended to be used in, and all such properties, assets and rights necessary
in the conduct of, the Business. The Seller has caused the Purchased Assets to
be maintained in accordance with good business practice, and all the Purchased
Assets are in good operating condition and repair and are suitable for the
purposes for which they are used and intended. The Seller has the complete and
unrestricted power and unqualified right to sell, assign, transfer, convey and
deliver the Purchased Assets to the Buyers free and clear of all Liens (other
than the Permitted Liens) without penalty or other adverse consequences.
Following the consummation of the transactions contemplated by this Agreement,
the Buyer will own, with good, valid and marketable title, or lease, under valid
and subsisting leases, or otherwise acquire the interests of the Seller in the
Purchased Assets, free and clear of any Lien other than the Permitted Liens, and
without incurring any penalty or other adverse consequence.
Section 4.11 Liens. The Seller owns outright and has good and
marketable title to all of the Purchased Assets, in each case free and clear of
any Lien other than the Permitted Liens.
Section 4.12 Inventory; Accounts Receivable; Equipment; Records;
Intellectual Property. The Inventory consists of merchantable and usable goods
in the ordinary course of the Business, the amount and character which is
reasonable under present requirements. All of the Inventory is merchantable and
is usable in the ordinary course of business of Seller as presently conducted.
Seller is not under any liability or obligation with respect to the return of
any Inventory or merchandise in the possession of customers. The Accounts
Receivable as set forth on Schedule 1.1(i) is a true and accurate list of
receivables generated by sales of the Seller in the normal course of business,
and to the best of Seller's knowledge are valid obligations of the debtors
listed on such schedule. Seller knows of no reason why any such Account
Receivable should not be collected. The Equipment is in good operational
condition and repair, ordinary wear and tear excepted. The Records are the true
books and records of the Business and truly and accurately reflect the
underlying facts and transactions in all material respects. The Records contain
all of the documentation required to operate the Business after the Closing as
presently operated and no other records or documents exist which are necessary
to operate the Business. Seller owns the right to those Intellectual Property
free and clear of all Liens, other than the Permitted Liens, and the
Intellectual Property are all that are required for the conduct of the Business
or ownership of the Purchased Assets as now being conducted or presently
proposed to be conducted. There are no assignments, licenses or sublicenses with
respect to any of the Intellectual Property. There are no pending or, to the
best knowledge of the Principals, threatened, claims, or assertions by any
person or entity to the use of any of the Intellectual Property, and none of the
Intellectual Property infringes on the rights of any person or entity and no
valid basis exists or with notice or the passage of time will exist for any such
claim.
Section 4.13 Employee Matters. The Seller has paid to date and will
pay on or before the Closing Date all accrued wages, salary, bonus, commissions,
vacation and sick pay due to be paid or compensated on or before such respective
dates for all of its employees and sales representatives, including payroll
overheads (i.e., FICA, Florida state tax, federal tax, disability, workers'
compensation and liability, employee benefit plan contributions and payments),
and the Seller and Principals shall jointly and severally indemnify and hold
harmless the Buyer, its stockholders, directors, officers, employees,
affiliates, agents, representatives and their respective successors and assigns
from and against any liability that may be incurred by reason of the Seller
having failed to make such payments.
Section 4.14 Employee Benefit Plans. Other than the Ferro Foods 401(k)
and Profit Sharing Plan (the "Plan"), the employees of the Seller are not
covered by and the Seller does not maintain, participate in, contribute to, or
operate any pension, retirement, profit-sharing or other employee benefit plans,
the Seller does not maintain or contribute to and is not required to contribute
to any employee benefit plan (within the meaning of Section 3(2) of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA")), which is intended
to qualify under paragraph 401(a) of the Code and the Seller has not been
required to contribute to any employee benefit plan which is a multi-employer
plan (within the meaning of Section 3(37) of ERISA) in the five years
immediately preceding the date hereof. The Seller has no responsibility for and
has not assumed any pension-related liabilities (including, without limitation,
withdrawal liability) of any predecessor business or person. (i) The Plan is not
a multiemployer plan with the meaning of ERISA; (ii) the Plan does not promise
or provide retiree medical or life insurance benefits to any person; (iii) the
Plan does not promise or provide severance benefits or benefits contingent upon
a change in ownership or control, within the meaning of Section 280G of the
Code;(iv) the Plan has been operated in all material respects in accordance with
its terms and the requirements of applicable law; and (v) if the Plan is subject
to Title IV of ERISA, the aggregate accumulated benefit obligations of the Plan
(as of the date of the most recent actuarial valuation prepared for the Plan)
does not exceed the fair market value of the assets of the Plan (as of the date
of such valuation).
