ASSET PURCHASE AGREEMENT
BY AND AMONG
FARMPRO, INC.,
THE GSI GROUP, INC.,
AND
HOG SLAT, INC.
iii
I. DEFINITIONS 1
II. BASIC TRANSACTION. 1
2.1 PURCHASE AND SALE OF ASSETS 1
2.2 ASSUMPTION OF LIABILITIES 1
2.3 PURCHASE PRICE. 1
2.4 THE CLOSING 1
2.5 DELIVERIES AT THE CLOSING 1
2.6 ALLOCATION 1
III. REPRESENTATIONS AND WARRANTIES OF THE SELLER 1
3.1 AUTHORIZATION 1
3.2 ORGANIZATION OF THE SELLER 1
3.3 BROKERS' FEES 1
3.4 TAX MATTERS 1
3.5 TITLE TO ASSETS 1
3.6 NONCONTRAVENTION. 1
3.7 EMPLOYEE BENEFITS. 1
3.8 ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS. 1
3.9 FINANCIAL STATEMENTS 1
3.10 UNDISCLOSED LIABILITIES 1
3.11 EVENTS SUBSEQUENT TO MOST RECENT FISCAL MONTH END 1
3.12 INVENTORY 1
3.13 LEGAL COMPLIANCE 1
3.14 LITIGATION 1
3.15 PERMITS 1
3.16 INTELLECTUAL PROPERTY. 1
3.17 TANGIBLE ASSETS 1
3.18 REAL PROPERTY. 1
3.19 CONTRACTS. 1
3.20 EMPLOYEES 1
3.21 NO OTHER REPRESENTATIONS 1
IV. REPRESENTATIONS AND WARRANTIES OF BUYER 1
4.1 ORGANIZATION OF THE BUYER 1
4.2 AUTHORIZATION OF TRANSACTION 1
4.3 NONCONTRAVENTION 1
4.4 BROKERS' FEES 1
V. PRE CLOSING COVENANTS 1
5.1 GENERAL 1
5.2 NOTICES AND CONSENTS 1
5.3 OPERATION OF BUSINESS 1
5.4 ACCESS 1
5.5 NOTICE OF DEVELOPMENTS 1
5.6 NOTICE OF ASSUMED CONTRACTS 1
5.7 SALES TAXES 1
5.8 BULK SALES 1
VI. CONDITIONS TO OBLIGATION TO CLOSE. 1
6.1 CONDITIONS TO OBLIGATION OF THE BUYER 1
6.2 CONDITIONS TO OBLIGATION OF THE SELLER 1
VII. POST-CLOSING COVENANTS 1
7.1 GENERAL 1
7.2 RESTRICTIVE COVENANTS. 1
7.3 COLLECTIONS OF ACCOUNTS RECEIVABLE 1
7.4 WORK IN PROGRESS 1
7.5 SATISFACTION OF LIABILITIES 1
7.6 INSPECTION OF RECORDS 1
VIII. REMEDIES FOR BREACHES OF THIS AGREEMENT. 1
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES 1
8.2 INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER. 1
8.3 INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLER. 1
8.4 MATTERS INVOLVING THIRD PARTIES. 1
8.5 DETERMINATION OF ADVERSE CONSEQUENCES 1
8.6 SETOFF 1
8.7 EXCLUSIVE REMEDY 1
IX. MISCELLANEOUS. 1
9.1 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS 1
9.2 NO THIRD-PARTY BENEFICIARIES 1
9.3 ENTIRE AGREEMENT 1
9.4 SUCCESSION AND ASSIGNMENT 1
9.5 COUNTERPARTS 1
9.6 HEADINGS 1
9.7 NOTICES 1
9.8 GOVERNING LAW 1
9.9 AMENDMENTS AND WAIVERS 1
9.10 SEVERABILITY 1
9.11 EXPENSES 1
9.12 CONSTRUCTION 1
9.13 INCORPORATION OF EXHIBITS AND SCHEDULES 1
9.14 TIME OF THE ESSENCE 1
EXHIBITS 1
EXHIBIT 1-DEFINITIONS 1
EXHIBIT 2.1-EXCLUDED ASSETS 1
EXHIBIT 2.5(III)(A)-ASSIGNMENT AND ASSUMPTION 1
EXHIBIT 2.6-ALLOCATION SCHEDULE 1
EXHIBIT 2.6(C)(6) - ▇▇▇▇ OF SALE 1
EXHIBIT 3.9-FINANCIAL STATEMENTS 1
19
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is entered this ____ day
of December, 2004, by and among FARMPRO, INC. a corporation incorporated under
the laws of Delaware (the "Seller"), the GSI GROUP, INC., the sole stockholder
of Seller, a Delaware corporation ("GSI") and HOG SLAT, INC. a corporation
incorporated under the laws of _____________________ (the "Buyer"). The Buyer
and the Seller are referred to collectively herein as the "Parties."
RECITALS:
WHEREAS, this Agreement contemplates a transaction in which the Buyer will
purchase substantially all of the assets of the Seller's Business in return for
the consideration described below;
WHEREAS, the Seller desires to sell, transfer and assign to Buyer, and Buyer
desires to purchase and acquire from Seller, such assets, upon the terms and
subject to the conditions hereinafter set forth;
WHEREAS, the Parties hereto desire to set forth certain agreements made as an
inducement to the execution and delivery of this Agreement;
NOW THEREFORE, in consideration of these premises and the agreements herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the Parties, intending to be
legally bound, agree as follows:
I. DEFINITIONS
. Unless context otherwise requires, capitalized terms shall have the
meanings ascribed to them in EXHIBIT 1.
II. BASIC TRANSACTION.
2.1 PURCHASE AND SALE OF ASSETS
. On and subject to the terms and conditions of this Agreement, the Buyer
agrees to purchase from the Seller, and the Seller agrees to sell, transfer,
convey, and deliver to the Buyer, all of the Acquired Assets at the Closing for
the consideration specified below in this Section II. Notwithstanding anything
else contained herein, the Acquired Assets shall not include any of the assets
or rights listed and described on EXHIBIT 2.1 (the "Excluded Assets")
2.2 ASSUMPTION OF LIABILITIES
. The Buyer will assume no liabilities of Seller.
2.3 PURCHASE PRICE.
(a) The Buyer agrees to pay to the Seller purchase consideration in an
amount as calculated below ("Purchase Price"):
(i) Inventory. An amount equal to the book value of inventory, except
for the value of that inventory included on Exhibit 2.1 as Excluded Assets.
