EXHIBIT 10.3
AMENDED AND RESTATED
PURCHASE AGREEMENT
THIS AMENDED AND RESTATED PURCHASE AGREEMENT ("AGREEMENT") is made and
entered into this 13th day of AUGUST, 1999, BY AND BETWEEN THE XXXXXXX-XXXXXXXX
COMPANY, AN OHIO CORPORATION ("SELLER"), and Novex Systems INTERNATIONAL, INC.,
A NEW YORK CORPORATION ("PURCHASER").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into a certain Purchase
Agreement, dated March 23, 1999, as amended pursuant to (i) that certain
Amendment to the Purchase Agreement dated May 14, 1999 and (ii) that certain
Second Amendment to the Purchase Agreement dated June 18, 1999;
WHEREAS, Seller and Purchaser desire to amend and restate such Purchase
Agreement, as amended, in accordance with the terms and conditions set forth
herein;
WHEREAS, SELLER, THROUGH ITS ALLIED COMPOSITIONS AND POR-ROK BUSINESSES
("ALLIED/POR-ROK OPERATIONS"), is ENGAGED IN THE BUSINESS OF MANUFACTURING,
DISTRIBUTING AND SELLING CEMENTITIOUS SPECIALTY PRODUCTS ("BUSINESS"); and
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires
to sell, assign, transfer and deliver to Purchaser, substantially all of the
assets and properties used in connection with the Business and Purchaser has
agreed to assume certain liabilities for the purchase price and upon the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
(a) The following terms, as used herein, have the following meanings:
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under
common control with such other Person.
"BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in the State of Delaware are
authorized by law to close.
"LIEN" means, with respect to any property or asset, any
mortgage, lien, pledge, charge, security interest or other similar
encumbrance with respect to such property or asset.
"PERMITTED LIEN" means (i) any Lien for which the underlying
liability is disclosed on the Financial Statements, (ii) any Lien for
taxes not yet due or being contested in good faith or (iii) any Lien
which does not materially detract from the value or materially
interfere with the use of any asset as currently used in the Business.
"PERSON" means an individual, corporation, partnership,
association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"TAX OR TAXES" means all taxes, fees or assessments in the
nature of taxes of Seller, including without limitation, all federal,
state, county and local income, unemployment, ad valorem, excise,
sales, use and gross receipts taxes, together with any interest and
penalties thereon imposed by any Taxing Authority whether arising prior
to, on or after the Closing Date.
"TAXING AUTHORITY" means any governmental authority (domestic
or foreign) responsible for the imposition of any Tax.
(b) Each of the following terms is defined in the Section set forth opposite
such term:
TERM SECTION
Accounts Receivable 2.01(c)
Assets 2.01
Benefit Arrangements 3.11(b)
Xxxx of Sale 9.02(b)
Cash Component 2.03(a)
Closing 9.01
Closing Date 9.01
Closing Date Statement 2.04(a)
Contracts 3.08
Corporate Services Agreement 5.08
ERISA 3.11(a)
Environmental Laws 3.12(a)
Excluded Assets 2.02
Financial Statements 3.06
Fixed Assets 2.01(a)
Improper Claim 6.03(a)(ii)(C)
Indemnifying Party 6.03(b)
Indemnified Party 6.03(b)
Inventory 2.01(b)
Material Adverse Effect 3.03(a)
Net Current Assets 2.04(a)
Non-Tendering Party 6.03(a)
Offering 8.05
Personal Claim 6.03
Promissory Note 2.03(b)
Proper Claim 6.03(a)(i)
Proprietary Rights 2.01(g)
Purchase Price 2.03
Purchaser's Indemnitees 6.01
Purchaser's Losses 6.01
Real Property 2.01(e)
Registration Rights Agreement 2.03
Seller Employee Plans 3.11(a)
Seller's Indemnitees 6.02
Seller's Losses 6.02
Tendering Party 6.03(a)
Third-Party Claim 6.03
Trademark License Agreements 5.09
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.01 ASSETS. On the terms and subject to the conditions set forth in this
Agreement, Seller agrees to sell, assign, transfer and deliver to
Purchaser, and Purchaser shall purchase, accept and acquire from
Seller, on the Closing Date all of Seller's right, title and interest
in and to the following assets relating solely TO THE BUSINESS
(COLLECTIVELY, THE "ASSETS"):
(a) all machinery, equipment, furniture, fixtures, vehicles,
tools, dies, molds and parts and similar PROPERTY LISTED ON
SCHEDULE 2.01(A) ("FIXED ASSETS");
(b) all inventory of raw materials, work in process, finished
products, packaging materials and supplies, labels,
containers, brochures, printed materials and displays and
other goods of the BUSINESS ("INVENTORY");
(C) ALL ACCOUNTS RECEIVABLE AND TRADE ACCOUNTS RECEIVABLE LISTED
ON SCHEDULE 2.01(C) ("ACCOUNTS RECEIVABLE");
(d) the owned real property located in Clifton, New Jersey, as
more specifically described on Schedule 2.01(d), including,
but not limited to, any buildings, structures, fixtures and
improvements located on, or attached to, said real property,
all of the rights arising out of the ownership thereof, and
all leases, subleases, franchises, licenses, easements, rights
of way and profits which are appurtenant to said real property
or as to which Seller otherwise has any right, title OR
INTEREST RELATING TO SUCH REAL PROPERTY ("REAL PROPERTY");
(e) all rights of Seller to and under any and all agreements,
contracts, orders, commitments and leases relating solely to
the Business;
(f) all rights of Seller with respect to the names "Allied
Compositions" and/or "Por-Rok" and the U.S. and foreign names,
patents, patent applications, marks, trade names, trademarks,
copyrights, COPYRIGHT APPLICATIONS AND LOGOS LISTED ON
SCHEDULE 2.01(F) ("PROPRIETARY RIGHTS");
(g) all customer lists, credit files of customers and supplier and
vendor files used by Seller in connection with the Business
(provided, however, with respect to any customer, supplier or
vendor which is also a customer, supplier or vendor of any of
Seller's other businesses, Purchaser shall only be entitled to
receive copies of any such lists and/or files and Seller shall
have the right to redact from such lists and/or files any and
all information contained therein which relate to any of
Seller's other business activities); and
(h) all merchandising items and promotional aids.
2.02 EXCLUDED ASSETS. It is expressly understood and agreed by the parties
hereto that the following assets of Seller and/or the Business are
specifically excluded and excepted from the Assets to be transferred
PURSUANT TO THIS AGREEMENT AND SHALL AT ALL TIMES REMAIN THE PROPERTY
OF SELLER (COLLECTIVELY, "EXCLUDED ASSETS"):
(a) cash and cash equivalents;
(b) bank accounts; and
(c) intercompany receivables (not to exceed Fourteen Thousand and
00/100 Dollars ($14,000.00).
