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EXHIBIT 10.12
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ASSET PURCHASE AGREEMENT
dated as of July 23, 1998
by and between
TRI-STATE OUTDOOR MEDIA GROUP, INC.,
AND
XXXXX COMPANY, INC.
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INDEX
1. DEFINITIONS......................................................1
2. PURCHASE AND SALE OF THE ASSETS; CLOSING.........................1
2.1 Agreement to Purchase and Sell............................1
2.2 Purchased Assets..........................................1
2.3 Agreement to Assume Certain Liabilities...................2
2.4 Excluded Liabilities......................................3
2.5 Closing...................................................3
2.6 Purchase Price............................................3
2.7 Transactions at the Closing...............................4
2.8 Third Party Consents......................................4
3. REPRESENTATIONS AND WARRANTIES OF SELLER.........................4
3.1 Organization and Good Standing............................5
3.2 Authority; No Conflict....................................5
3.3 Solvency..................................................6
3.4 Books and Records.........................................6
3.5 Structures................................................6
3.6 Permits...................................................6
3.7 Site Leases and Advertising Contracts.....................6
3.8 Omitted...................................................7
3.9 Title, Encumbrances.......................................7
3.10 Financial Statements......................................7
3.11 Taxes.....................................................8
3.12 Compliance with Legal Requirements........................8
3.13 Legal Proceedings; Orders.................................8
3.14 Other Contracts...........................................8
3.15 Insurance.................................................8
3.16 Environmental Matters.....................................8
3.17 Intangible Property.......................................9
3.18 Relationships with Affiliates.............................9
3.19 Brokers or Finders........................................9
3.20 Employee Benefits Matters.................................9
3.21 Bulk Sales...............................................10
3.22 Employees; Labor Matters.................................10
3.23 Indebtedness, Encumbrances and Security Interests........10
3.24 Omitted..................................................11
3.25 Billboard Income.........................................11
3.26 Disclosure...............................................11
4. REPRESENTATIONS AND WARRANTIES OF BUYER.........................11
4.1 Organization and Good Standing...........................11
4.2 Authority; No Conflict...................................11
4.3 Certain Proceedings......................................11
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4.4 Brokers or Finders......................................12
5. COVENANTS OF SELLER.............................................12
5.1 Access and Investigation................................12
5.2 Due Diligence...........................................12
5.3 Operation of the Purchased Assets.......................12
5.4 Best Efforts............................................12
5.5 Negative Covenant.......................................13
5.6 Required Approvals and Consents.........................13
5.7 Notification............................................13
5.8 No Negotiation..........................................13
5.9 Tax Clearance...........................................13
5.10 Maintenance of Permits..................................13
6. COVENANTS OF BUYER..............................................14
6.1 Required Approvals......................................14
6.2 Best Efforts............................................14
6.3 Notification............................................14
7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE.............15
7.1 Accuracy of Representations.............................15
7.2 Seller's Performance....................................15
7.3 Consent...................................................
7.4 Additional Documents....................................15
7.5 No Proceedings..........................................15
7.6 No Prohibition..........................................16
7.7 No Material Adverse Change..............................16
7.8 Due Diligence...........................................16
7.9 Satisfaction of Indebtedness............................16
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE............16
8.1 Accuracy of Representations.............................16
8.2 Buyer's Performance.....................................16
8.3 Additional Documents....................................16
8.4 No Proceedings..........................................17
8.5 No Prohibition..........................................17
9. TERMINATION.....................................................17
9.1 Termination Events......................................17
9.2 Effect of Termination...................................17
10. IDENTIFICATION; REMEDIES........................................18
10.1 Indemnification and Payment of Damages by
Seller and the Indemnifying Stockholders..................18
10.2 Indemnification and Payment of Damages by Buyer...........18
10.3 Procedure for Indemnification Third Party Claims..........19
10.4 Procedure for Indemnification Other Claim.................20
10.5 Survival/Limitations......................................20
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11. NON-COMPETITION AND NON-SOLICITATION..........................20
11. Non-Competition...........................................20
11.2 Non-Solicitation..........................................20
11.3 Enforcement...............................................20
11.4 Survival..................................................21
12. OMITTED.........................................................21
13. GENERAL PROVISIONS..............................................21
13.1 Expenses................................................21
13.2 Headings; Construction..................................21
13.3 Public Announcements; Confidentiality...................21
13.4 Availability of Equitable Remedies......................22
13.5 Notices.................................................22
13.6 Further Assurances......................................23
13.7 Waiver..................................................23
13.8 Entire Agreement and Modification.......................23
13.9 Assignments, Successors, and No Third-Party Rights......23
13.10 Severability............................................24
13.11 Risk of Loss............................................24
13.12 Post-Closing Access.....................................24
13.13 Applicable Law and Venue................................24
13.14 Counterparts............................................24
14. OMITTED.........................................................24
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EXHIBITS
Exhibit A - Definitions
Exhibit B - Xxxx of Sale, Assignment and Assumption Agreement
Exhibit C - Areas of Non-Competition
Exhibit D - Parcel Lease
Exhibit E - Seller's Compliance Certificate
Exhibit F - Opinion of Seller's Counsel
Exhibit G - Buyer's Compliance Certificate
Exhibit H - Opinion of Buyer's Counsel
SCHEDULES
Schedule 2.2(a) - Structures
Schedule 2.2(b) - Site Leases
Schedule 2.2(c) - Advertising Contracts
Schedule 2.2(d) - Permits
Schedule 3. 1 0 - Financial Statements
DISCLOSURE SCHEDULE
Part 3.2(b) Part 3.9(b) Part 3.20
Part 3.2(c) Part 3.12 Part 3.22
Part 3.5 Part 3.13 Part 3.23
Part 3.6 Part 3.14
Part 3.7 Part 3.16
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ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is entered into as of July 23,
1998, by and between TRI-STATE OUTDOOR MEDIA GROUP, INC., a Kansas corporation
("Buyer"), and XXXXX COMPANY, INC., a Georgia corporation ("Seller") (Buyer and
Seller are sometimes herein referred to individually as a "Party" and
collectively as the ("Parties").
RECITALS
Seller is engaged in the business of owning and operating outdoor signs
and billboards and otherwise providing outdoor advertising services (the
"Business") in Lowndes County, Georgia (the "Territory"). Seller desires to sell
and assign certain outdoor advertising assets to Buyer, and Buyer desires to
purchase such assets and to assume certain liabilities associated with such
assets, pursuant to the terms, conditions, limitations and exclusions contained
in this Agreement.
AGREEMENT
The Parties, intending to be legally bound, agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the terms listed on Exhibit A attached
hereto have the
meanings specified or referred to in Exhibit A .
2. PURCHASE AND SALE OF THE ASSETS; CLOSING
2.1 Agreement to Purchase and Sell. Subject to the terms and conditions of
this Agreement, Seller hereby agrees to grant, sell, assign, transfer, convey
and deliver all right, title and interest in and to the Purchased Assets, free
and clear of any Encumbrances or Security Interests, and Buyer hereby agrees to
buy and acquire the Purchased Assets from Seller, and to assume the Assumed
Liabilities upon the terms and conditions set forth in this Agreement.
