UNIT PURCHASE AGREEMENT by and between CHARGE INFRASTRUCTURE, INC., STEPHANIE WOJTOWICZ, MICHAEL S. WOJTOWICZ, ROBERT J. WOJTOWICZ and B W ELECTRICAL SERVICES LLC. DATED AS OF DECEMBER 22, 2021 UNIT PURCHASE AGREEMENT
Exhibit 10.1
EXECUTION VERSION
by and between
CHARGE INFRASTRUCTURE, INC.,
XXXXXXXXX XXXXXXXXX,
XXXXXXX X. XXXXXXXXX,
XXXXXX X. XXXXXXXXX
and
B W ELECTRICAL SERVICES LLC.
DATED AS OF DECEMBER 22, 2021
This
UNIT PURCHASE AGREEMENT (this “Agreement”),
dated as of December 22, 2021, is entered into by and between
CHARGE INFRASTRUCTURE, INC., a Delaware corporation
(“Buyer”), XXXXXXXXX
XXXXXXXXX, an individual with an address at 0 Xxxxxxx Xxxx, Xxxxx
Xxxx, XX 00000 (“SW”), XXXXXXX X.
XXXXXXXXX, an individual with an address at 0 Xxxxxxx Xxxx, Xxxxx
Xxxx, XX 00000 (“MW”), and XXXXXX X.
XXXXXXXXX, an individual with an address at 00 Xxxxxx Xxxx.,
Xxxxxxxxxx Xxxxxxx, XX 00000 (“RW,” together with SW and
MW, the “Members”), and B W
ELECTRICAL SERVICES LLC, a New Jersey limited liability company
(the “Company”). Annex A hereto contains
definitions of certain initially capitalized terms used in this
Agreement.
RECITALS
WHEREAS, the
Members together own all of the issued and outstanding units of
equity interest of the Company, consisting of one hundred (100)
units of equity interest (the “Units”),
with SW owning fifty-five (55) Units, MW owning forty (40) Units,
and RW owning five (5) Units; and
WHEREAS, the
Members wish to sell to Buyer, and Buyer wishes to purchase from
the Members, the Units, on the terms and subject to the conditions
set forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
AGREEMENT
ARTICLE
1
Purchase
and sale
1.1 Purchase
and Sale. On the terms and subject to the
conditions of this Agreement, at the Closing, the Members shall
sell, transfer and deliver the Units to Buyer, and Buyer shall
purchase the Units from the Members, free and clear of all
Encumbrances.
1.2 Purchase
Price. The purchase
price for the Units and for the covenants and agreements of the
Members hereunder shall
be Thirteen Million Five Hundred Thousand Dollars ($13,500,000.00)
(the “Base Purchase
Price”), subject to the adjustments as hereinafter
provided (as so adjusted, the “Purchase Price”), and an
issuance of which One Million Two Hundred Eighty Five Thousand
Seven Hundred Fourteen (1,285,714) shares of Common Stock of Charge
Enterprises, Inc., the parent company of the Buyer (the
“Charge
Stock”). The Purchase Price and the Charge Stock shall
be allocated among the Members as set forth on Section 5.4 of the Disclosure
Schedule.
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ARTICLE 2
Closing
2.1 Closing. The consummation of
the sale of the Units pursuant to Article 1 (the
“Closing”) shall be held
virtually (via the exchange of executed documents and other
deliverables by PDF or other means of electronic delivery) rather
than in-person, as promptly as practicable following three (3)
Business Days after the date on which the last of the conditions
set forth in Article
9 (other than those conditions that by their terms are to be
satisfied at the Closing, but subject to the satisfaction or waiver
of such conditions at the Closing) to be satisfied or waived is so
satisfied or waived, or by such other means and/or at such other
place, time and date as Buyer and the Members may agree, but in no
event later than December 31, 2021. All documents delivered and
actions taken at the Closing shall be deemed to have been delivered
or taken simultaneously, and no such delivery or action shall be
considered effective or complete unless or until all other such
deliveries or actions are completed or waived in writing by the
party against whom such waiver is sought to be enforced. The date
on which the Closing is actually held is referred to herein as the
“Closing
Date.” Subject to the provisions of Article 11, the failure to
consummate the Closing on the date and time determined pursuant to
this Section 2.1
shall not result in the termination of this Agreement and shall not
relieve any party to this Agreement of any obligation under this
Agreement. The Closing shall be deemed to be effective at 11:59
p.m. Eastern Standard Time on the Closing Date (the
“Effective
Time”) for all purposes, except as may otherwise be
expressly provided herein.
2.2 Members
Closing Deliverables. At or prior to the
Closing, the Members shall deliver to Buyer:
(a) the unit
certificate(s) evidencing all of the Units, free and clear of all
Encumbrances, duly endorsed in blank or accompanied by unit powers
or other instruments of transfer duly executed in
blank;
(b) the Indemnity
Escrow Agreement executed by the Members, and the Escrow
Agent;
(c) the PPP Escrow
Agreement executed by the Members, and the PPP Lender;
(d) a certificate
pursuant to Treasury Regulations Section 1.1445-2(b) certifying
that none of the Members is a foreign person within the meaning of
Section 1445 of the Code; and
(e) such other
documents or instruments as Buyer reasonably requests and are
reasonably necessary to consummate the Transactions.
2.3 Company
Closing Deliverables. At or prior to
the Closing (or by such other date, if any, as indicated in the
applicable subsection below), the Company shall deliver to Buyer
the following
(a) resignations
of the officers of the Company, except as Buyer may otherwise
specify;
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(b) a certificate,
dated the Closing Date and signed by a duly authorized officer of
Company, that each of the conditions set forth in Section 9.2(a) and
Section 9.2(b)
and Section 9.2(d)
have been satisfied;
(c) a certificate of
the Secretary or an Assistant Secretary (or equivalent officer) of
the Company certifying (i) that attached thereto are true and
complete copies of all resolutions adopted by the Members
authorizing the execution, delivery and performance of this
Agreement and the Transaction Documents and the consummation of the
Transactions, (ii) that all such resolutions are in full force
and effect and are all the resolutions adopted in connection with
the Transactions, and (iii) the names and signatures of the
officers of the Company authorized to sign this Agreement and the
Transaction Documents;
(d) the certificate of
formation (or other equivalent Governing Document) and all
amendments thereto of the Company, duly certified as of a recent
date by the secretary of state or similar Governmental Authority of
the jurisdiction under the Laws in which the Company is
organized;
(e) a good standing
certificate (or its equivalent) of the Company as of a recent date
from the secretary of state or similar Governmental Authority of
the jurisdiction under the Laws in which the Company is
organized;
(f) a certificate,
dated the Closing Date and signed by a duly authorized officer of
the Company, stating that the Related Party Transactions and
Relationships have been terminated and that the Company has no
residual Liability with respect thereto;
(g) To the extent there
exist any Encumbrances (1) on the equity securities of the Company
(including the Units) or (2) on the properties and assets of the
Company (other than Permitted Encumbrances) as of the Closing (the
“Company
Encumbrances”), fully executed documentation required
in connection with the release of any Company Encumbrances, in form
and substance reasonably satisfactory to Buyer providing for the
discharge in full of all Company Encumbrances;
(h) at least five (5)
Business Days prior to the Closing, (i) a final invoice from each
Person to whom Company Transaction Expenses are owed along with
instructions from such Person for paying such amounts and (ii) an
agreement by such Person that the Contract pursuant to which the
Company Transaction Expenses are owed as set forth in the final
invoice shall be deemed terminated upon payment of such Company
Transaction Expenses at Closing and that such Person thereupon
releases the Company from any and all claims under such Contract;
all in a form reasonably satisfactory to Buyer;
(i) employment
agreements with the Company in the form reasonably acceptable to
the parties thereto, duly executed by each Key Employee (the
“Employment
Agreements”);
(j) such certificates
and documents as may be necessary or appropriate to change the
authorized signatories on all bank accounts and safe deposit boxes
maintained by or in the name of the Company;
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(k) the Indemnity
Escrow Agreement executed by the Company, and the Escrow
Agent;
(l) the PPP Escrow
Agreement executed by the Company, the Buyer and the PPP
Lender;
(m) evidence of the
termination of the Company’s Cash Balance Pension Plan
effective December 31, 2021, in a form which is satisfactory to
Buyer, including but not limited to dated and executed copies of
all documents, and evidence of delivery of all notices, in
connection with the termination of the Cash Balance Pension
Plan;
(n) the original minute
books and other similar company records of the Company;
and
(o) such other
documents or instruments as Buyer reasonably requests and are
reasonably necessary to consummate the Transactions.
2.4 Buyer
Closing Deliverables. At the Closing,
Buyer shall deliver to the Members the following:
(a) each Employment
Agreement duly executed by the Company;
(b) the executed
Indemnity Escrow Agreement;
(c) the executed PPP
Escrow Agreement;
(d) the cash portion of
the Closing Purchase Price, allocated as set forth in this
Agreement;
(e) the Charge Stock;
and
(f) such other
documents or instruments as the Members reasonably request and are
reasonably necessary to consummate the Transactions.
2.5 Manner
of Payment. At Closing, the
cash portion of the Closing Purchase Price shall be paid by the
Buyer as follows:
(a) Buyer shall deposit
the sum of One Million Three Hundred Fifty Thousand Dollars
($1,350,000.00) (the “Indemnity Escrow”) into
an interest-bearing escrow account maintained by Buyer’s
counsel, Xxxxxx & Xxxxxxx, P.C. (the “Escrow Agent”). The
Escrow Agent shall invest, hold, deal with and distribute the
Indemnity Escrow pursuant to the terms and provisions of an Escrow
Agreement which contains terms and conditions which are reasonably
satisfactory to the Members, the Buyer, and the Escrow Agent (the
“Indemnity Escrow
Agreement”). The Indemnity Escrow shall be held by the
Escrow Agent until the eighteen (18) month anniversary of the
Closing Date, subject to the terms of the Escrow Agreement, to
serve as an escrow fund for the payment of any Losses for which any
Buyer Indemnitee is entitled to indemnification pursuant to
Section
10.2.
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(b) To the extent that,
at the time of Closing, the Company has any outstanding or
potentially outstanding obligations with regard to the Paycheck
Protection Program (“PPP Loan”), Buyer shall
deposit with the lender which provided the PPP Loan to the Company
(the “PPP
Lender”) in an amount equal to Two Million Dollars
($2,000,000.00) (the “PPP Escrow”). The PPP
Escrow shall be held by the PPP Lender pursuant to an escrow
agreement by and among the Company, the Buyer, and the PPP Lender
(the “PPP Escrow
Agreement”). The terms of the PPP Escrow Agreement,
this Agreement, and the actions taken in furtherance thereof by the
parties thereto shall at all times be in compliance with the
guidance provided by the United States Small Business
Administration pursuant to Procedural Notice 5000-20057 and all
other applicable Laws;
(c) To the extent that
any Company Encumbrances are in existence at the time of Closing,
Buyer shall pay any amount necessary to any Person necessary to
remove such Encumbrances from the Base Purchase Price pursuant to
such documents as may be provided by the Company and Members under
Section
2.3(g);
(d) The remaining
balance (as it may be adjusted in accordance with the terms of this
Agreement) shall be paid to the Members in accordance with their
respective pro rata shares as set forth on Section 5.4 of the Disclosure
Schedule in the form of immediately available funds by wire
transfer.
2.6 Withholding.
Provided Buyer has given at least three (3) business days’
written notice to Members (including amounts to be withheld and
reasons for withholding), Buyer shall be entitled to deduct and
withhold from the consideration or other amounts otherwise payable
pursuant to this Agreement to any Person such amounts as it is
required to deduct and withhold with respect to such payment under
the Code, or any other provision of applicable Law. To the extent
that amounts are so withheld by Buyer, such withheld amounts shall
be (a) paid to the appropriate Tax authority and (b) treated for
all purposes of this Agreement as having been paid to the
appropriate recipient in respect of which such deduction and
withholding was made by Buyer.
ARTICLE 3
Payment
Adjustments
3.1 Definitions.
As used herein:
(a) “Accounting Principles”
means GAAP, using the same accounting methods, practices,
principles, policies and procedures, with consistent
classifications, judgments and valuation and estimation
methodologies that were used in the preparation of the Financial
Statements for the most recent fiscal year end as if such accounts
were being prepared and audited as of a fiscal year
end.
(b) “Closing Company Transaction
Expenses” means Company Transaction Expenses that
remain unpaid as of immediately prior to the Closing (but inclusive
of all amounts that will or may become due at or following the
Closing by reason of the Transactions).
(c) “Closing Members’
Equity” means (i) the Assets of the Company, less (ii)
the Liabilities of the Company, as determined at close of business
on the Closing Date with a methodology consistent with that
utilized in the Company’s Year-End Financial Statement for
2020.
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(d) “Company
Transaction Expenses” means the aggregate amount of
(i) all fees and expenses incurred by the Company in connection
with the negotiation, preparation, execution and performance of
this Agreement and the Transaction Documents, and the Transactions,
including all legal, financial advisory, accounting, consulting and
other fees and expenses and any broker’s or finder’s
fees, (ii) all amounts (plus any associated withholding Taxes or
any Taxes required to be paid by the Company with respect thereto
and plus any increase in workers’ compensation premiums as a
result of such payments) payable by the Company, whether
immediately or in the future, under any “change of
control,” retention, termination, compensation, severance or
other similar arrangements by reason of (either alone or in
conjunction with any other event, such as termination or
continuation of employment) the consummation of the Transactions or
any Transaction Document (including such amounts payable to any
employee of the Company at the election of such employee pursuant
to any such arrangements) and (iii) any other fees, costs, expenses
or payments resulting from the change of control of the Company or
otherwise payable in connection with receipt of any consent or
approval in connection with the Transactions; provided, however, as
to the change of control expenses described in subparagraphs (ii)
and (iii) above, such expenses shall evenly split and paid by the
Members and Buyer.
(e) “Assets”
means cash and cash equivalents, accounts receivable, cost in
excess of xxxxxxxx, inventory, prepaid expenses, and other current
assets pursuant to the Accounting Principles, but excluding (i) the
portion of any prepaid expense of which Buyer will not receive the
benefit following the Closing, and (ii) deferred Tax assets,
determined in accordance with the Accounting Principles and as
calculated with a methodology consistent with that utilized in the
Company’s Year-End Financial Statement for 2020.
(f) “Liabilities” means
accounts payable, accrued Taxes (including but not limited to any
Tax liability related to the Pre-Closing Reorganization), xxxxxxxx
in excess of cost, accrued expenses, the amount of the PPP Loan not
receiving final forgiveness, and other current liabilities pursuant
to the Accounting Principles, but excluding deferred Tax
liabilities, current portions of long-term debt, deferred
consideration and other Indebtedness that is satisfied at Closing,
determined in accordance with the Accounting Principles and as
calculated with a methodology consistent with that utilized in the
Company’s Year-End Financial Statement for 2020.
(g) “Target Members’
Equity” means Six Million Three Hundred Eight Thousand
Seven hundred Twenty Seven Dollars ($6,308,727) as was calculated
in the methodology utilized in the Company’s Year-End
Financial Statement for 2020.
3.2 Closing
Estimates; Net Estimated Adjustment Amount.
(a) On or before the
Closing Date, the Company shall prepare and deliver to Buyer a
written statement (the form of which shall be mutually agreed to by
the parties) (the “Estimated Closing
Statement”) that includes a good-faith estimated
balance sheet of the Company as of the Effective Time prepared in
accordance with the Accounting Principles (the “Estimated Closing Balance
Sheet”) and a good-faith estimate of the following and
a statement of the Net Estimated Adjustment Amount:
(i) the Closing
Company Transaction Expenses (the “Estimated Closing Company Transaction
Expenses”); and
(ii) the
Closing Members’ Equity (the “Estimated Closing Members’
Equity”).
(i) minus the Estimated Closing
Company Transaction Expenses;
(ii) minus
the amount, if any, by which the Target Members’ Equity
exceeds the Estimated Closing Members’ Equity;
and
(iii) plus
the amount, if any, by which the Estimated Closing Members’
Equity exceeds the Target Members’ Equity.
3.3 Post-Closing
Adjustments.
(a) Within one
hundred twenty (120) days after the Closing Date, Buyer shall
prepare, or cause to be prepared, and deliver to the Members a
written statement reasonably reflecting the form of the Estimated
Closing Statement (the “Closing Statement”) that
shall include a balance sheet of the Company as of the Effective
Time prepared in accordance with the Accounting Principles and a
calculation of the following and a statement of the Net Adjustment
Amount:
(i) the Closing Company
Transaction Expenses; and
(ii) the
Closing Members’ Equity.
(b) During the
thirty (30) day period
following Buyer’s delivery of the Closing Statement to the
Members (the “Review
Period”), Buyer shall provide the Members and their
Representatives reasonable access to the relevant books and records
of the Company for the purpose of facilitating the Members’
review of the Closing Statement. The Closing Statement shall become
final and binding on the last day of the Review Period, unless
prior to the end of the Review Period, the Members deliver to Buyer
a written notice of disagreement (a “Notice of Disagreement”),
which shall set forth in reasonable detail (i) the items or amounts
with which the Members disagree and the basis for such disagreement
(which disagreement shall be limited to mathematical errors, the
asserted failure of such calculation of the Closing Statement to be
made in accordance with the terms of this Section 3.3 or the
determination of whether the relevant requirements have been
satisfied) and (ii) the Members’ proposed adjustments to the
Closing Statement. The Members shall be deemed to have agreed with
all items and amounts in the Closing Statement not specifically
referenced in a Notice of Disagreement provided prior to the end of
the Review Period.
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(c) During the
thirty (30) day period following delivery of a Notice of
Disagreement by the Members to Buyer (the “Resolution Period”), such
parties in good faith shall seek to resolve in writing any
differences that they may have with respect to the computation of
the amounts as specified therein. Any disputed items resolved in
writing between the Members and Buyer within the Resolution Period
shall be final and binding on the parties for all purposes
hereunder. If the Members and Buyer have not resolved all such
differences by the end of the Resolution Period, the Members and
Buyer shall submit, in writing, such differences to the Accounting
Expert. The “Accounting Expert” shall
be Xxxxxx LLP or, in the event that it is not available or is not a
Neutral Accounting Firm, a Neutral Accounting Firm selected by
mutual agreement of Buyer and the Members; provided, however, that (i) if, within
fifteen (15) days after the end of the Resolution Period, such
parties are unable to agree on a Neutral Accounting Firm to act as
the Accounting Expert, then each party shall select a Neutral
Accounting Firm and such firms together shall select the Neutral
Accounting Firm to act as the Accounting Expert, and (ii) if any
party does not select a Neutral Accounting Firm within ten (10)
days of written demand therefor by the other party, then the
Neutral Accounting Firm selected by the other party shall act as
the Accounting Expert. A “Neutral Accounting Firm”
means an independent accounting firm of nationally recognized
standing that is not, at the time it is to be engaged hereunder,
rendering services to any party, or any Affiliate of either, and
has not done so within the two (2) year period prior
thereto.
(d) The
parties shall arrange for the Accounting Expert to agree in its
engagement letter to act in accordance with this Section 3.3(d). The parties
shall make readily available to the Accounting Expert all relevant
books and records within such party’s control reasonably
requested by the Accounting Expert. Each party shall present a
summary to the Accounting Expert (which summary shall also be
concurrently provided to the other party) within twenty (20) days
of the appointment of the Accounting Expert detailing such
party’s views as to the correct nature and amount of each
item remaining in dispute from the Notice of Disagreement (and for
the avoidance of doubt, no party may introduce a dispute to the
Accounting Expert that was not originally set forth on the Notice
of Disagreement). Within ten (10) days of receipt of a summary from
the other party, the receiving party may present a responsive
summary to the Accounting Expert (which responsive summary shall
also be concurrently provided to the other party). Each party may
make an oral presentation to the Accounting Expert (in which case,
such presenting party shall notify the other party of such
presentation, and the other party shall have the right to be
present (and speak) at such presentation), within thirty (30) days
of the appointment of the Accounting Expert. The Accounting Expert
shall have the opportunity to present written questions to either
party, a copy of which shall be provided to the other party. There
shall be no ex parte
communications between any party (or its Representatives), on the
one hand, and the Accounting Expert, on the other hand, relating to
any disputed matter and unless requested by the Accounting Expert
in writing and with notice to the other party (with the other party
having the right to view and/or attend such communications). Except
for the communications contemplated by the foregoing sentence, no
party may present any additional information or arguments to the
Accounting Expert, either orally or in writing. The Accounting
Expert shall consider only those items and amounts in the
Members’ and Buyer’s respective calculations that are
identified as being items and amounts to which the Members and
Buyer have been unable to agree, and shall act as an expert only
(and thus not as an arbitrator). In resolving any disputed item,
the Accounting Expert may not assign a value to any item greater
than the greatest value for such item claimed by either Buyer or
the Members, or less than the smallest value for such item claimed
by Buyer or the Members. The Accounting Expert shall make a written
determination within sixty (60) days of its appointment as to each
such disputed item, which determination shall be final and binding
on the parties for all purposes hereunder absent manifest
mathematical error or manifest disregard for the provisions of this
Section 3.3 (and,
in the event of such manifest error or disregard, the written
determination shall be referred back to the Accounting Expert to
correct the same). Notwithstanding the foregoing, the Accounting
Expert shall have no authority to resolve any dispute regarding the
interpretation of any provision of this Agreement or whether a
party has breached any covenant contained herein, it being
understood and agreed that any such dispute shall be resolved
solely as provided in Article 10. All fees and
expenses of the Accounting Expert in resolving the dispute shall be
allocated between the Members, on the one hand, and Buyer, on the
other hand, such that the amount paid by the Members bears the same
proportion that the aggregate dollar amount unsuccessfully disputed
by the Members bears to the total dollar amount of the disputed
items that were submitted for resolution to the Accounting Expert,
and Buyer shall pay the balance. For purposes of illustration only,
if the Closing Company Transaction Expenses is disputed to be $900
by the Members and $1,000 by Buyer, and the Closing Company
Transaction Expenses is determined by the Accounting Expert to be
$940, then the Members would bear 40% of the fees and expenses of
the Accounting Expert because the amount disputed was $100 and the
amount unsuccessfully disputed by the Members was $40.
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(i) minus the amount, if any, by
which the Closing Company Transaction Expenses paid by the Company
after Closing exceed the Estimated Closing Company Transaction
Expenses;
(ii) plus
the amount, if any, by which the Estimated Closing Company
Transaction Expenses exceed the Closing Company Transaction
Expenses;
(iii) minus
the amount, if any, by which the Estimated Closing Members’
Equity exceeds the Closing Members’ Equity;
(iv) plus
the amount, if any, by which the Closing Members’ Equity
exceeds the Estimated Closing Members’ Equity.
(f) If the Net
Adjustment Amount is positive, Buyer shall promptly (and in no
event later than five (5) Business Days following the final
determination of the Net Adjustment Amount) pay the dollar value of
the Net Adjustment Amount to the Members in accordance with the
allocation set forth on Section 5.4 of the Disclosure
Schedule, by wire transfer of immediately available funds to an
account designated in writing by the Members; and
(g) If the Net
Adjustment Amount is negative (in which case the
“Net Adjustment
Amount” shall be deemed to be equal to the absolute
value of such amount), the Members shall promptly (and in no event
later than five (5) Business Days following the final determination
of the Net Adjustment Amount pay the dollar value of the Net
Adjustment Amount by wire transfer of immediately available funds
to Buyer or its designee.
