BARMAG AGREEMENT
ISOLYSER COMPANY, INC.
AND
THANTEX HOLDINGS, INC.
July __, 1998
BARMAG AGREEMENT, dated July ___, 1998 (this "Agreement"), between
ISOLYSER COMPANY, INC., a Georgia corporation ("Seller"), and THANTEX HOLDINGS,
INC., a Delaware corporation ("Purchaser"). Certain capitalized terms shall have
the meaning set forth in Article I.
WHEREAS, Seller owns certain equipment and leasing rights in Charlotte,
North Carolina which the Seller desires to transfer and the Purchaser desires to
acquire in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants hereinafter set forth, and other valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Purchaser and Seller hereby agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. Certain Defined Terms. (a) As used in this Agreement, the
following terms shall have the following meanings:
"Affiliate" of a specified Person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by or is
under common control with, such specified Person.
"BarMag Equipment" means that certain manufacturing line acquired by
the Seller from American BarMag Corporation and located in Charlotte, North
Carolina and more fully described in Section 1.01 of the Disclosure Statement.
"Control" (including the terms "controlled by" and "under common
control with") means the possession, directly or indirectly or as a trustee or
executor (in each case, acting in a fiduciary capacity), of the power to direct
or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, as trustee or executor (in each
case, acting in a fiduciary capacity), by contract or credit arrangement or
otherwise.
581507.1
"Disclosure Statement" means the Disclosure Statement dated as of the
date hereof delivered to Purchaser by Seller.
"Encumbrance" means a pledge, lien, security interest, mortgage,
charge, adverse claim of ownership or use, or other encumbrance of any kind,
other than ad valorem taxes not yet due and payable.
"Equipment Related Property" means (1) all inventory of spare and
replacement parts relating to the BarMag Equipment, (2) all plans, manuals,
records and other documents relating to the BarMag Equipment, (3) the
Intellectual Property, if any, directly pertaining to the equipment or the
customized products such equipment has been designed or programmed to produce
(excluding any Orex 7 products).
"Governmental Authority" means any government, any governmental entity,
department, commission, board, agency or instrumentality, and any court,
tribunal, or judicial or arbitral body, whether federal, state, local or
foreign.
"Intellectual Property Rights" means (a) patent and patent
applications, (b) trademarks, service marks, logos, trade dress, trade names and
corporate names and registrations and applications for registration thereof, (c)
copyrights, whether registered or unregistered, and registrations and
applications for registration thereof and (d) trade secrets, formulas,
inventions, invention disclosures, know-how, manufacturing and production
processes and techniques, business and marketing plans, customer and supplier
lists, computer software and other proprietary business and intellectual
property rights.
"Knowledge of Seller" or "Seller's Knowledge" means the actual
knowledge of the executive officers of Seller after due inquiry of the executive
officers of Seller.
"Lease" means that certain lease by and between American BarMag
Corporation (ATenant") and Freeway Self Storage, LLC (the ALandlord") dated June
28, 1996.
"Losses" means any and all claims, actions or causes of action,
assessments, losses, damages, deficiencies, liabilities, costs and expenses
(including reasonable legal fees, interest, penalties, and all reasonable
amounts paid in investigation, defense or settlement of any of the foregoing)
actually suffered or incurred.
"Material Adverse Effect" means, with respect to any Person, any
change in, or effect on, the business of such Person that is materially adverse
to the business, operations, results of operations or the financial condition
thereof or an amount in excess of $10,000.
"Related Transactions" means those transactions by and among the
Purchaser, the Seller and their Affiliates more fully described on Exhibit A.
581507.1
-2-
"Sublease" means that certain sublease by and between American BarMag
Corporation (ASublandlord") and Seller (ASubtenant") dated July 1, 1996 for
approximately 10,000 square feet located in Mecklinburg County, North Carolina
which is the subject of the Lease.
"Subject Business Assets" means (i) the assignment of the Sublease,
(ii) the BarMag Equipment (iii) the Equipment Related Property of the BarMag
Equipment and (iv) any tangible personal property belonging to the Seller or its
Affiliates located on the property of the Sublease on the day of Closing unless
the Seller and Purchaser agree in writing otherwise at or prior to Closing.
ARTICLE II.
PURCHASE AND SALE
SECTION 2.01. Purchase Price. The Purchase Price for the Subject
Business Assets shall be $100,000. At the Closing, Purchaser shall deliver to
Seller the Purchase Price, by wire transfer in immediately available funds, to
an account or accounts designated at least three Business Days prior to the
Closing Date by Seller in a written notice to Purchaser.
