EXHIBIT 2.1
PURCHASE AGREEMENT
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PURCHASE AGREEMENT (the "Agreement") dated October 30, 1996 by and among
GERMAIN'S, INC., a Delaware corporation, ("Germain's") and X-X RESEARCH, INC., a
California corporation, ("X-X"), (sometimes collectively referred to herein as
the "Sellers"), GERMAIN'S SEEDS, INC., a wholly-owned Nevada subsidiary of
AGRIBIOTECH, INC., X-X RESEARCH, INC., a wholly-owned Nevada subsidiary of
AGRIBIOTECH, INC. and AGRIBIOTECH, INC., a Nevada corporation (collectively, the
"Buyer"), and XXXXXXXXX HOLDINGS, INC., a Delaware corporation ("Xxxxxxxxx"),
the parent corporation of the Sellers, and FLINTROCK, INC. ("Flintrock"), a
Delaware corporation and a wholly-owned subsidiary of Germain's.
W I T N E S S E T H:
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WHEREAS, Xxxxxxxxx is the direct or indirect owner of all of the
outstanding equity interests in Xxxxxxx'x, X-X and Flintrock which have
heretofore conducted their respective business operations as wholly-owned
corporate subsidiaries of Xxxxxxxxx; and
WHEREAS, the combined business operations of the Sellers (including
Flintrock's ownership interest in SeedBiotics L.L.C.), as described herein, is
known as the "Xxxxxxxxx AgriBusiness Group"; and
WHEREAS, Xxxxxxxxx is an indirect wholly-owned corporate subsidiary of
Xxxxxxxxx, PLC, of London, England; and
WHEREAS, Xxxxxxxxx heretofore acquired its equity interests in the Sellers
which comprise the Xxxxxxxxx AgriBusiness Group in 1987 and 1988; and
WHEREAS, Germain's is a regional seed company engaged in the development
and/or selection, production and/or acquisition, marketing and distribution of
hybrid corn, turf seed, alfalfa, clovers, silage inoculants, pasture grass and
cover crops in the United States and Mexico. Germain's is also a franchised
distributor of X-X's products in the same geographical area. Germain's, founded
in 1871 in California, focuses on the sale of alfalfa seed, hybrid seed corn,
turf seed and other seed and non-seed products to dealers, distributors and
large growers under the "Germain's" and "El Camino" brand names. In addition,
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Germain's maintains a hybrid seed corn breeding, testing and selection program
designed to provide its customers with improved silage and grain corn hybrids
specific to the western United States and Mexico. Germain's also manages a
program involved in advanced line selection and evaluation of certain cereal
varieties for use by its customers in the western United States; and
WHEREAS, X-X is a proprietary alfalfa seed breeding, production and
marketing company that was founded in California in 1958. X-X xxxxx or licenses
proprietary varieties of dormant, semi-dormant and non-dormant alfalfa, on a
worldwide basis, through franchised distributors and private label customers.
Germain's is X-X's largest franchised distributor. X-X and Germain's share
administrative headquarters in Fresno, California. Research and customer
service headquarters for X-X are located in Evansville, Wisconsin. X-X also
maintains four alfalfa breeding and testing stations in the United States with
facilities located in Wisconsin, California, Washington and Pennsylvania. X-X
is one of the world's leading developers of proprietary alfalfa varieties. W-
L's primary research objective is to develop high yielding, high quality,
multiple pest resistant alfalfa varieties that meet the needs of its customers
located throughout the world; and
WHEREAS, Flintrock is a wholly-owned subsidiary of Germain's and owns a 50%
equity interest in SeedBiotics L.L.C. ("SeedBiotics"), a seed coating joint
venture with Research Seeds, Inc. of St. Xxxxxx, Missouri (the "LLC Interest").
SeedBiotics, is headquartered in Caldwell, Idaho; and
WHEREAS, most of the Xxxxxxxxx AgriBusiness Group's seed products are
produced under contract with professional seed growers located in the western
and midwestern United States, with certain products, such as turf and forages,
purchased directly from seed suppliers and shipped to Fresno, California for
blending, if necessary, warehousing and distribution to customers; and
WHEREAS, Xxxxxxxxx has decided to divest itself of the business operations
of the Xxxxxxxxx AgriBusiness Group; and
WHEREAS, the Buyer and an authorized representative of the Xxxxxxxxx
AgriBusiness Group, with the authority of Xxxxxxxxx, entered into a Letter of
Intent dated May 21, 1996 (the "Letter of Intent") relating to sale by the
Sellers to Buyer of certain specified assets comprising the Xxxxxxxxx
AgriBusiness Group (sometimes referred to herein as the "Business"); and
WHEREAS, Xxxxxxxxx has agreed to join with the Sellers in their respective
obligations, warranties and representations under this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the terms,
conditions, representations, warranties and mutual covenants set forth in this
Agreement, the parties hereby agree as follows:
Section 1. Sale and Purchase of Assets.
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A. Assets. Upon the terms and subject to the conditions set forth
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in this Agreement, effective as of the commencement of business on September 1,
1996 (the "Effective Date"), on the Closing Date (as hereinafter defined)
Germain's and X-X shall sell, assign, transfer and deliver to the Buyer, and the
Buyer shall purchase, acquire, accept and take possession of all of the Sellers'
right, title and interest in and to the following assets of the Sellers, and
Flintrock shall sell, assign, transfer and deliver to the Buyer and the Buyer
shall purchase, acquire, accept and take possession of all of Flintrock's right,
title and interest in and to the LLC Interest and any receivables due from
SeedBiotics to Flintrock (all of which are sometimes collectively referred to as
the "Assets," and shall mean solely those assets described hereinbelow (and in
the Schedules attached to this Agreement), as shall be owned by the Sellers as
of the Effective Date, as adjusted for deletions and additions thereto occurring
in the ordinary course of business, or as otherwise contemplated by this
Agreement or the schedules attached hereto, during the period between the
Effective Date and the Closing Date):
(a) All of Sellers' inventory (the "Inventory") as shall be owned
by Germain's and X-X, except as set forth on Schedule 4(g) attached hereto,
including, but not limited to, the inventory shown on Schedule 1(a).
(b) Certain of Sellers' real property, as shall be owned by
Germain's and X-X, solely as more fully described in Schedule 1(b) attached
hereto and all right, title and interest in and to the same, including any lease
or purchase rights thereto.
(c) The buildings and improvements located on the real property
described in Schedule 1(b).
(d) All of Sellers' equipment and machinery not included in
Schedules 1(g-1) and 1(g-2), as shall be owned by Germain's and X-X,
respectively, including, without limitation, the assets described in Schedule
1(d) attached hereto.
(e) All of Sellers' office furniture, fixtures, facilities and
supplies, except as set forth in Schedule 4(g), as shall be owned by Germain's
and X-X, and described in Schedules 1(e-1) and 1(e-2) attached hereto.
(f) All of Sellers' automobiles, trucks, and all other vehicles,
as shall be owned by Germain's and X-X, respectively, including, without
limitation, the assets described in Schedules 1(f-1) and 1(f-2) attached hereto.
(g) All of Sellers' farm equipment, miscellaneous equipment and
hand tools, as shall be owned by Germain's and X-X, respectively, including,
without limitation, the assets described in Schedules 1(g-1) and 1(g-2)
attached hereto.
(h) Certain of Sellers' pre-paid and other assets, as shall be
owned by Germain's and X-X, as more fully described in Schedule 1(h) attached
hereto.
(i) All of Sellers' trade names and trademarks, and Plant Variety
Protection Certificates, and all related registrations and goodwill as shall be
owned by Germain's and X-X, respectively, including, without limitation, the
assets described in Schedules 1(i-1) and 1(i-2) attached hereto, but subject to
Sellers' rights under the Contract Regarding Service Agreement set forth as
Exhibit 1A(i) attached hereto (the "Service Agreement").
(j) [Intentionally left blank.]
(k) All of Sellers' customer lists, germplasm, breeders seed and
breeding records, as shall be owned by Germain's and X-X, respectively,
including, without limitation, the assets described in Schedules 1(k-1) and 1(k-
2) attached hereto.
(l) The goodwill of the Xxxxxxxxx AgriBusiness Group as a going
concern.
(m) All of Sellers' right, title and interest in and to each
lease, license, contract, warranty, agreement, purchase or sales order
(including releases of quantities pursuant thereto), indenture or commitment,
written or oral, to which any Seller is a party on the Closing Date or by which
any of the Assets are then bound, including, without limitation, the agreements
described in Schedule 7(e) hereto (the "Assumed Agreements"); and
(n) All of Sellers' accounts receivable as shall be owned by
Germain's and X-X, as more fully described in Schedule 1(n) attached hereto,
except pursuant to Excluded Assets (as defined below).