Section 4.15 Bulk Transfer. Seller acknowledges that the sale of
assets as contemplated hereby constitutes a Bulk Transfer under Article 6 of the
New York Uniform Commercial Code (the "UCC").
The Seller has furnished to the Buyer a true, accurate and complete list of
Seller's creditors and the approximate amount of Seller's indebtedness to each,
which list is attached hereto as Exhibit F. Seller has delivered to each such
creditor a notice of Bulk Transfer, in the form attached hereto as Exhibit F-1,
on or about November 12, 1999, and any required waiting period under the UCC
shall have elapsed prior to the Closing Date.
Section 4.16 Full Disclosure. All documents and other papers delivered
by or on behalf of the Seller and the Principals in connection with this
Agreement and the transactions contemplated hereby are true, complete and
accurate; and all contracts and other agreements or instruments included
thereunder are valid, subsisting and binding on the parties thereto in
accordance with their terms. The information furnished by or on behalf of the
Seller and the Principals to the Buyer in connection with this Agreement and the
transactions contemplated hereby does not contain any untrue statement of a
material fact and does not omit to state any material fact necessary to make the
statements made, in the context in which made, not false or misleading. There is
no fact which the Seller or the Principals has not disclosed to the Buyer which
materially adversely affects, or so far as the Seller or the Principals can now
foresee will materially adversely affect, the business or condition (financial
or other) of the Business or the Purchased Assets, Seller or the ability of the
Seller or the Principals to perform this Agreement.
Section 4.17 No Broker. No broker, finder, agent or similar
intermediary has acted for or on behalf of the Seller or the Principals in
connection with this Agreement or the transactions contemplated hereby, and no
broker, finder, agent or similar intermediary is entitled to any broker's,
finder's or similar fee or other commission in connection therewith based on any
agreement, arrangement or understanding with the Seller or the Principals or any
action taken by the Seller or the Principals.
Section 4.18 Investment Intent. With respect to the
Shares to be received by the Seller as the Purchase Price:
(i) The Shares have not been registered under the Securities Act
of 1933, as amended (the "Securities Act"), and have not been registered or
qualified under the securities laws of any state of the United States. Seller
and each of the Principals acknowledges that it has no right to require the
Buyer or the Issuer to register the Shares under the Securities Act or to
register or qualify the Shares under the securities laws of any state of the
United States;
(ii) The Seller and each of the Principals agrees that it will
not, directly or indirectly, offer, transfer, sell or otherwise dispose of any
of the Shares (or solicit any offers to buy, purchase or otherwise acquire any
of the Shares), except in compliance with the Securities Act and the rules and
regulations thereunder. The Seller and each of the Principals further
understands, acknowledges and agrees that none of the Shares may be transferred,
sold or otherwise disposed of unless (x) such disposition is pursuant to an
effective registration statement under the Securities Act, or (y) the Seller
shall have delivered to the Issuer an opinion, from counsel and in form and
substance reasonably satisfactory to the Buyer, to the effect that such
disposition is exempt from the provisions of Section 5 of the Securities Act;
(iii) The Seller is acquiring the Shares for its own account, for
investment purposes only and not with a view to or for sale in connection with
any distribution thereof;
(iv) The Seller and each of the Principals and each of the
Principals must continue to bear the economic risk of the investment in the
Shares unless they are subsequently registered under the Securities Act or an
exemption from such registration is available. If any of the Shares are disposed
of in accordance with Rule 144 under the Securities Act, the Seller or each of ,
as applicable, the Principals shall deliver to the Issuer at or prior to the
time of such disposition an executed copy of Form 144 (if required by Rule 144)
and such other documentation as the Issuer may reasonably require in connection
with such disposition;
(v) The Seller and each of the Principals acknowledges that the
market value of the Shares will fluctuate from their value on the Closing Date
and, at the time that the Seller disposes of the Shares, such shares may not be
worth their market value on the Closing Date;
(vi) The Seller and each of the Principals have such knowledge
and experience in business matters to be able to evaluate the merits and risks
of an investment in the Shares and to make an informed decision with respect to
its acceptance of the Shares as the Purchase Price. The Seller and each of the
Principals have adequate means of providing for their current financial needs
and contingencies, are able to bear the substantial economic risks of an
investment in the Shares for an indefinite period of time, have no need for
liquidity thereof, and could afford a complete loss of the value of such
investment;
(vii) The Seller and each of the Principals have had an
opportunity to discuss the business, operations and conditions (financial and
otherwise) of the Buyer and the Issuer with representatives of the Buyer. In
accepting the Shares on the Closing Date, no oral representations or written
representations (other than those specifically made herein) have been made to
the Seller or the Principals; and
(viii) The Seller and each of the Principals is an "accredited
investor", as that term is defined in Regulation D under the Securities Act.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BUYER
As an inducement to the Seller to enter into this Agreement, the Buyer
hereby represents and warrants to the Seller as follows:
Section 5.1 Incorporation and Qualification. The Buyer is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware and has the power and lawful authority to own,
lease and operate its assets, property and business and to carry on its business
as now conducted.