3.4 PPP Adjustments.
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(a) The final
forgiveness of all or a portion of the PPP Loan, as determined by
the SBA (“PPP
Forgiveness”) post-Closing, shall be a reduction to
the Current Liabilities of the Company (the “Post-Closing PPP
Adjustment”) and an adjustment to the Purchase Price.
Buyer shall pay an amount equal to the Post-Closing PPP Adjustment
to the Members on the later of (i) the date on which the Net
Adjustment Amount, if a positive amount, is paid by Buyer to the
Members (if PPP Forgiveness is obtained prior to the determination
of the Net Adjustment Amount, or (ii) if PPP Forgiveness is
determined more than one hundred twenty (120) days following the
Closing, within sixty (60) days following the final determination
of PPP Forgiveness. This payment shall be in addition to the
release of the PPP Escrow funds to Members.
(b) In the event that
PPP Forgiveness is not determined on or before one hundred twenty
(120) days following the Closing Date, the Members shall also have
the option to provide sixty (60) days’ notice to Buyer that
they seek to receive an advance payment of the PPP Escrow from
Buyer (the “PPP
Forgiveness Advance”). Buyer shall make payment of the
PPP Forgiveness Advance to the Members within such sixty (60) day
period. Once the Members provide notice to Buyer seeking the PPP
Forgiveness Advance, the Members agree that upon release of the PPP
Escrow, such PPP Escrow funds shall be released to directly to
Buyer, and the Members shall assign to Buyer, and shall have no
further rights, to the same. Whether the Members elect to receive
the PPP Forgiveness Advance shall not have any impact on the
Post-Closing PPP Adjustment.
3.5 Cash Balance Pension
Adjustment.
(a) The final approval
of the Cash Balance Pension Plan termination and the required
balance of the same shall be determined by the Pension Benefit
Guaranty Corporation (“PBGC”). The Estimated
Closing Statement provided by Seller prior to Closing includes
Seller’s expected remaining contribution to the Cash Balance
Pension Plan (listed as a $758,100.00 long-term pension liability
on the Year-End Financial Statement for 2020) and possible expenses
related to termination and settlement of the same (the
“Estimated Plan
Liabilities”). The surplus or deficit, as applicable,
between (i) the required balance of the Cash Balance Pension Plan
determined by the PBGC and any and all expenses or costs incurred
post-Closing with regard to the complete funding and termination of
the Cash Balance Pension Plan and (ii) the Estimated Plan
Liabilities shall be an adjustment to the Purchase Price (the
“Cash Balance
Pension Plan Adjustment”).
(b) If the Cash Balance
Pension Plan Adjustment is a surplus amount, then Buyer shall pay
the amount of such Cash Balance Pension Plan Adjustment to the
Members within sixty (60) days of such determination.
(c) If the Cash Balance
Pension Plan Adjustment is a deficit amount, then the Members shall
pay the amount of such Cash Balance Pension Plan Adjustment to the
Buyer within sixty (60) days of such determination. If such deficit
amount is not paid to Buyer by the Members within such sixty (60)
day period, Buyer may utilize the Indemnity Escrow to satisfy such
deficit amount, and such amount shall not be subject to any of the
limitations set forth in Section 10.6.
3.6 For avoidance of
doubt, nothing in this Article 3 shall limit
Buyer’s right to seek indemnification pursuant to
Article
10.
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ARTICLE 4
Representations
and warranties of the members
Each
Member hereby represents and warrants to Buyer that the statements
contained in this Article
4 are true and correct on the date hereof and shall be true
and correct on the Closing Date as if made thereon:
4.1 Authority
and Enforceability. Each Member has
all requisite power and authority, and has taken all action
necessary, to execute and deliver this Agreement and each
Transaction Document and to perform its obligations hereunder and
thereunder. This Agreement has been, and each Transaction Document
will be prior to the Closing, duly authorized, executed and
delivered by the Members, and this Agreement constitutes, and each
Transaction Document when so executed and delivered will
constitute, the legal, valid and binding obligations of the
Members, enforceable against the Members in accordance with their
terms.
4.2 Title
to Units.
(a) Each Member is the
record and beneficial owner of, and has good and valid title to,
his or her respective Units, free and clear of all Encumbrances. No
Member is a party to any option, warrant, right, contract, call,
put or other agreement or commitment providing for the disposition
or acquisition of any of the Units (other than this Agreement). No
Member has any other debt or ownership interest in the
Company.
(b) Other than this
Agreement, the Units are not subject to any voting trust agreement
or other Contract restricting or otherwise relating to the voting,
dividend rights or other disposition of the Units.
4.3 No
Conflict. The execution and
delivery by each Member of this Agreement and each Transaction
Document, and the performance by him or her of any actions
contemplated hereunder or thereunder, does not and will not,
directly or indirectly (with or without notice or lapse of
time):
(a) Conflict with or
violate any provision of the Governing Documents of the
Company;
(b) Require notice,
consent or approval under, conflict with, violate, result in a
breach of, result in the acceleration of obligations, loss of a
benefit or increase in Liabilities or fees under, create in any
Person the right to terminate, cancel or modify, or cause a default
under or give rise to any rights or penalties under (i) any
provision of Law relating to any Member, (ii) any provision of
any Governmental Order to which any Member or any of his or her
properties are subject, (iii) any provision of any Contract to
which any Member or his or her properties are bound, or
(iv) any other restriction of any kind or character to which
any Member or his or her properties are subject; or
(c) Require a
registration, filing, application, notice, consent, approval,
order, qualification or waiver with, to or from any Governmental
Authority except as may be set forth on Section 4.3 of the Disclosure
Schedule.
-10-
4.4 Legal
Proceedings. There are no
Actions pending or, to the Member’s knowledge, threatened
against or by the Members or any of his or her Affiliates or
Related Persons that challenge or seek to prevent, enjoin or
otherwise delay the Transactions.
4.5 United
States Person. Each Member is a
United States Person (as defined in Section 7701(a)(3) of the
Code) or a disregarded entity of a United States Person within the
meaning of Treasury Regulation
Section 301.7701-3.
ARTICLE 5
Representations
and warranties of the company
The
Company hereby represents and warrants to Buyer that the statements
contained in this Article
5 are true and correct on the date hereof and shall be true
and correct on the Closing Date as if made thereon:
5.1 Organization
and Qualification of the Company. The Company is a
limited liability company duly organized, validly existing and in
good standing under the Laws of the State of New Jersey and has
full company power and authority to own, operate or lease the
properties and assets now owned, operated or leased by it and to
carry on its business as it has been and is currently conducted.
Section 5.1 of the
Disclosure Schedule sets forth each jurisdiction in which the
Company is licensed or qualified to do business, and the Company is
duly licensed or qualified to do business and is in good standing
in each jurisdiction in which the properties owned or leased by it
or the operation of the Business by it makes such licensing or
qualification necessary.
5.2 Authority;
Board Approval. The Company has
full company power and authority to enter into and perform its
obligations under this Agreement and the Transaction Documents to
which it is a party and to consummate the Transactions. The
execution, delivery and performance by the Company of this
Agreement and the Transaction Documents and the consummation by the
Company of the Transactions have been duly authorized by all
requisite company action on the part of the Company and no other
company proceedings on the part of the Company are necessary to
authorize the execution, delivery and performance of this Agreement
or to consummate the Transactions. This Agreement has been duly
executed and delivered by the Company, and (assuming due
authorization, execution and delivery by each other party hereto)
this Agreement constitutes a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its
terms. When each Transaction Document to which the Company is or
will be a party has been duly executed and delivered by the Company
(assuming due authorization, execution and delivery by each other
party thereto), such Transaction Document will constitute a legal
and binding obligation of the Company enforceable against it in
accordance with its terms.
5.3 No
Conflicts; Consents. The execution and
delivery by the Company of this Agreement and each Transaction
Document, and the performance by it of any actions contemplated
hereunder or thereunder, does not and will not, directly or
indirectly (with or without notice or lapse of time):
(a) Conflict with or
violate any provision of the Governing Documents of the
Company;
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(b) Require notice,
consent or approval under, conflict with, violate, result in a
breach of, result in the acceleration of obligations, loss of a
benefit or increase in Liabilities or fees under, create in any
Person the right to terminate, cancel or modify, or cause a default
under or give rise to any rights or penalties under (i) any
provision of Law relating to the Company, (ii) any provision
of any Governmental Order to which the Company or any of its
properties are subject, or (iii) any provision of any Material
Contract;
(c) To the
Company’s Knowledge, cause (i) the Company to become
subject to, or to become liable for the payment of, any Tax, or
(ii) any of the assets of the Company to be reassessed or
revalued by any Governmental Authority or subject to an
Encumbrance; or
(d) Require a
registration, filing, application, notice, consent, approval,
order, qualification or waiver with, to or from any Governmental
Authority, except as may be set forth on Section 4.3 of the Disclosure
Schedule.
5.4 Capitalization.
(a) The authorized
units of the Company consist of One Hundred (100) Units, of which
One Hundred (100) Units are issued and outstanding as of the close
of business on the date of this Agreement.
(b) All of the Units
are owned beneficially and of record by the Members in such amounts
set forth on Section
5.4 of the Disclosure Schedule, free, and clear of all
Encumbrances. The Units represent all of the outstanding ownership
interests in the Company. All of the Units have been duly
authorized, are validly issued, fully paid, and non-assessable and
have been offered, issued and transferred without violation of any
preemptive right or other right to purchase and were issued and/or
transferred in compliance with all applicable Laws, the Governing
Documents of the Company and the Contracts to which the Company is
a party or otherwise bound. Other than the Units, there are no
other equity or other ownership interests in the Company or
outstanding securities convertible or exchangeable into ownership
interests of the Company, including any other options, warrants,
purchase rights, preemptive rights, subscription rights, conversion
rights, exchange rights, calls, puts, rights of first refusal,
right of first offer, anti-dilution protections, obligations,
commitments, plans or other Contracts or similar rights that could
require the Company to issue, sell or otherwise cause to become
outstanding or to acquire, repurchase or redeem (or establish a
sinking fund with respect to redemption) ownership interests in the
Company or require the Company to make any payments based on the
price or value of the Units or dividends paid thereon. No holder of
Indebtedness of the Company has any right to vote or to convert or
exchange such Indebtedness for ownership interests of the Company.
There are no outstanding or authorized equity appreciation,
contingent value, phantom equity, profit participation, or similar
rights with respect to the Company. There are no voting trusts,
proxies, or other Contracts with respect to the voting of the
ownership interests of the Company. Upon consummation of the
Transactions, Buyer will be the sole owner, beneficially and of
record, of one hundred percent (100%) of the issued and outstanding
equity interests of the Company, free and clear of any
Encumbrances.
(c) The Company has
delivered to Buyer or otherwise made available copies of the
Governing Documents of the Company. The minute books of the
Company, which will be delivered to Buyer at Closing, accurately
reflect in all material respects all actions taken at all meetings
and consents in lieu of meetings of Members, and all actions taken
at all meetings and consents in lieu of meetings of its Members and
all committees, and no material meetings of any such Members or
committees have been held for which minutes have not been prepared
and are not contained in such minute books.
-12-
5.5 Subsidiaries;
Joint Ventures. The Company does
not have any Subsidiary, nor does the Company own any stock, units,
or other equity or securities in any other Company
5.6 Financial
Statements.
(a) Complete copies
of the Company’s audited financial statements consisting of
the balance sheets of the Company dated as of December 31, 2019,
and the reviewed financial statements consisting of the balance
sheets of the Company dated as of December 31, 2018 and December
31, 2020, and the related statements of income and retained
earnings, Members’ equity and cash flow for the years then
ended (the “Year-End Financial
Statements”), and unaudited and unreviewed financial
statements consisting of the balance sheet of the Company as of
November 30, 2021 and the related statements of income and retained
earnings, Members’ equity and cash flow for the eleven (11)
month period then ended
(the “Interim Financial
Statements” and together with the Year-End Financial Statements, the
“Financial
Statements”) have been delivered or otherwise made
available to Buyer. The Financial Statements have been prepared in
accordance with GAAP applied on a consistent basis throughout the
period involved, subject, in the case of the Interim Financial
Statements, to normal and recurring year-end adjustments (the
effect of which will not be materially adverse) and the absence of
notes (that, if presented, would not differ materially from those
presented in the Year-End Financial
Statements). The Financial Statements fairly and accurately
present in all material respects the financial condition of the
Company as of the respective dates they were prepared and the
results of the operations of the Company for the periods indicated.
The reviewed balance sheet of the Company as of December 31,
2020 is referred to
herein as the “Year-End Balance
Sheet” and the date thereof as the “Year-End Balance Sheet
Date” and the balance sheet of the Company as of
October 31, 2021 is referred to herein as the “Interim Balance
Sheet” and the date thereof as the “Interim Balance Sheet
Date”.
(b) The books of
account and financial records of the Company are true and correct
in all material respects and have been prepared and are maintained
in accordance with GAAP applied on a consistent basis throughout
the period involved. The Company has not made any changes in its
accounting practices since the Year-End Balance Sheet Date. The
Company maintain a standard system of accounting established and
administered in accordance with GAAP.
(c) The Company
maintains accurate books and records reflecting its assets and
liabilities and maintains proper and adequate internal accounting
and record-keeping controls that provide reasonable assurance that
(i) it maintains no off-the-book accounts and its assets and
properties are used only in accordance with management’s
directives, (ii) transactions are executed in accordance with
management’s authorizations, (iii) transactions are
recorded as necessary to permit preparation of financial statements
and to maintain asset accountability, (iv) access to assets is
permitted only in accordance with management’s authorization,
(v) the recorded accounting for assets is compared with the
existing assets at regular intervals and appropriate action is
taken with respect to any differences, (vi) accounts, notes and
other receivables are recorded accurately and do not include any
amounts for which there is no written contractual commitment to
pay, and proper and adequate procedures are implemented to effect
the collection of accounts, notes and other receivables on a
current and timely basis, and (vii) it maintains records in
accordance with statutory records retention
requirements.
-13-
(d) Except as set forth
on Section 5.6(d)
of the Disclosure Schedule, has not received any loans, grants,
subsidies or other financial assistance from a Governmental
Authority.
5.7 No
Undisclosed Liabilities; Indebtedness. The Company does
not have any Liabilities, except (a) those which are
adequately reflected or reserved against in the Year-End Balance Sheet, and (b) those
which have been incurred in the Ordinary Course of Business since
the Year-End Balance Sheet Date
and which are not, individually or in the aggregate, material in
amount. Section 5.7
of the Disclosure Schedule sets forth all of the Indebtedness
of the Company as of the date hereof, all of which shall be paid
off prior to the Closing unless otherwise noted on Section 5.7 of the Disclosure
Schedules (“Permitted
Indebtedness”).
5.8 Absence
of Certain Changes, Events and Conditions. Except as set
forth in Section
5.8 of the Disclosure Schedule, since the Year-End Balance
Sheet Date, there has not been with respect to the Company
any:
(a) event, occurrence
or development that has had, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse
Effect;
(b) amendment of the
Governing Documents of the Company;
(c) split, combination
or reclassification of any units of its equity
interests;
(d) issuance, sale or
other disposition of any of its equity interests, or grant of any
options, warrants or other rights to purchase or obtain (including
upon conversion, exchange or exercise) any of its equity
interests;
(e) declaration or
payment of any distributions on or in respect of any of its equity
interests or redemption, purchase or acquisition of its equity
interests;
(f) change in any
method of accounting or accounting practice of the Company, except
as required by GAAP or as disclosed in the notes to the Financial
Statements;
(g) change in the
Company’s cash management practices or policies, practices
and procedures with respect to collection of accounts receivable,
establishment of reserves for uncollectible accounts, accrual of
accounts receivable, inventory control, prepayment of expenses,
payment of trade accounts payable, accrual of other expenses,
deferral of revenue and acceptance of customer
deposits;
(h) entry into or
modification or amendment of any Material Contract;
(i) termination of a
Contract that, if in existence on the date hereof, would have been
a Material Contract;
-14-
(j) incurrence,
assumption or guarantee of any indebtedness for borrowed money
except unsecured current obligations and Liabilities incurred in
the Ordinary Course of Business;
(k) transfer,
assignment, sale or other disposition of any of the assets shown or
reflected in the Year-End
Balance Sheet or cancellation of any debts or
entitlements;
(l) transfer,
assignment or grant of any license or sublicense of any material
rights under or with respect to any Company Intellectual Property
or Company IP Agreements;
(m) material damage,
destruction or loss (whether or not covered by insurance) to its
property;
(n) any capital
investment in, or any loan to, any other Person;
(o) acceleration,
termination, material modification to or cancellation of any
Material Contract;
(p) any material
capital expenditures in excess of $25,000.00;
(q) imposition of any
Encumbrance upon the Company’s properties, equity interests
or assets, tangible or intangible;
(r) (i) grant of
any bonuses, whether monetary or otherwise, or increase in any
wages, salary, severance, pension or other compensation or benefits
in respect of its employees, officers, directors, independent
contractors or consultants, other than as provided for in any
written agreements or required by applicable Law or in the Ordinary
Course of Business, (ii) material change in the terms of
employment for any employee or any termination of any employees, or
(iii) action to accelerate the vesting or payment of any
compensation or benefit for any current or former employee,
officer, director, independent contractor or
consultant;
(s) hiring or promoting
any person except to fill a vacancy in the Ordinary Course of
Business;
(t) adoption,
modification or termination of any: (i) employment, severance,
retention or other agreement with any current or former employee,
officer, director, independent contractor or consultant,
(ii) Benefit Plan or (iii) collective bargaining or other
agreement with a Union, in each case whether written or
oral;
(u) any loan to (or
forgiveness of any loan to), or entry into any other transaction
with, any of its Members, managers, officers and
employees;
(v) entry into the
settlement or compromise of any Action or any default or consent to
entry of any judgment or admission of any liability with respect
thereto;
(w) entry into a new
line of business or abandonment or discontinuance of existing lines
of business;
-15-
(x) adoption of any
plan of merger, consolidation, reorganization, liquidation or
dissolution or filing of a petition in bankruptcy under any
provisions of federal or state bankruptcy Law or consent to the
filing of any bankruptcy petition against it under any similar
Law;
(y) promotional, sales,
discount or other activity outside of the Ordinary Course of
Business that has had, or would reasonably be expected to have, the
effect of accelerating sales prior to the Closing that would
otherwise be expected to occur subsequent to the
Closing;
(z) purchase, lease or
other acquisition of the right to own, use or lease any property or
assets for an amount in excess of Twenty Five Thousand Dollars
($25,000.00), individually (in the case of a lease, per annum) or
One Hundred Thousand Dollars ($100,000.00) in the aggregate (in the
case of a lease, for the entire term of the lease, not including
any option term);
(aa) acquisition
by merger or consolidation with, or by purchase of a substantial
portion of the assets or equity of, or by any other manner, any
business or any Person or any division thereof;
(bb) action
by the Company to make, change or rescind any Tax election, amend
any Tax Return or take any position on any Tax Return, take any
action, omit to take any action or enter into any other transaction
that would have the effect of increasing the Tax liability or
reducing any Tax asset of Buyer in respect of any Post-Closing Tax
Period; or
(cc) any
Contract to do any of the foregoing, or any action or omission that
would result in any of the foregoing.
5.9 Material
Contracts.
(a) Section 5.9(a) of the
Disclosure Schedule lists each of the following Contracts to
which the Company is a party or by which the Company is otherwise
bound and which Contract is executory and has not been fully
performed or terminated (each Contract set forth or required to be
set forth on Section
5.9(a) of the Disclosure Schedule, each Company IP
Agreements set forth or required to be set forth in Section 5.13(b) of the
Disclosure Schedule, a “Material
Contract”), identified in such Section of the
Disclosure Schedule by reference to the applicable subsection
below:
(i) all Contracts
involving aggregate payments to or from the Company in excess of
Two Hundred Fifty Thousand Dollars ($250,000.00) and which, in each
case, cannot be cancelled by the Company without penalty or without
more than thirty (30) days’ notice;
(ii) all
Contracts with suppliers pursuant to which the Company has paid
more than Hundred Thousand Dollars ($100,000.00) in the last twelve
(12) months;
(iii) all
Contracts with customers pursuant to which the Company has received
more than Two Hundred Fifty Thousand Dollars ($250,000.00) in the
last twelve (12) months;
-16-
(iv) all
Contracts that require the Company to purchase its total
requirements of any product or service from a third party;
(v) all Contracts
providing for the Company to be the exclusive provider of any
product or service to any Person, or that otherwise involve the
granting by any Person to the Company or the Company to any Person
of exclusive rights of any kind;
(vi) all
Contracts that provide for the assumption of any Tax, environmental
or other Liability of any Person;
(vii) all
Contracts that relate to the acquisition or disposition of any
business, a material amount of equity or assets of any other Person
or any real property (whether by merger, sale of equity, sale of
assets or otherwise);
(viii) all
Contracts with distributors and sales representatives pursuant to
which the Company has paid more than Hundred Thousand Dollars
($100,000.00) in the last twelve (12) months;
(ix) all
broker, dealer, manufacturer’s representative, franchise,
agency, sales promotion, market research, marketing consulting and
advertising Contracts;
(x) all Contracts with
employees and independent contractors and consultants;
(xi) except
for Contracts relating to trade payables, all Contracts relating to
Indebtedness;
(xii) all
franchise, construction, fidelity, performance and other bonds,
guaranties in lieu of bonds and letters of credit posted by or on
behalf of the Company;
(xiii) all
Contracts with any Governmental Authority;
(xiv) all
Contracts that limit or purport to limit the ability of the Company
to compete in any line of business or with any Person or in any
geographic area or during any period of time, that restriction the
ability of the Company to do business with any Person or hire or
solicit any Person, or that restricts the right of the Company to
sell to or purchase from any Person, or that grants the other party
or any third person “most favored nation” status or any
type of special discount rights, or grants any rights of first
refusal, rights of first negotiation or similar rights to any
Person;
(xv) all
Contracts pursuant to which the Company is the lessee or lessor of,
or holds, uses, or makes available for use to any Person,
(A) any real property or (B) any tangible personal
property and, in the case of clause (B), that involves an
aggregate future or potential liability or receivable, as the case
may be;
(xvi) all
Contracts for the sale or purchase of any real property, or for the
sale or purchase of any tangible personal property;
-17-
(xvii) all
Contracts providing for indemnification to or from any Person and
that was not entered into the Ordinary Course of
Business;
(xviii) all
Contracts for any joint venture, partnership or similar arrangement
by the Company;
(xix) all
collective bargaining agreements or Contracts with any
Union;
(xx) all
Contracts concerning the occupancy, management or operation of any
Leased Real Property (including brokerage contracts);
(xxi) all
Contracts that provide any other Person with “most favored
nation” or similar pricing or contain any special warranty,
rebate arrangement, “take or pay” arrangement,
xxxx-down or discount arrangement, agreement to take back or
exchange goods, consignment arrangement or similar understanding
with a customer or supplier of the Company;
(xxii) all
powers of attorney granted by the Company to any Person for any
purpose whatsoever;
(xxiii) all
Contracts purporting to be binding on any Affiliate of the
Company;
(xxiv) all
Contracts granting any rights of first refusal, rights of first
negotiation or similar rights to any Person; and
(xxv) all
Contracts that involve payments based, in whole or in part, on
profits, revenues, fee income or other financial performance
measures of the Company; and
(xxvi) any
bids, proposals or quotations, which if accepted would constitute a
Material Contract.