2.2 Purchased Assets. The Purchased Assets are those assets of Seller used
in the Business listed below:
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(a) all of the billboard displays and other out-of-home advertising
structures, together with all components, fixtures, parts, appurtenances, and
equipment attached to or made a part thereof that are existing, under
construction or for which Seller has any rights (including at least 13
structures and 50 sign faces) (collectively, the "Structures"), including,
without limitation, all of tile Structures listed on Schedule 2.2(a);
(b) all leases, licenses, easements, other rights of ingress or
egress, and all other grants of the right to place, construct, own, operate or
maintain billboard displays and other out-of-home advertising structures
(including, without limitation, the Structures) on land, buildings and other
real property owned by third parties, and all rights therein (collectively, the
"Site Leases"), including, without limitation, those Site Leases listed on
Schedule 2.2(b):
(c) all of the rights under existing and pending sales and
advertising contracts associated with the Business, all rights to the
advertising copy displayed on the Structures as of the Closing Date, all other
rights to collect and receive income from the use of the Structures and security
deposits, if any, with respect thereto (collectively, the "Advertising
Contracts"), including, without limitation, all of the Advertising Contracts
listed on Schedule 2.2(k);
(d) subject to the provisions of Section 5.10, all state and local
licenses or permits/tags which Seller has or has an interest in with respect to
the Business and all other Governmental Authorizations that are required for the
operation of the Business (collectively, the "Permits"), including, without
limitation, all of the Permits listed on Schedule 2.2(d);
(e) all accounts receivable, prepaid items and other assets of the
Business as of the Closing Date that would be reflected as current assets on a
balance sheet of the Business as of the Closing Date prepared in a manner
consistent with Section 3. 10(a), but excluding cash and cash equivalents;
(f) all pertinent Books and Records;
(g) the Intangible Property (it being understood that as to Seller's
trade name "Xxxxx Company, Inc.", Buyer shall be entitled to use such name in
connection with its operation of the Purchased Assets and Seller shall be
entitled to retain the use of this name as its corporate name and in connection
with the operation by Seller of those businesses conducted by it which does not
constitute part of the Business); and
(h) all rights (including any benefits arising therefrom), causes of
action, claims and demands of whatever nature (whether or not liquidated) of
Seller relating to the Purchased Assets, including, without limitation,
condemnation rights and proceeds, and all rights against suppliers under
warranties covering any of the Purchased Assets.
2.3 Agreement to Assume Certain Liabilities. At the Closing, Buyer shall
assume and agree to discharge and perform only those liabilities and obligations
that are set forth on Schedule 2.3 or arise or are attributable to events
occurring on or after the Closing Date pursuant to the Site Leases and the
Advertising Contracts listed on Schedules 2.2(b) and 2.2(c), respectively (the
"Assumed Liabilities"), but to the extent and only to the extent that:
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(a) Such obligations are performable on or after the Closing Date;
and
(b) Such obligations are attributable to periods arising on or after
the Closing Date.
The assumption by Buyer of any Assumed Liabilities shall not be deemed to modify
or amend Seller's representations and warranties contained herein or in any way
impair Buyer's right to rely upon such representations and warranties or to
obtain indemnification pursuant to Article 10 hereof for any breach of such
representations and warranties.
2.4 Excluded Liabilities. All claims against and liabilities and
obligations of Seller not specifically assumed by Buyer pursuant to Section 2.3,
including, without limitation, the following claims against and liabilities of
Seller (the "Excluded Liabilities"), are excluded, and shall not be assumed or
discharged by Buyer, and shall be discharged in full when due by Seller:
(a) Any liabilities to the extent not attributable to the
Purchased Assets;
(b) Any liability for Taxes arising prior to or as a result of the
sale of the Purchased Assets under this Agreement;
(c) Any liabilities for or related to indebtedness of Seller to
banks, financial institutions, or other Persons;
(d) Any liabilities of Seller for or with respect to any employees
of Seller, including, without limitation, any liabilities
pursuant to any compensation, collective bargaining, pension,
retirement, severance, termination, or other benefit plan,
agreement or arrangement;
(e) Any liabilities of Seller with respect to any other business
of Seller; and
(f) Any other liabilities of Seller, whether absolute or
contingent, that are
attributable to or arise from facts, events, or conditions that occurred or came
into existence prior to the Closing (except to the extent that Buyer shall
assume the Assumed Liabilities as set forth in Section 2.3), whether or not such
liabilities are asserted or claimed prior to the Closing or thereafter.
2.5 Closing. The purchase and sale of the Purchased Assets (the "Closing")
provided for in this Agreement will take place at the offices of Coleman,
Talley, Newbern, Kurrie, Preston & Holland, L.L.P., 000 Xxxxx Xxxxxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxx 00000 on the date which is twenty-one (21) days after the full
execution of this Agreement, or such earlier or later time and place as the
Parties may agree in writing. The effective time of the Closing shall be 12: 01
a.m., Eastern Standard Time, on the Closing Date.
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2.6 Purchase Price. In consideration for the Purchased Assets, Buyer shall
assume the Assumed Liabilities, and pay an amount (the "Purchase Price") equal
to One Million Two Hundred Thousand Dollars ($1,200,000.00). The Parties agree
to cooperate with each other in determining and reaching an agreement in writing
on the allocation of the Purchase Price among the Purchased Assets on or prior
to Closing.
2.7 Transactions at the Closing. The following transactions shall take
place at the Closing:
(a) Seller shall enter into (as applicable) and/or deliver to Buyer:
(i) the Xxxx of Sale, Assignment and Assumption Agreement; (ii) a lease or
leases covering each of the thirteen (13) structures described in Section 2.2(a)
in the form of Exhibit D annexed hereto (the "Parcel Leases") (which Parcel
Lease(s) shall provide for a term of twenty (20) years, annual rental payments
per Structure of $4,000.00 for each of years one through seven and $5,000.00 for
each of years eight through twenty, and the right of Buyer to remove any
Structure from the leased property) and xxx appropriate memorandum of lease;
(iii) Required Consents; (iv) satisfactory evidence of the release of any
Encumbrances or Security Interests on the Purchased Assets; (v) all applicable
Tax Clearances; and (vi) other instruments of transfer, and all other related
documents as may be necessary to effect the sale and assignment of the Purchased
Assets in accordance with the terms hereof. Seller shall also deliver to Buyer
all Books and Records with respect to the Purchased Assets, including the
originals of the Advertising Contracts, Site Leases and Permits.
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(b) Buyer shall deliver the Purchase Price at the Closing to an
account or accounts designated by Seller by wire transfer of immediately
available funds.
(c) Buyer shall enter into (as applicable) and deliver to Seller:
(i) the Xxxx of Sale, (ii) the Parcel Lease and a memorandum of lease, and (iii)
other assumption agreements, instruments and other documents as may be
reasonably necessary to evidence the assumption by Buyer of the Assumed
Liabilities.
(d) The Parties shall also deliver to each other the agreements,
instruments, opinions, certificates, and other documents referred to in this
Agreement.
2.8 Third Party Consents. To the extent that Seller's rights under any
Advertising Contract, Site Lease, Permit or other interest in the Purchased
Assets may not be assigned without the consent of a third party and such consent
has not been obtained, this Agreement shall not constitute an agreement to
assign the same if an attempted assignment would constitute a breach thereof or
be unlawful, and Seller and Buyer, to the maximum extent permitted by law and
any terms of or limitations relating to such asset, shall use their Best Efforts
to obtain for Buyer the benefits thereunder, and shall cooperate to the maximum
extent permitted by law and any terms of or limitations relating to such asset
in any reasonable arrangement designed to provide such benefits to Buyer,
including any sublease or subcontract or similar arrangement, and if Buyer has
obtained such benefits, Buyer shall discharge Seller's obligations thereunder
arising from and after the Closing Date, except for those obligations arising
because of Seller's breach.
3. REPRESENTATIONS AND WARRANTIES OF SELLER
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Seller represents and warrants to Buyer as follows:
3.1 Organization and Good Standing. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Georgia, with full power and authority to conduct the Business as it is now
being conducted, to own or use the Purchased Assets, and to perform all its
obligations. Seller has delivered to Buyer true and complete copies of its
Organizational Documents, as currently in effect. Seller is duly qualified to do
business and in good standing in each jurisdiction in which the property owned,
leased or operated by it or the nature of the business conducted by it makes
such qualification necessary, except where such failure to be qualified would
not have a Material Adverse Effect on Seller or the Business. Seller has no
subsidiaries.
3.2 Authority: No Conflict.
(a) This Agreement constitutes the legal, valid, and binding
obligation of Seller, enforceable against it in accordance with its terms. Upon
the execution and delivery by Seller of any documents to be executed at Closing
pursuant to this Agreement (collectively, the "Closing Documents"), such Closing
Documents will constitute the legal, valid, and binding obligations of Seller,
as applicable, enforceable against it in accordance with its terms. Seller has
the absolute and unrestricted right, power and authority to execute and deliver
this Agreement and the Closing Documents to which it is a party and to perform
its obligations thereunder. The Indemnifying Stockholders are all the
shareholders, beneficially and of record, of Seller. The execution, delivery and
performance of this Agreement has been specifically authorized by all the
shareholders and directors of Seller.