The Buyer is qualified to transact business and is in good standing in each
jurisdiction in which the nature of its business or location of its property
requires such qualification, except where the failure to be so qualified and in
good standing would not result in a material adverse effect on the ability of
the Buyer to consummate the transactions contemplated by this Agreement.
Section 5.2 Authority to Execute and Perform Agreements. The Buyer has
the full legal right and power and all authority and approval required to enter
into, execute and deliver this Agreement, and to perform fully its obligations
under this Agreement. This Agreement has been duly executed and delivered by the
Buyer, and assuming the due execution hereof by each of the Seller and the
Principals, is the valid and binding obligation of the Buyer enforceable against
it in accordance with its terms.
Section 5.3 The Shares. When issued and delivered in accordance with
this Agreement, the Shares issued to the Seller will be duly authorized, validly
issued and outstanding, fully paid and non-assessable.
Section 5.4 No Broker. No broker, finder, agent or similar
intermediary has acted for or on behalf of the Buyer in connection with this
Agreement or the transactions contemplated hereby, and no broker, finder, agent
or similar intermediary is entitled to any broker's, finder's, or similar fee or
other commission in connection therewith based on any agreement, arrangement or
understanding with the Buyers or any action taken by the Buyer.
ARTICLE VI
COVENANTS AND AGREEMENTS
Section 6.1 Expenses of Sale. The Seller and the Buyer agree that each
of them shall bear their own direct and indirect expenses incurred in connection
with the negotiation and preparation of this Agreement and the consummation and
performance of the transactions contemplated hereby.
Section 6.2 Taxes. All transfer, documentary, gross receipts, sales,
use and gains taxes and similar liabilities, if any, resulting from the sale,
assignment, transfer and delivery hereunder of the Purchased Assets shall be
paid by the Seller. In the event that at any time hereafter, any claim, tax or
assessment of any kind is made by the federal, state or local authorities or any
government sub-division against the Buyer or the Issuer or its members,
managers, directors, officers, employees, stockholders, agents, representatives,
affiliates and their respective successors and assigns (collectively, the "Buyer
Group") by reason of the transfer and sale of the Purchased Assets hereunder,
then and in that event, the Seller undertakes to pay the same. Payment of any
federal, state or local taxes due from the Seller or its affiliates and filing
of all tax returns required to be filed with respect to the Seller and its
affiliates and with respect to the business and assets of the Seller shall be
the sole responsibility and obligation of the Seller. Such obligation of the
Seller to pay such taxes shall be subject to the indemnification provisions of
Article X below.
Section 6.3 Telephone Numbers. The Seller agrees that the Buyer shall
have all of the Seller's right to use, if the Buyer elects, the telephone
numbers (which telephone numbers include the Seller's telephone numbers used for
sending and receiving facsimile transmissions): (▇▇▇) ▇▇▇-▇▇▇▇ and (800)
___________, and facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, which numbers have been used
through the date hereof by the Seller.
Section 6.4 Change of Name. After the Closing, the Seller and the
Principals agree that it will, upon the Buyer's or its assigns' request: (i)
immediately discontinue and no longer use the corporate or trade name of "FERRO
FOODS CORPORATION" or any variation or derivation thereof; and (ii) deliver to
the Buyer's or its assigns' for filing an executed Certificate of Amendment to
the Seller's Certificate of Incorporation changing the Seller's corporate name
to another name approved by the Buyer or its assigns.