(b) Each Material
Contract is valid and binding on the Company in accordance with its
terms and is in full force and effect. None of the Company or any
other party thereto is in breach of or default under (or is alleged
to be in breach of or default under) in any material respect, or
has provided or received any notice of any intention to terminate,
any Material Contract. No party to a Material Contract has
exercised any termination rights with respect thereto or has given
notice of any significant dispute with respect thereto. No event or
circumstance has occurred that, with notice or lapse of time or
both, would constitute an event of default under any Material
Contract or result in a termination thereof or would cause or
permit the acceleration or other changes of any right or obligation
or the loss of any benefit thereunder. Complete and correct copies
of each Material Contract (including all modifications, amendments
and supplements thereto and waivers thereunder) have been made
available to Buyer.
5.10 Real
Property.
(a) The Company does
not own, directly or indirectly, nor has it ever owned, any real
property, nor does the Company hold title to any real
property.
-18-
(b) Section 5.10(b) of the
Disclosure Schedule lists (i) the street address of each
parcel of real property leased or subleased by the Company,
together with all buildings, structures and facilities located
thereon (“Leased
Real Property”); (ii) the landlord under the
lease, the rental amount currently being paid, and the expiration
of the term of such lease or sublease for each leased or subleased
property; and (iii) the current use of such property. The
Company has delivered or made available to Buyer true, complete and
correct copies of any leases, subleases, or other occupancy
agreements, and any amendments, guaranties or addendums thereto,
including all notices exercising renewal, expansion or termination
rights thereunder affecting the Leased Real Property. The Company
is not a sublessor or grantor under any sublease or other
instrument granting to any other Person any right to the
possession, lease, occupancy or enjoyment of any Leased Real
Property. The use and operation of the Leased Real Property in the
conduct of the Business do not violate in any material respect any
Law, covenant, condition, restriction, easement, license, permit or
agreement. To Company’s Knowledge, no material improvements
constituting a part of the Leased Real Property encroach on real
property owned or leased by a Person other than the Company. There
are no Actions pending nor, to the Company’s Knowledge,
threatened against or affecting the Leased Real Property or any
portion thereof or interest therein in the nature or in lieu of
condemnation or eminent domain proceedings.
(c) The Company has
made available to Buyer all title reports, surveys, title policies,
environmental audits or reports, maintenance reports, permits and
appraisals with respect to the Leased Real Property to the extent
any of the foregoing are in the possession of the Company or the
agents under its control.
(d) The Company has not
leased or sublet, as lessor, sub lessor, licensor or the like, any
of the Leased Real Property to any Person. The Leased Real Property
has access, in all material respects, sufficient for the conduct of
Ordinary Course of Business, including to public roads and to all
utilities, (including electricity, internet, sanitary and storm
sewer, potable water, natural gas and other utilities, used in the
operations of the business at that location) and the operation of
the Company at any such site comply with all applicable
Laws.
(e) The Leased Real
Property constitutes all of the real property utilized by the
Company.
(f) The Leased Real
Property is sufficient for the conduct of the Business as currently
conducted in the Ordinary Course of Business. All buildings,
structures and appurtenances comprising part of the Leased Real
Property that are currently being used by the Company are
structurally sound and in satisfactory condition and have been
reasonably maintained, normal wear and tear excepted. Other than as
set forth in the applicable lease, the Company has no obligation to
restore the premises subject to the Leased Real Property to their
condition at the start of the applicable lease or otherwise,
whether on the date hereof or at the termination or expiration of
the lease.
(a) The Company has
good and marketable title to, or a valid and binding leasehold or
license interest in, all of the tangible personal property and
assets used by the Company (the “Personal Property”), free
and clear of all Encumbrances other than Permitted Encumbrances.
The Personal Property, together with all other properties and
assets of the Company, are sufficient for the continued conduct of
the Business after the Closing in substantially the same manner as
conducted prior to the Closing and constitute all of the rights,
property and assets necessary to conduct the Business in such
manner.
-19-
(b) The Personal
Property is structurally sound, in good operating condition and
repair, and adequate for the uses to which it is being put, and
none of the Personal Property is in need of maintenance or repairs
except for ordinary, routine maintenance and repairs that are not
material in nature or cost.
5.12 Intellectual
Property.
(a) As used
herein:
(i)
“Company Intellectual
Property” means all Intellectual Property that is
owned or held for use by the Company.
(ii) “Company IP Agreements”
means all licenses, sublicenses, consent to use agreements,
settlements, coexistence agreements, covenants not to xxx,
permissions and other Contracts (including any right to receive or
obligation to pay royalties or any other consideration), whether
written or oral, relating to Intellectual Property to which the
Company is a party, beneficiary or otherwise bound.
(iii) “Company IP Registrations”
means all Company Intellectual Property that is subject to any
issuance registration, application or other filing by, to or with
any Governmental Authority or authorized private registrar in any
jurisdiction, including registered trademarks, domain names and
copyrights, issued and reissued patents and pending applications
for any of the foregoing.
(iv) “Intellectual Property”
means all intellectual property and industrial property rights and
assets, and all rights, interests and protections that are
associated with, similar to, or required for the exercise of, any
of the foregoing, however arising, pursuant to the Laws of any
jurisdiction throughout the world, whether registered or
unregistered, including any and all: (a) trademarks, service marks,
trade names, brand names, logos, trade dress, design rights and
other similar designations of source, sponsorship, association or
origin, together with the goodwill connected with the use of and
symbolized by, and all registrations, applications and renewals
for, any of the foregoing; (b) internet domain names, whether or
not trademarks, registered in any top-level domain by any
authorized private registrar or Governmental Authority, web
addresses, web pages, websites and related content, accounts with
Twitter, Facebook and other social media companies and the content
found thereon and related thereto, and URLs; (c) works of
authorship, expressions, designs and design registrations, whether
or not copyrightable, including copyrights, author, performer,
moral and neighboring rights, and all registrations, applications
for registration and renewals of such copyrights; (d) inventions,
discoveries, trade secrets, business and technical information and
know-how, databases, data collections and other confidential and
proprietary information and all rights therein; (e) patents
(including all reissues, divisionals, provisionals, continuations
and continuations-in-part, re-examinations, renewals, substitutions
and extensions thereof), patent applications, and other patent
rights and any other Governmental Authority-issued indicia of
invention ownership (including inventor’s certificates, xxxxx
patents and patent utility models); (f) Software; (g) semiconductor
chips and mask works; (h) all other intellectual property rights
throughout the world relating to the foregoing, including the
right, if any, to xxx for all past infringements of the Company
Intellectual Property, both at common law and under the statutes of
the United States or any other country.
-20-
(v)
“Software” means any and
all (a) computer programs, including any and all software
implementations of algorithms, heuristics, models and
methodologies, whether in source code or object code, (b) testing,
validation, verification and quality assurance materials, (c)
databases, conversions, interpreters and compilations, including
any and all data and collections of data, whether machine readable
or otherwise, (d) descriptions, schematics, flow-charts and other
work product used to design, plan, organize and develop any of the
foregoing, (e) all documentation, including user manuals, web
materials and architectural and design specifications and training
materials, relating to any of the foregoing, (f) software
development processes, practices, methods and policies recorded in
permanent form, relating to any of the foregoing, and (g)
performance metrics, sightings, bug and feature lists, build,
release and change control manifests recorded in permanent form,
relating to any of the foregoing.
(b) Section 5.12(b) of the
Disclosure Schedule lists all (i) Company IP Registrations and
(ii) Company Intellectual Property, including Software, that
are not registered but that are material to the Business or
operations. All required filings and fees related to the Company IP
Registrations have been timely filed with and paid to the relevant
Governmental Authorities and authorized registrars, and all Company
IP Registrations are otherwise in good standing. The Company has
provided Buyer with true and complete copies of file histories,
documents, certificates, office actions, correspondence and other
materials related to all Company IP Registrations.
(c) Section 5.12(c) of the
Disclosure Schedule lists all Company IP Agreements. Except for
“off the shelf” software licenses that are available to
the general public, the Company has provided Buyer with true and
complete copies of all such Company IP Agreements, including all
modifications, amendments and supplements thereto and waivers
thereunder. Each Company IP Agreement is valid and binding on the
Company in accordance with its terms and is in full force and
effect. Neither the Company nor any other party thereto is in
breach of or default under (or is alleged to be in breach of or
default under), or has provided or received any notice of breach or
default of or any intention to terminate, any Company IP
Agreement.
(d) The Company is the
sole and exclusive legal and beneficial, and with respect to the
Company IP Registrations, record, owner of all right, title and
interest in and to the Company Intellectual Property, and has the
valid right to use all other Intellectual Property used in or
necessary for the conduct of the Company’s current business
or operations, in each case, free and clear of Encumbrances other
than Permitted Encumbrances.
(e) The consummation of
the transactions contemplated hereunder will not result in the loss
or impairment of or payment of any additional amounts with respect
to, nor require the consent of any other Person in respect of, the
Company’s right to own, use or hold for use any Intellectual
Property as owned, used or held for use in the conduct of the
Company’s business or operations as currently
conducted.
-21-
(f) The Company’s
rights in the Company Intellectual Property are valid, subsisting
and enforceable. The Company has taken all reasonable steps to
maintain the Company Intellectual Property and to protect and
preserve the confidentiality of all trade secrets included in the
Company Intellectual Property, including requiring all Persons
having access thereto to execute written non-disclosure
agreements.
(g) The conduct of the
Business as currently and formerly conducted, and the products,
processes and services of the Company, have not infringed,
misappropriated, diluted or otherwise violated, and do not and will
not infringe, dilute, misappropriate or otherwise violate the
Intellectual Property or other rights of any Person. No Person has
infringed, misappropriated, diluted or otherwise violated, or is
currently infringing, misappropriating, diluting or otherwise
violating, any Company Intellectual Property.
(h) There
are no Actions (including any oppositions, interferences, office
actions, or re-examinations) settled, pending or threatened
(including in the form of offers to obtain a license):
(i) alleging any infringement, misappropriation, dilution or
violation of the Intellectual Property of any Person by the
Company; (ii) challenging the validity, enforceability,
registrability or ownership of any Company Intellectual Property or
the Company’s rights with respect to any Company Intellectual
Property; or (iii) by the Company or any other Person alleging
any infringement, misappropriation, dilution or violation by any
Person of the Company Intellectual Property. The Company is not
subject to any outstanding or prospective Governmental Order
(including any motion or petition therefor) that does or would
restrict or impair the use of any Company Intellectual
Property.
(i) The
computer, information technology and data processing systems,
facilities and services used by the Company, including all
software, hardware, networks, communications facilities, platforms
and related systems and services in the custody or control of the
Company (collectively, “Systems”), are reasonably
sufficient for the existing needs of the Company, including as to
capacity, scalability and ability to process current peak volumes
in a timely manner; the Systems are in good working condition to
effectively perform all computing, information technology and data
processing operations necessary for the operation of the Company;
all Systems (to the extent dedicated to the Company), other than
software that is duly and validly licensed to the Company pursuant
to a valid and enforceable Contract, are owned and operated by, and
or are under the control of, the Company. There has been no
unauthorized access, use, intrusion, or breach of security, or
material failure, breakdown, performance reduction or other adverse
event affecting any Systems that would necessitate that the Company
notify a third person of such unauthorized access or that has
caused or would reasonably be expected to cause any substantial
disruption to the use of such Systems or the Business or
operations, or any material loss or harm to the Company or the
Company’s personnel, property, or other assets. The Company
have implemented all critical security patches provided by third
party licensors for the Systems. The Company have disaster recovery
plans and procedures for its business. The Company maintain
policies and procedures or practices regarding data security and
privacy that are commercially reasonable and in material compliance
with Law. There has been no material security breach relating to,
violation of any security policy regarding, or unauthorized access
or unauthorized use of, the Systems.
-22-
5.13 Accounts
Receivable; Accounts Payable.
(a) The accounts
receivable reflected on the Interim Balance Sheet and the accounts
receivable arising after the date thereof (a) have arisen from
bona fide transactions entered into by the Company involving the
sale of goods or the rendering of services in the Ordinary Course
of Business; (b) constitute only valid, undisputed claims of
the Company not subject to claims of set-off or other defenses or
counterclaims other than normal cash discounts accrued in the
Ordinary Course of Business; and (c) other than Retainage, or
subject to a reserve for bad debts shown on the Interim Balance
Sheet or, with respect to accounts receivable arising after the
Interim Balance Sheet Date, on the accounting records of the
Company, are collectible in full within sixty (60) days after
billing. The reserve for bad debts, if any, shown on the Interim
Balance Sheet or, with respect to accounts receivable arising after
the Interim Balance Sheet Date, on the accounting records of the
Company have been determined in accordance with GAAP, consistently
applied, subject to normal year-end adjustments and the absence of
disclosures normally made in footnotes. No account debtor has
refused or threatened to refuse to pay its obligations for any
reason, no account debtor is insolvent or bankrupt, and no account
receivable is pledged to any third party. Notwithstanding the
foregoing or any other provision of this Agreement, to the extent
that any accounts receivable that existed prior to the Closing Date
deemed to be uncollectable and therefore is deducted from the
Purchase Price through the Net Adjustment Amount or any other
adjustment set forth in this Agreement and subsequently payment is
made to the Company with respect to such accounts receivable, a
payment in an amount equal to the amount collected on such accounts
receivable shall be remitted to the Members within thirty (30) days
of receipt by the Company.
(b) The accounts
payable reflected on the Interim Balance Sheet and arising after
the date thereof have arisen from bona fide transactions entered
into by the Company in the Ordinary Course of Business. The Company
has not written-off, nor reversed, any accounts payable or
liability reserves in a manner inconsistent with prior practice.
The accrued expenses reflected on the Interim Balance Sheet or
accrued after the date thereof have arisen from bona fide
transactions entered into by the Company in the Ordinary Course of
Business
5.14 Customers,
Suppliers and Distributors.
(a) Section 5.14(a) of the
Disclosure Schedule sets forth a list of the twenty five (25)
largest customers (“Material Customers”) of
the Company, as measured by the dollar amount of revenues
recognized by the Company, during the twelve (12) month period
ended December 31, 2020 and the eleven (11) month period ended
November 30, 2021, showing the amount of revenues recognized by the
Company from such customer during each such period. To the
Knowledge of the Company, there are no bankruptcies filed by, on
behalf of, or against any Material Customer. None of the Material
Customers have been in arrears to the Company more than ninety (90)
days in the twelve (12) month period prior to the date of this
Agreement.
(b) Section 5.14(b) of the
Disclosure Schedule sets forth a list of all Contracts with
Material Customers which are the subject of an ongoing competitive
bidding process, or for which the Company has been notified or
informed in writing or, to the Knowledge of the Company, orally,
that it will be the subject of a competitive bidding process within
twelve (12) months after the date of this Agreement.
-23-
(c) Section 5.14(c) of the
Disclosure Schedule sets forth a list of the ten (10) largest
suppliers (“Material
Suppliers”) of the Company, as measured by the dollar
volume of purchases from such suppliers, during the twelve (12)
month period ended December 31, 2020 and the eleven (11) month
period ended November 30, 2021, showing the amount of payments made
by the Company to each such supplier during each such period. To
the Knowledge of the Company, there are no bankruptcies filed by,
on behalf of, or against any Material Supplier. There are no
suppliers of products or services to the Company that are material
to the Business with respect to which practical alternative sources
of supply are not generally available on comparable terms and
conditions in the marketplace.
(d) The Company has not
received notice from any Material Customer or Material Supplier
that such Material Customer or Material Supplier, and to the
Company’s Knowledge, no Material Customer or Material
Supplier, will, intends to, or is considering terminating,
cancelling, discontinuing, reducing, changing the terms (whether
related to payment, price, quantity of business or otherwise) of,
or otherwise adversely modifying, in each case in any material
respect, its business with the Company, whether as a result of any
of the transaction described in this Agreement or otherwise (and
the Company does not have any reasonable basis to believe that any
reasons exist or as a result of the transactions contemplated by
this Agreement or any potential change in management or ownership
of the Company would exist for any Material Customer or Material
Supplier to take any such action). The Company is not currently,
nor has it during the past twelve (12) months been, been involved
in any material claim, dispute or controversy with any Material
Customer or any Material Supplier.
5.15 Insurance. Section 5.15 of the Disclosure
Schedule sets forth a true and complete list of all current
policies or binders of fire, liability, product liability, umbrella
liability, real and personal property, workers’ compensation,
vehicular, directors’ and officers’ liability,
fiduciary liability and other casualty and property insurance
maintained by the Members or any of its Affiliates (including the
Company) and relating to the assets, business, operations,
employees and officers of the Company (collectively, the
“Insurance
Policies”) and true and complete copies of the
Insurance Policies have been made available to Buyer. The Insurance
Policies are in full force and effect and shall remain in full
force and effect following the consummation of the Transactions,
and none of the Insurance Policies re written on a claims made
basis or will otherwise go into run-off at or following the
Closing. The Company has not received any notice of cancellation
of, premium increase with respect to, or alteration of coverage
under, any of the Insurance Policies. All premiums due on the
Insurance Policies have either been paid or, if due and payable
prior to Closing, will be paid prior to Closing in accordance with
the payment terms of each Insurance Policy. The Company does not
have any liability due for any retrospective premium adjustment,
audit premium adjustment, experience based liability or loss
sharing cost adjustment under any of the Insurance Policies. All
the Insurance Policies (a) are valid and binding in accordance
with their terms; (b) are provided by carriers who are
financially solvent; and (c) have not been subject to any
lapse in coverage. There are no claims related to the business of
the Company pending under any the Insurance Policies as to which
coverage has been questioned, denied or disputed or in respect of
which there is an outstanding reservation of rights. The Company is
not in default under, nor has it otherwise failed to comply with,
in any material respect, any provision contained in any the
Insurance Policy. The Insurance Policies are of the type and in the
amounts customarily carried by Persons conducting a business
similar to the Company and are sufficient for compliance with all
applicable Laws and Contracts to which the Company is a party or by
which it is bound.
-24-
5.16 Legal
Proceedings; Governmental Orders.
(a) Section 5.16(a) of the
Disclosure Schedule identifies and provides a summary of the status
and material claims involved in each Action that is currently or
the past five years was pending, or, to the Company’s
Knowledge, threatened against or by the Company affecting any of
its properties or assets. Except as set forth in such Section 5.16(a) of the
Disclosure Schedule, the Company has insurance that will cover all
Losses that may be incurred by the Company in connection with each
such pending Action.
(b) There are no
Actions pending or, to the Company’s Knowledge, threatened
against or by the Company that challenges or seeks to prevent,
enjoin or otherwise delay the Transactions. No event has occurred
or circumstances exist that may give rise to, or serve as a basis
for, any such Action.
(c) There are no, nor
in the past five (5) years have there been any, outstanding
Governmental Orders and no unsatisfied judgments, penalties or
awards against or affecting the Company (or any of its
Representatives with respect to their business activities on behalf
of the Company) or any of its properties or assets. No event has
occurred or circumstances exist that may constitute or result in
(with or without notice or lapse of time) a violation of any such
Governmental Order.
5.17 Compliance
With Laws; Permits.
(a) The Company has
complied in all material respects with all Laws. The Company has
not been charged with and, to the Knowledge of the Company, is not
now under investigation with respect to, a violation of any Law.
The Company has not received any communication during the past five
(5) years from a
Governmental Authority that alleges that the Company is not in
compliance with any Law.
(b) The Company
(i) holds, and is in compliance in all material respects with
the terms of, all Permits that are necessary to enable the Company
to conduct its Business, all of which are listed on Section 5.17(b) of the
Disclosure Schedule, (ii) has not received any notice of the
institution of any Action to revoke any such Permits or alleging
that the Company fails to hold such Permits, (iii) has not
received any notice that any loss or expiration of any Permit is
pending, other than expiration in accordance with the terms
thereof, and (iv) has no Knowledge of any threatened or
reasonably foreseeable loss or expiration of any Permit, other than
expiration in accordance with the terms thereof. The Permits are
valid and in full force and effect and none of the Permits will be
terminated or impaired or become terminable as a result of the
Transactions.
5.18 Environmental
Matters.
(a) As used
herein:
-25-
(i)
“Environmental Claim”
means any Action, Governmental Order, lien, fine, penalty, or, as
to each, any settlement or judgment arising therefrom, by or from
any Person alleging liability of whatever kind or nature (including
liability or responsibility for the costs of enforcement
proceedings, investigations, cleanup, governmental response,
removal or remediation, natural resources damages, property
damages, personal injuries, medical monitoring, penalties,
contribution, indemnification and injunctive relief) arising out
of, based on or resulting from: (a) the presence, Release of, or
exposure to, any Hazardous Materials; or (b) any actual or alleged
non-compliance with any Environmental Law or term or condition of
any Environmental Permit.
(ii) “Environmental Law” means
any applicable Law, and any Governmental Order or binding agreement
with any Governmental Authority: (a) relating to pollution (or the
cleanup thereof) or the protection of natural resources, endangered
or threatened species, human health or safety, or the environment
(including ambient air, soil, surface water or groundwater, or
subsurface strata); or (b) concerning the presence of, exposure to,
or the management, manufacture, use, containment, storage,
recycling, reclamation, reuse, treatment, generation, discharge,
transportation, processing, production, disposal or remediation of
any Hazardous Materials. The term “Environmental Law”
includes, without limitation, the following (including their
implementing regulations and any state analogs): the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as
amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. §§ 9601 et seq.; the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act of 1976, as amended by the Hazardous and Solid Waste Amendments
of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal
Water Pollution Control Act of 1972, as amended by the Clean Water
Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic
Substances Control Act of 1976, as amended, 15 U.S.C.
§§ 2601 et seq.; the Emergency Planning and
Community Right-to-Know Act of 1986, 42 U.S.C.
§§ 11001 et seq.; the Clean Air Act of 1966, as
amended by the Clean Air Act Amendments of 1990, 42 U.S.C.
§§ 7401 et seq.; and the Occupational Safety and
Health Act of 1970, as amended, 29 U.S.C. §§ 651 et
seq.
(iii) “Environmental Notice”
means any written directive, notice of violation or infraction, or
notice respecting any Environmental Claim relating to actual or
alleged non-compliance with any Environmental Law or any term or
condition of any Environmental Permit.
(iv) “Environmental Permit”
means any Permit, letter, clearance, consent, waiver, closure,
exemption, decision or other action required under or issued,
granted, given, authorized by or made pursuant to Environmental
Law.
(v)
“Hazardous Materials”
means all pollutants, contaminants, wastes, hazardous or toxic
substances or materials, including all substances defined as
Hazardous Substances, Oils, Pollutants or Contaminants in the
National Oil and Hazardous Substances Pollution Contingency Plan,
40 C.F.R. § 300.5, toxic mold, asbestos and
asbestos-containing materials, ignitable, reactive or corrosive
substances, by-products, process intermediate products or wastes,
petroleum or petroleum fractions and products, lead-containing
paint, urea-formaldehyde insulation, polychlorinated biphenyls,
radon, chemical liquids or solids, liquid or gaseous products, or
any constituent of any such substance or waste, the use, handling
or disposal of which by the Company could reasonably be expected to
result in liability under any applicable Environmental Law or that
is or is defined as hazardous, toxic or injurious by, or regulated
as such under, any Law or is in any way governed by or subject to
any applicable Environmental Laws.
