ASSET PURCHASE AGREEMENT
Exhibit
10.9
This
Asset Purchase Agreement (the “Agreement”) is
entered into as of April 2, 2007 (the “Effective
Date”),
by
and among Amish Co-op, Inc., a Delaware corporation (“Seller”),
Xxxxxx Xxxxxxxx, an individual (“Xxxxxxxx”),
Xxxxxxxx X. Xxxxxxx, an individual (“Xxxxxxx”
and
together with Xxxxxxxx, “Seller’s
Owners”
and,
together with Seller and Xxxxxxxx, the “Seller
Parties”),
and
Amish Natural Sub, Inc., an Ohio corporation (“Buyer”),
which
is a wholly-owned subsidiary of Amish Naturals, Inc., a Nevada corporation
(“ANI”).
Buyer
and the Seller Parties shall hereinafter individually be referred to as a
“Party”
and
collectively be referred to as the “Parties.”
RECITALS
WHEREAS,
Seller is engaged in the business of selling, via its website on the internet,
xxx.xxxxxxx-xx.xxx (and not from any physical retail presence), all-natural
gourmet foods and other items, placing an emphasis on products made by Amish
families or in the Amish tradition (the “Business”);
and
WHEREAS,
Buyer desires to purchase from Seller, and the Seller Parties desire that the
Seller sell and transfer to Buyer, certain assets of Seller on the terms and
subject to the conditions of this Agreement.
NOW,
THEREFORE, in
consideration of the premises, and the representations, warranties, covenants,
and agreements contained in the Transaction Documents (as hereinafter defined),
and for such other good and valu-able consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties hereto hereby agree as
follows:
ARTICLE
1
PURCHASE
AND SALE OF ASSETS
1. Purchase
and Sale of Assets
1.1 Purchase
and Sale.
Subject
to the terms and conditions of this Agreement, on the Closing Date (as defined
in Section 4.1 herein), Seller hereby agrees to sell, assign,
transfer, and deliver to Buyer, and Buyer agrees to purchase, accept, and
acquire from Seller, all of Seller’s right, title, and interest in and to the
“Purchased
Assets”
as
follows:
(a)
Any
and
all inventory of Seller relating to the Business, including, without limitation,
that certain inventory set forth on Schedule
1.1(a)
attached
hereto (the “Inventory”).
Schedule
1.1(a)
shall
include, but shall not be limited to, the name, location, description and
identification number (to the extent available) of all the
Inventory;
(b)
Any
and
all intellectual property of Seller relating to the Business, including without
limitation that certain intellectual property set forth on Schedule
1.1(b)
attached
hereto (the “IP”).
Schedule
1.1(b)
shall
include, without limitation, Seller’s tradename and website domain name, as used
in the Business;
(c)
The
warehouse real estate lease agreement set forth on Schedule
1.1(c)
attached
hereto (the “Lease
Agreement”)
and
all improvements and fixtures;
(d)
All
customer lists, vendor lists, and other compilations of data used in or related
to the Business;
(e)
Those
books and records of Seller directly related to the Purchased Assets, including
invoices, purchase orders, and vendor and customer correspondence;
(f)
To
the
extent transferable, all franchises, approvals, permits, licenses,
registrations, certificates, and similar rights obtained from governmental
bodies; and
(g)
All
goodwill and other intangible assets associated with the Purchased
Assets.
1.2 Excluded
Assets.
Notwithstanding any term herein to the contrary, Seller is not agreeing to,
and,
accordingly, shall not, sell, assign, transfer, or deliver to Buyer, and Buyer
is not agreeing to, and, accordingly, shall not, purchase, accept, or acquire
from Seller, any of Seller’s assets other than those assets specifically set
forth in Section 1.1 herein.
1.3 Free
and Clear of All Liens and Liabilities.
The
Purchased Assets shall be free and clear of all liens, liabilities, claims,
and
encumbrances, except as referred to in Section 1.1(c).
1.4 Delivery
of Purchased Assets.
As of
the Closing, Buyer shall take physical possession of the Purchased Assets at
Seller’s warehouse facilities located in Holmesville, Ohio, or at other
locations designated by Buyer.
ARTICLE
2
PURCHASE
PRICE
2.1 Purchase
Price.
The
purchase price for the Purchased Assets (the “Purchase
Price”) shall
be One Hundred Fifty Thousand Dollars ($150,000) and shall be paid by Buyer
to
Seller at Closing by wire transfer or delivery of good funds for such amount.
2.2 Purchase
Price Allocation.
The
Purchase Price shall be allocated among the Purchased Assets as set forth on
Schedule
2.2
attached
hereto. Seller and Buyer agree that the allocation will bind them for federal,
state, local, and foreign income tax purposes in connection with the purchase
and sale of the Purchased Assets and will be consistently reflected by them
on
any tax returns or reports they file or prepare. Seller and Buyer shall consult
with each other concerning all issues relating to such allocation in connection
with any tax audit and shall not initiate any positions inconsistent with such
allocation in connection with any tax audit.
ARTICLE
3
ASSUMPTION
OF SPECIFIED LIABILITIES
3. Assumption
of Specified Liabilities.
3.1 No
Assumption of Liabilities Unless Expressly Assumed.
Unless
as specifically provided in Section 3.2 below, Buyer does not assume and shall
not have any duty or obligation with respect to any liability, duty, contract,
agreement, or obligation of Seller or Seller’s Owners, whether by the terms of
this Agreement, by operation of law, or otherwise, whether or not associated
with the Business or any of the Purchased Assets.
3.2 Specification
of Liabilities Assumed.
Seller
hereby agrees that Buyer has the right, but not the obligation, to assume,
satisfy, and perform when due all liabilities, duties, contracts, agreements,
and obligations of Seller arising or accruing from and after the Closing Date
directly and solely related to the Lease Agreement and any purchase orders
that
had been received by the Seller prior to the Closing Date, which related to
the
purchase of products from the Business, if such purchase orders had not been
fulfilled, in whole or in part, as of the Closing Date (collectively,
the “Assumed
Liabilities”).
Buyer
shall have no obligation to tender to Seller any economic benefit received
by
Seller in respect of fulfilling any such purchase orders.
ARTICLE
4
CLOSING
DATE
4. Closing
Date.
4.1 Closing
Date.
Provided
that all conditions precedent set forth in this Agreement have been satisfied
or
waived, the closing of the transactions contemplated hereby (the “Closing”) shall
occur on April 2, 2007, or such other date as shall be mutually agreed upon
by
the Parties hereto (the “Closing
Date”).