(o) The LLC Interest.
B. Fixed and Intangible Assets. The assets described in subsections
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(a) through (g), (m) and (n) above are sometimes referred to herein as the
"Fixed Assets." The assets described in subsections (h) through (l) are
sometimes referred to herein as the "Intangible Assets."
C. No Liens. The Assets shall be conveyed free and clear of all
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liabilities, obligations, liens, security interests and encumbrances of any
character whatsoever, excepting only those liabilities and obligations, if any,
which are expressly to be assumed by the Buyer hereunder, including, but not
limited to the Assumed Agreements and the accounts payable of Germain's and X-X,
as more fully described in Section 5(a). Except for the Assumed Liabilities (as
defined in Section 5(a)) the Buyer shall not assume, accept or undertake any and
all obligations, commitments, duties, debts or liabilities of any kind or nature
whatsoever, whether or not relating to the Business, whether known or unknown,
absolute, accrued, contingent or otherwise, or whether due or to become due,
arising out of events, transactions or facts occurring on or prior to the
Closing Date.
Section 2. Purchase Price and Adjustments.
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A. Purchase Price. In full consideration for the Sellers' sale,
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transfer, conveyance, assignment and delivery of their respective Assets to
Buyer, and in reliance upon the representations and warranties made herein by
each of the Sellers and Xxxxxxxxx and for the other consideration set forth
herein, the Buyer hereby agrees to pay on the Closing Date to the Sellers or
their respective designee(s) the purchase price determined as of the Effective
Date of $17,284,576 (the "Purchase Price") payable in the form of (a) a cash
payment of $16,198,858 (the "Cash Payment") and (b) the assumption of the
Assumed Liabilities described in Section 5 of this Agreement in an agreed upon
amount of
$1,085,718, as of the Effective Date.
B. Non-Competition Agreements. In addition to the Purchase Price, at
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the Closing, the Sellers and Xxxxxxxxx hereby agree to enter into three (3) year
non-competition agreements with the Buyer in the form annexed hereto as Exhibit
2(B).
C. Post-Closing Adjustments. Within thirty (30) days of the Closing
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Date, there shall be a post-Closing adjustment that will be mutually calculated
and agreed to by the parties hereto representing the net of (i) the cash
received by Sellers on Buyers' behalf subsequent to Effective Date and (ii) the
cash paid out by Sellers on Buyers' behalf subsequent to the Effective Date. On
the Closing Date, the Buyers will pay to the Sellers $769,192 representing such
activity from the Effective Date through September 20, 1996, in addition to the
Cash Payment in Section 2A. To the extent that the net cash paid out by Sellers
on Buyers' behalf and the cash received by the Sellers on Buyers' behalf since
the Effective Date (i) exceeds the $769,192, an additional payment for the
difference will be made by the Buyers to Sellers, or (ii) is less than the
$796,192, a payment of the difference will be made by Sellers to Buyers. In
either case, payment will be made within ten (10) days after agreement is
reached, with immediately available funds.
D. Allocation of Purchase Price. The Sellers, Berisford and Buyers
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agree that the Purchase Price shall be allocated as set forth in Exhibit 2(D),
annexed hereto.
E. Payment of Sales, Transfer and Use Taxes. The Sellers shall pay any
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and all state and/or county sales, transfer and/or use taxes resulting from the
sale of the Assets to Buyer pursuant to the terms of this Agreement. Buyers
represent and warrant that they are buying the Inventory for resale and that
they will furnish to Sellers in a timely manner appropriate certificates of
assurance to that effect, which will obviate all sales and use taxes on the sale
of Inventory by Sellers to Buyers hereunder.
F. Payment of Xxxx Xxxxx Xxxxxx Fees. The Buyer shall pay any
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filing fees incurred by the parties in complying with the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976.
Section 3. [Intentionally Left Blank.]
Section 4. Excluded Assets. In addition to the assets excluded from the
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definition of Assets in Section 1 hereof and notwithstanding anything to the
contrary contained in Section 1 hereof, Sellers are not selling and Buyer is not
purchasing any of the following, all of which shall be retained by Sellers
(collectively, the "Excluded Assets"):
(a) any cash of Sellers;
(b) any prepaid items of Sellers listed on Schedule 4(g) attached hereto;
(c) Sellers' minute books, tax returns and other corporate documents and
employment records; provided, however, that the Sellers' employment records
shall be delivered to Buyer with respect to individual employees upon the
delivery of executed consents of the affected employees;
(d) Sellers' rights under any insurance policies of the Sellers; provided
however, that any insurance proceeds received by Sellers relating to the Assets
or Assumed Liabilities shall be promptly remitted to Buyers;
(e) all books, records, correspondence and other information which relate
to the assets of Sellers to be retained by them pursuant to the terms of this
Agreement;
(f) any real property, buildings and improvements of Sellers that are not
described in Sections 1(b) and 1(c); and
(g) any of the assets listed in Schedule 4(g) attached hereto.
(h) Sellers' IBM AS400 computer system, including hardware and software
(the "Computer System"), is not being sold to Buyer and constitutes part of the
Excluded Assets, but Buyer will have custody of and may use the Computer System
for up to six months following the Closing Date. Buyer may either purchase the
Computer System from Sellers for a cash payment of $20,909 or will deliver the
Computer System to Sellers, at Sellers' cost and expense utilizing IBM or other
qualified computer personnel to oversee the packing and shipment, at a place
designated by Sellers at the end of such period. Until the Computer System has
been purchased by Buyer or delivered to Sellers as aforesaid, the risk of loss
and responsibility for ongoing monthly charges for software/hardware licenses,
repair and maintenance of the Computer System will be shared equally by (i) the
Buyer and (ii) the Sellers and Xxxxxxxxx.
(i) Attached hereto as part of Schedule 4(g) is a list of Non-Standard
Inventory of Sellers as of the Effective Date (the "Non-Standard Inventory").
One-half of each line item of Non-Standard Inventory owned by Sellers as of the
Closing Date is not being sold to Buyer and constitutes part of the Excluded
Assets (the "Retained Inventory"). Sellers will sell all of the Retained
Inventory as VNS (i.e., "Variety Not Stated") product as Sellers see fit, but
Buyers shall have a right of first refusal to purchase the Retained Inventory
which right of first refusal will terminate one (1) business day following
receipt of notice of a proposed sale of Retained Inventory by Sellers, which
notice shall include the quantity of Retained Inventory being sold and the price
and terms of delivery offered for such Retained Inventory. The right of first
refusal may be exercised by the Buyers by delivery of a written notice of
exercise on the same terms and conditions for said Retained Inventory prior to
the expiration of such one (1) business day period. In the event that Buyer
declines to exercise its right to purchase all of the Retained Inventory
described in the notice of proposed sale or fails to deliver a notice of its
intention to exercise its right of first refusal along with payment for such
Retained Inventory within one (1) business day of receipt of such notice of
proposed sale, Sellers shall be entitled to make the sale of Retained Inventory
as originally proposed.
Section 5. Assumption of Executory and Other Liabilities
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(a) At the Closing, Buyers jointly and severally shall assume and
thereafter pay when due and discharge, defend, indemnify and hold Sellers
harmless (solely in accordance with Section 9 of this Agreement) with respect to
(i) the executory liabilities and executory obligations of Sellers under each
Assumed Agreement commencing on the Effective Date and assigned by Buyer
pursuant to Section 1(m); and (ii) Sellers' accounts payable and the other
liabilities or obligations of Sellers described in Schedule 5(a) in the
aggregate amount as of the Effective date of $1,085,718 (collectively, the
"Assumed Liabilities").
(b) The Assets shall be conveyed to Buyers at the Closing free and clear of
all liabilities, obligations, liens, security interests and encumbrances of any
character whatsoever, excepting only the Assumed Liabilities, statutory liens
and X-X's security interest pursuant to the Service Agreement or any security or
pledge agreement contemplated thereby.
(c) Except for the Assumed Liabilities in this Section 5, the Buyer shall
not assume, accept or undertake any obligations, commitments, duties, debts or
liabilities of any kind or nature whatsoever, whether or not relating to the
Business, whether known or unknown, absolute, accrued, contingent or otherwise,
or whether due or to become due, arising out of events or transactions occurring
prior to the Closing Date (collectively, "the Obligations").