-26-
(vi) “Release” means any actual
or threatened release, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, abandonment, disposing or allowing to escape or migrate
into or through the environment (including, without limitation,
ambient air (indoor or outdoor), surface water, groundwater, land
surface or subsurface strata or within any building, structure,
facility or fixture).
(b) The
Company is currently and has been in compliance with all
Environmental Laws and has not received from any Person any:
(i) Environmental Notice or Environmental Claim; or
(ii) written request for information pursuant to Environmental
Law, which, in each case, either remains pending or unresolved, or
is the source of ongoing obligations or requirements as of the
Closing Date. The Company has all Environmental Permits required
for the conduct of the Business as presently conducted under
applicable Environmental Laws and is in compliance in all material
respects with all terms and conditions of such Environmental
Permits and all applicable Environmental Laws.
(c) There has been no
Release of Hazardous Materials in contravention of Environmental
Law with respect to the business or assets of the Company or any
real property currently or formerly owned, operated or leased by
the Company, and the Company has not received an Environmental
Notice that any real property currently or formerly owned, operated
or leased in connection with the business of the Company (including
soils, groundwater, surface water, buildings and other structure
located on any such real property) has been contaminated with any
Hazardous Material which could reasonably be expected to result in
an Environmental Claim against, or a violation of Environmental Law
or term of any Environmental Permit by the Company.
(d) The Company has not
retained or assumed, by contract or operation of Law, any
liabilities or obligations of third parties under Environmental
Law.
(e) The Company has
provided or otherwise made available to Buyer: (i) any and all
environmental reports, studies, audits, records, sampling data,
site assessments, risk assessments, economic models and other
similar documents with respect to the business or assets of the
Company or any currently or formerly owned, operated or leased real
property which are in the possession or control of the Company
related to compliance with Environmental Laws, Environmental Claims
or an Environmental Notice or the Release of Hazardous Materials;
and (ii) any and all material documents concerning planned or
anticipated capital expenditures required to reduce, offset, limit
or otherwise control pollution and/or emissions, manage waste or
otherwise ensure compliance with current or future Environmental
Laws (including, without limitation, costs of remediation,
pollution control equipment and operational changes).
5.19 Employee
Benefit Matters.
(a) Section 5.19(a) of the
Disclosure Schedule contains a true and complete list of each
pension, benefit, retirement, compensation, profit-sharing,
deferred compensation, incentive, performance award, phantom
equity, equity or equity-based, change in control, retention,
severance, vacation, paid time off, fringe-benefit and other
similar agreement, plan, policy, program or arrangement (and any
amendments thereto), in each case subject to Section 409A of
the Code and whether or not reduced to writing and whether funded
or unfunded, including each “employee benefit plan”
within the meaning of Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations
promulgated thereunder (“ERISA”), whether or not
tax-qualified and whether or not subject to ERISA, which is or has
been maintained, sponsored, contributed to, or required to be
contributed to by the Company or any other Person that, together
with the Company, would be treated as a single employer within the
meaning of Section 414(b), (c), (m) or (o) of the Code (an
“ERISA
Affiliate”) for the benefit of any current or former
employee, officer, director, retiree, independent contractor or
consultant of the Company or its ERISA Affiliates or any spouse or
dependent of such individual, or under which the Company or any of
its ERISA Affiliates has or may have any Liability, or with respect
to which Buyer or any of its Affiliates would reasonably be
expected to have any Liability, contingent or otherwise (as listed
on Section 5.20(a) of the Disclosure Schedule, each, a
“Benefit
Plan”).
-27-
(b) With respect to
each Benefit Plan, the Company has made available to Buyer
accurate, current and complete copies of each of the following:
(i) where the Benefit Plan has been reduced to writing, the
plan document together with all amendments; (ii) where the
Benefit Plan has not been reduced to writing, a written summary of
all material plan terms; (iii) where applicable, copies of any
trust agreements or other funding arrangements, custodial
agreements, insurance policies and contracts, administration
agreements and similar agreements, and investment management or
investment advisory agreements, now in effect or required in the
future as a result of the Transactions or otherwise;
(iv) copies of any summary plan descriptions, summaries of
material modifications, employee handbooks and any other written
communications (or a description of any oral communications)
relating to any Benefit Plan; (v) in the case of any Benefit
Plan that is intended to be qualified under Section 401(a) of
the Code, a copy of the most recent favorable determination,
opinion or advisory letter from the Internal Revenue Service;
(vi) in the case of any Benefit Plan for which a Form 5500 is
required to be filed, copies of the three most recently filed Forms
5500, with schedules attached; (vii) the financial statements
and/or actuarial valuations and reports related to any Benefit
Plans with respect to the two most recently completed plan years,
and a current estimate of accrued and anticipated liabilities
thereunder; (viii) copies of material notices, letters or
other correspondence with respect to the registration, maintenance
or qualification requirements applicable to a Benefit Plan from any
Governmental Authority, including, without limitation, the Internal
Revenue Service, Department of Labor or Pension Benefit Guaranty
Corporation relating to the Benefit Plan; (ix) copies of
material notices, letters or other correspondence with respect to
any Benefit Plan which have been issued, delivered or otherwise
made available to participants of such Benefit Plan, and
(x) the three most recent, annual nondiscrimination tests for
each Benefit Plan for which such nondiscrimination tests are
required by applicable Law.
(c) Each Benefit
Plan has been established, administered and maintained in
accordance with its terms and in compliance with all applicable
Laws (including ERISA and the Code). Each Benefit Plan that is
intended to be qualified under Section 401(a) of the Code
(a “Qualified Benefit
Plan”) is so qualified and has received a favorable
and current determination letter from the Internal Revenue Service,
or with respect to a prototype plan, can rely on an opinion letter
from the Internal Revenue Service to the prototype plan sponsor, to
the effect that such Qualified Benefit Plan is so qualified and
that the plan and the trust related thereto are exempt from federal
income taxes under Sections 401(a) and 501(a), respectively,
of the Code, and nothing has occurred that could reasonably be
expected to cause the revocation of such determination letter from
the Internal Revenue Service or the unavailability of reliance on
such opinion letter from the Internal Revenue Service, as
applicable, nor has such revocation or unavailability been
threatened. Nothing has occurred with respect to any Benefit Plan
that has subjected or could reasonably be expected to subject the
Company or, with respect to any period on or after the Closing
Date, Buyer or any of its Affiliates, to a penalty under
Section 502 of ERISA or to tax or penalty under
Section 4975 of the Code. All benefits, contributions and
premiums relating to each Benefit Plan have been timely paid in
accordance with the terms of such Benefit Plan and all applicable
Laws and accounting principles, and all benefits accrued under any
unfunded Benefit Plan have been paid, accrued or otherwise
adequately reserved to the extent required by, and in accordance
with, GAAP. The Company has timely filed all requisite governmental
reports (which were true, correct and complete as of the date
filed), including any required audit reports, and has properly and
timely filed, distributed, and delivered or posted all notices,
communications, and reports to employees required to be filed,
distributed, delivered or posted with respect to the Benefit
Plans.
-28-
(d) Except as set forth
in Schedule 5.12(d) of the Disclosure Schedule, neither the Company
nor any of its ERISA Affiliates has ever sponsored, maintained, or
contributed to any (i) Benefit Plan that is or was subject to
Title IV of ERISA or Section 302 of ERISA or Section 412
of the Code; (ii) “multiemployer plan” within the
meaning of Section 3(37) of ERISA; (iii) “multiple
employer plan” within the meaning of Section 413(c) of
the Code; or (iv) “funded welfare plan” within the
meaning of Section 419 of the Code.
(e) Except as set forth
in Schedule 5.12(e) of the Disclosure Schedule, no provision of any
Benefit Plan or collective bargaining agreement could reasonably be
expected to result in any limitation on Buyer or any of its
Affiliates from amending or terminating any Benefit Plan prior to
or after the Closing and without incurring any expenses (including,
but not limited to, loads, surrender fees, termination or deferred
sales charges imposed with respect to insurance products or other
financial products used to fund such Benefit Plans), other than
reasonable administrative expenses in connection with such
termination. Except as set forth in Schedule 5.12(e) of the
Disclosure Schedule, the Company has no commitment or obligation
and has not made any representations to any employee, officer,
director, independent contractor or consultant, whether or not
legally binding, to adopt, amend or modify any Benefit Plan or any
collective bargaining agreement, in connection with the
consummation of the Transactions or otherwise.
(f) No Benefit Plan
provides health benefits (whether or not insured) with respect to
employees or former employees (or any of their beneficiaries) of
the Company or any of its ERISA Affiliates after retirement or
other termination of service (other than coverage or benefits
(i) required to be provided under Part 6 of Subtitle B of
Title I of ERISA or any similar state continuation coverage Laws or
(ii) the full cost of which is borne by the employee or former
employee (or any of their beneficiaries)).
(g) Except as set forth
in Schedule 5.12(g) of the Disclosure Schedule, there is no pending
or, to Company’s Knowledge, threatened Action relating to a
Benefit Plan (other than routine claims for benefits), and no
Benefit Plan has within the three years prior to the date hereof
been the subject of an examination or audit by a Governmental
Authority or the subject of an application or filing under or is a
participant in, an amnesty, voluntary compliance, self-correction
or similar program sponsored by any Governmental
Authority.
-29-
(h) Each Benefit Plan
that is subject to Section 409A of the Code has been
maintained and operated in compliance with such section and all
applicable regulatory guidance (including notices, rulings and
proposed and final regulations), and no amounts deferred under any
such plan is, or upon vesting will be, subject to the interest and
additional Tax set forth under Section 409A(a)(1)(B) of the
Code. Neither the Company nor any of its ERISA Affiliates has any
indemnity or gross-up obligation to any service provider for any
Taxes or penalties imposed under Sections 4999 or 409A of the
Code.
(i) Each individual who
is classified by the Company as an independent contractor has been
properly classified for purposes of participation and benefit
accrual under each Benefit Plan.
(j) Except for the
termination of the Cash Balance Pension Plan required pursuant to
Section 2.3(m),
neither the execution of this Agreement nor any of the Transactions
will (either alone or upon the occurrence of any additional or
subsequent events): (i) entitle any current or former
director, officer, employee, independent contractor or consultant
of the Company or any of its ERISA Affiliates to severance pay or
any other payment; (ii) accelerate the time of payment,
funding or vesting, or increase the amount of compensation due to
any such individual; (iii) limit or restrict the right of the
Company to merge, amend or terminate any Benefit Plan;
(iv) increase the amount payable under or result in any other
material obligation pursuant to any Benefit Plan; or (v) result in
the failure of any Benefit Plan to comply with or be administered
in accordance with its terms or applicable Law (including, without
limitation, ERISA or the Code).
(k) The Company has
taken all actions necessary, including but not limited to the
timely execution, submission, or notice with regard to all
documents required to terminate the Cash Balance Pension Plan no
later than November 1, 2021. The Company has accrued on its
applicable Financial Statements, and in the Estimated Closing
Statement, a sufficient amount of funds to satisfy all accrued
liabilities of the Cash Balance Pension Plan.
5.20 Employment
Matters.
(a) Section 5.20(a) of the
Disclosure Schedule contains a list of all persons who are
employees, independent contractors or consultants of the Company as
of the date hereof (other than subcontractors or consultants
engaged in the Ordinary Course of Business), including any employee
who is on a leave of absence of any nature, paid or unpaid,
authorized or unauthorized, and sets forth for each such individual
the following: (i) name; (ii) title or position
(including whether full or part time); (iii) hire date;
(iv) current annual base compensation rate;
(v) commission, bonus or other incentive-based compensation;
and (vi) a description of the fringe benefits provided to each
such individual as of the date hereof. Except as set forth in
Section 5.20(a) of
the Disclosure Schedule, as of the date hereof, all compensation,
including wages, commissions and bonuses, payable and due to
employees, independent contractors or consultants of the Company
for services performed on or prior to the date hereof have been
paid in full and there are no outstanding agreements,
understandings or commitments of the Company with respect to any
compensation, commissions or bonuses.
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(b) Except as set
forth in Section
5.20(b) of the Disclosure Schedule, the Company is not, nor
has it been, a party to, bound by, or negotiating any collective
bargaining agreement or other Contract with a union, works council
or labor organization (collectively, “Union”),
and there is not, and has not been, any Union representing or
purporting to represent any employee of the Company, and no Union
or group of employees is seeking or has sought to organize
employees for the purpose of collective bargaining. There has never
been, nor has there been any threat of, any strike, slowdown, work
stoppage, lockout, concerted refusal to work overtime or other
similar labor disruption or dispute affecting the Company or any of
its employees.
(c) The Company is and
has been in compliance in all material respects with all applicable
Laws pertaining to employment and employment practices, including
all Laws relating to labor relations, equal employment
opportunities, fair employment practices, employment
discrimination, harassment, retaliation, reasonable accommodation,
disability rights or benefits, immigration, wages, hours, overtime
compensation, child labor, hiring, promotion and termination of
employees, working conditions, meal and break periods, privacy,
health and safety, workers’ compensation, leaves of absence,
unemployment insurance, and data privacy and security. All
individuals characterized and treated by the Company as independent
contractors or consultants are properly treated as independent
contractors under all applicable Laws. All employees classified as
exempt under the Fair Labor Standards Act and state and local wage
and hour laws are properly classified. There are no Actions against
the Company pending, or to the Company’s Knowledge,
threatened to be brought or filed, by or with any Governmental
Authority or arbitrator or arbitration association in connection
with the employment of any current or former applicant, employee,
consultant, or independent contractor of the Company, including,
without limitation, any claim relating to unfair labor practices,
employment discrimination, harassment, retaliation, equal pay, wage
and hours or any other employment related matter arising under
applicable Laws.
(d) The Company has
complied with the federal Worker Adjustment and Retraining
Notification Act of 1988, and similar state, local and foreign laws
related to plant closings, relocations, mass layoffs and employment
losses (the “WARN
Act”) and it has no plans to undertake any action in
the future that would trigger the WARN Act. To the extent that the
WARN Act does apply, the Company shall provide the notices required
by the WARN Act.
(e) To the Knowledge of
the Company, no Key Employee intends to terminate his or her
employment.
5.21 Taxes.
(a) All Tax Returns
required to be filed on or before the Closing Date by the Company
have been, or will be, timely filed. Such Tax Returns are, or when
filed will be, true, complete and correct in all respects. All
Taxes due and owing by the Company (whether or not shown on any Tax
Return) have been, or will be, timely paid by the Company prior to
the Closing. All estimated Taxes required to be paid by or with
respect to the Company have been paid. The Company is not currently
the beneficiary of any extension of time within which to file any
Tax Return.
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(b) The Company has
withheld and paid each Tax required to have been withheld and paid
in connection with amounts paid or owing to any employee,
independent contractor, creditor, customer, Member or other party,
and complied with all information reporting and backup withholding
provisions of applicable Law. Each employee and independent
contractor of the Company has been properly classified by the
Company for purposes of applicable Law.
(c) No claim has been
received by the Company from any taxing authority in any
jurisdiction where the Company does not file Tax Returns that it
is, or may be, subject to Tax by that jurisdiction. Section 5.21(c) of the
Disclosure Schedule sets forth each state, county, local
municipal, domestic or foreign jurisdiction or Governmental
Authority in or with which Company (i) files a Tax Return,
(ii) is registered for any Tax purpose, (iii) treats
itself as liable for any Tax on a “nexus” basis,
(iv) is qualified to do business, (v) owns or regularly
uses property on anything other than a transient basis,
(vi) has any employee or in which any employee is regularly
present, or (vii) has any agent, representative or
distributor.
(d) No extensions or
waivers of statutes of limitations have been given or requested
with respect to any Taxes of the Company.
(e) The amount of the
Company’s Liability for unpaid Taxes for all periods ending
on or before November 30, 2021 does not, in the aggregate, exceed
the amount of accruals for Taxes (excluding reserves for deferred
Taxes) reflected on the Financial Statements (and not in any notes
thereto). The amount of the Company’s Liability for unpaid
Taxes for all periods following the end of the recent period
covered by the Financial Statements shall not, in the aggregate,
exceed the amount of accruals for Taxes (excluding reserves for
deferred Taxes) as adjusted for the passage of time in accordance
with the past custom and practice of the Company (and which
accruals shall not exceed comparable amounts incurred in similar
periods in prior years).
(f) Section 5.21(f) of the
Disclosure Schedule sets forth:
(i) those years for
which examinations by the taxing authorities have been completed;
and
(ii) those
taxable years for which examinations by taxing authorities are
presently being conducted.
(g) All deficiencies
asserted, or assessments made, against the Company as a result of
any examinations by any taxing authority have been fully
paid.
(h) The Company is not
a party to any Action by any taxing authority. There are no pending
or threatened Actions by any taxing authority.
(i) The Company has
delivered or otherwise made available to Buyer copies of all
federal, state, local and foreign income, franchise and similar Tax
Returns, examination reports, and statements of deficiencies
assessed against, or agreed to by, the Company for all Tax periods
ending after December 31, 2015.
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(j) There are no
Encumbrances for Taxes (other than for current Taxes not yet due
and payable) upon the assets of the Company.
(k) The Company is not
a party to, nor bound by, any Tax indemnity, Tax-sharing or Tax
allocation agreement.
(l) The Company is not
a party to, nor bound by, any closing agreement or offer in
compromise with any taxing authority.
(m) No private letter
rulings, technical advice memoranda or similar agreement or rulings
have been requested, entered into or issued by any taxing authority
with respect to the Company.
(n) As of the Closing
Date, the Company will not be a party to or bound by any Tax
sharing agreement, Tax indemnity obligation or similar contract or
practice with respect to Taxes. The Company is not a member of an
affiliated, combined, consolidated or unitary Tax group for Tax
purposes. The Company has no Liability for Taxes of any Person
(other than the Company) under Treasury Regulations
Section 1.1502-6 (or any corresponding provision of state,
local or foreign Law), as transferee or successor, by contract or
otherwise.
(o) The Company has not
agreed to make, nor is it required to make, any adjustment under
Sections 481(a) or 263A of the Code or any comparable
provision of state, local or foreign Tax Laws by reason of a change
in accounting method, as a result of the Transactions or otherwise.
The Company has not taken any action that could defer a Liability
for Taxes of the Company from any Pre-Closing Tax Period to any
Post-Closing Tax Period.
(p) The Company has not
been, nor will it be required hereunder to include any adjustment
in taxable income for any Tax period (or portion thereof) pursuant
to Section 481 of the Code or any comparable provision under
state or foreign Tax laws as a result of accounting methods
employed prior to the Closing, nor is any application pending with
a Governmental Authority requesting permission for any changes in
accounting methods that relate to the Companies. The Company will
not be required hereunder to include in income, or exclude any item
of deduction from, taxable income for any taxable period (or
portion thereof) ending after the Closing Date as a result of any
(i) “closing agreement” as described in Code
section 7121 (or any corresponding or similar provision of state,
local or foreign income Tax law), (ii) open transaction or
installment disposition made on or prior to the Closing Date,
(iii) intercompany transactions occurring at or prior to the
Closing or any excess loss account in existence at Closing
described in Treasury Regulations under Code section 1502 (or any
corresponding or similar provision of state, local or foreign
income Tax law), (iv) cash basis method of accounting or percentage
of completion method of accounting, (v) income from the
discharge of indebtedness that was deferred pursuant to the
provisions of Code section 108(i), or (vi) prepaid amount
received on or prior to the Closing Date.
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(q) The Company is not,
nor has it ever been, a “United States real property holding
corporation” (as defined in Section 897(c)(2) of the
Code) during the applicable period specified in
Section 897(c)(1)(a) of the Code.
(r) The Company has
never been a “distributing corporation” or a
“controlled corporation” in connection with a
distribution described in Section 355 of the Code (including
any distribution that could otherwise constitute part of a
“plan” or “series of related transactions”
within the meaning of section 355(e) of the Code in conjunction
with the Transactions). The Company has not distributed stock of
another Person, or has had its equity distributed by another
Person, in a transaction that was purported or intended to be
governed in whole or in part by Section 361 of the
Code
(s) The Company has not
consummated or participated in, nor is it currently participating
in, any transaction which was or is a “tax shelter”
transaction as defined in Sections 6662 or 6111 of the Code or
the Treasury Regulations promulgated thereunder. The Company has
not participated in, nor is it currently participating in, a
“Listed Transaction” or a “Reportable
Transaction” within the meaning of Section 6707A(c) of
the Code or Treasury Regulations Section 1.6011-4(b), or any
transaction requiring disclosure under a corresponding or similar
provision of state, local, or foreign law.
(t) There is currently
no limitation on the utilization of net operating losses, capital
losses, built-in losses, tax credits or similar items of the
Company under Sections 269, 382, 383, 384 or 1502 of the Code
and the Treasury Regulations thereunder (and comparable provisions
of state, local or foreign Law).
(u) Section 5.21(u) of the
Disclosure Schedule sets forth all foreign jurisdictions in
which the Company is subject to Tax, is engaged in business or has
a permanent establishment. The Company has not entered into a gain
recognition agreement pursuant to Treasury Regulations
Section 1.367(a)-8. The Company has not transferred an
intangible the transfer of which would be subject to the rules of
Section 367(d) of the Code.
(v) None of the assets
of the Company is property that the Company is required to treat as
being owned by any other person pursuant to the so-called
“safe harbor lease” provisions of former
Section 168(f)(8) of the Internal Revenue Code of 1954, as
amended.
(w) The Company is
classified, and has at all times since the date of its formation
been classified, as a limited liability company taxable as a
partnership for United States federal, state and local income tax
purposes.
5.22 Export
Control Matters.
Reserved.
5.23 Import
Compliance.
Reserved.
5.24 Certain
Payments. The Company in
material compliance with all applicable foreign, federal, state and
local anti-bribery, anticorruption and anti-money laundering Laws,
including the U.S. Foreign Corrupt Practices Act, as amended. None
of the Company nor any Representative thereof or any other Person
authorized to act for or on behalf of the Company, has directly or
indirectly, (a) made any contribution, gift, bribe, rebate, payoff,
influence payment, kickback or other payment to any Person, public
or private, regardless of form, whether in money, property or
services (i) to obtain favorable treatment in securing business;
(ii) to pay for favorable treatment of business secured; (iii) to
obtain special concessions or for special concessions already
obtained; or (iv) in violation of any Law, or (b) established or
maintained any fund or asset that has not been recorded in the
books and records of the Company.
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5.25 Warranty
Obligations. The Company has
delivered or otherwise made available to Buyer true and correct
copies of all written warranties currently in effect covering the
products and services of the Company. The Company has not, in any
of past three (3) years, had Liabilities under express and implied
warranties in excess of $25,000.00 in the aggregate, and the
Company will not have Liabilities under express and implied
warranties with respect to any products (including any part or
component and regardless of the date of manufacture) designed,
manufactured, assembled, sold or distributed by the Company or any
services performed by the Company prior to the Closing Date in
excess of $25,000.00.
5.26 Data
Privacy and Security.
Reserved.
