ASSET PURCHASE AGREEMENT
Execution copy
THIS ASSET PURCHASE AGREEMENT (this
“Agreement”), dated as of
November 30, 2020, is by and between Beijing JWGB Sci. & Tech.
Co., Ltd, a corporation formed under the laws of the People’s
Republic of China (“Purchaser”), and Altamira Instruments, Inc., a
Delaware corporation (“Seller”).
RECITALS
WHEREAS, Seller owns and operates a
catalyst research instrument and bench-scale micro-reactor systems
business (including the AMI and BenchCAT product lines and related
products currently marketed and sold under the Altamira brand)(the
“Business”);
and
WHEREAS, Seller is willing to sell to
Purchaser the assets utilized by Seller in operating the Business,
and Purchaser is willing to purchase such assets, all in accordance
with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the
mutual covenants and undertakings contained herein, and subject to
and on the terms and conditions set forth herein, the parties
hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Exhibit A to this Agreement
contains definitions of certain defined terms used in this
Agreement or cross-references to places in this Agreement where
those terms are defined in context.
ARTICLE II
2.1 Purchase of Assets by
Purchaser.
(a) Purchased Assets. Upon the
terms and subject to the conditions of this Agreement and on the
basis of the representations, warranties and agreements contained
herein, at the Closing, Seller shall sell, assign, transfer, convey
and deliver to Purchaser all of Seller’s right, title and
interest in and to all assets used by it in the conduct of the
Business, whether tangible or intangible (including goodwill),
real, personal or mixed, but excluding the Excluded Assets, free
and clear of all Liens (the “Purchased Assets”). The
Purchased Assets include all of the right, title and interest of
Seller in and to the following assets used in the conduct of the
Business by Seller:
(i) all machinery,
jigs, tools, dies, equipment and devices (including data processing
hardware and related telecommunications equipment, media and
tools), furniture, fixtures, office equipment, computer hardware,
supplies, materials and tangible other personal property of Seller,
including those items described on Schedule 2.1(a)(i), subject to
normal usage and receipts through the Closing Date (the
"Tangible Personal
Property");
(ii) all
inventory, finished goods, raw materials, work in progress,
packaging, supplies, parts and other inventories, including those
items described on Schedule 2.1(a)(ii), subject to
normal usage and receipts through the Closing Date (the
“Inventory”);
(iii) all
websites, domain names, and email accounts described on
Schedule
2.1(a)(iii) associated with the Business (for the avoidance
of doubt, Purchaser shall be liable for the fees and subscription
costs associated therewith on and after the Closing
Date);
(iv) all
marketing or promotional designs, sales literature, brochures,
advertisements, concepts, literature, rights against other Persons
in respect of any of the foregoing and any other promotional assets
used or useful or developed or acquired for use in connection with
the Business;
(v) all formulas,
know-how, trademarks, service marks, trade names, logos, trade
dress, copyrights, technology, trade secrets, inventions, models,
processes, formulas, techniques, designs, licenses, pricing
policies, information as to the identities or requirements of
customers or potential customers, market information, market
analyses, marketing plans, operating or management policies,
procedures and forms, computer programs developed, owned or
maintained by Seller (including all related source code, object
code, technical or user documentation, manuals and databases), and
all other proprietary rights of Seller used or useful or developed
or acquired for use in the Business (collectively, the
“Intellectual
Property”);
(vi) the
contracts and agreements listed on Schedule 2.1(a)(vi) (the
“Scheduled
Contracts”);
(vii) all
prepaid deposits, advances and other prepaid expenses related to
contracts and agreements on Schedule
2.1(a)(vi);
(viii) all
other assets used in the conduct of the Business except for
Excluded Assets, whether or not reflected on the Books and Records
of Seller; and
(ix) all
books, records, files and papers relating to, or necessary to the
conduct of, the Business, including drawings, computer programs,
manuals and data, sales and promotional materials, correspondence,
research and development records, prototypes and models, lists of
present and former customers, customer credit information,
customers’ pricing information, business plans, studies and
analyses, whether prepared by Seller or a third party, relating in
any respect to the Business (including all books of account, but
excluding the corporate books and records specified in Section 2.1(b)(vi))
(collectively, “Books and
Records”).
(b) Excluded Assets.
Notwithstanding anything in Section 2.1(a), the
Purchased Assets shall not include any of the following (the
“Excluded
Assets”):
(i) cash and cash
equivalents;
(ii) Seller’s
trade accounts receivable (billed and unbilled) and miscellaneous
receivables through October 14, 2020 and as specifically set forth
on Schedule
2.1(b)(ii) (the “Accounts
Receivable”);
(iii) bank
accounts;
(iv) all
contracts that are not Assumed Contracts;
(v) all prepaid Taxes
and all rights and claims of Seller to refunds (including related
interest) of Taxes paid by Seller;
(vi) the
corporate seals, organizational documents, minute books, equity and
capitalization records, Tax Returns, accounting records in
Quickbooks, books of account or other records having to do with the
corporate organization of Seller, all employee-related or employee
benefit-related files or records, and any other books and records
which Seller is prohibited from disclosing or transferring to
Purchaser under applicable Law and is required by applicable Law to
retain;
(vii) all
insurance policies of Seller and all rights to applicable claims
and proceeds thereunder;
(viii) all
rights and claims of Seller under this Agreement;
(ix) any
Permit the transfer or purported transfer of which would violate
applicable Law; and
(x) any leased personal
property.
(c) Assumed Liabilities. Purchaser
shall assume, and agree to pay, perform, fulfill and discharge, the
following obligations of Seller and shall assume, and agree to pay,
perform, fulfill and discharge, the following obligations of Seller
(collectively, the “Assumed
Liabilities”):
(i) Subject to
Section 2.1(d)(i),
all obligations of Seller accrued prior to the Closing under
Seller’s Scheduled Contracts (collectively, the
“Assumed
Contracts”) to the extent, and only to the extent,
such obligations are required to be performed after the Closing
Date including, without limitation, installations and warranty
repairs (provided, that such installations and warranty repairs
shall be invoiced to, and paid by, Seller at a rate of $115 per
hour of labor plus payment or reimbursement for usual and customary
expenses incurred in connection therewith);
(ii) All
liabilities and obligations for Taxes relating to the Business, the
Purchased Assets or the Assumed Liabilities for any taxable period
commencing on or after the Closing Date; and
(iii) all
other liabilities and obligations arising out of or relating to
Purchaser's ownership or operation of the Business and the
Purchased Assets from and after the Closing.