Section 6. Closing. The closing of the sale and purchase of the Assets
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and assumption of the Assumed Liabilities provided for in Sections 1 and 5,
respectively, of this Agreement shall take place at the offices of counsel to
the Buyer, Snow Xxxxxx Xxxxxx P.C., on the date of this Agreement, or at such
later time and place as the parties may agree. The day on which the closing
occurs is referred to in this Agreement as the "Closing Date."
Section 7. Representations and Warranties of the Sellers, Flintrock and
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Xxxxxxxxx. The Sellers, Flintrock and Xxxxxxxxx each warrant and represent to
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the Buyer as follows:
(a) Title. Except for the Assumed Liabilities and as set forth in Schedule
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7(a) of this Agreement, each of the Sellers owns, and on the Closing Date shall
have, good, valid and marketable title to the Assets and full right to transfer
title to the Assets free and clear of all liens, mortgages, charges,
liabilities, claims, security interests or encumbrances of every type
whatsoever. The sale, conveyance, transfer and delivery of the Assets by Sellers
and Flintrock to the Buyer pursuant to this Agreement will transfer full legal
and equitable right, title and interest in the Assets to the Buyer, free and
clear of all liens, mortgages, charges, claims, liabilities, security interests
and encumbrances of any nature whatsoever, except the Assumed Liabilities or as
created by Buyer.
(b) Capacity; Organization; Standing. Each of the Sellers, Flintrock and
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Xxxxxxxxx has full legal right, power and authority to enter into and consummate
the transactions contemplated by this Agreement and all other written agreements
to be entered into in connection with the transactions contemplated hereby (the
"Other Agreements"). This Agreement has been, and each of the Other Agreements
executed by the Sellers, Flintrock, Xxxxxxxxx and other parties hereto will, on
the Closing Date, be duly authorized, executed and delivered by each of them.
This Agreement constitutes, and each of the Other Agreements executed by the
Sellers, Flintrock, Xxxxxxxxx and other parties hereto will, constitute, the
legal, valid and binding obligations of each of them enforceable in accordance
with their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights generally or by general equitable principles (including any
limitations on the enforceability of any covenants not to compete). Each of the
Sellers, Flintrock and Xxxxxxxxx is duly organized, validly existing and in good
standing under the laws of the state of its incorporation. Each of the Sellers,
Flintrock and Xxxxxxxxx has full corporate power and authority to conduct its
respective business as now being conducted and, except as disclosed in Schedule
7(b) of this Agreement, is duly qualified to do business in each jurisdiction
where the nature of the property owned or leased, or the nature of the business
conducted by the Sellers, Flintrock and Xxxxxxxxx requires such qualification,
except where the failure to so qualify would not have a material adverse effect
on the Assets or the Business taken as a whole. Except as disclosed in Schedule
7(b) of this Agreement, the Sellers, Flintrock and Xxxxxxxxx have all necessary
licenses and authority to operate their respective businesses as now being
conducted, except where the failure to obtain such licenses and authority would
not have a material adverse effect on the Sellers or the Business taken as a
whole.
(c) Legal Proceedings. Except as set forth in Schedule 7(c) of this
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Agreement, neither the Sellers, Flintrock nor Xxxxxxxxx is a party to any
pending or, to the best knowledge of Sellers, Flintrock and Xxxxxxxxx,
threatened litigation, arbitration or administrative proceeding with respect to
or relating to the Assets or the Business that would or could reasonably be
expected to have a material adverse effect on the Assets, or the right or
ability of the Sellers, Flintrock or Xxxxxxxxx to carry on the Business as
currently conducted.
(d) Trade Names, Trademarks, Patents, etc. With respect to the Business,
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the Sellers and Flintrock own, use and have valid right, title and interest in
the trade names, trademarks, patents and Plant Variety Protection Certificates
set forth on Schedule 7(d) attached hereto. Except as disclosed in Schedule
7(d) to this Agreement or as provided in the Assumed Agreements, the Sellers
have not granted, and will not grant prior to the Closing Date, licenses or
other rights to use such trade names, trademarks, patents and Plant Variety
Protection Certificates. Except as disclosed in the Schedules annexed to this
Agreement, no other trade names, trademarks, patents or Plant Variety Protection
Certificates are owned or used by the Sellers in relation to the Business. To
the Sellers', Flintrock's and Xxxxxxxxx'x best knowledge and belief (i) the
operation of the Business does not infringe on the trade names, trademarks,
patents and Plant Variety Protection Certificates or any other intellectual
property rights of any third party, and (ii) no claim has been made that there
is any such infringement. To the Sellers', Flintrock's and Xxxxxxxxx'x best
knowledge and belief, no trade name, trademarks, Plant Variety Protection
Certificates or patents of any person infringes the trade names, trademarks,
patents or Plant Variety Protection Certificates of Sellers which relate to the
Business.
(e) Description of Material Contracts. Schedule 7(e) contains a complete
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and correct list as of the date hereof of all material agreements, contracts and
commitments, obligations and understandings (the "Material Agreements") which
may include those set forth in any other Schedule required to be delivered
hereunder, of any type, whether written or oral, which relate to the Business
and to which the Sellers are a party or by which they or any of their Assets are
bound, as of the date hereof. The Material Agreements constitute all of the
material contracts, leases and other agreements related to the operation of the
Business.
All of the Material Agreements constitute valid and legally binding
obligations of the Sellers enforceable in accordance with their terms, except as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights generally or by general
equitable principles, and are in full force and effect. Except as otherwise
specified in Schedule 7(e), attached hereto, the Material Agreements are validly
assignable to the Buyer without the consent of any party so that, after the
assignment thereof to the Buyer pursuant hereto, the Buyer will be entitled to
the full benefits thereof. There is no existing default, or event which, after
notice or lapse of time, or both, would constitute a material default or result
in a right to accelerate or loss of rights under any Material Agreement. The
Sellers have not received any notice of termination of any Material Agreement.
True and complete copies of all of the Material Agreements have been delivered
to the Buyer.
To the extent that the consent of any third party to the assignment of a
Material Agreement has not been obtained by the Closing Date and if Buyer shall
nevertheless elect to consummate the transactions contemplated by this
Agreement, this Agreement shall not constitute an agreement to assign the same
if an attempted assignment without that consent would constitute a breach
thereof; it being understood by the parties that the election of Buyer to
consummate the transactions contemplated by this Agreement without a particular
consent(s) shall not relieve the respective Seller of the obligation to
reasonably cooperate with Buyer in obtaining such consent(s).
(f) Default; Violations or Restrictions. Neither of the Sellers, Flintrock
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nor Xxxxxxxxx is in material default under, nor has any event occurred which,
with the lapse of time or action by a third party, could result in a default by
any Seller, Flintrock or Xxxxxxxxx, as the case may be, under any Material
Agreement. Except as set forth in Schedule 7(f), neither the execution and
delivery of this Agreement or the Other Agreements nor the consummation of the
transactions contemplated hereby or thereby will (i) constitute or result in a
breach of, or a default under, or give rise to any right to terminate, cancel or
modify, any Material Agreement, (ii) constitute or result in a violation by a
Seller of any statute, rule, regulation, ordinance, code, order, judgment, writ,
injunction, decree or award to which such Seller is subject, or (iii) result in
the creation or imposition of any lien, claim, restriction, charge or
encumbrance upon the Assets or the Business.
(g) Court Orders and Decrees. Except as set forth on Schedule 7(g), the
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officers of the Sellers, Flintrock and Xxxxxxxxx have not received written or
oral notice that there is outstanding, pending, or threatened any order, writ,
injunction or decree of any court, governmental agency or arbitration tribunal
against or adversely affecting the Assets or the Business.
(h) Consents, Approvals and Authorizations. The Sellers, Flintrock and
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Xxxxxxxxx have obtained all necessary consents, approvals or authorizations in
connection with the transactions contemplated hereby, which are required by law
or otherwise in order to make this Agreement binding upon the Sellers, Flintrock
and Xxxxxxxxx.
(i) Governmental Licenses. Schedule 7(i) attached hereto contains a
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correct and complete list of all governmental and administrative consents,
permits, appointments, approvals, licenses, certificates and franchises which
are required in connection with the Sellers', Flintrock's or Xxxxxxxxx'x
execution, delivery or performance of this Agreement, all of which have been
obtained and are in full force and effect. Neither the Sellers, Flintrock nor
Xxxxxxxxx has received any notice of any material violation with respect to any
such consents, permits, licenses or other regulatory orders and which remain
unabated.