SECTION 2.02 Closing Date. Subject to the terms and conditions of this
Agreement, the sale and purchase of the Subject Business Assets contemplated
hereby shall take place at a closing (the "Closing") to be held at 10:00 a.m.,
Thursday, August 6, 1998, or on the third Business Day following the
satisfaction or waiver of the conditions to the obligations of the parties. The
Closing will occur at the offices of Buist, Moore, Xxxxxx & XxXxx, P.A, 0
Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxxxx, or at such other time or on such
other date or at such other place as Seller and Purchaser may mutually agree
upon in writing (the day on which the Closing takes place being the "Closing
Date").
SECTION 2.03 Closing Documents. At the Closing, Seller shall execute
and deliver to Purchaser such transfer and other documents as required to
transfer the Subject Business Assets, together with such other instruments of
conveyance, affidavits, declarations, assignments and other supporting
documentation typically delivered in connection with a transaction of this type
and in accordance with local law or custom (collectively the "Closing
Documents") including:
(i) Xxxx of Sale in the form attached as Exhibit B
(ii) Assignment and Assumption of the Sublease in the form
attached as Exhibit C
(iii) Estoppel and Consents of Subtenant and Sublandlord in form
attached as Exhibit D
(iv) Release of all Encumbrances on the Subject Business Assets,
or other arrangements satisfactory to Purchaser and Seller
(v) Good Standing Certificates of Seller and Purchaser
581507.1
-3-
(vi) Officer's Certificate of Seller and Purchaser including
authorizing resolution, articles of incorporation with all
amendments, by-laws and incumbency certificates.
(vii) FIRPTA affidavit
SECTION 2.04. Allocation of Purchase Price. The Purchase Price shall be
allocated for tax purposes among each item or class of the Subject Business
Assets as set forth in Exhibit E of this Agreement. Seller and Purchaser agree
that they will prepare and file any notice or other filing required pursuant to
Section 1060 of the Internal Revenue Code, and that any notices or filings will
be prepared based upon such tax allocation of the Purchase Price. Purchaser
agrees to send to Seller a completed copy of its Form 8594 (Asset Acquisition
Statement under Section 1060) with respect to this transaction prior to filing
such form with the Internal Revenue Service.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser, as of the date of this
Agreement and through the Closing Date as follows:
SECTION 3.01. Incorporation and Authority of Seller. Seller is a
corporation duly incorporated and validly existing under the laws of Georgia.
Seller has all necessary corporate power and authority to enter into this
Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Seller, the performance by it of its obligations hereunder and the
consummation by it of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on the part of Seller. This
Agreement has been duly executed and delivered by Seller, and (assuming due
authorization. execution and delivery by Purchaser) this Agreement constitutes a
legal, valid and binding obligation of Seller enforceable against it in
accordance with its terms, subject to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting creditors'
rights generally and subject, as to enforceability, to the effect of general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 3.02. No Conflict. The execution, delivery and performance of
this Agreement by Seller does not and will not (a) violate or conflict with the
organizational documents of the Seller, (b) conflict with or violate any law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award applicable to the Subject Business Assets or (c) (other than the Lease and
Sublease) result in any breach of, or constitute a default (or event
581507.1
-4-
which with the giving of notice or lapse of time, or both, would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any Encumbrance on
any of the Subject Business Assets or properties of the Seller pursuant to, any
note, bond, mortgage, credit agreement, indenture, contract, agreement, lease,
license, permit, franchise or other instrument relating to such assets or
properties to which the Seller is a party or by which any of such assets or
properties is bound or affected, except as would not have a Material Adverse
Effect on the ability of Seller to consummate the transactions contemplated by
this Agreement.
SECTION 3.03. Consents and Approvals. The execution and delivery of
this Agreement by Seller does not, and the performance of this Agreement by
Seller will not, require any consent, approval, authorization or other action
by, or filing with or notification to, any Governmental Authority, except where
failure to obtain such consent, approval, authorization or action, or to make
such filing or notification, would not prevent Seller from, or delay Seller in,
performing any of its material obligations under this Agreement and would not
have a Material Adverse Effect on the ability of Seller to consummate the
transactions contemplated by this Agreement and except as may be necessary as a
result of any facts or circumstances relating solely to Purchaser.
SECTION 3.04. INTENTIONALLY DELETED.
