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Exhibit 10.10
PURCHASE AGREEMENT
This Agreement is made effective as of the 4th day of May, 1997, by and
among Prophecy Co., an Ohio corporation (the "G.P. Buyer"), Prophecy Ltd.
Partner Co., an Ohio corporation (the "L.P. Buyer") (G.P. Buyer and L.P. Buyer
sometimes referred to collectively as the "Buyers"), Xxxxxxx Brothers
Acquisition, Inc., a Delaware corporation ("GB"), The Xxx X. Xxxxxxxxxxxxx
Descendants Trust ("JLS Trust"), The Xxx X. Xxxxx Descendants Trust ("ASD
Trust"), The Xxxxx X. Xxxxxxx Descendants Trust ("SSD Trust"), The
Schottenstein Family Limited Partnership, an Ohio limited partnership ("SFLP")
(GB, JLS Trust, ASD Trust, SSD Trust, and SFLP collectively referred to herein
as the "Sellers"), and Prophecy Limited Partnership, an Ohio limited
partnership (the "Partnership").
WHEREAS, GB is the general partner of the Partnership and owns a 2%
general partnership interest (the "GB Interest") in the Partnership under the
Certificate and Agreement of Limited Partnership, dated as of November 22, 1994
(the "Partnership Agreement"); and
WHEREAS, JLS Trust is a limited partner of the Partnership and owns a
35.92% limited partnership interest (the "JLS Trust Interest") in the
Partnership under the Partnership Agreement;
WHEREAS, ASD Trust is a limited partner of the Partnership and owns a
20.54% limited partnership interest (the "ASD Trust Interest") in the
Partnership under the Partnership Agreement;
WHEREAS, SSD Trust is a limited partner of the Partnership and owns a
20.54% limited partnership interest (the "SSD Trust Interest") in the
Partnership under the Partnership Agreement;
WHEREAS, SFLP is a limited partner of the Partnership and owns a 5%
limited partnership interest (the "SFLP Interest") in the Partnership under the
Partnership Agreement;
WHEREAS, the G.P. Buyer desires to purchase the general partner interest
in the Partnership through the purchase of the GB Interest, and the L.P. Buyer
desires to purchase the limited partner interests in the Partnership through
the purchase of the JLS Trust Interest, the ASD Trust Interest, the SSD Trust
Interest, and the SFLP Interest (all of the interests, collectively, to be
referred to as the "Purchased Interests") and the Sellers desire to sell and
assign all of their Purchased Interests in the Partnership to the Buyers,
pursuant to the terms of this Agreement;
WHEREAS, upon giving effect to such sale and assignment of the Purchased
Interests, the G.P. Buyer shall become the substituted general partner of the
Partnership and the L.P. Buyer shall become the substituted limited partner of
the Partnership, each holding a percentage interest in the Partnership
according to an amended agreement of limited partnership to be agreed upon
between the G.P. Buyer and the L.P. Buyer following the Closing (the "Amended
Partnership Agreement"); and
WHEREAS, all of the partners of the Partnership have consented to the sale
and assignment of the Purchased Interests to the Buyers.
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NOW, THEREFORE, in consideration of the promises and the mutual benefits
to be derived from this Agreement and of the respective agreements and
covenants set forth herein, the parties, intending to be legally bound, agree
as follows:
I. CLOSING
1.1 CLOSING. The closing with respect to the transactions provided for in
this Agreement (the "Closing") shall take place upon the signing of this
Agreement to be effective the close of business on May 4, 1997 (the "Effective
Date").
II. SALE OF THE PURCHASED INTERESTS AND RELATED TRANSACTIONS
2.1 SALE OF PURCHASED INTERESTS. On the terms set forth in this Agreement,
the Sellers hereby sell, convey, assign, transfer and deliver to the Buyers,
and the Buyers hereby purchase and accept from the Sellers, effective as of the
Effective Date, the entire right, title and interest in and to the Purchased
Interests, free and clear of all liens, security interests, taxes, charges,
encumbrances and claims of every kind, for an aggregate purchase price not to
exceed One Million Six Hundred Thousand ($1,600,000) Dollars (the "Purchase
Price"). The Purchase Price shall be allocated among the Sellers prorata in
proportion to their percentage ownership interests in the Partnership and shall
be paid by the Buyers in the following manner: (A) $900,000 cash payment at
Closing; and (B) provided only if Buyers continue to own and operate the
Partnership business, then contingent payments of $233,333 to be paid on each
of the first two anniversaries of the Closing and $233,334 to be paid on the
third anniversary of the Closing. The amount of these contingent payments is
subject to adjustment as set forth in Section 2.2 below.