(d) Retained Liabilities. Purchaser
shall not assume any liabilities or obligations of Seller (whether
or not relating to the Business or the Purchased Assets, and
whether known or unknown, absolute, accrued, contingent or
otherwise, or whether due or to become due, arising out of events
or transactions or facts occurring on, prior to, or after the
Closing Date), other than Assumed Liabilities (the
“Retained
Liabilities”), including, but not limited to, the
following:
(i) All trade accounts
payable by Seller to third parties and other accrued expenses in
connection with the Business that remain unpaid as of October 14,
2020 and as specifically set forth on Schedule
2.1(b)(ii);
(ii) all
liabilities and obligations, whether absolute, accrued, contingent
or otherwise, for Taxes including any such liability or obligation
for any Taxes (a) of Seller or (b) relating to the Business, the
Purchased Assets or the Assumed Liabilities for any taxable period
ending on or prior to the Closing Date;
(iii) all
liabilities and obligations relating to current or former
employees, directors, agents, consultants or other independent
contractors of Seller relating to services performed, benefits
accrued or claims accrued or incurred on or prior to the Closing,
including all Severance Expense;
(iv) any
liability or claim for liability (whether in contract, in tort or
otherwise, and whether or not successful) related to any lawsuit or
threatened lawsuit or claim (including any claim for breach or
non-performance of any Contract) based upon actions, omissions or
events relating to the operation of the Business or the Purchased
Assets occurring on or prior to the Closing Date; and
(v) all liabilities and
obligations arising out of any Legal Proceeding, inquiry, claim,
Order or investigation by or before any Governmental Authority
arising out of events, transactions, facts, circumstances, acts or
omissions which occurred, existed or commenced prior to or on the
Closing Date.
2.2 Purchase Price. Upon the terms and
subject to the conditions of this Agreement and on the basis of the
representations, warranties and agreements contained herein, the
aggregate consideration to be paid by Purchaser to Seller to
acquire the Purchased Assets (the “Purchase Price”) will be
an amount equal to Four Hundred Forty Thousand Dollars ($440,000)
plus trade accounts
payable paid by Seller to third parties prior to the Closing on
behalf of Purchaser, if any, minus advances received by
Seller from customers of Purchaser prior to the Closing, if
any.
2.3 Closing; Payments at the
Closing.
(a) Subject to the
fulfillment or waiver of the conditions precedent set forth in
Section 2.4, the
closing of the transactions contemplated hereby (the
“Closing”) shall take
place remotely via the exchange of documents and signatures on the
date hereof (the “Closing Date”). All
transactions contemplated herein to occur on and as of the Closing
Date shall be deemed to have occurred simultaneously and to be
effective as of 12:01 a.m. New York time on such date. At the
Closing, Purchaser shall make the payments provided for in
Section 2.3(b), and
deliver the documents required to be delivered pursuant to
Section 2.4(b), and
Seller shall deliver the documents required to be delivered
pursuant to Section
2.4(a).
(b) At the Closing and
subject to the terms and conditions set forth in this Agreement,
the Purchase Price will be paid as follows:
(i) Purchaser will
deliver to Seller by wire transfer or delivery of other immediately
available funds to an account designated by Seller, the sum of Two
Hundred Thousand Dollars ($200,000);
(ii) Purchaser
will execute and deliver to Seller a Note in the original principal
amount of One Hundred Thousand Dollars ($100,000) payable by
December 31, 2020; and
(iii) Purchaser
will execute and deliver to Seller a Note in the original principal
amount of One Hundred Forty Thousand Dollars ($140,000) payable by
January 31, 2021.
2.4 Conditions to Closing.
(a) Conditions to the Obligations of
Purchaser. The obligation of Purchaser to consummate the
transactions contemplated by this Agreement is subject to the
satisfaction of, or waiver by Purchaser of, the following
conditions on or before the Closing Date:
(i) Seller shall have
executed and delivered to Purchaser an assignment and assumption
agreement and xxxx of sale, substantially in the form attached
hereto as Exhibit B
(the “Assignment and
Assumption Agreement and Xxxx of Sale”);
(ii) Seller
shall have delivered to Purchaser a certificate of the secretary of
Seller, in form and substance satisfactory to Purchaser, certifying
resolutions of the board of directors and stockholders of Seller
approving this Agreement, the other Seller Documents and the
transactions contemplated hereby and thereby and setting forth an
incumbency certificate with respect to all officers of Seller
executing this Agreement, the other Seller Documents and/or any
instrument or document contemplated hereby or thereby;
(iii) Seller
shall have delivered to Purchaser its Books and Records;
and
(iv) Seller
shall have executed and delivered to Purchaser such other
conveyance documents as are reasonably appropriate to transfer
title and/or ownership to the Purchased Assets to Purchaser
hereunder and to otherwise consummate the transactions contemplated
hereby.
(b) Conditions to the Obligations of
Seller. The obligation of Seller to consummate the
transactions contemplated by this Agreement is subject to the
satisfaction of, or waiver by Seller of, the following conditions
on or before the Closing Date:
(i) Purchaser shall
execute and deliver to Seller the Notes.
(ii) Purchaser
shall have executed and delivered to Seller the Assignment and
Assumption Agreement and Xxxx of Sale.
(iii) Purchaser
shall have delivered to Seller a certificate of the secretary of
Purchaser, in form and substance satisfactory to Seller, certifying
resolutions of the board of directors of Purchaser approving this
Agreement, the other Purchaser Documents and the transactions
contemplated hereby and thereby and setting forth an incumbency
certificate with respect to all officers of Purchaser executing
this Agreement, the other Purchaser Documents and/or any instrument
or document contemplated hereby or thereby.
2.5 Allocation of the Consideration. The
Purchase Price shall be allocated by Seller and Purchaser among the
Purchased Assets as soon as practicable following the Closing Date,
in a reasonable manner consistent with Section 1060 of the
Code and the Treasury Regulations thereunder (and any similar
provision of state, local or foreign Law, as appropriate);
provided, that, in
the event that Seller and Purchaser are unable to mutually agree
upon such allocation after negotiation in good faith, such dispute
shall be resolved by an impartial nationally recognized firm of
independent certified public accountants mutually appointed by
Purchaser and Seller. The fees and expenses of such accounting firm
shall be borne equally by Seller and Purchaser. Seller and
Purchaser agree that such allocation will be binding on all
parties, and that Seller and Purchaser will report, act and file
Tax Returns (including, but not limited to Internal Revenue Service
Form 8594) in all respects and for all purposes consistent with
such allocation. Neither Seller nor Purchaser shall take any
position (whether in audits, tax returns or otherwise) that is
inconsistent with such allocation unless required to do so by
applicable Law. Seller and Purchaser will notify each other as soon
as reasonably practicable of any audit adjustment or proposed audit
adjustment by any Taxing Authority that affects such
allocation.