5.27 Transactions
with Related Persons. Except as set
forth in Section
5.27 of the Disclosure Schedule (the items so disclosed, the
“Related Party
Transactions and Relationships”), neither the Members
nor any Affiliates thereof, nor any of their respective
Representatives:
(a) owns any direct or
indirect interest of any kind in, or controls or has controlled, or
is a manager, officer, director, shareholder, member or partner of,
or consultant to, or lender to or borrower from or has the right to
participate in the profits of, any Person which is a competitor,
supplier, vendor, customer, landlord, tenant, creditor or debtor of
the Company;
(b) owns or has an
interest in, directly or indirectly, any property, asset or right
used by the Company;
(c) owes any money to
or is owed any money by the Company (other than accrued
compensation in the case of employees of the Company);
(d) provides goods or
services to the Company (other than the employees of the
Company);
(e) is a party to a
Contract, or is involved in any business arrangement or other
relationship, with the Company (whether written or
oral);
(f) has pledged any
assets, posted any letters of credit or guaranteed any obligations
on behalf of the Company (nor has the Company pledged any assets,
posted any letters of credit or guaranteed any obligations on
behalf of any such Person); or
(g) has any claim or
cause of action against the Company.
5.28 Brokers.
Except as set forth in Section 5.28 of the Disclosure
Schedule, no broker, finder or investment banker is entitled to any
brokerage, finder’s or other fee or commission in connection
with the Transactions or any other transactions, whether past,
present or future, based upon arrangements made by or on behalf of
the Company or any Member.
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5.29 Projections.
All cost estimates, forecasts, projections and other forward
looking information regarding the Company that have been provided
to Buyer or its representatives, were prepared in good faith based
upon assumptions believed to be reasonable at the time, it being
recognized by Buyer that such information as it relates to future
events is not to be viewed as fact and that actual results during
the period or periods covered by such financial information may
differ from the projected results set forth therein by a material
amount.
5.30
PPP Loans. On
February 2, 2021 the Company obtained a PPP Loan from the PPP
Lender in an amount equal to Two Million Dollars ($2,000,000.00).
The PPP Loan was obtained and proceeds of the PPP Loan were used,
and any related contracts and agreements were entered into and
performed, in accordance with all applicable Laws and the
Guidelines and the specific terms of the PPP Loan. All of the
proceeds of the PPP Loan were used for the purposes and within the
timeframes proscribed by the terms of the PPP Loan and applicable
Law to qualify the entire PPP Loan for forgiveness. The Company
need not give any notice to, make any filing with, or obtain any
authorization, consent or approval of any individual, entity or
Governmental Authority with respect to the PPP Loan that will not
have already been obtained as of the Closing Date in order to
consummate the transactions contemplated by this Agreement,
including without limitation, any consents from the SBA or the PPP
Lender required by applicable Law and the Guidelines or the terms
of the PPP Loan. The Company or the Company, as applicable, has
completed and submitted the forgiveness application for the PPP
Loan to the PPP Lender.
ARTICLE 6
Representations
and warranties of buyer
Buyer
hereby represents and warrants to the Company and the Members that
the statements contained in this Article 6 are true and correct
on the date hereof and shall be true and correct on the Closing
Date as if made thereon.
6.1 Organization
and Authority of Buyer. Buyer is a
corporation duly organized, validly existing and in good standing
under the Laws of the State of Delaware. Buyer has full corporate
power and authority to enter into this Agreement and the other
Transaction Documents to which Buyer is a party, to carry out its
obligations hereunder and thereunder and to consummate the
Transactions. The execution and delivery by Buyer of this Agreement
and any other Transaction Document to which Buyer is a party, the
performance by Buyer of its obligations hereunder and thereunder
and the consummation by Buyer of the Transactions have been duly
authorized by all requisite corporate action on the part of Buyer.
This Agreement has been duly executed and delivered by Buyer, and
(assuming due authorization, execution and delivery by the Members
and the Company) this Agreement constitutes a legal, valid and
binding obligation of Buyer enforceable against Buyer in accordance
with its terms. When each other Transaction Document to which Buyer
is or will be a party has been duly executed and delivered by Buyer
(assuming due authorization, execution and delivery by each other
party thereto), such Transaction Document will constitute a legal
and binding obligation of Buyer enforceable against it in
accordance with its terms.
6.2 No
Conflicts; Consents. The execution and
delivery by Buyer of this Agreement and each Transaction Document,
and the performance by it of any actions contemplated hereunder or
thereunder, does not and will not, directly or indirectly (with or
without notice or lapse of time) (a) conflict with or
violate any provision of the Governing Documents of Buyer or
(b) conflict with, violate, result in a breach of, result in
the acceleration of material obligations, loss of a benefit or
increase in Liabilities or fees under, create in any Person the
right to terminate, cancel or modify, or cause a default under or
give rise to any rights or penalties under any provision of any
Governmental Order to which Buyer is subject or any provision of
any Contract to which Buyer is a party.
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6.3 Investment
Purpose. Buyer will
acquire the Units solely for its own account for investment
purposes and not with a view to, or for offer or sale in connection
with, any distribution thereof.
6.4 Legal
Proceedings. There are no
Actions pending or, to Buyer’s knowledge, threatened against
or by Buyer or any Affiliate of Buyer that challenge or seek to
prevent, enjoin or otherwise delay the Transactions.
6.5 Brokers.
Except for such amounts as Buyer shall pay, no broker, finder or
investment banker is entitled to any brokerage, finder’s or
other fee or commission in connection with the Transactions or any
other Transaction Document based upon arrangements made by or on
behalf of Buyer.
ARTICLE 7
Covenants
7.1 Conduct
of Business Prior to the Closing. From the date
hereof until the Closing, except as otherwise provided in this
Agreement or consented to in writing by Buyer (which consent shall
not be unreasonably withheld or delayed), the Company shall
(a) conduct the business of the Company in the Ordinary Course
of Business; and (b) use its reasonable best efforts to
maintain and preserve intact the current organization, business and
franchise of the Company and to preserve the rights, franchises,
goodwill and relationships of its employees, customers, lenders,
suppliers, regulators and others having business relationships with
the Company. Without limiting the foregoing, from the date hereof
until the Closing Date, the Company shall:
(a) preserve and
maintain all of its Permits;
(b) pay its debts,
Taxes and other obligations when due;
(c) not accelerate any
receivables or delay paying any payables;
(d) not cancel or waive
rights of material value;
(e) maintain the
properties and assets owned, operated or used by it in the same
condition as they were on the date of this Agreement, subject to
reasonable wear and tear;
(f) continue in full
force and effect without modification all Insurance Policies,
except as required by applicable Law;
(g) defend and protect
its properties and assets from infringement or
usurpation;
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(h) perform all of its
obligations under all Contracts relating to or affecting its
properties, assets or business;
(i) maintain its books
and records in accordance with past practice;
(j) comply in all
material respects with all applicable Laws; and
(k) not take or permit
any action that would cause any of the changes, events or
conditions described in Section 5.8 to
occur.
Notwithstanding
anything in this Section
7.1 to the contrary, the Company may distribute cash to the
Members to the extent that, after giving effect to such
distribution, the amount obtained by subtracting the Estimated
Closing Company Transaction Expenses from the Estimated Closing
Company Net Cash exceeds the Target Company Net Cash. Without in
any way limiting any party’s rights or obligations under this
Agreement, the parties understand and agree that (i) nothing
contained in this Agreement shall give Buyer, directly or
indirectly, the right to control or direct the business operations
of the Company prior to the Closing and (ii) prior to the Closing,
the Company shall exercise, consistent with the terms and
conditions of this Agreement, complete control and supervision over
the operations of the Business.
7.2 Access to Information. From the
date hereof for a period of no less than sixty (60) days, the
Company shall (a) afford Buyer and its Representatives full and
free access to and the right to inspect all of the properties,
assets, premises, books and records, Contracts and other documents
and data related to the Company; (b) furnish Buyer and its
Representatives with such financial, operating and other data and
information related to the Company as Buyer or any of its
Representatives may reasonably request (including for Buyer to make
a determination as to whether the conditions to Closing have been
satisfied); and (c) instruct the Representatives of the Company to
cooperate with Buyer in its investigation of the Company. Any
investigation pursuant to this Section 7.2 shall be conducted
in such manner as not to interfere unreasonably with the conduct of
the Business. No investigation by Buyer or other information
received by Buyer shall operate as a waiver or otherwise affect any
representation, warranty or agreement given or made by the Company
or the Members in this Agreement.
7.3 No
Solicitation of Other Bids.
(a) From the date
hereof for a period of no less than sixty (60) days, the Company
and each Member shall not, and shall not authorize or permit any of
its Affiliates or any of its or their Representatives to, directly
or indirectly, (i) encourage, solicit, initiate, facilitate or
continue inquiries regarding an Acquisition Proposal;
(ii) enter into discussions or negotiations with, or provide
any information to, any Person concerning a possible Acquisition
Proposal; or (iii) enter into any agreements or other
instruments (whether or not binding) regarding an Acquisition
Proposal. The Company and each Member shall immediately cease and
cause to be terminated, and shall cause its Affiliates and all of
its and their Representatives to immediately cease and cause to be
terminated, all existing discussions or negotiations with any
Persons conducted heretofore with respect to, or that could lead
to, an Acquisition Proposal. For purposes hereof,
“Acquisition
Proposal” shall mean any inquiry, proposal or offer
from any Person (other than Buyer or any of its Affiliates)
concerning (A) a merger, consolidation, liquidation,
recapitalization, share exchange or other business combination
transaction involving the Company; (B) the issuance or
acquisition of Units or other equity securities of the Company; or
(C) the sale, lease, exchange or other disposition of any
significant portion of the Company’s properties or
assets.
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(b) In addition to the
other obligations under this Section 7.3, the Company and
Members shall promptly (and in any event within three (3) Business
Days after receipt thereof by the Company, its Affiliates, any
Member or their Representatives) advise Buyer orally and in writing
of any Acquisition Proposal, or any request for information with
respect to any Acquisition Proposal, the material terms and
conditions of such request, Acquisition Proposal or request, and
the identity of the Person making the same, provided that such
Acquisition Proposal is or is reasonably expected to be for an
amount equal to or greater than the Purchase Price.
(c) The Company and
each Member agrees that the rights and remedies for noncompliance
with this Section
7.3 shall include having such provision specifically
enforced by any court having equity jurisdiction, it being
acknowledged and agreed that any such breach or threatened breach
shall cause irreparable injury to Buyer and that money damages
would not provide an adequate remedy to Buyer.
7.4 Notice
of Certain Events.
(a) From the date
hereof until the Closing, the Company shall promptly notify Buyer
in writing of:
(i) any fact,
circumstance, event or action the existence, occurrence or taking
of which (A) has had, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect,
(B) has resulted in, or could reasonably be expected to result
in, any representation or warranty made by the Company or the
Members hereunder not being true and correct or (C) has
resulted in, or could reasonably be expected to result in, the
failure of any of the conditions set forth in Section 9.2 to be
satisfied;
(ii) any
notice or other communication from any Person alleging that the
consent of such Person is or may be required in connection with the
Transactions;
(iii) any
notice or other communication from any Governmental Authority in
connection with the Transactions; and
(iv) any
Actions commenced or, to Company’s Knowledge, threatened
against, relating to or involving or otherwise affecting the
Company that, if pending on the date of this Agreement, would have
been required to have been disclosed pursuant to Section 5.18 or that relates to
the consummation of the Transactions.
(b) Buyer’s
receipt of information pursuant to this Section 7.4 shall not operate
as a waiver or otherwise affect Buyer’s right to terminate
this Agreement pursuant to Section 11.1(b).
7.5 Confidentiality.
From and after the Closing, each party shall, and shall cause their
respective Affiliates to, hold, and shall use their reasonable best
efforts to cause their respective Representatives to hold, in
confidence any and all information, whether written or oral,
concerning the Company (“Confidential
Information”), except to the extent that such party
can show that such information (a) is generally available to
and known by the public through no fault of the party, any of his,
her or its Affiliates or his, her or its respective
Representatives; or (b) is lawfully acquired by such party,
any of his, her or its Affiliates or his, her or its respective
Representatives from and after the Closing from sources which are
not prohibited from disclosing such information by a legal,
contractual or fiduciary obligation. If any party or any of his,
her or its Affiliates or their respective Representatives are
compelled to disclose any information by judicial or administrative
process or by other requirements of Law, such party shall promptly
notify the others in writing and shall disclose only that portion
of such information which such party is advised by its counsel in
writing is legally required to be disclosed, provided that such party shall use
reasonable best efforts to obtain an appropriate protective order
or other reasonable assurance that confidential treatment will be
accorded such information.
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7.6 Non-competition;
Non-solicitation.
(a) For a period of
four (4) years following the Closing (and in the case of
Section 7.6(a)(v)
indefinitely), or during the Members’ term of employment with
the Company, whichever is greater, each Member agrees that he or
she shall not, directly or indirectly through any Person or any
Affiliate thereof, entity or contractual arrangement:
(i) engage in the
Business or any segment thereof anywhere in the United States of
America (the “Restricted
Territory”);
(ii) acquire,
own, manage, operate, join, control, or participate in the
ownership, management, operation or control of, consult with or
perform services for, lend money or capital to, invest capital in,
or be connected in any manner with, including, without limitation,
as a partner or through stock or equity ownership in, any business
or Person that engages in the Business or any segment thereof
anywhere in the Restricted Territory;
(iii) solicit,
offer employment to or hire any individual that is an employee or
consultant of the Company or otherwise induce or attempt to induce
(whether for their own account or for the account of any other
Person) any individual that is an employee or consultant of the
Company to leave the employ of the Company; provided, however, that nothing in this
Section 7.6(a)(ii)
shall prohibit any such party from: (i) using general solicitations
(including through search firms) not targeted at employees of the
Company, or employing any person who responds to such solicitation;
(ii) hiring, employing or discussing employment with any person who
contacts such party independently without any solicitations by such
party or (iii) soliciting any person who has left the employment of
the Company at least twelve (12) months prior to such party
soliciting such person;
(iv) induce
or attempt to induce any customer, supplier, licensee or other
business relation of the Company to cease doing business with the
Company or in any way interfere with the relationship between any
such customer, supplier, licensee or business relation and the
Company; or
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(v) disparage Buyer or
any of its Affiliates (including, after the Closing, the Company)
in any way that could adversely affect the goodwill, reputation or
business relationships of Buyer or any of its Affiliates with the
public generally, or with any of their customers, suppliers or
employees.
(b) Each Member
acknowledges that if it breaches any obligation under this
Section 7.6, Buyer
will suffer immediate and irreparable harm and damage for which
money alone cannot fully compensate, and each Member therefore
agrees that upon such breach or threatened breach, Buyer shall be
entitled to seek a temporary restraining order, preliminary
injunction, permanent injunction or other injunctive relief,
without posting any bond or other security, barring the other party
from violating any such provision. This Section 7.6(b) shall not be
construed as an election of any remedy, or as a waiver of any right
available to Buyer under this Agreement or the Law, including the
right to seek damages for a breach.
(c) If a court of
competent jurisdiction determines that the character, duration or
geographical scope of the provisions of this Section 7.6 are unreasonable,
it is the intention and the agreement of the parties that these
provisions shall be construed by the court in such a manner as to
impose only those restrictions on any Member’s conduct that
are reasonable in light of the circumstances and as are necessary
to assure to Buyer the benefits of this Agreement. If, in any
judicial proceeding, a court shall refuse to enforce all of the
separate covenants of this Section 7.6 because taken
together they are more extensive than necessary to assure to Buyer
the intended benefits of this Agreement, it is expressly understood
and agreed by the parties that the provisions hereof that, if
eliminated, would permit the remaining separate provisions to be
enforced in such proceeding, shall be deemed eliminated, for the
purposes of such proceeding, from this Agreement.
7.7 Approvals
and Consents
.
(a) From the date
hereof until the Closings, the Company and the Members shall (i)
use best efforts to file, make or obtain, as applicable, all
registrations, filings, applications, notices, consents, approvals,
orders, qualifications and waivers listed on Section 9.2(c) of the
Disclosure Schedule and (ii) shall make any payments required to
accomplish the foregoing (and to the extent such payments are not
made prior to the Closings, they shall be Company Transaction
Expenses).
(b) Each of the parties
shall use all best efforts to:
(i) respond to any
inquiries by any Governmental Authority regarding antitrust or
other matters with respect to the Transactions or any agreement or
document contemplated hereby;
(ii) avoid
the imposition of any order or the taking of any action that would
restrain, alter or enjoin the Transactions or any agreement or
document contemplated hereby; and
(iii) in
the event any Governmental Order adversely affecting the ability of
the parties to consummate the Transactions or any agreement or
document contemplated hereby has been issued, to have such
Governmental Order vacated or lifted.
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(c) If any consent,
approval or authorization listed on Section 9.2(c) of the
Disclosure Schedule is not obtained prior to the Closing, the
Members shall, at their sole expense, subsequent to the Closing,
cooperate with Buyer and the Company in attempting to obtain such
consent, approval or authorization as promptly thereafter as
practicable. If such consent, approval or authorization cannot be
obtained, the Members shall use their best efforts to provide the
Company with the rights and benefits of the affected Contract for
the term thereof, and, if the Members provide such rights and
benefits, the Company shall assume all obligations and burdens
thereunder.
(d) All analyses,
appearances, meetings, discussions, presentations, memoranda,
briefs, filings, arguments, and proposals made by or on behalf of a
party before any Governmental Authority or the staff or regulators
of any Governmental Authority, in connection with the Transactions
(but, for the avoidance of doubt, not including any interactions
between or the Company with Governmental Authorities in the
Ordinary Course of Business, any disclosure which is not permitted
by Law or any disclosure containing confidential information) shall
be disclosed to the other party in advance of any filing,
submission or attendance, it being the intent that the parties will
consult and cooperate with one another, and consider in good faith
the views of one another, in connection with any such analyses,
appearances, meetings, discussions, presentations, memoranda,
briefs, filings, arguments, and proposals. Each party shall give
notice to the other party with respect to any meeting, discussion,
appearance or contact with any Governmental Authority or the staff
or regulators of any Governmental Authority, with such notice being
sufficient to provide the other party with the opportunity to
attend and participate in such meeting, discussion, appearance or
contact.
(e) Notwithstanding the
foregoing, nothing in this Section 7.7 shall require, or
be construed to require, Buyer or any of its Affiliates to agree to
(i) sell, hold, divest, discontinue or limit, before or after
the Closing Date, any assets, businesses or interests of Buyer, the
Company or any of their respective Affiliates, (ii) any
conditions relating to, or changes or restrictions in, the
operations of any such assets, businesses or interests which, in
either case, could reasonably be expected to result in a Material
Adverse Effect or materially and adversely impact the economic or
business benefits to Buyer of the Transactions, (iii) any
material modification or waiver of the terms and conditions of this
Agreement, or (iv) threaten to, commence, prosecute or defend
any Action.
(f) As of the Closing,
the Members hereby waive all rights of first refusal, co-sale
rights, drag-along rights, consent rights and other similar rights
that the Members may have, as well as any restrictions on the
transfer of the Units, in each case under the Company’s
Governing Documents or otherwise with respect to the transactions
contemplated hereby.
7.8 Release.
(a) Each Member, on
behalf of himself or herself and his or her Affiliates, and their
respective successors and assigns and Representatives
(collectively, the “Releasors”), hereby
knowingly and voluntarily releases and forever discharges,
effective as of the Closing Date, Buyer, the Company, and each of
their respective past, present and/or future Affiliates and
Representatives (collectively, the “Released Parties”), from
any and all Actions, claims, suits, controversies, causes of
action, cross-claims, counter claims, demands, debts, compensatory
damages, liquidated damages, punitive or exemplary damages, other
damages, claims for costs and attorneys’ fees, or liabilities
of any nature whatsoever in law and in equity, whether known or
unknown, liquidated or contingent, which such Member or any other
Releasor ever had, now have or may have relating to, arising out of
or in any way connected with the dealings of the Company and the
other Released Parties, on the one hand, and the Members and the
other Releasors, on the other hand, or any circumstance, agreement,
action, omission, event or matter occurring or existing between
them, in each case, prior to the Closing Date (collectively, the
“Released
Claims”); provided, however, that the Released
Claims shall not include (i) any of the terms, conditions or other
provisions or obligations under this Agreement or the Transaction
Documents, or (ii) claims for indemnification against the Company
whether arising prior to or after the Closing for third party
claims against a Member arising by reason of such Member being a
member, officer or employee of the Company provided such Member
acted in good faith and such third party claim is one for which the
Company typically provides indemnification in the Ordinary Course
of its Business, provided that such claims be covered by insurance
maintained in the Ordinary Course of Business.
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(b) The Members
acknowledges that the Laws of many states provide substantially the
following:
“A GENERAL
RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW
OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
The
Members acknowledge that such provisions are designed to protect a
party from waiving claims which he does not know exist or may
exist. Nonetheless, the Members agree that, effective as of the
Closing Date, the Members and the other Releasors shall be deemed
to waive any such provision.
(c) The Members further
agrees that no party shall, nor permit any Affiliate thereof to:
(i) institute a lawsuit or other legal proceeding based upon,
arising out of, or relating to any of the Released Claims, (ii)
participate, assist, or cooperate in any such proceeding or (iii)
encourage, assist and/or solicit any third party to institute any
such proceeding.
7.9 Closing
Conditions. From the date
hereof until the Closing, each of the parties shall use
commercially reasonable efforts to take such actions as are
necessary to expeditiously satisfy the closing conditions set forth
in Article
9.
7.10 Publicity;
Transaction Disclosure.
(a) Any public
announcement, press release or similar publicity with respect to
this Agreement or the Transactions will be issued, if at all, at
such time and in such manner as approved in writing by the other
party (such approval not to be unreasonably withheld, conditioned
or delayed); provided, that if such
announcement is required by Law, a party may make any such
announcement, release or similar publicity without the consent of
the other party, provided that the disclosing party shall use
commercially reasonable efforts to provide, to the extent
practicable and legally permitted, the other party a reasonable
opportunity to review and comment on the content of such
announcements in advance (it being understood that the other party
shall not have any right to prevent the disclosing party from
making such announcements).
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(b) None of (i) the
Company, the Members or any of their respective Affiliates or any
of their respective Representatives shall (except with the prior
written consent of Buyer or as permitted by this Agreement) and
(ii) Buyer or any of its Affiliates or Representative shall (except
with the prior written consent of the Members or as permitted by
this Agreement) disclose to any Person: (A) the fact that any
confidential information of the Company has been disclosed to Buyer
or its Representatives, or that any confidential information of
Buyer has been disclosed to the Company or the Members or
(B) any information about the transactions contemplated
hereby, including the status of such discussions or negotiations,
the execution of any documents (including this Agreement) or any of
the terms of the transactions contemplated hereby or the related
documents (including this Agreement); provided that the foregoing
obligation of the Company, the Members or Buyer (or any of their
respective Affiliates or Representatives) shall not prohibit
disclosure of any such information (1) if required by applicable
Law; (2) as required in order to fulfill such party’s
obligations under this Agreement; (3) to a financial, legal or
accounting advisor for the purpose of advising in connection with
the transactions contemplated by this Agreement and the other
Transaction Documents (provided, that such advisor is made aware of
and directed to comply with the provisions of this Section 7.10), (4) to the
extent that the information has been made public by, or with the
prior consent of, Buyer (with respect to disclosures by the
Company, the Members or their respective Affiliates or
Representatives) or the Members (with respect to disclosures by
Buyer or its Affiliates or Representatives) or (5) in connection
with any Action with respect to this Agreement or any other
Transaction Documents; and provided, further, that in the event any
of the Company, the Members or Buyer is required by Law to disclose
any such information, such Person shall promptly notify Buyer (with
respect to disclosures by the Company or the Members) or the
Members (with respect to disclosures by Buyer) in writing to the
extent permitted by Law, which notification shall include the
nature of the legal requirement and the extent of the required
disclosure, and such Person shall reasonably cooperate with Buyer
or the Members, as applicable (at such Person’s expense) to
preserve the confidentiality of such information consistent with
applicable Law.
