EXHIBIT 2.3
CLOSING AGREEMENT
This Closing Agreement (this "AGREEMENT") is dated as of the 13th day of
May, 1997 by and among The York Group, Inc., a Delaware corporation (the
"PURCHASER"), York Acquisition Corp. II, a Delaware corporation, West Point
Casket Company, Inc., a Mississippi corporation (the "SELLER"), and Xxxxxx Xxx
Xxxxxxx, the Xxxxxxx Xxxxxx Xxxxxxx Trust A and the Xxxxxxx Xxxxxx Xxxxxxx Trust
B (collectively, the "STOCKHOLDERS").
Capitalized terms not otherwise defined herein shall have the meaning
assigned to them in that certain Agreement and Plan of Merger dated as of
February 11, 1997.
RECITALS
WHEREAS, the parties have previously executed that certain Agreement and
Plan of Merger dated as of February 11, 1997 (the "MERGER AGREEMENT");
WHEREAS, Article II of the Merger Agreement provides that the Seller and
the Stockholders shall, from time to time through the Closing, advise the
Purchaser as to any change, amendment or supplement to the Schedules which is
necessary to reflect changes in the subject matter thereof occurring through the
Closing Date;
WHEREAS, the Seller and the Stockholders have made certain changes to
the Schedules since the execution date of the Merger Agreement; and
WHEREAS, the parties desire to enter into this Agreement in order to set
forth the final Schedules to the Merger Agreement and to clarify the
understanding of the parties hereto with respect to certain of the
representations and disclosures set forth in the Merger Agreement and the
related Schedules thereto.
NOW, THEREFORE, in consideration of the premises and intending to be
legally bound, for good and valuable consideration, the parties hereby agree as
follows:
1. The parties hereby recognize and agree that the Schedules to the Merger
Agreement, as such Schedules are attached to this Agreement as EXHIBIT
A, shall be considered the final Schedules to the Merger Agreement and
shall supersede and replace in their entirety any previous drafts of the
Schedules as such drafts may have been provided to any of the parties
prior to the date hereof.
2. Notwithstanding anything to the contrary in Section 2.5 (and Schedule
2.5) or Section 2.8 (and Schedule 2.8), the parties agree as follows:
(a) The Seller has provided the Purchaser with a copy of the
financial statements of the Seller as of June 30, 1996. Seller
represents that such financial statements were prepared in
accordance with past practice and fairly and accurately reflect
the financial condition of the Seller as of June 30, 1996
(except for adjustments required by GAAP, including, but not
limited to, timing differences between
accounting periods). The financial statements have been audited
by Xxxxxx Xxxxxxxx and Co. ("AA"), and AA has proposed
adjustments to comply with GAAP. Purchaser does not object to
the proposed adjustments.
(b) The Seller will prepare final financial statements as of the
Closing Date (the "CLOSING FINANCIAL STATEMENTS"). Such Closing
Financial Statements will be prepared consistent with Seller's
past practice, but will not be prepared in accordance with GAAP.
(c) Seller represents that since June 30, 1996, the Seller has
conducted its business only in the ordinary course. The Seller
also represents that there has been no material adverse change
in the financial condition of the Seller subsequent to June 30,
1996, and that the Closing Financial Statements will fairly and
accurately reflect the financial condition of the Seller as of
the Closing Date (without regard to adjustments required by
GAAP).
(d) If there is any inconsistency between the provisions of this
Agreement and Section 2.5 (and Schedule 2.5) or Section 2.8 (and
Schedule 2.8), the provisions of this Agreement shall control.
The provisions of this paragraph 2, Section 2.5 (and Schedule
2.5) and Section 2.8 (and Schedule 2.8) shall not limit
Purchaser's rights to indemnity with respect to any other
representation or other Section of the Merger Agreement.
3. Any trade accounts and notes receivable which are uncollectible will be
assigned by Purchaser to the Stockholders, but only if the total of such
uncollectible accounts and notes exceeds the amount of the reserve
established by AA (approximately $1,200,000, which shall include the
accounts receivable referenced in EXHIBIT B below), the $300,000
"basket" established in Section 2.9 of the Merger Agreement and
collections on trade accounts and notes previously written off, and
therefore the Stockholders are required to indemnify Purchaser and in
fact do so, and then only to the extent of such indemnity obligation.
The accounts and/or notes to be assigned shall be selected by Purchaser
in its sole discretion. EXHIBIT B attached hereto sets forth a listing
of certain trade accounts receivable written off by the Seller since
June 30, 1996.
4. This Agreement shall be governed by and construed in accordance with the
laws of the State of Texas, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed as of the day and year first above written.
THE YORK GROUP, INC.
By: /s/ XXXXX X. XXXX
Xxxxx X. Xxxx
Vice President
YORK ACQUISITION CORP. II
By: /s/ XXXXX X. XXXX
Xxxxx X. Xxxx
Vice President
WEST POINT CASKET COMPANY, INC.
By: /s/ XXXXXX XXX XXXXXXX
Xxxxxx Xxx Xxxxxxx
Chairman
/s/ XXXXXX XXX XXXXXXX
XXXXXX XXX XXXXXXX, individually
XXXXXXX XXXXXX XXXXXXX TRUST A
By: /s/ XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx, Trustee
XXXXXXX XXXXXX XXXXXXX TRUST B
By: /s/ XXXXX X. XXXXXXXX
Xxxxx X. Xxxxxxxx, Trustee
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