ARTICLE VII
BUYER'S CONDITIONS TO CLOSING
The following are conditions precedent to the obligations of the Buyer
to consummate the transactions contemplated hereby:
Section 7.1 Representations and Warranties. The representations and
warranties made by the Seller and the Principals herein shall be true and
correct in all respects on and as of the Closing Date with the same effect as
though such representations and warranties have been made on and as of the
Closing Date (except where specific representation or warranty by its terms
applies to an earlier date).
Section 7.2 Covenants. The Seller and the Principals shall have
performed and complied in all respects with all covenants, agreements, and
conditions set forth herein which are required to be performed or complied with
by them on or prior to the Closing Date, including, without limitation, the
execution and delivery of the ▇▇▇▇ of Sale and Assignment, the Lock-Up Letters,
and the Release Agreements.
Section 7.3 Bulk Transfer. The notices referred to in Section 4.15
above shall have been delivered in accordance with the provisions of the UCC,
and any waiting period thereunder shall have expired; and further, no creditor,
or group of creditors, shall have filed a claim against Seller attaching or
asserting rights of lien against any of the Purchased Assets.
Section 7.4 Consents. The required consent of any party to an
agreement set forth on Schedule 1.1 (xii) shall have been received by the Buyer
on or prior to the Closing Date.
ARTICLE VIII
RESTRICTIVE COVENANTS
Section 8.1 Confidential Information. The Seller and the Principals
hereby agree on behalf of itself and himself, as the case may be, and their
respective officers, directors, employees, stockholders, agents, representatives
and affiliates and their respective successors and assigns (collectively, the
"Seller Group") that from and after the date hereof each member of the Seller
Group shall keep secret and retain in the strictest confidence, and shall not
use for their benefit or the benefit of others except in connection with the
business and affairs of the Buyer and its affiliates, all confidential matters
relating to the Business, the Purchased Assets and the Seller and its
affiliates, including, without limitation, trade "know-how," secrets, customer
lists, supplier lists, details of contracts, pricing policies, operational
methods, marketing plans or strategies, methods of manufacture, technical
processes and other business affairs relating to the Business and to the Seller
Group learned by any member of the Seller Group heretofore or hereafter, and
shall not disclose them to anyone outside of the Buyer Group, except as required
in the course of performing its duties to the Buyer or with the Buyer's express
written consent.
Section 8.2 Non-Competition. Each of the Seller and the Principals
agree that until the third anniversary of the Closing Date, neither the Seller
nor the Principals will engage, directly or indirectly, either as principal,
agent, consultant, proprietor, creditor, stockholder, director, officer or
employee, or participate in the ownership, management, operation or control,
directly or indirectly, of any business engaged in the Business. This Section
shall not apply to the ownership of less than one percent (1%) of the capital
stock of a company having a class of capital stock which is traded on any
national stock exchange or on the over-the-counter market. Each of the Seller
and the Principals agrees that it or he will not, directly or indirectly, (i)
hire, solicit, divert or recruit or encourage any of the employees, or any
person who was an employee of the Seller, to leave the employ of Buyer, or
terminate or alter their contractual relationship in any way that is adverse, to
the Buyer's interests, (ii) solicit or divert business from the Buyer or assist
any person or entity in doing so or attempting to do so or (iii) cause or seek
to cause any person or entity to refrain from dealing or doing business with the
Buyer or assist any person or entity in doing so or attempting to do so.
Section 8.3 Rights and Remedies Upon Breach. If any member of the
Seller Group breaches, or threatens to commit a breach of, any of the provisions
of Sections 8.1 or 8.2 (collectively, the "Restrictive Covenants"), the Buyer or
its assigns shall have the following rights and remedies, each of which rights
and remedies shall be independent of the other and severally enforceable, and
all of which rights and remedies shall be in addition to, and not in lieu of,
any other rights and remedies available to the Buyer or its assigns under law or
in equity:
(i) Specific Performance. The right and remedy to have the
Restrictive Covenants specifically enforced by any court having equity
jurisdiction, it being acknowledged and agreed that any such breach or
threatened breach will cause irreparable injury to the Buyer or its assigns and
that money damages will not provide adequate remedy to the Buyer or its assigns.
(ii) Accounting. The right and remedy to require the applicable
member of the Seller Group to account for and pay over to the Buyer or its
assigns all compensation, profits, monies, accruals, increments or other
benefits (collectively, "Benefits") derived or received by such member of the
Seller Group as the result of any transactions constituting a breach of any of
the Restrictive Covenants, and the applicable member of the Seller Group shall
account for and pay over such Benefits to the Buyer or its assigns.
