EXHIBIT 10(g)
AGREEMENT OF PURCHASE AND SALE OF ASSETS
AGREEMENT dated March 25, 1999 by and among UNIVERSAL SUPPLY GROUP, INC., a New
Jersey corporation having its principal office at 000 Xxxxxxx Xxxx, Xxxxxxxxx,
Xxx Xxxxxx 00000 ("Seller"), COLONIAL COMMERCIAL CORP., a New York corporation
having its principal office at 0000 Xxxxxxxxx Xxxxxxxx, Xxxxxxxxx, Xxx Xxxx
00000 ("Parent"), COLONIAL COMMERCIAL SUB CORP., a New York corporation which is
wholly owned by Parent and has its principal office c/o Parent ("Purchaser"),
and XXXX X. XXXXXXXXXXX ("JAH"), XXXX X. XXXXXXXXXXX ("PHH"), XXXXX XXXXXXXXXXX
, XXXX XXXXXXXXXXX, XXXXXXX XXXXXXX, XXXX X. XXXXXXXXXXX, XXXXX X. XXXXXXXXX,
XXXXX X. XXXXX, XXXX X. XXXXXXXXXXX and XXXXX X. XXXXXX. The parties other than
Seller, Parent and Purchaser are sometimes referred to herein collectively as
the Shareholders. JAH and PHH are referred to herein as the Majority
Shareholders, and the Shareholders other than JAH and PHH are sometimes referred
to herein as the "Other Shareholders." The Shareholders own all of the
outstanding capital stock of Seller and each has an office c/o Seller.
W I T N E S S E T H:
--------------------
IN CONSIDERATION of the mutual covenants and agreements hereinafter set forth,
the parties hereby agree as follows:
1. Purchase And Sale Of Business And Assets.
----------------------------------------
(a) Subject to and upon the terms and conditions set forth in this
Agreement, Seller will sell, transfer, convey, assign and deliver
to Purchaser, and Purchaser will purchase, at the Closing
hereunder, all of the business, assets, properties, goodwill and
rights of Seller as a going concern, of every nature, kind and
description, tangible and intangible, wheresoever located and
whether or not carried or reflected on the books and records of
Seller (hereinafter sometimes collectively called "Seller's
Assets"), including, without limitation,
(i) The cash on hand and in banks of Seller, its commercial
paper, checks and drafts not yet collected, treasury bills,
bank deposits, certificates of deposit, accrued interest and
any and all other cash items, of whatever nature and kind;
(ii) All merchandise, inventories, materials and supplies used
in the business of Seller including items in transit from
vendors (hereinafter collectively referred to as
"Inventory");
(iii) All accounts receivable, notes receivable and all
accrued or unaccrued payments or obligations which have
inured or shall inure to the benefit of Seller as of the
Closing Date;
(iv) All machinery, equipment, office equipment, leasehold
improvements, motor vehicles, fixtures, and supplies of
Seller existing as of the Closing Date, including any
replacements thereof;
(v) All of the right, title and interest of Seller in and to
all United States and foreign patents, trademarks and
copyrights, application for any of the foregoing,
inventions, product formulations, trade secrets, if any,
relating to the product lines in effect as of the Closing
Date, and in and to the name "Universal Supply Group," and
any and all variations or derivations thereof and in and to
all logos, insignias and advertising materials bearing the
name " Universal Supply Group," and all trade names, and
trademarks currently used by Seller in connection with its
business (the "Business");
(vi) All of the right, title and interest in and to all leases
of real and personal property to which Seller is a party
with respect to the Business;
(vii) All of the right title and interest of Seller in and to
all agreements, contracts and orders, license agreements,
franchise and all other agreements and contracts with
respect to the Business;
(viii) The lists of Seller of suppliers and of clients which
exist as of the Closing Date;
(ix) Seller's client records, client files and other client
property;
(x) all employee lists, files, papers, books, records, sales
and advertising materials and records, sales and purchase
correspondence, affecting or pertaining to Seller's
ownership and/or use of Seller's Assets;
(xi) All deposits, credits and prepaid items related to or
arising from the Business;
(xii) All insurance policies of Seller;
(xiii) All financial records pertaining to the Business;
(xiv) The goodwill of Seller;
-9-
(xv) The assets referred to in disclosures heretofore made by
Seller to Purchaser;
(xvi) The assets reflected on the Balance Sheet referred to
herein, with only such dispositions of such assets reflected
on the Balance Sheet as shall have occurred in the ordinary
course of Seller's business between the date thereof and the
Closing and which are permitted by the terms hereof
(xvii) All other assets, properties, rights and businesses of
every kind and nature owned or held by Seller relating to
the Business, including deferred or prepaid taxes, or rights
to tax refunds, or in which Seller has an interest, on the
date hereof, known or unknown, fixed or unfixed, xxxxxx or
inchoate, accrued, absolute, contingent or otherwise,
whether or not specifically referred to in this Agreement.
(b) Seller's Assets shall be conveyed free and clear of all
liabilities, obligations, liens and encumbrances excepting only
those liabilities and obligations which are to be assumed by
Purchaser hereunder and those liens and encumbrances securing the
same which are disclosed herein or expressly permitted by the
terms hereof.
(c) The minute books, stock record books and the corporate seal of
Seller (collectively the "Excluded Assets") are excluded from
Seller's Assets.
(d) Purchaser acknowledges that Seller has used premises owned by
certain of the Shareholders and that such premises are not
included in Seller's Assets.
2. Purchase Price.
--------------
(a) In consideration of the sale, transfer, conveyance, assignment
and delivery of the Seller's Assets by Seller to Purchaser, and
in reliance upon the representations and warranties made herein
by Seller and Shareholders, Purchaser will, in full payment
thereof, pay to Seller at the Closing a total purchase price (the
"Purchase Price") equal to the sum of:
(i) Seller's Net Book Value (as hereinafter defined) appearing
on the balance sheet to be included in the Approved March
1999 Audited Balance Sheet (as defined in Section 3(a)(ii)),
plus
(ii) an amount equal to the interest which would have accrued
on the Net Book Value from March 31, 1999 until the Closing
at a rate equal to 5.07% per annum; plus
(iii) $2,500,000.
(b) "Net Book Value" means the total value of all recorded assets
less the total value of all liabilities.
(c) The Purchase Price shall be payable at the Closing by wire
transfer of 95% of the Purchase Price to Seller, and by wire
transfer of the balance of the Purchase Price to X. Xxxxxxx
Xxxxxxx, Esq., as escrow agent (the "Escrow Agent") under an
agreement in the form of an exhibit to this Agreement (the
"Escrow Agreement").
(d)
(i) In addition to the foregoing, Purchaser and Parent will at
the Closing jointly and severally assume (i) the liabilities
which are reflected in the March 1999 Audited Balance Sheet
(as hereinafter defined), (ii) liabilities accruing in the
ordinary course of business from and after April 1, 1999 and
(iii) liabilities which arise from and after April 1, 1999
under Contracts referred to in Seller's disclosure schedule
("Seller's Disclosure Schedule") as "Assumed Contracts."
(ii) Anything in this Agreement to the contrary
notwithstanding, Purchaser and Parent shall not assume, or
in any way be liable or responsible for
(a) all liabilities or obligations for any foreign, federal,
state, country or local income, franchise, gross receipts
or value added taxes, or any interest, additions to tax or
penalties thereon, accrued for, applicable to or arising
from any period through March 31, 1999; or
(b) any liability to the extent covered and. without cost to
Seller, paid by insurance of Seller pursuant to a policy
in effect of or prior to Closing.
(e) Allocation of Purchase Price. Of the purchase price, $150,000
shall be allocated to the agreement not to compete which is
referred to in Section 5(e), an amount equal to the Net Book
Value on Seller's March 1999 Audited Financial Statements shall
be allocated to Seller's Assets other than goodwill, and the
balance of the purchase price shall be allocated to goodwill.
-10-
3. Certain Other Agreements.
(a) Preparation Of Financial Statements.
------------------------------------
(i) Commencing immediately after the date hereof, Seller and
Shareholders shall use their best efforts to cause a
recognized firm of independent certified public accountants
promptly to audit the balance sheet of Seller as of March
31, 1999 (the "March 1999 Audited Balance Sheet") and the
other financial statements of Seller for the years ended
March 31, 1999 and 1998 (together with the March 1999
Audited Balance Sheet, the "Audited Financial Statements")
in accordance with generally accepted accounting principles
consistent with those used by Parent in the preparation of
Parent's financial statements ("GAAP").
(ii) Seller and Shareholders shall forthwith upon completion
of such financial statements present such statements to
Purchaser and its accountants for review. The term "Approved
March 1999 Audited Balance Sheet" means the March 1999
Audited Balance Sheet which has been reviewed by Purchaser
as aforesaid and which is satisfactory in form and substance
to Purchaser and its accountants. The term "Approved Audited
Financial Statements" as used herein means Audited Financial
Statements which have been reviewed by Purchaser as
aforesaid and which are satisfactory in form and substance
to Purchaser and its accountants. Approved Audited Financial
Statements for the year ended March 31, 1999 are referred to
herein as the "Approved March 1999 Audited Statements,"
Approved Audited Financial Statements for the year ended
March 31, 1998 are referred to herein as the "Approved March
1998 Audited Statements."
(iii) Purchaser shall at the Closing reimburse Seller for all
amounts expended by Seller prior to March 31, 1999 towards
the preparation of the Approved Audited Financial
Statements.