(ii) Accounts Receivable. An amount equal to the face value of the Seller's
accounts receivable for sales less than 60 days prior to the date of Closing.
(iii) Fixed Assets. An amount equal to the book value of all fixed assets
(other than leasehold improvements having a value of approximately $90,000
detailed on Exhibit 2.3(a)(iii)).
(iv) Work in Progress. For all contracts in progress, an amount equal to
the costs incurred to date, net of any ▇▇▇▇▇▇▇▇.
(b) From the amount calculated in Section F, the following amounts
shall be deducted:
(i) An amount for warranty accrual equal to $__________ [3/4% of the
past 12 months' construction ▇▇▇▇▇▇▇▇]; and
(ii) an amount for Iowa sales tax accrual equal to $43,000 which represents
Seller's portion of Iowa sales tax audit that is in litigation from 1997-1999.
(c) The Buyer will pay the Purchase Price as follows:
(i) $250,000 of the Purchase price (the "Holdback") will be delivered
to an escrow agent mutually agreed upon by the Parties (the "Escrow Agent").
The Holdback, together with accumulated interest thereon, shall, subject to the
Escrow Agreement and to setoff in accordance with Article VIII, be disbursed to
the Seller on the twelfth (12th) month anniversary date of the Closing.
(ii) The remainder of the Purchase Price shall be paid to Buyer at the
Closing by wire transfer or delivery of other immediately available funds.
2.4 THE CLOSING
. The closing of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of _______________________,
commencing at 9:00 a.m. local time on the later of (i) December __, 2004; or
(ii) the second business day following the satisfaction or waiver of all
conditions to the obligations of the Parties to consummate the transactions
contemplated hereby (other than conditions with respect to actions the
respective Parties will take at the Closing itself) or such other date as the
Parties may mutually determine (the "Closing Date").
2.5 DELIVERIES AT THE CLOSING
. At the Closing, (i) the Seller will deliver to the Buyer the various
certificates, instruments, and documents referred to in Section 6.1 below; (ii)
the Buyer will deliver to the Seller the various certificates, instruments, and
documents referred to in Section 6.2 below; (iii) the Seller will execute, have
acknowledged by a notary public (if appropriate), and deliver (or cause to be
delivered) to the Buyer (A) an assignment and assumption agreement in the form
attached hereto as Exhibit 2.5(iii)(A); (B) an assignment of intellectual
property in the form of Exhibit 2.5(iii)(B); (C) a ▇▇▇▇ of sale in the form of
Exhibit 2.5 (iii)(c); (iv) the Buyer will execute, have acknowledged by a notary
public (if appropriate), and deliver to the Seller counterparts of the documents
referenced above (to the extent that execution by the Buyer is required); and
(v) the Buyer will deliver to the Seller and the Escrow Agent the Purchase
Price, as contemplated above.
2.6 ALLOCATION
. The Parties have prepared the allocation schedule attached hereto as
Exhibit 2.6 and agree that the Parties shall allocate the Purchase Price (and
all other capitalizable costs) among the Acquired Assets for all purposes
(including financial accounting and tax purposes) in accordance with Exhibit
2.6.
III. REPRESENTATIONS AND WARRANTIES OF THE SELLER
. The Seller represents and warrants to the Buyer that the statements
contained in this Section III are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then), except as set forth in the disclosure schedule accompanying this
Agreement (the "Disclosure Schedule"). The Disclosure Schedule will be arranged
in paragraphs corresponding to the lettered and numbered paragraphs contained in
this Section III.
3.1 AUTHORIZATION
. The Seller has full power and authority (including full corporate power
and authority) to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of the Seller, enforceable in accordance with its terms and
conditions. This Agreement constitutes the legal, valid and binding agreement
of the Seller, enforceable in accordance with its terms, except that such
enforcement may be subject to (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting or relating to enforcement of
creditors' rights generally, and (ii) general principles of equity. Without
limiting the generality of the foregoing, the Seller's board of directors have
duly authorized the execution, delivery, and performance of this Agreement by
the Seller.
3.2 ORGANIZATION OF THE SELLER
. The Seller is a corporation duly organized, validly existing, and in
good standing under the Laws of the jurisdiction of its incorporation, with all
requisite corporate power and authority to conduct its business as it is now
being conducted, to own or use the properties and assets that it purports to own
or use, and to perform all its obligations under the agreements and instruments
to which it is a party or by which it is bound.
3.3 BROKERS' FEES
. The Seller has no Liability to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement for which the Buyer could become liable or obligated.
3.4 TAX MATTERS
. The Seller has filed all Tax Returns that it was required to file. All
such Tax Returns were correct and complete in all material respects. All Taxes
payable in connection with such Tax Returns have been paid or will be paid by
Seller. The Seller has withheld and paid all Taxes required to have been
withheld and paid in connection with amounts paid or owing to any Employee.
3.5 TITLE TO ASSETS
. Except for properties and assets disposed of in the Ordinary Course of
Business since the Most Recent Fiscal Year End, the Seller has good and
marketable title to all of the Acquired Assets, and as of the Closing Date, the
Acquired Assets will be free and clear of any Security Interest or restriction
on transfer.
3.6 NONCONTRAVENTION.
(a) Noncontravention. Except as set forth in Section 3.6(a) of the
Disclosure Schedule, neither the execution and the delivery of this Agreement,
nor the consummation of the transactions contemplated hereby (including the
assignments and assumptions referred to in Section 2.5 above), will violate any
Law or Order to which the Seller is subject or any provision of the charter or
bylaws of the Seller.
(b) Notices and Consents. Except as set forth in Section 3.6(b) of the
Disclosure Schedule, the Seller does not need to give any notice to, make any
filing with, or obtain any authorization, consent, or approval of any Person or
Governmental Authority in order for the Parties to consummate the transactions
contemplated by this Agreement (including the assignments and assumptions
referred to in Section 2.5 above).
3.7 EMPLOYEE BENEFITS.
(a) Details of Plans. The Seller neither maintains nor contributes to
any Employee Benefit Plans.
3.8 ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS.
(a) Compliance. With respect to the real property described in Section
3.18(b) of the Disclosure Schedule, Seller has complied and is in compliance
with all Environmental, Health, and Safety Requirements.
(b) Environmental Permits. With respect to the real property described in
Section 3.18(b) of the Disclosure Schedule, the Seller has obtained and complied
with, and is in compliance with, all permits, licenses and other authorizations
that are required pursuant to Environmental, Health, and Safety Requirements for
the occupation of its facilities and the operation of its business on such
property. A list of all such permits, licenses and other authorizations is set
forth on Section 3.18(b) of the Disclosure Schedule.