7.11 Benefit
Plans. Effective as of the day immediately
preceding the Closing Date, the Company shall terminate or cause to
be terminated each Benefit Plan of the Company designated on
Section 7.11 of the
Disclosure Schedule, unless Buyer provides written notice to the
Company that such Benefit Plans shall not be
terminated.
7.12 Litigation
Support. Following the
Closing, in the event and for so long as Buyer or the Company are
actively contesting or defending against any Action in connection
with any fact, situation, circumstance, action, failure to act, or
transaction on or prior to the Closing Date involving the Company,
the Members will cooperate with it and its counsel in the contest
or defense and provide such testimony and access to the
Members’ books and records as shall be necessary in
connection with the contest or defense, all at the sole cost and
expense of Buyer and the Company (unless Buyer is entitled to
indemnification therefor hereunder).
7.13 Customer
and other Business Relationships. After the
Closing, the Members shall cooperate with Buyer in its efforts to
continue and maintain for the benefit of Buyer those business
relationships of the Company existing prior to the Closing,
including relationships with customers, suppliers, employees,
regulatory authorities, licensors. After the Closing, the Members
will, and will cause their Affiliates to, refer to Buyer all
inquiries relating to the Company.
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7.14 Insurance;
Risk of Loss. The Members will,
and will cause each of their Affiliates (including the Company) to,
keep insurance policies currently maintained in respect of the
Business and current or former employees of the Company, as the
case may be, or suitable replacements therefor, in full force and
effect through the close of business on the Closing Date including.
each of the insurance policies set forth in Section 7.14 of the Disclosure
Schedule (the “Specified Policies”)
After the Closing Date, the Company may seek coverage for any claim
that may be asserted against the Company after the Closing Date
arising out of events, incidents, conduct or circumstances that
occurred and/or existed prior to the Closing Date (such claims,
“Post-Closing
Claims”) from the applicable insurer under any
Specified Policy or, where applicable, any renewal policy or
equivalent of such Specified Policy, and the Members shall
cooperate with the Company in connection with the tendering of such
claims (including by providing access to employees and third party
claims adjustors); provided, however, that (i) the Company
shall reimburse the Members for all of its out-of-pocket costs and
expenses in connection with such cooperation; and (ii) the Company
shall notify the Members of all such coverage claims made. The
Members shall not release, commute, buy-back, or otherwise
eliminate the coverage available under any Specified Policy without
first providing written notice to the Company.
7.15 Internal
Control over Financial Reporting.
Reserved.
7.16 Financial
Reporting Cooperation. During the period
between the signing of this Agreement and the earlier of the
Closing or termination of this Agreement, the Company shall provide
such reasonable and customary cooperation (and to use commercially
reasonable efforts to cause its and their respective managers,
officers, directors, employees, accountants, legal counsel, agents,
other advisors and authorized representatives to provide such
reasonable and customary cooperation) in connection with
Buyer’s and its Affiliates’ reporting obligations under
the Securities Act and the Exchange Act.
7.17 Company
Covenants. The Members shall
cause the Company to comply with each of its covenants and
agreements set forth herein.
7.18 Further
Assurances. Each of the
parties shall, and shall cause their respective Affiliates to,
execute and deliver such additional documents, instruments,
conveyances and assurances and take such further actions as may be
reasonably required to carry out the provisions hereof and give
effect to the Transactions.
ARTICLE 8
Tax
matters
8.1 Tax
Covenants.
(a) Without the
prior written consent of Buyer, the Members (and, prior to the
Closing, the Company, their respective Affiliates and their
respective Representatives) shall not, to the extent it may affect,
or relate to, the Company, make, change or rescind any Tax
election, amend any Tax Return or take any position on any Tax
Return, take any action, omit to take any action or enter into any
other transaction (other than in the Ordinary Course of Business)
that would have the effect of increasing the Tax liability or
reducing any Tax asset of Buyer or the Company in respect of any
taxable period ending after the Closing Date and, with respect to
any taxable period beginning before and ending after the Closing
Date, the portion of such taxable period beginning on and including
the Closing Date (“Post-Closing Tax
Period”). Each Member agrees that Buyer is to have no
liability for any Tax resulting from any action of such Member, the
Company, its Affiliates or any of their respective Representatives,
and agrees to indemnify and hold harmless Buyer (and, after the
Closing Date, the Company) against any such Tax or reduction of any
Tax asset.
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(b) All transfer,
documentary, sales, use, stamp, registration, value added and other
such Taxes and fees (including any penalties and interest) incurred
in connection with this Agreement and the other Transaction
Documents (including any real property transfer Tax and any other
similar Tax) shall be borne, evenly split and paid by the
Company and Buyer when due. The Members shall, at their own
expense, timely file any Tax Return or other document with respect
to such Taxes or fees (and Buyer shall cooperate with respect
thereto as necessary).
(c) The Members shall
prepare, or cause to be prepared, all Tax Returns required to be
filed by the Company after the Closing Date with respect to a
“taxable period” ending on or before the Closing Date
and, with respect to any taxable period beginning before and ending
after the Closing Date, the portion of such taxable period ending
on and including the Closing Date (“Pre-Closing Tax
Period”).
(d) Any such Tax Return
for a Pre-Closing Tax Period shall be prepared in a manner
consistent with past practice (unless otherwise required by Law)
and without a change of any election or any accounting method
(unless otherwise required by Law) and shall be submitted by Buyer
to the Members (together with schedules, statements and, to the
extent requested by the Members, supporting documentation) at least
forty-five (45) days prior to the due date (including extensions)
of such Tax Return. If any Member objects to any item on any such
Tax Return, it shall, within ten (10) days after delivery of such
Tax Return, notify Buyer in writing that it so objects, specifying
with particularity any such item and stating the specific factual
or legal basis for any such objection. If a notice of objection
shall be duly delivered, Buyer and such Member shall negotiate in
good faith and use their reasonable best efforts to resolve such
items. If Buyer and such Member are unable to reach such agreement
within ten (10) days after receipt by Buyer of such notice, the
disputed items shall be resolved by the Accounting Expert and any
determination by the Accounting Expert shall be final. The
Accounting Expert shall resolve any disputed items within twenty
(20) days of having the item referred to it pursuant to such
procedures as it may require. If the Accounting Expert is unable to
resolve any disputed items before the due date for such Tax Return,
the Tax Return shall be filed as prepared by Buyer and then amended
to reflect the Accounting Expert’s resolution. The costs,
fees and expenses of the Accounting Expert shall be by Buyer, on the one hand, and
such Member, on the other hand, in such amount(s) as shall be
determined by the Accounting Expert based on the proportion that
the aggregate amount of disputed items submitted to the Accounting
Expert that is unsuccessfully disputed by Buyer, on the one hand,
or such Member, on the other hand, as determined by the Accounting
Expert, bears to the total amount of such disputed items so
referred to the Accounting Expert for resolution. The preparation
and filing of any Tax Return of the Company that does not relate to
a Pre-Closing Tax Period shall be exclusively within the control of
Buyer.
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8.2 Termination
of Existing Tax Sharing Agreements. Any and all
existing Tax sharing agreements (whether written or not) binding
upon the Company shall be terminated as of the Closing Date. After
such date neither the Company, the Members nor any of the
Members’ Affiliates and their respective Representatives
shall have any further rights or liabilities
thereunder.
8.3 Tax
Indemnification. The Members shall
jointly and severally indemnify the Company, Buyer, and each Buyer
Indemnitee and hold them harmless from and against (a) any
Loss attributable to any breach of or inaccuracy in any
representation or warranty made in Section 5.21; (b) any Loss
attributable to any breach or violation of, or failure to fully
perform, any covenant, agreement, undertaking or obligation in this
Article 8;
(c) all Taxes of the Company or relating to the business or
assets of the Company for all Pre-Closing Tax Periods; (d) all
Taxes of any member of an affiliated, consolidated, combined or
unitary group of which the Company (or any predecessor of the
Company) is or was a member on or prior to the Closing Date by
reason of a liability under Treasury Regulation
Section 1.1502-6 or any comparable provisions of foreign,
state or local Law; and (e) any and all Taxes of any person
imposed on the Company arising under the principles of transferee
or successor liability or by contract, relating to an event or
transaction occurring before the Closing Date. In each of the above
cases, together with any out-of-pocket fees and expenses (including
attorneys’ and accountants’ fees) incurred in
connection therewith. The Members shall reimburse Buyer for any
Taxes of the Company that are the responsibility of the Members
pursuant to this Section
8.3 within ten (10) Business Days after payment of such
Taxes by Buyer or the Company.
8.4 Straddle Period. In the case of
Taxes that are payable with respect to a taxable period that begins
before and ends after the Closing Date (each such period, a
“Straddle
Period”), the portion of any such Taxes that are
treated as Taxes of the Company for any Pre-Closing Tax Period
shall be:
(a) in the case of
Taxes based upon, or related to, income or receipts, deemed equal
to the amount which would be payable if the taxable year ended with
the Closing Date; and
(b) in the case of
other Taxes, deemed to be the amount of such Taxes for the entire
period multiplied by a fraction the numerator of which is the
number of days in the period ending on the Closing Date and the
denominator of which is the number of days in the entire
period.
8.5 Contests. Buyer agrees to give
written notice to the Members of the receipt of any written notice
by the Company, Buyer or any of Buyer’s Affiliates which
involves the assertion of any claim, or the commencement of any
Action, in respect of which an indemnity may be sought by Buyer
pursuant to this Article 8 (a
“Tax
Claim”); provided, that failure to
comply with this provision shall not affect Buyer’s right to
indemnification hereunder. Buyer shall control the contest or
resolution of any Tax Claim; provided, however, that Buyer shall
obtain the prior written consent of the Members (which consent
shall not be unreasonably withheld or delayed) before entering into
any settlement of a claim or ceasing to defend such claim; and,
provided
further, that the
Members shall be entitled to participate in the defense of such
claim and to employ counsel of its choice for such purpose, the
fees and expenses of which separate counsel shall be borne solely
by the Members.
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8.6 Cooperation
and Exchange of Information. The Members and
Buyer shall provide each other with such cooperation and
information as either of them reasonably may request of the other
in filing any Tax Return pursuant to this Article 8 or in connection with
any audit or other proceeding in respect of Taxes of the Company.
Such cooperation and information shall include providing copies of
relevant Tax Returns or portions thereof, together with
accompanying schedules, related work papers and documents relating
to rulings or other determinations by tax authorities. The Members
agree that all books and records in their possession with respect
to Tax matters pertinent to the Company are the property of the
Company. The Members shall deliver all such books and records to
the Company prior to Closing. After the Closing, the Company shall
make available to the Members such books and records to the extent
reasonably necessary for the Members’ review of Tax Returns
prepared pursuant to Section 8.1 or for any other
reasonable purpose related to the Members’ ownership of the
Company prior to the Closing, provided, however, that in no
event will the Members be entitled to information under this
Section in connection with any litigation or dispute among the
parties.
8.7 Tax
Treatment of Indemnification Payments. Any
indemnification payments pursuant to this Article 8 shall be treated as
an adjustment to the Purchase Price by the parties for Tax
purposes, unless otherwise required by Law.
8.8 Survival.
Notwithstanding anything in this Agreement to the contrary, the
provisions of Section
5.21 and this Article 8 shall survive for the
full period of all applicable statutes of limitations (giving
effect to any waiver, mitigation or extension thereof) plus 60
days.
8.9 Overlap.
To the extent that any obligation or responsibility pursuant to
Article 10 may
overlap with an obligation or responsibility pursuant to this
Article 8, the
provisions of this Article
8 shall govern.
ARTICLE 9
Conditions
to closing
9.1 Conditions
to Obligations of All Parties. The obligations
of each party to consummate the Transactions shall be subject to
the fulfillment, at or prior to the Closing, of each of the
following conditions
(a) No Governmental
Authority shall have enacted, issued, promulgated, enforced or
entered any Governmental Order which is in effect and has the
effect of making the Transactions illegal, otherwise restraining or
prohibiting consummation of such transactions or causing any of the
transactions contemplated hereunder to be rescinded following
completion thereof.
(b) No Action shall
have been commenced against Buyer, the Members or the Company,
which would prevent the Closing. No injunction or restraining order
shall have been issued by any Governmental Authority, and be in
effect, which restrains or prohibits any transaction contemplated
hereby.
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9.2 Conditions
to Obligations of Buyer. The obligations
of Buyer to consummate the Transactions shall be subject to the
fulfillment or Buyer’s waiver, at or prior to the Closing, of
each of the following conditions:
(a) The representations
and warranties of contained in Article 4 and Article 5 shall be true and
correct in all material respects on and as of the date hereof and
on and as of the Closing Date with the same effect as though made
at and as of such date (except those representations and warranties
that address matters only as of a specified date, the accuracy of
which shall be determined as of that specified date in all
respects).
(b) The Company and the
Members shall have duly performed and complied in all material
respects with all agreements, covenants and conditions required by
this Agreement and each of the other Transaction Documents to be
performed or complied with by it prior to or on the Closing Date;
provided,
that, with respect
to agreements, covenants and conditions that are qualified by
materiality, the Company and the Members shall have performed such
agreements, covenants and conditions, as so qualified, in all
respects.
(c) All registrations,
filings, applications, notices, consents, approvals, orders,
qualifications and waivers listed on Section 9.2(c) of the
Disclosure Schedule shall have been filed, made or obtained,
as applicable.
(d) From the date of
this Agreement, there shall not have occurred any Material Adverse
Effect, nor shall any event or events have occurred that,
individually or in the aggregate, with or without the lapse of
time, could reasonably be expected to result in a Material Adverse
Effect.
(e) Buyer shall have
received estoppel certificates from the lessor of each Leased Real
Property addressed to the Company in customary form.
(f) The Company shall
have delivered an Estimated Closing Statement pursuant to
Section 3.1(a) in
form reasonably approved by Buyer, and the amount obtained by
subtracting the Estimated Closing Company Transaction Expenses from
the Estimated Closing Company Net Cash (each, as reflected in the
Estimated Closing Statement) shall exceed the Target Company Net
Cash.
(g) The Cash Balance
Pension Plan shall been properly terminated as provided in this
Agreement and the Members shall utilize best efforts to cooperate
with the Buyer post-Closing to ensure the completion of the
termination and approval of the termination as a standard
termination by the PBGC.
(h) The Company and the
Members shall have delivered each of the closing deliverables set
forth in Sections
2.2 and 2.3.
(i) The form and
substance of all certificates, instruments, opinions and other
documents delivered to Buyer under this Agreement shall be
satisfactory in all reasonable respects to Buyer and its
counsel.
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9.3 Conditions to Obligations of the
Company and the Members. The obligations of the Company and
the Members to consummate the Transactions shall be subject to the
fulfillment or the Members’ waiver, at or prior to the
Closing, of each of the following conditions:
(a) The representations
and warranties of Buyer contained in Article 6 shall be true and
correct in all respects on and as of the date hereof and on and as
of the Closing Date with the same effect as though made at and as
of such date.
(b) Buyer shall have
duly performed and complied in all material respects with all
agreements, covenants and conditions required by this Agreement and
each of the other Transaction Documents to be performed or complied
with by it prior to or on the Closing Date including, without
limitation, the obligation to Close and deliver the Purchase Price
and Charge Stock.
ARTICLE 10
Indemnification
10.1 Survival. Subject to the
limitations and other provisions of this Agreement, the
representations and warranties contained herein (other than any
representations or warranties contained in Section 5.21 which are subject
to Article 8) shall
survive the Closing and shall remain in full force and effect until
eighteen (18) months following of the Closing Date (the
“General Survival
Period”); provided, that the
representations and warranties in Article 4, Section 5.1, Section 5.2, Section 5.3(a), Section 5.4, Section 5.5, Section 5.27, Section 5.28, Section 5.30, Section 6.1, Section 6.2(a), and
Section 6.5, and
any representation in the case of fraud, or intentional
misrepresentation shall survive indefinitely(but not beyond any
applicable statute of limitations), and the representations and
warranties in Section
5.19, Section
5.20, Section
5.21, and shall survive for the full period of all
applicable statutes of limitations (giving effect to any waiver,
mitigation or extension thereof) plus 60 days (the representations
and warranties identified in the foregoing, the “Fundamental
Representations”). All covenants and agreements of the
parties contained herein (other than any covenants or agreements
contained in Article
8 which are subject to Article 8) and any statement
contained in any certificate delivered pursuant hereto shall
survive the Closing indefinitely (but in such case not beyond any
applicable statute of limitations) or for the period explicitly
specified therein. Notwithstanding the foregoing, any claims
asserted in good faith with reasonable specificity (to the extent
known at such time) and in writing by notice from the non-breaching
party to the breaching party prior to the expiration date of the
applicable survival period shall not thereafter be barred by the
expiration of the relevant representation or warranty and such
claims shall survive until finally resolved. For the avoidance of
doubt, the references in this Section 10.1 to the “statutes
of limitations” shall refer to the statute of limitations
applicable to the particular matter that gave rise to a breach of
the representation or warranty in question, and not to the statute
of limitations applicable to a breach of this
Agreement.
10.2 Indemnification
by the Members. Subject to the other terms and conditions of
this Article 10,
the Members shall, jointly and severally, indemnify and defend each
of Buyer and its Affiliates (including after the Closing, the
Company) and their respective Representatives (collectively, the
“Buyer
Indemnitees”) against, and shall hold each of them
harmless from and against, and shall pay and reimburse each of them
for, any and all Losses that is or may be incurred or sustained by,
or imposed upon, the Buyer Indemnitees based upon, arising out of,
with respect to, relating to or by reason of:
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(a) A inaccuracy in or
breach of any representation or warranty of the Members or the
Company contained in this Agreement (other than in respect of
Section 5.21, it
being understood that the sole remedy for any such inaccuracy in or
breach thereof shall be pursuant to Article 8), as of the date such
representation or warranty was made or as if such representation or
warranty was made on and as of the Closing Date (except for
representations and warranties that expressly relate to a specified
date, the inaccuracy in or breach of which will be determined with
reference to such specified date);
(b) a breach or
non-fulfillment of any covenant, agreement or obligation to be
performed by any Member or the Company pursuant to this Agreement
(other than any breach or violation of, or failure to fully
perform, any covenant, agreement, undertaking or obligation in
Article 8, it being
understood that the sole remedy for any such breach, violation or
failure shall be pursuant to Article 8);
(c) Company Transaction
Expenses or any Indebtedness outstanding as of Closing (other than
Permitted Indebtedness);
(d) a claim or right
asserted or held by any person who is or at any time was an
officer, director, employee or agent of the Company (against the
Company or Buyer, against any Affiliate of the Company or Buyer or
against any other Person) involving a right or entitlement or an
alleged right or entitlement to indemnification, reimbursement of
expenses or any other relief or remedy (under the Governing
Documents, under any indemnification agreement or similar Contract,
under any applicable Laws or otherwise) with respect to any act or
omission on the part of such person or any event or other
circumstance that arose, occurred or existed at or prior to the
Closing that is not otherwise covered by insurance maintained in
the Ordinary Course of Business.
(e) All matters related
to the Cash Balance Pension Plan and the termination thereof,
including but not limited to any shortfall or deficit determined to
exist by the PBGC;
(f) any audit, review,
or similar action undertaken by the PPP Lender, SBA or any other
Governmental Authority with regard to the PPP Loan;
10.3 Indemnification by Buyer.
Subject to the other terms and conditions of this
Article 10, Buyer shall
indemnify and defend the Members and their Representatives
(collectively, the “Member
Indemnitees”) against, and shall hold each of them
harmless from and against, and shall pay and reimburse each of them
for, any and all Losses incurred or sustained by, or imposed upon,
the Member Indemnitees based upon, arising out of, with respect to,
relating to or by reason of:
(a) an inaccuracy in or
breach of any of the representations or warranties of Buyer
contained in this Agreement or in any certificate or instrument
delivered by or on behalf of Buyer pursuant to this Agreement, as
of the date such representation or warranty was made or as if such
representation or warranty was made on and as of the Closing Date
(except for representations and warranties that expressly relate to
a specified date, the inaccuracy in or breach of which will be
determined with reference to such specified date); or
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(b) a breach or
non-fulfillment of any covenant, agreement or obligation to be
performed by Buyer pursuant to this Agreement (other than
Article 8, it being
understood that the sole remedy for any such breach thereof shall
be pursuant to Article
8); or
(c) a claim or right
asserted or held by any person against the Members or their
Representatives arising by reason of any act or omission on the
part of the Buyer (or Company after Closing) or any event or other
circumstance that arises or occurs after the Closing;
or
(d) a claim against the
Members for any personal guaranty obligation of such Member with
regard to outstanding bonds of the Company, provided that such
claims are asserted post-Closing.
10.4 Indemnification Procedures. The
party making a claim under this Article 10 is referred to as
the “Indemnified
Person”, and the party against whom such claims are
asserted under this Article 10 is referred to as
the “Indemnifying
Person”.
(i) Notice. If any Indemnified
Person receives notice of the assertion or commencement of any
Action made or brought by any Person who is not a party or an
Affiliate of a party or a Representative of the foregoing (a
“Third Party
Claim”) against such Indemnified Person with respect
to which the Indemnifying Person is obligated to provide
indemnification under this Agreement, the Indemnified Person shall
give the Indemnifying Person reasonably prompt written notice
thereof, but in any event not later than thirty (30) days after
receipt of such notice of such Third Party Claim. The failure to
give such prompt written notice shall not, however, relieve the
Indemnifying Person of its indemnification obligations, except and
only to the extent that the Indemnifying Person forfeits rights or
defenses by reason of such failure. Such notice by the Indemnified
Person shall describe the Third Party Claim in reasonable detail,
shall include copies of all material written evidence thereof and
shall indicate the estimated amount, if reasonably practicable, of
the Loss that has been or may be sustained by the Indemnified
Person.