2.2 ADJUSTMENT TO PURCHASE PRICE. As soon as practicable after the
Effective Date, the Sellers and Buyers shall jointly prepare a balance sheet
based on the Partnership's books and records as of the close of business on
March 31, 1997 (hereinafter referred to as the "Closing Balance Sheet"). If the
Closing Balance Sheet shows an increase or decrease of more than $50,000 (a
"Material Increase" or "Material Decrease") in the net book value of the
Partnership as compared to the negative net book value of $1,730,000 shown on
the preliminary balance sheet the Partnership as of December 31, 1996 (the
"Preliminary Balance Sheet"), the contingent purchase price payments set forth
in Section 2.1 shall be adjusted according to this Section 2.2. For purposes of
making such an adjustment, if the Closing Balance Sheet shows a Material
Increase, then the contingent payments shall be increased dollar for dollar for
every dollar of such Material Increase. Or, in the alternative, if the Closing
Balance Sheet shows a Material Decrease, then the contingent payments shall be
reduced dollar for dollar for every dollar of such Material Decrease. Any such
resulting adjustment to the Purchase Price shall be added or deducted from the
contingent payments equally. If the Closing Balance Sheet shows neither a
Material Increase nor a Material Decrease, there shall be no adjustment to the
contingent payments.
2.3 CONTINUATION OF PARTNERSHIP AS A PARTNERSHIP. On and after the
Closing, and effective as of the Effective Date, the G.P. Buyer shall be a
substituted general partner, and the L.P. Buyer a
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substituted limited partner in the Partnership, pursuant to the Amended
Partnership Agreement. Notwithstanding the above, the Partnership shall be
deemed to terminate with respect to the Sellers.
2.4 LIQUIDATION OPTION. If the Buyers, in their sole discretion, elect to
terminate the operation of the business of the Partnership (not including the
continuation of the business in a different legal entity) at any time during
the three years after the Closing, the Buyers shall provide Sellers written
notice of their intention to either sell or wind-up and liquidate the
Partnership business. Upon receipt of the notice, Sellers shall have the right,
exercisable for a period of 30 days by written notice to the Buyers, to acquire
the Partnership business at a price to be agreed upon.
2.5 TAXES. The Sellers shall prepare, execute and file all tax returns
relating to, and the Sellers shall be responsible for and pay when due, any and
all sales, real estate, transfer or use or other tax due with regard to the
purchase and sale of the Purchased Interests.
III. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLERS AND
THE PARTNERSHIP
Each of the Sellers, jointly and severally, hereby represents and warrants
to the Buyers and agrees as follows:
3.l EXISTENCE AND GOOD STANDING. GB is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and has the power and authority to own, operate and lease its properties, to
carry on its business as now being conducted and to enter into this Agreement
and perform its obligations hereunder. Each of JLS Trust, ASD Trust, and SSD
Trust is a trust duly organized and validly existing under the laws of the
State of Ohio, and has the power and authority to own, operate and lease its
properties, to carry on its business as now being conducted and to enter into
this Agreement and perform its obligations hereunder. SFLP is a limited
partnership duly organized, validly existing and in good standing under the
laws of the State of Ohio, and has the power and authority to own, operate and
lease its properties, to carry on its business as now being conducted and to
enter into this Agreement and perform its obligations hereunder.
3.2 OWNERSHIP OF PURCHASED INTERESTS. Each of GB, JLS Trust, ASD Trust,
SSD Trust and SFLP is the lawful owner of their respective Purchased Interests,
free and clear of all security interests, liens, encumbrances and claims of
every kind. Sellers have full legal right power and authority to enter into
this Agreement and to sell, assign, transfer and convey the Purchased Interests
pursuant to this Agreement. The delivery to the Buyer of the Purchased
Interests pursuant to the provisions of this Agreement will transfer to the
Buyer valid title thereto, free and clear of all security interests, liens,
encumbrances and claims of every kind, except with respect to the GB Interest,
which may be subject to such encumbrances arising solely as a result of its
representing a general partner interest in the Partnership.