(c) Notice of Violation. The Seller has not received any written notice
regarding any violation of Environmental, Health, and Safety Requirements with
respect to the real property described in Section 3.18(b) of the Disclosure
Schedule, nor any Liabilities, including any investigatory, remedial or
corrective obligations, relating to the real property described in Section
3.18(b) of the Disclosure Schedule and Environmental, Health, and Safety
Requirements.
(d) Properties. Except as shown in Section 3.8(d) of the Disclosure
Schedule, none of the following exists at the real property described in Section
3.18(b) of the Disclosure Schedule: (1) underground storage tanks, (2)
asbestos-containing material in any form or condition, (3) materials or
equipment containing polychlorinated biphenyls, or (4) landfills, surface
impoundments, or disposal areas.
(e) Waste. With respect to the real property described in Section 3.18(b) of
the Disclosure Schedule, Seller has not treated, stored, disposed of or released
any hazardous substance in a manner that has given or would give rise to
liabilities, including any Liability for response costs, corrective action
costs, personal injury, property damage, natural resources damages or attorney
fees, pursuant to the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), the Solid Waste Disposal Act, as
amended ("SWDA") or any other Environmental, Health, and Safety Requirements.
3.9 FINANCIAL STATEMENTS
. Seller has previously delivered to Buyer the following financial
statements (collectively the "Financial Statements"): (i) balance sheets and
statements of income as of and for the last three fiscal years ended as of
December 31 (with the last fiscal year end being the "Most Recent Fiscal Year
End") for the Seller with respect to the Business; and (ii) balance sheets and
statements of income (the "Most Recent Financial Statements") as of and for the
____ months ended ____, 2004 (the "Most Recent Fiscal Month End") for the Seller
with respect to the Business. The Financial Statements [have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
covered thereby], present fairly in all material respects (with respect to the
Business) the financial condition of the Seller as of such dates and the results
of operations of the Seller for such periods; provided, however, that the
Financial Statements are subject to normal year-end and audit adjustments, and
lack footnotes and other presentation items.
3.10 UNDISCLOSED LIABILITIES
. In connection with the Business, the Seller does not have any
Liabilities, except for (i) Liabilities set forth on the balance sheet dated as
of the Most Recent Fiscal Month End and (ii) Liabilities which have arisen after
the Most Recent Fiscal Month End in the Ordinary Course of Business (none of
which results from, arises out of, relates to, is in the nature of, or was
caused by any breach of contract, breach of warranty, tort, infringement, or
violation of Law).
3.11 EVENTS SUBSEQUENT TO MOST RECENT FISCAL MONTH END
. Since the Most Recent Fiscal Month End, there has not been any material
adverse change in the business, financial condition, operations, or results of
operations of the Seller.
3.12 INVENTORY
. The inventory of the Seller is reflected properly on its books and
records [in accordance with GAAP] and consists of supplies, raw materials, and
work-in-process, and finished goods. Subject to any inventory writedown or
reserve set forth on the face of the balance sheet dated as of the Most Recent
Fiscal Year End as adjusted for the passage of time through the Closing Date in
accordance with the past custom and practice of the Seller and other than
inventory classified as Excluded Assets, there is a not a material portion of
such inventory that is not merchantable, not fit for the purpose for which it
was procured or manufactured, obsolete, damaged, or defective.
3.13 LEGAL COMPLIANCE
. Except as would not have a material adverse effect on the Buyer, the
Seller has, with respect to the Business, complied with all applicable Laws and
no Proceeding or notice has been filed or commenced against Seller alleging any
failure so to comply.
3.14 LITIGATION
. With respect to the Business, Seller is not (i) subject to any
outstanding Order or (ii) a party or, to the knowledge of the Seller, threatened
to be made a party to any Proceeding, except as disclosed on Section 3.14 of the
Disclosure Schedule.
3.15 PERMITS
. All Permits that are held by the Seller in connection with the Business
are listed in Section 3.15 of the Disclosure Schedule and are in full force and
effect. To Seller's Knowledge, there are no violations of any such Permit; and
no Proceeding is pending or threatened to revoke or limit any such Permit.
3.16 INTELLECTUAL PROPERTY.
(a) Section 3.16 of the Disclosure Schedule attached hereto sets forth
all (i) registered trademarks, service marks, trade names, trade dress and the
like (collectively with the associated goodwill of each, the "Trademarks"),
together with information regarding any pending applications to register any
such rights; and (ii) registrations of and applications to register copyrights
which are owned by Seller (collectively with any know-how and trade secrets that
are material to the Business, the "Intellectual Property").
(b) Except as indicated in Section 3.16 of the Disclosure Schedule, no
material claim by any person or entity contesting the validity or ownership of
any of the Intellectual Property is pending and, to the Knowledge of Seller, the
use of the Intellectual Property and the conduct of the Business do not now
infringe upon, misappropriate or otherwise violate any proprietary rights of any
Person, nor to the Knowledge of Seller, is any of such Intellectual Property
being infringed upon, misappropriated or otherwise violated.
3.17 TANGIBLE ASSETS
. Each of the tangible Acquired Assets is free from substantial defects,
has been maintained in accordance with the Seller's normal practice, and is in
operating condition (subject to normal wear and tear).
3.18 REAL PROPERTY.
(a) Owned Real Property. The Seller owns no real property.
(b) Leased Property. The Seller leases the real property that is used
solely and directly in connection with the Business as provided on Section
3.19(a) of the Disclosure Schedule. With respect to each such parcel of leased
real property: (i) there are no leases, subleases, licenses, concessions, or
other agreements granting to any other party or parties the right of use or
occupancy of any portion of the leased premises; (ii) there are no parties
(other than the Seller) in possession of the leased premises; (iii) all
facilities located on the leased premises are supplied with utilities and other
services necessary for the operation of such facilities, including electricity,
water, telephone, sanitary sewer, and storm sewer; and (iv) each of the leased
premises abuts on and has direct vehicular access to a public road, or has
access to a public road via a permanent, irrevocable, appurtenant easement
benefiting the parcel of real property, and access to the property is provided
by paved public right-of-way with adequate curb cuts available.