2.03 PURCHASE PRICE. The purchase price for the Assets shall be Two Million
Fifty Thousand and 00/100 Dollars ($2,050,000.00) ("PURCHASE PRICE").
The Purchase Price shall be adjusted upward or downward on a
dollar-for-dollar basis, by the amount, if any, determined pursuant to
Section 2.04. The Purchase Price, prior to any upward or downward
adjustment determined pursuant to Section 2.04, shall be paid to Seller
as follows:
(A) SEVEN HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($750,000.00)
("CASH COMPONENT") shall be paid to Seller on the Closing Date
by wire transfer of immediately available funds to an account
designated by Seller in writing prior to the Closing Date; and
(b) The balance of the Purchase Price shall be paid in the form of
a Promissory Note of Purchaser in favor of Seller in the
principal amount of One Million Three Hundred Thousand and
00/100 Dollars (1,300,000.00) IN THE FORM ATTACHED HERETO AS
SCHEDULE 2.03(B) ("PROMISSORY NOTE").
As consideration for Purchaser's willingness to finance a portion of
the Purchase Price, Seller shall issue to Purchaser one million
(1,000,000) shares of common stock of Purchaser. Such shares shall be
freely tradable upon issuance or Purchaser and Seller shall enter into
a Registration Rights Agreement in the form ATTACHED HERETO AS SCHEDULE
2.03 ("REGISTRATION RIGHTS AGREEMENt").
2.04 ADJUSTMENT TO PURCHASE PRICE.
(a) Within thirty (30) days following the Closing Date,
Purchaser shall prepare and deliver to Seller A CLOSING DATE
STATEMENT ("CLOSING DATE STATEMENT"), which shall set forth,
as of the Closing DATE, THE NET CURRENT ASSETS OF THE
BUSINESS. FOR THE PURPOSES OF THIS SECTION 2.04, "NET
CURRENT ASSETS" shall mean the sum of Accounts Receivable
and Inventory. In preparing the Closing Date Statement,
Purchaser shall conduct a physical inventory of all
Inventory in accordance with the physical inventory
instructions attached as Schedule 2.04(a). The physical
inventory shall be conducted on the day immediately
preceding the Closing Date. The Inventory shall be valued in
accordance with the Business' past valuation practices.
(b) The Purchase Price shall be:
(i) increased, on a dollar-for-dollar basis, by the
amount, if any, that Net Current Assets of the
Business as set forth on the Closing Date Statement
are greater than Five Hundred Forty-Two Thousand Six
Hundred Seventy-One and 00/100 Dollars ($542,671.00);
and
(ii) decreased, on a dollar-for-dollar basis, by the
amount, if any, that Net Current Assets of the
Business as set forth on the Closing Date Statement
are less than Five Hundred Forty-Two Thousand Six
Hundred Seventy-One and 00/100 Dollars ($542,671.00).
(c) Seller shall be entitled to full access to the relevant
records and working papers of Purchaser and the Business to
aid Seller in its review of the Closing Date Statement. In
the event Seller and Purchaser are unable to agree on the
Closing Date Statement (as computed in accordance with this
Agreement) within thirty (30) days following Seller's
receipt of the Closing Date Statement, either Seller or
Purchaser shall be entitled to demand in writing that such
disagreement be submitted to arbitration to settle any such
dispute. Any such arbitration shall be conducted in the City
of New York, State of New York, by an arbitrator acceptable
to both Seller and Purchaser, or in the event Seller and
Purchaser cannot agree on a single arbitrator within ten
(10) days after any such written demand, by three (3)
arbitrators, one (1) of whom shall be appointed by Seller,
one (1) of whom shall be appointed by Purchaser and the
third of whom shall be appointed by the first two (2)
arbitrators. The parties agree that any issues involving
primarily financial matters shall be submitted to the public
accounting firm of PricewaterhouseCoopers LLP and that any
issues involving matters other than financial matters shall
be submitted to persons having legal expertise for
arbitration. If either party fails to appoint an arbitrator
within ten (10) days after the written demand for
arbitration identified above, then the arbitrator appointed
by the other party shall arbitrate any such disagreements in
accordance with this Section 2.04. Except as to the
selection of arbitrators as set forth herein, the
arbitration proceedings shall be conducted promptly and
expeditiously pursuant to the rules of the American
Arbitration Association. The decision of the arbitrator(s)
shall be final, conclusive and binding upon Seller and
Purchaser. Seller and Purchaser shall share equally the
expenses for a single arbitrator and the arbitration, or in
the event the parties cannot agree upon a single arbitrator,
each party shall bear the expenses of its arbitrator and
shall share equally with the other the expenses of a third
arbitrator and the arbitration.
(d) Within fifteen (15) calendar days after Seller and Purchaser
agree upon any Purchase Price adjustment pursuant to this
Section 2.04 or the Purchase Price adjustment is determined
through arbitration, Purchaser shall execute a revised
Promissory Note reflecting the Purchase Price, as adjusted,
less the Cash Component.
2.05 PURCHASE PRICE ALLOCATION. Seller and Purchaser covenant and agree that
the Purchase Price, subsequent to adjustment pursuant to Section 2.04,
shall be allocated among the Assets in accordance with Section 1060 of
the Internal Revenue Code and the regulations thereunder. Seller and
Purchaser agree that the fair market values of the Assets are set forth
on Schedule 2.05. Seller and Purchaser each hereby covenant and agree
that it will not take a position on any income tax return before any
governmental agency charged with the collection of any income tax or in
any judicial proceeding that is in any way inconsistent with the terms
of this Section 2.05.
2.06 ASSUMED LIABILITIES. Subject to the terms and conditions set forth
herein, Purchaser shall assume and agree to pay when due those
liabilities, obligations and commitments set forth on Schedule 3.08 (or
not required to be set forth therein because of the amount involved)
but not including any obligation or liability for (i) any breach
thereof occurring prior to the Closing Date or (ii) any monetary
payments which are due and payable on or before the Closing Date.