3.3 ORGANIZATION, POWER, AND GOOD STANDING OF PARTNERSHIP. The Partnership
is a limited partnership, duly organized, validly existing and in good standing
under the laws of the State of
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Ohio. The Sellers have furnished to the Buyer a true, complete and correct copy
of the Partnership Agreement, which remains in full force and effect without
modification through the Closing. The Partnership has all requisite power and
authority to own, operate and lease its properties, to carry on its business as
now being conducted and to enter into this Agreement and perform its
obligations hereunder. The Partnership is duly qualified to do business as a
foreign partnership and is in good standing in each of the jurisdictions in
which the property operated by the Partnership or the nature of its business
makes such qualification necessary except where failure to so qualify would not
have a material adverse effect on the financial condition of the Partnership
and would not in any way affect the enforceability of this Agreement.
3.4 AUTHORITY RELATIVE TO AGREEMENT. The execution, delivery and
performance of this Agreement and all documents and instruments to be delivered
in connection herewith by each of the Sellers has been duly and effectively
authorized by all necessary corporate, trustee or partnership action of the
Partnership and the Sellers. This Agreement has been duly executed by each of
the Sellers and is a valid, legally binding and enforceable obligation of each
of the Sellers.
3.5 EFFECT OF AGREEMENT. The execution, delivery and performance of this
Agreement and all documents and instruments to be delivered in connection
herewith by each of the Sellers and the consummation by each of them of the
transactions contemplated hereby and thereby does not (i) require the consent,
approval or authorization of any person, corporation, partnership, joint
venture or other business association or public authority; (ii) violate, with
or without the giving of notice or the passage of time, or both, any provisions
of law or statue or any rule, regulation, order, award, judgement or decree of
any court or governmental authority applicable to any of the Sellers; or (iii)
conflict with or result in a breach or termination of any provision of, or
constitute a default under, or result of the creation of any lien, charge or
encumbrance upon any of the assets of the Partnership or the Purchased
Interests pursuant to any corporate charter, by law, partnership agreement,
indenture, mortgage, deed of trust, lease, contract, agreement or other
instrument, or any order, judgement, award, decree, statue, ordinance,
regulation or any other restriction of any kind or character, to which any of
the Sellers is a party, or by which any of the Sellers or any of the Purchased
Interests may be bound.
3.6 FINANCIAL STATEMENTS. The Sellers and the Partnership have heretofore
furnished the Buyers with the Preliminary Balance Sheet, which represents the
preliminary balance sheet of the Partnership as of December 31, 1996. The
Closing Balance Sheet fairly presents the financial condition of the
Partnership at the date thereof.
3.7 TITLE TO PROPERTIES; ENCUMBRANCES. Except for properties and assets
reflected in the Closing Balance Sheet which have been sold or otherwise
disposed of in the ordinary course of business, the Partnership has good, valid
and marketable title to all of its material properties and assets (real and
personal, tangible and intangible), including, without limitation, all of the
properties and assets reflected in the Closing Balance Sheet, except as
indicated in any notes thereto.
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3.8 PARTNERSHIP CONTRACTS. The Partnership neither has nor is bound by any
agreement, contract, obligation, lease or commitment that would have a material
adverse effect on the Partnership or this Agreement or that could not be
cancelled without penalty upon 30 days notice. Each agreement, contract,
obligation, lease and commitment of the Partnership is in full force and effect
and there exists no default or event of default or event, occurrence, condition
or act (including the sale of the Purchased Interests hereunder) which, with
the giving of notice, the lapse of time or the happening of any other event or
condition, would become a default or event of default thereunder. The
Partnership has not violated any of the terms or conditions of any agreement,
contract, obligation, lease or commitment in any material respect, and, to the
best knowledge, information and belief of the Partnership and the Sellers, all
of the covenants to be performed by any other party thereto have been performed
in all material respects.