ARTICLE III
REPRESENTATIONS
AND WARRANTIES
OF
SELLER
Except
as specifically set forth on the Disclosure Schedule delivered by
Seller to Purchaser upon the date hereof, Seller hereby represents
and warrants to Purchaser as follows as of the date
hereof:
3.1 Organization, Good Standing and Qualification
of Seller; Ownership of Seller; Capitalization.
(a) Seller is a
corporation duly formed, validly existing and in good standing
under the Laws of its respective jurisdiction of formation, with
full power and authority to own or lease its property and assets
and to carry on the Business as presently conducted, and is duly
qualified to do business as a foreign corporation or other entity
and is in good standing in its jurisdiction of formation and in
each jurisdiction where it is duly qualified to do business as a
foreign corporation or other entity. Schedule 3.1(a) lists
each jurisdiction in which each Seller is so
qualified.
(b) Seller does not own
or control (directly or indirectly), or have any right to acquire,
any capital stock, membership interest, partnership interest, joint
venture interest, equity interest or other security interest in any
Person.
3.2 Authorization. Seller has full power
and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. Seller has full
power and authority to execute and deliver each other Seller
Document to be executed by Seller, and to consummate the
transactions contemplated by the Seller Documents. The execution,
delivery and performance by Seller of this Agreement and the
execution, delivery and performance by Seller of the other Seller
Documents to be executed by Seller and the consummation of the
transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on behalf of Seller.
This Agreement has been, and each other Seller Document will be at
or prior to the Closing, duly and validly executed and delivered by
Seller and (assuming the due authorization, execution and delivery
by the other parties hereto and thereto) this Agreement
constitutes, and each other Seller Document when so executed and
delivered will constitute, the legal, valid and binding obligation
of Seller, enforceable against Seller in accordance with their
respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium and similar Laws affecting
creditors’ rights and remedies generally, and subject, as to
enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair
dealing (regardless of whether enforcement is sought in a
proceeding at Law or in equity).
3.3 Non-contravention. Neither the
execution or delivery by Seller of this Agreement or the other
Seller Documents referred to herein nor the consummation of the
transactions contemplated hereby and thereby nor the performance by
Seller of its obligations hereunder and thereunder will (a)
contravene any provision contained in the certificate of
incorporation or bylaws of Seller, (b) violate or result in a
breach (with or without the lapse of time, the giving of notice or
both) of or constitute a default under (i) any Contract to which
Seller is a party or by which Seller is bound or to which any of
the assets or properties of Seller is subject, (ii) any
judgment, Order, decree, Law, rule or regulation or other
restriction of any Governmental Authority, in each case to which
Seller is a party or by which Seller is bound or to which any of
the assets or properties of Seller is subject or (iii) any
applicable Law, (c) result in the creation or imposition of
any Lien on any of the assets or properties of Seller, or (d)
result in the acceleration of, or permit any Person to accelerate
or declare due and payable prior to its stated maturity, any
Assumed Liability and/or Indebtedness of Seller.
3.4 No Consents. Except as set forth in
Schedule 3.4, no
notice to, filing with, or authorization, registration, consent or
approval of, any Governmental Authority or other Person is
necessary for the execution, delivery or performance of this
Agreement or any other Seller Document or the consummation of the
transactions contemplated hereby or thereby by Seller.
3.5 The Purchased Assets. Seller has good
and marketable title to (or valid leasehold or contractual
interests in) all of the Purchased Assets being sold by it
hereunder, free and clear of any and all Liens and, at Closing,
Purchaser will be vested with good, marketable and exclusive title
to the Purchased Assets free and clear of all Liens. No third party
owns or has any interest by lease, license or otherwise in any of
the Purchased Assets. The Purchased Assets constitute all of the
rights, properties, services and assets (real, personal or mixed,
tangible or intangible) which are necessary or desirable for the
conduct of the Business as it is currently operated and are
sufficient for Purchaser to conduct the Business from and after the
Closing Date without interruption and in the Ordinary Course of the
Business. There are no assets or properties used in the operation
of the Business and owned by any Person other than Seller that will
not be leased or licensed to Purchaser under valid, current leases
or license arrangements being assigned to Purchaser hereunder. The
Purchased Assets are adequate for the purposes for which such
assets are currently used or held for use.
3.6 Personal Property. Schedules 2.1(a)(i) sets forth
all personal property used or held for use by Seller in connection
with the Business. All machinery, equipment, furniture, fixtures
and other material items of personal property used in the Business
are in good operating condition and fit for operation in the
Ordinary Course of the Business (subject to normal wear and tear)
with no defects that could reasonably be expected to interfere with
the conduct of the normal operation of such equipment, furniture,
fixtures and other personal property and are suitable for the
purposes for which they are currently being used.
3.7 Real Property. Seller does not own, and
never has owned, any real estate or interests in real
estate.
3.8 Compliance with Laws. Seller is in
compliance in all material respects with all Laws of each
Governmental Authority applicable to its business, operations or
assets. Since inception, Seller has not received any notice of or
been charged with the violation of any Law. Seller is not under
investigation with respect to the violation of any Law, and there
are no facts or circumstances which could reasonably form the basis
for any such violation, other than violations which would have an
immaterial effect upon the Business.
3.9 Financial Advisors. No Person has
acted, directly or indirectly, as a broker, finder or financial
advisor for Seller in connection with the transactions contemplated
by this Agreement and no Person is or will be entitled to any fee
or commission or like payment in respect thereof.
3.10 Environmental
Matters. The Business is being and has been conducted in
compliance in all material respects with all applicable
Environmental Laws. Neither the Business nor Seller nor any
Affiliate of Seller has received any notices, demand letters or
requests for information, arising out of, in connection with, or
resulting from, a violation, or alleged violation, of any
Environmental Law relating to Seller or the Business, and neither
the Business nor Seller nor any Affiliate of Seller has been
notified by any Governmental Authority or any other Person that the
Business or the Purchased Assets have, or may have, any liability
pursuant to any Environmental Law.
3.11 Solvency. Seller is not now insolvent
and Seller will not be rendered insolvent by the sale, transfer and
assignment of the Purchased Assets pursuant to the terms of this
Agreement.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF PURCHASER
Purchaser hereby
represents and warrants to Seller as follows:
4.1 Organization and Good Standing.
Purchaser is a corporation duly formed, validly existing and in
good standing under the laws of its respective jurisdiction of
formation, with full power and authority to own or lease its
properties and to carry on its business as presently
conducted.