(j) Hazardous Material and Nuisance. Except as disclosed on Schedule 7(j)
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attached hereto, there are no claims existing or, to the best knowledge of the
Sellers, Flintrock and Xxxxxxxxx, threatened against the Sellers relating to
either the Business or the Assets relating to Hazardous Materials, and no
aboveground or underground storage tanks have existed at any of the facilities
of the Sellers which comprise the Business during their term of ownership by
Xxxxxxxxx, for, with respect to, or as direct or indirect result of, the
presence on or under, or the escape, seepage, leakage, spillage, discharge, or
emission discharging, from the real property of the Sellers of any "Hazardous
Material," including, without limitation, any losses, liabilities, damages,
injuries, costs, expenses, reasonable fees of counsel or claims asserted or
arising under the Comprehensive Environmental Response, Compensation and
Liabilities Act ("CERCLA"), any so-called "Super Fund" or "Super Lien" law or
any other applicable federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree now in effect, regulating, relating to or
imposing liability or standards of conduct concerning any Hazardous Material.
Except as set forth on Schedule 7(j), the Sellers are in material compliance
with all Laws and Environmental Laws now applicable to the Assets and the
operations of the Business as presently conducted.
(k) Employee Benefit Plans. Except as disclosed on Schedule 7(k) attached
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hereto, there are no "Employee Benefit Plans" (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")), or any
other profit sharing, deferred compensation, bonus, stock option, stock
purchase, pension or other compensation plan (excluding salaries, wages and
other customary employee benefits such as vacation and sick leave), or any other
plan or arrangement to benefit employees maintained or contributed to by the
Sellers or any person, firm or corporation (an "Affiliate") under "common
control" (within the meaning of Section 401(b) of ERISA) with the Sellers and in
which any of the employees of the Sellers or any Affiliate participates or is
eligible to participate. Except as disclosed in Schedule 7(k), no funding
deficiency exists or has existed with respect to any Employee Benefit Plan
covering any present or former employee of the Sellers or any Affiliate which
may cause or result in a lien upon any of the Assets.
(l) Absence of Certain Business Practices. Neither the Sellers nor
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Xxxxxxxxx, nor to their best knowledge and belief has any of their respective
officers, employees or agents or other persons acting on their respective
behalf, directly or indirectly, within the past three (3) years given or agreed
to give to, or received any gift or similar benefit from, any customer,
supplier, governmental employee or other person who is or may be in a position
to help or hinder the Business (or assist the Sellers in connection with any
actual or proposed transaction) which might reasonably be expected to subject
the Sellers to any damage or penalty in any civil, criminal or governmental
litigation or proceeding.
(m) Brokers. The Sellers have not entered into and will not enter into any
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agreement, arrangement or understanding with any person or firm including, but
not limited to, AgriCapital Corporation, which will result in an obligation of
the Buyer to pay any finder's fee, brokerage commission, or similar payment in
connection with the transactions contemplated by this Agreement. Any brokerage
commission owing to the Kent Group or AgriCapital Corporation in connection with
the transactions contemplated by this Agreement, if any, shall be paid by the
respective party in accordance with that party's agreement with
the Kent Group or AgriCapital Corporation.
(n) Financial Statements. Each of the Sellers and Flintrock has delivered
--------------------
to the Buyer during the process of the Buyer's due diligence investigation
copies of all financial statements requested by the Buyer (hereinafter
collectively called the "Financial Statements") and which are attached hereto as
Exhibit 7(n). The unaudited Financial Statements were prepared by or on behalf
of corporate executives of the Sellers in the ordinary course of business for
periods through and including the month ended August 31, 1996 and are complete
and correct in all material respects and, except as disclosed on Schedule 7(n),
fairly present the financial condition of the Business as at their respective
dates and the results of the Business' operations for the periods covered
thereby, and are true and correct statements of the financial condition of the
Business at such dates.
(o) Absence of Undisclosed Liabilities and Conditions. Except as set forth
-------------------------------------------------
on Schedule 7(o) to this Agreement or as reflected or reserved against in the
Financial Statements, the Sellers have no outstanding claims, liabilities,
indebtedness, absolute, accrued, contingent or otherwise (including, without
limitation, any foreign or domestic tax liabilities or deferred tax liabilities)
other than (i) liabilities incurred subsequent to the Effective Date in the
ordinary course of the Business, (ii) liabilities which do not, individually or
in the aggregate, have a material adverse effect on the financial condition or
Sellers' operation of the Business, taken as a whole, or (iii) liabilities, if
any, arising under this Agreement.
(p) Compliance With Laws. Except as disclosed on Schedule 7(p), the
--------------------
operations and activities of the Business concerning the Assets have previously
and continue to comply in all material respects with all applicable and material
Federal, state and local laws, statutes, codes, ordinances, rules, regulations,
permits, judgments, orders, writs, awards, decrees or injunctions (collectively,
the "Laws"), as in effect on or before the date of this Agreement, including,
without limitation, all Laws relating to seed labeling and all rules and
regulations of the Occupational Safety and Health Administration. Neither the
ownership nor use of the Assets nor the conduct of the Business as presently
conducted violates, or with or without the giving of notice or the passage of
time, or both, will violate, conflict with or result in a default, right to
accelerate or loss of rights under, any Laws, any terms or provisions of the
Sellers' Certificates of Incorporation or By-laws as presently in effect, or any
Material Agreements. Neither the Sellers, Flintrock nor Xxxxxxxxx have received
any notices of communication from any third party asserting a failure to comply
with any Laws, nor have the Sellers, Flintrock or Xxxxxxxxx received any notice
that any authority or third party intends to seek enforcement against the
Sellers, Flintrock or Xxxxxxxxx to compel compliance with any such Laws.
(q) Taxes. As of the Effective Date and Closing Date all taxes, including,
-----
without limitation, income, property, sales, use, franchise, added value,
employees' income withholding and social security taxes, imposed by any
governmental entity whatsoever, which are due or payable by the Sellers in
connection with the Business, and all interest and penalties thereon, have been
paid in full, all tax returns required to be filed in connection therewith have
been timely filed and all deposits required by law to be made by the Sellers
with respect to employee's withholding taxes have been duly made. The Sellers
have not been delinquent in the payment of any tax, assessment or governmental
charge or deposit and, to their best knowledge, has no tax deficiency or claim
outstanding, proposed or assessed against them. Except for amounts accrued, but
not payable as of the Effective Date, (i) neither the Sellers, Flintrock nor
Xxxxxxxxx are liable for the payment of any taxes relating to the Assets or the
operation of the Business, and (ii) the Buyer shall have no liability for any
taxes related to the ownership or operation of the Assets or the Business prior
to the Effective Date. Neither the Sellers, Flintrock nor Xxxxxxxxx know of any
tax deficiency or claim outstanding, proposed, or assessed against it with
respect to any taxes, including, without limitation, income, property, sales,
use, franchise, valued-added, employees' income withholding, and social security
taxes imposed by the United States or by an foreign country or by any state,
municipality, subdivision, or instrumentality of the United States or of any
foreign country, or by any other taxing authority that could have a material
effect on the Buyer, the Assets or the Business, or result in the imposition of
a tax lien upon any of the Assets.
(r) Absence of Changes or Events. Except as set forth in Schedule 7(r)
----------------------------
attached hereto, since the Effective Date there has been no material adverse
change in the Business or the Assets and other than in the ordinary course of
the Business, the Sellers have not:
[i] Incurred any obligation or liability, other than current
liabilities for trade or business obligations consistent with its prior
practice;
[ii] Mortgaged, pledged or subjected to lien, charge, security
interest or any other encumbrance or restriction on, any of the Assets;
[iii] Except for the sale of Inventory, sold, transferred,
leased to others or otherwise disposed of any of the Assets;
[iv] Received any notice of termination of any Material
Agreement or suffered any damage, destruction or loss which has had or,
with the passage of time, could reasonably be expected to have a material
adverse effect on either the Assets or the Business;
[v] Made any change in its pricing, advertising or personnel
practices inconsistent with its prior practice;
[vi] Suffered any change, event or condition which, has had or
may reasonably be expected to have a material adverse effect on the Assets,
the Business or the operations or prospects thereof;
[vii] Entered into any transaction, contract or commitment which
had a material adverse effect on the Assets or the Business; or
[viii] Instituted, settled or agreed to settle any litigation,
action or proceeding before any court or governmental body relating to the
Sellers, the Assets or the Business.
(s) Inventories. All Inventory consists of items purchased in the ordinary
-----------
course of the Business. All Inventory has been fully paid for or accrued by
each of the Sellers.