(iv) If this Agreement is terminated without a Closing other
than by reason of a breach by Seller or any Shareholder of
any representation or warranty or covenant herein, then
Purchaser shall reimburse Seller for all amounts expended by
Seller to KPMG towards the preparation of the Approved
Audited Financial Statements, less the cost of preparing the
March 1999 Audited Balance Sheet.
(b) No Action Letter. In the event that by the close of business on
----------------
July 1, 1999 Purchaser shall have reviewed and found satisfactory
the March 1999 Audited Balance Sheet, but despite their best
efforts referred to in Section (a), Seller and Shareholders shall
have failed to present to Purchaser (1) all of Seller's other
audited financial statements for the year ended March 31, 1999
and (2) all of Seller's audited financial statements for the year
ended March 31, 1998, or if by the close of business on July 31,
1999 Purchaser shall not have determined that all statements
referred to in clauses (1) and (2) constitute Approved Audited
Financial Statements, then Parent shall apply to the Securities
and Exchange Commission (the "SEC") and the National Association
of Securities Dealers (the "NASD") for no-action or other letters
in which the SEC and the NASD set forth to Parent the
consequences to Parent should the transaction hereunder be
consummated without the availability for filing of such
statements referred to in clauses (1) and (2). If, and only if,
Parent's Board of Directors in its sole discretion deem such
consequences acceptable, such letters shall be deemed "Acceptable
SEC-NASD Letters" within the meaning of this Agreement.
(c) Leases.
------
(i) There are attached hereto forms of leases ("Affiliated
Leases") for premises owned by certain Shareholders. At the
Closing, such Shareholders as landlord shall enter into the
Affiliated Leases with Purchaser as tenant for the aforesaid
premises.
(ii) Seller and Shareholders shall use their best efforts to
cause the landlord of the premises located at Xxxxxxx, North
Brunswick and Cedar Knolls, New Jersey, prior to the Closing
to consent (the "Landlord Consent") to the assignment of the
lease therefor (each, an "Unaffiliated Lease") to Purchaser.
(d) Payment Of Brokerage Fees. Shareholders shall alone be
-------------------------
responsible for the obligations incurred by Seller and
Shareholders to Xxxxxxxxx Company, and such obligations shall not
be paid by Seller. Parent and Purchaser shall alone be
responsible for the obligations incurred by them to Xxxxxxxxx
Company.
(e) Certain Payments And Assignments By Purchaser.
----------------------------------------------
(i) On The First Anniversary Of The Closing:
---------------------------------------
(i) Purchaser shall pay to Seller all amounts theretofore
recovered by Purchaser in respect of obsolete
inventory and receivables which was included in
Seller's Assets and for which zero value was assigned
in the calculation of Net Book Value ("Zero Value
Assets").
(ii) Purchaser shall assign to Seller, without recourse,
any Zero Value Assets which Purchaser shall not have
recovered as of the first anniversary of the Closing.
(ii) Receipts from obligors shall be applied against
receivables in the order in which the receivables arose, on
a first in, first out basis, except where an obligor
disputes a receivable, in which case receipts shall be
applied first against the undisputed receivables on a first
in-first out basis.
-11-
4. Closing.
-------
(a) The Closing shall take place at the offices of Xxxxx X. Xxxxxx at
10:00 A.M., local time, on the 10th business day after each of
(i), (ii) and (iii) shall have occurred, namely:
(i) Seller shall have delivered the Approved March 1999
Audited Balance Sheet to Purchaser,
(ii) either (1) Seller shall have delivered the statements
referred to in clauses (1) and (2) of Section 3(b) or (2)
Purchaser shall have received Acceptable SEC-NASD Letters,
and
(iii) Seller shall have obtained the Landlord Consents .
(b) Without limiting the generality of the provisions of Section
4(a), Parent and Purchaser shall not be obligated to consummate
this transaction if all such conditions are not satisfied by the
close of business on July 31, 1999. In such event each party
shall bear its own expenses, except that nothing in this sentence
shall relieve Seller or Shareholders from any breach by them of
any obligations under this Agreement, including without
limitation, the breach of their obligation to use their best
efforts to cause the aforesaid conditions to be satisfied..
(c) Notwithstanding the foregoing, if this Agreement is terminated
without a Closing other than by reason of a breach by Seller or
any Shareholder of any representation or warranty or covenant
herein, then Purchaser shall reimburse Seller for all amounts
expended by Seller to KPMG towards the preparation of the
Approved Audited Financial Statements, less the cost of preparing
the March 1999 Audited Balance Sheet.
5. Other Transactions At Closing; Further Assurances.
--------------------------------------------------
(a) At the Closing, Seller and Shareholders will deliver to Purchaser:
(i) A Xxxx of Sale duly executed by Seller in the form of an
Exhibit to this Agreement;
(ii) Such other good and sufficient instruments of conveyance,
assignment and transfer, in form and substance satisfactory
to Purchaser's counsel, as shall be effective to vest in
Purchaser good and marketable title to Seller's Assets;
(iii) all contracts, files and other data and documents
pertaining to Seller's Assets, except Seller's minute books
and stock ledger records, (which may be delivered at the
offices of Seller);
(iv) all documents required to be delivered to Purchaser under
the provisions of this Agreement;
(v) copies of the certificate of incorporation of Seller
certified as of a date within 10 days of the Closing Date by
an appropriate government official of New Jersey and
certified by its respective Secretary as to the absence of
any amendments between the dates of certification by the
official and the Closing Date;
(vi) a certificate from the appropriate governmental official
in New York and New Jersey and in each state in which Seller
is qualified to do business as to the good standing and of
the payment of taxes by Seller in such jurisdictions as of a
date within ten days of the Closing Date;
(vii) copies of the bylaws of Seller, certified by its
Secretary as a true and correct copy thereof as of the
Closing Date;
(viii) all consents from third parties, if any, as are
required to consummate the sale of Seller's Assets;
(ix) the instruments referred to in Section 10;
(x) the opinion of Seller's counsel referred to in Section 10;
and
(xi) such other documents as may be required pursuant to this
Agreement or as may reasonably by requested by Purchaser and
its counsel.
(b) On the Closing Date, Purchaser shall deliver or cause to be delivered
to Seller the following:
(i) payment of the amounts specified in Section 2:
(ii) a copy of the resolutions of the Board of Directors of
Purchaser, together with any and all required resolutions or
consents of the shareholders thereof, approving the
execution and delivery of this Agreement and the
consummation of all of the transactions contemplated hereby,
duly certified by an officer of Purchaser;
-12-
(iii) the instruments referred to in Section 9; and
(iv) such other documents as may be required pursuant to this
Agreement or as may reasonably be requested by Seller and
its counsel.
(c) At the Closing, Purchaser will execute and deliver, and Seller
and Shareholders will cause to execute and deliver, an employment
contract with each of Xxxx X. Xxxxxxxxxxx, Xxxxxxx Xxxxx and
Xxxxxxx Xxxxxx in the form of Exhibits to this Agreement.
(d) At the Closing, Purchaser will enter into the Affiliated Leases
with the Shareholders who are the landlords thereunder.
(e) At the Closing, Seller and each Majority Shareholder shall
execute and deliver to Purchaser a non-competition agreement in
the form of an Exhibit to this Agreement.
(f) At least ten days prior to the Closing, Seller and the
Shareholders will deliver to Purchaser a duly executed and
acknowledged certificate of amendment to Seller's certificate of
incorporation or other appropriate document which is required to
change Seller's corporate name to a new name bearing no
resemblance to its present name so as to make Seller's present
name available to Purchaser. Purchaser is hereby authorized to
file such certificate or other document (at Seller's expense) in
order to effectuate such change of name at or after the Closing
as Purchaser shall elect.
(g) At any time and from time to time after the Closing, at
Purchaser's request and without further consideration, Seller and
Shareholders will execute and deliver such other instruments of
sale, transfer, conveyance, assignment and confirmation and take
such action as Purchaser may reasonably deem necessary or
desirable in order to more effectively transfer, convey and
assign to Purchaser, and to confirm Purchaser's title to, all of
Seller's assets, to put Purchaser in actual possession and
operating control thereof and to assist Purchaser in exercising
all rights with respect thereto.
(h) After the Closing, at reasonable times and on reasonable notice,
Seller shall have access to the books and records pertaining to
its operations and business prior to the Closing, and Purchaser
shall have access to the minute books and stock ledger records of
Seller, and Purchaser shall retain such books and records, and
Seller shall retain such minute books and stock ledger records,
for a period of three years after the Closing.
(i) Seller agrees that Purchaser shall have the right and authority
to collect for its own account all receivables and other items
which shall be transferred to Purchaser as provided herein and to
endorse with the name of Seller any checks received on account of
any such receivables or other items. Seller agrees that it will
promptly transfer and deliver to Purchaser any cash or other
property which Seller may receive in respect of such receivables
or other items.
6. Representations And Warranties By Seller And Shareholders. Seller and each
---------------------------------------------------------
Majority Shareholder jointly and severally, and each Other Shareholder
severally, represents and warrants to Purchaser as follows (it being
understood that each representation and warranty is made by each Other
Shareholder only to the best of his or her knowledge):
(a) Organization, Standing and Qualification. Seller is a corporation
duly organized, validly existing and in good standing under the
laws of New Jersey; it has all requisite corporate power and
authority and is entitled to carry on its business as now being
conducted and to own, lease or operate its properties as and in
the places where such business is now conducted and such
properties are now owned, leased or operated; and it is duly
qualified, licensed or domesticated and in good standing as a
foreign corporation authorized to do business in the states
listed on Seller's Disclosure Schedule, which are the only states
where the nature of the activities conducted by it or the
character of the properties owned, leased or operated by it
require such qualification, licensing or domestication. Seller
has delivered to Purchaser true and complete copies of Seller's
certificate of incorporation and all amendments thereto,
certified by the Secretary of State of the State of , and the
by-laws of Seller as presently in effect, certified as true and
correct by Seller's Secretary.