Except as set forth in this Section 2.06, it is acknowledged and agreed
that Purchaser shall not assume or be responsible for any other
liabilities, obligations or commitments of Seller, including, without
limitation, any (A) liabilities, obligations or commitments relating to
product liability claims arising from products sold prior to the
Closing Date, (B) environmental liabilities and costs relating to
activities or events occurring prior to the Closing Date, (C) Taxes of
Seller which have accrued prior to the Closing Date, (D) liabilities in
respect of employees or any employee benefit plan relating to
activities or events occurring prior to the Closing Date, and (E)
liabilities resulting from any litigation relating to activities or
events occurring prior to the Closing Date.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby represents and warrants to Purchaser the following:
3.01 ORGANIZATION, STANDING AND AUTHORITY OF SELLER.
(a) Seller is a corporation duly organized, validly existing and
in good standing under the laws of the State of Ohio. Seller
has all requisite power and authority to execute and deliver
this Agreement and to perform its obligations hereunder.
(b) The execution and delivery of this Agreement by Seller and the
performance by Seller of the transactions contemplated herein
have been duly authorized by all necessary corporate action on
the part of Seller. This Agreement and all documents required
to be executed and delivered by Seller hereunder constitute
legal, valid and binding obligations of Seller enforceable
against Seller in accordance with their terms.
3.02 FINANCIAL INFORMATION. The unaudited income statement for the twelve
months ended December 31, 1998 and BALANCE SHEET OF THE BUSINESS AS OF
DECEMBER 31, 1998 ARE ATTACHED AS SCHEDULE 3.02 ("FINANCIAL
Statements"). The Financial Statements were prepared from Seller's
internal accounting records and were prepared in conformity with
Seller's prior accounting practices applied on a consistent basis. To
the best of Seller's knowledge, the Financial Statements fairly present
the financial condition of the Business as of the date thereof and the
results of operations for the period then ended. SELLER MAKES NO
REPRESENTATION OR WARRANTY WITH RESPECT TO ANY FINANCIAL INFORMATION
FOR THE BUSINESS DELIVERED TO PURCHASER OTHER THAN AS CONTAINED IN THIS
SECTION 3.02. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 3.02,
SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
WITH RESPECT TO THE FINANCIAL INFORMATION PRESENTED IN THE FINANCIAL
STATEMENTS.
3.03 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as set forth on Schedule
3.03, since December 31. 1998, to the best of Seller's knowledge, the
Business has operated only in the ordinary course of business
consistent with past practices and there has not been:
(a) any event, condition or occurrence which has had or could
reasonably be expected to have a material adverse effect on
the assets or financial condition of the Business taken as a
whole ("MATERIAL ADVERSE EFFECT");
(b) any incurrence, assumption or guarantee by the Business of any
third party indebtedness from a non-Affiliate for borrowed
money other than in the ordinary course of business and in
amounts and on terms consistent with past practices; or
(c) any creation or other incurrence of any Lien other than in the
ordinary course of business consistent with past practices.
3.04 GOVERNMENT AUTHORIZATIONS. Except for the consent required to be
obtained pursuant to the New Jersey INDUSTRIAL SITE RECOVERY ACT AND
ANY RULES OR REGULATIONS PROMULGATED THEREUNDER ("ENVIRONMENTAL
CONSENT"), to the best of Seller's knowledge, no consent, approval or
authorization of, or declaration, filing or registration with, any
federal, state, local or other governmental or regulatory authority is
required in connection with the execution and delivery by Seller of
this Agreement and the consummation by Seller of the transactions
contemplated hereby.
3.05 TITLE TO AND CONDITION OF REAL PROPERTY. Schedule 3.05 sets forth all
real property owned or leased by Seller and used in the Business.
Subject to all Liens reflected on public records and all taxes and
assessments which are not yet due and payable, Seller has good title to
the Real Property. All leases are valid, binding and enforceable in
accordance with their respective terms and, to the best of Seller's
knowledge, there does not exist under any such lease any material
default or any event which with notice or lapse of time or both would
constitute a material default.
3.06 SUFFICIENCY OF PERSONAL PROPERTY. Except as set forth on Schedule 3.06,
to the best of Seller's knowledge, the Business has good and marketable
title to all machinery, equipment, furniture, fixtures, tooling, dies,
leasehold improvements and all other tangible personal property used by
the Business and such property is substantially in good operating
condition and repair, subject to ordinary wear and tear. EXCEPT AS
OTHERWISE STATED IN THIS SECTION 3.06, SELLER MAKES NO OTHER
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO SAID
TANGIBLE PERSONAL PROPERTY.
3.07 PROPRIETARY RIGHTS.
(a) Schedule 2.01(f) lists all U.S. and foreign names, patents,
patent applications, marks, trade names, trademarks,
copyrights, copyright applications and logos used solely in
the Business.
(b) Except as set forth on Schedule 3.07(b), no proceedings have
been instituted or are pending or, to the best of Seller's
knowledge, threatened which challenge the validity of the
ownership or use by Seller or the Business of the Proprietary
Rights.
(c) Seller has no knowledge of the infringing use of any
Proprietary Rights or the infringement of any of such
Proprietary Rights by any other person.
3.08 MATERIAL CONTRACTS. Schedule 3.08 sets forth a list of all written,
oral or other contracts and agreements (COLLECTIVELY, "CONTRACTS") to
which the Business is bound which:
(a) have a remaining obligation in excess of Ten Thousand Dollars
and 00/100 ($10,000.00);
(b) are partnership, joint venture or other similar cooperative
arrangements; and
(c) are union, agency, dealer, sales representative, marketing or
other similar agreement that is not terminable on not more
than ninety (90) days notice.
To the best of Seller's knowledge, all Contracts listed on Schedule
3.08 are valid, existing and enforceable in accordance with their terms
and in full force and effect. Seller has provided to Purchaser a true
and complete copy of all written Contracts with all amendments and
modifications thereto. Neither the Business nor, to the best of
Seller's knowledge, any other party to any of the foregoing have
violated or breached any material provision of any of the Contracts.
Each of the Contracts identified on Schedule 3.08 were entered into by
the Business in the ordinary course of business.
3.09 COMPLIANCE WITH LAWS. Except as set forth on Schedules 3.09, 3.12 and
3.13, the Business has substantially complied with and is in
substantial compliance with all federal, state, local and foreign laws,
statutes, regulations and judicial and/or administrative decisions
applicable to the Business, except for any non-compliance which does
not have, individually or in the aggregate, a Material Adverse Effect.
3.10 LITIGATION. Except as set forth on Schedule 3.10, to the best of
Seller's knowledge, there is no suit, claim, action, arbitration,
proceeding or investigation, pending or threatened, against Seller
relating to the Business.