The
Closing shall be held on the Closing Date at 10:00 a.m. PST at the offices
of
Xxxxx Xxxx LLP, located at 0000 Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxx
00000, unless another place is mutually agreed upon by the Parties.
4.2 Date
of Transfer.
Provided
that the Closing occurs, it is the intent of the Parties that the Purchased
Assets be transferred to Buyer effective as of the Closing Date. Further, the
Assumed Liabilities shall be transferred to and assumed by Buyer effective
as of
the Closing Date.
ARTICLE
5
REPRESENTATIONS
AND WARRANTIES OF SELLER PARTIES
5. Representations
and Warranties of Seller Parties. As
a
material inducement to Buyer to enter into this Agreement, the Seller Parties,
jointly and severally, make the following representations and warranties to
Buyer, each of which the Seller Parties, jointly and severally, represent to
be
true and correct. The schedules delivered pursuant to this Article 5 (the
“Disclosure
Schedules”)
shall
be arranged in paragraphs corresponding to the numbered and lettered paragraphs
contained in this Article 5, and the disclosure in any paragraph shall qualify
other paragraphs in this Article 5 only to the extent that it is reasonably
apparent from a reading of such disclosure through appropriate cross-referencing
that it also qualifies or applies to such other paragraphs.
5.1 Organization
and Qualification.
Seller
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Delaware, with all necessary corporate power and
authority to own or use its property that it now owns or uses and to carry
on
its business as it is now being conducted. Seller is duly qualified to do
business and is in good standing in each jurisdiction where the ownership,
lease, or operation of its property or the conduct of its business requires
such
qualification, except where the failure to be in good standing or so qualified
would not have a material adverse effect on Seller or the Business. At the
date
hereof, Seller is authorized to issue one class of stock of up to one thousand
five hundred (1,500) shares of common stock, $1.00 par value per share, and
of
such authorized shares, one thousand five hundred (1,500) shares (the
“Seller
Stock”)
have
been validly issued and are outstanding. The Seller Stock is fully paid,
non-assessable, and is entirely owned of record and beneficially by Seller’s
Owners, neither of whom has granted any options in the Seller Stock to any
person. There are no options, warrants, or other secur-ities exercisable or
convertible into, or any calls, commitments, agreements, or obligations of
any
kind relating to, any unissued equity securities of Seller.
5.2 Authorization
and Validity.
Each of
the Seller Parties has the requisite power and is duly authorized to execute
and
deliver and to carry out the terms of this Agreement and to execute, deliver
and
perform its respective obligations under the documents required at the Closing
pursuant to Article 10 (the “Closing
Documents”) and
any other documents this Agreement contemplates. All action required, by law
and/or Seller’s Certificate of Incorporation and Bylaws or otherwise, to
authorize the execution and delivery of this Agreement, the Closing Documents
and the consummation of the transactions contemplated hereby has been taken.
This Agreement, the Closing Documents and all other documents contemplated
by
this Agreement are, or will be upon execution, legal, valid and binding
obligations of the Seller Parties,
duly
enforceable against the Seller Parties according to their terms, except as
may
be limited by (i) bankruptcy, insolvency, moratorium, or other similar laws
affecting creditors’ rights gener-ally, and (ii) general principles of
equity relating to the availability of equitable remedies.
5.3 Consents
and Approvals.
Except
for that stated on Schedule
5.3,
no
consent, approval, notification or authorization is required in connection
with
the execution, delivery, and performance of this Agreement or any Closing
Document by the Seller Parties or the consummation of any transactions
contemplated hereby, including but not limited to any “bulk sale” notice or
similar filing, publication or notice by any Party under the laws of the State
of Delaware or the State of Ohio in connection with the transactions
contemplated hereby.
5.4 No
Defaults.
Seller
is not in default under or in violation of (i) any provision of its
Certificate of Incorporation or Bylaws; (ii) any material provision of any
indenture, mortgage, deed of trust, lease, loan agreement, or other agreement
or
instrument to which it is a party or by which it is bound or to which any of
Seller’s property is subject (including without limitation the Contracts, as
that term is defined hereinafter), if such default would have a material adverse
effect on Seller, the Business, or the Purchased Assets; or (iii) any
statute, law, ordinance, order, judgment, rule, regulation, permit, franchise,
or other approval or authoriza-tion of any court or governmental agency or
body
having jurisdiction over it or any of Seller’s properties which, if enforced,
would have a material adverse effect on Seller, the Business, or the Purchased
Assets. The execu-tion and delivery of this Agreement, the Closing Documents
and
any other documents contemplated hereunder or thereunder; the Seller Parties’
performance of their respective obligations under this Agreement, the Closing
Documents and other documents; or the consumma-tion of the transactions
contemplated herein will not conflict with, result in a breach of or, constitute
a default under any of the foregoing, require the payment of any prepayment
or
other penalties, or re-xxxx in the creation of any lien, mortgage, pledge,
charge, or en-cumbrance upon any asset of Seller. Furthermore, no consents
or
waivers thereunder are required to be obtained or notices be given in connection
therewith in order to execute and deliver this Agreement, the Closing Documents
and/or any other documents contemplated hereunder or thereunder or to
consum-mate the transac-tions contemplated by this Agree-ment.
5.5 Documents.
The
copies and/or originals of all agreements, books and records related to the
Purchased Assets, and other instru-ments (including any financial statements
relating to the Business provided to Buyer prior to Closing) that have been
delivered by the Seller Parties to Buyer are true, correct, and complete copies
and/or originals of such agreements, books, records, and instru-ments, and
include all amend-ments thereto.
5.6 Litigation.
There
are no actions, suits, proceedings, orders, investigations, or claims
(collectively, “Proceedings”)
pending or threatened against or affecting Seller, the Business or the Purchased
Assets, or that may interfere with the timely consummation of the transactions
contemplated by this Agreement, at law or in equity, or before or by any
governmental department, commis-sion, board, bureau, agency, or instrumentality.
Seller is not operating under or subject to, or in default with re-spect to,
any
order, writ, injunc-tion, or decree of any court or federal, state, municipal,
or other governmental depart-ment, commis-sion, board, agency, or
instrumen-tality. Neither of the Seller Parties has any Knowledge (defined
below) of the basis for any such action, suit, proceeding, order, investigation,
or claim. “Knowledge”
is
defined to include actual knowledge and what a reasonably prudent person would
discover upon due inquiry and investigation.