3.19 CONTRACTS.
(a) Types of Contracts. Section 3.19(a) of the Disclosure Schedule
lists the following types of contracts to which the Seller is a party and which
are solely and directly related to the Business: (i) any agreement (or group of
related agreements) for the lease of personal property to or from any Person
providing for lease payments in excess of $50,000 per annum; (ii) any agreement
(or group of related agreements) for the purchase or sale of raw materials,
commodities, supplies, products, or other personal property, or for the
furnishing or receipt of services, the performance of which will extend over a
period of more than 6 months or involve consideration in excess of $50,000;
(iii) any agreement concerning confidentiality or noncompetition; (iv) any
agreement for the employment of any individual on a full-time, part-time,
consulting, or other basis providing annual compensation in excess of $50,000 or
providing severance benefits; and (v) any agreement under which it has advanced
or loaned any amount to any of its employees outside the Ordinary Course of
Business.
(b) Status of Contracts. The Seller has delivered to the Buyer a correct
and complete copy of each agreement listed in Section 3.19(a) of the Disclosure
Schedule. With respect to each such agreement: (i) the agreement is legal,
valid, binding, enforceable, and in full force and effect; (ii) Seller is not in
breach or default; and (iii) no party has repudiated in writing any provision of
the agreement.
3.20 EMPLOYEES
. A list of Seller's salaried employees that work in connection with the
Business (the "Employees") is attached hereto as Section 3.20 of the Disclosure
Schedule. Included within such list is a list of each such Employee's (i)
current rate of pay; (ii) gross compensation paid to such Employee during the
last full calendar year; (iii) tenure with the Seller; and (iv) job title or
description. Except for those Employees that are subject to contracts described
in Section 3.20 of the Disclosure Schedule, all of the Employees are terminable
at will. To the Knowledge of the Seller, no executive, key employee, or group
of employees has any plans to terminate employment with the Seller prior to the
Closing. In connection with the Business and except as shown on Section 3.20 of
the Disclosure Schedule, the Seller is not a party to nor bound by any
collective bargaining agreement, nor has the Seller experienced any strikes,
grievances, claims of unfair labor practices, or other collective bargaining
disputes. The Seller has not committed any unfair labor practice. To the
Seller's Knowledge, there is no organizational effort presently being made or
threatened by or on behalf of any labor union with respect to employees of the
Seller.
3.21 NO OTHER REPRESENTATIONS
. Except as expressly set forth in this Article III, the Seller makes no
representation or warranty, express or implied, at law or in equity, in respect
of any of its assets (including, without limitation, the Acquired Assets),
Liabilities or operations, including, without limitation, with respect to
merchantability or fitness for any particular purpose, and any such other
representations or warranties are hereby expressly disclaimed. Buyer hereby
acknowledges and agrees that, except to the extent specifically set forth in
this Article III, the Buyer is purchasing the Acquired Assets on an "as-is,
where-is" basis.
IV. REPRESENTATIONS AND WARRANTIES OF BUYER
. Buyer represents and warrants to the Seller that the statements
contained in this Article IV are correct and complete as of the date of this
Agreement and will be correct and complete as of the Closing Date (as though
made then).
4.1 ORGANIZATION OF THE BUYER
. The Buyer is a corporation duly organized, validly existing, and in good
standing under the Laws of the jurisdiction of its incorporation, with all
requisite corporate power and authority to conduct its business as it is now
being conducted, to own or use the properties and assets that it purports to own
or use, and to perform all its obligations under the agreements and instruments
to which it is a party or by which it is bound.
4.2 AUTHORIZATION OF TRANSACTION
. The Buyer has full power and authority (including full corporate power
and authority) to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement constitutes the valid and legally binding
obligation of the Buyer, enforceable in accordance with its terms and
conditions, except that such enforcement may be subject to (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting or
relating to enforcement of creditors' rights generally, and (ii) general
principles of equity.
4.3 NONCONTRAVENTION
. To the Knowledge of the Buyer, neither the execution and the delivery of
this Agreement, nor the consummation of the transactions contemplated hereby,
will violate any constitution, statute, regulation, rule, injunction, judgment,
Order, decree, ruling, charge, or other restriction of any Governmental Agency
to which the Buyer is subject or any provision of the charter or bylaws of the
Buyer.
4.4 BROKERS' FEES
. The Buyer has no Liability to pay any fees or commissions to any broker,
finder, or agent with respect to the transactions contemplated by this Agreement
for which the Seller could become liable or obligated.
V. PRE CLOSING COVENANTS
. The Parties agree as follows with respect to the period between the
execution of this Agreement and the Closing.
5.1 GENERAL
. Each of the Parties will use its [best efforts] to take all action and
to do all things necessary, proper, or advisable in order to consummate and make
effective the transactions contemplated by this Agreement (including
satisfaction, but not waiver, of the closing conditions set forth in Article VI
below).
5.2 NOTICES AND CONSENTS
. The Seller will give any notices to third parties, and the Seller will
use its best efforts to obtain all third party consents in connection with the
matters referred to in the agreement referred to in Section 2.5(III)(A) above.
5.3 OPERATION OF BUSINESS
. In connection with the Business, the Seller will not engage in any
practice, take any action, or enter into any transaction outside the Ordinary
Course of Business. Without limiting the generality of the foregoing, the Seller
will not engage in any practice, take any action, or enter into any transaction
that would result in a breach of Section 3.11 above.
5.4 ACCESS
. The Seller will permit representatives of the Buyer to have access to
all premises, properties, personnel, books, records (including Tax records),
contracts, and documents related directly and solely to the Business.
5.5 NOTICE OF DEVELOPMENTS
. Seller will give prompt written notice to the Buyer of any material
adverse development causing a breach of any of its representations and
warranties in Section III above and such notice shall be deemed to amend or
supplement the Disclosure Schedule or to prevent or cure any misrepresentation,
breach of warranty, or breach of covenant.
5.6 NOTICE OF ASSUMED CONTRACTS
. By December ____, 2004, the Buyer shall send notice to the Seller
indicating which of the agreements listed on Section 3.19(a) of the Disclosure
Schedule the Buyer intends to assume (the "Assumed Contracts").
5.7 SALES TAXES
. Buyer and Seller each agree to deliver to the other party (or to such
governmental or taxing authority as the other Party reasonable directs) any form
of document that may be required or reasonably requested in order to obtain an
exemption with respect to any federal, state, local or other, sales, use or
other transfer taxes that may otherwise be required to be paid on the transfer
of the Acquired Assets or that may otherwise be due with respect to such
transfer, promptly upon the earlier of (i) reasonable demand by the other Party
or (ii) learning that such form or document is required. If any Taxes, fees, or
duties are payable in connection with the transfer of any of the Acquired Assets
hereunder (including recording fees, filing fees, licensing fees, and sales
taxes), Buyer shall be solely responsible therefor and shall hold Seller
harmless therefrom.