(b) Subsidiaries. Seller has no subsidiaries except those listed on
Seller's Disclosure Schedule. Seller has no interest, direct or
indirect, and has no commitment to purchase any interest, direct
or indirect, in any other corporation or in any partnership,
joint venture or other business enterprise or entity other than
as set forth on Seller's Disclosure Schedule. The business
carried on by Seller has not been conducted through any other
direct or indirect subsidiary or affiliate of any Shareholder.
-13-
(c) Transactions with Certain Persons.
(i) Except as set forth on Seller's Disclosure Schedule,
during the past three years Seller has not, directly or
indirectly, purchased, leased from others or otherwise
acquired any property or obtained any services from, or
sold, leased to others or otherwise disposed of any property
or furnished any services to, or otherwise dealt with
(except with respect to remuneration for services rendered
as a director, officer or employee of Seller), in the
ordinary course of business or otherwise, (i) any
shareholder of Seller or (ii) any person, firm or
corporation which, directly or indirectly, alone or together
with others, controls, is controlled by or is under common
control with Seller or any shareholder of Seller.
(ii) Seller does not owe any amount to, or have any contract
with or commitment to, any of its shareholders, directors,
officers, employees or consultants (other than compensation
for current services not yet due and payable and
reimbursement of expenses arising in the ordinary course of
business), and none of such persons owes any amount to
Seller.
(iii) No part of the property or assets of any Shareholder or
any direct or indirect subsidiary or affiliate of any
Shareholder is used by Seller.
(d) Execution, Delivery and Performance of Agreement; Authority.
Neither the execution, delivery nor performance of this Agreement
by Seller or any Shareholder will, with or without the giving of
notice or the passage of time, or both, conflict with, result in
a default, right to accelerate or loss of rights under, or result
in the creation of any lien, charge or encumbrance pursuant to,
any provision of Seller's certificate of incorporation or by-laws
or any franchise, mortgage, deed of trust, lease, license,
agreement, understanding, law, rule or regulation or any order,
judgment or decree to which Seller or any Shareholder is a party
or by which any of them may be bound or affected. Seller and each
Shareholder have the full power and authority to enter into this
Agreement and to carry out the transactions contemplated hereby,
all proceedings required to be taken by them or their
stockholders to authorize the execution, delivery and performance
of this Agreement and the agreements relating hereto have been
properly taken and this Agreement constitutes a valid and binding
obligation of Seller and each Shareholder.
(e) Capitalization. The presently authorized, issued and outstanding
shares of capital stock of Seller and the names and addresses of
the record and beneficial owners thereof are as set forth on
Seller's Disclosure Schedule. Except as set forth on Seller's
Disclosure Schedule, there are no outstanding subscriptions,
options, warrants, calls, contracts, demands, commitments,
convertible securities or other agreements or arrangements of any
character or nature whatever under which Seller or any
Shareholder is or may become obligated to issue, assign or
transfer any shares of the capital stock of Seller, and there are
no rights of first refusal or similar rights with respect to any
such shares.
(f) Ownership of Seller's Capital Stock. Each of the Shareholders is
the lawful record and beneficial owner of the number of shares of
Seller's capital stock set opposite his name on Seller's
Disclosure Schedule, free and clear of any liens, claims,
encumbrances or restrictions of any kind, and all of such shares
are validly issued and outstanding, fully paid and nonassessable.
(g) Financial Statements.
(i) Attached to this Agreement as exhibits are copies of the
following financial statements (hereinafter collectively
called the "Financial Statements"), all of which are
complete and correct, have been prepared from the books and
records of Seller in accordance with generally accepted
accounting principles consistently applied and maintained
throughout the periods indicated and present fairly the
financial condition of Seller as at their respective dates
and the results of its operations for the periods covered
thereby:
(i) an unaudited balance sheet of Seller (the "Balance
Sheet") as at December 31, 1998 (the "Balance Sheet
Date") and Seller's unaudited statements of earnings
and source and application of funds for the nine
months then ended;
(ii) an unaudited balance sheet of Seller as at March 31,
1998 and Seller's unaudited Statement of earnings and
source and application of funds for the 52-week
period then ended; and
(iii)an unaudited balance sheet of Seller as at March 31,
1997 and Seller's unaudited Statement of earnings and
source and application of funds for the 52-week period
then ended.
(ii) Such statements of earnings do not contain any items of
special or nonrecurring income or any other income not
earned in the ordinary course of business except as
expressly specified therein, and such interim financial
statements include all adjustments, which consist only of
normal recurring accruals, necessary for such fair
presentation.
(iii) The Approved Audited Financial Statements shall be
prepared from the books and records of Seller in accordance
with GAAP and shall fairly present the financial condition
of Seller as at their respective dates and the results of
its operations for the periods covered thereby.
-14-
(h) Absence of Undisclosed Liabilities. Except as and to the extent
reflected or reserved against on the face of the Balance Sheet
(excluding the notes thereto), as of the Balance Sheet Date
Seller had no debts, liabilities or obligations, or any foreign
or domestic tax liabilities or deferred tax liabilities incurred
in respect of or measured by Seller's income, or its property or
authorized or outstanding capital stock, for any period prior to
the close of business on the Balance Sheet Date or any other
debts, liabilities or obligations relating to or arising out of
any act, transaction, circumstance or state of facts which
occurred or existed on or before the Balance Sheet Date, whether
or not then known, due or payable. None of the Seller's employees
is now or, will by the passage of time hereafter become, entitled
to receive any vacation time, vacation pay or severance pay
attributable to services rendered prior to the Balance Sheet Date
except as disclosed on the face of the Balance Sheet (excluding
the notes thereto).
(i) Taxes. All taxes, including, without limitation, income,
property, sales, use, franchise, added value, employees' income
withholding and social security taxes, imposed by the United
States or by any foreign country or by any state, municipality,
subdivision or instrumentality of the United States or of any
foreign country, or by any other taxing authority, which are due
or payable by Seller, and all interest and penalties thereon,
whether disputed or not, have been paid in full, all tax returns
required to be filed in connection therewith have been accurately
prepared and duly and timely filed and all deposits required by
law to be made by Seller with respect to employees' withholding
taxes have been duly made. Seller has not been delinquent in the
payment of any foreign or domestic tax, assessment or
governmental charge or deposit and has no tax deficiency or claim
outstanding, proposed or assessed against it, and there is no
basis for any such deficiency or claim.
(j) Absence of Changes or Events. Except as set forth in Seller's
Disclosure Schedule, since the Balance Sheet Date Seller has
conducted its business only in the ordinary course and has not:
(i) incurred any obligation or liability, absolute, accrued,
contingent or otherwise, whether due or to become due,
except current liabilities for trade or business obligations
incurred in the ordinary course of business and consistent
with its prior practice, none of which liabilities, in any
case or in the aggregate, materially and adversely affects
the business, liabilities or financial condition of Seller;
(ii) discharged or satisfied any lien, charge or encumbrance
other than those then required to be discharged or
satisfied, or paid any obligation or liability, absolute,
accrued, contingent or otherwise, whether due or to become
due, other than current liabilities shown on the Balance
Sheet and current liabilities incurred since the Balance
Sheet Date in the ordinary course of business and consistent
with its prior practice;
(iii) declared or made any payment of dividends or other
distribution to its shareholders or upon or in respect of
any shares of its capital stock, or purchased, retired or
redeemed, or obligated itself to purchase, retire or redeem,
any of its shares of capital stock or other securities;
(iv) mortgaged, pledged or subjected to lien, charge, security
interest or any other encumbrance or restriction any of its
property, business or assets, tangible or intangible;
(v) sold, transferred, leased to others or otherwise disposed
of any of its assets, except for inventory sold in the
ordinary course of business, or canceled or compromised any
debt or claim, or waived or released any right of
substantial value;
(vi) received any notice of termination of any contract, lease
or other agreement or suffered any damage, destruction or
loss (whether or not covered by insurance) which, in any
case or in the aggregate, has had a materially adverse
effect on the assets, operations or prospects of Seller;
(vii) encountered any labor union organizing activity, had any
actual or threatened employee strikes, work-stoppages,
slow-downs or lock-outs, or had any material change in its
relations with its employees, agents, customers or
suppliers;
(viii) transferred or granted any rights under, or entered
into any settlement regarding the breach or infringement of,
any United States or foreign license, patent, copyright,
trademark, trade name, invention or similar rights, or
modified any existing rights with respect thereto;
(ix) except in the ordinary course of business, made any
change in the rate of compensation, commission, bonus or
other direct or indirect remuneration payable, or paid or
agreed or orally promised to pay, conditionally or
otherwise, any bonus, extra compensation pension or
severance or vacation pay, to any shareholder, director,
officer, employee, salesman, distributor or agent of Seller;
(x) issued or sold any shares of its capital stock or other
securities, or issued, granted or sold any options, rights
or warrants with respect thereto, or acquired any capital
stock or other securities of any corporation or any interest
in any business enterprise, or otherwise made any loan or
advance to or investment in any person, firm or corporation;
-15-
(xi) made any capital expenditures or capital additions or
betterments in excess of an aggregate of $50,000;
(xii) changed its banking or safe deposit arrangements;
(xiii) instituted, settled or agreed to settle any litigation,
action or proceeding before any court or governmental body
relating to Seller or its property;
(xiv) failed to replenish its inventories and supplies in a
normal and customary manner consistent with its prior
practice, or made any purchase commitment in excess of the
normal, ordinary and usual requirements of its business or
at any price in excess of the then current market price or
upon terms and conditions more onerous than those usual and
customary in the industry, or made any change in its
selling, pricing, advertising or personal practices
inconsistent with its prior practice and prudent business
practices prevailing in the industry;
(xv) suffered any change, event or condition which, in any
case or in the aggregate, has had or may have a materially
adverse affect on Seller's condition (financial or
otherwise), properties, assets, liabilities, operations or
prospects, including, without limitation, any change in
Seller's revenues, costs, backlog or relations with its
employees, agents, customers or suppliers;
(xvi) entered into any transaction, contract or commitment
other than in the ordinary course of business or paid or
agreed to pay any legal, accounting, brokerage, finder's
fee, taxes or other expenses in connection with, or incurred
by severance pay obligations by reason of, this Agreement or
the transactions contemplated hereby; or
(xvii) entered into any agreement or made any commitment to
take any of the types of action described in subparagraphs
(i) through (xvi) above.