5.7 Products.
During
its existence, Seller has not had (a) any notification, in writing or otherwise,
relating to or (b) any claims, demands, causes of action (including third-party
claims, demands, and causes of action, whether directly or for contribution
or
indemnification), losses, damages, expenses (including attorney’s fees), and/or
liabilities of any kind and nature asserted by any person that arises out of
or
results from any one or more of the following, with respect to products sold
by
the Seller in relation to the Business: (i) any breach by any manufacturer
of
any of its representations, warranties, or covenants; (ii) without limiting
the
preceding, any defective product; (iii) any recall of any product, regardless
of
who initiated the product recall; and/or (iv) any negligent act or omission
by a
manufacturer. In addition, the Seller has not issued or been required to issue
any notification, in writing or otherwise, to any person about the quality,
manner of consumption, or spoilage of any products sold by the Seller in
relation to the Business, or for any other reason. Furthermore, there has been
no, or any notice received of, death, personal injury, or loss of property
to
unrelated third parties, whether during any warranty period or after its
expiration, in connection with any products of the Business.
5.8 Inventory.
Except
for obsolete items and items below standard quality, all of which will have
been
written off or written down to net realizable value, all Inventory will (a)
consist of inventory manufactured or acquired in bona fide transactions in
the
ordinary course of business; (b) be of a quality and quantity usable and salable
in the ordinary course of business; and (c) not exceed the shelf life that
would
adversely affect the qualitative performance characteristics or the quality
of
the ingredients. All inventories not written off will be reflected in the
appropriate documents at the lower of average cost or market on a last-in,
first-out basis. The quantities of each item of Inventory (whether raw
materials, work-in-process or finished goods) will not be excessive, but will
be
reasonable in the circumstances of the Business.
5.9 Title
to Properties.
Seller
is the sole owner of and has good, complete, and marketable title to, and full
rights to utilize, the Purchased Assets, free and clear of liens, claims, and
encumbrances. At the Closing, Seller will convey and transfer to Buyer good,
complete, and marketable title to all of the Purchased Assets, free and clear
of
restrictions or conditions to transfer or assignment, and free and clear of
all
liens, claims, and encumbrances.
5.10 Real
Property.
Schedule
5.10
sets
forth a description of all real property and real property interests currently
owned, leased or otherwise held by Seller (“Real
Property”).
Schedule
5.10
also
sets forth a list of
all
leases of real property to which Seller is a signatory or by which it is bound
or affected (collectively, the “Real
Property Leases”).
Seller owns valid and binding leasehold interests in the Real Property Leases.
The Real Property Leases are in full force and effect and have not been
terminated. No event has occurred and no condition exists which, with the giving
of notice or the lapse of time or both, will constitute a default under any
of
the Real Property Leases. Seller has not sublet or assigned any portion of
the
Real Property. To
Seller
Parties’ Knowledge, none of the Real Property is the subject of any condemnation
action and, to Seller Parties’ Knowledge, there is no proposal under
consideration by any governmental body to take or use any of the Real Property.
To Seller Parties’ Knowledge, the Real Property has direct access on a public
way with sufficient road frontage to satisfy all necessary Laws.
5.11 Condition
and Sufficiency of Assets.
To
Seller
Parties’ Knowledge, the
buildings, plants, structures, furniture, fixtures and/or equipment owned or
used by Seller and included in the Purchased Assets: (a) are structurally sound,
are in good operating condition and repair,
are
adequately serviced by all required utilities
and are
adequate for the uses to which they are being put; (b) do not need maintenance
or repairs except for ordinary, routine maintenance and repairs;
and (c)
are sufficient for the continued conduct of the Business
as
it
is
currently being conducted.
5.12 Compliance
with Laws.
Seller
has complied with and is not in violation of any federal, state, county, or
local statute, law, rule, regulation, ordinance, guidance, code, license, use,
permit, franchise, judgment, decree, writ, injunction, and/or order
(collectively, “Laws”) applicable
to the Purchased Assets. Neither of the Seller Parties has received any notice
alleging non-compliance with any Law. There are no present or past conditions
relating to the Purchased Assets arising from or related to any past or present
storage, spill, discharge, leak, emission, injection, escape, dumping, or
release of any kind whatsoever of any hazardous material or any generation,
transportation, treatment, storage, or disposal of waste materials, raw
material, or other products of any kind or from the storage, use, or handling
of
any hazardous material or other substances. Seller has no reason to anticipate
that any existing circumstances are likely to result in a violation of any
Laws.
5.13 Permits
and Licenses.
To
Seller Parties’ Knowledge, all governmental authorizations necessary to carry on
the Business as presently conducted are set forth in Schedule
5.13
and have
been timely obtained, are in full force and effect and have been complied with.
All fees and charges incident to those governmental authorizations have been
fully paid and are current, and no suspension or cancellation of any
governmental authorization has been threatened or to Seller Parties’ Knowledge
could result by reason of the transactions contemplated by this Agreement.
5.14 Liabilities.
Seller
has no liabilities or obligations, including without limitation any debt,
accounts payable, indebtedness, commitment, unpaid tax liability or other
obligation of any nature, incurred in connection with the Purchased Assets
(whether known or unknown and whether absolute, accrued, contingent, unasserted,
secured, unsecured or otherwise), except those set forth in Schedule 5.14.
Schedule
5.14
also
sets forth any liabilities and/or obligations of Seller that are being assumed
by Buyer at Closing.
5.15 No
Other Agreements to Sell the Assets.
Neither
the Seller Parties nor any of Seller’s officers or affiliates has any commitment
or legal obligation, absolute or contingent, to any other person or entity
other
than Buyer to sell, assign, transfer, or effect a sale of any of the Purchased
Assets, to sell or effect a sale of any of the capital stock of Seller, to
effect any merger, consolidation, liquidation, dissolution, or other
reorganization of Seller, or to enter into any agreement or cause the entering
into of an agreement with respect to any of the foregoing.
5.16 Taxes.
All tax
returns or statements required to be filed with respect to the operations or
assets of Seller prior to the Closing Date have been correctly prepared in
all
material respects and timely filed, and all taxes, and penalties and interest,
if any, required to be paid in respect of the periods covered by such returns
have been paid in full or adequate reserves have been established for the
payment of such taxes. All known deficiencies of any tax, assessment, or
government charge or duty have been paid in full or adequate reserves have
been
established for the payment of such taxes. No audits or investigations by
federal or state authorities are currently pending or threatened. Furthermore,
Seller has complied in all material respects with all applicable Laws relating
to the payment and withholding of taxes and has, within the time and the manner
prescribed by such Laws, withheld and paid over to the proper governmental
authorities all amounts required to be so withheld and paid over under the
applicable Laws.
5.17 Intellectual
Property.