5.8 BULK SALES
. Buyer hereby agrees to waive compliance by Seller with the provisions of
any applicable bulk sales Law; provided, however, that Seller agrees to pay and
discharge when due or to contest or litigate all claims of creditors which are
asserted against Buyer or the Acquired Assets by reason of such noncompliance
(other than with respect to the Assumed Liabilities), to indemnify, defend and
hold harmless Buyer from and against any and all such claims in the manner
provided in Article VIII hereof, and to take promptly all necessary action to
remove any Security Interest which is placed on the Acquired Assets by reason of
such noncompliance.
VI. CONDITIONS TO OBLIGATION TO CLOSE.
6.1 CONDITIONS TO OBLIGATION OF THE BUYER
. The obligation of the Buyer to consummate the transactions to be
performed by it in connection with the Closing is subject to satisfaction of the
following conditions:
(i) the Seller shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing, except for
those covenants that are qualified with respect to materiality, which shall be
complied with in all respects; and
(ii) the representations and warranties set forth in Article III above shall
be true and correct in all material respects at and as of the Closing Date,
except for those representations that are qualified with respect to materiality,
which shall be true and correct in all respects; and
(iii) the Seller shall have procured all of the third party consents
specified in Section 5.2 above; and
(iv) no Proceeding shall be pending or threatened before any Governmental
Authority or arbitral body wherein an unfavorable Order would prevent
consummation of any of the transactions contemplated by this Agreement; and
(v) the Seller shall have delivered to the Buyer a certificate to the effect
that each of the conditions specified above in Section 6.1(ii)-(iv) is satisfied
in all respects.
The Buyer may waive any condition specified in this Section 6.1 by
providing written notice of such waiver to the Seller at or prior to the
Closing.
6.2 CONDITIONS TO OBLIGATION OF THE SELLER
. The obligation of the Seller to consummate the transactions to be
performed by it in connection with the Closing is subject to satisfaction of the
following conditions:
(i) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing, except for
those covenants that are qualified with respect to materiality, which shall be
complied with in all respects; and
(ii) the representations and warranties set forth in Article IV above shall
be true and correct in all material respects at and as of the Closing Date,
except for those representations that are qualified with respect to materiality,
which shall be true and correct in all respects; and
(iii) no Proceeding shall be pending before any Governmental Authority or
arbitral body wherein an unfavorable Order would prevent consummation of any of
the transactions contemplated by this Agreement; and
(iv) the Buyer shall have delivered to the Seller a certificate to the
effect that each of the conditions specified above in Sections 6.2(ii)-6.2(iii)
is satisfied in all respects.
The Seller may waive any condition specified in this Section 6.2 by jointly
providing written notice of such waiver to the Buyer at or prior to the Closing.
VII. POST-CLOSING COVENANTS
. The covenants contained in this Article VII shall govern the period
following the Closing.
7.1 GENERAL
. In case at any time after the Closing any further action is necessary or
desirable to carry out the purposes of this Agreement, the Parties will take
such further action (including the execution and delivery of such further
instruments and documents) as any other Party may request, all the sole cost and
expense of the requesting Party (unless the requesting Party is entitled to
indemnification therefor under Article VIII below).
7.2 RESTRICTIVE COVENANTS.
(a) Non-Compete. GSI, due to its status as the sole stockholder of
Seller and as an inducement to Buyer to enter into this Agreement agrees not to
create or otherwise organize a new dealer that sells equipment that is the same
as or competitive with equipment sold by Seller or Buyer within 50 miles of
Guymon, Oklahoma or Decatur, Iowa for a period of two (2) years after the date
hereof. Further, other than with regard to credit extended pursuant to normal
industry practices, GSI shall not invest in, guaranty the debt of or provide
other financial support to any dealers that sell equipment that is the same as
or otherwise competitive with that equipment sold by Seller or Buyer for a two
(2) year period beginning on the Closing. The foregoing restrictions shall only
remain in force while Buyer is in compliance with its current or future supply
and other agreements with GSI.
(b) Procedures. If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Section 7.2 is invalid or
unenforceable, the Parties agree that the court making the determination of
invalidity or unenforceability shall have the power to reduce the scope,
duration, or area of the term or provision, to delete specific words or phrases,
or to replace any invalid or unenforceable term or provision with a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this Agreement
shall be enforceable as so modified after the expiration of the time within
which the judgment may be appealed. The period of time applicable to any
covenant in this Section 7.2 will be extended by the duration of any violation
of such covenant.
7.3 COLLECTIONS OF ACCOUNTS RECEIVABLE
. To the extent any accounts receivable remain uncollected more than 90
days after the date they are due and with respect to which Buyer has used
commercially reasonable efforts to collect such amounts, Seller shall promptly
repurchase such accounts receivable from Buyer. Seller will pay Buyer an amount
equal to 5% of the amounts collected by Buyer for all accounts receivable
purchased by Buyer hereunder. To the extent Buyer collects any accounts
receivables purchased by Seller or Seller collects any accounts receivable that
are owned by Buyer, each shall promptly remit such funds to the other party.
7.4 WORK IN PROGRESS
.
(a) If any contracts for work in progress, the payment for which was
governed by Section 2.3(a)(iv) hereof, sought to be assigned by Seller to Buyer
are not assignable (the "Unassignable Contracts"), Buyer will complete such
Unassignable Contracts on behalf of Seller and ▇▇▇▇ Seller for costs incurred by
Buyer. Seller shall pay such amounts within sixty (60) days after receipt of
such invoices. After Closing, Buyer shall be entitled to retain 20% of the
closed out margin [NEED TO DEFINE] on all such Unassignable Contracts by it and
shall promptly remit the remainder to Seller.
(b) If the parties jointly agree that, as of the Closing, any Unassignable
Contract is not profitable, then such Unassignable Contracts shall be canceled
or re-negotiated to the extent possible. If such Unassignable Contracts are
renegotiated either by or with Buyer's cooperation, then such Unassignable
Contracts would become solely the responsibility of the Buyer and Seller would
retain no liability or rights to payment with respect thereto going forward.
Seller will indemnify Buyer pursuant to Article VIII hereof for any Unassignable
Contracts that are in progress or can't be renegotiated but lose money. Buyer
and Seller will mutually agree to the identity of such jobs.