4.2 Authorization. Purchaser has full power
and authority to execute and deliver this Agreement and each other
Purchaser Document and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance by
Purchaser of this Agreement and each other Purchaser Document and
the consummation of the transactions contemplated hereby and
thereby have been or will be prior to the Closing Date duly
authorized by all necessary corporate actions on behalf of
Purchaser. This Agreement has been, and each other Purchaser
Document will be at or prior to the Closing, duly and validly
executed and delivered by Purchaser and (assuming the due
authorization, execution and delivery by the other parties hereto
and thereto) this Agreement constitutes, and each other Purchaser
Document when so executed and delivered will constitute, the legal,
valid and binding obligation of Purchaser, enforceable against
Purchaser in accordance with its respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium and
similar Laws affecting creditors’ rights and remedies
generally, and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good
faith and fair dealing (regardless of whether enforcement is sought
in a proceeding at Law or in equity).
4.3 Conflicts; Consents of Third
Parties.
(a) None of the
execution or delivery by Purchaser of this Agreement or any of the
other Purchaser Documents, nor the performance by Purchaser of its
obligations hereunder and thereunder will (i) contravene any
provision contained in the organizational documents of such party
(ii) violate or result in a breach (with or without the lapse of
time, the giving of notice or both) of or constitute a default
under any judgment, Order, decree, Law, rule or regulation or other
restriction of any Governmental Authority, in each case to which
Purchaser is a party or by which it is bound or to which any of its
assets or properties are subject, or (iii) require the consent,
notice or other action by any Person under, conflict with, result
in a violation or breach of, constitute a default under or result
in the acceleration of any agreement to which Purchaser is a
party.
(b) No notice to,
filing with, or authorization, registration, consent or approval
of, any Governmental Authority or other Person is necessary for the
execution, delivery or performance of this Agreement or any other
Purchaser Document or the consummation of the transactions
contemplated hereby or thereby by Purchaser.
4.4 Financial Advisors. No Person has
acted, directly or indirectly, as a broker, finder or financial
advisor for Purchaser in connection with the transactions
contemplated by this Agreement and no Person is or will be entitled
to any fee or commission or like payment in respect
thereof.
4.5 Sufficiency of Funds. Purchaser
has, or will have, sufficient cash on hand or other sources of
immediately available funds to enable it to make payment of
the Purchase Price and consummate the transactions
contemplated by this Agreement.
4.6 Independent Investigation.
Purchaser has conducted its own independent investigation, review
and analysis of the Business and the Purchased Assets, and
acknowledges that it has been provided adequate access to the
personnel, properties, assets, premises, books and records,
and other documents and data of Seller for such purpose. Purchaser
acknowledges and agrees that: (a) in making its decision to enter
into this Agreement and to consummate the transactions
contemplated hereby, Purchaser has relied solely upon its own
investigation and the express representations and warranties of
Seller set forth in Article III of
this Agreement (including related portions of the
Disclosure Schedules); and (b) neither Seller nor any other Person
has made any representation or warranty as to Seller, the Business,
the Purchased Assets or this Agreement, except as
expressly set forth in Article III of
this Agreement (including the related portions of the
Disclosure Schedules).
ARTICLE V
COVENANTS
AND AGREEMENTS
5.1 Transfer and Property Taxes; Bulk Sales
Compliance.
(a) Seller shall pay
any and all liabilities for any excise, sales, use, stamp, value
added, documentary, filing, recording, transfer, stock transfer,
gross receipts, registration, duty, securities transactions or
similar fees or Taxes or governmental charges (together with any
interest or penalty, addition to Tax or additional amount imposed)
as levied by any Taxing Authority or Governmental Authority in
connection with the transactions contemplated by this Agreement
(collectively, “Transfer Taxes”),
regardless of the Person liable for such Transfer Taxes under
applicable Law. Seller shall prepare and file the required Tax
Returns and other required documents with respect to the Transfer
Taxes required to be paid pursuant to the preceding sentence and
shall promptly provide Purchaser with evidence of the payment of
such Transfer Taxes. Purchaser shall cooperate in the filing of any
such required Tax Returns to the extent required.
(b) Purchaser and
Seller each hereby waive compliance with the requirements and
provisions of any bulk sales or other transfer Law with respect to
the sale of any or all of the Purchased Assets to Purchaser, the
transfer of the Transferred Employees or the transactions
contemplated by this Agreement.
5.2 Employment Matters. Purchaser shall
make employment offers, effective as of the consummation of the
transactions contemplated by this Agreement, to such employees of
the Business as Purchaser determines and on terms acceptable to
Purchaser, in its sole discretion. Seller shall terminate the
employment of all of its employees immediately prior to the
Closing. Seller shall be responsible
for the payment, in a manner consistent with past practice, of all
obligations relating to the termination of any employee’s
employment by Seller (collectively, “Severance
Expense”).
5.3 Public Announcements. Unless
otherwise required by applicable Law (based upon the reasonable
advice of counsel), no party to this Agreement shall make any
public announcements in respect of this Agreement or the
transactions contemplated hereby or otherwise communicate with any
news media without the prior written consent of the other party
(which consent shall not be unreasonably withheld or delayed), and
the parties shall cooperate as to the timing and contents of any
such announcement.
5.4 Schedule 2.1(b)(ii). For the
avoidance of doubt, (a) Seller shall retain the trade accounts
receivable (billed and unbilled) and miscellaneous receivables
through October 14, 2020 and as specifically set forth on
Schedule
2.1(b)(ii), (b) Seller shall retain all trade accounts
payable by Seller to third parties and other accrued expenses in
connection with the Business that remain unpaid as of October 14,
2020 and as specifically set forth on Schedule 2.1(b)(ii) and (c)
Purchaser shall provide installations, where necessary, for those
orders as specifically set forth on Schedule 2.1(b)(ii) and
warranty repairs, when necessary, for all products under warranty
sold by Seller prior to the Closing; provided, that such
installations and warranty repairs shall be invoiced to, and paid
by, Seller at a rate of $115 per hour of labor plus payment or
reimbursement for usual and customary expenses incurred in
connection therewith.
5.5 Non-Competition. For a period of four
(4) years commencing on the Closing Date, Seller shall not, and
shall not permit any of its Affiliates to, directly or indirectly,
(i) engage in or assist others in engaging in the Business anywhere
in the world (the “Territory”); or (ii) have
an interest in any Person that engages directly or indirectly in
the Business in the Territory in any capacity, including as a
partner, shareholder, member, employee, principal, agent, trustee
or consultant. Notwithstanding the foregoing, Seller may own,
directly or indirectly, solely as an investment, securities of any
Person traded on any national securities exchange if Seller is not
a controlling Person of, or a member of a group which controls,
such Person and does not, directly or indirectly, own five percent
(5%) or more of any class of securities of such
Person.