To
Seller Parties’ Knowledge, Seller owns or has the right to use, pursuant to
license, sublicense, agreement or permission, all IP. The use of IP has not
infringed any intellectual property of any other person and, to Seller Parties’
Knowledge, there is no infringement of or unlawful use by any other person
of
any of the IP. Schedule 5.17
also
sets
forth a list of all contracts relating to IP to which Seller or any affiliate
is
a party or by which Seller or any affiliate is bound or affected to any material
extent, excluding: (i) license agreements for “off the shelf” computer software
and other commercially available products and (ii) any licenses implied by
the
sale of a product. None of the IP owned or used by Seller is subject to any
pending, or threatened, Proceedings, and there is no valid basis for asserting
any such Proceeding. No IP owned or used by Seller is subject to any outstanding
order restricting the use by Seller (or Buyer following the Closing) of that
IP.
The IP included among the Purchased Assets is all that is necessary for the
operation of the Business as presently conducted.
5.18 Subsidiaries.
(a) Seller has no subsidiaries; (b) Seller does not own, beneficially, of
record or otherwise, any securities of any entity; (c) Seller is not a
party or subject to any partnership, joint venture, or similar agreement or
arrangement; and (d) except shares of common stock of ANI owned of record or
beneficially by Seller’s Owners (or Seller’s Owners’ spouses), no Seller
Party owns, directly or indirectly, any security or financial interest in any
other entity or concern which competes with or does business with Seller or
which would interfere with the performance of any duties it/they owe to Seller.
5.19 Employees,
Labor Relations.
(a) Schedule
5.19
contains, as of a recent date specified therein, the following information
for
each employee of Seller (including each employee on leave of absence or layoff
status): name; job title; hire date; current compensation paid or payable;
vacation accrued; eligibility to participate under any Employee Benefit Plan;
and citizenship. Seller Parties have no Knowledge that any employee intends
either to (i) discontinue employment with Seller either prior or subsequent
to
the Closing or (ii) refuse employment by Buyer (taking into account the
employment arrangements and policies to be implemented after the
Closing).
(b) Neither
Seller, nor any affiliate of Seller, is now or has ever been a party to any
collective bargaining or other labor contract. In the last five (5) years there
has not been, there is not presently pending or existing, and to Seller Parties’
Knowledge there is not threatened, with respect to Seller or any of its
premises: (i) any strike, slowdown, picketing, work stoppage, lockout,
organizational activity or other labor dispute or Proceeding; (ii) any
application or complaint filed by any employee or union with any governmental
body; or (iii) any application or demand for recognition or certification
of a collective bargaining agent. To Seller Parties’ Knowledge, there is not
currently, nor has there been in the past five years, any internal investigation
of any charge or complaint by any employee of Seller alleging harassment,
discrimination or other employment conduct which could give rise to liability.
To Seller Parties’ Knowledge, all Laws relating to Seller’s employees, including
Laws relating to terms of employment, immigration and employment of illegal
aliens, the payment of social security and other payroll taxes, the payment
of
employee wages and benefits (including overtime pay) and occupational safety
and
health, have been complied with in all material respects.
(c) All
of
Seller’s employees and consultants are employed or engaged on an “at will”
basis, and Seller may terminate such employment or consulting arrangement at
any
time without any liability for severance or any other obligation, except its
obligation to pay unpaid accrued salary or consulting fees and vacation pay
and
to provide group health insurance in accordance with the Consolidated Omnibus
Reconciliation Act (“COBRA”).
Except as set forth on Schedule
5.19,
Seller
has not made any statement or taken any action which could reasonably be
expected to result in an employee being found to be entitled to indefinite
employment, employment for a particular term or subject to termination only
for
cause.
(d) A
copy of
each employee policy manual, handbook or other employment policy provided or
applicable to the employees of Seller, and a copy of the employment application
forms, form offer letters and other hiring documents (including pre-employment
tests) currently being used by Seller or which have been used by Seller in
the
last two years, in connection with the hiring of any new employees, have been
provided or made available to Buyer, and all such copies provided to Buyer
are
true and complete. To Seller Parties’ Knowledge, all of its employees are either
U.S. citizens or permanent resident aliens.
5.20 Employee
Benefit Plans.
Seller
has no employee benefit plans.
5.21 Contracts
and Agreements.
Except
as indicated on Schedule 5.21 attached
hereto, Seller has no contracts, agreements, arrangements or commitments
material to the Business other than that disclosed on Schedule
1.1(c).
Seller
has supplied Buyer with a true and correct copy and/or description of each
such
contract, agreement, arrangement and commitment. Each of the contracts,
agreements, arrangements and commitments listed in Schedules
1.1(c) and 5.21
(each a
“Contract”
and
collectively, the “Contracts”)
is in
full force and effect and constitutes a legal, valid and binding obligation
of
the parties thereto and is enforceable in accordance with its terms. Seller
has
complied with the terms of each Contract and is not in default under any
Contract, and no event has occurred which, with the passage of time, would
constitute a default or cause an acceleration of any obligation in connection
therewith. To the Seller Parties’ knowledge, no other party is in default in any
material respect under any Contract.
5.22 Insurance.
Schedule
5.22
sets
forth a list of all policies of insurance of Seller. All of the policies of
insurance set forth in Schedule
5.22
are
(a) outstanding and in full force and will remain in full force following
the Closing; and (b) are sufficient for compliance with all Laws and
Contracts to which the Seller is a party or is bound or affected. Seller has
not
been refused insurance by any carrier to which it has applied for insurance
within the past five (5) years. Seller has paid all premiums due by it and
has otherwise performed all of its obligations under its insurance policies.
The
policies to which Seller is a party or that provide coverage to Seller, or
any
director or officer of Seller, taken together, provide adequate insurance
coverage for the assets and the operations of Seller for all risks normally
insured against by a person carrying on the same business or businesses as
Seller. Seller has had no claims or loss experience under any insurance policy
at any time during the three-year period immediately preceding the date hereof.
5.23 Material
Change.
There
has been no material change in the condi-tion (financial or otherwise) of
Seller since February 28, 2007 through the Closing Date, except changes
occurring in the ordinary course of business, which changes have not material-ly
adversely af-fected its organiza-tion, business, proper-ties, condi-tion or
prospects.
5.24 Adverse
Facts and Circumstances.
Seller
does not know of any facts or circumstances which might result in any material
adverse change in the condition (financial or otherwise), business, properties
or prospects of the Business or which might materially and adversely affect the
Purchased Assets.
5.25 Customers
and Suppliers; Certain Relationship.