(b) Except as set forth in Part 3.2(b) of the Disclosure Schedule,
neither the execution and delivery by Seller of this Agreement nor the
consummation or performance by Seller of any of the Contemplated Transactions
will:
(i) conflict with, violate or result in a breach of (A) any
provision of the Organizational Documents of Seller; (B) any Order or
Legal Requirement to which Seller, the Business or any of the Purchased
Assets may be subject; or (C) any Governmental Authorization held by
Seller or that otherwise relates to the Business or the Purchased Assets;
or
(ii) (A) contravene, conflict with, or result in a violation
or breach of any provision of, or give any Person the right to declare a
default or exercise any remedy under, or to accelerate the maturity or
performance of, or to cancel, terminate, or modify, any material Contract
to which Seller is a party or any material interest or rights of Seller in
or to the Purchased Assets; or (B) result in the imposition or creation of
any Encumbrance upon or with respect to any of the Purchased Assets.
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(c) Except as set forth in Part 3.2(c) of the Disclosure Schedule,
Seller is not and will not be required to give any notice to or obtain any
Consent from any Person in connection with the execution and delivery of this
Agreement or the consummation or performance of any of the Contemplated
Transactions (any such Consents set forth on Part 3.2(c) of the Disclosed
Schedule are referred to as "Required Consents").
3.3 Solvency. By consummating the transactions contemplated hereby,
Seller does not intend to hinder, delay or defraud any of Seller's present or
future creditors. Before giving effect to the transactions contemplated hereby,
Seller has been paying its debts as they become due in the Ordinary Course of
Business and, after giving effect to the transactions contemplated hereby,
Seller will have paid or discharged all of its debts (or made adequate provision
for the payment thereof) with respect to the Purchased Assets.
3.4 Books and Records. The books of account, and other Books and
Records of Seller maintained in connection with the Purchased Assets, are
complete and correct in all material respects and have been maintained in
accordance with sound business practices. Buyer shall have full access to the
Books and Records (and the right to make copies of same) prior to, at and after
the Closing, and this provision shall survive the Closing.
3.5 Structures. Seller owns all of the Structures. Except as set
forth in Part 3.5 of the Disclosure Schedule, each Structure (a) has a written
Site Lease and is located entirely on property covered by a Site Lease, (b)
complies in all material respects with the terms of the Permits and applicable
Legal Requirements pertaining to it, (c) is in condition to accept faces and in
adequate condition and repair for its current use, and (d) is not currently the
subject of any dispute with any lessor, any lessee or owner of adjacent property
or any other Person.
3.6 Permits. Except as set forth in Part 3.6 of the Disclosure
Schedule, (a) the Permits constitute all necessary licenses, permits,
registrations and approvals necessary pursuant to all applicable Legal
Requirements to install, operate and maintain the Structures for off-premises
advertising, (b) Seller is in material compliance with the terms of the Permits;
(c) each Permit is in full force and effect and Seller is not aware of any fact
or event which constitutes a material violation of any Permit, and (d) Seller
has not received written notice that any Governmental Body issuing any Permit
intends to cancel, terminate, modify or amend any Permit.
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3.7 Site Leases and Advertising Contracts. Seller has delivered to
Buyer true and complete copies of all Advertising Contracts and the Site Leases
to which Seller is a party or by which Seller or any of the Purchased Assets is
bound, and all Site Leases and Advertising Contracts are listed on Schedules
2.2(b) and 2.2(c), respectively. Except as set forth on Part 3.7 of the
Disclosure Schedule, all sales made to advertisers in connection with the
Structures have been made pursuant to Advertising Contracts. The Site Leases and
the Advertising Contracts are in full force and effect, and are binding upon the
parties thereto. Except as set forth in Part 3.7 of the Disclosure Schedule, (x)
to the Knowledge of Seller, no default by Seller or any other Person has
occurred under the Site Leases or Advertising Contracts and (y) to the Knowledge
of Seller, no event, occurrence or condition exists which (with or without
notice or lapse of time or the happening of any future event or condition) would
become a default by Seller thereunder or would entitle any other party to
terminate a Site Lease or Advertising Contract to make a claim or set-off
against Seller or otherwise to amend such Site Lease or Advertising Contract or
prevent such Site Lease or Advertising Contract from being renewed in accordance
with its terms. Except as set forth in Part 3.7 of the Disclosure Schedule,
Seller has not received any written notice of default, termination or
non-renewal under any Site Lease or Advertising Contract. On the Closing Date,
all Site Lease rents and other charges and all liabilities with respect to the
Purchased Assets obligations shall be paid in full through the calendar month in
which the Closing occurs.
3.8 Omitted.
3.9 Title, Encumbrances.
(a) Seller has good title to all of the Purchased Assets.
There are no existing agreements, options, commitments or rights with, of or to
any Person to acquire any of the Purchased Assets or any interest therein.
(b) Except as set forth in Part 3.9(b) of the Disclosure
Schedule none of the Structures or Site Leases are subject to zoning, use, or
building code restrictions that will prohibit the continued effective ownership,
leasing or other use of such assets as currently owned and used by Seller.
Seller has not received any notice of pending or Threatened claims, Proceedings,
planned public -improvements, annexations, special assessments, reasonings or
other adverse claims affecting the structures or Site Leases.
3.10 Financial Statements.
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(a) Seller has delivered to Buyer certain financial statements
with respect to Seller, copies of which are annexed hereto as Schedule 3. 10.
The Financial Statements have been prepared using accounting methods
consistently applied during the periods covered thereby and are (i) complete and
correct in all material respects, and (ii) present fairly in all material
respects the financial condition of the Seller at the dates of said statements
and the results of the operations of the Seller and cash flows for the periods
covered thereby. There has been no Material Adverse Change in the financial
condition of the Business, Seller or Purchased Assets since June 29, 1998.
(b) As of the date hereof and as of the Closing Date, Seller
had and will have no liabilities with respect to the Business or the Purchased
Assets (which liabilities, when taken individually or in the aggregate are
material) of any nature, whether accrued, absolute, contingent or otherwise,
asserted or unasserted, known or unknown (including, without limitation,
liabilities as guarantor or otherwise with respect to obligations of others, or
liabilities for Taxes due or then accrued or to become due or contingent or
potential liabilities relating to activities of Seller with respect to the
Business prior to the date hereof or the Closing, as the case may be, regardless
of whether claims in respect thereof had been asserted as of such date), except
(i) liabilities reflected in the Financial Statements or the notes thereto, (ii)
Advertising Contracts, or (iii) liabilities incurred in the Ordinary Course of
Business since June 29, 1998.
3.11 Taxes. With respect to the Purchased Assets and the Business:
(a) Seller has filed or caused to be filed all Tax Returns
that are or were required to be filed by Seller, pursuant to applicable Legal
Requirements. Seller has paid, or made provision for the payment of, all Taxes
that have or may have become due pursuant to those Tax Returns or otherwise, or
pursuant to any assessment received by Seller.
(b) No unpaid Taxes create an Encumbrance on the Purchased
Assets, except for ad valorem taxes on the Structures. Seller has provided to
Buyer a copy of the 1997 ad valorem tax xxxx on the Structures, wherein the
total taxes for 1997 was $816.66.
(c) Buyer shall not be liable for any Taxes of Seller as a
result of the Contemplated Transactions.
3.12 Compliance with Legal Requirements. Except as set forth in Part
3.12 of the Disclosure Schedule, (a) Seller has complied with all Legal
Requirements applicable to Seller's ownership or use of the Purchased Assets and
operation of the Business, and (b) Seller has not received any notice (written
or oral) of any violation or failure to comply with any Legal Requirements
relating to the Business, the Purchased Assets or their use or operation which
violation or failure has not been cured.