ARTICLE
VI
SURVIVAL
OF REPRESENTATIONS AND WARRANTIES;
SURVIVAL
OF COVENANTS; INDEMNIFICATION
(a) Except as set
forth in the immediately succeeding sentences of this Section 6.1(a), the representations
and warranties provided for in this Agreement shall survive the
Closing for one (1) year from the Closing Date. The survival period
of each representation or warranty as provided in this Section 6.1 is hereinafter referred
to as the “Survival
Period.” After the expiration of any such Survival
Period, such representations and warranties shall expire and be of
no further force and effect unless a claim or claims shall have
been asserted by Purchaser or Seller, as the case may be, with
respect thereto on or before the expiration of such Survival
Period.
(b) The covenants
contained in this Agreement shall survive the Closing until
expiration of any statute of limitations applicable
thereto.
(a) Seller shall
indemnify and hold harmless Purchaser, its Affiliates, and their
officers, directors, employees, agents and representatives (the
“Purchaser
Indemnified Parties”), against and in respect of any
and all claims, costs, expenses, damages, liabilities, losses or
deficiencies (including reasonable counsel’s fees and other
reasonable costs and expenses incurred investigating or otherwise
incident to any suit, action or Legal Proceeding) (the
“Damages”) arising out of,
resulting from or incurred in connection with:
(i) any inaccuracy in
any representation or the breach of any warranty made by Seller in
this Agreement or in any Seller Document or certificate delivered
at Closing,
(ii) the
breach by Seller of any covenant or agreement to be performed by
them hereunder or in any Seller Document or certificate delivered
at Closing,
(iii) any
Retained Liability; and
(iv) the
conduct of the Business prior to the Closing.
(b) Purchaser shall
indemnify and hold harmless Seller, its Affiliates and their
officers, directors, employees, agents and representatives (the
“Seller Indemnified
Parties”), against and in respect of any and all
Damages arising out of, resulting from or incurred in connection
with:
(i) any inaccuracy in
any representation or the breach of any warranty made by Purchaser
in this Agreement or in any Purchaser Document or certificate
delivered at Closing,
(ii) the
breach by Purchaser of any covenant or agreement to be performed by
Purchaser hereunder or in any Purchaser Document or certificate
delivered at Closing,
(iii) any
Assumed Liability, and
(iv) the
conduct of the Business on or after the Closing.
(c) With respect to
a matter for which indemnification is sought under this
Section 6.2, the Person providing
such indemnification in respect of such matter pursuant to this
Section 6.2 is hereinafter referred
to as an “Indemnifying Party” and
the Person entitled to be indemnified in respect of such matter
pursuant to the provisions of this Section 6.2 is hereinafter referred
to as an “Indemnified
Party.”
(d) For all federal,
state, local and foreign income tax purposes, all indemnification,
purchase price adjustments and other payments made pursuant to this
Agreement will be treated as an adjustment to the Purchase Price,
unless otherwise required by Law.
6.3 Procedures for Third Party Claims. In
the case of any claim for indemnification arising from a claim of a
third party (a “Third Party Claim”), an
Indemnified Party shall give prompt written notice, following such
Indemnified Party’s receipt of such claim or demand, to the
Indemnifying Party of any claim or demand of which such Indemnified
Party has knowledge and as to which it may request indemnification
hereunder; provided,
however, that failure to give such notice will not affect
such Indemnified Party’s rights hereunder unless, and then
solely to the extent that, the rights of the Indemnifying Parties
from whom indemnity is sought are materially prejudiced as a result
of such failure. The Indemnifying Party shall have the right (and
if they elect to exercise such right, to do so within twenty (20)
days after receiving such notice from the Indemnified Party) to
defend and to direct the defense against any such claim or demand,
in its name or in the name of the Indemnified Party, as the case
may be, at the expense of the Indemnifying Party, and with counsel
selected by the Indemnifying Party. Notwithstanding anything in
this Agreement to the contrary, the Indemnified Party shall, at the
expense of the Indemnifying Party, cooperate with the Indemnifying
Party, and keep the Indemnifying Party fully informed, in the
defense of such claim or demand. The Indemnified Party shall have
the right to participate in the defense of any claim or demand with
counsel employed at its own expense.
6.4 Procedures
for Inter-Party Claims. In the event that an Indemnified
Party determines that it has a claim for Damages against an
Indemnifying Party hereunder (other than as a result of a Third
Party Claim), the Indemnified Party shall give prompt written
notice thereof to the Indemnifying Party, specifying, to the extent
then known, the amount of such claim and any relevant facts and
circumstances relating thereto. The Indemnified Party and the
Indemnifying Party shall negotiate in good faith for the thirty
(30) day period following receipt of such notice regarding the
resolution of any disputed claims for Damages. If no resolution is
reached with regard to such disputed claim between the Indemnifying
Party and the Indemnified Party within such thirty (30) day period,
the Indemnified Party shall be entitled to seek appropriate
remedies in accordance with the terms hereof. In the event that a
party hereto claiming to be an Indemnified Party institutes Legal
Proceedings in order to recover Damages hereunder and the
applicable court refuses to award any
Damages to such party, such
party shall reimburse the defending party for the cost of such
Legal Proceedings (including costs of investigation and reasonable
attorneys’ fees and disbursements).
6.5 Indemnification Payments. Any amount
determined due to Purchaser pursuant to a claim for indemnification
under this Article
VI, or otherwise shall
(a) First, be satisfied
through a right of offset or setoff against the Notes,
and
(b) Second, be paid
directly by Seller.
6.6 Certain Limitations. The
indemnification provided in this Article VI shall be subject to
the following limitations:
(a) [Reserved].
(b) The aggregate
amount of all Damages for which Seller shall be liable pursuant to
this Article VI
shall not exceed the Purchase Price actually received by
Seller. The aggregate amount of all Damages for which Purchaser
shall be liable pursuant to this Article VI shall not exceed
the Purchase Price.
(c) Payments by an
Indemnifying Party pursuant to this Article VI in respect of
any Damages shall be limited to the amount of any liability or
damage that remains after deducting therefrom any insurance
proceeds and any indemnity, contribution or other similar payment
received or reasonably expected to be received by the Indemnified
Party in respect of any such claim. The Indemnified Party shall use
its commercially reasonable efforts to recover under insurance
policies or indemnity, contribution or other
similar agreements for any Damages prior to seeking
indemnification under this Agreement.