7.5 SATISFACTION OF LIABILITIES
. The Buyer shall have no responsibility and the Seller shall be solely
responsible for the satisfaction of all Liabilities of the Seller other than any
Assumed Liabilities; provided, however, that such satisfaction may occur in the
Ordinary Course of Business; and, provided, further, that the Seller shall have
no obligation, as a result of this Agreement, to satisfy any Liability that the
Seller is disputing in good faith.
7.6 INSPECTION OF RECORDS
. Each Party shall retain and make its books and records available for
inspection by the any other Party, or by its duly authorized representatives,
for reasonable business purposes at reasonable times during normal business
hours, for a two (2) year period after the Closing Date, with respect to all
transactions relating to the Closing and the Acquired Assets; provided, however,
that the execution of a confidentiality agreement may be a pre-condition to the
examination of any such records.
VIII. REMEDIES FOR BREACHES OF THIS AGREEMENT.
8.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
. All of the representations and warranties of the Seller contained in
Sections 3.1 through 3.21 of this Agreement shall survive the Closing (unless
the damaged Party knew or had reason to know of any misrepresentation or breach
of warranty at the time of Closing) and continue in full force and effect for a
period thereafter of twelve (12) months.
8.2 INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE BUYER.
(a) Breach of Agreement. If Seller breaches any of its
representations, warranties, and covenants contained in this Agreement, and, if
there is an applicable survival period pursuant Section 8.1 above, provided that
the Buyer makes a written claim for indemnification against the Seller pursuant
to Section 9.7 below within such survival period, then the Seller agrees to
indemnify the Buyer from and against any Adverse Consequences the Buyer shall
suffer through and after the date of the claim for indemnification (but
excluding any Adverse Consequences the Buyer shall suffer after the end of any
applicable survival period) caused proximately by the breach; provided, however,
that the Seller shall not have any obligation to indemnify the Buyer from and
against any Adverse Consequences caused by the breach of any representation or
warranty of the Seller: (A) until the Buyer has suffered Adverse Consequences by
reason of all such breaches in excess of a $20,000 aggregate deductible (the
"Deductible") (after which point the Seller will be obligated only to indemnify
the Buyer from and against further such Adverse Consequences) or thereafter (B)
to the extent the Adverse Consequences the Buyer has suffered by reason of all
such breaches exceeds a $250,000 aggregate ceiling (after which point the Seller
will have no obligation to indemnify the Buyer from and against further such
Adverse Consequences).
(b) Liabilities. Seller agrees to indemnify the Buyer from and against any
Adverse Consequences the Buyer shall suffer caused proximately by any Liability
of the Seller (including any Liability of the Seller that becomes a Liability of
the Buyer under any bulk transfer Law of any jurisdiction, under any common law
doctrine of de facto merger or successor liability, under Environmental, Health,
and Safety Requirements, or otherwise by operation of Law).
8.3 INDEMNIFICATION PROVISIONS FOR BENEFIT OF THE SELLER.
(a) Breach of Agreement. If Buyer breaches any of its
representations, warranties, and covenants contained in this Agreement, and, if
there is an applicable survival period pursuant Section 8.1 above, provided that
the Seller makes a written claim for indemnification against the Buyer pursuant
to Section 9.7 below within such survival period, then the Buyer agrees to
indemnify the Seller from and against any Adverse Consequences the Seller shall
suffer through and after the date of the claim for indemnification (but
excluding any Adverse Consequences the Seller shall suffer after the end of any
applicable survival period) caused proximately by the breach.
8.4 MATTERS INVOLVING THIRD PARTIES.
(a) Third Party Claims. If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim") which
may give rise to a claim for indemnification against any other Party (the
"Indemnifying Party") under this Article VIII, then the Indemnified Party shall
promptly (and in any event within five business days after receiving notice of
the Third Party Claim) notify the Indemnifying Party thereof in writing.
(b) Indemnifying Party. The Indemnifying Party will have the right at any
time to assume and thereafter conduct the defense of the Third Party Claim with
counsel of his or its choice; provided, however, that the Indemnifying Party
will not consent to the entry of any judgment or enter into any settlement with
respect to the Third Party Claim without the prior written consent of the
Indemnified Party (not to be withheld unreasonably) unless the judgment or
proposed settlement involves only the payment of money damages and does not
impose an injunction or other equitable relief upon the Indemnified Party.
(c) Indemnified Party. Unless and until an Indemnifying Party assumes the
defense of the Third Party Claim as provided above, however, the Indemnified
Party may defend against the Third Party Claim in any manner the Indemnified
Party reasonably may deem appropriate. In no event will the Indemnified Party
consent to the entry of any judgment or enter into any settlement with respect
to the Third Party Claim without the prior written consent of the Indemnifying
Parties.
8.5 DETERMINATION OF ADVERSE CONSEQUENCES
. The Parties shall make appropriate adjustments for tax benefits and
insurance coverage in determining Adverse Consequences for purposes of this
Article VIII.
8.6 SETOFF
. To the extent Adverse Consequences exist in excess of the Deductible,
the Buyer shall setoff such amount against the Holdback. Buyer shall first
notify the Seller in writing of the asserted amount of the setoff and the facts
pursuant to which the Buyer believes it is entitled to exercise such setoff
right, after which the Seller shall have twenty (20) business days within which
to object to or cure said alleged breach.
8.7 EXCLUSIVE REMEDY
. The Parties acknowledge and agree that the foregoing indemnification
provisions in this Article VIII shall be the exclusive remedy of the Parties
with respect to the Acquired Assets, the sale of the Business, and the
transactions contemplated by this Agreement (exclusive of remedies provided and
in connection with those agreements described in Section 2.5 , which shall be
governed by their respective terms). Without limiting the generality of the
foregoing, the Buyer understands and agrees that its right to indemnification
under Section 8.2(a) for breach of the representations and warranties contained
in Section 3.8 shall constitute its sole and exclusive remedy against the Seller
with respect to any environmental, health, or safety matter relating to the
past, current or future facilities, properties or operations of the Business and
all of their respective predecessors or Affiliates, including without limitation
any such matter arising under any Environmental, Health, and Safety
Requirements. Aside from such right to indemnification, the Buyer hereby waives
any right, whether arising at law or in equity, to seek contribution, cost
recovery, damages, or any other recourse or remedy from the Seller, and hereby
releases the Seller from any claim, demand or liability, with respect to any
such environmental, health, or safety matter (including without limitation any
arising under any Environmental, Health, and Safety Requirements and including
without limitation any arising under the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), any analogous state law, or the
common law. Except as set forth above, the Buyer hereby unconditionally agrees
to indemnify, defend, and hold harmless the Seller from any and all liability,
loss, cost or expense with respect to any such environmental, health, or safety
matter (including without limitation any arising under any Environmental,
Health, and Safety Requirements and including without limitation CERCLA, any
analogous state law, and the common law).