SECTION 3.05. Absence of Certain Changes or Events. Since December 31,
1997, there has not been with respect to the Subject Business Assets (i) any
Material Adverse Effect, (ii) any damage, destruction or loss, due to fire or
other casualty, whether or not covered by insurance, that has or reasonably
could be expected to have a Material Adverse Effect, (iii) any change in
accounting methods, principles or practices by Seller materially affecting its
assets, liabilities or business, except insofar as may have been required by a
change in GAAP, (iv) any sale, lease, transfer, or assignment of any material
Subject Business Assets other than in the ordinary course of business, or (v)
any material capital expenditures other than in the ordinary course of business.
SECTION 3.06. Litigation. As of the date of this Agreement, there are
no claims, actions, proceedings or investigations pending, or to the Knowledge
of Seller, threatened against Seller with respect to the the Subject Business
Assets, before any court, arbitrator or administrative, governmental or
regulatory authority or body that are reasonably likely to have a Material
Adverse Effect on the operation of the Subject Business Assets. None of the
Subject Business Assets are subject to any order, writ, judgment, injunction,
decree, determination or award. Except as otherwise set forth in Section 3.06 of
the Disclosure Statement, each of the matters listed on Section 3.06 of the
Disclosure Statement is covered by insurance, and the insurer has acknowledged
coverage of each such matter without reservation.
SECTION 3.07. Compliance with Applicable Laws. Within the preceding
three years
581507.1
-5-
Seller has not violated or failed to comply with any statute, law, regulation,
rule, judgment, decree or order of any Governmental Authority applicable to the
Subject Business Assets, except for violations and failures to comply that would
not, individually or in the aggregate, have a Material Adverse Effect on the
Seller's use of the Subject Business Assets. The Seller's use of the Subject
Business Assets is in conformity with all federal, state and local governmental
and regulatory requirements applicable to the subject Business Assets, except
where such nonconformity would not, in the aggregate, have a Material Adverse
Effect on the ability of Seller to use or operate the Subject Business Assets.
Seller has all permits, licenses, franchises and certificates of occupancy from
Governmental Authorities required to use and operate the Subject Business
Assets, except for such permits, licenses, franchises and certificates the
absence of which would not, in the aggregate, have a Material Adverse Effect on
the ability of Seller to use and operate the Subject Business Assets.
SECTION 3.08. Environmental Matters. With respect to the Subject
Business Assets:
(a) Except as would not have a Material Adverse Effect on the
ability of Seller to use and operate the Subject Business Assets, Seller (i) is
in compliance with all applicable Environmental Laws and (ii) holds all
Environmental Permits necessary for its operations and properties and is in
compliance with the terms and conditions of all such Environmental Permits.
(b) Seller has not received any written claim, demand, notice
or complaint alleging violation of or liability (including without limitation
any liability for site investigation, cleanup or corrective action) under any
Environmental Laws.
(c) Except as would not have a Material Adverse Effect on the
ability of Seller to use and operate the Subject Business Assets, to Seller's
Knowledge, none of the following exists at the property which is subject to the
Sublease: (i) asbestos-containing material in any form or condition; (ii)
materials containing polychlorinated biphenyls; (iii) underground storage tanks
or surface impoundments; or (iv) landfills, surface impoundments or disposal
areas.
(d) Except as would not have a Material Adverse Effect on the
ability of Seller to use and operate the Subject Business Assets, Seller has not
treated, stored, disposed of, arranged for or permitted the disposal of,
transported, handled or released any Hazardous Material, or owned or operated
any facility or property, so as to give rise to liabilities for response costs,
natural resource damages or attorneys fees pursuant to CERCLA or other
Environmental Laws.
(e) No written notice of a release of a Hazardous Material has
been filed by or on behalf of Seller and no property or facility now or
previously owned or operated by Seller is on the CERCLA National Priorities List
(or proposed for such listing), the Comprehensive Environmental Response,
Compensation, and Liability Information System list or any similar state or
local list.
581507.1
-6-
(f) Seller has not, either expressly or, to Seller's
Knowledge, by operation of law, assumed or undertaken any liability, including
without limitation any obligation for corrective or remedial action, of any
other Person relating to Environmental Laws.
(g) For purposes of this Agreement:
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Environmental Laws" means any federal, state, local or
foreign statute, law, ordinance, regulation, rule or code. including any
judicial or administrative order, consent decree or judgment, relating to
pollution or protection of the environment or worker health and safety,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge,
investigation or cleanup of Hazardous Materials, in effect as of the date
hereof.
"Environmental Permits" means any permit, approval,
identification number, license or other authorization required of Seller under
any applicable Environmental Law.