(t) Labor Relations. Except as set forth on Schedule 7(t) attached hereto,
---------------
the Sellers in connection with the Business are not (i) parties to any
collective bargaining agreement relating to any of the employees and have not
recognized and are not required to recognize and have not received a demand for
recognition by any collective bargaining representative, (ii) parties to any
contract with and have had no liability to, any of their employees, agents,
consultants, officers, sales representatives, distributors or dealers that are
not cancelable by the Sellers without penalty on not more than thirty (30) days'
notice, (iii) subject to any strike or work stoppage in effect or threatened
against the Business nor has any strike or work stoppage been organized by any
order, writ, injunction or decree of any court or federal, state, municipal or
other governmental agency or instrumentality.
(u) Customer Lists. Buyer has been provided with a complete and accurate
--------------
list of all active customers of the Sellers as of the date hereof.
(v) Ownership of LLC Interest. Flintrock is the owner, beneficial and of
-------------------------
record, of the LLC Interest, which constitutes fifty percent (50%) of the total
membership interests of SeedBiotics. The LLC Interest has not been pledged,
mortgaged or otherwise encumbered in any way and there is no lien, mortgage,
charge, claim, liability, security interest or encumbrance of any nature against
the LLC Interest. There are no options, warrants, rights of subscription or
conversion, calls, commitments, agreements, arrangements, understandings, plans,
contracts, proxies, voting trusts, voting agreements or instruments of any kind
or character, oral or written, to which Flintrock is a party, or by which
Flintrock is bound, relating to the issuance, voting or sale of the LLC Interest
or any authorized but unissued membership interests of SeedBiotics or of any
securities representing the right to purchase or otherwise receive any such
membership interests. Flintrock has, and at Closing shall have, good and
marketable title to the LLC Interest and full right to transfer title to the LLC
Interest free and clear of all liens, mortgages, charges, liabilities, claims,
security interests or encumbrances of every type whatsoever. The sale,
conveyance, transfer and delivery of the LLC Interest by Flintrock to the Buyer
pursuant to this Agreement will transfer full legal and equitable right, title
and interest in the LLC Interest to the Buyer, free and clear of all liens,
mortgages, charges, claims, liabilities, security interests and encumbrances of
any nature whatsoever other than those created by Buyer.
(w) FIRPTA. With respect to the parcels of real estate set forth on
------
Schedule 1(b) that are to be conveyed to Buyer, the Seller of each parcel of
real estate is not a "foreign person", as that term is defined for purposes of
the Foreign Investment in Real Property Tax Act, Internal Revenue Code Section
1445, as amended, and the regulations promulgated thereunder (collectively
"FIRPTA").
(x) Schedules. For purposes of this Agreement, any disclosure contained in
---------
any Schedule to this Agreement shall be deemed to be included in each of the
other Schedules to this Agreement.
(y) Accuracy. Subject to the qualifications and exceptions set forth in
--------
this Agreement and the schedules attached hereto, no representation, warranty,
covenant or statement by either the Sellers or Xxxxxxxxx in this Agreement or
the Schedules attached hereto, contains any untrue statement of a material fact,
or omits to state a material fact required to be stated herein or therein or
necessary to make the statements contained herein or therein in light of the
circumstances under which they were made, not false or materially misleading.
(z) Interpretation. For purposes of this Agreement, when a representation
--------------
or warranty is made to the "best knowledge" (or any similar qualification) of
Sellers, Flintrock or Xxxxxxxxx such reference shall refer to actual knowledge
or matters that should have reasonably been known by the management of the
Sellers, Flintrock or Xxxxxxxxx.
Section 8. Representations and Warranties of the Buyer. The Buyers
-------------------------------------------
jointly and severally warrant and represent to the Sellers, Flintrock and
Xxxxxxxxx as follows:
(a) Capacity. The Buyer has full legal right, power and authority to enter
--------
into and consummate the transactions contemplated by this Agreement and the
other documents required to be executed by the Buyer in connection herewith and
to consummate the transactions contemplated hereby and thereby. The execution
and delivery of this Agreement does not, and the consummation of the
transactions contemplated by this Agreement will not, constitute a breach of any
term or provision of the certificate of incorporation or by-laws of the Buyer or
constitute a default under any material law, rule, regulation, order or ruling,
indenture, instrument, mortgage, deed of trust, or other agreement or instrument
to which the Buyer is a party or by which they are bound.
(b) Organization. Each Buyer is a corporation duly organized, validly
------------
existing and in good standing under the laws of the State of Nevada, and has the
full corporate power and authority to carry on its business as now conducted and
to own, lease or operate the properties and assets now used by it in connection
therewith. The Buyer is duly qualified and in good standing to do business in
each jurisdiction in which the nature of its business or the ownership or
leasing of its properties make such qualification necessary.
(c) Consents and Approvals. No governmental license, permit or
----------------------
authorization, and no registration or filing with any court, governmental
authority or regulatory agency, is required in connection with the Buyer's
execution, delivery or performance of this Agreement. The Buyer shall execute,
deliver and perform its obligations under this Agreement and no consent or other
approval or any other party is required to be obtained by the Buyer in
connection with the transactions contemplated hereby.
(d) Legal Proceedings. The Buyer is not a party to or affected by any
-----------------
pending litigation, arbitration or any governmental proceeding or, to the best
knowledge of the Buyer, threatened that would in any manner affect its entering
into this Agreement or performing the transactions contemplated hereby or that
might result in any material adverse change in the financial condition, business
or properties of the Buyer.
(e) Misrepresentations and Omissions. No representation, warranty, covenant
--------------------------------
or statement by the Buyer in this Agreement, any Exhibit attached hereto, the
Schedules attached hereto and the certificates or other documents furnished or
to be furnished to the Sellers pursuant hereto (including the Schedules, if any,
provided for in this Section 8 and Exhibits thereto), contains or will contain
any untrue statement of a material fact, or omits or will omit to state a
material fact required to be stated herein or therein or necessary to make the
statements contained herein or therein in light of the circumstances under which
they were made, not false or materially misleading.
(f) Binding Obligation. This Agreement, and any other agreement required
------------------
to be delivered by the Buyer pursuant to this Agreement, has been duly executed
and delivered by the Buyer and constitutes the legal, valid and binding
obligation of the Buyer, enforceable against the Buyer in accordance with its
terms, except to the extent that such enforceability may be limited by general
principles of equity or bankruptcy, insolvency and other similar laws affecting
the enforcement of creditors' rights generally. All action of the Board of
Directors of the Buyer and all other corporate action necessary to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby has been duly and validly taken.
(g) Financial Statements. Buyer has delivered to Xxxxxxxxx a copy of its
--------------------
most recent Annual Report on Form 10-KSB filed by ABT with the Securities and
Exchange Commission (the "Buyer Financial Statements"). Except as disclosed in
the Buyer Financial Statements, the Buyer has no material debts, liabilities or
obligations of any nature whatsoever relating to or arising out of any act,
transaction, circumstance or state of facts which occurred or existed on or
before the date of the Buyer Financial Statements, whether or not then known,
due or payable. To the best knowledge and belief of the Buyer, there has been
no material adverse change in financial condition of the Buyer since the date of
the Buyer Financial Statements. The Buyer's Financial Statements are complete
and correct in all material respects and accurately and fairly present the
financial condition of the Buyer as of the dates thereof and the results of
Buyer's operations for the periods covered thereby.
(h) Brokers; Finders. No agent, broker, investment banker, person or firm
----------------
acting on behalf of the Buyer or any firm or corporation affiliated with the
Buyer or under its authority is or will be entitled to any brokers' or finders'
fee or any other commission or similar fee directly or indirectly from the
Sellers or any entity affiliated with the Sellers in connection with any of the
transactions contemplated hereby.
(i) No Insolvency. The payment of the Purchase Price to the Sellers as
-------------
contemplated by this Agreement will not cause or result in Buyer becoming
insolvent or subject Sellers to the claims of any existing or future creditors
of Buyer.
(j) Licensed Reseller Certificates. Each Buyer will use its best efforts
------------------------------
to become duly licensed and authorized as a reseller in each State in which such
Buyer is to receive Inventory pursuant to the terms of this Agreement.
Section 9. Limitations on Representations and Warranties;
----------------------------------------------
Indemnification.