(d) Payments by an
Indemnifying Party pursuant to this Article VI in respect of
any Loss shall be reduced by an amount equal to any Tax benefit
realized or reasonably expected to be realized as a result of such
Loss by the Indemnified Party.
(e) In no event shall
any Indemnifying Party be liable to any Indemnified Party for any
punitive, incidental, consequential, special or indirect damages,
including loss of future revenue or income, loss of business
reputation or opportunity relating to the breach or alleged breach
of this Agreement, or diminution of value or any damages based
on any type of multiple.
(f) Each Indemnified
Party shall take, and cause its Affiliates to take, all reasonable
steps to mitigate any Damages upon becoming aware of any event or
circumstance that would be reasonably expected to, or does, give
rise thereto, including incurring costs only to the minimum extent
necessary to remedy the breach that gives rise to such
Damages.
(g) Seller shall not be
liable under this Article VI for any Damages
based upon or arising out of any inaccuracy in or breach of any of
the representations or warranties of Seller contained in
this Agreement if Purchaser had knowledge of such
inaccuracy or breach prior to the Closing.
6.7 Exclusive Remedies. Subject to
Section 7.15, the
parties acknowledge and agree that their sole and exclusive remedy
with respect to any and all claims for any breach of any
representation, warranty, covenant, agreement or
obligation set forth herein or otherwise relating to the subject
matter of this Agreement, shall be pursuant to the
indemnification provisions set forth in this Article VI. In
furtherance of the foregoing, each party hereby waives, to the
fullest extent permitted under Law, any and all rights, claims and
causes of action for any breach of any representation, warranty,
covenant, agreement or obligation set forth herein or
otherwise relating to the subject matter of
this Agreement it may have against the other parties
hereto and their Affiliates and each of their respective
representatives arising under or based upon any Law, except
pursuant to the indemnification provisions set forth in
this Article VI. Nothing in this Section 6.7 shall limit
any Person's right to seek and obtain any equitable relief to which
any Person shall be entitled pursuant to Section 7.15.
ARTICLE VII
MISCELLANEOUS
7.1 Notices. All notices and other
communications hereunder or, except as otherwise provided therein,
under any other Transaction Document, will be in writing and will
be deemed received (a) on the date of delivery if delivered
personally or by telecopy or facsimile or other electronic means
(in the case of electronic means with copies by next day air
courier or by registered or certified mail, return receipt
requested, postage prepaid), (b) on the first (1st) Business Day
following the date of dispatch if delivered by a recognized
next-day courier service, or (c) on the fifth (5th) Business Day
following the date of mailing if delivered by registered or
certified mail, return receipt requested, postage prepaid. All
notices hereunder must be delivered as set forth below, or pursuant
to instructions as may be designated in writing by the party to
receive such notice:
If to
Purchaser:
Beijing
JWGB Sci. & Tech. Co., Ltd
Room
2206, Building 1, Xx. 00, Xxxxx Xxxxx Xxxx
Xxxxxxxxxx, Xxxxxxx
Xxxxxxxx, Xxxxxxx Xxxxx
Attention: Xx. Xxxx
Feng
Email:
xxxxxxxx@xxxx.xxx
If to
Seller:
Altamira
Instruments, Inc.
c/o
Scientific Industries, Inc.
00
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX
00000
Attention: Xxxxxx
X. Xxxxxx, Chief Executive Officer
Email:xxxxxxx@xxxxxxxxxxxxxxxxxxxx.xxx
With a
copy (which shall not constitute notice) to:
Xxxxxxx, Xxxxxx
& Xxxxxxxxxx LLC
000
Xxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn:
Xxxx F.F. Xxxxxxx, Esq.
Email:
xxxxxxxx@xxxxxxxxxx.xxx
7.2 Expenses. Regardless of whether the
transactions provided for in this Agreement are consummated, except
as otherwise provided herein, each party hereto shall pay its own
expenses incident to this Agreement and the transactions
contemplated hereby.
7.3 Governing Law; Consent to Jurisdiction;
Arbitration.
(a) This Agreement and
all of the other Transaction Documents will be governed in all
respects, including but not limited to, as to validity,
interpretation and effect, by the internal Laws of the State of
Delaware, without giving effect to its principles or rules of
conflict of Laws (to the extent such principles or rules are not
mandatorily applicable by statute and would require or permit the
application of the Laws of another jurisdiction).
(b) Each of the parties
hereto irrevocably consents to the exclusive jurisdiction of any
federal or state court located within Pittsburgh, Pennsylvania, in
connection with any matter based upon or arising out of this
Agreement or the matters contemplated herein, agrees that process
may be served upon them in any manner authorized by the laws of the
State of Pennsylvania for such persons and waives and covenants not
to assert or plead any objection which they might otherwise have to
such jurisdiction and such process.
(c) Each party to this
Agreement irrevocably consents to service of process in the manner
provided for notices in Section 7.1. Nothing in this
Agreement will affect the right of any party to this Agreement to
serve process in any other manner permitted by Law.
(d) Any dispute arising
out of this Agreement or any transaction contemplated hereby, which
is not settled by mutual consent shall be finally settled by
binding arbitration, conducted in accordance with the Commercial
Arbitration Rules of the American Arbitration Association by one
arbitrator appointed in accordance with said rules. If Purchaser
and Seller are unable to agree upon the identity of such arbitrator
within 10 days of demand by Purchaser or Seller, then either
Purchaser or Seller shall have the right to petition a presiding
justice of the Supreme Court of Pennsylvania, Allegheny County, to
appoint an arbitrator. The arbitration shall be held in Pittsburgh,
Pennsylvania. The costs of the arbitration, including
administrative and arbitrator’s fees, shall be shared by
Purchaser and Seller unless the arbitrator determines otherwise.
The arbitrator’s decision shall be the sole, exclusive and
binding remedy between them regarding any and all disputes,
controversies, claims and counterclaims presented to the
arbitrator. Application may be made to any court having
jurisdiction over the party (or its assets) against whom the
decision is rendered for a judicial recognition of the decision and
an order of enforcement.
7.4 Assignment; Successors and Assigns; No Third
Party Rights. Except as otherwise provided herein, the
rights and obligations of a party under this Agreement may not be
assigned, and any attempted assignment shall be null and void. This
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, assigns and legal
representatives. This Agreement shall be for the sole benefit of
the parties to this Agreement and their respective successors,
assigns and legal representatives and is not intended, nor shall be
construed, to give any Person, other than the parties hereto and
their respective successors, assigns and legal representatives, any
legal or equitable right, remedy or claim hereunder; provided,
however, that Article
VI shall also be for the benefit of the Purchaser
Indemnified Parties and the Seller Indemnified
Parties.