(k) Litigation. Except as set forth in Seller's Disclosure Schedule,
there is no claim, legal action, suit, arbitration, governmental
investigation or other legal or administrative proceeding, nor
any order, decree or judgment in progress, pending or in effect,
or to the knowledge of Seller or any Shareholder threatened,
against or relating to Seller, its officers, directors or
employees, its properties, assets or business or the transactions
contemplated by this Agreement, and neither Seller nor any
Shareholder knows or has reason to be aware of any basis for the
same.
(l) Compliance with Laws and Other Instruments. Except as set forth
Seller's Disclosure Schedule, Seller has complied with all
existing laws, rules, regulations, ordinances, orders, judgments
and decrees now or hereafter applicable to its business,
properties or operations as presently conducted. Neither the
ownership nor use of Seller's properties nor the conduct of its
business conflicts with the rights of any other person, firm or
corporation or violates, or with or without the giving of notice
or the passage of time, or both, will violate, conflict with or
result in a default, right to accelerate or loss of rights under,
any terms or provisions of its certificate of incorporation or
by-laws as presently in effect, or any lien, encumbrance,
mortgage, deed of trust, lease, license, agreement,
understanding, law, ordinance, rule or regulation, or any order,
judgment or decree to which Seller is a party or by which it may
be bound or affected; and neither Seller nor any Shareholder is
aware of any proposed laws, rules, regulations, ordinances,
orders, judgments, decrees, governmental takings, condemnations
or other proceedings which would be applicable to its business,
operations or properties and which might adversely affect its
properties, assets, liabilities, operations or prospects, either
before or after the Closing.
(m) Title to Properties.
(i) Seller has good, marketable and insurable title to all the
properties and assets it owns or uses in its business or
purports to own, including, without limitation, those
reflected in its books and records and in the Balance Sheet
(except inventory sold after the Balance Sheet Date in the
ordinary course of business).
(ii) None of such properties and assets are subject to any
mortgage, pledge, lien, charge, security interest,
encumbrance, restriction, lease, license, easement,
liability or adverse claim of any nature whatsoever, direct
or indirect, whether accrued, absolute, contingent or
otherwise, except
(1) as expressly set forth in the Balance Sheet as securing
specific liabilities or as otherwise expressly permitted by
the terms hereof or
(2) those imperfections of title and encumbrances, if any, which
(a) are not substantial in character, amount or extent and do
not materially detract from the value of the properties
subject thereto,
(b) do not interfere with either the present and continued use
of such property or the conduct of Seller's normal
operations and
-16-
(c) have arisen only in the ordinary course of business.
(iii) All of the properties and assets owned, leased or used
by Seller are in good operating condition and repair, are
suitable for the purposes used, are adequate and sufficient
for all current operations of Seller and are directly
related to the business of Seller.
(n) Schedules.
(i) Seller's Disclosure Schedule includes a separate schedule
containing an accurate and complete list and description of:
(1) All real property owned by Seller or in which Seller has a
leasehold or other interest or which is used by Seller in
connection with the operation of its business, together with a
description of each lease, sublease, license, or any other
instrument under which Seller claims or holds such leasehold
or other interest or right to the use thereof or pursuant to
which Seller has assigned, sublet or granted any rights
therein, identifying the parties thereto, the rental or other
payment terms, expiration date and cancellation and renewal
terms thereof.
(2) As of a date no earlier than the Balance Sheet Date, all of
Seller's receivables (which shall include accounts receivable,
loans receivable and any advances), together with detailed
information as to each such listed receivable which has been
outstanding for more than 30 days.
(3) All machinery, tools, equipment, motor vehicles, rolling stock
and other tangible personal property (other than inventory and
supplies), owned, leased or used by Seller except for items
having a value of less than $10,000 which do not, in the
aggregate, have a total value of more than $400,000, setting
forth with respect to all such listed property a summary
description of all leases, liens, claims, encumbrances,
charges, restrictions, covenants and conditions relating
thereto, identifying the parties thereto, the rental or other
payment terms, expiration date and cancellation and renewal
terms thereof.
(4) All patents, patent applications, patent licenses, trademarks,
trademark registrations, and applications therefor, service
marks, service names, trade names, copyrights and copyright
registrations, and applications therefor, wholly or partially
owned or held by Seller or used in the operation of Seller's
business.
(5) All fire, theft, casualty, liability and other insurance
policies insuring Seller, specifying with respect to each such
policy the name of the insurer, the risk insured against, the
limits of coverage, the deductible amount (if any), the
premium rate and the date through which coverage will continue
by virtue of premiums already paid. Except as disclosed in
Seller's Disclosure Schedule, such policies are with reputable
insurers, provide adequate coverage for all normal risks
incident to Seller's assets, properties and business
operations and are in character and amount at least equivalent
to that carried by persons engaged in a business subject to
the same or similar perils or hazards.
(6) All sales agency or route distributorship agreements or
franchises or agreements providing for the services of an
independent contractor to which Seller is a party or by which
it is bound.
(7) All contracts, agreements, commitments or licenses relating to
patents, trademarks, trade names, copyrights, inventions,
processes, know-how, formulae or trade secrets to which Seller
is a party or by which it is bound.
(8) All loan agreements, indentures, mortgages, pledges,
conditional sale or title retention agreements, security
agreements, equipment obligations, guaranties, leases or lease
purchase agreements to which Seller is a party or by which it
is bound.
(9) All contracts, agreements and commitments, whether or not
fully performed, in respect of the issuance, sale or transfer
of the capital stock, bonds or other securities of Seller or
pursuant to which Seller has acquired any substantial portion
of its business or assets.
(10)All contracts, agreements, commitments or other understandings
or arrangements to which Seller is a party or by which it or
any of its property is bound or affected by excluding
(a) purchase and sales orders and commitments made in the
ordinary course of business involving payments or receipts
by Seller of less than $150,000 in any single case,
(b) contracts entered into in the ordinary course of business
and involving payments or receipts by Seller of less than
$150,000 in the case of any single contract but not more
than $500,000 in the aggregate, and
-17-
(c) contracts entered into in the ordinary course of business
which are terminable by Seller on less than 30 days'
notice without any penalty or consideration and involving
payments or receipts by Seller of less than $150,000 in
the case of any single contract but not more than $500,000
in the aggregate.
(11)All collective bargaining agreements, employment and
consulting agreements, executive compensation plans, bonus
plans, deferred compensation agreements, employee pension
plans or retirement plans, employee stock options or stock
purchase plans and group life, health and accident insurance
and other employee benefit plans, agreements, arrangements or
commitments, whether or not legally binding, including,
without limitation, holiday, vacation, Christmas and other
bonus practices, to which Seller is a party or is bound which
relate to the operation of Seller's business.
(12)The names and current annual salary rates of all persons
(including independent commission agents) whose annual
compensation (direct or indirect) from Seller is currently at
the rate of more than $75,000 per annum and showing separately
for each such person the amounts paid or payable as salary,
bonus payments and any indirect compensation for the year
ended December 31, 1998; and
(13)The names of all of Seller's directors and officers; the name
of each bank in which Seller has an account or safe deposit
box and the names of all persons authorized to draw thereon or
have access thereto, and the names of all persons, if any,
holding tax or other powers of attorney from Seller and a
summary of the terms thereof.
(ii) All of the contracts, agreements, leases, licenses and
commitments required to be listed on Seller's Disclosure
Schedule (other than those which have been fully performed)
are valid and binding, enforceable in accordance with their
respective terms, in full force and effect and, except as
otherwise specified in Seller's Disclosure Schedule, ,
Purchaser will from and after the Closing be entitled to the
full benefits thereof. Except as disclosed in Seller's
Disclosure Schedule, there is not under any such contract,
agreement, lease, license or commitment any existing
default, or event which, after notice or lapse of time, or
both, would constitute a default or result in a right to
accelerate or loss of rights, and none of such contracts,
agreements, leases, licenses or commitments is, either when
considered singly or in the aggregate with others, unduly
burdensome, onerous or materially adverse to Seller's
business, properties, assets, earnings or prospects or
likely, either before or after the Closing, to result in any
material loss or liability. None of Seller's existing or
completed contracts is subject to renegotiating with any
governmental body. True and complete copies of all such
contracts, agreements, leases, licenses and other documents
listed on Seller's Disclosure Schedule (together with any
and all amendments thereto) have been delivered to Purchaser
and initialed by Seller's Secretary and identified with a
reference to this Section of this Agreement. Nothing in this
clause (ii) shall detract from or limit the liabilities
which Purchaser is required to assume under Section 2(d).