3.13 Legal Proceedings: Orders. Except as set forth in Part 3.13 of
the Disclosure Schedule, there is no Proceeding pending or, to the Knowledge of
Seller, Threatened against Seller or affecting any of the Purchased Assets and
there is no Order to which Seller or the Purchased Assets is subject.
3.14 Other Contracts. Seller is not a party to or bound by any Other
Contract, except as disclosed in Part 3.14 of the Disclosure Schedule.
3.15 Insurance. Seller maintains (and shall through and including
the Closing Date maintain) in full force and effect policies of fire and other
casualty, liability, title and other forms of insurance covering the Purchased
Assets and the Business, and the operation thereof, of the types and with the
amounts of coverage as are consistent with industry standards for outdoor
advertising businesses.
3.16 Environmental Matters. Except as set forth in Part 3.16 of the
Disclosure Schedule with respect to the Purchased Assets and the Real Property
and the use or operation thereof. (a) Seller is, and has been, in compliance
with all Environmental Laws; (b) Seller has timely filed all reports, obtained
all required approvals and permits relating to the Business, and generated and
maintained all data, documentation and records under any applicable
Environmental Laws; (c)
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to the Knowledge of Seller, there has not been any Release of Hazardous
Materials at or in the vicinity of any real property covered by a Site Lease or
a Parcel Lease or on which a Structure is located) or in areas for which Seller
would have responsibility under Environmental Laws; (d) Seller has not received
any written notice from any Governmental Body or private or public entity
advising it that it is or may be responsible for response costs with respect to
a Release, a threatened Release or clean up of Hazardous Materials produced by,
or resulting from, its Business, operations or processes; and (e) Seller has
delivered to Buyer true and complete copies and results of any reports, studies,
analyses, tests, or monitoring possessed or accessible by Seller pertaining to
Hazardous Materials in, on, or under the properties included in the Purchased
Assets.
3.17 Intangible Property. Seller uses no Intangible Property in
connection with the operation of the Purchased Assets except for the Permits,
the Books and Records, the trade name "Xxxxx Company, Inc." and licenses for
commonly available software programs under which Seller is the licensee.
3.18 Relationships with Affiliates. Except as set forth on Part 3.18
of the Disclosure Schedule, Seller is not a party to any contract with a Related
Person of Seller relating to the Purchased Assets or the Business associated
therewith. Neither Seller nor any Related Persons of Seller is the owner (of
record or as a beneficial owner) of an equity interest or any other financial or
profit interest in, a Person (other than Seller) that has business dealings or a
material financial interest in an transaction with Seller involving the
Purchased Assets or the Business associated therewith. Seller has not, in the
three (3) years immediately preceding the date hereof, entered into any
agreement with or engaged in any transaction with Affiliates of Seller or a
Related Person of Seller for the provision of any services or the purchase, sale
or other transfer of assets.
3.19 Brokers or Finders. Seller and its shareholders, directors, and
Representatives have not incurred any obligation or liability, contingent or
otherwise, for brokerage or finders' fees or agents' commissions or other
similar payment in connection with this Agreement.
3.20 Employee Benefits Matters. Except as disclosed on Part 3.20 of
the Disclosure Schedule, with respect to Seller:
(a) Seller does not maintain and has never maintained an
"employee benefit pension plan" within the meaning of ERISA Section 3(2), that
is or was subject to Title IV of ERISA.
(b) Seller does not have and has not ever had, any past,
present or future obligation or liability to contribute any "multi-employer
plan," as defined in ERISA Section 3(37).
(c) Seller does not have any written or oral employee benefit
plans, contracts, agreements, incentives or arrangements, including without
limitation, pension and profit sharing plans, savings plans, incentive
compensation, medical, life, dental or disability plans or severance agreements.
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For purposes of this Section 3.20, the term "Seller" shall be deemed to include
any other corporation, trade, business or other entity, other than Seller, which
would, together with Seller, now or in the past constitute a single employer
within the meaning of Section 414 of the IRC.
3.21 Bulk Sales. Neither the sale by Seller to Buyer of the Purchased
Assets nor the transfer by Seller to Buyer of the Assumed Liabilities as
contemplated in this Agreement constitutes a "bulk sale" (as that term is
defined by the Uniform Commercial Code), and the completion of the transactions
contemplated in this Agreement shall not subject Buyer to any (i) claims
relating to or liabilities resulting from the operations or obligations of
Seller, or (ii) liabilities or obligations with respect to Taxes, all of which
liabilities and obligations shall be the sole responsibility of Seller.
3.22 Employees: Labor Matters. All employees of Seller are employees at
will. Except as disclosed on Part 3.22 of the Disclosure Schedule, no employee,
agent or consultant of Seller is a party to any agreement governing such
employee's agent's or consultant's employment or engagement, as the case may be,
with Seller. As of the date hereof Seller employs (and as of the Closing Date
Seller shall employ) less than fifty (50) employees. Seller has made no
warranty, representation or agreement, either in writing or orally, to any
employee of Seller that Buyer intends to employ such employee on or after the
Closing Date. Seller consents to Buyer communicating with the employees,
consultants and independent contractors of Seller on or prior to the Closing
Date, and Seller shall cooperate in connection therewith. Seller is not a party
to any collective bargaining agreement with respect to any of its employees nor
are any employees of Seller covered by any collective bargaining agreement. No
labor organization or group of employees has made a demand for recognition, has
filed a petition seeking a representation proceeding or given Seller notice of
any intention to hold an election of a collective bargaining organization. There
are no known writs, actions, claims or legal, administrative, arbitration or
other proceedings or governmental investigations pending or Threatened or
involving or alleging civil rights violations, unfair labor investigations
practice claims, back pay orders or other similar claims or proceedings. Seller
is in material compliance with all federal, state and local laws respecting
employment and employment practices, terms and conditions of employment and
wages and hours, and is not engaged in any unfair labor practice; there is no
unfair labor practice complaint against Seller pending before the National Labor
Relations Board; there is no labor strike, dispute, slowdown, or stoppage
pending or threatened against or involving the employees of Seller; no grievance
or any arbitration proceeding is pending or threatened against Seller and no
claim therefor exists.
3.23 Indebtedness, Encumbrances and Security Interests. Except as set
forth on Part 3.23 of the Disclosure Schedule, all of the Purchased Assets are
owned by Seller free and clear of all Encumbrances and Security Interests. Set
forth on Part 3.23 of the Disclosure Schedule attached hereto is a list of all
Encumbrances, Security Interests and all indebtedness of the Seller, including
the respective names and addresses of the obligors and obligees, amount of the
indebtedness and security for the indebtedness, and the secured parties, debtor
and collateral with respect to any Security Interests, as applicable, if any.
All such Encumbrances, Security Interests and indebtedness shall be satisfied
and discharged at or before the Closing. There are no mortgages or other liens
(except for real property taxes not yet due and payable) affecting the real
property covered by the Parcel Leases.
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3.24 Omitted.
3.25 Billboard Income. The net monthly xxxxxxxx on Advertising Contracts
with an original term of at least twelve (12) months in effect as of the date
hereof and on the Closing date are, and on the Closing Date shall be, not less
than $ 18,640.00 (exclusive of poster contract xxxxxxxx).
3.26 Disclosure. No representation or warranty of Seller in this Agreement
and no statement in the Disclosure Schedule contains an untrue statement of
material fact or omits to state a material fact necessary to make the statements
herein or therein, in light of the circumstances in which they were made, not
misleading.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller as follows:
4.1 Organization and Good Standing. Buyer is a corporation duly organized,
validly existing, and in good standing under the laws of the State of Kansas.
4.2 Authority, No Conflict
(a) This Agreement constitutes the legal, valid, and binding
obligation of Buyer, enforceable against Buyer in accordance with its terms.
Upon the execution and delivery by Buyer of the Closing Documents to which Buyer
is a party, such Closing Documents will constitute the legal, valid, and binding
obligations of Buyer, enforceable against Buyer in accordance with their
respective terms. Buyer has the absolute and unrestricted right, power, and
authority to execute and deliver this Agreement and the Closing Documents and to
perform its obligations under this Agreement and the Closing Documents to which
Buyer is a party.