(ii) Right
to Defend. Upon receipt of the notice, the Indemnifying
Person will have the right to defend the Indemnified Person against
the Third Party Claim with counsel reasonably satisfactory to the
Indemnified Person, provided, that (i) within
thirty (30) days after the Indemnified Person has given notice of
the Third Party Claim the Indemnifying Person acknowledges in
writing to the Indemnified Person its unqualified obligation to
indemnify the Indemnified Person as provided hereunder; provided,
further, that, if after the Indemnifying Person acknowledges its
unqualified obligation to indemnify the Indemnified Person and
assumed the defense of such Third Party Claim, (A) new allegations
or claims are asserted as part of such Third Party Claim, or (B)
the original Third Party Claim is otherwise amended in a manner
that materially increases the indemnification obligations of the
Indemnifying Person under such Third Party Claim (including by
reason of new facts having been discovered or being alleged), then,
in each such case, the Indemnifying Person shall either
(1) notify the Indemnified Person of such changes to the
original Third Party Claim, within fifteen (15) days of such
changes, and turn over the defense of the Third Party Claim to the
Indemnified Person, in which case the Indemnifying Person shall be
deemed not to have acknowledged its obligation to indemnify the
Indemnified Person (except to the extent all or any portion of the
original Third Party Claim has already been determined, compromised
or settled), or (2) continue to defend such Third Party Claim,
in which case the Indemnifying Person shall be deemed to have
acknowledged its obligation to indemnify the Indemnified Person
with respect to such Third Party Claim as so changed, (ii) the
Indemnifying Person provides the Indemnified Person with evidence
reasonably acceptable to the Indemnified Person that the
Indemnifying Person will have the financial resources to defend
against the Third Party Claim and fulfill its indemnification
obligations hereunder, (iii) the Third Party Claim involves
only money damages, and does not seek statutory, enhanced or treble
damages or an injunction or other equitable relief, (iv) settlement
of, or an adverse judgment with respect to, the Third Party Claim
is not, in the good faith judgment of the Indemnified Person,
likely to establish a precedential custom or practice adverse to
the continuing business interests or the reputation of the
Indemnified Person or have a material adverse effect on the
Indemnified Person, (v) the Third Party Claim does not involve
a supplier, customer, distributor, licensor, licensee, lessor or
insurer of the Company or any Affiliate thereof or a Governmental
Authority, (vi) the Third Party Claim does not involve a class
action lawsuit and (vii) the Indemnifying Person conducts the
defense of the Third Party Claim actively and diligently. The
Indemnifying Person will keep the Indemnified Person apprised of
all material developments, including settlement offers, with
respect to the Third Party Claim and permit the Indemnified Person
to participate in the defense of the Third Party Claim with counsel
selected by it subject to the Indemnifying Person’s right to
control the defense thereof. The fees and disbursements of such
counsel shall be at the expense of the Indemnified Person,
provided, that if
in the reasonable opinion of counsel to the Indemnified Person,
(x) there are legal defenses available to an Indemnified
Person that are different from or additional to those available to
the Indemnifying Person; or (y) there exists a conflict of
interest between the Indemnifying Person and the Indemnified Person
that cannot be waived, the Indemnifying Person shall be liable for
the reasonable fees and expenses of counsel to the Indemnified
Person in each jurisdiction for which the Indemnified Person
determines counsel is required. If the Indemnifying Person elects
not to or is not entitled to defend such Third Party Claim, fails
to promptly notify the Indemnified Person in writing of its
election to defend as provided in this Agreement, or fails to
diligently prosecute the defense of such Third Party Claim, the
Indemnified Person may, subject to Section 10.5(c), pay,
compromise, defend such Third Party Claim and seek indemnification
for any and all Losses based upon, arising from or relating to such
Third Party Claim. The Members and Buyer shall cooperate with each
other in all reasonable respects in connection with the defense of
any Third Party Claim.
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(iii) Cooperation.
With respect to any Third Party Claim, both the Indemnified Person
and the Indemnifying Person, as the case may be, shall keep the
other Person fully informed of the status of such Third Party Claim
and any related Actions at all stages thereof where such Person is
not represented by its own counsel. The parties agree to provide
reasonable access to the other parties to such documents and
information as may be reasonably requested in connection with the
defense, negotiation or settlement of any such Third Party Claim;
provided, however, that the parties shall cooperate in such a
manner as to preserve in full (to the extent possible) the
confidentiality of all Confidential Information and the
attorney-client and work-product privileges of the other party. In
connection therewith, each party agrees that: (i) it will use
commercially reasonable efforts, in respect of any Third Party
Claim in which it has assumed or participated in the defense, to
avoid production of Confidential Information (consistent with
applicable Law and rules of procedure); and (ii) all
communications between any party and counsel responsible for or
participating in the defense of any Third Party Claim shall, to the
extent possible, be made so as to preserve any applicable
attorney-client or work-product privilege.
(iv) Settlement.
The Indemnifying Person shall not enter into settlement or
compromise of any Third Party Claim or permit a default or consent
to entry of any judgment or admit any liability with respect
thereto, if it is not defending such Third Party Claim. If the
Indemnifying Person is defending such Third Party Claim, it shall
not enter into settlement or compromise of any Third Party Claim or
permit a default or consent to entry of any judgment or admit any
liability with respect thereto without the prior written consent of
the Indemnified Person unless such settlement, compromise or
judgment (A) does not involve liability or the creation of a
financial or other obligation on the part of the Indemnified
Person, does not involve any finding or admission of any violation
of Law or any violation of the rights of any Person or the
admission of wrongdoing and would not have any adverse effect on
other claims that may have been made against the Indemnified
Person, (B) does not involve any relief other than monetary damages
that are paid in full by the Indemnifying Person, and (C) provides,
for the complete, final and unconditional release of each
Indemnified Person and its Affiliates from all liabilities and
obligations in connection with such Third Party Claim and would not
otherwise adversely affect the Indemnified Person.
(b) Direct Claims. Any Action by an
Indemnified Person on account of a Loss which does not result from
a Third Party Claim (a “Direct
Claim”) shall be asserted by the Indemnified Person
giving the Indemnifying Person reasonably prompt written notice
thereof, but in any event not later than thirty (30) days after the
Indemnified Person becomes aware of such Direct Claim. The failure
to give such prompt written notice shall not, however, relieve the
Indemnifying Person of its indemnification obligations, except and
only to the extent that the Indemnifying Person forfeits rights or
defenses by reason of such failure. Such notice by the Indemnified
Person shall describe the Direct Claim in reasonable detail, shall
include copies of all material written evidence thereof and shall
indicate the estimated amount, if reasonably practicable, of the
Loss that has been or may be sustained by the Indemnified Person.
The Indemnifying Person shall have thirty (30) days after its
receipt of such notice to respond in writing to such Direct Claim.
The Indemnified Person shall allow the Indemnifying Person and its
professional advisors to investigate the matter or circumstance
alleged to give rise to the Direct Claim, and whether and to what
extent any amount is payable in respect of the Direct Claim and the
Indemnified Person shall assist the Indemnifying Person’s
investigation by giving such information and assistance (including
access to the Company’s premises and personnel and the right
to examine and copy any accounts, documents or records) as the
Indemnifying Person or any of its professional advisors may
reasonably request. If the Indemnifying Person does not so respond
within such thirty (30) day period, the Indemnifying Person shall
be deemed to have rejected such claim, in which case the
Indemnified Person shall be free to pursue such remedies as may be
available to the Indemnified Person on the terms and subject to the
provisions of this Agreement.
(c) Tax Claims. Notwithstanding any
other provision of this Agreement, the control of any claim,
assertion, event or proceeding in respect of Taxes of the Company
(including, but not limited to, any such claim in respect of a
breach of the representations and warranties in Section 5.21 hereof or any
breach or violation of or failure to fully perform any covenant,
agreement, undertaking or obligation in Article 8) shall be
governed exclusively by Article 8 hereof.
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10.5 Manner
of Payments.
(a) All
indemnification payments owing by Buyer to any Member Indemnitee
hereunder, as finally determined pursuant to this Article 10, shall be effected,
no later than five (5) Business Days after the final determination
thereof by wire transfer of immediately available funds from Buyer
to an account designated in writing by such Person.
(b) All indemnification
payments owing by the Members to any Buyer Indemnitee hereunder, as
finally determined pursuant to this Article 10, shall be effected,
no later than five (5) Business Days after the final determination
thereof, (i) first, by wire transfer of immediately available funds
from the Indemnity Escrow to an account designated in writing by
such Buyer Indemnitee, and (ii) second, by wire transfer of
immediately available funds from the applicable Members to an
account designated in writing by such Buyer Indemnitee. For the
avoidance of doubt, Buyer may exercise its rights pursuant to this
Section 10.5(b) on
more than one occasion to the extent applicable Losses are
incurred, which are not paid by the Members and which are
determined to be owing as provided above.
10.6 Limitations
(a) The Members will
not have any liability under Section 10.2 until the Buyer
Indemnitees have suffered Losses in excess of $100,000.00 (the
“Basket”) in the aggregate
arising from Claims under Section 10.2. Further, the Members shall
not have any liability under Section 10.2 in excess of One
Million Three Hundred Fifty Dollars ($1,350,000.00) (the
“Cap”);
provided,
however, that the
Cap shall not apply to (a) the breach of any Fundamental
Representations, (b) any breach of the representations contained in
Section 5.21, or
(c) any fraud or criminal conduct.
(b) NOTWITHSTANDING ANY
PROVISION CONTAINED HEREIN TO THE CONTRARY, NEITHER THE MEMBERS
(AND COMPANY) NOR BUYER SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
PROSPECTIVE PROFITS OR REVENUES, OR DIMINUTION OF VALUE OR
MULTIPLES OF EARNINGS DAMAGES, OR PUNITIVE, SPECIAL, INDIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT,
TORT OR NEGLIGENCE, OR IN ANY OTHER MANNER ARISING FROM THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT;
provided,
however, a party
may seek and recover indemnification from the other party for third
party claims against the party seeking indemnification that
includes such damages.
10.7 No
Circular Recovery. The Members may
not seek indemnification under the Governing Documents of the
Company for any matter for which the Members have an
indemnification obligation hereunder.
10.8 Materiality.
For purposes of
calculating the amount of Losses incurred by a Person seeking
indemnification hereunder arising out of or resulting from any
breach of a representation, warranty covenant or agreement
contained herein, and for purposes of determining whether such a
breach has occurred, the representations, warranties, covenants and
agreements contained herein shall be deemed to have been made
without any qualifications as to “materiality”,
“Material Adverse Effect” or other similar
qualifications.
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10.10 Tax
Treatment of Indemnification Payments. All cash
indemnification payments made under this Agreement shall be treated
for Tax purposes by the parties as an adjustment to the Purchase
Price, unless otherwise required by Law.
10.11 Effect
of Investigation and Waiver. Each party hereby
agrees that its representations, warranties and covenants (and any
related conditions to Closing) shall not be affected or deemed
waived by reason of the fact that any other party knew or should
have known that such representations, warranties and covenants is
or may be inaccurate or may have been breached, unless the other
party expressly agreed in a writing delivered prior to Closing to
waive such inaccuracy or breach.
10.12 Exclusive
Remedies. Subject to
Section 12.11, the
parties acknowledge and agree that their sole and exclusive remedy
with respect to any and all claims (other than claims arising from
fraud, intentional misrepresentation, criminal activity or willful
misconduct on the part of a party in connection with the
Transactions) for any breach of any representation, warranty,
covenant, agreement or obligation set forth herein shall be
pursuant to the indemnification provisions set forth in
Article 8 and this
Article 10. Nothing
in this Section
10.10 shall limit any Person’s right to seek and
obtain any equitable relief to which any Person shall be entitled
or to seek any remedy on account of any party’s fraud,
intentional misrepresentation, criminal activity or willful
misconduct.
10.13 No
Contribution. Anything to the
contrary herein notwithstanding, the Members shall not have any
right to seek any indemnification or contribution from or remedy
against the Company whether arising prior to or after the Closing
Date in respect of any breach of any representation or warranty
contained in this Agreement by the Company or the failure of the
Company to comply with any covenant or agreement contained in this
Agreement to be performed by the Company on or prior to the Closing
Date and the Members hereby waive any such claim they may have
against the Company with respect thereto whether at law, in equity
or otherwise.
ARTICLE 11
Termination
11.1 Termination.
This Agreement may be terminated at any time prior to the
Closing:
(a) by the mutual
written consent of the Members and Buyer;
(b) by Buyer by written
notice to the Members if:
(i) Buyer is not then
in material breach of any provision of this Agreement and there has
been a material breach, inaccuracy in or failure to perform any
material representation, warranty, covenant or agreement made by
the Members or the Company in this Agreement that would give rise
to the failure of any of the conditions specified in Article 9 and such breach,
inaccuracy or failure has not been cured within ten (10) days of
the Members’ receipt of written notice of such breach from
Buyer; or
(ii) any
of the conditions set forth in Section 9.1 or Section 9.2 shall not have
been, or if it becomes apparent that any of such conditions will
not be, fulfilled by December 31, 2021 (the “Outside Date”) unless
such failure shall be due to the failure of Buyer to perform or
comply with any of the covenants or agreements hereof to be
performed or complied with by it prior to the Closing;
-55-
(c) by the Members by
written notice to Buyer if:
(i) neither the Members
nor the Company is then in material breach of any provision of this
Agreement and there has been a breach, inaccuracy in or failure to
perform any representation, warranty, covenant or agreement made by
Buyer in this Agreement that would give rise to the failure of any
of the conditions specified in Article 9 and such breach,
inaccuracy or failure has not been cured within ten (10) days of
Buyer’s receipt of written notice of such breach from the
Members; or
(ii) any
of the conditions set forth in Section 9.1 or Section 9.3 shall not have
been, or if it becomes apparent that any of such conditions will
not be, fulfilled by the Outside Date, unless such failure shall be
due to the failure of the Members or the Company to perform or
comply with any of the covenants or agreements hereof to be
performed or complied with by it prior to the Closing;
or
(d) by Buyer or the
Members in the event that (i) there shall be any Law that
makes consummation of the Transactions illegal or otherwise
prohibited or (ii) any Governmental Authority shall have
issued a Governmental Order restraining or enjoining the
Transactions, and such Governmental Order shall have become final
and non-appealable.
11.2 Effect
of Termination. In the event of
the termination of this Agreement in accordance with this
Article 11,
this Agreement shall forthwith become void and there shall be no
liability on the part of any party except:
(a) for this
Article 11 and
Section 7.10 and
Article 12, which
provisions shall survive the termination of this Agreement;
and
(b) that nothing herein
shall relieve any party from liability for any breach of any
provision hereof including, without limitation, the failure to
Close, after all required closing conditions are satisfied or
waived in writing, and deliver the Purchase Price and Charge
Stock.
ARTICLE 12
Miscellaneous
12.1 Expenses.
Except as otherwise expressly provided herein, all costs and
expenses, including, without limitation, fees and disbursements of
counsel, financial advisors and accountants, incurred in connection
with this Agreement and the Transactions shall be paid by the party
incurring such costs and expenses, whether or not the Closing shall
have occurred; provided that the Members shall
be responsible for all filing and other similar fees payable in
connection with any filings or submissions under any process
required by a Governmental Authority.
12.2 Notices.
All notices, requests, consents, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to
have been given (a) when delivered by hand (with written
confirmation of receipt); (b) when received by the addressee
if sent by a nationally recognized overnight courier (receipt
requested); (c) on the date sent by facsimile or e-mail of a
PDF document (with confirmation of transmission) if sent during
normal business hours of the recipient, and on the next Business
Day if sent after normal business hours of the recipient or
(d) on the third (3rd) day after the date
mailed, by certified or registered mail, return receipt requested,
postage prepaid. Such communications must be sent to the respective
parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with
this Section
12.2):
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|
If to
the Members or the Company (prior to the Closing):
|
B W
Electrical Services LLC 000 Xxxxxxxxx Xxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxxxxx, Managing Partner
Email:
xxxxxxxxxx@xxxx.xxx
|
|
with a
copy (which shall not constitute notice) to:
|
Xxxxx
Seglias Pallas Greenhall & Xxxxxx, PC
0000
Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxxxxxx, Esquire
Email:
xxx@xxxxxxxxxxxx.xxx
|
|
If to
Buyer:
|
Charge
Infrastructure, Inc.
000
Xxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn
Xxxxx Xxxxxx
Email:
xxxxx@xxxxxx.xxxxxxxxxxx
|
|
with a
copy (which shall not constitute notice) to:
|
Xxxxxx
& Xxxxxxx, PC
Xxx
Xxxxxxxxxx Xxxxxx
Xxxxxxxxxxx,
XX 00000
Attention:
Xxxxx X. XxXxxxxx, Esquire
Facsimile:
(000) 000-0000
Email:
xxxxxxxxx@xxxxxxxxx.xxx
|
12.3 Construction.
Unless the express context otherwise requires: (a) the words
“hereof”, “herein”, and
“hereunder” and words of similar import, when used in
this Agreement, shall refer to this Agreement as a whole and not to
any particular provision of this Agreement; (b) the terms defined
in the singular have a comparable meaning when used in the plural,
and vice versa; (c) the terms “Dollars” and
“$” mean United States Dollars; (d) references herein
to a specific Article, Section, clause, Schedule or Exhibit shall
refer, respectively, to the Articles, Sections and clauses of, and
Schedules and Exhibits to, this Agreement; (e) wherever the word
“include,” “includes,” or
“including” is used in this Agreement, it shall be
deemed to be followed by the words “without
limitation”; (f) any reference to the masculine, feminine or
neuter gender shall include each other gender; (g) when reference
is made herein to “the business of” a Person, such
reference shall be deemed to include the business of all direct and
indirect Subsidiaries of such Person, (h) all accounting and
financial terms shall be deemed to have the meanings assigned
thereto under GAAP unless expressly stated otherwise, (i) when this
Agreement states that the Company has “made available,”
“delivered” or “provided” (or terms of
similar import) a particular document or other item, it shall mean
that the Company has made a true, correct and complete copy of such
document or item (together with all amendments, supplements or
other modifications thereto or waivers thereof) available for
viewing by Buyer and its representatives (and properly labeled,
including both as to its location within the index to an electronic
dataroom (the “Dataroom”) and the
description of the file containing such document or information) in
the Dataroom, as such materials were posted to the Dataroom at
least three (3) Business Days prior to the date hereof and not
removed on or prior to the date hereof, and, if any such document
or information has not been continuously available to each of
Buyer’s representatives who have access to the Dataroom since
the initial date such representatives were granted access, a
notification that such document or information was added to the
Dataroom has been sent to each representative of Buyer who has
access to the Dataroom prior to the fifth (5th) Business Day
preceding the Closing Date, (j) any reference to any applicable Law
in this Agreement refers to such applicable Law as in effect at the
date of this Agreement and the Closing Date, (k) in the computation
of periods of time from a specified date to a later specified date,
the word “from” means “from and including”
and the words “to” and “until” each mean
“to but excluding” and if the last day of any such
period is not a Business Day, such period will end on the next
Business Day, (l) when calculating the period of time
“within” which or “following” which any act
or event is required or permitted to be done, notice given or steps
taken, the date which is the reference date in calculating such
period is to be excluded from the calculation and if the last day
of any such period is not a Business Day, such period will end on
the next Business Day, (m) the provision of a table of contents and
the insertion of headings are for convenience of reference only and
shall not affect or be utilized in construing or interpreting this
Agreement, (n) references to “day” means calendar days
unless Business Days are expressly specified, (o) references to any
Person includes such Person’s predecessors, successors and
assigns to the extent, in the case of successors and assigns, such
successors and assigns are permitted by the terms of any applicable
agreement, and reference to a Person in a particular capacity
excludes such Person in any other capacity or individually, (p)
references to a party means a party to this Agreement, (q)
references to a document, instrument, or agreement also refers to
all addenda, exhibits, or schedules thereto, (r) a reference to a
“copy” or “copies” of any document,
instrument, or agreement means a copy or copies that are complete
and correct; and (s) a reference to a list, or any like compilation
(whether in the Schedules to this Agreement or elsewhere), means
that the item referred to is complete and correct. All Exhibits and
Schedules annexed hereto or referred to herein are incorporated in
and made a part of this Agreement as if set forth in full herein.
The parties agree that they have been represented by counsel during
the negotiation and execution of this Agreement and, therefore,
waive the application of any applicable Law or rule of construction
providing that ambiguities in an agreement or other document will
be construed against the party or parties drafting such agreement
or document. Unless expressly provided otherwise, any approval or
consent required to be given by a party in this Agreement shall be
given or withheld by such party in its sole discretion. The fact
that any representation and warranty may be more specific than any
other representation and warranty shall not be construed so as to
limit or restrict the scope, applicability or meaning of any other
representation and warranty contained herein.
-57-
12.4 Severability.
If any term or provision of this Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other term or provision of
this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction. Upon such determination that
any term or other provision is invalid, illegal or unenforceable,
the parties shall negotiate in good faith to modify this Agreement
so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the
Transactions be consummated as originally contemplated to the
greatest extent possible.
12.5 Entire
Agreement. This Agreement
and the Transaction Documents contain the entire understanding of
the parties with respect to the subject matter hereof and thereof
and supersede all prior and contemporaneous oral or written
agreements, negotiations, understandings, statements or proposals
with respect to the subject matter hereof and thereof. In the event
of any inconsistency between the statements in the body of this
Agreement and those in the other Transaction Documents and
Disclosure Schedule (other than an exception expressly set forth as
such in the Disclosure Schedule), the statements in the body of
this Agreement will control.
12.6 Non-Disclosure Agreement. The
terms of the Non-Disclosure Agreement, dated July 17, 2021 by and
between Buyer and the Company (the “Non-Disclosure
Agreement”) are hereby incorporated herein by
reference and shall continue in full force and effect until the
Closing, at which time the Non-Disclosure Agreement and the
obligations of Buyer and its Affiliates thereunder shall terminate.
If this Agreement is, for any reason, terminated prior to the
Closing, then the Non-Disclosure Agreement shall continue in full
force and effect in accordance with its terms.
12.7 Successors
and Assigns
.
This Agreement shall be binding upon and shall inure to the benefit
of the parties and their respective successors and permitted
assigns. No party may assign its rights or delegate any of its
obligations hereunder without the prior written consent of the
other parties, which consent shall not be unreasonably withheld or
delayed; provided,
that Buyer shall be entitled to assign or delegate this Agreement
or all or any part of its rights or obligations hereunder
(a) to any one or more Affiliates of Buyer, provided further
that such assignment shall not relieve Buyer of any of its
obligations hereunder, (b) in connection with the sale of all
or any substantial portion of the assets of Buyer or one or more
Affiliates of Buyer or (c) for collateral security purposes to
any lender providing financing to Buyer. No assignment or
delegation shall relieve the assigning party of any of its
obligations hereunder.
12.8 No
Third-Party Beneficiaries. Except as
provided in Section
8.3 and Article
10, this Agreement is for the sole benefit of the parties
and their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer upon any
other Person or entity any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this
Agreement.
12.9 Amendment
and Modification; Waiver. This Agreement
may only be amended, modified or supplemented by an agreement in
writing signed by each party. No waiver by any party of any of the
provisions hereof shall be effective unless explicitly set forth in
writing and signed by the party so waiving. No waiver by any party
shall operate or be construed as a waiver in respect of any
failure, breach or default not expressly identified by such written
waiver, whether of a similar or different character, and whether
occurring before or after that waiver. No failure to exercise, or
delay in exercising, any right, remedy, power or privilege arising
from this Agreement shall operate or be construed as a waiver
thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power
or privilege.
-58-
12.10 Governing
Law. This Agreement
and the Transaction Documents shall be governed by and construed in
accordance with the internal Laws of the State of New York without
reference to such state’s or any other jurisdiction’s
principles of conflicts of law.
12.11 Forum
Selection; Consent to Jurisdiction; Waiver of Jury
Trial.