Schedule
5.25
sets
forth a list of the twenty (20) largest customers and suppliers of Seller (by
dollar volume) in terms of sales or purchases for the 12 months ended December
31, 2006 and December 31, 2005. To Seller Parties’ Knowledge, (i) the
relationships with the customers and suppliers set forth in Schedule
5.25
are
commercially sound, (ii) there has not been any material adverse change or
development in the business relationship with any customer or supplier set
forth
in Schedule
5.25,
and
(iii) no such customer or supplier has stated to Seller any present intention
to
discontinue its relationship with Seller. None of Seller, or any of its
affiliates or related persons, is an owner, shareholder, creditor or agent
of,
or consultant or lender to, any person engaged in a business that acts as a
supplier of any goods or services to Seller or any part of which is in actual
or
potential competition with Seller.
5.26 Schedules.
Schedules
1.1(a), 1.l(b), and 1.1(c)
are each
full, accurate and complete listings of the Inventory, IP, and Lease Agreement,
respectively.
5.27 Brokerage
and Finder’s Fees.
The
Seller Parties have not engaged any investment banker, broker, finder, or
similar agent for the transactions this Agreement contemplates which might
give
right to any brokerage fee, finder’s fee, commission or similar liability on the
part of Seller or Seller’s Owners.
5.28 Material
Misstatements or Omissions.
No
representations or warranties of the Seller Parties contained in this Agreement,
the schedules and exhibits hereto, any Closing Document or any other document
delivered by a Seller Party contain an untrue statement of a material fact,
or
omit to state a material fact necessary to make the statements contained herein
or therein not misleading.
5.29 Acknowledgement.
Seller
Parties acknowledge Buyer is a newly formed entity and was specifically formed
by ANI for the purpose of entering into this Agreement and consummating the
transactions contemplated hereby.
ARTICLE
6
REPRESENTATIONS
AND WARRANTIES OF BUYER
6. Representations
and Warranties of Buyer. As
a
material inducement to the Seller Parties to enter into this Agreement, Buyer
represents and warrants the following as of the Effective Date:
6.1 Organization
and Qualification.
Buyer
is a corporation duly organized, validly existing, and in good standing under
the laws of the State of Ohio, with all necessary corporate power and authority
to own or use its property that it now owns or uses and to carry on its business
as it is now being conducted.
6.2 Authorization
and Validity.
Buyer
has the requisite power and is duly authorized to execute and deliver and to
carry out the terms of this Agreement and to execute, deliver and perform its
obligations under the Closing Documents and any other documents this Agreement
contemplates. Buyer has taken all action required by law to authorize the
exe-cution and delivery of this Agreement, the Closing Documents and the
consummation of the transactions contemplated hereby. This Agreement, the
Closing Documents and all other documents contemplated hereunder or thereunder
are, or will be upon execution, legal, valid and binding obligations of
Buyer,
duly
enforceable against Buyer according to their terms, except as may be limited
by
(i) bankruptcy, insolvency, moratorium, or other similar laws affecting
creditors’ rights gener-ally, and (ii) general principles of equity
relating to the availability of equitable remedies.
6.3 Brokerage
and Finder’s Fees.
Buyer
has not engaged any investment banker, broker, finder, or similar agent for
the
transactions this Agreement contemplates which might give right to any brokerage
fee, finder’s fee, commission or similar liability on the part of
Buyer.
ARTICLE
7
COVENANTS
7. Covenants
of the Parties.
7.1 Conduct
of Business of Seller.
During
the period between the Effective Date and continuing until the earlier of
termination of this Agreement or the Closing, Seller and Seller’s Owners agree
(except to the extent that Buyer shall otherwise consent in writing, which
consent shall be made in Buyer’s sole and absolute discretion) to carry on
its business in the usual, regular and ordinary course in substantially the
same
manner as it is currently being conducted and use all reasonable efforts
consistent with past practices and policies to preserve in tact its present
business organization. Without limiting the generality of the foregoing, without
the prior written consent of Buyer (which consent shall be made in Buyer’s sole
and absolute discretion), Seller shall not:
(a) sell,
pledge, lease, dispose of, grant, encumber or otherwise authorize the sale,
pledge, disposition, grant or encumbrance of any Purchased Asset;
(b) incur
any
further debt, accounts receivable, indebtedness, commitments, or other such
liability; or
(c) enter
into a contract to do any of the foregoing, or authorize or announce an
intention to do any of the foregoing.
7.2 Access
to Information.
Seller
shall afford Buyer access during the period from the Effective Date to the
Closing to all of Seller’s personnel, property, books, contracts and records and
shall provide Buyer copies of such books, contracts, and records at Buyer’s
request.
7.3 Best
Efforts.
The
Seller Parties hereby covenant and agree that each shall use its best efforts
to
cause the lessor of the premises, which is the subject of the Lease Agreement,
to consent to the assignment of the Lease Agreement and all related items from
Seller to Buyer.
7.4 Reasonable
Best Efforts; Notice; Further Assurances.
Each
Party will use its reasonable best efforts to fulfill the conditions required
to
be fulfilled by it to bring about the timely consummation of the transactions
contemplated by this Agreement. Each Party will give prompt notice to the other
Parties of the occurrence of any event or the failure of any event to occur
that
might preclude or interfere with (i) the satisfaction of any condition precedent
to the obligations of any Party under this Agreement; (ii) the truth and
accuracy of any Party’s representations or warranties under this Agreement; or
(iii) the timely consummation of the transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, Seller will
promptly notify Buyer of any fact or circumstance which could constitute a
breach of Seller’s representations and warranties set forth in Article 5.
After the Closing, each Party will take all such further actions, execute and
deliver all such further documents and do all other acts and things as another
Party may reasonably request for the purpose of carrying out and documenting
the
intent of this Agreement and the other Transaction Documents and for the purpose
of assisting the other Party in the enforcement of any rights obtained pursuant
to this Agreement. Should any such fact or condition require any change in
the
Disclosure Schedules if such Schedules were dated the date of the occurrence
or
discovery of any such fact or condition, the Seller Parties will promptly
deliver to the Buyer a supplement to the Disclosure Schedules specifying such
changes; provided,
however,
that
the determination of whether the conditions to Closing set forth in Article
9
have been met shall be made without giving effect to any such supplement to
the
Disclosure Schedules; provided,
further,
that
such supplement shall not be considered as part of the Disclosure Schedules
for
purposes of determining whether representations and warranties have been
breached in respect of indemnification claims being made pursuant to Article
11
hereof. Any portion of the Disclosure Schedules and any Schedule which is
delivered after the execution of this Agreement and on or prior to the Closing
Date shall be deemed to be a supplement to the Disclosure Schedules, and as
such, shall be treated in the same manner as a supplement to the Disclosure
Schedules described in the preceding sentence.
7.5 Intentionally
Omitted.
7.6 Prorations
.