(b) Neither the execution and delivery of this Agreement by Buyer
nor the consummation or performance of any of the Contemplated Transactions by
Buyer will give any Person the right to prevent, delay, or otherwise interfere
with any of the Contemplated Transactions pursuant to (i) any provision of
Buyer's Organizational Documents; (ii) any resolution adopted by the board of
directors or the stockholders of Buyer; (iii) any Legal Requirement or Order to
which Buyer may be subject; or (iv) any material Contract to which Buyer is a
party or by which Buyer may be bound.
4.3 Certain Proceedings. There is no pending Proceeding that has been
commenced against Buyer and that challenges, or may have the effect of
preventing, making illegal, or otherwise interfering with, any of the
Contemplated Transactions. To Buyer's Knowledge, no such Proceeding has been
Threatened and no event has occurred or circumstance exists that may give rise
to or serve as a basis for the commencement of any Proceeding.
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4.4 Brokers or Finders. Buyer has not incurred any obligation or
liability, contingent or otherwise, for brokerage or finders' fees or agents'
commissions or other similar payment in connection with this Agreement.
5. COVENANTS OF SELLER
1. 5.1 Access and Investigation. Between the date of this Agreement and the
Closing Date, Seller will, and will cause its Representatives to, afford Buyer
and its Representatives reasonable access during normal business hours to
Seller's personnel, properties, Books and Records, and other documents and data
relating to the Purchased Assets and the Business, and furnish Buyer and its
Representatives with copies of the same. In addition to the foregoing, Seller
(without additional consideration therefor to be paid to Seller, but with any
reasonable out-of-pocket expenses payable to non-Affiliates incurred by Seller
to be paid by Buyer), shall, at all reasonable times before the Closing if
called upon by Buyer, use reasonable efforts to cooperate with and assist Buyer
in the preparation of financial statements by Buyer which may include the
operation of the Business prior to the Closing Date.
5.2 Due Diligence. Buyer shall have the right, and Seller shall afford
access to Buyer and its Representatives, at all reasonable times upon advance
notice to perform due diligence on the Purchased Assets.
5.3 Operation of the Purchased Assets. Between the date of this Agreement
and the Closing Date, Seller will:
(a) operate the Business only in the Ordinary Course of Business;
(b) use its Best Efforts to maintain the Purchased Assets, and
maintain the relations and good will with advertisers, landlords and others
associated with the operation of the associated Business;
(c) not enter into any new Advertising Contract or Site Lease not in
the Ordinary Course of Business; and
(d) not xxxx any party for payments (or accept any payments) under
any Advertising Contract for any period after the end of the calendar month in
which the Closing Date occurs, and if Seller receives any such payments it shall
promptly pay the same to Buyer.
5.4 Best Efforts. Between the date of this Agreement and the Closing Date,
Seller will use its Best Efforts to cause the conditions in Section 7 to be
satisfied.
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5.5 Negative Covenant. Except as otherwise expressly permitted by this
Agreement, between the date of this Agreement and the Closing Date, Seller will
operate the Business consistent in all material respects with past practice,
except as otherwise provided in this Agreement.
5.6 Required Approvals and Consents. As promptly as practicable after the
date of this
Agreement, Seller will make all filings required by Legal Requirements to be
made by it in order to consummate the Contemplated Transactions and use its Best
Efforts to obtain such of the Consents identified in Section 3.2(c) for the
transfer of the Purchased Assets.
5.7 Notification. Between the date of this Agreement and the Closing Date,
Seller will promptly notify Buyer in writing if Seller become aware of any fact
or condition that causes or constitutes a breach of any of Seller's
representations and warranties as of the date of this Agreement, or if Seller
becomes aware of the occurrence after the date of this Agreement of any fact or
condition that would (except as expressly contemplated by this Agreement) cause
or constitute a breach of any such representation or warranty had such
representation or warranty been made as of the time of occurrence or discovery
of such fact or condition. During the same period, Seller will promptly notify
Buyer of the occurrence of any breach of any covenant of Seller in this Section
5 or of the occurrence of any event that may make the satisfaction of the
conditions in Section 7 impossible or unlikely.
5.8 No Negotiation. Until such time, if any, as this Agreement is
terminated pursuant to Section 9, neither Seller nor any Affiliate will, nor
will it permit its Representatives to, directly or indirectly solicit, initiate,
or encourage any inquiries or proposals from, discuss or negotiate with, provide
any non-public information to, or consider the merits of any unsolicited
inquiries or proposals from, any Person (other than Buyer or its
Representatives) relating to or affecting any transaction involving the sale of
the Purchased Assets.
5.9 Tax Clearance. Seller shall obtain certificates of clearances for
Taxes ("Tax Clearances") from the state of Georgia and applicable local
jurisdictions (if any), certifying as to the payment by or on behalf of Seller
of all Taxes due on or prior to the Closing Date (including, without limitation,
in connection with the Contemplated Transactions).
5.10 Maintenance of Permits. From and after the Closing, Seller shall
maintain the Permits in its name in good standing at all times. Seller's
obligation to so maintain the Permits shall include, without limitation, the
following obligations on the part of Seller:
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(a) Seller shall pay all periodic fees payable to any Governmental
Body with respect to the Permits on or before the due date hereof, and Buyer
shall reimburse Seller therefor within thirty (30) days after Seller delivers to
Buyer an invoice therefor; provided that Seller shall provide evidence of its
payment of such fees within five (5) days.
(b) Seller shall comply with all Legal Requirements applicable to
the maintenance of the Permits.
(c) Seller shall not withdraw, modify, amend or otherwise alter any
Permit.
(d) Seller shall not sell, transfer, assign or otherwise hypothecate
any of the Permits, or any interest therein, without the prior written consent
of Buyer, which consent may be withheld (reasonably or unreasonably) by Buyer in
its sole discretion.
(e) Seller, upon receipt by it, shall immediately deliver to Buyer
copies of all notices or correspondence received with respect to any Permit
(including, without limitation, notice of any Order or Proceeding).
(f) If Seller shall default in its obligations under this Section
5.10, Buyer, at its option, may elect to cause Seller to assign any one or more
Permits to Buyer, in which case Seller shall execute and deliver to Buyer such
instruments of transfer as requested by Buyer.
(g) If Buyer shall incur any expense as a result of any default by
Seller in its obligations under this Section 5.10, Buyer shall be entitled to
offset any such expense against rental payments under the Parcel Leases.
The provisions of this Section 5.10 shall survive the Closing until the
expiration of the Parcel Leases at which time the Permits shall be the sole
property of Seller.
6. COVENANTS OF BUYER
6 .1 Required Approvals. As promptly as practicable after the date of this
Agreement, Buyer will make all filings required by Legal Requirements to be made
by it to consummate the Contemplated Transactions.
6.2 Best Efforts. Between the date of this Agreement and the Closing Date,
Buyer will use its Best Efforts to cause the conditions in Section 8 to be
satisfied, provided that this Agreement will not require Buyer to dispose of or
make any change in any portion of its business or to incur any other burden to
obtain a Governmental Authorization.
6.3 Notification. Between the date of this Agreement and the Closing Date,
Buyer will promptly notify Seller in writing if Buyer becomes aware of any fact
or condition that causes or constitutes a breach of any of Buyer's
representations and warranties as of the date of this Agreement, or if Buyer
becomes aware of the occurrence after the date of this Agreement of any fact or
condition that would (except as expressly contemplated by this Agreement) cause
or constitute a breach of any such representation or warranty had such
representation or warranty been made as of the time of occurrence or discovery
of such fact or condition. During the same period, Buyer will promptly notify
Seller of the occurrence of any breach of any covenant of Buyer in this Section
6 or of the occurrence of any event that may make the satisfaction of the
conditions in Section 8 impossible or unlikely.