3.11 EMPLOYEE BENEFITS.
(a) Schedule 3.11(a) lists each material "employee benefit plan",
as such term is defined in Section 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
which (i) is maintained, administered or contributed to by
Seller or any of its Affiliates and (ii) covers any CURRENT
EMPLOYEE (COLLECTIVELY, "SELLER EMPLOYEE PLANS"). With respect
to each Seller Employee Plan, Seller has provided or made
available to Purchaser a true and complete copy of such plan
document (or a summary description of such Seller Employee
Plan).
(b) Schedule 3.11(b) lists each material employment, severance
or similar contract, arrangement or policy (exclusive of any
such contract which is terminable within thirty (30) days
without liability to the Seller), and each material plan or
arrangement providing for severance, insurance coverage
(including any self-insured arrangements), workers'
compensation, disability benefits, supplemental unemployment
benefits, vacation benefits, pension or retirement benefits
or for deferred compensation, profit-sharing, bonuses, stock
options, stock appreciation rights or other forms of
incentive compensation or post-retirement insurance,
compensation or benefits that (i) is not a Seller Employee
Plan, (ii) is entered into, maintained or contributed to by
Seller or any of ITS AFFILIATES AND (III) COVERS ANY CURRENT
EMPLOYEE (COLLECTIVELY, "BENEFIT ARRANGEMENTS").
3.12 ENVIRONMENTAL COMPLIANCE. Except as described on Schedule 3.12:
(a) no notice, notification, demand, request for information,
citation, summons or order has been received, no complaint
has been filed, no penalty has been assessed and, to the
best of Seller's knowledge, no investigation or review is
pending or threatened by any governmental or other entity
relating to the Business pursuant to any federal, state or
local laws, regulations or orders applicable to the Business
relating to the use, generation, treatment, storage,
transportation, disposal or release of any hazardous, toxic
or radioactive material or substance or waste into the
ENVIRONMENT ("ENVIRONMENTAL LAWS"), except for any of the
foregoing which does not have, individually or in the
aggregate, a Material Adverse Effect; and
(b) to the best of Seller's knowledge and except where the failure
to do so would not have a Material Adverse Effect, the
Business has obtained all material permits, licenses or
similar authorizations required under the applicable
Environmental Laws.
3.13 TAX MATTERS. Except as set forth on Schedule 3.13, to the best of its
knowledge, Seller has:
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(a) timely filed all Tax returns required to be filed by Seller
with any Taxing Authority to which Seller has been subject;
and
(b) timely paid in full all amounts due to each Taxing Authority.
3.14 INSURANCE. The Assets of Seller are adequately insured under various
policies of general liability and other forms of insurance, all of
which are in full force and effect in accordance with their terms, no
written or oral notice of cancellation has been received, and, to the
best of Seller's knowledge, there is no existing default or event
which, with the notice or lapse of time or both, would constitute a
default thereunder. All premiums related to such policies have been
paid in full.
3.15 BROKERAGE. No broker, finder or agent has acted directly or indirectly
for Seller and/or the Business in connection with this Agreement or
with the transactions contemplated hereby.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
Purchaser hereby represents and warrants to Seller the following:
4.01 ORGANIZATION, GOOD STANDING AND AUTHORITY OF PURCHASER.
(a) Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of State of New York.
Purchaser has all requisite power and authority to execute and
deliver this Agreement and to perform its obligations
hereunder.
(b) The execution and delivery by Purchaser and the performance by
Purchaser of the transactions contemplated herein have been
duly authorized by all necessary corporate action on the part
of Purchaser. This Agreement and all documents required to be
executed and delivered by Purchaser hereunder constitute
legal, valid and binding obligations of Purchaser enforceable
against Purchaser in accordance with their terms.
4.02 CAPITALIZATION; TITLE TO SHARES.
(a) The authorized capital stock of Purchaser consists of
60,000,000 shares including 50,000,000 shares of common
stock, par value $.001 per share, and 10,000,000 shares of
preferred stock, par value $.001 per share. Immediately
following the consummation of the transactions described
herein, the number of issued and outstanding shares of
common stock of Purchaser will be 21,562,577. There are no,
and following consummation of the transactions described
herein, there will be no, issued and outstanding shares of
preferred stock of Purchaser. The capital stock of Purchaser
has been duly authorized and, to the extent issued and
outstanding, validly issued, fully paid and nonassessable.
Immediately following consummation of the transactions
described herein, there are outstanding options to acquire
1,300,924 shares of common stock of Purchaser and warrants
to acquire 706,365 shares of common stock of Purchaser.
Except as otherwise set forth in the preceding sentence,
there are no outstanding obligations, warrants, puts, calls,
rights to subscribe, agreements or other commitments or
rights of any kind or nature whatsoever to purchase any
securities of Purchaser, nor are there any outstanding
securities of Purchaser which are convertible into or
exchangeable for any shares of capital stock or other
securities of Purchaser. Purchaser has no obligation of any
kind or nature whatsoever to issue any additional shares of
its capital stock or other securities.
(b) The delivery of the shares of common stock of Purchaser
pursuant to Section 2.03 above will vest in Seller legal and
valid title to such shares, free and clear of all liens,
security interests or other encumbrances.
4.03 NO CONFLICT. Neither the execution and delivery of this Agreement nor
the Purchaser's performance of the transactions contemplated herein
will violate or conflict with any provisions of Purchaser's Certificate
of Incorporation or By-Laws.
4.04 BROKER'S OR FINDER'S FEES. No broker, finder or agent has acted
directly or indirectly for Purchaser in connection with this Agreement
or with the transactions contemplated by this Agreement.
4.05 FINANCING. As of the Closing Date, Purchaser shall have sufficient
cash, available lines of credit or other sources of immediately
available funds to enable it to purchase the Assets pursuant to Article
II hereof and pay any other amounts to be paid by it hereunder.
4.06 LITIGATION. There is no action, suit, investigation or proceeding
pending, or to the knowledge of Purchaser threatened, against Purchaser
before any court or arbitrator or any governmental body, agency or
official which in any manner challenges or seeks to prevent, enjoin,
alter or materially delay the transactions contemplated hereby.
ARTICLE V
COVENANTS
5.01 ACCOUNTS. On and after the Closing Date, Seller shall, within thirty
(30) days after receipt, forward to Purchaser any monies received by
Seller with respect to any goods and/or services delivered and/or
performed by the Business after the Closing Date.
5.02 REASONABLE EFFORTS; FURTHER ASSURANCES. Subject to the terms and
conditions of this Agreement, Purchaser and Seller will each use its
reasonable efforts to take, or cause to be taken, all actions and to
do, or cause to be done, all things necessary under applicable laws and
regulations, to consummate the transactions contemplated by this
Agreement. Seller and Purchaser each agree to execute and deliver such
other documents, certificates, agreements and other writings and to
take such other actions as may be necessary or desirable in order to
consummate the transactions contemplated by this Agreement and to vest
in Purchaser good title to the Assets.