(a) All
items
that affect the Business or the Purchased Assets and that relate, in whole
or in
part, to periods on or prior to the effective time of the Closing, will be
apportioned as of the Closing Date (the “Proration
Items”),
and
representatives of Seller and Buyer will, if practicable, examine all relevant
books and records as of the Closing Date in order to make the determination
of
such apportionments. The net amount of all Proration Items will be settled
and
paid on the Closing Date to the extent practicable, or as soon thereafter as
is
reasonably possible. In the event that the amount of any of the Proration Items
is not known by Seller and Buyer at the Closing, the proration will be made
based upon the amount of the most recent cost of such Proration Item to Seller.
After Closing, Buyer and Seller each will provide to the other prompt written
notice of each invoice relating to any Proration Item so estimated. Within
ten
days thereafter, Buyer and Seller will make any payment to the other that is
necessary to compensate for any difference between the proration made at the
Closing and the correct proration based on the actual invoice. Seller and Buyer
will each fully cooperate to avoid, to the extent legally possible, the payment
of duplicate personal property taxes, and each will furnish, at the request
of
the other, proof of payment of any personal property taxes or other
documentation that is a prerequisite to avoiding payment of a duplicate
tax.
(b) If
either
Buyer or Seller (a “Payor”)
pays a
Proration Item for which the other (a “Payee”)
is
obligated in whole or in part under this Section 7.6, the Payor will present
to
the Payee evidence of payment and a statement setting forth the Payee’s
proportionate share of such Proration Item, and the Payee will promptly pay
its
share to the Payor. In the event either Buyer or Seller (as applicable, a
“Recipient”)
receives payments, or the benefit of payments, of a Proration Item to which
the
other (a “Beneficiary”)
is
entitled in whole or in part under this Agreement, the Recipient will promptly
pay such amount to the Beneficiary.
7.7 Public
Announcements.
During
the period from the date of this Agreement to the Closing Date, no Party will
issue any press release or otherwise make any public statements or announcements
concerning this Agreement or the transactions contemplated by this Agreement
without the prior written consent of the other. Following the Closing, Buyer
and
Seller will make an announcement regarding the transaction contemplated by
this
Agreement in a mutually agreed upon form. Notwithstanding the foregoing, no
Party will be prevented at any time from disclosing any information that is
publicly available, from furnishing any required information to any governmental
body or from complying with that Party’s legal obligations, provided that it
gives reasonable advance notice of such action to the other Parties.
7.8 Repayment
of Indebtedness.
Seller
Parties will fully discharge all indebtedness related to the Business and the
Purchased Assets prior to the Closing.
ARTICLE
8
CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF
SELLER
AND SELLER’S OWNERS
8. Conditions
Precedent to the Obligations of the Seller Parties.
The
obligations of the Seller Parties to consummate the transactions contemplated
by
this Agreement are subject to the satisfaction, at or before the Closing, of
all
of the following conditions, each of which shall be deemed independent,
severable, and waivable in whole or in part at the option of the Seller
Parties:
8.1 Correctness
of Representations and Warranties.
All
representations and warranties of Buyer in this Agreement, the Closing Documents
and any other documents executed and/or delivered in connection herewith,
including without limitation any exhibits or schedules hereto (collectively,
the
“Transaction
Documents”),
shall
be true and accurate at and as of the Closing Date as though made at that
time.
8.2 Performance
of Obligations.
All of
the covenants, agreements, and conditions of Buyer contained in the Transaction
Documents and required to be performed, complied with, or satisfied by it on
or
before the Closing shall have been performed, complied with, or
satisfied.
8.3 Delivery
of Instruments.
The
Seller Parties shall have received from Buyer the documents set forth in Section
10.2.
8.4 Consents
and Approvals.
All
approvals and consents required to be obtained by Buyer with respect to the
transactions contemplated under the Transactions Documents shall have been
received.
ARTICLE
9
CONDITIONS
PRECEDENT TO THE OBLIGATIONS OF BUYER
9. Conditions
Precedent to the Obligations of Buyer.
The
obligations of Buyer to consummate the transactions contemplated by this
Agreement are subject to the satisfaction, at or before the Closing, of all
of
the following conditions, each of which shall be deemed independent, severable,
and waivable in whole or in part at the option of Buyer:
9.1 Correctness
of Representations and Warranties.
All
representations and warranties of the Seller Parties contained in the
Transaction Documents shall be true and accurate at and as of the Closing Date
as though made at that time.
9.2 Performance
of Obligations.
All of
the covenants, agreements, and conditions of the Seller Parties contained in
the
Transaction Documents and required to be performed, complied with, or satisfied
by it on or before the Closing shall have been performed, complied with, or
satisfied.
9.3 Delivery
of Instruments.
Buyer
shall have received from the Seller Parties the documents set forth in Sections
10.1(a) and 10.1(c).
9.4 Consents
and Approvals.
All
approvals and consents required to be obtained by the Seller Parties with
respect to the transactions contemplated under the Transaction Documents shall
have been received.
9.5 No
Litigation.
No
action or proceeding shall be threatened or pending against Seller that has
resulted or is likely to result in a judgment, decree, injunction, or order
that
would prevent or make unlawful the consummation of the transactions under this
Agreement.
9.6 Additional
Disclosure.
Buyer
must be satisfied, in its sole discretion, with any additional disclosures
made
with respect to representations and warranties and exceptions thereof between
the Effective Date and the Closing Date.
9.7 Material
Adverse Effect.
Since
the Effective Date, there shall not have occurred any changes, events, or
effects, which in Buyer’s discretion, shall have had a material adverse effect
on the Business or the Purchased Assets.
ARTICLE
10
CLOSING
DELIVERIES
10. Closing
Deliveries.
10.1 Seller
Parties’ Deliveries.
In
connection with and at the time of the Closing, the Seller Parties shall deliver
to Buyer the following:
(i) this
Agreement;
(ii) a
xxxx of
sale relating to the Purchase Assets substantially in the form of Exhibit
A
attached
hereto;
(iii) any
and
all documents necessary for valid, legal transfer of IP, including without
limitation any and all tradenames and domain names;
(iv) an
assignment and assumption of the Lease Agreement; and
(v) all
other
instruments and documents required to consummate the transactions contemplated
by the Transaction Documents.
(c) Corporate
Action.
Original executed
resolutions of the Board of Directors of Seller and of Seller’s Owners
authorizing the transactions contemplated hereby, dated the Closing Date;
(d) Books
and Records; Consents.
The
books and records directly related to the Business and the Purchased Assets
for
the 24-month period ending as of December 31, 2006, and for the interim period
thereafter through the Closing Date, to the extent the Seller Parties possess
said books and records, and all items listed on Schedule
5.3.