---------------
(a) Indemnification By Sellers, Flintrock and Xxxxxxxxx. Sellers, Flintrock
---------------------------------------------------
and Xxxxxxxxx shall indemnify, save and hold harmless Buyer, its officers,
directors, employees, affiliates, accountants and attorneys, from and against
any and all costs, losses, liabilities, damages, lawsuits, deficiencies, claims
and expenses, including, without limitation, interest, penalties, reasonable
attorneys' fees and all amounts paid in investigation, defense or settlement of
any of the foregoing (herein, "Damages"), incurred in connection with or arising
out of or resulting from (i) subject to the time limitations set forth in
Section 9(d) below, all undisclosed liabilities becoming known after the Closing
Date relating to or which arose out of the operation of the Business by the
Sellers prior to Closing Date (except for the Assumed Liabilities), (ii) any
material breach of any covenant or agreement or the failure of Sellers,
Flintrock or Xxxxxxxxx to perform any of their respective obligations under this
Agreement, the Service Agreement, and the Security Agreement and Pledge
Agreement entered into pursuant to the Service Agreement; (iii) subject to the
time limitations set forth in Section 9(d) below, the material inaccuracy of any
representation or warranty made by Sellers, Flintrock or Xxxxxxxxx in or
pursuant to this Agreement; (iv) the failure of Sellers to comply with the
provisions of any applicable bulk transfer laws in connection with the sale of
the Assets to the Buyer; (v) any potential environmental claims set forth on
Schedule 7(j), (vi) the failure of Sellers to comply with the provisions of
Section 2(e) concerning the payment of sales, transfer and use taxes and (vii)
the execution of the Service Agreement. The term "Damages" as used in this
Section 9 does not include consequential damages to the party requesting
indemnification.
(b) Indemnification By Buyer. Buyer shall jointly and severally indemnify,
------------------------
defend and save and hold harmless each of the Sellers, Flintrock and Xxxxxxxxx
and their respective employees, affiliates, accountants, and attorneys from and
against any and all Damages incurred in connection with or arising out of or
resulting from, (i) any material breach of any covenant or agreement or the
failure of Buyer to perform any of its obligations under this Agreement, the
Service Agreement, and the Security Agreement and Pledge Agreement entered into
pursuant to the Service Agreement; (ii) subject to the time limitations set
forth in Section 9(d) below, the material inaccuracy of any representation or
warranty made by Buyer in or pursuant to this Agreement; (iii) any Damages
relating to or arising out of the Assumed Liabilities; and (iv) any and all
liabilities arising out of the operations of the Business by Buyer or its
successors and assigns after the Closing Date.
(c) Defense of Claims. If a claim for Damages is to be made by a party
-----------------
entitled to indemnification hereunder against the indemnifying party, the party
entitled to such indemnification shall give written notice (the "Claim Notice")
to the indemnifying party as soon as practicable after the party entitled to
indemnification becomes aware of any fact, condition or event which may give
rise to Damages for which indemnification may be sought under this Section 9.
The Claim Notice shall set forth, with reasonable specificity, the facts,
conditions, or events which may give rise to Damages for which indemnification
may be sought under this Section 9. If any lawsuit or enforcement action is
filed against any party entitled to the benefit of indemnity hereunder, written
notice thereof shall be given to the indemnifying party as promptly as
practicable (and in any event within fifteen (15) days after the service of the
citation or summons); provided, that the failure of any indemnified party to
give timely notice shall not affect rights to indemnification hereunder except
to the extent that the indemnifying party demonstrates actual damage caused by
such failure. After such notice, if the indemnifying party shall acknowledge in
writing to the indemnified party that the indemnifying party shall be obligated
under the terms of its indemnity hereunder in connection with such lawsuit or
action, the indemnifying party shall be entitled, if it so elects, to take
control of the defense and investigation of such lawsuit or action and to employ
and engage attorneys of its own choice to handle and defend the same, at the
indemnifying party's cost, risk and expense provided that the indemnifying party
and its counsel shall proceed with diligence and in good faith with respect
thereto. The indemnified party shall cooperate in all reasonable aspects with
the indemnifying party and such attorneys in the investigation, trial and
defense of such lawsuit or action and any appeal arising therefrom; provided,
however, that the indemnified party may, at its own cost, participate in the
investigation, trial and defense of such
lawsuit or action and any appeal arising therefrom.
(d) Limitations on Indemnifications. All representations and warranties
-------------------------------
made by the parties herein or in any instrument or document furnished in
connection herewith shall survive the Closing and any investigation at any time
made by or on behalf of the parties hereto and shall expire on the second
anniversary of the Closing Date, and shall no longer be of any force or effect,
and no claim may be made thereafter or with respect thereto, forever, except as
to any matter as to which a claim is submitted in writing to the indemnifying
party prior to such second anniversary and identified as a claim for
indemnification pursuant to this Agreement, and except that claims for indemnity
under clauses (iv) and (v) of Section 9(a) above shall survive for the
respective periods provided for in the applicable statutes of limitations.
(e) Further Limitations on Indemnification. Notwithstanding anything to the
--------------------------------------
contrary contained in this Agreement, no amounts of indemnity shall be payable:
(i) in the case of a claim by Buyer under Section 9(a)(iii), (A)
unless, until and then only to the extent that Buyer has suffered, incurred,
sustained or become subject to losses referred to in Section 9 in excess of
$100,000 in the aggregate; and (B) in an amount in excess of the aggregate
Purchase Price paid by Buyer for the Assets and Stock; or
(ii) in the case of a claim by Sellers under Section 9(b)(ii), unless
and until and then only to the extent that Sellers have suffered, incurred,
sustained or become subject to losses referred to in Section 9(b)(ii) in excess
of $100,000 in the aggregate; or
(iii) with respect to any claim for indemnification under Section 9(a)
or Section 9(b) (other than claims arising out of any litigation involving
Sellers, Flintrock, Xxxxxxxxx or the Assets which is disclosed in the Schedules
to this Agreement), if the indemnified party has not given the indemnifying
party a Claim Notice as promptly as practicable (and in any event within the
time period set forth in Section 9(d), except to the extent the indemnifying
party is not prejudiced by any delay in the delivery of such notice; or
(iv) with respect to any loss, to the extent that the indemnified
party had a reasonable opportunity, but failed, in good faith to mitigate the
loss, including but not limited to, the failure to use commercially reasonable
efforts to recover under a policy of insurance or under a contractual right of
set off or indemnity; provided that no indemnified party shall be required to
--------
commence litigation in order to satisfy the provisions of this clause (iv).
(f) Method of Calculating Losses.
----------------------------
(i) The final liability of an indemnifying party computed otherwise
in accordance with this Section 9 shall be limited to the actual after-tax
consequence to the indemnified party of any loss suffered or incurred by the
indemnified party. The full amount of a loss without giving effect to the after-
tax consequences shall be paid in accordance with this Section 9. The
indemnified party shall remit to the indemnifying party the actual tax savings
(the "Tax Benefit Amount") attributable to the tax deduction, if any, arising by
reason of the indemnified party's payment of such loss after giving effect to
the receipt of such indemnification payment by the indemnified person (the "Loss
Deduction") at such time as set forth in clause (ii) below. For purposes of this
Section 9, the Tax Benefit Amount shall be equal to, for each year that the Loss
Deduction (or portion thereof) is used (or deemed to be used) to reduce taxable
income, the amount of the Loss Deduction multiplied by the combined federal,
state and local income tax rate at which the relevant tax liabilities of the
indemnified party are determined for such party for the year the Loss Deduction
(or portion thereof) to the extent actually used to reduce the indemnified
party's taxable income.
(ii) The Tax Benefit Amount shall be so remitted when the Loss
Deduction is utilized. For purposes of this Section 9, any Loss Deduction shall
be deemed utilized in the taxable period or periods in which the indemnified
party realizes an actual reduction in taxes or receives a refund of taxes (after
taking into account net operating losses, tax credits, capital losses,
carryovers of such losses and credits and other tax attributes and benefits).
(iii) Without in any way limiting the foregoing, the indemnified party
shall remit to the indemnifying party all proceeds received by the indemnified
party arising from recovery under a policy of insurance or under a contractual
right of set-off or indemnity (collectively, "Proceeds") based upon a loss for
which it has already been compensated by the indemnifying party, provided that
--------
the net amount remitted to the indemnifying party shall not exceed the amount
paid to the indemnified party by the indemnifying party. The indemnified party
shall make the remittance described in this clause (iii) no later than thirty
days following receipt of the Proceeds.
(g) Exclusive Remedies. After the Closing Date, the indemnities set forth
------------------
in this Section 9 shall be the exclusive remedy for monetary damages of the
parties hereto for any misrepresentation, breach of warranty or nonfulfillment
or failure to be performed of any covenant or agreement contained in this
Agreement.