Section 8.4 Severability of Covenants. If any court determines that
any of the Restrictive Covenants, or any part thereof, is invalid or
unenforceable, the remainder of the Restrictive Covenants shall not thereby be
affected and shall be given full effect, without regard to the invalid portions.
Section 8.5 Enforceability in Jurisdictions. The Buyer and the Seller
and the Principals intend to and hereby confer jurisdiction to enforce the
Restrictive Covenants upon the courts of any jurisdiction within the
geographical scope of such Restrictive Covenants. If the courts of any one or
more of such jurisdictions hold the Restrictive Covenants wholly unenforceable
by reason of the breadth of such scope or otherwise, it is the intention of the
Buyer and the Seller and the Principals that such determination not bar or in
any way affect the Buyer's right to the relief provided above in the courts of
any other jurisdiction within the geographical scope of such Restrictive
Covenants.
ARTICLE IX
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
Section 9.1 Survival of Representations and Warranties.
Notwithstanding any right of the Buyer to investigate the affairs of the Seller
and notwithstanding any knowledge of facts determined or determinable by the
Buyer pursuant to such investigation or right of investigation, the Buyer has
the right to rely fully upon the representations, warranties, covenants and
agreements of the Seller and the Principals contained in this Agreement or in
any document delivered to the Buyer by the Seller and the Principals or any of
its representatives, in connection with the transactions contemplated by this
Agreement. All such representations, warranties, covenants and agreements shall
survive the execution and delivery hereof and the Closing hereunder.
ARTICLE X
INDEMNIFICATION
Section 10.1 Obligation of the Seller and the Principals to Indemnify.
The Seller and the Principals and each member of the Seller Group shall jointly
and severally indemnify, defend and hold harmless each member of the Buyer Group
from and against any losses, liabilities, damages, claims, costs and expenses,
interest, awards, judgements and penalties, or deficiencies (including
reasonable attorneys' and consultants' fees and disbursements actually suffered
or incurred by them) ("Losses") arising out of or due to:
(i) a breach of any representation, warranty, covenant or
agreement of the Seller or the Principals contained in this Agreement or in any
document or other writing delivered pursuant hereto;
(ii) any liabilities or obligations not assumed by the Buyer
pursuant to Section 2.1, including, without limitation, any liability to which
the Buyer Group may become subject under any Bulk Transfers Act within the UCC
or any similar statute as enacted in any jurisdiction, domestic or foreign,
notwithstanding Seller's attempt to comply therewith;
(iii) any liabilities or obligations relating to or in connection
with the Business or arising out of or in connection with the Purchased Assets
sold hereunder for periods ending prior to or on the Closing Date;
(iv) any liabilities or obligations of the Seller, any of the
Principals or their respective affiliates and successors and assigns to their
creditors, including, without limitation, vendors, suppliers, customers, lending
institutions, governmental authorities or agencies, or otherwise;
(v) any liabilities or obligations of the Seller, any of the
Principals or their respective affiliates and successors and assigns for any
Taxes;
(vi) any liabilities or obligations for wages, salary, bonuses,
commissions, fees, vacation or sick pay and payroll overheads which were
required to have been paid by the Seller or its affiliates and that may be
asserted against any member of the Buyer Group;
(vii) any claims under any laws or regulations affecting health,
safety, the environment or the regulation of Hazardous Materials; or
(viii) any liability or obligation relating to, or in connection
with, any liabilities, obligations of the Seller or its affiliates that have not
been specifically assumed by the Buyer pursuant to this Agreement.