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7. CONDITIONS PRECEDENT TO BUYER'S OBLIGATION TO CLOSE
Buyer's obligation to purchase the Purchased Assets and to take the other
actions required
to be taken by Buyer at the Closing is subject to the satisfaction, at or prior
to the Closing, of each of the following conditions (any of which may be waived
by Buyer, in whole or in part):
7.1 Accuracy of Representations. Seller's representations and warranties
in this Agreement must have been accurate in all material respects as of the
date of this Agreement, and must be accurate in all material respects as of the
Closing Date as if made on the Closing Date, and Buyer shall have received a
certificate of an executive officer of Seller in the form of Exhibit E annexed
hereto, dated as of the Closing Date, as to such accuracy.
7.2 Seller's Performance. The covenants and obligations that Seller is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been performed and complied with in all material respects,
and Buyer shall have received a certificate of an executive officer of Seller in
the form of Exhibit E annexed hereto, dated as of the Closing Date, as to such
compliance.
7.3 Consents. Each of the Consents required pursuant to Section 3.2(c)
shall have been obtained and shall be in full force and effect.
7.4 Additional Documents. Each of the following documents must have been
delivered
to Buyer:
(a) an opinion of Coleman, Talley, Newbern, Kurrie, Preston &
Holland, L.L.P., counsel to Seller, dated as of the Closing Date in the form of
Exhibit F annexed hereto,
(b) the deliveries required from Seller in Section 2.7;
(c) resolutions of all the shareholders and directors of Seller
confirming the authorization of the execution and delivery of this Agreement and
the Contemplated Transactions; and
(d) such other documents as Buyer may reasonably request for the
purpose of (i) evidencing the satisfaction of any condition referred to in this
Section 7, or (ii) otherwise facilitating the consummation or performance of any
of the Contemplated Transactions.
7.5 No Proceedings. Since the date of this Agreement, there must not have
been commenced and pending or Threatened by any Person any Proceeding (i)
involving any challenge to, or seeking damages or other relief in connection
with, any of the Contemplated Transactions, (ii) that prevents, makes illegal,
or otherwise materially interferes with any of the Contemplated Transactions or
seeks to do any of the foregoing, or (iii) that involves any material claim
against Seller.
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7.6 No Prohibition. There must not be in effect any Legal Requirement or
any injunction or other Order that prohibits or restricts the consummation of
the Contemplated Transactions.
7.7 No Material Adverse Change. There shall not have been a Material
Adverse Change since the date hereof.
7.8 Due Diligence. On or before the date which is ten (10) days after the
full execution of this Agreement, Buyer's due diligence investigation and review
of the Purchased Assets and the Assumed Liabilities shall not reveal any fact or
circumstance not acceptable to Buyer in Buyer's sole and absolute discretion.
7.9 Satisfaction of Indebtedness. At or prior to the Closing, Seller shall
have repaid in full all outstanding indebtedness of Seller to the extent
affecting the Purchased Assets and shall cause all Security Interests affecting
the Purchased Assets to be extinguished.
8. CONDITIONS PRECEDENT TO SELLER'S OBLIGATION TO CLOSE
Seller's obligation to sell the Purchased Assets and Seller's obligation
to take the other actions
required to be taken by Seller at the Closing is subject to the satisfaction, at
or prior to the Closing, of each of the following conditions (any of which may
be waived by Seller, in whole or in part):
8.1 Accuracy of Representations. Buyer's representations and warranties in
this Agreement must have been accurate in all material respects as of the date
of this Agreement and must be accurate in all material respects in all respects
as of the Closing Date as if made on the Closing Date, and Seller shall have
received a certificate of an executive officer of Buyer in the form of Exhibit G
annexed hereto, dated as of the Closing Date, as to such accuracy.
8.2 Buyer's Performance. The covenants and obligations that Buyer is
required to perform or to comply with pursuant to this Agreement at or prior to
the Closing must have been performed and complied with in all material respects,
and Seller shall have received a certificate of
an executive officer of Buyer in the form of Exhibit G annexed hereto, dated as
of the Closing Date, as to such compliance.
8.3 Additional Documents. Buyer must have caused the following documents
to be delivered to Seller:
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(a) an opinion of St. Xxxx & Xxxxx, L.L.C., dated the Closing Date
in the form of Exhibit H annexed hereto;
(b) the deliveries required from Buyer in Section 2.7;
(c) resolutions of all the directors of Buyer confirming the
authorization of the execution and delivery of this Agreement and the
Contemplated Transactions; and
(d) such other documents as Seller may reasonably request for the
purpose of (i) evidencing the satisfaction of any condition referred to in this
Section 8, or (ii) otherwise facilitating the consummation of any of the
Contemplated Transactions.
8.4 No Proceedings. Since the date of this Agreement, there must not have
been commenced and pending or Threatened any Proceeding (i) involving any
challenge to, or seeking damages or other relief in connection with, any of the
Contemplated Transactions, or (ii) that prevents, makes illegal, or otherwise
materially interferes with any of the Contemplated Transactions or seeks to do
any of the foregoing.
8.5 No Prohibition. There must not be in effect any Legal Requirement or
any injunction or other Order that prohibits or restricts the consummation of
the Contemplated Transactions.
9. TERMINATION
9.1 Termination Events. This Agreement may, by notice given prior to or at
the Closing, be terminated:
(a) by mutual written consent of Buyer and Seller;
(b) (i) by Buyer if any of the conditions in Section 7 has not been
satisfied as of the Closing Date or if satisfaction of such a condition is or
becomes impossible (other than through the failure of Buyer to comply with its
obligations under this Agreement) and Buyer has not waived in writing such
condition on or before the Closing Date; or (ii) by Seller if any of the
conditions in Section 8 has not been satisfied as of the Closing Date or if
satisfaction of such a condition is or becomes impossible (other than through
the failure of Seller to comply with its obligations under this Agreement) and
Seller has not waived in writing such condition on or before the Closing Date;
or
(c) by Buyer, on the one hand, or Seller, on the other hand, if the
Closing has not occurred (other than through the failure of the other Party
seeking to terminate this Agreement to comply fully with its obligations under
this Agreement) on or before August 1, 1998, or such later date as the Parties
may agree upon.
9.2 Effect of Termination. Each Party's right of termination under Section
9.1 is in addition to any other rights it may have under this Agreement. If this
Agreement is terminated pursuant to Section 9.1, all further obligations of the
Parties under this Agreement will terminate, except that the obligations in
Sections 13.1 and 13.3 will survive; provided, however, if (a) Seller shall
default in its obligations under this Agreement to consummate the Contemplated
Transactions (other than as a result of Buyer's default under this Agreement),
and Seller shall fail to cure such default within fourteen (14) days after
receipt of written notice of default from Buyer, then Buyer shall have the right
to pursue any or all legal and equitable remedies, separately or simultaneously
(including, without limitation, (1) the right to terminate this Agreement, or
(2) specific performance), which will survive the termination unimpaired, and
the obligations in Sections 13.1 and 13.3 will survive; and (b) Buyer shall
default in its obligations under this Agreement to consummate the Contemplated
Transactions (other than as a result of Seller's default under this Agreement),
and Buyer shall fail to cure such default within fourteen (14) days after
receipt of written notice of default from Seller, then Buyer shall pay to
Seller, as Seller's sole remedy (in lieu of any and all remedies), the sum of
$5,000.00 which sum shall constitute the agreed and liquidated damages for such
termination and/or failure to close by Buyer, and the obligations in Sections
13.1 and 13.3 will survive. The remedies set forth in this Section 9.2 apply
only to the failure of Buyer or Seller to consummate the Contemplated
Transactions, and not with respect to any obligations specified herein that
survive the Closing or termination of this Agreement.