"Hazardous Materials" means (a) any petroleum, petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials or polychlorinated biphenyls, (b) any chemical,
material or substance defined or regulated as toxic or hazardous under any
applicable Environmental Law or (c) anything that is a "hazardous substance"
pursuant to CERCLA, anything that is a "solid waste" or "hazardous waste"
pursuant to RCRA or any "pesticide", "pollutant", "contaminant", "toxic
chemical" or "noise".
"RCRA" means the Resource Conservation and Recovery Act, as
amended.
SECTION 3.09. Title and Condition of Properties. (a) Seller has good
and marketable title to, or valid leasehold interests in, all the Subject
Business Assets. The BarMag Equipment is free and clear of all Encumbrances.
(b) The real property which is the subject of the Lease and Sublease is
suitable for the uses for which this property is currently used and has
customary access to the utilities serving such property sufficient to allow the
use of the property as it is currently used except for interruptions in utility
service beyond Seller's control.
(c) To the Seller's Knowledge and in reliance upon, and subject to, the
affidavit attached as Exhibit F, the BarMag Equipment is in working order, and
contains all of the equipment and parts essential for running the manufacturing
line(s), except as disclosed in Section 3.09 of the Disclosure Statement.
581507.1
-7-
SECTION 3.10. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of the Seller.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
SECTION 4.01. Incorporation and Authority of Purchaser. Purchaser is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all necessary corporate power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by Purchaser, the performance by Purchaser of its
obligations hereunder and the consummation by Purchaser of the transactions
contemplated hereby have been duly authorized by all requisite corporate action
on the part of Purchaser. This Agreement has been duly executed and delivered by
Purchaser, and (assuming due authorization. execution and delivery by Seller)
constitutes a legal, valid and binding obligation of Purchaser enforceable
against Purchaser in accordance with its terms, subject to the effect of any
applicable bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability, to the
effect of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
SECTION 4.02. No Conflict. Except as may result from any facts or
circumstances relating solely to Seller, the execution, delivery and performance
of this Agreement by Purchaser does not and will not (a) violate or conflict
with the Certificate of Incorporation or By-laws (or other similar applicable
documents) of Purchaser, (b) conflict with or violate any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award applicable to
Purchaser or (c) result in any breach of, or constitute a default (or event
which with the giving of notice or lapse of time, or both, would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of any Encumbrance on
any of the assets or properties of Purchaser pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument relating to such assets or properties to which Purchaser or any
of its subsidiaries is a party or by which any of such assets or properties is
bound or affected, except as would not, individually or in the aggregate, have a
Material Adverse Effect on the ability of Purchaser to consummate the
transactions contemplated by this Agreement.
SECTION 4.03. Consents and Approvals. The execution and delivery of
this Agreement by Purchaser does not, and the performance of this Agreement by
Purchaser will not,
581507.1
-8-
require any consent, approval, authorization or other action by, or filing with
or notification to, any Governmental Authority, except (a) where failure to
obtain such consent, approval, authorization or action, or to make such filing
or notification, would not prevent Purchaser from, or delay Purchaser in,
performing any of its material obligations under this Agreement and (b) as may
be necessary as a result of any facts or circumstances relating solely to
Seller.
SECTION 4.04. Absence of Litigation. No claim, action, proceeding or
investigation is pending before any court, arbitrator or administrative,
governmental or regulatory authority or body that seeks to delay or prevent the
consummation of the transactions contemplated hereby or that would be reasonably
likely to materially and adversely affect or restrict Purchaser's ability to
consummate the transactions contemplated hereby.
SECTION 4.05. Brokers. No broker, finder or investment banker is
entitled to any brokerage, finder's or other fee or commission in connection
with the transactions contemplated by this Agreement based upon arrangements
made by or on behalf of Purchaser.
ARTICLE V.
ADDITIONAL AGREEMENTS
SECTION 5.01 No General Assumption. Except for the Sublease, Seller
shall transfer the Subject Business Assets to Purchaser free and clear of all
Encumbrances and without any assumption of liabilities and obligations.
Purchaser shall not assume or become responsible, by virtue of its purchase of
the Subject Business Assets, for any liabilities or obligations of Seller, other
than the Sublease.
SECTION 5.02 Prorations The expenses and accruals of the Subject
Business Assets, such as utilities, real and personal property taxes and rents,
shall be prorated as of the date of Closing, based upon the best available
information with corrections to be made by the parties when the final statements
or required information is available.
SECTION 5.03 Related Transactions The Closing on the Subject Business
Assets is to occur simultaneously with the closing on the other Related
Transactions. Each of the Related Transactions are contingent upon the closing
of the other Related Transactions.