7.5 Counterparts; Facsimile. This Agreement
and each other Transaction Document may be executed in one or more
counterparts, by facsimile (or a photocopy or PDF) or otherwise.
Each such counterpart shall be deemed an original agreement, but
all of which together shall constitute one and the same
instrument.
7.6 Headings. The headings in this
Agreement are for reference purposes only, and shall not in any way
affect the meaning or interpretation of this
Agreement.
7.7 Entire Agreement. This Agreement,
including the Schedules and Exhibits attached thereto, together
with the other Transaction Documents, constitute the entire
agreement among the parties with respect to the matters covered
hereby and supersedes all previous written, oral or implied
understandings among them with respect to such
matters.
7.8 Amendment and Modification. This
Agreement shall only be amended or modified in a writing signed by
Seller, on the one hand, and Purchaser, on the other
hand.
7.9 Waiver. Any of the terms or conditions
of this Agreement may be waived at any time by the party or parties
entitled to the benefit thereof, but only by a writing signed by
the party or parties waiving such terms or conditions.
7.10 Severability.
The invalidity of any portion hereof shall not affect the validity,
force or effect of the remaining portions hereof. If it is ever
held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, such
restriction shall be enforced to the maximum extent permitted by
Law.
7.11 Joint
Negotiation and Drafting. The parties hereto have
participated jointly in the negotiation and drafting of this
Agreement and the agreements ancillary hereto and, in the event
that an ambiguity or question of intent or interpretation arises,
this Agreement and the agreements ancillary hereto shall be
construed as jointly drafted by the parties hereto or thereto and
no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any provision
of this Agreement or of any of the agreements ancillary
hereto.
7.12 Waiver
of Trial by Jury. EACH PARTY ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT OR ANY
AGREEMENT EXECUTED PURSUANT TO THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY AGREEMENT
EXECUTED PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (iii) IT MAKES SUCH WAIVER
VOLUNTARILY, AND (iv) IT HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.12.
7.13 Attorneys’
Fees. If any Legal Proceeding relating to any of the
Transaction Documents or the enforcement of any provision of any of
the Transaction Documents is brought against any party to this
Agreement, the prevailing party shall be entitled to recover
reasonable attorneys’ fees, costs and disbursements, in
addition to any other relief to which the prevailing party may be
entitled.
7.14 Further
Actions. Each party hereto shall, and shall cause its
Affiliates to, execute and deliver such further instruments and
take such additional action as any other party hereto may
reasonably request to effect or consummate the transactions
contemplated hereby. Each such party shall, on or prior to the
Closing, use its commercially reasonable efforts to fulfill or
obtain the fulfillment of the conditions precedent to the
consummation of the transactions contemplated hereby, including the
execution and delivery of any documents, certificates, instruments
or other papers that are reasonably required for the consummation
of the transactions contemplated hereby.
7.15 Specific
Performance. Notwithstanding anything to the contrary
contained in this Agreement, the parties acknowledge and agree that
there may not be an adequate remedy at law for certain breaches of
this Agreement. Accordingly, the parties acknowledge and agree
that, in addition to all other remedies available (at Law or
otherwise), the parties, as appropriate, shall be entitled to
equitable relief (including injunction and specific performance) as
a remedy for any breach or threatened breach of any provision of
this Agreement. The parties further acknowledge and agree that no
party shall be required to prove actual damages or post any bond or
any other security in connection with or as a condition to
obtaining any remedy referred to in this Section 7.15, and the parties
waive any right any of them may have to require that the other
parties, as applicable, obtain, furnish or post any such bond or
similar instrument.
[Remainder
of page intentionally left blank]
262232
IN WITNESS WHEREOF, the parties hereto
have caused this Asset Purchase Agreement to be duly executed as of
the day and year first above written.
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PURCHASER:
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BEIJING JWGB SCI. & TECH. CO., LTD
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By: /s/
Yang Feng
Name:
Xx. Xxxx Feng
Title:
President
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SELLER:
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ALTAMIRA INSTRUMENTS, INC.
By: /s/
Xxxxxx Xxxxxx
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Name:
Xxxxxx X. Xxxxxx
Title:
Chief Executive Officer
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EXHIBIT A
DEFINITIONS
“Affiliate” means, with
respect to any Person, any other Person who directly or indirectly,
through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person. The term
“control” means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting
securities, by contract or otherwise, and the terms
“controlled” and “controlling” have
meanings correlative thereto.
“Business
Day” means a day, other than a Saturday or Sunday, on
which commercial banks in Pittsburgh, Pennsylvania are open for the
general transaction of business.
“Code” means the Internal
Revenue Code of 1986, as amended.
“Contract” means any
contract, agreement, indenture, note, bond, mortgage, loan,
instrument, lease, license, commitment or other arrangement,
understanding, undertaking, commitment or obligation, whether
written or oral.
“Dollars”
or “$,” when used in this Agreement or any other
Transaction Document, means United States dollars unless otherwise
stated.
“Environmental Laws” means
any federal, state or local Law, statute, ordinance, rule,
regulation, license, permit, authorization, approval, consent,
court Order, judgment, decree, injunction, code requirement or
agreement with any Governmental Authority (x) relating to pollution
(or the cleanup thereof or the filing of information with respect
thereto), human health or the protection of air, surface water,
ground water, drinking water supply, land (including land surface
or subsurface), plant and animal life or any other natural
resource, or (y) concerning exposure to, or the use, storage,
recycling, treatment, generation, transportation, processing,
handling, labeling, production or disposal of Regulated Substances,
in each case as amended and as now or hereafter in effect. The term
“Environmental Laws” includes any common law or
equitable doctrine (including injunctive relief and tort doctrines
such as negligence, nuisance, trespass and strict liability) that
may impose liability or obligations for injuries or Damages due to
or threatened as a result of the presence of, exposure to, or
ingestion of, any Regulated Substance.
“Governmental Authority”
means any national, federal, state, provincial, county, municipal
or local government, foreign or domestic, or the government of any
political subdivision of any of the foregoing, or any entity,
authority, agency, ministry or other similar body exercising
executive, legislative, judicial, regulatory or administrative
authority or functions of or pertaining to government, including
any authority or other self-regulatory organization or
quasi-governmental agency established to perform any of such
functions, and also including any non-governmental trade
association, union or organization, guild or similar
body.