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10. INDEMNIFICATION; REMEDIES
10.1 Indemnification and Payment of Damages by Seller and the Indemnifying
Stockholders. Seller and the Indemnifying Stockholders will, jointly and
severally, indemnify and hold harmless Buyer and its stockholders, controlling
Persons and Affiliates (collectively, the "Seller Indemnified Persons") for, and
will pay to the Seller Indemnified Persons the amount of, any loss, liability
(whether absolute or contingent), claim, damage, expense (including reasonable
costs of investigation and defense and reasonable attorneys' fees), whether or
not involving a third-party claim (collectively, "Damages"), arising, directly
or indirectly, from or in connection with:
(a) any breach of any representation or warranty made by Seller in
this Agreement, the Disclosure Schedule, or any other certificate or document
delivered by Seller pursuant to this Agreement;
(b) any breach by Seller of any covenant or obligation of Seller in
this Agreement or an certificate or document delivered by Seller pursuant to
this Agreement;
(c) the failure of Seller to satisfy and discharge any Excluded
Liabilities;
(d) any default by Seller under any Site Lease, Advertising Contract
or Permit which occurred or accrued prior to the Closing;
(e) the failure of Seller to comply with bulk sales or other similar
laws in any applicable jurisdiction; and
(f) facts, events or conditions that occurred or came into existence
prior to the Closing (except to the extent that Buyer shall have assumed the
same as set forth in Section 2.3), whether or not such Damages are asserted or
claimed prior to the Closing or thereafter.
10.2 Indemnification and Payment of Damages by Buyer. Buyer will indemnify
and hold harmless Seller and its stockholders, controlling Persons and
Affiliates (collectively, the "Buyer Indemnified Persons") for, and will pay to
the Buyer Indemnified Persons the amount of, any Damages arising, directly or
indirectly, from or in connection with:
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(a) any breach of any representation or warranty made by Buyer in
this Agreement or in any certificate or document delivered by Buyer pursuant to
this Agreement; and
(b) the failure to pay Assumed Liabilities after the Closing.
10.3 Procedure for Indemnification -- Third Party Claims.
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(a) Promptly after receipt by an Indemnified Person under Section
10.1 or 10.2 of notice of any claim against it, such Indemnified Person will, if
a claim is to be made against an Indemnifying Party under such Section, give
notice to the Indemnifying Party of the commencement of such claim, but the
failure to notify the Indemnifying Party will not relieve the Indemnifying Party
of any liability that it may have to any Indemnified Person, except to the
extent that the Indemnifying Party demonstrates that the defense of such action
is prejudiced by the Indemnifying Party's failure to give such notice.
(b) If any claim referred to in Section 10.3(a) is brought against
an Indemnified
Person and it gives written notice to the Indemnifying Party of such claim, the
Indemnifying Party may, at its option, assume the defense of such claim with
counsel satisfactory to the Indemnified Person and, after written notice from
the Indemnifying Party to the Indemnified Person of its election to assume the
defense of such claim, the Indemnifying Party will not, as long as it diligently
conducts such defense, be liable to the Indemnified Person under this Article 10
for any fees of other counsel or any other expenses with respect to the defense
of such claim subsequently incurred by the Indemnified Person in connection with
the defense of such claim, other than reasonable costs of investigation. If the
Indemnifying Party assumes the defense of a claim, (i) no compromise or
settlement of such claim may be effected by the Indemnifying Party without the
Indemnified Person's consent unless (A) there is no finding or admission of any
violation of Legal Requirements or any violation of the rights of any Person,
and (B) the sole relief provided is monetary damages that are paid in full by
the Indemnifying Party; and (ii) the Indemnified Person will have no liability
with respect to any compromise or settlement of such claims effected without its
consent. Subject to Section 10.3(c), if notice is given to an Indemnifying Party
of any claim and the Indemnifying Party does not, within ten (10) days after the
Indemnified Person's notice is given, give notice to the Indemnified Person of
its election to assume the defense of such claim, the Indemnifying Party will be
bound by any determination made in such Proceeding or any compromise or
settlement effected by the Indemnified Person.
(c) Notwithstanding the foregoing, if an Indemnified Person
determines in good faith that there is a reasonable probability that a claim may
adversely affect it or its Affiliates other than as a result of monetary damages
for which it would be entitled to indemnification under this Agreement, the
Indemnified Person may, by notice to the Indemnifying Party, assume the
exclusive right to defend, compromise, or settle such claim, but the
Indemnifying Party will not be bound by any- determination of a claim so
defended or any compromise or settlement effected without its consent (which may
not be unreasonably withheld or delayed).
10.4 Procedure for Indemnification -- Other Claim. A claim for
indemnification for any matter not involving a third-party claim shall be
asserted by written notice to the Indemnifying Party from whom indemnification
is sought.
10.5 Survival/Limitations. The Parties hereto agree that (i) the covenants
and agreements contained in this Agreement and any document delivered pursuant
hereto and the representations and warranties contained in this Agreement shall
survive until ninety (90) days after the-expiration of all applicable statutes
of limitation with respect to the subject matter thereof, and (ii) any
indemnification claim for a breach of the foregoing must be made in writing in
accordance with the provisions of this Article 10 within the applicable survival
period for the underlying representation, warranty or covenant. The expiration
of the applicable survival period will not extinguish an indemnification claim
properly made prior to such expiration in accordance with this Article 10.
11. NON-COMPETITION AND NON-SOLICITATION.
11.1 Non-Competition. Seller, the Indemnifying Stockholders and Bowling X.
Xxxxxx each hereby agrees that for a period of ten (10) years after the Closing
Date, such Person will not, without the prior written consent of Buyer, directly
or indirectly, engage or participate in, be employed by or assist in any manner
or in any capacity, or have any interest in or make any loan to any person,
firm, corporation or business which engages in outdoor advertising activities
(including the ownership and/or operation of outdoor signs and billboards) in
those areas described in Exhibit C annexed hereto; provided, however, the
foregoing shall not prevent any such entity or person from owning beneficially
or of record up to five percent (5%) of the outstanding securities of a
publicly-held corporation which engages in competitive activities.
11.2 Non-Solicitation. For a period of ten (10) years after the Closing
Date, Seller, the Indemnifying Stockholders and Bowling X. Xxxxxx each agree
that he or it will (i) not solicit, recruit or hire, or attempt to solicit,
recruit or hire, directly or indirectly, any of the employees of Buyer or its
Affiliates; (ii) refrain from soliciting, or attempting to solicit, directly or
indirectly, any business from any customer of Buyer, or actively pursue
prospective customers, with whom Buyer had material contact at any time during
the previous five (5) years for purposes of providing outdoor (including,
without limitation, out-of-home advertising) products or services of the type
offered or provided by Buyer (Buyer's customers to include customers of Seller);
and (iii) refrain from soliciting, or attempting to solicit, directly or
indirectly, any real estate location used by Buyer from any land owner (or its
successor or assigns) who leases to Buyer (including without limitation land
owners under the Site Leases), or actively pursue prospective land owners with
whom Buyer or Seller had material contact during the previous five (5) years.
11.3 Enforcement. Seller, the Indemnifying Stockholders and Bowling X.
Xxxxxx acknowledge that a breach of the covenants in this Section 11 would cause
irreparable harm to Buyer and its Affiliates for which there is not adequate
remedy at law. Seller, the Indemnifying Stockholders and Bowling X. Xxxxxx
consent to the issuance of an injunction in favor of Buyer and its Affiliates
enjoining the breach of this provision. Notwithstanding the foregoing, in
addition to any equitable remedies available to Buyer, Buyer shall be entitled
to any and all remedies at law or equity, including, without limitation,
injunctive relief, monetary damages, an accounting for profits and/or the
imposition of a constructive trust. In the event that any court of competent
jurisdiction should construe any geographical limitation, the scope, or the time
period contained in this restrictive covenant to be too broad, so as to be
unenforceable, it is the intention of the patties that the court should modify
the covenant(s) to provide that the restrictions as herein contained shall apply
and be enforceable to the maximum extent permitted by law for such restrictions,
and further upon such determination, to enforce the covenant as so modified.
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11.4 Survival. The provisions of this Section 11 shall survive the
Closing; provided, however, if Buyer is in default under the Parcel Leases after
any applicable cure period, and all the Parcel Leases shall be terminated by an
appropriate court order for which all rights of appeal shall have lapsed, the
provisions of this Section 11 shall terminate.