5.03 ACCESS.
(a) On and after the Closing Date, Purchaser will afford promptly
to Seller and its agents reasonable access to the Business'
properties, books, records, employees and auditors to the
extent necessary to permit Seller to determine any matter
relating to its rights and obligations hereunder or to
determine any matter relating to its rights and obligations
with respect to any event occurring or period ending before
the Closing Date (including, without limitation, the ability
to make copies of books and records, as Seller deems
necessary); provided that any such access by Seller shall not
unreasonably interfere with the conduct of the Business.
(b) On and after the Closing Date, Seller will afford promptly to
Purchaser and its agents, all at Purchaser's cost, reasonable
access to the Business' properties, books and records to the
extent necessary to permit Purchaser to conduct an audit of
the Business for the two (2) fiscal years preceding the
Closing Date and will provide all reasonable assistance and
cooperation in the conduct of such audit.
5.04 PLANT CLOSING NOTIFICATION. Purchaser shall be responsible for
providing any notice of layoff or plant closing required with respect
to any manufacturing facility of the Business pursuant to the Federal
Worker Adjustment and Retraining Notification Act of 1988, any
successor federal law and any applicable state or local plant closing
notification statute, for any such layoffs or plant closings which will
commence effective on or subsequent to the Closing Date.
5.05 PRORATIONS. Seller and Purchaser agree that the following prorations
relating to the Assets and the ownership and operation of the Business
will be made as of the Closing Date, with Seller liable to the extent
such items relate to any time period prior to the Closing Date and
Purchaser liable to the extent such items relate to periods including
and subsequent to the Closing Date:
(a) real estate taxes on or with respect to the Real Property;
(b) rents, additional rents, taxes and other items payable by
Seller under any lease to be assigned to or assumed by
Purchaser; and
(c) the amounts of rents, and other charges for sewer, water,
telephone, electricity and other utilities relating to the
Real Property.
Except as otherwise agreed by the parties, the net amount of all such
prorations will be settled and paid on the Closing Date. If the Closing
shall occur before a real estate tax rate is fixed, the apportionment
of real estate taxes shall be based upon the tax rate for the preceding
year applied to the latest assessed valuation.
5.06 TAXES.
(a) Seller shall (i) timely file on or after the Closing Date, all
Tax returns required to be filed by it for periods prior to
the Closing Date and (ii) timely pay all Taxes due by it for
periods prior to the Closing Date.
(b) Purchaser shall pay all transfer, documentary, sales, use,
stamp, registration, real property transfer and other such
taxes or fees incurred arising out of the transfer of the
Assets or otherwise by virtue of the consummation of the
transactions contemplated in this Agreement.
5.07 DISCLOSURE SCHEDULES.
(a) At any time and from time to time prior to the Closing Date,
Seller may deliver to Purchaser revised Schedules as may be
necessary to make the representations and warranties of
Seller contained herein true on the date hereof and/or on
and as of the Closing Date. Any delivery made by Seller
pursuant to the preceding sentence shall not affect any
right which Purchaser may have to elect not to close
pursuant to Section 8.01 if any matter disclosed in the
revised Schedules has a Material Adverse Effect, but if
Purchaser consummates the Closing, then the accuracy of the
representations and warranties of Seller, whether made on
the date hereof or on and as of the Closing Date, shall for
all purposes of this Agreement be determined with reference
to the Schedules as revised by Seller pursuant to the first
sentence of this Section 5.07(a). Seller shall provide
Purchaser with such additional information in their
possession as the Purchaser may reasonably request relating
to any Schedules revised pursuant to this Section 5.07(a).
Seller shall endeavor to provide any revised Schedules to
Purchaser at least seven days prior to the Closing Date but
nothing herein shall preclude Seller from delivering revised
Schedules up to the Closing. Notwithstanding the foregoing,
the rights of Seller to revise any Schedule prior to the
Closing Date shall not apply to Schedule 3.02, except as
otherwise mutually agreed by the parties.
(b) If at any time prior to the date hereof or from the date
hereof to the Closing Date, Purchaser is or becomes aware of
any matter which should be disclosed by Seller in a Schedule,
Purchaser shall promptly provide notice to Seller of such
matter.
5.08 CORPORATE SERVICES. On the Closing Date, Purchaser and Seller shall
execute and deliver a corporate SERVICES AGREEMENT IN THE FORM ATTACHED
HERETO AS SCHEDULE 5.08 ("CORPORATE SERVICES AGREEMENT") pursuant to
which Seller shall make available to Purchaser certain administrative
support services which are currently being provided to the Business on
a basis, and for a price, substantially consistent with Seller's recent
historical practices including, without limitation, accounting
services, order processing services and credit approval.
5.09 TRADEMARK LICENSE AGREEMENT. On the Closing Date, Seller shall provide
for Purchaser's execution trademark LICENSE AGREEMENTS IN THE FORMS
ATTACHED HERETO AS SCHEDULE 5.09A AND 5.09B ("TRADEMARK LICENSE
Agreements") pursuant to which Purchaser shall obtain a non-exclusive,
non-assignable, fully paid-up license to use, for the term indicated
therein, the trademark "Minwax" on any and all packaging materials for
products sold in the Business and on any and all copyrighted and
non-copyrighted promotional and sales materials, office supplies and
product literature being purchased and sold hereunder on which "Minwax"
appears on the Closing Date.
5.10 NO SOLICITATION. From and after the date hereof and until the Closing
or the termination of this Agreement, whichever comes first, Seller
shall not solicit, initiate or encourage any inquiries or offers
relating to the acquisition of the Business.