Section 10. Covenants of the Sellers, Flintrock and Xxxxxxxxx. The
-------------------------------------------------
Sellers, Flintrock and Xxxxxxxxx hereby covenant and agree:
(a) Further Assurances. That from time to time at the reasonable request
------------------
of the Buyer, and without further consideration, to execute and deliver such
additional instruments and to take such other action as the Buyer may reasonably
require to convey, assign, transfer and deliver the Assets and the Business and
otherwise to carry out the terms of this Agreement.
(b) Noninterference. Not to take or omit to take any action that (i) if
---------------
taken or omitted on or before the date of this Agreement, would make untrue any
of their representations and warranties contained in Section 7 of this
Agreement, or (ii) would interfere with the Sellers', Flintrock's or Xxxxxxxxx'x
ability to perform or would prevent performance of any of its obligations under
this Agreement or any of the other agreements or instruments provided for
herein.
(c) Closing Documents. To execute and deliver all instruments and
-----------------
documents required under Section 12 as a condition precedent to the consummation
of this Agreement and to take all action required to carry out the terms of this
Agreement and the transactions set forth herein.
(d) Employment. All employees of the Sellers employed in connection with
----------
the Business will be terminated effective as of the Closing Date. Subject to
the provisions of Section 2 C. of this Agreement, the Sellers shall bear full
responsibility for paying all terminated employees all compensation earned by
them through the Closing Date. This includes, but shall not be limited to, any
salary, vacation and severance pay, commissions, and bonuses of any kind payable
through the Closing Date (collectively "Compensation"). All Compensation shall
be paid by the Sellers, on or before the Closing Date, as set forth on Schedule
10(d) annexed hereto. No Compensation will be due or owing by the Buyer to any
employee hired by the Buyer.
(e) Right to Collect Accounts. The Sellers and Xxxxxxxxx hereby confirm
-------------------------
the Buyer's sole right and authority to collect for Buyer's own account all
accounts receivable included in the Assets. Furthermore, at Buyer's request, on
or after the Closing Date, Sellers will (i) endorse the name of the Sellers
(without recourse to the Sellers) on any checks or other instruments received on
account of such accounts receivable, (ii) give notice of the transfer to the
Buyer of the accounts receivable to the various customers and others owing
monies in respect of any accounts receivable included in the Assets, (iii)
advise the various customers and others owing monies in respect of any accounts
receivable included in the Assets to make payments directly to the Buyer, and
(iv) transfer or deliver to the Buyer from time to time, all cash or other
property due the Buyer that the Sellers may receive in respect of any accounts
receivable transferred to the Buyer pursuant to the terms of this Agreement.
Section 11. Covenants of the Buyer. The Buyer hereby covenants and
----------------------
warrants as follows:
(a) Further Assurances. That from time to time at the reasonable request
------------------
of the Sellers, and without further consideration, to execute and deliver such
additional instruments and to take such other action as the Sellers may
reasonably require to convey, assign, transfer and deliver the Assets and the
Business and otherwise to carry out the terms of this Agreement.
(b) Noninterference. The Buyer shall not take or omit to take any action
---------------
that (i) if taken or omitted on or before the date of this Agreement, would make
untrue any of its representations and warranties contained in Section 8 of this
Agreement, or (ii) would interfere with the Buyer's ability to perform or would
prevent performance of any of its obligations under this Agreement or any of the
other agreements or instruments provided for herein.
(c) Closing Documents. The Buyer shall execute and deliver all instruments
-----------------
and documents required under Section 13 as a condition precedent to the Closing
hereof and take all action required to carry out the terms of this Agreement and
to consummate the transactions contemplated hereby.
(d) Access. The Buyer agrees to preserve and provide the Sellers,
------
Xxxxxxxxx and their representatives with full and free access to all properties,
books, records and contracts relating to the Business in connection with this
transaction during normal business hours for all reasonable purposes for a
period of two (2) years following the Closing and five years in order to comply
with applicable tax or other laws or in connection with any litigation relating
to the Business or the Assets.
(e) Employees. The Buyer agrees to use its best efforts to offer
---------
employment opportunities to all employees terminated by the Sellers as deemed
appropriate by Buyer.
Section 12. Conditions Precedent to the Buyer's Obligations. The
-----------------------------------------------
obligations of the Buyer under this Agreement are subject to the following
conditions (any of which may be waived at Closing in whole or in part by the
Buyer, as applicable):
(a) Each of the Sellers, Flintrock and Xxxxxxxxx shall have obtained and
delivered to the Buyer any required consents or approvals of any other third
parties whose consent is required to consummate the transactions contemplated
hereunder.
(b) The Buyer shall have received a written opinion of legal counsel for
the Sellers, Flintrock and Xxxxxxxxx dated as of the Closing Date.
(c) The Buyer shall have received a xxxx of sale or bills of sale and
documentation and such other good and sufficient instruments of transfer and
conveyance as, in the reasonable opinion of counsel to the Buyer, shall be
effective to vest in the Buyer good and valid title to the Assets, as herein
provided.
(d) The Buyer shall have received Certified resolutions of the Sellers' and
Xxxxxxxxx'x Boards of Directors authorizing the transactions contemplated by
this Agreement.
(e) The Buyer shall have received at the Closing satisfactory title
opinions, or title insurance with regard to the real property interests
transferred to the Buyer.
(f) The Buyer shall have received from the Sellers, Flintrock and Xxxxxxxxx
pursuant to Section 2(d) above, agreements in the form of Exhibit 2(B), attached
hereto, whereby the Sellers, Flintrock and Xxxxxxxxx for a period of three (3)
years from the Closing Date, not to compete with the Buyer in selling any
products to current customers of the Business as existing on the Closing Date.
(g) The Buyer shall have received good and sufficient instruments of
conveyance, assignment and transfer, in form and substance satisfactory to the
Buyer, as shall be effective to vest in the Buyer good and marketable title to
the Assets to put the Buyer in actual possession and operating control thereof
and to assist the Buyer in exercising all rights with respect thereto.
(h) The Buyer shall have received all documents required to be delivered to
the Buyer under any other provision of this Agreement, including the Assignments
attached as Exhibit 7(d).
(i) The Buyer shall have received a Certificate of Incumbency identifying
the officers and directors of each of the Sellers immediately before the Closing
Date.
(j) The Buyer shall have received, within three business days following
the Closing Date, a Certificate of Amendment to the Certificate of Incorporation
of each of Germain's and X-X changing their respective names to names reasonably
acceptable to Buyer. On the Closing Date, the Buyer shall have received a copy
of such executed Certificates.
(k) The Buyer shall have received from the Sellers affidavits pursuant to
Section 7(w) above, certifying to compliance with FIRPTA.
(l) The Buyer and X-X shall have entered into the Service Agreement and
executed to the extent applicable, all ancillary documents thereto including,
but not limited to, a security agreement and financing statements.
(m) The Buyer shall have received from Flintrock an assignment of the LLC
Interest in a form satisfactory to counsel to Buyer.
Section 13. Conditions Precedent to the Sellers' and Flintrock's
----------------------------------------------------
Obligations. The obligations of the Sellers under this Agreement are subject to
-----------
the following conditions (any of which may be waived in writing in whole or in
part by the Sellers or Xxxxxxxxx):
(a) The Sellers shall have received a written opinion of legal counsel for
the Buyer, dated as of the Closing Date.
(b) On the Closing Date, the Sellers shall have received payment in the
amount of the Cash Payment by wire transfer as set forth in Section 2A above.
(c) The Sellers shall have received copies of the minutes and resolutions
of the Board of Directors of the Buyer showing the authorization and approval by
such Board of the execution and delivery by the Buyer to the Sellers of this
Agreement and the performance of the obligations of the Buyer under this
Agreement and the other instruments and agreements contemplated hereby,
certified as of a recent date by each Secretary or another officer of the Buyer.
(d) The Sellers shall have received a certificate of incumbency identifying
the officers and directors of the Buyer immediately before the Closing Date.
(e) The Sellers shall have received all documents required to be delivered
to the Sellers under any other provision of this Agreement.
(f) All applicable notice requirements and/or waiting periods required by
the WARN Act and/or the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act shall have
been met with respect to the employee terminations and transactions contemplated
by this Agreement.
Section 14. Conditions Precedent to Obligations of Both the Seller and the
--------------------------------------------------------------
Buyer. The obligations of both the Sellers and the Buyer to complete this
-----
transaction shall be subject to the fulfillment at or prior to the Closing Date
of the condition that no action or proceeding shall have been instituted or
threatened by any public authority or private person prior to the Closing Date
before any court or administrative body to restrain, enjoin or otherwise prevent
the consummation of this transaction or to recover any damages or obtain other
relief as a result of this transaction.