SECTION 5.04. Confidentiality Agreement. The terms of the
confidentiality letter dated as of June 18, 1998 (the "Confidentiality
Agreement") between Seller and Purchaser are hereby incorporated herein by
reference and shall continue in full force and effect until the Closing and
shall survive the Closing.
SECTION 5.05 Post-Closing Consents. In the event that the Purchaser
should consent to close without any consent or estoppel certificate listed in
Section 2.03, the Seller
581507.1
-9-
agrees to use reasonable due diligence to obtain such Consent(s) after the
closing, provided that the Seller shall have no obligation to make any payments
to the party whose consent is required. The Seller and the Purchaser will
cooperate and assist each other in obtaining such consents after closing.
SECTION 5.04. Further Instruments. Each of the parties hereto shall
execute and deliver such documents and other papers and take such further
actions as may be reasonably required to carry out the provisions hereof and
give effect to the transactions contemplated hereby.
ARTICLE VI
INDEMNIFICATION
SECTION 6.01. Survival. Subject to the limitations and other provisions
of this Agreement, the representations, warranties, covenants and agreements of
the parties contained herein shall survive the Closing and shall remain in full
force and effect, regardless of any investigation made by or on behalf of Seller
or Purchaser, until 18 months following the Closing Date; provided however, that
the representations and warranties set forth in Section 3.01 and 4.01
(Incorporation and Authority) shall survive indefinitely.
SECTION 6.02 Indemnification Agreement. The indemnification agreement
by and among Isolyser Company, Inc., SafeWaste Corporation and White Knight
Healthcare, Inc. , as sellers and Thantex Specialties, Inc., White Knight
Industrial, Inc., SafeWaste, Inc. and Thantex Holdings, Inc., as purchasers of
even date shall control all matters relating to indemnification by either the
Seller or the Purchaser with respect to this Agreement. .
ARTICLE VII
MISCELLANEOUS PROVISIONS
SECTION 7.01. Waiver. At any time prior to the Closing, each of the
parties hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other party hereto, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto or (c) waive compliance with any of the agreements or
conditions contained herein. Any such extension or waiver shall be valid only if
set forth in an instrument in writing signed by the party to be bound thereby.
SECTION 7.03. Conveyance Taxes. All sales, transfer, stamp, property
transfer and similar Taxes incurred as a result of the sale of the Subject
Business Assets contemplated hereby shall be split equally between the Seller
and the Purchaser.
581507.1
-10-
SECTION 7.03. Expenses. The Seller shall pay all sales taxes, if
applicable, which are due and payable as a result of the Closing. Except as
otherwise expressly provided herein, all costs and expenses, including, without
limitation, fees and disbursements of counsel, financial advisors and
accountants, incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, whether or not the Closing shall have occurred.
SECTION 7.04. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given or made (and
shall be deemed to have been duly given or made upon receipt) by delivery in
Person, by courier service, by cable, by telecopy, by telegram, by telex or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at the following addresses (or at such other address for a
party as shall be specified in a notice given in accordance with this Section):
(a) if to Seller:
Isolyser Company, Inc.
000 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Chief Financial Officer
Telecopier: (000)000-0000
with a copy to:
Arnall Golden & Xxxxxxx, LLP
0000 Xxxx Xxxxxxxxx Xxxxxx
0000 Xxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxx, Esq.
Telecopier: (000)000-0000
(b) if to Purchaser:
Thantex Holdings, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx and Xxxxx X. Xxxx
Telecopier: (000) 0000000
581507.1
-11-
with a copy to:
Buist, Moore, Xxxxxx & XxXxx, PA
0 Xxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Telecopier (000) 000-0000
SECTION 7.05. Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 7.06. Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated hereby be consummated as originally
contemplated to the greatest extent possible.
SECTION 7.07. Entire Agreement. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, between
Seller and Purchaser with respect to the subject matter hereof and except as
otherwise expressly provided herein. The exhibits referred to in and attached to
this Agreement form a part of this Agreement and by reference are incorporated
herein.
SECTION 7.08. Assignment. Without the prior written consent of the
other party hereto, neither party hereto may assign its rights or delegate its
obligations hereunder.
SECTION 7.09. Amendment. This Agreement may not be amended or modified
except by an instrument in writing signed by Seller and Purchaser.
SECTION 7.10. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State.
SECTION 7.11. Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when
-12-
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, Seller and Purchaser have caused this BarMag
Agreement to be executed as of the date first written above by their respective
officers hereunto duly authorized.
ISOLYSER COMPANY, INC.
By:___________________________________
Its:__________________________________
THANTEX HOLDINGS, INC.
By:___________________________________
Its:__________________________________
-13-