3.9 LITIGATION. There is no action, suit, proceeding at law or in equity,
arbitration or administrative or other proceeding by or before or any
investigation by any governmental or other instrumentality or agency, pending,
or, to the best knowledge, information and belief of the Partnership and the
Sellers, threatened, against or affecting the Partnership which, if adversely
determined, would have a material adverse effect on the business of the
Partnership; and the Sellers do not know of any valid basis for any such
action, proceeding or investigation. The Partnership is not subject to any
judgment, order or decree entered in any lawsuit or proceeding.
3.10 TAXES. The Partnership has filed or caused to be filed, within the
times and within the manner prescribed by law, all federal, state, local and
foreign tax returns and tax reports which are required to be filed by, or with
respect to the Partnership. All federal, state, local and foreign income,
profits, franchise, sales, use, occupancy, excise and other taxes and
assessments (including interest and penalties) payable by, or due from, the
Partnership prior to the Effective Date have been or will be fully paid by the
Sellers. No examination of any tax return of the Partnership is currently in
progress other than a New York state payroll tax inquiry for the quarter ended
June 30, 1995. There are no outstanding agreements or waivers extending the
statutory period of limitation applicable to any tax return of the Partnership.
Where requested, the Partnership has provided the Buyers accurate and complete
copies of all tax returns filed by the Partnership. The Sellers shall pay or
immediately reimburse the Buyers on demand all tax liabilities of every nature
whatsoever incurred by the Partnership on or prior to the Effective Date or as
a result of the transactions contemplated by this Agreement.
3.11 LIABILITIES. The Partnership has no outstanding claims, liabilities
or indebtedness, contingent or otherwise, of a type required to be accrued
under generally accepted accounting principles, except as set forth in the
Closing Balance Sheet or incurred in the ordinary course of its business after
the date thereof. The Partnership is not in default in respect of the terms or
conditions of any indebtedness.
3.12 COMPLIANCE WITH LAWS. The Partnership is in compliance in all
material respects with all applicable laws, regulations, orders, judgments and
decrees.
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3.13 NO CHANGES SINCE THE CLOSING BALANCE SHEET DATE. Since the date of
the Closing Balance Sheet, except as expressly contemplated hereby or except as
incurred in the ordinary course of business, the Partnership has not (a)
incurred any liability or obligation of any nature, whether accrued, absolute,
contingent or otherwise, (b) permitted any of its assets to be subjected to any
mortgage, pledge, lien, security interest, encumbrance, restriction or charge
of any kind, (c) sold, transferred or otherwise disposed of any assets, (d)
made any capital expenditure or commitment therefor, (e) made any bonus or
profit sharing distribution or payment of any kind, (f) incurred indebtedness
for borrowed money or made any loan, (g) written off as uncollectible any notes
or accounts receivable, (h) cancelled or waived any claims or rights, (i) made
any change in any method of accounting or auditing practice, (j) otherwise
conducted its business or entered into any transaction, except in the usual and
ordinary manner and in the ordinary course of business, or (k) agreed, whether
or not in writing, to do any of the foregoing.
3.14 DISCLOSURE. None of this Agreement, the Closing Balance Sheet, or any
document delivered in accordance with the terms hereof contains any untrue
statement of a material fact, or omits any statement of a material fact
necessary in order to make the statements contained herein or therein not
misleading. There is no fact known to the Partnership or the Sellers which
materially and adversely affects the business, prospects or financial condition
of the Partnership or its properties or assets, which has not been set forth in
this Agreement or any document delivered in accordance with the terms hereof.
3.15 INVENTORY; ACCOUNTS RECEIVABLE. The inventory, including, without
limitation finished goods, inventory in-transit, work-in-progress, piece goods
and trim, of the Partnership reflected on the Closing Balance Sheet is carried
on the books of the Partnership at the lower of cost (first-in, first-out
basis) or market, plus or minus any adjustments agreed to by the Buyer in
connection with preparation of the Closing Balance Sheet. The accounts
receivable reflected in the Closing Balance Sheet (the "Accounts Receivable")
represent valid obligations arising from sales actually made or services
actually performed in the ordinary course of business. The Accounts Receivable
are currently collectable net of the respective reserves, if any, shown on the
Closing Balance Sheet (which reserves are adequate and calculated consistent
with past practice), and, to Sellers' knowledge, there is no contest, claim, or
right of set-off with any obligor of an Accounts Receivable relating to the
amount or validity of such Accounts Receivable in excess of the amount of the
reserves.