Section 15. Subsequent Events. (a) Buyer may, at its own expense, conduct
-----------------
an audit of the financial statements of each Seller ("Audited Financial
Statements"), certified by Coopers & Xxxxxxx, L.L.P. or KPMG Peat Marwick LLP,
independent certified public accountants (or any other auditor chosen by the
Buyer), for all periods required of Buyer under the rules and regulations of the
Securities and Exchange Commission (the "Rules"). The Sellers, Flintrock and
Xxxxxxxxx hereby agree to provide Buyer, its accountants and any other of their
representatives with full and free access to the books and records of the
Business and to cooperate fully with all such representatives of Buyer so that
the Audited Financial Statements may be prepared on a timely basis. The Sellers
and Xxxxxxxxx shall cooperate in every way to expedite and facilitate the
Audited Financial Statements which shall be prepared in accordance with
generally accepted accounting principles applied consistently during the periods
covered and in accordance with the Rules.
(b) Each Seller, Flintrock and Xxxxxxxxx, on the one hand, and the Buyer,
on the other, hereby agrees that if it receives any payment which is for the
account of the other, it shall receive the same for the account of such other
party to the extent of such other party's interest therein and shall promptly
pay the same to such other party.
Section 16. Termination. (a) This Agreement may be terminated:
-----------
(i) By mutual written consent of (a) the Sellers and Xxxxxxxxx on the
one hand, and (b) the Buyer on the other hand; or
(ii) If all conditions preceding the Closing are not satisfied by
October 30, 1996.
(b) In the event of termination of this Agreement, Sections 21, 22, 25, 27,
28 and 29 of this Agreement shall survive any such termination.
Section 17. Bulk Sales Acts. The Sellers and the Buyer agree to waive
---------------
compliance with all applicable State Bulk Sales Acts and the rules and
regulations promulgated thereunder.
Section 18. Orderly Transfer. The Sellers shall, and hereby agree to,
----------------
cooperate with the Buyer in all reasonable ways, at no material direct or
indirect cost to the Sellers, in effecting any orderly transfer to the Buyer of
the Assets and the Business to be acquired by the Buyer hereunder.
Section 19. Parties in Interest. This Agreement shall be binding upon and
-------------------
shall inure to the benefit of the parties and their successors and assigns.
Nothing herein expressed or implied is intended or shall be construed to confer
upon or to give any person, firm, or corporation other than the parties hereto
any rights or remedies under or by reason hereof.
Section 20. Entire Agreement. This instrument, including the Schedules
----------------
and Exhibits hereto, contains the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof and shall not be
modified or affected by any offer, proposal, statement or representation, oral
or written, made by or for any party in connection with the negotiation of the
terms hereof. All references herein to this Agreement shall specifically
include, incorporate and refer to the Schedules and Exhibits attached hereto
which are hereby made a part hereof. There are no representations, promises,
warranties, covenants, undertakings or assurances (express or implied) other
than those expressly set forth or provided for herein and in the other documents
referred to herein. This Agreement may not be modified or amended orally, but
only by a writing signed by all the parties hereto.
Section 21. Governing Law; Consent to Jurisdiction. This Agreement and
--------------------------------------
all rights and obligations hereunder shall be governed by, and construed in
accordance with, the laws of the State of New York, applicable to agreements
made
and to be performed wholly within said State, without regard to the conflicts of
laws principles of such State.
The parties each hereby submit, unconditionally and irrevocably, to
the jurisdiction of the state and federal courts of competent jurisdiction in
the State of California for the purpose of any lawsuit.
The parties hereto waive trial by jury in any litigation in any court
with respect to, in connection with, or arising out of, this Agreement, or any
document delivered pursuant to this Agreement, or the validity, protection,
interpretation, collection or enforcement thereof.
Section 22. Expenses. Each party hereto shall pay its own expenses and
--------
fees incidental to the preparation of this Agreement, the carrying out of the
provisions of this Agreement and the consummation of the transactions
contemplated hereby, unless otherwise agreed to herein.
Section 23. Severability. If any part of this Agreement is held to be
------------
unenforceable or invalid under, or in conflict with, the applicable law of any
jurisdiction, the unenforceable, invalid or conflicting part shall, to the
extent permitted by applicable law, be narrowed or replaced, to the extent
possible, with a judicial construction in such jurisdiction that effectuates the
intent of the parties regarding this Agreement and such unenforceable, invalid
or conflicting part. To the extent permitted by applicable law, notwithstanding
the unenforceability, invalidity or conflict with applicable law of any part of
this Agreement, the remaining parts shall be valid, enforceable and binding on
the parties.
Section 24. Notices.
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(a) All notices, requests, consents and demands by the parties hereunder
shall be delivered by hand, or telecopier at the applicable telecopier numbers
designated below (with confirmation received) by recognized national overnight
courier or by deposit in the United States mail, postage prepaid, by registered
or certified mail, return receipt requested, addressed to the party to be
notified at the addresses set forth below:
(i) if to the Sellers or Flintrock, to:
Xxxxxxxxx Holdings, Inc.
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Financial Officer
Telecopier (000) 000-0000
with a copy to:
Jeffer, Mangels, Xxxxxx & Marmaro LLP
2121 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Telecopier: (000) 000-0000
(ii) if to the Buyer to:
AgriBioTech, Inc.
0000 Xxxxxx Xxxx, Xxxxx X-00
Xxx Xxxxx, Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, President
Telecopier No.: (000) 000-0000
with a copy to:
Snow Xxxxxx Xxxxxx P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telecopier No.: (000) 000-0000
(b) Notices given by mail shall be deemed effective on the earlier of the
date shown on the proof of receipt of such mail or, unless the recipient proves
that the notice was received later or not received, three (3) days after the
date of mailing thereof. Other notices shall be deemed given on the date of
receipt. Any party hereto may change the address specified in Section 24(a) by
written notice to the other parties hereto.
Section 25. Amendment; Non-Waivers. Any provisions of this Agreement may
----------------------
be amended, if and only if, such amendment is written and signed by each party
to this Agreement. Neither any failure nor any delay on the part of any party
to this Agreement in exercising any right, power or privilege hereunder shall
operate as a waiver of any rights of such party, unless such waiver is made by a
writing executed by the party and delivered to the other parties hereto, nor
shall a single or partial exercise of any right preclude any other or further
exercise of any other right, power or privilege accorded to any party hereto.
Section 26. Assignment. This Agreement may not be assigned by any party
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without the prior written consent of the other parties.
Section 27. Disclosure. From and after the date of this Agreement until
----------
the termination of this Agreement, neither the Sellers, Flintrock nor Xxxxxxxxx
will (i) solicit or encourage inquiries or proposals with respect to, or furnish
any information relating to, or participate in, any negotiations or discussions
concerning the sale of the Assets or the Business with anyone other than the
Buyer; or (ii) unless otherwise required by law, neither party shall make any
public announcement without prior approval of the language of such announcement
by the other which approval shall not be unreasonably withheld.
Section 28. Confidentiality. From and after the date of this Agreement
---------------
until the termination of this Agreement, the Buyer and its employees and
representatives and the Sellers and its representatives will maintain the
confidentiality of all documents and information of a confidential nature
disclosed to the other party in the course of their negotiations and the Buyer's
due diligence review and will in no event use any confidential information for
any purpose other than for the evaluation of the transactions contemplated
herein and the financing of this transaction and in the event of termination of
this Agreement will destroy all copies of documentation which each party may
have delivered to the other party.
Section 29. Miscellaneous. Each of the parties hereto shall use its best
-------------
efforts to take or cause to be taken, and to cooperate with the other parties
hereto to the extent necessary with respect to, all action, and to do, or cause
to be done, consistent with applicable law, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by this
Agreement.
Section 30. Headings; Recitals. The headings and recitals contained herein
------------------
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
Section 31. Counterparts. This Agreement may be executed and delivered in
------------
multiple counterpart copies, each of which shall be an original and all of which
shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement on the date first above written.
GERMAIN'S, INC. (SELLER)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx,
Chief Operating Officer
X-X RESEARCH, INC. (SELLER)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx,
Chief Operating Officer
FLINTROCK, INC. (FLINTROCK)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx,
Chief Operating Officer
XXXXXXXXX HOLDINGS, INC. (XXXXXXXXX)
By: /s/ Xxxxx Xxxxxxx
------------------------------
Xxxxx Xxxxxxx,
Chief Operating Officer
AGRIBIOTECH, INC. (BUYER)
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, President
GERMAIN'S SEEDS, INC. (NEVADA)
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, President
X-X RESEARCH, INC. (NEVADA)
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, President