(a) Any Action against
Buyer, the Company, or the Members arising out of, or with respect
to, this Agreement or any Governmental Order entered by any court
in respect thereof shall be brought exclusively in the state courts
located in Somerset County, New Jersey (the “Designated Courts”), and
such parties accept the exclusive jurisdiction of the Designated
Courts for the purpose of any such Action. Each of Buyer, the
Company, and the Members agrees that service of any process,
summons, notice or document by U.S. registered mail addressed to
such party in accordance with the addresses set forth in
Section 12.2
shall be effective service of process for any Action brought
against such party in any such court. Buyer hereby designates the
individual listed in Section 12.2 to whom
notice may be given on behalf of Buyer as its true and lawful agent
upon whom may be served any lawful process in any Action instituted
by or on behalf of the Company (before the Closing) or a Member.
The Members and the Company (before the Closing) hereby designate
the Person listed in Section 12.2 to whom
notice may be given on behalf of the Company as their true and
lawful agent upon whom may be served any lawful process in any
Action instituted by or on behalf of Buyer.
(b) In addition, each
of Buyer, the Company and the Members hereby irrevocably waives, to
the fullest extent permitted by Law, any objection which it, he or
she may now or hereafter have to the laying of venue of any Action
arising out of or relating to this Agreement in any Designated
Court or any Governmental Order entered by any of the Designated
Courts and hereby further irrevocably waives any claim that any
Action brought in the Designated Courts has been brought in an
inconvenient forum.
(c) EACH OF BUYER, THE
COMPANY AND THE MEMBERS ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE OUT OF, OR WITH RESPECT TO, THIS
AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES,
AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY
RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT
OR ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(III) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (IV) EACH PARTY
HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS OF THIS SECTION 12.11. ANY PARTY
MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE
WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
-59-
12.12 Specific
Performance. The parties agree
that irreparable damage would occur if any provision of this
Agreement were not performed in accordance with the terms hereof
and that the parties shall be entitled to specific performance of
the terms hereof, in addition to any other remedy to which they are
entitled at law or in equity.
12.13 Counterparts;
Effectiveness. This Agreement
may be executed in several counterparts (including counterparts by
email, facsimile, portable document format (pdf) or any electronic
signature complying with the U.S. federal ESIGN Act of 2000
(including DocuSign)), each of which shall be deemed an original
and all of which shall together constitute one and the same
instrument. This Agreement shall become effective when each party
shall have received a counterpart hereof signed by all of the other
parties. Until and unless each party has received a counterpart
hereof signed by the other Parties, this Agreement shall have no
effect and no party shall have any right or obligation hereunder
(whether by virtue of any other oral or written agreement or other
communication).
12.14 Disclaimer
of Other Representations and Warranties. Except as expressly
set forth in Articles 4 and 5, the Members and Company make no
representation or warranty, express or implied, at law or in
equity, in respect to the Company or its Business or any of the
Company’s assets, liabilities or operations, and any such
other representations or warranties are hereby expressly
disclaimed.
[SIGNATURE
PAGE FOLLOWS]
-60-
IN
WITNESS WHEREOF, each party has duly executed and delivered this
Agreement as of the date first above written.
|
|
“BUYER”
CHARGE
INFRASTRUCTURE, INC.
By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
|
|
|
“COMPANY”
B
W ELECTRICAL SERVICES LLC
By: /s/ Xxxxxxx X.
Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx
Title: Member
|
|
|
“MEMBERS”
/s/ Xxxxxxxxx
Xxxxxxxxx
XXXXXXXXX
XXXXXXXXX
/s/ Xxxxxxx X.
Xxxxxxxxx
XXXXXXX
X. XXXXXXXXX
/s/ Xxxxxx X.
Xxxxxxxxx
XXXXXX
X. XXXXXXXXX
|
-61-
ANNEX A
DEFINITIONS
In this
Annex, and in the Agreement and the other Appendices and Schedules
thereto, unless the context otherwise requires, the following terms
shall have the meanings assigned below and the terms listed in the
chart below shall have the meanings assigned to them in the Section
set forth opposite to such term (unless otherwise specified,
section references in this Annex are to Sections of this
Agreement):1
|
Term:
|
Section:
|
|
Accounting
Expert
|
|
|
Accounting
Principles
|
3.1(a)
|
|
Accounting
Expert
|
8.1(d)
|
|
Acquisition
Proposal
|
|
|
Agreement
|
Preamble
|
|
Basket
Base
Purchase
Price
|
|
|
Benefit
Plan
|
|
|
Buyer
|
Preamble
|
|
Buyer
Indemnitees
|
1.02
|
|
Cash
Balance Pension Plan Adjustment
|
3.5(a)
|
|
Closing
|
|
|
Closing
Company Members’
Equity
|
3.1(c)
|
|
Closing
Company Transaction
Expenses
|
3.1(d)
|
|
Closing
Date
|
|
|
Closing
Statement
|
|
|
Company
|
Preamble
|
|
Company
Encumbrances
|
2.3(g)
|
|
Company
Intellectual
Property
|
|
|
Company
IP
Agreements
|
|
|
Company
IP
Registrations
|
|
|
Company
Net
Cash
|
3.1(e)
|
|
Company
Transaction
Expenses
|
3.1(f)
|
|
Confidential
Information
|
7.5
|
|
Assets
|
3.1(e)
|
|
Liabilities
|
3.1(f)
|
|
Dataroom
|
12.3
|
|
Designated
Courts
|
12.11(a)
|
|
Direct
Claim
|
|
|
Effective
Time
|
2.1
|
|
Employment
Agreements
|
2.3(i)
|
1
|
Environmental
Claim
|
|
|
Environmental
Law
|
|
|
Environmental
Notice
|
|
|
Environmental
Permit
|
|
|
ERISA
|
|
|
ERISA
Affiliate
|
|
|
Escrow
Agent
|
2.5(a)
|
|
Estimated
Closing Balance
Sheet
|
3.2(a)
|
|
Estimated
Closing Company Net
Cash
|
3.2(a)(ii)
|
|
Estimated
Closing Company Transaction Expenses
|
|
|
Financial
Statements
|
|
|
Fundamental
Representations
|
10.1
|
|
General
Survival
Period
|
|
|
Hazardous
Materials
|
|
|
Indemnified
Person
|
|
|
Indemnifying
Person
|
|
|
Indemnity
Escrow
|
2.5(a)
|
|
Indemnity
Escrow
Agent
|
2.5(a)
|
|
Insurance
Policies
|
|
|
Intellectual
Property
|
|
|
Interim
Balance
Sheet
|
|
|
Interim
Balance Sheet
Date
|
|
|
Interim
Financial
Statements
|
|
|
Leased
Real
Property
|
|
|
Material
Contracts
|
|
|
Material
Customers
|
|
|
Material
Suppliers
|
|
|
Net
Adjustment
Amount
|
|
|
Net
Estimated Adjustment
Amount
|
|
|
Neutral
Accounting
Firm
|
|
|
Non-Disclosure
Agreement
|
|
|
Notice
of
Disagreement
|
|
|
Outside
Date
|
11.1(b)(ii)
|
|
Personal
Property
|
|
|
Post-Closing
Claims
|
7.16
|
|
Post-Closing
Tax
Period
|
|
|
Post-Closing
PPP Adjustment
|
3.4(b)
|
|
PPP
Escrow
|
2.5(b)
|
|
PPP
Escrow
Agreement
|
2.5(b)
|
|
PPP
Forgiveness Advance
|
3.4(a)
|
|
PPP
Lender
|
2.5(b)
|
|
PPP
Loan
|
2.5(b)
|
|
Purchase
Price
|
2
|
Qualified
Benefit
Plan
|
|
|
Real
Property
|
|
|
Related
Party Transactions and
Relationships
|
5.27
|
|
Release
|
|
|
Released
Claims
|
7.8(a)
|
|
Released
Parties
|
7.8(a)
|
|
Releasors
|
7.8(a)
|
|
Resolution
Period
|
|
|
Restricted
Territory
|
|
|
Review
Period
|
|
|
Member
Indemnitees
|
|
|
Members
|
Preamble
|
|
Units
|
Recitals
|
|
Software
|
|
|
Specified
Policies
|
7.16
|
|
Straddle
Period
|
|
|
Systems
|
5.12(i)
|
|
Target
Members’
Equity
|
3.1(g)
|
|
Tax
Claim
|
|
|
Third
Party
Claim
|
|
|
Union
|
|
|
WARN
Act
|
|
|
Year-End
Balance
Sheet
|
|
|
Year-End
Balance Sheet
Date
|
|
|
Year-End
Financial
Statements
|
3
“Action” means
any governmental, judicial, administrative or adversarial
proceeding (public or private), any action, complaint, claim,
lawsuit, legal proceeding, whistleblower complaint, litigation,
arbitration or mediation, any hearing, investigation (internal or
otherwise), audit, probe or inquiry by any Governmental Authority
or any other dispute, including any adversarial proceeding arising
out of this Agreement.
“Affiliate” means, with
respect to any Person, any other Person who, directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The
term “control” (including, with correlative meanings,
the terms “under common control with” and
“controlled by”), as used in the preceding sentence,
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by
contract or otherwise. For purposes of this Agreement, Affiliate
shall not mean Back Brook Masonry, LLC, a New Jersey limited
liability company.
“Business” means
commercial and industrial electrical and telecommunications
contracting services.
“Business
Day” means any day except Saturday, Sunday or any
other day on which commercial banks located in the State of New
York are authorized or required by Law to be closed for
business.
“Cash Balance Pension
Plan” shall mean the B W Electrical Services LLC Cash
Balance Plan.
“Closing Purchase Price”
shall mean (i) the Base Purchase Price plus (ii) the Net Estimated
Adjustment Amount.
“Code” means
the Internal Revenue Code of 1986, as amended.
“Contracts” means
all contracts, purchase orders, leases, deeds, mortgages, licenses,
instruments, notes, undertakings, indentures, joint ventures and
all other agreements, commitments and arrangements, whether written
or oral to which the Company is a party or by which any of its
assets or properties are bound.
“Disclosure Schedule”
means that certain document identified as the Disclosure Schedule,
dated as of the date hereof (as the same may be modified from time
to time in accordance with the terms hereof), delivered by the
Company and the Members to Buyer in connection with this Agreement.
Each Section in the Disclosure Schedule shall be deemed to qualify
only (i) the corresponding Section of this Agreement, (ii) any
other Section of this Agreement to which such disclosure makes
express reference or (iii) any other Section of this Agreement to
the extent the relevance of the information disclosed in such
Section in the Disclosure Schedule to such other Section is readily
apparent on its face. Prior to Closing, Members shall have the
right to update the Disclosure Schedule to the extent information
contained therein or any representation or warranty of Members or
Company becomes untrue, incomplete or inaccurate after the date
hereof. Buyer shall have the right to terminate this Agreement
pursuant to Section
11.1(b) within five (5) days after receipt of such update if
the updated portion or portions of the Disclosure Schedule disclose
any facts and circumstances that would cause a failure of the
Closing Condition set forth in Section 9.2; provided, however, that if (a) Buyer is
not entitled to, or does not timely exercise, such right to
terminate this Agreement, or (b) Buyer consummates the Closing,
Buyer shall, in any such case, be deemed to have accepted such
updated Disclosure Schedule, any such update shall be deemed to
have amended the Disclosure Schedule, to have qualified the
relevant representations and warranties, and to have cured any
breach of any representation or warranty that otherwise might have
existed hereunder by reason of such event or
circumstance.
4
“Encumbrance” means
any charge, claim, community property interest, pledge, condition,
equitable interest, lien (statutory or other), option, security
interest, mortgage, easement, encroachment, right of way, right of
first refusal, or restriction of any kind, including any
restriction on use, voting, transfer, receipt of income or exercise
of any other attribute of ownership. For purposes of this
Agreement, a Person will be deemed to own a property or asset
subject to an Encumbrance if it holds such property or asset
subject to the interest of a vendor or a lessor under any
conditional sale agreement, capital lease, or other title retention
agreement (or any financing lease having substantially the same
economic effect as any of the foregoing) relating to such property
or asset.
“Family”
means, with respect to a particular individual, (a) the individual,
(b) the individual’s spouse and former spouse(s), (c) any
other natural person who is related to the individual or the
individual’s spouse within the second degree, and (d) any
other natural person who resides with such individual.
“GAAP” means
United States generally accepted accounting principles in effect
from time to time.
“Governing Documents”
means with respect to any Person: (a) if a corporation, the
articles or certificate of incorporation and the bylaws; (b) if a
general partnership, the partnership agreement and any statement of
partnership; (c) if a limited partnership, the limited partnership
agreement and the certificate of limited partnership; (d) if a
limited liability company, the articles of organization and
operating agreement; (e) if a trust, the instrument governing the
trust, (f) if another type of Person, any other charter or similar
document adopted or filed in connection with the creation,
formation or organization of the Person; (g) all equity
holders’ agreements, voting agreements, voting trust
agreements, joint venture agreements, registration rights
agreements or other agreements or documents relating to the
organization, management or operation of any Person or relating to
the rights, duties and obligations of the equity holders of any
Person; and (h) any amendment or supplement to any of the
foregoing.
“Governmental
Authority” means any federal, state, local or
foreign government or political subdivision thereof, or any agency
or instrumentality of such government or political subdivision, or
any self-regulated organization or other non-governmental
regulatory authority or quasi-governmental authority (to the extent
that the rules, regulations or orders of such organization or
authority have the force of Law), or any arbitrator, court or
tribunal of competent jurisdiction.
5
“Governmental
Order” means any order, writ, judgment,
injunction, decree, stipulation, determination or award entered by
or with any Governmental Authority.
“Indebtedness”
means the following obligations: (a) all indebtedness or other
obligations of the Company for borrowed money, whether current,
short-term or long-term, secured or unsecured, including all
overdrafts and negative cash balances; (b) all indebtedness of the
Company for the deferred purchase price for purchases of property
or services with respect to which the Company is liable,
contingently or otherwise, as obligor or otherwise (whether
earn-outs, indemnity payments, non-compete payments, consulting
payments, retention bonuses, severance payments or other similar
payments, or otherwise; in each case whether contingent or not and
valued at the maximum amount thereof) except any trade payable
incurred in the Ordinary Course of Business that is treated (in its
entirety) as a current account payable under GAAP; (c) all lease
obligations of the Company under leases that have been or should be
capitalized in accordance with GAAP; (d) the aggregate face amount
of all outstanding letters of credit issued on behalf of the
Company; (e) all obligations of the Company arising under
acceptance facilities; (f) all guaranties, endorsements and other
contingent obligations of the Company to purchase, to provide funds
for payment, to supply funds to invest in any other Person, or
otherwise to assure a creditor against loss; (g) all obligations of
the Company under any interest rate protection, foreign currency
exchange, or other interest or exchange rate swap or hedging
agreement or arrangement, or other derivative product; (h) all
obligations secured by an Encumbrance upon any assets or properties
of the Company; (i) all outstanding or held checks, money orders or
similar instruments of the Company as of the Closing; (j) all
Liabilities of the Company pursuant to any phantom equity plan or
Liabilities with respect stock appreciation or similar rights or
arising from non-qualified deferred compensation arrangements,
plans or policies or other forms of deferred compensation
arrangements; (k) any other Liabilities, contingent or otherwise,
that, in accordance with GAAP, should be classified upon the
balance sheet of the Company as indebtedness; (l) all
“withdrawal liability” of the Company to a
“multiemployer plan” as such terms are defined under
ERISA, (m) all indebtedness referred to in clauses (a) through (l)
above of any Person other than the Company that is guaranteed by
the Company; (n) declared but unpaid distributions; and (o) accrued
and unpaid interest on, and prepayment premiums, penalties or
similar contractual charges arising as a result of the discharge
of, any such foregoing obligation.
“Key Employee” means each
of Xxxxxxx X. Xxxxxxxxx and Xxxxxxxxx Xxxxxxxxx.
“Knowledge of the
Company” or
“Company’s
Knowledge” or any other similar knowledge
qualification, means the knowledge of any of the following persons:
Xxxxxxx X. Xxxxxxxxx, Xxxxxxxxx Xxxxxxxxx, and Xxxxxx X. Xxxxxxxxx.
Any such person shall be deemed to have “knowledge” of
a particular fact or other matter if such person (a) is actually
aware of such fact or other matter or (b) would reasonably be
expected to discover or otherwise become aware of such fact or
other matter in the course of conducting an inquiry concerning the
existence of such fact or other matter, including by making due
inquiry of the applicable personnel who report directly to that
listed individual.
“Law” means (a) any
federal, state, local, municipal, foreign, international,
multinational or other administrative law, constitution, common law
principle, ordinance, code, statute, judgment, injunction, decree,
order, rule, statute or governmental regulation, or “fair
price,” “moratorium,” “control share
acquisition” or other similar anti-takeover statute or
regulation, (b) any binding judicial or administrative
interpretation of any of the foregoing, (c) the terms and
conditions of any agreement relating to the Company with a
Governmental Authority, (d) the terms and conditions of any
certification relating to the Company to any Governmental
Authority, (e) any governmental requirements or restrictions
of any kind, or any rule, regulation or order promulgated
thereunder, (f) any rules, regulations, orders, decrees,
consents, or judgments of any regulatory agency, stock exchange or
similar self-regulatory organization, court or other Person, or
(g) any applicable requirements associated with any
Permits.
6
“Liability” means, with
respect to any Person, any liability or obligation of such Person
of any kind, character or description, whether known or unknown,
absolute or contingent, secured or unsecured, joint or several, due
or to become due, vested or unvested, executory, determined,
determinable or otherwise and whether or not the same is required
to be accrued on the financial statements of such
Person.
“Losses” mean
any and all claims, damages, decline in value, judgements,
Liabilities, losses (including, without limitation, punitive,
exemplary, consequential or indirect damages and liabilities of any
kind), lost profits, penalties, settlement payments, arbitration
awards, taxes and costs and expenses (including, without
limitation, reasonable attorneys’, consultants’ and
experts’ fees and expenses and other costs of defending,
investigating or settling claims or enforcing rights to
indemnification hereunder) and the cost of pursuing any insurance
providers in each case whether or not arising out of Third Party
Claims; provided,
however, that
“Losses” shall not include punitive or exemplary
damages, except in the case of fraud or to the extent actually
awarded to a Governmental Authority or other third
party.
“Material Adverse
Effect” means any development, event, occurrence,
fact, condition or change that is, or could reasonably be expected
to become, individually or in the aggregate, materially adverse to
(a) the business, results of operations, condition (financial
or otherwise), assets or prospects of the Company, taken as a
whole, or (b) the ability of the Members or the Company to
consummate the Transactions on a timely basis; provided, however, that “Material Adverse
Effect” shall not include any event, occurrence, fact,
condition or change, directly or indirectly, arising out of or
attributable to: (i) general economic or political conditions;
(ii) conditions generally affecting the industries in which
the Company operate; (iii) any changes in financial or
securities markets in general; or (iv) acts of war (whether or
not declared), armed hostilities or terrorism, or the escalation or
worsening thereof; provided further, however, that any event,
occurrence, fact, condition or change referred to in clauses
(i) through (iv) immediately above shall be taken into
account in determining whether a Material Adverse Effect has
occurred or could reasonably be expected to occur to the extent
that such event, occurrence, fact, condition or change has a
disproportionate effect on the Company compared to other
participants in the industries in which the Company
operate.
“Ordinary Course of
Business” of a Person means an action taken by such
Person if that action (a) is consistent in nature, scope and
magnitude with the past practices of such Person and is taken in
the ordinary course of the normal, day-to-day operations of such
Person; (b) does not require authorization by the members or
managers (or other similar position) of such Person (or by any
Person or group of Persons exercising similar authority) and does
not require any other separate or special authorization of any
nature; and (c) is similar in nature, scope and magnitude to
actions customarily taken, without any separate or special
authorization, in the ordinary course of the normal, day-to-day
operations of other Persons that are in the same line of business
as such Person. No violation of Law or Contracts shall be deemed in
the Ordinary Course of Business.
7
“Permits” means
all permits, certificates, licenses, approvals, governmental
notifications, franchises, certificates, approvals, exemptions,
classifications, registrations and other similar authorizations
(and applications therefor) from Governmental
Authorities.
“Permitted
Encumbrances” means (a) liens for Taxes not yet
due and payable or being contested in good faith by appropriate
procedures and for which there are adequate accruals or reserves on
the Interim Balance Sheet; (b) mechanics, carriers’,
workmen’s, repairmen’s or other like liens arising or
incurred in the Ordinary Course of Business and that are not
delinquent and which are not, individually or in the aggregate,
material to the business of the Company; (c) easements, rights
of way, zoning ordinances and other similar encumbrances affecting
Real Property which are not, individually or in the aggregate,
material to the business of the Company;
“Person” means
an individual, corporation, partnership, joint venture, limited
liability company, Governmental Authority, unincorporated
organization, trust, association or other entity.
“Related Person” means (a)
with respect to an entity, (i) any Affiliate of such entity, (ii)
each Person that serves as a director, officer, partner, member,
manager, executor, or trustee (or in a similar capacity) of such
entity, (iii) any Person with respect to which such entity serves
as a general partner or a trustee (or in a similar capacity), and
(iv) any Person that would be a Related Person of any individual
described in clause (i) or (ii) pursuant to clause (b) of this
definition or (b) with respect to an individual, (i) each other
member of such individual’s Family, and (ii) any entity with
respect to which such individual or one or more members of such
individual’s Family serves as a director, officer, partner,
member, manager, executor, or trustee (or in a similar
capacity).
“Representative” means,
with respect to any Person, any and all directors, officers,
employees, consultants, financial advisors, counsel, accountants
and other agents of such Person.
“Retainage” means the
portion of the Contract price withheld from the Company pursuant to
the terms of the Contract as set forth on Section 5.9 of the
Disclosure Schedule.
“Subsidiary” means, with
respect to any Person, any other Person of which (a) the
accounts of which would be consolidated with and into those of the
applicable Person in such Person’s consolidated financial
statements if such statements were prepared in accordance with GAAP
as of such date, (b) if a corporation, a majority of the total
voting power of shares of capital stock entitled (without regard to
the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more
of the other Subsidiaries of that Person or a combination thereof,
or (c) if a limited liability company, partnership,
association or other business entity (other than a corporation), a
majority of membership, partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more other Subsidiaries of
that Person or a combination thereof and, for this purpose, a
Person or Persons owns a majority ownership interest in such a
business entity (other than a corporation) if such Person or
Persons shall be allocated a majority of such business
entity’s gains or losses or shall be or control any managing
director or general partner of such business entity (other than a
corporation).
8
“Tax
Return” means any return, declaration, report,
claim for refund, information return or statement or other document
relating to Taxes, including any schedule or attachment thereto,
and including any amendment thereof.
“Taxes” means
all federal, state, local, foreign and other income, gross
receipts, sales, use, production, ad valorem, transfer, franchise,
registration, profits, license, lease, service, service use,
withholding, payroll, employment, unemployment, estimated, excise,
severance, environmental, stamp, occupation, premium, property
(real or personal), real property gains, windfall profits, customs,
duties or other taxes, fees, assessments or charges of any kind
whatsoever, together with any interest, additions or penalties with
respect thereto and any interest in respect of such additions or
penalties.
“Transaction Documents”
means, with respect to a party, all agreements, certificates and
other instruments to be delivered by such party in connection with
this Agreement.
“Transactions” means the
transactions contemplated by this Agreement and the Transaction
Documents.
9