10.2 Buyer’s
Deliveries.
In
connection with and at the time of the Closing, Buyer shall deliver to Seller
executed copies of each of the documents listed in Section 10.1(a), to the
extent that Buyer is a party to such document, and the Purchase Price, pursuant
to Section 2.1.
ARTICLE
11
SURVIVAL
AND INDEMNIFICATION; REMEDIES
11. Survival
and Indemnification; Remedies.
11.1 Survival
and Indemnification.
All
representations, warranties, covenants, and obligations of the Seller Parties
in
the Transaction Documents will survive the Closing. The remedies provided in
this Article 11 will not be exclusive of or limit any other remedies that
may be available to Buyer. The Seller Parties, jointly and severally, shall
indemnify Buyer and its affiliates, employees, agents, representatives,
successors, and permitted assigns (collectively, the “Buyer
Parties”)
and
hold them harmless against any loss, liability, taxes, demand, claim, action,
cause of action, cost, damage, deficiency, penalty, fine, or expense, whether
or
not arising out of third party claims (including, without limitation, interest,
penalties, reasonable attorneys’ fees and expenses, and all amounts paid in
investigation, defense, or settlement of any of the foregoing) suffered or
incurred by Buyer which arise, result from, or relate to any liability or other
obligation of Seller not specifically assumed by Buyer under the Transaction
Documents, or any misrepresentation or breach by a Seller Party of any of
its/her representations or warranties or any nonfulfillment or breach by a
Seller Party to perform any of its/her covenants, agreements, or other
provisions in the Transaction Documents. The Seller Parties’ requirement to
provide indemnification under this Article 11 shall terminate three years after
the Closing Date, except for those matters relating to taxes, employee benefits,
environmental, and
stockholder capitalization, for which the requirement shall be indefinite.
11.2 Right
to Set-Off.
From
and after the Closing Date and following delivery of the Purchase Price payable
at Closing to the Seller in accordance with Section 2.1, upon notice to the
Seller Parties specifying in reasonable detail the basis for such set-off,
the
Buyer may set-off any amount which the Buyer may be entitled to hereunder (the
“Set-Off
Amount”) against
amounts otherwise payable for any reason by Buyer to the Seller Parties. The
Set-Off Amount shall be deposited and held in an escrow account to be determined
by Buyer, pursuant
to an escrow agreement with customary terms, including release terms with
respect to the ownership and distribution of the Set-Off Amount, which terms
shall require the receipt by the escrow agent of joint written instructions
for
release from both of the Seller Parties and Buyer or the receipt of a final
non-appealable binding judgment or order from a court or arbitral authority
of
competent jurisdiction. The
exercise of such a right of set-off by Buyer in good faith, whether or not
ultimately determined to be justified, will not constitute a breach of Buyer’s
agreements or obligations under this Agreement.
ARTICLE
12
NONCOMPETE
12. Non-Competition.
12.1 Non-Competition
12.1.a.1 .
In
consideration of the execution of this Agreement and the consummation of the
transactions contemplated hereby, and without the making of any additional
payment for or in respect of the covenants and agreements made in this
Section 12.1, each of the Seller Parties hereby covenants and agrees
it/she/he shall not, for a period of two (2) years after the Closing Date
(“Non-Compete
Period”),
directly or indirectly, in any county and/or city in the United States of
America engage in, or have any interest in, or manage, or operate or otherwise
participate in, or encourage, counsel, advise or financially assist, or support
such Seller Parties’ affiliate, spouse, or other immediate family member that
resides with him/her to be or become involved in, any activity with any person,
firm, corporation, partnership or business (whether as an advisor, director,
officer, employee, agent, representative, principal, partner, security holder,
consultant or otherwise) that engages in the business of selling, via its
website on the internet (and not from any physical retail presence), all-natural
gourmet foods and other items, placing an emphasis on products made by Amish
families or in the Amish tradition. Each of the Seller Parties acknowledges
and
agrees that these restrictions are a material part of the consideration given
in
this transaction and that Buyer would not have entered into this Agreement
without the Seller Parties agreement to be bound by these provisions.
12.2 Invalidity.
If any
of the foregoing provisions of this Article 12 are determined by any court
of
competent jurisdiction to be unenforceable by reason of their extending for
too
great of a period of time or over too great of a geographic area, or by reason
of their being too extensive in any other respect, such covenants shall be
interpreted to extend only for the longest period of time and over the greatest
geographic area, and to otherwise have the broadest application, as shall be
enforceable. The invalidity or unenforceability of any particular provision
of
this Agreement shall not affect the other provisions hereof, which shall
continue in full force and effect. Each of the Seller Parties acknowledges
and
agrees that the restrictions contained in this Article 12 are reasonable and
will not prevent such Seller Party from earning a living, that Buyer’s remedy at
law for any breach of the provisions of this Article 12 is and will be
insufficient and inadequate and that Buyer shall be entitled to equitable
relief, including by way of temporary restraining order, temporary injunction
and permanent injunction, without the need for posting a bond or for any other
undertaking (including without limitation, the need to prove the inadequacy
of
money damages), in addition to any remedies Buyer may have at law.
ARTICLE
13
TERMINATION
13. Termination.
13.1 Events
of Termination.
This
Agreement may, by notice given prior to or at the Closing, be
terminated:
(a)
(i) by
Buyer if a material breach of any provision of this Agreement has been committed
by Seller and/or either of Seller’s Owners (and not cured within five days of
written notice if capable of cure) and such breach has not been waived; or
(ii) by Seller if a material breach of any provision of this Agreement has
been
committed by Buyer (and not cured within five days of written notice if capable
of cure) and such breach has not been waived;
(b)
(i) by
Buyer if any of the conditions in Article 9 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 such condition on or before the
Closing Date; or (ii) by Seller, if any of the conditions in Article 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 such
condition on or before the Closing Date;
(c)
by
mutual
consent of Buyer and Seller; or
(d)
by
either
Buyer or Seller if the Closing has not occurred (other than through the failure
of any Party seeking to terminate this Agreement to comply fully with its
obligations under this Agreement) on or before that date which is 30 days
following the Effective Date, or such later date as the Parties may agree
upon.
13.2 Effect
of Termination.
Each
Party’s right of termination under Section 12.1 is in addition to any other
rights it may have under this Agreement or otherwise, and the exercise of a
right of termination will not be an election of remedies. If this Agreement
is
terminated pursuant to Section 12.1, all further obligations of the
Parties under this Agreement will terminate; provided,
however,
that if
this Agreement is terminated by a Party because of the breach of the Agreement
by the other Party or because one or more of the conditions to the terminating
Party’s obligations under this Agreement is not satisfied as a result of the
other Party’s failure to comply with its obligations under this Agreement, the
terminating Party’s right to pursue all legal remedies will survive such
termination unimpaired.