3.16 BROKER'S OR FINDER'S FEES. No agent, broker, person or firm acting on
behalf of the Sellers or the Partnership is, or will be, entitled to any
commission or broker's or finder's fees from any of the parties hereto, or from
any person or entity controlling, controlled by or under common control with
any of the parties hereto, in connection with any of the transactions
contemplated by this Agreement.
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IV. REPRESENTATIONS AND WARRANTIES OF THE BUYERS.
Buyers, jointly and severally, represent and warrant to the Sellers as
follows:
4.1 ORGANIZATION; GOOD STANDING; POWER. Each of the Buyers is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Ohio and has all requisite corporate power and authority
to own, lease and operate its properties, to carry on its business and to enter
into this Agreement and perform its obligations hereunder and thereunder. Each
of the Buyers is duly qualified to do business as a foreign corporation and is
in good standing in each of the jurisdictions in which the property owned,
leased or operated by it or the nature of the business conducted by it after
the consummation of the transaction contemplated hereunder makes such
qualification necessary.
4.2 AUTHORITY RELATIVE TO AGREEMENT, ETC. The execution, delivery and
performance of this Agreement and all documents and instruments to be delivered
in connection herewith and the transactions contemplated hereby and thereby by
the Buyers have been duly and effectively authorized by all necessary corporate
action of the Buyers. This Agreement has been duly executed by the Buyer and is
a valid, legally binding and enforceable obligation of the Buyers.
4.3 EFFECT OF AGREEMENT. The execution, delivery and performance of this
Agreement and all documents and instruments to be delivered in connection
herewith by the Buyers and the consummation of the transactions contemplated
hereby will not (i) require the consent, approval or authorization of any
person, corporation, partnership, joint venture or other business association
or other public authority; (ii) violate, with or without the giving of notice
or the passage of time, or both, any provisions of law applicable to the
Buyers; or (iii) conflict with or result in a breach or termination of any
provision of, or constitute a default under, or result in the creation of any
lien, charge or encumbrance upon any of the properties or assets of the Buyers
pursuant to any indenture, corporate charter, bylaw, agreement, indenture,
mortgage, deed of trust, lease, contract, agreement or other instrument or any
order, judgment, award, decree, statute, ordinance, regulation or any other
restriction of any kind or character, to which the Buyers are a party, or by
which the Buyers or any of their assets or properties may be bound.
V. NATURE AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION
5.1 SURVIVAL OF REPRESENTATIONS, ETC. All representations, warranties and
agreements made by the Sellers, on the one hand, or the Buyers on the other
hand, in this Agreement or in any document or instrument delivered pursuant to
the provisions hereof or in connection with the transactions contemplated
hereby, and the remedies of the Sellers, on the one hand, or the Buyers on the
other hand, with respect thereto, shall survive the Closing hereunder.
5.2 INDEMNIFICATION. (a) Each Seller, jointly and severally, shall
indemnify, pay on behalf of, defend and hold harmless each Buyer, its parent,
and their directors, officers, employees, agents
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and successors and assigns (collectively, the "Buyer Parties"), from and
against any and all demands, claims, actions or causes of action, losses,
damages, liabilities, costs and expenses, including, without limitation, the
costs of investigation and reasonable attorney's fees and expenses, asserted
against, resulting to, imposed upon or incurred by the Buyer Parties arising
out of or relating to any breach of this Agreement by any of the Sellers or the
performance by any of the Sellers of any of their obligations under this
Agreement; provided, however, each Sellers liability hereunder shall be limited
to no more than the amount of the Purchase Price actually received by such
Seller.
(b) Each Buyer, jointly and severally, shall indemnify, pay on behalf
of, defend and hold harmless each Seller, its affiliates, and their trustees,
directors, officers, employees, agents and successors and assigns
(collectively, the "Seller Parties"), from and against any and all demands,
claims, actions or causes of action, losses, damages, liabilities, costs and
expenses, including, without limitation, the costs of investigation and
reasonable attorney's fees and expenses, asserted against, resulting to,
imposed upon or incurred by the Seller Parties arising out of or relating to
any breach of this Agreement by any of the Buyers or the performance by any of
the Buyers of any of their obligations under this Agreement.