IX. MISCELLANEOUS.
9.1 PRESS RELEASES AND PUBLIC ANNOUNCEMENTS
. Before the Closing Date, no Party shall issue any press release or make
any public announcement relating to the subject matter of this Agreement without
the prior written approval of the other Party; provided, however, that any Party
may make any public disclosure it believes in good faith is required by
applicable Law (in which case the disclosing Party will use its best efforts to
advise the other Party prior to making the disclosure).
9.2 NO THIRD-PARTY BENEFICIARIES
. This Agreement shall not confer any rights or remedies upon any Person
other than the Parties and GSI and their respective successors and permitted
assigns.
9.3 ENTIRE AGREEMENT
. This Agreement (including the documents referred to herein) constitutes
the entire agreement between the Parties and supersedes any prior
understandings, agreements, or representations by or between the Parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
9.4 SUCCESSION AND ASSIGNMENT
. This Agreement shall be binding upon and inure to the benefit of the
Parties named herein and their respective successors and permitted assigns. No
Party may assign either this Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the other Party.
9.5 COUNTERPARTS
. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument.
9.6 HEADINGS
. The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
9.7 NOTICES
. All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given if (and then two business
days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to Buyer: Hog Slat, Inc. If to Seller: FarmPRO, Inc.
______________________ _________________________
______________________ _________________________
Attn:__________________ Attn:_____________________
Fax:___________________ Fax:______________________
Copy to: Copy to: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any Party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, telecopy, telex, ordinary mail, or electronic mail), but no such
notice, request, demand, claim, or other communication shall be deemed to have
been duly given unless and until it actually is received by the intended
recipient. Any Party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other Party notice in the manner herein set forth.
9.8 GOVERNING LAW
. This Agreement shall be governed by and construed in accordance with the
domestic Laws of the State of Delaware without giving effect to any choice or
conflict of Law provision or rule that would cause the application of the Laws
of any jurisdiction other than the State of Delaware.
9.9 AMENDMENTS AND WAIVERS
. No amendment of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by the Parties. No waiver by any Party
of any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
9.10 SEVERABILITY
. Any term or provision of this Agreement that is invalid or unenforceable
in any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction.
9.11 EXPENSES
. Each of the Parties will bear its own costs and expenses (including
legal fees and expenses) incurred in connection with this Agreement and the
transactions contemplated hereby.
9.12 CONSTRUCTION
. The Parties have participated jointly in the negotiation and drafting of
this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement. Any reference to any federal, state, local, or foreign statute
or Law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. The word "including" shall
mean including without limitation.
9.13 INCORPORATION OF EXHIBITS AND SCHEDULES
. The Exhibits and Schedules identified in this Agreement are incorporated
herein by reference and made a part hereof.
9.14 TIME OF THE ESSENCE
. Time is of the essence of this Agreement. If any date herein set forth
for the performance of any obligations by any Party for the delivery of any
instrument or notice as herein provided should be on a Saturday, Sunday or legal
holiday, the compliance with such obligations or delivery shall be deemed
acceptable on the next business day following such Saturday, Sunday or legal
holiday. As used herein, the term "legal holiday" means any state or federal
holiday for which financial institutions or post offices are generally closed in
the State of Missouri for observance thereof.
IN WITNESS WHEREOF, the undersigned have entered into this Agreement as of the
date and year first written above.
BUYER
Hog Slat, Inc.
By:__________________________________
Printed Name: _________________________
Title: _________________________
SELLER
FarmPRO, Inc.
By:__________________________________
Printed Name:_________________________
Title: President
SELLER'S STOCKHOLDER:
The GSI Group, Inc.
By:__________________________________
Printed Name:_________________________
Title: _________________________
4
EXHIBITS
EXHIBIT 1-DEFINITIONS
----------------------
1. "Acquired Assets" means all right, title, and interest in and to all of
the assets of the Seller that are directly and solely related to the Business,
including all (a) of the Seller's tangible personal property (such as machinery,
equipment, inventory, furniture, automobiles, trucks, tractors, trailers, tools,
jigs, and dies), (b) of the Seller's Intellectual Property shown on Section 3.16
of the Disclosure Schedule, goodwill associated therewith, licenses and
sublicenses granted and obtained with respect thereto, and rights thereunder,
remedies against infringements thereof, documentation related thereto, and
rights to protection of interests therein under the Laws of all jurisdictions,
(c) of the Assumed Contracts, (d) of the Seller's books, records, ledgers,
files, documents, correspondence, lists, plats, architectural plans, drawings,
and specifications, creative materials, advertising and promotional materials,
studies, reports, and other printed or written materials, and (e) accounts
receivable for sales less than 60 days prior to the date of Closing; provided,
however, that the Acquired Assets shall not include (i) any of the rights of the
Seller under this Agreement (or under any side agreement between the Seller on
the one hand and the Buyer on the other hand entered into on or after the date
of this Agreement); or (ii) any of the Excluded Assets.
2. "Adverse Consequences" means all Proceedings, Orders, damages, dues,
penalties, fines, costs, amounts paid in settlement, Liabilities, Taxes, liens,
losses, expenses, and fees, including court costs and reasonable attorneys' fees
and expenses.
3. "Affiliate" means: a. with respect to a particular individual: (a) each
other member of such individual's Family; ii. any Person that is directly or
indirectly controlled by any one or more members of such individual's Family;
and iii. any Person with respect to which one or more members of such
individual's Family serves as a director, officer, partner, executor or trustee
(or in a similar capacity); (b). with respect to a specified Person other than
an individual: (i) any Person that directly or indirectly controls, is directly
or indirectly controlled by or is directly or indirectly under common control
with such specified Person; (ii) each Person that serves as a director, officer,
partner, executor or trustee of such specified Person (or in a similar
capacity); and (iii) any Person with respect to which such specified Person
serves as a general partner or a trustee (or in a similar capacity).
For purposes of this definition, (a) "control" (including "controlling,"
"controlled by," and "under common control with") means the possession, direct
or indirect, 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; and (b) the "Family" of an individual includes (i) the
individual, (ii) the individual's spouse and children, and (iii) any other
natural person who is related to the individual and who resides with such
individual.
4. "Assumed Contracts" means each of the contracts or agreements of the
Seller identified by the Buyer on the notice contemplated by Section 5.6.