ARTICLE VI
INDEMNIFICATION
6.01 SELLER'S INDEMNIFICATION. Seller agrees to indemnify, defend and hold
Purchaser, its directors, officers, employees, subsidiaries and
affiliates, and the successors and assigns of any of the foregoing
("PURCHASER'S INDEMNITEES"), harmless from and against any and all
claims, liabilities, obligations, demands, damages, losses, costs,
expenses (including reasonable attorney's fees), fines, penalties,
judgments and amounts paid in settlement imposed on, asserted against
or incurred by Purchaser's Indemnitees and which arise out of, in
connection with, result from or are incident to any of the following
(COLLECTIVELY, "PURCHASER'S LOSSES"):
(a) misrepresentations or breaches of any representation or
warranty (but only to the extent Purchaser has fully complied
with its obligations set forth in Section 5.07(b)), covenant,
obligation or agreement of Seller in this Agreement or in any
document or agreement furnished or to be furnished by Seller
under this Agreement; and
(b) any claim of product liability or personal injury arising from
products sold prior to the Closing Date;
(c) any liability for Taxes of Seller;
(d) any claim, action, suit or demand for any legal,
administrative or other proceeding identified on Schedule
3.10;
(e) any liability arising from employee benefit plans retained by
Seller, worker's compensation or long-term disability claims
arising from conduct or events occurring prior to the Closing
Date, whether or not asserted as of the Closing Date; and
(f) all claims, demands, damages, costs, expenses, losses,
liabilities, penalties, fines, suits and proceedings
(including attorney's fees) arising or resulting from (i)
the violation of or the enforcement by any federal, state or
local governmental entity or any third party of any
Environmental Laws or the remediation of hazardous materials
(as defined in the Environmental Laws) resulting from the
operation of the Business; (ii) any liability relating to
the Business claimed to arise under any Environmental Law,
as now or hereafter enacted, reauthorized or amended,
arising out of facts or circumstances occurring prior to the
Closing Date, or otherwise arising out of or resulting from
the operation of the Business prior to the Closing Date; or
(iii) conditions caused, events occurring or activities at
the Real Property or with respect to the Business prior to
the Closing Date which result in any emission, disposal,
deposit, contamination, release or discharge of hazardous
materials or regulated substances (whether on or off of the
Real Property) covered or regulated by Environmental Laws.
6.02 PURCHASER'S INDEMNIFICATION. Purchaser agrees to indemnify, defend and
hold Seller, its directors, officers, employees, subsidiaries,
affiliates and the successors and assigns, of any of the foregoing
("SELLER'S INDEMNITEES") harmless from and against any and all claims,
liabilities, obligations, demands, damages, losses, costs, expenses
(including reasonable attorney's fees), fines, penalties, judgments and
amounts paid in settlement, imposed on, asserted against or incurred by
Seller's Indemnitees and which arise out of, in connection with, result
from or are incident to any of the following (collectively, "SELLER'S
LOSSES"):
(a) misrepresentations or breaches of any representation or
warranty, covenant, obligation or agreement of Purchaser in
this Agreement or in any document or agreement furnished or to
be furnished by Purchaser under this Agreement;
(b) the Assumed Liabilities; and
(c) any liabilities and/or obligations of the Business, regardless
of whether the events or circumstances giving rise to any such
liability and/or obligation occurred prior to, on or after the
Closing Date, except for matters for which Seller has provided
indemnification pursuant to Section 6.01.
6.03 CLAIM FOR INDEMNIFICATION. Any party seeking indemnification under the
provisions of this Agreement, WITHIN NINETY (90) DAYS AFTER THE TIME IT
DISCOVERS THAT IT HAS A CLAIM AGAINST ANOTHER PARTY (A "PERSONAL
CLAIM") or promptly upon receipt of written notice of any claim or the
service of a summons or other initial legal process upon it in any
action instituted against it which relates to this Agreement (a
"THIRD-PARTY CLAIM"), shall give written notice of such claim, or the
commencement of such action, to the party from whom indemnification
will be sought hereunder.
(A) THIRD PARTY CLAIM. In the event of a Third-Party Claim, the
party seeking indemnification ("TENDERING PARTY") shall tender
the defense of such Third Party Claim to the party from whom
INDEMNIFICATION IS SOUGHT ("NON-TENDERING PARTY"). The
Non-Tendering Party shall, within ten (10) days after the
receipt thereof, inform the Tendering Party in writing that
the Non-Tendering Party will either:
(I) ACCEPT THE TENDER OF THE DEFENSE WITHOUT A
RESERVATION OF RIGHTS. If the Non-Tendering Party
agrees that the Third Party Claim is a claim for
which indemnification is provided FOR PURSUANT TO THE
TERMS OF THIS AGREEMENT ("PROPER CLAIM"), the
Non-Tendering Party shall accept the tender of the
defense without a reservation of rights. In such an
event the Non-Tendering Party shall control all
aspects of the defense of such Third Party Claim and
shall indemnify the Tendering Party in accordance
with this Article VI.
(II) ACCEPT THE TENDER OF THE DEFENSE WITH A RESERVATION
OF RIGHTS. If the Non-Tendering Party questions
whether the Third Party Claim is a Proper Claim, the
Non-Tendering Party may accept the tender of the
defense with a reservation of rights. In such an
event, the Non-Tendering Party shall submit such
Third Party Claim to arbitration immediately in order
to determine whether it is a Proper Claim. While the
arbitration is pending, the Non-Tendering Party shall
control all aspects of the defense of such Third
Party Claim.
If the decision of the arbitrator(s) is that it is:
(A) a Proper Claim, and the Third Party Claim is
still pending, the Non-Tendering Party shall
continue the defense of such Third Party
Claim and shall defend, indemnify and hold
the Tendering Party harmless in accordance
with this Article VI;
(B) a Proper Claim, but the Third Party Claim
has already been concluded, the
Non-Tendering Party shall indemnify and hold
the Tendering Party harmless in accordance
with this Article VI;
(C) a claim for which indemnification is not provided for
pursuant to the terms of THIS AGREEMENT ("IMPROPER
CLAIM"), and the Third Party Claim is still pending,
the Non-Tendering Party shall return all aspects of the
defense of such Third Party Claim immediately to the
Tendering Party. In such an event, the Tendering Party
shall assume the control of all aspects of the defense
of such Third Party Claim immediately and shall
reimburse the Non-Tendering Party for all costs and
Expenses (including, but not limited to, reasonable
attorneys fees) incurred by the Non-Tendering Party in
the defense of such Third Party Claim; or
(D) an Improper Claim, but the Third Party Claim has
already been concluded, the Tendering Party shall
reimburse the Non-Tendering Party for all costs and
expenses (including, but not limited to reasonable
attorneys fees) incurred by the Non-Tendering Party in
the defense of such Third Party Claim and shall
reimburse the Non-Tendering Party for all amounts paid
by the Non-Tendering Party for judgments or settlements
relating to such Third Party Claim.