ARTICLE
14
MISCELLANEOUS
PROVISIONS
14. Miscellaneous
Provisions.
14.1 Further
Assurances.
Subject
to the terms and conditions herein, each of the Parties hereto agrees to use
its
reasonable efforts to take, or cause to be taken, all appropriate action, and
to
do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable law and regulations to consummate and make effective the
transactions contemplated by this Agreement.
14.2 Taxes.
Seller
shall pay all taxes arising out of the transfer of the Purchased Assets to
Buyer
pursuant to this Agreement, including its portion of all state and local
personal property tax related to the Purchased Assets, prorated through the
Closing Date.
14.3 Expenses.
Each of
the Parties shall pay all costs and expenses incurred or to be incurred by
it in
negotiating and preparing this Agreement and in closing and carrying out the
transactions contemplated by this Agreement.
14.4 Notices.
All
notices, requests, demands, and other communications hereunder shall be in
writing and shall be deemed to have been duly given as of the date of delivery
if delivered in person, three business days after being mailed (certified,
return receipt requested, postage prepaid), the next business day after deposit
with a reputable overnight courier or the date of delivery via facsimile
(if receipt of the facsimile is acknowledged by the receiving
party):
(a) If
to
Seller’s Owners or Seller, addressed to:
Xxxxxxxx
X. Xxxxxxx
0000
Xxxxxxx 000X
Xxxxxx
Xxx, Xxxxx Xxxxxxxx 00000
Fax:
000-000-0000
and
Xxxxxx
Xxxxxxxx
0000
Xxxxxxxxx Xxxxx
Xxxxxxxxx,
Xxxxxxxx 00000
Fax:
000-000-0000
(b) If
to
Buyer, addressed to:
Amish
Natural Sub, Inc.
0000
Xxxxx Xxxxx 00
Xxxxxxxxxxx,
Xxxx 00000
Attn:
Xxxxx X. Xxxxxxx, Xx.
Fax:
000-000-0000
with
a
copy to (which copy shall not constitute notice):
Xxxxx
Xxxx LLP
0000
Xxxx
Xxxxxx, Xxxxx 000
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxxxx X. Xxxx, Esq.
Fax:
000-000-0000
Either
Party hereto may from time to time, by written notice to the other Party,
designate a different address, which shall be substituted for the one specified
above for such Party.
14.5 Attorneys’
Fees.
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 its reasonable attorneys’ fees, expenses, and costs
incurred in connection with such controversy, claim, or dispute or any appeal
thereof.
14.6 Binding
Effect.
This
Agreement shall be binding upon and inure to the benefit of the Parties hereto
and their respective successors and assigns.
14.7 Parties
in Interest.
Nothing
in this Agreement, whether express or implied, is intended to confer any rights
or remedies under or by reason of this Agreement on any persons other than
the
Parties to it and their respective successors and permitted assigns, nor is
anything in this Agreement intended to relieve or discharge the obligation
or
liability of any third persons to any Party to this Agreement.
14.8 Counterparts.
This
Agreement may be executed in any number of counterparts, any of which may be
transmitted by facsimile or via portable document format by other electronic
means, each of which shall be deemed to be an original and all of which together
shall be deemed to be one and the same instrument. However, this Agreement
shall
be ineffective for any purposes whatsoever unless or until executed by all
Parties hereto.
14.9 Headings.
The
subject headings of the paragraphs and subparagraphs of this Agreement are
included for purposes of convenience only and shall not affect the construction
or interpretation of any of its provisions.
14.10 Entire
Agreement.
This
Agreement (together with the Closing Documents and the schedules and exhibits
to
this Agreement) sets forth all of the agreements and understandings between
the Parties hereto relating to the transactions contemplated hereby or the
subject matter hereof, and supersedes all prior agreements and understandings,
inducements or conditions, express or implied, oral or written.
14.11 Amendment;
Waivers.
This
Agreement may not be modified or amended, except in a writing signed by the
Parties hereto. No waiver of any provision of this Agreement shall be deemed,
or
shall constitute, a waiver of any other provision, whether or not similar,
nor
shall any waiver constitute a continuing waiver.
14.12 Severability.
In the
event that any of the provisions of this Agreement shall be held by a court
or
other tribunal of competent jurisdiction to be invalid or unenforceable, the
remaining portions of this Agreement shall remain in full force and effect
and
construed so as to best effectuate the intention of the Parties in executing
it.
14.13 Interpretation.
Words
used herein, regardless of the number and gender specifically used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine, or neuter, as the context requires. The
provisions of this Agreement, and the documents and instruments referred to
herein, have been examined, negotiated, drafted, and revised by the Parties
and
no implication shall be drawn nor made against any Party hereto by virtue of
the
drafting of this Agreement. The term “including” used herein shall mean
“including without limitation.”
14.14 Governing
Law.
This
Agreement shall be governed by, construed in accordance with and enforced under
the laws of the State of Ohio applicable
to agreements executed and to be performed solely within such
State.
14.15 Consent
and Jurisdiction; Service.
Each
party hereto irrevocably and unconditionally: (i) agrees that any suit, action
or other legal proceeding arising out of this Agreement may be brought in the
state and federal courts sitting in the City of New York, Borough of Manhattan;
(ii) consents to the exclusive jurisdiction of any such court in any such suit,
action or proceeding; and (iii) waives any objection which such party may have
to the laying of venue of any such suit, action or proceeding in any such court.
Each of the Parties consents to service of notice of any lawsuit brought under
the Transaction Documents by any of the methods set forth in Section 14.4
hereof.
[SIGNATURE
PAGE TO FOLLOW]
IN
WITNESS WHEREOF, the Parties hereto have executed or have caused a duly
authorized officer to execute this Agreement all as of the day and year first
above written.
|
SELLER:
|
BUYER:
|
|
|
AMISH
CO-OP, INC.,
a
Delaware corporation
|
AMISH
NATURAL SUB, INC.,
an
Ohio corporation
|
|
|
By:
/s/
XXXXXXXX X. XXXXXXX
Name:
Xxxxxxxx X. Xxxxxxx
Its:
President
|
By:
/s/
XXXXX X. XXXXXXX, XX.
Name:
Xxxxx X. Xxxxxxx, Xx.
Its:
President
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XXXXXXX:
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XXXXXXXX:
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/s/
XXXXXXXX X. XXXXXXX
XXXXXXXX
X. XXXXXXX
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/s/
XXXXXX XXXXXXXX
XXXXXX
XXXXXXXX
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