5. "Assumed Liabilities" means the obligations of the Seller under the
Assumed Contracts.
6. "Business" means the Seller's business as currently conducted.
7. "Buyer" has the meaning set forth in the preface above.
8. "Closing" has the meaning set forth in Section 2.4.
9. "Closing Date" has the meaning set forth in Section 2.4.
10. "Code" means the Internal Revenue Code of 1986, as amended.
11. "Deductible" shall have the meaning set forth in Section 8.2.
12. "Disclosure Schedule" has the meaning set forth in Article III.
13. "Employees" shall have the meaning set forth in Section 3.20.
14. "Employee Benefit Plan" means any (a) nonqualified deferred
compensation arrangement, (b) qualified defined contribution retirement plan
which is an Employee Pension Benefit Plan, (c) qualified defined benefit
retirement plan which is an Employee Pension Benefit Plan (including any
Multiemployer Plan), (d) Employee Welfare Benefit Plan or material fringe
benefit or other retirement, bonus, or severance plan or program, or (e)
obligation, arrangement or customary practice to provide benefits, other than
salary, as compensation for services rendered, to present and former directors,
employees, or agents other than obligations, arrangements and practices that are
described in (a) through (d).
15. "Employee Pension Benefit Plan" has the meaning set forth in ERISA
Sec.3(2).
16. "Employee Welfare Benefit Plan" has the meaning set forth in ERISA
Sec.3(1).
17. "Environmental, Health, and Safety Requirements" shall mean all federal,
state, local and foreign statutes, regulations, ordinances and other provisions
having the force or effect of Law, all judicial and administrative Orders and
determinations, all contractual obligations and all common law concerning public
health and safety, worker health and safety, and pollution or protection of the
environment, including all those relating to the presence, use, production,
generation, handling, transportation, treatment, storage, disposal,
distribution, labeling, testing, processing, discharge, release, threatened
release, control, or cleanup of any hazardous materials, substances or wastes,
chemical substances or mixtures, pesticides, pollutants, contaminants, toxic
chemicals, petroleum products or byproducts, asbestos, polychlorinated
biphenyls, noise or radiation, each as amended and as now or hereafter in
effect.
18. "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
19. "ERISA Affiliate" means each entity which is treated as a single
employer with Seller for purposes of Code Sec.414.
20. "Excluded Assets" has the meaning set forth in Section 2.1.
21. "Fiduciary" has the meaning set forth in ERISA Sec.3(21).
22. "Financial Statements" has the meaning set forth in Section 3.9.
23. "GAAP" means United States generally accepted accounting principles as
in effect from time to time.
24. "Governmental Authority" means any a. nation, state, county, city, town,
borough, village, district or other jurisdiction; b. federal, state, local,
municipal, foreign or other government; c. governmental or quasi-governmental
body of any nature (including any agency, branch, department, board, commission,
court, tribunal or other entity exercising governmental or quasi-governmental
powers); d. body exercising, or entitled or purporting to exercise, any
administrative, executive, judicial, legislative, police, regulatory or taxing
authority or power; e. any regulatory or self-regulatory authority compliance
with which is required by Law; or f. an official of any of the foregoing.
25. "Intellectual Property" has the meaning set forth in Section 3.16.
26. "Knowledge" an individual will be deemed to have "Knowledge" of a
particular fact or other matter if such individual is or was actually aware of
such fact or other matter.
27. "Law" means any statute, law, ordinance, decree, Order, injunction,
rule, directive, or regulation of any Governmental Authority.
28. "Liability" means any obligation or liability (whether known or unknown,
whether asserted or unasserted, whether absolute or contingent, whether accrued
or unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for any Tax.
29. "Most Recent Financial Statements" has the meaning set forth in Section
3.9."Most Recent Fiscal Month End" has the meaning set forth in Section 3.9.
30. "Most Recent Fiscal Year End" has the meaning set forth in Section 3.9.
31. "Multiemployer Plan" has the meaning set forth in ERISA Sec.3(37)(A).
32. "Order" means any award, decision, injunction, judgment, order, ruling,
subpoena, or verdict entered, issued, made, or rendered by any Governmental
Authority or by any arbitrator.
33. "Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
34. "Party" has the meaning set forth in the preface above.
35. "Permits" means licenses, permits, certificates, certificates of
occupancy, orders, authorizations and approvals required by applicable Laws or
Governmental Authority.
36. "Person" means an individual, a partnership, a corporation, an
association, limited liability company, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a Governmental Authority.
37. "Post-Closing Adjusted Purchase Price" has the meaning set forth in
Section 2.3.
38. "Proceeding" means any action, arbitration, audit, hearing, charge,
compliant, investigation, litigation, petition, or suit (whether civil,
criminal, administrative, investigative, or informal) commenced, brought,
conducted, or heard by or before, or otherwise involving, any Governmental
Authority or arbitrator.
39. "Prohibited Transaction" has the meaning set forth in ERISA Sec.406 and
Code Sec.4975.
40. "Purchase Price" has the meaning set forth in Section 2.6.
41. "Security Interest" means any mortgage, pledge, lien, encumbrance,
charge, or other security interest, other than (a) mechanic's, materialmen's,
and similar liens, (b) liens for Taxes not yet due and payable, (c) purchase
money liens and liens securing rental payments under capital lease arrangements,
and (d) other liens arising in the Ordinary Course of Business and not incurred
in connection with the borrowing of money.
42. "Seller" has the meaning set forth in the preface above.
43. "Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code Sec.59A),
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
44. "Tax Return" means any return, declaration, report, claim for refund, or
information return or statement relating to any Tax, including any schedule or
attachment thereto, and including any amendment thereof.
45. "Trademarks" has the meaning set forth in Section 3.16.
46. "Unassignable Contracts" shall have the meaning set forth in Section 7.4
hereof.
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3
EXHIBIT 2.1-EXCLUDED ASSETS
---------------------------
[Below descriptions are from various emails, more detail will be needed
prior to closing]
Certain Inventory over 10 months old[per 3.12]
Truck and Trailer items (approximate value $150,000)
Leasehold improvements
Equipment not passing Buyer's inspection [to be scheduled prior to Closing].
------
3
EXHIBIT 2.5(III)(A)-ASSIGNMENT AND ASSUMPTION
------------------------------------------------
EXHIBIT 2.6-ALLOCATION SCHEDULE
---------------------------------
EXHIBIT 2.6(C)(6) - ▇▇▇▇ OF SALE
-------------------------------------
EXHIBIT 3.9-FINANCIAL STATEMENTS
----------------------------------