(III) REJECT THE TENDER OF THE DEFENSE. If the
Non-Tendering Party decides that the Third Party
Claim is an Improper Claim, the Non-Tendering Party
shall reject the tender of the defense. In such an
event, the Non-Tendering Party shall submit such
Third Party Claim to arbitration immediately in order
determine whether it is a Proper Claim. While the
arbitration is pending, the Tendering Party shall
control all aspects of the defense of such Third
Party Claim. If the decision of the arbitrator(s) is
that it is:
(A) a Proper Claim, and the Third Party Claim is still
pending, the Tendering Party shall transfer the control
of all aspects of the defense of such Third Party Claim
to the Non-Tendering Party. The Non-Tendering Party
shall assume the defense of such Third Party Claim
immediately and shall reimburse the Tendering Party for
all costs and expenses (including, but not limited to,
reasonable attorneys fees) incurred by the Tendering
Party in the defense of such Third Party Claim and
shall defend, indemnify and hold the Tendering Party
harmless in accordance with this Article VI;
(B) a Proper Claim, but the Third Party Claim has already
been concluded, the Non-Tendering Party shall indemnify
and hold the Tendering Party harmless in accordance
with this Article VI;
(C) an Improper Claim, and the Third Party Claim is still
pending, the Tendering Party shall continue to control
all aspects of the defense of such Third Party Claim;
or
(D) an Improper Claim, but the Third Party Claim has
already been concluded, the Tendering Party shall bear
all Losses incurred by the Tendering Party relating to
such Third Party Claim.
(B) PERSONAL CLAIM. In the event of a Personal Claim, the party from
whom indemnification is sought --------------- ("INDEMNIFYING
PARTY") shall, within thirty (30) days after the receipt of the
claim for INDEMNIFICATION, SEND WRITTEN NOTICE TO THE PARTY
SEEKING INDEMNIFICATION ("INDEMNIFIED PARTY") indicating whether
the claim is disputed. If the claim is disputed, the Indemnifying
Party shall submit the matter to arbitration in order to
determine if it is a Proper Claim and, if it is a Proper Claim,
to determine the amount of such claim. To the extent that the
arbitrator(s) rules that a Personal Claim is a Proper Claim
and/or to the extent that a Personal Claim is not disputed, the
Indemnifying Party shall promptly indemnify the Indemnified Party
in accordance with Article VI.
6.04 ARBITRATION PROCEDURE. Any arbitration conducted pursuant to this
Article VI shall be conducted in accordance with Section 2.03 of this
Agreement. If a party is required to submit a matter to arbitration
pursuant to Section 6.03, and such party fails or refuses to do so
within ten (10) days, the other party may submit the matter to
arbitration. In any matter which is submitted to arbitration pursuant
to this Article VI, the party seeking indemnification shall bear the
burden of proof. If the prevailing party is the party seeking
indemnification, the prevailing party shall be entitled to receive from
the indemnifying party all sums due under the indemnification
provisions plus all costs and reasonable attorneys' fees incurred by
the prevailing party relating to the arbitration.
6.05 LIMITATION ON INDEMNIFICATION. The indemnification obligations of
Seller provided for in Section 6.01
shall expire:
(a) on the first anniversary of the Closing Date with respect to
claims pursuant to Section 6.01(a);
(b) on the third anniversary of the Closing Date with respect to
claims pursuant to Sections 6.01(b), 6.01(d) and 6.01(e);
(c) on the fifth anniversary of the Closing Date with respect to
claims pursuant to Section 6.01(f); and
(d) upon the expiration of any applicable statue of limitations
with respect to claims pursuant to Section 6.01(c).
With respect to any Purchaser's Losses, Purchaser's Indemnities shall
not be entitled to indemnification therefor until the aggregate amount
of such Purchaser's Losses exceed a threshold of Twenty-Five Thousand
Dollars ($25,000.00) whereupon Purchaser's Indemnitees shall be
entitled to indemnification hereunder for the aggregate amount of such
Purchaser's Losses in excess of Twenty-Five Thousand Dollars
($25,000.00) up to a maximum liability cap of One Million Dollars
($1,000,000.00); provided, however, that Purchaser has paid to Seller
in cash a minimum of One Million Dollars ($1,000,000.00) of the
Purchase Price consisting of the Cash Component and at least Two
Hundred Thousand Dollars ($200,000.00) of principal due under the
Promissory Note. In the event that Seller has not received a minimum of
One Million Dollars ($1,000,000.00) in cash at such time as Purchaser
makes a claim for indemnification pursuant to this Article VI, then the
maximum liability cap pertaining to such claim(s) shall equal the sum
of the Cash Component and the amount of any principal received by
Seller under the Promissory Note. Notwithstanding the foregoing,
Purchaser's Losses with respect to claims pursuant to Section 6.01(b)
shall not be subject to the maximum liability cap.
ARTICLE VII
CONDITIONS PRECEDENT TO SELLER?S OBLIGATIONS
Notwithstanding the execution and delivery of this Agreement or the
performance of any part hereof, Seller's obligations to consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction
of each of the conditions set forth in this Article VII by the time for Closing
on the Closing Date, except to the extent that such satisfaction is waived in
writing by Seller.
7.01 REPRESENTATIONS AND WARRANTIES OF PURCHASER. All representations and
warranties made by Purchaser in this Agreement shall be true and
correct in all respects on the date hereof, and shall be true and
correct in all respects on the Closing Date as though such
representations and warranties were again made, without exception or
deviation, on the Closing Date.
7.02 PERFORMANCE OF THIS AGREEMENT. Purchaser shall have duly performed or
complied with all the obligations under this Agreement to be performed
or complied with by Seller on or prior to the Closing Date.
7.03 ABSENCE OF PROCEEDINGS. No proceeding shall have been instituted or
threatened on or before the Closing Date by any Person, the result of
which did or could prevent or make illegal the consummation of all or
any of the transactions contemplated by this Agreement, or which had or
could have a material adverse effect on the business of Purchaser.
ARTICLE VIII
CONDITIONS PRECEDENT TO PURCHASER?S OBLIGATIONS
Notwithstanding the execution and delivery of this Agreement or the
performance of any part hereof, Purchaser?s obligation to consummate the
transactions contemplated by this Agreement shall be subject to the satisfaction
of each of the conditions set forth in this Article VIII by the time for Closing
on the Closing Date, except to the extent that such satisfaction is waived by
Purchaser in writing.
8.01 REPRESENTATIONS AND WARRANTIES OF SELLER. All representations and
warranties made by Seller in this Agreement shall be true and correct
in all respects on the date hereof, and shall be true and correct in
all respects on the Closing Date as though such representations and
warranties were made again, without exception or deviation, on the
Closing Date.
8.02 MATERIAL ADVERSE EFFECT. There shall not exist any matter on the
Closing Date which has a Material Adverse Effect and which was not
disclosed to Purchaser in a Schedule on the date hereof.
8.03 PERFORMANCE OF THIS AGREEMENT. Seller shall have duly performed or
complied with all of the covenants and obligations under this Agreement
to be performed or complied with by them on or prior to the Closing
Date.