“Indebtedness” means at a
particular time, without duplication, (i) any obligations
under any indebtedness for borrowed money (including all principal,
interest, premiums, penalties, fees, expenses, indemnities and
breakage costs), (ii) any indebtedness evidenced by any note,
bond, debenture or other debt security, (iii) deferred
purchase price for assets, property or services, whether
contingent, fixed or otherwise, (iv) any commitment by which a
Person assures a creditor against loss (including contingent
reimbursement obligations with respect to letters of credit),
(v) any indebtedness pursuant to a guarantee, (vi) any
obligations under capitalized leases or with respect to which a
Person is liable, contingently or otherwise, as obligor, guarantor
or otherwise, or with respect to which obligations a Person assures
a creditor against loss, and (vii) any indebtedness secured by
a Lien on a Person’s assets.
“Knowledge”,
“to the Knowledge of
Seller” or “to Seller’s
Knowledge” means the actual or constructive knowledge,
after due inquiry, of each of the officers of Seller.
“Law” means any foreign,
federal, state or local law (including common law), statute, code,
ordinance, rule, regulation or other requirement, bylaws or rules
of any Governmental Authority applicable to its member or
participants.
“Legal Proceeding” means
any judicial, administrative or arbitral actions, suits,
investigations, inquiries, proceedings or claims by or before a
Governmental Authority.
“Lien” or
“Liens”
means any mortgage, pledge, security interest, right of first
refusal, option, encumbrance, lien or charge of any kind (including
any conditional sale or other title retention agreement or lease in
the nature thereof), any sale of receivables with recourse against
Seller, any filing or agreement to file a financing statement as
debtor under the Uniform Commercial Code or any similar statute
(other than to reflect ownership by a third party of property
leased to Seller under a lease which is not in the nature of a
conditional sale or title retention agreement), any subordination
arrangement in favor of another Person, or voting trusts, proxies
or restrictions (other than restrictions imposed by federal or
state securities laws) of any kind.
“Notes” means the
unsecured promissory notes to be delivered by Purchaser pursuant to
Sections
2.3(b)(ii)-(iii), each substantially in the form annexed
hereto as Exhibit
C.
“Order” means any order,
injunction, judgment, decree, ruling, writ, assessment or
arbitration award of a Governmental Authority.
“Ordinary Course of the
Business” means the ordinary and usual course of
day-to-day operations of the Business through the date hereof
consistent with past practice.
“Permits” means any
approvals, authorizations, consents, licenses, permits or
certificates of a Governmental Authority.
“Person” means an
individual, partnership, corporation, limited liability company,
joint stock company, unincorporated organization or association,
trust or joint venture, or a governmental agency or political
subdivision thereof.
“Purchaser Documents”
means this Agreement and the Assignment and Assumption Agreement
and Xxxx of Sale.
“Regulated Substances”
means pollutants, contaminants, hazardous or toxic substances,
compounds or related materials or chemicals, hazardous materials,
hazardous waste, flammable explosives, radon, radioactive
materials, asbestos, urea formaldehyde foam insulation,
polychlorinated biphenyls, petroleum and petroleum products
(including, but not limited to, waste petroleum and petroleum
products) as regulated under applicable Environmental
Laws.
“Seller Documents” means
this Agreement and the Assignment and Assumption Agreement and Xxxx
of Sale.
“Subsidiary” means, with
respect to any Person, any entity of which securities or other
ownership interests representing more than 50% of the equity or
more than 50% of the ordinary voting power or, in the case of a
partnership, more than 50% of the general partnership interests or
more than 50% of the profits or losses are, as of the date hereof
or as of the Closing Date, owned, controlled or held by such
Person.
“Tax”, “tax”, “Taxes” or
“taxes”
means (i) all federal, state, local or foreign taxes, charges,
fees, imposts, levies or other assessments, including all net
income, alternative minimum or add-on minimum tax, gross income,
gross receipts, capital, paid-up capital, sales, use, ad valorem,
value added, transfer, franchise, profits, inventory, capital
stock, license, withholding, payroll, employment, social security,
unemployment, excise, severance, stamp, occupation, royalty,
property, estimated, and environmental taxes, windfall profits tax,
customs duties, fees, or other like assessments and charges of any
kind whatsoever, (ii) all interest, penalties, fines, additions to
tax or additional amounts imposed by any Taxing Authority in
connection with any item described in clause (i), and (iii) any
transferee liability in respect of any items described in clauses
(i) and/or (ii) payable by reason of Contract, assumption,
transferee liability, operation of Law, Treasury Regulations
Section 1.1502-6(a) (or any predecessor or successor thereof of any
analogous or similar provision under Law) or otherwise, in each
case whether or not disputed.
“Taxing Authority” means
the Internal Revenue Service and any other Governmental Authority
responsible for the administration of any Tax.
“Tax Return” or
“tax
return” means any return, report or statement filed or
required to be filed with respect to any Tax (including any
attachments thereto, and any amendments thereof) including any
information return, claim for refund, amended return or declaration
of estimated Tax.
“Transaction Documents”
means the Purchaser Documents and the Seller
Documents.
“Treasury Regulations”
means the regulations promulgated under the Code, as such
regulations may be amended from time to time.
Other Definitions. The following table identifies the
sections in this Agreement where certain other definitions are set
forth:
|
Defined Term
|
Section
|
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Agreement
|
Opening
Paragraph
|
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Accounts
Receivable
|
2.1(b)(ii)
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Assignment
and Assumption Agreement and Xxxx of Sale
|
2.4(a)(i)
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Assumed
Contracts
|
2.1(c)(i)
|
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Assumed
Liabilities
|
2.1(c)
|
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Books
and Records
|
2.1(a)(ix)
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Business
|
Recitals
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Closing
|
2.3(a)
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Closing
Date
|
2.3(a)
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Damages
|
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Excluded
Assets
|
2.1(b)
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Indemnified
Party
|
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Indemnifying
Party
|
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Intellectual
Property
|
2.1(a)(vi)
|
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Inventory
|
2.1(a)(ii)
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Purchase
Price
|
2.2
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Purchased
Assets
|
2.1(a)
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Purchaser
|
Opening
Paragraph
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Purchaser
Indemnified Parties
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Retained
Liabilities
|
2.1(d)
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Seller
|
Opening
Paragraph
|
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Scheduled
Contracts
|
2.1(a)(vi)
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Seller
Indemnified Parties
|
|
|
Severance
Expense
|
5.2
|
|
Survival
Period
|
|
|
Tangible
Personal Property
|
2.1(a)(i)
|
|
Territory
|
5.5
|
|
Third
Party Claim
|
|
|
Transfer
Taxes
|
5.1(a)
|
EXHIBIT
B
ASSIGNMENT AND ASSUMPTION AGREEMENT AND XXXX OF SALE
(see
attached)
EXHIBIT
C
NOTES
(see
attached)