(o) Intangible Property.
(i) Seller's Disclosure Schedule sets forth a complete list
and concise description of the following:
(1) all trademarks, service marks, trade names, label filings,
patents, copyrights, royalty rights, logos, applications
therefor and registrations thereof and inventions owned or
used (pursuant to license agreements or otherwise) by Seller
or any of its Subsidiaries in or applicable to the businesses
of Seller and its Subsidiaries (collectively, the "Proprietary
Rights"), and the jurisdictions in which the Proprietary
Rights have been registered, filed or issued;
(2) contracts, agreements or understandings pursuant to which
Seller or any of its Subsidiaries has authorized any person to
use any of the Proprietary Rights; and
(3) all research and development results, records of experiments,
scientific, technical, engineering and marketing data and
literature and other know-how, formulae and techniques,
recorded or available in any form whatsoever which are used in
connection with the operation of the businesses of Seller and
its Subsidiaries (Collectively, the "Trade Secrets").
(ii) The Proprietary Rights have been properly registered,
filed or issued in the offices and jurisdictions in which
such registration, filing or issuance is necessary to
protect the rights therein of Company and its Subsidiaries
for the conduct of their businesses, and all applicable fees
due and payable have been paid. Except as otherwise
indicated in Seller's Disclosure Schedule, Seller and its
Subsidiaries are the sole and exclusive owners of the
Proprietary Rights and the Trade Secrets and all rights
related thereto.
(iii) Except as set forth in Seller's Disclosure Schedule,
there are no claims or demands of any person pertaining to
the Proprietary Rights or the Trade Secrets or the rights of
Seller and its Subsidiaries thereunder, and no proceedings
have been instituted or are pending or, to the knowledge of
Seller, threatened which challenge the rights of Seller in
respect thereof, and none of the issued trademarks, service
marks, trade names, label filings, patents, copyrights,
logos, registrations thereof, or, as the case may be, the
rights granted to Seller in respect thereof and to be listed
in Seller's Disclosure Schedule,, infringes on or is being
infringed upon by others, and none is subject to any
outstanding order, decree, judgment, stipulation,
injunction, restriction or agreement restricting the scope
of the use by Seller.
-18-
(iv) Except as disclosed in Seller's Disclosure Schedule,
Seller is not infringing or violating, and during the past
five years, Seller has not infringed or violated, any
Proprietary Rights of others, nor used any confidential
information or trade secrets or patentable or unpatentable
inventions of any former employer of any employee of Seller.
(v) Except as is disclosed in Seller's Disclosure Schedule,
Seller has no knowledge of any patented device or
application therefor which could materially and adversely
affect the operation of the businesses of Seller, as now
conducted.
(vi) Except as indicated in Seller's Disclosure Schedule, the
Trade Secrets have been, and will not be, disclosed by
Seller to any person other than Purchaser and its agents and
representatives, and comprise all of the same necessary to
permit the continued operation of the businesses of Seller
and its Subsidiaries.
(p) No Guaranties. None of the obligations or liabilities of Seller
is guaranteed by any other person, firm or corporation, nor has
Seller guaranteed the obligations or liabilities of any other
person, firm or corporation.
(q) Inventory. All items of Seller's inventory and related supplies
(including raw materials, work-in-process and finished goods)
reflected on the Balance Sheet or thereafter acquired (and not
subsequently disposed of in the ordinary course of business) are
merchantable, or suitable and usable for the production or
completion of merchantable products, for sale in the ordinary
course of business at normal xxxx-ups, none of such items is
obsolete and each item of such inventory reflected in the Balance
Sheet and the books and records of Seller is so reflected on the
basis of a physical count and is valued at market in accordance
with generally accepted accounting principles consistently
applied.
(r) Receivables. All receivables of Seller (including accounts
receivable, loans receivable and advances) which are reflected in
the Balance Sheet, and all such receivables which will have
arisen since the date thereof, shall have arisen only from bona
fide transactions in the ordinary course of Seller's business and
shall be (or have been) fully collected when due, or in the case
of each account receivable within 120 days after it arose,
without resort to litigation and without offset or counterclaim,
in the aggregate face amounts thereof except to the extent of the
normal allowance for doubtful accounts with respect to accounts
receivable computed on a basis consistent with Seller's practices
to date. From and after the delivery of the March 1999 Audited
Balance Sheet, the reference to "Balance Sheet" in this Section
(r) shall be deemed to be a reference to the March 1999 Audited
Balance Sheet.
(s) Labor Matters. Except as set forth in Seller's Disclosure
Schedule, Seller is not a party to any collective bargaining
agreement and there are no material or formal complaints,
charges, cases or controversies or any conciliation agreement,
consent or decree pending or threatened Seller and any of its
employees acting individually or in concert and/or any
administrative agency of the United States government and no
organization is presently attempting to gain, petitioning for or
asserting representational status with respect to any group or
groups of employees of Seller, and Seller is in material
compliance with Federal and state laws respecting employment
practices, terms and conditions of employment, wages and hours,
and is not presently engaged in any unfair labor practice, There
is no labor strike or other labor dispute and there is no
complaint, proceeding or other action instituted under the Equal
Opportunity Act pending, threatened against Seller.
(t) Environmental Matters.
----------------------
(i) Seller is, and at all times has been, in material
compliance with, and has not been in violation of, any
federal, state, foreign, or local laws, statutes,
ordinances, regulations, rules and orders pertaining to the
environment, pollution and/or the health and safety of human
beings (collectively "Environmental Law"). Neither Seller
nor either Shareholder has any basis to expect or has
received, any actual or threatened order, notice, or other
communication from (A) any governmental body or private
citizen acting in the public interest, or (B) the current or
prior owner or operator of any facilities, of any actual or
potential violation or failure to comply with any
Environmental Law with respect to any of the properties or
assets (whether real, personal, or mixed) in which Seller
has or has had an interest, or with respect to any property
at or to which any hazardous or toxic waste or substance
("Hazardous Materials") was generated, manufactured,
refined, transferred, imported, used, or processed by
Seller, or from which Hazardous Materials have been
transported, treated, stored, handled, transferred,
disposed, recycled, or received.
(ii) To the knowledge of Seller and Shareholders, there are no
pending or threatened claims, encumbrances, or other
restrictions of any nature, resulting from any
environmental, health, and safety liabilities or arising
under or pursuant to any Environmental Law, with respect to
or affecting any of the facilities or any other properties
and assets (whether real personal or mixed) in which Seller
has or had an interest.
-19-
(iii) Neither any Shareholder nor Seller has permitted or
conducted, or is aware of, any Hazardous Materials activity
conducted with respect to the properties or assets (whether
real, personal, or mixed) in which Seller has or had an
interest.
(iv) To the knowledge of Seller and the Shareholders, there
has been no release or threat of release of any Hazardous
Materials at or from the locations where any Hazardous
Materials were generated, manufactured, refined,
transferred, produced, imported, used or processed from or
by the properties and assets (whether real, personal, or
mixed) in which Seller has or had an interest.
(v) Seller has delivered to Purchaser true and complete copies
and results of any reports, studies, analyses, tests, or
monitoring possessed or initiated by Seller pertaining to
Hazardous Materials or Hazardous Materials activities in,
on, or under the properties of Seller, or concerning
compliance by Seller with respect to Environmental Laws.
(u) Business Description. Seller's Disclosure Schedule contains an
accurate and substantially complete summary description of
Seller's business and the general development of such business
during the past three years, including, without limitation, (i)
the percentage of total sales and revenues and income
attributable to each line of business of Seller for its last two
fiscal years which accounted for 10% or more of Seller's total
sales and revenues or income before taxes, (ii) the extent to
which Seller makes sales to or derives revenues or makes
purchases from sources located in foreign countries and (iii) the
name of each customer or supplier of Seller, the loss of which
might materially and adversely affect Seller's business.
(v) Records. The books of account, minute books, stock certificate
books and stock transfer ledgers of Seller are complete and
correct in all material respects, and there have been no
transactions involving the business of Seller which properly
should have been set forth therein and which have not been
accurately so set forth.
(w) Proceedings re Employee Benefit Plans. There has not been any (i)
termination of any "defined benefit plan" within the meaning of
the Employee Retirement Income Security Act of l974 ("ERISA")
maintained by Seller or any person, firm or corporation
("Affiliate") which is under "common control" (within the meaning
of Section 4001(b) of ERISA) with Seller, or (ii) commencement of
any proceeding to terminate any such plan pursuant to ERISA, or
otherwise or (iii) written notice given to Seller or any
Affiliate of the intention to commence or seek the commencement
of any such proceeding. All accrued benefits under each pension
plan of Seller covering employees who are to be transferred to
the employ of Purchaser following the Closing ("Transferred
Employees") shall be fully provided for as of the date of the
Closing by any one or more of (i) annuity contracts for the
benefit of such Transferred Employees issued by an insurance
company acceptable to Purchaser, (ii) the transfer to a successor
plan established or maintained by Purchaser for the benefit of
such Transferred Employees of assets having a fair market value
of not less than the present value of all such accrued benefits
and/or (iii) in the case of any multi-employer plan or any single
employer plan which Purchaser shall assume, by the fair market
value of the assets of such plan as of the date of the Closing
being not less than the present value of all accrued benefits
under such plan at such date. The amount of accrued benefits and
the present value thereof under each such pension plan shall be
computed by Purchaser's actuary on the basis of "Acceptable
Actuarial Assumptions," which term is defined to mean actuarial
assumptions and methods to which Purchaser consents in writing
(which consent shall not be unreasonably withheld). Seller has no
knowledge or information of any planned or required increase in
the level of contributions or benefits under any such pension
plan, or of any circumstances which would suggest that such an
increase may be required, or that any union representing
employees covered under any such plan will attempt to negotiate
for such an increase. In the case of each pension plan to which
Seller makes contributions on behalf of Transferred Employees
under which contributions are fixed pursuant to a collective
bargaining agreement, the level of contributions currently
provided for in the applicable collective bargaining agreement is
sufficient to meet the funding requirements of ERISA applicable
to such plan, based on Acceptable Actuarial Assumptions. Each
funded pension plan maintained by Seller for one or more
Transferred Employees constitutes a qualified plan under section
40l(a) of the Internal Revenue Code of l954 and meets all
applicable requirements of ERISA.