8.04 ABSENCE OF PROCEEDINGS. No proceeding shall have been instituted or
threatened on or before the Closing Date by any Person against Seller
the result of which did or could prevent or make illegal the
consummation of all or any of the transactions contemplated by this
Agreement.
8.05 COMPLETION OF FINANCING. The parties hereto fully understand that
Purchaser shall undertake to offer to SELL SECURITIES TO RAISE THE
FINANCING FROM THIRD-PARTIES ("OFFERING") to pay Seller the Purchase
Price. Seller fully understands that Purchaser's obligation to purchase
the Assets at the Closing is fully conditional upon its ability to
timely complete the Offering to finance the purchase of such Assets.
Notwithstanding anything stated to the contrary, in the event Purchaser
shall not complete the Offering prior to the Closing, and that Seller
elects not to extend the period for the Closing, then this Agreement
shall terminate immediately and neither party shall have any rights or
obligations under or relating to this Agreement or the subject matter
hereof immediately thereafter.
ARTICLE IX
CLOSING
9.01 CLOSING. THE CLOSING OF THE PURCHASE AND SALE OF THE ASSETS PURSUANT TO
THIS AGREEMENT ("CLOSING") shall TAKE PLACE ON OR BEFORE AUGUST 13,
1999, AS MUTUALLY AGREED BY PURCHASER AND SELLER ("CLOSING DATE"), at
the offices of The Xxxxxxx-Xxxxxxxx Company, 000 Xxxxxxxx Xxxxxx, X.X.,
Xxxxxxxxx, Xxxx 00000 or at such other place as may be mutually agreed
upon by the parties. The Closing shall be effective as of 12:00:01 a.m.
on the Closing Date.
9.02 DELIVERIES OF SELLER. Seller shall deliver to Purchaser at the
Closing:
(a) copies, certified by the Secretary or Assistant Secretary of Seller, of
resolutions of Seller's board of directors authorizing the execution,
delivery and performance of this Agreement and all other agreements,
documents and instruments relating hereto and the consummation of the
transactions contemplated in this Agreement, which certification shall
recite that such resolutions have not been subsequently amended, modified
or rescinded and are in full force and effect;
(b) the Registration Rights Agreement;
(C) THE XXXX OF SALE IN THE FORM ATTACHED HERETO AS SCHEDULE 9.02(B) ("XXXX OF
SALE");
(d) the Corporate Services Agreement;
(e) the Trademark License Agreements; and
(f) such other Closing documents as Purchaser may reasonably request.
9.03 DELIVERIES OF PURCHASER. Purchaser shall deliver to Seller at the Closing:
(a) the Cash Component of the Purchase Price in the manner provided in Section
2.03;
(b) the Promissory Note;
(c) the Registration Rights Agreement;
(d) copies, certified by the Secretary or Assistant Secretary of Seller, of
resolutions of Seller's board of directors authorizing the execution,
delivery and performance of this Agreement and all other agreements,
documents and instruments relating hereto and the consummation of the
transactions contemplated in this Agreement, which certification shall
recite that such resolutions have not been subsequently amended, modified
or rescinded and are in full force and effect;
(e) the Xxxx of Sale;
(f) the Corporate Services Agreement;
(g) the Trademark License Agreements;
(h) sales tax exemption certificates reasonably requested by Seller, including,
but not limited to, New Jersey resale and manufacturing exemption
certificates; and
(i) such other Closing documents as Purchaser may reasonably request.
ARTICLE X
EXPENSES
Purchaser and Seller will bear their own respective expenses,
including, without limitation, counsel and accountants' fees, in connection with
the preparation and negotiation of, and transactions contemplated under, this
Agreement.
ARTICLE XI
MISCELLANEOUS
11.01 NOTICES. Any notices, requests, claims, demands, instructions and other
communications to be given hereunder to any party shall be in writing
and delivered in person, sent by certified mail, postage prepaid,
return receipt requested, or by facsimile transmission with a confirmed
telephonic transmission answer back, to the following addresses (or at
such other address or number as is given in writing by one party to the
others pursuant hereto):
If to Seller: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx, Xxxx 00000
Attn: Vice President-Corporate Planning
and Development
Telecopy No.: (000) 000-0000
with a copy to: The Xxxxxxx-Xxxxxxxx Company
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxxxx, Xxxx 00000
Attn: Vice President, Secretary and
General Counsel
Telecopy No.: (000) 000-0000
If to Purchaser: Novex Systems International, Inc.
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10005
Attn: Xxxxxx X. Xxxx, President
Telecopy No.: (000) 000-0000
with a copy to: Xxxx, Capetanakis & Xxxxxx
00 Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 10005
Attn: Xxxxxxx Xxxxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
11.02 AMENDMENTS. This Agreement may be amended only upon the mutual written
consent of the parties hereto.
11.03 DUPLICATES, ORIGINALS COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same agreement.
11.04 ENTIRE AGREEMENT. This Agreement, including the Schedules hereto,
constitutes the entire agreement between the parties with respect to
the subject matter hereof and supersedes all prior agreements and
understandings between the parties. There are no representations,
warranties, undertakings or agreements between the parties with respect
to the subject matter of this Agreement except as set forth herein.
11.05 NON-ASSIGNABILITY. Neither of the parties hereto may assign its rights,
interests, obligations or liabilities under this Agreement or delegate
its duties without the prior written consent of the other party.
11.06 PUBLIC ANNOUNCEMENTS. Seller and Purchaser shall consult with each
other before issuing any press release or otherwise making any public
statement relating to the transactions contemplated hereby, and shall
not issue any such press release or make any such public statement
without the consent of the other party (which consent shall not be
unreasonably withheld or delayed) except as may be required by law.
11.07 HEADINGS. The headings contained in this Agreement are for convenience
of reference only and shall not affect the interpretation of this
Agreement.
11.08 GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Ohio.
11.09 SEVERABILITY. In the event any term or provision of this Agreement
shall be deemed to be illegal, invalid or unenforceable for any reason,
such illegality, invalidity or unenforceability will not affect any
other term or provision of this Agreement and the parties shall
endeavor to replace the invalid or null and void provision(s) with such
which correspond best to the intentions of the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date hereinbefore stated.
WITNESS: THE XXXXXXX-XXXXXXXX COMPANY
_________________________________ By: _________________________________
_________________________________ Title: _________________________________
WITNESS: NOVEX SYSTEMS INTERNATIONAL, INC.
_________________________________ By: _________________________________
_________________________________ Title: _________________________________