(c) No claim shall be made for indemnification under this Article V by
a party, unless and until the total value of all claims by the party exceed
$50,000, in which event only claims exceeding such amount may be recovered. No
claim shall be made for indemnification under this Article V by a party unless
written notice of the claim has been sent to the other party on or before two
(2) years from the Closing.
VI. MISCELLANEOUS
6.1 FURTHER ASSURANCES; RECORDS, ETC. (a) From time to time after the
Closing, upon the reasonable request of the other party hereto, each party will
execute, deliver and acknowledge all such further instruments and documents as
the other may reasonably require to further evidence the completion of the
transactions contemplated under this Agreement.
(b) On and after the Closing, Buyers will permit the Sellers and their
representatives reasonable access to the books, records and accounts of the
Partnership reasonably necessary to prepare, review or audit any of the
financial statements or tax returns of any of them, and Buyers and the Sellers
agree to cooperate with each other in preparing and filing tax returns to the
extent deemed reasonably necessary by both parties.
6.2 AMENDMENT. This Agreement may be amended, modified or supplemented
only by a written instrument executed by all the parties hereto. Except as
provided in the preceding sentence, no action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained herein. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a waiver of any
subsequent breach.
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6.3 EXPENSES. Whether or not the transactions contemplated by this
Agreement are consummated, the Buyers shall pay the fees and expenses of their
counsel, accountants, other experts and all other expenses incurred by them
incident to the negotiation, preparation and execution of this Agreement, and
the Sellers shall pay any and all such fees and expenses incurred by them or
the Partnership incident to the negotiation, preparation and execution of this
Agreement and the performance by the Sellers or the Partnership of their
obligations hereunder.
6.4 NOTICES. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given if delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid:
If to the Sellers, to:
c/o Xxxxx X. Xxxx, Esq.
Xxxxxxx Brothers Acquisition, Inc.
0000 Xxxxx Xxxx
Xxxxxxxx, Xxxx 00000
If to the Buyers, to:
Prophecy Co.
000 Xxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx
or to such other address as any party shall have specified by notice in writing
to the other.
6.5 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof.
6.6 BINDING EFFECT; BENEFITS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their successors and assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any
other person other than the parties hereto and the Buyer Parties and the Seller
Parties, or their successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
6.7 APPLICABLE LAW. This Agreement and the legal relations between the
parties hereto shall be governed by and in accordance with the laws of the
State of Ohio
6.8 COUNTERPARTS. This agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby,
have duly executed and delivered this Agreement as of the date first above
written.
SELLERS:
XXXXXXX BROTHERS ACQUISITION, INC. THE XXX X. XXXXXXXXXXXXX
DESCENDANTS TRUST
/s/ Xxxxxx X. Xxxxxxxx /s/ Xxx X. Xxxxxxxxxxxxx
------------------------------ ----------------------------
By: Xxxxxx X. Xxxxxxxx By: Xxx X. Xxxxxxxxxxxxx
Its: Vice President Its: Trustee
THE XXX X. XXXXX DESCENDANTS TRUST THE XXXXX X. XXXXXXX
DESCENDANTS TRUST
/s/ Xxx X. Xxxxx /s/ Xxxxx X. Xxxxxxx
------------------------------ ----------------------------
By: Xxx X. Xxxxx By: Xxxxx X. Xxxxxxx
Its: Trustee Its: Trustee
THE SCHOTTENSTEIN FAMILY LIMITED PARTNERSHIP
/s/ Xxx X. Xxxxxxxxxxxxx
------------------------------
By: Xxx X. Xxxxxxxxxxxxx
Its: General Partner
G.P. BUYER: L.P. BUYER
PROPHECY CO. PROPHECY LTD. PARTNER CO.
/s/ Xxxxxx Xxxxxx /s/ Xxxxxx Xxxxxx
------------------------------ ------------------------------
By: Xxxxxx Xxxxxx By: Xxxxxx Xxxxxx
Its: Chief Operating Officer Its: Chief Operating Officer
THE PARTNERSHIP:
PROPHECY LIMITED PARTNERSHIP
By: Xxxxxxx Brothers Acquisition, Inc.,
its General Partner
/s/ Xxxxxx X. Xxxxxxxx
------------------------------
By: Xxxxxx X. Xxxxxxxx
Its: Vice President
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