12. OMITTED.
13. GENERAL PROVISIONS
13.1 Expenses. Except as otherwise expressly provided in this Agreement,
each Party to this Agreement will bear its respective expenses incurred in
connection with the preparation, execution, and performance of this Agreement
and the Contemplated Transactions, including all fees and expenses of agents,
representatives, brokers or finders, counsel, and accountants. In the event of
termination of this Agreement, the obligation of each Party to pay its own
expenses will be subject to any rights of such Party arising from a breach of
this Agreement by another Party. Each Party hereto shall indemnify the other for
its failure to pay any brokerage or finders' fees or agents' commission or
similar payment incurred by such Party or its Representatives in connection with
this Agreement.
13.2 Headings; Construction. The headings of Sections in this Agreement
are provided for convenience only and will not affect its construction or
interpretation. All words used in this Agreement will be construed to be of such
gender or number as the circumstances require. Unless otherwise expressly
provided, the word "including" does not limit the preceding words or terms.
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13.3 Public Announcements, Confidentiality. Any public announcement or
similar publicity with respect to this Agreement or the Contemplated
Transactions will be issued, if at all, at such time and in such manner as Buyer
and Seller agree in writing, provided that the parties shall reasonably
cooperate in such announcements, and provided further that nothing contained
herein shall prevent any party from at any time furnishing information required
by a Governmental Body. Unless consented to by Buyer and Seller in advance or
required by Legal Requirements, prior to the Closing, each Party shall, and
shall cause their respective Representatives to, keep this Agreement strictly
confidential and may not make any disclosure of this Agreement to any Person.
All confidential information and documents made available to the Buyer by Seller
or its Representatives with respect to the Business shall be kept in strict
confidence, and not made available to any third party other than absolutely
necessary for the purposes of concluding the Contemplated Transactions. In the
event the Contemplated Transactions for any reason are not concluded, all
documents or documents compiled from information supplied or obtained hereunder,
and copies thereof, shall be returned to Seller and the Confidential Information
obtained shall in no way be used by the Buyer or communicated to any third
party, except as required by law or court order. This representation shall
survive the termination of this Agreement.
13.4 Availability of Equitable Remedies. The Parties acknowledge and agree
that (i) a breach of the provisions of this Agreement could not adequately be
compensated by money damages, and (ii) any Party shall (except as otherwise
expressly provided in this Agreement) be entitled, either before or after the
Closing, in addition to any other right or remedy available to it, to an
injunction restraining such breach and to specific performance of this
Agreement, and no bond or other security shall be required in connection
therewith.
13.5 Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by telecopier (with written confirmation of receipt), provided that a copy
is mailed by certified mail, return receipt requested, or (c) when received by
the addressee, if sent by a nationally recognized overnight delivery service
(receipt requested), in each case to the appropriate addresses and telecopier
numbers set forth below (or to such other addresses and telecopier numbers as a
Party may designate by notice to the other Parties):
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If to Seller:
Xxxxx Company, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Bowling X. Xxxxxx, President
Telephone No.: (000)000-0000
Facsimile No.:
With a copy to:
Coleman, Talley, Newbern, Kurrie, Preston & Holland, L.L.P.
000 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxx Xxxxxx, Jr., Esq.
Telephone No.: (000)000-0000
Facsimile No.: (000)000-0000
If to Buyer, to:
Tri-State Outdoor Media Group, Inc.
X.X. Xxx 0000
0000 Xxxxxxx 00 Xxxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, President
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
With a copy to:
St. Xxxx & Xxxxx, L.L.C.
Xxx Xxxx Xxxxx Xxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Notices given by an attorney for a Party shall be deemed to be a notice given by
such Party.
13.6 Further Assurances. The Parties agree (i) to furnish upon request to
each other such further information, (ii) to execute and deliver to each other
such other documents, and (iii) to do such other acts and things, all as the
other Party may reasonably request for the purpose of carrying out the intent of
this Agreement and the documents referred to in this Agreement.
13.7 Waiver. Neither the failure nor any delay by any Party in exercising
any right, power, or privilege under this Agreement or the documents referred to
in this Agreement will operate as a waiver of such right, power, or privilege,
and no single or partial exercise of any such right, power, or privilege will
preclude any other or further exercise of such right, power, or privilege or the
exercise of any other right, power, or privilege.
13.8 Entire Agreement and Modification. This Agreement supersedes all
prior agreements between the Parties with respect to its subject matter and
constitutes (along with the documents referred to in this Agreement) a complete
and exclusive statement of the terms of the agreement between the Parties with
respect to its subject matter. This Agreement may not be amended except by a
written agreement executed by the Party to be charged with the amendment.
13.9 Assignments, Successors, and No Third-Party Rights. No Party may
assign any of its rights under this Agreement without the prior consent of the
other Parties except that Buyer may assign any of its rights under this
Agreement to any Affiliate of Buyer (provided that Buyer shall remain liable for
the obligations of such assignee under this Agreement). This Agreement will
apply to, be binding in all respects upon, and inure to the benefit of the
Parties, and their successors, by liquidation or otherwise, and their permitted
assigns. Nothing expressed or referred to in this Agreement will be construed to
give any Person other than the Parties to this Agreement any legal or equitable
right, remedy, or claim under or with respect to this Agreement or any provision
of this Agreement.
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13.10 Severability. If any provision of this Agreement is held invalid or
unenforceable by any court of competent jurisdiction, the other provisions of
this Agreement will remain in full force and effect. Any provision of this
Agreement held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
13.11 Risk of Loss. Except as otherwise expressly provided in this
Agreement, material risk of loss or damage to the Purchased Assets from any
cause whatsoever prior to the Closing shall be borne by Seller, and after the
Closing shall be borne by Buyer.
13.12 Post-Closing Access. Buyer agrees that all Books and Records
delivered to Buyer by Seller pursuant to this Agreement shall be maintained open
for inspection by Seller at any time during regular business hours upon
reasonable notice for a period of three (3) years (or for such longer period as
may be required by applicable Legal Requirements) following the Closing and
that, during such period, Seller, at its expense, may make such copies thereof
as it may reasonably desire. Seller agrees that all books and records relating
to the Purchased Assets and retained by Seller shall be maintained open for
inspection by Buyer at any time during regular business hours for a period of
three (3) years (or for such longer period as may be required by applicable
Legal Requirements) following the Closing and that, during such period, Buyer,
at its expense, may make such copies thereof as it may reasonably desire. In
addition to the foregoing, Seller (without additional consideration therefor to
be paid to Seller, but with any reasonable out-of-pocket expenses payable to
non-Affiliates incurred by Seller to be paid by Buyer), shall, at all reasonable
times after the Closing if called upon by Buyer, use reasonable efforts to
cooperate with and assist Buyer in the preparation of financial statements by
Buyer which may include the operation of the Business prior to the Closing Date.
Nothing contained in this Section 13.12 shall obligate any Party hereto to make
available any books and records if to do so would violate the terms of any
Contract or Legal Requirement to which it is a party or to which it or its
assets are subject. This provision shall survive the Closing.
13.13 Applicable Law and Venue. This Agreement is made in and shall be
governed by and construed and enforced in accordance with the laws of the State
of Georgia. Seller and Buyer hereby consent to the personal jurisdiction of the
courts of Georgia in Lowndes County for all matters relating to or arising from
this Agreement.
13.14 Counterparts. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
14. OMITTED
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IN WITNESS WHEREOF, the Parties have executed, seated and delivered this
Asset Purchase Agreement as of the date first written above.
BUYER:
TRI-STATE OUTDOOR MEDIA GROUP, INC.
By: /s/ Xxxxxxx X. XxXxxxx
----------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Vice President
SELLER:
XXXXX COMPANY, INC.
By: /s/ Bowling X. Xxxxxx
---------------------------
Name: Bowling X. Xxxxxx
Title: President
INDEMNIFYING STOCKHOLDERS:
(As to Articles 10 and 11 only)
/s/ Xxxxxx X. Xxxxx
-------------------
Xxxxxx X. Xxxxx
/s/ Xxxxxxxxx X. Xxxxxx
-----------------------
Xxxxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxx
------------------
Xxxxx X. Xxxxx
/s/ Bowling X. Xxxxxx
---------------------
Bowling X. Xxxxxx