(x) Absence of Certain Business Practices. Neither Seller nor any
officer, employee or agent of Seller, nor any other person acting
on its behalf, has, directly or indirectly, within the past five
years given or agreed to give any gift or similar benefit to any
customer, supplier, governmental employee or other person who is
or may be in a position to help or hinder the business of Seller
(or assist Seller in connection with any actual or proposed
transaction) which (A) might subject Seller to any damage or
penalty in any civil, criminal or governmental litigation or
proceeding, (B), if not given in the past, might have had an
adverse effect on the assets, business or operations of Seller as
reflected in the Financial Statements or (C), if not continued in
the future, might adversely affect Seller's assets, business,
operations or prospects or which might subject Seller to suit or
penalty in any private or governmental litigation or proceeding.
(y) Disclosure. No representation or warranty by Seller or any
Shareholder contained in this Agreement nor any statement or
certificate furnished or to be furnished by Seller or any
Shareholder to Purchaser or its representatives in connection
herewith or pursuant hereto contains or will contain any untrue
statement of a material fact, or omits or will omit to state any
material fact required to make the statements herein or therein
contained not misleading or necessary in order to provide a
prospective purchaser of the business of the Seller with adequate
information as to Seller and its condition (financial and
otherwise), properties, assets, liabilities, business and
prospects, and Seller and the Shareholders have disclosed to
Purchaser in writing all material adverse facts known to them
relating to the same. The representations and warranties
contained in this Agreement shall not be affected or deemed
waived by reason of the fact that Purchaser and/or its
representatives knew or should have known that any such
representation or warranty is or might be inaccurate in any
respect.
-20-
(z) Certain Representations
(i) No supplier is considering termination, non-renewal or
adverse modification of its agreement with Seller, and the
transactions contemplated by this Agreement will not have a
material adverse effect on Seller's relationships with its
suppliers and customers.
(ii) Within the past five years Seller has not entered into
any agreement with, or been investigated by, any
governmental authority, community group or other third party
that could restrict the operation of its business.
(iii) No key employee of Seller has indicated that he is
considering terminating his employment.
(iv) No shareholder has any direct or indirect interest of any
kind in any business or entity which is competitive with
Seller.
7. Representations And Warranties By Parent And Purchaser. Parent and
------------------------------------------------------
Purchaser jointly and severally represent and warrant to Seller and the
Shareholders as follows:
(a) Organization. Each of Parent and Purchaser is a corporation duly
organized, validly existing and in good standing under the laws
of New York and has full corporate power and authority to enter
into this Agreement and the related agreements referred to herein
and to carry out the transactions contemplated by this Agreement
and to carry on its business as now being conducted and to own,
lease or operate its properties.
(b) Authorization and Approval of Agreement. All proceedings or
corporate action required to be taken by Parent and Purchaser
relating to the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby shall have
been taken at or prior to the execution of this Agreement.
(c) Execution, Delivery and Performance of Agreement. Neither the
execution, delivery nor performance of this Agreement by Parent
and Purchaser will, with or without the giving of notice or the
passage of time, or both, conflict with, result in a default,
right to accelerate or loss of rights under, or result in the
creation of any lien, charge or encumbrance pursuant to, any
provision of Parent's or Purchaser's certificate of incorporation
or by-laws or any franchise, mortgage, deed of trust, lease,
license, agreement, understanding, law, ordinance, rule or
regulation or any order, judgment or decree to which Parent or
Purchaser is a party or by which it may be bound or affected.
Parent and Purchaser each has full power and authority to enter
into this Agreement and to carry out the transactions
contemplated hereby, all proceedings required to be taken by it
to authorize the execution, delivery and performance of this
Agreement the agreements relating hereto have been properly taken
and this Agreement constitutes a valid and binding obligation of
Parent and Purchaser.
(d) Litigation. There is no legal action, suit, arbitration,
governmental investigation or other legal or administrative
proceeding, nor any order, decree or judgment in progress,
pending or in effect, or to the knowledge of Parent and Purchaser
threatened, against or relating to Parent or Purchaser in
connection with or relating to the transactions contemplated by
this Agreement, and neither Parent nor Purchaser knows or has any
reason to be aware of any basis for the same.
(e) SEC Filings Complete. Parent's most recent Form l0-K and all
intervening Form 8-K's and Form 10-Q's, and Parent's most recent
annual meeting proxy statement and most recent registration
statement filed under the Securities Act of 1933 (the "l933
Act"), all as filed with the Securities and Exchange Commission
("SEC"), do not contain a misstatement of a material fact or an
omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading as of the
time such document was filed or (if filed under the 0000 Xxx)
became effective. Since the filing of the most recent Form 10-K,
no other document has been required to be filed by Parent with
the SEC which has not been filed, and no event or transaction has
occurred which will hereafter be required to be disclosed by
Parent in a Form 10-Q, Form 8-K or similar filing except as
disclosed herein.
8. Conduct Of Business Prior To Closing.
-------------------------------------
(a) Prior to the Closing, Seller shall conduct its business and
affairs only in the ordinary course and consistent with its prior
practice and shall maintain, keep and preserve its assets and
-21-
properties in good condition and repair and maintain insurance
thereon in accordance with present practices, and Seller and
Shareholders will use their best efforts to preserve the business
and organization of Seller intact, to keep available to Purchaser
the services of Seller's present officers and employees, to
preserve for the benefit of Purchaser the goodwill of Seller's
suppliers and customers and others having business relations with
it and to cooperate with Purchaser in its efforts to obtain the
financing of the cash portion of the purchase price in accordance
with the provisions of this Agreement. Seller shall give
Purchaser prompt written notice of any change in any of the
information contained in the representations and warranties made
by Seller in this Agreement which occurs prior to the Closing.
Without limiting the generality of the foregoing, prior to the
Closing Seller will not without Purchaser's prior written
approval:
(i) change its certificate of incorporation or by-laws or
merge or consolidate or obligate itself to do so with or
into any other entity;
(ii) enter into any contract, agreement, commitment or other
understanding or arrangement except for those of the type
which would not have to be listed and described under
subparagraph (x) of Section 6(n) above; or
(iii) Perform, take any action or incur or permit to exist any
of the acts, transactions, events or occurrences of the type
described in subparagraphs (i), (ii), (iii), (iv), (v),
(viii), (ix), (x), (xi), (xii), (xiii), (xiv), (xvi) or
(xvii) of Section 6(j) of this Agreement which would have
been inconsistent with the representations and warranties
set forth therein had the same occurred after the Balance
Sheet Date and prior to the date hereof.
(b) Access To Information And Documents. Seller will give Purchaser
-----------------------------------
and Purchaser's attorneys, accountants and other representatives
full access to Seller's personnel and all properties, documents,
contracts, books and records of Seller and will furnish Purchaser
with copies of such documents (certified by Seller's officers if
so requested) and with such information with respect to the
affairs of Seller as Purchaser may from time to time request, and
Purchaser will not improperly disclose the same prior to the
Closing. Any such furnishing of such information to Purchaser or
any investigation by Purchaser shall not affect Purchaser's right
to rely on any representations and warranties made in this
Agreement.
(c) No Solicitations or Negotiations. Neither Seller nor any of its
employees, representatives or agents will, directly or
indirectly, solicit or participate in discussions or negotiations
with, provide any non-public information concerning the
businesses, properties or assets of Seller or the transactions
contemplated hereby to or cooperate with any corporation,
partnership, person or other entity or group concerning any
merger, sale of substantial assets, sale of a substantial equity
interest or similar transaction involving Seller. In view of the
difficulties in assessing damages for any breach of the
provisions of this Section, and without limiting any other right
or remedy for any breach of any provision of this Agreement
(including without limitation the right Purchaser and Parent to
decrees of specific performance without posting bond or other
security), the parties agree that as liquidated damages for the
breach of the provisions of this Section (c), Seller and
Shareholders shall jointly and severally pay to Purchaser
$250,000, plus any attorneys and costs incurred by Parent and
Purchaser in enforcing such provisions or in seeking to collect
such liquidated amount.
9. Conditions Precedent To Parent's And Purchaser's Obligations. All
------------------------------------------------------------
obligations of Parent and Purchaser hereunder are subject at the option of
Purchaser, to the fulfillment of each of the following conditions at or
prior to the Closing, and Seller and Shareholders shall exert their best
efforts to cause each such condition to be so fulfilled as soon as
possible:
(a) All representations and warranties of Seller and the Shareholders
contained herein or in any document delivered pursuant hereto
shall be true and correct in all material respects when made and
shall be deemed to have been made again at and as of the date of
the Closing, and shall then be true and correct in all material
respects except for changes in the ordinary course of business
after the date hereof in conformity with the covenants and
agreements contained herein.