Section 10.2 Notice to Indemnifying Party. If any member of the Buyer
Group (in such capacity, the "Indemnitee") receives notice of any claim or other
commencement of any action or proceeding with respect to which any other party
(or parties) is obligated to provide indemnification (in such capacity, the
"Indemnifying Party") pursuant to Section 10.1, the Indemnitee shall promptly
give the Indemnifying Party notice thereof. The Indemnifying Party may
compromise or defend, at such Indemnifying Party's own expense and by such
Indemnifying Party's own counsel, any such matter involving the asserted
liability of the Indemnitee. In any event, the Indemnitee, the Indemnifying
Party and the Indemnifying Party's counsel shall cooperate in the compromise of,
or defense against, any such asserted liability. Both the Indemnitee and the
Indemnifying Party may participate in the defense of such asserted liability and
neither may settle or compromise any claim over the objection of the other. If
the Indemnifying Party chooses to defend any claim, the Indemnitee shall make
available to the Indemnifying Party any books, records or other documents within
its control that are necessary or appropriate for such defense. If the
Indemnifying Party shall fail to defend, or if, after commencing or undertaking
any such defense, such party fails to prosecute or withdraws from such defense,
the Indemnitee shall have the right to undertake the defense or settlement
thereof, at the Indemnifying Party's sole expense. In the event of a dispute
over the obligation to provide indemnification hereunder, the prevailing party
in such dispute shall be entitled to its reasonable attorney's costs and
expenses thereof.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Notices. Any notice or other communication required or
which may be given hereunder shall be in writing and shall be delivered
personally, by facsimile transmission or sent by certified, registered or
express mail, postage prepaid, and shall be deemed given when so delivered
personally, by facsimile transmission or if mailed, two (2) days after the date
of mailing, as follows:
(i) if to the Buyer:
c/o Liberty Food Group, LLC
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Seller to:
Ferro Foods Corporation
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 11.2 Entire Agreement. This Agreement (including the Exhibits
and Schedules hereto) contains the entire agreement among the parties with
respect to the purchase of the Purchased Assets and related transactions and
supersedes all prior agreements, written or oral, with respect thereto.
Section 11.3 Waivers and Amendments. This Agreement may be amended,
modified, superseded cancelled, renewed or extended, and the terms and
conditions hereof may be waived only by a written instrument signed by the
parties or, in the case of a waiver, the party waiving compliance. No delay on
the part of any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any waiver on the part of any party
of any right, power or privilege hereunder, nor any single or partial exercise
of any right, power or privilege hereunder, preclude any other or further
exercise thereof or the exercise of any other right, power or privilege
hereunder. The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies which any party may otherwise have at law or
in equity. The rights and remedies of any party arising out of or otherwise in
respect of any inaccuracy in or breach of any representation, warranty, covenant
or agreement contained in this Agreement shall in no way be limited by the fact
that the act, omission, occurrence or other state of facts upon which any claim
of any such inaccuracy or breach is based may also be the subject matter of any
other representation, warranty, covenant or agreement contained in this
Agreement (or in any other agreement between the parties) as to which there is
no inaccuracy or breach.
Section 11.4 Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely therein without regard to
principles of conflict of laws.
Section 11.5 Consent to Jurisdiction. All suits, actions or proceedings
arising out of, or in connection with, this Agreement or the transactions
contemplated by this Agreement shall be brought in any federal or state court of
competent subject matter jurisdiction sitting in New York County. Each of the
parties hereto by execution and delivery of this Agreement, expressly and
irrevocably (i) consents and submits to the personal jurisdiction of any such
courts in any such action or proceeding; (ii) consents to the service of any
complaint, summons, notice or other process relating to any such action or
proceeding by delivery thereof to such party as set forth in Section 11.1
hereof; and (iii) waives any claim or defense in any such action or proceeding
based on any alleged lack of personal jurisdiction, improper venue, forum non
conveniens or any similar basis.
Section 11.6 Assignment. Neither the Seller nor the Principals may not
assign this Agreement or any rights and obligations hereunder. The Buyer may
assign this Agreement and any rights, remedies, benefits and obligations
hereunder. This Agreement shall be binding upon the parties hereto and any
permitted successor and assign, and with respect to each of the Principals,
their respective heirs and legal representatives.
Section 11.7 Counterparts and Facsimile. This Agreement may be executed
in two or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument. This Agreement
may be signed and delivered by any party by facsimile transmission, and such
transmission shall be deemed a valid signature.
Section 11.8 Severability of Provisions. Any portion of this Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
Section 11.9 Exhibits and Schedules. The Exhibits and Schedules to this
Agreement are hereby made a part of this Agreement as if set forth in full
herein.
Section 11.10 Headings. The Article and Section headings in this
Agreement are intended solely for convenience of reference and shall be given no
effect in the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above.
BUYER:
LIBERTY FOOD GROUP, LLC
By: Liberty Group Holdings, Inc.,
f/k/a Bio-Response, Inc.,
its sole member
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
SELLER:
FERRO FOODS CORPORATION
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Title:
By:
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
PRINCIPALS:
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▇▇▇▇▇ ▇▇▇▇▇, ▇▇., Individually
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▇▇▇▇▇ ▇▇▇▇▇▇▇, Individually