(b) All covenants, agreements and obligations required by the terms
of this Agreement to be performed by Seller or by Shareholders at
or before the Closing shall have been duly and properly performed
in all material respects.
(c) Since the date of this Agreement there shall not have occurred
any material adverse change in the condition (financial or
otherwise), business, properties, assets or prospects of Seller.
(d) There shall be delivered to Purchaser a certificate executed by
the President and Secretary of Seller and by each Majority
Shareholder, individually, dated the date of the Closing,
certifying that the conditions set forth in paragraphs (a), (b)
and (c) of this Section 9 have been fulfilled.
(e) All documents required to be delivered to Purchaser at or prior
to the Closing shall have been so delivered.
(f) Purchaser shall have received an opinion of Seller's counsel,
dated the date of the Closing, substantially in accordance with
an Exhibit to this Agreement.
-22-
(g) Seller shall have obtained written consents to the transfer or
assignment to Purchaser of all consignment agreements, licenses,
leases and other material contracts of Seller (other than
immaterial purchase and sales orders in the ordinary course of
business) where the consent of any other party to any such
contract may, in the opinion of Purchaser's counsel, be required
for such assignment or transfer.
(h) The conditions referred to in Section 4 shall have been
satisfied.
(i) The State of New Jersey shall have issued a letter of
non-applicability under the Industrial Site Recovery Act for all
of the premises subject to the Affiliated Leases
10. Conditions Precedent To Seller's And Shareholders' Obligations. All
---------------------------------------------------------------
obligations of Seller and Shareholders at the Closing are subject, at the
option of Seller, to the fulfillment of each of the following conditions at
or prior to the Closing, and Purchaser shall exert its best efforts to
cause each such condition to be so fulfilled as soon as possible:
(a) All representations and warranties of Purchaser contained herein
or in any document delivered pursuant hereto shall be true and
correct in all material respects when made and as of the Closing.
(b) All obligations required by the terms of this Agreement to be
performed by Purchaser at or before the Closing shall have been
duly and properly performed in all material respects.
(c) There shall be delivered to Seller a certificate executed by the
President and Secretary of Purchaser, dated the date of the
Closing, certifying that the conditions set forth in paragraphs
(a) and (b) of this Section have been fulfilled.
(d) Seller shall have received an opinion of Purchaser's counsel,
dated the date of the Closing, substantially in accordance with
an Exhibit to this Agreement.
11. Indemnification.
---------------
(a) Seller hereby undertakes and agrees to indemnify Purchaser (and
its shareholders, officers, and directors and their respective
successors, heirs and assigns) and hold it and them harmless
against and in respect of (and shall on demand reimburse
Purchaser for) the following:
(i) [omitted]
(ii) any and all loss, liability or damage suffered or
incurred by Purchaser by reason of any untrue
representation, breach of warranty or non-fulfillment of any
covenant by Seller or any Shareholder contained herein or in
any certificate, document or instrument delivered to
Purchaser pursuant hereto or in connection herewith;
(iii) any and all loss, liability or damage suffered or
incurred by Purchaser in respect of or in connection with
any liabilities of Seller which Purchaser is not assuming
under Section 2(c);
(iv) the amount of any and all receivables of Seller which
(despite Purchaser's reasonable efforts, not including
resort to litigation) are not collected in accordance with
the provisions contained in Section 6(r);
(v) any and all loss, liability or damage suffered or incurred
by Purchaser by reason of or in connection with any claim
for finder's fee or brokerage or other commission arising by
reason of any services alleged to have been rendered to or
at the instance of Seller or any Shareholder with respect to
this Agreement or any of the transactions contemplated
hereby (reference is made to Section 3(c) for special
provisions relating to brokerage fees payable to Xxxxxxxxx
Company);
(vi) any and all loss, liability or damage suffered or
incurred by Purchaser by reason of any claim for severance
pay accruing or incurred at any time on or after the date
hereof except to the extent any one or more specific
employees are discharged prior to the Closing hereunder with
the prior written consent of Purchaser and such consent
contains the name(s) of such specific employee(s); and
(vii) any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs, and expenses,
including, without limitation, legal fees and expenses,
incident to any of the foregoing or in enforcing this
indemnity.
(b) Purchaser hereby agrees to indemnify and hold Seller and each
Shareholder harmless from, against and in respect of (and shall
on demand reimburse them for):
(i) Any and all loss, liability or damage resulting from any
untrue representation, breach of warranty or non-fulfillment
of any covenant or agreement by Purchaser contained herein
or in any certificate, document or instrument delivered to
Seller hereunder;
-23-
(ii) Any and all liabilities or obligations of Seller
specifically assumed by Purchaser pursuant to this
Agreement; and
(iii) Any and all actions, suits, proceedings, claims,
demands, assessments, judgments, costs and expenses,
including, without limitation, legal fees and expenses,
incident to any of the foregoing or in enforcing this
indemnity.
(c) Upon Seller's payment to Purchaser of the face amount of any
uncollected receivable by reason of the failure of such
receivable to be fully collected as warranted pursuant to the
provisions contained in Section 6(r) Purchaser shall assign such
receivable to Seller, without recourse.
(d) The following limitations shall apply to any and all claims for
indemnification by any party under this Agreement:
(i) The representations and warranties of the parties
contained in this Agreement (including the Disclosure
Schedule) shall survive the Closing until March 31, 2000,
provided that if written notice of a claim meeting the
requirements of this Section has been made during such
period, the relevant representations shall survive as to
such claim until the claim has been finally resolved.
Notwithstanding the foregoing, the representations and
warranties set forth in Sections 6(i), 6(t) and 11(f) shall
survive until 30 days after the applicable statutes of
limitation.
(ii) No indemnified party shall be entitled to assert any
right to indemnification hereunder unless and until the
aggregate of all claims for indemnification equals or
exceeds $50,000. Once such claims equal or exceed the
$50,000 threshold, such indemnified party shall be entitled
to the full amount of all indemnified claims, provided that
no claim for indemnification hereunder may be asserted by an
indemnified party unless such claim (or series of related
claims) equals or exceeds $10,000 individually.
(e) Indemnity Procedure.
(i) In the event Purchaser seeks indemnification pursuant to
this Agreement, Purchaser shall give prompt notice to the
party or parties from whom such indemnification is sought
(the "Indemnifying Party") of the assertion of any claim, or
the commencement of any action or proceeding, in respect of
which indemnity may be sought hereunder.
(ii) The Indemnifying Party shall have the right to, and shall
at the request of Purchaser, assume the defense of any such
action or proceeding at its own expense.
(iii) In any such action or proceeding, Purchaser shall have
the right to retain its own counsel; but the fees and
expenses of such counsel shall be at its own expense unless
(i) the Indemnifying Party and Purchaser shall have mutually
agreed to the retention of such counsel or (ii) the named
parties to any suit, action or proceeding (including any
impleaded parties) include both the Indemnifying Party and
the Purchaser and representation of all parties by the same
counsel would be inappropriate due to actual or potential
conflict of interests between them.
(iv) An Indemnifying Party shall not be liable under this
Agreement for any settlement effected without its consent of
any claim, litigation or proceeding in respect of which
indemnity may be sought hereunder.
(v) The Indemnifying Party may settle any claim without the
consent of Purchaser, but only if the sole relief awarded is
monetary damages that are paid in full by the Indemnifying
Party. Purchaser shall, subject to its reasonable business
needs, use reasonable efforts to minimize the
indemnification sought from the Indemnifying Party under
this Agreement.
(f) Special Provisions Regarding Asbestos Claims.
(i) Seller and Majority Shareholders, jointly and severally,
shall fully indemnify, protect, reimburse, and hold harmless
Purchaser from and against any and all damages, liabilities
and claims for personal injury due to, or alleged to be due
to, exposure to asbestos in connection with Seller's
business, operations or premises at any time prior to the
Closing (an "asbestos claim").
(ii) If an asbestos claim is made against Purchaser, Purchaser
shall, within ten days after receiving written notice of
such claim, give notice to Seller in the manner provided
elsewhere in this Agreement for notices hereunder.
(iii) If, pursuant to Section (e), Seller assumes the defense
of an asbestos claim at its own expense, then (x) it shall
within 20 days inform Purchaser of such assumption in
writing, and (y) notwithstanding any contrary provision in
Section (e), Seller shall not incur any expense for
Purchaser's counsel.
(iv) The provisions of Sections (e)(iii) through (v) shall
also apply to asbestos claims.'
-24-
(g) Certain Additional Provisions.
(i) Purchaser shall not be deemed to have suffered a loss by
reason of any liability which should have been disclosed
pursuant to this Agreement but was not disclosed, if:
(i) The failure to make such disclosure was not
deliberate or in bad faith;
(ii) Such liability is discovered by Purchaser before the
first anniversary of the date of this Agreement;
(iii)Purchaser obtains a benefit from such liability in
an amount at least equal to the amount of such
liability; and
(iv) The amount of such liability does not exceed $20,000.
(a) Should the March 31, 1999 Audited Balance Sheet fail to
disclose a receivable which is recovered by Purchaser and
which should have been reflected in such Balance Sheet and
is not a Zero Value Asset (as defined in Section 3(e)),
Purchaser shall pay such recovery over to Seller
12. Releases From Escrow.
--------------------
(a) In the event that Purchaser is entitled to indemnification
hereunder in any amount and any amounts are then held in escrow
by the Escrow Agent under the Escrow Agreement, Seller and
Shareholders shall join with Purchaser in a written direction to
the Escrow Agent to release such amount to Purchaser.
(b) On the first anniversary of the Closing, Purchaser shall join
with Seller and Shareholders in a written direction to the Escrow
Agent to release to Seller all amounts then held in escrow
(together with any earnings thereon) which Escrow Agent is not
then required to release to Purchaser and which are not then
subject to a dispute under Section 12(c).
(c) In the event that there is any dispute on whether any party is
required to sign any direction to the Escrow Agent hereunder,
such dispute shall be resolved exclusively by arbitration by the
American Arbitration Association in New York City. In the event
that the parties agree that a direction to the Escrow Agent is
required to a given extent but dispute whether such direction is
required for any excess amount, then the parties shall execute
such direction for to the given amount as to which there is no
dispute, and the dispute on the excess amount shall be submitted
to arbitration as aforesaid.
(d) Seller and Majority Shareholders shall be jointly and severally
liable, and the Other Shareholders shall be severally liable, for
any indemnification obligation or obligations to the extent the
same then exceeds amounts then held in escrow by the Escrow
Agent. In no event shall any Other Shareholder be obligated to
indemnify Purchaser for a representation or warranty which was
true to the best of his or her knowledge.
13. BULK SALES COMPLIANCE. Purchaser hereby waives compliance by Seller with the
---------------------
provisions of the Bulk Sales Law of any state, and Seller warrants and agrees
to pay and discharge when due all claims of creditors which could be asserted
against Purchaser by reason of such non-compliance to the extent that such
liabilities are not specifically assumed by Purchaser under this Agreement.
Seller and each of the Majority Shareholders jointly and severally, and each
of the Other Shareholders severally, hereby indemnify and agree to hold
Purchaser harmless from, against and in respect of (and shall on demand
reimburse Purchaser for) any loss, liability, cost or expense, including,
without limitation, attorneys' fees, suffered or incurred by Purchaser by
reason of the failure of Seller to pay or discharge such claims.
14. TERMINATION. This Agreement may, by notice given prior to the Closing, be
terminated:
(a) by Purchaser if a material breach of any provision of this
Agreement has been committed by Seller or the Shareholders and
such breach has not been waived;
(b) by Seller if material breach of any provision of this Agreement
has been committed by Purchaser and such breach has note been
waived;
(c) by mutual consent of the parties;
(d) by either Purchaser or Seller if the Closing has not occurred on
or before July 31, 1999 or such later date as Seller and
Purchaser may agree upon. In such event, each party shall bear
its own expenses except as set forth in Section 3(a)(iv). Nothing
in this Section shall relieve any party from any breach by it of
any obligations under this Agreement, including without
limitation, the breach of such party's obligation to use its best
efforts to cause all conditions to the Closing to be satisfied as
soon as possible; and
-25-
(e) by either Purchaser or Seller if Net Book Value is less than
$7,500,000.
15. Nature Of Representations And Warranties, Etc.
(a) Each statement, representation, warranty, indemnity, covenant and
agreement made by Seller or any Majority Shareholder in this
Agreement or in any document, certificate or other instrument
delivered by or on behalf of Seller or any Majority Shareholder
pursuant to this Agreement or in connection herewith shall be
deemed the joint and several statement, representation, warranty,
indemnity, covenant and agreement of Seller and each such
Shareholder.
(b) Each statement, representation, warranty, indemnity, covenant and
agreement made by any Other Shareholder in this Agreement or in
any document, certificate or other instrument delivered by or on
behalf of Seller or any Other Shareholder pursuant to this
Agreement or in connection herewith shall be deemed the several
statement, representation, warranty, indemnity, covenant and
agreement of such Other Shareholder.
(c) For all purposes of this Agreement, the several liability of an
Other Shareholder constitutes a portion of the total liability
which is equal to the percentage ownership of such Other
Shareholder in Seller as of the Closing. By way of example,
assume that there is a $1,000 liability to Purchaser for which
Seller and the Majority Shareholders are jointly severally liable
and for which the Other Shareholders are severally liable.
Purchaser may proceeds against any one or more of Seller and each
Majority Shareholder for the full $1,000 amount, and Purchaser
may also proceed against each Other Shareholder for a percentage
of $1,000 which is equal to such Other Shareholder's percentage
ownership in Seller as of the Closing. Purchaser would not be
permitted to realize an aggregate amount in excess of $1,000 from
Seller and all Shareholders.
(d) All covenants and agreements made by each of the parties hereto
shall survive the Closing. Representations and warranties shall
survive the Closing only to the extent provided in Section 11(d).
16. Notices. Any and all notices or other communications required or permitted
-------
to be given under any of the provisions of this Agreement shall be in
writing and shall be deemed to have been duly given when personally
delivered or when forwarded for priority delivery by Federal Express or
other recognized courier, addressed to the parties at the addresses set
forth above (or at such other address as any party may specify by notice to
all other parties given as aforesaid), together with a copy to their
respective counsel, who are X. Xxxxxxx Xxxxxxx, 000, Xxxxx Xxxx, Xxxxxx,
Xxx Xxxx 00000 for Seller and Shareholders, and Xxxxx X. Xxxxxx, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 for Purchaser and Parent.
17. Miscellaneous.
-------------
(a) This writing constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified,
amended or terminated except by a written agreement specifically
referring to this Agreement signed by all of the parties hereto.
It supersedes all prior agreements, instruments and documents
between Purchaser on the one hand and Seller and the Shareholders
on the other hand, including the letter of intent dated December
1, 1998.
(b) In the event of any controversy, claim or dispute between the
parties hereto arising out of or relating to this Agreement or
any of the documents provided for herein, or the breach thereof,
the prevailing party shall be entitled to recover from the losing
party reasonable attorney's fees, expenses and costs.
(c) No waiver of any breach or default hereunder shall be considered
valid unless in writing and signed by the party giving such
waiver, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
(d) This Agreement shall be binding upon and inure to the benefit of
each corporate party hereto, its successors and assigns, and each
individual party hereto and his heirs, personal representatives,
successors and assigns.
(e) The paragraph headings contained herein are for the purposes of
convenience only and are not intended to define or limit the
contents of said paragraphs.
(f) Each party hereto shall cooperate, shall take such further action
and shall execute and deliver such further documents as may be
reasonably requested by any other party in order to carry out the
provisions and purposes of this Agreement.
(g) Seller will pay all sales, transfer and documentary taxes, if
any, payable in connection with the sale, conveyances,
assignments, transfers and deliveries to be made to Purchaser
hereunder.
(h) This Agreement may be executed in one or more counterparts, all
of which taken together shall be deemed one original.
(i) This Agreement and all amendments thereof shall be governed by
and construed in accordance with the law of the State of New
Jersey applicable to contracts made and to be performed therein.
-26-
(j) Except where this Agreement provides for arbitration (in which
case judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof), the parties
consent to the exclusive jurisdiction of the State and Federal
courts sitting in New York in any action arising out of or
connected in any way with this Agreement, and the parties further
agree that the service of process or of any other papers upon
them or any of them in the manner provided for notices hereunder
shall be deemed good, proper and effective service upon them. By
execution and delivery of this Agreement, each party (i) accepts,
generally and unconditionally, the exclusive jurisdiction of such
courts and related appellate courts, and irrevocably agrees to be
bound by any judgement rendered thereby in any such action, suit
or proceeding, and (ii ) irrevocably waives any objection it may
now or hereafter have as to the venue of any such action, suit or
proceeding brought in such a court or that such court is an
inconvenient forum. Each party hereto further agrees that the
service of process or of any other papers upon it or him in the
manner provided for notices hereunder shall be deemed good proper
and effective service upon it or him.
(k) Except as required by law and then only after discussion with the
other parties, until the Closing no party to this Agreement shall
make any public announcements in respect of this Agreement or the
transactions contemplated hereby or otherwise communicate with
any news media about the same, without first consulting with the
other parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
COLONIAL COMMERCIAL CORP.
By: /S/ XXXXX X. XXXXXXX, EXEC. V.P.
--------------------------------
COLONIAL COMMERCIAL SUB CORP.
By:/S/ XXXXX X. XXXXXXX, V.P.
--------------------------
UNIVERSAL SUPPLY GROUP, INC.
By:/S/ XXXXXXX XXXXXX, PRES.
-------------------------
SHAREHOLDERS:
/S/ XXXX X. XXXXXXXXXXX
-----------------------
Xxxx X. Xxxxxxxxxxx
/S/ XXXX X. XXXXXXXXXXX
-----------------------
Xxxx X. Xxxxxxxxxxx
/S/ XXXX X. XXXXXXXXXXX, P.O.A.
-------------------------------
Xxxxx Xxxxxxxxxxx
/S/ XXXX X. XXXXXXXXXXX, P.O.A.
-------------------------------
Xxxx Xxxxxxxxxxx
/S/ XXXX X. XXXXXXXXXXX, P.O.A.
-------------------------------
Xxxxxxx XxXxxxx
/S/ XXXX X. XXXXXXXXXXX, P.O.A.
-------------------------------
Xxxx X. Xxxxxxxxxxx
/S/ XXXX X. XXXXXXXXXXX, P.O.A.
-------------------------------
Xxxxx X. Xxxxxxxxx
/S/ XXXX X. XXXXXXXXXXX, P.O.A.
-------------------------------
Xxxxx X. Xxxxx
/S/ XXXX X. XXXXXXXXXXX, P.O.A.
-------------------------------
Xxxx X. Xxxxxxxxxxx
/S/ XXXX X. XXXXXXXXXXX, P.O.A.
-------------------------------
Xxxxx X. Xxxxxx
-27-
